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ANNETCO INC

Legal Legal
Friday 14 December, 2012

HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION

REASONS FOR DECISION

IN RESPECT OF AN APPLICATION FROM ANNETCO INC
FOR A GRANT OF TEMPORARY EXEMPTION UNDER SECTION 44 OF THE SEX
DISCRIMINATION ACT 1984
(SDA)

1. THE EXEMPTION APPLICATION

1.1 The applicant

The applicant, Annetco Inc (formerly WiN Support Services), is a “government
funded not for profit organisation which provides services to people
with a disability, the aged and their families/carers. Through the delivery
of culturally appropriate specialist support services [the applicant]
aims to empower people to live independently in the community and is
able to offer support on an individual basis”.

The applicant’s funding comes solely from the Victorian and Commonwealth
governments.

The applicant is Victorian based.

The applicant provides its services through nine programs:

  1. David House Adult
    Training Centre

    (92 clients – a range of programs delivered to intellectually
    disabled adults to encourage independence and skill development).
  2. Flexible Care service
    (20 clients – personal and home care delivered to persons
    with dementia in their own homes).
  3. Community Aged Care Packages
    (205 clients – personal, home care and other support for daily
    living needs delivered to persons with complex care needs in their
    homes. It is a Commonwealth government funding requirement that 80%
    of service in the northern metropolitan area and 25% of service in
    the East and Loddon Mallee region be provided to people from ethnic
    minorities).
  4. Coordinated Support service
    (400 clients – a range of personal care, home services, respite
    care and assistance with daily living needs delivered to aged, disabled
    and their carers in Melbourne metropolitan area).
  5. Shared Supported Accommodation Program
    (45 clients – supported accommodation provided to adults with
    a disability who are unable to live independently, or with a family
    or carer).
  6. Veterans Home Care
    (410 clients - assists veterans and war widows/ers to remain living
    in their homes by providing them with personal care, home care, garden
    maintenance and respite care).
  7. After Hours Response Team
    (4000 clients – provides emergency or unplanned service by
    telephone or in-home support, being personal care and home care).
  8. Job Connections
    (120 clients – assists persons with a disability to gain employment.)
  9. Direct Support Service.
    (Support worker staffing unit. Services all programs providing in-house
    service. This unit comprises 120 support workers. The Shared Supported
    Accommodation Program has another 55 support workers).

1.2 The specifics of the
exemption sought

The applicant seeks the following exemption:

“WiN Support Services seeks to discriminate on the basis of
sex in the area of employment in relation to:

  1. The advertising of
    vacant positions and offering employment;
  2. Allocation of work
    to existing employees”

The exemption is sought in respect of “those staff who work directly
with clients”.

The specified Position Tasks of these Support Workers include the provision
of ‘personal care’ (detailed further in 1.3.1 below) and
general household and other related tasks such as cleaning, shopping
and assisting clients into transport. These Support Workers must be able
to work across the range of programs mentioned above.

1.3 Why an exemption is
sought

1.3.1 The client’s need for the support
worker to be of a particular gender

The applicant seeks an exemption in order to:

“1. Preserve the privacy and decency of WiN Support Services’ clients
in the provision of personal care which includes but is not limited
to, assistance with the following:

  1. Fitting of clothing,
  2. Showering/bathing,
  3. Toileting,
  4. Lifting,
  5. Grooming,
  6. Administration of medications into bodily orifices,
  7. Other services provided to clients in a complete or partial
    state of undress.

These services may be provided within the client’s own home,
or at WiN Support Services controlled workplaces where clients may
be provided with services. The latter including but not limited to
Community Residential Units, and Adult Training Centres.

2. To ensure compliance with State and Federal Government funding
and service agreements. WiN Support Services provides services to clients
from culturally and linguistically diverse backgrounds, and as such
is required to provide services to clients which are culturally appropriate.
Some clients for religious or other cultural reasons require services
to be provided by a person of a particular sex.”

The applicant notes that sometimes where a request is made by a client
for a support worker of a particular gender there may be a blurring
as to whether the reason is based on modesty or is culturally based.
The applicant also notes that where a support worker is required of
a particular gender for culturally appropriate reasons this may extend
beyond ‘personal
care’ duties to the provision of other domestic duties.

