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EQ - July 2004

This edition

New complaint handling processes

The Commission has adopted new, more responsive complaint processes which promise to deliver resolutions in a more tailored way.

The new complaint specific approach has been adopted following a comprehensive review of our complaint handling procedures late last year. The review included extensive consultation with staff, advocates for complainants and respondents and particular groups such as Indigenous people.

The new process has allowed us to move away from our one size fits all, hands off approach to complaint resolution. Instead we now focus on identifying the most appropriate process to deal with the issues of each individual complaint and help people reach a resolution.

When a complaint arrives at the Commission it is assessed on the day it arrives by the most senior complaints staff, who decide the most appropriate way to deal with the complaint.

Complaints vary from complex employment disputes dating back several years to instances of a single denial of service. They may not necessarily require the period of investigation and may differ in their capacity for resolution.

Complaints Manager, Ms Margaret Noall said an early meeting with the complaints officer and discussing resolutions at an early stage demystifies the process and allows people to feel more comfortable and to take greater ownership of the process.

"People feel they have more of a say in resolving their complaint and this creates a sense of partnership in the process," she said.

"This is especially valuable for respondents, who, because the Commission is required to help people lodge complaints, have sometimes felt that the Commission was working for the complainant."

This approach also helps the Commission quickly deal with complaints that lack substance and make it clear to everyone involved (because of their active involvement) why this is the case.

Another aspect of the new process is meeting at the site of the dispute. This allows respondents, complainants and the complaint officer to see, touch and feel the problem or issue. This often results in early acknowledgement of the problem and its resolution. It helps people see the issue from the other person's point of view.

At this stage of the trial it appears:

Some statistics from the trial

Outcome as % of 175 trial files as % of 285 control files
average days open 44 (days) 116 (days)
declined 42 25
closed 113 14 1
resolved in investigation 23 4
resolved in conciliation 8 23
non conciliable 10 38
withdrawn 3 9
Total 100 100

It is expected that the trial will be completed at the end of June 2004. Watch out for further updates in EQ.

Farewell to Chief Executive

Caption: Dr. Diane Sisely, Chief Executive, Equal Opportunity Commission Victoria After 10 years as Chief Executive and Chief Conciliator Dr. Diane Sisely will be leaving the Commission on 30 June 2004.

Diane was appointed to the Commission in July 1994. Prior to this she held positions in the government and non-government sector primarily concerned with policy and program evaluation for services to families and children across Victoria. This included positions in the Home and Community Care program and the Department of Transport.

When Diane joined the Commission she found an under resourced organisation with a backlog of complaints, a lot of angry complainants and employers and an expectation in the community that the Commission wouldn't survive.

In the ensuing 10 years Diane turned the Commission around and it is now seen as a leader in the development of equal opportunity and human rights. There is no backlog of complaints and 70% of complaints are dealt with in under 3 months.

Diane oversaw the introduction of the new Equal Opportunity Act - which expanded the number of attributes protected by the legislation and secured the future of the Commission.

Other major achievements include:

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Caption: Ms Fiona Smith, Chairperson, Equal Opportunity Commission Victoria

New directions for Human Rights in Victoria

Last month the Victorian Attorney General, Rob Hulls, released a Justice Statement outlining directions for his portfolio for the next five to 10 years. It sets out a framework for modernising justice and protecting rights and addressing disadvantage.

The Commission welcomes the commitment made under the Justice Statement to promoting human rights and reducing systemic discrimination.

Our experience is that discrimination is likely to persist if it continues to only be addressed on an individual complaint basis. During consultation about the Justice Statement the Commission emphasised the importance of pro-active approaches to eliminating discrimination given the following:

The Victorian Government has undertaken to establish a process of discussion and consultation with the Victorian community on how human rights and obligations can best be protected in Victoria. In relation to Victoria's anti-discrimination laws, the following strategies have been identified as subjects for consultation:

The Commission looks forward to being involved in the implementation of the new directions identified in the Justice Statement.

What's new

Equal pay is a family issue

On International Women's Day, March 8 the Commission began a public awareness campaign on equal pay featuring postcards with the provocative slogan "Prepare your daughter for working life. Give her less pocket money than your son".

The campaign immediately captured a great deal of attention and so far more than 25,000 cards and dozens of posters have been distributed.

In launching the campaign, Commission Chief Executive, Dr. Diane Sisely said unequal pay was an insidious form of sex discrimination that required top level commitment from government, unions and business to stamp it out.

In late March, the State Government announced an enquiry into equal pay. The Commission will play a key role in the enquiry.

