Construction, Forestry, Mining & Energy, Industrial Union of Employees, Queensland v Goondiwindi Regional Council

[2018] QIRC 128

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:     

Construction, Forestry, Mining & Energy, Industrial Union of Employees, Queensland v Goondiwindi Regional Council & anor [2018] QIRC 128

PARTIES:       

Construction, Forestry, Mining & Energy, Industrial Union of Employees, Queensland
(Applicant)

v

Goondiwindi Regional Council
(First Respondent)

V

Gary Smith
(Second Respondent)

CASE NO:

GP/2017/5

PROCEEDING:

General Protections 

DELIVERED ON:

HEARING DATES:

28 September 2018

13 December 2017
28 February 2018

MEMBER:

Black IC

HEARD AT:

Goondiwindi
Brisbane

ORDER:

1.      1.     The application is refused

CATCHWORDS:

INDUSTRIAL RELATIONS ACT 2016 – General Protections – whether adverse action had been taken because of the exercise of a workplace right or engagement in industrial activity

LEGISLATION:

CASES:

Industrial Relations Act 2016 (Qld) s 280, s 282, s 284, s 285, s 290, s 291, s 305, s 306, s 541.

Fair Work Act 2009 (Qld) s 361
Work Health and Safety Act 2011 (Qld) part 6
Local Government Act 2009 (Qld) s 197
Local Government Regulation 2012 (Qld) s 280

Shea v Energy Australia Services Pty Ltd (No 7) [2014] FCAFC 167

Shea v TRUenergy Services Pty Ltd (No 6) [2014] FCA 271

General Motors Holden Pty Ltd v Bowling (1976) 12 ALR 605

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

Elliott v Kodak Australasia Pty Ltd [2001] 129 IR 251

National Tertiary Education Union v Royal Melbourne Institute of Technology 234 IR 139

Victoria (Office of Public Prosecutions) v Grant [2014] FCAFC 184

APPEARANCES:

Mr C Massy, Counsel, for the applicant, instructed by Hall Payne Lawyers;
Mr J C Dwyer, Counsel, for the respondents, instructed by McCullough Robertson Lawyers.

Decision

The Application

[1]The Construction, Forestry, Mining & Energy, Industrial Union of Employees, Queensland (the applicant) (CFMEU) lodged an application on 22 June 2017 pursuant to the general protections provisions of the Industrial Relations Act2016 (IR Act). The application relates to actions taken against Barrie Irvin and Kevin Sewell by their employer, the Goondiwindi Regional Council (the first respondent) and by their supervisor, Gary Smith (the second respondent). Kevin Sewell commenced work with the Council in 2005 while Barrie Irvin commenced employment in April 2016.

[2]An amended application was filed by the applicant on 17 August 2017 and a further amended application was filed, without objection, at the commencement of proceedings on 13 December 2017.

Matters for Determination

[3]The applicant alleged that the respondents had contravened s 285 and s 291 of the IR Act in that they had taken adverse action against Irvin and Sewell for exercising a workplace right or taking part in an industrial activity. The adverse action took the form of Council's intention to take disciplinary action and the subsequent decision of Council to issue written warnings.

[4]Under the legislative scheme, to establish a breach of s 285 of the IR Act, the following three elements need to be satisfied:

(i)That the workers had a workplace right or exercised a workplace right (s 284);

(ii)That there has been adverse action (s 282); and

(iii)That the adverse action was taken because the workers had exercised a workplace right (s 285)

[5]The respondents accepted that Irvin and Sewell had exercised a workplace right and that adverse action had been taken against them in the form of warnings issued to both Irvin and Sewell. The respondents denied however that adverse action had been taken because workplace rights had been exercised, or industrial activities had been engaged in, by Irvin and Sewell. It was respondents' position that the adverse action was motivated by a need to address performance shortfalls and that these considerations were the substantial and operative aspect of the decision to take disciplinary action.

[6]The respondents did not accept that the second respondent was involved in any claimed contravention of the Act, or that Irvin's complaints to Workplace Health and Safety Queensland (WHSQ) involved the exercise of a workplace right.

[7]The respondents conceded that, except in relation to the WHSQ complaint, the complaints made by Irvin and Sewell met the definition of s 290(b)(vii) of the Act. Given the concessions made by the respondent, the only matters in dispute were:

(a)Whether the adverse action was taken because of the exercise of the workplace right or engagement in industrial activity;

(b)Whether the second respondent was involved in any contraventions; and

(c)Whether complaints made to WHSQ were made under an industrial law.

[8]The specific complaints and industrial activity constituting the workplace rights exercised are set out in the further amended application. For Sewell, paragraphs 14 to 17 describe the conduct involving the exercise of workplace rights, while paragraphs 15 to 17 describe the conduct relative to the engagement in an industrial activity. For Irvin, paragraphs 25 to 32 describe the conduct involving the exercise of workplace rights, while paragraphs 26, 29, and 30 describe the conduct relative to the engagement in an industrial activity. 

Workplace Rights

[9]The effect of paragraphs 14 to 17 of the further amended application was that Sewell made the following complaints, or complaints of a like nature, in relation to his employment:

§He made a complaint to Council in relation to spraying duties on 29 November 2016;

§He made a complaint to the CFMEU some time in December 2016 about the requirement to perform spraying in unsafe conditions, and the CFMEU organiser, Paul Taylor, contacted the Council about the matter on 7 December 2016;

§A complaint was made on his behalf by Paul Taylor on 14 February 2017 about the outcome of a performance appraisal;

§A further complaint was made on his behalf by Paul Taylor about the performance appraisal outcome on 27 February 2017.

[10]The effect of paragraphs 25 to 32 of the further amended application was that Irvin made the following complaints, or complaints of a like nature, in relation to his employment:

§He made a complaint to Council in relation to spraying duties on 29 November 2016;

§He made a complaint to the CFMEU some time in December 2016 about the requirement to perform spraying in unsafe conditions, and the CFMEU organiser, Paul Taylor, contacted the Council about the matter on 7 December 2016;

§He made a complaint to Dion Jones about spraying activities in a meeting on 17 January 2017;

§He made a further complaint about spraying activities in a meeting with Council representatives on 19 January 2017;

§A complaint was made on his behalf by Paul Taylor on 14 February 2017 about the outcome of a performance appraisal;

§A further complaint was made on his behalf by Paul Taylor about the performance appraisal outcome on 27 February 2017;

§He made a complaint to the WHSQ Inspector about spraying activities and chemical storage on 8 March 207;

§He made a complaint to another WHSQ Inspector about spraying activities on 9 March 2017.

