WA FEDERATION OF SCHOOL ADMINISTRATOR ASSOCIATIONS

 Extracts From the Recent Equal Opportunity Hearing

  

IN THE EQUAL OPPORTUNITY TRIBUNAL OF WESTERN AUSTRALIA

No 29 of 1997

 BETWEEN:

MINISTER FOR EDUCATION Applicant

 -and-

COMMISSIONER FOR EQUAL OPPORTUNITY First Respondent

 -and-

 STATE SCHOOL TEACHERS UNION OF WA (INC) Second Respondent

 -and-

 WA SECONDARY DEPUTY PRINCIPALS' ASSOCIATION Third Respondent

 -and-

 DIRECTOR OF EQUAL OPPORTUNITY IN PUBLIC EMPLOYMENT Fourth Respondent

 -and-

 WESTERN AUSTRALIAN PRINCIPALS FEDERATION Fifth Respondent

 

 REASONS FOR DECISION

  

BEFORE: Mr L W Roberts-Smith, QC - Acting President

Ms R Kean - Member

Ms B Brice - Deputy Member

COUNSEL: For the Applicant - Mr D Matthews

For the First Respondent - Ms H Andrews

For the Second Respondent - Ms S Bird

For the Third Respondent - Ms Street

For the Fourth Respondent - Ms G Braddock

For the Fifth Respondent - Ms N Foley

 

Date of Hearing: 8 September 1997

 Reasons for Decision delivered: 25> September 1997

 

 The Equal Opportunity Act 1984 (WA) ("the EO Act") came into operation on 8 July 1985.

 

On 6 July 1987 the Tribunal granted an application by the Minister for Education ("the Minister") made under section 135 of the EO Act for an exemption from the operation of the provisions of section 11 of the EO Act. (Minister for Education and Commissioner for Equal Opportunity and Ors, (1987) EOC 92-198). The latter made it unlawful for an employer to discriminate in employment against a person on the ground of the person's sex, marital status or pregnancy. No conditions were imposed in relation to the exemption (although there was an express power in section 135(6)(a) to impose terms or conditions on the grant of it) and it was made for the maximum period of 5 years. (Section 135(6)(d) EO Act).

 Shortly before that period of exemption expired the Minister lodged an application seeking an extension of the exemption for a further 5 years, to 6 July 1997. That application was granted by the Tribunal on 29 April 1993 with retrospective effect from 6 July 1992. Although some

parties had argued strongly for the imposition of conditions on the extension the Tribunal had regard to an undertaking by the Ministry to comply with those sought and to indications that appropriate steps were being taken to address the main areas of concern, and so did not impose formal conditions.

 On 23 June 1997 the Tribunal received an application by the Minister for a further extension of the exemption to cover the period 6 July to 31 December 1997.

 The exemption throughout has been from the provisions of Section 11 of the EO Act so as to allow the retention of gender-linked deputy principal positions in specified categories of schools throughout Western Australia. Under the Education Act Regulations 1960 ("the regulations") certain classes of schools are designated to have two deputy principals. These positions are gender-linked, in that one deputy principal of each sex is required. Certain other classes of schools are designated as having three deputy principals, two of whose positions are gender-linked.

 In its reasons for decision in respect of both the original application for exemption and the first application for extension the Tribunal found that retaining gender-linked positions would give some women an advantage when promotion to these positions was considered. The Tribunal also found that, in the past, women had not been promoted to senior positions in the Education Department commensurate with their numbers or abilities and that this imbalance was so great that if the exemption was granted, that must have the effect of promoting the recognition and acceptance within the community of the Equality of men and women.

 

 WESTERN AUSTRALIAN PRINCIPALS' FEDERATION

 The Western Australian Principals' Federation, ("the Federation"), is an incorporated association representing the WA Primary principals' Association, the WA District High School Principals' Association, the WA Secondary Deputy Principals' Association, the WA Primary Deputy Principals' Association, the WA Education Support principal's Association, the Heads of Department Association of WA and the WA District High School Secondary Deputy principals' Association.

