Is it legal to employ only non-smoker workers? What employee attributes are protected under law?

An ABC News article on 15 March 2018 highlighted that employers, across a broad range of areas, are advertising specifically for non-smoker employees. While this may appear to be discriminatory, it is not unlawful employment discrimination under Australian laws.

In Australia, anti-discrimination laws protect employees (or prospective employees) against discrimination on the grounds of certain attributes. Smoking is not specifically covered by these laws, so it is not something that an employee is protected against.

What are protected attributes? When is an employer unlawfully discriminating?

Australian anti-discrimination laws differ slightly in each state, but generally, an employee is protected against discrimination on the basis of the following:

  • Age, sex or race
  • Sexual orientation, gender identity
  • Disability (physical or mental)
  • Marital status, family or carer responsibilities
  • Pregnancy or breastfeeding
  • Religion or political opinion

The above attributes protect you from being discriminated against in the recruitment process or during your employment. During employment includes discrimination in consideration of the terms offered as part of your contract, training in your job, a promotion of transfer or dismissed from your job.  If your employer threatens or takes any of the following actions against you because of the above attributes, it is considered unlawful discrimination:

  • Refuses to employ you
  • Dismisses or fires you
  • Alters your position in a disadvantageous way
  • Discriminates between you and another employee

What is not protected? When is an employer not unlawfully discriminating?

There are certain attributes that are not protected, meaning it is not necessarily unlawful to discriminate against an employee, such as in the non-smoker employees example above. If your position has been changed in a way that you feel disadvantages you, but it was due to something such as poor performance, it is not unlawful. Employers may also advertise for applicants with certain attributes, qualification or skills that are an essential requirement for the job. For example, if driving is involved in a job, then the employer can lawfully only consider people with a driver’s licence for the position.

Please feel free to contact our Litigation and Dispute Resolution team if you think you have been discriminated against at work or wish to discuss any concerns.

Further information:

When is employment discrimination lawful?
How can you protect your business from bullying, harassment and discrimination claims?

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When is employment discrimination lawful?

It is well known that employment is an important factor for individual welfare and economic security. However, it is also well known that people with disabilities, older Australians, people that come from a diverse cultural or ethnic background find it more difficult to obtain jobs.

Employment discrimination can be defined as treating an employee or a group of employees less favourably than another employee or group in the workplace who are in the same or similar circumstances. However, the legislation provides certain exceptions when discriminatory conduct may be lawful. These would be the cases where an employer could have a strong defence in relation to discrimination claims made by a prospective or existing employee. A few examples of situation when an employer may be able to claim that discriminatory actions are justified are as follows:

  • The employee cannot perform the inherent requirements of the role
  • The employer’s ability (or inability) to make adjustments to offer or maintain employment which may result in an unjustifiable hardship for the employer, then it may be lawful for the employer to discriminate against a person with a disability
  • The employee has a condition or a disease where discriminating against that person would be seen as ‘reasonable’ as it would be a matter of protection of public health and safety
  • Court orders or compliance with certain legislation that may impose that an employee cannot work in certain environments (for example working with minors where the employee had a conviction relating to indecent assaults against children)
  • Discriminatory provisions based on citizenship status.

If you need further advice regarding lawful discrimination in the workplace, please contact Matthew Bridger:

e: | p: 02 6206 1300.

Making an Employee Redundant?

What should an Employer Do Before and After Starting the Redundancy Process?
  1. I have made that person redundant; why have they lodged an unfair dismissal application?

Properly making an employee redundant is not as simple as deciding that the employee’s position is no longer required, even if there are strong business grounds indicating that is the case. This is because terminating an employee due to the position no longer being required is and of itself not a defence to an unfair dismissal claim. Rather, it must be shown that the redundancy was a “genuine redundancy” within the meaning of the Fair Work Act for an employer to protect themselves from an unfair dismissal claim.

A “genuine redundancy” is defined in the Fair Work Act as follows:

  • a person’s employer no longer requires the person’s job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise; and
  • the employer has complied with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy.

