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

1. 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.

2. 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.

3. The exemption is sought only on behalf of Protech and not its client.

   The Application

4. 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.

5. 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.

6. 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.

7. Section 15A "Discrimination by principals" prohibits discrimination against a worker who does work, or is to do work, for another person because of a contractual arrangement between the principal and a third party, or another arrangement between a principal and a third party.

8. Section 127 "Discriminatory advertising" is a penalty provision which prohibits the publication and display of advertisements which in any way contravene the ADA; the section also provides a clarification and defences.

Consideration

1. 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.[1] Accordingly, the following matters may be considered:

   1.       Whether the exemption is necessary;[2]

   2.       Whether there are any non-discriminatory ways of achieving the objects or purposes for which the exemption is sought;[3]

   3.       Whether the exemption is in the community interest;[4]

   4.       Whether any other persons or bodies other than the applicant support the application;[5]

   5.       Whether it is reasonable and appropriate to grant the exemption;[6] and

   6.       The effect of not granting the exemption.[7]

   [1] United Synergies Ltd [2015] QCAT 89; Exemption application re: Boeing Australia Holdings Pty Ltd and Ors [2003] QADT [12].

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

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

   [4] Ibid.

   [5] Minister for Education and Commissioner for Equal Opportunity and Ors (1987) EOC 92-198.

   [6] Stevens v Fernwood Fitness Centres Pty Ltd (1996) EOC 92-782.

   [7] Minister for Education and Commissioner for Equal Opportunity and Ors (1987) EOC 92-198.

1. I now turn to deal with some of the factors in exercising the discretion under s 113 ADA.

Is the exemption necessary?

1. The conduct which Protech proposes to engage is discriminatory. Therefore, for the proposed conduct to be lawful it will be necessary for Protech to obtain an exemption.

   Are there any non-discriminatory ways of achieving the objects or purposes for which the exemption is sought?

1. The Applicant has not identified any non-discriminatory ways of achieving the object or purpose for which the application is sought.

Is the exemption in the community interest?

1. In the affidavit accompanying the application Adrian Baker the General Manager of Protech deposes that women make up approximately 12% of the workforce in the construction industry with Protech currently engaging about 9% women in non-traditional roles. 

2. 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.

   Are there any other persons or bodies other than the Applicant that support the application?

1. The Queensland Human Rights Commission stated that it did not oppose the principle of targeted recruitment to groups such as women who are under-represented in particular industries, however, it asked that if the exemption is granted that the coverage and period be clear and transparent.

2. The material does not disclose if any person or body opposes the granting of the exemption.

Whether it is reasonable and appropriate to grant the exemption

1. Protech submitted that as women form a small percentage of the construction industry it has been their experience that standard advertising had not encouraged smaller and diverse groups to apply. In my view this suggests a reason to engage in alternative types of advertising, such as targeted advertising in order to attract women applicants. In the circumstances it is reasonable and appropriate to grant the exemption.

   The effect of not granting the exemption.

1. 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

2. I am satisfied that the Tribunal should grant the exemption sought.

3. 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.

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.