Downer EDI Mining Pty Ltd (No 2) - [2013] QCAT 532

CITATION:

Downer EDI Mining Pty Ltd (No 2) [2013] QCAT 532

PARTIES:

Downer EDI Mining Pty Ltd
(Applicant)

APPLICATION NUMBER:

ADL095-12

MATTER TYPE:

Anti-discrimination matters

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

C Endicott, Senior Member

DELIVERED ON:

18 October 2013

DELIVERED AT:

Brisbane

ORDERS MADE:

An exemption is granted to Downer EDI Mining Pty Ltd from the operation of sections 13, 14, 15, and 127 of the Anti-Discrimination Act 1991 in relation to the attribute referred to in section 7(a) of the Act from 18 October 2013 to 17 October 2018 in respect of the recruiting and employment of persons at its open-cut sites at Goonyella, Blackwater, Daunia, Meandu and Commodore.

CATCHWORDS:

ANTI-DISCRIMINATION – Where application for exemption from discrimination on the basis of sex in the area of employment – where employer sought to increase female workforce in entry level positions to improve gender diversity

Anti-Discrimination Act 1991 ss 105, 113

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

Downer EDI Mining Pty Ltd has applied to QCAT for an exemption under section 113 of the Anti-Discrimination Act 1991 (AD Act). On 25 February 2013 a member adjourned a hearing of that application so further information could be provided about that application. Following a directions hearing on 20 May 2013, orders were made for any further information to be filed by 15 July 2013.
The applicant has clarified the nature of the conduct for which the exemption is being sought. Downer EDI Mining had conducted a gender diversity survey of over 2000 women employed by that company to find out the key issues facing women in the organisation. A number of gender related initiatives and programs have been developed assisted by the information from that survey.
One of the initiatives is to undertake action to recruit 10 female operators to join the teams working on each of five sites within the Open Cut Mining business in Queensland each year. The positions sought to be filled by the female recruits are at entry level and the aim of the initiative is to break the stereotypes around gender and occupation.
Downer EDI Mining provided some basic information of its mining operations that would be affected by this initiative. The company is one of Australia’s largest open-cut mining services contractors and has over nine decades of experience in this industry. According to the information provided by the company, its employees bring diverse skills to the projects on which the company is contracted. The company stated that it has a strong focus on safety and training.
The long term open-cut projects in eastern Australia identified sites in the Surat and Bowen Basins in Queensland. It was stated that traditionally the mining industry employs male workers but skill shortages and the desire to have a better gender balance in its workforce has lead to the initiative to increase female participation in the workforce of Downer EDI Mining. The initiative wants to target female candidates for employment for entry level operator positions living in townships surrounding open-cut sites or living in other towns accessible to the sites via flight or car in central Queensland.
It was submitted that Downer EDI Mining employs a steady influx of new operators at each site to allow for existing personnel to be multi-skilled on a variety of machinery. In this way the workforce is developed to meet the possibly changing needs of a mining site as a project is undertaken.
It was submitted that increased female workforce participation promoted inclusiveness and diversity, fosters greater innovation and reflects a strong corporate responsibility. It was submitted that men are found to be more susceptible to risk taking than women and it was anticipated that an increased female participation in positions at mining sites would provide an opportunity to improve a safety culture in the organisation.
Downer EDI Mining had analysed the need for increased female participation and the likely impact of increased female participation on its business. It was found by experience that simply advertising to attract women to the entry level positions at mining sites would not result in any meaningful and sustained increase in female participation as employees in the organisation. Site cultures and support mechanisms would need to be developed to embrace inclusiveness and diversity to break female stereotyping at the sites.
Section 113 of the AD Act provides discretionary power to QCAT to grant an exemption against liability when conduct is engaged in that would otherwise constitute unlawful discriminatory conduct. One precondition to the exercise of that power requires QCAT to give to the Anti-Discrimination Commissioner a copy of the exemption application and supporting material filed with that application. The Commissioner in this case queried whether an exemption was necessary. That issue will be discussed more fully later in these reasons. Otherwise the Commissioner has no objection to the proposed exemption being granted in order to promote a more inclusive and diverse workforce at the applicant’s mine sites.
Exemptions granted under section 113 allow an applicant to have protection against liability for conduct that would constitute a prima facie case of unlawful discrimination.[1] Not all conduct may require a general exemption under section 113 if there are already circumstances which might otherwise excuse unlawful conduct because of some specific exemptions or defences in the AD Act.
