What is gender equality?
The term ‘gender equality’ refers to the circumstance where all genders are able to enjoy the same rights, opportunities, responsibilities and protections.
Despite significant progression, gender inequality still remains a pressing issue in Australia, especially within the workplace.
Accordingly, BlueScope identified that women made up a less than 12% of its onsite workforce and sort to rectify this imbalance. It was submitted that without the exemption, it would take approximately 26 years for BlueScopes’s workforce composition to reflect the local Mornington Peninsula population (of which 51% are female).
Basis for the Application
As a result of the apparent gender inequality of its employees, BlueScope made the exemption Application based on a number of submissions.
Firstly, BlueScope submitted that it is the “unconscious biases and historical practices which result in females being less likely to secure employment even when the process is merit bases”. Further, BlueScope added that by aiming to improve on gender representation in all available positions, particularly traditionally male dominated roles, they would be “level[ing] out the playing field to achieve a more diverse and inclusive workforce” which will in term benefit the entire community.
Those supporting the Application theorized that it could have a transformative effect on employment opportunities, workplace culture, inclusion and the quality of decision-making buy having a workforce accurately representative of the community.
However, the Application did not present without objection. The primary concern raised was that BlueScope may recruit women to fill roles regardless of ability, suitability or qualifications. In the alternative, concern was also raised that the exception may generate the perception that current and future female employees have been employed based purely on their gender, rather than their ability.
This argument was contented by BlueScope, who expressed disappointment regarding this perception; those female employees were/would not be held in the same regard as male colleagues, and that females were employed on a ‘token’ basis purely to meet targets. Alternatively, BlueScope emphasized that they have never, or will ever, employ women on this basis alone and assured that any selection would be made in instances where the individual is equally or more qualified/skilled as their male colleagues.
In considering all submissions in relation to the Application, VCAT member Christopher Thwaites required BlueScope to amend the Application to “make it clear the exempt conduct means all female candidates offered employment must first be considered qualified for the position”. Accordingly, the exemption would “priorities the recruitment of suitably qualified female candidates over equivalent male candidates and advertise specifically for female applicants”.
It was therefore accepted that BlueScope, as the largest employer on the Mornington Peninsula, initiated the Application to address the apparent persistent gender imbalance within its workforce, representing an action justified in the circumstances.
Member Thwaites also recognised that BlueScope intends to use the exception to “address the unequal distribution of power, resources and opportunity between males and females in its community”.
Although the Application by BlueScope sort a five-year exception, a shortened period of three-years was granted on the basis that this should be “sufficient to show the exemption [is] effective and making perceptible and positive impact on the gender balance of the workforce at Western Port”.
This exemption Application brought before the VCAT represents an Employer initiated strategy to address gender inequality in the workplace, specifically within traditionally male dominated roles (and was successful on this basis).
However, an impressionable concern regarding this approach to equality is whether it creates a band aid solution without addressing the core of the issue; by attempting to force statistical gender equality without really understanding, or addressing, the reasons for the gender imbalance in the first place.
Further, there is consideration to be had regarding whether we really can be forced into a neat 50/50 box in relation to all industries, interests and abilities. Or does doing this fail to understand our genuine gender differences, thereby exacerbating the problem.
The topic will always be controversial, but with the success of the Application, time will reveal the nature of the outcome. Further, if it has a positive impact, it is likely other employers will follow suit, creating a significant change in workforce equality.
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The contents of this article are general in nature and is for information purposes only. The content of this article does not constitute legal advice and should not be used as such. Should you require assistance with a specific legal matter, it is recommended that you seek appropriate advice.
Authors Emma Marshall (Lawyer) and Nigel Saines (Principal).
 ‘Gender equality: what is it and why do we need it?’ Vic.gov.au <https://www.vic.gov.au/gender-equality-what-it-and-why-do-we-need-it>.