This post is part of a series looking at the unfinished business of LGBTI equality in Australia. You can see the rest of the posts here. 

The first item of ‘unfinished business’ that I have chosen to write about is the discrimination that remains in the Commonwealth Fair Work Act 2009.

This unfairness includes two distinct issues, one relatively well-known (and which exists in other legislation, such as the Commonwealth Sex Discrimination Act 1984), the other much less so.

Starting with the sometimes-overlooked problem first: did you know that the Fair Work Act 2009 does not protect trans, gender diverse and intersex people against workplace discrimination?

While this legislation prohibits adverse treatment on the basis of sexual orientation – thereby protecting lesbians, gay men and bisexuals (at least to some extent: see the second discussion below) – it does not include equivalent protections for trans, gender diverse and intersex people.

For example, sub-section 351(1) 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 orientation, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin.’

Note that this list excludes both gender identity (which would cover trans and gender diverse people) and intersex status (the term used in the Sex Discrimination Act 1984 to protect intersex people, although the intersex community has since advocated for this to be updated to ‘sex characteristics’; see the Darlington Statement).

The same list of attributes, with the same exclusions, is found in sub-section 772(1)(f) which protects employees against unlawful termination.

In short, the Fair Work Act 2009 (Cth) does not protect trans, gender diverse and intersex Australians from mistreatment or unfair dismissal based on who they are. This is either a gross oversight, or a deliberate choice to treat transphobic and intersexphobic workplace discrimination less seriously than other forms of mistreatment.

Nor are these the only sections of the Fair Work Act to omit trans, gender diverse and intersex people:

• Section 153 provides that discriminatory terms must not be included in modern awards. The list of relevant attributes includes sexual orientation, but excludes gender identity and sex characteristics;
• Section 195 includes a similar prohibition on discriminatory terms in enterprise agreements, and once again omits trans, gender diverse and intersex people; and
• Sub-section 578(c) provides that the Fair Work Commission must perform its functions taking into account ‘the need to respect and value the diversity of the work force by helping to prevent and eliminate discrimination on the basis of race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin.’

There is literally no requirement in the Act for the Fair Work Commission to help prevent or eliminate transphobic and intersexphobic workplace discrimination.

There can be no justification for these omissions. Nor can there be any excuse for the Government, or Parliament more broadly, not to pass urgent amendments to ensure trans, gender diverse and intersex Australians are finally included in the Commonwealth Fair Work Act 2009.

Here are my letters to the Prime Minister, and the Minister for Jobs and Innovation, asking them to do exactly that:

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The Hon Malcolm Turnbull MP

Prime Minister of Australia

PO Box 6022

House of Representatives

Parliament House

Canberra ACT 2600

27 May 2018

 

Dear Prime Minister

Please include trans, gender diverse and intersex people in the Fair Work Act

On 15 November last year, in your press conference following the announcement of the 61.6% Yes vote in the same-sex marriage postal survey, you said that: ‘we are a fair nation. There is nothing more Australian than a fair go. There is nothing more Australian than equality and mutual respect.’

A little later in that same press conference you added: ‘we are a nation of a fair go and mutual respect and we treat people equally. We don’t discriminate against people because of their gender of their sexual orientation, their religion or race or the colour of their skin.’

Unfortunately, trans, gender diverse and intersex Australians are still a long way from receiving a ‘fair go’, and that includes being treated unfairly within the Commonwealth Fair Work Act 2009.

Section 351 of this legislation includes protections against adverse treatment on the basis of a wide range of attributes, including sexual orientation. However, it excludes both gender identity and sex characteristics (the latter being the term preferred by intersex advocates, as articulated in the Darlington Statement, replacing ‘intersex status’ as used in the Sex Discrimination Act 1984).

Similarly, section 772 of the Fair Work Act prohibits unfair dismissal on the same grounds as 351, once again leaving trans, gender diverse and intersex Australians without equivalent protection.

Meanwhile, sections 153 and 195 do not prohibit the use of discriminatory terms against trans, gender diverse and intersex people in modern awards and enterprise agreements, respectively.

Finally, while section 578 of the Fair Work Act mandates that, in performing its functions, the Fair Work Commission must take into account ‘the need to respect and value the diversity of the work force by helping to prevent and eliminate discrimination’, this does not cover either transphobic or intersexphobic discrimination.

