Morton v Commonwealth Scientific and Industrial Research Organisation (No 2)

• Jurisdiction: Australia Federal only
• Judge: RANGIAH J
• Judgment Date: 29 October 2019
• Neutral Citation: [2019] FCA 1754
• Court: Federal Court
• Date: 29 October 2019

FEDERAL COURT OF AUSTRALIA

Morton v Commonwealth Scientific and Industrial Research Organisation (No 2) [2019] FCA 1754

File number:	QUD 234 of 2017
Judge:	RANGIAH J
Date of judgment:	29 October 2019
Catchwords:	INDUSTRIAL ACTION – adverse action – where applicant alleges adverse action taken against her because of sex or sexual orientation – where applicant alleges to have exercised or proposed to exercise workplace rights – where applicant alleges adverse action taken or threatened with intent to coerce her not to exercise workplace rights – interaction between Fair Work Act 2009 (Cth) and Sex Discrimination Act 1984 (Cth) – vicarious liability of respondent for acts committed by employees ; PRACTICE AND PROCEDURE – application to withdraw an admission made in amended defence – where application made in closing address – leave to withdraw not freely granted – application refused
Legislation:	Disability Discrimination Act 1992 (Cth) ss 15(2) and 16.02 Evidence Act 1995 (Cth) s 140 Fair Work Act 2009 (Cth) ss 340(1), 341(1), 342(1), 343(1), 345, 346, 351, 351(1), 351(2), 351(3), 360, 361(1), 545, 793(1) Safety Rehabilitation and Compensation Act 1988 (Cth) Science and Industry Research Act 1949 (Cth) s 8(2) Sex Discrimination Act 1984 (Cth) ss 5, 14(2), 28A, 28B and 106 Federal Court Rules 2011 (Cth) r 16.02(3)
Cases cited:	Aon Risk Services Pty Ltd v Australian National University (2009) 239 CLR 175 Auimatagi v Australian Building and Construction Commissioner (2018) 363 ALR 246; [2018] FCAFC 191 Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2018) 350 ALR 190; [2018] HCA 3 Australian Building and Construction Commissioner v Hall (2018) 277 IR 75; [2018] FCAFC 83 Australian Building and Construction Commissioner v Upton (The Gorgon Construction Case) (2017) 270 IR 190; [2017] FCA 847 Australian Licensed Aircraft Engineers Association v International Aviation Services Pty Ltd (2011) 193 FCR 526 Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500 Briginshaw v Briginshaw (1938) 60 CLR 336 Cigarette & Gift Warehouse v Whelan [2019] FCAFC 16 Commonwealth Bank of Australia v Finance Sector Union of Australia (2006) 154 IR 467; [2006] FCA 1048 Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Competition and Consumer Commission (2007) 162 FCR 466 Construction, Forestry, Mining & Energy Union v Pilbara Iron Company (Services) Pty Ltd (No 3) [2012] FCA 697 Construction, Forestry, Mining and Energy Union v Anglo Coal (Dawson Services) Pty Ltd (2015) 238 FCR 273 Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (2014) 253 CLR 243 Dafallah v Fair Work Commission (2014) 225 FCR 559 Drabsch v Switzerland General Insurance Co Ltd (unreported, Supreme Court of New South Wales, 16 October 1996) Esso Australia Pty Ltd v The Australian Workers’ Union (2016) 245 FCR 39 Fair Work Ombudsman v Construction, Forestry, Maritime, Mining and Energy Union (The Hutchinson Ports Appeal) [2019] FCAFC 69 Hollis v Vabu Pty Ltd (2001) 207 CLR 21 Jeans v Commonwealth Bank of Australia Ltd (2003) 204 ALR 327; [2003] FCAFC 309 Kakavas v Crown Melbourne (2013) 250 CLR 392 Maritime Union Authority v Geraldton Port Authority (1999) 93 FCR 34 Maritime Union of Australia v Fair Work Ombudsman [2015] FCAFC 120 National Tertiary Education Industry Union v Commonwealth (2002) 117 FCR 114 New South Wales v Lepore (2003) 212 CLR 511 Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (No 3) (1998) 195 CLR 1 Prince Alfred College Inc v ADC (2016) 258 CLR 134 Qantas Airways Ltd v Australian Licenced Aircraft Engineers Association (2012) 202 FCR 244 RailPro Services Pty Ltd v Flavel (2015) 242 FCR 424 Sayed v Construction, Forestry, Mining and Energy Union (2015) 149 ALD 88; [2015] FCA 27 Seven Network (Operations) Ltd v Communications, Electrical, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (2001) 109 FCR 378 Shea v TRUenergy Services Pty Ltd (No 6) (2014) 242 IR 1; [2014] FCA 271 Squires v Flight Stewards Association of Australia (1982) IR 155 State of Victoria (Office of Public Prosecutions) v Grant (2014) 246 IR 441; [2014] FCAFC 184 Tattsbet Ltd v Morrow (2015) 233 FCR 46 Transport Workers Union of Australia v No Fuss Liquid Waste Pty Ltd (2011) FCA 982 Western Union Business Solutions (Australia) Pty Ltd v Robinson [2019] FCAFC 181 Whelan v Cigarette & Gift Warehouse Pty Ltd (2017) 275 IR 285; [2017] FCA 1534
	Salmond JW, Law of Torts, (Stevens and Haynes, 1907)
Date of hearing:	8–12, 15–19, 22–26, 29–30 October 2018 1–2 November 2018
Registry:	Queensland
Division:	Fair Work Division
National Practice Area:	Employment & Industrial Relations
Category:	Catchwords
Number of paragraphs:	666
Counsel for the Applicant:	Ms L Willson
Solicitor for the Applicant:	Parker Simmonds
Counsel for the Respondent:	Mr J Bourke QC with Ms R Sweet
Solicitor for the Respondent:	King & Wood Mallesons

ORDERS

		QUD 234 of 2017
BETWEEN:	KATHERINE MARILLA MORTON Applicant
AND:	COMMONWEALTH SCIENTIFIC AND INDUSTRIAL RESEARCH ORGANISATION Respondent

JUDGE:	RANGIAH J
DATE OF ORDER:	29 OCTOBER 2019

THE COURT DECLARES THAT:

1. The respondent contravened s 340(1) of the Fair Work Act 2009 (Cth) by the action of its employee, Heather Campbell, on about 3 August 2015, in failing to comply with the requirements of the Grievance Procedures under the CSIRO Enterprise Agreement 2011–2014 to perform her duties with professionalism when dealing with a complaint made by the applicant against Gavin Drury.

THE COURT ORDERS THAT:

2. The respondent pay the applicant $1,000 by way of compensation for its contravention of s 340(1) of the Fair Work Act.

3. The parties provide written submissions upon the questions of any penalty, other orders and costs on dates to be fixed.

4. The proceeding is otherwise dismissed.

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

REASONS FOR JUDGMENT

TABLE OF CONTENTS

THE POSITIONS OF DR MORTON AND THE RELEVANT CSIRO EMPLOYEES	[6]
SUMMARY OF DR MORTON’S CLAIMS	[21]
Claim 1A	[22]
Dr Glencross	[22]
Dr Preston	[22]
Dr Cook	[22]
Claim 1	[22]
Claim 2	[22]
Claim 3	[22]
Claim 4	[22]

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