Cross v Harbour City Ferries Pty Ltd T/As Harbour City Ferries
[2017] FCCA 514
•24 March 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CROSS v HARBOUR CITY FERRIES PTY LTD T/AS HARBOUR CITY FERRIES & ORS | [2017] FCCA 514 |
| Catchwords: INDUSTRIAL LAW – Application under s.351 of the Fair Work Act 2009 (Cth) – whether the applicant had adverse action taken against him by exercising a workplace right to family and carer’s responsibilities – applicant a casual employee – no basis for the claims made – application dismissed. |
| Legislation: Fair Work Act 2009 (Cth), ss.65, 340. 341, 342(1), 343, 345, 351, 355, 361 Sex Discrimination Act 1984 (Cth), s.4A(1) |
| Cases cited: Doyle v Sydney Steel Co Ltd (1936) 56 CLR 545; [1936] HCA 66 Esso Australia Pty Ltd v Australian Workers’ Union (2016) 258 IR 396; [2016] FCAFC 72 Stephens v Australian Postal Corporation [2014] FCA 732 Thompson v Big Bert Pty Ltd t/as Charles Hotel (2007) 168 IR 309; [2007] FCA 1978 |
| Applicant: | CRAIG RICHARD CROSS |
| First Respondent: | HARBOUR CITY FERRIES PTY LTD T/AS HARBOUR CITY FERRIES |
| Second Respondent: | SYDNEY FERRIES CORPORATION |
| Third Respondent: | CRAIG RIECK |
| File Number: | SYG 690 of 2016 |
| Judgment of: | Judge Smith |
| Hearing date: | 13 February & 14 February 2017 |
| Date of Last Submission: | 14 February 2017 |
| Delivered at: | Sydney |
| Delivered on: | 24 March 2017 |
REPRESENTATION
| The applicant appeared in person. |
| Counsel for the Respondents: | Mr D Mahendra |
| Solicitors for the First and Third Respondents: | Corrs Chambers Westgarth |
| Solicitors for the Second Respondent: | Henry Davis York |
ORDERS
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 690 of 2016
| CRAIG RICHARD CROSS |
Applicant
And
| HARBOUR CITY FERRIES PTY LTD T/AS HARBOUR CITY FERRIES |
First Respondent
| SYDNEY FERRIES CORPORATION |
Second Respondent
| CRAIG RIECK |
Third Respondent
REASONS FOR JUDGMENT
Mr Cross was employed by the second respondent (“Sydney Ferries”) as a casual general purpose hand from 2008. In 2011 he worked an average of 1 to 2 shifts per week. In November 2011 he was offered a six week contract by Sydney Ferries but declined the offer. After that time he only one worked one more shift.
On 28 July 2012 the first respondent (“HCF”) assumed the responsibility of running passenger ferry services on the Parramatta River and Port Jackson (known as Sydney Harbour). Under the agreement by which HCF assumed that responsibility from Sydney Ferries, it was required to offer employment to the employees of Sydney Ferries on the same basis as they were employed by Sydney Ferries at the time of the transition.
In May 2012, as part of the lead up to the transition, Mr Cross accepted an offer of employment as a casual General Purpose Hand with HCF. Subsequently, in early July 2012, he was offered a permanent position by Sydney Ferries. If that position had been accepted, Mr Cross would have been employed by HCF as a permanent employee after the transition. Although Mr Cross made some enquiries about that position, he did not accept the offer and it was subsequently withdrawn.
In about October 2012 a decision was made to remove Mr Cross from the list of casual employees of HCF and he was offered no more work.
Consideration
Mr Cross contends in these proceedings that Sydney Ferries, HCF and the General Manager of Operations of both Sydney Ferries and HCF at the relevant times, the third respondent (Mr Rieck), contravened a number of the general protection provisions in the Fair Work Act2009 (Cth) (“Act”) and seeks compensation from Sydney Ferries and HCF.
At the commencement of the hearing Mr Cross told the Court that Mr Rieck had only been joined to the proceedings because Mr Cross could not ascertain the correct legal name of his employer, Sydney Ferries. Although Mr Cross ultimately did not abandon the claim against Mr Rieck, for reasons that will become apparent, there was never any reasonable basis upon which proceedings were brought against him. The proceedings against Mr Rieck will be dismissed.
The proceedings against Sydney Ferries and HCF will also be dismissed because neither of them breached any of the general protection provisions in the Act.
Mr Cross’ claims fall into two groups: those concerning events prior to 28 July 2012 and those concerning events after that date. For that reason, it is convenient to deal with the facts that arise in each of those groups, even though some of the facts in the first group form the background to the events in the second group of claims.
First claim: breach of s.351 of the Act by Sydney Ferries
Mr Cross alleges that Sydney Ferries and Mr Rieck breached s.351 of the Act by taking adverse action against him because he had exercised his rights to family and carer’s responsibilities. The adverse action was that Sydney Ferries did not allocate shifts to Mr Cross and moved him from the Pool A list of casual employees to Pool B. The meaning and effect of those two groups of casual employees is explained later in these reasons.
The allegation is that s.351 was breached by Mr Cross’ employer. That employer was Sydney Ferries, not Mr Rieck. Mr Rieck was employed by Sydney Ferries. The claim against Mr Rieck is baseless and is rejected.
