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  4. Anters v JM Group Holdings Pty Ltd (No. 2) - [2023] QIRC 131

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Anters v JM Group Holdings Pty Ltd (No. 2)[2023] QIRC 131

Anters v JM Group Holdings Pty Ltd (No. 2)[2023] QIRC 131

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Anters v JM Group Holdings Pty Ltd & Anor (No. 2) [2023] QIRC 131

PARTIES:

Anters, Dawn

(Complainant)

v

JM Group Holdings Pty Ltd

(First Respondent)

and

Sharpe, Virginia

(Second Respondent)

CASE NO:

AD/2021/39

PROCEEDING:

Referral of Complaint

DELIVERED ON:

19 May 2023

HEARING DATES:

10 November 2022 (Hearing)

16 January 2023 (Complainant written closing submissions)

10 February 2023 (Respondents written closing submissions)

MEMBER:

McLennan IC

HEARD AT:

Cairns

ORDERS:

  1. 1.The complaint is dismissed.
  2. 2.I will hear the parties as to costs.

CATCHWORDS:

HUMAN RIGHTS – DISCRIMINATION – REFERRAL OF COMPLAINT – whether respondents made unlawful requests for information – whether in not providing a copy of his passport the complainant refused to do an act that would amount to a contravention of the Anti-Discrimination Act 1991 – whether victimisation occurred – where no breach of the Anti-Discrimination Act 1991 occurred – where no victimisation occurred

LEGISLATION & OTHER INSTRUMENTS:

Anti-Discrimination Act 1991 (Qld) s 7, s 124, s 129, s 130, s 133, s 136, s 141, s 166

Competition and Consumer Act 2010 (Cth) sch 2

Industrial Relations Act 2016 (Qld) sch 2

Migration Act 1958 (Cth) s 245AE

Explanatory Memorandum, Migration Amendment (Employer Sanction) Bill 2006 (Cth)

CASES:

Anters v JM Group Holdings Pty Ltd & Anor [2022] QIRC 382

Briginshaw v Briginshaw (1938) 60 CLR 336

Carlton v Blackwood [2017] ICQ 001

Commonwealth v Humphries (1998) 86 FCR 324

Willmott v Woolworths Ltd [2014] QCAT 601

APPEARANCES:

Mr D Anters, the complainant in person.

Mr C Ryall of counsel, instructed by Mr J Hayward  of WGC Lawyers for the First and Second Respondents. 

Reasons for Decision

  1. [1]
    Mr Dawn Anters (the Complainant) was born and raised in India.[1]
  1. [2]
    The Complainant has plead 'Indian' as his 'race',[2] specifically referring to his "ethnic background", "Indian descent", "distinct accent and brown skin."[3]  Mr Anters' 'Indian' race is not disputed.[4]
  1. [3]
    In 2019, the Complainant had graduated from university with four degrees - Bachelor of Commerce, Bachelor of Arts, Bachelor of Laws and a Bachelor of Psychological Science - and had "also completed legal training and a master's degree in legal practice, with distinction, to become an Australian Lawyer."[5]
  1. [4]
    In September 2020, the Complainant responded to an advertisement placed by JM Group Holdings Pty Ltd (the First Respondent) which sought expressions of interest from lawyers to work in Far North Queensland.[6]
  1. [5]
    The Complainant alleges the First Respondent made unlawful requests for information in that he was asked:
  • to provide a copy of his passport or birth certificate before a telephone appointment with the First Respondent's Recruitment Manager, Ms Virginia Sharpe (the Second Respondent);
  • his date of birth (an optional question); and
  • to indicate whether he is an Australian Citizen and to provide proof (e.g., Australian Passport, Full Australian Birth Certificate, Australian Citizenship Certificate or Certificate of Evidence of Citizenship).[7]
  1. [6]
    The Complainant stated that he was "highly offended" and "intimidated" by the questions.[8]
  1. [7]
    In light of those allegations, the Complainant contends:
  • the Respondents made three unlawful requests for information within the meaning of s 124 of the Anti-Discrimination Act 1991 (Qld) (the AD Act);
  • that by not providing the Respondents with a copy of his passport when it was not required, the Complainant refused to do an act that would amount to a contravention of the AD Act within the meaning of s 130(1)(a)(i); and
  • to the detriment of the Complainant, the Respondents refused to consider him for any opportunities while he was unemployed and actively looking for work - this constitutes victimisation under s 129 of the AD Act.[9]
  1. [8]
    The Respondents have strenuously denied the Complainant's allegations.

Claim details

  1. [9]
    Mr Anters filed a complaint in the Queensland Human Rights Commission (QHRC) on 31 December 2020.  The Complainant alleged that he had been asked unnecessary questions about the protected attributes of 'race' and 'age' and victimised, in the course of applying for work.
  1. [10]
    The QHRC accepted the complaint pursuant to ss 136 and 141 of the AD Act.
  1. [11]
    An unsuccessful conciliation before the QHRC resulted in this matter being referred to the Queensland Industrial Relations Commission (the Commission) on 24 August 2021, pursuant to s 166(1)(a) of the AD Act.
  1. [12]
    The Referral Notice from the QHRC relevantly states that the complaint "relates to or includes work or the work-related area" and was treated as alleging:

Unlawful requests for information - Section 124.

Victimisation - Sections 129, 130.

  1. [13]
    It is not disputed that the Commission has jurisdiction to hear and decide Mr Anters' complaint.

