Jones v Queensland Tertiary Admissions Centre Ltd (No 2)
[2010] FCA 399
•29 April 2010
FEDERAL COURT OF AUSTRALIA
Jones v Queensland Tertiary Admissions Centre Ltd (No 2) [2010] FCA 399
Citation: Jones v Queensland Tertiary Admissions Centre Ltd (No 2) [2010] FCA 399 Parties: ELIZABETH LOUISE JONES v QUEENSLAND TERTIARY ADMISSIONS CENTRE LTD (ACN 050 542 633) File number: QUD 274 of 2009 Judge: COLLIER J Date of judgment: 29 April 2010 Catchwords: INDUSTRIAL LAW – complaints against applicant CEO by employees and union for alleged bullying of staff – applicant represented employer in enterprise agreement negotiations – application to prevent respondent employer from taking action on basis of allegations and subsequent independent investigation – application for compensation and pecuniary penalty for contravention of the Fair Work Act 2009 (Cth) – application for declaration that respondent in breach of contract for failing to accord applicant natural justice – application for declaration that respondent estopped from denying applicant natural justice – whether breach by employer of s 340(1) Fair Work Act 2009 (Cth) – whether applicant had a workplace right under s 341 Fair Work Act 2009 (Cth) – whether applicant had a role or responsibility under a workplace law or workplace instrument pursuant to s 341(1)(a) Fair Work Act 2009 (Cth) – whether respondent appointed applicant a bargaining representative under s 176, s 178 Fair Work Act 2009 (Cth) – whether applicant was able to initiate or participate in a process or proceedings under a workplace law or workplace instrument pursuant to s 341(1)(b) Fair Work Act 2009 (Cth) – whether respondent has taken (or has proposed to take) adverse action against applicant – whether adverse action taken because of applicant’s workplace right – onus of proof – identification of effective decision-makers in respondent in light of General Motors Holden Pty Ltd v Bowling (1975) 12 ALR 605 – whether variation to applicant’s employment contract – whether natural justice provided to the applicant – whether detrimental reliance by applicant on representation that natural justice would be provided by respondent
Held: application dismissed
Legislation: Fair Work Act 2009 (Cth) ss 3, 12, 176(1), 178, 340, 341, 342, 345, 360, 361, 387, 545(2), 546
Workplace Relations Act 1996 (Cth) s 298K(1)
Explanatory Memorandum, Fair Work Bill 2008 (Cth) paras 697, 714, 716, 1370, 1371, 1386, 1457Cases cited: Agricultural & Rural Finance Pty Ltd v Gardiner [2008] 238 CLR 570 cited
Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 cited
Atkins v St Barbara Mines (1996) 22 ACSR 187 cited
Australian Municipal, Administrative, Clerical and Services Union v Queensland Tertiary Admissions Centre Ltd (2009) 185 IR 371 cited
Australian Securities and Investments Commission v Rich [2003] NSWSC 85 cited
Barclay v Board of Bendigo Regional Institute of Technical and Further Education [2010] FCA 284 cited
BHP Iron Ore Pty Ltd v Australian Workers’ Union (2000) 97 IR 266 cited
Commonwealth of Australia v Verwayen (1990) 170 CLR 394 cited
Community and Public Sector Union v Telstra Corporation Ltd [2001] 107 FCR 93 cited
Construction, Forestry, Mining and Energy Union v Coal and Allied Operations Pty Ltd (1999) 140 IR 131 cited
Elliott v Kodak Australasia Pty Ltd (2001) 108 IR 23 cited
Federal Supply Co v Angehrn (1910) 103 LT 150 (PC) cited
Finance Sector Union of Australia v Australia & New Zealand Banking Group Limited [2002] FCA 631 cited
Fingleton v R (2005) 227 CLR 166 cited
General Motors Holden Pty Ltd v Bowling (1976) 12 ALR 605 discussed
Greater Dandenong Council v Australian Municipal, Administrative, Clerical and Services Union (2001) 112 FCR 232 cited
Hely-Hutchinson v Brayhead Ltd [1968] 1 QB 549 applied
Hudson Investment Group Limited v Australian Hardboards Limited [2005] NSWSC 716 cited
Jones v Queensland Tertiary Admissions Centre Ltd [2009] FCA 1382 related
Kimpton v Minister for Education of Victoria (1996) 65 IR 317 cited
Kioa v West (1985) 159 CLR 550 cited
McPherson v Dodd [2004] VSC 153 cited
Neilson v JSM Trading Pty Limited t/a Workhire Pty Ltd [2003] AIRC 331 cited
Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (No 3) (1998) 195 CLR 1 applied
Player v Isenberg [2002] NSWCA 186 cited
Police Federation of Australia v Nixon (2008) 168 FCR 340 discussed
Poliwka v Heven Holdings Pty Ltd (No 2) (1992) 8 ACSR 747 cited
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 cited
Rankin v Marine Power International Pty Ltd (2001) 107 IR 117 cited
Rojas v Esselte Australia Pty Ltd (No 2) [2008] 177 IR 306 cited
State Bank of Victoria v Parry (1990) 2 ACSR 15 cited
Swiss Screens (Australia) Pty Ltd v Burgess (1987) 11 ACLR 756 cited
The State of South Australia v O’Shea (1987) 163 CLR 378 cited
United Firefighters Union of Australia v Metropolitan Fire and Emergency Services Board (2003) 198 ALR 466 cited
Victorian Employer’s Federation v Federal Commissioner of Taxation (1957) 96 CLR 390 citedHalsbury’s Laws of Australia (Butterworths 1999) Vol 1(2)
Date of hearing: 1-5, 8-10, 13, 24-25 February 2010 Place: Brisbane Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 263 Counsel for the Applicant: Mr M Spry Solicitor for the Applicant: Cooper Grace Ward Counsel for the Respondent: Mr J Murdoch SC Solicitor for the Respondent: Minter Ellison
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
QUD 274 of 2009
BETWEEN: ELIZABETH LOUISE JONES
ApplicantAND: QUEENSLAND TERTIARY ADMISSIONS CENTRE LTD (ACN 050 542 633)
Respondent
JUDGE:
COLLIER J
DATE OF ORDER:
29 APRIL 2010
WHERE MADE:
BRISBANE
THE COURT ORDERS THAT:
The application be dismissed.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
QUD 274 of 2009
BETWEEN: ELIZABETH LOUISE JONES
ApplicantAND: QUEENSLAND TERTIARY ADMISSIONS CENTRE LTD (ACN 050 542 633)
Respondent
JUDGE:
COLLIER J
DATE:
29 APRIL 2010
PLACE:
BRISBANE
REASONS FOR JUDGMENT
On 25 November 2009 I made interlocutory orders restraining QTAC from taking any action against Ms Jones until the hearing of the substantive application filed in these proceedings: Jones v Queensland Tertiary Admissions Centre Ltd [2009] FCA 1382. Background facts to these proceedings are outlined in Jones [2009] FCA 1382 at [13]-[14] and in the Agreed Chronology filed 1 February 2010. In summary, QTAC processes student applications in Queensland for admission to undergraduate and diploma courses offered by tertiary institutions in that State, as well as applications to some tertiary institutions interstate. It is not in contention that members of QTAC are tertiary institutions, the majority of which are located in Queensland. Ms Jones, who is the Chief Executive Officer of QTAC, has been the subject of serious bullying allegations by individual employees of QTAC and the Australian Services Union (“ASU”). The members of QTAC wish to hold a general meeting to consider an independent report, commissioned by the Chair of the QTAC Board of Directors, investigating those allegations (a report entitled “Report on Grievances against CEO, QTAC” dated 28 September 2009 produced by Ms Carol Watson, hereinafter referred to as “the Carol Watson Report”). My interlocutory orders of 25 November 2009 currently prevent the holding of this meeting or other action against Ms Jones by QTAC in reliance upon the Carol Watson Report or other documentation identified in those orders.
It is clear from both the pleadings and the affidavit material filed in these proceedings that Ms Jones believes QTAC’s actions have been, and continue to be, motivated by pressure brought to bear upon QTAC by the ASU. More particularly, Ms Jones claims that the ASU has orchestrated a campaign against her relevant to her conduct in the 2009 enterprise bargaining negotiations as spokesperson for QTAC, and that in taking adverse action against her QTAC has yielded and continues to yield to this campaign in contravention of the Fair Work Act 2009 (Cth) (“the Act”). Ms Jones also claims that QTAC promised that it would engage in fair processes to investigate the claims against her, and that there has been either a variation to her contract of employment to that effect, or alternatively she has acted to her detriment in reliance on QTAC’s representation to that effect.
I do not find Ms Jones’ claims substantiated. In my view the application should be dismissed. My reasons for so finding follow.
MS JONES’ CLAIM
By amended application filed 18 December 2009 Ms Jones seeks relief for adverse action taken against her, and/or proposed to be taken against her, by QTAC because of her role and/or participation in negotiations for an enterprise agreement, and for breach of her contract of employment.
To the extent that Ms Jones has a statutory cause of action based on the fair work legislation, Ms Jones relies on s 340 of the Act which provides as follows:
(1) A person must not take adverse action against another person:
(a) because the other person:
(i) has a workplace right; or
(ii) has, or has not, exercised a workplace right; or
(iii) proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right; or
(b) to prevent the exercise of a workplace right by the other person.
Note: This subsection is a civil remedy provision (see Part 4 1).
(2) A person must not take adverse action against another person (the second person) because a third person has exercised, or proposes or has at any time proposed to exercise, a workplace right for the second person's benefit, or for the benefit of a class of persons to which the second person belongs.
Note: This subsection is a civil remedy provision (see Part 4 1).
As final relief, Ms Jones claims:
1.Pursuant to section 545(2)(a) of the Fair Work Act 2009 (Cth), an injunction restraining QTAC from taking any action against her in reliance upon:
(a)any allegations against her made by the ASU in its letter to QTAC dated 7 August 2009; and/or
(b)the complaint made against her by Nicola Bowes dated 7 August 2009; and/or
(c)the anonymous complaint made against her dated 11 August 2009; and/or
(d)the anonymous complaint made against her dated 12 August 2009; and/or
(e)the complaint made against her by Danelle Bayley dated 13 August 2009; and/or
(f)any allegations against her made by the ASU in its letter to QTAC dated 14 August 2009; and/or
(g)the Carol Watson Report; and/or
(h)Walter Williams’ diary notes forwarded to Ms Jones by Professor Deborah Terry on about 30 October 2009.
2.Pursuant to section 545(2)(b) of the Act, QTAC pay Ms Jones compensation for loss suffered by her because of QTAC’s contravention of the Act.
3.Pursuant to section 546 of the Act, QTAC pay Ms Jones a pecuniary penalty for QTAC’s contravention of the Act.
4.A declaration that QTAC is in breach of the contract of employment between Ms Jones and QTAC by failing to accord Ms Jones natural justice in the purported investigation into the allegations and complaints against her.
5.A declaration that QTAC is estopped from denying that it is required to afford Ms Jones natural justice in any decisions affecting Ms Jones’ employment.
6.A declaration that QTAC is estopped from relying on the Carol Watson Report.
7.A declaration that QTAC is estopped from relying on the Walter Williams diary notes referred to in paragraph 1(h).
More specifically, in her Amended Statement of Claim filed 18 December 2009 Ms Jones pleads inter alia:
·In 2009 Ms Jones had a workplace right because she was the bargaining representative for QTAC in negotiations for an enterprise agreement and/or she participated in a process under a workplace law, namely the making of an enterprise agreement within the meaning of s 341(1)(b) and s 341(2)(e) of the Act.
·During the negotiations for the enterprise agreement QTAC received a number of complaints or allegations against Ms Jones.
·Following those complaints or allegations QTAC has taken adverse action against Ms Jones. Further or alternatively, QTAC has taken adverse action against Ms Jones in that it has altered her position to her prejudice, or QTAC has threatened to take adverse action against Ms Jones.
·QTAC took adverse action against Ms Jones because Ms Jones had a workplace right.
·The employment contract between QTAC and Ms Jones was varied on or about 29 October 2009 to include an express term that any decision with respect to Ms Jones’ employment would not be made without a fair process, including the provision of natural justice. Ms Jones acted in reliance on that representation. In breach of that term, QTAC has failed or refused to provide Ms Jones with a fair process and/or to accord Ms Jones natural justice.
