Fotiou v Nationwide News Pty Ltd
[2014] FCCA 269
•21 February 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| FOTIOU v NATIONWIDE NEWS PTY LTD & ANOR | [2014] FCCA 269 |
| Catchwords: CONSUMER PROTECTION – Alleged misrepresentations as to terms and conditions of employment upon the transfer of a business. |
| Legislation: Competition and Consumer Act 2010 (Cth), s.31 |
| Byrne & Frew v Australian Airlines (1995) 185 CLR 410 Josephson v Walker (1914) 18 CLR 691 McRae v Watson Wyatt Australia Pty Ltd [2008] FMCA 1568 Robertson v Knott Investments Pty Ltd [2010] FCA 1074 |
| Applicant: | JOHN FOTIOU |
| First Respondent: | NATIONWIDE NEWS PTY LTD |
Second Respondent: | COURIER NEWSPAPER MANAGEMENT HOLDINGS PTY LTD |
| File Number: | SYG 2501 of 2012 |
| Judgment of: | Judge Driver |
| Hearing date: | 17 September 2013 |
| Date of Last Submission: | 17 January 2014 |
| Delivered at: | Sydney |
| Delivered on: | 21 February 2014 |
REPRESENTATION
| Counsel for Mr Fotiou: | Mr C Bolger |
| Solicitors for Mr Fotiou: | David Landa Stewart Lawyers |
| Counsel for the Respondents: | Mr M Easton |
| Solicitors for the Respondents: | Hunt & Hunt |
ORDERS
The amended application filed on 30 August 2013 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2501 of 2012
| JOHN FOTIOU |
Applicant
And
| NATIONWIDE NEWS PTY LTD |
First Respondent
| COURIER NEWSPAPER MANAGEMENT HOLDINGS PTY LTD |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
By application filed on 1 November 2012 (amended on 30 August 2013), the applicant (Mr Fotiou) claims compensation or damages from the respondents, breach of contract and/or for breach or contravention of either s.53B of the Trade Practices Act 1974 (Cth) (Trade Practices Act) or s.31 of Schedule 2 to the Competition and Consumer Act 2010 (Cth) (the Australian consumer law).
I referred the matter for mediation but it did not resolve.
Mr Fotiou was made redundant from his employment with the first respondent (Nationwide) in August 2012. He was paid redundancy entitlements on that termination taking into account his service of almost 18 years. Mr Fotiou claims an entitlement to higher redundancy payments based upon the redundancy scale in an enterprise agreement made in 2005[1]. That agreement was made by a predecessor employer, Federal Publishing Co (FPC) and its employees[2].
[1] the Hannanprint NSW Pty Ltd, Hannanprint Victoria Pty Ltd, Craft Printing Pty Limited, FPC Courier (Production and Circulation Alexandria) and FPC Power (Production Alexandria) Enterprise Agreement (2005 Enterprise Agreement)
[2] there were numerous other employees and some other employers who were also party to the 2005 Enterprise Agreement
The 2005 Enterprise Agreement provided that on the termination of employment on the grounds of redundancy an employee was entitled to, among other things:
a)a severance payment of four weeks per year of service, calculated on an ordinary week’s wages that includes shift allowance;
b)payment in lieu of notice of four weeks wages, calculated on total remuneration that includes base wage, shift allowance and car/ travel allowance;
c)accrued annual leave with leave loading;
d)long service leave; and
e)payment for untaken sick leave.
Nationwide paid Mr Fotiou on termination of his employment:
a)a severance payment of 44 weeks inclusive of notice; and
b)accrued annual leave; and
c)long service leave
Agreed facts
The parties have agreed upon the following statement of facts:
The Parties
Nationwide is and was at all relevant times, incorporated under the Corporations Act 2001 (Cth) and owned and operated a business that produced non-daily and regional daily newspapers from 170 Bourke Road, Alexandria in the state of New South Wales.
Courier Newspapers is and was at all relevant times, incorporated under the Corporations Act 2001 (Cth) and from in or about 22 March 2007 to 30 August 2010 operated a business that produced non-daily and regional daily newspapers from 170 Bourke Road, Alexandria in the state of New South Wales.
