Re Application for Exemption Under S 135 of the Equal Opportunity Act 1984; Ex Parte Diana Williams and Fernwood Women's Health Club - [2006] WASAT 180

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: HUMAN RIGHTS

ACT: EQUAL OPPORTUNITY ACT 1984 (WA)

CITATION: RE APPLICATION FOR EXEMPTION UNDER S 135 OF THE EQUAL OPPORTUNITY ACT 1984; EX PARTE DIANA WILLIAMS AND FERNWOOD WOMEN'S HEALTH CLUB [2006] WASAT 180

MEMBER: JUDGE J ECKERT (DEPUTY PRESIDENT)

HEARD: DETERMINED ON THE PAPERS

DELIVERED : 4 JULY 2006

FILE NO/S: EOA 130 of 2005

EX PARTE
DIANA WILLIAMS AND FERNWOOD WOMEN'S HEALTH CLUB
Applicant

Catchwords:

Exemption application Discrimination on the grounds of sex Discrimination in the area of employment Goods and services Health Clubs Welfare and education of persons Dominant or substantial purpose Measure to achieve equality

Legislation:

AntiDiscrimination Act 1991 (Qld)
Equal Opportunity Act 1984 (WA), s 3, s 4, s 8, s 11, s 11(2)(a), s 12, s 12(2)(a), s 13, s 13(1), s 19, s 19(c), s 19(e), s 20, s 27, s 30, s 31, s 31(b), s 35, s 135, s 135(1), s 135(3), s 135(6), s 136, Pt II, Div 5
Equal Opportunity Act 1995 (Vic)
Equal Opportunity Regulations 1986 (WA), reg 24

State Administrative Tribunal Act 2004 (WA), s 47, s 60(2)

Result:

The application for exemption is dismissed as being unnecessary

Category: B

Representation:

Counsel:

Applicant: Self-represented

Solicitors:

Applicant: Self-represented

Case(s) referred to in decision(s):

Beach House Fitness Centre Pty Ltd [1998] VADT 9
Exemption application re Fernwood Women's Health Club Pty Ltd [2003] QADT 27
Fernwood Womens Health Clubs Pty Ltd (Anti‑Discrimination) [2005] VCAT 246
Stevens v Fernwood Fitness Centres Pty Ltd (1996) EOC 92‑782
Womens Health East Inc [2000] VCAT 1859

Case(s) also cited:

Nil

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

In these proceedings the applicant, Ms Diana Williams on behalf of Fernwood Women's Health Clubs, sought an order from the Tribunal exempting Fernwood from the operation of some of the provisions of the Equal Opportunity Act 1984 (WA), which make it unlawful for a person to discriminate against another person based on their gender.
The exemption was sought by the applicant to allow Fernwood to:
1.open and operate health clubs in Western Australia which would provide services to women only;
2.advertise to employ only women in its health clubs in Western Australia; and
3.employ only women for the operation of its health clubs in Western Australia.
The Tribunal dismissed the application for the exemption on the basis that the conduct for which the applicant sought exemption constituted a measure to achieve equality under s 31(b) of the Equal Opportunity Act 1984. The conduct was therefore within a statutory exception to the operation of Part II of the Act and it was unnecessary for the applicant to seek, and the Tribunal to grant, an exemption under s 135 from the operation of the provisions of the Equal Opportunity Act 1984.

Applicant

On 22 June 2005, Ms Diana Williams applied to the Tribunal seeking an exemption from the effects of the operation of s 8, s 11, s 12, s 13, s 19 and s 20 of the Equal Opportunity Act 1984 (WA) (the Act) for Fernwood Women's Health Clubs (Fernwood). Ms Williams made the application in her capacity as Chief Executive of Fernwood. Accordingly in these reasons for decision a reference to the applicant is a reference to Ms Williams and Fernwood as appropriate.