[11]While these latter two complaints can be considered complaints in respect to employment, the respondents argued that complaints to WHSQ inspectors did not constitute a workplace right under s 284(1)(c)(i) of the IR Act because the Work Health and Safety Act 2011 (Qld) was not an act regulating the employer-employee relationship and therefore did not involve a complaint under an "industrial law" as defined in Schedule 5 of the IR Act.

Industrial Activity

[12]The effect of paragraphs 15 to 17 of the further amended application was that Sewell engaged in industrial activity or caused the applicant to engage in industrial activity in that:

§He made a complaint to the applicant in December 2016 in relation to unsafe spraying practices and the applicant contacted the respondent in relation to the complaint;

§The applicant, on behalf of Sewell, made a complaint to the first respondent on 14 February 2017 about the outcome of Sewell's performance appraisal;

§The applicant, on behalf of Sewell, made a complaint to the first respondent on 27 February 2017 about the outcome of Sewell's performance appraisal.

[13]The effect of paragraphs 26, 29 and 30 of the further amended application was that Irvin engaged in industrial activity or caused the applicant to engage in industrial activity in that:  

§He made a complaint to the applicant in December 2016 in relation to unsafe spraying practices and the applicant contacted the respondent in relation to the complaint;

§The applicant, on behalf of Irvin, made a complaint to the first respondent on 14 February 2017 about the outcome of Irvin's performance appraisal;

§The applicant, on behalf of Irvin, made a complaint to the first respondent on 27 February 2017 about the outcome of Irvin's performance appraisal.

[14]It was submitted that the conduct set out in paragraphs 12 and 13 above constitutes conduct that is:

(a)An incident of becoming or remaining a member of the applicant, an industrial association, within the meaning of section 290(a) of the Act;

(b)Participation in lawful activity organised or promoted by the applicant, an industrial association, within the meaning of section 290 (b)(iii) of the Act;

(c)Representing the views, claims or interests of the applicant, an industrial association, within the meaning of section 290 (b)(v) of the Act;

(d)Seeking to be represented by the applicant, an industrial association, within the meaning of section 290 (b)(vii) of the Act.

Adverse Action

[15]For Sewell, the adverse action took the form of:

§The issuance of a Notice of Proposed Disciplinary Action in a meeting on 4 April 2017 in which the second respondent told Sewell words to the effect that "everyone is sick of listening to you about spraying"; and

§The imposition of a formal warning on 2 May 2017 without good cause in circumstances where any further unsatisfactory performance could result in the termination of employment.

[16]For Irvin, the adverse action took the form of:

§The issuance of a Notice of Proposed Disciplinary Action on 5 April 2017; and

§The imposition of a formal warning on 2 May 2017 without good cause in circumstances where any further unsatisfactory performance could result in the termination of employment.

Legislation

[17]The relevant parts of the relevant sections of the (IR Act) are reproduced hereunder:

280 Action to which this part applies

Subject to section 281, this part applies to the following action—

(a)action taken by an employer;

(b)action that affects, is capable of affecting or is taken with intent to affect the activities, relationships or business of an employer;

(c)action that consists of advising, encouraging or inciting, or action taken with intent to coerce, an employer—

(i)   to take, or not take, particular action in relation to another person; or

(ii) to threaten to take, or not take, particular action in relation to another person.

282 Meaning of adverse action

(1)Adverse action is taken by an employer against an employee if the

employer—

(a)    dismisses the employee; or

(b)   injures the employee in his or her employment; or

(c)    alters the position of the employee to the employee's prejudice; or

(d)   discriminates between the employee and other employees of the employer.

…

(6) Adverse action does not include action that is authorised under—

(a)     this Act or any other law of the State; or

(b)     a law of the Commonwealth.

284 Meaning of workplace right

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

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

(b)     is able to start, or participate in, a process or proceedings under an industrial law or industrial instrument; or

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

(i)to an entity having the capacity under an industrial law to seek compliance with that law or an industrial instrument; or

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

(2)In this section—

industrial body means—

(a)     the commission; or

(b)     the court, or another court or commission (however called), exercising industrial law functions and powers corresponding to the commission's functions and powers.

285 Protection

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

(a)     because the other person—

(i)has a workplace right; or

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

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

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

Reverse Onus

[18]In circumstances where it was not in dispute that Irvin and Sewell had exercised a workplace right, and not in dispute that the respondents had taken adverse action against Irvin and Sewell in the form of notices of disciplinary action and warnings, the presumption under s 306 of the IR Act has been enlivened. Section 306 provides:

306  Reason for action to be presumed unless proved otherwise

(1)          Subsection (2) applies if—

(a) in an application in relation to a contravention of a provision of this part, it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and

(b) taking that action for that reason or with that intent would be a contravention of the provision.

(2)It is presumed that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise.

(3)Subsection (2) does not apply in relation to orders for an interim injunction.

[19]Given that s 306 is in materially the same terms as s 361 of the Fair Work Act (FW Act), and in circumstances where s 361 of the federal legislation had been subject to considerable judicial attention, it is accepted that relevant principles are to be found principally by reference to decisions handed down in the Commonwealth jurisdiction. Section 361 of the Fair Work Act (FW Act) in its relevant parts is set out below:

361  Reason for action to be presumed unless proved otherwise

(1)If:

(a)  in an application in relation to a contravention of this Part, it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and

(b)  taking that action for that reason or with that intent would constitute a contravention of this Part;

it is presumed that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise.

(2)  Subsection (1) does not apply in relation to orders for an interim injunction.

