Goswami v BPL Adelaide Pty Ltd
[2021] FCCA 302
•1 March 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
| GOSWAMI v BPL ADELAIDE PTY LTD | [2021] FCCA 302 |
| Catchwords: INDUSTRIAL LAW – Alleged contraventions and breaches of Fair Work Act –contract of employment – implied terms – repudiation – Enterprise Agreement – where employer unilaterally demoted employee and changed location of employment after incident in workplace – breaches of ss 50 and 323 of the Fair Work Act established. |
| Legislation: Fair Work Act 2009 (Cth), ss.12, 13, 14, 50, 323 |
| Cases cited: Addis v Gramophone [1909] AC 43 Baltic Shipping Co v Dillon [1993] HCA 4 |
| Applicant: | DILIPGIRI GOSWAMI |
| Respondent: | BPL ADELAIDE PTY LTD |
| File Number: | ADG 288 of 2019 |
| Judgment of: | Judge Heffernan |
| Hearing date: | 4 August 2020 |
| Date of Last Submission: | 4 August 2020 |
| Delivered at: | Adelaide |
| Delivered on: | 1 March 2021 |
REPRESENTATION
| Counsel for the Applicant: | Ms Stewart |
| Solicitors for the Applicant: | Holding Redlich |
| Counsel for the Respondent: | Mr Fredricks |
| Solicitors for the Respondent: | AFEI Legal Pty Ltd |
INDEX
Introduction
Background and agreed facts
Materials relied upon
Summary of alleged contraventions and breaches
Submissions
a.Terms of the employment contract and allegations of breach
i.Location and lost opportunity for overtime
ii.Reduction in pay and level of responsibility
b. Repudiation of the contract
c.The Enterprise Agreement
i.Clause 11 – Counselling/disciplinary procedure
ii.Clause 13.1.3 – employment categories
iii.Clause 9 – Introduction of change in the workplace
iv.Clause 15.6.4 - Mixed Functions
d.Damages
Consideration
a.Terms of the employment contract and allegations of breach
i.Location
ii.Reduction in pay and level of responsibility
b. Repudiation of the contract
c.The Enterprise Agreement
i.Clause 11 – Counselling/disciplinary procedure
ii.Clause 13.1.3 – employment categories
iii.Clause 9 – Introduction of change in the workplace
iv.Clause 15.6.4 – Mixed Functions
d. Breach of FW Act ss 50 and 323
DECLARATIONS
The Court makes the following declarations:
The respondent committed breaches of ss 50 and 323 of the Fair Work Act 2009 (Cth) by:
(a)Taking disciplinary action which was beyond the permissible scope contained within the provisions of Clause 11 of the BPL Adelaide Pty Ltd (Production and Distribution Employees) Enterprise Agreement (2016 – 2020) (‘The Enterprise Agreement’); and
(b)Failing to pay the applicant as a Level 3 Distribution employee in accordance with Clause 15.1 of the Enterprise Agreement; and
(c)Failing to consult the applicant before implementing a change to his work locations by transferring him from the Hakkinen Road site to the Moss Road site.
At all material times the applicant was a Distribution Employee Level 3.
ORDERS
Further consideration of the matter is adjourned to 10.30am on 4 March 2021 before Judge Heffernan for directions as to future listing for submissions on damages and penalties.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ADELAIDE |
ADG 288 of 2019
| DILIPGIRI GOSWAMI |
Applicant
And
| BPL ADELAIDE PTY LTD |
Respondent
REASONS FOR JUDGMENT
Introduction
This matter proceeded before me as a trial on the papers. Neither party sought to lead oral evidence, each relying on the affidavit material as filed. Neither sought to cross-examine any of the witnesses of the other party. Both parties rely on a joint statement of agreed facts and their respective materials submitted in a Court Book filed approximately two weeks prior to trial which included their outlines of submissions.
The respondent operates poultry processing facilities at Hakkinen Road and Moss Road, both in Wingfield, South Australia. The applicant was employed by the respondent as a poultry distribution worker and at the relevant time his employment required him to drive a forklift. This dispute arises from an incident which occurred on 5 March 2019 when the applicant was driving a forklift in the course of his employment at the Hakkinen Road site (‘the incident’). It is the actions taken by the respondent in disciplining the applicant, changing his employment classification, and changing the site at which it required him to work, that form the basis of the dispute.
The applicant in this matter was, at all relevant times, an employee of the respondent and a National System Employee within the meaning of s 13 of the Fair Work Act 2009 (‘the FW Act’).
The respondent, BPL Adelaide Pty Ltd, is a Constitutional Corporation within the meaning of s 12 of the FW Act and a National System Employer within the meaning of s 14 of the FW Act.
It is agreed between the parties that the proceedings should be bifurcated and that if I determine the question of liability in favour of the applicant the matter be adjourned to consider the question of damages and what, if any, penalties should be imposed. I have nonetheless briefly summarised the brief submissions made by the parties as to both damages and penalties.
Background and agreed facts
The applicant commenced employment with the respondent as a casual employee on or about 28 November 2011. The casual contract stipulated the applicant’s work location to be the Hakkinen Road site.[1]
[1] CB 55; Joint Statement of Agreed Facts, filed 8 May 2020, Annexure A.
The applicant commenced permanent full time employment with the respondent on or about 24 January 2014. The full time contract stipulated that duties and payment would be consistent with that of a ‘Process Worker - Distribution Level 3’, at “your location”. [2] The applicant’s work location remained at the Hakkinen Road site until April 2019 when disciplinary action was taken against him. It is not contentious that the Moss Road site afforded less overtime than the Hakkinen Road site generally.
[2] CB 59; Joint Statement of Agreed Facts, filed 8 May 2020, Annexure B.
Prior to the incident in March 2019, which led the respondent to take the contested actions, the applicant had been issued two previous written warnings for other workplace incidents. In June 2018, he was issued a written warning in relation to conduct described in the letter as, “unsafe operating of PMP and failing to follow correct operating procedure.”[3] In November 2018, the applicant was issued another written warning, this time in relation to conduct described as, “threatening and intimidating behaviour and being discourteous, degrading and offensive to a fellow worker.”[4]
[3] CB 63; Joint Statement of Agreed Facts, filed 8 May 2020, Annexure C.
[4] CB 65; Joint Statement of Agreed Facts, filed 8 May 2020, Annexure D.
