CISC Pty Ltd t/as The Construction Training Centre - [2017] QCAT 301

CITATION:

CISC Pty Ltd t/as The Construction Training Centre [2017] QCAT 301

PARTIES:	CISC Pty Ltd t/as The Construction Training Centre (Applicant)
APPLICATION NUMBER:	ADL084-16

MATTER TYPE:	Anti-discrimination matters
HEARING DATE:	1 September 2017

HEARD AT:

Brisbane

DECISION OF:

Member Gordon

DELIVERED ON:

1 September 2017

DELIVERED AT:

On the papers

ORDERS MADE:

1. It is declared that:-

(a) The proposal by CISC Pty Ltd t/as The Construction Training Centre to pay an additional 1% in superannuation contributions for its female employees would if not rendered lawful by a statutory provision, be direct discrimination in the superannuation area of the Anti-Discrimination Act 1991 (Qld).

(b) The proposal is rendered lawful by the operation of section 59 of the Anti-Discrimination Act 1991 (Qld) because the proposal is permitted under the Sex Discrimination Act 1984 (Cth).

2. Therefore an exemption from the operation of the Anti-Discrimination Act 1991 (Qld) is not required and the application is dismissed.

CATCHWORDS:

HUMAN RIGHTS – DISCRIMINATION – DIRECT DISCRIMINATION – where there is an application for exemption from the operation of the direct discrimination provisions in the area of superannuation – where the applicant wishes to pay an additional 1% in superannuation contributions for its female employees – whether already exempt by the provisions of the Anti-Discrimination Act 1991 (Qld)

Anti-Discrimination Act 1991 (Qld), s 10, s 55,
s 59, s 113
Sex Discrimination Act 1984 (Cth), s 7D

Jacomb v Australian Municipal Administrative Administrative Clerical & Services Union [2004] FCA 1250
Walker v Cormack & Anor [2010] FMCA 9

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

The Applicant, CISC Pty Ltd t/as The Construction Training Centre (CTC), wishes to pay its female employees (but not its male employees) an additional 1% over the mandated employer contributions.[1]
[1]The mandated employer contributions are the superannuation guarantee contributions (which are a statutory minimum) and any superannuation contributions required by an award.
The proposal appears to be direct discrimination under s 10 of the Anti-Discrimination Act 1991 (Qld) (the Act) because it would be treating male employees less favourably than female employees where their circumstances are (apart from their gender) the same or not materially different.
Such discrimination is not a contravention of the Act unless it comes within one of the “areas” protected by the Act. Which area applies to this proposal is important for the resolution of this application. CTC suggest that it comes within the work area. However, it appears that it may come within the superannuation area.

Which area (if any) applies to the proposal?

The superannuation area includes this provision:-
55     Discrimination in superannuation area (work)
A person must not discriminate against another person who works for the person—
(a)     in any variation of the terms of the work that relate to superannuation; or
(b)     in denying or limiting the other person’s access to any benefit to a…

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: [2017] QCAT 301
Decision Date: 1 September 2017

CaseChat Overview and Summary

CISC Pty Ltd, trading as The Construction Training Centre, applied to the Queensland Civil and Administrative Tribunal for an exemption from the operation of the direct discrimination provisions in the area of superannuation under the Anti-Discrimination Act 1991 (Qld). The applicant sought to pay an additional 1% in superannuation contributions for its female employees, a proposal that the applicant believed would be lawful if exempt from the anti-discrimination legislation. The Tribunal was tasked with determining whether the proposal constituted direct discrimination under the Act, and if so, whether it could be rendered lawful under any applicable statutory provisions.

The central legal issue was whether the proposal to pay an additional 1% in superannuation contributions to female employees constituted direct discrimination in contravention of the Anti-Discrimination Act 1991 (Qld). If it did, the Tribunal also needed to decide whether the proposal could be exempted from the operation of the Act under section 59, which allows exemptions if the proposed action is permitted under another Act. Specifically, the Tribunal examined whether the proposal was permitted under the Sex Discrimination Act 1984 (Cth).

The Tribunal concluded that the proposal to pay an additional 1% in superannuation contributions to female employees would constitute direct discrimination if not rendered lawful by a statutory provision. However, the Tribunal found that the proposal was rendered lawful by the operation of section 59 of the Anti-Discrimination Act 1991 (Qld) because it was permitted under the Sex Discrimination Act 1984 (Cth). Therefore, the Tribunal dismissed the application for an exemption, declaring that no exemption from the operation of the Anti-Discrimination Act 1991 (Qld) was required.

Orders

Orders of the court

1. It is declared that:-

(b) The proposal is rendered lawful by the operation of section 59 of the Anti-Discrimination Act 1991 (Qld) because the proposal is permitted under the Sex Discrimination Act 1984 (Cth).

2. Therefore an exemption from the operation of the Anti-Discrimination Act 1991 (Qld) is not required and the application is dismissed.

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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