Downer EDI Mining - [2013] QCAT 99

CITATION:

Downer EDI Mining [2013] QCAT 99

PARTIES:

Downer EDI Mining
(Applicant)

APPLICATION NUMBER:

ADL113-12

MATTER TYPE:

Anti-discrimination matters

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

David Paratz, Member

DELIVERED ON:

27 February 2013

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The application is dismissed.

CATCHWORDS:

Equal opportunity – employment of indigenous workers – targets already being met – no need for exemption – significance of an exemption

Anti-Discrimination Act 1991, s 7(g), s 8, s 14, s 15, s 25, s 52, s 105, s 127
Queensland Civil and Administrative Tribunal Rules, r 101

Re A P Eagers Limited [2012] QCAT 567, distinguished

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

This is an application for exemption from the Anti-Discrimination Act 1991 (“the Act”).
The Applicant, Downer EDI Mining, describes itself as one of Australia’s largest open-cut mining services contractors. It has a $1.7 billion fleet of open-cut mining equipment.
It is seeking to increase indigenous participation in its workforce.
The application seeks an exemption for 6 years. The purpose stated in the application is:
To designate, advertise and recruit indigenous operators for each of the sites we operate at in qld. Six sites in total, with the successful applicants commencing as trainee positions “green operators”.
The grounds stated in the application are:
Out of 5049 employees within Downer EDI Mining, only 214 of those employed are indigenous. To increase this number we would like to run indigenous specific campaigns to attract and select indigenous employees into these roles – thereby increasing our numbers. We have done this previously with advertising aimed at attracting indigenous candidates and building relationships with community groups but would like to promote the opportunities to the greater communities with two of our key projects moving to Fly in – Fly out options, allowing us to expand our recruitment base.
An Applicant for an exemption under the Act must state the provision of the Act from which an exemption is sought (rule 101 of the Queensland Civil and Administrative Tribunal Rules 2009).
In the attachment to its application (page1) filed on 20 December 2012, the company specifies that it is seeking exemption from three sections, which it described as follows:
Section 8 – Discrimination against applicants and employees
Section 51 – advertisements
Sections 25 – discrimination against applicants and employees
The sections which the company refers to in its application as seeking exemption from are: s 8 which is a definition section as to the meaning of ‘discrimination on the basis of an attribute’; s 51 which does not refer to advertising as stated, but is about ‘special services or facilities required’; and s 25 which is about ‘genuine occupational requirements’.
The company describes its ‘Anticipated outcomes of the exceptions – challenging conventional methodology’ at page 2…

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: [2013] QCAT 99
Decision Date

CaseChat Overview and Summary

In this case, Downer EDI Mining sought an exemption from certain provisions of the Anti-Discrimination Act 1991 to facilitate the recruitment of more indigenous employees. The applicant, Downer EDI Mining, is one of Australia's largest open-cut mining services contractors, with a $1.7 billion fleet of mining equipment. The company sought a six-year exemption from sections 8, 51, and 25 of the Anti-Discrimination Act 1991 to enable it to advertise positions specifically aimed at attracting indigenous candidates.

The primary legal issue before the court was whether Downer EDI Mining was genuinely in need of an exemption from the provisions of the Anti-Discrimination Act 1991 to achieve its goal of increasing indigenous participation in its workforce. The court considered whether the company had already met its targets for indigenous recruitment and whether an exemption was necessary to achieve its goals.

The court found that Downer EDI Mining had already been successfully filling, and even exceeding, its targets for indigenous employees under current arrangements. The company's recruitment figures indicated that it had achieved its targets for the financial years 2010/2011 and 2011/2012, with 163 indigenous employees hired in the latter year, exceeding the target of 135 by 28 new recruits. Given these figures and the company's statement that it anticipated meeting its targets again over the next 12 months, the court concluded that there was no demonstrated need for an exemption. The court further reasoned that the company could potentially promote equal opportunity under section 105 of the Anti-Discrimination Act 1991 without needing an exemption. Therefore, the application was dismissed.

The final order was that the application for exemption from the Anti-Discrimination Act 1991 was dismissed.

Orders