Howe v NSW Farmers' Association - [2010] NSWADT 101

No judgment structure available for this case.

CITATION: Howe v NSW Farmers’ Association [2010] NSWADT 101

DIVISION: Equal Opportunity Division

PARTIES:
APPLICANT
Deborah Howe
RESPONDENT
NSW Farmers’ Association and NSW Farmers’ (Industrial) Association

FILE NUMBER: 081086

HEARING DATES: 27 and 28 April 2009

SUBMISSIONS CLOSED: 9 May 2009

DATE OF DECISION:
23 April 2010

BEFORE: Pritchard S - Judicial Member; O'Sullivan M - Non-Judicial Member; Lowe A - Non-Judicial Member

LEGISLATION CITED: Industrial Relations Act 1996 (NSW)
Anti-Discrimination Act 1977 (NSW)
Administrative Decisions Tribunal Act 1997 (NSW)
Disability Discrimination Act 1992 (Cth)

CASES CITED: Adams v University of Western Sydney [2001] NSWADT 19 Briginshaw v Briginshaw (1938) 60 CLR 336
Carr v Baker (1936) 36 SR (NSW) 301
Commissioner of Corrective Services v Aldridge [2000] NSWADTAP 5
Commissioner of Corrective Services v Aldridge [2000] NSWADTAP 5
Commonwealth v HREOC at 493
Commonwealth v Human Rights and Equal Opportunity Commission (1997) 147 ALR 469
Director-General, Department of Community Services v MM [2003] NSWSC 1241
Employment Advocate v Williamson (2001) 111 FCR 20 Ferrus v Qantas Airways Ltd [2006] FCA 812
Gama v Qantas Airways Limited (No 2) [2006] FMCA 1767
Graham v State of NSW (Director General, NSW Department of Health, in respect of Ambulance Service Division) [2008] NSWADT 270
Greater Taree City Council v Craig Michael Peck [2002] NSWCA 331
Greater Three City Council v Craig Michael Peck [2002] NSWCA 331
Gurnett v Macquarie Stevedoring Co Pty Ltd (1955) 72 WN (NSW) 261
Haines v Leves (1987) 8 NSWLR 442
IW v City of Perth (1997) 191 CLR 1
Jones v Dunkel (1959) 101 CLR 298
Luxton v Vines (1952) 85 CLR 352
Luxton v Vines (1952) 85 CLR 352
Nominal Defendants v Owens (1978-79) 22 ALR 128 Penhall-Jones v State of New South Wales [2007] FCA 925 Purvis v State of New South Wales (2003) 217 CLR 92 Qantas Airways Limited v Gama (2001) 167 FCR 537 Rainsford v Victoria (2007) 167 FCR 1
Rainsford v Victoria (2008) 167 FCR 26
Sasterawan v SSS Electronics Pty Ltd [2006] NSWADT 140 Sharma v Legal Aid (Qld) (2002) 115 IR 91
Sharma v Legal Aid (Qld) (2002) 115 IR 91
Squillacioti v Roads & Traffic Authority of New South Wales & Anor [2002] NSWCA 133
Squillacioti v Roads & Traffic Authority of New South Wales & Anor [2002] NSWCA 133
State of Victoria v McKenna (1999) 140 IR 256
State of Victoria v McKenna (1999) 140 IR 256 at [42]-[43]
Turner v State Transit Authority [2004] NSWADT 89
Waters v Public Transport Corporation (1991) 173 CLR 349

REPRESENTATION:
APPLICANT
Mr Austin of counsel
RESPONDENT
P Thew, barrister

ORDERS: Complaint dismissed

REASONS FOR DECISION

1 Since her retirement as a registered nurse and a member of the Australian Defence Force, the applicant has bred cattle. She breeds a breed known as “Square Meaters”. She owns approximately 50 head of cattle. She has at all relevant times been a member of the NSW Farmers’ Association (the first respondent). She is chairperson of the Watagan branch of the first respondent, and also of the first respondent’s Hunter District Council.

2 The first respondent represents the interests of pastoral and agricultural producers in New South Wales and the Australian Capital Territory. The NSW Farmers’ (Industrial) Association (the second respondent) is a registered industrial organisation within the meaning of the Industrial Relations Act 1996 (NSW) (IR Act).

3 On 21 July 2006, the Executive Council of the first respondent met and, inter alia, elected the members of its various commodity advisory committees. Those committees include the Cattle Industry Committee (the Cattle Committee). The applicant was elected to the Executive Council and subsequently as a member of the Cattle Committee.

4 In the 2006-2007 year, the Cattle Committee met face to face on two occasions: first, on 21 July 2006 in order to elect a new chairperson; and second, in about August 2006, in part for the purpose of allocating roles for the upcoming year to Committee members.

5 On 9 July 2007, the applicant wrote to Mr Jock Laurie, president of the first respondent, making “a formal complaint of bullying, harassment, vilification and discrimination” by the chairman of the Cattle Committee, Mr Robert Barwell. The letter of complaint raised six allegations, namely:

the “

smear and whisper campaign

allegation

(b) Mr Barwell’s decision to exclude the applicant from attending a conference of the Cattle Council of Australia in Canberra as first alternate delegate without discussing the matter with her prior to taking the decision (the “exclusion from attendance” allegation);

(c) Mr Barwell’s “inappropriate reaction” to a complaint raised by the applicant about the behaviour of another delegate from Queensland at the annual general meeting of the Cattle Council of Australia held in Adelaide in November 2006 (the “inappropriate reaction” allegation);

(d) Mr Barwell’s allocation to the applicant of “only one menial task … preferring instead male members of the Committee … for tasks, roles and appointments on behalf of the Committee” (the “menial task” allegation);

(e) Mr Barwell’s marginalisation and avoidance of the applicant, “depriving [her] of the opportunity to take [her] concerns up directly with him” (the “marginalisation and avoidance” allegation);

(f) Mr Barwell’s conduct in July 2006, at the first meeting of the Cattle Committee attended by the applicant, in implying that her role on the Committee was “to get coffee for the other … members” (the “coffee remark” allegation).

6 On 11 July 2007, the applicant lodged a complaint with the Anti-Discrimination Board alleging discrimination on the ground of sex in the areas of goods and services (s 33) and industrial associations (s 28) of the Anti-Discrimination Act 1977 (NSW) (AD Act). The complaint was based upon the six allegations identified in the applicant’s letter of 9 July 2007 to Mr Laurie. However, in her complaint to the Anti-Discrimination Board, she added that in relation to item 1 (the alleged “smear and whisper” campaign) a Mr Keatinge was also involved; and in relation to item 6 (the “coffee remark” allegation), “it was Mr Keatinge who implied that [her] role on the committee was to get coffee for the other (male) members” and “Mr Barwell joined in the ridicule”.

7 Within weeks of the applicant’s complaint being lodged, the first respondent engaged Worklogic Consulting Pty Limited to investigate her allegations. The investigation was carried out by Ms Rose Bryant-Smith of Worklogic Consulting Pty Limited. In a report dated 17 August 2007 (the Worklogic report), Ms Bryant-Smith concluded that two of the allegations were proven on the balance of probabilities, namely the “exclusion from attendance” allegation and the “coffee remark” allegation.

8 By letter to the applicant dated 5 September 2007, the chief executive of the first respondent advised that the Board of Directors had considered and accepted the findings of the Worklogic report, and had recommended that Mr Barwell apologise to her with respect to the conduct referred to in the two allegations. Further, the Board was in the process of finalising and adopting an Elected Representatives Code of Conduct “to reiterate the standard of conduct expected of all Elected Representatives”. The evidence before us was that in September 2008, the first respondent introduced a Code of Conduct for Executive Council and Advisory and Specialist Commodity Committees, as well as a policy on “Bullying, Harassment and Obligations for Office Holders”. The policy was in the pipeline before the commencement of the proceedings.

9 On 12 August 2008, the President of the Anti-Discrimination Board referred the complaints to the Equal Opportunity Division of the Administrative Decisions Tribunal (the Tribunal) for hearing in accordance with s 93C of the AD Act.

10 On 21 October 2008, the applicant filed points of claim in the Tribunal, relying on all six of the allegations the subject of her original complaint to the Anti-Discrimination Board. In her points of claim, she alleged that notwithstanding the recommendation that Mr Barwell proffer an apology to her, he was not directed to do so, and no apology had eventuated. The applicant relies on s 28(2)(c) and s 33(1) of the AD Act.

11 In summary, the application raises contested issues of fact, as well as issues of construction of the provisions of the AD Act upon which the applicant relies.

12 In relation to the contested issues of fact, the Tribunal must decide whether the evidence in respect of each of the 6 allegations establishes to the requisite standard that the applicant has been discriminated against “on the ground of [her] sex” within the meaning of s 24 of the AD Act, or whether as the respondents submit the “blunt, critical or insensitive comments allegedly made” are insufficient for the purposes of proving unlawful sex discrimination. By contrast, it was the respondents' case that it is the applicant who made insensitive comments and/or who refused to participate in the work of the Cattle Committee.

13 In relation to the issues of construction, it arises first to consider whether for the purposes of s 28 of the AD Act, the first respondent is an industrial association; and second, whether membership of the Cattle Committee is capable of falling within the concept of provision by the first respondent of goods and services for the purposes of s 33 of the AD Act.

