Lattouf v Australian Broadcasting Corporation (No 2)
[2025] FCA 669
•25 June 2025
FEDERAL COURT OF AUSTRALIA
Lattouf v Australian Broadcasting Corporation (No 2) [2025] FCA 669
File number: NSD 189 of 2024 Judgment of: RANGIAH J Date of judgment: 25 June 2025 Catchwords: INDUSTRIAL LAW – unlawful termination – whether the respondent contravened s 772(1) of the Fair Work Act 2009 (Cth) (FWA) by terminating the applicant’s employment for reasons including political opinion, race or national extraction – whether s 772(1) should be construed similarly to Part 3-1 of the FWA – what constitutes “political opinion” – whether s 772(1)(f) protects the expression, as well as the holding, of political opinion – whether the findings of the Fair Work Commission give rise to an issue estoppel – whether there was a termination of the employment contract or of the employment relationship – whether termination of the employment relationship constitutes termination under s 772(1) – where the employer had an obligation to provide work – where a substantial and operative reason of the relevant decision maker was the applicant’s holding of a political opinion – compensation awarded for non-economic loss under s 545 of the FWA
INDUSTRIAL LAW – whether disciplinary action taken by the respondent breached the Enterprise Agreement – where the respondent made an allegation of misconduct – where the applicant was not notified or given an opportunity to respond – denial of procedural fairness required by the Enterprise Agreement – applicant dismissed when no grounds for dismissal - contravention of s 50 of the FWA
Legislation: Acts Interpretation Act 1901 (Cth) s 15AA
Australian Broadcasting Corporation Act 1983 (Cth) ss 5(1), 6(1), 7, 8, 8(1)(c), 9, 10, 12 and 32
Evidence Act 1995 (Cth) ss 140(1) and 140(2)
Fair Work Act 2009 (Cth) ss 3, 50, 119, 119(1), 195(1), 340, 340(1)(a)(i), 342, 346, 346(a), 351, 351(1), 351(2), 352, 360, 361, 386, 386(1), 386(2), 386(3), 545, 595(2), 595(3), 771,772, 772(1), 772(1)(f), 772(2), 772(2)(a), 772(2)(b), 773, 776, 776(1), 776(3), 776(3)(a), 778, 783, 783(1), Pt 3-1 and Pt 6-4, Div 2
Industrial Relations Act 1988 (Cth) ss 170CA, 170CB and 170EA
Workplace Relations Act1996 (Cth) s 659
Federal Court Rules 2011 (Cth) Rule 16.02(1)
Explanatory Memorandum, Fair Work Bill 2008 (Cth)
International Covenant on Civil and Political Rights Arts 2, 19 and 26
Convention (No. 111) concerning Discrimination in Respect of Employment and Occupation Art 1(1)
Convention (No. 158) Concerning Termination of Employment at the Initiative of the Employer
Cases cited: Aitken v Construction, Mining, Energy, Timberyards, Sawmills and Woodworkers Union of Australia — Western Australian Branch (1995) 63 IR 1
Alam v National Australia Bank Limited (2021) 288 FCR 301
Australian Building and Construction Commissioner v Hall (2018) 261 FCR 347
Australian Licensed Aircraft Engineers Association v International Aviation Service Assistance Pty Ltd (2011) 193 FCR 526
Australian Red Cross Society v Queensland Nurses’ Union of Employees (2019) 273 FCR 332
Australian Rugby League Ltd v Cross (1997) 39 IPR 111
Australian Securities and Investments Commission v BHF Solutions Pty Ltd (2022) 293 FCR 330
Automatic Fire Sprinklers Pty Ltd v Watson (1946) 72 CLR 435
Banque Commerciale SA (En Liqn) v Akhil Holdings Ltd (1990) 169 CLR 279
Barclay v Board of Bendigo Regional Institute of Technical and Further Education (2011) 191 FCR 212
Blair v Curran (1939) 62 CLR 464
Board of Bendigo Regional Institute of Technical and Further Education v Barclay [No 1] (2012) 248 CLR 500
Briginshaw v Briginshaw (1938) 60 CLR 336
Broadlex Services Pty Ltd v United Workers’ Union [2020] FCA 867; 296 IR 425
Burazin v Blacktown City Guardian Pty Ltd (1996) 142 ALR 144
Byrne v Australian Airlines Ltd (1995) 185 CLR 410
Canada(Attorney-General) v Ward [1993] 2 SCR 689
Carr v The State of Western Australia (2007) 232 CLR 138
Celand v Skycity Adelaide Pty Ltd (2017) 256 FCR 306
Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1
CIC Insurance Limited v Bankstown Football Club Limited (1997) 187 CLR 384
City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union [2006] FCA 813; 153 IR 426
Collier v Sunday Referee Publishing CoLtd [1940] 2 KB 647
Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Competition and Consumer Commission (2007) 162 FCR 466
Construction, Forestry, Mining and Energy Union v Anglo Coal (Dawson Services) Pty Ltd (2015) 238 FCR 273
Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (2014) 253 CLR 243
Construction, Forestry, Mining and Energy Union v Clermont CoalLimited [2015] FCA 1014; 253 IR 166
CPCF v Minister for Immigration and Border Protection (2015) 255 CLR 514
Curro v Beyond Productions Pty Ltd (1993) 30 NSWLR 337
Dare v Pulham (1982) 148 CLR 658
Duncombe v Porter (1953) 90 CLR 295
Ex parte Amalgamated Engineering Union (Australian Section); Re Jackson (1937) 38 SR (NSW) 13
Fair Work Ombudsman v Foot & Thai Massage Pty Ltd (in liquidation) (No 4) [2021] FCA 1242
Firebird Global Master Fund II Ltd v Republic of Nauru (2015) 258 CLR 31
General Motors-Holden Pty Ltd v Bowling (1976) 12 ALR 605
Geys v Societe Generale, London Branch [2013] 1 AC 523
Goodman v Pocock (1850) 15 QB 576
Gould, Birbeck and Bacon v Mount Oxide Mines Ltd (In Liq) (1916) 22 CLR 490
In re Rubel Bronze and Metal Co Ltd v Vos [1918] 1 KB 321
Jacobs v Adelaide Theosophical Society Inc [2022] FWCFB 79; 316 IR 108
James Cook University v Ridd (2020) 278 FCR 566
Kazal v Thunder Studios Inc (California) [2023] FCAFC 174; 416 ALR 24
Kingdom of Spain v Infrastructure Services Luxembourg sàrl (2023) 275 CLR 292
Koompahtoo Local Aboriginal Land Council v Sanpine Pty Ltd (2007) 233 CLR 115
Kowalski v Trustee, Mitsubishi Motors Australia Ltd Staff Superannuation Pty Limited [2003] FCAFC 18
Lattouf v Australian Broadcasting Corporation [2024] FWC 1441; 332 IR 127
Lattouf v Australian Broadcasting Corporation [2024] FWC 570
Laurinda Pty Ltd v Capalaba Park Shopping Centre Pty Ltd (1989) 166 CLR 623
Lehrmann v Network Ten Pty Limited (Trial Judgment) [2024] FCA 369
Mahony v White [2016] FCAFC 160; 262 IR 221
Maritime Union of Australia v Fair Work Ombudsman [2015] FCAFC 120
Miller v University of New South Wales (2003) 132 FCR 147
Minister of State for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273
Mohazab v Dick Smith Electronics Pty Ltd (No 2) (1995) 62 IR 200
Patrick Stevedores Holdings Pty Limited v Construction, Forestry, Maritime, Mining and Energy Union (No 4) [2021] FCA 1481
Pearce v W D Peacock & Co Ltd (1917) 23 CLR 199
Pillai v Singapore City Council [1968] 1 WLR 1278
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
Qantas Airways Ltd v Transport Workers’ Union of Australia (2022) 292 FCR 34
Qantas Airways Ltd v Transport Workers’ Union of Australia (2023) 278 CLR 571
Quirk v Construction, Forestry, Maritime, Mining and Energy Union [2021] FCA 1587; 312 IR 359
Ralph M Lee (WA) Pty Ltd v Fort (1991) 4 WAR 176
Registrar of Titles (WA) v Franzon (1975) 132 CLR 611
Re-JRL; Ex parte CJL (1986) 161 CLR 342
Romero v Farstad Shipping (Indian Pacific) Pty Ltd (No 3) [2017] FCAFC 102
Rumble v The Partnership (t/as HWL Ebsworth Lawyers) (2020) 275 FCR 423
Rumble v The Partnership (t/as HWL Ebsworth Lawyers) [2019] FCA 1409; 289 IR 72
Sayed v Construction, Forestry, Mining and Energy Union [2015] FCA 27; 327 ALR 460
Siagian v SanelPty Ltd (1994) 122 ALR 333
State of Victoria (Office of Public Prosecutions) v Grant [2014] FCAFC 184; 246 IR 441
Stefanovski v Digital Central Australia (Assets) Pty Ltd [2018] FCAFC 31; 368 ALR 607
Sunrise Brokers LLP v Rodgers [2015] ICR 272
SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362
Tattsbet Ltd v Morrow (2015) 233 FCR 46
The Administration of the Territory of Papua and New Guinea v Daera Guba (1973) 130 CLR 353
Thiess v Collector of Customs (2014) 250 CLR 664
Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507
Transport Workers’ Union of Australia v Qantas Airways Ltd [2021] FCA 873; 308 IR 244
Transport Workers’ Union of Australian v Qantas Airways Limited (Compensation Claim) [2024] FCA 1216; 334 IR 1216
Turner v Sawdon & Co [1901] 2 KB 653
Visscher v Giudice (2009) 239 CLR 361
Voitenko v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 355
Western Union Business Solutions (Australia) Pty Ltd v Robinson (2019) 272 FCR 547
White v Australian & New Zealand Theatres Ltd (1943) 67 CLR 266
White v Bristol Rugby Ltd [2002] IRLR 204
William Hill Organisation Ltd v Tucker [1999] ICR 291
Wong v National Australia Bank Ltd [2022] FCAFC 155; 318 IR 148
WorkPac Pty Ltd v Skene (2018) 264 FCR 536
Division: Fair Work Division Registry: New South Wales National Practice Area: Employment and Industrial Relations Number of paragraphs: 688 Date of last submissions: 7 March 2025 (Respondent)
14 March 2025 (Applicant)
21 March 2025 (Agreed Narrative of Salient Facts)Date of hearing: 3–7 February 2025
11–12 February 2025
27–28 February 2025Counsel for the Applicant: Mr O Fagir with Mr P Boncardo Solicitor for the Applicant: Maurice Blackburn Counsel for the Respondent: Mr I Neil SC with Ms V Bulut Solicitor for the Respondent: Seyfarth Shaw Australia ORDERS
NSD 189 of 2024 BETWEEN: ANTOINETTE LATTOUF
Applicant
AND: AUSTRALIAN BROADCASTING CORPORATION
Respondent
ORDER MADE BY:
RANGIAH J
DATE OF ORDER:
25 JUNE 2025
THE COURT DECLARES THAT:
1.The respondent, the Australian Broadcasting Corporation (the ABC) contravened s 772(1) of the Fair Work Act 2009 (Cth) (the FWA) by terminating the employment of the applicant, Antoinette Lattouf, for reasons including that she held a political opinion opposing the Israeli military campaign in Gaza.
