Armet v CFC Consolidated Pty Ltd (No 5)
[2025] FedCFamC2G 936
•17 June 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Armet v CFC Consolidated Pty Ltd (No 5) [2025] FedCFamC2G 936
File number(s): PEG 52 of 2021 Judgment of: JUDGE LUCEV Date of judgment: 17 June 2025 Catchwords: INDUSTRIAL LAW – alleged breach of general protections – workplace right – adverse action – onus – whether workplace right to a safe workplace or a safe system of work – whether workplace right to workers compensation – whether a workplace right to the provision of medical assistance – whether workplace right to payments for medical treatment before acceptance of liability by workers compensation insurer – whether workplace right to be provided with light duties - whether coercion – whether discouragement constitutes coercion – whether undue influence or pressure – whether false or misleading misrepresentation made knowingly or recklessly – whether discrimination on basis of race, disability or national extraction – whether coercion concerning allocation of particular duties to employee – whether consultation concerning change to regular roster or a change to ordinary working hours.
PRACTICE AND PROCEDURE – Application to reopen proceedings and file further materials – consideration of relevant factors – allegations of collusion and corruption – alleged conflicts of interest of respondent’s barrister, barrister’s parents and judicial officers – allegations of serious misconduct against respondent’s barrister – allegations irrelevant and scandalous – some material previously struck out – length of hearing – finality of litigation
Legislation: Building and Construction Industry Improvement Act 2005 (Cth)
Fair Work Act 2009 (Cth) Pt 3-1, ss 12, 107, 145A, 340, 341, 342, 343, 344, 345, 351, 355, 360, 361, 368, 370
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 190
Occupational Safety and Health Act 1984 (WA) ss 19, 20
Occupational Health and Safety Act 1985 (Vic) s 21
Workers’ Compensation and Injury Management Act 1981 (WA) ss 57, 58
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) r 17.05(1)
Workers’ Compensation and Injury Management Regulations 1982 (WA)
Workers’ Compensation Code of Practice (Injury Management) 2005 (WA)
Fair Work Bill 2008 (Cth), Explanatory Memorandum
Cases cited: AB Oxford Cold Storage Co Pty Ltd v Arnott [2003] VSC 452; (2003) 8 VR 288; (2003) 130 IR 179
Alam v National Australia Bank Limited [2021] FCAFC 178; (2021) 288 FCR 301; (2021) 310 IR 71; (2021) 393 ALR 629
Ample Source International Limited (BVICN 1575638)v Bonython Metals Group Pty Limited ACN 141 257 294 & Ors(No. 6) [2011] FCA 1484; (2011) 285 ALR 488
Armet v CFC Consolidated Pty Ltd [2022] FedCFamC2G 467
Armet v CFC Consolidated Pty Ltd (No 2) [2022] FedCFamC2G 648
Armet v CFC Consolidated Pty Ltd (No 3) [2022] FedCFamC2G 950
Armet v CFC Consolidated Pty Ltd (No 4) [2023] FedCFamC2G 325
Attorney-General for New South Wales v Perpetual Trustee Company (Limited) (1955) 92 CLR 113; [1955] ALR 469; (1955) 29 ALJ 74
Attorney-General for New South Wales v The Perpetual Trustee Company (Limited) [1952] HCA 2; (1951) 85 CLR 237; (1952) 52 SR (NSW) 3; (1952) 69 WN (NSW) 49; [1952] ALR 125; (1952) 25 ALJ 762
Australian Federation of Air Pilots v Jetstar Airways Pty Ltd [2014] FCA 15
Australian Rail, Tram and Bus Industry Union v Australian Western Railroad Pty Ltd [2017] FCCA 1954
Australian Securities and Investments Commission v Rich [2006] NSWSC 826; (2006) 235 ALR 587; (2006) 58 ACSR 414
Autodesk Inc v Dyason (No. 2) [1993] HCA 6; (1993) 176 CLR 300; (1993) 67 ALJR 270; (1993) 111 ALR 385; (1993) 25 IPR 33
Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Visy Packaging Pty Ltd [2011] FCA 1001; (2011) 213 1R 32
BHP Coal Pty Ltd v Construction, Forestry, Mining and Energy Union [2013] FCA 1291; (2013) 239 IR 363
Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32; (2012) 248 CLR 500; (2012) 86 ALJR 1044; (2012) 220 IR 445; (2012) 290 ALR 647
Cavill Business Solutions Pty Ltd v Jackson [2005] WASC 138
Childs v Metropolitan Transport Trust [1981] FCA 200; (1981) 29 AILR 24
Community and Public Sector Union v Commonwealth [2006] FCAFC 176; (2006) 157 IR 470; (2006) 59 AILR 100-598
Community and Public Sector Union v Telstra Corporation Ltd [2000] FCA 844; (2000) 99 IR 238; (2000) 48 AILR 4-325
Construction, Forestry, Mining and Energy Union v Anglo Coal (Dawson Services) Pty Ltd [2015] FCAFC 157; (2015) 238 FCR 273; (2015) 67 AILR 102-492
Construction, Forestry, Mining and Energy Union v De Martin & Gasparini Pty Ltd (No 2) [2017] FCA 1046
Construction, Forestry, Mining and Energy Union v Hadgkiss [2007] FCAFC 197; (2007) 169 FCR 151; (2007) 173 IR 360; (2007) 248 ALR 169
Dahler v Australian Capital Territory (No 2) [2015] FCCA 845; (2015) 296 FLR 363
Evans v Trilab Pty Ltd [2014] FCCA 2464; (2014) 66 AILR 102-287
Fair Work Ombudsman v National Union of Workers [2019] FCA 1826
Finance Sector Union v Commonwealth Bank of Australia [2000] FCA 1372; (2000) 106 IR 139; (2000) 48 AILR 4-336
Homes v Australian Carers Pty Ltd(No 2) [2023] FedCFamC2G 714; (2023) 379 FLR 217
Jeffrey v Donald (1901) 9 SLT 199
John Holland Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2009] FCA 235; (2009) 174 FCR 526; (2009) 180 IR 314
Klein v Metropolitan Fire and Emergency Services Board [2012] FCA 1402; (2012) 208 FCR 178; (2012) 228 IR 399
Liquor Hospitality & Miscellaneous Union v Arnotts Biscuits Ltd [2010] FCA 770; (2010) 188 FCR 221; (2010) 198 IR 143; (2010) 62 AILR 101-201
M’Keating v Frame (1921) SC 382; (1921) SLT 217; (1921) Sc LR 238
MacPherson v Kerr; Ex Parte Lewis [1893] VicLawRp 9; (1893) 19 VLR 23
McNamara v Era Pacific Pty Ltd [2021] FCCA 1689; (2021) 308 IR 214
Mullan v Calold (WA) Pty Ltd trading as Harcourts Kalamunda [2023] FedCFamC2G 404
National Tertiary Education Industry Union v Commonwealth of Australia [2002] FCA 441; (2002) 117 FCR 114; (2002) 114 IR 20
National Union of Workers v Qenos Pty Ltd [2001] FCA 178; (2001) 108 FCR 90; (2001) 183 ALR 475; (2001) 106 IR 373
O’Connor v Commissioner for Government Transport (1954) 100 CLR 225
Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia [1998] HCA 30; (1998) 195 CLR 1; (1998) 72 ALJR 873; (1998) 79 IR 339; (1998) 153 ALR 643
PIA Mortgage Services Pty Ltd v King [2020] FCAFC 15; (2020) 274 FCR 225; (2020) 292 IR 317
Re Consultation clause in modern awards [2013] FWCFB 10165; (2013) 238 IR 282
Russell v Institution of Engineers Australia T/A Engineers Australia [2013] FCA 1250
Scarman v Castell (1795) 1 Esp 270; (1795) 170 ER 353
Sellen v Norman (1829) 4 C & P 80; (1829) 172 ER 616
Seven Network (Operations) Limited v Communications, Electrical, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2001] FCA 456; (2001) 109 FCR 378; (2001) 106 IR 404; (2001) 184 ALR 65
Squires v Flight Stewards Association of Australia [1982] FCA 3 165; (1982) 2 IR 155
State of Victoria (Office of Public Prosecutions) v Grant [2014] FCAFC 184; (2014) 246 IR 441; (2014) 67 AILR 102-322
Stuart v Construction, Forestry, Mining and Energy Union [2009] FCA 1119; (2009) 190 IR 82
Stuart v Construction, Forestry, Mining and Energy Union [2010] FCAFC 65; (2010) 185 FCR 308
TransportWorkers Union of Australia v Premier Motor Services Pty Ltd [2015] FCA 650
Wennall v Adney (1802) 3 Bos & P 247; (1802) 127 ER 137
Western Union Business Solutions (Australia) Pty Ltd v Robinson [2019] FCAFC 181; (2019) 272 FCR 547; (2019) 290 IR 414
Whelan v Cigarette & Gift Warehouse Pty Ltd [2017] FCA 1534; (2017) 275 IR 285
Wilsons and Clyde Coal Co Ltd v English [1938] AC 57
Zaghloul v Woodside Energy Ltd (No 2) [2013] FCA 947
Division: Division 2 General Federal Law Number of paragraphs: 235 Date of last submission/s: 4 August 2023 Date of hearing: 17, 20 and 21 February, 1, 2 and 3 May and 7 July 2023 Place: Perth Applicant: In person Counsel for the Respondent: Mr RJS French Solicitor for the Respondent: Barry Nilsson Lawyers ORDERS
PEG 52 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: STEPHANE ARMET
Applicant
AND: CFC CONSOLIDATED PTY LTD
Respondent
ORDER MADE BY:
JUDGE LUCEV
DATE OF ORDER:
17 JUNE 2025
THE COURT ORDERS AND DECLARES THAT:
1.Orders that the Applicant’s oral application to file an application in a proceeding to re-open the proceedings and file further materials be dismissed.
2.As to liability, declares that the Respondent contravened s 340(1)(a)(i) and (ii) of the Fair Work Act 2009 (Cth) by failing to provide light duties to the Applicant in the period from 24 March 2015 to 15 September 2015 thereby not affording the Applicant a safe system of work and exposing him to hazards, but otherwise orders that the originating application filed 17 March 2021 be dismissed, save as to penalty and compensation arising from the declared contravention.
3.As to penalty and compensation orders that:
(a)the Applicant is to file and serve any further affidavits (including expert reports) and an outline of submissions by 17 July 2025;
(b)the Respondent is to file and serve any further affidavits (including expert reports) and an outline of submissions by 31 July 2025; and
(c)there be a hearing at 10:00 am on 7 August 2025.
4.Orders that costs, if any, be reserved, pending determination of penalty and compensation.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE LUCEV
INTRODUCTION
Before the Court is a claim brought by Mr Stephane Armet (“Mr Armet”) against the respondent, CFC Consolidated Pty Ltd (“CFC”), under the Fair Work Act 2009 (Cth) (“FW Act”) for breach of general protections provisions under Pt 3-1 of the FW Act. References to statutory provisions in these Reasons for Judgment are references to the FW Act unless otherwise indicated.
The Originating Application and a “Form 4 Claim under the Fair Work Act 2009 alleging contravention of a general protection” was filed on 17 March 2021. Subsequently, on 15 April 2021, the Court (differently constituted) ordered that Mr Armet have leave to file a Statement of Claim (“SOC”), and Mr Armet filed a SOC the same day. The matter proceeded on the basis of the claims made in the SOC of contraventions of various general protections provisions in Pt 3-1 and, following unsuccessful mediation before a Registrar of the Court, CFC filed a Response on 10 May 2022 and a Defence on 17 June 2022. The claims of contraventions of the FW Act made in the SOC are denied by CFC. It was only the claims of contraventions of the FW Act made in the SOC that were before the Court at final hearing: Transcript (“Tr”), 17 February 2023, p 5.
