RSL Management Seminar Speaker: Sascha Cook

1. RSL Management SeminarSpeaker: Sascha Cook

2. AGENDA Part 1 – The Law PART 2 – COMPLAINTS, INVESTIGATION PROCESS AND RESOLUTION PART 3 – CASE STUDIES

3. Legislation • Equal Opportunity Act 1995 (Vic) • Sex Discrimination Act 1984 • Racial Discrimination Act 1975 • Disability Discrimination Act 1992 • Australian Human Rights Commission Act 1986 • Age Discrimination Act 2004

4. Matters relevant to the RSL Issues arising under these laws relevant to the RSL: • Membership eligibility and privileges • Access to services and facilities • Dress requirements • Vicarious liability • Employment • Discrimination is unlawful whether done by the club, the committee of management of the club, or a member of the committee of management.

5. What is unlawful? • For unlawful discrimination to occur, there must be less favourable treatment on the basis of an attribute protected by the Act, and the treatment must occur within an area listed in the Act. • Under the Act, it is unlawful to treat anyone unfairly on the basis of the following attributes or personal characteristics.

6. Equal Opportunity Act 1995 (Vic) ‘Attributes’ on basis of which discrimination is prohibited: S 6 age, breastfeeding, gender identity, impairment, industrial activity, employment 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 relative or otherwise) with a person who is identified by reference to any of the above attributes.

7. Attributes Age: • It is unlawful to threaten an employee with retirement or engage in conduct with a view to causing the employee to retire (exceptions: judges, magistrates and others). • Conciliated complaint – Paul (26) booked holiday accommodation for himself and friends. He was aware that he was required to pay a deposit and security bond fees. After providing his personal details (inc. age) and paying the deposit, he was advised that he double the amount for the security bond because of his age. Settled complaint – change in policy and refund of deposit.

8. Attributes Breastfeeding: includes the act of expressing milk. • Anne is a stockbroker and has brought her 9 month old baby into work because her babysitter called in sick. Anne begins breastfeeding her child at her desk and is promptly asked by her manager to move into a nearby broom cupboard and remain there while feeding the baby. Such behaviour may constitute less favourable treatment thereby giving rise to a discrimination claim.

9. Attributes Gender Identity: • the identification on a bona fide basis by a person of one sex as a member of the other sex (whether or not the person is recognised as such)- (i) by assuming characteristics of the other sex, whether by means of medical intervention, style of dressing or otherwise; or (ii) by living, or seeking to live, as a member of the other sex; or (b) the identification on a bona fide basis by a person of indeterminate sex as a member of a particular sex (whether or not the person is recognised as such)- (i) by assuming characteristics of that sex, whether by means of medical intervention, style of dressing or otherwise; or (ii) by living, or seeking to live, as a member of that sex;

10. Attributes Impairment: • (a) total or partial loss of a bodily function; (b) the presence in the body of organisms that may cause disease; (c) total or partial loss of a part of the body; (d) malfunction of a part of the body, including- (i) a mental or psychological disease or disorder; (ii) a condition or disorder that results in a person learning more slowly than people who do not have that condition or disorder; (e) malformation or disfigurement of a part of the body;

11. Attributes Impairment: • Conciliated complaint of disability discrimination in provision of goods and services: Ian is hearing impaired and is assisted by a hearing dog. He was told when he entered a restaurant that he was refused entry due to the hearing dog and could only sit outside the restaurant. Settled – change of policy; signage placed at entrance welcoming assistance animals, a written apology and $500 compensation.

12. Attributes Industrial activity • (a) being or not being a member of, or joining, not joining or refusing to join, an industrial organisation or industrial association; (b) establishing or being involved in establishing an industrial organisation or forming or being involved in forming an industrial association; (c) organising or promoting or proposing to organise or promote a lawful activity on behalf of an industrial organisation or industrial association; (d) encouraging, assisting, participating in or proposing to encourage, assist or participate in a lawful activity organised or promoted by an industrial organisation or industrial association

13. Attributes Industrial activity continued • (e) not participating in or refusing to participate in a lawful activity organised or promoted by an industrial organisation or industrial association; (f) representing or advancing the views, claims or interests of members of an industrial organisation or industrial association; industrial association means a group of employees or employers, formed formally or informally to represent or advance the views, claims or interests of the employees or employers in a particular industry, trade, profession, business or employment, not including an industrial organisation;

14. Attributes • Employment activity: This is the newest attribute upon which discrimination is prohibited and commenced operation on 31 March 2008. • An employee engages in employment activity in his or her individual capacity when asking reasonable questions or communicating concerns about their employment entitlements. • Example – Barry questions his hours of work, which were outside those specified when commencing employment and claimed backpay. Employer became hostile and employment terminated – settled $5,500 at conciliation.

15. Attributes Lawful sexual activity • lawful sexual activity means engaging in, not engaging in or refusing to engage in a lawful sexual activity.

