Workplace discrimination

What counts as discrimination at work

The Fair Work Ombudsman lists these protected attributes under the Fair Work Act:

• race and colour
• sex, sexual orientation, gender identity and intersex status
• age
• physical or mental disability
• marital status
• family or carer's responsibilities
• pregnancy and breastfeeding
• religion and political opinion
• national extraction and social origin
• experiencing family and domestic violence

Discrimination can take two forms. Direct discrimination is being treated less favourably than someone without that attribute would be in similar circumstances, such as being left off a training course after telling your manager you're pregnant. Indirect discrimination happens when a rule applies to everyone but has an unfair effect on a particular group. The Australian Human Rights Commission gives the example of a policy requiring all managers to work full-time, which may disadvantage women because they're more likely to work part-time while caring for children.

It can happen at any stage. Not being hired, being offered worse terms than other staff, being passed over for promotion, having your shifts cut, being demoted or being dismissed can all be discrimination when the reason is a protected attribute.

When different treatment isn't discrimination

Being treated differently isn't automatically unlawful. The Fair Work Ombudsman explains that an employer's action isn't discrimination when it relates to the genuine requirements of the job, is allowed under anti-discrimination law, or has nothing to do with a protected attribute. A bar that won't hire a 17-year-old because state liquor laws don't allow them to serve alcohol is acting on a job requirement, not the applicant's age. Reasonable performance management, such as feedback or a performance improvement plan, is also not discrimination on its own, although it can be if the real reason behind it is your disability, age or another attribute.

Some behaviour at work is harmful without being linked to who you are. If someone is repeatedly treating you unreasonably and it isn't connected to a protected attribute, what happens when you report workplace bullying covers the Fair Work Commission's stop-bullying process, which works differently.

The main ways to make a complaint

The options below are the ones most employees will be choosing between. The time limits are the key difference, so it helps to check them before anything else.

Time limits and processes checked 15 September 2026.

A complaint to the Australian Human Rights Commission

The Commission handles complaints under the federal laws covering race, sex, disability and age discrimination. It can also look at discrimination in employment on grounds including religion, criminal record, trade union activity, political opinion and social origin, although that separate process ends in a report rather than a path to court. Making a complaint is free, it has to be in writing, and you don't need a lawyer.

The Commission isn't a court and doesn't decide whether discrimination happened. It gets both sides of the story and usually tries to resolve the complaint through conciliation, which can be a conference, a phone call or an exchange of letters. The Commission lists possible outcomes including an apology, a change to a policy, staff training, getting your job back or compensation. If the complaint isn't resolved and the Commission ends it, you have 60 days from the termination notice to apply to the Federal Court or the Federal Circuit and Family Court.

Under the Australian Human Rights Commission Act, the Commission's President may end a complaint that was lodged more than 24 months after the conduct. That's a discretion, not an automatic cut-off, but it's safer to treat 24 months as the limit. The Commission also says on its complaint page that it's currently experiencing significant delays in actioning complaints, so a complaint may take some time to get started.

A general protections application to the Fair Work Commission

The Fair Work Act protects employees, prospective employees and contractors from harmful action (called adverse action) taken for a prohibited reason, and discrimination because of a protected attribute is one of those reasons. The Fair Work Commission's role is limited to helping both sides reach an agreement. It doesn't investigate or decide who is right, and an unresolved case goes to a federal court.

Which application you make depends on whether you've lost your job.

If you've been dismissed, the general protections dismissal application must be made within 21 days of the dismissal taking effect. The Commission describes this as a strict limit and says about 80% of requests for an extension are refused. Being busy, stressed or unaware of the deadline isn't usually enough to get one. If you resigned because of something your employer did, the law may treat that as a dismissal (known as constructive dismissal), and it's worth getting legal help quickly if you think that applies.

If you're still employed, or you weren't hired, the application not involving dismissal can be made up to 6 years after the action. Both sides have to agree to take part, and you can also go straight to court instead.

Both applications have a fee, which is $92.70 for 2026-27 and changes on 1 July each year. You can ask to have it waived if paying it would cause serious financial hardship.

