Australian Manufacturing Workers Union v United Lift Services Pty Ltd
[2023] FedCFamC2G 275
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Australian Manufacturing Workers Union v United Lift Services Pty Ltd [2023] FedCFamC2G 275
File numbers: SYG 521 of 2022
SYG 2017 of 2021Judgment of: JUDGE D HUMPHREYS Date of judgment: 17 April 2023 Catchwords: INDUSTRIAL LAW – Fair Work – Contravention of s 340 Fair Work Act 2009 (Cth) – Applicant exercised a workplace right – complaints – redundancy – contravention of s 346 of the Fair Work Act 2009 (Cth) – adverse action – compensation – re-instatement – pecuniary penalties – orders made. Legislation: Fair Work Act 2009 (Cth) ss 50, 340, 342, 361 Cases cited: Board ofBendigo Regional Institute of Technical and Further Education v Barclay (2012) HCA 32
Construction, Forestry, Mining & Energy Union v Clermont Coal Pty Ltd [2015] FCA 1014
Construction, Forestry, Mining & Energy Union v Pilbara Iron Company (Services) Pty Ltd (No 3) [2012] FCA 697
Murrihy v VETEZY.com.au Pty Ltd (2013) 238 IR 307
Division: Division 2 General Federal Law Number of paragraphs: 223 Date of last submission/s: 12 April 2023 Date of hearing: 27 -28 February 2023 Place: Sydney Counsel for the Applicants: Ms Doust Solicitor for the Applicants: Communications Electrical Electronic Energy Information Postal Plumbing And Allied Services Union Of Australia Solicitor for the Applicants: Electrical Trades Union Of Australia Counsel for the Respondent: Mr Duc Solicitor for the Respondent: McEvoy Legal ORDERS
SYG 2017 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AUSTRALIAN MANUFACTURING WORKERS' UNION
Applicant
AND: UNITED LIFT SERVICES PTY LTD ACN 082 447 658
Respondent
order made by:
JUDGE HUMPHREYS
DATE OF ORDER:
17 April 2023
THE COURT ORDERS THAT:
1.A declaration be made pursuant to s 545 of the Fair Work Act 2009 (Cth) (“the Act”) that the respondent contravened ss 50, 340 and 346 of the Act by:
(a)Failing to pay Mr Burton the wages payable to him under the United Lift Services Pty Ltd Installation and Service Division Enterprise Agreement 2021 (“Agreement”);
(b)Failing to pay $79 per week to the redundancy trust PROTECT for and on behalf of Mr Burton as required by the Agreement;
(c)Failing to make arrangements for Rostered Days Off as required by the Agreement in respect of both Mr Burton and Mr Nesbitt;
(d)Failing to consult with employees about the decision to make employees redundant as required by the Agreement;
(e)Dismissing Mr Burton; and
(f)Scoring Mr Nesbitt adversely in the redundancy selection process and dismissing Mr Nesbitt.
2.The matter be listed for Directions at 9:30am on 21 April 2023.
ORDERS
SYG 521 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR DAVID NESBIT
Second Applicant
AND: UNITED LIFT SERVICES PTY LTD ACN 082 447 658
Respondent
order made by:
JUDGE HUMPHREYS
DATE OF ORDER:
17 April 2023
THE COURT ORDERS THAT:
3.A declaration be made pursuant to s 545 of the Fair Work Act 2009 (Cth) (“the Act”) that the respondent contravened ss 50, 340 and 346 of the Act by:
(a)Failing to pay Mr Burton the wages payable to him under the United Lift Services Pty Ltd Installation and Service Division Enterprise Agreement 2021 (“Agreement”);
(b)Failing to pay $79 per week to the redundancy trust PROTECT for and on behalf of Mr Burton as required by the Agreement;
(c)Failing to make arrangements for Rostered Days Off as required by the Agreement in respect of both Mr Burton and Mr Nesbitt;
(d)Failing to consult with employees about the decision to make employees redundant as required by the Agreement;
(e)Dismissing Mr Burton; and
(f)Scoring Mr Nesbitt adversely in the redundancy selection process and dismissing Mr Nesbitt.
The matter be listed for Directions at 9:30am on 21 April 2023.
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 HUMPHREYS
INTRODUCTION
The respondent, United Lift Services Pty Limited (“United”), is a lift company that provides lift and escalator installation and repair services. David Nesbit commenced full-time employment with the respondent on 20 February 2021 in the position of electrician. Mr Nesbitt worked out of United’s Sydney based office. Mr Nesbitt is a member of the Communications Electrical Electronic Energy Information Postal Plumbing and Allied Services Union of Australia (“CEPU”).
Darren Burton, a fitter, was also employed by United. He is a member of the second applicant, the Automotive, Food, Metals, Engineering, Printed and Kindred Industries Union, known as the AMWU.
Both Mr Nesbitt and Mr Burton worked in the construction division of United.
Both Mr Nesbitt’s and Mr Burton’s employment with United was governed under the United Lift Services Pty Limited NSW Installation and Service Division Enterprise Agreement 2021 (“the Agreement”). On 9 February 2021, the employees of United and the CEPU commenced bargaining meetings to advance claims for the members of the CEPU and AMWU with the management representatives of the respondent.
On 18 June 2021, both Mr Nesbitt and Mr Burton were elected as delegates of their respective Unions.
Mr Nesbitt and Mr Burton allege they raised numerous concerns in relation to workplace issues with United including entitlements to rostered days off (“RDOs”), safety concerns and entitlements pursuant to the Agreement.
On 20 July 2021, the applicant received an email from Mr Craig Ellis, the NSW State Manager of United, advising that the company was making two roles in the construction division redundant and sent out an expression of interest in relation to voluntary redundancy. If an employee was interested they were to contact their supervisor by 5pm on 28 July 2021. On 28 July 2021, Mr Nesbitt and Mr Burton each received a letter from Mr Ellis that United had made their roles redundant.
United claims that prior to making Mr Nesbitt and Mr Burton redundant, that a selection process was engaged in order to determine which employees should be made redundant. The selection process involved assessing and then completing an employee skills matrix based on the criteria of safety, peers, staff, customer relations, technical skills and quality of works.
Both Mr Nesbitt and Mr Burton claim they were scored unfavourably by United because:
a) They were members of their respective unions and workplace delegates;
b) They exercised workplace rights; and
c) They engaged in industrial activities and acted in the role of workplace delegates representing the interest of the ETU and AMWU members.
Mr Nesbitt and Mr Burton claim the unfavourable selection process that led to them being made redundant was adverse action pursuant to s 342 of the Fair Work Act 2009 (Cth) (“the Act”), prejudicing their employment by retrenching them, resulting in loss and damages as to their reputation.
Mr Nesbitt and Mr Burton claimed that United breached s 50 of the Act in relation to Mr Burton by failing to pay him wages as payable under the Act, in that they failed to pay $70.00 per week to the redundancy trust ‘PROTECT’, failed to make arrangements for RDOs as required by cl 15 of the Agreement in respect of both Mr Nesbitt and Mr Burton and failed to consult with employees about the decision to make employees redundant.
Mr Nesbitt and Mr Burton also claim that United contravened ss 340 and 346 of the Act, in that United took adverse action against them due to him having workplace rights and exercising them.
The applicants seek declarations that United contravened s 50 of the Act in relation to failing to comply with the relevant Agreement. They seek further declarations that United contravened ss 340 and 346 of the Act. Orders are sought for the reinstatement of Mr Nesbitt, together with the imposition of pecuniary penalties payable to the CEPU and AMWU. Finally, orders are sought for the payment of compensation to Mr Nesbitt and Mr Burton.
In Mr Burton’s case, the AMWU have commenced action against United. By consent, although there are two separate actions, one relating to Mr Nesbitt personally as the applicant and another where the AMWU are taking action as the applicant, both matters were heard together.
THE LAW IN RELATION TO ADVERSE ACTION
Part 3(1) Division 3 of the Act sets out various work place rights for employees. Section 340(1) of the Act provides as follows:
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 proses 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 eight by the other person.
Note: This subsection is a civil remedy provision (see Part 4-1)
Section 341 relevantly defines a work place right to include:
1) A person has a workplace right if the person:
…
a)is able to make a complaint or inquiry
…
ii.if the person is an employee--in relation to his or her employment.
Section 342 relevantly sets out the meaning of adverse action. This includes:
1. Adverse Action is taken by an employer against an employee if the employer:
a)Dismisses the employee; or …
c)Alters the position of the employee to the employee’s prejudice; or
d)Discriminates between the employee and other employees of the employer.
The definition of s 340(1)(c)(ii) of the Act is one that might be satisfied by an employee making a complaint to their employer: Murrihy v VETEZY.com.au Pty Ltd (2013) 238 IR 307 at [141]. There must be a relevant connection between the complaint and the employee’s employment, albeit it may be an indirect one: Construction, Forestry, Mining & Energy Union v Pilbara Iron Company (Services) Pty Ltd (No 3) [2012] FCA 697 at [61]-[64].
Where an applicant alleges a contravention of s 340 of the Act, to be established they bear no burden of proving the reasons for the adverse action. Section 361 of the Act provides as follows:
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, 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.
This must, however, be taken in conjunction with s 360 of the Act which states as follows:
Multiple reasons for action
For the purposes of this Part, a person takes action for a particular reason if the reasons for the action include that reason.
Thus, although under s 360 of the Act the prohibited reason need only be one of multiple reasons for acting in order to amount to a contravention, the prohibited reasons must be a “substantial or operative factor” in influencing the adverse action, or alternatively, an operative or immediate reason for acting: Board ofBendigo Regional Institute of Technical and Further Education v Barclay (2012) HCA 32 (“Barclay”) at [62] per French CJ and Crennon J, [104] per Gummow and Hayne JJ, [140] per Heydon J.
This requires the Court, at a minimum, to conduct an enquiry into the state of mind of the decision maker. Where multiple people are involved in the decision making process, such an enquiry may involve taking into account all the decision maker’s reasons: Construction, Forestry, Mining & Energy Union v Clermont Coal Pty Ltd [2015] FCA 1014 per Reeves J at [103]-[104]).
