Downer EDI Mining [2013] QCATA 276

CITATION: Downer EDI Mining [2013] QCATA 276 PARTIES: Downer EDI Mining (Appellant) APPLICATION NUMBER: APL122-13 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: C Endicott, Senior Member R M Clifford, Member DELIVERED ON: 15 October 2013 DELIVERED AT: Brisbane ORDERS MADE: Leave to appeal is refused. CATCHWORDS: APPEAL – Application for leave – Anti – Discrimination – Exemption – necessity – section 105 available – discretion Anti-Discrimination Act 1991 ss 105,113 Queensland Civil and Administrative Tribunal Rules 2009 r 101(1)(b)(i) Re AP Eagers Limited [2012] QCAT 567 Re: Boeing Australia Holdings Pty Ltd & related entities [2003] QADT 21. 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 C Endicott, senior member [1] I have read the reasons of Ms Clifford and I agree with them. No basis has been established to grant leave to appeal the decision to refuse the exemption application. -- 1 of 6 -- 2 R Clifford, member [2] Downer EDI Mining is a large mining services contractor. Downer EDI applied for an exemption from the Anti-Discrimination Act 1991 (AD Act) so that it could attract and increase indigenous participation in its workforce without concerns of discrimination being made against it. [3] On 27 February 2013 the Tribunal dismissed the application for exemption. The learned member was satisfied there was no demonstrated need for exemption because firstly section 105 of the AD Act was arguably available and secondly the company was meeting and exceeding its own targets for indigenous employment. [4] Downer EDI filed an application for leave to appeal or appeal and whilst firstly stating that ‘the member seems to have missed the point of the exemption application’ outlines that the grounds of appeal are: (a) We are still open to discrimination charges as if we openly advertise to indigenous people to apply the non indigenous could see that as discriminatory. If we continue with the same advertising without the exemption we are liable to discrimination charges (b) I have additional figures to submit here which detail the fact that we are not actually meeting this year’s targets as the resources sector market has significantly changed and we no longer have as many opportunities to employ inexperienced operators which means there isn’t as much opportunity to employ indigenous unless we designate the roles specifically to this group. [5] Downer EDI seek orders for leave to appeal. [6] In written submissions of July 2010 Downer EDI states it applied for exemption in order to designate, advertise and appoint specific roles to indigenous employees. Downer EDI submits it does not believe the exemption is not required, as reasoned in the original application, as it would still be open to claims of discrimination from non-indigenous applicants who apply. Downer EDI submits it hasn’t been able to advertise specifically for indigenous applicants in the past because it didn’t have the exemption in place and this meant it wasn’t able to meet its indigenous employment targets. Downer EDI also provided a copy of a table entitled Indigenous targets set out for the 2013-2014 financial year. This table also indicated that for the year 2012-13 the target number was 135 positions whilst 93 actual positions were achieved. [7] Downer EDI further provided letters of support for the exemption from the Queensland Resources Council and AMMA – resource industry employer group. [8] The Anti-Discrimination Commissioner provided written submissions, received on 7 August 2013. The submissions provide an overview of the legislation, complaint process and exemption case law. -- 2 of 6 -- 3 [9] The Commissioner submits that the appellant material indicates it is concerned it would be open to claims of discrimination from non- indigenous applicants and that it has not been able to implement its strategy and advertise specifically for indigenous applicants. [10] The Commissioner submits the issue for the Tribunal appears to be whether the Tribunal erred in law in how it construed and applied the principle of necessity to the exercise of its discretion. [11] An appeal on a question of fact or mixed law and fact may proceed only if the Appeal Tribunal grants leave to appeal.1 [12] In its application Downer EDI asks that the Appeal Tribunal grant leave. The grounds of appeal state ‘I have additional figures which detail the fact that we aren’t actually meeting this year’s targets’ and that ‘we are still open to discrimination charges’. [13] The Commissioner submits that the issue seems to be whether there was an error of law in how the Tribunal construed and applied the ‘principle of necessity’ to the exercise of its discretion. [14] Although there is only brief specifics in Downer EDI’s grounds/reasons for appeal the Tribunal accepts this application relates to a mixed question of fact and law and thus leave is required. [15] Whether or not leave to appeal is granted is usually addressed according to established principles. Is there a reasonably arguable case of error in the primary decision?2 Is there a reasonable prospect that the applicant will obtain substantive relief?3 Is leave necessary to correct a substantial injustice to the applicant caused by some error.4 Is there a question of general importance upon which further argument, and a decision of the appeals tribunal, would be to the public advantage.5 [16] The AD Act makes it unlawful to discriminate against a person based on certain personal attributes in specific areas of public life. [17] The Act also allows certain circumstances/actions to be excused or excluded from its operation through the application of specific defences and or specific and general legislated exemptions. [18] Responses to a complaint lodged with the Anti-Discrimination Commission may raise a claim that an exemption applies. If such a complaint is ultimately referred to the Tribunal for decision the Tribunal will be required to decide whether the exemption has been established. 