General protections; race and colour as prescribed protected attributes

 

 

 

 

 

 

 

 

 

The Fair Work Act general protections provide (see sec 351) that an employer must not take adverse action against a person who is an employee or prospective employee of the employer because of inter alia the person’s race or colour together with a number of other protected attributers.

This is what the Fair Work Commission’s general protections benchbook says about this prohibition.

 

“Race

Race is a group of people who regard themselves as having a particular historical identity in terms of their colour, or their racial, national or ethnic origins.186F

The Racial Discrimination Act 1975 (Cth) (the Racial Discrimination Act) provides that it is unlawful for a person to do any act involving a distinction, exclusion, restriction or preference based on race, colour, descent or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life.187F

In determining cases about racial discrimination in employment under the Racial Discrimination Act, the Federal Court has held that the group with whom the complainant’s position is to be compared is not persons of the same race, colour, descent or national or ethnic origin as the complainant. Instead the comparison should be between persons of the same group as the complainant and members of other groups, regardless of whether or not those other groups are required to comply

with the same condition.81F

To substantiate a complaint of racial discrimination under the Racial Discrimination Act, it is not sufficient for a person to show that he or she is of a different race, colour, descent, national or ethnic background and has suffered unfair treatment. He or she must show that the unfair treatment was based on, or sufficiently connected to, his or her race, colour, descent or national or ethnic background.189F

Colour

Colour is a separate ground to race, however they often appear together in claims involving discrimination.

Sometimes a reference to the colour of a person’s skin can be taken to allude to a person’s race.190F  However this will depend on the circumstances of the case and in some contexts, a reference to being ‘white’ or ‘black’, for example, is not considered to be descriptive of any particular ethnic, national or racial group.91F  “