QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
| CITATION: | Brough v Queensland Rail Limited [2019] QIRC 039 |
PARTIES: | Brough, Luke (Complainant) v Queensland Rail Limited |
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of the job - As far as s 83 of the Transport (Rail Safety) Act 2010 is concerned it is taken to have impliedly repealed or excluded the operation of the Anti-Discrimination Act 1991 - MacDonald & Ors v Queensland Rail distinguished - Application dismissed.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: | 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 Goodwin v Phillips (1908) 7 CLR 1; [1908] HCA 5. MacDonald & Ors v Queensland Rail [1998] QADT 9 (1 May 1988). |
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…
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- AGLC
- Brough v Queensland Rail Limited [2019] QIRC 39
- Case
- [2019] QIRC 39
- Decision Date
CaseChat Overview and Summary
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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