Issue 471
, Friday 29 May 2015
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In this issue
[1]
The ACT Appeal Court has found a civil servant
liable under the Civil Liability Act for $658,850 in negligence damages to
a staff member after failing to prove he had her consent to have sexual
intercourse with her during an interstate work conference. Expressed as
assault and battery, 38-year-old Sharon Whitehead claimed she had sustained
a personal injury in August 2007 because of Michael Moon's sexual
assault, which had caused her to lose her virginity. She claimed as a
result she had received treatment from a rape crisis centre and psychologists
and had been totally incapacitated for work from Aug 17, 2007,
to June 10, 2008. Master David Harper, who has since retired, had
entered a judgment against Moon for $668,856, including $10,000 for
aggravated damages and costs. Moon appealed against that decision, claiming
among other things Master Harper had erred in finding he did not have
Whitehead's consent to sexual intercourse. The court heard Whitehead had
met Moon in 2005, when they worked together at the Department of
Immigration and Multicultural Affairs. The following year, the pair engaged
in sexual activity short of intercourse. Whitehead left the same year to
work at the Department of Veterans Affairs. The pair met again in 2007,
after Moon had started working for the Child Support Agency and a few months
later Whitehead agreed to work at the agency under Moon's supervision but
said she did not want a sexual relationship with him. On Aug 13, the pair
travelled to Sydney to attend a two-day conference. They had agreed
beforehand to share a two-bedroom, two-bathroom apartment. It was
established on the first night the pair visited several sex shops in Oxford
St before returning to their apartment. Whitehall claimed Moon had entered
her bedroom without her permission and forced himself on her despite her repeatedly
telling him to "get out". Master Harper accepted Whitehall's
evidence. In the Appeal Court, Chief Justice (CJ) Helen Murrell
and Justice John Burns said Moon was liable in battery unless he
proved on the balance of probabilities he had Whitehall's consent to that
contact. Justice Hilary Penfold agreed. They found Master Harper had
gone "beyond finding" Moon had failed to discharge that onus. CJ
Murrell and Justice Burns found Moon's appeal must therefore fail
and Justice Penfold agreed. They upheld Master Harper's decision but
set aside the $10,000 award of aggravated damages. (Moon v Whitehead [2015], ACTCA 17,
22/05/2015; Sharon Whitehead v Michael Moon [2013], ACTSC 243,
05/12/2015)
[2]
A vote in Federal Parliament on same-sex marriage
appears destined for 2015 given Ireland's May 23 overwhelmingly
referendum vote
supporting it. However, Prime Minister Tony Abbott said
while the Liberal Party Room will consider the issue of same-sex marriage
at some stage his "Government's absolute priority right now and for
the next few weeks will be helping small business". The party room
would decide on how the govt would approach the issue, including whether to
allow a conscience vote, which commentators believe is necessary for
legislation to pass. On May 27, Opposition Leader Bill Shorten said he will on
Monday June 1 introduce a marriage equality private members bill.
This is despite the Greens Marriage Equality Amendment Bill
2013 and Lib Dem Senator David Leyonhjelm's Freedom to Marry Bill(DA
25/07/14) being on the Parliamentary books. Parliament
rejected Labor backbencher Stephen Jones' Marriage Amendment Bill
2012 in September that year (DA
1/03/12). Abbott has been opposed to same sex marriage (DA
5/09/13) and his govt blocked the ACT's attempts to
introduce its own legislation (DA
21/10/13, 31/10/13).
Given the parliamentary timetable, if the party room does not consider the
issue in the next few weeks a bill could not be considered before Parlt's
Spring sitting dates. However, pressure continues to build with on pressday
53 Australian companies putting their names to a full-page ad
in The Australian
supporting marriage equality.
[3]
The meaning of discrimination under the Fair Work
Act's adverse action laws is narrower than under anti-discrimination laws,
the Federal Court has held. Justice Melissa Perry partly allowed
RailPro's appeal of Judge Denys Simpson's 2013 decision that found the
employer had taken adverse action against train driver Colin Flavel when it
fired him. Flavel had refused to take the controls of a train as part of a
competency test six weeks after he had been involved in a train collision.
