Explanatory memorandum:A detailed description of the provisions of the model is set out hereunder:
The Long Title
This indicates the main objectives of the legislation which are to promote equality
of opportunity and treatment for women in employment and to provide remedies in
respect of discrimination on the ground of sex, marital status or pregnancy.
Short Title
The Act is entitled, The Employment of Women (Equal Opportunity and Treatment)
Act.
Section 2 - Objects
This sets out the objects of the Act with specific reference to the implementation
of certain provisions of the Convention on the Elimination of All Forms of Discrimination
Against Women and the promotion of the recognition and acceptance of the equality
of men and women.
Section 3 - Interpretation
Various terms are defined, including the following which are of particular significance:
"de facto spouse"
A de facto spouse in relation to a person is a person of the opposite
sex to that person who lives with the other person as a husband or wife although
they are not legally married to each other.
"Marital status"
This includes the status of being single, married, married but living separately
and apart, divorced, widowed or a de facto spouse.
"Commissioner"
Commissioner is the Commissioner of Equal Opportunity.
"Tribunal"
Tribunal is the Equal Opportunity Tribunal.
Section 4 - Discrimination on the grounds of sex, marital status or
pregnancy
This section describes the circumstances in which a person may be regarded as
discriminating against another person. This section deals specifically with discrimination
on the ground of sex, marital status or pregnancy.
Subsection (1) refers to a situation where less favourable treatment
is given to a person than is given or would be given to another person in the
same or substantially similar circumstances.
Section 5 - Discrimination against employees and prospective employees
This section makes it unlawful for an employer to discriminate against a prospective
employee or an employee on the ground of sex, martial status or pregnancy, in
the arrangements for selecting persons for employment or in the terms or conditions
on which employment is offered.
Subsection (2) deals with discrimination in the workplace in
relation to employees, including denial of access to promotion, the dismissal
of the employee or subjection to other detriment.
Subsection (3) sets out the exception in relation to employment
in a private household, or to employment by a private educational authority.
Subsections (4) and (5) also contain exceptions in relation to
employment in a private household, or to employment by a private educational authority.
Subsection (6) sets out the benefits which are outside the scope
of subsection (2). These include benefits which are regulated by the contract
of employment, certain benefits which are provided to the public by that employer,
but subsection (2) will apply if the provision to the employee
differs in a material respect from the provision to his other employees, or if
the provision in question is regulated by a contract of employment or if the benefits
etc. relate to training.
Subsection (7) exempts from unlawful discrimination, the dismissal
of a woman who is pregnant if the woman was pregnant at the date she applied for
employment or the date she was interviewed unless at that date, the woman did
not know or could not reasonably have known that she was pregnant.
Section 6
This section sets out exceptions where sex or marital status is a genuine occupational
qualification.
Subsection (1) sets out the situations, i.e. where the position
requires a married couple; where the position is for the purpose of an organised
religion and is limited to one sex so as to comply with the doctrines; or where
being a man is a genuine occupational qualification for the job.
Subsection (2) describes the circumstances in which being a man
or woman is a genuine occupational qualification for the job.
Section 7
This section makes it unlawful for a firm consisting of six or more partners or
six or more persons proposing to form a partnership, to discriminate against a
woman on the ground of sex, marital status or pregnancy.
Subsections (2) and (3) set out the exceptions.
Section 8
This section deals with unlawful discrimination by organisations of employers,
trade unions or other organisations.
Section 9
This section deals with unlawful discrimination by an authority or body that is
empowered to confer, renew, extend, revoke or withdraw an authorisation or qualification
that is needed for, or facilitates the practice of a profession, the carrying
on of a trade or the engaging in, of an occupation.
Section 10
This section deals with unlawful discrimination by vocational training bodies.
Subsection (3) provides that a breach is not committed by an
educational establishment maintained wholly or principally for students of one
sex.
Section 11
This section deals with employment agencies.
Subsection (2) excludes from the section employment which the
employer could lawfully refuse to offer a person.
Subsection (3) provides that an employment agency is exempt from
liability if it proves that it relied on a statement made by an employer to the
effect that the agency's action would not be unlawful by reason of the operation
of subsection (2) and that it was reasonable to rely on that
statement.
Subsection (4) deals with the offence of recklessly or knowingly
making a statement which is false or misleading and provides for a penalty on
occupation.
Sections 12-14
These sections deal with unlawful discrimination against persons in education,
in connection with the provision of goods or services or facilities, and in relation
to accommodation.
Section 15
This section deals with discrimination by subterfuge. It provides that a where
a requirement or condition which is not apparently in contravention of any provision
of the Act but has the effect of giving preference to a person of a particular
sex or marital status in a situation where such preference would be unlawful,
the imposition of the condition or requirement shall be unlawful unless it is
proved that there was good reason for its imposition and that this is not a subterfuge
to avoid complying with the Act.
Section 16
This section makes it unlawful for any person to publish or display or cause the
publication or display of any advertisement or notice which indicates or could
reasonably be understood as indicating an intention to commit a breach of Part
III or IV.
Subsection (2) exempts the use in advertising for employment,
of any term which in its generally accepted usage is not taken to refer exclusively
to any particular sex.
Subsection (3) exempts the publisher of an advertisement from
liability if he proves that it was published in reliance on a statement by the
person who caused the publication to the effect that it would not be unlawful
by virtue of subsection (2), and that it was reasonable to rely
on the statement.
Subsection (4) makes it an offence to knowingly or recklessly
make a false or misleading statement and provides for a penalty on conviction.
Section 17
This section makes it unlawful for a person to ask a person to provide information
that would not in the same circumstance be required of other persons of a different
sex or marital status or persons who are not pregnant.
Subsection (2) excludes from this provision a request or requirement
for a person to provide information concerning that person's medical history,
being information relating to a medical condition that affects persons of a particular
sex only, or a request for a pregnant woman to provide medical information concerning
her pregnancy.
Sections 19, 19, 20 and 21 contain the general exceptions
to the provisions of the Act with regard to unlawful discrimination. These exceptions
relate to charities, voluntary bodies, religious bodies and educational institutions
established for religious purposes.
Section 22 provides for the appointment of a Commissioner
of Equal Opportunity.
Section 23 sets out the grounds on which the Commissioner's
appointment will be terminated.
Section 24 provides for the appointment of public officers
to assist the Commissioner in the performance of his functions.
Section 25
This section sets out the functions of the Commissioner which are concerned with
the elimination of discrimination on the grounds mentioned in the Act and promoting
recognition and acceptance of the principle of equality of men and women.
Section 26
This empowers the Minister to refer a matter to the Commissioner in relation to
a law or proposed law that conflicts with the Act or that may give rise to such
conflict. The Minister may also refer a practice, alleged practice or proposed
practice of any person or class of persons that poses similar problems.
Section 27
This section requires the Commissioner to undertake periodic reviews of laws,
governmental practices and policies, in order to identify circumstances where
discrimination occurs and to report on the findings to the Minister.
Section 28
This section provides for the lodging of complaints alleging contravention of
a provision of the Act. A complaint must be in writing and may be lodged with
the Commissioner by or on behalf of the aggrieved person or by a trade union of
which that person is a member.
A complaint may also be in relation to the refusal or neglect of a person to obey
or comply with an order of the Tribunal.
Section 29
This section requires the Commissioner to investigate each complaint lodged.
Section 30
This section permits the Commissioner to apply to the Tribunal for an interim
order. This application may be made at any time after a complaint is lodged and
before it is dismissed by the Commissioner, or resolved by conciliation or referred
to the Tribunal.
Section 31
The Commissioner is empowered to obtain information or request documents relevant
to an inquiry. The Commissioner must give written notice to the person required
to give the information or produce the documents.
