Questions and Answers

In dealing with telephone enquiries and complaints, we’re often asked questions about issues which may involve exemptions.
Exemptions are covered under the Queensland Anti-Discrimination Act 1991 (the Act). Simply put, an exemption means that behaviour which would normally be considered unlawful discrimination, isn’t in certain circumstances.
The Act outlines a range of exemptions, both general and specific. Here are some examples of cases which might involve arguing an exemption.

Question: We want to advertise for a new staff member. We’re a small organisation dealing mainly with young people, and we have positions for two counsellors.
We already have a male counsellor, so we’d like to advertise specifically for a female counsellor so we have a gender balance, and so young people can feel comfortable about making a choice on who to talk to.
Can we do this?

Answer: This is a bit more complex than it looks at face value. Under the Act, it would be unlawful discrimination to advertise specifically for a female counsellor. We could receive complaints alleging discrimination on the basis of sex in the area of work.

If we were to accept such a complaint, we’d ask you for a response. In that response, you might raise the issue of an applicable exemption. In this case, you might argue the 'genuine occupational requirements' exemption, or one of the general exemptions such as the 'welfare' or 'equal opportunity' exemption.

Rather than discuss each of these here, it would probably be more useful to ring the Commission, and speak to someone before lodging the advertisement.

Alternatively, you might want to write to the Commission, including as much detail as you can about the position, who the client group is, numbers seen by the counsellors (including a gender breakdown) and any other useful data, and ask for our views on advertising.

Question: I’ve been working since I was 16, and have been in this job for a few years now. I’m good at what I do and love the job.
My employer has just put on another worker who’s my age, and is paying her the same wage as me. I think this is unfair, and I should be paid more because of my experience.

Answer: While it might seem unfair that a new worker is being paid as much as you are, despite the fact that you have more experience, the Commission can only deal with issues that come under the Act.

For us to take a complaint, you’d need to show you’d been dealt with less favourably on the basis of one of the grounds covered under the Act (such as your age, sex, disability etc) and in an area under the Act (for example your work), than someone without the ground would have been treated in similar circumstances.

From what you’ve said, you think you’ve been treated unfairly, not because of your age, but because your experience hasn’t been recognised. If this is the case, we couldn’t take a complaint from you, because it’s not based on one of the grounds covered.

You could check our website at www.adcq.qld.gov.au for more information about the types of things that are covered.

You might also want to approach your boss, and see if you can negotiate a pay rise based on your experience, or give your union a ring and get some advice.

The other thing you might be interested in is one of the exemptions under the Act. This one refers to 'youth wages', and says that a person can pay a worker who is under 21 years of age according to the worker’s age.

Question: I have an employee who was recently injured at work, and had to take a few weeks off. As part of his rehabilitation program, I agreed to keep him on light duties until he gets the OK from his doctor to come back to the full workload.
He’s been back a week now, and I’ve got a couple of problems. One is that the other workers are saying he’s 'not pulling his weight', and the other is that he’s really keen to do a full workload again, and thinks I’m being unfair to him by saying he can’t. He thinks I’m using his injury to not offer him overtime, but really I’m just following the doctor’s orders.
Where do I go from here?

Answer: Another complex, but not uncommon, enquiry, and one where we’d need more information than we have at present.

Firstly though, it can be unlawful discrimination under the Act, to treat someone less fairly on the basis of their impairment, so we could get a complaint from the worker. If we were to accept it, based on the information he provided, we’d ask for your response.

You'’ probably want to mention the details of his injury and rehabilitation in your response. You might also want to mention the 'workplace health and safety' exemption which states that 'a person may do an act that is reasonably necessary to protect the health and safety of people at a place of work'. This exemption could be raised and argued in a case such as yours, although each one is considered on its merits, so I couldn’t predict any outcomes.

In terms of the other co-workers’ behaviour, you might need to do a bit of training in the workplace, perhaps explaining your obligations under our Act and under workplace health and safety legislation.

Question: (Details from a letter) I work in an Indigenous organisation, where all our staff and clients are Indigenous. We work exclusively within Indigenous communities on issues of importance to Indigenous people. We have a new position here, and I want to advertise it, using words like:
'For this position, it is a genuine occupational requirement that it be filled by an Aboriginal person or a Torres Strait Islander person as permitted by and arguable under Sections 25, 104 and 105 of the Queensland Anti-Discrimination Act 1991.'
Could you please approve this wording for inclusion in the advertisement.

Answer: Thanks for your letter. I’m afraid we can’t 'approve the wording' as you’ve requested.

There are three options you might want to consider. I’ll mention them briefly, but please give the Commission a call if you’d like to discuss any of them further.

Firstly, we can give some advice about your situation, if you want to provide some more details.

More formal options include:
The Commissioner, on your request, seeking an opinion from the Anti-Discrimination Tribunal on whether advertising for an Indigenous person to fill the position might be exempt under the Act. Where the Tribunal gives such an opinion, you’d be able to act according to that advice without fear of a complaint being accepted.

Alternatively, your organisation might apply directly to the Tribunal for a specific exemption from the operation of the Act. If the exemption is granted (initially for up to five years), your agency could act according to the exemption without fear of a complaint being accepted under the Act.

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