IN THE FEDERAL COURT OF AUSTRALIA (FCA) NEW SOUTH WALES REGISTRY - FEDERAL COURT OF AUSTRALIA FAIR WORK DIVISION

No: NSD580/2012
NOTICE OF FILING This document was filed electronically in the FEDERAL COURT OF AUSTRALIA (FCA) on 15/05/2012.

DETAILS OF FILING Document Lodged: File Number: File Title: District Registry: Statement of Claim - Form 17 - Rule 8.06(1)(a) NSD580/2012 James Hunter Ashby v Commonwealth of Australia & Another NEW SOUTH WALES REGISTRY - FEDERAL COURT OF AUSTRALIA

Dated: 15/05/2012

Registrar

Note This Notice forms part of the document and contains information that might otherwise appear elsewhere in the document. The Notice must be included in the document served on each party to the proceeding.

Form 17 Rule 8.05(1) (a) Statement of claim No. Federal Court of Australia District Registry: New South Wales Division: Fair Work NSD 580 of 2012

James Hunter Ashby Applicant

Commonwealth of Australia First Respondent Peter Slipper Second Respondent

Parties

1.

The applicant is employed by the first respondent, the Commonwealth of Australia [Commonwealth).

2.

The second respondent [Speaker) at all material times: (a) (b) (c) was and is a member of the House of Representatives; was and is the Speaker of the House of Representatives; wasan office-holder within the meaning of sections 3 and 13(1) of the Members of Parliament (Staff) Act 1984 (MOPS Act)authorised, on behalf of the Commonwealth, to employ a person under an agreement in writing to be a member of the Speaker's staff.

Filed on behalf ofJames Ashby, Applicant HARMERS WORKPLACE LAWYERS Address for service: Level 28, St Martins Tower 31 Market Street S Y D N E Y N S W 2000

Tel: 02 9267 4322, Fax 02 9264 4295,

Email michael.harmer@harmers.com.au [Form approved 01/08/2011]

The Employment of the applicant 3. In or about mid December 2011, the applicant accepted an offer of employment made by the Speaker to be his "Personal Employee under Part 111 [sc Part III] of the [MOPS Act]". Particulars The offer was made by letter from the Speaker to the applicant dated 5 December 2011 and the acceptance was communicated orally by the applicant to the Speaker. 4. The applicant commenced employment on 22 December 2011: (a) pursuant to a contract of employment between the applicant and the Commonwealth (Employment Contract); (b) which employment was subject to the arrangements provided for in relation to personal employees under the Commonwealth Members of Parliament Staff Enterprise Agreement 2010-2012 (Enterprise Agreement) together with the Supporting Guidelines to the Commonwealth Members of Parliament Enterprise Agreement 2010-2012, being guidelines issued by the Commonwealth Department of Finance and Deregulation; (c) which employment was subject to the General Protections provided for in Part 3-1 of the Fair Work Act 2009 (FWA); (d) which employment meant that,within the meaning of section 795 of the FWA: i. the applicant was a public sector employee employed in public sector employment; ii. theSpeaker was the applicant's employing authority. 5. Terms of the Employment Contract included: (a) express terms that: i. the applicant was employed to be a member of the Speaker's staff at the level of Adviser as an ongoing employee; ii. the applicant was employed under Part III of the MOPS Act; iii. the applicant's salary was $116,465 plus Parliamentary Staff Allowance of $25,750 in lieu of overtime; iv. the applicant's position was based in Buddina, Queensland and he would travel to Canberra during the parliamentary sitting periods or at other times as directed;

3 v. the applicant was entitled to an overnight travelling allowance of $230 per night (60 to 80 days on average per year); (b) an implied term of good faith that obliged the applicant and the Commonwealth: i. to co-operate in achieving the contractual objects of the Employment Contract; and/or ii. to comply with honest standards of conduct; and/or iii. to comply with standards of conduct that were reasonable having regard to the interests of the parties to the Employment Contract; and/or (c) an implied term to provide a safe system of work forthe applicant and take all reasonable steps to protect the safety of the applicant. 6. By reason of the matters pleaded in paragraph 4, the employment of the applicant: (a) authorised the Speaker, on behalf of the Commonwealth, to provide lawful directions to the applicant; and/or (b) was"by [the Speaker] on behalf of the Commonwealth" with the applicant being "responsible to [his] employing Member" being the Speaker. Particulars Enterprise Agreement: Section A - Introduction, page 4.

Relevant Conduct 7. Prior to 2 January 2012, the Speaker suggested the applicant to stay at the Speaker'sresidential flat in Canberra for the express purpose of the applicant being able to save on the expense of accommodation and to facilitate the applicant being able to retain the travel allowance that would be payable to him. 8. The applicant agreed to stay at the Speaker's residential flat and did so from 2 January 2012 until 6 January 2012. 9. On 3 January 2012, the Speaker: (a) removed his attire other than the Speaker's underwear, being "boxer"type shorts; (b) requestedthe applicant to massage the Speaker's neck;

4 (c) requestedthe applicant to enter the Speaker's bedroom to perform the massage; proceeded to lay down on the Speaker's bed.