Mr Fotiou, from 26 March 2006 was an employee within the meaning of section 5 of the Workplace Relations Act 1996 (Cth) (the WR Act).
Mr Fotiou, from 1 July 2009 was an employee within the meaning of section 4 of the Fair Work Act (Cth) (the FW Act).
Nationwide and Courier Newspapers were employers within the meaning of section 6(1) of the WR Act and, from 1 July 2009, national system employers within the meaning of section 14 of the FW Act.
Nationwide and Second Respondent are constitutional corporations within the meaning of section 4 of the WR Act and, from 1 July 2009, and constitutional corporations within the meaning of section 12 of the FW Act.
Nationwide and Second Respondent were at all material times involved in trade and commerce within the meaning of the Trade Practices Act 1974 (Cth) (the TPA) and Schedule 2 of the Competition & Consumer Act 2010 (Cth) Australian Consumer Law (the ACL).
At all relevant times the First and Second Respondents were wholly owned subsidiaries of News Corporation.
The employment history
On or about 15 August 1994 Mr Fotiou commenced employment with Eastern Suburbs Newspapers (a partnership of General Newspapers Pty Ltd, Double Bay Newspapers Pty Ltd and Brehmer Fairfax Pty Ltd).
On or about August 2001 Federal Publishing Company Pty Ltd t/as FPC Courier (“FPC Courier”) became a part of Eastern Suburbs Newspapers.
On or about 24 November 2003 the Australian Industrial Relations Commission certified the Hannanprint NSW Pty Ltd, Hannanprint Victoria Pty Ltd, Craft Printing Pty Limited, FPC Courier (Production & Circulation Alexandria) and FPC Power (Production Alexandria) Enterprise Agreement 2003 (“the 2003 Enterprise Agreement”). FPC Courier was an employer respondent to the 2003 Enterprise Agreement.
On or about 18 July 2005 Mr Fotiou was promoted to Area Circulation Manager and received an increase in his base salary of over 40%.
On or about 20 December 2005 the Australian Industrial Relations Commission certified the Hannanprint NSW Pty Ltd, Hannanprint Victoria Pty Ltd, Craft Printing Pty Limited, FPC Courier (Production & Circulation Alexandria) and FPC Power (Production Alexandria) Enterprise Agreement 2005 (“the 2005 Enterprise Agreement”).
On or about March 2007 Courier Newspapers became the successor, transmittee or assignee of the whole or part of the business of FPC Courier (“the Transmission”).
On or about 22 March 2007 Courier Newspapers conducted a meeting with the Circulation Band employees of FPC Courier during which the transfer of the business from FPC Courier to Courier Newspapers was discussed.
On or about 22 March 2007, Courier Newspapers offered Mr Fotiou employment, expressed to be subject to completion of the Transmission.
On or about 22 March 2007 Courier Newspapers gave to Mr Fotiou a written offer of employment that included a contract of employment/letter of appointment dated 22 March 2007 (“the First Letter”) and an enclosing document entitled “Document 2 – Standard Terms” (“the Terms”).
On or about 28 March 2007 Mr Fotiou accepted the offer of employment and signed the First Letter and the Terms.
Mr Fotiou was a “transferring employee” for the purposes of Clause 5 of Schedule 9 of the Workplace Relations Act 1996 (Cth) (“WR Act”).
By operation of clause 10(4)(d) of Schedule 9 of the WR Act, Courier Newspapers ceased to be bound by the 2005 Enterprise Agreement on or about 22 March 2008.
A letter dated 6 August 2010 from Tim Hayes, Human Resource Manager of Nationwide was sent to Mr Fotiou informing him that his employment would be transferred on 30 August 2010 from Courier Newspapers to Nationwide (“the Second Letter”).
Nationwide informed Mr Fotiou that his employment benefits would not be changed or affected by the changed identity of his employer and the transfer of his employment.
The transfer of the employment from Courier Newspapers to Nationwide was:
(a)between companies that were wholly owned subsidiaries of News Corporation; and
(b)undertaken for administrative purposes.
Nationwide did not provide Mr Fotiou with a new or further written contract of employment.
On or about 30 August 2010 Mr Fotiou's employment was transferred to Nationwide pursuant to the offer made in the Second Letter.
Termination of Employment
Nationwide was Mr Fotiou’s employer on 13 August 2012 and for the purpose of determining Mr Fotiou's entitlements on termination, including severance payments, Nationwide had employed Mr Fotiou continuously from 15 August 1994 to 13 August 2012.
On 13 August 2012, Nationwide terminated Mr Fotiou's employment on the grounds of redundancy.
Nationwide paid Mr Fotiou on termination of his employment:
(a)a severance payment of 44 weeks inclusive of notice;
(b)accrued annual leave;
(c)long service leave.
Nationwide did not pay severance payments to Mr Fotiou by reference to the 2005 Enterprise Agreement.
Mr Fotiou’s entitlements to payments if terminated on the grounds of redundancy if calculated under the 2005 Enterprise Agreement were:
(a)Severance payment (17 yrs 11 mths x 4 = 71.666664 weeks) at ordinary week’s wages ($1,562.48) $111,977.72
(b)Payment in lieu of notice (5 weeks) per cl 4.2.1(b) of the Award and cl 13.1(b) of the Standard Terms attached to the letter dated 22 March 2007 on total remuneration ($1,831.71) $9,158.55
(c)Annual leave (8.926 weeks)$17,455.34
(d)Long Service Leave (12.53 weeks)$20,853.78
(e)Accrued untaken sick leave To be advised
Total $159,445.39 plus accrued sick leave
Mr Fotiou was paid $100,641.17 (gross) in respect of the entitlements identified [above].
The Difference between the calculation of Mr Fotiou’s entitlements under the 2005 Agreement and what he was paid on termination is $ 58,804.22 (gross), plus untaken sick leave.
Issues in dispute
The parties are in dispute as to whether the 2005 Enterprise Agreement applied to Mr Fotiou’s employment at the time of his termination in 2012. The respondents contend that Mr Fotiou was promoted outside the coverage of the 2005 Enterprise Agreement and that, even if Mr Fotiou was covered by the 2005 Enterprise Agreement following his promotion, the 2005 Enterprise Agreement ceased to apply 12 months after the transition of business between FPC and the second respondent (Courier Newspapers) in 2007. The parties are also in dispute about whether the terms of the 2005 Enterprise Agreement became terms of the contract of employment between Mr Fotiou and Nationwide. Finally, the parties are in dispute over whether false or misleading representations were made to Mr Fotiou either in 2007 (when his employment transferred to Courier Newspapers) or in 2010 when his employment transferred to Nationwide.
The pleadings and evidence
Mr Fotiou relies upon his amended application filed on 30 August 2013, his second amended statement of claim filed on 28 June 2013 and the affidavits of Mr Fotiou (made on 25 March 2013 and 30 May 2013), Debra Fotiou (made on 30 May 2013) and Hakan Sevgin made on 5 June 2013. I also gave leave for Mr Fotiou to rely upon oral evidence led from Marc Bouza, Clancy Marion and Sue Fowler who had been subpoenaed to give evidence.
The respondents rely upon their defences filed on 19 August 2013 and the affidavits of Andrew Bioccha made on 3 May 2013 and Tim Hayes made on the same day.
I also received the following exhibit:
·A1 – letter from Cumberland Newspapers to Mr Sevgin, 01.05.2007.
Both parties made oral and written submissions, including post hearing submissions.
Issues for determination
The core issues for determination by the Court are:
a)Did Mr Fotiou’s duties after his promotion in July 2005 take him out of the coverage of the Graphic Arts – General - Award 2000 (2000 Award) and therefore the coverage of the 2005 Enterprise Agreement?
b)Did the terms of the 2005 Enterprise Agreement form part of the contractual terms between Courier Newspapers and Mr Fotiou?
c)Did the terms of the 2005 Enterprise Agreement form part of the contractual terms between Nationwide and Mr Fotiou?
d)Can Mr Fotiou recover in contract against Nationwide? If so, what consequential orders arise for Courier Newspapers?
e)Did Courier Newspapers make representations to Mr Fotiou in 2007 as alleged?
f)Did Nationwide make representations to Mr Fotiou in 2010 as alleged?
g)Has Mr Fotiou made out the other elements of his consumer protection claim against either respondent?
