Exceptions and Exemptions to the Equal Opportunity Act 1995 Options Paper

Section 28 – Single sex accommodation

This provision empowers the Tribunal to grant an exemption to authorise an employer to limit the offering of employment to people of one sex if they will be required to live in communal accommodation provided by the employer that is not suitable for occupation by people of both sexes.

28. Exemption—single sex accommodation

The Tribunal, by granting an exemption under section 83, may authorise an employer to limit the offering of employment to people of one sex if they will be required to live in communal accommodation provided by the employer that is not suitable for occupation by people of both sexes.

Since this provision does not directly result in an exception from compliance with the EO Act, but only in VCAT being able to authorise single sex accommodation, it has only indirect effect. Questions of reasonableness may arise, such as when it would be reasonable to expect the employer to have made the accommodation suitable for employees of both sexes, and how an intersex or transgender employee is to be treated under this provision. While VCAT would need to address these questions, the need for greater clarity about the position of transgender and intersex people in relation to the sex-based exceptions will require further consideration.

Any exemption granted would be temporary, and since VCAT will be obliged to exercise its power under s. 83 in accordance with the purpose of the Act, this exception can be regarded as a ‘reasonable limitation’ on the right to equality within s. 7(2) of the Charter.

There is no provision in other Australian legislation similar to s. 28. The jurisdictions that have exceptions for single sex accommodation mainly treat it as an example of a genuine occupational requirement: NSW s. 31(2)(f), WA s. 27(2)(f), ACT s. 34(2)(g) and SDA (Cth) s. 30(2)(f). In Queensland it is treated as a stand alone exception by s. 30. There is no specific provision in SA, NT, Tasmania or the other federal laws. Thus the Victorian provision is the only one that requires a tribunal decision before this exception is relied on. There has been no dissatisfaction expressed with this provision, however, and it is proposed to retain it in its current form.

Section 28 provides a useful model for allowing an exception where it is preferred that there should be supervision by VCAT of the circumstances in which it is used.

Options for reform:

Option 1: No change is proposed in relation to s. 28.

Sections 30 and 31 – Establishing firms and partnerships

Sections 30 and 31 relate to establishing firms and selection of partners in firms. Where the number of partners is less than 5, then the prohibitions on discrimination by firms and partnerships do not apply to selection of partners, or in the terms on which a person is invited to join the partnership.

30. Discrimination in establishing firms

A person who intends to establish a firm comprising 5 or more partners must not discriminate against another person in the terms on which the other person is invited to become a partner.

31. Discrimination by firms

(1) This section applies to firms comprising 5 or more partners.

(2) A firm to which this section applies must not discriminate against a person—

(a) in deciding who should be invited to become a partner;

(b) in the terms on which the person is invited to become a partner.

(3) A firm to which this section applies must not discriminate against a partner of that firm—

(a) by denying or limiting access by the partner to any benefit arising from partnership in the firm;

(b) by expelling the partner from the firm;

(c) by subjecting the partner to any other detriment.

This provision is an apparent counterpart of the small business exception, though it relates to partnerships and firms (the name for the whole partnership) rather than the employer / employee relationship. This report has recommended that the small business exception be repealed. However, the situation with partnerships is different from employment. A partnership involves the sharing of legal risk by the partners and involves joint and several liability for debts. A fiduciary relationship exists between partners, which requires ‘partners to make full disclosure of all material information, to act with utmost good faith in all matters concerning the partnership business, and to account for all benefits derived by use of the partnership property, name or business connection.’⁴⁶ These features make a partnership relationship quite different from an employment relationship. The selection of a new partner in a small partnership may involve undertaking joint legal risk and fiduciary duties towards the new partner. It involves a more personal level of commitment and responsibility than does an employment relationship.

This may bring the relationships involved in partnerships of four or less closer to the realm of individual privacy and choice than to the public nature of a contract of employment. However, no submissions were made in relation to ss. 30 and 31 other than by the VEOHRC, which argued that limiting the prohibition of discrimination to firms of five or more partners only is an unreasonable and unjustified limitation on the right to equality. It saws the rationale for such an exception as similar to the one for small business, that of reducing regulatory and economic burden for small business, which would not be sufficient to make this exception and reasonable limitation on the right to equality.

In other Australian jurisdictions, similar provisions exist, with most excepting partnerships of five and under from the prohibitions of discrimination: SDA s. 17, NSW ADA, s. 10A(1), 27A(1), etc; Qld s. 16, 17; SA s. 33(1), where sexuality is the only exempted ground, and WA: s. 14, and 33. No similar exceptions exist in Tasmania, ACT or NT. Sections 30 and 31 are more limited than most of these provisions, because they cover only firms of four or fewer partners.

There were no other submissions on these provisions. The VEOHRC recommended removing this exception to parallel the small business exception.

Comments are sought on whether or not there is support for regarding the ‘small partnerships’ exceptions as reasonable limitations on the right to equality.

Options for reform:

Option 1: No change is proposed to these provisions at this stage.