FEDERAL COURT OF AUSTRALIA
Adams v Director of the Fair Work Building Industry Inspectorate [2017] FCAFC 228
Appeal from: Application for leave to appeal: Director of the Fair Work Building Industry Inspectorate v Adams [2015] FCA 828 File number: WAD 488 of 2015 Judges: NORTH, DOWSETT AND RARES JJ Date of judgment: 22 December 2017 Catchwords: INDUSTRIAL LAW – whether appellants engaged in industrial action in contravention of ss 417(1) and 421(1) of the Fair Work Act 2009 (Cth) – evidence sufficient to found reasonable inferences that appellants failed to attend or remain at work and this was action of an industrial nature – appeal dismissed. Legislation: Acts Interpretation Act 1901 (Cth) s 13(1)
Evidence Act 1995 (Cth) s 140, Pt 3.2 Div 3
Fair Work Act 2009 (Cth) ss 3, 12, 13, 19, 171, 417(1), 421(1), 202(1), 203
Fair Work (Building Industry) Act 2012 (Cth) s 4(1)
Federal Court of Australia Act 1976 (Cth) ss 4, 24(1)
Judiciary Act 1903 (Cth) s 78B
Workplace Relations Act 1996 (Cth) s 4(1)(d)
Federal Court Rules 2011 r 16.01
Cases cited: Adler v Australian Securities and Investments Commission (2003) 179 FLR 1
Alcan (NT) Alumina Ltd v Commissioner of Territory Revenue (Northern Territory) (2009) 239 CLR 27
Australian Securities and Investments Commission v Fortescue Metals Group Ltd (No 5) (2009) 264 ALR 201
Australian Securities and Investments Commission v Hellicar (2012) 247 CLR 345
Australian Securities and Investments Commission v Rich (2004) 220 CLR 129
Briginshaw v Briginshaw (1938) 60 CLR 336
Chong v CC Containers Pty Ltd [2015] VSCA 137
Coleman v Power (2004) 220 CLR 1
Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (2015) 320 ALR 61
Hadgkiss v Construction, Forestry, Mining & Energy Union (2005) 146 IR 106
Jayasena v The Queen [1970] AC 618
Johnson Tiles Pty Ltd v Esso Australia Pty Ltd (2000) 104 FCR 564
Jones v Dunkel (1959) 101 CLR 298
Klein v Metropolitan Fire and Emergency Services Board (2011) 208 FCR 178
Kuhl v Zurich Financial Services Australia Ltd (2010) 243 CLR 361
Lange v Australia Broadcasting Corporation (1997) 189 CLR 520
Levy v State of Victoria (1997) 189 CLR 579
MacDonald v Australian Securities and Investments Commission (2007) 73 NSWLR 612
Marshall v Director-General Department of Transport (2001) 205 CLR 603
McCloy v New South Wales (2015) 257 CLR 178
McNamara v Consumer Trader and Tenancy Tribunal (2005) 221 CLR 646
Police Service Board v Morris (1985) 156 CLR 397
R v Falconer (1990) 171 CLR 30
Reid v Howard (1995) 184 CLR 1
Strong v Woolworths Ltd (2012) 285 ALR 420
The Age Company Ltd v Communications, Electrical, Electronic, Information, Postal, Plumbing and Allied Services Union of Australia (2004) 133 IR 197
The Commonwealth v Director of Fair Work Building Industrial Inspectorate (2015) 258 CLR 482
Walker Corporation Ltd v Sydney Harbour Foreshore Authority (2008) 233 CLR 259
Heydon JD, Cross on Evidence (LexisNexis, 10th ed, 2015) Date of hearing: 8 and 9 August 2016
22 November 2016Registry: Western Australia Division: Fair Work Division National Practice Area: Employment & Industrial Relations Category: Catchwords Number of paragraphs: 169 Counsel for the Appellants: Mr P Morrissey SC with Ms J Watson Solicitor for the Appellants: Slater and Gordon (8 and 9 August 2016)
Eureka Lawyers (22 November 2016)Counsel for the Respondent: Ms G Archer SC with Ms H Millar Solicitor for the Respondent: Australian Government Solicitor
Table of Corrections 3 May 2020 In paragraph 55, the citation of Marshall v Director-General Department of Transport (2001) 205 CLR 603 at [62] is per McHugh J, not Hayne J. ORDERS
WAD 488 of 2015 BETWEEN: SCOTT ADAMS (and others named in the Schedule)
First Appellant
AND: DIRECTOR OF THE FAIR WORK BUILDING INDUSTRY INSPECTORATE
Respondent
JUDGES:
NORTH, DOWSETT AND RARES JJ
DATE OF ORDER:
22 DECEMBER 2017
THE COURT ORDERS THAT:
1.to the extent necessary there be leave to appeal against the judgment of Barker J dated 12 August 2015;
2.the appeal be dismissed;
3.the matter be remitted to the primary Judge for hearing and determination of all outstanding questions;
4.any party seeking an order for the costs of this appeal file submissions within 14 days of the publication of these reasons;
5.any submissions in reply be served within a further period of 7 days; and
6.there be liberty to apply.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
THE COURT:
At first instance the respondent (“Fair Work”) sought declarations against, and the imposition of pecuniary penalties upon each of the appellants and two other persons. Those two persons were the thirty‑first and seventy‑fifth respondents below, against each of whom Fair Work did not press its case. Fair Work alleged contraventions of ss 417(1) and 421(1) of the Fair Work Act 2009 (Cth) (the “Fair Work Act”). The primary Judge found that the alleged contraventions of s 417(1) were established against all appellants. As against those appellants his Honour dismissed the application as it concerned s 421(1).
At the beginning of the hearing, the Court ordered that the appellants have leave to appeal against his Honour’s decision concerning s 417(1). Leave was unopposed, and the primary Judge had clearly found that the appellants to this appeal had contravened s 417(1). However order 1 made by the primary Judge was in the form of a finding. By virtue of s 24(1) and s 4 of the Federal Court of Australia Act 1976 (Cth) (the “Federal Court Act”), an appeal must be against a judgment, decree, order or sentence, including a conviction.
It is not clear whether the decision to seek leave was motivated by a concern about the form of the order or by a concern that it did not dispose of all matters in issue between the parties, the issue of penalty being outstanding. Of course, if there is no judgment, as that term is defined in s 4, then there can be no appeal, with or without leave. However we consider that order 1 should be treated as being a declaration as sought by Fair Work in the originating application. A declaration need not necessarily be expressed as such. It is only necessary that it finally resolve a matter in issue between the parties. It is clear that his Honour so intended. It was included in the formal orders as an order. Further, the other orders indicated that the only outstanding issue was penalty. The parties conducted the case on that basis. Were it necessary that we do so, we would make appropriate orders pursuant to s 51 of the Federal Court Act. However we do not think that any such action is necessary. As to whether the order is otherwise interlocutory or final, we note the observation of French J (as his Honour then was) in Johnson Tiles Pty Ltd v Esso Australia Pty Ltd (2000) 104 FCR 564 at [42]:
The application of the leave requirement should not involve the expenditure of significant intellectual energy on the distinction between final and interlocutory judgments.
The appellants appeal against the primary Judge’s decision concerning contraventions of s 417(1). Fair Work appealed against the dismissal of the proceedings pursuant to s 421(1). However that appeal was discontinued by consent.
THE PLEADED CASE
As it concerned s 417(1), the primary Judge summarized Fair Work’s pleaded case as follows:
·John Holland Pty Ltd (“John Holland”) was the head contractor responsible for the construction of the New Children's Hospital project located in Nedlands, Western Australia (the “site”);
·Crown Construction Services Pty Ltd (“Crown”) was engaged to perform work on the project at the site as a subcontractor to John Holland;
·Crown engaged the appellants, each of whose employment consisted of, or included, building work, and so was a “building industry participant” within the meaning of s 4(1) of the Fair Work (Building Industry) Act 2012 (Cth);
·on 13 September 2012, an enterprise agreement, signed and dated 21 August 2012 and entitled Crown Construction Services Pty Ltd Enterprise Agreement 2012 (the “Crown enterprise agreement”), was approved under the Fair Work Act;
·the Crown enterprise agreement bound the Construction, Forestry, Mining and Energy Union (“CFMEU”) and each of the appellants (who may also be referred to as “Crown employees”) and had a nominal expiry date of 31 October 2014;
·on 28 February 2013, the Crown employees were rostered to start work at 6.30 am;
·on 28 February 2013, from approximately 7.30 am each of the Crown employees had left the site; and failed or refused to attend for work at the site; and/or failed or refused to perform any work at all on the site; and thus engaged in “industrial action” within the meaning of s 19(1)(c) of the Fair Work Act;
·this industrial action was not authorized or agreed to by Crown; and
·in the premises, each of the respondents, as Crown employees, contravened s 417(1) of the Fair Work Act by taking this industrial action.
THE STATUTORY FRAMEWORK
Section 417 provided as follows:
(1)A person referred to in subsection (2) must not organise or engage in industrial action from the day on which:
(a)an enterprise agreement is approved by the FWC until its nominal expiry date has passed; or
(b)a workplace determination comes into operation until its nominal expiry date has passed;
whether or not the industrial action relates to a matter dealt with in the agreement or determination.
...
(2) The persons are:
(a)an employer, employee, or employee organisation, who is covered by the agreement or determination; or
(b)an officer of an employee organisation that is covered by the agreement or determination, acting in that capacity.
...
(3)If a person contravenes subsection (1), the Federal Court or Federal Circuit Court may do either or both of the following:
(a) grant an injunction under this subsection;
(b) make any other order under subsection 545(1);
that the court considers necessary to stop, or remedy the effects of, the contravention.
(4)The court may grant an injunction under subsection (3) only on application by a person referred to in column 2 of item 14 of the table in subsection 539(2).
(5)Despite subsection 545(4), the court may make any other order under subsection 545(1) only on application by a person referred to in column 2 of item 14 of the table in subsection 539(2).
The term “industrial action” is defined in s 19 of the Fair Work Act as follows:
(1) Industrial action means action of any of the following kinds:
(a)the performance of work by an employee in a manner different from that in which it is customarily performed, or the adoption of a practice in relation to work by an employee, the result of which is a restriction or limitation on, or a delay in, the performance of the work;
(b)a ban, limitation or restriction on the performance of work by an employee or on the acceptance of or offering for work by an employee;
(c)a failure or refusal by employees to attend for work or a failure or refusal to perform any work at all by employees who attend for work;
(d)the lockout of employees from their employment by the employer of the employees.
Note: In Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v The Age Company Limited, PR946290, the Full Bench of the Australian Industrial Relations Commission considered the nature of industrial action and noted that action will not be industrial in character if it stands completely outside the area of disputation and bargaining.
(2) However, industrial action does not include the following:
(a)action by employees that is authorised or agreed to by the employer of the employees;
(b)action by an employer that is authorised or agreed to by, or on behalf of, employees of the employer;
(c)action by an employee if:
(i)the action was based on a reasonable concern of the employee about an imminent risk to his or her health or safety; and
(ii)the employee did not unreasonably fail to comply with a direction of his or her employer to perform other available work, whether at the same or another workplace, that was safe and appropriate for the employee to perform.
(3)An employer locks out employees from their employment if the employer prevents the employees from performing work under their contracts of employment without terminating those contracts.
...
BACKGROUND
The case arose out of events which occurred on 28 February 2013 at the site. In their written submissions on appeal, the appellants said:
10.At the hearing, [Fair Work] adduced evidence from three witnesses: Mr Stephen Grafton Chaseling, the construction director for John Holland on the project at the site; Ms Sarah Louise Hale, the human resources industrial relations manager for John Holland on the project at the site; and, Mr Christopher Richard Stanley, who was engaged by [Fair Work].
