Workplace Discrimination in Victoria

In Victoria, there is both state and federal legislation that applies to people facing workplace discrimination. This means that a person facing discrimination in the workplace may have several options for taking legal action. This page deals with workplace discrimination in Victoria.

What is workplace discrimination?

Discrimination is defined as the less favourable treatment of a person who possesses a protected attribute than a person who does not have that protected attribute under comparable circumstances. 

The less favourable treatment must occur because of the protected attribute. However, the protected attribute does not have to be the sole reason for the less favourable treatment.

Under section 6 of the Equal Opportunity Act 2010, protected attributes include age, sex, gender, disability, lawful sexual activity, marital status, pregnancy, race, religious belief, sexual orientation or trade or occupation.

Under section 351 of the Fair Work Act 2009, the list of protected attributes is similar but not exactly the same.

Victorian anti-discrimination legislation

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 when:

• deciding who should be offered employment
• deciding the arrangements of employment
• deciding who should be a partner or principal of a firm
• deciding a number of other employment-related matters.

The Act not only prohibits workplace discrimination in Victoria, but also sexual harassment, victimisation and vilification. 

Employer must take reasonable steps to avoid discrimination

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

Applying to the Equal Opportunity Commission

Complaints regarding contraventions of the Equal Opportunity Act 2010 can be made to the Victorian Equal Opportunity and Human Rights Commission. This can be done either over the phone, online, in person or via post. 

The Commission has the power to refer parties to dispute resolution; however, unlike in some jurisdictions, this is voluntary and a party may withdraw from dispute resolution if they choose.

Complaints regarding workplace discrimination in Victoria can also be made directly to the Victorian Civil and Administrative Tribunal (VCAT).

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 the action against the employer. If there is a finding of unlawful discrimination, VCAT may order that compensation be paid to the aggrieved party, that the conduct be stopped, or make any other order to redress the discriminatory conduct.

Complaints must be brought within twelve months of the alleged conduct.

Federal anti-discrimination legislation

The Australian Human Rights Commission (AHRC) has jurisdiction to hear complaints regarding discrimination that contravenes federal anti-discrimination laws.  These laws are the Australian 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 to the AHRC must be made within 12 months of the alleged discriminatory conduct. They may be terminated if the conduct was not unlawful, or if the complaint is 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. If the matter is not settled at conciliation, the AHRC must terminate the complaint.

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. 

Complaints about unfair dismissal under the FWA must be made within 21 days of the date of dismissal. Complaints about any other conduct under the FWA must be brought within one year of the alleged conduct. 

The FWA will usually conciliate a complaint, and if this is unsuccessful, 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.

If you require legal advice or representation in any legal matter, please contact Go To Court Lawyers.