James v WorkPower Inc

Case [2019] FCA 1239

FEDERAL COURT OF AUSTRALIA

James v WorkPower Inc [2019] FCA 1239

File number: VID 417 of 2018
Judge: MORTIMER J
Date of judgment: 8 August 2019
Catchwords: PRACTICE AND PROCEDURE – application by litigation representative for approval of settlement – consideration of relevant factors for approval of settlement – settlement approved
Legislation:

Australian Human Rights Commission Act 1986 (Cth) ss 46P, 46PO(1)

Disability Discrimination Act 1992 (Cth) ss 5, 6, 15

Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth)

Federal Court of Australia Act 1976 (Cth) s 37AG

Federal Court Rules 2011 (Cth) rr 9.70, 9.71
Cases cited:

Butler v Djerriwarrh Employment & Education Services Inc [2015] FCA 296

Elliott v State of Victoria [2018] FCA 1029

James v WorkPower Inc [2018] FCA 2083

Kemp v State of Victoria (Department of Education and Training) [2018] FCA 1327

Scandolera v State of Victoria [2015] FCA 1451; 331 ALR 525

Tsirigotis v The Ivanhoe Grammar School [2018] FCA 2038
Date of hearing: Determined on the papers
Date of last submissions: 24 July 2019
Registry: Victoria
Division: General Division
National Practice Area: Administrative and Constitutional Law and Human Rights
Category: Catchwords
Number of paragraphs: 18
Solicitor for the Applicant: AED Legal Centre
Solicitor for the Respondent: Ashurst Australia

ORDERS

VID 417 of 2018
BETWEEN:

DAVID JAMES (BY HIS LITIGATION REPRESENTATIVE HELEN JAMES)

Applicant
AND:

WORKPOWER INC

Respondent

JUDGE:

MORTIMER J

DATE OF ORDER:

8 AUGUST 2019

THE COURT ORDERS THAT:

1.The settlement of this proceeding, as set out in the Agreement marked as Annexure “KW2” to the affidavit of Kairstien Wilson, sworn 16 July 2019, be approved.

2.For the purposes of s 37AG(2) of the Federal Court of Australia Act1976 (Cth), to prevent any prejudice to the proper administration of justice, Annexures “KW1” and “KW2” to the affidavit of Kairstien Wilson sworn 16 July 2019 must be treated as confidential to the parties in this proceeding and until further order:

(a)must be marked as confidential to the parties on the Court’s Electronic Court File; and

(b)must not be available for public inspection, disclosed in open court or disclosed in the open part of any court transcript.

3.The application be otherwise dismissed.

4.The respondent pay the applicant’s legal costs, fixed in the sum of $10,000.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


REASONS FOR JUDGMENT

MORTIMER J:

  1. This is an application for approval of a settlement reached between the parties to the proceeding. The applicant, Mr David James, applies for this approval through his litigation guardian, who is his mother.

  2. This settlement relates to claims of indirect and direct disability discrimination contrary to ss 5, 6 and 15 of the Disability Discrimination Act 1992 (Cth) and a contravention under the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth).

  3. For the reasons set out below, I am satisfied the settlement should be approved.

    Background

  4. Mr James is legally blind and autistic. He has been diagnosed as having what is…

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AGLC
James v WorkPower Inc [2019] FCA 1239
Case
[2019] FCA 1239
Decision Date

CaseChat Overview and Summary

James v WorkPower Inc was an application brought in the Federal Circuit Court by James, a legally blind and autistic man, who alleged discrimination in his wages by his employer, WorkPower Inc. The case revolved around the settlement of these claims, which included allegations of unfair wage assessments, lack of transparency, and discriminatory assessments of skills. After the proceedings began, the parties reached a settlement which was subsequently brought before the Court for approval. The key issue for the Court was whether the settlement was fair, reasonable, and in the best interests of James, considering his vulnerabilities due to his disabilities.

