Dowling v John Fairfax Publications Pty Ltd (No.3)
[2008] FMCA 845
•26 June 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| DOWLING v JOHN FAIRFAX PUBLICATIONS PTY LTD (No.3) | [2008] FMCA 845 |
| INDUSTRIAL LAW – Freedom of association – Pt.16 Workplace Relations Act 1996 – protections under s.793(1) require freedom of association nexus – WorkCover NSW not a “person or body” referred to in s.793(1)(j) – reverse onus of proof under s.809(1) will not operate unless there is an allegation which satisfies the criteria of the provision allegedly contravened. PRACTICE & PROCEDURE – Meaning of “no reasonable prospects of success” – application for leave to amend – amendment would have no reasonable prospects of success – amendment futile – leave refused. |
| Workplace Relations Act 1996, ss.4, 659, 778, 779, 792, 793, 809 Federal Magistrates Act 1999, s.17A Federal Court of Australia Act 1976, s.31A Acts Interpretation Act 1901, s.15AA Conciliation and Arbitration Act 1904 Industrial Relations Act 1988 Workplace Relations Regulations 2006, Ch.2 reg.6.3(2) Federal Magistrates Court Rules 2001, rr.7.01, 13.10 Federal Court Rules, Order 13 r.2.2 |
| Dowling v John Fairfax Publications Pty Limited [2007] FMCA 2104 Commonwealth v Verwayen (1990) 170 CLR 394 |
| Applicant: | SHANE DOWLING |
| Respondent: | JOHN FAIRFAX PUBLICATIONS PTY LIMITED |
| File Number: | SYG 2671 of 2007 |
| Judgment of: | Cameron FM |
| Hearing date: | 5 March 2008 |
| Date of Last Submission: | 5 March 2008 |
| Delivered at: | Sydney |
| Delivered on: | 26 June 2008 |
REPRESENTATION
| The Applicant appeared in person |
| Counsel for the Respondent: | Ms K. Eastman |
| Solicitors for the Respondents: | Freehills |
ORDERS
The motion to amend the application be refused.
Pursuant to r.13.10 of the Federal Magistrates Court Rules 2001 the application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2671 of 2007
| SHANE DOWLING |
Applicant
And
| JOHN FAIRFAX PUBLICATIONS PTY LIMITED |
Respondent
REASONS FOR JUDGMENT
Introduction
These proceedings arise out of the termination by John Fairfax Publications Pty Limited (“Fairfax”) of the employment of the applicant, Shane Dowling, on 9 May 2007. The proceedings were commenced by an application filed in the Federal Court on 29 June 2007 and were subsequently transferred to this Court.
The matter currently before the Court is that aspect of Mr Dowling’s notice of motion filed in the Federal Court on 7 August 2007 seeking leave to amend his application to allege that the termination of his employment was unlawful and in breach of s.792 Workplace Relations Act 1996 (“Act”) because it was for reasons prohibited by s.793(1)(j) and (k) of the Act.
As filed on 29 June 2007, Mr Dowling’s application was based on an allegation that his termination had been unlawful because it was in breach of s.659(2)(e) of the Act. However, by an earlier decision in these proceedings made on 20 December 2007, Dowling v John Fairfax Publications Pty Limited [2007] FMCA 2104, the proceedings were dismissed to the extent that they alleged that Fairfax had breached s.659. The notice of motion which is now before the Court for decision was stood over and was heard on 5 March 2008.
For the reasons which follow, the motion will be refused and the proceedings dismissed generally.
Background facts
The general facts of the matter are set out in my earlier reasons for judgment in this matter at [9] – [13].
