Re: Ipswich City Council [2020] QIRC 194 | Case summary

[60] Furthermore, in my view, the disadvantage is also because of socio-economic barriers faced by women, particularly women who have increased caring responsibilities, in respect of the cost and time required to attain a HR licence so as to be able to enter employment as a truck driver.

Queensland Industrial Relations Commission|2020-11-17|Before: Merrell DP

The application of these indicia by the tribunal will depend on the nature of the decision it is making and action it is taking. If the decision requires the tribunal to consider whether a measure is a special measure as a matter of fact and merit, as in the conduct of its administration and in the exercise of its administrative jurisdiction, the criteria are applied directly and the tribunal must come to its own view about the matter. That is the case with the exercise of the discretion in s 83(1) of the Equal Opportunity Act to grant an exemption...[53]

[59] Having regard to the information contained in the WWT survey, my own view is that the disadvantage expressed by the women in the transport industry who were surveyed, as referred to above, was because of discrimination within the meaning of the Act. I have formed this view because, having regard to the WWT survey and to the Driving Change report, no other cause is identified, other than sex, as being the reason for the disadvantage identified.

[60] Furthermore, in my view, the disadvantage is also because of socio-economic barriers faced by women, particularly women who have increased caring responsibilities, in respect of the cost and time required to attain a HR licence so as to be able to enter employment as a truck driver.

[61] It seems to me that the information contained in the WWT survey and in the Driving Change report support the view that the stereotyping of women in the transport industry, by being seen as only being able to perform administrative/office roles, constitutes direct discrimination within the meaning of the Act.

[62] The exemption sought by the Council is to recruit only female waste truck drivers and to link that recruitment with a training program. The successful female applicants are to be supported to obtain their HR licence while employed as trainee drivers, rather than the usual prerequisite of already holding a HR licence.

[63] Having regard to the material contained in the WWT survey and in the Driving Change report as referred to by the Council in its submissions (referred to in paragraph [45]), my view is that women seeking to enter employment as truck drivers are disadvantaged and that such disadvantage is because of discrimination within the meaning of the Act.

[64] For all these reasons, my opinion is that the exemption sought by the Council is a measure within the meaning of s 15(5) of the HRA. This is because it is a measure taken for the purpose of assisting or advancing women disadvantaged because of discrimination.

[65] As such, it becomes unnecessary to consider s 13 of the HRA.

Would a decision granting the exemption be compatible with human rights?

[66] For the reasons given in paragraphs [56] to [64], the granting of the exemption sought by the Council is compatible with human rights. This is because the granting of that exemption does not limit human rights.

[67] Section 48(1) of the HRA does not authorise an interpretation of statutory provisions which is inconsistent with their purpose; rather, the provisions must be interpreted, to the extent possible that is consistent with their purpose, in a way that is 'compatible with human rights'.[54]

[68] In the interpretation of statutory provisions conferring discretion on a decision maker, it has been held, in respect of the equivalent provision in the Victorian Charter,[55] that 'Identifying the scope of the discretion by statutory interpretation which takes human rights into account is essential.'[56]

[69] In R v A2,[57] Kiefel CJ and Keane J, in summarising the principles of statutory construction, stated in part:

The method to be applied in construing a statute to ascertain the intended meaning of the words used is well settled. It commences with a consideration of the words of the provision itself, but it does not end there. A literal approach to construction, which requires the courts to obey the ordinary meaning or usage of the words of a provision, even if the result is improbable, has long been eschewed by this Court. It is now accepted that even words having an apparently clear ordinary or grammatical meaning may be ascribed a different legal meaning after the process of construction is complete. This is because consideration of the context for the provision may point to factors that tend against the ordinary usage of the words of the provision.

Consideration of the context for the provision is undertaken at the first stage of the process of construction. Context is to be understood in its widest sense. It includes surrounding statutory provisions, what may be drawn from other aspects of the statute and the statute as a whole. It extends to the mischief which it may be seen that the statute is intended to remedy. "Mischief" is an old expression. It may be understood to refer to a state of affairs which to date the law has not addressed. It is in that sense a defect in the law which is now sought to be remedied. The mischief may point most clearly to what it is that the statute seeks to achieve.

