Osborne and Ranse v Ethnic Broadcasters Council of the Act and Surrounding Districts Inc (Discrimination) - [2015] ACAT 30

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

OSBORNE & RANSE v ETHNIC BROADCASTERS COUNCIL OF THE ACT AND SURROUNDING DISTRICTS INC (Discrimination) [2015] ACAT 30

DT 14/09
DT 14/10
Catchwords: DISCRIMINATION – strike out application – voluntary association – whether a board member of a voluntary association is an ‘employee’- whether voluntary organisations are exempt from section 31 of the Discrimination Act 1991 – whether a member’s right to stand for office is a ‘benefit’ under section 31

Legislation cited: ACT Civil and Administrative Tribunal Act 2008 ss 9, 32, 48
Anti-Discrimination Act 1977 (NSW) ss 57

Associations Incorporation Act 1991 ss 48
Disability Discrimination Act 1992 (Cth) ss 27
Discrimination Act 1991 ss 7, 8, 10, 31, 68
Human Rights Commission Act 2005 ss 53, 98
Work Health and Safety Act 2011

Cases cited: Abdalla v Viewdaze Pty Ltd (2003) 53 ATR 30

City of Perth v DL (Representing the Members of People Living with AIDS (WA) Inc) (1994) EOC 92-634
Council of the Law Society of ACT & the Legal Practitioner [2011] ACAT 49
Gindy v Chief Minister & ACT Government [2011] ACAT 67
Khan v Blacktown City Community Radio SWR FM Association Inc [2006] NSWADT 15
Yaraka Holdings Pty Limited v Giljevic [2006] ACTCA 6

List of Texts/Papers

cited:NSW Law Reform Commission in its Report 92 (1999) - Review of the Anti-Discrimination Act 1977 (NSW);

Tribunal: Mr A. Anforth – Senior Member

Date of Orders:  13 April 2015
Date of Reasons for Decision:       13 April 2015
ACT CIVIL & ADMINISTRATIVE TRIBUNAL       ) DT 14/09
DT 14/10

BETWEEN:
VARAPORN OSBORNE
First Applicant
(DT 14/09)
GREG RANSE
Second Applicant
(DT 14/10)

AND:
ETHNIC BROADCASTERS
COUNCIL OF THE ACT AND SURROUNDING DISTRICTS INCORPORATED
Respondent

TRIBUNAL: Mr A. Anforth – Senior Member

DATE: 13 April 2015

ORDER

Both applications are dismissed pursuant to section 32(1)(b) ACT Civil and Administrative Tribunal Act 2008.