Various interlocutory matters were heard and determined prior to final hearing. In summary, they were as follows:
(a)in Armet v CFC Consolidated Pty Ltd [2022] FedCFamC2G 467 an application in a proceeding to bring forward the hearing date (initially set for two days in orders made at a directions hearing on 20 May 2022) was dismissed, and an oral application for provision of hard copies of transcript of the proceedings free of charge was reserved for further consideration;
(b)in Armet v CFC Consolidated Pty Ltd (No 2) [2022] FedCFamC2G 648 (“Armet (No 2)”) the oral application for provision of hard copies of transcript of the proceedings was dismissed; and
(c)in Armet v CFC Consolidated Pty Ltd (No 3) [2022] FedCFamC2G 950 (“Armet (No 3)”):
(i)CFC was granted leave to file a slightly amended outline of submissions; and
(ii)in response to Mr Armet’ s application in a proceeding filed 11 October 2022 seeking orders that the final hearing be listed for four days and for the provision of hard copies of the transcript of the proceedings free of charge, the Court ordered that:
(A)the final hearing be listed for three days with extended sitting hours of 9.00 am to 5.30 pm; and
(B)the application for provision of hard copies of the transcript of the proceedings free of charge be dismissed.
EVIDENCE
Mr Armet’s Affidavits
The affidavits filed by Mr Armet and sought to be relied on at final hearing were as follows:
(a)an affidavit sworn on 8 April 2021 and filed on 30 April 2021 (“April 2021 Affidavit”) (the Court notes that the April 2021 Affidavit has a typed “Date sworn/affirmed” of 22 March 2021 but it is apparent that this is incorrect as the April 2021 Affidavit is signed and dated 8 April 2021 by Mr Armet);
(b)an affidavit affirmed 23 July 2021 and filed 25 July 2021 (“July 2021 Affidavit”);
(c)an affidavit sworn 25 August 2021 and filed 30 August 2021 (“August 2021 Affidavit”);
(d)an affidavit sworn or affirmed on 7 July 2022 and filed 18 July 2022 (“July 2022 Affidavit”);
(e)an affidavit sworn or affirmed and filed on 12 August 2022 (“August 2022 Affidavit”);
(f)an affidavit sworn 4 October 2022 and accepted for filing on 13 October 2022 (“October 2022 Affidavit”); and
(g)an affidavit sworn or affirmed on 17 November 2022 and filed on 5 December 2022 (“November 2022 Affidavit”).
CFC objected to much of the material contained in and annexed to Mr Armet’s affidavits. The Court dealt with those objections over a day and a half at the commencement of the final hearing. The August 2021 and October 2022 Affidavits were struck out in their entirety, all of the annexures to the November 2022 Affidavit were struck out, and varying (but often significant) portions of the other affidavits and their annexures were also struck out. The outcomes are recorded in the Schedule to Armet v CFC Consolidated Pty Ltd (No 4) [2023] FedCFamC2G 325 (“Armet (No 4)”) (in which the Court notes that the April 2021 Affidavit is incorrectly noted as being sworn 22 March 2021: see [4(a) above]); see also Tr, 17 February 2023, pp 7-82 and 20 February 2023, pp 83-129.
As a consequence of the length of time necessary to deal with the objections to Mr Armet’s affidavits, and the timing of subpoenas issued to CFC’s two witnesses: see [7]-[11] below, Mr Armet gave evidence on the fifth day of the final hearing when his admissible affidavit evidence was tendered: Tr, 2 May 2023, p 494, and he was cross-examined: Tr, 2 May 2023, pp 496-513. There was no re-examination as such: Tr, 2 May 2023, p 514, and the Court endeavoured, unsuccessfully, to clarify an issue concerning sick or personal leave: Tr, 2 May 2023, pp 515-516.
CFC Witnesses
CFC filed no affidavits, but subpoenaed two former employees of CFC as witnesses, namely:
(a)Francine Flockton (“Ms Flockton”), who was at all relevant times a Supervisor in Off-Site Receiving (“OSR”) at CFC, and the Supervisor responsible for Mr Armet; and
(b)Samuel Allen Uren (“Mr Uren”), who worked in the Health and Safety Department at CFC, including being “part of the working health and safety workers comp[ensation] process for injury management”: Tr, 1 May 2023, p 311.
On the first day of the final hearing Mr French, who appeared for CFC, informed the Court that there had been no response from Ms Flockton to the subpoena issued to her, and he sought to “withdraw” that subpoena. Accordingly, the Court granted leave for the subpoena to be withdrawn: Tr, 17 February 2023, p 4. On the second day of hearing the Court was advised at about 10.20 am: Tr, 20 February 2023, p 99, that Ms Flockton was waiting outside the Court. Following a brief adjournment Mr French indicated that it was his intention to call Ms Flockton. The Court then observed that the subpoena to Ms Flockton actually required her attendance that day, that is 20 February 2023, and not on 17 February 2023 when Mr French had sought and been granted leave to “withdraw” the subpoena: Tr, 20 February 2023, p 100. Consequently Mr French sought to revoke the withdrawal of the subpoena and the Court indicated that given that no order had yet been entered with respect to the subpoena being “withdrawn” the order could be set aside, and the Court decided to do so in circumstances where it had the power to do so pursuant to r 17.05(1) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (“GFL Rules”).
Ms Flockton gave evidence-in-chief on the second day of the final hearing: Tr, 20 February 2023, pp 137-146. Ms Flockton was cross-examined by Mr Armet for almost a day and a half on the second and third days of the final hearing: Tr, 20 and 21 February 2023, pp 137-316, and re-examined toward the end of the third day of the final hearing: Tr, 21 February 2023, pp 316-326.
As a consequence of the length of Ms Flockton’s evidence it was necessary to list the final hearing for a further three days of hearing (it having been originally listed for two days, which was revised to three days with extended sitting hours of 9.00 am to 5.30 pm: see Armet (No 3)).
Mr Uren gave evidence-in-chief on the fourth day of the final hearing: Tr, 1 May 2023, pp 331-342. Mr Uren was cross-examined by Mr Armet for almost a day and a half on the fourth and fifth days of the final hearing: Tr, 1 and 2 May 2023, pp 343-483, and re-examined briefly after lunch on the fifth day of the final hearing: Tr, 2 May 2023, pp 484-488.
Observations on the witnesses
Mr Armet
In his evidence (and also in his conduct at hearing) Mr Armet manifested a powerful belief in his own cause and was often quite dogmatic and irascible. His evidence in cross-examination was somewhat convoluted, but much of that was due to vagueness or a lack of precision in the questions put to him by Counsel. That said, the Court considers that his evidence, by and large, was fundamentally reliable and credible, and on some critical points no different to that of CFC’s witnesses. There is no reason to treat Mr Armet’s evidence as lacking in credibility or as generally not believable, save to say that where it directly conflicts with that of CFC’s witnesses the Court has generally preferred the evidence of CFC’s witnesses as more reliable.
Ms Flockton and Mr Uren
Generally speaking the witnesses called on behalf of CFC gave evidence in a calm, logical and reasonable manner, about matters within their areas of workplace expertise and knowledge. They did so in the face of cross-examination by Mr Armet which was often exceedingly and unnecessarily lengthy and convoluted. It suffices to observe that the Court considers that the evidence given by the witnesses for CFC was generally reliable and credible. To the extent that there is any direct conflict between the evidence of Ms Flockton or Mr Uren and the evidence of Mr Armet the evidence of Ms Flockton and Mr Uren has been preferred as being more reliable.
THE FW ACT CLAIMS
General protections claims provisions
Mr Armet alleges that CFC contravened various of the general protections in Pt 3-1 during the course of his employment at CFC. Before dealing with those alleged contraventions it is convenient to set out the relevant statutory provisions and some of the law in relation thereto.
Section 340
Section 340(1) as follows:
(1) A person must not take adverse action against another person:
(a) because the other person:
(i) has a workplace right; or
(ii) has, or has not, exercised a workplace right; or
(iii)proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right.
(b) to prevent the exercise of a workplace right by the other person.
…
Section 340 thus provides that a person must not take adverse action against another person because the other person:
(a)has a workplace right;
(b)has or has not exercised a workplace right;
(c)proposes or proposes not to exercise a workplace right; or
(d)to prevent the exercise of a workplace right.
Section 341
Section 341(1) provides as follows:
(1) A person has a workplace right if the person:
(a)is entitled to the benefit of, or has a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body; or
(b)is able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument; or
(c) is able to make a complaint or inquiry:
(i)to a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrument; or
(ii)if the person is an employee - in relation to his or her employment.
In Alam v National Australia Bank Limited [2021] FCAFC 178; (2021) 288 FCR 301; (2021) 310 IR 71; (2021) 393 ALR 629 (“Alam”) the Full Court of the Federal Court at [74]-[81] per White, O’Callaghan and Colvin JJ observed that:
(a)in Whelan v Cigarette & Gift Warehouse Pty Ltd [2017] FCA 1534; (2017) FCA 1534; (2017) 275 IR 285 (“Whelan”) at [33]-[34] per Collier J the Federal Court proceeded on the basis that it was not necessary for the right to make a complaint or enquiry to be found in a contract of employment, and that it was sufficient if the complaint or enquiry related to the subject matter for which the contract of employment made provision; and
(b)in PIA Mortgage Services Pty Ltd v King [2020] FCAFC 15; (2020) 274 FCR 225; (2020) 292 IR 317 per Rangiah and Charlesworth JJ the Full Court of the Federal Court found it required the right or entitlement to make a complaint or enquiry to have an instrumental source, albeit that this could be found in the general law of contract.
The Full Court of the Federal Court in Alam considered the fact that a workplace right may be exercised by making a complaint or an enquiry suggested that it was not necessary for such a right to have an instrumental source: Alam at [95] per White, O’Callaghan and Colvin JJ (see also Evans v Trilab Pty Ltd [2014] FCCA 2464; (2014) 66 AILR 102-287 at [61] per Judge Lucev), as the right to make an enquiry would rarely be found in an instrument, and found that the approach in Whelan should prevail: Alam at [97] per White, O’Callaghan and Colvin JJ.
Section 342
Section 342(1) provides, relevantly, that an employer takes adverse action against an employee if the employer:
(a)dismisses the employee - s 342(1), Item 1(a);
(b)injures the employee in his or her employment - s 342(1), Item 1(b);
(c)alters the position of the employee to the employee’s prejudice - s 342(1), Item 1(c); or
(d)discriminates between the employee and other employees of the employer - s 342(1), Item 1(d).
No allegation of adverse action on the basis of Mr Armet’s termination of employment is made in the SOC and therefore no adverse action under s 342 Item 1(a) is before the Court in relation to Mr Armet’s termination of employment. Further, and in any event, no certificate has been issued by the Fair Work Commission (“FWC”) pursuant to s 368(3) and therefore Mr Armet is not entitled to make an application to the Court in relation to any workplace right dispute specifically concerning the termination of his employment: s 370. The Court therefore does not have jurisdiction to deal with any alleged contraventions under Pt 3-1 that directly concern CFC’s termination of Mr Armet’s employment.
