Simplot Australia Pty Ltd v Human Rights and Equal Opportunity Commission
[1996] FCA 718
•9 AUGUST 1996
CATCHWORDS
Administrative Law - Sex Discrimination - Whether complaint under Sex Discrimination Act 1984 must provide sufficient details of the alleged discrimination to show on its face that it relates to an unlawful act - Whether the Human Rights and Equal Opportunity Commission has jurisdiction or power to hold an inquiry into a complaint which may not relate to an unlawful act but alleges that a person has done an unlawful act - Whether discrimination upon the ground of a failure to contract with a corporation offered or nominated by a woman on ground of her sex can constitute sex discrimination - Whether error of law in Commission not being satisfied that the complaint relates to an act which is not unlawful.
Sex Discrimination Act 1984 (Cth) ss.5, 14(1), 16, 50, 52(2), 52(4), 52(5), 59(1), 79 and 81.
Equal Opportunity Act 1984 (Vic) ss.44(1), 45 and 47.
Nestle Australia Ltd. v. The President and Members of the Equal Opportunity Board [1990] VR 799
Minister for Immigration and Ethnic Affairs v. Wu Shan Liang (1996) 136 ALR 481
VG204/96 SIMPLOT AUSTRALIA PTY. LTD. (Trading as EDGELL-BIRDS EYE) V. COMMISSIONER ROBERT NETTLEFOLD (Constituting the HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION)
MERKEL J.
MELBOURNE
9 AUGUST 1996
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION No. VG 204 of 1996
B E T W E E N:
SIMPLOT AUSTRALIA PTY. LTD.
(Trading as EDGELL-BIRDS EYE)
Applicant
AND:
COMMISSIONER ROBERT NETTLEFOLD
(Constituting the HUMAN RIGHTS AND EQUAL
OPPORTUNITY COMMISSION)
First Respondent
AND:
ANTONIA DI PETTA
Second Respondent
Coram:Merkel J.
Place:Melbourne
Date:9 August 1996
MINUTES OF ORDER
THE COURT ORDERS THAT:
The Application be dismissed.
The applicant pay the taxed costs of the respondents of and incidental to the application.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION No. VG 204 of 1996
B E T W E E N:
SIMPLOT AUSTRALIA PTY. LTD.
(Trading as EDGELL-BIRDS EYE)
Applicant
AND:
COMMISSIONER ROBERT NETTLEFOLD
(Constituting the HUMAN RIGHTS AND EQUAL
OPPORTUNITY COMMISSION)
First Respondent
AND:
ANTONIA DI PETTA
Second Respondent
Coram:Merkel J.
Place:Melbourne
Date:9 August 1996
REASONS FOR JUDGMENT
Introduction
On 2 March 1994 the second respondent Antonia Di Petta ("Di Petta") lodged a complaint pursuant to s.50 of the Sex Discrimination Act 1984 (Cth) ("the Act") alleging that the applicant ("Edgell") had discriminated against her on the ground of her sex.
On 12 March 1995 a delegate of the Sex Discrimination Commissioner, acting pursuant to s.52(2)(a) of the Act, decided not to inquire into the act alleged in the complaint on the ground that she was satisfied that it was not unlawful. As a consequence of Di Petta requiring that the complaint be referred to the Human Rights and Equal Opportunity Commission
("HREOC") pursuant to s.52(4)(a) it was referred to HREOC under s.52(5) of the Act.
Pursuant to s.59(1) of the Act, HREOC was required to hold an inquiry into the complaint or matter referred to it under s.52(5).
Edgell applied to the first respondent, the Commissioner appointed to hold the inquiry ("the Inquiry Commissioner"), for the dismissal of the complaint under s.79 of the Act which provides:
Where, at any stage of a inquiry, the Commission is satisfied that a complaint is frivolous, vexatious, misconceived, lacking in substance or relates to an act that is not unlawful by reason of a provision of Part II, it may dismiss the complaint.
In substance, Edgell contended to the Inquiry Commissioner that:
(a)Di Petta's complaint was that a contract for transportation services had been awarded by Edgell to Di Petta Bros. Transport Pty. Ltd. rather than to Di Petta Transport No. 1 Pty. Ltd. the company nominated or offered by Di Petta;
(b)as a matter of fact and law an allegation of discrimination against Di Petta's company, which can have no gender, is not capable of constituting discrimination on the ground of sex under the Act;
(c)accordingly, the act complained of by Di Petta in her complaint was "not unlawful by reason of a provision of Part II": see s.50 of the Act.