………………………………..
Mr A. Anforth, Senior Member

REASONS FOR DECISION

This case concerns applications brought by the two Applicants under the Discrimination Act 1991 (‘DA’) that were referred to the Tribunal by the ACT Human Rights Commission (‘HRC’).
The Respondent is an incorporated association in the ACT that operates on ACT government grants to facilitate the existence of ethnic radio broadcasting. It has a constitution which provides for corporate and individual membership and places the management of the Respondent in the hands of an annually elected Executive Committee consisting of the President, Vice President, Secretary, Assistant Secretary, Treasurer and three other members.
The First Applicant was the President of the Respondent until about 21 April 2014 when she was purportedly suspended from office by a resolution of the Executive Committee of the Respondent. The Second Applicant is her partner who was the Secretary of the Respondent and who was also suspended from office at the same time. Subsequent to the purported suspensions, the Executive Committee purported to permanently remove both Applicants from their office.
The events that gave rise to the two applications to the Tribunal came against a background of conflict within the Executive Committee. The merits of this conflict are of no relevance to the Tribunal’s present deliberations under the DA; nor is the issue of whether the Respondent has complied with its own Constitution in the suspensions and ultimate removal from office of the Applicants. There are other potential causes of actions and remedies open to the Applicants to address these issues which have been brought to the Applicants’ attention.
The presently relevant train of events started on 14 April 2014 when the Second Applicant sent an email to other members of the Executive asserting that the First Applicant was being overworked in her presidential capacity, was suffering a stress related illness and had suffered considerable consequential financial detriment in her employment as a real estate agent. The Second Applicant asserted a lack of due diligence by the Respondent in its care for the First Applicant’s health and foreshadowed a potential compensation claim by the First Applicant to recover her consequential losses. This email by the Second Applicant was sent to the Respondent without the knowledge of the First Applicant.
A member of the Executive Committee, Ms Vandermensbrugghe, appears to have taken it upon herself to respond to this email. With the purported concurrence of other Executive Committee members she suggested to the First Applicant that she take temporary leave of office until the issue could be addressed. The First Applicant refused that request and denied any adverse health issues. Ms Vandermensbrugghe, then arranged another meeting of some Executive Committee members who purported to pass a motion to stand both Applicants down from office pending a general meeting of members. The precise sequence of events is set out below.
The First Applicant asserts that the suspension from office amounts to discrimination against her on the basis of her imputed disability in the form of the stress related condition from which the Second Applicant asserted she suffered. She asserts that she was an unpaid employee of the Respondent in her presidential capacity, and accordingly the discriminatory conduct of the Respondent is in breach of section 10 of the DA (which prohibits discrimination on the basis of disability in the context of employment).
The First Applicant also asserts that the decision to suspend her from office amounted to ‘victimisation’ within the meaning of section 68 of the DA in that it arose because of the implied threat in the email of the Second Applicant to take actions to recover compensation for the losses sustained by the First Applicant as a result of her stress condition.
The Second Applicant asserts that his suspension from office was by reason of his ‘association’ with the First Respondent, which is said to attract the operation of section 7(2)(n) of the DA; and this is also the basis for his claim of ‘victimisation’ under section 68 of the DA.
The Respondent denies the whole of the Applicants’ claims but more immediately has made an Interim Application under section 32 of the ACT Civil and Administrative Tribunal Act 2008 (‘ACAT Act’) to strike out both matters before the Tribunal on the basis that both lack any substance at law and are bound to fail.
The Respondent relies on section 31 of the DA which it is said creates exception from the operation of Part 3 of the DA for ‘voluntary bodies’ such as the Respondent, i.e. any discriminatory conduct by the Respondent is not unlawful conduct. In the Respondent’s submission section 31 of the DA is a complete answer to the Applicants’ claims.
In the alternative, the Respondent denies that the First Respondent was in an employment relationship with the Respondent in her capacity as President, whether paid or unpaid, such that section 10 of the DA has no application. In the absence of any application of section 10 of the DA there is no other provision in the DA upon which the Applicants can base their discrimination claims.
The Respondent denies that any allegation made to date by the Applicants in the course of the proceedings is capable of amounting to victimisation within the meaning of section 68 of the DA.
The present decision is the determination of the Respondent’s Interim Application.
For the reasons given below, the Tribunal agrees with the Respondent’s submission that section 10 of the DA has no application in the present case, i.e. there was no employment relationship between the First Applicant and the Respondent. The Tribunal also agrees with Respondent’s submission that no allegation has been raised by the Applicants that is capable of sustaining a claim under section 68.
The Tribunal has reservations about whether the section 31 exemption applies in this case, but it is not necessary to resolve this issue.

BACKGROUND

On 23 April 2015, the First Applicant lodged a complaint with the HRC asserting she had been the subject of unlawful discrimination by the Respondent on the basis of her disability in the course of her employment with the Respondent. She also alleged that she had been the subject of victimization by the Respondent.
The content of the Complaint is set out over 9 pages and is not easy to follow. It contains extracts from a series of emails, mainly between the Applicants and Ms Vandermensbrugghe, the Vice President of the Respondent.
One of the emails quoted in the Complaint is from the Second Applicant on 10 April 2014 and says, inter alia:
Nim (the First Applicant) is on medication especially over the Court case and has lost 3 houses (app $30000) at least through her work at the radio. It is now nearing a compensation claim due to the lack of due diligence by the CMS to care for her welfare and health as this has been raised numerous times with no support whatever from the Board…
To survive this need to stand together and my proposition to Nim is to stand down at the May general meeting for her own health and wellbeing and give it back to the former board.

