Pursuant to section 136 of the Equal Opportunity Act 1995 this Tribunal orders -

1. It finds the complaint not proven and dismisses the complaint.
2. The Respondents' costs are reserved. The Respondents have liberty to apply for those costs on reasonable notice to the Complainant and this Tribunal.

1. I have found the complaint not proven and have dismissed it. The Respondents have liberty to apply for their costs.

1. In November 2006, Mr Light lodged a complaint under the Equal Opportunity Act 1995 (the EO Act). He claimed direct discrimination on the ground of industrial activity in breach of s15 of that Act. His claim is against a company (Technip) and an individual, Mr Milne. The Victorian Equal Opportunity and Human Rights Commission (the Commission) declined the complaint under s108(1) of the EO Act. That permits the Commission to decline a complaint which it considers frivolous, vexatious, misconceived or lacking in substance.
2. As was his right, Mr Light required the Commission to refer the complaint to VCAT. It did so by letter dated 31 January 2007.
3. The Respondents then applied under s75 of the Victorian Civil and Administrative Tribunal Act 1998 (the VCAT Act) to have the complaint struck out or dismissed. That application was unsuccessful. The complaint did not resolve at mediation. It now comes on for hearing.
4. I first deal briefly with the law. I then consider the evidence and make findings. Finally, I apply the law to the facts as I have found them and state my conclusions.

1. Among other things, s15 of EO Act prohibits a principal from discriminating against a contract worker by 'not allowing a contract worker to work or continue to work'. Section 15(3) defines 'principal' and 'a contract worker'. Relevantly, a contract worker is a person who does work for a principal under a contract between that person's employer and that principal. A 'principal' is 'a person who contracts with another person for work to be done by employees of the other person'.
2. Industrial activity is an attribute listed in s6 of the EO Act. That section lists attributes on the basis of which the Act prohibits discrimination in various areas of activity. At the time of the alleged discrimination (6 October 2006), s4 of the EO Act included in the definition of 'industrial activity' 'participating...in a lawful activity organised or promoted by an industrial organisation'. At that time, 'industrial organisation' was defined to include an organisation of employees (for example, a union)[1].
3. The effect of ss7, 8 and 10 of the EO Act is this. Discrimination within the meaning of the Act includes (among other things) direct discrimination on the basis of an attribute. Discrimination on the basis of an attribute includes discrimination on the basis that the person has or had the attribute at any time, whether or not the person has the attribute at the time of the discrimination. Relevantly for this case, direct discrimination occurs if a person treats someone with an attribute less favourably than the person treats or would treat a person without that attribute or with a different attribute in the same or similar circumstances. For the purposes of the Act, it does not matter what the motive for the treatment was, or whether the person is aware of the discrimination or considers the treatment less favourable. The attribute must be a substantial basis for the treatment, but need not be the only or dominant reason for it.
4. The Complainant claims that Technip is vicariously liable for the conduct of Mr Milne, its agent or employee, under s102 of the EO Act. The effect of that section is this. If, in the course of employment or while acting as an agent, an employee or agent breaches certain provisions of the EO Act, or engages in conduct which, if done by the employer or principal, would breach those provisions, both the employee or agent and the employer or principal are taken to have breached the provision and a complaint may be made against either or both of them. The provisions of the Act listed in the section include Part 3, in which in turn s15 is included. Section 103 contains an exception to s102, but the Respondents do not rely on this.
5. To prove his claim, Mr Light must prove that, by not allowing him to work, Mr Milne, as the agent or employee of Technip, treated him less favourably than he treated or would have treated people in the same or similar circumstances without his attribute of industrial activity. He must show that a substantial reason for that treatment was his industrial activity. The Complainant has the burden of proving the complaint, and the standard of proof is the balance of probabilities.
6. In this case, Mr Light asks the Tribunal to make a number of inferences from the evidence as a whole. It is clear from the authorities which discuss inferences which can be made in cases claiming prohibited discrimination, that an inference of prohibited discrimination can only be drawn if the inference is open on the primary facts. Some general inference of discrimination is not enough. It must be open to the Tribunal to draw an inference of discrimination of the particular kind, and on the particular attribute, claimed. It is also clear that if there is a non-discriminatory explanation of the treatment which is equally or more probable than the explanation of discrimination, the inference of prohibited discrimination is not open to the Tribunal. The Tribunal must look at the whole of the evidence, including explanations put forward by the Respondents and other explanations which the evidence is capable of supporting[2].

