Re Credit Suisse Management (Australia) Pty Limited
[2012] QCAT 95
•6 March 2012
| CITATION: | Re Credit Suisse Management (Australia) Pty Limited [2012] QCAT 95 |
| PARTIES: | Credit Suisse Management (Australia) Pty Limited |
| APPLICATION NUMBER: | ADL133-11 |
| MATTER TYPE: | Anti-discrimination matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | R M Clifford, Member |
| DELIVERED ON: | 6 March 2012 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | The Application for exemption under the Anti-Discrimination Act1991 is dismissed. |
| CATCHWORDS: | ANTI-DISCRIMINATION – Application for exemption – Women’s Scholarship – whether necessary Anti-Discrimination Act1991, ss 105, 113 Boeing Australia Holdings Pty Ltd & related entities [2003] QADT 21 |
APPEARANCES and REPRESENTATION (if any):
The hearing took place on the papers in the absence of the Applicant pursuant to section 32(2) of the Queensland Civil an Administrative Tribunal Act 2009.
REASONS FOR DECISION
The application
On 8 December 2011 the Tribunal received an application from Credit Suisse for an exemption under section 105 of the Anti-Discrimination Act1991.
Specifically, Credit Suisse seeks a five-year exemption in relation to a proposed investment banking scholarship for female university students in their penultimate year of full-time undergraduate university study. The scholarship, if offered, will be formally known as the Credit Suisse Investment Banking Women’s Scholarship.
Credit Suisse seeks the exemption in relation to the attribute of sex in the areas of pre-work, work, goods and services and any other relevant areas in connection with the advertising, offering, facilitating or incidental conduct in the maintenance and administration of the Scholarship.
The proposed Scholarship in essence comprises a cash payment of $10,000.00 and an opportunity to interview in the final round interviews for a paid summer internship at Credit Suisse.
The Scholarship does not guarantee an offer of an internship or otherwise for full-time employment.
In support of the application Credit Suisse advises that it is one of the world’s leading financial service providers and offers clients expertise in the areas of private banking, investment banking and asset management.
Credit Suisse seeks to encourage female students and candidates for internship and potentially graduate roles in its own professional workforce and more generally within the investment banking industry.
Credit Suisse submit whilst women make up approximately half of Australia’s financial services industry workforce[1] these figures primarily relate to large consumer banks in Australia as opposed to multi-national corporation investment banks.
[1]51.8% as illustrated in EOWA Labour Force Statistics for January 2011 and 56% as illustrated in the 2010 EOWA Industry Snapshots for Financial and Insurance.
Credit Suisse submit that recent statistics regarding graduate intake for 2010/2011 reporting year are indicative of historically low uptake rates by female graduates in the investment banking area of the financial services workforce.
[10] Credit Suisse submit in relation to its 2010/2011 summer internship programme, 16% of all applicants were female compared to 56% male and 28% not disclosing gender.
[11] Credit Suisse submit in relation to its 2012 graduate programme, 21% of all applicants were female compared to 72 % male and 7 % not disclosing gender.
[12] Credit Suisse submit the Scholarship is designed to address this imbalance and to benefit and educate female students and candidates who have historically been less likely to consider a career path within a global investment banking environment.
[13] Credit Suisse submit the Scholarship is an initiative to align with its goals of encouraging gender diversity, achieving better gender balance in the workforce composition at all levels of seniority and participation and educating female students about a career in investment banking.
[14] Credit Suisse advise that the proposed Scholarship will only be awarded to one university student per year and submits five years to be a necessary length of time for it to determine whether the Scholarship is having a positive impact upon the number of female applications for internship and graduate positions at Credit Suisse.
[15] Credit Suisse submits the proposal is appropriate and reasonable as females continue to be largely under-represented within multi-national investment banks, particularly in professional roles, and females continue to be largely under-represented at management and governance levels in the financial industry.[2]
[2]See, e.g the 2011 FINSIA report “Promoting Gender Equity through Transparency: Principles for Reporting on Gender Composition within Australia’s Financial Services Industry”.
[16] Credit Suisse submit the low percentages of women at governance levels within the financial services industry are further borne out in the other reports which indicate women represent only 8.4% of Board Directors of ASX200 companies,[3] 8% of Executive Managers of ASX200 companies[4] and only 4.1% of the financial services industry at CEO level.[5]
[3] 2010 EOWA Australian Census of Women in Leadership.
[4] EOWA Gender Workplace Statistics.
[5] 2010 EOWA Industry Snapshots for Finance and Insurance.
[17] Credit Suisse submit that an exemption is necessary because the Scholarship which relates to an offer to final round interviews for a paid summer internship, which if successful may lead to an offer of graduate employment within the Company, may breach sections 14 (pre-work) and 15 (work) areas of the Anti-Discrimination Act 1991 and the offer to provide financial assistance may be characterised as services and lead to a breach of section 46 (provision of goods and services) of the Act.
[18] Credit Suisse submit it has taken other non-discriminatory steps of achieving the objects and purpose of the proposed exemption by establishing an Australian Women’s Committee, becoming members of female industry groups such as Women in Banking and Finance, measuring the levels of female talent by rank and seniority and highlighting employment policies and benefits but believe that targeted internship recruitment is a crucial tool in engaging females at an entry level when they are making key career choices.
Anti-Discrimination Commissioner submission
[19] 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.
[20] The Acting Commissioner replied by letter dated 13 January 2011 (sic), noting that Credit Suisse argues that the proposed scholarship is an equal opportunity measure within the meaning of section 105 of the Act.