There follows an email from Ms Vandermensbrugghe to other Board members expressing concern about the First Applicant’s state of health and the allegation that the Respondent lacked ‘due diligence’ in responding to the First Applicant’s health issues. In that email Ms Vandermensbrugghe concluded:
I therefore strongly suggest that Nim and Greg take voluntary leave from the Committee for health reasons, initially for two months….Practicalities can be discussed in the next Committee meeting on 24 April.

The First Applicant responded by email declining the suggestion that she take voluntary leave.
The Complaint states that a meeting of the Executive Committee of the Respondent occurred on 21 April 2015 in the absence of both Applicants, and passed a motion standing them down from their respective offices.

The Complaint then alleges that an Executive Committee meeting occurred later on 21 April 2014 in the absence of the Applicants after which Ms Vandermensbrugghe issued a circular email in which she notified the recipients of the change in office holders and gave as the reason, the First Applicant’s health issues and the conflict between the Applicants and the other members of the Executive Committee.
The Complaint sets out the First Applicant’s email in reply. The email alleges a breach of section 98 of the Human Rights Commission Act 2005 (‘HRC Act’) on the alleged basis of her removal from office without expert evidence of any ‘impairment’ affecting her capacity to discharge her duties.
The First Applicant complained that she had suffered a stress related illness as a result of the dispute with the Board. This had affected her performance as a real estate agent leading to her dismissal from that employment and a loss of profits.
The Second Applicant lodged an essentially identical Complaint with the HRC save that he identified the effect on himself as being derivative from the effects on the First Applicant.
The matters did not resolve before the HRC and the Applicants requested that the matters be referred to the Tribunal in accordance with section 53 of the HRC Act. That referral occurred on 11 September 2014.
There were a series of direction hearings and an unsuccessful conciliation conducted by the Tribunal of both matters. Procedural orders were made for the filing and serving of evidence and Statement of Facts and Contentions (‘SFC’) by the parties.
On 1 October 2014, the Respondent forwarded to the Tribunal a list of its current office holders and a copy of its Constitution.
In the course of the directions hearings the Respondent advised that it intended to take a jurisdiction challenge to the referred applications on the basis that the Respondent was a voluntary body within the meaning of section 31 of the DA such that even the actions by the Respondent of the kind alleged by the Applicants was not a breach of the DA. The Respondent set out its argument in a letter of 29 October 2014 to the Applicants, which was copied to the Tribunal.
On 6 November 2014, the Respondent filed an Application for Interim or Other Orders seeking the dismissal of both applications under section 31 of the DA and section 32 of the ACAT Act with costs.[1] This Interim application was accompanied by a statement of Ms Virobo dated 5 November 2014 with annexures.
There followed a series of email correspondence between the parties and the Tribunal. Part of this email trail involved the Applicants seeking extensions of time to file evidence and their SFC. These extensions were granted.
On 11 November 2014, the Applicants filed their submissions on the section 31 and 32 dismissal applications. Apart from denying various express or implied factual allegations and asserting a lack of evidence to support the Respondent’s allegations, the submission asserted that the Respondent’s Constitution gave it power to ‘raise, borrow, invest, donate, expend, lend or advance funds’ which it was said was sufficient to take the Respondent outside the ambit of section 31 of the DA.
On 19 November 2014, the Respondent advised the Tribunal that it was content to have a ruling on the section 31 DA issue (voluntary body) and leave the remainder of their Interim Application in abeyance for the time being.
On 24 November 2014, the Applicants wrote to the Respondent and the Tribunal seeking clarification of the issues to be determined and complaining about the statement of Ms Virobo.
By letter of 25 November 2014 the Respondents advised that they did not rely upon the statement of Ms Virobo ‘at this stage’.
On 11 December 2014, the General President made procedural orders for the whole of the matter to proceed to a hearing on 18 March 2015 with orders for the filing of various materials. The hearing date was later changed and the time for compliance with the procedural orders was extended.
On 21 January 2015, the Applicants filed a SFC together with a folder of materials with annexures 1-33 which included annexures 10A and 10B.
On 26 February 2015, the Respondent filed another Application for Interim or Other Orders seeking the dismissal of the Applicants’ applications, which enlarged the interim issues to be:
(a)the section 31 issue concerning the voluntary status of the Respondent;
(b)the section 10 issue concerning whether the First Applicant was in an employment relationship with the Respondent; and
(c)the section 68 victimization issue and whether any allegation made by the Applicants was capable of falling within section 68.

