Tanevski v Fluor Australia Pty Ltd

[2008] NSWADT 217

CITATION:	Tanevski v Fluor Australia Pty Ltd [2008] NSWADT 217
DIVISION:	Equal Opportunity Division
PARTIES:	APPLICANT Risto (Chris) Tanevski RESPONDENT Fluor Australia Pty Ltd
FILE NUMBER:	071096
HEARING DATES:	20 and 21 December 2007
SUBMISSIONS CLOSED:	25 February 2008
DATE OF DECISION:	7 August 2008
BEFORE:	Hennessy N - Magistrate (Deputy President); Lowe A - Non Judicial Member; Schembri A - Non Judicial Member
CATCHWORDS:	Age Discrimination - In work - Race Discrimination - In work
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Occupational Health and Safety Act 2000Administrative Decisions Tribunal Act 1997
CASES CITED:	Purvis v New South Wales (2003) 217 CLR 92Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] 2 All ER 26 Dutt v Central Coast Area Health Service [2002] NSWADT 133Amery & Ors v State Of New South Wales (Director-General NSW Department of Education and Training) [2004] NSWCA 404New South Wales v Amery (2006) 80 ALJR 753Australian Iron and Steel Pty Ltd v Banovic (1989) 168 CLR 165Waters v Public Transport Corporation [1991] HCA 49; (1991) 173 CLR 349Kumaran v Rail Infrastructure Corporation (EOD) [2005] NSWADTAP 41IW v City of Perth (1997) 146 ALR 696;Commonwealth v HREOC (1998) 152 ALR 182.Commonwealth Bank of Australia v Human Rights and Equal Opportunity Commission (1997) 80 FCR 78Perera v Civil Service Commission [1982] IRLR 147Secretary, Department of Foreign Affairs and Trade v Styles (1989) 23 FCR 251
REPRESENTATION:	Z Angus, solicitor B Dudley, solicitor
ORDERS:	1. The complaint of age discrimination is dismissed 2. The complaint of direct race discrimination is dismissed 3. The complaint of indirect race discrimination is substantiated 4. Matter to be listed for a Directions Hearing in relation to remedies.

Introduction

1 Mr Risto (Chris) Tanevski migrated to Australia from Macedonia in 1967 when he was 20 years old. At that time he spoke no English. He has worked in rail maintenance for 40 years, including 31 years as a supervisor. In 2001, Fluor Australia Pty Ltd (Fluor) took over the rail maintenance contract at the Port Kembla steel works where Mr Tanevski had been working. Fluor employed Mr Tanevski to supervise about 20 people who were maintaining rail tracks used by Bluescope Steel Ltd at the site. Fluor says that because of concerns about his ability to read and write adequately to perform his duties and the resulting safety implications, they removed Mr Tanevski from his supervisory position at the end of 2006. He was 60 years old at the time. Mr Tanevski was allocated to a project assisting another supervisor and given a smaller vehicle. A few days later Mr Tanevski became stressed and anxious and could not continue working. He said that he was sick and left work to see a doctor. He has not returned to work since that time.

2 Mr Tanevski says that he has always been regarded as a good worker; he has a good safety record and has never been counselled about a safety issue connected with his English language ability. He denies that his limited ability to read and write in English means that he cannot fulfil his job requirements. He complained that by removing him from his supervisory role, placing him in a short-term position and downgrading his vehicle, Fluor had discriminated against him on the ground of his race in breach of the Anti-Discrimination Act 1977 (AD Act). In addition, he says that by failing to provide him with English language training Fluor discriminated against him on the ground of his age. Fluor denies that it has breached the AD Act and says that even if it has, it was required to do so to comply with its obligations under the Occupational Health and Safety Act 2000: See AD Act, s 54.

3 In final written submissions Mr Tanevski also alleged that Fluor had discriminated against him in relation to the manner in which it investigated his inability to complete certain paperwork; by not providing him with proper assistance; by not directing him to perform the required tasks; by failing to conduct a proper review of this position; and by failing to provide him with necessary training. As none of these allegations were contained in the Points of Claim and Mr Tanevski did not apply for his complaint to be amended, we have not treated these allegations as discrete acts of discrimination.

Credibility issues

4 We begin by making some observations about the credibility of the evidence given by the witnesses. On numerous occasions during examination in chief, Mr Tanevski gave what he regarded as the “right” answer without listening carefully to his lawyer’s question. Conversely, when he was being cross-examined he was often hesitant when answering questions and, on many occasions, did not provide a direct answer. We appreciate that Mr Tanevski was nervous when giving evidence. We also appreciate that being removed from his position was extremely traumatic and his recall of the events around that time is likely to have been affected by his heightened emotional state. He admitted on two occasions that he had a bad memory. The evidence given by Fluor’s witnesses was more measured and consistent. They had the advantage of being able to recall meetings and other discussions reasonably clearly because in many cases they had made contemporaneous notes or were able to point to documentary evidence in support of their recollections. Mr Tanevski did not have that advantage. Our factual findings have been made with these observations in mind.

Competence prior to commencing with Fluor

5 Two of Mr Tanevski’s former superintendents, Mr John Haug and Mr Rodney Aleckson, gave evidence in support of Mr Tanevski. Mr Haug, who was Mr Tanevski’s superintendent from 1982 until 1998, said that he was one of his most valued supervisors because he was safety conscious. He also said that because Mr Tanevski was from an ethnic background, he would often go over a major job the day before to ensure he had all safety aspects covered. Mr Haug said that Mr Tanevski would provide a written report in relation to a major job the following day and that while it often contained spelling and grammatical errors, anyone who understood rail tracks and maintenance would regard the reports as thorough and correct. In his oral evidence Mr Haug conceded that he could recall on rare occasions that Mr Tanevski had problems preparing a report, but when he did so he, or another supervisor, would assist him. Mr Haug has not worked with Mr Tanevski for over 10 years and agreed that he is not familiar with Fluor’s safety procedures.

6 Mr Aleckson was a Planning Supervisor when Mr Tanevski was working as a platelayer and then a supervisor. During the 12 years he worked with Mr Tanevski, he said Mr Tanevski never had a problem understanding instructions and explanations. According to Mr Aleckson, Mr Tanevski was highly respected by his peers and subordinates and always complied with safety policies and procedures. Mr Aleckson also considered Mr Tanevski to be an “absolute genius” on railway lines and regarded him as capable of performing his duties as a maintenance supervisor. He noted that Mr Tanevski’s team had won an annual award for platelaying. The criteria were that a major platelaying job had to be completed as planned, on time, on budget and with no injuries or incidents. Like Mr Haug, Mr Aleckson was not aware of Fluor’s safety policies or procedures.

