Askaro v Leading Synthetics Pty Ltd
[2014] FCCA 2081
•11 September 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
ASKARO v LEADING SYNTHETICS PTY LTD & ANOR [2014] FCCA 2081
Catchwords:
INDUSTRIAL LAW – Alleged contravention of general protections under Fair Work Act by first respondent – alleged breach of award by second respondent – allegation of adverse action against employee of contractor in contravention of s.340 of Fair Work Act 2009 – whether action by principal against employee of independent contractor is adverse action within meaning of s.342(1), item 3 of the Act – application dismissed – allegation that employer breached s.45 of the Act by failing to pay employee in accordance with the Award – held employer contravened s.45 of the Act – allegation independent contractor contravened s.550 of the Act – application dismissed.
Legislation:
Workplace Relations Act 1996, ss.182, 204, 208, 717, 720, 728, 11(1)
Fair Work Act 2009, ss.45, 340, 550
Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
Lek v Minister for Immigration (1993) 43 FCR 100
Director, Office of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2013] FCAFC 8
Victoria v Construction, Forestry, Mining and Energy Union [2013] FCAFC 160
Construction, Forestry, Mining and Energy Union v McCorkell Constructions Pty Ltd (No.2) [2013] FCA 446
City of Wanneroo v ASU (2006) 153 IR 426
Minister v Dey [191] AR 19
Logan v Otis Elevator Company Pty Ltd [2001] IRCA 1
Yorke & Anor v Lucas[1985] HCA 65
Australian Building & Construction Commissioner v Abbott (No.4) (2011) FCA 950
Briginshaw v Briginshaw[1938] HCA 34
Applicant: WALEED ASKARO
First Respondent: LEADING SYNTHETICS PTY LTD
Second Respondent: ALTON-WEST FOOTSCRAY PTY LTD
File Number: MLG 1094 of 2010
Judgment of: Judge Jones
Hearing date: 11 April 2014
Date of Last Submission: 13 June 2014
Delivered at: Melbourne
Delivered on: 11 September 2014 REPRESENTATION
Counsel for the Applicant: Ms Norton
Solicitors for the Applicant: Hughes Watson Marks Kennedy
Counsel for the First Respondent: Mr Mc Kenney
Solicitors for the First Respondent: B2B Lawyers
Counsel for the Second Respondent: Mr McNab
Solicitors for the Second Respondent: Harwood Andrews ORDERS
THE COURT DECLARES:
(1)
That the Second Respondent contravened s.182(1) of the Workplace Relations Act 1996 (Cth) by failing to pay the complainant,
Mr Waleed Askarao, the basic period rate of pay payable under the Australian Pay and Conditions Standard in accordance with clause 21.1.3, Manufacturing/Production Employee Level 3 of the Rubber, Plastic And Cablemaking Industry – General Award 1998.
(2)
That the Second Respondent contravened s.45 of the Fair Work Act 2009 (Cth) by failing to pay the complainant,
Mr Waleed Askarao, the applicable rate of pay in accordance with Schedule A of the Manufacturing and Associated Industries and Occupations Award 2010.
THE COURT ORDERS:
(3)The application by the complainant, Mr Waleed Askarao, that the first Respondent contravened s.340 of the Fair Work Act 2009 (Cth) be dismissed.
(4)The application by the complainant, Mr Waleed Askarao, that the first Respondent contravened s.728 of the Workplace Relations Act 1996 (Cth) and s.550 the Fair Work Act 2009 (Cth) be dismissed.
(5)The proceedings be adjourned for directions on 18 September 2014 at 10.00am.
FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNEMLG 1094 of 2010
WALEED ASKARO Applicant
And
LEADING SYNTHETICS PTY LTD First Respondent
ALTON-WEST FOOTSCRAY PTY LTD Second Respondent
REASONS FOR JUDGMENT
INTRODUCTION
1.Mr Waleed Askaro (“the applicant”) claims that Leading Synthetics Pty Ltd (“the first respondent”) and Alton – West Footscray Pty Ltd (“the second respondent”) have contravened the Fair Work Act 2009 (“the Act”) in the following ways:
(a)the first respondent contravened s.340 of the Act by taking adverse action against him because he exercised a workplace right;
(b)the second respondent contravened s.45 of the Act by failing to pay the applicant wages in accordance with the Rubber, Plastic And Cablemaking Industry – General Award 1998 (“the Award”); and
(c)the first respondent contravened s.45 of the Act pursuant to s.550 of the Act by reason of its involvement in the breach of the Award by the second respondent.
2.As the applicant claims that the breach of the Award occurred during the period of the applicant’s employment, from 2003 to 2010, the applicant’s claim for the breach of the Award prior to 1 July 2009 by necessity is governed by the provisions of the Workplace Relations Act 1966 (Cth) (“WR Act”).
3.Under the provisions of s.182(1) of the WR Act, the applicant was entitled to be paid a basic period rate of pay for each of his guaranteed hours provided his employment was covered by an Australian Pay and Conditions Standard (“APCS”).
4.By virtue of s.204(1) and s.208(1) of the WR Act, the applicant’s employment was covered by an APCS derived from the provision of the Award.
5.Section 728 of the WR Act provided that a person involved in the contravention of the Act was liable as an accessory.
6.Section 720 of the WR Act provided that if an employer was required by an applicable provision to pay an amount to an employee, the employee may, not later than six years after the employer was required to make the payment, sue for the amount of the payment in an eligible Court. Section 717 of the WR Act provided that an eligible Court included the Federal Magistrates Court, the predecessor of this Court, and that an applicable provision included a term of an Award.
7.On 1 July 2009 the WR Act was repealed by the provisions of the Act. In respect of breaches occurring prior to 1 July 2009, s.11(1) of Pt.3 of Schedule 2 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 provides that the WR Act continues to apply on or after 1 July 2009 in relation to conduct that occurred before that date.
8.From 1 January 2010 the Manufacturing and Associated Industries and Occupations Award 2010 (“the Modern Award”) commenced operation. In accordance with schedule A of the Modern Award, rates of pay contained in the Australian Pay and Classification Scale as derived from the Award continued operation until 1 July 2010 as a relevant minimum wage instrument. Also schedule A of the Modern Award provided for the continued application of penalty rate provisions of the Award.
9.These proceedings therefore concern alleged contraventions of the Act and the WR Act.
10.The applicant alleges contravention by the first respondent of s.340 of the Act on the basis that the first respondent took adverse action against him by notifying the applicant on 22 June 2010 that he would be transferred from nightshift to day shift for the reason, or reasons including the reason, that the applicant made a complaint to the Fair Work Ombudsman (“FWO”) on 4 June 2010.
11.The applicant alleges that the second respondent contravened s.45 of the Act by failing to pay him the rate specified under the classification level “Manufacturing/Production Employee Level 3” of the Award.
12.It was agreed that the Court first determine the question of liability by the first and second respondent in relation to the applicant’s claims. This decision, therefore, determines the applicant’s claims of contravention of s.340 and s.45 of the Act. I observe that I have considered all the evidence relating to liability and confine my consideration of the evidence adduced in the proceedings to evidence relevant to the question of liability only.
BACKGROUND
13.The following factual matters are undisputed:
(a)the applicant commenced employment with the second respondent in or around September 2003 and at all relevant times the applicant was employed by the second respondent. The payment of his wages and other entitlements were made by the second respondent to the applicant;
(b)the second respondent is a labour hire company and entered into a contract for services with the first respondent under which it supplied its employees to work at the first respondent’s premises. One such employee was the applicant;
(c)the first respondents main product is PET resin used for plastic bottles;
(d)the applicant commenced working at the first respondent’s premises in Altona as a casual labourer in or around September 2003. For the majority of his placement with the first respondent he worked night shifts in the poly section of the plant. He ceased working on or about 1 July 2010;
(e)the applicant was initially paid by the second respondent at the rate of pay specified for classification Level I of the Textile Industry Award 2000 and it’s predecessor, Textiles, Clothing, Footwear And Associated Industries Award;
(f)on 4 June 2010 the applicant lodged a complaint with the FWO against the second respondent complaining that he had been paid under the wrong Award and classification. In his complaint the applicant stated that he drove forklifts in performing his duties. The applicant was not licenced to drive a forklift;
(g)Mr Ashok Gosain, who was the plant Manager, decided to transfer the applicant from night shift to day shift and the applicant was informed of this decision by the supervisor on nightshift, Mr Kandaneara, in or around 22 June 2010;
(h)the applicant took sick leave after being informed of this decision and did not thereafter work at the first respondent’s premises;
(i)by letter dated 23 December 2010, Mr McClymont, director of the second respondent, was informed of the FWO’s determination of the applicant’s complaint.[1] The FWO found there was a contravention and that:
[1] Annexure "SMC -4" to the affidavit of Scott McClymont.
