Resolving disputes

Contributed by The Victorian Equal Opportunity and Human Rights Commission and current to 24 March 2023

Part 8 of the Equal Opportunity Act 2010 sets out the process for resolving disputes about discrimination, sexual harassment and victimisation.

A dispute means 'a dispute about compliance with this Act', outlined in section 4. This broad definition means the Victorian Equal Opportunity and Human Rights Commission (the Commission) has the power to deal with any issue where a party alleges the other party has breached the Equal Opportunity Act or Racial and Religious Tolerance Act 2001 (Vic) (RRTA). An actual breach need not have occurred, and the Commission has no role in determining whether there has been a breach of either Act.

The dispute resolution procedures under the Equal Opportunity Act also apply to disputes under the RRTA, outlined in section 22 of that Act. However, the RRTA includes some provisions that are specific to disputes under that Act. The chapter on Racial and religious vilification includes further information about disputes under the RRTA (including examples of conciliated complaints)

Dispute resolution at the Commission

The Equal Opportunity Act enables the Commission to offer services designed to facilitate resolution of disputes. This can be through the provision of general information and education to duty holders and people with disputes at the initial stages, or through the process of dispute resolution at the Commission. It also allows people with disputes to go directly to the Victorian Civil and Administrative Tribunal (VCAT) to have their matter determined, without first going through the Commission's dispute resolution process. If a dispute does not resolve at the Commission, a party may still withdraw from dispute resolution and apply to have the matter heard by VCAT

The Commission offers flexible, independent and confidential services to help parties resolve disputes. The Equal Opportunity Act gives the Commission the discretion to use a wide variety of methods to resolve the dispute that are appropriate to the nature of the dispute. Dispute resolution methods used range from informal discussions and providing education and information about the Equal Opportunity Act and the RRTA, through to conciliation. Conciliation can take place in a face-to-face meeting, via video conference, by telephone conference or by contact through the conciliator.

Under the Equal Opportunity Act, a party to a dispute may withdraw from the Commission's process at any stage and may take the dispute to VCAT for determination. Parties to a dispute do not need to request the Commission refer their matter to VCAT. For matters taken to VCAT, VCAT has the power to order compulsory conferences and mediation, and to strike out claims in certain circumstances.

Bringing a dispute to the Commission

Under section 113 any of the following people may bring a dispute under the Equal Opportunity Act to the Commission for dispute resolution:

• a person who claims another person has discriminated, sexually harassed or victimised them
• if that person cannot bring a dispute because of a disability – a person who is authorised to do so on their behalf or (if that person is unable to authorise another person) any other person
• if that person is a child – the child, a parent on the child's behalf, or (if the Commission is satisfied the child consents) any other person.

The chapter on Racial and religious vilification outlines who can bring a dispute to the Commission for an alleged breach of the RRTA.

Dispute resolution process

The process for dispute resolution can be summarised as follows:

• a person may bring a dispute to the Commission alleging unlawful discrimination, sexual harassment or victimisation under the Equal Opportunity Act, or racial or religious vilification under the RRTA. Complaints are lodged in writing – either online or by mail. The Commission can help persons who are not able to submit their complaint in writing
• dispute resolution starts when the person bringing the dispute informs the Commission that they wish to proceed with dispute resolution (section 115(1))
• dispute resolution ends when the earliest of the following occurs:
  • the Commission declines to provide or continue to provide dispute resolution under section 116
  • a party withdraws from dispute resolution under section 118 by providing the Commission with verbal or written notice
  • the parties to the dispute reach agreement about the dispute (section 115(2))
• a party may make an application to VCAT about a breach of the Equal Opportunity Act or RRTA whether or not the person has brought a dispute to the Commission (section 122).

Representative complaints to the Commission

Section 114(1)(a) of the Equal Opportunity Act provides that a representative body may bring a dispute to the Commission on behalf of a named person or persons if the Commission is satisfied:

• each person is entitled to bring a dispute to the Commission under section 113(1)(a) as a person who claims that another person has contravened a provision in Part 4, 6 or 7 of the Equal Opportunity Act in relation to them
• each person has consented to the dispute being brought by the body on the person's behalf.

The representative body must have a sufficient interest in the dispute (section 114(1)(b)); and if the dispute is brought on behalf of more than one person, the alleged contravention must arise out of the same conduct (section 114(1)(c)). An example of a representative complaint is a disability service bringing a complaint on behalf of a client who has experienced discrimination.

