Downer EDI Rail Pty Ltd, Re [2026] QIRC 228

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: Re: Downer EDI Rail Pty Ltd [2026] QIRC 228 PARTY: Downer EDI Rail Pty Ltd (Applicant) CASE NO: AD/2026/20 PROCEEDING: Application for exemption DELIVERED ON: 24 July 2026 MEMBER: HEARD AT: Power IC On the papers ORDER: 1. Pursuant to s 113 of the Anti- Discrimination Act 1991 (Qld), the Applicant is exempt from the operations of ss 14, 15, 15A, 124 and 127 in relation to the attribute in s 7(a) of the Act. 2. The exemption applies only in respect of actions or omissions which are reasonably necessary in relation to the advertising, recruitment and employment practices for the Women on Track program. 3. The exemption shall apply for a period of 5 years from the date of this decision. CATCHWORDS: EQUAL OPPORTUNITY AND DISCRIMINATION – EXEMPTION – sex discrimination – application to grant exemption under s 113 of the Anti-Discrimination Act 1991 (Qld) – where the Applicant seeks an exemption for the purposes of recruiting women for the Women on Track Program to increase female participation in the Queensland Train Manufacturing Program – whether exemption -- 1 of 10 -- 2 is necessary – whether exemption is reasonable and appropriate – where exemption would provide certainty – exemption granted HUMAN RIGHTS – whether Queensland Industrial Relations Commission acts in an administrative capacity, within the meaning of the Human Rights Act 2019 (Qld) – whether granting the exemption affects a human right within the meaning of the Human Rights Act 2019 (Qld) – whether decision to grant exemption is compatible with human rights within the meaning of the Human Rights Act 2019 (Qld) – application granted LEGISLATION: Anti-Discrimination Act 1991 (Qld) s 7, s 14, s 15, s 15A, s 104, s 105, s 113, s 124, s 127 Human Rights Act 2019 (Qld) s 13, s 15, s 58, s 104, s 105 CASES: City of Brunswick: re. Application for Exemption from provisions of Equal Opportunity Act (1992) EOC 92-450 Exemption application re: Boeing Australia Holdings Pty Ltd and Ors [2003] QADT 21 Exemption Application re: Mt Isa Mines Ltd [2001] QADT 16 Minister for Education and Commissioner for Equal Opportunity and Ors (1987) EOC 92-198 Re: Protech Personnel Pty Ltd [2019] QIRC 175 Re: Protech Personnel Pty Ltd [2022] QIRC 029 Stevens v Fernwood Fitness Centres Pty Ltd (1996) EOC 92-782 United Synergies Ltd [2015] QCAT 89 -- 2 of 10 -- 3 Reasons for Decision Introduction [1] Downer EDI Rail Pty Ltd ('the Applicant') filed an application seeking an exemption from the operation of specified provisions of the Anti-Discrimination Act 1991 (Qld) ('the AD Act') pursuant to s 113 of the AD Act. [2] The Applicant states that it is delivering the Queensland Train Manufacturing Program ('the QTMP Project') which involves the design, manufacture and commissioning of a new fleet of passenger trains. [3] The Applicant submits that as part of workforce planning for the QTMP Project, and in connection with contractual requirements from the Queensland State Government, it has adopted an objective of achieving at least 20 per cent female participation across the QTMP Project workforce. [4] Further, the Applicant submits that current workforce data indicates that women comprise approximately 16% of the Rail and Transit Systems overall, with lower representation in manufacturing, maintenance and trades-based roles. [5] In relation to existing recruitment approaches, the Applicant states that these have not delivered the level of female participation required to meet the objective without targeted intervention. The Women on Track program is one such intervention, described by the Applicant in the following terms: Women on Track is a targeted 12-month traineeship program open to women, designed to increase female participation in rail manufacturing, maintenance, and related trades-based roles. Participants undertake a Certificate II in Engineering Production Technology and may apply for an apprenticeship upon completion. The program provides a structured pathway into roles in which women are significantly underrepresented, while also supporting workforce capability requirements under the QTMP Project. [6] Following directions issued on 20 April 2026, the Queensland Human Rights Commission ('the QHRC') filed submissions in relation to the exemption application. Statutory framework [7] The application seeks orders pursuant to s 113(1) of the AD Act, exempting the Applicant from the operation of ss 14, 15, 15A, 124 and 127 of the AD Act, in relation to the attribute in s 7(a) of the AD Act 'sex' for the purposes of limiting recruitment and participation in the Women on Track program to women only. [8] Section 113 provides that an exemption may be granted from the operation of a specified provision of the AD Act. -- 3 of 10 -- 4 [9] Section 14 states the following: 14 Discrimination in the pre-work area A person must not discriminate— (a) in the arrangements made for deciding who should be offered work; or (b) in deciding who should be offered work; or (c) in the terms of work that