Commission submissions: Mt Isa Mines

IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION

No: G743 of 1991

BETWEEN:

MOUNT ISA MINES LIMITED Applicant

AND:

LOU MARKS First Respondent

AND:

EDWARD EMMETT Second Respondent

AND:

JENNIFER GEORGE Third Respondent

AND:

CLIVE BROWN Fourth Respondent

AND:

JENNIFER MASSIE Fifth Respondent

AND:

DAVID NOLAN Sixth Respondent

AND:

ROBERT HART Seventh Respondent

AND:

KERRY KLINEBERG Eighth Respondent

AND:

BARRY NUTTER Ninth Respondent

AND:

NEIL BARTHOLOMAEUS Tenth Respondent

AND:

LESLIE WRIGHT Eleventh Respondent

AND:

DARCY McGAURR Twelfth Respondent

AND:

JOHN THOMPSON Thirteenth Respondent

AND:

SARAH BUTTERWORTH Fourteenth Respondent

AND:

BARRY DURHAM Fifteenth Respondent

AND:

JOHN WOODROW Sixteenth Respondent

AND:

BRENDAN PREISS Seventeenth Respondent

AND:

MARGARET CONLEY Eighteenth Respondent

Being members of the National Occupational Health and Safety Commission

AND:

NATIONAL OCCUPATIONAL HEALTH AND SAFETY COMMISSION

AFFIDAVIT

1. I am the Secretary of the Human Rights and Equal Opportunity Commission (hereinafter referred to as the Commission) and am duly authorised to make this affidavit.

2. The Commission is a statutory corporation established by Section 7 of the Human Rights and Equal Opportunity Commission Act 1986.

3. The Commission is charged inter alia with the administration of the Human Rights and Equal Opportunity Commission Act 1986 and the Sex Discrimination Act 1984.

4. The relief sought by the applicant relates to the interpretation and application of the Human Rights and Equal Opportunity Commission Act 1986 and the Sex Discrimination Act 1984.

5. Functions of the Commission are conferred by Sections 11(1) and 31 of the Human Rights and Equal Opportunity Commission Act 1986 and Section 48(1) of the Sex Discrimination Act 1984.

6. At the time of the enactment of the Sex Discrimination Act, Section 40 of the Act operated to exempt all State legislation restricting the employment of women in the lead industry from the application of the Act for a two year period until 1 August 1988. This exemption was subsequently extended by regulation to 1 August 1988 for those States which so requested, being all States except South Australia. The exemption was then extended to 31 July 1989 for New South Wales, Western Australia, Queensland and Tasmania. The exemption for New South Wales, Queensland and Tasmania was further extended by way of regulation to 31 July 1991. It has not been extended since.

7. Since its establishment the Commission has been continuously involved in issues relating to the employment of women in the lead industry. This involvement stems from two sources:

i) the consideration of exemption applications pursuant to Section 44 of the Sex Discrimination Act by companies operating in States in which no exemption applies in respect of the industrial legislation of that State; and

ii) liaison with the National Occupational Health and Safety Commission (herein referred to as "Worksafe") in the preparation of the lead standard.

8. In relation to the exemption of the lead processing industry from the provisions of the Sex Discrimination Act the involvement of the Commission has been as follows:

i) On 10 October 1987 Broken Hill Associated Smelters (hereinafter referred to as BHAS) made application to the Commission for an exemption from the provisions of the Sex Discrimination Act in relation to the employment of women processors, contract workers and apprentices in or about any process involving exposure to dust, mist, fumes or gases containing a lead material or compound in the BHAS plant at Port Pirie. On 26 May 1988 the Commission granted BHAS a conditional exemption from the provisions of Sections 14, 16 and 86 of the Sex Discrimination Act for a period of nine months. Annexed hereto and marked with the letter "A" is a copy of the Notice of Grant of Exemption which was published in the Commonwealth of Australia Gazette No. GN 22 on 22 June 1988.

