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[2018] FCA 2083
plaintiff. Leave granted to make application pursuant to s 46PO(1); originating application treated as filed with leave pursuant to s 46PO(3A); applicant to file outline of case by 14 February 2019;...
David James, who is legally blind and autistic, works packing boxes for WorkPower Inc but is paid only a fraction of the award wage because of a special assessment tool designed for supported employees. He complained to the Australian Human Rights Commission that the tool and the way it measured his skills discriminated against him. The Commission dismissed the complaint as misconceived, mainly because it thought the wrong industrial agreement and the wrong tool had been named. James then asked the Federal Court for permission to bring his discrimination case. Justice Mortimer decided the arguments were arguable enough to proceed to a full hearing even though there were disagreements about exactly which award applied and whether the tool used was the same as the one complained about. The judgment stresses that at the leave stage the Court checks only that the case is not hopeless or imaginary; it does not decide who wins. Leave was granted, the filing was backdated, and the case was given directions to continue.
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David James, by his mother as litigation representative, is legally blind and has been diagnosed with high functioning autism. He is employed by WorkPower Inc as a factory hand whose role is to pack boxes. In 2017 he lodged a complaint with the Australian Human Rights Commission alleging that the calculation of his wages involved unlawful discrimination on the ground of disability contrary to the Disability Discrimination Act 1992 (Cth). The complaint focused on the respondent's use of a wage assessment tool known as the Greenacres Competency Based Wage System Assessment Tool. It particularised nine distinct categories of alleged discrimination plus a rolled-up allegation that the tool delivered wages that reduced Mr James' pay more than was necessary and did not meaningfully examine his productive output ([9]-[10]).
The Commission terminated the complaint on 26 February 2018 under s 46PH(1B)(a) of the Australian Human Rights Commission Act 1986 (Cth) on the basis that it was misconceived or lacking in substance. The delegate's letter stated that Mr James' employment was covered by the Workpower Agreement rather than the Supported Employment Services Award 2010 and that wages were assessed using Workpower's own Wage Assessment System rather than the Greenacres tool. The delegate also noted that any alleged discrimination might be exempted by the operation of s 47(1)(c) of the Disability Discrimination Act 1992 (Cth). Importantly, the delegate did not address the broader categories of allegation concerning transparency, lack of independence, pre-classification, the inclusion of "task skills" and "underpinning work skills", or the potential of the Supported Wages System to produce a fairer outcome ([13]-[14]).
Mr James commenced proceedings in the Federal Court by filing an originating application on 13 April 2018. Because the complaint had been terminated under s 46PH(1B)(a), s 46PO(3A)(a) required the Court to grant leave before the application could be made. The filing occurred without prior leave having been sought. The respondent opposed leave. Both parties filed affidavits and written submissions and consented to the application being determined on the papers. The respondent objected to the second affidavit of the applicant's solicitor, Kairstien Wilson, on relevance and opinion evidence grounds under s 76 of the Evidence Act 1995 (Cth). Mortimer J overruled that objection, holding that evidence of the nature and extent of Mr James' disabilities was relevant to the leave application and that Ms Wilson was qualified to express the opinions contained in the affidavit for that limited purpose ([51]).
After reviewing the complaint, the termination letter, the parties' evidence and submissions, Mortimer J concluded that the claims were reasonably arguable and not fanciful. Leave was granted, the originating application was regularised as having been filed with leave on 13 April 2018, and directions were made for the filing of outlines of case and a case management hearing ([52]-[56]).
Mortimer J began by locating the leave discretion within its statutory context. Until April 2017 a person whose complaint had been terminated by the Commission had an entitlement to commence proceedings in the Federal Court or Federal Circuit Court. The 2017 amendments introduced the leave filter in s 46PO(3A) for complaints terminated on grounds other than public importance (s 46PH(1)(h)) or mandatory termination for no reasonable prospect of conciliation (s 46PH(1B)(b)). The provision therefore operates as a deliberate screening mechanism sitting alongside the longstanding subject-matter constraint in s 46PO(3) ([16]-[32]).
The judge identified the governing consideration as the interests of the administration of justice, but emphasised that the content of that concept varies with the power in question. Here the clear parliamentary purpose was to filter out complaints whose merits were disproportionate to the resources required for a full proceeding. That purpose must be given weight. At the same time, the text, context and purpose of s 46PO(3A), read with s 46P(1A)'s requirement that it be reasonably arguable that the alleged acts are unlawful discrimination, indicated that the bar is not set particularly high. The Court is to ask whether the claims are reasonably arguable and, at the least, not fanciful ([31]-[37]).
A non-exhaustive list of permissible considerations was identified, including the importance of the subject matter to the parties, the seriousness and continuing nature of the alleged discrimination, the thoroughness of the Commission's consideration of the merits, delay, any extra-Commission attempts to resolve the allegations, factual and legal complexity, issues of public importance or general application, and prejudice ([38]). Mortimer J stressed that it would be a denial of procedural fairness and a misunderstanding of the leave role to conduct a mini-trial of the merits. Questions of fact and law that are arguable must be left for trial, including by separate question if appropriate ([39]).