The applicant states that it is not feasible to employ staff purely
for ‘personal care’ duties. It says,

“[T]here is a crisis in terms of recruitment and retention of
the staff who carry out this type of work. We need to be able to offer
them different types of work when we can so that the number of hours
that they can be offered is maximised. If we do not do this they leave
due to lack of work”.

With regard to the exemption sought for the allocation of work to
existing employees the application originally stated that:

“The exemption is required as it is possible that some employees
of a particular gender, most likely female, will be offered more personal
care shifts than male employees as I am advised there is currently a
preference for females over males at a ratio estimated to be about 3:1.
Where this happens male workers are offered other work in recreation
(assisting clients in recreation shifts for example). The latter shifts
tend be longer (between 4 and 8 hours) as opposed to personal care shifts
which average 1.5 hours. Our current Support Worker Staff pool has a
female to male ratio of 3:1, and WiN Support Services makes every effort
to ensure that no employee is disadvantaged in terms of access to work.
However it is possible on occasions that female and male employees could
be said to have suffered some disadvantage in terms of the number of
hours of work they are offered”.

The applicant has subsequently clarified this to state that no employee
suffers any disadvantage in relation to access to work. There is much
more work available than there are employees to undertake the work. As
a consequence no member of staff would claim that they are discriminated
against in the allocation of work because of their gender. There is no
suggestion this situation is about to change.

1.4 Duration of exemption

The applicant seeks an exemption for the maximum period available under
s 44, namely 5 years. It seeks an exemption for this period as “there
is no likelihood in the foreseeable future that such an exemption would
not be required”.

1.5 Application for an
exemption under the Victorian Equal Opportunity Act 1995

The applicant is Victorian based and has sought a similar exemption
from the Victorian Civil and Administrative Tribunal. On 29 June 2004
the Tribunal granted an exemption to the applicant from various sections
of the Equal Opportunity Act 1995 “to enable the applicant
to advertise for and employ from time to time staff members of a particular
gender for services operated by the applicant for people with a disability,
the aged, their families and carers”.   The exemption was
granted for the maximum 3 year period, expiring on 8 July 2007.

2. POWER OF
THE COMMISSION TO GRANT AN EXEMPTION

Section 44 of the Sex Discrimination Act 1984 (Cth) (the Act)
relevantly provides that the Commission may grant an exemption for conduct
that would otherwise be in breach of Divisions 1 and 2 of Part II of
the Act, (ie sections 14 to 27). In this case the sections in issue are
s 14(1) and (2), discrimination in employment, and possibly s 26, discrimination
in the administration of Commonwealth laws and programs.

Section 44 further provides that an exemption shall be granted for
a specified period not exceeding 5 years. (However, the Commission may,
prior to the expiry of that period, grant a further exemption for up
to 5 years).

The section also states that an exemption may be granted subject to
terms and conditions.

3. THE COMMISSION’S
EXEMPTION GUIDELINES

3.1 The Guidelines

The Commission has formulated “Guidelines on
applications for temporary exemptions under the Sex Discrimination
Act”
. The Commission’s consideration of applications
for temporary exemptions is undertaken in accordance with these Guidelines.

The Guidelines are accessible at: http://www.humanrights.gov.au/legal/sda_exemptions.html

3.2 Criteria
for consideration by the Commission of exemption applications

The guidelines state that the Commission is to have regard to the following
criteria in exercising its discretion (emphasis added):

  1. The applicant
    must show at least an arguable case that the circumstances
    or activities might constitute discrimination to which the [Act] applies.
    If the circumstances are not at least arguably discriminatory within
    the terms of the [Act], then there is no need for the Commission to
    grant an exemption. In considering this question, the Commission will
    have regard to:
  • Whether the circumstances are within the jurisdiction of the
    [Act] (see s 9);
  • Whether any of the permanent exemptions apply (see s 13; ss.30
    to 43);
  • Whether the circumstances can be brought within the special
    measures provision (see s 7D).
  • The exemption must
    be appropriate in light of the objects and scheme of the [Act]. In
    considering this question, the Commission will have regard to:
    • Whether the circumstances, while not falling precisely within
      any of the permanent exemptions to the [SDA], bear a close resemblance
      to any of those exemptions so as to be within the spirit or broad
      scheme of those exemptions. Where an exemption is sought for reasons
      wholly unrelated to the objects of the [Act] (such as to gain commercial
      advantage), an exemption will not be appropriate.
    • The particular circumstances of the case; and
    • The reasonableness of the exemption sought - the Commission
      will weigh up the nature and extent of the discriminatory effect
      against the reasons advanced in favour of the exemption.

