The Workplace Culture Plea
22 Qantas's complaints about the Workplace Culture Plea in the Proposed FASOC are multi-faceted. To begin, it complains that paragraph 80A suffers from the same want of clarity that plagued it when it assumed the form that it assumed prior to being struck out. It is said that the "…addition of alleged generalised and wholly unparticularised 'characteristics' of the alleged workplace in paragraphs 80A(a) to (h) do not cure the defects".
23 That is most certainly so. It is to be remembered that, in Forshaw No 1, I accepted that paragraph 80A of what was then the ASOC was "inherently indistinct". It was objectionable because it was vague and conclusory (and, therefore, embarrassing). By the amendments incorporated into the Proposed FASOC, there can be no doubt that Ms Forshaw has at least attempted to flesh out the vague assertion from which her ASOC formerly suffered (namely, that she was employed within a "workplace that was hostile to women"). For the most part, though, that has been done by introducing constituent characteristics that are equally nebulous or conclusory (or both).
24 Paragraph 80A(a) is a good example. Held up as a regard in which Ms Forshaw's "workplace" ought to be understood as one that "was hostile to women", it maintains that that "workplace" was "characterised" by "discriminatory conduct" that was "so severe and pervasive" that its result was that "Ms Forshaw's ability to perform her role" was "interfered with". Every aspect of that assertion is vague. What was the discriminatory conduct? What made it severe and pervasive (or what made it so)? How was Ms Forshaw's ability to perform her role constrained? When might conduct be said to "characterise" a workplace?
25 Paragraph 80A(c) is in the same category. It posits that Ms Forshaw's workplace was "a workplace that was hostile to women" because it constituted (and still constitutes) "an intimidating, offensive, threatening or humiliating work environment to women". Again, the difficulties with that assertion are manifest. Intimidating how..? Offensive how..? How, I ask rhetorically, could any employer faced with an accusation like that sensibly respond to it?
26 The same criticisms attach to paragraph 80A(d) and 80A(h). The former alleges that the workplace in which Ms Forshaw was employed was one "where a woman's psychological well-being is adversely affected because of [her] gender". It can safely be assumed that the reference there to "a woman" is intended as a reference to more than one of Qantas's female employees. Perhaps it is intended as a reference to all of them. But what is meant by "psychological well-being" being "adversely affected" is anything but clear. Affected how..? What is the "higher standard" referred to in 80A(h)? What is the career progress referred to? Should that subparagraph be understood to assert that there are no female employees who have "progress[ed] their careers" (whatever that might mean in practice) as quickly as any of their male counterparts; or that, on average, it takes female employees longer than it takes male employees to achieve certain (as yet unidentified) things?
27 Despite its size and undoubted resources, Qantas cannot fairly be expected to know with any precision - and certainly not the precision to which it is entitled - what it is that is hoped to be pressed against it. Nor can the court. Paragraph 80A of the Proposed FASOC purports to take an inherently uncertain and conclusory concept - "a workplace that was hostile to women" - and define it with others that are equally conclusory and just as uncertain.
28 The case that Ms Forshaw hopes to advance against Qantas is not to be tried in the court of public opinion, where the vibe or gist might suffice and the inconveniences of procedural fairness might more readily be dispensed with. Rather, it will be tried in a court of record, in which the weight of precedent rightly requires that litigants, no matter their size or resources, be afforded - and be entitled jealously to insist upon - a precise and intelligible articulation of the case that is pressed against them. Paragraph 80A of the Proposed FASOC is a very clear example of failure in that regard.
29 But, as with its predecessor, the problems with the Workplace Culture Plea do not end there.
30 Paragraph 80A serves merely to stand as a description of a state of affairs. It is that state of affairs that is later said (at paragraph 80B) to inhere in the injury or discrimination that is claimed to constitute the adverse action to which Ms Forshaw says that she was subjected. It is in paragraph 80AA of the Proposed FASOC that Ms Forshaw attempts to identify the conduct - that is to say, the acts or omissions that are ultimately attributable to Qantas - that she says brought about that state of affairs.