ISSUES FOR DECISION IN THIS CASE
Generally, Ms Jones’ Amended Statement of Claim identifies three causes of action, which can be described as follows:
·the “workplace right” cause of action;
·the “breach of contract” cause of action; and
·the “estoppel” cause of action.
The issues which require decision in respect of these causes of action are:
·In relation to the workplace right cause of action:
1.Whether Ms Jones had a workplace right under s 341 of the Act; and if so
2.Whether QTAC has taken (or proposes to take) adverse action against Ms Jones; and if so
3.Whether adverse action was taken (or is proposed to be taken) against Ms Jones because of her workplace right.
·In relation to the breach of contract cause of action:
1.Whether Ms Jones’ employment contract was varied by QTAC’s letter to Ms Jones of 29 October 2009; and if so
2.Whether such variation included an express term that any decision with respect to Ms Jones would not be made without a fair process, including the provision of natural justice; and if so
3.Whether QTAC breached such a term.
·In relation to the estoppel cause of action :
1.Whether QTAC represented to Ms Jones that any decision with respect to her employment would not be made without a fair process, including the provision of natural justice; and if so
2.Whether Ms Jones relied on the representation to her detriment; and if so
3.Whether Ms Jones suffered any detriment as a result of her reliance.
THE WORKPLACE RIGHT CAUSE OF ACTION
It was common ground between the parties that Ms Jones bears the onus of proving she has a workplace right under the Act. However once an employee has established that he or she has a workplace right, and has been the subject of adverse action by the employer, the onus of proof shifts to the employer in respect of the reason for the adverse action by the employer. At this point the onus is on the employer to demonstrate that the adverse action taken against the employee was not for a reason prohibited by the Act.
That the employee is required to first prove the existence of objective facts which are said to provide a basis for the alleged adverse action, before the onus shifts to the employer in respect of the prohibited reason, was explained by Branson J in Construction, Forestry, Mining and Energy Union v Coal and Allied Operations Pty Ltd (1999) 140 IR 131 at [161]-[162] and Moore J in Rojas v Esselte Australia Pty Ltd (No 2) [2008] 177 IR 306 at 321-322 [49]-[50]. To paraphrase observations of Moore J in Rojas [2008] 177 IR 306 at 322, it is not sufficient for Ms Jones to simply allege that she had a workplace right and that she was the subject of adverse action – rather on the assumption that Ms Jones is able to prove these allegations, the burden is then cast on to QTAC to prove that adverse action was not taken against Ms Jones because of her workplace right for the purposes of s 340 and s 361 of the Act.
1. Did Ms Jones have a workplace right under section 341 of the Act?
Submissions of Ms Jones
Ms Jones’ submissions as to whether she had a workplace right may be summarised as follows:
·her workplace right arises pursuant to s 341(1)(a) and/or (b) of the Act;
·in relation to s 341(1)(a):
oMs Jones workplace right arises from her “role or responsibility” as QTAC’s appointed bargaining representative under the Act;
oMs Jones’ appointment as a bargaining representative in writing satisfied s 176(1)(d) of the Act;
othe Act does not prevent the appointment of Ms Jones, the Chief Executive Officer and an employee of QTAC, from being QTAC’s bargaining representative;
oMs Jones’ appointment as QTAC’s bargaining representative was confirmed by the QTAC Board, and recorded in the Board minutes of 18 August 2009;
oin correspondence QTAC repeatedly represented that Ms Jones was QTAC’s bargaining representative. Section 345 of the Act prohibits a person from knowingly or recklessly making a false or misleading representation about the workplace rights of another person;
ocontrary to submissions of QTAC, QTAC was not its own bargaining representative for the purposes of the 2009 enterprise agreement negotiations;
olegislation relevant to the appointment of a bargaining representative should not be construed narrowly and pedantically.
·In relation to s 341(1)(b):
oclearly Ms Jones participated in the 2009 enterprise agreement negotiations;
os 341(1)(b) should not be construed narrowly as contended by QTAC.
QTAC’s submissions
QTAC’s submissions as to whether Ms Jones had a workplace right may be summarised as follows:
·Ms Jones was not QTAC’s “bargaining representative” within the meaning of the Act.
·QTAC correspondence referring to Ms Jones as QTAC’s “bargaining representative” should be read as usage of ordinary language rather than employment of technical terms found within the Act.
·Section 176 of the Act contemplates that an employer is its own bargaining representative in enterprise agreement negotiations on non-greenfields sites (s 176(1)(a)), but that an employer can also appoint a person as a bargaining representative (s 176(1)(d)).
·The Act contemplates that, for an employer, any separate bargaining representative appointed would be external to the employer.
·Officers or employees of the employer who act as spokesperson on the employer’s behalf in enterprise agreement negotiations are the human embodiment of the employer itself, and are not “bargaining representatives”.
·Section 178 of the Act requires a bargaining representative to be appointed by written instrument which specifies a date the appointment comes into force. Ms Jones has not been appointed a bargaining representative pursuant to such an instrument.
·The context and statutory purpose of the Act are of utmost importance in interpreting provisions including s 178.
·QTAC was its own bargaining representative in the negotiations as was clear from the bargaining orders made against it – and not Ms Jones – during the negotiations.
·The only “participation” by Ms Jones in the enterprise agreement negotiations was at QTAC’s request and as an incident of her employment as Chief Executive Officer. She did not have a role or responsibility under a workplace law.
Consideration
So far as is relevant in these proceedings, s 341(1) of the Act defines “workplace right” as follows:
(1) A person has a workplace right if the person:
(a) is entitled to the benefit of, or has a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body; or
(b) is able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument; or
(c) …
“Process or proceedings under a workplace law or workplace instrument” is defined by s 341(2) to mean:
(a) a conference conducted or hearing held by FWA;
(b) court proceedings under a workplace law or workplace instrument;
(c) protected industrial action;
(d) a protected action ballot;
(e) making, varying or terminating an enterprise agreement;
(f) appointing, or terminating the appointment of, a bargaining representative;
(g) making or terminating an individual flexibility arrangement under a modern award or enterprise agreement;
(h) agreeing to cash out paid annual leave or paid personal/carer’s leave;
(i) making a request under Division 4 of Part 2 2 (which deals with requests for flexible working arrangements);
(j) dispute settlement for which provision is made by, or under, a workplace law or workplace instrument;
(k) any other process or proceedings under a workplace law or workplace instrument.
It is clear that the workplace right asserted by Ms Jones pursuant to s 341(1)(a) is that she was the bargaining representative of QTAC, which was her role or responsibility in respect of the making of an enterprise agreement within the meaning of s 341(2). It is also common ground that the enterprise agreement the subject of negotiations in 2009 was not a greenfields agreement within the meaning of s 12 of the Act.
It is appropriate to examine the issue whether Ms Jones had a workplace right in two parts – first whether Ms Jones was QTAC’s bargaining representative within the meaning of s 341(1)(a), and second whether Ms Jones had participated in a process or proceedings under a workplace law or workplace instrument pursuant to s 341(1)(b).
Was Ms Jones QTAC’s bargaining representative?
Extensive submissions were made by both parties in these proceedings as to whether Ms Jones was QTAC’s bargaining representative. In considering this issue in light of the facts of this case, the following sub-issues require determination:
·What are the statutory requirements for appointment as a bargaining representative?
·What is the appropriate approach to construction of these provisions?
·What was the process whereby Ms Jones claimed she was appointed QTAC’s bargaining representative?
·Was the process whereby Ms Jones claims she was appointed QTAC’s bargaining representative effective to appoint her to that role?
What are the statutory requirements for appointment as a bargaining representative of an employer?
The relevant provisions of the Act for the purposes of these proceedings came into effect on 1 July 2009.
Section 176(1) of the Act describes the persons who are bargaining representatives for a proposed enterprise agreement that is not a greenfields agreement:
(a) an employer that will be covered by the agreement is a bargaining representative for the agreement;
(b) an employee organisation is a bargaining representative of an employee who will be covered by the agreement if:
(i) the employee is a member of the organisation; and
(ii) in the case where the agreement is a multi enterprise agreement in relation to which a low paid authorisation is in operation--the organisation applied for the authorisation;
unless the employee has appointed another person under paragraph (c) as his or her bargaining representative for the agreement, or has revoked the status of the organisation as his or her bargaining representative for the agreement under subsection 178A(2); or
(c) a person is a bargaining representative of an employee who will be covered by the agreement if the employee appoints, in writing, the person as his or her bargaining representative for the agreement;
(d) a person is a bargaining representative of an employer that will be covered by the agreement if the employer appoints, in writing, the person as his or her bargaining representative for the agreement.
Further, s 178 of the Act identifies other matters relevant to the appointment of a bargaining representative as follows:
Appointment of bargaining representatives--other matters
When appointment of a bargaining representative comes into force
(1) An appointment of a bargaining representative comes into force on the day specified in the instrument of appointment.
(2) A copy of an instrument of appointment of a bargaining representative for a proposed enterprise agreement must:
(a) for an appointment made by an employee who will be covered by the agreement--be given to the employee's employer; and
(b) for an appointment made by an employer that will be covered by a proposed enterprise agreement that is not a greenfields agreement--be given, on request, to a bargaining representative of an employee who will be covered by the agreement.
Regulations may prescribe matters relating to qualifications and appointment
(3) The regulations may prescribe matters relating to the qualifications or appointment of bargaining representative.
To date, the legislature has not by regulation prescribed matters relating to the appointment of bargaining representatives, including forms of appointment.
The following conclusions may be drawn from these provisions so far as concerns the appointment of a bargaining representative by an employer in relation to a proposed enterprise agreement that is not a greenfields agreement:
·It is clear from s 176(1) that an employer is its own “bargaining representative”, although the employer may also appoint a person to be its bargaining representative for the purposes of those negotiations.
·It appears that the employer may remain its own bargaining representative concurrently with the appointment of another bargaining representative (para 714 Explanatory Memorandum to the Fair Work Bill 2008 (Cth)).
·There is no restriction on the face of the legislation as to whom the employer can appoint as its bargaining representative. It seems that an employee, who is not otherwise party to the enterprise agreement negotiations, can be appointed the bargaining representative of the employer.
·Section 176(1)(d) requires that the appointment of the bargaining representative by the employer be in writing.
·Section 178(1) refers to the appointment of the bargaining representative being by an “instrument of appointment”.
·Section 178(1) provides that an appointment of a bargaining representative comes into force on the day specified in the instrument of appointment.
What is the appropriate approach to construction of these provisions?
The object of the Act is found in s 3. Section 3 provides as follows:
The object of this Act is to provide a balanced framework for cooperative and productive workplace relations that promotes national economic prosperity and social inclusion for all Australians by:
(a) providing workplace relations laws that are fair to working Australians, are flexible for businesses, promote productivity and economic growth for Australia's future economic prosperity and take into account Australia's international labour obligations; and
(b) ensuring a guaranteed safety net of fair, relevant and enforceable minimum terms and conditions through the National Employment Standards, modern awards and national minimum wage orders; and
(c) ensuring that the guaranteed safety net of fair, relevant and enforceable minimum wages and conditions can no longer be undermined by the making of statutory individual employment agreements of any kind given that such agreements can never be part of a fair workplace relations system; and
(d) assisting employees to balance their work and family responsibilities by providing for flexible working arrangements; and
(e) enabling fairness and representation at work and the prevention of discrimination by recognising the right to freedom of association and the right to be represented, protecting against unfair treatment and discrimination, providing accessible and effective procedures to resolve grievances and disputes and providing effective compliance mechanisms; and
(f) achieving productivity and fairness through an emphasis on enterprise level collective bargaining underpinned by simple good faith bargaining obligations; and
(g) acknowledging the special circumstances of small and medium sized businesses.
It is clear from s 3 that the objective of the legislature in enacting the Act was to promote fairness, flexibility, productivity, accessibility and effectiveness. This purpose is also clear from Parliamentary Debates introducing the Act, for example comments of the Minister to the effect that the legislation was based “on the enduring principle of fairness while meeting the needs of the modern age” (the Honourable Julia Gillard MP, Minister for Employment and Workplace Relations, Second Reading Speech 25 November 2008 Parliamentary Debates House of Representatives p 11189).
