Maurice Blackburn - Discrimination Seminar, 3rd September 2015

EMPLOYMENT AND

INDUSTRIAL LAW

SECTION

3 September 2015

Distinguishing between discrimination laws: what is the best jurisdiction for your member?

OUR OFFICES

CONTENTS

This presentation considers the differences between federal and state discrimination laws and the general protections provisions in the Fair Work Act 2009, as they apply to your members who have been discriminated against at work. We will concentrate on recent case law in each jurisdiction and focus on the practical applications of each system by comparing the scope of each scheme, the procedural elements of each jurisdiction, the potential outcomes available and the possible risks involved.

We will compare each jurisdiction under the following topics:

• Part 1 – Overview and scope of each discrimination jurisdiction

• Part 2 - Procedures including time limits

• Part 3 – Potential outcomes including damages and costs

EILS Seminar - 3 September 2015 - Distinguishing between discrimination laws

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Part 1 – Overview and scope of each discrimination jurisdiction


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INTRODUCTION – APPLICABLE LAWS

▪ Federal discrimination laws: – Racial Discrimination Act 1975 (Cth) (RDA); – Sex Discrimination Act 1984 (Cth) (SDA); – Disability Discrimination Act 1992 (Cth) (DDA);– Age Discrimination Act 2004 (Cth) (AgeDA); – Australian Human Rights Commission Act 1986 (Cth) (AHRCA).

▪ State discrimination laws: – Queensland - Anti-discrimination Act 1991 (Focus for today) (ADA); – Victoria – Equal Opportunity Act 2010; – New South Wales – Anti-discrimination Act 1973; – South Australia – Equal Opportunity Act 2010; – Western Australia – Equal Opportunity Act 1984;– Australian Capital Territory – Discrimination Act 1991;– Northern Territory – Anti-discrimination Act 1992.

▪ General protections: Fair Work Act 2009 (Cth) (FWA).


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RELATIONSHIP BETWEEN THE LAWS

Concurrent proceedings/complaints

▪ If a complaint or a proceeding is brought under the ADA, it cannot be brought under federal discrimination laws. For example, see section 13(4) of the DDA.

▪ Under section 140 of the ADA the Anti-Discrimination Commission may reject or stay a complaint if there are concurrent proceedings in a court or tribunal in relation to the act or omission the subject of the complaint, or the act or omission has been adequately dealt with by another entity.

▪ Part 6-1 of the FWA generally prevents concurrent multiple actions involving the same conduct. Failure to comply with these provisions can result in a claim being dismissed.

▪ Alex v Costco Wholesale Australia [2014] FWC 1904 - section 725 of the FWA operated as a bar to the application to the FWC being made because a AHRC complaint that had also been made had not been withdrawn.


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Part 1A – Federal Discrimination Laws


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FEDERAL DISCRIMINATION – KEY CONCEPTS

Who do the laws apply to?

Federal discrimination laws apply throughout Australia and external territories, but do not have extraterritorial effect.

The following sections set out the geographical application of each Act:

– Racial Discrimination Act 1975 (Cth) – section 4 – Sex Discrimination Act 1984 (Cth) – section 9– Disability Discrimination Act 1992 (Cth) – section 13– Age Discrimination Act 2004 (Cth) – section 9

In Brannigan v Commonwealth of Australia [2000] FCA 1591 the Federal Court held that the SDA, DDA and RDA do not have extraterritorial effect. Therefore, they do not apply to a complaint where conduct has occurred entirely overseas.


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Attributes/grounds

Each federal discrimination Act covers different attributes/grounds (e.g. sex, disability, age, race).

Direct vs. indirect discrimination

Each federal discrimination act makes direct and indirect discrimination unlawful. There are however differences between each Act.

Multiple reasons

If the discriminatory act is done for one or more other reasons, and one of the reasons is because of the protected attribute, the act is taken to be done because of the protected attribute.


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Discrimination in employment

It is unlawful for an employer or a person acting or purporting to act on behalf of an employer to discriminate against a person based on a protected attribute (e.g. sex, disability, age, race):

– in the arrangements made for the purpose of determining who should be offered employment; or

– in determining who should be offered employment; or– in the terms or conditions on which employment is offered.