is offered, including, for example, a term about when the work will end because of a person's age; or (d) in failing to offer work; or (e) by denying a person seeking work access to a guidance program, an apprenticeship training program or other occupational training or retraining program; or (f) in developing the scope or range of such a program. [10] Section 15 states the following: 15 Discrimination in work area (1) A person must not discriminate— (a) in any variation of the terms of work; or (b) in denying or limiting access to opportunities for promotion, transfer, training or other benefit to a worker; or (c) in dismissing a worker; or (d) by denying access to a guidance program, an apprenticeship training program or other occupational training or retraining program; or (e) in developing the scope or range of such a program; or (f) by treating a worker unfavourably in any way in connection with work. … [11] Section 15A states the following: 15A Discrimination by principals (1) This section applies if a person (the worker) does work, or is to do work, for another person (the principal) under or because of— (a) a contract between the principal and a third person; or (b) another arrangement, or a series of arrangements, involving the principal and a third person, whether or not the arrangement or series of arrangements also involves other persons. (2) The principal must not discriminate against the worker— (a) in the terms in which the principal allows the worker to work; or (b) by not allowing the worker to work or continue to work; or (c) by denying or limiting access by the worker to any benefits connected with the work; or (d) by treating the worker unfavourably in any way in connection with the work. (3) This section does not limit section 15 . -- 4 of 10 -- 5 [12] Section 104 states the following: 104 Welfare measures A person may do an act to benefit the members of a group of people with an attribute for whose welfare the act was designed if the purpose of the act is not inconsistent with this Act. Example 1— It is not unlawful for a bus operator to give travel concessions to pensioners or to give priority in seating to people who are pregnant or frail. Example 2— It is not unlawful to restrict special accommodation to women who have been victims of domestic violence or to frail, older people. Example 3— It is not unlawful to establish a high security patrolled car park exclusively for women that would reduce the likelihood of physical attacks. [13] Sections 105 states the following: 105 Equal opportunity measures (1) A person may do an act to promote equal opportunity for a group of people with an attribute if the purpose of the act is not inconsistent with this Act. (2) Subsection (1) applies only until the purpose of equal opportunity has been achieved. [14] Section 124 states the following: 124 Unnecessary information (1) A person must not ask another person, either orally or in writing, to supply information on which unlawful discrimination might be based. (2) Subsection (1) does not apply to a request that is necessary to comply with, or is specifically authorised by— (a) an existing provision of another Act; or (b) an order of a court; or (c) an existing provision of an order or award of a court or tribunal having power to fix minimum wages and other terms of employment; or (d) an existing provision of an industrial agreement under the repealed Industrial Relations Act 1999 ; or (e) an order of QCAT or the industrial relations commission. (3) It is a defence to a proceeding for a contravention of subsection (1) if the respondent proves, on the balance of probabilities, that the information was reasonably required for a purpose that did not involve discrimination. … -- 5 of 10 -- 6 [15] Section 127 states the following: 127 Discriminatory advertisements (1) A person must not publish or display an advertisement, or authorise its publication or display, if the advertisement indicates that a person intends to act in a way that contravenes the Act. Maximum penalty— (a) in the case of an individual—35 penalty units; or (b) in the case of a corporation—170 penalty units. (1A) To remove any doubt, subsection (1) does not apply to an advertisement so far as it advertises for a worker who is under 21 years of age, whether by specifying a particular age, a particular age group or otherwise. Example— An employer may advertise for an 18 year old sales assistant or for a 15 to 17 year old sales assistant. (2) It is a defence to a complaint made under the Act for a contravention of subsection (1) if the respondent proves, on the balance of probabilities, that the respondent took reasonable precautions to prevent the publication or display happening. (3) It is an excuse to an offence against subsection (1) if the defendant took reasonable precautions to prevent the publication or display happening Consideration [16] The question for determination is whether the application for exemption should be granted pursuant to s 113(1) of the AD Act. [17] In Re: Protech Personnel Pty Ltd,1 Vice President O'Connor outlined