Section 114 is based on sections 104(1B) and (1C) of the 1995 Act and is intended to work in the same way as those provisions did under the 1995 Act, according to the Explanatory Memorandum of the Equal Opportunity Bill 2010 (page 52). Representative complaints were introduced into the 1995 Act in 2006 with a view to replicating the representative complaints mechanism in the RRTA, as outlined in the Explanatory Memorandum of the Justice Legislation (Further Amendment) Bill 2006 (page 10)

Representative complaints and who can be a representative body are discussed further below.

The chapter on Racial and religious vilification discusses representative complaints under the RRTA in more detail.

Discretion to decline to provide or continue to provide dispute resolution

Section 116 provides the Commission with discretion to decline to provide or continue to provide dispute resolution for any of the following reasons:

• the alleged contravention occurred more than 12 months before the dispute was lodged with the Commission
• the matter has been adequately dealt with by another court or tribunal
• the matter involves a subject matter that would be more appropriately dealt with by a court or tribunal (for example sexual assault)
• the person has started proceedings in another forum (for example the Australian Human Rights Commission or Fair Work Commission)
• having regard to all the circumstances, it is not appropriate to provide or continue to provide dispute resolution.

Factors that may be relevant to consideration of 'all the circumstances' in section 116(e) include whether:

• the Commission has previously provided dispute resolution services in relation to the allegations
• the Commission has previously declined to provide dispute resolution services in relation to the allegations
• the respondent is unable to engage with, or respond to, the complaint (for example the organisation or respondent has moved or cannot be contacted, or there is no evidence to support the claim)
• contact has been lost with the parties
• attempts to conciliate have been unsuccessful.

If the Commission declines to offer dispute resolution, it must provide all parties to the dispute with sufficient reasons for its decision.

Withdrawing from a dispute

Under section 112(d) dispute resolution at the Commission is voluntary and parties may withdraw from the process at any time by informing the Commission in writing, as outlined in section 118(1). Under section 118 withdrawal from dispute resolution does not prevent a person from applying to VCAT under the Equal Opportunity Act or commencing proceedings in another jurisdiction. However, as at February 2012, a person cannot lodge a complaint with the Australian Human Rights Commission about a matter that is the subject of dispute resolution under the Equal Opportunity Act.

Secrecy

Under It is unlawful for any employee or board member of the Commission, or the Commissioner, to disclose, communicate or make a record of any information that concerns the affairs of any person, where that information was provided to the Commission for a purpose under the Equal Opportunity Act. To do so is an offence under section 176(3) of the Equal Opportunity Act.

This provision aims to ensure information provided to the Commission is kept confidential, with a view to achieving outcomes in difficult and complex cases where confidentiality is important.

Some limited exceptions to the secrecy provision are set out in section 176A and section 177 of the Equal Opportunity Act. Broadly speaking, these exceptions allow a Commission staff member to disclose information where:

• it is necessary to do so when carrying out another function under the Act
• where information relates to disputes, complaints or investigations and is made for educative purposes or is otherwise consistent with the Commissions obligations. The Commission may use statistics about complaints to inform the public about the prevalence of discrimination, for example (section 177)
• parties consent to certain information being released (section 176A(2))
• disclosure of information is required by a Court in a criminal proceeding – for example a sexual assault (section 176A(1)).

Admissibility of dispute resolution information

Evidence of anything said or done in the course of dispute resolution is inadmissible in proceedings before VCAT, or any other legal proceedings, as outlined at section 117.

The dispute resolution process starts when a person informs the Commission that they wish to proceed with dispute resolution. In practice, this will be when the Commission receives either a signed letter or a completed online form from a person lodging a complaint. This means settlement offers and negotiations during dispute resolution process will be inadmissible.

The question of what documents or information will be inadmissible in a proceeding is a matter for determination by the court or tribunal hearing the matter.

Applications to VCAT

A person may apply directly to VCAT in relation to a complaint of discrimination, sexual harassment, victimisation or racial and religious vilification, whether or not that person has attempted dispute resolution at the Commission. See section 122 of the Equal Opportunity Act and section 23 of the RRTA. It is necessary to identify the correct respondent to a complaint, whether it is an individual or an organisation.

Who can apply to VCAT?

The following persons may make an application to VCAT under section 123 of the Equal Opportunity Act:

• a person who claims that another person has discriminated, sexually harassed or victimised them
• if that person cannot bring a dispute because of a disability – a person who is authorised to do so on their behalf or (if that person is unable to authorise another person) any other person
• if that person is a child – the child, a parent on the child's behalf, or (if the Commission is satisfied the child consents) any other person.

The same persons and representative bodies can bring an application to VCAT under the RRTA as those permitted to bring a dispute to the Commission – namely, those persons who are alleging racial or religious vilification against themselves or on behalf of another person or group of persons. See section 23(A) and 23(B).