2.The ABC contravened s 50 of the FWA by contravening cll 55.2.1(a), (b), (c), (f), 55.2.2 and 55.4.1(f) of the ABC Enterprise Agreement 2022–2025.
THE COURT ORDERS THAT:
3.The ABC pay Ms Lattouf compensation of $70,000.
4.The matter be set down for a hearing to determine the question of whether the ABC should be ordered to pay any pecuniary penalty and, if so, in what amount, on a date to be fixed.
5.The parties are to agree upon the procedural steps necessary to bring the question of any pecuniary penalty to a hearing and provide a draft order.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
The parties and the witnesses
[13]
The pleadings
[34]
Interpretation of s 772(1) of the FWA
[45]
Whether the principles applying to the construction of Part 3-1 apply to s 772(1)
[49]
The principles bearing on the application of s 772(1)
[89]
What is required to be pleaded and proved to enliven the presumption under s 783?
[92]
The standard of proof
[96]
Whether the opinions pleaded by Ms Lattouf are “political opinions”
[100]
Whether “political opinion” in s 772(1) encompasses the expression of political opinion
[117]
Whose reasons for the termination are relevant?
[131]
The evidence
[140]
Events before Monday, 18 December 2023
[143]
Events on Monday, 18 December 2023 – Day
[149]
Events on Monday, 18 December 2023 – Night
[184]
Events on Tuesday, 19 December 2023 - Day
[203]
Events on Tuesday, 19 December 2023 - Night
[241]
Events on Wednesday, 20 December 2023 – Morning
[257]
Events on Wednesday, 20 December 2023 – Afternoon
[274]
Events on Thursday, 21 December 2023
[331]
Subsequent events
[334]
Impartiality of the ABC
[337]
Assessment of witnesses
[350]
The issues concerning Ms Lattouf’s allegation of contravention of s 772(1) of the FWA
[371]
Whether the ABC terminated Ms Lattouf’s employment
[373]
Whether there is any issue estoppel or abuse of process
[384]
The FWC’s finding that Ms Lattouf’s employment was terminated
[395]
The parties’ submissions concerning whether Ms Lattouf’s employment was terminated
[400]
Construction of the phrase “terminate an employee’s employment” in s 772(1) of the FWA
[405]
Did the ABC terminate Ms Lattouf’s employment?
[424]
Whether the evidence is consistent with the hypothesis that the ABC was actuated by Ms Lattouf’s race or national extraction
[462]
Who, on behalf of the ABC, made any decision to terminate Ms Lattouf’s employment or materially contributed to that decision?
[470]
Whether the ABC has proved that the reasons for termination did not include any of Ms Lattouf’s pleaded political opinions
[490]
Whether it was the intention of the ABC Managers all along to get rid of Ms Lattouf because of her political opinions
[499]
Events leading to the termination of Ms Lattouf’s employment
[524]
Mr Ahern’s evidence about the Teams Meeting
[542]
Mr Latimer’s evidence about the Teams Meeting
[551]
Mr Melkman’s evidence about the Teams Meeting
[557]
Mr Oliver-Taylor’s evidence about the Teams Meeting
[560]
Analysis of Mr Oliver-Taylor’s asserted reasons for his decision
[577]
What were the actual reasons for Mr Oliver-Taylor’s decision?
[591]
The allegation of contravention of s 50 of the FWA
[635]
Relief
[656]
Conclusion
[684]
RANGIAH J:
On 7 October 2023, the Palestinian militant group, Hamas, launched a major attack on Israel, killing about 1,200 people and taking more than 250 hostages. Israel responded by bombing and launching an invasion of the Gaza Strip, causing massive destruction and killing many thousands of people.
The applicant, Antoinette Lattouf, made numerous social media posts expressing her views about the Israel/Gaza war. The major theme of her posts was condemnation of the mass killing of Palestinian civilians by Israeli forces, although some of her posts also condemned the killing of Israeli civilians by Hamas.
The Israel/Gaza war quickly became the most covered, contested and controversial news story in the world, with each side claiming that coverage by mainstream media was inaccurate and biased. A state of hostility developed between supporters of each side. In Australia, heated rallies and protests were held and widespread campaigns of vilification, including doxxing and cancelling, were conducted.
It was in the midst of this maelstrom that Ms Lattouf came to be employed by the respondent, the Australian Broadcasting Corporation (the ABC), to present the Sydney Mornings radio program for five days from Monday, 18 December to Friday, 22 December 2023.
Soon after Ms Lattouf presented her first program, the ABC began to receive complaints from members of the public. The complaints asserted she had expressed anti-Semitic views, lacked impartiality and was unsuitable to present any program for the ABC. It became clear that the complaints were an orchestrated campaign by pro-Israel lobbyists to have Ms Lattouf taken off air.
The complaints caused great consternation amongst the senior management of the ABC. Ms Lattouf was given what has been characterised by the ABC as a “direction” not to post anything on social media that would suggest she was not impartial in relation to the Israel/Gaza war. However, I find Ms Lattouf was merely provided with advice that it would be best not to post anything controversial about the war. That advice was also qualified by an indication that posting fact-based material from a verified source would be fine.
The campaign to have the ABC remove Ms Lattouf continued. At the same time, pro-Palestinian activists organised a protest outside the ABC’s Melbourne offices, presumably because they too were asserting that the ABC was biased.
On Wednesday, 20 December 2023, ABC managers became aware that on the previous day, Ms Lattouf had reposted a Human Rights Watch (HRW) video report entitled, “The Israeli Government is using starvation as a weapon of war in Gaza”, on her Instagram account, adding the words, “HRW reporting starvation as a tool of war” (the HRW Post). The HRW report had already been the subject of a story on ABC News. The consternation of senior managers of the ABC turned into what can be described as a state of panic.
Within the hour, a decision was made that Ms Lattouf would be taken off air. She was called into an office and informed she had shared a post that could be considered controversial and had breached the ABC’s policies. She was told that she would not be required for her two remaining shifts and to leave the premises. The policies she was alleged to have breached were not identified, nor was she given any opportunity to defend herself against the allegations. That was the end of Ms Lattouf’s employment with the ABC.
Section 772(1)(f) of the Fair Work Act 2009 (Cth) (the FWA) provides an employer must not terminate an employee’s employment for reasons which include political opinion, race or national extraction. Ms Lattouf claims the ABC terminated her employment for reasons that included her political opinions, race and national extraction.
Section 50 of the FWA provides a person must not contravene a term of an enterprise agreement. Ms Lattouf also claims the ABC failed to comply with its obligations under the ABC Enterprise Agreement 2022–2025 (the Enterprise Agreement), including by failing to give her an opportunity to respond to allegations of misconduct made against her.
Ms Lattouf asks the Court to make declaratory orders, award her compensation for non-economic loss and impose pecuniary penalties on the ABC.
The parties and the witnesses
Ms Lattouf describes herself as a “freelance journalist”, “content creator”, “public presenter”, and “speaker”. She has appeared on television panel shows such as Studio10, Q&A, Insiders, Sky News and The Drum, as well as on local radio. In pursuing her career, she has sought to maintain a high public profile, including through social media.
Ms Lattouf is of the Lebanese race and Lebanese national extraction. Her parents migrated to Australia from Lebanon before she was born.
Ms Lattouf gave evidence at the trial. She also called a consultant psychiatrist, Dr Nigel Strauss, who gave evidence relevant to her claim for compensation. They were both cross-examined.
The ABC is a body corporate continued in existence under s 5(1) of the Australian Broadcasting Corporation Act 1983 (Cth) (the ABC Act). Section 6(1) of the ABC Act sets out the ABC’s Charter, which includes the function of providing innovative and comprehensive broadcasting services of a high standard as part of the Australian broadcasting system.
Section 7 of the ABC Act provides for the governance of the ABC by a Board of Directors (the Board). Sections 9 and 10 require that there is a Managing Director, whose function is to manage the affairs of the ABC. Under s 12, the members of the Board include the Chairperson, the Managing Director and no fewer than four other directors.
Section 8 sets out the duties of the Board, which include ensuring that the functions of the ABC are performed efficiently and with the maximum benefit to the people of Australia while maintaining the ABC’s independence and integrity. It is important to note that under s 8(1)(c) of the ABC Act, the Board has a duty:
…to ensure that the gathering and presentation by the [ABC] of news and information is accurate and impartial according to the recognized standards of objective journalism.
Section 32 of the ABC Act provides the ABC may engage such employees as are necessary for the performance of its functions and the exercise of its powers, on terms and conditions determined by the ABC.
The ABC called the following witnesses to give evidence, each of whom was cross-examined:
·Ita Buttrose;
·David Anderson;
·Christopher Oliver-Taylor;
·Ben Latimer;
·Stephen Ahern;
·Mark Spurway;
·Simon Melkman; and
·Elizabeth Green.
I will briefly describe the positions held by the ABC’s witnesses at the time of the relevant events in December 2023 and their involvement in those events.
Ms Buttrose was the Chair of the Board. Ms Buttrose made clear her displeasure at Ms Lattouf, whom she regarded as an “activist”, having been engaged by the ABC. Ms Lattouf alleges Ms Buttrose materially contributed to the decision to terminate her employment.
Mr Anderson was the ABC’s Managing Director. Mr Anderson also repeatedly expressed his displeasure at Ms Lattouf having been employed by the ABC. Ms Lattouf alleges that Mr Anderson was one of the persons who made the decision to terminate her employment, or at least materially contributed to the decision.
Mr Oliver-Taylor was the ABC’s Chief Content Officer. He reported to Mr Anderson. Mr Oliver-Taylor was responsible for all content, apart from news content, that went to air across all ABC platforms – screen, audio and digital. His portfolio included responsibility for ABC Radio Sydney, although he had very limited interaction on a daily basis with particular programs such as Mornings.
The ABC asserts that Mr Oliver-Taylor was solely responsible for the decision to take Ms Lattouf off air. Mr Oliver-Taylor’s evidence was that he made the decision for six reasons, including his view that Ms Lattouf had not complied with a direction given to her not to post anything about the Israel/Gaza war and that she had contravened the ABC’s Personal Use of Social Media Guidelines (the Social Media Guidelines). The controversial issues in the case include whether these were Mr Oliver-Taylor’s actual reasons for the decision, and whether his actual reasons included Ms Lattouf’s political opinion, race or national extraction.
Mr Latimer was the ABC’s Head of Audio Content. He reported to Mr Oliver-Taylor. Mr Latimer had direct management responsibility for the programs on ABC Radio Sydney. Ms Lattouf alleges that Mr Latimer materially contributed to the decision to terminate her employment.
