Director of The Fair Work Building Industry Inspectorate v Baulderstone Pty Ltd & Ors
[2014] FCCA 721
•10 April 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DIRECTOR OF THE FAIR WORK BUILDING INDUSTRY INSPECTORATE v BAULDERSTONE PTY LTD & ORS | [2014] FCCA 721 |
| Catchwords: INDUSTRIAL LAW – Subsection 342(3)(a) of the Act – meaning of “action that is authorised by or under this Act” – whether an enterprise bargaining agreement (EBA) that covers an employee, or whether s.50 of the Act, authorises the employer to repudiate an employment contract that contains terms inconsistent with an EBA. INDUSTRIAL LAW – Adverse action taken in contravention of s.346 of the Act – reason for which adverse action taken – whether adverse action taken for a reason that did not include as a substantial factor the employee’s not being or having ceased to be a member of an industrial association. INDUSTRIAL LAW – False or misleading representations about workplace rights of another in contravention of s.345 of the Act – elements of contravention of s.345 – meaning of “representation” – meaning of “reckless” – whether such representations made – whether such representations, if made, were false or misleading – whether the representations, if made, and if false or misleading, were made knowingly or recklessly to be false or misleading. INDUSTRIAL LAW – Section 550 of the Act – circumstances in which a person is involved in another’s contravention of s.346 of the Act – whether employees of the employer who took adverse action against another employee involved in employer’s contravention – whether the employer took adverse action against the employee for a reason or for reasons that included as a reason that the employee was not or had ceased to be a member of an industrial association – whether employer’s employees knew that employer took the adverse action for the reasons or for reasons that included as a reason that the employee was not or had ceased to be a member of an industrial association. INDUSTRIAL LAW – Whether employee against whom adverse action taken suffered any financial loss as a consequence of employer’s contravention of s.346 of the Act. |
| Legislation: Anti-Discrimination Act 1977 (NSW), s.53 Australian Consumer Law, s.29 Commonwealth Conciliation and Arbitration Act 1909 (Cth) Commonwealth Conciliation and Arbitration (No.2) Act 1914 (Cth) Commonwealth Conciliation and Arbitration Act 1947 (Cth) Competition and Consumer Act 2010 (Cth), s.75B Conciliation and Arbitration Act 1904 (Cth), ss.5, 9 Copyright Act 1968 (Cth) Evidence Act 1995 (Cth), s.140 Fair Work Act 2009 (Cth), ss.50, 341, 342, 345, 346, 347, 360, 361, 470, 550, 793 Industrial Relations Act 1988 (Cth) |
| ACE Insurance Ltd v Trifunovski (No.2) (2012) 215 IR 206 Visscher v Giudice & Ors (2009) 239 CLR 361 |
| Applicant: | DIRECTOR OF THE FAIR WORK BUILDING INDUSTRY INSPECTORATE |
| First Respondent: | BAULDERSTONE PTY LTD (ACN 002 625 130) |
| Second Respondent: | GREGORY LEMIN |
| Third Respondent: | RAZZ RAZLOG |
| Fourth Respondent: | NICOLE KIDMAN |
| File Number: | SYG 1434 of 2012 |
| Judgment of: | Judge Manousaridis |
| Hearing dates: | 13, 14, 15 and 26 November 2013 |
| Date of Last Submission: | 6 December 2013 |
| Delivered at: | Sydney |
| Delivered on: | 10 April 2014 |
REPRESENTATION
| Counsel for the Applicant: | Mr White |
| Solicitors for the Applicant: | Corrs Chambers Westgarth Lawyers |
| Counsel for the Respondent: | Mr Hodgkinson |
| Solicitors for the Respondent: | K&L Gates |
ORDERS
The parties have liberty to approach the associate to Judge Manousaridis to fix a date for the hearing of submissions on penalties and costs.
Table of Contents
Introduction
Arrangement of reasons
Section 346 of the Act
Section 345 of the Act
Evidence and findings of facts
Summary of principal facts and findings
Attribution of conduct and mental states
The adverse action claim against Baulderstone
The adverse action claim against the employee respondents
The misrepresentation claim
Mr Teariki’s loss
Conclusions and disposition
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1434 of 2012
| DIRECTOR OF THE FAIR WORK BUILDING INDUSTRY INSPECTORATE |
Applicant
And
| BAULDERSTONE PTY LTD (ACN 002 625 130) |
First Respondent
GREGORY LEMIN
Second Respondent
RAZZ RAZLOG
Third Respondent
NICOLE KIDMAN
Fourth Respondent
REASONS FOR JUDGMENT
Introduction
The Director of the Fair Work Building Industry Inspectorate (Director) claims the first respondent (Baulderstone) and three of its employees (employee respondents) contravened s.346 of the Fair Work Act2009 (Cth) (Act) and s.345 of the Act.
Section 346 prohibits a person from taking “adverse action” against another person “because”, among other things, the other person is not a member of an industrial association or has engaged in industrial action by ceasing to be a member of an industrial association. Section 345 of the Act prohibits a person from knowingly or recklessly making a false or misleading representation “about”, among other things, the “workplace rights” of another person. The Director claims that both contraventions occurred at a meeting held on 25 March 2010 between the employee respondents and another employee of Baulderstone, Mr Teariki.
As to the claimed contravention of s.346 of the Act (adverse action claim), the Director alleges that, at the meeting of 25 March 2010, the employee respondents required Mr Teariki to sign two documents. The first provided that on 31 March 2010 Mr Teariki would resign from the position of “Safety Officer”. That was the position Mr Teariki held with Baulderstone under an employment contract he entered into in January 2009 (salary contract) when he worked at the Edmund Barton Building Project (EBB Project) and under which he was paid a salary. The second document provided that on 1 April 2010 Mr Teariki would be engaged to work at “ANU Student Accommodation 3” (SA3 Project) as a “CW5”. “CW5” is a reference to a class of employees specified in an enterprise bargaining agreement to which Baulderstone was a party (EBA). A worker who was classified as a “CW5” was required to be paid in wages at the rates specified in the EBA.
The Director further alleges that:
a)by requiring Mr Teariki to sign the documents, Baulderstone, through the employee respondents, took “adverse action” against Mr Teariki within the meaning of s.342(1) of the Act;
b)Baulderstone took the adverse action because Mr Teariki was not a member of the Construction Forestry Mining and Energy Union (CFMEU) in February 2010, and because he engaged in industrial activity within the meaning of s.347(a) of the Act by ceasing to be a member of the CFMEU in February 2010;
c)by alleging the matters referred to in (a) and (b), the Director alleges that Baulderstone took the adverse action for a particular purpose, and the taking of adverse action for that purpose constitutes a contravention of Part 3.1 of the Act;
d)because of the matters alleged in (c), s.361 of the Act operates to raise the presumption that Baulderstone took the adverse action referred to in (a) because Mr Teariki was not a member of the CFMEU, or because he engaged in industrial activity by ceasing to be a member of the CFMEU in February 2010, unless Baulderstone proves otherwise; and
e)Baulderstone is unable to prove otherwise.
The Director also claims that each of the employee respondents was knowingly involved in Baulderstone’s contravention of s.346 of the Act and, therefore, because of s.550 of the Act, they are each taken to have contravened s.346 of the Act.
As for the claimed contravention of s.345 of the Act (misrepresentation claim), the Director alleges that:
a)at the meeting of 25 March 2010 one or more of the employee respondents and, through them, Baulderstone, represented to Mr Teariki that:
i)he had to cease employment under the salary contract;
ii)he would receive more money when re-engaged solely as a wage earner under the EBA; and
iii)Mr Teariki had to resign from his employment under the contract he had with Baulderstone;
b)each of the representations (s.345 representations) was about a “workplace right” that Mr Teariki had;
c)each of the s.345 representations was false and misleading; and
d)the relevant respondent or respondents made the s.345 representations recklessly or knowing them to be false or misleading.
Baulderstone and the employee respondents accept Mr Teariki signed the two documents at the meeting of 25 March 2010, but they deny Baulderstone or the employee respondents contravened s.346 or s.345 of the Act. As to the adverse action claim, the respondents say:
a)To the extent it is found Baulderstone required Mr Teariki to sign the documents, its conduct did not constitute adverse action within the meaning of s.342(1) of the Act because, by signing the documents, Mr Teariki was neither dismissed nor injured in his employment; and his position was not altered to his prejudice. That is so because Mr Teariki continued his employment with Baulderstone, and he was not made worse off by being covered by the EBA rather than by the salary contract.
b)If, contrary to (a), Baulderstone’s conduct did constitute adverse action, its conduct was authorised by the Act and hence, because of s.342(3)(a) of the Act, the conduct did not constitute adverse action within the meaning of s.342(1). That is so because Baulderstone’s purpose in requiring Mr Teariki to sign the documents was to bring Mr Teariki within the terms of the EBA, and Baulderstone would have been in breach of the Act had it not brought Mr Teariki within the terms of the EBA.
c)Whether or not Mr Teariki’s signing the documents involved Baulderstone taking adverse action against Mr Teariki, Baulderstone did not desire or require Mr Teariki to sign the documents because he resigned from or was no longer a member of the CFMEU. Baulderstone required Mr Teariki to sign the documents because it had formed the view that, in January 2010, Mr Teariki had ceased working on the EBB Project and had commenced work on the SA3 Project as a CW5 and therefore had to be employed according to the terms of the EBA, not according to the terms of the salary contract.[1]
[1] Defence, [15]
As to the misrepresentation claim, the respondents say the s.345 representations were not made; if they were made, they were not about any “workplace rights” and, if they were, they were not false, or, if false, they were not made recklessly or with knowledge they were false.
Arrangement of reasons
Before I consider the Director’s claims, considerable ground has to be cleared.
a)First, commencing at paragraph 14 of these reasons, I identify and discuss the elements of s.346 and s.345 of the Act.
b)Second, commencing at paragraph 59 of these reasons, I set out my findings of fact, and the reasoning supporting those findings. I there identify the principal events or claimed events in chronological order and, in relation to each event, I consider the relevant evidence and record my findings and reasons for those findings.
c)Third, commencing at paragraph 181 of these reasons, I summarise the primary facts which are either not disputed or which I have found to exist or not to exist. I do this to assist in the comprehension of my consideration of the claims based on the findings I make.
d)Finally, commencing at paragraph 202 of these reasons, I identify the person or persons, if any, whose conduct and states of mind are to be attributed to Baulderstone.
With these tasks out of the way, and relying on the primary facts, I then consider the principal issues that arise on the Director’s claims. As to the adverse action claim, these are as follows:
a)Whether it was through the exercise of his free choice that Mr Teariki signed the documents which led to his relinquishing the salary contract or whether Baulderstone instead required Mr Teariki to sign the documents.
b)Assuming Baulderstone required Mr Teariki to sign the documents, whether Baulderstone’s conduct constituted “adverse action” within the meaning of item 1 of the table that appears in s.342(1) of the Act.
c)Assuming (b) is answered in the affirmative, whether Baulderstone’s conduct was “authorised by or under . . . this Act” within the meaning of s 342(3)(a) of the Act.
d)Assuming (c) is answered in the negative, whether Bauldertsone engaged in the conduct in relation to Mr Teariki for the reason it claims it did, namely, because it had formed the view that Mr Teariki had to be employed according to the terms of the EBA, not according to the terms of the salary contract.
e)Assuming Baulderstone contravened s.346 of the Act, whether one or more of the employee respondents were involved in Baulderstone’s contravention.
I then consider the following issues that arise on the misrepresentation claim:
a)Whether the s.345 representations were made.
b)Assuming the s.345 representations were made, whether they were “about” the “workplace rights” of Mr Teariki.
c)Assuming (b) is answered in the affirmative, whether one or more of the s.345 representations were false.
d)Assuming (c) is answered in the affirmative, whether the employee respondents made any of the representations recklessly, or knowing them to be false or misleading.
I then consider whether Mr Teariki suffered any loss, assuming Baulderstone or one or more of the employee respondents contravened s.345 or s.346 of the Act.
Finally, at paragraph 283 of these reasons, I set out my conclusions on the Director’s claims.
Section 346 of the Act
Section 346 of the Act provides:
A person must not take adverse action against another person because the other person:
(a)is or is not, or was or was not, an officer or member of an industrial association; or
(b)engages, or has at any time engaged or proposed to engage, in industrial activity within the meaning of paragraph 347(a) or (b); or
(c)does not engage, or has at any time not engaged or proposed to not engage, in industrial activity within the meaning of paragraphs 347(c) to (g).
Section 347(a) provides that a person “engages in industrial activity” if the person “becomes or does not become, or remains or ceases to be, an officer or member of an industrial association”.
