The Workplace Culture Plea
25 Qantas complains that the Workplace Culture Plea is drawn in a way that fails properly to articulate a sound cause of action and is, in significant ways, premised upon conclusions that are not said to be established by material facts elsewhere pleaded.
26 I accept that that is so. There are multiple dimensions to that conclusion.
27 First, paragraph 80A of the ASOC is inherently indistinct. It posits that the "workplace in which Ms Forshaw was employed was…hostile to women". What constitutes a "workplace that was hostile to women" is unsatisfactorily imprecise. A workplace - at least as a physical location - cannot exhibit hostility. Conceivably, a workplace might exhibit or possess other characteristics that accumulate to a point that might colloquially constitute hostility; but what might those characteristics be? And wouldn't it depend, in any event, upon potentially all manner of circumstances? Hostility is, after all (and for present purposes), open to subjective interpretation. How can any respondent - even one as large and well-resourced as Qantas - sensibly respond to such an inherently nebulous allegation?
28 Upon the court's posing of those interrogatories (or analogues of them) at the hearing of the application, counsel for Ms Forshaw maintained that what is or is not a "workplace that was hostile to women" is "a matter for submissions". It is, he maintained, open to Qantas simply to deny what is alleged and for the parties to then air, at trial, such competing submissions as they may wish regarding whether or not the circumstances to which paragraph 80A of the ASOC refers suffice to qualify Ms Forshaw's workplace as one "…that was hostile to women".
29 That submission is self-evidently unsound and liable to summary rejection. It is no answer to a charge that a pleading is impermissibly vague to say that it is open to the opposing party merely to deny what is alleged and, thereafter, to let things play out as they may in submissions. Such a contention sets at nought the ideal that pleadings should enable parties to understand - and to have an opportunity to meet - the case or cases that are advanced against them. If the applicant wishes (as, of course, she may in the usual run of things) to place a label upon something - here, the workplace within which she works - it must be a label that can be understood and that lends itself to intelligible rejoinder. In order that a respondent might admit or deny that such a label is apt, it must first know what it means. So, too, must the court. Paragraph 80A of the ASOC is, in that sense, self-evidently inadequate.
30 But that isn't the only problem.
31 Paragraph 80A of the ASOC merely serves to establish the state of affairs that is said to contextualise the injury or discrimination that, in each case, is said to suffice as the effect of adverse action under s 342(1) of the FW Act: ASOC, [80B]. It is paragraph 80C that identifies the conduct that is said to have given rise to that state of affairs (and, thereby, to have visited that injury or discrimination). That conduct is said to assume one or more of three forms. It is said, first, that Qantas "creat[ed]" a workplace that was hostile to women; second, that it "fail[ed] to prevent the existence" of such a workplace; and, third, that it "allow[ed]" such a workplace to exist. It is by those instances of conduct - the creation, the failure to prevent and/or the tolerance of a hostile workplace - that Qantas is said to have visited the adverse action upon which this aspect of the ASOC rests.
32 The problems with paragraph 80C are numerous. The suggestion that a body corporate has created, allowed or failed to prevent something is inherently conclusory. Other than by process of legal fiction, bodies corporate cannot engage in conduct. They cannot create or allow or fail to prevent anything. Assuming that it can be established, the creation, allowance or failure to which 80C of the ASOC refers can only have arisen from the conduct of natural persons. For present purposes, that conduct - which is to say the acts or omissions of those people - may be attributed to Qantas by means of s 793(1) of the FW Act (and, potentially, by other means); but it is only by such a process of attribution that conduct might attach directly to the body corporate.
33 Here, the creation of, tolerance of and/or failure to prevent the existence of a workplace that was hostile to women is attributed solely to Qantas. The ASOC does not plead any material facts that are capable of establishing that attribution (whether by application of s 793(1) of the FW Act or otherwise). Who it was that is said to have done or not done the things that resulted in the creation, tolerance or failure that is alleged is wholly unexplained, as is the nature of their agency or relationship to the alleged corporate wrongdoer. Neither Qantas nor the court can know how it is put that Qantas did or did not do the things that it is said to have done or not done.
