Gold Coast 2018 Commonwealth Games Corporation
[2017] QIRC 38
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- Unreported Judgment
- Gold Coast 2018 Commonwealth Games Corporation[2017] QIRC 38
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Gold Coast 2018 Commonwealth Games Corporation[2017] QIRC 38
Gold Coast 2018 Commonwealth Games Corporation[2017] QIRC 38
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Gold Coast 2018 Commonwealth Games Corporation [2017] QIRC 038 |
PARTIES: | Gold Coast 2018 Commonwealth Games Corporation (Applicant) |
CASE NO: | AD/2017/1 |
PROCEEDING: | Application for exemption from certain provisions |
DELIVERED ON: | 5 May 2017 |
HEARING: | On the papers |
MEMBER: | Deputy President O'Connor |
ORDERS: CATCHWORDS: |
ANTI-DISCRIMINATION – EXEMPTION – DISCRIMINATION ON THE BASIS OF RACE – where the applicant has developed a Reconciliation Action Plan – where the plan seeks to provide more opportunities for Indigenous and Torres Strait Islander Australians to volunteer – exemption granted ANTI-DISCRIMINATION – EXEMPTION – DISCRIMINATION ON THE BASIS OF RACE – where proposed discrimination is an equal opportunity measure – whether exemption is required – where exemption would provide certainty – exemption granted |
CASES: | Anti-Discrimination Act 1991 s 7(g), s 14, s 15, 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 [12] Exemption Application re: Mt Isa Mines Ltd [2001] QADT 16 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 |
Reasons for Decision
- [1]On 23 March 2017 the applicant, Gold Coast 2018 Commonwealth Games Corporation, filed an application for an exemption from the operation of specified provisions of the Anti-Discrimination Act 1991 ("the ADA"). Section 113 of the ADA enables this Commission to grant an applicant an exemption from complying with sections of the ADA. The applicant is one of the bodies responsible for the planning, organising and delivering of the Gold Coast 2018 Commonwealth Games ("GC2018").
- [2]The exemption sought relates to ss 14, 15, and 127 of the ADA for a period which commenced on 6 February 2017 and will expire and 30 June 2018. 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 127 "Discriminatory advertising" is a penalty provision which prohibits the publication and display of advertisements which in any way contravene the ADA; the section also provides a clarification and defences.
- [3]Applications of this nature come to the Industrial Relations Commission also as a function of s 113 of the ADA. That section refers to the "tribunal". Tribunal is defined in the Schedule to the ADA as being, if the matter is work-related, the Industrial Relations Commission. For clarity, for the balance of these reasons the Industrial Relations Commission will be referred to as the Tribunal.
- [4]Section 113(2)(a) of the ADA requires that an application for an exemption must be sent to the Anti-Discrimination Commission Queensland ("the ADCQ"). This process allows for the ADCQ to conduct searches against its records of whether any complaints have been made against the applicant. Moreover, it allows the ADCQ Commissioner to inform this Tribunal of whether it has any objection to the application for an exemption.
- [5]By a letter dated 4 April 2017, the ADCQ Commissioner advised this Tribunal that there were no current complaints against the applicant and that the ADCQ had no objection to the application.
- [6]The ADCQ Commissioner's letter drew the attention of this Tribunal to two additional sections which were of relevance to this application, specifically ss 105 and 124. Section 105 is in the following terms:
"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."
- [7]Section 124, insofar as it is relevant, states:
"124 Unnecessary information
- (1)A person must not ask another person, either orally or in wiring, to supply information on which unlawful discrimination might be based.
…"
The relevance of ss 105 of 124 will be discussed further below.
- [8]The applicant has developed and is implementing a Reconciliation Action Plan ("RAP") in an effort to achieve three objectives:
- (i)Recognise Aboriginal and Torres Strait Islander cultures and respect the Traditional Custodians of the cities of Gold Coast, Brisbane, Cairns and Townsville where GC2018 events will be held.
- (ii)Celebrate the extensive Aboriginal and Torres Strait Islander heritage and cultures of the Gold Coast, Queensland and Australia.
- (iii)Leverage economic and social benefits for Aboriginal and Torres Strait Islander peoples.
