Dao v Australian Postal Commission [1987] HCA 13;

Dao v Australian Postal Commission [1987] HCA 13; - HCA 1987 case summary — Zoe

[52]

11. The appellants complain of two distinct acts of discrimination: first, in respect of their applications for permanent employment; secondly, in respect of their dismissal from temporary employment. It is convenient to consider each complaint separately. With respect to the appointment of an officer, the powers of the Commission conferred by s.42 of the Commonwealth Act are detailed and far-reaching. Indeed, the section goes beyond the investing of powers in the Commission. It imposes a duty which the Commission may not disregard. A person shall not be appointed as an officer unless, inter alia, the Commission is satisfied as to his health and physical fitness and unless he meets such other requirements as the Commission may determine. But it is said for the appellants that the broad discretions that are here conferred upon the Commission are not unfettered. They must be exercised reasonably and it is not to be supposed that their exercise was intended to be an occasion for discriminatory practices whether on the basis of sex or race or disability. Reference was made to the "Convention Concerning Discrimination In Respect Of Employment And Occupation" which appears as Schedule 1 to the Human Rights and Equal Opportunity Commission Act 1986 (Cth). All this may be conceded. Of course the Commission is to act responsibly in discharge of the duties and exercise of the powers which form its mandate under the statute. But this is not to say that the Commonwealth Parliament intended that the employment policies devised and implemented by the Commission are to be subject to the supervision of State laws in all their variety from State to State: cf. Williams v. Hursey [1959] HCA 51; (1959) 103 CLR 30, per Fullagar J. at pp 68-69. The Parliament has made its own provision for maintaining the propriety of decisions made, inter alia, by Commonwealth instrumentalities such as the Commission (see, for example, the Racial Discrimination Act 1975; Administrative Decisions (Judicial Review) Act 1977; Sex Discrimination Act 1984).

[57]

15. In the submissions advanced for the appellants, reliance was placed on the decision of this Court in Wardley. In that case it was held that the provisions of an agreement registered under the Conciliation and Arbitration Act 1904 (Cth), dealing with certain particular aspects of the employment relationship between employer and employee, did not evince an intention to exclude the operation of a Victorian law outlawing sex discrimination in relation to the termination of employment. The award dealt with the procedures governing the termination of employment but not with the grounds upon which the employment might be terminated. It was seen therefore to be intended to operate against the background of the general law, both common law and statutory, relating to the contract of employment. There was no difficulty then in the circumstances of that case, in allowing full rein to the State legislation. A different result emerged, however, in the analogous case of Metal Trades Industry Association v. Amalgamated Metal Workers' and Shipwrights' Union [1983] HCA 28; (1983) 152 CLR 632. A number of awards made under the Conciliation and Arbitration Act contained provisions for the termination of employment on notice and the period of notice, dismissal for misconduct without notice and the rights of an employee to wages in consequence of termination or dismissal. The Employment Protection Act 1982 (N.S.W.) required employers to give to the State Industrial Registrar a notice of their intention to terminate the employment of any employee, except in the case of termination for misconduct, and conferred on the State Industrial Commission power to make orders in relation to dismissed employees, including orders for severance pay, payment of gratuities and superannuation benefits. The State legislation was held to be inconsistent and therefore invalid in its application to the employment relationships governed by the awards. The position was described succinctly in the following passage of the joint judgment of Gibbs C.J., Wilson and Dawson JJ., at p.644:

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Court

Decision date

Before

Source

Judgment (65 paragraphs)

Dao v Australian Postal Commission [1987] HCA 13; (1987) 162 CLR 317 (14 April 1987)

Parties

Legislation Cited (12)

Cases Cited (11)