Clark v Ventura Transit Pty Ltd

[2018] FCCA 468

FEDERAL CIRCUIT COURT OF AUSTRALIA

CLARK v VENTURA TRANSIT PTY LTD [2018] FCCA 468

Catchwords:
INDUSTRIAL LAW – Alleged contraventions of ss.114, 117, 340, 343 and 345 of the Fair Work Act 2009 (Cth) – held respondent did not contravene ss.114, 117, 340, 343 or 345 of the Fair Work Act 2009 (Cth) – application dismissed.

Legislation:

Fair Work Act 2009 (Cth), ss.55, 114, 117, 340, 341, 342, 343, 345

Fair Work Bill 2008 (Cth)

Cases cited:

Campomar Sociedad Limitada v Nike International Limited [2000] HCA 12; (2000) 202 CLR 45
Director of The Fair Work Building Industry Inspectorate v Baulderstone Pty Ltd & Ors [2014] FCCA 721
McJannet v Special Broadcasting Services Corporation (t/as SBS Corporation) [2016] FCCA 2937

Murphy v Farmer [1988] HCA 31; (1988) 165 CLR 19

Stanley v Father Michael Court [2014] FCCA 156
Taco Company of Australia Inc v Taco Bell Pty Ltd (1982) 42 ALR 177

Applicant: GREGORY PAUL CLARK

Respondent: VENTURA TRANSIT PTY LTD

File Number: MLG 663 of 2016

Judgment of: Judge Jones

Hearing date: 20 September 2017

Date of Last Submission: 23 November 2017

Delivered at: Melbourne

Delivered on: 6 March 2018

REPRESENTATION

Counsel for the Applicant: Ms Campbell

Solicitors for the Applicant: JobWatch Inc

Counsel for the Respondent: Mr Hooper

Solicitors for the Respondent: Marsh & Maher Lawyers

ORDERS

1. The Application filed on 1 April 2016 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 663 of 2016

GREGORY PAUL CLARK

Applicant

And

VENTURA TRANSIT PTY LTD

Respondent

REASONS FOR JUDGMENT

(As corrected)

Introduction

1. The Applicant alleges that the Respondent contravened various provisions of the Fair Work Act 2009 (Cth) (“the Act”). The numerous alleged contraventions were not fully identified in the Applicant’s Initiating Application filed on 1 April 2016, but are articulated in the Applicant’s Outline of Submission filed on 19 December 2016, and Supplementary Outline of Submission filed on 28 April 2017. Taking these submissions together, the alleged contraventions are as set out below.

2. First, the Applicant alleges that the Respondent contravened s.44 of the Act, because the Respondent contravened a provision of the National Employment Standards (“NES”) (namely s.114 of the Act) by denying the Applicant his entitlement to be absent from his employment on a public holiday.

3. Second, it is alleged that the Respondent contravened s.340 of the Act, because it took adverse action against the Applicant by dismissing him because he exercised a workplace right. The workplace right that the Applicant is said to have exercised is contained in s.341(1)(a) of the Act. Section 340 of the Act (a civil remedy provision) relevantly provides that:

   (1) A person must not take adverse action against another person:

   (a) because the other person:

   (i) has a workplace right; or

   (ii) has, or has not, exercised a workplace right; or

   (iii) proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right; or

   (b) to prevent the exercise of a workplace right by the other person.

4. Section 341 of the Act relevantly defines a “workplace right” as follows:

   (1)  A person has a workplace right if the person:

   (a)  is entitled to the benefit of, or has a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body; or

   (b)  is able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument; or

   (c)  is able to make a complaint or inquiry:

   (i)  to a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrument; or

   (ii)  if the person is an employee—in relation to his or her employment.

5. The entitlement under s.341(1)(a) of the Act that the Applicant relies on is his entitlement arising from s.114 of the Act. There is no dispute that the termination of the Applicant’s employment falls within the meaning of adverse action pursuant to s.342 of the Act. The dispute between the parties is whether the Applicant exercised a workplace right and, if the Court finds that he did, whether the Respondent terminated the Applicant’s employment because he exercised his workplace right under s.114 of the Act.

6. The Applicant also alleges that the Respondent contravened s.55 of the Act, which prohibits an enterprise agreement from excluding a provision of the NES. As I understand it, the contravention is said to have occurred because of the Respondent’s interpretation of cl.11 of the Ventura Transit P/L Enterprise Agreement 2014 (“the Enterprise Agreement”) had the effect of excluding s.114 of the Act.[1] The Respondent agrees with the Applicant’s submission that s.114 of the Act applies to bus drivers covered by the Enterprise Agreement, and says that cl.17.1 of the Enterprise Agreement makes this clear.[2] This alleged contravention was not pursued by the Applicant in his final written submissions.[3] Accordingly, I have not considered this alleged contravention in this decision.

   [1] Each of the alleged contraventions set out at [2]-[6] of this judgment are identified in the Applicant’s Outline of Submission filed on 19 December 2016.

   [2] The Respondent’s Outline of Submissions filed on 17 February 2017 at [29].

   [3] The Applicant’s Final Submissions filed on 24 October 2017.

7. The Applicant alleges that the Respondent contravened s.343 of the Act, because the Respondent took action and/or threatened to take action against the Applicant with intent to coerce the Applicant into not exercising a workplace right.

8. The Applicant further alleges that the Respondent contravened s.345 of the Act, because the Respondent knowingly or recklessly made a false or misleading representation about the Applicant’s workplace rights.

9. Finally, the Applicant alleges that the Respondent contravened s.117 of the Act, because the Respondent terminated the Applicant’s employment without giving the required minimum notice.[4]

   [4] Each of the alleged contraventions set out at [7]-[9] are identified in the Applicant’s Outline of Supplementary Submissions filed on 28 April 2017 at [1].

Background

1. The Applicant was employed as a full-time bus driver on a permanent basis by Grenda from 8 November 2004 until sometime in 2012, and by the Respondent thereafter, from when the Respondent took over the operations of Grenda, including the Pakenham Bus Depot where the Applicant worked. The Applicant’s employment was terminated summarily by the Respondent on 5 January 2016. The Applicant was employed as a shift worker under the provisions of the various statutory instruments, with the Enterprise Agreement coming into effect around mid-2015. As a shift worker he was rostered to work on weekends and public holidays, and was generally rostered to work five days per week. As a shift worker, he was entitled to penalty rates and one week of additional annual leave.

2. The Respondent operates a bus service for the general public, 365 days per year according to set timetables, pursuant to a contract with the Victorian Government.

3. Until April 2015, a rostering practice for bus drivers applied at the Pakenham Depot which was a practice introduced by Grenda. This rostering practice is described as one in which all bus drivers placed their names on a list of employees who were willing to work on the next public holiday. This ensured that only bus drivers who wanted to work on the public holiday were rostered to work. Those employees who were normally rostered to work on a day on which a public holiday fell could opt not to work, and would still be paid their base rate of pay.[5] Those employees who had placed their names on the list and were selected to work on the public holiday were paid a penalty rate of 250%.

   [5] The Affidavit of Gregory Paul Clark filed on 23 September 2016 at [5].

4. Mr Ron Hamilton (the then General Manager of the Respondent) described the Respondent’s public holiday rostering practice as follows:[6]

   6.  Drivers are rostered to work different days each week and are rostered to work on weekdays, Saturdays and Sundays. This means that they will be rostered from time to time to work on days which are public holidays. [The Applicant] has exhibited to his affidavit at exhibit GPC 1 an example roster which highlights this rostering system.

   7.  On public holidays timetables are sometimes varied and [the Respondent does] not always require all employees rostered on the day to work.

   8.  If [the Respondent does] not need all rostered employees it requests employees sign a form to establish whether they wish to work on that day or not. By this [the Respondent tries] to accommodate the wishes of employees whilst still ensuring it has enough employees to fill the required shifts.

   9.  If there are insufficient employees expressing a positive desire to work we turn to those other employees on the roster to work on the day.

   10.    If the timetable is not varied on the public holiday then all employees rostered to work are required to work.

   [6] The Affidavit of Ron Hamilton filed on 28 October 2016 at [6]-[10].

5. According to Mr Hamilton, in March 2015 it was brought to his attention that the Dandenong and Pakenham depots were not complying with the Respondent’s public holiday policy. Mr Hamilton deposes that a meeting was held with the Transport Workers Union (“the TWU”) and TWU delegates from all 12 of the Respondent’s depots, to explain the inconsistency and confirm the Respondent’s policy must be applied across all depots.[7]

   [7] Ibid at [14]-[16].

6. An email was sent by Mr Hamilton to depot managers on 8 April 2015 which stated:[8]

   To clarify the procedure for public holiday driver shift coverage, and to provide total reimbursement to the company under the current contractual arrangements with the PTV, the following procedure is to be followed:

   - All drivers normally rostered to work on a public holiday are the only names to be recorded on the voluntary driver holiday sheet.

   - Drivers that choose not to record their name on the above sheet, will be required to utilise an entitlement e.g., RDO if applicable, or Annual leave day to cover the absence.

   - Drivers names on the voluntary list that are not required to work, will be paid the agreed award rate for the day.

   - No driver rostered OFF on a public holiday are to be rostered to work until all drivers normally rostered to work are exhausted.

   - Please discuss this change with your Depot Delegate, and other driver representatives, if this proposal is an alteration to the current arrangements in place at your depot/s.

   - This procedure change is applicable from the next gazetted public holiday after Easter 2015.

   [8] The Affidavit of Ron Hamilton filed on 28 October 2016, Annexure RH-2, 32.

   …

7. On 8 April 2015, on Mr Hamilton’s instructions, a notice was placed on the bus drivers’ notice board at Pakenham Depot that informed all bus drivers of the implementation of the changes to public holiday shift coverage. The notice said, in part: [9]

   [9] Ibid Annexure RH-2, 33.

