PROCEEDING Application to strike out or dismiss complaint.

RESPONDENT Multigroup Distribution Services Pty Ltd trading as Discount Freight Express**

CITATION Porter v Multigroup Distribution Services Pty Ltd trading as Discount Freight Express (Anti-Discrimination) [2000] VCAT 2647

DEPUTY PRESIDENT:. I reserved my decision on this application and I am now in a position to hand it down. My decision is that the application is dismissed but in my order I have provided a time table for the parties to make submissions to the Tribunal on the question whether the complaint or the claim of employment termination in it ought to be stayed pending the outcome of the proceedings in the Federal Court.

The time table you will see is set out in the order. I have also reserved costs and again provided a liberty to apply in respect of those costs. I now give my reasons for that decision.

Mr Porter has lodged a complaint under the Equal Opportunity Act 1995 which in these reasons I call the Equal Opportunity Act against the respondent which in these reasons I call Multi Group. The Equal Opportunity Commission which I call the Commission declined the complaint under s.108.1(a) of the Equal Opportunity Act.

The Commission was required by the complainant to refer the complaint to this Tribunal which in these reasons I call VCAT and has done so. Multi Group now applies under s.75 of the Victorian Civil and Administrative Tribunal Act 1998 which I call the VCAT Act, to have the complaint struck out for abuse of process.

The principles applying to applications to strike out proceedings under that section are similar to the principles applied by the Victorian Court of Appeal to the now repealed s.44C of the Equal Opportunity Act 1984. See Rabel v. State Electricity Commission [1998] 1 VR at102. Norman v. Australian Red Cross Society decision of VCAT dated 27 November 1998. So far as is relevant here those principles are these.

The Tribunal will be cautious at this stage and before evidence has been heard before summarily terminating a proceeding and so depriving the litigant of the chance to have the claim heard in the ordinary course. It will only do so if the respondent is satisfied it that the claim is obviously unsustainable in fact and law or is manifestly hopeless or, is clearly, to use the terms of the section, an abuse of process.

I have before me the complaint and submissions made by the parties on the application. Before dealing with those submissions I should first say what I consider the complaint claims. Multi Group argues that it only claims discrimination in respect of termination of employment. It is argued from Mr Porter that it is far wider than this.

In my view this complaint claims that Multi Group discriminated against Mr Porter on the basis of his impairment, the impairment being an amputation of a leg and complications arising from that, in the following ways:

(a) by refusing to permit him to return to work from November 1999 onwards;

(b) by refusing to inform him of or permitting him to apply for positions other than his pre injury position as a driver available within Multi Group;

(c) by refusing to permit him to retrain for work within Multi Group;

(d) by requiring him to be capable of working more than eight hours a day in respect of his position;

(e) by requiring him to be fit to perform his pre-injury duties;

(f) by requiring him to be able to drive a geared truck;

(g) by requiring that he satisfy medical practitioners nominated by Multi Group that he was fit to perform his pre-injury duties;

In relation to the termination of employment aspect of the complaint I refer to this throughout these reasons as the termination claim.

About 27 March 2000 Mr Porter applied to the Australian Industrial Relations Commission under s.17CE of the Workplace Relations Act 1996 in respect of the termination of his employment by Multi Group. That was what the application alleged.

Among other things the application alleged that Multi Group terminated that employment in contravention of s.17CK of that Act. On 16 May 2000 the Australian Industrial Relations Commission held a conciliation conference. That conference did not succeed in resolving the matter. On 29 May 2000 under s.170CF sub-s.2 of the Workplace Relations Act the Australian Industrial Relations Commission certified that reasonable attempts and conciliation had been and were likely to be unsuccessful in so far as the termination claim was concerned.

The relevant grounds mentioned in that certification included the contravention of s.170CK. Under S.170CFA of that Act, Mr Porter then elected to pursue the application by commencing proceedings in the Federal Court. Those proceedings were issued in June 2000. Their reference is V429 of 2000. The statement of claim in those proceedings alleges among other things, contravention of s.170CK of that Act and asks for remedies under s.170CR of that Act including reinstatement, compensation and imposition of a penalty against Multi Group. Those proceedings are continuing.

