Lever v Australian Nuclear Science and Technology Organisation

[2007] FCA 1251

FEDERAL COURT OF AUSTRALIA

Lever v Australian Nuclear Science and Technology Organisation
[2007] FCA 1251

WORKPLACE RELATIONS – purported breach of Part XA of the Workplace Relations Act 1996 (Cth) – applicant joined statutory corporation as employee – promoted to position at level below that sought – agitated for promotion to higher level – appointed by trade union as worksite delegate – deterioration in employment relationship though status quo maintained – whether employer’s conduct in declining promotion to higher level and conduct incidental to dispute involved dismissal or injury in employment or alteration of position to applicant’s prejudice or discrimination according to statutory provisions – whether operation of statutory presumption crystallised – whether applicant established operation of statutory presumption – series of fourteen instances of statutory breach propounded – extensive evidence and submissions made in course of lengthy proceedings – proceedings dismissed

Conciliation and Arbitration Act 1904 (Cth) s 5
Federal Court of Australia Act 1976 (Cth) s 50
Privacy Act 1988 (Cth) (generally)
Workplace Relations Act 1996 (Cth) Pt XA, ss 298K(1), 298L, 298T and 298V
Workplace Relations Amendment (Work Choices) Act 2005 (Cth) (generally)
Workplace Surveillance Act 2005 (NSW) (generally)

Workplace Relation Regulations 2006 (Cth) Ch 7 reg 4.53

Patrick Stevedores Operations No. 2 Pty Ltd v Maritime Union of Australia (No. 3) (1998) 195 CLR 1 referred to
BHP Iron Ore Pty Ltd v Australian Workers’ Union (2000) 102 FCR 97 referred to
Australian Workers’ Union v BHP Iron-Ore Pty Ltd (2001) 106 FCR 482 referred to
Community and Public Sector Union v Telstra Corporation Ltd (2000) 99 IR 238 referred to
NationalUnion of Workers v Qenos Pty Ltd (2001) 108 FCR 90 cited
Australian and International Pilots Association v Qantas Airways Ltd 160 IR 1 referred to
Maritime Union of Australia v CSL Australia Pty Ltd (2002) 113 IR 326 referred to
General Motors-Holden Pty Ltd v Bowling (1976) 51 ALJR 235 referred to
Construction, Forestry, Mining and Energy Union v Coal and Allied Operations Pty Ltd (1999) 140 IR 131 referred to
McIlwain v Ramsey Food Packaging Pty Ltd (2006) 154 IR 111 referred to
Jones v Dunkel (1959) 101 CLR 298 referred to
Finance Sector Union of Australia v Australian & New Zealand Banking Group Ltd (2002) 120 FCR 107 referred to
Construction, Forestry, Mining and Energy Union v Coal and Allied Operations Pty Ltd (1999) 140 IR 131 referred to
Maritime Union of Australia v Geraldton Port Authority (1999) 93 FCR 34 referred to

Lewis v Qantas Airways Ltd (1981) 54 FLR 101 referred to
Australian and International Pilots Association v Qantas Airways Ltd (2006) 160 IR 1 referred to

RONALD LEVER v AUSTRALIAN NUCLEAR SCIENCE AND TECHNOLOGY ORGANISATION
NSD 68  OF 2006

CONTI J
16 AUGUST 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 68 OF 2006

BETWEEN:	RONALD LEVER Applicant
AND:	AUSTRALIAN NUCLEAR SCIENCE AND TECHNOLOGY ORGANISATION Respondent

JUDGE:	CONTI  J
DATE OF ORDER:	16 AUGUST 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application be dismissed.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 68  OF 2006

BETWEEN:	RONALD LEVER Applicant
AND:	AUSTRALIAN NUCLEAR SCIENCE AND TECHNOLOGY ORGANISATION Respondent

JUDGE:	CONTI  J
DATE:	16 AUGUST 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

The context and nature of the employment disputation between the parties in outline

1. The subject proceedings brought by the applicant Ronald Lever (‘Mr Lever’) against his present employer, the Australian Nuclear Science and Technology Organisation (‘ANSTO’), for relief under s 298U of the Workplace Relations Act 1996 (‘the Act’) were commenced by application filed on 7 February 2006.  The circumstantial origins the subject of Mr Lever’s complaints in the proceedings are referrable to what he asserts to have been the inadequacy of his promotion within the employment ranks of that well known organisation.  Mr Lever commenced his employment with ANSTO on 28 April 1999 as an IT System Administrator, initially on the basis of a two year fixed term; he has since continued in that employment to the present time, so far as my understanding extends.  The nature and extent of his complaints as to that inadequacy of promotion within ANSTO had their apparent origins in the following year 2000, and led ultimately to the commencement of the final hearing of the proceedings on 27 November 2006.  That hearing extended over ten hearing days and concluded with the addresses of counsel for both parties on 28 June 2007, being oral addresses which followed upon the earlier lodgment with the Court by the respective parties between them of 166 pages of written submissions settled by counsel, comprising Mr Lever’s submissions in chief of 93 pages furnished on 22 May 2007, followed by ANSTO’s response thereto of 57 pages more closely word processed (being therefore of at least similar length in reality), and ultimately Mr Lever’s submissions in reply of 16 pages. 

2. The terms and conditions of Mr Lever’s employment were at all material times the subject of the ANSTO (General) Award 2000 and of a series of enterprise agreements made under the auspices of the Act during the years 1997, 2000 and 2002. His claims for present relief arose from what were described broadly by his counsel as ‘numerous alleged contraventions of the Act’. The present proceedings raises issues as to the liability of Mr Lever’s employer ANSTO for statutory breaches upon the footing that if any such liability should be established by the Court’s findings, relief by way of compensation, and also by way of injunction and the imposition of a penalty, would be subsequently sought by Mr Lever in the context of a continuation of the hearing of the proceedings by the Court.

3. Prior to commencement of his employment by ANSTO, Mr Lever had conducted his own business involving what he described as ‘three retail outlets and manufacturing premises, with approximately 16 staff’.  Also prior to his commencement of that employment and until 1999, he had undertaken an undergraduate degree in IT Computer Science at the University of Wollongong.  Upon commencing his employment by ANSTO on 28 April 1999, Mr Lever was graded as a ‘Technical Officer Grade 3’, that being the equivalent of the classification ‘Professional Officer Class One (PO1) Level 4’ as so described in the relevant ANSTO enterprise agreements.  The abbreviation ‘PO’ connoted ‘professional officer’.  At least between 28 April 1999 and June 2002, all ANSTO employees were classified by so-called ‘work level descriptors’ as contained within the following industrial documents so described by Mr Lever:

   (i)the ANSTO (General) Award 2000;

   (ii)the ANSTO Enterprise Agreement 2000; and

   (iii)HRES P 4.1 Rev A from the ANSTO Enterprise Agreement 1997.

   Such ‘work level descriptors’ were said to appear more specifically within documents bearing the headings ‘ANSTO Professional Officer Classification Standards’ and ‘ANSTO Classification Standards Senior Officer’.

4. Under the terms of the ANSTO Enterprise Agreements 1997 and 2000, ANSTO was required to adopt an annual assessment system for its employees called the ‘Career Advancement System’ (‘CAS’). Reference was made in that Enterprise Agreement 2000 to the said ‘HRES P4.1 Rev A’ instrument. That latter instrument was said by Mr Lever however to have never been formally agreed to ‘on site’ as between ANSTO and the relevant Unions, for whatever relevance for present purposes so much may involve. Reference to HRES P 4.1 Rev A appeared under the heading ‘44 Career Advancement System’, at par 44.1.3 of the said 2000 Agreement, and provided for ‘… procedures and processes for merit promotion and advancement…’. The operation of those industrial structures was verified by Ms Hammerton, a longstanding senior union representative at ANSTO, and also by Mr McIntyre who held at all material times from the year 2002 the positions of President of the Australian Manufacturing Workers’ Union (‘AMWU’), the ANSTO Site Executive, and the Honorary State President of the Technical and Supervisory and Administrative Division of the AMWU, NSW. Between 2 April 1998 and at least November 2000, ANSTO was said by Mr Lever to have failed to set objectives for him, pursuant either to the CAS or to clause 6.3.1 of HRES P 4.1 Rev A, and thus for the CAS assessment yearly periods commencing on 1 July 1999 and 1 July 2000. There was produced by ANSTO to the Court by Mr Davies, an Industrial Relations Advisor in the employ of ANSTO, by way of exhibit to his affidavit evidence of 27 September 2006 (par 15), a document similarly styled as that in [3(iii)] above, being HRES P 4.1 Rev B, which he described as having taken effect on 21 May 2002 in the place of the so-called Rev A. I should interpolate to record that it was the contention of ANSTO from the outset that ‘… procedures of [ANSTO] for determining employee grades and levels contained in [the] document known as HRES P 4.1 … are irrelevant to the case pleaded in the Points of Claim’, which case was said by ANSTO to make ‘no allegation of a breach of s 298K in respect of [ANSTO’s] reliance or non-reliance on these procedures’. For that reason it was said by ANSTO to be ‘unnecessary for the Court to trouble itself with [that] ‘subjective and difficult task’.

