Wesley Mission Brisbane[2015] QCAT 231

APPEARANCES:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).

REASONS FOR DECISION

1. [1]
   Wesley Mission Brisbane wants to employ a Youth Support Worker to work in its operations from a base at Eagleby as part of the Youth at Risk Alliance Program (YARA Program).  The youth worker will assist the Complex Needs Assessment Panel Co-ordinators in providing flexible support and assistance to persons who are provided services by the organisation. 
2. [2]
   There are currently two youth support workers already employed in the role but one of the current workers will take six months leave and a replacement worker for that period is required.  One of the current workers is female and the other is a male.  Wesley Mission Brisbane has applied to QCAT for an exemption under the Anti-Discrimination Act 1991 to recruit a male worker for the position that needs a replacement during the absence of the permanent employee.
3. [3]
   According to the evidence provided in support of the exemption application, the YARA Program supports young people between 10 and 17 years of age, with complex needs which include challenging aggressive sexualised behaviours.  Young people are referred to the Program by the Complex Needs Assessment Panel which is made up of a variety of Government bodies and community youth program providers.
4. [4]
   Wesley Mission Brisbane has submitted that the circumstances of the work to be carried out by the youth worker gives rise to a requirement that the worker to be recruited should be male. 
5. [5]
   The applicant’s evidence is that some clients manifest behaviours including sexual assaults on other clients of the service, drug abuse, general assault and vandalism which requires the clients of the service to be supervised when using toilet facilities and when attending indigenous men’s business.  The YARA Program is involved with a number of activities targeted for males and with some activities which include indigenous men’s business. 
6. [6]
   The evidence given to the Tribunal establishes that the Complex Needs Assessment Panel make recommendations that certain clients are placed with a male youth worker.  Some 80% of young people referred to the YARA Program are male.  Wesley Mission Brisbane has no alternative male employees who are available to supervise clients in the bathroom and when attending indigenous men’s business. 
7. [7]
   The Position Description for a Youth Support Worker describes the responsibilities of the youth worker.  These tasks include supervising, supporting and assisting clients of the service to achieve their case management goals, co-operating, liaising and negotiating with stakeholders about the clients, transporting clients and carers to activities both within and outside business hours, supervising clients undertaking indigenous men’s business, facilitating and managing specified programs and serving as a role model to clients.
8. [8]
   The selection criteria for the position requires tertiary qualifications or relevant work experience in working with young males who have complex needs, challenging behaviours and a history of offences including sexual offences, physical assault and substance abuse.  The selection criteria specifically require someone who has the ability and willingness to supervise males using bathroom and change room facilities and a demonstrated understanding of indigenous and cultural issues impacting on young male clients. 
9. [9]
   Other selection criteria include a proven experience in managing and facilitating groups of high need clients, a demonstrated ability to engage effectively with clients, families and service providers.  
10. [10]
    The applicant provided to the Tribunal the terms of reference for the Youth Complex Needs Assessment Panel.  The criteria for cases brought before the Panel does not set out gender specific issues. Rather the criteria specifies referral of young people at risk: aged between 10 to 17 years of age, having multiple and complex needs, being at risk of harm, and having evidence that current service provision has been unable to meet the needs of the young person. 
11. [11]
    I accept the evidence that 80% of the young people referred by the Complex Needs Assessment Panel to the YARA Program run by Wesley Mission Brisbane are males.  I find that it is an inherent requirement for a male youth support worker to be available to carry out the whole range of tasks involved in the YARA Program, particularly supervision of male clients in bathrooms and change rooms and during indigenous men’s business activities. 
12. [12]
    However, the evidence does not support a finding that the role of youth support worker is only effectively carried out by a male employee.   There is at present a female youth support worker employed by Wesley Mission Brisbane in the YARA Program.  A reasonable inference must be able to be drawn that many of the tasks involved in that Program can be carried out by either a male or female youth support worker.  What is essential is that at all times there is at least one male youth support worker available to perform the whole range of services required in the YARA Program. 
13. [13]
    If Wesley Mission Brisbane were to restrict its recruiting activities to sourcing a male for a general vacancy in the role of a youth worker, a complaint could be made that its actions were discriminatory.  The organisation may not be able to sustain the argument that it is always an inherent requirement of the role that the youth support worker be male, in all circumstances. 
14. [14]
    Wesley Mission Brisbane has applied for an exemption under section 113 of the Anti-Discrimination Act 1991 to recruit and employ a male for the role of Youth Support Worker. The Anti-Discrimination Commissioner Queensland provided written input into the exemption application and informed the tribunal that his Commission had no objection to an exemption being granted to cover the period when the male incumbent for the role would be on leave for six months.
15. [15]
    In considering this application for exemption, the Tribunal must have regard to whether an exemption is in fact necessary.^[1]  If there is a specific exemption in the Act excusing what would otherwise be discriminatory conduct from liability, a general exemption under section 113 is not required.  The applicant had referred to section 25 of the Anti-Discrimination Act in its application.  That section would permit the applicant restricting its recruitment efforts to males only if there was a genuine occupational requirement that only males could perform the role of Youth Support Worker in the YARA Program.  
16. [16]
    I am satisfied that the evidence does not support a finding that a Youth Support Worker must only be a male.  However this is an unusual case where I am satisfied that there must be at least one male Youth Support Worker at Wesley Mission Brisbane in the YARA Program if the whole range of tasks involved in that role are to be adequately performed.  I am satisfied that to fulfil the needs of that Program, an exemption under section 113 is necessary at this time to permit Wesley Mission Brisbane to recruit a male for the vacancy in the role of Youth Support Worker when currently the other Youth Support Worker employed by the applicant is a female.
17. [17]
    I am satisfied that the evidence establishes that it is appropriate and reasonable to grant an exemption to permit the current vacancy to be filled by a male.  I am also satisfied that the exemption should also extend to permitting Wesley Mission Brisbane to restrict recruitment to a male for the role of a Youth Support Worker in the YARA Program at other times when there is no other male Youth Support Worker available to work in the YARA Program.   For that reason, I have granted the exemption under section 113 for a period of 5 years.