Andrews v Australian Rail Tram & Bus Industry Union

RELEVANT LEGISLATION

1. Allegations of discrimination in sections 11(2)(a), 28(2)(a) and 49I(2)(a) of the AD Act, all look at "any benefit provided by the industrial organisation", and whether an industrial organisation has discriminated against a member by denying, or limiting access to the benefit. "Benefit" is not defined and should be given its usual ordinary meaning "anything that is for the good of a person or thing" - (Macquarie dictionary - online edition)
2. Section 4 of the AD Act defines "services" to include-- (a) services relating to banking, insurance and the provision of grants, loans, credit or finance, (b) services relating to entertainment, recreation or refreshment, (c) services relating to transport or travel, (d) services of any profession or trade, (e) services provided by a council or public authority, (f) services consisting of access to, and the use of any facilities in, any place or vehicle that the public or a section of the public is entitled or allowed to enter or use, for payment or not.
3. The notion of "services" in "goods or services" should be given its ordinary meaning (IW v City of Perth [1997] HCA 30; (1997) 191 CLR 1 at [23]).
4. The settled position in matters such as the applicant's Complaint, is that 'services' must be identified with 'sufficient precision to relate them to the facts of the case and the issues which arise for determination' citing Waters v Public Transport Corporation [1991] HCA 49; (1991) 173 CLR 349 at [405]-[407].
5. s 7(1) of the AD Act relevantly provides: "7 What constitutes discrimination on the ground of race (1) A person (the perpetrator) discriminates against another person (the aggrieved person) on the ground of race if, on the ground of the aggrieved person's race …, the perpetrator: (a) treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person of a different race …, or … (c) 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. (2) For the purposes of subsection (1) (a) and (b), something is done on the ground of a person's race if it is done on the ground of the person's race, a characteristic that appertains generally to persons of that race or a characteristic that is generally imputed to persons of that race."
6. Section 11(2) of the AD Act relevantly provides: 11 INDUSTRIAL ORGANISATIONS … (2) It is unlawful for an industrial organisation to discriminate against a person who is a member of the industrial organisation on the ground of race-- (a) by denying the person access, or limiting the person's access, to any benefit provided by the industrial organisation, (b) by depriving the person of membership or varying the terms of the person's membership, or (c) by subjecting the person to any other detriment.
7. Section 19 of the AD Act relevantly provides: "19 Provision of goods and services It is unlawful for a person who provides (whether or not for payment) goods or services to discriminate against another person on the ground of race: (a) by refusing to provide the person with those goods or services, or (b) in the terms on which the other person is provided with those goods or services."
8. Section 24(1)(a) of the AD Act relevantly provides: 24 WHAT CONSTITUTES DISCRIMINATION ON THE GROUND OF SEX (1) A person ("the perpetrator" ) discriminates against another person ( "the aggrieved person" ) on the ground of sex if the perpetrator-- (a) on the ground of the aggrieved person's sex or the sex of a relative or associate of the aggrieved person, treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person of the opposite sex or who does not have such a relative or associate of that sex, or … (1A) For the purposes of subsection (1) (a), something is done on the ground of a person's sex if it is done on the ground of the person's sex, a characteristic that appertains generally to persons of that sex or a characteristic that is generally imputed to persons of that sex.
9. Section 28(2) of the AD Act relevantly provides: 28 INDUSTRIAL ORGANISATIONS … (2) It is unlawful for an industrial organisation to discriminate against a person who is a member of the industrial organisation on the ground of sex-- (a) by denying the person access, or limiting the person's access, to any benefit provided by the industrial organisation, (b) by depriving the person of membership or varying the terms of the person's membership, or (c) by subjecting the person to any other detriment.
10. Section 33 of the AD Act relevantly provides: 33 PROVISION OF GOODS AND SERVICES (1) It is unlawful for a person who provides, for payment or not, goods or services to discriminate against another person on the ground of sex-- (a) by refusing to provide the person with those goods or services, or (b) in the terms on which he or she provides the person with those goods or services. (2) Where a skill is commonly exercised in a different way in relation to men and women, a person does not contravene subsection (1) by exercising the skill in relation to men only, or women only, in accordance with the person's normal practice.
11. Section 49B(1)(b) of the AD Act relevantly provides: 49B WHAT CONSTITUTES DISCRIMINATION ON THE GROUND OF DISABILITY (1) A person ( "the perpetrator" ) discriminates against another person ( "the aggrieved person" ) on the ground of disability if the perpetrator-- (a) on the ground of the aggrieved person's disability or the disability of a relative or associate of the aggrieved person, treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person who does not have that disability or who does not have such a relative or associate who has that disability, or (b) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons who do not have that disability, or who do not have a relative or associate who has that disability, 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. (2) For the purposes of subsection (1) (a), something is done on the ground of a person's disability if it is done on the ground of the person's disability, a characteristic that appertains generally to persons who have that disability or a characteristic that is generally imputed to persons who have that disability. …
12. Section 49I (2) and (3) of the AD Act relevantly provides: 49I INDUSTRIAL ORGANISATIONS … (2) It is unlawful for an industrial organisation to discriminate against a person who is a member of the industrial organisation on the ground of disability-- (a) by denying him or her access, or limiting his or her access, to any benefit provided by the industrial organisation, or (b) by depriving him or her of membership or varying the terms of his or her membership, or (c) by subjecting him or her to any other detriment. (3) Nothing in subsection (2) (a) renders it unlawful to discriminate against a person on the ground of disability where, because of the person's disability, the person requires the benefit to be provided in a special manner and the benefit cannot be provided in that manner by the industrial organisation without unjustifiable hardship to it.
13. Section 49M of the AD Act relevantly provides: 49M PROVISION OF GOODS AND SERVICES (1) It is unlawful for a person who provides, for payment or not, goods or services to discriminate against a person on the ground of disability-- (a) by refusing to provide the person with those goods or services, or (b) in the terms on which he or she provides the person with those goods or services. (2) Nothing in this section renders it unlawful to discriminate against a person on the ground of the person's disability if the provision of the goods or services would impose unjustifiable hardship on the person who provides the goods or services.
14. The applicant also alleges breaches of section 52 of the AD Act which provides: 52 AIDING AND ABETTING ETC It is unlawful for a person to cause, instruct, induce, aid or permit another person to do an act that is unlawful by reason of a provision of this Act.

