Different laws protect employers and workers from discrimination. If we cannot deal with your case, other laws and organisations may be able to help.
On this page:
What is discrimination?
An employer must not behave in a way that harms a person because they have a certain feature or attribute. A person’s ‘features and attributes’ are their:
- sexual orientation
- gender identity
- intersex status
- physical or mental disability
- marital status
- family or carer responsibilities
- political opinion
- national extraction (such as their heritage, their citizenship, or where they or their parents were born)
- social origin (such as their social class or group, language and customs).
Actions that are not discrimination
The law says that some actions may not be discrimination.
This includes where the action is:
- allowed under state or territory anti-discrimination laws
- based on the inherent requirements of the position
- taken to avoid injuring religious beliefs in some specific circumstances
This is covered in section 351 of the Fair Work Act 2009. There is more information on the Fair Work Ombudsman's website. See Workplace discrimination.
When adverse action is taken because of discrimination
Employees and potential employees are protected from discrimination at work. Employers who take harmful ('adverse') action because of discrimination may break general protections laws.
An employer may break general protections laws if they:
- dismiss an employee because of their features or attributes
- don't hire someone because of their features or attributes
- treat a person differently to others because of their features or attributes
- offer an employee worse terms than other employees because of their features or attributes
- don't give a worker their legal entitlements because of their features or attributes
- change an employee’s job in a way that has a negative effect because of their features or attributes
- take or threaten to take adverse action to force an employee to do something because of their features or attributes.
The word ‘because’ is important in a dispute or case about general protections.
You may be able to ask us to resolve a dispute if:
- you believe your employer or potential future employer has taken an adverse action AND
- the reason is discrimination.
We explain this in Understand general protections. See What is adverse action? to learn about harmful actions.
Find out how to:
- Apply for general protections – no dismissal (Form F8C)
- Apply for general protections – dismissal (Form F8)
See section 351 of the Fair Work Act 2009.
We only have the power to deal with issues under the Fair Work Act.
Other federal, state or territory laws may cover your issue. You may also be able to complain to the Australian Human Rights Commission.
- Age Discrimination Act 2004 (Cth)
- Disability Discrimination Act 1992 (Cth)
- Racial Discrimination Act 1975 (Cth)
- Sex Discrimination Act 1984 (Cth)
- Australian Human Rights Commission Act 1986 (Cth)
Commonwealth laws cover the whole of Australia. Other laws cover individual states and territories. These laws generally cover the same types and areas of discrimination. In some situations:
- There are gaps in the protection they give people.
- The Commonwealth law OR the state or territory law applies, not both.
Complaints to the Australian Human Rights Commission
The Australian Human Rights Commission (AHRC) has the power to investigate and conciliate complaints in employment about:
- Unlawful discrimination based on sex, sexual orientation, gender identity, intersex status, pregnancy, family responsibilities, breastfeeding, race, disability and age.
- Sexual harassment, sex-based harassment, disability harassment and racial hatred.
- Discrimination based on irrelevant criminal record, trade union activity, political opinion and social origin.
The AHRC is an independent body. You can complain to the AHRC wherever you live in Australia. It is free to make a complaint.
Help from anti-discrimination agencies
Each state and territory has an agency that deals with discrimination. Find out if they can help with your case under their laws.
- ACT: ACT Human Rights Commission
- NSW: Anti-Discrimination New South Wales
- NT: Northern Territory Anti-Discrimination Commission
- Qld: Human Rights Commission Queensland
- Tas: Equal Opportunity Tasmania
- SA: Equal Opportunity Commission South Australia
- Vic: Victorian Equal Opportunity and Human Rights Commission
- WA: Equal Opportunity Commission Western Australia