   …

   As part of this change, drivers who would of [sic] been rostered to work on a day that falls on a public holiday, are the only drivers that can record their name on a voluntary list pertaining to a public holiday shift.

   No driver rostered off is able to nominate to work on a public holiday shift, unless there is a shortage of rostered drivers to cover the public holiday shifts.

   Drivers who are rostered to work as part of their normal rostered week, who do not place their name on the Voluntary list, will need to apply for an RDO if applicable, or an Annual leave day to cover their absence.

   Drivers not required to work on a public holiday that normally would off [sic] worked, are paid for the rostered hours that their normal shift would of [sic] paid, plus penalties.

   Shift changes between drivers rostered on a public holiday are permitted.

   This change in procedure will apply from the next gazetted public holiday following Easter.

8. The Applicant was rostered to work on ANZAC Day on 25 April 2015. The Applicant informed Mr Mark Hall (the then manager of the Pakenham Depot) that he would not work on that day, and would not take another form of leave to cover his absence. The Applicant did not work on 25 April 2015, and Mr Hamilton instructed Mr Hall not to pay the Applicant for that day.

9. The Applicant issued proceedings in the Fair Work Commission (“the FWC”) regarding the Respondent’s failure to pay him on 25 April 2015. Following a conciliation conference held on 4 September 2015, a settlement was reached.

10. Sometime in September 2015, Mr Hall was transferred to the Dandenong Depot, and Mr Christopher Rossi took over responsibility as manager of the Pakenham Depot.

11. On 23 September 2015, the Applicant posted a handwritten notice on the bus drivers’ noticeboard at the Pakenham Depot, which said as follows:[10]

    [10] The Affidavit of Gregory Paul Clark filed on 23 September 2016, Annexure GPC-6.

    To All Concer[n]ed Drivers.

    On Fri[day] 4th Sept[ember] [the Respondent] was ordered by the Fair Work Commissioner (Commissioner Lee) to pay me my entitlements for ANZAC Day public holiday (25^th/4/15) as per the Award & NES (National Employment Standards).

    They were also told by the Commissioner that they must abide by the Award & the NES both on a weekday and a weekend

    And if the issue raised its head again, the Union or any individual is entitled to return to the Commission and it would be dealt with on a case-case basis.

    (Emphasis omitted)

12. On 23 September 2015, in response to the Applicant’s notice, Mr Hamilton instructed Mr Rossi to post the following notice on the bus drivers’ noticeboard at the Pakenham Depot:[11]

    [11] The Affidavit of Ron Hamilton filed on 28 October 2016, Annexure RH-4, 37.

    The Management of [the Respondent] strongly refutes the statements made by [the Applicant] regarding the resolution of this dispute by the Fair Work Commission.

    [The Respondent] was not ordered to make a payment to [the Applicant], instead we agreed to pay him 7.6 hours as a good will gesture only.

    …

13. On 24 September 2015, on instructions from Mr Hamilton, Mr Rossi posted the following notice on the bus drivers’ noticeboard at the Pakenham Depot:[12]

    [12] Ibid Annexure RH-5, 39-40.

    …

    Public Holidays Generally

    - [The Respondent’s] business operates bus services over 7 days per week.

    - Full time drivers are employed on terms that require them to work to a planned roster which allocates a minimum of 5 shifts in each week.

    - The structure of the roster means that in some weeks drivers will be rostered to work on weekends and on Public Holidays and in others they will not.

    - If you are rostered to work on any particular day, including a public holiday, and you do not wish to work on that day you may ask to take a day on [sic] annual leave and if agreed to by [the Respondent] you would not be required to work on that day.

    - Our entitlement to request you to work on public holidays arises from section 114 of the Fair Work Act 2009 (FWA). As 5/7 shift workers it is not reasonable for your [sic] to refuse to work because you have agreed by your terms of employment to work to a roster which covers 7 day operations.

    - On the public holidays you are rostered to work you are paid in accordance with clause 11 of the Enterprise Agreement:

    - Your ordinary time and an additional amount calculated at 1.5% your ordinary rate for those hours worked; or

    - If not required by us to work on that rostered day, your ordinary pay for that day.

    - If you are not rostered to work on the public holiday you do not receive payment for that day.

    - As shift workers you have agreed to these arrangements and you are given additional annual leave in accordance with the Enterprise Agreement by reason of that.

14. The Applicant said that he felt hurt by the Respondent’s notice of 24 September 2015 because, in the introduction the notice referred to him by name, and stated that his commentary regarding compliance with the Award relating to operations on public holidays was “wrong”, “misleading” and demonstrated a “lack of understanding” both of the application of the NES under the Act, and of the Enterprise Agreement.[13]

    [13] The Applicant’s Affidavit filed on 23 September 2016 at [19].

15. The Applicant expressed his disagreement to Mr Rossi about the Respondent’s policy as expressed in the Respondent’s notice of 24 September 2015.

16. At the instruction of Mr Hamilton, a meeting was held on 7 October 2015 between Mr Rossi, Mr Hall and the Applicant. It is apparent from an email dated 8 October 2015 from Mr Rossi to Mr Hall that no resolution was reached regarding the shift work rostering practice of bus drivers at the Pakenham Depot.[14]

    [14] The Affidavit of Christopher Rossi filed on 12 January 2017, Annexure CR-4.

17. Mr Rossi says he that was made aware on 12 December 2016 that the Applicant had contacted a supervisor at the Cardinia Depot, who informed Mr Rossi that the Applicant had asked him if there had been any complaints from other employees about the Respondent’s rostering policy. The Cardinia supervisor also told Mr Rossi that he had been informed by some employees that they did not intend to work on Boxing Day 2015.[15]

    [15] Ibid at [16]; Annexure CR-5.

18. Mr Rossi informed Mr Hamilton about his conversation with the Cardinia supervisor. Mr Hamilton instructed Mr Rossi to post a further notice on the bus drivers’ noticeboard at the Pakenham Depot. This notice, dated 15 December 2017, stated as follows:[16]

    [16] Ibid Annexure CR-6, 18.

    To All Staff,

    It has been brought to our attention that some drivers are intending not to work their rostered shift on the Boxing Day Public Holiday.

    Drivers are employed as 7 day shift workers and as such they are rostered to work on weekdays, weekends and public holidays.

    Not all drivers are required to work on [a] public holiday, but if a driver is rostered to work on a day which falls on a public holiday the driver is not entitled to refuse to work that shift.

    The arrangements that apply on public holidays are set out at clause 11 of the Ventura Transit P/L Enterprise Agreement 2014 (“the Agreement”) such that:

    -   Drivers who are rostered to work on the public holiday are paid at penalty rates for the time worked in accordance with clause 11.2 of the Agreement.

    - Drivers who are rostered to work on a day that the public holiday falls, but who are not required to work are paid at their normal shift rate.

    - Drivers who are not rostered to work on the day on which the public holiday falls and who do not work do not receive any additional payment for that day.

    If an employee is rostered to work on a public holiday and refuses to work, or does not attend for work without valid reason, they will not be paid for that shift and may be subject to disciplinary action up to and including termination of employment.

    …

    (Emphasis omitted)

19. Mr Rossi says that between 14 and 16 December 2015, he was approached by three bus drivers who were rostered to work on Boxing Day 2015, informing him that they did not intend to work on Boxing Day 2015. Mr Rossi deposed that he explained to all of them that they “are expected to work and all of them accepted [his] explanation.”[17]

    [17] Ibid at [19].

20. On 18 December 2015, the Applicant gave a completed “Application For Leave” form to Mr Rossi.[18] This is a pro forma document which requires an employee to first, identify which depot is their place of work Second, it requires an employee to select the type of leave from various checkboxes: Annual, Sick (Personal), Carers (Personal), RDO/Leisure, Sunday Leave Taken, Long Service, Compassionate or Other. The Applicant selected “Other”, and wrote “Public Holiday Leave.” The Applicant nominated 26 December 2015 (“Boxing Day 2015”) as the date of leave, and at the bottom of the form, he wrote the following:

    I [the Applicant] am applying for public holiday leave as prescribed in the Fair Work Act 2009 – sec 114 for this 26^th December 2015 (please see attached form)

    [18] Ibid Annexure CR-7.

1. The “attached form” is in fact a copy of s.114 of the Act, as downloaded from the Austlli website on 19 October 2015. On that copy of s.114 of the Act, the Applicant has inserted brackets around the heading of sub-s.114(1) of the Act, “Employee entitled to be absent on public holiday”. The Applicant has further written, against

   
   

   sub-s.114(4)(h) of the Act, “i.e. ongoing fair work dispute.”

2. Mr Rossi sent an email on 18 December 2015 to Mr Hamilton, shortly after the Applicant had given Mr Rossi his Application for Leave. The email is as follows:[19]

   [The Applicant] came to see me today in regards to not working on the 26th of December as he believes it’s his right to refuse to work and take it as a public holiday. I tried to explain to him that it would not be in his best interest to refuse to work on this day. He was I thought about to accept to work but then he decided to hand in a leave [form], as per my email with a statement saying he wishes to take his public holiday entitlement. He alluded that there were 2 to 3 others that were thinking of not turning up on this day as well. He stated that he was prepared to lose his job over this, if that’s what it took. I advised him that I was prepared to offer him the day off if he wanted to take it as an annual leave day, he said no.

   [19] Ibid Annexure CR-8, 23.

3. Mr Hamilton then instructed Mr Rossi to give the Applicant a letter dated 21 December 2015. This correspondence repeated in large what was said in the notice dated 15 December 2015 (extracted at [25] above). The correspondence ended with the following paragraph:[20]

   If you are rostered to work on Boxing Day and do not attend without valid reason, you will not be paid for that shift and will be subject to disciplinary action. This may include termination of employment.