34 Counsel for Ms Forshaw sought to answer that criticism in two ways. First, he submitted that the creation, tolerance or failure is necessarily to be inferred from what is pleaded at paragraph 80A of the ASOC: in other words, that it may be said, by reason of its existence, that a workplace that was hostile to women was created, tolerated or not prevented. Second, he contended that s 361(1) of the FW Act serves to relieve his client of any need to identify the human agents whose conduct is to be attributed to Qantas. I shall address each contention in turn.
35 There is a logical attraction to the first contention but, ultimately, it is circular. Qantas is entitled to know not merely what the state of affairs that is said to have existed was; but also how it is said to have existed as a consequence of conduct properly attributable to it. It is no answer to say that, because the state of affairs existed, it should necessarily follow that Qantas created, tolerated or failed to prevent it. Perhaps that might be so; but so to find would require the establishment of other material facts, none of which is pleaded. Moreover, the facts that might suffice to establish the creation of the state of affairs to which 80A of the ASOC refers may or may not be the same facts by which Qantas is said to have tolerated or failed to prevent it. It cannot be left to Qantas to guess what those other facts might be. Nor is it under any obligation to identify them itself, even assuming that it is well placed (or, perhaps, better placed than Ms Forshaw) to do so. Qantas is entitled to know the material facts by reason of which Ms Forshaw intends to attribute to it the conduct that paragraph 80C alleges. Ms Forshaw is obliged to plead them.
36 It might be accepted that those conclusions present difficulties for Ms Forshaw - indeed any applicant. It may well be the case that Ms Forshaw's proper basis for pleading that Qantas created, tolerated or failed to prevent what it is said to have created, tolerated or failed to prevent arises only from the existence of what she says was created, tolerated or not prevented. Perhaps it will be difficult for her to identify the human agents through whose conduct - whether acts or omissions - the court might find that Qantas created, tolerated or failed to prevent the state of affairs to which she points.
37 Three responses spring immediately in answer to that proposition. First, that difficulty is not a basis upon which the court might properly deny Qantas its entitlement to know, with precision, the case that is mounted against it (including in connection with how conduct is to be attributed to it). Second, Ms Forshaw has had available to her a raft of processes under the Rules by which she might, if she needed to, obtain answers to any such difficult questions. Third, in circumstances where, as here, it is to be alleged that particular conduct was at least partly actuated by an identified reason, it is difficult (though perhaps not necessarily impossible) to see how an applicant might have a proper basis for saying so in the absence of knowing by whom that conduct was undertaken.
38 I turn, then, to the application of s 361(1) of the FW Act. Counsel for Ms Forshaw submitted that, by operation of that provision, his client is not obliged to identify the human agents by whose conduct Qantas might be said to have done or not done the things that paragraph 80C of the ASOC attributes to it. The effect of that section, he contended, is that it suffices for Ms Forshaw simply to allege as she has; and that it then falls to Qantas to address it as best it can.
39 That contention is plainly wrong and I reject it. Before explaining why, something should be said about the reasoning of this court in Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2017] FCAFC 50 (Greenwood, Flick and Rangiah JJ; "BHP Coal"), upon which Ms Forshaw heavily relied. That matter concerned an application for leave to appeal from orders made under r 16.21 of the Rules. Relevantly, the primary judge had there resolved to strike out parts of a pleading in a matter that, as here, involved allegations that a respondent had contravened a provision of pt 3-1 of the FW Act. In part, those orders were made in circumstances where the applicant had alleged that the incorporated respondent had engaged in conduct with an identified state of mind; but did not identify the person or persons whose intent or state of mind was said to be attributable to it.
40 The application for leave to appeal was dismissed. Nonetheless, the court was moved to address one aspect of the primary judge's reasoning. Their Honours observed (at [69]-[70]) as follows:
Where an applicant alleges that a respondent has contravened s 340(1)(a)(i) through the operation of s 362(1) of the FWA by reason that the respondent took action with intent to coerce another person to engage in adverse action, s 361(1) imposes an onus on the respondent to prove that it did not have that intent. In this case, BMA has the onus of proving that it did not intend to coerce BHP Coal into engaging in adverse action against its employees. Rule 16.03(2) of the Rules provides that a party need not plead a fact if the burden of proving the fact does not lie on that party. Thus, while the applicant's pleading must raise an allegation that BMA took the action with intent to coerce, it is not required to plead the identities of the persons whose intent is to be attributed to BMA. Assuming that r 16.43(1) applies, it requires that a party who pleads a condition of mind must state in the pleading particulars of the facts on which the party relies. However, there can be no requirement to provide particulars of facts which r 16.03(2) does not require to be pleaded.
