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Discrimination at Work

Some of the protections discussed here come from the Fair Work Act (FWA). Generally, the FWA applies to all employees except those employed by NSW State and local governments. 

Sexual harassment is unwelcome sexual behaviour that happens in your workplace.

It can be from your boss or a co-worker.

It can be from a customer or someone who works at your workplace but works for someone else.

It can be at something work-related like work trips or the office Christmas party.

You are also protected if you are an apprentice or trainee, or a volunteer, or a student gaining work experience.

Examples of sexual harassment include:

  • staring, leering, suggestive comments or jokes, or crude conversation;
  • unwanted invitations to go out or requests for sex;
  • questions about your private life or body;
  • showing, emailing or texting you sexually explicit images;
  • deliberately brushing up against you or touching you;
  • behaviour that isn’t directed at you, like your co-workers watching porn on their computers or making comments about other women in front of you;
  • behaviour that is not sexual but belittles women.

 

Some types of sexual harassment may also be crimes.

Sexual harassment is different from bullying. Bullying includes aggressive or intimidating conduct, belittling, or humiliating comments, spreading malicious rumours, teasing, practical jokes, unreasonable work expectations. An employment law service can help you with a bullying complaint.

  • Everyone has the right to feel safe and respected at work.
  • It doesn’t matter if the person says they were only joking, or your co-workers don’t seem to think it’s a big deal.
  • Workers have a right to cease unsafe work if they face a serious immediate risk, but you must tell your boss.
  • If your health is affected, you should see your doctor about getting a medical certificate because you may have a worker’s compensation claim.
  • If it feels safe and comfortable, tell the other person that you don’t like their behaviour and ask that it stop.
  • Keep a record of what happened, when and where it happened, to help you give details when you report.
  • Speak to your supervisor, your HR person, or your Work Health and Safety officer.
  • If you are in a union, speak to your union representative.
  • Your employer should investigate your report.
  • If you are unsatisfied with the response you can make a complaint.

Sex discrimination happens when you are treated differently to a man in the same situation. This is called direct sex discrimination.

Examples of direct sex discrimination include:

  • you might be earning less than a man for the same work;
  • you might be given fewer opportunities than the men even though you have the same skills;
  • your boss might give out work tasks based on their beliefs that men can do some things better than women.

A rule at work that has an unfair effect on women and is not reasonable may be indirect sex discrimination.

Examples of indirect sex discrimination include:

  • your boss might call meetings early in the morning or late in the afternoon for no real reason, making it hard for women who have children;
  • your boss might give fewer opportunities to part-time workers, who are usually women.

If you feel like you are treated differently or there are rules that have an unfair effect on you or other women in your workplace see the information about making a complaint.