 It should be noted that in the application before the Tribunal, the Federation did not purport to be acting on behalf of the W A Secondary Deputy principal's Association which, of course, was separately represented.

 The Federation was not opposed to the application by the Minister for an extension of the exemption order until 31 December, 1997, but did oppose the proposal by the Commissioner that the exemption for male gender-linked positions be ended immediately. Likewise, the Federation generally opposed imposition of the conditions sought by the Director.

 The first ground of opposition to the conditions sought by the Director was that those conditions concerned amendments to the Department's Equal employment opportunity management plan and that such an application would properly have to be brought under section 147 of the EO Act and not as an adjunct to an application for exemption under section 135(2). The Federation pointed out that, significantly, the processes in relation to applications under section 147 of the EO Act had not been followed.

 The second ground of objection to the conditions sought by the Director was that had a reference in relation to amendment of the EEO management plan been made under section 147, the Tribunal would not have had power to make the order sought. The EO Act specifically contemplates the process by which variation of an EEO management plan may be sought. The order sought by the Director is properly a matter on which the Minister may make a direction. It was submitted that the Tribunal does not have power to make such an order pursuant to section 135 or that, alternatively, it ought not to make such an order given the provisions of sections 147, 152 and 153 of the EO Act.

 The third ground of objection to the conditions sought by the Director was that the proposed conditions operate beyond the life of the exemption order and that was not what was contemplated by section 135 nor the objects of the EO Act.

 In the course of the hearing before the Tribunal the position of the Federation, in relation to the conditions sought by the Director, was put rather more succinctly by Ms. Foley as being first, that the Tribunal has no power to make the order sought and, alternatively, even if there were such a power, it would be inappropriate to exercise it in the circumstances of this case.

 The Federation further, in more general terms, opposed the conditions sought by the Director that the Department amend its EEO Management Plan to achieve by 31 December 1997 an end to the practice of filling vacant promotional positions through transfer and that all promotional positions be filled through merit-based selection on the ground that the time frame was too short. It was submitted that the imposition of such a sudden change would disadvantage members of the Federation's constituent bodies who have made personal sacrifices and undergone hardship in the legitimate expectation that they would be able to transfer to more favourable locations or to the city from country positions. The Federation argued that it would be reasonable and appropriate for these people to be given time to adapt to changes in the transfer system.

 The Federation also opposed the conditions sought by the Director that the Department amend the plan to allow three-year trained teachers to apply for all promotional positions from 1 January~ 1999 on the grounds that:

  1. The Tribunal has no evidence before it on which to make an assessment of the value in promotional terms of a four-year qualification as opposed to a three-year one.

 

 B. It is inequitable to lower the requirement to three years training as this does not recognise the expense and time taken by current employees to obtain four-year qualifications and the current standard adopted by tertiary institutions is that students are required to complete four-year qualifications. In relation to the latter, it was said the time and expense taken by these students and the current tertiary standards obtained by them it would, in the end, not be recognised.

 C. There are other means by which a three-year qualified person may be recognised as equivalent to a four-year qualified person and these alternative means should be explored.

The Federation opposed the proposal by the Commissioner that the male gender-linked positions be ended immediately on the ground first, that the Commissioner was effectively seeking a different exemption. It was submitted the current exemption is from the provisions of section 11 of the EO Act in respect of the appointment of deputy principals at certain classes of schools whereas the Commissioner is seeking an exemption which is not directed at achieving gender balance in these roles but rather to achieving greater access for women to these positions. It was argued that it was not proper for the Tribunal to impose "a new and different exemption".

 The second ground on which the abolition of the male gender-linked position was opposed was that the exemption sought by the Commissioner is in effect wider than that originally imposed by the Tribunal. This was said to be because the current exemption operates so as to seek 50 percent of gender balance whilst the exception sought by the Commissioner would have the effect of giving females a greater share in promotional positions than they could expect under operation of the exemption and that the Tribunal ought not to impose an exemption wider than that sought to be retained by the applicant.