It is unlawful for an employer or a person acting or purporting to act on behalf of an employer to discriminate against an employee based on a protected attribute (e.g. sex, disability, age, race):

– in the terms or conditions of employment that the employer affords the employee; or

– 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;

– by dismissing the employee; or– by subjecting the employee to any other detriment.


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Exemptions

Each Act contains specific exemptions from unlawful discrimination.

For example exemptions under the SDA include, the residential care of children; charities; religious bodies; educational institutions; sport; and combat duties.

The Commission may also grant exemptions on application by a person or class of persons.

Special Measures

Employers are allowed to take special measures for the sole or dominant purpose of achieving substantive equality between persons with protected attributes and persons without those protected attributes.

Jacomb v Australian Municipal Administrative Clerical & Services Union (2004) 140 FCR 149 - union successfully defended the election position only open to women.


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FEDERAL DISCRIMINATION

Age Discrimination Act – section 14 – Direct Discrimination

A person discriminates against a person on the ground of age if:

(a) the discriminator treats or proposes to treat the aggrieved person less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person of a different age; and

(b) the discriminator does so because of:

(i) the age of the aggrieved person; or

(ii) a characteristic that appertains generally to persons of the age of the aggrieved person; or

(iii) a characteristic that is generally imputed to persons of the age of the aggrieved person.


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Age Discrimination Act – section 15 – Indirect Discrimination

A person discriminates against another person on the ground of age if:

(a) the discriminator imposes, or proposes to impose, a condition, requirement or practice; and

(b) the condition, requirement or practice is not reasonable in the circumstances; and

(c) the condition, requirement or practice has, or is likely to have, the effect of disadvantaging persons of the same age as the aggrieved person.

The burden of proving that the condition, requirement or practice is reasonable in the circumstances lies on the discriminator.


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Age Discrimination Act – section 18 - Exemption for inherent requirements

It is not unlawful for an employer to discriminate against another person, on the ground of the other person's age, if the other person is unable to carry out the inherent requirements of the particular employment because of his or her age.

In deciding whether the other person is unable to carry out those requirements because of his or her age, take into account:

– the other person's past training, qualifications and experience relevant to the particular employment; and

– if the other person is already employed by the employer--the other person's performance as an employee; and

– all other relevant factors that it is reasonable to take into account.


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Disability Discrimination Act - section 4 – meaning of “disability”

Broad definition - Includes a disability that: presently exists, previously existed but no longer exists, may exist in the future (including because of a genetic predisposition to that disability) or is imputed to a person.

Purvis v New South Wales [2003] HCA 62; 217 CLR 92; 202 ALR 133; 78 ALJR 1

High Court considered the definition of disability within the meaning of the Disability Discrimination Act, giving the term disability an expansive definition.


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Disability Discrimination Act – section 5 - Direct discrimination

A person discriminates against another person on the ground of a disability of the aggrieved person if, because of the disability, the discriminator treats, or proposes to treat, the aggrieved person less favourably than the discriminator would treat a person without the disability in circumstances that are not materially different.

A person also discriminates against another person on the ground of a disability of the aggrieved person if:

(a) the discriminator does not make, or proposes not to make, reasonable adjustments for the person; and

(b) the failure to make the reasonable adjustments has, or would have, the effect that the aggrieved person is, because of the disability, treated less favourably than a person without the disability would be treated in circumstances that are not materially different.

Recent case – reasonable adjustments - Huntley v State of NSW, Department of Police and Justice (Corrective Services NSW) [2015] FCCA 1827 EILS Seminar - 3 September 2015 - Distinguishing between discrimination laws

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Disability Discrimination Act – section 6(1) – Indirect discrimination

A person discriminates against another person on the ground of a disability of the aggrieved person if:

Section 6(1): (a) the discriminator requires, or proposes to require, the aggrieved person to comply with

a requirement or condition; and

(b) because of the disability, the aggrieved person does not or would not comply, or is not

able or would not be able to comply, with the requirement or condition; and

(c) the requirement or condition has, or is likely to have, the effect of disadvantaging

persons with the disability.

Section 6(2): (a) the discriminator requires, or proposes to require, the aggrieved person to comply with

a requirement or condition; and

(b) because of the disability, the aggrieved person would comply, or would be able to

comply, with the requirement or condition only if the discriminator made reasonable

adjustments for the person, but the discriminator does not do so or proposes not to do so;

and

(c) the failure to make reasonable adjustments has, or is likely to have, the effect of

disadvantaging persons with the disability.


