Three areas of activity which are covered in the Queensland Anti-Discrimination Act 1991 are particularly relevant to community organisations. These are:
- Work and work-related areas (this includes full time, part time, casual, permanent and temporary employment as well as students on work experience, persons working in a sheltered workshop and volunteers)
- The administration of State laws and programs
- The delivery of goods and services
However, the Queensland Anti-Discrimination Act 1991 states that the prohibition against discriminating in the provision of goods and services does not include goods and services providers who are associations:
- Established for social, literary, cultural, political, sporting, athletic, recreational, community service or any other similar lawful purpose; and
- Which do not carry out their purposes for the purpose of making a profit.
The Queensland Anti-Discrimination Act 1991 also provides that in certain circumstances it is not unlawful to discriminate where a "general exemption" applies. These general exemptions include:
- Welfare and equal opportunity measures that are not inconsistent with the provisions of the Anti-Discrimination Act 1991
- Acts done in compliance with or authorised by an order of a court, an existing provision of another Act, existing provisions of State industrial agreements, existing orders or awards of industrial Courts or Tribunals, or an order of the Anti-Discrimination Tribunal
- Acts reasonably necessary to protect public health or workplace health and safety
- Discrimination against a person subject to a legal incapacity if the incapacity is relevant to the situation
The Anti-Discrimination Tribunal may also grant an exemption to a person or class of people from the operation of a specific provision of the Act for a period not exceeding five (5) years.
In addition to the "general" exemptions", the Anti-Discrimination Act 1991 states that it is not unlawful to discriminate in relation to employment where other specific exemptions apply. These include:
- Genuine occupational requirements for a position (for example, employment of women in an organisation that only services women)
- Residential domestic arrangements (except on the basis of race)
- Residential child care arrangements (except on the basis of race)
- Work involving the care or instruction of children (however, it is only lawful to discriminate on the basis of lawful sexual activity or gender identity) - the employer would need to demonstrate that the discrimination was reasonably necessary to protect the physical, psychological or emotional well-being of minors having regard to all the circumstances
- Paying workers under 21 years of age according to the worker's age
Employers cannot refuse to employ someone because of a disability or impairment the person has, just because the person may require special services, facilities, other special conditions or adjustments. Special services, facilities, special conditions or adjustments may include physical adjustments to a building, rearrangement of office layout, swapping duties between jobs and provision of equipment. The individual person will generally know what he/she requires. Depending on the circumstances, expert assistance may also be required.
However, if a person with a disability would require special services or facilities and the supply of those special services or facilities in the workplace would impose "unjustifiable hardship" on an organisation, it is not mandatory to employ the person. In assessing this, consideration should be given to the nature of the special services or facilities, the cost, the financial circumstances of the person, the disruption that supplying the special services or facilities might cause and the nature of any benefit or detriment to all concerned. It is also lawful for an employer to fix reasonable terms in relation to a person, who because of a disability or impairment, has a restricted capacity to do work genuinely and reasonably required or requires special conditions in order to be able to do the work.
In addition to prohibiting discrimination on the basis of certain attributes, the Queensland Anti-Discrimination Act 1991 makes sexual harassment unlawful. The Federal Sex Discrimination Act 1984 contains similar provisions.
Under the Queensland Anti-Discrimination Act 1991 sexual harassment occurs where a person:
- subjects another person to an unsolicited act of physical intimacy;
- makes an unsolicited demand or request for sexual favours;
- makes a remark with sexual connotations; or
- engages in any other unwelcome conduct of a sexual nature in relation to the other person.
And the person engaging in this conduct does so with the intention of offending, humiliating or intimidating the other person, or in circumstances where a reasonable person would have anticipated the possibility that the other person would be offended, humiliated or intimidated by the conduct.
Employers may be liable for their employees’ behaviour.
Under the Queensland Anti-Discrimination Act 1991, an employer may be liable for their employees' behaviour which is in breach of the Anti-Discrimination Act 1991, unless the employer can establish that reasonable steps have been taken to avoid contravention of the Anti-Discrimination Act 1991. Such reasonable steps include developing and disseminating a policy on discrimination and sexual harassment and educating and training employees about their rights and responsibilities in regard to discrimination.
Complaints of discrimination under the Anti-Discrimination Act 1991 must be made in writing to the Anti-Discrimination Commission within one year of the alleged contravention. Complaints may be accepted after the one year has expired if the complainant shows good cause. Complaints are investigated with a view to resolving them through conciliation. If an agreement cannot be reached, the complaint may be referred to the Anti-Discrimination Tribunal for a public hearing.
Further information in relation to other exemptions, unlawful conduct and provisions may be obtained from the Anti-Discrimination Commission at the following address:
53 Albert Street
Brisbane QLD 4000
City East Post Shop
PO Box 15565
City East QLD 4002
Telephone: 1300 130 670;
The Anti-Discrimination Commission's website is: www.adcq.qld.gov.au.
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