[21] The Acting Commissioner further noted that the Australian Institute of Company Directors operates a Board Diversity Scholarship program aimed at helping to increase the representation of women on Australian Boards and that the proposed scholarship appears consistent with the initiatives promoted by the Equal Opportunity For Women in the Workplace Agency (EOWA).
[22] Finally, the Acting Commissioner had no objection to the application and suggested if the Tribunal grants the exemption the exemption should extend to section 127 of the Act concerning discriminatory advertising.
[23] The Acting Commissioner made no submissions in regard to the process for considering the application.
Legislation and conclusions
[24] The Anti-Discrimination Act 1991 makes it unlawful to discriminate against a person based on certain personal attributes in specific areas of public life.
[25] The Act however also allows certain circumstances/actions to be excused or excluded from its operation through the application of specific defences and ‘permanent’ specific and general exemptions.
[26] A Respondent can raise particular defences and exemptions if a complaint is made to the Anti-Discrimination Commission.
[27] If required the Commissioner may make a decision about whether or not a defence or exemption applies within the complaint process. For example, the Commissioner must reject a complaint if the Commissioner is of the reasonable opinion the complaint is misconceived or lacking in substance.[6]
[6] Anti-Discrimination Act1991, s 139(b).
[28] Alternatively, if the complaint is referred to the Tribunal,[7] the Tribunal may be required to decide whether or not a defence or exemption applies within the Tribunal proceeding.
[7] Ibid, ss 164A-167.
[29] Outside the complaint and referral process a person or an organisation may apply to the Tribunal under section 113 of the Anti-Discrimination Act 1991 for the grant of a ‘temporary’ exemption from the Act. The grant of an exemption is discretionary.[8] The period of exemption must not be more than 5 years.[9]
[8] Ibid, s 113(1).
[9] Ibid, s 113(6).
[30] In considering such an application the Tribunal must first consider whether a ‘temporary’ exemption is necessary. If the Tribunal is satisfied the exemption is necessary it then considers whether the exemption is appropriate and reasonable, whether there are other non-discriminatory ways of achieving the purpose, whether the exemption is in the community interest and whether other persons or organisations support the application.[10]
[10]Exemption application re: Boeing Australia Holdings Pty Ltd & related entities [2003] QADT 21.
[31] In regards to examining whether the exemption is necessary the Tribunal turns to the Act to see if a specific defence or ‘permanent’ specific or general exemption is open to a person or organisation should a complaint subsequently arise from the proposed circumstances or action that is the subject of the application.
[32] In the current application the Tribunal is satisfied that, on the face of it, the Women’s Scholarship, as described by Credit Suisse, would fall within the provisions of the Act relating to the personal attribute of sex in the pre-work, work and the provision of goods and services areas under the Anti-Discrimination Act 1991.
[33] However the Act also provides for general exemptions.[11] The Act states that it is not unlawful to discriminate with respect to a matter, that is otherwise prohibited under part 4 if an exemption in sections 104-113 applies.[12]
[11] Anti-Discrimination Act 1991, ss 103-113.
[12] Ibid, s 103.
[34] More relevantly section 105, which deals with equal opportunity measures, provides that a person may do an act to promote equal opportunity for a group of people with an attribute if the purpose of the act is not inconsistent with the Act.
[35] This type of provision is generally referred to as ‘positive discrimination’ or in some jurisdictions as a ‘special measure’.[13] n exemption under this provision would make the Credit Suisse Women’s Scholarship not unlawful if it could establish that the Scholarship would promote equal opportunity for women in the finance services industry and protect them from unfair discrimination in employment.
[13] Sex Discrimination Act 1984 (Cth), s 7D.
[36] One of the purposes of the Act is to promote equality of opportunity for everyone by protecting them from unfair discrimination in certain areas of activity including work, education and accommodation.[14]
[14] Ibid, s 6(1).
[37] Credit Suisse in its application seeks an exemption pursuant to section 105 of the Act, and although perhaps made in error, clearly envisaged that that provision was the most appropriate exemption to which the proposed Scholarship may apply.
[38] Credit Suisse has referred to and provided reports concerning the particularly low participation rate of women in leadership and other senior positions in the ASX 200 companies and the financial services industry notwithstanding the higher representation of women in middle management and the front-line service.
[39] Credit Suisse has also provided statistics in relation to the under-representation of female applicants for its summer internship and graduate program.
[40] The Tribunal accepts the reports as demonstrating the under-representation of women in these areas and is of the view that these reports could go some way in assisting Credit Suisse in satisfying the provision of section 105. he Tribunal notes, apart from noting the historically low uptake rates by female graduates in the investment banking area of the financial services workforce, Credit Suisse has not specifically outlined the cause of this disparity, or provided specific evidence that the disparity arises from unfair discrimination and Credit Suisse may need to give further consideration to these issues to make out an exemption under section 105.
[41] However it is not the Tribunal’s role in this application process to make a decision in relation to whether or not an exemption under section 105 applies to a particular set of circumstances or proposed action, but rather, does the Tribunal consider that the section 105 exemption is reasonably open to Credit Suisse to argue should a complaint arise.
[42] Whilst acknowledging there is no absolute certainty for Credit Suisse in relation to whether it could establish an exemption under section 105 the Tribunal is satisfied that this provision of the Act is reasonably open to it should a complaint arise.
[43] Credit Suisse already has statistical information and if it could provide information relating to the cause of the disparity between the numbers of men and women in the upper echelons of the financial services and how other scholarships may have been used to address unfair discrimination of both a historical and contemporary nature Credit Suisse may have a reasonable foundation on which to base a case.
[44] In all the circumstances the Tribunal is satisfied, given the availability of the exemption provided in section 105, that it is not necessary to grant an exemption under s 113.
[45] The application for exemption is dismissed.
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