Re: Protech Personnel Pty Ltd - [2022] QIRC 29

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:	Re: Protech Personnel Pty Ltd [2022] QIRC 029
PARTY:	Protech Personnel Pty Ltd (Applicant)
CASE NO.:	AD/2021/57
PROCEEDING:	Application
DELIVERED ON:	7 February 2022
MEMBER: HEARD AT:	Merrell DP On the papers
ORDER:	The exemption granted to Protech Personnel Pty Ltd pursuant to s 113(1) of the Anti‑Discrimination Act 1991, by the first two orders made in Re: Protech Personnel Pty Ltd [2019] QIRC 175 dated 21 November 2019 is, pursuant to s 113(7) of the Anti‑Discrimination Act 1991, renewed for a period of three years from the date of this order.
CATCHWORDS:	EQUAL OPPORTUNITY AND DISCRIMINATION - exemptions - sex discrimination - applicant a labour hire provider to the construction industry - in 2019 the applicant was granted an exemption from the Anti‑Discrimination Act 1991 in respect of the recruitment of females - application to renew the exemption previously granted - exercise of discretion pursuant to s 113(7) of the Anti‑Discrimination Act 1991 HUMAN RIGHTS - whether Queensland Industrial Relations Commission acts in an administrative capacity, within the meaning of the Human Rights Act 2019, when deciding to renew an exemption previously granted - whether renewing the exemption affects a human right within the meaning of the Human Rights Act 2019 - whether renewal exemption is compatible with human rights within the meaning of the Human Rights Act 2019 - application to renew exemption granted for three years
LEGISLATION:	Anti-Discrimination Act 1991, s 7, s 14, s 15, s 15A, s 113, and s 127 Human Rights Act 2019, s 13, s 15, and s 58
CASES:	Minister for Aboriginal Affairs v Peko‑Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 Re: Ipswich City Council [2020] QIRC 194; (2020) 305 IR 289 Re: Protech Personnel Pty Ltd [2019] QIRC 175

Reasons for Decision

Introduction

Protech Personnel Pty Ltd ('Protech') is a labour hire provider to the construction industry.
This decision assumes familiarity with the decision of Vice President O'Connor, dated 21 November 2019, in Re: Protech Personnel Pty Ltd.[1]
[1] [2019] QIRC 175 ('Re: Protech Personnel Pty Ltd').
In that decision, his Honour, upon application made by Protech, made orders pursuant to s 113(1) of the Anti-Discrimination Act 1991 ('the Act') exempting Protech from the operation of ss 14, 15, 15A and 127 of the Act, in relation to the attribute in s 7(a) of the Act, only in respect of the actions or omissions which were reasonably necessary in relation to the advertising, recruitment and employment practices.
The exemption granted was for a period of two years from 21 November 2019.

As best as I understand it, by application filed on 17 November 2021, Protech, pursuant to s 113(7) of the Act, applies for a renewal of the exemption for three years ('Protech's renewal application').
The determination of Protech's renewal application requires a consideration of the Act and the relevant provisions of the Human Rights Act 2019 ('the HRA')

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: [2022] QIRC 29
Decision Date: 7 February 2022

CaseChat Overview and Summary

Protech Personnel Pty Ltd applied to renew an exemption granted under the Anti-Discrimination Act 1991, which allows it to engage in sex-based recruitment practices for the construction industry. The Queensland Industrial Relations Commission considered the application and the implications of the Human Rights Act 2019. The primary legal issues were whether the Commission's decision to renew the exemption constituted an administrative action under the Human Rights Act 2019 and whether such renewal would affect human rights or be compatible with them.

The Commission examined whether the renewal of the exemption involved administrative action, which would need to respect human rights. It concluded that the decision to renew the exemption was an administrative act. However, the Commission found that renewing the exemption did not affect any human rights adversely and was compatible with human rights. The Commission noted the importance of promoting gender diversity in traditionally male-dominated industries and considered the exemption necessary to achieve this goal without infringing on anti-discrimination principles.

In light of the analysis, the Commission decided to renew the exemption for three years, allowing Protech to continue its targeted recruitment programs for women in the construction industry. The Commission balanced the need for gender diversity with the requirement to avoid unlawful discrimination, finding the exemption renewal to be a proportionate and necessary measure.

Orders

Orders of the court

The exemption granted to Protech Personnel Pty Ltd pursuant to s 113(1) of the Anti‑Discrimination Act 1991, by the first two orders made in Re: Protech Personnel Pty Ltd [2019] QIRC 175 dated 21 November 2019 is, pursuant to s 113(7) of the Anti‑Discrimination Act 1991, renewed for a period of three years from the date of this order.

