Changes to the Equal Opportunity Act (Vic) 2010 have featured regularly in the media over the last 18 months.

Starting in 2010, the Brumby Government introduced significant changes to the Act which were to take effect a year later. However before those changes started, the Baillieu Government was elected and passed its own set of changes to the Act, to undo some of the Brumby Government’s amendments and put in place its own changes.

This has all caused confusion over what the current state of the Act is, what it means, and how it now applies.

Below is a summary of the major changes to the Act that now apply:

1. The role of the Victorian Human Rights and Equal Opportunity Commission is to:

• Conduct dispute resolution processes for complaints that are made to it;
• In limited circumstances, the Commission can also conduct an investigation into a matter that may be in breach of the Act. Those circumstances include: the matter being serious in nature, affecting a particular class of people, and occurring in circumstances where it cannot be expected that it can be resolved by a person making an application under the Act;
• Develop guidelines on compliance with the Act and assist organisations that volunteer, to develop their own Actions Plans for compliance with the Act; and
• If first invited by an organisation, conduct a review of that organization’s compliance with the Act.

1. Imposes positive obligations on employers:

• A person must take reasonable and proportionate measures to eliminate discrimination, victimisation and sexual harassment as far as possible; and
• Employers must make reasonable adjustments to enable those with a disability (be they employees or people that have been offered employment) to adequately perform the genuine and reasonable requirements of the role.

 

1. A new avenue for complaints:

• A person may apply directly to VCAT in relation to a breach of the Act without having to first go through the Commission’s dispute resolution process.

 

1. Simplified definitions of direct and indirect discrimination:

• The new definitions are shorter and remove some threshold requirements that previously had to be made out to prove discrimination occurred. This may make it easier to prove discrimination;

 

1. Exceptions to discrimination:

• Religious schools are exempt from the prohibitions on discriminatory conduct provided that the discrimination is necessary to confirm with the doctrines or beliefs of the religion or is necessary to avoid injury to the religious sensibilities of adherents of the religion. There is no longer any requirement for the school to also have to prove that discriminating against a person because of the attribute is also relevant to the inherent requirements of the position or role.
• Sex discrimination in sport will be permitted if it is intended to facilitate participation in the sport and is reasonable or if it a pathway to national or international elite competitions.
• Schools are exempt from the Act to the extent that they are implementing and enforcing reasonable standards of dress appearance and behavior for their students;
• The exceptions provided for “clubs” has also been increased to include political parties and political clubs. 

The impact of these new arrangements on discrimination claims against employers is yet to be felt. However with the introduction of new laws and the new simplified meanings of discrimination generally, it is useful time to review policies and procedures to ensure employment processes are still compliant.

 

The team at Zeitz Workplace Lawyers can assist you with any workplace issues you may have including managing and responding to discrimination claims. Please do not hesitate to give Susan, Nandi, Simon, or Sarah a call to discuss any of these issues further.

Disclaimer – This update is intended to provide commentary and general information only. It must not be relied upon as legal advice. Formal legal advice should be sought in relation to any matter arising out of this update.