Evidence

[20]Evidence for the applicant in the proceedings was given by Paul Taylor, an organiser for the CFMEU, Irvin and Sewell. Evidence for the respondents was given by the following employees of Council: 

Carl Manton, Chief Executive Officer
Dion Jones, Director of Engineering Services
Debbie Elliott, Human Resources Officer
Luke Tanner, Manager Works
Katie Galvin, Technical Officer for Projects, Design and Assets
Gary Smith, Supervisor of the Parks and Gardens crew
Greg Newman, Senior Advisor, Local Government Association

[21]The evidence in chief of all witnesses was provided by affidavit. Manton, Elliott and Newman were not required for cross-examination. 

Spraying Activities

[22]Galvin said that the work of the parks and gardens crew includes spraying for weeds, grubs, paspalum and other plants on and around sporting fields and local facilities. On occasions, the crew may be required to spray weeds near the roads around Goondiwindi on behalf of the Department of Transport and Main Roads.

[23]Persons engaged in spraying herbicides or pesticides are required to be licenced under the Agricultural Chemicals Distribution Control Act 1996. The Government agency responsible for the issuing of licences was at the relevant time either the Department of Agriculture and Fisheries (DAF) or the Department of Primary Industries (DPI). Part of the requirements imposed on licenced persons by DAF is a requirement that a record of spraying activities be kept which discloses the area in which the spraying occurred, relevant climatic data and other information.

[24]While Sewell and Irvin were licenced operators, neither the second respondent, Galvin nor Tanner held licences. Galvin said that in addition to being licenced, workers engaged in spraying were required to complete training in Council's spraying procedures. She referenced a Council work health and safety procedure last reviewed on 25 March 2016 dealing with "Chemical/Weed Spraying". Galvin said that Council procedures regulating spraying activities had been in place since 2009. She said that both Irvin and Sewell were familiar with these procedures.

[25]Sewell's evidence was that he had been a licenced sprayer for the first respondent for about six or seven years. He said that the first respondent had arranged and paid for him to attend a chemical certification course to enable him to become a qualified sprayer. Sewell said that his expertise included knowledge relevant to wind speeds and temperature levels, mixing or water rates, personal protective equipment, weeds or plants to be killed, and the type of chemical to be used to ensure an effective kill.

[26]Irvin held the same qualification as Sewell. His experience prior to his employment at Council was derived from working on a grain farm outside Goondiwindi for about six years where his duties included spraying. Irvin said in his affidavit that he knew the rules and regulations about spraying because he had been dealing with them for a long period while working on the grain farm.

[27]Irvin maintained in his affidavit that from time to time he had been required by Council to conduct spraying in an unsafe manner. Irvin alleged in effect that he had been directed to spray when wind speed and temperature limits were exceeded, that he had been directed to use products that were not registered to be used for that purpose, and that he had not been provided with personal protective equipment. Irvin claimed in his affidavit that he knew the rules and regulations about spraying and that he knew that what Council was doing to be "completely wrong".

[28]Tanner pointed out in his evidence (T1-99) that typically Council's spraying was low risk. He diminished the significance of wind drift and said it was unlikely that Council's spraying operations would represent a risk to property, crops or people. He said that while wind and drift remained a risk factor, a number of considerations operated to mitigate risk.  These considerations include that the majority of the work performed by the parks and gardens crew involved spraying by hand, the volumes sprayed are low, the droplet sizes are large, and the volumes of water mixed with the chemical are high. It was Tanner's evidence that, to his knowledge, there had been no incidents in the last two years involving damage to property or personal injury as a result of wind drift from spraying by Council.

[29]It was clear on the evidence that spraying practices were regulated by DAF or DPI guidelines, by material safety data sheets, and by reference to the specific instructions provided by manufacturers in respect to the safe use of each particular chemical. Typically these instructions were referred to as the label instructions.

[30]Propositions by both Irvin and Sewell to the effect that Council's spraying practices contravened work health and safety regulations or manufacturers' guidelines were disputed by both the second respondent and Galvin. Galvin said that Irvin was wrong in saying that specific limits around wind speed and temperature applied. She said that the limits referred to in Irvin's affidavit were recommended limits only. 

[31]The second respondent pointed out in his affidavit that the specifications on labels are recommendations only and that very little risk was associated with spraying at a low level using a coarse nozzle spray. His standing advice was that workers should contact him if conditions exceeded those specified on the label. The effect of Galvin's evidence was that Irvin and Sewell had been following this instruction and that the DAF log book provided a record of spraying having been stopped on a number of occasions following issues raised by Irvin or Sewell with the second respondent.

[32]Galvin agreed that recommended levels for temperature and wind speed were included in the DAF log book. The effect of her evidence was that levels are recommendations only because there may be variations in levels for different chemicals. Her evidence was to the effect that Council procedures retained a similar flexibility.

[33]The effect of the second respondent's evidence was that the DAF recommended guidelines were to be read in conjunction with the information specific to each particular chemical and set out on the label.

[34]The second respondent said that not all labels specify minimums and/or maximums. He also said the mode of spraying was a factor relevant to drift and risk and distinguished between crop dusting, the use of boom sprays and the use of hand sprays drawing from a small spray bottle. He accepted that the DAF guidelines recommended a maximum wind speed of 20 km per hour and a maximum temperature of 28 degrees.

[35]The proposition put to Galvin during cross-examination was that the label instructions were not adequate or did not deal with sufficient precision with the circumstances confronted by employees. Galvin maintained that all employees engaged in spraying activities were ticketed and competent and knew how to respond (T1-49). Galvin agreed that Council's procedures did not specifically instruct workers to "comply with the labels".

[36]Both Irvin and Sewell said that they were required to complete and maintain a DPI logbook. Sewell said that the log book provided guidance or direction about the location of spraying, wind speed, temperature and the nature of the crop or vegetation being sprayed. He said in particular that the logbook contained information about minimum and maximum temperatures and wind speed for spraying.

[37]Compliance with DAF or DPI requirements associated with the recording of data when spraying occurs appeared haphazard either as a result of limited enforcement activity or because workers neglected to record the relevant information. While Council suggested workers were at fault, the workers maintained that they were not supplied with measurement devices to enable readings to be taken relevant to wind speeds and temperature. Either way, data sheets were not tendered into the evidence and there is no documentary record of climate data applicable at the times that operators were required to spray chemicals.