The Court considered several factors in determining whether to approve the settlement. These included the merits of the case, the terms of the settlement agreement, the interests of James, and the efficiency of resolving disputes through settlement. The Court noted that the settlement provided James with a financial compensation that recognised his grievances and provided for his future needs. Additionally, the settlement included provisions that aimed to prevent similar issues in the future, such as ensuring transparent and fair wage assessments for employees with disabilities. The Court was satisfied that the settlement was fair and just, taking into account James' vulnerabilities and the strength of his case.

After thorough consideration, the Court approved the settlement. It highlighted that the settlement not only provided James with appropriate compensation but also aimed to prevent future discrimination. The Court ordered that certain documents related to the settlement be treated as confidential to protect the privacy of the parties involved. Additionally, the Court directed the respondent to pay the applicant’s legal costs, fixed at $10,000, reflecting the complexity and significance of the issues raised in the case. This decision underscored the importance of addressing and resolving claims of discrimination, particularly in cases involving vulnerable individuals.

Orders

Orders of the court

1. The settlement of this proceeding, as set out in the Agreement marked as Annexure “KW2” to the affidavit of Kairstien Wilson, sworn 16 July 2019, be approved.

2. For the purposes of s 37AG(2) of the Federal Court of Australia Act 1976 (Cth), to prevent any prejudice to the proper administration of justice, Annexures “KW1” and “KW2” to the affidavit of Kairstien Wilson sworn 16 July 2019 must be treated as confidential to the parties in this proceeding and until further order:

(a) must be marked as confidential to the parties on the Court’s Electronic Court File; and

(b) must not be available for public inspection, disclosed in open court or disclosed in the open part of any court transcript.

3. The application be otherwise dismissed.

4. The respondent pay the applicant’s legal costs, fixed in the sum of $10,000.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

For the reasons set out below, I am satisfied the settlement should be approved.Background Mr James is legally blind and autistic. He has been diagnosed as having what is described as high functioning autism. He has worked for the respondent in the role of factory hand/assembly worker since March 2015. In June 2017 a complaint was made on Mr James’ behalf to the Australian Human Rights Commission under s 46P of the Australian Human Rights Commission Act 1986 (Cth). The complaint was terminated by the Commission on 26 February 2018, and the applicant commenced proceedings in this Court on 17 April 2018. On 21 December 2018 I granted leave to Mr James to make an application to this Court pursuant to s 46PO(1) of the AHRC Act: see James v WorkPower Inc [2018] FCA 2083. The conduct alleged to constitute unlawful discrimination fell into several categories. There were allegations that:(a)the wage assessment was undertaken by an employee of the respondent rather than an independent person, took over a year to complete and lacked transparency;(b)Mr James was made to sign the assessment even though he is blind and his brother has a power of attorney;(c)Mr James’ wages did not reflect his move to a Level B position;(d)the Greenacres tool failed to provide a reasonable measure of productivity for Mr James, who was entitled to be paid by reference to his productivity; (e)under Greenacres, Mr James’ pay rate was restricted to a range of 15% to 20% of Grade 2 of the award rate before any assessment of his work performance occurred;(f)as an element of Greenacres, Mr James was subjected to an assessment of “task skills” that workers with or without disability are not subject to in determining award wages for this type and level of work in the regular labour market (open employment);(g)Mr James was also subject to an assessment of “underpinning work skills” (independent work practice, working consistently, flexibility, quality control, workplace health and safety, and teamwork). Workers with or without disability are not subject to an assessment of these matters in determining award wages for this type and level of work in the regular labour market. While these skills may be important, they are not a measure of “work value” and should not be included in a wages assessment for a worker with a disability when they are not included in the wages assessment for workers without a disability;(h)workers such as Mr James were “pre-classified” under the Greenacres tool with pre-determined wages less than 55% of the Grade 2 rates, which means that under the Greenacres tool, no matter what their productivity, they were unable to progress to higher wage levels; an(i)an alternative assessment tool – the Supported Wages System– would have delivered a fairer outcome to a person with Mr James’ disabilities working in the kind of job he was working in. The complaint alleged that if Mr James was assessed on “straight productivity, such [as] under SWS”, he would have had the potential to earn a higher wage as the Supported Wages System has “the based wage rates from 10% through to 90% of the award”.The present application

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Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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