[1] J & D Richards Developments Pty Ltd [2005] QADT 13.
One such exemption is contained in section 105 of the Act where a defence is provided to a complaint of unlawful discrimination if the actions complained of have been done to promote equal opportunity for a group of people with an attribute if the purpose of the conduct is not inconsistent with the AD Act. This is the provision to which the Commissioner alluded when he raised a query as to whether a general exemption under section 113 was actually necessary in this case.
Much of the information provided by the applicant refers to providing opportunities for women to be recruited into Downer EDI Mining’s workforce at open-cut mining sites. At present only 10% of all waged employees are female workers. There is a higher percentage of female employees in salaried positions but those positions are not directly under consideration in this application. The total female workforce within Downer EDI Mining is 14%. The target for female workforce participation within the organisation is 25% by 2020 to be achieved by a 2% year on year increase in the overall female workforce.
According to its submissions, Downer EDI Mining will seek to achieve that gender diversity target by a variety of means including by utilising merit based selection and promotion processes and by developing internal talent pools. Curiously, the details in the organisation’s published document called a Gender Diversity Bluesheet provided to QCAT with the actual steps to be undertaken do not appear to include the recruitment of women only for a number of entry level positions at mine sites. An inference can be drawn that this latter proposal is additional to the more traditional means of increasing gender diversity set out in the published document.
I am not satisfied that the provisions in section 105 of the Act would be sufficient to provide a defence to a complaint of unlawful discrimination to the advertising and recruiting of female candidates to 10 positions at mine sites. The proposal is to set an annual quota of 10 positions in five mine sites in Queensland and to achieve over time, together with other disparate steps, an increased female waged workforce in Downer EDI Mining. The proposal is not strictly promoting equal opportunity as there will be each year more than 10 positions advertised and filled with candidates who fall outside of the scope of this proposal. There is nothing to suggest in the application that some corresponding equal opportunity efforts will be made to ensure that female candidates of equal merit to male candidates will be recruited and hired for those other positions at open-cut mine sites.
With that consideration in mind, I do not assess this quota proposal as necessarily promoting of itself equal opportunity for women. If the proposal is to proceed without attracting liability for breach of the AD Act, another source of exemption must be considered. In the absence of an appropriate specific exemption in the Act, a general exemption under section 113 would be needed.
The relevant authorities require me to have regard to certain matters when exercising discretion about an exemption application. These matters include whether it would be appropriate and reasonable to grant an exemption, whether there are any non-discriminatory ways of achieving the purposes for which the exemption is sought and whether there is support for the exemption being granted.[2]
[2]Boeing Australia Holdings Pty Ltd & related entities [2003] QADT 21.
The submissions made by Downer EDI Mining and set out in the earlier paragraphs of these reasons set out what I consider to be compelling grounds for a general exemption. The waged workforce at open-cut mine sites is predominantly male. Factors including the desirability of inclusiveness, gender diversity, safety and greater innovation and implementation of corporate responsibility for better gender diversity support a conclusion that it is reasonable and appropriate to take this specific step to ensure that the proportion of waged female workers is increased.
In addition to this specific proposal, Downer EDI Mining will implement non discriminatory ways of achieving its goal of increased gender diversity as set out in the published gender diversity bluesheet. However I am satisfied that isolating 10 positions annually at each of five open-cut mines sites in Queensland for female candidates at entry level operator positions will appropriately supplement other non discriminatory ways of increasing the female workforce in accordance with the projected gender diversity goals.
Downer EDI Mining has consulted relevant stakeholders and QCAT has been provided with written indications of support for the proposal from the CFMEU, Queensland Resources Council and the AMMA which is a resource industry employer group.
I am satisfied that an exemption should be granted to Downer EDI Mining Pty Ltd from the operation of sections 13, 14, 15, and 127 of the Anti-Discrimination Act 1991 in relation to the attribute referred to in section 7(a) of the Act from 18 October 2013 to 17 October 2018 in respect of the recruiting and employment of persons for positions at five designed open-cut mining sites in Queensland.