Isaac Regional Council - [2013] QCAT 734

CITATION:

Isaac Regional Council [2013] QCAT 734

PARTIES:

Isaac Regional Council
(Applicant)

APPLICATION NUMBER:

ADL033-13

MATTER TYPE:

Anti-discrimination matters

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

C Endicott, Senior Member

DELIVERED ON:

15 October 2013

DELIVERED AT:

Brisbane

ORDERS MADE:

An exemption is granted to the Isaac Regional Council from the operation of sections 13, 14, 15, 45, 46, 82, 83, 124 and 127 of the Anti-Discrimination Act 1991 in relation to the attribute referred to in section 7(b) of the Act from 15 October 2013 to 14 October 2016 in respect of the recruiting and employment of persons for positions with the Council.

CATCHWORDS:

ANTI-DISCRIMINATION – Where application for exemption from discrimination on the basis of relationship status in the area of employment and accommodation – where local authority having difficulty recruiting staff due to limited housing and high rentals

Anti-Discrimination Act 1991 ss 104, 113

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

The Isaac Regional Council employs a workforce to carry out work for the local authority over a wide geographical area. The local authority area covers more than 58,000 square kilometres and includes townships of Moranbah, Clermont, Dysart, Middlemount, Nebo, Glenden and St Lawrence.
The Council has constant difficulty in recruiting and retaining staff due to the sometimes isolated location of the work to be carried out and also due to the high cost of living in regional areas. According to the evidence from the Chief Executive Officer of the Council, Terry Dodds, the Council has staff turnover of 34.24%.
Since January 2013, the Council has advertised and filled 84 positions. A further 33 positions were advertised on more than one occasion with no successful candidate being found. Mr Dodds gave evidence that this failure to recruit staff for a significant number of positions arises primarily from the lack of suitable candidates and also due to applicants not proceeding to accept appointment to a vacant position due to the offered terms of employment not being suitable. The lack of availability of housing within the community is one of the key terms which have caused applicants to reject the Council’s offer of employment.
As at June 2013, Council had 156 vacancies which needed to be filled which comprised 28% of the Council workforce. The Council had come up with strategies to assist with the filling of the vacancies and in order to implement one of those strategies, Council applied to QCAT for an exemption under section 113 of the Anti-Discrimination Act 1991 (AD Act). The particular strategy that was involved in this application was to advertise for and to recruit candidates in a co-habiting relationship in preference to candidates who are not in a relationship with a person who is also seeking employment with the Council.
Section 113 of that Act provides discretionary power to QCAT to grant such an exemption. One precondition to the exercise of that power requires QCAT to give to the Anti-Discrimination Commissioner a copy of the exemption application and supporting material filed with that application. The Commissioner has informed QCAT that he has no objection to the proposed exemption being granted.
In essence, the Council is seeking an exemption so that it can legally discriminate against a person on the basis of their relationship status when two candidates apply for one position and when both candidates are adequately qualified to perform the role. The Council is seeking an exemption from certain specified provisions in the AD Act so that it can lawfully offer the vacant position to the candidate who is in a co-habiting relationship with another person who has applied for and is qualified to fill another vacancy with the Council.
Mr Dodds gave evidence that the Council’s job seeking endeavours have to compete with local mining roles which offer a much higher salaries than Council roles. Exit interviews have regularly revealed that departing employees have resigned because they can obtain more lucrative salaries from local mining employers.
Associated with that trend, Mr Dodds informed QCAT that there are housing shortages within the various communities within the local authority area which have resulted in a rise in the rental housing prices available in the communities. The average rent across the Council area is $750 per week for a standard three bedroom house.
The Council has its own housing stock. As of June 2013, that stock was comprised of 155 properties comprising of houses, townhouses and units within the townships over its 58,000 square kilometre area. The Council housing was either all occupied or allocated to newly vacant positions as a means to attract and fulfil contractual employment requirements.
In order to manage demand, the Council is currently in the process of refining its housing eligibility criteria. All management positions and some critical specialist positions are contractually supplied with housing. Due to the limited number of available houses, there is a backlog of positions waiting to be filled until housing is obtained for these positions. In addition there are 34 staff members on a waitlist for Council housing.
Council considers that the ability to provide accommodation to staff is an important factor when candidates are offered work, especially in some townships where there is a particularly restricted rental market. Mr Dodds gave evidence that 2012 saw the peak within market rental pricing with housing fluctuating between $1,000 and $3,000 per week. At the same time the average salaries that the Council could offer ranged from $44,968 per annum for a general labourer to $84,852 per annum for a high skilled professional.
Council informed the tribunal that potential employees do not accept positions offered by Council due to the cost of market rentals as they cannot afford the cost of rent and living in the local authority area on the salaries offered by the Council. This fact has highlighted the need for Council to offer housing as part of its employment arrangements and the need to develop strategies to use to an optimum extent the housing resources currently available to Council.
