Victorian Civil and Administrative Tribunal|2010-03-19

For the reasons given above I am not satisfied that Mr Drew's sex was a substantial reason for the development of the policy or its manner of implementation.

In order to establish indirect discrimination in this case it is necessary for Mr Drew to show that a requirement, condition or practice was imposed and that:

(a) Males do not or cannot comply with that requirement, condition or practice and

An assessment of the reasonableness or otherwise of the requirement, condition or practice calls for consideration of all of the relevant circumstances of the case including:

Mr Drew says that says that the requirement or practice imposed is that he and other adult males cannot use the wet change rooms when school groups are having lessons unless there is male supervision available for any male students. On his behalf it is contended further that the requirement or practice is, due to the way the Policy is implemented, that even when there is supervision for the male students, he and other adult males are not able to use the wet change rooms.

The Council and Ms Irvine say that the most that can be said is that a requirement is imposed on Mr Drew that in accessing the services at Aqualink, he is required to use the dry change rooms where:

(a) Primary school children are using the wet change rooms at the same time as Mr Drew; and

(b) There are no male staff members or sufficient male staff members to provide adequate supervision of the male primary school children in the wet change rooms.

As discussed earlier, I have determined the issue to be whether there was same sex supervision available, rather than looking to whether there was same sex supervision by teachers as opposed to other staff, volunteers or parents.

Due to the analysis called for by the definition of indirect discrimination, it is important that the requirement, condition or practice in issue is clearly identified. Mr Drew describes it in terms of being stopped from using the wet change rooms while the Council and Ms Irvine refer to the obligation to use the dry change rooms.

In my view it is more accurate to describe the requirement being imposed on Mr Drew as him being required to use the dry change rooms rather than being banned from the wet change rooms. The usual position is that the wet change rooms may be used but when primary school children are having lessons and there are no male supervisors, that option is unavailable and in its place is the option of using the dry change rooms. At all times change rooms are available - what is different is their location in relation to the pool and other wet activity areas and their attributes.

Is the requirement, condition or practice reasonable?

I have turned first to the question of reasonableness.

When determining the reasonableness or otherwise of the requirement the following principles arise:

(a) The complainant bears the onus of proving that the requirement is not reasonable in the circumstances.[8]

(b) The test of reasonableness is an objective one which requires the Tribunal to weigh the nature and extent of the discriminatory effect against the reasons advanced in favour of the requirement. While not determinative, the subjective preferences of Mr Drew may be relevant in assessing whether the requirement is objectively reasonable.[9]

(c) The test of reasonableness is less demanding than one of necessity but more demanding that a test of convenience. The question is not whether the decision to impose the requirement was correct but rather whether it has been shown not to be objectively reasonable having regard to the circumstances of the case.[10]

(d) The reasonableness of an alternative is not determinative of the issue and the focus must be on whether the requirement itself is not reasonable having regard to all of the circumstances of the case.[11]

(e) All factors must be weighed according to the circumstances of the case.

Matters to be taken into account when considering reasonableness include those listed in section 9(2) and other relevant circumstances.

In contending that the requirement is not reasonable, Mr McKenna for Mr Drew pointed to the following matters:

The impact on Mr Drew including his embarrassment and humiliation at having to walk through the cafe to use the dry change rooms and his decision to stop using the pool, sauna and spa as a consequence.

A lack of evidence produced by the Council showing that there would be a financial burden associated with reversing the Policy and allowing Mr Drew to again use the wet change rooms when swimming lessons are being held.

The Mission Statement of Aqualink which refers to improving the physical, mental and social health and wellbeing of the community by offering accessible and quality aquatic, fitness, recreational, sporting and social facilities to encourage community participation. It was contended that the Policy gives undue primacy to the financial pursuits of the Council over this objective particularly where there has been a failure to investigate ways that the concerns of the schools could be accommodated before the Policy was imposed.

Although the Council had trialled some alternatives to the Policy, it had not considered other ways the students could be supervised. In particular it was suggested that Aqualink or SPSC staff could undertake the required supervision or schools could be required to provide their own male staff or parents to supervise. Further it was suggested that these alternatives could be combined with requiring the students to use the dry change rooms when there was inadequate supervision available from these sources.

