The Equal Opportunity Act 2010 (Vic) (Act), commenced
on 1 August 2011, and introduces a number of key changes to equal
opportunity laws in Victoria. To ensure compliance with these new
obligations, businesses should consider immediately reviewing and
revising their equal opportunity, sexual harassment and
victimisation policies and processes.
The Act makes the following key changes:
Introduces a positive obligation on businesses to eliminate
discrimination, sexual harassment and victimisation.
All businesses must now take reasonable and proportionate
measures to eliminate discrimination, sexual harassment and
victimisation as far as possible. This means businesses will need
to be proactive about implementing steps to seek to prevent or
remove discriminatory practices. This new positive obligation is a
considerable shift from the previous legislation. The reasonable
and proportionate measures needed to satisfy the positive duty will
vary depending on the size, resources, nature, and business and
operational priorities of the organisation as well as the
practicability and cost of the measures in question. Examples of
the kind of action that would satisfy this obligation could extend
to a business undertaking an assessment of its compliance with the
Act and developing a compliance strategy.
Simplifies the definitions of direct and indirect
Under the new Act the concept of direct discrimination is
simplified and there is no longer the requirement to establish
"less favourable" treatment. Rather direct discrimination
is defined as treating, or proposing to treat, a person
unfavourably on the basis of a protected attribute. Similarly, an
employer will have engaged in indirect discrimination if it
unreasonably imposes, or intends to impose, a requirement,
condition or practice that has the effect of disadvantaging persons
with an attribute. The person claiming discrimination no longer
needs to prove that a substantially higher proportion of people
without the particular attribute can comply with a requirement,
condition or practice. Further, under the Act, the person imposing
the requirement, condition or practice, will be required to prove
that it is reasonable in the circumstances. The effect of these
changes is that it is now likely to be easier for an employee to
establish direct or indirect discrimination.
Imposes a positive duty to make reasonable adjustments.
All businesses must now make reasonable adjustments for persons
with impairments or disabilities in employment, education and where
providing goods and services. Making reasonable adjustments
requires an employer, educational authority or service provider to
balance the need for change with the effort and expense involved in
making the change, as well as the ultimate benefit that it will
serve. A failure to implement reasonable adjustments will not be
discriminatory where the person would not have been able to perform
the genuine requirements of the position, participate in education
or access the services despite any reasonable adjustments.
Introduces a new informal dispute resolution service.
The new dispute resolution process is intended to be an entirely
voluntary service for parties involved in a dispute about
discrimination, sexual harassment or victimisation. Parties may
withdraw from the process at any time and make an application to
the Victorian Civil and Administrative Tribunal (VCAT), which will
continue to mediate and hear complaints.
Previous moves by the Labor Government to give the Commission
broader powers to conduct investigations and public inquiries have
been resisted by the Liberal Government. However, under the new
legislation, the Commission is able to conduct an investigation
into serious systemic discrimination that cannot reasonably be
expected to be resolved by dispute resolution or by VCAT.
The changes brought about by the new Act have the potential to
make a significant impact on the way businesses conduct their
affairs, particularly as a result of the positive obligation to
eliminate discrimination, sexual harassment and discrimination.
In order to ensure compliance with these new obligations,
businesses should familiarise themselves with the changes and
ensure that they undertake a thorough review of existing training
materials, policies and practices. Businesses should also consult
with external and internal stakeholders to analyse and identify
areas of possible discrimination, sexual harassment and
victimisation and develop an action plan suited to the organisation
that addresses these areas of concern.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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