5. Mr Lever tendered into evidence a document called ‘Objective Setting and Assessment Form’ relating to the period of time 1/1/1999-2000, which had been apparently prepared by him and in any event lodged by him with ANSTO in November 2000, and which related to his asserted achievements during the ANSTO assessment periods for 1999 and 2000.  In early December 2000, Mr Lever’s then Divisional Director of ANSTO, Dr Doherty, had returned that document to Mr Lever and had promoted him to ‘PO2 – bottom step’ (Professional Officer 2), that promotion apparently constituting an incremental increase in Mr Lever’s classification under the ANSTO Enterprise Agreement 2000 above Mr Lever’s prior status of PO1.  That promotion involved Mr Lever being granted two salary increments, by way of ‘skipping PO1, level 5,… and moving directly to the bottom level in the higher PO2 grade’, so ANSTO emphasised.  The extent of that promotion was said to have nevertheless disappointed Mr Lever, because he believed that he should have been promoted to Senior Professional Officer 1 (‘SPO1’). 

6. Mr Lever did not sign (or perhaps more accurately, counter-sign) that Objective Setting and Assessment Form for the period of time from 1 January 1999 to 2000, as so returned to him in early December 2000 by Dr Doherty.  In early to mid February 2001, Dr Doherty approached Mr Lever in the ANSTO workplace and asked him why he had not ‘signed off’ on the form.  Mr Lever informed Dr Doherty in response that he had not done so because he considered that he ought to have been promoted at least to the level of SPO1.  Ultimately on or about 12 February 2001, Mr Lever did sign that Objective Setting and Assessment Form for the period from 1 January 1999 to 2000.  Subsequently, however, by letter dated 22 February 2001 to Mr Lever, Dr Doherty confirmed his promotion to the lower level of PO2, being lower than SPO1. 

7. In May 2002, Mr Lever completed an employee assessment form provided by ANSTO in respect of the year from July 2000 to June 2001 and submitted the same to Dr Doherty.  In the following month of June 2002, so ANSTO further recorded, Mr Lever and other members of ANSTO staff were offered interviews by Ms Linda Houseman of its Human Resources Department for the purposes of a so-called role analysis, and Mr Lever’s interview with her took place on 21 June 2002.  Subsequently Ms Houseman provided to Mr Lever written material headed ‘Role Profile’, which purportedly, ANSTO submitted, explained to him ‘that he was working at a level above that of his substantive classification’.  In July 2002, Mr Lever completed an assessment form for the year July 2001 to June 2002 and in the following month of August 2002, he submitted to ANSTO the same together with the assessment form for the preceding year July 2000 to June 2001.  According to Mr Lever’s employment history which he presented to the Court, Mr Lever commenced in or about July or August 2002 to act as a delegate to the Community and Public Sector Union (‘CPSU’), that being an ‘industrial association’ for the purposes of the Act, but his evidence was imprecise as to when his joinder of the Union actually occurred. He did not produce any documentary material relating to that joinder.

8. The consequence of Dr Doherty’s decision in response to Mr Lever’s completion of those forms, according to Mr Lever, was that he was thereby given ‘one increment for each assessment year only, which meant I… was not promoted’; that was said by him to be because he remained at the same substantive level or classification, that being ‘Band 5’ under the classifications that operated pursuant to the 2002 Enterprise Agreement.  ANSTO disagreed with that conclusion, pointing out that increments were not automatic, and each constituted a promotion.  Thereafter Mr Lever wrote directly to the then ANSTO Executive Director, Professor Garnett, and sought to resolve what he described as the classification dispute which had thus arisen, but apparently without receiving any response.  On 21 August 2002, Mr Lever met with Mr Crakanthorp (to whom, in the words of Mr Lever, he was ‘subordinate [in] line management’) and also Dr Doherty on the subject of his employment classification, or what ANSTO described as ‘his claim for bigger promotion’.  However, according to Mr Lever, Dr Doherty said to him ‘[i]t will take you 12 years also, Ron’, Dr Doherty thereby referring to Mr Crakanthorp’s promotion experience at ANSTO.  In January 2003, Mr Lever sought a so-called ‘peer review’ to assist in the resolution of his level or classification promotion dispute. 

9. At least from about November 2002, Mr Lever asserted to ANSTO that his work in the assessment period 1999-2000, and continuing thereafter, should have been classified at a higher level than that of ‘PO2 – bottom step’, that higher level being (as I have earlier mentioned) SPO1.  Thereafter occurred, in the description of his counsel, ongoing dispute between Mr Lever and ANSTO as to the process followed in assessing and benchmarking his role pursuant to the CAS and clause 6.3.1 of HRES P4.1.  The parties disagreed apparently as to whether or not that classification to a higher level was in fact a promotion, Mr Lever maintaining the contrary, though his reasoning in that regard was somewhat unclear, for what that might ultimately matter. 

10. On 10 January 2003 the ANSTO Enterprise Agreement 2002 was certified.  From that time, it appears that ANSTO formally commenced the operation of a new classification system whereby it ceased to apply ‘work level descriptors’ and commenced to apply ‘role characteristics’.  It was testified by Mr Lever that ‘… it was agreed and understood between ANSTO and the industrial associations on-site that the new classification system would not produce outcomes any less favourable to employees’. 

11. A further employment controversy involving Mr Lever was that early in April 2003, Mr Lever met with Mr Cullen of ANSTO and requested that ANSTO approve the payment to him of overtime for additional hours of work said to have been performed by him; however that request was refused.  Mr Cullen provided comprehensive affidavit evidence in the proceedings.   For the years 2003 to 2005 (both inclusive), he was ANSTO’s General Manager of its Corporate Services Division.  Mr Lever lodged accordingly a form of classification grievance with ANSTO, purportedly pursuant to the ANSTO Enterprise Agreement 2002, for consideration by the ANSTO reference panel.  On 23 May 2003, Professor Garnett notified Mr Lever that ANSTO had decided to refuse to hold a reference panel for the purpose of resolving his grievance.  On 17 July 2003, Dr Doherty sent emails to Mr Lever on the issue of his ongoing grievance with ANSTO concerning his classification dispute. 

12. Disputation between Mr Lever and ANSTO appeared to increase in September 2003.  Mr Lever outlined the following events which he asserted to have taken place at about that time:

    (i)ANSTO offered ‘… to set [Mr Lever’s] objectives to the level of SPO1, if [Mr Lever] did not proceed with the reference panel’, upon the footing however that ‘the agreement was to take effect only from assessment year 2003 to 2004’; however Mr Lever ‘did not accept this offer’; and

    (ii)ANSTO then notified Mr Lever that ‘it intended to carry out a role analysis on [Mr Lever’s] position’ and asserted that such analysis was ‘within ANSTO’s managerial prerogative’.

13. Subsequently in and from the year 2004, Mr Lever was elected by the CPSU as ‘site president for ANSTO’.  Prior to his election, and earlier in 2004, he had undertaken and was continuing to undertake, what were described by his counsel as, ‘… numerous union activities’.  In relation to all times during which Mr Lever performed those union activities, he appeared to acknowledge that he was remunerated by ANSTO in accordance with the ANSTO enterprise agreements. 

14. At par 79 of his affidavit of 1 June 2006, Mr Lever asserted that during 2003 he ‘noticed a change in attitude and behaviour by particular members of ANSTO management towards [him]’, that is, for the worse. ANSTO considered that the deterioration in the relationship between Mr Lever and ANSTO had begun earlier, since ANSTO’s ‘conduct of refusing the promotions that [Mr Lever] considered he deserved’ commenced before 2003.  ANSTO contended that ANSTO ‘cannot have acted for the reason that he had done, or was proposing to do things in his capacity as a union delegate, because he had not [by then] been appointed as a union delegate’.  By late October 2004 in any event, according to Mr Lever, ‘ANSTO accessed [Mr Lever’s] emails at work, which included emails received in his capacity as CPSU delegate and site president’.  Moreover from 3 November 2004 onwards, ANSTO was alleged to have subjected him to ‘a breach of duty process including an investigation and a threat to discipline’, being a process said by Mr Lever to be related ‘… inter alia, [to Mr Lever’s] work as a CPSU delegate and site president’.  Subsequently in or about February 2005, Mr Lever lodged a claim for workers compensation benefits purportedly related to ‘… psychological injury arising out of, inter alia, the circumstances relating to ANSTO accessing [Mr Lever’s] emails and the ongoing treatment of Mr Lever’.

15. Mr Lever asserted that between February 2005 and March 2005, he had not been in receipt of any remuneration other than the payment of accrued sick leave ‘whilst Comcare was determining liability in respect of the applicant’s workers compensation claim’, and further that Mr Lever ‘has not received [otherwise] remuneration since, but remains in the employ of ANSTO’.  His counsel further asserted that Mr Lever had nevertheless ‘provided to ANSTO a medical certificate from his treating GP Dr Pead dated 2 February 2005 and a further letter of Dr Pead dated 12 March 2005 in respect of [his] capacity to return to work with ANSTO on restricted duties’, but that ANSTO made ‘no efforts to find employment [for him] consistent with either the medical certificate or letter of Dr Pead’. 

    Relevant provisions of the statutory scheme

16. The provisions of the Act here immediately relevant to Mr Lever’s application, directly or indirectly, were prospectively as follows:

    ‘298K     Dismissal etc. of members of industrial associations etc.

    (1)An employer must not, for a prohibited reason, or for reasons that include a prohibited reason, do or threaten to do any of the following:

    (a)dismiss an employee;

    (b)     injure an employee in his or her employment;

    (c)alter the position of an employee to the employee’s prejudice;

    (d)refuse to employ another person;

    (e)discriminate against another person in the terms or conditions on which the employer offers to employ the other person.

