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27 May 2010

New Equal Opportunity Act for Victoria heralds greater compliance obligations for employers

by Glen Bartlett

Although the important changes in the Equal Opportunity Act 2010 (Vic) will only take effect from August 2011, ill-prepared employers could be caught out.

In 2007, Julian Gardner, a former Public Advocate was commissioned by the Attorney-General to undertake a review of a number of areas of the Equal Opportunity Act 1995 (Vic) (EO Act). The Final Report, "An Equality Act for a Fairer Victoria", made in total 93 recommendations to reform the EO Act.

Following the Gardner Report, the Attorney-General announced a review of the EO Act, which has now culminated in the passing of the Equal Opportunity Act 2010.

The new EO Act was passed by the Victorian Parliament on 15 April 2010 and will come into effect in August 2011.

Important changes

A fundamental feature of the new EO Act will be its focus on eliminating persistent and systemic discriminatory practices.

The Explanatory Memorandum to the Equal Opportunity Act Bill 2010 states:

"The Equal Opportunity Act 1995 relies heavily upon the individual victim of discrimination, sexual harassment and victimisation to pursue complaints through the Commission and often the Victorian Civil and Administrative Tribunal in order to resolve their complaint. The Commission focused on the processing of these individual complaints, without having the necessary tools to resolve the underlying causes of the discrimination."

Some of the key changes the new EO Act will bring about is the introduction of broader investigation powers for the Victorian Equal Opportunity and Human Rights Commission and the advent of a new mandatory obligation to take active measures to eliminate discriminatory practices.

  • Broader investigation powers: The Commission will be reconstituted and granted a new role with wide-ranging powers to achieve compliance with the legislation which evidences a significant shift away from a complaints-based administrative forum for the resolution of individual disputes to the creation of an enforcement body that actively seeks compliance through fast and flexible dispute resolution.

The new enforcement regime will empower the Commission to take steps, on its own initiative, to actively investigate and ensure compliance with the legislation. There will also be broader powers given to the Commission as to the circumstances it can conduct an investigation, including conducting a public inquiry (see further below).

  • Positive duty for employers: Employers will have a clearer positive obligation to seek out and address persistent and systemic discriminatory practices. This duty, coupled with the new role for the Commission, has the capacity to significantly change workplace practices through active investigation and enforcement.

Duty to eliminate discrimination, sexual harassment and discrimination

Notably, there is a new Part 3 - Duty to Eliminate Discrimination, Sexual Harassment and Discrimination.

Section 15 in this Part:

  • imposes a mandatory obligation on employers to take reasonable and proportionate measures to eliminate discrimination, sexual harassment or victimisation as far as possible;
  • provides a contravention of this obligation can be the subject of an investigation or public inquiry by the Commission;
  • that in determining what is "reasonable and proportionate" the following factors must be considered: the size of the employer's business or operations, the nature and circumstances of the employer's business or operations, the employer's business and operational priorities and the practicability and the cost of the measures.

Although the way an employer meets this obligation (and the manner in which the above factors taken into account) are not yet clear, the new EO Act provides an example:

"A large company undertakes an assessment of its compliance with this Act. As a result of the assessment, the company develops a compliance strategy that includes regular monitoring and provides for continuous improvement of the strategy."

The Explanatory Memorandum also says:

"The duty will mean that duty holders will need to think proactively about their compliance obligations rather than waiting for a dispute to be brought to elicit a response. It may involve organisations doing such things as -

    • identifying potential areas of non-compliance:
    • developing a strategy for meeting and maintaining compliance (such as undertaking training or establishing policies);
    • reviewing and improving compliance where appropriate."

Importantly, an employer's apparent failure to meet this mandatory obligation may be subject to an investigation or public inquiry by the Commission under Part 9 of the new EO Act. This may occur in circumstances where the issue is serious in nature and relates to a class or group of persons and in the case of a public inquiry, concerns an issue of public interest.

Implications

The new EO Act will impose on Victorian employers additional obligations in relation to compliance with anti-discrimination laws.

Critically, it is important for employers to be aware of these significant changes that introduce new mandatory positive obligations to take reasonable measures to eliminate discrimination and sexual harassment. This has not previously existed under Victorian anti-discrimination laws and indeed anti-discrimination laws generally.

In a practical sense, employers will be required to be more proactive than ever before in terms of how they prevent and manage discrimination risks and behaviour. In particular, for larger employers they should review their current compliance measures to ensure that they meet the requirements of "reasonable and proportionate" measures. It may well be that the measures required of a larger employer are somewhat different to a small business employer.

Accordingly, in the lead-up period to August 2011, employers should review their current policies and practices and systems to ensure that any additional obligations placed upon them by the new EO Act will be met. A failure to conduct such a review may leave an employer exposed to scrutiny and the subject of an investigation or inquiry.

 

Thanks to Millen Lo for her help in writing this article.

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Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this communication. Persons listed may not be admitted in all States and Territories.