Piepkorn v Gerard Industries Pty Ltd [2000] FCA 150 (27 January 2000)

Last Updated: 1 March 2000

FEDERAL COURT OF AUSTRALIA

Piepkorn v Gerard Industries Pty Ltd [2000] FCA 150

HENRIETTE PIEPKORN v GERARD INDUSTRIES PTY LTD

S 97 OF 1999

MANSFIELD J

27 JANUARY 2000

ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S 97 OF 1999

BETWEEN:	HENRIETTE PIEPKORN Applicant
AND:	GERARD INDUSTRIES PTY LTD Respondent

JUDGE:	MANSFIELD J
DATE:	27 JANUARY 2000
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

1 On 3 December 1999 the applicant brought proceedings ostensibly under s 298K(d) and (e) of the Workplace Relations Act 1996 (Cth) ("the Act"). That application was amended on 22 December 1999 to refer separately to ss 298L and 298M of the Act. In effect, whatever the substantive provisions nominally relied upon, this is an application under s 298T of the Act for orders under s 298U of the Act for contraventions of some provisions of Div 3 of Pt 10A of the Act, in particular ss 298K, 298L or 298M.

2 As counsel for the respondent has identified, the amended application really contains three claims. The background to the application, as the evidence shows, is that the respondent opened a plant, as one of its plants, in Strathalbyn, South Australia, in about 1994. At about that time the applicant applied for employment at the Strathalbyn plant of the respondent, but it was refused. The first letter indicating that her application for employment was unsuccessful was dated 5 April 1995.

3 Since that time, on her evidence, she has applied for employment with the respondent at its Strathalbyn plant on more or less a six monthly basis, but none of her applications have been successful. In each case she has received a letter from the manager of the Strathalbyn plant, Mr Spencer, indicating that her application was unsuccessful, but that it would be held on file for a period of some months and would be reconsidered should a suitable position become available.

4 The applicant was previously employed between 1972 and 1975 in the vehicle industry as an assembler but she also performed other tasks. She was also employed in the plastics industry as an assembler, but again performing a range of tasks, between 1978 and 1984. In each of those employments, she was a member of the industrial association which covered that industry. But in neither case was she an officer or a shop steward of the industrial association concerned. She said, and I accept, that she was an interested and active member of the industrial association in each instance.

5 The present application makes the following claims:

"1. The Applicant seeks the grounds for refusal of employment by [sic] respondent.

2. Restricting the Applicant's right to employment, by the Applicant's past association with unions; and when employment occurs further association with the unions.

3. Grounds are seeked by the Applicant from the Respondent about the Applicant's work experience and attitude for suitability of employment."

6 The evidence before me comprises the applicant's two affidavits sworn on 1 and 22 December 1999 and her oral evidence supplementing that material in some respects.

7 Apart from her employment history and the fact of her applications for employment with the respondent from time to time to which I have referred, she also said, and I accept, that she is physically fit for the general sort of work which employees of the respondent carry out at its Strathalbyn plant, and that she is aware of occupational health and safety considerations relevant to the carrying out of that work. She also said that she sat for the aptitude test required by the respondent when she first applied for employment.

8 She has asked Mr Spencer orally on several occasions to explain why she has not been given employment. Her evidence is that he told her that it was due to her attitude, which would upset other workers at the applicant's Strathalbyn plant. She asked for an explanation of that, but was not given it. On some occasions, she asked for the explanation to be given in writing, but she was told that the respondent did not have to give that explanation in writing and would not do so. She has not received any explanation in writing. In later times, when she has asked Mr Spencer why she has not been employed when work is available, he has told her that she knows the reason.

9 It is understandable that the applicant seeks to know the reason why she has not been employed by the applicant as she says, and it is unchallenged, that in the period since 1994 the respondent has employed other persons at its Strathalbyn plant from time to time.

10 She is presently in receipt of social security benefits. She is anxious not to be exposed to the risk of losing those benefits because of a lack of effort on her part in seeking employment. Her evidence as to her attempts to seek employment with the respondent on a regular basis do not indicate any lack of effort on her part in seeking employment, at least from the respondent. However, that desire on her part is not necessarily the foundation of an entitlement to legal relief of the type which she now seeks.

11 At the close of her case, the respondent sought to make a submission that there was no case to answer in respect of the three claims for relief which she has made. I permitted that submission to be made as a matter of law, without the respondent being called upon to elect to call no evidence in the case. In the case of the claims for relief numbered 1 and 3, it was put simply that there was no legal foundation upon which the Court could, on the facts as asserted by the applicant, grant the relief sought. In the case of the claim for relief numbered 2, it was acknowledged that s 298K(1)(d) may be infringed if the applicant were refused employment by reason of one of the prohibited reasons. The relevant prohibited reason is that specified in s 298L(1)(a), namely that the applicant has been refused employment because she

"... proposes to become or has at any time proposed to become an officer, delegate or member of an industrial association."

12 The respondent's submission was that, on the applicant's case, there was simply no evidence upon which the Court could conceivably conclude that the applicant had not been employed by the respondent for that prohibited reason.

13 I propose to deal with ground 1 of the applicant's claim first.

14 The applicant's claim to be entitled to receive in writing grounds for refusal of employment by the respondent was not one which she was able to attach to any of the provisions to which she referred. In respect of that claim, she identified s 298K(1)(e) of the Act. It provides that:

"An employer must not, for a prohibited reason, or for reasons that include a prohibited reason, do or threaten to do any of the following:

...

(e) discriminate against another person in the terms or conditions on which the employer offers to employ the other person."

15 She was unable to refer to any prohibited reason, identified by reference to s 298L, upon which she relied, other than her previous membership of an industrial association. I will deal with that aspect of the matter when considering ground 2 of her claims. I do not consider, in the absence of her being able to identify a prohibited reason (other than that to be considered in relation to ground 2), that it has been shown, or that on the material it could be shown, that there has been a contravention of s 298K(1)(e) by the respondent.

16 The applicant in her submissions speculated that she may have been discriminated against because of her sex, because of her age or because of her past employment history. There is simply no evidence from which the Court could draw the conclusion that she has been refused employment because of her age or because of her sex. It is speculative why she has not been given employment by the respondent except that Mr Spencer has, on the evidence, explained to her that she has not been employed because her attitude would be such as to upset other workers. There is no other evidence of a reason why she has not been employed by the respondent at the Strathalbyn plant. Such evidence as there is does not point to any prohibited reason referred to in s 298L of the Act. (I put aside the allegation concerning her union membership.)

17 It seems to me, therefore, that the claim to be entitled to written reasons for refusal of employment cannot succeed as a matter of law. There is no provision which the applicant has referred to which expressly entitles her to such written notification. No provision to which she has referred empowers the Court, in the absence of a contravention of s 298K, to order the provision of such information.

18 In addition, I do not consider that s 298K(1)(e) avails the applicant in any event. It contemplates the existence of an offer of employment upon terms which are different from an offer of employment to other persons. On the facts the applicant has not been offered employment by the respondent at all. The foundation upon which orders might be made, assuming such orders could include orders of the nature sought, does not exist.

19 I turn to consider the second of the grounds. As I have noted, as a matter of law the Court is empowered to grant relief for a contravention of s 298K(1)(d), that is, an employer's refusal to employ another person, provided that refusal is for a prohibited reason. The prohibited reason identified by the applicant is her past association with industrial associations and her possible further association with industrial associations. In some form, that expression is encompassed within s 298L(1)(a) of the Act.

20 In my judgment, on the evidence of the applicant, she cannot possibly succeed on that application. There is no evidence that the topic of her membership of an industrial association in her prior employment was known to, or was of any significance to, the respondent. On the evidence, on the employment application forms which she completed she either said that she was not a member of an industrial association or, in one instance, she answered that question as to whether she was a member of an industrial association with a question mark. That was, as she said, because she was in dispute with the industrial association of which she had last been a member as to whether she continued to be a member of that association or was suspended from membership.

21 At all events, there is no evidence that the respondent was even aware of her membership of any industrial association at any time when, as it did from time to time, it declined to employ her. Nor is there any evidence that the applicant's participation in the affairs of those associations of which she was a member in her previous employments was such as to take her out of what is sometimes called the rank and file membership category. There is no evidence from which the Court could infer, in those circumstances, that the respondent's refusal to employ the applicant was because she is, or has been, or proposes to become, or has at any time proposed to become, an officer, delegate or member of an industrial association.

22 Indeed, as the applicant indicated both in the course of her evidence, and in her submissions, her previous membership of an industrial association was but one of her speculations as to why she had not been employed. She was unable to identify any occasion in which such membership had featured at all in her applications for employment, or in her discussions with Mr Spencer.

23 Accordingly, I am satisfied that that ground of the application simply cannot succeed on the evidence.

24 The third of the grounds again must fail, in my view, simply because in the absence of any proved contravention of s 298K of the Act, the Court has no power to provide relief of the sort which the applicant seeks.

25 As the amended application also refers to s 298M of the Act, I have also considered the provisions of that section. Again, in my judgment, none of its terms are applicable to the applicant in the present circumstances.

26 Taking the evidence at its highest, as a matter of law, I simply do not think that the applicant can succeed on this application. For those reasons, in my view, this application must fail. I dismiss the application.

I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.

Associate:

Dated:

Applicant appears in person
Counsel for the Respondent:	Mr I R Colgrave
Solicitors for the Respondent:	Norman Waterhouse
Date of Hearing:	27 January 2000
Date of Judgment:	27 January 2000