Understanding AI&S (Australian Iron and Steel) v Banovic (1989) 168 CLR 165 linked to Discrimination Chapter 14 (spec

c 14.5 direct and indirect discrimination) Direct discrimination involves treating a person less favourably because of some characteristic or status they have or are believed to have Indirect discrimination occurs where a policy or approach is adopted that appears to be neutral yet nonetheless has the effect of discriminating against those with a particular characteristic o Usually defined to mean discrimination against a person because they do not comply with a condition with which a substantially higher proportion of people of a different status can comply, and which is not reasonable in the circumstances In the case, an employer indirectly discriminated on the grounds of sex when selecting staff for redundancy on a last on, first off basis The recently hired employees were far more likely to be female ironically because the employer had been making an effort to recruit women in order to provide more gender balance

In NSW, indirect discrimination is defined in relation to each prohibited ground. In every case the focus is on the requirement or condition and its disproportionate impact where the discriminator: requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons [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.73 There are four elements that must be established:

the discriminator requires the aggrieved person to comply with a requirement or condition; a substantially higher proportion of persons of a different status comply or are able to comply; the requirement is not reasonable having regard to the circumstances; and the aggrieved person does not, or is not able to, comply.

Australian Iron and Steel (AI&S) sought to retrench workers on the basis of the last on, first off principle. AI&S had, as the EOT found, discriminated against women in its employment practices over many years.
Using the AI&S case as an example, the act was the imposition of the last on, first off policy. The detriment was that some people lost their jobs. However, in order for the act to constitute discrimination there must be a link between the persons sex and the detriment that link requires that a disproportionate

percentage of women compared with men suffered detriment as a result of the act. The Court held that the defendant's retrenchment policies of "last on, first off" constituted discrimination on the basis of sex in violation of the AntiDiscrimination Act 1977 (New South Wales, Australia), which prohibits imposition of a condition with which a substantially higher proportion of one sex can comply than the other sex. Although the retrenchment itself applied to about the same proportion of members of both sexes, the court reasoned that, because the defendant had engaged in discrimination in hiring in the past, fewer women than men were employed in positions of seniority immune from retrenchment than would have otherwise been the case, and thus indirect discrimination had occurred. It concluded that retrenchment policies that kept alive the effects of past employment discrimination constituted, themselves, sex discrimination.