11.Relevantly, Mr Chaseling gave evidence of what had occurred on the morning of 28 February 2013 at the site:
a)at around 6.20 am, he observed CFMEU officials addressing a group of workers in the car park opposite the main entrance to the site;
b)that meeting began to disperse at 6.34 am and workers began to enter the site through a main entrance that requires them to swipe their electronic personnel card on an electronic reader;
c)CFMEU officials Matt Waters and Peter Joshua sought an assurance from Mr Chaseling that the workers would not be docked pay for being late;
d)Mr Chaseling advised the CFMEU officials that he could not give that assurance because it was up to the individual employers;
e)Mr Waters said to the congregated workers not to go into the site because John Holland would not guarantee that they would not be docked;
f)At that point some workers stopped entering the site, some who entered the site then left the site, and some continued to enter the site;
g)Mr Chaseling instructed the security guard to open the gate next to the main entrance to let workers in because a crowd was trying to access the site;
h)Some, but not all, of those workers swiped their electronic personnel cards on a mobile card reader held by a security guard;
i)Shortly afterwards, the workers congregated again at the car park;
j)That meeting began to disperse at around 6.50am;
k)Following that meeting, some of the workers did not return to the site that day, and some of the workers returned to the site, collected their tools and lunch boxes and then left the site and did not return;
l)Mr Chaseling was not aware of any authorisation from John Holland or Crown for any of the workers to leave the site early.
12.The electronic card records of John Holland that recorded entrances and exits from the site on 28 February 2013 were exhibited to Mr Chaseling’s Affidavit.
13. Ms Hale gave evidence that was largely consistent with that of Mr Chaseling.
14.Mr Stanley gave evidence of the investigation that was undertaken by Inspector Kealey into whether there were any contraventions of the [Fair Work Act] on 28 February 2013 by workers at the site. Three categories of evidence that are relevant for present purposes were adduced through Mr Stanley:
a)business records relating whether and when the appellants worked on 28 February 2013, namely: timesheets of Crown for the week ending 5 March 2013; pay slips of Crown for the pay period ending 5 March 2013; and, sign on/off sheets of Crown dated 28 February;
b)two flyers regarding a political march and rally organised jointly by several unions that was scheduled for 28 February 2013; and
c)an extract from the Crown Site Diary dated 28 February 2013 which contained the following sentences under the heading “General Notes”:
Strike due to meeting called by CFMEU before work – ran over by approx. 5 minutes. Matt Waters asked JH if blokes would be docked was told was not up to JH so blokes went
March also booked by CFMEU @10.30.
and which, further down the page, under the heading “Lost Time/Delays”, contained the single word “Strike” (the diary extract).
(Footnotes omitted.)
Paragraph 11(h) may be a little misleading. There were two adjacent access points, one of which was equipped with a fixed electronic card reader and one of which, on the day in question, was manned by a staff member with a mobile electronic card reader. We do not understand Mr Chaseling to have conceded that on 28 February 2013, anybody entered the site without swiping his card through one or other of the electronic card readers in use. However he conceded in cross‑examination that it was at least possible that a person might leave or enter without swiping his card.
Although it seems likely that some employees left the site, or did not enter the site because of Mr Waters’ advice or direction, it is also likely that some workers did not enter the site or left the site because a rally and march, sponsored by the CFMEU and other trade unions, were scheduled to commence at midday on 28 February 2013. The flyers referred to above concerned the proposed activities. We will say a little more about the flyers at a later stage.
CONDUCT OF THE TRIAL
Each appellant admitted that:
·Fair Work was entitled to bring the proceedings;
·he was an employee of Crown, Crown was a “national system employer” under s 13 of the Fair Work Act, his employment consisted of, or included, building work and he was therefore a “building industry participant”;
·the CFMEU was an “employee organisation” under s 12 of the Fair Work Act;
·on 13 September 2012, the Crown enterprise agreement was duly approved; and
·the Crown enterprise agreement bound the CFMEU and each of the appellants as Crown employees, and had a nominal expiry date of 31 October 2014.
Each appellant asserted that he relied on the precise terms of the Crown enterprise agreement as to its coverage and operation. All of the appellants are male. None of the appellants gave evidence. On appeal, each submits that his case at first instance was that:
·his actions did not constitute “industrial action” as they did not have the requisite “industrial character”;
·on the evidence, Crown authorized or agreed to the relevant actions;
·the evidence was insufficient to prove the case against him; and
·the case against him had to be proven discretely, that is upon the evidence admissible against him.
(Appellants’ outline of submissions at paras 15‑16.)
DOCUMENTARY EVIDENCE
In seeking to prove that each appellant failed or refused to attend for work or to do work, Fair Work relied almost entirely on documentary evidence, namely:
·entries to, and exits from the site as recorded by electronic card readers, which records were maintained by John Holland;
·timesheets, which timesheets showed whether, and for how long each appellant worked on 28 February 2013;
·payslips created by Crown, which payslips showed the amounts paid to appellants for work done on 28 February 2013; and
·sign on/off sheets.
There seems to have been no direct evidence as to how the timesheets and sign on/off sheets were created. Visual inspection suggests that each employee probably entered the information concerning himself. The appellants seem to have proceeded on that basis. It probably was generally the case, although it does not necessarily follow that all entries or signatures were so made. In some cases, there are entries in the sign on/off sheets for appellants who were not shown in the electronic card reader records as having entered the site. In other cases entered sign on/off times were inconsistent with entry and departure times as shown by those records. As none of the appellants gave evidence, these inconsistencies were not explored. The payslips were, we infer, prepared by Crown by reference to the timesheets and the sign on/off sheets.
THE PRIMARY JUDGMENT
At [15] his Honour identified the issues arising in the proceedings under s 417(1) as follows:
(a)Has [Fair Work] proved that each of the [appellants], on 28 February 2013, engaged in “industrial action”, as defined by the [Fair Work] Act?
(b) If so, did their employer, Crown, authorise or agree to their actions?
The primary Judge identified two aspects to the first issue. The first was whether the appellants had attended for work, and/or performed work on 28 February 2013. The second was whether their conduct comprised industrial action.
At [23] and [24], the primary Judge said:
23.On the face of the evidence adduced on behalf of [Fair Work], the Court finds that each of the [appellants], on 28 February 2013, either failed to attend for work at the site or failed to perform any work at all having attended for work at the site.
24.The evidence adduced by [Fair Work], constituting electronic card records of entries and departures from the site at material times on that day, timesheets, payslips and sign on/off sheets inevitably leads to such a finding, on the balance of probabilities:
(1)John Holland operated an electronic card system for the purposes of recording the time that each worker engaged at the site entered and exited. A copy of the records of the electronic card reader was produced. [Fair Work], through Mr Chaseling from John Holland, adduced evidence about the operation of the electronic and software systems that generated those records.
(2)In light of logical inferences that can be drawn from the content and form of the electronic card records, reinforced by the ancillary oral evidence from Mr Chaseling, those records admissibly evidence representations about those Crown employees that entered and exited the site on 28 February 2013, and the time at which those employees entered and exited.
(3)The electronic card records show two types of record relating to the attendance of the Crown employees:
(a)those for whom it recorded both a “time in” and a “time out”. There are 19 [appellants] in this category; and
(b)those for whom it recorded a “time in” but no “time out”. There are eight [appellants] in this category.
(4)Of the 19 [appellants] for whom a “time out” is recorded, the latest “time out” recorded is 8.16am. It can reasonably be inferred that, from that time, all of those 19 [appellants] had left the site and performed no further work that day.
(5)The Court also readily infers that the eight [appellants] for whom no “time out” is recorded left the site without correctly swiping the electronic card reader. Although it is therefore not possible to determine, on the basis of the electronic card records, at what time those [appellants] left the site on 28 February 2013, the strong probability on the available evidence is that they did so at some point soon after the pre-start meeting that morning ended.
(6)There are also 49 [appellants] in relation to whom the electronic card record displays no entry at all. The Court reasonably infers that there is no entry recorded for those [appellants] for the reason that they did not enter the site at all on 28 February 2013.
(7)The timesheets of Crown adduced in evidence are business records to which the hearsay rule does not apply, containing a representation of the time worked in the week ending 5 March 2013 by each employee. There is such a timesheet corresponding to each of the [appellants].
(8)None of the timesheets record that any of the [appellants] worked any time on 28 February 2013.
(9)[Fair Work] acknowledges that some 17 of the timesheets record that the applicable [appellant] was “sick” on 28 February 2013. However no medical certificate relevant to any of these Crown employees was produced to the Director during the course of its investigation. No affirmative case to that effect has been foreshadowed, or put, in respect of any [appellant].
(10)The payslips of Crown are, likewise, business records to which the hearsay rule does not apply, containing a representation of the hours which each [appellant] worked during the pay period ending 5 March 2013. There is such a payslip corresponding to each of the [appellants].
(11)Each of the payslips shows the number of “normal time” hours worked by the [appellant] corresponding to that payslip, just as each of the timesheets records the number of “normal time” hours worked by the applicable [appellant].
(12)In each case, the number of “normal time” hours recorded on the timesheet relating to a given [appellant] is the same as the “normal time” hours recorded on the payslip relating to that [appellant].
(13)From this the Court reasonably infers that no [appellant] worked any “normal time” hours that were not recorded on the timesheet. It would be expected and indeed presumed that any [appellant] that had worked those hours would have been appropriately paid for that work.
(14)Thus the Court comfortably infers that the timesheets accurately record that no [appellant] performed any work on 28 February 2013.
(15)Further, no payslip relating to [an appellant] records any amount of leave entitlements having been paid to any of the [appellants], whether those in relation to whom an entry of “sick” was recorded on the timesheet for 28 February 2013, or any others.
(16)From this it can readily be inferred that none of the [appellants] was on any period of personal leave on 28 February 2013.
(17)Finally, the Crown sign on/off sheets for 28 February 2013 constitute a distinct category of business records to which the hearsay rule does not apply, evidencing representations regarding those Crown employees that attended for work on 28 February 2013.
None of these findings is specifically challenged in the further amended notice of appeal.
At [25]‑[27] his Honour observed (concerning the sign on/off sheets):
25The [appellants] can be divided into four categories depending on the information displayed on the 28 February sign on/off sheet in relation to them:
(1)Those whose name is not listed on the 28 February sign on/off sheet. There are two [appellants] in this category.
(2)Those in relation to whom no entry is recorded, and whose name is listed on the 28 February sign on/off sheet. There are 47 [appellants] in this category.
(3)Those in relation to whom a “sign on” time but no “sign off” time is recorded. There are 10 [appellants] in this category.
(4)Those in relation to whom both a “sign on” time and a “sign off” time are recorded. There are 17 [appellants] in this category. In each instance, the “sign off” time is 11am, except for the 41st [appellant], for whom the “sign off” time is 3pm (and the 75th [appellant], for whom the “sign off” time is 4pm).
26Concerning these four categories, the Court accepts [Fair Work’s] submission that:
(1)In relation to those [appellants] in category (1), no inference can be drawn as to their attendance in reliance on the 28 February sign on/off sheet.
(2)In relation to those [appellants] in category (2), it can be inferred that they did not attend work at all on 28 February 2013.
(3)In relation to those [appellants] in category (3), the electronic card records show that six had left the site by 8.16am, or did not “swipe on” at all. The most likely explanation is that these [appellants] left the site without performing any work and without “signing off”.
(4)In relation to those [appellants] in category (4), viewing the sign on and sign off representations strictly in isolation, an inference might be drawn that they attended work for the hours recorded on the 28 February sign on/off sheet. However, the weight of the competing evidence set out above indicates that such an inference would be an improbable one, as:
(a)The electronic card records show that 11 of these [appellants] had left the site by 8.16am. This is probative of the “sign off” time as reflected in the 28 February sign on/off sheet being inaccurate.
