Klein v Metropolitan Fire and Emergency Services Board

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FEDERAL COURT OF AUSTRALIA

Klein v Metropolitan Fire and Emergency Services Board [2012] FCA 1402

Citation: Klein v Metropolitan Fire and Emergency Services Board [2012] FCA 1402
Parties: PHILIP KLEIN v METROPOLITAN FIRE AND EMERGENCY SERVICES BOARD
File number: VID 370 of 2012
Judge: GORDON J
Date of judgment: 10 December 2012
Catchwords:

INDUSTRIAL LAW – general protection claim – requirement of industrial activity – expulsion from union does not constitute industrial activity – applicant did not observe union ban on applying for promotion – adverse action – requirement of injury or prejudicial alteration – requirement of discrimination – discrimination includes indirect discrimination – Fair Work Act 2009 (Cth), ss 346, 347

INDUSTRIAL LAW – general protection claim – adverse action – applicant appointed himself his own bargaining agent – respondent excluded applicant from negotiations of enterprise agreement – respondent and relevant union agreed to consultative provisions – whether respondent’s adherence to consultative provisions constitutes adverse action

INDUSTRIAL LAW – objectionable terms – term of enterprise agreement requiring that proposals for change must be presented to a committee composed of employer and union representatives – Fair Work Act 2009 (Cth), ss 12, 356
Legislation: Acts Interpretation Act 1901 (Cth)
Equal Opportunity Act 1984 (Vic)
Evidence Act 1995 (Cth)
Fair Work Act 2009 (Cth)
Fair Work Bill 2008 (Cth)
Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth)
Industrial Relations Act 1988 (Cth)
Workplace Relations Act 1996 (Cth)
Cases cited: Australian and International Pilots Association v Qantas Airways Ltd (2006) 160 IR 1
Australian Industry Group v Fair Work Australia (2012) 205 FCR 339
Australian Licenced Aircraft Engineers Association v International Aviation Service Assistance Pty Ltd (2011) 193 FCR 526
Australian Liquor, Hospitality & Miscellaneous Workers Union v Liquorland (Aust) Pty Ltd (2002) 114 IR 165
Australian Workers Union v BHP Iron-Ore Pty Ltd (2001) 106 FCR 482
BHP Iron Ore Pty Ltd v Australian Workers’ Union (2000) 102 FCR 97
Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 290 ALR 647
Burnie Port Corporation Pty Ltd v Maritime Union of Australia (2000) 104 FCR 440
Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Postal Corporation (2010) 201 IR 363
Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Laing (1998) 89 FCR 17
Community and Public Sector Union v Telstra Corporation Ltd (2001) 107 FCR 93
Construction, Forestry, Mining and Energy Union (Mining and Energy Division) v Tahmoor Coal Pty Ltd (2010) 195 IR 58
Finance Sector Union of Australia v Commonwealth Bank of Australia Ltd (2005) 147 FCR 158
General Accident Fire & Life Assurance Corporation Ltd v Commissioner of Pay-roll Tax (NSW) [1982] 2 NSWLR 52
General Motors Holden Pty Ltd v Bowling (1976) 12 ALR 605
Hadgkiss v Sunland Constructions Pty Ltd (2007) 158 FCR 193
Helal v McConnell Dowell Constructors (Aust) Pty Ltd (2010) 193 FCR 213
May v O’Sullivan (1955) 92 CLR 654
McDonald’s Australia Limited v…
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Details
Case
[2012] FCA 1402
Decision Date

CaseChat Overview and Summary

In the matter of Klein v Metropolitan Fire and Emergency Services Board, the Federal Court considered whether the Board had engaged in adverse action against Mr Klein in contravention of the Fair Work Act 2009 (Cth). The dispute centred on whether certain conduct by the Board amounted to adverse action as defined in section 342(1) of the Act, specifically concerning the approval of an enterprise agreement and the union's directive against applying for the position of Inspector. Mr Klein argued that the Board's actions in approving the enterprise agreement and allowing the union's directive to stand constituted adverse action, while the Board contended that such actions did not meet the statutory definition of adverse action.