References to the role of “bargaining representative” are repeated throughout the Act. The term is not defined in the Act and is a newly-created role, replacing the role of “bargaining agent” under the previous Workplace Relations Act 1996 (Cth). Paragraph 697 of the Explanatory Memorandum to the Fair Work Bill 2008 (Cth) provided:
Bargaining representatives have a more significant formal role in the bargaining process compared to bargaining agents under the WR Act. Bargaining representatives are entitled to: bargain for enterprise agreements and depending on the type of agreement will usually be entitled to apply for (among other things) protected action ballot orders, bargaining orders, majority support determinations, scope orders and serious breach declarations. Bargaining representatives are also entitled to represent a person in matters before FWA (see clause 596). As part of their responsibilities, bargaining representatives for a single-enterprise agreement and a multi-enterprise agreement to which a low paid authorisation is in operation are required to meet the good faith bargaining requirements set out in subclause 228(1). Non-compliance with the requirements exposes a bargaining representative to bargaining orders. Division 3 also makes clear that an employer must not refuse to recognise or bargain with a bargaining representative.
In my view the legislation referable to the appointment of a bargaining representative in these circumstances should be interpreted liberally. The Act is intended to be accessible to employers large and small, as well as to employees both in their own capacity and through union membership. It is intended to assist relevant parties and facilitate the processes contemplated by the Act, including negotiation of enterprise agreements. The role of bargaining representative is clearly significant, however I consider that, in relation to the circumstances relevant to such appointments, the key factor is that there be attendant certainty upon the creation of the role rather than a requirement of overt formality. So, it must be clear on the face of the relevant document that the position has been created, and a copy of that document must be capable of being given to a bargaining representative of the employee (s 178(2)). Accordingly, for example, I do not consider that reference to “instrument of appointment” in s 178(1) requires that a document purporting to record the appointment of a bargaining representative of an employer be a document of the formality of a deed under seal. Provided the appointment is made in writing, as required by s 176(1)(d), and provided it clearly evidences the creation of the role, the appointment is effective.
Both parties in the course of the proceedings made submissions as to whether, to be effective, the instrument of appointment must specify the date on which it comes into force. In particular, s 178(1) of the Act states:
An appointment of a bargaining representative comes into force on the day specified in the instrument of appointment.
In my view the formal specification of the date of commencement of the role in the instrument of appointment is not a condition precedent to the effectiveness of the appointment itself. I form this view because:
1.The language of s 178(1) does not mandate the effectiveness of the instrument of appointment as dependent on the formal specification of a date of commencement in the instrument itself. The appointment commences on the day specified in the instrument.
2.It is not surprising that the appointment comes into force on the day specified in the instrument of appointment – indeed given the formal role, responsibilities and potential liabilities of the bargaining representative it is important that there be certainty in the date on which the bargaining representative takes up the position. However I consider that the terms of the legislation are met if, as a matter of construction of the instrument of appointment, the date on which the appointment comes into force is evident on the face of the instrument of appointment.
3.It is informative to compare s 178(1) with s 178(2)(b), which requires that a copy of the instrument of appointment must be given, on request, to a bargaining representative of an employee who will be covered by the agreement. It follows from this provision that the appointment must be in a form capable of being given to other parties to the negotiations, and supports the necessity of the appointment being made in writing. By contrast s 178(1) simply provides that the appointment of the bargaining representative comes into operation on the date specified.
4.As a matter of legislative construction I do not think that s 176(1)(d) and s 178(1) should be read together with the result that an instrument of appointment of a bargaining representative is not valid unless, for example, there is a specific statement in the instrument explicitly stating the date of the commencement of appointment of the bargaining representative. While such a statement may be valuable, I do not consider such formality to be required by the legislation. I note in particular the objects of the legislation to which I have earlier referred (cf Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 390-391), including the intention of the legislature that the Act provide accessible and effective procedures for use by employers and employees. A finding that an instrument of appointment is not effective in the absence of such specific statements would, in my view, run contrary to such legislative intention.
What was the process whereby Ms Jones claimed she was appointed QTAC’s bargaining representative?
The documents upon which Ms Jones relies in respect of her claim that she was appointed the bargaining representative of QTAC are:
·The unconfirmed Minutes of a meeting of the Board of Directors of QTAC held on 18 August 2009. It is not in dispute that Ms Jones was present at that meeting. In para 3.4 “Certified Agreement” the minutes state:
The Board discussed a formal complaint which had been made by a staff member against the CEO and agreed on a course of action to be taken by the Chair.
This item was discussed with only Board members and the CEO in attendance. The following documents were tabled:-
(i) correspondence from the Australian Services Union (ASU) to the Chair of the Board dated 7 August 2009;
(ii) correspondence from the Australian Services Union (ASU) to the Chair of the Board dated 14 August 2009
(iii) Australian Services Union (ASU) Log of Claims
The Board confirmed that Ms Jones would continue to be the bargaining representative for QTAC. (reproduced as in original)
·A letter dated 18 August 2009 from Mr Colin McAndrew, then Chair of the QTAC Board, to Ms Julie Bignell, Branch Secretary ASU, Mr McAndrew wrote:
The Board has confirmed that the CEO should continue to be QTAC’s bargaining representative.
This letter followed an earlier letter dated 7 August 2009 from Ms Bignell to Mr McAndrew in which Ms Bignell wrote:
Please advise us of the Board’s position in relation to the appointed Bargaining Representative of QTAC and provide confirmation that an independent investigation will be undertaken as a matter of urgency by the close of business 12 August 2009.
Mr Spry for Ms Jones submitted that the appointment of Ms Jones as QTAC’s bargaining representative took effect:
·on 18 August 2009 and further; or alternatively
·the appointment was confirmed from 1 July 2009 when the Act came into operation (TS p 781 ll 39-42).
Was the process whereby Ms Jones claims she was appointed QTAC’s bargaining representative effective to appoint her to that role?
In my view the process whereby Ms Jones claims she was appointed QTAC’s bargaining representative was effective to appoint her to that role, as of 18 August 2009.
Notwithstanding the powerful arguments submitted by the respondent to the contrary, I form this view for the following reasons.
First and foremost, Mr Colin McAndrew as Chair of the Board of QTAC said, in his letter of 18 August 2009 to Ms Julie Bignell, Branch Secretary of the ASU, that Ms Jones was QTAC’s bargaining representative. So did Professor Deborah Terry in para 7.4 of her letter of 29 October 2009 to Ms Jones and Ms Jones’ solicitors Cooper Grace Ward, which letter was written apparently at a time when the QTAC Board was receiving legal advice specifically in relation to issues raised by Ms Jones. In my view the obvious inference to be drawn from this correspondence is that Ms Jones did indeed occupy this role.
Second, I accept the submission by Mr Spry on behalf of Ms Jones that the letter of 18 August 2009 from Mr McAndrew to Ms Julie Bignell was effective as an instrument of appointment of Ms Jones as bargaining representative, and that the appointment was effective as of 18 August 2009. The text of the letter was as follows:
Dear Ms Bignell
I refer to your letter of 7 and 14 August regarding the QTAC Enterprise Agreement negotiations and your expressed concern about the QTAC CEO.
The QTAC Board received copies of your correspondence at its meeting today and was also notified of the complaint made by Dr Nicola Bowes.
The Board and the CEO are conscious of their respective responsibilities under the Fair Work Act and in regard to health and safety and will certainly fulfil their obligations in both areas.
The Board has confirmed that the CEO should continue to be QTAC’s bargaining representative.
In respect of Dr Bowes’ complaint, the CEO has provided with (sic) a copy of the complaint and requested to provide me with a written response. Once I have received this response I will consider what, if any, action should be taken.
Yours sincerely
A.C. McAndrew
Chair, QTAC BoardThis letter followed the Board meeting of QTAC, where it appears from the minutes – albeit unconfirmed to date – that the Board gave consideration to the role of Ms Jones in the negotiations. The appointment of Ms Jones as bargaining representative, as appeared in the letter of 18 August 2009, was the clear result of a considered decision by the QTAC Board.
Third, although that letter did not specifically state that Ms Jones’ appointment took effect from 18 August 2009, in fact the letter was dated 18 August 2009. For reasons I outlined earlier in this judgment in relation to formal requirements of appointment, I do not consider the letter needed to specifically state that the appointment was effective from 18 August 2009. I consider that the date of the letter was “the date specified in the instrument of appointment” for the purposes of s 178(1).
I note that the letter states that Ms Jones would “continue to be QTAC’s bargaining representative”. The Act had substantially commenced operation only the month prior to the date of the letter. Because all events relevant to these proceedings took place after 18 August 2009 it is not necessary for me to decide whether this letter had – or was capable of having – retrospective operation, so as to vest Ms Jones with the role of bargaining agent prior to 18 August 2009. One possible interpretation which could be given to the circumstances between 1 July 2009 and 18 August 2009 was that the default position recognised in s 176(1)(a) applied, and that during that period QTAC was “its own” bargaining representative, albeit with Ms Jones performing as the “human face” of QTAC in negotiations. Indeed, as para 716 of the Explanatory Memorandum to the Fair Work Bill 2008 (Cth) makes clear, there is no restriction on when a person may appoint a bargaining representative.
Fourth, it could reasonably be interpreted from the letter of 18 August 2009 that the Board was cognisant of the statutory role of bargaining representative and had deliberately chosen to vest Ms Jones with that role. The expression “bargaining representative”, while possibly interchangeable in casual parlance with such terms as “bargaining agent” or “bargaining spokesman”, nonetheless at the time of the letter was a role newly created by the Act. It would be strange to find that Ms Jones was not the bargaining representative when she was specifically identified as such in the letter of 18 August 2009, particularly in light of the statement in Mr McAndrew’s letter that “The Board and the CEO are conscious of their respective responsibilities under the Fair Work Act”. The obvious inference to be drawn from that statement was that QTAC was, indeed, aware of its responsibilities under the Fair Work Act, including its responsibilities in relation to enterprise bargaining negotiations.
Fifth, Mr McAndrew’s letter of 18 August 2009 was in response to, inter alia, a previous letter of 7 August 2009 from Ms Bignell of the ASU, in which Ms Bignell several times referred to Ms Jones as “the appointed Bargaining Representative of QTAC”. It is not disputed in these proceedings that the ASU was a bargaining representative of employees of QTAC for the purpose of the enterprise agreement negotiations. While this description by the ASU in Ms Bignell’s letter could not vest Ms Jones with a role she did not actually hold, nonetheless in my view an inference may be drawn from Mr McAndrew’s letter of 18 August 2009, responding to the ASU’s letter and terminology, that Ms Jones was indeed “the appointed Bargaining Representative of QTAC” for the purposes of the Act.
Sixth, s 178(2) requires that a copy of the instrument of appointment be capable of being given to a bargaining representative of the employee on request by that person. In my view this contemplates that copies (or indeed the original) of the instrument of appointment will also be retained by the employer, including potentially to provide a copy to the bargaining representative of the employer himself or herself. Indeed, while the ASU as bargaining representative of the QTAC employees did not appear to make a request within the meaning of s 178(2), nonetheless it appears that a copy of the letter of 18 August 2009 confirming her appointment was provided to Ms Jones on 18 August 2009. Ms Jones could reasonably assume that the letter meant what it said – namely that she was the bargaining representative of QTAC for the purposes of the Act.
Further, the letter of 18 August 2009 was addressed to the ASU, in its capacity as the bargaining representative of QTAC employees. While not apparently produced strictly in compliance with s 178(2), nonetheless the letter of 18 August 2009 by Mr McAndrew was in response to a request by the ASU for clarification of the position in relation to Ms Jones as “the appointed Bargaining Representative of QTAC”.
Seventh, QTAC contended that the reference by Mr McAndrew in his letter of 18 August 2009 to Ms Jones being QTAC’s bargaining representative was actually “ordinary language”, and that in reality:
·the Board intended that QTAC would be its own bargaining representative; and
·Ms Jones would, in her management role, be the “human face” of QTAC as its spokesperson in the enterprise agreement negotiations.