This application followed a previous exemption application which had been made to the Equal Opportunity Tribunal of South Australia (hereinafter called the Tribunal) for a similar exemption from the provisions of the Equal Opportunity Act 1984 (S.A.) pursuant to Section 92 of that Act. That application was heard by the Tribunal on 25 August 1987. On 16 September 1990 the Tribunal granted an exemption to BHAS conditional upon BHAS reporting to the Tribunal no later than 1 March 1989 as to action taken by BHAS and progress made in relation to the employment of women at the Port Pirie plant.

ii) On 15 November 1988 BHAS made an application to the Administrative Appeals Tribunal for review of the nine month exemption. The Commission was a respondent to this application. On 17 February 1989 the Administrative Appeals Tribunal set aside the decision of the Commission and granted an exemption to BHAS until 16 September 1990 to coincide with the exemption that had been granted by the South Australian Equal Opportunity Tribunal. The Administrative Appeals Tribunal directed BHAS to submit to the Commission a copy of the report which it had submitted to the South Australian Equal Opportunity Tribunal together with any communication received by BHAS from that Tribunal which related to the exemption granted by that Tribunal. BHAS was also directed to file with the Commission a report detailing action taken in relation to the employment of women at the Port Pirie plant. Annexed hereto and marked with the letter "B" is a copy of the decision of the Administrative Appeals Tribunal.

iii) During 1988 a number of other companies involved in the lead industry, namely the applicant herein and Australian Refined Alloys Pty Ltd (Brooklyn, Victoria), Ferro Corporation (Aust) Pty Ltd (West Footscray, Victoria), Electrolytic Zinc Co of A/Asia Ltd (Risdon, Tasmania) and Pacific Dunlop Batteries (Australian Division of Pacific Dunlop Ltd Sandringham and Geelong, Victoria; Elizabeth South Australia) made application to the Commission for exemptions pursuant to section 44 of the Sex Discrimination Act. Annexed hereto and marked with the letter "C" is a copy of a Public Notice prepared by the Commission which was published in a number of Australian newspapers in February 1989. All applications were subsequently withdrawn pending finalisation of the Worksafe Guidelines on the Control and Safe Use of Lead at Work. Accordingly no exemption from the provisions of the Sex Discrimination Act has been or is currently applicable in respect of those companies.

(iv) On 11 September 1990 BHAS notified the Commission that it was seeking a further exemption pursuant to Section 44 from the application of the Sex Discrimination Act for a period of three years. The Commission called for submissions in a Public Notice which was published in The Australian newspaper and the Port Pirie News in September 1990. Annexed hereto and marked with the letter "D" is a copy of the Public Notice as prepared by the Commission. At the same time BHAS made a similar application for exemption from the provisions of the Equal Opportunity Act 1984 (S.A.) to the South Australian Tribunal.

(v) On 12 December 1990 the Tribunal and the Sex Discrimination Commissioner, on behalf of the Commission, conducted a joint hearing into the application. BHAS requested that, pending a final decision by the Commission, an interim exemption be granted. On 4 February 1991 the Commission agreed to grant an interim exemption until 31 May 1991 pending the finalisation of the report by the Sex Discrimination Commissioner to the Commission. Annexed hereto and marked with the letter "E" is a copy of the Notice of Grant of Exemption which was published in the Commonwealth of Australia Gazette GN 11 on 20 March 1991.

(vi) On 14 May 1991 the Sex Discrimination Commissioner presented her report to the Commission. On the same day the Commission resolved to grant to BHAS a conditional exemption from the operation of sections 14 and 16 of the Sex Discrimination Act to expire on 31 December 1992. Annexed hereto and marked with the letter "Fe is a copy of the Notice of Grant of Exemption which was published in the Commonwealth of Australia Gazette GN 22 on 12 June 1991.

10. In relation to the preparation of the lead standard the Commission has been involved as follows:

i) Since its establishment and the establishment of the National Occupational Health and Safety Commission, subsequently known as Worksafe, in 1986, at which time Worksafe was requested to develop an occupational national lead standard, the Commission has liaised continually with Worksafe in the development of the lead standard.

ii) In October 1986 the former Sex Discrimination Commissioner attended a conference on legislative restrictions and awards at which the exemptions applying to employers by virtue of Section 40 of the Sex Discrimination Act were discussed. The conference discussed the issue of restrictions on women within the lead industry. The Commission, the Australian Council of Trade Unions (ACTU), the Confederation of Australian Industry (CAI) and participating State governments supported the proposal that Worksafe should develop a national code of practice for work in lead processing.

iii) In November 1988 Worksafe held a national workshop on the safe use of lead which was attended by the Sex Discrimination Commissioner. At the conclusion of the Workshop it was agreed that a draft discussion paper and a Proposed National Standard and Code of Practice would be further developed taking into account the views expressed at the workshop and that a tripartite study group, which would include a representative of the Commission, would visit workplaces employing lead processes.

