Equal Opportunity Tribunal of New South Wales CITATION: Toki -V- Bhp Steel [1996] NSWEOT COMPLAINANT: Ms Anna Toki RESPONDENT: BHP Steel NUMBER: 43 of 1995 Mr D Bitel ( Judicial Member ) TRIBUNAL: Mrs J Strickland Ms L Nemeth De Bikal GROUNDS OF COMPLAINT: Sex discrimination in the area of employment DATES OF HEARING: 02/20/1996; 02/21/1996 DATE OF JUDGMENT: 02/21/1996 Complainant: Mr L Fonua LEGAL REPRESENTATIVES: Respondent: Mr D Lloyd JUDGMENT IN FAVOUR OF: In the matter of the complaint of Anna Toki v BHP, the Tribunal has considered the evidence and submissions and has reached a decision to dismiss the complaint and further to make no order as to costs. I will now read the reasons for that decision. The Tribunal believes this is a sad case because the Tribunal believes that the complainant, as in so many cases which come before this jurisdiction, may herself believe that there has been some discrimination which brings into provision the operations of the act. However, the complainant's belief is not sufficient because the complainant has the onus to convince the Tribunal that there has been discrimination. In his submission Mr Fonua, who was acting as agent for the complainant, made reference to the important principles of non-discrimination and affirmative action, and of course the Tribunal accepts and endorses those principles. Reference was made to Najdovska's case but unfortunately that case is really not directly relevant because it deals with a clear policy which has been found to be indirectly discriminatory. It deals with a policy dealing with retrenchment from employment and not recruitment, which is essentially what this case is about. So even though the employers may be common, we do not believe that that decision really assists the complainant in her case. The complaint is essentially one of sex discrimination and the complainant relies on s 24(1)(a)(b) and s 25(1). The latter section states that: "It is unlawful for an employer to discriminate against a person on the ground of sex in the arrangements the employer makes for the purpose of determining who should be offered employment, in determining who should be offered employment or in the terms in which the employer offers employment and discrimination exists, amongst others, if an employer requires an agreed to person to comply with a requirement or condition with which a substantially higher proportion of persons of the opposite sex amongst others comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case." That is 24(1)(b) and I do not need to read 24(1)(a) but Mr Fonua did refer specifically to that section. I have stressed the words "or are able to comply" because I think they are significant. The evidence is brief and really is not in dispute. The complainant in her letter to the Anti-Discrimination Board which appears at tab 1 notes that between September and December 1988 she made more than three job applications with BHP employment office. She then made an application on 28 March 1989 and that application was before the Tribunal. She received a response which is a standard form letter which was sent by BHP to her on 3 April 1989 and states: "We acknowledge receipt of your application for a labouring position and will contact you should vacancies arise, yours faithfully." She heard nothing further and on 18 April 1990 she made a further application. On 9 November 1992 she made a complaint to the Anti-Discrimination Board and on 23 May 1995 the complaint was referred to this Tribunal. There was an issue relating to subsequent applications which she made on 17 March 1994 and 1 June 1994. The Tribunal took the view that those applications could not be part of this hearing because they had not been part of the complaint and had not been dealt with by the Board through the conciliation process and had not been the subject of a referral to us. The complaint was essentially one of sex discrimination as noted. There had been reference previously to a race discrimination component but that was not pressed and was not the subject of these proceedings. The complainant gave evidence and presented as a humble person. She is now married though at the time she was not. She was born on 28 April 1967 in Tonga and came to Australia at the age of approximately 13. She has three brothers and adopted parents who live in Australia, in Newcastle. She is now married and has one child. She left school after completing her Higher Secondary Certificate and studied at Hunter Institute of Technology where she obtained an Advanced Certificate in Commerce in 1989. She had been working part-time or casually at Steggles when she sought the employment with BHP and continued with that employment until some time in mid-1994, having been granted full-time employment and some promotions at Steggles, when she left to go for a holiday to New Zealand and then appears to have married and fallen pregnant. The only employment experience that she had that was advised to the Tribunal was this employment at Steggles. The Tribunal heard from the complainant. The Tribunal also heard from the complainant's adoptive father, who also represented her as her agent, Mr Fonua, and very briefly heard from her brother, whose evidence however could not assist the Tribunal because it related to matters which were not the subject of these proceedings. The Tribunal also heard from Mr Peter John Walsh, the Superintendent of Human Resources, Planning and Services of the respondent, who had also produced an affidavit which annexed numerous documents. The complainant, in her evidence, and in answers to questions from the Tribunal, conceded that statements that she made in her affidavit to the effect that she believed that there was discriminatory conduct by the respondent in the manner in which it dealt with her based on her sex, was unable to explain the basis of her belief or provide any evidence for the basis of her belief. Indeed, when asked directly the question she responded to the effect that she got her information from her father and she just essentially believed that there had been discrimination. Much was made of the question of low long applications for employment were retained by the respondent at the relevant time. The complainant contends that she did not know that applications were only retained for six weeks and Mr Fonua in submissions referred to what he alleges were discrepancies in responses made by the respondent to questions posed during the preliminary skirmishes as to BHP's policies to keep applications for six weeks, six months, two years and other periods. However, it is significant in the Tribunal's mind that the complainant made more than three