Administrative Decisions Tribunal New South Wales Medium Neutral Citation: Liria v Papuan Oil Search Ltd [2012] NSWADT 73 Hearing dates: 28 March 2012 Decision date: 26 April 2012 Jurisdiction: Equal Opportunity Division Before: Magistrate N Hennessy, Deputy President Decision: Leave for the complaint of race discrimination to proceed is refused Leave for the complaint of victimisation to proceed is refused. Catchwords: LEAVE - complaints of race discrimination and victimisation declined as lacking in substance - whether fair and just to grant leave for complaints to proceed - extra-territorial effect of Anti-Discrimination Act 1977 - merits of complaints Legislation Cited: Anti-Discrimination Act 1977 Administrative Decisions Tribunal Act 1997 Interpretation Act 1987 Cases Cited: Jones and Anor v Ekermawi [2009] NSWCA 388 Wanganui-Rangitikei Electric Power Board v Australian Provident Society (1934) 50 CLR 581 Category: Principal judgment Parties: Luke Liria (Applicant) Papuan Oil Search Ltd (Respondent) Representation: L Liria (Applicant in person) Harmers Workplace Lawyers (Respondent) File Number(s): 111132 REasons for decision Introduction 1The issue in these proceedings is whether the Tribunal should give Mr Liria permission for his complaints of race discrimination and victimisation under the Anti-Discrimination Act 1977 (AD Act) to proceed. The complaints, which are against his former employer, Papuan Oil Search Ltd (Oil Search), were declined by the President of the Anti-Discrimination Board. As Mr Liria lives in Papua New Guinea, the application for leave was determined 'on the papers': Administrative Decisions Tribunal Act 1997, s 76. 2The Tribunal has discretion to grant or refuse leave for the complaints to go ahead and will be guided by what is fair and just in the circumstances: Jones and Anor v Ekermawi [2009] NSWCA 388. When deciding whether to grant leave, the Tribunal may have regard to the grounds on which the President may decline a complaint under s 92(1) of the AD Act, including that the conduct, if proven, would not disclose a contravention of the AD Act. I have decided to refuse leave for the complaints to proceed. Race discrimination complaint 3Mr Liria, who is a Papua New Guinea (PNG) national, had been working for Papuan Oil Search Ltd in Sydney since March 2006. He alleges that an unplanned position was created in the Port Moresby office to which he was forced to move. While he had no issue about returning to work in PNG, he objected to the fact that he was being offered a package which he says was worth only 20% to 30% of the package he had been receiving in Sydney. He says that an Oil Search employee working in PNG as an expatriate, who relocated to Australia, was allowed to retain an equivalent package whereas PNG nationals who return to work in PNG receive a reduced package. While Mr Liria set out a detailed history of his employment and his grievances, he made it clear that the terms and conditions of the position he was offered in PNG was the basis for his race discrimination complaint. 4According to Oil Search, remuneration packages are based on whether the employee's point of origin is PNG, not their nationality. Oil Search said that ex- patriates employed in PNG are offered higher remuneration packages to entice them to leave their country of origin and work in developing countries. Mr Liria's situation was that he was being repatriated to his point of origin in PNG following the completion of a fixed term assignment in Australia. That contention is supported by the content of a letter dated 21 January 2010 from Oil Search to Mr Liria advising him that his fixed term employment contract had been extended for one year and was due to expire on 21 January 2011. The letter went on to say that: Upon completion of this fixed term period, we have agreed to transfer you into a field based role in the PNG ICT team. The exact details of your PNG based role will be detailed in a new contract of employment which will be issued by Oil Search (PNG) Limited prior to 31 December 2010. Full repatriation support will be available to you and your family to support you in returning to PNG. 5Mr Liria advised Oil Search in July 2010 that he was no longer interested in a PNG ICT (Information Communication Technology) field technical role. Oil Search attempted to identify an alternative PNG based position and he was offered the position of Information Communications Technology, (ICT) Port Moresby Team Leader. That position was with Oil Search (PNG) Limited, a separate company from Papuan Oil Search Ltd. 6According to Oil Search, it is company practice in relation to employees returning to work in PNG to pay an employee 50% of the Australian market remuneration and 50% of the PNG market remuneration in recognition of the overseas experience. The position offered to Mr Liria was based on this blended approach to salary. Mr Liria declined the offer and his employment was terminated on 31 January 2011. Victimisation complaint 7Mr Liria alleges that he was "threatened with termination" as soon as he raised the issue of the difference in terms and conditions for PNG nationals compared to expatriates. Oil Search says that the facts do not support Mr Liria's allegation. Legal basis for the complaints 8The only material before the Tribunal apart from written submissions from the parties was the content of the President's Report. Based on those documents, it appears that Mr Liria is alleging that his employer has breached s 8 and s 50 of the AD Act. Section 8 makes discrimination against applicants and employees unlawful in certain circumstances. 