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This article explains the basics of a variety of types of discrimination and the legislation prohibiting it. It is useful reading for everyone.
Net Lawman also host a comprehensive article on ‘Sexual discrimination and sexual harassment’.
The Human Rights and Equal Opportunity Commission administers federal laws governing human rights breaches and discrimination. The Commission's responsibilities fall within four main areas:
- Discrimination and human rights complaints;
- Human rights compliance;
- Public awareness and education;
- Policy and legislative development.
There are five different laws under which HREOC investigate and resolve such matters. These are:
- Age Discrimination Act 2004;
- Disability Discrimination Act 1992;
- Human Rights and Equal Opportunity Commission Act 1986;
- Race Discrimination Act 1975;
- Sex Discrimination Act 1984.
These laws aim to protect people from discrimination in public life and from breaches of their human rights by federal departments and agencies.
We cover each in turn.
Age Discrimination Act 2004
The Age Discrimination Act 2004 helps to ensure that people are not treated less favourably on the ground of age within:
- Provision of goods and services;
- Administration of Commonwealth laws and programs.
Age discrimination is not unlawful in employment if a person is unable to carry out the inherent requirements of the particular employment because of his or her age.
Furthermore, it is not unlawful discrimination if an employee is taking particular action in direct compliance with an Award or Industrial agreement or youth wages.
Interestingly, the Act provides for positive discrimination. Positive discrimination is that which provides a genuine benefit to persons of a particular age who experience a disadvantage because of their age.
The Act also provides for a number of other exemptions including the areas of:
- Migration, Taxation and Social Security laws;
- State laws and other Commonwealth laws;
- Some health programmes.
Broadly, there are two types of discrimination. Direct age discrimination happens when a person is treated less favourably because of their age than a person of another age group would be treated in the same or similar circumstances. For example, if a person who is the best person for the job is not employed simply because of their age.
Discrimination also happens when there is a requirement or condition or practice that is the same for everyone but disadvantages a person because of their age. If the requirement is unreasonable, it could be indirect age discrimination.
However, it is not unlawful to discriminate against a person because of their age where a person can not perform the 'inherent requirements' of a job.
Age discrimination at work
The ADA covers recruitment, including terms and conditions of a job, training, promotion and being dismissed. Voluntary work is not covered under the law.
Disability Discrimination Act 1992
The Disability Discrimination Act 1992 aims to:
Eliminate disability discrimination
- Promote community acceptance of people with disabilities as equals; and;
- Ensure that people with disabilities have the same rights to equality before the law as other people in the community.
Human Rights and Equal Opportunity Commission Act 1986
The Human Rights and Equal Opportunity Commission Act 1986 established the Commission. The Act provides for the Commission's administration and gives it responsibility in relation to seven international instruments ratified by Australia. These instruments are:
- International Covenant on Civil and Political Rights;
- International Labour Organisation Discrimination (Employment) Convention ILO 111;
- Convention on the Rights of the Child;
- Declaration of the Rights of the Child;
- Declaration on the Rights of Disabled Persons;
- Declaration on the Rights of Mentally Retarded Persons, and;
- Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief.
Additionally, the Aboriginal and Torres Strait Islander Social Justice Commissioner has specific functions under the HREOC Act and under the Native Title Act 1993.
These functions relate to the monitoring of the enjoyment or otherwise by Indigenous people of their rights under the law. The Sex Discrimination Commissioner also has responsibilities in relation to federal awards and equal pay under the Workplace Relations Act 1996.
Racial Discrimination Act 1975
The Racial Discrimination Act 1975 gives effect to Australia's obligations under the International Convention on the Elimination of All Forms of Racial Discrimination. Its aims to:
- Promote equality before the law for all persons, regardless of their race, colour or national or ethnic origin, and;
- Make discrimination against people on the basis of their race, colour, descent or national or ethnic origin unlawful.
Sex Discrimination Act 1984
The Sex Discrimination Act 1984 aims to:
- Promote equality between men and women;
- Eliminate discrimination on the basis of sex, marital status or pregnancy and, with respect to dismissals, family responsibilities, and;
- Eliminate sexual harassment at work, in educational institutions, in the provision of goods and services, in the provision of accommodation and the delivery of Commonwealth programs.