·the applicant was employed on a casual basis as a machine operator/labourer, located at leading synthetics
·the applicant’s terms and conditions of employment were governed by the Award;
·that the applicant was appropriately classified as Manufacturing/Production Employee Level 2 under the Award; and
(j)the second respondent forwarded to the FWO an amount of $2,028.90, being the underpayment assessed by reference to the difference in the amount the applicant was paid and his entitlement as a Manufacturing/Production Employee Level 2 under the Award.[2]
[2] Annexure "SMC -5" to the affidavit of Scott McClymont.
14.As to the composition of the nightshift employees working in the first respondent’s poly section, it is agreed that on any nightshift two people were present in the control room and one of those two personnel was the designated shift leader. The shift leader on shifts worked by the applicant was generally Mr Kandaneara. In addition to the two people working in the control room, there were three crew members working on the floor of the plant.
15.The first respondent, in its written submissions, stated it generally agreed with the summary set out at paragraph [10] in the applicant’s written submissions regarding nightshift work in the poly area,[3] subject to denying that Mr Gosain was aware that forklifts were being driven by unlicenced personnel. The summary of the applicant regarding the nightshift work is set out in full below (footnotes omitted):
[3] Submissions of the first Respondent on Liability at [32].
(a)Mr Gosain was responsible for occupational health and safety at the plant;
(b)the control room operators, who reported to Mr Gosain, were responsible for supervision on nightshift, although they were primarily concerned with technical matters;
(c)while Mr Gosain did not work nightshift, he was present on nightshift (at least for a time) approximately once a month, and also attended in the event of a “technical shutdown”, which happened approximately two or three times a year;
(d)there were generally three process workers on nightshift during the week;
(e)the primary duty required of process workers on nightshift (known as “bagging”) involve filling bags was plastic resin pellets, tying and labelling the bags, moving the bags (which weighed approximately one tonne) onto a pallet, and then transporting the pallet via forklift to a storage area;
(f)at the beginning of each nightshift the process workers would be assigned a (quota) of bags to be filled by the end of the shift. A standard quota was approximately 80 bags per shift. The quota was generally determined by Mr Gosain at the beginning of each day;
(g)each shift the process workers would allocate duties as between themselves. If three process workers are rostered on, two would be responsible for bagging and the third would be responsible for “housekeeping” duties inside the plant. The three process workers would rotate duties on a nightly basis, so that each process worker would generally be on bagging two out of every three nights;
(h)the two process workers on bagging would each be responsible for half the assigned quota – that is, they would each be responsible for filling and transporting half the bags, from beginning to end;
(i)the arrangement described in (g) and (h) above was in place when Mr Askaro commenced work in the Poly area in 2003; and
(j)in addition to transporting bags filled with plastic resin chips, other process worker duties requiring the use of a forklift ,included transporting empty drums or bags, bags of waste polymer, and bags of chemicals.
EVIDENCE
16.The applicant relied on his four affidavits filed on 2 May 2011, 16 July 2012, 3 October 2013 and 28 March 2014. He was cross examined. The applicant issued subpoenas to Mr Salim Benyamin, Mr Sun Thanh Huang and Mr Abas Sayed to attend and give evidence. They were cross-examined.
17.The first respondent relied on three affidavits sworn by Mr Ashok Gosain and filed on 14 June 2011, 3 September 2012 and 28 March 2014. Mr Gosain was cross-examined.
18.The second respondent relied on two affidavits sworn by
Mr Mc Clymont and filed on 14 June 2011 and 6 August 2012.
Mr Mc Clymont was cross examined.19.The applicant and Mr Syed were issued Certificates under s.128 of the Evidence Act 1995 (Cth) in relation to their evidence regarding the use of forklifts.
20.All witnesses gave their evidence in a straightforward and credible way. The applicant, in particular, was impressive. He made concessions where appropriate and his evidence was consistent. I note that the evidence of the applicant, Mr Syed and Mr Benyamin was consistent in respect of the work performed by crew members on the nightshift in the Poly section of the respondent’s premises at Altona. The effect was a body of cogent and consistent evidence.
21.The applicant’s evidence was that:
·when he commenced employment he was given a three day induction by Mr Gosain. He did not have a forklift licence when he commenced working at the first respondent’s plant and was not required by the first respondent to obtain a forklift licence. He agreed he was never instructed by Mr Gosain to use a forklift in the performance of his duties; [4]
[4] Affidavit of Waleed Askaro, filed 16 July 2012 at [6], [9] to [10]; Transcript of hearing, 10 April 2014, T24.
·when he commenced his placement at the first respondent’s plant on the night shift, he was told by Mr Kandaneara, his supervisor, that he had to use a forklift as part of his normal duties. He was taught by Mr Abbas Syed another operator how to drive the forklift. Mr Kandaneara saw him learning to drive the forklift and said to him words to the effect “ keep trying and you will get better”[5];
[5] Transcript of hearing, 10 April 2014, T 13; Transcript of hearing, 11 April 2014, T69, Affidavit of Waleed Askaro, filed 16 July 2012 at [16] to [17]; Affidavit of Waleed Askaro , filed 3 October 2013 at [4 ].
·at the beginning of each shift the crew members would decide who would undertake the bagging duties and who would perform the housekeeping duties in the factory. Two of the crew members undertook the bagging, and both of these crew members drove a forklift to move the filled bags to a storage area. The roles of bagging and housekeeping rotated through the three crew members over the week;[6]
[6] Affidavit of Waleed Askaro, filed 16 July 2012 at [21] to [24].
·it was not uncommon for the two crew members undertaking the bagging role not to have a forklift driving licence;[7]
[7] Affidavit of Waleed Askaro , filed 3 October 2013 at [7] to [8]; Transcript of hearing, 10 April 2014, T14.
·Mr Kandaneara saw him driving the fork lift on many occasions and never instructed him not to drive the forklift. Mr Kandaneara asked him to do specific jobs that required the use of a forklift; such as, changing large nitrogen cylinders, removing heavy waste bins or industrial bins and transporting chemicals from the outside storage area into the plant. There was never a discussion by the first respondent about whether he needed a licence for driving a forklift;[8]
[8] Ibid at [28] to [30]; Transcript of hearing, 10 April 2014, T60; Affidavit of Waleed Askaro , filed 3 October 2013 at [5].
·the arrangements made by the crew, including the driving of the forklifts, was one that did not involve the management, it was a decision made amongst the employees. He agreed no one from management told him to drive the forklift.[9] In 2009, during a technical breakdown, Mr Gosain asked him to do a job that required him to use a forklift. He was asked to continuously remove chips from a silo, meaning when 500 kilo bags were filled they had to be moved elsewhere. Mr Gosain would have seen him drive a forklift on this occasion;[10]
[9] Transcript of hearing, 11 April 2014, T 61, T67.
[10] Transcript of hearing, 10 April 2014, T 12Transcript of hearing, 11 April 2014, T70.
·from the commencement of his time with the first respondent he expressed his concern about driving a forklift without a licence but he was told that if he didn’t drive forklift that he wouldn’t do the job. He didn’t want to risk his job. He did not take steps to obtain a forklift licence nor did he tell Mr Gosain that he would not drive forklift;[11]
[11] Transcript of hearing, 10 April 2014, T15, T16,T21.
·his two children are autistic. As they have difficulty sleeping at night his wife cares for them during the night. He cares for the children during the day which involves various appointments with their doctor and speech pathologist. The caring is a hands-on role because of their special needs;[12]
[12] Transcript of hearing, 10 April 2014, T8.
·in mid- 2008, he raised the issue about pay with Mr Gosain telling him that he had two autistic children and that it was unfair there were different rates of pay. He told Mr Gosain he needed the money to help with the increased costs associated with the care and special needs of his two children;[13]
[13] Affidavit of Waleed Askaro, filed 16 July 2012 at [53] to [54].
·in mid 2009 he spoke with Mr Gosain’s assistant, Lucito, during a technical shutdown. Lucito had asked him if he could work a day shift. He informed him that he was unable to do so because of his personal circumstances he was required to care for his two children, who had been recently diagnosed with autism, during the day;[14]
[14] Affidavit of Waleed Askaro , filed 3 October 2013 at [11].
·in or about October or November 2009 he met with Mr Gosain to request a review of his rate of pay and asked that he be paid at the same rate as Mr Syed as they were performing the same work. He told Mr Gosain that he was experiencing financial difficulty because of his personal circumstances;[15]
[15] Ibid.