Generally, it will be extremely difficult to displace the statutory presumptions in s 361 of the Act if no direct testimony is given by the decision maker acting on behalf of the employer: Barclay at [45] per French CJ and Crennon J.
FACTUAL BACKGROUND
The following material is uncontroversial. In 2019, the respondent was the target of an enterprise bargaining campaign by the CEPU and AMWU. A key claim of the bargaining was for a 36 hour week, an improvement on the existing 38 hour week.
In March 2021, after agreement having been reached with United, the Agreement was put to a ballot of employees who voted in favour. The Fair Work Commission approved the Agreement commencing on 20 May 2021.
The Agreement provided for a minimum ordinary hourly wage rate, at clause 11 and schedule 1, including a grade 1 technician rate of $44.59 per hour. It also required United to make payments of $79.00 per week on behalf of its employees into the PROTECT fund.
The agreement provided for a presumptive 36 ordinary hour week. Different ordinary hours could be agreed between United and an employee. Absent such an agreement, an employee was to accrue an RDO each four week work cycle by working eight hours each day, being paid 7.2 hours and accruing 0.8 of an hour towards an RDO.
The agreement contained a consultation provision at clause 7. It applied where there had been “a definite decision to introduce a major change to production, program, organisation, structure, or technology in relation to its enterprise that is likely to have a significant effect on employees”. Clause 7(9) of the Agreement provides (relevantly) as follows:
(9) in this term, a major change is likely to have a significant effect on employees if it results in:
a)the termination of employment of employees (emphasis added); or
b)major change the composition, operational size of the employer’s workforce or the skills required of employees.
or
c)the elimination or diminution of job opportunities (including for promotion or tenure): or …
g)the restructuring of jobs.
On behalf of Mr Burton and Mr Nesbitt it was submitted the clause:
a. Required employers to whom it applied to notify the employees affected of the change of the decision to introduce major change;
b. Entitled employees to appoint a representative for the purpose of the procedures in the clause;
c. Obliged the employer to provide in writing to the employees who may be affected by the change “all relevant information” about the change including the nature of the change proposed, information about the expected dates of the change on the employees and any other matters likely to affect the employees; and
d. Obliged the employer to give prompt and genuine consideration of matters raised about the major change to employees.
THE APPLICANT’S EVIDENCE
Evidence of David Nesbitt
Mr Nesbitt swore two Affidavits, the first dated 3 August 2022 and the second dated 4 November 2022. Mr Nesbitt is a licensed electrician and now works at Schindler Elevators Australia. From 23 March 2020 to 28 July 2021, Mr Nesbitt was employed by United in the construction division. His work included major lift repairs, and the modernisation or renovation of existing lifts and the installing of new lifts.
On 20 March 2020, Mr Nesbitt became a member of the CEPU.
Mr Nesbitt’s direct supervisor was Mr Ben Osborne, the NSW Construction Manager for United. Mr Osborne in turn reported to Mr Ellis
.Mr Nesbitt deposes that he was the employee with an electrical license within the construction division. From about August 2020, he began to raise serious issues in relation to the way work is being performed by United. He claims that unlicensed persons were performing electrical work, including installing, testing, tuning and commissioning lifts. This complaint included United directing fitters to perform electrical work.
Mr Nesbitt claims that when he first started for United, he was paired with an employee named Reagan. Reagan did not have an Australian electrical license, but held Chinese electrical qualifications. In about December 2020, Mr Nesbitt stated that he was doing electrical work at a job at Queens Street, Newtown. Another United employee, George Tam, attended the job to certify and check his electrical work as well as test and commission the lift. Mr Nesbitt claims he spoke to Mr Osborne with words to the effect of:
Nesbitt:I don’t think it is safe or fair that someone without qualifications is doing the job they were doing.
Osborne: Don’t worry about it. It is what it is.
Mr Nesbitt complains that he raised these concerns at least once a month with Mr Osborne saying words to the effect of “I don’t know how you guys are okay with having someone test and commission and do electrical work without having the proper license to do so”.
Around 12 October 2020, Mr Nesbitt states that he received a text message from Mr Burton about a conversation he had with Mr Osborne on the weekend of 10-11 October 2020. The text message, which is attached to Mr Nesbitt’s Affidavit, states that Mr Osborne said to Mr Burton that “I would not want to be a union representative as it doesn’t get me anything other than a target on my back”.
Mr Nesbitt made complaints in respect of Mr Tam failing to conduct a weight balance check at the end of a job to make sure the lift and counterweight were correctly balanced. Further, he left debris on the top of the lift which, in Mr Nesbitt’s opinion, was unsafe to the public and workers, due to the risk of material falling off the lift and down the lift shaft injuring someone. When he complained to Mr Osborne about this issue he claims Mr Osborne said words to the effect of “don’t worry about it… Just keep going with your lift”. He claims there were similar issues with other jobs with Mr Tan loosely stacking multiple weights on top of the lift car.
Mr Nesbitt also complains that testing and tagging was done by team members, including fitters, using Mr Osborne’s mobile number as the tag number. This was supposed to have been done by a licensed electrician, but was not the process that Mr Osborne was following.
Mr Nesbitt also complains that in about March 2021, he became aware that United directed an apprentice, Mr Christian Cassanti, to undertake a job by himself unsupervised. Mr Nesbitt claims he telephoned Mr Matt Sujevic, one of United’s managers, and the following conversation took place:
Nesbitt:I hear Christian the apprentice is doing calls on his own. I don’t think it is right and it is unsafe.
Sujevic: I agree but there is not much I could do.
Nesbitt: That is bullshit. What you mean there is nothing you can do?
Sujevic:There is not much I can do.
Nesbitt:You’re his supervisor. I am disappointed there is nothing you can do.
Mr Nesbitt claims he also had a conversation along similar lines with Mr Osborne. Eventually, Mr Cassanti was taken off doing calls on his own, however Mr Nesbitt claims that he was later directed to do odd calls as an apprentice alone after Mr Nesbitt left United.
In late December 2020, Mr Nesbitt complains that he had difficulties with Mr Osborne in relation to a potential COVID exposure by Mr Cassatt through a Mr Cole. Mr Nesbitt claims he subsequently had a telephone conversation with Mr Ellis in which he advised that he had sent Mr Cassatti home in order to undertake a PCR test. He claims Mr Ellis said words to the effect:
How do you know they (Mr Cassanti and Mr Cole) worked together? Did you call Ash or did he ring you? Why are you speaking to other members of the team? Seems to me you are just the company gossip and a loudmouth. I will deal with this later.
As a result of this phone call, Mr Nesbitt claims he felt bullied and extremely uncomfortable in bringing any workplace issue to Mr Ellis’ attention.
Following approval of the Agreement, Mr Nesbitt claims that his site allowance was reduced from $2.86 per hour to $2.00 per hour.
On 9 June 2021, Mr Nesbitt states he received a form from United titled “New South Wales Working Hours Arrangement Request”. Mr Nesbitt states that he spoke to a union representative, Mr Bankes, in which he had a conversation complaining about the reduction in the site allowance and alleging that when Mr Ellis or Mr Osborne handed out the form to employees allowing them to waive fortnightly RDOs, they stated that if employees did not sign the form to waive fortnightly RDOs they (United) would employ others that would.
On 17 June 2021, Mr Nesbitt sent back the form provided to him choosing the option of two RDO’s per month. The next payslip he received did not appear to put in place the two RDOs per month system. When he raised the issue with Mr Osborne, he was directed to speak to Ms Marianne Nguyen in Melbourne. He sent her a text and she responded that if employees wished to change their RDOs they would need to talk to Mr John Hermus, a director of United. He subsequently took the issue up with Mr Bankes from the union.
Mr Nesbitt gave evidence of his election on 18 June 2021 to the role delegate, and Mr Burton to a similar role with the AMWU.
On 19 July 2021, Mr Nesbitt received a letter advising that he and all other employees from the Construction Division of United were to be stood down with immediate effect due to the COVID-19 pandemic.
The following day he received an email from Mr Ellis indicating that United would be downsizing their workforce with up to two redundancies. The email asked for volunteers by close of business on 28 July 2021. However, prior to close of business Mr Nesbitt received a phone call from Mr Ellis advising him he was being made redundant.
On 3 August 2021, Mr Nesbitt states he met Mr Osborne at Westfield Tuggerah in order for his tools to be returned to him. He had a conversation with Mr Osborne to the effect of:
Mr Nesbitt: Did Tony Savva take my role?
Mr Osbourne: Yes he has.
Mr Nesbitt:How can you make someone redundant and then immediately give someone their role?
Mr Osborne: I can’t answer that. I had no say in your redundancy whatsoever. Neither did John. It was Craig’s sole decision. He acted alone.
Mr Nesbitt deposes he became aware that a few days after he was made redundant Mr Savva was performing electrical work at a job for United. Following his redundancy, Mr Nesbitt deposes that United advertised for electrical services positions due to an expansion of their business. He claims he could have fulfilled that role.
In November 2021, Mr Nesbitt was successful in gaining a position with Schindler Lifts but was forced to relocate to Canberra from the Central Coast where he then resided. Attached to Mr Nesbitt’s Affidavit were two payslips for the periods ending 6 and 20 June 2021. These show Mr Nesbitt worked 11.5 hours overtime in the period ending 6 June and 14.5 hours overtime in the period ending 20 June 2021 while employed at United.
In his further Affidavit of 4 November 2021, Mr Nesbitt claims that United did not have three electricians in the Constructions area as at 23 July 2021. Mr Clarke was dismissed before 22 July 2021. Mr Osborne was a qualified electrician but was the Installations Manager and did not perform electrical work. He denies that United used a third party to test lifts. This was done by employees of United. He denies that Mr Ellis ever mentioned a skills matrix to him and he never saw such a document. In terms of his skillset, Mr Nesbitt states he was able to perform service work as well as electrical work as a result of experience with a previous employer. Whist working at United, he attended breakdown jobs over a three week period in September 2020. He also provides examples of issues where Raegan and George undertook electrical work, including an incident when one of them ran electrical cables to the lift drive and it subsequently blew up.
