Re: Protech Personnel Pty Ltd - [2019] QIRC 175

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:	Re: Protech Personnel Pty Ltd [2019] QIRC 175
PARTIES:	Protech Personnel Pty Ltd (Applicant)
CASE NO:	AD/2019/105
PROCEEDING:	Application for exemption
DELIVERED ON:	21 November 2019
MEMBER: HEARD AT:	O'Connor VP On the papers
ORDERS:	*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 Protech Personnel Pty Ltd for a period of two years from the date of this decision.**
CATCHWORDS:	ANTI-DISCRIMINATION – EXEMPTION – DISCRIMINATION ON THE BASIS OF SEX – whether exemption is necessary – whether exemption is reasonable and appropriate – where exemption would provide certainty – exemption granted
LEGISLATION: CASES:	Anti-Discrimination Act 1991 s 7(a), s 14, s 15, s 15A, s 113, s 127, s 174B 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 Education and Commissioner for Equal Opportunity and Ors (1987) EOC 92-198 Stevens v Fernwood Fitness Centres Pty Ltd (1996) EOC 92-782

Reasons for Decision

On 23 September 2019 Protech Personnel Pty Ltd (the Applicant) filed an application for an exemption from the operation of specified provisions of the Anti-Discrimination Act 1991 Qld ("the ADA"). Protech is a labour hire provider that services the construction industry.
As part of its services Protech operates diversity employment programs with an aim to encourage and facilitate the entry of people who have historically been poorly represented in the construction industry. Protech says it was 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. The exemption is sought so that Protech can undertake targeted recruitment for women to complete a RII20715 Certificate II in Resources and Work Infrastructure qualification.
The exemption is sought only on behalf of Protech and not its client.
The Application
Protech seeks exemption from the operation of sections 14, 15, 15A and 127 of the ADA in relation to the attribute in s 7(a) "sex" for a period of two years.
Section 14 "Discrimination in the pre-work area" relevantly outlines that a person must not discriminate in relation to the arrangements made for deciding who should be offered work, or, in deciding who should be offered work.
Section 15 "Discrimination in work area" prohibits discrimination in the workplace and covers terms of employment; access to opportunities; terminations of employment; training programs; and, the general treatment of the worker.
Section 15A "Discrimination by principals" prohibits discrimination against a worker who does work, or is to do work, for another person because of…

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: [2019] QIRC 175
Decision Date: 21 November 2019

CaseChat Overview and Summary

Protech Personnel Pty Ltd sought an exemption from certain provisions of the Anti-Discrimination Act 1991 (Qld) to enable it to advertise and recruit women only for a two-year period. The application was heard by the Anti-Discrimination Tribunal, which was required to determine whether the exemption was necessary, reasonable, and appropriate to provide Protech with certainty in its recruitment practices without breaching the Act. The Tribunal concluded that granting the exemption would allow Protech to engage in gender-specific recruitment without the risk of a complaint for unlawful discrimination.

The Tribunal had to decide whether the exemption was necessary to prevent Protech from potentially breaching the Act by advertising and recruiting in a gender-specific manner. It was also required to determine whether the exemption was reasonable and appropriate, and whether it would provide Protech with the necessary certainty to operate without fear of a complaint. The Tribunal found that the exemption was necessary to prevent potential unlawful discrimination and was reasonable and appropriate to achieve the desired outcome. The Tribunal determined that the exemption would provide Protech with the certainty it needed to pursue its recruitment strategy without fear of a complaint.

The Tribunal granted the exemption sought by Protech, noting that the exemption was for a period of two years and that there were no compelling reasons or objections to the exemption. The Tribunal concluded that granting the exemption would provide Protech with the certainty it needed to engage in gender-specific recruitment without the risk of a complaint for unlawful discrimination. The Tribunal was satisfied that the exemption was necessary, reasonable, and appropriate and would not result in any unlawful discrimination.

The Tribunal made an order exempting Protech from the operations of sections 14, 15, 15A, and 127 of the Anti-Discrimination Act 1991 in relation to the attribute in section 7(a) for a period of two years. The exemption applied only in respect of actions or omissions that were reasonably necessary in relation to the advertising, recruitment, and employment practices. The exemption was granted to Protech to enable it to advertise and recruit women only without fear of a complaint for unlawful discrimination.

Orders

Orders of the court

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 Protech Personnel Pty Ltd for a period of two years from the date of this decision.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

It is apparent that a failure to grant the exemption would expose Protech to a risk that it may unlawfully breach a provision of the ADA. The exemption will 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 ADA.Conclusion I am satisfied that the Tribunal should grant the exemption sought. I note that the exemption requested is for two years. In the absence of any compelling reasons or objections I am minded to grant the order for a period of two years from the date of this decision.

Ratio Decidendi

Legal Principle Established

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