EVIDENCE

1. The applicant relied upon the following documents: 1. applicant's Points of Claim dated 27 January 2020 (the POC) (Exhibit A1); 2. statement by the applicant, dated 3 February 2020 - with 19 Annexures (Exhibit A2); and 3. an email from the applicant to NCAT dated 8 April 2020, purporting to be a response to the statements of Mr Toby Warnes and Ms Lizanne Bennett (the respondent's witnesses) (Exhibit A3).
2. The respondent's documents included: 1. the Points of Defence dated 11 March 2020 (POD) (Exhibit R1); 2. statement of Mr Toby Warnes, Director of Organising of the respondent, dated 11 March 2020 (Exhibit R2); 3. statement by Ms Lizanne Bennett, former Lead Organiser of the respondent, dated 11 March 2020 (Exhibit R3).
3. The ADB bundle was also admitted marked 'Exhibit A4'.
4. The applicant was self-represented. The respondent was represented by Counsel. The respondent's witnesses were cross-examined.

THE ISSUES

1. The applicant alleges direct discrimination on the grounds of race, gender and disability. Allegations are also made against an employee of the respondent in aiding and abetting in the alleged discrimination against the applicant.
2. The applicant does not distinguish whether each of the three grounds are alleged together, or in the alternative.
3. The applicant alleges that the direct discrimination occurred by her being a member of an industrial organisation (POC at [18], [20] and [22]), she was 'denied and/or had limited access to benefits provided by 'the respondent'' and/or 'suffered detriment from the manner and method of support provided or not provided by the respondent subjecting her to detriment'; and 'additionally or in the alternative'.
4. The applicant alleges that the provision of goods and services (POC at [19], [21], [23]) were withheld, is that the respondent 'refused to provide the applicant with services to assist with her workplace issues' and/or 'she suffered detriment as the terms of the provision of the service were fundamentally different from services provided to other financial members'.
5. We sought clarification from the applicant at the beginning of the hearing as to whether the relevant benefit/service was the same thing. In that regard whether it was styled as a benefit of membership or a service in the alternative, and relating to the dispute settlement procedure referred to in POC [15] and [16].
6. The 'benefit' or 'service' provided by the respondent to its members that was allegedly denied to the applicant (or to which her access was limited) was the same, which included: 1. 'support' (POC [16]) relating to legal advice and representation dealing with a dispute settlement process under the 2014 Enterprise Agreement (stated at POC [15]); and 2. that she was not 'properly supported' (POC at [16]) by the respondent taking the 'final step' in the dispute settlement process, being to refer the dispute to 'Fair Work Australia', which she referred to be the Fair Work Commission (the FWC) (POC at [16(l) and (n)]).
7. The applicant alleges that the person of the respondent who made the decision to deny her a benefit, or to deny her the service for discriminatory reasons, was the respondent's secretary, Mr Claassens; (POC [15], [16(l), (n)]). Particularly, the applicant alleges the 'support' was not received 'due to the direct absence of approval from Mr Claassens for the respondent's organisers to 'notify a dispute to the FWC'; POC [16(l) and (n)].
8. The respondent submits that the applicant was provided significant support in dealing with the dispute settlement process and it denies that she was subjected to unlawful discrimination as alleged or at all.
9. It is not in dispute that the applicant was not referred to an external lawyer to obtain legal advice and/or representation in relation to the dispute settlement process. The respondent submits that there is no basis in fact or law for the Tribunal to make a finding that this amounted to a denial of support or proper support, nor is there any basis in evidence for a conclusion that by not having referred the applicant to external lawyers to obtain legal advice and/or representation that the applicant was subjected to unlawful discrimination.