The complaint under the Equal Opportunity Act was lodged on 3 May 2000, after the making of Mr Porter's application to the Australian Industrial Relations Commission. On a reading of Multi Group's submissions, it appears that Multi Group is arguing that this Tribunal should strike out the termination claim either as an abuse of process or because it is misconceived. The parties have made submissions on that basis. The Tribunal has power to strike out a proceeding on both those grounds. I deal with the matter on the basis that, in fact the application relates to both those grounds.

I first deal with the submission that the termination claim in the complaint is misconceived. Multi Group says that the termination claim is misconceived because the provisions of the Equal Opportunity Act under which he complainant can lodge and refer a complaint, in particular this claim, are consistent with certain provisions of the workplace relations Act 1996 in the sense of which that word is used in s.109 of the Commonwealth Constitution. So that those provisions are invalid in the sense of inoperative to the extent of that inconsistency.

It is argued for Mr Porter that while this Tribunal might be able to form an opinion about whether or not such an inconsistency exists it cannot make that opinion the basis for any definitive decision on the matter. In fact this means that this Tribunal must not entertain a jurisdictional argument which would require it to make a definitive decision about the application of s.109 of the Federal Constitution to a state law.

Mr Porter relies on the decision of President Brennan as he then was, then being President of the Federal and Administrative Appeals Tribunal in the case of Henry Adams v. The Tax Agents Board reported in [1976] 12 ALR at 239. I will not set out in detail what was said in that decision but the proposition which it states or which it stands for are these.

The AAT as a Tribunal with jurisdiction to review and either affirm or set aside and substitute or vary decisions of decision makers, does not have power to decide definitively whether or not a - in this case, a Commonwealth Law is ultra vires. The decision or the definitive decision of these matters requires the exercise of judicial power to the Commonwealth and it is for a court not a Tribunal to decide.

The AAT's power does not include power to grant relief where a statute is ultra vires. But a Tribunal although it cannot definitively decide this question can form an opinion on it. That opinion cannot however have any legal effect.

It may form this opinion in considering the legal limits of its statutory authority. It may do this, , as President Brennan (as he then was) said, in order appropriately to mould its conduct. See 12 ALR at 241-243. At p.243 of the report he went on -

"When an administrative body declines to exercise a power in consequence of its opinion as to the limits of the authority conferred upon it by statute, the administrative body thereby seeks to conform with the expressed will of the legislature. But if an administrative body declines to exercise a power in consequence of its opinion that the legislature could not confer the relevant authority on it, the will of the legislature expressly conferring that authority would, at least for a time be overridden".

On the other hand, an administrative body is not bound to assume the constitutional validity of a statute. It is not bound to act on such a statute. In the case of In Re Bolton Ex Parte CFMEU reported in [1998] 73 ALJR at 129, where the issue of whether the Australian Industrial Relations Commission could consider whether a particular Commonwealth statute was ultra vires was raised although not fully argued, Justice Kirby said at pp. 132-3-

"One might suggest that a question whether there was jurisdiction at all would be the precise kind of question that would invite an opinion of the body whose jurisdiction was invoked"

"has no lawful jurisdiction, it may not assume that it has and it ought not to pretend that it has."

There are numerous cases in which Tribunals exercising jurisdiction under anti-discrimination legislation in various Australian jurisdictions, including Victoria, have assumed that they could in determining whether they had jurisdiction determine whether particular statutes were inconsistent with Commonwealth laws in the sense used in s.109 of the Federal Constitution. See the R v. Sex Discrimination Board [1980] EOC 92-007, Lansdowne v. City of Oakleigh [1988] EOC, 92-225; Caulfield & Ors v. Gunnedah Coal Ltd [1998] EOC at 92-893.

The question has often been considered in context of an argument that a Federal Award under the industrial relations legislation was inconsistent with a particular state act.

In my view the correct position is this. to consider the question of whether the state law is inconsistent with a Commonwealth law for the purposes of s.109 of the Federal Constitution is to consider a question arising under the constitution or involving its interpretation. See Ex Parte MacLean.[1930]43, CLR at 472, particularly in p.483 in the judgement of Justice Dixon.

