FEDERAL COURT OF AUSTRALIA
Helal v McConnell Dowell Constructors (Aust) Pty Ltd (No 3) [2011] FCA 1344
Citation: Helal v McConnell Dowell Constructors (Aust) Pty Ltd (No 3) [2011] FCA 1344 Parties: LINDA HELAL v MCCONNELL DOWELL CONSTRUCTORS (AUST) PTY LTD (ACN 002 929 017) File number: VID 632 of 2010 Judge: TRACEY J Date of judgment: 25 November 2011 Catchwords: INDUSTRIAL LAW – labour supplied by respondent to sub-contractor – building employees of sub-contractor not regulated by industrial agreement governing respondent – whether discriminatory action taken by respondent against employees of sub-contractor – whether such action was taken on ground that employees not covered by particular kind of industrial instrument – ground must be a “substantial and operative reason” for taking action – no discriminatory action found to have occurred Legislation: Building and Construction Industry Improvement Act 2005 (Cth) ss 3, 4, 45,49
Conciliation and Arbitration Act 1904 (Cth) s 5
Disability Discrimination Act 1995 (Cth) s 5
Evidence Act 1995 (Cth) s 191
Federal Court of Australia Act 1976 (Cth) s 21, 31A
Trade Practices Act 1974 (Cth) s 49
Workplace Relations Act 1996 (Cth) s 298KCases cited: Barclay v Board of Bendigo Regional Institute of Technical and Further Education (2011) 191 FCR 212 cited
Cahill v Construction, Forestry, Mining and Energy Union (No 2) (2008) 170 FCR 357 cited, compared
Compaq Computer Australia Pty Ltd v Merry (1998) 157 ALR 1 cited
General Motors Holden Pty Ltd v Bowling (1976) 12 ALR 605
Greater Dandenong City Council v Australian Municipal, Administrative, Clerical and Services Union (2001) 112 FCR 232 cited
Maritime Union of Australia v CSL Australia Pty Ltd (2002) 113 IR 326 referred to
Maritime Union of Australia v Geraldton Port Authority (1999) 93 FCR 34 cited
O’Brien Glass Industries Limited v Cool & Sons Pty Ltd (1983) 48 ALR 625 cited
Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (1998) 195 CLR 1 cited
Protean (Holdings) Limited v American Home Assurance Company [1985] VR 187 compared
Purvis v The State of New South Wales (2003) 217 CLR 92 considered
Rasomen Pty Ltd v Shell Company of Australia Limited (1997) 75 FCR 216 cited
Seymour v Saint-Gobain Abrasives Pty Ltd (2006) 161 IR 9 cited
Trade Practices Commission v George Weston Foods Limited (No 2) (1980) 43 FLR 55 compared
Tru Floor Service Pty Ltd v Jenkins (No 2) (2006) 232 ALR 532 cited
Wood v City of Melbourne Corporation (1979) 26 ALR 430 citedDate of hearing: 17 - 20 October 2011 Place: Melbourne Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 83 Counsel for the Applicant: Mr J Snaden Solicitor for the Applicant: Australian Government Solicitor Counsel for the Respondent: Mr S Wood and Mr M Follett Solicitor for the Respondent: Ai Group Legal
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
VID 632 of 2010
BETWEEN: LINDA HELAL
ApplicantAND: MCCONNELL DOWELL CONSTRUCTORS (AUST) PTY LTD (ACN 002 929 017)
Respondent
JUDGE:
TRACEY J
DATE…
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Details
- Case
- [2011] FCA 1344
- Decision Date
CaseChat Overview and Summary
This case involves Helal, who was an employee of Hanlon Labour Services (HLS), which provided labour to Hanlon Industries, a sub-contractor of McConnell Dowell Constructors (Aust) Pty Ltd (McConnell Dowell). The dispute arose from McConnell Dowell's decision to withdraw permission for Hanlons to perform welding work at the Corio Quay site, leading to additional costs for Hanlons. The matter was heard in the Federal Court of Australia.
The primary legal issue before the court was whether McConnell Dowell's actions constituted discriminatory conduct against HLS employees. The court had to determine if McConnell Dowell's decision to withdraw permission for Hanlons to perform welding work on-site was discriminatory and if it was based on the fact that HLS employees were not covered by a particular industrial instrument. Under the Fair Work Act 2009 (Cth), such a ground must be a "substantial and operative reason" for taking the action.