Is the complaint entirely misconceived?

1. The respondent in its written submissions contends that the applicant's complaint is entirely misconceived.
2. It is not in contest that the respondent is undoubtedly an corporation constituted under the Industrial Relations Act 1966 (NSW). Mr Claassens was the Secretary of the respondent having primary responsibility for the day-to-day operation of the union. We accept Mr Warnes' unchallenged evidence that the Secretary does not make decisions and give directions on the handling of the many matters that the respondents delegates, organisers or industrial officers deal with on a day to day basis. The applicant's contention that Mr Claassens made a direct decision to deny the respondent's organisers, Mr Fozzard and Ms Bennett, approval to notify the applicant's dispute to the Fair Work Commission as part of the dispute settlement process is, in our view, entirely misconceived.
3. The applicant's contention arises from an erroneous assumption based on the language used in the respondents rule 54, defining the role of the secretary of the respondent and rule 56 defining the role of an organiser. Miss Bennett in her evidence confirmed that she had considerable autonomy as to how she undertook her duties. This autonomy included an authority to make most decisions without seeking approval, including lodging disputes in the Fair Work Commission, and independent of the Secretary, Mr Claassens. We accept Ms Bennett's evidence in this regard and reject the submissions of the applicant. The applicant has failed to adduce any evidence in support of her submission.
4. Ms Bennett's evidence is also accepted in so far as it was her decision alone not to take the dispute to the Fair Work Commission. Her decision was not made following a decision or directive from Mr Claassens. This evidence was not challenged. Miss Bennett provided the following reasons as to why she did not follow through to that next step: "I did not consider taking dispute proceedings in the Fair Work Commission under the New South Wales trains enterprise agreement because in my experience the outcome of a one- day suspension and a warning was a good result. This was my decision which I discussed with Ria. I also note that Ria did not mention lodging a dispute either. My decision in this connection had nothing to do with Ria's gender, race or any disability she may have had".
5. We do not accept the applicant's allegation that Mr Claassens did not approval authority to initiate proceedings in the Fair Work Commission. There is no evidence before us that he was asked to do so, nor is there any evidence of a directive by him to Ms Bennett or anyone else. Further, Ms Bennett gave unchallenged evidence to the effect of: "Alex Claassens never instructed me to cease assisting Ria or to limit the assistance I was giving her". We accept her evidence in this regard.
6. We accept the respondent's submission that the Complaint does not have any tenable basis in fact or law, it is entirely misconceived and in our view lacking in substance. Therefore it follows the Complaint must be dismissed.
7. If we are wrong in this finding, we have dealt with the complaints of discrimination below.

Our findings as to the complaints of discrimination

1. The applicant carries the onus of proof in these proceedings (see, for example, Wright v Commissioner of Police [2014] NSWCATAP 67 at [24]).
2. It is essential that the applicant pleads with particularity and then proves any direct discrimination which is alleged (sections 7(1)(a), 24(1)(a) and 49B(1)(b) of the AD Act) - see Waters v Public Transport Corporation [1991 HCA 49; (1991) 173 CLR 349. In our view, the applicant has failed to do so.