These matters are federal jurisdiction under chapter iii of the Commonwealth constitution. By virtue of the combined operation of s.77(iii) of the Federal Constitution and s.39(2) of the Judiciary Act 1903, in addition to courts created under chapter iii of the Commonwealth Constitution the courts of a state are invested with this jurisdiction. VCAT is not a court for this purpose. As to this I adopt the same reasoning and conclusion in relation to the functions, constitutions and procedures of VCAT as Deputy President Macnamara did in the case of In Re Maltall Pty Ltd & Anor v. Bevendale Pty Ltd [1998], 14, VAR at 368.

Moreover VCAT in its jurisdiction under the Equal Opportunity Act does not have power to grant relief in respect of a claim that a state law is inconsistent with a Commonwealth law and invalid in the sense of being inoperative in the sense used in s.109 of the Federal Constitution.

Under s.134 of the Equal Opportunity Act VCAT has jurisdiction to hear and determine complaints referred to it under that Act. Under s.136 if it finds a complaint proved the Tribunal may make orders. Those orders include that a respondent refrain from committing any further contravention of the Equal Opportunity Act in relation to the complainant, that the respondent compensate the complainant for loss, damage or injury suffered in consequence of the contravention and that the respondent take specified action with a view to redressing loss, damage or injury suffered by the complainant as a result of the contravention. See s.136, paragraph (a).

Under s.124 of the VCAT Act the Tribunal may make a declaration instead of, or in addition to, any of these orders. This relief does not extend to orders or declarations as to the constitutionality or validity of laws for the purposes of s.109 of the Federal Constitution. For a similar view see W v D and Anor, [2000] EOC at 93-045.

However, although VCAT cannot definitively rule on the validity of a state law under s.109 of the Federal Constitution it may form an opinion on that matter if it is relevant when the Tribunal considers the limits of its jurisdiction. There are two ways in my view, where the operation of s.109 on a state law might be relevant when the Tribunal considers the limits of its jurisdiction.

I apply these comments only in the context of this case.

The first way is where a law of the Commonwealth might be inconsistent with the provision of the Equal Opportunity Act which relates to the entitlement to lodge a complaint. If the law of the Commonwealth prohibits the lodging of a complaint in particular circumstances there may be nothing to found the Tribunal's jurisdiction.

The second way is where a law of the Commonwealth is inconsistent with one of the prohibitions of the Equal Opportunity Act so that the prohibition is invalid in the sense of being inoperative because of s.109 of the Federal Constitution. Then, although the Tribunal would have jurisdiction to deal with the complaint because it alleges breach of the Equal Opportunity Act and that is all that a complaint needs to do, the Tribunal ought in my view to be able to consider whether the complaint should be struck out under s.75 of the VCAT Act, because it alleges or it makes an allegation which is incapable of constituting a contravention of the Equal Opportunity Act and is, on that basis, misconceived or unsustainable.

It does not seem to me that the Tribunal ought simply to proceed on the assumption that there is no inconsistency in the s.109 sense or refuse to deal with submissions relating to s.109 on that basis. The Tribunal cannot, it seems to me, effectively ignore the existence of a Commonwealth law which might raise the issue of inconsistency in the s.109 sense. It should be remembered that s.109 operates of its own force and not only where a court makes a decision or declaration in the matter.

But the Tribunal must ensure that the matter is dealt with in such a way that does not involve it in making, definitive findings as to inconsistency. If the Tribunal is satisfied that a law of the Commonwealth was so clearly inconsistent with the provision of the Equal Opportunity Act that the Equal Opportunity Act provision was inoperative in the s.109 sense, and that because of that invalidity of the profession the Tribunal lacked jurisdiction to hear and determine the matter, or that the matter was clearly incapable of constituting a contravention of the Act, then it might be appropriate for the Tribunal to strike out a claim.

That in my view would not involve the Tribunal in the making of a final or definitive decision because the claim would not be dismissed. However, because of the caution which the Tribunal in any case will exercise before striking out a claim and because of the Tribunal's inability to make definitive decisions relating to s.109 of the Federal Constitution, the Tribunal should only strike out a proceeding in these circumstances, in an exceptional case where the inconsistency is clear beyond doubt.

Applying this approach to this case I now consider Multi Group's submissions. Multi Group submits that s.170HC of the Workplace Relations Act is directly inconsistent with the complaint lodgment provisions of the Equal Opportunity Act in the circumstances of the present case and in the circumstances in which that section applies, so that to the extent of the inconsistency the s.109 of the Commonwealth Constitution makes those provisions inoperative.