Questions to be decided

  1. [14]
    During a Mention on 13 April 2022 and based on the materials filed as at that date, I indicated, and the parties agreed, that the questions to be decided in the hearing of this matter are:
  • whether or not the Respondent(s) made an unlawful request(s) for information, under s 124 of the AD Act? That is, did the Respondent(s) ask the Complainant to supply information on which unlawful discrimination might be based?
  • whether or not victimisation occurred within the meaning of s 130(1) of the AD Act? Also, what particular part of s 130(1) is alleged to have been breached by the Respondent(s) in this case?
  • in the event that one or both questions above are resolved in favour of the Complainant, whether or not the First Respondent is vicariously liable for the actions of the Second Respondent?
  • in the event of any findings in favour of the Complainant - what relief is appropriate?

What legal tests must be satisfied for the Complainant's claim to succeed?

  1. [15]
    Part 2 of chp 2 of the AD Act identifies "Prohibited grounds of discrimination".  Section 7 prohibits discrimination on the basis of various defined "attributes", including the attributes in s 7(g) of "race" and s 7(f) of "age". 
  1. [16]
    Part 4 of chp 2 of the AD Act identifies "Areas of activity in which discrimination is prohibited".  The areas of activity are set out in div 2 through to div 11.
  1. [17]
    Division 2 of pt 4 deals with "Work and work related areas". Section 14 identifies types of discrimination in the pre-work area. 

Unlawful requests for information

  1. [18]
    The Complainant alleged that the Respondents made three unlawful requests for information within the meaning of s 124 of the AD Act, which provides:

124Unnecessary information

  1. (1)
    A person must not ask another person, either orally or in writing, to supply information on which unlawful discrimination might be based.
  2. (2)
    Subsection (1) does not apply to a request that is necessary to comply with, or is specifically authorised by—
  1. (a)
    an existing provision of another Act; or
  2. (b)
    an order of a court; or
  3. (c)
    an existing provision of an order or award of a court or tribunal having power to fix minimum wages and other terms of employment; or
  4. (d)
    an existing provision of an industrial agreement under the repealed Industrial Relations Act 1999; or
  5. (e)
    an order of QCAT or the industrial relations commission.
  1. (3)
    It is a defence to a proceeding for a contravention of subsection (1) if the respondent proves, on the balance of probabilities, that the information was reasonably required for a purpose that did not involve discrimination.
  2. (4)
    In this section—

existing provision means a provision in existence at the commencement of this section.

Example—

An employer would contravene the Act by asking applicants for all jobs whether they have any impairments, but may ask applicants for a job involving heavy lifting whether they have any physical condition that indicates they should not do that work.

Victimisation

  1. [19]
    The Complainant alleged that by not providing the Respondents with a copy of his passport when it was not required, he refused to do an act that would amount to a contravention of the AD Act within the meaning of s 130(1)(a)(i), which provides:

130Meaning of victimisation

  1. (1)
    Victimisation happens if a person (the respondent) does an act, or threatens to do an act, to the detriment of another person (the complainant)—
  1. (a)
    because the complainant, or a person associated with, or related to, the complainant—
  1. (i)
    refused to do an act that would amount to a contravention of the Act; or
  2. (ii)
    in good faith, alleged, or intends to allege that a person committed an act that would amount to a contravention of the Act; or
  3. (iii)
    is, has been, or intends to be, involved in a proceeding under the Act against any person; or
  1. (b)
    because the respondent believes that the complainant, or a person associated with, or related to, the complainant is doing, has done, or intends to do one of the things mentioned in paragraph (a)(i), (ii) or (iii).
  1. (2)
    In this section, a reference to involvement in a proceeding under the Act includes—
  1. (a)
    making a complaint under the Act and continuing with the complaint, whether by investigation, conciliation, hearing or otherwise; and
  2. (b)
    involvement in a prosecution for an offence against the Act; and
  3. (c)
    supplying information and producing documents to a person who is performing a function under the Act; and
  4. (d)
    appearing as a witness in a proceeding under the Act.
  1. [20]
    The Complainant alleged that the Respondents refused to consider him for any opportunities while he was unemployed and actively looking for work, to his detriment - and that this constitutes victimisation under s 129 of the AD Act:

129Victimisation

A person must not victimise another person.

…

Vicarious Liability

  1. [21]
    In the event that I were to decide either of the above in favour of the Complainant, I would then proceed to consider whether or not the First Respondent is vicariously liable for any conduct of the Second Respondent, pursuant to s 133 of the AD Act:

133Vicarious liability

  1. (1)
    If any of a person's workers or agents contravenes the Act in the course of work or while acting as agent, both the person and the worker or agent, as the case may be, are jointly and severally civilly liable for the contravention, and a proceeding under the Act may be taken against either or both.
  2. (2)
    It is a defence to a proceeding for a contravention of the Act arising under subsection (1) if the respondent proves, on the balance of probabilities, that the respondent took reasonable steps to prevent the worker or agent contravening the Act.

Standard of Proof

  1. [22]
    The standard of evidence is summarised in Briginshaw v Briginshaw, where the High Court stated that:

Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal.[10]

Remedy sought by the Complainant

  1. [23]
    At the time of filing in the Queensland Human Rights Commission (QHRC) on 31 December 2020, the Complainant proposed that the Respondents pay him a total of $13,950 plus interest to settle his complaint.
  1. [24]
    By 18 November 2021, the sum proposed by the Complainant to settle his complaint had climbed to $115,100 plus interest.[11]

Summary of Findings

  1. [25]
    I find that no breach of s 124 of the AD Act occurred.
  1. [26]
    I find that no victimisation occurred, within the meaning of s 130 of the AD Act.
  1. [27]
    My reasons follow.

