Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Unilever Australia Trading Limited - [2023] FedCFamC2G 61

Federal Circuit and Family Court of Australia
(DIVISION 2)
Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Unilever Australia Trading Limited [2023] FedCFamC2G 61

File number: SYG 604 of 2021

Judgment of: JUDGE CAMERON

Date of judgment: 8 February 2023

Catchwords:
INDUSTRIAL LAW – General protections – adverse action – injury in employment – altering employee’s position to their prejudice – reasons for taking adverse action.

INDUSTRIAL LAW – Adverse action – whether inquiry into allegations against employee amounts to adverse action – whether final written warning of employee amounts to adverse action.

Legislation:
Fair Work Act 2009 (Cth) ss 340, 341, 342, 360, 361, 545, 546, 547

Work Health and Safety Act 2011 (NSW) ss 19, 68

Cases cited:
Whelan v Cigarette & Gift Warehouse Pty Ltd (2017) 275 IR 285

Edgar v Norton Rose Fulbright Australia Services Pty Ltd (2022) 368 FLR 1

Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (1998) 195 CLR 1

McIlwain v Ramsey Food Packaging Pty Ltd (2006) 154 IR 111

Community Public Sector Union v Telstra Corporation (2001) 107 FCR 93

Australian Workers’ Union v BHP Iron-Ore Pty Ltd (2000) 106 FCR 482

BHP Iron Ore Pty Ltd v Australian Workers’ Union (2000) 102 FCR 97

Unsworth v Tristar Steering and Suspension Australia Ltd (2008) 216 FCR 122

Klein v Metropolitan Fire and Emergency Board (2015) 208 FCR 178

Jones v Queensland Tertiary Admissions Centre Ltd (No 2) (2010) 186 FCR 22

Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Visy Packaging Party Pty Ltd (No 3) (2013) 216 FCR 70

United Firefighters Union of Australia v Easy [2013] FCA 763

Police Federation of Australia v Nixon (2008) 168 FCR 340

The Environmental Group Ltd v Bowd (2019) 288 IR 396

United Firefighters’ Union of Australia v Metropolitan Fire and Emergency Services Board (2003) 123 IR 86

Quirk v Construction, Forestry, Maritime, Mining and Energy Union (2021) 312 IR 359

Construction, Forestry, Mining and Energy Union v Coal and Allied Operations Pty Ltd (1999) 140 IR 131

Finance Sector Union of Australia v Australian & New Zealand Banking Group Limited (2002) 120 FCR 107

Lamont v University of Queensland (No 2) [2020] FCA 720

Davids Distribution Pty Ltd v National Union of Workers (1999) 91 FCR 463

Victoria (Office of Public Prosecutions) v Grant (2014) 246 IR 441

Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500

Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (2014) 253 CLR 243

Division: Fair Work

Number of paragraphs: 108

Date of hearing: 29-30 November 2021

Place: Sydney

Counsel for the Applicants: Mr H. Pararajasingham

Solicitor for the Applicants: Mr S. Howe, Australian Manufacturing Workers Union

Counsel for the Respondent: Mr J. Fernon SC

Solicitor for the Respondent: Baker & Mackenzie
ORDERS

SYG 604 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers Union (AMWU) (ABN 59 459 725 116)

First Applicant

SHANE CUNNINGHAM

Second Applicant

AND:
UNILEVER AUSTRALIA TRADING LIMITED (ABN 65 136 885 651)

Respondent

order made by:

JUDGE CAMERON

DATE OF ORDER:

8 February 2023

THE COURT ORDERS THAT:
1.The application be dismissed.

Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE CAMERON
INTRODUCTION

The applicants, the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (“AMWU”) and Shane Cunningham, allege that the respondent (“Unilever”), Mr Cunningham’s employer, contravened ss.340 and 351 of the Fair Work Act 2009 (Cth) (“FW Act”). Relevantly for this proceeding, Unilever made ice cream products at premises in Minto, NSW.
For the reasons which follow, the application will be dismissed.
APPLICANTS’ STATEMENT OF CLAIM
Employment
The applicants alleged that Mr Cunningham commenced employment with Unilever at its Minto Factory in 2010 and was appointed a line co-ordinator in April 2019. By April 2020 that role attracted a loading of approximately 15% on his hourly rate of pay. As a line co-ordinator, Mr Cunningham was responsible for:
(a)monitoring operations to ensure compliance with appendix H to the Unilever Australia Trading Ltd (trading as Streets Ice Cream, Minto) Enterprise Agreement 2017 (“EA”);
(b)facilitating handovers between employees at the end or start of shifts;
(c)escalating production issues to maintenance and managerial staff as required; and
(d)identifying and reporting risks to the safety and well-being of employees.
Events of April 2020
17 April 2020
The applicants alleged that on 17 April 2020 Mr Cunningham attended his ordinary duties on the RIA 2 production line as the line co-ordinator. During the shift, Mr Cunningham verbally informed his shift supervisor, Mr Herrera Garcia that:
(a)given the workload, he thought there were not enough operators available for breaks to be taken and compliance maintained with the “Manning Level Guidelines” of appendix H of the EA; and
(b)the RIA 2 production line should therefore be stopped temporarily in order to facilitate a break for the entire team at the same time.
The applicants alleged that this assertion amounted to (the exercise of) a workplace right pursuant to s.341(1)(a) of the FW Act, in that Mr Cunningham was entitled to
… the benefit of a workplace instrument, namely the ability to take breaks whilst working on the RIA 2 production line pursuant to cl.16 of the EA …
and
… to raise a concern about unsafe work practices on the RIA 2 production line pursuant to appendix H
of the EA.
The applicants also alleged that the assertion amounted to (the exercise of) a workplace right pursuant to s.341(1)(c)(ii) of the FW Act, in that Mr Cunningham
… made a complaint or inquiry in relation to his employment, namely raising his concern about operations on the RIA 2 production line.
The applicants alleged that Mr Herrera Garcia responded that he did not agree with Mr Cunningham’s advice and as a result Mr Cunningham and his colleagues continued to operate the RIA 2 production line.
20 April 2020
The applicants alleged that on 20 April 2020 Mr Herrera Garcia approached Mr Cunningham and a Mr Doyle and issued each of them with printed records generated from Unilever’s timekeeping system which recorded they had taken breaks in excess of those prescribed under the EA. Messrs Cunningham and Doyle queried this action and Mr Herrera Garcia said:
… this wouldn’t be happening if you didn’t question me about manning and stopping of the line for the first break.
Events of May 2020
Meeting of 11 May 2020
The applicants alleged that on 11 May 2020 Mr Herrera Garcia told Mr Cunningham that he was to attend a meeting with company representatives. Mr Cunningham attended with Mr Ollerton as a support person and Mr Herrera Garcia appeared with Ms Holborow, Unilever’s HR business partner, and Mr Roach, the plant manager. At that meeting, Mr Roach informed Mr Cunningham that:
(a)Unilever had been made aware of serious allegations of gross misconduct, namely that Mr Cunningham had sometimes been taking breaks in excess of what was prescribed by the EA; and
(b)Mr Cunningham would be stood down on full pay while an investigation was undertaken.
The applicants alleged that the investigation and the stand down amounted to adverse action under the FW Act because they:
(a)injured Mr Cunningham in his employment; and
(b)altered Mr Cunningham’s position to his prejudice.
Meeting of 18 May 2020
The applicants alleged that Mr Cunningham was told to attend a further meeting with representatives of Unilever on 18 May 2020. He and his wife, along with an AMWU organiser, Mr Stewart, and an AMWU delegate, Mr Blom, attended by videoconference. During the meeting:
(a)Mr Stewart raised a dispute on Mr Cunningham’s behalf pursuant to cl.28 of the EA in relation to Unilever’s decision to undertake the investigation and to impose the stand down; and
(b)Mr Stewart noted the “status quo” provision found at cl.28(h) of the EA that prevented Unilever from taking any further action against Mr Cunningham whilst discussion were ongoing between the parties.
The applicants alleged that after 18 May 2020, Mr Cunningham received correspondence which advised that Unilever had decided to:
(a)issue him with a final written warning;
(b)move him to the “B Shift” effective 21 May 2020; and
(c)remove him from the role of line co-ordinator effective immediately.
The applicants alleged that the final warning, the shift move and his removal from the role of line co-ordinator amounted to adverse action under the FW Act because they:
(a)injured Mr Cunningham in his employment; and
(b)altered Mr Cunningham’s position to his prejudice.
The applicants alleged that Unilever took the adverse action against Mr Cunningham, in its various forms, because he had exercised workplace rights as referred to earlier.
Relief
The applicants sought the following relief:
a.a declaration that Unilever contravened s.340 of the FW Act;
b.an order for compensation, payable to Mr Cunningham, pursuant to s.545 of the FW Act;
c.an order imposing a pecuniary penalty upon Unilever, payable to the AMWU, pursuant to s.546 of the FW Act;
d.interest pursuant to s.547 of the FW Act;
e.costs; …
RESPONDENT’S DEFENCE
Unilever denied having contravened the FW Act. It:
(a)admitted that on 17 April 2020 Messrs Cunningham and Herrera Garcia had a conversation in which Mr Cunningham expressed his opinion as to the operation and staffing of the RIA 2 production line, but denied that that amounted to a workplace right;
(b)alleged that on 20 April 2020, Mr Herrera Garcia provided Mr Cunningham with a printed record of his workplace attendance and questioned the duration of breaks he had taken;
(c)admitted that on 11 May 2020, Mr Cunningham attended a meeting with Ms Holborow, Mr Herrera Garcia and Mr Roach at which he was advised by Mr Roach that an investigation would be conducted into allegations that he was guilty of misconduct and would be stood down on full pay; and
(d)admitted that a further meeting occurred on 18 May 2020 after which Mr Cunningham was given a final written warning, moved to the “B shift” and removed from the role of line co-ordinator.
LEGISLATION AND ENTERPRISE AGREEMENT
Fair Work Act
Section 340(1) of the FW Act relevantly provides that an employer must not take adverse action against an employee because the employee has a workplace right which they have exercised. Section 341 relevantly defines workplace right as follows:
341 Meaning of workplace right
Meaning of workplace right
(1) A person has a workplace right if the person:
(a)is entitled to the benefit of, or has a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body; or
(b)is able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument; or
(c) is able to make a complaint or inquiry:
(i)to a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrument; or
(ii)if the person is an employee—in relation to his or her employment.
…
Section 342(1) relevantly provides that an employer takes adverse action against an employee if:
The employer:
(a)       dismisses the employee; or
(b)      injures the employee in his or her employment; 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.
Section 361 of the FW Act relevantly provides:
361 Reason for action to be presumed unless proved otherwise
(1) If:
(a)in an application in relation to a contravention of this Part, it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and
(b)taking that action for that reason or with that intent would constitute a contravention of this Part;
it is presumed that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise.
…
Work Health and Safety Act
At all material times the Work Health and Safety Act 2011 (NSW) (“WHS Act”) relevantly provided:
19 Primary duty of care
(1) A person conducting a business or undertaking must ensure, so far as is reasonably practicable, the health and safety of—
(a) workers engaged, or caused to be engaged by the person, and
(b) workers whose activities in carrying out work are influenced or directed by the person,
while the workers are at work in the business or undertaking.
(2) A person conducting a business or undertaking must ensure, so far as is reasonably practicable, that the health and safety of other persons is not put at risk from work carried out as part of the conduct of the business or undertaking.
. . .
68 Powers and functions of health and safety representatives
(1) The powers and functions of a health and safety representative for a work group are:
(a)to represent the workers in the work group in matters relating to work health and safety; and
(b)to monitor the measures taken by the person conducting the relevant business or undertaking or that person’s representative in compliance with this Act in relation to workers in the work group; and
(c)to investigate complaints from members of the work group relating to work health and safety; and
(d)to inquire into anything that appears to be a risk to the health or safety of workers in the work group, arising from the conduct of the business or undertaking.
…
Enterprise Agreement
Relevantly, the EA provided:
7. MANNING LEVELS
Guideline manning levels for production and non-production shifts are defined in Appendix H.
…
16 MEAL BREAKS
Employees working the 12 hour shift pattern will have three paid breaks. The breaks will be of 20-minute duration including clothing change time from any of the time in attendance registration points (Kronos). Breaks will be staggered throughout the 12 hour shift. The second and third breaks will not be taken within two hours of the previous break.
Employees will have access to personal breaks throughout the shift, which will be self-managed and covered. A Fatigue Management Policy will be developed and implemented by negotiation and agreement with the Delegates Committee.
…
APPENDIX H – MANNING LEVEL GUIDELINES
Unilever is always committed to providing a safe workplace for all employees.
The company will ensure that at all times, appropriate numbers of trained employees are rostered for the operations as required.
Crewing for rostered production shifts
When considering crewing for production shifts, the current production lines will have the following numbers allocated to them:
Ria 1 -3
Ria 2-3
Stick 1-4
Stick 2-4
Spiral-3
These numbers are considered safe for continuous full speed operation of these production lines, whilst ensuring all operators operating these lines can be relieved from the production line for all meal breaks. There will be pool of break relief / internal logistic operators of 1 for every 6 operators / packers on the production floor.
The company will ensure a minimum of 12 FPPT employees will be engaged to cover leave and absenteeism across the site 12 FPPT employees in total to cover leave and absenteeism.
In addition to these numbers are the packer roles, which will be 3 per crew when running 4 lines. The packers will, where practical rotate between packing roles and back end operation roles, which may be at one production line, or across multiple production lines. This will ensure that no operator is in a manual packing or product checking role for more than 15 minutes at a time.
There is also scope to roster above this number when a shift has a combined workload which is beyond what is capable from the standard rostered crew.
In the event that crewing cannot be provided up to what would be considered an appropriate level of cover for the continued and maximised operation of the plant or part of a plant, the company will consider how and if the plant may operate in a modified way, but at all times ensuring that a safe workplace is maintained.
Such modified ways, may include, but are not limited to:
- Running the line / equipment at a slower speed.
- Stopping the line / process or part thereof for breaks and the entire team/ crew may take breaks at the same time.
- Off load some of the task to semi-skilled / partially trained employees if this will assist in the continuous safe operation of the process.
When considering such alternate operational modes, the work force directly impacted will be consulted in determining the best way to proceed.
In the event that an employee feels that any task for which they are being asked to perform is unsafe, they should immediately seek relief from the line to discuss this with their Technical Line Leader, Shift Supervisor, Shift Leader or HSR in an attempt to resolve the issue.
…
APPLICANTS’ EVIDENCE
Shane Cunningham
Mr Cunningham was employed by Unilever in 2012 as a Level 4 Ice Cream Maker and since 2019 had also been a line co-ordinator, a position created to provide leadership on the line.
Manning requirements for the ‘RIA 2’ production line
Mr Cunningham deposed that Unilever’s Minto factory had a number of production lines and that he worked on the RIA 2 production line. The sequence of work performed on the production line was:
(a)one operator ran the front end where the liquid mix was frozen and then shaped into the ice cream;
(b)another operator ran the middle to make sure the ice cream was wrapped correctly, and that the line did not jam;
(c)a packer or operator performed quality assurance before the product was boxed. Packers are not qualified to work elsewhere on the production line. The packer or operator must rotate in this role every 15 minutes to mitigate the risk of repetitive strain injury; and
(d)the last operator ran the end of the line to make sure that the ice cream was boxed, sealed and dated.
According to Mr Cunningham, if there were only three operators and one packer, the workers would not be able to take breaks without stopping the line or compromising its safe operation. He said that the line required five workers to avoid the need to stop production for workers to take breaks. Workers were entitled to 3 breaks, between 7:00am-9:00am, 11:00am-1:00pm and 3:00pm-5:00pm, and could decide amongst themselves when they were taken. In cross-examination Mr Cunningham agreed that part of his role as line co-ordinator was leadership and setting the standard, which included break management on the line.
Events of April 2020
Mr Cunningham deposed that on 17 April 2020, he was working on the RIA 2 production line with three other operators: Mr Doyle, Mr Aldred and Ms Coughin and that between 6:00am and 8:30am, Mr Doyle and Mr Aldred or Ms Coughlin said that they had spoken to Mr Herrera Garcia about needing another operator so breaks could be taken and Mr Herrera Garcia had replied that he was “getting someone”. Mr Cunningham deposed that a packer came to assist at 8:30am, but was not qualified to work on the production line other than on quality assurance and had to rotate between production lines every 15 minutes. As a result, after 15 minutes the RIA 2 line would become undermanned. Mr Cunningham deposed that he took the view that the production line should be stopped so everyone could take a break. This was common practice when a line was understaffed and he typically sought the manager’s permission first. He walked over to Mr Herrera Garcia and they said:
Mr Cunningham: We need another operator. We should stop RIA 2 for a first round of breaks so we can catch up on overall breaks.
Mr Herrera Garcia: Why? The line is running good and you and Lynden have been talking for an hour and I have been watching you. I strongly recommend you don’t stop the line, just send two people on a break.
Mr Cunningham: It’s breaching safety protocols.
As a result of the conversation, he sent two operators for a break, leaving the RIA 2 line undermanned, increasing the risk of injury, jamming and stoppages. Mr Cunningham deposed that undermanning that day had only been an issue in the morning because a rotating packer came on shift at approximately 11:00am and assisted the RIA 2 line for the rest of the day.
Custom and practice of taking breaks