[38]My understanding of the evidence was that the level of risk associated with chemical spraying varied depending on a range of factors. Climatic conditions such as wind speed and temperature were common risk factors, but a number of other factors also had to be considered in the determination of any risk profile including the type of chemical used, the mechanism of spraying such as boom or hand held equipment, nozzle size, the proportion of water mixed with the chemical to create the spraying fluid, and whether ground or aerial spraying was employed. Risk was diminished with the use of particular types of chemicals, spraying at ground level, hand held spraying with low volumes and the use of a coarse nozzle producing large droplets. Some factors, particularly high temperatures, also influenced the effectiveness of the chemical sprayed and what was referred to as the "kill rate". Variability also included location to location factors impacting on wind speed and temperature. Sheltered locations might diminish otherwise high wind speeds and permit spraying, while similarly spraying might be viable despite high temperatures if spraying was limited to shaded or irrigated areas.

[39]Views diverged about whether it was practicable for the first respondent's spraying procedures to identify maximum temperatures or wind speeds relevant to the use of particular chemicals. The second respondent acknowledged that Council procedures did not specify excessive wind speed or excessive temperature limits. Irvin and Sewell advocated the case for the determination of simple limits or cut-off points which, once reached, would automatically lead to a cessation of spraying. 

[40]Irvin also complained in his affidavit about non-compliance in other areas including inadequacy in the supply of personal protective equipment (PPE) and the use of chemicals contrary to the purpose for which they were registered. Irvin failed to particularise his complaint that chemicals were incorrectly used. If however he was referring to the use of "2,4-D", he was wrong and this was pointed out to him at the meeting held on 29 November 2016. In terms of PPE, Irvin acknowledged that this issue had been resolved but only after he had to fight for the improvement. Given that the issue was not mentioned in exchanges between Taylor and Elliott and was not raised in meetings on 29 November 2016, 17 January 2017 or 19 January 2017, it is presumed that the issue was resolved prior to the end of November 2016.

[41]Both Galvin and the second respondent acknowledged that Irvin's representations were a factor in decisions made to effect improvements in the method of recording and keeping spray data and to acquire additional devices for measuring wind speed and temperature. Irvin had suggested that DPI log books be used to record data rather than the use of individual "spray" forms. Prior to the acquisition of additional devices, the parks and gardens crew had access to one dedicated device and may have relied on mobile phones to provide information on temperature levels and wind speeds.  

29 November 2016 Meeting

[42]In his affidavit, the second respondent said that on 29 November 2016, he directed Irvin, Sewell and Shane Horne to "spray around posts and signs on the side of the road for the day". He said that the workers were using "a long handle spray unit with a coarse nozzle and spraying at ground level around the base of specific posts and signs". The second respondent pointed out that the "benefit of using a coarse nozzle and spraying at ground level was that there was minimal opportunity for the chemical spray dripping and travelling.

[43]It was common ground that around mid-morning on 29 November 2016, the workers stopped work and returned to the depot. When the workers arrived at the depot they approached the second respondent who was with Galvin at the time. The second respondent said in his affidavit that the men came into his office to speak to him regarding their spraying concerns. Soon thereafter it was suggested that the Director of Engineering Services, Dion Jones, should participate in the discussion and Galvin phoned him and asked him to come to the depot.

[44]There were differing versions presented for why work was stopped. Sewell attributed the stoppage to high wind speeds and Irvin said that it was too hot. The Council representatives however were consistent in their view that the workers stopped work because of two reasons. Firstly, they were concerned about the impact of drift on nearby cotton farms and they thought that a 20 kilometre exclusion zone existed, and secondly they were concerned that the chemical being used in the spraying was not authorised. 

[45]Sewell said that he, Irvin and Horne were "out on the highway spraying for fleabane around guide posts" when wind speed was becoming a factor. Sewell said that he, Irvin and Horne decided that the wind speed "was getting too high" and elected to leave the job site and return to the Council depot. Sewell said that when the men arrived at the depot, the second respondent was informed "that the wind was too high".

[46]Irvin's evidence was different in that he said that the workers stopped work because "it was too hot for us to be spraying, so we asked for a meeting with the hierarchy of the Council to discuss our concerns". Irvin said that when he arrived at the depot he told the second respondent that "it's too hot and we need to discuss this because what we are doing is illegal". When Jones arrived, Irvin said that "we told them our concerns about high temperatures and wind."

[47]Irvin said in his reply affidavit that the label requirement was that the 2,4-D should not be sprayed in wind speeds above 15 km per hour and should not be sprayed in temperatures over 30 degrees. Whether wind speeds on the day exceeded 20 km per hour was not factually known and the effect of the second respondent's evidence was that the workers did not make an entry about wind speed in the relevant spray form.

[48]The second respondent said in his evidence in the proceedings that the workers were spraying a herbicide called 2,4-D and bearing a brand name of "Amicide". Exhibit 10 was presented by the applicant as evidence of the label requirements for 2,4-D, including prescription of a maximum wind speed of 20 km per hour. No temperature information was included.

[49]The workers' right to stop work and return to the depot and air their grievances were not questioned. Management discussed matters with Irvin and Galvin for up to an hour, then asked to talk to Jones and waited around until he arrived. They then participated in a discussion with Jones for some time.

[50]Irvin and Sewell did not make mention of the chemical 2,4-D in their first affidavit. However Gavin said that when the workers arrived at the second respondent's office, Irvin questioned whether Council had approval to spray a chemical known as 2,4-D and raised an issue with a 20 kilometre exclusion zone for cotton farms. The second respondent's evidence was that when the workers came into his office, Irvin spoke about a restriction on spraying within 20 kilometres of cotton farms. The second respondent said that Irvin mentioned that he had been speaking with Clem Smith and that Clem Smith had told him that spraying should not occur within 20 km of cotton farms. In terms of the issue relating to the use of 2,4-D, the second respondent said that he had previously notified the parks and gardens crew that the Department of Transport and Main Roads (TMR) had approved the use of a particular chemicals.