Section 32
This section empowers the Commissioner to direct persons to attend a conference
for the purpose of inquiring into a complaint and endeavouring to settle the matter
by conciliation under Section 36.
Section 33
This section provides for the holding of the conference.
Section 34
The Commission is empowered to dismiss a complaint which he considers frivolous,
vexatious, misconceived or lacking in substance. If he decides to dismiss a complaint
the Commissioner must give the reasons and he must advise the complainant that
the matter may be referred to the Tribunal.
Section 35
A complainant who is notified that the complaint is dismissed may require the
Commissioner to refer the matter to the Tribunal.
Section 36
This section provides for the resolution of a complaint by conciliation.
Section 37
A complainant or respondent may appear personally or may be represented in conciliation
proceedings by an agent or by counsel.
Section 38
This section provides for the reference of the complaint to the Tribunal. This
is required where the Commission considers that the matter cannot be resolved
by conciliation or where the efforts to resolve it by conciliation have failed,
or where, in the Commissioner's opinion, the nature of the complaint warrants
reference to the Tribunal.
Section 39
The Commissioner is required to submit an annual report of his activities.
Sections 40-48
Provide for the establishment of the Equal Opportunity Tribunal, the appointment
and term of office of the members, the appointment of chairman and deputy chairman,
the appointment of deputy members, decisions of the Tribunal and the appointment
of a Registrar.
Section 49
The Tribunal is obliged to hold an inquiry into each complaint referred to it
and the Minister is empowered to refer any matter to the Tribunal for inquiry
as a complaint.
Sections 50-52 provide for certain procedural matters.
Section 55
This section describes the circumstances under which a complaint may be dealt
with as a representative complaint.
Sections 56 and 57 provide for matters of procedure relating
to representative complaints and ordinary complaints.
Section 58
This section enables the Tribunal to resolve complaints by conciliation and to
take necessary steps to effect amicable settlements.
Section 59
This provides that for the purpose of an inquiry, the Tribunal is not bound by
rules of evidence. The tribunal is required to act according to equity, good conscience
and the merits of the case without regard to technicalities and legal forms, and
is empowered to give directions aimed at reducing costs and achieving a prompt
hearing.
Section 60 provides that an inquiry shall be held in public
but the Tribunal is empowered, where it considers appropriate, that a private
hearing be held.
Section 61 provides that the publication of evidence may be prohibited
while Section 62 deals with the burden of proof where it is alleged
that conduct is excepted from the Act.
Section 63
This section empowers the Tribunal to dismiss a complaint that it considers frivolous,
vexatious, misconceived, lacking in substance or where it considers that for any
other reason the complaint should not be entertained.
Section 64 empowers the Tribunal to grant an interim order.
Section 65
This section sets out the decisions that may be made by the Tribunal in relation
to an inquiry. The Tribunal may dismiss a complaint but where it finds the complaint
substantiated it may order the respondent to pay damages to the complainant, order
the cessation of the offending conduct, order the respondent to do what is necessary
to redress the complainant's loss or damage, declare void any agreement made in
contravention of the Act, or the Tribunal may decline to take any further action
in the matter.
Section 66
The general rule is that each party to an inquiry shall pay his own costs but
the Tribunal is given the discretion to make such order as to costs as it sees
fit.
Section 67
Where the Tribunal orders any amount to be paid, it may be registered in a court
as a judgement debt.
Section 68
It is an offence to refuse or fail to obey or comply with an order of the Tribunal.
Section 69
If the Tribunal does not state its reasons for any decision made by it in relation
to an inquiry, a party may request such decision and the Tribunal is obliged to
comply with that request.
Section 70 provides for authentication of documents.
Section 71
Judicial notice shall be taken of the signature of the chairman or the registrar
on a document issued by the Tribunal.
Section 72
This section provides for appeals to the Court of Appeal on a point of law by
a party aggrieved by a decision or order of the Tribunal.
Section 73
This section deals with the offence of inducing a person to do an act which constitutes
unlawful discrimination under the Act.
Section 74
This places liability on the employer for anything done in the course of a person's
employment, whether or not it was done with the employer's knowledge or approval.
Subsection (2) provides a defence where the employer is able
to prove that he took all reasonable steps to prevent the unlawful act.
Section 75
This deals with the offence of aiding an unlawful act.
Section 76
It is an offence to obstruct, hinder or resist the Commissioner or an officer
of the Commissioner, a member of the Tribunal or the Registrar in the exercise
of a function under the Act.
Section 77
Persons who are so directed are obliged to attend conciliation proceedings and
conferences and a penalty is provided for non-attendance.
Sections 78 and 79
It is an offence to refuse to furnish information or to make false or misleading
statements.
Section 80
The Tribunal, the members thereof, the Commissioner or a person acting under the
direction of the Tribunal or the Commissioner are protected from suit in respect
of acts done in good faith in the performance of functions under the Act.
Section 81
The Commissioner, members of the Tribunal and members of the Commissioner's staff
are required to keep confidential information acquired in the exercise of functions.
Section 82
This provides for the furnishing of information stored by computer or similar
equipment.
THE EMPLOYMENT (EQUAL OPPORTUNITY AND TREATMENT)
ACT, 1991
(Act of 1991)
ARRANGEMENT OF SECTIONS
PART I - PRELIMINARY
1. Short title
2. Objects
3. Interpretation
PART II - UNLAWFUL DISCRIMINATION
4. Discrimination on the grounds of sex, marital status or pregnancy
PART III - MATTERS RELATING TO EMPLOYMENT
5. Discrimination against applicant and
employees
6. Exceptions where sex or marital status is genuine occupational qualification
PART IV - DISCRIMINATION BY OTHER BODIES
7.
Partnerships
8. Professional or trade organisations
9. Qualifying bodies
10. Vocational training bodies
11. Employment agencies
PART V -
DISCRIMINATION IN OTHER AREAS
12.
Education
13. Goods, services and facilities
14. Accommodation
15. Discrimination by subterfuge
16. Advertisement
17. Application forms etc.
PART VI - GENERAL EXCEPTIONS
18. Charities
19. Voluntary bodies
20. Religious bodies
21. Educational institutions established
for religious purposes
PART VII - COMMISSIONER FOR EQUAL OPPORTUNITY
22. Appointment of Commissioner
23. Vacation of office
24. Staff
25. General functions of the Commissioner
26. Reference by Minister to Commissioner
27. Reviews of legislation etc.
28. Making of complaints to Commissioner
29. Investigation of complaint by
Commissioner
30. Application for interim order
31. Power to obtain information and
documents
32. Directions to attend conference
33. Conference
34. Commissioner may dismiss certain
complaints
35. Reference of complaint to Tribunal at
request of complainant
36. Resolution of complaint by
conciliation
37. Representation in conciliation
proceedings
38. Reference of complaints to the
Tribunal
39. Annual report
PART
VIII - THE EQUAL OPPORTUNITY TRIBUNAL
40. Establishment of Tribunal
41 Term of office
42. Remuneration
43. Vacation of office
44. Removal from office
45. Action chairman
46. Deputy members
47. Decisions of Tribunal
48. Registrar of Tribunal
49. Functions if Tribunal
50. Single inquiry into several complaints
51. Joinder of parties
52. Notice of inquiry and rights of
parties at inquiry
53. Parties
54. Officer assisting the Tribunal
55. Matters to be considered in
determination of representative complaint
56. Amendment of complaint by Tribunal
57. Ordinary complaint not precluded by
representative complaint
58. Resolution of complaint by
conciliation
59. Evidence
60. Inquiries may be held in private
61. Tribunal may prohibit publication of
evidence
62. Proof of exceptions
63. Tribunal may dismiss certain complaint
64. Interim order
65. Decisions of the Tribunal
66. Costs
67. Recovery of amounts ordered by
Tribunal
68. Compliance with order of Tribunal
69. Reasons for Tribunal's decision
70. Authentication of documents
71. Judicial notice
72. Appeals
PART IX - GENERAL
73. Pressure to discriminate
74. Liability of employers and principals
75. Aiding unlawful acts
76. Obstruction
77. Failure to attend conciliation
proceedings or conference
78. Failure to furnish information
79. False or misleading information
80. Protection from civil action
81. Non-disclosure of private information
82. Information stored otherwise than in
written form
Model Legislation on Equality for Women in
Employment
AN ACT to Promote Equality of Opportunity and Treatment in Employment
and other areas and to provide remedies in respect of discrimination on the grounds
of sex, marital status or pregnancy.
