Three new protected attributes under the Fair Work Act’s anti-discrimination provisions

Three new protected attributes under the Fair Work Act’s anti-discrimination provisions

On 7 December 2022, three new protected attributes were added to the existing protected attributes under the Fair Work Act 2009 (Cth) (FW Act); breastfeeding, intersex status, and gender identity.

These attributes have always been protected under the Sex Discrimination Act 1984 (Cth) but the inclusion of these attributes in the FW Act means that employees can apply to the Fair Work Commission (FWC) for a remedy if they feel that they have been discriminated against or treated less favourably because of these attributes.

Breastfeeding in the workplace

This includes expressing milk, breastfeeding, and the amount of time spent breastfeeding. An example of discrimination in these circumstances may include making inappropriate jokes or comments about an employee who breastfeeds or expresses milk at work.

Intersex status

Intersex status is where a person may not be entirely male or female or is a combination of male and female. Examples of discriminating against someone based on their intersex status could include deciding not to employ or promote someone based on their intersex status or bullying that person because of their intersex status.

Gender identity

Gender identity refers to how a person chooses to identify or present themselves. For instance, a person may have been born as a male but identifies as female. Discriminating against someone based on their gender identify may include bullying or not using the person’s preferred pronouns.

What are the penalties?

If an employer is found to have discriminated against, or taken adverse action against a person based on the protected attributes under the FW Act, they could face fines of up to:

• a maximum of $16,500 per contravention for an individual
• a maximum of $82,500 per contravention for a company.

Are there any exceptions?

There could be situations where discrimination is necessary to fulfill the inherent requirements of the role. For example, a person who is vision-impaired would not be suitable to be a truck driver.

What steps should employers take?

Employers should review any policies, procedures, and training programs to ensure that they align with the changes to the FW Act. Some of the policies may already cover these attributes, however, now there could be significant financial consequences for a breach.