‘It’s a Discrimination Law Julia, But Not As We Know It’: Part 3-1 of the Fair Work Act

Abstract

At first glance, Part 3-1 of the Fair Work Act 2009 (Cth) seems to overlap with long-established anti-discrimination laws, offering protection against adverse, attribute-based conduct in employment. On close analysis, however, it turns out to be a new and quite different regime. Although the Fair Work Act offers a simple alternative to dated and complicated anti-discrimination laws, its provisions are at times overly-simple, raising uncertainty about how they will operate. Our analysis leads us to conclude that the approach to discrimination protection in the Fair Work Act, while an important addition to the remedies available to Australian workers, is compromised by failing to take account of lessons learned in the long history of anti-discrimination law.

Major court and tribunal decisions in Australia in 2017

“…While the first three behaviours were found in earlier iterations of federal industrial relations law, ‘discriminate’ is new and, curiously, not defined. When the FW Act came into force there was confusion about how section 351 would operate due in part to the provision’s open textured language, especially compared to anti-discrimination law (see Rice and Roles, 2010; Smith, 2010). The courts have had to determine what types of discrimination are prohibited and what the protected attributes mean.…”