Children by Choice Association Inc., Re [2018] QIRC 153

1 QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: Re: Children by Choice Association Inc. [2018] QIRC 153 PARTIES: Children by Choice Association Inc. (Applicant) CASE NO: AD/2018/91 PROCEEDING: Application for exemption from certain provisions DELIVERED ON: 21 December 2018 HEARING DATE: On the papers MEMBER: O'Connor VP ORDER: 1. Children by Choice Association Inc. is exempt from the operations of sections 14, 15, 15A, 124, and 127 of the Anti- Discrimination Act 1991 in relation to attribute in s 7(a). 2. The exemption applies only to acts or omissions reasonably necessary to recruit sufficient females into positions, including Counsellors, Manager, Communications Coordinator, Campaign Coordinator, and Education and Training Coordinator. 3. The exemption shall apply to the applicant from the date of the application, 2 November 2018 for a period not exceeding five years. CATCHWORDS: ANTI-DISCRIMINATION – EXEMPTION – DISCRIMINATION ON THE BASIS OF SEX – Exemption from operation of provisions prohibiting discrimination – -- 1 of 7 -- 2 services, accommodation, advertising, work – sex and age – organization providing sexual assault counselling to women and pregnant women. LEGISLATION: CASES: Anti-Discrimination Act 1991 (Qld) s 7(a), s 14, s 15, s 15A, s 105, s 124, s 127 City of Brunswick: re. Application for Exemption from provisions of Equal Opportunity Act (1992) EOC 92-450 Downer EDI Mining [2013] QCAT 99 Exemption application re: Boeing Australia Holdings Pty Ltd and Ors [2003] QADT 21 Exemption Application re: Mt Isa Mines Ltd [2001] QADT 16 Exemption application re: Palmpoint Pty Ltd [2006] QADT 12 (7 April 2006) Minister for Education and Commissioner for Equal Opportunity and Ors (1987) EOC 92- 198 Stevens v Fernwood Fitness Centres Pty Ltd (1996) EOC 92-782 United Synergies Ltd [2015] QCAT 89 APPEARANCES: On the papers Reasons for Decision [1] On 2 November 2018 the applicant in this matter, Children by Choice Association Inc.,1 made an application for an exemption from certain provisions of the Anti-Discrimination Act 1991 (Qld). Section 113 of that Act allows this Commission to exempt an applicant from complying with sections of the Act. The applicant describes itself, and the services that it provides, as follows: 1 This application was made by "Children by Choice" as opposed to "Children by Choice Association Incorporated". I have used the full name of the applicant to give certainty to the application. The application is amended under s 174B(e) of the Anti-Discrimination Act 1991 (Qld). -- 2 of 7 -- 3 1. Children by Choice offers counselling services both face to face and over the telephone. This service is to assist women and pregnant women with decision making while experiencing unplanned pregnancy. 2. Children by Choice assists women and pregnant women with counselling and financial assistance when experiencing times of hardship. [2] The exemption sought by the applicant relates to ss 14, 15, 15A, 124 and 127 of the Act and is limited to the attribute in s 7(a) "sex" for a period of five years – the maximum period allowable under the Act.2 [3] Section 14 "Discrimination in the pre-work area" relevantly outlines that a person must not discriminate in relation to the arrangements made for deciding who should be offered work, or, in deciding who should be offered work. Section 15 "Discrimination in work area" prohibits discrimination in the workplace and covers terms of employment; access to opportunities; terminations of employment; training programs; and, the general treatment of the worker. Section 15A "Discrimination by principals" prohibits discrimination against a worker who does work, or is to do work, for another person because of a contractual arrangement between the principal and a third party, or another arrangement between a principal and a third party. Section 124 "Unnecessary information" prohibits a request of unnecessary information on which an unlawful discrimination might be based. Section 127 "Discriminatory advertising" is a penalty provision which prohibits the publication and display of advertisements which in any way contravene the Act; the section also provides a clarification and defences. [4] Exemption applications of this nature fall within the jurisdiction of this Commission because the application is work-related.3 [5] Applications for exemptions must be provided to the Anti-Discrimination Commissioner so that the Commissioner has an opportunity to provide submissions on the application.4 Those submissions are also an opportunity for the Anti-Discrimination Commissioner to address whether there are any complaints against the applicant. The Anti-Discrimination Commissioner's submission, in relation to this application, was received on 14 November 2018. In his correspondence the Anti-Discrimination Commissioner advised that there were no complaints against the applicant and that he had no objection to the application. 