Claveria v Pilkington Australia Ltd

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FEDERAL COURT OF AUSTRALIA

Claveria v Pilkington Australia Ltd [2007] FCA 1692

INDUSTRIAL LAW – Unlawful termination – prohibited reasons – whether a trade union a competent administrative authority within the meaning of s 659(2)(e) of the Workplace Relations Act 1996 (Cth) – whether recourse to competent administrative authority a reason for termination – reinstatement – back pay – penalty

WORDS AND PHRASES – Competent administrative authorities

Workplace Relations Act 1996 (Cth)
Occupational Health and Safety Act 2004 (Vic)

Laz v Downer Group Ltd (2000) 108 IR 244 cited
Catusanu v Ray’s Guard Security Services (unreported, MD Murphy JR, IR Court of Australia, 29 July 1997) referred to
Andersen v Umbakumba Community Council (1994) 56 IR 102 cited
Mohazab v Dick Smith Electronics Pty Ltd (No 2) (1995) 62 IR 200 cited
AB v Registrar of Births, Deaths and Marriages [2007] FCAFC 140 cited
Povey v Qantas Airwas Ltd (2005) 2223 CLR 189 cited
Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 cited
Zhang v The Royal Australian Chemical Institute Inc (2005) 144 FCR 347 cited
He v Lewin (2004) 137 FCR 266 discussed
Leicester v Western Desert Puntukurnuparna Aboriginal Corporation (unreported, IRCA 16/97, 10 February 1997) referred to
Weier v Modern Alarms [2007] AIRC 432 referred to
Crowley v Parker Hannifin (Australia) Pty Ltd (2006) 154 IR 88 cited
Jennings v Salvation Army (2003) 128 IR 366 cited
Zhang v The Royal Australian Chemical Institute Inc [2004] FCA 1392 cited
Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186 cited
Abbott-Etherington v Houghton Motors Pty Ltd (1995) 63 IR 394 cited
Liddell v Lembke (1994) 127 ALR 342 cited
Anthony Smith & Associates Pty Limited v Sinclair (1996) 67 IR 240 cited
Treadwell v ACCO Australia Pty Ltd (unreported, Federal Court of Australia, VG 538/1997, 16 December 1997, BC9707067) referred to

Convention concerning Termination of Employment at the Initiative of the Employer 1982
Termination of Employment Recommendation 1982

Vienna Convention on the Law of Treaties 1969
Convention concerning Discrimination in Respect of Employment and Occupation 1958
Termination of Employment Recommendation 1963

VICTOR CLAVERIA v PILKINGTON AUSTRALIA LTD (ACN 005 357 522)
VID 216 OF 2007

KENNY J
7 NOVEMBER 2007
MELBOURNE


IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

VID 216 OF 2007

BETWEEN:

VICTOR CLAVERIA
Applicant

AND:

PILKINGTON AUSTRALIA LTD (ACN 005 357 522)
Respondent

JUDGE:

KENNY J

DATE OF ORDER:

7 NOVEMBER 2007

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:

1.On or before 14 November 2007 the parties file draft minutes of orders to give effect to these reasons.

2.The matter be listed for mention, if necessary, on 19 November 2007.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.


IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

VID 216 OF 2007

BETWEEN:

VICTOR CLAVERIA
Applicant

AND:

PILKINGTON AUSTRALIA LTD (ACN 005 357 522)
Respondent

JUDGE:

KENNY J

DATE:

7 NOVEMBER 2007

PLACE:

MELBOURNE

KENNY J

REASONS FOR JUDGMENT

INTRODUCTION

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Details
Case
[2007] FCA 1692
Decision Date

CaseChat Overview and Summary

The case of Claveria v Pilkington Australia Ltd involved a dispute regarding the termination of Mr. Claveria's employment by Pilkington. The key issue was whether Pilkington terminated Mr. Claveria's employment because he had complained to the union about alleged mistreatment by his supervisor, Mr. Duncan. The primary evidence was presented by Pilkington's human resources manager, John Findlay, the line manager at the Laverton factory, Michael Dunstan, and the quality engineer and group developer at the Laverton factory, Amanda Bowkett. The union's shop steward for the afternoon shift at the Laverton factory, Loi Chan Ly, also provided evidence.

The court had to determine whether Mr. Claveria's communication to the union on 24 January 2007 constituted "recourse to competent administrative authorities," or if the action of Mr. Claveria and Mr. Seneviratne constituted the "filing of a complaint." If either was true, then Pilkington contravened s 659(2)(e) of the Act. The court found that the respondent had failed to show that it did not terminate Mr. Claveria’s employment for reasons that included the fact that Mr. Claveria had complained to the union about Mr. Duncan’s mistreatment of him. Furthermore, the court was affirmatively satisfied that it was a reason for Mr. Dunstan deciding to terminate Mr. Claveria’s employment with the respondent on 24 January 2007.

