Victorian Civil and Administrative Tribunal|2000-01-29

RMIT - Exemption [2000] VCAT 409 (29 January 2000)

AT MELBOURNE ON WEDNESDAY 16 JUNE 1999 AT 10.05 A.M.

DEPUTY PRESIDENT: Very well. I am now in a position to be able to make a decision on this exemption application and it is that the exemption should be granted. The reasons for my decision are these. This is an application by RMIT which is a university established under the Royal Melbourne Institute of Technology Act 1992 for exemption to enable it to offer two out of ten post-graduate scholarships for women only and to advertise academic positions within the university and to state in the advertisements for those positions that women are encouraged to apply.

There is a considerable amount of material which has been put to me by way of exhibits and also in the application and by way of submission and I summarise that shortly. It is best for us however to summarise the relevant law. That is basically contained in a case called In Re Fernwood which is relating to the previous exemption provision under the now-repealed Equal Opportunity Act (1984) but which equally applies to s.83 of the Equal Opportunity Act (1995).

The principles broadly are these. The Tribunal has a very broad discretion to consider whether to grant or refuse to grant exemptions under s.83 of the Equal Opportunity Act (1995) which I will call the Act. It will not grant an exemption unnecessarily, that is where there is not a possibility of discrimination or where an express exception provision in the Act clearly applies, then there is no necessity to consider the application further.

The second broad principle is that if in fact the Tribunal does go on to consider an exemption application, it will look at all the circumstances put before it of course, including whether there is some overriding public interest to justify the granting of the exemption and also whether the exemption is within the objectives of the Act.

Now, one of them clearly does not apply because that is to eliminate discrimination as far as possible by prohibiting, in effect, discrimination on the basis of various attributes. Of course, what the effect of an exemption is is to make conduct which would otherwise be unlawful discrimination lawful.

But the second objective is relevant and that is to promote the recognition and acceptance of everyone's right to equality of opportunity. So it is in that broad legislative context that this application is made.

Turning now to the matters that have been submitted to me and the summary of the material before me. The application is made because there has been and still is a very great imbalance in the number of females who undertake post-graduate work in engineering and who become academics in the engineering faculty. The university sees this as a problem and has already attempted a number of measures to redress this but those measures have only been successful in relatively small part.

The university wants to be able to have more success in this field and ultimately to be able to encourage as many women as possible to attempt the academic life in engineering and would hope, it would appear in the end, to have approximately equal numbers of this. Now, it is quite clear on all the material before me that this is not the case, despite the various methods which the university has adopted to try to ensure this.

There is a large amount of factual information before me about this matter. It can be broadly summarised as follows. First from the years 1996 to 99, if one looks at total student enrolments in the engineering faculty, it is around about 16 per cent. It is a fluctuating percentage but around about 16 per cent. It varies from 16.1 to 16.8 but it is never more than that and the rest of those who enrol in the engineering faculty courses are male.

When one looks at those who enrol in post-graduate research courses, the figures are tiny. There is only 1.1 per cent approximately of women who enrol in the post-graduate research courses and that is looking at the 1999 figures and even in the course work courses there is only a figure of approximately 1.6 per cent of women who enrol in these courses.

The situation shows a similar imbalance when one looks at the academic population in the engineering faculty. Again there is a much larger number of males than females and the number of females diminishes as one goes up the academic scale. So that, for example, when one looks at the lower levels of the academic scales, the grades A and B for example, there is on the 1998 figures in scale A a percentage of females at 2.5 per cent with males at 11.2 per cent and grade B a percentage of 5.6 females with males making 27.1 per cent.

But as the scale rises, the academic scale rises into the professorial grades, the percentage of females, as I have said, diminishes. So, for example, when one looks at grade D, which is into the professorial grades, there is only a percentage of about 1.4 women to 18.1 male and at grade E, looking at the total population of academic staff in the engineering faculty, there is a percentage of 9 per cent male and no women at all. Similarly when one looks at the research assistant staff, there is again no female and 0.5 per cent male. So quite clearly there is a significant difficulty in attracting females to do post-graduate engineering work and to become academics in the engineering faculty.

The university has sought to deal with this problem in a number of ways. The most important was the introduction of the "Women in Engineering" project and that project, although its name has disappeared, is in fact a set of continuing initiatives which the university still follows. What that project sought to do was in effect to educate children of school age, particularly women of school age, about what the engineering faculty and what an engineering career had to offer and the aim was to try to encourage children at that age who were female to enter the engineering course and eventually take up the engineering profession and become engineering academics.

