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- Unreported Judgment
CISC Pty Ltd t/as The Construction Training Centre  QCAT 301
CISC Pty Ltd t/as The Construction Training Centre (Applicant)
1 September 2017
1 September 2017
On the papers
HUMAN RIGHTS – DISCRIMINATION – DIRECT DISCRIMINATION – where there is an application for exemption from the operation of the direct discrimination provisions in the area of superannuation – where the applicant wishes to pay an additional 1% in superannuation contributions for its female employees – whether already exempt by the provisions of the Anti-Discrimination Act 1991 (Qld)
Anti-Discrimination Act 1991 (Qld), s 10, s 55,
Sex Discrimination Act 1984 (Cth), s 7D
Jacomb v Australian Municipal Administrative Administrative Clerical & Services Union  FCA 1250
Walker v Cormack & Anor  FMCA 9
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).
REASONS FOR DECISION
- The Applicant, CISC Pty Ltd t/as The Construction Training Centre (CTC), wishes to pay its female employees (but not its male employees) an additional 1% over the mandated employer contributions.
- The proposal appears to be direct discrimination under s 10 of the Anti-Discrimination Act 1991 (Qld) (the Act) because it would be treating male employees less favourably than female employees where their circumstances are (apart from their gender) the same or not materially different.
- Such discrimination is not a contravention of the Act unless it comes within one of the “areas” protected by the Act. Which area applies to this proposal is important for the resolution of this application. CTC suggest that it comes within the work area. However, it appears that it may come within the superannuation area.
Which area (if any) applies to the proposal?
- The superannuation area includes this provision:-
55 Discrimination in superannuation area (work)
A person must not discriminate against another person who works for the person—
- (a)in any variation of the terms of the work that relate to superannuation; or
- (b)in denying or limiting the other person’s access to any benefit to a worker that relates to superannuation; or
- (c)by treating the other person unfavourably in any way in connection with superannuation.
- It seems to me that an employer who proposes to increase superannuation contributions for female employees above that for male employees, is proposing to treat the male employees unfavourably in connection with superannuation.
- By s 13(2) of the Act, if the superannuation area applies, then the work area cannot apply. Hence the only area in the Act which could make this particular proposal unlawful is the superannuation area.
The Tribunal’s role
- The Tribunal is able to grant an exemption from the relevant provisions of the Act under s 113 of the Act.
- The Act requires an application for exemption to be given to the Anti-Discrimination Commissioner, who can make submissions and suggest (amongst other things) whether there should be public consultation.
- Here the Commissioner did not suggest that any particular consultation should take place, but did consider the purpose of the proposed exemption to be “certainly meritorious”. The Commissioner did suggest however, that an exemption was not required because it was likely that the general exemptions in s 104 (welfare measures) or s 105 (equal opportunity measures) of the Act applied to the proposal. To decide whether these sections applied to the proposal would require some discussion of their correct interpretation in the light of the stated aims and purposes of the Act.
The Commonwealth exemption in the superannuation area
- To my mind, since it appears that the proposal comes within the superannuation area, there is another exemption in the Act which more obviously applies. This is s 59 of the Act which renders lawful those things which are permitted under the Commonwealth Sex Discrimination Act 1984 (Cth) (the SDA) but which would otherwise be a contravention in the superannuation area. There is a similar exemption in the insurance area.
- S 59 is as follows:
59 Commonwealth exemption (sex or relationship status)
It is not unlawful to discriminate on the basis of sex or relationship status with respect to a matter that is otherwise prohibited under subdivision 1 if the discrimination is permitted under the Sex Discrimination Act 1984 (Cwlth).
- The reference to subdivision 1 is to the subdivision which contains s 55 which would otherwise render the proposal unlawful in the superannuation area.
- It is necessary therefore to look at the SDA. There is a general exemption from sex discrimination in s 7D of the SDA. This reads as follows:
7D Special measures intended to achieve equality
- (1)A person may take special measures for the purpose of achieving substantive equality between:
- (a)men and women; or
(aa) people who have different sexual orientations; or
(ab) people who have different gender identities; or
(ac) people who are of intersex status and people who are not; or
- (b)people who have different marital or relationship statuses; or
- (c)women who are pregnant and people who are not pregnant; or
- (d)women who are potentially pregnant and people who are not potentially pregnant; or
- (e)women who are breastfeeding and people who are not breastfeeding; or
- (f)people with family responsibilities and people without family responsibilities.
- (2)A person does not discriminate against another person under section 5, 5A, 5B, 5C, 6, 7, 7AA or 7A by taking special measures authorised by subsection (1).
- (3)A measure is to be treated as being taken for a purpose referred to in subsection (1) if it is taken:
- (a)solely for that purpose; or
- (b)for that purpose as well as other purposes, whether or not that purpose is the dominant or substantial one.
- (4)This section does not authorise the taking, or further taking, of special measures for a purpose referred to in subsection (1) that is achieved.
- The exclusion of “special measures” from discrimination is in accordance with Article 4 of the Convention on the Elimination of all Forms of Discrimination Against Women which is reproduced in the Schedule to the SDA. Article 4 says that special measures aimed at accelerating de facto equality between men and women shall not be considered to be discrimination. The Article emphasises however that the measures should be temporary and should be removed after their purpose has been achieved. This requirement is enacted in s 7D(4) of the SDA.
