LINFOX AUSTRALIA PTY LTD and EQUAL OPPORTUNITY COMMISSION
[2020] WASAT 111
•5 AUGUST 2020
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: EQUAL OPPORTUNITY ACT 1985 (WA)
CITATION: LINFOX AUSTRALIA PTY LTD and EQUAL OPPORTUNITY COMMISSION [2020] WASAT 111
MEMBER: MS L EDDY, SENIOR MEMBER
HEARD: 29 JULY 2020
DELIVERED : 5 AUGUST 2020
FILE NO/S: EOA 13 of 2020
BETWEEN: LINFOX AUSTRALIA PTY LTD
Applicant
AND
EQUAL OPPORTUNITY COMMISSION
Respondent
Catchwords:
Equal opportunity - exemption application - turns on own facts
Legislation:
Defence Trade Controls Act 2013 (Cth)
Equal Opportunity Act 1984 (WA), s 37, s 39, s 49, s 135, s 136
Result:
Application allowed
Exemption granted
Category: B
Representation:
Counsel:
| Applicant | : | N/A |
| Respondent | : | N/A |
Solicitors:
| Applicant | : | Russell Kennedy Lawyers |
| Respondent | : | Mr J Rosales-Castaneda |
Case(s) referred to in decision(s):
Nil
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
In August 2020, the Tribunal made an order under s 135 of the Equal Opportunity Act 1984 (WA) (EO Act) that, subject to a number of conditions, exempted Linfox Australia Pty Ltd (applicant or Linfox) from the operation of s 37, s 39 and s 49 of the EO Act in respect of activities specified in the order from 31 July 2020 for five years. A copy of the orders is included at the end of these reasons.
Prior to granting the application for the exemption, the Tribunal ensured that notice of the application for exemption, which is a further exemption, was given by newspaper advertisement. That advertisement included information about how to contact the Tribunal if any person wished to apply to become a party to the application for exemption and advised that a directions hearing would be held on the date identified in the advertisement. The Tribunal received no contact from any person not already a party to the proceedings following the advertisement. The Commissioner for Equal Opportunity advised the Tribunal that he did not object to the application for exemption.
Section 136 of the EO Act provides:
(1)The Tribunal shall, not later than one month after it makes a decision under section 135, publish
(a)the decision; and
(b)the reasons for the decision; and
(c)its findings of fact material to the decision; and
(d)a summary of the evidence on which those findings were based.
(2)Any failure to comply with subsection (1) in relation to a decision does not affect the validity of the decision.
Summary of evidence
The Tribunal has before it an affidavit of Bruce Knight, who is the Defence National Security Manager, Government and Defence for Linfox, sworn on 3 June 2020. It also has the application for the exemption, an attachment to the application and Exhibit 'BK-1', which is an affidavit of Andrew Raimon Collett affirmed on 25 May 2015 and annexing a significant bundle of documents. The Tribunal also has 'BK-2', which is a copy of the affidavit of Lysa Davey affirmed on 1 June 2015. Attachments 'BK-3' to 'BK-10 include numerous documents referred to by Mr Knight in his affidavit.
Unfortunately, it is not possible to summarise the relevant facts and the findings of the Tribunal without heavily quoting from the material before the Tribunal.
Linfox has previously obtained an exemption under s 135 of the EO Act from the Tribunal, which was granted on 31 July 2015. That exemption expired on 31 July 2020.
Mr Knight affirmed that it was his belief that the exemptions are still necessary to allow Linfox to comply with its obligations under contract, United States law and Australian Legislation. He says that there are no material changes to the facts and information set out in affidavits of Mr Collett and Ms Davey. The Tribunal accepts Mr Knight's evidence to the effect that the facts and information provided in the affidavits of Mr Collett and Ms Davey remain current and accurate in relation to the current application for an exemption under the EO Act.
The applicant entered into a contract with the Commonwealth of Australia in 2013 in which it agreed to provide warehousing and distribution services to the Australian Defence Force (ADF). One of the conditions of the contract is that Linfox and its personnel are required to handle a broad range of material, data and technology used by the ADF.
