Re: Team Blake Pty Ltd - [2024] QIRC 163

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:	Re: Team Blake Pty Ltd [2024] QIRC 163
PARTY:	Team Blake Pty Ltd (Applicant)
CASE NO:	AD/2023/132
PROCEEDING:	Application for exemption
DELIVERED ON:	3 July 2024
MEMBER: HEARD AT:	Power IC On the papers
ORDER:	1. The Applicant is exempt from the operation of s 14, s 15, s 15A, 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, recruitment, selection, appointment and employment of a support worker for Mr Blake Norrie. 3. The exemption shall apply for a period of five years from the date of these orders.
CATCHWORDS:	EQUAL OPPORTUNITY AND DISCRIMINATION – EXEMPTION – DISCRIMINATION ON THE BASIS OF SEX – ANTI-DISCRIMINATION – EXEMPTION – application to grant exemption under s 113 of the Anti-Discrimination Act 1991 (Qld) – exemption in relation to discrimination on the grounds of sex so the applicant can advertise, recruit, select, appoint and employ a support worker. HUMAN RIGHTS – DISCRIMINATION LEGISLATION – whether granting the exemption affects a human right within the meaning of the Human Rights Act 2019 (Qld) – whether exemption is compatible with human rights within the meaning of the Human Rights Act 2019 (Qld) – exemption granted.
LEGISLATION:	Anti-Discrimination Act 1991 (Qld), ss 7(a), 14, 15, 15A, 26, 27, 105, 108, 113, 113AD, 124, 127, 174B Human Rights Act 2019 (Qld), ss 5, 8, 9, 13, 15, 48, 58
CASES:	Anglo Coal (Moranbah North Management) Pty Ltd [2018] QIRC 52 Lifestyle Communities Ltd (No 3) (Anti‑Discrimination) [2009] VCAT 1869 Re: Ipswich City Council [2020] QIRC 194 Re: Jet Aviation Australia Pty Ltd & Jet Aviation Australia (Qld) Pty Ltd [2024] QIRC 133 Re: Protech Personnel Pty Ltd [2019] QIRC 175 The Australian Institute for Progress Ltd v The Electoral Commission of Queensland [2020] QSC 54

Reasons for Decision

Introduction

Team Blake Pty Ltd ('the Applicant') applied for an exemption from the operation of specified provisions of the Anti-Discrimination Act 1991 (Qld) ('the AD Act') on the basis of the attribute of sex ('exemption application') to allow the Applicant to recruit male support workers for Mr Blake Norrie, who has a severe to profound intellectual disability and is non-verbal.
The Commission forwarded a copy of the exemption application and supporting material to the Queensland Human Rights Commission ('the QHRC'). The QHRC indicated that it supports an exemption in favour of the Applicant and stated that it did not intend to make any further submissions.

The Commission issued a Directions Order providing the Applicant the opportunity to file written submissions and affidavit material in support of the exemption application.
The question for determination is whether the Applicant should be granted an exemption pursuant to s 113AD of the AD Act. This requires consideration of the AD Act and the relevant provisions of the Human Rights Act 2019 (Qld) ('the HR Act').
The…

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: [2024] QIRC 163
Decision Date: 3 July 2024

CaseChat Overview and Summary

The matter before the Queensland Civil and Administrative Tribunal (QCAT) involved an application by Team Blake Pty Ltd for an exemption under section 113 of the Anti-Discrimination Act 1991 (Qld) to allow them to advertise, recruit, select, appoint, and employ a support worker on the basis of sex. The applicant argued that the exemption was necessary to ensure that Mr Blake Norrie, a person with a disability, could receive the appropriate support and care from a female support worker, which was essential for his wellbeing. The application was heard by QCAT, which had to determine whether the exemption would affect a human right under the Human Rights Act 2019 (Qld) and whether it was compatible with human rights.

The primary legal issue for QCAT was whether the exemption would affect a human right as defined in the Human Rights Act 2019 (Qld). QCAT had to consider whether the exemption would limit the rights of others to be free from discrimination based on sex. QCAT also needed to decide whether the exemption was compatible with human rights and whether the benefit of granting the exemption outweighed any potential harm to the rights of others. In reaching its decision, QCAT considered the nature of the disability support required by Mr Norrie, the evidence provided by the applicant, and the potential impact of the exemption on others.

QCAT concluded that the exemption would not significantly affect a human right, as the primary purpose was to ensure that Mr Norrie received the necessary support for his disability. The Tribunal found that the benefit of granting the exemption outweighed any potential harm to the rights of others. Consequently, QCAT granted the exemption to Team Blake Pty Ltd. The exemption allows the applicant to advertise, recruit, select, appoint, and employ a support worker on the basis of sex for Mr Norrie. The exemption is limited to actions or omissions in relation to Mr Norrie and is in effect for five years from the date of the orders.

In summary, QCAT granted the exemption to Team Blake Pty Ltd, allowing them to advertise, recruit, select, appoint, and employ a support worker on the basis of sex for Mr Norrie. The exemption is in place for five years and applies only in respect of actions or omissions in relation to Mr Norrie.

Orders

Orders of the court

1. The Applicant is exempt from the operation of s 14, s 15, s 15A, 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, recruitment, selection, appointment and employment of a support worker for Mr Blake Norrie.

3. The exemption shall apply for a period of five 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

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Ratio Decidendi

Legal Principle Established

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