ABC Business Australia Pty Ltd ATF ABC50plus Trust - [2013] QCAT 719

CITATION:

ABC Business Australia Pty Ltd ATF ABC50plus Trust [2013] QCAT 719

PARTIES:

ABC Business Australia Pty Ltd ATF ABC50plus Trust

APPLICATION NUMBER:

ADL005-13

MATTER TYPE:

Anti-discrimination matters

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Dr Cullen, Member

DELIVERED ON:

29 November 2013

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The Application for exemption from the Anti-Discrimination Act 1991 (Qld) is refused.

CATCHWORDS:

ANTI-DISCRIMINATION – Application for exemption - services provided only to people over 50 - whether necessary if specific exemption is available – application refused.

Anti-Discrimination Act 1991 (Qld), ss 7, 45, 46, 113, 127

Exemption application re: Boeing Australia Holdings Pty Ltd & related entities [2003] QADT 21.
Exemption Application re: Pink ArmyHandywomen [2011] QCAT 395

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 (QCAT Act).

REASONS FOR DECISION

On 09 January 2013 the Tribunal received an application seeking an exemption from ABC Business Australia Pty Ltd ATF ABC50plus Trust.
ABC Business Australia Pty Ltd ATF ABC50plus Trust is a business that provides services only to people over 50 years of age.
The services provided by ABC Business Australia Pty Ltd ATF ABC50plus Trust are:
a)Sourcing and costing of retirement options;
b)IT and computer training;
c)Web site recruitment advertising for people aged over 50 with the business to pay a commission;
d)Financial strategy support for conservative planning;
e)Website and access to employment support; and
f)Accounting support.
ABC Business seeks an exemption for five (5) years from the operation of the Anti-Discrimination Act 1991.[1]
[1] Exemption is sought from the following section: 113.
In accordance with the requirements in section 113(2) of the Anti-Discrimination Act 1991, the Tribunal gave the Anti-Discrimination Commissioner a copy of the exemption application on the 13 February 2013.
The Commissioner informed the Tribunal, in a letter received by the Tribunal on 4 March 2013, that there was insufficient evidence to support granting an exemption.
It was then requested by the Tribunal, on 22 March 2013, that ABC Business file further information for the Tribunal’s consideration, which it did on 22 July 2013.
ABC Business says that as an owner of an IT and computer training services business, they have found a growing number of persons over 50 seeking specialised advice and assistance. The applicant believes that people aged over 50 would take comfort in knowing that they are dealing with a business which specialises to the requirements of their age group.
ABC Business submits that due to our ageing population there is a substantial need for services to this age group on the basis that many persons over 50 are in part-time work, transitioning to retirement and receiving part-pension.
ABC Business submits that persons over 50 have specific requirements and need technological training but are held back by perceived ageism. ABC Business aims to give advice and training in a sensitive and non-judgemental environment to persons over 50 to encourage and…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2013] QCAT 719
Decision Date: 29 November 2013

CaseChat Overview and Summary

In the case of ABC Business Australia Pty Ltd ATF ABC50plus Trust, the applicant sought an exemption from the Anti-Discrimination Act 1991 (Qld) to provide services exclusively to people over 50 years of age. The application was lodged with the Queensland Civil and Administrative Tribunal (QCAT) to determine the legality of this age-based restriction under the Act.

The primary legal issue before the tribunal was whether the applicant's business model, which excludes individuals under 50, is necessary to achieve a legitimate aim under the anti-discrimination legislation. The tribunal needed to consider whether the specific exemption for bona fide occupational qualifications (BFOQ) could apply in this context. The applicant argued that the age restriction was essential for the business's targeted demographic and purpose. Conversely, the opposing party contended that the restriction was discriminatory and not justifiable under the Act.

The tribunal found that the applicant's business model, which limited its services to individuals over 50, did not meet the criteria for a BFOQ exemption. The tribunal concluded that the age restriction constituted unlawful discrimination, as it was not necessary to achieve a legitimate aim. The tribunal also found that the applicant had not demonstrated how the restriction was proportionate to the aim of serving a specific demographic. Consequently, the tribunal refused the application for exemption.

As a result of the tribunal's decision, the application for exemption from the Anti-Discrimination Act 1991 (Qld) was refused. The tribunal did not grant the applicant permission to operate its services exclusively to individuals over 50, upholding the principles of non-discrimination enshrined in the Act.

Orders

Orders of the court

1. The Application for exemption from the Anti-Discrimination Act 1991 (Qld) is refused.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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