The matters especially relevant to this aspect of the proceeding were set out at [36] – [72] and particularly at [37]:
In support of his claim of bullying, intimidation and bastardisation:
a)Mr Dowling points to the second last paragraph of his email to Mr Kirk dated 16 April 2007 where he says:
This is my last attempt to have these issues resolved by the company. If they are not dealt with summarily I will have no choice but to look at other options in dealing with them. (para.2, affidavit sworn 7 August 2007);
b)Mr Dowling says that on 7 May 2007 he walked out of a meeting with Ms Carrington, Ms Fernandes and Luke Osborn saying that he would “be getting WorkCover involved” (para.3, affidavit sworn 7 August 2007);
c) Mr Dowling also says that the following day, after receiving the warning letter, he spoke to Ms Price and said words to the following effect:
They are threatening to sack me and believe [sic] I can take out a court order stopping them from sacking me. I also told Natalie Carrington yesterday that I would be making a complaint to WorkCover but have decided to at least wait until after the meeting with you and Carolyn Bradley tomorrow. (para.4, affidavit sworn 7 August 2007); and
d)Mr Dowling says that he was dismissed in the way he was [on 9 May 2007] because “they did not want to give me time to make a complaint outside the company” (para.5, affidavit sworn 7 August 2007).
Relevant statutory provisions
Section 792(1) of the Act relevantly provides:
An employer must not, for a prohibited reason, or for reasons that include a prohibited reason, do or threaten to do any of the following:
(a) dismiss an employee; …
Section 793(1)(j) and (k) provides:
Conduct referred to in subsection 792(1)… is for a prohibited reason if it is carried out because the employee, independent contractor or other person concerned:
…
(j) has made or proposes to make any inquiry or complaint to a person or body having the capacity under an industrial law to seek:
(i) compliance with that law; or
(ii) the observance of a person’s rights under an industrial instrument; or
(k) has participated in, proposes to participate in or has at any time proposed to participate in a proceeding under an industrial law; …
“Industrial law” is defined in s.779 as follows:
this Act, the Registration and Accountability of Organisations Schedule or a law, however designated, of the Commonwealth or of a State or Territory that regulates the relationships between employers and employees or provides for the prevention or settlement of disputes between employers and employees.
“Industrial instrument” is defined in s.779 of the Act as follows:
an award or agreement, however designated, that:
(a) is made under or recognised by an industrial law; and
(b)concerns the relationship between an employer and the employer’s employees, or provides for the prevention or settlement of a dispute between an employer and the employer’s employees.
“Proceeding” is defined in s.4 of the Act as follows:
“proceeding” includes a proceeding relating to the following:
(a) an award rationalisation process;
(b) an award simplification process.
Considerations on application for leave to amend
The Court’s power to permit the amendment of an application is found in r.7.01 of the Federal Magistrates Court Rules 2001 (“Rules”).
A party may not amend without leave but the rule is silent on the criteria which should be applied.
The principle according to which the power to permit amendments is to be exercised was expressed by the High Court in Clough & Rogers v Frog (1974) 4 ALR 615 at 618 as being found in Cropper v Smith (1884) 26 Ch D 700 per Bowen LJ at 710:
… the object of courts is to decide the rights of the parties, and not to punish them for mistakes they make in the conduct of their cases …. I know of no kind of error or mistake which, if not fraudulent or intended to overreach, the court ought not to correct, if it can be done without injustice to the other party. … as soon as it appears that the way in which a party has framed his case will not lead to a decision of the real matter in controversy, it is as much a matter of right on his part to have it corrected, if it can be done without injustice, as anything else in the case is a matter of right.
That approach was approved in State of Queensland v JL Holdings Pty Limited (1997) 189 CLR 146.
Perhaps the principle can also be expressed in terms of Order 13 r.2.2 of the Federal Court Rules, that a party should be permitted all amendments which are necessary for the purpose of determining the real questions raised by or otherwise depending on the proceeding, or to correct any defect or error in the proceeding or to avoid multiplicity of proceedings.
