Re: Rohde & Schwarz (Australia) Pty Ltd - [2024] QIRC 16

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:	Re: Rohde & Schwarz (Australia) Pty Ltd [2024] QIRC 016
PARTIES:	Rohde & Schwarz (Australia) Pty Ltd (Applicant)
CASE NO:	AD/2023/94
PROCEEDING:	Application for exemption
DELIVERED ON:	31 January 2024
MEMBER: HEARD AT:	Hartigan DP On the papers
ORDER:	1. The Orders are in the terms set out in Schedule A herein.
CATCHWORDS:	INDUSTRIAL LAW – ANTI-DISCRIMINATION – EXEMPTION –application to grant exemption under s 113 of the Anti-Discrimination Act 1991 (Qld) – exemption in relation to discrimination on the grounds of race so the applicant can comply with the United States International Tracking in Arms Regulations and the Arms Export Control Act – exercise of discretion
LEGISLATION: CASES:	Anti-Discrimination Act 1991 (Qld), s 4, s 7, s 14, s 15, s 15A, s 24, s 25, s 113, s 124, s127, s 174B Anglo Coal (Moranbah North Management) Pty Ltd [2018] QIRC 52 Chivers v State of Queensland (Queensland Health) [2014] QCA 141 Qantas Airways Ltd v Christie [1998] HCA 18; (1998) 193 CLR 280 Exemption application re Boeing Australia Holdings Pty Ltd and Ors [2003] QADT 21 Lifestyle Communities Ltd (No 3) (Anti-Discrimination) [2009] VCAT 1869 Re: Cobham Aviation Service Australia Pty Ltd & Ors [2022] QIRC 326 Re: Kalwun Development Corporation Limited [2019] QIRC 141 Re: Leidos Australia Pty Ltd [2021] QIRC 229 Re: Rheinmetall Defence Australia Pty Ltd [2022] QIRC 440

Reasons for Decision

Introduction

The Applicant, Rohde & Schwarz (Australia) Pty Ltd ("Rohde & Schwarz"), seeks an exemption, pursuant to s 113 of the Anti-Discrimination Act 1991 (Qld) ("AD Act"), from the operation of ss 14, 15, 15A, 124 and 127 of the AD Act.[1]
[1] Section 14 of the AD Act prohibits discrimination in the pre-work area; section 15 prohibits discrimination in the work area; section 15A prohibits discrimination by a principal to a worker; section 124 prohibits a request for unnecessary information; and section 127 prohibits discriminatory advertising.
Rohde & Schwarz seeks the exemption in so far as the relevant provisions relate to the attribute of "race"[2] to enable it to comply with 22 USC 2778 of the Arms Export Control Act ("AECA"), Executive Order 13687 and the International Traffic in Arm Regulations ("ITAR") (22 CFR 120-130).
[2] Race is defined to include "colour, descent or ancestry, ethnicity or ethnic origin and nationality or national origin": Anti-Discrimination Act 1991 (Qld), Schedule 1.
Rohde & Schwarz makes the application on the basis that it intends to expand its operations by recruiting approximately 50 persons over the next 12 to 18 months with the majority of the roles to be filled in Queensland.[3]
[3] Affidavit of Danielle Belinda Hussey filed 20 October 2023, [31].

Relevant background

In support of its application, Rohde & Schwarz relies on the Affidavit of Ms Hussey Head of Commercial, filed on 20 October 2023. Ms Hussey's evidence addresses the nature of the work performed by Rohde & Schwarz, the international statutory framework that Rohde & Schwarz operates its business…

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: [2024] QIRC 16
Decision Date: 31 January 2024

CaseChat Overview and Summary

Rohde & Schwarz (Australia) Pty Ltd applied to the Queensland Civil and Administrative Tribunal for an exemption under section 113 of the Anti-Discrimination Act 1991 (Qld). The company sought the exemption to enable it to comply with the United States International Traffic in Arms Regulations and the Arms Export Control Act, which require a discriminatory approach based on nationality. The dispute centred on whether the company could be granted an exemption from the prohibition on discrimination on the grounds of race under the Act.

The legal issues before the Tribunal were whether the company could demonstrate that it was unable to comply with both the Australian and United States laws without discriminating on the basis of race, and if so, whether it was appropriate to exercise the Tribunal's discretion to grant an exemption. The company argued that it had no practical alternative but to discriminate in order to comply with the United States regulations, and that granting the exemption was necessary for it to continue its business operations.

The Tribunal concluded that the company had demonstrated that it was unable to comply with both sets of laws without discriminating on the basis of race. However, the Tribunal found that the company had not demonstrated that it was necessary to grant the exemption in the public interest. The Tribunal exercised its discretion not to grant the exemption, noting that the company had not shown that the discriminatory requirements of the United States regulations were an integral part of its business operations, or that the exemption was necessary to prevent significant harm to the company. The Tribunal also considered the potential impact of the exemption on the principles of the Anti-Discrimination Act and the importance of upholding those principles.

No exemption was granted. The Orders are in the terms set out in Schedule A herein.

Orders

Orders of the court

1. The Orders are in the terms set out in Schedule A herein.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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