[70] Further, s 14A(1) of the Acts Interpretation Act 1954 provides that in the interpretation of a provision of an Act, the interpretation that will best achieve the purpose of the Act is to be preferred to any other interpretation. The noun 'purpose', for an Act, is defined in the Acts Interpretation Act 1954 to include its policy objective.

[71] The HRC submits that the principles established by case law for the exercise of the discretion pursuant to s 113(1) of the Act are consistent with the test for compatibility with human rights.

[72] The Council made no specific submissions on this issue.

[73] Section 113(1) of the Act confers a broad and unfettered discretion upon the Commission to grant an exemption from the operation of a specified provision of the Act.[58] The purpose of s 113 is to allow persons the protection and security of a shield against complaints of unlawful discrimination in circumstances where their proposed actions constitute a prima facie case of unlawful discrimination, but where they are not inherently inconsistent with the Act.[59]

[74] For the reasons given in paragraphs [56] to [64], the granting of the exemption sought by the Council is a measure within the meaning of s 15(5) of the HRA. Because such an exemption is such a measure which, of itself, does not constitute discrimination, then the purposive construction of s 113(1) of the Act is compatible with human rights. This is because the granting of an exemption of the kind sought by the Council does not limit a human right.

[75] In my view, having regard to the considerations which have traditionally been taken into account in granting an exemption pursuant to s 113(1) of the Act, this is a case where the exemption sought by the Council should be granted.

[76] For the reasons given in paragraphs [56] to [64], the exemption is necessary to assist or advance women who have been disadvantaged because of discrimination and who wish to be employed as Waste Truck Drivers.

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

[77] The Council has not identified any non-discriminatory ways of achieving the object or purpose for which the exemption is sought.

[78] The Driving Change report points to many organisations in Australia which have introduced policies to promote a gender balance in traditionally male dominated industries by including, but not limited to, setting gender balance goals.[60]

[79] The Driving Change report also sets out some steps to make tangible diversity improvements including, relevantly:

training management and hiring staff on a gender bias;

having at least one female manager as part of the interview and on-boarding process;

establishing a support group of female employees in the business; and

assigning mentors to entry-level female employees.[61]

[80] However, it seems to me, having regard to the information contained in the WWT survey and in the Driving Change report, that setting gender balance goals may not remove the disadvantage experienced by women who wish to work in the transport industry in non‑administrative roles. As recommended in the Driving Change report, the first step in making tangible diversity improvements is hiring staff on a gender bias.

[81] For these reasons, it is difficult to envision any non-discriminatory ways of achieving the purpose for which the exemption is sought.

[82] The exemption is in the community interest. It is in the interest of the community that women be able to fully participate in any industry as truck drivers. The Driving Change report sets out reasons why diversity in the workplace is a key benefit. They include:

companies in the top quartile for gender diversity are 21% more likely to drive financial returns that outperform industry averages;

the rise in female employment since 1974 has boosted Australia's economic activity by 22%;

encouraging more women to join the workforce will fill roles across all sectors, increasing productivity and meeting consumer demand; and

having a diverse range of voices gives businesses a large pool of expertise and makes them better at adapting to change.[62]

Are there any other persons or bodies, other than the Council, supporting the application?

[83] The HRC raises no objection to the exemption being granted. The material does not disclose if any other person or body supports or opposes the granting of the exemption.

Is it reasonable and appropriate to grant the exemption?

[84] For the reasons given in paragraphs [56] to [64], it is reasonable and appropriate to grant the exemption sought by the Council.

[85] The Council and the HRC did not submit that the proposal by the Council - to employ only female Waste Truck Drivers in a training program - would be a welfare measure within the meaning of s 104 of the Act or that it would be an equal opportunity measure within the meaning of s 105 of the Act. There have been cases where applications for exemptions under s 113 of the Act have been dismissed because such applicants would have available to them the general exemption under s 104[63] or under s 105.[64] However, in the absence of any compelling submission, particularly from the HRC, that s 105 would amount to a sufficiently certain defence to the Council's proposal, I am of the view that the exemption should be granted.[65]

What is the effect of not granting the exemption?

