Mount Isa Mines Ltd v Marks, L
[1992] FCA 109
•13 MARCH 1992
Re: MOUNT ISA MINES LIMITED
And: LOU MARKS; EDWARD EMMETT; JENNIFER GEORGE; CLIVE BROWN; JENNIFER MASSIE;
DAVID NOLAN; ROBERT HART; KERRY KLINEBERG; BARRY NUTTER; NEIL BARTHOLOMAEUS;
LESLIE WRIGHT; DARCY McGAURR; JOHN THOMSON; SARAH BUTTERWORTH; BARRY DURHAM;
JOHN WOODROW; BRENDAN PREISS; MARGARET CONLEY; NATIONAL OCCUPATIONAL HEALTH
AND SAFETY COMMISSION and HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION
No. G743 of 1991
FED No. 109
Sex Discrimation
(1992) 106 ALR 702
(1992) 35 FCR 96
(1992) 26 ALD 411 (extracts)
COURT
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Davies J.(1)
CATCHWORDS
Sex Discrimination - preparation by National Occupational Health and Safety Commission of standard and code of practice for persons engaged in the lead industry - whether Commission bound by the Sex Discrimination Act - whether Commission entitled to take the Sex Discrimination Act into account - whether discrimination for health reasons between males and females in lead risk industries would breach that Act - whether Commission unduly limiting its consideration.
National Occupational Health and Safety Commission Act 1985 (Cth) - s.38 Sex Discrimination Act 1984 (Cth) - ss.5, 14
HEARING
SYDNEY
#DATE 13:3:1992
Counsel for the Applicant: Sir Maurice Byers QC and Mr M. Cashion
Solicitor for the Applicant: Allen Allen and Hemsley
Counsel for the First to Mr C. Simpson QC and Mr A. Robertson
Nineteenth Respondents:
Solicitor for the First to Australian Government Solicitor
Nineteenth Respondents:
Counsel for the Twentieth Respondent: Mr D.M.J. Bennett QC and Ms R.S. McColl
Solicitor for the Twentieth Respondent: Mr C. Sidoti
ORDER
The Court declares that paragraph 14(1)(d) of the proposed national inorganic lead control standard and paragraph 12.1(d) of the proposed national code of practice for the control and safe use of inorganic lead at work, both dated 4 December 1991, would be invalid if they were adopted.
The Court orders that the Nineteenth Respondent and its members, before adopting a standard and code for the lead industry, consider further whether there are any further appropriate provisions which, in their opinion, should, from the point of view of occupational health and safety, be included therein.
The Nineteenth Respondent pay the Applicant's costs.
NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
JUDGE1
In this application, the applicant, Mt Isa Mines Limited ("Mt Isa") seeks orders of review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) and s.39B of the Judiciary Act 1903 (Cth) in respect of an alleged decision or conduct leading to a decision to be taken by the National Occupational Health and Safety Commission ("the Commission"). The respondents are the Commission, the individual members of the Commission and the Human Rights and Equal Opportunity Commission ("HREOC"), which sought to be joined in the proceedings on the ground that it had an interest in upholding the course being taken by the Commission.
The Commission was established by the National Occupational Health and Safety Commission Act 1985 (Cth) ("the Act"). Section 7 defines the objects of the establishment of the Commission as follows:-
"(a) the development among the members of the community of an awareness of issues relevant to occupational health and safety matters and the facilitation of public debate and discussion on such issues;
(b) the provision, in the public interest, of a forum by which representatives of the Government of the Commonwealth, the Governments of the States and of employers and employees may consult together in, and participate in the development and formulation of policies and strategies relating to, occupational health and safety matters; and
(c) the provision of a national focus for activities relating to occupational health and safety matters."
Section 8 specifies the functions of the Commission. Included are the following:-
"(a) to formulate policies and strategies relating to occupational health and safety matters;
...
(d) to review laws and awards relating to occupational health and safety matters;
...
(f) to declare national standards and codes of practice; ...