An “injury” is concerned with an actual adverse effect, usually by the loss or alteration of a legal right by the employee in his capacity as an employee: Community and Public Sector Union v Telstra Corporation Ltd [2000] FCA 844; (2000) 99 IR 238; (2000) 48 AILR 4-325 (“CPSU v Telstra”) at [20] per Finkelstein J, cited with approval in TransportWorkers Union of Australia v Premier Motor Services Pty Ltd [2015] FCA 650 at [34] per Perry J, and may involve a loss of an “immediate practical incident of employment” such as a loss of pay or a reduction in rank: Childs v Metropolitan Transport Trust [1981] FCA 200; (1981) 29 AILR 24. In Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia [1998] HCA 30; (1998) 195 CLR 1; (1998) 72 ALJR 873; (1998) 79 IR 339; (1998) 153 ALR 643 at [4] per Brennan CJ, McHugh, Gummow, Kirby and Hayne JJ the phrase “injure an employee in his or her employment” was found to refer to “an injury of any compensable kind”. The phrase has been found to extend beyond financial injury or deprivation of contractual rights to any circumstances where an employee is treated substantially differently to the manner in which he or she is ordinarily treated, and where the treatment can be seen to be injurious or prejudicial: Construction, Forestry, Mining and Energy Union v De Martin & Gasparini Pty Ltd (No 2) [2017] FCA 1046 (“Gasparini (No 2)”) at [21] per Wigney J; Squires v Flight Stewards Association of Australia [1982] FCA 3 165; (1982) 2 IR 155 at 164 per Ellicott J.
Prejudicial alteration of employment has been found to extend beyond legal injury and to cover any adverse effect upon or deterioration in the advantages enjoyed by the employee before the conduct in question: Gasparini (No 2) at [22] per Wigney J.
Discrimination for the purposes of s 342(1), Item 1(d), requires discrimination between employees on the basis of the existence or non-existence or exercise or non-exercise of workplace rights, discrimination including both direct and indirect discrimination: Klein v Metropolitan Fire and Emergency Services Board [2012] FCA 1402; (2012) 208 FCR 178; (2012) 228 IR 399 at [97]-[98] and [101]-[102] per Gordon J. In this case no issue of discrimination on the basis of s 342(1), Item 1(d) arises because there is no evidence of any form of discrimination on the basis of workplace rights as between Mr Armet and other employees of CFC.
Section 360
Section 360 provides that, for the purposes of Pt 3-1 a person takes action for a particular reason if the reasons for the action include that reason.
Section 361
Section 361 provides that if, in an application in relation to a contravention of Pt 3-1, it is alleged that a person took action for a particular reason or with a particular intent and taking that action for that reason or with that intent would constitute a contravention of that part, it is presumed that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise.
What must be established
In the context of adverse action proceedings, it is for an applicant to assert and establish that:
(a)they exercised the workplace rights pleaded in their statement of claim;
(b)the conduct complained about in fact occurred; and
(c)the conduct constitutes adverse action under s 342(1).
If an applicant exercises a workplace right, proves the conduct complained of and that it constitutes adverse action, and the applicant alleges that the conduct was carried out for a prohibited reason, it is for the respondent to prove, on the balance of probabilities, that it was not motivated by an impermissible reason: s 361(1); Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32; (2012) 248 CLR 500; (2012) 86 ALJR 1044; (2012) 220 IR 445; (2012) 290 ALR 647 (“Barclay”) at [43]-[44] per French CJ and Crennan J.
In Barclay the High Court said:
(a)the task of a court in a proceeding alleging a contravention by reason of adverse action “…is to determine, on the balance of probabilities, why the employer took adverse action against the employee, and to ask whether it was for a prohibited reason or reasons which included a prohibited reason …”: Barclay at [5] per French CJ and Crennan J (and see also State of Victoria (Office of Public Prosecutions) v Grant [2014] FCAFC 184; (2014) 246 IR 441; (2014) 67 AILR 102-322 (“Grant”) at [32] per Tracey and Buchanan JJ);
(b)adverse action will have been found to have been taken if the prohibited reason, or reasons including the prohibited reason, for the action was a “substantial and operative reason” for the employer taking adverse action against the employee: Barclay at [104] per Gummow and Hayne JJ;
(c)the test is whether adverse action has been taken because of a prohibited reason: Barclay at [129] per Gummow and Hayne JJ; and
(d)“[e]xamining whether a particular reason was an operative or immediate reason for an action calls for an inquiry into the mental processes of the person responsible for that action”: Barclay at [140] per Heydon J.
The use of the word “because” in s 340(1) requires that a causal link be established between the adverse action complained of and the matters referred to in s 340: Russell v Institution of Engineers Australia T/A Engineers Australia [2013] FCA 1250 at [60] per Foster J (“Russell”). In Russell at [63] per Foster J the Federal Court observed that it was sufficient if the prohibited reason is one of several reasons for the taking of the action (as to which see s 360), but the prohibited reason “must have operated as a substantial and operative factor in the taking of the adverse action”.
In relation to the evidence bearing upon the decision made by an employer:
(a)French CJ and Crennan J in Barclay said:
(i)at [41] that “…why an employer took adverse action against an employee is a question of fact…”;
(ii)at [44] that “…direct evidence of a decision-maker as to state of mind, intent or purpose will bear upon the question of why adverse action was taken, although the central question remains ‘why was the adverse action taken?’”; and
(iii)at [45] that:
This question is one of fact, which must be answered in the light of all the facts established in the proceeding. Generally, it will be extremely difficult to displace the statutory presumption in s 361 if no direct testimony is given by the decision-maker acting on behalf of the employer. Direct evidence of the reason why a decision-maker took adverse action, which may include positive evidence that the action was not taken for a prohibited reason, may be unreliable because of other contradictory evidence given by the decision-maker or because other objective facts are proven which contradict the decision-maker's evidence. However, direct testimony from the decision-maker which is accepted as reliable is capable of discharging the burden upon an employer even though an employee may be an officer or member of an industrial association and engage in industrial activity.
(b)Gummow and Hayne JJ in Barclay at [127] said that:
In determining an application under s 346 the Federal Court was to assess whether the engagement of an employee in an industrial activity was a “substantial and operative factor” as to constitute a “reason”, potentially amongst many reasons, for adverse action to be taken against that employee. In assessing the evidence led to discharge the onus upon the employer under s 361(1), the reliability and weight of such evidence was to be balanced against evidence adduced by the employee and the overall facts and circumstances of each case; but it was the reasons of the decision-maker at the time the adverse action was taken which was the focus of the inquiry.
In Barclay the High Court also observed that the purpose of s 361 was to place on the respondent employer the onus of proving that which lies peculiarly within the employer’s own knowledge: Barclay at [50] per French CJ and Crennan J, at [86] per Gummow and Hayne JJ, and at [149] per Heydon J.
If the decision-maker’s evidence is accepted as being reliable, the onus under s 361 will be discharged. This involves an assessment of the evidence given by the decision-maker: Construction, Forestry, Mining and Energy Union v Anglo Coal (Dawson Services) Pty Ltd [2015] FCAFC 157; (2015) 238 FCR 273; (2015) 67 AILR 102-492 at [28] per Jessup J. The Court is not, however, bound to accept the decision-maker’s evidence. It may be unreliable if there is contradictory evidence or other objective facts that undermine it. Where a decision-maker is believed it is difficult to undermine that evidence: Barclay at [45] per French CJ and Crennan J; Grant at [49] per Tracey and Buchanan JJ.
In Alam at [12]-[14] per White, O’Callaghan and Colvin JJ the Full Court of the Federal Court found it to be settled in relation to the application of ss 361 and 340 that:
(a)in order to attract the application of s 361, an applicant should allege with sufficient particularity both the action said to constitute “adverse action” and the particular reason or particular intent with which it is said the action was taken;
(b)the party making the allegation that adverse action was taken “because” of a particular circumstance must establish the existence of that circumstance as an objective fact;
(c)an employer takes adverse action in contravention of s 340 if a proscribed reason is a “substantial and operative” reason for the action or if the reasons for the action include the proscribed reason;
(d)the discharge of the s 361 onus requires proof on the balance of probabilities and usually requires decision-makers to give direct evidence of their reasons for taking the adverse action;
(e)the determination of why an employer took adverse action against an employee requires an inquiry into the actual reason or reasons of the employer and is to be made in the light of all the circumstances established in the proceeding;
(f)while the evidence of the decision-maker as to the reasons for the taking of the adverse action may, if accepted by the Court, satisfy the s 361 onus, such evidence is not a necessary pre-condition;
(g)the Court’s rejection of the evidence of the decision-maker as to the reasons for the adverse action will ordinarily be “a weighty consideration and often a determinative consideration” in the determination of whether the reason alleged by the applicant was a substantial and operative reason for the action, but such a rejection does not relieve the Court from considering all the evidence probative of whether the reason asserted by the applicant has been negated;
(h)even if the reasons advanced by a respondent as the actual reasons for the decision are accepted, the absence of evidence that there were no additional reasons or that the actual reasons did not include the alleged proscribed reasons, may result in a failure to rebut the presumption;
(i)the decision-maker’s knowledge of the circumstance asserted by an applicant to be the reason for the adverse action, and even its consideration, does not require a finding that the action was taken because of that circumstance. Nor does the fact that the adverse action has some association with a matter supporting a proscribed reason; and
(j)adverse action taken against a person because of conduct resulting from the exercise of workplace rights may not offend the s 340(1) prohibition.
It follows then, and it is important to observe that, the decision-maker’s subjective intention, if accepted by the primary judge in the context of relevant objective facts, may provide a defence to an adverse action claim. Mere assertion is not enough, however, and whether an employer took adverse action for a prohibited reason is a question of fact for a primary judge to determine on the evidence, bearing in mind the employer bears the onus to show that it did not take adverse action for a prohibited reason.
Some further discussion in relation to the law as it relates to the above matters is set out below in the Court’s consideration of the various claims.
Adverse action claims and response
In the SOC at [31]-[34] Mr Armet claims that:
(a)the “negligence of … [CFC] and its management were originated from opinions and behaviour leading to practices and actions of racial segregation and discrimination (ill treatment, coercion, medical neglect, misrepresentation, wilful neglect, threatening and intimidation, undue influence and pressure.)” and that he:
(i)was not informed about his workplace rights;
(ii)was not able to exercise any of his workplace rights;
(iii)was not afforded first aid, medical assistance and medical treatment;
(iv)was not afforded any medical care;
(v)was not afforded any protection of the law;
(vi)was under procedures and processes which were strictly unfair;
(vii)was not afforded with natural justice;
(viii)had to follow CFC’s orders which were not complying with Occupational Health and Safety rules; and
(ix)was not placed in a safe work environment and healthy work conditions;
(b)he reported 17 incidents, issues, matters and medical conditions from 18 March 2015 until he was diagnosed unfit for work on 15 September 2015;
(c)workplace rights contravention, discrimination, coercion, undue influence or pressure, and misrepresentation “were permanently applied at the workplace during that period”; and
(d)CFC contravened other occupational health and safety regulations and the National Code of Practice for Noise Management and Protection of Hearing at work as well as in relation to the use and maintenance of plant at the workplace.
CFC denies these claims.
The claims made by Mr Armet are not well articulated, and doing the best it can it appears to the Court that Mr Armet asserts that the following alleged conduct of CFC amounts to adverse action in contravention of s 340:
(a)a general failure to provide a safe workplace;
(b)more specific failures in relation to workplace health and safety including:
(i)failure to provide hearing protection:
(ii)failure to remove Mr Armet from a location which was unsafe;
(iii)requirement to operate particular machinery outside of a warehouse;
(iv)requirement to perform the same duties following the injury;
(v)requirement to remain and work at a particular unsafe location after injuries suffered in the workplace;
(vi)failure to provide light duties;
(vii)failure to provide access to or provision of medical treatment; and
(viii)failure to comply with injury management procedures; and
(c)failure to initiate the workers’ compensation process.