1. I have heard evidence for the Complainant from Mr Light himself, from the assistant shop steward of the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (AMWU) and Mr Light's co-worker Mr McAllister, and from Mr Abraham, a shop steward with the AMWU and also a co-worker of Mr Light. These three worked with PrimaWeld Engineering Pty Ltd (PrimaWeld). I have oral evidence and evidence in the form of witness statements.
2. For the Respondents, I have witness statements and oral evidence from Mr Milne, Mr Scanlon (at the relevant time a site manager for PrimaWeld), and Mr Kint (at the relevant time the construction manager for Technip on the site at which Mr Light worked). An affidavit sworn by PrimaWeld's managing director, Mr Vitale, was admitted into evidence by consent. Mr Vitale was overseas and was not available for cross-examination or for questioning by the Tribunal.
3. There are also a number of documents in evidence. These include what was said to be a contemporary record of a conversation between Mr Abraham and Mr Scanlon dated 29 September 2006. They also include Mr Milne's diary for August to December 2006.
4. Many of the facts are common ground. Where disputes exist, I indicate this in my findings. To a large extent, this case depends on my view of the credibility of the witnesses. For Mr Light, it is submitted that I should prefer his evidence and the evidence of his witnesses as being more direct, consistent and truthful than that of the Respondents' witnesses. A contrary submission is made for the Respondents, who urge me to prefer the evidence of their witnesses to that of the witnesses for the Complainant.
5. My approach to the evidence is this. Various matters detracted from the weight of the evidence of every witness. But these matters were not of such a nature as to make me disregard the whole of that witness's evidence. They did, however, affect the weight of certain parts of that evidence, and caused me to prefer the evidence of other witnesses in relation to the particular issue.
6. I give some examples. Under cross-examination, Mr Light agreed that there were a number of errors in his witness statement. For example, he agreed that, between the date of the alleged discrimination and this hearing, he had earned $8000, and not $800 as his witness statement said. Mr McAllister, in my view, tended to place his own (sometimes mistaken) interpretation on words used by Mr Scanlon in conversations with Mr McAllister. Moreover, both Mr Abraham and Mr McAllister, when relaying to Mr Light the content of conversations between them and Mr Scanlon, seem to have relayed what they thought was the meaning of what Mr Scanlon said, and to have used the language, not of Mr Scanlon, but rather the language of Mr Light and the other workers. Mr Abraham's evidence was permeated by confusion about dates. This confusion, together with the other evidence as a whole, has caused me to give little weight to what was said to be a contemporary record of a conversation between Mr Abraham and Mr Scanlon on 29 September 2006. Moreover, Mr Abraham's evidence and Mr Light's evidence are inconsistent in relation to what surrounded this conversation. Mr Abraham said, and Mr Light denied, that Mr Abraham had spoken to Mr Light about this conversation on 29 September 2006.
7. Mr Milne's evidence, in my view, underestimates Technip's involvement in some aspects of the 'termination' process. 'Termination' or 'redundancy' were the names given by all the witnesses to the process by which downsizing of the workforce at the relevant site occurred in which employees of the contractors on the site left the site. I use the same terms. In my view, Mr Scanlon's evidence exaggerated performance issues relating to Mr Light.
8. I give less weight to Mr Vitale's evidence than to that of those witnesses who were subjected to cross-examination and were questioned by the Tribunal. The evidence of those witnesses was in some respects inconsistent with Mr Vitale's evidence. I regarded Mr Light, Mr Scanlon and Mr Kint as the most reliable and consistent of the witnesses and, for the most part, preferred their evidence where it conflicted with the evidence of other witnesses. However, I preferred direct rather than indirect evidence of conversations. So, for example, where Mr Light gave evidence of a conversation which Mr Abraham had told him he (Mr Abraham) had with Mr Scanlon, I gave far greater weight to the evidence of Mr Scanlon and Mr Abraham about this conversation. I gave considerable weight to the contemporary diary of Mr Milne. In my view, the diary shows him to be a meticulous and thorough record-keeper.