Applying that framework, the Court found several live controversies. First, there was a genuine debate about which industrial instrument applied. The applicant contended that the Supported Employment Services Award 2010 covered Mr James by virtue of s 48(1) of the Fair Work Act 2009 and cl 4.1 of the Award, while accepting that the Workpower Agreement (a preserved collective State agreement) also applied by operation of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009. The Commission had treated the point as straightforward; the Court held it was not. Coverage questions of this complexity should be resolved at trial, not on a leave application ([41]-[43]).
Second, the relationship between the Greenacres tool and the Workpower Wages Assessment System was contested. The respondent's own response to the Commission had stated that its system was "modelled on the Greenacres Tool" and that it had no role in the design of Greenacres. A side-by-side comparison revealed considerable commonalities. While differences existed, it was arguable that the two tools were in substance the same for the purposes of the discrimination allegations. The Commission had not explained its contrary conclusion. Again, the point was not fanciful and possessed a rational factual substratum; it was inappropriate to determine it on the leave application ([44]-[48]).
Third, the potential operation of the s 47(1)(c) exemption raised questions of construction, in particular the meaning of "in direct compliance" and the requirement that wages be "determined by reference to the capacity of the person". Mr James contended that the tool did not accurately or fairly measure his capacity. These were arguable issues for trial ([49]).
Finally, any argument that the eventual statement of claim would travel outside the bounds of s 46PO(3) was premature. The factual substratum remained the same and the original complaint had been expressed in broad terms. Once particularised pleadings were filed the respondent could test the point, but it did not bar leave at this stage ([50]).
Because the claims met the reasonably arguable and not fanciful threshold, and having regard to the interests of justice, leave was granted. The proceeding was back-dated to regularise its status and directions were given to bring it to a hearing efficiently ([52]-[56]).
Prior to the 2017 amendments, once the President had terminated a complaint under s 46PH and issued a notice under s 46PH(2), any affected person had a statutory right under the then s 46PO(1) to commence proceedings in the Federal Court or Federal Circuit Court within 60 days (or such further time as allowed). The only substantive limit was the requirement in s 46PO(3) that the unlawful discrimination alleged in the court proceeding be the same as, or arise out of the same acts, omissions or practices that were the subject of the terminated complaint. There was no additional leave filter.
The introduction of s 46PO(3A) in 2017 changed that position for complaints terminated on most grounds. Leave is now mandatory unless the termination was on public importance grounds (s 46PH(1)(h)) or because there was no reasonable prospect of settlement by conciliation (s 46PH(1B)(b)). The simultaneous insertion of s 46P(1A), requiring that it be reasonably arguable that the alleged acts constitute unlawful discrimination, reinforced the gate-keeping function at both Commission and Court levels.
This judgment is the first detailed Federal Court consideration of the new leave requirement. It construes s 46PO(3A) as a filter whose height is set by the "reasonably arguable and not fanciful" formulation drawn from s 46P(1A). The decision makes clear that the leave stage is not a surrogate for a summary dismissal application or a preliminary trial. It also confirms that the pre-existing s 46PO(3) limit continues to operate but that its application should ordinarily await properly particularised pleadings. The judgment therefore both narrows the gateway to court proceedings and simultaneously protects access to justice by preventing the leave discretion from being used to pre-empt arguable claims.
Paragraph [37]: "I am satisfied that the text, context and purpose of the leave requirement in s 46PO(3A) suggests that it is appropriate for the Court to consider in determining whether to grant leave whether the claims made by an applicant are reasonably arguable, and are - at the least - not fanciful. This is consistent with the language used in s 46P(1A). I do not consider, read in context, that s 46PO(3A) sets the bar particularly high: the purpose of the provision is to act as a filter to preclude complaints whose merits are disproportionate to the time and resources likely to be consumed by dealing with them in a whole proceeding, but not to impose a barrier of any substantively greater level."
Plain-English translation: The judge is saying the new leave test is deliberately modest. The Court simply asks whether the case has a real argument behind it and is not nonsense. Parliament wanted to stop hopeless cases wasting everyone's time, but did not want to make it almost impossible for genuine complaints to reach a judge.
Paragraph [39]: "It would be a denial of procedural fairness to an applicant at the very least and, in my opinion, a misunderstanding of the role to be played by the leave requirement in s 46PO(3A), if the Court were to embark on a detailed consideration and determination of the merits of the applicant's underlying arguments about unlawful discrimination. Questions of fact, and questions of law, which are arguable are to be determined at trial, subject to any Court-directed processes such as the stating of a separate question under r 30.01 of the Federal Court Rules."
Plain-English translation: It would be unfair to decide the whole case at the leave stage. That is not what Parliament intended. If there is a real dispute about the facts or the law, that dispute should be decided at a proper trial, not in this early hearing.
Paragraph [32]: "The purpose of the leave discretion, taking into account its text and context, is to provide a filter. It removes what was previously an entitlement to bring a proceeding in this Court once the Commission has terminated a complaint. It sits alongside the limits which have always been imposed by s 46PO(3), themselves aimed at constraining the subject matter of proceedings under s 46PO to the substance of what was before the Commission."
Plain-English translation: Before 2017 you could sue automatically after the Commission finished with your complaint. Now you need permission. The permission rule works together with the old rule that says your court case cannot be about something completely different from what you told the Commission.