 It is convenient at this point to deal with the Federation's submissions as to the statutory power of the Tribunal to impose conditions of the type sought by the Commissioner and/or the Director.

 

Exemption For Female Deputy Positions Onlv

The Tribunal does not accept the Federation's submission that the Commissioner is effectively seeking a different exemption than that which has obtained to 6 July 1997. The present discriminatory practice which is exempt from constituting a breach of section ii is the practice of male and female gender-linkage with certain promotional positions. Should the Tribunal be minded to limit the exemption to the female linked positions only, that would be simply a more confined exemption than that previously granted but it would not in the view of the Tribunal be a "new and different exemption".

 Nor is it right to say that such a more restricted exemption would be in effect wider than that originally imposed. Whilst in one respect it is true to say that the current exemption operates so as to seek a 50 percent gender balance, that of course is true only in relation to those particular positions. The Tribunal has already adverted above to some of the evidence which suggests that

overall the exemption has operated in combination with the non-gender-linked positions to in fact disadvantage women. The Tribunal does not accept that the exemption sought by the Commissioner would have the effect of giving females a greater share in promotional positions than they could expect under operation of the exemption - indeed the more reasonable conclusion is that were the variation sought to result in a greater proportion of women attaining such positions that would be a desirable end and not in itself discriminatory against men because the proportion of women within the teaching workforce is significantly higher than men and they should therefore, (all other things being equal) , be expected to occupy proportionally more promotional positions.

 

Conditions Sought By The Director

 In substance the Federation's argument in this regard is that because there are specific provisions in the EO Act which provide a process for the Director to refer the EO Management Plan of a public authority to the Tribunal for investigation and gives the Tribunal power to make recommendations to the Minister that such plan be amended (with a further power in the Minister to direct amendment) the Tribunal has no power to itself impose conditions directing or requiring the amendment of an authority's EO Management Plan under section 135(2). Put shortly, this submission really amounts to an argument that the Tribunal cannot do indirectly what it has no power to do directly.

 It is necessary to consider the relevant statutory provisions.

 Part IX of the EO Act deals with equal opportunity in public employment.

 There is no question but that the Department is a relevant authority within the meaning of that term for the purposes of that part.

 The objects of part IX are contained in section 140 which provides that they are -

 (a) "To eliminate and ensure the absence of discrimination in employment on the ground of sex, marital status, pregnancy, family responsibility, or family status, race, religious or political

conviction, impairment or age and;

(b) To promote Equal employment opportunity for all persons in the authorities to which this part applies".

 The position of Director of Equal Opportunity in Public Employment is established by section 142. The functions of the Director are set out in section 143 and they include advising and assisting authorities in relation to Equal opportunity management plans, evaluating the effectiveness of such plans in achieving the objects of the Act and making reports and recommendations to the Minister in relation to them and such other matters as the Director thinks appropriate relating to the objects of part IX.

 Division B of part IX deals specifically with Equal employment opportunity management plans for public authorities.

 By section 145 each authority is required to prepare and implement an EO Management Plan in order to achieve the objects of part IX. The section sets out "specific aspects" which must be covered by such a plan and requires each authority to send a copy of its management plan or any amendment of it to the Director as soon as practicable after it has been prepared.

 Section 146 requires each authority to report to the Director at least once each year as to the EO activities and programmes undertaken and intended.

 Significantly section 147 provides that:

 "Where the Director is dissatisfied with any matter relating to the preparation or implementation of a management plan by an authority, or any failure or omission or failure of an authority with respect to the preparation or implementation of a management plan, the Director may refer the matter to the Tribunal".

Where such a reference is made the Tribunal is required by section 148 to determine the reference and for that purpose may hold an investigation into it.

