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Ballarat Health and Fitness Pty Ltd

Legal Legal
Friday 14 December, 2012

HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION SEX DISCRIMINATION
ACT 1984 (Cth)

Section 44(1)

NOTICE OF GRANT OF A TEMPORARY EXEMPTION

By this instrument, the Human Rights and Equal Opportunity Commission
(‘the Commission’) grants to Ballarat Health and Fitness
Pty Ltd
a temporary exemption pursuant to s 44(1) of the Sex Discrimination
Act (Cth) 1984
(‘the SDA’) in the terms set out in
section 3 below.

1. BACKGROUND

1.1 Ms Melynda Tempest has made an application, on behalf of Ballarat
Health and   Fitness Pty Ltd (‘the applicant’),
for an exemption from the SDA to enable the applicant to operate
an exercise and health centre for males from 16 years of age. The
exemption is sought so that the applicant can:

  • provide health and fitness services to men only; and
  • employ only men as instructors to provide such services.

1.2 It is claimed for the applicant that the centre would provide
services for men who have been ‘unable to join other facilities’ because
of issues such as embarrassment caused by being overweight, poor
self-esteem and the pressure of media and ‘body image’.

1.3 Ms Tempest also states that there is a general failure by men
to look after their health leading to increased problems of stress,
heart disease and obesity. She states that a male only facility
would address the above issues.

1.4 Ms Tempest goes on to state:

I have meet many males during the last 2 years who have come from
sudden broken marriages, they come in with very poor self esteem and
even in some cases have broken down and cried, and these are males
in their 30s, I have come across males who have had health scares or
their friends have passed away, there are men who have highly stressed
careers and want a more private place to exercise. I suppose there
are many reasons why we need a men's only facility but the most important
thing we need is to acknowledge men, their health and contribution
to society.

The facility would be approximately 300sqmts we would run fitness
testing such as blood pressure testing, strength testing, posture analysis
and refer clients to other professionals such as physiotherapist and
doctors. We would run specific classes for males only using machines
designed for non intimidating exercises, men would workout out in a
group of 20 for a period of 30 minutes several times a week they would
also have access to a smaller area to use bikes and treadmills. We
would like to advertise so that it appeals to males who have wanted
to start exercising and feel that this place will be a safe and non
intimidating place to be.

1.5 The applicant states that there are presently
no other male-only facilities in Ballarat. There are, however, two
female-only gyms in the town and the proposed site for the centre would
be near one of them. There are four other ‘mixed’ gyms
in Ballarat.

1.6 Ms Tempest subsequently provided the Commission
with three letters from members of the Ballarat community, expressing
their support for the applicant’s plans to run a male-only gym.

1.7 The applicant also sought an exemption under
the Equal
Opportunity Act 1985
(Vic) to enable it to operate the male-only
facility, to employ only men to staff the facility and to
advertise those matters. That application was granted by
the Victorian Civil and Administrative Tribunal (VCAT) on
19 September 2005. As a part of that process, the applicant
was required to advertise the exemption application in the
Ballarat Courier newspaper. No submissions were received
(for or against the application) by either the applicant
or VCAT.

1.8 The applicant provided the Commission with a
copy of the decision of VCAT for its consideration. The decision of
the Deputy President states:

In my view there is a clear public interest in improving the health
both of men and women. I accept that some men for religious or other
reasons, may feel uncomfortable about exercising in a mixed men’s
and women’s environment, and indeed may not attend. Without a
single sex facilities [sic] such as the one which is proposed, these
men would not have the opportunity to undertake regular and supervised
exercise. The exemption seeks to provide for men a similar choice which
is provided by the women’s only facilities for women. That choice
is either to attend a single sex facility or to attend a mixed sex
facility. In this way the exemption promotes that objective of the
Equal Opportunity Act which speaks of the acceptance and recognition
of everyone’s right to equality of opportunity. This facility
will also contribute to health education of men by providing various
health tests and classes about fitness and nutrition.

1.9 The Commission is obviously not bound by the
decision of VCAT and must exercise its discretion under s 44 of the
SDA independently. The Commission has nevertheless considered the reasons
of VCAT for granting the applicant an exemption under the Victorian
legislation.

1.10 The Commission sought further information from
the applicant in relation to that part of the application that proposed
discrimination against women in employment. In particular, the applicant
was asked why it is necessary to exclude appropriately qualified women
from the staff of the facility.

1.11 In response, Ms Tempest told the Commission
that the gym was intended to be ‘male only’ and it would ‘defeat
the purpose’ to have women working as instructors. Ms Tempest
also stated that all of the women’s gyms in Ballarat have
only women employed as instructors and that it is intimidating
for some men to be in a mixed environment and this includes having
women present as instructors.

2. REASONS FOR DECISION

2.1 The Commission has decided to grant an exemption
to allow the applicant to provide services to men only.

2.2 The Commission has decided not to grant an exemption
in relation to the employment of men only in providing those services.

Exemption Granted: Services for Men Only

2.3 The Commission has considered whether the proposed
activity raises an arguable case of unlawful discrimination under the
SDA. If it does not, it is not necessary for the Commission to grant
an exemption.

2.4 The Commission is of the view that the proposal
to offer health and fitness services only to men as part of a commercial
enterprise does raise an arguable case of discrimination. Section 22
of the SDA provides, relevantly, that it is unlawful for a person to
discriminate on the ground of sex in the provision of services by
refusing to provide a person with those services. It would appear
that none of the permanent exemptions to the SDA, contained in Part
II Division 4, apply to the present case.