1. Mr Light has worked as a mechanical fitter at various construction sites. He has more than 20 years' experience as a fitter. Since approximately 1986, he has been active member of the AMWU. He was a workshop steward at one site in 1991, and a union site delegate in 1996 at another. In June 1998, he was elected an organiser for the AMWU. In that capacity, he adopted an aggressive and hardline approach to dealing with employers in advocating the interests of union members.
2. Mr Light and Mr Milne first met when there was an industrial dispute at a UHT milk company site in Cobden, Victoria. This occurred in 1998. Mr Milne was industrial relations (IR) manager for the company on the site. The industrial dispute at the site involved industrial agreements. At one point, Mr Light brought 30 union members from other sites, which he claims was for support of the union members, and which Mr Milne claims was to pressure the employer. Mr Milne and Mr Light dealt with each other while Mr Light was still a union organiser on approximately three other occasions. I accept that their dealings were characterised by Mr Light's hardline approach to industrial issues, and by arguments and raised voices on both sides.
3. In about 2000, Mr Light and Mr Milne had come to the AMWU's Melbourne office on unrelated business. As they passed each other, Mr Light said to his companion (but directing his comments to Mr Milne) 'Give them nothing. Don't deal with him. He's a piece of shit'.
4. Mr Milne said in evidence that Mr Light had an intense dislike for him. This dislike was also clear from Mr Light's evidence. Mr Milne said that his attitude to Mr Light was no different from his attitude to any other union official. I do not accept this evidence. In my view, Mr Milne regarded and continues to regard what Mr Light said to him in 2000 as insulting, and his clear memory of that occasion attests to this.
5. I accept Mr Light's evidence that he pursued the hardline approach to industrial issues (concerning workers' entitlements, conditions and other matters) at various sites, and had a widely known reputation for militant union activity. I find that Mr Milne knew of this reputation.
6. By about the end of 2000, Mr Light ceased to be industrially active. He ceased to be an organiser with the AMWU.

1. The site is owned by Woodside Energy Limited. It is located at Port Campbell. It is a gas processing site which takes gas from offshore and cleans and processes it into a form ready for consumers. It consists of a large number of valves, pipes, tanks and machinery.
2. The head contractor in charge of construction on the site was Technip. It provided labour for the work of the site. In turn, it engaged various contractors to do work on site. One of these was PrimaWeld. Two others were called BMC and Corke. Initially, these contractors were engaged on a 'rates schedule' basis, under which Technip paid them an hourly rate for each employee working on the site.
3. Before downsizing occurred in September 2006, there were approximately 600 workers on the site, of which approximately 100 worked with PrimaWeld.
4. Mr Light began to work on the site in March 2006. He worked as a mechanical fitter, primarily in the area known as area 52. In July 2006, he was promoted to leading hand. I accept Mr Light's evidence about how this occurred. Mr Light had refused to 'sign off' on the work of other fitters to the effect that the work complied with Technip's quality standards. He did this on the basis that Technip's procedures required the person who 'signed off' be a leading hand. He was then promoted to be leading hand, first on a trial basis and then permanently. In my view, Mr Scanlon's evidence that he was an average performer is an understatement. I do not accept that Mr Scanlon would have promoted an incompetent worker.