Consideration
Employment History
Between 2004 and 2012 Mr Fotiou was relevantly employed by three corporations:
a)Mr Fotiou was initially employed by FPC;
b)in 2007 the relevant part of FPC’s business was transmitted to Courier Newspapers and Mr Fotiou was employed by Courier Newspapers; and
c)in 2010 Mr Fotiou’s employment was transferred to Nationwide Pty Ltd (Nationwide).
The respondents contend that FPC promoted Mr Fotiou to a position where his employment was no longer covered by any awards or enterprise agreements. Mr Fotiou’s salary increased by more than 40 per cent at this time and his duties allegedly changed substantially.
Courier Newspapers was the transmittee of FPC’s business and employed Mr Fotiou pursuant to a written contract of employment. The respondents claim the express contractual terms between Courier Newspapers and Mr Fotiou excluded the terms of any industrial instruments.
Mr Fotiou’s employment was transferred to Nationwide in 2010 and the contractual terms between him and Courier Newspapers continued as between Mr Fotiou and Nationwide.
Though Nationwide had not continuously employed Mr Fotiou for the whole period, at law for the purposes of calculating termination entitlements it is as if Mr Fotiou had been continuously employed by Nationwide for that time.
Application of the 2005 Enterprise Agreement
There is a dispute as to whether the 2005 Enterprise Agreement ever applied to Mr Fotiou.
Coverage of the Enterprise Agreement
Coverage of the 2005 Enterprise Agreement is relevantly limited to FPC’s circulation employees “who have their work provisions and classifications set out in the Graphic Arts – General - Award 2000”[3].
[3]2005 FPC Agreement, clause 3
The Australian Industrial Relations Commission certified the 2005 Enterprise Agreement on 20 December 2005. By that date Mr Fotiou was employed as an Area Circulation Manager.
Work performed by Mr Fotiou
Mr Fotiou’s duties and responsibilities included, but were not limited to:
a)receiving and distributing newspaper products;
b)checking newspaper products before despatch for quantity, type and size;
c)keeping records;
d)operating a forklift and machinery;
e)despatching and delivering newspaper products;
f)supervising staff, including drivers and walkers; and
g)collecting and filling orders for newspaper products.
The 2000 Award applied in the broadly defined “printing industry”[4] and to employees in this industry “only if their work is covered by this award”[5].
[4]Graphic Arts - General - Award 2000, clause 1.6.1
[5]Clause 1.8.7:
Mr Fotiou was initially employed as a "Circulation Supervisor" which the respondents concede may well have been covered by the 2000 Award. That concession was properly made as Mr Fotiou’s duties, in my view, fell within the purview of clause 1.4.14(k) of the 2000 Award.
The respondents contend that Mr Fotiou’s promotion to the position of “Area Circulation Manager” effective 18 July 2005 took him outside of the coverage of the 2000 Award. In that regard, they place stress upon Mr Fotiou’s change in title and increase in salary. Those factors are not, in my view, persuasive. I find that following his promotion, Mr Fotiou continued to be covered by the 2000 Award for the following reasons:
a)Mr Fotiou gave evidence, which I accept, that he continued to perform the duties which brought him within the 2000 Award coverage;
b)the addition of a management role did not of itself exclude the application of the Award;
c)the making of over award payments of salary does not exclude the application of the Award;
d)FPC represented to Mr Fotiou at the time of his promotion that, save for the change in title and increase in salary, all other terms and conditions of employment remained the same; and
e)FPC continued to pay award entitlements to Mr Fotiou and, when the 2005 Agreement was made, FPC paid Mr Fotiou benefits in accordance with that Agreement, specifically shift allowance, penalty rates and overtime.
I find that Mr Fotiou was covered by the 2005 Enterprise Agreement from December 2005.
The transmission of the Enterprise Agreement
On or about 22 March 2007 FPC’s business was transmitted to Courier Newspapers. Mr Fotiou and other employees of FPC became employees of Courier Newspapers.
Mr Fotiou concedes that, by operation of clause 10(4)(d) of Schedule 9 of the Workplace Relations Act 1996 (Cth) (Workplace Relations Act), Courier Newspapers ceased to be bound by the 2005 Enterprise Agreement one year after the transmission of business.