In cross-examination, Mr Nesbitt agreed that he did not speak to the CEPU about unlicensed electrical work being performed until after he ceased work with United. He also agreed he did not speak to WorkCover New South Wales about that issue. It was put to Mr Nesbitt that a number of conversations contained within his Affidavit did not take place. This included a conversation with Mr Osborne as to Mr Tam undertaking electrical work without qualifications. Mr Nesbitt affirmed the conversations did take place.
In terms of his complaint about feeling bullied and uncomfortable, he agreed he did not raise this issue with the Union. He agreed that the payment of $2.86 per hour at the site allowance was not included in his contract of employment. He also agreed he did not provide a copy of the letter confirming his appointment as a Union delegate to United.
Mr Nesbitt gave his evidence in a clear and forthright manner. His evidence was supported by photographs allegedly showing shoddy and dangerous work performed by other United employees on lifts. His assertions were also supported by contemporaneous text messages and other documentation. He was unshaken in cross-examination. The Court accepts him as a credible and reliable witness.
Evidence of Darren Burton
Mr Burton affirmed two Affidavits dated 3 August 2022 and 4 November 2022. In his first Affidavit, he deposed that he is a qualified fitter and had worked as an installer and lift technician in the lift industry for 5 years. Mr Burton began working for United in January 2020. He is a member of the AMWU and became a site delegate at United in June 2021.
Upon commencing employment with United Mr Burton mostly performed lift modernisation tasks. Although qualified as a mechanical fitter, he deposes that he was required to perform electrical work as well, even though he was not qualified as an electrician. On some jobs he would work with an apprentice electrician.
In March or April 2020, Mr Ben Osborne joined United as the Construction Manager. In about July 2020, Mr Burton stated he sent Mr Osborne a text message inquiring as to progress in relation to a new Agreement. Mr Osborne replied that he would need to speak to Mr John Hermus. Later that day, Mr Osborne telephoned Mr Burton and said:
I’ve spoken to John and the company isn’t too keen on the Enterprise Agreement happening at all. The company doesn’t want fortnightly Rostered Days Off. John’s also told me you might want to keep quiet on the Enterprise Agreement otherwise you might end up on less money.
On 17 August 2020, Mr Burton deposes that he was directed to undertake a job in Newtown. He sought details about various issues including where the access and lift keys might be stored. While waiting for Mr Osborne to attend the site he deposes he saw a Strata Notice that lift works would commence on 15 September 2020 not 17 August 2020. He claims Mr Osborne directed him to start the job and turn the lift off. When he told Mr Osborne that he did not have keys to the lift room, Mr Burton claims Mr Osborne told him to “break into” the motor room. Mr Burton refused. Later that day, Mr Burton claims an acrimonious telephone conversation took place between he and Mr Osborne in which Mr Osborne used an extremely offensive word in relation to Mr Burton. Mr Burton claims he telephone Mr Hermus to complain and was told he just needed to work things out with Mr Osborne. The next day, Mr Osborne saw Mr Burton at another site in the CBD. Also present was another employee, Anthony Barton. Mr Burton alleges Mr Osborne accused him of having ‘mental problems’. Mr Burton responded that it was him that had been abused by Mr Osborne. When he later spoke to Mr Barton about the conversation, he alleges Mr Barton said in relation to the conversation “It didn’t happen”.
In September 2020, Mr Burton alleges he was driving with Mr Osborne to a job in Broadway Sydney. The following conversation took place:
Osbourne:The enterprise Agreement will be getting sorted soon. And Darren Johnson is the new union rep so tell your mate Dave (Nesbitt) that he would be wise to back off. He doesn’t want to be the union rep or he will get a target on his back.
Burton: If that is the case why did you ask Darren Johnson to be the union rep?
Osbourne:I didn’t ask anyone to be the union rep. You don’t know what you are talking about.
On 28 October 2020, a further discussion took place between Mr Burton and Mr Osborne about who was going to be the Union representative. Mr Burton alleges that Mr Osborne said to him; “Fine, be the union rep if you want to be one so badly. Just see where that fucking gets you”.
In November 2020, Mr Burton was working on a job at Liverpool hospital. He states that the job needed two people, but he was working alone. He spoke to Mr Osborne and told him that he had tweaked a muscle in his back and was going home sick. He advised Ms Nguyen that he should be recorded as 5 hours of work and the balance sick leave on his timesheet. Later that afternoon, he was contacted by Ms Nguyen who stated that Mr Osborne had told her that the time off was to be taken from Mr Burton’s RDO balance and not as sick leave.
On 7 December 2020, Mr Burton agrees he had a dispute with a Liverpool hospital employee over where he had parked at the hospital. He advised Mr Osborne about what had happened in a telephone call. He said he would back Mr Burton with the hospital management.
On 16 December 2020, Mr Burton states he had to disassemble a motor so it could be moved to the motor room. He sent a text to Mr Osborne advising what he had done. He then received a phone call from Mr Hermus asking him why he had disassembled the machinery. Mr Hermus and Mr Osborne later arrived at the site. Mr Burton states that Mr Hermus began to belittle him in front of his colleagues. Mr Osborne said “What is your attitude”. Mr Hermus replied “If you do not like it you can pack your stuff”.
The parties then agreed to talk the matter through over a cup of coffee. Mr Burton states he took the opportunity to raise issues with his grading. Mr Burton claims Mr Hermus said in relation to the Agreement “you should stay quiet about the agreement or you might end up on less money”.
On 5 January 2021, Mr Burton was injured at work. He was struck in the head and required stitches. He put in a claim for workers compensation and did not return to work until 12 January 2021.
On 2 March 2021, Mr Burton was working at Fairfield Hospital. Mr Osborne came on site and told Mr Burton he was no longer allowed to work on site due to the incident at Liverpool Hospital. He said he had been instructed of this by Mr Ellis. Mr Burton then called Mr Ellis and the following conversation took place:
Mr Burton:I don’t know why this is fair. Why is something that happened months ago coming up now? I tried to report the incident to Ben after someone told me to ‘shut the fuck up”.
Mr Ellis:Shut up or you’ll be gone. You are not to ever ring me like this. Do not ever speak to me like that.
Mr Burton:If you don’t want me on site then I’ll pack up my tools and go home for the day and start at a different site tomorrow.
Mr Ellis: Are you resigning?
Mr Burton: What do you mean by that?
Mr Ellis: If you leave the site, I’ll take this as your resignation. Are you resigning?
Mr Burton: If I can’t stay on site and can’t leave the site what am I supposed to do?
Mr Ellis: Do not leave the site and do not ring me again.
The following day, Mr Burton had a meeting with Mr Ellis and Mr Osborne. At the meeting he was handed an envelope which Mr Ellis described as a Warning. In fact, the envelope contained two documents described as a first Warning regarding the incident at Liverpool Hospital and the second as a Final Warning due to being aggressive to Mr Ellis during a phone conversation. Following reading the documents Mr Burton spoke with Mr Isberg from the Union. Mr Burton states he started to keep a diary after that point of time.
On 18 March 2021, Mr Burton states he was checking his payslip and realised he had not been paid for a sick day he had taken on 4 March 2021. He states his sick leave was recorded as being in the negative. His time off in January after being injured was initially taken sick leave, but he claims he had been assured that it would be fixed up once the workers compensation claim had been finalised. This issue was apparently rectified after some discussions between Mr Burton and Ms Nguyen.
Mr Burton claims that in March 2021, around the time that voting was take place for the Agreement, Mr Osborne again told him that if employees voted for fortnightly rostered days off, they would be on less money.
On 19 May 2021, Mr Burton states he had a conversation with Mr Hermus about issues he was having trying to get calls returned from management. He told Mr Hermus he was starting to keep a work diary because there was no accountability from management. Mr Hermus asked why he had not called Mr Ellis. Mr Burton told him that Mr Ellis was not responding.
On 21 May 2021, Mr Burton states he arrived at a site in Balmain and entered the motor room. In the middle of the room was his work diary. Either turpentine or methylated spirits had been poured all over it and had destroyed every page.
In a telephone call with Mr Hermus, Mr Burton states that Mr Hermus had told him he had told Mr Osborne that he was keeping a work diary.
Some days later, Mr Burton attended the meeting that was organised by Mr Isberg from the Union. Present at the meeting was also Mr Bankes from the ETU and Mr Osborne. At the end of the meeting, Mr Burton and Mr Osborne shook hands and agreed to move forward.
Following the Agreement being approved, Mr Burton states that he received an email from Ms Nguyen. The email stated that he had been graded as a grade 1 mechanic and would be paid $44.00 per hour. This rate of pay was less than the lowest mechanical rate in the Agreement, which was $44.59. Further, his site allowance was decreased to $2.00 per hour. He also received a document asking him to specify whether he was requesting a fortnightly RDO. He raised these matters with Mr Isberg from the Union.
On 18 June 2021, at a meeting of United’s workers in Sydney, Mr Burton states that he was elected as a Union delegate. Mr Isberg was present at the meeting and said that he was going to speak to Mr Ellis regarding Mr Burton’s pay issues following the meeting.
Although he received assurances that the issue would be fixed, on 8 July 2021 nothing changed and he was still classified as a grade 1 with an hourly rate below that contained in the Agreement for grade 1. When he contacted Ms Nguyen, she told him that she was paying him what she had been told to pay him. Mr Burton was advised however, that the site allowance would be paid at $2.68 from the next pay. He again contacted Mr Isberg who advised that he would contact Mr Ellis and told him that unless the issue was corrected, the Union would be taking the matter to dispute.
On 17 July 2021, the New South Wales government announced to be shutdown of all construction Sydney. On 19 July 2021, Mr Burton received an email from Mr Ellis that the members of the construction team would be stood down due to the lockdown.
On 20 July 2021, Mr Burton received an email from Mr Ellis stating the company was intending to downsize its workforce and was looking to make two positions redundant. Volunteers were asked for, with a deadline being close of business 28 July 2021.
On 28 July 2021, the New South Wales government announced that several restrictions of the construction industry would be lifted. Mr Osborne advised that at least two sites would be reopening the following Monday and he would be in contact with details.