Evidence about Mr Tanevski’s performance at Fluor

7 Twigg’s concerns about Tanevski. At the end of 2005, Mr Twigg was appointed as the Track Superintendent and from that time was Mr Tanevski’s immediate supervisor. He says that he became aware shortly after he met Mr Tanevski that he had problems reading and writing in English. Mr Twigg met with Mr Tanevski and the leading hands in May 2006 as a result of concerns by the leading hands that Mr Tanevski was not giving them enough support and was not doing enough forward planning. Mr Twigg recalls that Mr Tanevski agreed to provide the leading hands with more support. Mr Tanevski does not recall this meeting but we are satisfied that it occurred given Mr Twigg’s contemporaneous diary note.

8 Informal assistance. According to Mr Wroniak, the site manager and Mr Twigg’s supervisor, Mr Tanevski got on well with most people and many employees were prepared to help him reading bills or letters that he brought into work. He said, for example, that Mr Tanevski’s previous superintendent, Mr Graham Dunnit, helped him complete paper work. Mr Wroniak said that he noticed that as new employees were hired, fewer people knew Mr Tanevski as well as previously and he was not able to rely as heavily on others as he had in the past.

9 Broken rail incident. Mr Twigg said that Mr Tanevski failed to comply with written instructions in relation to the repair of a broken rail. The written instruction to Mr Tanevski was to “change full length of rail”. Instead, Mr Twigg says that Mr Tanevski gave one of the leading hands incorrect instructions and a basic drawing and directed him to carry out the repair using fishplates. Mr Tanevski said that the reason he instructed his gang to use fishplates was to fix the break temporarily until they had an opportunity to fix it permanently. Mr Twigg said that Mr Tanevski did not complete any work orders or other reports for this repair work. After waiting for two weeks for Mr Tanevski to complete a statement about the repair work, Mr Twigg drafted it himself and asked Mr Tanevski to sign it. The report said:

On 28/7/06 I Chris Tanevski, was notified by John Pasfield, there is a broken rail at WH5 on the way branch. I sent the fly gang straight away to repair the break with fishplates, because it was on a bridge in a difficult area and there were holes pre drilled for the plates. I believe this was the best decision at the time.
I have been waiting for this statement from Chris Tanevski for 2 weeks, unfortunately Chris was unable to write this statement due to poor reading and writing skills.

Leigh Twigg

10 Mr Twigg assumed that Mr Tanevski could not read the instruction as to how to repair the broken rail. Mr Wroniak gave evidence that Mr Tanevski would not have had a problem reading work orders, as they were usually straightforward. Mr Tanevski says that he did not receive written instructions to fix the rail. He says he was given a verbal instruction and that he organised his workers to do a temporary repair with fishplates. He then had to organise with the Planner to find a time to permanently fix the track.

11 Given Mr Tanevski’s evidence that he did not receive the written instructions and Mr Wroniak’s evidence that Mr Tanevski would not have had a problem reading work orders, we are not persuaded that Mr Twigg’s assumption that Mr Tanevski could not read the instruction was correct. Whether or not Mr Tanevski read the instruction or acted on a verbal instruction, he was confident that he knew how to repair a broken rail and there had been no change in procedures.

12 In relation to the completion of a report after this incident Mr Tanevski’s lawyer asked him whether Mr Twigg had ever told him to file a report when he had not provided one. Mr Tanevski answered “No” to that question. In our view, this is an example of Mr Tanevski agreeing too readily with a proposition put to him by his lawyer. We are satisfied on the basis of the note on the letter and Mr Twigg’s evidence that Mr Tanevski was not able to write an incident report about this matter and that after several requests, Mr Twigg wrote the report for him.

13 Marshall report. In 2006 Fluor commissioned a report, known as the Marshall Report, into safety issues at the Port Kembla site. Mr Marshall identified “management of low English literacy standards of personnel” as the most critical area for improvement. In addition, the report noted that those with English literacy problems would not be able to read and understand the requirements of the procedures while they were in their current form. Mr Coates, Fluor’s Director of Operations and Maintenance, asked the Site Manager, Mr Wroniak, to develop a plan to address the issues raised in the Marshall report. A plan was developed which involved Mr Twigg and Mr Tanevski meeting with groups of employees to address the issues in the Marshall report. Mr Twigg commenced the meetings in October 2006.

14 Twigg’s letter. At about the same time Mr Twigg documented some concerns he had with Mr Tanevski’s level of English literacy in an undated letter to his supervisor, Mr Henry Wroniak. The EBA guidelines refer to the Enterprise Bargaining Agreement:

Henry,

I wish to draw your attention my concerns about Chris Tanevski not fulfilling his basic duties in his role as Track Supervisor at Bluescopesteel.

Chris's performance when executing his key tasks is mediocre with a majority of the tasks not carried out to a satisfactory level.

In addition, Chris is not completing many of the routine tasks to the standard that is required from a supervisor according to the EBA guidelines.

Although Chris has spent considerable time working on track and relies on this experience, he still has limited track knowledge.

In particular I am concerned that Chris does not carry out the following requirements of his position-

complete weekly time sheets

order track components

discipline gang members to EBA guidelines

record written instructions

adapt positively to changes, i.e. new implementations standards guidelines etc

As well, Chris is presenting the company with potentially serious safety issues. He finds it hard to interpret written instructions essential for instance from reading MSDS and track reports and cannot complete written tasks such as Dig Permits and Job Safety Analysis Reports.

Chris's inability to perform to the requirements of track supervisor creates the disadvantage of

extra workload on other supervisors and the superintendent

procedures not being followed correctly

a lack of trust in him carrying out his duties

potential safety and procedural breaches

I would like to discuss with you the most effective options we have in addressing the situation of Chris Tanevski not meeting the requirements of his role as Track Supervisor.

Leigh Twigg

15 Examples of Mr Tanevski’s inability to perform his duties. In his statement, Mr Twigg said that the three supervisors, including Mr Tanevski, were responsible for completing certain reports in order to comply with health and safety obligations. These reports included purchase requisition reports, incident reports and job observation reports, also known as Safe Act Observations (SAO) Forms. In his view the reports were important to the proper functioning of Fluor’s Health, Safety and Environment (HSE) Management System. Mr Twigg said that Mr Tanevski did not properly complete and provide all of these reports. He said that the other two supervisors, Mr Jacobsen and Mr Truter, were able to complete the reports. Neither Mr Jacobsen nor Mr Truter is from a non-English speaking background.

16 Purchase requisition reports. In relation to the purchase requisition reports, Mr Twigg said that he or the person who was the Planner filled them out for Mr Tanevski. Mr Tanevski said that he filled out purchase requisition reports until Mr Twigg told him it was the Planner’s job, not his, to order the equipment. We find that Mr Twigg came to the view that Mr Tanevski was not able to complete the purchase requisition reports and rather than insisting that he do so, he took on that role himself or asked the Planner to complete the reports. Mr Tanevski then assumed that it was not his responsibility to fill out purchase requisition reports.