The expression “adverse action against another person” is defined in s.342(1) of the Act. That subsection contains a table that “sets out circumstances in which a person takes adverse action against another person”. The table identifies in one column the persons by whom and against whom adverse action may be taken, and, in another column, the conduct that, if taken by and against such persons, constitutes adverse action. For the purposes of these proceedings, the relevant person who must take the adverse action is “an employer”, and the person against whom the employer must take the adverse action is “an employee”. And the employer takes “adverse action” 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;
(d)discriminates between the employee and other employees of the employer.
The notion of “adverse action” specified in s.342(1) of the Act is subject to s.342(3) which provides:
Adverse action does not include action that is authorised by or under:
(a) this Act or any other law of the Commonwealth; or
(b)a law of a State or Territory prescribed by the regulations.
Section 346 of the Act must be read with s.361(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.
And subsection 361(1) must, in turn, be read with s.360 of the Act:
For the purposes of this Part, a person takes action for a particular reason if the reasons for the action include that reason.
Section 346 does not use the words “a particular reason” which appear in s.361; it uses the word “because”. The word “because”, however, is interchangeable with the words “for a particular reason”. Tracey J so held in Barclay v Board of Bendigo Regional Institute of Technical and Further Education.[2] His Honour referred to protective provisions, such as that contained in s.346 of the Act, having first appeared in the Conciliation and Arbitration Act 1904 (Cth) (1904 Act) and then incorporated in the Industrial Relations Act 1988 (Cth) and, later, into the Workplace Relations Act 1996 (Cth) (1996 Act). The language in these provisions differs from that in s.346 and s.342. For example, s.5(1) of the 1904 Act prohibited an employer from dismissing an employee “by reason of” the circumstance that the employee is an officer, delegate, or member of an organisation. Tracey J observed that “in giving reasons for their decisions, courts dealing with cases brought under s 5 of the [1904 Act], often used the phrase “by reason of” and the word “because” interchangeably”.[3] In any event, all Justices of the High Court in Board of Bendigo Regional Institute of Technical and Further Education v Barclay,[4] took or assumed that “because” in s.346 denotes the reason or reasons action is or was taken.[5]
[2] (2010) 193 IR 251.
[3] (2010) 193 IR 251 at 258 ([26])
[4] (2012) 86 ALJR 1044
[5] (2012) 86 ALJR 1044 at 1052 ([42]), French CJ and Crennan J (“Determining why a defendant employer took adverse action against an employee involves consideration of the decision-maker’s “particular reason” for taking adverse action (s 361(1) . . . .”); at 1062 ([101]), Gummow and Hayne JJ (“The use in s 346(b) of the term “because” in the expression “because the other person engages . . . in industrial activity”, invites attention to the reasons why the decision-maker so acted.”).
From this bare presentation of the relevant statutory provisions, and the equivalent meanings of the expression “for a particular reason” in s.361 of the Act and the word “because” in s.346, it will be seen that an employer will contravene s.346 of the Act in the following circumstances:
a)The employer dismisses an employee, or injures an employee in his or her employment, or alters the position of an employee to the employee’s prejudice, or discriminates between an employee and another employee.
b)The employer does not claim the conduct referred to in (a) was authorised by the Act or any other law of the Commonwealth or a law of a State or Territory prescribed by the regulations or, if the employer does so claim, the employer fails to prove that the conduct was so authorised.
c)There is an application in relation to a contravention of s.346 of the Act and, in that application, it is alleged that the employer took the action referred to in (a) for a particular reason, or for reasons which included the particular reason, and that taking that action for that reason would constitute a contravention of Part 3.1 of the Act.
d)The employer does not prove that it took the action referred to in (a) “otherwise” than for the particular reason alleged.
It would be useful to consider each of these elements.
Conduct that is “adverse action”
As I say earlier in these reasons, “adverse action”, when taken by an employer against an employee, is defined to consist of four types of conduct. The first – dismissal of an employee – was first included as prohibited conduct in s.9(1) of the 1904 Act when the 1904 Act was first enacted. The second – injury to the employee in his or her employment – was added by the Commonwealth Conciliation and Arbitration Act 1909 (Cth);[6] the third – prejudicial alteration of the employee’s position – was added by the Commonwealth Conciliation and Arbitration (No 2) Act 1914 (Cth);[7] and the fourth type of conduct – discrimination – was added by Act No 31 of 1920.[8]
[6] Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 86 ALJR 1044 at 1057 ([73] (Gummow and Hayne JJ)
[7] Elliott v Kodak Australasia Pty Ltd (ACN 004 057 621) [2001] FCA 807 at [28] (Marshall J)
[8] Elliott v Kodak Australasia Pty Ltd (ACN 004 057 621) [2001] FCA 807 at [29] (Marshall J)
The substance of s.9(1) of the 1904 Act was re-enacted into s.5(1) of the 1904 Act.[9] That section, in turn, was re-enacted in the 1996 Act. The 1996 Act, however, like the Act, identified in separate sections the conduct the employer was prohibited from taking, and the reason for which the employer was prohibited from taking such conduct. The conduct – which is the same as that described in s.342(1) – was described in s.298K(1), and the prohibited purpose was described in s.298L(1)(b) of the 1996 Act, which is in substance the same as s.361(1) of the Act.
[9] By the Commonwealth Conciliation and Arbitration Act 1947 (Cth) made in accordance with Sch.2 (Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 86 ALJR 1044 at 1059 ([82]), (Gummow and Hayne JJ))
In Patrick Stevedores Operations No 2 Pty Limited v Maritime Union of Australia (No 3), the High Court concisely noted the scope of paragraphs (a), (b), and (c) of s.298K(1) of the 1996 Act as follows: [10]
Paragraph (a) covers termination of employment; par (b) covers injury of any compensable kind; par (c) is a broad additional category which covers not only legal injury but any adverse affection of, or deterioration in, the advantages enjoyed by the employee before the conduct in question.
[10] (1998) 195 CLR 1 at page 18 ([4])
Although in this passage the High Court used the expression “termination of employment” to describe the conduct specified in s.298K(1)(a), that was not the language used in s.298K(1)(a) of the 1996 Act, and is not the language used in s.342(1) of the Act. Paragraph (a) of s.298K(1) used the expression “dismiss an employee” and s.342(1) uses the expression “dismisses the employee”. The language of “termination of employment” in the passage from Patrick Stevedores may incorrectly imply not only an act by the employer that amounts to a repudiation of the employment contract, but also the acceptance of that repudiation by the employee.[11]
[11] See Visscher v Giudice & Ors (2009) 239 CLR 361 where, by majority (Heydon, Crennan, Kiefel, and Bell JJ), the High Court held that the Full Federal Court erred in holding that the repudiation by the employer in that case by itself was effective to terminate the employment contract. The termination of the employment contract in that circumstance required the employee’s acceptance of the repudiation.
The expression “dismissal”, as it appeared in s.245 of the Industrial Relations Act1991 (NSW), was considered by the Full Court of the Industrial Court in Smith v Director-General School Education.[12] The Court said:[13]
The Industrial Relations Act does not define “dismissal” . . . . It is to the ordinary meaning of “dismiss” that assistance may be obtained. . . . [W]e find no difficulty in accepting the ordinary meaning of “dismissal” suggested by Brereton J in Ex parte Wurth as being “the termination of services by the employer without the employee’s consent”; we would add that where an employee does not freely consent to the termination, understood in a broad sense, then the circumstances may still amount to a dismissal by the employer as a constructive dismissal . . . .
[12] (1993) 31 NSWLR 349
[13] (1993) 31 NSWLR 349 at page 365E-366B
The expression “constructive dismissal” is not recognised by the common law and where in Australian cases there has been a reference to this expression, “the reference has essentially been to conduct on the part of the employer which would constitute repudiation of the contract”.[14]
[14] Cook v CFP Management Pty Ltd (2006) 152 IR 358 at 362 ([17]) (QCA)
In my opinion, therefore, the expression “dismisses the employee” in the table to s.342(1) of the Act means an employer’s repudiation of the employment contract, whether or not the employee accepts the repudiation.
The expression “injure[s] the employee in his or her employment”, as used in s.298K(1) of the 1996 Act, was considered by Spender J in Commonwealth Bank of Australia v Finance Sector Union of Australia. His Honour referred[15] with approval to the following passage from the reasons for judgment of Smithers J in Childs v Metropolitan Transport Trust:[16]
I cannot help thinking that “injury” refers to deprivation of one of the more immediate practical incidents of his employment, such as loss of pay or reduction in rank.
[15] (2007) 157 FCR 329
[16] (1981) 29 AILR 24
The third type of conduct - altering the position of the employee to the employee’s prejudice - has been considered in a number of cases. In Maritime Union of Australia & Ors v Geraldton Port Authority & Ors[17] R D Nicholson J referred to the following passage from the reasons of judgment of Smithers J in Childs v Metropolitan Transport Trust:[18]
It is possible to read the word “position” in a narrow way merely as referable to the immediate incidents of day-to-day employment. But I do not see any reason why it should be so circumscribed in meaning. It seems to me that the word “position” should be read rather to refer to a man’s employment position in all its attributes and that to find what those attributes are in any particular case, you look at the terms of employment, the terms of the agreement in relation to the particular employment. Fear of alteration of any of those terms or of the entitlements thereunder would be as potent a factor inhibiting an employee from operating the Act as fear of dismissal, or loss of pay or something in the nature of an immediate injury. I think therefore that cancellation or repudiation of a term of employment which has been agreed upon, cancellation or repudiation by an employer which the employee is in no position, legal or otherwise, to resist or oppose, although he may get some legal rights in relation to it, by withdrawal of a promise of secure employment in a position for an agreed term is an alteration in the employee’s position within the meaning of s 5 [of the 1904 Act], and I think it takes place on the day of cancellation or repudiation of the promise that was made. From then on his position is substantially altered. The term is gone.
[17] (1999) 165 ALR 67 at 100-101 ([229])
[18] (1981) IAS Current Review 946; [1981] FCA 200
Also relevant is the following passage from the reasons for judgment of the Full Federal Court in Community and Public Sector Union v Telstra Corporation Ltd:[19]
In Patrick Stevedores at 18 the majority of the High Court held that the subsection covers “not only legal injury but any adverse affection of, or deterioration in, the advantages enjoyed by the employee before the conduct in question”. The majority also observed (at 20) that the reorganisation of companies within the Patrick Group resulted in the security of the employer companies’ businesses being “extremely tenuous” with the “security of the employees’ employment [being] consequentially altered to their prejudice”. The reorganisation did not directly affect or alter any legal rights or obligations of the employees but it left their future employment less secure. Although this issue was not in dispute, the majority appears to have had no difficulty in accepting reduced security of future employment as falling within s 298K(1)(c) because it brought about an adverse affection of, or a deterioration in, the advantages enjoyed by the employees before the reorganisation.
[19] (2001) 107 FCR 93 at 100 ([17]) (Black CJ, Ryan and Merkel JJ). This passage was quoted with approval by the Full Federal Court in Qantas Airways Ltd v Australian Licensed Aircraft Engineers Association [2012] FCAFC 63 at [30] (Gray, North and Besanko JJ).
There is one further matter I should note. Much, perhaps most, of the conduct which s.342(1) of the Act identifies as “adverse action” will be conduct that induces an employee to agree to or to acquiesce in the variation of his or her contract of employment. That means that where the claimed adverse action is conduct that induces a variation in the contract of employment, it will have to be shown that the assent of the employee to such variation was not a genuine exercise of a free choice. That will easily be shown where the employee assents to the variation but makes it known that the assent is given under protest. It may also be shown when the employer, in proposing a variation to the employee’s contract of employment, makes it known to the employee that the employee has no option, other than ceasing his or her employment, but to agree to the employer’s proposal. And it will be readily inferred that the employee’s assent is not the exercise of a free choice if the variation is to the obvious disadvantage of the employee.
“Action . . . authorised by or under the Act”
Even if conduct falls within the meaning of “adverse action” as defined in s.342(1), s.342(3)(a) provides that such action is not adverse action if the action “is authorised by or under” the Act. What does that mean?
The application of s.342(3)(a) of the Act arose obliquely in Construction Forestry Miningand Energy Union v Mammoet Australia Pty Ltd.[20] In that case, it was claimed that the employer took adverse action by withholding lodgings to its employees. One defence raised by the employer was that the withholding of lodgings occurred during the period of protected industrial action and that the employer, so it submitted, was prohibited by s.470(1) of the Act from making lodgings available to its employees. Subsection 470(1) prohibits an employer from making “a payment to an employee” who engages in protected industrial action in relation to the period of industrial action. The principal issue was whether the providing of lodgings constituted “a payment to an employee”. Gilmour J, sitting in the Federal Court,[21] and upholding the decision of this Court,[22] held that the withholding of lodgings was a withholding of payment and, thus, was prohibited by s.470 of the Act. The High Court disagreed, holding that “payment to an employee” was restricted to payments of money, and, therefore, did not extend to transfers of other economic benefits.