In my view there is some evidence to support this contention, for example:
·The reference by Mr McAndrew, in his letter to Ms Bignell of 28 August 2009, to Ms Jones being the “Bargaining Agent” of QTAC. An inference may be drawn from this expression that Mr McAndrew was not referring to Ms Jones as QTAC’s “bargaining representative” in the statutory sense;
·Mr McAndrew’s evidence under cross-examination that he considered it part of Ms Jones’ role as Chief Executive Officer to assume responsibility for enterprise agreement negotiations, because the assumption of this responsibility by senior management was the arrangement that operates at universities (TS p 449 ll 4-14); and
·The fact that Fair Work Australia had made orders against QTAC – not Ms Jones as QTAC’s bargaining representative – in respect of the enterprise negotiations on 29 July 2009 (Australian Municipal, Administrative, Clerical and Services Union v Queensland Tertiary Admissions Centre Ltd (2009) 185 IR 371);
·The fact that other staff of QTAC were also involved as spokespersons for QTAC at a particular stage of the enterprise agreement negotiations, namely Ms Pat Smith and Mr Walter Williams on the one occasion they visited the ASU offices in order to resolve anomalies which had been detected in the draft of the enterprise agreement that had been put to the employees for a vote. This visit occurred at a time when Ms Jones was on leave and Ms Smith was Acting CEO.
However in relation to this evidence I consider that:
·The reference by Mr McAndrew to Ms Jones as “bargaining agent” in his letter of 28 August 2009 is equally understandable as an error of terminology. In the same letter Mr McAndrew also demonstrates an awareness of the Act and its predecessor legislation in his reference to the “old industrial relations framework”, which I interpret as a reference to the Workplace Relations Act 1996 (Cth).
·Again, the fact that Professor Terry, presumably with the benefit of legal advice, referred to Ms Jones as QTAC’s bargaining representative at para 7.4 of her letter of 29 October 2009 to Ms Jones and Cooper Grace Ward, suggests that there was no misunderstanding at the level of the QTAC Board and its Chair that Ms Jones was indeed QTAC’s bargaining representative for the purposes of the Act.
·I note Mr McAndrew’s evidence that Ms Jones’ role replicated management functions of senior university staff. However while I accept this evidence, in my view it does not derogate from the apparently considered decision by the Board, as communicated by Mr McAndrew to the ASU, that Ms Jones should be the bargaining representative of QTAC in the enterprise agreement negotiations. The evidence before the Court is that the QTAC Board on 18 August 2009 turned its attention to whether Ms Jones should be the bargaining representative of QTAC, decided that she should be, and this decision was confirmed in Mr McAndrew’s letter of 18 August 2009 (a copy of which was given to Ms Jones).
·I am not persuaded, as submitted by QTAC, that the inference should be drawn from para 714 of the Explanatory Memorandum to the Fair Work Bill 2008 (Cth) that the Act contemplates that, for an employer, any separate bargaining representative appointed would be limited to entities external to the employer. Although QTAC directed my attention to para 714 where it gives examples of bargaining representatives for employers as employer organisations and consultants, in my view these are simply helpful, but non-exclusive, examples. There is nothing on the face of the legislation to suggest that employers are limited to such third parties in their appointment of bargaining representatives. I am not persuaded that Parliament intended that an employee appointed as a bargaining representative of an employer pursuant to s 176(1)(d) should be excluded from the protections of the Act. In particular, I am not persuaded that Parliament intended that an employee such as Ms Jones, who was not herself covered by the proposed enterprise agreement to be made by QTAC and its employees, could not be QTAC’s bargaining agent for the purpose of enterprise agreement negotiations.
·I agree with Mr Spry’s submission that there is no evidence before the Court that the expression “bargaining representative” is commonly used to refer, inaccurately, to persons who are mere spokespersons for an employer in enterprise agreement negotiations. I note in passing that over the history of decisions of the Australian Industrial Relations Commission between 1983 and 2009 in its administration of earlier legislation there was reference in only one decision to a person being described as a “bargaining representative” of employees (Neilson v JSM Trading Pty Limited t/a Workhire Pty Ltd [2003] AIRC 331 at [23]), and no reference to anyone being described as a bargaining representative of an employer. I make this observation only to note that the term “bargaining representative” did not appear, from this limited information, to be in common usage in any official capacity prior to the enactment of the Act.
·While there is force in the submission of QTAC in relation to the terms of the decision of Fair Work Australia delivered 29 July 2009, I note that that decision was made prior to 18 August 2009, being the date of both the Board minutes recording the decision of the QTAC Board with respect to Ms Jones’ role as bargaining representative, and Mr McAndrew’s letter.
·While there is force in the submission of QTAC in relation to other staff – in particular Ms Pat Smith and Mr Walter Williams – being spokespersons potentially in the same capacity as Ms Jones, I note that:
othere is not evidence that Ms Smith or Mr Williams were appointed in writing in the same manner as Ms Jones; and
oit appears that they were merely spokespersons for QTAC during Ms Jones’ absence.
Conclusion
The circumstances surrounding the appointment of Ms Jones as QTAC’s bargaining representative are not unattended by ambiguity. However on balance, in my view it follows that Ms Jones was QTAC’s bargaining representative as from 18 August 2009.
Was Ms Jones able to participate in a process or proceedings under a workplace law or workplace instrument pursuant to section 341(1)(b)
Ms Jones contends that, in the alternative, she has a workplace right pursuant to s 341(1)(b) of the Act, namely that she:
is able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument.
It is common ground that, for Ms Jones to have a workplace right pursuant to s 341(1)(b), it would be on the basis that her circumstances satisfied s 341(1)(b) and s 341(2)(e). Specifically, if Ms Jones’ workplace right exists it arises from her ability to participate in the process of making an enterprise agreement, namely the 2009 enterprise agreement the subject of a vote by QTAC employees.
QTAC has submitted that the “ability” referred to in s 341(1)(b) qualifies both “initiate” and “participate in”. I agree that this is the natural meaning of the language of the section.
Further, however, QTAC submits that:
·the “ability” referred to in s 341(1)(b) must be an “ability” which arises from the Act or another workplace law. The Act can be taken to be intended to protect roles and activity which arise directly under the Act itself and not to travel any more broadly than that;
·the phrase “is able to” must also be given a meaning akin to “has a right to”;
·Ms Jones personally had no entitlement or ability to initiate or participate in the enterprise agreement process because as an employee she was specifically excluded from the scope of the enterprise agreement by the terms of the enterprise agreement itself;
·Ms Jones was requested and permitted by her employer to play a role in the negotiations for the enterprise agreement as its spokesperson, but that did not mean she was “able to” participate in that process under the Act.
In my view however, Ms Jones did have a workplace right under s 341(1)(b). I form this view on the basis that, even if Ms Jones was not the appointed bargaining representative of QTAC, her role as spokesperson for QTAC in the enterprise agreement negotiations constituted her having an ability to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument. I take this view for the following reasons.
First, while it is clear that the categories of workplace rights listed in s 341(1)(a) and (b) are not intended to be mutually exclusive, and that there is a degree of overlap between the categories so that a number of workplace rights may fall within more than category (para 1371 of the Explanatory Memorandum to the Fair Work Bill 2008 (Cth)), nonetheless I infer that there is a statutory purpose in providing for these separate categories in para (a) and para (b). So, for example, while a person who has been appointed a bargaining representative may have a workplace right pursuant to both s 341(1)(a) and (b), I infer that the legislature contemplated circumstances where workplace rights might arise pursuant to s 341(1)(b) which did not arise pursuant to s 341(1)(a). Otherwise s 341(1)(b) would be redundant.
Second, the Macquarie Dictionary defines “able” as “1. having sufficient power, strength or qualifications”. Further the dictionary defines “to be able to” as “to have the capability or capacity to”. In the context of s 341(1)(b) “to be able to participate” connotes more than the physical capability of a person to participate in the relevant process or proceedings. Rather, in the context of s 341(1)(b) it connotes the authority or right of a person to participate in the relevant process or proceedings. To that extent I accept the submission of QTAC on this point.
However third, while I consider that a person being “able to participate” equates with their “right to participate”, I do not consider “right” in this context means a right arising from the Act as submitted by QTAC. I consider that an ability or “right” to participate can arise from, for example, an authorisation given by an employer such as QTAC to an employee such as Ms Jones to be its spokesperson in enterprise agreement negotiations. Accordingly I consider that such an employee is “able to participate” in those negotiations within the meaning of s 341(1)(b).
Fourth, I consider a construction restricting “able to participate” to rights arising under the Act would inappropriately narrow the meaning of s 341(1)(b). I agree with Ms Jones that the construction contended by QTAC would leave her the only person at the bargaining table without the protection of the Act, notwithstanding that she was engaged in enterprise agreement negotiations and potentially personally vulnerable to adverse action arising from that engagement. I do not consider that the Act, the objectives of which include fairness to participants in workplace relations, would intend a result where Ms Jones was not the subject of protection.
Fifth, Ms Jones’ ability to participate in the negotiations arose from the request of QTAC that she do so as QTAC’s CEO. She had a right to participate because of that request. I consider that the ordinary meaning of the language of s 341(1)(b) applies to the circumstances in this case. I see nothing inconsistent with this construction of s 341(1)(b) in the fact that any permission given to Ms Jones by QTAC to participate in the enterprise agreement negotiations could be withdrawn by QTAC at any time. Had the QTAC Board determined at any time that Ms Jones should not continue in that role, she would simply have ceased being “able to participate” in the negotiations.
Sixth, the construction contended by QTAC, namely that “able to” in s 341(1)(b) is referable exclusively to rights arising under the Act or other workplace laws, is not supported by construction of similar legislative provisions. In particular, I note s 341(1)(c) which provides that a person has a workplace right if he or she:
(c) is able to make a complaint or inquiry
(i) to a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrument; or
(ii) if the person is an employee – in relation to his or employment.
Interestingly, para 1370 of the Explanatory Memorandum to the Fair Work Bill 2008 (Cth) gives examples of where a person has a workplace right within the meaning of s 341(1)(c) because he or she “is able to” make a complaint or inquiry to a person fulfilling the description in s 341(1)(i). One example is that of an employee who approaches his union to ask for their assistance to work out whether he is being paid the correct amount by his employer. In this example the simple “ability” – or right – of a union member to approach their union for assistance is not an ability which arises pursuant to the Act. It is an ability which arises pursuant to the terms of his union membership. By analogy, and as a matter of statutory construction, it is reasonable to infer that the ability to participate in s 341(1)(b) is not similarly confined to “rights” arising from the terms of the Act, but refers to an ability or rights which can arise from arrangements beyond those conferred by the Act.
Finally, I consider that Ms Jones’ act in attending meetings, having discussions and generally taking part in negotiations towards the making of the enterprise agreement with, inter alia, the ASU, constituted “participation” in those negotiations. Indeed, it would be difficult to identify a clearer example of “participation” in such negotiations.
In conclusion, I find that Ms Jones did have a workplace right within the meaning of s 341(1)(a) as QTAC’s bargaining representative, and further that Ms Jones had a workplace right within the meaning of s 341(1)(b) because she was able to participate in a process or proceedings under a workplace law or workplace instrument.
2. Has QTAC taken or does QTAC propose to take adverse action against Ms Jones?
I noted earlier in this judgment that s 340 of the Act prohibits adverse action against a person because, inter alia, that person has a workplace right.
For the purposes of these proceedings, the relevant definition of “adverse action” in s 342(1) is as follows:
Meaning of adverse action
Item Column 1
Adverse action is taken by…Column 2
If…1 An employer against an employee The employer:
(a) dismisses the employee; or
(b) injures the employee in his or her employment; or
(c) alters the position of the employee to the employee’s prejudice; or
(d) discriminates between the employee and other employees of the employer
Although the genesis of legislative provisions prohibiting adverse action against a person because of his or her workplace right may have been in protection of freedom of association and the right of employees to join industrial organisations (cf consideration by the Full Court in Greater Dandenong Council v Australian Municipal, Administrative, Clerical and Services Union (2001) 112 FCR 232 at 244-248 per Wilcox J and Finkelstein J at 282-287, and comments of Marshall J in Elliott v Kodak Australasia Pty Ltd (2001) 108 IR 23), it is clear that s 340 of the Act extends protection much more broadly. Indeed this was recognised in para 1386 of the Explanatory Memorandum to the Fair Work Bill 2008 (Cth) which stated:
The consolidation of the existing specific WR Act provisions into generally applicable prohibitions means that the new provisions protect persons against a broader range of adverse action.
In these proceedings it is not in dispute that Ms Jones’ claim of adverse action relates to item 1 para (b) and para (c) in the table in s 342, namely that QTAC’s actions had injured her in her employment or altered her position to her prejudice, or had threatened to achieve these results.
What is meant by “injures the employee in his or her employment” and “alters the position of the employee to the employee’s prejudice”?