16. Attributes Marital status: means a person's status of being- • single; (b) married; (c) a domestic partner; (d) married but living separately and apart from his or her spouse; (e) divorced; (f) widowed;

17. Attributes Parental status or status as a carer (“family responsibilities”): • carer means a person on whom another person is wholly or substantially dependent for ongoing care and attention, other than a person who provides that care and attention wholly or substantially on a commercial basis; • parent includes- (a) step-parent; (b) adoptive parent; (c) foster parent; (d) guardian; parental status means the status of being a parent or not being a parent;

18. Attributes Parental status or status as a carer (“family responsibilities”): it is unlawful for employers to unreasonably refuse to accommodate the parental or carer responsibilities of employees. This means employers must seriously consider requests made by those offered employment and employees for changes to working arrangements.(inc. hours of work, leave, staff meetings, travel…) • Conciliated complaint – Brooke a dental nurse for three years. She has been on 12 mths maternity leave and requests to return part-time. Her employer refuses stating that she must return to her substantive FT position. Resolution: letter of apology from employer and $15,000 compensation.

19. Attributes Physical features: means a person's height, weight, size or other bodily characteristics;

20. Attributes Political belief or activity: means- (a) holding or not holding a lawful political belief or view; (b) engaging in, not engaging in or refusing to engage in a lawful political activity;

21. Attributes Pregnancy: this includes pregnant; presumed to be pregnant, or may become pregnant. • Conciliated complaint outcome- Claire was employed for two years as a retail manager for a clothing firmShe became pregnant and proceeded on 12 months maternity leave. During her leave her position became redundant and her employer did not inform her of this. When she sought to return to work at the end of 12 months she was advised she did not have a job to return to or an alternative position. The complaint settled for $10,000 compensation.

22. Attributes Race: includes- (a) colour; (b) descent or ancestry; (c) nationality or national origin; (d) ethnicity or ethnic origin; (e) if 2 or more distinct races are collectively referred to as a race- (i) each of those distinct races; (ii) that collective race; • Conciliated complaint – Ismat is Indonesian and commenced as an accountant. He alleged he received less training and duties than an Australian employed at the same time. His employer asked why he had an Australian surname and told him he did not fit the work culture and was subsequently dismissed. Settled - $3,500.

23. Attributes Religious belief or activity: • holding or not holding a lawful religious belief or view; (b) engaging in, not engaging in or refusing to engage in a lawful religious activity;

24. Attributes Sex • Conciliated complaint – Judy was employed as an engineer with an international company. She stated that her employer paid her less and refused her the same benefits of employment as male engineers such as a company car and corporate card. Judy was also overlooked for particular projects as males were considered to be more ‘reliable’. Judy resigned. The complaint was settled at conciliation for $45,000, a statement of regret and equal opportunity training.

25. Attributes Sexual orientation: means sexual orientation means homosexuality (including lesbianism), bisexuality or heterosexuality;

26. Attributes personal association (whether relative or otherwise) with a person who is identified by reference to any of the above attributes. • relative, in relation to a person, means- (a) a spouse or domestic partner of that person; (b) a parent or grandparent of that person or of a spouse or domestic partner of that person; (c) a child (whether or not under the age of 18 years) or grandchild of that person or of a spouse or domestic partner of that person; (d) a brother or sister of that person or of a spouse or domestic partner of that person;

27. Attributes personal association cont.. (e) a child (whether or not under the age of 18 years) of a brother or sister of that person or of a brother or sister of a spouse or domestic partner of that person; (f) a child (whether or not under the age of 18 years) of a brother or sister of a parent of that person or of a brother or sister of a parent of a spouse or domestic partner of that person;

28. Areas • The following list includes the areas where discrimination is specifically prohibited: • Accommodation • * Clubs and club members • Education • * Employment • Local government • * Provision of goods and services and disposal of land • Sport *The areas with the asterisk are very relevant to RSL’s.

29. Clubs and Club Members s.4 club, except in section 78, means a social, recreational, sporting or community service club, or a community service organisation— (a) that occupies any Crown land; or (b) that directly or indirectly receives any financial assistance from the State or a municipal council;

30. Discrimination against applicants for membership s.59A club, or a member of the committee of management or other governing body of a club, must not discriminate against a person who applies for membership of the club— (a) in determining the terms of a particular category or type of membership of the club; (b) in the arrangements made for deciding who should be offered membership; (c) by refusing, or failing to accept, the person's application for membership; (d) in the way in which the person's application is processed; (e) in the terms on which the person is admitted as a member.

31. Discrimination against Club Members s. 60 A club, or a member of the committee of management or other governing body of a club, must not discriminate against a member of the club— • (a) by refusing, or failing to accept, the member's application for a different category or type of membership; • (b) by denying or limiting access to any benefit provided by the club; • (c) by varying the terms of membership; • (d) by depriving the member of membership; • (e) by subjecting the member to any other detriment.

32. Exceptions • Clubs for disadvantaged people or minority cultures; • Clubs and benefits for particular age groups; • Separate access to benefits for men and women.

