BAE SYSTEMS AUSTRALIA LTD - [2008] SAEOT 1

EQUAL OPPORTUNITY TRIBUNAL
(District Court Administrative and Disciplinary Division)
In the Matter of AN APPLICATION FOR EXEMPTION UNDER THE EQUAL OPPORTUNITY ACT 1984
BAE SYSTEMS AUSTRALIA LTD
[2008] SAEOT 1
Reasons for Decision of His Honour Judge Herriman, Member Ms A Bachmann and Member Yapp
21 January 2008
DISCRIMINATION LAW
Application for exemption in order to discriminate on grounds of nationality - applicant's principal business is in defence contracting work and requires access to security-sensitive material controlled by the government of USA. That government by regulation and contractual controls insists that persons of proscribed nationalities not be able to access it - whether power to exempt under s.92 of Equal Opportunity Act limited to exemptions which will serve purposes of legislation. Discussion of grounds for exemption. Granted.
Equal Opportunity Act 1984 (SA) ss 5, 23, 52, 54, 92; Racial Discrimination Act 1975 (Cwth) ss 9, 15, referred to.
ADI Limited & Ors and Commissioner for Equal Opportunity [2005] WASAT 259; Boeing Australia Holdings Pty Ltd (Anti-Discrimination Exemption) [2007] VCAT 532; Pulteney Grammar School v Equal Opportunity Tribunal & Ors [2007] SASC 308, applied.
Exemption application re: Boeing Australia Holdings Pty Ltd & Ors [2003] QADT 21; Stevens v Fernwood Fitness Centres Pty Ltd (1996) EOC 92-782; Exemption Application re Mt Isa Mines Ltd [2001] QADT 16; City of Brunswick: re Application for Exemption from Provisions of Equal Opportunity Act 1984 (1992) EOC 92-450; Plaintiff S 157/2002 v Commonwealth (2003) 211 CLR 476; Jupiter Holdings Pty Ltd and Commissioner for Equal Opportunity [2005] WASAT 202, discussed.

BAE SYSTEMS AUSTRALIA LTD
[2008] SAEOT 1
Introduction

BAE Systems Australia Limited (“BAE” or “the applicant”) has applied under section 92 of the Equal Opportunity Act 1984 (SA) (“the Act”) for an exemption from the provisions of sections 52 and 54 of the Act with respect to particular employment practices it wishes to adopt and which if not exempted would constitute breaches of the Act.
The Commissioner for Equal Opportunity has appeared on the application, as of right, and has opposed it. For convenience we shall hereafter refer to the Commissioner as “the respondent”.
Sections 52 and 54 of the Act provide as follows:
52. (1)It is unlawful for an employer to discriminate against a person on the ground of race –
(a) in determining, or in the course of determining, who should be offered employment;
or
(b) in the terms or conditions on which employment is offered.
(2)It is unlawful for an employer to discriminate against an employee on the ground of race –
(a) in the terms or conditions of employment;
(b) by denying or limiting access to opportunities for promotion, transfer or training, or to any other benefits connected with employment;
(c) by dismissing the employee;
(d) by segregating the employee from persons of other races;
or
(e) by subjecting the employee to any other detriment.
…
54. (1)This section applies to a principal for whom work is done by contract workers in pursuance of a contract…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2008] SAEOT 1
Decision Date: 21 January 2008

CaseChat Overview and Summary

In the Equal Opportunity Tribunal of South Australia, BAE Systems Australia Limited sought an exemption from the Equal Opportunity Act 1984 (SA) to enable it to discriminate on the basis of nationality in its employment practices. This was necessary because the company had entered into contracts with the Australian Defence Force and others which required it to have access to security-sensitive material controlled by the government of the United States. That government, by regulation and contractual controls, insisted that persons of proscribed nationalities not be able to access such material. The Tribunal was required to decide whether it had the power to grant such an exemption, and if so, whether in all the circumstances, the exemption should be granted. The Tribunal decided that it did have the power to grant the exemption, that it was not limited to granting exemptions which would serve the purposes of the Act, and that in the particular circumstances of the case, the exemption should be granted. The Tribunal found that the applicant had no significant control or influence over the restrictions placed by the United States on its access to controlled material. It also found that the application of the general prohibitions contained in sections 52 and 54 of the Act would be unreasonably harsh or burdensome and that the wider public interest justified the granting of an exemption. The exemption was granted subject to particular conditions and monitoring.

Orders