Administrative Decisions Tribunal New South Wales Medium Neutral Citation: Finlay v Roads and Maritime Services [2013] NSWADT 238 Hearing dates: 8 October 2013 Decision date: 08 October 2013 Jurisdiction: Equal Opportunity Division Before: Magistrate N Hennessy, Judicial Member Decision: The applicant's application for the Tribunal to register a term of the conciliation agreement is refused. Catchwords: ANTI-DISCRIMINATION - Registration of terms of agreement - whether provision applicant sought to register is a 'term' of the conciliation agreement Legislation Cited: Anti-Discrimination Act 1977 Category: Principal judgment Parties: David Finlay (Applicant) Roads and Maritime Services (Respondent) Representation: D Finlay (Applicant in person) Ashurst Australia (Respondent) File Number(s): 131088 reasons for decision 1Mr Finlay has applied for a Deed of Release to be registered by the Tribunal. The background to this application is that Mr Finlay complained to the Anti-Discrimination Board that his employer, Roads and Maritime Services, was responsible for another employee sexually harassing and victimising him. The Anti Discrimination Board convened a Conciliation Conference and on 19 March 2013. Mr Finlay and his employer signed a Deed of Release. 2The operative provisions of the Deed are set out under cl 1. The Deed states that, "Without admission of liability, RMS agrees: (a) to pay Mr Finlay an amount (which I will not disclose) and (b) to sponsor Mr Finlay's fourth and final subject of his graduate diploma, pavement technology." 3Clause 1.2(b) is the provision which Mr Finlay has sought to register and I will quote in full 1.2(b) which is the subject of these proceedings. Mr Finlay also acknowledges that arising from the complaint, RMS . . . (b) offered Mr Finlay permanent, alternative employment in the role of project officer, Wollongong regional office. Mr Finlay accepted this offer and has been performing this role since August 2012. 4On 10 September 2013, Mr Finlay lodged an application with the Tribunal for registration of the conciliation agreement, saying that his permanent position of project officer at the Wollongong regional office is being abolished. He clarified at the hearing today that no final decision has been made as to whether the position will be abolished. He and another officer in a similar position have both been told that their positions may be abolished. Ms Sutherland, representing RMS, confirmed that no final decision has been made about the positions yet. 5Under s 91A of the Anti-Discrimination Act: "A written record is to be prepared by the parties and signed by or on behalf of each of them of any agreement reached following conciliation with respect to the subject matter of the complaint if any party requests the making of such a record within 28 days after the agreement is reached." 6Subsection (6) provided that: "If a party to a recorded agreement is of the opinion that any other party has not complied with the terms of the agreement, the party may, not later than six months after the date of the agreement, apply to the Tribunal to have the agreement registered." 7The critical provision for the purposes of these proceedings, is s 91A(8): "If the member of the Tribunal who hears the application is satisfied that a party to the agreement has not complied with the terms of the agreement, the member is to register those provisions of the agreement that, in the exercise of the Tribunal's jurisdiction, could have been the subject of an order in proceedings relating to a complaint." 8There are two reasons why the Tribunal cannot register Clause 1.2(b) of the Deed. The first and most definitive reason is that that clause is not a term of the agreement. As Ms Sutherland, representing RMS pointed out, that provision does not oblige RMS to do anything that it has not already done. The position was offered to Mr Finlay and it was accepted. The terms of the deed merely acknowledge that that is the situation. Clause 1.2(b) does not oblige RMS to continue to allow Mr Finlay to stay in that position. 9Secondly, RMS has not failed to comply with the term. Even if cl 1.2(b) is a term of the agreement, RMS has not failed to comply with it because no final decision has been made in relation to the position. I accept that Mr Finlay has applied to the Tribunal prematurely in order to avoid being outside the six month time limit for the lodging of such an application. One of the requirements of registration is that an application must be made within that time: AD Act, s 91A(6). Mr Finlay, quite understandably, has brought these proceedings prior to any final decision being made because he did not want to be outside the six month period, but in doing so he has jumped the gun, so to speak, because a final decision has not been made and therefore there is no evidence that a term, if it is a term, has not been complied with. 10In those circumstances I refuse the application. ********** 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: 25 October 2013