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Employee protection in Australia

Many countries around the world have specific laws in place to protect employees from harm. These include protections for whistleblowers, rules about data privacy and protection from harassment or discrimination in the workplace. In this guide, we’ll take you through what you need to know about employee protections in Australia, so you can both safeguard your business interests and keep your employees safe.

Whistleblowing in Australia

Whistleblowers play an important role in calling out misconduct in private and public sector companies. In Australia, there are protections in place to protect people who come forward with allegations against their employer.

Who can be a whistleblower?

In Australia, it’s not only employees that can be whistleblowers. In fact, a whistleblower could also be:

  • A former employee
  • A current or former officer or associate
  • A service provider or a contractor

Legal protections for whistleblowers in Australia

In Australia, whistleblowing is protected by law, and employees have the right to report concerns with their employers without fear of reprisal. This is set out in the Fair Work (Registered Organisations) Act 2009 (RO Act); which protects people who make ‘protected disclosures’.

Protected disclosures include conduct that breaches the Registered Organisations Act, Fair Work Act 2009, Competition and Consumer Act 2010 or any other law.

Employees can disclose their concerns to either:

  • The registered organisation they belong to
  • The general manager or the staff of the Commission
  • A Fair Work Commission tribunal member
  • A Fair Work Ombudsman staff member

Protection from reprisals for whistleblowers in Australia

Whistleblowers in Australia are explicitly protected from any reprisal resulting from their disclosure, which might include:

  • Being dismissed from their job
  • Being disadvantaged in their employment
  • Discrimination between them and other employees
  • Harassment or intimidation
  • Harm or injury
  • Damaging their property or reputation

Whistleblower compensation in Australia

There are civil penalties for companies that breach whistleblower laws in Australia by retaliating against employees or threatening a reprisal. If an employer does breach the law, the Federal Court or Federal Circuit Court can order civil remedies to compensate the employee. This might include:

  • Financial compensation for any loss, damage, or injury
  • An order requiring a formal apology
  • Reinstatement if the employee has been dismissed
  • Injunctions to stop or prevent the effect of any reprisals

Threatening or harming a whistleblower is a criminal offence, and offenders can be fined or jailed for up to two years.

Whistleblower policies in Australia

From January 2020, public companies, large proprietary companies, and corporate trustees of APRA-regulated superannuation entities are required by law to have a whistleblower policy in place. These policies should encourage employees to disclose any genuine misconduct, and to allow those employees to do so safely and with confidence that they will be protected and supported. It should also outline the business’ process for handling and investigating disclosures.

Employee data privacy

In Australia, there are strict rules about employee data privacy that employers have to follow. Businesses should have an employee data privacy policy in place to help them protect their employees’ personal information. As a general rule, personally identifiable data may only be processed if it is required for the performance of the employment contract and constitutes an employee record. 

Rules about employee data privacy in Australia

As an employer, if you collect personal information on your employees, you must provide them with a statement setting out your company’s obligations under Australia’s employee data privacy laws and the individual’s rights. Personal information is anything that indicates who an employee is, what they do and what they believe. It includes things like:

  • Names
  • Addresses
  • Phone numbers
  • Email addresses
  • Photographs
  • Bank account details
  • Tax file numbers
  • Superannuation information
  • Personal ID documents
  • Academic records

When this data is sensitive in nature, there are further restrictions that employers have to abide by. Sensitive personal data includes information about an employee’s health, religion, criminal record, or trade union membership.

Exceptions to employee data privacy laws

Certain acts and practices are exempt from these laws, but there are strict criteria which must be met for an exemption to apply. For example, employee records are generally exempt, but this exemption doesn’t apply to documents from before the employment relationship started, such as pre-employment or hiring documents. It also doesn’t apply to documents relating to contractors engaged by a business.

Disclosing employee data to third parties

In some circumstances, employers are allowed to disclose personal data about their employees to third parties. For example, they can share this information with:

  • A Fair Work Inspector
  • Other government agencies
  • A permit holder (in relation to a suspected break of workplace laws)
  • The employee themselves if they request it

Employers are also permitted to provide references about current or former employees. However, it’s best practice to ask the employee for consent if they haven’t already asked you to be a referee.

Protecting employee data after a data breach

Under the Notable Data Breaches (NDB) scheme, organisations that are impacted by a data breach that could result in serious harm have to report the breach to the Office of the Australian Commissioner (OAIC) and to any affected individuals. While employee records (with the exception of tax file numbers) aren’t covered by this scheme, it’s still good practice to notify employees if a data breach occurs so that they can take action to protect their data.

Surveillance and monitoring of employees

The monitoring of individuals and their data is covered by various pieces of surveillance legislation in each state or territory. Essentially, surveillance of employees is prohibited in sensitive areas, such as toilets and changing rooms, unless the surveillance device is installed pursuant to a warrant or authorisation. Surveillance is permitted in public areas if it conforms with relevant legislation. The monitoring of an employee’s use of a work computer is governed by specific laws in some states.

Equal treatment for temporary agency workers

Temporary agency workers are workers that you hire through a labour agency. Legally, they are employees of the agency you hire them from. When you hire a temporary agency worker, you pay the labour agency for the hours they work. The labour agency is responsible for providing workers with their statutory requirements.

The right to equal treatment for temporary agency workers

In 2021, the Australian government passed the ‘Same Job, Same Pay’ bill to address disparities between the earnings and working conditions of employees doing substantially similar work. The core principle of the bill is that employees who perform the same or similar work should be paid equally, regardless of their employment status. This legislation applies to both employees and temporary agency workers.

