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[2015] QCAT 89
General information, not legal advice.
Queensland Civil and Administrative Tribunal
2015-03-30
Original judgment source is linked above.
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).
[1] 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.
[2] 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.
[3] 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.
[4] 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.
[5] 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.
[6] The automatic exemption under s 25 will not protect United Synergies in this case because the ethnicity of employees is not a genuine occupational requirement of the position. Therefore, United Synergies requires an exemption under s 113 of the Anti-Discrimination Act 1991 (Qld).
whether any other person or body supports the application;
whether the exemption is in the community interest;
the effect of not granting the exemption;
and whether the objects or purpose of the exemption can be achieved in a non-discriminatory way[5].
[8] The Anti Discrimination Commission Queensland does not oppose United Synergies' application. There is no information available to the tribunal to indicate whether any other person has a view about the application.
[9] Over the last four years, approximately 4% of United Synergies' employees identified as indigenous. United Synergies has actively promoted traineeships and work placements for indigenous people. It wants to increase the number of indigenous employees in accordance with its vision - 'to create an environment where our communities, our families and every individual achieves: A sense of self, a sense of place, a sense of purpose, a sense of belonging'.
[10] The completion of the reconciliation action plan, and continued work to enhance opportunities for indigenous employment, is in the community's interest.
[11] If I do not grant the exemption, United Synergies will not be able to target indigenous employees for general employment. It is, therefore, less likely to meet the goal that its workforce reflect the diversity of the local community.
[12] United Synergies works with Murawin Pty Ltd, a company that provides Aboriginal consultancy training and advice, and North Coast Aboriginal Corporation for Community Health in creating strategies to increase the Aboriginal and Torres Strait Islander workforce.
[13] Even though United Synergies has engaged with Murawin and North Coast Aboriginal Corporation for Community Health, it perceives a need for additional strategies. I am therefore satisfied that United Synergies cannot achieve its goals by non-discriminatory means.
[14] The exemption should be granted. 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.
[4] Minister for Education and Commissioner for Equal Opportunity and Ors (1987) EOC 92-198.
[5] City of Brunswick; Re Application for exemption from provisions of Equal Opportunity Act (1992) EOC 92-450.