Williams v Roads and Traffic Authority of New South Wales [2008] NSWADT 31

CITATION: Williams v Roads and Traffic Authority of New South Wales [2008] NSWADT 31

DIVISION: Equal Opportunity Division

APPLICANT Neville Williams PARTIES: RESPONDENT Roads and Traffic Authority of New South Wales

FILE NUMBER: 071053

HEARING DATES: 24 September 2007

SUBMISSIONS CLOSED: 24 September 2007

DATE OF DECISION: 17 January 2008

BEFORE: Hennessy N - Magistrate (Deputy President)

CATCHWORDS: Application for leave to proceed

MATTER FOR DECISION: Preliminary

Administrative Decisions Tribunal Act 1997 LEGISLATION CITED : Anti-Discrimination Act 1977 National Parks and Wildlife Act 1974

CASES CITED: Xu v Sydney West Area Health Service [2006] NSWADT 3

E Raper, barrister REPRESENTATION: K Eastman, barrister

ORDERS: Leave is refused.

REASONS FOR DECISION Introduction 1 Mr Williams is an Aboriginal indigenous heritage consultant. He is asking for the Tribunal's permission to go ahead with a complaint of race discrimination against the Roads and Traffic Authority of New South Wales (RTA). Mr Williams provided advice and other services to the RTA in relation to the impact of a proposed road construction on Aboriginal places and objects. He was paid for some of these services, but not for others. He says that non-Aboriginal people were paid for services they provided which were comparable to the services he provided. The President of the Anti-Discrimination Board (ADB) declined the complaint as lacking in substance. When that happens, section 96 of the Anti-Discrimination Act 1977 (AD Act) requires the complainant to obtain the Tribunal's permission before the complaints can go ahead. 2 The main issue in determining whether leave should be granted is whether anything that the RTA did comes within the employment or contract worker provisions of AD Act. The RTA said that Mr Williams was never offered employment, nor did the RTA ever employ him. Consequently, their conduct in relation to Mr Williams is not covered by any of the substantive provisions of the AD Act and the question of whether that conduct was discriminatory on the ground of race, does not arise. Mr Williams said that he was an applicant for employment, an employee and/or a contract worker and that the RTA discriminated against him on the ground of his race. Reasons ADB declined complaint 3 The President of the ADB declined Mr Williams' complaint on the basis that: The information on hand suggests that the Aboriginal registrants of the Coolac Bypass project were treated no less favourably than the other stakeholders involved in community consultations on the project. I am of the view that Mr Williams misconceives his complaint by comparing the Aboriginal registrants of the project with the specialist consultants contracted by the RTA. The information on hand does not support a reasonable inference being drawn that the short term agreement proposed by the complainant for the employment of Aboriginal consultants was refused by the respondents on the ground of race. The information on hand suggests that the type of work proposed by the complaint in the short term agreements had not been sought or offered by the respondent and as such, may fall outside the employment provisions of the Act. Approach to leave applications 4 In Xu v Sydney West Area Health Service [2006] NSWADT 3, the Tribunal set out its approach to determining applications for leave under section 96. I adopt those principles in relation to this case, especially the points made at [17] and [18]. In summary, the applicant needs to satisfy the Tribunal that there is a substantial reason for leave to be granted including that the complaint has reasonable prospects of success. To have reasonable prospects of success the conduct must be capable of coming within either the employment provisions in section 8 of the AD Act or the contract worker provisions in section 10. Background 5 Legal framework. The background to this complaint is that in 2005 the RTA was assessing the cultural and environmental impact of a proposed road construction called the "Hume Highway Coolac Bypass Project". The National Parks and Wildlife Act 1974 (NPW Act) requires organisations such as the RTA to obtain a permit before disturbing or destroying Aboriginal places or objects. The former Department of Environment and Conservation (DEC) developed a document entitled "Interim Community Consultation Requirements for Applicants (December 2004)". These Guidelines set out the requirements for the RTA and other applicants to consult with the Aboriginal community as part of the preparation of an application for a permit under the NPW Act. If the applicant wishes to destroy an Aboriginal place or object, it must prepare a Cultural Heritage Report in consultation with Aboriginal people and submit the report with the application for a permit to the Director General of DEC. 6 Community consultation process. The first process envisaged by the Guidelines is the community consultation process. The assessment process allows Aboriginal people to comment on the cultural significance of places and objects and the impact of any proposal as well as to suggest measures which may mitigate any loss or damage. The Guidelines state that where Aboriginal people or organisations register their interest and participate in this way, the DEC "does not require that the proponent (in this case the RTA) remunerate individuals or groups providing feedback on proposed cultural or archaeological methodology". The RTA nevertheless had a policy of reimbursing reasonable travel and accommodation expenses. Those involved in this process were covered by RTA insurance. 7 Service provision. The second process envisaged by the Guidelines is the engagement of "service providers". The Guidelines state that Aboriginal people may participate in this process if they have specialist skills or knowledge including Aboriginal assessment and advisory services and archaeological services. With respect to service providers, the Guidelines state that: DEC anticipates that in some instances there will be multiple offers from suitably qualified, skilled or experienced Aboriginal people. DEC does not require all such people to be engaged, as the number and type of service providers to be engaged is a matter for proponents to determine. The focus should be on improving the outcome of the assessment process and may require some form of competitive selection by the proponent. DEC does not have or seek a role in the determination of fees or other terms of engagement for services providers. This is a contractual matter between the proponent and service providers. However, it is recommended that the proponent should ensure that the engagement of service providers is through a written agreement or contract that addresses all of the following: The services to be provided Roles and responsibilities of the parties Payment terms. 8 The RTA engaged service providers through separate organisations which held Workers Compensation and Public Liability insurance. Aboriginal people were engaged through these organisations to provide cultural heritage advice and to provide labour to assist archaeological investigations. 9 Participation in community consultation process. In accordance with the Guidelines, Mr Williams registered his interest as an Aboriginal person and as a member of the Mooka Traditional Owners Council. As part of the consultation process, he attended an information day on 25 June 2005. He also attended several consultation meetings (on 3 April, 5 September, 3 October and 25 October 2006) where recommendations were made about the content of the Cultural Heritage Report. He complains that he was not paid for these attendances. 10 Services provided by Mr Williams. As well, Mr Williams was paid an hourly rate for various services he performed. For example, in August and September 2005, he participated in a "walk through" of the site with archaeologists employed by the RTA. He was paid an hourly rate for this work and his expenses were also paid. He subsequently prepared a report, for which he was not paid. In July to October 2006 archaeological investigations took place at the site of the proposed Coolac by pass. Mr Williams said he participated in this work. Before he did this work the RTA told him that it would employ him through an organisation, which had the relevant insurance cover. He used an organisation called Yurwang Gudana Consultancy. He was paid an hourly rate plus expenses. He said that as well as providing labour, he provided expert cultural knowledge and should have been paid for that as well. Despite being employed through an organisation, he said that he considered his employer to be the RTA. 11 Offer of services. On 21 February 2006 the Yurwang Gundana Consultancy submitted to the RTA a short term Agreement for Engagement of Aboriginal Consultant – to provide Aboriginal cultural heritage representation and advice in relation to the protection and preservation of culturally significant sites, places and artefacts. Mr Williams signed the Agreement on behalf of the organisation. The RTA replied advising that it did not agree to the terms of the Agreement and pointing out that payment for participation in the assessment process was limited to situations involving the provision of specialist cultural knowledge and or provision of services to assist others, such as archaeologists engaged by the RTA. Unlawful conduct under the AD Act 12 The AD Act makes certain conduct unlawful if it is discriminatory on the ground of race. The RTA's principle submission was that none of the conduct alleged by Mr Williams is in breach of the AD Act because regardless of whether or not it is discriminatory on the ground of race, it does not come within an area of activity covered by the AD Act. Mr Williams alleged that the RTA's conduct came within the provisions of section 8 and or section 10. Those provisions are set out below: Discrimination against applicants and employees (1) It is unlawful for an employer to discriminate against a person on the ground of race: (a) in the arrangements the employer makes for the purpose of determining who should be offered employment, (b) in determining who should be offered employment, or (c) in the terms on which the employer offers employment. (2) It is unlawful for an employer to discriminate against an employee on the ground of race: (a) in the terms or conditions of employment which the employer affords the employee, (b) by denying the employee access, or limiting the employee's access, to opportunities for promotion, transfer or training, or to any other benefits associated with employment, or (c) by dismissing the employee or subjecting the employee to any other detriment. (3) Subsections (1) and (2) do not apply to employment for the purposes of a private household. Discrimination against contract workers It is unlawful for a principal to discriminate against a contract worker on the ground of race: (a) in the terms on which the principal allows him or her to work, (b) by not allowing him or her to work or continue to work, (c) by denying him or her access, or limiting his or her access, to any benefit associated with the work in respect of which the contract with his or her employer is made, or (d) by subjecting him or her to any other detriment. 13 Section 4 defines "contract worker" to mean "an employee who, under a contract of employment performs work for an employer who has undertaken to perform that work for another person." Particulars of the allegedly unlawful acts 14 Summary. Mr Williams says he was discriminated against on the ground of his race in three ways: by not being paid for the specialist advice he gave during the consultation process; by being underpaid for the services he performed for the RTA and by being refused employment with the RTA on the basis of his Agreement for Engagement of Aboriginal Consultant. The period of the complaint is from February to October 2006. It is not appropriate for the Tribunal to make final determinations when considering whether to grant leave. However, the prospects of success of the complaint must be considered. 