Australian Labour and
Employment Relations Association
Combating Discrimination and
Harassment at Work
Start with the contract
in an ongoing relationship, it is not always easy to
point to the precise moment when the legal criteria
of a contract have been fulfilled. Agreements
concerning terms and conditions which might be too
uncertain or too illusory to enforce at a particular
time in the relationship may by reason of the
parties' subsequent conduct become sufficiently
specific to give rise to legal rights and duties. In a
dynamic commercial relationship new terms will be
added or will supersede older terms. It is necessary
therefore to look at the whole relationship and not
only at what was said and done when the
relationship was first formed.
Sex Discrimination Act
14 Discrimination in employment or in
superannuation
(1) It is unlawful for an employer to discriminate
against a person on the ground of the person’s sex,
marital status, pregnancy or potential pregnancy,
breastfeeding or family responsibilities:
(a) in the arrangements made for the purpose of
determining who should be offered employment;
(b) in determining who should be offered employment; or
(c) in the terms or conditions on which employment is
offered.
Adverse Action
341 Meaning of workplace right
Meaning of workplace right
(1) A person has a workplace right if the person:
(a) is entitled to the benefit of, or has a role or responsibility
under, a workplace law, workplace instrument or order made by an
industrial body; or
(b) is able to initiate, or participate in, a process or proceedings
under a workplace law or workplace instrument; or
(c) is able to make a complaint or inquiry:
(i) to a person or body having the capacity under a workplace law
to seek compliance with that law or a workplace instrument; or
(ii) if the person is an employee—in relation to his or her
employment.
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 preference, age, physical or mental
disability, marital status, family or carer's
responsibilities, pregnancy, religion,
political opinion, national extraction or
social origin.
Competition and Consumer Act 2010
31 A person must not, in relation to employment
that is to be, or may be, offered by the person
or by another person, engage in conduct that is
liable to mislead persons seeking the
employment as to:
(a) the availability, nature, terms or conditions of
the employment; or
(b) any other matter relating to the employment.
Note: A pecuniary penalty may be imposed for a
contravention of this section.
The minimum standards
(2) The minimum standards relate to the following matters:
(a)
(b)
(c)
(d)
(e)
(f)
(g)
(h)
(i)
(j)
maximum weekly hours (Division 3);
requests for flexible working arrangements (Division 4);
parental leave and related entitlements (Division 5);
annual leave (Division 6);
personal/carer’s leave and compassionate leave (Division 7);
community service leave (Division 8);
long service leave (Division 9);
public holidays (Division 10);
notice of termination and redundancy pay (Division 11);
Fair Work Information Statement (Division 12).
And just remember
the path of the law is strewn with examples
of:
– open and shut cases which, somehow, were not;
– unanswerable charges which, in the event,
were completely answered;
– inexplicable conduct which was fully explained;
– fixed and unalterable determinations that, by
discussion, suffered a change
Ian Latham, Barrister
Ian Latham is a barrister at Denman Chambers. He specialises in
industrial and employment law. He has appeared in a number of
important industrial cases including the Tristar litigation, the
first case about the Independent Contractors Act and the first
case about the sham contractor provisions. He writes for the
Butterworths Fair Work Act, NSW Industrial Relations Act,
Workers Compensation and Competition and Consumer
Legislation looseleaf services. He also writes articles on
industrial and employment law and Australian Rules football.
His CV can be found at
http://web.me.com/ianlatham/Site/Curriculum_Vitae.html