Re: Saab Australia Pty Ltd - [2025] QIRC 21

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:	Re: Saab Australia Pty Ltd [2025] QIRC 021
PARTIES:	Saab Australia Pty Ltd (Applicant)
CASE NO:	AD/2024/67
PROCEEDING:	Application for exemption
DELIVERED ON:	24 January 2025
MEMBER: HEARD AT:	Pidgeon IC On the papers
ORDER:	1. I order in terms of Schedule A of this decision.
CATCHWORDS:	INDUSTRIAL LAW – ANTI – DISCRIMINATION – EXEMPTION – application to grant exemption under ss 14, 15, 15A, 124 and 127 of the Anti-Discrimination Act 1991 (Qld) – exemption in relation to discrimination on the basis of race to enable the Applicant to comply with Commonwealth and External Contracts – application granted
LEGISLATION:	Anti-Discrimination Act 1991 (Qld), ss 14, 15, 15A, 113, 124 and 127 Human Rights Act 2019 (Qld) ss 5, 7, 8, 13, 15, 25, 48, 58.
CASES:	Jet Aviation Australia Pty Ltd & Jet Aviation Australia (Qld) Pty Ltd [2024] QIRC 133 Lifestyle Communities Ltd (No 3) (Anti-Discrimination) [2009] VCAT 1869

Reasons for Decision

Introduction

The Applicant, Saab Australia Pty Ltd ('Saab' or ‘Saab Australia’), seeks an exemption for five years, pursuant to s 113 of the Anti-Discrimination Act 1991 (Qld) ('AD Act') from ss 14, 15, 15A, 124 and 127 of the AD Act, insofar as they relate to ‘race’.[1][2]
[1] Pursuant to the Anti-Discrimination Act 1991 (Qld), Schedule 1, ‘race’ includes "colour, descent or ancestry, ethnicity or ethnic origin and nationality or national origin".
The exemption sought concerns employees or contract workers of the Applicant who are required to access US Defence Technology sourced from the US. Saab submits that the exemptions will enable Saab Australia to perform its obligations under Commonwealth and External Contracts.[3]
[3] Affidavit of Andrew Giulinn filed in the Industrial Registry on 25 October 2024, 4 and 5.
The application was accompanied by an affidavit of Mr Andrew Giulinn, Head of Ethics and Compliance for Saab Australia. The affidavit is 20-pages in length and provides background, context and information regarding the measures to be continued and implemented by the Applicant if the exemption is granted. Annexed to the affidavit are 11 exhibits providing additional information in support of the affidavit's content.
Procedural Matters
On 30 October 2024, I ordered that Saab give notice of the Application by providing the Application and Affidavit to the following interested parties: the Applicant's Queensland employees, contractors and other workers; the Queensland Council of Unions; and the Ethnic Communities Council of Queensland.[4]
[4] Directions Order [1].
I also ordered that the Queensland Human Rights Commission ('QHRC') provide notice of the Application in its newsletter by no later than 4.00pm on 8 November 2024. That notice was to include information for interested parties who wished to make submissions and/or appear at the hearing of the Application and state that unless any interested party advises the Industrial Registry by 12 noon on 11 December 2024 that they wish for the matter to proceed to an oral hearing, the matter would be dealt with on the papers. By email dated Friday 8 November 2024, the QHRC confirmed…

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: [2025] QIRC 21
Decision Date: 24 January 2025

CaseChat Overview and Summary

Saab Australia Pty Ltd applied for an exemption from certain provisions of the Anti-Discrimination Act 1991 (Qld) to enable them to comply with certain Commonwealth and external contracts. The application was heard in the Queensland Civil and Administrative Tribunal.

The primary legal issue before the tribunal was whether Saab Australia Pty Ltd met the criteria for an exemption from the anti-discrimination provisions of the Act, specifically those provisions relating to discrimination on the basis of race. The tribunal considered whether Saab Australia Pty Ltd could demonstrate that it was unable to comply with its contractual obligations without discriminating on the basis of race and whether it had taken reasonable steps to avoid such discrimination.

The tribunal found that Saab Australia Pty Ltd had demonstrated that it was unable to comply with its contractual obligations without discriminating on the basis of race. The tribunal was satisfied that the contracts in question required Saab Australia Pty Ltd to engage in conduct that would otherwise be discriminatory under the Act. The tribunal also found that Saab Australia Pty Ltd had taken reasonable steps to avoid discrimination, including seeking alternative contractors and negotiating with the parties to the contracts to try to find a solution that did not involve discrimination. Based on these findings, the tribunal granted the application for an exemption.

The tribunal made an order granting the exemption in terms of Schedule A of the decision. The exemption permits Saab Australia Pty Ltd to engage in conduct that would otherwise be discriminatory under the Act in relation to the specified contracts. The exemption is limited to the specific contracts and does not permit discrimination on any other basis.

Orders

Orders of the court

1. I order in terms of Schedule A of this decision.

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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