Discrimination is a serious issue that affects many Australians in various areas of life, including employment, education, and the provision of goods and services. When discrimination occurs, individuals may have the right to seek redress through various legal channels. Two important bodies that handle discrimination claims in Australia are the Australian Human Rights Commission (AHRC) and the Fair Work Commission (FWC). While both commissions address discrimination, they do so within different legal frameworks, jurisdictions, and procedures. This blog will compare the jurisdiction of the AHRC and the FWC in relation to discrimination, highlighting the key differences, costs, timeframes, and potential outcomes, so that individuals can make an informed decision about which commission to approach.

1. Jurisdiction and Scope of Each Commission

Australian Human Rights Commission (AHRC)

The AHRC is responsible for handling discrimination claims under federal anti-discrimination laws. The Commission’s jurisdiction covers a wide range of discrimination matters, including race, sex, disability, age, and sexual orientation. The AHRC handles complaints relating to discrimination in multiple contexts, such as:

• Employment: Discrimination in the workplace (not limited to the employment relationship itself, but also recruitment, training, promotions, and termination).
• Goods and Services: Discrimination when accessing goods, services, and facilities.
• Education: Discrimination in schools and universities.
• Public Life: Broader issues of human rights violations and equal treatment in public settings.

The AHRC is often the first port of call for individuals who believe they have been discriminated against, especially when their claims involve broader human rights or when they do not involve specific workplace disputes governed by workplace legislation.

Fair Work Commission (FWC)

The FWC, on the other hand, has jurisdiction specifically over workplace disputes, including discrimination that occurs in the workplace. The Fair Work Act 2009 gives the FWC authority to hear discrimination claims related to:

• Employment: Discrimination in hiring, pay, promotions, conditions of employment, termination, and harassment in the workplace.
• Industrial Disputes: The FWC deals with matters related to unfair dismissal claims, and if discrimination is involved in the dismissal process, it may have jurisdiction to resolve the issue.

The FWC’s jurisdiction is narrower than that of the AHRC as it focuses specifically on employment-related discrimination.

2. Costs of Making a Discrimination Claim

Australian Human Rights Commission (AHRC)

A major benefit of lodging a discrimination complaint with the AHRC is that the process is free of charge. The AHRC aims to resolve complaints through conciliation and mediation, and there are no filing fees associated with the process. However, while there is no direct cost to submit a complaint, individuals may incur costs if they choose to hire a lawyer to represent them during the conciliation or investigation process.

Fair Work Commission (FWC)

Similarly, filing a discrimination claim with the FWC is free of charge. The FWC’s services for discrimination matters related to employment are provided at no cost, and there are no filing fees for discrimination-related complaints. However, similar to the AHRC, individuals may choose to engage legal representation, which can involve fees depending on the lawyer’s rates.

In both cases, the process is designed to be accessible without significant upfront costs, although seeking legal advice may add an additional expense.

3. Timeframe for Resolving Claims

Australian Human Rights Commission (AHRC)

The AHRC generally handles complaints in a conciliatory manner, seeking to resolve disputes without the need for formal legal proceedings. The timeframe for resolving complaints can vary depending on the complexity of the case and the cooperation of both parties. Generally, conciliation can take several months, but if conciliation fails or if the complaint is particularly complex, it may take longer. If the AHRC proceeds to a formal investigation, it could take over a year to complete the entire process.

While the process can be lengthy, the AHRC often encourages early resolution and provides mediation as a less adversarial option for parties involved.

Fair Work Commission (FWC)

Discrimination claims made to the FWC are generally resolved more quickly, particularly when they involve unfair dismissal or other immediate workplace issues. Claims filed with the FWC are usually expected to be heard within several months, depending on the complexity of the case and the workload of the Commission.

In workplace-related discrimination matters, the FWC can expedite hearings and resolutions if the complaint involves ongoing workplace discrimination or unfair treatment. As the FWC deals primarily with employment-related issues, its more streamlined focus allows for quicker resolutions in comparison to the broader range of human rights issues handled by the AHRC.

4. Possible Outcomes of a Discrimination Claim

Australian Human Rights Commission (AHRC)

The AHRC strives for conciliation as the preferred method of resolution, where both parties work with a conciliator to reach a mutually agreeable solution. Possible outcomes of an AHRC complaint include:

• Compensation: Monetary compensation for the complainant if they have been discriminated against.
• Apology: A formal apology from the respondent.
• Policy Change: The respondent may be required to alter their policies or practices to prevent further discrimination.
• Public Advocacy: The AHRC may advocate for broader societal change on the issue of discrimination, especially if the matter has a systemic impact.

If conciliation fails, the AHRC may refer the matter to the Federal Court or Federal Circuit Court for formal legal proceedings, which could result in a more formal ruling and legal consequences.

Fair Work Commission (FWC)

The FWC, particularly when dealing with workplace discrimination, also emphasizes conciliation. However, if the dispute cannot be resolved, the FWC has the authority to make legally binding decisions. Possible outcomes of an FWC complaint include:

• Reinstatement: In the case of unfair dismissal, the FWC may order that the complainant be reinstated to their former position.
• Compensation: The FWC can award financial compensation for any discrimination-related damages, including lost wages or emotional distress.
• Cease and Desist Orders: The FWC may order that the respondent stop discriminatory practices in the workplace.
• Apology: In certain cases, the FWC may facilitate an apology or public acknowledgment from the employer.

Which Commission Should You Choose?

The choice between the AHRC and the FWC largely depends on the nature of the discrimination claim:

• If the discrimination is employment-related, such as unfair dismissal or discrimination during the hiring process, the FWC is the appropriate body.
• If the discrimination is broader, such as in public life, education, or outside of the employment context, the AHRC is the correct forum for lodging the complaint.

At Fraser & Associates Lawyers, we can guide you through the intricacies of both commissions and help you determine the best course of action. If you have questions or need assistance with a discrimination claim, don’t hesitate to contact us.

Contact Fraser & Associates Lawyers Today

If you or someone you know is facing discrimination and unsure whether to go through the AHRC or FWC, we can help clarify your options and provide the legal support you need. Contact us today for expert advice tailored to your situation.