Equal opportunity is about more than just fixing issues as they arise. True equal opportunity means creating an environment where unfair treatment and problem behaviour is unlikely to happen in the first place. Under the Equal Opportunity Act 2010, organisations have a positive duty to eliminate discrimination, sexual harassment and victimisation as far as possible. This means that positive action should be taken to prevent these behaviours - regardless of whether someone has made a complaint.
Who does the positive duty apply to?
The positive duty applies to everyone who already has responsibilities under the Equal Opportunity Act. This includes:
- providers of accommodation, education, or goods and services
- clubs and sporting organisations.
What is the positive duty?
Victoria is unique in having a positive duty, which creates an opportunity to prevent unlawful behaviour. It helps organisations put a healthy workplace culture in place, just as occupational health and safety laws require employers to take appropriate steps to ensure injuries don’t occur.
Set out below are the six minimum standards that all organisations must follow in order to comply with the positive duty under the Equal Opportunity Act. The standards require actions to be taken to both prevent and respond to discrimination, sexual harassment and victimisation.
Reasonable and proportionate measures
In describing the positive duty, the Act calls for “reasonable and proportionate measures to eliminate … discrimination, sexual harassment or victimisation as far as possible.”
While every duty holder in Victoria must comply with the minimum standards, the specific measures or actions required of organisations will vary according to the size of the organisation and the resources available. Bigger organisations will be expected to do more than smaller ones.
Factors that must be considered include the:
- size of the business or organisation
- resources and budget available
- nature of the business and its operational priorities
- the cost of the measures and whether they can actually be put into place effectively.
This means there can be some flexibility in the measures taken to meet the positive duty. Smaller organisations with fewer resources can still undertake a range of practical measures to eliminate discrimination.
Examples of the positive duty
How can my organisation meet its positive duty?
The Commission has identified six minimum standards that organisations must meet to comply with their positive duty to eliminate discrimination, sexual harassment and victimisation.
Standard 1: Knowledge
Organisations understand their obligations under the Equal Opportunity Act and have up-to-date knowledge about discrimination, sexual harassment and victimisation. This may involve:
- familiarising yourself with the Equal Opportunity Act to understand what behaviour constitutes discrimination, sexual harassment and victimisation and what your obligations are
- ensuring leaders, managers, contact officers and human resource staff understand their responsibilities, including through formal and information education and training
- gathering relevant information about your organisation’s culture, processes and systems. Look at your policies, programs, practices and procedures (written or unwritten).
- considering who you interact with and the functions of your organisation. Who do your activities affect? Consult with internal and external stakeholders.
- thinking about whether there is evidence of systemic discrimination or ‘intersectional’ discrimination because of multiple protected characteristics, for example, race and disability?
Standard 2: Prevention plan
Discrimination, sexual harassment and victimisation are prevented through the development and implementation of an effective prevention plan. The plan should outline the legal requirements for equal opportunity in any service delivery by the organisation, in addition to a policy that covers the workplace and conduct of the employer and employees. The planning process may involve:
- analysing your information and identify any areas of weakness, key issues and priorities.
- developing and documenting your plan of action. Take an approach that is relevant to your size, resources and functions.
- outlining the objectives you will commit to in order to prevent discrimination, sexual harassment and victimisation.
- consulting with staff and their representatives as well as affected members of the local community to help identify realistic and appropriate measures to eliminate discrimination
- developing or updating policies and change practices aimed at preventing discrimination, sexual harassment, victimisation and vilification, and effective mechanisms to review and improve the policies.
- determining how the plan will be communicated and made available to staff and consumers.
- anticipating and planning for resistance to the prevention plan.
Standard 3: Organisational capability
Leaders drive a culture of respect by building organisational capability. This may involve:
- formal and informal training and education initiatives to ensure all staff understand their rights and responsibilities under the law and support organisations to communicate policies and procedures and expectations of appropriate behaviour from their co-workers or peers and third parties, including customers and convey information about related policies and processes.
- Ensuring clients and consumers know their right to receive a non-discriminatory and inclusive service, and communicate the equal opportunity in service delivery policy to them.
- Leaders, including managers and supervisors, being required to role model respectful behaviour, for instance through codes of conduct or performance review processes.