Mr Cunningham deposed that he worked 12 hour shifts with three staggered breaks, two being for 20 minutes and one for 30. Employees had the discretion to choose which one of the three breaks was for 30 minutes.
Mr Cunningham deposed that he had witnessed numerous employees take breaks for up to 40 minutes and that as a line co-ordinator, he often took shorter breaks or not at all to ensure everyone else had taken breaks and to keep team morale high. He deposed that before these events he had never been told of any issues regarding his break times.
Breaks taken by Mr Cunningham
Unilever’s time keeping records annexed to Mr Cunningham’s first affidavit recorded that on 17 April 2020, on a shift that ran from 5:30am to 5:40pm, he took the following breaks:
9:15am – 9:50am        (35 minutes)
11:55am – 12:33pm     (38 minutes)
3:35pm – 4:26pm        (51 minutes)
Mr Cunningham conceded in cross-examination that, by taking a 35 minute break from 9:15am to 9:50am, he was not concerned about safety.
Mr Cunningham deposed that on 20 April 2020, there was a major breakdown, which stopped the production line for over an hour, and that he and Mr Doyle went on break in the upstairs canteen area while it was fixed. It was Mr Cunningham’s evidence that while in the break room, Mr Herrera Garcia approached him and Mr Doyle and handed each of them a time keeping printout with certain times highlighted in red, indicating where he had allegedly taken breaks without clocking out. Mr Herrera Garcia then said:
Mr Herrera Garcia: Here, I’ve printed these out, take a look at them. You guys need to improve on your breaks.
Mr Cunningham: Did anyone else get these?
Mr Herrera Garcia: No, just you and Lynden.
Because he and Mr Herrera Garcia had not always seen eye to eye on how some work was performed, and because he had never been disciplined for conduct or performance issues before, Mr Cunningham said to Mr Herrera Garcia that “this feels like a targeted attack”. In cross-examination he said that it felt that way because many people took excessive breaks, but only he and Mr Doyle had received a printout of their breaks.
Mr Cunningham deposed that he only became aware that his break times were an issue on 20 April 2020 when Mr Herrera Garcia handed him and Mr Doyle copies of their Kronos timesheets.
Mr Cunningham deposed he and Mr Doyle returned to the production line and, while it was being repaired, reviewed their spreadsheets. Mr Herrera Garcia came over and pointed out occasions when Mr Cunningham’s breaks had been too long. Mr Cunningham deposed that he and Mr Herrera Garcia then said:
Mr Herrera Garcia: This wouldn’t be happening if you didn’t question me about manning and stopping the line for the first break.
Mr Cunningham: I knew this was targeted.
Events of May 2020
Mr Cunningham deposed that on 11 May 2020 Mr Herrera Garcia told him he had a meeting with HR. He went to the meeting at 6:00pm at which Mr Herrera Garcia, Ms Holborow and Mr Roach were present. Mr Cunningham deposed he brought Mr Ollerton as a support person. The following conversation took place:
Mr Roach:You’ve had time to improve your breaks. Since the time Pablo talked to you and gave you the timesheet until now, you haven’t improved on your breaks. Can you tell me why? Why are you taking longer breaks?
Mr Cunningham: If you look at the timesheet, my breaks are nowhere near as bad as some other people. Managers talk to me all the time for ages going to and from a break, so it appears that I am taking a longer break that what the timesheet reflects. Sometime I don’t even take breaks, or I sacrifice breaks to make sure the line keeps going. I know other people are taking longer breaks than what I ever have.
Mr Roach:Every time you leave the floor, do you clock off and then back on?
Mr Cunningham: Yes, I do.
Mr Roach:I’ll have to review the camera footage.
After a break the conversation continued:
Mr Roach:What can you do to improve your break times?
Mr Cunningham: A shift change will fix it instantly. This is all happening because of a safety incident that I raised with Pablo a couple of weeks ago. The issue of break times has all come as a result of this.
Mr Roach:That’s a serious allegation, are you sure you want to go ahead with that?
Mr Cunningham: Yes, I’ve got everything written down.
Mr Roach: Can I have a copy of it?
Mr Cunningham: No, you can’t. I don’t have it on me. I’m going to have to contact a union delegate.
Mr Roach:Ok, we are suspending you pending an investigation into gross misconduct.
Mr Cunningham deposed that he had not said at that meeting that he did not like Mr Herrera Garcia and that he could not do his job properly.
Mr Cunningham deposed that on 18 May 2020, accompanied by his wife, he attended a meeting with Mr Stewart and Mr Blom of the AMWU and Mr Roach at which the following was said:
Mr Stewart:… I want to know why Shane was suspended first and Lynden wasn’t.
Mr Roach:I’m not here to talk about Lynden – they are two separate cases.
Mr Stewart:Not really, they were handed pieces of paper at the same time and I’m not willing to talk anymore, unless you’re willing to tell me why Shane was suspended and Lynden wasn’t.
Mr Roach:Well, I’m not going to talk about it.
Mr Stewart:If you don’t want to talk about that, then I don’t want to continue with this meeting. I am invoking the dispute resolution clause under the enterprise agreement to make sure whilst this investigation is ongoing Shane is getting paid.
The meeting ended shortly after.
Outcome of investigation
Mr Cunningham deposed that after the meeting on 18 May 2020 Mr Roach sent him an email which attached a letter confirming he would receive a final written warning, be moved to another shift and cease acting as a “Technical Coordinator” from 21 May 2021. It was Mr Cunningham’s evidence that on 25 October 2020, he was reinstated to line co-ordinator and that the final written warning lapsed on 18 May 2021 in accordance with cl.33 of the EA.
Impact of the Respondent’s decision on Mr Cunningham
Mr Cunningham deposed that while not working as a line co-ordinator he lost approximately $250 per week and feared that Mr Roach and Mr Herrera Garcia were targeting him. On some occasions he also felt anxious before a shift and could not sleep. Mr Cunningham deposed that he lost confidence and would second guess himself about his work. He felt embarrassed when other employees questioned why he was no longer a line co-ordinator and had become concerned that showing any initiative or prioritising safety would result in further disciplinary action.
Lynden Doyle
Mr Doyle was employed by Unilever as a Level 5 Ice Cream Maker.
Mr Doyle deposed that one morning in April 2020 he was working on the RIA 2 production line with Mr Cunningham, Mr Aldred and Ms Coughin and they agreed that they were short staffed and needed another person on the line so breaks could be taken on a rotational basis. It was Mr Doyle’s evidence that he and Ms Coughin spoke to Mr Herrera Garcia about obtaining another employee to assist and were both told that he was “working on it”. He then asked Mr Cunningham as line co-ordinator what should be done. Mr Doyle deposed that Mr Cunningham had told him he would speak to Mr Herrera Garcia about how they were undermanned. When Mr Cunningham returned he said:
Mr Cunningham: I asked Pablo whether we should stop the line so everyone can take breaks. Pablo said ‘don’t stop the line and just send two people on a break at the same time.’ I told Pablo that that goes against our safety policy. Pablo then said ‘I’ve been watching you guys on the line talking for an hour – the line is running fine I don’t want to stop it.’
Mr Doyle:Regardless of whether the line is running well, you can’t run it undermanned – it goes against safety.
Mr Cunningham then sent two people on break in accordance with Mr Herrera Garcia’s directions. Mr Doyle’s oral evidence was that he and Mr Cunningham stayed on the line.
Mr Doyle deposed that a couple of days later there was a major breakdown on the RIA 2 line that lasted at least one hour. While waiting for the line to be fixed, with no work to do, he and Mr Cunningham took a break and went to the upstairs canteen. After about 10 minutes Mr Herrera Garcia approached and handed them printouts from the timekeeping system and said:
Mr Herrera Garcia:    You’re getting these because you need to improve on breaks.
Mr Cunningham:      Did anyone else get these?
Mr Herrera Garcia:    No, just you and Lynden.
Mr Cunningham:      This feels like a targeted attack.
Mr Herrera Garcia:    No, it’s not.
Mr Doyle said that he knew his break times were excessive but felt that it was a targeted attack against Mr Cunningham because he had had a disagreement about stopping the line.
Shortly after, while he and Mr Cunningham were back on the production floor waiting for the line to be fixed, Mr Herrera Garcia approached and they asked him to explain the timesheets. After explaining aspects of the time records, Mr Herrera Garcia said:
Mr Herrera Garcia: This wouldn’t be happening if you didn’t question me about stopping the line.
Mr Cunningham: I knew this was targeted.
On 11 May 2020 Mr Doyle had a meeting with Mr Roach and others at which he agreed that his break times had been extremely excessive and had said that if given a chance would do better. He agreed that he was given that chance.
Christopher Aldred
Mr Aldred worked at Unilever as a Level 3A Ice Cream Maker. He deposed that one day he saw Mr Cunningham and Mr Doyle returning from a break each holding a piece of paper and one of them explained that Mr Herrera Garcia had given them printouts of their timesheets. It was Mr Aldred’s evidence that, shortly after, Mr Herrera Garcia approached to explain the issues of break times. Mr Aldred was no more than 4 metres away when he overheard the following:
Mr Cunningham: Why are you doing this? You don’t go up to anyone else and question them about their breaks.