(b)The electronic card records contain no record at all for one of these [appellants] (26th [appellant]). It can be inferred that he did not attend work at all if he did not swipe on or off at the electronic card reader.
(c)The electronic card records reflect no “time out” record for the remaining six [appellants]. However, the fact that the timesheets and payslips show that these [appellants] were not paid for any work on 28 February 2013 is strongly probative of them not in fact having performed any work on 28 February 2013.
27In those circumstances there is a firm and cogent evidentiary basis for the Court to find, on a comfortable balance of probabilities, that in the case of each of the [appellants] appearing at trial:
(1)despite being rostered to attend site and perform work on 28 February 2013, each either did not so attend site, or not perform work as rostered, or both; and
(2)accordingly each undertook “industrial action” within the meaning of that term under the [Fair Work] Act.
At [28]‑[32] the primary Judge considered the meaning of the term “industrial action” for the purposes of s 417. At first instance and on appeal, there has been confusion as to the status of a note which follows s 19(1) (set out above). The confusion concerns its relevance to the identification of the matters to be proven in order to establish that any alleged contravention of s 417 was “industrial action”. At [29] his Honour summarized the appellants’ submissions at first instance as follows:
As to the requirement of proving an “industrial” character to action taken, the [appellants] contend as follows:
(1)While the definition of industrial action has been relatively stable across the [Fair Work] Act and predecessor legislation ... s 19 now includes a legislative note in updated terms. That note, at the conclusion of s 19(1), provides:
Note: In Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v The Age Company Limited, PR946290, the Full Bench of the Australian Industrial Relations Commission considered the nature of industrial action and noted that action will not be industrial in character if it stands completely outside the area of disputation and bargaining. (Emphasis added.)
(2)In Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v The Age Company Limited, PR946290; (2004) 133 IR 197, the Full Bench of the Australian Industrial Relations Commission (Full Bench), while acknowledging that "so-called political strikes" had traditionally been captured by the definition of industrial action, said at [46]:
It seems to us likely that the legislature did not intend to include conduct which stands completely outside the area of disputation and bargaining and that accordingly the definition should be read giving some weight to the word industrial. But precisely how far this qualification might extend is a question of degree. We do not think it is desirable that we go further than is necessary to decide this case. As is clear, we have not found it necessary to go beyond the words of the definition. (Emphasis added.)
(3)The insertion of the legislative note in s 19 of the [Fair Work] Act evinces a clear intention from Parliament that weight be given to the word “industrial” in the definition of industrial action consistent with the comments of the Full Bench.
(4)Indeed, the Explanatory Memorandum to the Fair Work Bill 2008 (Cth) explicitly noted at [90] that:
The legislative note at the end of subclause 19(1) alerts the reader to the decision of the AIRC in Automotive, Food Metals, Engineering, Printing and Kindred Industries Union v The Age Company Ltd [2004] AIRC 1254. The note is included to clarify that the definition of industrial action is only intended to cover actions that have an industrial character and occur within the area of disputation and bargaining. (Emphasis added).
(5)In order to satisfy the Court that industrial action has occurred, as defined by s 19, [Fair Work] must demonstrate that the action alleged against the [appellants] had the requisite industrial character.
The decision referred to in the note and in the explanatory memorandum is reported sub nom The Age Company Ltd v Communications, Electrical, Electronic, Information, Postal, Plumbing and Allied Services Union of Australia (2004) 133 IR 197. Relevantly, the case related to the definition of the term “industrial action” in s 4(1)(d) of the Workplace Relations Act 1996 (Cth) (the “Workplace Relations Act”). That section serves a purpose similar to that of s 19(1)(c). However the provisions are, by no means, identical.
At [30]‑[33] his Honour concluded that although s 13(1) of the Acts Interpretation Act 1901 (Cth) (the “Acts Interpretation Act”) provided that the note was part of the Fair Work Act, it did not follow that it should govern the meaning of ss 19 and 417. His Honour gave particular weight to observations made by this Court in Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (2015) 320 ALR 61 at [118]. That paragraph is best read in the context of surrounding paragraphs. At [113]‑[121], the Full Court observed:
113The CFMEU relied on the note in s 19 of the [Fair Work] Act for its submission that the promulgation of the policy did not constitute “industrial action”.
114The note in s 19 of the [Fair Work] Act reads:
In Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v The Age Company Limited, PR946290, the Full Bench of the Australian Industrial Relations Commission considered the nature of industrial action and noted that action will not be industrial in character if it stands completely outside the area of disputation and bargaining.
115According to the Explanatory Memorandum to the Fair Work Bill 2008 (Cth), the note was included in the Act “to clarify that the definition of industrial action is only intended to cover actions that have an industrial character and occur within the area of disputation and bargaining”: cl 90. The note is part of the FW Act: see Acts Interpretation Act 1901 (Cth), s 13. The Acts Interpretation Act applies to all Acts, subject to any contrary intention (s 2). The note must therefore be taken into account in determining the meaning and scope of the words in s 19.
116In the case referred to in the note, the Age case, the Full Bench relevantly held at [46]:
It seems to us likely that the legislature did not intend to include conduct which stands completely outside the area of disputation and bargaining and that accordingly the definition should be read giving some weight to the word industrial. But precisely how far this qualification might extend is a question of degree. We do not think it is desirable that we go further than is necessary to decide this case. As is clear, we have not found it necessary to go beyond the words of the definition.
117The Full Bench’s comments are best understood in the context in which they were made. At [44]–[45], the Full Bench remarked:
44.Just as employer conduct is capable of different characterisations depending upon the context, so also is employee conduct. An employee who does not attend for work on account of illness may not be engaging in industrial action, while an employee who does not attend for work in support of a collective demand that the employer agree to alteration of the conditions of employment clearly is so engaged.
45.In a statutory context which is concerned with industrial disputation and enterprise bargaining it might fairly easily be concluded that a definition of industrial action is intended to be confined to action which occurs in the course of an industrial dispute or bargaining in relation to a demand concerning the conditions to be afforded by an employer to its employees. If such were the case, however, as counsel for the unions pointed out, so-called political strikes may not be amenable to an order pursuant to s.127 – a conclusion at odds with a number of Commission decisions and with the decision of the Federal Court of Australia in [Laing].
(Citations omitted.)
118The note in s 19 of the FW Act indicates that the legislature intended the Age case to guide the determination of whether action is “industrial action”. But the fact that a note is part of the Act does not mean that it can govern the meaning of the Act. This is particularly the case here because, contrary to what is suggested by the note in s 19, the Full Bench did not hold that action would never be industrial in character if it stood outside the area of disputation and bargaining. As the Full Bench observed in the Age case, political strikes constitute such action. In Laing French J observed at 31:
Industrial action may be caught by the section notwithstanding that it is intended to send a signal or communicate some message other than about a dispute with the employer. It is not necessary for the application of s 127 [of the Workplace Relations Act 1996 (Cth)] that it relate to an industrial dispute if it relates to work regulated by an award or a certified agreement. Thus employees might stop work without the authority of their employer and in breach of their contract of employment in order to attend a rally at Parliament House or some other form of demonstration or public meeting to express views about some issue not arising out of their relationship to their employer. In such a case where their work is regulated by an award or a certified agreement, s 127 is capable of application.
119These comments were made in relation to the WR Act, but the definition of “industrial action” in the FW Act is not relevantly different.
120Ultimately, the question posed by s 19(1) of the FW Act is whether action can be said to be “industrial” in character. If action takes place outside the area of disputation and bargaining, that is relevant in determining whether the action is “industrial”, but it is not determinative.
121In this case, the action the CFMEU was found to have organised was industrial in character. One purpose or motivation of the impugned conduct appears from the documents to be directed towards putting pressure on the employer to hire more employees. The limitation placed on overtime at Peak Downs is expressed as helping the union “to get more new employees like [yourself] a job”. That is an industrial agenda. The policy was also intended to affect the performance of work: cf. Laing at 31–32. We doubt whether it is also necessary to show that the relevant action occurred within the process of bargaining and disputation around the agreement. If it be necessary, we accept that there was no evidence that the overtime policy was mentioned during negotiations for the agreement. But the circumstances in which overtime could be required were part of the bargaining process.
The reference to the decision in Laing is to that of French J (as his Honour then was) in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Laing (1998) 89 FCR 17. We discuss this decision below. In the Age decision the Full Bench considered that s 4(1)(c) was not, in terms, limited to conduct which involved, “disputation and bargaining”. However the Full Bench left open the possibility that in some circumstances, the definition might have to be read down, presumably by virtue of other legislative provisions to which it applies. The Full Court seems to have so understood the decision. See [118]‑[120].
At [34]‑[37] the primary Judge said:
34In the view of the Court there is nothing in the circumstances of this case to suggest that the pleaded action of the [appellants] in failing to attend for work or in failing to perform work where they did, is not industrial in character. There is no evidence to suggest, for example, that what they did stood completely outside the area of disputation and bargaining. The evidence of Mr Chaseling and Ms Hale, concerning the events at about 6.35am on 28 February 2013, provides some of the relevant context for characterisation purposes. Their evidence shows that when Mr Waters of the CFMEU raised a question of employees being docked four hours pay by reason of being late to commence work that morning, and was not responded to satisfactorily by Mr Chaseling, so far as he was concerned, at least some of the [appellants’] actions complained of followed.
35To the extent that some of the [appellants], by inference, either did not return to work following the 6.35am exchange between Mr Chaseling and Mr Waters, or returned to work but then left having regard to that exchange, or because of a rally or march due to take place later in the day, plainly the action taken had an industrial character to it. It was about wages or, to the extent that other [appellants] chose to attend a political rally that day, or a march organised by the CFMEU as suggested by an entry in the site diary kept by Mr Ross Smith of Crown (see annexure CRS-7 to the affidavit of Mr Stanley), then the actions were also industrial in character. They were, in effect, about pay and conditions of work.
36To the extent that records show that a number of [appellants] had reported in “sick” on 28 February 2013, given the number who did and all the other circumstances adverted to, including the fact that a political rally and a march were organised for that day, I would infer that the “sick” notifications are not to be treated as accurate representations of the health of each of the [appellants] concerned. I accept the submission made on behalf of [Fair Work] that no medical certificates have been located, in the course of a comprehensive investigation conducted by [Fair Work], in respect of such non attendances at work, something which tends to confirm this finding; and none have been produced by any [appellant].
37While, on behalf of the [appellants], it is suggested that it was open to [Fair Work] to call representatives of Crown, such as Mr Ruggiero Antonio Ambrosino and Mr Ross Smith, to clarify the circumstances in which employees of Crown left work or did not attend work at the site on 28 February 2013, I do not consider that any particular inference should be drawn from [Fair Work’s] failure to do so.
His Honour made a finding at [34]-[35] that Mr Waters of the CFMEU asked Mr Chaseling at 6.35 am whether the workers (including those of the appellants who were then at the site) would be docked four hours pay because they were late in commencing work at the scheduled time of 6.30 am. That question related to the operation of s 474 of the Act which prohibited an employer from making any payment, in respect of at least four hours pay, to an employee who engaged in industrial action (not being protected industrial action under the Act) against the employer on the day. The meeting that ran beyond 6.30 am on 28 February 2013 was industrial action and, as the primary Judge correctly held, the actions of those appellants who were then present at the site in failing or refusing to work after the late conclusion of the meeting, were also of an industrial character, relating to their perception that, in accordance with s 474, they would be “docked” or lose some wages by force of s 474.
There are a number of reasons for doubting the applicability to the present case of the Age decision and that in BHP Coal. At a later stage we will discuss a number of those reasons. However there is one matter which we should address at this stage.