In deciding not to inquire, the delegate of the Sex Discrimination Commissioner accepted Edgell's contentions. However, they were not accepted as determinative of Di Petta's complaint by the Inquiry Commissioner. He dismissed Edgell's application under s.79 of the Act after receiving submissions on behalf of Edgell and Di Petta. Although the submissions included references to the evidence the parties proposed to adduce, the application under s.79 was determined as a preliminary issue prior to the calling of evidence by the parties in support of their respective cases.
Edgell has made application to the Court under the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("The ADJR Act") and s.39B of the Judiciary Act 1903 (Cth) to prohibit the Inquiry Commissioner from further inquiring into the complaint on the ground that the act alleged in the complaint against it was not an unlawful act under the Act. Accordingly, Edgell's counsel submitted that the Inquiry Commissioner had no jurisdiction to inquire or to continue to inquire into the complaint and erred in law in not dismissing it.
The issues
Edgell's submissions require the determination of two issues:
(a)Did the complaint lodged with HREOC under s.50 of the Act confer jurisdiction or power on the Commission to conduct an inquiry into the complaint?
(b)Did the Inquiry Commissioner err in law in declining to exercise his power to dismiss the complaint under s.79 of the Act?
In the event that either question is answered in the affirmative the Court would have to consider whether it should exercise its discretion to prohibit the further conduct of the inquiry by the Inquiry Commissioner.
Did the complaint comply with s.50?
Before me Edgell submitted that:
(a)HREOC had no jurisdiction to hold an inquiry into the complaint as it alleged that Edgell had discriminated against Di Petta's corporation which was not an act which was unlawful under or prohibited by Part II of the Act;
(b)the complaint must set out sufficient details of the alleged act of discrimination so that on its face it raises a question of alleged discrimination of a kind which is unlawful under or prohibited by the Act;
(c)the complaint did not comply with s.50 which required a statement of the allegation and sufficient details of an unlawful act and it was therefore not capable of invoking the jurisdiction or power of HREOC or the Inquiry Commissioner to hold or to continue to hold an inquiry into the complaint.
Edgell relied upon Nestle Australia Ltd. v. The President and Members of the Equal Opportunity Board (1990) VR 805 in which Vincent J prohibited the Board from exercising its jurisdiction to inquire into a matter on the ground that the written complaint related to an act that he determined was not unlawful and therefore did not properly invoke that jurisdiction. In substance, Vincent J accepted the submissions made on behalf of Nestle Australia at 811 that:
before the Equal Opportunity Board can commence to inquire into any matter raised by a complaint before it, the written complaint which invokes its jurisdiction must allege the commission of an act which appears on its face to fall within the ambit of those with which it can deal. For this purpose the written complaint must identify with a sufficient degree of precision the nature of the discrimination alleged so as to enable a determination to be made by the board that its jurisdiction has been properly invoked. According to this argument the board cannot, as it in fact did in the present matter, look at some other statement of particulars of a claim in search of a basis for the assumption of jurisdiction.
Although Vincent J at 812 agreed that a liberal rather than a narrow or unduly restrictive approach should be taken to the construction of the relevant statutory provisions which found jurisdiction in the Board to hold an inquiry into a complaint, he said at 813:
Nevertheless, despite these provisions it is clear that the written complaint, although it is not to be treated as a formal document or pleading, must on its face raise a question of possible discrimination of a kind which will bring the matter within the Board's jurisdiction.
Edgell's counsel submitted that the same principles govern a complaint under s.50 of the Commonwealth Act. In my view the misconception underlying that submission is that the decision of Vincent J which was based on his construction of the provisions of the Equal Opportunity Act 1984 (Vic) ("the Victorian Act"), applies to the Commonwealth Act. The jurisdiction and power of HREOC to exercise its statutory power to hold an inquiry is to be determined on the proper construction of the Commonwealth Act and not by a decision based on the construction of the Victorian Act which had similarities, but also significant differences, to the Commonwealth Act.
At the outset, it is necessary to consider and construe the relevant provisions of the Commonwealth Act.
Section 50(1)(a) provides:
A complaint in writing alleging that a person has done an act that is unlawful by virtue of a provision of Part II may be lodged with the Commission by:
(a)a person aggrieved by the act, on that person's own behalf or on behalf of that person and another person or other persons aggrieved by the act;
Section 50 of the Commonwealth Act does not require that any details of the alleged act be set out in the complaint. The section merely provides for a complaint in writing which alleges that a person has done an act that is unlawful under Part II of the Act. If such an allegation is made in the complaint it will comply with the section. Section 50 may be contrasted with s.44(1) of the Victorian Act which provided for a written complaint "setting out details" of the alleged act of discrimination.