- S 3 of the SDA says that one of the purposes of the SDA is to give effect to certain provisions of the Convention. It is noteworthy that the preamble to Queensland’s Anti-Discrimination Act 1991 (Qld) also refers to the Convention as being one of the international human rights instruments which have “recognised the need to protect and preserve the principles of dignity and equality for everyone”.
Is the proposal exempted by s 7D?
- As was pointed out by the Federal Court in Jacomb v Australian Municipal Administrative Clerical & Services Union  FCA 1250, s 7D requires proof that the subjective intention of the person relying on the section is to achieve substantial equality between men and women. But it was accepted in that case that there is also an element of objectivity in the test – so that it would be reasonable to regard the otherwise discriminatory act as capable of achieving that goal.
- This must be right because otherwise entirely genuine but quite misconceived attempts to achieve equality which would otherwise be discriminatory would come within the section. A purposive construction requires that the objectively reasonable test must also be satisfied.
- The same approach was taken in Walker v Cormack & Anor  FMCA 9, a decision upheld on appeal.
- CTC explains that it wishes to implement the proposal in order to try to redress, at least partly, an imbalance in the superannuation benefits generally accumulated by women by the time of retirement. The evidence is submitted by CTC’s Chief Executive Officer and Company Secretary. This evidence shows that the decision to bring the application was taken at board level and discussed and agreed at team meetings.
- The evidence also demonstrates that the imbalance in superannuation benefits exists. A table in the paper “Women’s Economic Security in Retirement” from the Workplace Gender Equality Agency (a government agency) 2015 showed that in the year 2009-10, the average balance in superannuation benefit at retirement for women was $112,600, whereas for men it was $198,000. The figures for 2011-12 were $105,000 and $197,000 respectively. Whilst no more up to date figures were provided, there is nothing to indicate that the gap has been substantially closed since then and on the balance of probabilities the considerable imbalance remains.
- CTC provided a number of additional papers in its evidence. They were Workplace Gender Equality Agency “Gender Pay Gap Statistics” August 2016, ANZ Women’s Report – “Barriers to Achieving Financial Gender Equity” 2015, ANZ “Submission to the Senate Inquiry into Economic Security for Women in Retirement” February 2016 and Rice Warner Actuaries “Valuing Females and Rewarding them in Retirement” November 2012.
- These papers show that women spend about half the number of years in paid employment as men and their lifetime earnings are about half that of men. The papers seek to explain the social and employment-related reasons why this is so, and why women’s superannuation benefits at the time of retirement are therefore much lower than men. In this application, it is unnecessary for me to make any findings as to the reason for these imbalances. Multiple causes were offered, and many of these have multiple sub-causes. They ranged from generalised difference in pay between men and women, women being more likely to have gaps in their employment, interruption in their careers, and difficulty in returning to work particularly when older, to women being more likely to be in jobs which do not pay superannuation, and more likely to be in part-time work.
- It was said that the effect of the disparity in superannuation benefits is compounded because women have a greater life expectancy than men and therefore they have a greater need for those superannuation benefits after retirement.
- There is actuarial evidence showing that as at November 2012, if an employer were to contribute an extra 1.5% superannuation contribution for its female employees, this would equalise the likely income stream for the employees at the time of their retirement, based on their average life expectancy.
- I am satisfied therefore that the subjective intention of CTC’s officers in making the proposal is to achieve substantial equality between men and women. I also accept that the increase of 1% in superannuation contributions for women in its employment will further that aim.
- I am satisfied therefore that the proposal comes within s 7D. That means that the proposal would not be discrimination under the SDA, and in turn the Commonwealth Exemption in the Act applies so that the proposal is also lawful under Queensland law.
- In passing it can be noted that since July 2015, ANZ bank has paid an additional $500 pa in superannuation contributions for its female staff. In its Submission to the Senate Inquiry into Economic Security for Women in Retirement, ANZ said that this was “deemed to be a ‘special measure’ and not unlawful” in jurisdictions other than New South Wales. The submission says that in New South Wales the special measure provisions are not repeated into local anti-discrimination law. For that reason, ANZ obtained an exemption for the proposal from the Anti-Discrimination Board of NSW (this was granted for 10 years to 10 June 2025).
- For its Queensland operations, ANZ did not apply to the Tribunal for exemption for its proposal. It appears likely that this was because it was advised that the Commonwealth Exemption applied to its proposals in Queensland by s 59 of the Act and therefore no exemption was necessary, as I have found in this application which is a similar proposal.
- I conclude that since the proposal is already exempt from the provisions of the Act by the operation of s 59 of the Act and s 7D of the SDA, there is no need for an exemption to be granted under s 113.
- In the circumstances, the correct approach is for me to make a declaration to the above effect under s 60 of the QCAT Act and to dismiss the application for exemption.
 The mandated employer contributions are the superannuation guarantee contributions (which are a statutory minimum) and any superannuation contributions required by an award.
 Provided in s 73.
 Walker v Cormack  FCA 861.
 Submitted by statutory declaration made on 6 February 2017.
 These figures were provided by the Association of Superannuation Funds of Australia.
 In particular, pages 2 and 3 of Workplace Gender Equality Agency “Economic Security for Women in Retirement” 2015.
 Page 17 Rice Warner Actuaries “Valuing Females and Rewarding then in Retirement”.
- Published Case Name:
CISC Pty Ltd t/as The Construction Training Centre
- Shortened Case Name:
CISC Pty Ltd t/as The Construction Training Centre
 QCAT 301
01 Sep 2017