James v WorkPower Inc [2018] FCA 2083

James v WorkPower Inc [2018] FCA 2083

Leave should be granted because the applicant’s claims are reasonably arguable, are not fanciful, and the asserted factual or legal differences over the wage assessment tool and industrial instrument are not so plain as to warrant precluding the proceeding at the interlocutory stage; such matters are to be resolved at trial, not at the leave stage.

Jurisdiction
Australia
Judgment Date
21 December 2018
Procedural Posture
Application for Leave to Commence Proceeding Under Human Rights Law / Interlocutory; Application for Leave to Commence Proceeding Under S 46 Po(3 A) of the Australian Human Rights Commission Act 1986 (cth)
Outcome
Leave granted to applicant to make application alleging unlawful discrimination; orders made regularising the proceeding and setting timetable for filing outlines of case and response; proceeding to case management.
Legal Topics
['disability Discrimination' 'leave to Commence Proceedings' 'fair Work Instruments' 'wage Assessment Tools' 'jurisdictional Limits of Federal Court' 'australian Human Rights Commission Procedures']
['human Rights Law' 'administrative Law' 'discrimination Law'] ['disability Discrimination' 'leave to Commence Proceedings' 'fair Work Instruments' 'wage Assessment Tools' 'jurisdictional Limits of Federal Court' 'australian Human Rights Commission Procedures']

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Procedural Posture

Application for Leave to Commence Proceeding Under Human Rights Law / Interlocutory; Application for Leave to Commence Proceeding Under S 46 Po(3 A) of the Australian Human Rights Commission Act 1986 (cth)

Legal Issues

  1. 1 ['Whether leave should be granted to commence a proceeding alleging unlawful discrimination otherwise barred by s 46PO(3A) of the Australian Human Rights Commission Act 1986 (Cth)' 'Whether the complaint is reasonably arguable and not fanciful' 'Whether the wage assessment tool used by respondent amounts to unlawful discrimination' 'Whether the application exceeds the scope of the complaint to the Australian Human Rights Commission' 'Which industrial instrument and wage assessment tool applied to the applicant’s employment']

Ratio Decidendi

Leave should be granted because the applicant’s claims are reasonably arguable, are not fanciful, and the asserted factual or legal differences over the wage assessment tool and industrial instrument are not so plain as to warrant precluding the proceeding at the interlocutory stage; such matters are to be resolved at trial, not at the leave stage.

Court Disposition

Leave granted to applicant to make application alleging unlawful discrimination; orders made regularising the proceeding and setting timetable for filing outlines of case and response; proceeding to case management.

Orders

  • ['Leave be granted to the applicant to make application to this Court pursuant to s 46PO(1) of the Australian Human Rights Commission Act 1986 (Cth).' 'The originating application filed on 13 April 2018 be treated as filed with leave of the Court pursuant to s 46PO(3A) of the Australian Human Rights Commission Act...