Applying Victoria v. Schou: The Approach of VCAT and the Federal Magistrates Court

Abstract

The Supreme Court and Court of Appeal decisions in Victoria v Schou have been widely criticised for taking a narrow approach to indirect discrimination. This article explores the impact of these decisions on a tribunal which is bound to follow them: the Victorian Civil and Administrative Tribunal. A survey of VCAT decisions involving indirect discrimination suggests that the key concepts evident in the appeal decisions do not appear to have penetrated to the tribunal level in Victoria. The approach of VCAT is contrasted with recent decisions of the Federal Magistrates Court where the court has extensively engaged with the principles from Schou, but has failed to reach a settled position on the application of these principles. The article concludes that the inconsistency of approach at the tribunal and appellate court levels is likely to undermine the purposes of the legislation, particularly the impetus provided by the legislation for employers to implement flexible work practices.

Keywords: indirect discrimination, equal opportunity, flexible work practices

JEL Classification: K31