Mr Herrera Garcia: I wouldn’t be doing this if you didn’t come up to me and talk about stopping the line.
It was Mr Aldred’s evidence that it was common for him to see various employees take breaks beyond what was allowed under the EA while on some days Mr Cunningham would take no break at all.
Patrick Ollerton
Mr Ollerton, a Level 3 Ice Cream Maker with Unilever, deposed that in 2020, as a support person he attended a disciplinary meeting involving Mr Cunningham. The meeting also included Mr Roach, Ms Holborow and Mr Herrera Garcia. The purpose of the meeting was to talk about Mr Cunningham allegedly taking excessively long breaks. In the meeting Mr Cunningham said:
The only reason the issue around breaks has come up is because I told Pablo that it was dangerous and unsafe to run RIA 2 short without stopping for breaks. Pablo printed out the Kronos timesheets about the break times after I told him it was unsafe to run the line short. The only reason Pablo brought the issue of breaks up was because Pablo did not like that I told him how to run the line.
Mr Roach appeared surprised and stated that that was “a completely separate issue” and not the purpose of the meeting. Ms Holborow then told Mr Cunningham he was suspended from duties pending an investigation.
RESPONDENT’S EVIDENCE
Pablo Herrera Garcia
During the relevant period Mr Herrera Garcia was employed by Unilever as a shift supervisor [1][5] He deposed that he was aware of the EA and its Manning Level Guidelines.
In cross-examination Mr Herrera Garcia agreed that Mr Cunningham was made line co-ordinator because he was considered a responsible employee, could be entrusted to comply with the arrangements under appendix H of the EA and would promote safety.
Mr Herrera Garcia deposed that he would frequently discuss with operators the staffing of production lines and would also respond to any unexpected stoppages. Because of the cost of down time and potential wastage, shutting down a production line was a serious operational decision. Operators were expected to seek approval from a shift supervisor before shutting down a production line.
17 April 2020
Mr Herrera Garcia deposed that on 17 April 2020 Mr Cunningham approached him about sourcing an operator for the RIA 2 line. Later, they had the following conversation:
Mr Cunningham: We are going to stop the line so we can take our breaks.
Mr Herrera Garcia: There is no need to stop the line. You can send one or two people at a time to take their breaks, it will be ok, but I will leave it with you as the leader. If you need to stop, then stop, I don’t have an issue and you can always cross people from RIA 1 to RIA 2. There is no need to stop, you have plenty of people.
Mr Herrera Garcia conceded in cross-examination that Mr Cunningham did not say that he was going to stop the line, but instead asked whether he could,but had also not said to him that protocols were being breached, “protocol” not being a word he had ever heard Mr Cunningham use at work. Mr Herrera Garcia denied that the RIA 2 line had been “undermanned” or that permitting the operators to take their breaks would result in it being so.
In cross-examination Mr Herrera Garcia agreed that the decision to stop a line could only be made by the shift supervisor or plant manager and that the line co-ordinator did not have the unilateral power to stop the line, although he said a line co-ordinator could, if a shift manager was not in place, stop the line if he saw an unsafe situation. He said that he gave Mr Cunningham “the opportunity to look around, as RIA 1 … was finishing the run and it started changeover” and told him that:
there is no need to stop, because you have plenty people – look around – but I leave it with you.
Mr Herrera Garcia was taken to Mr Cunningham’s affidavit of 21 September 2021 which annexed an extract of the records of Unilever’s production lines showing that from 14 April 2020 to 18 April 2020 only RIA 2 was operating and not RIA 1. In response Mr Herrera Garcia said if a line was not running, it meant that there were maintenance people working on it and they could have filled in on RIA 2.
20 April 2020
Mr Herrera Garcia deposed that the Minto site had an extensive network of CCTV cameras as well as a fingerprint entry / exit mechanism to log employees’ movements. The system was installed because historically Unilever had had difficulty with employee compliance with the permitted break periods. Mr Herrera Garcia deposed that employees, including Messrs Cunningham and Doyle, had not always adhered to the break times and he had spoken to Mr Cunningham about this in the past. He had also checked on other employees and had spoken to those who had been taking longer breaks. He agreed that although long breaks were a wide issue on site, he was not aware of anyone being disciplined after 11 May 2020 on that account.
Mr Herrera Garcia deposed that during the night shift of 20 April 2020 he was approached by Mr Roach, who said:
Mr Roach:What is Lynden doing? He has been in the canteen for a long period of time. Can you check the scan out / scan in records for the Production Hall and see what is going on?
Mr Roach did not refer to any other employees.
Mr Herrera Garcia deposed that he accessed the time keeping system and discovered that on 20 April 2020 neither Mr Doyle nor Mr Cunningham had scanned out of the production hall, supporting Mr Roach’s observation that Mr Doyle was taking extended breaks. He reported this back to Mr Roach who directed him to raise it with them directly. His stated preference was to have “an informal discussion” as it would “get a better outcome”, but Mr Roach thought that “if they are both not scanning out, then you have to treat them the same and on the merits. You need to investigate both of them”.
Mr Herrera Garcia printed off Messrs Cunningham and Doyle’s time records which he gave them in the canteen, telling them that they needed to improve their break management. Mr Herrera Garcia denied that Mr Cunningham said to him that “this feels like a targeted attack”. Whilst Mr Herrera Garcia acknowledged that Mr Cunningham approached him later in the shift with questions about the spreadsheet, he denied that Mr Cunningham had said he was or had been targeted.
Disciplinary Meeting – 11 May 2020
Mr Herrera Garcia deposed that on 11 May 2020 he was invited to attend two meetings, one with Mr Cunningham and another with Mr Doyle, to address their break management. The meeting with Mr Cunningham was broken up into a number of separate discussions; he only attended the first part and did not speak. He deposed that during the part he did attend, Mr Cunningham said “I feel this is a targeted attack” and that he did not think Mr Herrera Garcia did his job properly. After Mr Roach asked Mr Cunningham a number of questions, the latter said “this is a direct retaliation from the safety incident”. Mr Herrera Garcia deposed that Mr Roach then paused the meeting to ask about the allegations. When asked about Mr Cunningham’s complaint, he responded “I don’t know what he is talking about”. Mr Roach then told him that he did not “need to be in the next part of the meeting”.
Mr Herrera Garcia agreed that he was not required to provide a written statement or written response in relation to Mr Cunningham’s complaint and was not aware if anyone else had been. He also agreed that Unilever would investigate a complaint about a safety incident raised by an employee, but said that no safety incident was raised in Mr Cunningham’s complaint. He said that Mr Cunningham’s complaint had concerned a lack of operators, not a safety incident. He said that working on the RIA1 line, which was not running that day, there were fitters who were also operators and they had been available to assist and he had said as much to Mr Cunningham. Mr Herrera Garcia’s evidence was that Mr Cunningham “had plenty of people”.
Mr Herrera Garcia deposed that he did not participate in the meeting on 20 May 2020 and was not involved in issuing the warning letter or the decision to change Mr Cunningham’s role.
Robert Roach
Mr Roach was plant manager of Unilever’s Minto plant during the relevant period. He deposed that in that role he was responsible for, amongst other things:
(a)ensuring compliance with occupational health and safety legislation;
(b)maintenance of relevant food safety standards;
(c)overseeing crewing requirements on a day to day basis;
(d)planning and allocating labour, including ensuring that rostering of staff met productions requirements;
(e)monitoring workplace health and safety issues; and
(f)employee counselling and termination of employment.
Mr Roach deposed that when a line was stopped, productivity was reduced and there was a greater potential for wastage which was why, unless there was an emergency or breakdown, management approval was required for a stoppage. [11] The final decision to stop a production line rested with him or the shift leader. [12]
20 April 2000
Mr Roach deposed that on 20 April 2020, he saw Mr Doyle in the canteen for what appeared to be extended periods of time. He drew this to the attention of Mr Herrera Garcia and asked him to check the electronic records. Mr Herrera Garcia reported back that both Mr Doyle and Mr Cunningham had failed to scan out of the production hall. Mr Roach deposed that, at that time, he did not know that Mr Cunningham might also have been taking a longer break on 20 April 2020. He further deposed that when he asked Mr Herrera Garcia to check the time records he had not been aware of the 17 April 2020 discussions between Mr Herrera Garcia and Mr Cunningham and had not been involved with any request that day to stop the RIA 2 line or with any decision by Mr Herrera Garcia that it continue operating. He did not learn of any related exchange between Mr Herrera Garcia and Mr Cunningham until the meeting on 11 May 2020.