CFC denies the above allegations and says that:
(a)none of those allegations satisfy the s 342 definition of adverse action;
(b)none of the allegations referred to in the SOC or made otherwise above correlate with the circumstances in which a person takes adverse action as set out in s 342;
(c)Mr Armet has not pleaded any loss or alteration of any of his legal rights as an employee or any change to any immediate practical incident of his employment;
(d)Mr Armet has not alleged any injury in his employment, any alteration to his position as Freight Officer or to the terms and conditions of his employment;
(e)Mr Armet is simply alleging that CFC should have done more to ensure that his working environment was safe following his injuries;
(f)Mr Armet has not pleaded any positive act that CFC has done that has left him worse off, but rather a list of safety “failures” that he alleges left him worse off in the sense of contributing to or exacerbating his physical injury;
(g)in essence, Mr Armet is accusing CFC of not altering his work environment or modifying it to ensure that he was not injured or that his injury was not exacerbated, and as such, the allegations resemble allegations of safety breaches and not breaches of s 340; and
(h)these alleged matters could not constitute adverse action within the category of discrimination under s 342(1) Item 1(d) because the alleged failures do not allege differential treatment. Moreover, on their face, they appear to assert failure to provide differential treatment to Mr Armet to take account of his physical injury.
Right to a safe workplace or a safe system of work
The common law has now long recognised that an employee has the right to a safe workplace or a safe system of work: Wilsons and Clyde Coal Co Ltd v English [1938] AC 57 at 81 per Lord Wright and 86 per Lord Maugham; O’Connor v Commissioner for Government Transport (1959) 100 CLR 225 at 229 per Dixon CJ, Webb, Fullagar, Kitto and Taylor JJ, but for present purposes the common law right has now been largely subsumed by the provisions of modern workplace health and safety legislation. Pursuant to s 341(1)(a), a person has a workplace right if the person is entitled to the benefit of, or has a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body. The expression “workplace law” is defined in s 12 to mean, among other things “any … law of the Commonwealth, a State or a Territory that regulates the relationships between employers and employees (including by dealing with occupational health and safety matters)”. It follows that provisions of workplace health and safety legislation which provide employees the benefit of, or a role or responsibility in relation to workplace health and safety, are “workplace laws” and as such constitute workplace rights. There are a number of decisions of the Federal Court and this Court to that effect: Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Visy Packaging Pty Ltd [2011] FCA 1001; (2011) 213 1R 32 at [56]-[57] per Dodds-Streeton J; Australian Rail, Tram and Bus Industry Union v Australian Western Railroad Pty Ltd [2017] FCCA 1954 at [112] per Judge Lucev; McNamara v Era Pacific Pty Ltd [2021] FCCA 1689; (2021) 308 IR 214 at [99]-[102] per Judge Tonkin; Mullan v Calold (WA) Pty Ltd trading as Harcourts Kalamunda [2023] FedCFamC2G 404 at [76]-[78] per Judge Ladhams; Homes v Australian Carers Pty Ltd(No 2) [2023] FedCFamC2G 714; (2023) 379 FLR 217 at [17] per Judge Lucev.
In Western Australia at the relevant time (2014-2016) the general workplace health and safety duties of an employer were set out in the Occupational Safety and Health Act 1984 (WA) (“OSH Act”) and, under s 19(1) of the OSH Act, specifically included the benefit of a working environment in which an employee was not to be exposed to hazards, and which relevantly provided as follows:
(1)An employer shall, so far as is practicable, provide and maintain a working environment in which the employees of the employer (the employees ) are not exposed to hazards and in particular, but without limiting the generality of the foregoing, an employer shall —
(a)provide and maintain workplaces, plant, and systems of work such that, so far as is practicable, the employees are not exposed to hazards; and
(b)provide such information, instruction, and training to, and supervision of, the employees as is necessary to enable them to perform their work in such a manner that they are not exposed to hazards; …
Section 19(1) of the OSH Act imposed a statutory duty on employers to, so far as is practicable, maintain a safe working environment in which employees are not exposed to hazards, and in particular to provide and maintain a safe workplace and provide supervision for that purpose. It was thus a workplace right of which an employee had the benefit.
Section 20 of the OSH Act imposed a statutory duty on employees to ensure their own health and safety at work, and was in the following terms:
(1) An employee shall take reasonable care —
(a) to ensure his or her own safety and health at work; and
(b)to avoid adversely affecting the safety or health of any other person through any act or omission at work.
(2)Without limiting the generality of subsection (1), an employee contravenes that subsection if the employee —
(a)fails to comply, so far as the employee is reasonably able, with instructions given by the employee’s employer for the safety or health of the employee or for the safety or health of other persons; or
(b)fails to use such protective clothing and equipment as is provided, or provided for, by his or her employer as mentioned in section 19(1)(d) in a manner in which he or she has been properly instructed to use it; or
(c)misuses or damages any equipment provided in the interests of safety or health; or (d) fails to report forthwith to the employee’s employer —
(i)any situation at the workplace that the employee has reason to believe could constitute a hazard to any person that the employee cannot correct; or
(ii)any injury or harm to health of which he or she is aware that arises in the course of, or in connection with, his or her work.
(3)An employee shall cooperate with the employee’s employer in the carrying out by the employer of the obligations imposed on the employer under this Act.
Rights with respect to workers compensation
The relevant workers compensation legislation in force at the time of Mr Armet’s injury (March 2015) included the Workers’ Compensation and Injury Management Act 1981 (WA) (“WCIM Act”), Workers’ Compensation and Injury Management Regulations 1982 (WA) (“WCIM Regulations”), and Workers’ Compensation Code of Practice (Injury Management) 2005 (WA), none of which imposed an obligation on employers:
(a)to inform employees of their right to workers compensation; or
(b)to pay for an employee’s medical appointments prior to acceptance of the workers compensation claim, by the insurer, save in particular circumstances which do not apply here: WCIM Act, ss 57 and 58.
It follows that when seeing a medical provider for assessment or treatment, an injured employee was usually required to make payment to the medical provider until a claim was accepted by the insurer, and the obligation with respect to payment to a medical provider of an employee’s medical expenses did not arise until the insurer accepted the workers compensation claim. This was generally the practice at CFC: Tr, 2 May 2023, pp 449 and 480. Thus, whilst Mr Armet had a workplace right to workers compensation arising from his injury on 18 March 2015 following acceptance of liability by CFC’s workers compensation insurer he did not have a right to any form of payment for expenses incurred prior to acceptance of that liability.
Mr Armet’s employment and asserted workplace rights
From commencement of employment and training
Having regard to the employment contract dated 25 January 2013, a Staff Change Form dated 12 November 2014, and a letter to Mr Armet regarding a change of location dated 13 November 2014, the Court is satisfied that:
(a)Mr Armet commenced employment with CFC on 29 January 2013 in the position of Freight Officer at a location in Spearwood; and
(b)on 24 November 2014 (or with effect from that date) Mr Armet was transferred to CFC’s Hazelmere site to continue work as a Freight Officer which required him to move freight contained on pallets in and around the OSR.
The Court is also satisfied, on Mr Armet’s own evidence, that on 24 November 2014 Mr Armet undertook:
(a)a health and safety induction for the Hazelmere site: Tr, 2 May 2023, p 511; and
(b)an area induction for the Hazelmere site: Tr, 2 May 2023, p 513.
The content of the health and safety induction was in dispute.
In the July 2022 Affidavit at [2(a)] Mr Armet gave evidence that:
The Applicant signed a HSE Induction dated 24 November 2014
The following topics were not covered:
•workers compensation,
•forklift safety,
•dispute resolution,
•nor were mentioned any ride-on electric pallet jacks (EPJs)
Mr Armet gave evidence in cross-examination with respect to the health and safety induction at Tr, 2 May 2023, pp 511-513 as follows:
There was workers compensation, PPE, dispute resolution and those kind of things not covered.
… the induction … on 24 November that lasts one day, I’m telling you the whole thing in one day, impossible. Like, crazy, bang, bang, bang, bang, bang. So not – no workers comp, no injury management system, nothing. Nothing like this.
The PPE, if it was mentioned to me it must have been very fast, but definitely in that the PPE was related to the use of the machine, there was no mention of hearing protection for the machine. Okay. Now, the PPE is very quick at Centurion. Safety boots, the uniform, and the gloves and that’s it. Finito.
So what you just told us is that they may indeed have covered personal protective equipment?---Yes.
I remember sufficiently to be pretty sure that there was no mention of hearing protection in any instruction about protection for using of the plant.
Like I said, I will repeat again, when – it’s not going to take 10 hours to tell to the people, “Here is the – the – the – the PPE that you need to wear, safety goggles that the company gives you, the uniform that the company gives you, and the gloves that the company gives you”. That’s all. Okay. Time – five minutes, maybe less. Okay. That’s the induction for the PPE at – at Centurion. That’s it.
So now you’re saying that you remember the content of the PPE component of the induction that was – lasted only less than five minutes?---Probably.
… all the topics that you have to do during one day and you have to visit all the yard. …. It took us about two or three hours to walk and so there’s not much time left to – to do all these things you are writing or what are written on the list, and definitely the ones that they didn’t cover was the ones that could have helped me in the future was the workers compensation and injury management and the dispute and all these things.
The PPE, they told, “You have to wear the safety boots that we give. You have the wear the uniform that we give, and you have to wear the gloves because you are outside and you need to carry the platforms and all these things”. That’s it.
Mr Armet was referred in cross-examination to a written record of a health and safety induction (“Health and Safety Induction Record”): July 2022 Affidavit at p 298, dated 24 November 2014, signed by Mr Armet, and which acknowledges that he has received “training on information covering the above topics”, the list of topics including “Workers compensation”, “Personal Protective Equipment (PPE)”, “Back Injury Prevention”, “Footwear Policy”, “Pedestrian Policy” and “Dispute Resolution”, plus a further sixteen topics.
In cross-examination Mr Armet admitted that he had signed the Health and Safety Induction Record with the acknowledgment: Tr, 2 May 2023, p 512, but also said that:
There was definitely – I mean, you have no choice. I think you are – you’re – you – you – I don’t think you don’t have a – a good idea about the workforce, how it works. You’re meant to sign when people tell – tell you to sign. Okay. This is true. If you don’t sign it, you take the door.
Mr Armet had earlier given similar evidence about signing an induction form on another CFC site in 2013: Tr, 2 May 2023, p 510. By “take the door” it is plain that Mr Armet meant “leave the employment of CFC”.
The Health and Safety Induction Record together with Mr Armet’s evidence establishes that there was an induction, and that the topic of personal protective equipment (“PPE”) was covered. In relation to issues in dispute, that is whether the induction covered personal hearing protection (and in particular, personal hearing protection when working on the ride-on an electric pallet jacks (“EPJ”)), workers compensation and injury management, the only direct evidence is that of Mr Armet. Read as a whole Mr Armet’s evidence in cross-examination and his affidavit evidence in relation to these issues is consistent in asserting that there was no specific mention of hearing PPE, workers compensation or injury management. The Court is satisfied on the basis of his evidence that those assertions were true.
Mr Armet complains about a lack of training with respect to health and safety, a lack of PPE (specifically with respect to hearing protection) and the failure to undertake Job Hazard Analysis (“JHA”) and the so-called Take-5s, in the lead up to and upon commencement at CFC’s Hazelmere site, and thereafter once he had commenced at that site. Insofar as these omissions occurred, and insofar as they were manifestations of a workplace right to a safe workplace or a safe system of work, they were not adverse action by CFC. There is no evidence that these omissions occurred because Mr Armet had or exercised or proposed to exercise or was prevented from exercising a workplace right (contrast McNamara where Mr McNamara exercised a workplace right by refusing to perform a task to collect 10 metre steel beam using a heavy rigid crane truck and deliver the steel beam to a client’s premises without assistance: at [100] per Judge Tonkin), or that the substantial and operative reason for the safety omissions complained of by Mr Armet during this period were omissions by reason of a prohibited reason under s 340 (or any other section of the FW Act) or were the substantial and operative reason for those safety omissions: Barclay at [5] per French and Crennan JJ and [104] and [129] per Gummow and Hayne. There is no causal link: Russell at [60] per Foster J. Rather, these omissions were the product of the system of work generally adopted by CFC at the Hazelmere site. Further, there is no evidence of adverse action as defined in s 342(1), Item 1, to Mr Armet by way of injury, alteration to position, or discrimination as against other employees, arising from these particular omissions.