The central legal issues revolved around the interpretation of the term "adverse action" under the Fair Work Act, particularly whether the Board's conduct, including the approval of the enterprise agreement and the union's directive, could be considered adverse action. The court had to determine if the Board's actions constituted specific or general adverse action as per section 342(1) of the Act and whether these actions prejudiced Mr Klein in his employment or altered his position to his detriment. Additionally, the court needed to examine if the alleged proscribed reason for the conduct fell within the categories outlined in sections 346 and 347 of the Act.

The court found that the Board's conduct, including the approval of the enterprise agreement and the union's directive, did not constitute adverse action under the Fair Work Act. The court reasoned that the approval of an enterprise agreement by the Fair Work Australia (FWA) or by a majority of employees did not amount to adverse action by the employer. The court held that the definition of adverse action required the conduct to be directly attributable to the employer. Consequently, the Board's actions, while possibly adverse to Mr Klein, did not directly prejudice him in his employment or alter his position to his detriment in a manner that would constitute adverse action. The court also noted that any changes to Mr Klein's position occurred by operation of the enterprise agreement and not through the conduct of the Board.

As a result of the court's reasoning, the Board was not found to have contravened the Fair Work Act by engaging in adverse action against Mr Klein. The court dismissed Mr Klein's claims, and no further orders were made.

