Re: Ipswich City Council [2020] QIRC 194

Date: 17 November 2020
Court/Tribunal: Queensland Industrial Relations Commission
Judicial Officer/Tribunal Member: Merrell DP
Human Rights Act 2019 (Qld) Sections: s 5, 7, 8, 9, 13, 15, 48, 58
Rights Considered: Right to recognition and equality before the law.
Other Legislation: Acts Interpretation Act 1954, s 14A; Anti-Discrimination Act 1991, s 7(a), 14, 15, 104, 105, 113, 124, 127, 174B; Charter of Human Rights and Responsibilities Act 2006 (Vic), s 4, 8, 32, 38; Equal Opportunity Act 1995 (Vic), s 83; Industrial Relations Act 1999, ch 6, s 334; Industrial Relations Act 2016, s 429, 447, 544.
Keywords: Discrimination; Education, Training and Employment; Public Entity.

The case concerned an application seeking an exemption from the operation of s 14 and s 15 of the Anti-Discrimination Act 1991 (Qld) for the purposes of undertaking an affirmative action recruitment plan that targets only female waste truck drivers. The Commission was satisfied that the exemption was compatible with human rights and granted the exemption to the Ipswich City Council for a period of three years.

Ipswich City Council sought an exemption pursuant to s 113(1) of the Anti-Discrimination Act 1991 (Qld) from the operation of the s 14 and s 15 of the Act, so it can undertake an affirmative action recruitment plan that targets only female truck drivers: at [1].

In deciding whether to grant an exemption, the commission considered itself bound by s 58 of the Human Rights Act 2019 (Qld) as they were acting in an administrative capacity: at [36]. The commission also noted that they must comply with s 48 in interpreting s 113 of the Anti-Discrimination Act 1991 (Qld): at [35].

The Commission identified that granting the exemption may affect the human rights contained in s 15(3) and 15(4) of the Human Rights Act 2019 (Qld), by affecting the person’s entitlement to the protection of law without discrimination and the person’s right to equal and effective protection against discrimination: at [50]. However, the commission stated that if the council can establish that the measure is within the meaning of s 15(5), the measure is not a discrimination within the meaning of s 15(3) and s 15(4), thus there is no need to consider s 13(2) of the Human Rights Act 2019 (Qld): at [52].

The Commission held that women who wish to be employed as drivers are disadvantaged within the meaning of s 15(5) of the Human Rights Act 2019 (Qld) due to discrimination: at [64]. As the measure does not constitute discrimination, the purposive construction of s 113(1) of the Act is compatible with human rights: [at 74].

An exemption for a period of three years was granted.

Visit the judgment: Re: Ipswich City Council [2020] QIRC 194