2 Anti-Discrimination Act 1991 (Qld) s 113(6)(c). 3 Ibid ss 113, 174B(b). 4 Ibid s 113(2). -- 3 of 7 -- 4 Exemption considerations [6] The power to exempt an applicant from the operation of a particular part of the Act is discretionary. On the face of the Act the discretion is, within the bounds of the Act, absolute. However, over time various considerations have been compiled to ensure that exemptions are only granted where appropriate.5 Accordingly, the following matters will be considered: 1. Whether the exemption is necessary;6 2. Whether there are any non-discriminatory ways of achieving the objects or purposes for which the exemption is sought;7 3. Whether the exemption is in the community interest;8 4. Whether any other persons or bodies other than the applicants support the application;9 5. Whether it is reasonable and appropriate to grant the exemption;10 and 6. The effect of not granting the exemption.11 [7] At this point it is apposite to mention that the granting of an exemption from certain sections of the Act is not a trivial matter. In Downer EDI Mining, Member Paratz stated the following: An exemption from an Act of the State Parliament, to put the [Applicant] in a different position to other citizens, is not a matter of routine. The Applicant is seeking to have part of the laws of the State not apply to it, and that is a significant matter. In appropriate circumstances, where that is warranted and necessary, then the Tribunal may make such an order, but it not a given result. The Tribunal always has to have regard to the possible implication of an order. Whilst a blanket exemption may seem benign on its surface in the context of a well meaning application, the Tribunal will be concerned that an unnecessary or overly broad order may deprive citizens and claimants of rights and actions that they would otherwise have.12 [8] In that application, the Member declined to grant the exemption as the applicant company had not demonstrated that the exemption was needed to achieve the company's aims.13 Further, the Member also considered that the efforts of the applicant company were arguably promoting equal opportunity and would, therefore, be permissible under s 105. This decision should be contrasted with the factually similar matter of United Synergies 5 United Synergies Ltd [2015] QCAT 89; Exemption application re: Boeing Australia Holdings Pty Ltd and Ors [2003] QADT 21, [12]. 6 Exemption Application re: Mt Isa Mines Ltd [2001] QADT 16. 7 City of Brunswick: re. Application for Exemption from provisions of Equal Opportunity Act (1992) EOC 92- 450. 8 Ibid. 9 Minister for Education and Commissioner for Equal Opportunity and Ors (1987) EOC 92-198. 10 Stevens v Fernwood Fitness Centres Pty Ltd (1996) EOC 92-782. 11 Minister for Education and Commissioner for Equal Opportunity and Ors (1987) EOC 92-198. 12 Downer EDI Mining [2013] QCAT 99, [16]. 13 Ibid [15], [22]. -- 4 of 7 -- 5 Ltd.14 In that matter, Senior Member Stilgoe (as her Honour then was) did not consider the application of s 105 of the Act and granted the application for an exemption. Whether the exemption is necessary [9] The applicant submits that the exemption is necessary for the following reasons:  The exemption is necessary to provide certainty for Children by Choice in conducting recruitment of only woman (into such client facing positions) without fear of a complaint stemming from a requirement that would normally be unlawful under the Act.  This would be to facilitate the effective provision of services to women including pregnant women who may be experiencing domestic violence, sexual assault or reproductive coercion during unplanned pregnancy. [10] In Palmpoint Pty Ltd the Anti-Discrimination Tribunal dealt with the approach to be adopted in an application for an exemption under the Act.15 In particular, the QADT dealt with the purpose of s113 of the Act. Member Venables wrote: 18. Effectively, the provisions of section 113 of the Act allow for a preliminary determination upon which the applicant can rely, to ensure that the carrying out of their business is not unlawful. It also allows for the effective monitoring of the matter by the Tribunal, as exemptions under the section are only applicable for a maximum period of five years. At the conclusion of the period for which the exemption is granted, the applicant must reapply for an exemption if they wish to retain the benefit of assured compliance with the Act, insofar as their conduct remains within the parameters of exemption granted. Should circumstances change within that period, this will come to the attention of the Tribunal before any further exemption is granted. 