Further, that section also provides that the termination of an employee is not a case of genuine redundancy if it would have been reasonable, in all the circumstances, for the person to be redeployed within:

  • the employer’s enterprise; or
  • the enterprise of an associated entity of the employer.

Failure to adhere to even one of the above steps is likely to render a termination not a genuine redundancy, despite the satisfaction of all the other required steps.

  1. What are changes in the operational requirements of my enterprise?

Generally speaking, a change in the operational requirements of an employer’s enterprise would be, for example, the introduction of machinery, downturn in business, outsourcing or the business being moved overseas.

  1. Can I make someone redundant even if some of that person’s duties are being performed by other employees?

Yes. A “genuine redundancy” will occur if a person’s “job” is no longer required, rather than the duties or tasks of that job no longer being. For instance, the Commission has found that there will be a genuine redundancy if an employee is terminated and the associated duties are assigned to other employees for the employer.

  1. What is my obligation to consult before I make someone redundant?

An employer is required to consult only if a modern award or enterprise agreement contains a requirement to consult about redundancy. It should be said though that nearly all modern awards and enterprise agreements contain a requirement to consult in relation to redundancy or the more generic “major workplace change”, in which redundancy would almost certainly fall within. In any event, if an employer is unsure about whether they need to consult, it is always best practice to consult with effected employees prior to making any decision to make redundancies.

It is crucial that an employer makes sure they properly follow the consultation clause in the applicable modern award or enterprise agreement, as the consultation clause may vary between instruments. Generally though, there is an obligation to notify an employee of a major workplace change, such as looking at making redundancies, and an obligation to discuss the redundancy with the affected employee(s) before an irreversible decision is made to make an employee(s) redundant. Consultation should occur in order to allow the effected employee(s) to an opportunity to be heard about the proposals before a decision is finalised.

  1. When will it be reasonable to redeploy an employee to another part of my business?

In our experience, sometimes employers fail to consider redeploying an employee in other parts of their business before making them redundant. Therefore, consideration is never given as to whether it would be reasonable to redeploy the redundant employee to perform another job in the business.

Far too often, employers fatally presume that a redundant employee will not accept a lower paid, lower responsibility job or lower hour job, and therefore do not offer the redundant employee redeployment into that position.

  1. I can just select whoever I want to make redundant, right?

No, even in circumstances where there is only 1 position out of 10 being made redundant. Some lawful, logical, sound or defensible selection process must be relied on by the employer in making a decision as to whom should be made redundant. If the selection process is not lawful, it may give rise to a claim by an employee for a breach of a general protection or a claim under an anti-discrimination law.


Before embarking on making an employee redundant, an employer must implement a proper procedure in order to minimise exposure to litigation in the form of an unfair dismissal claim, as well as consider all entitlements that will need to be paid to an employee on redundancy. However, if you need assistance in relation to conducting the redundancy process, contact our lawyers who have expertise in employment law.

For more information please contact Matthew Bridger

p: +61 2 6206 1300 | e:

Getting Redundancy Right – A guide for Employers

Most employers are aware what redundancy is. However, time and time again, employers do not understand or do not implement the proper process for making a position redundant.

  1. What is redundancy?

Practically speaking, redundancy occurs when an employer no longer requires an employee’s job to be performed by anyone. Common examples of redundancy include the introduction of new technology, a downsizing of a business due to decreased sales or production, restricting following a merger or business takeover, or the employer decides to relocate the business overseas.

  1. What is not redundancy?
  • the dismissal of an employee on the basis that the employer no longer requires or wants that specific employee, rather than no longer requiring that position to be performed;
  • the transfer of an employee’s duties to another employee, rather than a distribution of an employee’s duties to a number of other employees; or
  • the replacement of an employee by a more qualified or experienced person.
  1. What do employers need to pay someone who they have made redundant?

Most employers are aware that they must pay to an employee at the end of their employment, be it by way of dismissal or redundancy, their salary or wages up until and including their last day of employment, as well as all accrued leave entitlements, including annual leave and any long service leave. However, an employer is not required to pay to an employee at the end of the employment relationship any accrued sick leave entitlements, unless otherwise provided for.