31 Anticipating the objections raised in respect of it, Ms Forshaw submits that 80AA of the Proposed FASOC should suffice as a statement of who, within Qantas, should be understood to have brought about the "Sexist Culture" that is the subject of paragraph 80A. To identify by name the specific "human actors" and the specific conduct in which each of them engaged would, she says, be "…an impossible task in circumstances where [she] cannot know the inner-workings of [Qantas] and which person failed to perform a specific function." Ms Forshaw's submission continues:
Given the statutory framework, it would make a mockery of s.361 of the Fair Work Act 2009 to require an Applicant, who may not know the inner-workings of a corporate respondent to identify the individuals within a group of people who may or may not have undertaken certain tasks or made decisions. For example, an applicant alleging that she was terminated by reason of pregnancy may not know the identity of the decision maker(s) within a corporate respondent. In the recent litigation involving the TWU v Qantas which has recently been the subject of a decision in favour of the Union by the High Court, the union did not know the identity of the decision maker and did not plead the name of any decision maker in its application.
32 Some reliance was also placed on the observations of Mason J in General Motors-Holden's Pty Ltd v Bowling (1976) 12 ALR 605 ("Bowling"). Speaking of a predecessor to s 361(1) of the FW Act, his Honour in that case noted (at 617) that:
…the plain purpose of the provision [is to cast] on to the defendant the onus of proving that which lies peculiarly within his own knowledge.
33 Ms Forshaw maintains, at least to a degree, that the conduct of individual Qantas officers that resulted in the tolerance of or failure to prevent the "Sexist Culture" described in paragraph 80A of the Proposed FASOC is peculiarly within Qantas's knowledge.
34 Ms Forshaw's submission may be understood as an attempt to address what was said (at [33]-[46]) in Forshaw No 1. There, the court was concerned to address what was then paragraph 80C of the ASOC, by which Ms Forshaw accused Qantas of creating, tolerating or failing to prevent the existence of a workplace that was hostile to women. For ease of reference, it repays to replicate some of the court's observations, namely:
33 …[T]he 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…
…
43 …[N]either 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...
…
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)... 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.
35 Respectfully, Ms Forshaw's attempts to address those observations are not compelling. The two examples that she cites in that endeavour - that of a pregnant former employee and that of ground crew workers previously engaged by Qantas - are inapt. Pleadings that allege the termination of an applicant's employment are rarely objected to. That, naturally enough, reflects the binary nature of dismissal: it is only in the rarest of cases that a respondent employer that stands accused of terminating an applicant's employment will have occasion to query what is put against it. In the vast majority of cases of that kind, the reality of dismissal is not a live issue.
36 So to observe, though, is not to doubt that the hypothetical employer in that scenario would be entitled to further precision upon request if it were required. In the face of such a request, it would - or might - be open to an applicant to provide additional detail once he or she has had an opportunity to benefit from the various facilitative processes for which the FCA Rules provide. Be that as it may, it remains the case that an employer is entitled to know, with the usual precision, the matters that are advanced against it. That extends to those aspects of a case that concern the attribution of relevant acts, omissions and states of mind of an employer's agents.
37 It is, then, of no moment that an employee who claims to have been dismissed by reason of pregnancy or an ability to partake of industrial activity may in some cases be able to press a general protections claim without first identifying the human officers through whom a corporate employer is alleged to have acted. Employers are not obliged to seek that clarity and there might well be forensic reasons not to. That there have been other matters in which employers have not sought to hold applicants to the conventional standards of pleading is not a circumstance from which Ms Forshaw can draw any comfort.
38 Here, of course, the adverse action that Ms Forshaw alleges is not nearly as clear cut as dismissal. The adverse action of which she complains inheres in Qantas's alleged tolerance of and/or failure to prevent the "Sexist Culture" that is the subject of paragraph 80A of the Proposed FASOC. The acts or omissions that might or might not accumulate to points that bespeak that tolerance or failure are far less clear than what might suffice to effect the termination of a person's employment.
