People can take positive steps to help disadvantaged groups. These are called 'special measures' in the Equal Opportunity Act 2010. The law makes it clear that these actions are allowed and do not amount to discrimination.
The Victorian Civil and Administrative Tribunal (VCAT) has made a number of decisions about exemption applications under the Act that help to illustrate the types of conduct that it considers a special measure and the evidence required to substantiate a measure.
In each of the following cases, VCAT was satisfied that the requirements for a special measure were met so that the person or organisation could undertake the measure and it would not be considered discrimination. This meant that there was no need for an exemption application to VCAT, and therefore any applications to VCAT were dismissed.
These examples recognise the reality that not all groups have the same access to opportunities. Factors including poverty, geographic isolation, a lack of skills and historic discrimination have disadvantaged particular groups. These groups will often include Aboriginal and Torres Strait Islander peoples, people with disability, culturally and linguistically diverse communities and, in some circumstances, women.
Conducting women-only events for cultural and religious women
The Darebin City Council Youth Services
The council sought an exemption from the Equal Opportunity Act 2010 so that it could host two women-only events, targeting young women within the Darebin community who, due to cultural and religious reasons, would not otherwise have the opportunity to attend mixed gender events. The council also sought an exemption to employ only women for the duration of the two events.
VCAT found that the proposed conduct amounted to a special measure and the conduct was not discrimination, so the application for an exemption was dismissed.
Read more about this Darebin City Council Youth Services case study.
Advertise and employ only Aboriginal people
NECA Education and Careers Limited
NECA, a training organisation, sought to advertise for and employ only Aboriginal candidates in its Warrang Jarri Lian program to address under-employment of the group.
The Tribunal found that this conduct amounted to a special measure.
Read more about this NECA Education and Careers Limited case study.
Parks Victoria wanted to advertise for and employ Aboriginal people to care for Wurundjeri country.
VCAT found that the purpose of the activity was to:
- provide employment opportunities to Aboriginal people
- increase the number of Aboriginal people employed by Parks Victoria
- provide opportunities for connection and care for the Wurundjeri country by its traditional owners
- maintain the culture associated with the country.
VCAT was satisfied that the measure was proportionate because at the time the application was made only 7.6 per cent of Parks Victoria’s workforce was Indigenous.
Read more about this Parks Victoria case study.
Cummeragunja Housing and Development Aboriginal Corporation
Cummeragunja Housing wanted to advertise for and employ Aboriginal people in the positions of mental health worker, Aboriginal health worker, trainee Aboriginal health worker and administration trainee.
VCAT found that the purpose of the activity was to provide employment opportunities for Aboriginal applicants and provide health services to local Aboriginal people in a manner that is culturally appropriate.
At the time of making the application there were almost equal numbers of Aboriginal and non-Aboriginal staff employed at Cummeragunja, while 95 per cent of people using the services were Aboriginal.
These statistics satisfied VCAT that the measures were proportionate.
Read more about this Cummeragunja Housing and Development Aboriginal Corporation case study.
The Ian Potter Museum of Art
The museum wanted to advertise for and employ an Aboriginal person in the role of Vizard Foundation assistant curator to increase the number of Aboriginal people employed by the museum.
VCAT held that the measure was proportionate, as the number of Aboriginal staff was dramatically lower than the number of Aboriginal people in the wider population.
Read more about this Ian Potter Museum of Art case study.
Advertise and employ only women
Waite Group wanted to use the business name "Women’s Search" to advertise and recommend only women as candidates for specific roles in management and boards to meet its employer-clients’ diversity goals.
VCAT was satisfied that the conduct meets each of the requirements of a special measure and therefore the Waite Group will not discriminate in undertaking the conduct.
Read more about this Waite Group case study.
The University of Melbourne (Melbourne School of Engineering)
The University of Melbourne School of Engineering sought to advertise for and employ only women in up to 20 academic roles within the Melbourne School of Engineering over a period of five years to increase women to 25 per cent of its workforce.
VCAT was satisfied that the conduct met the requirements of a special measure and was substantiated by the evidence. VCAT took into account the low representation of women in the school’s academic workforce, the slow increase in the number of women and the modest aim of increasing that representation to 25 per cent.
Read more about this University of Melbourne School of Engineering case study.
AusNet Services Ltd
AusNet sought to advertise and offer eight fully-funded scholarships to female applicants in the discipline of Power Engineering at the School of Engineering at Deakin University and, during the term of the scholarships, offer the successful candidates paid work placements with the University.
VCAT was satisfied that the conduct was a special measure. It found that the conduct was designed to increase female participation in engineering to increase the representation of women in the profession and contribute to a more diverse workplace.
Read more about this AusNet Services case study.
Genovate Consulting sought to target only women for selection and shortlisting to prepare lists for employers who sought to employ women into leadership, management, executive or board level roles.
VCAT was satisfied that the conduct met the requirements of a special measure to address the underrepresentation of women in leadership and management levels.
Read more about this Genovate Consulting case study.
Advertise and recruit only people aged between 18 and 25
Life Experiences Enterprises LTD
Life Experiences Enterprises sought to advertise and employ only people aged between 18 and 25 to perform Elderly Support Services Roles.
VCAT was satisfied that the conduct would amount to a special measure. Evidence was presented that the youth unemployment rate was disproportionate compared to other adults. VCAT was satisfied that the purpose of the measure was to reduce the number of youth unemployed and promote equality in the workforce.
To read more about this Life Experiences Enterprises case study see page 11 of the Waite Group VCAT decision.
Advertise and recruit only people with disabilities
Moonee Valley City Council
The council sought to advertise and employ only people with disabilities for five trainee positions in a cafe established by the council as a social enterprise, in accordance with its Disability Action Plan, to address the under-representation of people with disabilities in the workforce.
VCAT was satisfied that the conduct is a special measure.
Contact us by phone, in person or email to find out more about special measures or to discuss whether your proposed actions meet the test for a special measure. We also have a free interpreter service.