[20] (2013) 87 ALJR 1009
[21] Construction, Forestry, Mining & Energy Union v Mammoet Australia Pty Ltd [2012] FCA 850
[22] [2011] FMCA 802 (Lucev FM, as his Honour then was)
Implicit in the employer’s defence in Mammoet was the premise that the prohibition ordained by s.470(1) of the withholding to an employee of a benefit constituted the authorisation by or under the Act of conduct which otherwise would be adverse action. That premise remained implicit, which meant that neither the High Court nor the courts below discussed the meaning of “authorised by or under . . . this Act”. Assistance in the construction of that phrase, however, may be sought elsewhere.
A helpful starting point is Shellharbour Golf Club Ltd v Wheeler where Studdert J considered the meaning of the word “authorise” as it appeared in s.53 of the Anti-discrimination Act 1977 (NSW).[23] His Honour first referred to the following passage from the judgment of Jordan CJ in Ex parte Johnson; Re MacMillan:[24]
The word ‘authorize’, according to its natural meaning, signifies the conferring upon a person of a right to do something which, apart from the authorization, he does not possess.
[23] (1999) 46 NSWLR 253
[24] (1946) 47 SR (NSW) 16 at 18
After noting that this definition could not be taken as a rigid definition, and that its meaning may differ depending on the statutory provision in which it is found, Studdert J referred to the discussion by the High Court in University of New South Wales v Moorhouse[25] of the meaning of “authorise” as it appears in the Copyright Act 1968 (Cth). His Honour then concluded:[26]
The decision in University of New South Wales v Moorhouse has been much followed in copyright cases and the broad concept of “authorise” reflected in the above passage has been frequently applied for the purposes of statutory construction under the copyright legislation. For present purposes, bearing in mind the nature of the Anti-Discrimination Act, I consider that the word authorise should be given an equally broad meaning to that given to the word in the copyright cases. Accordingly, it seems to me that for the purposes of s 53 the word “authorise” embraces “sanction, approve, countenance and permit”. Permission may be inferred from inactivity and indifference where the person sought to be made liable is aware that some particular behaviour may occur.
[25] (1975) 133 CLR 1
[26] (1999) 46 NSWLR 253 at 263 ([58])
In my opinion, the core meaning of “authorise”, at least when used in the context of asserted legal rights, is that identified by Jordan CJ in Re MacMillan. In that context, the word assumes the existence of a rule or set of rules which, on the one hand, prohibits a person from engaging in or not engaging in conduct and, on the other hand, permits the person to engage in or to refrain from engaging in that conduct. The word “authorise” simply refers to the rule which permits the conduct which is otherwise not permitted. Where such rule is contained in a provision of an Act, it may be said that the provision authorises the relevant conduct. Accordingly, when determining whether particular action that is claimed to be adverse action is “action that is authorised by or under this Act” within the meaning of s.342(3)(a) of the Act, it is necessary to identify a provision of the Act which permits the action.
That does not necessarily mean, however, that the provision must by its terms permit the relevant action. That it need not do so is illustrated by the facts in Mammoet. There, the provision on which the employer relied as an answer to the adverse action claim did not by its terms permit anything. It was a prohibition. It prohibited the payment of money. Thus, where the adverse action is claimed to consist in an employer omitting to take action, the non-performance of the action will be authorised by or under the Act if there is a provision of the Act which prohibits the employer from taking the action.
Reason for taking action
A contravention of s.346 of the Act consists of a person taking action for a particular reason, or for reasons which include the particular reason. Examining whether a particular reason was a reason for an action “calls for an inquiry into the mental processes of the person responsible for that action”.[27]
[27] Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 86 ALJR 1044 at 1068 ([140]) (Heydon J)
Not every reason for which a person acts qualifies as a particular reason. The characteristic a reason must have before it may be so characterised has been described in different terms. One is that it had to be “a ‘substantial and operative factor’ as to constitute a ‘reason’, potentially amongst many reasons”.[28] Another formulation is the reason must be an “operative or immediate reason for action”.[29] There is no difference in substance between these formulations, however, and it is difficult to imagine that a case will have a different outcome depending on which formulation is applied.
[28] Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 86 ALJR 1044 at 1066 ([127]) (Gummow and Hayne JJ)
[29] Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 86 ALJR 1044 at 1068 ([140]) (Heydon J)
The evidence a person would normally be required to adduce to be in a position to prove that the action was not taken for the particular reason has also been described in different ways. One is provided by Gibbs J (as his Honour then was) in General Motors Holden Pty Ltd v Bowling:[30]
The onus of proving that the fact that the employee held the position [of shop steward] was not a substantial and operative factor in the dismissal is to be discharged according to the balance of probabilities and is not to be made heavier by any presumption that if an employee who is dismissed for disruptive activities happens to be a shop steward the latter circumstance must have had something to do with his dismissal. If in the present case evidence had been given by the directors responsible that the employee was dismissed because he was guilty of misconduct or because his work was unsatisfactory, and that in dismissing him they were not influenced by the fact that he was a shop steward or indeed that he was dismissed in spite of that fact, and that evidence had been accepted, the onus would have been discharged.
[30] (1976) 12 ALR 605 at 612. The case arose under s.5(1) of the 1904 Act.
In Barclay v Board of Bendigo Regional Institute of Technical and Further Education, Tracey J said:[31]
If an employer, who is alleged to have contravened one of the provisions of Pt 3-1 in which the word “because” is to be found, adduces evidence which persuades the court that it acted solely for a reason other than one or more of the impermissible reasons identified in a particular protective provision, it will have made good its defence. Because of the reverse onus provision the employer will normally need to call evidence from the decision-maker to explain what actuated him or her to act to the employee’s detriment. As Buchanan J said in Seymour (at 14), the employer will usually have to provide “sworn evidence denying any [proscribed] reason . . . and, in most cases, an explanation of the real reason for [the adverse action] consistent with the absence of [proscribed reasons] is, in a practical sense, also necessary”.
[31] (2010) 193 IR 251 at 261 ([35])
And in the High Court, French CJ and Crennan J said:[32]
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. . . . [D]irect 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.
[32] (2012) 86 ALJR 1044 at 1053 ([45]) (footnotes omitted)
An employer adducing evidence of his or her reasons for taking the impugned action does not necessarily mean the Court will accept the evidence. In Board of Bendigo Regional Institute of Technical and Further Education v Barclay, Heydon J said:[33]
Of course, “mere declarations” by a witness as to his or her “mental state” may not be sufficient to discharge the [employer’s] burden of proof under s 361. External circumstances could put into question the reliability or credibility of those declarations.
[33] (2012) 86 ALJR 1044 at 1068 ([141]) (footnotes omitted)
The same point was made by French CJ and Crennan J:[34]
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 or because other objective facts are proven which contradict the decision-maker’s evidence.
[34] (2012) 86 ALJR 1044 at 1053 ([45]) (footnote omitted)
I next turn to discuss the elements of s.345 of the Act.
Section 345 of the Act
Section 345 of the Act provides:
(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.
The expression “workplace right” is defined in s.341(1) of the Act which provides:
(1) A person has a workplace right if the person:
(a)is entitled to the benefit of, or has a role or responsibility under, a workplace law, workplace instrument, or order made by an industrial body; or
(b)is able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument; or
(c)is able to make a complaint or inquiry:
(i) to a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrument; or
(ii) if the person is an employee – in relation to his or employment.
Thus, when read with the definition of “workplace right”, s.345 prohibits a person from making a representation about the matters specified in the definition of “workplace right” in s.341(1) of the Act as they apply to a particular person or classes of persons.
In the context of s.53 of the Trade Practices Act 1974 (Cth),[35] “representation” was defined to mean “a statement made by a representor to a representee and relating by way of affirmation, denial, description or otherwise to a matter of fact”.[36] This notion of “representation”, however, must be qualified in the context of its use in s.345 of the Act. Section 345 captures representations which have a particular subject matter, namely, “workplace rights”. Representations about a “workplace right” may at the very least include representations of law or representations of mixed fact and law.
[35] Now s.29 of the Australian Consumer Law (being Schedule 2 to the Competition and Consumer Act 2010 (Cth))
[36] Aqua-Marine Marketing Pty Ltd v Pacific Reef Fisheries (Australia) Pty Ltd (No 5) [2012] FCA 908 at [78] (Collier J)
A representation is false if the representation “is not in fact correct”.[37] A representation is misleading if it induces or is capable of inducing error.[38] This requires proof of a sufficient causal link between the representation and error on the part of the person or persons exposed to it.[39]
[37] Given v C.V. Holland (Holdings) Pty Ltd (1977) 29 FLR 212 at page 217 (Franki J)
[38] Australian Competition and Consumer Commission v TPG Internet Pty Ltd [2013] HCA 54 at [39]
[39] Australian Competition and Consumer Commission v TPG Internet Pty Ltd [2013] HCA 54 at [39]
To contravene s.345, it is not enough that a person made a representation which was false or misleading. The representation must be made knowingly or recklessly. The notion of “knowingly” is self-evident. It requires that the person who made the representation knew it was false when the person made it. The notion of “reckless” is not self-evident.
The meaning of “reckless” in the context of s.401 of the 1996 Act was considered by Raphael FM (as his Honour then was) in Fleming v Restaurant Services Group & Ors.[40] His Honour referred[41] to the following passage from the judgment of Donovan J in R v Bates & Anor:[42]
The ordinary meaning of the word “reckless” in the English language is “careless”, “heedless”, “inattentive to duty”. Literally, of course, it means “without reck”. “Reck” is simply an old English word, now, perhaps, obsolete, meaning “heed”, “concern”, or “care”.
[40] [2008] FMCA 455
[41] At [24]
[42] [1952] 2 All ER 842 at page 845. The issue in that case was whether the word “reckless” appearing in s.12 of the Prevention of Fraud (Investments) Act 1939 (UK) imported dishonesty.
His Honour also referred[43] to two passages, one from each of the speeches of Lord Hailsham and Lord Diplock, in R v Lawrence.[44] One of the issues in that case was the mens rea for the offence of causing death by driving a motor vehicle recklessly. The passage from the speech of Lord Diplock is as follows:
Recklessness on the part of the doer of an act does presuppose that there is something in the circumstances that would have drawn the attention of an ordinary prudent individual to the possibility that his act was capable of causing the kind of serious harmful consequences that the section which creates the offence was intended to prevent, and that the risk of those harmful consequences occurring was not so slight that an ordinary prudent individual would feel justified in treating them as negligible. It is only when this is so that the doer of the act is acting “recklessly” if before doing the act, he either fails to give any thought to the possibility of there being any such risk or, having recognised that there was such risk, he nevertheless goes on to do it.
[43] At [24]
[44] [1982] AC 510 at 526
Also relevant, in my opinion, is the meaning of fraud for the purposes of the action for deceit formulated by Lord Herschell in Derry v Peek where his Lordship said:[45]
[F]raud is proved when it is shewn that a false representation has been made (1) knowingly, or (2) without belief in its truth, or (3) recklessly, careless whether it be true or false. Although I have treated the second and third as distinct cases, I think the third is but an instance of the second, for one who makes a statement under such circumstances can have no real belief in the truth of what he states.
[45] (1889) 14 App Cas 337 at 374
In my opinion, although the elucidation of the meaning of “reckless” in the cases to which Raphael FM referred in Fleming is helpful, the statutory context in which “reckless” was considered in those cases is a little removed from the context in which “reckless” appears in s.345. In my opinion, it is reasonable to assume that s.345 would have been drafted with knowledge of the common law principles dealing with representations, and their classification into fraudulent (as defined in Derry v Peek), negligent and innocent representations. In my opinion, therefore, “reckless” as used in s.345 imports the second and third elements of “fraud” defined by Lord Herschell in the passage I have quoted above. Thus, for a person to recklessly make a false representation about the workplace rights of another, the person either must have made the representation without believing it to be true, or not caring whether it was true or false.
Evidence and findings of facts
I now turn to the evidence, and to making findings on the basis of that evidence, which I will set out in the form of a narrative.
Mr Teariki commences employment with Baulderstone
In or about May 2008 Baulderstone engaged Mr Teariki as a construction worker on the EBB Project.[46] His employment was covered by an enterprise bargaining agreement known as the “Baulderstone Hornibrook Building Australian Capital Territory Enterprise Agreement 2006-2008” (2006-2008 EBA). That agreement was certified under s.170LT of the 1996 Act.