Both the primary Judge at [31] and the Full Court in BHP Coal at [115], proceeded upon the basis that s 13(1) of the Acts Interpretation Act had the effect that the note concerning the Age decision was part of the Fair Work Act. On appeal, it emerged that s 13 of the Acts Interpretation Act, as it stood at the time of the relevant events in BHP Coal, at the time of the relevant events in this case, and as it now stands did not, and does not apply to the construction of the Fair Work Act. Section 40A of that Act provides:
(1)The [Acts Interpretation Act], as in force on 25 June 2009, applies to this Act.
(2)Amendments of the [Acts Interpretation Act] made after that day do not apply to this Act.
That section commenced on 1 January 2010.
Section 2 of the Acts Interpretation Act provides:
(1) This Act applies to all Acts (including this Act).
Note:This Act also applies to legislative instruments, notifiable instruments and other instruments: see subsection 13(1) of the Legislation Act 2003 and subsection 46(1) of this Act.
(2)However, the application of this Act or a provision of this Act to an Act or a provision of an Act is subject to a contrary intention.
As at 25 June 2009, s 13 of the Acts Interpretation Act provided:
(1)The headings of the Parts Divisions and Subdivisions into which any Act is divided shall be deemed to be part of the Act.
(2) Every schedule to an Act shall be deemed to form part thereof.
(3)No marginal note, footnote or endnote to an Act, and no heading to a section of an Act, shall be taken to be part of the Act.
It follows that the note is not part of the Act. In their submissions in reply, the appellants made it clear that they did not submit otherwise. However they submitted that the note and the Age decision were consistent with their argument. Whether or not that be so, it is clear that to the extent that the Full Court in BHP Coal proceeded on the basis that the note was part of the Fair Work Act, it was mistaken. To the extent that the primary Judge proceeded on that basis he, too, was in error.
At [24] his Honour made findings based on the entries disclosed by the electronic card readers, including that those entries, “evidence representations about those Crown employees that entered and exited the site on 28 February 2013, and the time at which those employees entered and exited.” His Honour noted that exit times had not been recorded in all cases, inferring that such employees probably exited the site at some point after the end of the “pre‑start meeting”. His Honour inferred that where the electronic card readers showed that particular appellants had not entered the site, they had not done so. The primary Judge then noted that the timesheets indicated that none of the appellants had worked for any time on 28 February 2013. Where the timesheets had been marked “sick” on that day, no medical certificates were produced to Fair Work during its investigation, nor had any “affirmative” case of sickness been foreshadowed. No such case was put at the trial. His Honour noted that the payslips also disclosed no payment to any appellant for work on 28 February 2013, and no payment for that day for any reason such as sickness. Hence his Honour concluded that none of the appellants was on personal leave on that day. The term “personal leave”, as used in the Crown enterprise agreement, included sick leave.
In considering the sign on/off sheets, his Honour concluded that notwithstanding the evidence that an appellant had signed on or on and off, it was improbable that such appellant had performed any work. At [27] his Honour found:
In those circumstances there is a firm and cogent evidentiary basis for the Court to find, on a comfortable balance of probabilities, that in the case of each of the [appellants] appearing at trial:
(1)despite being rostered to attend site and perform work on 28 February 2013, each either did not so attend site, or not perform work as rostered, or both; and
(2)accordingly each undertook “industrial action” within the meaning of that term under the [Fair Work Act].
His Honour then dealt with the appellants’ case as put in their submissions. First the primary Judge dealt with the note to s 19 concerning the Age decision. As we have observed his Honour’s consideration was based upon the mistaken assumption that the note was part of the Act. His Honour also referred to the decision in BHP Coal which was based on the same misapprehension. However at [34] the primary Judge proceeded on the basis that if action fell within the ordinary meaning of s 19(1)(c), then such action was industrial action, unless it could be shown that such action, “stood completely outside the area of disputation and bargaining”. His Honour concluded that there was no basis for any such conclusion. His Honour also noted that the context in which the alleged industrial action occurred included the exchange between Mr Waters and Mr Chaseling as to whether workers would be paid for the full day, given the late start following the meeting.
At [35] his Honour concluded that to the extent that some appellants did not return to work, or returned to work and then left, “having regard to the exchange, or because of a rally or march due to take place later in the day”, the action had an industrial character. His Honour seems to have distinguished between conduct associated with the “exchange” and conduct associated with the proposed rally and march, considering that in both cases, the relevant actions would be industrial. He then concluded that such actions were about pay and conditions of work. This conclusion may have owed something to the discussion in the Age decision of political strikes and/or the consideration of that matter by French J in Laing, although the primary Judge did not refer to the latter case.
The primary Judge then considered a number of other issues, the first being the word “sick” which appeared on some of the timesheets for 28 February 2013. His Honour held that such word, used in connection with various appellants, did not constitute, “accurate representations of the health of each [appellant] concerned”, noting that no medical certificates had been found, and none had been produced by the appellants.
The appellants submitted that an adverse inference should be drawn against Fair Work because it did not call as witnesses, representatives of Crown. His Honour considered that he should not do so, and that there was sufficient other evidence to enable him to draw the necessary inferences. The appellants attacked the reliability of the documentary evidence concerning attendance on 28 February 2013. This submission depended upon alleged inconsistencies in the records and/or other possible explanations for absences or departures from the site. It included a challenge to Mr Chaseling’s evidence that the appellants were to have started work at 6.30am. His Honour accepted that evidence.
The appellants challenged the accuracy of the electronic card reader records. As we have said, the evidence suggests that it was possible for a person to enter or leave the site without the electronic card readers having recorded such movement, although there was no suggestion that such events were common. His Honour accepted that he could rely on those records. In this context his Honour again found that the “sick entries” were not plausible, given the absence of medical certificates and the absence of any payment to an appellant for “sick leave”.
The appellants submitted that three appellants had signed in but were not recorded by the electronic card readers as having entered the site. His Honour did not consider that this matter detracted from the availability of the inference that each of the appellants had engaged in industrial action. The appellants then urged that the decision in Briginshaw v Briginshaw (1938) 60 CLR 336 at 362 prevented the Court from inferring breaches by the appellants. His Honour correctly directed himself as to the decision in Briginshaw and rejected this submission.
Finally, the primary Judge dealt with the question of authorization or agreement. The appellants submitted that a note in the site diary constituted evidence of authorization or agreement by Crown to industrial action, at least with respect to the proposed rally and march. His Honour considered that the note was ambiguous, was limited to a rally at 10.30 am, and therefore did not relate to the whole of the appellants’ conduct and was contradicted by other entries on that page.
At [38] the primary Judge concluded:
In my view, the evidence adduced is sufficient and adequate to enable the Court to draw the reasonable inference that the failure of each of the respondents either to attend work or, having attended work, not to remain at work, was industrial action in that it was action of an industrial character.
APPEAL GROUNDS
The appellants appeal against the primary Judge’s findings and orders. The further amended grounds of appeal are as follows:
1.The learned Judge erred at paragraphs [50]-[56] in construing section 19(2)(a) of the [Fair Work Act] as placing a burden upon a [appellant] employee to establish that an employer had provided authorisation or agreement.
2.The learned Judge erred at paragraphs [16]-[56] by failing to give individual consideration to what the admissible evidence for the section 417(1) contravention was as against each of the 74 individual [appellants].
3.The learned Judge erred in finding that [Fair Work] had proven each individual [appellant] had contravened section 417(1) of the [Fair Work Act] in circumstances where there was insufficient admissible evidence to do so.
4.In the alternative, if the Full Court is satisfied that there was sufficient evidence to conclude that any of the appellants did attend a political rally on 28 February 2013, the learned Judge erred at paragraph [35] in concluding that attending a political rally that did not concern issues between an employer and employees would constitute "industrial action" within the meaning of section 19 of the [Fair Work Act].
In connection with ground 4, notice was given pursuant to s 78B of the Judiciary Act 1903 (Cth).
SOME PRELIMINARY OBSERVATIONS
It is fair to observe that the appellants made little attempt, before or at the trial, to identify their respective defences. They seem to have believed that the so‑called “penalty privilege” excused them from compliance with the pleading rules of this Court, and that they might simply raise issues at trial which Fair Work was then obliged to prove or disprove. In the past there may have been pecuniary penalty proceedings in which such an approach was permitted. However one wonders about its appropriateness in view of the decision of the High Court in The Commonwealth v Director of Fair Work Building Industrial Inspectorate (2015) 258 CLR 482 at [53].
On appeal the appellants again took a very liberal approach to the issues. Indeed, even in submissions in reply, senior counsel seemed to consider that he was at liberty to pursue new grounds of appeal. He was invited to apply for an appropriate amendment to the notice of appeal, but he did not accept that invitation. Fair Work seems to have taken an indulgent approach to such conduct.
We note that although the trial lasted for two days, the appeal hearing took three days. The appellants’ appeal submissions involved much speculation about possible “non‑industrial” reasons for individual absences from work on 28 February 2013, rather than the identification of alleged errors in the primary Judge’s reasons. Recurring themes of the appellants’ case concerned:
·inferences available from the fact that Fair Work did not call certain managerial employees of Crown who had been summoned to attend;
·the assumption that Fair Work had to prove the purpose of each of the appellants in failing or refusing to attend for, or to perform work;
·the evidential burden of proof concerning possible explanations for the failure of each appellant to attend for work and/or to perform work; and
·the application of the decision in Jones v Dunkel (1959) 101 CLR 298.
CONSTRUCTION OF SECTIONS 417 AND 19
At the hearing of the appeal, the appellants took a bifurcated approach to the proposed construction of ss 417 and 19. The whole of the first day and part of the second seemed to be conducted upon the basis that s 19 was to be construed in accordance with the note concerning the Age decision. However when junior counsel addressed grounds 3 and 4, it became apparent that the appellants were taking a rather more complex approach to the construction question. Their favoured position was that conduct would comprise industrial action only if it related to a relevant enterprise agreement.
It is said that the primary Judge, in effect, commenced from the position that failure to attend for, or perform work comprised industrial action unless there was some reason for taking a different approach. It was submitted that:
This was, however to start from fundamentally the wrong position. His Honour should have considered what action each appellant worker actually performed, and whether there was evidence to establish that this action was industrial.
We suspect that this proposition reflects the confusion created by the Age decision and the note to s 19. We understand the primary Judge to have concluded that the appellants’ conduct constituted industrial action because it fell within the definition provided by s 19. His Honour then examined the circumstances of the case in order to determine whether there was any reason to conclude that the appellants’ conduct stood, “completely outside the area of disputation and bargaining”. We consider that it was necessary that his Honour address the first question. We discuss below the suggestion that there was any further question to be addressed. However the appellants’ point seems to be that characterization of conduct as “industrial action” depends upon something more than the fact that such conduct falls within the s 19 definition.
Fair Work took a somewhat ambivalent approach to the construction question. In its submissions on appeal senior counsel initially indicated that there were three possible approaches to the construction of s 19, namely:
·that industrial action was conduct which fell within s 19;
·that at least in this case, the appellants’ conduct amounted to industrial action because of the exchange between Mr Waters and Mr Chaseling and the proposed rally and march; or
·that as the appellants submitted, conduct will be industrial action only if it relates to the relevant enterprise agreement.
Ms Archer, who did not appear at first instance, initially indicated that Fair Work had, at trial, adopted the second approach, and that she was reluctant to depart from it for reasons of fairness. However, after the second hearing day, and before the third, she learned that at first instance, Fair Work had, at trial, adopted the first approach, with the second approach as a fall‑back position. For reasons which appear below, we consider that, unless the particular context of the Fair Work Act in which s 19 is engaged dictates otherwise, s 19 effectively defines the term “industrial action” for all purposes. Our reasons for this conclusion include the fact that the note cannot be treated as part of the Fair Work Act. Given that there is no reference in s 19(1)(c) to, “disputation and bargaining”, it is difficult to see how the note can be taken at face value.