…

298L       Prohibited reasons

(1)Conduct referred to in subsection 298K(1) … is for a prohibited reason if it is carried out because the employee, independent contractor or other person concerned:

(a)is, has been, proposes to become or has at any time proposed to become an officer, delegate or member of an industrial association; or

…

(h)is entitled to the benefit of an industrial instrument or an order of an industrial body; or

(i)has made or proposes to make any inquiry or complaint to a person or body having the capacity under an industrial law to seek:

(i)compliance with that law; or

(ii)the observance of a person’s rights under an industrial instrument; or

(j)has participated in, proposes to participate in or has at any time proposed to participate in a proceeding under an industrial law; or

(k)has given or proposes to give evidence in a proceeding under an industrial law; or

(l)in the case of an employee, or an independent contractor, who is a member of an industrial association that is seeking better industrial conditions… is dissatisfied with his or her conditions; or

(m)in the case of an employee or an independent contractor – has absented himself or herself from work without leave if:

(i)the absence was for the purpose of carrying out duties or exercising rights as an officer of an industrial association; and

(ii)the employee or independent contractor applied for leave before absenting himself or herself and leave was unreasonably refused or withheld; or

(n)as an officer or member of an industrial association, has done, or proposes to do, an act or thing for the purpose of furthering or protecting the industrial interests of the industrial association, being an act or thing that is:

(i)lawful; and

(ii)within the limits of an authority expressly conferred on the employee, independent contractor or other person by the industrial association under its rules; …

(2)If:

(a)a threat is made to engage in conduct referred to in subsection 298K(1) or (2); and

(b)one of the prohibited reasons in subsection (1) of this section refers to a person doing or proposing to do a particular act, or not doing or proposing not to do a particular act; and

(c)the threat is made with the intent of dissuading or preventing the person from doing the act, or coercing the person to do the act, as the case requires;

the threat is taken to have been made for that prohibited reason.

298T       Applications to the Court

(1)… an application may be made to the Court for orders under section 298U in respect of conduct in contravention of this Part.

…

298U       Orders that the Federal Court may make

In respect of conduct in contravention of this Part, the Court may, if the Court considers it appropriate in all the circumstances of the case, make one or more of the following orders:

(a)an order imposing on a person or industrial association whose conduct contravened or is contravening the provision in question a penalty of not more than:

(i)in the case of a body corporate – 300 penalty units; or

(ii)in any other case – 60 penalty units;

(b)an order requiring the person or industrial association to reinstate an employee, or to re-engage an independent contractor;

(c)an order requiring the person or industrial association to pay to an employee or independent contractor, or to a prospective employee or independent contractor, compensation of such amount as the Court thinks appropriate;

(d)an order requiring the person or industrial association not to carry out a threat made by the person or association, or not to make any further threat;

(e)injunctions (including interim injunctions), and any other orders, that the Court thinks necessary to stop the conduct or remedy its effects;

(f)any other consequential orders.’ 

1. Counsel for Mr Lever asserted from the outset that in making findings as to Mr Lever’s conduct complained of, Mr Lever was not required to provide proof of the reasons for, nor of the intention of, the conduct of ANSTO complained of in the proceedings, by reason of the operation of s 298V of the Act, stipulated in that regard as follows:

   ‘298V     Proof not required of the reason for, or the intention of, conduct

   If:

   (a)in an application under this Division relating to a person’s or an industrial association’s conduct, it is alleged that the conduct was, or is being, carried out for a particular reason or with a particular intent; and

   (b)for the person or industrial association to carry out the conduct for that reason or with that intent would constitute a contravention of this Part;

   it is presumed, in proceedings under this Division arising from the application, that the conduct was, or is being, carried out for that reason or with that intent, unless the person or industrial association proves otherwise.’

2. Counsel for ANSTO made the following threshold observations concerning the structure of Mr Lever’s case as constituted by the proceedings. The first was that although relief was purportedly sought by Mr Lever’s application under ss 298K, 298L, 298T and 298U of Part XA of the Act, and also ‘at general law’, the relief sought by Mr Lever’s amended application was only available under s 298U of the Act, and was required therefore to be made under s 298T. Those sections appeared in Part XA prior to its amendment by the Workplace Relations Amendment (Work Choices) Act 2005 (Cth), which repealed the said Part XA. However by reason of regulation 4.53 of Chapter 7 of the Workplace Relations Regulations 2006 (Cth), the present application, which was filed in this Court as I have earlier recorded on 7 February 2006, falls to be determined under and pursuant to s 298U of the Act as though the Act had not been amended by that later so-called ‘Work Choices’ legislation, so counsel further submitted. 

3. The second observation was that Mr Lever’s ‘promotion to a level lower than he considers he deserved is not an injury to him in his employment’, since ‘[a]xiomatically, his promotion is not an alternation of his position to his prejudice’. It was emphasised by ANSTO in that regard that Mr Lever ‘does not allege a demotion or a reduction in pay that could fall within either of s 298K(1)(b) or (c)’. It was further emphasised at the outset that ANSTO’s ‘promotions of [Mr Lever], which he claims were inadequate, occurred prior to him taking up the position of union delegate’, which as I have earlier recorded, commenced from about August 2002.

   The authorities to which counsel for the respective parties initially drew attention and in relation to which counsel made observations

4. Counsel for the respective parties drew attention to authorities of this Court concerning the relevant operation of the Act. First as to s 298K(1) (supra), attention was drawn by counsel for Mr Lever to the reasons for joint judgment of five members of the High Court in Patrick Stevedores Operations No. 2 Pty Ltd v Maritime Union of Australia (No. 3) (1998) 195 CLR 1 (Brennan CJ, McHugh, Gummow, Kirby and Hayne JJ), where at [4], the following appears in relation to the operation of aspects of that subsection already extracted above in these reasons:

   ‘… Paragraph (a) covers termination of employment; par (b) covers injury of any compensable kind; par (c) 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.  Proof of the reason for engaging in the prescribed conduct is the subject of s 298V….’

   It was submitted on behalf of Mr Lever that it was within that legal framework that his case had been brought, and further that ‘[i]n the light of the [foregoing judicial] observations as to the onus applicable in proceedings under Part XA of the Act, it is envisaged that significant submissions will be required in reply to meet the evidentiary case presented by [ANSTO] in seeking to discharge its onus in the matter’.

5. Counsel for ANSTO drew attention to a number of authorities also relating to the relevant operation of the legislation. Specifically in relation to s 298K, in the context of BHP Iron Ore Pty Ltd v Australian Workers’ Union (2000) 102 FCR 97 the Full Federal Court (Black CJ, Beaumont and Ryan JJ) at [35] said as follows:

   ‘It has to be borne in mind, in construing s 298K, that it proscribes conduct by “an employer” directed to “an employee” or “other person” (emphasis added). That use of the singular suggests that the alleged injury or alteration of position has to be examined in the light of the circumstances of each individual employee. (It is not the point that in the interpretation of statutes, the singular ordinarily includes the plural; here we are concerned with the indications of legislative intention to be discerned from the actual language used.) It is also significant that the conduct struck at by each paragraph of s 298K is expressed by an active verb: “dismiss”, “injure”, “alter the position”, “refuse to employ”, and “discriminate”. That implies that the proscription is essentially against an intentional act of the employer directed to an individual employee or prospective employee.’

6. I should interpolate to point out that in relation to the subsequent single judge decision in BHP Iron Ore following upon the Full Court’s remitter of the proceedings to the trial judge, Kenny J of this Court decided in Australian Workers Union v BHP Iron Ore Pty Ltd (2001) 106 FCR 482, that ‘[b]efore s 298K(1) can apply, it must be possible to say of an employee that he or she is, individually speaking, in a worse situation after the employer’s acts than before them; that the deterioration had been caused by those acts; and that the acts were intentional in the sense that the employer intended the deterioration to occur’ (see [54]). Upon that footing, the case foreshadowed by ANSTO was that Mr Lever ‘… has not established, or even alleged, that he ceased to be entitled to the benefits of an industrial instrument by reason of conduct of [ANSTO]’, since ‘… there can have been no conduct of [ANSTO] that was for the reason prohibited by s 298L(1)(h)’.

7. Further as to the operation of s 298K(1), attention was drawn by ANSTO to Community and Public Sector Union v Telstra Corporation Ltd (2000) 99 IR 238, where at [19] Finkelstein J observed as follows:

   ‘In the context of this legislation, there will not be a threat of proscribed conduct unless the employer communicates to his employee that proscribed action will be taken. One meaning of the word “threaten” is to menace or warn beforehand of an intention to inflict harm. That is the meaning that should be given to the word in s 298K.’

   That observation was adopted in NationalUnion of Workers v Qenos Pty Ltd (2001) 108 FCR 90 at [119] (Weinberg J) and in Australian and International Pilots Association v Qantas Airways Ltd 160 IR 1 at [20] (Tracey J).

8. Subsequently at [26] in Qantas, Tracey J added the following observation in relation to the operation of s 298K(1), to which ANSTO drew attention:

   ‘Counsel have not directed my attention to, nor have I found, any authority which supports the proposition that a mere announcement of an intention to act in a particular way at some time in the future can constitute conduct of the kind to which s 298K(1) is directed.  Each of the cases to which my attention was directed, in which a contravention of the section was found, involved the making of a decision by an employer which was immediately operative even though the consequences of the decision may not have had an immediate effect on particular employees ….  The approach to the construction of s 298K which is evident in these cases is explicable in part by reference to the language of the section.  The various paragraphs in s 298K(1) which identify proscribed conduct speak in the active voice (“dismiss”, “injure”, “alter the position”, etc).  The employer must do something to prejudice an employee not merely foreshadow some future action which might or might not prove to be prejudicial.’

