Civil and Political Rights - sexual discrimination - determinations by Human Rights Commission - application for enforcement - determination of preliminary question on agreed facts - whether Shire Council employer (by the conduct of an employee) had engaged in unlawful conduct in breach of the Act - whether Council project a 'Commonwealth program' - Council 'performing a function...for the purposes of the Commonwealth Employment Program'.

Sex Discrimination Act 1984 ss. 26, 82.

Community Employment Act 1983 ss. 3, 4, 5, 11, 12.

On the premise that the applicant had been subjected to

discriminatory conduct on the ground of her sex in her employment

by the Council of the Shire of Caboolture, the Council would have

engaged in unlawful conduct in breach of s. 26 of the Sex

Discrimination Act 1984.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

SPENDER J. On 7 July 1992, an application was filed by Jacqueline Nora Hough against the Council of the Shire of Caboolture ('the Council') seeking a declaration that the Council, by one of its foremen, engaged in unlawful conduct in breach of s. 26 of the Sex Discrimination Act 1984 ('the Act') in respect of the applicant and seeking a declaration pursuant to s. 82 of the Sex Discrimination Act as to an entitlement to damages by way of compensation and lost wages.

2. A complaint by the applicant had been heard by the Human Rights Commission which made various determinations. The application to enforce those determinations in the Federal Court is made pursuant to s. 82 of the Sex Discrimination Act .

3. In a sensible attempt to resolve the matters seriously in dispute, the parties in the Federal Court agreed to the determination of a preliminary question which it was stated would go a long way to resolve the matters in issue between the parties.

4. In the statement of agreed facts filed 6 November 1992, the introductory paragraph states:

" If the factual matters set out in paragraphs 5 and 7 of

the Statement of Claim are true, has the respondent

engaged in unlawful conduct in breach of section 26 of

the Sex Discrimination Act. "

" Included in the above question:

(a) does the discrimination comprehended by section 26

of the Act include sexual harassment;

(b) was the respondent performing a function under the

Commonwealth Employment Act or for the purposes of

the Commonwealth Employment Program or having any

other responsibility for the administration of the

Commonwealth Employment Act or for the conduct of

the Commonwealth Employment Program in its on-going

employment of and dismissal of the Applicant. "

5. It is accepted by Mr Ure, counsel for the Council, that the discrimination comprehended by s. 26 of the Act includes sexual harassment, so it is unnecessary to consider that aspect of the matter further.

6. Section 26 provides:

" (1) It is unlawful for a person who performs any

function or exercises any power under a Commonwealth law

or for the purposes of a Commonwealth program, or has any

other responsibility for the administration of a

Commonwealth law or the conduct of a Commonwealth

program, to discriminate against another person, on the

ground of the other person's sex, marital status or

pregnancy, in the performance of that function, the

exercise of that power or the fulfilment of that

responsibility.

(2) This section binds the Crown in right of a State. "

7. In its terms the prohibition of the section extends to a person who:

(1) performs any function under a Commonwealth law, or

(2) exercises any power under Commonwealth law, or

(3) performs any function for the purposes of a Commonwealth

program, or

(4) exercises any power for the purposes of a Commonwealth

program, or

(5) who has any other responsibility for the administration of a

Commonwealth law, or

(6) has any other responsibility for the conduct of a

Commonwealth program.

8. Section 4 of the Act defines "Commonwealth program" as:

" ...a program conducted by or on behalf of the Commonwealth

government. "

9. Included in the agreed facts are the following:

" 1. The applicant is a woman, 26 years of age, having

been born on 14 December, 1965.

2. The applicant was employed from 2 February 1987 to

27 May, 1987 as a labourer as part of a work gang

carrying out work in Summer Street, Deception Bay,

within the Shire of Caboolture.

3. The work which the said gang was engaged in

constituted an approved project pursuant to the

Community Employment Program which program was

established and carried on pursuant to the

Community Employment Act 1983 (Commonwealth).

4. The respondent was, at all relevant times, and

remains a local authority constituted pursuant to

the Local Government Act 1936 (Queensland).

5. The respondent was, at all relevant times, the

employer of one, Brian Stevens, who was appointed

foreman of the gang working on the project and the

immediate supervisor of, and co-employee of, the

applicant. "

10. As appears from the agreed fact 3, the applicant was engaged in a project pursuant to the Community Employment Program.

11. The Community Employment Act 1983 is entitled: "An Act to provide for the creation of additional employment throughout Australia".

12. By s. 3 of that Act 'approved project' means "a project approved under section 4".

" (1) The Minister, or an officer of the Department who is

authorised by the Minister by instrument in writing, may

approve projects for the creation of employment.

