Boys Town - [2014] QCAT 247

CITATION:

Boys Town [2014] QCAT 247

PARTIES:

BoysTown

APPLICATION NUMBER:

ADL104-13

MATTER TYPE:

Anti-discrimination matters

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Senior Member Endicott

DELIVERED ON:

16 May 2014

DELIVERED AT:

Brisbane

ORDERS MADE:

The application for exemption is refused.

CATCHWORDS:

ANTI-DISCRIMINATION – where employment based on gender is prohibited – where exemptions exist for genuine occupational requirements

OCCUPATIONAL REQUIREMENTS – where staff work in refuge service with women and children escaping domestic violence – where domestic violence is predominately perpetrated by men – whether employment of female staff only is a genuine occupational requirement

EXEMPTION FROM LIABILITY – where general exemption from liability sought – where specific exemption or defence available – whether general exemption is necessary

Anti-Discrimination Act 1991 (Qld) ss 25, 104, 113 and stated reasons in the pre-amble

Qantas Airways v Christie (1998) HCA 18

Boeing Australia Holdings Pty Ltd & related entities [2003] QADT 21
The Women’s Community Aid Association (Qld) Limited [2011] QCAT 593

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 (Qld) (QCAT Act).

REASONS FOR DECISION

BoysTown is a national child-safe organisation with a mission to enable young people, especially those who are marginalised and without a voice, to improve their quality of life. BoysTown wants to employ case workers to provide individual, family and group assessment and support to children, young people and families who are clients of the organisation’s Family Violence Refuge Service. BoysTown also employ other staff in the Family/Domestic Violence Refuge Service such as Social Skills Activities Workers and Counsellors.
The duties of the case worker are numerous and involve intensive work with clients of the organisation. The case worker will, among other duties, plan and develop individual case plans for each family, provide crisis intervention support to individuals and families, participate in the range of supports offered to families, provide practical support to clients, develop and implement workshops and information sessions for women and children on family violence and impacts on children and families, safety planning and self esteem, provide assistance and support to women seeking domestic violence orders, and participate in regular meetings with clients.
Although the tribunal was not informed of the specific duties performed by Activities Workers and Counsellors, it is reasonable to infer that these types of workers also provide intensive support to children, young people and women who are clients within the Family/ Domestic Violence Refuge Service. The tribunal has been told that the families resident in the Refuge Service have experienced or witnessed violence and abuse perpetrated predominately by men.
BoysTown wants to employ female staff only for these roles of case workers, activities workers and counsellors in the Refuge Service. It was submitted that women and children leaving family/domestic violence situations can be fearful of men. The refuge setting is isolated and the client services staff interact with the resident families on a daily basis.
The family/domestic…

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: [2014] QCAT 247
Decision Date: 16 May 2014

CaseChat Overview and Summary

The case of Boys Town involved an application for an exemption from the anti-discrimination provisions of the Anti-Discrimination Act 1991 (Qld) by Boys Town, an organisation providing refuge services to women and children escaping domestic violence. The application for exemption sought to allow Boys Town to employ only female staff in its refuges on the basis that it was a genuine occupational requirement (GOR) given the nature of the services provided. The Queensland Civil and Administrative Tribunal (QCAT) was tasked with determining whether the exemption was justified under the legislation. The primary legal issue before QCAT was whether Boys Town's proposed employment practice constituted a genuine occupational requirement, which would permit discrimination on the basis of gender. Boys Town argued that because domestic violence was predominantly perpetrated by men against women and children, employing only female staff was necessary for the safety and effectiveness of the refuge service. QCAT considered the criteria for establishing a GOR, including the necessity of the requirement in the circumstances of the particular work, and whether less discriminatory means could achieve the same objective. QCAT concluded that while the nature of the work was relevant, the exemption sought by Boys Town was not justified as a GOR. The Tribunal found that less discriminatory means, such as employing both male and female staff with appropriate training and supervision, could achieve the same objective of providing a safe environment for women and children escaping domestic violence. Additionally, QCAT held that a general exemption from liability was not necessary as Boys Town could avail itself of a specific exemption or defence available under the Act. The Tribunal refused Boys Town's application for exemption, emphasising the importance of balancing the need for safe working environments with the principle of non-discrimination.

Orders

Orders of the court

The application for exemption 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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