The 5 March 2019 incident occurred when the applicant was involved in an accident at work whilst driving a forklift. He was subsequently stood down from forklift duties pending an investigation.[5] Meetings were held between management and the applicant on 1, 4 and 17 April 2019.
[5] CB 51; Joint Statement of Agreed Facts, filed 8 May 2020 [20].
A final written warning letter was issued to the applicant on 18 April 2019.[6] A summary of its contents is as follows:
a)The applicant had stated during the initial meeting on 1 April 2019 that the incident occurred due to “[his] mistake as [he] pressed the button to go too far forward and the tyres hit the pallet which hit the bar causing it to fall.”
b)The applicant claimed during a second meeting on 4 April 2019 that he had not been trained using the particular Crown forklift in which the incident had occurred.
c)The forklift involved in the incident required the driver to complete a digital, automated start-up questionnaire involving a series of yes or no questions before it would become operational. It was identified during the course of investigation by the respondent, that the applicant had completed this questionnaire successfully on “many occasions, including the date of this incident”.
[6] CB 66-68; Statement of Agreed Facts, filed 8 May 2020, Annexure E.
The following disciplinary actions (‘the contested actions’) were subsequently imposed, commencing 29 April 2019:
a)The applicant was “stood down as Distribution Employee Level 3 at Hakkinen Road”. (‘reduced duties’)
b)The applicant was to be paid as a Level 2 Distribution employee. (‘reduced pay’)
c)The applicant was directed to “Commence as Distribution Employee Level 2 at Moss Road”. (‘change of work location’)
The letter also included the following statement:
“We are expecting an immediate satisfactory improvement, which is required to continue for the full term of your employment with us. Failure to improve to an acceptable level, in particular, a repeat of any performance incident will result in the termination of your employment.” (emphasis in original)
The applicant disagreed that his rate of pay should be reduced and consequently refused to sign the final warning letter. A notation of this objection was made on the letter and a secondary copy provided to the applicant.[8]
[8] Ibid.
On 10 May 2019, the National Union of Workers sent a letter to the respondent on behalf of the applicant contesting the respondent’s power to stand him down from the position and pay of a Level 3 employee.[9]
[9] CB 69-72; Joint Statement of Agreed Facts, filed 8 May 2020, Annexure F.
On 7 August 2019, the applicant filed an Application with this Court which was later amended on 29 October 2019. The matter was before me on 4 August 2020.
At the applicant’s request, he has been engaged as a casual worker from 23 December 2019 and makes no claim in relation to events outside the relevant claim period of 29 April 2019 until 23 December 2019. The applicant submitted that during the claim period he was ready willing and able to perform the duties of a Level 3 employee.
Materials relied upon
With the exception of payslips, read by the applicant without objection on the day of trial, all the materials were presented under cover of the Court Book.
The applicant relied on:
a)A Joint Statement of Agreed Facts, filed 8 May 2020;
b)The affidavits of Dilipgiri Goswami, filed 9 August 2019, 3 June 2020 and 14 July 2020;
c)The affidavit of Nikolas Pefanis, filed 14 July 2020; and
d)Payslips of applicant dated 1 January 2019 – 5 March 2019.[10]
[10] Exhibit A1.
The respondent relied on:
a)The affidavits of Dada Hu, filed 26 June 2020 and 9 July 2020;
b)The affidavit of Gavin Olrich, filed 26 June 2020; and
c)The affidavit of Elizabeth Chalmers, filed 26 June 2020.
Summary of alleged contraventions and breaches
By his Amended Application, the applicant contends that the respondent breached his contract of employment. At the time of the incident the applicant was employed as a ‘Level 3 - Dispatch Order Pickers and Loaders’ employee (‘Level 3 employee’). In the disciplinary process which followed the incident the respondent unilaterally demoted the applicant to a ‘Level 2 - Dispatch Order Pickers and Loaders’ employee (‘Level 2 employee’), reduced his pay and transferred him from Hakkinen Road to the Moss Road site.
The applicant submits that the respondent’s actions went beyond the permissible scope of the relevant Enterprise Agreement and consequently breached ss 50 and 323 of the FW Act.
Section 50 of the FW Act is a civil remedy provision which provides that a person must not contravene an Enterprise Agreement.
Section 323, also a civil remedy provision, provides as follows:[11]
[11] Notations excluded.
“Method and frequency of payment
(1)An employer must pay an employee amounts payable to the employee in relation to the performance of work:
(a)in full (except as provided by section 324); and
(b)in money by one, or a combination, of the methods referred to in subsection (2); and
(c)at least monthly.
(2)The methods are as follows:
(a)cash;
(b)cheque, money order, postal order or similar order, payable to the employee;
(c)the use of an electronic funds transfer system to credit an account held by the employee;
(d)a method authorised under a modern award or an enterprise agreement.
(3)Despite paragraph (1)(b), if a modern award or an enterprise agreement specifies a particular method by which the money must be paid, then the employer must pay the money by that method.”
The applicant claims to have suffered both economic and non-economic loss as a result of the respondent’s actions.
In general terms, the respondent’s case is that there could be no breach of the employment contract or contravention of the Enterprise Agreement (and consequently no breach of the FW Act) since neither instrument prohibited the actions taken, which were reasonable and appropriate disciplinary measures in all of the circumstances. The relevant surrounding circumstances involve two previous written warnings and, what is alleged to be a second serious incident, within a 12 month period. It is further submitted that the applicant could not have suffered the loss he claimed because the proper alternative would have been for the respondent to terminate the employment arrangement in its entirety.
Submissions
Terms of the employment contract and allegations of breach
Location and lost opportunity for overtime
It is an agreed fact between the parties that the relevant employment arrangement was governed by the 2014 permanent contract, the ‘BPL Adelaide Pty Limited (Production and Distribution Employees) Enterprise Agreement (2016-2020)’, (‘the Enterprise Agreement’) and any implied terms.[12] The applicant submits that in addition to the above, the 2011 casual contract also formed part of the employment arrangement insofar as it should be used to import meaning into the term ‘location’ in the permanent contract.
[12] CB 49; Joint Statement of Agreed Facts, filed 8 May 2020 [8].
The permanent contract, it was argued, could be seen as varying the casual contract, as opposed to replacing in its entirety,[13] as was the case when the contract had been previously varied with the introduction of the Enterprise Agreement in 2016, and on each occasion when the applicant continued to work after receiving a pay increase.[14] The applicant relies on the fact that the permanent contract contains the same provisions and is almost identically worded to the casual contract, aside from the introduction of appropriate entitlements available to permanent staff.