It is too often the case that employers disregard other entitlements that need to be paid when making a person redundant. Most importantly, employers must pay redundancy pay in accordance with a modern award, enterprise agreement or pursuant to the provisions of the National Employment Standards (NES). In most cases, but not all, an award or enterprise agreement will reflect the NES.

Another entitlement that most employers overlook is the requirement that if an employee is made redundant effectively immediately, that is they are not provided with notice that their position is being made redundant, an employer must also pay to the employee payment in lieu of notice. Most awards or enterprise agreements would provide for the amount of pay in lieu of notice is required, but is usually again a reflection of the NES.

It is also important that an employer be aware that if an employee is over 45 years of age and has completed 2 years of continuous service with an employer, that employee must also be provided with 1 week additional payment in lieu of notice.

Note:    if an employee in the ACT has served for 5 or more years and they are made redundant, an employer will also be obliged to pay to the employee their pro rata long service leave entitlement.

For more information please contact Matthew Bridger

p: +61 2 6206 1300 | e:

Employees working from home?

Employees working from home and employer’s liability

Are you looking for ways to limit employer liability when your employees work from home?

Flexible work place arrangements are increasingly common with many workers now performing work duties from home. Accidents and injuries are inevitable depending on the nature of the work, there are ways for employers to reduce or limit their liability.

Employers should do the following in clear written terms of agreement:

Place limits on the scope of when the employee is employed by specifying the days and hours when the employee is “at work” and when they are not;

Require the employee to maintain a log book recording their time of commencement of work and when they stop for lunch and stop for the day. The log should contain a section in which the employee can record any incidents that occur during the work day;

Require the employee to notify you via email when they commence work for the day, when they stop for lunch and stop for the day;

Place limits on the additional tasks that the employee can undertake as part of their employment when they are working at home;

Formally restrict the parts of the employee’s home which are recognised as their actual “home-based work place” so that the rest of their house is not;

Clearly stipulate the employee’s primary duties in a way which restricts the types of activities that will be found to be incidental to their employment; and

Recognise and address any additional risks that exist – for example, if the employee wishes to work from home because they have recently had a baby, ensure your agreement clearly reflects for both parties what are the expectations regarding the care to be provided to the child and the tasks to be performed.

Employers should address the following:

Does their policy of Workers Compensation insurance provide coverage for work places in the home?

Does the employee have a policy of insurance that covers accidents in the home while working?

Is the home based work area OH&S compliant? Issues such as whether there is a First Aid kit, safety manual or functioning smoke alarm may need to be addressed.

An effective way of documenting the condition of the workplace is by requiring the employee to complete a safety check-list which contains these requisite OH&S items and others. Depending on the nature of the work, employers should consider completing a routine inspection of the employee’s home office or work space, and place obligations on the employee to comply with directions and maintain particular conditions.

Case Study

Our client was a qualified child carer working for a Not For Profit organisation providing child care services in the home. Up to four children would be cared for in her home. Lifting injuries are common in the child care industry however, Elringtons’ client was aware of proper lifting practices particularly with young children who can sometimes be difficult to handle when upset.

On a rainy day, our client had safely lifted up a 20 kg, 5 year old child who was in her care. At the same time, another small child ran past her from the room where the children were usually minded, into the back yard which was wet and slippery. Our client tried to follow the darting child into the back yard whilst still holding the 5 year old when she slipped on wet paving and fell. She successfully turned her body to one side to save the child she was holding but injured herself in the process.

Elringtons successfully acted for the child carer on the basis that is was an inevitable accident whilst performing work in the home. The injuries were significant, affecting the child carer’s ability to work in the future Our client received workers compensation coverage from the Not For Profit organisation’s insurer for her injuries.


The above suggestions are, depending on the circumstances, likely to reduce an employer’s liability for a worker’s injury claim. In some circumstances however, inevitable accidents occur and it is imperative that employers, who provide flexible work place arrangements where work is conducted in the home, ensure that their insurance arrangements provide adequate cover

For advice in relation to your obligations as an employer, or your rights as an employee, please contact Matthew Bridger:

e: | p: 02 6206 1300