    Relevantly, the Guidelines note that:

    Because the [Act] already provides for both permanent
    exemptions and special measures the circumstances in which temporary
    exemptions need to be sought are therefore very limited. As a result
    temporary exemptions are rarely granted.

    4. CONSIDERATION
    OF THE APPLICATION HAVING REGARD TO THE EXEMPTION GUIDELINES

    4.1 Whether the circumstances
    are within the jurisdiction of the Act.

    If the circumstances, the subject of this application, do not come
    within the jurisdiction of the Act then there is no unlawful activity
    for which an exemption could be required.

    Complaint by a male complainant

    The application of the Act is subject to certain limitations which
    are set out in s 9. The application of the Act in respect of discrimination
    against men is more restricted than it is for discrimination against
    women. However, s 9 does not restrict a male complainant from bringing
    a complaint under s 26 (discrimination in the administration of Commonwealth
    laws and programs). As the applicant administers some of its programs
    pursuant to Commonwealth government funding it is possible that a complaint
    may be brought under s 26 by a male who is discriminated against in relation
    to the offering of employment.

    Complaint by a female complainant

    The applicant advises that the situation might also arise when it would
    need to discriminate against a female applicant for employment. For example,
    where needing to employ a male in preference to a female to maintain
    the appropriate staff balance. In such a case a complaint might be brought
    under s 14(1).

    Accordingly, it would appear that the circumstances, the subject of
    this application, come within the jurisdiction of the Act.

    4.2 Whether the actions
    are already covered by the ‘genuine occupational qualification’ exemption
    in s 30.

    The guidelines require consideration of whether the actions sought
    to be exempted ie (i) advertising of vacant positions, (ii) offering
    employment and (iii) allocation of work amongst existing employees, are
    already protected by the genuine occupational qualification exemption
    in s 30. Section 30 provides:

    1. Nothing in paragraph 14(1)(a) or (b), 15(1)(a) or (b) or 16(b)
      renders it unlawful for a person to discriminate against another person,
      on the ground of the other person's sex, in connection with a position
      as an employee, commission agent or contract worker, being a position
      in relation to which it is a genuine occupational qualification to
      be a person of the opposite sex to the sex of the other person.
    2. Without limiting the generality of subsection (1), it
      is a genuine occupational qualification, in relation to a particular
      position, to be a person of a particular sex (in this subsection referred
      to as the relevant sex) if:
      1. the duties of the position can be performed only by a person
        having particular physical attributes (other than attributes of strength
        or stamina) that are not possessed by persons of the opposite sex to
        the relevant sex;
      2. the duties of the position involve performing in a dramatic
        performance or other entertainment in a role that, for reasons of authenticity,
        aesthetics or tradition, is required to be performed by a person of
        the relevant sex;
      3. the duties of the position need to be performed by a person
        of the relevant sex to preserve decency or privacy because they involve
        the fitting of clothing for persons of that sex;
      4. the duties of the position include the conduct of searches
        of the clothing or bodies of persons of the relevant sex;
      5. the occupant of the position is required to enter a lavatory
        ordinarily used by persons of the relevant sex while the lavatory is
        in use by persons of that sex;
      6. the occupant of the position is required to live on premises
        provided by the employer or principal of the occupant of the position
        and:
        1. the premises are not equipped with separate sleeping accommodation
          and sanitary facilities for persons of each sex;
        2. the premises are already occupied by a person or persons of
          the relevant sex and are not occupied by any person of the opposite
          sex to the relevant sex; and
        3. it is not reasonable to expect the employer or principal
          to provide separate sleeping accommodation and sanitary facilities
          for persons of each sex;
      7. the occupant of the position is required to enter areas ordinarily
        used only by persons of the relevant sex while those persons are in
        a state of undress; or
      8. the position is declared, by regulations made for the purposes
        of this paragraph, to be a position in relation to which it is a genuine
        occupational qualification to be a person of a particular sex.