The court's reasoning was based on the evidence presented and the circumstances disclosed by that evidence. It was determined that Pilkington had contravened s 659(2)(e) of the Act. As a result, the court ordered that Mr. Claveria be reinstated to his position with Pilkington, and that Pilkington pay him compensation for lost wages and other benefits from the date of his termination to the date of his reinstatement. The parties were required to file draft minutes of orders by 14 November 2007, and the matter was listed for mention on 19 November 2007.

Orders

Orders of the court

1. On or before 14 November 2007 the parties file draft minutes of orders to give effect to these reasons.

2. The matter be listed for mention, if necessary, on 19 November 2007.

Background

Background to the litigation

Pilkington relied principally on the evidence of its human resources manager, John Findlay, and its line manager at the Laverton factory, Michael Dunstan. Amanda Bowkett also gave evidence. At the relevant time, she was the quality engineer and group developer at the Laverton factory. Relevantly for this proceeding, she acted as scribe at the meeting on 24 January 2007, at which Mr Dunstan told Mr Claveria that his employment was terminated. Loi Chan Ly (at the hearing referred to sometimes as “Mr Ly” and sometimes as “Mr Chan”) also gave evidence. Mr Ly was the shop steward for the afternoon shift at the Laverton factory and he also attended the 24 January 2007 meeting.THE ACCEPTED AND INCIDENTAL FACTS I set out first the undisputed facts, together with the facts that may be disputed but are not critical to the issues falling for resolution. The Laverton factory was a single-level factory of about 3,000 square metres. The factory produced glass windscreens for cars. At the time Pilkington terminated Mr Claveria’s employment, he worked on the assembly line during the afternoon shift. This shift began at 3 pm and ended 11 pm. Mr Claveria’s principal task was to prime the glass, by applying certain chemicals to it. When he was priming, Mr Claveria worked inside a cubicle at one end of the factory floor. The cubicle was closed on all but one side. There was also a window on one side adjacent to the cubicle opening. Amongst other things, the cubicle contained a metal storage cabinet, an extractor, a turntable and workstation, and a ‘snorkel’. The cabinet, which stood towards the back of the cubicle, contained the chemicals used in priming. Here was also the glass to be primed. The operation of the extractor created a good deal of noise. Accordingly, when priming, Mr Claveria wore earplugs, as well as a safety mask, gloves, long-sleeved overalls and boots. The turntable and workstation for work in progress stood about the middle of the cubicle. The snorkel was a pneumatic device used for lifting glass. Primed glass was stored immediately outside the cubicle. There was also a trolley for rejected glass. Mr Claveria’s priming work required him to move around his cubicle, from the back (where he collected glass for priming) to the centre (where he primed the glass) and to the front (where he stored the primed glass). He was required to check the glass before he primed it and to put damaged glass aside. He used the snorkel to lift the glass and the turntable to lay the glass in an appropriate position to be primed. The snorkel moved when it lifted the glass. It was possible to see the movement of the snorkel – a long red object hanging from overhead rails – from elsewhere in the factory, including from an upstairs vantage point adjacent to the line manager’s office. If he encountered no problem, Mr Claveria would complete about 200 or more units of primed glass over an eight hour shift. He took about one to two minutes to prime one unit of glass.