Paragraph [43]: "Coverage of an award is a matter of some legal and factual complexity which should be determined at trial. The answer should not be determined at the leave stage: that is not the purpose of s 46PO(3A). Its purpose is not to compel this Court to determine substantive issues of fact and law in deciding whether to grant leave. Rather its purpose is to allow the Court to filter out plainly unmeritorious complaints where the arguments are fanciful, or so obviously misconceived that what is being suggested by the applicant should not be entertained by the Court - whether because they are not arguable as a matter of law, or because there is no rational factual sub-stratum for the allegations, or because there is no utility in the proceeding."
Plain-English translation: Deciding exactly which industrial award covers Mr James is complicated. That is a job for the trial judge, not for a leave hearing. The leave hearing's only job is to weed out complaints that are obviously hopeless or imaginary.
This judgment will be triggered whenever an affected person seeks leave under s 46PO(3A)(a) after the Commission has terminated a complaint under s 46PH(1B)(a) on the ground that it is misconceived or lacking in substance. The paradigm case will involve allegations of unlawful discrimination (most commonly under the Disability Discrimination Act 1992 (Cth)) that raise one or more of the following features: (1) a dispute about the identification of the industrial instrument said to govern the employment relationship; (2) a contest about which wage assessment tool was in fact applied and whether that tool is materially the same as, or modelled on, a tool expressly named in the complaint; (3) allegations that the chosen tool incorporates criteria (such as "task skills" or "underpinning work skills") that are not used to set wages for non-disabled workers in open employment; (4) claims that the tool pre-classifies disabled workers at a low percentage of the award rate irrespective of actual productivity; and (5) arguments about the availability and proper construction of the s 47(1)(c) exemption, particularly the phrases "in direct compliance" and "determined by reference to the capacity of the person".
The precedent is engaged where the Commission has dealt only with "preliminary points" and has not engaged with the substantive merits of the broader allegations. It is also engaged where the respondent contends that the court proceeding travels outside s 46PO(3) but the applicant can point to a common factual substratum and breadth in the original complaint. The judgment makes clear that complexity of industrial law questions, contested evidence about the operation of assessment tools, and the need for expert evidence on disabilities are all factors that point toward granting leave rather than refusing it at an interlocutory stage. Conversely, the precedent would not assist a complaint that is purely vexatious, trivial, or entirely lacking any rational factual foundation.
Although the judgment itself post-dates the 2017 amendments and is the first Federal Court decision to analyse s 46PO(3A) in any depth, it expressly draws on and applies earlier authority to shape its approach. It cites Nojin v Commonwealth of Australia [2012] FCAFC 192; 208 FCR 1 at [8] for the proposition that use of the predecessor BSWAT tool had been found by a Full Court to involve unlawful discrimination against certain workers with disabilities. That citation is used to explain the historical context of Mr James' complaint and to illustrate that complaints about wage assessment tools for disabled workers can raise serious and non-fanciful issues.
The judgment also relies on its own earlier decisions in Stepien v Department of Human Services [2018] FCA 1062 at [25] (extension of time factors), Kaur v Minister for Immigration and Border Protection [2015] FCA 584; 233 FCR 507 at [28]-[31] and DJS16 v Minister for Immigration and Border Protection [2018] FCA 2037 at [27] to reinforce the principle that a leave discretion should not be conflated with a final merits hearing. Eastman v Shamrock Consultancy Pty Ltd [2018] FCCA 3436 is noted as the only Federal Circuit Court decision on the new leave requirement up to that point ([22]).
The present judgment therefore treats these authorities as supplying the methodological framework for the new statutory discretion: a focus on arguability, avoidance of premature merits determination, and due weight to the filter purpose. By doing so it both follows the ratio of the earlier cases on the proper role of interlocutory discretions and applies that learning to the specific text and purpose of s 46PO(3A). The judgment's own reasoning on the non-exhaustive list of relevant factors at [38] and the limited role of the Court at [39] is expressed in terms that later courts can readily adopt when faced with similar leave applications.
The judgment leaves several important questions for later determination at trial. First, the precise meaning of "in direct compliance" in s 47(1)(c) of the Disability Discrimination Act 1992 (Cth) remains unresolved. Mortimer J notes that this phrase, together with the requirement that wages be "determined by reference to the capacity of the person" in s 47(1)(c)(iv), will require construction where an applicant contends that the chosen assessment tool does not in fact measure capacity accurately or fairly ([49]).
Second, the boundary between the Greenacres tool and the Workpower Wages Assessment System is left open. Although the respondent's own Commission response stated that its system was "modelled on" Greenacres and incorporated it, the degree of identity or difference that is legally significant for discrimination purposes is a matter for evidence at trial ([46]-[48]).
Third, the exact scope of the s 46PO(3) constraint once pleadings are filed is expressly reserved. The respondent's argument that the originating application and the relief sought travel outside the terminated complaint is described as "premature". Once the applicant files a properly particularised statement of claim or outline of case, the Court will be in a position to decide whether the allegations remain "the same as (or the same in substance as)" the complaint or arise out of the "same (or substantially the same) acts, omissions or practices" ([50], [23]).