·when he was notified in June 2010 that he would be transferred to the day shift, he took leave, as he was unable to work day shift because of his family responsibilities. He stated that the reason he was given for the transfer to dayshift was his unlicenced use of a forklift. He asked Mr Gosain to reconsider his decision and was informed that he would need to attend work on the day shift. He did not attend work on 1 July 2010 as he was unable to leave his children. A replacement for his position on the nightshift was provided by the second respondent;[16]
[16] Affidavit of Waleed Askaro, filed 16 July 2012 Ibid at [93] to [95], [117].
22.The applicant agreed, in cross examination that the following tasks[17] were performed by the crew on nightshift when performing the job of bagging:[18]
[17] Affidavit of Ashok Gosain filed 3 September 2012 at [3].
[18] Transcript of hearing, 10 April 2014, T48 to T52.
(a)to tie a bag onto a clamp;
(b)hook the bag onto a machine;
(c)place a pallet underneath the bag;
(d)place cardboard on top of the pallet;
(e)place a label in the bag;
(f)press the start button on machine panel. The machine fills the bag with pellets;
(g)unclamp the bag after the machine has automatically unhooked the bag;
(h)tie the bag with a rope;
(i)observe the bag moving along the conveyor belt;
(j)remove the bag from the conveyor belt by transporting the bag using a forklift to a storage area.
23.The applicant agreed that the work of bagging was routine work. He agreed that the work of bagging could be arranged so that one person would put the bag on the machine for it to fill up and another person could shift the bag to storage provided there was someone licenced to drive a forklift.[19]
[19] Transcript of hearing, 11 April 2014, T65.
24.Mr Salim Benyamin’s evidence was that:
·he worked at the first respondent’s Altona plant on the nightshift in the Poly section with the applicant from 2004 to around July 2005. His job in the Poly Department as a process worker involved cleaning, bagging, driving a forklift, operating machines. The supervisor at the time was Mr Kandaneara; [20]
[20] Transcript of hearing, 9 April 2014, T28, T30, T37.
·he drove a forklift on nightshift around about 33% of the time as the other crew members would also drive a forklift. The applicant was one of the crew members. Generally, the two crew members doing the bagging would drive the forklift on a shift. Sometimes the crew member performing the inside job also used a forklift; for example, to move some drums or empty pallets. On these occasions all three crew members would be using a forklift. The arrangement amongst the nightshift crew members, that they would rotate the jobs of bagging and housecleaning was an arrangement reached by the crew members without the involvement of management from the first respondent;[21]
[21] Ibid, T29, T40.
·he could not have done his job without driving a forklift. He has had a forklift licence since 2000. He undertook his training for the fork lift licence at a TAFE College. The duration of the course was around five days;[22]
[22] Ibid T33, T35.
·neither his supervisor nor Mr Gosain asked him whether he had a forklift licence before 2010;[23]
[23] Ibid T32.
·he saw the applicant drive a forklift. He did not see the applicant drive a forklift when Mr Gosain was present;[24]
[24] Ibid T34.
25. Mr Sun Thanh Huang’s evidence was that:·he worked as a control room operator in the control room of the first respondent’s Altona plant on their nightshift in the Poly section from around 2003/2004 to 2006;[25]
[25] Ibid T43 to T44.
·during the night shift the two control room operators took turns to walk through the plant to ensure that everything was operating smoothly. It was not the responsibility of control room operators to supervise the work of the crew members; [26]
[26] Ibid T44, T51.
·the control room operators set the target number of bags to be filled in the nightshift (following a daily targets set by Mr Gosain in the morning). The three crew members on the nightshift organised the jobs they performed amongst themselves to meet the target. There was no direction from management about how the work was to be organised;[27]
[27] Ibid T45, T53.
·it was not possible to do the job of bagging without the use of a forklift and it was an expectation that all nightshift workers would be available to do bagging. This job comprised the majority of the work of a nightshift operator;[28]
[28] Ibid T46.
·the normal arrangement of the crew members was to have one person out in the bagging area outside the plant while a second member was in the tearoom resting up and the third member walking around the plant doing the remaining jobs;[29]
[29] Ibid T52.
·no information was provided to him at the start of each nightshift regarding operators who had a valid forklift licence. Other than one machine operator, he was not aware whether any of the nightshift workers had a forklift licence. He did not receive any instruction from Mr Gosain or other person from the first respondent that only licenced drivers should drive a forklift. It was not part of his duties to check whether the machine operators had forklift licences. Mr Benyamin worked on a nightshift whilst he was working in the control room. He was not aware whether Mr Benyamin had a valid forklift licence.[30]
[30] Ibid T47 to T49.
26. Mr Abas Sayed’s evidence was that:
·he worked on the nightshift as a floor/machine operator at the respondent’s Altona plant in the Poly Department with the applicant for about two years. Mr Kandaneara was in the control room during that time;[31]
[31] Ibid T56 to T57.
·the supervisor would inform the crew members of the quota of bags to be filled at the beginning of the shift. The crew members then allocated the duties required to fill the quota of bags amongst themselves. Two crew members would do the bagging and the other member would do the inside work (housekeeping). The crew members undertaking the bagging work followed the process from the beginning to the end; that is, the filling of the bag and its transportation to the storage area. The crew members doing the bagging were required to drive the forklift to transport the bag. There was no involvement from management in the arrangement of the tasks performed by the crew members on nightshift;[32]
[32] Ibid T57 to T59, T62, T69.
·during the nightshifts he worked on, the applicant would drive a forklift just as he did;[33]
[33] Ibid T64.
·he first obtained a forklift licence in or around 10 August 2010. He undertook training that took three days to obtain a licence. Prior to that he drove forklifts during the night shifts without a licence. He was taught how to use a forklift on-the-job;[34]
[34] Ibid T60, T62, T72.
·after the applicant stopped working at the first respondent, there was an instruction given that only persons with a forklift licence could drive the forklift. Before that there was no such restriction. He was not told not to drive a forklift without a licence. He did not tell anyone from the first respondent that he was driving a forklift without a licence; [35]
[35] Ibid T61, T63.
·Mr Gosain was present in the Poly section when the applicant was driving a forklift. This was on a day or afternoon shift when the applicant was called in to do the bagging to clear the silo as the line was blocked;[36]
[36] Ibid T64, T74.
·he heard Mr Gosain tell people, when WorkSafe came to the client, that if they don’t have a licence don’t sit on a forklift or drive;[37]and
[37] Ibid T62.
·after the applicant stopped working for the first respondent, Mr Gosain asked him to work on nightshift to replace the applicant. Mr Gosain did not ask whether he had a forklift licence.[38]
[38] Ibid T65 to T66.
27.Mr Gosian’s evidence was that:
·during the nightshift, two people were present in the control room with one being designated a shift leader. The shift leader on the shifts worked by the applicant was generally Mr Kandaneara who reported to him. In addition, there were three people on the floor to perform manual tasks and reported to the shift leader. The applicant was one of three personnel on the floor. Two personnel on the floor would ordinarily hold forklift licences to enable them to drive a forklift. As there were three people on the floor, only one or at most two would need to drive a forklift in order to perform the tasks required;[39]
[39] Affidavit of Ashok Gosain filed 3 September 2012 at [3].
·as plant manager for the first respondent he worked during the day shift but had occasion to observe the nightshift staff approximately once a month;
·prior to June 2010 he was not advised that any unauthorised use of forklift was occurring or that the applicant was driving a forklift. He had never seen the applicant drive the forklift on any of the occasions (around 84 times in total) he had attended the plant during the nightshift. [40]
[40] Transcript of hearing, 11 April 2014, T 35.
·He first became aware that the applicant was driving a forklift in mid June 2010, when he was informed by Mr McClymont, director of the second respondent, about the applicant’s complaint to the FWO. He said Mr McClymont told him that in making his complaint the applicant had alleged that he drove a forklift as part of this work. He formed the view that the use of a forklift by the applicant without a licence or permission to do so was a serious safety issue. Consequently, he arranged for the applicant’s shift to be changed from nightshift to day shift to enable him to monitor his work more closely and to ensure that no unauthorised use of a forklift occurred any further;[41]
[41] Ibid at [4].
·the applicant was not directed or instructed by him or as far as he was aware, after making enquiries, any other representative of the first respondent, to drive a forklift as part of his work.[42] He conceded that he may not have made enquiries of Mr Kandaneara. He said a subordinate and subordinates can always give wrong instructions. He said that, after the applicant made his complaint to FWO, he gave clear instructions to employees at the plant that anyone without a forklift licence was not to drive forklifts;[43]
[42] Ibid.
[43] Transcript of hearing, 11 April 2014, T32.
