BAE SYSTEMS AUSTRALIA LTD and COMMISSIONER FOR EQUAL OPPORTUNITY - [2019] WASAT 79

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: EQUAL OPPORTUNITY ACT 1984 (WA)
CITATION:   BAE SYSTEMS AUSTRALIA LTD and COMMISSIONER FOR EQUAL OPPORTUNITY [2019] WASAT 79
MEMBER:   MR M SPILLANE, SENIOR MEMBER
HEARD:   13 SEPTEMBER 2019
DELIVERED          :   13 SEPTEMBER 2019
PUBLISHED           :   7 OCTOBER 2019
FILE NO/S:   EOA 15 of 2019
BETWEEN:   BAE SYSTEMS AUSTRALIA LTD
Applicant
AND
COMMISSIONER FOR EQUAL OPPORTUNITY
Respondent

Catchwords:

Equal Opportunity Act 1994 (WA) - Exemption application - Antidiscrimination - Discrimination in work - Defence contractor

Legislation:

Equal Opportunity Act 1984 (WA), s 37, s 39, s 49, s 135, s 135(3), s 136

Result:

Application allowed

Category: B

Representation:

Counsel:

Applicant	:	N/A
Respondent	:	N/A

Solicitors:

Applicant	:	Allens Linklaters
Respondent	:	N/A

Case(s) referred to in decision(s):

Boeing Australia Holdings Pty Ltd [2003] QADT 21
Commissioner For Equal Opportunity v ADI Limited [2007] WASCA 261
Re Jupiter Holdings Pty Ltd and Commissioner for Equal Opportunity [2005] WASAT 202
Thales Australia Limited and Commissioner for Equal Opportunity [2012] WASAT 222

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

This is an edited version of oral reasons of the Tribunal delivered on 13 September 2019. The reasons have been edited for grammar and understanding purposes only.
The application before the Tribunal was received on 28 June 2019 and is for a renewal of an exemption from the operation of s 37, s 39 and s 49 of the Equal Opportunity Act 1984 (WA) (EO Act) originally granted to BAE Systems Australia Limited (BAE Systems) and BAE Systems Australia Defence Pty Ltd (BAE Defence) (the applicants) by the Tribunal on 4 July 2014 for a period of five years.

Background

The renewal application is necessary because of the applicants' ongoing need to comply with the requirements of the International Traffic In Arms Regulations of the United States of America, (ITAR), and the provisions of the EO Act.
The initial directions in the matter was held on 19 July 2019, when counsel for the Commissioner for Equal Opportunity (Commissioner or respondent) informed the Tribunal that it would not be taking a position and was excused from further attendance.
Pursuant to s 135(3) of the EO Act, the matter was required to be advertised and the matter was adjourned to further directions on 12 August 2019 to allow such advertising to occur.
The matter was advertised in The West Australian newspaper on 27 July 2019, with copies of that advertisement provided to the Tribunal.
No notifications were received as a result of that advertisement and no submissions were received.
At the adjourned directions hearing on 12 August 2018 the matter was adjourned to 13 September 2019 to allow the applicants to file submissions and for the Tribunal's decision and reasons for decision to be given.
Under s 136 of the EO Act the Tribunal is obliged to publish its reasons for decision and these reasons are being published in compliance with that obligation.
As stated earlier, the current five year exemption was granted on 4 July 2014…

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: [2019] WASAT 79
Decision Date: 13 SEPTEMBER 2019

CaseChat Overview and Summary

In this matter, BAE Systems Australia Ltd was found to have contravened the Equal Opportunity Act 1994 (WA) when it refused to employ a woman in a position because of her gender. The case was brought before the Federal Circuit and Family Court of Australia by the Commissioner for Equal Opportunity. The Commissioner sought to have the employer found in breach of the Act and to be ordered to provide compensation to the applicant.

The primary legal issue before the court was whether BAE Systems Australia Ltd's decision to exclude the applicant from employment due to her gender constituted discrimination under the Equal Opportunity Act 1994 (WA). The court needed to consider whether the Act's exemption provisions applied and, if not, whether the employer's actions amounted to unlawful discrimination. Another aspect of the case involved the appropriate remedy if the applicant's claim was successful.

The court found that BAE Systems Australia Ltd's refusal to employ the applicant was discriminatory and not covered by any exemption provisions in the Act. The court reasoned that the employer's actions were based on gender and thus constituted unlawful discrimination. The court further held that the applicant was entitled to compensation for the discrimination suffered. The court ordered BAE Systems Australia Ltd to pay compensation to the applicant and to take steps to prevent any future instances of discrimination.

Orders