9. More recently in Maritime Union of Australia v CSL Australia Pty Ltd (2002) 113 IR 326 Branson J had occasion to consider the operation of s 298V in the context of an alleged breach of s 298K(1) of the Act, in the course of which consideration was given to the operation or otherwise of the s 298V presumption. Her Honour referred at [57] to the decision of the High Court in General Motors-Holden Pty Ltd v Bowling (1976) 51 ALJR 235, where in the judgment of Mason J (as he then was) at 241 (with whose reasons Stephen and Jacobs JJ agreed), the following appeared in relation to the precursor to s 298V, namely s 5(4) of the Conciliation and Arbitration Act 1904 (Cth):

   ‘Section 5(4) imposed the onus on the appellant of establishing affirmatively that it was not actuated by the reason alleged in the charge.  The consequence was that the respondent, in order to succeed, was not bound to adduce evidence that the appellant was actuated by that reason, a matter peculiarly within the knowledge of the appellant.  The respondent was entitled to succeed if the evidence was consistent with the hypothesis that the appellant was so actuated and that hypothesis was not displaced by the appellant.  To hold that, despite the sub-section, there is some requirement that the prosecutor brings evidence of this fact is to make an implication which in my view is unwarranted and which is at variance with the plain purpose of the provision in throwing on to the defendant the onus of proving that which lies peculiarly within his own knowledge.’

   Moreover in his dissenting reasons, Barwick CJ observed at 238 as follows:

   ‘In my opinion, before resort can be had to this onus provision, there must be before the Court evidence which reasonably warrants the conclusion that the circumstance that the employee had been placed in the appropriate office of his union was possibly a reason for his dismissal.  If, on the evidence, there is no basis for concluding that that circumstance might be or have been a reason for the dismissal, there is no room for requiring the employer to negative the proposition that that circumstance was such a reason.’

   On the footing of the approach taken in General Motors and duly adopted by Branson J in Maritime Union at [57], ANSTO submitted that ‘[i]t is not sufficient for [Mr Lever] to arbitrarily allege any one of the 15 prohibited reasons listed in s 298L(1)’ and that ‘[t]he evidence must be consistent with the hypothesis that [ANSTO] was motivated by the reason alleged by [Mr Lever]’, and further that ‘there is no suggestion in the evidence or in the submissions of [Mr Lever] that his entitlement to the benefit of an industrial instrument was an issue, or even a topic of discussion at or about the time of the alleged conduct’. It was pointed out that ‘[m]ost employees of [ANSTO] were entitled to the benefit of an industrial instrument’, and further that ‘[Mr Lever’s] hypothesis that this reason actuated [ANSTO] is arbitrary and fanciful’.

10. Apart from the fact that Mr Lever had not established or even alleged that he ceased to be entitled to the benefits of an industrial instrument by reason of ANSTO’s conduct, ANSTO emphasised that there could be no conduct on its part that was undertaken for any reason prohibited by s 298L(1)(h). In any event, the evidence of Dr Doherty was that his conduct was motivated by a belief that he had correctly classified Mr Lever and that Mr Lever was not yet qualified for promotion to SPO1. Dr Doherty denied that he was motivated by the reason thus alleged by Mr Lever and asserted moreover that even if there had been conduct of the kind described in s 298K(1), his testimony would preclude any presumption arising under s 298V to the effect that the reason therefore was that as alleged by Mr Lever.

11. As to the circumstantial operation of the components of pars (j) and (m) of s 298L(1), Branson J observed in Construction, Forestry, Mining and Energy Union v Coal and Allied Operations Pty Ltd (1999) 140 IR 131, at [161]-[162] as follows, concerning what ANSTO contended Mr Lever was required to establish in relation to the factual components thereof:

    ‘In respect of the allegation that the respondent injured Mr Burford in his employment, or altered his position as an employee to his prejudice, for the reason, or for reasons that included the reason, that Mr Burford had participated in proceedings under an industrial law, I have concluded in [75] above, that Mr Burford did not relevantly participate in proceedings under an industrial law within the meaning of s 298L(1)(j). Section 298V of the Act does not, in my view, allow the applicant to circumvent that finding. Rather it is to be construed as an aid to proof of the intent or reason of the respondent which motivated, or formed part of the motivation for, the respondent's conduct. It may fairly be presumed that the section is intended to alleviate the difficulties of proof by one party of the state of mind or motivation of another.

    For analogous reasons, I do not consider, so far as the circumstances proscribed in s 298L(1)(m) are concerned, that s 298V relieves the applicant from the obligation of establishing as a fact that the relevant employee absented himself from work without leave for the purpose of carrying out duties as an officer of an industrial association (s 298L(1)(m)(i)) and that the employee applied for leave before absenting himself and that leave was unreasonably refused or withheld (s 298L(1)(m)(ii)). The impact of s 298V, in my view, is simply to alleviate the evidentiary difficulty facing the applicant of providing proof of the intent or reason which motivated, or formed part of the motivation for, the respondent's conduct following the absence of the employee from work.’

12. Mr Lever referred additionally to the recent decision of this Court in McIlwain v Ramsey Food Packaging Pty Ltd (2006) 154 IR 111, where the issue arose as to whether the refusal to employ certain persons, or more precisely to re-employ those persons, had been made inferentially for the prohibited reason of their membership of a trade union. In the course of his Honour’s comprehensive reasons for judgment approximating 110 pages, Greenwood J found that the four persons the subject of the Employment Advocate’s application had been refused re-employment inferentially for the prohibited reasons the subject specifically of pars (a), (h), (j), (k) and (l) of s 298L(1) of the Act. Counsel urged upon the Court a consideration of what he described as ‘the very detailed and careful recent reasoning’ of Greenwood J in McIlwain which followed upon his Honour’s acknowledgement that the onus of establishing the various causes of action propounded in that case was placed on the applicant according to the balance of probabilities, but that s 298V stipulated for the discharge of that onus by presumption, once conduct was relevantly established ‘unless the person or industrial association proves otherwise’ (to cite the concluding words of the section).  The following dictum of his Honour appears at 204:

    ‘The dismissal conduct is admitted. The refusal to employ conduct is established. Having adduced evidence probative of the conduct, the assertion of the prohibited reasons gives rise to the operation of s 298V, thus enlivening the presumption which discharges the onus cast on the applicant to establish the causes of action on the balance of probabilities and casts an onus on the respondents to prove affirmatively that the prohibited reasons alleged were not a reason for the conduct.’ (Emphasis in original.)

13. His Honour pointed out that there must be demonstrated ‘differential treatment’ by the employer of an individual employee or other person of the identified class, as against other employees, and the question arising in principle was whether the conduct, from the standpoint of the individual concerned, was carried out for the prohibited purpose.  Historical factors were found to give rise in the circumstances of that case to inferences duly open to be drawn by the Court to the effect that the prohibited reasons constituted a basis for the conduct of the refusal to employ, emphasis being placed upon the timing of evolving events as demonstrative of a requisite interconnection.  There had occurred in that regard a succession of offers of re-employment made to certain individuals, after the dismissal of the group of employees seeking re-engagement, such as to evidence a constructive refusal of the employer to employ the members of that group. 

    Mr Lever’s submissions on liability

    (i)       Introduction generally

1. As I have foreshadowed, the issues presently arising for judgment are confined to liability, the further case of Mr Lever as to compensation and penalty having been stood over pending the outcome of the case on liability.  Mr Lever emphasised that his complaint related to the absence of his reclassification to a higher employment grade within the ranks of ANSTO, and not merely to incremental increases in salary within a grade, and that it was within that legal framework of what his counsel described, citing Patrick Stevedores as quoted above, as the ‘broad additional category that covers not only legal injury but any adverse affection of, or deterioration in, the advantages enjoyed by the employee before the conduct in question’ that his present proceeding was said to have been brought.  Emphasis was further laid by Mr Lever upon the statutory expressions of ‘injure’ and ‘prejudice’ appearing in pars (b) and (c) of s 298K(1), and to enunciation of principles appearing in the authorities to which I have already referred, and in relation to which the Courts were said to have given ‘a broad and wide ranging operation’, and in particular by the High Court in Patrick Stevedores. 

   (ii)      The credibility of the various witnesses

2. It was next submitted by Mr Lever that the veracity of his testimony was ‘unshaken’, his recollection of events was not materially challenged by contemporaneous documentation, and moreover that the testimonies of his various witnesses were ‘unchallenged by cross-examination going to the substance of their factual assertions’.  On the other hand the testimony of Dr Smith, the Executive Director of ANSTO, was said by Mr Lever to have been ‘… ultimately unhelpful [as to what was] undertaken by [ANSTO] during his tenure’, and ‘cavalier’, and ‘of no or minimal assistance to the Court’.  The affidavit testimony of the industrial relations advisor to ANSTO, Mr Davies, was described by Mr Lever as largely ‘formulaic’, and that to the extent of ‘any inconsistency’ with Mr Lever’s testimony, the latter should be ‘with little hesitation … preferred’. 

3. Of more significance to the resolution of the issues arising was said by Mr Lever to be the evidence of Dr Doherty, described by counsel for Mr Lever as ‘the de facto supervisor and director responsible for [Mr Lever’s] active employment with [ANSTO]’.  It was submitted by Mr Lever that the following five emails reflected adversely upon ANSTO’s case concerning Dr Doherty’s motivation: 

   (i)the first email sent on 12 November 2002, in reference to Mr Lever’s work as a union delegate on the enterprise bargaining negotiations team, which contained the assertion that ‘… [t]he history of [Enterprise Bargaining] processes almost everywhere is that they usually contain a confrontational element, which does not endear the union reps to management, so taking part has the potential to be career limiting, without any conscious design on the part of management to make it so’;

   (ii)the second email sent on 12 December 2002, by way of ‘begging’ Mr Lever ‘for [his] own sake’ not to pursue his industrial entitlement to a peer review;

   (iii)the third email sent on 5 May 2003, to the effect that Mr Lever needed to get his classification dispute with ANSTO ‘out of the way quickly for [his] sake’;

   (iv)the fourth email sent on 17 July 2003, stating that ‘Ron, I heard that you had decided not to proceed to the final IRC process.  Is this true?  I hope so.  I would not like to see you destroy your career prospects here, unless you’re planning to leave anyway.  You still have goodwill amongst your ANSTO clients’;

   (v)the fifth email sent on 18 July 2003 wherein Dr Doherty asserted that ‘I am sorry to hear it [that Mr Lever was still trying to resolve his classification dispute] because I think it’s inevitable that it will affect your career here, but maybe you are not intending to stay in any case.  I’ll let it rest’. 