[13] CB 155; Applicant’s Outline of Submissions, filed 20 July 2020 [13]-[14].
[14] CB 156; Applicant’s Outline of Submissions, filed 20 July 2020 [20].
The 2011 casual contract contains an express term regarding place of work, which was stated to be the Hakkinen Road site. The 2014 permanent contract stipulates hours of work to be “consistent with the usual business hours at your location …”[15]It is not disputed that the applicant’s location of work was at all times, until his demotion on 29 April 2019, at the Hakkinen Road site.
[15] CB 59; Joint Statement of Agreed Facts, filed 8 May 2020, Annexure B (emphasis added).
It is significant, according to the applicant, that he worked exclusively at the Hakkinen Road site prior to the contested actions because despite the close geographical location of the two sites, the Moss Road facility did not offer opportunities for overtime, which caused him to suffer additional and significant economic loss.
It is an agreed fact that in addition to ordinary full time hours, the applicant worked overtime, from time to time, at the Hakkinen Road site from February 2014 until his demotion in 2019.[16] Specifically, the applicant claims he worked overtime every weekend (except one) in the 3-month period leading to the contested action but that he had not been rostered to work any weekends since the forklift incident on 5 March 2019.[17] Payslips dated 1 January 2019 to 5 March 2019 were tendered as evidence of this.[18]
[16] CB 49; Joint Statement of Agreed Facts, filed 8 May 2020 [10].
[17] CB 4; Affidavit of the Applicant, filed 9 August 2019 [14].
[18] Exhibit A1.
In relation to any implied terms of the contract, the applicant submits that the case of Australian Colliery Staff Association v Queensland Mines Rescue Service[19] (‘Colliery Staff’) established that terms which would permit an employer to unilaterally change an employee’s employment location are not ordinarily to be implied. The respondent argued that Colliery Staff was a repudiation case in which the locations were a distance of some 800 kilometres apart. The court found that location was a specific term of the contract and the individuals were employed at the particular location. This authority is in stark contrast to the present case according to counsel for the respondent.[20]
[19] (1999) 88 IR 78 [1999] FCA 395 [54], [56].
[20] Transcript (‘TX’) 22.
The respondent says that if there is an implied term, the evidence on how the operations are integrated, with both locations being part of the same management structure and covered by the same agreement, as well as the physical closeness of the operations, suggests that the term ‘location’ refers to either of the two sites operated by the respondent company.[21]
[21] TX 22.
The respondent disputes the applicant’s reliance on the reference to the Hakkinen Road site in the 2011 casual contract and submits that he was not employed in any particular location and no reference to one can be implied or imported into the permanent contract. On the respondent’s case, the permanent contract effectively brought the causal contract to an end, superseding it in its entirety.[22] The wording of the permanent letter allegedly indicates the ending of the casual contract in that it states: “This letter sets out the terms and conditions of your employment.”[23]In addition, the respondent relies on the fact that the terms of the full-time letter do not specifically provide for any terms in the casual letter to continue. On the respondent’s case, the applicant’s reliance on the casual letter is inconsistent with the Amended Application and the agreed facts and it was therefore argued that he should not now be permitted to seek relief on the basis of any terms contained within the casual letter.
[22] CB 166-167; Respondent’s Outline of Submissions, filed 27 July 2020 [12]-[16].
[23] CB 167; Respondent’s Outline of Submissions, filed 27 July 2020 [15].
Two observations can be made about that submission. Firstly, this is not a court of strict pleading, but in any event, the Amended Application does assert that the contract of employment provided that the applicant would be offered duties at the Hakkinen Road site.[24] Secondly, the statement of agreed facts, as I have already noted, establishes that the applicant was a full-time employee of the respondent pursuant to the terms of the full-time letter, any implied terms in the applicant’s contract of employment, and any applicable industrial instrument. The full time letter provided that the applicant would be given duties at his location. It is at least arguable on the Amended Application and the evidence that the applicant’s case picked up the location aspect from the casual letter. I am not satisfied that it has been demonstrated that the applicant should be prevented from relying on the casual letter in his attempt to establish an implied term of the contract of employment.
[24] CB 28, 30; Amended Application, filed 30 October 2019 [9a], [20a].
Reduction in pay and level of responsibility
The applicant submits that the permanent contract contained an express term that he would continue to be paid as a Level 3 employee. Furthermore it was uncontested that the applicant had performed duties and received remuneration as a Level 3 employee until his demotion in April 2019 and that during the claim period, the applicant’s rate of pay was reduced from $24.41 to the Level 2 rate of $23.57 per hour. The applicant also submits that at all material times, he was ready, willing and able to perform the duties of a Level 3 employee and that failure to pay him as such amounted (inter alia) to a breach of the employment contract.
Conversely, the respondent submits that the applicant did not hold any contractual right to be engaged as or paid at a particular level,[25] and that the applicant’s only contractual right was to “be employed as a full time process worker working in distribution.”[26]
[25] CB 171; Respondent’s Outline of Submissions, filed 27 July 2020 [39].
[26] CB 169; Respondent’s Outline of Submissions, filed 27 July 2020 [32].
The respondent also argues that transferring the applicant from performing Level 3 duties to Level 2 duties was justified and allowable in circumstances were there had been a second serious incident within a 12 month period.[27]
Repudiation of the contract
[27] CB 167; Respondent’s Outline of Submissions, filed 27 July 2020 [17]-[19];
Counsel for the applicant directed the Court to authorities which supported the proposition that a lack of express power to demote or relocate an employee, particularly in circumstances where a reduction in remuneration has occurred, would amount to breach of contract, and in cases of significant reduction in remuneration, a complete repudiation of that contract.[28] On the applicant’s case, he experienced a significant reduction in remuneration due to both his pay rate reduction as well as his lost opportunity for overtime due to the transfer.
[28] See Eg: Andrew Charlton Kenneth v Eastern Australia Airlines Pty Ltd [2006] PR972773 [34]; National Union of Workers and Australian Pacific Paper Products [2007] AIRC 988, (cited in Applicant’s Outline of Submissions, filed 20 July 2020, [31]-[32]).
Conversely, the respondent submits that, particularly if his claim for lost opportunity for overtime was not successful, the applicant’s reduction in pay from Level 3 to a Level 2 could not result in a loss so significant that it would amount to complete repudiation of the employment contract. The respondent submits further that although the applicant did not consent to a reduction in his pay, he did not oppose the reduction in duties or the move to the new work site in either his discussions with management or later through correspondence received from his NUW representative.