Section 351 of the Act relevantly provides:
Discrimination
(1)An employer must not take adverse action against a person who is an employee, or prospective employee, of the employer because of the person’s … family or carer’s responsibilities …
The expression “adverse action” is relevantly defined in s.342(1) as follows:
(1)The following table sets out circumstances in which a person takes adverse action against another person.
Meaning of adverse action
Item
Column 1
Adverse action is taken by …
Column 2
If …
1
an employer against an employee
the employer:
…
(d) discriminates between the employee and other employees of the employer.
2
a prospective employer against a prospective employee
the prospective employer:
(a) refuses to employ the prospective employee; or
(b) discriminates against the prospective employee in the terms or conditions on which the prospective employer offers to employ the prospective employee.
(Emphasis in original)
Section 361 of the Act provides as follows:
Reason for action to be presumed unless proved otherwise
(1)If:
(a)in an application in relation to a contravention of this Part, it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and
(b)taking that action for that reason or with that intent would constitute a contravention of this Part;
it is presumed 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.
(Emphasis in original)
Flick J explained this provision in Stephens v Australian Postal Corporation [2014] FCA 732 at [13]:
[13]… Neither s 361 nor its predecessor provisions remove the need for an applicant to establish the “objective facts” which form the basis of the respondent’s conduct: Construction, Forestry, Mining and Energy Union v Coal and Allied Operations Pty Ltd [1999] FCA 1531 at [162], (1999) 140 IR 131 at 167 per Branson J; Rojas v Esselte Australia Pty Ltd (No 2) [2008] FCA 1585 at [49], (2008) 177 IR 306 at 321-322 per Moore J. Once those “objective facts” are made out by an applicant and where an allegation is made that a respondent has taken action for a particular reason or with a particular intent, s 361 then shifts the onus to the respondent to prove the contrary. The impact of s 361 “is simply to alleviate the evidentiary difficulty facing the applicant of providing proof of the intent or reason which motivated, or formed part of the motivation for, the respondent’s conduct…”: cf. Construction, Forestry, Mining and Energy Union v Coal and Allied Operations Pty Ltd [1999] FCA 1531 at [162], (1999) 140 IR 131 at 167 per Branson J. When addressing the terms of s 361, French CJ and Crennan J in Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32, (2012) 248 CLR 500 at 517 observed:
[44] … The imposition of the statutory presumption in s 361, and the correlative onus on employers, naturally and ordinarily mean that direct evidence of a decision-maker as to state of mind, intent or purpose will bear upon the question of why adverse action was taken, although the central question remains “why was the adverse action taken?”
[45] This question is one of fact, which must be answered in the light of all the facts established in the proceeding. Generally, it will be extremely difficult to displace the statutory presumption in s 361 if no direct testimony is given by the decision-maker acting on behalf of the employer. Direct evidence of the reason why a decision-maker took adverse action, which may include positive evidence that the action was not taken for a prohibited reason, may be unreliable because of other contradictory evidence given by the decision-maker or because other objective facts are proven which contradict the decision-maker’s evidence. However, direct testimony from the decision-maker which is accepted as reliable is capable of discharging the burden upon an employer even though an employee may be an officer or member of an industrial association and engage in industrial activity.
…
(Emphasis in original)
Mr Cross’ case that Sydney Ferries took adverse action against him is complicated by the fact that he was a casual employee. His arguments did not squarely address that fact and were put forward on the basis that he had some form of entitlement to particular shifts or, on one view of his claim, to be offered 6 week contracts. The compensation sought by Mr Cross is calculated by reference to such contracts.
The term ‘casual employee’ is not relevantly defined and is not one of any precision: Doyle v Sydney Steel Co Ltd (1936) 56 CLR 545; [1936] HCA 66 at 551 (Starke J). Moore J (sitting as the Industrial Relations Court of Australia) in Reed v Blue Line Cruises Ltd (1996) 73 IR 420 said, of casual employment:
A characteristic of engagement on a casual basis is, in my opinion, that the employer can elect to offer employment on a particular day or days and when offered, the employee can elect to work. Another characteristic is that there is no certainty about the period over which employment of this type will be offered. It is the informality, uncertainty and irregularity of the engagement that gives it the characteristic of being casual.
Buchanan J applied the same approach in Thompson v Big Bert Pty Ltd t/as Charles Hotel (2007) 168 IR 309; [2007] FCA 1978 saying (at [58]):
[58] … Traditionally, casual employees were regarded as employed only for the duration of a specific engagement - usually day to day. This may be contrasted with the traditional assumption that the period of engagement of a full-time or part-time employee was week to week as usually reflected in a formal period of notice for termination. These assumptions were not universally applicable and were susceptible to modification - e.g. to a monthly engagement. They are also subject to any relevant modification by or under a statute - e.g. by award.
Mr Cross’ employment by Sydney Ferries was governed by the Sydney Ferries Maritime (AMOU[1] and MUA[2]) Agreement 2009 (“2009 Agreement”). Under that agreement, a casual employee was to be paid by the hour for all the time worked with a 25% casual loading on the base rate which was in lieu of all paid leave: cl.11.15.
[1] Australian Maritime Officer’s Union.
[2] Maritime Union of Australia.