applications within the period September to December 1988, a period of some three months. That would indicate, so far as the Tribunal is concerned, a belief or a knowledge that she had at that time that applications were only kept for periods of six weeks. When she makes the application on 28 March 1989, a few months afterwards, the Tribunal cannot accept her evidence that she did not know that the applications were only kept for six weeks. Evidence was given, both in affidavit form and orally from Mr Walsh, that that was the policy then of the company and the Tribunal accepts his evidence to that effect and notes that Mr Walsh distinguished between applications for labouring jobs, which were kept for six weeks, and applications for other types of jobs, which may have been kept for longer periods. The Tribunal accepts that that is both reasonable and understandable, and therefore accepts again that that was the policy of the respondent at that time. The Tribunal has before it a comparative table prepared by the respondent which appears at annexure 4 to the affidavit of Mr Walsh, which considers the nine persons who were appointed to labouring positions during the six week period following the lodgment of the application for employment by the complainant on 28 March 1989. The Tribunal is not here to consider the questions as to whether or not she should have been employed, and that is significant, but rather to consider if the complainant has established evidence of discrimination in the manner in which the employment process occurred sufficient to meet the provisions of s 24 and s 25 of the Act. The Tribunal accepts the evidence of Mr Walsh in his affidavit which appears at paragraph 5 of his affidavit, and it is not necessary for me to read that on the record. As explained in the annexure and on the basis of that evidence, which is really the only evidence before the Tribunal with the exception of one other piece of evidence which I will refer to shortly, there is no evidence that the respondent discriminated against the complainant on the basis of her sex. The other evidence is an admission by the complainant that indeed women were employed by the respondent to the position of labourer, and the fact that there had been some females employed, even though admittedly a substantially smaller percentage of females than males, is in the view of the Tribunal evidence which has to be taken into consideration as evidence that there was no discriminatory practice insofar as the manner in which the complainant's application for employment was treated. Of course, when considering these types of claims, questions of indirect or systemic discrimination are often raised and the Tribunal has to look to see whether there is evidence of direct or indirect discrimination against a complainant. The Tribunal is of the view that in this case not only has the complainant not established that there is no evidence of direct discrimination, the Tribunal is also not satisfied that the complainant has met the onus which is placed on her of providing evidence of indirect discrimination against the complainant. Of course that is a difficult task for any complainant to establish, but nevertheless there has to be some evidence and in this case, unfortunately for the complainant, there is just no evidence that the Tribunal can rely on to make a finding of indirect discrimination in the recruitment practice of the respondent at the time that the complainant made her application which would bring into provision the operations of the sections relating to sex discrimination. Mr Fonua in his submission made reference to the Equal Opportunity report of the respondent for a period in February 1993, and highlighted as significant the fact that there were no female plant and machine operators or drivers, whereas there are 161 male plant and machine operators at 1 February 1993. That may be of relevance at some stage but the Tribunal finds it of no relevance or assistance in determining the question of this complaint. As I have said, we have to look at the facts and circumstances during the period when the complainant made her application. Certainly it would not be sufficient evidence to meet the test that has to be applied. Mr Fonua also submitted in his submissions that the fact that the respondent made certain requirements of its job applicants, such as the need to have a driver's licence, forklift or crane tickets, that these requirements were requirements which brought into operation the provisions of s 24(1)(b). The Tribunal cannot accept that submission and does not believe that there is anything inherently discriminatory in a requirement that an applicant have a driver's licence because the ability to obtain a driver's licence is something which is open to any member of the population, irrespective of sex. Similarly the requirement to obtain a forklift licence or crane licence. The Tribunal therefore concludes that there was nothing inherently or indirectly discriminatory in the recruitment policy of the respondent at the relevant time, based on the evidence which the Tribunal had before it. The Tribunal does not have a duty to look beyond that evidence and can only make its decision on the basis of the evidence which is before it. The Tribunal would like to also pass an observation that this is again a case where complainants who come before the Tribunal without legal assistance may be at some disadvantage, and it is a matter of regret that these sorts of cases do come before the Tribunal. Without casting any aspersions in relation to the way in which the complainant prepared her case, or presented it through her agent, it nevertheless is a pity that the system has reached the stage where complainants without financial resources, as presumably is the case here, do not have legal representation and respondents in the corporate sense do have legal representation. For the reasons which have been stated the Tribunal therefore dismisses the complaint. The Tribunal also believes that this is not a case in which an order for costs should be made against the complainant. There have been various decisions of the Tribunal in relation to the type of case when costs orders should be made and the Tribunal applies the principles which are set forth in those decisions, and is of the view that this is not an appropriate case for an order for costs to be made against the complainant. The Tribunal does not believe that the complaint fits into the category of a frivolous or vexatious complaint. Accordingly, no order for costs will be made. I think that concludes the orders which need be made. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.