Adverse Effects: Can the Fair Work Act Address Workplace Discrimination for Employees with a Disability?

41(3) UNSW Law Journal 846 (2018)

25 Pages Posted: 9 Nov 2019

See all articles by Dominique Allen

Dominique Allen

Labour, Equality and Human Rights research group, Department of Business Law, Monash Business School; University of California, Berkeley - Berkeley Center on Comparative Equality & Anti-Discrimination Law

Date Written: 2018

Abstract

The enactment of the Fair Work Act 2009 (Cth) (‘FWA’) gave employees a new mechanism for addressing workplace discrimination in addition to traditional anti-discrimination law. Section 351 of the FWA prohibits employers from taking adverse action against employees on a range of grounds including disability. This article evaluates whether section 351 can effectively address disability discrimination in the workplace. It argues that section 351 offers limited protection to employees with a disability because the FWA does not define ‘disability’, and the courts have interpreted ‘discrimination’ too narrowly to encompass the complexities of workplace discrimination. However, the FWA contains stronger enforcement mechanisms than anti-discrimination law so, with some refinements, it could offer employees with a disability a much more effective avenue for addressing discrimination than traditional anti-discrimination laws.

Keywords: disability, discrimination, Australia, industrial relations, Fair Work Act

Suggested Citation

Allen, Dominique, Adverse Effects: Can the Fair Work Act Address Workplace Discrimination for Employees with a Disability? (2018). 41(3) UNSW Law Journal 846 (2018), Available at SSRN: https://ssrn.com/abstract=3477761

Dominique Allen (Contact Author)

Labour, Equality and Human Rights research group, Department of Business Law, Monash Business School ( email )

Caulfield Campus
Sir John Monash Drive
Caulfield East, Victoria 3084
Australia

University of California, Berkeley - Berkeley Center on Comparative Equality & Anti-Discrimination Law

Boalt Hall
Berkeley, CA 94720-7200
United States

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