Stakeholders will know that Volunteering Victoria was asked for comments during the process of completing the draft Equal Opportunity Bill (the Bill) late in 2009. While a full scale consultation on the proposed provisions that impacted on the volunteering community would have been better, we worked with Department of Justice (DoJ) so that they and the State Government could understand the context within which under-resourced volunteer organisations had to operate and the challenges in implementing legislative based duties.

Note that the Bill was not passed by Parliament and this form may change. We’ll let you know of any relevant amendments.

The key changes proposed were for volunteering  work to  be included, rather excluded as is current law,  under the relevant definitions of employees, employer and employment in the Equal Opportunity Act 1995 (EOA). Volunteers become employees and volunteer involving organisations (whether or not they have paid staff or just volunteers) become employees, for the purposes of the EOA.

Volunteer involving organisations, for the purposes of the EOA, now become employers in relation to volunteers as well as paid staff - or just for volunteers if they have no paid staff.

DoJ and the State Government accepted most of Volunteering Victoria’s comments. The Bill released this week had an important concession to the needs of volunteering organisations: these definitional changes which have potentially the greatest impact volunteering of the reforms, will not commence until 1 July 2012. This gives us more than two years, if indeed the legislation is passed, to prepare for what will be a significant challenge.

Some other key provisions of the Bill that impact on volunteering are:

1. The definitions of both direct and indirect discrimination have been simplified
2. There is a new (clearer) duty to make “reasonable adjustments” for persons with an impairment, including reasonable alterations to common property. This  is a stand alone duty, meaning a failure to meet this duty is, on its own, a contravention of the EOA
3. Extension of powers of investigation of the Victorian Human Rights Commission to include the power to investigate contravention of the law on its own decision- i.e. without a complaint being filed. This power is limited in effect to contraventions which affect a number of people
4. There is a new positive  duty to proactively prevent discrimination, sexual harassment  and victimisation, and the Victorian Human Rights Commission may investigate a failure to do this
5. Vicarious liability can simply be described as “your employee contravenes the law and your organisation is held responsible” (they do, you pay). Vicarious liability for breaches of the EOA has long been a part of the EOA but will now apply to volunteer involving organisations. This is because of the inclusion of volunteers as employees, and volunteer involving organisations (whether or not they employ staff) as “employers”, for the purposes of the EOA. There is however a “reasonable precaution” provision, where “employers” may be able to avoid vicarious liability by proving they took precautions to prevent the contravention by the employee.

Clearly the Bill presents challenges for volunteering involving organisations. Volunteering Victoria is committed to supporting organisations to meet this challenge. Our upcoming governance training will have a strong Equal Opportunity component (so keep an eye on our website).

But it is important to remember that volunteers deserve the same protection under the law as employees. The Bill achieves that in relation to the employment area, and for that reason the volunteering community should support it.

But of course we in turn need government to support us in implementing the changes if the legislation passes. Volunteering Victoria has made the following recommendations to government and we will continue to work with government on the challenges of implementing the changes. We welcome comment from stakeholders.

Recommendation one: The State Government work with Volunteering Victoria and other key stakeholders to respond to this challenge, including specific measures such as a training and resource development plan to assist volunteering response. This should include a knowledge management plan, and some short term monitoring and evaluation of impact of changes on volunteering organisations

Recommendation two: that clear information about how to understand and use exemptions and exceptions under the legislation is a key part of a training and resource development plan. This should include information about the new reasonable adjustment sections

Recommendation three: provide support as part of the training and resource development plan, to establish good practice in recruiting and management to meet these challenges

Recommendation four:  provide information in simple form as part of the training and resource development plan about how to meet the positive duty to prevent discrimination, sexual harassment and victimisation

Recommendation five: Establish clarity as to the scenarios raised by Volunteering Victoria with respect to the extension of vicarious liability to volunteer involving organisations. Consider further discussion with stakeholders and amendments if required

Recommendation six: Department of Justice work with Volunteering Victoria and other key stakeholders to design and implement a program that maximises understanding of the principles underlying the reform, using a partnership approach. Volunteering stakeholders must take-up the principles underlying the reform if it is to work effectively to change culture.

Recommendation seven: in the implementation of the training and resource development, the reform be presented in the context of broader change for volunteering, linking this reforms to others including to Victoria’s Volunteering Strategy 2009, and proposed changes to the Associations Incorporations Act 1981 Vic.

Authorised by Dianne Embry, CEO Volunteering Victoria.

Comments to Dianne Embry and James Wilson, Policy and Advocacy Officer, This e-mail address is being protected from spambots. You need JavaScript enabled to view it

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