 Neither the Director nor an authority in respect of which a reference is made is entitled to be represented by counsel or a solicitor during the holding of an investigation into such reference. (Section 149)

 The Tribunal is given certain powers in the conduct of an investigation under part IX. (Section 150).

 Section 152 then provides that:

 "At the conclusion of an investigation in relation to a reference the Tribunal may do either or both of the following -

 (A) Make recommendations to the Director or to the authority in respect of which the reference is made;

 (B) Furnish a report with or without recommendations to the Minister in relation to the reference.

 Finally, on receipt of a report from the Tribunal under section 152 the Minister may direct an authority to amend its Management plan in such manner as the Minister may specify and the authority is thereupon required to comply with such direction. (Section 153).

 It can be seen from a consideration of these provisions that they do not in any way empower nor authorise the Tribunal to impose conditions or make orders going directly to the amendment of an authority's EO Management plan.

 On the face of it the power to impose terms and conditions under section 135(6) is unfettered other than by the general principle of statutory construction that a general statutory power is exercisable only for the purposes of and within the limitations of the objects of the legislation: Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24,39.

 The significant consideration is that section 135 is in fact a provision of general application and the powers of the Tribunal to deal with the EO Management Plans of authorities are the subject of specific provisions in the same legislation.

 In Anthony Hordern and Sons Pty Ltd V The Amalgamated clothing and Allied Trades Union of Australia (1932) 47 CLR 1, Gavin Duffy CJ and Dixon J at page 7 said:

 "When the legislature explicitly gives a power by a particular provision which prescribes the mode in which it shall be exercised and the conditions and restrictions which must be observed, it excludes the operation of general expressions in the same instrument which might otherwise have been relied upon for the same power".

 And further at page 8:

 "An affirmative grant of such power so qualified appears necessarily to imply a negative. It involves a denial of a power to do the same thing in the same case free from the conditions and qualifications prescribed by the provision".

 Likewise, in R V Wallis: Ex parte Employer's Association of Wool Selling Brokers (1949) 78 CLR 529, Dixon J at page 550 said, (in relation to the commonwealth conciliation and Arbitration Act, 1904):

"If it confers a specific power with respect to a limited subject or specifies a manner of dealing with it or otherwise provides what the duty or authority of the arbitrator shall be, then upon ordinary principles of interpretation the provision in that which is done should be treated as the source of his authority over the matter, notwithstanding that otherwise the same or a wider power of the same matter might have been implied in or covered by the general authority given by section 38. This accords with the general principles of statutory interpretation embodied in the maxim expressum facit cessare tacitum and in the proposition that an enactment in affirmative words appointing a course to be followed may usually be understood as importing a negative, namely that the same matter is not to be done according to some other course. This applies especially where the power or duty affirmatively conferred is qualified by some condition, limitation or direction".

 (And see generally Morling J in Herald Sun TV Pty Limited v Australian Broadcasting Tribunal (1984) 57 ALR 309 at 228; Dawson J in Downey V Transwaste Pty Ltd (1991) 99 ALR 402 at 412; and McHugh J in Saraswati v R (1991) 100 ALR 193 at 208.

 Accordingly, having regard to the legislative provisions themselves and the above principles of statutory construction the Tribunal is of the view that it has no power to impose conditions nor give directions going expressly or specifically to the amendment of the Department's EO Management plan.

 That is not to say however that no conditions could be imposed under section 135 merely because they were of a nature which would realistically be likely to see them eventually incorporated into such a plan.

 In the present case counsel for the Director has expressly stepped back from the proposition that the conditions sought by the Director should be imposed upon the Department by way of amendment to the HO Management Plan - rather she has put it on the basis that they should simply be made as conditions. Whether or not they would eventually be included in the EO Management Plan is a separate issue and is something which would be for the Department and perhaps the Director but not the Tribunal.

