In the last few months, there have been significant changes in anti-discrimination laws around the country. In the Federal arena, significant changes to the Sex and Age Discrimination Acts apply now to all employers. Importantly, from 1 August 2011, employers in Victoria will be subject to a new Equal Opportunity Act. In this alert, we focus on the effect of these changes on employers.
Implications for Employers
- If you have employees in Victoria, you will need to familiarise yourself with the new obligations and exceptions under the Equal Opportunity Act 2010 (Vic) and the expanded functions of the Victorian Equal Opportunity and Human Rights Commission.
- You should be aware that employees can now make claims under Federal and many State laws on the basis of 'breastfeeding' and 'family responsibilities'.
- You should also be aware that the definition of sexual harassment in the Federal Act has been expanded to cover areas outside of the workplace or educational institutions – potentially including cyberspace.
- You should review equal opportunity and appropriate workplace behaviour policies to ensure that they are consistent with the changes to Federal and Victorian laws.
Federal Sex and Age Discrimination provisions strengthened
As the name suggests, the Sex and Age Discrimination Legislation Amendment Act 2011 (Cth) (Amendment Act) amended both the Sex Discrimination Act 1984 (SDA) and Age Discrimination Act 2004 (ADA). The amendments came into effect on 21 June 2011.
Amendments to the Sex Discrimination Act 1984 (SDA)
The amendments to the SDA are the most significant.
Importantly, the changes:
- extend protection from discrimination on the grounds of 'family responsibilities' to women and men in all areas of work. Previously, the SDA provisions applied only in relation to dismissal (although there are provisions under the Fair Work Act 2009 (Cth) prohibiting adverse action on the grounds of family responsibilities);
- establish breastfeeding as a separate ground of discrimination;
- expand both the definition of sexual harassment and its coverage (including for workers and students); and
- ensure that protections from sex discrimination apply equally to women and men.
Family responsibilities and breastfeeding
Previously, the protection from discrimination on the grounds of 'family responsibilities' only covered dismissals for employees and only in relation to direct discrimination. The new provisions extend this definition to 'areas of work' which would protect any person (of either sex) with family responsibilities (including contractors as well as employees). It now covers acts that fall short of a dismissal and also includes indirect discrimination.
Breastfeeding is a new protected ground under the Federal SDA. Breastfeeding is defined as the act of expressing milk and includes a single act of breastfeeding and breastfeeding over a period of time. This reflects the position in Victoria, Queensland, Tasmania, Western Australia, Northern Territory and Australian Capital Territory. In South Australia, breastfeeding falls within the definition of 'association with a child' and in New South Wales, it falls within the definition of 'sex' discrimination.
In the Federal SDA, both direct and indirect discrimination on the grounds of breastfeeding will be prohibited. This prohibition will cover various areas including work, education, goods, services and facilities, accommodation, land and clubs. However, any 'special measures' to address the needs of persons to breastfeed (such as a dedicated room in a workplace to feed or express) will not be considered discriminatory.
The definition of sexual harassment has been expanded. Sexual harassment was previously defined as a person making a sexual advance, requesting sexual favours or engaging in other conduct of a sexual nature in relation to another person that is unwelcome, and, in the circumstances a reasonable person (having regard to all the circumstances), would have anticipated that the person harassed would be offended, humiliated or intimidated.
Under the amendments to the SDA, the words 'the possibility' have been added after 'anticipated' so a reasonable person need only anticipate the possibility that the person harassed would be offended, humiliated or intimidated by the conduct.
Further, the test for 'having regard to all the circumstances' now includes (but is not limited to):
- the sex, age, marital status, sexual preference, religious belief, race, colour, or national or ethnic origin, of the person harassed;
- the relationship between the person harassed and the harasser;
- any disability of the person harassed; and
- any other relevant circumstance.
The areas in which sexual harassment is prohibited have also expanded. Previously it was prohibited at the 'workplace' of both participants, but this definition is now expanded and encompasses sexual harassment which arises between people employed by different organisations.