(r) to consult and co-operate with other persons, organizations and governments on occupational health and safety matters;"
The term "occupational health and safety matters" is defined in s.3 as follows:-
"`occupational health and safety matters' means matters relating to occupational health or occupational safety and, without limiting the generality of the foregoing, includes matters relating to one or more of the following:
(a) the physiological and psychological needs and well-being of persons engaged in occupations;
(b) work-related death;
(c) work-related trauma;
(d) the prevention of work-related death or work-related trauma;
(e) the protection of persons from, or from risk of, work-related death or work-related trauma;
(f) the rehabilitation and re-training of persons who have suffered work-related trauma".
Part VI of the Act deals with national standards and codes of practice. Section 38 provides, inter alia:-
"(1) The Commission may, by writing, declare national standards and codes of practice relating to occupational health and safety matters.
(2) Except as otherwise provided by a law other than this Act or by an award or instrument made under such a law, a national standard or code of practice is an instrument of an advisory character.
(3) A national standard or code of practice shall be published in the prescribed manner.
(4) Before declaring a national standard or code of practice, the Commission shall, by notice published in accordance with the regulations -
(a) set out the standard or code of practice the Commission proposes to declare;
(b) invite interested persons to make representations in connection with the proposed standard or code of practice by such date as is specified in the notice; and
(c) specify an address or addresses to which representations in connection with the proposed standard or code of practice may be forwarded.
(5) A person may, not later than the date specified in the notice, make representations to the Commission in connection with the proposed standard or code of practice, and the Commission shall give due consideration to any representations so made and, if the Commission thinks fit, alter the proposed standard or code of practice."
The Commission has been considering for some time the publication under s.38 of a standard and code of practice for persons and companies engaged in the lead industry, in which the presence of lead poses a risk to health. Mt Isa, a producer of lead, is one such company. The task of the Commission is a controversial one for exposure to lead may affect reproductive capacity and women may be more at risk than men. Lead may be harmful to the unborn foetus and undue lead levels in a mother who breastfeeds a child may affect the health and welfare of the child. Thus, exposure to lead has a tendency to affect women more than men. In the result, a view has developed that the imposition of too strict health precautions can lead to discrimination against women in employment in lead risk industries.
Because of the background I have mentioned, officers of HREOC took an interest in the draft standard and draft code which officers of the Commission were preparing. This present application is brought on the ground that, in the preparation of the draft standard and code intended to be adopted by the Commission and published under s.38(3) of the Act, officers of the Commission were overborne by sex discrimination considerations and failed to give proper attention to what was the concern of the Commission, namely, the adoption of proper standards and codes to guide persons in lead risk industries for the protection of health and safety.
Sir Maurice Byers QC, with whom Mr M. Cashion appeared for Mt Isa, faintly suggested that occupational health and safety was the sole consideration of the Commission and that the Commission ought to put concepts of sex discrimination totally from its mind. However, the Commission cannot look at matters of health and safety in the abstract. Its task is to prepare standards which will be a guide to the industry. Therefore the Commission's task is to prepare standards and codes which are practical and acceptable. The Commission is entitled, when preparing a standard or code for the lead industry, to take into account the part which women do and can play in that industry and therefore to propose and adopt a standard and code which, in the view of the Commission, is fair to women, whilst setting proper and adequate standards and practices for adoption throughout the lead industry.
I accept, however, the submission of Sir Maurice that it is not the task of the Commission to concern itself with the implementation of the Sex Discrimination Act 1984 (Cth). That is the task of the Sex Discrimination Commissioner, of HREOC and of the Federal Court. The crux of the issue in this application is whether the officers of the Commission, who have been preparing the draft standard and code, were overborne by the consideration of matters with which the Sex Discrimination Act is concerned, and thereby failed to develop a proper and adequate standard and code which is the task and concern of the Commission.
Before entering into the substance of the issue, I should deal with one aspect of the matter which arose in the course of the many consultations that occurred. By letter dated 25 October 1991, an officer of the Attorney-General's Department not only advised the Commission that it was bound to comply with the provisions of the Sex Discrimination Act but also advised the Commission that the health of an unborn foetus was not its concern for an unborn foetus was not a person and had no rights. I need not discuss the basis for this advice for it was not as such adopted by the officers of the Commission. I merely wish to make it clear that, in my view, the Commission's task is to concern itself not merely with "persons engaged in occupations" but also with the impact which their occupations may have upon the health of members of their families, the effect of lead upon reproduction, the effect of lead upon an unborn foetus, the effect of lead upon a child who breastfeeds and like matters. These are all matters which are very much the concern of the Commission. The definition of "occupational health and safety matters" is not to be read in any technical or limited way, but bears the meaning it would have in ordinary parlance to a man in the street. The effect which a worker's employment may have upon the health of his or her children is within that concept.
