Maurice Blackburn - Workers will benefit with more streamlined anti-discrimination laws

22 November 2012

Maurice Blackburn has welcomed the Federal Government's plans to harmonise state and federal discrimination laws.

Commenting on the draft Human Rights and Anti-Discrimination Bill 2012, Terri Butler, principal in employment law said having a single piece of legislation would cut confusion for employers and people suffering discrimination.

"Discrimination at work on the basis of sex, age, race or disability is still widespread and I see its negative consequences as part of my practice," said Ms Butler. 

"By consolidating state and federal laws, and strengthening the law, people will get greater protection and employers will have a greater awareness of their responsibilities,"

"Workers are already protected from adverse action for reasons including their "sexual preference", under the Fair Work Act. The addition of the attributes of sexual orientation and gender identity, into discrimination laws, will increase the consistency between federal and state anti-discrimination laws, and will strengthen protection for workers and others discriminated against on these grounds. I congratulate the government for making good on its election commitment to add these attributes.

"The "reverse onus" (where, once the complainant has shown that they suffered unfavourable treatment, and the business then has to prove they didn't discriminate) will be included in the new federal discrimination laws. This will make discrimination consistent with the existing Fair Work Act adverse action provisions (which include the prohibition of adverse action because of personal attributes like sex, race, disability, age and sexual preference, among others).

"The reverse onus in the Fair Work Act was originally introduced into the freedom of association part of the Workplace Relations Act under the Howard government in 1996."

"It remains part of the adverse action provisions. In that time, it has not led to an avalanche of unmeritorious cases."

"Some have suggested that the changes to discrimination laws would give complainants an unfair advantage over businesses, but I don't believe that. The reverse onus will merely address an otherwise existing disadvantage. That is because discrimination claims are about the reasons why a decision maker took action. The decision maker is at an obvious advantage over the complainant, in a contest about their reasons for taking action. The reverse onus removes that advantage.

The new laws will also simplify the test for discrimination. The new test will be better for complainants and businesses as it will remove the need for complex legal argument about the application of the existing "less favourable treatment" test.

Ms Butler noted that the changes to the way costs can be awarded in discrimination claims may be a barrier to some workers' claims.

"No cost" jurisdictions are double edged swords, both for complainants and for businesses.

A complainant may find that they can win, but still be out of pocket, through a combination of traditionally low compensation payouts in these claims, and the new default position that the losing party won't have to pay their costs.

On the other hand, under the new laws an unsuccessful complainant generally won't have to pay the other party's costs, which reduces the risk of litigation.

Practice Areas: