Equal Opportunity Act 2010 ss 8, 10, 18; Victorian Civil and Administrative Tribunal Act 1998 s 148.

Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32; (2012) 248 CLR 500; General Motors-Holden's Pty Ltd v Bowling (1976) 51 ALJR 235, distinguished.

Ms L De Ferrari SC with Mr S Burt and Ms N Stojanova

1. In January 2009, the respondent, Christina Tsikos, was employed by the applicant, Austin Health, in a clinical role as an orthotist/prosthetist. She was allocated the grade specified in the relevant enterprise agreement[1] and paid accordingly.
2. On 12 July 2010, when she was 31 years old, Ms Tsikos was promoted to the role of manager of the Orthotic/Prosthetics Department ('Department'). She was given a higher classification under the relevant enterprise agreement and paid in accordance with the rates specified therein.
3. Throughout her employment with Austin Health, Ms Tsikos was paid at, but not above, the rate provided in the relevant industrial agreement.
4. In her role as manager of the Department, Ms Tsikos managed 14 employees, 10 of whom were male. Of the 10 male employees, six were paid above the rates specified in the enterprise agreement ('above-agreement remuneration') and all were classified at a level higher than their role actually attracted.
5. One of the employees managed by Ms Tsikos was Sam Spalding, who was recruited in 2009. Mr Spalding, although he reported to Ms Tsikos, was paid significantly more than Ms Tsikos and at a rate that was well above the rate specified in the enterprise agreement. Mr Spalding was paid above-agreement remuneration because he was originally employed in a special revenue raising role. That role had long since been discontinued.
6. Between 2011 and 2014, Ms Tsikos asked to negotiate her remuneration on no less than six occasions. She raised her desire to discuss her remuneration in meetings with her direct line manager, Jo-Anne Moorfoot, and with Ms Moorfoot's manager, Debbie Munro. On each occasion, Ms Tsikos was rebuffed. She alleges that her requests to be given the opportunity to negotiate above-agreement remuneration were repeatedly 'blocked', a proposition with which Ms Moorcroft agreed.
7. On or about 26 June 2018, Ms Tsikos wrote to Austin Health summarising her past requests to negotiate above-agreement remuneration. She observed that some of the men she managed were paid above-agreement remuneration and that Mr Spalding was being paid $41,000 per annum more than her, despite the fact that he reported to her and was classified at a lower grade under the enterprise agreement.
8. In response, by letter dated 17 August 2018, Austin Health stated that two of the men who worked for Ms Tsikos were paid above-agreement remuneration because they had been 'transitioned to a more appropriate' enterprise agreement. The letter also stated that Mr Spalding's above-agreement remuneration was 'recognised as being an anomaly' and that Austin Health was 'continuing to pursue what can be done with respect to this situation'. Nothing was said about Ms Tsikos' request for an opportunity to negotiate her remuneration.
9. As a result, on 8 November 2018, Ms Tsikos commenced a proceeding in the Victorian Civil and Administration Tribunal ('Tribunal') under the Equal Opportunity Act 2010 ('EO Act') claiming that she had been directly discriminated against in her employment on the basis of her age and sex, in that she had been denied the opportunity to negotiate and receive above-agreement remuneration.
10. The Tribunal dismissed Ms Tsikos' complaint. However, she successfully appealed the Tribunal's decision to the Trial Division of the Court under s 148 of the Victorian Civil and Administrative Tribunal Act 1998 ('VCAT Act'). The Court held, among other things, that the Tribunal had applied the wrong test for direct discrimination under s 8(1) of the EO Act. It made orders remitting Ms Tsikos' complaint to the Tribunal to be determined according to law.
11. Austin Health now seeks leave to appeal the decision of the primary judge.
12. For the reasons that follow, leave to appeal will be granted but the appeal will be dismissed.

1. The EO Act was enacted on 27 April 2010.[2] It repealed and replaced its predecessor Act, the Equal Opportunity Act 1995 ('1995 Act').[3] One of the purposes of the EO Act is expressed to be to 're-enact and extend the law relating to equal opportunity and protection against discrimination, sexual harassment and victimisation'.[4] The EO Act altered the test for discrimination, which had, under the 1995 Act, been based on establishing 'less favourable' treatment by reference to a comparator.[5] The test in the EO Act is based on 'unfavourable' treatment, which need not be established by reference to a comparator.
2. Section 3 sets out the objectives of the EO Act, which include 'to eliminate discrimination ... to the greatest possible extent' and 'to encourage the identification and elimination of systemic causes of discrimination' while promoting the right to equality and 'the progressive realisation of equality, as far as reasonably practicable'.
3. Discrimination has the meaning given in pt 2 of the EO Act.[6] Relevantly, discrimination is defined by s 7(1)(a) to mean 'direct or indirect discrimination on the basis of an attribute'. The attributes on the basis of which discrimination is prohibited include age and sex.[7]
4. Direct discrimination is defined by s 8 in the following terms:

• (1) Direct discrimination occurs if a person treats, or proposes to treat, a person with an attribute unfavourably because of that attribute.

1. An employer advises an employee that she will not be trained to work on new machinery because she is too old to learn new skills. The employer has discriminated against the employee by denying her training in her employment on the basis of her age. 2. A real estate agent refuses an African man's application for a lease. The real estate agent tells the man that the landlord would prefer an Australian tenant. The real estate agent has discriminated against the man by denying him accommodation on the basis of his race.
   • (2) In determining whether a person directly discriminates it is irrelevant -

(a) whether or not that person is aware of the discrimination or considers the treatment to be unfavourable; > > (b) whether or not the attribute is the only or dominant reason for the treatment, provided that it is a substantial reason.

5. Section 10 provides that a person's motive is irrelevant in determining whether or not they discriminate.
6. Part 4 of the EO Act contains prohibitions on discrimination. Division 1 is entitled 'Discrimination in employment'. Relevantly, s 18 provides as follows:

An employer must not discriminate against an employee -

(a) by denying or limiting access by the employee to opportunities for

promotion, transfer or training or to any other benefits connected with

the employment; or

...

(d) by subjecting the employee to any other detriment.

1. As mentioned, the definition of direct discrimination in the EO Act differs from the definition in s 8 of the 1995 Act. The explanatory memorandum to the Equal Opportunity Bill 2010 ('Bill') explained the difference as follows:

Clause 8 differs from section 8 of the Equal Opportunity Act 1995 as it removes the requirement to prove that the treatment was less favourable than the person would treat someone without the attribute or with a different attribute, in the same or similar circumstances and replaces that 'comparator test' with a new test based on unfavourable treatment. The intention of the new definition is to overcome the unnecessary technicalities associated with identifying an appropriate comparator when assessing whether direct discrimination has occurred.

Subclause (2) is similar to section 8(2) of the Equal Opportunity Act 1995 but paragraph (a) refers to 'unfavourable treatment' instead of 'less favourable treatment' to reflect the removal of the 'comparator test'.[8]

1. The second reading speech recorded that the Bill introduced reforms intended to overcome limitations in the 1995 Act, including by simplifying the definition of discrimination and 'remov[ing] legal and technical barriers to the elimination of discrimination'.[9]
2. Furthermore, the second reading speech specifically identified pay inequity between men and women as an obstacle to eradicating discrimination:

Pay inequity between men and women; persistent indigenous disadvantage; facilities that are physically accessible to some but not to others - these inequalities endure because they are systemic, rather than isolated; because they cannot be redressed by an individual complaint. As a result, discrimination can disadvantage entire groups in a variety of ways.

Recent ANU research cites employment as one such area. According to the research, 21st century employers are still more likely to grant interviews to candidates with Anglo-Celtic names, on otherwise identical job applications in a supposedly open field. Further, a 2004 report of the Productivity Commission found that only 53.2 per cent of people with disabilities were in work compared to 80.6 per cent of those without a disability.

If such basic forms of discrimination are still entrenched, then we need to acknowledge that some opportunities remain more equal than others - that Victorians are competing on uneven ground and that we need to level the playing field. We need a legal framework and commission that is properly equipped to tackle all forms of discrimination - individual or systemic - to dismantle it where it does exist, and nurture and encourage a future in which it does not.[10]

1. Part 8 of the EO Act provides for the resolution of disputes arising under the Act. Section 122 enables a person to make an application to the Tribunal in respect of an alleged contravention of pts 4, 6 or 7. Section 125 then confers power on the Tribunal to:

(a) find that a person has contravened a provision of pts 4, 6 or 7 and make orders that the person refrain from any further contravention, pay compensation to the applicant or do anything specified in the orders with a view to redressing any loss, damage or injury suffered by the applicant as a result of the contravention; or > > (b) find that a person has contravened a provision of pts 4, 6 or 7 but decline to take any further action; or > > (c) find that there has been no contravention and make an order dismissing all or part of the application.

1. By application dated 8 November 2018 and particulars of claim filed on 18 September 2019, Ms Tsikos commenced a proceeding in the Tribunal alleging that Austin Health had discriminated against her in the course of her employment because of her sex and age, contrary to ss 18(a) and (d) of the EO Act.
2. Ms Tsikos claimed that Austin Health had denied or limited her access to benefits connected with her employment, namely, the opportunity to negotiate her remuneration, receive above-agreement remuneration and receive payment at or above the remuneration paid to Mr Spalding. She claimed that Austin Health had subjected her to detriment by refusing to negotiate remuneration with her or pay her above-agreement remuneration and by paying her less than Mr Spalding.
3. Ms Tsikos claimed compensation, including ongoing loss of salary in employment and superannuation payments for the period during which she was paid less than Mr Spalding, as well as general damages for 'humiliation, loss of dignity and/or injury to feelings'. She also sought an order requiring Austin Health to stop refusing to negotiate above-agreement remuneration and/or to stop remunerating her at a lower level than other employees due to age or sex.
4. Austin Health denied that it had discriminated against Ms Tsikos because of her sex or age. It denied that Ms Tsikos was denied or limited access to the alleged benefits, or that it had subjected her to the alleged detriment.[11] In addition to its denials, Austin Health pleaded in relation to the age attribute that while it had 'listened to [Ms Tsikos'] requests for an increase in remuneration', it had determined not to make any increase. That determination was neither informed nor 'actuated' by, or because of, Ms Tsikos' age. In relation to the sex attribute, Austin Health pleaded further that 'it was neither obliged by law or otherwise compelled to pay [Ms Tsikos] above the rates of remuneration' contained in the relevant enterprise agreements.

1. In the Tribunal, Ms Tsikos filed two witness statements and gave oral evidence. She gave evidence about a number of occasions on which she had approached her managers requesting the opportunity to negotiate her salary:

(a) On 12 August 2011, Ms Tsikos raised the disparity between her salary and Mr Spalding's salary in an email to Ms Moorfoot. Ms Moorfoot responded that while it was necessary to ensure that Ms Tsikos was paid 'appropriately according to the award', any funds required to cover an increase in her salary would have to come from 'within your current budget' by reconfiguring staffing costs within the Department. This was followed by a meeting during which Ms Tsikos again inquired whether she would be paid at a higher level. Ms Moorfoot refused to engage in the conversation.[12] > > (b) Between 2011 and 2014, Ms Tsikos made three attempts to raise the issue of remuneration with Ms Moorfoot. Ms Moorfoot would respond with words to the effect that Ms Tsikos was 'a young manager' and 'still so green'.[13] > > (c) On 15 March 2012, Ms Tsikos sought an increase in salary for another female employee with similar experience to Mr Spalding. Ms Moorfoot did not grant the request on the ground that it might set a precedent that could not be supported and Mr Spalding's role and employment contract were unique.[14] > > (d) In around May 2014, there was a meeting between Ms Tsikos, Ms Moorfoot and Ms Munro. During the meeting, Ms Tsikos made a fifth attempt to negotiate above-agreement remuneration and conveyed her observations about pay parity within the Department, including the fact that the employees who received above-agreement remuneration were all male. Ms Moorfoot and Ms Munro declined to respond. Ms Moorfoot suggested that Ms Tsikos was 'motivated by money' and if that was the case, Ms Tsikos 'might wish to seek other employment'.[15]

2. These attempts culminated in a sixth and final attempt by Ms Tsikos to negotiate her remuneration with Austin Health. On 26 June 2018,[16] Ms Tsikos wrote to Austin Health in the following terms:

Remuneration and Classification concern.

As a committed, long term, engaged manager of the Orthotic and Prosthetic Department at Austin Health, I write to you as I would like to request the opportunity to engage in discussions regarding uplifting my classification and remuneration.

A precedent has already been set for above award salaries at Austin Health with examples specifically within the O&P department. These are based on higher education, experience, qualifications, outcomes and skill sets. Three employees within O&P have had the opportunity to discuss uplifting their classification and/or remuneration. The three individuals are:

This concern is not new. It has been a protracted process to get to this point with significant personal struggles with the conversations and responses received on behalf of Austin Health.

1. The letter then recounted the series of occasions on which Ms Tsikos had questioned Austin Health's management of her classification and remuneration. It concluded as follows:

As a result of these numerous, long running, multifaceted and compounding instances, I would like the opportunity to resolve this in a structured, transparent and expeditious manner.

I would like a written acknowledgement with next steps detailed on how we are going to progress this matter to resolution by Wednesday 11th July 2018. I would also like Austin Health to advise me on what measures can be put in place to address the past, current and future widening pay gap associated with my direct report Mr. Sam Spalding who will once again be performing my role during my upcoming planned leave. He is classified at a lower grade than me and has a difference in remuneration per annum of $41,000. As I embark on my next period of leave (June 29-Oct 29), I am once again reminded of the inequality in pay for performing the same role.

...

Thank you in advance for the opportunity to bring this to your attention. I look forward to reviewing your resolution proposal.

1. On 17 August 2018, Ms Tsikos received a letter in response from Brit Gordon, the Divisional Director of Allied Health, on behalf of Austin Health, which stated as follows:

In your letter you raise a number of points regarding both your pay and the pay of individuals in your team. On receipt of your letter, I requested Employee Relations review these points and provide me a response on the matters you have raised. Employee Relations have confirmed the following -

1. On commencement with Austin Health you were incorrectly graded,

however this error was rectified and the appropriate backpay was

provided when your grade was amended.

2. The change to your Grade title in September 2017 as a result of changes

to the new [enterprise agreement] which no longer included the

term/grade Chief. This change impacted all Health Professionals who

previously had a job grade with the term chief. I acknowledge that

communication may have been improved around this change,

particular[ly] in light of the fact that you were on leave when this

occurred.

3. The over award payments that Martin French and John Paras currently

receive are due to transitioning them to a more appropriate [enterprise

agreement] and grandfathering their salary. The decision to move these

staff was made by Employee Relations and the salaries for both staff

were unchanged in this process.

4. The salary of Sam Spalding is recognised as being an anomaly. I am

continuing to pursue what can be done with respect to this situation.

In response to the concerns you raised regarding your conversations with JoAnne Moorfoot, I am sincerely sorry that this was your experience but as you know, I am unable to comment on these conversations as I was not involved in them at the time.

1. Ms Gordon's letter did not contain any 'resolution proposal' or offer for Ms Tsikos to discuss her remuneration or her classification with Austin Health.

1. Ms Tsikos called expert evidence from Dr Jennifer Whelan, a social psychologist who specialises in 'intergroup social processes including conscious and unconscious bias, stereotyping, discrimination, prejudice, particularly in relation to organisational gender diversity and equity'.[17]
2. Dr Whelan prepared a statement dated 20 February 2020, which was based on peer-reviewed academic and industry research relevant to Ms Tsikos' claims that six men reporting to her were paid above-agreement remuneration and that numerous attempts by her to negotiate above-agreement remuneration for herself had been unsuccessful.
3. Dr Whelan introduced her findings against the following background:

The national gender pay gap in 2019 was 14% (WGEA 2019) and while like-for-like pay discrepancies (women being paid less than a man for equal work) are addressed by equal pay and anti-discrimination legislation, gender gaps in remuneration persist. Key reasons for this include:

• Women's over-representation in lower paid occupations.
• Women's over-representation in part-time employment/parental leave.
• Women's under-representation in senior (higher paid) roles.

However, like-for-like gaps are still also evident and more likely to arise in circumstances where all or part of a remuneration package are negotiable, or paid as bonuses for meeting or exceeding performance indicators, and where there is ambiguity around the classification or roles.

1. In relation to Ms Tsikos' circumstances, Dr Whelan wrote:

In this matter there appears to be two potential sources of potential bias - firstly in terms of classification, and secondly in terms of discretionary remuneration (for which there is no clear procedure or criteria, according to [Austin Health]):

• A number of male direct reports were paid higher than the Enterprise Agreement rate, where [Ms Tsikos] was paid at the Enterprise Agreement rate; and
• One male direct report was paid both higher than the Enterprise Agreement rate and higher than [Ms Tsikos], despite her being his manager.

While [Austin Health] states that roughly equal numbers of men and women are paid salaries above the agreement for their classification, a far greater proportion of employees overall are women. In effect this means that a greater proportion of employees who are paid more than the classification for their role are men. This dynamic is well-evidenced in research.

1. Dr Whelan then referred to research in relation to gender bias in perceptions of performance and value. According to Dr Whelan, research from both the United States of America and Australia shows gender pay gaps at the graduate recruitment level, and in other hiring and remuneration contexts where male and female candidates are equally qualified. In all contexts, men are more likely to be paid more than women with the same objective merit - men tend to be offered higher starting salaries and be awarded higher discretionary bonus payments than women with similar qualifications and performance ratings.
2. Dr Whelan identified two other well-documented effects that further contribute to gender bias in the workplace. The first was research indicating that men are more likely than women to be rated as higher performing in leadership roles, which Dr Whelan considered relevant to Austin Health's assessment of Ms Tsikos' performance as a manager as merely 'adequate'. The second was research showing that people are more likely to react negatively to those who do not fit gender stereotypical expectations. In other words, women who display traits or behaviours that are more stereotypically masculine may incur a backlash. This 'pushy penalty' can deter women in negotiation settings. Dr Whelan noted that when Ms Tsikos attempted to negotiate her remuneration she was accused of being 'motivated by money', a claim Dr Whelan considered was less likely to be levelled at a male employee.
3. Under the heading 'Gender Bias in Negotiation', Dr Whelan said:

A common claim in relation to the gender pay gap is that women don't negotiate as much, or as hard as men do. For example, Babcock shows that while over 50% of men negotiate salary offers, only 7% of women do. This has led to the defence that if women negotiated more, they would win the same outcomes - the issue isn't gender bias.

However, research on pay negotiations shows that firstly, backlash (see above) deters women from negotiating as hard as men; and that secondly, even when women do negotiate, they are less likely to win the same outcomes as men when they do, as evidenced by research that "when women ask as often as men, they just don't get" (Artz et al).

Bowles also found that when women negotiated for higher remuneration, they were more likely to be penalised for doing so, compared to men who negotiated. The penalties in question included that: women negotiators were rated as less competent, and less desirable as bosses, co-workers, or subordinates. That [Ms Tsikos] was accused of being motivated by money when she attempted to negotiate a reclassification (or above agreement remuneration) is aligned with these findings. In my opinion, the same accusation is less likely to have been made of a male peer, or indeed the male subordinate being paid above the enterprise bargaining [agreements] in the case of this matter.

1. Dr Whelan noted that most stereotype effects have been documented to occur both consciously and unconsciously. In Dr Whelan's view, 'stereotype effects such as those evidenced above can and do occur unintentionally and outside conscious awareness, even where decision-makers are well-intentioned and not overtly biased'.
2. Dr Whelan's conclusion was as follows:

Gender bias in work settings constitutes a large and robust body of research, and while not all effects hold across all contexts, the weight of research is such that, in my opinion, most of the effects are consistent and defensible. I obviously cannot say that they are proven in the specific case of [Ms Tsikos'] matter. However, I can say that in my opinion, [Ms Tsikos'] claims may be considered as examples of the research findings detailed in my statement in at least two respects; firstly that [Ms Tsikos] is paid less than a number of her male subordinates both in terms of her classification, and in terms of not being offered remuneration above the enterprise agreement rate. Secondly, in terms of [Austin Health's] reaction to [Ms Tsikos] initiating salary negotiation (that she is motivated by money and performing only adequately).

1. Cross-examination of Dr Whelan focused on the difficulty of disentangling unconscious and conscious thinking processes and their effects on everyday decision-making. Dr Whelan readily agreed that she could not comment on the nature or existence of any unconscious bias on the particular facts of this case. What she could say was that it is frequent, it happens and it is very well documented.

1. Austin Health called evidence from two employees, Ms Moorfoot and Ms Munro, about their reasons for declining to entertain Ms Tsikos' requests to negotiate her salary:

(a) Ms Moorfoot said she could not recall with any precision the events surrounding the first attempt. In relation to the second attempt, she said that her response to Ms Tsikos' email of 15 March 2012 did not relate to Ms Tsikos' sex or age.[18] > > (b) As to the third attempt, Ms Munro denied that she described Ms Tsikos as 'young'. While she had referred to Ms Tsikos as a 'new manager', she meant that Ms Tsikos had not been in the role long and '[t]here was no reason to lift her remuneration'. She said that Ms Tsikos did not at any stage 'present a case' justifying an above-agreement remuneration.[19] Ms Munro denied that any decision refusing to increase Ms Tsikos' remuneration was informed by Ms Tsikos' gender.[20] > > (c) In relation to the meeting held in around May 2014, Ms Munro understood that the purpose of the meeting was to discuss a proposed restructure of the Department and she felt 'blindsided' by Ms Tsikos' request for a pay rise. While Ms Munro accepted that she did not approach Ms Tsikos to discuss her request for a pay rise after the meeting, she said that she relied on Ms Tsikos to raise the issue with her. > > (d) More generally, Ms Moorfoot accepted that Ms Tsikos was 'blocked' from negotiating her salary between 2011 and 2014.

2. Ms Moorfoot and Ms Munro also gave evidence about the circumstances of the men in the Department who received above-agreement remuneration:

(a) While Ms Moorfoot was aware that some employees received above-agreement remuneration, her default position was that employees are paid in accordance with their classification.[21] She understood that each person's salary was based on their particular circumstances. Mr Spalding's salary was above-agreement because his role had a revenue raising component and it was necessary to deter him from moving to the private sector. However, Mr Spalding was an anomaly as his salary was so far above the rate prescribed for his classification and Ms Moorfoot considered it to be excessive in the setting of Austin Health.[22] > > (b) Ms Munro could not recall any discussion with Ms Tsikos in which she said that Mr Spalding or any other employee received above-agreement remuneration on the basis that he was a male. Mr Spalding had negotiated remuneration above his classification because his role had a revenue raising component.[23]

1. The Tribunal heard the application over three days in March 2020. On 9 December 2020, it made an order dismissing the application with accompanying reasons.
2. The Tribunal accepted the undisputed evidence that Ms Tsikos had been paid significantly less than Mr Spalding throughout her employment.[24] The Tribunal also accepted that Ms Tsikos and Mr Spalding had some equivalent qualifications and experience and, at times, had shared duties and roles. The Tribunal found that Mr Spalding was first appointed on a revenue raising basis and retained at the same level of remuneration when the requirement to raise revenue was no longer imposed. Mr Spalding received remuneration in excess of the enterprise agreement for his classification. The Tribunal observed that it was not its task to determine whether Ms Tsikos should be paid above the enterprise agreement to match Mr Spalding. Rather, its task was to determine whether Ms Tsikos was denied access to the opportunity to negotiate this benefit for reasons prohibited by the EO Act.[25]
3. The Tribunal also accepted the evidence that there were no less than four employees in the Department who received above-agreement remuneration or who were classified at a level above the appropriate level in the enterprise agreement.[26]
4. The Tribunal noted that in order to succeed in her claim, Ms Tsikos had to satisfy it that she had received 'unfavourable' treatment and that to do so, she relied on what she characterised as Mr Spalding's favourable treatment.[27] The Tribunal then said:

To claim that she was unfavourably denied the opportunity to negotiate her salary, [Ms Tsikos] might be expected to show that Mr Spalding or others in her Department had the opportunity to negotiate salaries above the [enterprise agreement].

[Ms Tsikos] provided evidence of only one employee who negotiated a salary higher than the [enterprise agreement] - Mr Young. Mr Young was recruited by Austin Health. He resigned before his salary increase was implemented.[28]

Therefore, it has been established that Mr Spalding has a salary higher than [Ms Tsikos], but there is insufficient evidence to demonstrate that he has had an opportunity to negotiate it or its retention. The consequence is that [Ms Tsikos'] claim that she has been denied or limited in her ability to negotiate her salary is barely made out. She has not demonstrated that she has received unfavourable treatment in regard to the treatment received by Mr Spalding. Her claim may remain in relation to Mr Young.[29]

1. As to whether Ms Tsikos had been refused access to or was limited in accessing the benefit of negotiating her salary, the Tribunal declared itself satisfied that Ms Tsikos was discouraged from making attempts to negotiate her salary by her managers' refusals of her attempts to negotiate, but held that the discouragement was insufficient.[30] In this context, the Tribunal referred to the evidence of Ms Moorfoot and Ms Munro that Ms Tsikos' requests were inappropriate in the then existing climate of budget reform, and were not raised through the appropriate process. Ms Munro's evidence was that there were budget constraints and Ms Tsikos was given the opportunity to reconfigure the Department's funding over time through attrition or through the reclassification of positions.[31]
2. The Tribunal found that Ms Tsikos did not raise her desire to negotiate her salary 'with any degree of formality' until her complaint in 2018 'on which this application is based'.[32] According to the Tribunal, Ms Tsikos did not put Austin Health 'to the test' in that instance - 'and therefore had little evidence of the nature of the rejection of her attempts to negotiate, nor the reason for the rejections'.[33]
3. As to the reason for any denial or limitation of access to the benefit, the Tribunal found that the comment reported to have been made by Ms Moorfoot that Ms Tsikos was a 'young' manager was insufficient to satisfy the burden of proof for age discrimination, that is, that it was more likely than not that Austin Health breached s 18 of the EO Act because Ms Tsikos was 'young'. As for Dr Whelan's evidence, the Tribunal observed that it was 'about general matters' and that Dr Whelan was not in a position to comment on the effect of unconscious bias in this case.[34]
4. In its conclusion, the Tribunal made the following findings:

a) [Ms Tsikos] has failed to prove on the balance of probabilities that she was denied or limited from negotiating her salary and receiving payment for her work equivalent to her male counterpart Mr Spalding (or any other male); and

b) even if that occurred [Ms Tsikos] has not shown that it was on the basis of her age or sex.[35]

1. Further, the Tribunal found that Ms Tsikos had not established:

a) That being unable to negotiate her salary was 'unfavourable treatment'. She raised this in the context of being denied the opportunity but not providing adequate evidence of the opportunity existing amongst the other employees.

b) That she was denied or limited from negotiating her salary. [Ms Tsikos] was able to demonstrate that [Austin Health] did not encourage and informally disregarded the attempts to negotiate. She did not demonstrate with sufficient strength or particularity a denial or limitation of the attempts.

c) That any treatment which might be considered unfavourable was on the basis of her protected attributes of age or sex.[36]

1. The Tribunal then recorded that the application was dismissed.[37]

1. Ms Tsikos sought leave to appeal to the Trial Division from the Tribunal's order pursuant to s 148(1)(b) of the VCAT Act, which provides for an appeal on a question of law from an order of the Tribunal.
2. The notice of appeal identified two questions of law, each supported by a number of grounds. The first question of law related to the test for direct discrimination under s 8(1) of the EO Act, where the discrimination is said to be constituted by unfavourable treatment over a number of years. The second question of law concerned the Tribunal's approach to determining whether Ms Tsikos was treated unfavourably because of her age and sex, in light of the expert evidence about the existence and effect of unconscious bias in the workplace.
3. According to the judge, the first question of law raised two distinct issues. The first was whether there was a role for a comparator in determining whether a person has been treated unfavourably because of an attribute for the purposes of the definition of 'direct discrimination' in s 8(1) of the EO Act. The second was whether the Tribunal was required to determine the complaint of direct discrimination over a number of years by reference to the whole of the evidence over the relevant period.[38]
4. As to the role of the comparator, after noting the legislative choice to dispense with the need for a comparator, the judge observed that in many cases a comparison will provide evidence that is probative of whether a person was treated unfavourably and whether the treatment was because of a particular attribute. Considering the treatment of other people in similar circumstances may be of assistance in determining whether an applicant has been treated unfavourably and why. However, the Tribunal is no longer required to make a comparison.[39]
5. The judge accepted that a comparison between Austin Health's treatment of Ms Tsikos and its treatment of Mr Spalding was a significant component of the case put by Ms Tsikos in the Tribunal. However, Ms Tsikos' complaint was not that the Tribunal made the comparison, but that it focussed on the comparison to the exclusion of other aspects of her case. Her Honour recorded that Austin Health's position was that the Tribunal simply determined the case that was put by Ms Tsikos.[40]
6. The judge examined the case that was presented to the Tribunal, commencing with the particulars of claim and the defence. She observed that the written submissions filed on behalf of Ms Tsikos before the Tribunal hearing placed much emphasis on Mr Spalding's above-agreement remuneration and invited a direct comparison between the treatment of Ms Tsikos and Mr Spalding; the comparison between the two was a 'central plank' of Ms Tsikos' case. However, Ms Tsikos' submissions also relied on the above-agreement remuneration of other men in the Department. A significant component of the case outlined in the written submissions in the Tribunal was that Ms Tsikos had repeatedly attempted, without success, to negotiate above-agreement remuneration while Mr Spalding and five other men under Ms Tsikos' management were all paid at above-agreement rates.[41]
7. The judge found that the evidence called for Ms Tsikos at the Tribunal hearing reflected this approach. In addition, Ms Tsikos gave evidence that in March 2012 she had requested an increase in the salary to be offered to a female clinician with similar experience to Mr Spalding and this request had been refused by Ms Moorfoot. The judge observed that the statements of Austin Health's witnesses addressed the reasons for the above-agreement remuneration of all six men identified by Ms Tsikos in her particulars of claim and witness statement, not only Mr Spalding.[42]
8. The judge also referred to Ms Tsikos' written and oral closing submissions in the Tribunal. The 'centrepiece' of those submissions was the comparison between Ms Tsikos and Mr Spalding, and there were references to the other men in her team who received above-agreement salaries. Ms Tsikos' case in closing remained that she had been blocked by her managers from negotiating, and receiving, above-agreement remuneration for many years, in contrast to a number of men in her team, most notably Mr Spalding.[43]
9. The judge accepted that the Tribunal was invited to compare Austin Health's treatment of Ms Tsikos with Mr Spalding's situation, but held that there was no error in simply comparing their treatment. In an appropriate case, it is permissible to examine a claim of 'unfavourable' treatment due to an attribute by comparing the treatment of people with different attributes in like circumstances.[44] The judge continued:

However, in undertaking the comparison, the Tribunal took an unnecessary step. Instead of determining whether the responses to Ms Tsikos' attempts to negotiate a higher salary were 'unfavourable treatment' of Ms Tsikos, the Tribunal asked whether she had been treated less favourably than Mr Spalding. This is most apparent at [95] of the [Tribunal's] Reasons, where the Tribunal framed the issue for determination in this way:

• To claim that she was unfavourably denied the opportunity to negotiate her salary, [Ms Tsikos] might be expected to show that Mr Spalding or others in her Department have had the opportunity to negotiate salaries above the [enterprise agreement].

The Tribunal then found that, while it had been established that Mr Spalding had a higher salary than Ms Tsikos, 'there is insufficient evidence to demonstrate that he has had an opportunity to negotiate it or its retention'. For that reason the Tribunal found that Ms Tsikos had 'not demonstrated that she has received unfavourable treatment in regard to the treatment received by Mr Spalding'.[45]

1. The judge held that this approach was not what was required by s 8(1) of the EO Act:

The question for determination was whether Ms Tsikos had been treated unfavourably, not whether she had been treated less favourably than Mr Spalding or anyone else. The Tribunal's approach unfortunately reintroduced an 'unnecessary technicality' associated with the former definition of direct discrimination.[46]

1. As to whether the Tribunal considered the whole of the evidence of the alleged unfavourable treatment, the judge recorded Ms Tsikos' central complaint to be that, over seven years, her attempts to negotiate and receive a benefit enjoyed by six men in the Department had been rebuffed by her employer. The separate interactions with her managers in which she tried to raise the issue of pay disparity, and the way she was treated during those interactions, were parts of her overall complaint of unfavourable treatment by Austin Health.[47]
2. The judge found that the Tribunal failed to consider whether, viewed as a whole, Austin Health's treatment of Ms Tsikos in relation to her remuneration amounted to direct discrimination because of her age and sex, contrary to ss 18(a) and (d) of the EO Act. Instead, it considered the pleaded attempts to negotiate a higher salary in isolation and made findings about only five of the six attempts.[48] The Tribunal's Reasons did not include any finding about Ms Tsikos' sixth attempt to negotiate her salary, which was a significant omission, given that it was the culmination of her attempts to resolve her grievance with her employer. Insofar as the Tribunal did refer to the sixth attempt towards the end of its reasons, the Tribunal said that Ms Tsikos had not formally raised the issue until her complaint in 2018 'upon which this application is based'. The Tribunal said that Ms Tsikos had not put Austin Health to the test and therefore had 'little evidence of the nature of the rejection of her attempts to negotiate'. However, the judge observed, the Tribunal made no reference to Austin Health's response and made no finding as to whether the response amounted to a rejection of Ms Tsikos' express request for an opportunity to engage in discussions.[49]
3. The judge held that these omissions indicated that the Tribunal failed to consider critically relevant material. Her Honour concluded that the Tribunal did not address the alleged contraventions and failed to perform its statutory function in this instance.[50]
4. In summary, the judge held that Ms Tsikos had established three separate errors in relation to the first question of law:

(a) Instead of determining whether the responses to Ms Tsikos' attempts to negotiate a higher salary were 'unfavourable treatment' of Ms Tsikos, the Tribunal asked whether she had been treated less favourably than Mr Spalding, which was not the test for direct discrimination under s 8(1) of the EO Act. > > (b) The Tribunal did not determine whether the contravention alleged by Ms Tsikos - that Austin Health had treated her unfavourably in relation to her remuneration over the entire period between 2011 and 2018 because of her age and sex - had been proved. > > (c) The Tribunal failed to consider and make findings about Austin Health's response to Ms Tsikos' sixth attempt to negotiate her remuneration in June 2018.[51]

5. According to the judge, had the Tribunal not made these errors, it would have been open to find that Austin Health treated Ms Tsikos unfavourably between 2011 and 2018. Her Honour stated that it was difficult to see how the Tribunal could reasonably have concluded that Austin Health had not denied or limited Ms Tsikos' access to the benefit of negotiating her salary if it had considered Austin Health's response to her sixth attempt to negotiate her salary. Ms Tsikos' letter of 26 June 2018 put Austin Health 'to the test' in the clearest of terms.[52]
6. The judge then turned to consider whether Ms Tsikos was treated unfavourably because of her age or sex.[53] The judge held that the error in the Tribunal's approach to determining whether Austin Health had treated Ms Tsikos unfavourably also affected its finding that Ms Tsikos had not shown that the unfavourable treatment was based on her age or sex. However, in order to determine whether the complaint should be remitted to the Tribunal, it was necessary to address Austin Health's submission that it was not open to the Tribunal on the evidence to find that it had treated Ms Tsikos unfavourably because of her age or sex.[54]
7. In considering this question, the judge referred to specific sections in the EO Act that recognised that 'direct discrimination' may include discrimination that is unintentional or unconscious: ss 8(2)(a) and 10. These provisions were a strong indication that the legislature did not intend to preclude the tribunal of fact from making a finding of unintentional discrimination or unconscious bias, if such a finding was open on the evidence in a particular case.[55] According to her Honour, it would be contrary the objectives of the EO Act, which include eliminating discrimination to the greatest possible extent, encouraging the identification and elimination of systemic causes of discrimination, and promoting and facilitating a progressive realisation of equality,[56] to interpret s 8(1) of the EO Act in a way that confined questions of causation to the subjective reasons of individual decision-makers.[57] In this case, Ms Tsikos complained of direct discrimination in relation to her remuneration over a period of seven years and her complaint was made directly against Austin Health, as her employer, and not against the individual managers. Her Honour described this as 'a complaint of systemic discrimination by a large organisation' and held that it could not be reduced to a few isolated interactions with specific individuals.
8. As a result, her Honour held, the cause of the alleged unfavourable treatment was not to be determined by considering only what 'actuated' the responses of some of the managers with whom Ms Tsikos attempted to negotiate her salary. Other matters were also relevant. Her Honour set out these other matters in paragraph 99 of the Reasons. They include the evidence in relation to Mr Spalding and the other men within the Department being paid above-agreement remuneration and the blocking of Ms Tsikos' attempts, and those of another woman in the Department, to negotiate above-agreement remuneration. They also include a number of aspects of Dr Whelan's evidence as to the manifestations of gender bias in the workplace, which Dr Whelan identified as being present at Austin Health. A further matter identified by the judge was Austin Health's failure to call evidence from the employee who responded to Ms Tsikos' letter of 26 June 2018 without any proposal for resolution or offer to negotiate her remuneration. In relation to this, the judge said: 'In the absence of any explanation from Ms Gordon, or any other person, for this negative response, the Tribunal could more readily have inferred that it was because of Ms Tsikos' sex'.[58]
9. As to the reason or reasons for the unfavourable treatment experienced by Ms Tsikos, her Honour concluded:

Taking all of these matters together, I consider that it would have been open for the Tribunal to find that Ms Tsikos' sex was a substantial reason why Austin Health had, between 2011 and 2018, failed or refused to negotiate over-agreement remuneration with her, and had not paid her at over-agreement rates. That inference could have been drawn from findings that were open on the evidence, including the uncontested opinion evidence about the presence in the Department of factors known to contribute to entrenched gender pay inequality in the broader workforce. On that basis, the proceeding should be remitted to the Tribunal to be heard and decided again.[59]

Ground 1: Age discrimination remittal ground

1. The trial judge erred in:

(a) failing to expose her reasoning pathway in respect of any error in the Tribunal's decision to dismiss the claim of unlawful 'age' discrimination; and

(b) remitting the age discrimination claim to the Tribunal.

Ground 2: Wrong statutory test ground

1. The trial judge erred in determining the Tribunal applied the wrong test under s.8 of the EO Act.

Ground 3: Entire evidence ground

1. The trial judge erred in determining the Tribunal had failed to consider and adjudicate upon the 'entire evidence'.

Ground 4: Failure to consider sixth attempt ground

1. The trial judge erred in determining the Tribunal had failed to consider and adjudicate upon the sixth attempt to negotiate.

Ground 5: Systemic Discrimination finding ground

1. The trial judge erred in characterising the respondent's claim as one of 'systemic discrimination' where:

   (a) such a determination does not comprise an element of the direct discrimination statutory cause of action in s.8 of the EO Act;

   (b) no party had advanced that case; and

   (c) the nature and meaning of such nomenclature is unexplained and opaque.

Ground 6: The Unchallenged finding of fact - no detriment ground

1. The trial judge erred by ignoring a finding of fact that the respondent had failed to establish to the satisfaction of the Tribunal a denial of access to a 'benefit' or a 'detriment' as those terms are defined in s.18 of the EO Act and that such findings of fact:

   (a) were open on the evidence adduced to the Tribunal; and

   (b) were not errors of law.

Ground 7: The Briginshaw ground

1. In determining to remit, the trial judge erred in determining that the Briginshaw principles did not and would not apply to the claim of unlawful direct discrimination on the grounds of 'sex'.

Ground 8: The Jones v Dunkel ground

1. At [99(h)], in determining to remit, the trial judge erroneously invoked the rule in Jones v Dunkel to support the proposition that a failure to call a witness may itself provide the basis for an adverse inference to establish liability, to fill a gap in the evidence and in doing so converted conjecture and suspicion into an impermissible inference.

Ground 9: The Remittal Order ground

1. The trial judge erred in making an order pursuant to s.148(7)(c) of the VCAT Act remitting the claim of direct discrimination on the grounds of sex back to the Tribunal because, upon remittal for rehearing, the unchallenged findings of fact stood in the way of the claim succeeding.

1. Ground 7, the Briginshaw ground, was, quite properly, abandoned at the hearing of the appeal. We observe for completeness that we can discern no error in the judge's reasoning on this issue.
2. It is convenient to consider the remaining grounds in the order in which they were argued, commencing with ground 2.

Ground 2: Did the Tribunal apply the wrong test under s 8(1)?

1. Austin Health submits that the judge erred in determining that the Tribunal applied the wrong test under s 8(1) of the EO Act. It says that the Tribunal did not take an 'unnecessary step' or reintroduce 'unnecessary technicality' in the application of that provision. To the contrary, the Tribunal asked itself the 'right question'. It correctly paid close regard to the very particular manner in which Ms Tsikos had advanced her case while at all times being alive to the test that it had to apply, that is, whether Ms Tsikos had been treated 'unfavourably'.
2. Austin Health points out that the Tribunal repeatedly referred to the test of 'unfavourable treatment'.[60] In fact, it contends, it was Ms Tsikos who deployed the old statutory test of 'less favourable' treatment. According to Austin Health, the Tribunal was confronted with the 'forensic realities of the way in which the case was put to the decision-maker' and was required to respond to those realities.
3. According to Austin Health, Ms Tsikos advanced a 'challenging' proposition in order to prove unlawful direct discrimination on the grounds of sex, namely, that the unfavourable treatment required by s 8(1) of the EO Act was made manifest by her less favourable treatment compared to the male colleagues in the Department. Ms Tsikos asserted that the 'direct' comparator was Mr Spalding. However, Mr Spalding was never an appropriate comparator given the way in which he was recruited and why he was paid more in his particular role. By the time Ms Tsikos closed her case, she had sharpened her focus to the treatment of Mr Spalding as a 'direct' comparator - one single male employee and his experience of 'negotiating' in the workplace. While the blocking of Ms Tsikos' attempts to negotiate her salary was identified as the 'less favourable treatment' compared to the treatment of Mr Spalding, Ms Tsikos adduced no evidence of any treatment of Mr Spalding so far as salary negotiation was concerned.

1. As was pointed out in the course of argument, there is some tension between the submission that the Tribunal did not apply the wrong test and the submission that the Tribunal responded to the forensic choices made by Ms Tsikos, which focussed on a 'direct comparator' in the form of Mr Spalding and the 'less favourable' treatment that she received in regard to the opportunity to negotiate her salary. Perhaps the second submission is an alternative to the first.
2. In any event, it is clear that the Tribunal erred in its approach to determining whether there had been unfavourable treatment. This is because the Tribunal reasoned as follows:

(a) Ms Tsikos had to satisfy the Tribunal that she had received unfavourable treatment and relied for this purpose on Mr Spalding's favourable treatment. > > (b) Mr Spalding received above-agreement remuneration, due, in part, to historical factors. > > (c) To claim that she was unfavourably denied the opportunity to negotiate her salary, Ms Tsikos needed to show that Mr Spalding (or others in her Department) had the opportunity to negotiate above-agreement remuneration. However, Ms Tsikos provided evidence of only one person who had negotiated a salary higher than the award (Mr Young). > > (d) It was open to conclude at the time Mr Spalding was employed he had 'some engagement in the salary setting process', but no evidence was led in relation to any post-engagement salary negotiations. > > (e) While it had been established that Mr Spalding had a salary higher than Ms Tsikos, there was insufficient evidence to demonstrate that he had had the opportunity to negotiate that salary or its retention.[61] > > (f) The consequence was that Ms Tsikos' claim that she had been 'denied or limited in her ability to negotiate her salary was barely made out'. She had not demonstrated that she received unfavourable treatment in regard to the treatment received by Mr Spalding.

3. Ms Tsikos' complaint was therefore dismissed on the basis that she did not establish that Mr Spalding was a true comparator because there was no evidence that he had been given a benefit that had been denied to her, namely, the opportunity to negotiate above-agreement remuneration. The Tribunal's decision turned on whether Ms Tsikos had established that she was treated unfavourably only with respect to Mr Spalding (notwithstanding the Tribunal's passing reference to 'others in her Department' and to Mr Young) and only in regard to the opportunity to engage in salary negotiations. Ms Tsikos' complaint failed because the Tribunal concluded that there was no evidence about Mr Spalding's opportunities to engage in salary negotiations.[62]
4. The Tribunal's analysis was reductive. It seized on the fact that Mr Spalding was engaged on a special salary in special circumstances, and that there was no evidence of negotiation, to conclude that there was 'no equivalence' and that Mr Spalding was not a 'true' comparator. It looked no further.
5. As a consequence, the Tribunal did not have regard to the complex picture of unfavourable treatment advanced by Ms Tsikos. This picture was made up of a number of components:

(a) her repeated requests to be given the opportunity to negotiate her salary and the 'blocking' responses that her attempts elicited from her managers; > > (b) the fact that Mr Spalding and other men in the Department were paid above-agreement salaries, but Ms Tsikos and the other woman who sought to negotiate above-agreement remuneration were refused that opportunity; > > (c) the fact that Mr Spalding often acted in her position but was paid considerably more than she was to do so; > > (d) the evidence as to the operation of structural inequality and unconscious bias in the workplace given by Dr Whelan; and > > (e) the evidence that the Department was over-represented in the proportion of employees on above-agreement remuneration and all of those employees were men.

6. We agree with the judge that not only would it have been open to the Tribunal to find that composite picture was one of unfavourable treatment, it is difficult to see how the Tribunal could reasonably have concluded otherwise.[63]
7. There was, as the judge also held, no barrier to using a comparator to assist to establish the existence of unfavourable treatment, as well as to establish the reason for the unfavourable treatment. However, the Tribunal wrongly narrowed its focus and limited its inquiry to whether the comparator was a 'true comparator' in the sense that the circumstances of the comparator were on all fours with Ms Tsikos' circumstances. This reductive analysis led to the dismissal of Ms Tsikos' complaint on the sole ground that she had not provided evidence that Mr Spalding had been allowed to negotiate his salary.
8. This, as the judge held, was an error.
9. It is correct that the submissions advanced on behalf of Ms Tsikos to the Tribunal contained multiple references to her having received 'less favourable' treatment than Mr Spalding and to Mr Spalding as a 'direct' comparator. However (and perhaps ironically given Austin Health's submission to this Court), Austin Health's written submissions to the Tribunal identified the correct statutory test and pointed out that reliance on a comparator was not required under the EO Act (as opposed to the position under the 1995 Act). But even if Ms Tsikos had expressly invited the Tribunal to determine her complaint of discrimination on the 'less favourable' test, it was not open to the Tribunal to do so. The Tribunal was required to determine the complaint by applying the law enacted by Parliament and in force at the relevant time, that is, by correctly applying s 8(1) of the EO Act.[64]
10. It can be accepted that, while the chronology of events set out in Ms Tsikos' particulars of claim referred to six employees having been afforded the opportunity to negotiate above-agreement remuneration, she did not emphasise those other employees in her closing oral or written submissions. Ms Tsikos submitted in closing that the benefit denied to her was the ability to negotiate higher pay and that, as a result, she was deprived of both the negotiating benefit and receiving payment for her work that was equivalent to that of the male counterpart whom she managed, Mr Spalding. Mr Spalding and Ms Tsikos were described as being 'in a similar circumstance' in respect of their employment. But, notwithstanding that emphasis on Mr Spalding, Ms Tsikos did not advance a simplistic comparison as the basis for her discrimination claim. She submitted that determining why she was treated as she was 'requires a considered and discerning view of the facts as a whole'. In that regard, she:

(a) addressed in detail the evidence of Austin Health's witnesses and her own evidence; > > (b) emphasised the concession by Ms Moorfoot that she had been 'blocked' from negotiating greater remuneration; > > (c) addressed the effect of Dr Whelan's evidence in relation to the proper analysis of what had occurred; > > (d) emphasised the length of time during which she had attempted to negotiate in relation to her remuneration; > > (e) emphasised the lack of response to the sixth attempt; and > > (f) pointed to Austin Health's claim that it was Ms Tsikos' responsibility to have put it and its staff on notice of her claim from the very beginning of her attempts to negotiate, in 'legalistic' terms. She made similar points in her oral closing.

11. In our view, having considered the whole of the record before the Tribunal, it cannot be said that the Tribunal was led astray by the forensic choices made by Ms Tsikos. Rather, as the judge found, the Tribunal misapplied s 8(1) of the EO Act.
12. Ground 2 is not made out.

1. Ms Tsikos alleged that she had been unfavourably treated by Austin Health because of her age (a protected attribute) by reference to certain comments made to her by Ms Moorfoot. Ms Moorfoot denied the comments and Austin Health denied any direct discrimination on that basis. The Tribunal found that a comment was made by Ms Moorfoot referring to Ms Tsikos as a 'young manager', but held that such conduct alone did not constitute unlawful discrimination because of age.

1. Austin Health submits that there was no finding of error by the judge in relation to the Tribunal's dismissal of the 'age' discrimination complaint. There was therefore no basis to remit the complaint of age discrimination to the Tribunal for rehearing. To remit the entire complaint was therefore erroneous.
2. Moreover, so Austin Health submits, the notice of appeal filed pursuant to s 148 of the VCAT Act did not raise questions of law concerning the issue of age discrimination. The written outline filed by Ms Tsikos made only two references to age, the second of which advanced the proposition 'that the unfavourable treatment of Ms Tsikos by Austin Health was because of her sex and age'. Although Austin Health contended before the judge that the case on age discrimination was not advanced on the same basis as the discrimination on the basis of sex, the judge, in summarising Ms Tsikos' submissions simply made passing reference to 'her age and sex'. In fact, there was no discrete analysis of the Tribunal finding as to age discrimination. When considering what findings might be open to the Tribunal on remittal, the judge only addressed the issue of whether 'sex' was a substantial reason for the unfavourable treatment.

1. As discussed, the judge identified three errors made by the Tribunal and stated that had the Tribunal not made these errors, it would have been open to the Tribunal to find that Austin Health treated Ms Tsikos unfavourably between 2011 and 2018. The identified errors involved the Tribunal asking itself the wrong question and not carrying out its task of considering the whole of the period between 2011 and 2018 in respect of either sex or age, as well as by failing to consider the sixth particular of discrimination pleaded as being by reason of both sex and age.
2. Given these errors, the only course open to the judge was to remit the whole complaint to the Tribunal.
3. It is therefore not to the point that the age discrimination complaint was elided by consideration of the sex discrimination complaint. The complaint of discrimination was a complaint of conduct over time, commencing in 2011. At that stage, Ms Tsikos was a 'young manager' and susceptible to discrimination on the basis of both her age and her sex. The Tribunal's error in relation to the application of s 8(1) of the EO Act, identified above, infected the entirety of its consideration of Ms Tsikos' claim.
4. Ground 1 is not made out.

Grounds 3 and 4: Failure to consider relevant matters

1. Austin Health alleges that the judge erred in determining that the Tribunal:

(a) failed to consider and adjudicate upon the entire evidence; and > > (b) failed to consider Ms Tsikos' sixth attempt to negotiate her salary.

2. According to Austin Health, the Tribunal was required to have regard to the particularised case, and it did so. Ms Tsikos particularised her case on the basis that the unfavourable treatment was demonstrated by her six failed or blocked attempts to negotiate a higher salary, which was a salary equivalent to her chosen comparator, Mr Spalding. Austin Health submits that the Tribunal merely responded to the case that Ms Tsikos chose to particularise and advance: the six attempts to negotiate and the alleged blocking. The judge fell into error by ignoring the forensic realities of the case, namely, the limited evidence and the narrowed case in closing.
3. As to the sixth attempt to negotiate, Austin Health submits that the Tribunal made express reference to this by describing it in paragraphs 69 to 71 of the Tribunal's Reasons. It was a live issue before the Tribunal, which correctly found that this was the first time Ms Tsikos had raised the issue with any degree of formality.
4. Austin Health submits that the Tribunal undertook an analysis of 'unfavourable treatment', characterising each attempt to negotiate as a 'request' to negotiate. In paragraphs 100 to 103, the Tribunal reasoned that Ms Tsikos was discouraged from making further attempts to negotiate her salary. It referred to Ms Tsikos' requests and to the fact that she did not raise the issue with 'any degree of formality' until her complaint in 2018. The complaint in 2018 was the sixth attempt. Accordingly, so Austin Health submits, the Tribunal did consider the sixth attempt when it engaged in its analysis of the facts under the heading 'General'. According to Austin Health, the judge erred in finding that the Tribunal failed to consider or have regard to the sixth attempt and deployed a 'pernickety and overly legalistic' approach, marked by a search for error.

1. As discussed, Ms Tsikos put forward a picture of unfavourable treatment because of her sex and age based on a number of components, including the treatment of Mr Spalding and other men in the Department and her own rebuffed attempts to negotiate her salary. The sixth attempt was particularly important, given its formality, and it is appropriate to refer again to the matters with which it dealt, and Austin Health's response to it.
2. In her letter of 26 June 2018, Ms Tsikos drew attention to the fact that a precedent had been set for above-agreement remuneration at Austin Health and specifically within the Department, and that the beneficiaries of that precedent had all been men. She set out a series of instances in which the management of her classification and/or remuneration had been 'questionable'. Ms Tsikos recorded, in particular, that in May 2015, in a conversation with Ms Moorfoot and Ms Munro, she had been labelled as someone who was motivated by money and it had been suggested that she might wish to seek other employment options outside of public health. She stated that Ms Moorfoot would not entertain any discussion about why her direct report, Mr Spalding, was able to negotiate his employment terms, but she would not be afforded the same opportunity. Ms Tsikos made it express that the insinuation that she was being demanding and driven by greed led to feelings of embarrassment, humiliation, intimidation and insult and deterred her from pursuing the matter for a long while. By her letter, she sought to resolve the difficulty in a structured, transparent and expeditious manner, seeking a written acknowledgement with next steps detailing how the matter would be progressed to resolution by a given date. Ms Tsikos signed off that she looked forward to reviewing the resolution proposal.
3. Ms Tsikos' letter (which the Tribunal described as 'the sixth attempt') contained a clear complaint about discrimination and called unequivocally for a response to her request to negotiate her salary.
4. However, instead of responding to Ms Tsikos' request to negotiate her remuneration, Austin Health, under the signature of a Divisional Director, 'fobbed off' Ms Tsikos by referring to inquiries made of Employee Relations. The response recorded that:

(a) Ms Tsikos had been incorrectly graded upon the commencement of her employment but that this error had been rectified; > > (b) the change to her grade title in September 2017 was a result of changes to the enterprise agreement and impacted all health professionals who previously had a job grade with the term 'Chief'; > > (c) over-award payments were made to two men in the Department due to the grandfathering of their salaries; and > > (d) the salary of Mr Spalding was recognised as 'an anomaly'.

5. However, no indication was given as to how Ms Tsikos' concerns about her inability to negotiate her salary would be addressed. That aspect of her letter was effectively ignored by Austin Health.
6. As we observed above, the Tribunal described the sixth attempt in paragraphs 69 to 71 of its reasons, where it set out Ms Tsikos' evidence. However, in the part of its reasons headed 'Discussion and Findings', there is scant reference to the sixth attempt. In that part of the Reasons, the Tribunal analyses the first, second, third, fourth and fifth attempts in some detail, with relevant headings.[65] However, there is no consideration or analysis of the sixth attempt in this part of the Reasons. As Austin Health accepted, the only reference to the sixth attempt in this part of the Reasons is the comment in paragraph 91 that Ms Tsikos 'felt her efforts to attain a benefit which had been bestowed on an older male who performs a similar job ... had been stifled and that she did not raise the issue again until 2018 for that reason'.
7. Austin Health also relied on the Tribunal's similar observation at paragraph 103, under the heading 'General', that the applicant 'did not raise the issue with any degree of formality until her complaint in 2018, on which this application is based.'
8. Austin Health was not able to point to any other part of the Tribunal's Reasons in which it could be said the Tribunal had dealt with the sixth attempt. Further, there is no reference at all to Austin Health's response to the sixth attempt.
9. Notwithstanding the significance of the sixth attempt, there is no real consideration of it in the Tribunal's Reasons. Its importance was such that is was not sufficient to deal with it simply by recognising that the application to the Tribunal was based on it. Further, the claim for discrimination based on the sixth attempt could not be properly understood and evaluated without reference to Austin Health's letter in response to it. It was the effective rejection of the sixth attempt - by ignoring Ms Tsikos' request for a discussion concerning her remuneration - that was the conduct said to constitute the unfavourable treatment, or part thereof, not the letter written by Ms Tsikos. But the Tribunal made no reference to the Austin Health letter.
10. The Tribunal failed to come to grips with the sixth attempt, and, for the reasons given in relation to ground 2, did not come to grips with the entire evidence, deploying, instead, an entirely reductive analysis.
11. For these reasons, grounds 3 and 4 must fail.

Ground 5: Unconscious bias and 'systemic' discrimination

1. Austin Health alleges that the judge erred in characterising Ms Tsikos' claim as one of 'systemic discrimination'.
2. A significant aspect of this ground, as it was developed in oral argument, concerned a passage in the primary judge's decision in which her Honour used the term 'actuated'.[66] Thus it is necessary to say something about the term 'actuated', and the manner in which it was used by the judge.

1. It may be first observed that the term 'actuated' was used by counsel for each party in the hearing before the judge, and the judge was referred to various authorities concerning that term. The judge used that term in paragraphs 98 and 99 of the Reasons. Relevantly, and in context, her Honour said as follows:

I consider ss 8(2) and 10 of the EO Act to be a strong indication that the legislature did not intend to preclude the tribunal of fact from making a finding of unintentional discrimination or unconscious bias, if such a finding is open on the evidence in a particular case.

This view is reinforced by the objectives of the EO Act, as set out in s 3, which include eliminating discrimination to the greatest possible extent, encouraging the identification and elimination of systemic causes of discrimination, and promoting and facilitating the progressive realisation of equality. It would be contrary to these objectives to interpret s 8(1) of the EO Act in a way that confines questions of causation to the subjective reasons of individual decision-makers. In some cases, the cause of unfavourable treatment will turn on what actuated a particular person to act as they did. In those cases, direct evidence from that person may be decisive. That is less likely to be so in cases involving a complaint of systemic discrimination, where the unfavourable treatment is an accumulation of acts and omissions by many individuals over a long period. In those cases, evidence of other matters is also likely to be relevant.

In this case, Ms Tsikos complained of direct discrimination in relation to her remuneration over a period of seven years. Her complaint was made directly against Austin Health, as her employer, and not against individual managers for whom Austin Health was said to be vicariously liable. It was a complaint of systemic discrimination by a large organisation, and could not be reduced to a few isolated interactions with specific individuals. Hence, the cause of the alleged unfavourable treatment was not to be determined by considering only what actuated the responses of some of the managers with whom Ms Tsikos attempted to negotiate her salary. Other matters were also relevant.[67]

1. The 'other matters', which her Honour then set out, included Dr Whelan's evidence concerning unconscious bias, both generally and as allegedly manifested in the language used by Ms Moorfoot and Ms Munro in their dealings with Ms Tsikos.[68]
2. Austin Health submitted that her Honour's use of the term 'actuated' in paragraph 99 could be replaced by 'caused'. That is, it submitted that Her Honour was to be understood as saying that 'the cause of the alleged unfavourable treatment was not to be determined by considering only what caused the responses of some of the managers'. That, it submitted, was an error.
3. We reject that submission. It is plain, in our view, from the context in which her Honour used the term 'actuated' that she had in mind the conscious reasons of the particular managers, not the overarching cause of the unfavourable treatment by Austin Health. There are three aspects of her Honour's reasoning that make that clear.
4. First, the judge opened the relevant sentence in paragraph 99 by stating that the cause of the unfavourable treatment was not to be determined only by considering what actuated the managers. Her Honour used different terms - cause and actuate - to convey different meanings. Further, if 'actuated' is replaced by 'caused', there is a double reference to 'cause' in the sentence, which is not a plausible reading of the sentence.
5. Secondly, the judge introduced the discussion in paragraph 99 in paragraphs 97 and 98. Paragraph 97 makes it clear that her Honour was concerned with whether the EO Act permitted a tribunal to make a finding of unintentional discrimination or unconscious bias. This was in response to submissions made by Austin Health that the EO Act did not countenance an 'attempt to peer into the unconscious reasoning of the persons who engaged in the relevant conduct'.[69]
6. In paragraph 98 of the Reasons, the judge drew on the objectives of the EO Act to support her conclusion that the EO Act does permit a finding about the unconscious reasons of decision-makers. Her Honour considered that to confine the question of causation to the subjective reasons of individuals would be contrary to those objectives. She then explained that, in some cases what 'actuated' a person will be critical; that use of 'actuated' plainly refers to the 'subjective reasons' in the immediately preceding sentence. In other cases, which involve acts and omissions of many people over many years, the judge observed that 'other matters' would be relevant. That distinction - between 'actuation' as the subjective reason or reasons, and 'other matters' beyond individual actuation - is then followed in paragraph 99.
7. Thirdly, in identifying the 'other matters' prompting or underlying a decision that the judge considered to be relevant in the present case (beyond what 'actuated' the individual managers), her Honour referred to the evidence of Dr Whelan concerning unconscious bias. That could only be an 'other matter', distinct from 'actuation', if what actuated a decision does not include unconscious reasons, and actuation is confined to the individual's conscious reasons for her or his actions.

Caution in using the term 'actuated' when interpreting and applying the EO Act

1. Putting to one side what her Honour meant when she used the term 'actuated' in the Reasons, which we regard as clear, we wish to observe that that language, used extensively by Austin Health both before the judge and before us, and derived, it appears, from legislation and cases concerning employment law, is unhelpful in the context of the EO Act. In our view it is best avoided.
2. First, it is not the statutory language. The statutory inquiry under s 8 of the EO Act is whether the unfavourable treatment is 'because of' a protected attribute. Nowhere is the word 'actuated' used. It is generally preferable to use the language of the statute, particularly where the use of alternative language may mislead. It is plain that the word 'actuated' is apt to mislead precisely because it leads to the kind of debates ventilated in this Court about what the judge meant when she used the term. That is, it is capable of being understood, depending on the context, as meaning 'caused' or as meaning 'consciously and subjectively intended'.
3. Secondly, the term 'actuated' is, in our view, apt to mislead in addressing the statutory question posed by s 8 of the EO Act because, in so far as it is understood in the sense of 'consciously and subjectively intended', it may raise issues that are the subject of separate legislative provisions, which again do not use the word 'actuated':

(a) s 8(2) of the EO Act expressly provides that it is irrelevant 'whether or not [the] person is aware of the discrimination or considers the treatment to be unfavourable'; > > (b) s 10 of the EO Act expressly provides that, 'in determining whether or not a person discriminates, the person's motive is irrelevant'; and > > (c) as the judge pointed out, the objectives set out in s 3 of the EO Act include the elimination of systemic discrimination, which may well occur in circumstances where there is no conscious intention or motivation to discriminate.

4. Thus, the EO Act makes it quite clear that the conscious motive or intention of the discriminator is not necessarily an answer to a claim of discrimination. Yet discussion of 'actuation', in place of 'because of' (or cause), may have a tendency to cause a reader or listener to consider conscious motivation.
5. Austin Health defended its use of the word 'actuated' on the basis that it was used in several High Court decisions, commencing with General Motors-Holden's Pty Ltd v Bowling.[70] That case was decided in the 1970s and concerned the Conciliation and Arbitration Act 1904 (Cth) ('CAA'). Importantly, the CAA used the word 'actuated'. In summary, s 5(1) of that Act prohibited an employer from dismissing an employee 'by reason of the circumstance' that the employee was a member of a union. Section 5(4) then contained a reverse onus provision: 'if all the facts and circumstances constituting the offence, other than the reason for the defendant's action, are proved it shall lie upon the defendant to prove that he was not actuated by the reason alleged in the charge'.[71] One can immediately see that, in that statutory context, it was quite apt for the Court to use the term 'actuated'.
6. In addition, it is relevant to note that the CAA did not contain:

(a) the same objectives found in the EO Act, in particular including in relation to the elimination of systemic discrimination; > > (b) any equivalent of s 10, concerning the irrelevancy of motive; or > > (c) any equivalent of s 8(2), concerning the irrelevancy of the person's awareness of discrimination or their views about whether the treatment is unfavourable.

7. Thus, reliance on Bowling as support for the use of 'actuated' in the context of the meaning and operation of the EO Act is misplaced.
8. Austin Health also referred to the continued relevance of Bowling and the concept of actuation in more recent cases decided under s 346 of the Fair Work Act 2009 (Cth) ('FWA'), being the equivalent provision to s 5(1) of the CAA. Section 346(a) provides as follows:

A person must not take adverse action against another person because the other person:

(a) is or is not, or was or was not, an officer or member of an industrial association; ...

1. Section 361 contains a reverse onus provision, which is somewhat different from s 5(4) of the CAA. It relevantly provides as follows:

Reason for action to be presumed unless proved otherwise

• (1) If:

  (a) in an application in relation to a contravention of this Part, it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and

  (b) taking that action for that reason or with that intent would constitute a contravention of this Part;

it is presumed that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise.

1. As is apparent, these provisions do not use the word 'actuated'; thus, s 346 is closer in form to s 8 of the EO Act, in that it uses 'because of'; and s 361 uses 'reason' and 'intent'. However, the relevant part of the FWA (pt 3.1) has objects that are quite different from those of the EO Act[72] and the FWA contains no equivalent to either s 8(2) or s 10.
2. Finally, the authorities concerning the FWA provisions relied upon by Austin Health do not, in our view, support the proposition that the word 'actuated' is an appropriate substitute for the words 'because of' when considering and applying the EO Act. While Barclay supports the proposition that Bowling remains authoritative in relation to the FWA provisions,[73] that reflects the fact that those provisions are the successors to the CAA provisions considered in Bowling. That simply cannot be said of the EO Act. In short, it is a significantly different Act from the FWA, with different objectives and different operative provisions.

1. Returning to ground 5 as articulated in the application for leave to appeal, Austin Health focused on the judge's description of Ms Tsikos' claim as one of systemic discrimination. The error in the use of that language was said to be that:

(a) systemic discrimination does not comprise an element of direct discrimination under s 8 of the EO Act; > > (b) no party had advanced a case of systemic discrimination; and > > (c) the nature and meaning of the term was 'unexplained and opaque'.

2. In oral argument Austin Health in effect accepted that ground 5 was inextricably tied to its submissions on the judge's use of the word 'actuated' and that, if that word as used in paragraph 99 did not mean 'caused', then this ground would fail.
3. Given our conclusion about what the judge meant in paragraph 99 of the Reasons, ground 5 must fail. But we note for completeness that none of the other errors alleged by Austin Health under this ground are made out. Taking the points in reverse order:

(a) The judge clearly explained what she meant by systemic discrimination: 'where the unfavourable treatment is an accumulation of acts and omissions by many individuals over a long period'.[74] > > (b) The use of an adjective to describe a case, in circumstances where that adjective was not used by the parties to describe their case, does not bespeak error unless it indicates that the judge misunderstood the case being so described. There is no indication that the judge misunderstood Ms Tsikos' case: it was, as the judge observed, a claim that she had been the subject of unfavourable treatment by Austin Health and its employees over seven years. > > (c) Because the judge used 'systemic discrimination' as an adjective to describe the nature of Ms Tsikos' case, it is irrelevant that that language is not used in s 8. It is, of course, used in the objectives in s 3, which can properly inform the scope and interpretation of s 8. Indeed, Austin Health accepted that, although systemic discrimination is 'usually' associated with indirect discrimination, governed by s 9, such discrimination can also fall within s 8. Austin Health accepted that the mere use of the phrase 'systemic discrimination' was not, in itself, an error.

Grounds 6 & 9: 'Unchallenged' finding of fact and utility of remitter

1. Austin Health submits that the Tribunal made a clear finding of fact that Ms Tsikos had not established unfavourable treatment and that the s 18 requirements had not been made out. Ms Tsikos did not argue and could not establish that there was no evidence to support this finding of primary fact. Neither erroneous findings of fact nor the drawing of illogical or inappropriate inferences, so it argued, will constitute an error of law with which the Court may concern itself under s 148 of the VCAT Act.
2. According to Austin Health, the judge erred in remitting the complaint to the Tribunal in the face of what it described as the 'unchallenged finding' that Ms Tsikos had not established unfavourable treatment and the s 18 requirements had not been made out. If Ms Tsikos failed to establish as a matter of fact that she had suffered detriment, then the statutory cause of action in the Tribunal had to fail.
3. This ground of appeal can be dealt with shortly. The judge found that the Tribunal erred in the test for direct discrimination that had to be applied, pursuant to s 8(1) of the EO Act, in determining whether Austin Health had 'discriminated against an employee' as prohibited by s 18 of the EO Act. If there has been an error of law in the test to be applied by the Tribunal, then a finding of fact by the Tribunal regarding s 18 made in the application of the wrong legal test is not one that can survive an appeal under s 148 of the VCAT Act. Furthermore, a finding of fact by the Tribunal regarding s 18 is a finding of mixed fact and law.
4. Nor do we think it right to say that the Tribunal's finding that Ms Tsikos had not established unfavourable treatment and the s 18 requirements had not been made out was 'unchallenged'. Plainly, the gravamen of Ms Tsikos' appeal was a challenge to the entirety of the Tribunal's conclusions, based on alleged errors of law. There would have been little point in the appeal were that not so.
5. Accordingly, there was no error in remitting the complaint to be heard and determined again by the Tribunal.
6. Grounds 6 and 9 are not made out.

1. Austin Health submits that the judge erred in her invocation of the principle in Jones v Dunkel in paragraph 99(h) of the Reasons to suggest that a gap might be filled in the evidence to establish liability for sex discrimination, so as to convert conjecture and suspicion into inference.
2. In paragraph 99 of the Reasons, her Honour set out eight 'other matters' that were relevant to determining the cause of the unfavourable treatment (from (a) to (h)). Paragraph 99(h) was as follows:

Austin Health's failure to call evidence from Ms Gordon, the Divisional Director Allied Health, who responded to Ms Tsikos' letter of 26 June 2018 without any proposal for resolution or offer to negotiate her remuneration. In the absence of any explanation from Ms Gordon, or any other person, for this negative response, the Tribunal could more readily have inferred that it was because of Ms Tsikos' sex.

1. A footnote to paragraph 99(h) referred to Jones v Dunkel.
2. In oral argument before us Austin Health conceded that, if paragraph 99(h) was put to one side, the remaining seven matters in paragraphs 99(a) to (g) were sufficient to support an inference that the decisions made by Austin Health were 'because of' Ms Tsikos' sex.[75] That was, in effect, a concession that, even if the judge erred in her reliance on Jones v Dunkel, that error was immaterial.
3. We consider that concession was properly made. Even if no inference could be drawn from Austin Health's failure to call evidence from Ms Gordon (the author of the response to Ms Tsikos' letter of 26 June 2018), that would not affect the judge's conclusion that, when all of the other matters set out in paragraph 99 of the Reasons were taken together, it was open to the Tribunal to find that Ms Tsikos' sex was a substantial reason why Austin Health had, between 2011 and 2018, failed or refused to negotiate above-agreement remuneration with her.
4. Ground 8 is not made out.

1. None of the grounds of appeal is made out. Leave to appeal will be granted but the appeal will be dismissed.

[1] Allied Health Professionals (Victorian Public Sector) Single Interest Enterprise Agreement 2016-2020 and its predecessor agreements_._

[2] For present purposes, the relevant provisions of the EO Act are found in Authorised Version No. 20, incorporating amendments as at 1 September 2015.

[6] EO Act s 4(1) (definition of 'discrimination').

[8] Explanatory Memorandum, Equal Opportunity Bill 2010 (Vic) 12-13.

[9] Victoria, Parliamentary Debates, Legislative Assembly, 10 March 2010, 784 (Rob Hulls, Attorney-General).

[11] Tsikos v Austin Health [2022] VSC 174, [7] ('Reasons').

[12] Tsikos v Austin Health (Human Rights) [2020] VCAT 1387, [37]-[38] ('Tribunal Reasons').

[16] The letter is dated 26 July 2018, but was sent on 26 June 2018 (the day prior to Ms Tsikos commencing a period of leave): Reasons, [63] n 39.

[53] Ms Tsikos argued that the Tribunal erred in considering that the expert evidence had to be directed to the provable effect of unconscious bias in that particular case and wrongly failed to take into account, as relevant, the expert evidence. Ms Tsikos contended, further, that the Tribunal erred in failing to find that the evidence, including the expert evidence and inferences reasonably to be drawn, proved that Austin Health's unfavourable treatment of Ms Tsikos was because of her sex and, at least historically, also her age: see Reasons, [84].

[58] Reasons, [99(h)] citing Jones v Dunkel (1959) 101 CLR 298, 304 (Dixon CJ) ('Jones v Dunkel').

[60] Citing Tribunal Reasons, [2], [14], [23], [93], [109].

[61] In fact, this appeared to be inconsistent with Austin Health's own case before the Tribunal. In relation to Mr Spalding's initial salary, Austin Health submitted as follows to the Tribunal:

• Mr Spalding negotiated his terms and conditions, his position description, his budget, his revenue-funded position in September '09 and he got the job .... There's no evidence of any other negotiation after that. He just continued to work in his job. So he wasn't negotiating anything.

[62] We note that the Tribunal's decision is difficult to follow in this regard because the Tribunal described Ms Tsikos' claim as 'barely' made out (which suggests that it was made out) and said that '[h]er claim may remain in relation to Mr Young'. Yet, the Tribunal plainly rejected her claim at this stage in its reasoning and no party sought to suggest otherwise.

[64] At most, this submission could go to the potential for the discretionary refusal of relief. However, no argument of that kind was made by Austin Health before us.

[65] See Tribunal Reasons, [83]-[92].

[66] See Reasons, [99]. See also [72] above.

[67] Reasons, [97]-[99] (emphasis added) (citations omitted).

[68] See also [72] above.

[69] Reasons, [92]. As the judge observed, Austin Health relied upon Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32; (2012) 248 CLR 500 ('Barclay'), a decision concerning the operation of ss 346 and 361 of the Fair Work Act 2009 (Cth) (discussed further below). Austin Health submitted as follows:

• You ought not, because the word 'because' appears in s 8(1) of the 2010 Act, find that as a matter of statutory construction that permits the finder of fact to peer into the unconscious reasoning of the persons engaged in the conduct. Because two judges in the Full Court of the Federal Court said that's what you can do, and the High Court, these two judges said, 'no, you do not do that', that's not what the legislature, through its language, has mandated for the trier or finder of fact.

[70] (1976) 51 ALJR 235 ('Bowling').

[73] [2012] HCA 32; (2012) 248 CLR 500, 523 [59] (French CJ and Crennan J).

[74] Reasons, [99]. No complaint was made about that language, save for the contention that the number of persons at Austin Health involved in the alleged discrimination was three, which was said not to amount to 'many'. There was no merit in that point.

[75] That concession was made if ground 5 (concerning 'actuation') failed, as it has.