The site under the management of Mr Kint and Mr Milne

1. In mid-August 2006, Mr Kint was appointed construction manager of the site for Technip. At Mr Kint's request, Mr Milne was appointed IR manager for the site. They were both Technip's agents and, very probably, its employees.
2. It is clear that Mr Milne's appointment was treated by some employees and union officials with considerable disquiet. I accept that Mr Milne had a reputation for sacking employees and as a 'union buster', and (according to Mr Scanlon) as a very hard man. It is clear that Mr Kint and Mr Milne approached their task on the site on the basis that they would follow 'the rules' and not do 'deals'. Mr Milne's diary for this period records that there was a threat of mass resignations (although this threat did not eventuate) and that the two previous IR managers on the site resigned when he was appointed on the basis that they did not wish to work with him.
3. Technip had appointed Mr Kint and Mr Milne because it was concerned about the progress of the project. At the time of their appointment, the project was over budget and behind schedule, and was costing Technip approximately one million dollars per day. It was Mr Kint and Mr Milne's view that one of the reasons for the project's difficulties was lack of productivity and an excessive number of workers on site. They began to change the way in which contracts were priced from the 'rates schedule' method to the 'fixed price' method and began a process of progressive downsizing of the workforce on site.
4. I accept the evidence of Mr Scanlon, Mr Milne and Mr Kint about the process of downsizing. After consulting the supervision staff of Technip itself, Mr Kint and Mr Milne would determine a number of workers in respect of each contractor for the purpose of downsizing. Sometimes, Technip would also identify the areas of work in which downsizing should occur. It would then direct its contractors to reduce numbers accordingly. Within these limits, Technip's contractors chose the individual workers to be 'terminated'. Technip had no part in the choice of particular individuals to be terminated.
5. However, I also accept that Technip had more involvement in some aspects of downsizing. First, on one occasion and in a downsizing which occurred on 13 September 2006, Mr Milne saw (but was not allowed to keep) the list of individuals to be terminated by one of Technip's contractors, Corke. This happened because, after the list of individuals to be terminated was prepared, the union asked Corke to alter the list. Mr Milne refused to admit the alteration on the basis that the original list had been prepared according to the normal downsizing process.
6. Second, as the construction project neared completion, and the numbers of workers on site reduced, and Technip's supervision staff on site increased in number and became more knowledgeable about the issues involved, a different downsizing process was used from December 2006 onwards. Mr Milne and Mr Kint would consult Technip's supervision staff about the people they wished to retain on site. They would compile a list of these people and give the list to the relevant contractors. Although Mr Milne called this in evidence a 'wish list', I accept Mr Kint's evidence that the contractors were expected to keep (and not terminate) those on the list unless they could convince Technip otherwise.
7. I am satisfied that, apart from these two instances, Technip (and its agents or employees Mr Kint and Milne) were not involved in determining individual workers to be terminated by Technip's contractors.