39 The observations that I made in Forshaw No 1 (above, [34]) ring as true now as they did then. The Proposed FASOC does not identify - at least not with anything approximating the precision to which Qantas is entitled - the individual officers or employees of Qantas that did or did not do the things that are said to have resulted in the tolerance or failure that paragraph 80AA purports to articulate.
40 There are additional problems with paragraph 80AA. The first and most obvious concerns its rolled-up nature. It posits that each of those who, over the more than two decades that Qantas has employed Ms Forshaw, has served as:
(1) a member of Qantas's board;
(2) as its CEO or CFO; or
(3) as a direct report of its CEO,
failed in each of the three respects then identified in subparagraphs (a) through (c). Those failures are attributed to those people (whoever they might be) "separately and collectively".
41 Couched in those terms, paragraph 80AA of the Proposed FASOC is impossible to respond to in any sensible way. Is it suggested that those who were on the Qantas board in 1999, when Ms Forshaw was first employed (and a decade before the FW Act was enacted), failed collectively with those who now report to its chief executive officer? When and by what acts or omissions? Is it suggested that there were collective failures involving people who did not work for Qantas (or otherwise occupy offices on its board) at the same time? The allegation is so patently imprecise as to defy even the most conscientious attempt at rejoinder.
42 All the more is that so when one has regard to the three species of failure that are then set out in subparagraphs (a) to (c). Each is obviously and impermissibly vague. What is meant by a failure to "implement adequate policies"? How does one "implement" a "policy"? What policies or training would have been "adequate" for present purposes? What might suffice as "adequate…educat[ion]"? What "action" was "appropriate" to address "the matters in the Broderick Review". Qantas is left simply to guess what is meant on all of those fronts.
43 Further, paragraph 80AA of the Proposed FASOC draws back to the state of affairs described with an equal if not greater want of clarity in paragraph 80A. The result is imprecision squared. No respondent - not even one as large and well-resourced as Qantas - could possibly begin to know how to respond to what is alleged by paragraph 80AA.
44 I should say something about Bowling. The observation of Mason J (above, [32]) concerned s 5(4) of the Conciliation and Arbitration Act 1904 (Cth). That section, a predecessor to s 361(1) of the FW Act, served to create a statutory presumption as to the reason or reasons for which conduct might be understood to have transpired. His Honour's observation concerned the evident purpose by which the enactment of the section was animated. It cannot be understood as acceptance of the proposition that the rebuttable presumption extends to the proof of - much less that it relieves of an obligation properly to allege - the conduct by reason of which an applicant claims to have been subjected to adverse action (or its statutory antecedents).
45 So much is made clear by the terms of the section to which his Honour was referring. Section 5(4) of the Conciliation and Arbitration Act 1904 (Cth) provided as follows:
In any proceeding for an offence against this section, 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.
46 Immediately, it is clear that the regime under consideration in Bowling did not envisage that the statutory presumption should extend to proof of a respondent's conduct.
47 Likewise, s 361(1) does not operate with that effect. Rather, it "…is intended to alleviate the difficulties of proof by one party of the state of mind or motivation of another": Construction, Forestry, Mining and Energy Union v Coal and Allied Operations Pty Ltd (1999) 140 IR 131, 167 [161] (Branson J - her honour was there speaking of s 298V of the Workplace Relations Act 1996 (Cth), which was in materially identical terms to s 361(1) of the FW Act). It has always been and it remains for an applicant in a general protections matter to allege with conventional precision (and, indeed, to prove) both his or her subjection to conduct that qualifies as adverse action under s 342(1) of the FW Act, and the attribute or circumstance by reason of which it is alleged that that conduct was engaged in: Transport Workers' Union of Australia v Qantas Airways Limited (2021) 308 IR 244, 310 [215]-[216] (Lee J); Tattsbet v Morrow (2015) 233 FCR 46, 75-76 [119] (Jessup J, Allsop CJ and White J agreeing). Only once it is established that adverse action has been taken (a fact that must be pleaded and proved in the usual way) will it be presumed that it was taken for the reason alleged: Herbert v Star Aviation Services Pty Ltd [2019] FCA 239, [13] (Flick J).