The EPJs
The EPJs are machines with two fork legs operated by an operator standing on the back of it and using handles to turn it left and right, and the fork legs can lift up and down, and are pushed into a pallet to enable the pallet to be lifted up or down. By steering an EPJ can be moved either back or forward. The EPJ has horns which beep to let people know that the EPJ is in the vicinity. The EPJs are an electric way of moving pallets, used at CFC because some of the pallets (or pallet loads) could be quite heavy, weighing up to, and possibly in excess of, 300 kilograms. See Tr, 20 February 2023, pp 139-140.
The EPJs were used to carry pallets of goods both inside and outside the CFC OSR warehouse. Mr Armet asserts that they should not have been used, and were not designed to be used, outside the warehouse on rough surfaces, and that consequently that their use outside was a health and safety issue, in particular in relation to excessive noise.
In relation to the EPJs Mr Armet alleges that:
(a)he was not provided with any training to operate the EPJs and their operation was not explained to him;
(b)he was not asked to complete prestart checklist forms on the EPJs;
(c)he was not provided with hearing protection or asked to wear hearing protection at the Hazelmere site when operating the EPJs;
(d)96 percent of the time spent on shift he operated the EPJ outside the warehouse and all over the external yard on a road bitumen surface; and
(e)because his duties were exclusively manual at the Hazelmere site he used the EPJ for about three to four hours per day with an estimated travel distance of about 16 kilometres per day.
CFC denies that Mr Armet was not provided with any training in relation to the EPJ, and denies the allegations made generally, and refers to the inductions and training it alleges was given to Mr Armet on his commencement at the Hazelmere site on 24 November 2014, and insofar as manual handling was concerned, on 27 November 2014. Mr Armet concedes that he went to a Manual Handling Training Course facilitated by an external trainer: July 2022 Affidavit at [2(d)]. There is no evidence as to the content of the Manual Handling Training Course.
Mr Armet tendered, through Ms Flockton in cross-examination, Exhibit 4 which was a CFC document entitled “Electronic Pallet Trolley Operations” (“EPJ Operations Document”): Tr, 20 February 2023, pp 171-172. The EPJ Operations Document bears an issue date of 26 September 2008, but also bears a review date of 3 July 2017 and an indication that as tendered it was “Revision Number: 2”. There is no evidence as to the form or content of the EPJ Operations Document at the time at which Mr Armet actually worked at the Hazelmere site (November 2014 to September 2015), or as to its original form, or as to the revisions made in revision numbers 1 and 2, or as to whether any amendments arose from the 3 July 2017 review. As tendered the EPJ Operations Document is a document that sets out a procedure with respect to the EPJs which postdates events relevant to these proceedings. Accordingly, the Court has placed no weight upon it.
Ms Flockton’s evidence as to hearing protection is that hearing PPE was provided to EPJ operators by CFC but that CFC did not enforce the wearing of the hearing PPE and that it was up to individual operators as to whether they wore the hearing PPE: Tr, 20 February 2023, p 166 and 21 February 2023, pp 325-326, but that the noise from the operation of the EPJs was not excessive, and that hearing protection had not been a major issue in the OSR area: Tr, 20 February 2023, p 175. Ms Flockton was cross-examined on noise levels by reference to 2009 noise and vibration reports prepared for CFC, of which she was aware in the sense that they had been prepared, but which she had never seen, but the cross-examination was to little effect because of her lack of knowledge about the content of the reports: Tr, 20 February 2023, pp 167-176.
Ms Flockton also gave evidence that the EPJs were used both inside and outside the OSR warehouse, and that she disagreed that the EPJs were not meant to be used on other than a flat, clean and polished concrete floor: Tr, 20 February 2023, pp 168-169 and 173. Mr Armet declined to call other witnesses or provide other evidence to which he may seemingly have had access in relation to whether the EPJs were only to be used inside: Tr, 20 February 2023, p 171.
Ms Flockton was an experienced supervisor (having worked at CFC since at least 2009: Tr, 20 February 2023, p 167), but was no longer employed by CFC. Her evidence as to the operation of the EPJs and noise levels is to be preferred to that of Mr Armet who worked in the OSR for only a few months. There was no expert evidence called as to the proper operation of EPJs or the noise levels arising from their operation in the CFC environment during the period 2014-2016.
There is no evidence that the noise levels in the OSR and in operating the EPJs either inside or outside were such that there was an obligation on the part of CFC to provide hearing protection to its employees engaged in activities on, in and around the EPJs. Insofar as there might have been a lack of training of Mr Armet in how to operate the EPJs that does not appear to have prevented him from doing so.
There is no evidence that the conduct of CFC in relation to the EPJs occurred because Mr Armet had exercised or proposed to exercise or was prevented from exercising a workplace right (again contrast McNamara: see [56] above), or that the substantial and operative reason for Mr Armet not being trained on the EPJs, or way in which the EPJs were operated during this period, and which are now complained about by Mr Armet was conduct by reason of a prohibited reason under s 340 (or any other section of the FW Act) or were the substantial and operative reason for that conduct: Barclay at [5] per French and Crennan JJ and [104] and [129] per Gummow and Hayne. There is no causal link: Russell at [60] per Foster J. The lack of training and the manner of operation of EPJs, (including leaving the wearing of hearing protection to a voluntary choice by employees), were the product of the system of work generally adopted by CFC at the Hazelmere site. The system with respect to the operation of EPJs was seemingly the same for all employees: Tr, 21 February 2023, pp 325-326. In relation to the operation of the EPJs there is no evidence of adverse action as defined in s 342(1), Item 1, in relation to Mr Armet by way of injury, alteration to position, or discrimination as against other employees, arising from CFC’s conduct with respect to the operation of the EPJs.
18-19 March 2015
Mr Armet alleges that on 18 March 2015 he suffered a back and right foot injury during an incident at work due to unsafe working procedures. He alleges that:
(a)he was sent to an unusual work location to replace an unfit individual on arrival at work at 5.45 am;
(b)he was not part of any prestart meeting;
(c)he was not given information about the task, nor was it explained to him;
(d)he was told to “hurry-up” the unloading operations of a container; and
(e)he was provided with a milk crate to stand on in order to perform the task.
CFC admits that on 18 March 2015 Mr Armet reported a lower back injury, but not a foot injury, and further says that:
(a)Mr Armet attended for work at the Hazelmere site for his shift commencing at 6.00 am; and
(b)an incident report and investigation was conducted into the incident on 18 March 2015.
Mr Armet says that after reporting the incident and the injury he was sent back to work at his usual location to perform his usual duties, and was not:
(a)provided with any immediate first aid or medical assistance;
(b)provided with any medical assistance;
(c)asked to see a doctor and to complete a medical examination of his back;
(d)placed under the protection of any workplace law;
(e)asked to provide any medical certificate;
(f)notified of the need to fill out any forms;
(g)informed about his workplace rights, nor were these explained;
(h)part of any injury management procedures; and
(i)provided with benefit from any workplace instrument and protection.
CFC admits the above allegations, save to say that Mr Armet did not return to work on 18 March 2015 after reporting the injury.
The incident was the subject of a CFC Incident Notification and Reporting Investigation Form (“INRI Form”).
Section A of the INRI Form was filled out by Mr Armet. In Section A he indicates that he had been working for about two and a half hours on shift in the OSR when he suffered a lower back (hip area) injury. Mr Armet identifies the cause of the incident as being manual handling and the nature of the injury as being a sprain or strain. Asked to describe the incident he wrote as follows:
While unloading containers …, worker reached up above head height (at a strain) to get to a carton weighing above 25 kgs, hurting his lower back in the process.
Section B of the INRI Form is the incident investigation. The incident investigation indicates that:
(a)Mr Armet was injured unloading a container;
(b)he was trained to perform the task;
(c)safe work procedures or work instructions were followed “as best as possible”;
(d)the hazard was not one identified in the relevant Take 5; and
(e)in a so-called miscellaneous finding said that the container was loaded incorrectly so as to rely on human contact to unload it.
In the explanation of contributing factors three contributing factors were identified as follows:
(a)that unsafe instructions were given;
(b)that Mr Armet was told to hurry up with unsafe procedure; and
(c)that incorrect protective gear had been provided.
The risk associated with the incident was scored at 13 which meant that the risk level was high (the only higher risk level was extreme) and meant that the “risk should be reduced as soon as possible” and that “managers to decide on controls and review”. In term of corrective actions engineering and administration controls were required to reassess correct procedures to do the job safely, and that task was to be undertaken by Ms Flockton.
Mr Armet signed off on the INRI Form on 18 March 2015.
Mr Armet says that he went back to work on 19 March 2015 with a slight pain in his back radiating to his right leg and a slight pain in his right foot, with the pain in his foot disappearing once the foot was inside safety boots and he was sufficiently warmed up. Mr Armet says that he was:
(a)not asked to provide or fill in any forms by management;
(b)not provided with any medical assistance or care;
(c)not asked to complete any medical examination or to see a doctor; and
(d)working at his usual location and performing his regular manual duties.
CFC admits the above allegations save that it does not know whether Mr Armet had the alleged pain and says further that Mr Armet did not report any further pain or request light duties on 19 March 2015.
In relation to the provision of medical assistance consequent upon the injury suffered in the incident the question arises as to whether there is a workplace right to the provision of medical assistance in such circumstances. In days of yore, when the employment contract was more akin to a marriage contract, an employer may have been “obliged to provide for his servant in sickness and in health”: Scarman v Castell (1795) 1 Esp 270; (1795) 170 ER 353. By the early nineteenth century it would appear that the employer was not ordinarily liable, even in the case of a domestic servant, to provide medical services to an employee: GJ Webber, The Law of Master and Servant (Fifth Edition), (London: Sir Isaac Pitman and Sons Ltd, 1967), pp 222-223, citing Wennall v Adney (1802) 3 Bos & P 247; (1802) 127 ER 137 and Sellen v Norman (1829) 4 C & P 80; (1829) 172 ER 616; EM Smith, A Treatise on the Law of Master and Servant (Sixth Edition), (London: Sweet & Maxwell, 1906), pp 177-179. By the early twentieth century it appears that the obligation had been modified to one requiring the summoning of medical assistance where it was needed: Jeffrey v Donald (1901) 9 SLT 199; M’Keating v Frame (1921) SC 382; (1921) SLT 217; (1921) Sc LR 238, SC at 389 per Lord Ormidale.
In Attorney-General for New South Wales v The Perpetual Trustee Company (Limited) [1952] HCA 2; (1951) 85 CLR 237; (1952) 52 SR (NSW) 3; (1952) 69 WN (NSW) 49; [1952] ALR 125; (1952) 25 ALJR 762 (“The Perpetual Trustee”), CLR at 291 per Fullagar J a member of the High Court observed that (footnotes omitted and emphasis in original):
A father is under a duty to provide medical services for his child. Whether a master was subject to a similar duty in relation to his servant (apart from express contract) is a question on which there has been some conflict of authority. The better view seems to be that he was not. The cases are discussed in a note to Sellan v. Norman. Lord Kenyon in Scarman v. Castell held that a master was bound to pay for medicines supplied to his servant while under his roof and part of his family, but in Wennall v. Adney, Heath J. said : " I believe that the humanity of Lord Kenyon misled him ". In Reg. v. Smith, Patterson J. directed a jury that by the general law a master was not bound to provide medical services for a servant, but that the case was different with respect to an apprentice. It seems never to have been thought that a master owed such a duty to a servant except to an apprentice or one who lived under his roof, and I think, with respect, that Williams J., in Smaill v. Alexander wrongly applied the cases relating to father and child to a case which was merely that of master and servant.
