Discrimination is treating, or proposing to treat, someone unfavourably because of a personal characteristic protected by the law. This includes bullying someone because of a protected characteristic.
However, issues related to workplace, workers' or employee rights may arise in a number of situations, and these may not be based on personal characteristics such as race or age.
To accommodate this type of discrimination, it is against the law for employers to treat their employees or contractors unfairly because they make reasonable requests and/or voice concerns about their employment entitlements or workers' rights. This is known as discrimination on the basis of employment activity.
The Equal Opportunity Act 2010 applies to employers of all sizes and covers all types of workers, including full-time, part-time and casual employees, agents and contract workers, trainees and apprentices.
Employment entitlements relate to an employee's rights and entitlements under their contract, agreement, relevant award or law, such as rates of pay and annual leave.
Examples of discrimination based on employment activity
Joey works at a take away food shop that has three employees. He asks the owner if he should be receiving penalty rates for time worked on Saturdays. Soon after this, Joey’s Saturday hours are reduced.
Leanne works for a car detailing business and asks the manager about her maternity leave entitlement. The manager responds by dismissing her, saying that her position is no longer required. In this case the business owner is liable for the manager’s behaviour as the employer.
What is unfavourable treatment?
An employer cannot treat you unfavourably or penalise you if you make a reasonable request about your employment entitlements. Employers cannot do things like:
● cutting your hours or regular overtime
● denying your annual leave
● transferring you to undesirable duties
● not granting you a promotion
● not providing you with access to services and training in the workplace
● terminating your employment.
For example, Jill has been working as a hairdresser for six months and has not received a payslip. She raises the matter with her employer and is told to stop asking questions. A few days later, she is instructed to not attend to customers and is given cleaning duties instead. She believes she has been treated unfavourably because she raised a concern about her entitlements, so she seeks advice from the Commission.
What are reasonable requests and concerns?
Making a reasonable request about your employment entitlements includes asking things like:
● What is my rate of pay? How much leave have I accrued?
● Can I vary my hours to pick up my child from school?
● Do I have an entitlement to maternity leave?
● Am I meant to be paid overtime?
● I’ve heard the company is going under. Will I get my redundancy payout?
When making a reasonable request or communicating your concerns:
● be clear about the request and ensure it is reasonable
● check your contract, employment agreement or payslip for the information in case it is already available
● consider putting your request in writing
● make the request to your employer, manager or designated human resources or payroll officer.
What is an unreasonable request?
Unreasonable requests may include things like:
● requests that are made at an impractical or inappropriate time
● requests that have an unrealistic or excessive demand
● requests that are made in a violent or threatening manner.
For example, Cliff works as machinist for a medium-sized sheet metal fabrication business. Cliff is concerned about the way his overtime has been allocated. He calls his employer at home on Sunday afternoon and asks him for a report of all the overtime allocation and how much other employees have been paid in the last two years. This request may be unreasonable because it was made at an inappropriate time – outside work hours – and asks for private information about other employees.
Are there any exceptions?
The Equal Opportunity Act 2010 includes some exceptions, which mean that discrimination will not be against the law in particular circumstances.
Positive steps can also be taken to help disadvantaged groups using special measures, which is not discrimination under the law.
If an exception or special measure does not apply, in some circumstances an exemption from the Act may be sought from the Victorian Civil and Administrative Tribunal (VCAT).
Make a complaint to the Commission
If you think you have been discriminated against, sexually harassed, or vilified, contact us and talk about your concerns. Our dispute resolution service is free and confidential. We can send you information about the complaint process and if we can’t help you we will try to refer you to someone who can.
To make a complaint:
- contact us by phone, in person or email. We also have a free interpreter service
- submit your complaint online or download our complaint form (DOC, 230KB)
- chat to us online
Find out more about making a complaint.