Justice Perry found Flavel's symptoms of stress
were not enough to show he had been fired because of his mental
illness. Judge Simpson had found Flavel had told RailPro he would be
violently ill if he drove the train and that this was because of his
subsequently diagnosed post-traumatic stress disorder arising from the
collision. The judge had found RailPro dismissed Flavel because he had a
disability under the Fair Work Act's (FW Act) s351and
had exercised his workplace right to protect his own and others' safety
under the SA Occupational Health and Safety Act as per s340(1)(a).
Not all
discrimination law requirements apply under FW legislation
However, Justice Perry held Judge
Simpson had wrongly interpreted s351(1) in finding it had been breached
because the dismissal contravened the Disability Discrimination Act (DD
Act). Section 351 requirements for discrimination were different from the
DD Act's "expanded" meaning of discrimination, she said. While
s351 did not require a comparator as the DD Act's required, discrimination
under s351 could not be "a perceived, as opposed to actual, disability
or a disability of an associate". Further, a DD Act breach occurred if
the act was done for a prescribed reason, as opposed to it being a
"substantial and operative" reason under the FW Act.
In this context, the "carve out" in
s351(2) – saying s351(1) did not apply if the conduct was "not
unlawful under any anti-discrimination
law" – simply "avoids a result whereby the FW Act
imposed more onerous obligations upon an employer than those already
imposed upon her or him under general anti-discrimination
laws", Justice Perry said. "In effect s351 proscribes a
'subset' of that which is proscribed under the DDAct," Justice
Perry said. However, the converse was not true. Conduct that breached
the DDAct may not
breach 351(1) "contrary to the assumption apparently made by [Judge Simpson]".
Employer only
aware of worker's 'attack on the nerves'
Despite the difference between
statutes, Justice Perry held "disability" under s351 still
"cannot be limited" to the "underlying diagnosed medical or
physiological or psychological condition" and could refer to the
symptoms of that condition. "Unless the term included symptoms or
manifestations of the disability, the Act may well fail to
achieve its object." Therefore, that Flavel's condition was not
diagnosed before his dismissal was "notnecessarily an impediment"
to finding he was dismissed because of his disability.
However, Justice Perry said courts still needed to give
"particularly close consideration" to an employer's reasons for
adverse action "where it may not be apparent that the symptom
or manifestation is in fact a symptom or manifestation of a
disability".
In Flavel's case, Justice Perry held the
evidence of his symptoms went "no higher than to suggest that the
decision-makers were aware that Flavel had had an 'attack of nerves'".
She agreed with RailPro that disability "does not include ordinary
human responses to particular circumstances, such as nervousness".
"[K]nowledge by a lay person that a person feels nauseous and has
other feelings typically related to nervousness in a stressful situation
like an assessment is likely to fall short of amounting to knowledge of a
disability."
Judge Simpson's finding to the contrary that
RailPro's decision-makers were aware of Flavel's condition was
"glaringly improbable", she said. The judge's findings Flavel was
"putting on a brave face" after the train crash and RailPro
managers were not "qualified" to give opinions about his
psychological state were inconsistent with a finding they were
"aware" of his state. A letter from Flavel's wife to RailPro
showing he was under stress and grief was not enough to show the
decision-makers were aware of the extent of his disability. For Judge
Simpson to infer that "[u]ndoubtedly" the letter warned RailPro
of Flavel's fragile mental state "assumes a capacity to differentiate
between stress and a disability", Justice Perry said.
Dismissal over
OHS right not disproven
But while Justice Perry set aside Judge
Simpson's s351 finding, she upheld his separate finding that Flavel was
dismissed because he exercised his workplace right to protect himself and
others as per the OHS Act. Justice Perry upheld RailPro's argument
that Judge Simpson was incorrect to find Flavel's competency was not a
reason in the dismissal. But she said that was not sufficient to overturn
the adverse action finding as RailPro had not shown that Flavel's exercise
of his right under the OHS Act was not one
of the dismissal's operative reasons.