At 1:09 PM on 28 July 2021, Mr Ellis telephoned Mr Burton and said words to the effect “Darren you’re being made redundant due to workload”. Mr Burton contacted Mr Isberg and advised him what happened. At 1:20 PM, Mr Osbourne contacted Mr Burton and said words the effect “I had nothing to do with this”. He later received a letter dated 28 July 2021 advising he been terminated due to redundancy effective 28 July 21.
As he had been stood down due to the COVID lockdown, Mr Burton states he left his tools at the site that he had been working on of Alexandra. He did not receive his tools for several months after being made redundant.
Mr Burton states he later found work as a maintenance manager and commenced employment in September 2021 on a salary of approximately $86,000.00 per year.
In his second Affidavit of 4 November 2022, Mr Burton claims that United was still working on various sites following him being made redundant. He denies there was any incident with any members of staff at Fairfield Hospital. He denies that Mr Ellis told him he was being made redundant due to a skills matrix. He maintains that he was told that his redundancy was due to workload.
Mr Burton Took issue with the ratings that he has been given in the skills matrix that he had been shown following being made redundant. He denies that he left sites early and he always worked a full day. He was unaware of any discussions Mr Osborne had with Liverpool hospital management and maintained that he continued working at the hospital until the job was finished. He does not deny that the discussion Liverpool hospital was heated and denies the account of the conversation provided by Mr Osborne in his Affidavit. In relation to Mr Osborne, he agrees that he may have called him “gutless”. He records the conversation where words were said to the effect of:
Mr Osbourne: You got paid your redundancy.
Mr Burton: You rang me to cover your arse and your conscience.
In cross-examination, Mr Burton affirmed that he was required to perform electrical work as part of his duties. He denied the suggestion that Mr Hermus had never encouraged him to get electrical qualifications. He denied that he had used foul language towards Mr Osborne. He agreed that he should not have been required to do construction work alone. He denied that he was angry at being left alone at the Liverpool hospital site, and denied saying “I’m going home. I don’t care if you sack me. You can’t do anything anyway.”
Mr Burton denied that he was abusive towards a Fire Warden at Liverpool hospital. He denied telling Mr Hermus when he instructed him on how to install the electric motor, “Fuck you. Do-it-yourself. I’m over it, you prick”. He denied abusing staff at the Fairfield Hospital site.
In re-examination, Mr Burton stated that when he was injured at the Liverpool Hospital site, he was advised by Mr Osborne not to go to the Liverpool emergency room for treatment rather, he should go to a medical centre. Initially, Mr Osborne instructed Mr Burton to drive to a medical centre but Mr Ellis instructed Mr Osborne to drive Mr Burton to the medical centre. Mr Osborne’s vehicle was left at Liverpool Hospital. Whilst Mr Burton was receiving treatment at the medical centre, Mr Osborne stayed in a car park.
Mr Burton gave his evidence in a confident and forthright manner. It is clear he had significant conflict with both Mr Osborne and Mr Ellis. He was unshaken in cross-examination. The fact that a diary kept by him was destroyed is very troubling, as is the unchallenged evidence that when he was injured at Liverpool Hospital he was directed not to go for treatment at the emergency area of the hospital but was directed, initially, to drive himself to a medical centre. Why Mr Osborne would have waited outside in the carpark is puzzling.
While the Court has some concerns that Mr Burton may have sought to downplay his role in acrimonious incidents, including an incident with a staff member of Liverpool Hospital which resulted in a complaint to United, the Court looks to the evidence of Mr Nesbitt and the other witnesses called for the applicants for support as to the workplace culture at United where their evidence is supportive. The Court accepts Mr Burton’s evidence.
Evidence of Mr Steven Isberg
Mr Isberg provided two Affidavits, one dated 3 August 2022 and the second 4 November 2022. Mr Isberg is an organiser for the AMWU and works closely with Mr Steven Bankes of the ETU in the lift industry.
In late 2019 or early 2020, he and Mr Bankes approached United for the purposes of negotiating the Agreement. They initially worked with a United Human Resources Manager named Jim Manos.
At that stage, the ETU and AMWU did not have any delegates working for United. At some point Jim left United and was replaced by Mr Ellis.
In March 2021, Mr Isberg deposes that he was contacted by Mr Burton and they discussed the fact that Mr Burton had been given two formal warnings ‘in one hit’. Later, Mr Bankes complained about the manner in which Mr Osborne talked down to him. Mr Isberg recommended Mr Burton start keeping a diary.
Towards the end of May 2021, Mr Isberg, Mr Bankes, Mr Osborne and Mr Burton attended a meeting at a hotel in Mascot to discuss workplace issues. The meeting ended with Mr Osborne and Mr Burton shaking hands and agreeing to move on.
After the Agreement came into effect, Mr Isberg received a telephone call from Mr Burton complaining he was not being paid the correct rate of pay. He spoke to Mr Ellis about the issue.
At a mass meeting of workers held on 18 June 2021, at United’s premises, Mr Burton was elected as the AMWU workplace delegate. After the meeting, Mr Isberg spoke to Mr Ellis and advised him of the results of the election. Mr Burton’s pay issues continued. Mr Isberg advised Mr Ellis if they were not remedied the issue would be ‘put in dispute’.
In late July 2021, Mr Isberg received a telephone call from Mr Ellis. He advised that “we are looking at redundancies due to COVID.” Mr Isberg replied “I understand that, but Darren our delegate, should be kept on.” That was the only communication he had with United over redundancies. No time frame was given and he was surprised when Mr Burton contacted him a week later to advise he had been made redundant.
In his second Affidavit, Mr Isberg deposes that even during a COVID lockdown, lift companies were required to respond to emergencies and rectify lift faults in areas that were still operating such as hospitals and public transport. Prior to the shutdown Mr Burton was working on a site at Ashfield. Once the shutdown ended work recommenced on the site involving other AMWU members. He disagrees with Mr Osborne’s assertion that the meeting at the hotel in Mascot was to deal with Mr Burton’s behaviour.
In cross-examination it was put to Mr Isberg that United had been operating in Sydney since 2010. He agreed that was possible. He agreed that the Agreement negotiations went smoothly with Mr Ellis. He agreed that he did not raise Mr Burton’s first two complaints with United. In relation to the meeting between Mr Burton and Mr Osborne, Mr Isberg, he put the issues down to a clash of personalities.
Mr Isberg agreed that the Agreement specified two RDOs per month and that employees could only have one RDO if they requested it.
Mr Isberg gave his evidence in a matter of fact manner. He did not seem to embellish any of the matters he referred to. The Court accepts Mr Isberg as a credible and reliable witness.
Evidence of Mr Stephen Bankes
Mr Bankes affirmed two Affidavits, one dated 3 August and the other 4 November 2022. Mr Bankes is employed as an organiser with the CEPU and has specific responsibility for the lifts industry.
In 2021, an Agreement came into existence covering all NSW based employees working for United following negotiations with management of United. The negotiations commenced with a Mr Manos representing United but concluded after Mr Ellis commenced employment with United.
On 18 June 2021, Mr Bankes attended the Matraville premises of United. The purpose of the visit was to elect workplace delegates. Mr Nesbitt was duly elected. Following his election, Mr Nesbitt made complaints to Mr Bankes regarding the accrual of RDOs as well as classifications under the new Agreement.
Following the meeting, Mr Bankes together with Mr Isberg attended the office of Mr Ellis and told him that Mr Burton and Mr Nesbitt had been elected as delegates. The issue of the accrual of RDOs was also raised. Mr Ellis said he would look into the matter.
In June to July 2021, Mr Nesbitt again raised on two occasions of RDOs not properly being accrued and there had been no change to the payment of site allowances. It was agreed between Mr Bankes and Mr Nesbitt that they would wait for the time being to allow the matter to be corrected, given the Agreement had only recently come into effect. This continued for four pay cycles.
In the last week of June, Mr Bankes deposes he called Mr Ellis to discuss the issue. Mr Ellis responded he would talk to Mr Hermus about the matter. On 5 July 2021, Mr Bankes sent an email to Mr Ellis and Mr Hermus complaining about payroll issues as well as issues relating to employees being asked to waive the availability of two RDOs per month. This included comments being made to service technicians that “if [they] don’t sign the waiver, they’ll (United) will employ others that will”.
On 23 July 2021 at 6:30pm, Mr Bankes received a telephone call from Mr Osborne advising that United proposed to make employees redundant due to COVID. On 28 July 2021, Mr Nesbitt was dismissed from his employment purportedly on the basis of redundancy. Mr Bankes states he was not involved in any consultation regarding redundancies.
Mr Bankes deposes that following the redundancies in September 2021, United advertised for roles within the NSW and ACT Lift team, including on the basis of “company expansion”.
In his second Affidavit, Mr Bankes deposes that when he visited the offices of United on 18 June 2021, there was a whiteboard that included the start and finishing dates of each job they had to undertake. There were between 10 and 20 jobs on each occasion he saw it. On the last time he saw the board there were multiple jobs listed.
In terms of the role of Ms Nguyen, Mr Bankes states her title was that of Accounts Payable/payroll. It is not suggested Ms Nguyen had any decision making authority. Mr Bankes denies telling Mr Osborne in relation to redundancies to “just make sure it’s not one of my guys”. In relation to the dismissal of Mr Clarke he deposes Mr Osborne told him it was for performance reasons not redundancy.
In cross-examination, it was put to Mr Bankes that various conversations he deposed to did not occur. He refuted those suggestions. This included the conversation with Mr Ellis in which he was advised as to the results of the election of workplace delegates. He stated that he was unaware if a Mervyn Necker was also dismissed around the same time. Mr Bankes was not challenged in cross examination as to his response that when told by Mr Osborne of the redundancies he replied, ‘You’ve got to be kidding’, and that they would “Speak on Monday”. The Court accepts this evidence.
Mr Bankes gave his evidence in a forthright fashion. He was unshaken in cross-examination. The Court is of the view that he is both a credible and reliable witness.