Race, Sex or Disability Discrimination in the Provision of Goods and Services

1. In order to establish a breach of sections 19, 33 and 49M of the AD Act, the applicant has to establish that: 1. the respondent was a person who provided services; 2. the respondent refused to provide the applicant with services or provided services to the applicant on unfavourable terms; and 3. in doing so, the respondent discriminated against the applicant on the ground of race, or sex, or disability (either directly or indirectly).
2. Similarly, sections 11(2(a), 28(2)(a) and 49I(2)(a) of the AD Act all look at 'any benefit provided by the industrial organisation', and whether an industrial organisation has discriminated against a member by denying, or limiting access to the benefits. Benefit is not defined, and so ought to be given its ordinary meaning is set out above in paragraph 28.
3. During the course of the proceedings the applicant sought to clarify the benefit in which she alleges she was entitled to receive as being; 1. "support" (POC [16]) In relation to the dispute settlement process concerning the 2014 enterprise agreement. 2. (POC [16]) That the applicant was not fully supported by the respondent taking a final step in the dispute settlement process and referring the dispute to the Fair Work Commission.
4. The evidence does not support the applicant's claim that the respondent refused, or failed to provide a service in a particular way. Indeed, the evidence supports a finding that the respondent provided considerable support and services to the applicant which is set out above. We accept Ms Bennett's evidence as to why the alleged "final step" was not preceded with by the respondent. In accepting Ms Bennett's evidence in this regard, we find that there is no basis upon which the Tribunal can find that the applicant was in any way discriminated against or treated less favourably on the ground of race, sex or disability.
5. The applicant has failed to plead and indeed prove, any proper actual or hypothetical "comparator" (see Purvis v New South Wales (Department of Education and Training) (2003) 217 CLR 92). A such, she has failed to establish that she was the subject of "less favourable treatment" in relation to the alleged benefit/service provided by the respondent.
6. Further, we are not satisfied that the applicant was denied the benefit/service of support in relation to the dispute settlement process. The evidence establishes that the respondent services its membership by assisting them in relation to workplace issues. We accept Mr Warnes' evidence that not all disputes or matters are suitable for referral to the Fair Work Commission. It is incumbent upon the organiser to make an assessment of the merits of the dispute before proceeding to make such an application. We accept that Ms Bennett made a merits assessment and decided not to proceed with taking the matter to the Fair Work Commission albeit that she was not requested to do so by the applicant.
7. The evidence of both the applicant and the respondent's witnesses in our view demonstrates that the applicant was given extensive assistance by the respondent in relation to the dispute settlement process. Indeed the applicant in her emails to the respondent (paragraphs 12 and 19 above) sets out the glowing views she held of Mr Fozzard and Ms Bennett at various stages of that process.
8. The applicant included in her Complaint an further allegation of being treated differently, by the respondent not referring her to an external lawyer, at the expense of the respondent, for further assistance in relation to the dispute. In this regard we find that the evidence demonstrates there was no obligation for the respondent to do so. In any event the evidence of Ms Bennett and Mr Fozzard, which we accept, is that the dispute settlement procedure had been resolved. Therefore there was no further dispute to take to the Fair Work Commission which would have required, even if the applicant had an entitlement to be referred to an external law firm.
9. Regarding the applicant's allegation of an obligation for the respondent to refer her to an external legal advisor, the applicant seeks to rely upon an advertisement in the respondent's internal newsletter by Slater and Gordon lawyers. She alleged that this advertisement in some way created an entitlement to advice for representation by external lawyers. We are not satisfied that the advertisement was anything more than a paid advertisement inviting members of the respondent, including the applicant, to seek advice from that firm of solicitors concerning workplace disputes. We reject the applicant's submission that this advertisement in created an entitlement for members of the respondent to be referred to external legal advisors with the fees to be paid by the respondent.

Lack of Comparator, Less Favourable Treatment

1. Should we have found that there was some basis for a conclusion that the service/benefit subject of the Complaint was not provided, which we have not, we find that the applicant's claim must still fail on the basis that she has not demonstrated by the use of a comparator, that she was the subject of "less favourable treatment", or that such "less favourable treatment" was causally connected to a protected attribute.
2. The applicant in her written submissions refers to two white Australian males who are not otherwise identified as belonging to a particular race.
3. It is obvious that the two persons referred to are men.
4. The is no evidence indicating whether either of these two men had a disability. The applicant's use of the comparators fails to identify two critical parts of the comparator in each of the race and disability discrimination claims.
5. In respect of the use of the two comparators to identify that the applicant was treated differently on the basis of gender, we find that there is no foundation, nor evidence, for a conclusion that the applicant was subject to less favourable treatment because of her gender.

Claim of aiding and abetting

1. The applicant alleges that Ms Bennett aided and abetted New South Wales Trains unlawful discrimination against her. The applicant's POC lack any specificity in relation to the act of New South Wales Trains that is said to be unlawful by reference to a provision of the AD Act. There is no evidence that Ms Bennett caused, instructed, induced, aided or permitted New South Wales Trains to take any action rendered unlawful by the AD Act against the applicant. Consequently, the applicant's claim in this regard must fail.

Relief

1. Given our finding that the applicant's complaint be dismissed, her claim for relief also fails.

Conclusion and orders

1. For the reasons given above, the applicant has not discharged her onus of establishing that the respondent discriminated against her on the grounds of race, sex or disability. Each of her complaints are dismissed.
2. The matter is to be listed for further directions on costs.

Orders 1. The name of the Respondent is amended to "Australian Rail Tram & Bus Industry Union (NSW Branch)" 2. The application is dismissed. 3. The registry will list the matter for further directions to determine the respondents application for costs.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 21 December 2020