Pursuant to cl.14.34 of the 2009 Agreement, Sydney Ferries had to “endeavour to allocate work to all casual GPH and CAO[3] employees on an equitable basis”. “GPH” was a general purpose hand, the position in which Mr Cross was employed. Under cl.14.34 of the 2009 Agreement, the system of equity was to be the subject of discussions of the Sydney Ferries Consultative Committee which was established to facilitate communication and consultation among the parties to the agreement.
[3] Customer Assistance Officer.
Apart from this requirement, there was no obligation on Sydney Ferries to offer any shifts to any particular casual. Certainly, there was no obligation to offer any particular amount or type of work, let alone contracts for periods of 6 weeks. Casual employees had no entitlement to any annual leave, carer’s leave, personal leave, bereavement leave, parental leave or any other type of leave. They were paid a loading in lieu of any such entitlement, which was set out in the 2009 Agreement.
There was evidence before the Court about the way in which casuals were offered work by Sydney Ferries and then later, HCF. The second respondent, Mr Rieck, was the Business Manager of Sydney Ferries from 2006 until April 2012 when he became acting General Manager, Operations. Mr Rieck was the supervisor of Mr Philip Henry who had the responsibility for the allocation of shifts to casual employees and the allocation of temporary contracts to casual employees.
Mr Henry was the Rostering and Scheduling Supervisor at Sydney Ferries from 2004 until 27 July 2012. From 28 July 2012, he was employed by HCF in the same role.
Mr Henry gave evidence that he first built rosters and then allocated shifts to employees as follows:
a)First, he allocated shifts to permanent employees in accordance with their respective positions;
b)next, he allocated leave to permanent employees and removed those employees on leave from the roster for their period of leave;
c)he then organised leave relief employees to cover the periods of leave; and
d)finally, he allocated any remaining gaps in the roster to casual staff on the basis of a temporary contract.
The way in which roster lines were allocated to casual staff on temporary contracts was according to a “taxi rank procedure”. This was done by two pools of casuals: Pool A and Pool B. Pool A casuals were typically more senior than Pool B casuals and were sometimes allocated temporary contracts to relieve permanent employees.
Pool A casuals were allocated any rosters and shifts that otherwise were not allocated to permanent staff and Pool B casuals were allocated any shifts that remained. Casual employees were also available to be offered shifts to cover other gaps in the roster which arose from time to time.
The allocation of other ad hoc shifts was the role of Staff Allocation Officers under Mr Henry’s supervision. A list of Pool A and Pool B casuals was kept for the purpose of allocating unfilled roster lines on a temporary basis each week, which Mr Henry referred to in allocating temporary contracts.
Mr Henry gave evidence that when allocating temporary contracts to casuals, he would refer to the following information, in the following order, in order to determine each casual’s suitability for that temporary contract:
(a)the employee’s position on the Pool lists; and
(b)whether or not that employee had undertaken the training required to work the temporary contract.
This process was done weekly by Mr Henry and employees were usually given at least seven days’ notice for 2 - 12 week periods. However, in some instances that was not possible and less notice was given.
Mr Henry said that if a casual rejected a contract for any reason he would refer it to Human Resources by email and the casual was then placed at the bottom of the “cab rank list”. It was not Mr Henry’s practice to enquire into the reason why a casual rejected a contract. Mr Henry gave evidence that on some occasions, a casual might tell him why he or she knocked back a contract and that reason would be passed on to Human Resources. However, whether or not someone had family or carer’s responsibilities, or had made a complaint or enquiry, was not a matter that Mr Henry considered when allocating temporary contracts. He simply followed the process described above.
I accept Mr Henry’s evidence. Not only was it consistent with other evidence before the Court but he was not tested on any aspect of it and he gave oral evidence in a forthright and honest manner.
Mr Halim was a Staff Allocation Officer at Sydney Ferries from November 2006 until he transferred to HCF in July 2012. His role focused on the daily implementation of roster plans which involved ensuring that there were sufficient employees allocated to each roster to meet daily operational and fleet services. It was Mr Halim’s responsibility to allocate casual employees to fill any day to day vacancies on the roster which might arise because there were not enough permanent employees to fill the available roles, or because permanent employees were taking planned or unplanned leave.
Mr Halim gave evidence about the operation of Pool A and Pool B which was consistent with that of Mr Henry.
Mr Halim’s evidence was that he offered ad hoc shifts to casual employees based on the following factors:
a)a casual employee’s seniority, based on the Pool they were in and their position on the pool list. He would allocate ad hoc shifts to Pool A casuals who were not working a temporary contract at the time, then moved to Pool B casuals. If a casual employee had rejected three or more shifts or temporary contracts, Mr Halim moved them to the bottom of the Pool B list and would only call them after calling other casual employees, for shift allocations;
b)whether an employee held the training required to work the available shift. To determine this, Mr Halim looked at the General Purpose Hand training records from the Microsoft Access database kept by Sydney Ferries. If a casual did not have the training required for a particular shift, or did not have currency in the required training, then they were not able to work that shift;
c)how many hours the available and appropriately trained employees otherwise had received that week. He tried to allocate shifts as evenly as he could to all casuals to avoid senior casuals taking all of the shifts and other casuals not having any shifts.
Mr Halim gave evidence that he always followed this procedure and that it was a protocol that the other Staff Allocation Officers also followed the same procedure.
