RAYTHEON AUSTRALIA PTY LTD - [2011] SAEOT 6

EQUAL OPPORTUNITY TRIBUNAL
(District Court Administrative and Disciplinary Division)
In the Matter of AN APPLICATION FOR EXEMPTION UNDER THE EQUAL OPPORTUNITY ACT 1984
RAYTHEON AUSTRALIA PTY LTD
[2011] SAEOT 6
Reasons for Decision of His Honour Judge Costello, Member Ms H Jasinski and Member Mr R Altman
26 August 2011
DISCRIMINATION LAW
Application for renewal of exemption from operation of sections 52 and 54 of the Equal Opportunity Act 1984 (SA) - Exemption sought to permit discrimination on the grounds of nationality of employees, prospective employees and contract workers - Applicant requires access to sensitive defence technology controlled by government of the United States of America - in order to access technology Applicant is obliged to discriminate against certain persons on the basis of their nationality - In exercising its power to exempt Tribunal entitled to take into account wider public interest including interest of South Australia maintaining a viable defence-based industry - Application granted upon conditions
Equal Opportunity Act SA 1984, referred to.
Pulteney Grammar School v Equal Opportunity Tribunal & Ors (2007) SASC 308, discussed.

RAYTHEON AUSTRALIA PTY LTD
[2011] SAEOT 6
Introduction

Raytheon Australia Pty Ltd (“Raytheon”) has applied, pursuant to s 92 of the Equal Opportunity Act 1984 (SA) (“the Act”), to renew an exemption from the provisions of ss 52 and 54 of the Act, which exemption was granted to it by this Tribunal on 28 April 2008.
The Acting Commissioner for Equal Opportunity has appeared on the application through her counsel, Mr Love. Although she does not oppose the application, she does not consent to it.
Sections 52 and 54 of the Act provide as follows:
52—Discrimination against applicants and employees
(1)     It is unlawful for an employer to discriminate against a person on the ground of race—
(a)     in determining, or in the course of determining, who should be offered employment; or
(b)     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 race—
(a)     in the terms or conditions of employment; or
(b)     by denying or limiting access to opportunities for promotion, transfer or training, or to other benefits connected with employment; or
(c)     by dismissing the employee; or
(d)     by segregating the employee from persons of other races; or
(e)     by subjecting the employee to other detriment.
…
54—Discrimination against contract workers
(1)     This section applies to a principal for whom work is done by persons (contract workers) under a contract between the principal and another where the contract workers are employed or engaged by a person other than the principal.
(2)     It is unlawful for a principal to enter into a contract or arrangement with another for work to be performed by contract workers under which a person is to discriminate against a contract worker on the ground of race.
(3)     It is unlawful for the principal to discriminate against a contract worker on the ground of race—
(a)     in the…

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: [2011] SAEOT 6
Decision Date: 26 August 2011

CaseChat Overview and Summary

Raytheon Australia Pty Ltd sought to renew an exemption from sections 52 and 54 of the Equal Opportunity Act 1984 (SA) ("the Act"), which prohibit discrimination on the basis of race. The exemption was necessary for Raytheon to comply with US regulations governing the transfer of sensitive defence technology. The Tribunal had to decide whether to renew the exemption considering the broader public interest and Raytheon's business requirements. The court found that the exemption was necessary for Raytheon to comply with US regulations and avoid significant penalties, and that it would be unreasonable to deny the exemption given the circumstances. Furthermore, the exemption was in the wider public interest as it supported the development of a viable defence-based industry in South Australia. The exemption was granted for three years, subject to conditions aimed at minimizing the discriminatory impact and ensuring compliance with the Act. These conditions included limiting the exemption to conduct necessary for Raytheon's contractual obligations, taking steps to avoid discriminatory practices, and restricting access to sensitive information to authorized personnel.

Orders