It was Mr Roach’s evidence that it appeared from the electronic records that, even though the time keeping system recorded that Mr Cunningham and Mr Doyle had not left the production hall, in fact they had both been in the canteen for extended periods, meaning that they had not scanned out of the production hall, which was a breach of policy. Mr Roach instructed Mr Herrera Garcia to raise with Mr Cunningham and Mr Doyle his concern about their meal breaks. He recalled Mr Herrera Garcia initially resisted, saying:
Mr Herrera Garcia: I have already had discussions with Shane about his poor break management. I think I could get a better outcome with Shane by just being less formal.
Mr Roach:No, both individuals need to be treated the same and on their merits. An investigation should take place with respect to both of them.
He left it to Mr Herrera Garcia to discuss with Mr Doyle and Mr Cunningham his concerns and was not involved in the preparation of the documents that Mr Herrera Garcia gave them later that day.
Disciplinary meeting – 11 May 2020 – Mr Cunningham
Mr Roach deposed that on 11 May 2020, separate meetings were organised with Mr Cunningham and Mr Doyle to discuss his concerns. In attendance at the former was Mr Herrera Garcia, Ms Holborow, Mr Ollerton, Mr Cunningham and himself. As the plant manager he ran the meeting and Mr Herrera Garcia did not contribute at any point
Mr Roach deposed that during the meeting, Mr Cunningham:
(a)appeared initially to feign ignorance of the information Mr Herrera Garcia had provided to him;
(b)responded to the allegation with “Ok well I am [taking excessive breaks] but so is everyone”; and
(c)admitted that he had taken longer breaks.
Mr Roach deposed that it did not appear to him that Mr Cunningham was taking Unilever’s concerns seriously. When admitting that he had taken longer breaks, Mr Cunningham went on to say:
Mr Cunningham:    Yeah, I said I've taken longer breaks, you know what, I feel this is a targeted attack, I've got information to prove that, but I’ll keep that to myself at the moment.
Mr Roach:I'm not sure how you could possibly suggest this is targeted, I can tell you that Pablo actually approached me about this and asked if he could manage it himself, he felt he could get a better response from you, but it was me who told him we must follow the same process that has been used for other people who have abused the breaks on site.
Mr Cunningham:    I still feel this is targeted.
Mr Roach:The facts [sic] is, you have taken seriously excessive amounts of breaks, you know that you can have 70 minutes, plus small personal breaks, which all need to be accounted for in [the time keeping system], but looking at just the last 2 months, you have taken 1hr 43, 2hrs, 1hr 49, 1hr 42, 2hrs 4mins and since Pablo spoke to you, after you told him you would improve, 1hr 54, 1hr 39. It just hasn't got better, can you explain this?
Mr Cunningham:    No explanation for that.
Mr Roach:And are all you breaks accounted for by the scanning system, or have you taken even more than what is recorded?
Mr Cunningham:    About 90% of the time.
Mr Roach:So you’re saying that you only clock in and out 90% of the time?
Mr Cunningham:    Sometimes you forget.
Mr Roach:Shane, this doesn’t make sense, as there are no times where you have clocked out and forgotten to clock in and no examples where you have forgotten to clock out and forgot to scan in. This is very strange that each time you forget, you forget both in and out. I have trouble believing that when you fail to clock in and out 10% of the time, that you forget.
Mr Cunningham:    Why are you saying 10%?
Mr Roach:Because you said you clock in and out 90% of the time.
Mr Cunningham:    I only said that to cover my arse.
Mr Roach:What we need to work out is if we can move past this and get to a place where you can work with Pablo, follow instructions and follow the requirements of the job.
Mr Cunningham:    No, I don’t like Pablo, he can’t do his job properly. He told me that this is retribution from a safety incident that was raise [sic] the previous day.
Mr Roach:So you’re making a very serious claim that this was retribution for raising a safety complain?
Mr Cunningham:    Yes.
Mr Roach:And he used the word retribution?
Mr Cunningham:    No, he said “This is a direct retaliation from the safety incident”.
Mr Roach deposed he then left the room with Ms Holborow and Mr Herrera Garcia to consider the allegations made about Mr Herrera Garcia. He asked Mr Herrera Garcia whether he had, as Mr Cunningham alleged, said that Unilever’s interest in his break history was “a direct retaliation from the safety incident” but he denied it and appeared quite upset. Mr Roach deposed that upon his return to the meeting, which was without Mr Herrera Garcia because of “how upset he was with the accusation”, the conversation continued:
Mr Roach:Anything else you want us to consider?
Mr Cunningham: At the end of the day, I want to keep my job. You know the line leader role is not working out for me, if I can drop the role and go back to being an operator and maybe a shift swap. I am willing to try harder, I want to keep my job.
Mr Roach:So we will be conduction a full and fair investigation into your break management. As part of this, we will be reviewing CCTV footage to see if there is time fraud on top of the time theft. I suggest you consider your next round of responses and what we may discover.
Mr Cunningham: What do you mean by theft, I haven’t stolen, I clocked out every time?
Mr Roach:Abusing break time like this is time theft, if there are additional breaks taken where you have intentionally not registered the breaks, that would be fraud as well.
A second break was taken and Mr Roach’s notes recorded:
Claire and I decided that given the indifferent and passive/aggressive manner in which he conducted himself in the first stage and the claims made about Pablo, it was not a tenable situation to have him remain on site.
Upon returning to the meeting Mr Roach said:
Mr Roach:Shane, given the serious nature of the misconduct being investigated and the response given here tonight, we have made a decision to stand you down on full pay while we conduct a full and fair investigation.
Mr Roach deposed that on 11 May 2020 he issued Mr Cunningham with a “stand down” letter. In cross-examination he said:
… he had made it clear that he wouldn’t be able to have a working relationship with Mr Garcia and that he had, in previous conversations to me, requested that he – whether the changing shift would be, you know, would – would benefit him.
In cross-examination Mr Roach agreed that he had said that he would investigate and formalise Mr Cunningham’s complaint, but never did come back to Mr Cunningham about formalising the complaint, nor did he ever take any further steps to look into Mr Cunningham’s purported safety incident and investigate the complaint. He also agreed that generally if an employee raised a complaint or very serious claim Unilever would investigate it.
Mr Roach said that the “Manning Level Guidelines” set out in appendix H to the EA were just that, guidelines and that, in any event, his recollection was that the line could run with 4 employees although safety risks on a production line would potentially be amplified if it did not have the full complement of operators and packers. He agreed that if an employee was concerned about the safe operation of the line they ought to raise their concern.
In cross-examination Mr Roach denied having stood Mr Cunningham down because he had raised a safety issue involving Mr Herrera Garcia on 17 April 2020. He also denied that the phrase “the claims made about Pablo” written in his notes of the 11 May 2020 meeting referred to the claims Mr Cunningham had made about a purported safety incident on 17 April 2020, saying that it referred to Mr Cunningham’s statement that he did not “like Pablo, he can’t do his job properly” when asked whether he could continue to work with Mr Herrera Garcia.
Disciplinary meeting – 11 May 2020 – Mr Doyle
Mr Roach deposed that he also attended a meeting with Mr Doyle on 11 May 2020 and recalled that he had been very open, accepting that fact he had not scanned in or out, not complied with the expectations and had taken longer, unauthorised breaks. He was apologetic and said he would do better. Mr Roach deposed that he was satisfied with Mr Doyle’s responses and was prepared to issue him with just a warning letter.
Disciplinary meeting – 18 May 2020 – Mr Cunningham
Mr Roach deposed that on 18 May 2020 he conducted by phone a second meeting with Mr Cunningham. Mr Herrera Garcia did not participate and although Ms Holborow was present, she did not contribute. Mr Stewart, an AMWU organiser and Mr Blom, a union delegate dialled in. The following was said:
Mr Roach:Ok, we are here today to give Shane an opportunity to respond to the allegation of gross misconduct.
Mr Stewart:I’ll go first, I want to know why Shane was suspended and Lynden wasn’t.
Mr Roach:You know that we can’t talk about different outcomes. We are not here to talk about Lynden. They are two separate matters.
Mr Stewart:We are not willing to talk anymore unless you’re willing to tell me why Shane was suspended and Lynden wasn’t.
Mr Roach:Well I am not going to talk about that matter (Lynden). We are here to talk about Shane’s matter.
Mr Steward: Well if you are not prepared to talk about it, then the meeting won’t continue. We’re invoking the dispute procedure under the enterprise agreement and we will be making sure that Shane continues to get paid.
Mr Roach:Ok, well that’s the end of the meeting then.