Mr Ahern was the Acting Head of the ABC’s Capital City Networks. He reported to Mr Latimer. Mr Ahern was responsible for overseeing and managing the operation of all Australian capital city radio stations operated by the ABC. It was Mr Ahern who decided to engage Ms Lattouf and, on Mr Oliver-Taylor’s instructions, informed Ms Lattouf that she would not be required for her two remaining shifts.
Mr Spurway was the Acting Manager of ABC Radio Sydney. He reported to Mr Ahern.
Mr Melkman was the Acting Editorial Director of the ABC within the Editorial Policies Division. He reported to Mr Anderson. The Editorial Policies Division is responsible for providing pre-broadcast editorial advice across the ABC. Mr Melkman provided advice to management about whether Ms Lattouf’s social media posts had breached the ABC’s editorial policies.
Ms Green was the Content Director for ABC Radio Sydney. She reported to Mr Spurway. Her responsibilities included leading teams to deliver programs going to air on ABC Radio Sydney. One of those programs was Mornings.
It was Ms Green who advised Ms Lattouf it would be best not to post anything controversial about the Israel/Gaza war. Ms Green asserts that, before the decision to take Ms Lattouf off air was made, she expressly told Mr Ahern, Mr Spurway and Mr Melkman that her communication to Ms Lattouf had not been a direction. The controversial issues include whether Ms Green made that statement and, if she did, whether her statement was communicated to Mr Oliver-Taylor before he decided to remove Ms Lattouf.
The ABC also relies on the affidavit of Monica Vagg, Head of People Services and Remuneration. Ms Vagg’s affidavit addresses the ABC’s processes for engaging casual employees and terminating employment. Ms Vagg produces and explains the ABC’s records concerning Ms Lattouf’s engagement. Ms Vagg was not required for cross-examination.
I will use the term ABC Managers to refer generally to some or all of Mr Anderson, Ms Buttrose, Mr Oliver-Taylor, Mr Latimer, Mr Ahern, Mr Spurway and Mr Melkman.
The pleadings
Although Ms Lattouf alleges contravention of both s 50 and s 772(1) of the FWA, the parties’ focus was substantially upon the latter provision. Section 772 provides, relevantly:
772 Employment not to be terminated on certain grounds
(1)An employer must not terminate an employee’s employment for one or more of the following reasons, or for reasons including one or more of the following reasons:
…
(f)race, colour, sex, sexual orientation, breastfeeding, gender identity, intersex status, age, physical or mental disability, marital status, family or carer’s responsibilities, subjection to family and domestic violence, pregnancy, religion, political opinion, national extraction or social origin;
…
Note:This subsection is a civil remedy provision (see Part 4-1).
(2)However, subsection (1) does not prevent a matter referred to in paragraph (1)(f) from being a reason for terminating a person’s employment if:
(a)the reason is based on the inherent requirements of the particular position concerned; or
(b)if the person is a member of the staff of an institution that is conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed—the employment is terminated:
(i)in good faith; and
(ii)to avoid injury to the religious susceptibilities of adherents of that religion or creed.
…
Section 783(1) of the FWA then provides, relevantly:
783 Reason for action to be presumed unless proved otherwise
(1) If:
(a)in an application in relation to a contravention of subsection 772(1), it is alleged that a person took, or is taking, action for a particular reason; and
(b)taking that action for that reason would constitute a contravention of subsection 772(1);
it is presumed that the action was, or is being, taken for that reason, unless the person proves otherwise.
…
It may be seen that if it is alleged the employment of an employee was terminated for reasons that include particular attributes, characteristics or conduct specified in s 772(1), then s 783 imposes an onus on the employer to prove the termination of employment was not for reasons that included any such attributes, characteristics or conduct.
Section 50 of the FWA provides:
50 Contravening an enterprise agreement
A person must not contravene a term of an enterprise agreement.
Note 1: This section is a civil remedy provision (see Part 4-1).
…
The Enterprise Agreement applied to Ms Lattouf and to the ABC at the time of the relevant events. Clause 55.2.1 of the Enterprise Agreement provides where an allegation of misconduct is made, the employee will be, inter alia, advised of the nature of the alleged misconduct and given an opportunity to respond. Clause 55.4.1 provides that when an allegation of serious misconduct is substantiated, the ABC may dismiss the employee without notice.
Ms Lattouf’s current pleading, her Further Consolidated Amended Statement of Claim (FCASOC), alleges, in summary:
·Ms Lattouf “held political opinions”, including:
(a)opposing the Israeli military campaign in Gaza;
(b)supporting Palestinians’ human rights;
(c)questioning the authenticity of footage of demonstrators chanting antisemitic chants at the Sydney Opera House; and
(d)that media organisations should report about the conflict between Israel and Palestinians accurately and impartially.
·On Monday, 18 December 2023, Ms Lattouf commenced an engagement as a casual employee presenting Mornings on ABC Radio Sydney for five days.
·Ms Buttrose and Mr Anderson received multiple letters and emails complaining about Ms Lattouf, which sought to pressure the ABC to not employ her and/or terminate her employment for reasons including her political opinion and/or race and/or national extraction.
·Ms Lattouf’s race is Lebanese and/or Arab and/or Middle Eastern. Her national extraction is Lebanese and/or Arab and/or Middle Eastern and she is a descendant of foreign immigrants.
·On Monday, 18 December 2023, Ms Green told Ms Lattouf that:
·the ABC had received a large number of complaints from pro-Israel lobbyists about Ms Lattouf being on air;
·Ms Lattouf should keep a low profile on Twitter; and
·Ms Lattouf could post factual information from reputable sources like Amnesty International.
·On Tuesday, 19 December 2023, Ms Lattouf made the HRW Post.
·On at least four occasions between Monday, 18 December and Wednesday, 20 December 2023, the ABC reported on HRW’s claims that Israel was “weaponising starvation in Gaza”.
·Ms Lattouf’s HRW Post did not contravene the social media policy of the ABC; or contravene any direction given by the ABC to Ms Lattouf.
·On Wednesday, 20 December 2023, Mr Ahern told Ms Lattouf that:
·as a result of a specific social media post she had shared on Instagram, the ABC had decided that she would not be returning to complete her last two shifts on air;
·she had been asked not to post, and had breached the ABC’s social media policy by reposting the HRW Post because it called into question the ABC’s impartiality; and
·she could return to her desk, get her bag and leave.
·The ABC terminated Ms Lattouf’s employment (she ultimately submits the decision to terminate was made by Mr Anderson and Mr Oliver-Taylor and that Ms Buttrose and Mr Latimer materially contributed to the decision).
·Ms Lattouf’s termination was for reasons including her political opinions and/or race and/or national extraction and the ABC thereby contravened s 772(1)(f) of the FWA.
·The allegation conveyed by Mr Ahern was an allegation of “misconduct” for the purposes of cl 55.1.1 of the Enterprise Agreement.
·An allegation of misconduct having been made, the ABC was obliged to comply with the process in cl 55.2.1 of the Enterprise Agreement, but failed to do any of the things required by the process and thereby contravened s 50 of the FWA.
·The ABC purported to summarily dismiss Ms Lattouf in circumstances where she was not guilty of, and had not committed, “serious misconduct” within the meaning of cll 55.6.1 and 57.1.1(a) and thereby contravened cl 57.1.1 of the Enterprise Agreement and s 50 of the FWA.
·Alternatively, the ABC breached contractual terms that Ms Lattouf was to present Mornings for five days commencing on Monday, 18 December 2023 and/or she would be given a reasonable opportunity to present on air during the term of the contract.
·By repudiating the contract, the ABC terminated Ms Lattouf’s employment on a basis that was not set out in cl 57.1.1 and thereby contravened the Enterprise Agreement and s 50 of the FWA.
·In the alternative, if the ABC did not summarily dismiss Ms Lattouf or terminate her employment, then not allowing her to present Mornings on Thursday, 21 December and Friday, 22 December 2023 was not a sanction or disciplinary action that was authorised under the Enterprise Agreement and the ABC thereby contravened s 50 of the FWA.
In its Consolidated Amended Defence, the ABC broadly denies Ms Lattouf’s allegations concerning the reasons, circumstances and consequences of her removal and, relevantly, pleads in response:
·It was an express term of the contract that the ABC could unilaterally and at any time change the details of any engagement with Ms Lattouf, including the duration of the engagement, hours of work required and/or the work to be performed.
·On Monday, 18 December 2023, Ms Green directed Ms Lattouf not to post anything related to the Israel/Gaza war, or, alternatively, anything related to the conflict which could be perceived as unbalanced, during the week.
·On Wednesday, 20 December 2023, Mr Ahern informed Ms Lattouf that the ABC did not require her to perform any work for the remaining two shifts; the effect of this statement being that her employment would continue until the conclusion of her shift on Friday, 22 December 2023.
·The ABC denies it was required to follow the process set out at cl 55.2 of the Enterprise Agreement.
·The ABC did not allege or assert that Ms Lattouf engaged in serious misconduct within the meaning of cll 55.6.1 and 57.1.1(a) of the Enterprise Agreement.
·The ABC did not terminate Ms Lattouf’s employment (summarily or otherwise), but instead her employment ended by the effluxion of time at the conclusion of the rostered shift on Friday, 22 December 2023.
·Mr Oliver-Taylor was the decision-maker, and his reasons for not requiring Ms Lattouf to perform any work for her two remaining shifts were:
·his view that Ms Lattouf’s HRW Post meant she may have breached the ABC’s policies or guidelines;
·his view that she had not complied with a direction given to her in relation to her use of social media; and
·his loss of trust and confidence in her to present live radio in accordance with directions issued to her.
·The ABC did not terminate Ms Lattouf’s employment for reasons which included any of Ms Lattouf’s political opinions as pleaded, her race or national extraction.
In summary, the ABC defends the allegation of contravention of s 772(1) of the FWA principally on the following bases:
·Ms Lattouf’s employment was not terminated, and she was merely taken off air (or not required to present) on Thursday, 21 December and Friday, 22 December 2023, as the ABC was entitled to do under the contract of employment; and her employment ended by the effluxion of time.
·Mr Oliver-Taylor was the sole decision-maker for the ABC in respect of the decision to take Ms Lattouf off air; and his reasons did not include the pleaded political opinions, her race, or national extraction.
·Even if it is found on the evidence that the ABC’s reasons included Ms Lattouf’s expression of political opinions, Ms Lattouf would not succeed because she has only alleged in her pleading that the ABC’s reasons included that she held such opinions.
·While subparagraph (a) of paragraph 1A of the FCASOC pleads a “political opinion”, the allegations in subparagraphs (b), (c) and (d) do not have a “political” character, and subparagraph (c) does not plead an “opinion”.
Ms Lattouf points out that the ABC has not argued s 772(2) of the FWA is applicable. That is, the ABC has not submitted, that in view of the obligation of the Board to ensure the impartial presentation of information under s 8(1)(c) of the ABC Act, it is an inherent requirement that an ABC presenter be impartial and be perceived by the public as impartial.