   [20] Ibid Annexure CR-9.

4. Around 21 December 2015, Mr Rossi went on annual leave. Mr Hall took over responsibility for the Pakenham Depot, as well as the Dandenong Depot, during the 2015 Christmas period.

5. On 24 December 2015, the Applicant sent the following email to Mr Hamilton, and other depot managers:[21]

   I am writing this email, after consultation with the fair work ombudsman to clarify my position and intentions.

   I wish to make it clear that I will be taking one days leave on 26^th December 2015. As has been explained to you and as you are aware it is my right under government legislation (Fair work Act 2009 Sect 114, Entitlement to be absent from employment on Public Holiday).

   As I have “Personal Circumstances, including family responsibilities”, that I need to attend to. In considering whether the “Refusal is Reasonable” I have taken into account “The nature of the work place including operational requirements” and provide the following list of drivers names who have made themselves available to cover shifts on this day.

   [21] The Affidavit of Ron Hamilton filed on 28 October 2016, Annexure RH-11.

6. The Applicant’s email then lists the names of 16 bus drivers who were not rostered to work on Boxing Day 2015. The Applicant’s email continues:[22]

   Furthermore I expect to be paid my “Normal Shift Rate” for this day in accordance with the Ventura Transit P/L Enterprise Agreement 2014 clause 11.2 which states “Employees who are ordinarily rostered to work on the day that falls on a public holiday will receive their normal shift payment for the public holiday”. It does not contain the phrase “But Who Are Not Required to Work” as illegally amended by you. Failure to comply with this clause will be considered a deliberate breach of a legally binding agreement. I would also like to point out that you have failed to produce any document, legal or otherwise that states that “An Employee has No Right To Refuse”.

   As a loyal and long serving employee of this company (12 years) was a very good driving and conduct record. I have worked hundreds of Saturdays and Sundays and dozens of public holidays. You claim that I am required to work on 26^th December yet you are happy for me not to work as long as I use annual or other leave entitlement, required or not required you can’t have it both ways.

   [22] Ibid.

7. On that same day, Mr Hall replied to the Applicant’s email, stating that:[23]

   …our company position has not changed and is in accordance with the written information provided to you earlier this week. As such we expect you to attend work on Saturday 26^th December to work as per your roster.

   [23] The Affidavit of Mark Hall filed on 28 October 2016, Annexure MH-6.

8. The Applicant did not attend for work on Boxing Day 2015.

9. On 27 December 2015, the Applicant was stood-down on pay. On 30 December 2015, Mr Hall met with the Applicant, who was accompanied by a TWU delegate. A record of the meeting was made by Mr Hall.[24]

   [24] Ibid Annexure MH-7.

10. By correspondence dated 5 January 2016 and signed by Mr Hall, the Applicant’s employment was terminated without notice. There is no dispute that the letter was drafted by Mr Hamilton. That correspondence relevantly reads as follows:[25]

    [25] Ibid Annexure MH-8, 49.

    This letter will serve as formal confirmation that your employment with [the Respondent] was summarily terminated effective 5 January 2016.

    The basis of the termination was your failure to attend work on Boxing Day 2015 without providing a valid reason for your absence.

    During our interview conducted on 30 December 2015:

    - You acknowledged you were rostered to work on this day;

    - You conceded you were notified on two separate occasions of the requirement for you to attend work;

    - You did not provide a valid reason as to why you did not attend.

    We note you again stated that the Enterprise Agreement did not require you to work. As we have advised and explained to you on numerous occasions, this is incorrect.

    Despite this advice, you still refused to attend work.

    Accordingly, the decision was made to summarily terminate your employment.

    …

The Applicant’s evidence

1. The Applicant deposes as follows:[26]

   27.    At 11:04am on 24 December 2015, I sent an email to the Respondent’s executive employees stating that I intended not to work on Boxing Day and that I wanted that day to be treated as public holiday leave. My reasons for refusing to work on a public holiday included the following:

   a.  My personal circumstances, including family responsibilities; and

   b.  There were plenty of other drivers who were available to cover my shift that day. I included the names of available drivers on my email.

   [26] The Applicant’s Affidavit filed on 23 September 2016 at [27]-[28].

   Attached and marked “GPC13” is a copy of that email.

   28. I felt that pursuant to s114 of the FW Act it was reasonable to refuse to work on Boxing Day because of the following reasons:

   a.  I very much consider myself a family man and my relationships with my wife and four kids are very important to me.

   b.  Given that I regularly work on weekends and public holidays, it was particularly important to me to be able to spend time with my immediate and extended family over the Christmas period.

   c.  My wife and I had arranged to host a big lunch for extended family on Boxing Day (including my three siblings who were travelling from interstate and my brother-in-law who travelled from overseas to spend time with us), as they were unavailable on Christmas Day.

   d.  There were plenty of other drivers who were volunteering for the Boxing Day shift, which meant that the Respondent’s operational requirements were not prejudiced.

   e.  In more than 10 years of my employment before the ANZAC Day public holiday, the issue of working on a public holiday had always been done on a volunteer basis.

   f.   I had given the Respondent plenty of notice in advance of Boxing Day that I did not wish to work that shift.

   g.  It did not make sense to me that drivers who did not wish to work on a public holiday were being forced to work when there were many other drivers who were willing to work on that day.

2. In cross-examination, the Applicant said that the rostering system for bus drivers was a rotating roster that remains the same from year to year. The Applicant said that generally, bus drivers would move through the rotating roster, and therefore a bus driver could plan the year ahead based on the rotating roster (Exhibit A1).

3. The Applicant could not recall when he planned his family event on Boxing Day 2015, or whether he checked the rotating roster before he made those plans. The Applicant said that he had several conversations with Mr Hamilton, Mr Hall, and Mr Rossi, in which he gave them the detailed reasons (as set out in his affidavit) as to why he did not want to work on Boxing Day 2015. However, the Applicant did not depose to these conversations in his affidavit. In circumstances where Mr Hamilton, Mr Hall, and Mr Rossi all denied that the Applicant had discussed with them the details of the reasons why he did not want to work on Boxing Day 2015, I reject the Applicant’s evidence that he had such conversations.

4. The Applicant pointed his Application for Leave form, and in particular, the attachment to that form.[27] The attachment is simply a copy of s.114 of the Act, and in my opinion, it conveys nothing about the reasons as to why the Applicant did not intend to work on Boxing Day 2015.

   [27] The Affidavit of Christopher Rossi filed on 12 January 2017, Annexure CR-7.

5. In cross-examination, the Applicant agreed that at the disciplinary meeting held on 30 December 2015, when he was asked what the reason was for his absence, he responded that he had a very good reason and that it was stated in his previous email. This was a reference to the Applicant’s email dated 18 December 2015. The Applicant said that he tried to give more information, but was cut-off by Mr Hall. I do not accept this evidence. The Applicant was accompanied by a TWU delegate. The Applicant did not strike me as a person who would allow himself to be interrupted if he had something that he wished to convey to Mr Hall. In my opinion, the Applicant doggedly refused to give detailed reasons because he simply did not believe that he needed to refer to anything beyond “family responsibilities.”

6. The Applicant agreed that he may be rostered to work on five of the ten public holidays per year, and said that of those five rostered public holidays, he would work two or three per year.

7. In cross-examination, the Applicant conceded that:

   a)he did not want the change to rostering at the Pakenham Depot which the Respondent introduced in April 2015;

   b)under the old rostering practice, the Applicant was paid 7.6 ordinary hours if he was rostered but did not work on the public holiday, and the volunteer who worked received a 250% penalty. Thus, the Respondent incurred a 350% cost in ordinary hours for the bus to be driven;

   c)none of the bus drivers that he identified in his email dated 24 December 2015 were rostered to work on Boxing Day. The Appliant agreed that if the Respondent had accepted his proposal that he be paid ordinary hours during his absence from work, and that one of the bus drivers identified in the email be rostered to work on Boxing Day 2015, the Respondent would incur 350% cost; and

   d)he agreed that Boxing Day fell on a Saturday, which is a day that the Respondent requires all rostered drivers to be driving, because the Respondent is required to have the same number of buses providing services on Saturdays.

Mr Hamilton’s evidence

1. Mr Hamilton deposes that he made a request to the relevant FWC Member for a statement to be made in relation to the notice posted by the Applicant. A statement was issued by Commissioner Lee on 30 October 2015. Referring to the two telephone conferences held before him, Commissioner Lee relevantly said:[28]

   3.  The telephone conferences were not private conferences. However parties should be careful to be accurate in describing the outcome of any conference.

   4.  At the conclusion of the conferences there was an agreement that [the Respondent] would pay [the Applicant] for working on ANZAC Day. No order was made for such a payment to be made.

   5.  No findings were made in either conference that [the Respondent] was or was not abiding by the National Employment Standards of the Ventura Transit P/L Enterprise Agreement 2014.

   6.  It was agreed at the conclusion of the conference that the file would be closed as the dispute was resolved.

   [28] The Affidavit of Ron Hamilton filed on 28 October 2016, Annexure RH-6 at [3]-[6].

2. Mr Hamilton deposes that:[29]

   3.  It has always been the case that where an employee really needed some time off work, but had limited or no entitlements, the employee has been able to approach their manager with their reasons and, if the reasons justified time off, the manager would work something out. It was down to the individual managers at the depot level, but they could seek my assistance as requested.

   [29] The Affidavit of Ron Hamilton filed on 16 June 2017 at [3].