The consequential effect at law is that any entitlement arising from the 2005 Enterprise Agreement is not enforceable pursuant to that industrial instrument.
Contractual terms
Mr Fotiou contends that after the transmission of the business in 2007 he continued to enjoy the benefits of the 2005 Enterprise Agreement pursuant to his contract of employment and that, by reason of that contract, the benefits did not cease after 12 months.
2007 Written Contract
The Contract of Employment contained in the Letter of Appointment dated 22 March 2007 (Written Contract) between Courier Newspapers and Mr Fotiou, at [3], included the words:
If you are covered by an Industrial Instrument, that Industrial Instrument does not form part of your contract of employment however it will continue to apply to you as a matter of law. Where that Industrial Instrument entitles you to [certain identified benefits] you will continue to receive these benefits in accordance with the Industrial Instrument. (emphasis added)
The Standard Terms
A second document entitled “Document 2 – Standard Terms” was provided to Mr Fotiou in March 2007 and was attached to the Written Contract[6] (Standard Terms).
[6]Affidavit of Fotiou, Annexure F
The standard terms contained the following terms:
5.1 Your employment with FPC may be regulated by an industrial instrument.
5.2 Whether or not your employment is regulated by an industrial instrument depends on the nature of work you perform and the specific terms of the industrial instrument. If an industrial instrument applies to you at FPC, this industrial agreement will continue to you (sic) as a matter of law at the Company and does not form part of your Contract of Employment with the Company.
5.3 If an industrial instrument applies to you at FPC, the Company will continue to apply the industrial instrument to you until it is replaced by a further industrial instrument or alternative agreement between the relevant parties to the industrial instrument or agreement, in writing.
....
17 Entire Agreement
If you are covered by an industrial instrument, this industrial instrument will apply to you as a matter of law and will not form part of this contract of employment. To the extend (sic) of any inconsistency, the terms of any industrial instrument that applies to you will override the terms contained in the Cover Letter of Employment and these Standard Terms. (emphasis added)
The Standard Terms also included an entire agreement clause[7] in wider terms than the clause reproduced above.
[7]Clause 17
Mr Fotiou’s contract claim relies on clauses 5.2 and 5.3 of the Standard Terms and on the basis that the contract protected him from the operation of the cessation provision by the Workplace Relations Act[8].
[8] second amended statement of claim, [6(ab)], and letter in response to the respondents’ request for further and better particulars, 11 September 2013 –[1], [2], [3]
The respondents contend that Mr Fotiou’s interpretation is inconsistent with the express terms in the contract, particularly the three provisions cited above, and the court should not interpret the provision in such a way that it is not harmonious with the other provisions of the contract.
The express terms in the above clauses in the contract state that any terms of an industrial instrument (whether currently or previously applying) do not form part of the contract of employment. In my view, the contractual terms are unambiguous. The contract specified that any applicable industrial instruments would continue to apply in accordance with their own terms (and any applicable law extraneous to the contract) and not as part of the contract.
The second amended statement of claim alleges that the 2005 Enterprise Agreement continued to apply “as a matter of law” to Mr Fotiou’s employment. However:
a)Mr Fotiou concedes that there is no statutory obligation that requires compliance with the 2005 Enterprise Agreement[9];
b)Mr Fotiou does not (nor could not) allege that the terms of the 2005 Enterprise Agreement were terms of the contract by implication[10];
c)on the face of the Written Contract and the Standard Terms any industrial instrument that might apply or might have applied do not form part of the contract and therefore there is no contractual obligation that requires compliance with the 2005 Enterprise Agreement; and
d)no other legal basis by which the 2005 Agreement is enforceable against Nationwide has been identified.
[9] Agreed Statement of Facts [20]. See also Josephson v Walker (1914) 18 CLR 691 at 700 per Issac J:
[10] See Byrne & Frewv Australian Airlines (1995) 185 CLR 410 at 446 per McHugh and Gummow JJ, [1995] HCA 24:
In context clause 5.3 does not create or contain a contractual right. The other clauses cited above refer to industrial instruments applying “at law” in clear contradistinction to industrial instruments applying as contractual terms.
I find that the claim in contract fails.
Misleading and Deceptive Conduct
Mr Fotiou alleges a contravention of the Trade Practices Act and/or the Australian consumer law.