We should also say something about the relevant explanatory memorandum which accompanied the Fair Work Bill 2008 (Cth). It stated at para 90 that:
The legislative note at the end of subclause 19(1) alerts the reader to the decision of the AIRC in Automotive Food, Metals, Engineering, Printing and Kindred Industries Union v The Age Company Ltd [2004] AIRC 1254. The note is included to clarify that the definition of industrial action is only intended to cover actions that have an industrial character and occur within the area of disputation and bargaining.
This summary of the Age decision suggests that in order that conduct comprise industrial action, it must be industrial in character and occur within the area of disputation and bargaining. Such an approach would effectively limit the term to conduct characterized as industrial and occurring in the course of a dispute or bargaining. Neither the Full Bench in the Age decision, nor French J in Laing, nor the Full Court in BHP Coal accepted such a proposition.
There are other reasons which militate against treating the Age decision as being of assistance for present purposes. It concerned s 4 of the Workplace Relations Act, the wording of which differed substantially from that of s 19 of the Fair Work Act. In particular, the operation of s 4 was limited in ways which s 19 is not. Section 4(1)(d) (which is the approximate equivalent of s 19(1)(c)) is limited to a failure or refusal to attend for work or to perform work if:
·the relevant persons are acting in accordance with a decision or direction of an organization of which they are a member; or
·the failure or refusal is in connection with an industrial dispute; or
·the persons are employed by the Commonwealth or a constitutional corporation; or
·the persons are employed in a Territory.
These limitations may well have reflected concerns about the constitutional basis of the legislation, which concerns may not have arisen in connection with the Fair Work Act. However their absence from s 19(1)(c) must substantially undermine the authority of the remarks made in the Age decision concerning s 4 of the Workplace Relations Act. We consider that care is also necessary in considering the relevance of the decision in BHP Coal, partly because of the error concerning the status of the note. However we also point out that the observations concerning s 417 and s 19(1)(c) were not necessary to the decision. Further, at [119] and [120] the Full Court observed:
119These comments were made in relation to the [Workplace Relations Act], but the definition of “industrial action” in the [Fair Work Act] is not relevantly different.
120Ultimately, the question posed by s 19(1) of the [Fair Work Act] is whether action can be said to be “industrial” in character. If action takes place outside the area of disputation and bargaining, that is relevant in determining whether the action is “industrial”, but it is not determinative.
As we have observed above, s 4 of the Workplace Relations Act and s 19(1)(c) of the Fair Work Act are not, in any sense, identical. It is not appropriate to treat a court’s observations concerning the construction of one statute as necessarily controlling the construction of another, even if the sections are expressed in identical words: McNamara v Consumer Trader and Tenancy Tribunal (2005) 221 CLR 646 at [40] per McHugh, Gummow and Heydon JJ; see too Marshall v Director-General Department of Transport (2001) 205 CLR 603 at [62] per Hayne J as applied by Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ in Walker Corporation Ltd v Sydney Harbour Foreshore Authority (2008) 233 CLR 259 at [31].
The decision of French J in Laing is of some importance. His Honour said, concerning s 127 of the Workplace Relations Act that the term “industrial action” was widely defined (by s 4). At p 31 his Honour said:
So communication can be industrial action. And industrial action, verbal or non‑verbal, can be communication in a wider sense. The withdrawal of labour because of an industrial dispute may be seen as a signal from employee to employer of a grievance or as underlining, from the employee's perspective, the seriousness of a grievance which has been communicated verbally. To say that industrial action sends a signal to the employer or communicates in this sense is not to take it out of the class of conduct to which s 127 applies.
Industrial action may be caught by the section notwithstanding that it is intended to send a signal or communicate some message other than about a dispute with the employer. It is not necessary for the application of s 127 that it relate to an industrial dispute if it relates to work regulated by an award or a certified agreement. Thus employees might stop work without the authority of their employer and in breach of their contract of employment in order to attend a rally at Parliament House or some other form of demonstration or public meeting to express views about some issue not arising out of their relationship to their employer. In such a case where their work is regulated by an award or a certified agreement, s 127 is capable of application.
In BHP Coal at [118]‑[119] the Full Court adopted at least part of this passage.
We have also had regard to the decision of Gordon J in Klein v Metropolitan Fire and Emergency Services Board (2012) 208 FCR 178. We do not understand that decision to be materially inconsistent with the proposition in Laing which we have cited above.
We find, in the text of s 19(1)(c), no basis for limiting its operation in the way suggested by the Age decision, or in BHP Coal. Section 19(1)(c) defines the term “industrial action”. It does so by having regard to the relationship between employer and employee, and the performance of work pursuant to that relationship. It is that relationship which attracts use of the word “industrial”. We see no justification for the view that it is necessary to add some further “industrial qualification” to the express words of s 19(1)(c). Some other provision of the Fair Work Act may necessitate the adoption of a narrower meaning for some purposes, just as any statutory definition may be affected by context. We see no basis in the Fair Work Act for adopting a narrow approach to s 19 as it applies to s 417. However we are inclined to the view that provisions in the Crown enterprise agreement may affect its application where an employee does not attend for, or perform work because of illness. We will return to that matter.
Ground 4 assumes that the primary Judge correctly found that some of the appellants attended the rally. We do not accept that his Honour made any such finding. As far as we can see, his Honour simply accepted that some of the appellants may have done so, or perhaps had not worked on the relevant day in expectation that they would attend, or that no work would be done because others were absenting themselves for that reason. The appellants submit that participation at such a rally or march would not constitute industrial action within the meaning of s 19 because it did not concern issues between an employer and employees. The Full Bench in the Age decision, French J in Laing and the Full Court in BHP Coal all seem to have rejected such an argument. The appellants accept that the submission is inconsistent with those decisions and submit that we should not follow them. We see no reason to depart from the view expressed by French J in Laing.
Given our view as to the proper construction of ss 19(1)(c) and 417(1), it is not strictly necessary that we deal with this matter. However we will deal briefly with it. We consider that the rally and march were very much about wages and conditions, and about relations between employers and employees. To start with, the conduct in question severely disrupted the employer‑employee relationship between Crown and its employees. Secondly, the flyers clearly indicated that the rally and march were sponsored by trade unions, and that it was to address quite broad political and/or social issues. In one flyer the purpose of the action was to foster “Local jobs first, more local content and train our WA Kids”. The rally was, “for our future and for our kids.” It was said that, “Its’s our mining boom. Let’s spread it around.” Further, it warned that:
‘The mining boom is creating massive wealth for the select few, but there are also many Australians missing out. Mining and construction companies prefer to import guest workers rather than employ locals. Manufacturing jobs are disappearing due to the high Australian dollar caused by the boom. Mining communities are suffering from underinvestment in transport, hospitals and schools. On Feb 28th let Barnett and others know that these are our resources, our jobs and our future’. Rally!
The march was to “Colin’s palace at parliament house”. The Hon Colin Barnett MP was the then Premier of Western Australia. The words “Let’s spread it around” suggest a wider distribution of Western Australia’s prosperity, presumably for the benefit of employees and at the expense of employers. The second flyer was to similar effect. Clearly, employees were being encouraged to participate in the rally and march, rather than perform their duties as employees.
Taken at face value, the focus was on the employment of local people and a redistribution of the wealth created by the mining boom. We do not think that his Honour’s use of the expression, “pay and conditions of work”, should be given a narrow meaning. In any event, as we have said, French J and the Full Court in BHP Coal considered that a rally at Parliament House to express views bearing upon the employment relationship was capable of being industrial action. We do not accept that the rally was for purposes unrelated to that relationship. The appellants’ conduct was plainly disadvantageous to Crown. Those organizing the rally tied the imposition of such disadvantage to the causes being advanced. Crown was a construction company, a class of employer which was expressly singled out for attention. The motto “Let’s spread it around” appears to reflect the call for higher wages and lower profits.
The appellants submit that a construction of the term “industrial action” which captures failure to attend work in order to attend a political rally or march, “would tip the balance of enterprise agreements too far in favour of employers”, and that, “employees would be prohibited, on pain of civil penalty, from engaging in political disputes, even though those disputes were entirely unrelated to the employer/employee relationship”. Such a situation, it is said, would be inconsistent with the objects of the Act as stated in s 3 of, “providing a balanced framework for cooperative and productive workplace relations”.
In our opinion, the appellants’ suggested construction is in the teeth of the general object of the Act, as expressed in s 3 of providing “a balanced framework for co-operative and productive workplace relations that promotes national economic prosperity and social inclusion for all Australians”. The text of s 19(1), read in the context of the Act as a whole, does not evince any support for the appellants’ argument. Statutory construction is a process of considering the text of the legislation as enacted by the Parliament. As Hayne, Heydon, Crennan and Kiefel JJ emphasised in Alcan (NT) Alumina Ltd v Commissioner of Territory Revenue (Northern Territory) (2009) 239 CLR 27 at [47]:
Historical considerations and extrinsic materials cannot displace the clear meaning of the text. The language which has actually been employed is the surest guide to legislative intention.
(Footnotes omitted.)
There is nothing in the text of the Act that suggests, let alone supports, a construction of “industrial action” that would let an employee be at liberty to choose not to perform his or her duties as, when and as often as he or she likes in order to attend a political rally. We see no merit in this submission.
Finally, the appellants submit that the Court should avoid a construction which would, “trench upon freedom of political communication.” This submission depends upon decisions of the High Court to the effect that the Constitution contains a qualified limitation on legislative power, ensuring that the people of the Commonwealth may, “exercise a free and informed choice as electors.” See McCloy v New South Wales (2015) 257 CLR 178 at [2]. The passage continues:
A.... It is not an absolute freedom. It may be subject to legislative restrictions serving a legitimate purpose compatible with the system of representative government for which the Constitution provides, where the extent of the burden can be justified as suitable, necessary and adequate, having regard to the purpose of those restrictions.
B.The question whether a law exceeds the implied limitation depends upon the answers to the following questions, reflecting those propounded in Lange as modified in Coleman v Power:
1Does the law effectively burden the freedom in its terms, operation or effect?
If ‘no’, then the law does not exceed the implied limitation and the enquiry as to validity ends.
2.If ‘yes’ to question 1, are the purpose of the law and the means adopted to achieve that purpose legitimate, in the sense that they are compatible with the maintenance of the constitutionally prescribed system of representative government? This question reflects what is referred to in these reasons as ‘compatibility testing’.
The answer to that question will be in the affirmative if the purpose of the law and the means adopted are identified and are compatible with the constitutionally prescribed system in the sense that they do not adversely impinge upon the functioning of the system of representative government.
If the answer to question 2 is ‘no’, then the law exceeds the implied limitation and the enquiry as to validity ends.
3.If ‘yes’ to question 2, is the law reasonably appropriate and adapted to advance that legitimate object? This question involves what is referred to in these reasons as ‘proportionality testing’ to determine whether the restriction which the provision imposes on the freedom is justified.
The proportionality test involves consideration of the extent of the burden effected by the impugned provision on the freedom. There are three stages to the test - these are the enquiries as to whether the law is justified as suitable, necessary and adequate in its balance in the following senses:
suitable — as having a rational connection to the purpose of the provision;
necessary — in the sense that there is no obvious and compelling alternative, reasonably practicable means of achieving the same purpose which has a less restrictive effect on the freedom;
adequate in its balance — a criterion requiring a value judgment, consistently with the limits of the judicial function, describing the balance between the importance of the purpose served by the restrictive measure and the extent of the restriction it imposes on the freedom.
If the measure does not meet these criteria of proportionality testing, then the answer to question 3 will be ‘no’ and the measure will exceed the implied limitation on legislative power.”
(Footnotes omitted.)
