From today, Victorian employers have more onerous obligations in relation to preventing discrimination and harassment in the workplace.
Today the Equal Opportunity Act 2010 (Vic) (new Act) commences, replacing the Equal Opportunity Act 1995 (Vic).
The new Act requires employers to proactively address discrimination and harassment in the workplace. Employers need to take positive steps to eliminate discrimination and harassment. Such steps include ensuring policies are in place that deal with discrimination, harassment and bullying, and ensuring that employees are properly trained in the employer's policies and their obligations in respect of workplace conduct. Failure to comply with the new Act may expose employers to investigations and an increase in employee claims.
Under the new Act, employers have a positive duty to eliminate discrimination, sexual harassment and victimisation. Previously employers focused more on responding to these issues as they arose. Employers are now required to take 'reasonable and proportionate measures' taking into account the size and nature of the business, the resources available to the business, the operational priorities of the business, and the practicality and cost of taking such measures.
Employers also have a positive duty to make reasonable adjustments for employees with an impairment, (including an impairment that may exist in the future). Whether an adjustment is reasonable will depend on a number of factors including the nature of the impairment and the size and nature of the business.
Under the new Act the definitions of direct and indirect discrimination are simpler.
Also, employers have the onus of proving that any requirements, conditions or practices that allegedly indirectly discriminate against employees are reasonable.
The prohibition against sexual harassment has been extended to cover unpaid workers and volunteers.
Extended powers of the Victorian Equal Opportunity and Human Rights Commission (VEOHRC) and consequences of non-compliance
VEOHRC will have new powers to conduct investigations and public inquiries into suspected contraventions of the new Act. Employers may be required to produce documents to VEOHRC or attend VEOHRC to provide information in relation to an investigation or inquiry.
If an employer is found to have contravened the new Act, VEOHRC may issue a compliance notice or accept an enforceable undertaking.
Under the new Act, disputes about compliance with the new Act can be made directly to the Victorian Civil and Administrative Tribunal (VCAT) irrespective of whether VEOHRC has dealt with the dispute first. Previously a dispute was known as a 'complaint', and had to be made to VEOHRC and dealt with there before proceeding to VCAT.
What employers should do
To ensure compliance with the new Act, employers should consider their compliance obligations and take any necessary steps to ensure they are meeting them. We recommend that employers:
- review or implement relevant policies including a complaints handling process and ensure these policies are easily accessible to their employees;
- ensure all employees, including management, are properly trained in relation to the employer's policies and their obligations in respect of workplace conduct; and
- identify 'hot spots' in the organisation where discrimination, harassment or bullying issues arise or are likely to arise and take positive steps to address potential issues.
Employers should take action as soon as possible to ensure they are not caught out under the new Act.