3. Mr Hamilton deposes that the previous Grenda public holiday rostering practice was causing a significant financial impact on the Respondent. Mr Hamilton said that once he had identified this impact, he decided that the rostering practice needed to be changed. In oral evidence, Mr Hamilton said that under the contractual arrangements with Public Transport Victoria (“PTV”), PTV only covered the penalty rates of bus drivers who were rostered to work on the public holiday. Thus, if a bus driver was rostered and did not work, then the cost of the penalty rate paid to a bus driver who was not rostered to work would be borne by the Respondent. Therefore, instead of carrying the costs of the ordinary rate paid to a bus driver not rostered to work, the Respondent would bear the costs of both the ordinary rate and the penalty rate paid to a bus driver who was not rostered to work on the public holiday but was now required to work. Mr Hamilton further says that this financial impost was distinct from the Respondent’s operational requirements, because if a bus driver rostered to work on a public holiday was absent, then the Respondent was able to request a bus driver who was not rostered to work.

4. Mr Hamilton’s evidence was up that until 24 December 2015, in all of his discussions with the Applicant about working on a rostered public holiday, the Applicant asserted an unconditional right to be absent on a public holiday and to be paid for that day. Mr Hamilton said the first time he was aware that the Applicant relied on “family responsibilities” by reference to s.114 of the Act was on 24 December 2015.

5. In cross-examination, Mr Hamilton agreed that the formal roster for bus drivers would be confirmed around four weeks in advance.

6. Mr Hamilton deposes to the advice he received following the Applicant’s Application to the FWC to deal with the dispute over ANZAC Day 2015. Mr Hamilton says: [30]

   13.    Upon receiving [the Applicant’s] Application, I wanted to make sure that [the Respondent’s] policy was correct. Accordingly:

   a.  I spoke to Peter Cavanagh, solicitor for the Bus Association of Victoria, in August 2015. I explained the background of the matter, the position Grenda’s former policy placed [the Respondent] in financially, and [the Applicant’s] assertions as to his rights. Peter stated he supported [the Respondent’s] position;

   b.  I spoke to Mike McNess again, who confirmed the TWU supported [the Respondent’s] policy but declined to issue another written statement.

   [30] Ibid at [13].

7. Mr Hamilton deposes that during the period from September 2015 to December 2015, before instructing depot managers to post the notices that he had drafted on the noticeboards, he sent a copy to the TWU. Mr Hamilton deposes that the TWU never raised any issues with the proposed notices.[31] Mr Hamilton further deposed that he consulted with the Bus Association of Victoria (“BAV”) to ensure that the notices correctly reflected the law.[32]

   [31] Ibid at [21].

   [32] Ibid at [22].

8. Mr Hamilton deposes that in addition to his consultations with the TWU and BAV, he also spoke with the solicitors for the Respondent, who reviewed and assisted in the drafting of both the notice to staff dated 15 December 2015, and the letter to the Applicant dated 21 December 2015.[33] Mr Hamilton deposes that he explained the background of the matter to the Respondent’s solicitors, and sought their advice as to whether the Respondent’s policy was lawful and whether the Applicant was correct in asserting that he had a right to elect not to work. Mr Hamilton deposes that the solicitors confirmed their view that the Respondent’s policy was lawful.[34] Mr Hamilton further deposes that if he had received advice from the Respondent’s solicitors, the TWU or the BAV, that the Respondent’s policy or its communication with staff were contrary to the law or conveyed a misleading statement of employees’ rights, he believes that he would have raised this issue with PTV and other companies in the industry and tried to work out alternative solutions, such as additional compensation to the Respondent for the increased cost in wages.

   [33] The Affidavit of Ron Hamilton filed on 12 September 2017 at [3].

   [34] Ibid at [4].

9. Mr Hamilton was cross-examined, in some detail, about the content of his correspondence to his depot managers, the various notices posted on the bus drivers’ noticeboard, and his correspondence with the Applicant. Mr Hamilton’s evidence was:

   a)the email sent to depot managers on 8 April 2015 and the notice of the same date were only concerned with implementing the Respondent’s rostering policy. Mr Hamilton stated that the email and notice did not refer to the NES because, in his mind, the NES had been in place for many years and reflected minimum entitlements for the bus drivers. He said that he was not overlooking the NES. Mr Hamilton said that the Respondent’s depot managers have always had a discretion to decide that bus drivers rostered to work on public holidays should be given leave of absence, having regard to particular circumstances, as conveyed to them by the bus driver;

   b)although the notice dated 8 April 2015 did not refer to the depot manager’s discretion, Mr Hamilton said that bus drivers would understand that there was a discretion available, including an employee’s entitlements to be absent on a rostered public holiday under the NES. He said this was because the NES standards were posted in all depots, and employees could talk to their depot managers or union delegate at any time. Mr Hamilton said that it was his understanding that employees approached depot management regularly to discuss leave arrangements;

   c)in the notices, he did not include an express reference to the NES;

   d)he never held the view that a bus driver did not have a reasonable right to refuse work on a public holiday;

   e)the notice posted on 24 September 2015 was responsive to the Applicant’s actions in posting a commentary about the FWC proceedings and employees rights. He agreed that an employee reading the notice might form a view that they had no reasonable basis to request not to work, but only if the employee was not aware of the NES. Mr Hamilton repeated that the NES have been in place for some time, and in his view, it was unnecessary to refer to the NES in outlining the Respondent’s policy. He said that it was not the Respondent’s policy that an employee could be forced to work on a rostered public holiday, but rather, that if there was a reasonable reason provided by the employee, the depot manager’s discretion could be exercised in their favour;

   f)he did not seek legal advice precisely on s.114 of the Act because it was a legal requirement. Rather, he sought legal advice on whether the notice dated 15 December 2015 and the correspondence with the Applicant was legally correct;

   g)until the events leading up to Boxing Day 2015, the Respondent was not concerned that bus drivers would not turn up on their rostered shift on a public holiday. However, the Respondent became concerned that this might happen without the bus driver talking to his or her depot manager about the reason for his or her absence from work on a rostered day;

   h)by the notice dated 24 September 2015, Mr Hamilton did not intend to convey that the Respondent had a blanket ban on an employee reasonably refusing to work on a rostered public holiday, unless they accessed leave entitlement. He denied that he intended to mislead employees about their rights, and denied that he was reckless in expressly seeking legal advice as to whether the notice was compliant with the NES;

   i)he was aware, from 14 December 2015, that the Applicant did not want to work on Boxing Day 2015, because the Applicant had said to him that it was his right not to work. Mr Hamilton said that the impression he had formed was that the Applicant believed he had an unfettered right not to work on a rostered public holiday;

   j)Mr Hamilton conceded that he never asked the Applicant for his reasons for refusing to work, because the Applicant was so adamant about his position;

   k)the notice dated 15 December 2015 was posted because he had become aware that other rostered drivers may not work on Boxing Day 2015 without having any prior discussion with their depot manager. He said that the document needed to be read in context. This included the reference to a “valid reason”, which he said was equivalent to the notion of reasonableness;

   l)by requiring the notice dated 15 December 2015 to be posted on noticeboards, Mr Hamilton did not intend to mislead employees. In particular, he denied that he intended to mislead employees that if they wanted to be absent on a rostered public holiday and paid for that day, they were required to have a “valid reason” and use their leave entitlements. Mr Hamilton denied that he intended to coerce employees into not exercising their rights. He said that the reason he referred to disciplinary action in the notice was to make it clear to bus drivers that they could not be absent from work without a valid or reasonable reason;

   m)the Respondent’s position was that there was no basis for the Applicant to refuse to work on Boxing Day 2015. He said this was because the Applicant had not given any reason for his intention, and decision, to be absent on his rostered public holiday. Mr Hamilton said that it was open to the Applicant at any time to speak to his depot manager about the reasons for his decision to be absent on Boxing Day 2015;

   n)in submitting the Application for Leave on 18 December 2015, in which the Applicant identified “public holiday leave”, the Applicant was attempting to exercise a right. However, Mr Hamilton denied that “public holiday leave” was an entitlement;

   o)his correspondence to the Applicant on 21 December 2015 was drafted with the assistance of the Respondent’s lawyers. Mr Hamilton said that he did not need to refer to the NES, or the right of the Applicant to speak to the depot manager, because it is well-established in the Respondent’s depots that a bus driver can approach their depot manager about being absent from work. Mr Hamilton denied that in sending the correspondence to the Applicant, he was attempting to mislead the Applicant about his workplace rights, or to stop the Applicant exercising his rights. He said that the reference to “valid reason” in the correspondence included the right of the Applicant to access any leave entitlements, or indeed, take leave without pay if his reasons were valid;

   p)when he saw the email from the Applicant of 24 December 2015, and in particular, the list of employees who were not rostered to work on Boxing Day 2015, it confirmed his view that the Applicant was continuing his campaign to return to the Grenda rostering practices which had previously applied at the Pakenham Depot; and

   q)having been taken to the Applicant’s affidavit in which he sets out, in detail, the reasons for was refusal to work on Boxing Day 2015, Mr Hamilton said that if he been told that these were the Applicant’s reasons, he may have considered the Applicant’s request to be absent on paid leave to be reasonable.

Mr Hall’s evidence

1. Mr Hall deposes that, at the meeting held on 7 October 2015 to discuss the Applicant’s action in posting on the bus drivers’ noticeboard a commentary of the outcome of the FWC proceedings, he said to the Applicant:[35]

   [35] The Affidavit of Mark Hall filed on 28 October 2016 at [49](f)-(g).

   …

   f.   I told [the Applicant] that he was required to take annual leave if he wanted public holidays off and was otherwise rostered to work, and explained the responsibilities of working a 7 day roster.

   g.  I also explained that if he continued to use the notice board in this way and if he did not comply with the requirements regarding working on a public holiday he might face disciplinary action (No formal action was taken at this time though).

2. Mr Hall deposes that at the disciplinary meeting held on 30 December 2015:[36]

   [36] Ibid at [63]-[64], [66].

