Each Australian State and Territory has its own anti-discrimination legislation. The types of prohibited discrimination vary but include such grounds as sex, race, family responsibilities and disability. There are also exceptions or exemptions to allow certain activities which would otherwise be discriminatory.
A recent decision by the Queensland Civil and Administrative Tribunal (Downer EDI Mining Pty Ltd (No 2)  QCAT 532) considered an exemption for an equal opportunity measure, a legislative exception to the Anti-Discrimination Act 1991 (QLD). An application was made by Downer EDI, a large mining company, to the tribunal for an exemption to allow it to recruit for 10 women-only entry level positions at five of its open cut mining sites.
Presenting the facts
The information provided by Downer EDI set out a case for why these women-only roles will create greater equal opportunity within a largely male dominated workplace and industry. The recruiting strategy was described as part of a larger gender diversity action plan put in place by the company. Women currently comprise 14% of the workforce and the company has set a target of 25% for 2020. Lesser measures have not, to date, been effective in increasing the number of women at Downer EDI. An employee survey had prompted a number of new initiatives and steps by the company to support their existing female employees and recruit more women. Downer EDI also identified a number of benefits likely to be realised from hiring more female workers including: greater diversity, innovation, and a better safety culture.
Interestingly, the tribunal decided that the measures probably did not satisfy the equal opportunity exception because the 10 positions in isolation (without other broader recruitment measures) did not necessarily promote equal opportunity for women. The tribunal, however, went on to decide there was sufficient material to grant a general exemption. To meet the criteria for a general exemption the tribunal considered the following three matters in light of the information provided by Downer EDI: is it reasonable and appropriate to grant an extension; are there alternative non-discriminatory measures available and is there support for the exemption.
Lesson for employers
This decision demonstrates an example of an application for an exemption under anti-discrimination legislation. The exemption, in this case, allowed the company to implement measures that were designed to create greater gender diversity in their workforce. Employers need to demonstrate the need for the measures, how they are a reasonable way of targeting the existing disparity, and that there is broader support for theirplan.
Sarah Waterhouse, Solicitor, BlandsLaw
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