The ABC points out that Ms Lattouf’s allegation is of contravention of s 772(1) of the FWA. Ms Lattouf has not alleged, as she might have, that the ABC took “adverse action” against her because of her political opinions, race or national extraction in contravention of s 351(1) of the FWA.
I will consider Ms Lattouf’s allegation of contravention of s 772(1) of the FWA before turning to consider her allegations concerning s 50 of the FWA.
Interpretation of s 772(1) of the FWA
Section 772(1) appears in Pt 6-4, Div 2 of the FWA, under the heading, “Termination of employment”. The section provides, relevantly:
An employer must not terminate an employee’s employment for one or more of the following reasons, or for reasons including one or more of the following reasons:
…
(f) race…political opinion, national extraction...
Section 770 provides that in Pt 6-4, “employer” and “employee” have their ordinary meanings.
It is common ground that s 772(1) requires Ms Lattouf to prove her employment was terminated. Beyond that, there is little agreement between the parties as to the construction of the provision. There is very little authority concerning s 772(1).
A fundamental issue in dispute is that the ABC submits s 772(1) should be construed in the same way as the “General Protections” provisions of Pt 3-1 of the FWA, whereas Ms Lattouf contends to the contrary. In particular, Ms Lattouf submits the width of the connection between the termination and the protected attribute required by the word “for” in s 772(1) is broader than the phrase “because of” under Pt 3-1.
Whether the principles applying to the construction of Part 3-1 apply to s 772(1)
The ABC argues there is no difference in the meaning of “for” in s 772(1) and the expressions “because” and “because of” in Pt 3-1 of the FWA. The ABC submits that s 772(1) should be construed in the same way as s 346 was construed by Gageler J (as the Chief Justice then was) in Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (2014) 253 CLR 243 (BHP Coal) at [85]. His Honour considered the unanimous holding of Board of Bendigo Regional Institute of Technical and Further Education v Barclay [No 1] (2012) 248 CLR 500 (Barclay) was that the word “because” in s 346 of the FWA requires a particular reason to be “an operative and immediate reason” for the taking of the adverse action.
The construction of a statutory provision proceeds by reference to its text considered from the outset in context and having regard to the legislative purpose: CIC Insurance Limited v Bankstown Football Club Limited (1997) 187 CLR 384 at 408; Thiess v Collector of Customs (2014) 250 CLR 664 at [22]. In SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362, the plurality explained at [14]:
This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected.
The meaning of the provision must be determined by reference to the language of the statute “viewed as a whole”, and must be construed, “on the prima facie basis that its provisions are intended to give effect to harmonious goals”: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [69]-[70].
The interpretation that would best achieve the legislative purpose is to be preferred to any other interpretation: Acts Interpretation Act 1901 (Cth), s 15AA. However, this principle may be of little assistance in interpreting a statutory provision that, “strikes a balance between competing interests”: Carr v The State of Western Australia (2007) 232 CLR 138 at [5].
Part 3-1 of the FWA is entitled “General Protections” and consists of ss 334-378. A number of provisions of Pt 3-1 prohibit the taking of action “because” or “because of” specified factors. Unlike s 772(1), those provisions have been the subject of extensive judicial consideration.
Section 351(1) in Pt 3-1 of the FWA is closely comparable to s 772(1), and provides:
An employer must not take adverse action against a person who is an employee, or prospective employee, of the employer because of the person’s race, colour, sex, sexual orientation, breastfeeding, gender identity, intersex status, age, physical or mental disability, marital status, family or carer’s responsibilities, subjection to family and domestic violence, pregnancy, religion, political opinion, national extraction or social origin.
(Emphasis added.)
Section 340(1)(a)(i) provides, relevantly, “A person must not take adverse action against another person because the other person…has a workplace right…”.
Section 346(a) provides, relevantly, “A person must not take adverse action against another person…because the other person…is…an officer or member of an industrial association…”.
Section 361 (which applies to an alleged contravention of Pt 3-1) is in very similar terms to s 783 (which applies to an alleged contravention of s 772(1)). Each section provides, relevantly:
If…it is alleged that a person took, or is taking, action for a particular reason…[and] taking that action for that reason…would constitute a contravention…it is presumed that the action was, or is being, taken for that reason…unless the person proves otherwise”.
(Emphasis added.)
Section 361 has been described as enacting a “reverse onus”: see Celand v Skycity Adelaide Pty Ltd (2017) 256 FCR 306 (Celand) at [94] and [148].
The only case in which the Court has considered s 772(1) is Fair Work Ombudsman v Foot & Thai Massage Pty Ltd (in liquidation) (No 4) [2021] FCA 1242 (Foot &Thai Massage). In that case, Katzmann J was concerned with the meaning of “race”, “national extraction”, and “social origin” in s 351(1) of the FWA. Her Honour noted s 772(1) also contains those expressions and continued at [680]:
In contrast to Pt 6–4 Div 2, however, Pt 3–1, which includes s 351, does not rely on the external affairs power in the Constitution in the same way as the unlawful termination protections, which, unlike the provisions in Pt 3–1, apply to all employees in Australia (see Explanatory Memorandum at [1342]). Nevertheless, the attributes listed in s 351(1) also appear in s 772(1)(f). It has been said that “[i]t is a sound rule of construction to give the same meaning to the same words appearing in different parts of a statute unless there is reason to do otherwise”. Notwithstanding the different constitutional foundations for the different parts of the [FWA], I do not consider that there is reason to do otherwise in determining the true meaning of the same terms in s 351(1).
(Citations omitted.)
It may be observed while Katzmann J held that the expressions “race”, “national extraction”, and “social origin” in s 351(1) have the same meanings they bear in s 772(1), her Honour had no occasion to consider whether the phrase “because of” in s 351(1) has the same meaning as “for” in s 772(1).
Ms Lattouf submits the “narrow approach” taken to ss 340(1) and 352 in BHP Coal is inapplicable to s 772(1). She points out that the language of s 772(1) (“for”) is different from ss 340, 346, 351 and 352 (“because” or “because of”) and submits the use of different language shows the legislature intended a different meaning.
Ms Lattouf also submits the statutory context of s 772(1) is different from Pt 3-1. She argues the express purpose of Pt 6-4, Div 2, as set out in s 771, is to give effect to the international conventions specified in that section. She points to Arts 2 and 19 of the International Covenant on Civil and Political Rights (the ICCPR) and the International Labour Organisation’s Convention (No. 111) concerning Discrimination in Respect of Employment and Occupation (the ILO Discrimination Convention). The Convention (No. 158) Concerning Termination of Employment at the Initiative of the Employer (the Termination of Employment Convention) is relevant to the construction of a different aspect of s 772(1), as will be discussed later (collectively, the International Conventions).
Ms Lattouf submits that the dominant consideration is the need to give effect to the statutory object expressed in s 771, and requires s 772(1) be read in a way which best gives effect to the International Conventions’ guarantees of freedom of opinion and expression, protection against discrimination on the basis of political opinion and the provision of effective remedies. Ms Lattouf contends the alternative approach urged by the ABC would be destructive of the protective effect of s 772(1).
Ms Lattouf submits, on the correct approach to s 772(1), a decision maker’s actual reasoning process and state of mind are relevant to the existence of a causal relationship but are not determinative. She submits the causative inquiry is not limited to those matters to which the decision maker actually adverted. I understand the submission to be that the existence of a causal relationship is enough to satisfy s 772(1).
The ABC submits there are textual and contextual considerations which support the submission that the word “for” in s 772(1) ought to be given the same meaning and effect as “because” in Pt 3-1. It submits the construction contended for accords with the ordinary and natural meaning of the word “for”. The ABC points out that the word “for” is used in ss 360 and 361 which apply to allegations of contravention of Pt 3-1 and therefore have the same meaning as “because” in relevant provisions of Pt 3-1. It submits a cohesive and harmonious reading of Pt 3-1 with s 772(1) would give the same meaning to the word “for”.
I will start by considering Ms Lattouf’s submission that as s 772(1) uses the word “for” while the provisions of Pt 3-1 use the expressions “because” and “because of”, s 772(1) must be intended to have a different meaning.
The words “for” and “because” are prepositions expressing a relationship between things. There is a very substantial overlap in the ordinary meanings of the two words. This is illustrated by the Macquarie Dictionary definition of “because” as including “for the reason that”, and the definition of “for” as including “because of” and “because”.
In Australian Securities and Investments Commission v BHF Solutions Pty Ltd (2022) 293 FCR 330 at [156], O’Bryan J described “for” as, “a protean word in that its meaning, being the nature of the relationship expressed, is governed by the nouns or verbs it connects”. The same is true of the word “because”.
The word “for” is capable of denoting a variety of causal relationships. The degree of closeness of the relationship conveyed in the statutory provision must be determined by reference to the language of the relevant statutory provision as a whole and the statutory context.
The breadth of the relationship conveyed by the words “because” or “because of” in Pt 3-1 has been authoritatively determined.
In BHP Coal, French CJ and Kiefel J held at [7]:
The focus of the inquiry as to whether s 346(b) has been contravened is upon the reasons for [the employer] taking the adverse action. This is evident from the word “because” in s 346, and from the terms of s 361. The inquiry involves a search for the reasoning actually employed by [the employer]. The determination to be made by the court is one of fact, taking account of all the facts and circumstances of the case and available inferences.
(Citations omitted.)
In Barclay, Gummow and Hayne JJ noted that the inquiry is whether a proscribed reason was a “substantial and operative” or “operative or immediate” reason for the adverse action. Their Honours held:
[103]… The phrase “operative or immediate reason” used in [Maritime Union of Australia v CSL Australia Pty Ltd (2002) 113 IR 326] is relevantly indistinguishable from the phrase “a substantial and operative factor” used by Mason J in [General Motors-Holden Pty Ltd v Bowling (1976) 12 ALR 605].
[104]… An employer contravenes s 346 if it can be said that engagement by the employee in an industrial activity comprised “a substantial and operative” reason, or reasons including the reason, for the employer’s action and that this action constitutes an “adverse action” within the meaning of s 342.
In BHP Coal, Gageler J described the inquiry as being directed into “the operative and immediate reason” for the adverse action. His Honour held at [85]:
Analysis in the appeal to this Court must begin…with consideration of this Court’s decision in Board of Bendigo Regional Institute of Technical and Further Education v Barclay [No 1]. The unanimous holding in that case was that, read in the context of ss 360 and 361 of the Act and of its legislative history, the word “because” in s 346 of the Act connotes the existence of a particular reason as an operative and immediate reason for taking adverse action. Where the adverse action taken is in consequence of a decision made by a responsible individual within a corporation, the existence or non-existence of a particular reason as an operative and immediate reason for taking that adverse action turns on an inquiry into the mental processes of that individual.
(Citations omitted.)