We understand the appellants’ submission to be that if a construction of ss 19 and 417, which we would otherwise favour, leads to a limitation upon the right freely to express political opinions, we should reject it. It is apparently submitted that it would place an unacceptable limit upon the right freely to express political opinions if the Fair Work Act were construed as imposing a pecuniary penalty upon an employee who does not attend for work, or perform work as he or she is obliged to do, because he or she wishes to express a political opinion at some place other than his or her place of work in contravention of a term of his or her enterprise agreement.
A law will only create such a limitation if, in its terms, operation or effect, it effectively burdens the freedom. We do not wish to be taken as accepting that ss 19(1)(c) and 417, as we construe those sections, effectively impose any such burden. They do not interfere with the capacity of a person to express views. They merely require that duties voluntarily undertaken be performed. This includes duties and promises not to take particular action, without the agreement of the employer, while an enterprise agreement is in force. However it is not necessary that we address that question as the parties have conducted the case upon the basis that the sections impose such a burden. In those circumstances, we must address questions 2 and 3. We understand it to be common ground that a law which has the purpose of regulating employer and employee rights and obligations is compatible with representative and responsible government. The appellants, in their written outline, conceded as much. However, in their oral submissions, they submitted that in McCloy, the High Court held that the purpose and the means adopted to achieve that purpose must be so compatible. In their outline, the appellants did not identify or address the distinction between the purpose and the means adopted to fulfil that purpose. In oral submissions, the appellants asserted that whilst the purpose may have been compatible with maintenance of the constitutionally prescribed system of representative government, the adopted means were not.
The appellants seem to submit that any statutory requirement that an employee be at his or her place of work, and performing work of the agreed kind during the agreed hours, as a means of regulating employer and employee rights and obligations, is in some way incompatible with the maintenance of our system of representative and responsible government. This submission seems to involve the proposition that the maximum pecuniary penalty for any breach of s 417 is too high a penalty for exercising the right freely to express political opinions in a way which infringes s 417. Alternatively, it is suggested that there should be no pecuniary penalty, leaving the employer to whatever remedies it may have under the relevant terms of employment.
These somewhat surprising propositions are said to be supported by references to very specific passages in various judgments. In our view the submission is completely misconceived. We should briefly summarize the history of the relevant limit on statutory power. In Lange v Australia Broadcasting Corporation (1997) 189 CLR 520, the Full High Court said at 561‑2:
However, the freedom of communication which the Constitution protects is not absolute. It is limited to what is necessary for the effective operation of that system of representative and responsible government provided for by the Constitution. The freedom of communication required by ss 7 and 24 and reinforced by the sections concerning responsible government and the amendment of the Constitution operates as a restriction on legislative power. However, the freedom will not invalidate a law enacted to satisfy some other legitimate end if the law satisfies two conditions. The first condition is that the object of the law is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government or the procedure for submitting a proposed amendment to the Constitution to the informed decision of the people which the Constitution prescribes. The second is that the law is reasonably appropriate and adapted to achieving that legitimate object or end. Different formulae have been used by members of this Court in other cases to express the test whether the freedom provided by the Constitution has been infringed. Some judges have expressed the test as whether the law is reasonably appropriate and adapted to the fulfilment of a legitimate purpose. Others have favoured different expressions, including proportionality. In the context of the questions raised by the case stated, there is no need to distinguish these concepts. For ease of expression, throughout these reasons we have used the formulation of reasonably appropriate and adapted.
(Footnotes omitted.)
The appellants’ concerns about the way in which the primary Judge dealt with each case seem to be based upon the erroneous assumption that Fair Work had to prove that each appellant had a particular purpose, motive or intention in not attending for, or performing work which purpose, motive or intention could be described as “industrial”. In fact, it was only necessary that Fair Work prove that each had engaged in industrial action as that term is defined in s 19(1)(c). Fair Work had to prove that on the relevant date, each appellant failed or refused to attend for work, and/or failed or refused to perform any work. Any demonstrated failure to attend, or to perform work must be seen in light of the surrounding circumstances, namely:
·that there was a site meeting prior to the commencing time for work, a confrontation between Messrs Waters and Joshua and Mr Chaseling concerning the late start to work, and advice to workers not to enter the site as payment had not been guaranteed;
·the fact that the rally and march were scheduled for that day and that the unions were encouraging attendance;
·the meeting on 27 February 2013 concerning the rally and march and the tool box meetings on that day; and
·the absence of so many employees from the site and/or their failure to perform work on that day.
Our approach to the evidence
We propose to approach the evidence in a different way from that adopted by the primary Judge. We do so partly because of the appellants’ complaint that his Honour did not consider each appellant’s case separately and partly because, with the benefit of hindsight, we consider that we can present the evidence in a more transparent way. We take para 4 of the appellants’ submissions (referred to above) as an invitation to draw such inferences as we consider appropriate, having regard to the way in which the matter was conducted at first instance and on appeal. This approach will provide a basis for considering appeal grounds 2 and 3 and, should it be necessary, will assist us in re‑considering the issues, having regard to any detected error in the primary Judge’s reasons.
The evidence
It is common ground that none of the 74 appellants was shown in the timesheets as performing any work on 28 February 2013 and, according to the payslips, none was paid for that day. Of the 74 appellants, 46 (the “group of 46”) were not recorded as entering or leaving the site on 28 February 2013 by the electronic card readers or the sign on/off sheets. None is shown in the timesheets as having worked and, according to the payslips, none was paid. This evidence would not necessarily exclude attendance at the meeting, but nothing hangs on that fact. It is reasonable to infer that none of those 46 entered or left the site on that day, or performed any work. Of this group:
·in 16 cases, the word “sick” was entered on the timesheets;
·in two cases, the word “off” was inserted in the timesheets; and
·in two cases, entries in the timesheets suggested that the relevant appellants had been unable to enter the site.
The 46 appellants in question are:
· Scott Adams (1) · Thomas Hanley · David Prendergast (1) · Grant Atwell · Raymond Henderson · Matthew Purdy · Adrian Bald · Paul Higgins (1) · Carl Quigley · Beau Bazelmans · Saxon Johnston · Lee Rayner (1) · Ilija Biletic · Daniel Juras · Andrew Roberts (2) · Richard Calleja · Troy Keep · Rory Rowland (1) · Lawrence Carty · Daniel Mallon (1) · Angela Ruggero · Alberto Cumace · Samuel McCullough (1) · Glen Stainton · Mile Dimovski · Felice Minervini (1) · Malcolm Sutton (1) · Ronan Diver · Orazio Minervini (1) · Ryan Tabbakh · Philip Doyle · Eamonn Moore (1) · Gino Tamburri · Christian Edwards · Vince Mule · James Thompson · Jonathan Edwards (1) · Daniel Murray (2) · Glenn Turner · Allan Evans (1) · Shane O’Brien (1) · Elone Tutavaha (3) · Jamie Fulton (1) · Padraig O’Dowd · Maxwell Waldron (3) · Robert Wright (1)
The number next to a name indicates that the relevant appellant was shown on the timesheets as having been:
(1)sick;
(2)off; or
(3)unable to reach/access site.
With the exception of the three classes of notation on the timesheets, we see no basis for separate treatment of any of the group of 46. We shall deal with the three classes of notation at a later stage. Obviously, none of these appellants attended for work or performed any work on 28 February 2013.
According to the electronic card reader records, of the remaining 28 appellants (the “group of 28”), 25 entered, left or entered and left the site, in some cases on multiple occasions. Of those 25, 23 also signed “on” or “off” or both on his timesheet. Three appellants, not shown by the electronic card readers as having entered, left or entered and left the site, are nonetheless shown as having signed on, signed off or signed on and off.
Jones v Dunkel
The appellants and Fair Work place great importance upon the operation of the decision in Jones v Dunkel. That case has been considered and applied in many cases. The decision, itself, must be read in the context of those cases. In Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361, Heydon, Crennan and Bell JJ said at [63]‑[64]:
63.The rule in Jones v Dunkel is that the unexplained failure by a party to call a witness may in appropriate circumstances support an inference that the uncalled evidence would not have assisted the party's case. That is particularly so where it is the party which is the uncalled witness. The failure to call a witness may also permit the court to draw, with greater confidence, any inference unfavourable to the party that failed to call the witness, if that uncalled witness appears to be in a position to cast light on whether the inference should be drawn. These principles have been extended from instances where a witness has not been called at all to instances where a witness has been called but not questioned on particular topics. Where counsel for a party has refrained from asking a witness whom that party has called particular questions on an issue, the court will be less likely to draw inferences favourable to that party from other evidence in relation to that issue. That problem did not arise here. The plaintiff's counsel did ask the plaintiff relevant questions.
64.The rule in Jones v Dunkel permits an inference, not that evidence not called by a party would have been adverse to the party, but that it would not have assisted the party. ...
(Footnotes omitted.)
In the present case, none of the appellants gave evidence or called any other witnesses. The appellants submit, without reference to any supporting authority that the rule in Jones v Dunkel ought not apply in circumstances in which penalty privilege has been claimed. There are authorities to the contrary. See Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Competition and Consumer Commission (2007) 162 FCR 466 at [76] per Weinberg, Bennett and Rares JJ, see too at [28]; Adler v Australian Securities and Investments Commission (2003) 179 FLR 1 at [659]‑[661] per Giles JA, Mason P and Beazley JA concurring. See also Australian Securities and Investments Commission v Fortescue Metals Group Ltd (No 5) (2009) 264 ALR 201 at [85]‑[100] per Gilmour J and the considered, although tentative view of the Victorian Court of Appeal in Chong v CC Containers Pty Ltd [2015] VSCA 137 at [213]‑[229]. We proceed upon the basis that the rule in Jones v Dunkel may be applied in pecuniary penalty proceedings. We have previously referred to the care which must be taken in applying the decision to a regulator which is still obliged to prove its case on the balance of probabilities in accordance with s 140 of the Evidence Act: Australian Securities and Investments Commission v Rich (2004) 220 CLR 129 at [24] per Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ.
As none of the appellants chose to give evidence, it follows that an available inference is that the evidence which any of them could have given would not have assisted that appellant’s case concerning:
·whether he failed or refused to attend for work or to perform work;
·the “industrial characterization” of such conduct;
·the significance of the word “sick” written on the timesheets;
·the significance of the word “off” written on the timesheets; and
·the significance of the words “could not reach/access site” written on the timesheets.
Below, we summarize the evidence concerning the group of 28 who were on site on 28 February 2013. The summary is based upon an aide memoire provided by the appellants. We also draw some inferences from the summarized facts and from the other facts of the case.
Appellant Site electronic card readers Timesheet entry for 28 February 2013 including amount paid Hours paid Sign on/Sign Off Anthony Agnello
Time in 6.36 am
Time out 6.41 am
Time in 7.22 am
Time out 7.29 amNo entry
24 normal hours
Sign on 6.30 am
No sign offWe infer that Mr Agnello left the site at 7.29 am on 28 February 2013 and did not return on that day. We further infer that he did no work on that day. Probably, the sign on entry was made after 6.36 am and before 7.29 am.
Christopher
William BainesTime in 5.55 am
Time out 7.26 amNo entry
16 normal hours
Sign on 6.30 am
Sign off 11.00 amWe infer that Mr Baines left the site at 7.26 am on 28 February 2015 and did not return on that day. It is unlikely that Mr Baines re‑entered the site after 7.26 am, without his entry being recorded by the electronic card readers. The sign on/off times were probably entered before 7.26 am. There would have been no reason for him to remain on site. We infer that he did no work on that day.
Cosimo Canfora
Time in 4.58 am
Time out 6.12 am
Time in 7.21 am
No final time outNo entry
16 normal hours
Sign on 6.30 am
No sign offWe infer that Mr Canfora left the site at some time after 7.21 am and did not return on that day. We further infer that he performed no work on that day.