It follows that the primary judge erred in striking out paragraph 40 of the ASOC on the basis that it did not identify the person or persons whose intent was to be attributed to BMA. Despite that error, any appeal would necessarily fail because her Honour was correct to strike out paragraph 40 for the reason that it depended on and went with paragraph 29 of the ASOC.
41 Plainly, those comments were made in obiter and are not binding for present purposes. Nonetheless, I should record two observations about them.
42 First, they do not engage with the issue with which the court is here confronted. The full court's observations concerned the state of the pleading as to the corporate respondent's state of mind, rather than its conduct. Insofar as concerns paragraph 80C of the ASOC, the court is concerned solely with the latter.
43 Second (and with respect), neither of s 361(1) of the FW Act or r 16.03(2) of the Rules operates to relieve an applicant in a general protections matter of his or her obligation to prove (and, therefore, properly to plead) that a respondent's conduct was at least partly animated by a reason or state of mind that pt 3-1 relevantly proscribes. Their Honours appear not to have been alerted to the conclusions of Wilcox and Cooper JJ in Davids Distribution Pty Ltd v National Union of Workers (1999) 91 FCR 463. Speaking of predecessor provisions, their Honours there observed (at 501 [109]):
Section 298V does not relieve the applicant in proceedings under Div 6 of Pt XA of the Act from proving on the balance of probabilities each of the ingredients of the contravention. It enables the allegation to stand as sufficient proof of the fact unless the employer proves otherwise: R v Hush; Ex parte Devanny (1932) 48 CLR 487 at 507.
44 Those observations are consistent with what was said more recently in TechnologyOne Ltd v Roohizadegan (2021) 174 ALD 224, 284 [221] (Rangiah, White and O'Callaghan JJ).
45 Section 361(1) of the FW Act does not operate to qualify, nor to relieve an applicant of, the obligation to plead with orthodox precision the case that is to be advanced against a respondent. Instead, it operates to facilitate, by means of a rebuttable presumption, the proof of one aspect of such a case (namely, the state or states of mind by which identified conduct is said to have been at least partly actuated): Construction, Forestry, Mining and Energy Union v Coal and Allied Operations Pty Ltd (1999) 140 IR 131, 167 [161]-[162] (Branson J). Contrary to the effect of Ms Forshaw's submission, the statutory presumption does not serve to suspend the ordinary conventions of procedural fairness so as to require that a respondent should make its own sense of a case advanced vaguely against it.
46 An applicant in a matter commenced under pt 3-1 of the FW Act must plead, in the usual way, the conduct in which a respondent is said to have engaged. In the case of corporate respondents, that endeavour necessarily requires the identification of the human actors whose conduct is said to be relevantly attributable, and of the agency or other circumstances that suffice to associate that conduct as conduct of the body corporate. Paragraph 80C of the ASOC quite obviously fails in those regards.
47 With those conclusions stated, it is unnecessary that I should venture any additional opinion about what appears at paragraph 80D of the ASOC. Qantas submits that:
…there is no basis for the circular and unparticularised allegation in [80D] that Qantas created the Sexist Culture, failed to prevent the Sexist Culture or allowed the Sexist Culture to continue. There are simply no facts alleged as to how that conduct could have been because of Ms Forshaw's sex. It makes no sense as it is alleged (presumably) that this was the culture of the workplace, not a culture developed because of Ms Forshaw's sex. A mere disparate impact on a person because of an attribute is not sufficient for a claim pursuant to s 351 (as opposed to indirect discrimination pursuant to the Sex Discrimination Act 1984 (Cth)).
48 There may or may not be something to that complaint; but, whatever might be said of it, it is not something that should, of itself, sound in orders under r 16.21 of the Rules. It would be a question to be determined at the trial whether Qantas engaged in conduct because, or for reasons that include that, Ms Forshaw is a woman.
49 As it is, none of the interdependent parts of the Workplace Culture Plea is salvageable. It is, in its entirety, likely to cause prejudice, embarrassment or delay, and it fails to disclose a reasonable cause of action. It should (and will) be struck out in its entirety.