Alternatively it submits that those provisions of the Equal Opportunity act are inoperative because s.170HC of the Workplace Relations Act was intended by the Commonwealth Parliament to cover the field of the choice of jurisdiction in respect of proceedings for termination of employment on the basis of disability or impairment. That is, was intended to completely or exhaustively deal with that matter to the exclusion of state law.

On this ground it submits that the provisions of the Equal Opportunity Act are inconsistent with the Commonwealth law and are inoperative in the circumstances of this case. (As to inconsistencies, see generally Whittle & Ors v. Godfrey & Ors a decision of the Anti Discrimination Tribunal dated 19 September 1997 and the authority cited in that decision. Ansett Industries Operations Pty Ltd v. Wardley [1980], 142 CLR at 237. Ex Parte MacLean which I cited earlier, Ex Parte Gallagher [1982], 152 CLR at 211)

Section 170HC is headed Applications Alleging Contravention of S.170CK. It provides:

(1) An application must not be made under s.170CE on the ground that the termination of an employee's employment constitutes an alleged contravention of s.170CK because it was done for a reason set out in s.170CK(2).

If proceedings, the prior proceedings, for a remedy in respect of that termination have been commenced by or on behalf of the employee, a) under another provision of this act; or b) under another law of the Commonwealth; or c) under a law of a state or territory, alleging that the termination was unlawful because it was done for such a reason. (2) Sub-s.1 does not prevent an application of the kind referred to in that sub-section. If the prior proceedings; a) have been discontinued by the party who began the proceedings or; b) have failed for want of jurisdiction;

(3) If an application of the kind referred to in sub-s.1 has been made in respect of a termination, a person is not entitled to take proceedings for any other remedy that, if it had been applied for before that application would, because of the operation of sub-s.1 have prevented that application unless the application; a) is discontinued by the applicant or; b) fails for want of jurisdiction.

Section 170CK(2) prohibits an employer from terminating an employee's employment for any of a number of listed reasons. Paragraph (f) in the list includes physical or mental disability. The provision is part of division three of part viA of the Workplace Relations Act. That part is headed Minimum Entitlements of Employees. Division three is headed Termination of Employment.

The principal objects of this division include to establish a procedure for conciliation of certain matters relating to termination of employment, to provide recourse to arbitration or a court if conciliation is unsuccessful, and to provide sanctions where, on recourse to a court, termination is found to be unlawful and by all these matters which I have just mentioned to assist in giving effect to the termination of employment convention, see S.170CA.

The additional object of s.170CK is to "assist", in giving effect to among other things, the convention concerning discrimination in respect of employment and occupation, see s.170CK(1). In proceedings in the Federal Court for contravention of s.170CK the employee need not prove that the termination is for a reason listed in s.170CK(2) but it is a defence if the employer proves that it was not done for one of those reasons, (see s.170CQ).

If satisfied that the termination contravenes s.170CK the court may make any of the following orders. It may impose a penalty of not more than $10,000. It may order an amount of compensation in respect of the employee. It may reinstate the employee. The compensation amount that it may award I should add has certain limitations, (see for example s.170CH). And finally it may make any orders which it thinks necessary to remedy the effects of the termination.

The effect of s.170HA is that subject to s.170HC, and I mention only the relevant provisions-

"the provisions of this division are not intended to limit any rights that a person or trade union may have to appeal against a termination of employment or to secure the making of awards or orders relating to termination of employment".

I deal with the submissions that s.170HC was intended by the Commonwealth parliament to cover the field of the choice of jurisdiction in relation to proceedings with respect to termination. But before I do so I make one comment about the object of s.170CK which was said in some of the submissions to be a relevant matter to consider in interpreting s.170HC. That object as I have said is to assist in giving effect to the convention concerning discrimination of employment and occupation. I do not find that object of help in interpreting s.170HC.

First s.170HC must in my view be interpreted according to its own terms. Second even assuming that under the Commonwealth Acts Interpretation Act I could have regard to that object and it was relevant to s.170HC. It seems to me that it does not give clear guidance in interpreting that section. The wording of the object may perhaps as the complainant intended show that s.170CK is there to supplement rather than exclude other laws giving effect to that convention, but it seems to me that a more direct meaning of the words is simply to show the power, the constitutional power, under which parliament was intending to make this section and also to show that it had to be interpreted so as to assist and not defeat that convention.

