Federal Court of Australia

Gillham v Melbourne Symphony Orchestra Pty Ltd [2025] FCA 458

ORDERS

THE COURT ORDERS THAT:

1.    The interlocutory application filed by the first and fourth respondents on 25 November 2024 be dismissed.

2.    There be no order as to costs.

3.    The proceeding be referred for case management to Judicial Registrar Edwards for settling of an efficient trial timetable.

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

REASONS FOR JUDGMENT

MORTIMER CJ

Introduction

1    The Court has determined the interlocutory application made by the Melbourne Symphony Orchestra and its Chief Operating Officer, Mr Guy Ross, should be dismissed. These are the Court’s reasons for those orders.

2    The applicant, Mr Jayson Gillham, is an international concert pianist. Last year in Melbourne, he was scheduled to perform one recital on 11 August 2024 and one concert on 15 August 2024, each with MSO. The alleged facts are that by agreement with MSO, he added a further piece to be played before the recital, a piece called Witness. MSO is the first respondent to this proceeding. Mr Ross is the fourth respondent to the proceeding.

1    The applicant performed Witness, at the recital on 11 August, but the concert scheduled for 15 August was cancelled by MSO. That was because prior to performing Witness, Mr Gillham made some introductory remarks to the audience to which MSO subsequently objected. Prior to playing Witness, it is not in dispute that the applicant said:

Over the last 10 months, Israel has killed more than one hundred Palestinian journalists. A number of these have been targeted assassinations of prominent journalists as they were travelling in marked press vehicles or wearing their press jackets. The killing of journalists is a war crime in international law, and it is done in an effort to prevent the documentation and broadcasting of war crimes to the world. In addition to the role of journalists who bear witness, the word Witness in Arabic is Shaheed, which also means Martyr.

2    The next day, 12 August 2024, MSO gave notice to the applicant that his contract was terminated. The facts surrounding how it was MSO and not another corporation, Symphony Services Australia Ltd, which was able to terminate his contract, are in dispute. The contract termination meant the applicant did not perform the concert. There is no dispute he was paid in full for the recital and the concert. Various statements were published by MSO and the parties’ pleadings allege a series of communications after 12 August. All these factual allegations are matters for trial.

3    The applicant claims he was treated unlawfully. In this proceeding he has claimed MSO took adverse action against him within the meaning of ss 340 and 342 of the Fair Work Act 2009 (Cth), by terminating his contract, sending communications to the public following the termination of the contract, imposing a condition on him that he make no “physical or verbal statement from the stage” if he was to be permitted to perform the concert, and in publishing a further public statement on its website. He says also that Mr Ross is liable as a person “involved in” MSO’s unlawful conduct pursuant to s 550(1) of the FW Act.

4    The applicant commenced this proceeding by way of originating application and statement of claim filed on 3 October 2024. On 8 October 2024, the matter came before the Court for case management. On Wednesday 9 October 2024, the Court made orders listing the matter for trial commencing 17 March 2025, to run for 5 days. That trial date was subsequently vacated by consent because of this interlocutory application by the respondents.

5    The parties were directed into mediation in November last year in an attempt to facilitate the resolution of the proceeding. Prior to the mediation occurring, on 25 November 2024, the present interlocutory application was filed by MSO and Mr Ross.

6    MSO and Mr Ross have applied for orders summarily dismissing the applicant’s proceeding, without a trial. They seek other orders in the alternative but all the orders they seek on their interlocutory application are designed to advance the proposition that the applicant’s case as outlined has no reasonable prospects of success and therefore should not be allowed to proceed to trial. Rather than require the parties to go to a full trial, MSO and Mr Ross submit the Court can and should deal with the applicant’s claims in a summary way, and dismiss them.

Contentions on the Interlocutory Application

7    When the proceeding was commenced, there were two other respondents. SSA was a respondent, in part because the written contract that exists about Mr Gillham’s performances is expressed to be between the applicant and SSA. On 16 October 2024 the applicant discontinued his claim against SSA and filed an amended originating application and statement of claim.

8    The applicant also named Sophie Galaise as the third respondent. Ms Galaise was the Managing Director of MSO at the time of the recital and the scheduled concert, and the alleged unlawful conduct. Ms Galaise was separately represented from MSO and Mr Ross. On the Friday before the hearing of the interlocutory application, the Court was notified that the applicant and Ms Galaise had reached an in-principle settlement, and orders would shortly be filed to reflect that settlement. On that basis, Ms Galaise was not required to appear and take part in the interlocutory hearing. On 3 April 2025, the Court ordered by consent that the proceeding as it related to Ms Galaise be dismissed.