Statutory Provisions

Section 8 of the Act sets out what constitutes sex discrimination for the purposes of the Act. As s 8 is a descriptive or definition section, and not a section proscribing unlawful conduct, it is unnecessary to seek an exemption from it.
Section 11 provides that it is unlawful for an employer to discriminate against a person on the grounds of the person's sex, marital status or pregnancy in the area of employment. Section 11(2)(a) makes it unlawful for an employer to discriminate against an employee on the ground of the employee's sex, marital status or pregnancy in the terms or conditions of employment that the employer affords the employee.
Section 12 of the Act provides that it is unlawful for a person to discriminate against another person on the grounds of the person's "sex, marital status or pregnancy" in matters regarding the engagement of commission agents under terms and conditions on which they are engaged. Section 12(2)(a) makes it unlawful for a person to discriminate against a commission agent in the terms or conditions that the person affords the commission agent as a commission agent. Section 3 of the Act defines commission agent as a person who does work for another person as the agent of that person and who is remunerated, whether in whole or in part, by commission.
Section 13(1) of the Act provides that:
"(1)It is unlawful for a principal to discriminate against a contract worker on the ground of the contract worker's sex, marital status or pregnancy —
(a)in the terms or conditions on which the principal allows the contract worker to work;
(b)by not allowing the contract worker to work or continue to work;…"
Section 4 defines a contract worker to mean "a person who does work for another person pursuant to a contract between the employer of the first‑mentioned person and that other person".
Section 19(a) of the Act makes it unlawful for a person to discriminate against another person on the ground of the aggrieved person's sex, marital status or pregnancy by refusing to allow that other person access to or use of any place or facility. Section 19(c) makes it unlawful to refuse to allow that person the use of any facilities that the public or a section of the public is entitled to use whether for payment or not. Section 19(e) also makes it unlawful to require a person to leave or cease to use facilities on the ground of the person's sex, marital status or pregnancy.
Section 20 of the Act provides:
"20. Goods, services and facilities
It is unlawful for a person who, whether for payment or not, provides goods or services, or makes facilities available, to discriminate against another person on the ground of the other person’s sex, marital status or pregnancy —
(a)by refusing to provide the other person with those goods or services or to make those facilities available to the other person;
(b)in the terms or conditions on which the first‑mentioned person provides the other person with those goods or services or makes those facilities available to the other person; or
(c)in the manner in which the first‑mentioned person provides the other person with those goods or services or makes those facilities available to the other person."
Section 3 defines services to include services relating to recreation, amongst other things.
For the purposes of this application, the exemption is sought only from those parts of each section which make it unlawful to discriminate against a person on the ground of the person's sex.
The applicant is therefore seeking an exemption so as to allow it to discriminate on the grounds of a person's sex in the areas of employment, access to places and facilities and in the provision of goods and services.
Section 135 of the Act provides that a person may apply to the Tribunal for an exemption and that an exemption may be granted subject to terms and conditions as specified in the order of the Tribunal and for a maximum term of five years. Section 135(3) requires that the application for the exemption be advertised in a newspaper in a form and manner as the Tribunal may direct.

Evidence before the Tribunal

The application for exemption was supported by a submission filed by the applicant on 11 October 2005, and a subsequent submission filed on 1 March 2006 at the request of the Tribunal.
In accordance with s 135(3) of the Act, notice of the application was given by way of an advertisement in The West Australian newspaper on 27 August 2005. The advertisement advised that any person wanting to be joined as a party to the proceedings should contact the Tribunal. No response to the advertisement was received.
Under reg 24 of the Equal Opportunity Regulations 1986 (WA), the Commissioner for Equal Opportunity is automatically a party to any application for exemption and remains a party unless she lodges an affidavit setting out the reasons why she does not wish to be a party to the application.
The Tribunal received an affidavit dated 18 August 2005, from the Commissioner for Equal Opportunity. In the affidavit the Commissioner advises that she does not wish to be a party to the application for exemption as "on its face it seems to fall within the objects of the Act: the elimination of all forms of discrimination". However, the Commissioner advised that she has not formed a view as to whether the application is necessary or whether the Tribunal should grant it.
I am satisfied that any person who may have an interest in this application has had the opportunity to be joined as a party to the proceedings and that no party has come forward to oppose the application.
I have therefore considered this application on the papers provided to the Tribunal by the applicant. The Tribunal has the power to consider applications based on the documents provided to it under s 60(2) of the State Administrative Tribunal Act 2004 (WA).

