Re Jacqueline Nora Hough v Council of the Shire of Caboolture [1992] FCA 539; (1992) 79 Lgera 23 (1992) 39 FCR 514 (10 November 1992)

FEDERAL COURT OF AUSTRALIA

Re: JACQUELINE NORA HOUGH
And: COUNCIL OF THE SHIRE OF CABOOLTURE
No. QLD G98 of 1992
FED No. 1031
Number of pages - 12
Civil and Political Rights
[1992] FCA 539; (1992) 79 LGERA 23
(1992) 39 FCR 514

COURT

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
Spender J.(1)

CATCHWORDS

Civil and Political Rights - sexual discrimination - determinations by Human Rights Commission - application for enforcement - determination of preliminary question on agreed facts - whether Shire Council employer (by the conduct of an employee) had engaged in unlawful conduct in breach of the Act - whether Council project a 'Commonwealth program' - Council 'performing a function...for the purposes of the Commonwealth Employment Program'.

Sex Discrimination Act 1984 ss. 26, 82.

Community Employment Act 1983 ss. 3, 4, 5, 11, 12.

HEARING

BRISBANE
10:11:1992

Counsel for the applicant: Mrs D Richards

Instructed by: Legal Aid Office (Qld.)

Counsel for the respondent: Mr S. M. Ure

Instructed by: King and Co.

ORDER

THE COURT DECLARES THAT:
On the premise that the applicant had been subjected to

discriminatory conduct on the ground of her sex in her employment
by the Council of the Shire of Caboolture, the Council would have
engaged in unlawful conduct in breach of s. 26 of the Sex
Discrimination Act 1984.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

DECISION

SPENDER J. On 7 July 1992, an application was filed by Jacqueline Nora Hough against the Council of the Shire of Caboolture ('the Council') seeking a declaration that the Council, by one of its foremen, engaged in unlawful conduct in breach of s. 26 of the Sex Discrimination Act 1984 ('the Act') in respect of the applicant and seeking a declaration pursuant to s. 82 of the Sex Discrimination Act as to an entitlement to damages by way of compensation and lost wages.

2. A complaint by the applicant had been heard by the Human Rights Commission which made various determinations. The application to enforce those determinations in the Federal Court is made pursuant to s. 82 of the Sex Discrimination Act .

3. In a sensible attempt to resolve the matters seriously in dispute, the parties in the Federal Court agreed to the determination of a preliminary question which it was stated would go a long way to resolve the matters in issue between the parties.

4. In the statement of agreed facts filed 6 November 1992, the introductory paragraph states:

" If the factual matters set out in paragraphs 5 and 7 of
the Statement of Claim are true, has the respondent
engaged in unlawful conduct in breach of section 26 of
the Sex Discrimination Act. "

Immediately underneath that is the statement:

" Included in the above question:
(a) does the discrimination comprehended by section 26
of the Act include sexual harassment;
(b) was the respondent performing a function under the
Commonwealth Employment Act or for the purposes of
the Commonwealth Employment Program or having any
other responsibility for the administration of the
Commonwealth Employment Act or for the conduct of
the Commonwealth Employment Program in its on-going
employment of and dismissal of the Applicant. "

5. It is accepted by Mr Ure, counsel for the Council, that the discrimination comprehended by s. 26 of the Act includes sexual harassment, so it is unnecessary to consider that aspect of the matter further.

6. Section 26 provides:

" (1) It is unlawful for a person who performs any
function or exercises any power under a Commonwealth law
or for the purposes of a Commonwealth program, or has any
other responsibility for the administration of a
Commonwealth law or the conduct of a Commonwealth
program, to discriminate against another person, on the
ground of the other person's sex, marital status or
pregnancy, in the performance of that function, the
exercise of that power or the fulfilment of that
responsibility.
(2) This section binds the Crown in right of a State. "

7. In its terms the prohibition of the section extends to a person who:

(1) performs any function under a Commonwealth law, or
(2) exercises any power under Commonwealth law, or
(3) performs any function for the purposes of a Commonwealth
program, or
(4) exercises any power for the purposes of a Commonwealth
program, or
(5) who has any other responsibility for the administration of a
Commonwealth law, or
(6) has any other responsibility for the conduct of a
Commonwealth program.

8. Section 4 of the Act defines "Commonwealth program" as:

" ...a program conducted by or on behalf of the Commonwealth
government. "

9. Included in the agreed facts are the following:

" 1. The applicant is a woman, 26 years of age, having
been born on 14 December, 1965.
2. The applicant was employed from 2 February 1987 to
27 May, 1987 as a labourer as part of a work gang
carrying out work in Summer Street, Deception Bay,
within the Shire of Caboolture.
3. The work which the said gang was engaged in
constituted an approved project pursuant to the
Community Employment Program which program was
established and carried on pursuant to the
Community Employment Act 1983 (Commonwealth).
4. The respondent was, at all relevant times, and
remains a local authority constituted pursuant to
the Local Government Act 1936 (Queensland).
5. The respondent was, at all relevant times, the
employer of one, Brian Stevens, who was appointed
foreman of the gang working on the project and the
immediate supervisor of, and co-employee of, the
applicant. "

10. As appears from the agreed fact 3, the applicant was engaged in a project pursuant to the Community Employment Program.