Mr Felman on behalf of the Council and Ms Irvine says that the Policy is reasonable for a number of reasons including:

There is a logical and understandable basis for the Policy, that is to allow primary school students to be directly supervised by a teacher and when the teacher is a member of the opposite sex, for this to occur without causing embarrassment or stress to patrons or the teachers themselves.

Alternative arrangements were attempted and only when they were unsuccessful was the Policy introduced.

The dry change rooms offer the same facilities as the wet change room other than their distance from the swimming pool.

Male patrons have been provided with notification of the closure of the wet change rooms.

Many male and female patrons using the swimming pool at times use the dry change rooms in preference to the wet change rooms.

Patrons with disabilities and patrons wishing to use the accessible change rooms walk the same distance to use those rooms as Mr Drew is required to walk in order to use the dry change rooms. Ms Irvine's evidence was that, to her knowledge, they have done so without complaint.
- Schools owe a duty of care to students, which in the case of primary school students reasonably requires them to be directly supervised by teachers at all times when using change rooms. Reliance is placed on the Guidelines.

It is neither reasonable or appropriate for the supervision to be undertaken by an Aqualink or SPSC staff member who may not have the required Working With Children Checks and who would be taken away from their other duties. This alternative is not as efficacious as the requirement imposed by the Policy.

It is neither reasonable or appropriate for supervision of primary school children to be undertaken by parents or volunteers except under the direct control of a teacher. Parents and volunteers are unlikely to be professional educators with the relevant experience and heightened awareness of hazards and risks to monitor the needs of the children. Further they may not have the necessary knowledge of students' medical conditions required to ensure their health and safety.

There is minimal disruption caused to Mr Drew and other male patrons when the wet change rooms are closed and they are required to walk the additional 40 metres to the dry change rooms.

Earlier I concluded that the reason for the Policy was based on concerns expressed by schools about being able to meet their obligation to supervise students.

The evidence was that these reasons were communicated to Mr Drew as being the basis for the Policy both verbally and in writing.

The evidence before the Tribunal, which is accepted, was that school representatives told Ms Irvine that they would have to consider using an alternative facility for swimming lessons if they could not have exclusive access to a change area when same sex supervision was not available. Ms Irvine's evidence was that the income generated by Aqualink for the benefit of the Council from swimming lessons was 10%. The evidence regarding the income from swimming lessons has not been contradicted.

Mr Drew's position was that he had seen staff, in particular Mr Young, act as supervisors in the past. He contends that the students can be supervised by either Aqualink or SPSC staff who are present. Ms Irvine's response was that it was not the role of the staff of Aqualink or SPSC to act as supervisors and that, if that had occurred in the past, it must have been an emergency situation. Mr Drew stated that there was no emergency when he saw Mr Young supervising school students. No other evidence was available as to when that occurred or what the circumstances were.

Ms Irvine's evidence was that staff with childcare duties in the crèche must have such a Working with Children Check but that the lifeguards and part time duty officers do not have those checks. Her evidence regarding SPSC staff was that, it was responsible for ensuring that staff had all relevant qualifications, apparently including where required Working with Children Checks and that it was only responsible for the children during the lessons.

I accept Ms Irvine's evidence that it is not the role of Aqualink or SPSC staff to supervise children while they are changing other than on an emergency basis.

It was suggested that the schools themselves be required to provide the supervisors they consider appropriate to meet their own needs. This would mean that schools would have to ensure that male supervisors attended each swimming lesson and so the male wet change rooms would be always open.

Although this alternative is attractive there was no evidence that it was viable. Indeed the evidence was that there are few male teachers in primary schools and that it was unusual for male parents to attend lessons. I am not persuaded that this alternative was open to Aqualink.

Mr Drew believes that the Council has given undue primacy to the financial benefits from offering the swimming lessons as compared to making available the facilities to patrons such as himself. In my view it is inaccurate to suggest that the Council and Ms Irvine have placed on opposing sides the interests of patrons such as Mr Drew and the schools.

