“Not the right cultural fit”. Discrimination, social origin, and the Fair Work Act

“Not the right cultural fit”. Discrimination, social origin, and the Fair Work Act

Since its enactment, the overarching aim of the Fair Work Act 2009 (Cth) has been ‘to provide a balanced framework for cooperative and productive workplace relations that promotes national economic prosperity and social inclusion for all Australians’.[1] In reforming Australia’s workplace relations legislation, the Gillard / Rudd Government foresaw the need to promote and preserve employment for ‘all’ Australians. Therefore, certain conditions of employment must apply to all employees regardless of their religion, age, sex, national background or social origin.[2] It is clear that the stigma associated with people of certain social origins (such as those pejoratively termed the working-class) has unfairly impacted workplace relations for many Australians. Depending on the employer’s conduct, such stigmatisation may be considered unlawful according to section 351 of the Fair Work Act 2009 (Cth).[3]

Social origin has not been clearly defined for employment law or general protections cases. However, it commonly refers to ‘social class, socio-occupational category and caste’.[4] Whilst in some cases ‘social origin’ can be informed by factors such as national extraction or country of birth, Fair Work Australia has acknowledged that this may also include ‘language or mother tongue/s, affirmation of adulthood and dress and diet’.[5] It would likely also include where a person faces discrimination for identifying with or perhaps has been perceived to identify with, aspects of culture affiliated to low socio-economic background, cultural background, or even certain geographic locations.[6]

The General Protections provisions contained in Part 3 – 1 of the Fair Work Act 2009 (Cth) seek to protect employees in their employment from unlawful adverse action taken against them for reasons, such as social origin. What constitutes adverse action is defined in section 342 of the Fair Work Act 2009 (Cth) and includes termination of employment and not giving a prospective employee a job. Other conduct such as restricting an employee from accessing opportunities by injuring them in their employment may also be defined as adverse action.

This protection against adverse action because of discriminatory conduct is encapsulated in sections 351 and 772 of the Fair Work Act 2009 (Cth). However, it is important to note that section 351 does not aim to prohibit ‘discrimination’ from occurring. Rather, it prevents adverse action from being motivated by factors including, a person’s social origin.

For general protections cases, a reverse onus of proof operates so that the employer must prove the employee’s social origin did not motivate the adverse action or was a reason for the adverse action.[7]

If you are concerned that aspects of social origin are having an impact on your workplace, speaking to an employment lawyer is recommended.

[1] Fair Work Act 2009 (Cth) s 3.

[2] Kevin Rudd and Julia Gillard, Forward with Fairness: Labor’s plan for fairer and more productive Australian workplaces (Report, April 2007) 1.

[3] General Protections Benchbook Source URL (modified on 15 June 2018): https://www.fwc.gov.au/general-protections-benchbook/other-protections/discrimination/social-origin.

[4] Q&As on business, discrimination and equality’ International Labour Organization, 01 February 2012; see also Committee of Experts on the Application of Conventions and Recommendations, Equality in

Employment and Occupation: Report III (Part 4B): General Survey of the Reports on the Discrimination

(Employment and Occupation) Convention (No 111) and Recommendation (No 111), International

Labour Conference, 75th sess, Agenda Item 3 (1988) 53 [54] (‘General Survey 1988’).

[5] General Protections Benchbook Source URL (modified on 15 June 2018): https://www.fwc.gov.au/general-protections-benchbook/other-protections/discrimination/social-origin.

[6] Capuano, Angelo, “Giving Meaning to ‘Social Origin’ in International Labour Organization (‘ILO’) Conventions, the Fair Work Act 2009 (Cth) and the Australian Human Rights Commission Act 1986 (Cth): ‘Class’ Discrimination and its Relevance to the Australian Context” [2016] UNSWLawJI 3; (2016) 39(1) UNSW Law Journal 84, 85.

[7] Fair Work Act 2009 (Cth) s 361.

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