- [9]The applicant states that through the approach of its RAP Aboriginal and Torres Strait Islander Australians will be provided with meaningful opportunities to participate in the GC2018, extending beyond the traditional inclusion of culture within the Opening Ceremonies, and contributing towards a positive and lasting legacy for Aboriginal and Torres Strait Island Australian.
- [10]The applicant informs this Tribunal that data collected by the Australian Bureau of Statistics during the 2011 census shows that Aboriginal and Torres Strait Island Australians had lower rates of participation in volunteer programs as compared with people who did not identify as Aboriginal or Torres Strait Islander. One of the aims of the GC2018 RAP is to redress that discrepancy. In recruiting for volunteers for the GC2018 the applicant has implemented the following measures:
- (i)Stating in the application form that Aboriginal and Torres Strait Islander peoples are encouraged to apply for volunteering; and
- (ii)Including a question on the application form asking whether the applicant identifies as Aboriginal and/or Torres Strait Islander.
- [11]The information collected from the volunteer application process allows the applicant to proactively and directly increase Aboriginal and Torres Strait Islander volunteering. It is for that purpose that the applicant seeks the exemption from ss 14, 15, 127.
- [12]As mentioned above, the ADCQ Commissioner raised the relevance of the section 124 of the ADA and it would seem to me that it is applicable to the proposed activities of the applicant. The applicant has not sought exemption from s 124 of the ADA. Accordingly, this Tribunal amends to the application to include s 124 as a section from which the applicant seeks to be exempt. Failure to exempt the applicant from s 124 would undermine the effect of the exemption as initially sought. The Tribunal makes the amendment under s 174B of the ADA:
"174B Functions of the industrial relations commission
The industrial relations commission has the following functions—
…
- (b)to grant exemptions from this Act in relation to work-related matters;
…
- (e)to take any other action incidental or conducive to the discharge of a function mentioned in paragraphs (a) to (d)."
Exemption considerations
- [13]The power to exempt an applicant from the operation of a particular part of the ADA is discretionary. On the face of the act the discretion is, within the bounds of the ADA, absolute. However, over time various considerations have been compiled to ensure that exemptions are only granted where appropriate.[1] Accordingly, the following matters will be considered:
- (i)Whether the exemption is necessary;[2]
- (ii)Whether there are any non-discriminatory ways of achieving the objects or purposes for which the exemption is sought;[3]
- (iii)Whether the exemption is in the community interest;[4]
- (iv)
- (v)
- (vi)
- [14]At this point is apposite to mention that the granting of an exemption from certain sections of the ADA 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."[8]
- [15]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.[9] 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 factually similar matter of United Synergies Ltd.[10] In that matter, Senior Member Stilgoe did not consider the application of s 105 of the ADA and granted the application for an exemption.
Whether the exemption is necessary
- [16]In his correspondence to this Tribunal the ADCQ Commissioner stated that exemption under s 105 might apply. I agree. As a consequence it may not be strictly necessary that the applicant have the exemption sought in order to protect itself while promoting equal opportunity measures for Aboriginal and Torres Strait Islander Australians. However, the ADCQ Commissioner did flag that an exemption of this nature would "provide certainty for the applicant in undertaking its proposed targeted recruitment and to act as a shield should a complaint be made about the subject matter." Given the relatively short-lived nature of the GC2018 and the logistical task of organising such an event, I find that the exemption is necessary as it provides certainty for the applicant; certainty that it can conduct targeted recruiting without fear of successful complaints stemming from the volunteering initiative.
Whether there are non-discriminatory ways of achieving the objects or purposes for which the exemption is sought
- [17]The applicant submits that it has not been able to identify any non-discriminatory methods to achieve its RAP objectives insofar as volunteering is concerned. The greater provision of volunteering positions to a discrete race-based portion of the population is not something which can be done without, at this point in time, affirmative action.