Orders

Orders of the court

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Background

Background to the litigation

The applicable principles are well established and include that:1.adverse action may comprise specific action taken against an individual employee, or general action that is adverse to an unidentified, but ascertainable, group of employees: Community and Public Sector Union v Telstra Corporation Ltd (2001) 107 FCR 93 at [21];2.the applicant bears the onus of proving each element of each alleged statutory contravention: May v O’Sullivan (1955) 92 CLR 654 at 657. Therefore, in the present case, Mr Klein must establish that:2.1the conduct complained about in fact occurred;2.2that conduct constitutes “adverse action” as defined in s 342(1) of the FW Act; and2.3the alleged proscribed reason for that conduct is proved and within one or more of the relevant categories in ss 346 and 347 of the FW Act;3.the civil standard of proof applies but, in applying that standard, the court is required to take into account the nature of the cause of action, the defence, the nature of the subject matter of the proceedings and the gravity of the matters alleged: s 140(2) of the Evidence Act 1995 (Cth);4.the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what is to be proved. In the present case, the claims are in the nature of civil penalty proceedings: Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449 at 449-450 and Hadgkiss v Sunland Constructions Pty Ltd (2007) 158 FCR 193 at [9]-[11].B FACTS(1) 1981 – Sept 2001: Klein’s Employment with the MFESB (and its predecessors) Mr Klein was first employed by the MFESB as an operational firefighter in April 1981. At that time, it was a requirement for employment to become a member of the UFU. Mr Klein joined the UFU in April 1981 and remained a member until his expulsion in early 2002. In 1985, Mr Klein was promoted to the rank of Senior Firefighter, a rank now known as Leading Firefighter. In 1986, he was further promoted to the rank of Station Officer Grade 2, a rank now known as Station Officer. In 1988, he was further promoted to the rank of Station Officer Grade 1, a rank now known as Senior Station Officer. Each promotion was through merit based examination. In August 1990, the UFU was registered as an organisation of employees under the Industrial Relations Act 1988 (Cth). (2) Sept 2001 – Dec 2001: Klein’s Application for and Appointment as Inspector In early September, the UFU called a special general meeting of members. Mr Klein attended that special general meeting of UFU members on 18 September 2001. A motion that “[n]o member shall apply for an Inspector or equivalent position until such time as the Certified Agreement for this position is finalised to the satisfaction of the membership” was carried unanimously. After the meeting on 18 September 2001, Mr Klein received a number of communications from the UFU urging members to observe the ban on applying for an Inspector position. The communications were in the form of UFU Bulletins and were dated 8 October, 9 October, 14 November and 21 December 2001.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Items 1(b) and (c) will be addressed first.(a) Injury or prejudicial alteration It was common ground that:1.the phrase “injures the employee in his or her employment” in Item 1(b) of s 342(1) of the FW Act extends to injury of any compensable kind, a legal injury, or an adverse effect on an existing legal right: Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (No 3) (1998) 195 CLR 1 at [4]; Australian and International Pilots Association v Qantas Airways Ltd (2006) 160 IR 1 at [13]-[14] and Unsworth v Tristar Steering and Suspension Australia Limited (2008) 175 IR 320 at [25];2.the phrase “alters the position of the employee to the employee’s prejudice”, in Item 1(c) of s 342(1) of the FW Act, is a broad additional category of adverse action 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; and3.a prejudicial alteration to the position of an employee for the purposes of Item 1(c) of s 342(1) of the FW Act, may occur even though the employee suffers no loss or infringement of a legal right; it will occur if the alteration in the employee’s position is real and substantial rather than merely possible or hypothetical: Patrick Stevedores at [4]; Australian and International Pilots Association v Qantas Airways Ltd at [15] and Qantas Airways Ltd v Australian Licensed Aircraft Engineers Association (2012) 202 FCR 244 at [30]-[32]. The area of dispute concerned identification of the relevant conduct and, in particular, whether the conduct said to constitute the adverse action had to be the action of the MFESB. The MFESB submitted that the relevant conduct had to be action of the MFESB and that therefore: 1.conduct of the UFU is not conduct which can constitute adverse action by the MFESB;2.approval of an enterprise agreement by a majority of employees cannot constitute adverse action of the MFESB; and 3.approval of an enterprise agreement by FWA cannot constitute adverse action of the MFESB. Put another way, the MFESB submitted that the definition of “adverse action” requires that the conduct must be that of an employer directed to an employee. In support of that contention, the MFESB referred to the use of the singular “employee” in s 342(1) of the FW Act (see [82] above). The MFESB’s particular reliance upon the use of the singular “employee” is misplaced: cf s 23 of the Acts Interpretation Act 1901 (Cth).However, as a matter of statutory construction, s 342(1) of the FW Act does require that:1.the position is to be examined in the light of the circumstances of an individual employee (or group of similarly treated employees): Community and Public Sector Union v Telstra Corporation Limited at [17]-[21];2.an employee’s position is to be taken at the time the conduct occurred and is to be assessed by reference to the employee’s then existing entitlements under the relevant industrial instrument: Burnie Port Corporation Pty Ltd v Maritime Union of Australia (2000) 104 FCR 440 at [23] and Australian Liquor, Hospitality & Miscellaneous Workers Union v Liquorland (Aust) Pty Ltd (2002) 114 IR 165 at [25]; and3.the employee, individually speaking, must be in a worse situation after the relevant conduct than before it and the deterioration must have been caused by the employer’s conduct: BHP Iron Ore Pty Ltd v Australian Workers’ Union (2000) 102 FCR 97 at [35]-[37] and [45]-[48]; Australian Workers Union v BHP Iron-Ore Pty Ltd (2001) 106 FCR 482 at [52]-[54]; Community and Public Sector Union v Telstra Corporation Limited at [17]-[21] and Finance Sector Union of Australia v Commonwealth Bank of Australia Ltd (2005) 147 FCR 158 at [23]-[30]; 4.if the deterioration occurs by operation of the law or an industrial instrument the employer will not have altered the position of the employees individually speaking; the change in the position of the employees individually speaking occurs by operation of the relevant legislation rather than the conduct of the employer in making the enterprise agreement: Australian Liquor, Hospitality & Miscellaneous Workers Union v Liquorland (Aust) Pty Ltd (2002) 114 IR 165 at [24]-[26], [30] and [37].