The Enterprise Agreement
Both parties argued to persuade the Court of their preferred interpretation of various Clauses of the Enterprise Agreement.
Clause 11 – Counselling/disciplinary procedure
Clause 11 of the Enterprise Agreement contains an express counselling/disciplinary procedure which, on the applicant’s case, does not include the ability to transfer or demote employees as part of disciplinary proceedings and accordingly, the respondent’s actions went beyond the permissible scope of the clause. Specifically, the Court was referred to Clause 11.3 which states; “… the Counselling procedure will consist of one or all of the corrective measures as stated below.”[29] It is also submitted by the applicant that subsequent Clauses 11.3.1 to 11.4 provided for an escalating procedure of warnings leading up to termination and this was intended to wholly encompass the permissible disciplinary sanctions available to the respondent. On the applicant’s case, demotion is clearly not encompassed within the relevant clauses and it would have been open to the Agreement drafters to include such power had they intended to.
[29] CB, 190.
With reference to relevant authorities,[30] the applicant further submits that express terms providing for the power of demotion are commonly used in employment instruments, suggesting that the power is intentionally absent and not open to being implied in this case.[31]
[30] Fardell v Coats Hire Operations Ltd (2010) 201 IR [67], [78]; Australian Federal Police Enterprise Agreement 2017-2020, cl 37.
[31] CB 156; Applicant’s Outline of Submissions, filed 20 July 2020 [23], [31].
In response to the contention that Clause 11 did not include the ability to transfer or demote employees as part of disciplinary proceedings, the respondent submitted that, through his own conduct, the applicant had enabled the operation of Clause 11.3.2 which provides expressly for the issuing of a final warning letter which may include “corrective measures”.[32] On the respondent’s case, ‘corrective measures’, by implication, includes such actions that bear a reasonable relationship to the misconduct in the particular circumstances, meaning that the corrective actions taken were both appropriate and proportionate to the misconduct and justified in circumstances were there had been a “second serious incident within a 12 month period.”[33]
[32] CB 190.
[33] CB 167; Respondent’s Outline of Submissions, filed 27 July 2020 [18].
Clause 13.1.3 – employment categories
The Court was referred to Clause 13.1.3 of the Enterprise Agreement which provides:
“The Company may direct an employee to carry out such duties as are within the limits of the employee’s skill, competence and training consistent with the classification structure of this Agreement …”[34]
[34] CB 190.
The respondent submits that the Enterprise Agreement does not operate by reference to level classifications because it does not contain a provision that an employee must be specifically engaged at a particular level or that their classification cannot be changed.[35] I note, however, that Clause 14 of the Agreement provides definitions of the various classification levels.
[35] CB 168-169; Respondent’s Outline of Submissions, filed 27 July 2020, [28].
Clause 9 – Introduction of change in the workplace
Clause 9 of the Enterprise Agreement outlines circumstances in which there is an obligation to notify and discuss change in the workplace with staff.[36] Clause 9.1.2 specifically imposes this obligation when intending to transfer employees to other work or locations.[37] The applicant put to the Court that the contested action therefore constituted a clear breach of an express Clause (9.1.2) of the Enterprise Agreement.[38]
[36] CB 187.
[37] CB 187.
[38] CB 156; Applicant’s Outline of Submissions, filed 20 July 2020, [22].
On the respondent’s case, the obligation to consult did not apply under the circumstances because it only operates in respect of a “definite decision to introduce major change in production, program, organisation, structure or technology that is likely to have significant effects on employees.”[39]It was argued that the change in location could not reasonably have had a significant impact on the applicant because the two sites are only approximately 2.5 kilometres apart, within the same suburb and with the Moss Road site being closer to the applicant’s home address.
[39] CB 187.
It is also the respondent’s position that by virtue of Clause 9.2.4, Clause 9 does not apply where the Agreement otherwise provides for an ability to make relevant changes.[40] In this regard, the Court was referred to various clauses within the Enterprise Agreement that the respondent says allowed for the location transfer including Clauses 13.1.3 and 15.6.4. Clause 13.1.3 (see above) relates to the ability to direct staff to perform duties within the limits of skill, competence and training consistent with their classification, and Clause 15.6.4, (below) deals with remuneration for employees temporarily moved to a lower classification. It is submitted that these clauses excuse the respondent from compliance with Clause 9’s notification and discussion obligations. Clause 9 itself sets out the obligations to ‘consult’ which on the respondent’s case does not expressly prohibit the transfer of employees to different locations, but rather contemplates it.[41]
[40] CB 188, 168-170; Respondent’s Outline of Submissions, filed 27 July 2020 [28(b)], [28(e)], [37(b)].
[41] CB 170; Respondent’s Outline of Submissions, filed 27 July 2020 [37(c)].
Clause 15.6.4 – Mixed functions
Clause 15.6 of the Enterprise Agreement deals with wages for mixed function duties.[42] Clause 15.6.4 provides, “If an employee is required to perform tasks at a lower classification for a temporary period (not ongoing) they shall remain at their current ordinary classification.”[43]
[42] CB 200-201.
[43] CB 201.
It is the applicant’s position that the wording of Clause 15.6.4 clearly provides for the preservation of the wages at the classification Level 3.[44]
[44] TX 13.
The respondent’s position is that Clause 15.6.4 contemplates that there may be a requirement for employees to perform reduced tasks on either a temporary or permanent basis, and in the case of the latter, the respondent would be justified in paying the lower classification rate.[45]
Damages
[45] CB 169; Respondent’s Outline of Submissions, filed 27 July 2020 [28(e)].
On the applicant’s case, the respondent’s actions resulted in his suffering:
a)Shortfall wages, being the difference between the Level 2 and Level 3 pay rate during the claim period, amounting to $987.96.[46]
b)A loss of the opportunity to earn overtime equating to $19,051.28. This figure is calculated on the basis that, from the commencement of his permanent employment up until his demotion, the applicant worked an average of over 6 hours of Saturday work (at time and a half) and almost 7 hours of Sunday work (at double time) per week.[47]
c)Payslip evidence (marked as Exhibit A1) was tendered in support of this submission that in the 3 months directly preceding the contested action, the applicant had worked 92.15 hours of overtime, including 85.82 hours of Sundays at double time.[48]
d)Non-economic loss in the amount of $5,000 for distress, hurt and humiliation.[49] Specifically, the applicant states in his affidavit material that the respondent’s actions resulted in him becoming:
i)Financially distressed as a result of the reduced rate of pay and cessation of overtime in circumstances where he had ongoing financial commitments to his children and other family members.[50]
ii)Emotionally distressed, hurt and humiliated as a result of his colleagues questioning.[51]
iii)Emotionally distressed, hurt and humiliated as a result of the wider Indian community becoming aware of his demotion.[52]
iv)Physically impacted, resulting in back soreness due to the change to more labour intensive duties as required of a Level 2 employee, and further exacerbated mental stress as a result of the physical injuries.[53]
[46] CB 159; Applicant’s Outline of Submissions, filed 20 July 2020 [38].
