Australasian Meat Industry Employees' Union v Meat Inspectors Pty Ltd
[2025] FedCFamC2G 1128
•23 July 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Australasian Meat Industry Employees' Union v Meat Inspectors Pty Ltd [2025] FedCFamC2G 1128
File number: MLG 1667 of 2023 Judgment of: JUDGE GOSTENCNIK Date of judgment: 23 July 2025 Catchwords: INDUSTRIAL LAW – general protections – adverse action – application for relief in relation to alleged contravention of general protections – whether employee had or exercised workplace right – prospective employee – whether inquiries constituted a “complaint” or “inquiry” for the purpose of s 341(1)(c)(ii) of the Fair Work Act 2009 (Cth) – whether workplace right under s 341(1)(c)(ii) requires an instrumental source or entitlement – no instrumental or other source established –whether prospective employee engaged in “industrial activity” under s 347(b)(vii) – case insufficiently pleaded to establish industrial activity – existence and exercise of workplace right not established – application dismissed Legislation: Fair Work Act 2009 (Cth) ss 12, 19, 340(1), 340(2), 341(1)(c), 341(1)(c)(ii), 341(3), 342(1) item 2, 346, 346(b), 347(b)(vii), 347(f), 360, 361, 361(1) Cases cited: Alam v National Australia Bank Limited [2021] FCAFC 178, 288 FCR 301
Australian Building and Construction Commissioner v Hall [2018] FCAFC 83, 261 FCR 347
Australian Licensed Aircraft Engineers Association v International Aviation Service Assistance Pty Ltd [2011] FCA 333, 193 FCR 526
Australian Red Cross Society v Queensland Nurses’ Union of Employees [2019] FCAFC 215, 273 FCR 332
Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32, 248 CLR 500
Cigarette & Gift Warehouse Pty Ltd v Whelan [2019] FCAFC 16, 268 FCR 46
Construction Forestry Mining and Energy Union v BHP Coal Pty Ltd [2015] FCAFC 25, 230 FCR 298
Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2014] HCA 41, 253 CLR 243
Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (No 3) [2012] FCA 1218, 228 IR 195
Construction, Forestry, Mining and Energy Union v Anglo Coal (Dawson Services) Pty Ltd [2015] FCAFC 157, 238 FCR 273
Construction, Forestry, Mining and Energy Union v Endeavour Coal Pty Ltd [2015] FCAFC 76, 231 FCR 150
Cummins South Pacific Pty Ltd v Keenan [2020] FCAFC 204, 281 FCR 421
Maric v Ericsson Australia Pty Ltd [2020] FCA 452
Murrihy v Betezy.com.au Pty Ltd [2013] FCA 908, 238 IR 307
National Tertiary Education Union v Royal Melbourne Institute of Technology [2013] FCA 451,234 IR 139
PIA Mortgage Services Pty Ltd v King [2020] FCAFC 15, 274 FCR 225
Shea v TRUenergy Services Pty Ltd (No 6) [2014] FCA 271, 242 IR 1
Short v Ambulance Victoria [2015] FCAFC 55, 249 IR 217
Tattsbet Ltd v Morrow [2015] FCAFC 62, 233 FCR 46
TechnologyOne Ltd v Roohizadegan [2021] FCAFC 137
Whelan v Cigarette & Gift Warehouse Pty Ltd [2017] FCA 1534, 275 IR 285
Wong v National Australia Bank Limited [2021] FCA 671
Division: Division 2 General Federal Law Number of paragraphs: 73 Date of last submission/s: 25 March 2025 Date of hearing/s: 24 February, 27 March 2025 Place: Melbourne Counsel for the Applicant: Mr T O’Brien Solicitors for the Applicant: Australasian Meat Industry Employees’ Union Counsel for the Respondent: Mr J R M Tracey KC Solicitors for the Respondent: Carter Newell Lawyers ORDERS
MLG 1667 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AUSTRALASIAN MEAT INDUSTRY EMPLOYEES’ UNION
Applicant
AND: MEAT INSPECTORS PTY LTD
Respondent
ORDER MADE BY:
JUDGE GOSTENCNIK
DATE OF ORDER:
23 JULY 2025
THE COURT ORDERS THAT:
1.The application filed on 28 September 2023 is dismissed.
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 Gostencnik
INTRODUCTION
The respondent, Meat Inspectors Pty Ltd, provides meat inspection and certification services to various meat production facilities across Australia. The respondent employs meat inspectors to provide its clients with these services. In early 2023, the respondent contracted with Hardwicks Meatworks Pty Ltd (Hardwicks) to provide these services at Hardwicks’ facility in Kyneton, Victoria. Hardwicks employed its own meat inspectors, but these positions were to become redundant because meat inspecting functions would be outsourced to the respondent. In February 2023 the respondent offered several meat inspectors, including Mr Stephen Leight, who was then employed by Hardwicks, employment. The respondent sent Mr Leight a letter of offer (dated 10 February 2023) and a proposed employment contract by email on 14 February 2023.
At that time Mr Leight was a member of the Australasian Meat Industry Employees’ Union, the applicant. On 3 March 2023, the applicant’s Victorian Branch Assistant Secretary, Mr Adam Blyth, sought information from the respondent about the terms of the proposed employment contract. Email exchanges thereafter ensued and on 15 March 2023 the respondent provided Mr Leight an email response to the information sought by Mr Blyth. On 24 March 2023, the respondent withdrew the job offer earlier made to Mr Leight.
When the respondent, a prospective employer, withdrew the job offer, it refused to employ Mr Leight, a prospective employee. The respondent’s action was uncontroversially adverse action. In taking the adverse action, the applicant contends the respondent contravened ss 340(1) and/or (2), and/or s 346(b) of the Fair Work Act 2009 (Cth) (FW Act). The overarching issue requiring determination in this case is whether the respondent took the adverse action against Mr Leight because:
·Mr Leight and/or Mr Blyth for Mr Leight’s benefit exercised a workplace right by making an inquiry in March 2023 in relation to Mr Leight’s employment, within the meaning of s 341(1)(c) of the FW Act; and/or
·Mr Leight had engaged in an industrial activity within the meaning of s 347(b)(vii) of the FW Act by seeking to be represented by the applicant.
The applicant contends that the respondent refused to employ Mr Leight because of either or both of those prohibited reasons, and says that the respondent has not proven otherwise to overcome the statutory presumption erected by s 361 of the FW Act. Although the respondent says that it has discharged its burden to rebut the statutory presumption, its primary contention is that the statutory presumption does not arise. Consequently, there are some prefatory issues requiring resolution before the overarching issue may be determined. First, whether s 341(1)(c)(ii) requires an ‘inquiry’ or ‘complaint’ under s 341(1)(c) to have a relevant ‘source’, such as an applicable industrial instrument or employment contract, to constitute the exercise of a workplace right which attracts the protection of s 340. Second, whether Mr Leight as a prospective employee can exercise the workplace right in s 341(1)(c). Third, whether the applicant has established that Mr Leight engaged in an industrial activity by seeking to be represented by the applicant, there being no dispute that the applicant is an industrial association as defined in s 12.
