CITATION: | Australian Rail, Tram and Bus Industry Union of Employees v Aurizon Operations Ltd [2021] QIRC 263 |
PARTIES: | Australian Rail, Tram and Bus Industry Union of Employees, Queensland Branch (Applicant) v Aurizon Operations Limited (Respondent) |
CASE NO: | WHS/2021/113 |
PROCEEDING: | WHS Dispute |
DELIVERED ON: | 30 July 2021 |
HEARING DATE: | 15 July 2021 |
MEMBER: HEARD AT: | O'Connor VP Brisbane |
ORDERS: |
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CATCHWORDS: | INDUSTRIAL LAW – WORK HEALTH AND SAFETY – where notice of dispute pursuant to s 102B of the Work Health and Safety Act 2011 filed – where matter not resolved in conference – whether matter should be referred to arbitration – whether commission should use its discretion to decide not to deal with a dispute pursuant to s 102E of the Work Health and Safety Act 2011 – whether the subject of dispute is misconceived or lacking in substance – dispute referred to arbitration. INDUSTRIAL LAW – where an application for suppression of names of individual workers made – where principle of open justice considered – application granted. |
LEGISLATION: | Anti-Discrimination Act 1991 (Qld), s 139 Equal Opportunity Act 1984 (VIC) Fair Work Act 2009 (Cth), s 183 Industrial Relations Act 2016 (Qld), s 580 Work Health and Safety Act 2011 (Qld), s 102B, s 102C, s 102E Industrial Relations (Tribunals) Rules 2011 (Qld), r 97 |
CASES: | A-G (UK) v Leveller Magazine Ltd [1979] AC 440 Carra v Hamilton (2001) 3 VR 114 Dey v Victorian Railways Commissioners (1949) 78 CLR 62 Dickason v Dickason (1913) 17 CLR 50 Ebber and Another v Human Rights and Equal Opportunity Commission and Others (1995) 129 ALR 455 General Steel Industries Inc v Commissioner for Railways (New South Wales) (1964) 112 CLR 125 Ho v Loneragan [2013] WASCA 20 J v L & A Services Pty Ltd (No 2) [1993] QCA 12; [1995] 2 Qd R 10; 30 ALD 791 John Fairfax Group Pty Ltd v The Local Court of New South Wales (1991) 26 NSWLR 131 John Fairfax & Sons Ltd v Police Tribunal (NSW) (1986) 5 NSWLR 465 Legal Services Commissioner v Ball [2001] NSWADT 86 R v Sussex Justices; Ex parte McCarthy [1924] KB 256 Scott v Scott [1913] AC 417 State Electricity Commission of Victoria v Rabel [1998] 1 VR 102; [1996] VsC 78 Toodayan & Anor v Anti-Discrimination Commissioner Queensland [2018] QCA 349; [2019] 1 QLR 9 Wandin Springs v Wagner [1991] 2 VR 496 |
APPEARANCES: | Ms C. Jones of the Australian Rail, Tram and Bus Industry Union of Employees, Queensland Branch for the Applicant. Mr S. MacNeill of Aurizon Operations Limited for the Respondent. |
Reasons for Decision
1. A female Locomotive Driver was sexually harassed by a fellow male employee in late 2019. 2. The sexual harassment left the woman with a psychological injury. 3. The female employee raised a formal complaint with the employer. 4. The employer washed their hands of the matter as they believed, incorrectly, that the sexual harassment occurred outside of work. 5. The employer has permitted the harasser to move to the same workplace as the victim. 6. The employer has provided the victim a letter which provides directions on how to deal with the harasser's conduct and how to raise a complaint should his behaviour resurface. 7. The employer has a duty to eliminate all risks and hazards in the workplace. [8.] This includes the specific risk and hazard posed by the harasser working in the same workplace as their victim. [9.] The employer is within their powers to move the harasser away from the victim to another workplace. [10.] The employer has refused to eliminate this risk to the female worker.
I confirm the following risk control measures have been implemented by Aurizon to separate you and [Mr B] while at work and to ensure appropriate work-related conduct:
and
Ms A is at serious risk of a relapse of a psychological injury as a result of being exposed to a man who she reported to me that had sexually harassed her 2 years ago. The primary risk arises from being exposed to him in the workplace, and she has explained that this has already occurred. This risk does not only arise as a result of his potential future conduct, but also arises when [she] sees him and is aware of his presence.