[47] CB 160; Applicant’s Outline of Submissions, filed 20 July 2020 [40];
[48] CB 77, 144-151; Affidavit of the Applicant, filed 3 June 2020 [8]-[12]; Affidavit of N. Pefanis, filed 14 July 2020, Exhibit NSP-1.
[49] TX 4; CB 160; Applicant’s Outline of Submissions, filed 20 July 2020 [41].
[50] CB 5; Affidavit the Applicant, filed 9 August 2019 [24].
[51] CB 4; Affidavit the Applicant, filed 9 August 2019 [22].
[52] CB 5; Affidavit the Applicant, filed 9 August 2019 [23].
[53] CB 5; Affidavit of the Applicant, filed 9 August 2019 [25].
On the respondent’s case, if the Court were to find against it, damages should be restricted to the difference between the Level 2 and Level 3 pay rate.
In relation to the claim for lost opportunity for overtime, the respondent submits that there was a general reduction in weekend work due to reduced weekend processing during the claim period.[54] In evidence of this, the respondent referred the Court to production records.[55] The reports indicated the following:
a)In May 2019, Saturday processing occurred on only two Saturdays being 4 and 11 May;
b)In June, July and August 2019, there was no Saturday processing; and
c)In September 2019 there was one day of Saturday processing on 21 September.[56]
[54] CB 172; Respondent’s Outline of Submissions, filed 27 July 2020 [44(a)]; Affidavit of Mr Hu, filed 26 June 2020 [11].
[55] CB 133-138; Affidavit of Mr Hu, filed 09 July 2020, Annexure A.
[56] CB 81; Affidavit if Mr Hu, filed 26 June 2020 [11].
The respondent further disputes that the applicant provided the Court with evidence demonstrating he worked less overtime as a result of the contested action and asserts that the applicant was plainly not ready, willing and able to perform weekend work due to his unrelated family stressors, injuries, and the taking of personal and other leave during the claim period.[57] The Court was further directed to the applicant’s approved requests to work two days per week and annual leave arrangements from 11 September 2019 until 20 December 2019, after which time he was granted a request to move to casual employment.[58] Should a calculation for missed overtime be determined, it was submitted that the Court should take into account only weekends in which both the work and the applicant would have been available.
[57] CB 172; Respondent’s Outline of Submissions, filed 27 July 2020 [44(c)].
[58] CB 81; Affidavit if Mr Hu, filed 26 June 2020 [12].
In relation to claims for non-economic loss, the respondent emphasises the lack of medical evidence provided by the applicant to support the alleged distress, hurt and humiliation claim.[59] It is further submitted that damages for stress and humiliation are not usually available for breach of contract.[60]
[59] CB 172; Respondent’s Outline of Submissions, filed 27 July 2020 [44(b)].
[60] CB 173; Addis v Gramophone [1909] AC 433; Baltic Shipping Co v Dillon [1993] HCA 4; 176 CLR 344.
The respondent contends that a lawful termination is warranted in circumstances of two prior written warnings within 10 months prior to the incident, one of which involved the same serious issue of unsafe operation of a forklift, with the written warning on that occasion containing a notice of termination in the event of repeat behaviour. The respondent argues that in these particular circumstances the applicant could not have suffered the loss he claims, since the lawful alternative would have been for his employment to be terminated.
Consideration
To summarise, it is the applicant’s contention that the respondent is liable for contraventions of:
a)The applicant’s employment contract;
b)The relevant Agreement, being the BPL Adelaide Pty Limited (Production and Distribution Employees) Enterprise Agreement. (‘The Enterprise Agreement’); and
c)Sections 50 and 323 of the FW Act.
Terms of the employment contract and allegations of breach
The statement of agreed facts states that the terms of the applicant’s permanent employment were “pursuant to the terms of the full time letter, any implied terms in the Applicant’s contract of employment with BPL and any applicable industrial instrument.”[61]
[61] CB 49; Joint Statement of Agreed Facts, filed 8 May 2020, [8] (emphasis added).
The test for when it is appropriate to imply a term into a contract was considered by the High Court in Hawkins v Clayton.[62] In this case Deane J stated:
“where it is apparent that the parties have not attempted to spell out the full terms of their contract, a court should imply a term by reference to the imputed intention of the parties if, but only if, it can be seen that the implication of the particular term is necessary for the reasonable or effective operation of a contract of that nature in the circumstances of the case. That general statement of principle is subject to the qualification that a term may be implied in a contract by established mercantile usage or professional practice or by a past course of dealing between the parties.”[63]
[62] (1988) 164 CLR 539.
[63] Ibid, [573] (emphasis added).
Cases such as Hasting Shire Council[64] and Codelfa[65] have also attempted to define situations in which terms may be implied into a contract. These authorities provide guiding principles with respect to implied terms, including that they ought be as follows:
a)Necessary to give business efficacy;
b)Not contradictory to an express term;
c)So obvious it goes without saying;
d)Reasonable and equitable, and
e)Capable of clear expression.
[64] BP Refinery (Westernport) Pty Ltd v Hasting Shire Council (1978) 52 ALJR 20 [26].
[65] Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 347, 404.
The permanent contract, a simple letter comprising of 12 paragraphs, did not and could not include every aspect of the employment arrangement within its terms and the Enterprise Agreement has not been able to clarify the disputed issues. It is therefore appropriate to consider whether it is open to the court to imply any of the contentious terms into the employment contract in the present circumstances. I will deal with implied terms of the Enterprise Agreement later in these reasons.
