The Victorian Parliament recently passed a new Equal
Opportunity Act 2010 (Act), the substantive
provisions of which come into effect on 1 August 2011.
While the concepts and framework of the Act are the same as the
current Victorian Equal Opportunity Act 1995, the new Act
does introduce some key changes. These include:
Key changes
Duty to eliminate discrimination
Currently, employers are only required to demonstrate the steps
taken to prevent unlawful discriminatory behaviour from occurring
if a complaint is made. However, the Act imposes a new, positive
obligation on employers to take 'reasonable and proportionate
measures to eliminate discrimination, sexual harassment and
victimisation as far as possible'.
When considering what measures would be 'reasonable and
proportionate' the Act indicates certain factors that will be taken
into account, such as the size, nature and circumstance of the
employer's business, the employer's resources and the
practicability and cost of the measures. Accordingly, a large
company will be required to do more to eliminate discrimination
than, for example, a small not for profit organisation.
A new discrimination definition
The Act redefines and simplifies the concepts of direct and
indirect discrimination.
Direct discrimination will occur if a person is treated
unfavourably because they have a particular protected attribute
(such as race, sex, disability). There will no longer be a
requirement to compare the position of an individual without the
protected attribute in the same or similar circumstances.
Indirect discrimination will occur if a person imposes an
unreasonable requirement, condition or practice that has, or is
likely to have, the effect of disadvantaging persons with a
protected attribute. The complainant will not have to demonstrate
(as they currently do) that a substantially higher proportion of
people without the protected attribute can comply with the
requirement.
The changes to these definitions will make it easier for
complainants to demonstrate that they have been discriminated
against.
Altered role of the Commission
The Commission's role in handling complaints will be limited to
simply facilitating the resolution of disputes - a process that
will be completely voluntary. Accordingly, an employer (or the
complainant) will be able to walk away from the dispute resolution
process at any time. However, complainants will now be able to make
an application directly to the Victorian Civil and Administrative
Tribunal (VCAT) without having first gone through
the Commission. This is likely to mean employees will simply bypass
the Commission and bring a complaint directly to VCAT or pursue a
grievance through other mechanisms, such as claiming they are the
victim of 'adverse action' and applying to Fair Work Australia.
While the Commission will no longer be involved in investigating
individual complaints, it will be able to investigate or conduct a
public inquiry into an alleged breach of the Act where the breach
involves a class or group of people. The purpose of this new power
is to try to identify and eliminate systemic causes of
discrimination (such as a discriminatory policy pursued by an
organisation that affects a group of employees).
Changes to exceptions and exemptions
Some of the exemptions available in the current Equal
Opportunity Act 1995 will be removed, such as those permitting
discrimination in family employment, by small businesses or the
setting and enforcing of standards of dress and appearance. The
extent to which religious bodies and schools can discriminate
against people in employment situations will be tightened up, with
the exception only applying if conformity with a particular
requirement is an 'inherent requirement' of the particular
position.
The 'special needs' exemption has also been broadened, allowing
employers and others to limit eligibility for certain services,
benefits or facilities to meet the needs of people with a
particular attribute, without the need to demonstrate those people
are at a disadvantage.
Protection for volunteers
Volunteers have previously fallen outside the scope of
protection offered by the Equal Opportunity Act. However, the new
Act will apply to volunteers in respect of sexual harassment (not
discrimination).
Duty to accommodate
The Act requires an employer to make reasonable adjustments for
employees (or those offered employment) with an impairment, if such
an adjustment is required for him/her to perform the genuine and
reasonable requirements of the role. This change reflects a recent
change to the federal Disability Discrimination Act 1992
and could require an employer to, for example, provide ramp access
to the workplace, modify work instructions or permit an employee to
take more frequent breaks.
What employers should be doing now:
- Review your policies and procedures that deal with
discrimination, harassment and victimisation - are they up to date
and comprehensive? Ensure they are updated to take into account the
changes to the Act.
- Review the training provided to staff - has it been provided to
all employees and is it up to date?
- Ensure employees are aware of how to make complaints about
discrimination, harassment and/or victimisation and that those who
receive complaints understand how to handle such complaints
properly.
- Consider your organisation's history of complaints - are there
any particular risk areas?
- Assign responsibility for reviewing compliance with the Act and
ensure this task is completed.
Authored by Clare Hudson, Cornwall Stodart