Men account for more than 90% of prisoners in Australia. Should businesses treat all male employees as a higher risk of committing criminal acts in the workplace? Should all businesses put restrictions upon the responsibilities assigned to men?
A recent incident involving allegations of sexual abuse by a male educator working in childcare has sparked debate about the ongoing role of men in childcare settings.
This article sets out five reasons why businesses operating in the early childhood education and care (ECEC) sector should not implement sex-based restrictions in response to the recent safety debate in the sector.
The insights obviously have a broader application to all industries.
The Debate
Three questions keep being repeated in the name of safety:
- Should men be banned from working in childcare settings?
- Should men be banned from changing nappies in childcare settings?
- Should men be banned from working alone with children?
Each question suggests that the sex of an educator can increase risks to the safety of children.
So far, at least one prominent childcare centre in Victoria has implemented a blanket ban across its centres in response to “the risk”: all male educators are banned from nappy changes and toileting duties.
The Minister for Education contributed to the debate stating, “just cutting blokes out altogether is not going to be the solution”. The Minister cautioned against limiting conversations about safety to one gender. He also announced that legislation will shortly be introduced to enable Commonwealth funding to be pulled from providers that fail to meet safety and quality standards.
Safety is not a silo
Before we go any further, it is important to remember that all employees have a right to a discrimination-free workplace. Those protections are set out in federal and state-based anti-discrimination legislation as well as the general protections regime under the Fair Work Act 2009 (Cth).
To approach safety compliance in a silo is dangerous. Compliance with safety duties and obligations must be considered in conjunction with other workplace laws. Ignoring that broader context will open you up to costly claims of unlawful discrimination and adverse action.
Five reasons why banning men is risky
Here's five reasons why implementing a total or partial ban on male educators is risky for businesses in the ECEC sector.
1. Sex discrimination is unlawful
A total or partial ban on male educators is a clear example of sex discrimination.
This is because:
- the male educators are being treated less favourably to the female educators – by having their employment opportunities, conditions or responsibilities reduced; and
- the decision is made because of the male educator’s biological sex.
Further, if the sex of the educator contributed to the decision to implement such a policy, absent any applicable exemption, it will be difficult for an employer to establish the ban was not unlawful.
The onus will rest with the employer to prove the ban was not unlawful; a reverse onus.
2. Sex-based harassment is unlawful
A total or partial ban on male educators may also constitute sex-based harassment.
This is because a restrictive sex-based policy that characterises all men as a risk to the safety of children would be:
- expected to be ‘unwelcomed’ by the male educators at a particular centre, not the least because it is based on an assumption that men are more likely to engage in sexual abuse against children than women
- ‘demeaning’ for the male educators employed at the centre due to the highly negative inferences that arise from such a policy; and
- a reasonable person having regard to all the circumstances would expect the possibility of a male educator experiencing ‘offence’.
Again, the onus will rest with the employer to prove the ban was not unlawful.
3. Contravention of the positive duty
All employers have a positive duty to take all reasonable and proportionate steps to eliminate sex discrimination and sex-based harassment from the workplace.
Excluding men from the workplace or a task that forms part of the inherent requirements of the work – because of their sex and/or a perception that their biological sex alone increases risks to the safety of children – is inconsistent with that duty.
Enforcement action could be taken by the Australia Human Rights Commission in response to this contravention.
4. Psychosocial hazards
Multiple psychosocial hazards can arise from the decision to restrict the ability of certain workers to participate in the workplace because of their sex.
This is because a total or partial ban on male educators:
- characterises male educators as a threat to the safety of children, this may lead to poor workplace interactions between male educators and parents, and between male and female educators
- introduces an unfair policy that only impacts educators of a particular sex – a form of sex discrimination and/or sex-based harassment
- promotes unequal treatment by management toward educators based on their sex, which results in male educators encountering poor support from management
- the practice will impact job demands in the workplace because in addition to maintaining ratios, educators will now need to restrict certain tasks to educators that are women; and
- the organisation of work allocation based on sex may lead to conflict between educators in the workplace.
Each of the above hazards arises from or relates to the decision to implement a ban on male educators and may cause psychological harm to both male and female workers or others.
5. Unlawful adverse action
Under the general protections regime, it is also unlawful for a provider to discriminate between:
- employees because of their sex (e.g. by restricting an educator’s duties and responsibilities because they are biologically male); or
- prospective workers because of their sex (e.g. by denying a prospective worker from being considered for an educator position because they are biologically male).
In both instances, the onus will rest with the employer to prove that the discriminatory reason was not unlawful. This means absent evidence establishing the application and availability of a statutory exemption, it will be assumed that the provider has acted unlawfully.
Enhancing Safety
Providers should periodically review the control measures implemented to eliminate or minimise risks to the health and safety of children at their centres.
Consistent with the primary duty of care to ensure safety, control measures should be identified and implemented prior to any employment offer being made to educators of either sex. Examples of this proactive approach to risk management may include:
- incorporating behavioural and scenario-based questions into the interview process for all prospective educators (e.g. “If you saw a co-worker acting inappropriately, what steps would you take in response?”);
- requiring behavioural testing to be completed as part of the interview process by all prospective educators, which may provide further insight into the decision-making skills of the prospective educator and whether or not any behavioural concerns arise based on the results;
- formalising a system for reference checks for all prospective educators, this may include creating standardised questions to be raised with former employers to verify previous positions held, reasons for leaving, areas for development (both behavioural and competency) and confirm that no behavioural incidents of concern arose from that employment; and
- ensuring all educators have completed a Working With Children Check.
Further control measures that may be implemented and maintained during the employment of all educators include:
- the provision of training and information to all educators about safe and quality work practices, together with a form of assessment to ensure understanding
- maintaining standard operating procedures to promote consistency of approach by all educators (again, irrespective of sex)
- establishing hazard identification and reporting procedures, all educators should know what behaviours are not acceptable and how to report any concerns to management; and
- introduction of CCTV at centres as means of providing further oversight and to deter inappropriate conduct.
Providers should also stay up-to-date with the reform discussions happening throughout the ECEC sector. The Australian Childcare Alliance is currently participating in discussions with the Government, including the various Ministers for Education and Early Learning, about enhancing safety across the ECEC sector.
Should you have any concerns or questions about safety compliance, please feel free to contact us at info@ablawyers.com.au or 1300 565 846.
