Re: Community Solutions Group Ltd - [2023] QIRC 333

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:	Re: Community Solutions Group Ltd [2023] QIRC 333
PARTY:	Community Solutions Group Ltd (Applicant)
CASE NO:	AD/2023/112
PROCEEDING:	Application for exemption
DELIVERED ON:	22 November 2023
MEMBER: HEARD AT:	McLennan IC On the papers
ORDER:	1. Community Solutions Group Ltd is exempt from the operations of ss 14, 15, 15A, 124 and 127 of the Anti-Discrimination Act 1991 (Qld), in relation to the attribute in s 7(a) of the Anti-Discrimination Act 1991 (Qld). 2. The exemption applies only in respect of actions or omissions which are reasonably necessary in relation to the advertising, recruitment and employment practices. 3. The exemption shall apply to Community Solutions Group Ltd for a period of 5 years from the date of this decision.
CATCHWORDS:	EQUAL OPPORTUNITY AND DISCRIMINATION – exemptions – sex discrimination – application to grant exemption under s 113 of the Anti-Discrimination Act 1991 (Qld) – where the applicant seeks an exemption in order for it to recruit women to fill approximately 20 placements as full-time trainees, undertaking Certificate III in Civil Construction to work in the Civil Construction Industry – whether exemption is necessary – whether exemption is reasonable and appropriate – where exemption would provide certainty – exemption granted HUMAN RIGHTS – whether Queensland Industrial Relations Commission acts in an administrative capacity, within the meaning of the Human Rights Act 2019 (Qld) – whether granting the exemption affects a human right within the meaning of the Human Rights Act 2019 (Qld) – whether decision to grant exemption is compatible with human rights within the meaning of the Human Rights Act 2019 (Qld) – application granted
LEGISLATION:	Anti-Discrimination Act 1991 (Qld) s 7, s 14, s 15, s 15A, s 113, s 124, s 127 Human Rights Act 2019 (Qld) s 13, s 15, s 58, s 104, s 105
CASES:	City of Brunswick: re. Application for Exemption from provisions of Equal Opportunity Act (1992) EOC 92-450 Exemption application re: Boeing Australia Holdings Pty Ltd and Ors [2003] QADT 21 Exemption Application re: Mt Isa Mines Ltd [2001] QADT 16 Minister for Aboriginal Affairs v Peko‑Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 Minister for Education and Commissioner for Equal Opportunity and Ors (1987) EOC 92-198 Re: Ipswich City Council [2020] QIRC 194; (2020) 305 IR 289 Re: Protech Personnel Pty Ltd [2019] QIRC 175 Re: Protech Personnel Pty Ltd [2022] QIRC 029 Stevens v Fernwood Fitness Centres Pty Ltd (1996) EOC 92-782 United Synergies Ltd [2015] QCAT 89

Reasons for Decision

Introduction

On 16 October 2023, Community Solutions Group Ltd ('CSG'; 'the Applicant') filed an application for an exemption from the operation of specified provisions of the Anti-Discrimination Act 1991 (Qld) ('the AD Act').
CSG was selected to partner with RoadTek, within the Department of Transport and Main Roads ('TMR'), to deliver a Women in Construction ('WIC') program for 2024.
The WIC program was developed to address the underrepresentation of women in the construction workforce. CSG submitted that:
According to the Construction…

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: [2023] QIRC 333
Decision Date: 22 November 2023

CaseChat Overview and Summary

The matter of Community Solutions Group Ltd (CSG) versus the Queensland Industrial Relations Commission involves an application for an exemption from specific provisions of the Anti-Discrimination Act 1991 (Qld). CSG seeks an exemption to enable the recruitment of women for approximately 20 full-time trainee positions in the Civil Construction Industry. The central legal issues revolve around whether such an exemption is necessary, reasonable, and appropriate under section 113 of the Anti-Discrimination Act 1991 (Qld), and whether it aligns with the Human Rights Act 2019 (Qld).

The court evaluated the necessity and reasonableness of the exemption, considering the low representation of women in traditionally male-dominated industries. The court referenced previous decisions regarding similar exemptions for the Women in Construction Program, acknowledging the community interest in promoting gender diversity. The court found that CSG's proposed conduct, which is discriminatory, can only be lawful if an exemption is granted. It was noted that no non-discriminatory alternatives were identified by CSG to achieve the same objectives. The application was also supported by various stakeholders advocating for gender diversity in the construction workforce.

In granting the exemption, the court emphasised the importance of ensuring gender diversity and inclusiveness in workplaces, consistent with community expectations. The exemption is limited to actions reasonably necessary for advertising, recruitment, and employment practices. The exemption was granted for a period of five years, aligning with the duration of previous exemptions for similar programs. This decision provides certainty for CSG in implementing its recruitment program while promoting gender diversity in the Civil Construction Industry.

Orders

Orders of the court

1. Community Solutions Group Ltd is exempt from the operations of ss 14, 15, 15A, 124 and 127 of the Anti-Discrimination Act 1991 (Qld), in relation to the attribute in s 7(a) of the Anti-Discrimination Act 1991 (Qld).

2. The exemption applies only in respect of actions or omissions which are reasonably necessary in relation to the advertising, recruitment and employment practices.