   63.    [The Applicant] agreed he had been rostered to work and had been offered an opportunity to have the day as annual leave.  He also agreed that he had failed to work, but when asked for his reasons he referred to those stated in the email dated 24 December 2015 which I have already referred to at MH 5.

   64.    He did not provide any further detail of the basis for his belief he was entitled to refuse to work and did not provide any detail of the nature of the personal and family responsibilities that he claimed to have had.

   …

   66.    [The Applicant] did not at this meeting, or at any time prior to his termination provide the explanation that he had arranged to host a big lunch for his extended family on Boxing Day, including three siblings from interstate and a brother in law from overseas and until these proceedings I had never been informed by him or anyone that this was his reason for wanting to avoid working on Boxing Day.

   (Emphasis omitted)

3. Mr Hall deposes as follows:[37]

   4.  I have always understood [the Respondent’s] policy was that if an employee needed time off, and did not have or could not use their entitlements, they could come to their manager with their reasons and, if the reasons were good, the manager had the discretion to work something out.

   [37] The Affidavit of Mark Hall filed on 19 June 2017 at [4].

4. Mr Hall then refers to circumstances in June 2015, when he was Pakenham Depot Manager, when the Applicant approached him and informed about what were clearly serious family issues. Mr Hall deposes that they worked together to enable the Applicant to take paid leave utilising his various leave entitlements. Mr Hall deposes that the Applicant preferred to take paid leave. Mr Hall further deposes to approving the Applicant’s request for leave without pay in August 2015.

5. Mr Hall was cross-examined about the meaning of the phrase “valid reason” used in the letter of termination dated 5 January 2016.[38] Counsel for the Applicant put to Mr Hall that the reference to a “valid reason” was not a reference to a reason to refuse work pursuant to s.114 of the Act, and that rather, it was a reference to a refusal to work on a rostered day without taking a leave entitlement. I am satisfied that Mr Hall’s evidence was not that a “valid reason” as understood by the Respondent, was limited in that way. His evidence was that any bus driver could access a leave entitlement or have discussions with their manager, who retains a discretion to allow time off work with or without pay. Mr Hall’s evidence was that the reference to a “valid reason” included access to particular entitlements, approved absence without pay, or approved absence with pay, following discussions with their depot manager, taking place prior to being absent from a rostered shift.

   [38]The Affidavit of Mark Hall filed on 28 October 2016, Annexure MH-8.

6. In cross-examination, Mr Hall said that he was first made aware by email that the Applicant was not going to work on Boxing Day 2015 because of “family responsibilities” on 24 December 2015. Mr Hall agreed that at the disciplinary meeting on 30 December 2015, he had not asked the Applicant for more details about what the Applicant meant by “family responsibilities”.

7. When pressed by Counsel for the Applicant, Mr Hall said that in his view, the Applicant’s reference to “family responsibilities” was not a sufficient reason, and that he did not inform the Applicant that this was his view.

Mr Rossi’s evidence

1. In cross-examination, Mr Rossi said:

   a)the Applicant never told him that his reasons for refusing to work on Boxing Day 2015 was because of “family responsibilities.” Mr Rossi said that, in his discussions with the Applicant, the Applicant kept referring back to the ANZAC Day dispute, and the proceedings in the FWC. Mr Rossi said that the Applicant told him that the Respondent was ordered by the FWC to pay him for not working on ANZAC Day 2015, and believed that the Respondent was required to do so for Boxing Day 2015;

   b)when asked about whether the notice dated 24 September 2015 represented the Respondent’s policy on rostering practices, Mr Rossi said that it represented part of the Respondent’s policy. He said that the additional aspect of the Respondent’s rostering policy was that a depot manager’s discretion may be exercised if there is a valid reason, or extenuating circumstances. Mr Rossi said the fact that depot managers have that discretion is common knowledge amongst the bus drivers. He said, in his opinion, the NES was not expressly referred to because it exists as an underlying right. Mr Rossi said that the Respondent’s notice dated 24 September 2015 was not misleading, because it referred to the “valid reason”, and covers the depot manager’s discretion to allow rostered employees to be absent from work, and be paid;

   c)during the period between September and October 2015, the Applicant was actively engaged in discussions at the depot with other bus drivers about their rights under s.114 of the Act to not work. Mr Rossi said that he saw the Applicant showing these employees his payslip from ANZAC Day 2015;

   d)at the meeting on 7 October 2015 concerning the FWC proceedings, Mr Hall said to the Applicant that the Applicant’s view that drivers could choose to refuse to work rostered public holidays was incorrect, because drivers were required to work a seven-day roster;

   e)as far as he could recall, the Applicant was formally notified two or three weeks prior to Boxing Day 2015, that he was rostered to work on that day;

   f)both the Respondent’s notice dated 15 December 2015 and the correspondence from Mr Hamilton to the Applicant dated 21 December 2015 needed to be read in context; that is, the statement that a driver was not entitled to refuse work on a rostered public holiday shift needs to be read together with the reference to a “valid reason”. He said that his understanding of a “valid reason” was that a bus driver could use an appropriate existing leave entitlement, as well as rely on extenuating circumstances (such as circumstances affecting their family) and take paid leave;

   g)when he received the Applicant’s Application for Leave on 18 December 2015, the Applicant merely stated that he was exercising a right under s.114 of the Act, and did not say what the reason was for his refusal to work on Boxing Day 2015. Mr Rossi said that when he asked the Applicant what he meant by the phrase “public holiday leave” on his Application for Leave, the Applicant responded by referring to what occurred on ANZAC Day 2015;

   h)when taken to the email he sent to Mr Hamilton on 18 December 2015, which stated that he had informed the Applicant that he was prepared to give the Applicant the day off if he used annual leave entitlements, Mr Rossi said that the reason he said this was because the Applicant had not referred to any reasonable reason for refusing to work on Boxing Day 2015; and

   i)when he informed the Applicant that it would be in his best interests to work on Boxing Day 2015, he was trying to suggest that the Applicant take annual leave, or provide a reasonable excuse for not working. Mr Rossi said that he presumed the Applicant was aware of the concept of “reasonable” refusal, because the Applicant had attached a copy of s.114 of the Act to his Application for Leave.

Section 114 of the Act

1. It is appropriate to first consider the evidence relevant to the application of s.114 of the Act to the circumstances surrounding Boxing Day 2015. This is because, as recognised by both parties, any findings the Court makes in relation to this evidence will affect the Applicant’s following claims:

   a)the Respondent breached s.114 of the Act, and thereby s.44 of the Act;

   b)the Respondent contravened s.340 of the Act because it dismissed the Applicant because the Applicant exercised a workplace right the meaning of s.341 of the Act when he refused to work on Boxing Day 2015; and

   c)the Respondent took action, or threatened to take action, with an intent to coerce the Applicant into not exercising that workplace right (to not work on Boxing Day 2015), and thereby contravened s.343 of the Act.

2. The Applicant further argues that if the Applicant was exercising a workplace right when he refused to work on Boxing Day 2015, the Respondent did not have grounds for summarily dismissing the Applicant’s employment. Accordingly, the Applicant claims that the Respondent contravened s.117 of the Act by not giving the Applicant notice of termination or payment in lieu of notice.

3. The Respondent argues that s.114 of the Act is also relevant to the Applicant’s allegation that the Respondent contravened s.345 of the Act, because it is submitted it is not “…misrepresentation to say a worker is required to work as rostered without explaining to them exactly what would constitute a “reasonable refusal” to work.”[39] This may be so, but in my view, the alleged contravention of s.345 of the Act should be treated separately, and I will treat it accordingly.

   [39] The Respondent’s Closing Submissions filed on 23 November 2017 at [5].

4. Section 114 of the Act provides:

   Employee entitled to be absent on public holiday

   (1)  An employee is entitled to be absent from his or her employment on a day or part‑day that is a public holiday in the place where the employee is based for work purposes.

   Reasonable requests to work on public holidays

   (2)  However, an employer may request an employee to work on a public holiday if the request is reasonable.

   (3)  If an employer requests an employee to work on a public holiday, the employee may refuse the request if:

   (a)  the request is not reasonable; or

   (b)  the refusal is reasonable.

   (4)  In determining whether a request, or a refusal of a request, to work on a public holiday is reasonable, the following must be taken into account:

   (a)  the nature of the employer’s workplace or enterprise (including its operational requirements), and the nature of the work performed by the employee;

   (b)  the employee’s personal circumstances, including family responsibilities;

   (c)  whether the employee could reasonably expect that the employer might request work on the public holiday;

   (d)  whether the employee is entitled to receive overtime payments, penalty rates or other compensation for, or a level of remuneration that reflects an expectation of, work on the public holiday;

   (e)  the type of employment of the employee (for example, whether full‑time, part‑time, casual or shiftwork);

   (f)  the amount of notice in advance of the public holiday given by the employer when making the request;

   (g)  in relation to the refusal of a request—the amount of notice in advance of the public holiday given by the employee when refusing the request;

   (h)  any other relevant matter.

5. The parties are agreed that the effect of s.114 of the Act is that:

   a)an employee is entitled to be absent from work on a public holiday;

   b)an employer may request an employee to work on a public holiday, if the request is reasonable; and

   c)an employee may refuse the request if the employer’s request is not reasonable, or if the employee’s refusal is reasonable.

6. Section 114(4) of the Act specifies the matters which must be taken into account in determining the question of reasonableness.

7. I agree with the Applicant’s submission that the entitlement of an employee to be absent on public holidays is independent of, and additional to, an entitlement to be paid annual leave or other entitlements while an employee is absent from work.[40]

   [40] The Applicant’s Final Submissions filed on 24 October 2017 at [9].