In 1969, the Commonwealth Conciliation and Arbitration Commission ruled that by 1972 Australian women should receive equal pay to men for equal work. Thirty years later in 2002 Victorian women earned 13% less than men. We have well and truly missed the deadline and given the rate of increase it will be another 50 years before we achieve equality. In fact we might even be going backwards with the latest figures from the Australian Bureau of Statistics putting the pay gap at 15%.

Dr Sisely said unequal pay is a family issue because it prevents women from succeeding at work and discouraged men from taking a greater role in childrearing.

"Increasingly we hear men argue for a greater work/life balance but the lack of affordable childcare combined with the pay gap forces most families to forfeit the earnings of the lower paid mother," she said.

"If we had equal pay, more men could spend time with their children without losing out financially.

"We will never achieve work and family balance until we have equal pay."

Unequal pay is largely hidden because of the taboo around discussing money and earnings. A recent survey by a recruitment agency found that 76% of participants believed transparency of pay scales would help close the pay gap. Government and business could look at strategies used overseas such as equal pay audits and greater transparency in pay rates as ways to expose unequal pay as a first step in eliminating it from workplaces.

For more information about our Equal Pay campaign visit our website www.eoc.vic.gov.au. To order postcards and posters contact Peter Fotiadis on (03) 9281 7111

Play by The Rules: making sport fun, fair and safe

Participation in sport and recreation should be fun, fair and safe for everyone.

The Commission and Sport and Recreation Victoria are about to launch an important and very timely new resource in Victoria called Play by the Rules. Play by the Rules is an interactive website designed to help sporting associations and clubs ensure their sports are fair, safe and fun. This new resource was originally developed by the Equal Opportunity Commission of South Australia and has been endorsed by the Australian Sports Commission as part of its Harassment-Free Sport Strategy.

The availability of these materials in Victoria could not have come at a better time. Sporting organisations have always been concerned about club development, member protection and risk management, but recent media stories have heightened our focus on issues related to harassment and assault, spectator behaviour, sports rage and access to single-sex and mixed competitions in junior sport, to name just a few topical issues. Play by the Rules will help sports and community clubs address such issues in a practical, informed and systematic way.

The website is an Australian first and includes practical and accessible information on legislation, resources, sample policies, model codes of practice and frequently asked questions. However, the most innovative part of Play by the Rules is the on-line training courses specifically designed for coaches, officials, administrators and participants. These courses are free and can be completed in your own time and those who complete the courses receive an official certificate.

If you want to know more about Play by the Rules come along to one of the Commission's free Play by the Rules half-day workshops on 12 and 13 October, 2004. Contact Community Programs Co-ordinator, Peter Gourlay on 92817127 for a registration form.

To visit the Play by the Rules website go to www.playbytherules.net.au

Legal update

State of Victoria v Schou

Background

Deborah Schou is a parent with two children and worked as a sub-editor by the Hansard Department for the State of Victoria. The younger child had health problems which impacted on Ms Schou's capacity to work full time on-site. Ms Schou made a request to work from home for part of the working week and asked her employer to install a fax machine and modem to accommodate this arrangement. This was never done and eventually Ms Schou resigned and lodged a complaint with the Commission of indirect discrimination based on her status as a parent and carer. The Victorian Civil and Administrative Appeals Tribunal (VCAT) found that Ms Schou had been discriminated against. The employer appealed the Tribunal's decision to the Supreme Court. The appeal was upheld and the case was sent back to the VCAT for re-hearing. The Tribunal reheard the case and Ms Schou's complaint was again upheld. The employer appealed the decision to the Court of Appeal.

Court of Appeal decision

The Court of Appeal ultimately decided there was no discrimination by Ms Schou's employer as the requirement that she work on-site was not unreasonable.

Implications of the decision

This is an incredibly important decision for at least two reasons. Firstly, the Court of Appeal's decision (plus the earlier Supreme Court decision by Justice Harper) provide very clear direction regarding how to approach analysing and determining whether particular scenarios involve a breach of the indirect discrimination provisions of the Equal Opportunity Act 1995 (Vic). These directions apply generally to complaints of indirect discrimination on the basis of any protected personal characteristic.

The Schou decisions also provide important guidance in relation to specific issues related to flexible working arrangements. In particular the Court has been quite clear in its view that when considering complaints relating to a failure to provide flexible work arrangements, the work requirements being challenged must themselves be shown to be unreasonable.

The Commission is currently reviewing the Schou decision to more specifically identify its implications for indirect discrimination complaints generally, as well as the particular issues that arise for matters relating to flexible working arrangements. This will be the subject of a more detailed article in the next edition of EQ.