  • You don’t have to tell anyone that you are pregnant.
  • They can’t ask if you are pregnant or planning to have children.
  • If you don’t get the job, it can be difficult to prove your pregnancy was an issue unless they come out and say it.
  • If you are unhappy with how the interview went and you think it might have something to do with your pregnancy, you should get legal advice.
  • You should be able to keep doing your normal duties unless there are medical or safety reasons not to.
  • Your boss can ask for a medical certificate showing that you are fit for work if they have genuine concerns.
  • Your boss can’t change your duties because they think you will or should have different priorities now that you are pregnant.
  • It is discrimination to treat you differently when it comes to promotions, pay reviews, and other opportunities at work because you are pregnant.
  • Sick leave is for when you are not able to work because of illness or injury (including pregnancy-related illness) so your boss can say no to using your sick leave to attend regular check-ups.
  • If possible, you should try to make these appointments out of work hours.
  • But your boss can’t treat you differently from other workers. For example, do they let other workers use sick leave for routine appointments such as annual medical or dental check-ups?
  • Some Awards, Enterprise Agreements or workplace policies do let workers use sick leave for pre-natal medical appointments. You should check with your HR person, or if you are in a union, your union representative. 
  • You can use your sick leave for pregnancy-related illnesses, including for attending medical appointments.
  • If you are entitled to unpaid parental leave you are entitled to unpaid special maternity leave if you have a pregnancy-related illness.
  • Your boss can ask for a supporting medical certificate.
  • Taking special maternity leave does not reduce the amount of unpaid parental leave you get.
  • Your boss should agree to reasonable requests for changes you need because of the normal effects of pregnancy.
  • It will help to have a medical certificate to support any request for changes to your work. 
  • If you can work, but some parts of your job aren’t safe because you are pregnant, your boss must provide safe work. If they can’t, you may be entitled to ‘no safe work’ leave. You will need a medical certificate.
  • Your boss cannot treat you differently because your request is based on your pregnancy. For example, do they grant similar requests to other workers for other reasons?
  • Pregnant Fair Work system employees can now request flexible work if you have worked for 12 months for your employer before making your request. Your request must be in writing and your boss must respond in writing within 21 days and can only refuse your request on reasonable business grounds.
  • If you will have worked for your current employer for at least 12 months before the baby is due, they must give you up to 12 months unpaid parental leave.
  • Casual workers who have worked for at least 12 months on a regular basis, may also be entitled to take unpaid parental leave.
  • You must give your boss written notice at least 10 weeks before starting your leave, telling them the start and end dates of the leave.
  • If you will have worked less than 12 months with your current employer, they don’t have to give you unpaid parental leave, but they can’t treat you differently. For example, have they given other workers long periods of unpaid leave for other reasons?
  • If you will have worked less than 12 months with your current employer, but you came from another job, you can still get the Federal Government’s Parental Leave Pay if you satisfy the work test, the income test, and the residency test. You can get more information on the Services Australia website.
  • Employees may also be entitled to paid parental leave under their registered agreement, employment contract, or workplace policies.
  • NSW Government employees are entitled to up to 14 weeks paid parental leave.
  • If you are returning from unpaid parental leave that you were entitled to, you have the right to return to the job you had before you went on leave. This is called your pre-parental leave position.
  • Ideally, your boss will have filled your job with a temporary replacement while you were away.
  • To help you get back into work, your boss should tell you about changes at work while you are away that might affect you. 
  • If those changes mean your job no longer exists, your boss must give you a similar position if one is available.
  • You are not protected from redundancy because you are on parental leave, but it is discrimination to choose you for redundancy over someone else because you are on parental leave.
  • You can ask for changes at work to help with your family responsibilities, but your boss can refuse on reasonable business grounds.
  • Your boss should explain what those reasonable business grounds are.
  • If you are a Fair Work system employee, your request must be in writing and your employer must respond to your request in writing, within 21 days.
  • NSW public sector employees are covered by the NSW Government flexible working policy.
  • When asking for changes, try to explain why you think the business will not be affected.
  • Be flexible yourself. If possible, offer alternatives.
  • Your boss can’t treat you differently than other workers. For example, do they make similar changes for other workers for other reasons?
  • You can ask for flexible working arrangements, including changes to start and finish times, but your boss can refuse on reasonable business grounds.
  • If you are a Fair Work system employee, your request must be in writing and your employer must respond to your request in writing, within 21 days.
  • NSW public sector employees are covered by the NSW Government flexible working policy.
  • When asking for changes, try to explain why you think the business will not be affected.
  • Be flexible yourself. If possible, offer alternatives.
  • Your boss can’t treat you differently than other workers. For example, have they said yes to similar requests from other employees for other reasons?
  • Your boss must make reasonable changes to accommodate even a temporary disability unless they can show that making those changes would cause the business unjustifiable hardship.
  • If they don’t do this, you may be able to make a disability discrimination complaint.
  • Your boss will probably ask for a medical certificate to support any request for changes to your work. 
  • Your boss can’t treat you differently than other workers. For example, do they make similar changes for other employees for other reasons?
  • It is against the law to discriminate against a woman who is breastfeeding. 
  • You can ask for a suitable place at work to breastfeed, express and store breast milk and breaks to breastfeed or express. 
  • It may be discrimination and a breach of work health and safety laws if your boss doesn’t give you time and a safe place to breastfeed or express.
  • You are entitled to take personal or carer’s leave to care for an immediate family member or someone who lives in your household.
  • Immediate family member means partner, child, parent, grandparent, grandchild or brother or sister.
  • If you work full-time, you get 10 days paid personal or carer’s leave days per year. 
  • If you work part-time, you get a percentage of leave based on how many hours you work. 
  • Casual workers do not get paid leave because they get a leave loading instead.
  • All workers, including casuals, get 2 days unpaid carer’s leave every time they have to care for a sick child or family member.
  • Your boss can give you more, but they can’t give you less.
  • Parents or carers of children that are school age or younger, or carers for persons with a disability, medical or mental condition, can request flexible working conditions.
  • Your boss can only refuse your request on reasonable business grounds.
  • If you are a Fair Work system employee, your request must be in writing and your employer must respond to your request in writing, within 21 days.
  • NSW public sector employees are covered by the NSW Government flexible working policy.
  • Carer’s responsibilities discrimination happens when a worker who has carer responsibilities for a dependent child or an immediate family member in need of care is treated differently to someone who doesn’t have these carer’s responsibilities in the same situation. This is called direct carer’s responsibility discrimination.
  • A rule at work that has an unfair effect on people who have carer’s responsibilities and is not reasonable may be indirect carer’s responsibilities discrimination.

The Fair Work Act defines family and domestic violence (FDV) as violent, threatening, or other abusive behaviour by an employee’s close relative that seeks to coerce or control the employee or causes them harm or fear.