Mr Drew is still able to attend the centre and use the facilities he prefers. Other males can continue to do the same. The swimming lessons are not offered every day of the year - they are held on week days of the school year between 10am and 2pm. In school Terms 2 and 3 the lessons are held less often. During those hours Mr Drew is required to use change rooms other than those he prefers. Alternatively, Mr Drew can chose to use Aqualink at times when lessons are not scheduled and so avoid entirely the operation of the Policy.

The evidence was that the dry change rooms were approximately 40 metres from the swimming pool while the wet change rooms were within around 8 metres of the pool. The spa and sauna are located near the pool but further away from the dry change rooms than the pool. While Mr Drew said that the dry change rooms were smaller and were cramped by comparison, there was no suggestion that the dry change rooms were so overcrowded as to not be able to be used when Mr Drew needed to change.

Mr Drew produced no evidence of disadvantage other than his personal embarrassment and distress. While his concerns are understandable to a point, any person using the swimming pool, spa or sauna may be observed in a state of undress by other patrons. Those patrons may have just arrived at the centre, may themselves be swimming or using the other wet facilities or may have changed and are about to leave. It is not uncommon for patrons of such facilities to walk around in swim wear, covered by a towel or not.

Mr Drew has physical access to the wet change rooms and may cover himself to protect his modesty. I make this comment mindful that other patrons are required to use change rooms which are not located as close to the swimming pool as compared to the wet change rooms. In particular, patrons with disabilities and family groups wishing to use the access change rooms are also required to walk an approximately 40 metres extra distance.

I accept that the male patrons cannot change the gender of the teachers or other supervisors sent from the schools but I accept that the requirement is reasonable having regard to the evidence about the alternatives trialled and the layout of centre. I am satisfied that Mr Drew and other male patrons can comply with the requirement to use the wet change rooms and that the cost of not providing exclusive access to the schools may have been to lose the important income earned from lessons. These matters also demonstrate that the Policy is reasonable.

Being satisfied that the Policy is reasonable, the claim of indirect discrimination cannot succeed.

For the reasons set out above I am not satisfied that Mr Drew has shown that the Council and Ms Irvine engaged in indirect discrimination as defined in section 9 of the EO Act.

I am not satisfied that either direct or indirect discrimination as defined have been established and so there is no basis on which to conclude that there has been prohibited discrimination against Mr Drew contrary to the EO Act. In those circumstances the Complaint is dismissed.

I note that there is a reserved costs order in this proceeding made at the completion of the strike out application. I did not hear the parties on the issue of costs and reserve liberty to apply by 16 April 2010.

[1] Waters v Public Transport Corporation [1991] HCA 49; (1991) 173 CLR 349 at 372 per Dawson and Toohey JJ

[2] Morgan v Austin Health & Anor [2007] VCAT 2229 at [22] per Harbison J

[3] Purvis v State of New South Wales and Anor [2003] HCA 62; [2003] 217 CLR 92

[7] Richards v State of Victoria (1969) VR 136

Schou (No 2) [2004] VSCA 71; (2004) 8 VR 120; State of Victoria v Turner [2009] VSC 66

[9] Secretary, Department of Foreign Affairs and Trade v Styles [1989] FCA 342; (1989) 88 ALR 621; Commonwealth v Human Rights and Equal Opportunity Commission (1995) 63 FCR 74

[10] Styles; Waters; Schou; Catholic Education Office v Clarke [2004] FCAFC 197; (2004) 138 FCR 121

Opportunity Act 1995

Drew v Whitehorse City Council (Anti-Discrimination) [2010] VCAT 372 (19 March 2010)

Adapting the words of Gummow, Hayne and Heydon JJ in Purvis v State of New South Wales and Anor [2003] HCA 62; [2003] 217 CLR 92 at 160 to this case, the task is to make a comparison between the treatment offered to a male and the treatment that would have been given to a female having identified the circumstances attending that treatment given to the male. What must then be examined is what would have been done in those circumstances if the person concerned was female.

Drew v Whitehorse City Council

At a glance

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Judgment (64 paragraphs)

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Legislation Cited (1)

Cases Cited (9)

Drew v Whitehorse City Council (Anti-Discrimination) [2010] VCAT 372 (19 March 2010)