ENACTING CLAUSE
PART I - PRELIMINARY
Short title
1. This Act may be cited as Equal Opportunity and Treatment Act.
Objects
2. The objects of this Act are -
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(1) to give effect
to certain provisions of the Convention on the
Elimination of All Forms of Discrimination Against
Women;
(2) to eliminate, as far as possible, discrimination
against persons on the grounds of sex, marital
status or pregnancy in employment;
(3)to promote recognition and acceptance of the
principle of equality of the sexes.
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Interpretation
3. In this Act -
"
commission agent" means an agent who is remunerated by commission;
"
commissioner" means the Commissioner of Equal Opportunity
appointed under Section 22;
"
complainant" in relation to a complaint, means a person who
lodges a complaint under this Act;
"
complaint" means -
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(a) a complaint
[(whether or not a representative complaint)]
lodged under Section 28; and
(b) a matter referred to the Tribunal for inquiry
as a complaint under section 40;
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"
contract worker" means a person who performs work for another
person pursuant to a contract between the employer of the first-mentioned person
and that other person;
"
de facto spouse" in relation to a person, means a person of
the opposite sex to the first-mentioned person who lives with the first-mentioned
person as a husband or wife of that person although not legally married to that
person;
"
education authority" means a body of persons administering
an educational institution;
"
educational institution" means a school, college, university
or other institution at which education or training is provided;
"
employee" includes a commission agent and contract worker;
"
employer" includes a principal in relation to a commission
agent or a contract worker'
"
employment" includes -
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(a) part time,
temporary employment and employment under a contract
of service or of apprenticeship;
(b) employment under a contract for services;
(c) engagement as a commission agent;
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"
employment agency" means any person who, whether for payment
or not, assists persons to find employment or assists employers to find employees;
"
functions" includes powers, authorities and duties;
"
man" means a member of the male sex irrespective of age;
"
marital status" means the status or condition of being -
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(a) single;
(b) married;
(c) married but living separately and apart from
one's spouse;
(d) divorced;
(e) widowed; or
(f) the de facto spouse of another person;
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"
principal" means -
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(a) in relation
to a commission agent, a person for whom work
is done by that commission agent;
(b) in relation to a contract worker, a person
for whom a contract worker performs work otherwise
than under a contract of employment;
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"
representative complaint" means a complaint lodged under section
30(3) by a person on that person's own behalf or on behalf of other persons or
both, and which is treated by the Tribunal as a representative complaint;
"
respondent" in relation to a complaint, means the person who
is, or each of the persons who are, alleged to have done the act to which the
complaint refers;
"
Tribunal" means the Equal Opportunity Tribunal established
under Section 40;
"woman" means a member of the female sex irrespective of age.
PART II - UNLAWFUL DISCRIMINATION
Discrimination on the grounds of sex, marital status or pregnancy
4.(1) For the purposes of this Act, a person discriminates against another person
on the grounds of sex, marital status or pregnancy if -
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(a) by reason
of sex, marital status or pregnancy; or
(b) in the case of discrimination on the ground
of sex, by reason of a characteristic that appertains
generally or is generally imputed to persons of
the opposite sex,
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the person in the same or substantially similar circumstances treats that other
person less favourably than the person treats or would treat a person of the opposite
sex, a person of a different marital status or a person who is not pregnant.
(2) For the purposes of subsection (1), but without limiting the generality of
that subsection, the fact that a woman is or may become pregnant is a characteristic
that appertains generally to women.
(3) For the purposes of this section, a person discriminates against another person
on the grounds of sex, marital status or pregnancy if the person requires that
other person to comply with a requirement or condition -
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(a) with which
a substantially higher proportion of persons of
the opposite sex or, persons of a different marital
status or persons who are not pregnant is able
to comply;
(b) which is not reasonable having regard to the
circumstances of the case; and
(c) which is to the detriment of the person discriminated
against because that person cannot comply with
it.
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PART III - MATTERS RELATING TO EMPLOYMENT
Discrimination against applicant and employees
5. (1) It is unlawful for any person who is an employer or any person acting or
purporting to act on behalf of a person who is an employer, in relation to employment
of any other person by the employer, to discriminate against that other person
on the grounds of her sex, marital status or pregnancy -
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(a) in the arrangements
made for the purpose of determining who should
be offered that employment;
(b) in determining who should be offered employment;
(c) in the terms or conditions on which employment
is offered.
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(2) It is unlawful for an employer to discriminate against an employee on the
grounds of sex, marital status or pregnancy -
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(a) in the terms
or conditions of employment afforded to that employee
by the employer;
(b) by denying access, or limiting access to opportunities
for promotion, transfer or training, or to any
other benefits, facilities or services associated
with employment;
(c) by dismissing the employee or
(d) by subjecting the employee to any other detriment.
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(3) Subsections (1) and (2) do not apply to employment -
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(a) for the purposes
of a private household; or
(b) by a private educational authority.
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(4) Subsections (1)(c) and (2) do not apply to provision in relation to death
or retirement.
(5) Subsection (1)(c) does not apply to any provision for the payment of money
which, if the person in question were given the employment, would be included
(directly or by reference to a collective agreement or otherwise) in the contract
under which the person was employed.
(6) Subsection (2) does not apply -
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(a) to benefits
consisting of the payment of money when the provision
of those benefits is regulated by the person's
contract of employment;
(b) to benefits, facilities or services of any
description if the employer is concerned with
the provision (for payment or not) of benefits,
facilities or services of that description to
the public, or to a section of the public including
the person in question, unless -
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(i) the provision
differs in a material respect from the provision
of the benefits, facilities or services by the
employer to employees;
(ii) the provision of the benefits, facilities
or services to the person in question is regulated
by the contract of employment; or
(iii) the benefits, facilities or services relate
to training.
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(7) Nothing is subsection (2)(c) renders unlawful discrimination by an employer
against a woman on the ground of her sex in respect of the dismissal by an employer
of a woman who is pregnant -
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(a) if at the
date on which the woman applied to the employer
for employment; or
(b) where the employer interviewed the woman in
relation to her application for employment, at
the date of the interview, the woman was pregnant,
unless, at that date, the woman did not know and
could not reasonably be expected to have known
that she was pregnant.
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Exceptions where sex or marital status is genuine occupational qualification
6. (1) Nothing in Section 5 shall apply to preferential treatment based on sex
or marital status where -
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(a) the position
requires a married couple;
(b) the position is for the purposes of an organised
religion and is limited to one sex so as to comply
with the doctrines or rules of the religion or
to avoid offending the religious susceptibilities
of its adherents;
(c) being a man or a woman is a genuine occupational
qualification for the job.