Mr Roach felt that Mr Cunningham had not taken advantage of the further opportunity to explain his actions and was satisfied that there was information sufficient to make a finding of misconduct, although he did not feel it was appropriate to terminate Mr Cunningham’s employment. Mr Roach sent an email and later issued a warning letter signed by Ms Holborow to Mr Cunningham and determined that he would return to work on 21 May 2020. Mr Roach deposed that he felt Mr Cunningham had not shown enough respect to Mr Herrera Garcia, noting his statement at the meeting on 11 May 2020 that he did not want to be under Mr Herrera Garcia’s direct management. Mr Roach determined that Mr Cunningham should not work on Mr Herrera Garcia’s shift and should work on a different shift instead.
Mr Roach deposed that a key deliverable of the line co-ordinator position was to be actively involved in break management and a person in that role should demonstrate and model appropriate behaviour with respect to break management and compliance. As he determined Mr Cunningham had engaged in misconduct, he removed him from that role.
In cross-examination Mr Roach disagreed that his decision to move Mr Cunningham to a shift away from Mr Herrera Garcia was because of the events of 17 April 2020 and said that Mr Cunningham’s inability to find a way past his dislike of Mr Herrera Garcia and his belief that Mr Herrera Garcia could not do his job properly formed part of his decision.
CONSIDERATION
Issues
The issues presented by this case are whether:
(a)Mr Cunningham exercised a workplace right;
(b)Unilever took adverse action against Mr Cunningham in the manner alleged; and
(c)any such adverse action was taken because Mr Cunningham had exercised a workplace right.
Exercise of a workplace right
The applicants contended that Mr Cunningham had exercised a workplace right protected by s.340 of the FW Act when he said to Mr Herrera Garcia on 17 April 2020, to quote the applicants’ outline of opening submissions:
(a) that, given the workload, there were not enough operators available for the RIA 2 production line such that breaks could be taken (pursuant to clause 16 of the Enterprise Agreement) and compliance maintained with the "Manning Levels Guidelines" (pursuant to clause 10 and Appendix H of the Enterprise Agreement); and
(b) that, therefore, the RIA 2 production line should be temporarily stopped so as to facilitate a break for the entire team at the same time.
However, Mr Cunningham’s evidence was that something different had been said, namely:
Mr Cunningham: We need another operator. We should stop RIA 2 for a first round of breaks so we can catch up on overall breaks.
Mr Herrera Garcia: Why? The line is running good and you and Lynden have been talking for an hour and I have been watching you. I strongly recommend you don’t stop the line, just send two people on a break.
Mr Cunningham: It’s breaching safety protocols.
Mr Herrera Garcia’s ultimate version of the conversation was that Mr Cunningham had asked whether the line could be halted and that he had replied:
There is no need to stop the line. You can send one or two people at a time to take their breaks, it will be ok, but I will leave it with you as the leader. If you need to stop, then stop, I don’t have an issue and you can always cross people from RIA 1 to RIA 2. There is no need to stop, you have plenty of people.
It was submitted that the workplace rights involved were:
(a)Mr Cunningham’s entitlement to the benefits of a workplace instrument, namely:
(i)the ability under cl.16 of the EA to take breaks while working on the RIA 2 production line;
(ii)the ability under appendix H to the EA to raise a concern and/or consult about unsafe work practices on the RIA 2 production line; and
(b)his ability to make a complaint and/or enquiry in relation to his employment.
It can be accepted that Mr Cunningham was entitled under the EA to certain breaks and that making an arrangement in relation to breaks on the RIA 2 line would have affected him, presumably beneficially. However, the evidence does not persuade me that he was seeking to exercise a right to take breaks; it rather seems that he was performing his duties as a line co-ordinator by advising Mr Herrera Garcia that, in his opinion, unless an additional pair of hands was available, the line would have to be stopped in order that the crew, rather than he as an individual, could take their breaks. At no point did Mr Cunningham say that he wanted to exercise his personal right to a break.
The contended-for right to raise a concern and/or consult about unsafe work practices on the line is said to be provided by appendix H to the EA, which relevantly states:
In the event that an employee feels that any task for which they are being asked to perform is unsafe, they should immediately seek relief from the line to discuss this with their Technical Line Leader, Shift Supervisor, Shift Leader or HSR in an attempt to resolve the issue.
Mr Cunningham says that he asserted to Mr Herrera Garcia that to send two staff on a break would be contrary to “safety protocols” and submitted that, to that extent, he raised a safety issue. Mr Herrera Garcia’s evidence was that Mr Cunningham did not say anything of that sort but Mr Doyle deposed that on the day in question Mr Cunningham said to him that he had told Mr Herrera Garcia that the latter’s proposal to send two people on a break at the same time “goes against our safety policy”. On balance I conclude that Mr Cunningham had expressly raised the issue with Mr Herrera Garcia as a safety issue. However, even if he had not, the context of both versions of the conversation was that, in Mr Cunningham’s view, given the level of staffing dedicated to the line, it ought not be run when operators were on a break. The necessary implication was that it was unsafe to run the line, and to work on the line, when operators were taking breaks and that to the extent that Mr Cunningham was being asked to perform a task, namely work on the line in such circumstances, that work was unsafe. He was entitled under the EA to raise that as an issue.
The same considerations apply in relation to the third contended-for workplace right, the ability to make a complaint or enquiry in relation to one’s employment. What Mr Cunningham raised with Mr Herrera Garcia was a management issue which raised questions of safety that unavoidably involved him. As such, his conversation was one which related to his employment in the sense considered in Whelan v Cigarette & Gift Warehouse Pty Ltd (2017) 275 IR 285 at 298 [33],[34]; see also the discussion in Edgar v Norton Rose Fulbright Australia Services Pty Ltd (2022) 368 FLR 1 at 198-200 [728] – [733]. It would also seem that Mr Cunningham had a right to enquire if Unilever’s obligations under s.19 of the Work Health and Safety Act 2011 (NSW) were being observed: see Edgar v Norton Rose Fulbright Australia Services at 201 – 203 [738] – [742], 203 – 205 [748] – [753].
Adverse action
A recorded earlier in these reasons, actions said to have been taken against Mr Cunningham were alleged to have been:
(a)investigating his conduct following the 11 May 2020 meeting;
(b)standing him down during the investigation;
(c)issuing him with a final written warning;
(d)moving him to the “B Shift”; and
(e)removing him from the role of line co-ordinator.
Those actions were said to have been adverse action because they:
(a)injured Mr Cunningham in his employment; and
(b)altered Mr Cunningham’s position to his prejudice.
It was submitted that:
(a)the investigation operated to reduce the security of Mr Cunningham’s employment;
(b)the stand down left Mr Cunningham in a position less secure than the one he had been in until then;
(c)the final written warning put Mr Cunningham in a position less secure than the one he had been before he received it
(d)the shift change had detrimental impacts on Mr Cunningham’s remuneration and work enjoyment; and
(e)removal from the role of line co-ordinator caused Mr Cunningham’s remuneration to drop by $250 per week and to him losing status and responsibility.
In addresses the applicants sought to combine the shift change and the demotion from the role as line co-ordinator as a single occasion of adverse action. Notwithstanding that submission, I find that it is clearer and more logical to treat them as separate actions and to consider them separately.
The phrase “injure an employee in his or her employment” covers injury of any compensable kind and the phrase “alter the position of an employee to the employee’s prejudice” is a broad additional category which covers not only such legal injury but also any adverse affection of, or deterioration in, the advantages enjoyed by the employee before the conduct in question: Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (1998) 195 CLR 1 at 17-18. When injury to an employee in his or her employment or the alteration of an employee’s position to his or her prejudice is alleged, an assessment of the impugned conduct calls for a comparison of the position of the employee before and after the employer’s alleged acts to determine the nature of any injury or prejudicial alteration: McIlwain v Ramsey Food Packaging Pty Ltd (2006) 154 IR 111 at 198 [349] per Greenwood J. To engage the test, a prejudicial alteration must be real and substantial, rather than merely possible or hypothetical: Community Public Sector Union v Telstra Corporation (2001) 107 FCR 93 at 100 [18]. In Australian Workers’ Union v BHP Iron-Ore Pty Ltd (2000) 106 FCR 482 Kenny J said that before an injury in employment or a prejudicial alteration will be found:
… it must be possible to say of an employee that he or she is, individually speaking, in a worse situation after the employer's acts than before them; that the deterioration has been caused by those acts; and that the acts were intentional in the sense that the employer intended the deterioration to occur. (at 499 [54])
See also BHP Iron Ore Pty Ltd v Australian Workers’ Union (2000) 102 FCR 97 at 108 [35]; Unsworth v Tristar Steering and Suspension Australia Ltd (2008) 216 FCR 122 at 137 [24], 139 [31]; and Klein v Metropolitan Fire and Emergency Board (2015) 208 FCR 178 at 201 [86].
Investigation