I am writing to ask that you, and your Government, introduce amendments to the Fair Work Act 2009 to rectify these gross oversights as a matter of priority.

Trans, gender diverse and intersex people deserve to be protected against workplace discrimination in exactly the same way as other employees, including lesbians, gay men and bisexuals.

If you fail to do so, you will be continuing to deny a ‘fair go’ to trans, gender diverse and intersex Australians, and your words of 15 November last year will ring hollow.

Sincerely,

Alastair Lawrie

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Senator the Hon Michaelia Cash

Minister for Jobs and Innovation

PO Box 6100

Senate

Parliament House

Canberra ACT 2600

via minister.cash@jobs.gov.au

27 May 2018

 

Dear Minister Cash

Please include trans, gender diverse and intersex people in the Fair Work Act

I am writing to you about the Commonwealth Fair Work Act 2009, which you administer, and specifically its failure to adequately protect trans, gender diverse and intersex employees against workplace discrimination.

Section 351 of this legislation includes protections against adverse treatment on the basis of a wide range of attributes, including sexual orientation. However, it excludes both gender identity and sex characteristics (the latter being the term preferred by intersex advocates, as articulated in the Darlington Statement, replacing ‘intersex status’ as used in the Sex Discrimination Act 1984).

Similarly, section 772 of the Fair Work Act prohibits unfair dismissal on the same grounds as 351, once again leaving trans, gender diverse and intersex Australians without equivalent protection.

Meanwhile, sections 153 and 195 do not prohibit the use of discriminatory terms against trans, gender diverse and intersex people in modern awards and enterprise agreements, respectively.

Finally, while section 578 of the Fair Work Act mandates that, in performing its functions, the Fair Work Commission must take into account ‘the need to respect and value the diversity of the work force by helping to prevent and eliminate discrimination’, this does not cover either transphobic or intersexphobic discrimination.

I am writing to ask that you, and the Liberal-National Government, introduce amendments to the Fair Work Act 2009 to rectify these gross oversights as a matter of priority.

Trans, gender diverse and intersex people deserve to be protected against workplace discrimination in exactly the same way as other employees, including lesbians, gay men and bisexuals.

If you fail to do so, you will be failing to ensure trans, gender diverse and intersex Australians receive a ‘fair go’ in their jobs.

Sincerely,

Alastair Lawrie

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The second, much better-known, issue of unfairness in the Fair Work Act 2009 is its inclusion of extensive ‘religious exceptions’. These are loopholes that allow religious organisations to discriminate against employees on the basis of their sexual orientation (and would likely allow discrimination on the basis of gender identity were it to be included as a protected attribute in the Act in future).

The Fair Work Act entrenches these loopholes in two ways.

First, the prohibition on adverse treatment in section 351 (described above) does not apply to any action that is ‘not unlawful under any anti-discrimination law in force in the place where the action is taken’ (sub-section (2)(a)).

This means that the Fair Work Act reinforces the religious exceptions that already exist in the Commonwealth Sex Discrimination Act 1984, and its state and territory equivalents (other than the Tasmanian Anti-Discrimination Act 1998),[i] which permit anti-LGBT discrimination.

However, the Fair Work Act then includes its own ‘religious exceptions’ in sub-section 351(2)(c), allowing adverse treatment ‘if the action is taken against a staff member of an institution conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed – taken:

(i) in good faith; and

(ii) to avoid injury to the religious susceptibilities of adherents of that religion or creed.’

In effect, the Act provides two different avenues for religious organisations to justify mistreating employees simply because of their sexual orientation.

The protection against unfair dismissal in section 772 also includes its own ‘religious exception’, while even the terms of modern awards (section 153) and enterprise agreements (section 195) are allowed to be explicitly discriminatory on the basis of sexual orientation where it relates to employment by a religious institution.

There is, however, one important difference between the religious exceptions in this Act and those that are contained in the Sex Discrimination Act 1984: the Fair Work Act religious exceptions technically apply across all protected attributes.

This means that, theoretically at least, a religious organisation could claim its beliefs required it to discriminate on the basis of race, or even physical or mental disability – and that it would therefore be protected from any adverse consequences under the Act.

Of course, in practice we all know that religious exceptions are most likely to be used to justify discrimination against women (including unmarried and/or pregnant women) and LGBT people.

