December 2021 27 A reform agenda for federal discrimination laws See Beth Gaze and Belinda Smith, Equality and Discrimination Law in Australia: An Introduction (Cambridge University Press, 2017) 37. 28 See discussion in, eg, Neil Rees, Simon Rice and Dominique Allen, Australian Anti-Discrimination and Equal Opportunity Law (Federation Press, 3rd ed, 2018) section 17.2. 29 Beth Gaze and Belinda Smith, Equality and Discrimination Law in Australia: An Introduction (Cambridge University Press, 2017) 59. However, not all employees and employers are covered, due to Constitutional complexities: Neil Rees, Simon Rice and Dominique Allen, Australian Anti-Discrimination and Equal Opportunity Law (Federation Press, 3rd ed, 2018) [17.1.6]–[17.1.8]. The Fair Work Act is also limited in other ways. For example, there is no definition of discrimination, and it is therefore not clear that indirect discrimination is covered; there are no definitions of the attributes so they can be interpreted narrowly; the defences are broad - it is not necessary for the employer to establish that the employee is unable to perform the inherent requirements of the position (only that the employer’s genuine reason for taking the adverse action was because of the inherent requirements of the position) and it is not necessary to have regard to ‘reasonable adjustments’ to the position. 30 ‘Protections at Work’ Fair Work Ombudsman (Web Page, April 2021) <https://www.fairwork.gov.au/tools-andresources/fact-sheets/rights-and-obligations/protections-at-work> 31 Fair Work Act 2009 (Cth) s 539 table item 11 and Part 5-2, Division 3. 32 Fair Work Act 2009 (Cth) ss 539, 545, 546. 33 Belinda Smith, ‘What Kind of Equality Can We Expect from the Fair Work Act?’ (2011) 35(2) Melbourne University Law Review 542, 572–573. 34 See, eg, ‘Duties of a PCBU’, <Duties of a PCBU | Safe Work Australia>. 35 Beth Gaze and Belinda Smith, Equality and Discrimination Law in Australia: An Introduction (Cambridge University Press, 2017) 37. 36 Race Discrimination Act 1975 (Cth) s 6A; Sex Discrimination Act 1984 (Cth) s 11(4); Disability Discrimination Act 1992 (Cth) s 13(4); Age Discrimination Act 2004 (Cth) s 12(4). 37 Australian Human Rights Commission, Respect@Work: National Inquiry into Sexual Harassment in Australian Workplaces (2020) 74. 38 Australian Government, A Roadmap for Respect: Preventing and Addressing Sexual Harassment in Australian Workplaces (8 April 2021) 2. 39 Australian Government, A Roadmap for Respect: Preventing and Addressing Sexual Harassment in Australian Workplaces (8 April 2021) 16, 10. See Sex Discrimination Amendment (Prohibiting All Sexual Harassment) Bill (Cth) 2021. 40 48 Sex Discrimination and Fair Work (Respect at Work) Amendment Act 2021 (Cth). FREE AND EQUAL An Australian Conversation on Human Rights