A complaint to a state or territory body

Every state and territory has its own anti-discrimination law and a body that handles complaints under it. These bodies generally work through conciliation too. In Victoria, for example, the Commission helps both sides try to resolve a complaint, and the Victorian Civil and Administrative Tribunal decides cases that go further. The body you'd use is usually the one for the state or territory where the conduct happened.

State and territory laws cover most of the same ground as the federal laws, but each one has its own list of protected attributes. Some protect characteristics that the four federal anti-discrimination Acts (covering race, sex, disability and age) don't, such as an irrelevant criminal record or a person's physical features. So a state or territory law can sometimes make treatment unlawful when the federal Acts wouldn't. The table sets out each body, its law, how long you generally have to complain and some of the attributes worth knowing about. The last column is a selection, not the full list.

If you're outside the 12-month window, contacting the body before you give up on a complaint is worthwhile, because most of them can accept an older complaint in some circumstances. The earlier you lodge, though, the less you depend on that discretion.

Choosing one route

For the same conduct, you generally can't use more than one of these options. The Fair Work Commission says you can't make a general protections application if you've already made an application under anti-discrimination laws about the same action. So the choice matters early, because the routes differ in time limits, fees, the outcomes available and where an unresolved case ends up.

There isn't a single right answer. A dismissal leaves you with the 21-day Fair Work deadline running, which may be the most urgent factor. If you're still in the job and hoping for a change in how you're treated, conciliation through a human rights body may suit you better. A lawyer or advice service can help you compare them for your circumstances, ideally before you lodge anything.

Your employer's positive duty

Since the Sex Discrimination Act was amended following the Respect@Work inquiry, employers have a positive duty to eliminate, as far as possible:

• sex discrimination in a work context
• sexual harassment and sex-based harassment in connection with work
• conduct that creates a workplace environment hostile on the ground of sex
• related victimisation.

The duty applies to all employers regardless of size, including sole traders and government. It has applied since 13 December 2022, and the Commission's powers to enforce it, including inquiring into compliance, giving compliance notices and accepting enforceable undertakings, began on 12 December 2023. Victoria's Equal Opportunity Act also places its own positive duty on employers there.

The duty means your employer is expected to prevent this behaviour, not only respond after a complaint. The Australian Human Rights Commission enforces it, and anyone can use its online Positive Duty Form to raise concerns about a workplace that isn't meeting it. That form isn't a complaint, though. The Commission uses the information to decide where to focus its inquiries, and it won't act on your behalf to resolve an individual dispute. If you want an outcome for yourself, you'd still need one of the routes above.

What you can do first

Whichever route you end up taking, a few steps will help:

• Check any deadline. If you've been dismissed, count 21 days from the date your employment ended, which may be your last day at work, the end of paid leave or a date in your termination notice.
• Write down what happened. Note dates, what was said or done, who was involved and anyone who saw it. Notes made at the time are easier to rely on than recollections months later.
• Keep relevant documents. Emails, messages, rosters, performance reviews, job ads and any letter about a decision can all help show what happened and when.
• Consider raising it internally. Your employer may have a complaints or grievance policy, and raising a formal grievance in writing gives them a chance to fix it. You don't have to do this before making an external complaint, and if a deadline is close, getting advice comes first.
• Get advice before you lodge. The services below can help you work out which route fits.

Where to get help

The Australian Human Rights Commission's National Information Service can tell you whether it can help with your complaint, on 1300 656 419 or infoservice@humanrights.gov.au. The Fair Work Commission's Workplace Advice Service organises free legal help for eligible employees with dismissal, general protections, bullying or sexual harassment issues, if you don't have a lawyer and aren't a union member. If you are a member, your union can often advise you. Community legal centres and Legal Aid in your state or territory may also be able to help, and your state or territory anti-discrimination body can explain its own process.

Dealing with discrimination at work can be draining while you're still turning up each day. If you'd like to talk to someone, your employee assistance program, if your workplace has one, offers confidential counselling, and Lifeline is available any time on 13 11 14.