Applicant's submission

The submission provided by the applicant in support of the application was based primarily on Fernwood's experience in operating a number of health clubs tailored specifically and exclusively for women, in other States of Australia. Fernwood has been granted an exemption in Victoria, New South Wales, Queensland, South Australia and Tasmania. It has been operating as a women only health club in some of those States for more than a decade.
The submissions include the following arguments in support of granting the exemption:
1)Fernwood in Western Australia will specialise in meeting the needs of women, including providing programs specific to women such as pelvic floor exercises to reduce incontinence after childbirth, as it can be embarrassing for women with this condition to exercise in a mixed gender environment;
2)many of Fernwood's members in the other States of Australia have undergone surgery for particular female related conditions such as breast cancer. These women need special care, understanding and programming, including gentle exercise in order to aid their recovery;
3)Fernwood will hold regular educational seminars on women's topics including menopause, the effects of osteoporosis, the early detection of breast cancer and self‑esteem and personal improvement;
4)there are a number of mixed health clubs for women to attend if that is their choice. The applicant contends that there are generally between three and six mixed health clubs for women to attend in the vicinity of other Fernwood clubs already operating in other States of Australia;
5)Fernwood has a policy to cater especially for women who are not fitness enthusiasts and who therefore tend to be unfit and have unhealthy dietary and exercise habits. Fernwood offers gentle, controlled exercises instead of the vigorous programs offered at many other health clubs and fitness centres;
6)in Fernwood's experience there a number of women who are unable to attend a mixed health club for religious reasons, or because they have been abused when they were young or during a relationship. Many of these women are helped to not only improve their fitness levels but also their general life coping skills; and
7)Fernwood will run a variety of programs to enhance self‑esteem, self‑confidence and general health for all women regardless of their age and fitness. The applicant also proposes to offer programs for disadvantaged women in local communities to help provide them with tools that can be used in their everyday lives including establishing a healthy diet, stress management, goal setting, managing finances and developing a plan to return to work or study.

Is the conduct within an exception?