[51]When Jones arrived, Irvin said that he did the talking and that he told the second respondent, Galvin and Jones about "our concerns about high temperature and wind". Sewell's recollection was that Irvin complained that the wind and the temperature were too high, and that he was worried about "spray drift". The second respondent said that the meeting discussed the type of chemicals being used, the risks to cotton farms in the region, and the application for the approval of the spot spraying of chemicals with a coarse nozzle. He said that Jones had established that the suggested exclusion area around cotton farms did not exist.

[52]In his evidence in the proceedings, the second respondent agreed with propositions that Irvin and Sewell raised concerns about spraying in hot and windy conditions.

[53]It was Jones' recollection that when Galvin telephoned him and requested his attendance she told him that the issues were the spraying of 2,4-D, and an exclusion zone for cotton farms. When he participated in the discussion, Jones said that the main concerns of Irvin and Sewell were the type of chemical being used and the cotton exclusion zones. He also said that the workers had concerns about personal liability.

[54]Galvin said that neither Irvin nor Sewell complained about heat or wind speed as issues in the meeting and that Irvin's primary concern was the proximity of spraying to cotton farms. Galvin's evidence was consistent with a note that she had made in her diary the following day to the effect that the issue prompting the discussion was a concern about an exclusion zone for cotton farms. The diary note also indicated that when Jones was asked to come to the meeting, it was also arranged for Clem Smith to attend. Clem Smith's attendance was significant because of his association with the cotton farm exclusion issue.

[55]Neither Irvin nor Sewell acknowledged Clem Smith's presence at the depot meeting in their first affidavit, nor did they make any mention of the issue related to the cotton exclusion zone. In his reply affidavit however, Irvin acknowledged that Clem Smith attended the meeting and said that Clem Smith had raised the exclusion for cotton farms. He said that his concerns and Sewell's concerns were solely about wind speeds and temperature. He said that neither himself nor Sewell raised the cotton farm exclusion. Sewell however had a different version. He said in his reply affidavit that Clem Smith had told Irvin and himself about the exclusion zone for cotton farms and that he (Sewell) had raised the issue at the meeting. However he said that he also raised issues of wind speed and temperature and that these were the main issues of concern to him.

[56]In terms of meeting outcomes, Irvin was of the view that he would receive a further response from Council. He said that their concerns were listened to and that they were told by the management representatives that "they would look into it and get back to us". Irvin said that at the end of the meeting the workers were told to return to work and resume spraying until lunch time. Sewell said that when the workers expressed their concerns, Jones told them that he would look into the matters and come back to them, but that the workers should continue spraying.

[57]The effect of the Council's evidence was that spraying was to be conducted consistent with instructions on the label of the chemical container. The second respondent said that the specifications on the labels are recommendations only. He said that the instruction to the workers was that if they had any concerns regarding the climatic conditions, he should be contacted.

[58]Jones said that he told the workers that they were to continue spraying as long as the condition were within the specifications on the label of the chemicals being used. The second respondent said that Jones instructed the workers to continue to spray in accordance with the product label and in large droplets with a coarse nozzle. Galvin said that at the end of the meeting the workers were told that they should spray within the specifications on the label of each individual product.

[59]Sewell and Irvin both said that the workers resumed spraying as instructed. Irvin said that as the day progressed it got hotter and windier, prompting him to ring the second respondent around 11.00am.  Galvin said that Irvin's call to the second respondent was made around 11.45am and that his call was consistent with the instructions given in the meeting. Irvin said that the second respondent told the workers to keep spraying for another hour.

[60]In his reply affidavit Irvin asserted that he had raised concerns about spraying conditions with the second respondent a number of times and that most of the time the second respondent told him to keep spraying. He said in these circumstances, he would keep ringing the second respondent as the wind speed or temperature increased and the second respondent would eventually agree to him stopping spraying. Irvin did not provide particulars and is not known when the events described occurred.

[61]On Council's version, they had answered the issues that prompted the workers' visit and the matters were resolved. The workers had been told that use of the chemical "2,4-D" had been approved and that there were no exclusion zones.

[62]Despite the version of events laid out in his first affidavit, Irvin provided a different version in his second affidavit. On this occasion he said that his principal concern was that he was directed to spray 2,4-D outside label conditions for wind speeds and temperature. In particular, he said that he raised concerns about the wind speeds.

[63]The case prosecuted by the applicant in cross-examination was based on Irvin's second version of events. The case was to the effect that the workers stopped work because they believed that wind speeds were too high to allow for the spraying of Amicide. It was put to Galvin in cross examination that one of the things that Irvin and Sewell were complaining about was the use of the chemical 2,4-D on a windy day.

[64]Galvin accepted that directions for use of a herbicide, Amicide Advance 700 (Exhibit 10), which included 2,4-D as an active constituent included reference to "spray drift restraints" and directed that the chemical should not be applied "where the wind speed is less than three or more than 20 kilometres per hour for ground application …".

[65]The effect of the proposition put was that if the directions on the label were to be followed, then a specific range for wind speed, including a specified maximum of 20 kilometres per hour, had to be complied with. The evidence around the matter is considered in a context where Exhibit 10 is an extract from a document which is marked "Version 21 Mar 2014". It is not known if this version was current as at 29 November 2016 or through early 2017. While there was no direct evidence of wind speed, circumstantial evidence was provided by data from a bureau of meteorology station in the region which indicated that wind speeds in excess of 20 kilometres per hour were recorded on the day.

[66]Contemporaneous accounts of the meeting were provided in an email exchange between Taylor and Elliott. In his email to Elliott dated 7 December 2016, Taylor described the workers' concerns in the following terms:

In a meeting on 29 November with the above Senior staff Barrie alerted these officers that Goondiwindi Council is requiring some workers to perform chemical, herbicide and pesticide spraying in conditions that contravene Qld Dept Primary Industries standards, some of which have been reviewed this year.

Of a major concern is being instructed to perform spraying when the temperature and wind fall outside the recommended safe parameters as stipulated by the DPI.

The chance of spray drift in windy conditions is always a real possibility and these workers are concerned that as Cert holders they would be liable if a contamination event occurred.

