Re MIM - [1996] QSC 11

IN THE SUPREME COURT
OF QUEENSLAND

No. 237 of 1995

Brisbane

Before the Hon. Mr Justice Shepherdson

[Re MIM]

IN THE MATTER of an opinion of the Anti-
Discrimination Tribunal given pursuant to
Section 228 of the Anti-Discrimination Act 1991

- and -

IN THE MATTER of an agreement between
Mount Isa Mines Limited and Australian
Manufacturing Workers' Union and others

JUDGMENT - SHEPHERDSON J.

Judgment delivered 19/2/1996

CATCHWORDS: ANTI-DISCRIMINATION ACT 1991. Appeal under s.233 in respect of opinion by Tribunal - whether appeal lies to the Court of Appeal or Judge of Trial Division. - "marital status" and "attribute" considered. Whether appeal succeeds on question of law.

Appearances: H. Fraser Q.C. for the appellant, Mt. Isa Mines Ltd instructed by Feez Ruthning, Solicitors.

Ms M. Wilson Q.C. with her Ms J. Dick, counsel for the respondent, Anti-Discrimination Tribunal.
C.A. Sciacca & Associates, solicitors for the respondent, Australian Workers Union.
Quinlan, Miller & Treston, solicitors for the respondent, Automative, Metals & Engineering Industrial Union of Employees, Queensland.

Hearing Date: 14 December, 1995

IN THE SUPREME COURT
OF QUEENSLAND

Brisbane No.237 of 1995

Before the Hon. Mr Justice Shepherdson

IN THE MATTER of an opinion of the Anti-
Discrimination Tribunal given pursuant to
Section 228 of the Anti-Discrimination Act 1991

- and -

IN THE MATTER of an agreement between
Mount Isa Mines Limited and Australian
Manufacturing Workers' Union and others

JUDGMENT - SHEPHERDSON J.

Judgment Delivered 19 February 1996

This matter is an appeal brought under s.233 of the Anti-Discrimination Act 1991. Section 233 reads:-
"233. The Commissioner, or a person with a relevant interest, may appeal, against a Tribunal an opinion, to the Supreme Court on a question of law."

Before turning to this section and what is meant by "Supreme Court" I shall recount the following undisputed facts.
Since mid 1994 Mount Isa Mines Limited ("ISA") had been attempting to negotiate an enterprise agreement with unions representing its employees. An agreement was subsequently reached between ISA and the Automotive Metals and Engineering Industrial Union of Employees, Queensland ("AMWU") and the Australian Workers' Union ("AWU") and representatives of the workforce.
After a first round of negotiations in 1994 a draft enterprise agreement was put to the unions and this provided for a remote area payment. The remote area payment was to be by way of a lump sum of $800 payable to all those employees of ISA who had 12 months or more continuous service with ISA. The payment was to be made upon certification of the enterprise agreement by the Industrial Relations Commission. At a mass meeting of employees held on 21 February 1995 the clause was rejected.
In June 1995 the next round of negotiations for an enterprise agreement commenced.
A single bargaining unit was established. That unit consisted of representatives of ISA, union officials and representatives of the workforce. The single bargaining unit agreed upon a lump sum payment. The form of payment as agreed provided for payment of a sum to each employee based on…

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.

Continue reading Re MIM

Details

AGLC: Re MIM [1996] QSC 11
Case: [1996] QSC 11
Decision Date: 19 February 1996

CaseChat Overview and Summary

Mount Isa Mines Limited ("MIM") brought an appeal against an opinion of the Anti-Discrimination Tribunal, pursuant to s.233 of the Anti-Discrimination Act 1991. The opinion in question concerned an enterprise agreement between MIM and certain unions, specifically addressing a payment of allowance clause. MIM argued that the clause did not constitute discrimination on the basis of "marital status" as defined by the Act. The Anti-Discrimination Tribunal had concluded otherwise, finding that the clause was indirectly discriminatory on the basis of "marital status." The primary issue for the court was whether the Tribunal's opinion was correct in law.

The court examined the definition of "marital status" under the Act and concluded that it focused on the fact that a person was married or a de facto spouse, without extending to the employment status of the spouse. The court held that the Tribunal erred in considering the employment status of the spouse as part of the attribute of "marital status." The court found that the clause in question did not discriminate on the basis of "marital status" within the meaning of the Act.

Accordingly, the court allowed MIM's appeal, set aside the Tribunal's opinion, and declared that the payment of allowance clause did not constitute discrimination on the basis of "marital status." The court also ordered that costs be paid by the Tribunal, as the appeal had succeeded.

Orders