For the reasons which follow, I have decided the application should be dismissed.
FACTUAL BACKGROUND
Before dealing with the issues identified it is convenient to set out the uncontroversial factual background.
Mr Leight is a longstanding member of the applicant, who was employed by Hardwicks in various capacities for about 20 years. For the last 12 years of that employment, Hardwicks engaged him as a meat inspector, or more formally described as an Australian Government Authorised Officer (AAO). In around October 2022, Hardwicks told Mr Leight that the function of meat inspection conducted by AAOs was to be outsourced and, as events transpired, the function was outsourced to the respondent. Hardwicks terminated Mr Leight’s employment on 31 March 2023 on redundancy grounds.
As earlier mentioned, the respondent sent Mr Leight a “letter of offer and contract of employment” by email on 14 February 2023. The offer letter set out that the employment offer was conditional on Mr Leight meeting certain preconditions including his “acceptance of the terms of” the offer letter “and the attached Contract of Employment”. The offer letter invited Mr Leight to indicate acceptance of that offer by “signing where indicated and returning the original to” the respondent.
On 19 February 2023 Mr Leight sent Mr Blyth an email in which he indicated that he was ‘just sending through the “interesting” new agreement they want us to sign’. The following day Mr Leight telephoned Mr Blyth to discuss the offer letter and employment contract and he asked Mr Blyth to review the material and to deal with the respondent on his behalf. On 24 February 2023, Ms Kathleen Karibalis, the respondent’s Human Resources Manager, sent Mr Leight an email noting that the respondent had not received his signed letter of offer and employment contract and asking him to “please sign and return as soon as possible”. Ms Karibalis’ email also attached “additional employment paperwork that [Mr Leight would] also need to complete by Friday, 3 March to ensure that [Mr Leight is] set up in the payroll system ready for [his] first pay to be processed on 7 March 2023”. Mr Leight did not respond to this email. On 2 March 2023, the respondent’s Area Manager, Ms Olivia Hamot, responding to Ms Karibalis’ advice that the respondent was still waiting for a signed offer letter and employment contract from Mr Leight, noted that Mr Leight “is not going to sign any paperworks (sic) unless the union is done reviewing the contract”.
Following Mr Leight’s telephone call to Mr Blyth on 20 February 2023, Mr Blyth proceeded to review the offer letter and the employment contract, and on 3 March 2023 he sent the respondent an email setting out the following:
I am representing one of my members.
I require further information on some of the clauses or wording in the MI contract of Employment.
1, Can an employee, negotiate terms and conditions that they Don't (sic) have to travel to other locations.
2, Why would an AAO who has been employed full time or daily hire want to agree to six months' probation when either party can terminate employment with no less than one weeks' notice.
3, Personal careers (sic) leave, It (sic) fails to word when notifying of an absence "as soon as reasonably practical".
4, What happens to the employees (sic) pay rate when the enterprise agreement that he is being paid under expires.
If any, what award are Meat Inspectors and AAO's covered under.
On 6 March 2023 Mr Leight contacted the respondent and “called in sick”. Mr Leight was not, at that time or at any other time, employed by the respondent. On 13 March 2023 the respondent’s Financial Controller, Ms Katherine Wheildon, sent an email to Mr Blyth asking him to identify the employee on whose behalf he was seeking information as the respondent could not “give out information without permission from the employee”. Mr Blyth responded by email the following day indicating that the member he represented was Mr Leight, that Mr Leight was not the only member Mr Blyth represented, and that Mr Blyth was “merely following questions [Mr Leight] had asked about the contract of employment he has been asked to sign”. Mr Blyth’s email concluded with a statement that “[t]he contract has no flexibility arrangements under the Fair Work Act”.
On 15 March 2023, Ms Hamot received an email which attached a medical certificate for Mr Leight for an absence on 14 March 2023. Later that day Ms Hamot received a medical certificate from Mr Leight certifying that he was unfit for work for the period 15 to 16 March 2023. As already noted, the respondent did not employ Mr Leight.
Ms Wheildon sent Mr Blyth an email on 15 March 2023 indicating that the request for information had been passed on to “HR” and that HR would “respond directly to [Mr Leight]” on the queries in Mr Blyth’s earlier email. Later that day, Ms Karibalis sent an email to Mr Leight responding to the queries, relevantly, as follows:
I just wanted to touch base with you in regards to transferring to Meat Inspectors. I understand that you wanted advice from your Union Representative before proceeding.
At this stage, we have received an email from Adam Blyth with the below questions. I have answered these below for you:
1, Can an employee, negotiate terms and conditions that they Don't (sic) have to travel to other locations.
Yes - this is a standard clause in our contract, however we are happy for you to cross this out and initial this as you are employed specifically for Hardwicks.
2, Why would an AAO who has been employed full time or daily hire want to agree to six months' probation when either party can terminate employment with no less than one weeks' notice.
I have removed this from your letter of offer (attached) and put this as Not Applicable.
3, Personal careers (sic) leave, It (sic) fails to word when notifying of an absence "as soon as reasonably practical".
It is our policy that employees notify their Team Leader or Area Manager of their absence no later then (sic) 30 minutes prior to commencement of the shift. This is to allow time to find someone to fill this shift.
The contract also stipulates the below for continued leave:
If you are aware that you will be prevented from performing duties under this agreement in the future, you must give to MI as much notice as is practicable of the illness or injury and the likely length of absence from work.
4, What happens to the employees (sic) pay rate when the enterprise agreement that he is being paid under expires.
Meat Inspectors will honour the pay rate increases as outlined in the enterprise agreement. When this agreement expires, future rate increases will be in line with the company annual performance review process.
5, If any, what award are Meat Inspectors and AAO's covered under.
Meat Inspectors are not covered under an award. All employees are employed under an Employment Contract. They are protected by the National Employment Standards and the conditions in the Contract.
At this stage, as we have not received your signed LOO or employment documents, you are not considered an employee. Are you still being paid by Hardwicks? If so, please ensure that you forward your medical certificates to them for your payroll processing.
Neither Mr Leight, nor Mr Blyth on Mr Leight’s behalf responded to the email.
By 24 March 2023, Mr Leight was yet to accept the employment offer made on 14 February 2023. On that day, the respondent decided to withdraw the offer, with Ms Karibalis sending Mr Leight an email in the following terms:
Dear Stephen,
RE: Withdrawing Letter of Offer
On 10 (sic) February 2023, you received a job offer for employment with Meat Inspectors as an AAO. As stated in the letter, the offer of employment was contingent upon several factors, including your acceptance of the terms of the letter and attached contract.
As you have not signed and returned the letter of offer or contract of employment, this letter serves as formal written notification that your offer of employment with Meat Inspectors has been withdrawn.
We wish you all the best in your future career.
The respondent says that it was subject to operational imperatives to fill the position, and so it withdrew the earlier offer to employ Mr Leight. It says that Mr Cameron Dart, the respondent’s sole Director and Chief Executive Officer, having spoken with Ms Wheildon (who was also speaking with Ms Karibalis around this time), made the decision to withdraw the offer noting that Mr Leight had failed to respond to the email of 15 March 2023. It says that Mr Dart so decided having regard to what he perceived to be the necessity that Mr Leight commence employment with the respondent in a timely manner and the risk of the respondent being put in a position of Mr Leight accepting an offer in respect of a position which was no longer open to fill. More about this later.
