Waite Group – special measure – Jul 2016

The Commission intervened in the Victorian Civil and Administrative Tribunal (VCAT) matter of Waite Group. Waite Group sought an exemption or a declaration of a special measure under section 12 of the Equal Opportunity Act 2010 to enable it to advertise for and recommend as candidates only women for specific roles for the purposes of assisting their clients to meet their diversity goals.

While formal recognition of a special measure is not required under the Act, a number of people seek a declaration of a special measure to give certainty that proposed conduct meets the requirements of a special measure under section 12 of the Act. The Commission intervened in this matter to assist VCAT clarify and provide greater guidance on the requirements necessary to substantiate a special measure.

In finding that the conduct of Waite Group amounted to a special measure under section 12 of the Act, the VCAT decision provides detailed guidance on the requirements for a special measure and the type of evidence which might be relevant to an assessment of how section 12 applies to the proposed conduct.

VCAT noted it is preferable that organisations intending to engage in conduct which may fall within section 12 make their own assessment, and if the organisation is satisfied that the proposed conduct is a special measure they simply get on with engaging in that conduct. VCAT observed that this will save applicants’ time and resources, and also ensure that the purposes of the Act are given effect to without first involving an unnecessary legal process.