Australian Iron & Steel Pty Limited v Banovic

Australian Iron & Steel Pty Limited (AIS) applied to the High Court of Australia for special leave to appeal a decision of the New South Wales Court of Appeal. The dispute concerned the application of section 24(3) of the New South Wales Anti-Discrimination Act, which prohibits indirect discrimination. AIS had retrenched ironworkers based on a "last-on/first-off" principle, resulting in the retrenchment of more men than women in absolute numbers, though a slightly lower percentage of the male workforce compared to the female workforce. The Anti-Discrimination Tribunal and the Court of Appeal had both found that this policy constituted indirect discrimination under section 24(3).

The central legal issue before the High Court was the proper construction of section 24(3) of the Anti-Discrimination Act. Specifically, the court had to determine how to assess whether a requirement or condition imposed by an employer disadvantages a substantially higher proportion of persons of a particular sex. The applicant, AIS, argued that the Court of Appeal erred in its interpretation of the section, particularly concerning the method of comparison required to establish indirect discrimination.

The High Court considered various interpretations of section 24(3) that had been canvassed in the Court of Appeal. The applicant contended that the correct approach involved comparing the proportion of men retained in employment with the proportion of women retained, and that a simple numerical comparison, as adopted by the Chief Justice of the Court of Appeal, was insufficient. The applicant argued that the section required a comparison of proportions of the respective sex components of the workforce, not a direct numerical comparison between the sexes. The court was asked to determine whether the "last-on/first-off" policy, despite retrenching more men in absolute terms, did not disadvantage a substantially higher proportion of men than women, thereby not attracting the operation of section 24(3).