- Encouraging and supporting bystanders to act safely to respond to discrimination, sexual harassment and victimisation.
holding people to account for unlawful workplace behaviour in a fair, consistent, and timely manner.
Standard 4: Risk management
Organisations have built a culture of safety and address risk regularly. This may include:
- organisations regularly identifying and assessing risk factors for discrimination, sexual harassment and victimisation, including by seeking direct feedback from staff and clients.
- risk assessments identifying the likelihood of different forms of discrimination, sexual harassment and victimisation occurring and the potential harm that would flow to staff and clients if the risk were realised.
- organisations recognising that some staff and clients are more vulnerable to discrimination, sexual harassment and victimisation than others.
- taking steps to eliminate or control workplace risk factors.
Standard 5: Reporting and response
Discrimination, sexual harassment and victimisation are addressed consistently and confidentially to hold perpetrators to account and responses put the victim/survivor at the centre. This may include:
- in consultation with staff and clients, organisations developing a fair and confidential reporting and complaints procedure with safe and accessible options for raising and resolving concerns, that prioritises the complainants’ wellbeing.
- organisations ensuring workers and consumers know how and where to make a complaint or report and are supported to do so.
- any complaints that do arise being dealt with promptly and effectively.
- organisations ensuring workers and clients/consumers are safe and supported throughout the complaints process, including through identifying and avoiding victimisation.
Standard 6: Monitoring and evaluation
Outcomes and strategies are regularly reviewed and evaluated for continuous improvement. This may include:
- regularly monitoring workplace culture, service delivery, any complaints received and employee knowledge of legal obligations in order to improve compliance and deal promptly with any issues that arise.
- regularly reviewing and updating prevention plans with the input of workers and their representatives, consumers, stakeholders.
- organisations being open and transparent with workers, consumers and stakeholders on trends and lessons relating to measures to eliminate discrimination, sexual harassment and victimisation.
- for larger organisations, monitoring and adapting should be part of the normal business planning cycle.
Standards 1–4 are directed towards prevention – that is, stopping discrimination, sexual harassment and victimisation from happening in the first place.
Standards 5–6 are about responding to instances of discrimination, sexual harassment and victimisation – by creating robust reporting and complaint procedures and establishing monitoring and evaluation processes. Setting up an effective and transparent response framework also demonstrates that breaches of the Equal Opportunity Act will not be tolerated and can help prevent such conduct from happening in the first place.
While these are the essential standards that all Victorian organisations must meet, the way in which each organisation chooses to implement these requirements will vary depending on the size, resources and nature of their organisation. For example, how a small, building business implements the positive duty might be very different to how a medium, suburban accounting firm, a regional TAFE or a large corporation does.
Can someone make a complaint about an organisation that is not meeting its positive duty?
The Commission encourages people to let us know of any serious issues that affect a group of people, as we may decide to investigate the matter further and offer support to the organisation.
A person may report to the Commission by contacting our complaints/inquiry service.
The Commission may also investigate systemic issues of discrimination, sexual harassment and victimisation where the matter:
- raises an issue that is serious in nature, and
- relates to a class or group of persons, and
- cannot reasonably be expected to be resolved by a dispute resolution or an application to the Victorian Civil and Administrative Tribunal, and
- there are reasonable grounds to suspect that one or more contraventions of the Equal Opportunity Act have occurred.
When undertaking an investigation, the Commission will assess compliance with the Equal Opportunity Act and whether an organisation has complied with their positive duty, with reference to the six minimum standards for organisations. As part of this investigation function the Commission can apply to the Victorian Civil and Administrative Tribunal for an order requiring a person to provide information or documents.
What is the Commission's role in helping with the positive duty?
The positive duty encourages organisations to work with the Commission before any complaints are made.
We provide assistance in a number of ways, including:
- promoting awareness about the law and good practice
- delivering tailored education and training, which can be specific to your organisation
- working in partnership with organisations to encourage and support good practice, and develop action plans
- reviewing policies and practices to give guidance
- providing a free dispute resolution service
- monitoring and enforcement.
You can contact us for more information about the positive duty or to discuss any aspects of your organisation’s equal opportunity plans.