I turn now to the main issues. It appears that HREOC took the view that any standard or code or practice adopted for the lead industry which distinguished between males and females would conflict with the provisions of the Sex Discrimination Act. HREOC itself took an active interest in the problems in the lead industry with a view to persuading employers to introduce protective measures applicable to all employees which would reduce the level of exposure to such an extent that neither male nor female employees, nor other persons, nor members of their families would be at risk. HREOC therefore introduced a practice of receiving applications under s.44 of the Sex Discrimination Act from employers in the lead industry for exemption from the operation of that Act. I assume that HREOC granted such exemptions but sought to persuade employers to introduce protective measures suitable to cover the whole of the work force in an equal manner. In this way, HREOC took an active interest in the discriminatory effect of practices adopted in the lead industry.
Mr D.M.J. Bennett QC, with whom Ms R.S. McColl appeared for HREOC, submitted that HREOC's approach was correct and, indeed, that any discrimination as between males and females in the lead industry would breach the Sex Discrimination Act unless an exemption were granted under s.44.
It is not necessary for me to determine this point in any final way. I should say, however, that I doubt that the submission is correct. Section 5 of the Sex Discrimination Act provides, inter alia:-
"(1) For the purposes of this Act, a person (in this sub-section referred to as the `discriminator') discriminates against another person (in this sub-section referred to as the `aggrieved person') on the ground of the sex of the aggrieved person if, by reason of -
(a) the sex of the aggrieved person;
(b) a characteristic that appertains generally to persons of the sex of the aggrieved person; or
(c) a characteristic that is generally imputed to persons of the sex of the aggrieved person;
the discriminator treats the aggrieved person less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person of the opposite sex.
(2) For the purposes of this Act, a person (in this sub-section referred to as the `discriminator') discriminates against another person (in this sub-section referred to as the `aggrieved person') if the discriminator requires the aggrieved person to comply with a requirement or condition -
(a) with which a substantially higher proportion of person of the opposite sex to the aggrieved person comply or are able to comply;
(b) which is not reasonable having regard to the circumstances of the case; and
(c) with which the aggrieved person does not or is not able to comply."
Section 14 of the Sex Discrimination Act provides, inter alia:-
"(1) It is unlawful for an employer to discriminate against a person on the ground of the person's sex, marital status or pregnancy -
(a) in the arrangements made for the purpose of determining who should be offered employment;
(b) in determining who should be offered employment; or
(c) in the terms or conditions on which employment is offered.
(2) It is unlawful for an employer to discriminate against an employee on the ground of the employee's sex, marital status or pregnancy
(a) in the terms or conditions of employment that the employer affords the employee;
(b) by denying the employee access, or limiting the employee's access, to opportunities for promotion, transfer or training, or to any other benefits associated with employment;
(c) by dismissing the employee; or
(d) by subjecting the employee to any other detriment."
The Sex Discrimination Act specifies some exceptions to the general principles. One is in s.7 which deals with pregnancy. I need not discuss that save to say that one of the concerns of Mt Isa and of other employers appears to be that women working in the lead industry may be seeking to become pregnant or may become pregnant at a time when their lead levels are unduly high.
The view taken by HREOC is that, for the purposes of s.5 of the Sex Discrimination Act, it is a characteristic of women that they may become pregnant and bear children. HREOC would also say that, if it is a characteristic of women that their reproductive capacity may be damaged by a lower lead level than is the case with males, a view which officers of the Commission appear to accept, then that also is a characteristic of the type described in s.5(1). HREOC takes the general view that, subject to the exceptions which the Sex Discrimination Act specifies, to discriminate by reason of such characteristics is unlawful.