9    The interlocutory hearing focused on the summary judgment application.

10    MSO and Mr Ross contend the applicant’s claim is bound to fail because he had no protected workplace right the infringement of which could ground a breach of s 340 of the FW Act. This was said to be because neither ss 18 nor 21 of the Equal Opportunity Act 2010 (Vic), on which the applicant seeks to rely, could be a relevant “workplace law” for the purposes of the applicable definition in s 12 of the FW Act.

11    In reply, the applicant contends for a different and wider construction of the phrase “workplace law” in s 12 of the FW Act, read in the context of the general protections provisions in Part 3-1, and the objects of the FW Act.

Consideration

12    There was no debate about the applicable principles for the Court’s consideration of a summary judgment application. There was also no debate that in substance the same principles applied as between s 31A and r 26.01. MSO and Mr Ross did also not advance any different arguments in respect of their reliance on the power in r 16.21(1)(e) to strike out all or part of a pleading on the ground that the pleading (relevantly) fails to disclose a reasonable cause of action. In other words, there were no different or distinct arguments advanced to justify a strike out of all or some of the pleading if the summary judgment application failed.

13    In relation to s 31A and r 26.01, I have summarised my approach in Plaintiff M83A/2019 v Morrison (No 2) [2020] FCA 1198 at [46]–[52] and rely on that approach, including by reference to the authorities there referred to. There was no dispute that generally the Court should approach its task under s 31A (and r 26.01) on the basis that “[w]here there are factual issues capable of being disputed and in dispute, summary dismissal should not be awarded to the respondent simply because the Court has formed the view that the applicant is unlikely to succeed on [a] factual issue”: Spencer v Commonwealth [2010] HCA 28; 241 CLR 118 at [25] (French CJ and Gummow J).

14    This is not a situation where the respondents rely on evidence which they contend is unanswerable or unanswered evidence of a fact fatal to the pleaded case and fatal to any case which might be propounded by permissible amendment: Spencer at [22].

15    In particular I emphasise what I said in Plaintiff M83A at [48]:

Despite the acknowledged broadening of the approach for summary dismissal brought about by s 31A, in Spencer v Commonwealth [2010] HCA 28; 241 CLR 118 at [25]-[26], French CJ and Gummow J also recognised a proceeding should not be summarily dismissed simply because the allegations in a proceeding challenge existing law, or involve questions of fact which would be difficult to prove. Indeed, Spencer itself involved allegations of this character, both as to law and fact. This is one reason it is important for Courts to be cautious in exercising summary dismissal powers. The law advances and develops though claims thought at the time to be novel, and which are sometimes made in circumstances of considerable controversy.

16    That observation assumes some significance here because the State and territory laws referred to in the definition of “workplace law” in s 12 of the FW Act and their interaction and engagement with the prohibitions in Division 3 of Part 3-1 and s 351 of the FW Act, have not received a great deal of judicial attention. Indeed when I asked counsel at various points during the hearing about whether authorities existed on certain aspects of the statutory framework, generally I was informed there were none that counsel had been able to find. The Court had been provided with a list of authorities exceeding 100 cases, but there were few dealing specifically with these provisions in terms of how they engaged with the State and territory legislation they expressly pick up. The authorities which do exist are not, in my respectful opinion, directly on point.

17    The parties’ submissions traversed a range of factual matters which it would not be appropriate for me to canvass in these reasons given the conclusions I have reached, and the orders the Court has made. The matter will go to trial in the usual way, and the facts will be determined on the basis of the evidence adduced at trial.

18    Properly however, senior counsel for MSO and Mr Ross made some concessions for the purposes of their current application. Some of these matters meant they did not press some of the written submissions filed in support of the interlocutory application. For the purposes of their current application they accepted:

(a)    Section 18 of the EO Act is a State law that “regulates the relationship between employers and employees” within the terms of s 12 of the FW Act.

(b)    The applicant’s status for the purposes of the FW Act (and the EO Act) is likely characterised as that of an independent contractor. Mr Gillham’s status as an independent contractor is admitted in their Defence. Whether to SSA or to MSO, or both remains a matter of debate. In turn this meant for the purposes of the interlocutory application, MSO and Mr Ross were prepared to accept that the applicant was an “employee” within the extended definition of that term in the EO Act, where by reason of s 4(1), arrangements with independent contractors are within the meaning of “employment”.

(c)    There is a triable issue whether, in entering into the contract it did with the applicant, SSA was acting as agent for MSO and not as principal.

19    Many submissions were directed to contentions about the proper characterisation of the relationships between the applicant, MSO and SSA. Arguments were made about the purported assignment to MSO by SSA of Mr Gillham’s written contract. This purported assignment is said to have occurred the day after the applicant’s speech at the recital. There was also considerable argument about whether there was an implied contract between MSO and the applicant. Or whether, as MSO and Mr Ross eventually properly conceded was arguable, another characterisation of the SSA contract was that it was made by SSA as agent with MSO. All these arguments will raise mixed questions of fact and law and should await trial. I say no more about them.

Proper construction of ss 12, 340 and 341 of the FW Act

20    In the present case, senior counsel for MSO and Mr Ross properly concentrated on what was obviously the argument most likely to reach the threshold for summary judgment: namely the proper construction of the term “workplace law” in s 341, read with the definition in s 12 of the FW Act.

21    Section 340(1) of the FW Act relevantly provides that:

(1)    A person must not take adverse action against another person:

(a)    because the other person:

(i)    has a workplace right; or

(ii)    has, or has not, exercised a workplace right; or

(iii)    …

(b)    to prevent the exercise of a workplace right by the other person.

22    Section 341(1) provides a definition of “workplace right”. Relevantly to the way the applicant puts his claims, that section provides that a person has a workplace right if the person is “entitled to the benefit of … a workplace law”.

23    “Workplace law” is in turn defined in the Dictionary in s 12 of the FW Act. A workplace law relevantly includes, at para (d) of the definition:

any other law of the Commonwealth, a State or a Territory that regulates the relationship between employers and employees (including by dealing with occupational health and safety matters).

24    The applicant contends that the EO Act is the source of an alleged workplace right “not to be discriminated against by MSO for (a) holding or expressing a political belief; or (b) engaging in political activity”. These are said to be the “benefits” to which the applicant was entitled under the EO Act, as a workplace law, when he was working with MSO on the recital and the concert.

25    At State level none of this is especially controversial. There is no doubt in certain circumstances the EO Act protects people from discrimination on the basis that they hold or express a political belief or engage in a political activity. That protection includes conduct occurring in or that is sufficiently connected to the workplace, and the protection extends at State level to common law employees, independent contractors and contract workers. Read with the definitions in s 4 of the EO Act, ss 18 and 21 of the EO Act deal with these categories of protected workers.

26    The argument on behalf of MSO and Mr Ross centres on to what extent the FW Act picks up these provisions and includes them in the protections offered under federal law.

27    The question is: is it sufficiently arguable that the FW Act picks up these protections in a way which captures the applicant’s circumstances, in terms of the relationships between him, SSA and MSO, accepting (as MSO and Mr Ross appeared to do for the purposes of their application) that the orchestral environment both in terms of rehearsal and performances, is a workplace?

28    For the purposes of the summary judgment application, the Court assumes:

(a)    the applicant can prove that the statement he made before playing the piece Witness was a statement of his political belief, and/or that in making that statement in the circumstances he did, the applicant was engaging in political activity; and

(b)    the treatment identified by the applicant (see [5] above) occurred because he held that political belief and/or engaged in that political activity.

29    MSO and Mr Ross did not dispute that these matters were all triable issues, requiring evidence and in the circumstances of the FW Act involved the application of the reverse onus in s 361 of the FW Act, which would be imposed on MSO and Mr Ross.

30    They say however, that the applicant’s construction of “workplace law” is untenable, and against authority. They contend that, by reason of the terms in s 12 and the definition of “workplace law”, s 340 of the FW Act only picks up the protections in the EO Act to the extent that a person is a common law employee.

31    It is common ground the applicant was not a common law employee of either MSO or SSA. As I have noted, for the purposes of this interlocutory application, MSO and Mr Ross accepted the applicant was an independent contractor, but to whom remained a matter for further evidence and argument.

32    Section 351 of the FW Act is a provision aimed squarely at discriminatory conduct in the workplace. It picks up State laws such as the EO Act. However, senior counsel for the applicant agreed that s 351 of the FW Act in its terms applies only to common law employers and employees. Therefore the applicant only relies on the protections in s 340.

The competing constructions

33    The applicant relies on:

(a)    the protection in s 340(1)(a)(i) and (ii)—that Mr Gillham had a workplace right; and that he had exercised his workplace right in presenting Witness and making the statement he did;

(b)    the terms of s 341(1)(a) concerning the nature of his workplace right, being his entitlement to the benefits of the political belief protections in the Victorian EO Act; and

(c)    the adverse action descriptions in items 3(a) and (b) of s 342, in relation to the conduct of MSO and Mr Ross.

34    MSO and Mr Ross submit that the EO Act may be, for the purposes of the definition in the Dictionary in s 12 of the FW Act, a “workplace law” because it does regulate the relationships between employers and employees. However, the EO Act is not a “workplace law” that gives Mr Gillham a “workplace right” because the meaning and application of “workplace law” in s 12 of the FW Act is restricted to common law employees. Mr Gillham is not a common law employee.

