King's International College - [2011] QCAT 231

CITATION:

King’s International College [2011] QCAT 231

PARTIES:

King’s International College

APPLICATION NUMBER:

ADL022-11

MATTER TYPE:

Anti-discrimination matters

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

C Endicott, Senior Member

DELIVERED ON:

30 May 2011

DELIVERED AT:

Brisbane

ORDERS MADE:

Application for an exemption under section 113 of the Anti-Discrimination Act 1991 is dismissed.

CATCHWORDS:

ANTI-DISCRIMINATION – EXEMPTION – where educational authority seeking to discriminate on grounds of sex – evidence did not justify exemption

Anti-Discrimination Act 1991, ss 38, 39, 113, 127

Catholic Education Office – Application for Exemption 2003 HREOC

APPEARANCES and REPRESENTATION (if any):

The hearing took place on the papers in the absence of the parties in accordance with section 32(2) of the Queensland Civil and Administrative Tribunal Act 2009.

REASONS FOR DECISION

An application seeking an exemption under section 113 of the Anti-Discrimination Act 1991 was lodged with the tribunal on behalf of King’s International College by Paula Brand, Sales and Marketing Manager of the College.
Among other courses, the College offers Certificate III courses in Children’s Services. According to the information on the website of the College, this course is recognised as the appropriate training for childcare assistants who wish to be qualified as a childcare worker. The website states that Certificate III graduates will find employment as an assistant in a child care centre or kindergarten, as a nanny, family day care provider or an assistant in outside school hours care.
In information lodged in support of the exemption application, it was stated that there is a lack of males in the childcare industry. According to the Australian Bureau of Statistics in 2002, males account for only four per cent of the workers in child care. The College stated that its own statistics reflect this disparity in that it has one male student out of the 12 students currently enrolled in the classroom based Certificate III in Children’s Services.
The College proposes delivering Australia’s first male only course in Certificate III in Children’s Services. In the information provided to support the exemption application, the College stated that it had sent out emails to its childcare centre partners and no centre was unfavourable to the idea of encouraging more males into the industry and running a male only course.
The subject units to be included in the male only course were the same subject units already offered in existing courses on the website available to both male and female students. The male only course proposes to offer special guest speakers including male childcare directors and current male childcare workers.
The College stated that the proposed male only course was expected to attract 20 job seekers to the course. The College anticipated that its advertisements about the course will not only attract participants to the class but will also help to change the views of the wider community to encourage more males to enter the childcare industry. The College anticipated a lot of general media interest across Australia as the offering of a males only course was stated to be a very community focused and topical story.
The supporting material lodged by the College consisted of the following: an article published in 2009 about the low number in relative terms of male childcare workers in Ireland, a 2005 article published in the Australian Journal of Early Childhood about the gender imbalance in the children’s services industry, a commentary on that article, an article that was published on an unknown date in a newspaper about men in the childcare industry, copies of six emails from childcare centres supporting the proposed male only course, an article published in 2009 by a male childcare worker as to his experiences in the childcare industry, an article from a newspaper published in 2011 about labour shortages in the child care industry in Victoria, three articles supporting males in the childcare industry, three letters of support for the proposed males only course, one being from Steve Biddulph a former Australian Father of the Year and a renowned psychologist, a list of skills shortages in Queensland and a 2004 article about myths about men working with young children.
In accordance with the requirements in section 113(2) of the Anti-Discrimination Act 1991 the tribunal gave the Anti-Discrimination Commissioner a copy of the exemption application. The Commissioner expressed the view that there was no justification for granting an exemption in this case.
In considering this application, the tribunal must first examine whether an exemption is necessary.[1] Conduct which may appear on initial examination to breach the provisions of the Anti-Discrimination Act 1991 may be excused by specific exemptions or defences in the Act and in those cases there will not be a requirement for an exemption under section 113.
[1]Exemption application re: Boeing Australia Holdings Pty Ltd & related entities [2003] QADT 21.

[10] Sections 38 and 39 of the Act prohibit an educational authority from discriminating on the grounds of sex as to who should be offered admission as a student or who has access to benefits arising from enrolment. None of the specific exemptions contained in sections 41 to 44 would apply to this case.

[11] Section 127 of the Act prohibits advertisements which indicate a person intends to act in a way that contravenes the Act. The defences in section 127 would not apply to this case.

