YFS Ltd[2018] QIRC 83

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

Reasons for Decision

1. [1]
   On 24 May 2018 the applicant, YFS Ltd, filed an application for an exemption from the operation of specified provisions of the Anti-Discrimination Act 1991 ("the AD Act"). Section 113 of the AD Act enables this Commission to grant an applicant an exemption from complying with sections of the AD Act.

2. [2]
   Relevant to this application, YFS Ltd provides services under a contract with the Department of Communities in a Domestic and Family Violence Perpetrator Intervention Program for clients in the Logan and surrounding areas. In addition, assistance and information is provided to male respondents attending the Beenleigh Magistrates Court in relation to domestic and family violence matters. 

3. [3]
   Applications of this nature come to the Industrial Relations Commission as a function of s 113 of the AD Act. That section refers to the "tribunal". Tribunal is defined in the Schedule to the AD Act 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. [4]
   Section 113(2)(a) of the AD Act 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. [5]
   By a letter dated 25 June 2018, the ADCQ Acting Commissioner advised this Tribunal that there were no current complaints against the applicant and that the ADCQ had no objection to the application.  

6. [6]
   The Acting Commissioner's letter drew the attention of this Tribunal to two decisions of the Queensland Civil and Administrative Tribunal in 2012 and 2015 relating to exemptions for YFS Ltd to advertise and recruit specifically male and female caseworkers for its domestic violence team.^[1] The Tribunal was advised that the factual basis for the proposed exemption is the same as in the previous applications. In those circumstances, the ADCQ advised that it would be appropriate that a further exemption ought to be granted to the applicant.

7. [7]
   The applicant informs this Tribunal that the contract with the Department of Communities requires the applicant to comply with the "Professional Practice Standards – Working with men who perpetrate domestic and family violence" and the "Professional Practice Principles – Working with men who perpetrate domestic and family violence."^[2] The stated purpose of the standards is to ensure safe, respectful and accountable service delivery to those who use abusive behaviour in their relationships and to help provide safety for those adversely affected.

8. [8]
   The "YFS Domestic and Family Violence Prevention Service; Responsible Men" is designed for men who perpetrate domestic and family violence and challenges them to change from abusive to safe and respectful behaviours. Those services aim to intervene in and prevent further abuse. The program will:

• Ensure that the safety of partners/ex-partners and children is paramount;
• Conduct an individual assessment of men referred to the service to determine suitability and readiness for group programs;
• Conduct risk assessments and safety plans;
• Deliver programs of group work for male perpetrators of domestic and family violence for a minimum of 32 hours per group, to address the use of violent or abusive behaviour in personal relationships and develop strategies for change;
• Deliver individual counselling as required;
• In partnership with Working Against Violence Support Service (WAVSS); offer and provide advocacy, support and referral for the victims of violence (including male victims) perpetrated by men who are accepted into the program, and their children, in order to ensure that their safety and support needs are met, including referral as appropriate to specialist children's services; and
• Provide court assistance and information to male respondents attending the Beenleigh Magistrates Court in relation to domestic and family violence.

9. [9]
   The services contracted with the Department of Communities require a domestic violence team comprising two female and two male staff members. The applicant advises that the make-up is necessary to ensure service delivery is in accordance with the Professional Practice Standards which requires group programs be co-facilitated by one male and one female facilitator.

10. [10]
    YFS Ltd delivers four group programs in a combination of day and evening work. The current arrangements require each worker to co-facilitate two groups per week (one day and one evening). The applicant advises that in circumstances where there is staff turnover, YFS need to recruit to ensure that male and female facilitating can continue evenly within the team. It is submitted that it is for this reason that the exemption is sought. The exemption will enable YFS to restore the gender balance through specific recruitment.

11. [11]
    I note that the applicant has not, on the face of their application, sought a specific exemption from the provisions of sections 14, 15, 124 and 127 of the AD Act.

12. [12]
    Section 14 of the AD Act "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 124 "Unnecessary information" prohibits a person from asking another person, either orally or in writing, to supply information on which 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 AD Act; the section also provides a clarification and defences.

13. [13]
    The application before the Tribunal would be ineffectual if an amendment was not made. Accordingly, the Tribunal amends the application to include sections 14, 15, 124 and 127 of the AD Act as sections from which the applicant seeks to be exempt. The Tribunal makes the amendment under s 174B of the ADA:

Conclusion

14. [14]
    I am satisfied that the Tribunal should grant the exemption sought. I note that the Domestic and Family Violence Perpetrator Intervention Program has as its primary goal to challenge those who perpetrate domestic and family violence to change from abusive to safe and respectful behaviours and to provide services which aim to intervene in and prevent further abuse. The contractual obligations required by the Department of Communities, in particular, the adoption of the Professional Practice Standards make it necessary for domestic violence teams to be constituted by an equal ratio of male and female facilitators. In order that this may be achieved, an exemption is necessary under s 113 of the AD Act to allow for the recruitment of staff to maintain the appropriate gender balance to ensure the delivery of services by YFS under the contract with the Department of Communities.

15. [15]
    I further find that the exemption is necessary as it provides certainty for the applicant, certainty to conduct recruiting without fear of a successful complaint stemming from the requirements under the Professional Practice Standards of the department.

16. [16]
    I note that the exemption requested is for 5 years. That request is consistent with the previous orders made by QCAT on similar applications. In the absence of any compelling reasons or objections I am minded to grant the order for a period of five years from the date of the application.

17. [17]
    I have, for the reasons advanced above, formed the view that it is reasonable to grant the application.

Orders

18. [18]
    I make the following orders:

1. YFS Ltd 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(a); and
2. The exemption shall apply to the applicant from the date of the application, 24 May 2018, for a period of five years.