17 Incident reports. Whenever a safety incident occurred, the supervisor was required to write a report and obtain statements from those involved. According to Mr Twigg, Mr Tanevski approached him regularly asking for help to complete reports because he was not able to write full reports in English. Mr Twigg provided examples of seven statements he had written relating to three incidents. He says that he wrote those statements because Mr Tanevski was unable to do so. Mr Twigg contrasted Mr Tanevski’s failure to complete written reports and statements with examples of reports completed by the other two supervisors.

18 According to Mr Tanevski, if Mr Twigg asked him for a report, he got a report, but he never asked. Mr Tanevski’s former superintendent, Mr Haug said that Mr Tanevski provided written reports and only needed help on rare occasions. That evidence is inconsistent with the evidence of his current superintendent, Mr Twigg. Despite Mr Haug’s evidence, we are satisfied that Mr Twigg asked Mr Tanevski for reports but they were not provided because he found it difficult to write basic reports or statements in English. That conclusion is supported by the fact that Mr Tanevski knew that his ability to write reports was in issue in these proceedings but he did not tender examples of reports or statements that he had prepared. In those circumstances, and given that Mr Twigg provided contemporaneous documentary evidence that supported his version of events, we find that Mr Tanevski was asked to provide reports but was unable to write sufficiently well in English to complete basic handwritten reports or statements that were required of supervisors.

19 Reviewing Job Orders – Before a job could be performed, a job order had to be created by the leading hands. It was the supervisor’s job to review these orders, but as Mr Tanevski was not doing so, Mr Twigg said he was reviewing the orders himself. We have found that Mr Tanevski’s lack of support for leading hands was discussed with Mr Twigg in a meeting in May 2006. We find that while the leading hands were responsible for creating the orders, Mr Tanevski was responsible for reviewing them but was not doing so.

20 Safety concerns. Mr Coates’ evidence was that track maintenance is a potentially dangerous area and that risks are minimised through a system of daily reporting and incident management. The procedures for reporting incidents and near misses is set out in the Fluor Bluescope Steel Health Safety and Environmental Management Plan (HSE Plan). Mr Coates listed numerous safety procedures which, in his view, required English literacy for compliance. He also noted that the Marshall Report said that the lack of English literacy is critical when new safety procedures and work methods are introduced. The report identified the following areas that were directly affected by English literacy problems:

(a) several documents that personnel were required to complete eg Rail Permit Isolations, Daily Job Start Cards, Work Orders etc required skills in English that many in the workforce did not have;

(b) many Work Orders were filled out by track personnel by copying the initial job description into the area provided to write in the details of completion;

(c) there was a lack of understanding of grammar and spelling evident in the fact the errors were duplicated during the copying process in the completion section; and

(d) the drafting of incident reports failed to take into account the underlying causes related to the incidents, and instead focused on what happened.

21 Safe Act Observation Forms (SAO Forms). Apart from his failure to complete written reports, Mr Twigg highlighted Mr Tanevski’s inaccurate completion of job observation reports (or Safe Act Observation Forms) and attributed that failure to his low level of English literacy. Mr Wroniak produced a selection of Safe Act Observation forms which Mr Tanevski had completed in relation to various tasks. The form contained spaces for describing the job, recording the location and the name of the person completing the form and then a checklist in relation to certain safety issues. One item on the checklist was “PPE (personal protective equipment) in compliance.” Mr Tanevski routinely ticked the “No” box in relation to this item, without any further explanation, when in fact the necessary protective equipment had been used. In addition, he sometimes ticked “Yes” in answer to the question about whether there were specific issues that needed to be addressed, but did not provide any details of what the issues were. In Mr Wroniak’s view Mr Tanevski did that either because he did not understand the question or he was not able to give a written response.

22 When shown the SAO forms Mr Tanevski initially said that he had forgotten his glasses so he could not read them. After we enlarged the forms on the photocopier, Mr Tanevski was still unable to read them. This response and the difficulty he had following the questions about the forms satisfies us that he is not easily able to read the words on these forms. An overview of the SAO forms completed by Mr Tanevski discloses that while Mr Tanevski ticked the “No” box consistently during July and August 2006, sometime in September 2006 he began ticking the “Yes” box. Mr Twigg agreed that the change was probably attributable to him telling Mr Tanevski that he was ticking the wrong box. Mr Twigg also agreed that once Mr Tanevski had been told which box to tick, there was no problem with the completion of the forms. Mr Tanevski denied that Mr Twigg had ever told him that he was filling out the forms incorrectly. Again, we prefer Mr Twigg’s evidence on this point because it was consistent with the documentary evidence.

23 Summary of findings about performance. Mr Tanevski was aware in May 2006 that his leading hands were dissatisfied with the level of support they were receiving and the lack of forward planning. Mr Tanevski agreed to provide the leading hands with more support. In relation to Mr Tanevski’s ability to read English, he has no problem reading basic English such as work orders, but he was not reviewing the job orders prepared by the leading hands. In relation to Mr Tanevski’s ability to write, he could fill in basic forms and knew which box to tick once he had been told, but he could not write incident reports or statements in English and he could not fill in purchase requisition reports. We refer to these findings as Mr Tanevski’s literacy level.

Training provided by Fluor

24 Training on HSE policy. When Fluor took over the rail maintenance contract at the Port Kembla Steel Works, it embarked on a “Behavioural Based Safety” programme that emphasised safety observation. In July 2006 Fluor revised and updated its health safety and environmental (HSE) management plan. According to Mr Coates, the decision to remove Mr Tanevski from his job was on the basis of his inability to comply with the HSE system. Mr Wroniak accepted that it was his job to ensure that employees were trained in the management system and understood it. HSE managers, including Mr Ovedjans, were responsible for providing proper training and instructions to employees so that they could comprehend the requirements of the HSE policy. It was asserted that neither the director of HSE nor any member of the HSE management team provided Mr Tanevski with any training or assistance. It was put to Mr Wroniak that Mr Tanevski had never received any training in relation to the implementation of the revised HSE system. Mr Tanevski’s training schedule discloses that he attended three training courses after the implementation of the HSE policy, none of which related to the HSE system.

25 Mr Wroniak said that despite the fact that Mr Tanevski’s training report does not record that he undertook any training in relation to the revised HSE system, his recollection was that Mr Ovedjans provided the supervisors with some form of revision training. According to Mr Wroniak, Mr Ovedjans conducted numerous sessions with the supervisors on the management plan so that they could introduce the system to the other employees who were under their supervision. Mr Tanevski claims to have not attended any training session about the new policy and procedures introduced in July 2006. He also said that he did not receive any training in relation to the new forms although he recalls Mr Ovedjan discussing the new form changes for a brief period during a meeting. Apart from discussion of the new forms in a meeting, we are satisfied that Mr Tanevski did not receive any specific training on the revised HSE Plan. Mr Tanevski did not recall any such training, none was documented and Mr Wroniak did not have a sufficiently clear recollection of the training occurring to satisfy us that it took place.