·he disagreed with Mr Huang’s evidence, that a person would be unable to do nightshift if they were not a capable operator of a forklift. He said that if a person with a forklift licence rostered for the nightshift failed to turn up he would either postpone bagging on that shift to another shift or allocate an employee from the dispatch department who had a forklift licence to that particular shift;[44]
[44] Ibid T5.
·he disagreed with Mr Syed’s evidence, that all machine operators performed the same duty regardless of the qualifications;[45]
[45] Ibid T6.
·he did not recall having told the applicant to perform any operation which required a forklift to be used; [46]
[46] Ibid.
·a person who is employed to drive a forklift must be paid a rate of pay in accordance this Level 3 of the classification structure of the Award;[47]
[47] Ibid T10.
·he denied saying on occasions when WorkSafe inspected the plant that only people with forklift licences should drive a forklift. He stated that personnel using forklifts were advised to drive carefully and not to do anything wrong;[48]
[48] Ibid T11, T36.
·he agreed that most of the training of the night shift operators happened on the factory floor;[49]
[49] Ibid T13.
·he did not recall if Mr Lucito had informed him about the applicant’ s family responsibilities and its effect on his capacity to work day shift;[50]
[50] Ibid T17.
·he denied that the applicant had informed him in October or November 2009 about his family circumstances;[51]
[51] Ibid.
·he set the quota of bags to be filled at the commencement of the day but the crew members were left with the choice as to how the tasks were to be allocated amongst themselves;[52]
[52] Ibid T19, TT59.
·he said that direction was given during the induction process about what to do and what not to do, including not driving a forklift without a licence;[53]
[53] Ibid T20.
·he was aware that the general practice on nightshift was that two workers would perform the bagging process and one worker would be on housekeeping and that the workers would rotate the jobs they did each night. He agreed that, the same members of the crew worked on nightshift throughout the week. He agreed that the applicant would therefore rotate through housekeeping one night and bagging two nights. He also agreed that there were duties, other than bagging, that required the use of a forklift but that these were required generally once a week; [54]
[54] Ibid T20 to T22.
·he disagreed that it would not have been possible for the crew to fill the quota on an ordinary night if only one person was driving a forklift. He stated that the operation of bagging took five minutes. The filling of the bag would take around four minutes and only in the last minute, involving the moving of the bag to the storage area, was a crew member required to drive a forklift; [55]
[55] Ibid T23.
·the first respondent was advised by the second respondent, upon making a request that a worker be assigned to the plant, which workers had a forklift licence. Control room personnel were not advised which of the crew had a forklift licence. His practice was to roster to people with a forklift licence on the nightshift;[56]
[56] Ibid T23 to T24.
·he agreed that exhibit A4, produced following a request for discovery of all records of forklift licences held by operators and labourers working in the Poly section between 1 January 2010 and 30 January 2010, disclosed that five employees held current forklift licences. He stated that the date of the licence of an operator/labourer did not mean that the person in question had not had a previous forklift licence as he only kept records of current licences;[57]
[57] Ibid T25 to T31.
·when dealing with the second respondent he nominated the workers he required and in the case of the applicant informed the second respondent that he needed a labourer. He generally requested only a labour hire or forklift driver for the dispatch section and subsequently trained the labour hire to a higher level. He never told the second respondent that the applicant was not a labourer nor that he was driving a forklift.[58]
[58] Ibid T55, 60.
28.As to the reason or reasons for his decision to transfer the applicant from nightshift today shift, Mr Gosain gave the following evidence in cross-examination:
Yes. Now, you say the reason given to him on another occasion was that he needed to move to day shift so you could better supervise him?--- Yes.
And you – it was the basis for that that you were in the factory yourself on a more regular basis during that day shift?--- And also more number of people are also available.[59]
[59] Ibid T44.
And it’s the case, isn’t it, that a reason – it might not have been the only reason – but a reason why you moved him to day shift was because he had made a complaint to the Fair Work Ombudsman?--- He was moved to the day---
It’s the “yes” or “no” answer, Mr Gosain. Was that a reason for the shift change?--- If the---
Mr Gosain, it’s “yes” or “no”?--- I don’t know what it is a ombudsman- whether it is a forklift licence or is rate. If it’s a forklift – yes – that’s one – was a reason.
I was referring to the complaint he made to the fair work ombudsman in relation to his rate of pay. Was that a--?--- The rate of pay? That was not the reason for moving him to the—
I’m not asking about “the” reason. Was it a reason?--- No[60]
[60] Ibid T47.
29.Mr Gosain’s evidence in reply about the circumstances surrounding his decision to change the shift work from night to day shift was:
--- things happen like this: soon as I became aware of that Mr Askaro has made a complaint in Fair Work Australia that he has not been paid forklift rates, so – and I found out from Waleed that he is driving a forklift and I asked him, “Do you have a licence for driving.” He says, “no,” then I say it is really dangerous for me to continue him in the nightshift and the he’s in difficult family circumstances so that’s the time I decided to bring in the day shift.[61]
[61] Ibid T48.
30.Mr Gosain agreed that the applicant was replaced on nightshift by Mr Abbas who at the time did not have a forklift licence.[62] Mr Gosain could not recall whether he told Mr Abbas not to drive the forklift if he did not have the licence but he stated “we told everyone.”[63]
[62] Ibid.
[63] Ibid T48.
31.Mr Mc Clymont’s evidence was that;
·the arrangement between the first and second respondent in relation to the provision of employees to work at the first respondent’s premises is that the first respondent specifies a particular classification of an employee it is seeking. The second respondent then provides the first respondent with an employee in that specified classification. The applicant was supplied to the first respondent as an employee in the classification of labourer. He was never advised by the first respondent that the applicant was being employed in the classification other than labourer. The first respondent advised the second respondent what Award is applicable to its site. The first respondent had advised the second respondent that the applicant was employed under the Textile Industry Award;[64]
[64] Transcript of hearing 11 April 2014, T76, T81, T82.
·the charge out rate for employees supplied to the first respondent was calculated based on the applicable rate under the Award, superannuation contributions, WorkCover costs and payroll tax costs together with a fixed dollar amount margin. As an employee progresses through the Award classification or Award rates of pay are increased, so does the charge out rate;[65]
[65] Ibid T77.
·the second respondent employed at all relevant times the applicant, Mr Abas and Mr Kandaneara;[66]
[66] Ibid T81.
·in June 2010 he was contacted by a representative of the FWO regarding the applicant’s complaint. During the telephone conversation the representative told him that the applicant had alleged that he had been driving a forklift and that he needed to do this to move bags of product. This was the first time that he was aware that the applicant had been driving a forklift;
·he arranged a meeting with Mr Gosain and Mr Deepak Dinghra (his position with the first respondent not identified). He told them that the applicant had made a complaint to FWO regarding the correct Award and his classification and that the applicant had told the FWO his duties involved using a forklift. Mr Gosain and Mr Dinghra confirmed to him that the applicant’s position was that of a labourer and that his duties included housekeeping, filling a machine with chemicals, taking samples of product to the chemical laboratory for analysis and other basic labouring tasks as required. Either Mr Gosain or Mr Dinghra told him that the applicant was not required to drive a forklift and that to the best of his knowledge the applicant did not have a forklift license. During the meeting Mr Dinghra said words to the effect that he wanted the applicant moved to day shift role so that Gosain could monitor him and ensure that he did not operate a forklift;[67]
[67] Affidavit of Scott McClymont filed 6 August 2002 at [9] to [11]; Transcript of hearing 11 April 2014, T77.
·in or around January/February 2011 the FWO conducted an on-site inspection for around two hours. Mr Gosain outlined the manufacturing process and the FWO representative was taken to the plant to show him what the applicant was doing. This included observing the bagging process. The observation was of two workers, one putting the bags up, starting the machine and letting the bag fill with another employee driving the forklift. The employee performing the bagging duties was classified as a general labourer;[68]
[68] Transcript of hearing 11 April 2014, T77 to T78.
·he never observed the duties that the applicant was performing on nightshift;[69]
[69] Ibid T79.
·the second respondent did not ask the first respondent to reimburse it for the amount of underpayment it paid to the FWO (for payment to the applicant). This was because the amount was a small amount of money, the relationship with the first respondent was worth more than that amount and the decision was made on a commercial basis that the amount would not be pursued;[70]and
·he denied that he called the applicant a troublemaker.[71]
[70] Ibid T82, T85.
[71] Ibid T83.
32.In light of the controversy between the applicant and the first respondent regarding the use of forklifts, Mr Kandaneara, the applicant’s supervisor at the time, would have been a key witness. His evidence regarding the practice on the nightshift in the Poly section in relation to the use of forklifts as well as any instructions given by him to the applicant with respect to the use of the forklift would have been significant. He was not called by either the applicant or the respondents.
