This guide sets out the exceptions in the Equal Opportunity Act 1984 (EO Act) and how agencies can use them to make employment decisions in favour of identified groups of people and achieve greater diversity in their workforce.
Commissioner’s Instruction 39: Interim Arrangements to Fill Public Sector Vacancies provides temporary easing of rules to support more efficient recruitment. This includes providing for the direct appointment of diverse people to meet the aspirational targets set out in the Workforce Diversification and Inclusion Strategy for WA Public Sector Employment 2020–2025.
What can agencies do?
Show moreThe EO Act recognises that it is okay to favour particular groups of people in the area of employment.
Exceptions in the EO Act allow agencies to:
- nominate race, sex, disability and age as a genuine qualification for a job (eg female breast screen radiographer servicing women)
- take action on the grounds of race, sex, sexual orientation, disability and age to achieve equity or improve representation in employment (eg leadership program to support career progression of Aboriginal and Torres Strait Islander staff or to meet targets).
Agencies wanting to support a group not listed above can apply for an exemption to the State Administrative Tribunal. The Commissioner for Equal Opportunity is automatically joined as a party to exemption applications.
What are the exceptions?
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Genuine occupational qualifications A person’s race, sex, disability or age can be nominated as a genuine occupational qualification for a role that provides services to the same diversity group. Genuine occupational qualifications must be stated in the job description and are considered essential criteria. |
Measures intended to achieve equality Specific actions can be taken on the grounds of race, sex, sexual orientation, disability or age to provide equity and improve representation in employment. Measures can be used for recruitment and other opportunities such as training and development. |
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Section 50(d): Race Applies when services intended to promote the welfare of people of a particular race can most effectively be provided by a person of the same race. Example: Person of Sudanese background for a conciliation officer position |
Section 51: Race Affords people of a particular race access to facilities, services or opportunities to meet their special needs in relation to employment. Example: Leadership program for Aboriginal and Torres Strait Islander people to support career progression |
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Section 66S(c): Impairment Applies when services intended to promote the welfare of people with particular disability can most effectively be provided by a person with the same disability. Example: Person who is vision impaired for a position developing communications materials for vision impaired audiences |
Section 66R: Impairment Affords people with disability access to facilities, services or opportunities to meet their special needs in relation to employment. Example: Dedicated recruitment of people with disability to meet diversity employment targets |
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Section 66ZQ(c): Age Applies when services intended to promote the welfare of people of a particular age can most effectively be provided by a person of a particular age. Example: Youth counsellor who is of a similar age to relate to the client group |
Section 66ZP: Age Affords people who are of a particular age access to facilities, services or opportunities to meet their special needs in relation to employment. Example: Skills refresher program for staff over 45 years old |
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Section 27: Sex Applies when it is a genuine occupational qualification in relation to a particular position to be a person of a particular sex. Example: Female breast screen radiographer |
Section 31: Sex Affords people of a particular sex or marital status, people who are pregnant or breast feeding or bottle feeding access to facilities, services or opportunities to meet their special needs in relation to employment. Example: Career development program to increase representation of women in Science, Technology, Engineering, and Mathematics (STEM) roles |
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Section 35ZD: Sexual orientation Affords people of a particular sexual orientation access to facilities, services or opportunities to meet their special needs in relation to employment. Example: Employee network for people of diverse sexualities |
Note the different groups under each exception.
What must agencies do and what is best practice?
Show moreWhile agencies may choose to use the exceptions, recruitment actions must meet the Employment Standard – that is, assessment by merit must be made against the job requirements in recruitment.
The exceptions under the EO Act do not override the Employment Standard or Public Sector Management Act 1994 (PSM Act) or vice versa. Even if agencies meet the requirements of the Employment Standard and PSM Act, their decision making process might still unintentionally discriminate.
If there is a complaint investigated by the Equal Opportunity Commission or State Administrative Tribunal, an agency may be required to provide evidence of its decision to use the exception/s (section 123 of the EO Act). This is because the use of exceptions would form the agency’s statutory defence and must be justifiable.
Therefore, agencies are advised to:
- establish and document the reason for using the exception/s
- identify and document evidence to support the reason
- state the diversity requirements in job/program documents.
1. Establish the reason
If the agency’s reason for restricting applications to a particular group is that the service can most effectively be provided by a person with the same attribute, the genuine occupational qualifications exceptions apply.
