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Thematic Issue: Vulnerability and the Law

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


Dominique Allen

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.

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(2018) 41(3) UNSWLJ 846: