Maric v Ericsson Australia Pty Ltd

• Jurisdiction: Australia Federal only
• Judge: STEWARD J
• Judgment Date: 09 April 2020
• Neutral Citation: [2020] FCA 452
• Court: Federal Court
• Date: 09 April 2020

FEDERAL COURT OF AUSTRALIA

Maric v Ericsson Australia Pty Ltd [2020] FCA 452

File number:	VID 844 of 2019
Judge:	STEWARD J
Date of judgment:	9 April 2020
Catchwords:	INDUSTRIAL LAW – general protections – workplace rights – adverse action – where applicant was a prospective employee of respondent – where applicant alleged that respondent took adverse action against her for exercising alleged “workplace rights” during the course of negotiating her prospective employment – whether the applicant as a “prospective employee” had a “workplace right” to make an inquiry within the meaning of s. 341(1)(c)(ii) of the Fair Work Act 2009 (Cth.) – whether the alleged inquiries were capable of being an “inquiry” within the meaning of s. 341(1)(c)(ii)
Legislation:	Disability Discrimination Act 1992 (Cth.) ss. 5, 15 Fair Work Act 2009 (Cth.) ss. 340, 341, 342 Equal Opportunity Act 2010 (Vic.) s. 20
Cases cited:	Australasian Meat Industry Employees’ Union v. Belandra Pty Ltd [2003] FCA 910; (2003) 126 I.R. 165 Burnie Port Corporation Pty Ltd v. Maritime Union of Australia (2000) 104 F.C.R. 440 Cigarette & Gift Warehouse Pty Ltd v. Whelan (2019) 268 F.C.R. 46 Commissioner of Taxation v. Murray (1990) 21 F.C.R. 436 Construction, Forestry, Mining & Energy Union v. Pilbara Iron Company (Services) Pty Ltd (No 3) [2012] FCA 697 DCC Holdings (UK) Ltd v. Revenue and Customs Commissioners [2010] UKSC 58; [2011] 1 W.L.R. 44 Federal Commissioner of Taxation v. Comber (1986) 10 F.C.R. 88 Handbury Holdings Pty Ltd v. Federal Commissioner of Taxation (2009) 179 F.C.R. 56 Harts Australia Ltd v. Commissioner of Taxation (2001) 109 F.C.R. 405 Marshall v. Kerr [1993] S.T.C. 360 Murrihy v. Betezy.com.au Pty Ltd [2013] FCA 908; (2013) 238 I.R. 307 Newcastle Airport Pty Ltd v. Chief Commissioner of State Revenue (NSW) [2014] NSWSC 1501; (2014) 99 A.T.R. 748 PIA Mortgage Services Pty Ltd v. King [2020] FCAFC 15 Project Blue Sky Inc. v. Australian Broadcasting Authority (1998) 194 C.L.R. 355 Shea v. TRUenergy Services Pty Ltd (No 6) [2014] FCA 271; (2014) 242 I.R. 1
Date of hearing:	12 March 2020
Date of last submissions:	17 March 2020
Registry:	Victoria
Division:	Fair Work Division
National Practice Area:	Employment & Industrial Relations
Category:	Catchwords
Number of paragraphs:	65
Counsel for the Applicant:	Mr G. Lake
Solicitor for the Applicant:	McDonald Murholme
Counsel for the Respondent:	Mr J. R. M. Tracey
Solicitor for the Respondent:	MinterEllison

ORDERS

		VID 844 of 2019
BETWEEN:	DRAGICA MARIC Applicant
AND:	ERICSSON AUSTRALIA PTY LTD Respondent

JUDGE:	STEWARD J
DATE OF ORDER:	9 APRIL 2020

THE COURT ORDERS THAT:

1. The matter be referred to mediation before a Registrar of this Court on a date to be fixed.

2. There be no order as to costs.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

STEWARD J:

1 This is an unusual case. It raised, by the posing of two preliminary questions of law, issues of some complexity and importance with respect to the operation of the Fair Work Act 2009 (Cth.) (the “FW Act”). In March 2019, the applicant considered an offer of employment made to her by the respondent. For that purpose, the applicant was acknowledged by all parties to have been a “prospective employee” of the respondent as that term is relevantly used in the FW Act. Ultimately, in early April 2019, the respondent declined to employ the applicant. The applicant alleges that the respondent took “adverse action” against her when she exercised four alleged “workplace rights” during the course of negotiating her prospective employment. The adverse action on which the applicant relies is the respondent’s refusal to employ her. The applicant now seeks the payment to her by the respondent of damages, compensation and penalties.

2 The parties agreed that the first step in this proceeding should be for the Court to answer two preliminary questions of law based upon an agreed set of facts and a joint tender bundle. The purpose of proceeding in this way was to avoid the potential incurrence of unnecessary cost. The agreed questions were as follows:

1. As a prospective employee of the Respondent and by reason of subsection 341(3) of the Fair Work Act 2009 (Cth) (FW Act), did the Applicant have a workplace right constituted by her being able to make a complaint or inquiry within the meaning of subsection 341(1)(c)(ii) of the FW Act in relation to her prospective employment?

2. If yes, are the First and/or Second and/or Third and/or Fourth Alleged Inquiry or Inquiries capable of being a complaint or inquiry within the meaning of subsection 341(1)(c)(ii) of the FW Act?

3 The First, Second, Third and Fourth Alleged Inquiries are defined terms in the Statement of Agreed Facts set out below.

4 The first question was drafted to test a broad proposition advanced by the respondent that s. 341(1)(c)(ii) of the FW Act (reproduced below) does not apply to “prospective employees”, as that term is used in s. 341(3) of the FW Act (also reproduced below). The second question assumes that s. 341(1)(c)(ii) can apply to prospective employees, and addresses whether the particular inquiries made by the applicant here were on each occasion the exercise of a “workplace right” (as defined). I also observe that whilst each question referred to both a complaint and an inquiry, it was accepted that no complaints had been made by the applicant here; rather, she had only made inquiries. It follows that each question should be read as confined to the making of an inquiry.

5 I note that the applicant has also pleaded claims in reliance upon s. 351 of the FW Act and s. 31 of the Australian Consumer Law as contained in Sch. 2 to the Competition and Consumer Act 2010 (Cth.) (the “A.C.L.”). The latter section provides, in general terms, that a person must not, in relation to employment that is offered, engage in conduct that is liable to mislead a person seeking employment. Those claims are not considered in these reasons, and may need to be addressed on another occasion.

6 I should otherwise record and thank the parties for the high degree of mutual co‑operation they displayed in agreeing upon both the questions to be answered and upon the necessary facts.

Relevant Statutory Provisions

7 This dispute arises under Div. 3 of Pt. 3-1 of the FW Act.

8 Section 340 of the FW Act provides:

Protection

(1) A person must not take adverse action against another person:

(a) because the other person:

(i) has a workplace right; or

(ii) has, or has not, exercised a workplace right; or

(iii) proposes or proposes not to, or has at any time proposed or proposed not to,...