8. I do not agree with the Applicant’s submission that, having regard to the legislative history of s.114 of the Act, there is no onus on an employee to demonstrate that the refusal to work on a public holiday is reasonable.[41] I see no difference between sub-s.114(3)(b) of the Act, and the provisions of the predecessor legislation, which provided that an employee may refuse to work on a public holiday if the employee had reasonable grounds to do so.[42] Subsection 114(3)(b) of the Act requires the Court to consider whether an employee’s refusal to work on a public holiday is reasonable. This subsection would have no work to do if the Applicant’s submissions were accepted.

   [41] Ibid at [10]-[12].

   [42] Workplace Relations Act 1996 (Cth), s.612(3).

9. I agree with the Respondent’s submissions that if an employee wishes to exempt him or herself from having to work on a day he or she is rostered to work, he or she must at least provide to an employer a reason for the exemption.[43]

   [43] The Respondent’s Closing Submissions filed on 23 November 2017 at [60].

10. Both the Applicant and the Respondent agree that the question of reasonableness in the context of s.114 of the Act is to be assessed objectively, having regard to the balance of the factors specified in s.114(4) of the Act. I concur with this proposition.

11. In their respective written closing submissions, both parties had recourse to the Explanatory Memorandum to the Fair Work Bill 2008 (Cth), which stated in respect of the then proposed s.114:[44]

    452. The relevance of each of these factors and the weight to be given to each will vary according to the particular circumstances.  In some cases, a single factor will be of great importance and outweigh all others, in others there will be a balancing exercise between factors.

    453. For example, where an employee is employed in a workplace that requires a certain level of staffing on a public holiday (like a hospital) and has been given warning of the likelihood of being required to work on public holidays, a request by an employer to work may be considered reasonable.

    454. On the other hand, a refusal by an employee of a request to work on a public holiday may be reasonable where, e.g., the employee has notified the employer in advance that she or he will not be able to work on the public holiday because of family commitments.

    [44] Explanatory Memorandum, Fair Work Bill 2008 (Cth), 75 at [452]-[454].

12. I do not accept the assertion by the Applicant that this extract from the Explanatory Memorandum supports the conclusion that in determining whether the employer’s request to work on a public holiday is reasonable and whether the employee’s refusal to work is reasonable, the Court may have regard to all of the factors relevant at the time; not just those apparent to the employer or the employee.[45] In my opinion, in determining whether an employee’s refusal is reasonable, the Court must have regard to the evidence of the surrounding circumstances that are evident to the parties at the time the request was made by the employer, and the refusal was made by the employee.

    [45] The Applicant’s Final Submissions filed on 24 October 2017 at [14].

Was the Respondent’s request that the Applicant work on Boxing Day 2015 reasonable?

1. There can be no doubt that the Respondent’s request, by rostering the Applicant to work a shift on the Boxing Day public holiday, was reasonable. The request was reasonable in circumstances where the Respondent’s business is the provision of a basic and vital transport service to the general public, and where its services are governed by contractual terms stipulated in an agreement with PTV, that includes a requirement that bus services be provided on public holidays. The request was reasonable in circumstances where the Respondent operates bus services 365 days per year, and where bus drivers were employed as shift workers, on the basis that drivers may be rostered to work any shift over the 365 days of the year: sub-ss.114(4)(a) and (e) of the Act. Furthermore, as a shift worker, the Applicant was entitled to be paid at a penalty rate of 2.5 (or 250%) for hours worked on public holidays under the Enterprise Agreement: s.114(4)(d) of the Act.

2. The evidence is that the Respondent’s rostering system for bus drivers was a rotating roster over the course of the year. There is no dispute that the rotating roster was reasonable, and ensured that over the years, each bus driver moved through the roster, with the consequence that each shift work driver is rostered to work on different days of the week, weekends, and public holidays, in a manner that is fair and

   
   

   well-understood by the bus drivers.

3. The Applicant’s evidence is that the rotating roster provided the bus driver with certainty about when he or she would be rostered to work in the forthcoming year, and allowed a bus driver to plan one year in advance, based on the rotating roster. The evidence is that, at least in relation to Boxing Day 2015, the Applicant was formally advised that he was rostered to work two to four weeks in advance. I am satisfied, on the Applicant’s own evidence, that months prior to formal notice being given, he had a high level of certainty that he would be rostered to work on Boxing Day 2015. The Applicant’s own evidence suggests that the roster was applied by the local depot manager with a degree of flexibility. The Applicant says that he would probably have worked two or three of the five days that he was rostered to work on public holidays: sub-ss.114(4)(c) and (f) of the Act.

4. The Applicant submits as follows:[46]

   [46] The Applicant’s Final Submissions filed on 24 October 2017 at [43]-[48].

   43. The Applicant accepts that given the Respondent’s business operates 365 days per year it is reasonable for the Respondent to request its shiftworkers to work on some public holidays by including them on the roster.

   44.    However, the Applicant submits that pursuant to s114(3) he was entitled to refuse the request because:

   a. The  absolutist  manner  in  which  the  Respondent’s  request was made  and presented made it an unreasonable request; and

   b.  His refusal in the circumstances was reasonable.

   45. Merely rostering drivers on for work on a public holiday would have been reasonable if the Respondent had been open to the possibility that some drivers might on occasion exercise their right to reasonably refuse to work on a public holiday. However, claiming that employees had no entitlement to refuse to work on a public holiday was unreasonable (as it was incorrect) and insisting that drivers had to use annual or personal leave entitlements in order to be absent from work on a public holiday was also unreasonable as this was contrary to ss 89 and 98.

   46. The Respondent’s references to a ‘valid reason’ for not working on a public holiday did not relate to the entitlement to reasonably refuse to work on a public holiday as per s 114 but, rather, to the managerial discretion to grant or refuse leave as per other leave applications.

   47. The Respondent’s continued reliance on [the Respondent’s] Policy, despite the Applicant’s vociferous concerns about its legality, also impacted on several criteria in s 114(4) regarding reasonableness. For example, telling the Applicant that he could be absent from work on Boxing Day, provided he took annual leave, showed that the Applicant was not required to work on Boxing Day because of the Respondent’s operational requirements.65 The Respondent was prepared to manage its operations without the Applicant and it did in fact do that when it arranged for another driver to cover the Applicant’s shift on Boxing Day.

   48. Any other factors pointing to the reasonableness of the request, such as the Applicant’s entitlement to penalty rates66 and the reasonable notice given by the employer,67 cannot overcome the fact that the manner of the request - which involved a blanket refusal to consider the reasons why an employee might refuse to work on a public holiday and a direction to take annual leave or another form of leave to cover an absence on a public holiday - made the request unreasonable.

1. A key issue to consider is whether, as the Applicant submits, the Respondent’s position was that an employee had no entitlement to refuse work on a public holiday, except if he or she used annual leave or other leave entitlements. The Applicant relies on the notices posted on the bus drivers’ noticeboard, together with correspondence from Mr Hall.

2. The consistent evidence of Mr Hamilton, Mr Hall, and Mr Rossi was that, in the context of the Respondent’s rostering policy (enunciated in the various notices), individual depot managers exercise their discretion in relation to requests for leave and absence from work, having regard to the employee’s particular circumstances. Their evidence was that depot managers deal with requests for leave on a regular basis, and make decisions, having regard to the particular circumstances. Their evidence is that requests to be absent from a rostered day might be satisfied by utilising any appropriate accrued entitlements, by taking leave without pay, but also by the employee taking paid leave at the relevant depot manager’s discretion. I accept the evidence of Mr Hamilton, Mr Hall, and Mr Rossi that the various notices posted by the Respondent are not to be understood in a vacuum. I accept their evidence that the NES (which have been in place since 2009) were posted at their various workplaces, and that employees would have recourse to their TWU delegate to discuss these standards.

3. Having regard to the evidence, I reject the Applicant’s submission that the Respondent’s policy was contrary to the NES because it required drivers who did not wish to work on a public holiday, to take annual leave or other paid leave.[47]

   [47] The Applicant’s Final Submissions filed on 24 October 2017 at [35].

4. I am satisfied that the Respondent’s notices posted on the bus drivers’ noticeboards were intended to deal with the implementation of the Respondent’s rostering policy, and that they were to be understood in the context of the minimum legal requirements under the NES. I also accept the Respondent’s evidence that the reference to “valid reasons” in the notice dated 15 December 2015 and the correspondence to the Applicant from Mr Hamilton dated 21 December 2015, was a reference to the discretion available to depot managers exercised on a day-to-day basis, not merely to grant or refuse leave, but to approve paid absences on a public holiday. I am satisfied that the evidence is that this discretion covers approvals to be absent both on the basis of using any appropriate accrued entitlements, and also to approve paid absences in extenuating circumstances (which include family responsibilities), without the employee having to use their accrued leave entitlements.

5. Consequently, I reject the Applicant’s submission that the Respondent’s references to a “valid reason” for not working on a public holiday did not relate to the entitlement to reasonably refuse to work on a public holiday, but rather, to the managerial discretion to grant or refuse leave.[48]

   [48] Ibid at [46].

6. It is clear from the evidence of Mr Hamilton, Mr Hall and Mr Rossi, that they had formed the view that, between September and December 2015, the Applicant was engaged in a campaign of opposition to the changes in rostering arrangements following the Respondent’s decision to implement its rostering policy at the Packenham Depot. Mr Hamilton’s evidence was that he had formed the view that the Applicant’s suggestion in his email of 24 December 2015 that the Respondent should choose a bus driver who was not rostered, but was willing to work, to work on Boxing Day 2015, and pay the Applicant’s ordinary rate, simply reflected an attempt by the Applicant to revert to the old rostering practice. I find this evidence to be convincing.