General Principles
To establish this contravention Mr Fotiou must prove the following:
a)that the representations were made;
b)that the representations were misleading;
c)that (subject to the deeming provisions of s.4) if the representations are of a future matter the corporation did not have reasonable grounds for making them;
d)that Mr Fotiou relied upon the representations; and
e)that Mr Fotiou suffered loss or damage because the representations were misleading.
I adopt Flick J’s summary of case principles in Robertson v Knott Investments Pty Ltd[11]:
[11][2010] FCA 1074 at [12]-[19]
a)the provisions only relate to conduct which occurs before a contract of employment arises[12];
[12] [13]
b)in order to make out his case an applicant needs to establish:
i)that each representation was made;
ii)that, viewed objectively, each representation was liable to mislead him as to the availability, nature, terms or conditions, or another matter relating to the employment proposed by the respondent; and
iii)that he relied on the representations[13];
[13] [14]
c)in order to be compensated for any loss and damage an applicant needs to establish a causal connection between the respondent’s conduct and the loss for which he seeks compensation[14];
[14] [14]
d)to the extent that the alleged representations about a future matter:
i)section 51A/s.4 is a qualified and complex deeming provision that, properly characterised, is as an interpretation provision and does not of itself create a cause of action, nor define a norm of conduct;
ii)a representation is to be taken to be misleading if it is a representation with respect to any future matter and the maker of the representation does not have reasonable grounds for making the representation;
iii)the maker of the representation is to be deemed not to have had reasonable grounds for making the representation unless it adduces evidence to the contrary;
iv)if evidence is adduced by a representor to the effect that the representor had reasonable grounds for making the representation, the deeming provision will not operate;
v)the legal or persuasive onus, in such a case, is not cast upon the representor by this section; and
vi)where the representor adduces such evidence, it is then a matter for the Court to determine, on the balance of probabilities in the ordinary way, whether or not the representor had reasonable grounds for making the representation[15];
e)evidence of reasonable grounds may be established by evidence other than that of the persons who are alleged to have made particular representations as to a future matter[16];
f)if one changes the exercise to an inquiry, not into genuine or honest belief, but into whether there were reasonable grounds, it is again the overall circumstances of the case which will provide more reliable guidance than would oral evidence on the part of interested parties;
g)the Court may find the overall probabilities to which the circumstances of a given case give rise, the background to it and the conduct of parties prior to conversations taking place as providing better guides to whether or not they had particular states of mind or whether particular factors existed which would establish evidence of something such as reasonable grounds[17];
h)in order to obtain relief under s.82, a person must have suffered loss or damage “by” conduct in contravention. This requirement should be understood as taking up the common law practical or common-sense concept of causation, except in so far as that concept is modified or supplemented expressly or impliedly by the provisions of the Act[18]; and
i)the misrepresentation thus need not be the sole cause of an applicant’s loss or damage[19].
[15] [16]
[16] [17]
[17] [17]
[18] [18]
[19] [19]
Mr Fotiou does not dispute the above description of the relevant principles[20].
[20] this summary being first provided to Mr Fotiou on 10 May 2013
The alleged representations in 2007
Mr Fotiou sues on representations alleged to have been made by Courier Newspapers on or about 22 March 2007.
The representations pleaded are at odds with the terms of the Written Agreement and the Standard Terms and the respondents contend that the Court should not accept, as a matter of fact, that they were made as alleged.
Although there are disputed questions of fact between the parties about what representations were made to the transferring employees in 2007, when and in what circumstances the representations were made, and who made them, I am prepared to accept that, before the transfer of employment from FPC to Courier Newspapers in 2007, the transferring employees were told that their terms and conditions of employment would be unaffected by the transfer. In general terms, that representation was correct and was reflected in the contracts of employment offered. However, the fly in the ointment was the cessation provision in the Workplace Relations Act. There is no persuasive evidence that before the transfer in 2007 that provision was in contemplation by Courier Newspapers. On the other hand there is evidence that Courier Newspapers became aware of the effect of that provision after the transfer of employment. The letter to Mr Sevgin dated 1 May 2007[21] states as follows:
[21] Exhibit A1
As you are aware your employment has transferred from Federal Publications Company ABN to Cumberland Newspaper Group [Courier Newspaper Management Holdings Pty Ltd] (the Company). Under the Workplace Relations Act (the Act), we are required to write to you and notify you of the following:
1. On and from your commencement of your employment with the Company, the following Agreement became binding on the Company:
a. Hannaprint NSW Pty Limited, Hannaprint Victoria Pty Limited, Craft Printing Pty Limited FPC Courier (Production & Circulations Alexandria) and FPC Power (Production Alexandria) Enterprise Agreement 2005