Michael Catalano
Time in 5.56 am
Time out 6.08 am
Time in 6.37 am
Time out 8.13 am
Time in 8.14 am
Time out 8.16 amNo entry
24 normal hours
Sign on 6.00 am
Sign off 5.00 pmWe infer that Mr Catalano left the site at 8.16 am and did not return on that day. It seems unlikely that he returned to the site after 8.16 am or remained there until 5.00 pm, given that, as we find, he performed no work. We infer that his sign on/off times were entered prior to departure at 8.16 am.
Giulio Cicchini
Time in 5.56 am
Time out 6.12 am
Time in 7.21 am
No final time outNo entry
24 normal hours
Sign on 6.30 am
No sign offWe infer that Mr Cicchini left the site at some time after 7.21 am and did not return on that day. The sign on time was probably entered between 5.56 am and 6.12 am or after 7.21 am. We infer that he did no work on that day.
Thomas Connolly
Time in 6.09 am
Time out 6.17 amNo entry
16 normal hours
Sign on 6.30 am
No sign offWe infer that Mr Connolly left the site at 6.17 am and did not return on that day. He probably signed on between 6.09 am and 6.17 am. We infer that he performed no work on that day.
Francesco Salvatore Costanzo
No entry recorded
No entry
16 normal hours
Sign on 6.30 am
No sign offIt is possible that Mr Costanzo entered and left the site without such entry and exit being recorded by the electronic card readers. We infer that he performed no work on that day.
Kevin James Devereux
Time in 6.09 am
Time out 6.19 am
Time in 7.22 am
No final time outNo entry
24 normal hours
Sign on 6.30 am
No sign offWe infer that Mr Devereaux departed the site at some time after 7.22 am and did not return on that day. We infer that he signed on between 6.09 am and 6.19 am or after 7.22 am. We infer that he performed no work on that day.
Frank DiFalco
No entry recorded
Off
16 normal hours
Sign on 6.30am
No sign offIt is possible that Mr DiFalco entered and left the site without such entry and exit being recorded by the electronic card readers. We infer that he performed no work on that day. We have dealt with the timesheet entry.
James Doolan
Time in 5.59 am
Time out 6.15 am
Time in 7.21 am
Time out 7.36 amNo entry
16 normal hours
No entry
We infer that Mr Doolan left the site at 7.36 am and did not return on that day. We infer that he performed no work on that day.
Leslie Dwight
Time in 5.51 am
Time out 6.10 am
Time in 7.21 am
Time out 7.26 amNo entry
16 normal hours
Sign on 6.30 am
Sign off 11.00 amWe infer that Mr Dwight left the site at 7.26 am and did not return on that day. It is probable that he signed on and off prior to departing at 7.26 am. We infer that he performed no work on that day.
Bryan Elliott
No entry recorded
Off
16 normal hours
Sign on 6.30 am
Sign off 11.00 amIt is possible that Mr Elliott entered and left the site without such entry and exit being recorded by the electronic card readers. We infer that he performed no work on that day. We have dealt with the timesheet entry.
Ray Kenealy Goodhew
Time in 5.45 am
Time out 6.12 amNo entry
16 normal hours
Sign on 6.30 am
No sign offWe infer that Mr Goodhew left the site at 6.12 am and did not return on that day. We infer that he performed no work on that day.
Neil Halliday
Time in 5.17 am
Time out 6.08 am
Time in 7.39 am
Time out 7.39 amNo entry
24 normal hours
Sign on 6.30 am
Sign off 11.00 amWe infer that Mr Halliday left the site at 7.39 am and did not return on that day. We infer that the sign on/off times were entered between 5.17 am and 6.08 am. We infer that he performed no work on that day.
Kane Hulme
Time in 6.21 am
Time out 7.47 amNo entry
24 normal hours
No entry
We infer that Mr Hulme left the site at 7.47 am and did not return on that day. We infer that he performed no work on that day.
Michael Iuliano
Time in 6.13 am
No final time outOff
16 normal hours
Sign on 6.30 am
No sign offWe infer that Mr Iuliano left the site at some time after 6.13 am and that he signed on before leaving. He did not return on that day. We infer that he performed no work on that day. We have dealt with the timesheet entry.
Nikola Jasa
Time in 5.54 am Time out 6.08 am Time in 7.21 am
No final time outNo entry
8 normal hours NCH,
8 normal hours Ord StSign on 6.30 am Sign off 11.00 am
We infer that Mr Jasa left the site at some time after 7.21 am and did not return on that day. His sign on/off times were probably entered whilst he was on site. We infer that he performed no work on that day.
Baharudin Johari
Time in 5.55 am Time out 6.10 am Time in 7.22 am Time out 7.28 am
No entry
16 normal hours
Sign on 6.30 am Sign off 11.00 am
We infer that Mr Johari left the site at 7.28 am and did not return on that day. His sign on/off times were probably entered whilst he was on site. We infer that he performed no work on that day.
Niall Kenny
Time in 5.59 am Time out 5.16 am Time in 7.35 am
No final time outNo entry
16 normal hours
Sign on 6.30 am Sign off 3.00 pm
We infer that Mr Kenny left the site some time after 7.35 am and did not return on that day. The sign on/off times were probably entered whilst he was on site. We infer that he performed no work on that day.
Paul Michael King
Time in 6.09 am Time out 6.21 am
No entry
24 normal hours
Sign on 6.30 am Sign off 11.00 am
We infer that Mr King left the site at 6.21 am and did not return on that day. The sign on/off times were probably inserted whilst he was on site. We infer that he performed no work on that day.
Ralph Martinez
Time in 6.01 am Time out 6.10 am Time in 7.28 am Time out 7.28 am Time in 7.28 am Time out 7.28 am
Sick
16 normal hours
Sign on 6.30 am Sign off 11.00 am
We infer that Mr Martinez left the site at 7.28 am and did not return on that day. The sign on/off times were probably entered whilst he was on site. He did no work on that day. Below, we deal with the timesheet entry.
Ian Robert McMinn
Time in 5.17 am Time out 6.08 am Time in 7.21 am Time out 7.39 am
No entry
24 normal hours
Sign on 6.30 am Sign off 11 am
We infer that Mr McMinn left the site at 7.39 am and did not return on that day. The sign on/off times were probably entered whilst he was on site. He did no work on that day.
John Osorio
Time in 5.54 am Time out 6.16 am Time in 7.21 am
No final time outNo entry
16 normal hours
Sign on 6.30 am Sign off 11.00 am
We infer that Mr Osorio left the site at some time after 7.21 am and did not return on that day. The sign on/off times were probably entered while he was on site. We infer that he performed no work on that day.
Michael Powderly
Time in 5.16 am Time out 6.08 am
No entry
24 normal hours
Sign on 6.30 am Sign off 11.00 am
We infer that Mr Powderly left the site at 6.08 am and did not return on that day. The sign on/off times were probably inserted whilst he was on site. We infer that he performed no work on that day.
Alan Semple
Time in 6.04 am Time out 6.19 am
No entry
8 normal hours NCH, 8 normal hours Ord St
Sign on 6.30 am
No sign offWe infer that Mr Semple left the site at 6.19 am and did not return on that day. His sign on time was probably entered whilst he was on site. We infer that he performed no work on that day.
Vlado Strafela
Time in 5.54 am Time out 6.15 am
No entry
16 normal hours
Sign on 6.30 am Sign off 11.00 am
We infer that Mr Strafela left the site at 6.15 am and did not return on that day. The sign on/off times were probably entered whilst he was on site. We infer that he did no work on that day.
Warne Francis Taylor
Time in 5.58 am Time out 6.15 am Time in 7.22 am Time out 7.29 am
No entry
16 normal hours
Sign on 6.30 am Sign off 11.00 am
We infer that Mr Taylor left the site at 7.29 am and did not return on that day. The sign on/off times were probably entered whilst he was on site. We infer that he did no work on that day.
Mark Wade
Time in 6.09 am Time out 7.16 am
No entry
16 normal hours
Sign on 6.30 am
We infer that Mr Wade left the site at 7.16 am and did not return on that day. The sign on time was probably entered whilst he was on site. We infer that he did no work on that day.
Engaging in industrial action
We infer that all of the group of 28 either did not enter the site or withdrew, following Mr Waters’ exchange with Mr Chaseling and the former’s encouragement or direction that they not go to work. Obviously, not all of the employees in the vicinity would have heard the exchange. However it is probable that all of them became aware of it in one way or another and left the site, either because of Mr Waters’ encouragement or direction or because other employees were not entering the site or were leaving without performing work. We infer that, subject only to the three categories of notation on the timesheets, all of the group of 28, failed or refused to attend for, or to perform work on 28 February 2013, and thereby engaged in industrial action by Crown employees. This aspect of the case is a little more complicated because of the proposed rally and march. It may be possible only to say that the appellants in the group of 28 engaged in industrial action without identifying whether such engagement was in connection with the exchange or the rally and march. We will return to this matter.
The group of 46, who were not at the meeting or otherwise on site on 28 February 2013, cannot be taken to have had knowledge of the exchange between Mr Waters and Mr Chaseling, or of any action by workers following such exchange. In order to infer that they engaged in industrial action, it is necessary to demonstrate that they did not attend, knowing that others would fail or refuse to attend for, and/or perform work for reasons associated with the proposed rally and march. It would not matter that they stayed away for purposes unrelated to the rally and march. Illness on the day may be an exception to that conclusion, simply because the enterprise agreement made provision for non‑attendance by reason of sickness. We will return to that question and to the other notations on the timesheets.
As concerns the rally and march, the case against all of the appellants is that they knew that there was to be a rally and march on 28 February 2013. Such knowledge was derived from the flyers, the meeting early on 27 February 2013, the tool box meetings on that day and, inferentially, discussions on site concerning those matters. Of the group of 46, all but two were at work on 27 February 2013.
The appellants’ case was conducted on the basis that Crown knew about the flyers and their content. See the appellants’ outline of submissions at para 45. We infer that all appellants also had such knowledge. At Mr Chaseling’s tool box meetings on 27 February 2013, he said that on that morning, there had been a meeting of employees at which the proposed rally was discussed. Mr Chaseling made it clear that absence from work would be unlawful industrial action, although he may have been relying to some extent, on an order by the Fair Work Commission rather than s 417. That distinction is of no present significance. The point is that on 27 February 2013, there had been discussions about the proposed rally, and the matter had been raised at various tool box meetings, including two such meetings for Crown employees. A relatively large number of Crown employees attended. We infer that any Crown employee on site on that day would have been aware of the proposed rally and march and the associated likely absence from work, irrespective of any knowledge of the flyers or their content. Hence we infer that those appellants who were at work on 27 February 2013 probably knew of the proposed rally and march on 28 February 2013, and that some Crown employees would probably fail or refuse to attend for work, or to work on the latter date.
The timesheets demonstrate that two of the group of 46 were absent from work on 27 February 2013: Mr Calleja who was sick, and Mr Tabbakh who was on a rostered day off work. We cannot infer that they were aware of events which occurred on site on that day. However there is an available inference that they knew of the proposed rally and march because they read either or both of the flyers or participated in, or heard discussions on site concerning the content of the flyers. There is no evidence as to when the flyers were distributed, but it is probable that they were distributed at least some time in advance of the proposed rally and march. We infer that both Mr Calleja and Mr Tabbakh had such knowledge. In so inferring, we have noted that neither appellant chose to give evidence. In those circumstances we infer that neither was able to give any evidence helpful to his case, concerning his state of knowledge. We infer that, subject only to the three categories of notation on the timesheets, all appellants comprising the group of 46 knew of the proposed rally and march, and that some Crown employees might attend, leading to them failing or refusing to attend for work, or to perform work. We infer that by absenting themselves from the site on 28 February 2013, those appellants engaged in such industrial action by Crown employees.
The same inferences are available in respect of each of the appellants in the group of 28, save that they had engaged in other industrial action connected with the exchange between Mr Waters and Mr Chaseling. It is not possible to distinguish between their conduct as it related to the earlier exchange and as it related to the proposed rally and march. It is sufficient to say that their failure or refusal to attend for, or perform work was brought about by either the exchange or the proposed rally and march, or both.