35    Section 335 of the FW Act provides that for the purposes of Div 3 of Part 3-1 of the FW Act (which includes ss 340-342):

In this Part, employee and employer have their ordinary meanings.

36    It is common ground that where the FW Act uses this phrase “ordinary meaning” this refers to the meaning comprehended by the common law: C v Commonwealth [2015] FCAFC 113; 234 FCR 81 at [36]; Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd [2022] HCA 1; 275 CLR 165 at [93] (Gageler and Gleeson JJ), [161] and [171] (Gordon J).

37    MSO and Mr Ross correctly submit that the FW Act adopts a specific definition of “employer and employee”, depending on which part of the legislative scheme is engaged. Section 12 of the FW Act provides that each of the words “employee” and “employer”

is defined in the first Division of each Part (other than Part 1-1) in which the term appears.

38    As the Notes to the definitions indicate, different parts of the FW Act employ different definitions.

39    For example, the FW Act provides some particular protections for textile, clothing and footwear outworkers, a vulnerable group of workers. Section 789AC describes the object of this Part as:

to eliminate exploitation of outworkers in the textile, clothing and footwear industry, and to ensure that those outworkers are employed or engaged under secure, safe and fair systems of work …

40    Then in s 789BB there is a deeming provision which includes contract workers as employees within the ordinary meaning of that term (otherwise applicable because of s 789AB in that Part), if they are, amongst other matters, working for a “Commonwealth outworker entity”.

41    I refer to this just as an example of the proposition that the legislative scheme of the FW Act is quite precise about what various aspects of that scheme mean when they use the terms “employer” and “employee”.

42    Other parts, and by far the majority of provisions, use the description “ordinary meaning” to define the relationships covered by these terms. Section 335 is an example.

43    However, s 340 does not operate principally on the terms “employer” and “employee”, unlike s 351. It is a wider prohibition than that. The actor, or putative contravener, need not be an employer, howsoever defined. Section 340(1) operates to prohibit certain conduct more widely:

(1)     A person must not take adverse action against another person:

(a)     because the other person:

(i)    has a workplace right; or

(ii)     has, or has not, exercised a workplace right; or

(iii)     proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right; or

(b)     to prevent the exercise of a workplace right by the other person.

[emphasis added]

44    The width of s 340(1) is then constrained by the table in s 342, which identifies a range of actors or putative contravenors who might engage in adverse action contrary to the prohibition in s 340(1). It is necessary for an applicant to bring their claim within one of these categories of adverse action for the prohibition in s 340 to be engaged.

45    The common denominators are that all these actors have some kind of connection to a workplace and the performance of work. However, the categories range far beyond common law employment.

46    Certainly, in item 1 of the table in s 342, where the adverse action described is by an “employer” against an “employer”, by reason of s 335 this means a common law employer and a common law employee.

47    The applicant here does not rely on item 1. He relies on item 3, MSO and Mr Ross having now accepted (in their Defence filed on 7 November 2024) that he was an independent contractor.

48    The expressly wider context of the protections in s 340, in contrast to s 351, tells against the constructional contentions of MSO and Mr Ross being as inevitably correct as they submitted. Especially so when combined with the textual matters to which I refer below.

49    For MSO and Mr Ross’s contentions to be so clearly correct that the Court can conclude the applicant’s claims have no reasonable prospects of success, I consider they must persuade the Court that:

(a)    the terms “employer” and “employee” in the definition of “workplace law” in s 12 mean a common law employment relationship; and

(b)    if they have this meaning, that the only tenable construction of (d) in the definition of “workplace law” is that the other law must be one which only regulates the relationships of common law employees and employers, and not one—such as s 18 of the EO Act—that also regulates other workplace relationships, and other non-workplace relationships; or

(c)    alternatively, that the other law is a workplace law only to the extent that it regulates the relationship of common law employees and employers, and not to the extent that it also regulates other workplace relationships.

50    I do not accept that MSO and Mr Ross have made good the second or third of these submissions to a level which enables the Court to conclude that the applicant’s different construction has no reasonable prospects of success.

51    I do not accept propositions (b) or (c) above are necessarily correct, when the provisions are read as a whole and as a scheme intended to work harmoniously: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 at [70].

52    The issue is the width of (d) in the definition of “workplace law”. The construction for which MSO and Mr Ross contend must also be considered in light of other provisions in the FW Act where the term “workplace law” is used. These include s 341(2), s 558B and several of the definitions in s 12 itself (such as “industrial association”). Again these are matters to be developed fully at trial but it seems to me that a consequence of the respondents’ construction might be that provisions such as s 341(2) do not operate in the way they might be intended to operate because they would not include State laws such as the EO Act, or would pick up those laws only in a restricted way. So too some of the definition provisions.

53    In any event, the applicant’s construction of the whole text of the definition of “workplace law” is arguable. As I have indicated, a meaning that is wider than the respondents’ contended meaning may in a contextual and purposive sense be a better fit with the legislative scheme, but I have no concluded views on this issue.

54    The applicant accepted for the purpose of the interlocutory application that the term “employers and employees” in the definition of “workplace law” did refer to common law employment relationships, by reason of the operation of s 11. In other words, the applicant accepted proposition (a) as set out above at [51]. See also Tattsbet Ltd v Morrow [2015] FCAFC 62; 233 FCR 46 at [101].

55    It was not clear to me that MSO and Mr Ross had quite understood how the applicant’s construction argument was being put. Senior counsel for the applicant submitted the effect of s 11 on the construction of para (d) in “workplace law” was to create a “floor rather than a ceiling”. In other words, para (d) was to be taken as imposing a minimum requirement for a State law to be a “workplace law”; it must, at least, regulate common law employment relationships. She submitted the EO Act did this, and the respondents appeared to accept that was the case, in the sense that the EO Act anti-discrimination provisions regulate common law employment relationships as well as other kinds of workplace and non-workplace relationships.

56    In this context senior counsel noted that for the purposes of the interlocutory application, and in contrast to their written submissions, MSO and Mr Ross now accepted s 18 of the EO Act did “regulate the relationships” between employers and employees.

57    She submitted the difference between the parties was whether it was arguable that a provision such as s 18 (or s 21 of the EO Act) could be a workplace law to the extent that it also regulated relationships between other kinds of actors in a workplace (such as independent contractors).

58    That characterisation of the difference between the parties is correct.

59    I accept the applicant’s submissions that the breadth of para (d) of the definition of workplace law in s 12 is susceptible to more than one constructional choice. The constructional choice for which the applicant contends is not fanciful or plainly untenable; it is sufficiently arguable for the applicant’s claim not to be rejected by the Court in a summary way under s 31A. A wider reading may well, as senior counsel for the applicant submitted, be consistent with the approach taken by the plurality in the High Court in Qantas Airways Ltd v Transport Workers Union of Australia [2023] HCA 27; 278 CLR 571 at [20] and [22].

60    Senior counsel for the applicant also pointed to the need to read all of paras (a) to (d) in context, and when that was done, she submitted there was clearly an intention not to limit the scope of (d) to State laws that only regulated common law employment. She emphasised the objects provisions in s 3 and also in s 336(2) and in particular the stated intention to provide protection from workplace discrimination

(whether an employee, an employer or otherwise) [emphasis added]

61    Senior counsel for the applicant also referred to well-established principles of statutory construction concerning the need, as far as the text, context and purposes permits, for provisions to be construed consistently with Australia’s international obligations: see written submissions at [65]–[87]. See generally: Kingdom of Spain v Infrastructure Services Luxembourg sàrl [2023] HCA 11; 275 CLR 292 at [16]; Firebird Global Master Fund II Ltd v Republic of Nauru [2015] HCA 43; 258 CLR 31 at [44]; CPCF v Minister for Immigration and Border Protection [2015] HCA 1; 255 CLR 514 at [8].

62    This principle of construction was said to be especially important in the context of the FW Act, and Australia’s international obligations under the International Labour Organisation (ILO) Discrimination (Employment and Occupation) Convention 1958, and the International Covenant on Civil and Political Rights.

63    The Court notes these submissions, and accepts they may support the construction for which the applicant contends. They are amongst the matters, additional to those I have already outlined, which in my opinion led to the conclusion that the respondents’ construction is not inevitably the correct construction. There are constructional choices to be made; more than one construction is arguable.

64    On this interlocutory application the Court is not determining the correct construction; that is a matter for trial, in the full context of the proceeding.

65    However, MSO and Mr Ross made a further point beyond the exercise of statutory construction. They contended the Court was bound to, or should, follow the Full Court’s findings in Tattsbett, which they submitted supported only their construction of “workplace law”.

66    MSO and Mr Ross submit that in Tattsbett the Full Court:

held that “someone who was not an employee in the common law sense, was not entitled to the benefit of so much of the [Superannuation Guarantee (Administration) Act 1992 (Cth)] as was a ‘workplace law’ within the meaning of s 341(1)(a) of the FW Act”, because that law was not a “workplace law” within the meaning of Part 3-1 of the FW Act.