Location
The place of work is integral to the employment contract.[66] Where no term is expressly provided for, evidence of pre-contractual discussions, the nature of employment, and the impact of the transfer will be admissible considerations for the Court.[67] Even in circumstances which expressly allow for employers to freely transfer employees between locations, it has been recognised that such terms should not disadvantage employees or amount to a breach of the implied duty of good faith in performing employment contracts.[68]
[66] Jones v Associated Tunnelling Co Ltd [1981] IRLR 477 (Brown-Wilkinson J).
[67] Australian Colliery Staff Association v Queensland Mines Rescue Service [1999] FCA 395 [52]-[54].
[68] Russell v The Trustees of the Roman Catholic Church for the Archdiocese of Sydney [2007] NSWSC 104 (‘Russell’) [117] (Rothman J).
As identified by the applicant’s counsel, the use of implied terms for business efficacy purposes was considered in Byrne & Frew v Australian Airlines Ltd[69] (‘Bryne & Frew’).In this case, the court discussed implied terms and considered whether a contract of employment would be workable and effective, deprived of substance, or seriously undermined without the disputed term. One significant aspect of the implied term of contract contended for by the applicants in Bryne & Frew was that if accepted, it would have operated in a partisan way. It would have favoured the interests of the employee at the expense of those of the employer. It would also have operated against generally accepted principles of employment law.[70] That could not be said to be the case with respect to the implied term the applicant promotes in this matter. It is equally in the interests of the employee and the employer that the employee have an identifiable location at which to work. That was in any event, the basis on which his employment took place. He was employed at the Hakkinen Road site as a casual worker. He was then made a full time employee and he continued to be employed at the Hakkinen Road site.
[69] (1995) 131 ALR 410.
[70] Ibid, 44.
The respondent referred the Court to the case of Western v Union de Assurances de Paris[71] to support its contention that even a contractual reference to a location would not have precluded the respondent from requiring the applicant to perform duties at different locations as long as that direction was reasonable because any other interpretation would be seen to “propound undesirable inflexibility”.[72] This submission may have carried more weight had the only alleged breach involved a change of work location. In the present circumstances however, the change of work location was accompanied by a reduction in overtime and wages. It cannot be said that business flexibility considerations can excuse the respondent from its basic employment obligations.
[71] (1996) 88 IR 259.
[72] Ibid [261].
A term may also be implied where there is evidence that a custom “is so well known and acquiesced in that everyone making a contract in that situation can reasonably be presumed to have imported that term into the contract.”[73] In assessing this issue I place considerable weight on the fact that the applicant’s work location had consistently been, and continued to be, up until the point of disciplinary action, the Hakkinen Road site. It is objectively reasonable for the applicant to have relied on the fact that his work location would remain unchanged upon signing the permanent contract and I accept the applicant’s submissions in this regard.
[73] Con-Stan Industries of Australia Pty Ltd v Norwich Winterthur (Australia) Ltd [1986] HCA14; (1986) 160 CLR 226.
It is also important to note that the casual contract stipulated the applicant’s work location as Hakkinen Road,[74] and the permanent contract stipulated that duties and payment would be consistent with that of a ‘Process Worker - Distribution Level 3’, at “your location”.[75] Although the full time contract did not specify Hakkinen Road as the location, I remind myself that a document may contain not merely what its words actually express, but also what they necessarily imply.[76] The reference to “your location” in the permanent contract indicates that the location had previously been determined. The applicant was a continuing employee who had worked solely at Hakkinen Road and his continuing work location was “so obvious that it goes without saying.”[77]
[74] CB 55; Joint Statement of Agreed Facts, filed 8 May 2020, Annexure A.
[75] CB 59; Joint Statement of Agreed Facts, filed 8 May 2020, Annexure B.
[76] Hirsch v Zinc Corporation Ltd (1917) 24 CLR 34, 61.
[77] BP Refinery (Westernport) Pty Ltd v Hasting Shire Council (1978) 52 ALJR 20 [26].
Importantly, the two sites appear to have offered different duties of work and the final warning letter specifically directed the applicant be “stood down as Distribution Employee level 3 at Hakkinen Road.” The change in location to Moss Road was also stipulated as part of the disciplinary measures stated in the final warning letter. Had the Hakkinen Road location not been a mutually understood and fundamental term of employment it would not have been necessary for the respondent to word the letter in this way or to enforce the transfer by way of disciplinary action.
There is no acceptable evidence, either within the terms of the employment contract, clauses of the Enterprise Agreement, or by implication through the conduct of the parties, which would suggest that enforcing a unilateral location transfer was open to the respondent as a means of disciplinary sanction or for any other reason.
I am satisfied it has been demonstrated that the legal criteria promoted by the relevant authorities (noted above) for implying terms has been met in this case. Specifically, implying the location term as Hakkinen Road promotes business efficacy, is reasonable and equitable, is not contrary to any express terms and is capable of clear expression.
I make the finding that the Hakkinen Road location is an implied term of the full time employment contract.
Reduction in pay and level of responsibility
It was submitted by the respondent that the applicant did not hold any contractual right to be engaged as or paid as a Level 3 employee:[78]
“[The applicant’s] only contractual entitlement was to be employed as a full time process worker working in distribution. The full time contract does not say [the applicant] will continue to be paid in accordance with the Award and informs him that his hourly rate will change.”[79]
[78] CB 171; Respondent’s Outline of Submissions, filed 27 July 2020 [39].
[79] CB 169; Respondent’s Outline of Submissions, filed 27 July 2020 [32]-[33].
That submission is misconceived. The statement of agreed facts contains at Annexure B a copy of the permanent contract which, in relation to remuneration and level of responsibility, clearly states the following:
“You will continue to be paid in accordance with the Poultry Award 2010 … Your hourly rate as Process Worker – Distribution Level 3 will change from $20.28 plus 25% casual loading to $20.28 plus any applicable leave entitlements.”
That is a clear reference to Level 3 duties and payment. The applicant’s level of pay did not decrease, rather the change from casual to permanent employment meant that the 25% loading was replaced with the relevant entitlements for permanent employment. Both the level of responsibility and associated rate of pay are fundamental terms upon which the applicant was entitled to rely upon signing his employment contract. Further, it is an agreed fact between the parties that the applicant continued to perform duties as a Level 3 employee and was paid in accordance with that level under the Agreement up until the disciplinary action was taken in April 2019.[80]
[80] CB 50; Joint Statement of Agreed Facts, filed 8 May 2020 [13].
I am satisfied that the applicant has demonstrated breach of contract in relation to his reduced rate of pay, reduction in work responsibilities and his transfer to the Moss Road.