(2) In approving projects for the purposes of sub-section

(1) particular regard shall be had to the creation of

employment for the long-term unemployed and for unemployed

persons who are specially disadvantaged. "

" the Minister may, on behalf of the Commonwealth, enter into

an agreement with a State for the carrying out of approved

projects in the State. "

" Without in any way limiting the matters that may be provided

for in an agreement with a State, such an agreement shall

include provision for and in relation to -

(a) the manner of carrying out the approved projects to

which the agreement relates;

(b) payments to be made to the State under this Act;

and

(c) the conditions subject to which those payments

shall be made. "

" An agreement under this Act is, except so far as otherwise

provided in the agreement, subject to the following

conditions:

(a) the payee is not entitled to a payment under the

agreement with respect to any expenditure by the

payee for the purposes of carrying out an approved

project unless the payee has furnished to the

Minister -

(i) in the case of an agreement with a State or a

Commonwealth authority - a statement in respect

of that expenditure, in accordance with a form

approved by the Minister, accompanied by a

certificate of the Auditor-General certifying,

in relation to each amount shown in the

statement as having been expended, either -

(A) that, in his opinion, the amount was

expended for the purposes of carrying out

the approved project; or

(B) that he has received a certificate from a

qualified accountant stating that, in his

opinion, the amount was expended for the

purposes of carrying out the approved

project."

17. In relation to the payment to a payee for the purposes of carrying out an approved project, s. 11(6) relevantly provides that:

" If the Minister so requests, the payee shall furnish to

the Minister, as soon as practical after such date as the

Minister specifies, a report on the activities by the

payee in connection with the approved project, being a

report containing such particulars as are specified by

the Minister; "

18. By s. 12 of the Community Employment Act, the consolidated revenue fund is appropriated to the extent of $300 million for the purposes of payments made, and expenditure incurred, under that Act in respect of the financial year commencing on 1 July 1983, and subsequent financial years payments are to be out of moneys appropriated by Parliament for that purpose.

19. The approved project on which the applicant was engaged was the installation of Council stormwater drainage in Summer Street, Deception Bay within the Shire of Caboolture. The total cost of that approved project was $93,314.00, $72,163.00 of which was contributed pursuant to the Community Employment Program ('CEP').

20. On 28 August 1986, the Shire Clerk on behalf of the Council forwarded to the CEP Secretariat an application for projects, one of which was the stormwater drainage at Summer Street. The application detailed that the project was expected to last 26 weeks and that it was expected that six long-term unemployed persons would be recruited for the project. The application was supported by a certificate signed by the Shire Clerk which concluded:

" I certify that the work to be performed by the proposed

project will be additional to that which would otherwise

be performed and will comply with all Municipal, State

and Commonwealth laws and regulations relating to the

projects operation. "

21. On 21 November 1986, the Joint Secretariat of the Community Employment Program approved the project, the subject of the application by the Council. The grant of approval was made subject to a number of conditions contained in a letter from the Joint Secretariat to the Council dated 28 November 1986.

22. The grant was further conditional upon the requirement that the Council, as project sponsor of the said project, abide by the Community Employment Program guidelines for project sponsors.

23. So far as the conditions are concerned, those relevant for present purposes are the following:

" Sponsoring organisations shall:

(a) Abide by the Community Employment Program Guidelines

for Project Sponsors (October 1986).

(b) Assume all normal employer responsibilities

including the securing of all appropriate insurances

(such as workers' compensation, public liability)

and the meeting of appropriate award wages and

conditions;

. . . .

(c) Comply with all Municipal, State and Commonwealth

laws and regulations relating to project operations.

. . . .

(g) Open a separate bank account for grant funds, keep

appropriate records of income and expenditure and

commit and expend grant funds according to the

approved budget for that project:

. . . .

(h) Any identified interest accrued on grant funds must

be accounted for and expended on approved

activities....

. . . .

(i) Assist participants to obtain permanent employment

following CEP participation by providing a written

reference, or statement of service and releasing

participants to attend both job interviews and CES

interviews toward the end of their placements,

subject to the provision of reasonable prior notice.

. . . .

(q) Include, where it is intended to publicly promote

projects, appropriate acknowledgement of the Program

as a source of funding. The Program should be

promoted as a Federal Government initiative jointly

administered by the Commonwealth and State/Territory

Governments. This applies in all cases including

project stationery signs, advertising and media

publicity. Consultation with the Commonwealth

should occur when a sponsor wishes to erect project

identification on the site. CEP promotion material

where supplied by the Secretariat, is to be

displayed prominently on the project. "

24. These conditions were accepted by the Shire Clerk on 15 December 1986.

25. Under the guidelines referred to in condition (1), the Introduction states, inter alia:

" This booklet contains guidelines which are for use by

local government authorities and community groups who

wish to participate as project sponsors under the

Program. "

26. Under section 3A of those guidelines, headed 'Criteria for Funding', the minimum criteria include:

" Sponsors must:

. be capable of managing a CEP grant and project; "

" Projects must:

. conform with the basic CEP aim and objectives; ...