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FEDERAL DISCRIMINATIONDisability Discrimination Act - inherent requirements

The Disability Discrimination Act provides an exception to discrimination in employment,

where:

▪ the discrimination relates to particular work (including promotion or transfer to particular

work); and

▪ because of the disability, the person would be unable to carry out the inherent

requirements of the particular work, even if the relevant employer, principal or

partnership made reasonable adjustments.

The following factors are to be taken into account when determining whether the person

would be able to carry out the inherent requirements of the particular work:

▪ the aggrieved person's past training, qualifications and experience relevant to the

particular work;

▪ if the aggrieved person already works for the discriminator--the aggrieved person's

performance in working for the discriminator;

▪ any other factor that it is reasonable to take into account.


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Sex Discrimination Act

The SDA makes it unlawful to discriminate against a person based on a number of attributes:

• sex – section 5;

• sexual orientation – section 5A;

• gender identity – section 5B;

• intersex status – section 5C;

• marital or relationship status – section 6;

• pregnancy or potential pregnancy – section 7;

• breastfeeding – section 7AA;

• family or carer’s responsibilities – section 7A.


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Sex Discrimination Act – Direct discrimination - all attributes

A person discriminates against another person on the ground of the attribute of the aggrieved person if, by reason of:

(a) the attribute of the aggrieved person;

(b) a characteristic that appertains generally to persons of the attribute of the aggrieved person; or

(c) a characteristic that is generally imputed to persons of the attribute of the aggrieved person;

the discriminator treats the aggrieved person less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person of a different attribute.


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FEDERAL DISCRIMINATIONSex Discrimination Act – Indirect discrimination – all attributes except family responsibilities

“A person discriminates against another person on the ground of the attribute of the aggrieved person if the discriminator imposes, or proposes to impose, a condition, requirement or practice that has, or is likely to have, the effect of disadvantaging persons of the same attribute as the aggrieved person.

A person does not discriminate against another person by imposing, or proposing to impose, a condition, requirement or practice that has, or is likely to have, a disadvantaging effect if the condition, requirement or practice is reasonable in the circumstances.”


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FEDERAL DISCRIMINATIONSex Discrimination Act – Indirect discrimination - family responsibilities

Section 7A – Discrimination on the ground of family responsibilities does not include indirect discrimination, however, in Hickie v Hunt & Hunt [1998] HREOCA 8, the requirement to work full-time was found to be indirect sex discrimination, based on sex, because women are predominately required to work part-time to meet family responsibilities.

Hickie v Hunt & Hunt [1998] HREOCA 8

Commissioner Evatt stated:

“I also infer from general knowledge that women are far more likely than men to require at least some periods of part time work during their careers, and in particular a period of part time work after maternity leave, in order to meet family responsibilities. In these circumstances I find that the condition or requirement that Ms Hickie work full-time to maintain her position was a condition or requirement likely to disadvantage women.”


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Also part of Sex Discrimination Act – unlawful sexual harassment

Primary provision - section 28A of the SDA

Elements:

▪ Conduct of a sexual nature;

▪ includes an unwelcome sexual advance, or an unwelcome request for sexual favours, to the person harassed;

▪ In circumstances in which a reasonable person would have anticipated the possibility that the person harassed would be offended, humiliated or intimidated;

▪ Need to have regard to all the circumstances.


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Racial Discrimination Act 1992 – section 9(1) – Direct discrimination

“It is unlawful for a person to do any act involving a distinction, exclusion, restriction or preference based on race, colour, descent or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life.”

Racial Discrimination Act 1992 – section 9(1A) – Indirect discrimination

“…requiring a person to comply with a term, condition or requirement… the act of requirement such compliance is to be treated, for the purposes of this Part, as an act involving a distinction based on, or an act done by reason of, the other person's race, colour, descent or national or ethnic origin.”


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Racial Discrimination Act – section 18C – Racial vilification

It is unlawful for a person to do an act, otherwise than in private, if:

▪ the act is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people; and

▪ the act is done because of the race, colour or national or ethnic origin of the other person or of some or all of the people in the group.

Eatock v Bolt (No 2) [2011] FCA 1180 – article by Andrew Bolt was held to have been reasonably likely to offend, insult, humiliate or intimidate some Aboriginal persons of mixed descent who have a fairer, rather than darker, skin and who by a combination of descent.


