Downer EDI Mining

CITATION: Downer EDI Mining [2013] QCATA 276

PARTIES: Downer EDI Mining
(Appellant)  

APPLICATION NUMBER: APL122-13

MATTER TYPE: Appeals

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: C Endicott, Senior Member
R M Clifford, Member

DELIVERED ON: 15 October 2013

DELIVERED AT: Brisbane

ORDERS MADE: Leave to appeal is refused.

CATCHWORDS:

APPEAL – Application for leave – Anti – Discrimination – Exemption – necessity – section 105 available – discretion

Anti-Discrimination Act 1991 ss 105,113
Queensland Civil and Administrative Tribunal Rules 2009 r 101(1)(b)(i)

Re AP Eagers Limited [2012] QCAT 567

Re: Boeing Australia Holdings Pty Ltd & related entities [2003] QADT 21.

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).

REASONS FOR DECISION

C Endicott, senior member

1. I have read the reasons of Ms Clifford and I agree with them.  No basis has been established to grant leave to appeal the decision to refuse the exemption application. 

R Clifford, member

1. Downer EDI Mining is a large mining services contractor. Downer EDI applied for an exemption from the Anti-Discrimination Act 1991 (AD Act) so that it could attract and increase indigenous participation in its workforce without concerns of discrimination being made against it.

2. On 27 February 2013 the Tribunal dismissed the application for exemption. The learned member was satisfied there was no demonstrated need for exemption because firstly section 105 of the AD Act was arguably available and secondly the company was meeting and exceeding its own targets for indigenous employment.

3. Downer EDI filed an application for leave to appeal or appeal and whilst firstly stating that ‘the member seems to have missed the point of the exemption application’ outlines that the grounds of appeal are:  

   (a) We are still open to discrimination charges as if we openly advertise to indigenous people to apply the non indigenous could see that as discriminatory. If we continue with the same advertising without the exemption we are liable to discrimination charges

   (b) I have additional figures to submit here which detail the fact that we are not actually meeting this year’s targets as the resources sector market has significantly changed and we no longer have as many opportunities to employ inexperienced operators which means there isn’t as much opportunity to employ indigenous unless we designate the roles specifically to this group.

4. Downer EDI seek orders for leave to appeal.

5. In written submissions of July 2010 Downer EDI states it applied for exemption in order to designate, advertise and appoint specific roles to indigenous employees. Downer EDI submits it does not believe the exemption is not required, as reasoned in the original application, as it would still be open to claims of discrimination from non-indigenous applicants who apply. Downer EDI submits it hasn’t been able to advertise specifically for indigenous applicants in the past because it didn’t have the exemption in place and this meant it wasn’t able to meet…