 

OBSERVATIONS AND FINDINGS

 The Exemption

 No party opposed the extension of the exemption to 31 December 1997 although the Commissioner opposed it to the extent it related to male gender-linked positions.

The lack of objection and/or positive support from interested parties is a significant factor but not decisive. It is still incumbent on the Tribunal to make an assessment of the merit or otherwise of the application.

 As already pointed out, we do not accept the submission that what the Commissioner is seeking is a different exemption. In our view it would simply be a less extensive exemption than hitherto has applied. We therefore propose to deal with the question of the exemption as it applies to male and female gender-linked positions separately.

 

Retention Of Gender-linked positions For Females

It seems clear that notwithstanding the opportunity afforded by the exemption for the last ten years, apart from reliance on it in respect of male and female gender- linked positions, the Department has done very little about Equal employment opportunity in any practical or constructive sense.

 

Retention of Gender-linked positions for Males

 The evidence overall clearly leads to the conclusion that the retention of gender-linked positions for males serves only to exacerbate the unfair discrimination against women.

 In cross-examination, Mr Home agreed that there is no need to advantage men in, as it were, quarantining 50 percent of the deputy principal positions for them. He agreed with the proposition that excluding gender-linked positions, males are over-represented at all promotional levels proportionate to the Departmental workforce as a whole. In re-examination however, he did say that he was speaking of there being no need to retain the male gender-linked positions only after 31 December, 1997.

 

 The Tribunal accepts the submissions made on behalf of the Commissioner and the Director on this issue. There is little doubt that the male gender-linked positions operate in fact actually to increase the disproportion of women in promotional positions having regard to the fact that 70 percent of the workforce (80 percent in the primary sector) is female.

 It is for that reason the Tribunal is not prepared to extend the exemption in respect of male gender-linked positions.

 The so-called "consistency" argument advanced against this does not, in our view, weigh sufficiently against the continuing discriminatory effect of the policy to justify any different conclusion. Furthermore, when considering the merits of the application for extension of the exemption it is pertinent to take into account the period for which exemption has already applied, the Equal employment opportunity concerns which have previously been identified by the Tribunal, the action (or lack of action) taken by the applicant and the Department over the period of exemption to address them and how it is that the situation of present difficulty has been allowed to develop notwithstanding it was known to the Department that the exemption was to expire on 6 July, 1997. Taking these considerations into account also, the Tribunal is reinforced in its view that the desirability of consistency in appointments for 1998 does not justify the continuation of the exemption in relation to male gender-linked positions.

 

Transfer System

 Once again the discriminatory effect against women of the transfer system has been well known to and acknowledged by all concerned for a long time.

 The problem is in making the transition.

 The Department has had ten years to "bite the bullet". It has not done so. In failing to do so it has been acting contrary to the provisions of the EO Act. Beyond reliance of the exemption relating to male and gender-linked promotional positions the Department has done nothing or very little to rectify the situation in any real practical sense.

 Both the Teachers' Union and the Federation submitted that abolition of the transfer system at this stage without considerably more consultation and a suitably long time for implementation of a wholly merit-based system would create industrial and other problems. Apart from practical difficulties likely to be experienced by individual teachers and their families, reference was made

to industrial agreements entered into between the Department and the relevant unions. The Federation drew the Tribunal's attention to the "Collective workplace Agreement for School Administrators", ("the workplace Agreement"), being attachment "T" to the Affidavit of Mr Tonci (Tony) Misich.

 There are two points which may be made about those concerns.

 The first point is that the Workplace Agreement is not particularly specific about this.

 At clause 10.10 transfer rights and limited merit selection are issues which are noted as being the subject of an agreement by school administrators and the Department to participate in the development of career structures.

 In clause 10.14 school administrators agree to undertake and be subject to the selection of school-based staff in schools which choose to change subject to (inter alia) vacancies occurring through transfer, promotion, retirement or any other reason that constitutes a permanent move from the position and the school utilising a consistent and equitable merit~based process to accommodate participation in local merit-selection and transfer.