Witnesses

  1. [28]
    There were two witnesses for the Complainant's case:
  • Mr Dawn Anters (the Complainant himself).

I was not impressed with Mr Anters as a witness.  His evidence meandered along a chronicle of assorted disappointments in life, many only tangentially related (if at all) to the Respondents. 

I further note that whilst Mr Anters told me at the Mention on 13 April 2022[12] that "I have never contemplated proceedings such as this in my life before…"  That simply cannot be true because some months earlier, on 16 December 2021, the Respondents[13] submitted to me a list of the following claims initiated by Mr Anters, including one in this Commission:

  1. i)
    Federal Court matter - DAWN ANTERS v OAKBRIDGE LAWYERS PTY LTD  ADG286/2020 (where it appears that the Complainant did not attend at the hearing and the court dismissed the claim);
  2. ii)
    Federal Court matter - DAWN ANTERS v OAKBRIDGE LAWYERS PTY LTD  ADG17/2021 (where it appears that the Court dismissed the Complainant's claim following a hearing); and
  3. iii)
    Queensland Industrial Relations Commission matter - ANTERS, DAWN v MCINNES WILSON LAWYERS AND OTHERS B/2021/81.[14]

At best, Mr Anters may just be Australia's unluckiest job applicant - at worst, though, his string of complaints may be viewed as a contrivance to extract compensation from Respondents.  A strategy that may have met with some success to date, in light of the disclosure that the Complainant "has received $4,500 towards settling a complaint in 2021."[15]

Currently "working for the government",[16] Mr Anters is certainly on track to establishing himself to be somewhat of a serial pest at the very least.

To the extent that Mr Anters' evidence differed from the Respondents' witnesses, I have preferred theirs.

  • Mr Arun Rajan (friend and former colleague of the Complainant).[17]

The evidence of Mr Rajan had no bearing whatsoever on the questions to be determined in this Hearing.  In his view, Mr Anters was "a very good friend" and "a very nice person".[18]  However, with respect to any knowledge of the relevant matters, the evidence was:

Mr Anters: But have you ever sought work through CBC Staff Selection, Ms Virginia Sharpe in particular?

Mr Rajan: I applied a long time ago, but I don't remember.  I - because most of the job applied for were through Seek, and there were, like - sometimes the recruiters provide the name there.  Some didn't; there is no name at all.  But I don't remember that particular - this company name.[19]

…

Mr Anters: …So the evidence you've given is not particular to the respondents in this matter; is that right?

Mr Rajan: No.  No.  It's a general - yeah.[20]

  1. [29]
    There were two witnesses for the Respondents' case:
  • Mrs Sally Mlikota (Recruitment Director, CBC Staff Selection and Director, JM Group Holdings Pty Ltd);[21] and
  • Ms Virginia Sharpe (Recruitment Manager, CBC Staff Selection and the Second Respondent herself).

I was impressed by the evidence of both Mrs Mlikota and Ms Sharpe.  Their vast industry knowledge and experience was evident - and, as witnesses, their responses were clear, direct, reasonable and on-point. 

Evidence and submissions

  1. [30]
    Written closing submissions were directed in the order Complainant - Respondents - Complainant (in reply, on issues of law only).
  1. [31]
    The Complainant's written closing submissions were filed on 16 January 2023.
  1. [32]
    The Respondents' written closing submissions were filed on 10 February 2023.
  1. [33]
    No further submissions were received from the Complainant in response.
  1. [34]
    The evidence of the four witnesses and two Exhibits tendered at the Hearing, together with the written closing submissions of the parties and their Statements of Facts and Contentions, were considered in this Decision.  I have determined not to approach the writing of this Decision by summarising the entirety of the evidence provided and submissions made, but will instead refer to the parties' positions in my consideration of each question to be decided.

Complainant's allegations

Allegation 1 - Unnecessary information

  1. [35]
    The Complainant alleges that during a telephone interview with the Second Respondent on 21 September 2020, the Second Respondent asked the Complainant whether he is an Australian citizen "after listening to the Complainant's distinct accent".[22] The Complainant alleges the Second Respondent concluded the interview by stating words to the effect that at present the First Respondent "does not have any roles for the Complainant, but law firms in the FNQ are always in need of lawyers to work in family and employment law matters for which his background and experience will be a good fit."[23]

Allegation 2 - Unnecessary information

  1. [36]
    On 25 September 2020, an officer of the First Respondent emailed the Complainant stating that "by law [CBC Staff is] required to sight [the Complainant's] passport, Australian Birth Certificate or Australian Citizenship Certificate as confirmation of [his] eligibility to work in Australia".[24] In response, the Complainant alleges he provided an undertaking that he is an Australian Citizen and although he disputed that the First Respondent is required to sight his passport prior to commencement of employment, he advised he would provide a copy of his passport in due course.[25]

Allegation 3 - Unnecessary information

  1. [37]
    On 30 September 2020, the Second Respondent allegedly advised that "due to [CBC Staff's] quality accreditation requirements [she is] not able to search for roles [for the Complainant], unless [she has] confirmed that [the Complainant has] full working rights in Australia" and again requested a copy of the Complainant's passport or birth certificate.[26]