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Part 1B – State Discrimination Laws


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STATE DISCRIMINATION (QLD)

Who does the law apply to?

The ADA applies throughout Queensland.

Ground/Attributes – Section 7

The ADA protects the following attributes:

▪ sex; relationship status; pregnancy; breastfeeding; family responsibilities; gender identity; sexuality; parental status;

▪ age; race; impairment; religious belief or religious activity;

▪ political belief or activity;

▪ trade union activity;

▪ lawful sexual activity;

▪ association with, or relation to, a person identified on the basis of any of the above attributes.


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Attributes - unique to State discrimination

Dovedeen Pty Ltd v GK [2013] QCA 116 re “lawful sexual activity”

The Court said the ADA prohibits discrimination on the basis that a person is a lawfully employed sex worker, however it does not prohibit discrimination on the basis the person intends to perform work as a sex worker at a motel.

Cairns Regional Council v Carey [2012] QCATA 150 re “political opinion”

(a) The respondent Councillors discriminated against Mr Carey on the basis of political activity that they presumed him to have engaged in;

(b) The respondent Councillors discriminated against Mr Carey on the basis of his association with Ms Allen, a person they identified on the basis of her political belief and activity; and

(c) These factors in combination were a substantial reason for the termination


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Direct discrimination

Section 10 of the ADA defines direct discrimination where a person discriminates on the basis of an attribute happens if a person treats, or proposes to treat, a person with an attribute less favourably than another person without the attribute is or would be treated in circumstances that are the same or not materially different.

Indirect discrimination

Indirect discrimination requires a comparison with people without the attribute (section 11).

Multiple reasons

If there are 2 or more reasons why a person treats, or proposes to treat, another person with an attribute less favourably, the person treats the other person less favourably on the basis of the attribute if the attribute is a substantial reason for the treatment.


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Discrimination in employment – section 15

It is unlawful for a person to discriminate:

▪ in any variation of the terms of work; or

▪ in denying or limiting access to opportunities for promotion, transfer, training or other benefit to a worker; or

▪ in dismissing a worker; or

▪ by denying access to a guidance program, an apprenticeship training program or other occupational training or retraining program; or

▪ in developing the scope or range of such a program; or

▪ by treating a worker unfavourably in any way in connection with work.

Dismissing includes ending the particular work of a person by forced retirement, failure to provide work or otherwise.


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Exemptions for discrimination in work and work related areas – sections 24 to 36

Genuine occupational requirement

Section 25 provides a broad exemption from unlawful discrimination in work and work related areas, if a person imposes a genuine occupational requirement.

A genuine occupational requirement includes acting in a way consistent with the employer’s religious beliefs.


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Other exemptions

Other exemptions include, residential domestic services, residential childcare services, work with children and single sex accommodation.


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Part 1C– Fair Work Act – General Protections


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GENERAL PROTECTIONS (SECTION 351 OF FWA)

Who does the law apply to?

General protections apply to action taken:

• by Constitutionally-covered entities;

• in a Territory or Commonwealth place;

• by a trade and commerce employer or employee; or

• by a Territory employer or employee.


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Three elements for adverse action

▪ There must be adverse action;

▪ The adverse action must be taken against a person who is an employee with an attribute; and

▪ The adverse action must be taken because of that attribute.

Essential question: Why the decision maker took the adverse action?

The prohibited reason must be a ‘substantial or operative factor’ influencing the adverse action, or alternatively, an ‘operative or immediate’ reason for acting –Board of Bendigo Regional Institute of Technical and Further Education v Barclay(2012) 248 CLR 500.

Question of fact to be determined in light of all of the circumstances (Barclay at [44]).


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Ground/Attribute

Section 351(1) of the FWA provides that an employer must not take adverse action against a person who is an employee, or prospective employee, of the employer because of the person’s race, colour, sex, sexual preference, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin.

However, under section 351(2), subsection (1) does not apply to action that is:– not unlawful under any antidiscrimination law in force in the place

where the action is taken; or– taken because of the inherent requirements of the particular position

concerned; or– if the action is taken against a staff member of an institution conducted in

accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed—taken:

(i) in good faith; and(ii) to avoid injury to the religious susceptibilities of adherents of

that religion or creed.


