What's changing: SA to expand jurisdiction and Vic introduces "employment activity" discrimination

By Lucienne Mummé.

Key Points:
The proposed South Australian amendments if enacted will introduce a handful of new grounds of discrimination. The Victorian amendments introduce the novel ground of discrimination based on "employment activity".

Both South Australia and Victoria have recently proposed amendments to their respective anti-discrimination laws.

The proposed South Australian amendments are still pending, but if enacted will introduce a handful of new grounds of discrimination including caring responsibilities and religious appearance or dress.

In Victoria the proposed amendments have recently been passed by the Victorian Government and awaiting proclamation of a commencement date. The Victorian amendments are novel, as they introduced a ground of discrimination based on "employment activity". There is no equivalent elsewhere within the Australian anti-discrimination legal framework.

South Australia

Currently the Equal Opportunity Act 1984 (SA) prohibits unlawful discrimination on the limited grounds of sex, sexuality, marital status, pregnancy, race, impairment and age. The SA Act also makes it unlawful to engage in sexual harassment and victimisation.

Notably, the Equal Opportunity (Miscellaneous) Amendment Bill (2006) (SA) proposes to do as follows:

• To extend the grounds of discrimination to include caring responsibilities. Some other states for example New South Wales already make it unlawful to discriminate on the ground of "responsibilities as a carer".
• To replace the definition of "impairment" with a definition of "disability" that is the same as that found under the federal Disability Discrimination Act 1992 (Cth). The federal definition is generally regarded as embracing a broad notion of what constitutes disability. The SA Act currently defines "impairment" to mean simply either an "intellectual impairment" or a "physical impairment".
• To replace references to "transsexual" or "transexuality" with references to "chosen gender".
• To extend the SA Act to cover discrimination against independent contractors in particular circumstances.
• To add new grounds of discrimination based on the identity of one's spouse, profession, trade or lawful occupation, area of residence and religious appearance or dress.

Victoria

In Victoria the Equal Opportunity Amendment Bill 2007 has been passed by the Victorian Parliament. The Victorian Bill introduces a new ground of discrimination in the Equal Opportunity Act 1995 (Vic) based on "employment activity". The amendments will make it unlawful for an employer to discriminate against an employee on this ground. "Employment activity" means actions by an employee where they:

• make a reasonable request to their employer, orally or in writing, for information concerning the employee's employment entitlements;
• communicate with their employer, orally or in writing, about a concern of the employee that he or she has not been, is not being or will not be, given the employee's employment entitlements.

The Victorian Bill also provides a definition of what constitutes "employment entitlements" to mean:

"the employee's rights and entitlements under an applicable -

(a) contract of service, including a workplace agreement, employment agreement or award within the meaning of the Workplace Relations Act 1996 of the Commonwealth; or
(b) contract for services; or
(c) Act or enactment; or
(d) law of the Commonwealth".

The Explanatory Memorandum provides that a request for information would include questions about the source of the employee's employment entitlements, what the entitlements are and whether the employee has been, is being, or will be given those entitlements and any concerns communicated by an employee would include concerns of this kind. The Memorandum provides by way of example that such questions/comments as follows would constitute an "employment activity":

• What is my rate of pay?
• How many holidays have I accrued?
• Do I have an entitlement to paid maternity leave?
• I am worried that I have not been paid my overtime allowance.
• Someone has told me that the company is going under and I will not be paid my redundancy pay.

Final comments

The SA Bill, if enacted, may lead to a more active jurisdiction than before. The 2006 Annual Report for the South Australian Equal Opportunity Commission provided that during the period 1,483 complaints were made under the SA Act. In the future, this figure may well rise if the jurisdiction is expanded.

In Victoria the new ground of "employment activity" remains untested and it will be interesting to see how the renamed Victorian Equal Opportunity and Human Rights Commission will assess complaints alleging discrimination on this basis.

Certainly, the Victorian Bill at this stage provides no guidance as to what constitutes a reasonable request by an employee. In this regard, it is of interest that the Explanatory Memorandum provides that the attribute of "employment activity" is not meant to provide a mechanism for enforcing employment entitlements or for negotiating a pay rise or other terms and conditions of employment more generous or different than those to which an employee is currently entitled.

Thanks to Andrew Low for his help with this article.

For further information, please contact Lucienne Mummé.