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Workplace Discrimination in Victoria

People facing workplace discrimination in Victoria are covered by both State and federal anti-discrimination laws, and therefore may have several options to choose from when deciding to take legal action against discriminatory conduct.  The definition of workplace discrimination in Victoria is fairly uniform across the various Victorian and Commonwealth laws.  Discrimination is the less favourable treatment of a person who possesses a protected attribute (which includes gender/sex, sexuality, race and age) than a person who does not have that protected attribute.  The less favourable treatment must be on the basis of the protected attribute in order to constitute discrimination; however it does not have to be the sole reason for the less favourable treatment.

Victorian anti-discrimination legislation

Workers in Victoria may be covered by both State and Federal anti-discrimination laws.
All employees in Victoria, regardless of who they are employed by, are covered by the Equal Opportunity Act 2010.  The Act prohibits discrimination in the workplace, in deciding who should be offered employment and the arrangements of employment, in deciding who should be a partner or principal of a firm, and in a number of other employment-related areas.

The Act not only prohibits workplace discrimination in Victoria, but also sexual harassment, victimisation and vilification.  Sexual harassment is unwelcome and unwanted sexual attention which a reasonable person would find offensive.  Victimisation occurs when a person makes a complaint and is thereafter treated less favourably because they have made a complaint.

Employers may be absolved of liability for the discriminatory actions of one their employees, agents or principals if they can demonstrate that they took reasonable steps to prevent the conduct from occurring.  This is why most employers will ask their employees to read and sign policies regarding equal opportunity and discrimination either at the commencement of, or during, the employee’s employment.

Complaints regarding contravention of the Equal Opportunity Act 2010 can be made to the Victorian Equal Opportunity and Human Rights Commission, which can be done either over the phone, online, in person or via post.  Complaints must be brought within twelve months of the alleged conduct otherwise the complaint may be rejected by the Commission.  The Commission has the power to refer parties to dispute resolution, however unlike some jurisdictions this is voluntary and a party may withdraw from dispute resolution.

Complaints regarding workplace discrimination in Victoria can also be made directly to the Victorian Civil and Administrative Tribunal (VCAT) which exercises original jurisdiction in relation to the complaint.  VCAT may also hear a complaint referred to it by the Commission if the dispute resolution processes are unsuccessful and the complainant wishes to proceed with action against the employer.  If there is a finding of unlawful discrimination, VCAT may order that compensation be paid to the aggrieved party, order that the conduct be stopped, or make any other order by way of redress for the discriminatory conduct.

Federal anti-discrimination legislation

The Australian Human Rights Commission (AHRC) has jurisdiction to hear complaints regarding discrimination which contravenes any one of the various federal anti-discrimination laws.  These laws are theAustralian Human Rights Commission Act 1986 , the Sex Discrimination Act 1984, the Racial Discrimination Act 1975, the Age Discrimination Act 2004, and the Disability Discrimination Act 1992.

Complaints must be lodged with the AHRC within 12 months of the alleged conduct otherwise the President may terminate the complaint.  The President may also terminate a complaint if she determines that the conduct was not unlawful, or if it was trivial, lacking in substance or misconceived, vexatious or frivolous.

The AHRC has the power to direct that parties to a complaint attend a conciliation conference with a view to resolving the matter.  In the event that the matter is not settled at conciliation, the AHRC must terminate the complaint and if the complainant wishes to pursue the matter further, he or she is required to bring an application to the Federal Circuit Court within 60 days of the notice of termination of the complaint.

Anti-discrimination provisions under the Fair Work Act 2009

Under section 351 of the Fair Work Act 2009 (FWA) it is unlawful for a national systems employer to take adverse action against an employee on the basis of protected attributes including race, sex, sexual orientation and age.  If an act or conduct is not unlawful under Victorian state legislation then it is not unlawful under the FWA.

There is a strict time limitation within which an employee must bring a complaint to the FWA if the adverse action resulted in the dismissal of the employee, which is 21 days from the date of dismissal.  For any other conduct, the complaint must be brought within one year of the alleged conduct.  The FWA will usually conciliate a complaint, and if it is unsuccessful, will refer the matter to arbitration.  The FWA also has the power to make orders for compensation, declaratory relief or injunctive relief to stop the discrimination from occurring.

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