4. It was further contended by Mr Lever that ‘Dr Doherty would have the Court believe that none of these communications evidenced any threat or negative action taken by [ANSTO] or [Dr Doherty] as against [Mr Lever] in respect of either [Mr Lever’s] union activities or his prosecution of his industrial entitlements’, but that ‘… on a bare reading of the emails, in the light of the history of [Mr Lever’s] dispute with [ANSTO], the Court would simply not accept this evidence of Dr Doherty’.  That contention and its ultimate significance falls to be weighed of course in the context of the totality of the evidence in the wide-ranging contextual circumstances of this case, which I will proceed of course to further record and review in detail. 

5. Mr Lever addressed thereafter in sequence the testimony of Mr Cullen, ANSTO’s General Manager, Corporate Services, which he described as having ‘essentially dealt with the dispute between [Mr Lever] and ANSTO as to [Mr Lever’s] request for overtime’, Mr Lever’s ‘industrial representation of [Person X]’, and ‘the breach of duty process brought against [him]’, and further [ANSTO’s] ‘accessing of [Mr Lever’s] emails’ (Person X’s actual name has been suppressed by order of the Court made on 29 November 2006 pursuant to s 50 of the Federal Court of Australia Act 1976 (Cth)). It was submitted by Mr Lever that ‘… to the extent [his] evidence and that of Mr Cullen are in conflict, the Court would accept the evidence of [Mr Lever]’, for the reason that ‘[t]o the extent that Mr Cullen corroborated the evidence of [Mr Lever] as to his substantive role in terms of the Career Advancement Process, Mr Cullen’s evidence would be accepted as corroborating [Mr Lever’s] substantive position as being at least Band 6’.

6. Mr Lever submitted, moreover, that testimony of Mr Crakanthorp, the Operations Manager (Desktop and Server) of ANSTO, ‘in large part’ corroborated his own testimony, and that to the extent Mr Crakanthorp’s evidence was nevertheless contradictory to that of Mr Lever.  It was contended that Mr Lever’s version should be ‘comfortably’ accepted by the Court.  Mr Lever additionally submitted that to the further extent that Mr Crakanthorp’s testimony adduced by ANSTO ‘… sought to limit the role and scope of [his] clearly quite detailed technical knowledge in rewriting the directory structures for the review of ANSTO’s IT infrastructure’, the same should be rejected, since ‘[i]n that regard Mr Crakanthorp did not present as a credible witness’.  No instance of any such lack of credibility was however seemingly provided in that context. 

7. As to the testimonies respectively of Mr O’Shea, Dr Hall and Ms Risby, given also on behalf of ANSTO, and said to have been to the effect that his workers compensation case was ‘unusual’, Mr Lever submitted that ‘they were nevertheless unable to remember significant elements of [ANSTO’s] handling of his case’.  Mr Lever further submitted that ‘their [individual] evidence in part contradicted each others as to the responsibilities and conduct of each other in dealing with [Mr Lever’s] workers compensation claim… [and further that] to the extent these witnesses’ version of the relevant events differs from that of [Mr Lever], [Mr Lever’s] evidence, supported as it is by the contemporaneous documentation, would be preferred’. 

8. I will take into account of course the foregoing submissions as to conflicting testimonies to the extent necessary to resolve critical or relevant aspects of the evidence.  It is not a simple task of course for the Court to address and pass judgment upon the credibility of five witnesses individually and to an extent relevantly in favour of the testimony of a single interested party to litigation, to the extent of any inconsistency, as the foregoing submissions of Mr Lever seemingly require.  It is appropriate to detail the fifteen series of breaches framed by way of presentation of Mr Lever’s case to the Court.  In so doing, I will cite below wherever appropriate the precise language or terms of the comprehensive written submissions of counsel for Mr Lever. 

   The series of breaches and injury pleaded by Mr Lever to have been sustained

   (i)       The first series of breaches

9. As foreshadowed in these reasons, the primary statutory focus of the proceedings was upon s 298K of the pre-reform Act, headed ‘Dismissal etc. of members of industrial associations etc.’, and paragraphs (b) and (c) of subsection (1) thereof in particular. The allegations principally advanced by Mr Lever, and in outline, as I have earlier foreshadowed, were that ‘… ANSTO injured [Mr Lever] in his employment or altered the position of [Mr Lever] to his prejudice in the circumstances where’:

   ‘(a)ANSTO breached section 298K(1)(b) and (c) by inducing [Mr Lever] to sign off on the Objective Setting and Assessment Form for the period 1999-2000 in February 2001, which was to the injury or prejudice of [Mr Lever] by causing [Mr Lever] to not seek a review of Dr Doherty’s decision to promote him two increments only;

   (b)ANSTO breached section 298K(1)(b) and (c) by failing to inform [Mr Lever] of his rights to a review of Dr Doherty’s decision, which was to the injury or prejudice of [Mr Lever] by causing [Mr Lever] not to seek a review of Dr Doherty’s decision to promote him two increments only;

   (c)ANSTO breached section 298K(1)(b) and (c) by reason of Dr Doherty representing to [Mr Lever] that it was not possible for an ANSTO employee to be skipped an entire grade in a promotion, which was an untrue statement and which induced [Mr Lever] to not seek a review of Dr Doherty’s decision to promote him two increments only.’

10. Thereafter it was pleaded by Mr Lever that ANSTO’s conduct the subject of such statutory breaches ‘… was carried out for prohibited reasons as proscribed by section 298L of the pre-reform WR Act’, in that by reference to s 298L(1)(h), ‘… Mr Lever was entitled to the benefit of an industrial instrument, that is, the ANSTO Enterprise Agreement 2000’, and further that ‘[t]he particular benefit or benefits under the ANSTO Enterprise Agreement 2000 included’:

    ‘(i)      the benefit or rights flowing from Clause 44.1.1;

    (ii)the benefit or right to undergo an annual assessment under Clause 44 in accordance with the process – the document known as “HRES P4.1”, including Clauses 6.3.2, 6.4.4 and 6.4.6 of HRES P4.1.’

    Those breaches, described in Mr Lever’s points of claim as the first series of breaches, were said to be ‘continuing’. 

11. It was further pleaded by Mr Lever that as a consequence of what had been particularised by Mr Lever’s points of claim, he suffered and had continued to suffer injury loss and damage, particularised as follows:

    ‘(i)[Mr Lever] lost the opportunity to seek and obtain a successful review in 2001 of Dr Doherty’s decision to promote the Applicant by two increments as recorded in the Objective Setting and Assessment Form for the period 1/1/1999-2000, thereby causing the Applicant to suffer a loss of career advancement and loss of potential earnings from 1 July 2000 (the award of 2 increments had retrospective effect from 1 July 2000 onwards);

    (ii)the Applicant lost the opportunity to be classified to his proper classification for his new role as benchmarked by the Work Level Descriptors with effect from the time the Applicant took on his new role around October/November 1999, or to be promoted to SPO 1 or above on some later date which would have meant that any subsequent promotions would have been made from the level of SPO 1 or above, thereby exacerbating the Applicant’s loss of career advancement and loss of potential earnings.’

12. Counsel for Mr Lever explained that such series of alleged breaches related to the initial duration of Mr Lever’s employment with ANSTO, being the period from his engagement in late April 1999 to February 2001, and were constituted by the failure of Dr Doherty, as his then direct supervisor and assessor, ‘to inform [Mr Lever] of his rights to review a decision made by Dr Doherty’, being the decision ‘… to promote [Mr Lever] by only two increments within his existing substantive classification as a Professional Officer grade 2 as opposed to what [Mr Lever] had sought, which was to be classified in his new role according to the work level descriptors to no less than SPO 1’, and to do so notwithstanding what was described as the foregoing ‘relevant uncontested history’.  It was said further in that regard that up until January 2003, the ‘annual review of [Mr Lever’s] performance and career advancement was undertaken pursuant to the… CAS [as earlier abbreviated in these reasons] and the Objective Setting and Review Process that underlay that’, to be located within HRES P 4.1.  Mr Lever purportedly adopted in that context the ‘detailed history of the career advancement system to June 2002’, as summarised in pars 14 to 23 of Mr Lever’s first or principal affidavit of 1 June 2006 comprising 48 pages.  The HRES P 4.1 documentation was described as being in the nature of an industrial instrument, by reason of the fact that it was ‘developed pursuant to clause 44.1.1 of the ANSTO Enterprise Agreement 2000’. 

13. It was pointed out by Mr Lever that such CAS process required ‘annual assessments of each employee’s past achievements and recommendations and goals’, to be ‘set to the employee’s upcoming year of work with [ANSTO]’.  It was said also to be ‘not contested by [ANSTO’s] witnesses that in the absence of the formal CAS documentation setting [Mr Lever’s] forthcoming objectives to a higher level than that on which he was currently working, that [ANSTO] would not be in a position to advance [Mr Lever] to a higher classification’. 