Whether the exemption is in the community interest
- [18]Given that the applicant's RAP aims to increase the involvement of Aboriginal and Torres Strait Islander Australians in GC2018 it is clearly within the interest of that Community. There is also a clear community interest in the advancement, through affirmative action, of disadvantaged persons and the equalisation of opportunity. The applicant's volunteer initiative will also go some way to helping Aboriginal and Torres Strait Islanders to "share the dream" of the 2018 Commonwealth Games. This exemption is, in my view, in the community interest. Indeed, the words underpinning the Commonwealth Games Foundation, "Humanity – Equality – Destiny" seem to go to the very core of this application and, specifically, to the heart of the applicant's volunteering initiative.
- [19]From a broader perspective, the staging of a large scale event such as GC2018 will provide a significant economic benefit to the Gold Coast. The "Friendly Games" will showcase elite athletes in a multi-sport event whilst also providing the host nation and member nations with an opportunity for enrichment through interactions with different races, faiths, and people of the Commonwealth. It would follow then that an exemption such as the one sought in this application, as amended, would assist the applicant in preparing for the Commonwealth Games and that such assistance would be, in my view, in the community interest.
Whether any other persons or bodies other than the applicant support the application
- [20]In 2015 the applicant established the Yugambeh Elders Advisory Group ("the YEAG") to guide the applicant on the development and delivery of culturally related activities for GC2018. The YEAG is comprised of ten respected Aboriginal and Torres Strait Islander community Elders and Yugambeh Traditional Custodians.
- [21]An Indigenous Working Group ("the IWG") was also established in 2015, it was set up to support the development of the applicant's RAP initiatives. The IWG is constituted by eleven representatives from key Aboriginal and Torres Strait Islander service providers in the region.
- [22]Both the YEAG and the IWG support the applicant's RAP volunteering strategy. Further, attached to the exemption application is a letter of support from Reconciliation Australia's Chief Executive Officer, Justin Mohamed. In his letter, Mr Mohamed states that the applicant's "commitment to increasing Aboriginal and Torres Strait Islander volunteer representation at the Commonwealth Games 2018 is a commitment that Reconciliation Australia supports wholeheartedly."
The effect of not granting the exemption
- [23]The applicant has stated that the rejection of the exemption would restrict its ability to achieve its RAP goals. No other information was provided. As the proposed volunteering scheme would probably be covered by s 105 of the ADA I find it difficult to see how the rejection would restrict the applicant's ability to achieve its RAP goals. However, given what has been said above, not granting an exemption might create a degree, albeit a small one, of uncertainty for the applicant over its exposure to complaints. Without the exemption the applicant would not have a "shield" under which it could conduct the Aboriginal and Torres Strait Islander volunteer program.
Whether it is reasonable and appropriate to grant the exemption
- [24]The provision of a certainty for the applicant whilst it seeks to create more volunteering opportunities for Aboriginal and Torres Strait Island Australians is reasonable and appropriate. Moreover, providing protection for the applicant in working towards its RAP goals is also reasonable and appropriate.
Conclusion
- [25]From the considerations above, I make the following orders:
- (i)The Gold Coast 2018 Commonwealth Games Corporation is exempt from the operations of sections 14, 15, 124, and 127 of the Anti-Discrimination Act 1991 in relation to attribute in s 7(g).
- (ii)The exemption shall apply to the applicant from the date of the application, 23 March 2017, for a period ending at midnight on 30 June 2018.
- (iii)The exemption applies only in respect of actions or omissions which are reasonably necessary for the applicant to advertise for, recruit for, select, and employ, volunteers for the Gold Coast 2018 Commonwealth Games.
Footnotes
[1] United Synergies Ltd [2015] QCAT 89; Exemption application re: Boeing Australia Holdings Pty Ltd and Ors [2003] QADT [12].
[2] Exemption Application re: Mt Isa Mines Ltd [2001] QADT 16.
[3] City of Brunswick: re. Application for Exemption from provisions of Equal Opportunity Act (1992) EOC 92-450.
[4] Ibid.
[5] Minister for Education and Commissioner for Equal Opportunity and Ors (1987) EOC 92-198.
[6] Stevens v Fernwood Fitness Centres Pty Ltd (1996) EOC 92-782.
[7] Minister for Education and Commissioner for Equal Opportunity and Ors (1987) EOC 92-198.
[8] Downer EDI Mining [2013] QCAT 99, [16].
[9] Ibid [15], [22].
[10] United Synergies Ltd [2015] QCAT 89.