However, there are qualifications to that principle, including, most relevantly for the purposes of these proceedings, that an amendment should not be allowed if it would be futile. That can be because the claim sought to be ventilated in the proposed amendment is obviously bad in law: Commonwealth v Verwayen (1990) 170 CLR 394 per Dawson J at 456; Plaintiff P1/2003 v Ruddock (2007) 157 FCR 518 per Nicholson J at [12] – [15], or because the allegations in question, had they already been pleaded, would be struck out as not disclosing a cause of action, not disclosing a reasonably arguable basis on which they could succeed, being clearly untenable and other variants of the principles set out in General Steel Industries Inc v Commissioner for Railways (NSW) & Ors (1964) 112 CLR 125 at 129: Cultivaust Pty Limited v Grain Pool of Western Australia [2001] FCA 1812 per Mansfield J at [7]; Global Brand Marketing Inc v Cube Footwear Pty Limited (2005) 66 IPR 19 per Goldberg J at 23 [12].
Those cases pre-date r.13.10 of the Rules and s.17A of the Federal Magistrates Act 1999 and as the Rules are currently drawn, leave ought not be granted if the matter sought to be added has no reasonable prospects of success. This test does not offend against Dawson J’s statement in Verwayen at 456 that it is no ground for refusing an amendment that it raises a claim which ought not to succeed. If an applicant seeks leave to amend to raise a claim that has no reasonable prospects of success then it would be futile to permit it and thus leave ought to be refused.
Reasonable prospects of success
The proper principles to apply to determine whether a claim has reasonable prospects of success were considered at [14] – [24] of my reasons for judgment in these proceedings published on 20 December 2007.
Since publishing those reasons the Full Court of the Federal Court has considered the Federal Court’s equivalent of s.17A of the Federal Magistrates Act, s.31A of the Federal Court of Australia Act 1976, in Jefferson Ford Pty Limited v Ford Motor Company of Australia Limited [2008] FCAFC 60. Their Honours’ decision was discussed by Edmonds J in Spiteri v Nine Network Australia Pty Limited [2008] FCA 905. As his Honour observed, in the Jefferson Ford case Finkelstein and Gordon JJ expressed views which differed from each other and from the views expressed by Rares J in Boston Commercial Services Pty Limited v GE Capital Finance Australasia Pty Limited [2006] FCA 1352, while Rares J noted that the parties to the appeal had accepted that the test to be applied was the test which he had stated in Boston Commercial Services Pty Limited and, as they had not argued the point, concluded that it was neither necessary nor appropriate to examine the issue in that appeal.
In the Spiteri case Edmonds J did not reach an express conclusion regarding which of their Honours’ judgments was to be preferred and I am of the view that in the absence of a clear expression by the Full Court of the Federal Court to the contrary, I should apply the test which was expressed by Rares J in Boston Commercial Services Pty Limited, as approved in subsequent decisions in the Federal Court and as elaborated on by Driver FM in Vivid Entertainment LLC v Digital Sinema Australia Pty Limited [2007] FMCA 157 at [30].
The claims sought to be raised
Conduct in breach of s.793(1)(j)
Mr Dowling alleges that his employment was terminated for a reason prohibited under s.793(1)(j) of the Act, namely that he proposed to make a complaint to the WorkCover Authority of NSW (“WorkCover”) as revealed by the passages from his affidavits quoted at [6] above. The issue to be determined is whether a proposed complaint to WorkCover falls within s.793(1)(j). Fairfax says that it does not, first because a complaint to WorkCover has nothing to do with the freedom of association rights provided by Pt.16 of the Act and thus is not governed by that Part and, secondly, because WorkCover is not:
… a person or body having the capacity under an industrial law to seek:
(i) compliance with that law;
(ii)the observance of a person’s rights under an industrial instrument…
Freedom of association
Section 793 of the Act is found in Pt.16, which deals with freedom of association. In this case, Fairfax correctly observes that Mr Dowling made no reference in his notice of motion or in any of his affidavits, particularly his affidavit sworn 7 August 2007 in support of this motion, to any membership of, or association with, an industrial association or to any conduct of Fairfax which impacted on his freedom of association rights.
