Salvation Army - Commission of Equal Opportunity No. Dcaat-01-490 Summary

SALVATION ARMY - TOWARDS INDEPENDENCE NETWORK SERVICES V COMMISSIONER FOR EQUAL OPPORTUNITY
[2001] SADC 172
Judge Bishop, Members Bachmann and Steuart
District Court Administrative And Disciplinary Division

On 26 September 2001, the applicant (“Salvation Army - Towards Independence Network Services”) made application, pursuant to section 92 of the Equal Opportunity Act 1984 “(the Act”), for an exemption from the provisions of sections 30 and 52 of the Act, so as to enable the applicant to employ one full-time female worker and one full-time male worker, both of Aboriginal descent, in the applicant’s Stabilisation Unit. On 29 October 2001, the applicant made further application for a similar exemption, so as to enable the applicant to employ one full-time female worker and one casual female worker, both of indigenous Australian descent, in the applicant’s Sobering Up Unit. Both applications have the support of the Commissioner for Equal Opportunity.
In determining an application under section 92, the Tribunal may (a) have regard (where relevant) to the desirability of certain discriminatory actions being permitted for the purpose of redressing the effect of past discrimination and (b) have regard to any other factors that the Tribunal considers relevant. In these applications, the Tribunal is satisfied that there are sound social and cultural reasons for the exemptions sought.
For these reasons, pursuant to section 92 of the Act, the Tribunal grants exemptions from the provisions of sections 30 and 52, in terms of the Order this day signed by me, so as to permit the employment by the applicant of persons of Aboriginal descent in those Units and to give preference to such workers, thereby ensuring, where possible, the employment of an equal number of male and female workers. Those exemptions are to remain in force for 3 years, that being the maximum period permitted under section 92(1)(c). The precise terms are those in the Order now made.

CaseChat Overview and Summary

The case of Salvation Army - Towards Independence Network Services v Commissioner for Equal Opportunity involves the Salvation Army - Towards Independence Network Services, an applicant seeking exemptions from specific provisions of the Equal Opportunity Act 1984. The applicant sought to employ individuals of Aboriginal descent in its Stabilisation Unit and Sobering Up Unit, with preferences for both male and female workers. The Commissioner for Equal Opportunity supported the applications. The matter was heard in the District Court Administrative and Disciplinary Division.

The legal issues central to this case were whether the Tribunal, in exercising its discretion under section 92 of the Act, could permit certain discriminatory actions, given the context of redressing the effects of past discrimination and considering other relevant factors. The Tribunal had to balance the need for equal employment opportunities with the social and cultural imperatives supporting the applicant's position. The key question was whether the exemptions sought by the applicant would be in the best interests of social justice and equity, particularly in the context of Aboriginal employment.

The Tribunal found that there were sound social and cultural reasons for granting the exemptions. It concluded that the exemptions would help redress the effects of past discrimination by promoting equal employment opportunities for Aboriginal individuals. The Tribunal emphasised the importance of considering the broader social context and the historical disadvantages faced by Aboriginal people in employment. It was satisfied that the exemptions would facilitate the employment of an equal number of male and female Aboriginal workers, thereby achieving the desired social equity. Accordingly, the Tribunal granted the exemptions for a period of three years, as permitted under section 92(1)(c) of the Act.

The final orders of the Tribunal granted exemptions from the provisions of sections 30 and 52 of the Equal Opportunity Act 1984. These exemptions allowed the applicant to employ persons of Aboriginal descent in the Stabilisation Unit and the Sobering Up Unit, with a preference for both male and female workers. The exemptions were set to remain in force for a maximum period of three years, ensuring that the applicant could continue to address past discrimination and promote equal employment opportunities for Aboriginal individuals.

Salvation Army - Commission of Equal Opportunity No. Dcaat-01-490

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established