My construction of s.50 is supported by other provisions of the Commonwealth Act, which I set out hereunder, for dealing with a complaint. Those provisions also differ significantly
from their counterparts in the Victorian Act. In particular the provisions recognise that the inquiry being held by the Sex Discrimination Commissioner and HREOC may be into a complaint which relates to an act that is not unlawful. The Act expressly provides that the Commissioner and HREOC may make a decision not to proceed with their inquiry if they decide that it relates to an act that is not unlawful. The important point is that the jurisdiction to make that decision is conferred by the statute on the Commissioner and HREOC, inter alia, in the course of their conduct of the inquiry. It must follow that:
(a)that jurisdiction can be invoked in a case where the complaint does not relate to an unlawful act; and
(b)the invoking of the jurisdiction to inquire or to continue to inquire is not subject to a pre-condition that the complaint relates to an unlawful act.
Section 52(1) provides:
Where -
(a)a complaint relating to an alleged unlawful act is made to the Commission under section 50; or
(b)it appears to the Commission that a person has done an act that is unlawful by virtue of a provision of Part II,
the Commission shall notify the Commissioner accordingly and the Commissioner shall, subject to sub-section (2), inquire into the act and endeavour, by conciliation, to effect a settlement of the matter to which the act relates.
Section 52(2) provides:
The Commissioner may decide not to inquire into an act, or, if the Commissioner has commenced to inquire into an act, decide not to continue to inquire into the act, if -
(a)the Commissioner is satisfied that the act is not unlawful by reason of a provision of Part II;
(b)...
(c)...
(d)in a case where a complaint has been made to the Commission in relation to the act, the Commissioner is of the opinion that the complaint was frivolous, vexatious, misconceived or lacking in substance.
Even if, as occurred in the present case, the Commissioner decides that the act alleged in the complaint is not unlawful the complainant can nevertheless require that the complaint be referred to HREOC for inquiry (ss.52(4), 52(5) and 59). Under s.59 HREOC (which may act through an Inquiry Commissioner under s.60(1)):
"shall hold an inquiry into each complaint or matter referred to it under sub-section 52(5) or 57(1) or section 58".
The obligation on the part of HREOC to hold an inquiry includes the situation where the Sex Discrimination Commissioner or her delegate has decided in the course of their inquiry that the act alleged in the complaint is not unlawful.
Section 59(2) specifies the circumstances (e.g. if the complainant so requests) in which the Commission:
"shall not hold or shall discontinue an inquiry into a complaint or matter referred to it".
The specificity of the legislature's requirements as to the obligation of HREOC to inquire and not to inquire in respect of a complaint or a matter referred to it, supports the conclusion that the jurisdiction and power to inquire can be invoked upon the lodging of a complaint which merely alleges an act is unlawful under the Act, notwithstanding that subsequently it may be determined that the act alleged in the complaint is not unlawful. The power expressly conferred on the Commissioner and HREOC to make that determination in the course of an inquiry makes it clear that that matter cannot be a pre-condition for invoking the jurisdiction or power to inquire.
Section 79 also confirms that construction. That section provides that HREOC (or an Inquiry Commissioner) may at any stage of the inquiry summarily dismiss a complaint, if satisfied, inter alia, that it relates to an act that is not unlawful by reason of a provision of Part II. If HREOC or the Commissioner is not so "satisfied" they must determine the complaint by holding the inquiry and either dismissing the complaint or finding it substantiated and granting appropriate relief: see ss.59 and 81.
Whilst it is correct to contend in the present case that the jurisdiction and power to inquire must be invoked in relation to a complaint lodged under s.50, it does not follow that the complaint must set out the details of the acts complained of to enable the Sex Discrimination Commissioner or HREOC to ascertain whether they have jurisdiction in the matter. The detail of the acts complained of is a matter committed to and ascertainable by them in the course of conducting their respective inquiries.
In those circumstances there is simply nothing in the legislative scheme or purpose which suggests, let alone requires, a more onerous requirement than that which I have found to have been imposed by s.50 in relation to a complaint. Further, the requirement is consistent with the objects of the Act in s.3 by ensuring that access to HREOC is not impeded by formality or other technical processes.
I should add that the counterparts to ss.52 and 79 in the Victorian Act at the time of the complaint in Nestle Australia (ss.45 and 47) did not provide for summary dismissal in the course of an inquiry if the act alleged in the complaint did not relate to an unlawful act. Accordingly under the Victorian Act it was open to argue that there was no need to do so as that was a pre-condition for a valid complaint and for the holding of an inquiry.