Barry Irvin has many years experience as a farm hand and spraying duties made up some of those duties in his previous role.

His only intention is to do his job properly and he is concerned that no official response has yet been forthcoming from Council.

[67]In her reply dated 16 December 2016, Elliott said that senior staff never requested that workers undertake spraying which contravened standards. She confirmed the Council position that the issues addressed were the type of chemical and the proximity of the work site to cotton farms. Jones had advised the workers that on his advice there was no exclusion zone around cotton crops. Jones instructed staff to continue spot spraying in accordance with the product label.

6 December 2016 Depot Meeting

[68]Both Irvin and Sewell said that they raised their concerns about spraying practices with Paul Taylor, an organiser employed by the applicant, on 6 December 2016. Taylor said that he held a depot meeting at the Council on 6 December 2016 and that both Irvin and Sewell attended. He said that after the meeting both Irvin and Sewell expressed their concern to him that they were required to conduct spraying in extreme temperatures and excessive winds and that this requirement had not changed despite their representations to Council. This discussion also included reference to a notice of insufficient care and subsequent warning issued to Sewell, and to questions about the classification levels of the workers.

[69]Taylor said that the discussion ended with him undertaking to email the Council and raise the workers' concerns more formally. He also said that he encouraged Irvin and Sewell to continue liaising with management about their issues related to spraying. In Taylor's email which was sent to Elliott on 7 December 2016, he raised four issues. He raised the disciplinary issues directed at Sewell, he asked whether Irvin's classification might be increased a level because he was the holder of a HR licence, he asked whether Sewell's classification might be increased a level because he had attained his Certificate 3, and he raised "a serious safety issue" which Irvin said that he had raised with management on 29 November 2016. Elliott responded to Taylor's email on 16 December 2016.

17 January 2017 Meeting

[70]Irvin said that on 17 January 2016 the second respondent accused him of recording conversations that had taken place between the second respondent and himself. He said he denied the accusation. The second respondent agreed that he did put the question to Irvin because he had been told by other workers that the recording was occurring. Irvin also said at the same time that the second respondent told him that he had heard rumours to the effect that Irvin had been "interfering with the spraying that other Council crews carry out" and also interfering with spraying practices within his own crew.  The second respondent denied that he had made those comments but he said that he was aware that Irvin had been speaking to other employees about different ways of spraying.

[71]Irvin also alleged that the second respondent told him that he was to meet with Jones to prove that "what I was saying about the spraying was correct". The effect of the second respondent's evidence was that he did speak to Irvin about spraying because Irvin had concerns about spraying in temperatures over 28 degrees and that he referred Irvin to Jones to resolve the issue. After some equivocation, he admitted that he may have told Irvin that he should prove to Jones that his contention about spraying above 28 degree was correct.

[72]There is no dispute that following this discussion and after work on that day, Irvin presented at the Council head office and requested to speak to Jones.

[73]Irvin said that Jones "sat down with me and we discussed the issue at quite some length". Irvin said that during the meeting he pointed out the relevant rules and regulations and also told Jones that he felt bullied and intimidated by the second respondent arising from their exchange earlier that morning.

[74]Irvin said that the meeting ended on the basis that Jones said that he would look into the issues raised, including the bullying claim. Irvin said however that Jones did not get back to him in respect to his bullying claim.

[75]It was Jones' evidence that in the meeting Irvin spoke about his experience in performing spraying duties. He said that he told Irvin that Council's requirement was that he perform spraying within the specifications of the label and not to spray outside those specifications. Jones denied that Irvin claimed that he was being bullied or intimidated by the second respondent. He did not recall or was uncertain if the second respondent was mentioned during the meeting.

[76]A review of email exchanges between Jones, Galvin, the second respondent and Tanner indicates that Irvin requested another meeting with Jones after his discussion with him on 17 January 2017. An email sent by Jones on 19 January 2017 at 12.17 pm to Galvin, the second respondent and Tanner said that Irvin "had been in touch and would like to have another meeting regarding spraying". Jones said that he told Irvin that the meeting could take place either that afternoon or the following afternoon. After consulting with Galvin, Tanner and the second respondent about availability, the meeting was fixed for 2.00 pm that same day (19 January 2019).

19 January 2017 Meeting

[77]The second respondent's evidence was that he was told that Irvin had requested a meeting to discuss wind speeds and temperatures while spraying. The second respondent said that the meeting took place at the depot on 19 January 2017 and involved himself, Jones, Galvin, Tanner, Irvin and Sewell.

[78]At the meeting, Irvin said that he raised information mainly about wind speed and temperature and about the use of a boom gun spray or a hand gun spray. Irvin said that Jones, Tanner, Galvin and the second respondent "all sat there and listened to what I was saying".

[79]Sewell said that he also participated in the meeting and that he raised his concern "about spraying in circumstances where the temperature and wind was higher than the DPI guideline". Sewell said that the management response was limited to a statement that he should follow directions on the subject.

[80]The second respondent agreed that the meeting discussed the recommendations specified in the DPI logbook about wind speeds and temperature. He accepted that Irvin and Sewell maintained that they should not be spraying in temperatures in excess of 28 degrees. It was Galvin's evidence that Irvin and Sewell were told in the meeting that the DPI logbook recorded the recommended conditions only and that they would need to refer to the product labels for accurate specifications regarding spraying conditions.

[81]The second respondent said that the meeting discussed information on the labels of chemical products and the meaning of the term "excessive wind speed and temperature" as it appears on the labels. Galvin agreed that Irvin and Sewell raised the issue of cut-off points for wind speed and temperature. She accepted that one of Irvin and Sewell's complaints was that some of the chemical labels did not specify a maximum temperature or wind speed.

[82]Jones' evidence was that the meeting mainly discussed temperature, wind speed and atmospheric conditions. He said that Irvin and Sewell had concerns about the effectiveness of chemical kills on the weeds and chemical travelling in spray drift. He also said that the discussion included an explanation of the differences between spot spraying and boom spraying and the effects of the different types of spraying.  He subsequently engaged in an email exchange with an agronomist on the subject on 27 February 2017.