2.5 The Commission has also considered whether or
not the proposed centre might constitute a ‘special measure’ as
provided for by s 7D of the SDA. The relevant effect of that section
is that a person does not discriminate against another person on the
basis of sex by taking a ‘special measure for the purpose
of achieving substantive equality’ between men and women.
The Commission is not satisfied that the measure proposed should
be understood in terms of substantive gender equality. While
the apparent purpose of the centre is to address a particular
disadvantage claimed by the applicant, this disadvantage is described
by the applicant as being a feature of a range of social factors
relating to matters such as relationship breakdown, stress and
poor self-esteem, rather than a matter of substantive equality
between men and women. The Commission is therefore of the view
that the proposed fitness centre is not a ‘special measure’.

2.6 The Commission accepts, however, that some men
may face difficulties in exercising in a ‘mixed’ environment
for reasons such as poor self-esteem, obesity or ‘body image’.
While anecdotal, the Commission accepts that this is a problem
that Ms Tempest has identified through her experience working
as a health and fitness centre proprietor. The Commission finds that
a ‘male only’ facility would provide an opportunity
for such men to improve their health and fitness and this will
be a benefit to them.

2.7 Significantly, members of the Ballarat community
have access to a number of other health and fitness facilities. There
are four ‘mixed’ gyms
and two gyms for women only. Therefore the discrimination proposed
by the applicant will not, in the Commission’s view, create
or perpetuate inequality between men and women or disadvantage
women. Women excluded from the centre proposed by the applicant
will be able to seek access to equivalent facilities in a number
of other places in Ballarat. The Commission has taken this into
account in assessing the reasonableness of the exemption sought.

2.8 The Commission also notes that the applicant
has advertised its intention to open a ‘male only’ centre
and no objection has been raised.

Exemption Not Granted: Employment of Men Only

2.9 The applicant seeks to discriminate against
women by employing only men as instructors in its centre. On its face,
this would appear to constitute discrimination contrary to s 14 of
the SDA which prohibits discrimination in employment on the ground
of sex.

2.10 There is no issue of ‘special measures’ in
relation to this aspect of the application as there is no suggestion
that gender inequality has an impact upon male fitness instructors
seeking employment.

2.11 The essence of the applicant’s argument
is that it is an essential part of the service to be provided by the
applicant that instructors be male. If this is so, the proposed discrimination
would seem to fall within the exemption provided for by s 30(1)
of the SDA and is accordingly not unlawful. Section 30(1) provides,
relevantly, that it is not unlawful to discriminate against people
of one sex in determining who should be offered employment ‘if
it is a genuine occupational qualification to be a person of
the opposite sex’. If this exemption is satisfied, it is
not necessary for the Commission to grant the applicant a temporary
exemption.

2.12 The Commission is not satisfied, however, on
the evidence provided by the applicant, that it is a ‘genuine
occupational qualification’ for
all instructors in the proposed centre to be male. In particular,
the Commission is not satisfied that appropriately qualified
women would be unable to provide services in a manner that is
sensitive to the problems that Ms Tempest has identified. The
Commission is not satisfied that the mere presence of women as
instructors acting in a professional capacity would prevent men
from accessing the service proposed by the applicant.

2.13 The Commission has therefore decided that this
aspect of the application should not be granted as it is not necessary
for the applicant to achieve its purpose of providing health and fitness
services to men. Either it is a ‘genuine occupational qualification’ that
instructors be male, in which case s 30(1) applies, or it is
not, in which case appropriately qualified women will be able
to provide the services contemplated.

2.14 In considering the reasonableness of the exemption
sought, the Commission has also taken into account that the discrimination
proposed by this aspect of the application would disadvantage
qualified women fitness instructors seeking employment in Ballarat.
This is a factor that weighs against the granting of an exemption
in relation to the employment of men only.

2.15 The Commission is of the view that the preferable
approach is for the applicant to recruit for instructors based on their
qualifications, which may include an awareness of the issues facing
men identified in the application and possession of relevant professional
skills and attributes to deal with such issues, rather than based
on their sex. The Commission is not satisfied that women will necessarily
lack the necessary qualifications.

2.16 It may be noted that while the Commission is
not satisfied on the evidence before it that it is a ‘genuine
occupational qualification’ for instructors in the proposed centre
to be male, this does not prevent the applicant from relying on
the exemption in s 30(1) should it maintain a contrary view.

3. TERMS OF EXEMPTION

3.1 The Commission grants Ballarat Health and
Fitness Pty Ltd an exemption from the operation of s 22 of the Sex
Discrimination Act 1984
(Cth) for a period of five (5) years.
This exemption applies in relation to the operation of one (1) centre
in Ballarat, Victoria, to provide health and fitness services for men
only.

Dated this 7th day of November 2005

 

Signed by the President, John von Doussa QC, on behalf of the Commission.

Please note
Subject to the Administrative Appeals Tribunal Act 1975,
application may be made to the Administrative Appeals Tribunal for
a review of a decision to which this notice relates by or on behalf
of any person or persons whose interests are affected by the decision.

Human Rights and Equal Opportunity Commission Website: Legal Information
Last
updated 10 November 2005.