CONSIDERATION
Relevant statutory scheme
Section 340(1) of the FW Act prohibits a person taking “adverse action” against another because, inter alia, the other person has exercised, proposes or proposed to exercise a workplace right, and provides:
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.
Note: This subsection is a civil remedy provision (see Part 4‑1).
Section 340(2) prohibits a person taking adverse action against another person because a third person has, inter alia, exercised, proposes or proposed to exercise a workplace right, for the other person's benefit, or for the benefit of a class of persons to which the other person belongs.
Section 341 sets out when a person has a workplace right, relevantly, as follows:
(1) A person has a workplace right if the person:
. . .
(c) is able to make a complaint or inquiry:
. . .
(ii)if the person is an employee—in relation to his or her employment.
. . .
By s 341(3) of the FW Act, a prospective employee is taken to have the workplace rights he or she would have if he or she were employed in the prospective employment by the prospective employer.
Section 346(b) of the FW Act proscribes the taking of adverse action against another person because that person, relevantly, engages or proposed to engage in certain industrial activity. Section 347(b)(vii) provides, relevantly, that a person engages in industrial activity if the person seeks to be represented by an industrial association.
By item 2 of s 342(1) of the FW Act, a prospective employer takes adverse action against a prospective employee if the prospective employer refuses to employ the prospective employee. By s 360, for the purposes of Pt 3‑1 of the FW Act, a person takes action for a particular reason if the reasons for the action include that reason. Section 361(1) sets out a rebuttable presumption as follows:
361 Reason for action to be presumed unless proved otherwise
(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 that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise.
As a Full Court of the Federal Court of Australia noted in Alam v National Australia Bank Limited [2021] FCAFC 178, 288 FCR 301 at [14], several matters which bear on the application of s 361 of the FW Act in relation to s 340 are settled:
·First, to attract 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: Short v Ambulance Victoria [2015] FCAFC 55, 249 IR 217 at [55];
·Second, a party alleging that adverse action was taken “because” of a particular circumstance must establish the existence of that circumstance as an objective fact: Tattsbet Ltd v Morrow [2015] FCAFC 62, 233 FCR 46 at [119]. An applicant must establish all the elements of the contravention alleged other than the reason or reasons of the respondent for taking the adverse action: Australian Building and Construction Commissioner v Hall [2018] FCAFC 83, 261 FCR 347 at [100];
·Third, an employer takes adverse action in contravention of s 340 if a proscribed reason for the action is a “substantial and operative” reason, or reasons including the proscribed reason: Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32, 248 CLR 500 at [104];
·Fourth, discharging 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: Bendigo v Barclay at [43]–[44];
·Fifth, deciding 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: Bendigo v Barclay at [41], [45] and [101]; Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2014] HCA 41, 253 CLR 243 at [7]; Construction, Forestry, Mining and Energy Union v Anglo Coal (Dawson Services) Pty Ltd [2015] FCAFC 157, 238 FCR 273 at [27]; ABCC v Hall at [19];
·Sixth, although evidence by the decision‑maker about the reason or reasons for taking the adverse action may, if accepted, satisfy the s 361 onus, such evidence is not a necessary pre‑condition: Construction Forestry Mining and Energy Union v BHP Coal Pty Ltd [2015] FCAFC 25, 230 FCR 298 at [192]; Australian Red Cross Society v Queensland Nurses’ Union of Employees [2019] FCAFC 215, 273 FCR 332 at [72];
·Seventh, rejection of a decision‑maker’s evidence about the reason or reasons for taking the adverse action will ordinarily be “a weighty consideration and often a determinative consideration” in determining whether the reason alleged by the applicant was a substantial and operative reason for the action: Cummins South Pacific Pty Ltd v Keenan [2020] FCAFC 204, 281 FCR 421 at [116], but the rejection does not relieve the Court from considering all the evidence probative of whether the reason asserted by the applicant has been negated: Cummins at [116]; Anglo Coal at [27]; Australian Licensed Aircraft Engineers Association v International Aviation Service Assistance Pty Ltd [2011] FCA 333, 193 FCR 526 at [372]. When there is evidence of a broad range of facts and circumstances, which are not dependent on acceptance of the decision‑maker’s evidence about his or her asserted reason for the dismissal, such evidence must be considered in assessing whether the reason or reasons an applicant asserted were a substantial and operative reason for the action: International Aviation Service at [113]; TechnologyOne Ltd v Roohizadegan [2021] FCAFC 137 at [105]–[106];
·Eighth, if the reasons a respondent advances 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: National Tertiary Education Union v Royal Melbourne Institute of Technology [2013] FCA 451,234 IR 139 at [20]; PIA Mortgage Services Pty Ltd v King [2020] FCAFC 15, 274 FCR 225 at [154];
·Ninth, a 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: Bendigo v Barclay at [62]; Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (No 3) [2012] FCA 1218, 228 IR 195 at [80]; Shea v TRUenergy Services Pty Ltd (No 6) [2014] FCA 271, 242 IR 1 at [777]. Nor does the fact that the adverse action has some association with a matter supporting a proscribed reason: CFMEU v BHP Coal [2014]at [20], [87]–[88]; Construction, Forestry, Mining and Energy Union v Endeavour Coal Pty Ltd [2015] FCAFC 76, 231 FCR 150 at [32], [47]–[48]; and
·Tenth, adverse action taken against a person because of conduct resulting from the exercise of workplace rights may not offend the s 340(1) prohibition: CFMEU v BHP Coal [2014]; Endeavour Coal at [52].
Were the matters raised in Mr Blyth’s 3 March 2023 email, a complaint or an inquiry?
Neither of the applicant’s written submissions nor its closing submissions direct attention to whether the email communications Mr Blyth had with the respondent in relation to the offer of employment and proposed contract for Mr Leight were complaints or inquiries. All that the applicant has submitted in this regard was that s 340(2) provided Mr Leight with protection for the representations, inquiries and or complaints that Mr Blyth was “able to make” and that were made on his behalf. But its pleaded case seems clearer. The pleaded case asserts the exercise of the workplace right identified by s 341(1)(c)(ii) of the FW Act by the sending of Mr Blyth’s 3 March 2023 email to the respondent. The applicant pleads at [7] and [13] of its statement of claim that:
7.On or about 3 March 2023, the Prospective Employee, via Mr Blyth, inquired about several terms in the Offer that were substantially different to the Prospective Employee’s existing contract of employment with Hardwick’s.
Particulars
Email of 3 March 2023 from Mr Adam Blyth to the Respondent.
Clause 1 (probation), clause 5 (confidentiality), clause 6 (overpayment), clause 1.2 (Personal/Carers (Sick) leave, clause 2 (Conflicts of interest and outside activities), clause 3 (confidentiality and intellectual property), clause 19.5 (ordinary and customary turnover of labour), clause 20 (post termination obligations).
. . .
