However, the Act allows seemingly discriminatory practices when they aim to achieve equal opportunity in areas of public life, such as work, goods and services and education.
If an employer wants to increase the intake of female workers into an occupation, trade or profession which is dominated by male employees, an exception under section 31 of the Act enables them to advertise jobs exclusively for women without breaching the Act.
It is up to the employer to prove the exception applies to the advertised positions by showing women are underrepresented in the occupation, trade, or profession the employer is involved in, due to barriers and practices that have favoured men over women.
Similarly, some employers advertise positions for Aboriginal and Torres Strait Islander applicants to ensure they are ‘opportunities to meet their special needs in relation to employment, education, training, welfare or any ancillary benefits.’
These type of exceptions are known as measures intended to achieve equality.
Advertisements which aim to recruit or offer benefits underrepresented groups of people in a particular occupation, education institution or service are not unlawful under the Act.
Similar provisions in the Act allow advertising and recruiting for applicants such as those with family responsibilities, particular sexual orientations, impairment, and age.
Organisations are not obliged to implement measures intended to achieve equality. They are initiatives they can take if they wish to increase their workforce diversity or achieve equality.
Similar provisions exist under Federal anti-discrimination law like the Sex Discrimination Act 1984 (Cth), the Disability Discrimination Act 1992 (Cth), the Age Discrimination Act 2004 (Cth) and the Race Discrimination Act 1975 (Cth).
If organisations wish to do something not covered by an exception under the Act, they may apply to the State Administrative Tribunal (SAT) for an exemption, which is granted to a person or organisation to enable them to do something which would otherwise be unlawful under the Act.
The Commissioner for Equal Opportunity becomes a default respondent in exemption applications. The Commissioner may support the application, oppose it, or leave it up to the SAT to determine whether an exemption should be granted.
Exemption applicants must show that:
- the existing exceptions under the Act do not provide for what they want to do, and
- what they want to do is either in line with the objects of the Act, or necessary and in the public interest.
If you have any questions about a job advertisement, course or service that is only open to a certain cohort of people, you should contact the Equal Opportunity Commission to find out if it is lawful.
If you wish to increase diversity in your organisation, you should contact the Commission for information on how to go about it.
How to contact the Commission
Phone
General enquiries: 9216 3900
Training courses : 9216 3927
Country callers: 1800 198 149
Interpreter service:13 14 50
Website
Office
Albert Facey House
469 Wellington Street
Perth WA 6000
@EOCWA