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. 9Race discrimination is defined in s 7 (1) A person ( "the perpetrator") discriminates against another person ( "the aggrieved person") on the ground of race if, on the ground of the aggrieved person's race or the race of a relative or associate of the aggrieved person, the perpetrator: (a) treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person of a different race or who has such a relative or associate of a different race, or (b) segregates the aggrieved person from persons of a different race or from persons who have such a relative or associate of a different race, or (c) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons not of that race, or who have such a relative or associate not of that race, comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply. (2) For the purposes of subsection (1) (a) and (b), something is done on the ground of a person's race if it is done on the ground of the person's race, a characteristic that appertains generally to persons of that race or a characteristic that is generally imputed to persons of that race. 10I understand Mr Liria's complaint to be one of 'direct' discrimination as defined in s 7(1)(a). Race is defined in s 4 to include "colour, nationality, descent and ethnic, ethno-religious or national origin." 11Section 50 makes victimisation unlawful. (1) It is unlawful for a person ("the discriminator") to subject another person ("the person victimised") to any detriment in any circumstances on the ground that the person victimised has: (a) brought proceedings against the discriminator or any other person under this Act, (b) given evidence or information in connection with proceedings brought by any person against the discriminator or any other person under this Act, (c) alleged that the discriminator or any other person has committed an act which, whether or not the allegation so states, would amount to a contravention of this Act, or (d) otherwise done anything under or by reference to this Act in relation to the discriminator or any other person, or by reason that the discriminator knows that the person victimised intends to do any of those things, or suspects that the person victimised has done, or intends to do, any of them. (2) Subsection (1) does not apply to the subjecting of a person to a detriment by reason of an allegation made by the person if the allegation was false and not made in good faith. 12Although the victimisation complaint was not clearly articulated I have assumed that the basis of Mr Liria's complaint is that when he objected to being paid less in the role in PNG, Oil Search subjected him to a detriment, namely terminating his employment. Jurisdiction 13Oil Search submitted that Mr Liria's complaint of race discrimination does not fall within the Tribunal's jurisdiction. 14The NSW Constitution gives parliament power to make laws "for the peace, welfare and good government of New South Wales in all cases whatsoever". An Act, including the AD Act, is to be construed "as operating to the full extent of, but so as not to exceed, the legislative power of Parliament: Interpretation Act, s 31. One limitation on Parliament's legislative power is that there must be a sufficient territorial connection with New South Wales. That limitation is expressed in the case law and in s 12 of the Interpretation Act 1987. 12 References to New South Wales to be implied (1) In any Act or instrument: (a) a reference to an officer, office or statutory body is a reference to such an officer, office or statutory body in and for New South Wales, and (b) a reference to a locality, jurisdiction or other matter or thing is a reference to such a locality, jurisdiction or other matter or thing in and of New South Wales. 15While this provision applies subject to any contrary intention, there is no contrary intention expressed in the AD Act: Interpretation Act, s 5. 16Mr Liria's complaint of race discrimination appears to be that Oil Search has breached s 8(c) of the AD Act in that it has discriminated against him on the ground of his race in relation to "the terms on which the employer offers employment." (The termination itself appears to be part of the victimisation complaint, rather than the race discrimination complaint.) Section 8(c) is subject to the geographical limitation expressed in s 12 of the Interpretation Act. 17The offer of employment was made in New South Wales in relation to work which was to be performed outside New South Wales. A contract was never entered into but the proposed terms and conditions of employment were provided as part of the President's Report. Those proposed terms make an offer of employment with Oil Search (PNG) Limited, a separate company incorporated in PNG. Item 44 of the proposed terms and conditions states that: These terms and conditions of employment will be governed, interpreted and enforced in accordance with the laws of the Independent State of Papua New Guinea. 