factors relevant to the considerations of s 113 of the AD Act: [9] Section 113 of the ADA confers a broad and unfettered discretion upon the Tribunal to grant an exemption from the operation of a specific provision of the Act. However, over time various considerations have been identified to assist the Tribunal in exercising its discretion to ensure that exemptions are only granted in appropriate circumstances. Accordingly, the following matters may be considered: 1. Whether the exemption is necessary; 2. Whether there are any non-discriminatory ways of achieving the objects or purposes for which the exemption is sought; 3. Whether the exemption is in the community interest; 4. Whether any other persons or bodies other than the applicant support the application; 5. Whether it is reasonable and appropriate to grant the exemption; and 6. The effect of not granting the exemption.2 1 Re: Protech Personnel Pty Ltd [2019] QIRC 175, [9]. 2 Ibid, citing United Synergies Ltd [2015] QCAT 89; Exemption application re: Boeing Australia Holdings Pty Ltd and Ors [2003] QADT 21; Exemption Application re: Mt Isa Mines Ltd [2001] QADT 16; City of Brunswick: -- 6 of 10 -- 7 Is the exemption necessary? [18] The conduct in which the Applicant proposes to engage is discriminatory and in the absence of an exemption the Applicant would be unable to lawfully limit recruitment and participation in the Women on Track program to only women. Accordingly, the exemption is necessary to ensure the proposed conduct is lawful. Are there any non-discriminatory ways of achieving the objects or purposes for which the exemption is sought? [19] The Application outlines the purpose of the program in the following terms: The purpose of the program is to create a targeted pathway for women into rail manufacturing, maintenance and trades-based roles through a 12 month traineeship program leading to a Certificate II in Engineering Production Technology and the opportunity to apply for an apprenticeship upon completion. [20] The Applicant submits that general inclusive recruitment practices such as gender-neutral advertising, inclusive language and broader outreach have not been sufficient to achieve the object and purpose of Women on Track. [21] The lack of success in using other methods to achieve the purpose indicates that there are no non-discriminatory ways of achieving the purpose for which the exemption has been sought. Is the exemption in the community interest? [22] The community interest in allowing a similar exemption was considered in Re: Protech Personnel Pty Ltd, where Vice President O'Connor observed:3 [14] Clearly having such low levels of female representation in the construction workforce is unsatisfactory and inconsistent with current community expectations for gender diversity and inclusiveness in workplaces. It is therefore in the community interest for programs to exist to help facilitate and encourage women to apply for jobs in industries which have been and continue to be traditionally male dominated. [23] In circumstances where the current workforce data indicates that women comprise approximately 16% of the Rail and Transit systems workforce overall, it is in the community interest to grant an exemption to address the underrepresentation of women in this industry. re. Application for Exemption from provisions of Equal Opportunity Act (1992) EOC 92-450; 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. 3 Re: Protech Personnel Pty Ltd [2019] QIRC 175, [14]. -- 7 of 10 -- 8 Are there any other persons or bodies other than the Applicant that support the application? [24] In Annexure A to the Application, the Applicant referred to manufacturing industry data provided by the Workplace Gender Equality Agency ('WGEA') and the Queensland Government's Women in Manufacturing Strategy as both supporting the conclusion that targeted action is required to improve participation. [25] The Queensland Human Rights Commissioner provided a submission indicating that they did not oppose the principle of targeting recruitment to groups such as women who are significantly under-represented in particular industries and accordingly has no objection to the exemption sought. Whether it is reasonable and appropriate to grant the exemption [26] The Applicant submits that the exemption applies only to the advertising, recruitment and participation arrangements for the Women on Track Program, and does not apply to the broader recruitment or employment practices of the QTMP Project, Rail and Transit Systems or the employer more broadly. [27] Further, I note the Applicant's submission that the exemption does not remove or diminish employment or apprenticeship opportunities otherwise available to men, making it a limited and practical measure directed to achieving substantive equality in a historically male dominated part of the workforce. [28] On the basis of the practical purpose of the exemption, and noting the lack of success in utilising other methods to encourage women to apply to work in an area of entrenched under-representation, I consider it