In 2016 ACT Fire and Rescue (ACTFR) commenced a rare recruitment campaign. They wanted to employ 16 new fire fighters and made the decision that, if possible, at least 8 of those new positions would be offered to women.  All the candidates had to pass the same physical fitness and other tests for recruitment.  At the end of the campaign employment was offered to 4 women, and 12 men.

One person, Mr Macca, believed that he was disadvantaged in the process and brought proceedings alleging unlawful discrimination contrary to the Discrimination Act 1991 (ACT).  The matter was heard in the ACT Civil and Administrative Tribunal – Macca v ACT represented by the Emergency Services Agency [2017] ACAT 101 (4 December 2017).

The Emergency Services Agency (the ESA) did not deny that the campaign, with the stated aim of reserving 8 of the 16 positions for woman, constituted discrimination on the grounds of sex under the Discrimination Act (see [25]).  The ESA’s argument was that the discrimination was permitted by s 27. That section says that it is not unlawful

… to do an act if a purpose of the act is—

(a) to ensure that members of a relevant class of people have equal opportunities with other people; or

(b) to give members of a relevant class of people access to facilities, services or opportunities to meet the special needs they have as members of the relevant class.

In essence, section 27 allows ‘positive’ discrimination and that is what ESA said was the purpose of the quota.  The issue was one of ‘equality’ v ‘equity’ as summed up in the famous (and I apologise, very American) picture, below:

(http://interactioninstitute.org/)

The applicant, Mr Macca argued that there was equality in firefighting recruiting as women were entitled to apply and everyone had to pass the same tests.   As Senior Member Robinson said (at [20]-[21]):

Key to the applicant’s position is his particular definition of ‘equal opportunity’. Further to this, the applicant also made the following observation about the nature of ‘equal opportunity’ in his final submissions:

The applicant contends that the use of the equal opportunity policy by ACT Fire and rescue in the 2016 recruitment campaign was done in a discriminatory fashion, and the equal opportunity actually already existed prior to this recruitment campaign, i.e. Female applicants were already considered on an equal footing with male applicants, but simply had a low success rate in achieving a position as a firefighter, despite the equal opportunity to apply, equal testing protocols employed for both male and female applicants.

All recruitment procedures prior to this one in 2016 were based on merit, and not on any political manoeuvring.

In other words, the applicant contends that ‘equal opportunity’ means treating all applicants the same. In the applicant’s submission, because male and female candidates were subject to the same testing and processes prior to the 2016 campaign, there was no need for a ‘special measure’ to ensure equality of opportunity, because it already existed.

In other words he was looking for ‘equality’ (as shown in the picture above).

The respondent (the ESA) on the other hand, argued that their plan was to overcome more general ‘inequity’ in firefighting given the low number of women in the service.  At [28] Senior Member Robinson said:

The respondent does not dispute the applicant’s contention that female applicants already had, prior to the 2016 Campaign, the kind of formal ‘equality’ contended for by the applicant. However, the respondent contends that the Discrimination Act calls for a much broader definition of equality:

…in the employment context, the pursuit of equality of opportunity under s 27 permits the provision of advances to women that are intended to address disadvantages or barriers that have resulted in women being underrepresented in a particular profession, such as firefighting.

It is not so much about ensuring applicants in this round were on an equal footing, but that women in firefighting were able to overcome historical barriers that meant women as a class were underrepresented in the ACTFR service.

The Tribunal (at [37]-[41]) made it clear that it’s job was not to decide whether the policy choice was a good policy choice or not. At [40] it was said:

In exercising its role under the Discrimination Act, the Tribunal does not act as some kind of de facto ‘house of review’ or policy decider, oversighting the decisions of the Government or its agencies, searching for errors, or ‘unfairness’ or assessing or substituting other outcomes the Tribunal may think are preferable. In considering whether an act amounts to unlawful discrimination, the Tribunal does not need to consider whether the act was good or bad policy, the best available option, or even at all effective. It does not consider whether something is, objectively or subjectively, ‘fair’. Indeed, the Tribunal would be in error were it to approach a complaint referred to it such a way.

The tribunal then had to consider what sort of conduct s 27 was intended to allow. The applicant (at [49]) argue ‘for a definition of ‘equality’ that equates “ensuring that members of a relevant class have equal opportunities with other people” with ensuring that everyone starts from the same place and is treated exactly the same …’ ie the notion of ‘equality’ above, everyone gets the same size box.

