19 September, 2016
Waite Group (Human Rights) [2016] VCAT 1258
Special measures in anti-discrimination legislation
- State and federal anti-discrimination legislation allows employers in broadly similar terms to take "special measures" for the purpose of achieving substantive equality for particular groups, such as women or older members of the workforce. (Note: The New South Wales position is different – see below.)
- The special measures provisions are directed at groups who have historically experienced discrimination and may require assistance in order to access the same opportunities as other members of the community.
- The anti-discrimination legislation also allows employers to apply for a formal exemption from the requirements of the relevant legislation. However, no exemption is required for actions that fall within the scope of the special measures provisions.
- Some employers have been reluctant to rely solely on the special measures exceptions and instead have applied for a formal exemption in order to confirm that their proposed conduct will not breach the anti- discrimination legislation.
- A recent decision of the Victorian Civil and Administrative Tribunal considered the special measures provisions in the Equal Opportunity Act 2010 (Vic) in the context of an application by an executive recruitment company which wanted to advertise and recommend only female candidates to their clients.
- In Waite Group (Human Rights) [2016] VCAT 1258, tribunal member Anna Dea set out a number of questions that may assist employers to determine whether the special measures provisions are likely to apply or whether an exemption is required. Ms Dea found that the proposed conduct of the Waite Group was a special measure and did not require an exemption.
- Importantly, Ms Dea encouraged organisations considering conduct which may fall within the special measures provisions to make their own assessment of whether the proposed conduct is a special measure. If the organisation considers that it is, Ms Dea recommended that they simply get on with engaging in the conduct rather than commencing legal action that is likely to be costly, time consuming and unnecessary.
What you need to know
- In considering whether proposed conduct is a special measure, employers should first make their own assessment, taking into account the following considerations:
- whether the conduct is directed to members of a group with a particular attribute
- what the purpose of the conduct is and whether it is for the purpose of promoting or realising substantive equality; and
- whether the conduct is to be undertaken in good faith, is reasonably likely to achieve the purpose, is proportionate and is justified.
- If the employer is not satisfied that the conduct is a special measure, an application for an exemption should be made to the relevant body.
- Evidence in support of an exemption application should be provided by individuals who have actual knowledge of the organisation, the background to the decision to engage in the proposed conduct, and the three considerations outlined above.
- While the decision in Waite Group was based on the special measures provision in the Victorian Equal Opportunity Act 2010, the special measures provisions are similar across state and federal legislation other than in New South Wales. With that exception, the guidance provided in Waite Group should assist employers in other states to make an assessment of proposed conduct that may be a special measure.
New South Wales
- The Anti-Discrimination Act 1977 (NSW) allows for some special measures directed at achieving substantive equality for a particular group, but it also requires employers to apply for an exemption if considering such conduct. So the self-assessment approach discussed above is generally not applicable in New South Wales.
MAKING THE CASE: Insights from Geoff Giudice
This decision is designed to provide guidance to employers who may be contemplating introducing special measures to promote substantive equality for employees with particular attributes. A secondary objective is to limit applications for exemption to cases in which they are really necessary. These are admirable objectives and the decision will be provide reassurance in a number of cases. Nevertheless, the possibility exists that where an employer implements special measures without applying for an exemption, the measures might subsequently be found to be discriminatory. Viewed from that perspective the decision does not provide any guarantees and a detailed consideration of the circumstances will always be required before implementation is attempted.
For further information, please contact:
Jane Harvey , Partner, Ashurst
jane.harvey @ashurst.com
