ASU's preferential treatment of women not male discrimination

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ASU's preferential treatment of women not male discrimination

The AIRC has rejected a claim that union rules reserving branch executive positions for women are discriminatory on the grounds that preferential treatment for women is the only way to achieve substantive equality in the electoral process.

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The AIRC has rejected a claim that union rules reserving branch executive positions for women are discriminatory on the grounds that preferential treatment for women is the only way to achieve substantive equality in the electoral process.

Background

ASU member William Jacomb applied for leave to appeal a decision made by Deputy Industrial Registrar Nassios which certified alterations to the union’s rules. Mr Jacomb contended that the alterations rendered the rules sexually discriminatory or otherwise contrary to law.

The rules reserve certain proportions of branch positions for women, for example, of the 17 branch executive positions available seven are reserved specifically for women. They also provide for equal representation at the union’s State and national conferences.

Mr Jacomb had unsuccessfully contested an election to fill a casual vacancy for a branch executive position. He appealed against the Registrar’s certification of the rules on the grounds they were contrary to s196(a) of the Workplace Relations Act in that they discriminate against males in contravention of s19 of the Sex Discrimination Act 1984. Mr Jacomb submitted that the rules discriminated against male members of the ASU, and, in particular, against him as a male. He contended that the female membership of the ASU branch was35% and yet the rules reserve 50% of the elected positions for women.

Findings

Senior Deputy President Lacy said he was satisfied that the ASU rule alterations reserving positions specifically for women were contrary to s19 of the SDA when that section is read in isolation. However, he continued, s19 must be read in the context of the SDA as a whole and the rule alterations must be considered in that context.

A 1995 amendment s7D states that special measures may be taken for the purpose of achieving substantive equality. Accordingly, a special measure taken for the purpose of achieving substantive equality is taken not to be discriminatory and any discrimination there might have been is rendered benign.

Senior Deputy President Lacy said that while the SDA did not define 'special measures' he went along with Justice Brennan’s interpretation in Gerhardy v Brown. He said the question that must be determined was whether rules that reserve positions specifically for women advance effective and genuine equality.

'In order to be substantive equality, in my view, it is not merely a question of whether it achieves effective and genuine equality, but rather whether it advances it.'

The senior deputy president said he did not believe a branch election without preferential treatment for women would achieve substantive equality.

He also said that there was no evidence to show that the steps taken by the ASU to redress systemic discrimination against women had resulted in substantive equality.

'In the circumstances, I dismiss the appeal in so far as it is contended that the rules discriminate against males and, in particular, Mr Jacomb. The rules, by virtue of s7D of the SDA, do not contravene s19 of that Act.'

See: Appeal by William Jacomb, AIRC PR943240, (5 February 2004).

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