7. I have formed the view that, by the Applicant’s email to Mr Hamilton on 24 December 2015, and in circumstances where the Applicant had failed to explain to the Respondent his reason for refusing to work on Boxing Day 2015 (other than a general reference to “family responsibilities”), the Applicant was engaging in his opposition to the Respondent’s shift work rostering practice. This view is supported by reference to the Applicant’s own documentary material; namely, his Application for Leave dated 18 December 2015, in which the Applicant attached a copy of s.114 of the Act and annotated sub-s.114(4) with, “i.e ongoing fair work dispute.”

8. I am satisfied that the Respondent’s request that the Applicant work on Boxing Day 2015 was reasonable, because the totality of the evidence suggests that:

   a)The Respondent’s contractual obligations with PTV required the Respondent to provide bus services 365 days per year, including all public holidays, and bus drivers were employed as shift workers on the basis that drivers may be rostered to work any shift over the 365 days of the year: sub-ss.114(4)(a) and (e) of the Act. Further, as a shift worker, the Applicant was entitled to be paid at a penalty rate of 2.5 (or 250%) for hours worked on public holidays;

   b)the Respondent was concerned about the financial implications under its contractual arrangements with the Victorian Government. The Respondent sough to implement its shift work rostering arrangements at the Pakenham Depot, and to move away from the previous shift work rostering arrangements which had been introduced by Grenda, and continued to be applied at the Pakenham Depot until around March/April 2015. The Respondent readily conceded that there was no impact on its operational requirements, given that there were drivers who were not rostered to work on Boxing Day 2015;

   c)the Applicant’s evidence was that the rotating roster was implemented such that, at least one year ahead, he was aware that he would be rostered on certain weekends and/or public holidays, including Boxing Day 2015. The evidence of the Respondent’s witnesses was that the Applicant was formally advised of the roster for the 2015 Christmas period around two to four weeks in advance;

   d)it is evident that the Applicant’s notification to the Respondent of his intention to not work on Boxing Day 2015 was in the context of an ongoing dispute between them regarding a change from a previous rostering practice. In my view, the Applicant’s action in posting his commentary about a settlement reached in the FWC regarding ANZAC Day 2015 on the noticeboard was deliberately provocative. It was clearly in the Respondent’s mind that the Applicant’s request not to work on Boxing Day 2015 was part of their ongoing dispute. In his application for “public holiday leave”, the Applicant explicitly referred to the “i.e. ongoing fair work dispute”;

   e)the Applicant gave the Respondent two weeks’ notice, without providing any reasons for his decision, that he would not work on Boxing Day. The Applicants action in attaching a copy of s.114 of the Act to his Application for Leave, is unedifying. By his written notations on that copy, I am satisfied that the Applicant’s emphasis was on his entitlement to be absent on public holiday, regardless of the circumstances. It is true that two days before Boxing Day 2015, the Applicant referred to “family responsibilities”. However, the Applicant failed to inform the Respondent what precisely those “family responsibilities” were. I will deal with this issue in more detail below;

   f)the Respondent provided its depot managers with a discretion to waive its roster requirements in particular circumstances. I am satisfied the reference to “valid reason” in the notices posted by the Respondent was a reference to this managerial discretion. It is apparent that, although the Applicant utilised his accrued leave entitlements, during 2015 the Respondent was more than prepared to enable him to spend extended periods of leave because of what were clearly serious family circumstances. The Applicant’s evidence was that he did not work all of the public holidays that he was rostered to work. This evidence is clear support for the Respondent’s evidence that depot managers were given discretion to waive its rostering practice, if the circumstances required it; and

   g)it is disingenuous to argue (as the Applicant has) that the Respondent failed to consider why an employee might refuse to work on a public holiday, in circumstances where the evidence is that the Applicant did not inform the depot managers, nor the General Manager, of the reasons as to why he required the leave, to enable them to consider his request.

Was the Applicant’s refusal reasonable?

1. I am satisfied on the evidence that:

   a)the Applicant did not inform (formally nor during the course of discussions) either Mr Hall or Mr Rossi, and certainly not Mr Hamilton, about the reasons as to why he was refusing to work on Boxing Day 2015;

   b)although the Applicant was formally advised that he would be rostered to work on Boxing Day 2015 around two to four weeks in advance, on his own evidence, the rotating roster would have enabled him to be certain that he would be rostered on Boxing Day 2015. The Applicant was unable to say when he planned for the family event on Boxing Day 2015, but it beggars belief that he would not have been engaged in planning this event for some months prior;

   c)the Applicant conveyed to Mr Hall and Mr Rossi that he simply had a right not to work on Boxing Day 2015. In doing so, he relied on what he believed was established by the settlement arising out of the FWC proceedings;

   d)the Applicant formally advised the Respondent on 18 December 2015 that he intended to take what he referred to as “public holiday leave” on Boxing Day 2015. The Applicant attached a copy of s.114 of the Act. On that copy, he directed attention to the heading of sub-s.114(1): “Employee entitled to be absent on public holiday.” The Applicant did not direct attention to the consideration of his personal circumstances, or family responsibilities (see sub-s.114(4)(b) of the Act), but rather annotated sub-s.114(4)(h) with “i.e. ongoing fair work dispute”;

   e)

   the first time the Applicant gave any reason for his refusal to work was on 24 December 2015 by email to Mr Hamilton, when he used only the phrase “family responsibilities”, as used in

   
   

   sub-s.114(4)(b) of the Act. The Applicant provided no details as to what he meant by “family responsibilities”; and

   f)at the meeting held on 30 December 2015 in relation to the Applicant’s failure to work on Boxing Day 2015, when asked by Mr Hall what the reason was behind his absence, the Applicant said he had a very good reason, and that it was stated in his previous emails to Mr Hamilton.

2. It is appropriate to observe that, on many occasions, Counsel for the Applicant repeatedly asked the Respondent’s witnesses (including Mr Hamilton) whether they had taken steps to ask the Applicant why he did not want to work. In my opinion, there is no obligation pursuant to s.114 of the Act for the Respondent to engage in active enquiries about what the reasons were for the Applicant’s refusal to work. In my opinion, an employee cannot merely assert he or she has a right to refuse to work, by simply repeating generic phrases used in s.114 of the Act. In my opinion, the responsibility is on an employee to provide sufficient details of the basis for his or her refusal to an employer. Section 114 of the Act does not operate in a vacuum. It is implemented in various and diverse workplaces. It makes no sense to impose on an employer or managers an obligation to embark on active enquiries about the employee’s reasons for refusing to work. In my opinion, it is not burdensome for an employee to simply outline to the employer precisely the circumstances which formed the basis for the refusal to work.

3. Having regard to the evidence, I find that the refusal of the Applicant to work his shift on Boxing Day 2015 was not reasonable.

Any Other Matter

1. In my opinion, the circumstances of the case that gave rise to the posting of various notices and communications are relevant to the determination of whether the Respondent contravened the Act; specifically, ss.114, 340, 343 and 117 of the Act. The context is, in reality, an ongoing dispute between the Applicant and the Respondent over the Respondent’s attempts to implement its shift work rostering practice at the Pakenham Depot:

   a)in or around March/April 2015 the Respondent decided to implement its shift work rostering policy for bus drivers at the Pakenham Depot;

   b)by his evidence, the Applicant made it clear that he opposed this change in shift work rostering practice;

   c)a dispute between the Applicant and the Respondent about the Respondent’s new rostering practice commenced in April 2015, when the Applicant refused to work his rostered shift on ANZAC Day, and the Respondent did not pay the Applicant for that day. The evidence is that following the settlement reached between the Respondent and the Applicant through conciliation conferences in the FWC, the Respondent believed that the matter was resolved;

   d)the dispute escalated when the Applicant took it upon himself to post a notice about the FWC proceedings, asserting (incorrectly) that the FWC had ordered the Respondent to pay him for his absence on ANZAC Day;

   e)an escalating concern of the Respondent was that the Applicant had been engaging in a campaign about the Respondent’s shift work rostering practice;

   f)in my opinion, the Respondent’s notices issued from September 2015 onwards were responsive to its concern about the impact of the Applicant’s campaign on other bus drivers, particularly those rostered to work on the next public holiday;

   g)on 18 December 2015, the Applicant made it plain that he intended to take what he referred to as “public holiday leave”. In my opinion, Mr Hamilton is correct to say there is no such entitlement as “public holiday leave”. The entitlement under s.114 of the Act is for an employee to be absent from work on a public holiday, subject to the matters prescribed in s.114 of the Act. The Applicant attached a copy of s.114 of the Act to his email. On that copy, he directed attention to the heading to sub-s.114(1), “Employee entitled to be absent on public holiday.” The Applicant did not direct attention to the consideration of his personal circumstances, but rather, against the consideration contained in s.114(4)(h) of the Act, wrote “i.e. ongoing fair work dispute.” In my opinion, the Applicant made it plain to the Respondent that his refusal to work on his rostered shift work day, Boxing Day 2015, was in reality, part and parcel of their ongoing dispute; and

   h)the Applicant’s reliance on “family responsibilities” was only made known to the Respondent on 24 December 2015, and the Applicant never informed the Respondent of the nature of those responsibilities. In my opinion, the Applicant relied on his family responsibilities only to support his ongoing dispute with the Respondent about the introduction of its shift work rostering practice at the Pakenham Depot.

2. In circumstances where the Applicant failed to give to the Respondent any detail about the nature of his family responsibilities on Boxing Day 2015 prior to the termination of his employment, it is unnecessary for me to consider whether his subsequent evidence, regarding the details of his family responsibilities, would have constituted a reasonable refusal to work.

Conclusion

1. Having found that the Respondent’s request that for the Applicant to work on Boxing Day 2015 was reasonable, and that the Applicant’s refusal was not reasonable, I find that the Applicant was not entitled to be absent on Boxing Day 2015 pursuant to s.114 of the Act.

