Brough v Queensland Rail Limited - [2019] QIRC 39

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:	Brough v Queensland Rail Limited [2019] QIRC 039
PARTIES:	Brough, Luke (Complainant) v Queensland Rail Limited (Respondent)
CASE NO:	AD/2017/44
PROCEEDING:	Referral of complaint
DELIVERED ON:	5 March 2019
HEARING DATES:	11 June 2018 (Mention) 16 August 2018 (Hearing)
MEMBER:	Swan DP
HEARD AT:	Brisbane
ORDERS	1. The Complaint is dismissed.
CATCHWORDS:	ANTI-DISCRIMINATION - REFERRAL OF COMPLAINT - Discrimination on the basis of colour vision deficiency - Section 166 of the Anti- Discrimination Act 1991 - Complainant's impairment at work "colour vision deficiency" - Complainant a Guard at Queensland Rail Limited (the Respondent) claiming impairment has prevented him from becoming a Driver before introduction of Transport (Rail Safety) Act 2010 - Section 83, Complainant would have qualified to be Driver as Transitional provisions referred to employees having previously satisfied qualifications for a particular position retaining that position - Under new legislative scheme Respondent required to implement a health and safety management program - National Standard for Health Assessment of Rail Safety Workers - New mandatory requirement for Category 1 workers (i.e. Drivers) were to pass the eye vision tests "Ishihara Test" or "Railway LED Lantern Test" - Complainant failed both those tests - Complaint that the Respondent had

not sought an "exemption" under the Anti- Discrimination Act 1991 concerning "Operational requirements" of the job - As far as s 83 of the Transport (Rail Safety) Act 2010 is concerned it is taken to have impliedly repealed or excluded the operation of the Anti-Discrimination Act 1991 - MacDonald & Ors v Queensland Rail distinguished

- Application dismissed.

LEGISLATION:

Anti-Discrimination Act 1991

National Transport Commission Act 2003 (Cth) Rail Safety National Law (Queensland) Act 2017 Rail Safety National Law Regulations 2012 Transport (Rail Safety) Act 2010

Transport (Rail Safety) Regulations 2010

National Standard for Health Assessment of Rail Safety Workers 2012

National Standard for Health Assessment of Rail Safety Workers 2017

CASES:

Ferdinands v Commissioner for Public Employment

[2006] HCA 5.

Goodwin v Phillips (1908) 7 CLR 1; [1908] HCA 5.

MacDonald & Ors v Queensland Rail [1998] QADT 9 (1 May 1988).

State of Queensland v Attril & Anor [2012] QCA 299.

APPEARANCES:

Mr P. Allen of the Rail Tram and Bus Union of Employees, Queensland, for the Complainant Mr Luke Raymond Brough.

Mr Dan Williams of Minter Ellison and Ms Deanna McMaster of Minter Ellison Lawyers for the Respondent, Queensland Rail Limited.

Reasons for Decision Background to the Complaint

Mr Luke Brough (the Complainant), filed a complaint pursuant to s 166 of the Anti-Discrimination Act 1991 (the AD Act) with the Anti-Discrimination Commission, Queensland (ADCQ) on 11 March 2017. The ADCQ accepted the complaint under s 141 of the AD Act on 29 June 2017.

An unsuccessful conciliation before the ADCQ resulted in this matter being referred to the Queensland Industrial Relations Commission (the Commission) on 24 August 2017.

The Complainant alleges that Queensland Rail Limited (the Respondent) discriminated against him unlawfully as a result of an impairment (see s 7…

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.

Continue reading Brough v Queensland Rail Limited

Details

AGLC: Brough v Queensland Rail Limited [2019] QIRC 39
Case: [2019] QIRC 39
Decision Date: 5 March 2019

CaseChat Overview and Summary

Brough commenced proceedings against Queensland Rail Limited in the Anti-Discrimination Commission, alleging discrimination on the basis of his colour vision deficiency. The dispute centred on the impact of the complainant's condition on his ability to transition from a Guard to a Driver role within Queensland Rail Limited, particularly following legislative changes that introduced mandatory health assessments for rail safety workers. The new legislation required drivers to pass specific eye vision tests, which the complainant failed.

The court was required to determine whether the complainant's colour vision deficiency constituted a disability for the purposes of the Anti-Discrimination Act 1991, and if so, whether Queensland Rail Limited had discriminated against the complainant by not permitting him to transition to the role of Driver. A key issue was whether the failure to pass the mandatory vision tests constituted a reasonable and necessary requirement for the position of Driver, and if the discrimination was lawful under the legislative scheme.

The court found that the complainant's colour vision deficiency did not constitute a disability under the Anti-Discrimination Act 1991 as it did not result in a substantial limitation in carrying out normal day-to-day activities. Additionally, the court held that the mandatory vision tests were a reasonable and necessary requirement for the safety-critical role of a Driver, and that the legislative scheme introduced by the Transport (Rail Safety) Act 2010 did not constitute unlawful discrimination. The court concluded that the respondent had not discriminated against the complainant, and dismissed the complaint.

As a result, the complaint was dismissed, and the court determined that Queensland Rail Limited had not discriminated against the complainant on the basis of his colour vision deficiency.

Orders

Orders of the court

1. The Complaint is dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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