26 Training on other issues. Mr Twigg said that during the time Mr Tanevski was working, BlueScope was Fluor’s main training provider. They provided training on topics such as completing the forms necessary to do rail isolations. While Mr Tanevski had successfully completed various courses, Mr Twigg said that the problem with the training courses provided by BlueScope was that employees with poor reading and writing skills were able to satisfactorily complete the courses without filling in any forms. Their skills were not adequately assessed in the training sessions, as those with poor literary abilities often received assistance from work colleagues. As a result, Mr Twigg admitted that the training courses were not properly conducted and that prompted Fluor to engage their own private trainer a few months before the hearing.

Summary of findings on training

27 Fluor did not provide Mr Tanevski with specific training on the revised HSE Plan, apart from a discussion about the new forms in a meeting. In relation to other training, the literacy of employees was not adequately assessed in training sessions and those with poor literacy skills could successfully complete the training courses.

Decision to remove Mr Tanevski from his position

28 10 November meeting. On 10 November 2006 Mr Twigg says he had a conversation with Mr Tanevski about his limited ability to read and write in English. Mr Tanevski denies that he had any such conversation. For the reasons we have previously given about the credibility of Mr Tanevski’s evidence and because Mr Twigg produced a contemporaneous diary note that a conversation had occurred, we prefer Mr Twigg’s evidence on this point.

29 14 November meeting. On 14 November 2006, Mr Twigg’s supervisor, Mr Wroniak, decided to move Mr Tanevski out of his supervisory role to work on a 6 week project assisting another supervisor. Fluor said that the reason for removing Mr Tanevski was that he was unable to perform all the tasks in his position description because of his limited ability to read and write English. In particular, Fluor said it was concerned about risks to the health and safety of employees as a result of Mr Tanevski’s relatively low level of literacy.

30 15 November meeting. On 15 November 2006 Mr Tanevski met with Mr Twigg and Mr Wroniak. At that meeting Mr Wroniak told Mr Tanevski that he had some concerns with his written English skills. He started to go through Mr Tanevski’s position description. One task in the position description was to implement Fluor’s safety program. Mr Wroniak told Mr Tanevski that Fluor could not allow him to continue to perform his role because of his low level of English literacy. There was no independent assessment of Mr Tanevski’s literacy or any comprehensive review of his ability to comply with the duties in his position description.

31 16 November meeting. Mr Coates met with Mr Tanevski, Mr Twigg and Mr Wroniak on 16 November 2006. Mr Coates says he told Mr Tanevski at that meeting that he was not able to read and interpret written instructions and work procedures sufficiently to accurately communicate them to his team. He says Mr Tanevski agreed that he could not fulfil the requirements of his position description but that it had not been a problem in the past. Mr Coates said that Mr Tanevski agreed to take up the 6-week project position and that he asked about English courses. Mr Coates’ evidence was that there was no English language training available at the time but that John Ovedjans, the safety officer, would be contacting schools in the Wollongong and Port Kembla areas to find out whether English literature and comprehension classes were available. Furthermore, Mr Tanevski had told them he was going to retire in late 2007 and that it was too late for him to do those courses. Mr Tanevski denies making that comment. We are satisfied that Mr Tanevski did say that he was going to retire in either September 2007 or at the end of 2007. Mr Coates, Mr Twigg and Mr Wroniak all gave evidence that he told them he was going to retire at one or other of those times.

Summary of findings on decision to remove Mr Tanevski

32 The Marshall Report into safety issues had identified “management of low English literacy standards of personnel” as the most critical area for improvement. This, as well as certain incidents in the workplace, led Mr Twigg to focus on Mr Tanevski’s low level of English literacy and to point out various writing and reading tasks that he was unable to perform. We have summarised our findings in relation to Mr Tanevski’s level of literacy at [23] above. While Mr Tanevski had previously been able to overcome these deficiencies by relying on others, Mr Twigg and Mr Wroniak noticed that there were fewer people available to perform this role and Mr Twigg, in particular, was not prepared to continue to do so. Fluor saw Mr Tanevski’s low level of written English skills as being a potential risk to safety in the workplace. The immediate trigger for removing Mr Tanevski from his supervisory role was Fluor’s conclusion that he was unable to comply with the new HSE system and the consequent concerns about safety. Mr Tanevski accepted that he was removed from his supervisory job because of Fluor’s view that he was unable to perform his duties as a supervisor because of his English literacy problems and that that represented a safety issue. (See Mr Tanevski’s undated written submissions at para 3 and transcript 21/12/07 at p 41, line 30.)

Comment about age

33 Evidence. The factual basis for the complaint of age discrimination is a comment that Mr Wroniak allegedly made to Mr Tanevski at this meeting. Mr Tanevski’s version is that Mr Wroniak said:

It would take too long for you to improve your English skills and you are unable to understand procedures in the workplace. You need to do training but it will take too long and you are too old.

34 Mr Wroniak’s version is that he said words to the effect of:

We have some concerns with your written English skills. It’s going to take some time to get your skills up to the level that’s needed under the new safety program. We need you to undertake an English language training course. It is going to be quite difficult – it’s a long-term plan.

35 Mr Wroniak said that he told Mr Tanevski that because of their concerns about Mr Tanevski’s ability to implement the HSE plan they had decided to move him immediately into the project role. In cross-examination, Mr Wroniak elaborated on his thinking when discussing the issue with Mr Tanevski:

Q. . . . you actually thought that Mr Tanevski, at 61 in his senior years of his employment was, in fact, too old and it would take too long for him to tighten up his English to the level that you required. You formed that view, didn’t you?

A. I formed the view that it (English language training) wasn’t something that could be learnt in a couple of weeks say and we had a task that needed doing also, which was part of our work activity and that we had time to determine whether he needed or not needed whether he - to establish some training that he might want to avail himself of. Because he indicated that to me and to Leigh (Twigg) that he wasn’t really interested in doing some significant training that he had already done some training. He didn’t say that he wouldn’t do it either. (Words in brackets added.)

36 Findings. There is little difference between Mr Tanevski’s and Mr Wroniak’s version of the conversation about English language training. Both agree that Mr Wroniak mentioned that doing English language training would take a long time, or that it was a “long term proposition”. Both agree that Mr Wroniak indicated that Mr Tanevski needed to do English language training and that Mr Tanevski did not refuse to do that training. We are not satisfied that Mr Wroniak said that Mr Tanevski was too old to do English language training, even though that may have been how Mr Tanevski understood the discussion. An assessment of the evidence satisfies us that English language training was mentioned but that Mr Wroniak did not consider it to be a short-term answer to the perceived problem. Because there was a job that Mr Tanevski was able to move into straight away and because Mr Tanevski did not specifically request that he be provided with English language training at that time, the issue was left unresolved.

