Re The Youth and Family Service (Logan City) Inc
[2012] QCAT 352
•29 July 2012
| CITATION: | Re The Youth and Family Service (Logan City) Inc [2012] QCAT 352 |
| PARTIES: | The Youth and Family Service (Logan City) Inc |
| APPLICATION NUMBER: | ADL048-12 |
| MATTER TYPE: | Anti-discrimination matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | S Gardiner, Member |
| DELIVERED ON: | 29 July 2012 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | Youth and Family Service (Logan City) Inc is exempt from the operation of sections 14, 15 and 127 of the Anti-Discrimination Act 1991 in relation to the attribute in s 7(a) until 31 December 2014 in respect of the activities of advertising for, and the employment of, specifically male or female caseworkers for its domestic violence team. The exemption applies only to acts or omissions reasonably necessary to ensure employment of sufficient gender specific workers to address the objectives the domestic violence counselling, and support programs. |
| CATCHWORDS: | ANTI-DISCRIMINATION – exemption from liability sought for services provided only to perpetrators and victims of domestic violence – where a specific exemption and defence available – where general exemption granted Anti-Discrimination Act 1991, reasons (6)(a) and (b), ss 7,14,15, 25, 104, 113, 127 Re: Boeing Australia Holdings Pty Ltd & related entities [2003] QADT 21 Qantas Airways v Christie (1998) HCA 18 Re The Women’s Community Aid Association (Qld) Limited [2011] QCAT 593 |
APPEARANCES and REPRESENTATION (if any):
The hearing took place on the papers under section 32 of the Queensland Civil and Administrative Tribunal Act 2009.
REASONS FOR DECISION
The Youth and Family Service (Logan City) Inc (YFS) has three contracts with the Department of Communities to provide individual counselling for perpetrators of domestic violence over 16 years and access to the perpetrator intervention program for clients over 18 years in Logan and surrounding areas. Individual and group counselling, support and information is also provided in conjunction with another service to both perpetrators (mostly men) and victims of domestic and family violence (mostly women). Court assistance is provided for perpetrators and advocacy provided for victims.
In order to deliver these services to both perpetrators and victims, YFS strives to keep a gender balance in its domestic violence team made up of an equal ratio of male and female workers. Currently the domestic violence team consists of 4 full time and 1 part time female members and 1 male part time member – a long way off gender neutrality.
YFS has applied for an exemption under section 113 of the Anti-Discrimination Act 1991 from operation of the Act in specific areas. YFS says an exemption is sought to allow YFS to maintain an equal ratio of male and female workers in the domestic violence team.
The group activities provided by YFS under the contracts with the Department of Communities must be delivered in accordance with the Department of Communities (QLD) professional practice standards (a copy of which was provided to the Tribunal) for these particular programs. One of the essential requirements of the standards is that one male and one female facilitator conduct the group programs. It also requires that two female facilitators can perform no more than three sessions and no more than two consecutive sessions.
These standards are very prescriptive. In order to meet the contractual requirements, YFS say that an exemption is required to allow it to recruit either male or female team members, depending on the staff requirements at the time. YFS seeks an exemption until 31 December 2014 to cover all the current domestic violence contracts at YFS.
YFS therefore seeks an exemption from the Act that prohibits discrimination on the basis of sex[1] and because of the circumstances of the exemption sought, exemption from discrimination in the pre-work area, in the work area and in advertising[2].
[1] Anti-Discrimination Act 1991, s 7(a).
[2] Anti-Discrimination Act 1991, ss 14, 15 and 127.
QCAT is required to provide a copy of the application to the Anti-Discrimination Commissioner and to have regard to any submission made by the Commissioner. A copy of the application was sent to the Commissioner on 1 June 2012. The Commissioner has informed QCAT that he has no objection to an exemption being granted to YFS.
In considering this application, I must first examine whether an exemption is necessary[3] as conduct first appearing to breach the provisions of the Anti-Discrimination Act 1991 may be excused by specific exemptions or defences in the Act and it may not be necessary to grant a general exemption under section 113.
[3]Exemption application Re: Boeing Australia Holdings Pty Ltd & related entities [2003] QADT 21.
Firstly, section 25 of the Act allows genuine occupational requirements to be imposed in work or work related areas of activities. Work includes both full time and part time employment[4]. If a complaint were to be made against FYS in the area of work, section 25 may be relied upon as a defence of that complaint.
[4] Anti-Discrimination Act 1991, Schedule – Dictionary.
[10] Guidance as to the meaning of “genuine occupational requirement” has been provided by the High Court of Australia[5] explaining that determining if a requirement is an inherent requirement involves consideration as to whether the position would essentially be the same in the absence of the requirement.
[5] Qantas Airways v Christie (1998) HCA 18 at 36.
[11] Here facilitators in the YFS are of both genders and, but for the requirements of the professional practice standards both genders could arguable present group and individual counselling and support to mostly male perpetrators. But for these standards, contractually imposed, gender neutrality would be ideal but not necessary.
[12] I am not satisfied that section 25 would be available to YFS as a defence to complaints of discrimination based on the attribute of sex in the work area.
[13] Secondly, section 104 of the Anti-Discrimination Act 1991 provides a person may carry out some conduct to benefit the members of a group of people with an attribute for whose welfare the conduct was designed and in doing so, the conduct is not discriminatory if the purpose for carrying out the conduct is not inconsistent with the Anti-Discrimination Act 1991.
[14] Providing counselling, and support services to men and women who have experienced domestic violence is for the benefit of these perpetrators and victims although the different counselling, and support provided to each group is not totally based on gender. For example, there have been circumstances (although limited) where the perpetrator of domestic violence is female and where the victim is male. Unlike other previous cases before QCAT, being provided these services is not limited by gender[6] and therefore arguably inconsistent with the Anti-Discrimination Act 1991.
[6]See for example, Re The Women’s Community Aid Association (Qld) Limited [2011] QCAT 593.
[15] The Act recognises that everyone should be equal before and under the law and have the right to equal protection and benefit of the law without discrimination but that the protection of fragile freedoms is best effected by legislation that reflects the aspirations and needs of contemporary society.[7]
[7] Anti-Discrimination Act 1991, Parliament’s reasons for enacting: reasons (6)(a) and (b).
[16] I am satisfied that the aspirations and needs of our society do require recognition that striving to keep a gender balance in YFS’s domestic violence team promotes the work this organisation does in the prevention of domestic violence and in the protection of victims – whatever their gender. I am also satisfied that to comply with the contractual obligations of the Department of Communities (QLD) professional practice standards, the domestic violence team must as far as possible be made up of an equal ratio of male and female workers. In order to accomplish this, I am satisfied that it is appropriate to allow YFS an exemption under s 113 of the Act so it may advertise and select staff to ensure gender neutrality as far as possible and to allow appropriate presentations of its domestic violence counselling, and support programs.
[17] I grant an exemption from the operation of sections 14, 15 and 127 of the Anti-Discrimination Act 1991 to YFS in relation to the attribute in s 7(a) until 31 December 2014 in respect of the activities of advertising for, and the employment of, specifically male or female caseworkers for its domestic violence team. The exemption applies only to acts or omissions reasonably necessary to ensure employment of sufficient gender specific workers to address the objectives the domestic violence counselling, and support programs.
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