McDougall, Scott --- "A Certain Commonality': Discriminating against the Discriminated in the Compensation of Queensland's Underpaid Workers" [2002] IndigLawB 5; (2002) 5(14) Indigenous Law Bulletin 11

‘A Certain Commonality’:

Discriminating Against the Discriminated in the Compensation of Queensland’s Underpaid Workers

by Scott McDougall[1]

Whilst I recognise that the skills and talents of each complainant was different and that had each been paid the equivalent of an award wage the entitlement of each complainant would also have been different, the fact is that one can recognise in the past experience of each complainant on Palm Island a certain commonality. They were all treated alike; they lived as part of the same community; they together bore the personal anguish which was the unfortunate consequences of the discrimination which occurred because of their Aboriginality. Therefore it seems to me to be appropriate that the compensation to be awarded to each now after several years of waiting should be the same.[2]

With these words the Honourable William Carter (‘Commissioner Carter’) awarded compensation of $7,000 to each of the complainants in the matter that came to be known as the Palm Island Under Award Wages decision[3] (‘the Palm Island decision’). The matter involved several complaints alleging racial discrimination by the Queensland Government for underpaying Aboriginal workers.

This paper considers the original decision by Commissioner Carter of the Human Rights and Equal Opportunity Commission (‘HREOC’) in the Palm Island decision and assesses the adequacy of the Queensland Government’s response. A range of issues which might give rise to future litigation are also canvassed in light of their potential impact on the settlement process.

Background

From the outset of the engagement of Aboriginal[4] labour in Queensland, Aboriginal workers have been paid considerably less than their white counterparts. The availability of a cheap labour force underpinned the Queensland Government’s policy of creating and maintaining Aboriginal reserves and missions.[5] In addition, the important contribution of such labour to the development of Queensland’s pastoral, agricultural and seafood industries is well established, if not well recognised.

The consequences of the systemic discriminatory practice of paying Aboriginal workers a fraction of the wages of white workers are widespread and continue to be felt to this day. The resulting poverty of Aboriginal workers has undoubtedly contributed to their state of disadvantage as reflected in statistics on health, home ownership, education and economic well being.

In 1975, the Commonwealth Government enacted the Racial Discrimination Act 1975 (Cth) (‘RDA’). A principal aim of the legislation was to outlaw discrimination in the workplace on racial grounds. Despite this, the conservative Queensland Government led by Bjelke-Petersen refused to introduce equal wages for its black and white workers.[6] For example, the Public Service Award (‘the award’) for 1975 provided for levels of payments within the Queensland Public Service. The award was categorised into specific awards for each Aboriginal community. Under the award for Kowanyama, a ‘clerk’ was to be paid $316.10 (minimum) per fortnight. The amount actually paid to Aboriginal postal and bank clerks at Kowanyama at this time was between $80 to $100 per fortnight, less than a third of that of the white clerks.[7]

For almost 11 years after the introduction of the RDA, the Queensland Government continued to resist pressures to increase Aboriginal wages to award levels. By the time award wages were finally installed in most Aboriginal communities in October 1986, the Queensland Government would have effectively saved - in today’s terms - hundreds of millions of dollars.

The Palm Island Decision

In 1985 and 1986 several Aboriginal elders of Palm Island lodged complaints with the Human Rights Commission (now HREOC) alleging racial discrimination by the Queensland Government.[8] The complainants asserted that in their respective areas of employment by the government they were discriminated against because of their Aboriginality in that they were:

• paid wages at a rate less than that to which they would otherwise have been entitled were they not Aborigines; and
• employed on terms and conditions significantly less favourable than would otherwise have been the case had they not been Aborigines.[9]

During the hearing of the complaint in 1996, Mr Les Kidd, an industrial relations expert, provided evidence that the complainants were underpaid the following amounts by the Queensland Government during the relevant period:

Mr Kitchener Bligh	$ 8,573.66
Mr Jack Sibley	$12,149.75
Mr Maurice Palmer	$17,294.15
Mr Fred Lenoy	$20,982.97
Mr Buller Coutts	$11,190.37
Mrs Mavis Foster	$ 8,647.88

Commissioner Carter was satisfied with Mr Kidd’s methodology in arriving at these figures:

...[Mr Kidd’s] approach provides one with the reasonable capacity to arrive at a generally correct if not precise idea of the difference between what each was paid in the period 1975-1984 and what each might have earned if paid a weekly sum equivalent to that to which each might have been entitled had he or she been employed under the particular award. [10]

Commissioner Carter determined that the underpayment clearly constituted a breach of the RDA. He then turned his mind to the question of compensation.

