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Sent:                               Friday, 29 May 2015 3:59 PM

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Subject:                          Discrim Alert#471: Court awards $659k for sexual assault during work trip; Same-sex marriage vote; Stress case shows adverse action-disability discrim differences; more


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Thomson Reuters Australia

Issue 471 , Friday 29 May 2015

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In this issue


Court awards $659k for sexual assault during work trip



Same-sex marriage vote coming


Stress symptoms not show discrim in adverse action law



Court quadruples penalty as victims were non-English speaking


Tas winds back EEO's religious bias



Govt sets departmental Indigenous procurement targets


Bring daughters to work



Unions ramp up DV leave pressure





Editorial Team



Court awards $659k for sexual assault during work trip

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)


Same-sex marriage vote coming

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.


Stress symptoms not show discrim in adverse action law

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".


Court quadruples penalty as victims were non-English speaking

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)


Tas winds back EEO's religious bias

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".


Govt sets departmental Indigenous procurement targets

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.


Bring daughters to work

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."


Unions ramp up DV leave pressure

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.



·         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 Details here.


Editorial Team

Journalists:Eva Wiland, David Marin-Guzman. Managing Editor: Peter Schwab. Ph: (02) 8587 7681;




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