For those reasons it is my view that a complaint which alleges that a person has done an act which is unlawful under the Act will comply with s.50 and can invoke the statutory jurisdiction and power to inquire, notwithstanding that the act alleged in the complaint may not in fact or law relate to an unlawful act.
Both as a matter of form and substance the complaint in the present case alleges that Edgell has done an act which is unlawful under the Act. The document is entitled "Complaint Form", specifically alleges sex discrimination by Edgell against Di Petta in the areas of the provision of services and engagement as a contract worker and requests that the complaint proceed under the Act.
The complaint also provides details of the alleged act of unlawful discrimination. Contrary to the submissions of counsel for Edgell, in my view the complaint specifically set out details of alleged discriminatory treatment of the complainant, rather than her company, on the ground of her sex, which would satisfy the criteria for a valid complaint which Vincent J found was required by s.44(1) of the Victorian Act. It was Di Petta's written submissions, rather than her complaint, which raised the issue of discrimination against her company, Di Petta Transport No. 1 Pty. Ltd., rather than against her.
The challenge to the jurisdiction of the Inquiry Commissioner to hold and to continue to hold an inquiry into the complaint fails.
Error of law
In order to understand the submissions on error of law it is necessary to set out the statutory provisions said to have been breached by the alleged discriminatory treatment of awarding the transportation contract to a company other than the one nominated or offered by Di Petta.
At the relevant time s.5 in Part I defined discrimination on the ground of sex as follows:
5(1)For the purposes of this Act a person (in this sub-section referred to as the "discriminator") discriminates against another person (in this sub-section referred to as the "aggrieved person") on the ground of the sex of the aggrieved person if, by reason of:
(a)the sex of the aggrieved person;
(b)a characteristic that appertains generally to persons of the sex of the aggrieved person; or
(c)a characteristic that is generally imputed to persons of the sex of the aggrieved person;
the discriminator treats the aggrieved person less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person of the opposite sex.
For the purposes of this Act a person (in this sub-section referred to as the "discriminator") discriminates against another person (in this sub-section referred to as the "aggrieved person") on the ground of the sex of the aggrieved person if the discriminator requires the aggrieved person to comply with a requirement or condition:
(a)with which a substantially higher proportion of persons of the opposite sex to the aggrieved person comply or are able to comply;
(b)which is not reasonable having regard to the circumstances of the case; and
(c)with which the aggrieved person does not or is not able to comply.
For an act of discrimination as defined in s.5 to be unlawful it must be an act which is prohibited under Part II. Di Petta's case before the Inquiry Commissioner is that Edgell by its discriminatory act under s.5 contravened ss.14(1) and 16 in Part II of the Act.
Section 14(1) provides:
It is unlawful for an employer to discriminate against a person on the ground of the person's sex, marital status or pregnancy:
(a)in the arrangements made for the purpose of determining who should be offered employment;
(b)in determining who should be offered employment; or
(c)in the terms or conditions on which employment is offered.
Section 4(1) defines "employment" to include:
(b)work under a contract for services.
Section 16 provides:
It is unlawful for a principal to discriminate against a contract worker on the ground of a contract worker's sex, marital status or pregnancy:
(a)in the terms or conditions on which the principal allows the contract worker to work;
(b)by not allowing the contract worker to work or continue to work;
(c)by denying the contract worker access, or limiting the contract worker's access, to any benefit associated with the work in respect of which the contract with the employer is made; or
(d)by subjecting the contract worker to any other detriment.
The expression "contract worker" is defined in s.4(1) of the Act as follows:
"Contract worker" means a person who does work for another person pursuant to a contract between the employer of the firstmentioned person and that other person.
The decision in respect of the s.79 application by the Inquiry Commissioner was summarised by him as follows:
The application to dismiss the complaint under s.79 should be dismissed. On the material outlined above, it would be open to the Commission to find at the hearing that the decision to award the contract to a male owned and operated business and to reject the application of the complainant's organisation supported, as it was, by comments arguably wrong in fact and sexist, fall within the definition of "discrimination" in s.5(1) of the Act. The definition would be applied simply on the basis that the aggrieved person was the complainant and not her company. On that basis, the fact that the company does not have a gender is a relevant fact, no doubt, but it is not necessarily a decisive fact. It might be seen as a conduit through which the respondent's discriminatory act flowed to and adversely affected the complainant.