Section 25Z(1) of the RDA provided the Commission with the power to make:

(iv) a declaration that the respondent should pay to the complainant damages by way of compensation for any loss or damage suffered by reason of the conduct of the respondent...

It was clearly within Mr Carter’s power at the time to declare that the Queensland Government pay each of the complainants special damages equal to the amount that each was underpaid. Such an award could have been augmented with general damages for the ‘hurt and humiliation’ suffered by the complainants. However, Commissioner Carter went on to determine that:

Monetary compensation can recompense a person who has been denied that wage to which he or she is properly entitled. But over and above that each of these complainants has suffered hurt and has been personally and profoundly offended. The payment of money in respect of this loss and damage can only be regarded as a poor substitute.[11]

On this basis, Commissioner Carter awarded $7,000 to each complainant as special damages for loss of income. To redress the personal offence and hurt suffered he directed the Queensland Government to issue an apology.

Why award the same amount to each complainant?

Commissioner Carter determined that each complainant was to receive the same amount of compensation because of their ‘certain commonality’.[12] However there is no rational basis for this assertion of commonality. Evidence adduced at the hearing attested to the different jobs and levels of responsibility held by each complainant, the differing conditions of employment (including wages) and, importantly, the differing periods of employment which led to the widely varying amounts each complainant was underpaid.

With the greatest respect to Commissioner Carter, his reasoning both directly and indirectly discriminates against the complainants on the basis of their race. To limit the damages of Fred Lenoy to $7,000 simply because he ‘lived as part of the same community’ as the other complainants, is to discriminate against him merely for belonging to an Aboriginal community. Indeed it is difficult to imagine a case where multiple complainants with such differing personal circumstances could be awarded equal damages because they were all from ‘the same community’. Consider a scenario where five passengers in a motor vehicle accident each suffer injuries ranging from a broken arm to quadriplegia. Would the personal injury claims be limited to equal payments for each of the passengers simply because they all ‘bore the anguish’ of the accident and because they came from ‘the same community’?

The inescapable conclusion is that the ‘certain commonality’ found in each of the Palm Island complainants was in fact their Aboriginality.

Why award only $7,000?

Commissioner Carter offered the following reasons:

There are obvious difficulties in the making of a valid assessment [of financial loss]... The lack of records and the faulty recollections of details by the complainants are only two of these. In light of such problems there is a serious risk that any attempt at precision will be flawed and may create a result which is unfair. Therefore it seems to me to be essential that any error in the assessment has be (sic) very much on the side of caution.[13]

There are a number of problems with this approach. Far from a ‘lack of records’, there were clear records available in the form of departmental wage sheets to adequately prove the amount of hours worked by each complainant and their area of employment. Taxation group certificates were also available as reliable evidence of the amounts each complainant was paid. Therefore there was no real difficulty in establishing the amount and at what rate each complainant was paid, the area in which they worked and their periods of employment.

The only area of uncertainty was in establishing exactly the duties each worker performed and deciding on an appropriate rate to compare their financial loss. To this end, Commissioner Carter did not have any real difficulty in accepting the particular awards nominated by Mr Kidd. Despite accepting Mr Kidd’s assessment, Commissioner Carter maintained that it was necessary to err on the side of caution so as to avoid an ‘unfair result’. This begs the question: to avoid an unfair result for whom? Mr Lenoy’s entitlement was assessed to be ‘generally correct’ at $20,982.97, yet Commissioner Carter limited his entitlement to about one third of that amount. This could only be regarded as excessively ‘cautious’, if not ‘unfair’.

Finally, the issue of interest was raised in the submissions of the complainants. Although there is authority for its inclusion in compensation payments for discrimination,[14] Commissioner Carter made no allowance for interest and did not deal with this question.

Why is money a ‘poor substitute’ for hurt and humiliation?

There is authority for the proposition that the appropriate approach to the assessment of damages in discrimination matters is by analogy to damages in tort.[15] Indeed only a year after the Palm Island decision a complainant in another discrimination case was awarded a total of $55,000 for loss of income and hurt and humiliation resulting from racial discrimination in his workplace.[16]

Whilst an apology may go some way toward redressing the personal hurt suffered by each of the Palm Island complainants there is no evidence that any of the complainants sought an apology as a substitute for monetary compensation for their hurt and humiliation.

Queensland Government Response to the Decision

The discrimination inherent in failing to recognise the differences between each of the complainants’ cases has been repeated on a grand scale in the ongoing Under Award Wages settlement process implemented by the Queensland Government. On 31 May 1999, the Queensland Government decided to offer $7,000 compensation to Aboriginal workers who were underpaid during the period 31 October 1975[17] to 29 October 1986.