I would not myself read s.5 in such absolute terms. If discrimination is on the basis of danger either to the health of a woman employee, by reference to the level of lead which may affect reproductive capacity, by reason of the danger of lead to an unborn foetus or by reference to the danger of lead to a child who breastfeeds, I doubt that such discrimination is discrimination on the basis of sex as defined in s.5 of the Sex Discrimination Act. Rather it would be discrimination on the basis of health. Nor would I describe the position of a woman who was seeking to become pregnant or a woman who was pregnant or a woman who was breastfeeding a child as a circumstance that was the same or not materially different from that of a male employee in the lead industry. Nor on a prima facie basis, would I regard any proper practice recommended by the Commission in a standard or code for the lead industry as being one which was "not reasonable" having regard to the circumstances of the case, for the purposes of ss.5 and 7 of the Sex Discrimination Act.
It seems to me that compliance by employers in the lead industry with any reasonable and appropriate standard and code which the Commission thought it proper to publish would not be likely to infringe any provision of the Sex Discrimination Act. Thus, I do not accept that exemption from the Sex Discrimination Act is required by an employer who desires to lay it down as a rule of practice that a woman who is breastfeeding a child should not work in a lead risk environment.
I would add, moreover, that the Sex Discrimination Act proscribes action which discriminates "on the ground of the sex of the aggrieved person". To determine this issue, the facts of the particular case must be examined. When a complaint of sex discrimination is lodged under the Sex Discrimination Act, the complaint is considered first by the Sex Discrimination Commissioner. If the Commissioner finds that there was an act of prohibited discrimination, the Commissioner endeavours by conciliation to effect a settlement of the matter. If the Commissioner cannot effect such a settlement, the Commissioner refers the matter to HREOC, which then enquires into the complaint. If HREOC finds in favour of the complainant and makes an order with which the respondent does not comply, proceedings may be instituted in the Federal Court to enforce the determination of HREOC. In the Federal Court, the matter is looked at afresh.
Against this background, I turn to the facts of the present proceedings. I need not discuss them in any great detail for the ultimate facts stand out clearly.
On 11 October 1990, Mt Isa, being concerned with the constitution of an Expert Review Group or Lead Expert Working Group, wrote a lengthy letter to the Commission stating that "the Commission seriously misunderstood and exceeded its statutory purposes and powers." Mt Isa requested the Commission to take advice from the Attorney-General's Department. Unfortunately, the advice which the Commissioner received from the Attorney-General's Department did not advance Mt Isa's contention for that advice was to the effect that occupational health and safety matters did not encompass the health of the unborn foetus. The advice from the Attorney-General's Department also said:-
"35. Accordingly, in exercising your powers under the NOHSC Act you are obliged to avoid treating women less favourably then, in circumstances that are the same or not materially different you would treat men by reason of a characteristic that appertains generally to women (eg the capacity to become pregnant)."
That advice referred to s.26 of the Sex Discrimination Act which action makes it unlawful for any person who performs any function or exercises any power under Commonwealth law to discriminate on the ground of another person's sex. In these present proceedings, no party has contended that s.26 has application to the function of the Commission in establishing an appropriate standard and code in the lead industry.
On 3 July 1991, Dr Cathy Mead, the chairperson of the Lead Expert Working Group, wrote a lengthy report to the Commission which included the following paragraph:-
"Anti-discrimination law prohibits treating men and women differently. Discriminating against women on the basis of `child-bearing capacity' would amount to sex discrimination, and it would not be open to Worksafe to promulgate a standard which was discriminatory in that way. This is irrespective of whether there is a toxicological or health-based reason for such action. Obviously, it would have been simpler if the reproductive effects on men and women occurred at the same blood lead level. The LEWG doesn't believe this has been demonstrated to be the case."
Minutes of a meeting of the Commission held on 17 September 1991 record, inter alia:-
"19. The National Commission CONSIDERED the issues of the accommodation of equal opportunity and employers' and employees' duties in the lead standard; the implications of the potential to compromise the employer's duty of care by imposition of a duty on the employee to inform the employer of risk; and the legal liability of all involved parties. Copies of preliminary legal advice from a Queen's Counsel briefed at the request of the National Commission were made available to members."
Minutes of a meeting of the Lead Expert Working Group held on 13 June 1991 record, inter alia:-
"Ms P. Hall presented a summary paper of issues involved, including legal opinion on the proposed removal levels for employees planning to have a family. Ms P Hall's paper is attached to these minutes. Members AGREED that the proposed standard should be modified so that it will not be in conflict with the Sex Discrimination Act 1984."