The Perpetual Trustee was affirmed on appeal to the Privy Council, but the present issue did not there arise: Attorney-General for New South Wales v Perpetual Trustee Company (Limited) (1955) 92 CLR 113; [1955] ALR 469; (1955) 29 ALJR 74.
The learned authors of Macken’s Law of Employment (where some of the early English cases referred to above are cited) go on to observe: C Sappideen, et al, Macken’s Law of Employment (Ninth Edition), (Pyrmont: Thomson Reuters (Professional) Australia Limited, 2022), pp 208-209 [5.390], that:
[in the early twentieth century] [i]n relation to minor illnesses the employer would be entitled to rely on the employee to seek assistance for themselves.
Nowadays work health and safety legislation imposes more onerous obligations on employers …
The OSH Act did not contain provisions akin to those in s 21(2)(d) of the Occupational Health and Safety Act 1985 (Vic) (“Victorian OHS Act”) considered by the Supreme Court of Victoria in AB Oxford Cold Storage Co Pty Ltd v Arnott [2003] VSC 452; (2003) 8 VR 288; (2003) 130 IR 179 (“AB Oxford Cold Storage”) where it held that the statutory duty “to provide adequate facilities for the welfare of employees at any workplace under the control and management of the employer” was one which “encompass[ed] a protocol or a system to enable the facilitation of the provision of medical service to the injured workers and/or the provision of medical or first aid assistance to assess their condition”: AB Oxford Cold Storage at [56] per Kellam J, and that the failure to provide first aid or medical treatment at the workplace to assist employees who had suffered carbon monoxide poisoning in the workplace was a positive failure to provide adequate facilities for the welfare of employees: AB Oxford Cold Storage at [57] per Kellam J.
The circumstances in this case are in any event quite different. There was no statutory equivalent of s 21(2)(d) of the Victorian OHS Act in the OSH Act. Critically, nothing in the evidence suggests that Mr Armet required or sought particular or further medical assistance on the day of the incident. Further, Mr Armet came to work on 19 March 2015, and it was not until 20 March 2015 that he took leave from work, and it was not until 21 March 2015 that he saw his general practitioner in relation to the 18 March 2015 incident. In the circumstances there was no obligation on CFC to provide particular or further medical assistance on 18 or 19 March 2015, and otherwise nothing in the circumstances which would establish a workplace right under s 341 to the provision of particular or medical assistance at work by reason of any provision of the OSH Act or otherwise.
Mr Armet says that he was not asked to provide a medical certificate. That no doubt was because there was no requirement to provide a medical certificate in circumstances where, on his version of events, he continued to work on 18 and 19 March 2015: July 2022 Affidavit at [6], and on CFC’s version of events he only missed part of a shift on 18 March 2015, and where in any event there was no requirement for a medical certificate unless it was “required by the employer”: s 107(3). Plainly CFC did not require a medical certificate to be provided by Mr Armet for 18 or 19 March 2015.
There was no obligation on CFC to explain to Mr Armet what his workplace rights were.
There was no evidence, and it is otherwise not apparent, what forms Mr Armet suggests CFC management ought to have notified him of the need to fill out, save for the INRI Form which was completed at the initiative of CFC.
As at the close of business on 19 March 2015 Mr Armet was working at his usual location and performing his usual duties and there was no evidence that at that time Mr Armet had asserted, or that he had provided medical evidence, that he was unable to work at his usual location or to perform his usual duties and no evidence that he had requested to work at another location or to perform other or light duties.
The incident on 18 March 2015 was a workplace accident. It was not action taken against Mr Armet by CFC in relation to any workplace right for the purposes of s 340. Otherwise, nothing asserted by Mr Armet in relation to what occurred on 18 and 19 March 2015 constitutes adverse action by CFC because of any workplace rights Mr Armet had, exercised or not exercised, or which he proposed or did not propose to exercise.
20 March 2015
On 20 March 2015 Mr Armet took a period of personal leave.
Mr Armet says that on Friday, 20 March 2015:
(a)the pain was not going away;
(b)he did not go to work that morning;
(c)he decided to see a doctor;
(d)he informed Ms Flockton before the start of shift at 6.00 am that he was not attending for work;
(e)he contacted WorkCover who instructed him to see his choice of general practitioner; and
(f)Ms Flockton and the Division Manager at CFC, a Mr Kitching, rang him about 11.30 am – 12.00 pm to find out if he was going on “work compo” (workers compensation), but at that time he was not aware of the relevant regulations and processes in relation to workers compensation.
CFC admits that Mr Armet informed Ms Flockton that he would not be attending and did not attend work on 20 March 2015: Defence at [8]. There is an application for leave on 20 March 2015.
Nothing asserted by Mr Armet in relation to what occurred on 20 March 2015 constitutes adverse action by CFC because of any workplace rights Mr Armet had, exercised or not exercised, or which he proposed or did not propose to exercise.
21-25 March 2015
On 21 March 2015 Mr Armet saw his general practitioner who referred him for a CT scan of his lumbar spine.
The CT lumbar spine scan performed on 23 March 2015 for Mr Armet is in evidence and indicates a clinical history of back pain radiating to the right leg but apart from observing instances of shallow disc bulges there is nothing remarkable evident in the radiologist’s report.
Mr Armet’s general practitioner issued two medical certificates dated 21 and 23 March 2015 respectively.
The 21 March 2015 medical certificate indicates that Mr Armet is unable to do pre-injury duties from 21 March 2015 to 30 March 2015 inclusive “due to a medical condition” and that he “would be able to do light duties during this period” and goes on to provide that he has the capacity to lift up to 5 kilograms and to stand for up to 60 minutes and that the general practitioner had “advised him [Mr Armet] to work at his comfort limits during this period”.
The 23 March 2015 medical certificate is a standard proforma medical certificate indicating that Mr Armet “is unable to work on 23 March 2015 due to a medical condition”.
On 24 March 2015 Mr Armet went back to work and says that he provided the two medical certificates and the CT scan result to his supervisor Ms Flockton and that:
(a)he was sent back to his usual work location and duties; and
(b)he was not provided with any information or explanation about the processes and procedures linked to the 18 March 2015 incident and the management of his medical condition.
CFC says that Mr Armet only provided a medical certificate for 23 March 2015, and that medical certificate stated only that Mr Armet had a medical condition and was unable to work on 23 March 2015: Defence at [10].
Apart from his affidavit evidence providing the medical certificates Mr Armet did not provide further evidence as to how and when and to whom at CFC the medical certificates were provided, and he was not cross-examined about providing the 21 and 23 March 2015 medical certificates to CFC, and in particular whether he provided them to Ms Flockton.
Ms Flockton however gave evidence in cross-examination that:
(a)CFC were aware from 18 March 2015 that Mr Armet had a back injury;
(b)any medical certificates from Mr Armet would have come to her initially for the leave applications to be dealt with;
(c)there were restrictions on a medical certificate provided by Mr Armet that she had not initially brought to the attention of CFC’s Safety Department; and
(d)Mr Armet was told to “[w]ork within your restrictions”: Tr, 21 February 2023, pp 292-293.
Ms Flockton’s evidence on these issues was clear and she did not equivocate or dissemble about the fact that she had not noticed work restrictions on a medical certificate for Mr Armet. Equally Ms Flockton was firm that Mr Armet was told to work within his restrictions. The Court regards Ms Flockton’s evidence as reliable and believable in these respects.
Given that the work capacity restrictions appeared on the 21 March 2015 medical certificate (and that no work capacity restrictions appeared on the 23 March 2015 medical certificate) it is evident that Mr Armet provided Ms Flockton with the 21 March 2015 medical certificate (and CFC admits that it was provided with the 23 March 2015 medical certificate).
The evidence thus establishes that CFC:
(a)was aware of Mr Armet’s back injury from 18 March 2015;
(b)knew that Mr Armet’s general practitioner had imposed at least some restrictions on his work capacity from 21 March 2015; and
(c)had advised Mr Armet to work within his restrictions.
It is common ground that Mr Armet was absent from work on 20 (a Friday) and 23 (a Monday) March 2015, and that period is covered by the 21 and 23 March 2015 medical certificates.
CFC admits that Mr Armet returned to work on 24 March 2015.
On 25 March 2015 Mr Armet says that the Division Manager, Mr Kitching, came and asked him to fill out a CFC Statement Form to explain what happened on 18 March 2015. Mr Armet then completed the CFC Statement Form and returned it to Ms Flockton the same day. Mr Armet says that:
(a)in the CFC Statement Form he clearly identified the location of his injuries and pains; and
(b)he was not provided with any suitable duties or change of work location thereafter.
In the CFC Statement Form Mr Armet wrote as follows:
TO WHOM IT MAY CONCERN
On Wednesday the 18th of March, at 06.00 I was asked to join a crew to complete a task. On my arrival at the new location, it was raining. I was asked to unload a 40 FT container by hand with another colleague. No PPE, no instruction to the crew members, no assessment of the task to complete were discussed. The items were above my reach of high and I had to stand on a fragile tiny plastic milk box to get them out. The items were heavy and awkward length. I was told to “keep the pace” and “hurry up” the task. After approximately 50 boxes that I put from so high and low, I felt a strong pinch in my lower back. I thought because we didn’t have any stretches I was too cold. I started to slow down in the hope it will disappear. The person in charge moment later came over and told me if I couldn’t keep the pace shouldn’t be employed by Centurion.
The pain didn’t disappear and became worst as I could feel it moving to my right leg and foot.
Coming from another site, I realise that the task I was asked to complete wasn’t prepared safely, with poor duty of care of the employees, and unfamiliar working ethics.
Around 10.00, I decided to leave the place and went to see my supervisor, to report the injury I got.
Yours [signature] The 25/03/15
P.S. I was told the weight of each of the items were 37 KG.
CFC says that Mr Armet completed the CFC Statement Form with respect to the 18 March 2015 incident and that Mr Armet did not provide it with any medical advice recommending alternative duties, and it therefore did not direct alternative duties or change in work location at that time: Defence at [11].
The evidence of Ms Flockton which is set out at [102] above indicates, contrary to CFC’s Defence, that it was aware, or became aware, that Mr Armet’s general practitioner had suggested some restrictions on his work capacity in the 21 March 2015 medical certificate (which suggested “lighter duties”), and that Ms Flockton consequently told Mr Armet to work within his restrictions. She would not have done that if CFC had not been provided with any medical advice recommending alternative duties. The question of what work Mr Armet performed, and under what, if any, conditions it was performed, from 24 March 2015 (when he returned from the leave taken on 20 and 23 March 2015) and his final day of work on 15September 2015 (when he commenced a lengthy period of absence which culminated in the termination of his employment on 15 June 2016) remains to be determined on the available evidence.
Leave and medical certificates – March to September 2015
Mr Armet alleges that because of painkilling medication and the unchanged duties at work, namely heavy manual duties, he took sick leave on a number of occasions in order to rest his body and his mind, and that on each occasion he provided a medical certificate to CFC. Mr Armet says that his medication, as prescribed by his general practitioner for his back and foot pains, included a non-steroidal anti-inflammatory drug named Naproxen, and that he took this drug in May and June 2015. Mr Armet further alleges that he was not:
(a)given the opportunity to be placed on light duties;
(b)given the opportunity to work in a different role;
(c)provided with any medical treatment or care;
(d)informed or given any explanation regarding CFC’s policy and practice in such situations;
(e)informed or had any opportunity to make a formal inquiry or application under a workplace law;
(f)participating in any process or proceedings under workplace law; and
(g)provided with any beneficial entitlement under a workplace law.
Otherwise, for the purposes of s 344, there is no evidence of any undue influence or pressure apparent in these proceedings, and none otherwise specifically alleged.
The alleged contravention of s 344 is therefore not made out.
Section 345 - misrepresentation
Section 345(1) provides that a person must not knowingly or recklessly make a false or misleading representation about:
(a)the workplace rights of another person; or
(b)the exercise, or the effect of the exercise, of a workplace right by another person.