Allegation 4 - Victimisation

  1. [38]
    On 7 October 2020, the Complainant allegedly responded to the Second Respondent's email raising concerns about revealing sensitive information that could potentially lead to unconscious bias, emphasised the undertaking he had given, asked for details about the Respondent's accreditation requirements and requested they consider him for any potential job opportunities based on the information he had provided.[27]
  1. [39]
    On 22 October 2020, the Second Respondent allegedly responded by stating that "the job market is slow at the moment, business are struggling, [and] there are limited travel opportunities for new people to enter Cairns" and that they would contact the Complainant "if a role becomes available".[28]
  1. [40]
    The Complainant alleges that the First Respondent readvertised "the same positions" in October, November and December 2020 as well as multiple times throughout 2021 but did not consider nor contact the Complainant with respect to the opportunities.[29]

Summary of the parties' positions

  1. [41]
    The Complainant submitted that:
  • he applied for the position in 2020;
  • the Complainant gave an undertaking that he is an Australian Citizen, has full work rights in Australia and would provide a copy of his passport in due course;
  • despite the undertaking, the First Respondent continued to readvertise the same position multiple times without considering the Complainant;
  • the Complainant alleges the Respondents ignored the Complainant for any employment opportunities after he raised the issue of "unlawful requests for information" and then proceeded to consider and recruit other "Junior Lawyers";
  • "if there is any genuine basis for ignoring the Complainant indefinitely for any employment opportunities, that basis for ignoring will ideally be of a matter of viva voce examination at the hearing. As this ignorance by the Respondents occurred in the past two years, it is unlikely that the Respondents will recall the reasons for, or basis upon, which they have recruited other candidates whilst ignoring the Complainant";
  • "The Respondents, to the detriment of the Complainant, refused to consider him for any of the opportunities thereafter while he was unemployed and very actively looking for work" because the Complainant had not provided "the Respondents with a copy of his passport while it was not required";[30]
  • "In accordance with the ratio of Willmott v Woolworths Ltd (Willmott), the right approach to seeking information regarding the Complainant's right to work in Australia was asking him to nominate the basis upon which he has a right to work in Australia.  The Complainant confirmed his work rights not only by completing the form but also through an undertaking.  Therefore, the three requests by the Respondents were 'unlawful requests for information' within the meaning of s 124 of the Anti-Discrimination Act 1991 (Qld) (AD Act)";[31] and
  • "Considering the Complainant's qualifications and prior experience in the FNQ region, he would have gained employment, if not earlier, by January 2021 had the Respondents acted without seeking a copy of his passport or birth certificate.  The Respondents' persistent requests, even after the Complainant had notified them that there is not any legal requirement for them to obtain his passport or birth certificate before making an offer of employment, indicate that the Respondents desired to depend on the sensitive information in these documents to decide whether to consider him for any employment opportunities."[32]
  1. [42]
    The Respondent submitted that:
  • the First Respondent placed an advertisement on Seek which stated "Expression of Interest - Lawyers," explaining that "the Complainant has incorrectly referred to advertising a "position" or "positions" when the First Respondent has not done so and instead advertised only for an "expression of interest" in a variety of roles";[33]
  • the Respondents did not ask for personal information from the Complainant at the application stage.  Only at a later stage and when the Complainant was invited to attend an interview that he was asked to provide proof of his right to work in Australia;[34]
  • the First Respondent asked the Complainant for either:
  • an authority to obtain details of work rights status (if the Complainant was not an Australian citizen); or
  • a scanned copy of the Complainant's passport or Australian Birth Certificate (if the Complainant was an Australian citizen).[35]
  • the request for this information was to ensure that the Complainant was eligible to work in Australia - and that such a request is for a lawful purpose that did not involve discrimination.  Further, that the information was reasonably required for a purpose that did not involve discrimination;[36]
  • as a matter of law, the First Respondent, as an agent of an applicant or otherwise, must take reasonable care not to mislead or deceive a potential employer that an applicant is eligible to work in Australia;
  • the Respondents say that this matter is not analogous to Willmott for a variety of reasons, including because that earlier case relates to the acts of an employer and not to the acts of a recruitment agency.  The significance of that difference is that the obligations on recruitment agencies under the Migration Act 1958 are more stringent in that inquiries are required to be made earlier;[37] and
  • the Respondents deny that either or both have victimised the Complainant as alleged or at all.  The Respondents did not refuse to assist him, did not threaten him, nor refuse to assist him where possible.  Rather, the Second Respondent confirmed to the Complainant in writing that "If a role becomes available that suits your experience then we will make contact with you."[38]

Consideration

Whether or not the Respondent(s) made an unlawful request(s) for information, under s 124 of the AD Act?

  1. [43]
    This particular question has three distinct elements, as considered below.

Did the Respondent(s) ask the Complainant to supply information on which unlawful discrimination might be based? 

If so, was the request necessary to comply with, or is specifically authorised by an existing provision of another Act?

If so, has the Respondent(s) proved, on the balance of probabilities, that the information was reasonably required for a purpose that did not involve discrimination?