Repudiation of the contract
Past authorities have made it clear that unilateral reduction of salary or duties, not authorised under existing employment terms, can amount to repudiation of employment.[81] Determining whether or not repudiation of employment has occurred is a two-step process. The first task is to determine whether or not the unilateral amendments were permitted, either expressly or implied, under the employment arrangement. Having considered this in detail earlier in these reasons, and finding no such permissions exist, I now turn to whether the amendments are serious and significant enough to constitute a complete repudiation of the applicant’s employment. It is important to note that each case turns on its own facts in this regard.[82]
[81] See Eg: in respect of reduction in salary: Tokyo Network Computing Pty Ltd v Tanaka (2004) 55 AILR 200-125(3); [2004] NSWCA 263; Eg: in respect of reduction in duties: Woolworths (South Australia) Pty Ltd v Russian (1996) 66 IR 13 [16].
[82] Earney v Australian Property Investment Strategic Pty Ltd [2010] VSC 621; Western v Union des Assurances de Paris (1996) 88 IR 259 [261].
Section 386(2) of the FW Act relevantly states that an employee has not been dismissed by way of demotion if that demotion did not involve a ‘significant reduction’ in remuneration or duties (s 386(2)(c)(i)).
Determining the seriousness of the unilateral variation in the present case requires consideration of whether or not there has been a ‘significant reduction’ in remuneration or duties so as to meet the definition of ‘dismissed’ under the Act.
In the present case, I am satisfied that the actions of the respondent resulted in the applicant suffering a significant reduction in remuneration and duties and that the respondent’s actions amounted to a repudiation of the contract of employment.
The Enterprise Agreement
It is an agreed fact that from 27 May of 2016 the applicant’s employment was covered by the Enterprise Agreement (rather than the Poultry Award).[83] He continued to work and receive payment as a Level 3 employee under the new Agreement from that time. As the applicant’s Counsel submitted, the Enterprise Agreement states at Clause 4.2 that it operates to the exclusion of all industrial instruments, including awards.
[83] CB 49; Joint Statement of Agreed Facts, filed 8 May 2020 [11]-[12].
The parties were largely in agreement in relation to the legal principles governing interpretation of the Enterprise Agreement and the Court was directed to the High Court decision of Amcor Ltd v CFMEU.[84] (‘Amcor’) Specifically, it was stressed that the language of the Agreement should be read in light of its industrial context and purpose and the commercial and legislative context in which it applies. The Amcor case also expressed with approval the following findings of Madgwick J in Kucks v CSR Ltd: (‘Kucks’)[85]
“It is trite that narrow or pedantic approaches to the interpretation of an award are misplaced. The search is for the meaning intended by the framer(s) of the document, bearing in mind that such framer(s) were likely of a practical bent of mind: they may well have been more concerned with expressing an intention in ways likely to have been understood in the context of the relevant industry and industrial relations environment than with legal niceties or jargon. Thus, for example, it is justifiable to read the award to give effect to its evident purposes, having regard to such context, despite mere inconsistencies or infelicities of expression which might tend to some other reading. And meanings which avoid inconvenience or injustice may reasonably be strained for. For reasons such as these, expressions which have been held in the case of other instruments to have been used to mean particular things may sensibly and properly be held to mean something else in the document at hand.”[86]
[84] (2005) 222 CLR 241; [2005] HCA 10.
[85] (1996) 66 IR 182.
[86] Ibid.
The parties applied the above principles to their interpretation of various clauses of the Enterprise Agreement in opposing fashions during the course of submissions. The disputed clauses are discussed below.
Clause 11 – Counselling/disciplinary procedure
Clause 11 of the Enterprise Agreement contains the counselling and discipline procedures. Essentially, in dispute was whether or not the term ‘corrective measures’[87] should be read to include the action taken by the respondent.
[87] CB 190.
Essentially the applicant argued that when considering the industrial context and purpose, an Enterprise Agreement would, in the usual course, be formally approved by the Fair Work Commission. It could therefore reasonably be presumed that the Agreement would provide employees with procedural fairness, which includes an opportunity to improve performance through training and the like prior to any disciplinary sanction or termination being imposed.
The respondent argued that the applicant was promoting a narrow or pedantic approach which it submitted should be avoided in accordance with the legal principles set out above from Kucks. The respondent also claimed that their actions were proportionate to the applicant’s misconduct and justified in circumstances were there had been a “second serious incident within a 12 month period.”[88] In relation to this submission, I refer to Clauses 11.2 and 11.2.1 of the Agreement which define ‘serious misconduct’. Clause 11.2 states:
“In any case where the actions of an employee are deemed to be unacceptable to the Company, the employee will be counselled as a prerequisite to the commencement of discipline and/or termination proceedings, except that this clause will not apply where the actions constitute serious misconduct.”[89]
[88] CB 167; Respondent’s Outline of Submissions, filed 27 July 2020 [18].
[89] CB 189 (emphasis added).
Clause 11.2.1 goes on to define ‘serious misconduct’ as conduct which includes: wilful or deliberate behaviour; serious and imminent risk to health and safety of a person or reputation; viability or profitability of the Company; theft or fraud or assault; intoxication at work; or the employee refusing to carry out a lawful instruction. It is not disputed that the incident occurred when the applicant, “pressed the button to go too far forward and the tyres hit the pallet which hit the bar causing it to fall”. I find that this incident did not meet the definition of serious misconduct as described under Clause 11.2.1, therefore, the respondent had an obligation to comply with Clause 11.2 and institute counselling procedures which are discussed under Clause 11.3. The issue then becomes whether the list of counselling procedures/corrective actions provided under Clause 11.3 is intended to be exhaustive or if the contested action can be implied in the circumstances.
In consideration of possible implied terms, I remind myself that it is inappropriate for the Court to simply import or imply such terms into an Agreement, as the following passage from Kucks validates:
“A court is not free to give effect to some anteriorly derived notion of what would be fair or just … ordinary or well-understood words are in general to be accorded their ordinary or usual meaning.”
The wording of Clause 11.3 states, “The Counselling procedure will consist of one or all of the corrective measures as stated below”.[90]Clauses 11.3.1 to 11.3.7 do not provide a clear list of available disciplinary or training tools, but what is apparent is a clear intention to provide opportunities for improvement and ongoing review. There is no indication that the drafters intended that reductions in responsibilities or remuneration should form part of counselling/disciplinary procedures. To do so would not enable the opportunity for review that the document insists upon. For example, the applicant was demoted so that he was unable to perform forklift duties at all. As a result no opportunity to demonstrate improved performance was afforded.