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(2) For the purposes of this Act, being a man or a woman is a genuine occupational
qualification for a job only where -
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(a) the essential
nature of the job calls for a man or a woman for
reasons of physiology (excluding physical strength
or stamina) or, in dramatic performances or other
entertainment, for reasons of authenticity, so
that the essential nature of the job would be
materially different if carried out by a person
of the opposite sex; or
(b) the job needs to be held by a man or woman
to preserve decency or privacy because - |
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(i) it is likely
to involve physical contact with persons of the
same sex in circumstances where those persons
might reasonably object to its being carried out
by a person of the opposite sex; or
(ii) the holder of the job is likely to do work
in circumstances where persons of the same sex
might reasonably object to the presence of a person
of the opposite sex because they are in a state
of undress or are using sanitary facilities;
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(c) the nature
or location of the establishment makes it impracticable
for the holder of the job to live elsewhere than
in premises provided by the employer and - |
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(i) the only premises which
are available for persons holding that kind of
job are occupied or normally occupied, by persons
of the same sex and are not equipped with separate
sleeping accommodation and sanitary facilities
for persons of the opposite sex ; and
(ii) it is not reasonable to expect the employer
either to equip those premises with such accommodation
and facilities or to provide other premises for
persons of the opposite sex; or
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(d) the nature
of the establishment, or of the part of it with
which the work is done, requires the job to be
held by a person of the particular sex because
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(i) it is, or is part of,
a hospital, prison or other establishment for
persons requiring special care, supervision or
attention;
(ii) those persons are all of the same sex (disregarding
any person of the opposite sex whose presence
is exceptional); and
(iii) it is reasonable, having regard to the essential
character of the establishment or that part, that
the job should not be held by a person of the
opposite sex; or |
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(e) the holder of the job provides
individuals with personal services promoting their
welfare or education, or similar personal services,
and those services can most effectively be provided
by a person of a particular sex; or
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(f) the job needs
to he held by a person of a particular sex because
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(i) of restrictions imposed
by the laws regulating the employment of persons
of a particular sex; or
(ii) it is likely to involve the performance of
duties in a country whose laws or customs are
such that the duties could not, or could not effectively,
be performed by a person of a particular sex.
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PART IV - DISCRIMINATION BY OTHER BODIES
Partnership
7. (1) It is unlawful for a firm consisting of six or more partners or for six
or more persons proposing to form themselves into a partnership, to discriminate
against any person on the grounds of sex, marital status or pregnancy -
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(a) in the arrangements
they make for the purpose of determining who should
be offered a position as partner in the firm;
(b) by refusing or deliberately omitting to offer
that position to that person;
(c) in the terms on which they offer that position
to that person; or
(d) in a case where that person already holds
that position -
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(i) by denying
or limiting access, to any benefit arising from
membership of the firm;
(ii) by expelling that person from the firm or
subjecting that person to any other detriment.
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(2) Subsections (1)(a) and (b) do not apply to a position as a partner where,
if it were employment, being a woman would be a genuine occupational qualification
for the job.
(3) Subsections (1)(c) and (d) do not apply to provision made in relation to death
or retirement.
Professional or trade organisations
8. (1) This section applies to an organisation of employers, to trade unions and
other organisations of employees or to any other organisation whose members carry
on a particular profession or trade for the purpose of which the organisation
exists.
(2) It is unlawful for an organisation to which this section applies to discriminate
against a person on the grounds of sex, marital status or pregnancy -
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(a) by refusing
or failing to accept that person's application
for membership, or
(b) in the terms on which it is prepared to admit
that person to membership; or
(c) in the case of a person who is a member of
the organisation -
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(i) by denying
or limiting access to any benefits, facilities
or services provided by the organisation;
(ii) by depriving that person of membership or
varying the terms of membership;
(iii) by subjecting that person to any other detriment.
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Qualifying bodies
9. (1) It is unlawful for an authority or body that is empowered to confer, renew,
extend, revoke or withdraw an authorisation or qualification that is needed for
or facilitates the practice of a profession, the carrying on of a trade or the
engaging in of an occupation, to discriminate against a person on the grounds
of sex, marital status or pregnancy -
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(a) by refusing
or failing to confer, renew or extend the authorisation
or qualification;
(b) in the terms or conditions on which it is
prepared to confer the authorisation or qualification
or to renew or extend it; or
(c) by revoking or withdrawing the authorisation
or qualification or varying the terms or conditions
upon which it is held.
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(2) In this section "authorisation or qualification" includes recognition,
registration, enrolment, approval and certification.
Vocational training bodies
10. (1) This section applies to -
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(a) any association
which comprises bodies employers and has as its
principal object, or one of its principal objects,
affording their employees access to training facilities;
(b) any other person recognised as providing facilities
for training for employment.
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(2) it is unlawful for a person to whom this section applies to discriminate,
on the grounds of sex, marital status or pregnancy, against a person who is seeking
or undergoing training which would help to fit that person for any employment
-
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(a) in the terms
on which that person is afforded access to training
courses or other facilities;
(b) by refusing or deliberately omitting to afford
such access to that person; or
(c) by terminating that person's training.
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(3) An educational establishment maintained wholly or principally for students
of one sex or the authority responsible for the control of any such establishment,
does not commit a breach of this section by refusing to afford access to a person
of the opposite sex to its facilities.
Employment agencies
11. (1) It is unlawful for an employment agency to discriminate against a person
on the grounds of sex, marital status or pregnancy -
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(a) by refusing
to provide that person with any of its services;
(b) in the terms on which it offers to provide
that person with any of its services; or
(c) in the manner in which it provides that person
with any of its services.
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(2) This section does not apply if the discrimination only concerns employment
which the employer could lawfully refuse to offer that person.
(3) An employment agency shall not be liable under this section if it proves -
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(a) that it acted
in reliance on a statement made to it by an employer
to the effect that, by reason of the operation
of subsection (2), its action would not be unlawful,
and
(b) that it was reasonable for it to rely on the
statement.
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(4) Any person who knowingly or recklessly makes a statement referred to in subsection
(3)(a) which is false or misleading in a material respect commits an offence and
it is liable on summary conviction to a fine not exceeding $[ ].
PART V -
DISCRIMINATION IN OTHER AREAS
Education
12. (1) It is unlawful for an educational authority to discriminate against a
person on the ground of sex, marital status or pregnancy -
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(a) by refusing
or failing to accept that person's application
for admission as a student; or
(b) in the terms or conditions on which it is
prepared to admit that person as a student;
(c) where the person is a student at an educational
institution -
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(i) by denying
or limiting her access to any benefit provided
by the authority;
(ii) by expelling or subjecting the student to
any other detriment.
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(2) Nothing in subsection (1) applies to or in respect of a refusal or failure
to accept a person's application for admission as a student at an educational
institution that is conducted solely for students of the opposite sex.
Goods, services and facilities
13. It is unlawful for a person who, whether for payment or not, provides goods
and services, or makes facilities available, to discriminate against a person
on the ground of her sex, marital status or pregnancy -
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(1) by refusing
to provide that person with those goods or services
or to make those facilities available; or
(2) in the manner in which or in the terms and
conditions on which those goods or services are
provided or made available to that person.
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Accommodation
14. (1) It is unlawful for a person, whether as principal or agent, to discriminate
against a person on the grounds of sex, marital status or pregnancy -
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(a) by refusing
that person's application for accommodation;
(b) in the terms or conditions on which accommodation
is offered to that person;
(c) by deferring that person's application for
accommodation or according to that person a lower
order of precedence in any list of applicants
for accommodation;
(d) by denying or limiting access to any benefit
associated with accommodation occupied by that
person;
(e) by evicting that person from such accommodation
or by subjecting that person to any other detriment
in relation to such accommodation.