Mr Halim offered a shift to a casual employee by calling that casual by telephone. If the casual indicated that he or she was unable to take the shift Mr Halim would move to the next appropriate casual on the list according to the procedure set out at [33] above. He did not enquire as to why a casual knocked back the shift and did not make any record of the reason given by the casual. He only ever recorded whether the shift was accepted or knocked back.
The only time that Mr Halim said that he departed from this procedure was when there was less than two hours’ notice prior to the commencement of the relevant shift. In those circumstances, Mr Halim would call a casual who he knew was likely to accept the shift and would be able to attend work straight away.
Mr Halim said that the fact that an employee had family or carer’s responsibilities, or had made a complaint or enquiry was not a factor that he would consider when deciding whether to offer a shift to that person. Further, he never received any direction or advice from Mr Rieck, Mr Henry or any other Sydney Ferries employee telling him not to offer the applicant any shifts or contracts.
I accept Mr Halim’s evidence. There was no serious challenge to it and Mr Halim impressed as a straightforward and honest witness. Furthermore, the system deposed to by both Mr Halim and Mr Henry appears to be a sensible and rational approach to the task of allocating work to ensure that the needs of both the employees and the employer were met as far as possible.
With that background in mind it is necessary to examine the relevant facts in a little more detail.
Mr Cross was a casual employee of Sydney Ferries from 2008. In his evidence he said that in 2011 he worked an average of about 3 to 5 shifts a week. However, that evidence was exaggerated. His employment records show that, in fact, he worked 8 shifts in May 2011; 13 shifts in June 2011; 10 shifts in July 2011; 7 shifts in August 2011; 6 shifts in September 2011; 2 shifts in October 2011; and 6 shifts in November 2011. That does not reveal a regular and established pattern of work and was between 1 and 2 shifts per week on average, not the 3 to 5 shifts deposed to by Mr Cross.
Mr Cross gave evidence that in November 2011 he turned down a 6 week contract offered by Sydney Ferries “due to Family & Carers responsibilities, a previously booked extended family holiday to Fiji”. He said that this was offered by Mr Rieck. I am not satisfied that it was. The offer of temporary contracts was not part of Mr Rieck’s ordinary duties but rather, that of Mr Henry.
In his submissions, Mr Cross stated that he explained his family responsibilities at that time to Mr Rieck. However, I reject that assertion. The assertion is based upon, or at least said to be supported by, a letter from Mr Cross to Mr Rieck dated 24 May 2012 in which he stated:
…
Being a father and having to care for my child I am unable to re organise my life to suit Sydney Ferries for six week contracts. No day care in Sydney will let you change the days of care according to a casual contract work position. …
That letter provides no support for Mr Cross’ submission. First, it was written at least six months after the event. Secondly, going to Fiji for a holiday has nothing to do with the availability of day care. Indeed, one would have thought that day care was not necessary if Mr Cross’ child was to have gone to Fiji with him. I note in passing that there was in fact no direct evidence that Mr Cross even had a child at the end of 2011; however, I will assume for the purpose of these reasons that he did.
There is also a real question whether a holiday is part of a person’s “family or carer’s responsibilities” within the meaning of the Act. The phrase “family or carer’s responsibilities” derives from its use in the Sex Discrimination Act 1984 (Cth); s.4A(1) which provides:
Meaning of family responsibilities
(1)In this Act, family responsibilities, in relation to a person, means responsibilities of the person to care for or support:
(a)a dependent child of the person; or
(b)any other immediate family member who is in need of care and support.
(Emphasis in original)
I do not accept the suggestion that it was any part of Mr Cross’ family or carer’s responsibilities to take his child on holiday to Fiji. If it were otherwise most parents and carers in Australia would be derelict in their duties.
Further, to the extent that the “family or carer’s responsibilities” did not include the holiday, Mr Cross did not explain just what those responsibilities were.
I am not satisfied on the evidence that Mr Cross turned down the six week contract in November 2011 because of any family responsibilities.
In any event, even if I were wrong about that, whatever Mr Cross’ actual reasons were for not accepting work offered by Sydney Ferries, I find that he did not give those reasons to Sydney Ferries. Rather, the first time he mentioned any family or carer’s responsibilities to Sydney Ferries was some six months later in his letter to Mr Rieck dated 24 May 2012.
First, Mr Cross did not give evidence that he actually told anybody at Sydney Ferries about his family responsibilities in connection with rejecting the offer of a 6 week contract in November 2011. That suggestion only arose in his submissions. Secondly, Mr Rieck’s evidence was that, prior to his communication with Mr Cross in May 2012, he did not know Mr Cross personally and was unaware of any of his personal circumstances, including whether he had a partner or children.
Following Mr Cross’ rejection of the 6 week contract in November 2011, he was only offered two more shifts for the remainder of 2011. Mr Cross refused them both on the grounds that the shifts were offered at short notice and were on Christmas Eve and New Year’s Eve. That refusal is consistent with his employment as a casual employee. He was next offered a shift in February 2012. He accepted that offer and, as it turned out, worked his last shift for Sydney Ferries.
Mr Henry explained that once a casual employee turned down the offer of a contract for any reason, he or she was moved to the bottom of the casual list. Once he or she turned down 3 offers of work, the same result ensued.