  1. [44]
    Determining those matters requires me to first establish the facts of the treatment received.[39] 
  1. [45]
    It is not in dispute that the First Respondent's Registration Form asks applicants for:
  • an authority to obtain details of work rights status (if an applicant is not an Australian citizen); or
  • a scanned copy of the applicant's passport or Australian Birth Certificate (if an applicant is an Australian citizen).[40]
  1. [46]
    It is clear that provision of the documents in [45] above would reveal either or both of an applicant's 'race' and 'age' - protected attributes under the AD Act.
  1. [47]
    The Respondents do not dispute that there are two email exchanges in evidence, which shows the Complainant "was asked for certain information prior to an interview".  However, the Respondents assert that when the Complainant declined to do so, the matter was not further pressed by the Respondents.[41]
  1. [48]
    I find that the Respondents did ask the Complainant to supply information on which unlawful discrimination might be based.
  1. [49]
    It then follows that I consider the reason 'why' the Complainant was asked to supply such information.
  1. [50]
    It is not in dispute that there was no 'vacant position' at the time the Complainant responded to the "Expression of Interest - Lawyers" advertisement.[42] 

Respondents' position

  1. [51]
    The Respondents asserted that the information requested was:
  • necessary to comply with an existing provision of another Act;[43] and
  • reasonably required for a purpose that did not involve discrimination.[44]
  1. [52]
    The Respondents argued that s 245AE of the "…Migration Act 1958 expressly requires recruitment agencies and professionals…to verify that a prospective worker can work in Australia before referring that prospective worker"[45] to a potential employer.  "The recruitment agency is required to take "reasonable steps" to verify that person is eligible to work.  This should be done at reasonable times before the referral."[46] 
  1. [53]
    The relevant section provides that (emphasis added):

Section 245AE   Referring an unlawful non-citizen for work

  1. (1)
    A person (the first person) contravenes this subsection if:
  1. (a)
    the first person operates a service, whether for reward or otherwise, referring other persons to third persons for work; and
  2. (b)
    the first person refers another person (the prospective worker) to a third person for work; and
  3. (c)
    at the time of the referral, the prospective worker is an unlawful non-citizen.
  1. (2)
    Subsection (1) does not apply if the first person takes reasonable steps at reasonable times before the referral to verify that the prospective worker is not an unlawful non-citizen, including (but not limited to) either of the following steps:
  1. (a)
    using a computer system prescribed by the regulations to verify that matter;
  2. (b)
    doing any one or more things prescribed by the regulations.

…

  1. [54]
    That provision means that the Respondents can only avoid liability if they can demonstrate that they took reasonable steps at reasonable times before the referral to verify the prospective employee's right to work. 
  1. [55]
    The Respondents state that they have, in good faith, followed what they believed to be appropriate industry practice and government advice, including the Australian Government's Department of Home Affairs website which states:[47]

You must check that you are employing someone who can legally work in Australia.

Step 1 - See if the person is an Australian citizen, Australian permanent resident or a New Zealand citizen.

Ask for one of these documents to prove that eligibility:

Australian or New Zealand passport

Australian birth certificate and photo identification

With this proof, these people can work without restrictions in Australia in line with Australian employment law.

  1. [56]
    Further, the Respondents contend that "the First Respondent, as an agent…or otherwise, must take reasonable care not to mislead or deceive a potential employer that an applicant is eligible to work in Australia"[48] - and cite the following provision in support:

Section 18Misleading or deceptive conduct

  1. (1)
    A person must not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive.[49]
  1. [57]
    In conclusion, the Respondents have explained that they "were simply attempting to take reasonable steps at reasonable times before a referral to ensure that the Applicant could work in Australia".  The Respondents added that the request for information from the Complainant "was necessary for the Respondents to ensure that they were not engaging in misleading or deceptive conduct by representing to any potential employer that the [Complainant] was eligible to work in Australia if that was not, in fact, the case."  Therefore, they contend that the request for information from the Complainant was "patently necessary and lawful."[50]

Complainant's position

  1. [58]
    The Complainant submitted that the Respondents' construction of s 245AE of the Migration Act 1958 (Cth) is misconceived, instead arguing that:

Contrary to the construction advanced by the Respondents, this section does not require recruitment agencies to verify that a prospective worker can work in Australia before referring that prospective worker to be considered for employment or for a job interview.  However, if a person (the first person), including a recruitment agent, deploys another person to work for a third person, then before the commencement of the work, the first person must ensure that the person referred to work (worker) by the first person is not illegal (that is, the worker is an Australian Citizen, or if the worker is not an Australian citizen, he or she holds a valid visa that entitles him or her to undertake the kind of work to which he or she was recruited for).  That is, there is a clear distinction between referring a person for work (that is, to undertake work) and referring a person to be considered for work (that is, a job interview).[51]

  1. [59]
    The Complainant further submitted that the Explanatory Memorandum issued, when the Migration Act 1958 (Cth) was amended, includes at [68] that:

New subsection 245AE(1) makes it an offence for a person to refer a non-citizen for work where the non-citizen, in doing the work, [emphasis added] will breach a visa condition which restricts the work he or she may do in Australia.[52]

  1. [60]
    The Complainant has interpreted that to mean:

The term 'refer for work' indeed stands for a labour-hire company deploying a person to undertake work for a third party; and, it does not include a recruitment agent referring a person to consider for work or a job interview to a third party, which was the situation in this case.[53]

  1. [61]
    With respect to the Respondents' contentions about Australian Consumer Law, the Complainant explained his view of "the right approach" that ought to have been taken as:

…the Complainant confirmed to the Respondents that he is an Australian citizen on three occasions: firstly, by filing a form prior to a conversation with the Second Respondent; secondly, by affirming this status over the phone conversation with the Second Respondent; and, thirdly, by providing an undertaking as a legal practitioner that he is an Australian citizen and that he will provide a copy of his passport in due course.  Considering this, if there was a doubt, to deliver the duty under s 18 of the ACL, the right approach was to inform the potential employer, if there was one (which is denied), that the Complainant has confirmed that he is an Australian citizen, which we have not verified and this this status needs to be verified before the commencement of the position.[54]