1 QCAT Act s 142(3)(b). 2 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41. 3 Cachia v Grech [2009] NSWCA 232 at 2. 4 QUYD op cit 41. 5 Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388 at 389, McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 277 at 578, 580. -- 3 of 6 -- 4 [19] Outside the complaint/referral process a person or an organisation may apply to the Tribunal under section 113 of the AD Act for the grant of an exemption from the Act. The grant of an exemption is discretionary.6 The period of exemption must not be more than 5 years.7 [20] The Queensland Civil and Administrative Tribunal Rules 2009 (QCAT Rules) also provide that an application for exemption, amongst other things, must state the provision of the Act from which an exemption is sought.8 [21] In considering such an application the Tribunal must first consider whether an exemption is necessary. If the Tribunal is satisfied the exemption is necessary it then considers whether the exemption is appropriate and reasonable, whether there are other non-discriminatory ways of achieving the purpose, whether the exemption is in the community interest and whether other persons or organisations support the application.9 [22] Whether the exemption is necessary will firstly rest on whether there are any specific defences or specific or general exemptions already legislated for in the Act and whether those existing exemptions can be applied to the facts surrounding the proposed exemption. [23] The learned member in his decision noted the application by Downer EDI was not clear about which provisions of the Act it wanted to be exempted from, but noted it sought to increase its number of indigenous employees by running a specific campaign. [24] The Anti-Discrimination Commissioner in his original submission suggested, given the circumstances described by Downer EDI, the exemption would be from the operation of sections 14, 15 and 127 in relation to section 7(g). [25] The implied proposal to exempt Downer EDI from the pre-work area, work area and discriminatory advertisements on the basis of race appeared to be accepted by the learned member when he cited the case of Re AP Eagers Limited10 as a comparison case in which section 105 of the Act was discussed and considered in relation to a proposal in that case to employ more women in the automotive sales industry through specific advertisements. [26] It is clear on the face of it that if any company were to advertise specifically for indigenous applicants for employment they might run foul of the Act and be at risk from complaints by non-indigenous persons interested in the same employment. 6 AD Act s 113(1). 7 Ibid s 113(6). 8 QCAT Rules r 101(1)(b)(i). 9 Exemption application re: Boeing Australia Holdings Pty Ltd & related entities [2003] QADT 21. 10 RE AP Eagers Limited [2012] QCAT 567. -- 4 of 6 -- 5 [27] However, Part 5 of the Act provides - general exemptions for discrimination and specifically section 105 - entitled Equal Opportunity Measures, provides: (1) 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 this Act. (2) Subsection (1) applies only until the purpose of equal opportunity has been achieved. [28] The learned member considered it was arguable that Downer EDI, in seeking to promote equal opportunity, having regard to the low rate of representation of indigenous people in its workforce, could rely on this general exemption should a complaint arise from its actions. I concur with the learned member’s decision. [29] Downer EDI submits that it would still be subject to complaints. [30] Whilst an exemption, either standing or temporary, may lessen the potential for a complaint being made against an organisation, no exemption on its own can prevent complaints from being made. The Tribunal does not consider the complete elimination from the possibility of a future complaint is a required or a reasonable expectation when forming its view whether an exemption is or is not necessary. [31] Although only relatively brief information was provided in the application, the Tribunal considers it could be difficult for a future/potential complainant to argue that this section of the Act could not be reasonably applied in the manner outlined by Downer EDI especially when it relates to one of the most disadvantaged groups in Australia. [32] The Anti-Discrimination Commissioner’s submission noted that in the Re AP Eagers Limited case the Tribunal suggested wording for recruitment advertising where the section 105 equal opportunity measures might apply.11 [33] That option would be open to Downer EDI in its advertising to assist with limiting the potential for any complaint. [34] I am satisfied that the application of section 105 is arguably open to Downer EDI and in the circumstances concur with the learned member that there is no need or necessity to grant an discretionary exemption. [35] Downer EDI also submits that it is not actually meeting its target for indigenous employment, as was found by the learned member, and provides updated ‘targets and actuals’ for 2012/13 year. [36] Whilst the Tribunal agrees that the new figures indicate that Downer EDI has not reached its projected target of 135 positions and that the learned member found it had reached its targets on the earlier figures, I am not 11 Ibid at [17]. -- 5 of 6 -- 6 satisfied that this fact displaces the decision of the learned member that section 105 is arguably open to Downer EDI to rely on. [37] To the contrary, by not achieving its proposed targets to increase the rate of indigenous employment in the mining services industry, the Tribunal is satisfied this fact could strengthen the case that section 105 could arguably be applied to promote equal opportunity for indigenous people in the mining sector industry. [38] The application for leave to appeal is refused. -- 6 of 6 --