Introduction

Under the general protections provisions of the Fair Work Act 2009 (the “FW Act”), employers are prohibited from discriminating against employees, or prospective employees, on various protected grounds, including their social origin. While the majority of claims in this area involve discrimination based on race, gender, age or sexual orientation, social origin has been a comparatively underdeveloped area.

Although social origin is a relatively ambiguous concept, its ties to class and cultural customs give rise to the possibility of strongly held beliefs being included as a protected ground. With recent social discourse surrounding topics such as vaccination, this could potentially open up a new area of risk for employers when it comes to managing their employees.

What constitutes social origin

The concept of discrimination based on a person’s social origin has its roots in international law, with the International Labour Organisation including social origin as a ground of discrimination in the Discrimination (Employment and Occupation) Convention 1958. This has been incorporated into the FW Act as well as the Australian Human Rights Commission Act 1986 (Cth) as a protected ground, along with other grounds such as a person’s race, sex or religion.

While the convention and legislation do not provide any definition or further clarification on what constitutes a person’s social origin, academic papers have sought to clarify this area by referring to notions of class, caste and socio-occupational status. Relevantly, it has been argued that apart from factors such as a person’s access to economic capital, social origin also includes their access to social and cultural capital. To that end, “cultural capital” includes “dispositions of the mind and body” and “ways of thinking” that are acquired through socialisation and upbringing.

This same line of reasoning was adopted by the Fair Work Commission (“FWC”) in a recent decision which considered whether an employee had been discriminated against on the basis of their social origin due to their anti-vax beliefs. Despite not finding in favour of the applicant, the FWC concluded that it was plausible for a person’s status as an anti-vaxxer to constitute a “disposition of the mind and a form of cultural capital”, which fell within the concept of their social origin.

Broadening areas of discrimination law

Although the FWC found that the applicant was not directly discriminated against, the acceptance of anti-vax beliefs as an example of a person’s social origin opens up the potential of further beliefs being included as a protected ground. For example, using the same line of reasoning it would be plausible for other types of strongly held beliefs such as ethical veganism be included as a person’s social origin.

In the United Kingdom, the Equality Act 2010 (“Equality Act”) includes protections against discrimination based on a person’s religion or belief, which includes a person’s philosophical belief. In 2020, the United Kingdom’s Employment Tribunal published a preliminary judgment which found that an applicant’s ethical veganism amounted to a philosophical belief for the purposes of the Equality Act (read our article here). Although the judgment relied upon this specific ground of the legislation, the judgment referred to the strength of the applicant’s belief, with references made to his choice of clothing, use of personal products, hobbies and jobs.

While this specific example has not yet been tested in the Australian context, the broad nature of concepts such as social origin in Australian discrimination law opens up the possibility of other socio-cultural beliefs and practices being included as potential grounds for a discrimination claim against employers.

Key takeaways

• Discrimination law in Australia includes protections for a person based on their social origin, which is a broad concept that encompasses different ideas relating to class, culture and social status.
• Depending on the circumstances, strongly held beliefs such being an anti-vaxxer could potentially be included as part of a person’s social origin.
• The broad nature of this ground opens up the potential for more novel socio-cultural beliefs and practices being developed as protected grounds under discrimination laws.

Kirryn West James, Director