Re: Protech Personnel Pty Ltd
[2022] QIRC 29
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- Unreported Judgment
- Re: Protech Personnel Pty Ltd[2022] QIRC 29
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Re: Protech Personnel Pty Ltd[2022] QIRC 29
Re: Protech Personnel Pty Ltd[2022] QIRC 29
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Re: Protech Personnel Pty Ltd [2022] QIRC 029 |
PARTY: | Protech Personnel Pty Ltd (Applicant) |
CASE NO.: | AD/2021/57 |
PROCEEDING: | Application |
DELIVERED ON: | 7 February 2022 |
MEMBER: HEARD AT: | Merrell DP On the papers |
ORDER: | The exemption granted to Protech Personnel Pty Ltd pursuant to s 113(1) of the Anti‑Discrimination Act 1991, by the first two orders made in Re: Protech Personnel Pty Ltd [2019] QIRC 175 dated 21 November 2019 is, pursuant to s 113(7) of the Anti‑Discrimination Act 1991, renewed for a period of three years from the date of this order. |
CATCHWORDS: | EQUAL OPPORTUNITY AND DISCRIMINATION – exemptions – sex discrimination – applicant a labour hire provider to the construction industry – in 2019 the applicant was granted an exemption from the Anti–Discrimination Act 1991 in respect of the recruitment of females – application to renew the exemption previously granted – exercise of discretion pursuant to s 113(7) of the Anti–Discrimination Act 1991 HUMAN RIGHTS – whether Queensland Industrial Relations Commission acts in an administrative capacity, within the meaning of the Human Rights Act 2019, when deciding to renew an exemption previously granted – whether renewing the exemption affects a human right within the meaning of the Human Rights Act 2019 – whether renewal exemption is compatible with human rights within the meaning of the Human Rights Act 2019 - application to renew exemption granted for three years |
LEGISLATION: | Anti-Discrimination Act 1991, s 7, s 14, s 15, s 15A, s 113, and s 127 Human Rights Act 2019, s 13, s 15, and s 58 |
CASES: | Minister for Aboriginal Affairs v Peko–Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 Re: Ipswich City Council [2020] QIRC 194; (2020) 305 IR 289 Re: Protech Personnel Pty Ltd [2019] QIRC 175 |
Reasons for Decision
Introduction
- [1]Protech Personnel Pty Ltd ('Protech') is a labour hire provider to the construction industry.
- [2]This decision assumes familiarity with the decision of Vice President O'Connor, dated 21 November 2019, in Re: Protech Personnel Pty Ltd.[1]
- [3]In that decision, his Honour, upon application made by Protech, made orders pursuant to s 113(1) of the Anti-Discrimination Act 1991 ('the Act') exempting Protech from the operation of ss 14, 15, 15A and 127 of the Act, in relation to the attribute in s 7(a) of the Act, only in respect of the actions or omissions which were reasonably necessary in relation to the advertising, recruitment and employment practices.
- [4]The exemption granted was for a period of two years from 21 November 2019.
- [5]As best as I understand it, by application filed on 17 November 2021, Protech, pursuant to s 113(7) of the Act, applies for a renewal of the exemption for three years ('Protech's renewal application').
- [6]The determination of Protech's renewal application requires a consideration of the Act and the relevant provisions of the Human Rights Act 2019 ('the HRA').
- [7]I caused a copy of Protech's renewal application and supporting material to be forwarded to the Queensland Human Rights Commission ('the HRC'). The HRC filed submissions on 11 January 2022 in relation to Protech's renewal application.
- [8]By directions order dated 11 January 2022, I gave Protech a further opportunity to file any further written submissions and material in support of its renewal application. Protech filed further submissions on 24 January 2022.
- [9]The question for my determination is whether, pursuant to s 113(7) of the Act, I should renew the exemption granted by Vice President O'Connor in Re: Protech Personnel Pty Ltd for a further three years.
- [10]For the reasons that follow, I will renew the first two orders in the exemption granted by Vice President O'Connor in Re: Protech Personnel Pty Ltd for a further three years.
The decision in Re: Protech Personnel Pty Ltd
- [11]In Re: Protech Personnel Pty Ltd, Protech made an application for it to be exempted from the operation of ss 14, 15, 15A and 127 of the Act in relation to the attribute of sex for a period of two years.[2]
- [12]Part of Protech's reasons for seeking the exemption was that it had been approached by one of its clients, RoadTek, Department of Transport and Main Roads, to assist in the development of a program to address the underrepresentation of women in their construction workforce. Protech submitted that the exemption it sought was so that it could undertake targeted recruitment for women to complete a certificate level course in resources and work infrastructure.[3]
- [13]In granting that exemption, Vice President O'Connor relevantly considered that:
- because the conduct which Protech proposes to engage was discriminatory, that conduct would be unlawful such that it was necessary for Protech to obtain an exemption;
- Protech had not identified any non-discriminatory ways of achieving the object or purpose for which it sought the exemption;
- because of low levels of female representation in the construction workforce, it was therefore in the community interest for programs to exist to help facilitate and encourage women to apply for jobs in industries which had been and continue to be traditionally male dominated;
- the HRC did not oppose the principle of targeted recruitment of groups such as women who were underrepresented in particular industries;
- it was reasonable and appropriate to grant the exemption because of the small percentage of women in the construction industry; and
- the exemption would provide Protech with certainty to advertise and recruit women only without fear of a complaint stemming from a requirement that would normally be unlawful under the Act.[4]
- [14]His Honour made three orders, namely:
- Protech Personnel Pty Ltd is exempt from the operations of sections 14, 15, 15A and 127 of the Anti-Discrimination Act 1991 in relation to the attribute in s 7(a).