 Significantly, in clause 11 which deals with "policy and partnership" it is agreed that to.ensure the implementation of the agreement the parties will establish joint task forces comprising a range of interest groups on a number of specific issues including a career structure for school administrators incorporating issues such as transfer and a systemic introduction of merit transfer.

 It was Mr Misich's evidence before the Tribunal that lack of consultation has been fairly commonplace in terms of feedback. Indeed he said that principals had referred the Federation to clause 11 of the workplace Agreement in the context of the Department's current proposals of the phasing out of the transfer system because the first the Federation knew about that proposal was an announcement in the media regarding it and a subsequent letter from Mr Home (which he noted was in fact sent out after the date of the Affidavit filed by Mr Home in the present proceedings)

 Overall the evidence is that despite the fact that the transfer system has been recognised from the outset as a major discriminatory factor against females and notwithstanding the exemption having operated for the last ten years, there has even now been little or no consultation. by the Department with the relevant representative bodies about its removal and the introduction of a merit-based system.

 What the Workplace Agreement effectively requires in our view is proper consultation. It does not necessarily purport to enshrine the promotion on transfer system as an industrial right.

 The second point to be made is that even were that not so and the Workplace Agreement and other industrial agreements did purport to establish promotion on transfer as an industrial right, such agreements could not make lawful discriminatory practices or policies which would otherwise be unlawful under the EO Act - as we are satisfied the transfer system is.

 

When the EO Act came into operation in July 1985 it contained a number of general exemptions. Section 69(1) generally exempted from the provisions of the EO Act (so as to make not unlawful) Acts done under statutory or other specified legal authority. So far as is relevant here that section provided that -

 "69(1) Nothing in this Act renders unlawful anything done by a person if it was necessary for the person to do it in order to comply with the requirement of -

(a) any other Act which is in force when this section comes into operation

(b) -

(c) -

(d) -

  1. an order or award of a court or tribunal having power to fix minimum wages and other terms and conditions of employment (including the payment by an employer of a salary, wage or other remuneration in excess of the amount fixed by such a court or tribunal and whether or not the payment of such salary, wage or other remuneration but for this provision would constitute unlawful discrimination".

 Thus an industrial award or agreement could have made lawful discriminatory conduct which otherwise would have been unlawful under the EO Act.

 However, section 69(2) expressly stipulated that paragraphs (a), (b), and (e) of section 69(1) ceased to be in force at the expiration of two years after the coming into operation of the section unless regulations made under that sub-section provided otherwise. There are no such regulations. The exemption applicable to industrial orders or awards accordingly ceased in July, 1987 and so even if the transfer system were embodied in an industrial order or award that would not make lawful what would otherwise be (as we find) unlawful discrimination under the EO Act.

 We have already made some reference to the evidence and submissions in relation to the disadvantage which it is suggested would likely be suffered by teachers who have presently or recently taken country promotional positions in the expectation that they would have, if not an entitlement, at least an expectation under the transfer system of being able to return to the city or metropolitan area in due course.

 As to this, Mr Misich explained the Federation's position in the following way -

"In terms of dismantling the transfer system our position is that under the proposals the sudden dismantling would have quite a negative impact upon administrators who have already made commitments and have already uprooted families and taken up positions in country locations under the existing process with the knowledge that there was opportunity for them to apply for transfer to.. to either a more favourable location or return to the metropolitan area. In many of these instances partners have ceased jobs and seek whatever employment could be there at the current location. In some instances partners have separated to enter into a life of commuting. The rapid introduction of a merit-based system would be inequitable to many country administrators where. - who don't have equitable access for professional development and the system does not have a methodical or consistent system of training for merit promotion. It's felt that.. the Federation feels that it's this particular group that are the meat in the sandwich. They are caught between directions and standards through the Commission for Equal opportunity (sic) and through the lack of, I guess, activity by the Education Department and as such a rapid introduction of a full-merit system would affect these administrators and their families to the point where their own morale would be very low as indicated by some of the feedback that we've received".