I turn then to the argument that s.170HC covers the field in respect of choice of jurisdiction. I am not satisfied to the degree that I mentioned earlier that this is so clear of the intention that s.109 clearly applies and that the Equal Opportunity Act provisions which govern the lodgment and referral of complaints are

to the extent of that inconsistency clearly inoperative. I therefore do no strike out the termination claim on that ground. The main object of the part of which s.170HC and 170CK form part is to set minimum not exhaustive conditions relating to employment and to provide a procedural framework of applications, conciliations and orders to support that regime. It is expressly stated in the division subject to s.170HC that the division is not intended to prevent the exercise of other rights in respect of termination.

Section 170HC itself does not require a particular choice of forum to be made. That is a matter for the terminated employee. It only deals with the possibility of concurrent proceedings under the Workplace Relations Act on the one hand and under a law of a state or territory or under other provisions of the Workplace Relations Act on the other. I am not prepared to say that the Commonwealth Parliament in this section intended to cover any field exhaustively or completely in a way that would leave no room for state law.

Is then s.170HC directly inconsistent with the provisions of the Equal Opportunity Act concerning the lodgment and referral of complaints in respect of termination of employment on the basis of disability in the circumstances covered by s.170HC? I formulate this question in the context of this case and ask is there a direct collision between s.170HC and those provisions of the Equal Opportunity Act? Multi Group submits that there is. Mr Porter submits that there is not.

In my view if s.170HC(3) applies to this claim and has the effect of removing Mr Porter's entitlement to make a complaint under the Equal Opportunity Act, there would, in my view, be a direct inconsistency in the s.109 sense between those provisions and s.170HC because the Equal Opportunity Act provisions would be entitling what s.170HC prevented.

The parties accept that Mr Porter's application before the Federal Court is continuing and has not been dismissed for want of jurisdiction. The exclusion at the end of s.170HC(3) then does not apply to him. The other questions that must be answered here as to whether 170HC(3) applies are these.

First, it is clear from the material before me that there is an application here of a kind referred to in s.170HC(1). The next question then is, is the Equal Opportunity Act claim, the termination claim, a proceeding that under sub-s.1 and if commenced before Mr Porter's Workplace Relations Act application would have prevented him making that application?

This question resolves itself into several subsidiary questions. They are, is the claim a proceeding for a remedy in respect of termination of Mr Porter's employment? Was the proceeding commenced by Mr Porter on his behalf? Clearly the answer to that second question is "Yes". Does the claim allege that the termination of employment was unlawful for a reason listed in s.170CK(2)?

It is argued for Mr Porter that a claim of discrimination by terminating employment in contravention of the Equal Opportunity Act on the basis of impairment is not a claim alleging unlawful termination of employment because of impairment and is not a claim seeking a remedy in respect of termination of employment. I agree with this submission that the complaint should not be struck out on the basis that s.170(h)(3)(c) applies.

This termination claim alleges contravention of the Equal Opportunity Act. In so far as it relates to termination of employment s.14 of that Act prohibits an employer from discriminating against an employee by terminating his or her employment, (see s.14(b)).

The other prohibitions in the Act are in a similar form. They prohibit discrimination in a defined area of activity. The object of the Act reflects this structure. It is one of the Act's objectives to eliminate discrimination as far as possible by prohibiting discrimination on the basis of various attributes.

The Act does not prohibit termination of employment or even termination of employment based on an attribute listed in the Act. It only prohibits discrimination in specified areas of activity. One of these is termination of employment. The concept of discrimination involves direct or indirect discrimination. Direct discrimination is attribute based but its second essential element is treatment of the victim of the discrimination, that is the person with the attribute, less favourably than in the same or similar circumstances the person who is the alleged discriminator treats or would treat someone without that attribute or with a different attribute, (see s.8).

The concept of indirect discrimination does not require that the attribute must be the reason for what the discriminator does. It has a different set of requirements. For indirect discrimination there must be the imposition of a requirement condition or practice with which a person with an attribute does not or cannot comply, with which a high proportion of people without that attribute or with a different attribute do or can comply and which is not reasonable, (see s.9).