[46] Teariki affidavit, [8]
The 2006-2008 EBA applied to Baulderstone, the CFMEU and “all Employees engaged on Company Building Projects in the Australian Capital Territory and surrounding regions” more particularly defined in other parts of the agreement. It classified employees covered by the agreement “in accordance with the classification structure shown in Appendix 1 or Appendix 2” to the agreement. Appendix 1 classified construction workers into eight levels.
On or about 24 September 2008 Baulderstone engaged Mr Teariki as a level 5 construction worker (CW5).[47] Appendix 2 to the 2006-2008 EBA notes the equivalent classifications of the “parent award”, being the Building and Construction Industry (ACT) Award 2002. The equivalent classification in that award for CW5 was “Mechanical Tradesperson Special Class”.
[47] Teariki affidavit, Exhibit TT1, page 17
According to Mr Teariki, his duties on the EBB Project included monitoring and overseeing occupational health and safety on the site.[48] Shortly after he commenced employment, Mr Teariki was elected as the EBB Project “Site Safety Committee Chairman”.[49] He also assisted in construction tasks. These included operating the alimak,[50] concreting work, driving the forklift, operating the boom lift, general clean up duties, traffic control, unloading trucks and general labouring work.[51] At least until after the structure on the EBB site was gutted, most of the duties in which Mr Teariki engaged related to safety.[52]
[48] Teariki affidavit, [9]
[49] Teariki affidavit, [10]
[50] An alimak is an external elevator that takes goods and persons up and down a structure in the course of construction.
[51] Teariki affidavit, [9]
[52] T39.15-20
January 2009 – Mr Teariki goes on salary
Before 28 January 2009 Mr Teariki asked the EBB Project site manager, Mr Pedro da Silva, and the Project Manager, Mr Moar, whether he could “go on salary”.[53] At around the same time he told Sophie Shappelle, who worked in Baulderstone’s human resources section, that he “would love to go on salary”. Ms Shappelle said “[w]e’ll look into it and get back to you”. These discussions resulted in Baulderstone sending a letter of offer to Mr Teariki dated 28 January 2009.[54]
[53] Teariki affidavit, [12]
[54] Exhibit 1, page 72
The letter of offer confirmed Baulderstone’s offer, and Mr Teariki’s acceptance, of the position of “Safety Officer with Baulderstone on our Edmund Barton Refurbishment Project based in Canberra”. The letter also set out the relevant terms of employment. These included a term that the contract may be terminated by either party giving one month’s notice.
In October or November 2009 the EBB Project was winding down and Mr da Silva and Mr Moar told Mr Teariki that Mr Teariki was going to work on the SA3 Project.[55] After a short period during which Mr Teariki worked on both projects, he moved to the SA3 Project in about February 2010.[56] Mr Teariki says that his job title at the SA3 Project was “Safety Officer”, and he undertook the same tasks as he had carried out when working on the EBB Project.[57]
[55] Teariki affidavit, [16]
[56] Teariki affidavit, [16] [17]
[57] Teariki affidavit, [17]
Mr Teariki was cross-examined about the extent to which Mr Teariki’s activities on the SA3 Project site related to safety as compared to the EBB Project. Mr Teariki accepted that as at January 2010 he was doing nowhere near as much safety-related work at the SA3 Project as Mr Teariki had been doing at the EBB project,[58] and when Mr Teariki was not engaged in safety work at the SA3 Project site, he undertook the work of a construction worker.[59]
[58] T88.45-T89.30
[59] T90.5
17 February 2010 – Mr Teariki resigns from CFMEU
In early February 2010 Mr Teariki was informed by an employee of his bank that Mr Teariki’s account was overdrawn because amounts were being debited from his account in favour of the CFMEU to cover membership fees.[60] Between 1 and 16 February 2010 Mr Teariki had a conversation with a CFMEU organiser and Mr Fihi, another member of the CFMEU. Mr Fihi told Mr Teariki that Mr Teariki owed the CFMEU the sum of $245. Mr Fihi said:[61]
You’re listed as a non-worker so you aren’t paying the full rates on your union fees. As you are working you should be paying the full rate. You should know the system.
[60] Teariki affidavit, [21]
[61] Teariki affidavit, [23]
On 16 February 2010 Mr Fihi met with Mr Teariki and demanded that Mr Teariki pay money Mr Fihi claimed Mr Teariki owed the CFMEU. Mr Teariki paid Mr Fihi cash in the amount of $250.[62] On 17 February 2010 Mr Teariki cancelled his membership with the CFMEU.
Shortly after 17 February 2010 – Mr Rodriguez expresses unhappiness at Mr Teariki’s resignation from the CFMEU
[62] Teariki affidavit, [25] – [27]
Shortly after Mr Teariki resigned from the CFMEU, he had a conversation with Mr Tony Rodriguez. Mr Rodriguez was the CFMEU delegate for the Australian Capital Territory, and he was known by the name of “Rooster”.[63] Just after Christmas 2009 Mr Rodriguez commenced work on the SA3 Project as a “dogman”.[64] In his conversation with Mr Teariki, Mr Rodriguez said words to the effect:[65]
I heard you cancelled your membership. You’re supposed to be part of the union. I’m not happy about it. I’m going to see Greg Lemin and find out if a non-union member is allowed to work on this site or else you’re gonna . . . [sic] you know what I mean.
[63] Teariki affidavit, [11]
[64] Teariki affidavit, [18]
[65] Teariki affidavit, [29]
Mr Teariki reports conversation with Mr Rodriguez to Mr da Silva
Mr Teariki then had a conversation with Mr da Silva, the site manager of the SA3 Project. According to Mr Teariki, he said to Mr da Silva:[66]
Pedro, Rooster came up to me and asked me about my union membership. He said he’s going to go and see Greg and do something about it. I’m not happy about it you know. What should I do?
Mr da Silva suggested Mr Teariki write up the incident “in your diary”.[67]
[66] Teariki affidavit [32]
[67] Teariki affidavit, [32]
Mr da Silva, in a statement that has been admitted into evidence, also refers to a conversation he had with Mr Teariki. His account of the conversation does not mention Mr Teariki stating Mr Teariki had a conversation with Mr Rodriguez:[68]
In early February 2010, the Baulderstone Safety Officer on the site Natama [sic] Teariki (“Tama”) approached me and told me that Fihi (“Fihi”) from the Construction, Forestry, Mining and Energy Union (“CFMEU”) was chasing him for money. I asked what it was about and he told me that he’d fallen behind in his dues. He said he’d resigned from the union but then said that the union were still direct debiting money from his account. I found that strange that he was behind in his payments as the fees were being direct debited.
[68] da Silva statement, Exhibit 2 [10]
I find that Mr Teariki had a conversation with Mr da Silva in which he said to Mr da Silva words to the effect that Mr Teariki in his affidavit deposes he said and words to the effect Mr da Silva in his statement says Mr Teariki said. They cover two related but different topics and, for that reason, the two accounts are not inconsistent. Further, as I set out below, Mr Teariki recorded the conversation he says he had with Mr Rodriguez in a diary note. Apart from the use of the words “will talk to Greg to sack me”, it has not been suggested that Mr Teariki’s diary note should not be accepted as evidence of what it records. At any rate, the diary note is not only consistent with later events; those later events would not make sense unless the diary note is accepted as a faithful record of what it purports to record.
In response to Mr da Silva’s suggestion, Mr Teariki made an entry in the site office computer using the “Ezi-Diary” program. Mr Teariki made the following entry:[69]
Spoke to Rooster about cancelling my membership with CFMEU! and said that he is not happy with what I have done. He ask [sic] me why did eye [sic] quit! my replied [sic] was that I spoke to FIHI, and that I had some outstanding fees to pay to CFMEU which FIHI said it was $245 but I gave him $250 on friday [sic] 19/Feb/100 [sic].
So Rooster said well he’s not happy with that, and that I’m a CW & that we work to the UNION EBA I said that I went on salary whilst working on EBB. And Rooster told me that he will find out if I’m CW or not or he will talk to Greg to sack me.
[69] Exhibit 1, page 99
The “Greg” referred to in this diary note was a reference to the second respondent, Mr Gregory Lemin. At that time Mr Lemin was the Project Manager on the Section 68 Project for the Australian National University.[70] He was also engaged as the Project Manager on the SA3 Project.[71]
[70] Lemin affidavit, [2]
[71] Lemin affidavit, [3]
The conversation Mr Teariki in his affidavit says he had with Mr Rodriguez does not have Mr Rodriguez state that he would have “Greg” sack Mr Teariki. Mr Teariki confirmed in evidence that Mr Rodriguez did not say these words. [72] In a statement Mr Teariki gave to Baulderstone’s solicitor on 21 June 2010, Mr Teariki said:[73]
Rooster never told me that I’d get the sack. He had patted me on the back and said that he’d look into it. I took that to mean that he was going to fix me up and get me sacked. Rooster never said I’d get sacked.
[72] T108.20
[73] Phillip affidavit, annexure “GP-3”
Mr Rodriguez and Mr Lemin speak with Mr da Silva
Shortly after the conversation between Mr Rodriguez and Mr Teariki, Mr Rodriguez approached Mr Lemin and had a conversation with him. According to Mr Lemin, Mr Rodriguez said Mr Teariki had informed Mr Rodriguez that he was on salary, and he asked Mr Lemin whether he knew why that was so. Mr Lemin said he did not know, and suggested that Mr da Silva might know about it.[74] For the reasons I explain below, I do not accept Mr Lemin’s affidavit is a complete account of the discussion he had with Mr Rodriguez.
[74] Lemin affidavit, [19]
Mr Lemin and Mr Rodriguez then went to see Mr da Silva. According to Mr Lemin, a conversation to the following effect took place:[75]
Lemin:Tony’s told me that Tama is employed on salary. Do you know how he is engaged, do you know if that is true or not?
Da Silva:I’m not sure.
[75] Lemin affidavit, [21]
In cross-examination, Mr Lemin accepted that during his conversation he asked Mr da Silva if Mr da Silva knew Mr Teariki had resigned from the CFMEU, or words to that effect.[76]
[76] T204.5
According to Mr da Silva the following occurred:[77]
[77] Statement dated 31 March 2010 at [16], being Exhibit 2 in the proceedings.
In about the middle of March 2010 [sic][78], Rooster and the site [Manager] came into my office and shut the door. Greg asked me why Tama had left the union. Greg told me that Tama should be in the union to smooth it over and not cause any waves.
I said: “I couldn’t give a [expletive]. We were behind program. You want me to catch up a day and you’re worrying about . . .like this. I couldn’t care what union you’re in or what religion you are, if it was something to do with his work performance then I’d care but it’s just about whether Tama is in the union or not which I don’t care about . . . .”
Rooster also questioned me as to why Tama was on salary. Greg said that he couldn’t be the Chair of the Safety Committee if he was on salary.
I said: “That all happened twelve months ago. I’m not HR, Ring HR.”
[78] Although Mr da Silva refers to the middle of March, there was no issue that Mr da Silva was referring to the meeting Mr da Silva had with Mr Lemin and Mr Rodriguez on 22 February 2010.
Greg and Rooster then left my office.
On 22 February 2010 Mr da Silva made the following diary entry:[79]
greg and rooster had words with me re: - tama not being in the union and why was be [sic] put on salary with out [sic] rooster knowing.
i think this is all a load of [expletive], i will be sending bill an email.
[79] Exhibit 1, page 99D
The accounts of Mr Lemin and of Mr da Silva are not inconsistent. Mr Lemin deposes to one topic being discussed, namely the reasons why Mr Teariki was on a salary contract. Mr da Silva refers to two subjects being discussed - Mr Teariki’s resignation from the union, and the reasons Mr Teariki was on salary without Mr Rodriguez having been informed.
In my opinion, the best evidence of what was said at the meeting is to be found in the diary entry Mr da Silva made on 22 February 2010 and in the email Mr da Silva sent to Mr Bill Stavrinos, and copied to the fourth respondent, Ms Kidman, on 22 February 2010.[80] Mr Stavrinos was the Operations Manager for Baulderstone in New South Wales and the Australian Capital Territory. Ms Kidman was Baulderstone’s Human Resources Manager for New South Wales and the Australian Capital Territory. In his email of 22 February 2010, Mr da Silva stated as follows:
[80] Exhibit 1, page 100
Greg has asked me today, why Tama has resigned for [sic] the Union (CFMEU), he told me that the rest of the CW’s aren’t happy with that. He also asked me when was Tama put on Salary and why wasn’t Rooster informed about it.
