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Excerpts from this article first published in ‘Human Resources’ Magazine, Issue 61, 28 July 2004
A recent decision
of the Queensland Administrative Decisions Tribunal has clarified
an exception in the Anti-Discrimination Act (Qld) which permits
discrimination on the basis of reasonable superannuation fund
conditions.
A former Queensland police officer was diagnosed with various
psychiatric and depressive disorders. The man made a claim
under his superannuation fund, Q Super, for total and permanent
disablement and provided a psychiatrist's report outlining
his condition. The report suggested that if the benefit was
paid directly to the man he would require 'assistance and
supervision to protect him from bad choices of his own and
predatory members of the general community'. Q Super agreed
to pay the benefit on the basis that arrangements were made
to manage the man's money.
The man claimed that Q Super had directly discriminated against
him, that is, Q Super had treated the man less favourably
than a person who didn't suffer the psychiatric impairments
the man had. Q Super conceded that it had directly discriminated
against the man, but that its actions were exempted pursuant
to a provision of the Act which permitted discrimination against
persons on the basis of ‘reasonable superannuation fund
conditions’. Further, the Q Super Trust Deed permitted
Q Super to pay benefits to certain persons at its discretion.
The Tribunal found that the actions of Q Super were not 'reasonable'
in the circumstances - particularly due to the fact that the
Trust Deed did not define the kinds of mental or physical
ill health or incapacity which permitted Q Super to pay the
benefits to other persons. The Trust Deed also was very broad
in its terms such that it gave no certainty as to the types
of circumstances where the discretion would be applied by
the Trustee or the amount of benefits it may affect.
The Tribunal awarded the man $81,000 in compensation.
HR Tip
Despite the powers and discretion contained in Trust Deeds, Trustees should be careful in exercising their discretion in such matters to ensure that their exercise of their discretion is 'reasonable' and does not conflict with obligations under relevant discrimination laws.
Joanne Ede
Senior Associate
Australian Business Lawyers