13. In sending the email as pleaded herein at paragraph 7:
(a)Mr Blyth exercised a workplace right for the benefit of Mr Leight within the meaning of sections 340(2) and 341(1)(c) of the FW Act; and or alternatively
(b) Mr Leight exercised a workplace right within the meaning of section 341(1)(c) of the FW Act; and or alternatively
(c) Mr Leight engaged in industrial action (sic) within the meaning of section 347(b)(vii) of the FW Act by seeking to be represented by an industrial association.
(emphasis added)
By [15] of the statement of claim, the applicant alleges the respondent withdrew the employment offer for the following reasons:
15. The Respondent took this adverse action because:
(a) Mr Blyth exercised a workplace right for the benefit of Mr Leight as pleaded herein at paragraph 13(a), in contravention of section 340(2) of the FW Act; and or alternatively
(b)Mr Leight exercised a workplace right as pleaded herein at paragraph 13(b), in contravention of section 340(1)(a)(ii) of the FW Act; and or alternatively
(c) Mr Leight engaged in industrial action (sic) as pleaded herein at paragraph 13(c), in contravention of section 346(b) of the FW Act.
Mr Blyth’s email of 3 March 2023 does not deploy the language of a complaint. Noting the caution with which one should approach the use of dictionary definitions in construing statutory terms, the Macquarie Dictionary relevantly defines “complaint” as “an expression of grief, regret, pain, censure, resentment, or discontent; lament; fault-finding” or “a cause of grief, discontent, lamentation, etc”. A “complaint” in the context of s 341(1)(c) of the FW Act connotes an expression of discontent which seeks consideration, redress or relief from the matter about which the complainant is aggrieved: Cummins at [13]. A complaint is more than a mere request for assistance and should state a particular grievance or finding of fault: Cummins at [13]; Shea v TRUenergy at [579]–[581].
In Shea v TRUenergy, Dodds-Streeton J observed at [626]–[627] that it is unnecessary for the employee to identify expressly the communication as a complaint or grievance, or to use any particular form of words. Instead, what is required is a communication which, whatever its precise form, is reasonably understood in context as an expression of grievance and which seeks, whether expressly or implicitly, that the recipient at least take notice of, and consider, it. The characterisation of a communication as a complaint is to be determined as a matter of substance, and not of form.
Mr Blyth’s email sought “further information on some of the clauses or wording in the MI contract of Employment”. The Macquarie Dictionary defines an “inquiry” as “the act of inquiring, or seeking information by questioning; interrogation” or “a question; query”. The text of the email is much more akin to an inquiry, rather than a complaint. In any event, the applicant pleads at [7] of the statement of claim, that via Mr Blyth’s 3 March 2023 email, Mr Leight, a prospective employee, through Mr Blyth “inquired about several terms in the” employment offer.
The respondent accepted that the matters raised with the respondent by Mr Blyth’s 3 March 2023 email in relation to the proposed contract, were “inquiries”; but they were not “complaints”. For the reasons given above, I agree. But, contrary to the applicant’s contentions, the respondent does not accept that Mr Blyth’s email inquiry was an inquiry within the meaning of s 341(1)(c)(ii) of the FW Act.
Does s 341(1)(c)(ii) require a ‘complaint’ or ‘inquiry’ in relation to a person’s employment to have a relevant instrumental source?
The applicant contends the respondent contravened s 340 of the FW Act when it refused to employ Mr Leight because he and/or Mr Blyth on Mr Leight’s behalf exercised a workplace right. The workplace right the applicant is said to have exercised, as pleaded at [7] and [13] of the applicant’s statement of claim, seeks to engage with the right described in s 341(1)(c)(ii).
Section 341 sets out the meaning of workplace right as follows:
Meaning of workplace right
(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.
Subsection 341(3) of the FW Act is a deeming provision which provides that a prospective employee is taken to have the workplace rights he or she would have if he or she were employed in the prospective employment by the prospective employer.
The respondent says that the applicant’s contention is not sustainable because the alleged “inquiries” that were made by Mr Leight or by Mr Blyth on Mr Leight’s behalf were made in respect of the offer of employment as found in the proposed contract and were not founded on, sourced, or anchored in, an “entitlement” so as to constitute the making of those “inquiries” as the exercise of a “workplace right”. Relying on Cummins, the applicant says that no “extant right or entitlement” needs to exist.
An important issue requiring determination is therefore whether Mr Leight and/or Mr Blyth on Mr Leight’s behalf, as the applicant alleges at [13](a) and (b) of the statement of claim, exercised a workplace right of the kind contemplated in s 341(1)(c)(ii) of the FW Act—constituted by Mr Blyth, or Mr Leight, having an ability to make the inquiries in relation to Mr Leight’s “employment”.
The effect of s 341(1)(c)(ii) is that an employee has a workplace right if the employee “is able to make a complaint or inquiry” in relation to his or her employment. But the meaning of the phrase “is able to make a complaint or inquiry” in relation to the employment in s 341(1)(c)(ii) and whether the ability to make a complaint or inquiry requires an instrumental source or entitlement, has been the subject of divergent judicial views.
The ability to make a complaint or inquiry to which s 341(1)(c)(ii) refers is not confined to complaints or inquiries that may be made to an external authority or to persons or organisations with capacity to seek compliance with legal obligations. Complaints or inquiries include those made to the employer in relation to the person’s employment: Murrihy v Betezy.com.au Pty Ltd [2013] FCA 908, 238 IR 307 at [141]–[143]. In Alam,the Full Court discussed the divergent judicial views about the necessity for an instrumental source at [66]–[94]. These need not be repeated, and it is sufficient to note the following.
First, in the instant case, the applicant relies on what was said by Bromberg J (with whom Mortimer J agreed) in Cummins at [44]–[45] to mainstay his argument that exercising a workplace right by making a complaint or inquiry does not need to be anchored to a right or entitlement. But as the Full Court notes in Alam, the reasoning of Bromberg J in Cummins at [44]–[45] was obiter: Alam at [85]–[93].
Second, the Full Court in Alam reproduced at [74] the statement of principles articulated by Collier J in Whelan v Cigarette & Gift Warehouse Pty Ltd [2017] FCA 1534, 275 IR 285:
74. . . .
[33] Section 341(c)(ii) defines a workplace right in an employee as being the entitlement of the employee to make a complaint or inquiry in relation to his employment. In such cases as Shea v TRUenergy Services Pty Ltd (No 6) [2014] FCA 271; (2014) 242 IR 1 (Shea), Murrihy v Belezy.com.au Pty Ltd [2013] FCA 908; 238 IR 307 and Walsh v Greater Metropolitan Cemeteries Trust (No 2) [2014] FCA 456; 243 IR 468 (Walsh), s 341(c)(ii) was interpreted broadly. In Walsh at [41], Bromberg J observed that the requirement in s 341(c)(ii) that a complaint or inquiry by the employee be “in relation to” his employment means that there must be a relationship between the subject matter of the complaint and the complainant’s employment. As Dodds-Streeton J further observed in Shea, a complaint that an employee is able to make in relation to his or her employment is not at large, but must be founded on a source of entitlement, whether instrumental or otherwise.