Under the contract Linfox and its personnel are required to comply with the laws of the United States. Relevantly, some of those laws make it an offence to supply defence articles and services listed in the Defence Trade Cooperation Munitions List to any person who is not a member of the Australian or United States Communities. To be part of the Australian Community, Linfox's personnel are required to be Australian Citizens (unless this requirement is waived by Australia and the United States) and hold a current Australian security clearance. The Australian Community Manual, which is a document published by the ADF provides, in relation to the circumstances in which a waiver of the requirement to be an Australian citizen might be agreed to as follows:
A waiver would only be granted in exceptional circumstances. For example, a waiver may be granted when an activity requires specialised skills or expertise which the subject possesses and no, or limited, Australian Citizens possess similar capability.
A similar statement is also contained in the Defence Trade Controls Act 2012 (Cth).
As stated in the attachment to the application, these security requirements are imposed on Linfox in order to protect the security of the ADF's defence materials.
Linfox seeks the exemptions so that it is able to (paragraphs 1-11 of the attachment to the application):
1Require members or potential members of the Workforce to provide details of their citizenship (including any changes to their citizenship) to enable the Applicant to determine whether they are permitted under the Security Requirements to participate in the provision of the Services or to have access to Defence Materials;
2Disclose information about the citizenship of members of the Workforce to:
(a)the United States Department of State;
(b)the Australian Department of Defence; or
(c)any other organisation or government department for which or on whose behalf or at whose request the Applicant undertakes work in respect of which the Applicant has (directly or indirectly) an obligation not to transfer Defence Materials on the basis of citizenship;
3Maintain a list, with distribution limited to only those officers and employees with a need to know, of members of the Workforce who are permitted by virtue of their citizenship to participate in the provision of the Services or have access to related Defence Materials so as to distinguish them from members of the Workforce who are not so permitted;
4Identify by means of a pass that is coded in a manner that does not refer to citizenship whether the member of the Workforce has the necessary security clearance to participate in the provision of the Services or have access to related Defence Materials so as to distinguish them from members of the Workforce who are not so permitted;
5Restrict access to Defence Materials connected with the Services to particular members of the Workforce based on their citizenship;
6Restrict access to areas of its facilities connected with the provision of the Services to particular members of the Workforce based on their citizenship;
7Enter into agreements with the Applicant's employees, contractors, agents and consultants pursuant to which those third parties undertake to comply with the Security Requirements, and to take all practicable steps to assist the Applicant in complying with the Security Requirements;
8Reject applications to join the Workforce in positions relating to the provision of the Services or requiring access to the Defence Materials based on the job applicant's citizenship, and taking into account a person's citizenship in determining who should be offered employment or contract work requiring access to Defence Materials;
9Transfer members of the Workforce from the provision of the Services to work in other parts of the Applicant's business on the basis that, due to their citizenship (including a change to their citizenship), the Applicant may not permit them to participate in the provision of the Services;
10Terminate the employment or engagement of members of the Workforce on the basis that:
(a)due to their citizenship (including a change to their citizenship), the Applicant may not permit them to participate in the provision of the Services; and
(b)it is not reasonable in all the circumstances to redeploy or transfer the members of the Workforce to another role within the Applicant's business, or within a business operated by one of the Applicant's associated entities.
11Advertise positions within the Workforce as being open only to Australian citizens who can obtain the necessary clearances for access to the Defence Materials.
The 2015 exemption had a condition that required the applicant to report in writing to the Commissioner for Equal Opportunity about four specified things:
(a)the steps taken by the Applicant to comply with the EO Act and the terms and conditions of this exemption, including training and education given to its Workforce, compliance audits, and any complaints made under the EO Act;
(b)the number of applications to join its Workforce rejected under the exemption and whether any (and if so, how many) were subsequently appointed to other roles;
(c)the number of members of its Workforce redeployed or retrenched in accordance with the exemption, and any steps taken to minimise harm or loss to those people arising from the redeployment or retrenchment;
(d)the number of Workforce vacancies advertised or offered under the exemption.
The Tribunal accepts Linfox's assertion, and finds that for the duration of the prior exemption, to the date of Mr Knight's affidavit, a total of:
40.1no applications to join Linfox's workforce were rejected under the Prior Exemption;
40.2no employees were redeployed or retrenched under the Prior Exemption; and
40.341 vacancies were advertised or offered under the Prior Exemption.
