GRS Networking Pty Ltd (t/a Sportsworld)
[2013] QCAT 563
•16 October 2013
| CITATION: | GRS Networking Pty Ltd (t/a Sportsworld) [2013] QCAT 563 |
| PARTIES: | GRS Networking Pty Ltd (t/a Sportsworld) |
| APPLICATION NUMBER: | ADL021-13 |
| MATTER TYPE: | Anti-Discrimination matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | R M Clifford, Member |
| DELIVERED ON: | 16 October 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. An exemption is granted, pursuant to section 113 of the Anti-Discrimination Act 1991, to GRS Networking P/L (trading as Sportsworld) from the operation of sections 46 and 127 of the Act in relation to: a. the attribute of ‘sex’, referred to in section 7 (a) of the Act; b. in respect to providing a ‘women’s only’ training area within its fitness centre in Cairns, Queensland; c. from 16 October 2013 until 15 October 2018. |
| CATCHWORDS: | Anti-Discrimination - exemption - women’s only area - fitness club - necessity - single operation - discretion Anti-Discrimination Act 1991 Exemption application re: Boeing Australia Holdings Pty Ltd & related entities [2003] QADT 21. |
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
Background
GRS Networking Pty Ltd is a company that runs a fitness centre in Cairns and trades as Sportsworld. GRS has applied for an exemption from the Anti-Discrimination Act 1991 so that it can offer a ‘women’s only’ training area within the fitness centre. GRS submit this would lessen any feelings of embarrassment and self-consciousness and thus make women more likely to engage in regular gym sessions without stress and provide an opportunity to achieve their health and fitness goals.
GRS states the main gym would continue to be open to both men and women members.
GRS states that men and women trainers will continue to be employed.
GRS provide a plan of the premises that indicate the ‘women’s only’ area would occupy around 20% of the floor space of the overall fitness centre.
GRS provided four supporting letters.
Rebecca Roberts a personal trainer and user of the gym opines the women’s only area would be a great asset and assist women in feeling comfortable in a gym setting and in maintaining a fit and healthy lifestyle.
Deanne Baker a member of Sportsworld Fitness Centre for 2 years submits one of the main reasons she joined was because there was a designated ‘ladies only’ weights and training area. Ms Baker noted however that a number of men used the area and submits that the women’s only area should be maintained. Ms Baker states no other facility in Cairns offers women their own weight training area.
Steve McGill, also a member, submits he has no issue with the proposed ladies only area and appreciates that some ladies would like privacy when exercising. Mr McGill submits the ladies only area would have no effect on his ability to work out, as all the equipment in the ladies area would be duplicated in the main gym.
K B Foster, member, submits he has absolutely no problem with this concept and notes all the equipment in the proposed ladies area is already available in the main gym area.
The Anti-Discrimination Commissioner by letter dated 18 March 2013 was unable to comment on the application as there was insufficient detail at that time. The Commissioner suggested the applicant be referred to a decision of the former Tribunal to assist the application.
After receiving further information from GRS the Anti-Discrimination Commissioner was invited to provide further comments. By letter dated 1 October 2013 the Commissioner advised he had no further submissions to make.
Legislation
The Anti-Discrimination Act makes it unlawful to discriminate against a person based on certain personal attributes in specific areas of public life, including discrimination based on sex in the area of employment and in the provision of services.
The Act also allows certain circumstances/actions to be excused or excluded from its operation through the application of specific defences and or specific and general legislated exemptions.
Responses to a complaint lodged with the Anti-Discrimination Commission may raise a claim that an exemption applies. If such a complaint is ultimately referred to the Tribunal for decision the Tribunal will be required to decide whether the exemption has been established.
Outside the complaint/referral process a person or an organisation may apply to the Tribunal under section 113 of the Anti-Discrimination Act for the grant of an exemption from the Act. The grant of an exemption is discretionary.[1] The period of exemption must not be more than 5 years.[2]
[1]Anti-Discrimination Act 1991 s 113(1).
[2]Ibid s 113(6).
The QCAT Rules also provide that an application for exemption, amongst other things, must state the provision of the Act from which an exemption is sought.[3]
[3]Queensland Civil and Administrative Tribunal Rules 2009 s 101(1)(b)(i).
Necessity
In considering such an application the Tribunal must first consider whether an exemption is necessary. If the Tribunal is satisfied the exemption is necessary it then considers whether the exemption is appropriate and reasonable, whether there are other non-discriminatory ways of achieving the purpose, whether the exemption is in the community interest and whether other persons or organisations support the application.[4]
[4]Exemption application re: Boeing Australia Holdings Pty Ltd & related entities [2003] QADT 21.
Whether the exemption is necessary will firstly rest on whether without an exemption the proposed actions of the GRS would offend the anti-discrimination law.