In the High Court decision Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (No 3) (1998) 195 CLR 1 the majority at 18 observed that “injures the employee in his or her employment” covers injury of any compensable kind, and “alters the position of the employee to the employee’s prejudice” is a broad additional category which covers not only legal injury but any adverse affection of, or deterioration in, the advantages enjoyed by the employee before the conduct in question.
The term “alters the position of the employee to the employee’s prejudice” appears to refer to an intentional act directed to an individual employee or prospective employees: BHP Iron Ore Pty Ltd v Australian Workers’ Union (2000) 97 IR 266 at 275. Further, in Community and Public Sector Union v Telstra Corporation Ltd [2001] 107 FCR 93, where an email was sent within the employer organisation by management proposing alterations to the basis upon which redundancies would be offered to employees, the Full Court held that the employer had altered the position of the relevant employees to their prejudice even where there was no evidence that the email had been the subject of action. In that case the Full Court considered that circumstances which result in the employment of employees becoming less secure, in a real and substantial manner, than it had been previously, constitutes an alteration in their position to their prejudice: at 101.
Claims of Ms Jones
Paragraphs 4, 5 and 6 of the Amended Statement of Claim contain Ms Jones’ pleading relevant to QTAC’s alleged contravention of s 340(1) of the Act. Those paragraphs are as follows:
4. In contravention of section 340(1) of the FW Act, the Respondent has taken adverse action against the Applicant in that the Respondent has injured the Applicant in her employment.
PARTICULARS
(a) The Respondent commenced a disciplinary investigation against the Applicant without reasonable or adequate cause;
(b) The Respondent commenced an investigation into the complaints against the Applicant in circumstances where the Respondent knew or ought to have known that the complaints against the Applicant were not bona fide but where (sic) made in the context of her role or responsibility and/or participation in the EA negotiations;
(c) The Respondent’s unreasonable reliance on Walter Williams’ diary notes, as forwarded to the Applicant by letter from Professor Deborah Terry dated 30 October 2009, as supporting the investigator’s finding that there is an established pattern of unreasonable treatment by the Applicant of other staff over an extended period of time;
…
…
(f) In purporting to investigate the complaints against the Applicant, the Respondent failed or refused to provide the Applicant with natural justice;
(g) The Respondent has failed or refused to fulfil its representation made to the Applicant on about 29 October 2009 that any decision with respect to the Applicant’s employment would not be made without a fair process, including the provision of natural justice;
(h) The Respondent in its letter of 29 October 2009 to the Applicant required the Applicant to ‘show cause’ why she should not be subject to disciplinary action, including the termination of her employment before properly and/or adequately identifying the allegations against her and/or giving the Applicant an opportunity to respond to the allegations relied on by the Respondent;
(i) the Respondent’s refusal or failure to set aside Carol Watson’s Report dated 28 September 2009.
5. Further, or alternatively, in contravention of section 340 (1) of the FW Act, the Respondent has taken adverse action against the Applicant in that the Respondent has altered the position of the Applicant to the Applicant’s prejudice.
PARTICULARS
(a) The Applicant repeats and relies on the particulars pleaded in paragraph [4] herein.
6. Further, or alternatively, the Respondent has threatened to take adverse action, namely the termination of the Applicant’s employment, and is organising such action, against the Applicant.
PARTICULARS
(a) Letter to the Applicant from Professor Deborah Terry on behalf of the Respondent dated 29 October 2009.
The adverse action pleaded by Ms Jones may be summarised as follows:
·commencing the investigation without adequate cause and in circumstances where QTAC knew, or ought to have known, the complaints were not bona fide;
·issuing of the show cause letter;
·unreasonable reliance on Walter Williams’ diary notes;
·a failure to provide natural justice in carrying out the investigation;
·a refusal or failure to set aside the Carol Watson Report.
I propose to consider each type of adverse action claimed, in turn.
In Ms Jones’ submissions the identification of the alleged forms of adverse action and issues of causation were intertwined. In my view, particularly in light of the respective burdens of proof borne by each party, it is appropriate to first identify whether adverse action had occurred within the meaning of the Act, in respect of which Ms Jones bears the onus of proof, and then to turn to issues of causation in respect of which the burden of proof shifts to QTAC.
Commencement of the investigation
Extensive submissions have been made by Ms Jones in respect of the question whether the commencement of the investigation by QTAC constituted adverse action. It is common ground that the relevant investigation was that undertaken by Ms Carol Watson following a discussion between Ms Watson and Mr McAndrew on 4 September 2009, and culminating in production of the Carol Watson Report.
In my view the resolution of this issue depends on determination of the following issues raised by Ms Jones:
1.Whether commencement of an investigation can in any event constitute adverse action.
2.Whether the investigation occurred without reasonable or adequate cause, and/or in circumstances where QTAC knew or ought to have known that the complaints against Ms Jones were not bona fide but were made in the context of her role or responsibility and/or participation in the enterprise agreement negotiations.
Can commencement of an investigation constitute adverse action?
The question whether the commencement of an investigation constitutes adverse action was specifically considered by Goldberg J in United Firefighters Union of Australia v Metropolitan Fire and Emergency Services Board (2003) 198 ALR 466, North J in Kimpton v Minister for Education of Victoria (1996) 65 IR 317 and Ryan J in Police Federation of Australia v Nixon (2008) 168 FCR 340.
In United Firefighters Union (2003) 198 ALR 466 charges were laid and heard against employees relating to activities including:
·refusal to remove a sign;
·usage of the email system; and
·head-butting of another firefighter.
The employees submitted that the laying of charges was conduct prohibited by s 298K(1) of the Workplace Relations Act 1996 (Cth) and sought interlocutory injunctions restraining the employer from taking action in breach of this legislation.
After referring to the observations of the Full Court of the Federal Court in Community and Public Sector Union [2001] 107 FCR 93 at 100, Goldberg J at 491 said:
Although the laying of the charges and the hearing of them itself does not result in a permanent injury to an employee or an alteration of the employees’ position, I consider it to be arguable that it does expose the employees potentially to the range of penalties specified in [the relevant legislation] … I am satisfied that there is, nevertheless, a serious question to be tried that by virtue of the laying and the hearing of the charges the position of the employees is altered to their prejudice because they are exposed to a potential disadvantage of an imposition of a penalty if the charges are ultimately proven.
In Kimpton (1996) 65 IR 317 North J dismissed a notice of motion seeking an order that the substantive application in those proceedings be dismissed as disclosing no cause of action. In the substantive proceedings the applicants had contended, inter alia, that a requirement to respond to a letter seeking answers to a number of questions in the course of an investigation of activities of the applicants in the course of their employment constituted injury to the applicants in their employment. North J observed:
I do not regard it as hopeless or untenable to contend that the requirement to participate in the investigatory process may amount to a relevant injury or prejudicial alteration. (at 319)
In Nixon (2008) 168 FCR 340 the relevant employees also sought interlocutory injunctions against the employer, claiming inter alia that the resumption of an investigation of bullying allegations against an employee constituted an injury or alteration of position against that employee, for reasons prohibited by the relevant legislation. Ryan J observed:
It was argued on behalf of the respondents that to be subject to a disciplinary investigation does not amount to an injury in employment or an alteration of the position of an employee to his or her prejudice …
In the light of the history which I have just recounted, I consider that a serious question remains as to whether the resumption of the inquiry by Biggin and Cartwright amounts to an injury to Mullett in his employment. Not every disciplinary inquiry or investigation of alleged misconduct by an employee will have that effect. For example, the inquiry may be conducted in such a way that only the affected employee and a few other persons directly involved in it are aware that it is taking place. Likewise, the subject matter or particulars of the alleged breach of discipline may, on balance, not be reasonably capable, at least before the investigation has been completed, of damaging the reputation of the employee or adversely affecting his or her standing in the workforce or among the wider community, assuming the fact of the inquiry to be so widely known.
However, the investigation within Victoria Police of the Bullying Allegations against Mullett cannot, on the evidence as it stands, be regarded as similarly innocuous.
On the facts his Honour considered that a serious question remained as to whether the resumption of the relevant inquiry into bullying allegations constituted an injury to the employee the subject of those allegations. In so finding his Honour noted that an email concerning the investigation had been sent to “all staff” of the organisation, and that no attempt had been made to resolve the complaints underlying the bullying allegations by conciliation as contemplated by the relevant legislation. His Honour also noted the position of the relevant employee and observed:
That position requires him to act as spokesman on industrial issues, like salaries and working conditions, for members of the Force generally and, perhaps, also for individual members in relation to disciplinary matters. His ability to retain the confidence of members of Victoria Police in his discharge of those functions is likely to be impaired significantly once it becomes generally known that an investigation of long standing and already attended by intense publicity has been resumed. (at 355)
Later in the judgment his Honour continued:
In the light of the conclusion just reached on “injury”, it is strictly unnecessary to consider the alternative question of whether the resumption of the EDS investigation of the Bullying Allegations can amount to an alteration of Mullett’s position as an employee of Victoria Police. However, in my view, “alteration” in this context requires a substantive change in, or reduction of, the advantages enjoyed by the employee in that capacity. Merely to be subject to a disciplinary inquiry or investigation does not, without more, constitute such a substantive change. Examples of relevant substantive changes include reduction of salary, deprivation of overtime, diversion to a less congenial shift, forced taking of leave, transfer to lower duties or suspension from duties…
I am conscious that the tentative view just expressed diverges from that of Goldberg J in United Firefighters… I consider, with respect, that amenability to a disciplinary charge brought in good faith and on a proper prima facie evidentiary basis is a normal incident of employment and does not of itself, before the laying of the charge, constitute “an adverse affection of, or deterioration in, the advantage enjoyed by the employee” in the sense used by the High Court in the passage from Patrick Stevedores 195 CLR 1 quoted at [14] above. Of course, it is otherwise where the charge is made out and some deleterious consequence is visited on the employee. That is the significance of the words to which I have added emphasis in the extract from Goldberg J’s reasons reproduced at [47] above. Until the charge has been proved, the disadvantage to the employee, as his Honour acknowledged, remains merely “potential”. (at 355-356)
It follows that, on these authorities, commencement of an investigation by an employer into conduct of an employee can in certain circumstances constitute adverse action against that employee for the purposes of s 342, either as injury or alteration of the position of the employee.
Did the appointment of Ms Watson as external investigator in the circumstances of this case constitute adverse action in respect of Ms Jones?
As a general proposition I consider that the commencement of an investigation into bullying allegations could be adverse action against someone in Ms Jones’ position within the meaning of s 342 of the Act. I form this view because:
·In light of her position as CEO, the commencement of the investigation into allegations of bullying either could injure her in her employment or cause a deterioration in her standing in her workplace so as to alter her position within the meaning of s 342 of the Act; and
·As observed by Goldberg J in United Firefighters Union (2003) 198 ALR 466, Ms Jones’ position would be altered to her prejudice because of the exposure to a potential disadvantage of imposition of a penalty if the charges are ultimately proven.
Allegations of bullying in the workplace are serious allegations. This is particularly so where the CEO is the subject of those allegations. While an investigation into allegations of bullying may be appropriate and indeed warranted in the circumstances of an individual case, this does not mean that the employee will not be “injured” or their position altered to their prejudice by the investigation. I do not agree that, as a general proposition, amenability to a disciplinary investigation is a “normal” incident of employment, even if the investigation is commenced in good faith and on a proper prima facie evidentiary basis.
In this case however, Ms Jones has specifically pleaded that she has been the subject of adverse action because the investigation was commenced against her without reasonable or adequate cause, or because QTAC knew or ought to have known that the complaints against her were not bona fide but were made in the context of her role or responsibility and/or participation in the enterprise agreement negotiations.
This claim is somewhat confusing because it seeks to introduce concepts of causation into the question of whether or not adverse action has been taken, although it also apparently seeks to directly address the issues raised by Ryan J in Nixon (2008) 168 FCR 340. In any event however, I am satisfied that, in the circumstances of the case, the investigation was commenced in circumstances where QTAC had reasonable or adequate cause. I am not satisfied that QTAC knew or ought to have known that the complaints against Ms Jones were not bona fide but were made in the context of her role or responsibility and/or participation in the enterprise agreement negotiations. Accordingly I do not consider that the commencement of the investigation into the complaints against Ms Jones constituted adverse action against her.
I form this view for the following reasons.
First, Mr McAndrew as Chair of the QTAC Board had received four separate complaints from QTAC staff complaining about bullying by Ms Jones. While two of those complaints were anonymous, the two complaints from Dr Bowes and Ms Bayley were not. In any event all four complaints contained extensive details as to events which had occurred.
