Disputes about discrimination in Victoria

 

Victorian Equal Opportunity and Human Rights Commission

Bringing a dispute

Any person can bring a dispute about discrimination, sexual harassment or victimisation under the EO Act, or racial or religious vilification under the RRTA, to the Victorian Equal Opportunity and Human Rights Commission (VEOHRC). There is no cost. Details about how to do this are available from the VEOHRC’s website (www.humanrightscommission.vic.gov.au).

A person may bring a dispute in their own name, on behalf of a child, or on behalf of a person who is unable to bring a dispute themselves because of a disability. The VEOHRC needs to be satisfied that the person bringing the dispute has the consent of the relevant complainant to do so.

A person can bring a dispute on behalf of themselves and another person(s) if the VEOHRC is satisfied that:

each person is entitled to bring a dispute;

each person has consented to the dispute being brought to the body on their behalf; and

the alleged contravention arises out of the same conduct (if the dispute is brought on behalf of more than one person).

In addition to satisfying the three points above, a representative body may bring a dispute to the VEOHRC on behalf of a person(s) if the representative body has sufficient interest in the dispute. This requirement is satisfied if the alleged unlawful conduct is a matter of genuine concern to the representative body because of the way conduct of that nature adversely affects the interests of the people it represents (or has the potential to do so). All people who are a party to a dispute brought by a representative body must be named.

For all complaints under the EO Act and the RRTA, the VEOHRC may decline to provide or to continue to provide dispute resolution if:

the alleged contravention occurred more than 12 months before the dispute was brought;

the matter has been adequately dealt with by a court or tribunal;

the matter involves subject matter that would be more appropriately dealt with by a court or tribunal;

a person has initiated proceedings in another forum; and

the VEOHRC considers it is not appropriate to provide or to continue to provide dispute resolution.

Dispute resolution

The principles of dispute resolution (s 112) provided by the VEOHRC are:

dispute resolution should be provided as early as possible;

the type of dispute resolution offered should be appropriate to the nature of the dispute;

the dispute resolution process is fair to all parties;

dispute resolution is voluntary; and

dispute resolution should be consistent with the objectives of the EO Act.

When a dispute is bought to the VEOHRC, the Manager of the Dispute Resolution Unit assesses whether the matter meets the threshold of a possible breach of the law. If accepted for dispute resolution it is allocated to a conciliator to begin the dispute resolution process. A conciliator then contacts the person or representative bringing the dispute and discusses relevant issues being raised in the complaint and explains the dispute resolution process, before contacting the person or parties against whom the dispute has been bought.

A person bringing a dispute to the VEOHRC is encouraged to consider what it is they want as an outcome to the dispute. Examples of outcomes include an apology, a change in procedure or policy, compensation, reasonable adjustments made to a workplace or service, or consideration given to a request for flexible working arrangements.

The dispute resolution process is flexible and adapted to the nature of the dispute. It may proceed by the conciliator communicating separately with the person bringing the dispute and the parties against whom the dispute has been brought. When appropriate, the conciliator may arrange for a more formal conciliation process in which the parties to the dispute meet and negotiate an outcome.

Where the parties agree to settle the dispute, a settlement agreement may be prepared and signed by the parties. A party may request that the VEOHRC prepare a settlement agreement, which must be signed by the parties and certified by the VEOHRC. Alternatively, the parties to the dispute might prepare their own settlement agreement and request that the VEOHRC certify it (s 119).

A signed and certified settlement agreement may be lodged with VCAT for registration (s 120). On registration, the settlement agreement is taken to be an order of VCAT and can be enforced accordingly.

A party to a dispute may withdraw from dispute resolution at any time by informing the VEOHRC. Withdrawal from dispute resolution does not prevent a person making an application to VCAT or commencing proceedings in another jurisdiction.

Applications to VCAT

A person can make an application to VCAT about an alleged contravention of the EO Act or RRTA – this is regardless of whether or not the person has first brought a dispute to the VEOHRC for dispute resolution. No referral from the VEOHRC is required.

VCAT usually requires parties to attend a directions hearing and/or a compulsory case conference or mediation before it considers listing the matter for a full hearing. The directions hearing is where the process for the application is discussed and a timetable is set down for filing documents (such as the particulars of the claim and defence and witness statements).

After VCAT hears a matter, a decision is made as to whether the complaint has been proven or not. Where VCAT finds discrimination, sexual harassment, victimisation, or racial or religious vilification proven, it can make orders that the person or organisation responsible for the unlawful conduct:

refrain from committing any further contravention of the EO Act or RRTA;

pay compensation to the applicant for loss, damage or injury suffered in consequence of the contravention;

do anything specified to redress any loss, damage or injury suffered by the applicant as a result of the contravention.