[90] CB 189 (emphasis added).
Further, there was no evidence that training was offered to the applicant, despite his claim that he has not been sufficiently trained on the particular forklift in which the incident occurred. Finally, I note the respondent’s wording of the final warning letter which stated, “a repeat of any performance incident will result in the termination of employment.” The requirement to provide immediate improvement of any performance, particularly in circumstance where the job position and duties had been altered, is not an action which is supported in any way by the Enterprise Agreement.
Considering Clause 11 in the context of the Agreement as a whole, as well as the industrial context and legislative framework in which it was drafted, I am satisfied that the surrounding Clauses are drafted in a way which is in line with the obligations imposed on employers under the FW Act and promotes counselling, training and opportunities to improve performance as necessary steps in that process prior to termination. The respondent’s actions were not permitted by Clause 11.
Clause 13.1.3 – employment categories
As explained above, Clause 13.1.3 refers to the company’s ability to direct employees to carry out duties in accordance with varying skill, competence and training within their classification and Clause 14 defines the various classifications.
The respondent’s assertion that the wording of Clause 13.1.3 somehow enabled it to vary the applicant’s role in the manner inconsistent with the employment contract is rejected. I repeat, it is an agreed fact that the applicant’s classification prior to demotion was Level 3.
I accept that the Agreement, when read as a whole, clearly aims to balance the need for business efficiency and flexibility with ensuring obligations to staff are met. In considering this, I note that the aims and objectives of the Enterprise Agreement include, at Clause 6.3, “to provide the Company with sufficient flexibility in order to increase the efficiency of its business and stability of employment.” I do not, however, accept that it was within the contemplation of the drafters that the respondent should be able to overwrite express terms of the employment contract by way of an implied term of the Enterprise Agreement under Clauses 11, 13.1.3 or any other Clause.
Clause 9 – introduction of change in the workplace
As outlined above, Clause 9 relates to the company’s obligations to have discussions with staff prior to the introduction of major change which is likely to have significant effects on employees.
‘Major change’ is defined at Clause 9.1.1 as including changes to production, program, organisation, structure or technology. ‘Significant effects’ is defined at Clause 9.1.2. The list of major changes most relevant to the present case include: changes to skill requirements; reduction in job opportunities; alteration of hours of work; termination of employment; transfer of employees to other work locations; and the restructuring of jobs.
On its face, this Clause demonstrates that the respondent’s actions are expressly prohibited by the Agreement, however, in order to establish a contravention, the applicant must demonstrate both that the action constituted major change and that the respondent failed in their duty to discuss the change with the applicant in accordance with Clause 9.2.
The respondent asserted that the transfer to Moss Road did not have a significant impact on the employee or constitute major change because the close physical proximity of the two sites meant that the definition of ‘significant effect’ could not be met. That argument loses traction upon consideration of the Agreement as a whole and in the context of its surrounding Clauses which is, it has been agreed, the appropriate interpretive approach. Specifically, Clause 4 of the Agreement states that the Agreement covers employees at the Moss Road and Hakkinen Road sites. The Agreement clearly identifies those sites and only those sites, acknowledges the physical closeness of the locations, and yet by virtue of Clause 9.1.2, places conditions on the employer’s power to unilaterally transfer staff.
It is an agreed fact that opportunities for overtime varied significantly between the two sites, consequently, this change led to a significant effect on the applicant. Similarly, his pay reduction and change in job responsibilities had significant impacts on him. I accept the evidence proffered that the applicant suffered embarrassment and work place injuries as a result of the change to his job responsibilities. I further accept that he suffered significant financial consequences as a result of his reduced remuneration.
The disciplinary action taken by the respondent was of a kind that significantly impacted the applicant’s terms and conditions of employment and constituted a breach of employment conditions.[91]
[91] See Eg: Benge & Anor v Bluescope Steel (AIS) (No 2) (2020) 72 AILR 103-152; [2020] FCCA 515; The Australian Workers’ Union v Rail Services Australia (2000) 47 AILR 4-270.
Having established that the changes imposed did result in significant impact to the applicant, I move now to a determination of whether or not the respondent met their obligation to notify and discuss the change prior to implementing it.
The obligation to discuss change and what exactly this is to involve is worded somewhat vaguely in the Agreement. It is reasonable to conclude in this case, however, that a unilateral demotion and transfer in the context of disciplinary proceedings is not what the drafters would have considered reasonable prior to introducing major change. Considering the circumstances of the applicant being, according to his final warning letter, “stood down” from duties at Hakkinen Road, the respondent did not meet its obligations to notify and discuss the change.
Further, I reject the respondent’s position that Clauses 9.2.4, 13.1.3 and 15.6.4 enable the contested action. To make this finding would be to accept that the Agreement was drafted in terms that enabled it to contradict both itself as well as terms of an employment contract. The suggestion by the respondent that transfer by way of disciplinary sanction somehow negated their obligations is also rejected.
Clause 15.6.4 – Mixed functions
Clause 15.6.4 effectively states that an employee’s pay level should not be reduced in situations in which they might be required to temporarily perform duties at a lower classification.
The respondent argued that the lack of express prohibition within the Clause could be construed as a contemplation by the drafters that the employee’s entitlements, even in relation to pay, could be amended if justified as a disciplinary sanction. For the reasons already explained above, the principles that govern interpretation of agreements and awards do not support this argument and I reject it.
The fact that the applicant had previous warnings and the action taken was seen as appropriate ‘corrective measures’ by the respondent does not result in the respondent being given a ‘green light’ to make unilateral amendments to express terms set out in the employment contract. Nor does the applicant’s performance history provide a triggering effect to amend various employment conditions under the Enterprise Agreement. The Agreement does not expressly provide for unilateral changes to pay levels, responsibility classifications or work locations and no implied terms permitting such conduct can be imported, and the employment contract which might constrain such action, does just that.
Breach of FW Act ss 50 and 323
I am satisfied that the respondent’s actions amounted to a breach of the Enterprise Agreement. The applicant has established that the respondent committed breaches of ss 50 and 323 of the FW Act.
I make the declarations and orders to be found at the beginning of these reasons.
I certify that the preceding one hundred and seven (107) paragraphs are a true copy of the reasons for judgment of Judge Heffernan
Associate:
Date: 1 March 2021
[7] Ibid.
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