33.Mr Scott Davidson, solicitor for the applicant, deposed to his unsuccessful attempts to contact Mr Kandaneara and to attend as a witness in these proceedings.[72] The applicant submits that in these circumstances no adverse inference should be drawn in respect of the applicant’s failure to call Mr Kandaneara.[73] The applicant submits, correctly, that the first respondent has failed to call Mr Kandaneara who could have given evidence on matters of controversy. He submits, that, in circumstances where the first respondent has failed to place any evidence before the Court regarding its failure to call Mr Kandaneara as a witness, the Court can and should draw an inference that Mr Kandaneara could not have given evidence favourable to the first respondent in relation to matters of controversy.
34.In Lek v Minister for Immigration (1993) 43 FCR 100 at 123- 124, Wicox J discussed the principles in Jones v Dunkel (1959) 101 CLR 298. His Honour stated at [96]:
96. Jones v Dunkel is often cited for its statements about the effect of a party failing to call a person with knowledge of the relevant facts; the matters discussed in Menzies J's second and third propositions. People sometimes overlook that these statements were made against the background of findings by all three majority judges that there was material entitling the jury to infer negligence. In that situation the defendant's failure to call Hegedus could be taken into account in determining whether the inference should in fact be drawn. The statements in Jones v Dunkel give no support to the proposition that the failure to call a witness may itself provide the basis of an adverse inference. An inference must be founded in evidence. As Menzies J said, the absence of a particular witness "cannot be used to make up any deficiency of evidence".
[72] Affidavit of Scott Davidson sworn 8 April 2014.
[73] Ghazed v GIO (NSW) (1992) 29 NSWLR 336 at 343.
35.In Director, Office of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2013] FCAFC 8, the Full Court stated at [97] that “the various inferences which may be drawn under Jones v Dunkel all turn on unexplained failure to call a witness who is in a party’s camp. Here the critical questions are whether either of the shop stewards was in the camp of CFMEU and Mr Bell and whether the failure to call them was unexplained.” It then stated at [100] to [102]:
100. In Payne v Parker [1976] 1 NSWLR 191, Glass JA gave detailed consideration to the operation of the rule in Jones v Dunkel and specifically the issue of what the circumstances were in which it might be concluded that a party had an obligation to call a witness. At 201-202, in a passage cited with apparent approval by the learned author of Cross on Evidence (JD Heydon, LexisNexis Butterworths, 8th ed at [1215]), his Honour, having considered a number of authorities, deduced the following amongst a list of nine propositions:
(6) Whether the principle can or should be applied depends upon whether the conditions for its operation exist. These conditions are three in number: (a) the missing witness would be expected to be called by one party rather than the other, (b) his evidence would elucidate a particular matter, (c) his absence is unexplained.
(7) The first condition is also described as existing where it would be natural for one party to produce the witness..., or the witness would be expected to be available to one party rather than the other..., or where the circumstances excuse one party from calling the witness, but require the other party to call him..., or where he might be regarded as in the camp of one party, so as to make it unrealistic for the other party to call him..., or where the witnesses’ knowledge may be regarded as the knowledge of one party rather than the other..., or where his absence should be regarded as adverse to the case of one party rather than the other...It has been observed that the higher the missing witness stands in the confidence of one party, the more reason there will be for thinking that his knowledge is available to that party rather than to his adversary...If the witness is equally available to both parties, for example, a police officer, the condition, generally speaking, stands unsatisfied. There is, however, some judicial opinion that this is not necessarily so...Evidence capable of satisfying this condition has been held to exist in relation to a party’s foreman...; his safety officer...; his accountant...; his treating doctor.
(References omitted.)
101.In principle, we accept that a union shop steward is, all other things being equal, a person in a relationship with his or her union sufficient, if necessary, to engage Jones v Dunkel .
102.However, in this case, Mr Rankin had retired. Where a witness has severed his or her relationship with a party, the degree to which the witness may be said to be in the camp of that party for Jones v Dunkel purposes will fluctuate with the circumstances and generally decline over time. This is because the rule in Jones v Dunkel is a principle founded in common sense: see Sagacious Legal Pty Ltd v Wesfarmers General Insurance Ltd [2011] FCAFC 53 at [78]. In some cases, it will be easy to see the witness as equally available to both parties, which view of the world may lead to the conclusion that no inference should be drawn in relation to either. This is probably the best explanation for the result in Claremont Petroleum NL v Cummings [1992] FCA 446; (1992) 110 ALR 239 at 259 per Wilcox J; see also Adeels Palace Pty Ltd v Moubarack [2009] NSWCA 29 at [98]- [100] per Giles JA, Beazley and Campbell JJA agreeing. In other cases, an on-going relationship may continue which may lead to a different outcome. “
36.Mr Kandaneara is no longer employed by the second respondent nor working at the first respondent’s premises. I am satisfied that he can be seen as a witness who is not in any party’s camp. I am not prepared to draw the adverse inference from the failure of either party to call Mr Kandaneara . However, the fact remains that the direct evidence by the applicant, Mr Benyamin and Mr Sayed on many matters of controversy remain undisputed because of the absence of
Mr Kandaneara as a witness.
Did the first respondent contravened s.340 of the Act?
37.Part 3-1 of Chp.3 of the Act provides for employee’s general protections. Division 3 of Pt 3-1 provides for the protection of workplace rights. Sections 340 to 342 of the Act are found in Div.3 of Pt 3-1 and relevantly provide:
340 Protection
(1)A person must not take adverse action against another person:
(a) because the other person:
(i) has a workplace right; or
(ii) has, or has not, exercised a workplace right; or
(iii) proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right; or
(b)to prevent the exercise of a workplace right by the other person. …
341 Meaning of workplace right
Meaning of workplace right
(1) A person has a workplace right if the person:
…
(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.
…
342 Meaning of adverse action
(1)The following table sets out circumstances in which a person takes adverse action against another person.
…………………
· Meaning of adverse action
· Item
· Column 1
· Adverse action is taken by ...
· Column 2
· if ...
· 3
· A person (the principal) who has entered into a contract for services with an independent contractor against the independent contractor, or a person employed or engaged by the independent contractor
· the principal:
(a) terminates the contract; or
(b) injures the independent contractor in relation to the terms and conditions of the contract; or
(c) alters the position of the independent contractor to the independent contractor’s prejudice; or
(d) refuses to make use of, or agree to make use of, services offered by the independent contractor; or
(e) refuses to supply, or agree to supply, goods or services to the independent contractor.
38.Section 360 of the Act provides:
For the purposes of this Part, a person takes action for a particular reason if the reasons for the action include that reason.
39.Section 361 of the Act provides:
(1) If:
(a)in an application in relation to a contravention of this Part, it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and
(b)taking that action for that reason or with that intent would constitute a contravention of this Part;
it is presumed, in proceedings arising from the application, that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise.
(2)Subsection (1) does not apply in relation to orders for an interim injunction.
40.It is for the applicant to establish that he had suffered adverse action and that he had a ‘workplace right’, it is for the respondent to establish that the reasons for the adverse action did not include a reason prohibited by s.340(1) of the Act.
41.In this case, it is not disputed that the Applicant exercised a workplace right when he made a complaint to the FWO. I am satisfied that, by making a complaint to the FWO on 4 June 2010 regarding entitlements under the applicable Award, the applicant was making a complaint to a body having the capacity under a workplace law to seek compliance with that law (the Act) or a workplace instrument (the Award): s.341(1)(c) (i).
42.There is a dispute about whether the applicant suffered adverse action within the meaning of s.342(1), Item 3. The applicant alleges he suffered adverse action when the first respondent decided to transfer him from the nightshift to day shift in or around 10 June 2010.
43.Section 342(1) of the Act set out the circumstances in which adverse action is taken by one person against another person. It does so by way of a table with two columns. The first column identifies the kind of person who may take adverse action and the kind of persons against whom adverse action may be taken. The second column identifies the kind of action or conduct engaged in by the first person against the other person which constitutes adverse action.
44.Turning first to column 1 under Item 3 of the table. At the relevant time, the applicant was a person engaged by the second respondent who had entered into a contract for services with the first respondent for the supply of persons (the first respondent’s employees) to work at the first respondent’s premises in Altona.
45.It is settled that the references to an “independent contractor” in s.342(1) apply both to an individual who offers labour directly to a principal and to a corporate independent contractor who offers labour through its employees: see state of Victoria v Construction, Forestry, Mining and Energy Union [2013] FCAFC 160, [118] – [120]. I am satisfied that the first respondent is the principal, the second respondent is a independent contractor and the applicant an employee of the independent contractor within the meaning of column 1 of Item 3.