- The exemption applies only in respect of actions or omissions which are reasonably necessary in relation to the advertising, recruitment, and employment practices.
- The exemption shall apply to Protect Personnel Pty Ltd for a period of two years from the date of this decision.[5]
Protech's renewal application
- [15]Section 113(7) of the Act provides that an exemption under s 113(1) may be renewed for further periods of not more than five years, on application by the person or people to whom, or in respect of whom, the exemption was granted.
- [16]Protech meets the description of a person to whom the exemption was granted.
- [17]In its renewal application, Protech submits that:
- women only account for 12% of the construction industry workforce;
- it is committed to promoting the engagement of women in the construction industry and also the project management sector of the construction industry;
- to date, its women in construction program has been successful over the last two years;
- it has collaborated with its clients in Queensland in the development of programs to address the underrepresentation of women in the construction workforce and its program is designed to promote growth, industry participation and to increase traineeship opportunities in a safe and structured environment/workplace;
- it is seeking to commence another program for women in construction and to expand the program to women in project management;
- the program is to commence in March 2022, with advertising proposed to have started in December 2021 and the program will be offered to approximately 20 women across Queensland;
- the extension of the exemption was being sought for Protech to partner with RoadTek to do a targeted recruitment for women to complete a Certificate III in civil construction and that it has been approached by RoadTek with an opportunity to develop a recruitment strategy to increase the number of female project managers in RoadTek;
- RoadTek would like Protech to advertise across other industries to identify people who have a complementing skill set/qualification that could potentially cross over into the civil industry being roles that would sit within civil construction, civil electrical and maintenance areas, and be supported with training mentors from both Protech and RoadTek;
- the employees will be engaged on a full-time basis for a period of 12 months by Protech;
- it is the employer, and the exemption extension is only being sought on behalf of Protech and not RoadTek;
- 9% of its workforce is women;
- it found that standard advertising holistically did not encourage smaller diverse groups to apply which is the reason why it was applying to have targeted advertising for women in its program; and
- the program:
– would provide a unique opportunity for females, without any prior experience to enter the construction industry, through a structured training and employment program;
– would position RoadTek as an employer of choice for women by encouraging women to take up a career in the construction industry;
– would allow RoadTek to meet target training and diversity targets; and
– would assist in creating a more diverse workforce aligned to Queensland State Government priorities.
The Human Rights Act 2019
- [18]The HRC, in its submissions, refers to the obligations the Commission has under the HRA in considering Protech's renewal application.
- [19]Protech, in its submissions, did not expressly deal with the application of the HRA in respect of its renewal application.
- [20]However, Protech put on evidence and made submissions of a nature which:
- allows an assessment to be made of whether or not granting a renewal of the exemption would be compatible with human rights; and
- allows for proper consideration to be given to any human right relevant to such a decision.[6]
- [21]In Re: Ipswich City Council,[7] 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.[8] 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;[9] 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.[10]
- [22]In that same case, I also determined that:
- the human rights contained in s 15(3) of the HRA (that every person is equal before the law and is entitled to equal protection of the law without discrimination), in s 15(4) of the HRA (that every person has the right to equal and effective protection against discrimination) and in s 15(5) of the HRA (that measures taken for the purpose of assisting or advancing persons or groups of persons disadvantaged because of discrimination do not constitute discrimination) would be affected by granting the exemption sought;[11]
- if the human right affected by the granting of the exemption was the human right contained in s 15(5) of the HRA, then there is no need to consider whether granting the exemption would be reasonable and justified having regard to s 13(2) of the HRA because a measure within the meaning of s 15(5) of the HRA is not discrimination within the meaning of s 15(3) and s 15(4) of the HRA and such a measure does not have to be justified under s 13(2) because there is nothing to justify;[12]
- granting the exemption sought would be a measure within the meaning of s 15(5) of the HRA because women who would be subject to the exemption sought were disadvantaged within the meaning of that subsection due to the limitation suffered in being stereotyped, namely, being seen as only being able to perform administrative/office roles in the transport industry;[13]
- the disadvantage was because of direct discrimination in that women were seen as only being able to perform administrative/office roles in the transport industry;[14]
- granting an exemption was compatible with human rights because granting the exemption did not limit human rights;[15] and
- section 113(1) of the Act was compatible with human rights because granting an exemption of the kind sought by the Council in that case did not limit human rights.[16]
- [23]In the present case, Protech has made an application for the exemption granted to it by Vice President O'Connor in 2019 to be renewed for a period of three years.
