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New protected attributes under the Fair Work Act’s Anti-Discrimination provisions


Your guide to the three new protected attributes under Anti-Discrimination provisions
Does your workplace comply with the new Anti-Discrimination provisions


In December 2022, three new protected attributes were added to the existing protected attributes under the Fair Work Act 2009 (Cth).









What are the new attributes?

1. Breastfeeding in the workplace

This includes expressing milk, breastfeeding, and the amount of time spent breastfeeding. An example of discrimination may include not providing a private and suitable space for breastfeeding or expressing to occur.

2. Intersex status

Intersex status is where a person may not be entirely male or female or is a combination of male and female. An example of discriminating against someone based on their intersex status could include deciding not to employ or promote someone based on their intersex status.

3. Gender identity

Gender identity refers to how a person chooses to identify or present themselves. For instance, a person may have been born as a male but identifies as female. Discriminating against someone based on their gender identity may include not using the person’s preferred pronouns.


What are the penalties?

If an employer is found to have discriminated against, or taken adverse action against a person based on the protected attributes under the Fair Work Act, they could face fines of up to:

  • a maximum of $16,500 per contravention for an individual.

  • a maximum of $82,500 per contravention for a company.


Tool and Resources


For any assistance in workplace inclusion programs or reviewing your Policies, Procedures and Training Programs to ensure they are compliant with these changes and/or understanding where an exception can be made, please contact Humanistic HR.

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