GRS seeks to provide a specific training area for women only in its fitness centre. The rest of the fitness centre would be open to both men and women. Therefore GRS is seeking to provide women a special service that it is not offering to men who attend its premises.
Discrimination is prohibited on the basis of sex[5] in certain areas under the law. The law provides that a person who supplies goods or services must not discriminate against another person by failing to supply the goods or service, or in the terms or in the way in which the goods and services are supplied.[6]
[5] AD Act op.cit; s 7(a).
[6] AD Act op.cit; s 46 (1) (a)(b)(c).
The Tribunal is satisfied that unless an exemption applies the proposal as outlined by GRS could give rise to a complaint by a man that GRS is directly discriminating against men in the provision of supplying fitness services by not offering a men’s only training area in the fitness centre.
There are already specific exemptions in the Anti-Discrimination Act in relation to supply of goods and services. These include exemptions from actions that may be discriminatory if the organisation, who is seeking to rely on that exemption, is a not for profit association for certain purposes.[7]
[7] AD Act op.cit; ss 46(2)(a) and (b), 47 -51.
GRS is an incorporated company trading as a fitness centre. Its proposal and its general circumstances do not fall within any of the specific exemptions provided in regard to the provision of goods and services.
The Anti-Discrimination Act also provides for general exemptions from potential discrimination. Specifically, section 105 - entitled Equal Opportunity Measures, provides:
(1) a person may do an act to promote equal opportunity for a group of people with an attribute if the purpose of the act is not inconsistent with this Act.
(2) Subsection (1) applies only until the purpose of equal opportunity has been achieved.
GRS have submitted that the provision of a women’s only training area will give women an opportunity to reach their health and fitness goals without feelings of embarrassment and self-consciousness.
Other than this statement GRS provides little information about the number, type, availability and gender make-up of training centres around the Cairns area.
Deanne Baker’s letter of support states ‘no other facility in Cairns offers women their own weight training area and I believe it is the reason a number of ladies join and continue to train at Sportsworld’.
One of the purposes of the Act is to promote equality of opportunity for everyone by protecting them from unfair discrimination in certain areas of activity.[8] The Tribunal accepts, given the increase in social/community participation and health benefits that can result from regular exercise, it is important that men and women are given equal opportunity to engage in fitness regimes. The Tribunal generally accepts that equality of opportunity may be improved by providing some services to women in a different manner to men.
[8] AD Act op.cit; s 6.
So, whilst the Tribunal is satisfied that there is an arguable case that section 105 could apply to the GRS proposal, on the current facts the Tribunal can offer little comfort to the GRS as to any level of certainty that its proposal could meet the section 105 requirements. The Tribunal is of the view this would require a more detailed examination of facts and argument that are not before the Tribunal.
GRS is a small company operating a single fitness centre in Cairns. It does not have available to it a large personnel or legal department to assist it making out such complex legal argument should a complaint arise. Although any exemption cannot completely eliminate the risk of complaint being made, an exemption granted under section 113 should be easier to defend, in so far as GRS operate completely within the exemption, than relying on a more complex section 105 argument. In the circumstances the Tribunal is satisfied there is a necessity to consider whether an exemption under section 113 of the Act should be ganted.
Reasonableness and other considerations
GRS propose to provide a small area of its fitness centre for women only so that they can undertake training in private. All other sections of the fitness centre will remain open to both men and women. All equipment available in the women’s only area will be replicated in the open training area.
GRS submit it has found no other strategy to put in place to eliminate the uncomfortable feeling that some females find when exercising in the company of males.
The Tribunal received letters of support for the proposal from men and women members of the fitness centre.
The Commissioner provided no specific submissions but referred to a decision of the former Tribunal in which an exemption was granted to a fitness centre to provide women only areas.[9]
[9] Exemption application re: Beach House Group P/L [2006] QADT 30 (19 July 2006).
The application for exemption relates to a company running one fitness centre in Cairns. It is a mixed sex fitness centre.
The Tribunal accepts the proposition from GRS that some women are self conscious and embarrassed training in the presence of men. Ms Baker states one of the main reasons for joining was because of the ‘ladies only’ weights and training area.
It is generally accepted that men participate in sports and exercise more regularly than women. The proposal could generally further the objects of the act by encouraging more women to participate in regular exercise regimes.
In the circumstances the Tribunal is satisfied that the proposal is reasonable and appropriate. Members of the centre also support the proposal, the exemption is in keeping with other exemptions previously granted to fitness centres and there appears no other manner in which the GRS could achieve the purpose.
Accordingly in the exercise of its discretion, the Tribunal grants an exemption to GRS to provide a ‘women’s only’ training area within its fitness centre in Cairns. Specifically the exemption relates to the attribute of sex [section 7(a)] in the area of goods and services [section 46] and although not specifically requested in relation to advertising of the service [section 127].
The exemption is granted for a period of 5 years.
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