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(2) Nothing in this section applies to or in respect of -
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(a) the provision
of accommodation in premises if -
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(i) the person
who provides or proposes to provide the accommodation
or a near relative of that person resides, and
intends to continue to reside, on those premises;
and
(ii) the accommodation provided in those premises
is for not more than three persons other than
a person referred to in sub-paragraph (i);
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(b) accommodation
provided by a religious body;
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(c) accommodation
provided by a charitable or other non-profit body
solely for persons of a particular sex.
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Discrimination by subterfuge
15. Where a requirement or condition which is not apparently in contravention
of any provision of this Act, has the effect of giving preference to a person
of a particular sex or a particular marital status, in a situation where such
preference would be unlawful under this Act, the imposition of that condition
or requirement shall be unlawful unless the person imposing it establishes good
reason for its imposition and shows that its imposition is not a subterfuge to
avoid complying with this Act.
Advertisement
16. (1) It shall be unlawful for any person to publish or display, or to cause
or allow to be published or displayed, any advertisement or notice which indicates
or could reasonably be understood as indicating, an intention to commit a breach
of any provision of parts III and IV of this Act.
(2) Nothing in subsection (1) shall prevent the use, in an advertisement for employment,
of any term which, in its generally accepted usage, is not taken to refer exclusively
to any particular sex.
(3) The publisher of an advertisement made unlawful by subsection (1) shall not
be subject to any liability under that subsection if the publisher proves -
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(a) that the
advertisement was published in reliance on a statement
made by the person who caused it to be published
to the effect that the publication would not be
unlawful by reason of the operation of subsection
(2); and
(b) that it was reasonable for the publisher to
rely on the statement.
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(4) A person who knowingly or recklessly makes a statement referred to in subsection
(3) which is false or misleading in a material respect commits an offence and
is liable on summary conviction to a fine not exceeding $[ ].
Application forms etc.
17. (1) Subject to subsection (2), where by virtue of any provision of Part II
or III, it would be unlawful, in particular circumstances, for a person to discriminate
against another person on the grounds of sex, marital status or pregnancy, it
is unlawful for that person to request or require that other person to provide
information (whether by way of completing a form or otherwise) that would not,
in the same or substantially similar circumstances be required or requested of
persons of the opposite sex or of a different marital status or persons who are
not pregnant, as the case may be.
(2) Nothing in subsection (1) renders it unlawful for a person to request or require
-
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(a) a person
to provide information concerning such part of
that person's medical history as relates to medical
conditions that affects persons of a particular
sex; or
(b) a woman who is pregnant to provide medical
information concerning the pregnancy.
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PART VI - GENERAL EXCEPTIONS
Charities
18. Nothing in Parts III and IV affects -
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(a) a provision
of a deed, will or other document, whether made
before or after the coming into operation of this
Act, that confers charitable benefits or enables
charitable benefits to be conferred on persons
of a particular, sex; or
(b) an act that is done in order to give effect
to such a provision.
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(2) In this section "charitable benefits" means benefits for purposes
that are exclusively charitable according to the laws of [ ].
Voluntary bodies
19. Nothing in this Act renders it unlawful for a voluntary body to discriminate
against a person of a particular sex on any one or more of the grounds of discrimination
referred to in this Act, in connection with -
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(a) the admission
of persons as members of that body; or
(b) the provision of benefits, facilities or services
to members of that body.
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Religious bodies
20. Nothing in this Act affects -
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(a) the ordination
of priests, ministers of religion or members of
any religious order;
(b) the training or education of persons seeking
ordination or appointment as priests, ministers
of religion or members of a religious order;
(c) the selection or appointment of persons to
perform duties or functions for the purposes of
or in connection with, or otherwise to participate
in any religious observance or practice; or
(d) any other act or practice of a body established
for religious purposes, being an act or practice
that conforms to the doctrines, tenets or beliefs
of that religion or is necessary to avoid injury
to the religious susceptibilities of adherents
to that religion.
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Educational institutions established for religious purposes
21. Nothing in this Act renders it unlawful for Institutions a persons to discriminate
against another person in any one or more of the grounds of discrimination referred
to in this Act, in connection with the provision of education or training by an
educational institution that is conducted in accordance with the doctrines, tenets,
beliefs or teachings of a particular religion or creed, if the discrimination
is done in good faith in favour of adherents of that religion or creed generally,
but not in a manner that discriminates against a particular class or group of
persons who are not adherents of that religion or creed.
PART VII - COMMISSIONER FOR EQUAL
OPPORTUNITY
Appointment of Commissioner
22. (1) There shall be a Commissioner for Equal Commissioner Opportunity who shall
be appointed by the [Minister] [Governor-General] [ ].
(2) The Commissioner shall and subject to this Part be a person having training
and experience in the field of law, industrial relations or public relations or
a suitable equivalent and hold office for such period not exceeding [seven] years
as specified in the instrument of appointment, and shall be eligible for re-appointment.
(3) A person who is a member of Parliament shall not be appointed as the Commissioner.
(4) The Commissioner shall be entitled to such terms and conditions of service,
including remuneration, travelling and other allowances, as shall be determined
from time to time by the [Minister].
Vacation of office
23. (1) The appointment of the Commissioner shall be terminated if the Commissioner
-
| |
(a) becomes permanently
incapable of performing the duties of the office
of Commissioner;
(b) is nominated for election as a member of Parliament;
(c) becomes bankrupt or compounds with creditors.
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(2) The Commissioner may by notice in writing to the [Governor-General] [Minister]
[ ], resign from the office of Commissioner.
Staff
24. There may be appointed from time to time such public officers as may be required
for the purpose of assisting the Commissioner in the effective performance of
the Commissioner's functions under this Act.
General functions of the Commissioner
25. (1) The Commissioner is hereby empowered to carry out the functions specified
in subsection (2) for the purposes of eliminating discrimination on the grounds
of sex, marital status or pregnancy, and promoting recognition and acceptance
of the principle of equality of the sexes.
(2) For the purposes of subsection (1) the Commissioner may -
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(a) carry out
investigations, research and inquiries relating
to discrimination of the kinds rendered unlawful
under this Act;
(b) acquire and disseminate knowledge on all matters
relating to the elimination of such discrimination,
and the achievement of the principle of equality
of the sexes;
(c) arrange and coordinate consultations, inquiries,
discussions, seminars and conferences;
(d) review from time to time the laws of [ ].
(e) consult with governmental, business, industrial
and community groups in order to ascertain means
of improving services and conditions affecting
persons who are subject to discrimination on the
grounds of sex, marital status or pregnancy;
(f) develop programmes and policies promoting
the achievement of the principle of equality of
the sexes;
(g) do anything conducive or incidental to the
performance of the Commissioner's functions under
this Act.
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Reference by Minister to Commissioner
26. (1) The Minister may refer to the Commissioner or report any matter relating
to -
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(a) a law or
proposed law; or
(b) a practice, an alleged practice or proposed
practice of any person or class of persons,
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that conflicts with or may give rise to conflict with this Act.
(2) The Commissioner shall conduct an examination into any matter referred by
the Minister under subsection (1) and shall report to the Minister the findings
and conclusions of such examination.
Reviews of legislation etc.
27. The Commissioner shall from time to time, order a review of -
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(a) laws in force
in [ ];
(b) governmental policies and practices,
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with a view to identifying circumstances where discrimination on the grounds referred
to in this Act occur, in substance and effect, and shall furnish a report of the
findings of the reviews to the Minister.
Making of complaints to Commissioner
28. (1) A complaint alleging that a person has contravened a provision of this
Act, other than a contravention in respect of which a specific penalty is imposed,
may be lodged in writing with the Commissioner -
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(a) by or on
behalf of the person aggrieved by the alleged
contravention; or
(b) by a trade union of which the person aggrieved
is a member, on behalf of that person.
