Diamond Weightloss Centre and Leisure Co Pty Ltd - [2006] SADC 35

DISTRICT COURT OF SOUTH AUSTRALIA
(District Court Administrative and Disciplinary Division: Application)
DIAMOND WEIGHTLOSS CENTRE AND LEISURE CO PTY LTD
Reasons for Decision of His Honour Judge Tilmouth
(Member Altman and Member Shetliffe)
24 March 2006
ADMINISTRATIVE LAW - ADMINISTRATIVE TRIBUNALS
Human Rights, Grounds of Discrimination - Sex Discrimination, Membership at Club and Associations.
South Australia Equal Opportunity Tribunal- Exemptions under Equal Opportunity Act (SA) 1984
All female fitness centre - whether exemptions should be granted
Held: Exemptions granted pursuant to s92 of the Act as being consistent with the objectives of the Act, in the activity or class of activity relating to the provisions of health and fitness centres.
Equal Opportunity Act 1984 (SA) ss 30, 36(2), 39, 47, 92 and 103, referred to.
Stevens v Fernwood Fitness Centres Pty Ltd (1996) EOC 4192-782, applied.
Pulis v Banfield (1986) EOC 92-170, (1988) EOC 92-243, considered.

DIAMOND WEIGHTLOSS CENTRE AND LEISURE CO PTY LTD
[2006] SADC 35
The Applications

The Tribunal has before it two applications, both involving essentially the same issues and both seeking the same substantive relief. They were heard consecutively, each party being present during the hearing of the other and with each adopting in their own proceeding, so much of the other proceeding as was relevant to its own case.
The first, an application filed on 14 December 2005 by Diamond Weightloss Centre of Shop 5, 200 Richmond Road Marleston, applies pursuant to section 92 of the Equal Opportunity Act 1984 (SA) (“the Act”) for an exemption from the provisions of ss30, 39 and 103 of the Act. As it turns out, Diamond Weightloss Centre is a registered business name under the Business Names Act 1996 (SA) operated by a Vicki Radford, Kristy Mott and Christine Pressler. This will require further consideration for reasons mentioned later.
The second application by Leisure Co Pty Ltd, trading as “In Shape Women” Greenhill Road Wayville, was filed on 10 January 2005, and seeks exemptions from the same provisions of the Act.
Preliminary Issues
Both applications are premised on the assumptions that the employment of women only, with exclusively women clients, would constitute a discrimination against employees in the terms and conditions of their employment as prohibited by s30 of the Act, that the provision of goods and services so offered would constitute discrimination against men as prohibited by s39 of the Act, and advertisements seeking only women employees to work for the applicants constitutes discriminatory advertising prohibited by s103 of the Act. On the face of these applications, those assumptions would appear to be prima facie well founded. In that respect it is important to recognise the Tribunal will not grant exemptions unnecessarily, so that it is incumbent upon the applicant to demonstrate an arguable case that the circumstances might constitute discrimination to which the Act applies[1]. This they have done; see for example Pulis & Banfield v Moe City Council[2] where it was held that it be discriminatory to hold a “women’s night” when swimming facilities were reserved exclusively to women at particular times, at a community recreation centre.
[1] R v Neham Pty Ltd & Anor [1987] EOC ¶ 92, 194.
[2] (1986) EOC ¶92-170 and an appeal (1988) EOC ¶ 92-243.
The Tribunal also notes the respective applications, with accompanying hearing dates were advertised in the ‘Advertiser’ on Friday 17 February 2006 at page 66, in accordance with section 92(7) of the Act.
The Basis of the Applications
Miss Radford who appeared for Diamond Weightloss Centre in the first application, was previously employed by Fernwood Women’s Health Club (“Fernwood”). She has commenced her own business trading in the same industry, more or less as a competitor. Her experience there, and from other studies undertaken of the industry she has read, indicate that women, especially those suffering obesity problems, disfiguring injuries or operations, and those simply wanting to avoid the gaze of men in general, as well as those belonging to certain religious groups, strongly prefer to work-out, lose weight and seek general health advice and support from organisations structured and operated exclusively for women clients.