67    They rely on Tattsbet at [104] (Jessup J, with Allsop CJ and White J agreeing at [1] and [140] respectively). Jessup J’s reasons were the leading reasons. Tattsbett was a proceeding where Ms Morrow was challenging the termination of an arrangement under which she had operated a shopfront betting agency for Tattsbett. She succeeded before the primary judge in establishing she was an employee (that is, a common law employee) and succeeded in a claim about inadequate notice under s 44(1) of the FW Act; but failed in her adverse action claim under s 340. Before the Full Court there was therefore both an appeal by Tattsbett and a cross-appeal by Ms Morrow. In both appeal and cross-appeal, whether Ms Morrow was an employee of Tattsbett was a central issue: see [6]–[7].

68    Jessup J considered the terms of the agency agreement between Ms Morrow and Tattsbett, but also a number of factual matters, other factors such as taxation, economic dependence, whether Ms Morrow had any goodwill in the agency business, the manner in which she performed her work and how much control she had over aspects of it, and acknowledged some factual matters tending to support the conclusion of the primary judge. Jessup J nevertheless concluded (at [64]) that:

Notwithstanding that, the situation before his Honour involved a number of features that, in combination, compel the conclusion that the respondent was not the employee of the appellant.

69    At [65]–[72], his Honour explained why he reached that conclusion, in terms not necessary to set out here given the relevance of this case to the interlocutory application. Having reached that conclusion his Honour found the appeal must be allowed subject to the arguments on Ms Morrow’s cross-appeal. On the cross-appeal, Ms Morrow relied on the general protections provisions in s 340 on the alternative basis that she was an independent contractor.

70    For her “benefit” under a “workplace law”, Ms Morrow relied on her entitlements under another federal law, the Superannuation Guarantee (Administration) Act 1992 (Cth), in respect of superannuation contributions she contended Tattsbett was required to make on her behalf, and which she sought to enforce through processes provided for under the SGA Act. There were a number of factual issues both at first instance and on appeal about whether Ms Morrow had engaged in any of the conduct set out in s 340(1), beyond having the asserted benefit to superannuation. Again, the reasoning on these issues by Jessup J is not material to the way the decision is being employed by MSO and Mr Ross.

71    On appeal, because of his Honour’s finding she was not an employee, Jessup J needed to consider Ms Morrow’s arguments about the SGA Act from the perspective she was an independent contractor: see [94]. His Honour described the first issue on the cross-appeal as whether

[Ms Morrow’s] contention that s 340 applied to her no less as an independent contractor than as an employee (because of the terms of Item 3 in the table in s 342(1)).

72    Tattsbett contended it did not: [95].

73    At [98], Jessup J described the potential benefits of the SGA Act to particular employees, and at [99] noted the deeming provision contained in s 12(3) of the SGA Act which extended the benefit to a person who “works under a contract that is wholly or principally for the labour of the person”.

74    At [100], Jessup J described the parties’ mutual position on appeal, and at first instance, that it was “self-evident” Ms Morrow fell within the terms of the deeming provision. However, his Honour found it was not self-evident, and indeed it was unlikely Ms Morrow fell within that provision.

75    At [101], his Honour then assumed, contrary to the finding he had just made, that Ms Morrow did fall within the deeming provision. His Honour then noted the definition of “workplace law” in s 12, and the effect of s 11. While Jessup J was dealing with a Commonwealth law, as MSO and Mr Ross submitted this may not affect the applicability of his Honour’s core reasoning at [103]:

Was the respondent entitled to the benefit of a law of the Commonwealth, in the sense exposed above, that regulated the relationships between employers and employees? Assuming for the moment that the agency agreement answered the description in s 12(3) of the SGA Act, the answer must be no. If the respondent was entitled to anything under the SGA Act, that entitlement arose under the provisions of that Act that extended its operation beyond the circumstances of employees strictly so called. Those provisions did not regulate the relationships between employers and employees.

[Emphasis added]

76    It is the passage in bold which MSO and Mr Ross identify as supporting their submissions. I accept it may do so.

77    The application of that proposition to Mr Gillham is that if Mr Gillham had the benefit of (relevantly) the protection under s 18 of the EO Act “not to be discriminated against because he held or expressed a political belief or engaged in political activity”, that entitlement arose because of the provisions in the EO Act which extended this benefit to independent contractors by the extended definition of “employee” in the EO Act. In its application to Mr Gillham then (as opposed to its application to common law employees), s 18 of the EO Act does not regulate the relationships between employers and employees. Of course, this contention could not be correct if Mr Gillham’s construction arguments are correct.

78    These observations may be said to be strictly obiter dicta because the principal reasoning of Jessup J, as I have explained, was that the deeming provision in the SGA Act did not apply to Ms Morrow. Senior counsel for MSO and Mr Ross made a submission that the passage was part of the ratio decidendi of the case. In the circumstances of this proceeding, that is not a matter suitable for determination on summary dismissal.