11. The Community Employment Act 1983 is entitled: "An Act to provide for the creation of additional employment throughout Australia".

12. By s. 3 of that Act 'approved project' means "a project approved under section 4".

13. Section 4 provides:

" (1) The Minister, or an officer of the Department who is
authorised by the Minister by instrument in writing, may
approve projects for the creation of employment.
(2) In approving projects for the purposes of sub-section
(1) particular regard shall be had to the creation of
employment for the long-term unemployed and for unemployed
persons who are specially disadvantaged. "

14. By s. 5(1):

" the Minister may, on behalf of the Commonwealth, enter into
an agreement with a State for the carrying out of approved
projects in the State. "

15. By s.5(2):

" Without in any way limiting the matters that may be provided
for in an agreement with a State, such an agreement shall
include provision for and in relation to -
(a) the manner of carrying out the approved projects to
which the agreement relates;
(b) payments to be made to the State under this Act;
and
(c) the conditions subject to which those payments
shall be made. "

16. Section 11(1) relevantly provides:

" An agreement under this Act is, except so far as otherwise
provided in the agreement, subject to the following
conditions:
(a) the payee is not entitled to a payment under the
agreement with respect to any expenditure by the
payee for the purposes of carrying out an approved
project unless the payee has furnished to the
Minister -
(i) in the case of an agreement with a State or a
Commonwealth authority - a statement in respect
of that expenditure, in accordance with a form
approved by the Minister, accompanied by a
certificate of the Auditor-General certifying,
in relation to each amount shown in the
statement as having been expended, either -
(A) that, in his opinion, the amount was
expended for the purposes of carrying out
the approved project; or
(B) that he has received a certificate from a
qualified accountant stating that, in his
opinion, the amount was expended for the
purposes of carrying out the approved
project."

17. In relation to the payment to a payee for the purposes of carrying out an approved project, s. 11(6) relevantly provides that:

" If the Minister so requests, the payee shall furnish to
the Minister, as soon as practical after such date as the
Minister specifies, a report on the activities by the
payee in connection with the approved project, being a
report containing such particulars as are specified by
the Minister; "

18. By s. 12 of the Community Employment Act, the consolidated revenue fund is appropriated to the extent of $300 million for the purposes of payments made, and expenditure incurred, under that Act in respect of the financial year commencing on 1 July 1983, and subsequent financial years payments are to be out of moneys appropriated by Parliament for that purpose.

19. The approved project on which the applicant was engaged was the installation of Council stormwater drainage in Summer Street, Deception Bay within the Shire of Caboolture. The total cost of that approved project was $93,314.00, $72,163.00 of which was contributed pursuant to the Community Employment Program ('CEP').

20. On 28 August 1986, the Shire Clerk on behalf of the Council forwarded to the CEP Secretariat an application for projects, one of which was the stormwater drainage at Summer Street. The application detailed that the project was expected to last 26 weeks and that it was expected that six long-term unemployed persons would be recruited for the project. The application was supported by a certificate signed by the Shire Clerk which concluded:

" I certify that the work to be performed by the proposed
project will be additional to that which would otherwise
be performed and will comply with all Municipal, State
and Commonwealth laws and regulations relating to the
projects operation. "

21. On 21 November 1986, the Joint Secretariat of the Community Employment Program approved the project, the subject of the application by the Council. The grant of approval was made subject to a number of conditions contained in a letter from the Joint Secretariat to the Council dated 28 November 1986.

22. The grant was further conditional upon the requirement that the Council, as project sponsor of the said project, abide by the Community Employment Program guidelines for project sponsors.

23. So far as the conditions are concerned, those relevant for present purposes are the following:

" Sponsoring organisations shall:
(a) Abide by the Community Employment Program Guidelines
for Project Sponsors (October 1986).
(b) Assume all normal employer responsibilities
including the securing of all appropriate insurances
(such as workers' compensation, public liability)
and the meeting of appropriate award wages and
conditions;
. . . .
(c) Comply with all Municipal, State and Commonwealth
laws and regulations relating to project operations.
. . . .
(g) Open a separate bank account for grant funds, keep
appropriate records of income and expenditure and
commit and expend grant funds according to the
approved budget for that project:
. . . .
(h) Any identified interest accrued on grant funds must
be accounted for and expended on approved
activities....
. . . .
(i) Assist participants to obtain permanent employment
following CEP participation by providing a written
reference, or statement of service and releasing
participants to attend both job interviews and CES
interviews toward the end of their placements,
subject to the provision of reasonable prior notice.
. . . .
(q) Include, where it is intended to publicly promote
projects, appropriate acknowledgement of the Program
as a source of funding. The Program should be
promoted as a Federal Government initiative jointly
administered by the Commonwealth and State/Territory
Governments. This applies in all cases including
project stationery signs, advertising and media
publicity. Consultation with the Commonwealth
should occur when a sponsor wishes to erect project
identification on the site. CEP promotion material
where supplied by the Secretariat, is to be
displayed prominently on the project. "

