This employer's exemption to the Equal Opportunity Act sparked controversy
In a recent case, the Victorian Civil and Administrative Tribunal considered an employer’s application for a temporary exemption to provisions in the Equal Opportunity Act 2010.
In January 2021, BlueScope, a global leader in premium branded steel products, applied for a temporary exemption to allow it to prioritise the recruitment of suitably qualified female candidates over equivalent male candidates at its Western Port site.
Western Port in the Mornington Peninsula is BlueScope’s second-largest manufacturing facility. Of the site’s 632 employees, 11.9% are female. BlueScope asserted that this gender imbalance was due to the “unconscious biases and historical practices which result in females being less likely to secure employment even when a process is merit-based”.
The company submitted that it needed to accelerate the representation of female employees at Western Port to ensure its workforce better represents the community in which it operates.
BlueScope has historically employed several initiatives in an attempt to attract more female workers, including implementing a diversity and inclusion plan, using gender-neutral language, and training managers regarding unconscious bias. However, despite this, the company is still below its target of having 20% of its workforce identifying as female by 2023.
Throughout the hearing, BlueScope clarified that it would never employ a person solely because of their gender and reiterated that it would continue to offer employment only to candidates considered suitable. It further submitted that the Equal Opportunity Act s 3(d) makes clear that there may be occasions in which different rules must apply, which may result in temporary inequality, in order to realise substantive equality.
The Tribunal heard submissions from 13 interested parties, most of which were male and female employees of BlueScope. Of these, 11 strongly opposed the exemption. Some raised concerns about the adverse effects an exemption would have on the site’s safety and working relationships. Others submitted that such an exemption would be discriminatory, reprehensible and in breach of the Charter of Human Rights and Responsibilities.
However, the Tribunal accepted BlueScope’s submissions regarding the importance of addressing its persistent gender imbalance. It was also satisfied that the company had already pursued several less restrictive initiatives in an attempt to increase the proportion of its female employees.
With this, the Tribunal was satisfied that BlueScope’s proposed activity was “reasonable and justified” under the Charter and granted the exemption for a period of three years.
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