‘Talk, not courts, best for discrimination cases’: employers

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‘Talk, not courts, best for discrimination cases’: employers

The recruitment industry in Victoria is arguing for the resolution of discrimination issues through conciliation, not courts, and without the need for a written response to a complaint.

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The recruitment industry in Victoria is arguing for the resolution of discrimination issues through conciliation, not courts, and without the need for a written response to a complaint.

The Recruitment and Consulting Services Association (RCSA) said in its submission to a review of the State Equal Opportunity Act that the existing legislation should also be more clearly drafted in relation to the obligations of all parties where recruitment is being undertaken by an agent on behalf of a client.

‘The current process, where an employer must respond to a Statement of Complaint, often adds significant cost to the parties in terms of time and representation,’ said Julie Mills, CEO of the RCSA.

‘There should be an option for a conciliation conference to occur without the need for a written response, where appropriate, on a ‘without prejudice’ basis with a view to clarification and resolution.’

Sexual harassment

RCSA also submitted that the Equal Opportunity Commission Victoria (EOCV) should be provided with greater capacity to informally resolve complaints of sexual harassment through immediate conciliation or mediation conducted without prejudice.

It said it would support the exploration of extending the scope of the legislation to volunteers, who are currently not covered by the anti-discrimination legislation.

Mills said that, as with much employment law, the Equal Opportunity Act was drafted on the basis of the traditional employer-employee relationship in mind.

Changed relationship

‘However, the modern flexible workforce and the role played by recruitment professionals has changed that relationship, and it’s important that the law reflects this diversity of relationships,’ she said.

‘With the recruitment and on-hire sector now responsible for generating $22 billion revenue annually, there’s a significant proportion of the employment market that requires clear, well-drafted legislation.’

One approach suggested by the RCSA is to embed individuals within workplaces to educate co-workers on the impact of working with particular attributes.

‘Such a program would extend awareness of workers who, in turn, may become ambassadors of the anti-discrimination cause,’ Mills said.

No ‘go away’ money

The RCSA said all care should be taken to prevent the use of the complaints system as a means of extracting ‘go away’ money from employers.

‘The Commission should be provided with greater liberty to reveal to the Victorian Civil and Administrative Tribunal (VCAT) the extent to which parties have attempted to reach a resolution before reaching the hearing stage at VCAT,’ Mills said.

‘This is important for VCAT to understand in the context of vexatious claims and where individuals have not reasonably settled.

‘The Commission should be given further freedom to express an opinion to parties about the merits of a complaint. This, in the opinion of RCSA, would prevent unnecessary action being taken within VCAT.’

The RCSA pointed out that its internal procedures are an effective tool in preventing and resolving discrimination.

Code of conduct

‘The RCSA maintains a Code of Professional Conduct authorised by the Australian Competition and Consumer Commission (ACCC) under which discrimination complaints can and have been made and resolved,’ Mills said.

‘This approach to self governance is one that has worked effectively as an alternative dispute resolution procedure, and significant sanctions can be placed upon non-compliant members.’ 

In the submission, the RCSA strongly supports further funding of employer associations to help prevent discrimination.

‘Employer associations are well-placed to develop tools and materials relevant to their Members and based on the particular issues and context of their industry. They could have a genuinely positive impact on educating their Members about discrimination and how to avoid it,’ Mills said.

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