 The Tribunal has given very anxious consideration to these matters. In the end we have come to the view that whilst the course proposed by the Department would have some ameliorating effect in respect of those teachers and their families (to the extent of 50 percent in the first year and 25 percent in the second) there would at the same time necessarily be a counter-balancing continuing disadvantage to women who would be deprived of promotional opportunities during that phase in process.

 Furthermore it is not the case that the transfer system bestowed a right to promotion. There was a right to apply - although we recognise that given the priority of filling city positions by country transfers first the expectation that one's promotion or transfer prospects were thereby enhanced was reasonably realistic at least over time. Nonetheless, teachers who have accepted country postings with expectations based on the existing transfer system would of course still have the right to apply for city or other promotions under a wholly merit-based system.

 So too as the Director observed when the question was put to her:

 "Once again the women are being asked to wait while the majority of the men who have a certain expectation have that expectation met. It seems to me that once again you're asking the women to wait to have a full-merit system and I think it overlooks the fact that all those men are able to apply for a merit-based promotion. You're not leaving them out of the system. It's just that they.. if they had some expectation... the only thing they seem to have had is that they could apply for a transfer. They weren't guaranteed a transfer. They could apply for a transfer. They can now.. -if you implement a full merit-based system they can apply for a merit-based promotion".

 Mr Home recognised that whenever and however it was done, the transition would cause disadvantage or difficulty to some teachers and their families. That is however the unfortunate product of the lack of planning and inaction by the Department on this issue over the last ten years during which it has the benefit of the exemption.

 The proposal to "phase in" the move from the transfer to a merit-based system in the manner described by Mr Home would continue the discriminatory effect against women over that period and quite probably beyond.

 The Tribunal has no doubt that the filling of positions on merit would be the fairer system. On the evidence it would also be likely to be simpler and ultimately more cost effective.

 We accept the submissions of Mr Matthews and Ms Foley that it would be inappropriate for the Tribunal to become involved in the running of the Department or policy making for it and we do not intend to create that situation.

 We do not see a condition directed towards the abolition of the transfer system as involving that.

 The policy is discriminatory. The Tribunal is required to advance the objects of the EO Act. They include the elimination so far as is possible of discrimination against persons on the ground of sex in the areas of work and education and to promote recognition and acceptance within the community of the Equality of men and women.

 The Tribunal has concluded that abolition of the transfer policy is critical to the advancement of the objects of the EO Act within the Department and to that end determines that the extension of the exemption in respect of female gender-linked positions to 31 December, 1997 be conditional upon abolition of that policy and the adoption of a wholly merit-based system by not later than that date.

 

Removal Of Four-Year Training requirement

 The Tribunal accepts that whilst the decision to remove that requirement in respect of level B positions is commendable, the effect of it has been merely to raise the "glass ceiling to level 4. Beyond that the requirement still operates to perpetuate promotional discrimination against women within the Department.

 The Tribunal is not persuaded by the submissions made on behalf of the Federation that removal of that requirement would be inequitable.

 It is important to bear in mind that what is involved here is a requirement for promotion - that is to say the present policy is that a teacher is simply not even eligible for promotion to level 4, 5 or 6 unless. he or she has a four-year qualification. To remove that as a requirement for eligibility would not be inequitable to those who have a four-year qualification: they may still apply for any such position. Nor would it mean that the time and expense devoted by them in gaining a four-year qualification would not be recognised or of less value - a teacher with a four-year qualification would obviously be expected to be recognised as more highly qualified (at least with respect to formal qualifications) than a teacher with a three-year qualification.

 Having regard to these considerations and all of the evidence before it, the Tribunal determines that extension of the exemption in respect of female gender-linked positions to 31 December1 1997 should be conditioned also on removal of the four-year training requirement in respect of all promotional positions within the Department by that date.