On 26 February 2015, the Respondent filed its Submission in support of its new Interim Application. In that Submission the Respondent submitted that:
(a)the Respondent fell within the protection of section 31;
(b)the First Applicant was never in any employment relationship with the Respondent;
(c)no factual allegation had been made that was capable of amounting to victimisation within the meaning of section 68.
The Submission was accompanied by a statement of Giuseppe Parisi dated 26 February 2015 with annexures; a statement from Joelle Vandermensbrugghe dated 27 February 2015 with annexures; and a statement by Gemo Virobo dated 27 February 2015.
On 4 March 2015, the Respondent’s Interim Application was listed for hearing on 1 April 2015.
On 10 March 2015, the Applicants filed an Application for Interim or Other Orders. The application is not easy to follow but it appears to seek orders that:
(a)the Respondent comply with the procedural orders concerning filing of evidence and SFC; and
(b)certain witness statements filed by the Respondent not be admitted into evidence.
The Applicants’ Interim Application was listed for hearing on 1 April 2015 along with the Interim Application of the Respondent.
On 17 March 2015 the Applicants filed their amended SFC. The SFC addressed the issue of the First Applicant’s employment status with the Respondent (section 10 DA issue); the voluntary body issue (section 31 of the DA); and the victimisation issue (section 68(3) of the DA). The SFC was accompanied by a statement of the First Applicant with annexures and a statement by the Second Applicant with annexures.
In relation to the employment status issue, the Applicants pointed to the following:
(a)the previous President of the Respondent had received an honorarium for her unpaid work;
(b)the volume of unpaid work by the First Applicant;
(c)the existence of a Personal Protection (Workplace) Order in favour of the First Applicant by the Magistrates Court; and
(d)various other legislation that contained wide definitions of an employee.
In relation to the disability discrimination claim itself, the First Applicant identified the discriminatory acts as her being stood down from the office of President on 21 April 2014 on the ground of her supposed illness, which she denied existed, and the actions of Ms Vandermensbrugghe in calling for her dismissal from office. The same grounds were identified as the acts of victimisation relied upon.
At the hearing on 1 April 2015, the Applicants appeared in person and Mr Howell of counsel appeared for the Respondent instructed by Colquhoun Murphy, solicitors. The parties agreed that the hearing was to consider their respective Interim applications only.
The Respondent tendered a Submission that was in replacement of that previously filed.
In the matter of the Applicants’ Interim Application, the Tribunal explained that issues of the truthfulness of witness statements and the weight that should be attached to their evidence was a matter for the hearing of the substantive applications and was not relevant to the interim issues to be determined in this hearing. For the purpose of the hearing of the Interim Applications, the Applicants evidence would be taken at its highest and all matters of factual dispute would be assumed in the Applicants’ favour.
The Applicants withdrew their Interim Application leaving only that of the Respondent.
The parties were invited to make such further submissions as they wished.
The Second Applicant identified his complaint as being one that arose from ‘association’ with the First Applicant, i.e. that he had suffered discrimination because of his relationship as the partner of the First Applicant. He accepted that if the First Applicant’s claim for discrimination and victimisation failed then so must his claim.
There was discourse between the counsel for the Respondent and the Tribunal concerning the proper construction of section 31(b) of the DA, namely the words “the provision of benefits, facilities or services to people, whether the people are members of the body or otherwise” (emphasis added) and how the First Respondent being stood down from the office of President came within this wording. Mr Howell submitted that the right to hold office in the Respondent was a ‘benefit’ of membership.
The Tribunal expressed some difficulty with seeing the right to hold office as the kind of ‘benefit’ that the section was aimed at.
The Tribunal raised whether an ejusdem generis approach should be employed to the construction of section 31(b) of the DA. Mr Howell submitted that any genus should be broadly construed to include any right arising from membership including the right to hold office.
There was discourse between the Applicants and the Tribunal concerning whether a President of an incorporated association could at law be an employee of the association. The Applicants did not address this issue of law as put to them, for which no criticism is intended. Rather the Applicants submitted that the honorarium paid to the previous President was evidence of an employment relationship with the previous President that had carried over into the First Applicant’s presidency. There was some discourse on the nature of an honorarium.
The Applicants argued that the Work Place Protection Order made in the First Applicant’s favour in the Magistrates Court amounted to a recognition that the First Applicant was an employee of the Respondent.

