A small business in Perth recently posted a job ad on Gumtree that said "No bogans or rough people need apply". Is this a violation of workplace discrimination laws? Let's find out.
The term 'bogan' has had a place in the Aussie lexicon for decades. The Australian National Dictionary Centre defines 'bogan' as "An uncultured and unsophisticated person; a boorish and uncouth person". It has traditionally been regarded as a derogatory term although some people consider it an endearing Australian stereotype.
While it's not against the law to hold a personal prejudice against those who are considered 'bogan', can a workplace refuse to hire someone based on the fact that they fit that profile?
There were heated debates online regarding the job listing from the Perth business that distinctly states that "bogans or rough people" need not apply. But let's look at whether or not the business has broken the law.
According to a paper by legal advisor Angelo Capuano in the University of New South Wales Journal, there are pieces of legislation in Australia that are there to prevent workplace discrimination based on social origin (or class):
- Section 351 of the Fair Work Act 2009: "An employer must not take adverse action against a person who is an employee, or prospective employee, of the employer because of the person's race, colour, sex, sexual preference, age, physical or mental disability, marital status, family or carer's responsibilities, pregnancy, religion, political opinion, national extraction or social origin".
- Section 772 of the Fair Work Act 2009: " An employer must not terminate an employee's employment for one or more of the following reasons, or for reasons including one or more of the following reasons: … (f) race, colour, sex, sexual preference, age, physical or mental disability, marital status, family or carer's responsibilities, pregnancy, religion, political opinion, national extraction or social origin".
Now you may think, "Okay, so there's a definitive answer that it's illegal to discriminate against bogans". Unfortunately, the Fair Work Act doesn't exactly give a clear definition of what "social origin" or "class" refers to.
Capuano said in his paper:
"While discrimination on the basis of ‘social origin’ has been expressly defined by the Committee of Experts to include discrimination on the basis of ‘class’, it was interesting to note that the Committee of Experts does not expressly give meaning to this constituent element of ‘social origin’."
There's a suggestion that 'social origin' in relation to 'class' can be "measured by the lack of a person’s economic, social, cultural or human capital". While a so-called 'bogan' is generally associated with somebody who comes from a lower socio-economic background, there may not necessarily be true; you can be rich and living in a nice suburb and still have the traits that are associated with 'bogans'; hence the emergence of the term "cashed-up bogans".
Workplace legal experts who spoke to News.com.au have also noted that the use of the word 'bogan' in a job ad may not have broken any anti-discrimination laws. Even so, it's just in poor taste to refer to people as 'bogans' in a job ad; would want to work for a company like that anyway?
WA Equal Opportunity Commission acting commissioner John Byrne has said using the term 'bogan' in the ad did not breach the Equal Opportunity Act. Instead, he noted that it’s the ad's specification that the company wants to hire international students that could be problematic.
Byrne told News.com.au:
"Presumably, this employer would reject an application from a student who was not an international student, but if the employer’s decision was based on the race of the applicant, including the person’s ethnic or national origin, it might be unlawful."
You can read up on all the previous instalments of Is It Legal? here.