14. It was next pointed out by Mr Lever moreover that relevantly for present purposes, clause 6.3.3 of HRES P 4.1, headed ‘Difficulties Establishing Agreed Objectives’, provided in clause (a) thereof that ‘the assessor is ultimately responsible for the timely completion of all stages of the CAS documentation’; so much was said to include ‘assessments in the years passed and goals for the forthcoming year’.  That clause 6.3.3 was described as consistent with the following clause 6.4.3 headed ‘Difficulties in Identifying Achievements’, which indicated in sub-clause (b) thereof that ‘[s]hould the staff member refuse to provide their achievements the direct supervisor(s), following discussions with the assessor, shall complete a list of achievements and meet with the staff member to discuss their conclusions’.  It was further said to have provided ‘… for the assessor, after due process, making a summary of recommendation, based on [the] comments [of the supervisor(s)] in circumstances where the staff member to be assessed does not agree with or co-operate with the process’.

15. It was next said by Mr Lever to be not in dispute that he was ‘not explicitly informed of his rights to review Dr Doherty’s decision, nor was it in dispute that Dr Doherty advanced [Mr Lever] by two increments within a grade, contrary to [Mr Lever’s] understanding and expectation’.  What appeared to have been in dispute, so Mr Lever submitted, was that ‘Dr Doherty represented to [Mr Lever] that it was not possible to skip an entire grade’, and the Court was referred to annexure RL63 to Mr Lever’s 17 November 2006 affidavit, which was made subsequently to two earlier affidavits which he made in the proceedings.  To the extent there was any dispute between the evidence of Mr Lever and Dr Doherty, it was submitted by Mr Lever that the Court would accept Mr Lever’s evidence as contained in paragraph 33 of his affidavit of 1 June 2006 to the effect that on or about February 2001, a conversation occurred between him and Dr Doherty to the following effect:

    Mr Lever:‘I haven’t signed off on the assessment form because I believe that the work I have been doing is at least Senior Professional Officer Level 1.’

    Dr Doherty:     ‘It’s not possible for you to skip Professional Officer 2.  The system does not allow for this.  Don’t worry though, you will continue to be promoted.’

    It was asserted by counsel for Mr Lever that none of the relevant industrial instruments in place at the material times supported the assertion of Dr Doherty that it was ‘not possible to skip an entire grade’.  Mr Lever asserted that such representation was made by Dr Doherty in order to prevent Mr Lever from accessing his entitlement to benefits under clause 44.1.1 of the ANSTO Enterprise Agreement 2000 and the ancillary documents referred to generally by the description ‘the objective setting and review process’. 

16. The occurrence of prejudice adversely to Mr Lever was then said by him to be confirmed by Mr Davies, employed by ANSTO as an ‘Industrial Relations Advisor’, in a conversation between them held on 1 September 2002, which was recorded within par 48 of Mr Lever’s affidavit sworn 1 June 2006, as follows:

    Mr Davies:‘You should have challenged Greg’s decision not to reclassify you back in 2001’.

    Mr Lever:‘Greg indicated he could allow me to skip an entire classification’.

    Mr Davies:‘There’s always been provision for staff to be reclassified.  There’s been a number of staff who have skipped an entire grade.’

    There was said by Mr Lever to be a factual conflict between Mr Lever and Mr Davies as to whether or not that conversation occurred as so stated by Mr Lever, but once again, it was submitted on behalf of Mr Lever that his testimony should be preferred.  I was referred by Mr Lever in that regard to ‘[o]ne glaring example of the absence of credit of Mr Davies’, in circumstances where he referred to a document having been provided to him by a member of ANSTO’s ‘HR team’ (being Ms Ann Jenkins) at a time when, on the uncontradicted evidence of Mr Lever, she ‘was clearly not employed by [ANSTO]’.  I have encountered considerable difficulty with the purported basis and scope of viability relevantly of that submission. 

17. In conclusion to that stage of the testimony of Mr Lever, his counsel contended that ‘in the absence of credible evidence to the contrary as to the motivations of Dr Doherty’, the first series of breaches had been established.

    The second series of breaches

18. The second series of breaches propounded by Mr Lever were formulated in pars 26 to 29 of Mr Lever’s points of claim as follows:

    ‘26.On 21 August 2002, the Applicant met with Dr Doherty and Mr Crakanthorp to discuss his CAS Assessments for 2000-2001 and 2001-2002. During the meeting, Dr Doherty made certain representations to the Applicant which were untrue and which constituted conduct in breach of section 298K(1)(b), (c) and (e) of the pre-reform WR Act.

    Particulars of conduct

    (a)Dr Doherty represented to the Applicant that ANSTO/ Dr Doherty was required to keep “some relativity” between ANSTO employees in relation to their advancement, thereby implying that ANSTO/Dr Doherty was entitled to not advance the Applicant for the sake of relativity with other employees, in circumstances where the Applicant ought to have been advanced on merit and in accordance with the classification processes;

    (b)That it would take the Applicant twelve years to be promoted to SPO 1;

    (c)That Professor Garnett would never agree to the Applicant being promoted to SPO 1; and

    (d)That ANSTO/Dr Doherty was not able to retrospectively address the issue of Mr Lever’s classification.

    27.The Applicant alleges that ANSTO injured the Applicant in his employment or altered the position of the Applicant to his prejudice in the circumstances particularised at paragraph 26 above in breach of s 298K(1)(b), (c) and (e) of the pre-reform WR Act. It is alleged that the breaches are continuing.

    Particulars of the Breaches

    (a)ANSTO breached section 298K(1)(b) and (c) by seeking to discourage the Applicant from pursuing his classification dispute with ANSTO, which was to his detriment, by making false representations to the Applicant so as to induce or discourage the Applicant from seeking a review of Dr Doherty’s decision in relation to the assessment periods 2000-2001 and 2001-2002, including by the pursuance of any proceeding under an industrial law;

    (b)ANSTO breached section 298K(1)(b) and/or (c) by threatening to injure the Applicant in his employment or alter the position of the Applicant to his prejudice with the intent of dissuading or preventing the Applicant from seeking a review of Dr Doherty’s decision, including by participating or proposing to participate in any proceeding under an industrial law; and

    (c)ANSTO breached section 298K(1)(e) by discriminating against the Applicant by failing to afford the Applicant the same terms and conditions on which the Applicant was offered continuing employment compared to other ANSTO employees by refusing to address the Applicant’s classification in accordance with the classification processes applied to other ANSTO employees.

    28.The Applicant alleges that ANSTO’s conduct in breach of section 298K(1)(b), (c) and (e) as alleged at paragraphs 25 to 27 above was carried out for prohibited reasons as proscribed by section 298L of the pre-reform WR Act.

    Particulars of Prohibited Reasons

    Section 298L(1)(h); namely, that Mr Lever was entitled to the benefit of an industrial instrument, that is, the ANSTO Enterprise Agreement 2000.  The particular benefit or benefits under the ANSTO Enterprise Agreement 2000 included:

    (i)The benefit or rights flowing from Clause 44.1.1;

    (ii)The benefit or right to undergo an annual assessment under Clause 44 in accordance with the process-document known as “HRES P4.1”, including Clauses 6.3.2, 6.4.4 and 6.4.6 of HRES P4.1.

    29.As a consequence of the matters particularised at paragraphs 25 to 28 above, the Applicant has suffered and continues to suffer injury, loss and damage.

    Particulars of injury, loss and damage

    The Applicant suffered a loss of opportunity to obtain a successful review of his classification as at 21 August 2002 and to thereby obtain a promotion and to thereby increase his earnings.’  (Emphasis in original.)

1. Those alleged breaches were said by Mr Lever to relate to the further representations made by Dr Doherty to Mr Lever as particularised above.  Mr Lever’s history of the negotiations leading up to the 21 August 2002 meeting has already been mentioned.  At that time Professor Garnett was the Executive Director of ANSTO.  Those further representations complained of were said to be detailed in conversational form in par 46 of Mr Lever’s affidavit of 1 June 2006.  Again it was contended that Mr Lever’s account of the history and recollection of those events should be accepted in preference to the testimony of Dr Doherty, and moreover that none of the relevant industrial instruments in place at the material time supported the assertions of Dr Doherty as to his reasons for not advancing Mr Lever to Senior Professional Office 1.  It was Mr Lever’s further case that those representations were made by Dr Doherty to prevent Mr Lever ‘from accessing his benefits under clause 44.1.1 of the ANSTO Enterprise Agreement 2000 and the ancillary documents referred to generally as Career Advancement System’.

2. It was further submitted by Mr Lever that the representations of Dr Doherty had the effect of injuring Mr Lever’s employment, in that he was not able to obtain the benefits of that ‘Career Advancement System’, being benefits said to have been in place ‘for the other employees of [ANSTO]’. 

3. It was therefore submitted that in the absence of credible evidence to the contrary as to the motivations of Dr Doherty, the second series of breaches had been made out by Mr Lever. 

   The third series of breaches

4. The third series of breaches asserted by Mr Lever said to be attributable to ANSTO were set out in pars 33 to 35 of Mr Lever’s points of claim which appeared, as follows:

   ‘33.The Applicant alleges that ANSTO injured the Applicant in his employment or altered the position of the Applicant to his prejudice in the circumstances particularised at paragraphs 31 and 32 above in breach of section 298K(1)(b), (c) and (e) of the pre-reform WR Act. It is alleged that the breaches are continuing.