The ESA on the other hand, argued (at [50})

… that equality of opportunity “must permit something more than formal equality.” Equality, the respondent contends, must allow for processes and procedures that “address underlying substantive inequalities that persist despite formal equality.” This kind of equality is commonly called ‘substantive equality’. Proponents of substantive equality contend that persons of relevant classes may need to be treated differently so that they can, in the end, enjoy their human rights equally.

Giving women a priority may advantage women in this recruiting round but is intended to benefit the class of women in firefighting and to allow the ACTFR to overcome low representation of women within its ranks.   The Tribunal said (at [53] and [60]):

I accept the respondent’s arguments about the kind of ‘equality’ it is intended to facilitate. The purpose of the provision is clearly, on its face, to permit the enactment of a ‘special measures’ to address the ‘special needs’ of persons with relevant protected attributes. I agree with the respondent that in order for this provision to have work to do, and to not be devoid of meaning or effect, it must mean more than the elimination of formal discrimination. It must permit the implementation of some ‘special’ measure.

… the concept of ‘equality of opportunity’ in the Discrimination Act encompasses more than mere formal equality, and that section 27 is designed to permit processes to remove or address disadvantages or barriers – that is, that it permits special measures intended to achieve substantive equality.

Having decided that the Act allowed an ‘affirmative action program’ ([57]) the question became ([64]): ‘did the decision-maker [ie the Chief Officer] implement the Target and the 2016 campaign processes in the belief that they were capable of ensuring women had equal opportunities to be firefighters?’

In evidence the Chief Officer noted, amongst other things (see [34]):

…

(e)       There was no “hard target” that reserved eight places for women – female applicants had to pass the same standards as male candidates.

(f)        Gender diversity in this ACTFR has historically been “extremely poor”. As at 2015 women represented 2% of career firefighters in the ACTFR, which was the lowest in any of the agencies comprising the Emergency Services Agency. It was also the lowest rate of representation of women among the major Australian urban firefighting services.

(g)       That said, all urban firefighting units have struggled “for a long time” to attract female recruits.

(h)       One of the difficulties in recruiting women in the past has been the perception amongst both genders that firefighting was not a realistic option for women, in part because the physical strength required…

(l)        ACTFR does not recruit often, so the opportunities to address gender imbalance are “relatively rare.” When recruitment programs run, very few women apply – during the last round in 2012 only 6.5% of applicants were female. None were found suitable for employment…

(p)       Although the Program did not ultimately achieve its target of offering eight positions to suitable female applicants he considered the initiative to be a success in the effort to improve gender diversity in the organisation and reduce the barriers traditionally faced by women. He noted that 25% of new recruits were women, compared to 0% in 2012, and around three times as many women relative to men applied in the latest round, compared to 2012.

The Tribunal accepted the unchallenged evidence from the Chief Officer.  At [67] the Tribunal said:

I accept that Mr Brown, and the relevant executives within the ACTFR and the ACT Government, considered it a desirable thing to increase diversity within ACTFR. I accept that Mr Brown thought the Target and the procedures adopted for the 2016 Campaign would assist to do so.

Conclusion

The tribunal found that the adoption of an informal and ‘soft’ quota, that is an intention to offer 8 of the 16 positions to women provided that they passed the physical tests for recruitment, was permitted under the Discrimination Act even if it did discriminate against male applicants.  The policy did not achieve its aim in that only 4, not 8 women were recruited but that did not detract from the aim of the policy and the objective to adopt special measures to increase the number of women within ACTFR was lawful.

POSTSCRIPT

Having read the comments on this post (particularly on FaceBook) it is worth making the point that there is no evidence that the 4 women who were recruited in 2016 were selected on the basis of their gender. To put that another way, there is no evidence that there were up to 4 men who might have been ‘better’ candidates and who ‘but for’ the informal quota would have been appointed ahead of the female candidates.

The applicant, Mr Macca argued that he had been discriminated against but there was no evidence that he was even an applicant for appointment as a firefighter. At [16] the Tribunal said: “The applicant claims to have been a participant in the 2016 Campaign. Other than his correspondence and unsigned submissions, he has provided no probative evidence of this… Nonetheless, for the purpose of dealing with what the applicant calls the “merits” of his application, I will assume that he is male, that he was an applicant, and that he was unsuccessful.”