[34] As a general proposition, a complaint or inquiry to the employer by an employee in relation to his or her entitlement to an incentive bonus, or the failure of the employer to prepare an incentive bonus plan, where the terms of employment of that employee make provision for payment of such bonuses or the preparation of such plans, would fall within the scope of s 341(c)(iii) of the FW Act.
The Full Court observed that it was evident that:
75. . . . in applying the approach of Dodds‑Streeton J in Shea v TRUenergy, Collier J proceeded on the basis that a complaint or inquiry to an employer about an entitlement for which the contract of employment makes provision is within the scope of s 341(1)(c)(ii). Her Honour did not proceed on the basis that either s 341(1)(c) or Shea v TRUenergy required that the right or entitlement to make a complaint or inquiry be itself found in the contract of employment: it is sufficient if the complaint or inquiry relates to a subject matter for which the contract of employment makes provision. It is also to be noted that Collier J did not purport to state exhaustively the kinds of complaints or inquiries which would be within, and without, s 341(1)(c).
The Full Court noted that on appeal in Cigarette & Gift Warehouse Pty Ltd v Whelan [2019] FCAFC 16, 268 FCR 46, a Full Court comprising Greenwood, Logan and Derrington JJ described the statement of principles as “unremarkable and correct” holding that the pleaded complaint or inquiry in relation to a bonus constituted, for the reasons given by Collier J, the exercise of a workplace right for the purposes of the FW Act: at [76].
Third, in Alam the Full Court discussed at [77]–[90] the apparent differences in the approach to construing s 341(1)(c) of the FW Act found in PIA Mortgage and Whelan, and ultimately concluded at [94] that:
. . . while there is some difference between the principles endorsed by the Full Court in Whelan and the approach of the majority in PIA Mortgage, any difference in the application of those two approaches is unlikely to be significant.
Fourth, the Full Court in Alam endorsed the understanding of s 341(1)(c) of the FW Act stated in Whelan. In doing so the Full Court reasoned:
95. It does seem to us, with respect, that, in some of the decisions construing s 341(1)(c), the ability of an employee to make an “inquiry” has not been given the same prominence as has the ability of the employee to make a “complaint”. Section 341(1)(c) should be construed having regard to both limbs. It is not uncommon for instruments, whether they be an industrial award, a collective agreement such as an enterprise agreement, an order of an industrial body, or a contract of employment, to make provision for the making of complaints. It is, however, much less common for instruments of these kinds to make provision for the making of inquiries. This is a matter to which Jessup J referred in Murrihy at [143]… as did Bromberg J in Cummins South Pacific at [46]…It is possible, but in our view unlikely, that the legislative intention is that employees should be regarded as having the ability to make an “inquiry” in relation to their employment only when a right or entitlement to do so has been formally granted or acknowledged by some form of instrument. In our view, this points against a requirement that the ability to make a complaint or inquiry have itself an instrumental source.
…
96. Several authorities have emphasised that an object of Div 3 in Pt 3‑1 of the FW Act is to protect employees from retribution in the form of adverse action because they have exercised a workplace right by making a complaint or inquiry in relation to their employment: Shea v TRUEnergy at [619]; Cummins South Pacific at [14]. As Jessup J noted in Murrihy, the inquiry may involve a request for legal assistance, for example, as to whether an employee is receiving his or her proper entitlements. Such an inquiry may be made to the Fair Work Ombudsman, to the employee’s union, or to a lawyer retained by the employee. It may result in the employee being advised that he or she does have a claimed entitlement, or does not, and in the employee being advised as to the way in which a claim may be pursued. It would be a curious consequence, and seemingly inconsistent with the protection which the FW Act affords to those engaged in the orderly conduct of industrial affairs, if an employee making such an inquiry does not have the protection of s 340 because he or she does not have a right or entitlement, bestowed by a relevant instrument, to make that inquiry.
97. We consider that, irrespective of our own views concerning the proper construction of s 341(1)(c), this Court should proceed on the understanding of s 341(1)(c) indicated by the unanimous decision of the Full Court in Whelan. Doing so gives effect to the important principle of comity to which we have referred.
98. As we have indicated, we doubt that the approach preferred by the majority in PIA Mortgage will produce different outcomes in practice than the approach stated in Whelan.
Given the binding authority of Whelan and Alam, the applicant’s contention that for Mr Leight to exercise a workplace right in the sense of being able to make a complaint or inquiry of the kind contemplated in s 341(1)(c)(ii) of the FW Act, no “extant right or entitlement” needs to exist, cannot be accepted. Moreover, the applicant has not established any “instrumental or other source” of Mr Leight’s ability to make the complaints or inquiries identified by the pleading. The source must be established for the workplace right to exist. So much is made clear by Snaden J in Wong v National Australia Bank Limited [2021] FCA 671:
74. … it is apparent, from Whelan and the majority’s observations in PIA, that the section contemplates complaints or inquiries about the trespass, or threatened trespass, of rights or entitlements conferred contractually or by statute (for example, the right to have bonuses calculated in a particular way, the right to payment on dismissal for the balance of a fixed-term contract or the right not to be misled into accepting employment). That is so because, as the majority in PIA explained, the law that confers those rights—whether it be the general law or statute law—also (and in each case) confers a related right or entitlement to complain about their trespass or threatened trespass. Although, in that case, I expressed the contrary view that “[t]here is nothing inherent in an ability to vindicate rights under the law that confers a related ability to complain about their trespass beforehand”, there is no binding full court authority to that effect. I am bound to apply the law as the majority in PIA stated it.
75. For the sake of completeness, s 341(1)(c)(ii) also contemplates complaints or inquiries about subjects other than the actual or threatened contravention of contractual or statutory rights; but only if their maker is endowed with a right or entitlement to make them, howsoever that right or entitlement might be conferred.
76. In order that a complaint or inquiry made in relation to employment might qualify as the exercise of a workplace right, the employee must first demonstrate that it was made in the exercise of some right or entitlement conferred upon them, whether instrumentally or otherwise. It is not sufficient that a complaint or inquiry is made simply because the employee feels (with justification or otherwise) that he or she has something to complain or inquire about. What must be shown is some right or entitlement to make the complaint or inquiry: some conveyed ability that distinguishes the making of a complaint or inquiry that qualifies as the exercise of a workplace right (on the one hand) from the making of a complaint or inquiry that (on the other) does not so qualify. In Maric v Ericsson Australia Pty Ltd [2020] FCA 452, Steward J held (at [55]):
“For a person to be ‘able’ to make an inquiry, that capacity must be anchored in a legal entitlement of some kind, whether it be statute, contract law, the common law of Australia, or some other instrument or thing that confers legal rights, in the sense described by Rangiah and Charlesworth JJ. in [PIA].”