By letter dated 4 May 2012, Mr Rieck wrote to Mr Cross concerning the allocation of temporary contracts on the basis of the Pool A and Pool B ranking system. The letter relevantly stated:
The current process prioritises temporary contract work to the Pool A casuals. To remain in Pool A a casual staff member needs to be available for regular contract work. It is noted that you have been unavailable (or un-contactable to be offered contract work) for approximately 12 months. You have undertaken ad hoc casual shifts more in keeping with the working patterns of Pool B casual staff
It is therefore proposed that you be moved from Pool A to the top of Pool B. This is [sic] no way impacts your ability to continue undertaking ad hoc casual work with Sydney Ferries. Further, you are able to move back into Pool A in the future if your availability profile changes.
The letter is odd in that, apart from what it says, there is no evidence at all that Mr Cross was ever in Pool A.
In any event, on 10 May 2012 Sydney Ferries wrote to Mr Cross enclosing an offer of employment with HCF dated 9 May 2012. The offer of employment was on the same terms and conditions as he had been employed by Sydney Ferries, namely as a casual General Purpose Hand, on a casual basis. The offer stated:
Acceptance of this offer will mean that upon commencing with Harbour City Ferries, you will be deemed to have resigned from Sydney Ferries and thereby cease to be an employee of Sydney Ferries.
Mr Cross accepted that offer.
On 24 May 2012 Mr Cross responded to Mr Rieck’s letter dated 4 May 2012. The letter is in response to the one referred to at [52] above. It relevantly stated (without correction):
…
You propose in the letter to move my position is this in line with the guidelines and policy?
As explained to you in November 2011 I was away for the first 10 days of December 2011 and was unable to take a contract in that period, but I explained that I would be available for the whole summer period.
Who marked or noted that I was un-contactable for the whole summer period?
I was offered shifts on Christmas eve and on New Year’s Eve both at late notice while other casual (behind myself on the Pool A & B seniority list) were offered casual shifts thru out [sic] the summer period.
Being a father and having to care for my child I am unable to re organise my life to suit Sydney Ferries for six week contracts. No day care in Sydney will let you change the days of care according to a casual contract work position. Is this system fair to people with children in their care opposed to casual staff without children.
…
The events following this sequence of events are not relevant to the first claim by Mr Cross and are taken up later in these reasons in the consideration of his other claims.
As I have mentioned, one difficulty facing Mr Cross is that he has not squarely addressed the fact that he was a casual employee. There was no firm advance commitment to the duration of any employment or the days or hours that he would work. There was also no regular or established pattern that he worked in the relevant period. In other words, Mr Cross was in fact no more than a prospective employee of Sydney Ferries who might be offered work on an ad hoc basis. In light of that, in order for there to have been adverse action by Sydney Ferries, Mr Cross has to establish that Sydney Ferries discriminated against him in the terms or conditions on which it offered to employ him.
Mr Cross did not attempt to establish that. For that reason, this claim must fail. There was, in short, no adverse action.
In any event, even if I were wrong about that, Mr Cross has not established even the basic facts which might give rise to a claim that Sydney Ferries took adverse action against him for one of the discriminatory bases referred to in s.351 of the Act.
Mr Cross’ claim is, in short, that he rejected the offer of a six week contract in order to fulfil family responsibilities. He claims that that was the reason for which he was offered no further work, and for which Mr Rieck proposed to move him from Pool A to Pool B. However, I am not satisfied that Mr Cross turned down the six week contract due to family responsibilities. He simply wanted to go on holidays. That was his prerogative. Similarly, it was his prerogative to knock back work offered at short notice on Christmas Eve and New Year’s Eve. However, there is nothing whatsoever to give rise to the suggestion that the consequent failure by Sydney Ferries to offer Mr Cross work (with the exception of one occasion in February 2012) was for the reasons suggested by Mr Cross.
Further, and in the alternative, I am satisfied on the evidence of the witnesses for Sydney Ferries that, at no stage in determining who was and who was not offered casual work for a particular shift, was any regard had to the family responsibilities, or lack thereof, of the casual employee in question. Rather, there was a system in place which was developed in consultation with the parties through operation of the 2009 Agreement. This system was followed by Mr Halim in accordance with his practice and that adopted by other employees with the same responsibilities. There was no direction given to Mr Halim or to any other employee not to give work to Mr Cross for any particular reason.
Further, the basis upon which Mr Rieck proposed to move Mr Cross from Pool A was upon his understanding of what he had been told about Mr Cross, and no other reason. That is, that Mr Cross had been difficult, if not impossible to contact. I accept his evidence that he had no knowledge of Mr Cross personally and, in particular, that he was unaware of any family responsibilities held by him until Mr Cross replied to his letter of 4 May 2012.
For those reasons the first claim is rejected.
Second claim: refusal to answer Mr Cross’ enquiry required for his carer’s responsibilities
After Mr Cross had accepted an offer of employment as a casual employee with HCF, on 4 July 2012 he was offered permanent employment with Sydney Ferries as a General Purpose Hand in the Operations Division to commence from 26 July 2012. This was, in effect, an opportunity to become a permanent employee of HCF because HCF was bound to employ any current employee of Sydney Ferries on the same basis of his or her employment with Sydney Ferries.