(d) 10.

The applicant believed he had no realistic choice in all the circumstances but to perform the massage requested by the Speaker and did so.

11.

During the massage, the Speaker began to make noises of a type which conveyed to the applicant the impression that the Speaker was experiencing sexual pleasure or gratification from the massage at which point the applicant ceased touching the Speaker and left the Speaker's bedroom.

12.

On 4 January 2012, the Speakersaid to the applicant words to the following effect: (a) (b) (c) (d) (e) (f) "You're a strange one"; "You're weird because you shower with the door shut"; "You're a prude"; "But you even go to the toilet with the door shut"; "You should try showering with the door open"; "What have you got to hide? What are you doing in there?"

13.

In response to the Speaker's comments as pleaded in paragraph 12, the applicant: (a) said (referring to his practice of showering with the door closed) that: i. "What's weird about that"; ii. "You can call me what you like, I'm happy to wear the tag of prude. I don't know what you private schoolboys got up to in your day, but I've never found it normal to shower with the door open. My Dad's never done, I've never done it, my mates don't do it, that's not weird"; (b) said (referring to the practice of going to the toilet with the door shut), "It's not weird - its normal"; (c) said (referring to the suggestion of showering with the door open), "It's never gonna happen"; (d) said (referring to the suggestion he had something to hide), "I'm not doing anything in there, it's just not normal to shower with the door open."

14.

On 5 and 6 January 2012, the Speaker showered with the bathroom door open with the knowledge that the applicant was in the Speaker's residential flat.

5 15. On the morning of 14 January 2012, the Speakersaid to the applicant "Have you ever come in a guy's arse before?" (which the applicant understood asthe Speaker asking the applicant whether he had ejaculated semen in the course of homosexual anal intercourse) to which the applicant responded, "That's not the kind of question you ask people, Peter." 16. On or about late January/early February 2012: (a) theSpeaker repeated the question in paragraph 15 and added, "Twinks or Bears what are you into?"; (b) the applicant believed the question in subparagraph (a) as being a question relating to "types" or practices of male homosexual sexual partners which were of interest to the applicant; (c) 17. the applicant responded by saying "(t)hey're not questions you ask."

On 1 February 2012: (a) theSpeaker sent the applicant short messaging service (SMS) messages which included the following: (i) (ii) (iii) (iv) "If you interested we could be closer" "Your call if u want to keep degrees of separation. No toes" "I told him positrion [sic] open" "But your call and no hard feelings in that you only want businesslike contact. In that event of the difficulty in our personal [sic]" (ii) (b) "U want something more? U brillianmt [sic] at massages."

after reading the SMS messages, the applicant believed the Speakerwas pressuring or entreating him to engage in a relationship of emotional intimacy and acts of sexual intimacy;

(c) (d)

the applicant rejected these approaches; shortly after this rejection, the applicant: (i) was directed to make future contact with the Speaker through another member of the Speaker's staff (being Tim Knapp); and (ii) had his invitation withdrawn to attend a function involving a delegation from the Independent State of Samoa.

18.

On 26 February 2012: (a) the applicant informed the Speaker that he was staying in Canberra; and

(b)

theSpeaker sent to the applicant, on two occasions, an SMS message "Lucky Canberra. Tim conroy (sic) thought you were a nice twink!"

19.

On 1 March 2012, while the applicant was showing the Speaker a video of the Speaker on a video sharing website ("YouTube") on his laptop computer, the Speaker began stroking the applicant's arm and said simultaneously: "You do such a beautiful job with these videos"; at which point the applicant moved his arm awayimmediately.

20.

On 20 March 2012, the Speaker walked into the applicant's office and moved close to him and said "Can I kiss you both?" (notwithstanding there was no other person in the office) and the applicant said "no" and moved away.