The court found that McConnell Dowell did not engage in discriminatory conduct against HLS. The court reasoned that while the employees of Hanlons were not covered by the same industrial agreement as McConnell Dowell's employees, there was no evidence that this was a substantial and operative reason for McConnell Dowell's decision. The court held that McConnell Dowell had the right to withdraw permission for Hanlons to perform welding work on-site for reasons other than the lack of an industrial instrument covering HLS employees. As such, the court dismissed the application.
The court's decision was based on the lack of evidence that the lack of an industrial instrument covering HLS employees was a substantial and operative reason for McConnell Dowell's actions. The court concluded that McConnell Dowell did not engage in discriminatory conduct against HLS and ordered that the application be dismissed.
The primary legal issue before the court was whether McConnell Dowell's actions constituted discriminatory conduct against HLS employees. The court had to determine if McConnell Dowell's decision to withdraw permission for Hanlons to perform welding work on-site was discriminatory and if it was based on the fact that HLS employees were not covered by a particular industrial instrument. Under the Fair Work Act 2009 (Cth), such a ground must be a "substantial and operative reason" for taking the action.
The court found that McConnell Dowell did not engage in discriminatory conduct against HLS. The court reasoned that while the employees of Hanlons were not covered by the same industrial agreement as McConnell Dowell's employees, there was no evidence that this was a substantial and operative reason for McConnell Dowell's decision. The court held that McConnell Dowell had the right to withdraw permission for Hanlons to perform welding work on-site for reasons other than the lack of an industrial instrument covering HLS employees. As such, the court dismissed the application.
The court's decision was based on the lack of evidence that the lack of an industrial instrument covering HLS employees was a substantial and operative reason for McConnell Dowell's actions. The court concluded that McConnell Dowell did not engage in discriminatory conduct against HLS and ordered that the application be dismissed.
Orders
Orders of the court
1. The application be dismissed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011
Background
Background to the litigation
The issues in dispute are narrowly confined. This is because most of the relevant facts are not in dispute.THE FACTUAL BACKGROUND The parties filed a statement of agreed facts pursuant to s 191 of the Evidence Act 1995 (Cth) (“the Evidence Act”). The parties are agreed that:“1. Corio Quay, just north of the city of Geelong, Victoria, forms part of what is known as the Port of Geelong. It is owned by Ports Pty Ltd, as trustee for the Port of Geelong Unit Trust. 2. The beneficiaries of the Port of Geelong Unit Trust are Hastings Funds Management, Asciano Pty Ltd and PREEF Asset Management.3. Geelong Port Pty Ltd is a subsidiary of Asciano Pty Ltd. By agreement with Ports Pty Ltd (as trustee for the Port of Geelong Unit Trust), Geelong Port Pty Ltd operates the Port of Geelong.4. Tenova SEMF Pty Ltd and McConnell Dowell Constructors (Aust) Pty Ltd (McConnell Dowell) were partners in a joint venture that had been engaged by Ports Pty Ltd, in or about October 2008, to design and build the Corio Quay North No 4 Ship Loader project (Project).5. In or about February 2009, construction works on the Project commenced at the Corio Quay site.6. By an agreement entered into in about December 2008, McConnell Dowell engaged Hanlon Industries Pty Ltd (Hanlons) to fabricate, paint, assemble and deliver to the Corio Quay site a network of structural steel beams that would, ultimately, form part of the extension of the Corio Quay North wharf component of the Project (Structural Steel).7. In March 2009, McConnell Dowell (by its Project Manager, Adam Stein) granted Hanlons permission to carry out welding work associated with the assembly of the Structural Steel, at the Corio Quay site – specifically, that work involved the creation of five steel “bays”, each consisting of twin girders with tubular bracing at each end (Welding Work).8. In early May 2009, Hanlons arranged for delivery of fabricated and painted, but unassembled, steel beams to the Corio Quay site (Unassembled Beams).9.On or about Thursday, 7 May 2009, Hanlons commenced performing the Welding Work at the Corio Quay site. Specifically, two workers attended at the Corio Quay site for the purposes of performing the Welding Work (Workers). The Workers were employees of Hanlon Labour Services Pty Ltd, which was a company related to Hanlons and who provided the latter’s labour.10.The Workers performed the Welding Work at the Corio Quay site on at least Thursday, 7 May, Friday, 8 May and Monday, 11 May 2009.11.On Tuesday, 12 May 2009, McConnell Dowell, by letter from Mr Stein, withdrew its permission for Hanlons to perform the Welding Work at the Corio Quay site. That letter was sent at the direction of McConnell Dowell’s Southern Region Manager, Civil and Marine, Mr Sam Kapetanas. Mr Kapetanas did not then know that the Workers were employed by Hanlon Labour Services Pty Ltd.12.By 12 May 2009, Hanlons had completed