A close relative means:

  • an employee’s spouse or former spouse, de facto partner or former de facto partner, child, parent, grandparent, grandchild, or sibling; or
  • an employee’s current or former spouse or de facto partner’s child, parent, grandparent, grandchild, or sibling; or
  • a person related to the employee according to Aboriginal or Torres Strait Islander kinship rules.
  • All workers in the Fair Work system – full-time, part-time and casual – are entitled to 10 days paid Family and  Domestic Violence (FDV) leave.
  • You can take FDV leave if you need to do something to deal with the impact of FDV and you can’t do it outside business hours, like making arrangements for your safety, attending court or getting help from the police.
  • The 10 days are available at the start of each 12 months of employment, but they don’t carry over to the next year if you don’t use them.
  • You can take your FDV leave for one period of 10 days, or separate periods of 1 or more days and you can agree with your boss to take periods of less than 1 day.
  • For small businesses, paid FDV leave starts from 1 August 2023. Until then workers in small businesses can have 5 days unpaid FDV leave.
  • From January 2023, NSW public sector workers – including casuals – can access 20 days of paid FDV leave per calendar year.
  • You can ask for flexible working arrangements if you are experiencing domestic or family abuse.
  • If you are a Fair Work system employee, your request must be in writing and your employer must respond to your request in writing, within 21 days.
  • NSW public sector employees are covered by the NSW Government flexible working policy.
  • Your boss can refuse on reasonable business grounds, but they should explain what those grounds are.
  • Your boss can’t treat you differently. For example, do they yes to other employees for other reasons?
  • All workers in the Fair Work system have the right to take paid FDV leave. Your boss must allow you to take FDV if you request it.
  • If your boss refuses your request or punishes you for making the request, you can make a general protections complaint to the Fair Work Commission.
  • You should get legal advice from us about how to make a complaint.

Trying to fix the problem with your employer directly can be quicker than complaining to an external agency about your problem.

If it feels safe and comfortable, speak to your supervisor, your HR person, or your Work Health and Safety officer.

If you are in a union, speak to your union representative.

Make requests in writing where possible and always ask for reasons for any refusal to a request.

If you cannot resolve your issue with your employer, you may be able to make a complaint to the Australian Human Rights Commission (AHRC), Anti-Discrimination NSW (ADNSW), the Fair Work Commission (FWC) or Safe Work Australia.

The rules and processes vary for different types of complaints so please see guides below.

Contact us for advice about how to make a complaint.

 