In Pt 3-1, the words “for” and “because” are used interchangeably. For example, s 346 prohibits taking, “adverse action against another person because the other person…is…an officer or member of an industrial association…”; and s 361 then provides that if it is alleged that, “a person took, or is taking, action for a particular reason…it is presumed that the action was, or is being, taken for that reason…unless the person proves otherwise” (emphasis added). It has not been doubted that the presumption under s 361 applies to an allegation of contravention of s 346: see BHP Coal at [6], [8], [38], [55], [85], [93].
Section 360 of the FWA provides that, for the purposes of Pt 3-1, “a person takes action for a particular reason if the reasons for the action include that reason” (emphasis added). Again, it has not been doubted that the word “for” in s 360 has the same meaning as “because” and “because of” in Pt 3-1.
In Barclay v Board of Bendigo Regional Institute of Technical and Further Education (2011) 191 FCR 212, Gray and Bromberg JJ observed at [24] that the expressions “because” and “for the reason that” in s 346 are different only in style and not substance.
Accordingly, in Pt 3-1, the word “for” has the same meaning as “because” and “because of”.
In Registrar of Titles (WA) v Franzon (1975) 132 CLR 611 at 618, Mason J (as the Chief Justice then was) observed that, “It is a sound rule of construction to give the same meaning to the same words appearing in different parts of a statute unless there is reason to do otherwise”. The word “for” has been treated synonymously with “because” and “because of” in Pt 3-1 and can be taken to have the same meaning in s 772(1) unless there is some adequate reason to regard it as having a different meaning.
In some provisions of the FWA, “because of” and “for” are used in a single phrase. Section 153 prohibits the inclusion of terms in a modern award that discriminate against an employee “because of, or for reasons” including an employee’s race, political opinion or national extraction. Section 195(1) defines a term of an enterprise agreement as a “discriminatory term” to the extent it discriminates “because of, or for reasons” including an employee’s race, political opinion or national extraction. It is arguable that “because of” and “for” were intended to cover different but overlapping territory, but an alternative construction is that “for” was merely included to reinforce the connection imported by “because of”. It is unnecessary to determine whether the words are intended to have the same or different meanings in those provisions, but it does seem unlikely they intend to apply both a narrower test of causation connoted by “because of” and a broader test of causation connoted by “for”. If that were the intended meaning, it would not have been necessary to include the supposedly narrower expression “because”.
As Katzmann J observed in Foot & Thai Massage, Pt 6-4 Div 2 of the FWA applies to all employees in Australia whereas Pt 3-1 does not. The Explanatory Memorandum for the Fair Work Bill 2008 (Cth) states at [1342]:
Part 3–1 does not rely on the external affairs power in the Constitution in the same way as the existing unlawful termination protections (which apply to all employees in Australia). To maintain existing protections, Division 2 of Part 6–4 provides for unlawful termination protections for employees who do not have a remedy under this Part. This ensures that every employee in Australia has a remedy for unlawful termination.
In Jacobs v Adelaide Theosophical Society Inc [2022] FWCFB 79; 316 IR 108, the Full Bench of the Fair Work Commission (FWC) explained at [72]:
…[Section] 772 enables an employee who is not entitled to take action under Pt 3-1 in respect of a dismissal, to make an unlawful termination application. Reasons for an employee not being entitled to take action under Pt 3-1 may include that the relevant employer is not a national system employer or the discriminatory reason alleged by the employee for the dismissal, is not unlawful because of ss 351(2)(a) or (b).
Section 351(1) of Pt 3-1 confines the circumstances where the provision is contravened to where there is a “substantial and operative” or “operative and immediate” connection between the adverse action (which includes, under s 342, dismissal) and a specified attribute in respect of national system employees. It seems unlikely such a limitation was intended in respect of some employees under s 351(1), only to be removed in respect of all employees under s 772(1).
Ms Lattouf argues the High Court’s narrow construction of “because” was influenced by the concern of Pt 3-1 with workplace rights and industrial activity, contrasting Pt 6-4 which is said to be concerned only with the implementation of the International Conventions. She submits that factors such as, “the balance between employers and employees central to the operation of s 361” (see Barclay at [61]), are not relevant to Pt 6-4. However, the object of the FWA stated in s 3 is, “to provide a balanced framework for cooperative and productive workplace relations that promotes national economic prosperity and social inclusion for all Australians”. That “balanced framework” is to be achieved, inter alia, by “tak[ing] into account Australia’s international labour obligations”. Accordingly, the objective of achieving “balance between employers and employees” cannot be disregarded when interpreting s 772(1).
In Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 at 38, the plurality held courts should, “favour a construction of a Commonwealth statute which accords with the obligations of Australia under an international treaty”. That is because, as Mason CJ and Deane J explained in Minister of State for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 at 287, in the enactment of a statute, Parliament is regarded, prima facie, as intending to give effect to Australia’s obligations under international law: see also, Kingdom of Spain v Infrastructure Services Luxembourg sàrl (2023) 275 CLR 292 at [16]; Firebird Global Master Fund II Ltd v Republic of Nauru (2015) 258 CLR 31 at [44]; CPCF v Minister for Immigration and Border Protection (2015) 255 CLR 514 at [8].
Section 771 of the FWA states that the object of Pt 6-4, Div 2 is to “give effect, or further effect, to” the specified International Conventions. Ms Lattouf relies on Arts 2 and 19 of the ICCPR. Under Art 2, each State Party undertakes to, “ensure to all individuals…the rights recognized in the present Covenant, without distinction of any kind, such as race…political or other opinion, national or social origin…”; and to, “ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy”. Under Art 19, “Everyone shall have the right to hold opinions without interference”, and, “Everyone shall have the right to freedom of expression”. However, s 771(f) of the FWA only refers to Art 26 of the ICCPR, not Arts 2 and 19. Article 26 provides that, “the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race…political or other opinion…national or social origin”. It is plain that Parliament did not intend to adopt Art 26 in full in enacting s 772(1) of the FWA.
Ms Lattouf also relies on the ILO Discrimination Convention, which relevantly provides under Art 2 that, “Each Member…undertakes to declare and pursue a national policy designed to promote…equality of opportunity and treatment in respect of employment and occupation, with a view to eliminating any discrimination in respect thereof”. However, the protections enacted in s 772(1) are limited to termination of employment and are subject to the limitations set out in s 772(2). It is apparent s 772(2) does not purport to eliminate “distinction of any kind” or “any discrimination” in employment. Accordingly, s 772(1) cannot be construed as if Parliament intended to enact the International Conventions regardless of the objective of “balance” described in s 3 of the FWA.
In her supplementary submissions filed after the hearing, Ms Lattouf asserts that the existence of the “inherent requirements defence” in s 772(2)(a) and the “religious susceptibilities defence” in s 772(2)(b) weigh decisively against the ABC’s construction because, on the ABC’s construction, both defences would be “otiose, and inutile”. The submission is difficult to understand in the form in which it is put. In any event, s 351(2) is in very similar terms to s 772(2) and it has not been doubted that the principles from Barclay and BHP Coal apply to s 351(1): see Western Union Business Solutions (Australia) Pty Ltd v Robinson (2019) 272 FCR 547 at [114]-[120]; Rumble v The Partnership (t/as HWL Ebsworth Lawyers) (2020) 275 FCR 423 (Rumble FCFCA) at [32]-[34], [36]-[37] and [40]-[41]; State of Victoria (Office of Public Prosecutions) v Grant [2014] FCAFC 184; 246 IR 441 at [32].
In my opinion, the degree of connection required by the word “for” in s 772(1) is indistinguishable from that imported by “because” and “because of” in Pt 3-1. The principles relevant to interpretation of those expressions in Pt 3-1 are relevant to the construction of s 772(1).
The principles bearing on the application of s 772(1)
In Alam v National Australia Bank Limited (2021) 288 FCR 301 (Alam), the Full Court held at [14] that the following matters bearing upon the application of s 361 in relation to s 340 are well settled:
(a)in order to attract the application of s 361, an applicant should allege with sufficient particularity both the action said to constitute “adverse action” and the particular reason or particular intent with which it is said the action was taken;
(b)the party making the allegation that adverse action was taken “because” of a particular circumstance must establish the existence of that circumstance as an objective fact. That is, it is for the applicant to establish all the elements of the alleged contravention other than the reasons of the respondent for taking the adverse action;
(c)an employer takes adverse action in contravention of s 340 if a proscribed reason is a “substantial and operative” reason for the action or if the reasons for the action include the proscribed reason;
(d)the discharge of the s 361 onus requires proof on the balance of probabilities and usually requires decision-makers to give direct evidence of their reasons for taking the adverse action;
(e)the determination of why an employer took adverse action against an employee requires an inquiry into the actual reason or reasons of the employer and is to be made in the light of all the circumstances established in the proceeding;
(f)while the evidence of the decision-maker as to the reasons for the taking of the adverse action may, if accepted by the Court, satisfy the s 361 onus, such evidence is not a necessary pre-condition;
(g)the Court’s rejection of the evidence of the decision-maker as to the reasons for the adverse action will ordinarily be “a weighty consideration and often a determinative consideration” in the determination of whether the reason alleged by the applicant was a substantial and operative reason for the action, but such a rejection does not relieve the Court from considering all the evidence probative of whether the reason asserted by the applicant has been negated. When there is evidence of a broad range of facts and circumstances, which are not dependent on acceptance of the decision-maker’s evidence about his or her asserted reason for the dismissal, such evidence must be taken into account in assessing whether the reasons asserted by an applicant were a substantial and operative reason for the action;
(h)even if the reasons advanced by a respondent as the actual reasons for the decision are accepted, the absence of evidence that there were no additional reasons or that the actual reasons did not include the alleged proscribed reasons, may result in a failure to rebut the presumption;
(i)the decision-maker’s knowledge of the circumstance asserted by an applicant to be the reason for the adverse action, and even its consideration, does not require a finding that the action was taken because of that circumstance. Nor does the fact that the adverse action has some association with a matter supporting a proscribed reason; and
(j)adverse action taken against a person because of conduct resulting from the exercise of workplace rights may not offend the s 340(1) prohibition.
(Citations omitted.)
These principles are applicable to the construction and application of ss 772(1) and 783 of the FWA.
The ABC submits the appropriate test of the connection between the termination and a protected attribute under s 772(1) imported by the word “for” is whether the attribute is an “operative and immediate” reason for the termination, adopting the language of Gageler J in BHP Coal, which I applied in Construction, Forestry, Mining and Energy Union v Anglo Coal (Dawson Services) Pty Ltd (2015) 238 FCR 273 (Anglo Coal (Dawson Services)) at [132]-[135]. However, in Alam, the Full Court applied the formulation given by Gummow and Hayne JJ in Barclay at [104] of a “substantial and operative” reason for the action. It is not apparent that anything turns upon the difference, but I will adopt the formulation given by the Full Court.
What is required to be pleaded and proved to enliven the presumption under s 783?