$25k award for
distress, hurt and humiliation was 'high'
Justice Perry (above)
remitted the question of compensation and penalty to Judge Simpson.
However, she said Judge Simpson erred by failing to discount Flavel's
workers' compensation payments and should have taken the competency issue
into account when deciding on $95k in damages. She said his order for $25k
for distress, hurt and humiliation was "high" and insufficiently
justified and took into account the erroneous finding that the
decision-makers were aware of Flavel's mental illness. However, a $7,500
award for distress was warranted as the dismissal meeting occurred without
prior notice, was held immediately on Flavel's return from the competency
test and did not "realistically" allow him to have a support
person.
(RailPro
Services Pty Ltd v Flavel [2015],FCA 504, 22/05/2015)
Academic to
invite 'reconsideration' of court approaches to discrim under FW Act
Melbourne Law school employment relations
Associate Professor Anna Chapman told Discrim
Alert associate news service Workforce
Daily the decision "provides a very strong statement"
about the distinction between anti-discrimination law relating to
disability and the FW Act's discrimination provisions. However, while there
had been other decisions about the connection between symptoms and the
disability, Chapman said it was still "uncertain" what degree of
manifestation of those symptoms was required. "That's always going to
be a difficult factual issue," she said. Unlike the test under
anti-discrimination law – which required no intention or consciousness –
the FW Act was "more subjective" and related to the reasons of
the decision-maker. "They need to have some knowledge," Chapman
said. Chapman was to speak on courts' methods for interpreting
discrimination in an industrial framework on press day at a Fair Work
workplace relations lecture at Melbourne Law School. She will argue there
has been "a turning away under the FW Act from earlier, broader
judicial approaches on the meaning of discrimination" and will invite
a "reconsideration of current judicial approaches".
[4]
The Federal Court has tripled a proposed penalty
for an employer who failed to provide its workforce a Fair Work Information
Statement during bargaining because the workers were mainly non-English
speaking. Fair Work Building and Construction (FWBC) and Foxville Projects
Group – which worked on the Park Hyatt and Gowings construction projects in
NSW – had been negotiating over underpayment and record-keeping breaches.
The pair had agreed total penalties of $115k were appropriate –
but Justice Geoffrey Flick increased them to $145k, largely due to
failure to provide workers the statement. For that breach, FWBC and
Foxville had agreed on only $5k out of a maximum $33k. Noting the
requirement to provide such a statement was "an important means to
ensure employees are informed of their rights", Justice Flick
ordered Foxville to pay $20k for it. "This may be seen as
assuming even greater importance where the workforce consists of many
persons not fluent in English," he said. "A failure to be made
aware of one's rights places an almost insurmountable obstacle in the path
of those who may need to exercise those
rights." Justice Flick found Foxville had engaged labour hire
companies with issued capital of $10 and $2 respectively to employ its
workers as part of a strategy to keep the Construction Forestry Mining
Energy Union (CFMEU) "at bay" after it entered into an enterprise
agreement with the construction union in 2011. The judge said even if the
breaches were not deliberate Foxville had "adopted a fairly cavalier
attitude to its workplace obligations". (Director, Fair Work Building Industry Inspectorate v
Foxville Projects Group Pty Ltd [2015], FCA 492,
21/05/2015)
[5]
The Tasmanian Government is legislating to exempt
faith-based schools from provisions of the Anti-Discrimination Act. The
Anti-Discrimination Amendment Bill will allow faith-based schools to give
preference in their admissions to students who have religious beliefs,
affiliations or activities consistent with those of the school. It will not
allow discrimination on any other grounds. In a May 23 statement,
Attorney-General Vanessa Goodwin said it was "hardly a radical
change" and would bring Tas "into line with all other states and
territories". She noted schools could already apply for an exemption
from the Act but "this can be a cumbersome and uncertain
process". The Bill has passed the Lower House and will soon be before
the Legislative Council.
Meanwhile,
the Govt welcomed the Anti-Discrim Commissioner's report into expunging
historic criminal records for consensual homosexual sexual activity.