14 In her own case, the applicant gave evidence.

15 For the respondents, some twelve witnesses were called to give evidence. These included the chairman of the Cattle Committee, Mr Barwell, the past chairman of the Cattle Committee, Mr Keatinge, and other Executive Council members and members of the Cattle Committee, Mr Stuart Heriot, Mr Michael O’Brien, Mr Terry Toohey and Mr Richard Chamen.

16 In addition, evidence was given for the respondents by Mr Richard Clark, senior vice president of the first respondent; Mr David Inall, executive director of the Cattle Council of Australia; Mr Graham Morphett, Executive Committee member of the second respondent; Mr David Clarke, who was appointed the applicant’s mentor following the July 2006 Executive Council elections until he resigned from the position in about July 2007; Ms Edwina Lord, previously a policy analyst at the first respondent who worked on policy issues related to the Cattle Committee and the Goat Committee; and Deborah Frater a hobby farmer who together with her family also breeds, amongst others, stud Square Meaters, the breed of cattle bred by the applicant.

17 Whilst neither the evidence of the applicant nor that of the respondents’ witnesses was strictly ordered in terms of each of the six allegations, it is convenient to summarise the evidence in relation to each of the allegations. Moreover, it is sensible to do so chronologically, rather than in the order made in the original complaint.

The “coffee remark” allegation

18 In relation to the “coffee remark” allegation, the applicant gave evidence that at the first meeting of the newly constituted Cattle Committee she attended on 21 July 2006, one of the members of the Committee Mr Nick Keatinge said loudly words to the following effect”

"I’m glad to have another woman on the Cattle Committee. Jan [Shorrock, former member of the Cattle Committee] used to get the coffee for us."

19 According to the applicant, “Mr Barwell was amused by Mr Keatinge’s statement and joined him in laughing at the remark that had been made.”

20 In addition to the applicant and Messrs Barwell and Keatinge, the meeting was attended by Mr Stuart Heriot, Mr Michael O’Brien, Mr Terry Toohey and Mr Richard Chamen.

21 In their evidence, both Mr Barwell and Mr Keatinge denied that Mr Keatinge made any such statement.

22 It was, however, generally agreed by the respondents’ witnesses (other than Mr Keatinge) that a comment about "making coffee" was made by someone. So much was accepted by the respondents in their closing submissions.

23 Mr Barwell’s evidence was that he found it strange that he had been found “guilty” of the “coffee remark allegation” in the Worklogic report in circumstances in which the applicant now alleges that the coffee remark allegation was made by Mr Keatinge. In these circumstances, Mr Barwell was not prepared to apologise for things he had not done. Further, Mr Barwell's evidence was that the allegation about what was actually said had changed from time to time, and that what was actually said to the applicant was to the effect of: "At least you now know your role”. Mr Chamen gave evidence to similar effect.

24 Mr Barwell’s evidence was that the remark "had nothing to do with" the applicant’s sex, and was made to her because she was a new member of the Committee. Mr Barwell did not agree that it was inappropriate or demeaning because of the applicant’s sex. Rather, his evidence was that such remarks should not be made when someone gets up to make the coffee. Mr Barwell agreed that the comment was “in poor taste”. He accepted, however, that he “probably chuckled”.

25 Mr Keatinge’s evidence was that he did not make the remark and that he did not hear any such remark being made. However, had he heard the remark being made, he would have asked the maker to retract it. In his view, it was not the job of any member of the Cattle Committee, male or female, to get the coffee.

26 Mr Chamen’s evidence was that he heard a remark about coffee, but not as alleged by the applicant. Mr Chamen had his head down reading at the time, and did not recall who made the remark, but said that he did not recall it being made by Mr Keatinge, and that it was more “along the lines of friendly banter”.

27 Mr Heriot recalled that a remark was made, but could not recall the exact words used. Mr Heriot denied that any such remark was made by him.

The menial task allegation

28 In relation to the “menial task” allegation, the applicant's evidence was that in May 2007, she asked Ms Lord, in the presence of fellow member of the Cattle Committee, Mr Hamish Munro, whether there was anything she could do for the Cattle Committee. According to the applicant, Mr Munro was surprised that no jobs or tasks had been assigned to her.

29 According to the applicant, on 27 May 2007, she received a phone call from Mr Barwell “once again angered” that she had not come to him before speaking with Ms Lord and Mr Munro. After a while, Mr Barwell said “get on to the Meat and Livestock Association [MLA] website and bone up on the LPA [Livestock Production Assurance Program] rules because full accreditation was being forced upon everyone on 3rd March 2008”. The applicant’s evidence was that she subsequently read all the available material and spoke to the MLA’s media affairs manager who advised that a firm of consultants was working on a communications plan, and that no help was required from her. She also gave evidence that she was not asked by Mr Barwell to report back to the Committee in relation to the LPA program.

30 Mr Barwell’s evidence was that at the August 2006 face to face meeting of the Cattle Committee, the applicant had been allocated the role of overseeing the Beef Reference Group.

31 Mr Barwell’s evidence was that the role involved the applicant contacting members of the Reference Group by email, disseminating emails to them, seeking their views and asking them questions. Mr Barwell’s evidence was that this was an important role which required the applicant to manage the process and ask members their opinions on issues. Mr Barwell said that he considered that the Beef Reference Group role would give the applicant, as a newly elected Committee member, an understanding of the issues facing the industry and the Committee, and a sense of how the constituents felt about particular issues.

32 Mr Barwell also gave evidence that not all newly elected members of the Cattle Committee were allocated roles in their first year (and that he himself had not been allocated any role in his first year), yet the applicant had been allocated two roles. Further, the role of overseeing the Beef Reference Group role was one usually allocated to newly elected Committee members. This had been so in the cases of amongst others Ms Shorrock and Mr Sam Gunn.

33 Mr Munro’s evidence was that he was initially surprised that the applicant had not been given work to do for the Committee. However, he subsequently spoke with Mr Barwell and learned that she had been given work to do on the Beef Reference Group.

34 Mr Munro’s evidence was that roles allocated to newly elected members of the Cattle Committee often consist of “watching briefs” (which involve keeping emails in the correspondence loop and making comments when required) or similarly low profile roles that enable the member to familiarise themselves with the Committee’s functions. Mr Munro was first appointed to the Cattle Committee in about June 2004. In his first year as a member, he was given a “watching brief” in relation to the National Livestock Identification System (NLIS). In Mr Munro’s observation and experience, the applicant had had a level of responsibility commensurate with someone of her experience on the Committee.

35 When shown the agenda for the August 2006 meeting, and the absence of any task allocated to the applicant’s name, Mr Munro explained that this was because she was a newly elected member, but that by the end of the meeting she had been allocated the role in relation to the Beef Reference Group. By contrast, the agenda recorded the allocation of a task to Mr Toohey, the other newly elected member of the Cattle Committee, because Mr Toohey was already a member of the Dairy Committee.

36 Further, the respondents relied on evidence that by about October 2006, the applicant had failed to progress the work she had been allocated in relation to the Beef Reference Group, and that Ms Edwina Lord, a policy analyst with the first respondent, ultimately sent emails to members of the Group. The respondents’ unchallenged evidence was that at the time of her election to the Cattle Committee in July 2006, the applicant was not computer literate and was not familiar with the use of her email system. Ms Lord’s evidence was that in October 2006, the applicant did not know how to check her emails. Ms Lord showed the applicant how to check her emails when she was in the office for an Executive Council meeting, and there were approximately 200 unopened emails in her inbox. Ms Lord ultimately sent the emails. The applicant did not dispute Ms Lord’s evidence in this regard.

37 Mr Barwell’s evidence was that he did not regard the applicant in relation to the Beef Reference Group as “working hard or participating appropriately”.

38 The respondents also relied upon the applicant’s “concession” during the Worklogic investigation that had she been more computer literate she may have been perceived to be more responsive in her note on the Beef Reference Group.

39 Mr Barwell’s evidence was that notwithstanding that the applicant had not completed her work in relation to the Beef Reference Group, in about April 2007, following a comment from Mr Munro, he allocated her a second role, which was to become the Committee's "expert on the LPA Program". According to Mr Barwell, LPA is “a major cornerstone of the beef industry’s food safety program”. Mr Barwell's evidence was that he asked the applicant to telephone him so that he could explain what was involved in this role, and that when she failed to do so, he telephoned her to explain the process. His evidence was that he said to the applicant words to the following effect:

“It will not be an easy task since there will be a fair bit of pressure as a result of the accreditation requirements coming into effect. I suggest you have a look at the information MLA has on its website about LPA, and talk to MLA staff involved in LPA You should do your research, think about the role, and let me know whether you want to do it”.

40 Mr Barwell’s evidence was that the applicant subsequently informed the Committee that the MLA needed no assistance, and that she would not do any more work on the LPA Program. Mr Barwell telephoned the LPA and discovered that this was incorrect, and asked someone else to complete the role for the MLA.

The inappropriate reaction allegation

41 In November 2006, the applicant attended the Cattle Council of Australia meeting in Adelaide, together with other Cattle Committee members including Mr Barwell, Mr Chamen and Mr Heriot.

