ARTC exemption: When discrimination has a positive effect
Published: 15 December 2015
When the Australian Rail Track Corporation received an exemption from the Anti-Discrimination Act and advertised positions for women only, the response was astounding.
Image source: ARTC
The Australian Rail Track Corporation (ARTC) has set an objective of having 30% of its workforce female, but they have had difficulty attracting female applicants for traditionally male jobs.
In the Hunter Valley only 12 % of the workforce is female, and the numbers are much worse for track roles. When track maintenance jobs at the Hunter Valley depot were advertised earlier this year, women were encouraged to apply, but there were only three applications from women.
ARTC then applied to the Anti-Discrimination Board for an exemption from the Anti-Discrimination Act's general prohibition on sex discrimination. They presented a convincing argument to the President of the Board and received the exemption, so they were able to advertise 10 track maintenance roles exclusively to women.
The results were way beyond expectations – they received 400 applications in response to the initial advertisement, and another 100 women have attended an further information session in Muswellbrook. ARTC's general manager for the Hunter region said that the level and quality of responses to the jobs was outstanding.
There are many reasons why an employer may want to target job ads to members of one sex, one race or a particular age group. State anti-discrimination laws include a range of exceptions allowing this to happen in certain cases. The most common of these is where it is a "genuine job requirement" that a person to be a member of a particular group. For example, being an older male may be a genuine job requirement for someone performing a specific role in a play or film.
There are other exceptions in the law to deal with special circumstances. In one Queensland case, Centacare applied for an exemption to recruit male home care workers for what is traditionally a female-dominated workforce.
The organisation delivers support services to people with a disability, and a majority of their clients are male. The clients need personal care such as showering, dressing and personal hygiene and some of them prefer to have a male worker to perform these services.
The Anti-Discrimination Act (Qld) contains an exception for residential domestic services, and the Queensland Civil and Administrative Tribunal decided that there was no need for Centacare to get an exemption to recruit male workers. It found that upholding the personal care and dignity of its clients in their own homes was an appropriate need and aspiration, and being male was therefore a genuine requirement of the job. The result would undoubtedly have been the same in NSW.
In general, you do need an exemption where you want to employ someone from a particular group in a job for which membership of that group is not a genuine job requirement. The ARTC case is an example of this.
You also need an exemption if you want to target a service to one group only – for example a single-sex gym or a welfare service for people from a particular race. You don't need an exemption if the service is provided in a different manner to each group, for example a barber shop versus a hairdresser.
Exemptions are usually granted where the reason for targeting a particular group is to overcome past discrimination or disadvantage, or where you want to provide a service or special needs program for one group in order to help them to achieve equal opportunity - for example computer classes for older people.
In every case, if you are concerned that your plans as an employer or service provider may be a breach of anti-discrimination laws, you should get further information or advice before going ahead. The rules governing exceptions and exemptions are described on the Anti-Discrimination Board's website, and if you think you may need an exemption, you can contact the Board's Legal Officer.
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