[83]Tanner said that the meeting discussed Irvin's concerns about spraying in adverse conditions. He said that the "the point that we made strongly" to Irvin and Sewell was that they were not expected to spray in unsafe conditions. He also said that Irvin and Sewell were informed that "it is not as simple as the guidelines and will often require a risk assessment". Tanner also said that the meeting confirmed that if the workers had any concerns they should consult with their supervisor.

[84]Irvin's evidence about an inconclusive end to the meeting was disputed by both Galvin and the second respondent. Galvin said that Irvin and Sewell were told by Jones that if they if they held concerns about spraying conditions, they should use the available instruments to measure the conditions, and if there were still issues, they should contact their supervisor.

[85]The second respondent said that the meeting ended on the basis that Galvin would complete some research on the issues of wind and speed and ascertain whether any exact level could be fixed which would dictate when spraying should stop. He did not recall that any time limit was agreed within which Galvin would complete her research. He also did not recall either Irvin or Sewell approaching him and asking him when Galvin would get back to them. Tanner said that Galvin was to research the conditions on the product labels and that Jones would contact a local agronomist.

[86]Evidence that Jones did contract the agronomist was provided by an email exchange between Jones and the agronomist dated 27 January and 31 January 2017. Jones' observation on the advice was that it reflected their understanding of the regulatory regime. He noted that while the advice said that temperatures above 28 degrees were to be avoided, there was no prohibition.

[87]Galvin said that she undertook in the meeting to research wind speed and temperature levels and that she subsequently had prepared a spreadsheet showing minimum and maximum conditions for the most frequently used chemicals. In her evidence in the proceedings she said that she did not provide any written advice to the parks and gardens crew but that she had placed the spreadsheet containing her findings in the "spraying cabinet". She said that the spreadsheet contained a list of the chemicals commonly used by Council and, where relevant, the stipulated minimums and maximums.

[88]Galvin also maintained that she had spoken to both Irvin and Sewell about the spreadsheet and also about an email that Jones had received from an agronomist. Irvin said that the meeting ended on the basis that that the management representatives would get back to him, but he said that this did not happen and he denied, in effect, that he had got any subsequent feedback from either Galvin or Jones. He said in particular that Jones never distributed the advice that he had received from the agronomist.

The Complaints

[89]On my understanding of the competing points of view, it appeared to be the case that Irvin and Sewell wanted the respondents to determine specific cut off points for temperature and wind speed, beyond which spraying should stop. The respondents however resisted the specification of cut off points and promoted the need for a more flexible regime in circumstances where Council's spraying practices were confined, risk was mitigated, and where both the regulatory regime and manufacturers guidelines recognised, as a generality, that mandatory prescriptions relating to temperature levels and wind speed were not appropriate.

[90]I accept that despite dissatisfaction on Irvin and Sewell's part with the status quo, and despite the stated intention of Council to investigate particular aspects of their spraying practices, Council's primary response was consistent throughout and that both Irvin and the second respondent knew and understood the standing instruction to spray consistent with the label instructions and subject to supervisory direction.

[91]I accept that any equivocation in the articulation of Council's position or any ambiguity perceived to exist in Councils policies, procedures or practices reflected the regulatory regime which was complex and where numerous variables were at play. Save and except for one example, there was no evidence that any of Irvin and Sewell's assertions if factually sound involved contraventions. Rather, they involved differences of interpretation in a regulatory regime that acknowledged substantial variability in practical circumstances and avoided in many cases inflexible prohibitions on spraying.

[92]The WHSQ intervention occurred because of the applicant's dissatisfaction with the outcomes of the internal Council processes. In these circumstances the applicant sought vindication of Irvin and Sewell's position in a referral of the complaint to the regulator. However the WHSQ involvement did not vindicate Irvin and Sewell, rather it broadly accepted the legitimacy of Council's spraying regime and the appropriateness of the fundamental direction to spray consistent with label instructions or, in the event of doubt, consistent with supervisory direction.

[93]There is no dispute between the parties that complaints were made to the respondents and that in making these complaints Irvin and Sewell were exercising a workplace right. While however the applicant characterised the complaints as responses to unreasonable or unlawful directions, and as matters involving contraventions of the Workplace Health and Safety Act 2011, the factual basis for such a characterisation was not made out on the evidence.

[94]Nor was any significant attempt made in the evidence to make good such a characterisation. While Taylor said that both Irvin and Sewell kept extensive work diaries, they were not produced; while regulations required the keeping of spraying logs, the spraying logs were not produced; while regular complaints were made to the effect that DPI regulations were being breached, none of the regulations were tendered; while it was consistently asserted that manufacturers' guidelines were being breached, save for one exhibit, manufacturers' guidelines or labels were not provided, and no expert evidence was adduced.

[95]In Shea v Energy Australia Services Pty Ltd (No 7), the Full Court of the Federal Court considered whether there was a need for a genuine complaint. The issue arose because of the appellant's attack on the primary Judge's characterisation of complaints made by the worker, and by the respondent's arguments in the appeal, that a workplace right did not include a right to make a vexatious complaint. While the Full Court noted that the ambit of the term "complaint" as employed in the Fair Work Act had not been previously considered, it expressed the following cautionary comments:

Considerable care needs to be exercised before implying into s 341 any constraint that would inhibit an employee's ability to freely exercise the important statutory right to make a "complaint". To too readily imply into the language of ss 340 and 341 the necessity for a complaint to be a "genuine" complaint, necessarily would be productive of argument about whether a "complaint" is bona fide and may serve to discourage those who may well have mixed motives for making a complaint. The expression or drafting of a "complaint" should not require the sophistication or knowledge of an experienced industrial lawyer or legal advice regarding whether it should in fact be made. Care should also be taken before construing the term "right" in s 341 in a manner which may have more far- reaching implications for the meaning of that term when it is employed elsewhere in the Fair WorkAct. When considering the construction of these provisions, there is an obvious need to balance the legitimate interests of both employees and employers in a manner consistent with the objects of the Act as a whole and the objects of Part 3-1.[1]

[96]While expressing these cautionary words the Full Court did not contradict the reasoning of the primary Judge who had concluded in effect that a distinction needed to be drawn between the prosecution of a complaint and behaviours which are linked to the complaint for illegitimate means:

Similarly, the statutory protection would not extend to extraneous matters or conduct associated with, but not reasonably incidental to, the communication of the grievance. It will be a question to be determined in all the circumstances of the particular case whether the content of a communication is a complaint that an employee is able to make, or part thereof, or merely extraneous matter expressed at the same time. Whether relevant conduct falls within the scope of "making" a particular complaint will depend on whether it is required for or reasonably incidental to its communication.

