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New Victorian Equal Opportunity Laws commencing August 2011

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From 1 August 2011, the Equal Opportunity Act 2010 (Vic) (“EO Act”) will take effect and apply to all employers in Victoria to replace the existing Equal Opportunity Act 1995 (Vic).

Unlike the existing legislation, the new EO Act introduces positive duties on employers to identify and eliminate discrimination in the workplace.

The objectives of the EO Act are to encourage the identification and elimination of discrimination, sexual harassment and victimisation and their causes. Among other features, the EO Act:

  • Redefines direct and indirect discrimination:
    • Direct discrimination occurs if a person treats, or proposes to treat, a person with an attribute unfavourably because of that attribute.

      It is irrelevant whether or not the attribute is the only or dominant reason for the treatment, provided that it is a substantial reason.

    • Indirect discrimination occurs if a person imposes, or proposes to impose, a requirement, condition or practice that has, or is likely to have, the effect of disadvantaging persons with an attribute; and that is not reasonable.

In both cases, it is irrelevant whether or not that person is aware of the discrimination or considers the treatment to be unfavourable.

  • Prescribes a duty on organisations (including government, business, employers and service providers) to:
    • take reasonable and proportionate measures to eliminate discrimination, sexual harassment and victimisation; and
    • make reasonable adjustments for people with impairments and disabilities.

(“Positive Duties”)

  • Gives the Victorian Equal Opportunity and Human Rights Commission (“VEOHRC”) powers to:
    • resolve disputes relating to alleged discrimination, sexual harassment and victimisation;
    • conduct investigations, including compelling attendance of witnesses, and production of information; and
    • issue compliances notices;
  • Extends protection to volunteers and unpaid workers; and
  • Allows religious bodies an exception to discriminate against people on the basis of sex, marital status, gender identity and sexuality in some circumstances where discrimination is required to conform with religious belief.

Protected attributes

There are seventeen protected attributes under the EO Act:

  • age
  • breastfeeding
  • employment activity
  • gender identity
  • disability
  • industrial activity
  • lawful sexual activity
  • marital status
  • parental status or status as a carer
  • physical features
  • political belief or activity
  • pregnancy
  • race
  • religious belief or activity
  • sex
  • sexual orientation
  • personal association (whether as a relative or otherwise) with a person who is identified by reference to any of the aforementioned attributes.

Complying with Positive Duties

Before undertaking reasonable and proportionate measures to address the Positive Duties under the EO Act, Employers may:

  1. initiate surveys on customer satisfaction;
  2. review complaints made by employees / customers; or
  3. audit the organisation’s existing policies and practices.

Through feedback generated from the above, reasonable and proportionate measures may be taken. In determining whether a measure is reasonable and proportionate, the following factors are considered:

  1. the size of the person’s business or operations
  2. the nature and circumstances of the person’s business or operations
  3. the person’s resources
  4. the person’s business and operational priorities
  5. the practicability and the cost of the measures

Examples of reasonable and proportionate measures taken may range from enhancing accessibility to services for people with impairments or disabilities, increasing cross-cultural awareness in the workplace, or implementing a complaints handling or grievance procedure.

Contravention of the Positive Duties may attract an investigation by VEOHRC.


The EO Act should be considered in light of other anti-discrimination and workplace laws, including the Racial Discrimination Act 1975, Sex Discrimination Act 1984, and the Fair Work Act 2009.

In many cases, breaches of the EO Act will give rise to the implication of liability under other anti-discrimination laws.

In preparation for the EO Act, employers should:

  1. Review and update their existing equal opportunity and anti-discrimination policies;
  2. Ensure that these policies are properly implemented and communicated to staff; and
  3. Undertake reasonable and proportionate measures to meet the Positive Duties under the EO Act.

MST has extensive experience in assisting its clients to comply with the most current anti-discrimination and employment laws. Please contact one of our Workplace Relations lawyers for further information on this topic.

Author: Chao Ni

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