46.The real issue is whether the action by the first respondent (the principal) in transferring the applicant from night to day shift falls within the conduct described in column 2 of Item 3.
47.The applicant relies on the conduct described in (c) of column 2, Item 3. He submits that whilst the conduct described “does not refer specifically to conduct that alters the position of an employee of an independent contractor (as opposed to the position of the independent contractor itself) to his/her prejudice, it should be understood to include such conduct.”[74]
[74] Applicant’s Submissions on Liability at [36].
48.The applicant relies on the approach adopted by his honour Justice Bromberg in Construction, Forestry, Mining and Energy Union v McCorkell Constructions Pty Ltd (No.2) [2013] FCA 446 (“McCorkell”). In McCorkell his Honour was required to determine whether the reference to “independent contractor” in items 3 and 4 of s.342(1) extended beyond an individual contractor to encompass a corporate independent contractor. His Honour found that it did. In the course of reaching his decision his honour considered the history of predecessor statutory provisions relating to independent contractors and stated as follows at [125]:
……….. Items 3 and 4 of s 342(1) go much further in guarding against the conduct of a principal which has an adverse effect on the workplace rights and industrial activities rights of employees of a contractor. It seems to me that this extended protection involves a recognition that contracting arrangements are a fertile area in which workplace rights and other protected activities are at risk of adverse action taken by a third party principal. It is likely that Items 3 and 4 were substantially directed at that mischief.
49.The applicant submits that the adoption of a narrow approach to Item 3, column 2 (c) “would have the consequence that a principal would only take adverse action against an independent contractor and its employees where it prejudicially altered the position of the independent contractor (but not where, as here, it altered the position of the employee of an independent contractor). Put another way, a principal could prejudicially alter the position of an employee with impunity, so long as in doing so it did not alter the position of the independent contract.”
50.The applicant’s submission as to the construction of Item 3, column 2(c) is not supported on a plain reading of the text contained in that column. The applicant’s proposed construction would require the Court to read into the text contained in Item 3, column 2(c), the words “or person employed by the independent contractor” after each reference to the phrase “independent contractor.” I cannot accept that the intention of Parliament was to include action by a principal which altered the position of a person employed by the independent contract to that person’s prejudice. If Parliament had sought to extend the scope of the protections under Item 3, column 2 (c) to action by the principal which altered the position of the independent contractors employee to that employees prejudice, it could have done so expressly.
51.Justice Bromberg’s observation in McCorkell at [125] was directed to the mischief created by “contracting arrangements.”
52.I find that the action referred to in Item 3, column 2(c) is action taken by the principal against the independent contract or only which may have the consequence of adversely affecting the position of the independent contractor’s employees. I concur with the applicant’s submissions that this construction of Item 3, column 2(c) does operate to exclude action taken by a principal which alters only the position of an employee of an independent contractor (such as a labour hire company) to his or her prejudice. However, this is a matter for Parliament and not the Court.
53.Consequently, I find that the first respondent did not engage in an adverse action within the meaning of s.342 of the Act. The applicant’s claim that the first respondent contravened s.340 of the Act is, therefore, dismissed.
Should the applicant be classified as a Manufacturing/Production Employee Level 3 under the Award?
54.Under Clause 21, Part 5 – classification structure - of the Award there are six Levels of Manufacturing/Production Employee. For the purpose of this decision the provisions in relation to the Manufacturing/Production Employee Level 2 and Level 3 are set out below:
21.1.2Manufacturing/Production Employee Level 2 (MP-2)
21.1.2(a)Definition
Means an employee who has completed up to three months structured training so as to enable the employee to perform work within the scope of this level.
21.1.2(b)Skills
An employee at this level performs work above and beyond the skills of an employee at MP-1 level or has completed an ATS traineeship.
21.1.2(b)(i)Works under direct supervision either individually or in a team environment.
21.1.2(b)(ii)Understands and undertakes basic quality control/assurance procedures including the ability to recognise basic quality deviation/faults.
21.1.2(c)Indicative tasks which an employee at this level may perform
21.1.2(c)(i)repetition work on automatic, semi-automatic or single purpose machines or equipment;
21.1.2(c)(ii)assembles components using basic written, spoken and/or diagrammatic instructions in an assembly environment;
21.1.2(c)(iii)ability to measure accurately using gauges and meters;
21.1.2(c)(iv)maintains records;
21.1.2(c)(v)operator fitting pneumatic tyres to rims and/or wheels;
21.1.2(c)(vi)performs basic test functions;
21.1.2(c)(vii) operates hand operated transport and lifting devices;
21.1.2(c)(viii) operate granulating or reclaiming or crumming or shredding machine;
21.1.2(c)(ix)trimming / cutting / gluing / sealing / assembling or wrapping finished goods;
21.1.2(c)(x)operator fitting solid tyres to wheels;
21.1.2(c)(xi)operates slitting and/or setting machine;
21.1.2(c)(xii) operates machinery that requires basic set up skills;
21.1.2(c)(xiii) operates automatic and manual press machines; or
21.1.2(c)(xiv) repair air bags, belts and cables, fit terminals to cables.
21.1.2(d)Promotional criteria
An employee remains at this level until they are capable of effectively performing, through assessment or appropriate certification, the tasks required of this function so as to enable them to progress to the next level as a position becomes available.
21.1.3Manufacturing/Production Employee Level 3 (MP-3)
21.1.3(a)Definition
An employee at this level performs work above and beyond the skills of an employee at MP-2 and to the level of their training for this level including appropriate certification.
21.1.3(b)Skills
21.1.3(b)(i)Is responsible for the quality of their own work subject to routine supervision.
21.1.3(b)(ii)Works under routine supervision either individually or in a team environment.
21.1.3(b)(iii) Exercises discretion within their level of skills and training.
21.1.3(c) Indicative tasks which an employee at this level may perform
21.1.3(c)(i)operates with flexibility between assembly/process stations;
21.1.3(c)(ii)operates machinery and equipment requiring the exercise of skill, knowledge and discretion beyond that of an employee at level MP-2;
21.1.3(c)(iii)basic tracing and sketching skills;
21.1.3(c)(iv)receiving, despatching, distributing, sorting, checking, packing (other than repetitive packing in a standard container or containers in which such goods are ordinarily sold), documenting and recording of goods, materials and components;
21.1.3(c)(v)basic inventory control in the context of a production process;
21.1.3(c)(vi)basic keyboard skills;
21.1.3(c)(vii) operation of mobile equipment including fork-lifts, hand trolleys, pallet trucks and overhead cranes;
21.1.3(c)(viii) ability to measure accurately using gauges and meters;
21.1.3(c)(ix)maintains records;
21.1.3(c)(x)setting and drawing kilns; or
21.1.3(c)(xi)operates mixing and milling machines where duties require set up and operating skills.
21.1.3(d)Promotional criteria
An employee remains at this level until they are capable of effectively performing, through assessment or appropriate certification, the tasks required of this function to enable them progression to the next level.
55.There are well established principles used in interpreting awards. These principles were clearly set out by Justice French (as his Honour then was) in the Federal Court of Australia in City of Wanneroo v ASU,[75] where his Honour said:[76]
[75] (2006) 153 IR 426.
[76] at [53].
The construction of an award, like that of a statute, begins with a consideration of the ordinary meaning of its words. As with the task of statutory construction regard must be paid to the context and purpose of the provision or expression being construed. Context may appear from the text of the instrument taken as a whole, its arrangement and the place in it of the provision under construction. It is not confined to the words of the relevant Act or instrument surrounding the expression to be construed. It may extend to ‘... the entire document of which it is a part or to other documents with which there is an association’. It may also include ‘... ideas that gave rise to an expression in a document from which it has been taken’ - Short v FW Hercus Pty Ltd (1993) 40 FCR 511 at 518 (Burchett J); Australian Municipal, Clerical and Services Union v Treasurer of the Commonwealth of Australia (1998) 80 IR 345 (Marshall J).
His Honour then said:[77]
[77] at [57].
It is of course necessary, in the construction of an award, to remember, as a contextual consideration, that it is an award under consideration. Its words must not be interpreted in a vacuum divorced from industrial realities - City of Wanneroo v Holmes (1989) 30 IR 362 at 378-379 and cases there cited. There is a long tradition of generous construction over a strictly literal approach where industrial awards are concerned - see eg Geo A Bond and Co Ltd (in liq) v McKenzie [1929] AR 499 at 503-4 (Street J). It may be that this means no more than that courts and tribunals will not make too much of infelicitous expression in the drafting of an award nor be astute to discern absurdity or illogicality or apparent inconsistencies. But while fractured and illogical prose may be met by a generous and liberal approach to construction, I repeat what I said in City of Wanneroo v Holmes (at 380):
Awards, whether made by consent or otherwise, should make sense according to the basic conventions of the English language. They bind the parties on pain of pecuniary penalties.
