Re A P Eagers Limited
[2012] QCAT 567
•26 October 2012
| CITATION: | Re A P Eagers Limited [2012] QCAT 567 |
| PARTIES: | A P Eagers (Applicant) |
| APPLICATION NUMBER: | ADL034-12 |
| MATTER TYPE: | Anti-discrimination matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | S Gardiner, Member |
| DELIVERED ON: | 26 October 2012 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The application for an exemption under the Anti-Discrimination Act1991 is dismissed. |
| CATCHWORDS: | ANTI-DISCRIMINATION – automotive industry – traditionally male dominated – exemption from liability to advertise for women employees in sales and service areas ––where a specific exemption and defence available as equal opportunity measure – where general exemption granted not considered necessary Anti-Discrimination Act 1991, reasons(6)(a) and (b), ss 7,14,15, 25, 105, 113, 127 |
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
A P Eagers Limited is a large automotive group that employs many sales consultants. The automotive industry is traditionally male dominated and Eagers records that 81% of their employees are men.
Eagers would like to change that and particularly are very keen to employ more women in sales and service areas. About 50% of Eagers’ sales customers and an increasing proportion of their service customers are women who often prefer to discuss their automotive needs with another woman (particularly when they visit the dealership on their own). Eagers also find that female customers will return to their various dealerships if they know they can deal with a woman. Essentially, employing more women in these customer areas would be good for business.
Eagers has attempted to increase the diversity of their staff with various strategies such as encouraging administrative staff (where the ratio is much more even) to apply for sales and service vacancies and offering full training into these roles; in external advertisements stressing that Eagers is an “equal opportunity employer“ and also stating that women are encouraged to apply; having diversity and equal opportunity policies and objectives in place; setting up a female employee network and meetings and developing criteria to support female employees; and finally consulting outside agencies such as the Equal Opportunity for Women in the Workplace Agency.
So far these strategies has not had the desired effect of increasing the numbers of female employees and Eagers now seeks an exemption under section 113 of the Anti-Discrimination Act 1991 from operation of the Act in specific areas. Eagers says an exemption is sought to allow the company to advertise in gender specific terms for more female employees as sales consultants and in the service advisor roles within the various automotive service departments.
On its face, advertising targeted at women only would come within the provisions of the Anti-Discrimination Act 1991 relating to the personal attribute of sex[1] and in the pre-work, work and provision of goods and services[2] under that Act. Eagers is seeking an exemption from those parts of the Act.
[1] Anti-Discrimination Act 1991, s 7(a).
[2] Anti-Discrimination Act 1991, ss 14, 15 and 127.
QCAT is required to provide a copy of the application to the Anti-Discrimination Commissioner and to have regard to any submission made by the Commissioner. A copy of the application was sent to the Commissioner on 3 September 2012. The Commissioner has informed QCAT that he has no objection to an exemption being granted to Eagers and that and the basis of the application and the material filed by Eagers, the purpose of the proposed exemption is consistent with Eagers' obligations under the Equal Opportunity for Women in the Workplace Act 1999.
In considering this application, I must first examine whether an exemption is necessary[3] as conduct first appearing to breach the provisions of the Anti-Discrimination Act 1991 may be excused by specific exemptions or defences in the Act and it may not be necessary to grant a general exemption under section 113.
[3]Exemption application Re Boeing Australia Holdings Pty Ltd & related entities [2003] QADT 21.
First, section 25 of the Act allows genuine occupational requirements to be imposed in work or work related areas of activities. Work includes both full time and part time employment[4]. If a complaint were to be made against Eagers in the area of work, section 25 may be relied upon as a defence of that complaint.
[4] Anti-Discrimination Act 1991, Schedule – Dictionary
Guidance as to the meaning of “genuine occupational requirement” has been provided by the High Court of Australia[5] explaining that determining if a requirement is an inherent requirement involves consideration as to whether the position would essentially be the same in the absence of the requirement.
[5] Qantas Airways v Christie (1998) HCA 18 at 36.
Here Eagers’ staff is of both genders and both can fulfil the roles in the sales and service areas. Increased numbers of female employees would be ideal but not necessary.
I am not satisfied that section 25 would be available to Eagers as a defence to complaints of discrimination based on the attribute of sex in the work area.
Next, section 105 of the Anti-Discrimination Act 1991 provides 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 the Anti-Discrimination Act 1991. This temporary defence only applies until the purpose of equal opportunity has been achieved. This section, dealing with equal opportunity measures, is an example of positive discrimination.
Advertising by Eagers specifically targeting women would not be unlawful if Eagers could establish (as an exemption to any claim of discrimination made against them) that the advertising would promote equal opportunity for women in the automotive industry.
The Act recognises that everyone should be equal before and under the law and have the right to equal protection and benefit of the law without discrimination but that the protection of fragile freedoms is best effected by legislation that reflects the aspirations and needs of contemporary society.[6]
[6] Anti-Discrimination Act 1991, Parliaments reasons for enacting: reasons (6)(a) and (b).
I am satisfied that the aspirations and needs of our society do require recognition that striving to keep a gender balance in those industries which have traditionally been male dominated and which remain so, particularly where the users of the services provided are seeking such services to be provided by female staff.
I am not satisfied that it is necessary to grant a specific exemption to Eagers in this situation because the provisions of s 105 would seem to be able to be satisfied on the evidence supporting this application. It is not the role of this Tribunal to make a decision as to whether an exemption under s 105 applies, but I am satisfied that this section could reasonably be argued should a complaint be made of any of Eagers' advertising.
It may be of assistance in this regard to note in any advertisements that are targeting female staff that “Eagers considers this advertisement to be an equal opportunity measure under s105 of the Anti-Discrimination Act 1991” to indicate the Company’s intentions to raise this exemption should a complaint be made.
For the reasons given above, the application is dismissed.