Fourth, the judgment flags that the Court may need to clarify its own processes so that applications for leave under s 46PO(3A) are considered at the filing stage rather than after a proceeding has been accepted and docketed ([53]). How that administrative change will operate in practice is left for future case management.
Finally, the precise weight to be given to each of the non-exhaustive factors listed at [38] in different factual settings, and the interaction between the leave discretion and the overarching purpose provisions in ss 37M and 37N of the Federal Court of Australia Act 1976 (Cth), will no doubt be tested in subsequent matters. The present decision provides a clear framework but does not purport to be exhaustive.
MORTIMER J: 1 The applicant, by his litigation representative, who is his mother, seeks leave to commence this proceeding, pursuant to the requirement in s 46PO(3A)(a) of the Australian Human Rights Commission Act 1986 (Cth). 2 The application is supported by three affidavits of Kairstien Wilson dated 22 June 2018, 24 August 2018 and 4 December 2018. 3 The respondent, Workpower Inc, is the applicant's employer. Workpower opposes the application for leave and relies on two affidavits: that of Vikki Maree Lahore dated 14 September 2018 and that of Abigail Caitlin Cooper dated 13 September 2018. Workpower objects to the second affidavit of Ms Wilson being read and relied upon on the leave application, on the basis that it is irrelevant to the interlocutory application and further that some paragraphs are inadmissible pursuant to s 76 of the Evidence Act 1995 (Cth). I deal with that objection below. 4 Each party made written submissions, and was content for the application to be determined on the papers. I have considered the evidence and the parties' submissions, and refer to them below where necessary. 5 For the reasons set out below, the leave application will be granted.
Relevant background 6 Mr James is legally blind and is autistic. He has been diagnosed as having what is described as high functioning autism. He works for the respondent in the role of a factory hand/assembly worker. As the Australian Human Rights Commission complaint filed on his behalf frankly states: "[h]e is employed to pack boxes". 7 His complaint to the Commission related to the amount he received by way of wages for his employment with the respondent. Mr James challenged the way his wages are calculated, in particular (but not only) the respondent's use of a wage assessment tool called the Greenacres Competency Based Wage System Assessment Tool. I shall call this the "Greenacres tool" in these reasons. 8 As Mr James' complaint to the Commission makes clear, Mr James' wages were formerly assessed using the Business Services Wage Assessment Tool (BSWAT), which ceased to be used in December 2012. The use of BSWAT had been found by a Full Court of this Court to involve unlawful discrimination against some workers with disabilities: see Nojin v Commonwealth of Australia [2012] FCAFC 192; 208 FCR 1 (Buchanan and Katzmann JJ, Flick J dissenting). Mr James contended that the Greenacres tool replaced BSWAT in the calculation of his wages by the respondent. 9 Mr James alleged in his complaint to the Commission that the use of the Greenacres tool to calculate his wages involved unlawful discrimination. That was not the only allegation of unlawful discrimination in his complaint. His complaint covered, in summary, the following categories of allegations of unlawful discrimination: (1) The wage assessment was undertaken by an employee of the respondent rather than an independent person, took over a year to complete and lacked transparency; (2) Mr James was made to sign the assessment even though he is blind and his brother has a power of attorney; (3) Mr James' wages do not reflect his move to a Level B position; (4) The Greenacres tool fails to provide a reasonable measure of productivity for Mr James, who is entitled to be paid by reference to his productivity; (5) Under Greenacres, Mr James' pay rate is restricted to a range of 15% to 20% of Grade 2 of the award rate before any assessment of his work performance occurs; (6) As an element of Greenacres, Mr James is subjected to an assessment of "task skills" that workers with or without disability are not subject to in determining award wages for this type and level of work in the regular labour market (open employment); (7) Mr James is also subject to an assessment of "underpinning work skills" (independent work practice, working consistently, flexibility, quality control, workplace health and safety, and teamwork). Workers with or without disability are not subject to an assessment of these matters in determining award wages for this type and level of work in the regular labour market. While these skills may be important, they are not a measure of "work value" and should not be included in a wages assessment for a worker with a disability when they are not included in the wages assessment for workers without a disability. (8) Workers such as Mr James are "pre-classified" under the Greenacres tool with pre-determined wages less than 55% of the Grade 2 rates, which means that under the Greenacres tool, no matter what their productivity, they are unable to progress to higher wage levels; (9) An alternative assessment tool - the Supported Wages System- would deliver a fairer outcome to a person with Mr James' disabilities working in the kind of job he is working in. The complaint alleged that if Mr James was assessed on "straight productivity, such [as] under SWS", he would have the potential to earn a higher wage as the Supported Wages System has "the based wage rates from 10% through to 90% of the award". 10 There was also this, admittedly somewhat 'rolled up' allegation at the start of the complaint: It is alleged that the use of Greenacres by the Respondent to assess David's wage has meant that he has not received a fair and equitable wage in comparison to the full Award wage. Further, it is believed by the Applicant that Greenacres is structured to deliver wages that reduce David's wage more than what is necessary. The predetermined sub-award classification, and the testing of competencies by Greenacres, does not add any meaningful examination of David's productive output for the job tasks he is employed to perform. 11 While the submissions put on his behalf on the leave application focus on indirect discrimination by reason of the operation of the competency assessment aspects of the Greenacres tool, it is fair to say that Mr James would, subject to the grant of leave, be able to plead and conduct a proceeding in this Court of much more breadth, covering all of the kinds of unlawful discrimination he raised at the Commission, and which I have attempted to outline above. 12 To this stage, given the need to appoint a litigation representative, the time the applicant's legal representatives took to arrange this, and then the issue of leave, there has been no substantive case management of this proceeding, nor have the parties been asked to file and serve pleadings or outlines of case. The nature of the case which Mr James is able to put in this Court can, and in my opinion should, be determined by reference to the subject matter of his complaint to the Commission. The respondent appears to accept this, albeit it relies on this point for a different purpose in its submissions.