Mr Cunningham submitted that the investigation had had the capacity to alter his position to his prejudice “because of the exposure to a potential disadvantage of imposition of a penalty if the charges [were] ultimately proven”, in which case the investigation might operate to reduce the security of his employment.
Although, Collier J said in Jones v Queensland Tertiary Admissions Centre Ltd (No 2) (2010) 186 FCR 22 at 46 [80] and 47 [82]:
It follows that, on these authorities, commencement of an investigation by an employer into conduct of an employee can in certain circumstances constitute adverse action against that employee for the purposes of s 342, either as injury or alteration of the position of the employee.
and
I do not agree that, as a general proposition, amenability to a disciplinary investigation is a “normal” incident of employment, even if the investigation is commenced in good faith and on a proper prima facie evidentiary basis.
I note, with respect, that her Honour’s views are not the only ones on the subject, although Murphy J agreed with them in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Visy Packaging Party Pty Ltd (No 3) (2013) 216 FCR 70 at 92 – 93 [101] – [103] as did Ross J in United Firefighters Union of Australia v Easy [2013] FCA 763 at [250] – [251]. For instance in Police Federation of Australia v Nixon (2008) 168 FCR 340, Ryan J said at 354 – 356 [42], [46] and [48]:
… I consider that a serious question remains as to whether the resumption of the inquiry by Biggin and Cartwright amounts to an injury to Mullett in his employment. Not every disciplinary inquiry or investigation of alleged misconduct by an employee will have that effect. For example, the inquiry may be conducted in such a way that only the affected employee and a few other persons directly involved in it are aware that it is taking place. Likewise, the subject matter or particulars of the alleged breach of discipline may, on balance, not be reasonably capable, at least before the investigation has been completed, of damaging the reputation of the employee or adversely affecting his or her standing in the workforce or among the wider community, assuming the fact of the inquiry to be so widely known.
…
In light of the conclusion just reached on “injury”, it is strictly unnecessary to consider the alternative question of whether the resumption of the EDS investigation of the Bullying Allegations can amount to an alteration of Mullett’s position as an employee of Victoria Police. However, in my view, “alteration” in this context requires a substantive change in, or reduction of, the advantages enjoyed by the employee in that capacity. Merely to be subject to a disciplinary inquiry or investigation does not, without more, constitute such a substantive change. Examples of relevant substantive changes include reduction of salary, deprivation of overtime, diversion to a less congenial shift, forced taking of leave, transfer to lower duties or suspension from duties. Some changes of this kind are expressly contemplated as being within the disciplinary regime for Victoria Police instituted by s 71 of the PRA …
…
I consider, with respect, that amenability to a disciplinary charge brought in good faith and on a proper prima facie evidentiary basis is a normal incident of employment and does not of itself, before the laying of the charge, constitute “an adverse affection of, or deterioration in, the advantages enjoyed by the employee” in the sense used by the High Court in the passage from Patrick Stevedores 195 CLR 1 quoted at [14] above. Of course, it is otherwise where the charge is made out and some deleterious consequence is visited on the employee. That is the significance of the words to which I have added emphasis in the extract from Goldberg J’s reasons reproduced at [47] above. Until the charge has been proved, the disadvantage to the employee, as his Honour acknowledged, remains merely “potential.”
His Honour’s reasons were cited with approval by Steward J in The Environmental Group Ltd v Bowd (2019) 288 IR 396 at 449 [163].
In United Firefighters’ Union of Australia v Metropolitan Fire and Emergency Services Board (2003) 123 IR 86 Goldberg J at 111 – 112 [90], [92] had said:
Although the laying of the charges and the hearing of them itself does not result in a permanent injury to an employee or an alteration of the employees’ position, I consider it to be arguable that it does expose the employees potentially to the range of penalties specified in [the relevant legislation] …
. . .
I am satisfied that there is, nevertheless, a serious question to be tried that by virtue of the laying and the hearing of the charges the position of the employees is altered to their prejudice because they are exposed to a potential disadvantage of an imposition of a penalty if the charges are ultimately proven.
In Quirk v Construction, Forestry, Maritime, Mining and Energy Union (2021) 312 IR 359, at 410 – 411 [237] – [238] Perram J discussed Goldberg J’s reasons:
For completeness, I do not accept that the laying of the summonses against Mr Quirk or Mr Miller constituted adverse action in this case. The summonses merely required them to appear to defend themselves against the charges the subject matter of which had nothing to do with their performance of their duties as organisers. Whilst the charges were pending their employment remained intact. That was not any form of injury to their employment.
Whilst it is true that in United Firefighters’ Union of Australia v Metropolitan Fire and Emergency Services Board (2003) 123 IR 86 (United Firefighters) at [89] Goldberg J accepted that there was a serious question to be tried as to whether the commencement of a disciplinary process could constitute adverse action, his Honour did not have to decide the actual question of whether it did. Further, what his Honour said at [89] was that the “laying of charges exposes an employee of the Board to a potential disadvantage in his or her employment if the charges are ultimately proven” (emphasis added). His Honour thus appeared to recognise that the actual occurrence of any disadvantage comes with the making out of charges not the laying of them. …
Having regard to the reasons of Steward and Perram JJ, which are the most recent I am aware of on the subject, I am not persuaded that an employer’s inquiry into allegations that merit investigation, if conducted in good faith and in a fair manner can, without more, amount to an injury in employment or a prejudicial alteration of position and it has not been demonstrated that this matter ought to be described in any other way. Nor was anything more demonstrated. Mr Cunningham did not lose any pay as a result of the inquiry and it is not apparent that the investigation’s existence was known beyond those who attended the 11 May 2020 meeting. It was also not shown that the investigation was damaging to Mr Cunningham reputationally. I find that the inquiry was not adverse action.
Stand down
It was submitted that the stand down made Mr Cunningham’s employment less secure but the evidence is that it was no more than consequential upon the investigation and had no particular significance of its own. Mr Cunningham was paid during the stand down, as was noted in relation to the investigation, and it was not demonstrated that, or how, his temporary absence from work was an injury in employment or a prejudicial alteration of his position. If Mr Cunningham’s employment was less secure, that was because of his conduct, not his suspension.
Final written warning
The written warning relevantly said:
Expectations regarding your conduct and behaviour
Unilever’s expectations moving forward are that you will comply with the policies and procedure and Enterprise Agreement, as well as no repeats of the behaviours discussed. Any breach of these conditions or expectations, including any breach of Unilever procedure and policies may result in further disciplinary action up to and including termination of your employment.
In Construction, Forestry, Mining and Energy Union v Coal and Allied Operations Pty Ltd (1999) 140 IR 131 Branson J said in the particular context of that case at 156 – 157 [95] – [96]:
. . . I accept the contention of the applicant that the issuing to an employee of a “written warning” of a “serious or major breach” within the meaning of the document “Disciplinary Procedure” has the effect of making the employee’s continuing employment less secure. Conduct engaged in by an employee who has received such a warning could lead to the termination of his or her employment although the same conduct engaged in by an employee who had not received a warning would not lead to the termination of that employee’s employment ...
I find that by issuing a written warning of a serious or major breach, as the case may be, to one of its employees, the respondent altered the position of that employee to the employee’s prejudice within the meaning of s 298K(1) of the Act.
Her Honour’s reasoning, which has enjoyed the agreement of Wilcox J in Finance Sector Union of Australia v Australian & New Zealand Banking Group Limited (2002) 120 FCR 107 at 133 – 134 [137] and Rangiah J in Lamont v University of Queensland (No 2) [2020] FCA 720 at [69], addresses Unilever’s argument that any alteration in Mr Cunningham’s position by reason of the written warning was because of his own conduct rather than any action by it. I find that giving Mr Cunningham the written warning altered his position to his prejudice. It is not necessary for present purposes to consider whether it also injured him in his employment.
Move to the “B Shift”
Mr Cunningham denied having said that he did not like Mr Herrera Garcia and that Mr Herrera Garcia could not do his job properly but Mr Roach’s notes of the 11 May 2020 meeting record him saying just that. Mr Cunningham has no notes of his own to contradict Mr Roach’s contemporaneous record which I accept as accurate. Mr Roach was cross-examined at some length and in some detail as to his motivation for moving Mr Cunningham to the B shift but was unshaken in his response that it arose out of Mr Cunningham’s unwillingness to work with Mr Herrera Garcia and his suggestion of a shift swap.
Although Mr Cunningham indicated a willingness to swap shifts, he did not go so far as to request such a change. That, I find, was Unilever’s decision. However, Mr Cunningham has not adduced evidence of what real and substantial injury of any compensable kind was caused by the shift change or what real and substantial adverse affection of, or deterioration in, the advantages he had enjoyed thitherto had been brought about. In those circumstances, the action has not been shown to have been adverse action.
Removal from role of line co-ordinator
When Mr Cunningham ceased to be a line co-ordinator his income dropped by $250 per week. If that occurred at Unilever’s instigation, that would be adverse action as an injury in employment and a prejudicial alteration of position. However, if the change in roles occurred because Mr Cunningham requested it, then it was not adverse action. The evidence supports the latter characterisation. Mr Roach’s notes of the meeting on 11 May 2020 record Mr Cunningham, after a 5 minute break, saying to Mr Roach:
At the end of the day, I want to keep my job. You know the line leader role is not working out for me. If I can drop the role and go back to being an operator and maybe a shift swap. I am willing to try harder, I want to keep my job.
It could not be said that a person was injured in their employment or that their position had been altered to their prejudice if the action in question was taken because they freely sought it. In the context of the FW Act, which is relevantly concerned with the protection of industrial rights and entitlements, such action is neither injurious nor prejudicial to an employee. Reducing Mr Cunningham’s role at his suggestion, which I find is what occurred and which was not said to have been coerced, was not adverse action.
Reason for adverse action
Statutory presumption – s.361 of the FW Act
If, in proceedings under s.340 of the FW Act, an allegation of adverse action for a prohibited reason is made, by reason of s.361 of the FW Act it is presumed that the action was taken for that reason, or with that intent, unless the employer proves to the contrary: Davids Distribution Pty Ltd v National Union of Workers (1999) 91 FCR 463 at 500 – 501 [109] per Wilcox and Cooper JJ. In Victoria (Office of Public Prosecutions) v Grant (2014) 246 IR 441 at 448 [32], Tracey and Buchanan JJ summarised as follows the principles concerning ss.360 and 361 established by the High Court in Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500 and Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (2014) 253 CLR 243:
•The central question to be determined is one of fact. It is: “Why was the adverse action taken?”
•That question is to be answered having regard to all the facts established in the proceeding.
•The Court is concerned to determine the actual reason or reasons which motivated the decision-maker. The Court is not required to determine whether some proscribed reason had subconsciously influenced the decision-maker. Nor should such an enquiry be made.
•It will be “extremely difficult to displace the statutory presumption in s 361 if no direct testimony is given by the decision-maker acting on behalf of the employer”.
•Even if the decision-maker gives evidence that he or she acted solely for non-proscribed reasons other evidence (including contradictory evidence given by the decision-maker) may render such assertions unreliable.
•If, however, the decision-maker’s testimony is accepted as reliable it will be capable of discharging the burden imposed on the employer by s 361.
The effect of s.360 of the FW Act is that if adverse action is taken for a number of reasons, any one that is a substantial or operative factor in the reasons motivating the action is taken to be a reason for the action: Barclay’s case at 535 [103], [104]; 544 [140].
In this case, the applicants alleged that Unilever took adverse action against Mr Cunningham because on 17 April 2020 he had exercised one or more workplace rights, namely those referred to earlier in these reasons at [76].
Who made the decision to give a final warning?
The evidence indicates, and the applicants accepted in addressees, that Mr Roach was the relevant decision-maker. I find that he was.
As a consequence of that finding, whatever Mr Herrera Garcia might have said on 20 April 2020 about the reasons Messrs Cunningham and Doyle were given printouts of their time records is only a distraction, albeit that it was understandable that Mr Cunningham suspected that Mr Herrera Garcia had had more of a decision-making role than was actually the case. Importantly for this issue, I accept Mr Roach’s evidence, which was corroborated by Mr Ollerton’s, that until the 11 May 2020 meeting he had been unaware of Mr Cunningham and Mr Herrera Garcia’s 17 April 2020 conversation about breaks on the RIA 2 line. I find that on 20 April 2020 Mr Roach did not know of the 17 April 2020 conversation and that therefore his 20 April 2020 direction that Mr Herrera Garcia raise with Messrs Cunningham and Doyle his concerns about their break management had nothing to do with that earlier conversation. Even if Mr Herrera Garcia had said what Mr Cunningham attributed to him, those words were not an expression of the views of the decision-maker, Mr Roach.
Reasons for action
Mr Roach’s evidence as to why he acted as he did was direct, to the point and not shaken in cross-examination. I accept his evidence that he did not take action, namely initiate the investigation into Mr Cunningham’s conduct, stand him down for a period, give him a final warning, move him to the “B Shift” and demote him from line co-ordinator, because Mr Cunningham had suggested to Mr Herrera Garcia on 17 April 2020 that the RIA 2 line be stopped so operators could take their breaks. The fact that prior to the 11 May 2020 meeting Mr Roach had been unaware of the 17 April 2020 conversation supports the conclusion, which I draw, that the 11 May 2020 meeting was concerned with break management and had nothing to do with the 17 April 2020 conversation. I find therefore that Mr Roach instigated the investigation because of his concerns over Mr Cunningham’s break management, not because of what Mr Cunningham said on 17 April 2020. I also accept that he directed the stand down because of Mr Cunningham’s conduct and demeanour at the 11 May 2020 meeting and his stated attitude towards Mr Herrera Garcia.
Being a continuation, in fact the conclusion, of the process started on 20 April 2020 and then pursued through the 11 May 2020 meeting, I am satisfied that the final warning, the shift change and the demotion from line co-ordinator were, to the extent not sought by Mr Cunningham, actions taken because of misconduct committed by him, discussed at the 11 May 2020 meeting, and on which he did not comment when given the opportunity at the 18 May 2020 meeting.
Given those matters, I am not persuaded by the applicants’ submission that the taking of action against Mr Cunningham in circumstances where other employees who took improperly lengthy breaks were not disciplined demonstrates that the action taken against him was taken because of the 17 August 2020 conversation. There may be many reasons why action was not taken against the other employees, an issue that has not been pursued in any detail. In the absence of evidence on that subject I am not persuaded that any inference available from the absence of steps being taken against the other employees is sufficiently strong to justify a finding on Mr Roach’s motivation for the actions he took, different from the one I have reached.
I find that Mr Roach did not initiate the investigation into Mr Cunningham’s conduct, stand him down for a period, give him a final warning, move him to the “B Shift” or demote him from line co-ordinator because he had suggested to Mr Herrera Garcia that the RIA 2 line be stopped so operators could take their breaks. To the extent that any of the actions in question, in particular the final warning, involved adverse action, I find that the action was not taken for a reason prohibited by the FW Act and that Unilever has rebutted the presumption prescribed by s.361 of the FW Act.
CONCLUSION
The applicants have not demonstrated that Unilever contravened the FW Act as alleged.
Consequently, the application will be dismissed.

