Hull v Hertel Modern Pty Ltd - [2017] FCCA 2579

FEDERAL CIRCUIT COURT OF AUSTRALIA

HULL & ANOR v HERTEL MODERN PTY LTD

[2017] FCCA 2579

Catchwords:

INDUSTRIAL LAW – Workplace rights under the Fair Work Act 2009 (Cth) –rebuttable presumption by operation of s.361 of the Act that respondent took adverse action – was the applicant made redundant as a result of exercising a workplace right – exercise of workplace right did not result in redundancy – no breach of s.340 of the Act by respondent – application dismissed.

Legislation:

Fair Work Act 2009 (Cth), ss.185, 340, 341, 342, 361, 546

Cases cited:

Board of Bendigo Regional Institute of Technical & Further Education v Barclay (2012) 248 CLR 500; [2012] HCA 32

Construction, Forestry, Mining & Energy Union v BHP Coal Pty Ltd (2014) 253 CLR 243; [2014] HCA 41

Murrihy v Betezy.com.au Pty Ltd (2013) 238 IR 307; [2013] FCA 908
Shea v TRUenergy Services Pty Ltd (No.6) (2014) 242 IR 1; [2014] FCA 271

Victoria (Office of Public Prosecutions) v Grant (2014) 246 IR 441; [2014] FCAFC 184

First Applicant:

D’ARCY HULL

Second Applicant:

AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING & KINDRED INDUSTRIES UNION KNOWN AS THE AUSTRALIAN MANUFACTURING WORKERS’ UNION (“THE AMWU”)

Respondent:

HERTEL MODERN PTY LTD

File Number:

PEG 466 of 2016

Judgment of:

Judge Smith

Hearing date:

14 August 2017

Date of Last Submission:

14 August 2017

Delivered at:

Sydney and Perth by video link

Delivered on:

2 November 2017

REPRESENTATION

Counsel for the Applicants:

Mr T Borgeest

Solicitors for the Applicants:

Turner Freeman Lawyers

Solicitors for the Respondent:

Ms R Harding, Jackson McDonald

ORDERS

The application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 466 of 2016

D’ARCY HULL

First Applicant

AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING & KINDRED INDUSTRIES UNION KNOWN AS THE AUSTRALIAN MANUFACTURING WORKERS’ UNION (“THE AMWU”)

Second Applicant

And

HERTEL MODERN PTY LTD

Respondent

REASONS FOR JUDGMENT

The first applicant, Mr Hull, was employed as a sheetmetal worker by the respondent (Hertel) to undertake work on the Gorgon liquefied natural gas construction project on Barrow Island in Western Australia (Project). Mr Hull is a member of the second applicant (AMWU). During the course of his employment on Barrow Island, Mr Hull made a number of complaints concerning offensive and racist conduct by one of his co-workers.
In making those complaints, Mr Hull was exercising a workplace right within the meaning of sub-s.341(1)(c) of the Fair Work Act 2009 (Cth) (Act).
On 1 July 2016, Hertel was notified by the manager of the Project on Barrow Island that it had to make a number of redundancies. Mr Hull was included amongst those who were made redundant on 9 July 2016 and his employment by Hertel was terminated on that day.
Mr Hull claims in these proceedings that his employment was terminated because he had made complaints about his co-worker and a foreman. Mr Hull says that for this reason Hertel breached s.340 of the Act; is liable to pay any…

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: [2017] FCCA 2579
Decision Date: 2 November 2017

CaseChat Overview and Summary

Hull (the applicant) brought proceedings against Hertel Modern Pty Ltd (the respondent) in the Federal Circuit and Family Court of Australia, alleging that the respondent had taken adverse action against her by making her redundant, in contravention of section 340 of the *Fair Work Act 2009* (Cth). The applicant contended that her redundancy was a consequence of her having exercised a workplace right.

The central legal issue before the Court was whether the respondent had taken adverse action against the applicant by reason of her exercising a workplace right, specifically whether the applicant's redundancy was a result of her having exercised such a right. This required the Court to consider the operation of the rebuttable presumption established by section 361 of the *Fair Work Act 2009* (Cth), which presumes that a respondent has taken adverse action for a prohibited reason unless the respondent proves otherwise.

Judge Smith found that the applicant had not established that her redundancy was a result of her exercising a workplace right. The Court determined that the respondent had discharged the onus placed upon it by section 361 of the Act, demonstrating that the redundancy was due to genuine operational reasons and not in retaliation for the applicant's exercise of a workplace right. Consequently, the Court concluded that there was no breach of section 340 of the Act by the respondent.

The application was dismissed.

Orders