The false or misleading misrepresentation with which s 345(1) is concerned requires that the representation be made either recklessly or with knowledge as to its falsity, and thus contains a mental element: Construction, Forestry, Mining and Energy Union v Hadgkiss [2007] FCAFC 197; (2007) 169 FCR 151; (2007) 173 IR 360 at [11] per North, Lander and Buchanan JJ. In BHP Coal Pty Ltd v Construction, Forestry, Mining and Energy Union [2013] FCA 1291; (2013) 239 IR 363 the Federal Court found that the respondent union had breached s 345 because of an overtime policy which was in breach of the relevant enterprise agreement because it contained false or misleading representations made knowingly or recklessly concerning BHP Coal’s workplace right to require its employees to work reasonable unrostered overtime in accordance with the Enterprise Agreement.
It is not clear what Mr Armet alleges is the representation constituting the alleged contravention of s 345. If it is the matters referred to at [16]-[18] of the SOC (alleging lack of support for Mr Armet’s worker’ compensation claim) then there is no representation pleaded in those paragraphs that would suggest Mr Armet could not make a claim. Mr Armet’s allegation, that the Division Manager wished to further investigate the incident is also not such a representation.
If the representation is alleged to be that related to the payment for the first workers compensation certificate then in that respect there was no misrepresentation. The requirement to make a payment did not arise until the insurer had approved payment.
Otherwise, for the purposes of s 345, there is no evidence of any misrepresentation of a kind referred to at [189] above, and none otherwise specifically alleged.
The alleged contravention of s 345 is therefore not made out.
Section 351(1) - discrimination
Section 351(1) provides as follows:
(1)An employer must not take adverse action against a person who is an employee, or prospective employee, of the employer because of the person’s race, colour, sex, sexual orientation, breastfeeding, gender identity, intersex status, age, physical or mental disability, marital status, family or carer’s responsibilities, subjection to family and domestic violence, pregnancy, religion, political opinion, national extraction or social origin.
Section 351(1) prohibits adverse action based on traditionally statutorily proscribed grounds of discrimination as listed.
In Dahler v Australian Capital Territory (No 2) [2015] FCCA 845; (2015) 296 FLR 363 (“Dahler (No 2)”) at [18] per Judge Driver the Federal Circuit Court observed as follows:
The fact that an employer may consider or know of various circumstances or activities of the employee does not necessarily mean they constitute an operative reason for dismissal: Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500 at [43]-[45], [53]-[56], [127], [140]-[141]; Victoria v Grant [2014] FCAFC 184, at [48]-[49]. The fact that a dismissal occurs in time after a particular activity of the employee also does not necessarily mean that it constitutes an operative reason for the dismissal: Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (2014) 88 ALJR 980, at [18]-[19] per French CJ and Keifel J, [90]-[92] Gageler J
In Western Union Business Solutions (Australia) Pty Ltd v Robinson [2019] FCAFC 181; (2019) 272 FCR 547; (2019) 290 IR 414 (“Western Union”) the Full Court of the Federal Court dealt with the relationship between the manifestation of a disability and the employee’s incapacity to perform work at [138] per O’Callaghan and Thawley JJ as follows:
The present legislative context does not require the conclusion that, if a disability has an effect on capacity for work, that effect must be part of the disability. In our respectful view, the primary judge assumed that Mr Robinson’s incapacity for work was caused by an underlying mental condition and then reasoned that the incapacity therefore must be part of the mental condition such that Ms Pickles took action because of the mental condition, rather than identifying the disability and what it comprised and asking whether Ms Pickles took action because of the disability so characterised.
Section 351 does not prohibit discrimination at large but rather adverse action which is motivated by any one of the prohibited discriminatory reasons contained in s 351. It is important to observe the general protections cases are about the reasons for the adverse action and are relevantly confined to the causal relationship between the alleged adverse action and the alleged attribute or activity of an applicant: Dahler (No 2) at [23] per Judge Driver.
There is simply no evidence to support Mr Armet’s assertion that he was discriminated against for any reason relating to his race, national extraction or age or because of any injury or disability from which he suffered.
Section 355 - coercion – allocation of duties etc. to particular person
Section 355 provides as follows:
A person must not organise or take, or threaten to organise or take, any action against another person with intent to coerce the other person, or a third person, to:
(a) employ, or not employ, a particular person; or
(b) engage, or not engage, a particular independent contractor; or
(c)allocate, or not allocate, particular duties or responsibilities to a particular employee or independent contractor; or
(d)designate a particular employee or independent contractor as having, or not having, particular duties or responsibilities.
Relevantly, s 355(c)and (d) provides that a person must not organise or take or threaten to organise or take, any action against another person with intent to coerce the other person, or a third person, to:
(a)allocate or not allocate particular duties or responsibilities to a particular employee or independent contractor: s 355(c); or
(b)designate a particular employee or independent contractor as having or not having, particular duties or responsibilities: s 355(d).
The law with respect to intent to coerce is set out above at [167]-[170].
In relation to s 355 in Fair Work Ombudsman v National Union of Workers [2019] FCA 1826 (“NUW”) there was an admitted single contravention of s 355(b) by the respondent union: NUW at [69] per Kerr J. The Federal Court, however, notwithstanding that admission, was not persuaded that the evidence permitted it to conclude that the essential elements of a contravention of s 355(b) had been made out: NUW at [69] per Kerr J. At NUW at [74] per Kerr J the Federal Court distinguished two cases relied on by the Fair Work Ombudsman, as follows:
The cases Mr Felman cited in support (Director of Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union (No 2) [2015] FCA 407; 234 FCR 451 and Director of Fair Work Building Inspectorate v Construction, Forestry, Mining and Energy Union (The Red and Blue Case) [2015] FCA 1125; 254 IR 200) each refer to an instance where the CFMEU brought pressure to bear on an employer to employ a particular person favoured by the union from amongst a potentially larger field of employees, with the intent that that particular person be engaged to fill a particular role. The prohibited conduct thus fell squarely within the terms of s 355(b) of the Fair Work Act, however it might be understood.
The Federal Court went on to observe: NUW at [76] per Kerr J, that:
the existence of a protective purpose cannot prevail over the text of a statute where it constricts the scope of the operation of a provision in a specific regard. In the present case the statute requires a specific intent to be proven. In my view, the specific intent provided for in s 355 must be proven and to proceed on any other basis would be inconsistent with the structure and text of the provision read as a whole.
In this case there is no evidence that any pressure was brought to bear by a third party on CFC to:
(a)allocate or not allocate particular duties or responsibilities to Mr Armet: s 355(c); or
(b)designate a particular employee as having or not having, particular duties or responsibilities: s 355(d).
Further there is no evidence of any coercion. Mr Armet’s claim of contravention of s 355 is simply not made out.
Mr Armet’s also appears to rely upon s 145A in relation to the alleged s 355 contravention.
Section 145A provides as follows:
(1)Without limiting paragraph 139(1)(j), a modern award must include a term that:
(a)requires the employer to consult employees about a change to their regular roster or ordinary hours of work; and
(b)allows for the representation of those employees for the purposes of that consultation.
(2) The term must require the employer:
(a) to provide information to the employees about the change; and
(b)to invite the employees to give their views about the impact of the change (including any impact in relation to their family or caring responsibilities); and
(c)to consider any views about the impact of the change that are given by the employees.
In Re Consultation clause in modern awards [2013] FWCFB 10165; (2013) 238 IR 282 (“Consultation – Modern Awards”) a Full Bench of the FWC dealt with the insertion of a relevant term as to consultation on the specified matters in all modern awards, and in so doing at [31]-[32] per Ross P, Watson SDP and Wilson C observed of the right to be consulted to be established into a modern award as follows (footnotes omitted):
[31]The right to be consulted is a substantive right, it is not to be treated perfunctorily or as a mere formality. Inherent in the obligation to consult is the requirement to provide a genuine opportunity for the affected party to express a view about a proposed change in order to seek to persuade the decision maker to adopt a different course of action. As Logan J observed in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v QR Ltd (QR) [[2010] FCA 591]:
… A key element of that content [of an obligation to consult] is that the party to be consulted be given notice of the subject upon which that party’s views are being sought before any final decision is made or course of action embarked upon. Another is that while the word always carries with it a consequential requirement for the affording of a meaningful opportunity to that party to present those views. What will constitute such an opportunity will vary according the nature and circumstances of the case. In other words, what will amount to “consultation” has about it an inherent flexibility. Finally, a right to be consulted, though a valuable right, is not a right of veto.
To elaborate further on the ordinary meaning and import of a requirement to “consult” may be to create an impression that it admits of difficulties of interpretation and understanding. It does not. Everything that it carries with it might be summed up in this way. There is a difference between saying to someone who may be affected by a proposed decision or course of action, even, perhaps, with detailed elaboration, “this is what is going to be done” and saying to that person “I’m thinking of doing this; what have you got to say about that ?”. Only in the latter case is there “consultation”
[32]We respectfully adopt his Honour’s observations. Similar to the obligation to accord a person procedural fairness, the precise content of an obligation to consult will depend on the context. The extent and significance of a proposed change, in terms of its impact on the affected employees, will have a bearing on the extent of the opportunity to be provided. Hence a change of limited duration to meet unexpected circumstances may mean that the opportunity for affected employees to express their views may be more limited than would be the case in circumstances where the proposed change is significant and permanent. It is also relevant to note that while the right to be consulted is a substantive right, it does not confer a power of veto. Consultation does not amount to joint decision making.
There is therefore no doubt that Mr Armet has a right to be consulted pursuant to any relevant award term in relation to the matters referred to in s 145A, namely, a change to a regular roster or a change to ordinary hours of work.
If, as appears to be the case, the claim in respect of the matters the subject of s 145A are made as part of the s 355 claim, then the claim cannot be made out because:
(a)first, s 355 relates to:
(i)the allocation or non-allocation of particular duties or responsibilities to Mr Armet: s 355(c); and
(ii)the designation of a particular employee as having or not having, particular duties or responsibilities: s 355(d),
and those are not matters which are the subject of s 145A; and
(b)second, and in any event, the matters the subject of s 145A do not require the intent to coerce which is an essential requirement of s 355.
Even if the s 145A claim (which was not referred to in the SOC) is treated as a stand-alone claim it cannot succeed because:
(a)the relevant award which establishes the right is not in evidence; and
(b)s 145A is concerned with “a change to … [an employee’s] regular roster or ordinary hours of work” and therefore any award clause made in reliance upon the s 145A power must be restricted to those matters. There is no evidence in these proceedings that Mr Armet’s roster ever changed or that his ordinary hours of work ever changed, and therefore any right established by an award clause reliant on the s 145A power would not have been engaged.
It follows that:
(a)the alleged contravention of s 355 (whether inclusive of the alleged contravention of s 145A or not) is not made out; and
(b)no stand-alone contravention of s 145A is made out.
APPLICATION TO RE-OPEN PROCEEDINGS AND TO FILE FURTHER MATERIALS
Directions hearing – 7 July 2023
On 7 July 2023 the parties appeared at a directions hearing in relation to a proposed Application in a Proceeding (“Proposed AIP”) and affidavits in support (“Supporting Affidavits”) attempted to be filed by Mr Armet on 26 June 2023.
The orders sought by Mr Armet in the Proposed AIP are:
1.Acceptance of documents and statements regarding to the findings following examinations of Transcripts of proceedings related to the communications between Barrister Robert FRENCH and witnesses Ms Fran Flockton & Mr Sam Uren
2.Acceptance of documents provided to Federal Court Perth Registry on 27 April 2023 (by email) at 8.21 PM
3.Acceptance of documents provided by the Applicant at the hearings - Day 5 on 2 May 2023, as part of cross examination of Mr Sam Uren.