I certify that the preceding one hundred and eight (108) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Cameron.
Associate:
Dated: 8 February 2023

File number:	SYG 604 of 2021
Judgment of:	JUDGE CAMERON
Date of judgment:	8 February 2023
Catchwords:	INDUSTRIAL LAW – General protections – adverse action – injury in employment – altering employee’s position to their prejudice – reasons for taking adverse action. INDUSTRIAL LAW – Adverse action – whether inquiry into allegations against employee amounts to adverse action – whether final written warning of employee amounts to adverse action.
Legislation:	Fair Work Act 2009 (Cth) ss 340, 341, 342, 360, 361, 545, 546, 547 Work Health and Safety Act 2011 (NSW) ss 19, 68
Cases cited:	Whelan v Cigarette & Gift Warehouse Pty Ltd (2017) 275 IR 285 Edgar v Norton Rose Fulbright Australia Services Pty Ltd (2022) 368 FLR 1 Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (1998) 195 CLR 1 McIlwain v Ramsey Food Packaging Pty Ltd (2006) 154 IR 111 Community Public Sector Union v Telstra Corporation (2001) 107 FCR 93 Australian Workers’ Union v BHP Iron-Ore Pty Ltd (2000) 106 FCR 482 BHP Iron Ore Pty Ltd v Australian Workers’ Union (2000) 102 FCR 97 Unsworth v Tristar Steering and Suspension Australia Ltd (2008) 216 FCR 122 Klein v Metropolitan Fire and Emergency Board (2015) 208 FCR 178 Jones v Queensland Tertiary Admissions Centre Ltd (No 2) (2010) 186 FCR 22 Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Visy Packaging Party Pty Ltd (No 3) (2013) 216 FCR 70 United Firefighters Union of Australia v Easy [2013] FCA 763 Police Federation of Australia v Nixon (2008) 168 FCR 340 The Environmental Group Ltd v Bowd (2019) 288 IR 396 United Firefighters’ Union of Australia v Metropolitan Fire and Emergency Services Board (2003) 123 IR 86 Quirk v Construction, Forestry, Maritime, Mining and Energy Union (2021) 312 IR 359 Construction, Forestry, Mining and Energy Union v Coal and Allied Operations Pty Ltd (1999) 140 IR 131 Finance Sector Union of Australia v Australian & New Zealand Banking Group Limited (2002) 120 FCR 107 Lamont v University of Queensland (No 2) [2020] FCA 720 Davids Distribution Pty Ltd v National Union of Workers (1999) 91 FCR 463 Victoria (Office of Public Prosecutions) v Grant (2014) 246 IR 441 Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500 Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (2014) 253 CLR 243
Division:	Fair Work
Number of paragraphs:	108
Date of hearing:	29-30 November 2021
Place:	Sydney
Counsel for the Applicants:	Mr H. Pararajasingham
Solicitor for the Applicants:	Mr S. Howe, Australian Manufacturing Workers Union
Counsel for the Respondent:	Mr J. Fernon SC
Solicitor for the Respondent:	Baker & Mackenzie

SYG 604 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers Union (AMWU) (ABN 59 459 725 116) First Applicant SHANE CUNNINGHAM Second Applicant
AND:	UNILEVER AUSTRALIA TRADING LIMITED (ABN 65 136 885 651) Respondent

order made by:	JUDGE CAMERON
DATE OF ORDER:	8 February 2023