Re Australian Municipal, Administrative, Clerical and Services Union
[2012] QCAT 40
•27 January 2012
| CITATION: | Re Australian Municipal, Administrative, Clerical and Services Union [2012] QCAT 40 |
| PARTIES: | Australian Municipal, Administrative, Clerical and Services Union |
| APPLICATION NUMBER: | ADL100-11 |
| MATTER TYPE: | Anti-discrimination matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | C Endicott, Senior Member |
| DELIVERED ON: | 27 January 2012 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | 1. Australian Municipal, Administrative, Clerical and Services Union is exempt from the application of s 20(1)(d) of the Anti-Discrimination Act 1991 in relation to the attribute referred to in section 7(f) of the Act in respect of redundancy entitlements and severance payments payable to employees employed by TattsBet Limited. 2. TattsBet Limited is exempt from the application of ss 15(1)(a), (b) and (f) of the Anti-Discrimination Act 1991 in relation to the attribute referred to in section 7(f) of the Act in respect of redundancy entitlements and severance payments payable to employees employed by TattsBet Limited. 3. The exemptions will be in operation for 5 years and will expire on 27 January 2017. |
| CATCHWORDS: | ANTI-DISCRIMINATION – exemption sought from operation of anti-discrimination laws – where long standing redundancy and severance arrangements – where previous exemption granted Anti-Discrimination Act 1991, s 113 Boeing Australia Holdings Pty Ltd & related entities [2003] QADT 21 AMACSU, QSU, FCUNQ and UNiTAB [2007] QADT 18 |
APPEARANCES and REPRESENTATION (if any):
The hearing took place on the papers in the absence of the applicant under section 32(2) of the Queensland Civil and Administrative Tribunal Act 2009.
REASONS FOR DECISION
Employees working for TattsBet Limited (and its predecessor company) have had since 1983 certain redundancy provisions in place in their employment which confer greater severance pay entitlements on older employees. Those provisions were the result of a negotiated agreement between the relevant unions covering the employees and the employer.
In 2005 the Queensland Industrial Relations Commission declined to include those provisions into the Industrial Agreement certified by the Commission due to the discriminatory nature of the provisions. The parties to the Industrial Agreement however wanted the redundancy provisions to apply to the employees of TattsBet Limited and agreed that an exemption application would be made under the Anti-Discrimination Act 1991.
On 9 July 2007 the former Anti-Discrimination Tribunal Queensland was satisfied that the redundancy provisions should be exempt from the operation of sections 15(1)(a), (b), (c) and (f) and section 20(1)(d) of the Anti-Discrimination Act 1991 to 8 July 2010.
That exemption has expired. The applicant is the relevant industrial union party to the proposed enterprise agreement with TattsBet Limited in which the redundancy and severance entitlements provisions will appear. The applicant seeks an exemption from QCAT from the operation of specified sections in the Anti-Discrimination Act 1991 for five years so that there are no impediments to the approval of the next industrial agreement in which the redundancy provisions are intended to be contained.
The exemption application is supported by the employer although the employer would prefer that the term of the proposed exemption is less than five years but rather expires on 28 February 2015 which will be for the duration of the new Collective Agreement. This difference is in reality immaterial and does not detract from the support given by the employer to the proposed exemption.
QCAT is required to provide a copy of the exemption application to the Anti-Discrimination Commissioner and to have regard to any submission made by the Commissioner.[1] The Commissioner has informed QCAT that the Commission does not oppose the exemption application.[2]
[1] Section 113(2) of the Anti-Discrimination Act 1991.
[2] Letter from the Anti-Discrimination Commissioner to QCAT dated 12 October 2011.
In considering this application, QCAT must first consider whether an exemption is necessary in order to achieve the outcome sought by the applicant. Conduct which may appear on initial examination to be in breach of the provisions of the Anti-Discrimination Act 1991 may be excused by specific exemptions or defences in the Act and in those cases it will not be found necessary that a general exemption under section 113 is granted.
The provisions about which the exemption is sought differentiate on the basis of age between employees whose employment is terminated by reason of redundancy. Under the provisions, an employee under 35 years of age will be paid 1.5 weeks pay for each year of service. An employee between 35 years and 50 years of age will be paid 1.5 weeks pay for each year of service when less than 35 years of age and 2.75 weeks pay for each year of service over 35 years of age. An employee between over 50 years of age will be paid 1.5 weeks pay for each year of service when less than 35 years of age, 2.75 weeks pay for each year of service between 35 years of age and 50 years of age and 3.75 weeks pay for each year of service over the age of 50 years.