[12] The Act also contains general exemptions for discriminatory conduct in sections 104 to 113. One of the general exemptions permits acts done to promote equal opportunity for a group of people with an attribute if the purpose of the act is not inconsistent with the Anti-Discrimination Act 1991.[2] This section could permit an educational authority to offer a males only course in childcare if it were to be established that males did not have an equal opportunity to access childcare courses.

[2] Section 105 of the Anti-Discrimination Act 1991.

[13] There was no evidence provided in the College’s application and in the supporting material filed with the tribunal that male students have a lesser opportunity to access childcare courses than female students. In the absence of evidence that males have an unequal opportunity of access to this specific area of education, an exemption under section 105 would not be available to the College. Some other general exemption would be necessary to permit the College to offer male only courses in childcare.

[14] Turning now to section 113 of the Act, it is in the discretion of the tribunal whether to grant an exemption for conduct that would otherwise constitute unlawful discrimination. The tribunal exercises that discretion by taking into account factors such as whether it would be appropriate and reasonable to grant an exemption, whether there are any non-discriminatory ways of achieving the purposes for which the exemption is sought and whether there is support for the exemption being granted.[3]

[3] Boeing Australia Holdings ibid. paragraph 12.

[15] In considering whether it would be appropriate and reasonable to grant an exemption, the tribunal accepts the evidence provided by the College that there is a considerable imbalance between the number of females working in the childcare industry and the number of males working in that industry and that information from the Australian Bureau of Statistics reveals that males account for only four per cent of the workers in child care.

[16] The reasons for that imbalance between males and females working in the childcare industry were discussed in the material provided by the College. Those reasons are expressed in various ways in the material but appear to coalesce into the following: unattractive industry to males due to low wages paid to childcare workers, a stigma related to child protection issues attached to male childcare workers working with young children in that it is considered natural for females to work with young children but is a perversity for males and the attitude that males are transient in childcare work until they can leave for more attractive employment opportunities.

[17] None of these reasons for the under-representation of males working in the childcare industry are directly relevant to the basis on which the exemption was sought. The application by the College is stated to have been brought on the following basis: King’s believes there (are) grounds for an exemption because there is a considerable lack of males working in the childcare industry. They are not encouraged to train in the industry and when they do study they are ridiculed by their families, friends and even fellow students (female). We feel a male only course will raise the profile of encouraging more men to train in early childhood and that it is not a female only industry.

[18] The College asserts that males are not encouraged into childcare courses and are ridiculed when they do undertake training in childcare. The evidence provided by the College to support those assertions was very limited. A male director at a child care centre stated in an email to the College that many years ago he was the only male in his course and “that can be a touch overwhelming.”[4]

[4] Email from Adam Malin included in a group of emails provided as evidence.

[19] Evidence from another male childcare worker was given in the following terms: “When starting my Diploma in Community Services (Children’s Services) course, as an 18 year old guy I didn’t really mind being one of only two males in a group of sixty students…. It hardly occurred to me that I would be in the minority as greatly as we really are. Through the two years of study, I was accepted by the other students and TAFE teachers who all treated me as just one of the class. This was great in some respects, but I did find I was not taken as seriously at first, until I showed them I wanted to be here because I wanted to be a childcare worker. I may have been overlooked, and spoken down to on occasions, too. The teachers tried to support me as much as they could. Some felt helping me through would be to my benefit; others felt I really had to excel with my work to prove I’d be able to cope in this female dominated industry. I’m not sure which teaching style helped me the most: perhaps they both did in their own way.”[5]

[5]Brendan Walton quoted in an article “Males in Early Childhood” in Neither of these accounts by males of their childcare studies support the assertion made by the College that males are not encouraged to train or are ridiculed when they do undertake training in childcare.

[21] Other evidence provided by the College similarly failed to support the assertions made in the application about the challenges faced by males accessing childcare educational opportunities. An undated report from a Gold Coast newspaper noted that there had been a 50% increase in men studying children’s services at a TAFE college. It is unclear if enrolments in TAFE continue to attract a greater proportion of male students than the applicant College.

[22] On the other hand, an article by academics from three Australian universities published in an early childhood education journal in 2005 discussed strategies to increase the number of men working in children’s services. It was reported that a survey of students and staff in the childcare arena found that about two-thirds of the survey participants agreed that the opportunities for males could improve and more than three-quarters agreed that education providers could make their courses more attractive to men.[6]

[6]Primary research – Gender, the labour market, the workplace and policy in children’s services in Australian Journal of Early Childhood volume 30 No1 March 2005.

