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Discrimination


Treating someone unfairly because they have a particular personal characteristic or belong to a certain group is unlawful in South Australia. You cannot discriminate against anyone on the grounds of:

  • age
  • association with a child (in customer service or accommodation)
  • caring responsibilities
  • chosen gender
  • disability
  • identity of spouse or domestic partner
  • marital or domestic partnership status
  • pregnancy
  • race
  • religious appearance or dress (in work or study)
  • sex or sexuality.

The Equal Opportunity Act 1984 (SA) covers discrimination in areas such as:

  • employment, including volunteers
  • accommodation
  • clubs and associations
  • customer service, goods and services
  • education or the granting of qualifications
  • sale of land.

When is it discrimination? Check this chart.

Making a complaint

The Equal Opportunity Commission provides an independent complaint handling service to help workers address issues of sexual harassment or discrimination (based on disability, race, sex, age, sexuality, pregnancy or marital status). They do not act as advocates.

Go to their making a complaint page or phone 8207 1977, country callers 1800 188 163.

The Australian Human Rights Commission and the Fair Work Ombudsman may also be able to assist.

Promoting fairness

Everyone at work can help promote fairness by:

  • being familiar with any relevant policies and procedure
  • supporting others if discrimination is observed at work
  • not harassing, bullying or discriminating others
  • reporting inappropriate behaviour
  • modelling inclusive behaviour and language
  • addressing unconscious or cognitive bias.

Tips for employers

PCBUs can create inclusive workplaces by:

  • taking all reasonable steps to prevent discrimination, sexual harassment and victimisation
  • treating workers and customers fairly in your dealings with them
  • having a policy which rules out discrimination and harassment
  • developing a procedure for dealing with complaints, and responding quickly, seriously and confidentially to any complaints
  • supporting those who have been discriminated against or harassed
  • making a worker an equal opportunity contact person
  • monitoring and maintaining a culture of equal opportunity
  • conducting awareness training
  • offering flexible work arrangements
  • building a socially and physically accessible workplace.

By taking simple steps, you can prevent discrimination and harassment in your business, and save time, money and your reputation. You can also improve staff relations and customer satisfaction. The Equal Opportunity Commission’s easy-to-use handbook for employers in South Australia provides practical information and tools, including action checklists and templates for an equal opportunity policy, complaint procedure and code of conduct.

Discriminatory, coercive or misleading conduct

The Work Health and Safety Act (the Act) details three offences which prohibit:

  • any person authorising or assisting discriminatory conduct for a prohibited reason
  • coercion or inducement to exercise a power or role or not to exercise that power or role
  • misrepresentation about a person's rights, obligations or ability to make a complaint seeking compliance with the Act.

Conduct considered discriminatory, where there is a goal of thwarting the proper operation of the Act and the independence of workers and anyone else contributing to the resolution of health and safety matters, might include actions aimed at:

  • current employment, including dismissal, termination of a service contract, or action which disadvantages a worker
  • potential employment, including failure to offer employment or treating a prospective worker less favourably than another applicant
  • commercial arrangements, including termination of or refusal to enter into a commercial arrangement
  • threatening to organise or undertake discriminatory conduct.

It is illegal for Persons Conducting a Business or Undertaking (PCBUs) to discriminate against a worker or anyone else who:

  • undertakes (or has undertaken) a role under the Act, such as a Health and Safety Representative (HSR) or member of a Health and Safety Committee (HSC)
  • exercises (or has exercised) any power under the Act, including powers exercised as an HSR or HSC member
  • performs (or has performed) any function under the Act, including functions as an HSR or HSC member
  • exercises any power, function or role in a particular way
  • does not exercise a power or function under the Act
  • assists, or has assisted, any person exercising a power under the Act
  • raises, or has raised, health and safety issues with a PCBU, inspector, WHS entry permit holder, HSR, member of an HSC, another worker or any other person exercising a power, function or duty under the Act
  • participates, or has participated, in health and safety issue resolution processes
  • takes action, or has taken action, to seek compliance with the duties of the Act.

Penalties

If you are convicted of discriminatory, coercive or misleading conduct, the maximum penalties are $100,000 for an individual and $500,000 for a body corporate. The court may also order you to pay compensation to the person discriminated against or reinstate their employment. An employment order may also be made if employment was denied for a prohibited reason.

There is no reverse onus of proof for offences and the prosecutor must prove all elements of the offence. However unless the defendant can prove otherwise the prohibited reason, if established, will be taken to be the dominant reason for the conduct.

If you are the person discriminated against, you or your representative may initiate civil proceedings before the South Australian Employment Tribunal for an order, which may include injunctions, compensation, reinstatement, employment or any other order the Court considers appropriate in the circumstances.