FAIR WORK ACT 2009 - SECT 195 Meaning of discriminatory term
FAIR WORK ACT 2009 - SECT 195
Meaning of discriminatory term(1) A term of an enterprise agreement is a discriminatory term to the extent that it discriminates against an employee covered by the agreement because of, or for reasons including, the employee's race, colour, sex, sexual orientation, breastfeeding, gender identity, intersex status, age, physical or mental disability, marital status, family or carer's responsibilities, subjection to family and domestic violence, pregnancy, religion, political opinion, national extraction or social origin.
Certain terms are not discriminatory terms
(2) A term of an enterprise agreement does not discriminate against an employee:
(a) if the reason for the discrimination is the inherent requirements of the particular position concerned; or
(b) merely because it discriminates, in relation to employment of the employee as a member of the staff of an institution that is conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed:
(ii) to avoid injury to the religious susceptibilities of adherents of that religion or creed; or
(c) if the term is a special measure to achieve equality--to the extent that action that may be taken because of the term is not unlawful under any anti - discrimination law in force in a place where the action may occur.
(3) A term of an enterprise agreement does not discriminate against an employee merely because it provides for wages for:
(a) all junior employees, or a class of junior employees; or
(b) all employees with a disability, or a class of employees with a disability; or
(c) all employees to whom training arrangements apply, or a class of employees to whom training arrangements apply.
Special measures to achieve equality
(4) A term of an enterprise agreement is a special measure to achieve equality if:
(a) the term has the purpose of achieving substantive equality for employees or prospective employees who have a particular attribute or a particular kind of attribute (as the case may be) mentioned in subsection (1), or a particular combination of these; and
Note: For example, a term that has the purpose of achieving substantive equality for employees who are female and have a physical or mental disability.
(b) a reasonable person would consider that the term is necessary in order to achieve substantive equality.
(5) A term of an enterprise agreement is to be treated as having the purpose referred to in paragraph (4)(a) if it is:
(a) solely for that purpose; or
(b) for that purpose as well as other purposes, whether or not that purpose is the dominant or substantial one.
(6) However, a term of an enterprise agreement ceases to be a
special measure to achieve equality after substantive equality for the
employees referred to in paragraph (4)(a) has been achieved.