THE RESPONDENT’S EVIDENCE
Evidence of Mr Craig Ellis
Mr Ellis made one Affidavit dated 10 October 2022. He is currently employed as the NSW and ACT Branch Manager for United and has been working in the lift industry since 1986. In early 2020, United had 600 lift units under contract to the value of $2 million.
The company has two divisions, the construction business and the maintenance business. On the construction side of the business, the industry began to decline as employees were progressively told to stay at home with the New South Wales government lockdown being announced on 19 July 2021.
On the maintenance side, this also started to slow down as companies were being put off maintenance visits as they were not allowed on site.
On 22 and 23 July 2022, Mr Ellis deposes that he had a specific restructuring and redundancy meeting with Mr Hermus. The company made the decision to make some technicians redundant due to the uncertainty, shutdown of buildings, sites and reduction of sales from May 2021. As branch manager, Mr Ellis was responsible for employment decisions of the company (presumably within New South Wales and the ACT).
Mr Ellis deposes he determined that United needed to reduce staff to one electrician to be able to complete the work that United currently had left. In order to determine who to make redundant, Mr Ellis states he used a skills matrix. This matrix was circulated to other managers for their input and is attached to his Affidavit.
On 22 and 23 July 2022, senior management of United discussed each employee in detail and marked them against the matrix. For Mr Nesbitt, that discussion included areas like safety, industry experience, electrical and lift experience, quality of work, ability to tune and adjust, together with the ability to work with and ensure customer satisfaction.
In relation to Mr Burton, issues discussed included safety, industry experience, quality and workmanship of fitter, lift experience, basic fitting standards and again, ability to work with and ensure customer satisfaction
On the basis of the matrix, it was determined that Mr Nesbitt and Mr Burton were selected to have their positions made redundant. Mr Ellis claims the fact that Mr Nesbitt and Mr Burton were union delegates played no part in the decision to make their positions redundant. Further, the complaints made by Mr Burton and Mr Nesbitt also played no part in the decision-making process.
Mr Ellis denies that any fitter was directed to perform electrical work. In relation to the photographs attached to Mr Nesbitt’s Affidavit, Mr Ellis claims these appear to be from a lift under construction. Under no circumstances are weights left unsecured on the top of a car. In relation to testing and tagging, Mr Ellis claims these were carried out by licensed electricians.
In relation to the claims made regarding rostered days off, staff were given an option to work either a 36 or 38 hour week. Many technicians wanted to maintain a 38 hour week over the reduced 36 hour week.
Mr Ellis denies he was told by the Union organisers the names of the workplace delegates. The Court finds this statement difficult to accept. In relation to Mr Nesbitt, Mr Ellis denies that he had the skills and experience to take on a service role with the business. Mr Ellis claims that the site allowance was paid in New South Wales as a matter of goodwill as the Enterprise Agreement that was in place in Victoria contained a site allowance.
Mr Ellis claims that Ray Clarke and Mervyn Naicker were also terminated around the same time as
aconstruction work during COVID was extremely slow. As they were still in their probation period this made the process easier. Mr Ellis claims that United considered all options in regards to uncertainty from the business and only after these options have been considered did he continue down the redundancy path.In respect of the claim that jobs were advertised, Mr Ellis says these were only in the service department for Canberra and this occurred around October 2021. At the time the redundancies were made, United did not anticipate that they
willwould be awarded work in the ACT.In relation to a meeting at Fairfield Hospital, Mr Ellis claims he only had a brief meeting with Mr Burton as he was yelling and swearing at him. He agrees that Mr Burton was issued with two Warning letters on the one day, the first in relation to abusing Mr Osborne in front of the Fairfield engineer and the other in relation to abusing Mr Ellis in a telephone conversation. Mr Ellis advises that he told Mr Isberg that the redundancies would be made in the construction division would be based solely on a skills matrix.
In cross-examination, Mr Ellis was taken on a number of occasions to notebooks that he kept and which were produced to the Court. He also claimed that he kept notes and scraps of paper. He claimed he could not recall telling Mr Burton to go to a medical centre rather than going to Liverpool emergency room. He could not recall making any notes about the workplace injury.
At page 146 of the tender bundle, Mr Ellis was taken to a note in relation to Mr Burton made on 12 January 2021. This included that Mr Burton said he was not satisfied with Ben (Mr Osborne) as he was not in control of stuff.
Mr Ellis was unable to recall Mr Osborne praising Mr Burton. The Court notes that even when Mr Ellis was taken to his notes, he had difficulty in recalling specific incidents. There were also some significant gaps in his notebooks.
He agreed that Mr Osborne did not get a Warning letter notwithstanding the fact that issues in relation to his behaviour had been raised. He agreed there were no notes in his notebooks that Mr Burton was to be removed from the Sydney Southwest hospital sites. In relation to the Warning letter, he claimed it was prepared by HR, that being Ms Nguyen.
It was put to Mr Ellis that during the period 13 May to 19 July 2021 he did not appear to have made the same amounts of notes in his notebook as previously. He responded that he had written out his notes on pieces of paper at that particular point of time. It was put to Mr Ellis that there was no mention of the effects of COVID in any of his notes up until the end of May. He stated it was not until June or July that they had issues with work. He was unable to recall as at the end of May, any customers not wanting United workers to be on-site. He was also unaware of any tenders being withdrawn as at 31 May 2021.
Mr Ellis was taken to a note at Court Book page 519 dated 7 June 2021. He agreed, this included the note “restructure of construction will be on the cards prepare a basic skills matrix”. Mr Ellis was asked which firms United held service contracts with who were refusing to make payments that were due. He stated he could not remember. It was put to him that the entry of 7 June 2021 appeared to be written using a different pen to the entry the day immediately before, the entry at the foot of the page of the note and the following day. Further, the entry was different to others, in that it was written in full sentences rather than dot points. Mr Ellis denied he made the entry at a later date than 7 June 2021.
Mr Ellis was taken to a number of New South Wales Health Department COVID reports. He agreed that as at 7 June 2021, no locally acquired cases had been reported in previous seven days. It was put to him that COVID, at that point of time, was not interrupting the industry. He agreed he was keeping an eye on locally acquired cases. It was put to him that throughout all of May, there was only one locally acquired COVID case. He was stated he was not aware. He agreed that during the period 3 May 2021 to 24 May 2021 there were no locally acquired cases.
It was put to Mr Ellis that up to 7 June 2021 there were no New South Wales health orders impacting on the construction industry. He stated he could not recall.
It was put to Mr Ellis that it was strange that as at 1 June 2021, notwithstanding COVID, United had started Mr Clarke only to terminate him on 14 July 2021. Mr Ellis claimed that it was not a problem as at 1 June 2021 and the people at head office decided Mr Clarke could start. Further, Mr Venugopalan started on 18 May 2021 and was terminated on 28 July 2021.
It was put to Mr Ellis that in an email of 9 June 2021 to Mr Hermus and Mr Tokatlian, he made no mention of COVID. He agreed there was no mention.
It was put to Mr Ellis that if COVID was affecting the availability of work, was it not better to have employees working 36 hours per week rather than 38 hours per week. He stated employees did not want to work 36 hours. Mr Ellis was asked as to why his notebooks contain no notes for the period 17 June to 17 July 2021. He stated this was just poor note taking. He could also not recall if he was busy during June 2021. He was unable to recall if he was told the names of the union delegates at a meeting with Mr Bankes and Mr Isberg on 18 June 2021.
Mr Ellis agreed he was not tasked by Mr Hermus to explain to employees that anyone that wanted a 36 hour week needed to talk to Mr Hermus.
Mr Ellis agreed that as at 14 July 2021 he could not point to any job that had shut down due to COVID. He was not sure that, as at that date, Mr Nesbitt was working overtime. He agreed that during the period from the end of May to 21 July there was no shortage of work. He was also unaware of which employees were stuck in their Local Government Area (“LGAs’) as at 16 July 2021 due to COVID restrictions.
It was put to Mr Ellis that he had gone back later to write a note and date it as at 16 July 2021. He denied doing that. It was put to Mr Ellis that as at 16 July 2021 there was no Public Health Order in place restricting employees to LGAs. He stated “I can’t tell you exactly”.
It was put to Mr Ellis that on 17 July 2021, the construction industry was shut down under a public health order. He agreed that on 19 July 2021 the construction branch of United was stood down, which meant that workers did not need to be paid.
Mr Ellis was taken to his note of 19 July 2021 (Tender Bundle page 338). He could not recall which other large businesses were also making employees redundant, but it was probably Otis and Kone. It was put to Mr Ellis that his note on that page “Crap to have to do this” and a sad face were done in anticipation of the Court viewing the entry. He denied this.
He agreed that the call for voluntary redundancies went out on 20 July 2021 did not close till close of business 28 July 2021. He agreed, however, that Mr Burton and Mr Nesbitt were terminated 4 hours prior to the call for volunteers closed.
Mr Ellis did not recall an announcement by the Premier of NSW on the morning of 28 July 2021 that the construction industry was to reopen.
Mr Ellis was taken to his matrix at Court Book page 511. Mr Ellis agreed it was put together on either 22 or 23 July 2021, yet it still contained an evaluation of Mr Ray Clarke who had been terminated 8 days previously. He said it was just in case someone came back to them.
Mr Ellis denied that the matrix was a sham and Mr Nesbitt and Mr Burton were terminated for being Union delegates and had been raising issues about the 36 hour week and Mr Burton being underpaid.
Mr Ellis agreed he was familiar with the Agreement. However, he was not familiar with the requirement to consult with the Union and employees as to any major change.
Mr Ellis’ evidence at times strained his credibility. His inability to answer many fairly straightforward questions was troubling. The Court has some difficulty in accepting that all of his notes in the various notebooks were contemporaneous records of events that took place and were not later re-creations in order to justify actions that were taken.