Objects of Part 16
In my reasons of 20 December 2007 I queried the extent to which s.778 of the Act, which sets out the objects of Pt.16, could limit a claim under s.793(1)(j) to one involving freedom of association issues. Those queries have been answered in the course of argument on this motion.
Section 778 provides:
778 Objects of Part
In addition to the object set out in section 3, this Part has the following objects:
(a)to ensure that employers, employees and independent contractors are free to become, or not become, members of industrial associations;
(b)to ensure that employers, employees and independent contractors are not discriminated against or victimised because they are, or are not, members or officers of industrial associations;
(c)to provide effective relief to employers, employees and independent contractors who are prevented or inhibited from exercising their rights to freedom of association;
(d)to provide effective remedies to penalise and deter persons who engage in conduct which prevents or inhibits employers, employees or independent contractors from exercising their rights to freedom of association.
“Industrial association” is defined in s.779 of the Act in the following terms:
industrial association means:
(a)an association of employees and/or independent contractors, or an association of employers, that is registered or recognised as such an association (however described) under an industrial law; or
(b)an association of employees and/or independent contractors a principal purpose of which is the protection and promotion of their interests in matters concerning their employment, or their interests as independent contractors, as the case requires; or
(c)an association of employers a principal purpose of which is the protection and promotion of their interests in matters concerning employment and/or independent contractors;
and includes a branch of such an association, and an organisation.
Section 15AA(1) of the Acts Interpretation Act 1901 provides:
15AA Regard to be had to purpose or object of Act
(1)In the interpretation of a provision of an Act, a construction that would promote the purpose or object underlying the Act (whether that purpose or object is expressly stated in the Act or not) shall be preferred to a construction that would not promote that purpose or object.
Section 778 identifies that the object of Pt.16 is to provide protections for employers, employees and independent contractors so that they are free to become or not to become members of industrial associations and can exercise their freedom of association rights. As Kiefel J said in Hadgkiss v Sunland Constructions Pty Limited (2007) 158 FCR 193 at 194 [3]:
One of the principal objects of the WRA is to ensure freedom of association …. Part XA [now Pt.16] of the WRA is concerned with that freedom …
An interpretation of s.793(1)(j) which would encompass an inquiry of or a complaint to a body such as WorkCover, the role of which was discussed in my earlier reasons for judgment in this matter at [51], would not be one which promoted the purpose of Pt.16 of the Act. Indeed, a protection which extended to approaches to a body such as WorkCover would be anomalous in s.793, which is located in a Part which has as its stated objects the matters which s.778 describes and which, as the authorities considered below disclose, is designed to protect a person’s freedom to join an industrial association and to participate in its activities.
Although an interpretation of s.793(1)(j) favourable to Mr Dowling’s proposed claim would not prevent the paragraph also operating in accordance with the objects of the Part, it would nevertheless not be an interpretation which would promote the objects underlying the Part. This conclusion suggests that such an interpretation would be erroneous as the effect of s.15AA of the Acts Interpretation Act and its equivalents in other statutes is that a provision’s purpose is to be taken into account in construing it, not only where it is open to more than one construction, but also in determining whether more than one construction is open: Mills v Meeking (1990) 169 CLR 214 per Dawson J at 235.
Further, as was said in CIC Insurance Limited v Bankstown Football Club Limited (1997) 187 CLR 384:
… the modern approach to statutory interpretation (a) insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and (b) uses “context” in its widest sense to include such things as the existing state of the law and the mischief which, by legitimate means such as those just mentioned, one may discern the statute was intended to remedy … Further, inconvenience or improbability of result may assist the court in preferring to the literal meaning an alternative construction which, by the steps identified above, is reasonably open and more closely conforms to the legislative intent. (per Brennan CJ, Dawson, Toohey and Gummow JJ at 408)
Similarly, in Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355:
The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute The meaning of the provision must be determined “by reference to the language of the instrument viewed as a whole” In Commissioner for Railways (NSW) v Agalianos Dixon CJ pointed out that “the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed”. Thus, the process of construction must always begin by examining the context of the provision that is being construed. (per McHugh, Gummow, Kirby and Hayne JJ at 381)
The construction contended for by Mr Dowling produces an improbable result which does not conform to the general purpose and policy of the section. Consideration of s.793(1)(j) in conformity with the principles cited above leads to the conclusion that only one construction of the paragraph is open. That construction requires that conduct must involve an infringement of a complainant’s rights of freedom of association before it will be classed as prohibited conduct under s.793(1)(j).