So far as the application by Leisure Co Pty Ltd is concerned, the picture is much the same. It has operated in the health and fitness sector for over 20 years. Now it is desirous of continuing to improve and enhance the quality of life for women who choose its services, so that it is targeting a sector of the market seeking “safer venues” for women. It plans to open two more health clubs, providing services for the specific needs of women, that is “a superior and preferred service in a friendly caring and safe environment”. Leisure Co acknowledges there are approximately six “mixed fitness centres” within the vicinity of the proposed location of its new centres, but likewise, its surveys indicate that some women would “never attend mixed fitness centres and would choose not to exercise if no other option was made available”. Both applicants have in mind specific programs related to post childbirth, arthritis and osteoporosis, weight management, cardiac classes designed specifically for diabetes sufferers, as well as those recovering from surgery, traumatic or otherwise.
Mr Pollick, the Managing Director of Leisure Co Pty Ltd, in an affidavit filed with the Tribunal, in the case of the second applicant, speaks of his organisation having identified a need to provide services and facilities available at a time women would be more likely to be able to use them, the need for women’s only facilities and of the need to provide “sensitive health and fitness needs of women, in an environment where these matters can be addressed and will allow women to exercise in privacy”. Both applicants contend health centres for women, avoid embarrassment and low self-esteem, and provide mutual support, without intimidation.
During the course of the hearings, further submissions were made in support of both applications, which identified a clear class of women in the market place in need of such services.
Is an exemption otherwise necessary?
A question arose as to whether or not both applicants could seek concessions under s34(2) of the Act, which provides:
This division does not apply to discrimination on the ground of sex in relation to employment for which it is a genuine occupational requirement that a person be of a particular sex.
On reflection this provision does not appear to apply to the situation of the applicants. First of all, there is no mechanism within the Act for an exemption to be granted under section 34(2). Secondly, the ‘Division’ to which its operation is confined would appear to be Division II of Part III, “discrimination in employment” – ss30-34 inclusive. Although it might otherwise have assisted the applicants in relation to any potential breach of section 30, it certainly does not on this construction, when it comes to the exemptions sought under ss39 and 103. On its proper construction, we feel in any case, that s34(2) provides a defence to a potential complaint of discrimination in employment, rather than a mechanism by which an exemption can be sought before-hand.
Findings of Fact
We have no doubt that the applicants in each case run genuine businesses on the evidence presented before us, and that both harbour a genuine desire to provide the restricted services mentioned, and have the necessary experience to effectively carry out the proposed services or implement the proposed plans for expansion. Furthermore, such services would satisfy a justifiable need for several identifiable classes of women, particularly the elderly, the disfigured, the obese, those seeking seclusion, and/or the mutual support of other women having similar problems as well as those holding specific religious views and susceptibilities of women adherents, precluding them from exercising in the presence of men.
As mentioned above, there is a prima facie need for an exemption in the case of each of the three sections referred to in the Act accordingly. This consideration attracts the jurisdiction invoked by the applicants under section 92 of the Act, which enables an exemption to be granted by the Tribunal:
from any of the provisions of this Act in relation to
(a)     a person, or class of persons;
(b)     an activity, or class of activity; or
(c)     any circumstances of a specified nature.
Such exemption might be granted “unconditionally or upon conditions” (section 92(2)(a)) and we note at any time an exemption may be revoked by the Tribunal “upon breach of a condition” (section 92(2)(b)) and that such exemption otherwise remains in force for a period not exceeding three years, with the power of renewal vested in the Tribunal for a further period or periods of three years[3].
[3] S92(2)(c).
The Commissioner for Equal Opportunity appeared in these proceedings pursuant to section 92(4)(b), and presented to the Tribunal useful and informative written submissions, in which the applications for exemption were not opposed. Despite that concession, the Tribunal clearly is required to exercise its independent judgment in the matter and in so doing, it must carry into effect the obligation under section 92(6), to have regard “to the desirability of certain discriminatory actions being permitted for the purpose of redressing the effect of past discrimination” and to have “regard to any other factors that the Tribunal considers relevant”.