   Particulars of Breaches

   (a)ANSTO breached Section 298K(1)(b) and (c) by blocking or frustrating the Applicant’s attempts to resolve his classification dispute with ANSTO, which was to the injury or prejudice of the Applicant;

   (b)ANSTO breached Section 298K(1)(b) and (c) by threatening to injure the Applicant in his employment or alter the position of the Applicant to his prejudice if the Applicant continued to pursue the classification dispute;

   (c)ANSTO breached Section 298K(1)(b) and (c) by reason of Dr Doherty representing to the Applicant that Professor Garnett would not agree to promote the Applicant into another band, which was done with the intent of persuading or preventing the Applicant from pursuing a resolution of his classification dispute, including by participating or proposing to participate in any proceeding under an industrial law;

   (d)ANSTO breached Section 298K(1)(e) by discriminating against the Applicant by failing to afford the Applicant the same terms and conditions on which the Applicant was offered continuing employment compared to other ANSTO employees by refusing to address the Applicant’s classification in accordance with the classification processes applied to other ANSTO employees.

   34.The Applicant alleges that ANSTO’s conduct in breach of Section 298K(1)(b), (c) and (e) as alleged at paragraphs 31 to 33 above was carried out for prohibited reasons as proscribed by Section 298L of the pre-reform WR Act.

   Particulars of Prohibited Reasons

   The prohibited reasons alleged by the Applicant to have motivated the Respondent’s conduct were:

   (a)Section 298L(1)(h); since 2 December 2000, ANSTO’s conduct was motivated by the fact that the Applicant was entitled to the benefit of an industrial instrument, that is, the ANSTO Enterprise Agreement 2000.  The particular benefit or benefits under the ANSTO Enterprise Agreement 2000 were:

   (i)The benefit or rights flowing from Clause 44.1.1;

   (ii)The benefit or right to undergo an annual assessment under Clause 44 in accordance with the process-document known as “HRES P4.1”, including Clauses 6.3.2, 6.4.4 and 6.4.6 of HRES P4.1;

   (b)Section 298L(1)(i) and/or (j); since 23 September 2002, ANSTO’s conduct was motivated by the fact that the Applicant had sought a mediation session, a Peer Revenue and/or a Reference Panel to assist in the resolution of his classification dispute;

   (c)Section 298L(1)(a); since July or August 2002, ANSTO’s conduct was motivated by the fact that the Applicant was, at the relevant times, a member of an industrial association, that is, the CPSU;

   (d)[this subparagraph merely duplicated verbatim (b) above.] 

   35.As a consequence of the matters particularised at paragraphs 30 to 33 above, the Applicant has suffered and continues to suffer injury, loss and damage.

   Particulars of injury, loss and damage

   The Applicant suffered a loss of opportunity to obtain a successful review of his classification in late 2002 and to thereby obtain a promotion and to thereby increase his earnings.’

   (The submissions did not in fact reproduce ‘paragraphs 30 to 33’ in the context of the so-called third series of breaches, but only the foregoing paragraphs 33 to 35.)

5. Those breaches were said by Mr Lever to relate to actions taken by ANSTO, and in particular by Dr Doherty on its behalf, in the period of time between September 2002 and December 2002, being actions directed to dissuading Mr Lever from ‘progressing his classification dispute’.  In that period of time, Mr Lever was said to have taken a number of steps ‘to resolve his classification dispute, including a mediation session on 20 November 2002’.  I have some difficulty in appreciating why the pursuit of a mediation process would not have constituted ‘progressing his classification dispute’, for what that may ultimately matter. 

6. Commencing from 1 July 2002, ANSTO was said by Mr Lever to have commenced the performance of a role analysis on each and every employee at ANSTO to reclassify him or her from the previous Senior Professional Officer and Professional Officer grades to new grades classified in Bands 1 to 10.  That new classification system was further said to have been ‘agreed between the unions and ANSTO to take effect from 1 July 2002’, being an agreement said to have been reached during the negotiations for the ANSTO Enterprise Agreement 2002.  Mr Lever asserted that whilst the new classifications commenced as a matter of fact from 1 July 2002, that 2002 Agreement was not ultimately certified and did not commence until January 2003, though he acknowledged that ‘[l]ittle turns on this in the present case’.

7. Mr Lever next explained that the ANSTO role characteristics for the relevant positions from Bands 1 to 10 were contained in Exhibit D in the proceedings.  It was therefore said that on and from 1 July 2002, Mr Lever’s classification dispute with ANSTO centred around the role characterises set out in that document.  At all material times thereafter, ANSTO was further said to have ‘formally characterised [Mr Lever’s] role as band 5’, whilst Mr Lever and a number of ANSTO’s employees not seemingly identified, or at least not in his written submissions, were said to have ‘asserted that his role was appropriately classified [as] at least band 6’.  In that month of July 2002, Ms Linda Houseman of ANSTO’s Human Resources Department was said to have conducted a role analysis of Mr Lever’s then employment position at ANSTO, the outcome whereof being set out in par 41 of Mr Lever’s affidavit sworn on 1 June 2006, and in particular annexure RL 7 thereto.  It was asserted by Mr Lever to describe his role, or at least his band 6 role, under the new classification system.

8. I have already made reference to the mediation session held on 20 November 2002.  Mr Lever and Dr Doherty were in attendance at that mediation session.  There were apparently two other parties at the session, namely Ms Lynne Blackbourn and Ms Linda Houseman, who were both associated with ANSTO’s Human Resources Department.  Neither testified for ANSTO in the proceedings, and it was submitted by Mr Lever that given those witnesses were ‘clearly [ANSTO’s] witnesses’, Mr Lever was able to rely on inferences open to be drawn against ANSTO, consistently with what was said by Kitto J in Jones v Dunkel (1959) 101 CLR 298 at 308 as to the evidentiary principle which applies where there is a failure to call a witness, as follows:

   ‘… any inference favourable to the plaintiff for which there was ground in the evidence might be more confidently drawn when a person presumably able to put the true complexion on the facts relied on as the ground for the inference has not been called as a witness by the defendant and the evidence provides no sufficient explanation of his absence.’

   No authority was cited in support of the proposition that attendees at a mediation meeting are compellable or at least qualifiable witnesses as to what may have been asserted or acknowledged at that meeting.  Mr Lever contended in any event that his ‘detailed evidence as to Dr Doherty accepting [Mr Lever’s] analysis of [his] then role, being consistent with at least band 6, as opposed to band 5’ should be accepted, and I was referred in that regard generally to pars 29 to 33 of Mr Lever’s affidavit.

9. On any view of the evidence, so Mr Lever further contended, his then role involved a significant degree of ‘specialisation’ as defined in the ‘Role Characteristics document’ that formed Exhibit D in the proceedings.  I was referred in that regard to ‘the enabling quadrant in the role analysis’ appearing in annexure ‘RL 15’ to Mr Lever’s affidavit sworn on 1 June 2006.  The so-called ‘lowest graded role’ that was referred to in the ‘enabling Quadrant’ section of that Exhibit D that required specialisation was said by Mr Lever to be ‘at least Band 6’.  Mr Lever contended that such analysis, and his evidence as to the outcome of the mediation session held on 20 November 2002, was ‘entirely consistent with any rational analysis of Exhibit A (being a colour photocopy of Exhibit RL 11)’.  That Exhibit A was described by him as ‘a combined role analysis document that contains the analysis of Mr Crakanthorp, [Mr Lever] and Dr Doherty’, and in that context ‘[t]he fact that it was an accurate portrayal of those individuals… was not seriously challenged in [Mr Lever’s] cross-examination’.  Mr Lever yet further contended that ‘[i]f the document being Exhibit A is accepted on face value, together with the evidence of [Mr Lever], a simple reading of the Role Characteristics document together with the inferences available against [ANSTO] referred to above … [demanded] the only viable factual finding open to the Court [to be] that, at least as at 20 November 2002, [Mr Lever’s] substantive role was the equivalent of at least band 6 and not the band 5 at which [ANSTO] was formally characterising him’. 

10. The Court was informed by Mr Lever that the mediation session did not resolve Mr Lever’s substantive classification dispute, and that as a result he eventually sent to Dr Doherty an email advising him of his intention to progress the matter by way of a so-called ‘peer review process’.  Dr Doherty’s response to that stated intention was recorded in an email bearing date 12 December 2002 to Mr Lever stating ‘Ron, for your own sake, I beg you one last time not to pursue this’. It was submitted by Mr Lever that such ANSTO conduct was directed to preventing Mr Lever ‘from accessing his entitlement to a benefit (namely an entitlement to access a peer review process) under an industrial instrument’, and that ANSTO’s conduct in refusing to acknowledge Mr Lever’s so-called ‘substantive position’ as at least band 6, and to then seek to deter the applicant from the peer review process, was ‘further evidence of conduct in breach of s 298K(1)(b), (c) and (e)’. I have difficulty with the purported description of that outcome in terms of an attempt by ANSTO to prevent Mr Lever from ‘accessing’ any so-called ‘peer review’. 

11. It was further said by Mr Lever to be not disputed in any event that on and from July 2002, Mr Lever had commenced work as an active union delegate for the CPSU (I was referred in that regard to par 44 of Mr Lever’s 1 June 2006 affidavit).  Mr Lever submitted that ANSTO’s foregoing conduct was ‘injurious to his employment’ and was ‘in part motivated by his active union involvement’.  It was contended by Mr Lever that ‘[t]he evidence supported a finding as to most of the alleged prohibited reasons for the above breaches even absent the reverse onus placed on [ANSTO]’, and further that when that evidence was to be considered ‘in light of the reverse onus … the Court would have little difficulty in finding the breaches proved’. 

