Pink Army Handywomen - [2011] QCAT 395

CITATION:

Pink Army Handywomen [2011] QCAT 395

PARTIES:

Pink Army Handywomen

APPLICATION NUMBER:

ADL038-11

MATTER TYPE:

Anti-discrimination matters

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

P Stilgoe, Member

DELIVERED ON:

10 August 2011

DELIVERED AT:

Brisbane

ORDERS MADE:

Pink Army Handywomen are exempt from the operation of sections 14, 15 and 127 of the Anti-Discrimination Act 1991 in relation to the attribute in s 7(a) for a period of two years from the date of this decision in respect of the activities of providing a handyperson service to vulnerable women. The exemption applies only to acts or omissions reasonably necessary to ensure employment of sufficient female handypersons or workers to address the objective of providing a handyperson service to vulnerable women.

CATCHWORDS :

ANTI-DISCRIMINATION – EXEMPTION – where applicants operate a female-only handyperson service – where service directed to vulnerable women – whether application to allow advertising for female-only employees – whether exemption appropriate

Anti-Discrimination Act 1991, ss 7(a), 14, 15, 127

Olympic Roads and Transport Authority (ORTA) exemption application [2000] QADT 10
Exemption application re: Dan Everson Podiatry [2003] QADT 5
Exemption application re: Belvitta Pty Ltd t/a Arthur Murray Dance Studios [2002] QADT 24
Exemption application re: Beach House Group Pty Ltd [2006] QADT 30
Exemption application re: Grey Army Gold Coast [2003] QADT 1

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers in accordance with section 32 of the Queensland Civil and Administrative Tribunal Act 2009.

REASONS FOR DECISION

Ms Jarrett and Ms Smith trade under the registered business name “Pink Army Handywomen”. They offer “all female” handyperson services and want to provide that service to people in the community who do not wish to have male workers in their home. Ms Jarrett and Ms Smith want to be able to advertise for female contractors and workers so that they can expand their business.
Ms Jarrett and Ms Smith are concerned that advertising for female workers only may offend s 7(a) of the Anti-Discrimination Act 1991 – discrimination on the basis of sex. Although Ms Jarrett and Ms Smith consider that they may have a defence under s 104 of the Act, they have applied for an exemption from the operation of ss 14, 15 and 127 of the Act.

Is protection available under s104 of the Act?

Section 104 of the Act states that:
a person may do an act to benefit the members of a group of people with an attribute for whose welfare the act was designed if the purpose of the act is not inconsistent with this Act.
It is not clear from the application which attribute is addressed by the proposal. Ms Jarrett and Ms Smith say that they propose to offer their services to “vulnerable women and women who have been victims of domestic violence, as well as other members of the community.” I read that as meaning that the business model will target some, but not all, sections of potential…

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: [2011] QCAT 395
Decision Date: 10 August 2011

CaseChat Overview and Summary

Pink Army Handywomen sought a declaration that their female-only handyperson service did not contravene the Anti-Discrimination Act 1991 and an exemption from certain sections of the Act. The Queensland Civil and Administrative Tribunal (QCAT) was tasked with determining whether the applicants’ activities constituted discrimination and, if so, whether an exemption was appropriate. The applicants argued that their service, aimed at vulnerable women, required female handypersons for reasons of safety and comfort, and advertising for female-only employees was necessary to achieve this goal.

The primary legal issue was whether the applicants' activities, specifically advertising for female-only handypersons, amounted to discrimination under the Act and, if so, whether an exemption should be granted. The applicants contended that their service was tailored to the specific needs of vulnerable women and that employing female handypersons was necessary for the effective delivery of their service. The tribunal considered whether the exemption criteria were met under section 22 of the Act, focusing on whether the discrimination was reasonably necessary to achieve a legitimate aim.

In reaching its decision, the tribunal determined that the applicants' service was indeed discriminatory under the Act, as it excluded men from employment opportunities. However, the tribunal found that the discrimination was reasonably necessary to achieve the legitimate aim of providing a service to vulnerable women that met their specific needs. The tribunal was satisfied that the applicants had demonstrated a clear need for female handypersons to ensure the safety and comfort of their clients, and that advertising for female-only employees was an essential part of achieving this objective. Consequently, the tribunal granted an exemption from sections 14, 15, and 127 of the Act for a period of two years, applying only to acts or omissions reasonably necessary to ensure employment of sufficient female handypersons.

The tribunal's final order was that Pink Army Handywomen are exempt from the operation of sections 14, 15, and 127 of the Anti-Discrimination Act 1991 for a period of two years, in respect of the activities of providing a handyperson service to vulnerable women. This exemption applies only to acts or omissions reasonably necessary to ensure employment of sufficient female handypersons or workers to address the objective of providing a handyperson service to vulnerable women.

Orders

Orders of the court

Pink Army Handywomen are exempt from the operation of sections 14, 15 and 127 of the Anti-Discrimination Act 1991 in relation to the attribute in s 7(a) for a period of two years from the date of this decision in respect of the activities of providing a handyperson service to vulnerable women. The exemption applies only to acts or omissions reasonably necessary to ensure employment of sufficient female handypersons or workers to address the objective of providing a handyperson service to vulnerable women.

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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