79    I note in passing that, since Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22 230 CLR 89, a Full Court of this Court has accepted that seriously considered dicta of the High Court are binding on the lower courts (at least if the dicta conform with long established authority: see Harvard Nominees Pty Ltd v Tiller [2020] FCAFC 229; 282 FCR 530 at [54] (Lee, Anastassiou and Stewart JJ)).

80    This proposition may not extend in the same way to seriously considered dicta of intermediate appellate courts. Instead, a trial judge should not depart from the “decision” of an intermediate appellate court on the interpretation of Commonwealth legislation “unless convinced that the interpretation is plainly wrong or, to use a different expression, unless there is a compelling reason to do so” (Hill v Zuda Pty Ltd [2022] HCA 21; 275 CLR 24 at [25]).

81    The correct characterisation of Jessup J’s findings, and of the general agreement by the other two members of the Full Court with his Honour’s reasons, is a matter properly left for trial. The characterisation is not so obvious as to be suitable to determine a summary dismissal application in favour of MSO and Mr Ross.

82    MSO and Mr Ross accept that, only a month later, Justice Jessup reached a different conclusion about a different piece of legislation, this time Victorian legislation, in Regulski v State of Victoria [2015] FCA 206. In that decision Jessup J accepted that provisions of the Accident Compensation Act 1985 (Vic) were a “workplace law”. His Honour then observed at [200]:

These provisions required employers to act in certain ways, and in that sense were regulatory. The field in which they were required to act was that of the relationships which they had with their relevant employees. Most relevantly to the present case, they were required to plan the return to work of injured employees, and to consult with them. The result presumptively achieved by obedience to these provisions was that employees would perform work, in the service of their employers, which they would, or at least might, not otherwise have performed. In my view, ss 195 and 196 of the AC Act were workplace laws within the meaning of the FW Act.

83    The applicant in Regulski relied, amongst other protections, on s 340(1) and s 341(1). As the respondents correctly submitted, the applicant and the principal respondent were in a relationship of common law employment. For the purposes of other claims made by the applicant, Jessup J also accepted that certain other Victorian legislation fell within the meaning of para (d) of “workplace law”—for example the Occupational Health and Safety Act 2004 (Vic): see [157].

84    However MSO and Mr Ross are correct that this decision does not appear to assist the applicant because it concerned an applicant who was a common law employee. The issue in Tattsbett did not arise. The same is true of Milardovic v Vemco Services Pty Ltd (Administrators Appointed) [2016] FCA 19. The other three cases particularly relied upon—Auimatagi v Australian Building and Construction Commissioner [2018] FCAFC 191; 267 FCR 268, Reynolds v Harrier Group Pty Ltd [2023] FedCFamC2G 930 and Bayford v Maxxia Pty Ltd [2011] FMCA 202; 207 IR 50—are not in my opinion decisive one way or the other, given the presence of concessions or the absence of focus on the arguments presented here. Again, the level of persuasive force they have is properly a matter for trial.

85    The applicant’s construction of para (d) of the s 12 definition of “workplace law” was certainly not considered by Jessup J. The reasoning of his Honour was tightly tied to, with respect, a narrow reading of the text of (d). His Honour’s reasoning was contained in one paragraph, no doubt because the parties did not address his Honour at the more developed level that is occurring in this proceeding. The question posed by Jessup J in the first sentence extracted at [77] above would not, on the applicant’s arguments, be the correct question. The question would be an objective one about the operation of the provision concerned and the benefit it conferred as including as a baseline the regulation of the common law employment relationship, not the source of a particular applicant’s ability to be covered by that benefit.

86    These were distinctions and nuances not argued at all before the Full Court in Tattsbett.

87    For the reasons I have explained, I consider the applicant’s construction is arguable. Ultimately it may or may not succeed. The respondents have support in the reasons of Jessup J, and the general agreement of the other two members of the Court. However, it is clear that the construction of “workplace law” was a very minor, and somewhat fleeting, aspect of the reasons in Tattsbett, and as I have emphasised, no arguments of the kind made in this proceeding were made to the Full Court, nor to the primary judge.

88    I have not accepted these passages are unarguably ratio decidendi or “seriously considered dicta”. The correct characterisation of those passages in Tattsbet should be determined at trial. Further, even taking Tattsbett at its highest in the way the respondents seek to do, as French CJ and Gummow J said in Spencer at [25]:

Where the success of a proceeding depends upon propositions of law apparently precluded by existing authority, that may not always be the end of the matter. Existing authority may be overruled, qualified or further explained. Summary processes must not be used to stultify the development of the law.

89    In the overall circumstances of this proceeding, including the legal and factual issues raised, if a single judge is found ultimately to be bound by the passages as ratio, and they have the effect for which MSO and Mr Ross contend, I consider the applicant should have his full right of appeal.