To hold that all conduct and communications come under the aegis of a valid complaint with which they are contemporaneous or associated would effectively prohibit the employer from taking adverse action against an employee for misconduct because it was coupled with a complaint or inquiry that the employee was able to make. An employee could, for example, make mischievous, baseless and damaging accusations of misconduct in the workplace against other employees in an abusive or threatening manner, yet the employer would be prohibited from taking adverse action to discipline or restrain the complainant, even where it was necessary to do so in order to protect other employees. A provision aimed at the protection of workplace rights should not operate to secure immunity from the consequences of misconduct.[2]

[2] Shea v TRUenergy Services Pty Ltd (No 6) [2014] FCA 271, [629]-[630].

[97]French CJ and Crennan J in Barclay[3] (dealt with later in this decision), dealt with a related issue in stating that it is not required that the establishment of the reasons for taking adverse action must be entirely disassociated from the making of the complaints.  

[3] Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500, [62].

[98]In this matter, the evidence has included reference to a number of events which relate to the complaints made by Irvin and Sewell about spraying. These references include the second respondent's criticism of Irvin for leaving the work site without permission to discuss his complaints with a WHSQ inspector, statements that everyone is sick of listening to Sewell complaining about Council's spraying practices, statements that Irvin and Sewell were spending too much time talking when they should be working, statement that Irvin had been interfering in the spraying practices of crews other than the parks and gardens crew, and statements to the effect that Irvin and Sewell have been causing divisions in the parks and gardens crew which have negatively impacted on team work. The applicant has taken exception to some of these events and submitted that some of the incidents demonstrate the probability that the second respondent and Galvin were motivated to commence a disciplinary process against Irvin and Sewell because they had complained about spraying practices.  

[99]In this regard care has to be exercised to avoid conflating the issues and in understanding that while behaviours such as unauthorised absences from the workplace or causing disruptions to team work may be traced back to the initial complaints made about spraying practices, these behaviours do not enjoy any statutory immunity.

Responses to Complaints

[100]Both Irvin and Sewell complained in their affidavits about a failure by Council to communicate answers or responses to them in relation to the matters that they had raised.  The effect of their evidence was that the first respondent on each occasion either prevaricated or said they would look into the issues raised and get back to them, but this never occurred. The view promoted was that their safety concerns were ignored and that there were significant unresolved issues that required Council to provide further responses.

[101]The effect of Sewell's affidavit was that Council had not "clarified their views on the limits" and that "they haven't spoken to us about this at all and instead have just ignored us the whole time. The lack of a response from the Council has been extremely frustrating". Irvin said that after the 29 November 2016 meeting that he waited a couple of weeks to hear back from Council and that when he did not hear anything "eventually we decided to contact Mr Paul Taylor of the CFMEU". 

[102]These views are not consistent with the evidence. Firstly, if Council were to get back to Irvin and Sewell, Irvin and Sewell did not wait for any such response. Only a few days had elapsed following the 29 November 2016 meeting when they took their concerns up with Taylor on 6 December 2016 and asked Taylor to take their issues up with Council. Taylor did this in an email to Elliott dated 7 December 2016.

[406]The WHSQ investigation in early March 2017 should be seen to have brought an end to the differences of opinion about spraying practices and procedures. The WHSQ investigation took place in circumstances where there could be no doubt that in reaching its conclusions that WHSQ were not fully conversant with either the applicant's or Irvin's concerns. The applicant's concerns were expressed in writing and included in Taylor's affidavit, while Irvin's evidence was that after he met with a WHSQ inspector on 8 March 2017 he was invited to attend a further meeting with other inspectors the following day. Irvin's concerns would have been fully ventilated prior to the meeting with Council officers on 10 March 2017.

[407]It is unlikely that senior Council officers would have been motivated after the complaints had been resolved and effectively closed, to engage in reprisal behaviour related to the making of the complaints. There would appear to be no logical basis for Tanner, Jones, Elliott or Manton to conduct themselves in such a manner, nor did the evidence suggest that they would be disposed to act accordingly.

[408]While Tanner did not witness the incidents, his evidence was that Galvin had raised performance concerns relating to Irvin and Sewell with him on a regular basis and that he had been motivated to bring the issues to Manton's attention. Further, as Galvin's supervisor, Tanner would have had a broad understanding of the relevant facts and circumstances. I don’t accept that Tanner would have been susceptible to fabrications or misrepresentations had they been a feature of Galvin's or the second respondents reporting. Nor did the evidence establish that Galvin would be minded to mislead her direct report and other senior officers.

[409]The deliberative nature of the discussion facilitated by Newman ensured that while Jones may not have had direct knowledge of the incidents related to the allegations, and Tanner would have relied to some extent on Galvin's version of events, it is more likely than not that the competing considerations associated with the incidents would have been surfaced and evaluated. It would be inconsistent with the evidence to conclude that the 4 April 2017 meeting involved blind acceptance of versions of events provided by either the second respondent or Galvin.

[410]I accept that the process facilitated by Newman would have been sufficiently robust to ensure that the reasons of any of the decision makers in commencing the disciplinary process would not have been infected by a prohibited reason. The making of complaints by Irvin or Sewell was not a substantial and operative part of the decision making process. I accept that the reasons for commencing the disciplinary process and for taking the disciplinary action were the reasons stated in the notices. There was no contravention of the relevant sections of the IR Act.

[411]It is unnecessary that I decide the respondents' argument that the making of a complaint by the applicant or Irvin to the WHSQ could not have amounted to the exercise of a workplace right under the IR Act.

Order

1.The application is refused

[1] Shea v Energy Australia Services Pty Ltd (No 7) [2014] FCAFC 167, [12].