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Re: Ipswich City Council

Re: Ipswich City Council

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Case Copied 17 November 2020 40 min read

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QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:	Re: Ipswich City Council [2020] QIRC 194
PARTIES:	Ipswich City Council (Applicant)
CASE NO:	AD/2020/62
PROCEEDING:	Application
DELIVERED ON:	17 November 2020
MEMBER: HEARD AT:	Merrell DP On the papers
ORDERS:	1. The Ipswich City Council *is exempt from the operation of s 14, s 15, s 124 and s 127 of the Anti-Discrimination Act 1991* in relation to the attribute in s 7(a)** of the Anti-Discrimination Act1991. 2. The exemption applies only in respect of actions or omissions in relation to the advertising and recruitment of Waste Truck Drivers to be employed by the Ipswich City Council for a training program to obtain a Heavy Rigid Licence. 3. The exemption shall apply to the Ipswich City Council for a period of three years from the date of these orders.
CATCHWORDS:	EQUAL OPPORTUNITY AND -DISCRIMINATION - exemptions - sex discrimination - application to grant exemption under s 113(1) of the Anti‑Discrimination Act 1991 so the Applicant can recruit only female waste truck drivers - exercise of discretion HUMAN RIGHTS - whether Queensland Industrial Relations Commission acts in an administrative capacity, within the meaning of the Human Rights Act 2019, when deciding to grant exemption - whether granting of the exemption sought affects a human right within the meaning of s 15(5) of the Human Rights Act 2019 - whether decision to grant exemption is compatible with human rights within the meaning of the Human Rights Act 2019 - purposive interpretation of s 113(1) of the Anti-Discrimination Act 1991 in a way that is compatible with human rights - application granted
LEGISLATION:	Acts Interpretation Act 1954, s 14A Anti-Discrimination Act 1991, s 7(a), s 14, s 15, s 104, s 105, s 113, s 124, s 127 and s 174B Charter of Human Rights and Responsibilities Act 2006 (Vic), s 4, s 8, s 32 and s 38 Equal Opportunity Act 1995 (Vic), s 83 Human Rights Act 2019, s 5, s 7, s 8, s 9, s 13, s 15, s 48 and s 58 Industrial Relations Act 1999, ch 6 and s 334 Industrial Relations Act 2016, s 429, s 447 and s 544
CASES:	Anglo Coal (Moranbah North management) Pty Ltd & Anor [2018] QIRC 052 Commonwealth v Grunseit [1943] HCA 47; (1943) 67 CLR 58 Exemption application re Boeing Australia Holdings Pty Ltd and Ors [2003] QADT 21 Exemption application re: Palmpoint Pty Ltd [2006] QADT 12 Lifestyle Communities Ltd (No 3) [2009] VCAT 1869 PJB v Melbourne Health and Anor (Patrick's case') [2011] VSC 327; (2011) 39 VR 373 R v A2 [2019] HCA 35; (2019) 93 ALJR 1106 Re: Anglo Coal (Grosvenor Management) Pty Ltd & Ors [2016] QCAT 160 Re Cram; Ex parte Newcastle Wallsend Coal Co Pty Ltd [1987] HCA 29; (1987) 163 CLR 140 Re: Kalwun Development Corporation Ltd [2019] QIRC 141 Re Kracke and Mental Health Review Board [2009] VCAT 646; (2009) 29…

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: [2020] QIRC 194
Decision Date: 17 November 2020

CaseChat Overview and Summary

The Ipswich City Council applied to the Queensland Civil and Administrative Tribunal for an exemption under the Anti-Discrimination Act 1991 (Qld) to enable it to recruit only female waste truck drivers. The dispute was heard in the Tribunal. The central legal issues were whether the Queensland Industrial Relations Commission, when deciding to grant such an exemption, acts in an administrative capacity under the Human Rights Act 2019 (Qld) and if so, whether granting the exemption affects a human right and whether it is compatible with human rights. The Tribunal had to consider a purposive interpretation of section 113(1) of the Anti-Discrimination Act 1991 in a way that is compatible with human rights. The Tribunal concluded that granting the exemption would meet the purpose of the relevant section of the Act, and it was satisfied that the exemption should be granted. The Tribunal made an order exempting the Ipswich City Council from the operation of certain sections of the Anti-Discrimination Act 1991 in relation to actions or omissions in the advertising and recruitment of waste truck drivers to be employed by the Ipswich City Council for a training program to obtain a Heavy Rigid Licence, for a period of three years.

Orders

Orders of the court

1. The Ipswich City Council is exempt from the operation of s 14, s 15, s 124 and s 127 of the Anti-Discrimination Act 1991 in relation to the attribute in s 7(a) of the Anti-Discrimination Act 1991.

2. The exemption applies only in respect of actions or omissions in relation to the advertising and recruitment of Waste Truck Drivers to be employed by the Ipswich City Council for a training program to obtain a Heavy Rigid Licence.

3. The exemption shall apply to the Ipswich City Council for a period of three years from the date of these orders.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

For the reasons I have given earlier, for the exemption sought to meet the purpose of s 113(1) of the Act, the exemption should be granted to the Council from the operation of not only s 14 and s 15 of the Act, but also s 124 and s 127 of the Act.Conclusion For the reasons I have given, I am satisfied that I should grant the exemption sought.Orders I make the following orders:1. The Ipswich City Council is exempt from the operation of s 14, s 15, s 124 and s 127 of the Anti-Discrimination Act 1991 in relation to the attribute in s 7(a) of the Anti-Discrimination Act1991.2. The exemption applies only in respect of actions or omissions in relation to the advertising and recruitment of Waste Truck Drivers to be employed by the Ipswich City Council for a training program to obtain a Heavy Rigid Licence.3. The exemption shall apply to the Ipswich City Council for a period of three years from the date of these orders.

Ratio Decidendi

Legal Principle Established

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