FEDERAL COURT OF AUSTRALIA
James v WorkPower Inc [2018] FCA 2083
File number: VID 417 of 2018 Judge: MORTIMER J Date of judgment: 21 December 2018 Catchwords: HUMAN RIGHTS – application for leave to commence proceeding otherwise barred by operation of s 46PO(3A) of the Australian Human Rights Commission Act 1986 (Cth) – where complaint to Australian Human Rights Commission terminated on the basis it was misconceived or lacking substance – consideration of principles relevant to Court’s exercise of discretion to grant leave – whether application arguable and not fanciful – leave granted Legislation: Australian Human Rights Commission Act 1986 (Cth) ss 46P, 46P(1A), 46PH(1), 46PH(1B), 46PH(1C), 46PO(1), 46PO(3), 46PO(3A)
Evidence Act 1995 (Cth) s 76
Disability Discrimination Act 1992 (Cth) s 47(1)(c)
Federal Court of Australia Act 1976 (Cth) ss 23, 24(1A), 37AR, 37N, 37M
Federal Court Rules 2011 (Cth) rr 1.32, 10.43(2), 24.01Cases cited: DJS16 v Minister for Immigration and Border Protection [2018] FCA 2037
Eastman v Shamrock Consultancy Pty Ltd [2018] FCCA 3436
Kaurv Minister for Immigration and Border Protection [2015] FCA 584; 233 FCR 507
Nojin v Commonwealth of Australia [2012] FCAFC 192; 208 FCR 1
Date of hearing: Determined on the papers Date of last submissions: 4 December 2018 Registry: Victoria Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 56 Counsel for the Applicant: F Knowles Solicitor for the Applicant: AED Legal Centre Counsel for the Respondent: R Nelson 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:
21 DECEMBER 2018
THE COURT ORDERS THAT:
1.Leave be granted to the applicant to make application to this Court pursuant to s 46PO(1) of the Australian Human Rights Commission Act 1986 (Cth).
2.The originating application filed on 13 April 2018 be treated as filed with leave of the Court pursuant to s 46PO(3A) of the Australian Human Rights Commission Act 1986 (Cth).
3.The applicant is to file and serve an outline of case pursuant to 6.5-6.7 of the Administrative and Constitutional Law and Human Rights National Practice Note (ACLHR-1) on or before 14 February 2019.
4.The respondent is to file and serve a response to the applicant’s outline of case on or before 21 March 2019.
5.The matter is to be listed for case management hearing at 10.15 am on 25 March 2019.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
MORTIMER J:
The applicant, by his litigation representative, who is his mother, seeks leave to commence this proceeding, pursuant to the requirement in s 46PO(3A)(a) of the Australian Human Rights Commission Act 1986 (Cth).
The application is supported by three affidavits of Kairstien Wilson dated 22 June 2018, 24 August 2018 and 4 December 2018.
The respondent, Workpower Inc,…
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- AGLC
- James v WorkPower Inc [2018] FCA 2083
- Case
- [2018] FCA 2083
- Decision Date
CaseChat Overview and Summary
James v WorkPower Inc is a case involving the issue of whether the applicant, Mr James, was granted leave to commence proceedings in the Federal Court of Australia alleging unlawful discrimination by the respondent, WorkPower Inc. Mr James, who is legally blind and autistic, works for WorkPower Inc as a factory hand/assembly worker and filed a complaint with the Australian Human Rights Commission regarding the calculation of his wages. He alleged that the Greenacres Competency Based Wage System Assessment Tool used by the respondent to calculate his wages involved unlawful discrimination. The case revolves around the principles relevant to the Court’s exercise of discretion to grant leave, whether the application is arguable and not fanciful.
The court held that leave should be granted to the applicant to make an application to the Court alleging unlawful discrimination by the respondent. The Court noted that the originating application was accepted for filing without attention being paid to the need for leave to commence the proceeding. The Court found that the text of s 46PO(3A) suggests that leave should be considered at the stage an applicant seeks to file their originating process in the Court, and not at a later stage. The Court concluded that once leave is granted, a proceeding in the Court should proceed in the usual way.
The court granted leave to the applicant to make an application to this Court alleging unlawful discrimination by the respondent. The originating application was treated as filed with leave on 13 April 2018. The Court also made an order for the applicant to file and serve an outline of case on or before 14 February 2019, and for the respondent to file and serve a response to the applicant’s outline of case on or before 21 March 2019. The matter was listed for a case management hearing at 10.15 am on 25 March 2019.