Findings of material facts
The Tribunal makes the following findings of material facts based on the evidence before the Tribunal. The Tribunal has primarily relied on Mr Collet's affidavit as the source for relevant findings of material fact. The Tribunal notes that the evidence in Ms Davey's affidavit confirm and support the evidence in Mr Collett's affidavit.
The following facts are taken from Mr Collett's affidavit. The Tribunal makes findings in accordance with these statements of fact.
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A:INTRODUCTION
Linfox Australia Pty Ltd
5Linfox is Australia's largest privately owned logistics business with operations across the Asia Pacific region and expertise in providing warehouse and transport solutions and services.
…
8The Government and Defence operation provides warehousing, disposal, distribution, information technology, logistics, and supply chain solutions and services to the Australian Defence Force (ADF).
Contract with the Commonwealth of Australia
9Linfox entered into a contract with the Commonwealth of Australia, executed on 19 December 2013, for the provision of Warehousing and Distribution Services to the ADF (Contract) as part of the Defence Logistics Transformation Program (DLTP).
…
11The services provided by Linfox to the ADF include the full spectrum of logistic services as outlined in paragraph 8 above.
12The initial term of the Contract is 8 years with 1 option up to 3 years at the discretion of the Commonwealth.
…
15The Contract is hundreds of pages long including attachments and schedules. Linfox's obligations under the Contract regarding its personnel are primarily contained in the document 'Conditions of Contract JLC 11-004' (Conditions of Contract).
B:LINFOX'S SECURITY REQUIREMENTS
…
17As a consequence of handling the Defence Material, Linfox and its personnel must comply with security requirements arising under:
17.1the Contract and Conditions of Contract;
17.2the Defence Trade Controls Act 2012 (Cth) (OTC Act) and the Defence Trade Controls Regulation 2013 (Cth) (OTC Regulations);
17.3the laws of the United States, including the Arms Export Control Act, the International Traffic in Arms Regulations (ITAR) and the requirements of any licence or authorisation applying to Linfox and made under those laws;
17.4Linfox's membership of the Defence Industry Security Program (DISP); and
17.5the Commonwealth's Defence Security Manual (DSM).
Conditions of Contract
18Due to the sensitive nature of the Defence Material being handled by Linfox, the Conditions of Contract contain a number of highly prescriptive clauses concerning security requirements for Linfox personnel. A number of the terms of the Conditions of Contract are commercial-in-confidence, and I am unable to exhibit the Conditions of Contract to my affidavit without approval from the ADF, unless I am required by law to do so.
19The Conditions of Contract require Linfox to:
19.1ensure that all personnel performing services under the Contract hold, at minimum, baseline security clearance (clauses 10.1.3, 28.1.2, 28.1.3), by their agreed start date (clause 28.1.11);
19.2ensure all personnel comply with the Commonwealth's security requirements (clause 28.1.1(b)), any relevant security requirements for each of the Warehousing & Distribution Sites (W&D Sites) operated by Unfox under the contract (clauses 10.3.1(e), 29.9.4), or any Commonwealth place, area or facility (clause 12.7.4);
19.3comply with an instruction from the Commonwealth to remove any personnel from a W&D Site or from the provision of services on the basis that the Commonwealth believes that the personnel (relevantly):
19.3.1are inappropriate to undertake the work required of them for reasons relating to security (clause 10.6.1(f));
19.3.2are in breach of any applicable Commonwealth security requirements (clause 10.6.1(h)); and
19.3.3have not been subject to the screening procedures, or have failed the screening procedures (clause 10.6.1(i));
19.4withhold security classified information or official information provided under the Contract to a third party, including a representative of another country (clause 28.1.4);
19.5refuse access to information and sites to personnel without the appropriate security clearance (clause 28.2.1, 29.9.3);
19.6report any unauthorised disclosure of security classified information or official information (clause 28.1.5);
19.7report compromised security clearances to the Commonwealth (clause 28.1.9);
19.8comply, and ensure subcontractors comply, with any defence requirements and laws (including those contained in the Defence Security Manual) (clauses 28.1.1(a), 28.1.6, 28.1.10, 29.1.1(a), 29.9.1);
19.9comply with ITAR and the Defence Trade Cooperation Treaty between US and Australia (Defence Cooperation Treaty) (clauses 7.4.2, 28.1.7, 29.2.10);
19.10comply with any ITAR investigation (clause 7.4.2(c));
19.11facilitate and comply with authorisation from the US to allow Linfox to access ITAR controlled technology (clauses 10.1.4, 29.2.1A, 29.2.2, 29.2.5, 29.2.1O);
19.12notify the Commonwealth of any breach of the ITAR or ITAR approval (clause 29.2.10(d));
19.13obtain and maintain membership of the DISP in accordance with the DSM (clause 28.4.1); and
19.14obtain and maintain membership of the Australian Community (if Linfox intends to rely on the Defence Trade Cooperation Treaty) (clause 29.2.14).
