What disputes can the Public Sector Gender Equality Commissioner resolve?

A class or group of affected employees, a union on behalf of a class or group of affected employees, or an employer may be able to refer a dispute to the Commissioner.

You can refer a dispute to the Commissioner if you work at one of the following entities:

• a public sector body
• Court Services Victoria
• the Office of Public Prosecutions
• an entity prescribed by regulations

and your enterprise agreement or workplace determination has a relevant gender equality clause allowing for the Commissioner’s involvement.

For example:

If the Claim is unable to be resolved between the Employer and the Claimant/s, either the Claimant/s or the Employer may refer the Claim to the Public Sector Gender Equality Commissioner (Commissioner) to deal with.
Clause 28.4(g) of the Victorian Public Service Enterprise Agreement 2020

The process of negotiating the contents of enterprise agreements is up to employees, employers, and employee representatives.

A dispute may be raised with the Commissioner if it relates to a systemic gender equality issue.

A systemic gender equality issue means an issue of a systemic nature which relates to one or more of the workplace gender equality indicators in the Act and adversely affects a class or group of employees.

This could include, but is not limited to, issues such as:

• practices or policies that disproportionately promote people of a certain gender to specific roles
• rostering practices that have unequal impact on people of different genders or with caring responsibilities
• pay inequality based on gender
• unreasonable limitations on flexible working arrangements that have unequal impact on people of different genders or with caring responsibilities
• inadequate organisational policies or practices to deal with allegations of sexual harassment
• gender inequality in types of employment, for example disproportionate gender representation in fixed term or casual positions

There are a range of issues that can’t be dealt with by the Commissioner, including:

• individual disputes about the application of an enterprise agreement to your employment
• grievances over individual decisions made by the employer
• individual investigations into allegations of sexual harassment

Employees should seek the assistance of their immediate manager, People and Culture/Human Resources area or relevant union for assistance with these types of individual issues or disputes in the first instance.

Depending on the nature of the individual matter, employees may also seek the assistance of the Victorian Equal Opportunity and Human Rights Commission, the Australian Human Rights Commission and/or the Fair Work Commission.

If you’re unsure about whether the Commissioner can help, contact us.

Your gender equality clause will specify when you can refer a dispute to the Commissioner.

In the first instance you should consider whether your dispute can be resolved at the workplace level without the Commissioner’s help.

For employees, this should include discussing your issue with your employer and giving them the opportunity to respond and address the problem.

If you are the employer seeking to refer the dispute to the Commissioner, you should make genuine attempts to resolve the matter in accordance with the relevant terms of your enterprise agreement or workplace determination.

You can download and use the 'Internal resolution form - raising a dispute with your employer' below.

The Commissioner has the power to deal with a referred dispute in any way they consider appropriate.

The Commissioner may:

• make a recommendation or express views and opinions
• conduct conciliation or any other dispute resolution process

The Commissioner must act independently and impartially in dealing with a dispute.

The Commissioner cannot conduct arbitration or make binding determinations.

The Commissioner handles information collected throughout the dispute resolution process in accordance with sections 46–46A of the Gender Equality Act 2020.

In certain circumstances (identified at section 46A of the Gender Equality Act 2020), the Commissioner may disclose information in relation to the dispute with other staff members of the Commission, the Fair Work Commission, the Victorian Equal Opportunity and Human Rights Commission and other prescribed bodies and persons.

In some cases, before sharing any personal information, the Commissioner will:

• seek consent from the person to whom the information relates; or
• remove the personal information

See the Commission’s privacy policy for further information.

If you have already attempted to resolve the matter at the workplace level, you may seek the assistance of the Commissioner to resolve your dispute.

You can do so by:

• filling in the online application form, or
• completing the application form below (by hand or electronically) and emailing it to disputes@genderequalitycommission.vic.gov.au.

Once the Commissioner receives a completed application form, they will review and assess whether the matter falls within scope of their function. The Commissioner may decline to deal with a dispute if is appropriate in the circumstances to do so. For example, if the dispute is between an individual and their employer or is not about a systemic gender equality issue.

If the dispute referral is accepted, the applicant may be contacted by a Commission staff member regarding the next steps in the dispute resolution process.

The Commissioner will then notify the respondent of the dispute, send them a copy of the form, and give them an opportunity to provide information relevant to the dispute.

More detail on the process can be found in the 'Dispute Resolution Function – Guidance Note' below.

Following the dispute resolution process, some of the possible outcomes may include:

• the Commissioner may make a recommendation to the parties about how the parties should resolve the dispute
• the Commissioner may request that the employer include any agreed measures in their Gender Equality Action Plan (if applicable), or report back on their progress towards implementing any recommendations
• the parties may reach agreement during the dispute resolution process on the steps for resolution.

If an agreement is reached between the parties, the Commissioner may circulate a settlement agreement for the parties to sign – this will be legally binding.

There may be other rights in your enterprise agreement or workplace determination related to resolving disputes. If you are a member of a union, you may wish to contact them for advice.