Under the Under Award Wages settlement process, applicants apply to FAIRA Aboriginal Corporation for this compensation. The Queensland Government then assesses the applications to determine eligibility for the compensation payment. A person may be eligible even if they only worked for one day provided they were not paid at the award rate. There is therefore no differentiation between the entitlement of a person underpaid for 11 years and a ‘one day worker’. In this way the Queensland Government has repeated the injustice of the Palm Island decision. It would have been possible, albeit with increased administrative costs, to have ‘weighted’ the compensation, based on length of employment. In 1983 for example, the Commonwealth Government compensated underpaid Aboriginal war veterans with payments ranging from $800 to $33,000 depending on the length of service of each applicant.[18]

Since the process began, FAIRA has received more than 8,000 applications. To date the Queensland Government has paid about $28 million to the approximately 4,000 people who have been prepared to accept the compensation by executing deeds waiving any rights to recover further compensation. Many applications have been assessed as ineligible for various reasons (see below) and many applications remain to be assessed.

Emerging Issues

FAIRA is currently pursuing or investigating the following issues.

Quantum of Compensation

Recently two workers have lodged complaints with HREOC seeking more than $7,000 compensation.

Deceased Estates

The Queensland Government has decided to compensate only those persons alive as at the date of their decision. Thus only the estates of those persons who died after 31 May 1999 are eligible to receive the compensation. There are estimated to be several thousand potential claims on behalf of the estates of workers who died before May 1999 yet were employed during the relevant period.

Church Sponsored Communities

The Queensland Government has recently indicated that it will not pay compensation to underpaid workers employed by the various church run missions. This decision effectively denies compensation to hundreds of workers at Hopevale, Wujal Wujal, Doomadgee, Aurukun and Mornington Island communities. There is strong documentary evidence to suggest that these institutions merely acted as agents of the Queensland Government in the discrimination of these workers.[19] FAIRA recently lodged a complaint to HREOC on behalf of 19 Wujal Wujal workers and 104 Hopevale workers against both the Lutheran Church and the Queensland Government.

Under Age Workers

Recently the Queensland Government rejected applications on behalf of several workers who were only 14 or younger at the time of their employment on the basis that the relevant awards made no provision for payments to 14 year olds. Such a ruling is at odds with the reasoning in the Palm Island decision:

That...is the basic concern - not so much that he was not employed under the particular award applicable in that section of the building trade - but that he was not paid what a reasonable employer would be required to pay a competent painter for the trades work carried out by that person.

Conclusion

The impact of these outstanding issues on settlement remains to be seen. Certainly, if further complaints lead to more and higher awards of compensation, there may be implications for the Queensland Government’s Under Award Wages budget. Any such concerns held within Treasury should be tempered by the fact that thousands of Aboriginal workers who have already accepted the settlement may have forgone the full compensation for which they would otherwise have been entitled. To this extent, history may reveal the deliberate decisions of the Queensland Government unlawfully delaying the introduction of equal wages to have been very cost effective.

Scott McDougall is a consultant lawyer to FAIRA Aboriginal Corporation.

---

[1] Thanks to Peter Rankin for his important contribution to this article.

[2] Bligh and Ors v State of Queensland [1996] HREOCA 28, para 209.

[3] Ibid.

[4] I have employed the generic term ‘Aboriginal’ to describe Indigenous people of Australia including both Aboriginal and Torres Strait Islander people. No offence is intended to the latter group.

[5] Thomas Blake, A Dumping Ground: A History of the Cherbourg Settlement (2001).

[6] Queensland Cabinet rejected introducing award wages in 1979 on advice that the extra cost to Consolidated Revenue would be at least $7.3m. See R Kidd, The Way We Civilise (1997) 318.

[7] Hazel Paul at FAIRA, personal file.

[8] It is unclear why a challenge under the RDA was not brought sooner than this.

[9] Bligh, above n 2, para 1.

[10] Ibid para 110.

[11] Ibid para 207.

[12] Ibid para 209.

[13] Ibid para 209.

[14] Pheeney v Dolan [1977] 1 NSWLR 601 at 613 and MBP (SA) Pty Ltd v Gogic (1991) 171 CLR 657.

[15] Hall v AA Sheiban [1989] FCA 72; (1989) 85 ALR 503, 505.

[16] Rugema v J Gadsten Pty Ltd trading as Southcorp Packaging and Stephan Derkes [1997] HREOCA 34.

[17] The date of the commencement of the RDA.

[18] Aboriginal Newsletter (November 1983) Issue No 130.

[19] This evidence consists of correspondence received by the Lutheran Mission from the Director of the Department of Aboriginal and Islanders Advancement concerning wage levels for non-award wage employees.