In Kucks v CSR Limited,[78] Madgwick J stated:[79]
It is trite that narrow or pedantic approaches to the interpretation of an award are misplaced. The search is for the meaning intended by the framer(s) of the document, bearing in mind that such framer(s) were likely of a practical bent of mind: they may well have been more concerned with expressing an intention in ways likely to have been understood in the context of the relevant industry and industrial relations environment than with legal niceties or jargon. Thus, for example, it is justifiable to read the award to give effect to its evident purposes, having regard to such context, despite mere inconsistencies or infelicities of expression which might tend to some other reading. And meanings which avoid inconvenience or injustice may reasonably be strained for. For reasons such as these, expressions which have been held in the case of other instruments to have been used to mean particular things may sensibly and properly be held to mean something else in the document at hand.
But the task remains one of interpreting a document produced by another or others. A court is not free to give effect to some anteriorly derived notion of what would be fair or just, regardless of what has been written into the award. Deciding what an existing award means is a process quite different from deciding, as an arbitral body does, what might fairly be put into an award. So, for example, ordinary or well-understood words are in general to be accorded their ordinary or usual meaning.
[78] (1996) 66 IR 182.
[79] at 184.
56.Turning then to the competencies required at each of the levels in the Award, it can be seen that:
·At Level MP-2, an employee is subject to “direct supervision either individually or in a team environment”;
·At Level MP-3, an employee is subject to “routine supervision either individually or in a team environment”;
·At Level MP-2, an employee undertakes “basic quality control/assurance procedures”;
·At Level MP-3, an employee is “responsible for the quality of their own work subject to routine supervision”;
·At Level MP-3, an employee will additionally “exercise discretion within their level of skills and training.”
57.The undisputed evidence is that:
·other than being informed by the supervisor, Mr Kandaneara, of the quota of bags to be filled for the night, the crew on the night shift determined themselves how the tasks necessary to achieve this quota would be undertaken and by whom;
·the crew members then performed the tasks without direction from management;
·the control room operators, including Mr Kandaneara, would walk around the plant during the night to ensure the plant operated smoothly.
58.I am satisfied that the crew members including the applicant were subject to routine supervision, were responsible for the quality of their own work subject to routine supervision and exercised discretion within their skill levels. The applicant, therefore, met the skills and competencies required of Level MP -3 under the Award.
59.As to the indicative tasks relevant to the manufacturing process under consideration:
·at Level MP - 2 an employee performs “repetition work” on machines/equipment and “assembles components” in an “assembly environment;”
·at Level MP – 3 an employee “operates with flexibility between assembly/process stations” and “operates machinery and equipment requiring the exercise of skill, knowledge and discretion beyond that of an employee at MP – 2;”
·at both Levels MP – 2 and MP – 3 employees have an ability to measure accurately using gauges and meters and maintain records;
·at Level MP – 2 an employee “operates hand operated transport and lifting devices;”
·at Level MP – 3 an employee operates “mobile equipment including forklifts, hand trolleys, pallet trucks and overhead cranes.”
60.I find on the evidence that the applicant did not perform work in an assembly environment. Although the process of “bagging” comprised the majority of the work of the night crew, the employees moved between the task of bagging and what were called “housekeeping duties.” These included measuring and feeding chemicals into machinery, operating and controlling machinery, administrative tasks including completing documentation in relation to bagging. I am satisfied the applicant performed the indicative tasks specified in clause 21.1.3(c)(i), 21.1.3(c)(ii), 21.1.3(c)(viii) and 21.1.3(c)(ix).
61.A key area of dispute in this matter is whether the applicant operated “mobile equipment” within the meaning of clause 21.1.3(c)(vii) of the Award.
62.The applicant says that he drove a forklift and that he did so on instruction from his supervisor Mr Kandaneara. He maintains that Mr Gosain on occasions instructed him to perform work that required the use of a forklift. He also says that Mr Gosain observed him driving a forklift when he attended to technical shutdowns which occurred during the night shift.
63.The second respondent submits that[80]:
[80] Outline of Submissions of the Second Respondent.
“2. The applicant makes a claim for a higher rate of pay in circumstances where:
(a)he was never instructed by the second respondent to drive a forklift;
(b)he never advised the second respondent until June 2010 that he was driving a forklift;
(c)he was never instructed by anyone in management of the first respondent to drive a forklift;
(d)he was not licensed to drive a forklift and knew that he was not permitted by law to drive a forklift;
(e)there was no necessity for him to drive a forklift;
(f)that the applicant was employed to do was part of a two-person job – one to drive a forklift to transport filled bag plastic on the other to place a bag over a shoot an entire the bag when the fate was filled. If the employees chose to perform that job was a person doing both tasks, thereby enabling the other to go for extended periods to the tea room to rest or sleep) that was a matter of their own choice and not one of direction from Alton or the second respondent.
3. In this case the applicant chose to do particular work and any driving of a forklift is not done at the employers direction. He was not trained, employed or direct to drive a forklift.”
64.The second respondent submits that an entitlement to be paid for work done or duty performed must mean that the work or duties performed at the request of the employer: Minister v Dey [191] AR 19. The respondent further submits that the work or task in question must be authorised by the employer: Logan v Otis Elevator Company Pty Ltd [2001] IRCA 1 (Otis). It submits that the claim against the second respondent ought to be dismissed on the grounds that no instruction was ever provided by Alton or Leading Synthetics to the applicant to drive a forklift as part of his ordinary duties.
65.In Otis his Honour, Justice Moore stated at [40] and [41]:
40 Another issue raised by counsel for Otis , was whether the overtime worked by the applicant (3 hours) was authorised. It is at least implicit in cl 14(b) that time worked which would attract the payment of penalty rates as overtime, has to be expressly or impliedly authorised. As noted by Macken J in White v Mrs Murphy's Country Fried Chicken Pty Ltd (1984) AR 794 at 801:
“No employee is entitled to the payment of overtime or penalty rates unless such overtime is authorised by an employer and self-authorisation of overtime by employees trusted to work alone or in responsible managerial positions has never been recognised by tribunals. Overtime under such circumstances is allowed only where it is expressly or impliedly authorised and it may be authorised by implication where the circumstances permit of no alternative.”
41 These observations have been referred to with approval in at least three later authorities: Maciver v Hilton Nursing Home Pty Ltd (supra), Wheatley v Armstrong [1995] NSWIRC 3 (Marks J) and Keft v Kameruka Estates Pty Ltd [1992] NSWIRC 16 (Bauer J). In Walkley v Dairyvale Co-operative Ltd (1972) 39 SAIR 327, Olsson J referred (at 359) to a similar principle deriving from a Western Australian decision, Caratti v Sullivan (1964) 44 WAIG 236. As to the position of employees who effectively authorise their own recall to work see Police Officers (Interpretation of Award) Case (1971) 38 SAIR 51.
66.Referring to his findings of fact, his Honour concluded:
43 There was plainly no express authorisation for the applicant to work overtime and, having regard to the findings in the above passage, it is also difficult to infer that there was implied authorisation to work overtime. However it is relatively clear that, at the time the applicant commenced working as area representative, there was an expectation that the applicant would work at least up to about 40 hours to complete his duties. While no one saw this as authorising overtime it did, impliedly, constitute an authorisation for the applicant to work up to about 40 hours. Even if the parties did not at that time view these hours as including time which would attract penalty rates as overtime, the applicant had implied approval to work them. While it is only after the event that the legal implications of authorising the working of those hours has become apparent, this approval to work those hours carries with it, in my opinion, the obligation to pay any penalty rates arising from the hours being worked. This is not a case where the implied obligation to pay overtime was said to arise under the contract: see Holland Stolte Pty Ltd v Bergamin (Southwell J, Supreme Court of Victoria, 9 July 1991, Unreported).
67. I turn now to consider whether the applicant was required by the second respondent to drive a forklift in the performance of his duties or whether the applicant was expressly or impliedly authorised to drive a forklift in the performance of his duties.
68.The proposition by the second respondent that the bagging task was a two-person job was denied by the applicant and Mr Syed. I do not accept this proposition. In any event the undisputed evidence is that the crew members on the night shift assigned the task amongst themselves. There were no directions from either their supervisor or management in relation to the performance of tasks by particular individuals working on the night shift.