I honestly don’t care if he isn’t in the Union it is his decision, basically I was told if he doesn’t sign up again there will be dramas.
Could you please inform me if our CW’s need to be in the Union or not.
When you get a chance could you please give me a call.
I find that on 22 February 2010 a meeting was held between Mr Rodriguez, Mr Lemin, and Mr da Silva; that meeting was initiated by Mr Lemin and Mr Rodriguez as a result of a conversation Mr Rodriguez had with Mr Lemin; and the conversation that Mr Lemin had with Mr Rodriguez, which led to the meeting with Mr da Silva, was not principally about the matter deposed to by Mr Lemin in his affidavit, namely, why Mr Teariki was on salary; the conversation was principally about Mr Teariki’s having resigned from the CFMEU, and Mr Rodriguez’s being concerned about that fact, and about why Mr Rodriguez had not been consulted at the time Mr Teariki went on to the salary contract.
22 February 2010 (1.03 pm) – Mr da Silva sends email to Mr Stavrinos and Ms Kidman
As I say above, on 22 February 2010, after the meeting between Mr Lemin, Mr Rodriguez, and Mr da Silva, Mr da Silva sent the email to which I refer above to Mr Stavrinos and copied to Ms Kidman. The specific question Mr da Silva asked was whether “our CW’s [construction workers] need to be in the Union or not”.
22 February 2010 – Ms Kidman reads Mr da Silva’s email
In her affidavit Ms Kidman says that when she received the email from Mr da Silva she “was concerned about the content of the email because I knew that Mr Teariki was a construction worker on the SA3 project in Canberra and that the terms and conditions of employment for construction workers on that project were governed by the Baulderstone Building ACT Agreement 2009 – 2011 . . . I was unaware of any salary contract agreement that had been made for Mr Teariki”.[81] There are a number of difficulties in the way of my accepting this part of Ms Kidman’s evidence.
[81] Kidman affidavit, [4]
First, in her evidence before the Court, Ms Kidman, in response to the question whether at the time she received Mr da Silva’s email she knew who Mr Teariki was, said that “I reviewed our system to determine who Tama was” and, in response to the question “[a]nd you discovered, did you, that he was a safety officer”, she said “correct”.[82] From this evidence, I understood Ms Kidman intended to convey to the Court that, at the time she received the email, she did not know who Mr Teariki was, and that she “reviewed our system to determine who Tama was”.[83] If that is what Ms Kidman intended to convey in her evidence before the Court, it is inconsistent with what she stated in her affidavit, namely that she knew that Mr Teariki “was a construction worker on the SA3 project in Canberra”. Further, Ms Kidman did not say in her affidavit she made any enquiry of Baulderstone’s records to determine who Mr Teariki was.
[82] T137.15-25
[83] T137.20
The second difficulty is Ms Kidman’s assertion that she “knew” that Mr Teariki was a “construction worker” and that construction workers were bound by the Baulderstone Building ACT Agreement 2009 – 2011. I cannot accept that evidence to the extent it is intended to convey Ms Kidman’s recollection of her knowledge at the time she received Mr da Silva’s email. Just over four weeks before Ms Kidman received Mr da Silva’s email she considered a request by Mr Teariki for a salary advance of $1,800. That led Ms Kidman to compose and send on 20 January 2010 an email to Baulderstone’s “General Manager, HR, Safety & Sustainability” recommending that Baulderstone grant Mr Teariki’s request for a salary advance.[84] In that email, Ms Kidman said:
I am seeking your approval for a salary advance (of $1,800) for a Safety Officer (Ngatama Teariki) on ANU Student Accom 3 in Canberra. I have attached the letter outlining the repayment schedule and conditions FYI.
. . . .Tama [i.e., Mr Teariki] has been employed for approx. 18 months, initially as a CW then promoted to Salary approx. 1 year ago. Tama has a healthy annual leave balance of 16 days . . .
[84] Exhibit 3
Mr Teariki’s request for the salary advance was approved, and this resulted in Ms Kidman sending a letter to Mr Teariki on 20 January 2010.[85] In the first paragraph of the letter, Ms Kidman stated:
Further to recent discussion with Bill Stavrinos regarding an agreed salary advance of $1,800 due to your current personal circumstances, we wish to confirm the repayment schedule and conditions associated with this advance.
[85] Exhibit 4
The third difficulty with Ms Kidman’s evidence is her assertion she was “unaware of any salary contract agreement that had been made for Mr Teariki”. I cannot accept that when Ms Kidman received Mr da Silva’s email she was “unaware” of the fact that Mr Teariki was on a salary contract. In cross-examination, Ms Kidman was asked questions about whether she recalled what steps she took in order to process Mr Teariki’s request for an advance on his salary. Ms Kidman said she could not recall anything.[86] The only concession Ms Kidman made to the possibility of her having been aware as at 22 February 2010 of Mr Teariki being on the salary contract was the following evidence she gave:[87]
[D]o you recall that you looked at that in January 2010, when you were processing the salary advance? - - -No, I don’t because I don’t remember processing the advance.
What – but you would agree that if you had no knowledge or pre-knowledge of a worker for whom you were doing this sort of salary advance, you would have had to have found out the terms of his employment contract? - - - Practice would suggest that.
[86] T143.10-144.5
[87] T143.45-144.10
A fourth difficulty with Ms Kidman’s evidence in paragraph 4 of her affidavit is her assertion that when she received Mr da Silva’s email of 22 February 2010 she became “concerned” about Mr Teariki being a salaried contract worker. I cannot accept she had any such concern. Ms Kidman expressed no such concern, and there is no evidence to suggest she conducted herself as if she did have such concern, at Mr Teariki being on a salary contract when she processed his request for a salary advance.
22 February 2010 (between 1.03 pm and 1.26 pm) – Ms Kidman and Mr Lemin have a conversation
On 22 February 2010, between 1.03 pm when Ms Kidman received Mr da Silva’s email, and 1.26 pm when Ms Kidman responded to Mr da Silva’s email,[88] Ms Kidman and Mr Lemin had a conversation about the matters raised in Mr da Silva’s email. According to Ms Kidman, Mr Lemin said that Mr Rodriguez had informed him that Mr Teariki was on salary, and Mr Lemin asked Ms Kidman whether she knew anything about that. Ms Kidman said she knew nothing about it but would look into it.[89]
[88] Exhibit 1, page 102
[89] Kidman affidavit, [5]
According to Mr Lemin’s affidavit, he told Ms Kidman: [90]
I have been advised that Tama is employed on salary and have been asked to confirm whether or not this is correct. Do you know if this is the case or not? If he is on salary, should there have been consultation with Rooster as the Employee Representative? I’ve also been advised that Tama is resigning from the union.
[90] Lemin affidavit, [24]
In cross-examination, Mr Lemin said that after his meeting with Mr da Silva and Mr Rodriguez, he had a conversation either with Ms Kidman or Mr Razlog and in that conversation he did mention the fact that “we had been told Tama had resigned from the union”.[91] He said, however, that “purely it was a fact that the claim had been made that Tama was resigning from the union”.[92]
[91] T212.15
[92] T213.5
I do not accept that a conversation between Ms Kidman and Mr Lemin to the effect deposed by Ms Kidman or Mr Lemin took place. First, the conversation as deposed by Ms Kidman is premised on Ms Kidman not knowing anything about Mr Teariki being on salary. As I have already found, I do not accept Ms Kidman was not aware of Mr Teariki’s being on a salary. Secondly, Ms Kidman made notes during her conversation with Mr Lemin.[93] Her notes contain two dot points – “Tama out of union”, and “Toma salaried – consultation?”. These do not reflect a conversation to the effect deposed by Ms Kidman or Mr Lemin. They do reflect, however, discussion on two matters identified in Mr da Silva’s email, namely, Mr Teariki having “resigned from the Union (CFMEU)”, and Mr Rodriguez not having been consulted about Mr Teariki’s having gone on salary. Third, her account does not reflect what Ms Kidman, in an email she sent to Mr da Silva on 22 February 2010, said she discussed with Mr Lemin on 22 February 2010.[94] In that email Ms Kidman said:
I spoke to Greg Lemin about these issues this morning (union membership and the consultation of moving from wages to salary) and will respond (for Bill) either later today or tomorrow.
[93] Exhibit 1, page 101
[94] Exhibit 1, page 102
Ms Kidman was cross-examined about Ms Kidman’s recording “Tama out of union” in her diary note. It is appropriate I set out her evidence in full:[95]
And you see that the very first thing that you have jotted down is that:
Tama out of union.
[95] T141.5-35
Does that remind you that you did have some discussion with Mr Lemin about that issue? - - - Yes. But it was a very brief discussion.
Because that was of less concern to you than the salary issue? - - - No. It wasn’t of less concern. It just wasn’t a concern for Baulderstone whether Tama was in the union or not.
No. But wasn’t it a concern for Baulderstone that Mr Lemin had the view that he should rejoin the union? - - - I don’t know he had that view.
Well, you read it in the email didn’t you? - - - But it’s not his email.
No. But Mr Da Silva was telling you that Mr Lemin had said that. I think you agreed with that earlier? - - - Yes. As per Pedro’s recollection or Pedro’s recollection of events.
So you didn’t bother following that up with Mr Lemin himself in this meeting? - - - This was a very brief phone call.
I think you are agreeing with me. You didn’t follow it up with Mr Lemin in that meeting? - - - There was – there was some very brief discussion about Tama being out of the union. That was a comment. But the focus of that discussion was about how Tama was classified.
I do not accept Ms Kidman’s evidence to the extent she intended to convey that the focus of her discussion with Mr Lemin was how Mr Teariki was classified, or that she in fact discussed Mr Teariki’s classification under the EBA. I find that the discussion Ms Kidman had with Mr Lemin concerned the two matters Ms Kidman identified in the email she sent to Mr da Silva on 22 February 2010 after her discussion with Mr Lemin, namely, Mr Teariki’s union membership, and why Mr Rodriguez was not consulted about Mr Teariki’s having been placed on a salary contract.
In re-examination Ms Kidman was asked about the entry “Toma salaried – consultation”.[96] Ms Kidman gave the following evidence:
When I spoke to Greg, we talked about the fact that the EBA had an alternative salary provision. We talked about that provision only being utilised if the appropriate consultation methods had – had transpired.
[96] T177.20
I assume that, when giving this evidence, Ms Kidman had in mind clause 3.4 of the Baulderstone Building ACT Agreement 2009 – 2011 which provides:
Alternative pay arrangements, including the adoption of annualised salaries, will be discussed between the Company and designated Employee Representatives with the intention to develop and implement an agreed programme during the life of this Agreement.
I do not accept Ms Kidman’s evidence to the extent she intended to convey that this was the only conversation she had with Mr Lemin which fell within the scope of “Toma salaried – consultation” she recorded in her diary. I find that if, in her conversation with Mr Lemin, she did in fact refer to the EBA, it was ancillary to one of the two issues Mr da Silva identified in his email of 22 February 2010, namely, “why wasn’t Rooster informed about” Mr Teariki’s having been “put on Salary”.
Mr Lemin’s account of the conversation he says he had with Ms Kidman more closely approximates what Ms Kidman in her email to Mr da Silva said she discussed with Mr Lemin. However, I do not accept his account to the extent it conveys that he only passed on as news, as it were, the fact that Mr Teariki had resigned from the union. Ms Kidman’s email to Mr da Silva on 22 February 2010 states that she spoke with Mr Lemin about two issues, one of which was “union membership”. The fact that Ms Kidman refers to this as a topic about which she had spoken with Mr Lemin implies something more than a mere communication by Mr Lemin of the fact Mr Teariki had resigned from the union. That is further confirmed by Ms Kidman stating in her email that she “will respond (for Bill) either later today or tomorrow”. That implies that Ms Kidman intended to respond to the two matters she spoke about with Mr Lemin, which she described in her email as “union membership and the consultation of moving from wages to salary”
22 February 2010 (1.26 pm) – Ms Kidman responds to Mr da Silva’s email
As I note above, at 1.26 pm on 22 February 2010, Ms Kidman responded to Mr da Silva’s email of 22 February 2010 by stating that she had spoken to Mr Lemin “about these issues this morning (union membership and the consultation of moving from wages to salary)”, and that she “will respond (for Bill) either later today or tomorrow”.[97] Mr Razlog, the third respondent, was added as a recipient to the email. Mr Razlog then occupied the position of “Employee Relations Manager at Baulderstone”.[98]
[97] Exhibit 1, page 102
[98] Razlog affidavit, [2]
22 February 2010 (3.41 pm) – Mr Stavrinos sends email to Ms Kidman
At 3.41 pm on 22 February 2010 Mr Stavrinos sent an email to Ms Kidman in which he stated:[99]
I don’t know what the arrangements (above or below the table) when we tied up our eba’s particularly the flexibility for cw’s to move to salary do you? On the agenda for tomorrow morning.