At the completion of the hearing the Respondent’s Interim Application was reserved for decision.

JURISDICTION

The Tribunal is a statutory body established by the ACAT Act and has only such jurisdiction and powers as are conferred on it by the legislature. Section 53A of the HRC Act and section 9 of the ACAT Act confer jurisdiction on the Tribunal to hear disputes referred to it by the HRC.

LEGISLATION

Section 7 of the DA defines the attributes in respect of which acts of discrimination apply:
7Grounds
(1)This Act applies to discrimination on the ground of any of the following attributes:
…
(j)disability;
….
(2)In this Act, a reference to an attribute mentioned in subsection (1) includes—
…
(c)such an attribute that a person is presumed to have; and
…
(n)association (whether as a relative or otherwise) with a person identified by reference to an attribute referred to in another paragraph of this subsection;

Section 8 of the DA defines acts of discrimination as follows:
8What constitutes discrimination
(1)For this Act, a person discriminates against another person if—
(a)the person treats or proposes to treat the other person unfavourably because the other person has an attribute referred to in section 7; or
(b)the person imposes or proposes to impose a condition or requirement that has, or is likely to have, the effect of disadvantaging people because they have an attribute referred to in section 7.

Section 10 of the DA prohibits discrimination, as defined in section 8 of the DA, on the basis of an attributed defined in section 7 of the DA, in relation to employment:
10Applicants and employees
(2)It is unlawful for an employer to discriminate against an employee—
…
(b)by denying the employee access, or limiting the employee’s access, to opportunities for promotion, transfer or training or to any other benefit associated with employment; or
(c)by dismissing the employee; or
(d)by subjecting the employee to any other detriment.

‘Employment’ is defined in the Dictionary to the DA as:
employment includes—
(a) work under a contract for services; and
(b) work as a Territory employee; and
(c) work as an unpaid worker.

Section 31 of the DA creates certain exception to Part 3 of the DA in the case of ‘voluntary bodies’:
31Voluntary bodies
Part 3 does not make it unlawful for a voluntary body to discriminate against a person in relation to—
…
(b)the provision of benefits, facilities or services to people, whether the people are members of the body or otherwise.
The Dictionary to the DA relevantly defines a ‘voluntary body’ as follows:
voluntary body means an association or other body (whether incorporated or unincorporated) the activities of which are not engaged in for the purpose of making a profit, but does not include—
…
(c) an association that provides grants, loans, credit or finance to its members.

‘Victimisation’ is defined in section 68 of the DA as follows:
68Victimisation
(1)It is unlawful for a person (the first person) to subject someone else (the other person) to any detriment because—
(a)the other person has—
…
(ii)made a discrimination complaint; or
…
(vi)reasonably asserted any rights that a person (including the other person) has under this Act; or
(vii)claimed that a person has committed an act that is unlawful under this Act; or
(b)the first person believes that the other person proposes to do something mentioned in paragraph (a).
(2)Subsection (1) (a) (vii) does not apply in relation to a claim that is false and is not made honestly.

Section 32 of the ACAT Act contains the power for the Tribunal to summarily dismiss applications:
32Dismissing or striking out applications
(1)This section applies if the tribunal considers that an application, or part of an application is––
(a)frivolous or vexatious; or
(b)lacking in substance; or
(c)otherwise an abuse of process; or
…
(2)The tribunal may, by order, do 1 or more of the following:
(a)refuse to hear the application or part of the application;
(b)dismiss the application or part of the application;

CONSIDERATION OF ISSUES

The issues to be considered are limited to the Respondent’s strike out application.

