Commissioner For Corrective Services and Commissioner For Equal Opportunity - [2011] WASAT 197

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: HUMAN RIGHTS

ACT: EQUAL OPPORTUNITY ACT 1984 (WA)

CITATION: COMMISSIONER FOR CORRECTIVE SERVICES and COMMISSIONER FOR EQUAL OPPORTUNITY [2011] WASAT 197

MEMBER: MS D TAYLOR (SENIOR MEMBER)

HEARD: DETERMINED ON THE DOCUMENTS

DELIVERED : 30 NOVEMBER 2011

FILE NO/S: EOA 26 of 2011

BETWEEN: COMMISSIONER FOR CORRECTIVE SERVICES
Applicant
AND
COMMISSIONER FOR EQUAL OPPORTUNITY
Respondent

Catchwords:

Application for exemption Sex discrimination Exemption sought to allow prison officer positions to be filled by women Tribunal satisfied exemption would promote the objects of the Equal Opportunity Act 1984 Exemption granted

Legislation:

Equal Opportunity Act 1984 (WA), s 11, s 135(1), s 135(2), s 135(3)
State Administrative Tribunal Acrt 2004 (WA), s 60(2)

Result:

Exemption granted

Category: B

Representation:

Counsel:

Applicant: Ms M Paterson
Respondent: Mr A Macdonald

Solicitors:

Applicant: State Solicitor's Office
Respondent: Commissioner for Equal Opportunity

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

ADI Limited & Ors and Commissioner for Equal Opportunity & Ors [2005] WASAT 259
Commissioner for Equal Opportunity v ADI Limited [2007] WASCA 261
Raytheon Australia Pty Ltd and Commissioner for Equal Opportunity [2008] WASAT 266

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

The superintendent of Bandyup Women's Prison, on behalf of the Commissioner for Corrective Services, applied for a further exemption from the provisions of s 11 of the Equal Opportunity Act 1984 (WA). The Tribunal had granted an exemption in 2006 for five years to enable eight positions for senior prison officers to be reserved for female applicants.
The superintendent applied for a further exemption of five years and to vary the terms on which the exemption was granted so that the number of positions reserved for female applicants could be expressed as a percentage rather than as a set number. She applied for an exemption to permit 50% of senior prison officer positions and 50% of principal prison officer positions at Bandyup Women's Prison to be reserved for female applicants. She also applied for the exemption to be extended to cover Boronia Prerelease Centre for Women.
The Commissioner for Equal Opportunity supported the application for a further exemption on the new terms proposed, but for a period of two years only. She considered some of the workplace practices within the prison service to be contributing to the ongoing problem of recruiting and retaining female prison officers, and that a review of these practices was more likely to occur sooner if the period of exemption were to be limited to two years.
The Tribunal accepted the evidence that, as a direct result of the exemption granted in 2006, a significant increase had occurred in the intervening period in the number of women serving as senior prison officers at Bandyup Women's Prison, but not to the extent that had been hoped for. Significant changes had also taken place in the structuring of the Department of Corrective Services, and a strategic plan had been adopted with the aim of providing the female prison population with a…

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.

Keep reading for free

Create a free CaseChat account to read Commissioner For Corrective Services and Commissioner For Eq... and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2011] WASAT 197
Decision Date: 30 NOVEMBER 2011

CaseChat Overview and Summary

The matter involved the Commissioner for Corrective Services and the Commissioner for Equal Opportunity. The dispute centred on whether an exemption should be granted to allow certain prison officer positions to be filled by women. The application was brought before the tribunal under the Equal Opportunity Act 1984. The tribunal was tasked with determining whether the exemption would facilitate the objectives of the Act.

The central legal issues revolved around whether the exemption would indeed promote the objects of the Equal Opportunity Act 1984, particularly in the context of fostering gender equality in the workforce. This included assessing if the exemption would not only allow for the recruitment of women into these positions but also whether it would contribute positively to broader gender equity goals. The tribunal considered whether such an exemption was necessary and appropriate in the given circumstances.

After reviewing the evidence and arguments presented, the tribunal found that the exemption would indeed promote the objects of the Equal Opportunity Act 1984. The tribunal was satisfied that the exemption would facilitate gender equality by enabling women to be considered for these roles, thereby advancing the objectives of the Act. Consequently, the tribunal granted the exemption, recognising its potential to contribute positively to gender equity within the workforce.

The tribunal's decision resulted in the granting of the exemption sought by the Commissioner for Corrective Services. This decision underscored the tribunal's commitment to promoting gender equality and ensuring that the Equal Opportunity Act 1984's objectives were upheld.

Orders