The court held that leave should be granted to the applicant to make an application to the Court alleging unlawful discrimination by the respondent. The Court noted that the originating application was accepted for filing without attention being paid to the need for leave to commence the proceeding. The Court found that the text of s 46PO(3A) suggests that leave should be considered at the stage an applicant seeks to file their originating process in the Court, and not at a later stage. The Court concluded that once leave is granted, a proceeding in the Court should proceed in the usual way.
The court granted leave to the applicant to make an application to this Court alleging unlawful discrimination by the respondent. The originating application was treated as filed with leave on 13 April 2018. The Court also made an order for the applicant to file and serve an outline of case on or before 14 February 2019, and for the respondent to file and serve a response to the applicant’s outline of case on or before 21 March 2019. The matter was listed for a case management hearing at 10.15 am on 25 March 2019.
Orders
Orders of the court
1. Leave be granted to the applicant to make application to this Court pursuant to s 46PO(1) of the Australian Human Rights Commission Act 1986 (Cth).
2. The originating application filed on 13 April 2018 be treated as filed with leave of the Court pursuant to s 46PO(3A) of the Australian Human Rights Commission Act 1986 (Cth).
3. The applicant is to file and serve an outline of case pursuant to 6.5-6.7 of the Administrative and Constitutional Law and Human Rights National Practice Note (ACLHR-1) on or before 14 February 2019.
4. The respondent is to file and serve a response to the applicant’s outline of case on or before 21 March 2019.
5. The matter is to be listed for case management hearing at 10.15 am on 25 March 2019.
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, the leave application will be granted.Relevant background Mr James is legally blind and is autistic. He has been diagnosed as having what is described as high functioning autism. He works for the respondent in the role of a factory hand/assembly worker. As the Australian Human Rights Commission complaint filed on his behalf frankly states: “[h]e is employed to pack boxes”. His complaint to the Commission related to the amount he received by way of wages for his employment with the respondent. Mr James challenged the way his wages are calculated, in particular (but not only) the respondent’s use of a wage assessment tool called the Greenacres Competency Based Wage System Assessment Tool. I shall call this the “Greenacres tool” in these reasons. As Mr James’ complaint to the Commission makes clear, Mr James’ wages were formerly assessed using the Business Services Wage Assessment Tool (BSWAT), which ceased to be used in December 2012. The use of BSWAT had been found by a Full Court of this Court to involve unlawful discrimination against some workers with disabilities: see Nojin v Commonwealth of Australia [2012] FCAFC 192; 208 FCR 1 (Buchanan and Katzmann JJ, Flick J dissenting). Mr James contended that the Greenacres tool replaced BSWAT in the calculation of his wages by the respondent. Mr James alleged in his complaint to the Commission that the use of the Greenacres tool to calculate his wages involved unlawful discrimination. That was not the only allegation of unlawful discrimination in his complaint. His complaint covered, in summary, the following categories of allegations of unlawful discrimination:(1)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;(2)Mr James was made to sign the assessment even though he is blind and his brother has a power of attorney;(3)Mr James’ wages do not reflect his move to a Level B position;(4)The Greenacres tool fails to provide a reasonable measure of productivity for Mr James, who is entitled to be paid by reference to his productivity; (5)Under Greenacres, Mr James’ pay rate is restricted to a range of 15% to 20% of Grade 2 of the award rate before any assessment of his work performance occurs;(6)As an element of Greenacres, Mr James is 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);(7)Mr James is 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.(8)Workers such as Mr James are “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 are unable to progress to higher wage levels;(9)An alternative assessment tool – the Supported Wages System– would deliver a fairer outcome to a person with Mr James’ disabilities working in the kind of job he is working in. The complaint alleged that if Mr James was assessed on “straight productivity, such [as] under SWS”, he would have 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”.