Finding

  1. [62]
    Although I have earlier found that the Respondents did ask the Complainant to supply information on which unlawful discrimination might be based, I am satisfied that such request for information was necessary to comply with an existing provision of another Act(s).
  1. [63]
    Even if I were to be wrong on that point, I also find that the Respondents have proved, on the balance of probabilities, that the information was reasonably required for a purpose that did not involve discrimination.  (That is, to ensure the Complainant was eligible to work in Australia).
  1. [64]
    Therefore, in either (or both) circumstances above, I find that no breach of s 124 of the AD Act has occurred.
  1. [65]
    At the Hearing, Mrs Mlikota gave evidence that candidates were asked to register with the First Respondent[55] as a matter of course.  A standard form was used for that purpose, that had been developed over a number of years.[56]  The form had been independently reviewed[57] and found to comply with industry standards. 
  1. [66]
    In her evidence, Mrs Mlikota explained that the request for information in the form about citizenship was made to ensure that if the Respondents referred someone for full-time or part-time employment, that the Australian working rights of the candidate had been checked.[58]  Further, if the candidate was placed in temporary work, the First Respondent would be their employer, in which case they had an obligation to ensure the candidate had the right to work in Australia.[59]
  1. [67]
    Mrs Mlikota gave evidence about 'why' the Respondents asked those candidates who they deemed should register with the First Respondent to have their work rights checked at that time, rather than at some time closer to an actual or expressly contemplated referral of the person for employment.  Those reasons included:
  1. a)
    meeting a standard of care and being fair to the person who was approaching the respondent to obtain employment by making sure that such a person was not led to the belief they could obtain employment through the first respondent with employers in Australia without being qualified to do so;
  2. b)
    assuring those employers who may use the first respondent's services that they had systems in place to comply with legislative requirements and therefore providing assistance to those employers with their compliance requirements;
  3. c)
    to be in a position to move quickly in referring a potential candidate to a potential employer;
  4. d)
    to avoid the prospect that this necessary step be taken prior to a referral because a failure to do so could negatively impact on the respondents' reputation in a small market.[60]
  1. [68]
    Those are each sound and credible reasons for requesting information, persuasive of a finding that no breach of s 124 of the AD Act has occurred.

Whether or not victimisation occurred, within the meaning of s 130(1) of the AD Act?

  1. [69]
    From the Complainant's Statement of Facts and Contentions, he appeared to assert that victimisation occurred under s 130(1)(a)(i) of the AD Act. Under that provision, victimisation will happen if a person (the Respondent) does an act, or threatens to do an act, to the detriment of another person (the Complainant) because the complainant refused to do an act that would amount to a contravention of the AD Act.
  1. [70]
    The relevant provision states (emphasis added):

130Meaning ofvictimisation

  1. (1)
    Victimisation happens if a person (the respondent) does an act, or threatens to do an act, to the detriment of another person (the complainant)—
  1. (a)
    because the complainant, or a person associated with, or related to, the complainant—
  1. (i)
    refused to do an act that would amount to a contravention of the Act;

…

Respondents' position

  1. [71]
    The Respondents deny that either or both have victimised the Complainant as alleged or at all.  Further, the Respondents contended they did not refuse to assist the Complainant, did not threaten him, nor refuse to assist him where possible. 
  1. [72]
    Rather, the Second Respondent confirmed to the Complainant in writing that "If a role becomes available that suits your experience then we will make contact with you."[61]

Complainant's position

  1. [73]
    The Complainant submits he refused to do an act that would amount to a contravention of the AD Act when he did not provide the Respondents with a copy of his passport.
  1. [74]
    The Complainant submits that to his detriment, the Respondents consequently refused to consider him for any job opportunities.
  1. [75]
    The Complainant asserted that the Respondents did not consider him for any positions after he had raised the issue.  He stated that "The First Respondent advertised the similar positions (those who can hold a restricted practising certificate) on many occasions throughout 2020, 2021 and 2022.  And the Respondents were aware of this proceeding as early as June 2021, and they continue to advertise similar positions whilst completely disregarding the Complainant's application."[62]

Finding

  1. [76]
    I have earlier found that the Respondents' requests of the Complainant "to supply information on which lawful discrimination might be based" was not in contravention of s 124 of the AD Act because the requests were necessary to comply with an existing provision of another Act and the Respondents have proved to my satisfaction that the information was reasonably required for a purpose that did not involve discrimination.
  1. [77]
    In such circumstances, the Complainant's refusal to provide the Respondents with a copy of his passport is not "an act that would amount to a contravention of the Act."
  1. [78]
    That is because even if the Respondent(s) did do (or threatened to do) something to the detriment of the Complainant, it was not as a result of his refusal "to do an act that would amount to a contravention of the Act".  All those elements are required to meet the definition of 'victimisation' under s 130(1)(a)(i) of the AD Act.
  1. [79]
    Even if I were to be wrong on that point though, neither do I accept that the Respondents have done, or threatened to do, an act to the Complainant's detriment - or as specifically claimed by the Complainant, "refused to consider him for any of the opportunities thereafter while he was unemployed and very actively looking for work."[63]
  1. [80]
    I accept Ms Mlikota's evidence that Ms Sharpe has 15 years' experience recruiting lawyers for the business.[64]  That is not disputed.
  1. [81]
    I accept Ms Mlikota's evidence that the Respondents placed only 4 lawyers in 2020.[65]  Her evidence was that the lawyers that were recruited in that 12 month period had 5 years plus experience.[66]
  1. [82]
    I accept Ms Mlikota's evidence that the Respondents placed only 5 lawyers in 2021.[67]  Her evidence was that the lawyers that were recruited in that 12 month period had "three/four/five/six/seven years' experience".[68] 
  1. [83]
    That is in clear contrast with the Complainant's status as a "newly qualified lawyer, when he applied for the position…"[69]  (Mr Anters persisted with that argument - despite asserting elsewhere that there was no 'position' as such). 
  1. [84]
    In any case, I am satisfied that evidence of merely a few other lawyers being recruited does not (on the balance of probabilities) prove that the Complainant was disregarded.  By extension, nor does it mean that he was disregarded because he did not provide a copy of his passport. 
  1. [85]
    It would be eminently reasonable for the Respondents to have considered the Complainant, but ultimately determined that he was not more suitable than candidates with more years' experience - and therefore not put forward and therefore not successful.  That is not discrimination - it is simply selecting the best candidate available for the job. 
  1. [86]
    The Complainant indeed questioned Ms Sharpe about her conversation with him about potential opportunities in Cairns.  I am satisfied with her response that:

We discussed potential opportunities in Cairns for Mr Anters, what was available at the time, what he was looking for and why he was interested in looking at work in Cairns.[70]

…

The market was a little up and down at the time.  We were coming through toward the end of the COVID restrictions, and, if anything, we were looking for lawyers in more senior areas of expertise.[71]

…

It was along the lines of that "At the moment, I am looking for more senior lawyers.  That doesn't mean I'm not able to provide assistance, and I'm happy to continue to look and let you know of opportunities in the future if I come across any."[72]

  1. [87]
    At the Hearing, Mr Anters asked Ms Sharpe about the lawyers she has placed on behalf of the First Respondent in the last three years.[73] 

Mr Anters: Have you ever recruited a junior lawyer who has less than two years of experience?

Ms Sharpe: No[74]

  1. [88]
    In his closing submissions, the Complainant submitted that (emphasis added) "…although not necessarily as a lawyer, the Complainant would have been employed through the Respondents had he not questioned the Respondents of the purpose of asking a copy of his passport or birth certificate before confirming employment."[75]  That is a curious proposition, given that the genesis of the complaint brought by Mr Anters was the failure of the Respondents to hire him as a "Junior Lawyer / Solicitor".[76] 
  1. [89]
    In doing so, it appears to me that the Complainant attempted to move the goal posts.  The observation of Martin J in Carlton v Blackwood[77] that Respondents should not be disadvantaged by having to "…contend with the shifting sands of an undefined argument" is relevant here.

In the event that one or both questions above are resolved in favour of the Complainant, whether or not the First Respondent is vicariously liable for the actions of the Second Respondent?

  1. [90]
    As neither question was decided in favour of the Complainant, there is no need to now consider the matter of vicariously liability.

In the event of any findings in favour of the Complainant - what relief is appropriate?

  1. [91]
    My findings above mean there is now no requirement to determine this question.
  1. [92]
    For the reasons outlined above, my decision is to dismiss the complaint. 

Costs

  1. [93]
    The Respondents have asked to be heard on the question of costs.[78]
  1. [94]
    Further, there is also the matter of my earlier Decision in an application in existing proceedings that was initiated by the Complainant,[79] in which I reserved my decision on costs.
  1. [95]
    Section 2 of sch 2 of the Industrial Relations Act 2016 (Qld) provides that, for proceedings brought under the AD Act, the default position is for each party to bear its own costs:

Schedule 2Costs provisions for proceedings underAnti-Discrimination Act 1991

1Definitions for schedule

In this schedule—

commission, for an appeal to the court under chapter 11, part 6 against a decision of the commission in relation to a proceeding heard by the commission under the Anti-Discrimination Act 1991, includes the court.

proceeding means a proceeding mentioned in section 548.

2Each party usually bears own costs

Other than as provided under this schedule, each party to the proceeding must bear the party's own costs for the proceeding.

  1. [96]
    A departure from this practice would only occur in circumstances where "the interests of justice" would require an order for costs to be made.[80]  Section 4 of sch 2 lists circumstances that may inform any decision as to whether an order for costs may be made:

4Costs against party in interests of justice

  1. (1)
    The commission may make an order requiring a party to the proceeding to pay all or a stated part of the costs of another party to the proceeding if the commission considers the interests of justice require it to make the order.
  2. (2)
    In deciding whether to award costs under subsection (1) the commission may have regard to the following—
  1. (a)
    whether a party to the proceeding is acting in a way that unnecessarily disadvantages another party to the proceeding;
  2. (b)
    the nature and complexity of the proceeding;
  3. (c)
    the relative strengths of the claims made by each of the parties to the proceeding;
  4. (e)
    the financial circumstances of the parties to the proceeding;
  5. (f)
    anything else the commission considers relevant.
  1. [97]
    It is appropriate to give careful consideration to those legislative provisions and the circumstances of this case, together with any submissions of the parties that may be made on the matter of costs.
  1. [98]
    I will proceed to hear the parties as to costs.

Orders:

  1. [99]
    I order accordingly.
  1. 1.The complaint is dismissed.
  2. 2.I will hear the parties as to costs.

Footnotes

[1] Form 85A – Complainant's Statement of Facts and Contentions, 18 November 2021, 1 [1].

[2] Ibid 1-2 [1]-[2].

[3] Form 85B – Response to the Complainant's Statement of Facts and Contentions, 16 December 2021, 1 [1]-[2]

[4] Respondents' closing submissions, 10 May 2021, 4 [21].

[5] Ibid.

[6] Ibid [3]-[4].

[7] Ibid [6]-[7].

[8] Ibid [8].

[9] Ibid [26]-[27].

[10] (1938) 60 CLR 336.