- [24]In the affidavit of Mr Adrian Baker, General Manager of Protech Personnel Pty Ltd in Queensland, New South Wales and Tasmania, he deposes that women have historically been poorly represented in the construction industry, that women only make up 12% of the workforce in the construction industry, and that Protech in Queensland engages 9% of women in non-traditional roles which is less than the construction industry average.
- [25]From this evidence, a reasonable inference may be drawn that the low representation of women in the construction industry is because of the stereotypical view that they cannot perform non-traditional roles in that industry.
- [26]In addition, my assessment is that this disadvantage is because of direct discrimination in that women are seen as only being able to perform roles in the construction industry that are traditionally performed by women.
- [27]In my opinion, for the same reasons given in Re: Ipswich City Council, in considering whether or not to exercise discretion pursuant to s 113(7) of the Act to renew an exemption, the Commission would be acting in an administrative capacity in the same way it acts in an administrative capacity in determining whether or not to grant an exemption. This is because the Commission would not be exercising either judicial or legislative power in granting the renewal.
- [28]Also, for the same reasons given in Re: Ipswich City Council, my opinion is that, in considering whether or not to grant the renewal sought by Protech:
- the human rights contained in s 15(3), s 15(4) and s 15(5) of the HRA would be affected by granting the renewal of the exemption;
- renewing the exemption would be a measure within the meaning of s 15(5) of the HRA because, on the evidence filed by Protech, the women who would be subject to the renewal of the exemption are disadvantaged within the meaning of that sub‑section due to the limitation suffered in being stereotyped; and
- because the human right contained in s 15(5) of the HRA is affected by renewing the exemption, there is no need to consider whether granting the exemption would be reasonable and justified having regard to s 13(2) of the HRA.
- [29]Finally, for the same reasons I gave in Re: Ipswich City Council, extending the exemption previously given to Protech is compatible with human rights because renewing the exemption would not limit human rights.
Section 113(7) of the Act
- [30]Section 113(7) of the Act does not refer to any matters that must be taken into account in determining whether or not to renew an exemption previously granted. If the factors a decision maker is bound to consider are not expressly stated in a statute, they must be determined by implication from the subject matter, scope and purpose of the Act.[17]
- [31]In my opinion, having regard to the subject matter, scope and purpose of the Act, in particular s 113, the considerations relevant to determining whether or not an exemption previously granted should be renewed, would include whether or not the original exemption, as granted, had been successful in, relevantly to the facts of this case, assisting women to be employed in non-traditional roles in the construction industry.
- [32]Mr Baker's evidence is that in the two years since Vice President O'Connor granted the exemption, Protech has been able to create in excess of 50 roles for women in the construction industry.
- [33]It seems to me that, on the evidence before me, the exemption granted by Vice President O'Connor, by the targeted advertisement for women to work in the construction industry, has increased the number of women working in non-traditional roles in that industry. In addition, the proposal to expand that to the non-traditional role of Project Manager is, consistently with the reasons given by Vice President O'Connor as to whether it was reasonable and appropriate to grant the exemption as originally sought, a further reason to extend the exemption already granted.
- [34]Given the relative success of Protech's program to encourage more women to work in non-traditional roles in the construction industry, by advertising for female only employees in that industry, it is reasonable to renew the exemption for the period sought by Protech, namely, three years.
Conclusion
- [35]For the reasons I have given, I am satisfied that the exemption granted to Protech in 2019 by Vice President O'Connor should be renewed for a period of three years.
Order
- [36]I make the following order:
The exemption granted to Protech Personnel Pty Ltd pursuant to s 113(1) of the Anti-Discrimination Act 1991, by the first two orders made in Re: Protech Personnel Pty Ltd [2019] QIRC 175 dated 21 November 2019 is, pursuant to s 113(7) of the Anti-Discrimination Act 1991, renewed for a period of three years from the date of this order.
Footnotes
[1] [2019] QIRC 175 ('Re: Protech Personnel Pty Ltd').
[2] Re: Protech Personnel Pty Ltd (n 1), [4] (Vice President O'Connor).
[3] Ibid [2].
[4] Re: Protech Personnel Pty Ltd (n 1), [11]-[18].
[5] Ibid [20].
[6] Human Rights Act 2019 s 58(1).
[7] [2020] QIRC 194; (2020) 305 IR 289 ('Re: Ipswich City Council').
[8] Ibid [1].
[9] Ibid [15]-[30].
[10] Ibid [36]-[37].
[11] Ibid [46]-[51].
[12] Ibid [52].
[13] Re: Ipswich City Council (n 7) [54]-[57].
[14] Ibid [58]-[64].
[15] Ibid [66].
[16] Ibid [67]-[74].
[17] Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24, 39-40 (Mason J).