48 Neither the tolerance of nor the failure to prevent the "Sexist Culture" to which Ms Forshaw points - or, more precisely, the constituent acts or omissions that might have resulted therein - are matters that are peculiarly within the knowledge of Qantas's employees or officers. Unlike a state or states of mind - which, by definition, form peculiarly in respect of particular conduct within the conscience or consciences of those who engage in it - the acts and omissions of relevance in this matter can, like any other conduct, be interrogated as a matter of historical reality.
49 Paragraph 80AA is unambiguously objectionable. Leave to file the pleading should be refused at least for that reason.
50 Paragraph 80B of the Proposed FASOC pleads that the conduct that is the subject of paragraph 80AA was sufficient to injure Ms Forshaw in her employment, or otherwise to discriminate against her relative to her male co-workers. I confess, at the outset, some difficulty in following how that is to be put. It is not apparent at this juncture that Ms Forshaw might be thought to have suffered any injury, or to have been discriminated against, merely by reason of the existence of a workplace culture (as opposed to any instances of poor conduct that might, from time to time, be thought to reflect it, which plainly could suffice). That is something that Ms Forshaw would need to make clear at trial.
51 Nonetheless (and leaving aside what has already been said about paragraph 80AA), from a pleadings viewpoint, paragraph 80B of the Proposed FASOC seems unobjectionable. It posits that the conduct earlier alleged to have occurred (the tolerance of and failure to prevent the "Sexist Culture") brought consequences for Ms Forshaw and that those consequences sufficed to characterise that conduct as adverse action within the meaning attributed to that phrase by s 342(1) of the FW Act. There is nothing necessarily unorthodox about that.
52 Paragraph 80C then purports to identify the proscribed reason that is said to have animated that adverse action (and, thereby, to have made it unlawful under pt 3-1 of the FW Act). It posits that the effects described in paragraph 80B of the Proposed FASOC (injury in employment and discrimination relative to male co-workers) were consequences of Ms Forshaw's gender.
53 Qantas attacks that plea on two fronts. First, it contends that "gender" is not the same as "sex" and is not an attribute that is protected by s 351(1) of the FW Act. I can address that swiftly - and without commentary upon any distinctions that separate the two concepts. It is plain beyond doubt that Ms Forshaw means, by paragraph 80C of the Proposed FASOC, to contend that the injury and discrimination set out in paragraph 80B arose because she is a woman.
54 The bigger concern (and Qantas's second line of attack) is that paragraph 80C of the Proposed FASOC is founded upon a misunderstanding of how pt 3-1 of the FW Act operates. Section 351(1) does not prohibit conduct that has the effect of injuring women in their employment or visiting upon them discriminatory consequences on account of their sex. It prohibits conduct that visits injurious or discriminatory impacts if, and only if, it is taken against a person because he or she possesses a prescribed attribute. It is not merely the effects of identified conduct that bring it within the realm of what is actionable under pt 3-1 (and s 351(1)) of the FW Act. The proscribed subjective motivations must also be present.
55 Paragraph 80C of the Proposed FASOC, then, is very plainly inadequate to establish any cause of action under s 351(1) of the FW Act. Nowhere does it (or any other paragraph) allege that any of the officers identified in paragraphs 4A and 80AA - that is, any of the board members, CEOs, CFOs or CEO direct reports that Qantas has engaged since 1999 - did anything, by act or omission, alone or in concert, because Ms Forshaw is a woman.
