BlueScope Steel ("Bluescope"), a large manufacturer of premium steel products, has won a discrimination exemption allowing it to prioritise the recruitment of female workers to its manufacturing facility in Mornington Peninsula. This follows lively debate in recent years about unequal gender representation in various industries and occupations and whether this is due to unconscious biases, discriminatory hiring practices and other barriers to women entering certain occupations, or whether it is simply a natural reflection of different preferences between genders.
In 2010, Victoria introduced anti-discrimination legislation (the Equal Opportunity Act) with one of its stated objectives being "to eliminate discrimination to the greatest extent possible". To that end, the legislation prohibits many forms of discrimination, including discrimination based on gender. However, it provides that discrimination will not be prohibited if an exemption applies. As such, conduct that might otherwise be considered prohibited discriminatory conduct can be permitted under an exemption.
Earlier this year, BlueScope filed an application with the Victorian Civil Administrative Tribunal ("Tribunal") seeking an exemption from the prohibitions against gender discrimination in the legislation, to allow it to prioritise female appointments to roles at one of its manufacturing facilities, and to use "targeted female only" advertisements for those roles.
According to BlueScope, despite its previous efforts to attract and retain female workers, less than 12% of its workforce are female and it considered it needed to adopt a more proactive approach to improve female representation at all levels within its organisation.
In support of its application, BlueScope said that "unconscious biases and historical practices" had resulted in women being less likely to secure employment in the organisation and that it aimed to improve gender representation in all positions, including manual labour roles, with the ultimate goal being to "level out the playing field to achieve a more diverse and inclusive workforce" that would benefit the organisation and wider community.
Submissions opposing the exemption
As part of the exemption application process, the Tribunal sought submissions from interested parties. Of the 13 written submissions received (mostly from existing employees of the BlueScope, both male and female), 11 strongly opposed the exemption being granted.
The submissions expressed a range of concerns and questions, including:
- concerns about the impact of only employing females without reference to ability, suitability or qualifications;
- concerns about the negative impact this could have on current and future female employees, who might be perceived as being employed based on gender and not ability; and
- questions around the efficacy of trying to achieve a statistical gender parity without understanding the reasons why the gender imbalance might exist and how gender differences might have a role to play.
Other submissions received by the Tribunal supported a diverse and more gender-balanced workforce but did not consider the exemption a suitable means of achieving this outcome.
The Tribunal granted the exemption and said that while it had given weight to the submissions it received, it was satisfied that BlueScope had made clear in its application that all female candidates offered employment would first need to be considered qualified for the position.
The Tribunal accepted that while BlueScope had pursued a number of less restrictive initiatives to increase the number of female employees, these had limited success and the exemption would be a "reasonable and justified" measure to help BlueScope achieve a workforce that better reflected its community.
This case demonstrates that there are legal mechanisms available to employers to implement hiring practices that favour a particular group, even where these practices might ordinarily be considered unlawfully discriminatory.
However, employers should always exercise caution in this area as such actions, even if done in the pursuit of achieving greater equality and other desirable outcomes, could give rise to legitimate complaints of unlawful discrimination.