The Commission's reasons for termination of the complaint 13 The Commission's reasons are contained in the letter accompanying its notice of termination dated 26 February 2018. In her letter, the delegate of the President states: I have considered all the information that has been provided and I wish to advise that I have decided to terminate the complaint under section 46PH(1B)(a). … The information currently before the Commission supports that (a) Mr James' employment is covered by the Workpower Agreement rather than the SESA and (b) that Mr James' wages are not assessed using Greenacres, but rather, are assessed using Workpower's Wage Assessment System in the Workpower Agreement. … I also note that the information before the Commission suggests that any alleged unlawful discrimination in the application of the Wage Assessment System to determine Mr James' wages may not be unlawful discrimination due to the application of section 47(1)(c) of the DDA. 14 Section 47(1)(c) of the Disability Discrimination Act 1992 (Cth) provides that an act of discrimination is not unlawful if it is done in direct compliance with: (c) an instrument (an industrial instrument) that is: (i) a fair work instrument (within the meaning of the Fair Work Act 2009); or (ii) a transitional instrument or Division 2B State instrument (within the meaning of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009); to the extent to which the industrial instrument has specific provisions relating to the payment of rates of salary or wages to persons, in circumstances in which: (iii) if the persons were not in receipt of the salary or wages, they would be eligible for a disability support pension; and (iv) the salary or wages are determined by reference to the capacity of the person. 15 Thus, it is apparent that the Commission did not make findings that all of the allegations made on behalf of Mr James, and which I have summarised above, were misconceived or lacking in substance. The delegate simply did not address them. Instead, she terminated the complaint as misconceived on the basis of what were plainly thought by the delegate to be "preliminary points", concerning the identification of the wages assessment tool used by the respondent to assess Mr James' wages, and the industrial instrument which governed his employment.
The requirement for leave 16 Until April 2017, persons claiming to have been subject to unlawful discrimination and who had been through the conciliation process set out in the AHRC Act had a right to issue proceedings in this Court once their complaint to the Commission had been terminated. 17 In 2017 this position was changed, and the leave requirement in s 46PO(3A) was introduced. 18 Sections 46PO(1)-(3A) provide: (1) If: (a) a complaint has been terminated by the President under section 46PE, paragraph 46PF(1)(b) or section 46PH; and (b) the President has given a notice to any person under subsection 46PH(2) in relation to the termination; any person who was an affected person in relation to the complaint may make an application to the Federal Court or the Federal Circuit Court, alleging unlawful discrimination by one or more of the respondents to the terminated complaint. Note: Part IVA of the Federal Court of Australia Act 1976 allows representative proceedings to be commenced in the Federal Court in certain circumstances. (2) The application must be made within 60 days after the date of issue of the notice under subsection 46PH(2), or within such further time as the court concerned allows. (3) The unlawful discrimination alleged in the application: (a) must be the same as (or the same in substance as) the unlawful discrimination that was the subject of the terminated complaint; or (b) must arise out of the same (or substantially the same) acts, omissions or practices that were the subject of the terminated complaint. (3A) The application must not be made unless: (a) the court concerned grants leave to make the application; or (b) the complaint was terminated under paragraph 46PH(1)(h); or (c) the complaint was terminated under paragraph 46PH(1B)(b). 19 There is no dispute between the parties that the applicable provision is s 46PO(3A)(a). 20 Section 46PH(1)(h) relates to circumstances where the President is satisfied that the subject matter of the complaint involves an issue of public importance that should be considered by the Federal Court or the Federal Circuit Court. That was not the basis for termination in this proceeding. 21 Section 46PH(1B)(b) relates to circumstances where the President is required to terminate a complaint because the President is satisfied there is no reasonable prospect of the matter being settled by conciliation. That was not the basis of the termination of the complaint by the Commission in this proceeding either. 22 There does not appear to have been any judicial consideration of this leave requirement in this Court, and only one case in the Federal Circuit Court: see Eastman v Shamrock Consultancy Pty Ltd [2018] FCCA 3436.