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(2) A complaint may be lodged in writing with the Commissioner that a person has
refused, neglected or failed to obey or comply with an order of the Tribunal.
(3) A complaint under subsection (1) -
| |
(a) may be lodged
either as a representative complaint or as a complaint
other than a representative complaint.
(b) shall be lodged within 12 months after the
date on which the contravention which is the subject
of the complaint is alleged to have been committed.
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(4) Notwithstanding subsection (3)(b) the Commissioner, on good cause being shown,
may accept a complaint which is lodged more than 12 months after the date conferred
to in subsection (3)(b).
(5) In this section "trade union' means an organisation of employees or an
organisation of employers.
Investigation of complaint by Commissioner
29. The Commissioner shall investigate each complaint lodged under section 28.
Application for interim order
30. The Commissioner, at any time after a complaint is lodged under section 28,
and before the Commissioner dismisses the complaint, resolves it by conciliation
or refers it to the Tribunal under Section 38, as the case may be, may apply to
the Tribunal for an interim order under Section 64 or for the variation or revocation
of any such order.
Power to information and documents
31. (1) Where the Commissioner has reason to believe that a person is capable
of furnishing information or producing documents, as the case may be, relevant
to an inquiry under this Part, the Commissioner may by notice in writing served
on the person require the person, as such place and within such period or on such
date as may be specified in the notice -
| |
(a) to furnish
to the Commissioner, in writing and signed by
the person, or in the case of a body corporate,
by an office of that body, such relevant information
as may be specified in the notice; and
(b) to produce to the Commissioner such relevant
documents (if any) as are specified in the notice.
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(2) Where documents are produced to the Commissioner in accordance with subsection
(1) the Commissioner -
| |
(a) may take
possession of and may make copies of, or take
extracts from, the documents;
(b) may retain possession of the documents for
such period as is necessary for the purposes of
the inquiry to which they relate;
(c) during that period, shall permit a person
who would, if that were not in the Commissioner's
possession, be entitled to inspect any one or
more of the documents, to inspect such of the
documents as that person would be so entitled
to inspect.
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Directions to attend
32. (1) For the purpose of inquiring into a complaint and endeavouring to settle
the matter to which it relates in accordance with Section 36, the Commissioner
may, by notice in writing, direct the persons referred to in subsection (2) to
attend, at a time and place specified in the notice, a conference presided over
by the Commissioner or a person appointed by the Commissioner.
(2) Directions under subsection (1) to attend a conference shall be given -
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(a) to the complainant;
(b) to the person who is alleged to have done the
act which is the subject matter of the complaint;
(c) to any other person who in the opinion of the
Commissioner -
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(i) is likely
to be able to provide information relevant to
the inquiry; or
(ii) whose presence at the conference is likely
to be conducive to the settlement of the matter.
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(3) The Commissioner may, in a notice under section (1) require the person to
produce such documents at the conference as are specified in the notice.
Conference
33. (1) The person presiding at a conference may require a person attending the
conference to produce a document.
(2) A conference shall be held in private and, subject to this Act, shall be conducted
in such manner as the person presiding at the Conference thinks fit.
(3) Subject to subsection (4), a body of persons whether corporate or incorporate,
that is directed to attend a conference shall be deemed to attend if an officer
or employee of that body attends on its behalf.
(4) Except with the consent of the person presiding at the conference -
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(a) an individual
must attend in person; and
(b) a body of persons must be represented by an
officer or employee of that body.
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Commissioner may dismiss certain complaints
34. (1) Where at any stage of the inquiry the Commissioner is satisfied that a
complaint if frivolous, certain vexatious, misconceived, lacking in substance
or relates to an act that is not unlawful by reason of a provision of this Act,
the Commissioner may, by notice in writing addressed to the complainant, dismiss
the complaint.
(2) The Commissioner shall, in a notice under subsection (1), advise the complainant
of -
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(a) the reason
for dismissing the complaint; and
(b) the rights of the complainant under Section
35.
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Reference of complaint to Tribunal at request of complainant
35. (1) Where the Commissioner has given a complainant a notice under Section
34, the complainant may, within 21 days after the receipt of that notice, by notice
in writing served on the Commissioner, require the Commissioner to refer the complaint
to the Tribunal.
(2) On receipt of a notice under subsection (1), the Commissioner shall refer
the complaint to the Tribunal together with a report relating to any inquires
made by the Commissioner into the complaint.
Resolution of complaint by conciliation
36. (1) Where the Commissioner is of the opinion that a complaint (other than
a complaint dismissed by the Commissioner under section 34) may be resolved by
conciliation, the Commissioner shall endeavor to resolve the complaint by conciliation.
(2) The Commissioner may, by notice in writing, require the complainant and the
respondent, or either of them, to appear before the Commissioner, either separately
or together, for the purpose of endeavouring to resolve the complaint by conciliation.
Representation in conciliation proceedings
37. A complainant or respondent in conciliation proceedings before the Commissioner
is entitled to appear personally or by an agent or counsel.
Reference of complaints to the tribunal
38. (1) Without prejudice to the Commissioner's powers complaints under Section
34, where the Commissioner -
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(a) is of the
opinion that a complaint cannot be resolved by
conciliation;
(b) has endeavoured to resolve a complaint by
conciliation but had not been successful in such
endeavours; or
(c) is of the opinion that the nature of a complaint
is such that it should be referred to the Tribunal,
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the Commissioner shall refer the complaint to the Tribunal together with a report
relating to any inquiries made by the Commissioner into the complaint.
(2) Where a complaint is referred to the Tribunal under subsection (1), the Commissioner
shall, if the complainant so requests, either personally, or by counsel or representative,
assist the complainant in the presentation of the complainant's case to the Tribunal.
(3) Evidence of anything said or done in the course of conciliation proceedings
under Section 36 shall (not) be admissible in subsequent proceedings before the
Tribunal.
Annual report
39. (1) The Commissioner shall [at the end of each year] prepare and present to
the Minister a report relating to -
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(a) The Commissioner's
work for that year;
(b) the administration of the functions of the
Commissioner during that year; and
(c) the research undertaken by the Commissioner
during the year and any recommendations that the
Commissioner considers appropriate for the elimination
or modification of legislative provisions that
discriminate against persons on any ground referred
to in this Act.
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PART VIII - THE EQUAL OPPORTUNITY TRIBUNAL
Establishment of Tribunal
40. (1) There is hereby established a Tribunal to be known as the Equal Opportunity
Tribunal.
(2) The Tribunal shall consist of 3 members appointed by the [Governor-General]
[Minister] by instrument in writing.
(3) One of the members of the Tribunal shall be an attorney-at-law and chairman
of the Tribunal and other members shall be persons having training and experience
in the field of industrial relations or public relations or suitably equivalent
training and experience.
(4) A person who is a member of Parliament shall not be appointed as a member
of the Tribunal.
Term of office
41. Each member of the Tribunal shall hold office for such term not exceeding
three years as is specified in the member's instrument of appointment and shall
be eligible for re-appointment.
Remuneration
42. The members shall be paid such remuneration including travelling and subsistence
allowance, as the [Minister] may determine from time to time.
Vacation of office
43. The office of a member of the Tribunal shall become vacant if the member -
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(a) dies;
(b) is not reappointed on the expiration of the
term of office;
(c) resigns by notice in writing to the [Governor-General]
[Minister];
(d) is nominated for election as a member of Parliament;
(e) is removed from office pursuant to Section
44.
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Removal from office
44. The [Governor-General][Minister] may remove a member of the Tribunal, from
office -
| |
(a) if the member
is permanently incapable of performing the members's
duties under this Act;
(b) for neglect of duty; or
(c) for dishonourable conduct.
