QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Re: Rohde & Schwarz (Australia) Pty Ltd [2024] QIRC 016 |
PARTIES: | Rohde & Schwarz (Australia) Pty Ltd |
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: 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…
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- Case
- [2024] QIRC 16
- Decision Date
CaseChat Overview and Summary
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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