69.Having considered the evidence I find that:
(a)the applicant was directed by his supervisor, Mr Kandaneara, to drive a forklift in the performance of his normal duties of bagging and in the performance of specific jobs requiring the use of a forklift;
(b)the applicant drove a forklift regularly during his rostered night shifts working for the first respondent;
(c)as the night shift supervisor, Mr Kandaneara was aware that the applicant was driving a forklift during the night shift;
(d)the applicant was not instructed by Mr Gosain (or other manager) to drive a forklift;
(e)employees working at the plant were not given a general direction by Mr Gosain not to drive forklifts unless they had a licence until in or around June 2010.
70.I find, having regard to my findings of fact, that whilst the applicant was not expressly directed or required by Mr Gosain to drive a forklift as part of his ordinary duties, he was by Mr Kandaneara. I am further satisfied that the applicant was observed on many occasions by Mr Kandaneara driving a forklift in the performance of his duties.
71.Mr Kandaneara was at all material times the applicant’s supervisor. No evidence was produced or submission was made that Mr Kandaneara acted outside his authority in the role of supervisor.
72.I am satisfied that the applicant was authorised, if not directly then impliedly, by the first respondent to drive a forklift during the night shift in a course of performing his ordinary duties with the first respondent.
73.I find that in the performance of his duties, the applicant was authorised and did drive a forklift during the time he worked at the first respondent’s premises on the night shift: cl 21.1.3(c )(vii).
74.I find therefore that, as the applicant exercised the skills and performed relevant tasks specified under Level MP-3 of the Award, he was at all material times entitled to be paid in accordance with Level MP-3 of the Award.
75.As the applicant was paid by the respondent at Level MP-2 during the course of his employment I find that the second respondent contravened the Award and consequently contravened s.182 of the WR Act and s.45 of the Act.
Was the first respondent involved in the contraventions?
Law and applicable principles
76.Section 550 of the Act (as well as its predecessor s.728 of the WR Act) provides that:
Involvement in contravention treated in same way as actual contravention
(1) A person who is involved in a contravention of a civil remedy provision is taken to have contravened that provision.
(2) A person is involved in a contravention of a civil remedy provision if, and only if, the person:
(a) has aided, abetted, counselled or procured the contravention; or
(b) has induced the contravention, whether by threats or promises or otherwise; or
(c) has been in any way, by act or omission, directly or indirectly, knowingly concerned in or party to the contravention; or
(d) has conspired with others to effect the contravention.77.In Yorke & Anor v Lucas[1985] HCA 65; (1985) 158 CLR 661(Yorke) at pp 666 and 667, the High Court held that to establish accessorial liability, a person must be a knowing participant or in other words:
·must have knowledge of the essential facts constituting the contravention;
·must be knowingly concerned in the contravention;
·must be an intentional participant in the contravention based on actual not constructive knowledge of the essential facts constituting the contravention – although constructive knowledge may be sufficient under s.728(2)(c) in cases of wilful blindness; and
·need not know that the matters in question constituted a contravention.
78.In Australian Building & Construction Commissioner v Abbott(No.4)(2011) FCA 950, Gilmour J made a number of observations in relation to accessorial liability. At [188], his Honour stated that in relation to other legislation in similar terms, that being passed after the decision of the High Court in Yorke, it must be assumed that Parliament is taken to have accepted the jurisprudence of Yorke v Lucas being applicable to the particular provision.
79.At [189] – [191], his Honour stated:
In Yorke the High Court referred to the reasons of Wilson, Deane and Dawson JJ in Giorgianni v The Queen [1985] HCA 29; (1985) 156 CLR 473 as stating what was required to establish aiding abetting etc in the criminal law (at p 475/p 665):
The necessary intent is absent if the person alleged to be a secondary participant does not know or believe that what he is assisting or encouraging is something which goes to make up the facts which constitute the commission of the relevant criminal offence. He need not recognise the criminal offence as such, but his participation must be intentionally aimed at the commission of the acts which constitute it.
In this case, proof is required for the individuals Upton, Brown, Windus and Johnson that each actually knew at the time of his acts or omissions what were the facts constituting the contravention. Constructive knowledge is insufficient: Compaq Computer Australia Pty Ltd v Merry, Howard & Ors [1998] FCA 968; (1998) 157 ALR 1 at 5 referred to approvingly by a Full Court of this Court in Quinlivan v Australian Competition and Consumer Commission (2004) 160 FCR 1 at [10].
I agree that there is no reason in principle or policy to require any lesser standard of proof for accessorial liability under a statute regulating industrial relations, as opposed to trade practices. If anything, proof of the necessary mental state to accompany contravening conduct sought to be penalised, rather than remedied through compensation, ought to meet a more rigorous standard.
His Honour then stated at [192] and [193]:
The requisite actual knowledge must be before the conduct alleged to constitute the primary contravention occurs, and then possessed of that knowledge the person acts anyway: Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v John Holland Pty Ltd [2009] FCA 274 at [45]. It is sufficient if the knowledge is of proposed contravening conduct: see analogously Sent v Jet Corporation of Australia Pty Ltd [1984] FCA 178; (1984) 2 FCR 201 at 207 (per Smithers J; Sweeney J concurring).
An accessory must not only have actual knowledge of the misleading conduct but in addition should, in some positive way be associated with the primary contravention through the commission of positive acts. The mere fact of awareness of impending misconduct does not, of itself, raise a case of involvement in that misconduct. An exception is where a duty arises to do something positive: Sent v Jet Corporation of Australia Pty Ltd at 207-208.
80.It is necessary therefore to establish actual rather than constructive notice and that this knowledge is obtained prior to the relevant conduct being entered into. The requisite actual knowledge, must be that the person is aware before the conduct alleged to constitute the primary contravention occurs of some fact or proposed course of action and then possessed with that knowledge the person acts anyway.
81.It is important that a person against whom a claim of accessorial liability is made, have proper knowledge of the allegations against them in relation to accessorial liability. The Act imposes penalties upon employers for certain conduct. If the principles of accessorial liability apply, other persons may be liable also for the same conduct. The provisions in relation to the employers are civil penalty provisions.
82.Because the persons alleged to have been involved as accessories are liable to civil penalties, s.140(2) of the Evidence Act 1995 (Cth) applies. This provides a statutory restatement of the now classic statement of Dixon J in Briginshaw v Briginshaw[1938] HCA 34; (1938) 60 CLR 336 at 362. What is required is reasonable satisfaction which will not be produced by inexact proofs, indefinite testimony or indirect inferences. The nature of the subject matter of the proceeding and the gravity of the matters alleged must be taken into account.
Consideration
83.The evidence is that the first respondent informed the second respondent regarding the applicable Award and classification which applied to its employees. There is no evidence regarding which person from the first respondent so advised the second respondent. The applicant submits Mr Gosain was aware at all times that the applicant drove a forklift as part of his duties.
84.I have found that the applicant was instructed by his supervisor to drive a forklift and did so in the course of his duties. Mr Gosian’s evidence was that a person who is employed to drive a forklift should be paid in accordance with Level MP-3 of the Award. It is not disputed that he did not instruct the applicant to drive a forklift. He says that prior to June 2010 he was not advised that the applicant was driving a forklift and that he had never seen the applicant driving forklift on the occasions he attended the plant during the night shift. The applicant maintains that Mr Gosain saw him driving a forklift during the technical shutdowns. Mr Benyamin and Mr Sayed did not recall Mr Gosain actually observing the applicant driving a forklift on these occasions.
85.I am not satisfied that Mr Gosain had actual knowledge of the essential facts constituting the offence. I accept Mr Gosain’s evidence that, until June 2010, he was not aware that the applicant was driving forklifts during the times he was rostered on the night shift in the Poly section. I accept that he attended the night shift around 84 times during the years the applicant was working on the night shift and did not observe the applicant driving the forklift. Mr Gosain was emphatic in his evidence on this point and I have found no reason to disbelieve Mr Gosain.
86.Accordingly, I accept that the systems in place at the first respondent’s premises were less than optimal in relation to monitoring the licencing of persons working at the plant and the use of forklift trucks by unlicenced drivers. However, I am not satisfied that this unfortunate circumstance amounted to wilful blindness on Mr Gosain’s part. I am satisfied that whatever was discovered after the event (in June 2010) Mr Gosain did not have knowledge of these matters before the relevant conduct was engaged in. He was not in some positive way associated with the driving of the forklifts by the applicant.
87.I find that the first respondent was not involved in the contravention of the Award within the meaning of s.728 of the WR Act or s.550 of the Act.
I certify that the preceding eighty-seven (87) paragraphs are a true copy of the reasons for judgment of Judge Jones
Associate:
Date: 11 September 2014
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