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Re: Community Solutions Group Ltd[2023] QIRC 333

Re: Community Solutions Group Ltd[2023] QIRC 333

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Re: Community Solutions Group Ltd [2023] QIRC 333

PARTY:

Community Solutions Group Ltd

(Applicant)

CASE NO:

AD/2023/112

PROCEEDING:

Application for exemption

DELIVERED ON:

22 November 2023

MEMBER:

McLennan IC

HEARD AT:

On the papers

ORDER:

  1. Community Solutions Group Ltd is exempt from the operations of ss 14, 15, 15A, 124 and 127 of the Anti-Discrimination Act 1991 (Qld), in relation to the attribute in s 7(a) of the Anti-Discrimination Act 1991 (Qld).
  1. The exemption applies only in respect of actions or omissions which are reasonably necessary in relation to the advertising, recruitment and employment practices.
  1. The exemption shall apply to Community Solutions Group Ltd for a period of 5 years from the date of this decision.

CATCHWORDS:

EQUAL OPPORTUNITY AND DISCRIMINATION – exemptions – sex discrimination – application to grant exemption under s 113 of the Anti-Discrimination Act 1991 (Qld) – where the applicant seeks an exemption in order for it to recruit women to fill approximately 20 placements as full-time trainees, undertaking Certificate III in Civil Construction to work in the Civil Construction Industry – whether exemption 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 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 Aboriginal Affairs v Peko‑Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24

Minister for Education and Commissioner for Equal Opportunity and Ors (1987) EOC 92-198

Re: Ipswich City Council [2020] QIRC 194; (2020) 305 IR 289

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

Reasons for Decision

Introduction

  1. [1]
    On 16 October 2023, Community Solutions Group Ltd ('CSG'; 'the Applicant') filed an application for an exemption from the operation of specified provisions of the Anti-Discrimination Act 1991 (Qld) ('the AD Act').
  1. [2]
    CSG was selected to partner with RoadTek, within the Department of Transport and Main Roads ('TMR'), to deliver a Women in Construction ('WIC') program for 2024.
  1. [3]
    The WIC program was developed to address the underrepresentation of women in the construction workforce.  CSG submitted that:

According to the Construction Skills Queensland ('CSQ') Female Construction Workforce 2023 Snapshot Report, the percentage of women in trades and the industry in Queensland is 12.4% and only 4.3% in construction trades.[1]

  1. [4]
    CSG's intention is to seek candidates for a 7-week employment program, to commence in March 2024.  The first 3 weeks of the program is training in Brisbane, followed by a 4-week practical work placement at a designated RoadTek depot in Queensland.  Locations include Cairns, Townsville, Cloncurry, Mackay, Rockhampton, Wide Bay, Sunshine Coast, Brisbane, Gold Coast, Toowoomba, Roma and Warwick.
  1. [5]
    By directions order dated 25 October 2023, I gave CSG opportunity to file any further written submissions and material in support of its exemption application. CSG filed further submissions on 25 October 2023.
  1. [6]
    I caused a copy of CSG's exemption application and supporting material to be forwarded to the Queensland Human Rights Commission ('the HRC').  The HRC Commissioner elected not to file submissions in relation to CSG's exemption application.

The Application

  1. [7]
    CSG seeks that an exemption be granted in order for it to recruit women to fill approximately 20 placements as full-time trainees, undertaking Certificate III in Civil Construction to work in the Civil Construction Industry.
  1. [8]
    The application filed on 16 October 2023 sought orders pursuant to s 113(1) of the AD Act, exempting CSG 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 being able to advertise and employ only female trainees".[2]
  1. [9]
    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.
  1. [10]
    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.
  1. [11]
    Section 15A "Discrimination by principals" prohibits discrimination against a worker who does work, or is to do work, for another person because of a contractual arrangement between the principal and a third party, or another arrangement between a principal and a third party.
  1. [12]
    Section 124 "Unnecessary information" prohibits a person from asking another to supply information on which unlawful discrimination might be based.
  1. [13]
    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.

Question to be decided

  1. [14]
    The question for my determination is whether, pursuant to s 113(1) of the AD Act, I should grant CSG's exemption application for five years.

