developing disability advocacy using representative complaints kenton miller, veohrc & trevor...
TRANSCRIPT
Developing Disability Advocacy
Using representative complaints
Kenton Miller, VEOHRC & Trevor Carroll, Disability Justice Advocacy
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Session content
Aims of equal opportunity law
Unlawful behaviours (disability)
Preventing complaints
Dispute resolution model
Representative complaints
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Why we have equal opportunity laws
The EOA 2010 aims to:
• eliminate discrimination, sexual harassment and victimisation
• encourage the identification and elimination of systemic causes of these behaviours
• promote and protect the right to equality in the Charter
• facilitate the progressive realisation of equality as far as reasonably practicable
Unlawful behaviours
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Unlawful behaviours
Discrimination (direct or indirect)
Part 2 Equal Opportunity Act
2010 (Vic)
Part 6 Equal Opportunity Act
2010 (Vic)
Sexual harassment
Victimisations103
Equal Opportunity Act2010 (Vic)
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Unfavourable treament
Unfavourable treatment could be:
– being harassed or bullied
– being denied a benefit or opportunity available to others
– unfavourable terms in provision of a good, service, benefit or opportunity
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Areas of public life
1. Employment
2. Goods and services
3. Education
4. Local government
5. Accommodation
6. Sport
7. Clubs and club membership
8. Disposal (sale, transfer) of land
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18 protected attributes
• Age
• Disability
• Physical features
• Race
• Religious belief/activity
• Industrial activity
• Political belief/activity
• Employment activity
• Sex (M or F)
• Marital status• Pregnancy• Breastfeeding• Parental• Carer status• Lawful Sexual Activity• Sexual orientation• Gender Identity• Personal Association
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18 protected attributes (% complaints 2012 – 2013)
1. Disability (28%)
2. Race (10.3%)
3. Sex (7.1%)
4. Employment activity (6.4%)
5. Age (5.2%)
6. Carer Status (5%)
7. Physical Features (4.7%)
8. Parental Status (4.3%)
9. Pregnancy (2.2%)
10. Personal Association (1.7%)
11. Religious Belief/Activity (3.5%)
12. Industrial Activity (1.3%)
13. Sexual Orientation (1.3%)
14. Marital Status (1%)
15. Lawful Sexual Activity (0.9%)
16. Gender Identity (0.4%)
17. Political Belief Activity (0.2%)
18. Breastfeeding (0.2%)
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disability means—
• Total/partial loss of a bodily function;
(e.g. broken arm or visually impaired) or
• (b) the presence in the body of organisms that may cause disease; (e.g. HIV or Hepatitis) or
• (c) total or partial loss of a part of the body;
(e.g. missing limb or fingers) or…
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disability means—
• (d) malfunction of a part of the body, including a mental or psychological disease or disorder;(e.g. depression or schizophrenia) or
• (ii) a condition or disorder that results in a person learning more slowly than people who do not have that condition or disorder; (e.g. dyslexia or Downs Syndrome) or
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disability means—
• (e) malformation or disfigurement of a part of the body(e.g. Gross scarring or deformity)
• — and includes an impairment that may exist in the future (including because of a genetic predisposition to that impairment) and, (e.g. Huntington’s disease or diabetes)
• — to avoid doubt, behaviour that is a symptom or manifestation of an impairment…(e.g. behaviour associated with autism)
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Also protected under disability is…
…any assistance aid that a person with a disability has or is accompanied by…
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Direct discrimination
Direct discrimination is where a person is treated:
– unfavourably
– because of a ‘protected’ attribute
– in an area of public life
Example:Vicki has diabetes. She is told she can’t work as a paramedic although she has medical certificates to confirm that she has never had a hypoglycaemic event and that her diabetes poses no threat to patients.
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Indirect discrimination
Indirect discrimination occurs where:– a requirement, condition or practice
– that disadvantages a person with a protected attribute
– that is unreasonable.