Notes presented for Agenda Item 6 to be considered by the Commission on 4 December 1991 record, inter alia:-
"6. The lead task force recommended a means of accommodating both OHS and EEO requirements in the standard. Task force recommendations are summarised below and resulting amendments made to the standard and code of practice are detailed at Attachment 2. Exclusions from lead-risk jobs
(a) Exclusion from lead-risk jobs to be provided for where authorised by law. This would include where an exemption has been granted under anti-discrimination legislation. Procedures for obtaining such an exemption will be issued by the HREOC in the form of guidelines which will be appended to the code of practice. When available these guidelines will be forwarded to NOHSC members. HREOC indicated that they hope a draft can be made available to Commission members prior to the December 4 meeting."
The part which officers of HREOC played in the discussions is set out in an affidavit by the secretary of HREOC, Mr Chris Sidoti, who states inter alia:-
"10. In relation to the preparation of the lead standard the Commission (HREOC) has been involved as follows: ...
iii) In November 1988 Worksafe (the National Occupational Health and Safety Commission) held a national workshop on the safe use of lead which was attended by the Sex Discrimination Commissioner. At the conclusion of the Workshop it was agreed that a draft discussion paper and a Proposed National Standard and Code of Practice would be further developed taking into account the views expressed at the workshop and that a tripartite study group, which would include a representative of the Commission, would visit workplaces employing lead processes. iv) On 16 and 17 March 1989 the Sex Discrimination Commissioner visited the Mount Isa mines of the applicant together with representatives from the ACTU, CAI, State Occupational Health Commissions, the Australian College of Occupational Medicine, State Equal Opportunity bodies and Worksafe. v) In March 1990 the South Australian Equal Opportunity Commission convened a National Workshop on Women and Lead. The Sex Discrimination Commissioner presented a paper to that Workshop.
vi) In March 1990 Worksafe released `Lead - A Public Discussion Paper' and called for public submissions in response to the document. The Sex Discrimination Commissioner prepared and forwarded a detailed submission in response.
vii) On 9 August 1990 Worksafe held a `Lead Forum' where discussion of the Worksafe document took place. The Sex Discrimination Commissioner addressed that forum. viii) In July 1991 the Sex Discrimination Commissioner delivered a paper on the lead industry and foetal protection policies in the United States and Australia to the Women, Management and Industrial Relations Conference held at Macquarie University. ix) On 14 November 1991 the Sex Discrimination Commissioner and I attended a meeting of the Worksafe Lead Task Force to discuss further the provisions in the proposed National Standard and Code dealing with the employment of women in the lead industry. At that meeting the Task Force reached substantial agreement on the provisions."
As a result of these discussions, a proposed national inorganic lead control standard and a draft national code of practice for the control and safe use of inorganic lead at work, both dated 4 December 1991, were prepared with the intention of being considered by the Commission at its meeting on 4 December 1991. Apparently, adoption has been postponed pending these proceedings.
The standard included the following paragraphs which are of particular interest for our purposes:-
"14(1) Criteria for exclusion from working in a lead-risk job are:
(a) personal medical condition;
(b) pregnancy;
(c) breast feeding; and
(d) such other basis as may be permitted under relevant anti-discrimination legislation.
(2) These exclusions do not apply to non lead-risk jobs. ...
15(24) If the results of biological monitoring reveal that the confirmed blood lead level is at or above 2.9 micro-grams mol/L (60 micro-grams g/100 mL); or the employer or employee considers that an excessive exposure to lead has occurred, the employer shall:
(a) immediately remove the employee from the lead-risk job to a job that is not a lead-risk job;
(b) arrange for the employee to have a medical examination by an authorised medical practitioner within seven days; and
(c) provide the authorised medical practitioner with a copy of the form in Schedule 4 with Part A filled in, signed and dated by the employer.
(25) If an employee advises the employer that she is pregnant or is breast feeding, the employer shall immediately remove the employee from the lead-risk job to a job that is not a lead-risk job." ...
17(6) an employee knowingly pregnant or breast feeding shall advise the employer as soon as practicable."
The code included the following paragraphs:-
"7.1 Employers shall ensure that the information supplied to job applicants includes as a minimum the following:
(a) lead is a toxic substance which is retained within the body long-term;
(b) lead can affect the nervous and reproductive systems, reproductive system, kidneys and interfere with the ability of the body to make haemoglobin;
(c) the unborn child is particularly susceptible to the effects of lead and on this basis employees who are pregnant or breastfeeding are excluded from working in lead-risk jobs;
...