Submission to VCAT in relation to single sex sporting competitions

In February 2004 Justice Stuart Morris, President of the Victorian Civil and Administrative Tribunal (VCAT), handed down his decision in Taylor and ors v. Moorabbin Saints Junior Football League and Football Victoria Limited . The high profile case involved teenage girls who were prevented from playing football with boys because they were older than 12 years. The central issue in this case involved the interpretation of the exception contained in section 66 of the Equal Opportunity Act 1995 (Vic) (The Act). Under this exception, single-sex sporting competitions are lawful where the participants are older than 12, and it can be shown that the strength, stamina or physique of competitors is relevant.

In this case, the Moorabbin League and Football Victoria argued that section 66 of The Act meant the exclusion of girls older than 12 years from competitive football was lawful because in the game of football the strength stamina and physique of competitors is relevant. Justice Morris conducted an extensive review of the interpretation of section 66 of The Act, as well as evidence relating to the physical differences between boys and girls of different ages. Justice Morris made two key determinations, not just in relation to football, but sport generally:

  1. In order to be relevant, the relative strength, stamina and physique of boys and girls must be significantly different.
  2. Relative differences in the strength, stamina and physique of boys and girls are not significantly different in children younger than 14 years.

As a consequence of this decision, single-sex sporting competitions for age groups up to and including under-14's are not covered by the exception in section 66 of The Act. So unless an organiser has a specific exemption from The Act, the exclusion of an under-14 girl or boy from a sporting competition on the basis of their sex would amount to unlawful discrimination.

Justice Morris was concerned about how this may affect the level of participation of young girls in sport, and called for public submissions on whether or not VCAT should exercise its discretion to grant an exemption to permit girls-only sporting competitions for the over 12 to under 14 age groups. The Commission made a detailed submission to VCAT on this matter welcoming both the substantive decision in Taylor's case, as well as the decision to open the issue of an exemption for public comment and input.

The Commission's view however, was that a general exemption of the type being considered should not be granted, and instead, the concerns underlying this matter should be considered through a case-by-case scrutiny of separate applications by relevant organising bodies. The Commission further submitted that this process should involve consideration of the following specific questions:

A full copy of the Commission's submission is available on-line - www.eoc.vic.gov.au.

Roundup

Human Rights and Australian Values

The Commission is holding a series of forums during 2004 which will discuss Human Rights: Values, Freedom and the Australian Way of Life. The first in the series was held on March 24 as part of the International Day of the Elimination of Racial Discrimination and was titled Multiculturalism: Is it a big mistake? About 200 people attended the forum at the Melbourne Town Hall. Speakers at the forum were: Professor Bob Birrell, Director of the Centre for Population and Urban Research at Monash University, Pino Migliorino from Cultural Perspectives, David Chalke from AustraliaSCAN and Dur-e Dara, business woman and Convenor of the Victorian Womens Trust.

Following the formal presentations there was lively discussion between the speakers and members of the audience about the merits of our multicultural community. A full transcript of the presentations can be found on-line - www.eoc.vic.gov.au.

The next forum is titled Human Rights and Indigenous Victorians, Recognition and Reconciliation and will be held on July 14 at the Melbourne Town Hall. Guest speakers are Mick Dodson, Chair of the Australian Institute of Aboriginal and Torres Strait Islander Studies, Ann McGrath, Professor of Indigenous Studies at the Australian National University and Linda Burney, MP the first Indigenous woman in the NSW Parliament. This is a free event and bookings can be made by contacting Thien Bui on 9281 7106 or email thien.bui@eoc.vic.gov.au.

The Commission goes country: Latrobe Valley Rights Centre

Caption five: Peter Gourlay, Community Programs Co-ordinator, addresses the forum.

The Commission has an innovative presence in the Latrobe Valley - The Latrobe Valley Rights Centre. The Centre is quickly becoming the first point of contact for Latrobe Valley residents, not only for the Commission but also the Office of the Public Advocate and the Dispute Settlement Centre Victoria.

The Centre provides a unique outreach, information and referral service. It raises community awareness of equal opportunity rights and responsibilities, the rights of people with a disability and educate the community in dispute resolution. It is a Victorian first, emphasising access to justice and piloting new models of regional service delivery.

On the first Thursday of each month, a Complaint Officer from the Commission visits the Rights Centre at 53-55 Buckley Street, Morwell, to discuss and provide information on equal opportunity matters including discrimination, sexual harassment, racial and religious vilification and the Commission's complaint resolution service. The officer is also able to help people make and lodge complaints where appropriate.

