New anti-discrimination protections in the Fair Work Act

Effective since 7 December 2022, the discrimination provisions contained in the Fair Work Act 2009 (Cth) (Fair Work Act) have been amended to include three new grounds of protection against discrimination including “breastfeeding”, “gender identity” and “intersex status”. So, it’s now against the law to act, because of these attributes, against an employee or prospective employee.

A vast range of significant amendments were made to the Fair Work Act by the Albanese government’s Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022. Some of the amendments commenced on 7 December 2022, and some others start later in the year. One of the amendments that received virtually no attention was the addition of the three new grounds of discrimination, which amend section 351 of the Fair Work Act which already prohibits discrimination on a range of other attributes, such as race, colour, sex, sexual orientation, age, disability, religion etc.

According to the Explanatory Memorandum accompanying the amending legislation, the purpose for including these three new protections was to strengthen the existing anti-discrimination grounds in the Fair Work Act and bring the Fair Work Act into alignment with other Commonwealth anti-discrimination legislation, such as the Sex Discrimination Act 1984 (Cth).

What are the new protected attributes?

HR professionals will need to understand the legal meaning of these new attributes in order to update internal training or policies and ensure compliance:

• “breastfeeding” – includes the act of expressing milk; and includes an act of breastfeeding; and breastfeeding over a period of time.
• “gender identity” – means the gender-related identity, appearance or mannerisms or other gender-related characteristics of a person (whether by way of medical intervention or not), with or without regard to the person's designated sex at birth.
• “intersex status” – means the status of having physical, hormonal or genetic features that are neither wholly female nor wholly male; or a combination of female and male; or neither female nor male.

Practical application

Practically, adding breastfeeding, gender identity and intersex status to the list of protected attributes in the Fair Work Act means that an enforcement mechanism will now be available for employees and prospective employees who allege they have been discriminated against based on those attributes. So, aggrieved individuals will be able to file an application in the Fair Work Commission and have the benefit of a conciliation conference to resolve the matter. Existing avenues of complaint in State-based anti-discrimination tribunals are still available.

Hypothetical examples of how the amendments could potentially play out in the workplace leading to allegations of discriminatory adverse action might be the following:

• An employer dismisses an employee because she was breastfeeding her child during a work-related Zoom meeting or someone has complained that she regularly does so.
• A prospective employer makes a decision not to employ an individual following a recruitment interview because the person discloses their intersex status on pre-employment recruitment forms.
• An employer discriminates between an employee who has announced their gender identity and other employees of the employer if HR refuses to change internal employee records to recognise the employee’s preferred name or to use their preferred pronouns.

There are some defences upon which employers may rely depending on the circumstances, including where the action taken by the employer is not unlawful under any other anti-discrimination law in force (State or Federal); or where action is taken because of the “inherent requirements of the particular position concerned”.

The only other defence relates to religious organisations. This could be invoked 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, and the action is taken in good faith; and to avoid injury to the religious susceptibilities of adherents of that religion or creed.”

Take-away tips

These important amendments, which were overshadowed by other amendments to the Fair Work Act, took effect on 7 December 2022. HR professionals should ensure anti-discrimination policies are updated to include the new protected attributes. Policies should also set clear expectations for compliance. They should be available in written form and communicated to all members of the workforce. Policies should clearly explain the procedure for making a complaint, stating that discipline or dismissal are consequences for breaching the policy.

Simply having a policy covering anti-discrimination in the workplace, but not acquainting employees with the policy on a regular basis, will not be enough. Continuing education on acceptable workplace behaviours and anti-discrimination should be undertaken.

Paul O’Halloran is a partner at Dentons.

Note from the editor: This article has been prepared for informational purposes only and is not to be construed as advice (legal or otherwise).