[86] In my view, the failure to grant the exemption would perpetuate the disadvantage suffered by women who wish to work as truck drivers.

[87] The terms of the exemption sought by the Council are set out in paragraph [8]. Having regard to the purpose for which the exemption is sought, those terms are reasonable.

[88] For the reasons I have given earlier, for the exemption sought to meet the purpose of s 113(1) of the Act, the exemption should be granted to the Council from the operation of not only s 14 and s 15 of the Act, but also s 124 and s 127 of the Act.

[89] For the reasons I have given, I am satisfied that I should grant the exemption sought.

The Ipswich City Council is exempt from the operation of s 14, s 15, 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.

The exemption applies only in respect of actions or omissions in relation to the advertising and recruitment of Waste Truck Drivers to be employed by the Ipswich City Council for a training program to obtain a Heavy Rigid Licence.

The exemption shall apply to the Ipswich City Council for a period of three years from the date of these orders.

[1] The application filed by the Ipswich City Council on 25 June 2020 ('the Council's application'), s 3(a).

[2] The Council's application, s 3(b).

[3] The Council's application, s 3(c).

[4] As in, for example, the orders made in Exemption application re Boeing Australia Holdings Pty Ltd and Ors [2003] QADT 21 ('Boeing') (President Sofronoff QC) and in Re: Kalwun Development Corporation Ltd [2019] QIRC 141, ('Kalwun') (Vice President O'Connor).

[6] Boeing (n 4) [12]-[16] (President Sofronoff QC) and Kalwun (n 4) [6] (Vice President O'Connor).

[8] Explanatory Notes, Human Rights Bill 2018 (Qld) 11.

[9] PJB v Melbourne Health and Anor ('Patrick's case') [2011] VSC 327; (2011) 39 VR 373.

[10] Patrick's case (n 9) [124] (Bell J)

[11] Lifestyle Communities Ltd (No 3) (Anti-Discrimination) [2009] VCAT 1869, [42] ('Lifestyle Communities') (Bell J, President).

[16] Lifestyle Communities (n 11) [42]-[45].

[18] State of Queensland v Together Queensland [2012] QCA 353; [2014] 1 Qd R 257 [59] (Holmes, Muir and White JJA).

[19] Ibid [95], concerning the equivalent provision in s 334(1)(b) the Industrial Relations Act 1999.

[20] Ibid [87], concerning the equivalent provisions in ch 6 of the Industrial Relations Act 1999.

[22] Re Cram; Ex parte Newcastle Wallsend Coal Co Pty Ltd [1987] HCA 29; (1987) 163 CLR 140, 148-149 (Mason CJ, Brennan, Deane, Dawson and Toohey JJ)

[23] Commonwealth v Grunseit [1943] HCA 47; (1943) 67 CLR 58, 82 (Latham CJ).

[24] Re Kracke and Mental Health Review Board [2009] VCAT 646; (2009) 29 VAR 1, [297] (Bell J, President).

[25] The phrase 'work-related matter' is exhaustively defined in the schedule to the Act to mean '... a complaint or other matter relating to, or including, work or the work-related area.' The noun 'work' is given a broad, non‑exhaustive definition in the schedule to the Act including, relevantly, '... work in a relationship of employment (including full-time, part-time, casual, permanent and temporary employment).'

[26] Part 2 of the Human Rights Act 2019 deals with human rights in Queensland. Part 3, div 3 of the Human Rights Act 2019 deals with the interpretation of laws.

[27] The same conclusion has been reached in applying the Victorian Charter to the equivalent discretion to grant exemptions contained in s 83(1) of the Equal Opportunity Act 1995 (Vic): Lifestyle Communities (n 11) [75]‑[104].

[31] Citing Lifestyle Communities (n 11) [310].

[32] Citing Lifestyle Communities ibid [298].

