Sex discrimination exemption for super fund

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Sex discrimination exemption for super fund

An allegation of sex discrimination based on the operation of a pension fund scheme has been dismissed owing to an exemption under the Sex Discrimination Act 1984 (SDA).

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An allegation of sex discrimination based on the operation of a pension fund scheme has been dismissed owing to an exemption under the Sex Discrimination Act 1984(SDA).

The two complainants were married women employed in the WA public service. They were members of a pension scheme administered by the Government Employees Superannuation Board.

The complainants alleged that a provision of the Fund discriminated against them on the basis of their sex. The provision in question dealt with applications by surviving spouses of deceased fund members. The provision provided that, whereas spouses of male fund members had to demonstrate hardship to obtain a benefit, spouses of female fund members simply had to apply.

This provision arose out of the fact that when the pension scheme was introduced, the employment of women in the WA public sector was restricted (ie female employees had to resign when they got married).

In 1987 a new contributory lump sum scheme commenced. A transfer offer was made to members of the old pension scheme, but the complainants refused to transfer to the new scheme because it was not as financially beneficial.

The complainants argued before the Human Rights and Equal Opportunity Commission that the transfer was not a real option for them. The employer, on the other hand, argued that the lump sum scheme offered to the complainants was a legitimate and reasonable alternative, and therefore, the exemption in s41B applied to exclude their claim. The exemption in s41B(1) applies where the person alleging discrimination has been given an option to obtain non-discriminatory benefits.

The Commission agreed that the lump sum scheme was a legitimate non-discriminatory scheme. This was evidenced by the fact that around 80% of pension scheme members accepted the offer to transfer to the new scheme.

The Commission stated that there was no requirement in the legislation that in order for s41Bto be satisfied the discriminatory provisions must be removed or that the member be offered benefits that were otherwise identical or equally attractive. The legislation simply states that an exception will apply where a member of a discriminatory fund is given an option to obtain non-discriminatory benefits (Wylie, Torvaldsen & Torvaldsen v WA Govt Employees Superannuation Board [1996] HREOCA 41 (20 December 1996)).

 
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