One strategy is to encourage couples to apply for vacant positions so that only one property need be provided for two positions. A result of such a strategy would be to discriminate on the basis of relationship status against persons who are single or whose partner is not seeking or not qualified for employment with Council.
Mr Dodds submitted that the purpose of the exemption under the AD Act is to attract employment candidates and to retain staff by the Council. It was submitted that an exemption would enable the Council to provide more subsidised housing options to employees and as a result to obtain more employees to fill the vacancies currently in positions that are needed to service the needs of the communities. By providing one property to two employees, there will be fewer employees needing to access the available rental properties on the market and which in turn will reduce market demand for housing and which will ultimately reduce pressure on market rental prices.
Evidence was given by Mr Dodds that the Council has run a variety of local based recruitment campaigns which has worked to source local applicants who already have housing. However Mr Dodds gave evidence that there are insufficient candidates within the local region who have the necessary skills to fill all the vacant positions within Council. Existing advertising campaigns have not been effective in sourcing candidates with the full range of necessary skills from outside the local region because of the lack of available housing.
The Council has implemented an equal employment opportunity policy involving its recruitment process and the proposed strategy will not comply with that policy unless an exemption, referred to in the policy, is obtained from QCAT.
The purpose in providing exemptions under section 113 of the AD Act is to allow people the protection and security of a shield against liability for unlawful discrimination in circumstances where their proposed actions would constitute a prima facie case of unlawful discrimination.[1] In considering whether to grant an exemption from the operation of the Act, it is necessary to consider whether an exemption is actually necessary as the proposed employment arrangements might be excused by some specific exemptions or defences in the AD Act.
[1] J & D Richards Developments Pty Ltd [2005] QADT 13.
One such exemption is contained in section 104 of the Act where a defence is provided to a complaint of unlawful discrimination if the actions complained of have been done to further the welfare of a group of persons and if the actions are not inconsistent with the Act. However, there is no specific target group that can be identified in the proposal put forward by the Council. It would be difficult to interpret section 104 as providing a specific exemption in this case.
In the absence of any other specific exemption or defence in the AD Act that would be available to the Council to permit targeted advertisements and recruitment of couples, I am satisfied that the exemption application must be considered under section 113 of the AD Act.
I must have regard to certain matters that would be relevant to the exercise of discretion when considering an exemption application. These matters include whether it would be appropriate and reasonable to grant an exemption, whether there are any non-discriminatory ways of achieving the purposes for which the exemption is sought and whether there is support for the exemption being granted.[2]
[2] Boeing Australia Holdings Pty Ltd & related entities [2003] QADT 21.
It was submitted that granting the exemption sought by the Council would be in the community interest. With increased employment numbers in Council, there will be more jobs overall to service the population, better retention and less turn over of staff in the region, and better utilisation of the limited housing resources both within Council and the region generally.
The Council submitted this policy, if permitted, would ensure greater functionality in meeting the service needs of the local community. An example was given of current inability to utilise a community centre in Moranbah for functions and meetings as no staff are available to manage large functions. Another example was the closure of the Dysart Civil Centre for a period of time due to staff not being sourced to operate the centre.
The Council submitted that it has had to rely on labour hire services to deliver part of its essential programs and the limited staff numbers has had the effect of requiring some staff to travel greater distances than they should to deliver services in regional townships as local staff cannot be housed in those townships. The Council submitted that the greatest impact the lack of staff has had on its community was the periodic closure of a number of refuse sites resulting in a backlog of refuse disposal in some townships.
I accept the evidence of Council that the continuing employment vacancies are very much related to the lack of available housing. I find that the impact of those vacancies is a reduction in the delivery of services to the community. It is in the community interest that reasonable and proportionate strategies are implemented to fill vacancies in the Council’s employment. I am satisfied that the evidence establishes that one such strategy is that proposed in this exemption application. It is appropriate and reasonable to grant the exemption sought by Council for a limited period of time.
I accept the submissions made by the Council that non discriminatory efforts will continue to be made to recruit and employ single suitably qualified candidates but I also accept that it is appropriate in the circumstances of this case to augment those recruitment efforts in a manner that discriminates on the basis of relationship status. I accept that reliance entirely on non-discriminatory ways of achieving higher take up of vacant positions is unlikely to achieve that goal.
I am satisfied that an exemption should be granted to the Isaac Regional Council from the operation of sections 13, 14, 15, 45, 46, 82, 83, 124 and 127 of the Anti-Discrimination Act 1991 in relation to the attribute referred to in section 7(b) of the Act from 15 October 2013 to 14 October 2016 in respect of the recruiting and employment of persons for positions with the Council.