42 The applicant’s evidence was that at pre-dinner drinks at the end of the conference, a Mr John Atherton, one of the two Queensland representatives present, said to her words to the effect of "the association has no time for hobby farmers or women" and that "hobby farmers are the scourge of the earth and are responsible for residue in bobby calves".

43 Mr Barwell's evidence was that he did not witness the conversation between the applicant and Mr Atherton, but that Mr Atherton had made similar comments to him in the past about being a "hobby farmer", and that he had found those remarks "extremely unpleasant".

44 Mr Chamen, gave evidence that from the way Mr Atherton was slurring his words, he thought he had been drinking and that he was being aggressive and argumentative. He recalled Mr Atherton saying words to the effect of "What's your position with NSWFA? What do you do? What are you doing here?"

45 Mr Chamen also gave evidence that he told the applicant at least three times that they should "move on" away from Mr Atherton, but that she insisted on staying and arguing. Mr Chamen told her he was leaving, and then did so.

46 Mr Heriot's evidence was that he recalled the conversation with Mr Atherton, not the precise words, but that words were said which he "didn't appreciate being said about a member of our Committee". Mr Heriot also said that he made a comment to Mr Atherton in the applicant’s defence.

47 The next day, the applicant ran into Mr David Inall, the executive director of the Cattle Council of Australia, who asked her how she had enjoyed the conference. The applicant replied that she had experienced a confrontation with Mr Atherton. Her evidence was that Mr Inall said to her that Mr Atherton was “a known chauvinist” and that he had caused trouble before.

48 Mr Inall’s evidence was that the applicant told him that Mr Atherton said to her "she was a hobby farmer and she didn't like being spoken to like that." Mr Inall denied saying that Mr Atherton was a known chauvinist or that he had caused trouble before, as alleged by the applicant. Mr Inall’s account was that he said words to the effect: “I’m sorry to hear that. That sounds inappropriate and I would recommend you talk to Bill Bray, Cattle Council chairman, regarding your conversation with John Atherton”.

49 Mr Inall later found the applicant and took her to speak with Mr Bray, President of the Cattle Council of Australia. The applicant informed Mr Bray about the incident.

50 Mr Inall's evidence was also that the Cattle Council of Australia has developed a Code of Conduct which was adopted by its Executive Committee in February 2007 and endorsed by the full Council in May 2007.

51 The applicant’s evidence was that a week after her conversation with Mr Bray, Mr Bray telephoned her to advise that he had spoken to Mr Atherton about the matter, and that Mr Atherton “refused to acknowledge the problem”.

52 Mr Barwell’s evidence was that about nine days later he was sitting with Mr Atherton having breakfast in a hotel dining room, when Mr Atherton received the call from Mr Bray on his mobile phone.

53 According to the applicant, the following Friday she received a late night telephone call from Mr Barwell “demanding an apology” from her for not speaking to him before speaking to Mr Bray. The applicant’s evidence was that Mr Barwell said he “was very embarrassed by your actions and John told me you had got him into trouble” and “you have to apologize to me”. She surmised that Mr Barwell was very angry or had been drinking, or both. Her evidence was that since that conversation, she has “avoided conversing with either Mr Barwell or Mr Keatinge”.

54 Mr Barwell’s evidence was that he had checked his telephone records, and the conversation occurred at 8.30 pm on a Sunday night (although nothing in particular turned on this). Mr Barwell consistently denied being angry, abusive or inebriated. His evidence was that he said to the applicant:

“Mr Atherton has made it clear in fairly blunt terms that he will not be apologising to you. In both Mr Bray’s and my opinion, we are unlikely to get any further with Mr Atherton in regards [sic] his behaviour or comments in Adelaide. I regret we were unsuccessful”.

55 Mr Barwell’s evidence was that at no time during the conversation he asked for or implied that the applicant should apologise to him for anything. When it was put to him in cross-examination that that there was no reason for him to have telephoned the applicant, he said he did so because she was a member of the Cattle Committee. Further, he disagreed that he at any stage asked for or demanded an apology, saying that she "had not done anything wrong".

The marginalisation and avoidance allegation

56 It is not altogether clear upon what particular evidence the applicant relied in relation to the marginalisation and avoidance allegation. In her evidence, however, she appeared to attach significance to the following matters.

57 The applicant gave evidence that at the second face to face meeting of the Cattle Committee in August 2006, in response to a request by Mr Barwell for members to provide for discussion a list of issues concerning farmers in their district, she spoke about NLIS tags failing in service. According to the applicant, Mr Barwell was dismissive of her complaints and said she “must have been putting them in incorrectly”.

58 At the August 2006 meeting, the applicant also spoke about collusion amongst buyers at the sale yards to hold down prices, and suggested the establishment of a code of conduct to cover the terms of trade in cattle sales similar to that adopted by the horticulture industry. According to the applicant, this matter “was rejected without discussion by Mr Barwell and Mr Keatinge”.

59 The applicant also alleged that during lunch, when she was in a conversation with Ms Lord. Mr Keatinge made a comment about the two women being “girls together". According to Ms Howe, she “felt as though he was insinuating that we were lesbians”. During a tea break later during the same meeting, the applicant found herself standing next to Mr Keatinge and attempted to make conversation with him. According to the applicant, it became obvious to her that Mr Keatinge did not wish to converse with her, so she said: “Nick are your misogynist tendencies latent or innate”.

60 The respondents’ evidence in relation to the exchange concerning the NLIS tags was as follows.

61 Mr Barwell denied that he said words to the effect of "You obviously put them in wrong", and said that he was not dismissive of the applicant’s comments.

62 Mr Keatinge’s evidence was that no meeting of the Cattle Committee was held in August 2006, rather that a meeting was held on or about 5 September 2006. In our view, nothing turns on this. Mr Keatinge said that he did not hear anything said in relation to the NLIS tags, that Committee members "don't go belittling" other Committee members, and that he had not belittled the applicant or spoken to her in anything other than an appropriate manner. He also gave evidence that the issue of NLIS tagging was discussed at every meeting, and that he had no recollection of this particular conversation.

63 In relation to the cattle bred by the applicant, Mr Keatinge gave evidence that at the meeting on or about 5 September 2006 he said words to the effect:

“I’ve been in the cattle industry for 30 years and never heard of the breed in my life”.

64 In cross-examination, Mr Keatinge elaborated that he thought the applicant was talking about the size of the breed, and that to this day he has never heard of the breed.

65 Mr Keatinge accepted that he may have used words to the effect of “What are you girls doing together”, but denied insinuating that the applicant and Ms Lord were lesbians. Before reading the applicant’s statement, Mr Keatinge did not understand the word “misogynist” and said that if he did walk off as alleged, it would have been because the applicant was talking “double Dutch” to him.

66 Mr Chamen’s evidence was that Mr Barwell did speak about the NILS tags in the tone or manner alleged, or in a ridiculing way, and that Mr Barwell said in a matter of fact manner words to the effect of: "Perhaps you put them in wrong”. Mr Chamen said that there was no malice in Mr Barwell's words, that they were not a slur on the applicant’s ability, and that nothing belittling was said. Mr Chamen agreed that it was a common industry issue for NILS tags to fall out. Like Mr Keatinge, Mr Chamen had never previously heard of the breed of cattle known as square meaters.

67 Mr Munro denied that Mr Barwell said the words "You obviously put them in wrong", or that Mr Barwell was dismissive. Like Mr Chamen, his evidence was that Mr Barwell said words to the effect of "did you put them in wrong?" Mr Munro disagreed that any other member of the Committee laughed, given that the issue of NLIS tagging was a major problem and the question was a common one. The issue of electronic tags was one which was “close to [Mr Munro’s] heart”. In relation to the issue of collusion amongst buyers, Mr Munro’s evidence was that the issue had been raised several times at meetings, and was always a difficult matter to prove. According to Mr Munro, the applicant’s comments on this issue were no more subject to “belittling” than when the issue had been raised previously.

68 In relation to the allegation that Mr Keatinge said words to the effect that the applicant and Ms Lord were being "girls together", Ms Lord denied that Mr Keatinge said any such words, and also denied that she said words to the effect that "he is always like that with women".

69 Mr Keatinge’s evidence was that he had no recollection of having said such words, and denied insinuating that the applicant and Ms Lord were lesbians.

70 Mr Chamen gave evidence that he heard the applicant say to Mr Keatinge words to the effect of "Nick, are your misogynistic tendencies latent or innate”, and that he considered the remark to be inappropriate. Mr Chamen believed that Mr Keatinge made the right decision to walk away.

The “exclusion from attendance” allegation

71 The next allegation relates to the attendance of Mr Terry Toohey, who was identified as “second alternate delegate”, at the second Cattle Council of Australia meeting for the year 2006/2007 held in Canberra in the place of Mr Michael O'Brien, rather than the applicant who was the "first alternate delegate".

72 The applicant’s evidence was that she first became aware that Mr Toohey had attended the second Cattle Council meeting when she attended the May 2007 meeting of the Cattle Committee.

73 Mr Barwell gave evidence that the applicant was identified as "first alternate delegate" to the Cattle Council of Australia by reason of her having being elected to the Cattle Committee earlier in time than Mr Toohey. Mr Barwell's evidence was that he had adopted a policy commenced by Mr Keatinge to alternate attendance by the first and second alternate delegates at Cattle Council of Australia meetings. On that basis, when Mr Munro advised him that he could not attend the Adelaide Cattle Council meeting, Mr Barwell decided that as first alternate the applicant should attend the meeting. As the applicant had attended the first meeting in Adelaide, Mr Barwell had decided that Mr Toohey should attend the second meeting in Canberra.

