Issues for incorporated associations

The issues that are most likely to be relevant to incorporated associations are in the areas of employment, and the provision of goods, services and facilities.  In addition, an incorporated association may not discriminate on the ground of impairment, age or race in relation to membership of the incorporated association.

Employment

Incorporated associations that are employers are prohibited under Commonwealth and Western Australian laws from discriminating against employees (both current and prospective, and whether full-time, part-time or casual) in the area of employment.  It is unlawful to discriminate against a person when deciding who should be offered employment, the terms on which employment is offered, the terms and conditions of employment, and allocation or access to benefits (e.g. promotion and training).

It is also unlawful for a principal to discriminate against a contract worker in relation to the terms and conditions of contract work, not allowing the contract worker to work or continue work, access to benefits, or any other detriment.

Discrimination may not be unlawful in certain circumstances because of certain exceptions set out in the legislation.  For example, where the duties performed need to be done by a person of the relevant sex to preserve privacy, discrimination on the ground of sex is lawful.

It is also not unlawful to discriminate against a person on the ground of disability or impairment if that person is not able to carry out the inherent requirements of their job, or is only able to carry out those requirements with the assistance of services or facilities which, if provided, would impose an unjustifiable hardship on the employer.

Example of lawful discrimination

An employee is told that she cannot be promoted because she has dyed her hair pink.  This might be considered unfair, but it is not illegal to discriminate against someone on the basis of hair colour – so the conduct is not unlawful discrimination.

However, if the employee is told that she cannot be promoted because she is too old, this is likely to be unlawful discrimination on the ground of age.

Goods, services and facilities

It is generally unlawful under both Commonwealth and Western Australian legislation to discriminate against a person on a prohibited ground in the provision of goods or services, whether for payment or not.  Goods would include things such as clothing, books, food and equipment.  The term 'services' includes services relating to the provision of finance, entertainment or recreation, transport or travel, and services of the kind provided by members of any trade or profession.

Exceptions may also apply in this area.  For example, it is generally lawful:

  • to supply bona fide concessions or benefits to persons on the basis of age (e.g. pensioner travel concessions); or
  • to give persons of a particular race, sex, age (or other attribute covered by the legislation) access to facilities, services or opportunities to meet their special needs in relation to employment, education, training or welfare.

Membership

In relation to membership of an association, there are only limited grounds for discrimination that are applicable. Discrimination on the ground of impairment or age (under Western Australian legislation) and on the ground of impairment (under Commonwealth legislation) is unlawful in relation to:

  • a person's application for membership;
  • the terms and conditions on which an incorporated association is prepared to admit the person to membership;
  • the general terms and conditions of membership; and
  • access to benefits and facilities provided by the incorporated association.
  • There are also specific exceptions where discrimination is not unlawful.  These include:
  • where the principal object of the associated incorporation is the provision of benefits to persons with a particular impairment or of a particular age;
  • where a benefit has to be provided to a person with an impairment in a special manner and it would be an unjustifiable hardship on the association to do so;
  • where a bona fide benefit or concession is based on age;
  • where membership categories are based on age.

Clubs

Although most clubs in Western Australia are incorporated associations, there are certain anti-discrimination provisions that refer specifically to clubs, but not necessarily to incorporated associations. The specific provisions relating to clubs, however, may apply to those incorporated associations that fall within the definition of a 'club'.

Under the EOA, a club is generally defined to include an incorporated association of not less than 30 persons associated together for a purpose including social, cultural, sporting or political purposes, and

  • that provides and maintains its facilities from the funds of the association; and
  • sells or supplies liquor for consumption on its premises.
  • In relation to membership of a club, the anti-discrimination provisions are more extensive than those that apply to an association that is not also a club. It is generally unlawful for a club, the management committee of a club or a member of the management committee of a club, to discriminate against a person on any prohibited ground in matters relating to:
  • a person's application for membership;
  • the terms and conditions on which the club is prepared to admit the person to membership;
  • the general terms and conditions of membership; and
  • access to benefits and facilities provided by the club.

There are also specific exceptions/exemptions where discrimination will not be unlawful in this area. 

For example, refusing membership to a club on the ground of a person's sex is generally not unlawful if membership of the club is available to persons of a particular sex only.  Please note that the Commissioner for Equal Opportunity has publicly flagged this particular exemption for review and a possible legislative change.

Note also that the specific exceptions listed above as applying to incorporated associations apply to clubs as well.

Temporary exemptions

There are circumstances in which an incorporated association may apply for a temporary exemption from the operation of part/s of Commonwealth anti-discrimination legislation and the Western Australian EOA.  A temporary exemption may be granted where circumstances exist which might constitute unlawful discrimination, but which can be shown to fit within the objects and scheme of the legislation.  For example, a temporary exemption might allow an organisation to offer a research award to women to increase the number of women in research positions within that organisation.

The effect of a temporary exemption is that discrimination covered by the exemption is not unlawful under the legislation while the exemption is in force.

The circumstances in which exemptions will be granted tend to be limited because of the permanent exceptions contained in the legislation, referred to above.  Consequently, exemptions at both Commonwealth and Western Australian level are not frequently granted.

To obtain an exemption, an incorporated association must apply in writing to the relevant body; that is,