Section 32 of the ACAT Act

The operation of section 32 has been the subject of consideration by the Tribunal on a number of occasions including Council of the Law Society of ACT & the Legal Practitioner [2011] ACAT 49; Gindy v Chief Minister & ACT Government [2011] ACAT 67.
In the present case, taking the Applicants’ cases at their highest, the contention of the Respondent is that both claims must fail because:
(a)section 31 DA is a complete defence to the claims as made;
(b)no employment relationship exists for the purposes of section 10 of the DA; and
(c)the Applicants have not raised any allegation that is capable of satisfying section 68 DA.

If either (a) or (b) immediately above is shown to be true then the Applicants have no cause of action under the DA and hence their applications lack substance and any hearing of the claims would be a frivolous waste of resources.
If (c) is shown to be true then the victimisation claim is lacking in substance and any hearing would be a frivolous waste of resources.

The section 31 DA issue

The Respondent contended that the Respondent was a voluntary body within the Dictionary definition in the DA. The Applicants denial of this proposition was muted at best. A perusal of the Respondent’s Constitution and its incorporation as an Association leaves the Tribunal in no doubt that the Respondent is a voluntary body for the purposes of section 31 DA.[2]
[2] Khan v Blacktown City Community Radio SWR FM Association Inc [2006] NSWADT 15
On its face section 31 creates an exception to the whole of Part 3 of the DA for ‘voluntary bodies’. It does not limit the exception to the kind of discrimination that has some relevance to the voluntary body, rather, it purports to exempt voluntary bodies for all forms of discrimination defined in Part 3 of the DA. In this sense it is in the same terms as section 57(2) Anti-Discrimination Act 1977 (NSW).
The Applicants raised the issue of whether section 31 should receive a more restricted construction and the presently constituted Tribunal has some sympathy for that view. In its full and literal generality section 31 would permit voluntary bodies to engage in all forms of otherwise unlawful discrimination that had no relevance to the public purpose for which the voluntary body existed.
If section 31 is read literally then it would follow that persons could be denied membership of the Respondent, or a member could be denied the right to stand for office or be removed from office, or a member of the public could be denied a service offered by the Respondent, simply because of their gender, age, sexuality or disability, and such an action by the Respondent would be protected by section 31.
There does not appear to be any public policy reason apparent to the Tribunal why the Legislative Assembly would want to protect a voluntary body concerned with ethnic broadcasting from the implications for discriminatory conduct based on gender, age, sexuality or disability. It is one thing to give the Respondent the right to limit its broadcasting content on ethnic grounds (and thereby exclude non-ethnic broadcasting), it quite another thing to say that the Respondent is free to discriminate against any member, or member of the public, on any grounds it chooses, simply because it is a non-profit voluntary body.
The Tribunal notes that other than NSW, no other jurisdiction affords voluntary bodies such blanket exemptions from discriminatory behaviour. Even the NSW Law Reform Committee in its Report 92 (1999) - Review of the Anti-Discrimination Act 1977 (NSW), did not think the maintenance of this exception was justified and recommended its repeal (6.88). The Commonwealth Disability Discrimination Act 1992 (Cth) (s27) and the Sex Discrimination Act 1984 (s25) both specifically impose liability on voluntary bodies for unlawful discrimination and then provide narrowly targeted exception relevant to the operations of the voluntary body.
If this approach to the construction of section 31 of the DA were adopted in the present case it would only exempt the Respondent from discrimination based on ethnicity in its broadcasting activities.
Although section 31 DA on its face protects or exempts voluntary bodies against all forms of discrimination, it does not purport to exempt all forms of actions of a voluntary body from the constraints of Part 3 DA. For present purposes, the exempt actions are those set out in section 31(b), namely:
‘…in relation to…the provision of benefits, facilities or services to people, whether the people are members of the body or otherwise.’
In the present case there is no suggestion that the Respondent withdrew any right of the Applicants to access the services or facilities of the Respondent, i.e. to engage in ethnic based broadcasting. The only issue is whether being stood down from the office of President is ‘in relation to …the provision of a benefit…’.
The Respondent argued that the introductory words of section 31 (‘in relation to’) were sufficiently broad to encompass a withdrawal of a ‘benefit’ that had hitherto been provided. It was said that the right to stand for the office of President was a right attaching to membership under the Constitution and that the deprivation of office was a deprivation of that right.
The sharp point of the argument is whether the member’s right to stand for office is a ‘benefit’ within the meaning of section 31(b).
In City of Perth v DL (Representing the Members of People Living with AIDS (WA) Inc) (1994) EOC 92-634 at 77380 the WA Equal Opportunity Commissioner saw no real distinction between a ‘service’ and a ‘benefit’. The Commissioner said that:
A person provides a service or services to another ... when the first person does something which provides to the second a benefit or a result which is of assistance to or desired by the second person, whether the benefit or assistance is provided directly or indirectly.
The NSW Law Reform Commission in its Report 92 (1999) – ‘Review of the Anti-Discrimination Act 1977 (NSW)’ thought the term ‘benefit’ in the corresponding NSW legislative context was vague and uninstructive:
On the basis of the above, it is accepted that at least some benefits are now included within the definition of services…The term “benefits” is so vague as to be uninstructive in terms of identifying specific areas which may be covered and neither extends nor gives substance to the present definition. The Commission is not satisfied that the addition of this concept in this area is either necessary or desirable.
Uninstructed by any authority on the point, it appears to the Tribunal that the words ‘benefits, facilities or services’ form a more narrow genus than that proposed by counsel for the Respondent, in the nature of something that the Respondent does, or provides, for or to people who are members of the Respondent or who are just members of the public (i.e. the ethnic broadcasting).
The issue of internal political machinations, including removal from office is dealt with in the Respondent’s Constitution albeit somewhat briefly (clause 15) and is subject to other laws and remedies.
It seems to the presently constituted Tribunal unlikely that the legislature intended the term ‘benefit’ to extend to the internal politics of voluntary bodies.
The present Tribunal has not had the benefit of full argument on the above issues relating to the construction of section 31. Because the present Interim Application can be determined on other grounds, it is not necessary for the Tribunal to come to any final view on the above issues.