[99] Exhibit 1, page 103
23 February 2010 – meeting between Mr Stavrinos, Mr Razlog, and Ms Kidman
On 23 February 2010, Ms Kidman and Mr Razlog met with Mr Stavrinos. Ms Kidman made notes during the meeting.[100] The notes she made are as follows:[101]
Rooster & Toma – SA3
both safety officers
[100] Kidman affidavit, [8]
[101] Exhibit 1, page 105
-Chairman of safety committee
-Rooster? Dogman on crane SA3
According to Ms Kidman, one of the matters they discussed was “the situation involving Mr Teariki”. This involved their looking at “Mr Teariki’s contract”.[102] Ms Kidman says she does not recall the precise words or who said what, but, she says, she does know that words to the following effect were said:[103]
[102] Kidman affidavit [8]
[103] Kidman affidavit, [8]
Tama is on salary
We need to find out more about how Tama came to be working on the SA3 project site on salary.
We need to understand the nature of the work that Tama is doing on the SA3 Project and determine if he should be classified under the Agreement.
I think you two have to go to Canberra and meet with Tama and Greg before we make a decision.
Ms Kidman said Mr Stavrinos made the last statement.
Ms Kidman was cross-examined about the note she made during the meeting. Ms Kidman accepted that Mr Rodriguez was not a safety officer, but a work safety representative which was a different position from a safety officer.[104]
[104] T150.20
Mr Razlog, in his affidavit, says that on 23 February 2010 he met Ms Kidman and Mr Stavrinos. He says that one issue that was discussed at the meeting was “Mr Teariki’s role and his terms and conditions of his employment”.[105] He also said that both he and Mr Stavrinos read Mr Teariki’s employment contract. Mr Razlog says that he reached certain conclusions, but he does not say that these were conclusions that were discussed at the meeting. Mr Razlog does not otherwise say what was discussed at the meeting.
[105] Razlog affidavit, [14]
I do not accept Ms Kidman’s or Mr Razlog’s evidence to the extent it is intended to suggest that the purpose of the meeting was to determine what work Mr Teariki carried out and into what classification of employee under the EBA he should fall, and that the end result of that meeting was Mr Stavrinos directing Ms Kidman and Mr Razlog to go to Canberra to investigate this question. Nor do I accept that Mr Stavrinos directed Ms Kidman or Mr Razlog to meet with Mr Teariki, at least not for the purpose of determining the work he did. First, Ms Kidman’s note indicates that someone in the meeting knew very well what Mr Teariki was doing. Ms Kidman recorded Mr Teariki was a safety officer. Second, from the note, the discussion appeared to concern in equal, if not greater measure the work Mr Rodriguez did. Why that was discussed was not revealed in the evidence before me. Third, the statements Ms Kidman says she recalls were said at the meeting are not reflected in the notes she took at the meeting.
2 March 2010 – claimed meeting between Ms Kidman, Mr Lemin and Mr Razlog
Ms Kidman, in her affidavit, says that after her meeting with Mr Stavrinos and Mr Razlog on 2 March 2010, she and Mr Razlog attended a meeting in Canberra with Mr Lemin. Ms Kidman says she made some notes during the meeting.[106] Her notes record the following:
[106] Kidman affidavit, [10]; exhibit 1, page 106
Responsibility statement – Safety Officer
Tony S68 – same role
moved to SA3 late 2009 short term
give Tama some assistance
- Toma efficiently
- Rooster construction [or contributes]/crane crew
In cross-examination, Ms Kidman accepted that the reference in her note to “Tony S68 - same role” was a reference to Mr Rodriguez and that it was a reference to Mr Rodriguez being, not a safety officer, but a safety representative,[107] and that a safety representative was a different position from that of a safety officer.[108] Ms Kidman also said that the word after “Rooster” is “contributes”, not “construction”, although she said the writing is “difficult to read”.[109] In my opinion, the presence of the slash makes it more probable that the words are “construction/crane crew”, but nothing turns on this.
[107] T152.15
[108] T152.30
[109] T155.37
In her affidavit, Ms Kidman says she had the following conversation with Mr Lemin:[110]
Mr Lemin:Here is Tama’s responsibility statement. He is the elected safety officer, but is also doing construction work. Rooster has the same role. He has come over to this project to provide Tama with some training.
Ms Kidman:Is he doing construction work?
Mr Lemin:Yes, he moved to SA3 in late 2009. He’s doing construction work as a CW5. Rooster came over to this job to give Tama some assistance.
Ms Kidman:We need to review why a construction worker is classified as a salary employee.
[110] Kidman affidavit, [10]
In his affidavit, Mr Razlog also says he and Ms Kidman had a meeting with Mr Lemin in Canberra. Mr Razlog says that words to the following effect were spoken:[111]
Mr Lemin:Tama is the Safety Officer but he does construction work. Here is his job statement.
Ms Kidman:Is he doing construction work?
Mr Lemin:Yes, he moved to SA3 in late 2009. He’s doing construction work as a CW5. Rooster came over to this job to give Tama some assistance.
Mr Razlog:We are going to have to look into this, it’s very unusual because he’s on salary. Construction workers aren’t on salary. Do you know how this happened?
Mr Lemin:No. I am as surprised as you are.
[111] Razlog affidavit, [17]
In Ray v Radano the majority held that where an employer, under an agreement not made by reference to an applicable award, paid an amount on account of wages at a rate higher than the amount provided for by the award, but did not pay overtime as required by the award, the employer was entitled to credit against his liability to pay overtime the above-award wages the employer paid the employee. The majority explained what this practically meant with the following illustration:[211]
For the purposes of illustration let us imagine the following hypothetical case: a worker under his contract of service was promised $60 for 40 hours’ work per week when the appropriate award fixed the price or rate for 40 hours work per week at $40; the worker worked 46 hours in a particular week but was still paid his usual wage of $60. In such a case the worker, if he so desired, would be entitled to bring an action in a civil court to recover for the extra five hours worked in the week in question, but he would not be entitled to obtain an order under s 92 unless the amount which would have been due to him under the award exceeded $60.
[211] [1967] AR (NSW) 471 at page 475
The plurality in Ray v Radano was of the view that the position would be otherwise if the contract provided for the payment for some other purposes not covered by the applicable award, say, fares or a uniform allowance. Here, the plurality said that the amounts paid for these purposes could not be taken into account “in determining the correct balance due to” the employee for wages.[212]
[212] [1967] AR (NSW) 471 at page 475
Sheldon J, however, took a different approach. In his Honour’s view, no payment made on account of a promise beyond that provided in the award – what Sheldon J described as an “extra-award payment” or a payment made for “a promise extraneous to the award obligation” – could be set off against the employer’s obligations under the award.[213]
To put it in more concrete terms, if the award rate for 40 hours’ work is $40 with overtime payable in addition but the employer agrees to pay a uniform allowance of $5 per week, it is common ground that it is no answer to a claim under s 92 for $40 ordinary time and $5 overtime worked to show that in fact $45 went into the employee’s pocket. If this is so, I regard it as equally no answer if he got $45 only because the employer agreed to pay him that amount for no more than 40 hours’ work. In each case, as I see it, the employer cannot allocate to one subject matter what he has already paid in pursuance [to] a promise related to another subject matter.
[213] [1967] AR (NSW) 471 at page 478
Sheldon J, referring to the example of the majority, also said (emphasis added):[214]
I regard it as a departure from the provisions of s 92 and, indeed, a contradiction in terms if an amount ($20 in the illustration) promised and paid as an excess over one part of the award entitlement can be used as if it had been a payment in fulfilment of another part of the award obligation. This involves re-allocating an amount promised to, and earned by the complainant, in respect of subject A (40 hours’ work) to meet a claim in respect of subject (B) (five hours overtime). This would be striking a false balance, not a true one, under s 92, because it is not a balance between the ‘price or rate’ fixed by the award and payment made in respect thereto. It also involves, as I see it, a repudiation of the contract in order to reduce the balance due under the award. So, in essence, my view is that because s 92 restricts what can be claimed to the award obligation, set-offs must also be restricted to payments which are referable, expressly or by implication, to the award obligation. If a complainant cannot enhance his claim under s 92 because of private contract, neither can a respondent use private contract to reduce it.
[214] [1967] AR (NSW) 471 at page 479
The Full Federal Court in Poletti also referred to the decision of the Industrial Commission of New South Wales in Pacific Publications Pty Ltd v Cantlon.[215] In that case, the question was whether a payment which the employer had described as a “special gratuity” could be set off against the award obligation of the employer to pay redundancy. The Commission upheld the Industrial Magistrate’s decision that it could not. In a passage quoted by the Full Federal Court in Poletti, the Commission said:[216]
The company clearly appropriated the payment, at the time of making it, as a ‘special gratuity’ in the special circumstances of the retrenchments then occurring and not as a payment in respect of any obligation which had arisen or might arise under cl 12.
[215] (1983) 4 IR 415
[216] Pacific Publications Pty Ltd v Cantlon (1983) 4 IR 415 at 421
The Full Federal Court in Poletti concluded that “it is appropriate that this court should apply the principles discussed by Sheldon J in Ray v Radano and by the Industrial Commission in Pacific Publications”.[217] Before the Full Court so found, it said the following about the judgment of Sheldon J in Ray v Radano and of the Commission in Pacific Publications:[218]
It is to be noted that there are two separate situations dealt with in the passage from the judgment of Sheldon J which has been quoted and in the reasoning of the Commission in Pacific Publications. The first situation is that in which the parties to a contract of employment have agreed that a sum or sums of money will be paid and received for specific purposes, over and above or extraneous to award entitlements. In that situation, the contract between the parties prevents the employer afterwards claiming that payments made pursuant to the contractual obligation can be relied on in satisfaction of award entitlements arising outside the agreed purpose of the payments. The second situation is that in which there are outstanding award entitlements, and a sum of money is paid by the employer to the employee. If that sum is designated by the employer as being for a purpose other than the satisfaction of the award entitlements, the employer cannot afterwards claim to have satisfied the award entitlements by means of the payment. The former situation is a question of contract. The latter situation is an application of the common law rules governing payments by a debtor to a creditor. In the absence of a contractual obligation to pay and apply moneys to a particular obligation, where a debtor has more than one obligation to a creditor, it is open to the debtor, either before or at the time of making a payment, to appropriate it to a particular obligation. If no such appropriation is made, then the creditor may apply the payment to whatever obligation or obligations he or she wishes . . . .
[217] Poletti v Ecob (1989) 91 ALR 381 at page 394
[218] Poletti v Ecob (1989) 91 ALR 381 at page 393
Poletti and other cases were referred to by Perram J in ACE Insurance Ltd v Trifunovski (No 2) where his Honour noted that those authorities “establish two propositions”, namely:[219]
(a) if by the contract between the parties they have agreed that a payment will be made over and above an award payment or that a payment will be made that is extraneous to an award payment then the employer is prevented from claiming that the payment made pursuant to the contract may be set up as a discharge of its obligation under the award; and
(b) if in a situation of outstanding award entitlements an employer pays an employee a sum of money and designates it as being for a purpose other than the award payment the employer may not later claim that it has paid the award entitlement.
[219] (2012) 215 IR 206 at 214 ([25])
In the light of the principles discussed in these cases, it is incorrect to submit, as Baulderstone submits, that the salary contract prevented Baulderstone from performing its obligations under the EBA. To the extent the salary contract imposed obligations on Baulderstone beyond those imposed on it under the EBA, Baulderstone was required to perform those obligations and remained liable to perform the obligations it had under the EBA. To the extent the salary contract imposed obligations on Baulderstone that mirrored or overlapped those contained in the EBA, Baulderstone could rely on its performance of those obligations as a pro tanto discharge of its obligations under the EBA.
There is another, and more basic, reason why the salary contract could not be regarded as something that prevented Baulderstone from performing the obligations it owed Mr Teariki under the EBA. The obligations Baulderstone owed towards Mr Teariki under the EBA could only arise if Mr Teariki was an employee. That is so because the EBA applied to employees. Immediately before Mr Teariki was required to resign from the salary contract, Mr Teariki was an employee of Baulderstone. The only reason he was an employee of Baulderstone was because of the salary contract; that was the only contract of employment between Baulderstone and Mr Teariki. In other words, what gave rise to Baulderstone’s obligations under the EBA was the salary contract. In these circumstances, it is a contradiction to submit, as Baulderstone in substance submits, that the salary contract which gave rise to Baulderstone’s obligations under the EBA at the same time rendered it legally impossible for Baulderstone to satisfy those obligations.