74 Mr Keatinge’s evidence likewise was that alternate delegates only attend one Cattle council meeting if there are funds available, and that it was not a decision left to the alternate delegate.

75 Mr Chamen (who is currently chairman of the Cattle Committee) confirmed that this policy had been introduced by Mr Keatinge, and that Jan Shorrock, a former member of the Cattle Committee, had attended meetings of the Cattle Council on that basis.

76 The applicant’s evidence was that she would have agreed to this system if she had known about it, but she was not told. Mr Barwell's evidence was that he had told the applicant, as well as the remainder of the Committee about the system.

The “smear and whisper” campaign allegation

77 The “smear and whisper campaign” allegation concerns comments attributed by the applicant to her former mentor Mr David Clarke during a telephone conversation on 15 June 2007.

78 The applicant’s evidence was that on 15 June 2007, she telephoned Mr Clarke, and spoke of her concerns. According to the applicant, Mr Clarke said words to the effect of “I knew you had problems with Bob Barwell and the Cattle Committee” and “Bob Barwell is not a good Chairman and there are problems with the Cattle Committee”. Further in her statement of evidence, the applicant said: “David Clarke then said he had heard I was the subject of a smear and whisper campaign and he supposed he should have telephoned me when he knew I had problems”.

79 According to the applicant, Mr Clarke continued, saying “the allegations have probably been raised to prevent your re-election to the Cattle Committee, in all probability you knocked out one of Bob Barwell’s mates at the last election and this is the way NSWFA Committees work”.

80 In cross-examination, the applicant agreed that it was not Mr Clarke who used the words "smear and whisper campaign". However, when questioned by the Tribunal in relation to this evidence, the applicant said that it was.

81 Mr Clarke denied using the words “smear and whisper campaign”, saying that he "does not use those words". His evidence in this respect was consistent: during the Worklogic investigation, in his statement and in cross-examination. Mr Clarke's evidence in relation to the “smear and whisper campaign” allegation was that:

(b) all of his responses were prefaced with words to the effect of "on the basis of what you are telling me, and I don't know for a fact that your accounts are true...";

(c) there was no action within the Executive Council to discredit the applicant, however other Committee members had raised with him their displeasure in relation to her attitude and performance, including that she had told "much bigger cattle farmers how to run their business" and that the other Committee members could not work with her;

(d) because he was her mentor and because Mr Keatinge had told him he should intervene, he said to her words to the effect of "I am aware of problems within the Cattle Committee and it has been indicated to me that you were at the centre of these problems”;

(e) while he "really felt for" the applicant and felt that she was genuine, his interest “in the whole thing was to make sure her interests were served”;

(f) he had been trained in a pastoral role to believe everything he was told, that he had "put on his pastoral care hat", and that he was offering his support to the applicant on that basis; and

(g) he resigned as the applicant’s mentor by letter dated 12 July 2007 to Mr Laurie not because he wanted to distance himself from the applicant or because of pressure from Mr Keatinge and other "friends of the Association". Rather, he felt he could no longer play a constructive role or be of profit as her mentor because she had “misrepresented” what he had said, and he was "disturbed that some of his statements had been used in a manner that he had not meant them".

82 Significantly, as well, Mr Clarke’s evidence was that he was not present at any of the incidents the subject of the applicant’s complaints.

83 Mr Barwell’s evidence was that he did not have any “mates” standing for the Cattle Committee in the 2007 election, and he was unaware of any campaign to prevent the applicant from nominating for the Cattle Committee (or any other Committee). However, in cross-examination he volunteered that he was “not unhappy” that the applicant was not re-elected to the Cattle Committee, and that he had advised the president of the first respondent, Mr Laurie, when they met at Sydney airport that two members of the Cattle Committee should probably put up their hands for election to another committee. Mr Barwell’s evidence was that the applicant did not “fit in”. In response to a question as to whether he would change anything about his interactions with the applicant, Mr Barwell responded that he “might have put more pressure on her to do more”, that “we are all volunteers” and that “if they don’t do what they are asked to do, they drop out”.

84 The applicant alleges direct discrimination on the ground of sex by an industrial organisation (s 28) and in the provision of goods and services (s 33).

85 Section 24(1)(a) provides the following definition of what constitutes direct discrimination on the ground of sex:

86 Section 4A provides:

87 Section 28(2) provides as follows in relation to unlawful discrimination on the ground of sex by an industrial organisation against a person who is a member of the industrial organisation:

88 The applicant relies on s 28(2)(c).

89 Section 33 provides as follows in relation unlawful discrimination on the ground of sex in the provision of goods and services:

90 In the instant case, there was no direct evidence of sex discrimination. That is, even if each of the events is found to have occurred as alleged by the applicant, there was no direct evidence that the treatment of the applicant was “on the ground of” her sex (as required by s 24(1)). No witness gave evidence to that effect. No document revealed that the applicant’s sex was a ground for her treatment. Accordingly, any finding by the Tribunal of unlawful sex discrimination will necessarily involve the drawing of inferences. It is, of course, not unusual in a case of direct discrimination for the drawing of inferences to be required.

91 As the respondents submitted, the process for making findings in relation to claims under anti-discrimination legislation, including the applicable standard of proof and the drawing of inferences, is subject to well established principles. These can be summarised as follows.

92 First, the applicant bears the onus of proving each of the elements of direct sex discrimination under s 24(1)(a) of the AD Act (generally as those elements are set out in Commissioner of Corrective Services v Aldridge [2000] NSWADTAP 5): Sharma v Legal Aid (Qld) (2002) 115 IR 91 at [40]; Ferrus v Qantas Airways Ltd [2006] FCA 812 per Collier J at [48].

93 Second, each of those elements must be proved to the civil standard of proof in accordance with the principles identified in Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-2: see Employment Advocate v Williamson (2001) 111 FCR 20 at [65]; Qantas Airways Limited v Gama (2001) 167 FCR 537 at [128] per Branson J. In Briginshaw v Briginshaw Dixon J said at 361-362 as follows:

94 Third, the principles relevant to the drawing of inferences in discrimination cases were distilled in Sharma v Legal Aid (Qld) (2002) 115 IR 91 per Heerey, Mansfield and Hely JJ at [40] and more recently in Gama v Qantas Airways Limited (No 2) [2006] FMCA 1767 at [7]-[9]. These can be summarised as follows:

Sharma

"it is more probable that it exists than that it does not"

Gama (No 2)

Carr v Baker

"There must be evidence affording ground for treating it as a matter existing as a matter of inference and not of conjecture. ...the existence of a fact may be inferred from other facts when those facts make it reasonably probable that it exists; if they go no further than to show that it is possible that it may exist, then its existence does not go beyond mere conjecture. Conjecture may range from the barely possible to the quite possible. Inferences of probability may range from a faint probability -- a mere scintilla of probability such as would not warrant a finding in a civil action...to such practical certainty as would justify a conviction in a criminal prosecution."

Carr v Baker

Jones v Dunkel

"One does not pass from the realm of conjecture into the realm of inference until some fact is .found which positively suggests, that is to say provides a reason, special to the particular case under consideration, for thinking it likely that in that actual case a specific event happened or a specific state of affairs existed."

Nominal Defendants v Owens

Gurnett v Macquarie Stevedoring Co Pty Ltd

Luxton v Vines

Greater Taree City Council v Craig Michael Peck

Squillacioti v Roads & Traffic Authority of New South Wales & Anor

State of Victoria v McKenna

95 Having regard to the foregoing authorities, the respondents submitted that the serious nature of the allegations and the grave consequences of an adverse finding must be taken into account by the Tribunal, and particular care must be taken in making a finding that an event did in fact occur and that it did in fact occur as alleged. Further, the respondents submitted that a state of facts that would lead an observer to consider that the applicant’s version is a possible version of what occurred would be insufficient. Rather, a permissible inference would be "a reasonable conclusion as a matter of strict logical deduction from known or assumed facts": Gama (No 2) at [8] and the authorities cited therein.

96 It will be necessary for us to consider whether the first respondent provides services as alleged by the applicant within the meaning of s 33(1) of the AD Act, and whether the impugned conduct in relation to the applicant occurred in her capacity as member of an industrial organisation. These are primarily issues of statutory construction, and questions of law.

97 Before turning to those issues, however, we first consider whether the material relied upon by the applicant is capable of establishing to the requisite standard a causal nexus between her sex and the impugned conduct for the purposes of s 24(1)(a) of the AD Act.

98 In order to establish direct discrimination, the applicant must show:

Purvis v State of New South Wales

Purvis

Commissioner of Corrective Services v Aldridge

99 To establish less favourable treatment, the applicant must show that the respondents treated her "less favourably" than the respondents treated or would have treated another person of the opposite sex in circumstances that are the same or not materially different: for example Commonwealth v Human Rights and Equal Opportunity Commission (1997) 147 ALR 469 per Sackville J at 493.