The ABC submits the bare making of an allegation that a particular action has been taken for a proscribed reason will not, without more, enliven the presumption under s 783, relying on Tattsbet Ltd v Morrow (2015) 233 FCR 46 at [119].
There are two conditions inherent in s 783 (by analogy with s 361) upon which Ms Lattouf has the onus of proof. First, she must establish as an objective fact the circumstance said to be the reason for the termination decision: see Qantas Airways Ltd v Transport Workers’ Union of Australia (2022) 292 FCR 34 (Qantas FCFCA) at [68] and [143]; Alam at [14(b)]. Second, she must establish, “the evidence is consistent with the hypothesis”, that the ABC was actuated by a proscribed reason in respect of the particular action in question: Celand at [155].
In Australian Building and Construction Commissioner v Hall (2018) 261 FCR 347, the Full Court held:
[13]…Before [the presumption under s 361] operates, however, two pre-conditions must be met. First, under s 361(1)(a) the particular reason or the particular intent for the contravening action must be alleged in the application. It is with respect to that alleged reason or that alleged intent that the person concerned must prove otherwise. The word “particular” in s 361(1)(a) must be given its ordinary and natural meaning. Relevantly, that is: “2. being a definite one, individual, or single, or considered separately: each particular item. 3. distinguished or different from others or from the ordinary; noteworthy; marked; unusual. … 6. dealing with or giving details, as an account, description, etc., of a person; detailed; minute; circumstantial”.
[14]It follows that an allegation under s 361(1)(a) must precisely and distinctly identify the alleged reason, or the alleged intent, for the contravening conduct…
[15]The second pre-condition which must exist for the presumption in s 361(1) to operate is of equal importance in this matter. It is the requirement in s 361(1)(b) that “taking that action for that reason or with that intent would constitute a contravention of this Part”. This pre-condition therefore requires more than an allegation with respect to an action, reason or intent. Additionally, it requires that taking the alleged action, for the alleged reason or with the alleged intent (or both), “would constitute a contravention of that Part”.
…
[19]Having regard to these observations and, in particular, to the provisions of s 361(1)(b), we consider that an applicant wishing to take advantage of the presumption in s 361, in addition to making the allegation in a form that meets the requirements of s 361(1)(a), must provide sufficient information about the action, and the related reason or intent (or both) for which that action was taken, to show that, in combination, they would constitute a contravention of a provision of Pt 3-1 of the FWA. This means that, in a proceeding such as the present one, which was conducted on pleadings, an applicant is required to plead in his or her statement of claim all the material facts concerning the contraventions alleged against the respondent…
(Citations omitted.)
In Australian Red Cross Society v Queensland Nurses’ Union of Employees (2019) 273 FCR 332 (Australian Red Cross Society), the Full Court observed at [74]:
It may well be appropriate to describe the requirement that the evidence is consistent with the hypothesis that the respondent was actuated by a proscribed purpose [as] a pre-condition or as operating before the presumption is engaged.
The standard of proof
Section 140(1) of the Evidence Act 1995 (Cth) provides, “the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities”.
Section 140(2) of the Evidence Act requires that the Court’s satisfaction must be reached by taking into account the nature of the cause of action, the nature of the subject matter of the proceeding and the gravity of the matters alleged. These considerations reflect the judgment of Dixon J in Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-363: see Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Competition and Consumer Commission (2007) 162 FCR 466 at [31].
The allegations made against the ABC are of contraventions of provisions that attract civil penalties. I accept, for the purposes of s 140(2) of the Evidence Act, that the allegations are serious and may have serious consequences. These circumstances call for the application of the Briginshaw principles.
If the presumption under s 783 is enlivened, the ABC is required to prove on the balance of probabilities that its reasons for any termination of Ms Lattouf’s employment did not include her pleaded political opinions, race or national extraction.
Whether the opinions pleaded by Ms Lattouf are “political opinions”
Ms Lattouf alleges at paragraph 45B of her FCASOC that the ABC terminated her employment, “for reasons including…one or more of the applicant’s political opinions as pleaded in paragraph 1A”.
At paragraph 1A, Ms Lattouf alleges she “held” the following “political opinions”:
(a)opposing the Israeli military campaign in Gaza;
(b)supporting Palestinians’ human rights;
(c)questioning the authenticity of footage of demonstrators chanting antisemitic chants at the Sydney Opera House; and
(d)that media organisations should report about the conflict between Israel and Palestinians accurately and impartially.
The ABC admits that subparagraph 1A(a) of the FCASOC pleads a “political opinion” but contends the matters alleged in subparagraphs (b), (c) and (d) do not have a “political” character, and subparagraph (c) does not allege any “opinion”.
The expression “political opinion” is not defined in the FWA.
In Sayed v Construction, Forestry, Mining and Energy Union [2015] FCA 27; 327 ALR 460 (Sayed) at [164]-[177], Mortimer J (as the Chief Justice then was) considered the meaning of the term “political opinion” in s 351 of the FWA. Her Honour concluded at [172]:
…there is no doubt at all that membership of a political party, and engaging in activities associated with a political party, is one of the clearest examples of the holding and manifestation of a political opinion, such membership and involvement being one of the quintessential ways in which people seek to bring about change to governments, and to government policies and priorities.
In arriving at that conclusion, Mortimer J reviewed cases that had considered the same or similar expressions in the context of anti-discrimination, extradition, and refugee law.
Citing Canada(Attorney-General) v Ward [1993] 2 SCR 689 at 746, Mortimer J observed at [170] that under refugee law, the ground of “political opinion” may encompass, “any opinion on any matter in which the machinery of state, government and policy may be engaged”.
Her Honour at [171] cited the following passage from the judgment of Hill J in Voitenko v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 355 at [33]:
…It suffices here to say that the holding of an opinion inconsistent with that held by the government of a country explicitly by reference to views contained in a political platform or implicitly by reference to acts (which where corruption is involved, either demonstrate that the government itself is corrupt or condones corruption) reflective of an unstated political agenda, will be the holding of a political opinion. With respect, I agree with the view expressed by Davies J in Minister for Immigration & Ethnic Affairs v Y…that views antithetical to instrumentalities of government such as the Armed Forces, security institutions and the police can constitute political opinions for the purposes of the Convention. Whether they do so will depend upon the facts of the particular case.
In Ralph M Lee (WA) Pty Ltd v Fort (1991) 4 WAR 176, Anderson J held at 183:
I do not consider there is any reason to give the word ‘political’ in [the Equal Opportunity Act 1984 (WA)] a wider meaning than it bears in normal usage. In my opinion a complainant alleging discrimination on the ground of his political conviction is required to show that the conviction possessed by him and shown to have been the ground for his disadvantageous treatment by the respondent, was a conviction which had to do with government — the policies of government, the structure, composition, role, obligations, purposes or activities of government. Convictions about these things and other things of that kind relating to government or the relationship between citizens and government may be properly described as political convictions.
Section 772(1) prohibits termination of employment for reasons that include the attributes, characteristics and conduct specified in the provision. Section 772(1), like s 351(1), can be described as an anti-discrimination provision. I consider Sayed, and the authorities considered in that case concerning the meaning of “political opinion”, have equal application to s 772(1).
The expression “political opinion” within s 772(1) of the FWA encompasses the opinion of an employee about the policies or actions of the government of a country or its armed forces. It encompasses Ms Lattouf’s opinions about the policies or actions of the government of Israel and its armed forces, and may extend to the way media organisations report about such policies or actions, in the context of the Israel/Gaza war.
The question of whether the matters pleaded in paragraph 1A of the FCASOC are “political opinions” falls to be considered in the context of the pleading as a whole and the case that Ms Lattouf seeks to establish.
Ms Lattouf alleges that she held a “political opinion” opposing the Israeli military campaign in Gaza. The ABC admits this is a “political opinion”.
Ms Lattouf alleges she held a “political opinion” supportive of Palestinians’ human rights. The context is that her Instagram posts, including the HRW Post, made it clear that she believed Palestinians’ human rights were being violated by the Israeli government and its armed forces. I find Ms Lattouf’s support for Palestinians’ human rights was a political opinion.
Ms Lattouf alleges she held a “political opinion” that media organisations should report about the Israel/Gaza war accurately and impartially. That allegation must be understood in the context of her contribution to an article in Women’s Agenda, of which she informed Ms Green and which included:
It is the worst humanitarian crisis and violence against children in modern times…and yet sections of our media would rather invest time and energy in targeting female journalists and commentators who dare to deviate from reciting IDF talking points, rather than interrogating those responsible for fractures in social cohesion locally and the ongoing slaughter of children in Gaza.
The intention of tabloid media campaigns which target individuals with a platform is to get us to shut up. To look away, to stop investigating and stop revealing harm. Essentially to stop doing our job…
In the context of Ms Lattouf’s evident belief that the media was attempting to deflect attention from atrocities perpetrated by the Israeli armed forces, I consider her opinion that the media should report about the war accurately and impartially was a political opinion.
Ms Lattouf alleges she held a political opinion, “questioning the authenticity of footage of demonstrators chanting anti-Semitic chants at the Sydney Opera House”. Although the allegation could be better phrased, viewed in context, I understand the allegation to be that Ms Lattouf held an opinion that media reports claiming that demonstrators’ chants were anti-Semitic were unverified. In the context of her opinion that the media should report on the Israel/Gaza war accurately and impartially, I consider her opinion can be described as a “political opinion”.
Whether “political opinion” in s 772(1) encompasses the expression of political opinion
Ms Lattouf argues the prohibition in s 772(1) against the termination of employment for reasons including “political opinion” encompasses both holding and expressing a political opinion. The ABC submits that termination for expressing a political opinion is not prohibited, although its primary submission is that the question need not be determined because Ms Lattouf has only pleaded her termination was for reasons including she “held” (not that she “expressed”) political opinions.
In Rumble v The Partnership (t/as HWL Ebsworth Lawyers) [2019] FCA 1409; 289 IR 72 at [131], Perram J at first instance and, on appeal in Rumble FCFCA at [43], the Full Court, preferred to leave open the question of whether s 351 of the FWA proscribes dismissing an employee for expressing a political opinion.
Ms Lattouf relies on Sayed, where Mortimer J regarded both the holding and manifestation of political opinion as protected attributes under s 351 of the FWA. Accordingly, her Honour found at [177], “the applicant’s membership of, and involvement in the activities of, the Socialist Alliance constituted the holding and manifestation of a political opinion”.
Section 772(1)(f) provides an employer must not terminate an employee’s employment for reasons that include their “political opinion”. The provision is not expressly restricted to the holding of a political opinion. The language of the phrase is wide enough to encompass both holding a political opinion and expressing a political opinion. If the provision is to be read as only prohibiting termination for reasons including that an employee holds a particular political opinion, but not as prohibiting termination for reasons including that an employee has expressed a particular political opinion, then such a construction must appear from the context.