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

For the reasons that follow, I will renew the first two orders in the exemption granted by Vice President O'Connor in Re: Protech Personnel Pty Ltd for a further three years.The decision in Re: Protech Personnel Pty Ltd In Re: Protech Personnel Pty Ltd, Protech made an application for it to be exempted from the operation of ss 14, 15, 15A and 127 of the Act in relation to the attribute of sex for a period of two years.[2] [2] Re: Protech Personnel Pty Ltd (n 1), [4] (Vice President O'Connor). Part of Protech's reasons for seeking the exemption was that it had been approached by one of its clients, RoadTek, Department of Transport and Main Roads, to assist in the development of a program to address the underrepresentation of women in their construction workforce. Protech submitted that the exemption it sought was so that it could undertake targeted recruitment for women to complete a certificate level course in resources and work infrastructure.[3] [3] Ibid [2]. In granting that exemption, Vice President O'Connor relevantly considered that:·because the conduct which Protech proposes to engage was discriminatory, that conduct would be unlawful such that it was necessary for Protech to obtain an exemption;·Protech had not identified any non-discriminatory ways of achieving the object or purpose for which it sought the exemption;·because of low levels of female representation in the construction workforce, it was therefore in the community interest for programs to exist to help facilitate and encourage women to apply for jobs in industries which had been and continue to be traditionally male dominated;·the HRC did not oppose the principle of targeted recruitment of groups such as women who were underrepresented in particular industries;·it was reasonable and appropriate to grant the exemption because of the small percentage of women in the construction industry; and·the exemption would provide Protech with certainty to advertise and recruit women only without fear of a complaint stemming from a requirement that would normally be unlawful under the Act.[4][4] Re: Protech Personnel Pty Ltd (n 1), [11]-[18]. His Honour made three orders, namely:1. Protech Personnel Pty Ltd is exempt from the operations of sections 14, 15, 15A and 127 of the Anti-Discrimination Act 1991 in relation to the attribute in s 7(a).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 Protect Personnel Pty Ltd for a period of two years from the date of this decision.[5] [5] Ibid [20].Protech's renewal application Section 113(7) of the Act provides that an exemption under s 113(1) may be renewed for further periods of not more than five years, on application by the person or people to whom, or in respect of whom, the exemption was granted. Protech meets the description of a person to whom the exemption was granted. In its renewal application, Protech submits that:·women only account for 12% of the construction industry workforce;·it is committed to promoting the engagement of women in the construction industry and also the project management sector of the construction industry;·to date, its women in construction program has been successful over the last two years;·it has collaborated with its clients in Queensland in the development of programs to address the underrepresentation of women in the construction workforce and its program is designed to promote growth, industry participation and to increase traineeship opportunities in a safe and structured environment/workplace;·it is seeking to commence another program for women in construction and to expand the program to women in project management;·the program is to commence in March 2022, with advertising proposed to have started in December 2021 and the program will be offered to approximately 20 women across Queensland;·the extension of the exemption was being sought for Protech to partner with RoadTek to do a targeted recruitment for women to complete a Certificate III in civil construction and that it has been approached by RoadTek with an opportunity to develop a recruitment strategy to increase the number of female project managers in RoadTek;·RoadTek would like Protech to advertise across other industries to identify people who have a complementing skill set/qualification that could potentially cross over into the civil industry being roles that would sit within civil construction, civil electrical and maintenance areas, and be supported with training mentors from both Protech and RoadTek;·the employees will be engaged on a full-time basis for a period of 12 months by Protech;·it is the employer, and the exemption extension is only being sought on behalf of Protech and not RoadTek;·9% of its workforce is women; ·it found that standard advertising holistically did not encourage smaller diverse groups to apply which is the reason why it was applying to have targeted advertising for women in its program; and·the program:- would provide a unique opportunity for females, without any prior experience to enter the construction industry, through a structured training and employment program;- would position RoadTek as an employer of choice for women by encouraging women to take up a career in the construction industry;- would allow RoadTek to meet target training and diversity targets; and- would assist in creating a more diverse workforce aligned to Queensland State Government priorities.The Human Rights Act 2019

Ratio Decidendi

Legal Principle Established

His Honour made three orders, namely:1. Protech Personnel Pty Ltd is exempt from the operations of sections 14, 15, 15A and 127 of the Anti-Discrimination Act 1991 in relation to the attribute in s 7(a).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 Protect Personnel Pty Ltd for a period of two years from the date of this decision.[5] [5] Ibid [20].Protech's renewal application Section 113(7) of the Act provides that an exemption under s 113(1) may be renewed for further periods of not more than five years, on application by the person or people to whom, or in respect of whom, the exemption was granted. Protech meets the description of a person to whom the exemption was granted. In its renewal application, Protech submits that:·women only account for 12% of the construction industry workforce;·it is committed to promoting the engagement of women in the construction industry and also the project management sector of the construction industry;·to date, its women in construction program has been successful over the last two years;·it has collaborated with its clients in Queensland in the development of programs to address the underrepresentation of women in the construction workforce and its program is designed to promote growth, industry participation and to increase traineeship opportunities in a safe and structured environment/workplace;·it is seeking to commence another program for women in construction and to expand the program to women in project management;·the program is to commence in March 2022, with advertising proposed to have started in December 2021 and the program will be offered to approximately 20 women across Queensland;·the extension of the exemption was being sought for Protech to partner with RoadTek to do a targeted recruitment for women to complete a Certificate III in civil construction and that it has been approached by RoadTek with an opportunity to develop a recruitment strategy to increase the number of female project managers in RoadTek;·RoadTek would like Protech to advertise across other industries to identify people who have a complementing skill set/qualification that could potentially cross over into the civil industry being roles that would sit within civil construction, civil electrical and maintenance areas, and be supported with training mentors from both Protech and RoadTek;·the employees will be engaged on a full-time basis for a period of 12 months by Protech;·it is the employer, and the exemption extension is only being sought on behalf of Protech and not RoadTek;·9% of its workforce is women; ·it found that standard advertising holistically did not encourage smaller diverse groups to apply which is the reason why it was applying to have targeted advertising for women in its program; and·the program:- would provide a unique opportunity for females, without any prior experience to enter the construction industry, through a structured training and employment program;- would position RoadTek as an employer of choice for women by encouraging women to take up a career in the construction industry;- would allow RoadTek to meet target training and diversity targets; and- would assist in creating a more diverse workforce aligned to Queensland State Government priorities.The Human Rights Act 2019