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Acting Chairman
45. The [Governor-General] [Minister] may at any time appoint a person qualified
for appointment under Section 40(3) to act as chairman during the absence or illness
of the chairman and to exercise the functions of chairman while so acting.
Deputy members
46.(1) The [Governor-General] [Minister] may at any time appoint not more than
four [4] persons as deputy members of the Tribunal to provide a pool of persons
to act as members, upon the request of the chairman, during the absence or illness
of members other than the chairman.
(2) A deputy member who is requested to act as a member shall, while so acting,
have and may exercise the functions of a member.
Decisions of the Tribunal
47. (1) The chairman shall preside at meetings of the Tribunal.
(2) Subject to subsection (3), a decision in which any two members concur shall
be a decision of the Tribunal.
(3) The chairman shall determine any question relating to the admissibility of
evidence, and any other question of law or procedure.
Registrar of Tribunal
48. There shall be a registrar of the Tribunal [who shall be a public officer].
Functions of Tribunal
49.(1)The Minister may refer any matter to the Tribunal for inquiry as a complaint
under this Act.
(2) The Tribunal shall hold an inquiry into each complaint or matter referred
to it under Sections 35(2), 38 and 49.
Single inquiry into several complaints
50. Where the Tribunal is of the opinion that two or more complaints arise out
of the same or substantially the same circumstances or subject matter, it may
hold a single inquiry into those complaints.
Joinder of parties
51. Where, before holding an inquiry or at any stage during the holding of an
inquiry, the Tribunal is of the opinion that a person ought to be joined as a
party to the inquiry, the Tribunal may, by notice in writing to that person, join
the person as a party to the inquiry.
Notice of inquiry and rights of parties at inquiry
52. (1) The Tribunal shall -
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(a) give a party
to an inquiry such notice in such manner as the
Tribunal determines, of the time and place at
which it intends to hold the inquiry;
(b) give each party to an inquiry reasonable opportunity
to call or give evidence, examine or cross-examine
witnesses and make submissions to the Tribunal.
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(2) If a party to an inquiry to whom notice has been given under subsection (1)(a)
fails to attend at the time and place specified for the inquiry, the Tribunal
may hold the inquiry in the absence of that party.
Parties
53. The parties to an inquiry shall be the complainant, the respondent, any person
joined by the Tribunal as a party and any person to whom the Tribunal grants leave
to appear as a party.
Officer assisting at Tribunal
4. (1) The Tribunal may make arrangements with the Commissioner for an officer
of the Commissioner to assist the Tribunal at an inquiry.
(2) An officer referred to in subsection (1) shall, in relation to the inquiry,
be subject to the direction and control of the Tribunal.
Matters to be considered in determination of representative complaint
55. (1) The Tribunal shall not permit a complaint to be dealt with as a representative
complaint unless it satisfied that the complaint is made in good faith as representative
complaint.
(2) For the purposes of subsection (1) the Tribunal shall satisfy itself -
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(a) of all of
the following matter, that is to say -
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(i) the complainant
is a member of a class of persons, the members
of which have been affected or may reasonably
be likely to be affected, by the conduct of the
respondent;
(ii) the complainant has in fact been affected
by the conduct of the respondent;
(iii) the class is so numerous that joinder of
all members is impracticable;
(iv) there are questions of law or fact common
to all members of the class;
(v) the claims of the complaint are typical of
the claims of that class;
(vi) multiple complaints would be likely to produce
varying determinations which could have incompatible
or inconsistent results for the individual members
of the class; and
(vii) the respondent has acted on grounds applying
to the class as a whole;
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(b) that notwithstanding that the
requirements of paragraph (a) have not been satisfied,
the justice of the case demands that the matter
be dealt with and a remedy provided as a representative
complaint. |
Amendment of complaint by Tribunal
56. Where the Tribunal is satisfied -
| |
(a) that the
complaint could be dealt with as a representative
complaint if the class of persons on whose behalf
the complaint is lodged is increased, reduced
or otherwise altered, the Tribunal may amend the
complaint so that it can be dealt with as a representative
complaint;
(b) that the complaint has been wrongly made as
a representative complaint, the Tribunal may amend
the complaint by removing the names of the persons
or class of persons on whose behalf the complaint
was lodged so that it can be dealt with other
than as a representative complaint.
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Ordinary complaint not precluded by representative complaint
57. Nothing in this Act shall prevent a person from lodging a complaint, other
than as a representative complaint, under Section 28, notwithstanding that the
conduct in respect of which the complaint is lodged has also been the subject
matter of a representative complaint.
Resolution of complaint by conciliation
58. The Tribunal -
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(a) may endeavor,
by all such means as it considers reasonable,
to resolve a complaint by conciliation; and
(b) shall take all such steps as it considers
reasonable to effect an amicable settlement of
a complaint and for this purpose may adjourn an
inquiry at any stage to enable the parties to
negotiate with a view to settling the complaint
by amicable arrangements.
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Evidence
59. For the purposes of any inquiry, the Tribunal -
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(a) shall not
be bound by rules of evidence and may inform itself
on any matter it thinks fit;
(b) shall act according to equity, good conscience
and the substantial merits of the case without
regard to technicalities and legal forms; and
(c) may give directions relating to procedure
that, in its opinion, will enable costs of delay
to be reduced and will help to achieve a prompt
hearing of the matters at issue between the parties.
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Inquiries may be held in private
60. (1) Subject to subsection (2), an inquiry shall be held in public.
(2) The Tribunal may, of its own motion or on the application of a party to that
inquiry, direct that an inquiry, or a part thereof, be held in private if it is
satisfied that such action is appropriate.
Tribunal may prohibit publication of evidence
61. (1) The Tribunal may direct that -
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(a) any evidence
given before it;
(b) the contents of any document produced to the
Tribunal; and
(c) any information that might enable a person
who has appeared before the Tribunal to be identified,
shall not be published, or shall be published
only in such manner, and to such persons, as the
Tribunal may specify.
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(2) Nothing in this section shall be taken to derogate from the Tribunal's powers
under Section 60.
Proof of exceptions
62. Where by any provision of this Act, conduct is excepted from conduct that
is unlawful under this Act or that is contravention of this Act, the onus of proving
the exception in any inquiry lies upon the respondent.
Tribunal may dismiss certain complaints
63. (1) Where, at any stage of an inquiry, the Tribunal is satisfied that a complaint
is frivolous, vexatious, misconceived or lacking in substance, or that for any
other reason the complaint should not be entertained, it may dismiss the complaint.
(2) Where the Tribunal dismisses a complaint under subsection (1), it may order
the complainant to pay the costs of the enquiry.
Interim order
64. The Tribunal or, where the chairman is of the opinion that it is expedient
that the chairman alone should exercise the functions of the Tribunal under this
section the chairman, may on the application of the Commissioner under Section
30, or on the application of a party to an inquiry at any time after the lodging
of the complaint into which that inquiry is held, make an interim order to preserve
-
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(a) the status
quo between the parties to the complaint;
or
(b) the rights of the parties to the complaint,
pending determination of the matter that is the
subject of the complaint.
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Decisions of the Tribunal
65. After holding an inquiry, the Tribunal may -
(1) dismiss the complaint to which it relates;
(2) find the complaint substantiated and do any one or more of the following:
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(a) except in
respect of a representative complaint or a matter
referred to the Tribunal by the Minister under
Section 49(1), order the respondent to pay to
the complainant damages of such amount as the
Tribunal specifies by way of compensation for
any loss or damages suffered by reason of the
respondents's conduct;
(b) make an order enjoining the respondent from
continuing or repeating any conduct rendered unlawful
by this Act;
(c) except in respect of a representative complaint
or a matter referred by the Minister under section
49(1), order the respondent to perform any reasonable
act or course of conduct to redress any loss or
damage suffered by the complainant;
(d) make an order declaring void in whole or in
part and either ab initio or from a specified
time, any contract or agreement made in contravention
of this Act.