2. Consequently, I find that:

   a)the Respondent did not contravene s.114 of the Act;

   b)the Applicant did not have a workplace right to be absent from employment on Boxing Day 2015 pursuant to s.114 of the Act, within the meaning of s.341(1)(a) of the Act;

   c)the Respondent did not contravene s.340 of the Act; and

   d)the Respondent did not contravene s.343 of the Act.

3. The Applicant’s allegation that the Respondent contravened s.117 of the Act is based on the claim that the Applicant was entitled to refuse work on Boxing Day 2015, and his claim that the Respondent’s direction to attend work was not a reasonable and lawful direction, and that accordingly the Applicant’s absence did not amount to serious misconduct.

4. In light of my finding that the Applicant was not entitled to be absent from work on Boxing Day 2015 pursuant to s.114 of the Act, the Applicant’s refusal to comply with the Respondent’s lawful direction to attend for work on Boxing Day 2015 entitled the Respondent to summarily dismiss the Applicant. Consequently, I find that the Respondent did not contravene s.117 of the Act.

Section 345 of the Act

1. Section 345 of the Act provides:

   345  Misrepresentations

   (1)  A person must not knowingly or recklessly make a false or misleading representation about:

   (a)  the workplace rights of another person; or

   (b)  the exercise, or the effect of the exercise, of a workplace right by another person.

   Note:  This subsection is a civil remedy provision (see Part 4‑1).

   (2)  Subsection (1) does not apply if the person to whom the representation is made would not be expected to rely on it.

   (Emphasis in original)

2. It is not clear whether the Applicant alleges that the Respondent made false or misleading representations, or misleading representations. This is because in the Applicant’s supplementary submissions, he asserts that the Respondent made a “number of false or misleading representations about the Applicant’s workplace rights.”[49] However, in the Applicant’s final submissions, the Applicant alleges that the Respondent made “…misleading representations about the Applicant’s workplace rights.”[50] I will consider both whether the Respondent made false or misleading representations about the Applicant’s workplace rights.

   [49] The Applicant’s Supplementary Outline of Submission filed on 28 April 2017 at [13].

   [50] The Applicant’s Final Submissions filed on 24 October 2017 at [69].

3. The Applicant alleges that the representations which were false or misleading are contained in the various notices issued by the Respondent on the instruction of Mr Hamilton, and in correspondence from Mr Hamilton. In its supplementary submissions, the Respondent has helpfully set out the representations identified by the Applicant in tabular form.[51] The table identifies the document in which the statement was made, and the relevant annexure in which the statement is found. For ease of reference, the table is reproduced below:

   [51] The Respondent’s Outline of Supplementary Submissions filed on 13 July 2017 at [8].

Applicant’s Supplementary Submissions	Statement	Document statement is found in	Affidavit reference
13(a)	… As 5/7 shift workers it is not reasonable for you to refuse to work because you have agreed by your terms of employment to work to a roster which covers 7 day operations.	Notice to Drivers dated 24 September 2015.	RH-5
13(b)	As shift workers you have agreed to these arrangements…	Notice to Drivers dated 24 September 2015.	RH-5
13(c)	Not all drivers are required to work on public holidays, but if a driver is rostered to work on a day which falls on a public holiday the driver is not entitled to refuse to work that shift.	Notice to Staff dated 15 December 2015	RH-8
13(d)	… if a driver is rostered to work on a day which falls on a public holiday the driver is not entitled to refuse to work that shift	Letter to the Applicant dated 21 December 2015	RH-10
13(e)	We note that you… [are] applying for ‘Public Holiday Leave’. As has been explained to you, and as you are aware, no such leave exists, and the application has been rejected.	Letter to the Applicant dated 21 December 2015	RH-10

1. The parties have referred to various decisions in relation to the meaning and application of s.345 of the Act.

2. The authorities relied on by the Applicant are contained in the footnotes of this extract from his supplementary submissions:[52]

   15.    The word “false” can either mean “intentionally untrue” or “untrue in fact”.[53] By this definition, all of the Respondent’s representations that have been quoted above were false.

   16.    The question of whether a statement is misleading is “…a question of fact to be decided by considering what was said and done against the background of all the surrounding circumstances.”[54] Further, the statement must contain or convey a misrepresentation[55]. ‘Misleading’ is a question of fact to be considered against the background of surrounding circumstances. There need not be necessarily the intention to mislead, the Court must simply determine whether or not the statement(s) in contention carried a misrepresentation.[56]

   (Footnotes in original, amended to reflect correct citation)

   [52] The Applicant’s Supplementary Outline of Submission filed on 28 April 2017 at [15]-[16].

   [53] Murphy v Farmer [1988] HCA 31; (1988) 165 CLR 19.

   [54] Taco Company of Australia Inc v Taco Bell Pty Ltd (1982) 42 ALR 177, 202.

   [55] Ibid.

   [56] Campomar Sociedad Limitada v Nike International Limited [2000] HCA 12; (2000) 202 CLR 45.

3. The Respondent argues: [57]

   [57] The Respondent’s Outline of Supplementary Submissions filed on 13 July 2017 at [9], [11], [13].

   9. In order for there to be a breach of section 345, it is not enough that the Alleged Representations are found to be false or misleading.[58] The person making the them must be found to have either:

   a. Made the representation knowingly – being that they subjectively knew it was false or misleading at the time it was made; OR

   b. Made the representation recklessly – being that they did not care whether it was true or false at the time it was made.

   …

   11. In order for a misleading representation to be made “knowingly”:

   …the person who made the representation must know it was false when the person made it[59]

   [58] Stanley v Father Michael Court [2014] FCCA 156 at [52]; McJannet v Special Broadcasting Services Corporation (t/as SBS Corporation) [2016] FCCA 2937 at [31]

   [59] McJannet v Special Broadcasting Services Corporation (t/as SBS Corporation) [2016] FCCA 2937 at [31].

   …

   13. Recklessness is defined alternatively as:

   “not caring whether [the statement] was true or false”[60]; or

   “consciously disregarding consequences”[61]

   (Footnotes in original, amended to reflect correct citation)

   [60] Director of The Fair Work Building Industry Inspectorate v Baulderstone Pty Ltd & Ors [2014] FCCA 721 at [54]-[58].

   [61] Stanley v Father Michael Court [2014] FCCA 156 at [51].

4. In the Respondent’s final written submissions, the Respondent refers to the decision in Murphy v Farmer [1988] HCA 31; (1988) 165 CLR 19 for the proposition that the word “false” should be read as meaning “purposely untrue”.[62]

   [62] See the judgment of the plurality in Murphy v Farmer (1988) 165 CLR 19 at [10]-[11].

5. I have earlier considered and made findings about the evidence in relation to the various statements by the Respondent that the Applicant contends amount to a contravention of s.345 of the Act. These findings are relevant to and have informed my consideration of whether the Respondent contravened s.345 of the Act. In particular, I have found that the Respondent did not contravene s.114 of the Act by its various notices and communications. I further have found that the Applicant did not exercise a workplace right, as he was not entitled to be absent on his rostered shift work day on Boxing Day 2015 pursuant to s.114 of the Act.

6. In one sense, these findings could be said to entirely dispose of the Applicant’s alleged contravention, because the contravention under s.345 of the Act focuses specifically on representations made about “workplace rights”, or the exercise of or the effect of the exercise of a “workplace right.” However, I will set out below my findings in relation to the Applicant’s allegations that the identified statements made by the Respondent were made in contravention of s.345 of the Act.

7. I am not satisfied that the Respondent knowingly or recklessly made a false statement about the Applicant’s (or indeed other bus drivers’) workplace rights under s.114 of the Act.

8. I have accepted Mr Hamilton’s evidence that the notices posted on the bus drivers’ noticeboards were made in relation to the Respondent’s rostering arrangements, and did not exclude the minimum standards under the NES, which remained immutable rights of all employees.

9. I have accepted all of the Respondent’s witnesses’ evidence that the notices did not exclude the Respondent’s widely implemented practice under which depot managers retained a discretion in relation to rostering arrangements (including on public holidays), to approve absences from work, whether by the employee accessing accrued leave entitlements, unpaid leave, or by the grant of paid absence in extenuating circumstances.

10. I have further accepted the Respondent’s witnesses’ evidence that the reference to “valid reason” in relation to a rostered employee’s absence on a public holiday incorporated a reference to the discretion given to depot managers to depart from the rostered shift arrangements.

11. In these circumstances, I find that none of the statements made and relied on by the Applicant could be said to be purposely untrue, and therefore could not be a false representation, whether knowingly or recklessly made.

12. For the same reasons, I am not satisfied that the statements were misleading representations. In my earlier considerations, I have made the point that the statements need to be considered in context, and not in a vacuum.

13. Even if I had formed the view that taken out of context, the statements were misleading, I would be satisfied that they were not knowingly made by Mr Hamilton. I have accepted his evidence about his understanding and intention in drafting the notices and communications with the Applicant.

14. Finally, even if I was satisfied that the notice or the communications could be said to be misleading about a workplace right under s.114 of the Act (a proposition which I do not accept), I would be satisfied that Mr Hamilton did not make the statements recklessly.

15. Mr Hamilton’s evidence is that he consulted with the TWU, the BAV, and his solicitors, with the specific purpose of ensuring that his written communications, by notice or correspondence, were lawful. Clearly, Mr Hamilton was not reckless about the statements that he made in the notices posted in the Respondent’s depots and in his correspondence with the Applicant.

16. Accordingly, I find that the Respondent did not contravene s.345 of the Act.

Conclusion

1. For the reasons set out in this judgment, I make Orders dismissing the Applicant’s application filed on 1 April 2016.

I certify that the preceding one hundred and sixteen (116) paragraphs are a true copy of the reasons for judgment of Judge Jones

Date: 6 March 2018

Corrections

-In “Representation” section, Counsel for the Applicant amended from “Ms Campbell of JobWatch Inc” to “Ms Campbell”.