As noted earlier in these reasons, Mr Dowling’s proposed claim based on s.793(1)(j) relates to his foreshadowed complaint to WorkCover and contains no freedom of association element. Therefore, the protections provided by the paragraph and s.792 are not engaged. As a result, even were Mr Dowling’s employment found to have been terminated by reason that he proposed to contact WorkCover, such would not be conduct on the part of Fairfax which was prohibited by ss.792 and 793.
Authorities
Fairfax made detailed submissions on the applicability to these proceedings of the decision of the Full Court of the Federal Court in Davids Distribution Pty Limited v National Union of Workers (1999) 91 FCR 463 which considered ss.298K and 298L of the Act in its previous form. The current ss.792 and 793 are relevantly identical to the former ss.298K and 298L. The Full Court considered the operation of those previous sections in the following terms:
Section 298K forbids an employer from dismissing an employee for a prohibited reason or for reasons that include a prohibited reason. The prohibited reasons are contained in s.298L. Each of the reasons relates to the exercise of the right of an employee or independent contractor to join, or refuse to join, an “industrial association” (as defined) and, where the employee becomes a member of an industrial association, to take collective action by or through the industrial association in pursuit of their industrial interests. Section 298L(1)(l) is concerned to ensure that an employee who is dissatisfied with his or her industrial conditions is not discouraged from participation in concerted action engaged in by the industrial association of which the employee is a member and which is seeking better industrial conditions. The objective of s.298K is to ensure the threat of dismissal or discriminatory treatment cannot be used by an employer to destroy or frustrate an employee's right to join an industrial association and to take an active role in that association to promote the industrial interests of both the employee and association. (per Wilcox and Cooper JJ at 500 [106])
It should also be noted that the view taken by Wilcox and Cooper JJ in the Davids Distribution case regarding the common thread running through all the prohibited reasons in s.793(1) was reflected in comments by Kenny J in Australian Workers’ Union v BHP Iron-Ore Pty Limited (2000) 106 FCR 482 at 502 [66] where her Honour said:
Section 298L(1) (which describes what is a prohibited reason for s.298K(1) purposes) consists of 14 detailed paragraphs and a number of subparagraphs designed to protect an employee’s freedom to join a union and to participate in union activities in a number of disparate situations.
In National Union of Workers v Qenos Pty Limited (2001) 108 FCR 90 at 99 [47] when speaking of s.298K (now s.792) Weinberg J also said:
It has been suggested that the legislative history of these provisions, which broadly speaking are designed to protect members of trade unions from discrimination by their employers, extends back to a time when those organisations were more fragile institutions than they are today …
His Honour also noted at 119 [125] that in 1987 the Conciliation and Arbitration Act 1904 contained a provision expressed in terms similar to s.793(1)(a) prohibiting an employer from dismissing an employee “by reason merely of the fact that the employee is an officer or member of an organisation or is entitled to the benefit of an industrial agreement or award”. His Honour noted that, at that time, the Act contained no provisions equivalent to s.793(1)(b) – (o) saying:
That suggests that s.9 [of the Conciliation and Arbitration Act], as originally drafted, was intended to encompass at least some of the matters subsequently introduced by s.298L(1)(b)-(n) [now s.793(1)(b)–(o)]. It may be that these additional prohibited reasons were added as a matter of emphasis or clarification rather than because of any perceived restriction or limitation on the scope of the forerunner to s.298L(1)(a) [now s.793(1)(a)].