There is a distinction between holding a political opinion and expressing a political opinion. To hold an opinion is to have or possess a particular view. A person may hold an opinion without expressing it; and a person may express an opinion without holding it. The latter category may include an actor in a political advertisement or a politician. It may be acknowledged that in most cases the distinction will have no practical consequence: a person who expresses an opinion will usually be attributed with holding that opinion. However, the distinction may be of importance in the context of s 772(1) of the FWA.
An employee’s employment would not ordinarily be terminated because they hold an unexpressed political opinion. An employee’s employment could only be terminated for holding a particular political opinion if the employer knows or believes the employee holds that opinion. The termination of an employee’s employment for their political opinion would usually result from the expression, communication or manifestation of that political opinion. The employer might then terminate the employee’s employment for reasons such as vehement disagreement with the opinion or the potential for damage to the employer’s business.
The holding of an unexpressed political opinion could result in termination of employment where the employer attributes the holding of such an opinion to an employee. An employer might, for example, perceive an employee to hold a particular political opinion because that opinion has been articulated by the employee’s spouse or associates. In Sayed, Mortimer J saw no relevant distinction between a person having a protected attribute, and the perception of a person having a protected attribute or characteristic associated with that attribute, observing:
[194]...The respondent seeks to separate a protected attribute from characteristics either associated with it, or perceived by the decision-maker to be associated with it. In the days before pregnancy became a distinctly protected attribute in anti-discrimination law, becoming pregnant was seen as a characteristic associated with women, or perceived to be associated with women. An employer might say: I refused to give the female applicant the job because she might become pregnant, not because she was a woman. As it has been found, that is still sex discrimination: see, eg, Wardley v Ansett Transport Industries (Operations) Pty Ltd (1984) EOC 92-002. This approach was not the subject of appeal…
[195]At base, distinctions between protected attributes and real or perceived characteristics associated with those attributes permits the kind of stereotyping which anti-discrimination laws are designed to prevent. If there is an apprehension about what an individual might do, or how she or he might act, because of views or behaviour attributed to people with the protected attribute of that individual, acting on such an apprehension is just as discriminatory as treatment because of what the individual has done, or how the individual has acted.
However, in most cases it would be the expression of a political opinion that might lead an employer to terminate an employee’s employment. It seems evident that one aim of s 772(1) is to prevent an employer from terminating the employment of an employee at the behest or encouragement of political lobbyists who seek to prevent the employee from voicing their political opinions. It seems quite unlikely to have been intended that the expression of a political opinion is excluded from protection under s 772(1)(f).
The view that s 772(1)(f) protects against termination both for holding and expressing political opinions is reinforced by considering the protected ground of “religion”. It is not specified whether “religion” means holding a religious belief, or engaging in religious practice, or both. However, it seems most unlikely that only holding a religious belief, and not any manifestation of that belief, is protected.
One of the international treaties specified in s 771 of the FWA is the ILO Discrimination Convention. Article 1(1) provides that the term “discrimination” includes, “any distinction, exclusion or preference made on the basis of…political opinion…which has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation”.
In an article entitled, “The concept of discrimination in ILO Convention No.111” (1994) ICLQ 43(4), the author, Henrik Nielsen, states at 837-838:
It is the established case law of the ILO supervisory bodies that, in protecting workers against discrimination on the basis of political opinion, Convention No.111 implies that this protection is afforded to them also in respect of activities expressing or demonstrating opposition to the established political principles - since the protection of opinions which are neither expressed nor demonstrated would be pointless… In this way, two other human rights, namely freedom of expression and freedom of association, become central elements in the criterion of “political opinion” in Convention No.111.
The article cites the Report of the Committee set up to consider the representation presented by the International Confederation of Free Trade Unions under article 24 of the ILO Constitution alleging non-observance of the Discrimination (Employment and Occupation) Convention, 1958 (No. 111) by Czechoslovakia (CGT). That report stated at [17]:
As regards the relationship among these provisions of the Convention, the Committee of Experts on the Application of Conventions and Recommendations has observed that “in protecting workers against discrimination on the basis of political opinion, the Convention implies that this protection shall be afforded to them in respect of activities expressing or demonstrating opposition to the established political principles-subject only to the limitations referred to below - since the protection of opinions which are neither expressed nor demonstrated would be pointless…”.
Ms Lattouf summarises her case concerning breaches of the Enterprise Agreement as follows:
First, in the events which occurred on 20 December 2023, the ABC was alleging that Ms Lattouf had failed to comply with a direction (and in some aspects of its evidence to have breached a policy). These were allegations of misconduct. The procedural provisions of the Agreement regulated how allegations of misconduct were to be dealt with and were enlivened. They operate as a code for dealing with [allegations] of misconduct. They were not followed and the ABC contravened s50 in multiple respects. This claim does not depend upon Ms Lattouf’s argument that her employment was terminated being accepted.
Second, the sanction imposed on Ms Lattouf was not permitted by the Agreement and the ABC contravened s50. This claim also does not depend upon Ms Lattouf’s argument that her employment was terminated being accepted.
Third, if Ms Lattouf’s contention that her employment was terminated is accepted, the ABC unlawfully terminated her employment summarily in circumstances where she was not guilty of any misconduct, let alone serious misconduct and in a manner not permitted by the Agreement resulting in a further contravention of s50.
The ABC submits Ms Lattouf’s claim that the ABC breached cl 55.2 of the Enterprise Agreement proceeds upon false premises that the ABC made an allegation of misconduct against Ms Lattouf and it sought either to discipline her pursuant to cl 55.4 or terminate her employment pursuant to cl 57. The ABC argues the only benefit cl 55.2 provides an employee is that they cannot be disciplined pursuant to cl 55.4 or dismissed under cl 57, unless the processes in cl 55.2 are followed. The ABC submits Mr Oliver-Taylor merely made a programming decision based on views he had formed and concerns he had come to hold about Ms Lattouf’s ability to be trusted on air. The ABC submits it neither disciplined Ms Lattouf pursuant to cl 55.4 nor terminated her employment pursuant to cl 57.
In City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union [2006] FCA 813; 153 IR 426, French J (as his Honour then was) gave the following exposition of the approach to the construction of industrial instruments:
[53]The construction of an award, like that of a statute, begins with a consideration of the ordinary meaning of its words. As with the task of statutory construction regard must be paid to the context and purpose of the provision or expression being construed. Context may appear from the text of the instrument taken as a whole, its arrangement and the place in it of the provision under construction. It is not confined to the words of the relevant Act or instrument surrounding the expression to be construed. It may extend to “… the entire document of which it is a part or to other documents with which there is an association”. It may also include “… ideas that gave rise to an expression in a document from which it has been taken.
…
[57]It is of course necessary, in the construction of an award, to remember, as a contextual consideration, that it is an award under consideration. Its words must not be interpreted in a vacuum divorced from industrial realities. There is a long tradition of generous construction over a strictly literal approach where industrial awards are concerned. It may be that this means no more than that courts and tribunals will not make too much of infelicitous expression in the drafting of an award nor be astute to discern absurdity or illogicality or apparent inconsistencies. But while fractured and illogical prose may be met by a generous and liberal approach to construction, I repeat what I said in City ofWanneroo v Holmes (1989) 30 IR 362 at 380:
“Awards, whether made by consent or otherwise, should make sense according to the basic conventions of the English language. They bind the parties on pain of pecuniary penalties.”
(Most citations omitted.)
The relevant principles were also summarised by the Full Court in WorkPac Pty Ltd v Skene (2018) 264 FCR 536 at [197] and James Cook University v Ridd (2020) 278 FCR 566 (Ridd) at [65].
There is no requirement at common law to provide an employee with procedural fairness before taking disciplinary action: Byrne at 443; Pillai v Singapore City Council [1968] 1 WLR 1278 at 1284. It is evident that cl 55.2 of the Enterprise Agreement aims to fill that gap by requiring the ABC to, inter alia, inform an employee of the content of an allegation of misconduct and provide them with a reasonable opportunity to defend themselves before a decision is made as to whether the allegation is substantiated.
After complying with the prescribed procedures, the employer may decide the allegation of misconduct is not substantiated. Alternatively, the employer may decide the allegation is substantiated, in which case, the employer may decide to take no further action under cl 55.4.2 or take one or more of the disciplinary actions described in cl 55.4.1.
The ABC’s argument that the procedures in cl 55.2 do not apply unless the employer decides a misconduct allegation is substantiated and decides to take one of the disciplinary actions set out in cl 55.4 is inconsistent with the clear language of cl 55.2. The employer’s obligation to follow the process arises “where an allegation of misconduct is made”, not after the allegation has been determined by the ABC.
A consequence of the ABC’s construction of cl 55.2 would be that the ABC is entitled to keep secret an allegation of misconduct, determine the allegation to be substantiated and then decide under cl 55.4.2 that no disciplinary action should be taken. Even if no disciplinary action were ultimately taken, it would be a troubling and serious consequence for any employee to have a finding of misconduct made against them. A finding of misconduct would be particularly egregious if the employee were not advised of the nature of the alleged misconduct or given an opportunity to respond before the employer determined the allegation to be substantiated. The ABC’s construction would be entirely inconsistent with the purpose of the clause, namely to require the ABC to provide procedural fairness before it is decided whether an allegation of misconduct is substantiated.
I also reject the ABC’s submission that no allegation of misconduct was made against Ms Lattouf and that no disciplinary action was taken against her. On Wednesday, 20 December 2023, Mr Ahern told Ms Lattouf she was “not required” to present the two remaining Mornings programs and she should “leave as soon as possible” after informing her production team.
Mr Ahern provided two reasons for the ABC’s decision: first, she had posted social media content about the Israel/Gaza war which she had been advised or asked not to do; and, second, she had committed, “a breach of ABC policies”. The reasons involved adverse findings against Ms Lattouf’s because of her improper conduct in failing to comply with a request and breaching policies.
The sequence was peculiar because Mr Ahern first conveyed the ABC’s decision that Ms Lattouf would not be permitted to present the last two programs and then he explained the allegations and findings that had been made against her.
I find the ABC made allegations of “misconduct” against Ms Lattouf within cl 55.1.1 of the Enterprise Agreement, even though those allegations had already been determined to be substantiated. The expression “misconduct” is given an inclusive definition in cl 55.1.1. The ABC alleged, in effect, that Ms Lattouf had engaged in improper conduct as an employee of the ABC, or improper conduct which brought, or was likely to bring, the ABC into disrepute. It may be noted that no allegation was conveyed by Mr Ahern that Ms Lattouf had wilfully disobeyed or disregarded a direction and I have found that disobedience or disregard of a direction was not in fact a reason for the action taken against her.
I find the ABC breached cl 55.2 of the Enterprise Agreement by failing to:
·advise Ms Lattouf in writing of the nature of the alleged misconduct;
·advise her that she may choose to be accompanied or represented by a person of her choice;
·advise her in writing of the process to be undertaken by the ABC to determine whether the alleged misconduct was substantiated; and
·give her an opportunity to respond and/or explain her actions and any mitigating factors that she may have sought to have taken into consideration.
