IR changes could expose employers to more discrimination claims

05 December 2008 11:12am

The proposed national IR laws broaden employers' exposure to discrimination claims and might lead to bigger payouts in some jurisdictions, a senior workplace lawyer says.

Jacquie Seemann, partner at Thomson Playford Cutlers, says the Fair Work Bill harmonises anti-bias laws more than ever before, but with significant implications for employers.

Broader discrimination grounds

Clause 351 of the proposed laws provides that: "an employer must not take adverse action against a person who is an employee, or prospective employee, of the employer because of the person's race, colour, sex, sexual preference, age, physical or mental disability, marital status, family or carer's responsibilities, pregnancy, religion, political opinion, national extraction or social origin."

The Bill's explanatory memorandum notes that the clause is intended to "broadly cover" the existing discrimination provisions of the Workplace Relations Act, but "has been expanded to prohibit any adverse action".

Seemann says the expansion has significant implications - for one thing, the clause gives some employees the right, for the first time, to bring a discrimination claim on grounds that aren't covered by either their home state's legislation or existing federal legislation.

NSW employees, for example, don't currently have a right to claim a remedy (such as compensation) for discrimination on the ground of religion, political opinion, national extraction or social origin.

These excluded areas are covered under the HREOC Act, but in that jurisdiction there is no power to make orders, Seemann says.

On the other hand, she says, the list of discriminatory grounds in the Bill doesn't include transgender status or criminal record, so in some senses it is more limited than legislation in some states.

Choice of courts, remedies

Employees will be able not only to choose between state and federal discrimination legislation but also between discrimination legislation and the remedies available under the Fair Work Act, Seemann says.

Clause 351 provides for a civil remedy, which means that an employee or prospective employee could choose the Federal Court, Federal Magistrates' Court, or a state Supreme Court in which to bring an action against an employer. They could seek redress, for example, for a refusal to employ them, or for discrimination in the terms on which the employment is offered. And these claims can be combined with other traditional "common law" claims, such as breach of contract.

"This new jurisdiction will allow employees to approach a court of their choice for a very broad range of remedies," she says. These include damages, reinstatement and any other order necessary to stop a further contravention of the Act or redress any loss suffered as a result of a contravention.

No limit is placed on the damages that can be awarded, Seemann notes, whereas employees in NSW, for example, face a cap of $100,000 under discrimination laws.

The Bill also makes it clear that it is intended for these claims to essentially be "no costs" claims, Seemann says, making them more attractive to employees than traditional common law claims.

Fair Work Bill 2008: New Discrimination Provisions - Jacquie Seemann, Thomson Playford Cutlers

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