To do this, the program conducted seminars in schools and at RMIT itself, at both the secondary and primary school level. It conducted workshops and it established a sponsor or a mentor system where more senior female engineering students would in effect mentor and look after more junior female engineering students.

The program had some success. In 1985, the percentage of female enrolees in the engineering faculty was only 5 per cent and as I have said, now it has risen to move somewhere in the 16 per cent range, but still there is a massive imbalance as between males and females who in the engineering faculty undertake post-graduate, particularly research, courses and become engineering academics.

I have been referred to two papers. One published by the National Centre for Women in data matters dated November 1995 and another draft paper called, "Women in Australian Universities" published by the Pro Vice-Chancellor of Griffith University in 1998. What these papers suggest is that in respect of RMIT's current policies, on the very best case scenario there might perhaps be equal numbers in 2055 and if there is any plateauing, (and there appears to be in the figures) if in fact the percentage of women does not continue to increase, then there will be no equal numbers of women in the undergraduate enrolment level, post-graduate enrolment level or academics in the 21st century at all.

The paper suggests that one of the difficulties that women have is that higher qualifications, post-graduate qualifications are necessary to be able to go into the engineering academic field and it is this that they lack.

So this application is directed to try to be a further initiative to redress this male/female imbalance and to encourage women to undertake post-graduate research and to obtain post-graduate qualifications, which will in turn enable them to become engineering academics and eventually will of course go to redress the imbalance that currently exists.

Looking now briefly at the application of the Equal Opportunity Act to the material before me, I think it is clear that there is possible discrimination. That is all I need to be satisfied of. If there were no exemption in this case and the advertisements and scholarships were proceeded with in the way the university proposes, there is no clearly applicable exception provision in the Act. Section 82 does deal with special benefits, services or facilities designed to redress or prevent or reduce a disadvantage suffered by people with a particular attribute in, among other things, education.

There is a query whether both these measures are in fact special benefits or services, or whether they could be seen as applying equally or being of a general educational nature. So that makes me turn to look at the exemption application. In my view the application will promote one of the objectives of the Act and that is to promote the acceptance and recognition of everyone's right to equality of opportunity.

What the application seeks to do is to raise the numbers of women who apply for post-graduate courses and who then complete them and go into engineering academia. That seems to me to be within that objective of the Act. There also is, it seems to me, an overriding public interest involved here and that is to ensure that there are, if possible, roughly equal numbers of women and men in the post-graduate course area of engineering and in the academic area of engineering. That will have benefits both to male and female academics and post-graduate students alike and, I might say, to undergraduate students in the engineering area. It will help as a role model also to other women who wish to become engineers and will attract women to the engineering career, and the academic career in particular.

So it seems to me that this exemption is consistent with the objectives of the Act and that also there is a considerable public interest in what is being sought. I should add that the disadvantage, comparatively speaking, to men is not so great that it would justify the refusal of this exemption application. Only two of the 10 scholarships being offered are being set aside for women only and, as far as the advertisement is concerned, women are encouraged to apply, but there is no suggestion that applications will be dealt with when they are received otherwise than on their merits so that women and men, when they do apply, will have an equal chance of being appointed to the relevant academic position.

The statement in the ad will help alert women to the fact that, as is quite clear from a number of documents exhibited to me, RMIT has a number of policies which are designed to help those who have family responsibilities, both male and female. They include the leave arrangements commonly known as 48-52, nine day fortnights, policies concerning the presence of children in the workplace, policies concerning parental and carer leave, and all those policies will benefit both males and females equally. What the statement in this advertisement does is to in fact encourage women to think of applying for these positions.

On all these bases I propose to grant the exemption. It seems to me that it is sensible to grant it for a period of three years. It is not entirely clear exactly when these ads are going to be placed, or how often and for how long the scholarships might be offered as well, so I intend to grant the exemption for the maximum period which the legislation allows. The exemption is not operative until it is published in the Government Gazette and the Tribunal will advise the applicant when that happens. The last thing I should ask is do you require a transcript of these reasons?

DEPUTY PRESIDENT: Yes, certainly. We'll send you that as soon as it is to hand.

MS MERCURI: If I could just also clarify one issue in relation to - - -

MS MERCURI: - - - the scope of the exemption that has been granted. The exemption in relation to the advertisement would also apply to the advertisement of the scholarships for women.

Melbourne Institute of Technology Act 1992

RMIT - Exemption [2000] VCAT 409 (29 January 2000)

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Judgment (29 paragraphs)

RMIT - Exemption [2000] VCAT 409 (29 January 2000)

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