Previous relevant Commission decisions

  1. [15]
    The WIC program has been run for seven consecutive years since 2016 and was previously delivered by Protech Personnel Pty Ltd ('Protech').  During that time, Protech's exemption applications for the WIC program had been granted by this Commission.[3] 
  1. [16]
    In those decisions, his Honours made orders pursuant to s 113(1) of the AD Act exempting Protech from the operation of ss 14, 15, 15A and 127 of the AD Act, in relation to the attribute in s 7(a) of the AD Act, only in respect of the actions or omissions which were reasonably necessary in relation to the advertising, recruitment and employment practices.
  1. [17]
    As is the case here too, the Commission's earlier determination of Protech's renewal application[4] required a consideration of the AD Act and the relevant provisions of the Human Rights Act 2019 (Qld) ('the HR Act').
  1. [18]
    In this decision to grant CSG's exemption application, I follow his Honours' reasoning in the previous decisions of this Commission.[5]

Consideration

  1. [19]
    Vice-President O'Connor helpfully set out the relevant considerations in the earlier Re: Protech Personnel Pty Ltd[6] decision of this Commission:

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:

  • Whether the exemption is necessary;
  • Whether there are any non-discriminatory ways of achieving the objects or purposes for which the exemption is sought;
  • Whether the exemption is in the community interest;
  • Whether any other persons or bodies other than the applicant support the application;
  • Whether it is reasonable and appropriate to grant the exemption; and
  • The effect of not granting the exemption.[7]
  1. [20]
    I now turn to deal with some of the factors in exercising the discretion under s 113 AD Act.
  1. [21]
    Vice President O'Connor's explanation of the relevant considerations for the WIC program in Re: Protech Personnel Pty Ltd,[8] are also directly applicable here.

Is the exemption necessary?

  1. [22]
    The conduct in which CSG proposes to engage is discriminatory. Therefore, for the proposed conduct to be lawful it will be necessary for CSG to obtain an exemption.

Are there any non-discriminatory ways of achieving the objects or purposes for which the exemption is sought?

  1. [23]
    The Applicant has not identified any non-discriminatory ways of achieving the object or purpose for which the application is sought.

Is the exemption in the community interest?

  1. [24]
    In the statement filed 25 October 2023, in support of the exemption application, the Applicant cited the Construction Skills Queensland (CSQ) Female Construction Workforce 2023 Snapshot Report, in which "the percentage of women in trades and the industry in Queensland is 12.4% and only 4.3% in construction trades."
  1. [25]
    As Vice President O'Connor concluded at that time:

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.[9]

Are there any other persons or bodies other than the Applicant that support the application?

  1. [26]
    The Queensland Human Rights Commissioner (QHR Commissioner) elected not to make a submission in this case. 
  1. [27]
    I note that the QHR Commissioner's view in the earlier matter of Re: Protech Personnel Pty Ltd[10] was essentially that it did not oppose the principle of targeted recruitment to groups such as women who are under-represented in particular industries.
  1. [28]
    The material does not disclose if any person or body opposes the granting of the exemption.

Whether it is reasonable and appropriate to grant the exemption

  1. [29]
    As women continue to form a small percentage of the construction industry, standard advertising appears not to have succeeded in encouraging smaller and diverse groups to apply. I concur with the view expressed by Vice President O'Connor, that this suggests a reason to engage in alternative types of advertising, such as targeted advertising in order to attract women applicants. In the circumstances it is reasonable and appropriate to grant the exemption.

The effect of not granting the exemption.

  1. [30]
    It is apparent that a failure to grant the exemption would expose CSG to a risk that it may unlawfully breach a provision of the AD Act. The exemption will provide CSG with certainty to advertise and recruit women only, without fear of a complaint stemming from a requirement that would normally be unlawful under the AD Act.

Human Rights Act

  1. [31]
    With respect to the HR Act, CSG submitted that:

… while the Queensland Industrial Relations Commission ('the Commission') has the discretion to grant an exemption from the operation of a specified provision of the Act, it also has obligations under the Human Rights Act 2019 (the 'HR Act') when acting in an administrative capacity.  CSG submits that the exemptions for welfare measures and equal opportunity measures contained in ss 104 and 105 of the HR Act may apply.

CSG's application acknowledges the rights to equality and to equal protections of the law without discrimination as provided for in s 15(3) of the HR Act.

The purpose of s 15(4) of the HR Act is to ensure that every person has the right to equal and effective protection against discrimination, the subject of the exemption sought by CSG, being a measure taken for the purpose of assisting or advancing persons or groups of persons disadvantaged because of discrimination is a measure within s 15(5).[11]

  1. [32]
    I note Deputy President Merrell's explanation of the relevant HR Act considerations, in his Honour's decision in Re: Protech Personnel Pty Ltd:[12]

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.

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;
  • 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;
  • 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;
  • 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;
  • granting an exemption was compatible with human rights because granting the exemption did not limit human rights; 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.[13]
  1. [33]
    In the present case, it has been submitted that women have historically been poorly represented in the construction industry and that women only make up approximately 12% of that workforce.
  1. [34]
    I follow the reasoning of Deputy President Merrell in Re: Protech Personnel Pty Ltd,[14] where he concluded:

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.