The Court has considerable difficulties accepting that the matrix purportedly used to justify the termination of Mr Bankes and Mr Ellis was done around 22 July 2021 given that it includes the name of Mr Clarke who had been terminated some days earlier. Further, the decision to terminate Mr Burton and Mr Ellis prior to the stated time for volunteers for redundancy is inexplicable for the reasons proffered by Mr Ellis. As at the time the decision was made, the construction industry had been reopened following an announcement by the Premier. During the period of the stand down, as a result of public health orders, employees of United had also been stood down and were not costing United any money. Given Mr Nesbitt had been working overtime in the period leading up to the stand down, it is difficult to reconcile the claim that United did not have enough work for its current labour force. The Court does not regard Mr Ellis as a credible and reliable witness.
The Court is satisfied that at the time Mr Ellis prepared the matrix, he knew that Mr Burton and Mr Nesbitt were the union delegates. Further, the Court does not accept Mr Ellis’ lack of recollection of workplace complaints by Mr Nesbitt regarding the management of COVID issues relating to an apprentice.
Evidence of Mr Bennett Osborne
Mr Osborne’s Affidavit is dated 10 October 2022. In relation to Mr Nesbitt’s Affidavit, he denies ever directing a fitter to undertake any electrical work. Mr Osborne denies many of the conversations alleged by Mr Nesbitt. He states that debris was secured on a lift car while it was moved during construction. Mr Osborne claims all testing and tagging is carried out by a qualified electrician. He states that he had no role in the redundancies.
In relation to Mr Bankes Affidavit, he denies saying to employees when handing out waivers for the 36 hour week that it was compulsory. He claims Mr Bankes was a Union representative for a day prior to being made redundant. Prior to the redundancies, Mr Osborne claims he asked staff on 26 June 2021 if anyone wanted an RDO due to the slowdown in work.
In relation to Mr Burton’s Affidavit he states that any electrical work carried out by Mr Burton was done in assisting a qualified electrician on site and that he was never directed to undertake energised tasks. He claims that he never directed Mr Burton to liaise with clients as Mr Burton’s temperament would ‘never have allowed for it’.
In response to Mr Burton’s claims of him (Mr Osborne) using foul language towards Mr Burton, he claims that it was Mr Burton who used the foul language and that he tried to calm Mr Burton down on a number of occasions. He claims that two apprentices indicated they did not want to work with Mr Burton due to his volatile nature.
In relation to the Worker’s Compensation forms he claims, he told Mr Burton that he needed to fill the forms in honestly to understand fully what and why he was injured. He denies threatening Mr Burton. He claims that he waited at the medical centre for a long time prior to leaving to ensure that Burton’s wife was able to pick him up and he was okay.
Mr Osborne claims that Fairfield Hospital had been informed of an incident at Liverpool Hospital and it was for this reason they did not want Mr Burton working at Fairfield Hospital.
In cross-examination, Mr Osborne agreed that he told Mr Nesbitt he had no role in any redundancy decision. He did give an assessment of each employees abilities but he did not know what the use of that information was for. He claimed that he still did some lift service work. Mr Osborne agreed it would not be good for him if he let an unlicensed worker undertake electrical work and that his licence would be in jeopardy if he did so.
Mr Osborne understood that Mr Nesbitt had complained about unlicensed staff of United performing electrical work but stated that all those staff members were directed to do was test and adjust lifts which they were qualified to do. He agreed he may have directed Mr Burton to break into a lift motor room and make it safe.
In relation to the potential redundancies, Mr Osborne agreed he was not consulted about Mr Nesbitt. He agreed that up until 19 July 2021, Mr Nesbitt may have been working overtime, but that was due to job deadlines. He agreed that he was aware Mr Burton had been elected as a Union delegate but not Mr Nesbitt.
Mr Osborne stated he spoke to Mr Hermus frequently, both as a friend as well as a work colleague. However, he denied that he gave Mr Hermus any advice about redundancies and who should be selected. He denied that he felt highly as to Mr Burton’s work skills. He agreed there was no discussion and work on the construction department until about the time of the shutdown. In terms of Mr Burton’s classification, Mr Osborne said he had nothing to do with their classifications under the Agreement. He disagreed that it was his view that Mr Burton would be putting his head in the firing line if he put his hand up to be a delegate. Mr Osborne denied he had expressed to Mr Burton that he should be careful in relation to the Agreement otherwise he would end up on less money.
Mr Osborne also gave his evidence in a forthright manner. Under cross-examination, the Court formed the view that he also sought to downplay his role in the accepted disputes that occurred with Mr Burton. In the final stage of cross-examination, he was asked some questions about whether or not he was paid under the Agreement. He stated he was. However, when taken to the Agreement, he was unable to find the classification he stated he was paid under. The Court also noted the concession that Mr Osborne regarding Mr Hermus as a friend as well as the owner of the business. The Court formed a view that he would seek in the first place to be loyal to Mr Hermus as regards any evidence he gave.
Evidence of Mr John Hermus
Mr Hermus provided a single Affidavit dated 10 October 2022. He described himself as the Director of United and had been working at United since 1988. He deposed that in mid-2021 he was concerned with labour costs and that the company had employees who were not being fully utilised. He was uncertain as to what work would be coming in and the company’s ability to maintain staffing levels and engage every staff member to 38 hours per week. He deposed that he considered the potential damage to business arising from a complete shutdown the construction industry in Sydney to be huge risk.
Mr Hermus deposes he directed Mr Ellis to look to making some positions redundant to save labour costs and have the remaining staff work more productively. Ultimately, United decided to make two positions redundant and also let go two recently hired employees. The process for deciding who would be made redundant was undertaken by Mr Ellis using a skills matrix. After it was reviewed by himself, he agreed with the assessments of the staff that were made. He deposes he has direct experience of Mr Burton and his work and work conduct. He had less experience of Mr Nesbitt but accepted the view of Mr Ellis.
Mr Hermus maintains that any electrical work that was carried out by Mr Burton was completed in the capacity to assist a qualified electrician on site. He states Mr Burton was never directed to do electrical work at any time. He states that he formed a view that Mr Burton was very short tempered, during phone calls was quick to become angry and left sites early. He claims that on one job, he had to show Mr Burton how to rejig a motor so that it could be installed correctly. Mr Hermus claims he did not belittle him and only mentored in the process. After one angry conversation, he claims Burton said “I know I have serious anger issues”. He denies making various comments as alleged in Mr Burton’s Affidavit where he was alleged to have said words to the effect of “Darren, if you feel the job is too frustrating perhaps the job was not for you and you can hand in your notice if you wish”. Mr Hermus claims he always encouraged Mr Burton to stay as he sincerely had his well-being and mental health at heart.
Mr Hermus acknowledges that Mr Burton did a good job at times but his attitude and behaviour was inconsistent the best.
In response to Mr Isberg’s Affidavit, Mr Hermus states that United had a preference for 38 hour weeks as it was difficult to manage many employees or contractors having so much time off if they worked a 36 hour week. He claims most workers were split on the concept of RDOs as they prefer to have the money and work as opposed to having an extra RDO.
In cross-examination, Mr Hermus agreed that Mr Ellis was employed to look after the New South Wales and ACT branch of United. He denied there were any key performance indicators for the branch. He denied that United generated monthly reports about the New South Wales and ACT branch of the business. In terms of the company’s finances, he stated that his partner, George Tokatlian took care of the finances and that he would receive oral briefings from him. As at the start of 2020, the company employed about 60 people and currently employed about 180. He again confirmed that United did not undertake any ongoing analysis of its finances, and he was kept verbally informed of progress.
Mr Hermus agreed that he communicated with Mr Ellis as to the progress of the enterprise bargaining negotiations and that he kept an eye on the development of the pandemic in New South Wales. He was unable to recall what the situation was in relation to the pandemic in New South Wales in May 2021. He agreed that in May 2021, the company employed two additional employees. He was asked if they were feeling bullish about the prospects of the business. He answered “of course”. He confirmed however, that he was concerned that as at July 2021 he did not have enough work to enable every staff member being fully engaged for 38 hours per week. Mr Hermus was taken to Mr Nesbitt’s payslips and agreed that the payslip for 8 June 2021 showed that he was working a fair bit of overtime. He agreed that in July 2021, Mr Nesbitt appeared to be working even further over time. He agreed that over the period of June and July 2021, he could not have had a concern of finding enough work for the electricians in the construction division. He answered correct. He denied that the company encouraged employees to sign up for 38 hour week from 9 June 2021 onwards. He again agreed that as at 9 June 2021, there was no shortage of work. He agreed that there was no impact of COVID up until 17 July 2021 when the construction industry was shut down.
Mr Hermus was unable to recall when United was impacted by restrictions on employees going out of their local government area. When pressed, he was only able to point to one job in Ashfield that was impacted by the travel restrictions.
Mr Hermus denied that he gave an instruction to Ms Nguyen that anybody who wished to opt for 36 hour week was required to speak to him, but agreed it was apparent that she had sent a message that indicated this was required. He denied there was any strong-arm tactics from him in seeking to have employees work a 38 hour week as compared to a 36 hour week provided for in the Agreement. He agreed that he gave instructions to Mr Ellis to look at making positions redundant around 17 July 2021. He was unable to recall if he was told that delegates were elected at a mass meeting of the unions. Mr Hermus stated he looked at the skills matrix prepared by Mr Ellis in a team’s meeting. He agreed he never spoken to the Union about the use of a matrix. He agreed he did not speak to the Union about ways that United might be able to minimise the effect of COVID so as to avoid redundancies. Mr Hermus claimed that during the stand down period as a result of the industry shutdown, staff who were stood down were paid sick leave. It was put to Mr Hermus that when he made the suggestion, he was lying. This suggestion was on the basis that the email sent out by Mr Ellis merely indicated that during the stand down period, staff could access annual leave and RDOs.
It was put to Mr Hermus that his claim about payment of sick leave was made in circumstances where he had no basis to think that was true. He answered “Yes”.
Mr Hermus agreed that the skills matrix included the name of Mr Clark who had already been terminated by the time the decision was made to make Mr Burton and Mr Nesbitt redundant.
When it was put to him that Mr Ellis presented him with a document, being the matrix, he was happy for it to be whatever Mr Ellis wanted. He answered correct. He conceded that the decision-maker was in fact Mr Ellis. He denied however that he was as anxious as Mr Ellis to be rid of the delegates in New South Wales.
Mr Hermus agreed that the redundancy process had been cut short and decisions were made prior to the closing time for voluntary redundancies. He agreed there was nothing stopping United from waiting until the timeframe specified in the email sent to staff notifying that corporate redundancies had expired. He agreed it would have been good if he told the union about the matrix and the process they were going to go through to determine who should be made redundant.
Mr Hermus denied that he was aware that on the morning of 28 July 2021, the New South Wales Premier had made an announcement that restrictions to the construction industry were being lifted. He disagreed that he had tried to paint Mr Burton in the worst possible light in his Affidavit. He denied that he had exaggerated his evidence that Mr Burton was trying to move a 1,000kg motor. He agreed that Mr Burton was very good at his job and that he had no issues with his work. However, he claimed that Mr Burton had limited experience. He denied that it was the case that neither Mr Ellis nor Mr Osborne were willing to tolerate having someone who would stand up to them. He stated they did not sack Mr Burton because he was a bad worker.
Mr Hermus’ evidence was in many ways puzzling. Whilst a Director of an apparently successful company, he took no interest in the company’s finances. No evidence was produced that the company was in financial difficulties as at the time the decision was made to make Mr Burton and Mr Nesbitt redundant. The Court does not accept that as a company Director, Mr Hermus had either no interest in or no knowledge of the company’s finances. This impacts on Mr Hermus’ overall credibility.
To a large extent, Mr Hermus sought to distance himself from any involvement in the decision-making process which led to the redundancies. As someone who had been in the lift industry for many years, the Court finds it puzzling that he would not have been aware of the company’s responsibility to consult with the Union and employees about any major change, as defined in the Agreement, which included redundancies.
The Court has difficulty in accepting Mr Hermus’ evidence that it was necessary for redundancies to occur in circumstances where, as he conceded, Mr Nesbitt was working considerable overtime right up until the time that the industry shutdown was ordered. Further, his assertion that the company would pay employees sick days during any stand down period indicated that he was prepared to answer questions without any actual knowledge of the factual circumstances surrounding his answers. This causes the Court to have considerable concerns as to his reliability and credibility.
The Court does not accept that Mr Hermus was supportive of staff working a 36 hour week. The Court finds he was actively opposed to a 36 hour week and took steps to dissuade employees for opting for a 36 hour week. The Court is satisfied that he had a significant involvement in all human resources decisions and was aware that Ms Nguyen told staff in the New South Wales branch, that if they wished to work on a 36 hour week basis, they needed to speak directly to Mr Hermus. The Court does not accept that Ms Nguyen would have sent such a text unless she was under instructions from Mr Hermus to do so.
CONSIDERATION
Contraventions under s 50 of the Act
Section 50 of the Act states that a person must not contravene a term of an enterprise bargain. The applicants allege four breaches of this section, namely:
a. Failing to pay Mr Burton the wages payable to him under the Agreement as set out in Schedule 1;
b. Failing to pay $79.00 per week into the Redundancy Trust RESPECT for and on behalf of Mr Burton as required by clause 18 of the Agreement;
c. Failing to make arrangements for RDOs as required by Clause 15 of the Agreement in respect of both Mr Nesbitt and Mr Burton; and
d. Failing to consult with employees about the decision to make employees redundant as required by clause 7 of the Agreement.
The respondent has admitted to the first breach in underpaying Mr Burton $0.50 per hour, but claims this arose as a result of a payroll oversight. The respondent has also admitted the second breach in not paying $79.00 per week into the RESPECT Trust in relation to Mr Burton. Again, the respondent claims this was inadvertent. The respondent states, and it is not disputed, that both these breaches have been rectified. As this claim was not progressed in the applicants’ submissions, the respondent submitted that the Court should infer that it was no longer pressed. The Court does not accept this submission. The claim was not pursued with vigour by the applicants as it was conceded by United.
In relation to the third alleged breach of failing to accrue RDOs, as required under clause 15 of the Agreement in respect of Mr Burton and Mr Nesbitt, the applicants allege that both Mr Nesbitt and Mr Burton elected their preference for a 36 hour week. Mr Nesbitt was informed that no action would be taken until the matter was discussed with Mr Hermus. The applicants submit that no steps were taken for such a discussion to occur.
The respondent submits that the applicants were given the opportunity to indicate whether they wished the clause to apply to them. The respondent claims they had a verbal agreement with the Unions as to the operation of the clause. As to what that verbal agreement was and when it was made is not clear form any of the evidence. It was submitted that the applicants have suffered no loss or damage as a result of this alleged contravention.
Clause 15 (1) and (2) of the Agreement provided for a presumptive 9 day fortnight with two RDOs per four week cycle. Provision existed for employees to apply to United for one RDO per month. It is common ground that employees were all given a document that required them to elect either one or two RDOs per month. The respondent submitted that who initiated the election was not relevant to the operation of this clause. Mr Nesbitt gave evidence that when the form was handed out to employees to sign, either Mr Ellis or Mr Osborne stated in words to the effect that if employees did not elect one RDO per month they (United) would employ others that would.
The Court is satisfied that both Mr Nesbitt and Mr Burton elected to have two RDOs per month and submitted their forms with this election. Mr Nesbitt submitted his form on or around 16 June 2021. The Court is also satisfied that in subsequent payslips, the fact that this election had been made was not recorded. When Mr Nesbitt queried this with Mr Nguyen in a text on 24 June 2024, Ms Nguyen replied in a text (Court Book page 197):
Hi David I am, hope things are OK over there for you. Did Craig not explain to you guys apparently you’ll need to talk to John (Hermus) to get those changed/confirmed.
Both Mr Osborne and Mr Ellis denied the allegation that they told workers they should opt for one RDO per month or United would get workers that would. In his Affidavit, Mr Hermus conceded that United had a preference for a 38 hour week with one RDO rather than a 36 Hour week with two RDOs.
Based on the evidence of both Mr Burton, and in particular Mr Nesbitt, the Court accepts that United sought to force workers to accept a 38 hour week rather than a 36 hour week. The Court prefers their evidence to that of the witnesses for United. This finding is strengthened by the text of Ms Nguyen as to the need to speak to Mr Hermus. Why would there be a need to by Mr Nesbitt confirm his election with Mr Hermus, if it was an available option within the Agreement is puzzling. The Court is further strengthened in its finding based on the email (Court Book page 351) sent to Mr Hermus, Mr Toktalian and Mr Ellis by Mr Isberg, on 5 July 2021, complaining of a failure to revert to a 36 hour week and ‘strong arm’ tactics to force workers to remain on a 38 hour week. Such an email would not have been necessary had United been acting in accordance with the Agreement. The Court finds this contravention proven.
The next aspect of the pleaded contravention is an alleged failure to consult with respect to the redundancies. Clause 7(5) of the Agreement required United to consult with employees as soon as practicable in respect of any major change. Clause 9(a) defines a major change as being one that ‘results in the termination of employees”. The Court is satisfied that the decision to make employees redundant was a ‘major change’ as contemplated within the Agreement.
It is common ground that United wrote to employees on 20 July 2021 advising them of the decision to make up to two positions redundant. However, that communication did not include the additional relevant information required under clause 7(5) of that Agreement that included the nature of the change proposed, information about the expected change on the employees and other matters likely to affect the employees. No discussions as contemplated by clause 7(5) occurred and employees had no opportunity to raise any issues they wished to.
The decision not to consult was aggravated by the actions of United to use a matrix as the basis for deciding who should be made redundant. The use of this matrix was unknown to employees. United initially called for volunteers, but cut short this process and terminated Mr Nesbitt and Mr Burton before the time period for volunteers expired. This decision was never discussed with employees.
On behalf of United, it was submitted that Mr Ellis did contact the Unions to discuss potential redundancies and states that the response was that they did not want to get involved. This submission however, fails to grapple with the wording of the Agreement that required United to consult with employees on a range of issues. Contacting the Unions did not relieve United of the responsibility under the Agreement to consult with employees.
The Court is satisfied that the decision to make two employees redundant was made and then executed with disregard to the obligations contained within the Agreement. The Court finds the contravention proven.
The Adverse Action Claim
The applicants allege that United contravened ss 340 and 346 of the Act by dismissing Mr Burton and scoring adversely Mr Nesbitt in the redundancy process and dismissing him. Once an applicant alleges adverse action, it is for the employer to show that the action taken was not for a prohibited reason. Further, the reason need only be one of multiple reasons as long as the prohibited reason was a substantial or operative reason.
Based on the evidence of Mr Hermus and Mr Osborne, the Court is reasonably satisfied that the relevant decision maker, for the purposes of the redundancies, was Mr Ellis. Mr Hermus agreed that he was happy for Mr Ellis to have whatever he wanted in terms of the redundancies. Mr Osborne denied any involvement except on the periphery as to who would be made redundant by giving some opinions as to the capabilities of various employees.
Based on the evidence of both Mr Nesbitt and Mr Burton, which the Court accepts, they made numerous workplace complaints in respect of a number of issues. This included Mr Burton inquiring as to the progress of Enterprise Bargaining and raising issues as to his perceptions as to the conduct of Mr Osborne. Mr Nesbitt made complaints about an unlicensed employee certifying and checking his electrical work, the management of COVID on two work sites, unsafe practices with materials fixed to the roof of a lift and an apprentice being sent to do calls on his own and not supervised.
In relation to complaints about unlicensed employees certifying and checking electrical work, the respondent submitted these matters were raised and that they were dealt with in the usual course of business. In relation to the COVID exposure complaints, it was submitted that the cross-examination on this topic demonstrated that it was not a major issue, at least not in the mind of Mr Ellis. The respondent also submitted that the evidence demonstrates that materials being left on the roof was a tool to take debris down to where it can be disposed of.
The Court is satisfied the complaints were about workplace issues as defined in s 340(1)(a)(ii) of the Act. The Court is satisfied the complaints were about workplace issues as defined in
s 340(1)(a)(ii) of the Act.
Whilst it is denied by Mr Ellis and Mr Hermus, the Court is satisfied there was considerable opposition to the introduction of a 36 hour week with two RDOs per fortnight. Mr Hermus conceded as much in cross examination. Mr Nesbitt and Mr Burton had clearly indicated they wanted a 36 hour week in an election form given to United. Each made complaints when the 36 hour week was not implemented for them.