(e) decline to take any further action in the
matter.
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Costs
66. (1) Except as provided by Section 63 (2), and subsection (2) of this Section,
each Section, each party to an inquiry shall pay the party's own costs.
(2) Where the Tribunal is of the opinion in a particular case that the circumstances
so warrant, the Tribunal may make such order as to costs and security of cost,
whether by way of interim order or other wise, as it thinks fit.
Recovery of amounts ordered by Tribunal
67. Any amount ordered to be paid by the Tribunal may be registered as a judgement
debt in a court of competent jurisdiction.
Compliance with order of Tribunal
68. A person who refuses or fails to obey or comply with an order of the Tribunal
under Section 65(2)(b) and (c) or an interim order of the Tribunal commits an
offence and is liable on conviction to a fine
(1) in the case of an individual, to a fine not exceeding $[ ].
(2) in the case of a body corporate, to a fine not exceeding $[ ].
Reasons for Tribunal's decision
69.(1) Where the Tribunal does not state its reasons for any decision or order
made in relation to an inquiry, a party thereto may, by notice in writing to the
Tribunal within 7 days after the date of the decision or order, require the Tribunal
to stage its reasons.
(2) The Tribunal shall, within 14 days after receipt of the notice referred to
in subsection (1), state its reasons for the decision or order to which the notice
relates.
Authentication of documents
70. Every document requiring authentication by the Tribunal may be sufficiently
authenticated if it is signed by the chairman or the registrar.
Judicial notice
71. Judicial notice shall be taken of the signature of the chairman or the registrar
when appearing on a document issued by the Tribunal.
Appeals
72. (1) A party aggrieved by a decision or an order of the Tribunal may appeal
to the Court of Appeal on a question of law -
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(a) except as
provided in paragraph (b), within 21 days after
the date of the decision or order; or
(b) where a notice has been served on the Tribunal
under Section 69(1), within 21 days after the
date on which the Tribunal states its reasons
for that decision or order under Section 69(2).
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(2) An appeal shall be made in accordance with rules of court.
(3) The Court of Appeal may in a particular case, extend the time within which
an appeal may be commenced under subsection (1).
(4) The Court of Appeal shall hear and determine the question of law arising on
the appeal and may -
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(a) remit the
Court's decision on that question to the Tribunal;
(b) make such other order in relation to the appeal
as the Court thinks fit.
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(5) The Tribunal and any member thereof shall not be liable to any costs in respect
of a decision or order of the Tribunal or the appeal.
PART IX - GENERAL
Pressure to discriminate
73. (1) It is unlawful to induce or attempt to induce a person to do any act which
contravenes Part III or IV by -
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(a) providing
or offering to provide the person with any benefit;
or
(b) subjecting or threatening to subject the person
to any detriment. |
(2) An offer or threat is not prevented from falling within subsection (1) because
it is not made directly to the person in question, if it is made in such a way
that the person is likely to hear it.
(3) A person who contravenes subsection (1) commits on offence and is liable on
conviction to a fine not exceeding $[ ].
Liability of employers and principals
74. (1) Anything done by a person in the course of employers and the person's
employment shall be treated for the purposes of this Act as done by the person's
employer as well as by the person, whether or not it was done with the employer's
knowledge or approval.
(2) In proceedings under this Act against any person in respect of an act alleged
to have been done by the person's employee, it shall be a defence for that person
to prove that such persons took such steps as were reasonably practicable to prevent
the employee from doing that act, or from doing acts of that description in the
course of the person's employment.
Aiding Unlawful acts
75. (1) A person who knowingly aids another person to do an act made unlawful
by this Act shall be treated for the purposes of this Act as doing an unlawful
act of like description.
(2) For the purposes of subsection (1) an employee for whose act the employer
is liable under section 73(1) [or would be so liable but for Section 73(2)] shall
be deemed to aid the doing of the act by the employer.
(3) Subsection (1) does not apply to a person if -
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(a) that person
acts in reliance on a statement made by the other
person that, by reason of any provision of this
Act, the act which is aided would not be unlawful;
(b) It is reasonable for the person to rely on
the statement
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(4) A persons who knowingly or recklessly makes a statement referred to in subsection
(3)(a) which is false or misleading in a material respect, commits an offence
and is liable on summary conviction to a fine not exceeding $[ ].
Obstruction
76. (1) A person shall not, without lawful excuse, wilfully obstruct, hinder or
resist the Commissioner, an officer of the Commissioner, a member of the Tribunal
or the registrar, in the exercise or the performance of a function under this
Act.
(2) Any person who contravenes subsection (1) commits an offence and is liable
on summary conviction -
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(a) in the case
of an individual, to a fine not exceeding $[ ];
(b) in the case of a body corporate, to a fine
not exceeding $[ ].
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Failure to attend conciliation proceedings or conference
77. (1) A person who has been directed under Section to attend a conference, or
who has been served with notice under Section 36 to appear before the Commissioner,
shall not, without reasonable excuse, fail or comply with such notice or direction.
(2) A person who contravenes subsection (1) commits an offence and is liable on
conviction -
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(a) in the case
of an individual, to a fine not exceeding $[ ];
(b) in the case of a body corporate, to a fine
not exceeding $[ ].
|
Failure to furnish information
78. (1) A person shall not, without reasonable excuse, refuse or fail, when required
to do so under Section 31 -
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(a) to furnish
information; or
(b) to produce a document. |
(2) A person who contravenes subsection (1) commits an offence and is liable on
conviction to a fine not exceeding $[ ].
False or misleading information
79. A person who furnishes information or makes a statement to the Commissioner
or to any other person exercising or performing functions under this Act, knowing
that the information or statement is false or misleading in a material particular
commits an offence and is liable on conviction -
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(a) in the case
of an individual, to a fine not exceeding $[ ];
(b) in the case of a body corporate, to a fine
not exceeding $[ ].
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Protection from civil action
80. (1) No action, suit or prosecution shall be brought against the Tribunal,
a member thereof, the Commissioner or a person acting under the direction or authority
of the Tribunal or of the Commissioner in relation to an act done or omitted to
be done in good faith in the performance or purported performance of any function
conferred on the Commissioner or the Tribunal.
(2) Where -
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(a) a complaint
had been made to the Commissioner; or
(b) a submission has been made, a document or
information has been furnished, or evidence has
been given to, the Tribunal or the Commissioner,
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no action, suit or prosecution shall be brought in respect of any loss, damage
or injury suffered by a person by reason only of the making of the complaint,
the furnishing of the information or document or the giving of evidence.
Non-disclosure private information
81. (1) A person who is, or has at any time been, the Commissioner, a member of
the Tribunal or a member of the staff of the Commissioner or has at any time been
authorised to perform or exercise any function of the Commissioner or the Tribunal,
shall not, either directly or indirectly, except in the performance of a function
under or in connection with this Act -
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(a) make a record
of, or divulge or communicate to any person, any
information relating to the affairs of another
person, acquired by the first-mentioned person
by reason of that person's office or employment
under or for the purposes of this Act;
(b) make use of any such information; or
(c) produce to any person a document relating
to the affairs of another person furnished for
the purposes of this Act.
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(2) A person who contravenes subsection (1) commits an offence and is liable on
conviction to a fine not exceeding $[ ].
Information stored otherwise than in written form
82. Where information is recorded or stored by means of a mechanical, electronic
or other device, any duty imposed by this Act to produce the document recording
that information shall be construed as a duty to provide a document containing
a clear reproduction in writing of the information.
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