Relevantly, as a minimum, the inquiry made must relate to a subject matter for which the contract of employment makes provision. But it is to be remembered that for the period when the inquiry was made and the time the respondent took adverse action against Mr Leight by withdrawing the offer of employment, Mr Leight was not an employee of the respondent. Mr Leight was never employed by the respondent—he was at all relevant times a prospective employee. The matters the subject of inquiry made by Mr Leight, or on his behalf by Mr Blyth in his 3 March 2023 email to the respondent, were not anchored in any kind of legal entitlement. Vis-à-vis the respondent, the matters raised by or on behalf of Mr Leight were not rooted in a statutory based entitlement nor in contract. The matters were not founded in some common law right nor in any instrument conferring legal rights such as a modern award or enterprise agreement.
The matters the subject of the inquiry in the 3 March 2023 email concerned a proposed contract of employment into which the respondent had offered to enter with Mr Leight. The applicant has not established that the terms of the proposed contract were settled, or that any term of the proposed contract conferred on Mr Leight any legal right or capacity to enforce any right. The very nature of the inquiry was about a proposed contract of employment that had yet to be made. And applying the deeming provision in s 341(3)—what workplace rights would a draft or proposed contract confer on Mr Leight if he is taken to have the workplace rights he would have if he had already been employed by the respondent? The answer is of course: none arising from the proposed contract. In this regard, the following observations of Steward J in Maric v Ericsson Australia Pty Ltd [2020] FCA 452 are here apt:
58. Does the statutory fiction created by s. 341(3) of the FW Act require any different answer? I think not. Strictly speaking, the fiction mandated by s. 341(3) is not that the prospective employee is taken to be employed; rather, the prospective employee “is taken to have the workplace rights” he or she would have “if she or he were employed”. Thus here, one must determine what workplace rights the applicant would have had if she had been employed by the respondent. The applicant is then deemed to have those workplace rights. The statutory fiction, whether or not it is to be strictly construed, thus practically requires one to assume that the applicant was employed by the respondent when in fact she never was. In my view, this requires one to determine the applicant’s workplace rights under s. 341(1) on that fictional basis.
59. However, there is a problem insofar as the source of an ability to make a complaint or inquiry is said to arise from a contract of employment. Whilst s. 341(3) practically requires one to assume that the applicant was employed, it is otherwise silent as to the terms of that employment. That may not matter in a given case. But, here, the parties were in disagreement about the content of the Proposed Contract, and could not agree about its final form. I cannot assume that the contract which would have been entered into for the purposes of the statutory fiction would have taken the form of the Proposed Contract provided by the respondent. That form of the contract of employment was never accepted by the applicant. Nor can I assume that the contract which would have been entered into for the purposes of the statutory fiction would have assumed the form of the respondent’s Proposed Contract as amended by the applicant. Those amendments were never accepted by the respondent. If the parties had continued to negotiate the content of a contract of employment, I can only guess at the outcome of their bargaining; it would be speculation to know what clauses would have survived, what clauses would have been deleted, and what clauses would have been amended.
Although the case as pleaded relies only on the inquiry made in the 3 March 2023 email from Mr Blyth to the respondent, the applicant nevertheless submitted in closing that the enquiries made by Mr Blyth on behalf of Mr Leight included that “The contract has no flexibility arrangements under the Fair Work Act”. Accordingly, so the applicant argues, this was an exercise of a workplace right within the meaning of s 341(1)(c)(ii), presumably because it is anchored in the FW Act. As earlier noted, on 14 March 2023 Mr Blyth responded to Ms Wheildon’s email of 13 March 2023, in which she asked Mr Blyth to identify the employee he was representing. Mr Blyth’s response was as follows:
The member that I represent is Steve Leight.
Steve is Not, the only member that I represent.
I am merely following questions Steve had asked about the contract of employment he has been asked to sign.
The contract has no flexibility arrangements under the Fair Work Act.
The allegation that the respondent withdrew its offer of employment to Mr Leight because of, or for reasons which included that he exercised a workplace right by making an enquiry that the contract of employment offered did not contain a flexibility arrangement under the FW Act, was not put to any of the respondent’s witnesses, and for that reason alone the contention must fail. Nor was the case pleaded or conducted on the basis that Mr Leight was entitled to the benefit of a workplace law as founding the workplace right and that the respondent took the adverse action for that reason or for reasons which included that reason. In any event, the FW Act is not the source of an entitlement for Mr Leight of the kind Mr Blyth’s inquiry suggested. Moreover, and to the extent that the flexibility arrangement to which the email averts is an individual flexibility arrangement, such an arrangement is made between an employer and an individual employee in relation to an operative modern award or enterprise agreement which applies to that employer and employee, subject to meeting certain preconditions set out in the relevant industrial instrument. As the legislative note to the deeming provision in s 341(3) makes clear, the effect of that subsection is, inter alia, to prevent a prospective employer making an offer of employment conditional on entering an individual flexibility arrangement. Had the proposed contract contained such a term, and the offer expressed as conditional on acceptance of the term as is, or acceptance of the proposed contract as is, the respondent in subsequently withdrawing the offer might well be said to have taken adverse action for a proscribed reason.
For these reasons Mr Leight did not have, nor did he exercise a workplace right, by making the inquiries in the 3 March 2023 email, within the meaning of s 341(1)(c)(ii) of the FW Act. Nor, for the same reasons, did Mr Blyth exercise a workplace right for the benefit of Mr Leight within the meaning of ss 340(2) and 341(1)(c)(ii). That disposes of the first two limbs said to be the reason or reasons the respondent took adverse action against Mr Leight.
It is for the applicant to establish the existence of the workplace right or rights alleged as an objective fact: Tattsbet Ltd at [119]. This it has failed to do. It follows that as the applicant has shown neither that Mr Leight exercised the workplace right alleged, nor that Mr Blyth exercised that workplace right for Mr Leight’s benefit within the meaning of ss 340(2) and 341(1)(c)(ii) of the FW Act, s 361 is not enlivened in respect of these aspects of the applicant’s claim. Accordingly, these aspects of the applicant’s claim will be dismissed.
For completeness, in its written outline filed before trial, the applicant contended as follows:
31.The Applicant notes that authorities in this area with respect to these exact facts and provisions largely do not exist. With [27] of PIA Mortgage Services (and Alam) in mind, the Applicant says that Mr Leight’s workplace rights are (and or were at the relevant time):
(a) The right to inquire to the AMIEU;
(b) The right to receive industrial advice from the AMIEU, which ought to be considered as tantamount to legal advice;
(c) The right to representation from a registered union;
(d) The right to participate in industrial activity within ss 346 – 347 of the FW Act;
(e) The right of the third person (and Mr Leight) to question and inquire to the prospective employer about Mr Leight’s entitlements both under the contract and the general law (including the general law governing contracts of employment);
(f) The right to complain (by a third person and or personally) and or inquire (through a third person and or personally) about the contract in a general sense, ranging from entitlements, probationary period/s, NES terms, enterprise agreement and or award applicability.
32. Mr Leight’s inquiries via Mr Blyth were proper inquiries for the purposes of s 341(1)(c)(ii), the contract and the prospective employment. In the event that the “complaints” as plead (sic) are not taken to be complaints, then they ought to be inquiries for the purposes of s 341(1)(c)(ii). Regardless of the proper characterisation, the Applicant submits that Mr Leight’s Offer was withdrawn because he exercised several workplace rights (as above) via Mr Blyth and or because he participated in industrial activity.