Similarly, in the area of education, sexual harassment will be prohibited not only at the education institution of the participants, but also at other educational institutions, such as at a sporting carnival or joint school theatrical production.
In the area of goods and services, customers were previously protected against sexual harassment from service providers. The new provisions now provide protection for service providers against sexual harassment by clients and customers.
A new Age Discrimination Commissioner
The new provisions also create a new position of Age Discrimination Commissioner (who will stand alongside the Sex Discrimination Commissioner (Elizabeth Broderick) and the Disability and Race Discrimination Commissioner (Graeme Innes).
According to the Explanatory Memorandum for the Amendment Act, the Age Discrimination Commissioner will engage with stakeholders to tackle discrimination in workplaces and the community, promote respect and fairness and tackle the attitudes and stereotypes that can contribute to age discrimination.
The new provisions give the Age Discrimination Commissioner powers to assist in certain proceedings in the Federal Court and Federal Magistrates Court.
A new era set to commence under the Equal Opportunity Act 2010 (Vic)
The former Victorian State Labor Government passed the Equal Opportunity Act 2010 (Vic) (EO Act 2010) in April 2010.
The EO Act 2010 commences on 1 August 2011 and replaces the Equal Opportunity Act 1995 (Vic).
The EO Act 2010 heralds some significant changes for employers - extending greater protections to employees and making it easier for claimants to bring and establish complaints of unlawful discrimination, particularly indirect discrimination.
However, the new Government has already made significant amendments to the EO Act 2010 before it comes into effect – which we examine below.
It is also important to appreciate that there are transitional provisions which mean that, if a complaint is received about conduct or practices occurring prior to 1 August 2011, the definitions and obligations in the Equal Opportunity Act 1995 (Vic) will still apply to that complaint.
The Main Changes under the EO Act 2010
The main changes under the EO Act 2010, which takes effect on 1 August 2011, will be:
- Employers will be required to make 'reasonable adjustments' to accommodate a person's 'impairment' (unless the person or employee could not adequately perform the genuine and reasonable requirements of the employment even after the adjustments are made).
- Employers will have a positive duty to take reasonable and proportionate measures to eliminate discrimination, sexual harassment and victimisation. An alleged breach of this duty does not give rise to a basis for a complaint but, in some circumstances, could lead to an investigation by the VEOHRC.
- It will be easier for complainants to demonstrate indirect discrimination – with a broader definition of indirect discrimination and a reverse onus of proof (meaning the employer must establish that a requirement, condition or practice is reasonable).
- Complainants will be able to lodge their complaint directly with the Victorian Civil and Administrative Tribunal (VCAT) or elect to utilise the VEOHRC's dispute resolution processes first.
What was the effect of the 2011 amendments?
Although the EO Act 2010 is yet to come into effect, it has already been significantly amended by the Equal Opportunity Amendment Act 2011 (Vic) (2011 Amending Act). If your organisation had already familiarised itself with the EO Act 2010 prior to the introduction of the 2011 Amending Act, the following changes will be of interest.
The VEOHRC will not have the power to conduct public inquiries that were previously envisaged. Its power to conduct investigations has been retained, but will now only be able to be exercised where a dispute cannot reasonably be expected to be resolved by dispute resolution or by making an application to the VCAT. It is anticipated that the VEOHRC may use its investigation power to examine systemic discrimination in workplaces.
Exemptions for religious schools and bodies have been restored, so that they can lawfully take into account a person's religious belief, sex, sexual orientation, lawful sexual activity, marital status, parental status or gender identity when making employment decisions. The employment exception was previously to be removed, except in so far as conformity with the religious body's doctrines or beliefs constituted an inherent requirement of the position. Notwithstanding the breadth of the exemption, religious schools and bodies in Victoria must remain mindful of any co-existing obligations under Federal anti-discrimination legislation, which may be less permissive.
New exceptions for youth wages, accommodation that is unsuitable for children and clubs that are established principally for political purposes have been introduced.
The relationship between reasonable adjustments and disability standards made under the Disability Discrimination Act 1992 (Cth) and determinations made under section 160B of the Building Act 1993 (Vic) has been clarified.