iv) On 16 and 17 March 1989 the Sex Discrimination Commissioner visited the Mount Isa mines of the applicant together with representatives from the ACTU, CAI, State Occupational Health Commissions, the Australian College of Occupational Medicine, State Equal Opportunity bodies and Worksafe.

v) In March 1990 the South Australian Equal Opportunity Commission convened a National Workshop on Women and Lead. The Sex Discrimination Commissioner presented a paper to that Workshop.

vi) In March 1990 Worksafe released 'Lead - A Public Discussion Paper" and called for public submissions in response to the document. The Sex Discrimination Commissioner prepared and forwarded a detailed submission in response.

vii) On 9 August 1990 Worksafe held a "Lead Forum" where discussion of the Worksafe document took place. The Sex Discrimination Commissioner addressed that forum.

viii) In July 1991 the Sex Discrimination Commissioner delivered a paper on the lead industry and foetal protection policies in the United States and Australia to the Women, Management and Industrial Relations Conference held at Macquarie University.

ix) On 14 November 1991 the Sex Discrimination Commissioner and I attended a meeting of the Worksafe Lead Task Force to discuss further the provisions in the proposed National Standard and Code dealing with the employment of women in the lead industry. At that meeting the Task Force reached substantial agreement on the provisions.

11. Annexed hereto and marked with the letter "G" is a copy of a booklet produced by the Commissioner which contains copies of the address by the Sex Discrimination Commissioner to the Lead Forum in August 1990 and the submission made by the Commission to Worksafe.

Chris Sidoti

SWORN by the deponent at SYDNEY on the 24th day of December, 1991

before me:

Kate Burns Solicitor

OUTLINE OF SUBMISSIONS FOR THE HUMAN RIGHTS AND EOUAL OPPORTUNITY COMMISSION

1 Structure of Sex Discrimination Act

a. Certain practices (principally indirect discrimination) are prohibited subject to an exception relating to reasonableness. See, e.g. paragraphs 5(2)(b), 6(2)(b), 7(1)(b), 7(2)(b) . In the case of paragraph 7(1)(b), an exception relating to reasonableness is imposed in relation to direct discrimination on the ground of pregnancy. These provisions raise an expressio unius in relation to the absence of such an exception in the case of direct discrimination in breach of sub-sections 5(1) or 6(1).

b. The mitigating factor in relation to such discrimination lies in the power of the HREOC to grant exemptions under section 44.

2. Relationship Between Sex Discrimination Act and Worksafe Legislation

a. There is no inconsistency between an act laying down specific prohibitions and rules of conduct in the sexual discrimination area and an act requiring the promulgation of occupational codes. See Butler v. A.-G. (1961) 106 CLR 268 at Ĕ Suatu v. Aust Postal Commission (1989) 86 ALR 532 at Ȣ South Australia v. Tanner (1988) 166 CLR 161.

b. The consistency lies in the fact that the National Occupational Health and Safety Commission ("Worksafe"), like any other governmental or non governmental body, is bound to obey the law. See Waters v. Public Transport Corporation, unreported High Court 3.12.91, per McHugh J. at 57. The law includes the Sex Discrimination Act. Where it lays down standards, those standards must not require breaches of any applicable law. To require such a breach would involve Worksafe in a breach of Section 5 of the Crimes Act, 1914 (C'th).

c. The HREOC does not have any monopoly of determining what is in breach of the Sex Discrimination Act any more than any governmental or non-governmental body has a monopoly of determining what is in breach of any act. Where a person is performing a statutory duty (or, for that matter any statutory or non-statutory duty or act), he or she has an obligation to determine whether what is being done involves a breach of the law. For that purpose it may be necessary to interpret a statute. Worksafe is doing no more than this.

3. The proposed national standard

a. Paragraph 12.1(d) of the Code and paragraph 14(1)(d) of the Standard both comply with the relevant law.

b. The affidavit of Mr Sidoti shows that exemptions have been promulgated by the HREOC in this area. Subject to those exemptions, any standard or code laid down by Worksafe must comply with the Sex Discrimination Act.

Dated 5 February 1992

David Bennett and Ruth McColl Counsel for the Human Rights and Equal Opportunity Commission

Last updated 21 May 2003.