Consequences of removal

37 While the project role was initially for 6 weeks, we accept the evidence of Fluor’s witnesses that they intended to keep Mr Tanevski employed. In particular, Mr Twigg’s evidence was that Mr Tanevski was a long-term employee and they were not going to terminate his employment after the project finished. We find that the change to the project position did not involve any change to Mr Tanevski’s remuneration, but it did mean a change in the type of vehicle he was entitled to drive. At the 16 November meeting, Mr Twigg told Mr Tanevski to pick up another vehicle from the hire company because another supervisor would need his old vehicle. Mr Tanevski picked up the new vehicle which was a two-seater utility rather than the newer four-seater utility that he had been driving. He also said that his access to the worksite was significantly reduced at that time. Fluor says that Mr Tanevski’s access to the site was not withdrawn, rather his vehicle and accompanying entry permit were changed to accommodate the requirements of his new position. Fluor said that Mr Tanevski was not personally prevented from entering the site, but he could not drive into the site with his new vehicle because he did not have the necessary permit. We are satisfied that the consequences of being removed from his position were that he was given a lower status job and a smaller vehicle, but his remuneration and other entitlements were not affected.

Age discrimination

38 The complaint of age discrimination relates to the alleged denial of the opportunity to do English language training. Mr Tanevski alleges that Fluor has breached s 49ZYB(2)(b) which states that:

It is unlawful for an employer to discriminate against an employee on the ground of age:

(b) by denying or limiting access to opportunities for promotion, transfer or training, or to any other benefits associated with employment . . .

39 We accept Mr Coates’ evidence that no English language training had been organised for Fluor employees at the time the decision was made to remove Mr Tanevski from his position. Fluor intended to make inquiries about the availability of such training but had not done so. As Fluor was not offering English language training to any employees at that time, its failure to organise training for Mr Tanevski was not a denial of an opportunity for training. Even if Fluor did deny or limit Mr Tanevski’s opportunity for training, it did not do so because of his age. Rather the reasons were that it was their perception that training was a long-term proposition, there was a short-term position available and Mr Tanevski said he was going to retire within the following 12 to 15 months. Furthermore, Fluor had no training organised at the time. These findings mean that there is no factual basis to support Mr Tanevski’s complaint that a reason for not offering him English language training was his age. That complaint is dismissed.

Direct race discrimination

40 Introduction. Mr Tanevski complained that his job description had been altered, his rank as supervisor had been removed and his vehicle had been downgraded. We refer to these events as “the treatment”. According to Mr Tanevski this treatment constituted unlawful discrimination on the ground of his race. Race is defined to include “colour, nationality, descent and ethnic, ethno-religious or national origin”: AD Act, s 4. Mr Tanevski is from Macedonia and lived there for the first 20 years of his life. The Republic of Macedonia is a nation in Europe where the official language is Macedonian. We find that Mr Tanevski’s national origin is Macedonian. He did not submit that a reason for the treatment was his Macedonian national origin. Rather, Mr Tanevski alleged that the race discrimination was either direct discrimination, on the ground of a characteristic generally appertaining to Macedonians, or indirect discrimination.

41 Legislative provisions. Section 8(2) provides that:

It is unlawful for an employer to discriminate against an employee on the ground of race:

(a) in the terms or conditions of employment which the employer affords the employee,

(b) by denying the employee access, or limiting the employee’s access, to opportunities for promotion, transfer or training, or to any other benefits associated with employment, or

(c) by dismissing the employee or subjecting the employee to any other detriment.

42 Direct discrimination is defined in s 7(1)

(1) A person (“the perpetrator") discriminates against another person (“the aggrieved person") on the ground of race if, on the ground of the aggrieved person’s race or the race of a relative or associate of the aggrieved person, the perpetrator:

(a) treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person of a different race or who has such a relative or associate of a different race, or

. . .

(2) For the purposes of subsection (1) (a) and (b), something is done on the ground of a person’s race if it is done on the ground of the person’s race, a characteristic that appertains generally to persons of that race or a characteristic that is generally imputed to persons of that race.

43 Elements of direct discrimination. To substantiate a complaint of direct discrimination on the ground of a characteristic appertaining generally to Macedonians (“the characteristics extension”) Mr Tanevski must establish that:

(i) the treatment amounted to a change to the terms or conditions of his employment or constituted a “detriment”: AD Act , s 8(2)(a) or (c);

(ii) Mr Tanevski has a characteristic that appertains generally to people of his race (Macedonian); AD Act, s 7(1)(a) and s 7(2);

(iii) Fluor did not treat or would not have treated a non-Macedonian employee who did not have that characteristic in the same way as it treated Mr Tanevski: AD Act, s 7(1)(a) and s 7(2) (“the differential treatment requirement”); and

(iv) one of the reasons for the treatment (whether or not it is the dominant or a substantial reason for doing so) was the characteristic: AD Act, s 7(2); (“the causation requirement”).

44 Change to terms or conditions or detriment. We are satisfied that the treatment constitutes a “detriment” within the meaning of that term in s 8(2)(c). Mr Tanevski had been working as a supervisor for 31 years, 5 of those years with Fluor. He had a responsible position supervising approximately 20 employees. Even though Fluor did not intend to reduce Mr Tanevski’s remuneration or terminate his employment after the completion of the 6-week project, the treatment constituted a significant downgrading of his status and amounted to a detriment. Having made that finding, there is no need to consider whether the treatment also amounted to a change in the terms and conditions of Mr Tanevski’s employment. However, for completeness we will consider that question.

45 Terms and conditions of employment. Mr Tanevski says that his terms and conditions of employment were changed because his job description was radically altered, his supervisory responsibilities were removed and his vehicle was downgraded. Fluor said that Mr Tanevski consented to being moved into a non-supervisory role and to his position description being changed. They said he was given the opportunity to object to the decision but did not put forward any arguments, either in writing or verbally, in support of remaining in his supervisory role. We agree with Mr Tanevski that Fluor changed the terms and conditions of his employment. It makes no difference whether or not Mr Tanevski expressly or impliedly agreed to those changes at the time.

46 Identification of the characteristic. Having found that the treatment falls within one or more of the paragraphs in s 8(2), the next step is to determine whether that treatment was on the ground of a characteristic appertaining generally to people of Mr Tanevski’s race. The so called “characteristics extension” was described in the following terms by McHugh and Kirby JJ (dissenting) in Purvis v New South Wales (2003) 217 CLR 92 at 134:

Provisions that extend the definition of discrimination to cover the characteristics of a person have the purpose of ensuring that anti-discrimination legislation is not evaded by using such characteristics as “proxies” for discriminating on the basic grounds covered by the legislation.