90    Although finely balanced, I consider it would not be just or appropriate to deprive Mr Gillham of his entitlement to a full trial on the law and the facts because of a single paragraph of reasoning in a Full Court decision where the Full Court’s orders did not obviously depend upon this reasoning, and where the argument now raised was not in any sense before that Court. In circumstances such as the current proceeding it would be a very weighty matter indeed for a court summarily to dismiss a claim such as Mr Gillham’s.

91    For the purposes of the application of s 340(1) and provisions of State law (or, indeed any “other” law within the definitions in para (d) of workplace law in s 12), MSO and Mr Ross erect a contended distinction between “the regulation of the employment relationship per se, as opposed to prohibitions in conduct arising therein”.

92    Again, that is not a contended distinction in terms of the scope and operation of the protections conferred by s 340 of the FW Act that is either so obvious or well-established, and applicable to the applicant’s claim, that it means his application has no reasonable prospects of success. I do not consider this distinction is to be derived from Tattsbett. The respondents can make these arguments at trial, in a full evidentiary and legal context. The object of s 31A is not to permit respondents to pluck certain legal aspects of an applicant’s case out of context, encourage the Court to examine them in fine detail and analysis, reach final conclusions about them and thereby avoid a trial.

The argument that the contract worker provisions of the EO Act do not assist the applicant; the “workplace right” aspect of the applicant’s claims

93    The principal basis on which MSO and Mr Ross advanced their summary judgment application on the contract worker claim by the applicant was the same as the arguments I have described above—namely that they depend on benefits contained in s 21 of the EO Act, which is not a workplace law for the purpose of s 340.

94    I have explained above why I am not persuaded the applicant’s case is without any reasonable prospects of success for the purposes of s 31A, and the same conclusion applies to these claims.

95    Of course these claims depend on the characterisation of the legal relationships between Mr Gillham, SSA and MSO. It is apparent from the written and oral submissions on the interlocutory application that there is a range of debates, of mixed fact and law, about how correctly to characterise the relationship between MSO and Mr Gillham, and where SSA fits into the picture. It is not necessary to rehearse them here, and indeed during oral argument at the hearing it became apparent that there might be more to the argument that SSA contracted with Mr Gillham as an agent for MSO than MSO had initially been prepared to admit. Again, I express no concluded views; there are in my opinion complex matters of fact and law which will need to be considered against the evidence at trial to determine the character of the relationship constituted by the agreement as the Court finds made between the parties: Personnel Contracting Pty Ltd at [64].

Other aspects of the interlocutory application

96    The implied contract alleged by the applicant was initially the subject of oral submissions on behalf of MSO and Mr Ross. However, ultimately all counsel appeared to accept that while the applicant’s case on an implied contract might be inadequate in terms of pleading, it was but one of the several questions of mixed fact and law about the correct characterisation of the legal relationships between the applicant, SSA and MSO.

97    The pleadings strike out aspect of the interlocutory application under r 16.21(1)(e) was not developed orally. I infer from that fact, and what is in the written submissions, that no different argument is put than is put on the summary judgment aspect of the interlocutory application. That is not to say the pleaded case gives adequate notice of all the applicant’s contentions, as some of the arguments on the interlocutory application demonstrated.

98    Nor was the application for separate questions pressed orally. As I informed counsel at the hearing, this particular application was not one I favoured at an indicative level, as I consider from experience that separate questions tend to achieve more fragmentation and have less utility than might at first be thought. That is especially so with a fact intensive proceeding such as this one.

Conclusion

99    The interlocutory application by MSO and Mr Ross must be dismissed. The terms of s 570 of the FW Act apply to this proceeding. There has been no unreasonable conduct by MSO and Mr Ross which could fall within the terms of the exception in s 570(2). The applicant did not suggest there was.

100    There should be no order as to costs.

101    The proceeding should now be case managed towards a trial date. From the contentions made at the hearing, it would seem both sides may wish to refine their positions as currently set out in their pleadings and concise statements/responses.

102    The parties should be encouraged and allowed to do so, as this matter is otherwise at an early stage. The applicant and his legal representatives have the benefit of arguments on the interlocutory application and the Court expects they should be able to refine and clarify the applicant’s case so that the real and substantial issues in dispute between the parties can be addressed.

103    Consistently with the objectives of ss 37M and 37N of the FCA Act, the Court will not permit this proceeding to turn into any interlocutory war of attrition, and does not expect expensive and time consuming interlocutory applications from any party, where constructive and proactive communications between legal representatives, combined with Court driven mediation on practice and procedural issues, are capable of achieving the same outcome. From this point onwards the proceeding will be closely and actively case managed by the Court, including with the assistance of the Registrar to whom the mediation referral was made, given familiarity with the issues.

Associate:

Dated:    8 May 2025