15 Participation in the consultation process. In order for the RTA's failure to pay Mr Williams for participating in the consultation process to be unlawful, he must have been an employee of the RTA when engaging in that process. The race discrimination provisions of the AD Act do not cover volunteers and other unpaid workers. The NPW Act does not establish an employment relationship between a proponent such as the RTA and a person who participates in consultations. Mr Williams was not entitled to be paid for that participation under the Guidelines and was only reimbursed for travelling and accommodation expenses. There was no evidence of an oral or written employment contract with the RTA to provide cultural advice during the consultation process and Mr Williams was not obliged to participate in the consultation process. His participation was akin to that of a volunteer. In those circumstances, the failure by the RTA to pay him for attending the meetings is unlikely to come within any of the provisions of section 8 of the AD Act. 16 Underpayment for the services he performed. Mr Williams was engaged through a separate organisation to perform certain services for the RTA. He was paid an hourly rate for those services but says that he should have been paid more because he was providing expert cultural knowledge as well as labour. Mr Williams said that he considered his employer to be the RTA. The position description for "Assistant to Archaeologist During section 87 Investigations for Coolac Bypass" states that: All workers will be required to assist the Archaeologist in the various physical fieldwork activities associated with sub-surface testing program as directed by the Archaeologist. These activities will include, but are not limited to hand excavation and wet sieving of site material. All workers must be fit to undertake manual labour tasks for the period required. 17 The RTA had a policy that where persons were engaged to provide services they had to do so through an organisation. Accordingly, the RTA submitted that Mr Williams was never an employee of the RTA. That is a strongly arguable submission. Alternatively, Mr Williams submitted that he was a contract worker and the RTA was the principal. It is unlawful, pursuant to section 10(a) and (d), for a principle to discriminate against a contract worker on the ground of race in the terms on which the principal allows him to work or by subjecting him to any other detriment. Assuming that Mr Williams has reasonable prospects of proving that he was a contract worker, his position description specifies that he is to perform physical fieldwork. It does not mention the provision of cultural knowledge or advice. It is highly unlikely that not being paid for providing cultural advice would be regarded as a detriment when it was not part of Mr Williams' position description to provide that advice. 18 Refusal to offer employment. Mr Williams alleges that the RTA refused to employ him on the terms he suggested in his proposal dated 21 February 2006 and, presumably, that that refusal is a determination that he should not be offered employment: section 8(1)(b). The letter from the RTA in reply to Mr Williams' proposal states that there are two capacities in which Aboriginal people may participate in the process. The first is through the consultation process for which the person will be reimbursed for his or her travel and accommodation expenses only. The second is by providing services for which they would be paid an hourly rate. The two kinds of services, which the RTA envisaged, were the provision of labour to assist archaeological investigations and the provision of cultural heritage advice as input to the report on Aboriginal cultural heritage. The RTA considered that the appropriate rate for assisting the archaeologists was $350 per day and the appropriate rate for giving cultural heritage advice was $65 an hour. Mr Williams' proposal was for payment at the rate of $100 per hour for field work (surface and sub-surface surveys) and document review. 19 The RTA's letter made the following comment in relation to the provision of cultural heritage advice: Cultural heritage advice on the findings of the archaeological work will be invited from each registrant during the work. Attendance at the site on particular days for that purpose will be invited. The registrant will be paid for this service as set out above. Your participation in the consultation for the Coolac Bypass will be invited as set out above, and is welcomed. However RTA, as the proponent, reserves the right to set the terms of engagement for paid services in accordance with reasonable industry practice. 20 This letter could arguably be regarded as relating to the arrangements the employer makes for the purpose of determining who should be offered employment: section 8(1)(a). It is also arguable that it relates to the terms on which employment is to be offered: section 8(1)(c). However there are two difficulties with Mr Williams' submission that the RTA has breached either of these provisions. Firstly, the RTA did not envisage engaging individuals to work as employees of the RTA. Rather the engagement was to be through certain kinds of organisations. In those circumstances, Mr Williams would be a contract worker and would have to bring himself within the provisions in section 10. Those provisions are not as broad as those relating to employees in section 8. Secondly, the RTA's letter makes it clear that cultural heritage advice on the findings of the archaeological survey, will be invited and will be remunerated on the basis of the terms of engagement for paid services set by the RTA. In those circumstances, declining to accept Mr Williams' proposal to engage in work at rates of pay in excess of that which the RTA had determined was reasonable is highly unlikely to come within the provisions of section 8. Conclusion 21 In broad terms, Mr Williams' complaint is that he and other Aboriginal people who are doing paid and unpaid work for the RTA, and not being remunerated as generously as non-Aboriginal people, including archaeologists. According to Mr Williams, the value of the work he and others are performing is at least as high as the value of the work being performed by non-Aboriginal people. Unfortunately for Mr Williams, the AD Act is not drafted in such a way that allows the Tribunal to make this comparison. Volunteers and other unpaid workers are not covered. There is nothing in the AD Act that obliges an employer to remunerate an employee or contract worker for work that is not mentioned in the position description. Finally, while the arrangements an employer makes for determining who should be offered employment covers the entire recruitment process, it does not extend to people applying to be contract workers. Neither does that provision oblige the RTA to accept an offer to work on terms, which are not the same as those it is offering to other applicants. Orders 22 Leave is refused.