In other circumstances, an agency’s reasons for deciding to restrict eligibility for an opportunity to a particular group may be to:
- better reflect the community the agency services
- increase representation of a particular diversity group to address past inequality and/or disadvantage
- increase representation of a particular diversity group to meet agency and/or sector diversity employment targets
- support progress of diversity and inclusion in the public sector.
For these situations, the measures intended to achieve equality exceptions apply.
2. Identify the evidence
Evidence can come from a variety of sources, from client feedback to user statistics. Some examples are provided below.
Example 1: Evidence for genuine occupational qualifications (race)
A suburban health service is experiencing barriers of culture and language that are contributing to poor contact and quality of services for Rwandans in the area. A role is created using section 50(d) of the EO Act for a health worker who is Rwandan as the health and welfare of Rwandan clients is most effectively provided by someone of Rwandan cultural heritage.
Evidence may include:
- low performance ratings from Rwandan clients or client feedback suggesting difficulty with communication or cultural understanding
- community service contact data indicating a reduction in interactions with the represented group
- research on confidence levels of the multicultural community when dealing with officials from a similar cultural background
- low representation of Rwandan people employed in the organisation.
Example 2: Evidence for genuine occupational qualifications (age)
A safe driver education program in secondary schools intends to address behaviours of alcohol related road deaths impacting young people. Other health and safety education programs show that young people take on messages of health and safety more readily when delivered by someone of a similar age to them. An age restriction is an essential requirement for the role, supported by section 66ZQ(c) of the EO Act.
Evidence may include:
- data showing limited decrease in youth drink driving statistics despite program delivery
- research that young people delivering education to young people is more effective
- low representation of youth in safety program delivery staff.
Example 3: Evidence for measures intended to achieve equality (race)
A scholarship program aims to increase competitiveness and representation in leadership and decision making roles for Aboriginal and Torres Strait Islander staff. Only Aboriginal and Torres Strait Islander people are eligible to apply (section 51 of the EO Act).
Evidence may include:
- workforce statistics showing under representation of Aboriginal and Torres Strait Islander staff in higher salary levels over time
- identified service needs as the agency delivers services to an Aboriginal and Torres Strait Islander community that could benefit from cultural understanding at higher levels
- local area demographic profiles showing a higher representation of Aboriginal and Torres Strait Islander people in the community.
Example 4: Evidence for measures intended to achieve equality (impairment)
A portion of vacancies in a recruitment pool is reserved to be filled by people with disability (section 66R of the EO Act). This aims to provide greater opportunities of employment and address under-representation or address employment targets established in the agency’s workforce and diversity plan.
Evidence may include:
- workforce data showing under-representation of people with disability against the public sector target
- data showing a high representation of people with disability in the serviced community.
3. State the diversity requirements
When using the EO Act exceptions, it is important to be transparent about the intention in all documents, referencing the diversity group and the link to the EO Act exemption.
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Example text |
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Job advertisement |
The agency is committed to improving the representation of women in senior executive roles under its workforce diversity strategy. This opportunity is offered in accordance with section 31 of the Equal Opportunity Act 1984 and the agency is therefore only seeking female candidates. |
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Being of [race/ethnic group] is a genuine occupational qualification for this position within the meaning of section 50(d) of the Equal Opportunity Act 1984. Therefore, only applicants of [race/ethnic group] background will be considered. |
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The agency is committed to increasing the representation of Maori people in its workforce to support the needs of the diverse community. This opportunity is offered in accordance with section 51 of the Equal Opportunity Act 1984 and Maori candidates who meet the selection criteria for this role will be prioritised for appointment. |
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This position is being advertised as a measure to achieve equality under section 66R of the Equal Opportunity Act 1984. As such, only people with disability who meet the minimum requirements of the role will be considered. |
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Job description |
It is a genuine occupational qualification of this position to be female in accordance with section 27 of the Equal Opportunity Act 1984. |
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It is a genuine occupational qualification of this position to be of Polish descent in accordance with section 50(d) of the Equal Opportunity Act 1984. |
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Development program |
The agency is committed to improving access to development opportunities for Aboriginal and Torres Strait Islander staff to support their progression and representation at higher levels of its workforce. This development program is therefore available only to Aboriginal and Torres Strait Islander staff in accordance with section 51 of the Equal Opportunity Act 1984. |
Further information
Show moreWhen using the EO Act exceptions, agencies can:
- refer to the relevant section of the EO Act
- seek advice from their human resources teams
- go to the Equal Opportunity Commission website
- email the Public Sector Commission.