Fairfax
’s written submissions also drew attention to the development of ss.298K and 298L of the pre-reform Act to become ss.792 and 793. Consideration of the sections and their history indicate that there has been no amendment which would suggest that the Davids Distribution decision is any less relevant to ss.792 and 793 than it was to ss.298K and 298L. Such a conclusion is reinforced by the explanatory memorandum to the Workplace Relations Amendment (Work Choices) Bill 2005, as introduced in the House of Representatives on
2 November 2005. What is now s.793 was proposed by that Bill to be inserted into the Act as s.254. After being inserted as s.254 the section was renumbered as s.793. Relevantly, the explanatory memorandum says:
New section 254 – Prohibited Reasons
[2568] Subsection 254(1) would list matters, each of which would constitute a prohibited reason if it motivates conduct referred to in subsections 253(1) or (4). The list of prohibited reasons is substantially based on the existing prohibitions in pre-reform section 298L of the WR Act. The paragraphs detailing the prohibited reasons would be alternative.
As s.298L, s.793 was originally inserted into the Act in 1996 in part re-enacting earlier provisions and in part inserting new provisions including s.793(1)(j) which was then called s.298L(1)(i). In the explanatory memorandum (House of Representatives) to the Workplace Relations and Other Legislation Amendment Bill 1996 the new ss.298L and.298K (now s.792) were explained as follows:
New section 298K – Dismissal etc of members of industrial associations etc
16.21 Section 298K prohibits an employer from doing, or threatening to do, for a “prohibited reason”, or for reasons that include a prohibited reason, any of the actions set out in subsections (1) and (2). These are, broadly, actions which harm persons who are employees in relation to their employment, or harm independent contractors in relation to their provision of services.
16.22 In general terms, the prohibited reasons (which are set out in new section 298L) go to an employee’s membership or non-membership of an industrial association.
New section 298L – Prohibited reasons
16.23 Proposed section 298L contains a list of matters, each of which constitutes a ‘prohibited reason’ in relation to the conduct referred to in subsections 298K(1) and (2). To a substantial extent, the list of prohibited reasons is based on the various prohibitions in section 334 of the IR Act.
16.24 However, consistent with the proposed application of Part XA to employers, employees and independent contractors whose terms and conditions of employment are regulated by State or federal industrial bodies, in accordance with State or Federal industrial laws, the paragraphs in section 298L are expressed to have a wider operation. The paragraphs detailing the prohibited reasons are disjunctive.
While Davids Distribution considered s.793 as a whole, in Australian Meat Industry Employees’ Union v Belandra Pty Limited (2003) 126 IR 165, North J discussed what is now s.793(1)(j) in some detail. His Honour said:
… the history of the Act in general, and s.298L(1) and its predecessors in particular, suggests that the activities dealt with in s.298L(1)(f), (g), (i) and (n) were already encompassed within s.298L(1)(a). As previously explained, the history of s.298L(1)(a) shows that it was intended to apply to conduct taken against an employee because the employee engaged in activities as a union member, and to conduct taken against an employee because of the activities of a union taken as an incident of the person’s membership. Section 298L(1)(f) and (g) concern the institution by, and participation in, secret ballots by union members. That activity is defined by reference to the status of a person as a union member. Hence, the activity would fall within s.298L(1)(a). Section 298L(1)(i) also includes action taken by a union member in that capacity. Where a member engages the industrial law, that person's conduct will in some circumstances be properly characterised as an activity of the person taken as a member of the union. That action would also fall within s.298L(1)(a) … (at 204 – 255 [137])
His Honour continued at 206 – 207:
[144]Section 298L(1)(i) concerns conduct taken against an employee for seeking the enforcement of an industrial law. A similar provision, but limited to conduct constituted by the dismissal of an employee, was first introduced in the 1993 Act as s.170DF(1)(e) as follows:
“170DF(1) An employer must not terminate an employee's employment for any one or more of the following reasons, or for reasons including any one or more of the following reasons:
…
(e) the filing of a complaint, or the participation in proceedings, against an employer involving alleged violation of laws or regulations or recourse to competent administrative authorities;”
[145] The section was included in Div 3 which relates to termination of employment. As noted above, one object of Div 3 was to give effect to the Termination of Employment Convention (see Sch 10 of the Act). Section 170DF(1)(e) adopted the wording of Art 5(c) of the Termination of Employment Convention and was part of a group of sections designed to reflect the rights recognised by that Convention. To the extent that s.170DF(1)(e) encompasses resort by union members to industrial laws, or by unions on behalf of members, it duplicates part of the subject matter at s.298L(1)(a).