The section 10 DA employment issue

Section 10 of the DA uses the terminology of ‘employment’ and ‘employee’. The term ‘employment’ is defined in the Dictionary to the DA in an inclusive manner and not an exhaustive manner. It includes an ‘unpaid worker’.
In the absence of any exhaustive definition or other extended definition in the DA, the term ‘employment’ in section 10 of the DA must take its meaning at common law. Other definitions of ‘employment’ or ‘employees’ in other legislation are not relevant for present purposes.
The ACT Court of Appeal considered the meaning of the term ‘employee’ at common law in Yaraka Holdings Pty Limited v Giljevic [2006] ACTCA 6 and adopted the list of criteria from Abdalla v Viewdaze Pty Ltd (2003) 53 ATR 30. The criteria were developed to distinguish between employees and independent contractors and so have less relevance to the present case.
The President of an incorporated association holds office under the Constitution which has contractual force as between the members of the association.[3] Of and by itself, the office of President is not one of employment.
[3] Section 48 Associations Incorporation Act 1991
The office of President of an association bears some analogy with that of a director of a company. The concept of a ‘working director’ is not unknown in company law or taxation law but to be a ‘working director’ requires that the corporation enter a contract of employment with the director. The mere fact that a director carries out some director’s duties does not of itself make the director an employee.
A contract is a consensual transaction and so requires the intention of both parties to enter that contract. That contract of employment carries with it a range of rights and obligation on both parties to the contract, including for example workers’ compensation rights which would be open to the First Applicant if she were in truth an employee, unpaid or otherwise.
For such a contract to come into existence in the present case it would require that the Executive Committee of the Respondent authorise and enter that contract with the First Applicant. The First Applicant cannot unilaterally appoint herself as an employee. There is no evidence that any such action was ever taken by the Executive Committee and the Respondent explicitly denies the existence of any such contract.
The Respondent has a Policy and Procedures Manual which is in evidence. At paragraph 15 there is an extensive policy concerning the employment of staff. It sets out a merits based process, requiring advertisements, interviews, selection processes and culminating in a written contract of employment that contains a probationary period. The First Applicant does not assert that this Policy was followed in her case.
There is a good reason why the separation of roles between management and employees in associations is usually strictly applied. Associations such as the Respondent receive and expend public funds which raise accountability issues. If the management and employment roles are merged there is an obvious potential for conflicts of interest to arise and for public accountability to fail.
The mere fact that the previous President was paid an honorarium does not of itself lead to any inference that the First Applicant is an employee. Any arrangements made by the Executive Committee with the previous President are contractual in nature and do not create rights in third parties. Further, the payment of a modest honorarium is not of itself consistent with an employment relationship. Honorariums are a common method used to defray out of pocket costs incurred by office holders who are active on behalf of the company. It is not a salary or wage paid to an employee.
The Tribunal is of the view that the First Applicant was never in an employment relationship with the Respondent and therefore section 10 of the DA has no application.

