Fair Work Commission

Section 351

1. An employer must not take adverse action against a person who is an employee, or prospective employee, of the employer because of the person’s race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin.

2. However, subsection (1) does not apply to action that is:

   1. not unlawful under any anti-discrimination law in force in the place where the action is taken; or
   2. taken because of the inherent requirements of the particular position concerned; or

   3. if the action is taken against a staff member of an institution conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed – taken:

      1. in good faith; and
      2. to avoid injury to the religious susceptibilities of adherents of that religion or creed.

3. Each of the following is an anti-discrimination law:

   26. the Age Discrimination Act 2004;
   27. the Disability Discrimination Act 1992;
   28. the Racial Discrimination Act 1975;
   29. the Sex Discrimination Act 1984;
   30. the Anti-Discrimination Act 1977 of New South Wales;
   31. the Equal Opportunity Act 2010 of Victoria;
   32. the Anti-Discrimination Act 1991 of Queensland;
   33. the Equal Opportunity Act 1984 of Western Australia;
   34. the Equal Opportunity Act 1984 of South Australia;
   35. the Anti-Discrimination Act 1998 of Tasmania;
   36. the Discrimination Act 1991 of the Australian Capital Territory;
   37. the Anti-Discrimination Act of the Northern Territory.

What is the protection?

An employer is prohibited from taking adverse action against an employee or prospective employee because of a number of listed attributes.^[1]

Are there exceptions?

This protection does not extend to action that is:

• not unlawful under any anti-discrimination law in force in the place where the action is taken
• taken because of the inherent requirements of the particular position concerned, or
• if the action is taken against a staff member of an institution conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed – taken:
  • in good faith, and
  • to avoid injury to the religious susceptibilities of adherents of that religion or creed.

Adverse action and discrimination

Discrimination is any distinction, exclusion, restriction, or preference made on a particular basis, such as race, sex, religion, national origin, marital status, pregnancy, or disability, which has the purpose or effect of nullifying or impairing the recognition, enjoyment, or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural, or any other field of life.^[2] The element of intent is central. To discriminate requires a conscious decision to make a distinction, in this case between people.^[3]

However, although s.351 is headed ‘Discrimination’, it does not prohibit discrimination as such, but rather adverse action which is motivated by any one of a list of prohibited reasons which, generally speaking, may be said to fall under the heading of discriminatory conduct.^[4] Definitions of what may constitute ‘discrimination’ under anti-discrimination legislation are not imported into s.351, and conduct which breaches anti-discrimination legislation may not necessarily breach s.351.^[5] The focus must always be upon the occurrence of adverse action and the reason for the taking of any such action.

The attributes included in the list of prohibited reasons in s.351(1) are not defined in the Fair Work Act. Accordingly, unless they are given special meaning, they should be given their ordinary meaning. Where the attribute is defined within another Act in terms consistent with the ordinary meaning of the word, it can assist in its interpretation where it appears in s.351.^[6]

What are the grounds?

• Race
• Colour
• Sex (gender identity) and sexual orientation
• Age
• Physical or mental disability
• Marital status
• Family or carer’s responsibilities
• Pregnancy
• Religion
• Political opinion
• National extraction
• Social origin

References