Unfortunately, the Ruddock Religious Freedom Review recently handed to Prime Minister Malcolm Turnbull (although not yet publicly released) is likely to recommend that these loopholes are expanded, rather than drastically reduced. That is a subject I am sure I will be writing about further in coming months.

Nevertheless, in the meantime we should continue to highlight the injustice of religious exceptions, including those found in the Fair Work Act and elsewhere, and campaign for their removal.

One such campaign, called ‘Change the Rules on Workplace Discrimination’, is currently being run by the Victorian Gay & Lesbian Rights Lobby. I encourage you to sign their petition, here.

Ultimately, we need to collectively work towards a Fair Work Act that covers all parts of the LGBTI community – and that doesn’t feature extensive ‘religious exceptions’ allowing discrimination against us.

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Update 24 October 2018:

Earlier this year, the (then) Minister for Small and Family Business, the Workplace and Deregulation, the Hon Craig Laundy MP, replied to my letter. As you can see below, it is an extremely disappointing response.

He, and the Liberal-National Government, either don’t understand that the Fair Work Act excludes trans, gender diverse and intersex Australians (leaving them at a disadvantage compared to other groups, including lesbian, gay and bisexual people). Or they simply don’t care. I think we all know which is the likelier explanation.

This issue has taken on added importance in the context of the current debate around the Ruddock Review, and removing religious exceptions that allow discrimination against LGBT students and teachers.

That is because, even if those exceptions are repealed (from both the Sex Discrimination Act and the Fair Work Act), if the protected attributes of gender identity and sex characteristics/intersex status are not also added to the Fair Work Act, there will still be a two-tiered system for LGBTI teachers.

In short, lesbian, gay and bisexual teachers will be able to complain to both the Fair Work Ombudsman and the Australian Human Rights Commission, while trans, gender diverse and intersex teachers will only be able to complain to the latter.

Unfortunately, the otherwise positive Discrimination Free Schools Bill 2018 from the Australian Greens makes this fundamental mistake. We are also still waiting to see whether the now Morrison Government will introduce any reforms in this area at all, as well as what a Shorten Labor Opposition Bill (or amendments) might look like.

But, irrespective of whose Bill it is, and whatever other amendments it contains, if it doesn’t add gender identity and sex characteristics/intersex status to the Fair Work Act, it will be incomplete.

**********

16 July 2018

Dear Alastair

Thank you for your email of 27 May 2018 to Senator the Hon Michaelia Cash, Minister for Jobs and Innovation, about protection from discrimination against trans, gender diverse and intersex employees under the Fair Work Act 2009. As the issues raised fall within my portfolio responsibilities as Minister for Small and Family Business, the Workplace and Deregulation, your email was referred to me for reply.

The Australian Government believes that discrimination in the workplace is unacceptable and all employees have the right to be free from discrimination at work.

The Sex Discrimination Act 1984 (the Sex Discrimination Act) is the principle legislation providing protection against discrimination or harassment on the basis of sex and/or gender. It also covers discrimination and harassment in the workplace. The Sex Discrimination Act explicitly covers discrimination on the basis of gender identity and intersex status.

The Human Rights Commission Act 1986 provides remedies for workers who have been discriminated against, harassed or dismissed on the basis of gender identity or intersex status, including in the workplace. The Australian Human Rights Commission (AHRC) is responsible for responding to complaints about harassment or discrimination on the basis of gender identity or intersex status.

Any person who has been discriminated against, harassed or dismissed on the basis of gender identity or sex characteristics should contact the AHRC for information and advice. The AHRC has the power to investigate and conciliate the complaints of discrimination and breaches of human rights. Information on what is required to make a complaint is available at www.humanrights.gov.au under the complaints tab on that page. There is also a National Information Service line on 1300 656 419.

Yours sincerely

Craig Laundy

(then) Minister for Small and Family Business, the Workplace and Deregulation

Update 21 June 2020:

It has been brought to my attention that there is a possibility the Fair Work Commission would interpret ‘sex’ to include gender identity and potentially intersex status, based on this information on their website.

However, this interpretation is open to legal challenge, and may be overturned in the Federal Court. I remain of the view the only way to put workplace protection for trans, gender diverse and intersex people beyond doubt would be to add gender identity and sex characteristics to the Fair Work Act.

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Footnotes:

[i] For more information on the differences in these laws, see A quick guide to Australian LGBTI anti-discrimination laws.