Workchoices Rights Q & A
(information provided by Inner City Legal Centre)
Inner City Legal Centre has been providing free legal advice to residents of Inner City Sydney on a range of issues including employment rights since 1980. They also operate a state-wide specialist gay and lesbian legal service.
DISCLAIMER – This information relates to the law in New South Wales,
Australia. Please note that this column is information of a general nature
only and does not constitute legal advice.
- Is it still illegal for my employer to discriminate against me because of my sexuality under the Workchoices laws?
- What can I do if my employer treats me unfairly at work?
- How do I know whether the Workchoices changes apply to where I work?
- How do I know what awards and conditions I am entitled to in my workplace?
- Do the Workchoices laws impact on my relationship with my union?
- Do I have to sign an Australian Workplace Agreement?
Is it still illegal for my employer to discriminate against me because of my sexuality under the Workchoices laws?
Under the Workchoices law it is illegal to sack someone because of their “sexual preference”. If a person covered by the Workchoices laws is sacked because they are gay or lesbian they can make a claim of unlawful termination to the Australian Industrial Relations Commission and seek reinstatement or compensation. However, it can be difficult to prove that a person has been sacked because of their sexuality The Workchoices law has made it more difficult for people to make a claim of unfair dismissal if they have been treated unfairly by their employer, whatever the reason for the reason for the unfair treatment.
The NSW Anti Discrimination Act makes it illegal to treat an employee
less favourably than other employees on the ground of their homosexuality.
Complaints about discrimination in employment can be made to the NSW Anti
Discrimination Board.
What can I do if my employer treats me unfairly at work?
If you are a member of a union, speak to your union. If you are not a union member you could join a union.
You could make a complaint using the grievance procedure in your workplace.
If you believe that your unfair treatment at work is because of your
homosexuality,(or your race, sex, disability, age or transgender status)
and there is some evidence of this such as comments made by colleagues
or managers, you could make a complaint to the NSW Anti Discrimination
Board.
How do I know whether the Workchoices changes apply to where I work?
The Workchoices law applies to most people who work for companies. The employers name would have “Ltd” or “Pty Ltd” at the end of the name. The exceptions are potentially a few companies that are not for profit organizations or charities.
The Workchoices law does not apply to people who work for an individual
(known as “sole traders” ) or a registered business that is
not a company, or a partnership or NSW state government employees.
How do I know what awards and conditions I am entitled to in my workplace?
Since the Workchoices law came into effect this is now a complicated
question to answer. There is a transitional period of three years for
employees who were covered by NSW awards before Workchoices but who are
now covered by Workchoices and the basic standard conditions in that law.
You could talk to your union, or contact the NSW Office of Industrial
Relations or the Federal Office of Workplace Services.
Do the Workchoices laws impact on my relationship with my union?
You still have the right to be a union member, and it is illegal to sack a person because they are (or are not) a member of a trade union, or because of their trade union activities
However, the Workchoices law has restricted the rights of unions to enter
workplaces and has also restricted the right to take industrial action
in some circumstances.
Do I have to sign an Australian Workplace Agreement?
The Workchoices law makes it illegal to sack someone because they have refused to negotiate about or sign an Australian Workplace Agreement.
However, there is no protection for new employees who are asked to sign
an Australian Workplace Agreement when they are offered a position.