The redundancy provisions are discriminatory as they grant greater severance pay entitlements to employees based on the attribute of age. The Anti-Discrimination Act 1991 prohibits discrimination on the basis of age.[3]
[3] Section 7 of the Anti-Discrimination Act 1991.
[10] Under the provisions proposed to be inserted into the Industrial Agreement, employees under 50 years of age are to be paid less in severance payments than employees who have worked the same periods of time but who are 50 years of age or older. Similarly employees under 35 years of age are to be paid less in severance payments than employees who have worked the same periods of time but who are aged over 35 years.
[11] The Anti-Discrimination Act 1991 provides that it is not unlawful to discriminate if an exemption in sections 104 to 113 applies. Section 104 of the Act provides a person may carry out some conduct to benefit the members of a group of people with an attribute for whose welfare the conduct was designed and in doing so, the conduct is not discriminatory if the purpose for carrying out the conduct is not inconsistent with the Anti-Discrimination Act 1991.
[12] If the differentiated redundancy entitlements were only to be granted to, say, employees aged 60 years or more, covering 10% of a working life, then it may be possible to identify a group of people with the attribute of age for whose welfare the provisions were designed. However, it is more difficult to expect that an exemption under section 104 would comfortably apply to the provisions in the present case where the benefit being sought is for employees between 35 and 65 years of age. That age period covers more than the majority of time in a working life. I will proceed on the basis that section 104 does not apply.
[13] None of the other specific exemptions in Part 5 of the Anti-Discrimination Act 1991 would apply to excuse the discriminatory effect of the redundancy provisions in this case.
[14] Section 113 of the Anti-Discrimination Act 1991 gives QCAT the power to grant a general exemption from the operation of specified provisions of the Act. Previous decisions made under this section have set out the types of matters to which the tribunal should have regard when considering an exemption application. Matters considered have been 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.[4]
[4] Boeing Australia Holdings Pty Ltd & related entities [2003] QADT 21.
[15] The former tribunal when considering the exemption application for the same redundancy provisions in 2007 found that it would be appropriate and reasonable to grant the exemption.[5] I agree with that conclusion.
[5] AMACSU, QSU, FCUNQ and UNiTAB [2007] QADT 18.
[16] The applicant referred to the comments made by a former President of the Anti-Discrimination Tribunal in an exemption case about provisions with some similar aspects to the present case: “In my view this proposal is a benign one, perhaps designed to create a modest incentive to employees to retire, but one which undoubtedly offers benefits to those employees who have reached the stage of their working life at which retirement becomes a serious consideration…”[6]
[6] Mount Isa Mines Ltd [2001] QADT 16.
[17] It is appropriate and reasonable that older employees have some additional financial provision made for them as employees over the age of 50 years and who are made redundant will find it more difficult to obtain employment than younger employees in the same position.[7]
[7] Allisey v Otis Building Technologies Pty Ltd (1998) VADT 4.
[18] I accept the submissions of the applicant that there are no other non discriminatory ways to achieve the object of making additional financial provision for older workers who are made redundant than in providing the differentiated redundancy entitlements in the proposed Industrial Agreement.
[19] The evidence establishes that the redundancy provisions have operated since 1983 without alteration. They are supported by the employer and by the union covering employees working for TattsBet Limited. It is reasonable to expect that employees, whether members of the union or not, have over the past 29 years become aware of the existence of differentiated redundancy provisions operating at their workplace.
[20] Specifically, the applicant has informed QCAT that it has communicated with its members about the collective bargaining process and that the redundancy provisions are one part of its claim against the employer. The union members have contributed to the claim and had endorsed the claim through a consultation process in 2011. There was disclosure by the union to its members about the need to ensure that the redundancy provisions complied with legislative requirements. This is manifested in the formal log of claims served on the employer and published to staff in March 2011. Additionally, the employer also provided updates to staff about the negotiations over collective bargaining agreement.[8]
[8] Email from the applicant dated 21 December 2011.
[21] I am satisfied that there is support for the exemption not just from the applicant but also from the employer and employees affected by the redundancy provisions.
[22] I am satisfied that an exemption in terms of the application should be granted for a period of 5 years.
[23] I order that the Australian Municipal, Administrative, Clerical and Services Union is exempt from the application of section 20(1)(d) of the Anti-Discrimination Act 1991 in relation to the attribute referred to in section 7(f) of the Act in respect of redundancy entitlements and severance payments payable to employees employed by TattsBet Limited.
[24] I also order that TattsBet Limited is exempt from the application of sections 15(1)(a), (b) and (f) of the Anti-Discrimination Act 1991 in relation to the attribute referred to in section 7(f) of the Act in respect of redundancy entitlements and severance payments payable to employees employed by TattsBet Limited.
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