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Is indirect discrimination covered by section 351(1) of the FWA?

No superior court has determined that section 351 of the FWA encompasses the concept of indirect discrimination, it is not evident on the wording of the section.

Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500 (Barclay)

▪ Indicates that indirect discrimination would not be covered as indirect discrimination generally occurs without any intent or purpose to discriminate.

State of Victoria (Office of Public Prosecutions) v Grant [2014] FCAFC 184

▪ Employer had not indirectly discriminated against an employee because no link between illness and conduct which he was terminate for.


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RailPro Services Pty Ltd v Flavel [2015] FCA 504 re disability discrimination

The Federal Court of Australia reversed a decision by the Federal Circuit Court. Perry J identified the differences between general protections and the discrimination.

No comparator

With the exception of where adverse action is taken in the form of an employer discriminating between the employee and other employees of the employer, section 351(1) does not require that any comparison be undertaken between the treatment of the employee in question and any other employee(s).

Section 351(1) relevantly prohibits specific conduct which the Parliament has adjudged to be discriminatory in a general sense, in contrast to, for example, section 15(2) of the DDA where the comparison must still be made in the particular case in order to determine whether there has been a breach of the DDA.


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RailPro Services Pty Ltd v Flavel [2015] FCA 504 re disability discrimination

Substantial and operative reason

Under the DDA, it suffices if an act is done for a proscribed reason even if it is not a “substantial reason” in contrast to the need to establish that the proscribed reason is a substantial and operative reason under the FWA.

Perceived disability

It is sufficient under the Disability Discrimination Act if the discrimination is referrable to a perceived, as opposed to actual, disability or a disability of an associate (see “disability” defined in section 4(1) of the DDA). That is not the case again under the FWA.


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OTHER CONSIDERATIONS…

Breach of contract claims

If an employee has a breach of contract claim and/or a claim under the Australian Consumer Law in addition to a discrimination claim it might be advantageous to bring a claim under the FWA or Federal discrimination law.

This is because breach of contract claims and Australian Consumer Law claims can’t be pursued in QCAT but could be included in a complaint to the FC or FCC in relation to a general protections or federal discrimination law claim.

Naming Individuals

Individuals can be named as respondents under state and federal discrimination law. Individuals “involved” in a contravention can be named respondents in general protections claims.


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SUMMARY - SCOPE SCOPE OF

DISCRIMINATION

Federal Discrimination State Discrimination (QLD) General Protections

Protected Attribute/s Race, colour, sex, sexual preference,

age, physical or mental disability, marital

status, family or carer’s responsibilities,

pregnancy, breastfeeding, national

extraction or social origin

Race, sex, sexual preference, age,

physical or mental disability, marital


pregnancy, religion, political opinion

Race, colour, sex, sexual preference,

age, physical or mental disability, marital


pregnancy, religion, political opinion,

national extraction or social origin (but

only to the extent that the attribute is

covered by a federal or state anti-

discrimination law)

Direct and indirect? Direct and indirect discrimination

unlawful, except for family

responsibilities

Direct and indirect discrimination

unlawful

Does not prohibit discrimination but

rather prohibits the employer from taking

adverse action motivated by any one or

more of the listed attributes. For this

reason indirect discrimination in unlikely

to be covered.

Reason for

discrimination

Does not need to be a dominant or

substantial reason if multiple reasons

Substantial reason Prohibited reason must be a ‘substantial

or operative factor’ influencing the

adverse action

Vicarious liability? Yes, however individuals can be named Yes, however individuals can be named Individuals involved in contraventions

can be liable for the penalties.

Burden of proof Applicant has onus of proof.

However, for indirect discrimination

employers has onus of proof re

reasonableness of term/condition

Complainant has onus of proof.

However, for indirect discrimination

employers has onus of proof re

reasonableness of term/condition

Once adverse action established, onus

on employer to prove that it did not take

the adverse action because of the

proscribed reason.


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Part 2 - Procedures including time limits


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43

Complaint lodged with

AHRC

Information obtained by

AHRC

Conciliation Conference

Not resolved

Apply to the FCA within 60 days of

written notice

Resolved

Terminated

FEDERAL DISCRIMINATION LAWS

Complaint to the AHRC

Under the AHRCA complainants seeking redress for unlawful discrimination can make a complaint to the Australian Human Rights Commission (AHRC) (section 46P).

