If there’s a discrimination claim: Who you gonna call?

If a discrimination claim by an employee is not stressful enough for a small business to deal with, there are now a range of different laws and agencies businesses have to deal with.

The duplication which has occurred became evident last month when the Fair Work Ombudsman launched its first age discrimination prosecution, an area that’s already covered by the Human Rights Commission.

At the time, Chris Hartigan, partner at law firm Herbert Geer, said the prosecution was a waste of taxpayer dollars because legal remedies already existed.

The Fair Work Ombudsman has hit back at the criticism, which he described as “superficial analysis” and denied there is duplication of resources.

The Ombudsman claims prosecution by the FWO is needed because the Human Rights Commission can inquire into a case but cannot take it to court if required.

The FWO appears to be unaware of state-based powers such as those which have existed since 2011 that enable the Victorian Human Rights and Equal Opportunity Commission to intervene and become a party in cases which relate to matters of equal opportunity, discrimination, sexual harassment or victimisation.

The Victorian commission also has the power, with leave of a court or tribunal, to assist a court or tribunal as “amicus curiae” (someone, not a party to a case, who volunteers to offer information to assist a court in deciding a matter before it) in a proceeding, which may significantly affect the right to protect against discrimination of persons who are not parties to the proceeding.

With the addition of the FWO into the mix, if an employee makes an allegation that they have suffered sexual harassment in the workplace then there are a plethora of legal avenues and remedies.

In Victoria, the employee can make a complaint under the Equal Opportunity Act (a state Act) alleging discrimination and seeking a remedy from the relevant tribunal, or lodge a complaint under the Sex Discrimination Act (a federal Act) and go through the mediation process managed by the Australia Human Rights Commission and, ultimately, prosecute a claim in the Federal Court, or make a complaint to the Fair Work Ombudsman.

Quite frankly, it’s a mess.

Businesses and taxpayers have a legitimate right to question whether a government is achieving its policy objectives through the legislation it passes and the agencies it funds to implement its legislation.

They also have a legitimate expectation that a government will implement its policies in an efficient and clear way so that compliance with the requirements of the law are capable of being met without greater cost or complexity than is necessary.

It is unclear why the government felt the need to waste time and funds enacting a further piece of legislation when relevant legislation already existed.

It’s also a mystery why the government has given the enforcement of those standards to a different agency which has not had a history of involvement in the development of policy and mediation of disputes in relation to those matters.

There is continuing confusion over which laws apply to which conduct and why it is there is such a multiplicity of both legislation and agencies at both state and federal level dealing with exactly the same type of matters.

The legal system is difficult enough for small businesses to navigate without having to deal with this mess.


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