The Centre also regularly conducts community education sessions on equal opportunity rights and the role of the Commission. Last May it hosted a major community conference titled 'Seeking Equality, Empowerment and Dispute Resolution'. Commission Community Programs Co-ordinator Peter Gourlay facilitated two workshops as part of the day and Chief Executive Dr Diane Sisely provided the keynote address.

For more information or to make an appointment in Morwell, contact the Latrobe Valley Rights Centre 5133 9998.

News from the Australian Council of Human Rights Agencies

The Australian Council of Human Rights Agencies (ACHRA) was established last year and is comprised of State and Territory Equal Opportunity Commissioners from around Australia. The members of ACHRA work together to progress human rights and equal opportunity across the country. ACHRA also speaks out on issues which threaten equal opportunity and human rights principles. In recent months ACHRA has issued media statements opposing the proposal to amend the Federal Sex Discrimination Act and supporting the Human Rights and Equal Opportunity Commission's report on children in immigration Detention Centres.

ACHRA and the Sex Discrimination Act

In March ACHRA called on the Federal Government to withdraw its proposal to amend the Sex Discrimination Act (SDA) to allow teacher training scholarships to be provided to men only.

The proposed amendment was in response to concerns that there were not enough male teachers in primary schools and that this had a negative impact on learning outcomes for boys.

ACHRA believes that changing the legislation is the wrong way to address a shortage of male teachers. Exemptions from anti-discrimination legislation are intended to overcome the effects of past discrimination so that people can compete on a level playing field.

There is no evidence that men aren't becoming teachers because of discrimination or that the cost of teacher training prevents men from entering the profession. ACHRA believes that giving men a free ticket into teaching will simply further entrench the disadvantage already faced by female teachers who never make it out of the classroom to senior positions or as principals.

In a media statement ACHRA Chair, Dr Diane Sisely pointed to the fact that despite the disparity between the numbers of male and female teachers in primary schools, men still earn on average 12% more than women in the education sector.

She said that if the Government were to start offering incentives to men to enter professions in which they are under represented then the Federal Government would have to do the same for women who are under represented in a range of professions such as engineering, information technology, local government and on company boards.

"The reality is that there are many reasons why there is an imbalance in the gender of teachers in primary schools and to amend the SDA would do nothing to tackle the real causes of the imbalance," she said.

Issues such as working conditions, salaries and career structures figure much higher in the decision of men not to enter the teaching profession. The fundamental principle of the SDA is to ensure equal opportunity between the sexes. The proposed amendments to the SDA would undermine this principle.

New brochures, new look

Late last year, the Commission conducted a series of focus groups to evaluate the effectiveness of our brochures. The participants were asked to evaluate the brochures in terms of their general appeal, design, readability, and ease of understanding. As a result of the focus group responses, we have embarked on a revamp of our public information material.

There is now a new general brochure (Your right to a fair go: Discrimination, sexual harassment and racial and religious vilification) which tells people who we are and what we do as well as outlining basic information about equal opportunity and racial and religious vilification laws. There is also a handy step by step section on dealing with discrimination.

Our three brochures detailing the complaints resolution process have been condensed into one new brochure (Your right to a fair go: Resolving complaints of discrimination, harassment and vilification). This brochure explains how complaints may be handled at the Commission and includes information on conciliation, resolution and why a complaint may be declined.

Later this year we will be adding a brochure on racial and religious vilification.

To order brochures please contact the Commission on (03) 9281 7122

Discrimination against people with hepatitis C - risky business

The focus was on discrimination during the Hepatitis C Council of Victoria's Awareness Week held in March this year. During the week the Commission worked closely with the Hepatitis C Council to raise awareness in the community that discrimination against people with Hepatitis C breached the Equal Opportunity Act and could lead to a complaint of discrimination.

Discrimination stigmatises people and prevents them from fully participating in life. It adds to the burden that people with Hepatitis C already carry as a result of their illness.

The Commission does not get many complaints of discrimination from people with Hepatitis C but we know from the Hepatitis C Council that discrimination is widespread. The low numbers of complaints from people with Hepatitis C is likely to be because people are not aware of their rights under Equal Opportunity laws or perhaps they are reluctant to come forward for fear of reprisals. This not uncommon.

Hepatitis C is covered by the Equal Opportunity Act provisions under impairment/disability. This means that it is against the law to discriminate against someone with Hepatitis C, in employment, accommodation, education, clubs, sport and the provisions of goods and services.

For example it is against the law for an employer to refuse someone a job or for a sporting organisation to prevent someone from playing a team sport because they have Hepatitis C. It is more sensible and fairer to all for employers and providers of goods and services to ensure safe work practices to prevent the transmission of diseases in general rather than exclude a person because they have Hepatitis C.

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