(emphasis added)
To the extent that this submission contends the adverse action was taken by the respondent for the reasons articulated in [31](a), (b), (d) [except as already captured by (c)] and (e) and (f) or to the extent that those matters are captured by the allegation pleaded in [13](a) and (b)] of the statement of claim, the existence of those rights as workplace rights had not been pleaded, much less has the applicant established the factual existence of these circumstances which it appears to say have been the reason or reasons for the taking of the adverse action. That submission must therefore be rejected.
I will later deal with the third limb—whether Mr Leight engaged in an industrial activity within the meaning of s 347(b)(vii) of the FW Act by seeking to be represented by an industrial association.
Whether Mr Leight as a prospective employee can exercise the workplace right in s 341(1)(c)?
It is uncontroversial that Mr Leight was, at all material times, a prospective employee of the respondent. As earlier noted, s 341(3) of the FW Act is a deeming provision which provides that a prospective employee is taken to have the workplace rights he or she would have if he or she were employed in the prospective employment by the prospective employer. As Steward J points out in Maric, s 341(3) does not mandate that the prospective employee is taken to be employed. Rather, the prospective employee is taken to have the workplace rights he or she would have if the prospective employee were employed. Accordingly, the Court must determine the workplace rights the prospective employee would have had if he or she had been employed by the respondent. Once so determined, s 341(3) operates so that the prospective employee is deemed to have those workplace rights, and so practically this requires an assumption that the respondent employed Mr Leight.
The respondent contends that despite the deeming provision in s 341(3) of the FW Act, s 341(1)(c)(ii) properly construed only applies to an employee and cannot apply to a prospective employee. The respondent submits that I should find that Mr Leight (and Mr Blyth for the benefit of Mr Leight) did not have the workplace right pleaded. This is because he was unable to make a complaint or inquiry in relation to his employment, as Mr Leight was a prospective employee and not an employee of the respondent. The respondent says that on the proper construction of ss 341(1)(c)(ii) and 341(3), a prospective employee cannot have the workplace right expressed in the former provision, nor was a prospective employee able to invoke the workplace right contemplated. The respondent says s 341(1)(c)(ii) is a provision that only applies to an employee, which naturally excludes prospective employees and the operation of s 341(3).
In Maric, Steward J considered the same argument. His Honour said:
62. It is otherwise unnecessary to address the submission made in relation to the first preliminary question, and presented by Mr Tracey of Counsel on behalf of the respondent, that the phrase “if the person is an employee” necessarily excludes the operation of s. 341(3) of the FW Act. However, I observe, there is much to be said for the proposition. That is because, for the foregoing reasons, there are real difficulties in applying s. 341(1)(c)(ii) to pre-contractual negotiations. It is also because:
(a) the general protection given to the making of complaints or inquiries is expressly limited to those made by employees. It does not extend to complaints or inquiries made by employers or independent contractors. On one view, Parliament intended to reserve to employees only the protection conferred by s. 341(1)(c)(ii). That would suggest it was not intended to apply to prospective employees;
(b) to the extent that there may be a conflict in the scope of ss. 341(3) and 341(1)(c)(ii), that conflict might need to be resolved by a reading down of one of the provisions. In that respect, the Full Court of this Court observed in Handbury Holdings Pty Ltd v. Federal Commissioner of Taxation [2009] FCAFC 141; (2009) 179 F.C.R. 569 at 577 [31] as follows:
The problem of reconciling apparently conflicting parts of the statute is well-worn territory. That process of reconciling such provisions will often require a court, as Lord Herschell explained in Institute of Patent Agents v Lockwood [1894] AC 347 at 360, “to determine which is the leading provision, and which must give way”. The High Court applied that dictum in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 381-382 [70] and went on to say:
Only by determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme.
Here, there is much to be said for the proposition that the “leading provision” is s. 341(1)(c)(ii) and it is thus s. 341(3) which “must give way” to its operation; and
(c) finally, and in any event, each of what the parties called an inquiry concerned the applicant’s prospective employment and not any actual employment. In such circumstances, it may be doubted whether such inquiries were made “in relation to” the applicant’s fictional employment as mandated by s. 341(3).
63. As it may be the case that these potential difficulties could be overcome in a given case, it is not appropriate to say anything more about Mr Tracey’s argument.
Self-evidently, these observations are obiter. Like his Honour, I consider the argument has much to be said about it, at least insofar as it concerns pre-contractual negotiations. Indeed, his Honour’s observations are concerned with the real difficulties in applying s 341(1)(c)(ii) of the FW Act to pre-contractual negotiations. But for the reasons Steward J declined to say any more or reach a concluded view, and given my earlier conclusions, I consider it is neither necessary nor desirable to determine the construction issue raised by the respondent.
Did Mr Leight engage in industrial activity by seeking to be represented by the applicant?
As earlier noted, the third limb of the applicant’s claim as disclosed by [7], [13(c)] and [15(c)] of its statement of claim, alleges that in sending Mr Blyth’s 3 March 2023 email, Mr Leight engaged in “industrial action” (sic) within the meaning of s 347(b)(vii) of the FW Act by seeking to be represented by an industrial association. And the applicant says the respondent took the adverse action of withdrawing the employment offer because “Mr Leight engaged in industrial action (sic) as pleaded . . . at paragraph 13(c), in contravention of section 346(b)”. That section proscribes the taking of adverse action against another person because that person, relevantly, engages or proposed to engage in certain “industrial activity”. Section 347 sets out the meaning of “engages in industrial activity”, and by s 347(b)(vii) relevantly provides, that a person engages in industrial activity if the person seeks to be represented by an industrial association.
Section 12 of the FW Act sets out the meaning of “industrial association” and there is no dispute that the applicant is an industrial association so defined. Although by s 347(f) a person engages in an industrial activity if the person takes part in industrial action, which s 19 defines, that is not the pleaded industrial activity in which Mr Leight is said to have engaged. And so, I take the reference to “industrial action” at [13(c)] and [15(c)] of the statement of claim as intending to refer to “industrial activity”. In any event, there is no evidence of Mr Leight having engaged in industrial action.
I cannot accept that Mr Blyth’s conduct of sending the respondent his 3 March 2023 email is capable of amounting to Mr Leight seeking to be represented by an industrial association within the meaning of s 347(b)(vii) of the FW Act. Mr Leight’s evidence was that some time before or on 19 February 2023, he contacted Mr Blyth for assistance and representation and that on 19 February 2023 he sent Mr Blyth a copy of the offer of employment and proposed contract. He said that on 20 February 2023 he contacted Mr Blyth by telephone and asked him to deal with the respondent on his behalf. His evidence was that he subsequently became aware that on 3 March 2023 Mr Blyth had written to the respondent and enquired about several of the terms of the proposed employment contract.