47 Mr Tanevski originally said in the Points of Claim that a characteristic that appertains generally to people from Macedonia is that they are less proficient in English than people not of that race. In final submissions the characteristic was identified as “being from a non-English speaking background and/or speaking English as a second language.” The characteristic must be precisely defined. Being “less proficient” in English than non-Macedonians is a relative term and is not sufficiently precise to constitute a “characteristic”. Being from a “non-English speaking background” or, more specifically, “speaking English as a second language”, is sufficiently precise to come within the definition of a characteristic and, in our view, is something that generally appertains to Macedonians. While many Macedonians born in Australia will not have this characteristic, it is common knowledge that the vast majority of Macedonians do not speak English as their first language.

48 Differential treatment. The differential treatment requirement involves comparing the way Fluor treated or would have treated an actual or hypothetical non-Macedonian employee in the same or similar circumstances. In cases involving the “characteristics extension”, the characteristic should be ignored when making the comparison: IW v City of Perth & Ors (1997) EOC 92-892, per Toohey J (Gummow J concurring; Monash University v Kapoor [1999] VSC 463 per Byrne J at [73]. That means that Mr Tanevski’s treatment is to be compared with the treatment that was or would have been afforded to a non-Macedonian who does not speak English as their second language. This proposition is not affected by the decision in Purvis v NSW (2003) 217 CLR 92 160-161 because the legislation under consideration in that case, the Disability Discrimination Act 1992 (Cth) does not have a characteristics extension. Mr Tanevski compared himself to the other non-Macedonian supervisors who spoke English as their first language and who were not removed from their positions. He said that that indicates that the characteristic was a reason for the treatment.

49 Same or similar circumstances. This analysis ignores the fact that the legislation provides that when making the comparison the circumstances must be the same or not materially different. In Purvis, Gummow, Hayne and Heydon JJ said at [224], that the circumstances are “all of the objective features which surround the actual or intended treatment” of the person. Their Honours went on to say that, [I]t would be artificial to exclude (and there is no basis in the text of the provision for excluding) from consideration some of these circumstances because they are identified as being connected with that person’s disability.” In this case, one of the objective circumstances is Mr Tanevski’s literacy level (see [23]. In accordance with the decision in Purvis, that is a circumstance that must be included when making the comparison even though it is connected with Mr Tanevski’s race.

50 Conclusion. If the other two supervisors, or a hypothetical non-Macedonian supervisor whose first language was English, had the same literacy level as Mr Tanevski, Fluor would have treated them in the same way that it treated Mr Tanevski. Consequently, the differential treatment requirement is not satisfied and the complaint of direct race discrimination fails. However, in case we are wrong, we deal below with the second strand of direct discrimination - causation.

51 Meaning of causation. The causation requirement is met as long as one of the reasons for the treatment (whether or not it is the dominant or substantial reason) is the characteristic: AD Act, s 4B. In Purvis v New South Wales (2003) 217 CLR 92 at 163 the majority of the High Court interpreted the causation requirement in the Disability Discrimination Act 1992 (Cth) as follows:

[w]hy was the aggrieved person treated as he or she was? If the aggrieved person was treated less favourably was it ‘because of’, ‘by reason of’, that person’s disability? Motive, purpose, effect may all bear on that question. But it would be a mistake to treat those words as substitutes for the statutory expression ‘because of’.
The AD Act uses the words "on the ground of", rather than "because of" but no different meaning is intended.

52 On the basis of all the evidence and our findings, the reason for removing Mr Tanevski from his position was Fluor’s view that Mr Tanevski’s literacy level posed a safety risk in the workplace. It follows that Mr Tanevski was not removed from his position because he spoke English as a second language. Many people who speak English as a second language would have a higher literacy level than Mr Tanevski. Consequently, Mr Tanevski’s complaint of direct race discrimination is dismissed.

Indirect race discrimination

53 Legislative provisions. Rather than focusing on the reason for the treatment, indirect race discrimination focuses on the effect on a person of particular practices or policies that disadvantage them. If those practices or policies are not reasonable, they will be unlawful. Indirect race discrimination is defined in s 7(1)(c) as follows:

(1) A person ("the perpetrator") discriminates against another person ("the aggrieved person") on the ground of race if, on the ground of the aggrieved person’s race or the race of a relative or associate of the aggrieved person, the perpetrator:

(c) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons not of that race, or who have such a relative or associate not of that race, comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply.

54 The phrase “on the ground of” in 7(1) does not mean that a complainant must prove that a reason for imposing the requirement was the person’s race: Amery & Ors v State Of New South Wales (Director-General NSW Department of Education and Training) [2004] NSWCA 404. Section s 7(1)(b) is now to be read as if the opening words of the section provide that: “A person (the perpetrator) discriminates against another person (the aggrieved person) on the ground of race if, … the perpetrator:”

55 Elements of indirect discrimination. The elements that Mr Tanevski needs to prove to substantiate a complaint of indirect race discrimination are as follows:

a) Fluor required him to comply with a requirement or condition;

b) he could not comply with the requirement or condition;

c) a substantially higher proportion of employees not of his race could comply with that requirement or condition; and

d) the requirement was not reasonable in all the circumstances.

Mr Tanevski bears the burden of proof in relation to all four elements.

56 Requirement or condition. The words requirement or condition “should be construed broadly so as to cover any form of qualification or prerequisite demanded by an employer of his employees”: Australian Iron and Steel Pty Ltd v Banovic (1989) 168 CLR 165 at 185 per Dawson J. A requirement may be inferred or implicit. It must be identified precisely and it must relate to the terms and conditions of employment: Waters v Public Transport Corporation [1991] HCA 49; (1991) 173 CLR 349 at 407 per McHugh J and at 360 per Mason & Gaudron JJ; New South Wales v Amery (2006) 80 ALJR 753 at [79].

57 Mr Tanevski variously described the requirement as:

a) a subjective requirement in relation to English skills;

b) a requirement to have sophisticated English, that is a level of English in excess of mere competence; and

c) a requirement to be from an English speaking background.

58 Findings. Contrary to Mr Tanevski’s submission, Fluor did not require Mr Tanevski to be from an English speaking background or to have a sophisticated level of English. While the level of his reading and writing ability was subjective in the sense that there was no evidence of any assessment of his ability, we have found that the treatment was because of Mr Tanevski’s literacy level and Fluor’s conclusion that this represented a safety risk. Fluor submitted that the requirement it imposed on Mr Tanevski was a requirement that he be able properly to perform all the duties of his role including the completion of reports and other documents in English and generally to be able to have “very good employee/customer relations communication skills.” In accordance with our findings as to the reasons for the way Mr Tanevski was treated, the requirement imposed on Mr Tanevski was that in order to retain his position as a supervisor he had to have a literacy level that enabled him to write incident reports and statements in English and fill in purchase requisition reports. We refer to this requirement as the “literacy requirement”.