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.[15]

Conclusion

  1. [35]
    I am satisfied that I should grant the exemption sought.
  1. [36]
    I note that the exemption requested is for five years. In the absence of any compelling reasons or objections I will grant the order for a period of five years from the date of this decision.

Order

  1. [37]
    I make the following orders:

1. Community Solutions Group Ltd is exempt from the operations of ss 14, 15, 15A, 124 and 127 of the Anti-Discrimination Act 1991 (Qld), in relation to the attribute in s 7(a) of the Anti-Discrimination Act 1991 (Qld).

2. The exemption applies only in respect of actions or omissions which are reasonably necessary in relation to the advertising, recruitment and employment practices.

3. The exemption shall apply to Community Solutions Group Ltd for a period of 5 years from the date of this decision.

Footnotes

[1] Application filed 16 October 2023, 3 [4].

[2] Application filed 16 October 2023, 4 [1].

[3] Re: Protech Personnel Pty Ltd [2019] QIRC 175; Re: Protech Personnel Pty Ltd [2022] QIRC 029.

[4] Re: Protech Personnel Pty Ltd [2022] QIRC 029.

[5] Ibid; Re: Protech Personnel Pty Ltd [2019] QIRC 175.

[6] [2019] QIRC 175.

[7] Re: Protech Personnel Pty Ltd [2019] QIRC 175, 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: 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.

[8] [2019] QIRC 175.

[9] Ibid [14].

[10] Ibid.

[11] Applicant's statement filed 25 October 2023, Schedule 1 - Grounds of Application, [3]-[5].

[12] QIRC 029.

[13] Ibid [21]-[22], citing Re: Ipswich City Council [2020] QIRC 194; (2020) 305 IR 289.

[14] QIRC 029.

[15] Ibid [25]-[26].

Close

Editorial Notes

  • Published Case Name:

    Re: Community Solutions Group Ltd

  • Shortened Case Name:

    Re: Community Solutions Group Ltd

  • MNC:

    [2023] QIRC 333

  • Court:

    QIRC

  • Judge(s):

    McLennan IC

  • Date:

    22 Nov 2023

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Boeing Australia Holdings Pty Ltd & related entities (2003) QADT 21
2 citations
Jump To
Cite 1 - (2003) QADT 21
Cite 2 - (2003) QADT 21
Brown v Moore (1996) EOC 92
2 citations
Jump To
Cite 1 - (1996) EOC 92
Cite 2 - (1996) EOC 92
Exemption Application re: Mt Isa Mines Ltd [2001] QADT 16
2 citations
Jump To
Cite 1 - [2001] QADT 16
Cite 2 - [2001] QADT 16
Fares v Boxhill College of TAFE a decision of the Equal Opportunity Board of Victoria (1992) EOC 92
2 citations
Jump To
Cite 1 - (1992) EOC 92
Cite 2 - (1992) EOC 92
Minister for Aboriginal Affairs v Peko Wallsend Ltd (1986) 162 CLR 24
1 citation
Jump To
Cite 1 - (1986) 162 CLR 24
Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40
1 citation
Jump To
Cite 1 - [1986] HCA 40
Re Protech Personnel Pty Ltd [2019] QIRC 175
6 citations
Jump To
Cite 1 - [2019] QIRC 175
Cite 2 - [2019] QIRC 175
Cite 3 - [2019] QIRC 175
Cite 4 - [2019] QIRC 175
Cite 5 - [2019] QIRC 175
Cite 6 - [2019] QIRC 175
Re: Ipswich City Council [2020] QIRC 194
2 citations
Jump To
Cite 1 - [2020] QIRC 194
Cite 2 - [2020] QIRC 194
Re: Ipswich City Council (2020) 305 IR 289
2 citations
Jump To
Cite 1 - (2020) 305 IR 289
Cite 2 - (2020) 305 IR 289
Re: Protech Personnel Pty Ltd [2022] QIRC 29
3 citations
Jump To
Cite 1 - [2022] QIRC 29
Cite 2 - [2022] QIRC 29
Cite 3 - [2022] QIRC 29
Stevens v Fernwood Fitness Centres Pty Ltd (1987) EOC 92
2 citations
Jump To
Cite 1 - (1987) EOC 92
Cite 2 - (1987) EOC 92
United Synergies Ltd [2015] QCAT 89
2 citations
Jump To
Cite 1 - [2015] QCAT 89
Cite 2 - [2015] QCAT 89

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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