United Synergies Ltd - [2015] QCAT 89

CITATION:

United Synergies Ltd [2015] QCAT 89

PARTIES:

United Synergies Ltd
(Applicant)

APPLICATION NUMBER:

ADL073-14

MATTER TYPE:

Anti-discrimination matters

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Senior Member Stilgoe OAM

DELIVERED ON:

30 March 2015

DELIVERED AT:

Brisbane

ORDERS MADE:

1. United Synergies 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(g) for a period of five years from the date of this decision.

CATCHWORDS:

ANTI-DISCRIMINATION – EXEMPTION – DISCRIMINATION ON THE BASIS OF RACE – where community organisation – where provision of services to indigenous people – where essential that service provider also indigenous – whether exemption required.

ANTI-DISCRIMINATION – EXEMPTION – DISCRIMINATION ON THE BASIS OF RACE– where reconciliation action plan – where plan to increase indigenous participation in workforce – where current participation rate 4% – where existing liaison with other community organisations – where organisation identifies active recruitment strategies required – whether exemption required

Anti-Discrimination Act 1991 (Qld) ss 7(g), 24, 25, 113

Minister for Education and Commissioner for Equal Opportunity and Ors (1987) EOC 92-198
City of Brunswick; Re Application for exemption from provisions of Equal Opportunity Act (1992) EOC 92-450

APPEARANCES:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).

REASONS FOR DECISION

According to its website[1], United Synergies Ltd is a not for profit organisation that provides direct services and support to individuals, families and communities in the Noosa region.
[1]See
A number of its programs target services and support to Aboriginal and Torres Strait Island people. The people who run these programs must have extensive knowledge and relationships with their local communities. Ideally, the workers should have an Aboriginal or Torres Strait Island background. To achieve that end, United Synergies wants to choose employees by race.
A person must not discriminate by race in deciding whom it should employ[2]. But the Anti-Discrimination Act 1991(Qld) states[3] that it is not unlawful to discriminate in the work or work related area if an exemption under ss 25 to 36 or Part 5 of the Act applies. Section 25(1) states that a person may impose genuine occupational requirements for a position.
[2]Anti-Discrimination Act 1991 s 14(b).
[3]Ibid s 24.
I am satisfied that an Aboriginal or Torres Strait Island background is a genuine occupational requirement for workers who deliver programs to people of that cohort. The automatic exemption provided by s 25 will address any potential discrimination.
United Synergies is close to completing a reconciliation action plan. One of the plan’s aims is to address under-representation of Aboriginal and Torres Strait Island people employed by United Synergies. United Synergies wants the mix of staff reflect the mix of clients. It wants to target specifically workers with an Aboriginal or Torres Strait Island background for general employment.
The automatic exemption under s 25 will not protect United Synergies in this case…

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: [2015] QCAT 89
Decision Date: 30 March 2015

CaseChat Overview and Summary

United Synergies Ltd, an organisation that provides services to indigenous people, sought exemption from certain anti-discrimination provisions under the Anti-Discrimination Act 1991. The Queensland Anti-Discrimination Tribunal was required to determine whether United Synergies was exempt from the discrimination provisions because it was essential for its services to be provided by an indigenous person. The Tribunal needed to consider the nature of the services provided, the reasons for the requirement of an indigenous service provider, and the efforts undertaken by United Synergies to increase indigenous participation in its workforce.

The Tribunal considered that the services provided by United Synergies were essential for the indigenous community, and it was crucial that these services be provided by an indigenous person due to cultural sensitivity and understanding. The Tribunal also examined United Synergies' reconciliation action plan and its efforts to increase indigenous participation in its workforce, which stood at 4% at the time. While recognising the importance of increasing indigenous participation, the Tribunal found that the nature of the services required an indigenous service provider and that United Synergies had taken reasonable steps to achieve this goal. The Tribunal concluded that United Synergies qualified for the exemption under the Anti-Discrimination Act.

As a result, the Tribunal ordered that United Synergies be exempt from the operation of sections 14, 15 and 127 of the Anti-Discrimination Act 1991 in relation to discrimination on the basis of race for a period of five years from the date of the decision. This exemption allows United Synergies to continue its services to the indigenous community while also working towards increasing indigenous participation in its workforce.

Orders

Orders of the court

1. United Synergies 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(g) for a period of five 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

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Ratio Decidendi

Legal Principle Established

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