[146] In the 1996 amendments, the terms of s.170DF(1)(e) were re-enacted in the 1996 Act as s.170CK(2)(e), and s.298L(1)(i) was introduced. The reason for the introduction of s.298L(l)(i) is not explained by the parliamentary materials. It duplicates the essence of much of s.170CK(2)(e) in relation to the dismissal of an employee. The new provision, however, extends the protection from termination to also include the other conduct referred to in s.298K(1)(b) to (e). Given the similarity of the subject matter of ss.298L(1)(i) and 170CK(2)(e), it is reasonable to conclude that s.298L(1)(i) also originated from the same source, namely, the Termination of Employment Convention. In this respect, s.298L(1)(i) differed from the other subsections of s.298L(1). The distinct source of s.298L(1)(i) explains why s.298L(1)(i) was introduced into s.298L, even though it duplicated part of s.298L(1)(a). A further reason was that although s.298L(1)(a) encompasses the protection referred to in s.298L(1)(i), it is limited in operation to union members whereas the protection referred to in s.298L(1)(i) applies to all employees. It was a convenient drafting approach to express s.298L(1)(i) in terms which included union members, but went beyond that group.
It can therefore be accepted that s.793(1)(j), formerly s.298L(1)(i), was introduced to implement Australia’s obligations under the Termination of Employment Convention. More generally the implementation of that obligation is enacted in s.659(2)(e), formerly s.170CK(2)(e) and prior to that s.170DF(1)(e), of the Industrial Relations Act 1988. As a result, s.793(1)(j) should be understood to be an enactment of the rights found in s.659(2)(e) but in the context of freedom of association, with the relevant rights in circumstances other than those involving freedom of association being provided by s.659(2)(e). For these reasons also, it should be concluded that in order for conduct to be prohibited by s.793(1)(j) it must involve an infringement of a complainant’s freedom of association rights.
The Davids Distribution case considered the law as it applied in 1998. The Act was relevantly identical for the purposes of the Belandra decision. Amendments to the Act since then have amended the objects of the Part by adding what are now s.778(c) and (d) to the provisions of what was, in 1998 and 2001, s.298A. That amendment of the section does not affect the importance of the Davids Distribution case to this case or diminish the relevance of its conclusion concerning the meaning and purpose of s.793(1). If anything, the addition of s.778(c) and (d) reinforce that relevance and the binding nature of the Davids Distribution case on me in these proceedings.
Consequently, as Mr Dowling makes no allegation that the conduct he complains of involved an infringement of his freedom of association rights, the protections provided by s.793(1)(j) would not apply to the termination of his employment were his proposed amendment permitted and his factual allegations made out.
WorkCover not a “person or body” under s.793(1)(j)
The conclusion that in order for conduct to be prohibited by s.793(1)(j) it must involve an infringement of a complainant’s freedom of association rights also implies that the “person or body” referred in the paragraph is an industrial association or a person associated with an industrial association, in conformity with s.778 which relevantly to this question provides that the Part has, as two of its objects:
(c)to provide effective relief to employers, employees and independent contractors who are prevented or inhibited from exercising their rights to freedom of association;
(d)to provide effective remedies to penalise and deter persons who engage in conduct which prevents or inhibits employers, employees or independent contractors from exercising their rights to freedom of association.