    4.2.1 Application of s 30 to ‘offering
    employment’

    As a result of s 30(1) the unlawful discrimination provisions contained
    in 14(1)(a) (‘arrangements made for the purpose of determining
    who should be offered employment’) and s 14(1)(b) (‘determining
    who should be offered employment’) will not be available to a complainant
    where it is a genuine occupational qualification of the position in issue
    that the occupant of the position be of the opposite sex to the complainant.

    ‘Genuine occupational qualification’ is not defined. However,
    s 30(2) sets out, ‘without limiting the generality of subsection
    (1)’, a number of instances where genuine occupational qualification
    will arise.   Subsections 30(2)(c), (d), (e) and (g), by way of
    example, indicate that s 30(1) intends to cover employment where decency
    is centrally in issue. The application for exemption is sought in order
    to, “1. Preserve the privacy and decency of WiN Support Services
    clients in the provision of personal care . .”. The provision of ‘personal
    care’, as described by the applicant, centrally involves the issue
    of decency. Duties involved in ‘personal care’ such as toileting
    and bathing are clear examples. Another of the duties of providing ‘personal
    care’ is described as the ‘fitting of clothing’. Section
    30(2)(c) provides a specific exemption where a duty of the position is ‘fitting
    of clothing’ and a person of a particular sex is required for the
    sake of decency. Accordingly, it would seem that s 30(1) applies to the
    circumstances outlined in this application.

    The guidelines indicate that before an exemption can be granted the
    applicant must ‘ show at least an arguable case that the circumstances
    or activities might constitute discrimination’ . As the permanent
    exemption provided for under s 30(1) would appear to cover the circumstances
    outlined in this application, the issue of a grant of an exemption under
    s 44 does not arise.

    The application also refers to the fact that whilst some clients require
    support staff of a particular gender for reasons of modesty, others require
    support staff of a particular gender for cultural or religious reasons
    and that this factor might also determine whether a person of a particular
    gender is offered employment. As, for the reasons mentioned in the paragraph
    above, the position of support worker would appear to be covered by s
    30(1), then it would seem additional factors such as those relating to
    culture or religion are not determinative in consideration of the application.  

    4.2.2 Application of s 30 to ‘advertising
    of vacant positions’

    There is no specific ground of discrimination in the Act in respect
    of ‘advertising of vacant positions’. It may come within
    s 14(1)(a) (‘arrangements made for the purpose of determining who
    should be offered employment’) which is considered above. Section
    86 provides an offence of publishing an advertisement that indicates
    an intention to do an act that is unlawful under Part II of the Act (prohibition
    of discrimination). Section 44 does not provide for an exemption to be
    granted in respect of the publication of an advertisement in breach of
    s 86. However, no issue arises under s 86 where a s 30 exemption applies.

    4.2.3 Application of s 30 to ‘allocation
    of work’

    Section 30 only relevantly applies in relation to s 14(1)(a) (‘arrangements
    made’ for employing someone) and to s 14(1)(b) (determining who
    should be employed). However, discrimination flowing from the allocation
    of work would likely come under s 14(2)(a) ‘terms and conditions
    of employment that the employer affords the employee’, s 14(2)(b)
    concerning the provision of benefits associated with employment, or s
    14(2)(c) concerning ‘subjecting the employee to a detriment’.

    Accordingly, the permanent exemption provided for by s 30 will not
    apply to the ‘allocation of work to existing employees’.
    As the permanent exemption in s 30 does not apply the issue is whether
    an exemption should be granted under s 44 in respect of ‘allocation
    of work’

    The application does not reveal discriminatory treatment on the part
    of the applicant towards either men or women in the allocation of work.
    There is more work available than there are staff able to undertake it.
    There is no suggestion that this situation is about to change. The guidelines
    indicate that before an exemption can be granted the applicant must ‘ show
    at least an arguable case that the circumstances or activities might
    constitute discrimination’ . There is currently no discriminatory
    treatment in the allocation of work, and no suggestion that is about
    to change. Accordingly, in these circumstances it is not appropriate
    to grant an exemption. Should the circumstances change the applicant
    is able to reapply for an exemption.

    5. CONCLUSION

    For the reasons set out above it is the view of the Commission that
    the exemption applied for under s 44 of the Sex Discrimination Act
    1984
    (Cth) by Annetco Inc not be granted.

    John von Doussa
    QC

    President
    Human Rights and Equal Opportunity Commission

    24 November 2004

    Last
    updated 20 October 2005.