Equal Opportunity Workplaces

The legal perspective

The contents of this presentation are for information purposes only and do not constitute legal advice. 

If you have any particular concerns or queries, please contact our office for specific advice.

Disclaimer

Equal opportunity law in Victoria is derived from the following sources:

• Equal Opportunity Act 2010 (Vic)• Racial and Religious Tolerance Act 2001 (Vic)• Charter of Human Rights and Responsibilities Act 2006 (Vic)

In addition, employers and organisations have responsibilities under:

• Occupational Health and Safety Act 2004 (Vic)• Fair Work Act 2009 (Cth)• Workplace Gender Equality Act 2012 (Cth)• Age Discrimination Act 2004 (Cth)• Disability Discrimination Act 1992 (Cth)• Racial Discrimination Act 1975 (Cth)• Sex Discrimination Act 1984 (Cth)

The legal framework

DiscriminationDiscrimination is treating, or proposing to treat, someone unfavourably because of a personal characteristic protected by the law.

The Equal Opportunity Act 2010 protects people from discrimination and harassment when it occurs in an area of public life

DiscriminationDiscrimination is against the law when it occurs in the following areas of public life:

• accommodation• clubs• education• employment• goods and services• land sales and transfers• local government• sport

CharacteristicsVictoriaEqual Opportunity Act 2010

Federal Discrimination Acts

FederalFair Work Act 2009 (Cth)

race (including colour, nationality, ethnicity and ethnic origin)

social origin (in employment only)

race, including colour, descent, national or ethnic origin, immigrant status and racial hatred

race colour national extraction social origin

sex gender identity, lawful

sexual activity and sexual orientation

carer and parental status pregnancy and breastfeeding marital status

sex, including pregnancy, marital or relationship status (including same-sex de facto couples) status, breastfeeding, family responsibilities, sexual harassment, gender identity, intersex status and sexual orientation

sexual preference

sex sexual preference marital status family or carer's

responsibilities pregnancy

age age, covering young people and older people

age

Characteristics (cont’d) disability (including

physical, sensory and intellectual disability, work related injury, medical conditions, and mental, psychological and learning disabilities)

disability, including temporary and permanent disabilities; physical, intellectual, sensory, psychiatric disabilities, diseases or illnesses; medical conditions; work related injuries; past, present and future disabilities; and association with a person with a disability

physical or mental disability

religious belief or activity religion religion physical features employment activity industrial activity

trade union activity

political belief or activity political opinion political opinion personal association with

someone who has, or is assumed to have, one of these personal characteristics.

criminal record,

Discrimination in employmentVictorian Equal Opportunity and Human Rights Commission

• 56 % of all complaints received relate to discrimination in employment• 65% of complaints received relate to discrimination on the basis of disability

Australian Human Rights Commission

• 33% of all complaints received relate to discrimination in employment• 37% of complaints received relate to discrimination on the basis of disability

Fair Work Ombudsman

• 21% of complaints received relate to discrimination on the basis of disability

VEOHRC Complaints in 2013/2014

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Marital

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Parental

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Religious B

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Definition of employment• Equal Opportunity Act 2010 (Vic)

• Employment includes—

(a) employment under a contract of service, whether or not under a federal agreement or award;(b) employment under the Public Administration Act 2004 or under a statutory appointment;(c) engagement under a contract for services;(d) work that is remunerated wholly or partly on commission—

and in Part 6* includes, but does not otherwise in this Act include, work on a voluntary or unpaid basis

* (Part 6 relates to sexual harassment)

Definition of disability• Equal Opportunity Act 2010 (Vic)

• Disability means—

(a) total or partial loss of a bodily function; or(b) the presence in the body of organisms that may cause disease; or(c) total or partial loss of a part of the body; or(d) malfunction of a part of the body, including—(i) a mental or psychological disease or disorder;(ii) a condition or disorder that results in a person learning more slowly than

people who do not have that condition or disorder; or(e) malformation or disfigurement of a part of the body—

and includes a disability that may exist in the future (including because of a genetic predisposition to that disability) and, to avoid doubt, behaviour that is a symptom or manifestation of a disability;

