Employment & discrimination
WE spend MORE HOURS at WORK than we do at home.
Some of us are able to be out at work while others remain in the closet, sometimes out of necessity, sometimes out of fear.
In my profession, I happen to be lucky in this regard. There are lawyers, judges, magistrates, and barristers who are also gay or lesbian, and I’ve never experienced discrimination. But whatever our situations at work, there are laws that protect us, many of them new, and it’s important to know what they are so we understand what our rights are and how we might proceed should a situation arise.
The Fair Work Act
Lesbians’ workplace rights can be found in the Fair Work Act 2009 (Cth). Section 12 of the Fair Work Act 2009 defines a “de facto partner” as “a person who, although not legally married to the employee, lives with the employee in a relationship as a couple on a genuine domestic basis”.
This means that you are guaranteed the same rights and minimum employment conditions given to married or de facto heterosexual couples. These minimum rights include parental and adoption leave, carer’s leave, and right to request flexible working arrangements.
Your children will also be recognised. The Fair Work Act 2009 recognises children that are adopted, step-children, and children conceived through ART or a surrogacy arrangement with a parentage order.
What if you feel disriminated against
You may feel discriminated against if an employer does something or behaves towards you in a particular way because of a particular attribute you have, such as your sexual orientation.
Discrimination can occur at any stage of the employment process, such as when you are applying for a job, before you start working, or during your employment. Unfortunately, some lesbians still experience homophobic behaviour at work including bullying and harassment. Sadly, this sometimes goes as far as violent and aggressive behaviour.
The internet and the rise of social media have created a new environment for homophobic behaviour known as cyber-bullying and cyber-harassment.
Making a complaint
If you feel that you have been discriminated against, there are many ways you can make a complaint. The organisations that deal with discrimination complaints are:
The Fair Work Commission;
The Australian Human Rights Commission;
The Federal Circuit Court;
The Federal Court; and
The Anti-Discrimination Board.
There is no specific order in which you should make a complaint, but I would start with your employer and if you have no satisfactory response, then proceed down the list provided above.
If you think you were terminated because of discrimination, you have 21 days from the date that you were sacked to lodge an application with the Fair Work Commission.
Summary of Main Points:
Lesbians’ workplace rights in Australia are protected by the Fair Work Act 2009.
You have many places in which to lodge a complaint if you feel you were discriminated against.
Note to readers: This information is intended as a guide to the law and should not be used as a substitute for legal advice. While every effort has been made to ensure that the information contained here is as up to date and accurate as possible, the law is complex and constantly changing (particularly relating to same-sex parenting) and readers are advised to seek legal advice in relation to their situation.