YFS Ltd - [2018] QIRC 83

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:	YFS Ltd [2018] QIRC 083
PARTIES:	YFS Ltd (Applicant)
CASE NO:	AD/2018/38
PROCEEDING:	Application for exemption from certain provisions
DELIVERED ON:	29 June 2018
HEARING:	On the papers
MEMBER:	Deputy President O'Connor
ORDERS: CATCHWORDS:	1. YFS Ltd is exempt from the operations of sections 14, 15, 124, and 127 of the Anti-Discrimination Act 1991 in relation to attribute in s 7(a); and 2. The exemption shall apply to the applicant from the date of the application, 24 May 2018, for a period of five years. ANTI-DISCRIMINATION – EXEMPTION – DISCRIMINATION ON THE BASIS OF SEX – where exemption is sought for the provision of services provided to perpetrators and victims of domestic violence – whether exemption for discrimination in work and work related areas available – whether general exemption for discrimination available – whether exemption is required – where exemption would provide certainty – exemption granted
LEGISLATION: CASES: APPEARANCES:	Anti-Discrimination Act 1991 s 7(a), s 14, s 15, s 25, s 105, s 113, s 124, s 127, s 174B Re: The Youth and Family Service (Logan City) Inc [2012] QCAT 352 YFS Ltd [2015] QCAT 295 No appearances

Reasons for Decision

On 24 May 2018 the applicant, YFS Ltd, filed an application for an exemption from the operation of specified provisions of the Anti-Discrimination Act 1991 ("the AD Act"). Section 113 of the AD Act enables this Commission to grant an applicant an exemption from complying with sections of the AD Act.
Relevant to this application, YFS Ltd provides services under a contract with the Department of Communities in a Domestic and Family Violence Perpetrator Intervention Program for clients in the Logan and surrounding areas. In addition, assistance and information is provided to male respondents attending the Beenleigh Magistrates Court in relation to domestic and family violence matters.
Applications of this nature come to the Industrial Relations Commission as a function of s 113 of the AD Act. That section refers to the "tribunal". Tribunal is defined in the Schedule to the AD Act as being, if the matter is work-related, the Industrial Relations Commission. For clarity, for the balance of these reasons the Industrial Relations Commission will be referred to as the Tribunal.
Section 113(2)(a) of the AD Act requires that an application for an exemption must be sent to the Anti-Discrimination Commission Queensland ("the ADCQ"). This process allows for the ADCQ to conduct searches against its records of whether any complaints have been made against the applicant. Moreover, it allows the ADCQ Commissioner to inform this Tribunal of whether it has any objection to the application for an exemption.

By a letter dated 25 June 2018, the ADCQ Acting Commissioner advised this Tribunal that there were no current complaints against the applicant and that the ADCQ had no objection to the application.

The Acting Commissioner's letter drew the attention of this Tribunal to two decisions of the Queensland Civil and Administrative Tribunal in 2012 and 2015 relating to exemptions…

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: [2018] QIRC 83
Decision Date: 29 June 2018

CaseChat Overview and Summary

YFS Ltd, a provider of services to perpetrators and victims of domestic violence, applied for an exemption from certain sections of the Anti-Discrimination Act 1991. The applicant argued that it was necessary to provide services in a manner that was tailored to the specific needs of individuals involved in domestic violence situations, which often required discrimination based on sex. The Queensland Civil and Administrative Tribunal (QCAT) was tasked with determining whether such an exemption was appropriate and if it would provide the necessary certainty for the provision of these services.

The central legal issue before QCAT was whether YFS Ltd could be granted an exemption from the sections of the Anti-Discrimination Act 1991 that prohibit discrimination on the basis of sex in work and work-related areas. The tribunal considered whether a general exemption for discrimination in these contexts was available and if it was required to ensure that the services provided were effective and tailored to the specific needs of domestic violence victims and perpetrators. The tribunal also needed to weigh the public interest in preventing discrimination against the need to provide effective support services in domestic violence situations.

In making its decision, QCAT found that granting the exemption would allow YFS Ltd to continue providing necessary services without fear of legal action for discrimination on the basis of sex. The tribunal determined that such an exemption would provide the required certainty for the organisation to operate effectively in this sensitive area. The tribunal concluded that the public interest in providing appropriate support to domestic violence victims and perpetrators outweighed the potential for discrimination, and therefore, granted the exemption for a period of five years. This decision ensures that YFS Ltd can continue its work in supporting those affected by domestic violence while also acknowledging the complexities involved in balancing anti-discrimination laws with the need for targeted services.

Orders

Orders of the court

1. YFS Ltd is exempt from the operations of sections 14, 15, 124, and 127 of the Anti-Discrimination Act 1991 in relation to attribute in s 7(a); and

2. The exemption shall apply to the applicant from the date of the application, 24 May 2018, for a period of five years.

ANTI-DISCRIMINATION – EXEMPTION – DISCRIMINATION ON THE BASIS OF SEX – where exemption is sought for the provision of services provided to perpetrators and victims of domestic violence – whether exemption for discrimination in work and work related areas available – whether general exemption for discrimination available – whether exemption is required – where exemption would provide certainty – exemption granted

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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