Jurisdiction - Australia
Reports and Analysis
Asia Pacific – Discrimination And Equal Opportunity Laws In The Region.

31 March, 2015

 

 
The rules on discrimination and equal opportunity in employment differ widely from country to country. We compare these rules and the principles behind them, and share our recommendations on the “hot button” issues in Australia, Singapore, Indonesia, the Philippines, People’s Republic of China, Hong Kong, Thailand and Vietnam.
 
  Legislation Principles “Hot Button” Issues Recommendations
Australia Fair Work Act 2009 (Cth) and other federal, state and territory legislation
  • Protection against discriminatory practices, based on a multitude of specifically-protected attributes, that are linked to adverse action against employees or prospective employees
 
  • Discrimination on an unlawful ground is prohibited whether it is direct or indirect
 
  • An action may not be discriminatory if based on the inherent requirements of the particular position concerned
Gender, pregnancy, sexual orientation, ethnicity
  • Avoid specifying attributes or criteria related to any of the protected attributes
 
  • Actions taken by employers should not be based on any of the protected attributes
Singapore None, but note the Tripartite Guidelines on Fair Employment Practices and Tripartite Guidelines on Non-Discriminatory Job Advertisements. 

Limited protection from dismissal based on certain protected characteristics is provided for in the

  • Selection of candidates based on merit, i.e. qualifications, skills, experience and attributes which are pertinent to the job
 
  • No list of specifically-protected attributes, although there are “hot button” attributes
Race, nationality, age
  • In job advertisements, ensure that a specific attribute is indeed required, and state the reason for the requirement in the advertisement
 
  • In setting remuneration and benefits, ensure that objective selection criteria is used
Indonesia Labor Law, Human Rights Act and laws ratifying various International Labour Organisation (ILO) and United Nations (UN) conventions
  • Every worker has the same opportunity to obtain a job without discrimination
 
  • Equal treatment from the employer without discrimination on the basis of certain protected characteristics
 
  • May not be considered discriminatory for an employer to select candidates based on bona fide occupational qualifications required for the job
Gender, race
  • Ensure that candidates are selected based on bona fide occupational qualifications
 
  • Be aware of certain obligations with respect to equal treatment in the Human Rights Act and ratified conventions
The Philippines Labor Code, Magna Carta of Women, Magna Carta for Disabled Persons, Solo Parents Welfare Act
  • Discrimination against women solely on the basis of her gender is prohibited
 
  • Discrimination only when one is denied privileges that are granted to others under similar conditions and circumstances
 
  • Hiring and disciplining of employees fall under the ambit of the “management prerogative”, which entitles employers to regulate aspects of employment at their discretion
 
  • May not be considered discriminatory for an employer to select candidates based on bona fide occupational qualifications required for the job

 

Gender, marital and family status, disability
  • Avoid any gender-related qualifications or criteria
 
  • Ensure that candidates are selected based on bona fide occupational qualifications
People’s Republic OfChina Labour Law, Employment Promotion Law, Law on Protection of Rights and Interests of Women and various local laws
  • Protection against discrimination on certain specified grounds
 
  • Women are to be provided with equal rights as men with respect to employment, unless the work or position is unsuitable for women
Gender
  • Be aware of specific obligations and prohibitions relating to discrimination based on gender
 
  • Be aware of specific prohibitions against the discrimination of carriers of any epidemic pathogens
Hong Kong Sex Discrimination Ordinance, Disability Discrimination Ordinance, Family Status Discrimination Ordinance, Race Discrimination Ordinance
  • Prohibition against direct and indirect discrimination based on certain protected characteristics, as defined in each individual ordinance
 
  • Exceptions to discrimination based on genuine occupational qualifications may be applicable in certain instances
Gender, pregnancy
  • Avoid qualifications or criteria related to gender, marital status or pregnancy 
 
  • Be aware of specific protections for disability, family status and race
Thailand Labour Protection Act, Labour Relations Act, Persons with Disabilities’ Quality of Life Promotion Act and ratified ILO conventions
  • Equal treatment of men and women, unless equal treatment is not possible based on the nature of the work
 
  • Equal pay for equal work
 
  • Discrimination on the basis of disability is prohibited
 
  • Discrimination on the basis of certain specified attributes is prohibited by the Constitution, but with limited remedies
Gender, disability
  • Ensure that men and women are treated equally in all instances (including in terms of pay)
 
  • Be aware of Constitutional protection against discrimination on certain specified attributes (enforceable to a limited extent through the Civil and Commercial Code)
 
  • Be aware of specific protections for disability
Vietnam Labour Code, Civil Code, Law on the Disabled
  • Individuals have the right to work and to freely choose the type of work they do
 
  • Individuals may freely choose the vocational training they participate in and have the right to improve their professional skills, all of which must take place without discrimination with respect to certain specified characteristics
 
  • Emphasis on gender equality; discrimination against female employees is prohibited
 
  • The Labour Code specifies that employers must give priority to a female who meets all the requirements for a job position that the business is seeking to fill and which can be filled by either a male or female
Gender, disability
  • Be aware of specific obligations and prohibitions relating to discrimination based on gender and disability

 

herbert smith Freehills

 

For further information, please contact:

 

Fatim Jumabhoy, Herbert Smith Freehills

fatim.jumabhoy@hsf.com

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