3. The exemption shall apply to Community Solutions Group Ltd for a period of 5 years from the date of this decision.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The question for my determination is whether, pursuant to s 113(1) of the AD Act, I should grant CSG's exemption application for five years.Previous relevant Commission decisions The WIC program has been run for seven consecutive years since 2016 and was previously delivered by Protech Personnel Pty Ltd ('Protech'). During that time, Protech's exemption applications for the WIC program had been granted by this Commission.[3] [3] Re: Protech Personnel Pty Ltd [2019] QIRC 175; Re: Protech Personnel Pty Ltd [2022] QIRC 029. In those decisions, his Honours made orders pursuant to s 113(1) of the AD Act exempting Protech from the operation of ss 14, 15, 15A and 127 of the AD Act, in relation to the attribute in s 7(a) of the AD Act, only in respect of the actions or omissions which were reasonably necessary in relation to the advertising, recruitment and employment practices. As is the case here too, the Commission's earlier determination of Protech's renewal application[4] required a consideration of the AD Act and the relevant provisions of the Human Rights Act 2019 (Qld) ('the HR Act').[4] Re: Protech Personnel Pty Ltd [2022] QIRC 029. In this decision to grant CSG's exemption application, I follow his Honours' reasoning in the previous decisions of this Commission.[5][5] Ibid; Re: Protech Personnel Pty Ltd [2019] QIRC 175. Consideration Vice-President O'Connor helpfully set out the relevant considerations in the earlier Re: Protech Personnel Pty Ltd [6] decision of this Commission:Section 113 of the ADA confers a broad and unfettered discretion upon the Tribunal to grant an exemption from the operation of a specific provision of the Act. However, over time various considerations have been identified to assist the Tribunal in exercising its discretion to ensure that exemptions are only granted in appropriate circumstances. Accordingly, the following matters may be considered:· Whether the exemption is necessary;· Whether there are any non-discriminatory ways of achieving the objects or purposes for which the exemption is sought;· Whether the exemption is in the community interest;· Whether any other persons or bodies other than the applicant support the application;· Whether it is reasonable and appropriate to grant the exemption; and· The effect of not granting the exemption.[7][6] [2019] QIRC 175. [7] Re: Protech Personnel Pty Ltd [2019] QIRC 175, citing United Synergies Ltd [2015] QCAT 89; Exemption application re: Boeing Australia Holdings Pty Ltd and Ors [2003] QADT 21; Exemption Application re: Mt Isa Mines Ltd [2001] QADT 16; City of Brunswick: re. Application for Exemption from provisions of Equal Opportunity Act (1992) EOC 92-450 ; 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. I now turn to deal with some of the factors in exercising the discretion under s 113 AD Act. Vice President O'Connor's explanation of the relevant considerations for the WIC program in Re: Protech Personnel Pty Ltd, [8] are also directly applicable here.[8] [2019] QIRC 175.

Ratio Decidendi

Legal Principle Established

In this decision to grant CSG's exemption application, I follow his Honours' reasoning in the previous decisions of this Commission.[5][5] Ibid; Re: Protech Personnel Pty Ltd [2019] QIRC 175. Consideration Vice-President O'Connor helpfully set out the relevant considerations in the earlier Re: Protech Personnel Pty Ltd [6] decision of this Commission:Section 113 of the ADA confers a broad and unfettered discretion upon the Tribunal to grant an exemption from the operation of a specific provision of the Act. However, over time various considerations have been identified to assist the Tribunal in exercising its discretion to ensure that exemptions are only granted in appropriate circumstances. Accordingly, the following matters may be considered:· Whether the exemption is necessary;· Whether there are any non-discriminatory ways of achieving the objects or purposes for which the exemption is sought;· Whether the exemption is in the community interest;· Whether any other persons or bodies other than the applicant support the application;· Whether it is reasonable and appropriate to grant the exemption; and· The effect of not granting the exemption.[7][6] [2019] QIRC 175. [7] Re: Protech Personnel Pty Ltd [2019] QIRC 175, citing United Synergies Ltd [2015] QCAT 89; Exemption application re: Boeing Australia Holdings Pty Ltd and Ors [2003] QADT 21; Exemption Application re: Mt Isa Mines Ltd [2001] QADT 16; City of Brunswick: re. Application for Exemption from provisions of Equal Opportunity Act (1992) EOC 92-450 ; 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. I now turn to deal with some of the factors in exercising the discretion under s 113 AD Act. Vice President O'Connor's explanation of the relevant considerations for the WIC program in Re: Protech Personnel Pty Ltd, [8] are also directly applicable here.[8] [2019] QIRC 175. The conduct in which CSG proposes to engage is discriminatory. Therefore, for the proposed conduct to be lawful it will be necessary for CSG to obtain an exemption. Are there any non-discriminatory ways of achieving the objects or purposes for which the exemption is sought? The Applicant has not identified any non-discriminatory ways of achieving the object or purpose for which the application is sought. In the statement filed 25 October 2023, in support of the exemption application, the Applicant cited the Construction Skills Queensland (CSQ) Female Construction Workforce 2023 Snapshot Report, in which "the percentage of women in trades and the industry in Queensland is 12.4% and only 4.3% in construction trades." As Vice President O'Connor concluded at that time:Clearly having such low levels of female representation in the construction workforce is unsatisfactory and inconsistent with current community expectations for gender diversity and inclusiveness in workplaces. It is therefore in the community interest for programs to exist to help facilitate and encourage women to apply for jobs in industries which have been and continue to be traditionally male dominated.[9][9] Ibid [14]. Are there any other persons or bodies other than the Applicant that support the application?