“There is a purpose that the FWO has under our legislation to investigate and litigate matters. It is not duplication in the sense that other agencies cannot investigate and litigate,” he says.
Wilson says the Human Rights Commission can inquire into a case but cannot take it to court if required, and there are some matters which, because of the circumstances of the individual, require a public investigation of the individual.
He says he is unaware of powers which exist 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” in a proceeding, which may significantly affect the right to protect against discrimination of persons who are not parties to the proceeding.
As the law stands in Victoria, there are multiple options for employers and employees to consider if an employee makes an allegation that they have suffered sexual harassment in the workplace.
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.
“I’m certainly not an expert on what the state equal opportunity commission can do but the model they run is a mediation model. I’m not aware of circumstances where they are taking full investigation and full litigation of matters,” Wilson says.
He says the FWO is not trying to take on the role of other federal and state agencies.
“We work co-operatively with other anti-discrimination bodies and there is quite a distinction between the Equal Opportunity Commission, Human Rights Commission and what we do. We are an employment-related service and their role is quite broad – it covers the whole community,” he says.
Wilson says the FWO does meet with the Human Rights Commission and other bodies periodically and the various bodies share information between themselves.
Hartigan says he is not criticising the Ombudsman.
“There is a discussion that could be had about the multiplicity of discrimination and employment laws at a federal and state level and whether they can be simplified to enhance compliance by employers and similarly whether there could be some simplification of which agencies are empowered to enforce compliance with those laws,” he says.