12.1 Regarding exclusion from working in a lead-risk job:
(a) Individuals with certain medical conditions (such as impaired renal function, anaemia, haemoglobinopathies, neuropathies and reproductive problems) may be more susceptible to the adverse effects of lead on health. Exclusion from working in a lead-risk job on such grounds should be in accordance with section 15 of the standard, Health Surveillance.
(b) Lead is a particular health risk to the fetus (sic). A pregnant employee should keep her blood lead level below 30 micro-grams g/100 mL and as low as possible.
(c) Infants are more susceptible to the health effects of lead than adults. A breastfeeding employee should keep her blood lead level below 30 micro-grams g/100 mL and as low as possible.
(d) We are advised by HREOC that employers wishing to exclude women, other than those pregnant or breastfeeding, from lead-risk jobs will need to seek an exemption from the relevant Sex Discrimination legislation."
Otherwise, the proposed standard and code did not distinguish between male and female employees, notwithstanding the view earlier expressed by Dr Mead, which I have already set out, that the Expert Working Group considered that the effects on reproduction did not occur at the same blood levels for both males and females, or at least that it had not been demonstrated that that was so.
As can be seen, particular provisions applied to pregnant women and women breastfeeding children. There is a note in draft minutes prepared for a meeting of the Expert Working Group of 24 April 1991 that members discussed "Whether to exclude certain women on the grounds of pregnancy and breastfeeding. Miss P. Hall advised members that this issue would not conflict with the Sex Discrimination Act". But on what basis or with what authority Miss Hall gave that advice is not disclosed.
Examples of matters that the proposed standard and code might have included, but did not include, may be inferred from an address given by the Sex Discrimination Commissioner, Quentin Bryce A.O., to a National Occupation Health and Safety Lead Forum held on 9 August 1990. The Commissioner said, inter alia, in criticism of an early draft of the proposed standard:-
"The Proposed Standard is discriminatory.
It discriminates against women. The discriminatory aspects of the Proposed Standard are contained in the requirements for medical certification. These passages are: 19.3 Medical certification for suitability to commence work should take into account age, potential for foetal exposure, general health and target organ susceptibility.
19.5 Criteria for exclusion from medical certification include:
a. Age less than 16 years. An employer shall not permit a person below the age of 16 years to be present in a lead process area;
b. Potential for a foetus to be exposed to an elevated maternal blood level of greater than 30 micro-grams g/100 ml at conception or at any stage of development (overtly
discriminatory and offensive to women) c. Target organ susceptibility, including: i. impaired renal function, ii. anaemia, haemoglobinopathies, iii. neuropathies, and iv. reproductive problems. (NOSHC 1990, p 140 - emphasis added) The proposed standard calls for the identification of `non lead risk' jobs, and for non-discriminatory employment practices in relation to these.
This is welcome as far as it goes.
But for jobs identified as `lead risk' the draft Code takes an approach which is completely unacceptable. It fails to protect the rights of all workers to the safest working conditions feasible.
It fails to respect the right of women to work without discrimination."
See also an address given by Valerie Pratt of the Affirmative Action Agency to the same forum held on 9 August 1990. Ms Pratt referred to a 1978 standard of the U.S.A. Occupational Safety and Health Administration which stated:-
"Exposures to lead can have serious effects on the reproductive function in males and females ... because of the demonstrated adverse effects of lead on reproductive function in male and female, as well as the risk of genetic damage of lead on both ovum and sperm, it recommends a
micro-grams g/ml maximum permissible blood lead level in both males and females who wish to bear children."
I do not mention these matters by way of suggesting that any particular provision should be included in the standard or code. As to the content of any standard or code, I express no opinion whatever.