100 The relevant comparison requires an assessment that the treatment is objectively less favourable than the treatment of a real or hypothetical comparator: for example Haines v Leves (1987) 8 NSWLR 442 at 457; Purvis at [222]-[225]. A factual enquiry is ordinarily necessary to determine if the circumstances are the same or not materially different: Commonwealth v HREOC at 493. In consideration of the relevant circumstances it is impermissible to "strip out of those circumstances any and every feature which presents difficulty” to a person with the protected attribute as this would "truly frustrate the purposes of the Act”: see the majority in Purvis at [222].

The respondents’ argument in relation to less favourable treatment

101 The respondents submitted that the evidence did not support a finding of less favourable treatment and, if anything, established that the applicant was provided with beneficial treatment by comparison to some of the male members on the Cattle Committee.

102 The respondents referred to, amongst others, the following matters:

watching brief

LPA expert on the Committee

103 The respondents contended that in truth the applicant’s complaint concerned an alleged failure to accord her special treatment by providing services to her that were not ordinarily provided to members of the Committee. They further pointed to her failure to plead or adduce evidence identifying a real or hypothetical comparator for the purposes of demonstrating less favourable treatment, as required by the majority in Purvis at [222]-[225].

104 In Purvis the majority found (at [224]) that it would be artificial to exclude from consideration all relevant circumstances to the complainant and that there was no basis in the wording of the statute for excluding such circumstances. In the respondents' submission, this meant that the question before the Tribunal was whether a person with the applicant’s qualifications and experience, who bred a comparatively small number of cattle of a unique or little known breed (by comparison to 2000 head or more) who was of the opposite sex, newly appointed to the Committee, who could not check emails and/or could not or refused to perform certain tasks, would have been viewed by Mr Barwell or other Committee members as unresponsive and/or not participating in or contributing to the work of the Committee.

105 In our view, it is neither appropriate nor desirable to descend to this level of specificity in postulating the relevant comparator for the purpose of a claim of direct sex discrimination. In our view, the applicant is required to show that the respondents treated her "less favourably" than they would have treated a male person who had newly joined the Cattle Committee.

106 In Penhall-Jones v State of New South Wales [2007] FCA 925 at [68]-[86], Buchanan J considered the meaning of the words "on the ground that" in s 42 of the Disability Discrimination Act 1992 (Cth) (DD Act). After considering the relevant authorities on causation, including the High Court’s discussion in Purvis of the expression "because of” in s 5(1) of the DD Act, Buchanan concluded as [85] as follows:

‘why’ an action was taken

107 Further, in applying s 24(1)(a) of the AD Act, regard must be had to s 4A which provides that (a) if an act is done for 2 or more reasons, and (b) one of the reasons consists of unlawful discrimination under the Act against a person (whether or not it is the dominant or a substantial reason for doing the act), then the act is taken to be done for that reason.

108 Accordingly, if an inference can be drawn on the evidence available that sex was a reason, at least in part, for the act complained of, regardless of whether it was the dominant or a substantial reason, then the act will be taken to have been done for that reason.

The arguments in relation to the actual “causal factors”

109 In relation to causation, the applicant invited the Tribunal to draw the inference, on the balance of probabilities, that the ground for the less favourable treatment of the applicant was her sex. The applicant submitted that it was ultimately a case of impression as to whether the applicant’s sex was the ground for the acts complained of, but submitted that the Tribunal should draw comfort from the concession of Mr Herriot that it was "probably right” that the applicant had a rough time “because she was a woman and wanted to compete with the rest of them".

110 The respondents submitted that there was “simply no room to draw the relevant inference to conclude that sex was a reason in the face of the contrary direct evidence of the real reasons "why"” and that the only evidence that sex may have been a reason for the doing of the acts complained of amounted to speculation and/or conjecture. According to the respondents, this was not a proper basis for the drawing of inferences.

111 The respondents submitted that in relation to the matters about which the applicant complained, the actual casual factors were that she was a “hobby farmer”, newly elected to the Cattle Committee, and “refusing to participate or being incapable of doing so because of the limitations on her email skills, being antagonistic or a combination of these”. In support of this submission, the respondents pointed in particular to the following evidence:

hobby farmer

she didn't like being spoken to like that

asked members of the Cattle Committee what was going on and it was obvious enough people had unhappy opinions about Ms Howe and were expressing their frustrations... Nick Keatinge mentioned early on that he was having trouble with her attitude"

Mr Toohey said it was remarkable that Ms Howe would tell someone who was a much bigger cattle producer how to do things. Nick Keatinge had just said he had problems with her attitude

:

When you say it may have been to do with her gender?

There's no way of knowing whether it was or not.

Just one of many possibilities?

Yes but also she's a hobby a farmer in their opinion

was anything like the comments

extremely unpleasant

do anything differently

"might have put more pressure on her to do more and contribute more...

we're all volunteers and people will only do what they will do..."

disappointed with

lack of participation in many of the Committee's activities, and her failure to progress the initial and subsequent "Priority Issues" she had been allocated

did not fit in

lack of participation

Coffee Remark

new member of the Committee

112 To be weighed against the evidence relied upon by the respondents above, proper weight must also be given to the following evidence given by the respondents’ own witnesses:

thought

rough ride

probably right

because she was a woman and wanted to compete with the rest of them

113 In relation to Mr Clarke’s evidence, the respondents noted that he then concluded "it was to do with her attitude, and submitted that his evidence amounted to speculation.

114 Likewise, in relation to Mr Heriot, the respondents submitted that the above evidence was no more than speculation, and that such speculative evidence could not be accepted in the face of direct evidence in support of alternative explanations that are equally plausible: State of Victoria v McKenna (1999) 140 IR 256 at [42]-[43]; Luxton v Vines (1952) 85 CLR 352; Greater Three City Council v Craig Michael Peck [2002] NSWCA 331; Squillacioti v Roads & Traffic Authority of New South Wales & Anor [2002] NSWCA 133.

115 In relation to the contested issues of fact, the Tribunal must decide whether the evidence in respect of each of the 6 allegations establishes to the requisite standard that the applicant was subject to less favourable treatment “on the ground of [her] sex” within the meaning of s 24 of the AD Act in order to establish sex discrimination.

116 If we are satisfied that the applicant has been discriminated against on the ground of her sex, it will arise then to consider whether the first respondent is an industrial association (s 28), and/or whether membership of the Cattle Committee constitutes the provision by the first respondent of goods and services for the purposes of s 33 of the Act.

117 In relation to each of the 6 allegations the subject of the applicant’s letter of 9 July 2007, we conclude as follows.

The “coffee remark” allegation

118 Having regard to all of the evidence, we are satisfied that a remark in relation to coffee was made at one of the first two meetings of the Cattle Committee for the 2006-2007 year. Whilst the evidence is inconclusive in relation to the identity of the person who made the remark, we are satisfied to the requisite standard that such a remark was made.

119 Further, whilst there was some divergence in the evidence as to whether the remark was referrable to the applicant’s sex or her role as a newly elected member of the Cattle Committee, we consider on balance it more likely than not that the coffee remark was made on the ground of the applicant’s sex. In so finding, we have regard to the onus on the applicant to prove the allegation to the Briginshaw standard and the seriousness of the allegation. We also have regard to the unified approach in the authorities (see also s 4A of the AD Act) that the ground or reason relied upon to establish breach need not be the sole factor, but it must be a substantial and operative factor.

120 There was no evidence before us capable of supporting a conclusion that any such remark would be made to or about a newly elected male member of the Cattle Committee. As submitted by the applicant, that respondents’ concession that the remark was made in jest is irrelevant to the question of whether or not her sex was a causal factor.

121 Accordingly, on the balance of probabilities and having regard to the Briginshaw standard, we are satisfied that the coffee remark was made on the ground of the applicant’s sex.

The “menial task” allegation

122 In relation to the menial task allegation, we are mindful of the concession made by the applicant’s counsel during closing submissions that the evidence in respect of this claim was "not as strong" as that in support of other allegations.

123 We are satisfied that at or immediately after the August 2006 meeting of the Cattle Committee, the applicant was allocated the role of overseeing the Beef Reference Group. This was a meaningful role that involved the applicant seeking the views of constituents for whom she was provided contact email addresses by other Committee members. By about October 2006, she had not finalised this task, and Ms Lord provided assistance in completing the task and in explaining to her how to check her own emails.

124 Further, in about April 2007, Mr Barwell allocated the applicant a second role, that is, the role in respect of the LPA Program. Again, we consider that this was a meaningful role, the purpose of which was to enable the applicant to become the "LPA expert on the Committee". Again, there was evidence that the applicant experienced some difficulty in completing this role.

125 We consider it to be of significance that the applicant was allocated two roles in her first year as a member of the Cattle Committee. This was in the face of evidence that most new members are allocated only one and sometimes no role in their first year, and that most such roles take the form of a watching brief.

126 We have concluded that the evidence does not permit of a conclusion that the applicant was allocated only menial tasks, or that she was treated less favourably by the respondents than they would have treated a male person who had newly joined the Cattle Committee, or that any such allocation was on the ground of her sex (in the sense that her sex need not have been the sole factor, but it must have been be a substantial and operative factor).