19. In contrast, the provisions of section 104 remain in force indefinitely (until repealed or amended by parliament) and are open to the interpretation of parties concerned in circumstances as and when they arise. The section does not provide a reliable shield against a complaint, as doing acts in accordance with the section, that is, acts “to benefit the members of a group with an attribute” will almost always involve the doing of an act which treats persons without the attribute less favourably. Accordingly, it will almost always run the risk of giving rise to “an arguable case” of unlawful discrimination. 20. In my view, the purpose of section 113 is to allow people the protection and security of a shield against complaints in circumstances where their proposed actions do constitute a prima facie case of unlawful discrimination, but where they are not inherently inconsistent with the objects of the Act. The section allows for a regular review of the exemption or, in the alternative, for such exemption to simply expire. For these reasons, it is desirable in my view to invoke the section in circumstances such as these. 14 United Synergies Ltd [2015] QCAT 89. 15 Exemption application re: Palmpoint Pty Ltd [2006] QADT 12 (7 April 2006). -- 5 of 7 -- 6 [11] The applicant assists women and pregnant women with counselling and financial assistance when they are experiencing times of hardship. The counselling services are both face to face and over the telephone. The applicant submits that many women would not feel comfortable or safe with a male Counsellor. I accept those submissions and find that the exemption is necessary as it provides certainty for the applicant; certainty that it can provide it services targeted at recruiting without fear of successful complaints stemming from the recruitment process. Whether there are non-discriminatory ways of achieving the objects or purposes for which the exemption is sought [12] The applicant submits that it has not been able to identify any non-discriminatory methods to achieve the objectives of the services offered by the applicant. Whether the exemption is in the community interest [13] In my view, the exemption is in the public interest having regard to the fact that one of the applicant's aims is the provision of counselling services to women who have experienced or are experiencing domestic violence, sexual assault or reproductive coercion. Whether any other persons or bodies other than the applicant support the application [14] The material before the Tribunal does not disclose if any person or body supports the application. Equally, the material does not disclose if any person or body opposes the granting of the exemption. Whether it is reasonable and appropriate to grant the exemption [15] It is in my view reasonable and appropriate to grant the exemption having regard to the nature of the services offered by the applicant. [16] The recruitment of women to numerous positions to provide services to women and pregnant women in a variety of circumstances may arguably contravene the Act. Whilst the applicant may well be protected by ss 25, 46(2), 91 and 104, s 206 places the burden of proof in respect of an exemption or defence on the applicant as respondent to a complaint alleging discrimination. [17] The applicant clearly provides an important service for the benefit of women, particularly those who have experienced or are experiencing domestic violence, sexual assault or reproductive coercion. -- 6 of 7 -- 7 The effect of not granting the exemption [18] It is possible to glean from the application that the rejection of the exemption would restrict the applicant's ability to deliver its services. Not granting an exemption has the potential to create, albeit a small one, uncertainty for the applicant over its exposure to complaints. Without the exemption the applicant would not have a "shield" under which it could conduct its counselling services to assist women and pregnant women. Conclusion [19] From the considerations above, I make the following orders. 1. Children by Choice Association Inc. is exempt from the operations of sections 14, 15, 15A, 124, and 127 of the Anti-Discrimination Act 1991 in relation to attribute in s 7(a). 2. The exemption applies only to acts or omissions reasonably necessary to recruit sufficient females into positions, including Counsellors, Manager, Communications Coordinator, Campaign Coordinator, and Education and Training Coordinator. 3. The exemption shall apply to the applicant from the date of the application, 2 November 2018 for a period not exceeding five years. -- 7 of 7 --