24. These conditions were accepted by the Shire Clerk on 15 December 1986.

25. Under the guidelines referred to in condition (1), the Introduction states, inter alia:

" This booklet contains guidelines which are for use by
local government authorities and community groups who
wish to participate as project sponsors under the
Program. "

26. Under section 3A of those guidelines, headed 'Criteria for Funding', the minimum criteria include:

" Sponsors must:
. be capable of managing a CEP grant and project; "

and:

" Projects must:
. conform with the basic CEP aim and objectives; ...
. satisfy requirements of any relevant municipal,
State/Territory and Commonwealth laws and
regulations, including those relating to award wages
and conditions; "

27. The 'Details of Criteria for Funding', indicate that local government authorities are eligible for CEP grants.

28. By clause 3.4.3 under that heading:

" Sponsors are required to:
. demonstrate that they have the structure and
organisation to;
- effectively manage all aspects of the project...
- properly administer funds
- effectively supervise participants
. . . .
. accept all normal employer responsibilities.
Sponsors must assume overall responsibility for the
administration and operation of a CEP project. "

29. By clause 3.7.1 sponsors are required to certify:

" ...that the activity and employment is additional to that
which would normally have been undertaken:
. The work performed must be a new activity.
. The position must be one created for the purpose of
the project and not one which is unstaffed due to
the termination of a previous employee's employment."

30. Finally, in respect of the guidelines, under the heading "Administration of Approved Projects" all vacancies have to be lodged with the local CES office and sponsors are not to recruit from any other source or advertise project vacancies.

31. Under clause 5.5, a passage relied on by the Council, it is stated:

" Where it is intended to publicly promote CEP projects,
sponsors should ensure that appropriate acknowledgment is
made of the Program as a source of funding. The Program
should be promoted as a Commonwealth Government
initiative jointly administered by the Commonwealth and
State or Territory Governments. "

32. By clause 5.7:

" A variation to a project cannot be implemented until
approval is advised by the Secretariat."

33. Clause 5.9 provides that:

" Sponsors will be required to provide information on the
project, and the expenditure of funds, to the
State/Territory authorities and the CEP Secretariat.

34. Reports will include:

. regular project reports on participants and
financial expenditure, as required;
. an audited statement in a format prescribed by the
State/Territory Authority of expenditure at the
completion of the project. "

35. As the agreed facts indicate, there is no doubt that the project installing stormwater drainage in Summer Street, Deception Bay, on which the applicant worked, was a project approved pursuant to the Community Employment Program, established and carried on pursuant to the Community Employment Act.

36. One limb of the submissions by the Council concerned the formulation of the breach by the Council alleged in the statement of claim, and criticism was made that that particularised breach did not constitute a contravention of s. 26 of the Act. There is some merit in that submission, but in the view I take of the matter the question that has to be asked is whether, on the agreed facts, the Council engaged in unlawful conduct in breach of s. 26 of the Sex Discrimination Act. That question extends to inquiring whether, on the agreed facts, any of the six variants earlier referred to of infringement of s. 26 is made out.

37. It seems to me that there are two possibilities; namely, was the Council, in carrying out an approved project pursuant to the Community Employment Program established and carried on pursuant to the Community Employment Act, performing a function for the purposes of a Commonwealth program? Alternatively, did the Council, in carrying out that approved project, have a responsibility for the conduct of a Commonwealth program? The submission by the Council in respect of this aspect of the matter was that, particularly having regard to the definition of 'Commonwealth program' in the Sex Discrimination Act, the Community Employment Program is properly to be characterised as a program of putting in place funds to enable projects to be carried out.

38. The submission seeks to draw a crucial distinction between a project on the one hand and the program on the other. As a consequence of this primary submission, it was submitted that carrying out a project was not performing a function for the purposes of putting in place of funds to enable projects to be carried out, and therefore it cannot properly be said that the Council, in carrying out the approved project of stormwater drainage was performing a function for the purposes of a Commonwealth program.

39. It seems to me that the concept of a program cannot be circumscribed as submitted by Mr Ure on behalf of the Council. As the definition of 'approved project' in the Community Employment Act indicates, the program on which the Commonwealth embarked by the scheme contemplated by the Community Employment Act, was a program for the creation of additional employment throughout Australia. That program was to be achieved by the approval of projects which were analysed and approved for the creation of employment and in the carrying out of which, conditions were imposed which had the effect of ensuring that long-term unemployed or specially disadvantaged unemployed persons were recruited for the purposes of the project. The projects were monitored by the provision of reports and the submission of accounts to ensure that the program was achieving its object.

40. In the view I take of the matter, carrying out an approved project by the Council was the performing of a function by the Council for the purposes of the Commonwealth Employment Program. Consequently, on the premise that the applicant had been subjected to discriminatory conduct on the ground of her sex in her employment by the Council of the Shire of Caboolture, the Council would have engaged in unlawful conduct in breach of s. 26 of the Sex Discrimination Act.