[33] 'Working Women in Transport - A Snapshot The Follow Up' Transport Women Australia Limited (web page, 30 October 2020) https://www.transportwomen.com.au/wp-content/uploads/2011/11/Women-Working-in-Transport-survey-report-sent-to-printer.pdf ('the WWT survey').

[34]Driving Change - A Closer Look at Women in Transport (web page, 30 October 2020) https://www.teletracnavman.com.au/marketing/assets/ebooks/au/women%20in%20transport\_rls0719\_sm.pdf ('the Driving Change report').

[35] Lifestyle Communities (n 11) [310].

[36] The statement made on behalf of the Council in the Council's application, para. 4.

[37] Section 8 of the Victorian Charter provides:

(1) Every person has the right to recognition as a person before the law.

(2) Every person has the right to enjoy his or her human rights without discrimination.

(3) Every person is equal before the law and is entitled to the equal protection of the law without discrimination and has the right to equal and effective protection against discrimination.

(4) Measures taken for the purpose of assisting or advancing persons or groups of persons disadvantaged because of discrimination do not constitute discrimination.

[38] Lifestyle Communities (n 11) (footnotes omitted).

[40] Lifestyle Communities (n 11) [259].

[45] The applicant already had been granted an exemption to provide accommodation at one of its villages exclusively to people over the age of 55 years: Lifestyle Communities (n 11) [9].

[46] Lifestyle Communities (n 11) [384].

[50] Lifestyle Communities (n 11) (Footnotes omitted).

[53] Lifestyle Communities (n 11) (footnotes omitted).

[54] The Australian Institute for Progress Ltd v The Electoral Commission of Queensland & Ors [2020] QSC 54, [117] (Applegarth J).

[57] [2019] HCA 35; (2019) 93 ALJR 1106 (citations omitted) (Nettle and Gordon JJ at [148] agreeing).

[58] Kalwan (n 4) [6] (Vice President O'Connor).

[59] Anglo Coal (Moranbah North management) Pty Ltd & Anor [2018] QIRC 052, [9] (Deputy President Swan), citing Exemption application re: Palmpoint Pty Ltd [2006] QADT 12, [20].

[60] The Driving Change report (n 34) 8.

[62] The Driving Change report (n 34) 7.

[63] Re The Women's Community Aid Association (Qld) Limited [2011] QCAT 593, [14]-[17] (Senior Member Endicott)

[64] Re: Anglo Coal (Grosvenor Management) Pty Ltd & Ors [2016] QCAT 160 (Senior Member Stilgoe OAM), [32].

[65] Sundale Limited [2019] QCAT 83, [29]-[31] (Member Gordon).

Human Rights and Responsibilities Act 2006

Interpretation Act 1954

Opportunity Act 1995

Anglo Coal (Moranbah North management) Pty Ltd & Anor [2018] QIRC 052

Commonwealth v Grunseit [1943] HCA 47; (1943) 67 CLR 58

Exemption application re Boeing Australia Holdings Pty Ltd and Ors [2003] QADT 21

Exemption application re: Palmpoint Pty Ltd [2006] QADT 12

Lifestyle Communities Ltd (No 3) [2009] VCAT 1869

PJB v Melbourne Health and Anor (Patrick's case') [2011] VSC 327; (2011) 39 VR 373

Re: Anglo Coal (Grosvenor Management) Pty Ltd & Ors [2016] QCAT 160

Re Cram; Ex parte Newcastle Wallsend Coal Co Pty Ltd [1987] HCA 29; (1987) 163 CLR 140

Re: Kalwun Development Corporation Ltd [2019] QIRC 141

Re Kracke and Mental Health Review Board [2009] VCAT 646; (2009) 29 VAR 1

Re The Women's Community Aid Association (Qld) Limited [2011] QCAT 593

State of Queensland v Together Queensland [2012] QCA 353; [2014] 1 Qd R 257

Sundale Limited [2019] QCAT 83

The Australian Institute for Progress Ltd v the Electoral Commission of Queensland & Ors [2020] QSC 54

Re: Ipswich City Council [2020] QIRC 194 (17 November 2020)

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