the assembly of one of the five bays and had commenced work on another.13. After receipt of Mr Stein’s 12 May 2009 letter, Hanlons arranged for the relocation of the Unassembled Beams that were to be used on the three remaining “bays” to its workshop in Geelong, where they were assembled and, later, delivered back to the Corio Quay site.14. As a consequence of having to complete the assembly of the Unassembled Beams at its Geelong workshop and to transport completed “bays” back to the Corio Quay site, Hanlons incurred some additional costs.15. Between 12 May and 27 May 2009, McConnell Dowell determined that some of the paintwork on the completed “bays” required additional blasting and repainting. At the insistence of McConnell Dowell, this work was performed by Action Alliance, not Hanlons’ nominated painting contractor. This additional blasting and repainting work also imposed some additional costs on Hanlons.”CONSTRUCTION OF SUB-SECTION 45(1)
Evidence
Evidence Before The Court
As a result there were only two contentious issues which remained. They were:·whether the applicant had adduced any or any sufficient evidence to support the claim that McConnell Dowell had “discriminated against” HLS; and ·if so, whether such discriminatory action was taken “on the ground that” the employment of HLS’ employees was not covered by a particular kind of industrial instrument.THE APPLICANT’S EVIDENCE The only witness called by the applicant was Mr Anthony Bradford. Mr Bradford had, at relevant times, been the General Manager of Hanlons. He confirmed that Hanlons had been engaged by McConnell Dowell to fabricate, paint, assemble and deliver structural steel beams for the project. The original arrangement had been that all work would be conducted off-site and that the steel beams would be delivered to the project ready for incorporation in the extension of the wharf. In about early March Mr Bradford had approached Mr Stein and proposed that some of the assembly work might take place near to where the fabricated beams were to be installed. He had discussed with Mr Stein the possibility of this work being carried out in one of the sheds on the site but sufficient space was not available. They agreed that the work could be undertaken outdoors on one of the piers. Mr Stein confirmed the revised arrangements in an email which he sent to Mr Bradford on 26 March 2009. That e-mail (formal parts omitted) read:“With respect to welding bracing to WBs in Shed 3 on site, we advise that a few conditions will need to be met as follows:· Safe work method statements to be submitted and approved for welding, blasting and painting activites (sic) to ensure work can be carried out safely and all involved personnel will be required to sign on to these procedures· Suitable protection screens will need to be erected· Attendance by your personnel will be required at the brief daily start up meetings (7am) and fortnightly toolbox meetings· Any plant or machinery required for the work will need to arrive with records of risk assessments completed· Site personnel will need to complete both GeelongPort (sic) Induction and McConnekll (sic) Dowell inductions prior to work commencing (this can be done at any time prior to the work if required)· Site personnel will require the industry Red Card· Requirements of attached Site Agreement need to be allowed forPermission to carry out the activities on site is granted on the basis that compliance with the above does not constitute a variation under your existing Purchase Order contract.” Hanlons commenced on site work pursuant to these arrangements on about 7 May 2009. Two employees of HLS attended and performed welding work on that and subsequent days. Mr Bradford attended the site once or twice on each day on which work was being performed. At no time did Mr Stein or any other McConnell Dowell employee complain to Mr Bradford about the way in which the HLS employees were performing their work. Mr Bradford was, as a result, surprised to receive a letter from Mr Stein dated 12 May 2009 in which Mr Stein effectively rescinded the arrangement for the performance of work on site. The letter (formal parts omitted) read:“Re: On Site WeldingWe refer to the terms of the your (sic) Purchase Order relating to steel fabrication, coating and delivery of access bridge and ship loader platform structural steel. The original requirement of the purchase order was to deliver all steel complete and inclusive of all freight charges to site.Whilst we have agreed to allow site welding of bracing to girder beams on site, our management has reviewed the decision following your request to complete your scope of works on site due to the handling difficulties in your workshop of the large braced girder bays. Please be advised thus:“You have advised us that you do not possess any current industrial instrument which covers your workforce in the execution of any site work. You have been engaged by MCD to supply only fabricated steelwork to the Corio project, but not for work to be carried out on site. Accordingly, we will not require your workforce on-site until further notice.”We will complete this work direct on site and advise costs to complete to your accountWe thank-you for your understanding in this matter.”
Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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