Taking a dispute to the Victorian Equal Opportunity and Human Rights Commission
Anyone can bring a complaint about discrimination, sexual harassment or victimisation under the Equal Opportunity Act 2010 (Vic) (‘Equal Opportunity Act‘), or about racial or religious vilification under the Racial and Religious Tolerance Act 2001 (Vic) (‘Racial and Religious Tolerance Act‘), to the Victorian Equal Opportunity and Human Rights Commission (VEOHRC) for dispute resolution.
This is a free, impartial and flexible process. Details about how to make a complaint are available from the VEOHRC’s website.
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. A person can also bring a representative complaint on behalf of others. 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 Equal Opportunity Act and the Racial and Religious Tolerance Act, 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 provided by the VEOHRC
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 Equal Opportunity Act.
When a dispute is bought to the VEOHRC, it is assessed to see whether the matter meets the threshold of a possible breach of the law. If accepted for dispute resolution, a complaint 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.
Taking a dispute to VCAT
A person can make an application to VCAT about an alleged contravention of the Equal Opportunity Act or the Racial and Religious Tolerance Act – 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 Equal Opportunity Act or the Racial and Religious Tolerance Act;
- 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 alternative dispute resolution, including mediation or a compulsory conference, and to compel third parties to appear before it and produce documents by issuing a summons.
If you wish 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. VCAT’s website also includes information about mediation and compulsory conferences and preparing for VCAT hearings, and a guide with relevant information to the parties before a hearing.
In VCAT proceedings, 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 to award costs, VCAT considers the case’s particular circumstances.
Other regulatory options under the Equal Opportunity Act
Investigations by the VEOHRC
Under the Equal Opportunity 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 Equal Opportunity 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 Equal Opportunity Act; and
- there are reasonable grounds to suspect that the Act has been contravened; and
- the investigation would advance the objectives of the Equal Opportunity Act.
The VEOHRC may conduct an investigation as it sees fit but is bound by the principles natural justice (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 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 Equal Opportunity Act; or
- referring the matter to VCAT; or
- reporting the matter to the Attorney-General or directly to parliament (s 139).
Under the Equal Opportunity 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:
- Family violence services and accommodation: Complying with the Equal Opportunity Act;
- Trans and gender diverse people in sport: Complying with the Equal Opportunity Act;
- Mental illness: Complying with the Equal Opportunity Act in employment;
- Guideline for general practices: Complying with the Equal Opportunity Act when providing services;
- Transgender people at work: Complying with the Equal Opportunity Act in employment;
- Guideline: Preventing and responding to workplace sexual harassment;
- Guideline for the recruitment industry and employers: Complying with the Equal Opportunity Act in recruitment.
These practice guidelines are available at the VEOHRC’s website.
Section 152 of the Equal Opportunity Act specifies how an organisation can improve its compliance with the Equal Opportunity Act; and how to prepare an organisational action plan to improve compliance. 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).
Intervening in proceedings
The Equal Opportunity Act (s 159) allows the VEOHRC to seek leave to intervene in a matter that involves issues of discrimination, sexual harassment or victimisation. The Equal Opportunity 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 intervention submissions under the Equal Opportunity Act can be viewed on the the VEOHRC’s website.
The Equal Opportunity Act (s 151) also allows the VEOHRC to undertake reviews to ensure compliance with the Equal Opportunity Act. Reviews can only be undertaken on the request of a person. Once a request is made, the VEOHRC can enter into an agreement with that person to review their practices and programs to determine compliance with the Equal Opportunity Act. Information about the VEOHRC’s reviews is on its website.
Other VEOHRC functions
The VEOHRC has other functions that assist with the oversight, prevention and regulation of discrimination, sexual harassment and victimisation under the Equal Opportunity Act.
The VEOHRC can:
- establish and undertake information and education programs in relation to the Equal Opportunity Act, the Charter of Human Rights and Responsibilities Act 2006 (Vic), and the Racial and Religious Tolerance Act;
- promote and advance the objectives of the Equal Opportunity 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 Equal Opportunity Act;
- undertake research into any matter arising from, or incidental to, the operation of the Equal Opportunity 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 the powers necessary to enable it to perform these functions.