Employers who hire temporary agency workers must ensure that there is no difference in the pay, benefits or working conditions of those workers and any direct employees who do the same or similar work. However, you can still adjust pay for factors like experience, qualifications, and performance. The legislation specifically states that agency workers have the right to this equal treatment from the beginning of employment. This is different to the rules in some other countries, where temporary workers only get access to this right after a certain period.

The NES, awards, and registered agreements

Temporary workers are entitled to the same minimum employment conditions as permanent employees under the Fair Work Act 2009. That means they are entitled to at least the minimum employment rights set out in the National Employment Standards (NES). They may also be entitled to additional rights defined by their award or registered agreement. If the recruitment agency supplying the workers has its own award or enterprise agreement in place, this might replace the provisions of the award that covers other employees in your business.

Anti-discrimination laws Australia

Like in many countries, there is legislation in Australia designed to prevent discrimination in the workplace and protect employees from harassment.

What are the five laws covering anti-discrimination in Australia?

There are five main laws covering anti-discrimination in Australia. These are:

  1. The Age Discrimination Act 2004
  2. The Disability Discrimination Act 1992
  3. The Racial Discrimination Act 1975
  4. The Sex Discrimination Act 1984
  5. The Australian Human Right Commission Act 1986

Ultimately, these anti-discrimination legislation makes it unlawful to treat an individual or group differently from another individual or group on the basis of particular attributes such as race, gender or sexuality. There are also different anti-discrimination laws in each state and territory in Australia, which differ slightly in the protected characteristics they mention and how they are defined.

Direct and indirect discrimination

Anti-discrimination laws in Australia protect employees from both direct and indirect discrimination. Direct discrimination is when a person or group of people is treated differently from other people because of a characteristic like their race, sex, or gender identity.

Indirect discrimination is when a requirement or condition appears neutral but has a disproportionate impact on a particular group. For example, if a company only advertises a new position internally, and the only people who could apply for it internally are men, this could be an example of indirect discrimination against women. Alternatively, a job that required applicants to be over six feet tall would also be discriminatory against women as they are less likely to meet this requirement, even if it doesn’t exclude them directly.

Protection against harassment for Australian employees

Both federal and state laws exist to protect employees from harassment in Australia. If an employee is the victim of harassment, they have the right to make a complaint to an administrative body that will investigate the complaint and try to reach a settlement between the two parties. If this doesn’t resolve the issue, the complainant may seek to have the complaint heard by a tribunal or court. In the state systems, the matter is typically handled by a board that specialises in dealing with equal opportunity matters (such as the Anti-Discrimination Board of NSW).

As a first step, the board will conduct an investigation into the complaint. The complainant’s written complaint is given to the respondent to allow them to prepare a response. Both parties may be asked to provide further information. If the board considers that there may have been unlawful conduct and that the matter may be best resolved by a face-to-face discussion, the next step is usually a conciliation conference. If the conciliation conference fails to resolve the matter, the complainant usually has the right to refer the complaint to a Tribunal (such as the NSW Civil and Administrative Tribunal in NSW) for a hearing and decision. 

In the federal system, complaints are made initially to the Australian Human Rights and Equal Opportunity Commission, which will attempt a conciliation between the parties. If this is unsuccessful, the complainant may have the right to make an application to the Federal Court or the Federal Circuit Court.

Pay equity laws

Discriminating against employees by paying them less than others in the same role is prohibited in Australia under federal, state and territory legislation. Broadly speaking, Australian pay equity laws state that employees must be paid the same amount if they perform work of equal or comparable value. Building a culture that promotes gender pay equity can also help businesses to attract quality talent, reduce turnover and improve their organisational performance. 

Pay equity laws in Australia

For example, the Sex Discrimination Act 1984 (Cth) is one of the primary pay equity laws at play in Australia. It makes it illegal for employees to discriminate on the basis of several protected characteristics including sex, gender identity, sexual orientation and marital or relationship status. 

This legislation covers employee compensation and benefits, but also applies to all terms and conditions of employment. Essentially, it is illegal to treat one employee less favourably than another based on a protected characteristic. 

Workplace Gender Equality Act 2012

The Workplace Gender Equality Act 2012 requires private sector employers in Australia with 100 or more employees to report annually on six Gender Equality Indicators. They have to send this report to the Workplace Gender Equality Agency (WGEA). The six indicators that these employers have to report are: 

  • The gender composition of their workforce
  • The gender composition of governing bodies
  • The difference in remuneration between men and women
  • The employee terms, conditions, and practices in place to support employees with family or caring responsibilities (e.g. flexible working arrangements)
  • Consultation with employees on issues relating to gender equality in the workplace
  • Sex-based harassment and discrimination

Under this act, employers also have to give a copy of this report to employees, members, relevant employees and shareholders. Employees and employee organisations can then comment on the report, either to the employer or to the WGEA.

Publication of private sector pay equity data

Previously, the WGEA only published a summary of its findings each year, including the overall gender pay gap in Australia. However, as of early 2024, the WGEA now publishes the gender pay gaps of individual companies on its website. This applies to all employers with at least 100 employees. Employers can now publish a statement alongside their report to provide any necessary context.

Special requirements for large employers

Australia’s gender pay equity laws also include special requirements for companies with over 500 employees. These businesses have to have policies and strategies in place for addressing the six indicators listed above.

The role of pay transparency in gender pay equity

Pay transparency plays an important role in ensuring men and women are paid the same for equal or comparable work. After all, employees may not know they are experiencing pay discrimination if they don’t have information about their colleagues’ pay. The Fair Work Act 2009 grants employees the right to discuss (or not to discuss) their pay and working conditions with other employees. They also have the right to ask other employees (including those with different employers) about these matters. Employers must not take adverse action against employees for disclosing or refusing to disclose this information.

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