Discrimination Law on Residential Construction Sites

What it is

Workplace discrimination is unlawful conduct that disadvantages a worker or job applicant because of a personal attribute the law protects. In Australia the protections sit in four federal Acts, in state and territory anti discrimination laws and in the general protections part of the Fair Work Act 2009. A residential builder is subject to all three layers at once.

For a small builder this often feels distant from the day to day work of pricing a job and getting a slab down. It is not. The Australian Human Rights Commission receives complaints across all four Acts and the Fair Work Ombudsman receives complaints under the Fair Work Act. Both bodies have the power to investigate and refer matters that are not resolved. A discrimination claim against a residential builder normally lands as a Fair Work Commission general protections application, an AHRC complaint or a state tribunal claim.

The four federal Acts

The Commonwealth discrimination framework is built on four statutes:

• Racial Discrimination Act 1975
• Sex Discrimination Act 1984
• Disability Discrimination Act 1992
• Age Discrimination Act 2004

Each Act makes it unlawful to discriminate against a person on the relevant ground in stated areas of public life, including work. Each defines direct and indirect discrimination. Direct discrimination is treating a person less favourably because of the protected attribute. Indirect discrimination is imposing a condition or requirement that disadvantages a group with the protected attribute and that is not reasonable in the circumstances.

The Sex Discrimination Act covers sex, sexual orientation, gender identity, intersex status, marital or relationship status, pregnancy, breastfeeding and family responsibilities. It also covers sexual harassment and, from December 2022, a positive duty on employers to take reasonable and proportionate measures to eliminate sex discrimination, sexual harassment and victimisation as far as possible.

Reasonable adjustments

The Disability Discrimination Act 1992 requires an employer to make reasonable adjustments for a worker or job applicant with a disability. An adjustment is reasonable unless it would impose an unjustifiable hardship on the employer. Cost, business size, the nature of the work and the benefit to the worker all feed into the unjustifiable hardship test.

On a residential site reasonable adjustments are usually practical. Examples include modified duties for an apprentice with a back injury returning from workers compensation, flexible start times for a foreman managing a chronic condition, written instructions for a worker with a learning disability or assistive equipment funded through JobAccess. The duty is on the employer to consult with the worker about what adjustment would actually help. A blanket refusal to consider adjustments is itself unlawful.

State and territory laws

Every state and territory has its own anti discrimination Act. The state Acts often cover additional attributes, including industrial activity, irrelevant criminal record, political belief, physical features and homelessness in some jurisdictions. State and territory equal opportunity bodies are usually the first port of call for a worker who wants to lodge a complaint locally.

A residential builder cannot pick one regime. Where conduct breaches both state and federal law the worker chooses which forum to use. The builder has to comply with both.

Fair Work Act overlay

The Fair Work Act 2009 contains its own anti discrimination protections. Section 351 makes it unlawful for an employer to take adverse action against an employee or prospective employee because of race, colour, sex, sexual orientation, breastfeeding, gender identity, intersex status, age, physical or mental disability, marital status, family or carer's responsibilities, pregnancy, religion, political opinion, national extraction or social origin.

Adverse action includes dismissing the worker, refusing to employ a candidate, altering position to disadvantage or discriminating between employees. The provision sits in Part 3-1 of the Act, the general protections. The reverse onus of proof applies. Where a worker shows adverse action and the protected attribute, the employer has to prove the action was not taken for that reason.

For a residential builder the most common scenario is a complaint after a worker is not offered the next job. Documenting the operational reason for the decision before it is made is the only reliable defence.

Sexual harassment

Sexual harassment in connection with work is also a workplace right protection under the Fair Work Act since the 2023 Respect at Work amendments. A worker can apply to the Fair Work Commission for stop sexual harassment orders or compensation. The Fair Work Commission and the Australian Human Rights Commission both have jurisdiction and a worker can choose either path.

Enforcement

Three regulators deal with discrimination in the residential construction context.

• The Australian Human Rights Commission investigates complaints under the four federal Acts and tries to conciliate. Unresolved matters can be taken to the Federal Court or Federal Circuit and Family Court.
• The Fair Work Ombudsman investigates breaches of the Fair Work Act general protections and can bring proceedings in the federal courts. Penalties for body corporates are significant.
• The Fair Work Commission deals with general protections dismissal disputes and stop sexual harassment orders.

State equal opportunity bodies sit alongside these federal regulators.

What good practice looks like

A residential builder does not need a 30 page policy. The practical controls are:

• A short written equal opportunity statement issued with every employment contract
• A short policy banning sexual harassment that names the people in the business a worker can complain to
• Training for site supervisors on what reasonable adjustment requests look like and who in the business decides
• A consistent recruitment process where candidate decisions are recorded against the criteria for the role
• A clear separation between operational decisions and any complaint a worker has made

The standard from the regulator is not perfection. It is whether the employer took reasonable steps. A builder who has the policy, runs the training and applies it consistently has the foundation to defend a claim and, more importantly, to prevent one.