Representative complaints to VCAT

A representative body may also make a direct application to VCAT under section 124 of the Equal Opportunity Act. Section 124(1)(a) provides that a representative body may make an application to VCAT on behalf of a named person or persons if VCAT is satisfied:

• each person is entitled to bring a dispute to VCAT under section 123(1)(a) as a person who claims that another person has contravened a provision in Part 4, 6 or 7 of the Equal Opportunity Act in relation to them
• each person has consented to the dispute being brought by the body on the person's behalf.

As with representative complaints to the Commission, the representative body must have a sufficient interest in the dispute (section 124(1)(b)), and if the dispute is brought on behalf of more than one person, the alleged contravention must arise out of the same conduct (section 124(1)(c)).

Criteria for a 'representative body'

The term 'representative body' is not defined in the Equal Opportunity Act. However, as noted above, the representative body must have a sufficient interest in the application. Section 114(2) and section 124(2) each provide:

In Cobaw Community Health Services v Christian Youth Camps Ltd [2010] VCAT 1613 (Cobaw) VCAT considered whether Cobaw Community Health Services (Cobaw) had standing as a representative body under the equivalent provision of the 1995 Act (sections 104(1B) and (1C)). This decision provides useful guidance on VCAT's approach to the interpretation of the relevant provisions.

Cobaw managed a project called 'WayOut', a state-wide youth suicide prevention project, targeting same sex attracted young people in rural areas. Christian Youth Camps (CYC) was a Christian Brethren organisation that ran the 'Phillip Island Adventure Resort'. A Cobaw staff member contacted CYC to book the resort for a camp for 60 young people and 12 workers. Cobaw alleged CYC refused to accept the booking because of the sexual orientation of the young people attending.

Cobaw brought a complaint of discrimination on the basis of sexual orientation and personal association with a person identified by their sexual orientation, in the area of provision of services, on behalf of 12 named people who intended to attend the camp. The named people included Cobaw workers, workers from other organisations involved in WayOut, and young people involved in WayOut, some of whom were same sex attracted and others who were not.

VCAT considered that, before turning to the merits of the application, it was required to assess each of the criteria the Commission must be satisfied are met for a representative complaint to be made under section 104(1B) of the Equal Opportunity Act 1995[51]:

• that the people named in the complaint are entitled to do so under section 104(1)(a)
• that the people named in the complaint consented to Cobaw bringing the complaint on their behalf
• that the contravention arises out of the same conduct for each complainant
• that Cobaw has a sufficient interest in the complaint.

In assessing these matters, VCAT considered it must interpret them consistently with the purposes of the Equal Opportunity Act, and the right to equality and freedom from discrimination in sections 8(2)–8(3) of the Charter of Human Rights and Responsibilities [40]. VCAT noted this approach meant it must interpret section 104(1B) in a manner that would give effect to the right of the people claiming they have been discriminated against to seek and obtain an effective remedy [52].

VCAT concluded giving effect to the 'right to a remedy' meant, in essence, that section 104(1B) should be interpreted in a way that facilitates the making of a complaint [55]. To do otherwise, VCAT considered:

VCAT considered there was a real prospect that without the assistance of a representative body, the individuals represented by Cobaw would be deterred from bringing their complaints [59]. VCAT took into account the power imbalance resulting from the young age and sexual orientation of many of the individuals represented against a large, well-resourced organisation such as CYC. It also considered the effect of the potential intrusion into the private lives of the complainants by bringing the complaint in a public forum.

VCAT concluded Cobaw did meet the first three criteria in section 104(1B) for 10 of the 12 complainants. In considering whether Cobaw had a 'sufficient interest' in the complaint, VCAT referred to section 104(1C) of the 1995 Act:

VCAT gave the following guidance in interpreting section 104(1C):

• 'conduct that constitutes the alleged contravention' is to be ascertained by reference to the complaint [72]
• 'conduct of that nature' requires consideration of the 'essential features' of the conduct giving rise to the complaint, and 'an application of the facts of the particular case to the provisions of the Equal Opportunity Act said to have been contravened' [73]
• consideration must also take place of:
  • the interests of the representative group ii. the interests and welfare of those they seek to represent
  • whether the contravention was 'a matter of genuine concern' to the group, through an examination of the activities of the representative group [74]–[75].
• the objects of the organisation, and its aims and purposes, are relevant to the 'sufficiency of interest' test, but are not determinative [89]
• the question of whether the organisation has a sufficient interest must be answered by reference to the words of the section, interpreted compatibly with human rights [92].

After significant analysis, VCAT was satisfied Cobaw had a sufficient interest in the complaint to have standing as a complainant.