Second, Mr McAndrew deposed in his affidavit that after receipt of the Nicola Bowes complaint he had discussed with Ms Jones the appropriate procedure for handling a complaint made against the CEO. He also deposed that he was concerned that Ms Jones assumed that Mr Walter Williams would handle the investigation. Mr McAndrew considered this quite inappropriate (affidavit of Colin McAndrew para 40 and para 43). In my view Mr McAndrew’s concern in respect of an approach, whereby a subordinate member of staff would manage a complaint in respect of the CEO, was not surprising and was indeed well-founded.
Third, the Board had resolved at its meeting of 18 August 2009 that Ms Jones would be invited to respond to Dr Bowes’ letter of complaint and that the Board would consider the matter further after that response had been provided. However Mr McAndrew gave evidence that after receipt of the additional anonymous complaints and the Danelle Bayley complaint, he concluded that he could not commit his own time to investigating a total of four complaints. In my view this was a reasonable position for Mr McAndrew to adopt. In light of Ms Jones’ senior position as CEO and the severity and detailed nature of the bullying allegations, I consider it appropriate that QTAC should commission an external person to conduct an investigation, particularly in view of the inability of the QTAC Chair to give such an investigation his personal attention.
Fourth, the ASU had stated that it would refer the issue of bullying allegations to Workplace Health and Safety Queensland if no action was taken by QTAC in relation to mistreatment of staff by Ms Jones. This was, in itself, cause for concern by QTAC.
Fifth, although the ASU had itself made complaints in relation to Ms Jones in correspondence to Mr McAndrew, Mr McAndrew deposed that he had treated those complaints as negotiating tactics by the union (affidavit of Colin McAndrew paras 9-12). It is clear on the evidence that it was only when formal complaints were made by members of QTAC staff that QTAC considered that investigation of allegations of bullying was warranted. The fact that the four formal allegations of bullying by staff – two signed by QTAC staff members – were communicated to Mr McAndrew via the ASU does not, in my opinion, mean that QTAC knew or ought to have known that the complaints against Ms Jones were not bona fide. Unions have a legitimate and well-recognised role in representing and protecting their members and furthering their interests and, in that capacity, communicating with the employer (cf comments of Kitto J in Victorian Employer’s Federation v Federal Commissioner of Taxation (1957) 96 CLR 390). In my view it is completely reasonable that the ASU should convey formal complaints of members to the QTAC Chair, particularly in light of the prospect of fear of reprisal expressed by the four complainants.
Sixth, the evidence demonstrates that the two identified complainants, Dr Bowes and Ms Bayley, were both ASU members. Indeed it is clear that Dr Bowes actively participated in industrial activities in the QTAC workplace – for example she was a member of the RDO Committee whereby staff and management participated in a process towards a version of the rostered day off which might be considered during the enterprise agreement negotiations, and she became an ASU delegate on or about 10 August 2009. However in my view it is not appropriate to draw an inference from these facts that the complaints by Dr Bowes and Ms Bayley were not bona fide, or that QTAC should have known that the complaints were not bona fide. Like non-union employees, employees who are members of a union, and employees who are active in a union, are perfectly entitled to complain of mistreatment in the workplace. Indeed, I find from the evidence of Dr Bowes and Ms Bayley that their complaints were bona fide.
Seventh, I am not persuaded by Ms Jones’ submission that the appointment of Ms Jones as external investigator constituted adverse action in itself because it occurred at a time when Ms Jones continued to remain the bargaining representative of QTAC and was required to negotiate with both the ASU and Dr Bowes. The evidence before the Court indicates that: in correspondence with the ASU, QTAC continued to show strong support for Ms Jones as its bargaining representative in the enterprise agreement negotiations notwithstanding the receipt of formal complaints from QTAC staff. The fact that QTAC retained Ms Jones as its bargaining representative notwithstanding the appointment of the external investigator was, in my view, a measure of the support QTAC maintained for Ms Jones.
Ms Jones’ breach of contract cause of action is found in para 12A and para 12B of the Amended Statement of Claim, which read as follows:
12A. The employment contract pleaded in paragraph 2(c) herein was varied on or about 29 October 2009 to include an express term that any decision with respect to the Applicant’s employment would not be made without a fair process, including the provision of natural justice.
PARTICULARS
Letter to the Applicant from Professor Terry on behalf of the Respondent dated 29 October 2009.
12B. In breach of the term pleaded in paragraph 12A herein, the Respondent has failed or refused to provide the Applicant with a fair process and/or to accord the Applicant natural justice.
PARTICULARS
(a) The Respondent’s reliance on Walter Williams’ diary notes;
(b) The Respondent’s reliance on Walter Williams’ diary notes from about September 2009 notwithstanding that the Respondent knew or had constructive knowledge of the allegations contained therein by virtue of Walter Williams’ position as the Respondent’s Company Secretary;
(c) The Respondent’s failure or refusal to set aside Carol Watson’s report dated 28 September 2009.
1. Was Ms Jones’ employment contract varied by QTAC’s letter to Ms Jones of 29 October 2009?
It is common ground that a copy of Ms Jones’ employment contract is annexed to her affidavit of 16 November 2009. Importantly, cl 20.4 of the contract reads as follows:
20.4 Variation and entire agreement
The terms and conditions set out in this document may only be varied, replaced or terminated by agreement in writing signed by yourself and an authorised representative of QTAC.
These terms and conditions will continue to govern your employment with QTAC despite any changes from time to time to your position, duties and responsibilities, remuneration, working hours or employment location, unless otherwise agreed in writing.
The terms and conditions set out in this document embody the entire understanding of the parties in relation to your employment by QTAC. All previous negotiations, representations or agreements are superseded by this document.
Further, as I observed in the interlocutory judgment:
·The terms of Ms Jones’ employment contract allow QTAC to terminate her employment at three months notice for any reason whatsoever or for no reason whatsoever.
·There is no specific term in the contract entitling Ms Jones to natural justice in respect of termination of her employment.
·I do not consider that a term as to natural justice can be implied into Ms Jones’ contract of employment on its written terms (Jones [2009] FCA 1382 at 37-42).
In their letter of 20 October 2009 to QTAC, Ms Jones’ solicitors wrote:
As QTAC has determined to deal with the allegations against our client by way of an investigation process, QTAC has, by its own conduct, and which our client can imply as her contractual right, determined that our client will be afforded natural justice and procedural fairness during the course of the investigation and any subsequent disciplinary action (if such action is in fact deemed necessary).
In her letter of 29 October 2009, so far as relevant Professor Terry replied as follows:
The letter also refers to your assumption that you will be provided with natural justice. QTAC does intend to do so. Irrespective of the terms of your contract, it is QTAC’s intention to ensure that no decision is made in relation to your employment without a fair process, including an opportunity for you to respond both to the investigation report and to allegations which arise from the report.
The question arises whether, notwithstanding cl 20.4 of Ms Jones’ contract, the contract was varied by Professor Terry’s letter of 29 October 2009.
In my view it was not.
First, it is clear that, in her letter of 29 October 2009, Professor Terry was explaining the approach QTAC intended to take to the investigation of the bullying allegations, and to confirm that QTAC intended to treat Ms Jones fairly. In my view it is possible for an employer to give an assurance to an employee that they would be treated fairly without such assurance becoming part of the employment contract.
Second, it is clear that Professor Terry did not intend that her correspondence would constitute a variation of Ms Jones’ existing employment contract. I note Professor Terry’s use of the words “Irrespective of the terms of your contract”. In my view these words support the conclusion that Professor Terry’s assurance that QTAC intended to treat Ms Jones fairly was simply a reference to QTAC’s intention, and not intended to impact on the terms of her contract.
Third, there is no evidence that, even if QTAC had offered in writing to amend Ms Jones’ contract, Ms Jones had accepted that offer so as to constitute an agreement.
Finally, there is no evidence that Ms Jones had provided any fresh consideration to support such a variation to the principal contract: Commonwealth of Australia v Verwayen (1990) 170 CLR 394 at 471, Agricultural & Rural Finance Pty Ltd v Gardiner [2008] 238 CLR 570 at 586-587.
2. Terms of any variation
If, however, I am wrong in finding that Professor Terry’s letter of 29 October 2009 did not vary Ms Jones’ contract, the terms of any variation appear to be as set out in Professor Terry’s letter, namely that no decision would be made by QTAC in relation to Ms Jones’ employment without a fair process and natural justice, including an opportunity for her to respond both to the Carol Watson Report and to allegations which arise from the report. Although in my view the contract was not amended to incorporate such a term I shall now turn to consider whether, if the contract had been so varied, QTAC has acted in breach.
3. Did QTAC act in breach of a term that QTAC would accord Ms Jones natural justice/procedural fairness including an opportunity for Ms Jones to respond?
The concepts of natural justice and procedural fairness appear interchangeable in Australian law. I note in particular the discussion by Mason J in Kioa v West (1985) 159 CLR 550 at 583-585. In Halsbury’s Laws of Australia (Butterworths 1999) Vol 1(2) at [10-1868] the key principles are usefully summarised as:
·the hearing rule, based on the maxim audi alteram partem, which requires that a decision-maker give to a person whose interests may be adversely affected by a decision an opportunity to present his or her case;
·the bias rule, based upon the maxim nemo debet esse judex in propria sua causa, which requires that the decision-maker not be interested in the matter to be decided, nor that there be an appearance that the decision-maker brings to the matter a prejudiced mind; and
·the “no evidence” rule, which is of more recent origin, and requires that an administrator’s decision be based upon logically probative evidence.
In substance, Ms Jones contends that she has been denied natural justice because of a breach of two of these rules namely that she has not been given an adequate opportunity to present her case, and the investigator, Ms Watson, was biased against her. In summary, this denial of natural justice or procedural fairness was because of the following:
1.Ms Watson did not inform Ms Jones of allegations that Ms Jones created a “culture of fear” in the workplace, nor put such allegations to her to enable her to respond, nor ask Ms Jones to nominate witnesses who could be interviewed by Ms Watson in relation to such allegations.
2.Ms Watson did not interview three witnesses nominated by Ms Jones – namely Ms Tineka Suto, Ms Katharine Martyn, and Ms Susan Dielemans – whereas she interviewed all witnesses suggested by the ASU. This demonstrates apparent bias on the part of Ms Watson.
3.Ms Watson did not interview one of the senior managers, Ms Keene, notwithstanding that she could have done so when Ms Keene returned from leave.
4.Ms Watson’s report erroneously conveyed the impression that Ms Jones did not have a good relationship with her managers, notwithstanding that three of the four managers told Ms Watson that their relationship with Ms Jones was positive. Ms Watson relied too heavily on views of Mr Walter Williams.
5.Other than the four managers, the persons interviewed by Ms Watson were strongly weighted in favour of the ASU. Of the remaining fourteen people interviewed, eleven were either employed by the ASU, nominated by the ASU as witnesses, delegates of the ASU or had appointed the ASU as their bargaining representative.
6.Because Ms Watson had relied on Mr Walter Williams’ diary notes in preparing the Carol Watson Report it was unreasonable of QTAC to rely on those notes further. In any event, Mr Williams’ notes are not reliable, and the fact that Mr Williams had earlier made no complaints in relation to the alleged conduct of Ms Jones suggests that he had condoned it.
7.Notwithstanding the fact that the minutes of the meeting of 4 August 2009 (which Dr Bowes had attended without Ms Jones’ permission) actually supported a finding that Dr Bowes had not personally apologised to Ms Jones, Ms Watson has chosen to read them against Ms Jones. This demonstrates bias by Ms Watson against Ms Jones.
8.The Board considered the Carol Watson Report, asked Ms Watson questions in relation to its contents, and decided to continue the investigation process (with a variation from the original process where Ms Watson would conduct the investigation) at a time when Ms Jones had not seen the report, including its recommendations, nor had an opportunity to respond to matters in the report including Mr Walter Williams’ diary notes.
In my view however, even if a requirement for natural justice and procedural fairness (including an opportunity to respond) had become a term of Ms Jones’ contract following Professor Terry’s letter of 29 October 2009, I am satisfied that QTAC is not in breach of that term. Indeed, in my view, QTAC went to considerable and painstaking lengths to consult Ms Jones, to ensure that the process of the investigation was fair including providing her with relevant material, and to afford her every opportunity to respond to the serious allegations against her. I form this view for the following reasons.