The Commissioner did not dispute any of the facts referred to in the affidavits or oral material submitted on behalf of either applicant, and the Commissioner went on to accept that some women would not attend a fitness centre at all, if the only option were mixed centres. Investigations by the Commissioner revealed the services to be offered by the applicants were similar to those of Fernwood, and it was further pointed out that each applicant operated as business enterprises “in the same competitive commercial market”. It appears from the material placed before us, that there are other fitness centres readily available to both sexes in the vicinity where both applicants trade or intend to trade. The Commissioner could not recall having received a complaint under the Act alleging sexual discrimination by any health and fitness centre catering exclusively for women, and that if such a complaint had been received, the respondent would then be required to satisfy the provisions of section 47 of the Act, namely that it was carrying out “a scheme or undertaking intended to ensure that women have equal opportunities with men seeking access to health and fitness services.”
As stated above, we find a genuine need for the services proffered. Insofar as necessary we would be prepared to find pursuant to section 92(6) that this is a situation where it is necessary to redress the effect of past discrimination, by effectively requiring women to attend gyms and fitness centres when men are about, even when there might be good reasons unrelated to discrimination, why they may not want to there. We also consider there are other relevant matters independently of that conclusion, namely the specialised services mentioned in the areas referred to above. In particular, we specifically find there is a special need for women to obtain discreet specialised exercises to reduce incontinence and deflation of the pelvic floor following child birth, to seek specialised treatment after undergoing surgery for specific female related conditions such as breast cancer or other types of surgery, and that there are specific ethnic and religious groups, particularly Muslim women, who are able to respect their cultural and religious laws in the presence of other women, but not in the presence of men. We also identify the need in the context and setting of women’s only gym and exercise facilities, for treatments and educational programs related specifically to women, including such topics as menopause, osteoporosis, the early detection of breast cancer, self esteem and specific exercises for women who are not fitness enthusiasts but seeking specialised assistance to overcome unhealthy dietary, exercise and lifestyle habits.
Previous Relevant Decisions
These applications are not without their precedent. The Fernwood Fitness Centres by whom Miss Radford was previously employed, was granted an exemption from certain provisions of the Act. In 1995 Fernwood Fitness was granted an exemption by the Tribunal from the provisions of ss30, 39 and 103, and a further exemption was granted on 27 April 2005.[4] However, neither exemption was in terms related to an activity or class of activity, contemplated by ss 92(1)(a) and (b), and neither contained any condition.
[4] SA Government Gazette 12/5/05 p1218.
Likewise Fernwood Victoria was also granted exemptions under the Equal Opportunity Act 1984 (Vic) for the purposes of providing “health and fitness” centres catering for women only and to permit those centres to be staffed by women only, in December 1994. Following that exemption in September 1995, an application was filed with the Equal Opportunity Board of Victoria, seeking revocation of the “blanket exemption”, the application being brought on the basis that the establishment of female only fitness centres discriminated against men, amounted to a form of segregation, that there was no objectively established need for women only fitness centres and that the original application was made purely for “marketing purposes”.
The factors the Board took into account in granting the exemption on 12 December 1994, were that the fitness centres provided a friendly, non-threatening environment for women, able to attend the centres without feeling self-conscious, embarrassed or intimidated.
After noting the general provisions of the Victorian Act (broadly equivalent to those in this State) clearly rendered certain kinds of discrimination unlawful, the Equal Opportunity Board of Victoria noted in Stevens v Fernwood Fitness Centres Pty Ltd:[5]
However, there will also be circumstances where, because a group or class of people may suffer disadvantage relative to others or because the position of a group or class of people may be inferior relative to others, the promotion of equality of opportunity between that group or class and other people will involve issues to redress that imbalance. The very way in which the second objective is expressed recognises that inequality of opportunity exists. .... In some circumstances, the promotion of equality of opportunity by redressing an imbalance may involve less favourable treatment of the group that is in the superior position, section 40(1) must be construed in the light of what we have said about the objectives of the Act. It permits the Board through exemptions, to deal with cases where the application of both objections of the Act may give conflicting results.