…
Membership of the Australian Community
21Linfox has been granted membership of the Australian Community, pursuant to the OTC Act.
22Linfox's application was granted on 18 August 2014. Now produced and shown to me and marked "AC-1" is a copy of a letter from the Director, US Trade Treaty, Department of Defence to Michael Tenace of Linfox dated 18 August 2014.
23As a member of the Australian Community, Linfox is now required to comply with the requirements set out in the OTC Act, and the OTC Regulations.
…
25Some, though not all, of the defence material handled by Linfox under the contract is subject to the OTC Act.
…
27Pursuant to regulation 5 of the OTC Regulations, Linfox's personnel will only be considered members of the Australian Community if they:
27.1are Australian Citizens (unless this requirement has been waived by the US and Australian governments); and
27.2hold a current Australian security clearance.
28I believe that waivers of the citizenship requirement are only granted in exceptional circumstances, such as where no Australian citizen has the required skills or expertise for the role. My belief is based on the Australian Community Manual, a document published by the Department of Defence. Now produced and shown to me and marked "AC-2" is a copy of the Australian Community Manual dated 7 June 2013.
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ITAR
31The ITAR are regulations made under section 2778 of the United States Arms Export Control Act (AEC Act).
…
34Transferring ITAR-Controlled Material without a licence or authorisation, or outside the scope of a licence or authorisation, is a breach of ITAR and its enabling legislation (as set out in sections 127.1(a) and (b) of ITAR, and section 2778(c) of the AEC Act).
…
36Linfox deals with ITAR-Controlled Material obtained by the Commonwealth through the United States' foreign military sales program.
37In order for the Commonwealth to release the ITAR-Controlled Material to Linfox, it must seek an authorisation from the US Department of State under section 123.9(a) of ITAR. I believe such authorisations are called 'Third Party Re-Transfer authorisations' (TPR). My belief is based on the Defence Material Standard Procedure, produced by Department of Defence. Now produced and shown to me and marked 'AC-3' is the Defence Material Standard Procedure DMSP (IND) 050002.
38Linfox's TPR Authorisation was granted on 20 June 2014, and an amended TPR Authorisation was granted on 24 June 2014. Now produced and shown to me and marked 'AC-4' are true copies of letters between US Department of State, the Commonwealth and Linfox comprising Linfox's TPR Authorisation.
39The TPR Authorisation allows Linfox to comply with ITAR while dealing with FMS acquired material.
Transfers of /TAR-Controlled Material to Employees
40Linfox's current TPR authorisation provides that only Linfox employees who are Australian citizens and have security clearances may access the unclassified FMS-acquired material covered by the authorisation.
41As a result, Linfox may only release unclassified material to a person if they are:
41.1an employee;
41.2who is an Australian Citizen; and
41.3who holds an Australian security clearance.
42If Linfox releases ITAR-Controlled Material to a person who does not meet the criteria above, it will be acting outside the scope of its TPR Authorisation, and may be subject to the penalties described at paragraph 35 above.
43Further, Linfox would be in breach of its obligations under the Conditions of Contract, described at paragraph 19 above, which could result in the Commonwealth terminating the Contract.
DISP and the DSM
44The DISP is a risk mitigation program which I believe is intended to ensure that the defence industry maintains its security responsibilities and safeguards the supply chain. The DISP enhances the Department of Defence's ability to monitor and mitigate the security risks associated with the contracting for, or outsourcing of, services, functions and capabilities.
45Linfox, as a contractor to the ADF, is required to obtain and maintain membership of the DISP.
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48In order to maintain DISP membership, Linfox must comply with the Defence Security Manual (DSM).