If the conduct the subject of the application falls within an exception provision in the Act, there is no need to further consider the application, as there would be no unlawful conduct to exempt (see Stevens v Fernwood Fitness Centres Pty Ltd (1996) EOC 92‑782 and Womens Health East Inc [2000] VCAT 1859).
The applicant made no submissions in this regard and the Tribunal sought further submissions from the applicant, specifically with respect to s 31 of the Act; however, unfortunately the submission filed by the applicant did not specifically address that provision.
The sections of the Act from which exemption is sought are found in Part II of the Act. Division 5 of Part II provides for specific exceptions to Part II of the Act. These exceptions include where it is a genuine occupational qualification to be a person of a particular gender (s 27); where the provision of services are of such a nature that they can only be provided to members of one gender (s 30); or where measures are taken for the purpose and intention of achieving equality (s 31). Section 35 provides that it is not unlawful to exclude persons from one sex from participation in any competitive sporting activity in which the strength, stamina or physique of competitors is relevant.
The relevant exception provisions are s 30 and s 31. Section 30 excuses conduct which is of such a nature that it can only be provided to members of one sex. The applicant made no submissions on this and I am unable to draw any conclusion as to whether the operation of a woman's health club is conduct of such a limited nature.
Section 31 provides:
"Measures intended to achieve equality
Nothing in Division 2 or 3 renders it unlawful to do an act a purpose of which is —
…
(b)to afford persons of a particular sex … access to facilities, services or opportunities to meet their special needs in relation to employment, education, training or welfare."
In light of the applicant's submissions, it appears to me that s 31(b) applies to the opening and operating of a health club for women only in that "a purpose" of it is to meet the "special needs" in relation to the "education" and "welfare" of women. Fernwood submits that it will provide educational seminars on topics specifically related to women. Fernwood also intends to cater for the special needs of women who have, for example, been ill or abused and accordingly Fernwood would be providing a facility for the welfare of that group of women with special needs.
The purpose referred to in the preamble to s 31 must be a "dominant" or "substantial" purpose. Parliament would not have legislated to make discrimination unlawful, yet allow a very broad loophole excepting otherwise discriminatory conduct, so long as the person undertaking that conduct could display some sort of purpose for it that fits broadly within s 31(b). It need not be the only purpose of the conduct that it be for the welfare or education of one sex; but it needs to be a substantial purpose, relied on and implemented. In essence, the purpose of the conduct still needs to be within the long title to the Act and the heading to s 31 – essentially positive discrimination; conduct the effect of which is to promote or achieve equality.
There is no indication from the applicant that it intends to limit its membership to women with special needs, being the needs described by the applicant in its submissions and it is most unlikely that it would have that intention. But to fit within s 31 not all of the applicant's members need to have special needs relating to education or welfare. Section 31 requires that the applicant needs to have a purpose of providing facilities and services that meet those special needs where and when required. So long as that is available the applicant's conduct might come within s 31. Membership would be open to all women. In my view in these proceedings, that does not reduce the importance of the role of the purpose being to assist the education and welfare of women with special needs so as to achieve equality. That purpose remains a dominant purpose; it does not need to be the sole purpose of the proposed conduct.
The otherwise discriminatory conduct does not need to be for the welfare of all women; it is sufficient that it can be provided for a reasonable or significant number of women. I am satisfied that the purpose of the proposed conduct being for the welfare and education of women will be a dominant purpose of the operations of the applicant in Western Australia. It is not a fanciful or unintended purpose. Based on its operations in other States, the applicant will in my view implement it.
In my view the exception provisions point to a broad scheme in the Act to exempt conduct for sound social or practical reasons or to redress disadvantage in support of the objects of the Act, and therefore if conduct comes within the exception it is appropriate that an exemption not be granted.
The Tribunal should not exercise its discretion unnecessarily (see Beach House Fitness Centre Pty Ltd [1998] VADT 9 at pages 2 and 4). If conduct for which an exemption is sought is clearly not covered by the Act, whether because it does not constitute discrimination, does not otherwise fall within an area about which the Act makes provision, or if it comes within one of the statutory exceptions then there is no need for the Tribunal to exempt the conduct. The exemption provision in s 135 of the Act is the "end of the line" for the authorisation of otherwise discriminatory and unlawful conduct.
Based on the applicant's submissions, I conclude that the conduct for which exemption is sought, is conduct that falls within s 31(b) of the Act, in that a dominant or substantial purpose of it is to provide services to meet special needs in relation to the education and welfare of women. As such it seeks to achieve equality.
This conclusion is bolstered by the analysis of Fernwood's operations set out in the decisions on exemption applications made by Fernwood in other States.
For example, on page 2 of the second Queensland decision (Exemption application re Fernwood Women's Health Club Pty Ltd [2003] QADT 27) the Tribunal states:
" … the exemption is consistent with the second objective of the Act, which is, to promote equality of opportunity between people of different status. Fernwood centres provide an opportunity to those who feel unable to attend a mixed fitness centre to participate in exercise programmes and by so doing to improve their health. We also note that a number of the statutory exemptions relate to health matters. It was clear from the material before us that part of the programmes available at Fernwood centres are directed to women's health issues. It is, in our view, consistent with the general scheme of the statutory exemptions in the Act and with the public interest to exempt these fitness centres which focus on these health issues."
In the 2005 VCAT decision, Fernwood Womens Health Clubs Pty Ltd (Anti‑Discrimination) [2005] VCAT 246, regarding Fernwood's exemption application the Deputy President says at [12]:
"It does promote that objective of the Act that looks at the recognition of everyone's right to equality of opportunity. What Fernwood is attempting to do is to put those women who would not otherwise exercise, and would not attend a mixed men and women gym facility, into the same position as if they had been able to attend such a facility. It is also providing special classes to give women both knowledge and perhaps experience to enable them to cope with various physical conditions."
It is in the public interest to find that this conduct fits within the exception provision, both expressly and within its spirit. It is irrelevant that the applicant carries on a commercial business; the public interest means that Fernwood should not be precluded from offering its services merely because it is a business. The public interest here overrides any commercial advantage (if there is one) to Fernwood providing and staffing a women only health club, because Fernwood will be addressing a disadvantage for women who are otherwise unable to exercise in what they perceive to be safe or comfortable surroundings and which are not intimidating. They will be able to come to an environment that accepts them uncritically and participate in educational programs that advise them on their specific needs. I agree that:
"Meeting the legitimate and demonstrated needs of an important sector of the community that has in the past suffered from a lack of equality and that still has legitimate needs with regard to safety and protection from intrusion or unnecessary exposure would in the Tribunal's opinion serve an overriding public interest that would justify the conduct being taken out of the statutory prohibitions on discrimination." (Beach House Fitness Centre Pty Ltd page 4)

I am therefore of the view that the applicant does not require an exemption under the Act to open and operate women's health clubs in Western Australia and to employ only women in those health clubs. The application with respect to an exemption from the operation of s 11, s 12, s 13, s 19 and s 20 of the Act is therefore dismissed.

Decision

An exemption from the effect of the operation of provisions of the Act is not required as the proposed conduct falls within a specific exception (s 31(b)) of the Act.

Orders

The application for exemption is dismissed as being unnecessary because the proposed conduct is not unlawful under the Act.

I certify that this and the preceding [42] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
JUDGE J ECKERT, DEPUTY PRESIDENT