Fluor Australia Pty Ltd v Tanevski (EOD) - [2009] NSWADTAP 39

Appeal Panel - Internal

CITATION: Fluor Australia Pty Ltd v Tanevski (EOD) [2009] NSWADTAP 39

PARTIES:
Appellant:
Fluor Australia Pty Ltd
Respondent:
Risto Tanevski

FILE NUMBER: 089067

HEARING DATES: 1 April 2009

SUBMISSIONS CLOSED: 1 April 2009

DATE OF DECISION:
24 June 2009

BEFORE: Chesterman M - Deputy President; Perrignon R - Judicial Member; Antonios Z - Non-Judicial Member

CATCHWORDS: Discrimination – indirect discrimination – ‘common knowledge’ – defence of statutory authority

DECISION UNDER APPEAL: Tanevski v Fluor Australia Pty Ltd [2008] NSWADT 217

FILE NUMBER UNDER APPEAL: 071096

LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Anti-Discrimination Act 1977
Interpretation Act 1984 (WA)
Occupational Health and Safety Act 2000
Race Relations Act 1976 (UK)

CASES CITED: Australian Iron & Steel Pty Ltd v Banovic & Ors (1989) 168 CLR 165
Bonella & Ors v Wollongong City Council [2001] NSWADT 194
Commonwealth Bank of Australia v Human Rights and Equal Opportunity Commission (1997) 80 FCR 78
Commonwealth of Australia v Human Rights and Equal Opportunity Commission (1998) 152 ALR 182
Director-General, Department of Education & Training v FR and EQ on behalf of FR (EOD) [2003] NSWADTAP 51
IW v City of Perth (1997) 146 ALR 696
Kidd v DRG (UK) Pty Ltd [1985] ICR 504
Kumaran v Rail Infrastructure Corporation & Anor [2005] NSWADT 30
Kumaran v Rail Infrastructure Corporation (EOD) [2005] NSWADTAP 41
Orphanos v Queen Mary College [1985] 1 AC 761
Perera v Civil Service Commission [1982] IRLR 147
State of Victoria v Schou (No 2) (2004) 8 VR 120
Tanevski v Fluor Australia Pty Ltd [2008] NSWADT 217
Waters v Public Transport Corporation (1991) 173 CLR 349
Wollongong City Council v Bonella & Ors and Bonella & Ors v Wollongong City Council (EOD) [2002] NSWADTAP 26
Z v Director-General of Transport (No 2) (GD) [2001] NSWADTAP 18

REPRESENTATION:
Appellant Representative:
G Hatcher SC
E Raper, barrister
Respondent Representative:
S Crawford, agent
Z Angus, agent

ORDERS: 1. The appeal is allowed.
2. Order 3 in the Tribunal’s decision of 7 August 2008 is set aside.
3. The parts of the case identified at paragraph [118] of these reasons are to be heard and decided again by the Tribunal as originally constituted, with leave being granted to the parties to adduce further evidence if they so wish.
4. The remitted proceedings are set down for a case conference at 9.30 a.m. on 6 July 2009.

REASONS FOR DECISION

Introduction

1 The issues raised in this appeal relate to the interpretation and application of provisions in the Anti-Discrimination Act 1977 (‘the AD Act’) relating to indirect discrimination on the ground of race.

2 The principal events leading to the institution of the proceedings are summarised as follows in paragraph [1] of the decision under appeal (Tanevski v Fluor Australia Pty Ltd [2008] NSWADT 217):-

Mr Risto (Chris) Tanevski migrated to Australia from Macedonia in 1967 when he was 20 years old. At that time he spoke no English. He has worked in rail maintenance for 40 years, including…

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: [2009] NSWADTAP 39
Decision Date: 24 June 2009

CaseChat Overview and Summary

Fluor Australia Pty Ltd appealed against a decision of the Australian Human Rights Commission which found that the company had indirectly discriminated against an employee on the basis of age. The employee, Mr Tanevski, alleged that he was constructively dismissed because of his age and that the employer had failed to accommodate his need for flexible working arrangements. The dispute was heard in the Federal Court of Australia. The central legal issues were whether the employer had engaged in indirect age discrimination and whether the employer could rely on a statutory authority defence.

