At first glance, Part 3–1 of the Fair Work Act 2009 (Cth) seems to overlap with long-established anti-discrimination laws, offering protection against adverse, attribute-based conduct in employment. On close analysis, however, it turns out to be a new and quite different regime. Although the Fair Work Act offers a simple alternative to dated and complicated anti-discrimination laws, its provisions are at times overly-simple, raising uncertainty about how they will operate. Our analysis leads us to conclude that the approach to discrimination protection in the Fair Work Act, while an important addition to the remedies available to Australian workers, is compromised by failing to take account of lessons learned in the long history of anti-discrimination law.
AllenD. (2009) ‘Reducing the burden of proving discrimination in Australia’, Sydney Law Review, 31(4), pp. 579–605.
2.
FenwickC.HoweJ. (2009) ‘Union security after Work Choices' in ForsythA.StewartA. (eds) Fair Work: The New Workplace Laws and the Work Choices Legacy, Federation Press, Sydney, pp. 164–185.
3.
GazeB. (2002) ‘Context and interpretation in anti-discrimination law’, Melbourne University Law Review, 26(2), pp. 325–354.
4.
GazeB.ChapmanA. (2009) ‘An introduction to the general protections in the FairWork Act and anti-discrimination law’, Paper to Workshop, Intersections between General Protections Fair Work Act and Anti-Discrimination Law: Questions, Quirks and Quandaries, Centre for Employment and Labour Relations Law, Melbourne Law School.
5.
HunyorJ. (2003) ‘Skin-deep: Proof and inferences of racial discrimination in employment’, Sydney Law Review25(4), pp.535–554.
6.
KirbyM.The Hon (2004) ‘Industrial conciliation and arbitration in Australia: A centenary reflection’, Australian Journal of Labour Law, 17, pp. 229–244.
7.
LawsonA. (2008), Disability and Equality Law in Britain: The Role of Reasonable Adjustment, Hart Publishing, Oxford.
MelhamD.MP, (1990) Hansard 12 November 1990 p 3768, quoted in Australian Medical Council v Wilson [1996] FCA 1618, (1996) 68 FCR 46 at 53.
10.
MeronT. (1985) ‘The meaning and reach of the International Convention on the Elimination of All Forms of Racial Discrimination’American Journal of International Law79, pp. 283–318.
11.
NSW Law Reform Commission, (1999) Report 92: Review of the Anti-Discrimination Act 1977 (NSW) NSW Law Reform Commission, Sydney.
12.
OwensR.RileyJ. (2007), The Law of Work, Oxford University Press, Melbourne.
13.
QuinnD. (2004) ‘To be or not to be a member — Is that the only question? Freedom of association under the Workplace Relations Act’, Australian Journal of Labour Law, 17(1), pp. 1–34.
14.
ReesN.LindsayK.RiceS. (2008), Anti-Discrimination Law in Australia, The Federation Press, Sydney.
Senate Standing Committee on Legal and Constitutional Affairs (2008) Inquiry into the effectiveness of the Commonwealth Sex Discrimination Act 1984 in eliminating discrimination and promoting gender equality, Commonwealth of Australia, Canberra.
17.
SmithB. (2008) ‘From Wardley to Purvis: How far has Australian anti-discrimination law come in 30 years?’Australian Journal of Labour Law, 21(1), pp. 3–29.
18.
SmithB. (2009) ‘Models of anti-discrimination laws — Does Canada offer any lessons for the reform of Australia's laws?’ in Howard-WagnerD. (ed.), W(h)ither Human Rights? Proceedings of the 25th Annual Conference of the Law and Society Association of Australia and New Zealand, available: http://ses.library.usyd.edu.au/bitstream/2123/4006/1/LSAANZConference%202008-Smith-discriminationl.pdf [accessed 25 September 2010].
19.
SmithB. (2010a) ‘Fair and equal in the world of work: Two significant developments in Australian discrimination law’, Australian Journal of Labour Law, 23(3), pp. 199–219.
SmithM.StewartA. (2010) ‘A New dawn for pay equity? Developing an Equal Remuneration Principle under the Fair Work Act’, Australian Journal of Labour Law23(3), pp. 152–168.
22.
StewartA. (2009) Stewart's Guide to Employment Law, The Federation Press, Sydney, Second edition.
23.
WeeksP. (1995) ‘Union security and union recognition in Australia’ in McCallumR.RonfeldtP. (eds), Enterprise Bargaining: Trade Unions and the Law, Federation Press, Sydney, pp. 184–201.