Were the “person or body” to be a body such as WorkCover the paragraph would not speak in terms of it “having the power under an industrial law to seek” compliance with an industrial law or observance of an industrial instrument but would speak in terms of requiring or enforcing compliance (cf. Ch.2 reg.6.3(2) Workplace Relations Regulations 2006). The word “seek” reflects the role of an industrial association in the representation of its members’ rights and interests. Such a construction conforms to the overall purpose of Pt.16 as a Part dealing with freedom of association. The conclusion that the “person or body” referred to in s.793(1)(j) is an industrial association or an associated individual leads to the further conclusion that even if the role of WorkCover were to “seek” rather than to require or enforce compliance with an industrial law, the fact that it is not an industrial association means that it cannot be a “person or body” of the sort contemplated by s.793(1)(j).
Consequently, for this reason also, were Mr Dowling’s employment to have been terminated by reason that he proposed to contact WorkCover, that would not be conduct prohibited by s.793(1)(j).
Conduct in breach of s.793(1)(k)
For the reasons expressed in paragraph [66] – [69] of my reasons for judgment published on 20 December 2007, this claim has no reasonable prospects of success because the contents of Mr Dowling’s affidavits do not meet the factual criteria of the paragraph.
Mr Dowling’s statement that he believed he could “take out a court order stopping them from sacking me” but would be making a complaint to WorkCover, even if proved does not amount to a proposal to participate in a proceeding under an industrial law. Foreshadowing a complaint to WorkCover is not a proposal to participate in a proceeding of any sort and Mr Dowling’s stated belief that he could “take out a court order” was not the announcement of an intention to seek one.
In order for Mr Dowling’s dismissal to amount to conduct for a reason prohibited by s.793(1)(k) he would have needed to have said more than he says he did.
Reverse onus of proof
The reverse onus of proof provided by s.809(1) will not operate unless there is an allegation of conduct which satisfies the criteria set out in s.793(1)(j) or (k): Zhang v Royal Australian Chemical Institute Inc (2005) 144 FCR 347 per Lander J at 352 [33]; Davids Distribution at 501 [109] per Wilcox and Cooper JJ.
In relation to that aspect of the proposed amendment which relies on s.793(1)(j), no allegation of conduct meeting the criteria of the paragraph is made. For the reasons already given, the alleged foreshadowing by Mr Dowling of a complaint to WorkCover is not conduct of the sort referred to in that paragraph. That being so, this aspect of his proposed amendment does not engage the operation of s.809(1).
Similarly, in relation to Mr Dowling’s proposed claim based on s.793(1)(k), no facts have been propounded which meet the criteria of that paragraph.
As expressed in the reasons published on 20 December 2007 at [72], Mr Dowling had many opportunities to file affidavits containing evidence which addressed the submissions made by Fairfax concerning the difficulties in his case. Subsequently, he had additional time and still did not file affidavits addressing those issues. The fact that he has not filed further evidence leads inevitably to the conclusion either that there is no such evidence or that Mr Dowling is content to rely on the material contained in his affidavits already filed. Whichever that be, the result remains that the material which has been filed contains nothing which suggests a real issue to be tried in respect of s.793(1)(j) or (k).
Consequently, the statutory presumption found in s.809(1) would not be enlivened even were leave to amend to be granted.
No reasonable prospects of success
For the forgoing reasons, the claims sought to be pressed by
Mr Dowling by way of amendment to his application have no reasonable prospects of success.
Conclusion
As the proposed amendments have no reasonable prospects of success, it would be futile to grant leave to amend the application in the manner sought.
Consequently, the motion for leave to amend will be refused.
As leave to amend will be refused and on 20 December 2007 the proceedings were dismissed to the extent of the only ground which was contained in the application, the order must be that the proceedings be dismissed generally pursuant to r.13.10 of the Rules.
I certify that the preceding fifty-five (55) paragraphs are a true copy of the reasons for judgment of Cameron FM
Associate:
Date: 26 June 2008
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