Disability and DiscriminationExamples of Disability:• Physical, such as back injuries,

muscle and joint problems, Multiple sclerosis (MS) and arthritis

• Visual impairment• Commination and hearing

disorders• Mental Health, such a depression

or anxiety, schizophrenia• Intellectual disability• Acquired brain injury

Australian Human Rights Commission, National Disability Forum, Summary of Survey Results – 15 September 2014

Disability Issues in Employment

• The 2009 Australian Bureau of Statistics Survey of Disability, Ageing and Carers reported that:o 1 in 5 people in Australia (18.5 per cent of the population) have one

or more disabilities o there were 2.2 million Australians aged 15-64 years (working-age

population) with disability. This is 15% of the working-age populationo the labour force participation rates for working-age people with

disability was 54%, compared to 83% for working-age people without disability

o the unemployment rate for 15-64 year olds with disability was 7.8%, compared to 5.1% for 15-64 year olds without disability

o people with disability made up 10% per cent of the total Australian workforce.

Disability in the workplace

• With 1 in 5 Australians having a disability and 1 in 3 either having a disability or is likely to be close to someone who has disability, most employers will have to confront managing disability in the workplace

• Employers have a legal obligation to make reasonable adjustments for employees with a disability

• Reasonable Adjustments is defined as:

“an adjustment to be made by a person is a reasonable adjustment unless making the adjustment would impose an unjustifiable hardship on the person”

• Examples:o Flexible working hourso Telephone Typewrite phone access for employees with hearing or speech impairmentso Regular breaks for people with chronic pain or fatigueo Purchasing desks which are adjustable for wheelchairso Adjusting job duties, such as assigning someone to light duties if injured or has

physical disabilities.

Reasonable Adjustments

Exceptions:General: this is related to all areas of the public life, meaning that discrimination

may not be against the law in particular circumstances such as religious exceptions, health and safety and special needsSpecific: only apply to certain areas of public life such as accommodation, clubs, education, employment

Example: school and other education institutions may run programs for students of a particular sex, race or religious belief

Exemptions:Granted on a temporary basisProvide a way for individuals and organisation to legally discriminate in certain

circumstances for a limited period of time

Example: a local council was granted an exemption to close the public swimming pool early two nights a week and limit admission to women only, so Muslim women who

cannot swim in mixed company could use the pool

Exceptions and Exemptions

• Employees are able to pursue complaints regarding discrimination through a variety of means, including:

o Victorian Civil and Administrative Tribunal Human Rights Divisiono Victorian Equal Opportunity and Human Rights Commissiono Australian Human Rights Commission o Fair Work Ombudsman

•Remedies depend on the body dealing with the complaint, but may include:

o Orders to refrain from committing any further contraventionso Payment of damages for both economic and non-economic loss (including hurt and

humiliation, o Payment of aggravated damageso Person doing anything with a view of redressing any loss, damage or injury suffered

(including advertising the finding of discrimination in local newspapers, reinstatement to position, donations to relevant charity)

Legal Consequences

The non-legal consequences of discrimination in the workplace are even more alarming

• Poor staff retention

• Losing the many benefits of employing someone with a disability, including:

o Less turnover for employees with disabilities - reduced costs of hiring, advertising, on-costs, induction and training

o Employing someone with a disability can lead to increased productivity, reduced absenteeism, reduced turnover, increased morale and a more positive workplace culture

o Reduction in workplace injuries – number of OH&S incidents is six times lower and number of workers’ compensation claims is four times lower for employees with a disability