VCAT can make an order for all or any of the above, or it can decline to take any further action.

Parties may represent themselves, or be represented by a professional advocate (e.g. a lawyer). VCAT has powers to compel parties to attend mediation, and to compel third parties to appear before it and produce documents through the issuing of summons.

It is recommended that a person wishing to make an application to VCAT contact VCAT for further information. VCAT has an online application form for making a complaint of discrimination and a guide to assist people fill out this form. Visit www.vcat.vic.gov.au, click on “Disputes”, then “Equal opportunity”. VCAT’s website also includes information on mediation and preparing for VCAT hearings, and a guide with relevant information to the parties before a hearing.

Costs

In proceedings before VCAT, the starting point is that the parties bear their own costs. However, either party may apply to VCAT for an order that all or part of their costs of the proceedings be paid by the other party if it is fair to do so because of the conduct of the other party. In deciding whether or not to award costs, VCAT considers the circumstances of the particular case.

Other regulatory options under the EO Act

Investigations

Under the EO Act (s 127), the VEOHRC can investigate issues of systemic discrimination on an own-motion basis (i.e. initiated by the VEOHRC). The VEOHRC can investigate any matter relating to the operation of the EO Act, if:

the matter raises a serious issue; and

the matter relates to a class or group of people; and

the matter cannot reasonably be expected to be resolved by dispute resolution or by making an application to VCAT under section 122 of the EO Act; and

there are reasonable grounds to suspect that one or more contraventions of the Act have occurred; and

the investigation would advance the objectives of the EO Act.

The VEOHRC may conduct an investigation as it sees fit, but is bound by the principles of procedural fairness (s 129).

The VEOHRC may request that a party to an investigation provide relevant information (including documents) to the VEOHRC (s 130). Where relevant information is not provided upon request, the VEOHRC can apply to VCAT to compel the information to be produced (s 131). The VEOHRC may also make an application to VCAT to compel the attendance of witnesses at the VEOHRC (s 134).

Following an investigation, the VEOHRC may take any action that it sees fit, including:

entering into an agreement with a person about the action required to comply with the EO Act; or

referring the matter to VCAT; or

reporting the matter to the Attorney-General or directly to parliament (s 139).

Practice guidelines

Under the EO Act (s 148), the VEOHRC can issue practice guidelines on any matter related to equal opportunity law. Practice guidelines are not legally binding but may be taken into account by a court or tribunal (s 149).

The VEOHRC has issued these practice guidelines:

Transgender people and sport: Complying with the EO Act

Mental illness: Complying with the Equal Opportunity Act 2010 (Vic) in employment

Guideline for general practices: Complying with the EO Act when providing services

Transgender people at work: Complying with the EO Act in employment

Sexual harassment: Complying with the EO Act

Guideline for the recruitment industry and employers: Complying with the EO Act (Vic) in recruitment.

These can be downloaded from the VEOHRC’s website (www.humanrightscommission.vic.gov.au).

Actions plans

Section 152 of the EO Act specifies how an organisation can improve its compliance with the EO Act; and how an organisational action plan to improve compliance can be prepared. Equal opportunity action plans may be registered with the VEOHRC, which may provide advice about preparing and implementing action plans, and set minimum requirements for them.

Like guidelines, action plans are not legally binding, but may be considered by a court or tribunal where relevant in proceedings before them.

This provision is similar to action plans to improve accessibility to employment and services for people with a disability, which can be registered with the Australian Human Rights Commission under the Disability Discrimination Act 1992 (Cth).

VEOHRC may intervene in proceedings

The EO Act allows the VEOHRC to seek leave to intervene in a matter that involves issues of discrimination, sexual harassment or victimisation (s 159). The EO Act (s 160) also allows the VEOHRC to seek leave to assist the court or tribunal as amicus curiae (friend of the court) .

The VEOHRC’s legal submissions under the EO Act can be viewed at www.humanrightscommission.vic.gov.au under “Submissions”.

Other VEOHRC functions

The VEOHRC has other functions that assist with the oversight, prevention and regulation of discrimination, sexual harassment and victimisation under the EO Act. The VEOHRC can:

establish and undertake information and education programs in relation to the EO Act, the Charter of Human Rights and Responsibilities Act 2006 (Vic), and the RRTA;

promote and advance the objectives of the EO Act and be an advocate for this Act;

notify the Attorney-General and relevant minister when it becomes aware of any provision of an Act that discriminates, or has the effect of discriminating, against any person;

collect and analyse information and data relevant to the operation of the EO Act;

undertake research into any matter arising from, or incidental to, the operation of the EO Act or that would advance the objectives of the Act; and

submit a report to the Attorney-General on any matter arising from the VEOHRC’s performance of its educative or research functions.

The VEOHRC has all the powers necessary to enable it to perform these functions.