Re: Children by Choice Association Inc - [2018] QIRC 153

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:	Re: Children by Choice Association Inc. [2018] QIRC 153
PARTIES:	Children by Choice Association Inc. (Applicant)
CASE NO:	AD/2018/91
PROCEEDING:	Application for exemption from certain provisions
DELIVERED ON:	21 December 2018
HEARING DATE:	On the papers
MEMBER:	O'Connor VP
ORDER:	*1. Children by Choice Association Inc. is exempt from the operations of sections 14, 15, 15A, 124, and 127 of the Anti- Discrimination Act 1991* in relation to attribute in s 7(a). 2. The exemption applies only to acts or omissions reasonably necessary to recruit sufficient females into positions, including Counsellors, Manager, Communications Coordinator, Campaign Coordinator, and Education and Training Coordinator. 3. The exemption shall apply to the applicant from the date of the application, 2 November 2018 for a period not exceeding five years.**
CATCHWORDS:	ANTI-DISCRIMINATION – EXEMPTION – DISCRIMINATION ON THE BASIS OF SEX – Exemption from operation of provisions prohibiting discrimination –

services, accommodation, advertising, work – sex and age – organization providing sexual assault counselling to women and pregnant women.

LEGISLATION:

CASES:

Anti-Discrimination Act 1991 (Qld) s 7(a), s 14, s 15, s 15A, s 105, s 124, s 127

City of Brunswick: re. Application for Exemption from provisions of Equal Opportunity Act (1992) EOC 92-450

Downer EDI Mining [2013] QCAT 99

Exemption application re: Boeing Australia Holdings Pty Ltd and Ors [2003] QADT 21

Exemption Application re: Mt Isa Mines Ltd
[2001] QADT 16

Exemption application re: Palmpoint Pty Ltd
[2006] QADT 12 (7 April 2006)

Minister for Education and Commissioner for Equal Opportunity and Ors (1987) EOC 92- 198

Stevens v Fernwood Fitness Centres Pty Ltd
(1996) EOC 92-782

United Synergies Ltd [2015] QCAT 89

APPEARANCES:

On the papers

Reasons for Decision

On 2 November 2018 the applicant in this matter, Children by Choice Association Inc.,1 made an application for an exemption from certain provisions of the Anti-Discrimination Act 1991 (Qld). Section 113 of that Act allows this Commission to exempt an applicant from complying with sections of the Act. The applicant describes itself, and the services that it provides, as follows:

1 This application was made by "Children by Choice" as opposed to "Children by Choice Association Incorporated". I have used the full name of the applicant to give certainty to the application. The application is amended under s 174B(e) of the Anti-Discrimination Act 1991 (Qld).

1.Children by Choice offers counselling services both face to face and over the telephone. This service is to assist women and pregnant women with decision making while experiencing unplanned pregnancy.

2.Children by Choice assists women and pregnant women with counselling and financial assistance when experiencing times of hardship.

The exemption sought by the applicant relates to ss 14, 15, 15A, 124 and 127 of the Act and is limited to the attribute in s 7(a) "sex" for a period of five years – the maximum period allowable under the Act.2

Section 14 "Discrimination in the pre-work area" relevantly outlines that a person must not discriminate in relation to the arrangements…

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: [2018] QIRC 153
Decision Date: 21 December 2018

CaseChat Overview and Summary

The Children by Choice Association Inc. sought exemption from certain provisions of the Anti-Discrimination Act 1991. The applicant, a non-profit organisation, argued that to achieve its mission, it needed to engage in sex-based recruitment practices. The Queensland Civil and Administrative Tribunal (QCAT) was tasked with determining whether the exemption was justified.

The legal issues before QCAT involved interpreting the scope of the exemption provisions under the Anti-Discrimination Act 1991 and assessing whether the applicant's recruitment practices were reasonably necessary to achieve its charitable purpose. The applicant argued that the exemption was necessary to ensure that sufficient females were recruited to fill specific roles within the organisation, which was crucial to its mission of promoting women's reproductive rights and choices.

QCAT found that the exemption was justified based on the applicant's charitable purpose and the necessity of recruiting females to fill specific roles. The Tribunal concluded that the applicant's recruitment practices were reasonably necessary to achieve its mission and did not constitute unjustifiable discrimination. The exemption was granted for a period not exceeding five years from the date of the application.

The Tribunal ordered that Children by Choice Association Inc. be exempt from the operations of sections 14, 15, 15A, 124, and 127 of the Anti-Discrimination Act 1991 in relation to the attribute of sex. The exemption applied only to acts or omissions reasonably necessary to recruit sufficient females into positions, including Counsellors, Manager, Communications Coordinator, Campaign Coordinator, and Education and Training Coordinator. The exemption was effective from 2 November 2018 for a period not exceeding five years.

Orders

Orders of the court

1. Children by Choice Association Inc. is exempt from the operations of sections 14, 15, 15A, 124, and 127 of the Anti- Discrimination Act 1991 in relation to attribute in s 7(a).

2. The exemption applies only to acts or omissions reasonably necessary to recruit sufficient females into positions, including Counsellors, Manager, Communications Coordinator, Campaign Coordinator, and Education and Training Coordinator.

3. The exemption shall apply to the applicant from the date of the application, 2 November 2018 for a period not exceeding five years.

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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