Background
On balance, it has been determined that:
As this is not a workplace matter, resolution does not rest with Aurizon to intervene in personal matters unrelated to the workplace. As a result of this finding the allegation is unsubstantiated and no disciplinary action will be taken on this personal matter between yourself and Ms A.
However, Aurizon acknowledges that there is a breakdown of your personal relationship with Ms A and as you are both employed by Aurizon it is appropriate to support a level of separation between yourself and Ms A in the workplace. I have outlined this below in Workplace Expectations.
Workplace Expectations
An employee will not be forced to relocate from their home location to an alternate home location.
Legislative context
102B Notice of dispute may be given to commission
Note—
See also section 71 (5), 82 (2) or 89 in relation to a request by a party that the regulator appoint an inspector to assist in resolving the dispute.
102E Decision not to deal with dispute
Consideration
There is a tension in the Australian law between the view espoused in the Federal Court of Australia as to the meaning of the term “lacking in substance” and the view expressed by the Victorian Court of Appeal. The Federal Court in a number of cases (see, eg, Nagasinghe v. Worthington (1994) 53 FCR 175 at 178 and Ebber v. Human Rights & Equal Opportunity Commission (1995) 129 ALR 455 at 466) has endorsed the statement of Sir Ronald Wilson, sitting in the Human Rights & Equal Opportunity Commission, in GVR v. Department of Health, Housing & Community Services (23 August 1993) that:
"The meaning of the term ‘lacking in substance’ has been considered in a number of decisions of this Commission. My view … is that a claim which presents no more than a remote possibility of merit and which does no more than hint at a just claim would ordinarily be found to be lacking in substance.”
In State Electricity Commissioner v. Rabel (1998) 1 VR 102, the Victorian Court of Appeal declined to accept that formulation of the test and held that to be “lacking in substance” a claim must disclose no arguable case.
The distinction is of such subtlety as to make it unlikely that a choice between one formulation or the other would affect the decision in any but an exceptional case. However that may be, in this case the Tribunal is satisfied that on the three grounds of the information relating to deception and misappropriation no arguable case has been disclosed and the grounds should be struck out as lacking in substance.[2]
A complainant must have, at the outset of the inquiry, sufficient material to show more than a remote possibility of a well-founded claim, if an application for the summary dismissal of the case were to be defeated.[4]
"Frivolous" and "vexatious" are terms which have been known to the courts for many years, forming the primary basis for dismissal in the inherent jurisdiction of the courts and which now may be taken as indicative of "abuse of process", but the terms "misconceived" and "lacking in substance" have not, so far as I am aware, been used in this context before though each expression is commonly used by lawyers, the one connoting a misunderstanding of legal principle and the other connoting an untenable proposition of law or fact. If one may discern, in these provisions, an attempt to express the powers of tribunals in non-technical language, then "misconceived" would represent a claim which did "not disclose a cause of action" (as in para. (1)(a) of r. 23.01), whereas "lacking in substance" might be seen to represent a claim where the defendant could obtain summary judgment,...[6]
In the absence of a proper hearing at which the complainant has an opportunity to call all relevant evidence there can be no satisfactory way of determining that a complaint should be dismissed at a preliminary stage, unless it can be demonstrated, either from the materials by which the complainant has instituted the claim or by reference to facts which would undoubtedly deny the complainant relief, that the complaint is so hopeless that it should be summarily brought to an end. For this purpose I cannot accept that Parliament intended a lesser test than has been imposed by the courts, nor can I accept that the power to dismiss should be exercised upon the basis that the claim "presents no more than a remote possibility of merit", if that expression means anything other than that the complainant has no reasonable prospect of success. At a preliminary stage there is simply no argument that some lesser form of insubstantiality can be relied upon to terminate a complaint. With respect, some form of "curate's egg" test cannot be considered acceptable, if it is to be applied before a hearing gets under way. The complaint is either wholly bad, that is undoubtedly shown to be hopeless, or it must be allowed to proceed to an ordinary tribunal hearing. Whatever test may be acceptable at other stages of the administrative process or during the conduct of an ordinary tribunal hearing, a complaint cannot be dismissed under [the equivalent of s 102] unless it is clear beyond doubt that the complaint is lacking in substance, that is, that the complainant has no arguable case which should be allowed to be resolved at a full hearing.