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Indirect discrimination
Indirect discrimination occurs where:– a requirement, condition or practice
– that disadvantages a person with a protected attribute
– that is unreasonable.
Example:
An advertisement for a job as a cleaner requires the applicant to have VCE English
Preventing complaints
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Reasonable Precautions include…
• Relevant policies that are known to staff (e.g. through induction, regular training [formal or informal] and other promotional activities)
• Ensuring any issues or complaints are handled quickly, effectively and confidentially
• Making EO a routine part of recruitment, provision of staff benefits, organisational planning, service design
• Leadership: managers and supervisors who ‘walk the talk’ and lead by example
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Reasonable adjustments
Employers and service providers have an obligation to make reasonable adjustments for people with a disability to enable them to participate or access the service.
Example: Toby has recently been prescribed anti-depressants that leave him sleepy in the morning. He needs to start work late for 2 weeks whilst he adjusts to the new medication.
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Parent and carer responsibilities
Employers must seriously consider requests for flexible work arrangements from their employees if they have parental or career responsibilities.
Example: David is the sole career for his elderly father. He asks his employer for their understanding if he has to take his father to medical appointments during business hours. His employer agrees.
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Victimisation
It is unlawful to treat a person worse because they have (or intend to):
– make a complaint
– be a witness in a complaint
– refuse to breach Equal Opportunity legislation.
Example:Ms Alexander made a complaint of sexual harassment. She was told if she pursued the complaint she would be fired. She made a further complaint and her position was terminated. She was awarded $75,000 in compensation for victimisation.
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The preventative framework
Organisations must take reasonable and proportionate preventative measures to identify and eliminate discrimination, sexual harassment or victimisation.
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Complaint options: external
Victorian Equal Opportunity & Human Rights Commission
Victorian Civil and Administrative Tribunal
Australian Human Rights Commission.
Fair Work Commission
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Dispute resolution service
• Free, flexible, voluntary – aimed at early intervention
• Conciliations as soon as possible
• Commission provides enquiry line and information
• Person may complain directly to VCAT
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Conciliation is…
The model of dispute resolution used by the Commission
Where parties talk through how they see the complaint and try to resolve it
Confidential Flexible, responsive and tailored to the needs of
the parties Not a court hearing. No decisions about who is
right or wrong or whether the law has been breached. No evidence given.
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Representative complaints
Groups may bring complaints if
a person has consented
the group has a sufficient interest in the dispute
if the dispute is on behalf of more than one person, the complaint must be about the same behaviour.
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Representative complaints
A group has sufficient interest in a dispute;
if it is a matter of genuine concern to the group, or
Because the behaviour adversely affects the interests of the group or the welfare of the people it represents.
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What is a complaint?
A complaint must be made in writing
A complaint can be completed online or be sent by email, fax or post
A complaint can be made by someone else on your behalf
Complaints are confidential and not made public.
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After you make a complaint
Parties receive a letter that dispute resolution has commenced.
The file is allocated to a conciliator who will call the parties to discuss:– the allegations
– the outcomes being sought to resolve the complaint.
The conciliator will invite the parties to the conciliation and discuss the form it might take.
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Flexibility in the process
Some complaints can be conciliated quickly:
– A disability complaint from a student about exam arrangements
– On return from parental leave, a person’s flexibility arrangements are changed
– A disability complaint where the person is booked to travel by plane.
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Common outcomes sought
Apologies/ statement of regret, verbal or written Financial compensation Redundancy payment Medical expenses Reference/Statement of Service Donation to charity Policy changes Training Improved accessibility
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Contacts
Victorian Equal Opportunity & Human Rights Commission
3/204 Lygon Street Carlton VIC 3053
Advice Line 1300 292 153Telephone 1300 891 848TTY 1300 289 621Interpreters 1300 152 494
Email [email protected] humanrightscommission.vic.gov.au