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JET AVIATION AUSTRALIA PTY LTD

JET AVIATION AUSTRALIA PTY LTD

Case [2024] WASAT 122 19 November 2024

Equal Opportunity Act 1984 (WA)

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JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: EQUAL OPPORTUNITY ACT 1984 (WA)
CITATION:   JET AVIATION AUSTRALIA PTY LTD [2024] WASAT 122
MEMBER:   DR M EVANS-BONNER, SENIOR MEMBER
HEARD:   DETERMINED ON THE DOCUMENTS
DELIVERED          :   19 NOVEMBER 2024
FILE NO/S:   EOA 25 of 2024
BETWEEN:   JET AVIATION AUSTRALIA PTY LTD
Applicant

Catchwords:

Equal Opportunity Act 1984 (WA) (EO Act) - Exemption application - Race - Nationality - Application for exemption under s 135 of the EO Act from the operation of s 37, s 39 and s 49 of the EO Act - Applicant contracted to provide aircraft support to the Australian Department of Defence - Strict contractual condition that the Applicant will comply with United States import and export control laws and regulations which prohibit and/or restrict persons of certain nationalities accessing controlled defence technology, data and products - Applicant requires exemption so as to comply with its contractual obligations and so the Applicant and its Western Australian employees do not contravene United States Law - International Traffic in Arms Regulations (ITAR) - Export Administration Regulations (EAR) - Whether exemption from discrimination on the grounds of race in areas related to employment warranted in the circumstances - Exemption granted for 5 years - Terms and conditions imposed on grant of exemption

Legislation:

Corporations Act 2001 (Cth)
Equal Opportunity Act 1984 (WA), s 3, s 4, s 37, s 39, s 49, s 50, s 50(d), s 51, s 52, s 68, s 69, s 70, s 71, s 72, s 73, s 74, s 135, s 135(1), s 135(2), s 135(3), s 135(6), s 136(1), s 136(2), s 137, Pt VI
Equal Opportunity Regulations 1986 (WA), reg 24
Interpretation Act 1984 (WA), s 5
State Administrative Tribunal Act 2004 (WA), s 60(2)

Result:

Application for exemption granted

Category: B

Representation:

Counsel:

Applicant

N/A

Solicitors:

Applicant

Kingston Reid

Cases referred to in decision:

ASC Pty Ltd [2024] WASAT 39
BAE Systems and Commissioner for Equal Opportunity [2019] WASAT 79
Boeing Australia Holdings Pty Ltd (Anti-Discrimination Exemption) [2007] VCAT 532
Cobham Aviation Services Australia Pty Ltd and Ors [2023] WASAT 21
Commissioner for Equal Opportunity v ADI Limited [2007] WASCA 261
FAI Insurances Ltd v Winneke (1982) 151 CLR 342
Le v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 875
Linfox Australia Pty Ltd and Equal Opportunity Commission [2020] WASAT 111
Padfield v Minister for Agriculture Fisheries & Food [1968] AC 997
Raytheon Australia Pty Ltd and Commissioner for Equal Opportunity [2008] WASAT 266
Thales Australia Ltd and Commissioner for Equal Opportunity [2012] WASAT 222

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

On 11 June 2024 Jet Aviation Australia Pty Ltd (Jet Aviation) made an application to this Tribunal under s 135(1) of the Equal Opportunity Act1984 (WA) (EO Act) seeking an order granting an exemption from the operation of s 37, s 39 and s 49 of the EO Act.
Jet Aviation has contracts to supply aircraft support to the Australian…

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

AGLC: JET AVIATION AUSTRALIA PTY LTD [2024] WASAT 122
Case: [2024] WASAT 122
Decision Date: 19 NOVEMBER 2024

CaseChat Overview and Summary

Jet Aviation Australia Pty Ltd sought exemption from certain provisions of the Equal Opportunity Act 1984 (WA) to enable the company to comply with its contractual obligations and United States import and export control laws. The company contracted to provide aircraft support to the Australian Department of Defence and was subject to a strict contractual condition that it must comply with United States import and export control laws and regulations. These regulations prohibit and/or restrict persons of certain nationalities from accessing controlled defence technology, data and products. Without exemption, the company and its Western Australian employees would contravene United States Law. The International Traffic in Arms Regulations (ITAR) and Export Administration Regulations (EAR) were relevant to the case.

The court was required to decide whether exemption from discrimination on the grounds of race in areas related to employment was warranted in the circumstances. The court considered the impact of the United States laws on the company's ability to comply with its contractual obligations, the nature of the discrimination, and the potential impact on the company and its employees. The court also considered the public interest in ensuring that the company could continue to provide services to the Australian Department of Defence.

The court found that exemption was warranted in the circumstances. The court noted that the discrimination was not based on race but rather on nationality, and that the United States laws were beyond the control of the company. The court also noted that the exemption would only apply to the company and its Western Australian employees, and that the exemption would be subject to terms and conditions. The court granted the exemption for a period of five years, subject to review. The court also imposed terms and conditions on the grant of exemption, including the requirement that the company monitor and report on compliance with the exemption and the terms and conditions.

Orders