Evidence

Evidence Before The Court

Pilkington argued that, if a contravention of s 659(2)(e) were found, compensation in lieu of reinstatement was the more appropriate remedy. If a penalty were to be imposed, then, so its counsel argued, it should be a modest one in view of Pilkington’s good record.EVIDENCE Mr Claveria gave evidence at the hearing. Others giving evidence on his behalf were Julia Concepcion, his co-worker; Alwin Seneviratne, the workplace union delegate employed full-time at the factory on day shift as a quality auditor; Leo Skourdoumbis, the branch secretary of the FFTS division of the Construction, Forestry, Mining and Energy Union (‘the union’); and Frank Vari, assistant secretary of the union, FFTS branch. Three other union employees with organising roles also gave statements, which were admitted into evidence without objection. Pilkington relied principally on the evidence of its human resources manager, John Findlay, and its line manager at the Laverton factory, Michael Dunstan. Amanda Bowkett also gave evidence. At the relevant time, she was the quality engineer and group developer at the Laverton factory. Relevantly for this proceeding, she acted as scribe at the meeting on 24 January 2007, at which Mr Dunstan told Mr Claveria that his employment was terminated. Loi Chan Ly (at the hearing referred to sometimes as “Mr Ly” and sometimes as “Mr Chan”) also gave evidence. Mr Ly was the shop steward for the afternoon shift at the Laverton factory and he also attended the 24 January 2007 meeting.THE ACCEPTED AND INCIDENTAL FACTS I set out first the undisputed facts, together with the facts that may be disputed but are not critical to the issues falling for resolution. The Laverton factory was a single-level factory of about 3,000 square metres. The factory produced glass windscreens for cars. At the time Pilkington terminated Mr Claveria’s employment, he worked on the assembly line during the afternoon shift. This shift began at 3 pm and ended 11 pm. Mr Claveria’s principal task was to prime the glass, by applying certain chemicals to it. When he was priming, Mr Claveria worked inside a cubicle at one end of the factory floor. The cubicle was closed on all but one side. There was also a window on one side adjacent to the cubicle opening. Amongst other things, the cubicle contained a metal storage cabinet, an extractor, a turntable and workstation, and a ‘snorkel’. The cabinet, which stood towards the back of the cubicle, contained the chemicals used in priming. Here was also the glass to be primed. The operation of the extractor created a good deal of noise. Accordingly, when priming, Mr Claveria wore earplugs, as well as a safety mask, gloves, long-sleeved overalls and boots. The turntable and workstation for work in progress stood about the middle of the cubicle. The snorkel was a pneumatic device used for lifting glass. Primed glass was stored immediately outside the cubicle. There was also a trolley for rejected glass. Mr Claveria’s priming work required him to move around his cubicle, from the back (where he collected glass for priming) to the centre (where he primed the glass) and to the front (where he stored the primed glass). He was required to check the glass before he primed it and to put damaged glass aside. He used the snorkel to lift the glass and the turntable to lay the glass in an appropriate position to be primed. The snorkel moved when it lifted the glass. It was possible to see the movement of the snorkel – a long red object hanging from overhead rails – from elsewhere in the factory, including from an upstairs vantage point adjacent to the line manager’s office. If he encountered no problem, Mr Claveria would complete about 200 or more units of primed glass over an eight hour shift. He took about one to two minutes to prime one unit of glass.

Decision

Reasons for decision

KENNY J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: KENNY J

Having regard to the evidence and the circumstances that the evidence discloses, the respondent has failed to show that it did not terminate Mr Claveria’s employment for reasons that included the fact that Mr Claveria had complained to the union alleging Mr Duncan’s mistreatment of him. Furthermore, this evidence permits me to be affirmatively satisfied that it was a reason for Mr Dunstan deciding on 24 January 2007 to terminate Mr Claveria’s employment with the respondent. CONSIDERATION Subsection 659(2)(e) refers to three events: (1) the filing of a complaint and (2) the participation in proceedings, where the complaint or the proceedings are against an employer involving alleged violation of laws or regulation; and (3) recourse to competent administrative authorities. An employer must not terminate an employee’s employment on account of any of these events. No issue arises in relation to “proceedings”. Accordingly, two matters may now fall for consideration. Did Mr Claveria’s communication to the union on the morning of 24 January 2007 constitute “recourse to competent administrative authorities”? Alternatively, did the action of Mr Claveria, or Mr Claveria and Mr Seneviratne, constitute the “filing of a complaint”? If the answer to either question is ‘yes’, then the respondent contravened s 659(2)(e) of the Act. The expression “competent administrative authorities” is not defined in the Act. It is not an expression that has any particular accepted meaning in Australian law. Nor is it defined in the International Labour Organization (‘ILO’) Convention concerning Termination of Employment at the Initiative of the Employer 1982 (C158) (done at Geneva on 22 June 1982; entered into force on 23 November 1985), from which s 659(2)(e) and the expression “competent administrative authorities” plainly derive. The Act refers to the ILO Convention C158 as “the Termination of Employment Convention”. I refer to it in this way hereafter. Section 659(2)(e) must be construed having regard to its statutory context and purpose, in this case, both general and particular. At least one object of s 659(2)(e) is “to assist in giving effect to the Termination of Employment Convention”: see ss 635(1)(e), 637(5) and [90]–[94] below. Section 659(1) confirms the importance of the Convention in the context of s 659 by proving that an additional object of the section is “to assist in giving effect to” the Termination of Employment Recommendation, 1982 (R166) (done at Geneva on 22 June 1982) (‘Termination of Employment Recommendation 1982’): see also s 637(6). Though it has no direct relevance to the present case, according to its preamble, the Termination of Employment Recommendation 1982 “supplements” the Termination of Employment Convention. Pilkington argued that the words “to assist in giving effect to” in s 635(1)(e), as opposed to the stronger form, “to give effect to”, were significant in the present case. It noted that the legislature had altered the language of the objects provision from its original and stronger form to the present, weaker version.