33. Harassment in Clubs A member of a club, including a member of the committee of management or other governing body, must not sexually harass— (a) a person seeking to become a member of the club; (b) another member of the club; (c) an employee of the club.

34. Provision of Goods and Services Racial Discrimination Act 1975 • The refusal or failure to supply goods and services to another person on demand on grounds of race, colour, national or ethnic origin of any person or any relative or associate of that person, will be a breach of the Racial Discrimination Act. • Similarly refusal of access to places, vehicles or facilities will also breach the Racial Discrimination Act. Services include the provision of facilities which include banking, insurance, grants, loans, credit or finance. There are notable exceptions which include ‘special measures’ which are taken for the sole purpose of securing adequate advancement of certain racial or ethnic groups or individuals. • The Sex Discrimination Act 1984 – makes discrimination on the grounds of sex, marital status, potential pregnancy or pregnancy unlawful in the provision of goods, services and facilities. • Sexual harassment • It is unlawful for a person to sexually harass another person in the course of providing, or offering to provide, goods, services or facilities to that other person. Relevant to the RSL’s services - services includes entertainment, recreation, refreshments. • Disability Discrimination Act 1992 • Refusal to provide goods, services, facilities or access to, or the use of premises or place, on any of the prohibited grounds. • Premises includes a structure, building, aircraft or vessel, a place, enclosed or not, a part of a premises. • Relevantly, “services” includes entertainment, recreation or refreshments.

35. Provision of Goods and Services The Sex Discrimination Act 1984 – makes discrimination on the grounds of sex, marital status, potential pregnancy or pregnancy unlawful in the provision of goods, services and facilities. Sexual harassment It is unlawful for a person to sexually harass another person in the course of providing, or offering to provide, goods, services or facilities to that other person. Relevant to the RSL’s services - services includes entertainment, recreation, refreshments.

36. Provision of Goods and Services Disability Discrimination Act 1992 • Refusal to provide goods, services, facilities or access to, or the use of premises or place, on any of the prohibited grounds. • Premises includes a structure, building, aircraft or vessel, a place, enclosed or not, a part of a premises. • Relevantly, “services” includes entertainment, recreation or refreshments.

37. Employment It is unlawful to discriminate against a person on the basis of the attributes in employment.

38. EEO The absence of overtly discriminatory policies, practices and the application of positive obligations on employers to ensure certain groups receive equal opportunities in employment.

39. It’s The Law But Also… • EEO issues have significant costs including: • absenteeism, lower productivity, reduced work performance, low morale • resignations, transfers, recruiting and training replacement staff • Stress and related illnesses, workers' comp claims • Investigate/resolve complaints • Negative publicity • Legal costs and/or financial compensation

40. What do people complain about in employment? Complaints – 74.4% are in regard to employment 19% - disability or impairment 17% - sex discrimination & sexual harassment 12% - parental or carer status 8% - race 6% - age

41. What is the Law? • Can employers tell employees how to behave at work? YES

42. When does the law apply? • In the workplace • During work activities – no matter where • At work related social functions • When dealing with others on behalf of the employer – contractors, customers etc.

43. Activities where discrimination is prohibited • Discrim against job applicants • Discrim against e/ees – can’t deny or limit access to promotion, transfer or training or ‘any other benefits associated with employment’ – can’t dismiss –can’t subject e/ee to ‘any other detriment’ • Note how broadly constructed this provision is

44. “I was just asking..” • It is illegal to ask questions in an interview or job application which can be then used to discriminate : e.g. “Do you intend to have children?”

45. Exceptions where you CAN discriminate Include: • Genuine occupational requirements/ qualification • In case of impairment, where not reasonable for e/er to provide special services or facilities to undertake the ‘genuine and reasonable requirements of the employment’ etc

46. DISCRIMINATION • The Act prohibits discrimination against people (including employees) on the basis of a number of attributes including physical features and impairment. It may be that in a particular case an illness or injury may constitute an impairment in accordance with the Act. • The Act specifically excludes termination of employment on the basis of an attribute provided for by the Act.

47. DISCRIMINATION • S.21A Disability Discrimination Act 1992 provides: • Not unlawful to discriminate on the basis of disability where the employee is unable to carry out the inherent requirements of the particular employment and • Services or facilities are required which would impose an unjustifiable hardship on the employer

48. Unjustifiable Hardship S.21B (1)  all relevant circumstances of the particular case must be taken into account, including the following: (a)  the nature of the benefit or detriment likely to accrue to, or to be suffered by, any person concerned; (b)  the effect of the disability of any person concerned; (c)  the financial circumstances, and the estimated amount of expenditure required to be made, by the first person; (d)  the availability of financial and other assistance to the first person; (e)  any relevant action plans given to the Commission under section 64. For the purposes of this Act, the burden of proving that something would impose unjustifiable hardship lies on the person claiming unjustifiable hardship.

49. INHERENT REQUIREMENTS • Whether the position would essentially be the same if that requirement were dispensed with. (Qantas v Christie)

50. Discrimination • Direct • Indirect