1. Mr Light's termination occurred as part of one of the numerous downsizings of the workforce at the site. The evidence is that the first of these downsizings occurred on 8 September 2006 when 70 workers left the site, including 15 from PrimaWeld. Another occurred on 13 September 2006, when 35 workers (working for various of Technip's contractors) left the site. A third occurred on 6 October 2006, when 38 workers left, included 11 from PrimaWeld. More occurred on 3 November, 24 November, and 20 December 2006. The workforce was reduced from 600 to some 100 workers. Most involved workers from many different classifications - riggers, boilermakers, welders, fitters and the like.
2. I accept Mr Scanlon's evidence that particular workers of PrimaWeld to be terminated were determined by him in consultation with PrimaWeld supervisers, and then with its managing director Mr Vitale. Mr Scanlon tried, within the numerical limits set by Technip, to distribute terminations across the various areas and job classifications in a fair way, taking account of the future work and skill needs of PrimaWeld.
3. By early September 2006, Mr Milne knew that Mr Light worked on the site. He saw his name in a muster sheet. They met once in passing in late September 2006, when Mr Milne greeted Mr Light and Mr Light responded (but in a voice unintelligible to Mr Milne) 'you must be kidding'. I accept that Mr Light believed that Mr Milne would sack him.
4. I am not prepared to find, given the state of the evidence, that the conversation between Mr Scanlon and Mr Abraham supposedly recorded in the document dated 29 September 2006, occurred. The conversation was to the effect that Mr Light was to be made redundant on the instruction of Mr Milne. Mr Scanlon denied the conversation and I accept his evidence.
5. Mr Milne's diary records, and I accept, that on 27 September 2006 he had told the union shop stewards Mr Abraham and Mr Dunsmuir that redundancies would occur in the near future but that the dates and numbers had not been finalised. On 3 October 2006, Mr Light's supervisor, Mr Wignal, told PrimaWeld workers on the site that there were to be redundancies and sought volunteers to leave. One mechanical fitter, Mr Dukes, volunteered.
6. On 4 October 2006, Mr Kint and Mr Milne met managers from various contractors on the site, including Mr Scanlon of PrimaWeld. They instructed Mr Scanlon to reduce PrimaWeld's numbers on the site by 10 to 12 workers. I accept Mr Scanlon's evidence that he discussed the matter with PrimaWeld's supervisors and then Mr Vitale, and that it was agreed that 11 workers would go from the site. They would be made of five welders, two mechanical fitters, a boilermaker, a trades' assistant, a rigger and a scaffolder. One mechanical fitter had already volunteered for redundancy. Mr Scanlon nominated Mr Light as the other mechanical fitter to be made redundant. I accept his evidence that he took into account that there were two mechanical fitters in area 52 and only one was needed. This was the area in which Mr Light mainly worked. The other fitter, Mr Mainella, had been the only fitter who had done large diameter piping work on the site. Mr Light had not done that work on the site. PrimaWeld's future work requirements on the site included that work. I accept that it was his understanding that Mr Light was not trained to do this work. In fact, this understanding was mistaken. Mr Light had done some large diameter piping work on other sites previously. I also accept Mr Scanlon's evidence that, in his discussions with the PrimaWeld supervisors, including Mr Light's supervisor, Mr Light had been chosen as one of the people to be made redundant. I accept Mr Scanlon's evidence that these were crucial factors in choosing Mr Light for redundancy rather than Mr Mainella, and I am not prepared to infer that there were other factors such as pressure from Technip or Mr Light's industrial activity that influenced Mr Scanlon's decision. I do not regard the fact that Mr Scanlon did not explain the reasons for his redundancy to Mr Light, or did not ask Mr Light whether he was trained in large diameter piping, as sufficient to support such an inference.
7. Later on 4 October 2006, according to Mr Abraham's evidence, he asked Mr Scanlon (after Mr Abraham himself had been approached by Mr Light about the matter) whether Mr Light's name was on the 'list' (that is, for redundancy). There is a conflict at this point between the evidence of Mr Abraham and Mr Scanlon. I accept Mr Scanlon's evidence and find that Mr Scanlon told Mr Abraham 'don't ask me questions like that'. I accept that he did this because the process had not been completed, the list not finalised, and the individuals to be made redundant not contacted. Mr McAllister gave evidence that at some time earlier in October (he was unable to specify the date) he had asked Mr Scanlon whether Mr Light was 'on the list' and had been told that Mr Light was one of the best fitters on the site and that was why he was promoted to leading hand. Mr Scanlon denied that this conversation occurred and, in my view, there is insufficient evidence for me to find that it did.
8. On 5 October 2006, Mr Scanlon told Mr Light that his name was 'on the list'. I accept the evidence of both Mr Light and Mr Scanlon that Mr Scanlon told Mr Light 'we have no say in what's going on'. Mr Light said, and Mr Scanlon denied, that Mr Scanlon also said 'it's wrong what they're doing'. I prefer Mr Light's evidence to Mr Scanlon's on this point. I accept Mr Scanlon's evidence that he had not wanted to make any of the PrimaWeld workers redundant and had taken the view that there was at least two to three weeks' work for them, particularly the mechanical fitters. I accept Mr Scanlon's evidence that he was referring to this matter in this conversation. Mr Abraham's evidence was that, on that day, he asked Mr Scanlon why Mr Light's name was 'on the list' and Mr Scanlon said 'I've been told'. Mr Abraham (mistakenly) took this to mean that Mr Milne had said that Mr Light's name must be placed 'on the list'. I accept Mr Scanlon's evidence that what he said referred to Technip's general direction that redundancies must occur - a direction with which he disagreed.
9. On 6 October 2006, Mr Light and a number of other PrimaWeld workers were made redundant. I accept that, on the next working day after the redundancies, Mr Scanlon asked Mr McAllister whether he knew any good fitters and Mr McAllister replied 'that's ironic. You've just sacked one'. Mr Scanlon shrugged his shoulders and said 'tell me about it'. I accept Mr Scanlon's evidence that his response referred to his reluctance to make any of the PrimaWeld workers redundant at that time. I also accept that Mr McAllister misunderstood his response to relate only to Mr Light.