For these reasons, I do not accept Baulderstone’s submissions that the Act authorised Baulderstone to require Mr Teariki to resign from the salary contract.
Did Baulderstone undertake the adverse action for a reason which did not include as an operative reason Mr Teariki’s having resigned from the CFMEU?
In its Defence, Baulderstone pleads it did not desire or require Mr Teariki to sign the documents that were presented to him at the meeting of 25 March 2010 because he resigned from or was no longer a member of the CFMEU. Baulderstone says it required Mr Teariki to sign the documents because it had formed the view that in January 2010 Mr Teariki had ceased working on the EBB Project and had commenced work on the SA3 Project as a CW5 and therefore had to be employed according to the terms of the EBA, not according to the terms of the salary contract.[220] To prove this was its reason, or at least a substantial reason for acting as it did towards Mr Teariki (Claimed Reason), Baulderstone has relied on the evidence of Ms Kidman and Mr Razlog and, to a limited extent, evidence from Mr Lemin.
[220] Defence, [15]
I am not satisfied that the primary facts set out in paragraphs 181-201 of these reasons exclude as a real possibility that a substantial and operative factor in Baulderstone’s decision to take Mr Teariki off the salary contract was Mr Teariki’s not being a member, or his ceasing to be a member of the CFMEU. Nor am I satisfied that Baulderstone took that action for the Claimed Reason or for reasons which included the Claimed Reason as a substantial factor in taking the adverse action. Further, the primary facts are a basis on which it is open to me to find that Baulderstone took the adverse action against Mr Teariki for the reason, or for reasons that included as a substantial and operative factor Mr Teariki’s not being a member of the CFMEU or his having ceased to be a member of the CFMEU. And if it were relevant to Baulderstone’s liability under s.346 of the Act that I should find that Baulderstone took the adverse action against Mr Teariki for those reasons, I would so find.
Even if, however, I were to accept everything Ms Kidman, Mr Razlog, and Mr Lemin have deposed, that would not discharge the burden Bauldertsone carries to prove that it did not take adverse action against Mr Teariki for the reason that he was not, or ceased being a member of the CFMEU, or for reasons which included as a substantial and operative factor Mr Teariki’s not being or having ceased to be a member of the CFMEU. The reason is that Ms Kidman and Mr Razlog were not the decision-makers. The decision-maker was Mr Stavrinos. And Baulderstone did not call Mr Stavrinos to give evidence.
It is possible to prove a decision-maker’s state of mind without calling him or her. For example, evidence may be given of what the decision-maker said or what the decision-maker recorded in writing, perhaps together with evidence of why the decision-maker is not available to give evidence. And it appears that Baulderstone has sought to prove the state of mind of Mr Stavrinos with evidence given by Ms Kidman and Mr Razlog of what was said at the meeting of 4 March 2010, although Baulderstone has not adduced evidence to account for Mr Stavrinos’ not being called as a witness.[221]
[221] T221.10; Mr Lemin, in cross-examination, said that Mr Stavrinos was no longer employed by Baulderstone.
Even if I were to accept Ms Kidman’s and Mr Razlog’s evidence, that would not exclude the real possibility that Mr Stavrinos decided to take Mr Teariki off the salary contract for a reason or for reasons which included as a substantial and operative factor Mr Rodriguez having expressed unhappiness at Mr Teariki’s resignation from the CFMEU. That real possibility arises at the very least from the fact that Mr Stavrinos received the email from Mr da Silva on 22 February 2010 and from the fact that some ten days later, at the meeting of 4 March 2010, something was discussed which led Ms Kidman to record “Tama ® CW5”, and “Rooster up in office”.
Conclusion
The Director has established that Baulderstone required Mr Teariki to resign from the salary contract, and that in so doing it took adverse action against Mr Teariki. Baulderstone has not proved it took the adverse action for a reason or reasons that did not include as a substantial and operative factor Mr Teariki’s not being a member of or having ceased to be a member of the CFMEU and hence, because he was not a member of an industrial association or because he engaged in industrial activity within the meaning of s.347(a) of the Act. Accordingly, Baulderstone has contravened s.346 of the Act.
The adverse action claim against the employee respondents
The Director claims that each of the employee respondents was “involved” in Baulderstone’s contravention of s.346 of the Act within the meaning of s.550 of the Act. Section 550 provides:
(1)A person who is involved in a contravention of a civil remedy provision is taken to have contravened that provision.
(2)A person is involved in a contravention of a civil remedy provision if, and only if, the person:
(a)has aided, abetted, counselled or procured the contravention; or
(b)has induced the contravention, whether by threats or promises or otherwise; or
(c)has been in any way, by act or omission, directly or indirectly, knowingly concerned in or party to the contravention; or
(d)has conspired with others to effect the contravention.
Principles – “involved”
Section 550 of the Act is “drawn in terms very similar to those of s.75B” of what is now the Competition and Consumer Act 2010 (Cth).[222] That means that authorities which expound and construe s.75B of that Act are relevant to the meaning of s.550 of the Act. A useful statement of those principles was given by Lindgren J in Australian Competition and Consumer Commission v Giraffe World Australia Pty Limited (No 2).[223]
In Yorke v Lucas (1985) 158 CLR 661, in which the managing director of a vendor’s corporate agent was held not liable by reason of s.75B(1) for the vendor’s misrepresentation, Mason ACJ, Wilson Deane and Dawson JJ held in a joint judgment (at 670) that:
· for a person to be “knowingly concerned in” a contravention, he or she must have “knowledge of the essential facts constituting the contravention”;
· The word “knowingly” in para (c) qualifies the expression “concerned in” and not “a party to”; and
· “the proper construction of par (c) requires a party to a contravention to be an intentional participant, the necessary intent being based upon knowledge of the essential elements of the contravention.”
In the same case, Brennan J said that under s.75B, civil liability is imposed only on “those who engage in the conduct prescribed in s.75B with the state of mind ... call[ed] mens rea” (at 673).
[222] Dowling v Kirk & 16 Ors [2007] FMCA 2106 at [24] (Cameron FM, speaking of s.728 of the Workplace Relations Act 1996 (Cth) being the equivalent provision of s.550 of the Act).
[223] (1999) 95 FCR 302 at 346 ([184])
Lindgren J noted, however, that it “is not required that the accessory should have appreciated that the conduct was unlawful”.[224]
[224] (1999) 95 FCR 302 at 346 ([186])
Also relevant is the following passage from the reasons for judgment of the Full Federal Court in Construction, Forestry, Mining and Energy Union v Clarke:[225]
Regardless of the precise words of the accessorial provision, such liability depends upon the accessory associating himself or herself with the contravening conduct – the accessory should be linked in purpose with the perpetrators . . . . The words “party to, or concerned in” reflect that concept. The accessory must be implicated or involved in the contravention . . . or . . . must participate in, or assent to, the contravention.
[225] [2007] FCAFC 87 at [26] (cases referred to omitted). The accessorial provision that was relevant in that case was s.4(8) of the Workplace Relations Act1996 (Cth) as it stood at the relevant time.
Based on these principles, for any of the employee respondents to be taken, under s.550 of the Act, to have engaged in the adverse conduct I have found Baulderstone took, the Director must prove that each employee participated in Baulderstone’s taking adverse action against Mr Teariki and that they each knew that a substantial and operative factor in the reason or reasons for Baulderstone taking the adverse action against Mr Teariki was Mr Rodriguez having complained about Mr Teariki’s decision to resign from the CFMEU (proscribed reason). As I have found that the decision-maker in this case was Mr Stavrinos, the Director must prove the employee respondents knew that Mr Stavrinos took the adverse action for the proscribed reason.
Did the employee respondents participate in Baulderstone’s adverse action?
Ms Kidman and Mr Razlog participated in the adverse action I have found Baulderstone took against Mr Teariki. It was through their agency that the adverse action was taken. It was Ms Kidman and Mr Razlog who presented the relevant documents to Mr Teariki at the meeting of 25 October 2010 and required him to sign them. It is also clear that Mr Lemin participated in the adverse action, although at a lesser level. His participation consisted in joining in the signing of the three documents that Mr Teariki was required to sign.
Knowledge of proscribed purpose – preliminary matters
Unlike the position of an employer who is alleged to have taken adverse action in contravention of s.346 of the Act, s.361 does not apply to claims against persons alleged to have been involved in such contravention.[226] The question is whether I am satisfied on the evidence that Ms Kidman, Mr Razlog, and Mr Lemin knew that the adverse action they were involved in was taken for the proscribed reason.
[226] Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Visy Packaging Pty Ltd (No 3) [2013] FCA 525 at [241] (Marshall J)
Before I consider that question I should first say something about the standard of proof that I must apply. The standard of proof is that prescribed by s.140(1) of the Evidence Act 1995 (Cth). That is, I can only find the Director has proved his case against the employee respondents if I am satisfied that the case has been proved on the balance of probabilities. However, as provided in s.140(2) of that Act, I may take into account a number of matters when deciding if I am so satisfied. These include the nature of the cause of action, the nature of the subject matter of the proceedings, and the gravity of the matters alleged.
In the context of the Director’s claims against the employee respondents, I have taken into account the fact that the consequence of the Director succeeding on his claim will be to expose the employee respondents to a civil penalty. As a separate and additional matter, I have taken into account the nature of the allegations made against the employee respondents. In my view, there would be a degree of opprobrium attached to a finding that an employee has taken adverse action against another employee because the other employee was not or ceased to be a member of an industrial association.
Knowledge of proscribed purpose – Ms Kidman
Based on the findings I have made:
a)Ms Kidman was made aware by Mr da Silva’s email of 22 February 2010 that Mr Rodriguez had complained to Mr Lemin and Mr da Silva about Mr Teariki not being a member of the CFMEU and about Mr Rodriguez not having been consulted about Mr Teariki going on salary;
b)on 22 February 2010 Ms Kidman discussed these two issues with Mr Lemin;
c)on 4 March 2010 Ms Kidman was present at the meeting in which Mr Stavrinos decided that Mr Teariki should go on wages;
d)one of the matters that was discussed at the meeting was Mr Rodriguez complaining to Baulderstone about Mr Teariki’s not being or having ceased to be a member of the CFMEU and Mr Rodriguez not having been consulted about Mr Teariki going on salary; and
e)Mr Rodriguez’s complaint, to the extent it related to Mr Teariki’s not being, or ceasing to be, a member of the CFMEU, was a substantial and operative factor in the decision Mr Stavrinos made to take Mr Teariki off the salary contract and to put him on wages.
These findings satisfy me to the requisite standard that Ms Kidman was aware that a substantial and operative factor in the decision Mr Stavrinos made to take Mr Teariki off salary and to put him on wages was the complaint Mr Rodriguez made about Mr Teariki not being or ceasing to be a member of the CFMEU. Ms Kidman, therefore, had knowledge that the adverse action she was directed to take and which she did take was taken for reasons that included as a substantial and operative factor Mr Teariki’s not being or having ceased to be a member of the CFMEU.
Knowledge of proscribed purpose – Mr Razlog
Based on the findings I have made:
a)Mr Razlog was made aware by the email Ms Kidman sent to Mr da Silva on 22 February 2010 and copied to Mr Razlog that Mr Rodriguez had complained to Mr Lemin and Mr da Silva about Mr Teariki not being a member of the CFMEU and about Mr Rodriguez not having been consulted about Mr Teariki going on salary;
b)on 4 March 2010 Mr Razlog was present at the meeting in which Mr Stavrinos decided that Mr Teariki should go on wages;
c)one of the matters that was discussed at the meeting was Mr Rodriguez complaining to Baulderstone about Mr Teariki’s not being or having ceased to be a member of the CFMEU and Mr Rodriguez not having been consulted about Mr Teariki going on salary; and
d)Mr Rodriguez’s complaint, to the extent it related to Mr Teariki’s not being, or ceasing to be, a member of the CFMEU, was a substantial and operative factor in the decision Mr Stavrinos made to take Mr Teariki off the salary contract and to put him on wages.
These findings also satisfy me to the requisite standard that Mr Razlog was aware that a substantial and operative factor in the decision Mr Stavrinos made to take Mr Teariki off salary and to put him on wages was the complaint Mr Rodriguez made about Mr Teariki not being or ceasing to be a member of the CFMEU. Mr Razlog, therefore, had knowledge that the adverse action he and Ms Kidman were directed to take, and which they did take, was taken for reasons which included as a substantial and operative factor Mr Teariki’s not being, or having ceased to be a member of the CFMEU.