[23] The article did not suggest that a viable strategy was the introduction of male only courses. The writers of the article did not argue that one practicable way in which to make the courses offered to childcare students more attractive to men was to exclude female students from those courses. Indeed, the article noted that the relatively few empirical studies focusing on male early childhood educators highlight a diversity of views held by male staff about gender and gender roles and how these play out in their work with other staff, parents and children. After analysing the article, it could be interpreted as highlighting the benefit in maintaining both genders in training courses as well as in workplaces rather than supporting segregation of the sexes in training courses.

[24] The writers also suggested that there is little empirical support in the literature for the argument that greater male involvement in the children’s services workforce will help to address gender stereotyping. On the contrary, the writers noted that there is some evidence to suggest that greater male participation may simply serve to reinforce traditional gender views. Overall the tribunal does not consider that the article provides any cogent support for the exemption application.

[25] The assertions made in the application of a lack of encouragement of males to train in childcare and of male childcare students being ridiculed in mixed sex courses are not supported by the evidence provided by the College. There is simply no established link in the evidence between the ongoing low numbers of male childcare students and the running of mixed sex courses. There is no evidence that male students are being prevented from accessing opportunities to study childcare because of the lack of male only courses or because of the existence of only mixed sex courses.

[26] It is recognised that a discriminatory act done in due obedience to the law denies the human right of equality before the law.[7] Exemptions under the Anti-Discrimination Act 1991 to make lawful what is otherwise discriminatory behaviour should be limited to those circumstances when the tribunal can be satisfied that there is a necessity for different treatment to be accorded to a group of persons before the law.

[7] Gerhardy v Brown (1985) 159 CLR 70.

[27] When determining whether to grant an exemption, there should be made available to the tribunal an analysis of the problem that the exemption is designed to redress. That analysis would ideally cover whether in the relevant area of service delivery, employment, education etc there are practices which tend to exclude, disadvantage, restrict or result in an adverse effect on people in the target group for the exemption or which leave uncorrected the effects of past discrimination against that group.[8]

[8]See Australian Human Rights Commission 1996 Guidelines for Special Measures under the Sex Discrimination Act 1984.

[28] The College has not provided any such analysis or indeed any evidence that offering a males only course in childcare will tend to correct any practices that have excluded, caused disadvantage or restricted the opportunity of males to obtain places in childcare education or indeed to obtain employment in the childcare industry. There is no evidence of inequality of opportunity in accessing childcare education between the sexes.

[29] It is not the purpose of the Anti-Discrimination Act 1991 to secure a more near balance between the number of males and females in childcare education or childcare employment. It is the purpose of the Act to promote equality of opportunity for everyone by protecting them from unfair discrimination.[9]

[9] Section 6 of the Anti-Discrimination Act 1991.

[30] There has been a notable case determined by the Australian Human Rights Commission that contained many issues similar to the issues raised in this exemption application. In Catholic Education Office – Application for Exemption decided in 2003 the Commission declined to grant an exemption to permit scholarships for primary teaching training to be offered only to male students. It was determined that the application for exemption had failed to demonstrate that the exemption sought was reasonable.

[31] It was noted that the reasons for the lower number of male than female primary teachers were varied and complex. Reports suggested that significant factors were the status of teachers in the community, salary and career opportunities that did not keep pace with opportunities outside teaching and child protection issues. The application had provided insufficient evidence to show that the underlying causes of the gender imbalance in the primary teaching profession might be addressed through a scholarship scheme.

[32] The application did not identify any reason why the scholarship scheme could not be provided on a less discriminatory basis. The Commission found that there was insufficient evidence to support a finding that the gender imbalance in the primary teaching profession would have adverse social or educational effects or would detrimentally affect school culture or the education of boys enrolled as students in primary schools.

[33] The findings made by the Australian Human Rights Commission are in many respects useful when the tribunal considers the application for exemption made by the College.

[34] The tribunal has not been satisfied after considering the evidence provided that it would be appropriate and reasonable to grant an exemption to the College. No evidence has been provided to convince the tribunal that males have an unequal opportunity to access childcare education. If the College wants to take a lead role in reversing the trend of many years of low numbers of male childcare students, there are likely to be non-discriminatory ways of achieving that purpose.

[35] Its own evidence recognises the need to make the courses more attractive to men. However the course proposed for the male only course is virtually identical to the course offered to everyone. Based on the evidence presented to the tribunal, there is no support for the premise that it is reasonable and appropriate to preclude females from a more attractive childcare course for men. The evidence does not provide a basis to justify the College discriminating against females in offering courses in childcare.

[36] The tribunal is satisfied that the exemption application must be dismissed.