56 Ms Forshaw's case concept is simple enough. She seeks to hold Qantas accountable for the "Sexist Culture" that she alleges has developed through executive acquiescence or indifference. In simple terms, her suggestion is that Qantas has failed its female employees in some ways. It is, perhaps, a simple case to prosecute in the court of public opinion and perhaps it is actionable under other statutory causes; but it is yet to be shown as a case theory that can be shoehorned into the shape of something that s 351(1) proscribes. If Ms Forshaw has a basis for alleging that Qantas employees or agents have taken action against her because she is a woman, then she should say so. In its present form, paragraph 80C of the Proposed FASOC does not assist in disclosing any maintainable cause of action under s 351(1) of the FW Act. It is plainly objectionable for that reason; and leave to file the Proposed FASOC should be withheld on that (additional) basis.
57 Equivalent observations may be made about paragraph 80D of the Proposed FASOC. It purports to tie together the conduct identified in paragraph 80AA, the effects identified in paragraph 80B and the proscribed attribute identified in paragraph 80C. Given what I have said about paragraphs 80AA and 80C, paragraph 80D is unsalvageable.
58 But there is, at least potentially, a further problem.
59 Paragraph 80D of the Proposed FASOC purports to attribute to Qantas "the conduct of the Board, the CEO, the CFO, and the Direct Reports". That attribution is said to be possible "[b]y reason of the matters pleaded in paragraph 65 above". Insofar as concerns their conduct, paragraph 65(a) of the Proposed FASOC appears unobjectionably to mirror the effect of s 793(1) of the FW Act. That being so, the attribution of conduct alleged by paragraph 80D seems orthodox.
60 Insofar as concerns the attribution of states of mind, however, paragraph 65(b) of the Proposed FASOC travels beyond the observable limits of s 793(2) of the FW Act. Section 793(2) of the FW Act does not operate generally to attribute to bodies corporate the states of mind possessed by their agents, employees or officers. It does so only when it is necessary under the FW Act or associated rules to establish a corporate state of mind; and only then "in relation to particular conduct". Thus, if it is necessary to do so - for example, as here, for the purposes of assessing whether s 351(1) of the FW Act has been contravened - the state of mind of a body corporate "in relation to particular conduct" can be established by showing the state of mind of the person or people who engaged in it. By s 793(2) of the FW Act, the states of mind of those people are attributed to the body corporate in relation to (and only in relation to) that conduct.
61 Paragraph 65(b) of the Proposed FASOC contemplates a general attribution to Qantas of the states of mind of the officers that it identifies. In so doing, it misstates the words and effect of s 793(2) of the FW Act.
62 It is difficult to know how (or whether, or the extent to which) that reality bears upon what is pleaded at paragraph 80D of the Proposed FASOC. By its terms, that paragraph does not purport to attribute to Qantas the states of mind of any individual agents. If Ms Forshaw is to maintain against Qantas a cause of action under s 351(1) of the FW Act, she will need to establish (at least by alleging) a corporate state of mind. Insofar as she might seek to establish one by relying upon s 793(2) of the FW Act, she will only be able to do so "in relation to particular conduct". She will not be able to do so in the more generalised way that paragraph 65(b) of the Proposed FASOC contemplates. She will not, for example, be able to establish (at least not by application of s 793(2) of the FW Act) that Qantas proceeded with the state of mind possessed by one person to engage in conduct that was effected wholly by (or without any material influence from) somebody else.
63 During the hearing of the interlocutory application, counsel for Ms Forshaw acknowledged that it was not her intention to attribute states of mind in that generalised way; so perhaps the issue is not as significant as it appears potentially to be on the face of the Proposed FASOC. Regardless - and on the assumption that some further refining of the pleading is to be attempted - it might be something to which attentions can turn.
64 The Workplace Culture Plea remains objectionable in its proposed form. As a whole, it is embarrassing and it fails to disclose a reasonable cause of action. Although discrete elements of it might survive if looked at in isolation, the constituent parts only sensibly work as part of a whole. Nothing about paragraphs 80A to 80D of the Proposed FASOC is salvageable and the application for leave to amend must, therefore, fail.