Centacare Community Services

[2015] QCAT 331

CITATION: Centacare Community Services [2015] QCAT 331

PARTIES:	Centacare Community Services (Applicant)
APPLICATION NUMBER:	ADL054-15

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Member Gardiner

DELIVERED ON: 1 September 2015

DELIVERED AT: Brisbane

ORDERS MADE:		The application for an exemption under the Anti-Discrimination Act 1991 is dismissed.
CATCHWORDS:	ANTI-DISCRIMINATION – where a need arises for  male workers in a female dominated home care service to provide residential domestic services – where care provided is of a personal nature to male clients EXEMPTION – where exemption sought to recruit male workers – where role is currently performed by predominately female workers – where a specific exemption and defence available – where general exemption granted not considered Anti-Discrimination Act 1991 (Qld) ss 7(a), 14, 26 and 105

APPEARANCES:

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

1. Centacare Community Services delivers support services to people with a disability in the Beenleigh and Oxley areas.

2. A majority of clients of these support services are male, with most requiring personal care, for example, showering, dressing and personal hygiene.

3. Centacare Community Services has a staff ratio of 3:1 female to male employees.  The service says that the community care and disability services area is stereotypically a female dominated area.

4. Some male clients prefer to have these personal services provided by a male worker and out of respect for these requests, Centacare Community Services seeks an exemption from Part 3 section 127 of the Anti-Discrimination Act 1991 (Qld) to allow advertising for male support workers to support their clients.

5. QCAT is required to provide a copy of the application to the Anti-Discrimination Commissioner and to have regard to any submission made by the Commissioner.  A copy of the application was sent to the Commissioner and on 19 August 2015, the Commissioner informed QCAT that he does not oppose to the application and makes no submissions on it. 

6. The Commissioner does point however to section 26 of the Anti-Discrimination Act saying that the provision of personal services in a person’s home is arguably analogous to the exemption in that section allowing a person to discriminate on grounds other than race, in relation to the residential domestic services performed in a person’s home.

7. Section 26 of the Act is as follows:

   Residential domestic services
   (1) It is not unlawful for a person to discriminate—

   (a)  in the arrangements made for deciding who should be
         offered work; or
   (b)  in deciding who should be offered work; or
   (c)  in failing to offer work; or
   (d)  in dismissing a worker;

   if the work is to perform domestic services at the person’s home.

   (2) Subsection (1) does not apply to discrimination on the basis of race.  

8. I have examined whether an exemption is necessary[1] as conduct first appearing to breach the provisions of the Anti-Discrimination Act 1991 may be excused by specific exemptions or defences in the Act and it may not be necessary to grant a general exemption under section 113 or specifically under section 127.

   [1]Exemption application Re: Boeing Australia Holdings Pty Ltd & related entities [2003]

   QADT 21.

9. “Residential domestic services” are not defined under the Act but I am satisfied that on a plain reading of this term, it is wide enough to include the personal care provided to male clients (indeed all clients) in their own home.

10. On that basis, I am satisfied that section 26 of the Act allows for lawful discrimination in arrangements made for deciding who should be offered work, offering work and failing to offer work. In my view “arrangements” includes the exemption Centacare seeks in advertising for male workers and the subsequent offering of work to male workers and not offering of work to female workers in some circumstances.

11. The Act recognises that everyone should be equal before and under the law and have the right to equal protection and benefit of the law without discrimination but that the protection of fragile freedoms is best effected by legislation that reflects the aspirations and needs of contemporary society.[2]  

    [2]Anti-Discrimination Act 1991 (Qld): Parliaments reasons for enacting: reasons (6)(a) and (b).

12. I am satisfied that the upholding of personal care and dignity for Centacare clients in their own home who are some of the most vulnerable in our community, is an appropriate aspiration and need of contemporary society.

13. I am not satisfied it is necessary to grant a specific exemption to Centacare Community Services in the terms of this application and I will dismiss the application. 

14. Centacare Community Services can note in any advertisements that are targeting male carers that “Centacare Community Services considers this to be a recruitment for residential domestic services under s 26 of the Anti-Discrimination Act 1991” or similar wording, to indicate its intentions to raise this exemption should a complaint be made.