New Equal Opportunity Act 2010 (Victoria)
6 July 2010
The Equal Opportunity Act 2010 was passed by the Victorian Parliament on 15 April 2010 and will come into effect on 1 August 2011.
The Act imposes wider and more onerous obligations on employers to take proactive steps to eliminate all forms of discrimination, sexual harassment and victimisation.
The Act also changes the focus of the Victorian Human Rights and Equal Opportunity Commission (HREOCV) from a complaints-handling organisation to a more active authority tackling systemic discrimination. For example, the current complaints system has been replaced with a more flexible alternative dispute resolution. The new process also gives people who complain about discrimination the choice to go straight to the Victorian Civil and Administrative Tribunal (VCAT) for a hearing of their complaint. The Act also provides the Commission with additional powers to investigate potential breaches of the Act, including the power to compel attendance and require production of documents.
One of the most important amendments is the proposed new definition of discrimination, which would make it easier for a complainant to establish direct or indirect discrimination. The new definition of direction discrimination removes the onus on the complainant to establish that he or she was treated less favourably than a person without that attribute in the same or similar circumstances. The new definition of indirect discrimination removes the onus on the complainant to demonstrate that a substantially higher proportion of people without that attribute can comply with the requirement, condition or practice. The definition also requires the person imposing the requirement, condition or practice to show that it is reasonable, rather than the onus falling on the complainant to show that it is not reasonable.
The new Act has also removed various exceptions to unlawful behaviour in order to render it more consistent with Federal EEO/Ant-Discrimination legislation. Exemptions which have been removed include the setting of standards of dress and behaviour and discrimination in family employment or by small businesses.
Furthermore, the Act has adopted some of the language and employer obligations to be found in the Federal Disability Discrimination Act 1992, for example placing a positive onus on employers to make reasonable adjustments for employees with impairments, unless the adjustments are not reasonable in certain circumstances or if, even after the adjustments are made, the employee could not or cannot adequately perform “...the genuine and reasonable requirements of the employment”. This is akin to the “inherent requirements” exemption contained in the Disability Discrimination Act 1992, but in some respects is more onerous.
The Act also introduces an obligation on employers to accommodate employees’ responsibilities as parents or carers.
Although there are currently some anomalies, it is intended that the Act applies (for the first time) to unpaid workers and volunteers from 1 July 2012.
What you should do?
- Ensure that you develop or update (as the case may be) comprehensive and legally-compliant Equal Opportunity/Anti-Discrimination policies and procedures;
- Ensure that you have in place adequate and updated Equal Opportunity/Anti-Discrimination policies and procedures;
- Ensure that these policies and procedures are properly implemented and advertised to your staff;
- Ensure that the responsible personnel (e.g. Management, EEO Contact Officers/Conciliators) have adequate training in these all-important areas;
- Ensure that your staff are properly educated in EEO so as to avoid or minimise the risk of, or at least be able to defend, ugly and expensive complaints/claims being brought against your organisation.