  • Sexual harassment is covered by discrimination law, but it is also a workplace hazard. 
  • If your employer isn't taking your concerns seriously, you may be able to make a discrimination complaint to the Australian Human Rights Commission (AHRC) or Anti-Discrimination NSW (ADNSW).
  • If you are a Fair Work System employee, you can make a sexual harassment complaint to the Fair Work Commission (FWC) for sexual harassment that started after 6 March 2023.
  • You have 24 months to complain to the AHRC or the FWC, and 12 months to complain to ADNSW. 
  • Keep a record of what happened, when and where it happened, to help you give details when you report.
  • Speak to your supervisor or your HR person.
  • If your problem is with your immediate boss, you may need to go to someone else.
  • If you are in a union, speak to your union representative.
  • If your employer is not taking your issue seriously, you may be able to make a discrimination complaint to the Australian Human Rights Commission (AHRC) or Anti-Discrimination NSW (ADNSW).
  • You have 24 months to complain to the AHRC and 12 months to complain to ADNSW.
  • If you are a Fair Work System employee, you could make a general protections complaint to the Fair Work Commission (FWC).
  • If you want to make a complaint to the FWC and you have been dismissed, you have 21 days from the date of the dismissal to complain. If you have not been dismissed you have 6 years to make your complaint.
  • Workers who are not covered more generally by the Fair Work Act are still protected from dismissal for discriminatory reasons (such as sex discrimination) by the unlawful termination provisions. You may be able to make an unlawful termination complaint (similar to a general protections complaint) to the FWC. You have 21 days from the date of the dismissal to lodge a complaint.
  • Make requests in writing where possible so that you have a record.
  • If your employer refuses your request, ask for written reasons for their decision.
  • If your problem is with your immediate boss, you may need to speak to someone else.
  • Speak to your supervisor or your HR person.
  • If you are in a union, speak to your union representative.
  • If you cannot resolve your issue with your employer, you may be able to make a discrimination complaint to the Australian Human Rights Commission (AHRC) or Anti-Discrimination NSW (ADNSW).
  • You have 24 months to complain to the AHRC and 12 months to complain to ADNSW.
  • If you are a Fair Work System employee, you could make a general protections complaint to the Fair Work Commission (FWC).
  • If you want to make a complaint to the FWC and you have been dismissed, you have 21 days from the date of the dismissal to complain. If you have not been dismissed you have 6 years to make your complaint.
  • If you are a Fair Work system employee and your complaint is about a request for flexible work that was made after 6 June 2023, you can make an application to the FWC to resolve your dispute.
  • Workers who are not covered more generally by the Fair Work Act are still protected from dismissal for discriminatory reasons (such as pregnancy) by the unlawful termination provisions. You may be able to make an unlawful termination complaint (similar to a general protections complaint) to the FWC. You have 21 days from the date of the dismissal to lodge a complaint.
  • Make requests in writing where possible so that you have a record.
  • If your employer refuses your request, ask for written reasons for their decision.
  • If your problem is with your immediate boss, you may need to go to someone else.
  • Speak to your supervisor or your HR person.
  • If you are in a union, speak to your union representative.
  • If you cannot resolve your issue with your employer, you may be able to make a discrimination complaint to the Australian Human Rights Commission (AHRC) or Anti-Discrimination NSW (ADNSW).
  • You have 24 months to complain to the AHRC and 12 months to complain to ADNSW.
  • If you are a Fair Work System employee, you could make a general protections complaint to the Fair Work Commission (FWC).
  • If you want to make a general protections complaint to the FWC and you have been dismissed, you have 21 days from the date of the dismissal to complain. If you have not been dismissed you have 6 years to make your complaint.
  • Workers who are not covered more generally by the Fair Work Act are still protected from dismissal for discriminatory reasons (such as pregnancy) by the unlawful termination provisions. You may be able to make an unlawful termination complaint (similar to a general protections complaint) to the FWC. You have 21 days from the date of the dismissal to lodge a complaint.
  • If you are a Fair Work System employee, requests must be made in writing and your employer must respond within 21 days. They must give reasons if they refuse your request.
  • For NSW State government and local government employees, the request procedure is set out in your Award, enterprise agreement or Departmental policies.
  • If your problem is with your immediate boss, you may need to go over their head.
  • Speak to your supervisor or your HR person.
  • If you are in a union, speak to your union representative.
  • If you cannot resolve your issue with your employer, you may be able to make a discrimination complaint to the Australian Human Rights Commission (AHRC) or Anti-Discrimination NSW (ADNSW).
  • You have 24 months to complain to the AHRC and 12 months to complain to ADNSW.
  • If you are a Fair Work System employee, you could make a general protections complaint to the Fair Work Commission (FWC).
  • If you want to make a general protections complaint to the FWC and you have been dismissed, you have 21 days from the date of the dismissal to complain. If you have not been dismissed you have 6 years to make your complaint.
  • If you are a Fair Work system employee and your complaint is about a request for flexible work that was made after 6 June 2023, you can make an application to the FWC to resolve your dispute.
  • Workers who are not covered more generally by the Fair Work Act are still protected from dismissal for discriminatory reasons (such as carer’s responsibilities) by the unlawful termination provisions. You may be able to make an unlawful termination complaint (similar to a general protections complaint) to the FWC. You have 21 days from the date of the dismissal to lodge a complaint.
  • Make requests in writing where possible so that you have a record.
  • If your employer refuses your request, ask for reasons for their decision.
  • If your problem is with your immediate boss, you may need to go over their head.
  • Speak to your supervisor or your HR person.
  • If you are in a union, speak to your union representative.
  • If you cannot resolve your issue with your employer, you may be able to make a complaint to the Fair Work Commission (FWC). If you have been dismissed, you have 21 days from the date of the dismissal to complain to the FWC.
  • If you are a Fair Work System employee, you could make a general protections complaint to the FWC.
  • If you want to make a general protections complaint to the FWC and you have been dismissed, you have 21 days from the date of the dismissal to complain. If you have not been dismissed you have 6 years to make your complaint.
  • If you are a Fair Work system employee and your complaint is about a request for flexible work that was made after 6 June 2023, you can make an application to the FWC to resolve your dispute.
  • Workers who are not covered more generally by the Fair Work Act are still protected from dismissal for discriminatory reasons by the unlawful termination provisions. You may be able to make an unlawful termination complaint (similar to a general protections complaint) to the FWC. You have 21 days from the date of the dismissal to lodge a complaint.
  • You may also be able to make a discrimination complaint to the Australian Human Rights Commission (AHRC) or Anti-Discrimination NSW (ADNSW). You have 24 months to complain to the AHRC and 12 months to complain to ADNSW.
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Women’s Legal Service NSW acknowledges and pays respect to the traditional custodians of this country, throughout Australia, and their continuing connection to land, waters and community. We pay our respects to them and their cultures, as well as to the elders past and present. 

Disclaimer

The information provided on this website is provided for general information only and should not be relied on as legal advice or take the place of advice given by a qualified solicitor. The information is accurate at the time of publication but may be out of date if laws have changed since publication. No responsibility is take for any loss suffered as a result of the information given.

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