[5] (1996) EOC 4192 – 782 78, 804
Exercise of Discretion to grant exemptions
Having established that the circumstances might constitute discrimination, the question is whether an exemption is appropriate in the circumstances found to exist, in light of the overall objects and scheme of the Act. In considering the discretion to grant an exemption, the Tribunal takes into account, as it did in Stevens,[6] the reasonableness of the exemption sought, whether the nature and type of exemption bears any close resemblance to any of the exemptions already provided for in the legislation, whether the exemption is sought for reasons wholly unrelated to the objectives or scheme of the Act and whether otherwise an exemption would be appropriate.
[6] At 78, 805
In this instance we find each application to be reasonably based, that they are consistent and in keeping with exemptions expressly prescribed in the legislation, that the objectives in seeking them are closely related to the objectives and scheme of the Act, and the exemptions are appropriate for the purposes and the reasons advanced by the applicants. More particularly, the exemption sought in these two applications resemble other exemptions already provided for in the Act, namely “to avoid injury to the religious susceptibilities of the adherents of the Muslim faith (s50), relating to impairment from participation in a sporting activity (s81), for the benefit of persons having a particular impairment (s82), and the physical inaccessibility of premises (s84). Both applications are not inconsistent with s47 of the Act and are in keeping with s92(b) & (c) thereof.
Addressing the statutory criteria for exemption
Having made the findings and reached the conclusions referred to above, we return to the discharge of the obligations to be considered pursuant to s92(1)(a) – (c), inclusive. The first is that an exemption may only be made in relation to “a person or class of persons”. Although a ‘person’ includes a body corporate pursuant to s4 of the Acts Interpretation Act 1915 (SA), it does not include a registered business name. However, we are prepared to grant the exemption in the names of the natural persons who own the business trading name, that is to say Vicki Radford, Kristy Mott and Christine Pressler in the case of the Diamond Weightloss Centre matter, and in the case of the Leisure Co Pty Ltd we are prepared to grant the exemption in the name of that corporate body.
As to the second statutory consideration “an activity, or class of activity”, the relevant class of activity is “the provision of health and fitness centres” in each case. Insofar as the Tribunal is also required to consider whether an exemption should be granted unconditionally or upon conditions, in the case of Diamond Weightloss Centre such exemption is granted on the condition that each of the natural persons owning and operating the business continue to do so, such exemption is granted jointly – but not severally - to them. In each case the exemptions are granted for the maximum 3 years permissible under the Act (s92(2)(c).
The orders of the Tribunal therefore are respectively;
In relation to action number 488 of 2005, the application by Diamond Weightloss Centre:
1.An order giving leave to the applicant to change the name of the applicant to Vicki Radford, Kristy Mott and Christine Pressler, trading as “Diamond Weightloss Centre”.
2.Pursuant to s92 of the Equal Opportunity Act an exemption is granted jointly to Vicki Radford, Kristy Mott and Christine Pressler, trading as “Diamond Weightloss Centre”, from the provisions of sections 30 (relating to employment), 39 (providing goods and services) and 103 (relating to advertising) of the Equal Opportunity Act 1984 (SA), with respect to the provision of health and fitness centres.
3.Such exemptions to be in force for a period of three years from the date of their Gazettal.
4.There will be no order as to costs.
In the matter of Leisure Co Pty Ltd, Action Number 613 of 2006 there will be orders that:
1.Pursuant to s92 of the Equal Opportunity Act Leisure Co Pty Ltd trading as “Inshape Women”, is granted an exemption from the provisions of sections 30 (relating to employment), 39 (providing goods and services) and 103 (relating to advertising) of the Equal Opportunity Act 1984 (SA) with respect to the provision of health and fitness centres.
2.Such exemptions to be in force for a period of three years from the date of their Gazettal.
3.That there be no order as to costs.

We make a direction in each case that these exemptions, the class of persons to whom they are granted, and the activity or class of activity to which they are confined and the conditions under which they are so granted, be published in the South Australian Government Gazette in accordance with s92(8) of the Act.