 

Monitoring And Review

 The long history of the exemption and the lacklustre response of the Department to it certainly lends force to the submissions of all parties other than the applicant and the Federation that there is no good reason to believe the Department would achieve greater Equal employment opportunity in the future unless encouraged and assisted to do so by a formalised system of joint internal and external monitoring and review.

 The Tribunal sees some force in the Director's submission that the monitoring and reporting conditions sought by her are required for an extended period because extension of the exemption (albeit limited to female gender-linked positions) will have effect until the beginning of 1999.

That is in turn because it will be applied to the filling of promotional positions for 1997/98.

However it is the Tribunal's view that section 135 of the EO Act does not empower it to impose conditions on an exemption which would apply beyond the period of the exemption itself

Monitoring and reporting requirements can be imposed as a condition upon an exemption. That was done, for example, by the South Australian Equal Opportunity Tribunal in Pasminco Metals - BRAS Limited (1991) HOC 92-384.

 

In that case exemptions were granted subject to a number of conditions including that the applicant attend before the Tribunal no later than certain specified dates to report what action had been taken and progress achieved in relation to a number of specific Equal employment opportunity issues within the working environment.

 We accept the submission of the Teachers' Union that the DOEPE Review suggests that the exemption merely maintains the status quo and masks the discriminatory behaviour of the Department and that whilst removal of the exemption may expose the discriminatory behaviour of itself it would not necessarily provide any assistance to the women affected nor to the Department in addressing the problem. To provide a feedback mechanism as was sought would allow strategies to be developed, implemented, reviewed and changed if necessary to ensure the best possible outcome for both the Department and for women seeking promotion in the Department. We further accept that an effective mechanism for achieving that would be the establishment of an Equal Employment Opportunity taskforce comprising departmental representatives and at least one representative of each party to the. present proceedings. The establishment of such a taskforce would also be consistent with the requirement for consultation on Equal employment opportunity and related issues to be found in industrial agreements such as the workplace Agreement and to which reference was made by the Federation and the WA secondary Deputy Principals' Association.

 In respect of the question of the imposition of monitoring and review therefore the Tribunal determines that the extension of the exemption be further conditi6nal upon the Department establishing by not later than Friday 24 October, 1997 an Equal employment opportunity taskforce as specified above. We do not consider it necessary to impose any further condition nor authority for the Director to refer the matter back to the Tribunal since we consider any deficiency or concern which might arise in relation to the role or work of the taskforce could properly and more appropriately, in the circumstances, be the subject of a reference by the Director to the Tribunal under section 147 of the EO Act.

 Nor do we consider it appropriate to impose the other two conditions sought by the Director. They were directed to a review of departmental EEO policies and procedures and the Performance Management System. In our view they would either have to be so broadly stated as to lack utility or would have to be so specific (and ongoing) as to amount to an inappropriate involvement by the Tribunal in the detailed development of departmental policy and planning.

  

CONCLUSION

 It is the determination of the Tribunal for the reasons expressed above that the application should be granted and the exemption be extended from 6 July, 1997 to, and including, 31 December, 1997 but only in relation to female gender-linked positions and subject to the following conditions. Namely that:

 (1) The transfer system be abolished and replaced by a merit-based system by not later than 31 December, 1997 -

 (2) The mandatory requirement of four-year training for appointment to promotional positions be abolished in respect of all promotional levels by not later than 31 December, 1997.

 (3) By not later than Friday, 24 October, 1997 the applicant establish a departmental Equal Employment Opportunity Taskforce comprising departmental representatives and at least one representative of each of the first to the fifth respondents inclusive. Such Taskforce to examine, monitor and review the Equal employment opportunity initiatives being implemented and planned by the Department, the Department's progress in compliance with conditions (1) and (2) above and to advise and assist the Department in the development and implementation of Equal employment opportunity policy

 

 

 

Back to WAFSAA Web