Time limit

A complaint to the AHRC should be made within 12 months of the discrimination taking place. If the complaint is made outside the 12 month timeframe, the AHRC can decline to consider the complaint (section 46PH).

Compulsory Conference - Section 46PJ

The President may decide to hold a compulsory conference between the parties. Compulsory conferences are private. Unless the person presiding over the conference consents, the parties are not to be represented by another person.


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Termination – section 46PH

The complaint may be terminated if the President is satisfied:

▪ that the alleged unlawful discrimination is not unlawful discrimination;

▪ the complaint was lodged more than 12 months after the unlawful discrimination took place;

▪ The complaint is trivial, vexatious, misconceived or lacking substance;

▪ The complainant has already been dealt with by the Commission or another statutory authority.

▪ There are no real prospects of success.

If the complaint is terminated - the President must notify the complainants in writing of that decision and of the reasons for that decision.


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Application to the FCA or FCC – section 46PO

If the AHRC terminates the complaint, you can then apply to the Federal Court however you must do so within 60 days of the notice being issued.

Kujundzic v MAS National & Ors [2013] FMCA 8 - Complaint to the AHRC was terminated on the basis that it had been lodged more than twelve months after the alleged unlawful discrimination took place. FMCA accepted application made within 60 days.

Coombe v Bonney & Anor [2015] FCCA 916 – Kujundzic followed however given the discrimination was alleged to have occurred in 2010/2011 and the complaint was made in 2014, matter was permanently stayed the matter, on the basis that respondent unable to receive a fair hearing, given the time which has elapsed since the complaints arose.


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Complaint made to Anti-Discrimination Commission Queensland

Complaint accepted

Compulsory conference

Not resolved Resolved

Complainant applies to QCAT for hearing and determination.


Lodging the complaint

Making complaint – section 134

Complaint can be made to the Anti-Discrimination Commission by a person or an agent. A complaint may allege more than one contravention.

Agent is defined in the Dictionary of the ADA a person who has actual, implied or ostensible authority to act on behalf of another.

Time limit – section 138

Complaint must be made within 1 year of the alleged contravention. The Commissioner has discretion to accept a complaint after 1 year has expired if the complainant shows good cause.

Buderim Ginger Ltd v Booth [2002] QCA 177 – re the matters which the decision maker might have regard when forming an opinion as to whether a complainant has shown good cause.


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Complaints involving dismissed workers - section 153

If a dismissed worker is entitled to:

▪ apply under the ADA; and

▪ for “industrial relief” (i.e unfair dismissal under Industrial Relations Act 1999 (QLD))

and the worker does not apply for industrial relief before lodging a complaint, the worker may only proceed with the complaint and may not apply for industrial relief.

If a worker who is dismissed applied for industrial relief before lodging a complaint, the worker may proceed with both the complaint and the industrial relief, however the tribunal might not may not make an order in respect of reinstatement of the worker.


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The Commissioner may direct a person to take part in a conciliation conference.

The direction can be enforced by filing a copy with a court of competent jurisdiction, e.g. the District Court.

Applying to the Court – section 164A

If a conference has been held and the complaint has not been resolved, the complainant may give the Commissioner notice requiring the Commissioner to refer the complaint to QCAT.

Can also request referral if the Commissioner has not finished dealing with complaint 6 months after it has been accepted.

QCAT must accept a complaint that is referred to it unless complaint was made to the Commissioner more than 1 year after the alleged contravention.

QCAT may allow the complaint to be amended.


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GENERAL PROTECTIONS (S351 OF THE FWA)


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Application to FWC

Dismissal Complaint – must be made within 21 days of conduct.


Resolved Not resolved – certificate issued re advice Court application (or

arbitration if dismissal

Non-dismissal complaint – must be made within 6 years of

conduct

If parties agree to conference

If parties do not agreed to conference

Arbitration by FWC – matter determined (must be made

withn 14 days)

Application to FCC or FCA – matter determined (must be

made within 14 days)


• Application to FWC - Under the FWA a person may apply to the Fair Work Commission to deal with a dispute.

• Time limit - A dismissal dispute must be made within 21 days after the dismissal takes effect. The FWC may extend this time limit in exceptional circumstances. For a non-dismissal dispute the time limit is 6 years.