Evidence
Evidence Before The Court
Finally, insofar as Mr James will need to frame his allegations in this Court in writing and to a sufficient level of particularity, once that is done, the respondent will be able to make a submission, if it is minded to do so, that the allegations as formulated exceed the substance of the complaint before the Commission and this Court has no jurisdiction by reason of s 46PO(3). I consider the respondent’s current submission to that effect to be premature. As the applicant submits, the factual sub-stratum is the same, and as I have noted, the allegations made on behalf of Mr James in the complaint to the Commission were very broad.Ruling in the respondent’s evidence objection I do not propose to rule the second affidavit of Ms Wilson inadmissible on the application for leave. In my opinion, evidence about Mr James’ disabilities, and how they have been identified, is relevant to the determination of the leave application because the nature and extent of a person’s disabilities, and how they are related to the complaints of unlawful discrimination is a proper matter for the Court to consider. I am satisfied Ms Wilson, given her training as a registered nurse and her experience working as a solicitor with people with disabilities, is qualified to express the opinions she does, at least for the purposes of the Court’s consideration of the leave application. I do not consider that by introducing s 46PO(3A), Parliament intended this Court to conduct a detailed investigation into the provenance and quality of any opinion evidence in order to determine whether to grant or refuse leave.CONCLUSION Leave will be granted to the applicant to make an application to this Court alleging unlawful discrimination by the respondent. The originating application was accepted for filing, and allocated to my docket, without attention being paid to the need for leave to commence the proceeding. The text of s 46PO(3A) suggests that, in a similar vein to the provisions dealing with vexatious litigants, Parliament intends that leave be considered at the stage an applicant seeks to file her or his originating process in the Court, and not at some later stage. The Court may need to clarify its processes to reflect this. In this case, and in reliance on s 23 of the Federal Court Act and on r 1.32 of the Federal Court Rules, an order will be made to the effect that the proceeding is to be treated as having been commenced with leave on 13 April 2018, the date on which the originating application was filed. This will regularise the proceeding and is consistent with the intended effect of s 46PO(3A): namely that once leave is granted, a proceeding in this Court (or the Federal Circuit Court) should proceed in the usual way. To date, this proceeding has been marked by a number of omissions, and some lack of responsiveness, by the legal representatives of Mr James. The failure to appreciate leave was required, and to seek it, is one of these, but the omission of the appointment of a litigation guardian was another. From this point onwards the Court will expect Mr James’ legal representatives to observe their obligations in s 37N of the Federal Court Act, to prepare Mr James’ case in a timely fashion, and to conduct this proceeding in accordance with the overarching objectives in s 37M of the Federal Court Act.
Decision
Reasons for decision
I do not propose to rule the second affidavit of Ms Wilson inadmissible on the application for leave. In my opinion, evidence about Mr James’ disabilities, and how they have been identified, is relevant to the determination of the leave application because the nature and extent of a person’s disabilities, and how they are related to the complaints of unlawful discrimination is a proper matter for the Court to consider. I am satisfied Ms Wilson, given her training as a registered nurse and her experience working as a solicitor with people with disabilities, is qualified to express the opinions she does, at least for the purposes of the Court’s consideration of the leave application. I do not consider that by introducing s 46PO(3A), Parliament intended this Court to conduct a detailed investigation into the provenance and quality of any opinion evidence in order to determine whether to grant or refuse leave.CONCLUSION Leave will be granted to the applicant to make an application to this Court alleging unlawful discrimination by the respondent. The originating application was accepted for filing, and allocated to my docket, without attention being paid to the need for leave to commence the proceeding. The text of s 46PO(3A) suggests that, in a similar vein to the provisions dealing with vexatious litigants, Parliament intends that leave be considered at the stage an applicant seeks to file her or his originating process in the Court, and not at some later stage. The Court may need to clarify its processes to reflect this. In this case, and in reliance on s 23 of the Federal Court Act and on r 1.32 of the Federal Court Rules, an order will be made to the effect that the proceeding is to be treated as having been commenced with leave on 13 April 2018, the date on which the originating application was filed. This will regularise the proceeding and is consistent with the intended effect of s 46PO(3A): namely that once leave is granted, a proceeding in this Court (or the Federal Circuit Court) should proceed in the usual way. To date, this proceeding has been marked by a number of omissions, and some lack of responsiveness, by the legal representatives of Mr James. The failure to appreciate leave was required, and to seek it, is one of these, but the omission of the appointment of a litigation guardian was another. From this point onwards the Court will expect Mr James’ legal representatives to observe their obligations in s 37N of the Federal Court Act, to prepare Mr James’ case in a timely fashion, and to conduct this proceeding in accordance with the overarching objectives in s 37M of the Federal Court Act. I consider it is appropriate, at least initially, for this matter to proceed by way of outline of case and response. There will be directions accordingly. If one or both parties consider the additional time and expense of formal pleadings is necessary, that is a matter which can be raised during case management and the Court will consider the submissions made.
Ratio Decidendi
Legal Principle Established
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