New discrimination laws in Victoria
On 1 August 2011, the Equal Opportunity Act 2010 (Vic) (New Act) commenced operation. The New Act replaced the previous Equal Opportunity 1995 (Vic) (Old Act), and introduced a number of significant changes to discrimination law in Victoria.
The changes introduced by the New Act are timely in light of significant amendments which have been made to discrimination legislation in the federal jurisdiction over the past 2 years – the changes introduced to the Disability Discrimination Act 1992 (Cth) in 2009 and the introduction of the general protections provisions and flexible working arrangements provisions in the Fair Work Act 2009 (Cth).
Features of the New Act
The New Act contains a number of important new features, including in relation to how the legislation applies, exceptions and exclusions, positive obligations, and the powers of the Victorian Equal Opportunity and Human Rights Commission (Commission).
The most significant of these new features include the following:
- The definition of ‘disability’ (formerly ‘impairment’) now specifically includes a disability which may exist in the future because of genetic predisposition and behaviour that is a manifestation of a disability.
- The introduction of a positive duty for ‘duty holders’, which includes employers, to take “reasonable and proportionate measures to eliminate discrimination, sexual harassment or victimisation as far as possible.” The positive duty means that duty holders need to be more proactive in relation to their compliance obligations than in the past.
- Duty holders must make reasonable adjustments for persons with disabilities in the areas of employment, education, partnership with firms and the provision of goods and services. In employment, this obligation extends to prospective employees, as well as current employees. For example, an employer may be able to make reasonable adjustments by modifying work instructions or providing special equipment to enable the person to carry out their employment. This obligation is subject to the qualification that such adjustments must not be made if, even after the adjustments, the person could not adequately perform the genuine and reasonable requirements of their employment.
- The definitions of direct and indirect discrimination have been simplified. The new definition of ‘direct discrimination’ removes the ‘comparator test’ – that is, the requirement to prove that the treatment was less favourable than treatment someone without the attribute or with a different attribute, in the same or similar circumstances, would have received. Under the new definition this test is replaced with a test based on unfavourable treatment. Likewise, the new definition of indirect discrimination removes any comparator requirement and focuses on conduct which has the effect of disadvantaging persons. Indirect discrimination continues to include a reasonableness requirement. The simplified definitions will, arguably, result in a complainant being more easily able to establish that unlawful discrimination has occurred.
Other important new features include:
- A change to the definitions of employer, employee and employment which extends the prohibition of sexual harassment provisions under the New Act to include unpaid workers and volunteers.
- Changes to various exceptions to discrimination under the New Act. Of particular note, is the inclusion of a new ‘special measures’ exception, which allows discrimination for the purpose of achieving substantive equality for groups with a particular attribute. This would, for example, allow programs designed to increase diversity on boards and in senior management positions by promoting candidates with a particular attribute.
- Voluntary participation in the dispute resolution processes of the Commission. As a result, complaints (now called disputes) can be lodged directly with the Victorian Civil and Administrative Tribunal.
What does the New Act mean for employers?
The New Act imposes a number of new positive obligations on employers and, arguably, makes establishing unlawful discrimination less onerous. Accordingly, it is imperative that employers review their policies and procedures to ensure they reflect these new obligations and adequately discharge them. Employers should consider:
- when training was last provided to their employees in relation to equal opportunity and the adequacy of that training in light of the provisions of the New Act;
- whether their Managers are adequately trained in dealing with complaints or allegations of a discriminatory nature arising under the New Act;
- what reasonable adjustments are in place to enable employees with a disability to carry out their role; and
- what steps have been taken in the workplace to comply with the positive duty to eliminate discrimination, sexual harassment and victimisation.
The content of this publication is for reference purposes only. It is current at the date of publication. This content does not constitute legal advice and should not be relied upon as such. Legal advice about your specific circumstances should always be obtained before taking any action based on this publication.