Mr Blyth’s evidence confirmed his contact with Mr Leight on 19 and 20 February 2023 and the provision by Mr Leight of the offer of employment and proposed contract. Mr Blyth’s evidence was that on 20 February 2023 Mr Leight had telephoned him to discuss the employment offer and the proposed contract, that Mr Leight had informed Mr Blyth that Mr Leight had been offered a contract of employment with the respondent, and that he requested the applicant review the material. Mr Blyth’s evidence was that he had asked Mr Leight whether Mr Leight was happy for Mr Blyth to correspond with the respondent in respect of any concerns that he came across, and that Mr Leight confirmed that he wanted the applicant to do so. Mr Blyth’s evidence was that on 3 March 2023 he made representations by email to the respondent requesting specific information about the proposed contract and enquiring into Mr Leight’s terms of employment. However, the 3 March 2023 email does not identify Mr Leight as the person on whose behalf the enquiries are made. That information comes later in an email from Mr Blyth to Ms Wheildon dated 14 March 2023.
Mr Blyth’s evidence was that his purpose in sending the 3 March 2023 email was to raise the concerns he identified with the proposed employment contract with the respondent. Neither Mr Blyth nor Mr Leight said that the purpose of sending the 3 March 2023 email was for Mr Leight to seek or for Mr Blyth to announce that Mr Leight was seeking representation from the applicant.
There are plainly elements of the evidence recited above which may constitute Mr Leight seeking to be represented by the applicant. That is evident from the conversations between Mr Leight and Mr Blyth on 19 and 20 February 2023. But that is not the case that is pleaded. The allegation that is made is that the sending of Mr Blyth’s email on 3 March 2023 was, inter alia, Mr Leight engaging in an industrial activity by seeking to be represented by the applicant.
Mr Blyth sending the 3 March 2023 email was not conduct of Mr Leight capable of constituting or meeting the description that Mr Leight was engaging in industrial activity by seeking to be represented by an industrial association within the meaning of ss 346 and 347(b)(vii) of the FW Act. I agree with the respondent that it simply and fairly cannot be so characterised. The applicant did not seek to amend its pleading even after the respondent had identified this as an issue in its outline of submissions filed before trial. As I have indicated, there may well be evidence sufficient to establish that Mr Leight engaged in industrial activity by seeking to be represented by the applicant through his discussions with Mr Blyth on 19 and 20 February 2023, but that is not the conduct pleaded as constituting Mr Leight’s engagement in industrial activity. And it is not the function of the Court to fill the gaps in the applicant’s pleaded case.
It is for the applicant to first establish the factual existence of the circumstance which is said to have been the reason for the taking of the adverse action: Tattsbet Ltd at [119]—here Mr Leight’s engagement in industrial activity by seeking to be represented by the applicant through the 3 March 2023 email. For the reasons given above, the applicant has not made good its allegation as pleaded that Mr Leight engaged in industrial activity within the meaning of s 347(b)(vii) of the FW Act by seeking to be represented by an industrial association, and so s 361 of the FW Act is not enlivened. As the third limb has also failed, it follows that the entirety of the application must be dismissed.
If s 361 of the FW Act was enlivened, did the respondent discharge its onus to prove otherwise?
Although it is not necessary to decide whether the respondent has proven that the proscribed reasons alleged were not the reason or reasons for the respondent taking the adverse action against Mr Leight, I will briefly set out my views.
As earlier noted, Mr Dart is the respondent’s sole Director and Chief Executive Officer. He gave the evidence to which I will shortly come.
Ms Karibalis gave evidence that by around 23 March 2023, she had not heard anything further from Mr Leight about his intentions concerning the employment offer. She said that the position of AAO was a senior position critical to the conduct of the respondent’s business, and it was critical that all vacant AAO positions be filled as quickly as possible to ensure that the respondent met its obligations under its various contracts for service. Ms Karibalis said she consulted with Ms Wheildon about what should be done in the circumstances. Ms Karibalis said that Ms Wheildon told her that: as some five weeks had passed since the respondent made its offer of employment to Mr Leight, and Mr Leight had not provided any indication as to his intentions, the offer should be withdrawn.
Ms Wheildon confirmed the substance of the consultation with Ms Karibalis and gave evidence that on 24 March 2023, she approached Mr Dart to inform him of Mr Leight’s lack of response to the offer of employment. Ms Wheildon’s evidence was that she told Mr Dart that she considered the respondent should withdraw the offer of employment. Her evidence was that she told Mr Dart that the respondent should do this before filling the position with another worker, to remove the possibility that Mr Leight might later accept an offer of employment which was no longer available because the vacancy had been filled.
Ms Wheildon’s evidence was that Mr Dart told her that he considered the respondent had to manage its commercial risk, and the obligations it had assumed with Hardwicks, by filling the meat inspector position offered to Mr Leight as soon as possible and, on that basis, Mr Dart instructed Ms Wheildon to withdraw Mr Leight’s offer of employment. Ms Wheildon said that she then directed Ms Karibalis to issue a written notice to Mr Leight withdrawing the employment offer on 24 March 2023.
Mr Dart’s evidence was that he made the decision to withdraw Mr Leight’s employment offer. He confirmed the conversation that he held with Ms Wheildon and her recommendation that the employment offer be withdrawn. He said, consistent with Ms Wheildon’s evidence, that there was a concern about recruiting to fill the position of AAO and he decided to accept the recommendation in the circumstances Ms Wheildon had outlined—that several weeks had passed since the employment offer had been made to Mr Leight, and Mr Leight had yet to indicate his intentions or to communicate his acceptance of the offer. Mr Dart’s evidence was that the respondent needed to fill the AAO role as quickly as possible and that his decision to withdraw the offer was based only on the operational needs of the business to fill the role as quickly as possible.
Nothing raised during cross-examination undermined any of this evidence. Nor is there anything in the evidence led by the applicant which would cause me to doubt or not accept the evidence summarised above. And I accept it. I also accept the respondent’s submission that the oral evidence of all three of these witnesses given during cross-examination confirmed that none of them had any subjective reason for any of their conduct with respect to the adverse action which was a proscribed reason as alleged.
Consequently, it appears to me that Mr Dart was the decision-maker, and he decided that the respondent should withdraw the employment offer. He instructed Ms Wheildon to withdraw the employment offer, and she in turn instructed Ms Karibalis to prepare and issue a letter to Mr Leight withdrawing the employment offer. Mr Dart made the decision because the respondent had an operational need to fill the role of AAO as soon as possible, several weeks had passed since the offer of employment had been made to Mr Leight, and Mr Leight had neither given any indication about his intentions concerning the offer, nor had he accepted the offer. I consider that the respondent has established by evidence that this reason was the only operative reason for the respondent’s decision, effected through Mr Dart, to withdraw the employment offer. That reason is not one, nor does it include one of the alleged proscribed reasons.
Consequently, I would conclude, if s 361 of the FW Act is enlivened, the respondent has discharged its onus by proving, on the balance of probabilities, that the reasons the applicant alleges the respondent took adverse action were not the reasons, that the sole and operative reason was the respondent’s operational need to fill the role of AAO as soon as possible, that several weeks had passed since the offer of employment had been made to Mr Leight, and that Mr Leight had neither given any indication about his intentions concerning the offer, nor had he accepted the offer.
DISPOSITION
The application is dismissed.
I certify that the preceding seventy-three (73) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Gostencnik. Associate:
Dated: 23 July 2025
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