The section 68 DA victimisation issue

The act of victimisation relied upon is the standing down from the office of President.
It is not every act of victimisation that is caught by section 68 of the DA. Section 68 of the DA only catches those actions that answer the following description:
68Victimisation
(1)It is unlawful for a person (the first person) to subject someone else (the other person) to any detriment because—
(a)the other person has—
…
(vi)reasonably asserted any rights that a person (including the other person) has under this Act; or
(vii)claimed that a person has committed an act that is unlawful under this Act; or
(b)the first person believes that the other person proposes to do something mentioned in paragraph (a).

The word ‘because’ in section 68 connotes a causal relationship i.e. the act of victimisation has arisen from one or more of the motivations set out in section 68 of the DA. Victimisation per se is not sufficient.
On the First Applicant’s own case, she was stood down from office for two reasons:
(a)conflict with other Executive Committee members; and
(b)the assertion by the Second Applicant that she was suffering a stress related condition that may end up in a compensation claim (of an undefined kind).

The conflict ground has no relevance to section 68 of the DA at all.
The second of the First Applicant’s asserted cause for the victimisation was her alleged stress condition (which she actually denied) and threat to seek compensation. The Tribunal will assume for present purposes that the stress condition is sufficient to constitute a ‘disability’ within the meaning of section 7 of the DA.
In order to make out a case under section 68, the First Applicant must show that the stand down from office was responsive to:
(a)a complaint under the DA;
(b)the assertion by her of a right under the DA; and
(c)the assertion by her that the Respondent had breached the DA.
At the time of the stand down from office the First Applicant had not make any such assertions and nor does she suggest to the contrary. All that had been asserted (by the Second Applicant) was that:
(a)the First Applicant was suffering stress which had cause financial losses in her private life which may be the subject of an undefined compensation claim; and
(b)the Respondent had lacked due diligence in caring for the First Respondent’s health.
The work related stress was said to arise from the volume of work not from any breach of the DA.
A claim for compensation for work related stress may (or may not) be sound in tort or workers compensation but is not actionable under the DA.
A lack of due diligence by the Respondent for the First Applicant’s health may (or may not) give rise to proceedings in tort or under the Work Health and Safety Act 2011 but it is not actionable under the DA.
Nowhere do the Applicants identify an antecedent breach of the DA as the cause of the subsequent stress condition and being stood down from office. The Applicants’ case is that the act of victimisation and the breach of the DA are one and the same event, namely being stood down from office. It is not alleged that a breach of the DA led to complaint by the Applicants that then led to an act of victimisation by the Respondent.
For this reason the Applicants have not identified any arguably sustainable basis for the victimisation claim.
………………………………..
Mr A. Anforth, Senior Member

HEARING DETAILS

FILE NUMBER:	DT 14/09, DT 14/10
PARTIES, APPLICANT:	Varaporn Osborne, Greg Ranse
PARTIES, RESPONDENT:	Ethnic Broadcasting Council of the Surrounding Districts Incorporated
COUNSEL APPEARING, APPLICANT	N/A
COUNSEL APPEARING, RESPONDENT	Mr Howell
SOLICITORS FOR APPLICANT	Self-Represented
SOLICITORS FOR RESPONDENT	Colquhoun Murphy
TRIBUNAL MEMBERS:	Mr A. Anforth – Senior Member
DATES OF HEARING:	1 April 2015