External investigation
First, as I have stated already numerous times in this judgment, the Chair of QTAC was confronted with four formal staff complaints concerning bullying allegations by Ms Jones on top of broad allegations by the ASU, and statements (indeed, threats) by the ASU to report QTAC to the workplace health and safety authorities if nothing was done by QTAC to investigate. For reasons I have already given, it was reasonable in those circumstances that QTAC appoint an external investigator to investigate the allegations.
Bias by investigator
Second, as a general proposition I am not persuaded that Ms Carol Watson was biased against Ms Jones as Ms Jones has claimed:
·I can identify no reason on the evidence why Ms Watson would be biased against Ms Jones in favour of the ASU. The evidence demonstrates that Ms Watson is a very experienced consultant in human resources, and that she has broad experience working with both management and unions. Indeed there was no challenge by Ms Jones to Ms Watson’s qualifications to undertake the investigation.
·I was impressed by Ms Watson’s demeanour. I considered her to be an honest, thoughtful, credible witness who would not jump to conclusions without proper inquiry, or form a view without a sound process. Indeed it is not in dispute that in the course of the investigation, Ms Watson interviewed sixteen staff members as well as Ms Jones, representing 29% of the QTAC staff group, and formed her views based on her discussions with this substantial proportion of the QTAC workforce.
·I note that Ms Watson interviewed Ms Jones at the commencement of the investigation, and had the benefit of Ms Jones’ views when conducting interviews with other staff. It also appears that Ms Watson interviewed Ms Jones for at least an hour, according to Ms Watson taking Ms Jones through the complaints “line by line” (TS p 599 ll 41-46).
·While Ms Watson interviewed witnesses nominated by the ASU, this was at the direction of Mr McAndrew to ascertain if the ASU had more specific information about the general claim of bullying (affidavit of Carol Watson para 18, TS p 457 ll 30-31, p 458 ll 37-38). I note that Ms Watson interviewed Mr Aaron McLachlan of the ASU. In any event, although Ms Jones contends that Ms Watson’s bias was demonstrated by the number of union members Ms Watson interviewed, there is some evidence that union membership of QTAC staff had increased since the 2005 certified agreement negotiations (TS p 616 ll 41-42) and to that extent it was not surprising that employees interviewed would also have been ASU members. Further, I do not see the relevance in this context of staff having appointed the ASU as their bargaining representative – such an act does not, in my view, suggest that such staff should not be interviewed by Ms Watson.
·I note that, in relation to the Danelle Bayley complaint, Ms Watson concluded that there was insufficient evidence and too much time had passed to determine a result in relation to that complaint. This approach does not support a finding of bias in Ms Watson against Ms Jones.
·Ms Watson specifically noted in her report that Ms Jones had not had an opportunity to respond to specific allegations against Ms Jones which had arisen during the course of the investigation, namely fresh allegations against Ms Jones by the QTAC staff interviewed. Again, this approach does support a finding of bias in Ms Watson against Ms Jones.
·The fact that Ms Watson reached conclusions to which Ms Jones objected does not mean that Ms Watson was biased against Ms Jones.
·In any event, I note that Ms Watson was not a decision-maker of any kind in relation to the complaints against Ms Jones. Clearly, QTAC has reserved the function of decision-maker in respect of the allegations to itself.
Culture of fear/climate of fear allegations
Third, the issue whether Ms Watson specifically told Ms Jones that she was investigating an allegation that Ms Jones had created a “culture of fear” in the QTAC workplace was the subject of considerable dispute. Mr McAndrew gave evidence that he had coined the expression “culture of fear” in a conversation with Ms Watson, as a short-hand description of the allegations of the ASU in its correspondence with him (TS p 458 ll 40-45). Ms Watson gave evidence that Mr McLachlan had used the phrase “climate of fear” in his conversation with her (TS p 589 ll 35-36), and did not mention Mr McAndrew’s use of the expression to her.
Ms Jones claimed that Ms Watson had never put to her the allegation that there was a “culture of fear” in the QTAC workplace. In summary, Ms Jones’ evidence was that:
·She understood Ms Watson’s investigation was limited to the “incident” with Nicola Bowes (annexures ELJ33 and ELJ38 to the supplementary affidavit of Elizabeth Jones sworn 18 December 2009);
·Ms Watson had asked her to describe the climate at QTAC;
·Ms Jones had said she thought it was “pretty good”;
·Ms Watson had asked if Ms Jones had ever done a climate survey;
·Ms Jones had said no but showed Ms Watson QTAC’s Human Resources Key Performance Indicators (reply affidavit of Elizabeth Jones sworn 19 January 2010);
·Ms Watson did not tell her that Ms Watson would be speaking to the ASU because the ASU had raised the broader allegation in relation to culture, or that Ms Watson would be investigating the general allegations made by the ASU;
·Ms Watson did not ask her to nominate witnesses who could provide information on the broader allegations raised by the ASU;
·If she had known that Ms Watson was investigating the wider allegation, she would have nominated other people to be interviewed and sought further clarification as to what Ms Watson was investigating.
Ms Jones also submits that Ms Watson could not have put to her the “culture/climate of fear” allegation at the interview with her because, on Ms Watson’s own evidence, the expression was used by Mr McLachlan and Ms Watson spoke with Mr McLachlan after Ms Watson spoke with Ms Jones.
In my view Ms Jones was a witness who endeavoured to answer questions truthfully. However on balance I consider it more likely than not that Ms Watson did put the “culture/climate of fear” allegation to Ms Jones during the course of the interview between Ms Watson and Ms Jones. I form this view for the following reasons.
I consider Ms Watson was also a witness of credit, and Ms Watson was emphatic that she had put to Ms Jones that Ms Watson was also investigating the issue of a culture of fear at QTAC (TS p 595 ll 46-47, p 596 ll 1-3). I note in particular Ms Watson’s email to Ms Jones dated & October 2009 wherein Ms Watson referred to their discussion and Ms Watson’s notes of that discussion (annexure ELJ39 to the supplementary affidavit of Elizabeth Jones sworn 18 December 2009).
On the evidence, it may be that both Colin McAndrew and Aaron McLachlan had used the phrase “culture of fear” or a derivative thereof to Ms Watson. Although Ms Jones disputes this, I accept Ms Watson’s comment that the words “climate of fear” and “culture of fear” are ordinary in-use words in relation to workplace management. Further, although Ms Watson’s evidence was that the words “climate of fear” had been used to her by Aaron McLachlan, I consider it likely that Mr McAndrew had also earlier used similar words to her in conversation, irrespective whether Ms Watson recalled that aspect of the conversation.
Ms Jones was aware of the nature of the ASU allegations which were summarised by both Mr McAndrew and Mr McLachlan as the “culture/climate of fear”. It is not in dispute that Colin McAndrew had forwarded Ms Jones the ASU letter of 7 August 2009, and the ASU letter of 14 August 2009 attaching the four formal staff complaints. In her letter of 21 August 2009 to Colin McAndrew, Ms Jones noted the ASU’s allegation that she had treated a number of employees inappropriately, and that the ASU wanted QTAC to commence an independent investigation into her “behaviour and professionalism”. In light of this, it would have been surprising if Ms Watson, in interviewing Ms Jones, had not asked her about broader allegations of a climate of fear at the QTAC workplace. I note that Ms Watson gave evidence that Ms Jones did not appear surprised when Ms Watson raised the issue of the alleged climate of fear in their interview, and that Ms Watson had assumed that this lack of surprise derived from the fact that Ms Jones was already aware of those allegations (TS p 597 ll 21-25). In my view Ms Watson’s evidence is plausible.
Ms Jones also knew that, in the immediate aftermath of the receipt by Mr McAndrew of the Nicola Bowes complaint, no steps had been taken by the Board or Mr McAndrew to investigate, whether by external investigator or otherwise, that complaint. However by the time that Ms Watson was appointed by Mr McAndrew, there had been a total of four formal complaints about Ms Jones by staff, including the specific complaint by Danelle Bayley, as well as general allegations of bullying by the ASU. Clearly, the environment in which Ms Watson was appointed investigator was such that there were multiple complaints against Ms Jones. Ms Jones was aware of this environment. In these circumstances I do not accept that Ms Jones assumed Ms Watson’s brief was limited to the investigation of the Nicola Bowes complaint. On balance I consider that Ms Jones’ emails to Ms Watson of 11 September 2009 and 7 October 2009 (annexures ELJ33 and ELJ38 to the supplementary affidavit of Ms Jones sworn 18 December 2009), in which Ms Jones indicated that her understanding of the scope of the investigation was limited to the Nicola Bowes complaint, are of little value in the context of these proceedings, and indeed appear both self-serving and deliberate.
However even if Ms Watson had not specifically advised Ms Jones that she was investigating this broader allegation, I consider that any concern regarding natural justice has been rectified in the process subsequently undertaken. Clearly, Ms Jones has comprehensively responded to the allegations of “culture/climate of fear” in her various responses with free access to the relevant material.
I note that there is also some dispute as to whether Ms Jones had been asked to nominate for interview:
·anyone who could be helpful (Ms Watson’s evidence: affidavit of Carol Watson para 72). Such a request supports an inference that the investigation was to be extend beyond an investigation into Dr Bowes’ complaint (which Ms Jones claimed was her understanding); or
·only staff members who had been involved in the enterprise agreement negotiations to address the claim of inappropriate behaviour during those negotiations (Ms Jones’ contention as found in para 6.3 of the letter exhibited as ELJM to her affidavit of 16 November 2009, and her supplementary affidavit para 76 and para 77). Such a request supports an inference that the investigation was to be limited as contended by Ms Jones, namely to Dr Bowes’ complaint.
Mr McAndrew deposed that he had told Ms Watson that she should ask Ms Jones who should be involved in the investigation (affidavit of Colin McAndrew para 102).
On balance, for the reasons I have already given, I prefer Ms Watson’s version of who Ms Jones was asked to nominate for interview.
Failure to interview witnesses
Fourth, I am not satisfied that the apparent failure of Ms Watson to interview four of the witnesses nominated by Ms Jones (namely Ms Tineka Suto, Ms Katharine Martyn, Ms Susan Dielemans and Ms Dianne Keene), constituted a denial of natural justice or procedural fairness to Ms Jones. This is because:
·It is clear that Ms Watson’s investigation was conducted over a relatively brief time period, reflecting QTAC’s wish that the matter be urgently investigated. Ms Watson interviewed Ms Jones on 8 September 2009 followed by other witnesses, and Mr McAndrew received the Carol Watson Report on 28 September 2009.
·It appears that Ms Keene was on leave at the time of the investigation. It is not clear on the evidence before me why Ms Watson did not interview Ms Suto, Ms Martyn or Ms Dielemans.
·Ms Jones nominated numerous other staff members for interview by Ms Watson, all of whom were, apparently interviewed by Ms Watson.
·It is not clear on the evidence before me how information provided by Ms Suto, Ms Martyn or Ms Dielemans could or would have influenced Ms Watson in favour of Ms Jones in forming conclusions.
In any event I note that, in her letter of 29 October 2009, Professor Terry invited Ms Jones to nominate any further staff members Ms Jones believed should be interviewed in order to assist QTAC in making a sound decision. In their letter of 11 November 2009, Ms Jones’ solicitors stated that Ms Jones had a list of interviewees to address specific allegations against her and witnesses to events alleged by Mr Williams, however Ms Jones preferred to keep that list confidential until she was assured by the QTAC Board that due process of the investigation would occur.
I consider that any complaint by Ms Jones concerning the failure of Ms Watson to interview Ms Suto, Ms Martyn, Ms Dielemans or Ms Keene was rectified by Professor Terry’s offer of 29 October 2009.
Diary notes of Mr Walter Williams
Fifth, Ms Jones claimed that Ms Watson relied too heavily on the views of Mr Walter Williams notwithstanding that three of the four managers told Ms Watson that their relationship with Ms Jones was positive. However this claim is not accurate. Ms Watson gave evidence that she gave an “enormous amount of weight” to information supplied by Mr Richard Armstrong, one of the four QTAC managers. According to Ms Watson, Mr Armstrong told her that in recent times he had had a good relationship with Ms Jones, but he had also said:
Whatever is being said about Elizabeth and her behaviour, I can believe it because I experienced it. I went into almost breakdown territory. I paid for my own quite in-depth psychological counselling. It cost a lot of money. I’m really pleased that I've made the transition. I now let things run over me. But whatever people are saying, I assure you she is capable of it. (TS p 698 ll 25-29)
I accept Ms Watson’s evidence that she relied to a significant degree on information provided by Mr Armstrong, and accordingly not “too heavily” on Mr Williams’ views.