It is in the comparison that the attribute is relevant for indirect discrimination purposes not in the reason for which the requirement condition or practice was imposed.

The Act prohibits discrimination in many more fields than simply termination of employment. For example, in accommodation, education, provision of goods and services and so on. While it is an essential to specify the area of activity covered, it is also an essential to allege prohibited discrimination. I am not prepared to say that a claim of contravention of s.14(b) of the Equal Opportunity Act is a claim alleging termination of employment because of impairment. It is a different kind of claim. Although it relates to termination of employment it seeks a remedy for contravention of the Equal Opportunity Act. Although termination of employment is essential for contravention of that Act to occur it is not the only essential element. A claim of contravention of that Act needs an additional element.

Therefore, a claim of contravention of that section and a claim for a remedy for termination of employment are different claims, are not the same.

Mr Porter also relied on the differences in the remedies available under the Equal Opportunity Act and s.170CR of the Workplace Relations Act.

It is, in my view, irrelevant for the purposes of s.170HC whether the remedies available under the Equal Opportunity Act and under s.170CR of the Workplace Relations Act are the same or are broader or narrower than each other. What is relevant is whether, under the Equal Opportunity Act, Mr Porter can be said to have commenced proceedings for a remedy, no matter what remedy, in respect of termination of employment.

I do not accept Multi Group's submission that I should strike out this complaint because s.170HC of the Workplace Relations Act applies to it and that provision is inconsistent with the complaint lodgment and referral provisions in the s.109 sense. This is not one of the exceptional cases where it would be appropriate to strike out on these jurisdictional grounds.

The parties referred me to many authorities including Merlin Gerin v. Wojcik reported in [1994] EOC 92-592. Those authorities, it seems to me, turn on their particular facts and on the particular statutes there in question.

Multi Group also argued that the termination claim constituted an abuse of process of this Tribunal. The basis for its arguments were the provisions of s.170HC of the Workplace Relations Act. The argument was that the Tribunal, given the existence of that section, ought not to entertain the termination claim because it was prevented from being made because of s.170HC. For the reasons I have given earlier, I am also not satisfied that that section so clearly applies to prevent the making of this termination claim in this complaint.

I am therefore not satisfied that the termination claim should be struck out on the grounds sought by Multi Group. However, in my view, and I am expressing our preliminary view, there is a real question whether this termination claim, if not the complaint as whole, ought to be stayed pending the determination of the Federal Court proceeding whether the outcome of that proceeding is by settlement, by court decision or by discontinuance.

It is clear that this Tribunal, both from its general powers in s.98 and in s.130 of the VCAT Act, has a power to stay proceedings if it is in the interests of justice to do so. There are a number of cases concerning this matter. For example, Prime Minister John Piss the Family Court and Legal Aid v. Family Court and Legal Aid in the State of Victoria a decision of VCAT dated 7 May 1999. Schwerrin v. City of Sale decision dated 12 June 1997 of the Anti Discrimination Tribunal and both those decisions applied Sterling Pharmaceutical Pty Ltd v. The Boots Company of Australia Pty Ltd [1992] 34 FCR at 287.

The factors which are taken into account apart from the overall interests of justice include which of the proceedings was commenced first, the undesirability of a Court and a Tribunal competing to see which would make findings of fact on common issues first, duplication of procedural work, whether the same witnesses will be involved and whether there is a wasting of resources in permitting these two proceedings to run concurrently, and any relative advantage or disadvantage to the parties. One has to also bear in mind the general entitlement of a litigant to have the action tried in the ordinary way.

I have reached the preliminary view that the termination claim in this complaint and the claim in the Federal Court will involve the determination of a number of common issues. Those issues include whether the employment was terminated and for what reason. The issues are not identical but they are, nevertheless, sufficiently similar to warrant, in my preliminary view, a stay. There will also be the possibility of inconsistent findings concerning these issues if the proceedings were continued concurrently and also inconsistent findings as to credit.

It is desirable that I receive submissions on this matter before this proceeding goes any further and this is why in my order I have provided a timetable for that. Apart from that matter, as I have said, I have dealt with the matter of costs and the liberty to reply in my order.