Did Technip or Mr Milne directly discriminate against Mr Light on the ground of his industrial activity in breach of the EO Act?

1. It is submitted for the Complainant that I should infer from the whole of the evidence that this kind of prohibited discrimination occurred. It is submitted for the Respondents that I should prefer and believe the evidence of Mr Milne and the other witnesses for the Respondents, and should find that no breach of the EO Act occurred. It was also submitted for the Respondents that the inference sought on behalf of the Complainant was not reasonably open to the Tribunal.
2. It is common ground that, at least between 1998 and 2000, Mr Light engaged in industrial activity as defined in the EO Act. He no longer engages in industrial activity. However, it is clear from the EO Act that past industrial activity can form a ground for prohibited discrimination.
3. On the whole of the evidence, I am not prepared to find, by inference or otherwise, that Mr Light's past industrial activity was a substantial basis for PrimaWeld making him redundant, either as a ground actuating Mr Scanlon's decision, or occurred because of pressure or influence exerted over Mr Scanlon by Mr Milne who, in turn, based that pressure or influence on Mr Light's past industrial activity. I accept Mr Scanlon and Mr Milne's evidence that Mr Milne was not involved in the choice of Mr Light for redundancy. I am not prepared to infer from the evidence that he exerted pressure or influence over Mr Scanlon in that choice. The evidence shows a number of unfortunate misunderstandings of what Mr Scanlon said and what were his reasons for making Mr Light redundant, misunderstandings that were passed on to Mr Light and from which, I have no doubt, he formed the genuine belief that Mr Milne had influenced his redundancy because of his past industrial activity.
4. I would also add that, to my mind, there are other issues which make it impossible to find the claim proved. These relate to the claim of direct discrimination and less favourable treatment. It was said that the appropriate comparator for this purpose was the mechanical fitter Mr Mainella, who worked in area 52 with Mr Light, but was not made redundant at the same time as him.
5. First, the comparator must be a person without Mr Light's industrial activity. There is no evidence as to whether or not Mr Mainella had that attribute.
6. Second, the comparison must be made 'in the same or similar circumstances'. To confine the comparison to the circumstances of Mr Mainella is, in my view, to confine them too narrowly. Mr Light's redundancy occurred during a period of many downsizings on the site - downsizings in which workers of varying classifications were involved, and which included those who were union shop stewards and those who were not. In these circumstances, it is artificial to say that Mr Light was treated less favourably than Mr Mainella. It is difficult to say that Mr Light was 'singled out' because of his industrial activity. What is really being sought, in my view, was for Mr Light to be treated more favourably than his other co-workers, by being made redundant at a later time. But this is not what the definition of direct discrimination contemplates.

1. For these reasons, I find the complaint not proven and dismiss it.

[1] These definitions have now been changed by amendments made by s18(2) of the Justice Legislation (Further Amendment) Act 2006 which commenced on 11 October 2006

[2] Department of Health v Arumugam [1988] VicRp 42; [1988] VR 319