Ward v Stradbroke Ferries Pty Ltd

[2014] QCAT 637

CITATION: Ward v Stradbroke Ferries Pty Ltd [2014] QCAT 637

PARTIES:	Kevin Ward (Applicant)
v
Stradbroke Ferries Pty Ltd (Respondent)

APPLICATION NUMBER: ADL127-13

MATTER TYPE: Anti-discrimination matters

HEARING DATE: 23 September 2014

HEARD AT: Brisbane

DECISION OF: Dr Cullen, Member

DELIVERED ON: 21 November 2014

DELIVERED AT: Brisbane

ORDERS MADE: 1.    The application is dismissed.

CATCHWORDS:

ANTI-DISCRIMINATION – Complaint on basis of attribute of trade union activity in area of work, no evidence to support knowledge of employer of applicant’s trade union activity

Anti-Discrimination Act 1991 (Qld), s 7, s 10

REPRESENTATIVES:

APPLICANT: Kevin Ward represented by Brendan Matthey, solicitor

RESPONDENT: Stradbroke Ferries Pty Ltd represented by Michael Kent, in-house counsel

REASONS FOR DECISION

1. This matter has been referred to the Tribunal by the Anti-Discrimination Commission, as happens with matters that do not resolve in the Commission, and which the Complainant/Applicant wishes to pursue.  Although cast in this nature, this matter is more properly seen as an industrial dispute relating to wages, working conditions and rostering of staff, which should be pursued in the Industrial Relations Commission rather than the Tribunal.

2. The applicant, Mr Kevin Ward, has been employed on a long-term casual basis by the respondent, Stradbroke Ferries Pty Ltd, since April 2008.  He was represented throughout the Tribunal proceedings by a union delegate, Mr Brendan Matthey. Stradbroke Ferries was represented by its in-house legal counsel, Mr Michael Kent.

Complaint on basis of trade union activity

1. Mr Ward alleges that he was discriminated against on the basis of his having the attribute of trade union activity in the area of work. Mr Ward alleges that the discriminatory act was the omission of his name from the fortnightly roster following his election by his peers as a union delegate, at a point in time when enterprise bargaining negotiations were taking place.

2. It is clear that it is unlawful to discriminate in the area of work on the basis of trade union activity, which is one of the attributes contained in s 7 of the Anti-Discrimination Act 1991 (Qld).[1]

   [1]Anti-Discrimination Act 1991 (Qld) s 7(k).

3. Were it the case that Mr Ward was removed from the roster on the basis of trade union activity, it would amount to what is known as direct discrimination under the Act.[2] The Act defines direct discrimination to mean:

   10  Meaning of direct discrimination

   (1)Direct discrimination on the basis of an attribute happens if a person treats, or proposes to treat, a person with an attribute less favourably than another person without the attribute is or would be treated in circumstances that are the same or not materially different.

   Example—

   R refuses to rent a flat to C because—

   •C is English and R doesn’t like English people

   •C’s friend, B, is English and R doesn’t like English people

   •R believes that English people are unreliable tenants.

   [2]Anti-Discrimination Act 1991 (Qld) s 10.

   In each case, R discriminates against C, whether or not R’s belief about C’s or B’s nationality, or the characteristics of people of that nationality, is correct.

   (2)It is not necessary that the person who discriminates considers the treatment is less favourable.

   (3)The person’s motive for discriminating is irrelevant.

   Example—

   R refuses to employ C, who is Chinese, not because R dislikes Chinese people, but because R knows that C would be treated badly by other staff, some of whom are prejudiced against Asian people. R’s conduct amounts to discrimination against C.

   (4)If there are 2 or more reasons why a person treats, or proposes to treat, another person with an attribute less favourably, the person treats the other person less favourably on the basis of the attribute if the attribute is a substantial reason for the treatment.

   (5)In determining whether a person treats, or proposes to treat a person with an impairment less favourably than another person is or would be treated in circumstances that are the same or not materially different, the fact that the person with the impairment may require special services or facilities is irrelevant.

4. In order to establish direct discrimination, Mr Ward needs to demonstrate that, on the balance of probabilities, his employer was aware that he was, in fact, a trade union member. The evidence does not support that conclusion here.

5. In his evidence before the Tribunal, Mr Ward told the Tribunal that he paid his union fees directly to the union, and further gave evidence that Stradbroke Ferries did not deduct his union fees from his pay cheque.

6. There is no evidence that Mr Ward himself (or anybody else) advised Stradbroke Ferries of his status as an elected union official.

7. Further, during his cross-examination, Mr Ward confirmed that he first attended a union meeting on 30 August 2014 – seven days after he learned that his name was not on the roster. In such circumstances, there is no basis upon which Mr Ward can claim that his employer had actual knowledge of his trade union membership.

8. In other words, the only evidence before the Tribunal is to the effect that Stradbroke Ferries first became aware of his union role at the time of a meeting on 30 August, following the alleged discriminatory activity. In order to succeed in this matter, Mr Ward needs to identify that Stradbroke Ferries was aware that he was a trade union official at the time that the roster was released.

9. There must be an identifiable causal link between the protected attribute of being a trade union official and the less favourable treatment, which extends beyond the speculative.

This dispute raises concerns in relation to industrial conditions

1. There are several features present here that suggest that this dispute would more properly be placed within the jurisdiction of the Industrial Relations Commission, rather than QCAT.

2. The Tribunal asked both parties whether it was the case that Mr Ward was a genuinely casual employee, or whether by virtue of the nature of the roster work he performed, on a seemingly ongoing basis, he had become a permanent employee.  There is a body of employment law that suggests a casual employee may, despite being called casual, become permanent if certain conditions are present (routine rostering, inability to control rostering, lack of ability to take leave when desired, etc). 

3. Interestingly, both parties insist that Mr Ward is a casual employee.

4. There is no question that the parties are involved in a negotiation process in relation to a decrease in Stradbroke Ferries’ workforce.

5. This Tribunal does not have any general industrial jurisdiction, and the Tribunal should not be utilised by parties with truly industrial disputes as an alternative home for the ventilating of such matters.

6. The purely speculative nature of Mr Ward’s claim in the anti-discrimination arena suggests that the true genesis of this matter relates to his Union’s concerns in relation to the manner in which the workforce has been downsized, and related matters.

7. Whilst these may well be legitimate concerns in an industrial context, there is no evidence here capable of suggesting a nexus between Mr Ward’s trade union activity and Stradbroke Ferries decision not to roster him. 

Order

1. For the reasons that have been articulated above, Mr Ward’s anti-discrimination application is dismissed.