Information Sheet -
Complaints about Discrimination in employment and occupation under the Human Rights and Equal Opportunity Commission Act
Have you ...
- been refused a job because of your criminal record?
- been dismissed from employment because of your sexual preference, real or assumed?
- been denied the same training opportunities or work conditions as other employees because of your religious faith?
- been denied promotion because of your trade union activities?
If the answer is yes, the Human Rights and Equal Opportunity Commission Act 1986 may be able to help you.
What does the Act do?
The Act provides protection for people who have suffered discrimination in employment and occupation. It covers private and public sector employment.
What is discrimination in employment and occupation?
Under the Act a person suffers discrimination in employment and occupation if she or he has been:
- refused a job
- dismissed from employment
- denied training opportunities
- denied promotion
- subjected to less favourable working conditions or terms of employment
because of one or more of the following grounds
- religion
- political opinion
- sexual preference - heterosexual, homosexual
or bi-sexual
- social origin
- trade union activity
- criminal record.
It is also against the law to discriminate in employment and occupation on the following grounds, although remedies may exist under other federal laws:
- race, nationality, national extraction or colour - Racial Discrimination Act 1975
- sex, pregnancy, marital status or family responsibilities - Sex Discrimination Act 1984
- impairment or disability - actual or imputed, medical record - Disability Discrimination Act 1992
Are all types of discrimination covered by this Act?
No. The Act is very specific.
No matter how unfair the discrimination may seem you must have suffered
discrimination because of one or more of the grounds listed above to make a
complaint to HREOC.
We cannot deal
with your complaint if, for example, you felt you were being treated unfairly
because of a personality conflict between you and another person within the
workplace.
What about job requirements?
Most jobs require
you to have certain skills, qualifications or experience so that you can
undertake the work competently or safely. It is not discrimination if you do not
get a job or a promotion because you do not have the necessary skills,
qualifications or experience required for the job.
Employers should choose the best
person for the job. They should make this decision based on a person’s
ability to perform the essential or ‘inherent’ requirements of the
job. An employer can only refuse to employ a person on the basis of criminal
record if it is clear that because of the criminal record the person will be
unable to perform the essential requirements of the
job.
What can I do if someone discriminates against me?
You may want to deal with the
discrimination yourself by raising it directly with the people concerned. If
this does not resolve the situation, you or someone else on your behalf, - such
as a solicitor or trade union – can make a complaint to the Human Rights
and Equal Opportunity Commission.
It
does not cost anything to make a complaint to HREOC.
Your complaint needs to be put in
writing. If you are not able to put your complaint in writing, we can help you
with this. HREOC also has a complaint form to help you make a complaint, or you
can lodge a complaint by email or online through our website
The complaint should say what
happened, when and where it happened and who was
involved.
What will happen to my complaint?
- Investigation
When
your complaint is received by HREOC we will look through it to make sure it is
covered by the Act. If we can not deal with your complaint we will write to you
and explain why.
If we investigate the
complaint an Investigation/Conciliation Officer will get more information about
what happened and find out what you and the respondent agree and disagree on. We
may ask fr copies of relevant documents and to interview witnesses. If the
complaint is not supported by enough information it may be declined.
If there is enough information to
suggest that you have been discriminated against we will assist you and the
employer to to try and resolve the complaint through an informal process called
conciliation.
- Conciliation
Conciliation is a process that allows the parties to a complaint to talk through the situation with the help of someone independent and settle the matter on their own terms. The Investigation/Conciliation Officer ensures that the process is fair to everyone and will help the parties to try and reach an agreement. The Officer may organise a conciliation conference, a teleconference or try and resolve the matter through an exchange of letters. The conciliation conference is not a public hearing, court of law or tribunal. Parties do not have to prove or disprove the complaint.
- Report
If
conciliation is unsuccessful or not appropriate and HREOC finds that the act or
practice complained of is discriminatory the HREOC President may report the
matter, along with recommendations for action, to the federal Attorney-General.
The report must be tabled in
Parliament.
It is important to note
that discrimination in employment and occupation under the Act is not unlawful.
Rather it is viewed as ‘unfair conduct’. HREOC can not order an
employer to treat you fairly or pay compensation. However, we can provide a
written report to Parliament about any employer found to have discriminated
against you.
What other options do I have?
You can try and talk to the
person or organisation causing the problem. You could ask your supervisor or
union to help. Your local community legal centre may also be able to
assist.
You may also be able to
resolve your complaint under federal industrial relations legislation or State
and Territory anti-discrimination laws.
Where can I find out more?
HREOC's contact details:
Post:
Human Rights
and Equal Opportunity Commission
GPO
Box 5218
Sydney NSW 2001
Telephone:
Complaints Info
line: 1300 656 419 (local call)
TTY: 1800 620 241 (toll free)
Fax: (02) 9284 9611
Online:
E-mail: complaintsinfo@humanrights.gov.au
Web site: www.humanrights.gov.au
If you are deaf or hearing impaired, the Commission can arrange for an Auslan interpreter if this is needed. You can also communicate with us by TTY by calling 1800 620 241.
Disclaimer: The information on this fact sheet is intended only as a guide. It is not a substitute for legal advice.