127 We are not satisfied that the applicant has made out the menial task allegation.

The “inappropriate reaction” allegation

128 In relation to the inappropriate reaction allegation, the evidence turns on a contest between the applicant’s account and Mr Barwell’s account of Mr Barwell’s comments on the telephone in relation to her complaint about the behaviour of Mr Atherton at the meeting of the Cattle Council of Australia in November 2006 in Adelaide.

129 In her submission, the applicant contended that where there was an inconsistency between the evidence of the applicant and Mr Barwell, the credibility of Mr Barwell would be found wanting. Otherwise, the applicant referred to Mr Barwell as “one of the better witnesses” brought by the respondents.

130 The applicant’s evidence was that at the conclusion of the telephone call, she remarked to her partner that the telephone call from Mr Barwell “was the longest conversation [she] had had with the man”. However, the applicant’s partner was not called to give evidence. Mr Barwell denied being angry with the applicant on the telephone, being drunk, or asking for an apology in respect of the complaint.
131 Having had the opportunity to observe both the applicant and Mr Barwell give evidence, and notwithstanding our general acceptance of Mr Barwell as a witness of truth and the applicant’s failure to call her partner to give evidence, we consider it more likely than not that Mr Barwell reacted angrily (or at least irritably), and asked the applicant to apologise for telling Mr Bray about the incident with Mr Atherton.

132 Having regard to the totality of the material before us, we are unable to conclude that the applicant’s sex was the sole reason for Mr Barwell’s reaction. Nor are we able to conclude to the requisite standard that it was the dominant or even substantial reason for his reaction. However, for the purposes of the AD Act, where an act is done for 2 or more reasons, and one of the reasons consists of unlawful discrimination (whether or not it is the dominant or a substantial reason for doing the act), then the act is taken to be done for that reason: s 4A.

133 Having regard to the relevant statutory test, we draw the inference that in reacting angrily (or at least irritably) to the applicant, Mr Barwell treated the applicant less favourably than he would have treated a male person who had newly joined the Cattle Committee, and that the reaction was on the ground of the applicant’s sex.

134 Accordingly, we are satisfied that the applicant has made out the inappropriate reaction allegation.

The “marginalisation and avoidance” allegation

135 In relation to the allegation that Mr Barwell marginalized and avoided the applicant and deprived her of the opportunity to take up her concerns directly with him, the respondents submitted that the evidence could not sustain a finding in support of the marginalisation and avoidance allegation.

136 In relation to this allegation, the applicant relied in particular on the evidence in relation to the discussion at the August 2006 meeting concerning NLIS tags.

137 The evidence of Mr Barwell, Mr Chamen and Mr Munro was that Mr Barwell did not say the words alleged by the applicant in the manner alleged (that is, "you obviously put them in wrong"), and that Mr Barwell was neither dismissive nor belittling of the applicant’s contribution.

138 Whether or not Mr Barwell intended to dismiss or belittle the applicant’s comments, or whether they were perceived as such by other Committee members, we are satisfied that they were felt as such by the applicant. However, we are unable to draw the inference that Mr Barwell treated her "less favourably" than they would have treated a male person who had newly joined the Cattle Committee, or that his comments were made on the ground of the applicant’s sex (in the sense that her sex need not have been the sole factor, but it must have been be a substantial and operative factor).

139 In this regard, we attach significance to Mr Chamen’s evidence that it was a common industry issue for NILS tags to fall out, and to Mr Munro’s evidence that the issue of NLIS tagging was a major problem and the applicant’s question a common one. The issue of electronic tags was one which was “close to [Mr Munro’s] heart”.
140 Generally in relation to the “marginalisation and avoidance” allegation, we attach particular significance to the concession made by the applicant in cross-examination that she kept a “low-profile” and in effect avoided Mr Barwell from about November 2006. The applicant’s counsel accepted in final address that the concession took the shine off this allegation.

141 We are not satisfied to the requisite standard that the applicant has made out the allegation of marginalisation and avoidance by Mr Barwell.

The “exclusion from attendance” allegation
142 In relation to the “exclusion from attendance” allegation, Mr Barwell gave evidence that he had continued a policy commenced by Mr Keatinge to alternate the attendance by first and second alternate delegates at Cattle Council of Australia meetings. It was not disputed that the applicant attended the first Cattle Council meeting of the 2006-2007 year, nor that the second alternate delegate Mr Toohey attended the second meeting.

143 The applicant’s evidence was that she would have agreed to this system if she had known about it. Mr Barwell's evidence was that he informed her and the remainder of the Committee prior to the Adelaide meeting in November 2006.

144 It is unnecessary for the Tribunal to make a finding as to whether or not Mr Barwell did in fact tell the applicant about the system for attendance by alternate delegates at meetings. Whether he did or not, there is insufficient material before us capable of supporting the drawing of an inference that the applicant’s exclusion from attendance at the second meeting of the 2006-2007 year amounted to less favourable treatment or was on the ground of her sex (in the sense that her sex need not have been the sole factor, but it must have been be a substantial and operative factor).

145 We are not satisfied that the applicant has made out the exclusion from attendance allegation.

The “smear and whisper campaign” allegation

146 In relation to the “smear and whisper campaign” allegation, the applicant submitted that it ultimately did not matter who was the genesis of the expression “smear and whisper campaign” since there were “machinations” at work to get rid of the applicant. The applicant relied in particular on the evidence of Mr Clarke concerning talk of a generalised feeling of unhappiness on the Committee.

147 The applicant’s former mentor Mr Clarke denied using any language of a “smear and whisper campaign” during his telephone call with the applicant. We found Mr Clarke to be a witness of truth. He was plainly troubled at giving evidence against the applicant. He said, and we accept, that he "really felt for" the applicant and that he considered that she was genuine in her grievances.

148 Mr Clarke gave evidence that he had been trained in a pastoral role. As a result of that training, he proceeded on the basis of the correctness of everything that he was told by the applicant in relation to her concerns. Nor did he have any reason to disbelieve her.

149 We find, on the balance of probabilities, that in their two or so hour long conversation, Mr Clarke did advise the applicant of the comments which were being made about her by other members of the Cattle Committee, including by Mr Barwell and Mr Keatinge.

150 Notwithstanding his denial that he had used language of a “smear and whisper campaign”, Mr Clarke accepted that a number of members of the Cattle Committee had raised with him their “displeasure” in relation to applicant’s attitude and performance. This was because amongst other things she had told "much bigger cattle farmers how to run their business" and because of a prevailing view about the position of so-called "hobby farmers". Mr Clarke accepted in cross-examination that the gist of what he was told by Messrs Keatinge and Toohey in relation to the applicant “not fitting in” was that she had “the temerity to tell them how to run their business”. However, Mr Clarke did not accept that this was because she was a woman. Rather, his evidence was that they would have reacted similarly to being told the same “from anybody”.

151 We find it more likely than not that during the course of their telephone conversation, Mr Clarke said something to the applicant about “mates” and “the way NSWFA Committees work”.

152 We also find it more likely than not that at various times a number of “blunt, critical or insensitive comments” were made by members of the Cattle Committee about the applicant. Likewise, we find it more likely than not that the culture within the Cattle Committee during the 2006-2007 was such as to treat with some reserve members of who were not “mates” of existing members, and to be sceptical of, if not hostile towards newcomers to the cattle industry (of whom the majority necessarily were likely to be women). In this regard, the evidence was that the applicant was only the second female member of the Committee, and was not a “mate” of any existing member.

153 We also accept Mr Clarke’s evidence that Mr Keatinge told him he should intervene, saying words to the effect of "I am aware of problems within the Cattle Committee and it has been indicated to me that you [i.e. the applicant] were at the centre of these problems”.

154 It was put to each of Mr Barwell and Mr Keatinge in cross examination that the Cattle Committee was a "chauvinistic boys' club". Each rejected the suggestion. It is unnecessary for us to make a specific finding in that regard. However, the evidence before us was such as to lead us comfortably to conclude that:
(a) there were problems in the Cattle Committee in 2006/2007;
(b) the applicant was seen by some (including, in particular, Mr Keatinge) as one of the sources, if not the source of those problems;
(c) comments were made by numerous members of the Committee about the applicant “not fitting in” and their “displeasure” in relation to her attitude and performance;
(d) the applicant perceived the other members of the Committee (in particular, Mr Keatinge and Mr Barwell) to be unfriendly and unsympathetic towards her.
155 In the case of Mr Keatinge, such reserve (if not hostility) is not particularly surprising given the applicant’s suggestion to him at the August 2006 meeting that he was a misogynist. In this respect, we accept Mr Keatinge’s evidence that he did not understand the expression, and thought the applicant was speaking “double Dutch”.

156 Moreover, we find that in the manner in which she gave her evidence, the applicant was not inclined to back down lightly. Her demeanour as a witness was consistent with Mr Chamen’s evidence that he suggested to the applicant at the Cattle Council meeting in Adelaide some three times that they move on from Mr Atherton, but that the applicant insisted on “staying and arguing”.

157 Having regard to the totality of the material before us, we are unable to conclude that the applicant has established that a “smear and whisper campaign” was conducted against her. However, we are satisfied that numerous comments were made by members of the Cattle Committee about the applicant “not fitting in” and their “displeasure” in relation to her attitude and performance.

158 Section 73(3) of the Administrative Decisions Tribunal Act 1997 provides that the Tribunal is to act with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms. Section 81 provides that the Tribunal may, in any proceedings before it, make any amendments to the proceedings that it considers to be necessary in the interests of justice.