18The subject matter of the dispute is the terms of the unsigned contract. In Wanganui-Rangitikei Electric Power Board v Australian Provident Society (1934) 50 CLR 581 at 612-613 McTiernan J said that the phrase "in and of" New South Wales imports both situation and a close identification of the matter or thing with New South Wales. Dixon J pointed out in the same case at 601, there is a presumption that statutory provisions do not apply to matters governed by foreign law. 19As a matter of principle, the proposed terms of a contract are governed by s 8(c) of the AD Act if those terms can be regarded as being "in and of" New South Wales. The terms of the contract, if signed, were to be applied to employment wholly outside New South Wales, by a company incorporated in PNG and were to be governed by the laws of PNG. In those circumstances, it is likely that if leave were given for this complaint to proceed, the Tribunal hearing the substantive matter would find that it had no jurisdiction. On that basis, leave is refused for the complaint of race discrimination to proceed. 20The same cannot be said in relation to the victimisation complaint. The subject matter of the victimisation complaint is the allegation that as a result of making complaining about race discrimination in the relation to the terms and conditions of the offer of employment, his employment was terminated. Both the making of that allegation and the termination of employment occurred in New South Wales. Merits of the victimisation complaint 21Assuming the Tribunal would have jurisdiction, the issue is whether, based on the merits of the complaint, it is fair and just to grant leave for it to proceed. 22Applying s 50 of the AD Act, Mr Liria would have to prove the following matters in order to substantiate the victimisation complaint: (1)That he alleged that Oil Search committed an act which, whether or not the allegation so states, would amount to a contravention of this Act (2)Oil Search subjected him to a detriment (3)the detriment was 'on the ground' that he had made the allegation in (1). 23Mr Liria's case is that he raised the issue of the difference in terms and conditions for PNG nationals compared with expatriates and alleged that those differences amounted to race discrimination. In order to come within the terms of s 50(1)(c) the allegation must "amount to a contravention" of the AD Act. I have found that it is highly likely that if leave were granted, a Tribunal hearing the allegation of race discrimination would find that the allegation does not amount to a contravention because it has no jurisdiction to entertain the complaint. On that basis it is also highly likely that if leave were granted for the victimisation complaint to proceed, a Tribunal hearing that complaint would not be satisfied that the allegation of race discrimination "would amount to a contravention" of the AD Act. 24In relation to the second element, termination of employment is a detriment. 25The third element of victimisation is that Oil Search terminated Mr Liria's employment 'on the ground that' he made a complaint of race discrimination. The material in the President's Report supports the view that Oil Search terminated Mr Liria's employment because he did not accept the offer of the position in PNG and his fixed term contract was due to expire on 31 January 2011. The letter offering Mr Liria the position in PNG makes that clear: Please note that should you decide not to accept this offer of continued employment, your ongoing employment with Papuan Oil Search will terminate on 31 January 2011 as per your signed extension to secondment agreement of 21 January 2010. 26If this matter were to proceed the Tribunal hearing it is likely to find that the ground for termination was not the fact that Mr Liria complained about the terms of the proposed contract of employment. Rather, it was the fact that his fixed term contract had come to an end and Mr Liria refused the offer of employment in PNG. Regardless of the reason for refusing the offer of employment in PNG, his employment would have been terminated. 27Mr Liria is highly unlikely to be able to prove either the first or the third elements of the victimisation complaint, as summarised at [22] above. For that reason, the victimisation complaint lacks merit and leave is refused. Orders (1)Leave for the complaint of race discrimination to proceed is refused. (2)Leave for the complaint of victimisation to proceed is refused. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 26 April 2012