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Australian Labour and Employment Relations Association Combating Discrimination and Harassment at Work.

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Presentation on theme: "Australian Labour and Employment Relations Association Combating Discrimination and Harassment at Work."— Presentation transcript:

1 Australian Labour and Employment Relations Association Combating Discrimination and Harassment at Work

2 Start with the contract in an ongoing relationship, it is not always easy to point to the precise moment when the legal criteria of a contract have been fulfilled. Agreements concerning terms and conditions which might be too uncertain or too illusory to enforce at a particular time in the relationship may by reason of the parties' subsequent conduct become sufficiently specific to give rise to legal rights and duties. In a dynamic commercial relationship new terms will be added or will supersede older terms. It is necessary therefore to look at the whole relationship and not only at what was said and done when the relationship was first formed.

3 Sex Discrimination Act 14 Discrimination in employment or in superannuation (1) It is unlawful for an employer to discriminate against a person on the ground of the person’s sex, marital status, pregnancy or potential pregnancy, breastfeeding or family responsibilities: (a)in the arrangements made for the purpose of determining who should be offered employment; (b)in determining who should be offered employment; or (c)in the terms or conditions on which employment is offered.

4 Adverse Action 341 Meaning of workplace right Meaning of workplace right (1)A person has a workplace right if the person: (a)is entitled to the benefit of, or has a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body; or (b)is able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument; or (c)is able to make a complaint or inquiry: (i)to a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrument; or (ii)if the person is an employee—in relation to his or her employment.

5 Section 351 (1) 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.

6 Competition and Consumer Act A person must not, in relation to employment that is to be, or may be, offered by the person or by another person, engage in conduct that is liable to mislead persons seeking the employment as to: (a) the availability, nature, terms or conditions of the employment; or (b) any other matter relating to the employment. Note: A pecuniary penalty may be imposed for a contravention of this section.

7 The minimum standards (2)The minimum standards relate to the following matters: (a)maximum weekly hours (Division 3); (b)requests for flexible working arrangements (Division 4); (c)parental leave and related entitlements (Division 5); (d)annual leave (Division 6); (e)personal/carer’s leave and compassionate leave (Division 7); (f)community service leave (Division 8); (g)long service leave (Division 9); (h)public holidays (Division 10); (i)notice of termination and redundancy pay (Division 11); (j)Fair Work Information Statement (Division 12).

8 And just remember the path of the law is strewn with examples of: – open and shut cases which, somehow, were not; – unanswerable charges which, in the event, were completely answered; – inexplicable conduct which was fully explained; – fixed and unalterable determinations that, by discussion, suffered a change

9 Ian Latham, Barrister Ian Latham is a barrister at Denman Chambers. He specialises in industrial and employment law. He has appeared in a number of important industrial cases including the Tristar litigation, the first case about the Independent Contractors Act and the first case about the sham contractor provisions. He writes for the Butterworths Fair Work Act, NSW Industrial Relations Act, Workers Compensation and Competition and Consumer Legislation looseleaf services. He also writes articles on industrial and employment law and Australian Rules football. His CV can be found at


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