Downer EDI Mining [2013] QCAT 99

CITATION: Downer EDI Mining [2013] QCAT 99 PARTIES: Downer EDI Mining (Applicant) APPLICATION NUMBER: ADL113-12 MATTER TYPE: Anti-discrimination matters HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: David Paratz, Member DELIVERED ON: 27 February 2013 DELIVERED AT: Brisbane ORDERS MADE: 1. The application is dismissed. CATCHWORDS: Equal opportunity – employment of indigenous workers – targets already being met – no need for exemption – significance of an exemption Anti-Discrimination Act 1991, s 7(g), s 8, s 14, s 15, s 25, s 52, s 105, s 127 Queensland Civil and Administrative Tribunal Rules, r 101 Re A P Eagers Limited [2012] QCAT 567, distinguished APPEARANCES and REPRESENTATION (if any): This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act). REASONS FOR DECISION [1] This is an application for exemption from the Anti-Discrimination Act 1991 (“the Act”). [2] The Applicant, Downer EDI Mining, describes itself as one of Australia‟s largest open-cut mining services contractors. It has a $1.7 billion fleet of open-cut mining equipment. [3] It is seeking to increase indigenous participation in its workforce. -- 1 of 4 -- 2 [4] The application seeks an exemption for 6 years. The purpose stated in the application is: To designate, advertise and recruit indigenous operators for each of the sites we operate at in qld. Six sites in total, with the successful applicants commencing as trainee positions “green operators”. [5] The grounds stated in the application are: Out of 5049 employees within Downer EDI Mining, only 214 of those employed are indigenous. To increase this number we would like to run indigenous specific campaigns to attract and select indigenous employees into these roles – thereby increasing our numbers. We have done this previously with advertising aimed at attracting indigenous candidates and building relationships with community groups but would like to promote the opportunities to the greater communities with two of our key projects moving to Fly in – Fly out options, allowing us to expand our recruitment base. [6] An Applicant for an exemption under the Act must state the provision of the Act from which an exemption is sought (rule 101 of the Queensland Civil and Administrative Tribunal Rules 2009). [7] In the attachment to its application (page1) filed on 20 December 2012, the company specifies that it is seeking exemption from three sections, which it described as follows: Section 8 – Discrimination against applicants and employees Section 51 – advertisements Sections 25 – discrimination against applicants and employees [8] The sections which the company refers to in its application as seeking exemption from are: s 8 which is a definition section as to the meaning of „discrimination on the basis of an attribute‟; s 51 which does not refer to advertising as stated, but is about „special services or facilities required‟; and s 25 which is about „genuine occupational requirements‟. [9] The company describes its „Anticipated outcomes of the exceptions – challenging conventional methodology‟ at page 2 of the attachment, and says: The Mining Industry traditionally employs transient workers from all over Australia, however, in line with the current skill shortage, Companies are leaning more to a „grow your own‟ approach to reducing the skill shortage. To assist in attracting Indigenous people to our business, we have developed specialist recruitment and training methodologies, including a culturally appropriate selection process in place of our standard recruitment process. This is leading to successful operational outcomes. In the last financial year, Downer mining set targets of 135 new Indigenous employees. We successfully on boarded 163 Indigenous recruits, exceeding our target by 28 new „green operators‟, which is the main entry point to the industry. -- 2 of 4 -- 3 It is anticipated that we can and will meet these targets again over the next 12 months and an exemption would allow us to advertise to specifically attract indigenous candidates through the various media outlets, our recruitment portal, indigenous organisations and communities. [10] The Anti-Discrimination Commission Queensland (ADCQ) was invited to comment on the application. In their letter of 10 January 2013, the ADCQ concluded that „On the basis of the information in the application, and subject to the above, the Commission has no objection to the application’. It referred to the following matters: The applicant states it is seeking exemption from the operation of sections 8, 51 and 25 of the [Anti-Discrimination] Act, however if granted, the exemption would be from the operation of sections 14, 15 and 127 in relation to the attribute in section 7(g) of the [Anti-Discrimination] Act. The applicant seeks an exemption for a period of 6 years, however section 113 of the [Anti-Discrimination] Act provides that an exemption is to be granted for specific period of not more than 5 years. [11] The question arises as to whether this application is needed at all, or is well founded. [12] Firstly, it may not be necessary for the applicant to be granted an exemption in order to be protected from a complaint of unlawful discrimination under the Act. [13] I note that in Re A P Eagers Limited [2012] QCAT 567 a large automotive group was seeking to employ more women in sales and service areas, and sought to advertise in gender specific terms for more female employees as sales consultants and in the service advisor roles. The learned member held that: 12. Next, section 105 of the Anti-Discrimination Act 1991 provides a person may do an act to promote equal opportunity for a group of people with an attribute if the purpose of the act is not inconsistent with the Anti-Discrimination Act 1991. This temporary defence only apples until the purpose of equal opportunity has been achieved. This section, dealing with equal opportunity measures, is an example of positive discrimination. 13. Advertising by Eagers specifically targeting women would not be unlawful if Eagers could establish (as an exemption to any claim of discrimination made against them) that the advertising would promote equal opportunity for women in the automotive industry. [14] Similarly in this matter, if the company is seeking to conduct advertisements directed specifically at indigenous people, then it is arguable that it is promoting equal opportunity as allowed by s 105, having regard to the low rate of representation of indigenous people in its workforce, and no exemption is needed. [15] Secondly, it has not been demonstrated that an exemption is actually needed to achieve the aims of the company. -- 3 of 4 -- 4 [16] An exemption from an Act of the State Parliament, to put the company in a different position to other citizens, is not a matter of routine. The Applicant is seeking to have part of the laws of the State not apply to it, and that is a significant matter. In appropriate circumstances, where that is warranted and necessary, then the Tribunal may make such an order, but it is not a given result. [17] The Tribunal always has to have regard to the possible implications of an order. Whilst a blanket exemption may seem benign on its surface in the context of a well meaning application, the Tribunal will be concerned that an unnecessary or overly broad order may deprive citizens and claimants of rights and actions that they would otherwise have. [18] At page 4 of the attachment, the Company sets out a table of its indigenous recruitment: Financial year Indigenous targets set Employed 2010/2011 40 80 2011/2012 135 163 2012/2013 165 [19] A further table is set out at page 5 of the attachment: Project Currently employed Current indigenous employees New target Fy 12 - 13 Commodore 117 0 2 Goonyella 993 20 15 Blackwater 375 22 10 Cracow 207 8 3 Daunia 300 4 Tba Boggabri 439 26 15 [20] These tables, together with the statement referred to that „we can and will meet these targets again over the next 12 months‟ indicate that the company is satisfactorily filling, and exceeding, its targets of indigenous employees under current arrangements. [21] There is therefore no demonstrated need for the company to be exempted from any provisions of the Act. [22] In the circumstances, I am not satisfied that an exemption is required, and the application is dismissed. -- 4 of 4 --