Pink Army Handywomen
[2011] QCAT 395
•10 August 2011
| 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 |
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 female consumers and, perhaps, some male consumers who may not be comfortable with other males in their homes, even for the limited purpose of effecting repairs. I am not satisfied that this work can be categorised as an act to benefit a group of people with an attribute because it is not the “femaleness” that defines the group, but the sense of vulnerability.
Is an exemption appropriate?
Section 113 of the Act gives the tribunal power to grant an exemption from the operation of specified provisions of the Act. The Anti-Discrimination Tribunal has previously provided guidance for the exercise of the tribunal’s discretion[1]:
An exemption must be made in the context of all the relevant factors of the case, and ultimately should further the objects of the ADA to promote equality of opportunity for everyone by protecting them from unfair discrimination in certain areas (section 6), in the context of the international human rights instruments to which Australia is a party and which are referred to in the Preamble of ADA. The balance drawn must therefore be undertaken in the light of substantive equality and human rights, rather than for the sake of mere convenience or reputation.
…
The following matters may be relevant factors in considering an exemption application: whether the Queensland Anti-Discrimination Commission opposes or supports the exemption (Minister for Education and Commissioner for Equal Opportunity and Ors (1987) EOC 92-198); whether any other persons or bodies other than the applicants support the application (ibid); whether the exemption is in the community interest (ibid); the effect of not granting the exemption and whether members of the community would benefit from the exemption (ibid); whether there are other non-discriminatory ways of achieving the objects or purposes for which the exemption is sought (City of Brunswick; Re Application for exemption from provisions of Equal Opportunity Act (1992) EOC 92-450); and the scheme of exception provisions in the Act, to give further insight into its objects (In the matter of Jane Addis (1997) EOC 92-898). The objects of the ADA include Australia's international human rights obligations which are set out in the international instruments referred to with approval in the Preamble to ADA.
[1]Olympic Roads and Transport Authority (ORTA) exemption application [2000] QADT 10
Ms Jarrett and Ms Smith put forward a number of arguments in support of their application.
Firstly, they say that, if a female-only group of contractors is not available this may result in:
a)Vulnerable women not seeking help in their homes and this potentially leading to a loss of pride due to neglect in their home, causing emotional stress.
b)Vulnerable women hiring male contractors but suffering with the anxiety associated with having unfamiliar males in their home.
While Ms Jarrett and Ms Smith have provided the tribunal with a number of letters in support of their endeavour, there is no material to support the alleged demand from vulnerable women. That is not to say that the demand does not exist but the tribunal cannot simply assume that to be the case.
Ms Jarrett and Ms Smith also say that, while their proposal will discriminate against men, an exemption is unlikely to adversely affect a man’s ability to obtain employment as a handyperson.
[10] Ms Jarrett and Ms Smith refer to an analysis of the Yellow Pages which shows that 570 handyman businesses and 2083 constructions businesses currently exist in the Brisbane and Gold Coast area. Ms Jarrett and Ms Smith also say that, in the past, it has been difficult for women to gain employment in this area and it has been difficult for women to remain in employment in the predominantly male environment of building and construction.
[11] I accept these statements as a correct analysis of the market. It seems that Ms Jarrett and Ms Smith are asking the tribunal to infer that, because of the low participation rate of women in the industry, not one of the current 570 businesses can or will oblige a vulnerable woman by ensuring that a woman attends to the client’s home to do work. In the absence of evidence, I am not prepared to make that assumption.
[12] The second aspect of the argument by Ms Jarrett and Ms Smith is that, in the past, it has been difficult for women to gain employment in the construction/handyperson area due to public opinion and perceived gender suitability (or unsuitability). They also say that it has been difficult for women to remain in employment because of the predominantly male environment. In support of this argument, Ms Jarrett and Ms Smith have cited comments by the Minister for Women, Ms Struthers[2] and survey information showing that women represent only 1.6% of tradespeople employed in the Queensland construction industry.[3]
[2] Sunday Mail 12 June 2011.
[3] Section 6(1) of the Act states that one of the objects of the Act is to: “promote equality of opportunity for everyone by protecting them from unfair discrimination”. Section 105(1) of the Act states that: “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.”
[14] I accept that the proposal may promote equal opportunity for women in the construction/handyperson industry and that, although the proposal may not be discriminatory, it may not amount to unfair discrimination.
[15] Turing to the tests sets out in ORTA[4], I note:
a)Ms Jarrett and Ms Smith have provided the tribunal with numerous letters of support, including support from the Logan City Council.[5]
b)They have provided submissions that the proposed exemption is in the community interest in providing a service to vulnerable women and in providing employment opportunities for women in the construction/ handyperson industry.
c)Not granting the exemption may have an effect on the ability for vulnerable women to access these services and may restrict the opportunities for women in the construction/handyperson industry.
d)The proposed exemption does address the objects of the Act.
[4] Supra.
[5] Letter 20 June 2011.
[16] There are two aspects of the proposal that concern me. The first is, as I have mentioned, that there is no evidence that the needs of vulnerable women cannot be met in a non-discriminatory way. It is perfectly possible, for example, for Ms Jarrett and Ms Smith to advertise generally, employ whoever is best for the job and simply not send a male to a job if the client so requests. For that reason, I am not satisfied that an exemption is necessary to achieve the purpose of providing a service for vulnerable women.
[17] That example also leads me to my second concern in relation to the proposed exemption assisting the employment of women. As I have previously noted, an exemption should not be given simply for the sake of “mere convenience or reputation”.[6] There is a sense in the application from Ms Jarrett and Ms Smith that they would simply prefer not to employ men. I hope that my sense in that regard is misconceived.
[6] ORTA supra.
[18] The Queensland Anti-Discrimination Commission expressed reservations about the application.[7] Those reservations have largely been addressed by the further submissions from Ms Jarrett and Ms Smith.
[7] Letter 2 June 2011.
[19] Finally, there is precedent for the grant of an exemption such as the one sought here. Sex restrictions have been imposed for the employment of a podiatrist[8], a dance instructor[9] and female-only gym facilities[10]. The former tribunal also granted an exemption in the handyperson industry on the basis of age.[11] Unfortunately, in most cases, as the tribunal declined to give comprehensive reasons for its decisions, I can only take notice of the fact of the decision.
[8] Exemption application re: Dan Everson Podiatry [2003] QADT 5.
[9]Exemption application re: Belvitta Pty Ltd t/a Arthur Murray Dance Studios [2002] QADT 24.
[10] Exemption application re: Beach House Group Pty Ltd [2006] QADT 30.
[11] Exemption application re: Grey Army Gold Coast [2003] QADT 1.
[20] The decision to grant an exemption is a question of balance. But for the decisions referred to in [19] above, I would not be inclined to grant an exemption on the basis that it will promote the employment of women in the handyperson/construction industry. However, I am satisfied that there are sufficient grounds to grant an exemption for a limited term. This will enable Ms Jarrett and Ms Smith to compile the necessary evidence to justify a longer term exemption.
[21] Therefore, I grant an exemption from the operation of sections 14, 15 and 127 of the Act 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.
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