The terms of s 46PO(3) 23 The respondent also raises, in its opposition to the leave application, the terms of s 46PO(3). The respondent submits that: This new complaint is not the same as (or the same in substance as) the unlawful discrimination that was the subject of the terminated complaint and does not arise out of the same (or substantially the same) acts, omissions or practices that were the subject of the terminated complaint. The factual substratum alleged is entirely different. The tool alleged to be discriminatory is different (the Workpower System not Greenacres) The tools have fundamental differences and provide different outcomes. Equally, the industrial instrument terms under which the Applicant is alleged to be employed are different (the Workpower Agreement and not the Award). That the application seeks to bring an entirely different application to the Court is clear from the relief sought in the Originating Application. In circumstances where the relief sought includes that "the Respondent acknowledges the inequities of [Greenacres] and withdraws its use at the workplace on the basis that the tool lacks validity, equity and transparency" and "[Greenacres] is removed from any process involved in assessments in [ADE's]" the relief sought in the Originating Application has no relevance to the new claims. (citations omitted)
The parties' arguments in summary 24 Noting the breadth of the discretion to grant leave, the applicant submits there are at least four factors relevant to the exercise of the Court's discretion: (1) whether the applicant has an arguable case; (2) the prospects of success if leave is granted; (3) not introducing barriers to access to justice; and (4) whether it is likely to be in the interests of the administration of justice for leave to be granted so that the Court can finally determine the rights of parties on arguments it has assessed as having some prospects of success. 25 These proposed factors are drawn, it appears, from the nature of the discretion, and are expressed as relying on my reasons for decision on discretion to extend time in Stepien v Department of Human Services [2018] FCA 1062 at [21]. 26 The respondent submits that in exercising the discretion to grant leave, the question to be answered is whether the complaint has a reasonable prospect of success, which it contends, Mr James' complaint does not. 27 The respondent contends that: (1) Correctly, the Commission determined that the applicant's employment is covered by the Workpower Inc Supported Employees Wage Agreement 2004 (the Workpower Agreement) and not the Supported Employment Services Award 2010 as the applicant contended in his complaint to the Commission; and (2) The applicant's wages are not assessed using the Greenacres tool, but rather using Workpower's Wage Assessment System. 28 Accordingly, the respondent says these two misconceptions about the underlying circumstances of the respondent's conduct towards the applicant mean that the complaint is misconceived and the Commission was correct to terminate it on that basis. 29 The respondent also contends that insofar as the applicant seeks to amend his complaint to rely on the Workpower Agreement and the Workpower assessment tool, this Court has no jurisdiction to deal with that complaint because it is not in substance the same complaint as that made to the Commission. The respondent relies on the terms of s 46PO(3) of the AHRC Act. 30 The respondent expressly disputes the relevance of the factor identified by the applicant as "barriers to access to justice". It submits that the express purpose of s 46PO(3A) is to create such a barrier.
resolution 31 Like other judicial discretions empowering leave to be granted to a party to take a step in a proceeding (eg to serve out of the jurisdiction or to issue a subpoena: see rr 10.43(2) and 24.01 of the Federal Court Rules 2011 (Cth)) or to issue a proceeding (eg in relation to vexatious litigants or where leave is required to appeal: see ss 37AR and 24(1A) of the Federal Court of Australia Act 1976 (Cth), the interests of the administration of justice will be a governing consideration in the way the discretion falls to be exercised. However, how the assessment of what is in the interests of the administration of justice is to be undertaken will vary depending on the nature of the power in issue, and the circumstances which give rise to a request for its exercise. Here, as the respondent submits, the imposition of a leave requirement in certain circumstances by the amendments to s 46PO in 2017 had a clear purpose. Any consideration of where the interests of the administration of justice lie must recognise and give weight to that purpose. 32 The purpose of the leave discretion, taking into account its text and context, is to provide a filter. It removes what was previously an entitlement to bring a proceeding in this Court once the Commission has terminated a complaint. It sits alongside the limits which have always been imposed by s 46PO(3), themselves aimed at constraining the subject matter of proceedings under s 46PO to the substance of what was before the Commission. 33 In understanding the operation of s 46PO(3A), it is helpful to refer to the text and structure of Part IIB of the AHRC Act. 34 Part IIB of the AHRC Act contains a series of prescriptive requirements for complaints to the Commission that also inform the construction and operation of s 46PO(3A). Section 46P prescribes what a complaint must contain, and who may lodge it. Section 46P(1A) imposes a requirement that "[i]t must be reasonably arguable that the alleged acts, omissions or practices are unlawful discrimination". This provision was introduced at the same time as s 46PO(3A). It informs the powers in s 46PH(1) to terminate a complaint, and also the mandatory obligation to terminate a complaint in s 46PH(1B) and (1C). 35 The exceptions in s 46PO(3A) inform the construction and operation of the leave requirement. The exception relating to complaints of public importance (s 46PH(1)(h)) is intended to give effect to the Commission President's (or her delegate's) state of satisfaction that a complaint bears that character, and to recognise that no further filter is appropriate in such circumstances. The exception relating to the obligation to terminate a complaint if there is no reasonable prospect of the matter being settled by conciliation (s 46PH(1B)(b)) again recognises and gives effect to the satisfaction of the Commission President (or her delegate) that the complaint is of this nature. In relation to termination for this reason, it is important to understand that the President is only likely to form a state of satisfaction to this effect if: (1) The complaint is not trivial, vexatious, misconceived or lacking in substance so that it must be terminated pursuant to s 46PH(1B)(a); and (2) The complaint is not of a kind that falls within s 46PH(1C) (which may be another way of reaching in substance the same kind of conclusion as that reached under s 46PH(1B)(a)); and (3) None of the discretionary grounds for termination of a complaint under s 46PH(1) are identified by the Commission President as the appropriate basis. 