159 Having regard to these powers, we consider it appropriate to recast the so-called “smear and whisper campaign” allegation, and to consider whether comments made by members of the Cattle Committee about the applicant “not fitting in” and their “displeasure” in relation to her attitude and performance were causally related to her sex. The question which arises is whether the comments were made “on the ground” of the applicant's sex, or as the respondents contended because of her other perceived shortcomings, including her status as a hobby farmer, the perception that she inclined to tell much bigger and more experienced farmers how to run their business, and her non-completion of the initial tasks allocated to her as a member of the Cattle Committee.

160 In weighing this question, we need not be satisfied that the applicant’s sex was the sole reason for the comments. Nor do we need to be satisfied that her sex was the dominant or even substantial reason for his reaction: s 4A. Having regard to the totality of the material before us, we draw the inference that the comments which were made about the applicant “not fitting in” and “displeasure” in relation to her attitude and performance were made on the ground of her sex.

The proscribed areas of discrimination

161 In relation to the allegations, we have found that the coffee remark, Mr Barwell’s inappropriate reaction, and the comments about the applicant “not fitting in” and her attitude and performance were causally related to the applicant’s sex.

162 However, the Tribunal could make a finding of unlawful sex discrimination only if the impugned conduct falls within one of the proscribed areas of discrimination.

163 In Adams v University of Western Sydney [2001] NSWADT 19 the Tribunal said at [33]:

“[The process of ensuring the claim falls within a proscribed area of the Act] ... must be undertaken because not all discrimination on the basis of sex is unlawful; it is only discrimination on the ground of sex in the areas covered by the Act work, education, provision of goods and services, accommodation and membership of registered clubs - which is unlawful. Further, discrimination on the ground of sex is defined in the Act, consequently, it is only sex discrimination which falls within one of the areas covered by the Act (the substantive provisions) and which satisfies the statutory definition of discrimination on the ground of sex which is unlawful.”

164 In this regard, the applicant relies on the provisions in s 28 (industrial organisations) and s 33 (provision of goods and services).

Section 28: Industrial organisations

165 Initially, the applicant relied on s 28(2)(c) of the AD Act. The applicant contended that the relevant industrial organisation is the second respondent, and that she was a member of the second respondent. She alleged that the second respondent subjected her to “the detriment of embarrassment and humiliation by permitting some of its other members to treat her in the manner alleged on the ground of sex”. To the extent necessary, the applicant also relied upon the second respondent’s vicarious liability for its members (citing s 53 of the AD Act), the onus for rebuttal of which lies on the second respondent (citing Johanson v Blackledge [2001] FMC 6). The second respondent admitted that it is a registered industrial organisation under the Industrial Relations Act 1996 (NSW) (IR Act), however said that the alleged conduct occurred in the context of a committee of the first respondent, the NSW Farmers Association.

166 During the course of the hearing, it became apparent that the applicant did not press reliance on s 28(2)(c). Further, in final address, the applicant conceded that there was no evidence to support a finding of agency, and that for that reason the applicant’s reliance on s 28(2) together with s 53 might founder.

167 In our view the concession that the first respondent was not an industrial association within the meaning of s 28 was properly made.

168 Mr Inall’s evidence, which we accept, was that the first respondent is an entirely separate entity from the second respondent. In evidence before us were both the Rules of the second respondent and the Constitution of the first respondent as at 2006 (the 2006 Constitution).

169 Article 5 of the Rules of the second respondent provided as follows in relation to the objects of the NSW Farmers’ (Industrial) Association:

170 Article 29(iii) of the 2006 Constitution (Articles of Association) of the first respondent provided as follows in relation to the functions and powers of advisory committees:

“Advisory Committees of the Executive Council shall be advisory only and shall assist in the formulation of policy to be submitted as recommendations to the Board of Directors and/or the Executive Council and/or Annual Conference. Advisory Committees shall have no other powers except that, on policy issues of urgency, the wool, grain and meat committees will be given autonomy in policy determination subject to the President’s approval.”

171 Article 29(iv) of the 2006 Constitution (Articles of Association) provided as follows in relation to the names of advisory committees:

172 Accordingly, we do not consider that s 28 of the AD Act has any application to the matters about which the applicant complains. This is because the first respondent is not an organisation registered with the NSW Industrial Registrar under Part 5 of the IR Act, and therefore not an industrial organisation for the purposes of s 28(2)(c) of the AD Act. In particular, there was no evidence before us capable of suggesting that in her role as a member of the Cattle Committee of the first respondent, the applicant had any involvement in the furtherance and protection of the interests of its members in industrial matters or in the provision of industrial services for members.

173 Nor can s 53 of the AD Act apply to render the second respondent vicariously liable for acts done by its members. There was no evidence before us capable of supporting the conclusion that Mr Barwell, Mr Keatinge or any of the other members of the Cattle Committee about whose conduct the applicant complains was an agent or employee of the second respondent. In final address, this was effectively conceded by the applicant’s counsel.

Section 33: Provision of goods and services

174 The applicant further relies on s 33(1) of the AD Act, contending that the “service” being provided was “permitting [her] to participate in the business activities of the first respondent as a viable and worthwhile committee member”.

175 The applicant does not plead and made no submission to the effect that there was a relevant refusal to provide her with services within s 33(1)(a). Instead, she apparently relies on s 33(1)(b) which concerns discrimination on the ground of sex in the terms on which the first respondent provided her with those services.

176 In final address, the applicant relied on the decision of the High Court in IW v City of Perth (1997) 191 CLR 1 at 701-702, 710-712, 714-716, 725-728 and 748-753 as authority for the proposition that the expression “services” in s 33 would be given the widest possible connotation. In particular, the applicant submitted that the relevant service provided by the first respondent was participation as an elected member of one of its committees.

177 In IW v City of Perth (1997) 191 CLR 1 Brennan CJ and McHugh J at 12 noted that the term “services” has “a wide meaning”, and referred to the definition in the Macquarie Dictionary and to s 18 of the Interpretation Act 1984 (WA) which requires preference to be given to the construction of a written law that would promote the purpose or object underlying that law to a construction that would not promote that purpose or object. Their Honours continued:

“The injunction contained in s 18 of the Interpretation Act is reinforced by the rule of construction that beneficial and remedial legislation, like the Act, is to be given a liberal construction. It is to be given "a fair, large and liberal" interpretation rather than one which is "literal or technical". Nevertheless, the task remains one of statutory construction. Although a provision of the Act must be given a liberal and beneficial construction, a court or tribunal is not at liberty to give it a construction that is unreasonable or unnatural. But subject to that proviso, if the term "service", read in the context of the Act and its object, is capable of applying to an activity, a court or tribunal, exercising jurisdiction under the Act, should hold that that activity is a "service" for the purpose of the Act.”

178 In IW v City of Perth (1997) 191 CLR 1, Brennan CJ and McHugh J emphasised the importance of the proper characterisation of the services in question. At 16-17, their Honours said:

“In determining whether a person has refused to provide a service within the meaning of the Act, it is necessary to identify with precision what service has allegedly been refused to that person and what service or services the alleged discriminator provides.”

179 In the earlier case of Waters v Public Transport Corporation (1991) 173 CLR 349, McHugh J considered the issue of characterisation at length, stating at 404-405:

“Accordingly, the goods or services which must be identified are those goods or services which are relevant to the complainant or any person or persons whom the complainant represents. Before there can be a finding of discrimination by a person in relation to the provision of goods or services, therefore, the relevant goods or services must be identified with sufficient precision to relate them to the facts of the case and the issues which arise for determination. If a person is alleged to have refused to perform services, e.g., the services in question must be identified in sufficiently concrete terms to enable the Board to determine whether or not there has been a refusal to perform those services. What is a sufficiently precise identification of the service in one case may be too general in another. If the discrimination alleged was the refusal to allow impaired persons to travel on trams to St Kilda, it would be meaningless to identify the service provided as "the public transport system". If, however, the discrimination alleged was the refusal to allow impaired persons to travel on trams generally, "transportation of members of the public by trams" might identify the service with sufficient precision to enable the relevant issues to be resolved.”

180 The first respondent accepted that it provides various services within the meaning of s 33 to its members, including commercial deals and discounts from business partners to sponsors; education and training; free email based legal advice and access to a panel of country law firms at discounted rates; a tax advice emails service; the country law firm member benefit program; access to its website; and the opportunity to apply for the tertiary scholarship program for NSW students.

181 However, the respondents contended that none of these services relates to the subject matter of the complaint, and that membership of a committee of the first respondent is incapable of amounting to the provision of a service within the meaning of s 33 of the AD Act (irrespective of whether individual Executive Councillors or Committee members find it helpful or beneficial to be on a particular committee and notwithstanding the absence of any evidence that this is the case).

182 The respondents relied in particular on the decision of Sundberg J in Rainsford v Victoria (2007) 167 FCR 1 where his Honour said at [73]:

whether the act is helpful or beneficial to the relevant class of persons to which the person alleging discrimination belongs

services for the benefit of the State or the general public are not to the point. The question in this case is whether the respondents provide a service to the relevant class to which Mr Rainsford belongs, namely prisoners.