Mr Cross claims that when he received this offer he requested roster details due to his family responsibilities. He says that he needed clarification on his roster due to family responsibilities to organise day care for his child and that he needed leave in the first week of October to attend family commitments.
Mr Cross says that Mr Rieck did not provide the roster information requested and that as he could not accept the position without that information, the offer of employment was withdrawn. Mr Cross claims that his employment was injured because of his family responsibilities and that Mr Rieck breached s.351 of the Act.
Once again, Mr Cross faces the difficulty that Mr Rieck was not his employer. For that reason alone this claim must fail. However, even if it is understood to be a claim against Sydney Ferries, it must also fail for a number of reasons.
First, the “adverse action” said to have been taken by Sydney Ferries was that it injured Mr Cross in his employment. That did not occur. All that happened was that an offer of employment was made, not accepted and then was withdrawn.
Secondly, even if there were some “adverse action” taken by Sydney Ferries within the meaning of s.342(1) of the Act, I am satisfied that that action was not taken for any prohibited reason and, in particular, not because of any carer’s responsibilities that might have been held by Mr Cross.
This claim is based upon the assertion that Mr Cross required information about shifts for his family responsibilities, in other words, to organise day care. I do not accept that.
On 19 July 2012 Mr Rieck wrote to Mr Cross concerning his enquiry about the offer of permanent employment. The email relevantly stated (without corrections):
I refer to the recent offer of permanent employment made by Sydney Ferries.
I am advised there are three issues of concern to you:
1.Location – I cannot confirm the location of the roster line you may be assigned. Sydney ferries GPH work shifts commencing at Manly, Circular Quay or Balmain
2.EBA – I will ask our HR team to forward you a copy of the most recent EBA finalised during the transition period
3.Leave – Unfortunately I cannot guarantee you [sic] leave will be available in October.. This will depend on the availability of leave slots
Unfortunately I need to finalise your status in relation to the offer. Could you please confirm ASAP tomorrow?? If we cannot agree a final outcome tomorrow I believe Sydney Ferries may need to withdraw its offer.
I look forward to hearing from you soon.
There was no response to this email.
There was no reference in this email to family responsibilities. If indeed, Mr Cross’ family responsibilities were of any concern to him in connection with the decision of whether to accept permanent employment, and it had been raised by him with Mr Rieck or indeed anybody else at Sydney Ferries, it would be reasonable to expect Mr Cross to have raised this in response to this email. The fact that he did not, suggests that family responsibilities were never raised by him in connection with the offer of permanent employment.
On the other hand, there is evidence to suggest that Mr Cross’ real concern was that he had booked a holiday for a friend’s wedding in October 2012.
First, there is a reference to a holiday in the email from Mr Rieck.
Secondly, in an email from Mr Cross to Mr Moy, the General Manager of People and Culture of HCF, dated 28 March 2013 Mr Cross wrote:
…
I received a job offer in September 2012 [sic] and subsequently was going to take the position however I had a holiday booked and was unavailable to work from the 21st – 27th October 2012. I was advised by Craig Reick [sic] that I would not be able to take this time off, however I have information that one person who was much lower than me on the seniority list took 3 months off after taking the permanent position.
In a later email to Mr Moy dated 30 April 2013, Mr Cross wrote:
…
Since the job offer dated the 26 July 2012 [sic] and my concern was I needed one week off due to a prior commitment in October 2012 this would have been under HCF management.
…
On 28 July 2013 Mr Cross wrote to a representative of the Maritime Union of Australia (“MUA”) by email asking for assistance. He wrote relevantly:
Last year I was offered a permanent job with Sydney Ferries starting July 2012. I wanted to take the position but I requested one week off in October 2012 as a friend was getting married this was not granted by management, However I discovered someone with less seniority that myself took the job and then took three months off. With the new operator coming in and my position at number one on the seniority list I took this as bias towards myself and was going to take the next permanent position once it became available.
…
(emphasis added)
These emails are entirely inconsistent with Mr Cross’ claim. I find that he has fabricated that claim in order to have some legal basis to bring an action against Sydney Ferries.
I do not arrive at that conclusion lightly. There are a number of bases upon which I have done so. First, I can see no other reasonable explanation for the fact that there was no previous mention of the family responsibilities that Mr Cross claims to have had at the time. Secondly, as I have noted, all of the documentary material suggests that Mr Cross’ predominant concern was his friend’s impending marriage. Thirdly, Mr Cross was not an impressive witness. He appeared evasive in response to straightforward questions asked of him in cross-examination and he exaggerated facts on a number of occasions giving the impression that he was willing to give whatever evidence he considered might suit his case.
This claim is entirely without foundation and is rejected.
Third claim: Mr Rieck withdrew an offer of permanent employment; failed to offer any shifts; removed Mr Cross from the seniority list and failed to issue Mr Cross with a return to work order
Mr Cross’ third claim is that HCF and Mr Rieck took the following adverse action for prohibited reasons:
a)Mr Rieck withdrew an offer of permanent employment;
b)HCF failed to offer Mr Cross any shifts; and
c)HCF removed Mr Cross from the seniority casual list without consultation and failed to issue Mr Cross with a return to work order or an “abandonment of employment” notice.