[11] Complainant's Statement of Facts and Contentions, 18 November 2021, 7.

[12] T 1-5, line 19.

[13] Response to the Statement of Facts and Contentions, 16 December 2021.

[14] Form 85 – Response to the Complainant's Statement of Facts and Contentions, 16 December 2021, 10 - 11 [32].

[15] Ibid 11 [32].

[16] T 1-12, line 37.

[17] T 1-28, lines 40 – 44.

[18] T 1-28, line 40.

[19] T 1-31, line 32.

[20] T 1-31, line 45.

[21] T 1-34, lines 17 – 30.

[22] Complainant's Statement of Facts and Contentions, 18 November 2021, [9].

[23] Ibid [11].

[24] Ibid [12].

[25] Ibid [13].

[26] Ibid [14].

[27] Ibid [15].

[28] Ibid [17].

[29] Ibid [18].

[30] Complainant's Outline of Arguments, 11 March 2022, 1 [3].

[31] Ibid [2].

[32] Ibid [4] - [5].

[33] Respondents' Statement of Facts and Contentions, 16 December 2021, 7 [25].

[34] Ibis [26].

[35] Ibid.

[36] Ibid.

[37] Respondents' Outline of Arguments, 29 March 2022, 7, [31].

[38] Respondents' Statement of Facts and Contentions, 16 December 2021, 8 [27].

[39] Commonwealth v Humphries (1998) 86 FCR 324, 333B.

[40] Respondents' Outline of Arguments, 29 March 2022, 2 [7].

[41] Respondents' Outline of Arguments, 29 March 2022, 6 [25].

[42] Complainant's Outline of Arguments, 11 March 2022, 1 [1].

[43] Migration Act 1958 (Cth) s 245AE.

[44] Respondents' Outline of Arguments, 29 March 2022, 2 [9].

[45] Ibid [10].

[46] Ibid 4 [13].

[47] Respondents' Statement of Facts and Contentions, 16 December 2021, 7 – 8 [26].

[48] Respondents' Outline of Arguments, 29 March 2022, 4 [18].

[49] Competition and Consumer Act 2010 (Cth) sch 2, s 18.

[50] Respondents' Outline of Arguments, 29 March 2022, 5 [16] - [17], [20].

[51] Complainant's Outline of Arguments, 4 April 2022, 1 [1].

[52] Ibid [2]; Explanatory Memorandum, Migration Amendment (Employer Sanction) Bill 2006 (Cth), [68].

[53] Complainant's Outline of Arguments, 4 April 2022, 3 [4].

[54] Ibid [8].

[55] T 1-35, lines 22-34.

[56] T 1-36, lines 7-9.

[57] T 1-37, lines 6-10.

[58] T 1-36, lines 28-36.

[59] T 1-36, lines 29-36.

[60] Respondents' written closing submissions, 10 February 2023, 2 [5].

[61] Respondents' Statement of Facts and Contentions, 16 December 2021, 8 [27].

[62] Complainant's Outline of Arguments, 4 April 2022, 4 [9].

[63] Complainant's Outline of Arguments, 11 March 2022, 1 [3].

[64] T 1-37, line 24.

[65] T 1-37, line 36.

[66] T 1-37, line 40.

[67] T 1-38, line 1.

[68] T 1-38, line 7.

[69] Complainant's written closing submissions, 16 January 2023, 1 [3].

[70] T 1-54, line 38.

[71] T 1-54, line 43.

[72] T 1-55, line 4.

[73] T 1-59, line 47.

[74] T 1-60, lines 1-2.

[75] Complainant's written closing submissions, 16 January 2023, 1 [5].

[76] Form 85 – Referral of a matter, 24 August 2021, A-3 CBC Staff Selection Registration Form dated 20 September 2020, 1.

[77] [2017] ICQ 001, [18].

[78] Respondents' Closing Submissions, 10 February 2023, 7 [29].

[79] Anters v JM Group Holdings Pty Ltd & Anor [2022] QIRC 382, [40].

[80] Industrial Relations Act 2016 (Qld) sch 2, s 4(1).

Close

Editorial Notes

  • Published Case Name:

    Anters v JM Group Holdings Pty Ltd & Anor (No. 2)

  • Shortened Case Name:

    Anters v JM Group Holdings Pty Ltd (No. 2)

  • MNC:

    [2023] QIRC 131

  • Court:

    QIRC

  • Judge(s):

    McLennan IC

  • Date:

    19 May 2023

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Anters v JM Group Holdings Pty Ltd [2022] QIRC 382
2 citations
Jump To
Cite 1 - [2022] QIRC 382
Cite 2 - [2022] QIRC 382
Briginshaw v Briginshaw (1938) 60 C.L.R 336
2 citations
Jump To
Cite 1 - (1938) 60 C.L.R 336
Cite 2 - (1938) 60 C.L.R 336
Carlton v Workers' Compensation Regulator [2017] ICQ 1
2 citations
Jump To
Cite 1 - [2017] ICQ 1
Cite 2 - [2017] ICQ 1
Commonwealth v Humphries (1998) 86 FCR 324
2 citations
Jump To
Cite 1 - (1998) 86 FCR 324
Cite 2 - (1998) 86 FCR 324
Willmott v Woolworths Ltd [2014] QCAT 601
1 citation
Jump To
Cite 1 - [2014] QCAT 601

Cases Citing

Case NameFull CitationFrequency
Albert v Global Healthcare Pty Ltd [2023] QCAT 4281 citation
Anters v JM Group Holdings Pty Ltd (No. 3) [2023] QIRC 2383 citations
1

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