36 In other words, if the President has identified the obligation in s 46PH(1B)(b) as triggered, because of her or his satisfaction that the complaint cannot be settled by conciliation, then it would appear implicit in that decision that the Commission President is also satisfied that the complaint is reasonably arguable, but that the view is reached that the matter cannot be successfully conciliated. 37 I am satisfied that the text, context and purpose of the leave requirement in s 46PO(3A) suggests that it is appropriate for the Court to consider in determining whether to grant leave whether the claims made by an applicant are reasonably arguable, and are - at the least - not fanciful. This is consistent with the language used in s 46P(1A). I do not consider, read in context, that s 46PO(3A) sets the bar particularly high: the purpose of the provision is to act as a filter to preclude complaints whose merits are disproportionate to the time and resources likely to be consumed by dealing with them in a whole proceeding, but not to impose a barrier of any substantively greater level. 38 There may be a range of other permissible considerations including: (1) the circumstances of the parties: how important the subject matter of the complaint is to both the applicant and any respondent, and to their respective circumstances; (2) the nature of the allegations made (including whether for example they involve allegations of continuing discrimination, or how serious the discrimination is alleged to be); (3) how thoroughly the Commission has dealt with the merits of the complaint. For example, it may be the Commission's termination reasons thoroughly answer the alleged merits of a complaint and make it clear the complaint is not reasonably arguable; (4) whether an applicant has delayed in complaining about the alleged discrimination and if so whether there are any explanations for that delay; (5) whether a respondent has attempted to address the allegations in any way outside the Commission process and whether the allegations have been addressed or resolved in any way; (6) the factual and legal complexity of the matters raised by the allegation of unlawful discrimination; (7) whether the allegations raise issues of public importance, or of general application. The express power given to the President in s 46PH(1)(h) does not exhaust the circumstances in which this factor might be considered; and (8) other factors that are often considered in leave applications - such as prejudice to a party. 39 As I have noted in other contexts, it is important with judicial discretions concerning leave not to conflate the task of granting leave with the task of considering what is the correct conclusion on the facts and the law at final hearing: see my comments to similar effect in Kaur v Minister for Immigration and Border Protection [2015] FCA 584; 233 FCR 507 at [28]-[31] and in DJS16 v Minister for Immigration and Border Protection [2018] FCA 2037 at [27]. It would be a denial of procedural fairness to an applicant at the very least and, in my opinion, a misunderstanding of the role to be played by the leave requirement in s 46PO(3A), if the Court were to embark on a detailed consideration and determination of the merits of the applicant's underlying arguments about unlawful discrimination. Questions of fact, and questions of law, which are arguable are to be determined at trial, subject to any Court-directed processes such as the stating of a separate question under r 30.01 of the Federal Court Rules. 40 I turn now to consider the basis on which leave might be granted or refused in the present proceeding. 41 There is a dispute between the parties about which industrial agreement applies to Mr James' employment. The applicant says the Supported Employment Services Award 2010 applies but in his reply appears to accept that the Workpower Agreement also applies. He has not conceded that the Supported Employment Services Award 2010 does not apply. The respondent says only the Workpower Agreement applies. 42 It is not apparent from the termination letter how the delegate so clearly found one industrial instrument applied and another did not. I am not satisfied the question is as straightforward as the delegate's reasons might suggest. The applicant submits: Workpower's submissions appear to allege that Mr James is not covered by the Supported Employment Services Award 2010 (Award) because the Workpower Agreement applies to Mr James' employment. This is incorrect: (a) the Workpower Agreement applies to Mr James' employment because it is a preserved collective State agreement and by virtue of Schedule 3 Item 2(3) and Schedule 2 Item 2 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009; (b) Mr James is covered by the Award by virtue of section 48(1) of the Fair Work Act and the coverage provisions at clause 4.1 of the Award. (citations omitted) 43 I am satisfied there is a debate to be had about these matters. Coverage of an award is a matter of some legal and factual complexity which should be determined at trial. The answer should not be determined at the leave stage: that is not the purpose of s 46PO(3A). Its purpose is not to compel this Court to determine substantive issues of fact and law in deciding whether to grant leave. Rather its purpose is to allow the Court to filter out plainly unmeritorious complaints where the arguments are fanciful, or so obviously misconceived that what is being suggested by the applicant should not be entertained by the Court - whether because they are not arguable as a matter of law, or because there is no rational factual sub-stratum for the allegations, or because there is no utility in the proceeding. 44 There is also a dispute about which wage assessment tool was used to assess the applicant's wages. As I have explained above, the applicant contended before the Commission that the Greenacres tool was used to assess his wages. It is the operation and application of this tool which forms a core part of the applicant's allegations of unlawful discrimination. 45 The respondent contends it does not use the Greenacres tool, but uses its own assessment tool produced under the Workpower Agreement. This appeared to be the position the Commission agreed with, although its reasoning for doing so is not expressed. 