Goodwin said the Govt supported expunging convictions for various
historical offences since repealed in Tas. "Doing so will be a complex
legal and legislative process and we will carefully consider the report and
its recommendations," she said. The Govt will then "be in a position
to provide further clarity over the next steps in this process".
[6]
The Federal Government's Indigenous Procurement policy(DA
15/05/15) allocates targets for each department, based on
the number of contracts each has. Eg Education's 2015-16 target is four
based on it having on average 711 contracts a year; Employment's is seven
based on 1,474; the Attorney-General's 19 from 3,817; and Defence's is 70
from 14,005. The policy allows dept's to use a $ target rather than average
contract number, and has calculated that rate as $91,931 (GST inclusive).
"This is intended to give portfolios flexibility and enable contracts
to be managed efficiently and according to business need," it said.
[7]
The Financial Services Institute of Australia
(Finsia) is running a 'Bring our daughters to work' day program so "industry
professionals can share with their daughters what it is that they do during
their work day and promote careers in banking and finance". As part of
the program participants will be encouraged to run different diversity
initiatives on the day based around the age of the children. The initiative
is in its third year, Finsia Non-executive Director Victoria Weekes said
that more and more organisations are choosing to take part in the day.
"We've got three of the four major banks involved, and we've got major
investment banks involved," Weekes said. "So we'll encourage as
many organisations as possible to get involved and then help them with how
to structure the day."
[8]
2015 Australian of the Year Rosie Batty has joined
with the Aust Council of Trade Unions to call for more than four million
workers covered by an award to gain access to ten days domestic violence
(DV) leave. The DV leave would be paid for permanent staff and unpaid for
casuals, the ACTU said. It would allow victims to attend court appearances
and related appointments, seek legal advice and make relocation
arrangements. It helps an employee experiencing family violence to keep
their job and maintain financial independence, which is critical for women
trying to escape a violent relationship. Batty's 11-year old son Luke was
killed by his father last year. She said the year before Luke died had been
a "year from hell" as she spent time giving statements to police
and attending court. This week, ACTU president Ged Kearney told the peak
body's congress DV "is a whole of society issue and that includes the
workplace and employers". More than 1.6 million employees have access
to paid DV leave in union negotiated workplace agreements, the ACTU said.
National Children's Commissioner Megan Mitchell
held an expert roundtable in Melbourne on May 19, as part of a
national consultation to examine the impact of domestic and family violence
on children. "This roundtable seeks to better understand the
experiences of children exposed to such violence." Findings of the
roundtable and national consultation will be the subject of the Children's
Rights Report 2015.
Meanwhile, Diversity Council of Australia's next Diversity Leadership Program
will examine how domestic violence impacts the workplace. Its panel
includes: CEO of White Ribbon Australia
Libby Davies; Telstra GM of Diversity and Inclusion Troy Roderick; and a
National Australia Bank rep will discuss its Domestic Violence Support Policy.
It will take place from 2 to -4pm on June 15, 2015, at Gilbert +
Tobin, L37, 2 Park Street, Sydney. Details here.
[9]
·
Seminar: CEDA's Women in
Leadership Series: Professor
Gillian Triggs on her role as of the Australian Human Rights Cmn
president to lead the promotion and protection of human rights in
Australia, Adelaide June 4. Details here.
·
Seminar: Striking the
balance: freedom of religion and equality under the EO Act. Discussion on a
Vic Supreme Court case about a Christian youth camp's refusal to take a
booking from a community health organisation running suicide prevention
workshops for same sex attracted young people. Spkrs: Justice Debbie
Mortimer, barrister Kate Eastman, HRLC director of advocacy Anna
Brown. June 4, 6pm–7.30pm, Vic EO & HR Cmn, L3, 204 Lygon
Street, Carlton, VIC, RSVP: May 29 to communications@veohrc.vic.gov.au.
Details here.
[10]
Journalists:Eva
Wiland, David Marin-Guzman. Managing
Editor: Peter Schwab. Ph: (02) 8587 7681; peter.schwab@thomsonreuters.com.
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