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• Compulsory conference - For a dismissal claim – the FWC may deal with the dispute by mediation or conciliation. For a non-dismissal claim – the parties must agree to the conference.

• Arbitration - In a dismissal claim, if the parties agree the FWC may deal with the dispute by arbitration. After conducting a conference and taking into account all of the material presented, if the Commission considers that the dispute, if taken to Court, would not have a reasonable prospect of success, the Commission must advise the parties.

▪ Applying to the Court - If the FWC has issued a certificate a person can make an application to the FCC or Federal Court. The application must be made within 14 days of the certificate being issued.


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SUMMARY – PROCEDURES Federal Discrimination State Discrimination

(QLD)

General Protections

Initial

complaint/application to

be made to…

Australian Human Rights

Commission

Anti-Discrimination

Commission

Fair Work Commission or

can be made straight to

FCA or FCC if non-

dismissal

Time limit to lodge initial

complaint

12 months from the date 12 months from the date 21 days for dismissal or 6

years from conduct for non-

dismissal

Conference Compulsory conciliation

conference

Compulsory conciliation

conference

Dismissal – compulsory

Non-dismissal – if parties

agree

Can individuals be

represented by another

person at the conference?

Only by consent although

not usually opposed

Only with permission

although not usually

opposed

Only with permission

although not usually

opposed

Time limit to apply to

Court?

If a complaint is terminated

can apply to the Federal

Court or Federal Circuit

Court. Must apply within 60

days.

QCAT can decline to accept

the claim if conduct

occurred outside 12 months

of claim being made to Anti-

discrimination

Commissioner

Dismissal matters - Can

apply to FCC or FCA within

14 days of the issuing of a

certificate by the FWC.

Non-dismissal – no

certificate usual 6 years

applies.


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Part 3 – Potential outcomes including damages and costs


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Interim injunctions – Section 46PP

Any time after a complaint is lodged the Federal Court or the Federal Circuit Court can grant an interim injunction to maintain the status quo or the rights of any complainant. The court cannot require a person to give an undertaking as to damages.

Remedies

Wide powers

Section 46PO(4) of the Australian Human Rights Commission Act (1986) “any orders it thinks fit”

There are a broad range of remedies available for discrimination complaints. Applicants can claim financial compensation including special damages covering economic losses, general damages and exemplary or aggravated damages, and other non-financial compensation.


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Type of Damages

Economic loss (past and future loss)

▪ Expense, or loss of income, suffered by the complainant because of the respondent’s unlawful conduct and is capable of reasonably precise mathematical calculation.

Non-economic loss (i.e. general damages)

▪ Compensation for hurt, humiliation and distress;

▪ Not capable of reasonably precise mathematical calculation.

Aggravated Damages

▪ Compensatory where conduct particularly egregious and insulting

Exemplary Damages

▪ In addition to general, aimed at punishing offender


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Recent Cases

Re Racial Discrimination Act

Baird v Queensland (No 2) [2006] FCAFC 198 - Damages – ranging from $17,000 to $85,000

Gama v Qantas Airways Ltd [2006] FMCA 1767, upheld on appeal: Qantas Airways Ltd v Gama [2008] FCAFC 69 - Total Damages: $71,692

On appeal, the Full Federal Court upheld the award and calculation of damages, notwithstanding that it overturned the finding at first instance that certain of the remarks constituted disability discrimination.

Trapman v Sydney Water Corporation & Ors [2011] FMCA 398 - Total damages: $5,000 (non-economic)

There was no economic loss. Scarlett FM found that the injury from telling “a weak and unfunny racist joke”, whilst being a practice that should not be permitted in the workplace, was at the lower end of the scale. A restrained, but not minimal award was appropriate.


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FEDERAL DISCRMINATION

Federal discrimination - costs

No specific provisions about costs in federal discrimination legislation. Therefore usual position applies, costs awarded against unsuccessful party.

The Federal Court and the Federal Circuit Court is a costs jurisdiction. Therefore there is a costs risk to initiating proceedings in these jurisdictions.

Yeoh v IBM Australia Limited [2015] FCCA 724

Judge Street said she had embellished and exaggerated evidence - including an allegation that she had been called a "baby brain" - to "try and advance her interests in respect of the proceedings.

Justice Street ordered the applicant to pay IBM's costs of $150,000 after taking into account that she rejected the employer's offer for the parties to meet their own costs if she withdrew the action.


