VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
human rights DIVISION
HUMan rights LIST	
vcat reference No. H509/2024	
CATCHWORDS	
 Application for an exemption – the conduct for which exemption is sought would meet the requirements of being a ‘special measure’ – exemption not required. Equal Opportunity Act 2010 (Vic) sections 12, 89, 90, Waite Group (Human Rights) [2016] VCAT 1258 (28 July 2016), V/Line Corporation - Exemption (Human Rights) [2019] VCAT 1350	

APPLICANT	Metro Trains Melbourne Pty Ltd	
WHERE HELD	On the Papers	
BEFORE	Member S Webb	
DATE OF ORDER	1 November 2024 2024	
DATE OF WRITTEN REASONS	1 November 2024	
CITATION	Metro Trains Melbourne Pty Ltd – Exemption (Human Rights) [2024] VCAT 1049	

Order

The application for an exemption is struck out.

S Webb
Member			

		

Reasons
BACKGROUND
1	The applicant, Metro Trains Melbourne Pty Ltd (Metro Trains) applied for an exemption under section 89 of the Equal Opportunity Act 2010 (Vic) (the EO Act). The application sought an exemption to allow the Metro Trains to target females in its Train Driver advertising and recruitment program. 
2	Metro Trains stated that as part of its overall effort to address the existing gender imbalance in its workforce, a number of strategies are being considered and implemented. An increase in the involvement of females in its workforce to 50%, including the Train Driver Department, is seen as critical to ensuring that the gender imbalance is addressed.
3	Metro Trains is the operator of railway passenger services serving metropolitan Melbourne subject to a Franchise Agreement with the Department of Transport and Planning. The publicly available Franchise Agreement includes gender targets requiring overall and specific role gender targets, increasing towards equilibrium over the life of the agreement. A failure to meet a target may lead to a financial penalty for Metro Trains.
4	Metro Trains stated that the rail industry was traditionally viewed as a male dominated industry, which has led to a gender imbalance in the rail industry globally.  Metro Trains has previously been provided with exemptions from the EO Act to hold recruitment campaigns for females for particular roles.
5	In the information provided to me, as at 15 August 2024, the overall percentage of female employees in Metro Trains’ workforce is 31.85%. The breakdown of this percentage is 2,281 female employees out of a total of 7,162 employees. Within the Train Driver Department, the percentage of female employees is 37.81%. The breakdown of this percentage is 597 female employees out of a total of 1,579 Train Driver employees.
6	VCAT wrote to Metro Trains and requested further information about the application. Metro Trains was required to provide to VCAT submissions and further evidence on affidavit in respect to information about Metro Trains, which positions or teams require the exemption, the reasons why, and also to provide submissions relating to the special measures provisions of the EO Act. 
7	The VCAT order stated that on receipt of the above further material from Metro Trains, subject to any issues arising from the materials or request for a hearing, VCAT intended to make a decision regarding the exemption application on the papers. 
8	On 16 August 2024, Metro Trains provided submissions and an affidavit from Robert Duvel, Executive Director (Safety and People) of Metro Trains.  The submissions included ways to implement the proposed conduct to achieve the outcome that Metro Trains seeks. Metro Trains did not request a hearing.
9	The Victorian Equal Opportunity and Human Rights Commission advised it did not seek to intervene in the application.
THE APPLICABLE LAW
The EO Act
10	The provisions dealing with exemptions are found in sections 89 and 90 of the EO Act.
11	Section 89 states that the Tribunal may, by notice published in the Government Gazette, grant an exemption from any provisions of the EO Act in relation to a person or classes of persons or an activity or class of activities or any other provision in any other circumstances specified by the Tribunal. An exemption may be granted for any period of not more than five years. An exemption may be renewed from time to time and may be granted or renewed subject to any conditions the Tribunal considers fit.
12	Section 90 of the EO Act sets out mandatory considerations for the Tribunal when exercising the power under section 89. 
90	Factors to be considered by Tribunal
In deciding whether to grant, renew or revoke an exemption, the Tribunal must consider—
(a)	whether the proposed exemption is unnecessary because—
(i)	an exception or exemption in this Act already applies to the conduct sought to be exempted; or
(ii)	the conduct sought to be exempted would not amount to prohibited discrimination; and
(b)	whether the proposed exemption is a reasonable limitation on the right to equality set out in the Charter of Human Rights and Responsibilities; and
(c)	all the relevant circumstances of the case.
13	Relevant to whether an exception or exemption applies is the provision for special measures.
12	Special measures
(1)	A person may take a special measure for the purpose of promoting or realising substantive equality for members of a group with a particular attribute.