49The DSM is a document detailing the security policy, processes and technical standards to be adopted throughout Defence.
50The DSM requires Linfox to ensure that all personnel accessing Defence Material possess the appropriate security clearance.
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C: DISCRIMINATION REQUIRED BY SECURITY REQUIREMENTS
53The security requirements described above explicitly require Linfox to discriminate on the basis of a person's citizenship.
53.1Under its TPR authorisation and its corresponding obligations under ITAR and the AEC Act, Linfox is prevented from supplying ITAR-Controlled Material to personnel who are not Australian citizens (see paragraph 40 above).
53.2Linfox is also prohibited from supplying material regulated by the OTC Act to personnel who are not Australian citizens (see paragraph 27 above).
54Linfox must also discriminate on the basis of citizenship as a result of the requirement that all personnel hold an Australian security clearance under:
54.1the Conditions of Contract (see paragraphs 19.1, 19.2, 19.3 and 19.5 above);
54.2its TPR authorisation (see paragraph 40 above); and
54.3the OTC Act and Regulations (see paragraph 27 above).
55I am informed by Lysa Davey and believe that there are no roles under the Contract that do not require a security clearance.
56On that basis, I believe that it is necessary for Linfox to discriminate against employees and potential employees on the basis of citizenship in terms of who is employed in relation to the Contract, and the terms and conditions of that employment.
D:EXEMPTIONS SOUGHT
57I believe that the exemptions sought in the Application are required by Linfox in order to comply with its obligations arising under:
57.1the Conditions of Contract;
57.2ITAR and the AEC Act, including the specific requirements of Linfox's TPR authorisation;
57.3the OTC Act and Regulations as a member of the Australian Community; and
57.4the DSM.
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59I do not believe that Linfox has any less discriminatory options available to it in the circumstances[.]
Further, the following additional facts are taken from Ms Davey's statement. The Tribunal makes further findings of material facts in accordance with these statements of fact.
PERSONNEL SECURITY REQUIREMENTS
…
4Currently, Linfox has approximately 718 employees working under this Contract. This includes permanent staff, as well as staff on fixed term or maximum term contracts who have been engaged for specific projects.
5The table below shows the number of people Linfox currently employs in each state:
State
G&D
Project based staff
Head Office (Victoria)
28
8
VIC & TAS
122
NSW
238
50
QLD
125
40
WA
37
SA
30
20
NT
20
TOTAL
600
118
718
6Linfox must ensure all employees providing the services under the Contract have, at minimum, a baseline security clearance. I understand this to be an express obligation under the Contract.
7Approximately 100 employees require a security clearance at Negative Vetting 1 or higher, including operational management on Defence sites and certain key persons.
8This requirement applies to employees working on Defence sites, as well as employees in non-operational roles. Employees in non-operational roles require clearance to access information that sits on the Defence Restricted Network (ORN), such as inventory and freight movement details.
9There are very few roles in the Government and Defence business unit that do not require a security clearance, as the labour is predominantly required on Defence sites, or requires clearance to access the ORN.
10Employees on site without a security clearance are required to sign in every day as a visitor and are required to be escorted and supervised at all times by someone with a security clearance.
11The requirement for escorts and supervisors doubles our labour requirements for any period in which a person does not have a security clearance.
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13I understand that to obtain a security clearance, a person must be an Australian citizen, unless this requirement is waived. However, waivers for the requirement are only granted in exceptional circumstances, such as where no Australian citizen has the required skills or expertise for the role. My understanding is based on paragraph 188 of the Agency Personnel Security Guidelines produced by the Commonwealth. Now produced and shown to me and marked "LD-1" is a copy of the Agency Personnel Security Guidelines.
14Linfox does not currently have any roles under the Contract that require skills or expertise that could not be supplied by an Australian citizen.
OPPORTUNITIES FOR REDEPLOYMENT WITHIN LINFOX
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16All employees of Government and Defence have been engaged solely to meet the requirements of the Contract. As the requirement to have a security clearance applies to all Government and Defence roles, it would not be possible to redeploy a person who cannot obtain a security clearance within the Government and Defence business unit. Linfox would need to look at redeployment opportunities within other business units.
17Each business unit within Linfox operates its contracts and maintains its workforce independently of other business units. As a result, other business units generally do not have the capacity to take on additional labour.