Rainsford v Victoria

183 In particular, the respondents contended that the only services provided by the first respondent under its Constitution are those provided to its members.

184 It was put to Mr Heriot that he derived a benefit from serving on the Cattle Committee in that his profile was thereby enhanced. Mr Heriot’s response was "not really...people just know I do something, they don't know what”. It was also put to Mr Heriot, and he agreed, that people asked him for advice.

185 In determining whether the services provided by the first respondent to its members under its Constitution include the opportunity to serve voluntarily on one of its advisory committees. In considering this question, it is appropriate to have regard to the following principles:

Director-General, Department of Community Services v MM

service

IW

service

Oxford English Dictionary

Macquarie

Dictionary

Rainsford

186 As at 20 July 2006, article 4 of 2006 Constitution (Memorandum of Association) of the first respondent provided that the objects for which the NSW Farmers Association is established included the following:

187 As noted above, article 29(iii) of the 2006 Constitution (Articles of Association) of the first respondent provided as follows in relation to the functions and powers of advisory committees:

“Advisory Committees of the Executive Council shall be advisory only and shall assist in the formulation of policy to be submitted as recommendations to the Board of Directors and/or the Executive Council and/or Annual Conference. Advisory Committees shall have no other powers except that, on policy issues of urgency, the wool, grain and meat committees will be given autonomy in policy determination subject to the President’s approval.”

188 We have no difficulty with the proposition that the services provided by the first respondent to its members include the formulation of policy, and representations externally in relation to matters of policy and the advancement externally of members' interests generally. Likewise, we accept that the existence and operation of advisory committees is one of the structures utilised by the first respondent to assist in the formulation of such policy.

189 However, having regard to the language of s 33(1), the question in this case is whether the services which the first respondent provides to its members include the opportunity to serve on one of its advisory committees (and thereby assist the organisation in the formulation of policy and the advancement of members' interests).

190 In our view, the fact that work performed by advisory committees is of benefit or advantage to the first respondent (and its members) does not result in the provision by the respondent of a relevant service to members elected to serve on the committee. Nor is either the fact that a particular member might find membership of the committee to be personally helpful or beneficial in some sense, or that another member (such as the applicant) might feel they have been prevented from participating “as a viable and worthwhile committee member” determinative of whether a relevant service is being provided within the meaning of ss 33(1).

191 In our view, it would strain the concept of the provision of services in s 33 of the AD Act to an unacceptable degree to include within it the opportunity provided by the first respondent to its members voluntarily to serve on an advisory committee and to assist in the formulation of policy to be submitted as recommendations to the Board of Directors and or/Executive Council.

192 Further, if we are wrong in concluding that the applicant has failed to establish that the first respondent provided her with any relevant service, we are unable to conclude that there was any relevant discrimination on the ground of sex in the terms on which the first respondent provided her with services, for the purpose of s 33(1)(b) of the AD Act. This is because it is settled that the manner in which a service is provided cannot amount to unlawful discrimination within s 33. In Turner v State Transit Authority [2004] NSWADT 89 the Tribunal said in relation to a relevantly similarly worded provision, s 38M of the AD Act:

193 In Turner the Tribunal held that remarks addressed to the applicant as she boarded the bus to the effect that she was a “cross dresser” did not relate to the terms, but rather to the manner in which the service was provided to her. The approach has been adopted in amongst other cases Sasterawan v SSS Electronics Pty Ltd [2006] NSWADT 140 and Graham v State of NSW (Director General, NSW Department of Health, in respect of Ambulance Service Division) [2008] NSWADT 270.

194 Neither the Points of Claim nor the submissions made on behalf of the applicant identified any allegedly discriminatory terms on which she was provided "services". It follows that the applicant’s complaints concerning remarks made to and about her by members of the Committee concern the manner in and not the terms on which services were provided to her (that is if, contrary to our conclusions above, membership of a committee constitutes “services” for the purposes of s 33).

195 For these reasons, this part of the complaint must also fail.

Conclusions

196 We have found that of the matters of which the applicant complains, three occurred as alleged and were, on balance, causally related to her sex, namely the coffee remark allegation, the inappropriate reaction allegation and the comments about her “not fitting in” and her attitude and performance.

197 However, in order for those matters to constitute unlawful sex discrimination contrary to the AD Act, they must fall within one of the proscribed areas of discrimination. For the reasons given, we are not satisfied that either s 33 or s 28 is available in the circumstances of this case. In relation to s 33 in particular, the evidence in relation to the first respondent’s advisory committees does not support a finding that the first respondent provided any relevant service to the applicant, or that there was a refusal to provide her with a service, or that there was discrimination in the terms on which she was provided any such services. Further, as the analysis in Turner (with which we agree as a matter of statutory construction) demonstrates, the manner in which services are provided is not caught by the Act.

198 Accordingly, we have concluded that the complaint be dismissed.

199 It does not follow, however, that we accept the respondents’ submission that in all the circumstances the impugned conduct amounted to beneficial treatment of the applicant. Rather, we accept as most likely Mr Heriot’s assessment that the applicant had a “rough ride” “probably because she was a woman and wanted to compete with the rest of them”. There was evidence from numerous of the respondents’ witnesses that the applicant was a “hobby farmer”, that the breed of her cattle was not widely known, and that she was considered not to have a large enough stake in the cattle industry. As her mentor Mr Clarke opined, there was a clash of personalities which had to do with inter alia the applicant’s “attitude”. We also accept that comments made to and about the applicant by a number of members of the Cattle Committee (especially Mr Keatinge and Mr Barwell) can be legitimately described as “blunt, critical or insensitive”.

200 For the reasons given, however, we are not satisfied that the applicant has established to the requisite standard that the conduct of which she complains constitutes unlawful discrimination within one of the areas proscribed by the AD Act.

ORDERS

The complaint is dismissed.

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Citations

Howe v NSW Farmers' Association [2010] NSWADT 101

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CITATION:	Howe v NSW Farmers’ Association [2010] NSWADT 101
DIVISION:	Equal Opportunity Division
PARTIES:	APPLICANT Deborah Howe RESPONDENT NSW Farmers’ Association and NSW Farmers’ (Industrial) Association
FILE NUMBER:	081086
HEARING DATES:	27 and 28 April 2009
SUBMISSIONS CLOSED:	9 May 2009
DATE OF DECISION:	23 April 2010
BEFORE:	Pritchard S - Judicial Member; O'Sullivan M - Non-Judicial Member; Lowe A - Non-Judicial Member
LEGISLATION CITED:	Industrial Relations Act 1996 (NSW) Anti-Discrimination Act 1977 (NSW) Administrative Decisions Tribunal Act 1997 (NSW) Disability Discrimination Act 1992 (Cth)
CASES CITED:	Adams v University of Western Sydney [2001] NSWADT 19 Briginshaw v Briginshaw (1938) 60 CLR 336 Carr v Baker (1936) 36 SR (NSW) 301 Commissioner of Corrective Services v Aldridge [2000] NSWADTAP 5 Commissioner of Corrective Services v Aldridge [2000] NSWADTAP 5 Commonwealth v HREOC at 493 Commonwealth v Human Rights and Equal Opportunity Commission (1997) 147 ALR 469 Director-General, Department of Community Services v MM [2003] NSWSC 1241 Employment Advocate v Williamson (2001) 111 FCR 20 Ferrus v Qantas Airways Ltd [2006] FCA 812 Gama v Qantas Airways Limited (No 2) [2006] FMCA 1767 Graham v State of NSW (Director General, NSW Department of Health, in respect of Ambulance Service Division) [2008] NSWADT 270 Greater Taree City Council v Craig Michael Peck [2002] NSWCA 331 Greater Three City Council v Craig Michael Peck [2002] NSWCA 331 Gurnett v Macquarie Stevedoring Co Pty Ltd (1955) 72 WN (NSW) 261 Haines v Leves (1987) 8 NSWLR 442 IW v City of Perth (1997) 191 CLR 1 Jones v Dunkel (1959) 101 CLR 298 Luxton v Vines (1952) 85 CLR 352 Luxton v Vines (1952) 85 CLR 352 Nominal Defendants v Owens (1978-79) 22 ALR 128 Penhall-Jones v State of New South Wales [2007] FCA 925 Purvis v State of New South Wales (2003) 217 CLR 92 Qantas Airways Limited v Gama (2001) 167 FCR 537 Rainsford v Victoria (2007) 167 FCR 1 Rainsford v Victoria (2008) 167 FCR 26 Sasterawan v SSS Electronics Pty Ltd [2006] NSWADT 140 Sharma v Legal Aid (Qld) (2002) 115 IR 91 Sharma v Legal Aid (Qld) (2002) 115 IR 91 Squillacioti v Roads & Traffic Authority of New South Wales & Anor [2002] NSWCA 133 Squillacioti v Roads & Traffic Authority of New South Wales & Anor [2002] NSWCA 133 State of Victoria v McKenna (1999) 140 IR 256 State of Victoria v McKenna (1999) 140 IR 256 at [42]-[43] Turner v State Transit Authority [2004] NSWADT 89 Waters v Public Transport Corporation (1991) 173 CLR 349
REPRESENTATION:	APPLICANT Mr Austin of counsel RESPONDENT P Thew, barrister
ORDERS:	Complaint dismissed