We should add that we do not understand the appellants to have suggested at trial or on appeal, that any of them was unaware of the proposed industrial action on 28 February 2013. Nor do we understand it to have been suggested that those on site, or waiting to enter the site on 28 February 2013, were unaware of the exchange between Mr Waters and Mr Chaseling.
A further submission
In submissions in reply, the appellants submitted that the need to demonstrate engagement in industrial action by employees raised a further matter which had not been addressed at trial. The submission was based upon the proposition that when some employees left the site on 28 February 2013, others who remained may have been willing to work but were unable to do so because no work was available. It was submitted that when workers left the site, Crown may have decided that no work would, or could be performed on that day. Thus it was submitted that it could not be established, as against those employees who had been at the meeting and/or on site on the morning of 28 February 2013, that they had failed or refused to perform work. The appellants submitted that this basis for appeal was within ground 3 (or perhaps grounds 2 and 3) of the further amended notice of appeal. We do not accept that submission. Grounds 2 and 3 should only be understood as dealing with issues raised at trial. Even if we were to permit the issue to be raised on appeal, the ground could not succeed. The appellants do not challenge the proposition that prior to 6.30 am, there was work to be performed immediately after the starting time of 6.30 am. There is no basis for inferring that anything occurring thereafter led to a change in that position. The submission must be rejected.
The timesheet notations
Of the 74 appellants, the timesheets relating to 16 of them were marked “sick”. Of those 16, 15 were in the group of 46, and one, Mr Martinez, was not. There was no further elaboration on the timesheets, and no evidence as to the persons responsible for the entries. It may reasonably be inferred that each appellant in question made the entry relevant to himself. The Crown records were received in evidence as business records pursuant to Div 3 of Pt 3.2 of the Evidence Act. Broadly speaking, where business records are received into evidence, the hearsay rule does not apply to them. For present purposes, we must consider whether the presence of the word “sick” on the timesheets has any present relevance and, if so, how it affects this case.
The appellants submit that such an entry meant that Fair Work had to establish, on the balance of probabilities, that the relevant appellant was not sick on 28 February 2013. In other words, they submit that the word “sick” on a timesheet relating to an appellant satisfied the evidential onus necessary to raise the issue of his sickness, and so impose a legal onus on Fair Work to prove that he was not sick. It is also said that the presence of the word “sick” on a timesheet is an “additional barrier” to characterizing the relevant appellant’s conduct as being industrial.
We do not accept the appellants’ view of s 19(1)(c) as applied to s 417. However we agree that a bona fide claim to be absent for reason of sickness would, in this case, take the absence from work, or failure to work out of the definition of the term “industrial action”. Clause 34 of the Crown enterprise agreement deals with “personal leave”. Clause 34.1(a) provides:
(a) Cumulative Personal Leave
10 days paid leave per year (cumulative) for use by an Employee (other than a casual) as:
(i) Sick Leave; or
(ii) Carers Leave;
Clause 34.2 provides:
34.2 Sick Leave
(a)An Employee (other than a casual) shall be entitled to use Cumulative Personal Leave as sick leave for absences on account of personal illness or injury (except where the Employee is receiving workers compensation).
(b)An Employee shall as far as practicable inform the Employer of the Employee's inability to attend for duty, and, as far as practicable, state the nature of the injury or illness and the estimated duration of the Employee's absence.
(c)If required by the Employer, evidence of entitlement will be supplied by the Employee to the Employer. The evidence required will be evidence that would satisfy a reasonable person that the leave is taken on account of personal illness or injury.
In certain circumstances, an employee may take cash in lieu of accumulated personal leave.
We consider that where clause 34.2 is bona fide engaged, an absent worker could not be said to be engaging in industrial action by failing or refusing to attend for, or to perform work. Such an absence is contemplated by the Crown enterprise agreement. However that exemption depends upon compliance with cl 34.2(b). No appellant has asserted such compliance. Merely entering the word “sick” on a timesheet would not be a basis for inferring that each appellant had complied with s 34.2(b). To adopt and adapt the words of Dawson and Deane JJ in Falconer, a mere assertion of illness is unlikely to be sufficient. When the person claiming to be ill has offered no particulars of such illness, and does not give evidence, it can be assumed that his evidence would not have assisted in his case. One may well ask how, in those circumstances, Fair Work could be expected to disprove illness, particularly as it was not pleaded. It follows that no appellant has demonstrated a basis for inferring that he was, for the purposes of s 19(1)(c) ill on 28 February 2013. Hence Fair Work bore no legal burden to disprove illness. It is also true that none of the appellants provided evidence of the kind contemplated by clause 34.2(c). However there is no evidence that Crown required such evidence.
The timesheets of two other appellants, Mr Tutavaha and Mr Waldron, indicate that they had been unable to enter the site on 28 February 2013. It is difficult to see how or why they should have been unable to access the site, given that many other employees did so. In any event, both were at work on 27 February 2013, and it may be inferred that they were aware of the rally, and that some Crown employees would fail or refuse to attend for work, or perform work on 28 February 2013.
The timesheets showed that some appellants were simply “off” on 28 February 2013. We cannot see how that assertion can have any effect upon the availability of the inference that the employees in question engaged in industrial action by failing or refusing to attend for work, or to work on that day.
The appellants must fail on grounds 2 and 3.
GROUND 4
We have dealt with ground 4 in our consideration of the proper construction of ss 19(1)(c) and 417(1). The appellants must fail on ground 4.
CONCLUSION
It follows that his Honour was correct in concluding that each appellant had either failed or refused to attend for work, or having so attended, failed or refused to perform work.
We order that:
·to the extent necessary there be leave to appeal against the judgment of Barker J dated 12 August 2015;
·the appeal be dismissed;
·the matter be remitted to the primary Judge for hearing and determination of all outstanding questions;
·any party seeking an order for the costs of this appeal file submissions within 14 days of the publication of these reasons;
·any submissions in reply be served within a further period of 7 days; and
·there be liberty to apply.
I certify that the preceding one hundred and sixty-nine (169) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices North, Dowsett and Rares. Associate:
Dated: 22 December 2017
SCHEDULE OF PARTIES
WAD 488 of 2015 Appellants
Second Appellant:
ANTHONY AGNELLO
Third Appellant:
GRANT ATWELL
Fourth Appellant:
CHRISTOPHER BAINES
Fifth Appellant:
ADRIAN BALD
Sixth Appellant:
BEAU BAZELMANS
Seventh Appellant:
ILIJA BILETIC
Eighth Appellant:
RICHARD CALLEJA
Ninth Appellant:
LAWRENCE CARTY
Tenth Appellant:
MICHAEL CATALANO
Eleventh Appellant:
GIULIO CICCHINI
Twelfth Appellant:
COSIMO CANFORA
Thirteenth Appellant:
THOMAS CONNOLLY
Fourteenth Appellant:
FRANCESCO CONSTANZO
Fifteenth Appellant:
ALBERTO CUMACE
Sixteenth Appellant:
KEVIN DEVEREUX
Seventeenth Appellant:
FRANK DIFALCO
Eighteenth Appellant:
MILE DIMOVSKI
Nineteenth Appellant:
RONAN DIVER
Twentieth Appellant:
JAMES DOOLAN
Twenty-First Appellant:
PHILIP DOYLE
Twenty-Second Appellant:
LESLIE DWIGHT
Twenty-Third Appellant:
JONATHAN EDWARDS
Twenty-Fourth Appellant:
CHRISTIAN EDWARDS
Twenty-Fifth Appellant:
BRYAN ELLIOTT
Twenty-Sixth Appellant:
ALLAN EVANS
Twenty-Seventh Appellant:
JAMIE FULTON
Twenty-Eighth Appellant:
RAY GOODHEW
Twenty-Ninth Appellant:
NEIL HALLIDAY
Thirtieth Appellant:
THOMAS HANLEY
Thirty-First Appellant:
RAYMOND HENDERSON
Thirty-Second Appellant:
PAUL HIGGINS
Thirty-Third Appellant:
KANE HULME
Thirty-Fourth Appellant:
MICHAEL IULIANO
Thirty-Fifth Appellant:
NIKOLA JASA
Thirty-Sixth Appellant:
BAHARUDIN JOHARI
Thirty-Seventh Appellant:
SAXTON JOHNSTON
Thirty-Eighth Appellant:
DANIEL JURAS
Thirty-Ninth Appellant:
TROY KEEP
Fortieth Appellant:
NIALL HENRY
Forty-First Appellant:
PAUL KING
Forty-Second Appellant:
DANIEL MALLON
Forty-Third Appellant:
RALPH MARTINEZ
Forty-Fourth Appellant:
SAMUEL MCCULLOUGH
Forty-Fifth Appellant:
IAN MCMINN
Forty-Sixth Appellant:
FELICE MINERVINI
Forty-Seventh Appellant:
ORAZIO MINERVINI
Forty-Eighth Appellant:
EAMONN MOORE
Forty-Ninth Appellant:
VINCE MULE
Fiftieth Appellant:
DANIEL MURRAY
Fifty-First Appellant:
SHANE O’BRIEN
Fifty-Second Appellant:
PADRAIG O’DOWD
Fifty-Third Appellant:
JOHN OSORIO
Fifty-Fourth Appellant:
MICHAEL POWDERLY
Fifty-Fifth Appellant:
DAVID PRENDERGAST
Fifty-Sixth Appellant:
MATTHEW PURDY
Fifty-Seventh Appellant:
CARL QUIGLEY
Fifty-Eighth Appellant:
LEE RAYNER
Fifty-Ninth Appellant:
ANDREW ROBERTS
Sixtieth Appellant:
RORY ROWLAND
Sixty-First Appellant:
ANGELO RUGGERO
Sixty-Second Appellant:
ALAN SEMPLE
Sixty-Third Appellant:
GLEN STAINTON
Sixty-Fourth Appellant:
VLADO STRAFELA
Sixty-Fifth Appellant:
MALCOLM SUTTON
Sixty-Sixth Appellant:
RYAN TABBAKH
Sixty-Seventh Appellant:
GINO TAMBURRI
Sixty-Eighth Appellant:
WARNE TAYLOR
Sixty-Ninth Appellant:
JAMES THOMPSON
Seventieth Appellant:
GLENN TURNER
Seventy‑First Appellant:
ELONE TUTAVAHA
Seventy‑Second Appellant:
MARK WADE
Seventy‑Third Appellant:
MAXWELL WALDRON
Seventy‑Fourth Appellant:
ROBERT WRIGHT
- AGLC
- Adams v Director of the Fair Work Building Industry Inspectorate [2017] FCAFC 228
- Case
- [2017] FCAFC 228
- Decision Date
CaseChat Overview and Summary
The court found that the documentary evidence, which included electronic card reader records, timesheets, payslips, and sign on/off sheets, was sufficient to establish that the appellants had failed to attend or perform work on the specified date. The electronic card reader records showed that certain employees did not enter or exit the site, while others left the site without recording their departure. Additionally, the timesheets and payslips indicated that no work was performed by the appellants on the specified date. The appellants did not provide any evidence to counter these findings, and their arguments were ultimately unsuccessful. The appeal was dismissed, and the matter was remitted to the primary Judge for further hearing and determination of any outstanding questions.
Orders
Orders of the court
1. to the extent necessary there be leave to appeal against the judgment of Barker J dated 12 August 2015;
2. the appeal be dismissed;
3. the matter be remitted to the primary Judge for hearing and determination of all outstanding questions;
4. any party seeking an order for the costs of this appeal file submissions within 14 days of the publication of these reasons;
5. any submissions in reply be served within a further period of 7 days; and
6. there be liberty to apply.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.