18In fact, other business units have a number of contracts that will cease shortly, or have already ceased. At the end of those contracts, business units at Linfox frequently have surplus headcount, and they make all efforts to redeploy staff to minimise the impact of redundancy.
19Since the Contract commenced on 19 December 2013, Government and Defence has been asked several times by other business units to accept their surplus employees for redeployment.
20As a result, there are limited, if any, opportunities for Linfox to redeploy personnel who are unable to obtain a security clearance to other business units.
21However, if Linfox is granted the exemptions, it will take steps to ensure that redeployment within other business units is the first option considered if a person is unable to work in Government and Defence due to their citizenship. Linfox will only consider termination of employment if there are no suitable redeployment opportunities available across the business.
LINFOX'S ANTI-DISCRIMINATION POLICIES
22Linfox is committed to promoting the objects of the Equal Opportunity Act 1984.
23Linfox has implemented a workplace diversity policy, titled the Linfox Workplace Behaviour and Diversity Policy. Now produced and shown to me and marked "LD-2" is a copy of that policy.
24All employees undergo training on equal opportunity and discrimination upon induction, and follow up training is conducted every 12 months. The training is provided in different ways depending on the team. Some staff complete an online module. In other cases the training forms part of the operational training which occurs through toolbox meetings. The method of delivery is also adapted to suit the needs of staff who have lower levels of literacy. Linfox also keeps a training register which tracks the completion of training by staff.
IMPACT OF THE PROPOSED EXEMPTION
25I would expect that over the period of the contract Linfox will receive a number of applications from prospective workers who are not Australian Citizens.
26The impact of the proposed exemption is that those workers would not be engaged to perform services under the Contract.
27However, as stated above, my understanding is that those workers will be unable to obtain the security clearances required to perform the work. If the exception is not granted, and Linfox engages those workers to perform services under the Contract, when the workers fail to obtain security clearance Linfox would need to either terminate their engagement or seek to redeploy them within the business (which would be unlikely to be successful), otherwise Linfox would lose the Contract, and the worker's position would be redundant.
28I do not believe that there is any real difference in the outcome for the workers. Either way, it is not possible for them to perform work which requires a security clearance, so I do not believe that the exemption would have a significant impact on them.
Conclusion
The applicant submits, and the Tribunal finds that:
(a)the exemption is appropriate and reasonable in the circumstances;
(b)the exemption does not go beyond what is necessary for it to comply with the Security Requirements;
(c)there are no non-discriminatory ways for the Applicant to comply with the Security Requirements;
(d)there are no exceptions or exemptions under the Act that apply to all of the conduct required to comply with the Security Requirements;
(e)it has taken, and will continue to take, reasonable steps to reduce the adverse effect of the acts in relation to which it requires the exemption by:
(1)notifying its Workforce that they may be adversely affected by the exemption, and providing information about how they can apply for Australian citizenship;
(2)maintaining comprehensive anti-discrimination policies;
(3)maintaining a concise and comprehensive procedure for dealing with discrimination-related complaints; and
(4)ensuring its Workforce are fully informed of their rights under these policies and procedures and under the EO Act, and are trained in issues of discrimination;
(f)if the Applicant were to allow a foreign citizen to work on this project in breach of the Security Requirements, the Applicant would face significant penalties and lose the Contract, with the result that the worker would not gain any material benefit;
(g)over the past 5 years, the Applicant has not:
(1)rejected a single job application; or
(2)redeployed or retrenched any employees;
under the terms of the Prior Exemption, which suggests that the number of individuals who will be adversely affected by the granting of the proposed exemption will be very small;
(h)any such adverse effect is outweighed by:
(1)the benefit to the Commonwealth of Australia in ensuring its contractors comply with security measures necessary to protect national security;
(2)the benefit to the Western Australian community through the Applicant’s contribution to the Western Australian economy and the creation of jobs; and
(3)the benefit to the Applicant and its officers in avoiding the significant penalties associated with failing to comply with the Security Requirements;
(i)the Applicant is willing and ready to comply with the conditions and limitations set out in paragraphs A to G above.