Non-legal Consequences

Recent casesMaxworthy v Shaw [2010] FMCA 1014The Applicant suffered from Crohn's disease and had to wear a colostomy bag. The café in which the Applicant worked unilaterally increased her hours of work, despite her objections that she could not work the increased hours because of her family responsibilities. The increased stress exacerbated the symptoms of the Crohn's disease and the Applicant took sick leave. Whilst the Applicant was on leave, the café owners advertised her position. When the Applicant queried the advertisement with the owners, she was told that she was "unreliable" and "I do not want you working in the business. You have no right working for us running around with that shit bag hanging off you". The Court held that the Respondent had discriminated against the Applicant on the grounds of both her disability and her sex in the course of employment. The Applicant was awarded total damages of $63,394.50 for economic loss, hurt and humiliation and interest. Qantas Airways Ltd v Gama [2008] FCAFC 69 Qantas was held to be vicariously liable for the action of its employees in discriminating against another employee on the basis of his race and disability. He was awarded total damages of. Mr Gama was employed by Qantas for 18 years as a maintenance engineer. Over the years, Mr Gama was injured a number of times at work and made workers’ compensation claims. Qantas terminated his employment in 2002. Prior to termination, Mr Gama‘s colleagues had made comments such as he should be “walking up the stairs like a monkey”, that he looked like a “Bombay taxi driver”, and that he “knew how to manipulate the workers’ compensation system”. The Court found that Mr Gama had been discriminated against on the basis of race and awarded damages of $71,692. Gordon v Commonwealth [2008] FCA 603Mr Gordon was offered employment by the ATO as a GST compliance officer, subject to him being fit for employment. Health testing organised by the ATO showed Mr Gordon had high blood pressure, and the ATO withdrew the offer of employment. The ATO claimed that it was an inherent requirement of the role that the Mr Gordon drive frequently, and that made the role unsuitable for a person with high blood pressure. The Court accepted Mr Gordon's evidence that the his high blood pressure was an anxiety reaction to the health testing, and that any high blood pressure could be stabilised with medication. The Court held that the real reason for the ATO withdrawing the offer of employment was the disability (high blood pressure) imputed to Mr Gordon. Despite there being no actual disability, Mr Gordon was entitled to protection under the DDA and was awarded a total of $121,762 for past economic loss, Centrelink reimbursement, compensation for mental anguish and interest.

Collier v Austin Heath & Ors [2011] VSC 344

The applicant was employed by the Austin Hospital in the food services departmentShe suffered from bipolar disorder however was able to competently carry out the duties of the position

After a promotion to Assistant Manager, the Applicant health worsened due to work pressures and she was admitted into hospital.Liability was accepted by the Hospital and the Applicant was paid weekly compensation.

After each “incident” she was certified fit for work performing suitable duties, however after the second “incident” the Hospital refused to place the Applicant on a suitable return to work program and refused to give her any work.

Her employment was eventually terminated

Case Study

VCAT Decision- Dismissed her complaint as being “misconceived and lacking in substance”- Held that she didn’t meet the discrimination test which “requires a comparison

between the treatment of a complainant and someone without the impairment in the same or similar circumstances”

Supreme Court Decision - held the Tribunal’s decision would of paralysed the operation of the Victorian Equal

Opportunity Act in respect of discrimination on the basis of attributes which are possessed by everybody and left workers without protection

- Decision was set aside and remitted back to VCAT for reconsideration

Case Study continued….

• Familarise yourself and your employees with the legal obligations• Review, update or draft equal opportunity and anti-discrimination policies• Ensure employees and managers receive appropriate training• Treat discrimination complaints seriously, as employees can bypass internal

process and lodge complaints directly to VCAT, Victorian Equal Opportunity and Human Rights Commissioner and Australian Human Rights Commission

• Consider employing someone with a disability

What can you do?

Questions?

Employment Lawyers

Robertson Hyetts Solicitors based in Bendigo, Castlemaine & Melbournewww.robertsonhyetts.com.au

Contact us on 5434 6666 or email our Employment Law team

Jessica Duff, Solicitorjessica.duff@robertsonhyetts.com.au

Andrew Pickles, Directorandrew.pickles@robertsonhyetts.com.au

Equal Opportunity Workplaces

The legal perspective