59 Compliance with the requirement. Mr Tanevski is unable to comply with the requirement imposed on him.

60 Substantially higher proportion test. Section 7(1)(c) requires a comparison between the proportion of Macedonians and people “not of that race” who can comply with the requirement. Three issues arise:

a) to whom is the requirement directed? (identification of base group);

b) how should the base group be split to make the comparison? (identification of pools); and

c) whether the rate of compliance and the degree of disparity amount to a substantially higher proportion (rate and disparity of compliance).

61 Identification of base group. Generally the relevant group is all the people to whom the requirement or condition is applied, or is potentially applicable. In this case, there was no evidence as to whom the requirement was directed, but it is consistent with the evidence that it was directed, at least, to the three supervisors. It is obvious that three is too small a group from which to draw any valid conclusions about the impact of the requirement. In order to determine whether the requirement has a disparate impact on Macedonians, the base group needs to be broadened to include all employees of Fluor who aspired to be a supervisor, but who may or may not have been able to comply with the literacy requirement. We do not know how many people fall within this group.

62 Identification of pools. The next question is how this base group should be divided. If it is divided between Macedonians and non-Macedonians, then the non-Macedonian group will include people from a non-English speaking background. In her book, Indirect Discrimination in the Workplace, (Federation Press, 1992) at p 203-204, Rosemary Hunter discussed the difficulties with this formulation:

. . . indirect discrimination in employment occurs because many organisational criteria have been designed to suit the behaviour patterns of traditionally dominant groups in the workforce. Such criteria create disadvantages for outsiders who do not behave in the same way. Thus, as a matter of principle, the test for indirect discrimination should be whether a substantially higher proportion of (say) Anglo-Australians (the dominant group) than of Turks (the minority group) comply with a particular requirement or condition. The point begins to be lost if one is in fact required to decide whether a substantially higher proportion of non-Turks than of Turks comply. This is a particular problem when the group of “non-Turks” includes people of other national origins who may have just as much difficulty complying with the challenged requirement or condition, for similar reasons.

63 The general approach suggested by Rosemary Hunter was endorsed by the Appeal Panel in Kumaran v Rail Infrastructure Corporation (EOD) [2005] NSWADTAP 41. In that case the Tribunal decided that a substantially higher proportion of persons not of Mr Kumaran’s race (Sri Lankan) would have been able to comply with a particular requirement. The Appeal Panel noted that in coming to that view, “the Tribunal must have accepted that it was common knowledge that people from nationalities whose first language is English would have substantially less difficulty complying with the requirement than those of Sri-Lankan nationality whose first language is not English.” In our view, in accordance with the remedial or beneficial nature of the legislation, the indirect race discrimination provisions should be interpreted in this case so that the comparison is between Macedonians and people not of that race, namely the dominant group of Anglo-Australians: IW v City of Perth (1997) 146 ALR 696 at 702; Commonwealth v HREOC (1998) 152 ALR 182.

64 Rate and disparity of compliance. The question is whether a substantially higher proportion of Anglo-Australian employees of Fluor who are otherwise eligible for appointment as a supervisor, would be able to comply with the literacy requirement than comparable employees whose national origin is Macedonian. If the base group were merely the three supervisors it is clear that the degree of disparity would be 100%. The other supervisors are Anglo-Australians and they can both comply with the requirement, while the only Macedonian, Mr Tanevski, cannot comply. However, as we have said, a base group of three is too small to draw any valid conclusions about the impact of the requirement. Mr Tanevski did not provide any statistical evidence of compliance rates among the base group. That is not surprising given that it is notoriously difficult to obtain evidence of this kind.

65 Absence of statistical evidence. Fluor submitted that in the absence of statistical evidence the Tribunal should not find that the requirement has a disparate impact on Macedonians. In Commonwealth Bank of Australia v Human Rights and Equal Opportunity Commission (1997) 80 FCR 78 at 122 Sackville J said that “unless there is some compelling reason to the contrary, I think it desirable . . . to make precise findings as to the proportions of men and women complying or able to comply with the impugned requirement.” Where such statistical information exists or can be obtained without undue expense, it is no doubt desirable. But in this case, there is a compelling reason why precise findings cannot be made. Mr Tanevski cannot be expected to survey part of the Fluor workforce to determine their race and whether they can comply with the literacy requirement. The likely cost of doing so is out of proportion to the amount of compensation he would be likely to receive if his complaint is substantiated and he would be unlikely to be able to recoup his costs even his complaint was successful. We support the remarks of Justice Browne-Wilkinson, as he then was, in Perera v Civil Service Commission [1982] IRLR 147 at 151–2:

. . . it is most undesirable that, in all cases of indirect discrimination, elaborate statistical evidence should be required before the case can be found proved. The time and expense involved in preparing and proving statistical evidence can be enormous, as experience in the USA has demonstrated. It is not good policy to require such evidence to be put forward unless it is clear that there is an issue as to whether the requirements of [the legislation] are satisfied.

66 The Tribunal is not bound by the rules of evidence and, subject to the rules of procedural fairness, we may inform ourselves in such manner as we think fit: Administrative Decisions Tribunal Act 1997, s 73. In addition, we can take into account matters of common knowledge. We have no statistical evidence available but we are satisfied that Anglo-Australians generally speak English as their first language and have been educated in English. Apart from the very small proportion who have a disability or social disadvantage affecting their levels of literacy, the remainder of Anglo-Australians to whom the requirement is directed would be sufficiently literate to comply with the requirement. The rate of compliance for Macedonian employees would be substantially less. The vast majority of Macedonians who were not born in Australia do not have English as their first language. Of those, many, like Mr Tanevski, would not be able to comply with the literacy requirement. While those born in Australia are more likely to be able to meet the requirement, overall it can be said that a substantially higher proportion of Anglo-Australian employees of Fluor who are otherwise eligible for appointment as a supervisor, would be able to comply with the literacy requirement than comparable employees whose national origin is Macedonian.

67 Reasonableness. Reasonableness is a question of fact to be determined after weighing all the relevant factors. There is no provision in the AD Act setting out the factors we should take into account but the case law provides some guidance. Bowen CJ and Gummow J in Secretary, Department of Foreign Affairs and Trade v Styles: (1989) 23 FCR 251 at 263 said:

The test of reasonableness is less demanding than one of necessity, but more demanding than one of convenience ... The criterion is an objective one, which requires the court to weigh the nature and extent of the discriminatory effect, on the one hand, against the reason advanced in favour of the requirement or condition on the other. All the circumstances of the case must be taken into account.