. satisfy requirements of any relevant municipal,

State/Territory and Commonwealth laws and

regulations, including those relating to award wages

and conditions; "

27. The 'Details of Criteria for Funding', indicate that local government authorities are eligible for CEP grants.

" Sponsors are required to:

. demonstrate that they have the structure and

organisation to;

- effectively manage all aspects of the project...

- properly administer funds

- effectively supervise participants

. . . .

. accept all normal employer responsibilities.

Sponsors must assume overall responsibility for the

administration and operation of a CEP project. "

29. By clause 3.7.1 sponsors are required to certify:

" ...that the activity and employment is additional to that

which would normally have been undertaken:

. The work performed must be a new activity.

. The position must be one created for the purpose of

the project and not one which is unstaffed due to

the termination of a previous employee's employment."

30. Finally, in respect of the guidelines, under the heading "Administration of Approved Projects" all vacancies have to be lodged with the local CES office and sponsors are not to recruit from any other source or advertise project vacancies.

31. Under clause 5.5, a passage relied on by the Council, it is stated:

" Where it is intended to publicly promote CEP projects,

sponsors should ensure that appropriate acknowledgment is

made of the Program as a source of funding. The Program

should be promoted as a Commonwealth Government

initiative jointly administered by the Commonwealth and

State or Territory Governments. "

" A variation to a project cannot be implemented until

approval is advised by the Secretariat."

" Sponsors will be required to provide information on the

project, and the expenditure of funds, to the

State/Territory authorities and the CEP Secretariat.

. regular project reports on participants and

financial expenditure, as required;

. an audited statement in a format prescribed by the

State/Territory Authority of expenditure at the

completion of the project. "

35. As the agreed facts indicate, there is no doubt that the project installing stormwater drainage in Summer Street, Deception Bay, on which the applicant worked, was a project approved pursuant to the Community Employment Program, established and carried on pursuant to the Community Employment Act.

36. One limb of the submissions by the Council concerned the formulation of the breach by the Council alleged in the statement of claim, and criticism was made that that particularised breach did not constitute a contravention of s. 26 of the Act. There is some merit in that submission, but in the view I take of the matter the question that has to be asked is whether, on the agreed facts, the Council engaged in unlawful conduct in breach of s. 26 of the Sex Discrimination Act. That question extends to inquiring whether, on the agreed facts, any of the six variants earlier referred to of infringement of s. 26 is made out.

37. It seems to me that there are two possibilities; namely, was the Council, in carrying out an approved project pursuant to the Community Employment Program established and carried on pursuant to the Community Employment Act, performing a function for the purposes of a Commonwealth program? Alternatively, did the Council, in carrying out that approved project, have a responsibility for the conduct of a Commonwealth program? The submission by the Council in respect of this aspect of the matter was that, particularly having regard to the definition of 'Commonwealth program' in the Sex Discrimination Act, the Community Employment Program is properly to be characterised as a program of putting in place funds to enable projects to be carried out.

38. The submission seeks to draw a crucial distinction between a project on the one hand and the program on the other. As a consequence of this primary submission, it was submitted that carrying out a project was not performing a function for the purposes of putting in place of funds to enable projects to be carried out, and therefore it cannot properly be said that the Council, in carrying out the approved project of stormwater drainage was performing a function for the purposes of a Commonwealth program.

39. It seems to me that the concept of a program cannot be circumscribed as submitted by Mr Ure on behalf of the Council. As the definition of 'approved project' in the Community Employment Act indicates, the program on which the Commonwealth embarked by the scheme contemplated by the Community Employment Act, was a program for the creation of additional employment throughout Australia. That program was to be achieved by the approval of projects which were analysed and approved for the creation of employment and in the carrying out of which, conditions were imposed which had the effect of ensuring that long-term unemployed or specially disadvantaged unemployed persons were recruited for the purposes of the project. The projects were monitored by the provision of reports and the submission of accounts to ensure that the program was achieving its object.

40. In the view I take of the matter, carrying out an approved project by the Council was the performing of a function by the Council for the purposes of the Commonwealth Employment Program. Consequently, on the premise that the applicant had been subjected to discriminatory conduct on the ground of her sex in her employment by the Council of the Shire of Caboolture, the Council would have engaged in unlawful conduct in breach of s. 26 of the Sex Discrimination Act.