2. The Transmission Period for the Agreement started on 2 April 2007 and ends on 1 April 2008 (the Transmission Period).
3. The Company will remain bound by the Agreement until 1 April 2008 unless the Agreement is
(a) terminated; or
(b) ceases to be in operation.
4. The Agreement could be replaced and/or excluded by a new Workplace Agreement.
5. In the event of the Transmission Period ending on 1 April 2008, you are protected by the provisions of the Australian Fair Pay & Conditions Standard and the Company also undertakes to continue to apply the terms and conditions of the Agreement.
6. A copy of this notice will be filed with the OEA within 14 days.
As the company agrees to continue the terms and conditions of your Agreement, you don’t have to do anything as a result of us sending this notice to you – as nothing changes.
Please contact Tim Hayes, HR Manager, CNG on 9689 5182 if you have any questions.
What this shows is that Courier Newspapers received advice that the Australian Fair Pay and Conditions Standard had the effect of protecting transferring employees from the cessation provision in the Workplace Relations Act and Courier Newspapers undertook to continue to apply the 2005 Enterprise Agreement to Mr Sevgin. The source of that benefit was not Mr Sevgin’s contract of employment, nor any pre contractual representation, but rather a post contractual undertaking. It may be that the same undertaking should have been given to Mr Fotiou. It was not, presumably because Mr Fotiou was not considered by Courier Newspapers to be covered by the 2005 Enterprise Agreement. In the light of my finding that the 2005 Enterprise Agreement did apply to Mr Fotiou that may still be a live issue between the parties, but it is not the issue that the Court is required to determine.
No misleading and/or deceptive conduct in 2007
I otherwise agree with the respondents’ submissions on this aspect of the matter. Mr Fotiou’s case is in reality that the alleged representations by Courier Newspapers in 2007 about the 2005 Enterprise Agreement were misleading because the termination benefits from Nationwide in 2012 did not include benefits under the 2005 Enterprise Agreement. This alone is insufficient to establish that the representations were misleading or deceptive[22].
[22] See Robertson v Knott Investments Pty Ltd [2010] FMCA 142 at [25]:
… That a promise or prediction is not fulfilled is alone insufficient to establish that it was misleading or deceptive: Bill Acceptance Corp Ltd v GWA Ltd (1983) 50 ALR 242. A prediction will only amount to misleading conduct in circumstances where the person making the statement knew it to be false or made the statement with reckless disregard as to whether the statement was true or false: Thompson v Mastertouch TV Service Pty Ltd (No 2) (1977) 15 ALR 487
In any event the alleged representations were not liable to mislead Mr Fotiou as to the terms or conditions relating to the employment proposed by Courier Newspapers because at the same time that the representations were said to have been made Mr Fotiou was handed a comprehensive written contract and standard terms.
The alleged representations, even if they were made in the form alleged, must therefore be considered in the light of the express terms of the written contract of employment (including the “entire agreement” provision). In this context I am not persuaded that the alleged representations actually misled or were liable to mislead Mr Fotiou.
Reliance
Representations must be a “real” inducement in the sense that they “materially affected the representee’s decision to contract”[23].
[23] see for example McRae v Watson Wyatt Australia Pty Ltd [2008] FMCA 1568 at [35]
Mr Fotiou did not act to his detriment in 2007 (or 2010 for that matter) as a result of the alleged representations.
Causation
Mr Fotiou’s case explicitly connects the alleged termination payment shortfalls with the alleged misrepresentations. Mr Fotiou’s case is akin to a broken promises case, which cannot succeed.
Mr Fotiou did not or could not reasonably have relied upon the alleged representations in such a way as to have caused him to suffer the damage that he apparently relies upon.
