An introduction to equal opportunity laws

Employers must comply with equal opportunity laws which apply at the federal level and in all states and territories in Australia. Each jurisdiction prohibits discrimination in every aspect of work, including recruitment, terms and conditions of employment, discipline, promotion, transfer, training and termination. Most equal opportunity legislation covers both persons engaged under a contract of service (employees) and persons engaged under a contract for services (independent contractors), although not necessarily to the same extent.

Discrimination classically involves treating someone unfavourably because of an attribute, ie, their age, race or sexuality, though that discrimination can also arise indirectly from what appears to be equal treatment. For example, a requirement which applies equally to a group of people may have a disproportionate effect on persons within that group who have an attribute — eg, a requirement to attend 8:00 AM meetings in the workplace may have a more negative effect on employees who have caring responsibilities.

Not all forms of discrimination are against the law. Discrimination will only be unlawful if it is based on a proscribed attribute set out in Federal or State equal opportunity legislation. There are also some limited exemptions to the prohibition on unlawful discrimination contained in each Act.

See An introduction to equal opportunity laws.

What are the protected attributes?

Only certain attributes are protected and there are differences and overlaps under federal, state and territory equal opportunity laws.

If there is an inconsistency between federal and state/territory equal opportunity laws, the federal laws will prevail.

See What are the protected attributes?

Dispute resolution and remedies in equal opportunity matters

Federal, state and territory equal opportunity statutes set out the relevant process to be followed when a complaint of unlawful discrimination (or harassment) is made in that jurisdiction. The complaint-handling and dispute resolution provisions of these statutes vary, but the following features are common to all jurisdictions:

• • lodgment of a complaint with an equal opportunity commission (or similar body);
• • investigation of the complaint by the equal opportunity commission (or similar body);
• • unless the complaint is declined, attempted resolution of the complaint by conciliation in the equal opportunity commission (or similar body); and
• • if conciliation is inappropriate or does not resolve the complaint, the complaint may be referred to an equal opportunity tribunal, or a court, for hearing and determination.

See What remedies and dispute resolution measures are available to resolve equal opportunity matters?

Recruitment-specific equal opportunity provisions

Federal, state and territory equal opportunity statutes contain specific provisions prohibiting discrimination in relation to advertising and the offering of employment. These provisions also extend to prohibiting discrimination in regard to workplace policies, pre-employment questions, interviews, and application forms and other forms (such as medical forms and criminal records check forms) used in recruitment and pre-employment processes.

See What legislation exists to protect against discrimination during the recruitment process?