The Supporting Affidavit had annexed to it approximately 190 pages of attachments.
At the 7 July 2023 directions hearing the Court made the following orders:
1.The applicant file and serve written submissions by 21 July 2023 in relation to whether the Court should:
a)accept the proposed Application in a Proceeding and any affidavits or documents in support thereof; and
b)allow the applicant to reopen his case to any extent based upon the proposed Application in a Proceeding.
2.The respondent file and serve any written submissions in reply by 4 August 2023.
3. The matter be determined on the basis of the written submissions.
4. Costs reserved.
Mr Armet’s materials and submissions
Mr Armet submitted that:
(a)he did not have access to “what was written in black and white in the transcript during the trial. So I had access after the trial and it’s to being to your attention some facts and evidence related to … what is found in the transcript”;
(b)he did not understand what was talked about in English clearly but could read it vividly and then could understand much better what was going on and that this corroborated his action towards CFC;
(c)some of the documents were tendered with the Court but some were not tendered with the Court because there was not enough time or Mr Armet did not know what was happening and did not remember what happened;
(d)he definitely did not have access to the transcripts of the hearing between the hearing days in February 2023 and May 2023;
(e)the “acceptance of documents provided by Mr Armet at hearings as part of the cross-examination of Mr Uren”, refers to extracts of the transcript of earlier WorkCover workers compensation arbitration proceedings where “these people speak, talk, and commit perjuries or false information and so on”;
(f)there were some documents referring to CFC and he provided these to the Court because there had not been time to take these pieces as a matter of interest.
CFC’s submissions
CFC submitted that:
(a)the Proposed AIP and Supporting Affidavits are an abuse of process and should not be accepted, and the allegations made by Mr Armet are scandalous and without basis;
(b)to the extent the Proposed AIP and Supporting Affidavits contain any evidence Mr Armet is seeking to reopen his case;
(c)Mr Armet had attempted to file similar materials on or about 28 April 2023, and that affidavit was not allowed in as it was effectively submission and is the same as what is now before the Court;
(d)in particular there were similar allegations against Mr French in relation to his examination of Mr Uren in these materials as were made about him in the materials previously attempted to be filed by Mr Armet;
(e)the fact that Mr Armet had additional opportunity to consider the transcript and had thought of additional things post-hearing is immaterial and is simply “too late”;
(f)there was nothing in the Proposed AIP or Supporting Affidavits that would satisfy the requirements for Mr Armet to reopen his case and the leave to do so should be dismissed.
Consideration – application to re-open
In determining whether or not to re-open a case and allow further evidence to be led the Court has regard to certain principles which are set out in the Federal Court judgment in Ample Source International Limited (BVICN 1575638)v Bonython Metals Group Pty Limited ACN 141 257 294 & Ors(No. 6) [2011] FCA 1484; (2011) 285 ALR 488 at [355] per Robertson J (“Ample Source”). Part of that test is the relevance of the proposed material: Ample Source at [355] per Robertson J, where the Federal Court said as follows:
Leave to reopen needs to be considered by reference to the Full Court decision in Londish v Gulf Pacific Pty Ltd (1993) 45 FCR 128 at 138–139. The threshold is lower than that which applies after the entry of judgment. If there was no deliberate decision not to call material, the primary consideration is embarrassment or prejudice to the other side: Smith v New South Wales Bar Association (No 2) (1992) 176 CLR 256 at 266-267. The essential principle is that the Court should do justice as between the parties. Within that concept, of course, must be the cogency or relevance of the material sought to be adduced on the application to reopen. There is reference in Londish to applications to amend and therefore the approach in Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 must now inform the principle.
The Court further observes that:
(a)the decision to re-open a case and allow further evidence is a discretionary one: Australian Securities and Investments Commission v Rich [2006] NSWSC 826; (2006) 235 ALR 587; (2006) 58 ACSR 414 at [18] per Austin J (“Rich”);
(b)in Rich the New South Wales Supreme Court said the following factors are relevant to the exercise of a court’s discretion to re-open:
(i)the degree of relevance and the probative value of the further evidence sought to be adduced, and its potential to involve an undue waste of time;
(ii)the nature of the proceeding;
(iii)the extent to which Mr Atkinson embarked upon calling the further evidence during the hearing;
(iv)whether calling the further evidence ought reasonably to have been foreseen;
(v)what explanation is offered by Mr Atkinson for not having called the further evidence during the hearing;
(vi)the consideration of fairness that a respondent is entitled to know all of the evidence it has to meet in taking forensic decisions as to cross-examination and the nature and extent of the evidence he will himself adduce on the matters in question; and
(vii)the prejudice to a respondent in terms of delay in the completion of the proceeding (and the consequential costs);
Rich at [18] per Austin J; and
(c)regard must also be had to the public interest in the finality of litigation: Autodesk Inc v Dyason (No. 2) [1993] HCA 6; (1993) 176 CLR 300; (1993) 67 ALJR 270; (1993) 111 ALR 385; (1993) 25 IPR 33; CLR at 302-303 per Mason CJ.
It is necessary to apply the above principles to the material sought to be submitted in relation to the re-opening of the case.
In the further materials sought to be relied on Mr Armet raises issues as to alleged collusion and corruption involving the judiciary (although not specifically mentioning any particular Court or current judicial officer), CFC and the Western Australian State Government, and unparticularised allegations of, for example, bribery, and “biased participation in trials and judgements as a result of politicisation of the judiciary, the party loyalties of judges or all types of judicial patronage”, and “cover-ups” of “human rights violations and fundamental freedoms abuses”. Similar allegations and materials were struck out of earlier affidavits: see the Schedule to Armet (No 4), and the present application therefore entails, to some degree, an abuse of process. More critically, the allegations are just that, allegations, and are not supported by any evidence, or any cogent or relevant evidence, and are not relevant to the matters at issue in the current proceedings.
There are further expansive materials sought to be relied upon which relate to the “independence of the judiciary” and refer to the “United Nations Basic Principles on the Independence of the Judiciary” and the “Bangalore Principles of Judicial Conduct”, and in this respect complain of the conduct of WorkCover (which is not a judicial body) and of the “close links” between the State Government and CFC. Again, and even if true, these are matters that are not relevant to the matters at issue in the current proceedings.
The Court is criticised in the materials for not accepting evidence of an alleged investigation and prosecution of CFC “following a deadly accident involving 2 employees in 2017”, and other subsequent investigations, but again those materials are not in any way relevant to Mr Armet’s back injury complaints arising from events in March 2015 to September 2015.
Previous decisions of WorkCover and the District Court involving Mr Armet’s injuries suffered at CFC are complained about and alleged to be “totally subordinated to political considerations and ideological beliefs” and allegations are raised about conflicts of interest on the part of WorkCover, mining and gas corporations, and insurers. Once again, these materials and submissions are not in any way relevant to the matters in issue in these proceedings.
Mr Armet also seeks to rely on material related to the following:
•Evidence of conflict when matter involves the State’s oldest chamber (Francis Burt Chambers) involved in all of the migrant worker’s action and application.
•Evidence of a national, ethnic, linguistic and cultural hegemonic group involved in the administration of justice.
•Evidence of barrister’s parents, both graduated of University of Western Australia (UWA), both former judges, at High Court and District Court, one former barrister at Francis Burt Chambers and one being current chancellor of UWA
•Evidence of courts, law firms and single chambers involved in the injured migrant worker’s cases, all located and interconnected within a radius of 1 kilometre, with the Court of Appeal as the epicentre.
None of the materials and generalised allegations made by Mr Armet evidence any recognisable conflict of interest relevant to these proceedings, and no arguable or even potentially discernible conflict of interest relevant to Counsel for CFC, Mr French, or the presently presiding Judge of the Court, is properly made or particularised or supported by any admissible evidence. They are also irrelevant to these particular proceedings. The references to Mr French’s parents (which are further repeated in the materials sought to be submitted), both of whom are former highly esteemed judicial officers, is grossly unfair to them and to Mr French, and otherwise egregiously scandalous (in the legal sense of that latter word: see Cavill Business Solutions Pty Ltd v Jackson [2005] WASC 138 at [25] per Hasluck J; Zaghloul v Woodside Energy Ltd (No 2) [2013] FCA 947 at [52]-[53] per Gilmour J; MacPherson v Kerr; Ex Parte Lewis [1893] VicLawRp 9; (1893) 19 VLR 23 at [25] per Hodges J).
It suffices to observe that the very serious allegations made in relation to Mr French’s conduct in the hearing (which do not bear repeating), and in relation to Ms Flockton and Mr Uren and the giving of their evidence (for example that the former committed criminal acts in giving evidence and that the latter was essentially coached as to his evidence), are not supported by any admissible evidence, and have no proper basis in the materials from and conduct of the six days of hearing in February and May 2023, and are also scandalous.
To the extent that Mr Armet now says that he ought to be allowed to file further materials because he did not understand what was said at hearing and that he needed to read the transcript to understand it, the Court notes that in Armet (No 2) at [40] per Judge Lucev the Court observed that:
Whilst it is evident that English is not Mr Armet’s first language he professes to be “fluent [in] both spoken and written” English: Affidavit of Stephane Armet, sworn 8 April 2021, page 4 of the Annexures. Mr Armet has not requested an interpreter be used in the proceedings.
Armet (No 2) was delivered on 12 August 2022, and there was no subsequent request by Mr Armet for an interpreter for a subsequent directions hearings on 11 November 2022 or the six days of hearing in February and May 2023. The Court also notes that Mr Armet:
(a)cross-examined, in English, CFC’s two witnesses for a total of approximately three days and made submissions for more than half a day at the final hearing; and
(b)is, as became apparent in the course of this hearing and this application to re-open, a not inexperienced participant in litigation concerning his period of employment at CFC, and has been involved in proceedings in relation thereto both represented and self-represented before at least WorkCover, the District Court of Western Australia, and the Supreme Court of Western Australia Court of Appeal.
The Court is not prepared to re-open these proceedings to allow the admission of the further materials, including affidavits, sought to be put before the Court. As will be evident from the foregoing the materials sought to be put before the Court are largely irrelevant, often scandalous, and some of the materials have previously been struck out as inadmissible. The nature of this Court’s task in these proceedings is the relatively prosaic one of determining whether or not there are contraventions of Pt 3-1. The further materials now sought to be relied upon do not assist with that task. Although it is not apparent that there is any relevant material in the further materials the Court is also concerned that, if there is such material, further hearings may, in fairness to CFC, be required. The substantive hearing of this matter was originally listed for two days, was extended to three days with long sitting hours: Armet (No 3), and ended up taking six days. Prior to the final hearing over six days there were seven earlier listings for directions and interlocutory matters, and a number of judgments on interlocutory issues. The incurring of further costs (especially in a primarily no costs jurisdiction) would be prejudicial to CFC. There is a public interest in the finality of litigation, and insofar as the determination of liability is concerned further days of hearing in these proceedings are neither warranted nor are they in the public interest.
In the circumstances there will be order that the oral application to file an application in a proceeding to re-open the proceedings and file further material is to be dismissed.
CONCLUSION
The Court has concluded that:
(a)Mr Armet’s oral application to file an application in a proceeding to re-open the proceedings and file further materials is to be dismissed;
(b)in relation to liability that CFC has contravened s 340(1)(a)(i) and (ii) by failing to provide light duties to Mr Armet in the period from 24 March 2015 to 15 September 2015 thereby not affording him a safe system of work and exposing him to hazards, but otherwise the originating application filed 17 March 2021 is to be dismissed;
(c)as to penalty and compensation, there will be orders for the filing of any further evidence, including any expert’s reports, and submissions, prior to a hearing on penalty and compensation; and
(d)costs, if any, will be reserved pending determination of penalty and compensation.
I certify that the preceding two hundred and thirty-five (235) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Lucev. Associate:
Dated: 17 June 2025
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