Mr Fotiou declined to indicate in any meaningful way how it is said that the alleged contraventions caused him to suffer damage.
Claim against Courier Newspapers
The claim against Courier Newspapers, for the above reasons, fails.
Further, the causal link between the alleged contravention and the alleged damage was broken when Mr Fotiou accepted employment with Nationwide.
Claim against Nationwide / 2010 Representations
Mr Fotiou continues to sue Nationwide under the Australian consumer law for what are said to be representations in 2010[24].
[24] second further amended statement of claim, [23A]
Nationwide did not make any offer of employment or representations to Mr Fotiou in 2007, however Mr Fotiou says that Nationwide “repeated the [2007] representations” in 2010[25] by its letter dated 6 August 2010.
[25] second amended statement of claim, [23A]
This claim against Nationwide cannot succeed in the terms in which it is pleaded.
Mr Fotiou sues Nationwide on the Written Contract / Standard Terms (in his contract claim) and claims the fruits said to be available from that binding agreement[26]. I have already found that the contract does not displace the cessation provision in the Workplace Relations Act. Mr Fotiou cannot credibly claim, at the same time, that Nationwide in offering to continue the original contractual terms (ie the Written Contract and Standard Terms) did not have reasonable grounds for doing so. It is plausible that by 2010, Nationwide must have known about the issue identified in Exhibit A1. That issue was not, however, something that arose from the contract of employment or any pre contractual representations. Rather it was an issue arising from the Australian Fair Pay and Conditions Standard. With the benefit of hindsight, Mr Fotiou might now justly claim that he, like Mr Sevgin, should have the benefit of the undertaking given by Courier Newspapers in compliance with the Standard. However, he cannot claim a contractual right to that benefit and neither can he claim that he was told by Nationwide that he would have that benefit.
[26] see second amended statement of claim, [6(ab)]
I find that the claim against Nationwide fails.
I certify that the preceding sixty-two (62) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 21 February 2014
1.8 SCOPE AND PARTIES BOUND
This award binds:
1.8.1 The Printing Industries Association of Australia and its members;
1.8.2 The Graphic Arts Services Association of Australia and its members;
1.8.3 The Australian Industry Group and its members; and
1.8.4 The employers named in Schedule A of this award; and
1.8.5 The Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union and its members, and
1.8.6 Persons employed by the members referred to in 1.8.1, 1.8.2, 1.8.3 and the employers referred in 1.8.4 who perform any employment of the industry and industrial pursuits mentioned in 1.6.1 and 1.6.2.
1.8.7 Despite anything to the contrary contained in this clause employees, whether members of a union or not, are bound by this award only if their work is covered by this award.
“Now, first of all, we have to see what the claim is. It is an action to enforce payment of moneys due to the plaintiff, not by virtue of any contract, express or implied, but by virtue of a statutory obligation…
But the present case is avowedly not based on contract at all…. The right claimed is a new right. It is a right which was unknown before to the law: a right to receive from an employer more than was bargained for. Parliament has on the ground of public policy found that that is a just and a necessary right. But it is a new one. And in the same section we find that Parliament has also enacted a new and special mode of enforcing that right. If the right had been simply created and no specific method of enforcement had been pointed out, the existing law itself would have provided a method through any Court already invested with jurisdiction to determine a claim of that nature (Doe d. Bishop of Rochester v. Bridges). But a specific method having been created, it becomes a question whether that method is exclusive or not. That depends, not upon any rigid rule, but upon the intention of Parliament appearing from the Act.
Primâ facie, where the same Statute creates a new right and specifies the remedy, that remedy is exclusive”. (footnote omitted, emphasis added)
In contracts of this nature, apparently lacking written formality and detailed specificity, it still is necessary to show that the term in question would have been accepted by the contracting parties as a matter so obvious that it would go without saying.
Nor could it be said that the implication into the contract of employment of a term to the effect of cl 11(a) of the Award would be necessary for their reasonable or effective operation. In the absence of such a contractual provision, there would remain unaffected the entitlement of the employer at general law to terminate at will on giving reasonable notice and to dismiss summarily for misconduct. That this would be the case was accepted in the submissions of both sides to this Court. Thus, there would be no "gap" which it was necessary to fill by a provision such as cl 11(a).
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