Contravention by Commonwealth of the FWA 21. The Speaker's conduct pleaded in paragraphs 9,11,12,14,15,16(a), 17,18(b), 19 and 20 (and each component part of the conduct pleaded in paragraphs 9,11,12,14,15,16(a), 17, 18(b), 19 and 20in any combination) (Relevant Conduct): (a) was done by the Speaker as a public sector employee's employing authority acting on behalf of the employee's employer (being the Commonwealth); (b) by reason of section 795(2) of the FWA, is taken to have been done by the Commonwealth; and/or (c) was conduct with a sufficiently close connexion to the employment of the applicant to make the Commonwealth responsible for the acts of the Speaker; and/or (d) was otherwise conduct of the Speaker attributable to the Commonwealth by reason of a special rule of attribution which is applicable by reason of the matters pleaded in paragraphs 1 to 6. 22. The Relevant Conduct was conduct which: (a) caused the applicant to feel offended, humiliated and caused him distress and anxiety which occasioned sufficient stressresulting in the applicant developing physical symptoms and, as a consequence, injured the applicant in his employment; and/or Particulars Particulars will be provided at the time of service of opinion evidence. (b) altered the position of the applicant to his prejudice; and/or Particulars

7 The apphcant was required to work in a sexually hostile working environment. (c) discriminated between the applicant and other employees of the Commonwealth. Particulars The applicant was treated less favourably than female employees and/or heterosexual employees in circumstances that were the same or not materially different in the terms and conditions of employment and/or by subjecting the applicant to a detriment. 23. By reason of the matters pleaded in paragraphs 21 to 22, the Relevant Conduct constituted adverse action within the meaning of section 342 of the FWA (Adverse Action). 24. The Adverse Action was taken against the applicant because of: (a) (b) 25. his sex, being male; and/or his sexual preference, being homosexual.

In the premises, the Commonwealth contravened section 351 of the FWA (Commonwealth section 351 Contravention).

26.

Further, the applicant had a workplace right within the meaning of section 341 of the FWA, being the entitlement to the benefit of working in a psychically and psychologically safe workplace which was free from harassment and discrimination (Workplace Right). Particulars Part I of the Enterprise Agreement.

27.

By reason of the applicant's conduct pleaded in paragraph 17(c), the applicant exercised the Workplace Right.

28.

By reason of the Speaker's conduct pleaded in paragraph 17(d), the Speaker altered the applicant's position to his prejudice because the applicant exercised the Workplace Right (Further Adverse Action).

29.

In the premises, the Commonwealth contravened section 340 of the FWA (Commonwealth section 340 Contravention).

Contravention by the Speaker of the FWA 30. The Speaker by engaging in the Relevant Conduct: (a) aided, abetted, counseled or procuredthe Commonwealth section 351 Contravention; and/or

(b)

by act, was directly or knowingly concerned in or party to the Commonwealth section 351 Contravention

31.

The Speaker by engaging in the conduct pleaded in paragraph 17(d): (a) aided, abetted, counseled or procuredthe Commonwealth section 340 Contraventionand/or (b) by act, was directly or knowingly concerned in or party tothe Commonwealth section 340 Contravention.

32.

The Speaker by reason of the matters pleaded: (a) in paragraph 30, the Speaker was involved in the Commonwealth section 351 Contravention within the meaning of section 550(2) of the FWA; and/or (b) in paragraph 31, the Speaker was involved the Commonwealth section 340 Contravention within the meaning of section 550(2) of the FWA; and (c) is, by reason of section 550(1) of the FWA, taken to have: i. contravenedsection 351 of the FWA(Speaker section 351 Contravention); and/or ii. contravened section 340 of the FWA (Speaker section 340 Contravention).

Breach of Contract 33. Further, or in the alternative, by reason of: (a) (b) the Relevant Conduct; and theattribution of the Relevant Conduct to the Commonwealth by reason of the matters pleaded in paragraph 21, the Commonwealth: i. did notco-operate in achieving the contractual objects of the Employment Contract; and/or ii. did not comply with honest standards of conduct; and/or iii. did not comply with standards of conduct that were reasonable having regard to the interests of the parties to the Employment Contract; and/or iv. did not provide a safe system of work forthe applicant. Particulars

The applicant was required to work in a sexually hostile working environment preventing him from performing the Employment Contract according to its terms and enjoying the benefit of his employment contract and/or having a work environment consistent with that provided for in the Enterprise Agreement and having to endure unreasonable work conditions having regard to his interests under the Employment Contract; the applicant was subjected to a detriment because of his refusal of the Speaker's sexual advances). 34. In the premises, the Commonwealth breached the terms of the Employment Contract being the implied terms pleaded in paragraphs 5(b) and/or 5(c). Loss and Damage 35. By reason of the contraventions of the FWA and/or the breach of the Employment Contract, the applicant suffered loss and damage. Particulars Offence, humiliation, distress, anxiety and stress (including physical symptoms); dislocation to life; further particulars will be provided at the time of the service of opinion evidence.

Date: 15May2012

^ Signed by Michael Harmer Solicitor for the Applicant

This pleading was prepared by Michael Harmer, Solicitor, R Francois of Counsel and M B J Lee of Senior Counsel.

10

Certificate of lawyer I,Michael Harmer, certify to the Court that, in relation to the statement of claim filed on behalf of the Applicant, the factual and legal material available to me at present provides a proper basis for each allegation in the pleading.

Date: 15 May 2012

Signed by Michael Harmer Lawyer for the Applicant