Goswami v BPL Adelaide Pty Ltd - [2021] FCCA 302

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
Amcor Ltd v CFMEU [2005] HCA 10
Andrew Charlton Kenneth v Eastern Australia Airlines Pty Ltd [2006] PR972773
Australian Colliery Staff Association v Queensland Mines Rescue Service [1999] FCA 395

Baltic Shipping Co v Dillon [1993] HCA 4
Benge & Anor v Bluescope Steel (AIS) (No 2) [2020] FCCA 515
BP Refinery (Westernport) Pty Ltd v Hasting Shire Council (1978) 52 ALJR 20
Byrne & Frew v Australian Airlines Ltd (1995) 131 ALR 410
Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 347
Con-Stan Industries of Australia Pty Ltd v Norwich Winterthur (Australia) Ltd [1986] HCA14; (1986) 160 CLR 226
Earney v Australian Property Investment Strategic Pty Ltd [2010] VSC 621
Fardell v Coats Hire Operations Ltd (2010) 201 IR
Hawkins v Clayton (1988) 164 CLR 539
Hirsch v Zinc Corporation Ltd (1917) 24 CLR 34
Jones v Associated Tunnelling Co Ltd [1981] IRLR 477
Kucks v CSR Ltd (1996) 66 IR 182
National Union of Workers and Australian Pacific Paper Products [2007] AIRC 988
Russell v The Trustees of the Roman Catholic Church for the Archdiocese of Sydney [2007] NSWSC 104
The Australian Workers’ Union v Rail Services Australia (2000) 47 AILR 4-270
Western v Union des Assurances de Paris (1996) 88 IR 259

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] FCCA 302
Decision Date: 1 March 2021

CaseChat Overview and Summary

In *Goswami v BPL Adelaide Pty Ltd*, heard by Judge Heffernan, the dispute concerned alleged contraventions and breaches of the *Fair Work Act 2009* (Cth) by the respondent employer. The applicant, a Distribution Employee Level 3, alleged that following an incident on 5 March 2019, the respondent unilaterally demoted him, changed his employment classification, and transferred him to a different work site without consultation. The proceedings were bifurcated, with the court first determining liability.

The legal issues before the court were whether the respondent had breached sections 50 and 323 of the *Fair Work Act 2009* (Cth). Specifically, the court was required to determine if the disciplinary action taken by the respondent exceeded the scope permitted by Clause 11 of the relevant Enterprise Agreement, if the applicant was not paid correctly as a Level 3 Distribution employee under Clause 15.1 of the Enterprise Agreement, and if the respondent failed to consult the applicant before changing his work location from the Hakkinen Road site to the Moss Road site.

The court found that the respondent had committed breaches of sections 50 and 323 of the *Fair Work Act 2009* (Cth). This was based on the determination that the disciplinary action taken was beyond the permissible scope of Clause 11 of the Enterprise Agreement, that the applicant was not paid in accordance with his Level 3 Distribution employee classification as required by Clause 15.1, and that the respondent failed to consult the applicant before transferring him to the Moss Road site. The matter was adjourned for further consideration of damages and penalties.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Background and agreed facts Materials relied upon Summary of alleged contraventions and breaches Submissionsa.Terms of the employment contract and allegations of breachi.Location and lost opportunity for overtimeii.Reduction in pay and level of responsibility Considerationa.Terms of the employment contract and allegations of breachi.Locationii.Reduction in pay and level of responsibility 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. 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. 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.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Considerationa.Terms of the employment contract and allegations of breachi.Locationii.Reduction in pay and level of responsibility 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. 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. 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. 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.