The test to be applied has been variously expressed; "so obviously untenable that it cannot possibly succeed"; "manifestly groundless"; "so manifestly faulty that it does not admit of argument"; "discloses a case which the Court is satisfied cannot succeed"; "under no possibility can there be a good cause of action"; "be manifest that to allow them" (the pleadings) "to stand would involve useless expense".
At times the test has been put as high as saying that the case must be so plain and obvious that the court can say at once that the statement of claim, even if proved, cannot succeed; or "so manifest on the view of the pleadings, merely reading through them, that it is a case that does not admit of reasonable argument"; "so to speak apparent at a glance.[8]
A case must be very clear indeed to justify the summary intervention of the court to prevent a plaintiff submitting his case for determination in the appointed manner by the court with or without a jury. The fact that a transaction is intricate may not disentitle the court to examine a cause of action alleged to grow out of it for the purpose of seeing whether the proceeding amounts to an abuse of process or is vexatious. But once it appears that there is a real question to be determined whether of fact or law and that the rights of the parties depend upon it, then it is not competent for the court to dismiss the action as frivolous and vexatious and an abuse of process.[10]
The nature of the commissioner’s task under s 139(b) is informed by these statutory features as well as the protective purpose of the legislation. A complaint cannot be expected to “allege the relevant facts with the particularity of an indictment or of a pleading”. Nor should it be assumed that the details supplied are comprehensive or that they aspire to do any more than indicate what is intended to later be proved to establish the complaint. Thus, when forming an opinion under that provision, the question for the commissioner is whether the details provided in and with the complaint, if proved at a hearing of the tribunal, are indicative of a contravention that is neither misconceived nor lacking in substance. A complaint will be “misconceived” if it is based on a false conception or notion such as an allegation of discrimination on the basis of an attribute that is not protected by the ADA and “lacking in substance” where the detail provided in the complaint fails to point to conduct on the part of the named respondent that is capable, if proved, of amounting to a contravention under the ADA. Obviously, because rejection will deprive the complainant of a hearing, it must clearly appear that the complaint is misconceived or lacking in substance before the requisite opinion may reasonably be formed.[12]
Obviously, because rejection will deprive the complainant of a hearing, it must clearly appear that the complaint is misconceived or lacking in substance before the requisite opinion may reasonably be formed.[13]
Application to anonymise parts of the decision
97 Publishing decisions etc.
Note—
For other documents the registrar must publish on the QIRC website, see sections 160, 161, 215, 230 and 459 of the Act.
Conclusion
Orders
[1] [2001] NSWADT 86.
[2] Ibid, [25] – [27].
[3] (1995) 129 ALR 455.
[4] Ibid, 455.
[5] [1998] 1 VR 102; [1996] VsC 78.
[6] [1998] 1 VR 102, 108-109; [1996] VsC 78, [8].
[7] (1964) 112 CLR 125.
[8] General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125, 129.
[9] (1949) 78 CLR 62.
[10] Ibid.
[11] [2018] QCA 349; [2019] 1 QLR 9.
[12] Ibid, [42].
[13] [2018] QCA 349, [42].
[14] R v Sussex Justices; Ex parte McCarthy [1924] KB 256, [259].
[15] Chief Justice James Spigelman, ‘Seen to Be Done: The Principle of Open Justice’ (Pt I) (2000) 74 Australian Law Journal 290, 292.
[16] Scott v Scott [1913] AC 417, 434–5; Dickason v Dickason (1913) 17 CLR 50, 51; John Fairfax & Sons Ltd v Police Tribunal (NSW) (1986) 5 NSWLR 465, 476–7.
[17] Wandin Springs v Wagner [1991] 2 VR 496; Carra v Hamilton (2001) 3 VR 114, 122; Ho v Loneragan [2013] WASCA 20.
[18] A-G (UK) v Leveller Magazine Ltd [1979] AC 440, 450.
[19] (1991) 26 NSWLR 131, 161.
[20] [1993] QCA 12; [1995] 2 Qd R 10; 30 ALD 791
[21] Ibid, 49.