The Court is satisfied there is no other evidence of any dissatisfaction with the work of Mr Nesbitt.
Mr Burton’s account of keeping a workplace diary and that it was destroyed by either turpentine or methylated spirits being poured on it is particularly troubling. Whilst the Court cannot be satisfied as to who may have damaged the notebook, the fact it was destroyed at a worksite indicates it must have been someone who had access to the site. No evidence has been produced which points to another co-worker of Mr Burton having any reason to cause such damage. Having such a record would have been contemporaneous evidence of interactions between Mr Burton and his supervisors. The destruction of the diary prevented that from happening and sent a message to Mr Burton.
The Court accepts that there were disputes between Mr Burton and Mr Osborne. The Court is prepared to accept that these were heated and that foul language may have been used. The Court accepts that there may have been a heated exchange between Mr Burton and Mr Ellis over the telephone, and it accepts that Mr Burton was issued with two formal warnings and that these may have played a role in the decision to make him redundant.
In relation to the evidence concerning the breaking into of the control room on a work site, the respondent submitted that this was a matter that concerned the respondent company and not Mr Burton, in that it was the respondent company’s decision to make and it was for them to rectify any damage caused. It was further submitted that Mr Burton’s complaint in this regard was dealt with in the usual course of business and that it did not form a substantial or operative reason for making Mr Burton redundant. While this may be the case, the direction to break into a site points to a very casual attitude by United as to its workplace practices.
The subsequent events are curious in their sequence and timing. After the Agreement came into effect, further complaints were raised about the implementation of the Agreement. The Court is satisfied that Mr Nesbitt raised concerns about the 36 hour week being implemented. Mr Burton raised concerns as to his rate of pay, grading, and the payment of a site allowance. The Court is satisfied Mr Isberg raised these issues with Mr Ellis and that Mr Burton was mentioned by name. The respondent submitted that by stringing together a number of complaints, the applicants have tried to present enough ‘anti-union conduct’ to convince the Court that union activity had something to do with Mr Nesbitt’s and Mr Burton’s terminations. The Court rejects this submission.
It is uncontested that on 18 June 2021, Mr Nesbitt and Mr Burton were elected as delegates for their respective Unions. United submitted it is contested however, that the respondent company was made aware of this on that day. Mr Ellis made a concession that he may have been told that Mr Nesbitt and Mr Burton were appointed as union delegates. The respondent submitted that whether he was informed did not matter as the respondent company did not consider this to be important to them. .
The Court is satisfied, based on Mr Isberg’s and Mr Bankes’ evidence that Mr Ellis was told who the delegates were immediately following the election. In the Court’s view, the election of delegates and their identity in such a small workplace is not a matter that would not be recalled by Mr Ellis. The Court is also satisfied that Mr Ellis was put on notice that there were issues with the implementation of the 36 hour week with two RDOs.
The Court is satisfied that United failed to correct the issues with Mr Burton’s pay and it is accepted that Mr Isberg threatened to take the matter to dispute. Mr Nesbitt also complained that his election for a 36 hour week had not been implemented. These complaints spanned the period of late June to 5 July 2021. Notwithstanding that the Agreement was approved, the Court is satisfied that United actively sought to frustrate the implementation of the 36 hour week. The respondent submitted that the cross-examination of Mr Hermus indicated that the 36 hour week issue was not an important matter to him. The Court rejects this submission. The Court is satisfied the text by Ms Nguyen stating that anyone who wanted a 36 hour week would have to speak to Mr Hermus is evidence that Mr Hermus actively opposed the introduction of a 36 hour week.
Mr Burton has given evidence, which is denied by Mr Osborne, that in July 2020, Mr Osborne told Mr Burton words to the effect that Mr Burton should keep quiet about the Agreement otherwise he might end up on less money. The Court accepts this evidence.
On 10 October 2020, Mr Burton claims that Mr Osborne told him words to the effect that Mr Nesbitt should back off being the Union representative “or he will get a target on his back.” This was followed up by a later conversation on 28 October 2020 with Mr Osborne telling Mr Burton “Fine be the union rep if you want to be one so badly. Just see where that fucking gets you”. The Respondent submitted that Mr Osborne was also a union member however, and that the company simply did not have a distaste for unions. The Court does not accept this submission. The evidence suggests otherwise.
The respondent submitted that the fact that Mr Nesbitt’s and Mr Burton’s terminations occurred within one month of their election as a union delegates was not examined. It was submitted that the striking coincidence between these events as put forward by the applicants cannot be maintained taking into consideration the time frame by which the Court would need to establish this temporal connection. To simply state that it was ‘close’ indicates that the fact it was ‘close’ was relied upon, however ‘close’ is a relative term: Construction, Forestry, Mining and Energy Union v De Martin & Gasparini Pty Limited (No 2) [2017] FCA 1046. Another employee was within their probationary period so redundancy did not apply. The timing issue is but one of a number of matters considered by the Court. In so doing, the Court has considered all the circumstances surrounding the redundancies including if the shutdown provided a pretext to act in the manner United did to terminate Mr Nesbitt and Mr Burton.
Although United claimed that as a result of COVID restrictions work was reducing, in late May to June 2021, this is at odds with the fact that Mr Nesbitt was working considerable overtime. When asked to recall how the COVID restrictions affected the capacity of United to undertake work, Mr Ellis and Mr Osborne were unable to recall, with any details, jobs that were affected. The respondent submitted that Mr Ellis’ evidence made it clear that he did not consume COVID related information daily, weekly or monthly and that his decision to make roles redundant was under the genuine belief that COVID was impacting the respondent company. The Court does not accept this. Such information was vital in the running of the business in a constantly changing health restrictions environment.
The Court notes that no financial records have been produced by United that would show United was experiencing significant cash flow difficulties at that time, requiring redundancies. The Court however, does accept that two other employees were terminated prior to the request for voluntary redundancies.
Again, the timing of the redundancies is curious. On 19 July 2021 the construction team of United were stood down, following the announcement of the Premier of NSW that construction work was to cease due to COVID issues. This allowed United to stand down its employees relieving United of the requirement to pay them during the period of any closure of the construction industry. It was submitted that United is not an industrially sophisticated organisation and that Mr Ellis did not have a full understanding of what standing down actually meant. The Court does not accept this. Mr Ellis had considerable previous experience in the industry as a manager, including using a matrix to determine ratings for employees. This suggests a high degree of relevant industrial and managerial knowledge.
Standing down would have assisted United with any cash flow issues. Again, there is no evidence that United was experiencing cash flow issues or overall financial difficulty. The following day, United sought voluntary redundancies with Expressions of Interest by close of business on 28 July 2021.
The Court has already found that United breached the Agreement in the manner in which it went about this major change. No real consultation took place. Mr Ellis claims he prepared a matrix based on feedback as to the various skills of employees. That matrix is before the Court in evidence. Inexplicably the matrix contains the name of Mr Clarke who had been terminated some time earlier. The Court does not accept the explanation proffered by Mr Ellis that he was included in case he sought re-employment some time later. The explanation is not credible. The Court is satisfied the matrix was prepared while Mr Clarke was employed with United.
On the morning of 28 July 2021, the Premier of NSW announced that several restrictions were being lifted on the construction industry. That is, work would be able to be recommenced on construction sites. Mr Osborne posted to the group that two sites were reopening on the following Monday. It is uncontested that by 11:30am on 28 July 2021, Mr Burton was notified he had been removed from the group chat used by United. The Court finds that as at that time a decision had been made by Mr Ellis to terminate Mr Burton’s employment. Just after 1:00pm both Mr Burton and Mr Nesbitt were advised they had been made redundant by Mr Ellis.
Given that the call for voluntary redundancies was not due to close until close of business that day, the Court finds it implausible that a decision would be made early on the basis proffered by Mr Ellis, that in his experience volunteers were unlikely. The need to move to terminate any employees, given the construction industry was re-opening, so quickly is inexplicable in terms of the basis proffered by United.
The Court is satisfied that both Mr Nesbitt and Mr Burton had made protected complaints about their workplace. They had put themselves forward as Union delegates. This was known to United. The company was clearly not wishing to implement a 36 hour week, in circumstances where both Mr Nesbitt and Mr Burton had lawfully elected to work in such a fashion. No financial information has been placed before the Court demonstrating financial difficulties such that redundancies were necessary. The Court notes that the redundancies only affected the construction division and inexplicably fell on the shoulders of the two union delegates, prior to the closing time stipulated for voluntary redundancies closing.
While the Court may have some reservations about the work performance of Mr Burton, it does not do so in relation to Mr Nesbitt. The Court is satisfied he was an otherwise good worker. The scoring used in the matrix in the Court’s view does not properly represent his skills and attributes as compared to the other workers within the construction division. The Court rejects Mr Ellis’ evidence in this regard. The Court is satisfied Mr Nesbitt was marked down with the intention of ranking him below other workers such as to justify him being selected for redundancy over other workers.
The Court does not accept the evidence of Mr Ellis and Mr Hermus that the protected complaints and industrial activity of Mr Nesbitt and Mr Burton did not form a substantial and operative reason for their dismissal which constitutes adverse action within the meaning of s 342 of the Act. United has not discharged the presumption under s 361 of the Act that the dismissals of Mr Burton and Mr Nesbitt did not include protected reasons, including their industrial activity.
CONCLUSION
Accordingly, the Court is satisfied that United contravened ss 340 and 346 of the Act and makes the declaration sought in this regard. The Court makes the declarations sought that United also contravened the relevant Agreement and in so doing contravened s 50 of the Act.
Having determined the issue of liability against United, the matter will be stood over for further directions as to the filing and serving any evidence on the matter of the appropriate penalties to be imposed and the issue of compensation to Mr Nesbitt and Mr Burton. The Court notes Mr Nesbitt also seeks reinstatement.
I certify that the preceding two hundred and twenty-three (223) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Humphreys. Deputy Associate:
Dated: 17 April 2023
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