Knowledge of proscribed purpose – Mr Lemin
Mr Lemin was aware that Mr Rodriguez complained about Mr Teariki. Mr Lemin’s role in relation to that complaint, however, was limited to communicating it to Mr da Silva and to discussing it with Ms Kidman. The issues raised by Mr Lemin were managed by Ms Kidman and Mr Razlog under the direction of Mr Stavrinos. Mr Lemin was not present at the meeting of 4 March 2010. In these circumstances, I am not satisfied on the evidence before me that Mr Lemin knew that the reason the adverse action was taken was because of the complaint Mr Rodriguez made about Mr Teariki.
The misrepresentation claim
I now consider the misrepresentation claim.
Were the representations made?
Because I prefer Mr Teariki’s account of what was said at the meeting of 25 March 2010, I propose to assess whether or not the representations pleaded in the Statement of Claim were made by reference to Mr Teariki’s account of that meeting.
The representation pleaded in paragraph 35(a) of the Statement of Claim, namely, that Mr Teariki had to cease employment under the salary contract and be re-engaged in the same role on hourly wages under the EBA, was conveyed by:
a)Mr Razlog saying words to the effect: “We had a look at your contract and found that your role as a Safety Officer and being on salary doesn’t work out. You can’t perform your role whilst on salary”;[227] and
b)Ms Kidman saying words to the effect: “Now that you’re on a different site there will be a different way of doing things. You will not be able to stay on salary on this project. You’ll have to go back onto wages at the CW5 level as a full-time employee under the EBA in your position as a Safety Officer”.[228]
[227] Teariki affidavit, [51]
[228] Teariki affidavit, [53]
The representation was also conveyed by the statement Ms Kidman says she made at the meeting:[229]
The work you are doing on SA3 is not the same as the work you were doing on EBB. It is construction work and it is covered by the EBA. The contract that you were on at EBB doesn’t apply.
[229] Kidman affidavit, [19]
The representation pleaded in paragraph 35(b) of the Statement of Claim, namely, that Mr Teariki would receive more money when re-engaged solely on wages under the EBA, was conveyed by Mr Razlog saying words to the effect: “You’ll get more money in your pocket now”;[230] by Ms Kidman or Mr Razlog saying words to the effect: “You will get more hours and more money in your pocket”;[231] and by Ms Kidman or Mr Razlog saying words to the effect: “You’ll get more money in your pocket”.[232]
[230] Teariki affidavit, [60]
[231] Teariki affidavit, [53]
[232] Teariki affidavit, [57]
And the representation pleaded in paragraph 35(c), namely, that Mr Teariki had to sign the documents presented to him was conveyed partly orally and partly by conduct. The words are those which were used to convey the representation pleaded in paragraph 35(a) of the Statement of Claim. The conduct was Ms Kidman and Mr Razlog presenting the documents for Mr Teariki to sign and making it known to him that he had no choice but to sign them.
Were the representations made “about” Mr Teariki’s “workplace rights”?
The respondents submit that the representations pleaded in paragraph 35 of the Statement of Claim, if they were made, were not “about” any workplace rights Mr Teariki had.[233] The respondents submit that the only relevant workplace rights were the rights Mr Teariki had under the EBA, but the representations were about the salary contract, not the EBA. I disagree.
[233] Respondents’ “Case Outline”, [2.1]
The representations pleaded in paragraphs 35(a) and (c) of the Statement of Claim were not about the salary contract. They were not representations to the effect that under the salary contract Mr Teariki was required to cease employment or had to resign. What was represented was, in effect, that because of the EBA Mr Teariki had to cease his employment under the salary contract and be governed solely by the terms of the EBA. They were representation about the rights Mr Teariki had under the EBA, not under the salary contract. Stated another way, what was conveyed by the representations was that Mr Teariki had no right to have a contract with terms that differed from those contained in the EBA.
The representation pleaded in paragraph 35(b) was also about Mr Teariki’s rights under the EBA. It was a representation about benefits Mr Teariki would receive under the EBA compared with what he would receive under the salary contract.
Were the representations pleaded in the Statement of Claim at paragraphs 35(a) and (c) false or misleading?
The Director claims that the representations pleaded in paragraphs 35(a) and (c) were false or misleading because there was no legal or other reasons which compelled Mr Teariki to be employed only as a construction worker under the EBA, and the EBA did not require Mr Teariki to continue in his role as safety officer on the SA3 site as a CW5 worker.[234] On the other hand, the respondents submit that the representations were not false or misleading; the salary contract did not apply to Mr Teariki on the SA3 Project because the contract only applied if Mr Teariki was a “full time salaried Safety Officer”, which he was on the EBB site, but which he was not on the SA3 Project site.[235]
[234] Statement of Claim, [38(b)(i) and (ii)]
[235] Respondents’ “Case Outline”, [2.4]-[2.6], [2.33]- [2.34]
I do not accept the respondents’ submission. It assumes that a person who occupied the position of “full time salaried Safety Officer” undertook tasks that were solely or predominantly related to safety; yet that is not reflected in the terms of the salary contract. Nor is it reflected in the evidence. First, even when on the EBB Project, Mr Teariki undertook tasks that did not solely relate to safety. Second, there is the evidence of Mr Lemin which I have set out earlier in these reasons that he “regarded Mr Teariki as someone who was developing his position as safety officer as time was going on within the Baulderstone working environment”, and that was “because Baulderstone had a policy . . . of participated management”.[236]
[236] T199.5-199.10
In my opinion, each of the representations pleaded in paragraphs 35(a) and (c) was false. As I have noted earlier in these reasons, the EBA did not prevent an employee from entering into any contract which contained terms that were different from or even inconsistent with the terms of the EBA.
Was the representation pleaded in the Statement of Claim at paragraph 35(b) false or misleading?
The Director claims that the representation pleaded in paragraph 35(b) of the Statement of Claim was false because the application of the pay rates under the EBA caused Mr Teariki to be worse off financially, and Mr Teariki could only maintain a similar income by having to significantly increase his working hours to the detriment of his family and domestic activities. On the other hand, the respondents submit that Mr Teariki was in fact better off under the EBA than under the salary contract. This submission is based on a detailed comparison between the hours Mr Teariki worked under the salary contract and the hours he worked on wages, and by applying to those hours the respective rates under the salary contract and under the EBA. The evidence was summarised in a table attached to the respondent’s “Further Outline of Submissions”.
The Director accepts the accuracy of the figures set out in the table attached to the respondent’s “Further Outline of Submissions” and that, therefore, at least during the time Mr Teariki worked on the SA3 Project, his average weekly wage on that Project was $2,038.60. That was more than the net salary figure of $1,592.39 or $1,644.13 if a bonus component of $81.74 per week is added. The evidence shows Mr Teariki worked more hours on the EBB Project than on the SA3 Project. From this it may be concluded that the representation pleaded in paragraph 35(b) of the Statement of Claim was not false. That does not necessarily mean, however, that the representation was correct.
The respondents’ comparison of Mr Teariki’s position under the salary contract with the position he was in when being paid wages assumes that Mr Teariki’s only entitlements when he was on salary were those provided by the salary contract. If Mr Teariki was covered by the EBA, however, that assumption would be incorrect. His entitlements would have been those provided for by both the EBA and the salary contract.
Two consequences flow from this observation. First, the $1,592.39 average weekly sum Mr Teariki was paid under the salary contract may not reflect his actual entitlements. What Mr Teariki’s actual entitlements were depends on identifying the hours he worked, applying the rates provided for under the EBA for the hours he worked and, when that calculation is undertaken, determining, in line with the approach discussed in Poletti v Ecob, the extent to which the payments Baulderstone made to Mr Teariki can be treated as having discharged its obligations to Mr Teariki under the EBA.
The second consequence is that if Mr Teariki was covered by the EBA while he was on the salary contract, it is impossible for his position to have been better off after the salary contract was terminated. That is so because Mr Teariki would have been covered by the EBA when the salary contract was on foot. Mr Teariki’s position could only have remained the same or made worse by the termination of the salary contract.
In any event, as the Director did not rely on these considerations as a ground for claiming the representation pleaded in paragraph 35(b) of the Statement of Claim was false or misleading, but relied on a ground which is against the evidence, I do not find that the representation was false or misleading or deceptive.
Were the representations made recklessly?
There is evidence capable of sustaining a finding that Mr Razlog and Ms Kidman made representations to the effect pleaded in paragraph 35 of the Statement of Claim recklessly. I am not prepared, however, to make such a finding. Neither Ms Kidman nor Mr Razlog were cross-examined, or sufficiently cross-examined about whether they believed in the truth of the representations or whether they cared one way or the other whether they were true or false.
Mr Teariki’s loss
Up to the end of the hearing, the Director submitted that the loss Mr Teariki suffered as a consequence of his being required to resign from the salary contract is the difference between the average weekly salary (including bonus) Mr Teariki would have received up to 19 June 2011 with the average wages Mr Teariki actually received up to that date. The average weekly salary (including bonus) the Director assumed Mr Teariki would have earned during that period was calculated on the average weekly salary Mr Teariki earned in the period between 1 July 2009 and 31 March 2010. The Director calculated Mr Teariki’s loss to be just over $4,000.
In a written submission filed after the hearing, however, the Director, by his counsel, accepted the accuracy of the respondents’ analysis in the respondents’ “Further Outline Submissions” and the conclusion that Mr Teariki’s average net income while on wages on the SA3 site was $2,038.60, which is more than the net salary figure per week. The Director submitted, however, that the respondents’ analysis did not take into account the average wages Mr Teariki was paid in the project after the SA3 Project, namely the SA4 Project. The Director submitted that, using the methodology Baulderstone used to calculate Mr Teariki’s wages when employed on the SA3 Project site, he received $268.15 per week less while working on the SA4 Project than he would have received had Mr Teariki remained on salary. The Director claims that Mr Teariki’s loss is the difference between the average salary he earned when on the salary contract and the average wages he was paid for the fifteen weeks he spent on the SA4 project.
In a written submission in response filed on 6 December 2013, the respondents submitted that Mr Teariki’s work on the SA4 Project site should not be considered at all; and even if it were considered, the evidence shows that over the period during which Mr Teariki worked on the SA3 and SA4 Projects, his average weekly wage was $1,883.30, an amount the Director calculated, which was greater than the average weekly salary the Director accepts Mr Teariki earned under the salary contract.
To determine whether Mr Teariki suffered any loss as a consequence of the respondents’ contravention of s.346 or s.345 of the Act, it is necessary to compare the position Mr Teariki would have been in had the contravening conduct not occurred and the position he actually found himself in. Given the evidence of Mr Lemin that he “regarded Mr Teariki as someone who was developing his position as safety officer as time was going on within the Baulderstone working environment”, and that was “because Baulderstone had a policy . . . of participated management”,[237] it is highly probable that, but for the adverse action Baulderstone took against him, Mr Teariki would have remained on the salary contract throughout his work on both the SA3 and SA4 Projects.
[237] T199.5-199.10
The difficulty with the Director’s assessment of Mr Teariki’s loss, however, and the reason I do not accept it, is that the Director does not take into account the wages Mr Teariki earned while on the SA3 Project. As I read the Director’s submissions, he accepts that the average wages paid to Mr Teariki throughout the time he worked on the SA3 and SA4 Projects exceed the average amount Mr Teariki would have received under the salary contract. In those circumstances, I am of the opinion Mr Teariki did not suffer any financial loss.
Conclusions and disposition
My conclusions may be summarised as follows:
a)By Ms Kidman and Mr Razlog requiring Mr Teariki to sign the documents that Ms Kidman and Mr Razlog presented to Mr Teariki at the meeting of 25 March 2010, Baulderstone, in contravention of s.346 of the Act, took adverse action against Mr Teariki for the reason or for reasons that included as a substantial and operative factor Mr Teariki’s not being, or his ceasing to be a member of, the CFMEU.
b)Ms Kidman and Mr Razlog were each “involved” within the meaning of s.550 of the Act in Baulderstone’s contravention of s.346 of the Act, and are each taken to have contravened s.346 of the Act.
c)Mr Lemin was not involved in Baulderstone’s contravention of s.346 of the Act.
d)Although at the meeting of 25 March 2010 Ms Kidman and Mr Razlog made false or misleading representations to Mr Teariki about Mr Teariki’s workplace rights, I am not satisfied they made the representations intentionally or recklessly.
e)Mr Teariki suffered no loss as a consequence of Baulderstone’s or Ms Kidman’s or Mr Razlog’s contraventions of s.346 of the Act.
The only order I propose to make at this stage is to grant the parties liberty to approach my associate to fix a date for the hearing of submissions on penalties and costs.
I certify that the preceding two hundred and eighty-four (284) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis
Associate:
Date: 10 April 2014
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