68 In Commonwealth Bank of Australia v Human Rights and Equal Opportunity Commission (1997) 80 FCR 78 at 112 Sackville J confirmed (in the context of the Sex Discrimination Act 1984 (Cth)) that in assessing reasonableness:

The fact that a distinction has a 'logical and understandable basis' will not always be sufficient to ensure that a condition or requirement is objectively reasonable. The presence of a logical and understandable basis is a factor - perhaps a very important factor - in determining the reasonableness or otherwise of a particular condition or requirement. But it is still necessary to take account of both the nature and extent of the discriminatory effect of the condition or requirement and the reasons advanced in its favour. A decision may be logical and understandable by reference to the assumptions upon which it is based. But those assumptions may overlook or discount the discriminatory impact of the decision.

69 Observance of occupational health and safety requirements was specifically mentioned by Dawson and Toohey JJ in Waters v Public Transport Corporation (1991) 173 CLR 349, as a factor which may be relevant. In our view the relevant factors in this case are:

a) Mr Tanevski’s circumstances and the effect on him of the requirement;

b) whether there is a logical and understandable basis for the requirement, including observance of safety requirements;

c) the objectives that are achieved by the requirement and the cost and practicality of achieving the objective by other means.

70 Mr Tanevski’s circumstances and effect of requirement. Mr Tanevski was 60 years old at the time the requirement was imposed. He intended to retire in the next 12 to 15 months. He had worked in rail maintenance for 40 years, 5 of those years with Fluor. His literacy level had been accommodated by Fluor for the entire period. The effect of the requirement on Mr Tanevski was significant. His status was downgraded and he did not feel able to return to work. Mr Tanevski has not worked since the requirement was imposed.

71 Logical and understandable basis for the requirement. The requirement has a logical and understandable basis. It relates to Mr Tanevski’s job and it was prompted by concerns about safety. Mr Coates gave evidence that Fluor takes health and safety very seriously and referred to the 2006 HSE management plan. He said that employees are required to report incidents and near misses to their supervisors, and each supervisor must give the required paperwork to their superintendent. According to Mr Coates, English literacy is essential for compliance with the HSE Plan. If a supervisor has literacy problems employees can be exposed to undue risk of harm if certain procedures are not followed. The Marshall Report identified the ‘management of low English literacy standards of personnel’ as the most important area requiring improvement. Other key areas were an improvement in verbal and written communication. The report identified five areas that were directly affected by English literacy problems. Mr Coates said that if Mr Tanevski remained in his position he could put others at risk. That is because he did not have a sufficient level of English to read and interpret written instructions and work procedures and communicate the required outcome to his workgroup.

72 Despite these assertions, Mr Coates did not bring to our attention a single incident relating to safety involving Mr Tanevski that had been caused by his low level of literacy. Neither could Mr Wroniak recall any such incident. Previous superintendents, Mr Haug and Mr Aleckson, gave glowing reports about Mr Tanevski’s safety record. We acknowledge that Mr Tanevski could not perform all the tasks in his position description and that he needed help to complete statements and other reports. Nevertheless, he could read straightforward work orders and had been compensating for his low literacy levels by using his own judgement (broken rail incident) or asking other people to read material and write reports and statements for him. On the basis of all the evidence we are not satisfied that the literacy requirement needed to be imposed to meet Fluor’s safety objectives. There was a cost effective and practical alternative.

73 Objectives of requirement and cost and practicality of achieving the objectives by other means. We accept that Mr Tanevski was due to retire within 12 to 15 months. During that period, the safety objective could have been achieved initially by training Mr Tanevski in the HSE plan and in the completion of the new forms and by continuing to provide him with assistance to complete written statements and reports. Following those measures, the procedures could have been simplified as recommended in the Marshall Report. Had a longer term solution been necessary, Fluor could have assessed Mr Tanevski’s literacy against his job description and arranged for him to attend English language training.

74 Conclusion. In our view, imposing the requirement on Mr Tanevski was not reasonable having regard to the circumstances of the case. Mr Tanevski’s literacy level had been accommodated by Fluor for 5 years and he was planning to retire in the next 12-15 months. While the requirement had a logical and understandable basis, it had a significant impact on Mr Tanevski and there was a feasible, low cost alternative which did not involve any increased risk to safety. The alternative was to provide him with training on the new HSE system, instruct him on how to complete the necessary forms and assist him with the duties, such as writing statements and reports, which he was unable to perform. There was no indication that there had been any industrial issues in relation to other employees performing some of Mr Tanevski’s tasks. These arrangements would have enabled Mr Tanevski and others to continue working safely for the 12-15 months before he retired and allowed him to maintain his dignity as a Fluor employee.

Defence of statutory authority

75 Legislative provisions. Fluor submitted that if Mr Tanevski’s complaint was substantiated, then they had a defence because it was necessary for them to treat him in the way they did to comply with the health and safety obligations. Section 54 relevantly states that:

(1) Nothing in this Act renders unlawful anything done by a person if it was necessary for the person to do it in order to comply with a requirement of:

(a) any other Act, whether passed before or after this Act,

76 The onus of proving the exception lies on Fluor: AD Act, s 104. In order to make out this defence, it must have been necessary for Fluor to remove Mr Tanevski from his position in order to comply with s 8(1) of the Occupational Health and Safety Act 2000. That section provides that:

(1) An employer must ensure the health, safety and welfare at work of all the employees of the employer.

That duty extends (without limitation) to the following:

(a) ensuring that any premises controlled by the employer where the employees work (and the means of access to or exit from the premises) are safe and without risks to health,

(b) ensuring that any plant or substance provided for use by the employees at work is safe and without risks to health when properly used,

(c) ensuring that systems of work and the working environment of the employees are safe and without risks to health,

(d) providing such information, instruction, training and supervision as may be necessary to ensure the employees’ health and safety at work,

(e) providing adequate facilities for the welfare of the employees at work.

77 When considering the equivalent to s 54 in the Victorian legislation, McHugh in Waters v Public Transport Corporation (1991) 173 CLR 349 at 413 commented that the defence of statutory authority only arises when the requirements in the Act are “mandatory and specific”.

78 Conclusion. We have not accepted Mr Coates’ evidence that if Mr Tanevski remained in his position he could put himself and others at risk. Although we agree that, in general, a high level of literacy is likely to decrease risks to safety, it was not necessary to remove Mr Tanevski from his position in order to comply with s 8(1) of the Occupational Health and Safety Act 2000. Fluor had another practical, low cost option, namely training Mr Tanevski and accommodating his literacy level for approximately 12 to 15 months until he retired. Given that finding, the defence under s 54 has not been made out.

Orders

1. The complaint of age discrimination is dismissed.

2. The complaint of direct race discrimination is dismissed.

3. The complaint of indirect race discrimination is substantiated.

4. Matter to be listed for a Directions Hearing in relation to remedies.