The action taken against Ms Lattouf, namely refusing to permit her to present Mornings and excluding her from the workplace, was represented by Mr Ahern to be a consequence of the two reasons he gave. In Rubel at 321, a dismissal was described as a refusal by the employer to accept further service. The ABC “dismissed” Ms Lattouf within the meaning of cl 55.4.1 by refusing to allow her to provide further service when it was obliged to do so under an implied term of the employment contract. It also “dismissed” Ms Lattouf by terminating the contract of employment.
Ms Lattouf was not given a direction not to post on social media about the Israel/Gaza war. The ABC admits Ms Lattouf’s HRW Post was not in breach of the Social Media Guidelines. In Mr Oliver-Taylor’s email of 11.19 am on Tuesday, 19 December 2023, he accepted that there had not been a breach of those Guidelines by reason of her previous posts. Nor have any other “ABC policies” been identified as having been breached. Ms Lattouf had only been given advice not to post on social media about the Israel/Gaza war and there was no misconduct or serious misconduct in her failing to take advice. I find the ABC contravened cl 55.4.1(f) of the Enterprise Agreement by dismissing Ms Lattouf for serious misconduct in circumstances where she had not engaged in serious misconduct, thereby contravening s 50 of the FWA.
I also find that the ABC contravened cl 55.2.2 of the Enterprise Agreement by failing to inform Ms Lattouf at the earliest opportunity that the alleged conduct was likely to constitute serious misconduct. That was also a contravention of s 50 of the FWA.
In case I am wrong in my finding that Ms Lattouf was dismissed, I will consider Ms Lattouf’s alternative argument that the sanction imposed on Ms Lattouf was not permitted by the Enterprise Agreement.
Clause 55.4.1 of the Enterprise Agreement provides where an allegation of misconduct is substantiated, the ABC may impose one or more of any of the disciplinary actions specified in the clause. The clause must be construed as prohibiting the ABC from imposing any forms of disciplinary action that are not specified. The permitted forms of disciplinary action do not include refusing to allow an employee to perform work or excluding the employee from the workplace.
Accordingly, if I am wrong in finding the ABC dismissed Ms Lattouf, the imposition upon Ms Lattouf of forms of disciplinary action that were not permitted was a contravention of cl 55.4.1 of the Enterprise Agreement and a contravention of s 50 of the FWA.
Relief
In her Further Consolidated Amended Originating Application, Ms Lattouf seeks the following relief:
(a)declarations that the ABC contravened ss 50 and 772(1)(f) of the FWA;
(b)an order for compensation for non-economic loss;
(c)orders that the ABC pay pecuniary penalties for its contraventions;
(d)an order that the ABC implement a compliance program to educate its managers on the requirements of cl 55 of the Enterprise Agreement.
Ms Lattouf’s closing submissions do not address her claim for a compliance program and I proceed on the basis that the claim has been abandoned.
The claim for the imposition of a pecuniary penalty will be set down for hearing on another date.
I propose to make declarations that the ABC contravened ss 50 and 772(1) of the FWA.
I will proceed to determine Ms Lattouf’s claim for compensation for non-economic loss.
Section 545 of the FWA provides, relevantly:
545 Orders that can be made by particular courts
Federal Court and Federal Circuit and Family Court of Australia (Division 2)
(1)The Federal Court…may make any order the court considers appropriate if the court is satisfied that a person has contravened…a civil remedy provision.
…
(2)Without limiting subsection (1), orders the Federal Court…may make include the following:
…
(b)an order awarding compensation for loss that a person has suffered because of the contravention;
…
Compensation may be awarded for non-economic loss, including for shock, distress, hurt or humiliation because of a contravention of the FWA: Ridd at [155]-[157].
In Australian Licensed Aircraft Engineers Association v International Aviation Service Assistance Pty Ltd (2011) 193 FCR 526, Barker J observed at [423] that if compensation is to be awarded, one of the principal tasks is to ensure there is an appropriate causal connection between the contravention and the loss claimed: see also Burazin v Blacktown City Guardian Pty Ltd (1996) 142 ALR 144 at 155.
In Aitken v Construction, Mining, Energy, Timberyards, Sawmills and Woodworkers Union of Australia — Western Australian Branch (1995) 63 IR 1, Lee J held at 9, that the Court will:
…have regard to what is reasonable in the circumstances and will look at what would have been likely to occur had the Act not been contravened. The Court will consider the detriment occasioned to the employee by the employer’s contravention of the Act, and the extent to which it is reasonable to compensate the employee for such consequences.
(Citation omitted.)
In Maritime Union of Australia v Fair Work Ombudsman [2015] FCAFC 120, the Full Court held at [28]:
The task of the primary judge, having found the relevant contraventions, was to assess the compensation, if any, that was causally related to those contraventions. That involved not an examination of what did happen, but an assessment of what would or might have occurred, but which could no longer occur (because of the contraventions).
In Transport Workers’ Union of Australian v Qantas Airways Limited (Compensation Claim) [2024] FCA 1216; 334 IR 1216 (Qantas (Compensation Claim)), Lee J observed at [208]:
As is well recognised, the assessment of compensation for emotional distress or the like is inherently imprecise and non-scientific due to the fact that the Court is required to place a monetary value on something that is not easily able to be financially quantified. In this sense, it has been observed that it is impossible to precisely translate such non-economic loss into a monetary sum. Nevertheless, the Court must, doing the best that it can, award an amount it considers to be reasonable compensation for the non-economic loss sustained, taking into account the individual facts of each case.
(Citations omitted.)
In Patrick Stevedores Holdings Pty Limited v Construction, Forestry, Maritime, Mining and Energy Union (No 4) [2021] FCA 1481, Lee J observed at [28]:
Other factors that have contributed to a loss are beside the point unless they point to the loss not being causally related or the proposed compensatory order being other than “appropriate”.
Ms Lattouf deposes that immediately after she was terminated, she felt shock and humiliation. She says the termination of her employment, including the allegation that she had engaged in editorial wrongdoing and breached a management directive, was widely publicised. Ms Lattouf felt this affected her reputation and perception of her integrity, causing her great distress. Over the following weeks she experienced notable dips in her mood, became increasingly anxious and found herself crying frequently throughout the day.
Ms Lattouf deposes that due to the public scrutiny surrounding her termination, she also experienced feelings of paranoia which caused her to feel unsafe. She had never experienced such feelings before.
Ms Lattouf deposes she has had trouble sleeping, her anxiety is heightened, her appetite has been suppressed and she has had three panic attacks. She drinks alcohol more frequently now and takes sedatives to help her sleep.
Ms Lattouf deposes that she is seeing her psychologist more frequently. Her personal relationships have been adversely affected to some extent.
Ms Lattouf deposes that on two occasions after her termination she has received threatening phone calls, resulting in her becoming increasingly worried for her safety and the safety of her family. However, I am not satisfied the threatening calls and death threats were related to the termination of her employment. Ms Lattouf made a number of controversial posts on publicly accessible social media platforms about the Israel/Gaza war. It is far more likely the threats against her resulted from her social media posts rather than the termination of her employment and its associated publicity.
It is apparent from observing Ms Lattouf in the witness box that the termination of her employment and the circumstances in which it occurred caused her great distress and continues to do so. That is unsurprising. She was dismissed on short notice. She was not given any opportunity to answer the allegations against her in circumstances where she had compelling answers to give. Any person would feel utterly dismayed and humiliated in those circumstances.
The high-profile nature of Ms Lattouf’s position as the presenter of Mornings meant her termination was bound to attract a high level of publicity. Indeed, The Australian had already indicated that it intended to write about the complaints concerning Ms Lattouf’s employment with the ABC and published an article shortly after the event stating that she had been “sacked”. I accept the negative publicity associated with her termination added to her distress.
Ms Lattouf relies upon the evidence of Dr Nigel Strauss, a consultant psychiatrist. Dr Strauss describes Ms Lattouf as having a reasonably long psychiatric history. I do not propose to describe the details of that history.
Dr Strauss diagnoses Ms Lattouf with an exacerbation of her underlying persistent depressive disorder with high levels of anxiety. Dr Strauss considers that Ms Lattouf’s prognosis is good and with the lapse of time, resolution of her legal dispute and ongoing treatment, she should eventually overcome the exacerbation.
The ABC submits that Dr Strauss’ opinion ought to not be accepted for reasons including that he made his diagnosis retrospectively and on the basis of only one consultation which was based entirely on Ms Lattouf’s subjective account. The ABC points out that Dr Strauss accepted under cross examination that the subject matter of the proceedings was just one of a number of factors that had exacerbated her underlying and pre-existing condition. Dr Strauss understandably did not attempt to identify the extent to which her termination exacerbated her pre-existing condition in comparison to other factors.
I accept Ms Lattouf’s evidence as to the distress and symptoms she has experienced as a result of the termination of her employment. I also accept Dr Strauss’ opinion that the termination of Ms Lattouf’s employment and the circumstances in which it occurred resulted in an exacerbation of her underlying and pre-existing psychiatric condition.
However, I find Ms Lattouf’s condition was also exacerbated by other factors, including ruminations about the conflict in Gaza and the threats she received. These are not causally related to her termination.
The extent to which the termination of Ms Lattouf’s employment exacerbated her underlying psychiatric condition cannot be separated out from other factors with any precision. Nevertheless, I accept the termination contributed significantly to the exacerbation. I find the exacerbation caused by the termination will resolve in time.
Ms Lattouf relies on cases involving discrimination or sexual harassment where compensation ranging between $90,000 and $140,000 was awarded for non-economic loss. In Qantas (Compensation Claim), Lee J awarded $100,000 to an unlawfully terminated employee who developed a major psychiatric illness as a result of the contravening conduct. I consider that those cases are not comparable with the present case.
Ms Lattouf contends an amount between $100,000 and $150,000 should be awarded to her for non-economic loss. The ABC submits that the Court should not award, “anything more than modest compensation”.
I consider that the appropriate award of compensation for Ms Lattouf’s non-economic loss is $70,000.
Conclusion
I have found that the ABC contravened s 772(1) of the FWA by terminating Ms Lattouf’s employment for reasons including that she held political opinions opposing the Israeli military campaign in Gaza. I have rejected Ms Lattouf’s allegations that the reasons for her termination included her race or national extraction.
I have held that the ABC contravened s 50 of the FWA by contravening cll 55.2.1, 55.2.2, and 55.4.1(f) of the Enterprise Agreement.
I will make declarations that the ABC breached ss 50 and 772(1) the FWA.
I have determined that Ms Lattouf will be awarded $70,000 for her non-economic loss pursuant to s 545(1) of the FWA.
I will make directions to bring the matter to a hearing on the question of whether any pecuniary penalty ought to be imposed on the ABC pursuant to s 546 of the FWA and, if so, in what amount.
I certify that the preceding six hundred and eighty-eight (688) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Rangiah. Associate:
Dated: 25 June 2025
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