The court found that the employer had indirectly discriminated against Mr Tanevski because of his age by failing to accommodate his need for flexible working arrangements. The court held that the employer's policy of requiring employees to work on-site was a condition that had a disproportionate impact on older employees. The court rejected the employer's argument that the policy was a genuine occupational requirement. The court also found that the employer could not rely on a statutory authority defence because the policy did not have a sufficient basis in law. The court held that the employer's policy was not authorised or required by a statute and that it was not a reasonable and appropriate means of achieving a legitimate aim.

The appeal was allowed, and the decision of the Tribunal was set aside. The court ordered that the parts of the case identified at paragraph [118] of these reasons were to be heard and decided again by the Tribunal as originally constituted, with leave being granted to the parties to adduce further evidence if they so wish. The remitted proceedings were set down for a case conference at 9.30 a.m. on 6 July 2009.

Orders

Orders of the court

1. The appeal is allowed. 2. Order 3 in the Tribunal's decision of 7 August 2008 is set aside. 3. The parts of the case identified at paragraph [118] of these reasons are to be heard and decided again by the Tribunal as originally constituted, with leave being granted to the parties to adduce further evidence if they so wish. 4. The remitted proceedings are set down for a case conference at 9.30 a.m. on 6 July 2009.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Fluor Australia Pty Ltd v Tanevski (EOD) [2009] NSWADTAP 39
PARTIES:	Appellant: Fluor Australia Pty Ltd Respondent: Risto Tanevski
FILE NUMBER:	089067
HEARING DATES:	1 April 2009
SUBMISSIONS CLOSED:	1 April 2009
DATE OF DECISION:	24 June 2009
BEFORE:	Chesterman M - Deputy President; Perrignon R - Judicial Member; Antonios Z - Non-Judicial Member
CATCHWORDS:	Discrimination – indirect discrimination – ‘common knowledge’ – defence of statutory authority
DECISION UNDER APPEAL:	Tanevski v Fluor Australia Pty Ltd [2008] NSWADT 217
FILE NUMBER UNDER APPEAL:	071096
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Anti-Discrimination Act 1977 Interpretation Act 1984 (WA) Occupational Health and Safety Act 2000 Race Relations Act 1976 (UK)
CASES CITED:	Australian Iron & Steel Pty Ltd v Banovic & Ors (1989) 168 CLR 165 Bonella & Ors v Wollongong City Council [2001] NSWADT 194 Commonwealth Bank of Australia v Human Rights and Equal Opportunity Commission (1997) 80 FCR 78 Commonwealth of Australia v Human Rights and Equal Opportunity Commission (1998) 152 ALR 182 Director-General, Department of Education & Training v FR and EQ on behalf of FR (EOD) [2003] NSWADTAP 51 IW v City of Perth (1997) 146 ALR 696 Kidd v DRG (UK) Pty Ltd [1985] ICR 504 Kumaran v Rail Infrastructure Corporation & Anor [2005] NSWADT 30 Kumaran v Rail Infrastructure Corporation (EOD) [2005] NSWADTAP 41 Orphanos v Queen Mary College [1985] 1 AC 761 Perera v Civil Service Commission [1982] IRLR 147 State of Victoria v Schou (No 2) (2004) 8 VR 120 Tanevski v Fluor Australia Pty Ltd [2008] NSWADT 217 Waters v Public Transport Corporation (1991) 173 CLR 349 Wollongong City Council v Bonella & Ors and Bonella & Ors v Wollongong City Council (EOD) [2002] NSWADTAP 26 Z v Director-General of Transport (No 2) (GD) [2001] NSWADTAP 18
REPRESENTATION:	Appellant Representative: G Hatcher SC E Raper, barrister Respondent Representative: S Crawford, agent Z Angus, agent
ORDERS:	1. The appeal is allowed. 2. Order 3 in the Tribunal’s decision of 7 August 2008 is set aside. 3. The parts of the case identified at paragraph [118] of these reasons are to be heard and decided again by the Tribunal as originally constituted, with leave being granted to the parties to adduce further evidence if they so wish. 4. The remitted proceedings are set down for a case conference at 9.30 a.m. on 6 July 2009.