However, it is clear from paragraph 14 of the proposed standard of 4 December 1991 and from paragraph 12 of the proposed code of 4 December 1991 that the officers of the Commission thought that the Commission could go no further than to make special provision for pregnant women and women who are breastfeeding, for to go further would be to breach or to recommend that employers breach the Sex Discrimination Act. Paragraph 14 of the proposed standard states that the criteria of exclusion from working in a lead-risk job are, in addition to the stated criteria, "(d) such other basis as may be permitted under relevant anti-discrimination legislation". Paragraph 12.1(d) of the code shows that the persons who drafted the code took the view that employers who wished to exclude women other than those who are pregnant or breastfeeding from lead-risk jobs would need to seek an exemption under the Sex Discrimination Act.
Sir Maurice Byers submitted that, if it limited its consideration in this way, the Commission would fail to deal with matters that were clearly before it and which were its function to consider. Sir Maurice submitted that officers of the Commission had, by deferring to HREOC, abrogated the Commission's function or a part of its function to deal with the health and safety aspects of employment in lead risk industries and to lay down, in the form of a recommendatory standard and code, what it considered to be proper and appropriate safeguards for employees in the workplace.
I agree with Sir Maurice's submission in this respect. It seems to me that those who drafted the proposed standard and code did so under a mistaken view that they were precluded from going further by the Sex Discrimination Act. In my opinion, the Commission has a duty to perform and, if it is of the view that certain practices are desirable in the interests of health and safety, then its function is to recommend what those practices should be.
For the reasons I have already given, it is doubtful that discrimination on health grounds would infringe the Sex Discrimination Act. But even if it would, a statement by the Commission of appropriate safety precautions cannot infringe the Sex Discrimination Act. If an employer is of the view that exemption from the Sex Discrimination Act must be obtained under s.44 of the Sex Discrimination Act from HREOC before compliance with the standard and code, then the employer would be able to seek exemption from HREOC on the ground that it wished to comply with the safeguards which the Commission had recommended as desirable. HREOC would then consider whether to grant such an exemption. But it would have before it the standard and code of practice issued by the Commission and would no doubt take that into account.
In brief, the Commission is entitled to take account of the object which the Sex Discrimination Act is designed to achieve, namely lack of discrimination on grounds of sex and it should, in any event, attempt to formulate a standard that is fair to employees whether male or female. But the Commission is not limited in its consideration by anything set down in the Sex Discrimination Act.
Sex discrimination is a matter for the Sex Discrimination Commissioner, for HREOC and for the Federal Court. Occupational health and safety is a matter for the Commission. Those who drafted the proposed code and standard appear to have abrogated a part of the function of the Commission by accepting that HREOC should through its exemption process establish proper safety precautions for the lead industry. Yet the task of establishing occupational health and safety standards is specifically conferred upon the Commission. Its function is to form its view about those matters and to state its views in the standards and codes which it publishes under s.38 of the Act.
Thus, the officers of the Commission who have drafted the proposed standard and code have done so under a misapprehension of law as to the effect and ambit of the Sex Discrimination Act.
Having expressed these views, I would prefer simply to make an order for costs against the Commission and to leave the matter to the Commission for its consideration in the light of these reasons for decision.
However, as the views I have expressed are disputed by HREOC and the Commission, it seems to me desirable that I should make an order which provides a sound foundation for an appeal should any party desire to institute one.
In the circumstances, I have come to the view that I should declare that paragraph 14(1)(d) of the proposed standard and paragraph 12.1(d) of the proposed code would be invalid if they were adopted and I shall grant a mandatory injunction requiring the Commission and the members of the Commission before adopting a standard and code for the lead industry to consider further whether there are any other appropriate provisions which, in their opinion, should, from the point of view of occupational health and safety, be included therein.
The jurisdiction of the Court has been challenged on the footing that was has occurred has not been a final decision by the Commission, not an ultimate and operative decision in the sense explained in Australian Broadcasting Tribunal v. Bond (1990) 170 CLR 321. I accept that that is so but it seems to me that the subject matter of these proceedings is concerned with conduct undertaken before the adoption of a code and standard. The complaint of Mt Isa has been that, as a result of a misapprehension of law, far too much attention has been given to matters of sex discrimination and not enough to the subject matters which should be the concern of the Commission. I agree with that view. It is desirable that the preparation and issue of the standard and code not be approached on an incorrect basis in law.
For this reason, which finds its justification in s.6 of the Administrative Decisions (Judicial Review) Act or in s.39B of the Judiciary Act, I am of the opinion that the orders I have mentioned should be made.
The applicant's costs should be paid by the Commission.
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