	[Examples omitted]
(2)	A person does not discriminate against another person by taking a special measure.
(3)	A special measure must—
(a)	be undertaken in good faith for achieving the purpose set out in subsection (1); and
(b)		be reasonably likely to achieve the purpose set out in subsection (1); and
(c)		be a proportionate means of achieving the purpose set out in subsection (1); and
(d)		be justified because the members of the group have a particular need for advancement or assistance.
(4)	A measure is taken for the purpose set out in subsection (1) if it is taken—
(a)	solely for that purpose; or
(b)	for that purpose as well as other purposes.
(5)	A person who undertakes a special measure may impose reasonable restrictions on eligibility for the measure.
[Example omitted]
(6)	A person who undertakes a special measure has the burden of proving that the measure is a special measure.
(7)	On achieving the purpose set out in subsection (1), the measure ceases to be a special measure.
14	If the conduct in question can be shown to be a special measure, as defined in section 12 of the EO Act, the conduct is not discriminatory. It follows that, as the conduct would not be in breach of the EO Act, an exemption would not be necessary.
15	There are relevant cases on the issue of special measures. The decision of Waite Group explored this provision, and identified that the broad matters to consider are as follows:
•	Whether the conduct is directed to members of a group with a particular attribute;
•	What the purpose of the conduct is and whether it is for the purpose of promoting or realising substantive equality; and
•	Whether the conduct is to be undertaken in good faith, is reasonably likely to achieve the purpose, is proportionate and is justified.
16	A similar fact application was determined by VCAT in 2019, when the V/Line Corporation sought an exemption from the EO Act to conduct targeted marketing campaigns for V/Line careers to female candidates in an effort to increase the number of females applying for opportunities at that rail company. In that case it was determined that special measures were appropriate, and the proposed conduct would not amount to discrimination. 
IS THE PROPOSED CONDUCT A SPECIAL MEASURE
17	Metro Trains seeks permission to target females in its advertising and recruitment program so as to increase the number of females in the broader pool of applicants. A discernible group can be identified with a particular attribute, in this instance, females who wish to apply for Train Driver positions. 
18	In order to be satisfied that conduct is a special measure, it must fall within the terms of sections 12(1) and 12(3).
19	The purpose of the conduct here is to provide a means by which more females will have greater opportunities to apply for and be considered for recruitment for Train Driver roles at Metro Trains.  The proposed conduct seeks to address an inequality in numbers employed in train driver roles, to allow for more females to be made aware of opportunities and put themselves forward for consideration. Inequality of females in Metro Trains broadly, and in train driving specifically, is demonstrated by employment percentages and particular numbers set out above.
20	By creating a targeted advertising and recruitment program of females for Train Driver roles at Metro Trains, there will be an increased chance of their selection for those roles, as more candidates are available for selection.
21	Given the information before me, including the submissions and affidavit material provided, I am satisfied that the proposed conduct will be undertaken in good faith and is designed to achieve the purpose as outlined. I am also satisfied that the proposed conduct in this case is reasonably likely to be achieved.
22	Given the low representation of females at Metro Trains, the proposed conduct is likely to improve the opportunities for female applicants to be identified and put forward for employment consideration. Given the current percentages of females in this particular role, the proposed conduct is proportionate.
23	The justification for the proposed conduct here is self-evident from the statistics. The currently low numbers of females employed as drivers at Metro Trains means that the conduct is unlikely to go beyond achieving greater parity. I am satisfied that the proposed conduct is justified.
CONCLUSION
24	For the above reasons, I am satisfied that the proposed conduct meets the requirements of a special measure under section 12 of the EO Act and I so find in those circumstances, under section 12(2) of the EO Act, Metro Trains will not discriminate contrary to the EO Act by taking that special measure. As a consequence of section 90(a)(ii) of the EO Act, the proposed conduct would not amount to discrimination and so no exemption under section 89 is required.
25	Section 75(1)(a) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) empowers the Tribunal to strike out an application where it is misconceived. To the extent that no exemption is required, the application is misconceived and so an order will be made striking it out.

S Webb
Member