reasonable and appropriate to grant the exemption. The effect of not granting the exemption. [29] If the exemption were not granted, the Applicant may find itself in the position of unlawfully contravening the AD Act by limiting the recruitment and participation to only women. [30] The statutory exemptions for welfare and equal opportunity measures provided for in ss 104 and 105 of the AD Act may apply, however, an exemption would provide certainty to the Applicant that it may limit recruitment and participation to women only without contravening the AD Act. Human Rights Act 2019 (Qld) (' the HR Act') [31] The discretion to grant an exemption must be exercised compatibly with human rights as defined in s 8 of the HR Act. -- 8 of 10 -- 9 [32] In the matter of Re: Protech Personnel Pty Ltd, the Commission considered the relevant HR Act provisions:4 [21] In Re: Ipswich City Council, the Council sought an exemption, under s 113(1) of the Act, from the operation of certain provisions of the Act for the purposes of being able to advertise to employ only female waste truck drivers for a training program. In that case, in respect of the application of the HRA to the exercise of discretion by the Commission in determining whether or not to grant the exemption sought, I determined that: • in exercising such discretion, the Commission was acting in an administrative capacity, such that the Commission must observe s 58 of the HRA; and • as a consequence, the Commission must: – not act to make a decision in a way that is not compatible with human rights; – in making a decision, not fail to give proper consideration to a human right relevant to the decision; – in giving proper consideration to a human right in making a decision, identify the human rights that may be affected by the decision; and – consider whether the decision would be compatible with human rights. [citations omitted] [33] In relation to the requirements of the HR Act, the Applicant submitted the following: The purpose of the limitation (that is, restricting program participants to women only) is consistent with section 13(2)(b) of the HR Act, as increasing women's participation in areas of persistent underrepresentation promotes substantive equality and is consistent with a free and democratic society based on human dignity, equality and freedom. The limitation is connected to the purpose of the program as required by section 13(2)(c) of the HR Act, as confining participation in the Women on Track program to women is necessary for the program to operate as an effective corrective measure to address structural gender inequality in a historically male-dominated industry and to increase women's participation in the QTMP Project workforce. [34] The exemption sought will allow the Applicant to ask questions about a person's sex and will limit participation in the Women on Track program to women only, thereby engaging the following human rights: • The right to not have one's privacy unlawfully or arbitrarily interfered with pursuant to s 25(a) of the HR Act; • The right to enjoy one's privacy without discrimination pursuant to s 15(2) and s 25(a) of the HR Act; 4 Re: Protech Personnel Pty Ltd [2022] QIRC 029, [21]. -- 9 of 10 -- 10 • the right to equality before the law and equal and effective protection against discrimination in s 15(3)-(4) of the HR Act. [35] As submitted by the QHRC Commissioner, an arbitrary interference is one which is concerned with capriciousness, unpredictability, injustice and unreasonableness, in the sense of not being proportionate to a legitimate aim. On the basis that the interference with privacy is not unreasonable or disproportionate to the legitimate aim of supporting female participation in roles where women are under-represented, and is not unlawful, I consider the right to privacy not to be limited by the proposed exemption. [36] The Applicant has not submitted that the exemption is compatible with equality rights as a special measure pursuant to s 15(5), rather it submits that the exemption is compatible with the right to equality under s 13. [37] Section 13 provides that human rights may be limited only to reasonable limits that can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom. [38] For the reasons outlined above, I am satisfied that the limitation on the right to equality before the law and equal and effective protection against discrimination is legitimate, of sufficient importance, and proportionate. The rights outlined will be limited only to limits that are reasonable and demonstrably justifiable. Orders [39] I make the following orders: 1. Pursuant to s 113 of the Anti-Discrimination Act 1991 (Qld), the Applicant is exempt from the operations of ss 14, 15, 15A, 124 and 127 in relation to the attribute in s 7(a) of the Act. 2. The exemption applies only in respect of actions or omissions which are reasonably necessary in relation to the advertising, recruitment and employment practices for the Women on Track program. 3. The exemption shall apply for a period of 5 years from the date of this decision. -- 10 of 10 --