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Interim injunctions – section 144

A complainant or the Commissioner may apply to QCAT to seek an order prohibiting a person from doing an act that might prejudice the investigation or conciliation or the complaint, or an order that the tribunal might make after a hearing. QCAT will make the order if satisfied it is in the interests of justice to do so.

McIntyre v Hastings Deering (Australia) Ltd & Anor [2012] QCAT 438

▪ A person who had made a complaint to the ADCQ alleging discrimination on the basis of family responsibilities by her employer proposing to change her work hours/arrangements, applied to the tribunal for orders to stop the changes pending the outcome of her complaint.

▪ The tribunal decided that the financial impact of denying the interim relief should prevail over the effects the employer could suffer if it is granted.


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Remedies

QCAT can make a variety of orders under section 209 of the ADA -

▪ an order requiring the respondent to pay to the complainant or another person, within a specified period, an amount the tribunal considers appropriate as compensation for loss or damage caused by the contravention;

▪ an order requiring the respondent to do specified things to redress loss or damage suffered by the complainant and another person because of the contravention;

▪ an order requiring the respondent to make a private apology or retraction;

▪ an order requiring the respondent to make a public apology or retraction by publishing the apology or retraction in the way, and in the form, stated in the order;

▪ an order requiring the respondent to implement programs to eliminate unlawful discrimination;


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Recent cases

Note: The Anti-discrimination Commission website publishes a list of remedies awarded by QCAT for complaints that succeeded at final hearing.


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State discrimination – costs

In QCAT the usual position is that parties bear their own costs. However, QCAT can award costs to a party if it is in the interests of justice, having regard to the factors in s 102 of the QCAT Act.

Dovedeen Pty Ltd & Anor v GK [2013] QCA 194

The Court of Appeal in ordering the payment of costs in the Appeal Tribunal of QCAT, was satisfied that the involvement of complex questions of law was sufficient ground for departing from the usual rule that parties to proceedings in QCAT bear their own costs.


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GENERAL PROTECTIONS

Remedies

Consent arbitration

If the parties agree to the Commission resolving the dispute by arbitration, the Commission will hold a determinative conference or hearing and may make one or more of the following orders:

• an order for reinstatement of the person

• an order for the payment of compensation to the person

• an order for payment of an amount to the person for remuneration lost

• an order to maintain the continuity of the person’s employment, or

• an order to maintain the period of the person’s continuous service with the employer.

There is no limit to the amount of compensation, in the same manner as a UFD application. (Max 6 months)


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GENERAL PROTECTIONS

Remedies

Court orders – Section 545 of the FWA

The Federal Court or the Federal Circuit Court may make any order the court considers appropriate if the court is satisfied that a person has contravened, or proposes to contravene, a civil remedy provision, including:

(a) an order granting an injunction, or interim injunction, to prevent, stop or remedy the effects of a contravention;

(b) an order awarding compensation for loss that a person has suffered because of the contravention; or

(c) an order for reinstatement of a person.


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GENERAL PROTECTIONS

Remedies

The Court can also make pecuniary penalty orders under section 546.

Stephens v Australian Postal Corporation (No.3) [2011] FMCA 999 - Penalty for contraventions involving unlawful termination of employment – termination because of disability and workers’ compensation rights penalty of $25,000 imposed.

Sayed v Construction, Forestry, Mining and Energy Union [2015] FCA 338 –re adverse action based on political opinion, Applicant only award $3,000 in compensation for hurt and humiliation however based on seriousness of contraventions on basis of political opinion to be subject to strong disapproval total penalties of $45,000 imposed.


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GENERAL PROTECTIONS

Costs

The FWA is generally a ‘no costs’ jurisdiction (including in appeal proceedings), unless proceedings are instituted vexatiously etc.

Direct Freight Express Pty Ltd v King [2015] FCCA 1066

Application for costs pursuant to section 570 FWA on grounds of unreasonable act or omission – costs awarded.

Zahra v Pharmacy Management Avoca Beach Pty Ltd (No.2) [2015] FCCA 1515

Costs application – whether the application was vexatious and unreasonable –costs awarded against the applicant.


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Summary


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SUPERANNUATION


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PHIL NOLAN

1800 810 812 (business hours)

mauriceblackburn.com.au