Orders
The Tribunal orders:
1.Pursuant to section 135 of the Equal Opportunity Act 1984 (WA) (EO Act), and subject to the conditions contained in Schedule 1, an exemption is granted to the Applicant from the operation of sections 37, 39 and 49 of the EO Act in respect of the activities specified in paragraph 3, for a period on and from 31 July 2020 for 5 years, or the duration of the Contract, whichever is the shorter.
2.The exemption is granted in respect of the operation of sections 37, 39 and 49 of the EO Act insofar as those sections relate to the 'race' (as that attribute is defined in section 4 of the EO Act) of the Applicant's Workforce.
3.The class of activities for which the exemption is granted is:
(a)Requiring members or potential members of the Workforce to provide details of their citizenship (including any changes to their citizenship) to enable the Applicant to determine whether they are permitted under the Security Requirements to participate in the provision of the Services or to have access to Defence Materials;
(b)Disclosing information about the citizenship of members of the Workforce to:
(i)the United States Department of State;
(ii)the Australian Department of Defence; or
(iii)any other organisation or government department for which or on whose behalf or at whose request the Applicant undertakes work in respect of which the Applicant has (directly or indirectly) an obligation not to transfer Defence Materials on the basis of citizenship;
(c)Maintaining a list, with distribution limited to only those officers and employees with a need to know, of members of the Workforce who are permitted by virtue of their citizenship to participate in the provision of the Services or have access to related Defence Materials so as to distinguish them from members of the Workforce who are not so permitted;
(d)Identifying by means of a pass that is coded in a manner that does not refer to citizenship whether the member of the Workforce has the necessary security clearance to participate in the provision of the Services or have access to related Defence Materials so as to distinguish them from members of the Workforce who are not so permitted;
(e)Restricting access to Defence Materials connected with the Services to particular members of the Workforce based on their citizenship;
(f)Restricting access to areas of its facilities connected with the provision of the Services to particular members of the Workforce based on their citizenship;
(g)Entering into agreements with the Applicant's employees, contractors, agents and consultants pursuant to which those third parties undertake to comply with the Security Requirements, and to take all practicable steps to assist the Applicant in complying with the Security Requirements;
(h)Rejecting applications to join the Workforce in positions relating to the provision of the Services or requiring access to the Defence Materials based on the job applicant's citizenship, and taking into account a person's citizenship in determining who should be offered employment or contract work requiring access to Defence Materials;
(i)Transferring members of the Workforce from the provision of the Services to work in other parts of the Applicant's business on the basis that, due to their citizenship (including a change to their citizenship), the Applicant may not permit them to participate in the provision of the Services;
(j)Terminating the employment or engagement of members of the Workforce on the basis that:
(i)due to their citizenship (including a change to their citizenship), the Applicant may not permit them to participate in the provision of the Services; and
(ii)it is not reasonable in all the circumstances to redeploy or transfer the members of the Workforce to another role within the Applicant's business, or within a business operated by one of the Applicants associated entities.
(k)Advertising positions within the Workforce as being open only to Australian citizens who can obtain the necessary clearances for access to the Defence Materials.
In this exemption:
'Commissioner' means the Commissioner for Equal Opportunity.
'Contract' means the Applicant's contract (including any extensions) with the Commonwealth of Australia to provide the Services to the Australian Defence Force.
'Defence Materials' means any materials or information in relation to which access or use is regulated by the Security Requirements.
'Security Requirements' means:
(a)requirements made by the Australian government, that governments Department of Defence or any other department of that government, including:
(i)requirements under the Defence Trade Controls Act 2012 (Cth) and the Defence Trade Controls Regulations 2013 (Cth);
(ii)requirements contained in the Defence Security Principles Framework;
(b)the requirements of laws of the United States of America, including but not limited to the Arms Export Control Act and the United States International Trafficking in Arms Regulations, including the requirements of any authorisation made under those laws; and
(c)requirements applying to the Applicant under its contract with the Commonwealth to provide the Services to the Australian Defence Force.
'Services' means the warehousing, disposal, distribution, information technology, logistics, and supply chain solutions and services which the Applicant has been engaged to provide to the Commonwealth of Australia and the Australian Defence Force, to which the Security Requirements apply.
'Tribunal' means the State Administrative Tribunal.
Workforce includes the Applicant's employees, contractors and contract workers who are engaged to participate in the provision of the Services in Western Australia.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS L EDDY, SENIOR MEMBER
17 SEPTEMBER 2020
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