Further, in relation to Mr Walter Williams’ diary notes, I consider that the interview of Mr Walter Williams by Ms Watson and her reference to his diary notes did not preclude QTAC from subsequently asking Ms Jones to respond to the claims in those notes. As I have already observed, Mr Williams is the company secretary of QTAC. This is a senior position in that organisation. To that extent his views must invariably be of interest to the Board. In any event QTAC has asked Ms Jones to comment on those diary notes. The obvious inference for me to draw from that course of action is that, notwithstanding Mr Williams’ seniority in QTAC, QTAC has not unreservedly accepted Mr Williams’ version of events, and seeks Ms Jones’ views.
I do not consider that QTAC has “relied” on those diary notes as claimed by Ms Jones – indeed no decision has been made by QTAC, in reliance on those notes or otherwise. QTAC has properly asked Ms Jones to comment on the diary notes. The fact that Ms Jones may consider such diary notes objectionable or unreliable does not mean that, in asking her to comment on them, QTAC has acted without according Ms Jones natural justice.
Nicola Bowes’ apology
Sixth, much hearing time was spent on the question whether, in light of what appears to have been Dr Bowes’ deliberate disobedience of a direction by Ms Jones not to attend the meeting of 4 August 2009, Dr Bowes had or had not personally apologised to Ms Jones at that meeting for attending the meeting (as distinct from making a general apology to the meeting room or Dr Bowes’ manager).
It is common ground that Ms Jones reprimanded Dr Bowes for her actions on the day following that meeting. However in her report, Ms Watson considered that Dr Bowes’ allegation of inappropriate behaviour by Ms Jones, in the form of aggressive and intimidating behaviour by Ms Jones to Dr Bowes on 5 August 2009 during the course of that reprimand, was substantiated.
Ms Jones claims that the minutes of that meeting do not support such a conclusion, and that Ms Watson’s conclusions demonstrate bias against Ms Jones. In my view however, an inference of bias in Ms Watson against Ms Jones for that reason cannot be drawn. This is because:
·Dr Bowes gave evidence that she had directed her apology to Ms Jones at the meeting of 4 August 2009 (TS p 522 ll 21-24, p 523 ll 31-33). It is clear that Ms Watson interviewed Dr Bowes as part of the investigation.
·The issue for Ms Watson to consider was whether Dr Bowes’ complaint of bullying by Ms Jones on 5 August 2009 was substantiated. Whether or not Dr Bowes had properly apologised to Ms Jones during the meeting of 4 August 2009 in respect of her conduct was a factor for consideration, nothing more. I note that Ms Watson does not actually conclude in her report that Dr Bowes apologised specifically to Ms Jones. Indeed Ms Watson recommended in her report that Dr Bowes provide a formal written apology to Ms Jones.
·In her report, Ms Watson gave detailed reasons as to why she formed her conclusions in respect of Dr Bowes’ complaint. In particular, Ms Watson referred to information she received from staff who witnessed Dr Bowes’ distress after her meeting of 5 August 2009 with Ms Jones.
·At the hearing, both Dr Bowes and Mr Walter Williams gave evidence as to Dr Bowes’ distress following her discussion with Ms Jones on 5 August 2009.
I am not persuaded that Ms Watson’s findings were other than open on the material before her, and to which she referred in her report. I can identify no bias in Ms Watson. Again, the fact that Ms Jones may object to Ms Watson’s conclusions does not, in my view, suggest bias by Ms Watson or a denial of natural justice to Ms Jones.
The QTAC Board and the Carol Watson Report
Seventh, I can identify no unfair treatment of Ms Jones in respect of the Board considering the Carol Watson Report, asking Ms Watson questions as to its contents, deciding to vary the process of the investigation such that Professor Terry and Mr McAndrew would speak personally with Ms Jones, and deciding to continue the investigation process at a time when Ms Jones had not seen the report.
I have already stated that it is clear on the evidence that, after receipt of the Carol Watson Report, as soon as possible Professor Terry wanted the view of the Board as to steps she and Mr McAndrew should take in respect of the investigation. The Board teleconference of 8 October 2009 was, in my view, a proper opportunity for the other members of the QTAC Board to discuss the report and ask Ms Watson questions before the process continued.
The Board decided that Professor Terry and Mr McAndrew would speak personally with Ms Jones, taking the investigation out of Ms Watson’s hands. I see no inherent unfairness or absence of natural justice in such an approach. Indeed it is difficult to identify Ms Jones’ objection to this development in light of her strenuous objections to Ms Watson’s findings and alleged attitude towards Ms Jones.
Further, on 12 October 2009, Professor Terry and Mr McAndrew provided Ms Jones with a copy of the Carol Watson Report without Ms Watson’s recommendations. I see no inherent unfairness or absence of natural justice in that action, given that:
·The investigation of the complaints was continuing, and indeed Professor Terry and Mr McAndrew met with Ms Jones on 13 October 2009 to discuss the Carol Watson Report without the recommendations.
·QTAC wanted Ms Jones’ response to the findings in the Carol Watson Report, and has provided her with ample opportunities to do so.
·Most importantly, the Board has not yet decided to implement any of Ms Watson’s recommendations. They remain merely the recommendations of the investigator, and options which, in Ms Watson’s view, the Board could consider. It is clear that the Board did not accept, and to date has not unequivocally accepted, those recommendations because the Board continued to seek Ms Jones’ views.
Ongoing dialogue
Eighth, there has been ongoing dialogue between QTAC and Ms Jones, with QTAC making, in my view, every opportunity for Ms Jones to present her response to serious allegations. I note, for example that when Ms Jones’ solicitors wrote to Professor Terry on 30 October 2009 referring to the extensive materials forwarded by QTAC to Ms Jones, the fact that QTAC had sought a response from Ms Jones within a short time frame, and the fact that Ms Jones was in the course of preparing substantial Board papers for the QTAC Board meeting, Professor Terry responded on the same day:
·extending by an additional week the time in which QTAC sought a response from Ms Jones; and
·enclosing a schedule setting out statements recorded by Mr Walter Williams in his diary notes which were of concern to QTAC, in order to assist Ms Jones in her response.
Further, in her letter of 29 October 2009 to Ms Jones’ solicitors, Professor Terry offered Ms Jones the opportunity to nominate additional staff members of her choosing for interview to assist QTAC in making its decision.
Conclusion
In summary, I consider that QTAC has followed a comprehensive, independent and fair process to investigate the complaints against Ms Jones. Ms Jones has had multiple opportunities to respond to the formal complaints of staff, the allegations made by the ASU in respect of Ms Jones’ alleged mistreatment of QTAC staff, and the findings of the independent investigator. No decision has yet been made by QTAC as to disciplinary action – if any – which will result from the investigation. On the evidence before the Court all issues which could form the basis for a decision by QTAC have been put to Ms Jones for her response.
To the extent that there may have been flaws in the process adopted by QTAC, I note comments of the majority of the High Court in Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 at 578 where their Honours said:
It is not in doubt that, where a decision-making process involves different steps or stages before a final decision is made, the requirements of natural justice are satisfied if “the decision-making process, viewed in its entirety, entails procedural fairness”.
(cf Mason CJ in The State of South Australia v O’Shea (1987) 163 CLR 378 at 389)
I consider that, viewed in its entirety, the decision-making process applied by QTAC in these circumstances entailed procedural fairness.
THE ESTOPPEL CAUSE OF ACTION
Ms Jones’ estoppel cause of action is found in paras 12C-12F of her Amended Statement of Claim. These paragraphs provide:
12C. Further, or alternatively, on about 29 October 2009, the Respondent represented to the Applicant and induced the Applicant to assume, and the Applicant did assume, that any decision with respect to the Applicant’s employment would not be made without a fair process, including the provision of natural justice.
PARTICULARS
Letter to the Applicant from Professor Deborah Terry on behalf of the Respondent dated 29 October 2009.
12D. The Applicant acted in reliance on the Respondent’s representation.
PARTICULARS
Letter to Professor Terry from the Applicant dated 11 November 2009.
12E. The Respondent knew the Applicant would act, or intended the Applicant to act, on the representation and/or assumption pleaded in paragraph 12C herein.
12F. The Applicant has and/or will suffer detriment if the representation and/or assumption is not fulfilled.
PARTICULARS
(a) Disciplinary action including termination of employment;
(b) Damage to reputation.
1. Did QTAC represent to Ms Jones that any decision with respect to her employment would not be made without a fair process, including the provision of natural justice?
In this case QTAC has conceded that, in Professor Terry’s letter of 29 October 2009, Professor Terry made a representation to Ms Jones:
·that QTAC intended to follow a fair process, including the provision of natural justice; and
·that Ms Jones would be afforded an opportunity to respond to the complaints made.
However QTAC submits that it has complied with this representation. I agree that QTAC has complied. I have already given detailed reasons for my findings that QTAC followed a process fair to Ms Jones in dealing with the complaints against her, including providing natural justice.
2. Has Ms Jones relied on this representation?
In oral closing submissions, Mr Spry for Ms Jones submitted, in summary, that Ms Jones has relied on this representation to her detriment in that:
·Not only had the representation been made to Ms Jones, but there had been a representation made to a wide number of third parties, including the ASU, that there was a fair process on foot.
·Accordingly external parties were entitled to assume that whatever action was taken by the Board had been taken as a consequence of a fair process, however this was not the case.
·Therefore clearly there had been a detriment by the failure of the respondent to comply with its representation (TS p 819 ll 23-29).
I do not accept these submissions. In the circumstances of this case I am unable to see how an alleged assumption by third parties (including the ASU) that QTAC would provide natural justice to Ms Jones following a statement by QTAC that it would so act, translates into reliance by Ms Jones on the QTAC representation. Even had there been a representation to third parties – and in this case the representation is specifically identified by Ms Jones as being in a letter of 29 October 2009 to her solicitors from Professor Terry – I am unable in these circumstances to identify a link between such representation and reliance by Ms Jones.
In any event I am unable to identify how, as a general proposition, Ms Jones has relied on QTAC’s representation that it would follow a fair process. Indeed in the letter of 11 November 2009, Ms Jones (through her solicitors) indicated that QTAC had not accorded Ms Jones natural justice because, inter alia:
·QTAC’s reliance on the Carol Watson Report was flawed;
·QTAC’s conduct of the investigation, including its requirements of Ms Jones to respond to allegations, had been oppressive and unfair;
·both QTAC and the investigator had failed to place the ASU’s allegations and general involvement within the context of the enterprise agreement negotiations; and
·the Carol Watson Report was biased and flawed.
Ms Jones’ solicitors also stated in that letter that Ms Jones had “little faith in the current process”.
In my view such comments contradict any claim by Ms Jones that she had relied on any representation by QTAC that it would act with procedural fairness.
3. Has Ms Jones altered her position to her detriment as a result of her reliance, or will she suffer detriment as a result of her reliance, on the representation?
In any event, I am unable to identify how Ms Jones has altered her position to her detriment, even had she relied on the QTAC representation.
The representation by QTAC that it would follow a fair process was made by Professor Terry in her letter of 29 October 2009. Ms Jones’ original application in these proceedings was filed little more than two weeks later on 16 November 2009. No evidence was given by Ms Jones as to how she altered her position because of that representation during that period, or any detriment she suffered as a result. Further, Ms Jones has not demonstrated that she would have acted differently had the representation not been made.
Finally, Ms Jones’ claim in para 12F of the Amended Statement of Claim that she will suffer detriment if QTAC’s representation is not fulfilled is not supported by any evidence, or indeed any specific submissions by her. It is not clear at this stage that Ms Jones will be subject to any disciplinary action or any damage to her reputation as she claims notwithstanding the investigation process adopted by QTAC – indeed the fact that QTAC has not yet made a decision with respect to the complaints against Ms Jones was a recurring theme throughout these proceedings.
In my view Ms Jones’ claim that she is entitled to relief because QTAC has failed to fulfil its representation that no decision in respect of Ms Jones’ employment would be made without a fair process, including the provision of natural justice, is not substantiated.
CONCLUSION
In my view the proper order is that the application be dismissed.
I certify that the preceding two hundred and sixty-three (263) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier. Associate:
Dated: 29 April 2010
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