46 However, as the applicant submits, in its response to the complaint to the Commission the respondent states: … Clause 4(3) of the Workpower Agreement provides that the rate of wage paid to an employee shall be the rate which fairly equates to the productivity, work skills and work associated competence of the employee as assessed by the Workpower Wages Assessment System. The Workpower Wages Assessment System is modelled on the Greenacres Tool. … Workpower does not have any role in relation to the design and/or formulation of the Greenacres tool. (emphasis added) 47 Thus, from the respondent's own response to the complaint to the Commission two matters are apparent: (1) It has used the Greenacres tool as the basis for its own assessment tool under the Workpower Agreement; and (2) It relied in its defence to the AHRC complaint on its inability to control, or modify the way the Greenacres tool operated. In that sense, there is a concession that its own tool incorporates and relies on the Greenacres tool. Whether or not this may have been done to secure the benefit of s 47(1)(c) of the DDA can be determined at trial. 48 Further, as the applicant submits in his reply submissions, a comparison between the Greenacres tool and the Workpower assessment system reveals a considerable number of commonalities. That is to be expected, given what the respondent itself contends about the Greenacres tool being the basis for the Workpower assessment system. It can be accepted, and the applicant accepted, that there are also some differences. Both tools are complex, and the evidence about their operation will no doubt be contested. It is not appropriate at the leave stage for the Court to determine whether the applicant is correct to contend that the two tools are, in substance, the same. It suffices that the Court is persuaded that the position put on behalf of the applicant is plainly arguable, and that is particularly so given what the respondent itself put to the Commission. 49 As to the application and operation of s 47(1)(c) of the DDA, it is clear there will be issues of construction to be considered in its operation - none the least, what the phrase "in direct compliance" means. There is also the question of what is meant by s 47(1)(c)(iv) - "the salary or wages are determined by reference to the capacity of the person" - where an applicant, as Mr James does, expressly contends that the assessment tool to which the industrial instrument refers does not accurately or fairly measure his capacity. 50 Finally, insofar as Mr James will need to frame his allegations in this Court in writing and to a sufficient level of particularity, once that is done, the respondent will be able to make a submission, if it is minded to do so, that the allegations as formulated exceed the substance of the complaint before the Commission and this Court has no jurisdiction by reason of s 46PO(3). I consider the respondent's current submission to that effect to be premature. As the applicant submits, the factual sub-stratum is the same, and as I have noted, the allegations made on behalf of Mr James in the complaint to the Commission were very broad.
Ruling in the respondent's evidence objection 51 I do not propose to rule the second affidavit of Ms Wilson inadmissible on the application for leave. In my opinion, evidence about Mr James' disabilities, and how they have been identified, is relevant to the determination of the leave application because the nature and extent of a person's disabilities, and how they are related to the complaints of unlawful discrimination is a proper matter for the Court to consider. I am satisfied Ms Wilson, given her training as a registered nurse and her experience working as a solicitor with people with disabilities, is qualified to express the opinions she does, at least for the purposes of the Court's consideration of the leave application. I do not consider that by introducing s 46PO(3A), Parliament intended this Court to conduct a detailed investigation into the provenance and quality of any opinion evidence in order to determine whether to grant or refuse leave.
Conclusion 52 Leave will be granted to the applicant to make an application to this Court alleging unlawful discrimination by the respondent. 53 The originating application was accepted for filing, and allocated to my docket, without attention being paid to the need for leave to commence the proceeding. The text of s 46PO(3A) suggests that, in a similar vein to the provisions dealing with vexatious litigants, Parliament intends that leave be considered at the stage an applicant seeks to file her or his originating process in the Court, and not at some later stage. The Court may need to clarify its processes to reflect this. 54 In this case, and in reliance on s 23 of the Federal Court Act and on r 1.32 of the Federal Court Rules, an order will be made to the effect that the proceeding is to be treated as having been commenced with leave on 13 April 2018, the date on which the originating application was filed. This will regularise the proceeding and is consistent with the intended effect of s 46PO(3A): namely that once leave is granted, a proceeding in this Court (or the Federal Circuit Court) should proceed in the usual way. 55 To date, this proceeding has been marked by a number of omissions, and some lack of responsiveness, by the legal representatives of Mr James. The failure to appreciate leave was required, and to seek it, is one of these, but the omission of the appointment of a litigation guardian was another. From this point onwards the Court will expect Mr James' legal representatives to observe their obligations in s 37N of the Federal Court Act, to prepare Mr James' case in a timely fashion, and to conduct this proceeding in accordance with the overarching objectives in s 37M of the Federal Court Act. 56 I consider it is appropriate, at least initially, for this matter to proceed by way of outline of case and response. There will be directions accordingly. If one or both parties consider the additional time and expense of formal pleadings is necessary, that is a matter which can be raised during case management and the Court will consider the submissions made. I certify that the preceding fifty-six (56) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mortimer.
James
WorkPower Inc
Leave granted to make application pursuant to s 46PO(1); originating application treated as filed with leave pursuant to s 46PO(3A); applicant to file outline of case by 14 February 2019; respondent to file response by 21 March 2019; matter listed for case management hearing on 25 March 2019.