Mr Cross says that the prohibited reasons for those actions were:
a)he was entitled to request a change in working arrangements: s.65 of the Act; and
b)he was entitled to make complaints and enquiries into his employment as per ss.340 and 341 of the Act.
As with the other claims concerning Mr Rieck, this claim in respect of him is misconceived. Mr Rieck was never, and never going to be, an employer of Mr Cross. This claim against him is rejected.
Section 65 of the Act relevantly provides that if an employee is the parent of, or has responsibility for the care of a child who is of school age or younger, and the employee would like to change his or her working arrangements because of that fact, then the employee may request the employer for a change in working arrangements relating to those circumstances.
Mr Cross claims that he was seeking to exercise his right under s.65 by asking Mr Rieck for details of the roster in connection with the offer of permanent employment with Sydney Ferries. I have already rejected Mr Cross’ claim to have raised the issue of family responsibilities with Mr Rieck in July 2012. For that reason the claim relying on s.65 must also fail.
In any event, a request under s.65 must be in writing and set out details of the change sought and of the reasons for the change: s.65(3). Even on Mr Cross’ own evidence there was never any such request. For that additional reason this particular claim must fail.
The remaining claim is that HCF took adverse action against Mr Cross because he made a complaint and enquiry into his employment, that is, he requested information about his roster because he proposed to take one week’s holiday in October 2012.
Before dealing with that contention it is necessary to outline a few further facts.
Mr Rieck gave evidence about the withdrawal of the offer of a permanent position that had been made to Mr Cross. In his email of 19 July 2012 set out at [72] above, he asked Mr Cross to confirm acceptance of the offer as soon as possible and at least by the following day or that Sydney Ferries may need to withdraw the offer. Mr Rieck explained that this was because the permanent employment would have commenced on 26 July 2012, being the following Thursday. Arrangements needed to be made in relation to staff resourcing, allocation of rosters and hiring of new casual employees to replace the employees who would become permanent. In those circumstances, when Mr Cross had not accepted the offer of permanent employment by 26 July 2012, Mr Rieck wrote to him by email of that date advising him that the offer had been withdrawn.
Mr Rieck explained that the only reason he withdrew the offer was because Mr Cross had not accepted the offer before it was due to commence, that is on 26 July 2012. He gave evidence that the fact that Mr Cross had family or carer’s responsibilities, or could exercise a workplace right, was not a reason for the withdrawal of the offer.
I accept that evidence. There is no basis to consider that there was any other reason for which the offer of permanent employment was withdrawn. In his email of 19 July 2012, Mr Rieck expressly referred to Mr Cross’ request concerning a holiday later in the year and yet the offer remained open for acceptance by Mr Cross until the following week when the employment was to have commenced.
After the responsibility for the operation of passenger ferry services in Sydney transferred from Sydney Ferries to HCF in July 2012, the employees of Sydney Ferries were transferred to HCF in the same positions. Mr Cross became a casual employee of HCF. Mr Rieck became the acting General Manager, Operations at HCF (although he subsequently became a Service Planning and Delivery Manager). Mr Henry became a Roster and Planning Supervisor at HCF and Mr Halim became a Staff Allocation Officer at HCF.
Mr Henry and Mr Halim gave evidence that their practice in respect of the preparation of rosters and the allocation of casual work remained the same in their jobs at HCF as it had been a Sydney Ferries.
In light of that evidence, I find that the request by Mr Cross for roster information in connection with his desire to have a holiday later in 2012 had no bearing on the lack of any offer of casual employment by HCF.
I would add at this point, that I have such little confidence in Mr Cross’ truthfulness as a witness that I am not satisfied that he was not offered work.
Even if Mr Cross had not been offered work, that fact was not for any reason prohibited by the Act, rather, it was by operation of the procedure by which all casual employment was offered by Sydney Ferries and subsequently HCF.
Mr Rieck gave evidence that, in or about October 2012, he removed Mr Cross from his working copy of the Pool B list, of casual employees. He said that he did that because, to the best of his knowledge, Mr Cross no longer worked with HCF. Mr Rieck explained that he undertook sporadic clean-ups of the casual roster because, due to the nature of casual employment, casual employees sometimes move on to other jobs without advising HCF. His standard practice was to discuss with the Staff Allocations Officers when a particular casual employee last worked, to check pay records, and, if the casual employee had not worked for two or three months or longer, to remove him or her from the list. Mr Rieck said that he believes that he followed that process to remove Mr Cross’ name from the working copy of the casual list and that the fact that Mr Cross had family or carer’s responsibilities, or was entitled to the benefit of workplace instrument, or had workplace rights was not a reason for him removing him from the list.
I have no reason to doubt Mr Rieck’s evidence in this respect. As I have said, I found Mr Rieck to be a forthright witness.
In light of that evidence, none of the actions impugned by Mr Cross were for a reason prohibited by the Act and this claim must fail.
One aspect of this claim remains to be explained, namely, the alleged failure to give Mr Cross a notice to return to work or an abandonment of work notice.
The 2009 Agreement was replaced by the Sydney Ferries Maritime (AMOU and MUA) Enterprise Agreement 2012 (“2012 Agreement”). The 2012 Agreement governed the employment of a number of classes of employees by HCF, including General Purpose Hand/Cashiers. Clause 26B of the 2012 Agreement provided:
26B.1In the event an employee abandons his/her employment by being absent from work for 21 days the employer shall direct the employee to return to work within 7 days. In the event the employee fails to notify the employer or return to work as directed the employee shall be terminated with no further notice or payments except for accrued entitlements to the date of abandonment of employment.