There is a reasonable argument open that the discrimination, if such were the character of the conduct, was unlawful discrimination under s.14(1)(b) of the Act. The work "under a contract for services" with the respondent could be found to fall within the definition of the term "employment" in s.4 and, hence, in s.14(1)(b). On that basis, the term "employment" could be construed as including a contractor under contract for services. On that basis the respondent's alleged discrimination in this case would be caught by the sub-section. No doubt that approach will be supported in argument at the hearing by reference to the undoubted fact that the Act being remedial in character should be "liberally construed".
The complainant seeks to support her case, in addition, by a reliance on s.16. That section, when applied, to this case, gives rise to a difficult question of construction which should be left to be decided at the hearing.
There is a good deal to be said for the view that, in a case like this one, a narrow construction of ss.14 and 16 would be contrary to the intention of Parliament. Whether that principle will take the complainant far enough is an interesting and important question which should provoke a good deal of argument at the hearing. But, bearing in mind that principle, and the other matters mentioned above, the application should fail.
Although the Inquiry Commissioner dismissed Edgell's application under s.79 his decision was that, at that stage of his inquiry, he was not "satisfied" that the complaint related to an act that is not unlawful. He did not make a decision which was final and binding on the parties on any issue of fact and law. The decision leaves open for determination at the conclusion of the inquiry all issues of law and fact.
In those circumstances I doubt if a decision has been made which is a reviewable decision under the ADJR Act in the sense required by the High Court in Australian Broadcasting Tribunal v. Bond (1990) 170 CLR 321. However, it is unnecessary for me to decide that question as I am not satisfied that the applicant has established a reviewable error of law in any event.
It is important that the alleged error related to a failure by the Inquiry Commissioner to be "satisfied", at that stage of his inquiry, that the complaint related to an act that is not unlawful. In Minister for Immigration and Ethnic Affairs v. Wu Shan Liang (1996) 136 ALR 481 the High Court considered the difficulty inherent in reviewing a decision on the ground of error of law when the decision was conditioned upon an
attainment of a state of "satisfaction". At 494 Brennan CJ, Toohey, McHugh and Gummow JJ stated that although such decisions are no longer regarded as unreviewable at common law and are reviewable under the ADJR Act, the subjective nature of the decision was an important element in any such review.
The primary error said to have been made was that it was not open as a matter of law for the hearing Commissioner to determine that the selection by Edgell of one corporation over another for the provision of transport services is capable of constituting an act of discrimination under s.5 on the ground of sex. It was submitted that s.5 requires discrimination against a natural person, rather than a corporation. That submission can be accepted but it is of no avail in the present case.
Whether the act alleged in the present case constituted discrimination against an individual or against a corporation is a question of fact which remains to be determined. Di Petta's complaint is that she was discriminated against in the selection by Edgell of the company which was to perform work under a contract for transportation services. The discrimination alleged by her is that on the grounds of her sex a company other than the company offered or nominated by her was engaged to carry out the required transportation services. In his decision the Inquiry Commissioner was conscious of the distinction between treatment of an
individual and of a corporation and no error of law was made by him in that regard.
Prior to evidence being adduced at the inquiry it was open to the Inquiry Commissioner to determine that at that stage he was not satisfied that the complaint related to an act that was not unlawful. Likewise it was open to him at that stage to decide that he was not satisfied that the provisions of ss.5 and 14(1)(b) or ss.5 and 16 could not apply to the acts alleged by Di Petta.
Edgell's counsel submitted that in his decision the Inquiry Commissioner lifted the corporate veil of Di Petta's company and found that she stood behind it. It was said that that was impermissible under the Act. In my view that is not a fair reading of the decision. As I have already pointed out the Inquiry Commissioner was conscious of the requirement in s.5 that the discriminatory treatment must relate to the complainant rather than to her company. The fact that there is a company involved is, as the Inquiry Commissioner said, "a relevant fact, no doubt, but it is not necessarily a decisive fact".
The Inquiry Commissioner concluded that whether there was discrimination in terms of s.5 against Di Petta, rather than her company, was a question to be determined in the course of his inquiry. No error of law has been established in respect of his decision.
Conclusion
I have found that the applicant has not established any jurisdictional or other reviewable error of law in the present case. Accordingly the application must be dismissed with costs.
I certify that this and the preceding 16 pages are a true copy of the Reasons for Judgment of the Honourable Justice Merkel
Associate:
Date:
Heard: 1.8.96
Place:Melbourne
Judgment:9 August 1996
Appearances: Mr. A. McNab instructed by Sharwood Eyers Wilkie appeared for the applicant.
Mr. P. Riordan instructed by Riordan & Partners appeared for the second respondent.
15