Mr Cross argued that this clause applied to him and yet he was never given any notice under it. The foundation of the argument is wrong because Mr Cross was not absent from work for 21 days. He had no work in the relevant period and so could not have been absent. For that reason, the clause did not apply in that there was no obligation upon HCF to give Mr Cross any notice under it.
Fourth claim: failure to provide the roster line; failure to allocate shifts; failure to issue an “Abandonment of Employment” notice, and coercion not to exercise workplace rights
In this claim Mr Cross alleges the following:
a)Mr Rieck and HCF failed to provide him with a roster line;
b)HCF failed to provide him with casual shifts and allocated shifts to other employees;
c)HCF failed to issue him with a return to work order “abandonment of employment”; and
d)HCF attempted to coerce him to not exercise his workplace rights.
The first three of these complaints have already been dealt with and nothing further need be said about them.
The remaining claim, that HCF attempted to coerce Mr Cross not to exercise his workplace rights is based upon the assertion that, during negotiations in 2013 between HCF and Mr Cross (through a representative of the MUA), HCF offered to reinstate Mr Cross at the bottom of Pool B on the casual seniority list. Mr Cross alleges that this offer amounted to coercion because it left him with no choice other than to accept a position lower than that to which he was entitled. There is no basis whatsoever for this claim.
First, there is no evidence before the Court that HCF ever made the offer which forms the basis of the claim.
Secondly, even if the offer were made, it did not amount to coercion. Mr Cross relies upon the provisions of ss.343 and 355 of the Act. Section 343 provides:
Coercion
(1) A person must not organise or take, or threaten to organise or take, any action against another person with intent to coerce the other person, or a third person, to:
(a) exercise or not exercise, or propose to exercise or not exercise, a workplace right; or
(b) exercise, or propose to exercise, a workplace right in a particular way.
(2) Subsection (1) does not apply to protected industrial action.
(Emphasis in original)
Section 355 provides:
Coercion-allocation of duties etc. to particular person
A person must not organise or take, or threaten to organise or take, any action against another person with intent to coerce the other person, or a third person, to:
(a)employ, or not employ, a particular person; or
(b)engage, or not engage, a particular independent contractor; or
(c)allocate, or not allocate, particular duties or responsibilities to a particular employee or independent contractor; or
(d)designate a particular employee or independent contractor as having, or not having, particular duties or responsibilities.
(Emphasis in original)
Coercion has been held to require the satisfaction of two elements: negation of choice; and, the use of unlawful, or illegitimate or unconscionable means: Esso Australia Pty Ltd v Australian Workers’ Union (2016) 258 IR 396; [2016] FCAFC 72 at [174]. There was neither here. At most, HCF made an offer to resolve a dispute. This claim is rejected.
Fifth claim: misrepresentation by HCF
In his Amended Application, Mr Cross argues that, by stating that he did not contact HCF for shifts, HCF has made misleading claims regarding his workplace rights. Further, Mr Cross says that, by stating that he was removed from the casual list because he did not perform shifts, HCF made further false claims about his workplace rights.
Section 345 of the Act provides:
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.
(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)
It is difficult to understand why this claim is made. The two representations alleged to have been made concerned facts that were not in issue: first, Mr Cross did not contact HCF for shifts. It was his case that he did not have too, that shifts were offered by “the book” who would call when there were shifts available; and secondly, Mr Cross, on his own claim, did not perform work for HCF. Indeed, at the time he was removed from the casual list, he had not performed any work as a General Purpose Hand on ferries in Sydney since February 2012.
In his written submissions, Mr Cross alleges that the following false and misleading misrepresentations were made by Mr Moy on 29 April 2013 (without correction):
(i) ‘Your employment status with HCF, from the 28 July 2012, continued to be casual. I am further advised that attempts to offer you shifts etc were difficult, generally you were not available when requested and accordingly were removed from the list.’
(ii) HCF maintain this stance at the Fair Work Conference 14 November 2013 and Mr Moy agrees that HCF will provide Mr Cross with phone records to provide his representations that HCF had phoned and offered Mr Cross shifts. The phone record were never produced as agreed despite Mr Cross holding his end of the bargain – giving HCF permission to access his employment file. HCF, via Mr Moy, withdrew consent to a further conference.
(Emphasis in original)
This argument constitutes an attempt to go beyond the case which the respondents were asked, and were prepared, to meet. Leave is not granted to raise this argument.
In any event, the argument is hopeless. First, all that Mr Moy said to Mr Cross was what he was told by somebody else. There is no basis to suggest that Mr Moy was not told those things.
The second alleged misrepresentation was about the future production of telephone records for the purposes of proceedings in the Fair Work Commission and not about any workplace rights.
This ground is rejected.
Conclusion
Mr Cross’ claims have all been rejected. The application must be dismissed. In light of my reasons for dismissing the application, there is a real question as to whether there should be an order for costs. I will hear the parties on that question.
I certify that the preceding one hundred and twenty (120) paragraphs are a true copy of the reasons for judgment of Judge Smith
Date: 24 March 2017
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