    The fourth series of breaches

12. The fourth series of breaches alleged by Mr Lever are set out in pars 41 to 43 of Mr Lever’s points of claim, which are reproduced also below:

    ‘41.The Applicant alleges that ANSTO injured the Applicant in his employment or altered the position of the Applicant to his prejudice in the circumstances particularised at paragraph 40 above in breach of Section 298K(1)(b), (c) and (e) of the pre-reform WR Act. It is alleged that the breach continued up until on or about 23 December 2004.

    Particulars of Breaches

    ANSTO breached Section 298K(1)(b) and (c) and (e) by denying the Applicant payment for overtime performed, in circumstances where ANSTO was aware that the Applicant was performing overtime, which was an injury to the Applicant in his employment or which altered the position of the Applicant to his prejudice and/or which discriminated against the Applicant in the terms or conditions on which ANSTO offered employment or continuing employment to the Applicant compared to other ANSTO employees.

    42.The Applicant alleges that ANSTO’s conduct in breach of Section 298K(1)(b), (c) and (e) as alleged at paragraphs 40 and 41 above was carried out for prohibited reasons as proscribed by Section 298L of the pre-reform WR Act.

    Particulars of Prohibited Reasons

    (a)       The Applicant repeats paragraph 34(a) to (d) above.

    (b)Section 298L(1)(n): the Applicant, in his capacity as a member of, and as the ANSTO Site President of the CPSU, did, or proposed to do, a number of lawful acts or things with the authority expressly conferred upon him by the CPSU at various times in the period August 2002 to December 2002.

    43.As a consequence to the matters particularised at paragraphs 40 to 42 above, the Applicant has suffered and continues to suffer injury, loss and damage.

    Particulars of Injuries, Loss and Damage

    The Applicant has suffered a loss of earnings from April 2003 to December 2004 as a consequence of a loss of opportunity to perform paid overtime, estimated in the amount of $7,000 gross per annum.’ (Emphasis in original.)

    Consistently with Mr Lever’s written submissions, I have not reproduced the material thereby purportedly picked up by way of reference in the points of claim document.  Reference to the expression ‘… a number of lawful acts or things with the authority expressly conferred upon him by the CPSU …’ may be observed, the basis whereof not apparently being specifically identified.  I further observe the absence of a specific averment as to the extent of the payment for overtime which would otherwise have been made available to him, and upon what bases. 

13. Mr Lever contended in any event that ‘[m]uch of the factual background in support of these alleged breaches is uncontested’, being breaches which ‘relate essentially to Mr Lever’s request for paid overtime, which request was denied by [ANSTO]’, and further that ‘[t]he request and denial are not disputed by [ANSTO]’.  Mr Lever further contended that ‘[t]his request and denial clearly amounts to injury to [Mr Lever] in his employment relations with [ANSTO] as defined by the High Court in Patrick Stevedores [195 CLR 1]’, though the submission was not amplified with specificity or exemplification by reference to the dicta cited earlier in these reasons from Patrick Stevedores concerning ‘adverse affection of, or deterioration in, the advantages enjoyed by the employee …’.  The Court was referred thereafter to the evidence of Dr Hammerton, a principal research scientist in ANSTO’s Institute for Environmental Research, to the effect that throughout the years 2002, 2003 and 2004, Mr Lever ‘was regularly engaged in his union activities’; the Court was referred in particular to pars 5, 6 and 7 of her affidavit evidence.

14. I was next referred to the affidavit evidence of Mr Bloom, (who was employed by ANSTO as a Facilitative Technologist Band 6, and who was also a member of ANSTO’s Peak Council as a representative of the Australian Manufacturing Workers’ Union).  He was said to have provided affidavit evidence on behalf of Mr Lever to the effect that Mr Lever ‘had a major influence from 2002 to 2004 in various forums as a CPSU delegate in addressing ANSTO’s staff/management issues’ (I was referred in particular to paragraph 4 of Mr Bloom’s said affidavit of 9 November 2006).  Mr Bloom testified to the effect that Mr Lever was a key union negotiator in the pay scale dispute previously brought before the Australian Industrial Relations Commission, and that Mr Bloom had participated, along with Mr Lever, in a large number of classification disputes at reference panels as union advocates.  Mr Bloom further testified as to a conversation with Dr Smith, the then Executive Director of ANSTO, at which Mr Lever was present, and said to have occurred in about June or July 2004, being a conversation relating to ‘… a number of outstanding unresolved industrial issues, including the amount of time required to negotiate the forthcoming Enterprise Agreement and other union dealings with management’.  Mr Bloom’s unchallenged testimony was that Dr Smith then said as follows:

    ‘I would allow reasonable time for time spent on union activities. I would not put a percentage of time spent.’

    ‘I understand the nature of the work and at any one time the amount of work required to be done is relative to the nature and number of industrial disputes.’

15. It was submitted by Mr Lever accordingly that such evidence as to ANSTO’s acceptance of Mr Lever’s role as an active union delegate, and later as site president for the CPSU, was ‘consistent with any reasonable reading of [Mr Lever’s] duties for [ANSTO]’, albeit in an earlier period during ‘the latter half of 2002 and the first half of 2003 as being devoted in part to his union activities and in part to his substantive role’.  It was further submitted that so much was also consistent with the evidence of Mr Cullen (as appearing at transcript page 551) as follows:

    ‘His Honour:          Was this doing union work in hours during employment hours or externally to employment hours? --- Well, I suppose that was part of the question.  It’s [sic] circumstances which suggested to me it was during hours.

    Mr Shoebridge:      And it was acknowledged within ANSTO that union delegates were allowed to do union work in work hours.  That’s right? --- That’s correct.

    I would take the opportunity to add that on the same page of the transcript the following appears:

    His Honour:           Was there any particular view taken or practice adopted by ANSTO as to employees doing union work during working hours other than perhaps on urgent matters or matters of an exceptional nature? --- My understanding was that it was recognised that they could do union work during official hours up to approximately 10 per cent of the time.’

    It was further submitted by Mr Lever in that context that ‘… it was as much in [ANSTO’s] interest as that of the employees’ unions, to effectively and efficiently resolve industrial disputes involving both individual employees and the enterprise bargaining agreements’; so much would be doubtless accepted by ANSTO, and I do not understand any submission having been advanced by ANSTO to the contrary, though the relevance of the observation to the issues might be debateable, for what that might ultimately matter. 

1. In any event, after testifying in his affidavit evidence in some detail as to what he thus said to Mr Muffatti ‘[o]n or about 22 September 2005’, Mr Davies advanced the following explanation:

   ‘My comments in this regard were motivated solely by the fact that I believed that Mr Lever was refusing to comply with a lawful and reasonable direction.  My desire was not to terminate Mr Lever’s employment or to take other disciplinary action; it was to get him to go to the medical examination.  I was not influenced by the fact that Mr Lever was a union delegate, or by the fact that he had raised various grievances and participated in other disputes.  I think I would react in exactly the same fashion if any other employee was refusing to attend a medical examination despite having been off work for an extended period.’

   It was submitted by ANSTO that Mr Davies ‘… wished only to persuade [Mr Lever] to comply with a reasonable direction to attend a medical appointment’, so much not being a prohibited reason as contended by par 79 of Mr Lever’s points of claim. In my opinion the submission was correct, and no persuasive rejoinder was raised by Mr Lever to the contrary. No steps were taken at any material time to terminate Mr Lever’s employment, or to threaten to do so. Mr Lever’s submission in reply that ANSTO ‘… identifies the threat of termination and… this aspect of the claim is proved in the light of the s 298V presumption’ was I think misconceived because of the absence of any ‘threat’ within the scope of s 298L(2).

   ANSTO’s response to the thirteenth series of breaches pleaded by Mr Lever

2. ANSTO made the preliminary observation that although pars 81 to 83 of Mr Lever’s points of claim alleged breaches of s 298K(1)(a), (b), (c) and (e), such breaches as were particularised in terms were confined to pars (a), (b) and (c) of that subsection, that is to say, in terms of ‘dismiss’, ‘injure’ and ‘alter the position’ of Mr Lever.  In the first place, ANSTO contended that par (a) could have no operation, by reason of ‘… the absence of a dismissal’ of Mr Lever, his allegations involving ‘no more than an attempt to induce a resignation’ and therefore not crystallising in operation the terms of par (a).  As was mentioned further by ANSTO, if any attempt on ANSTO’s part to induce resignation did in fact take place at all, for which there was no evidence, that attempt would have ‘failed’.

3. As appears from the particulars provided to par 82 of Mr Lever’s Points of Claim, which of course I have earlier reproduced in my description of its averments, Mr Lever next pleaded that ‘ANSTO attempted to induce [Mr Lever] to terminate his employment and/or to injure [Mr Lever] in his employment and/or to alter [Mr Lever’s] position to his prejudice by failing and refusing to properly classify [Mr Lever’s] position and to thereby put pressure on [Mr Lever] to … not pursue his classification dispute [and] therefore… remain in a low classification to the detriment of [Mr Lever] in his position at ANSTO and to the injury of [his] employment at ANSTO’. ANSTO submitted in response that ‘[a]n attempt to injure or alter is not forbidden by s 298K(1)(b) or (c) as such, [since] [t]here must be an injury or alteration, or a threat to injure or alter’, yet ‘[n]o threat to injure or alter is alleged by [Mr Lever]’. In other words, to plead an ‘attempt’, without more, did not trigger the operation of those paragraphs of s 298K(1), which was literally correct. Additionally ANSTO submitted that ‘there was no injury to [Mr Lever’s] employment or alteration of his position to his prejudice’, in that ANSTO ‘… did not fail to properly classify [Mr Lever]’, who remained ‘… at all times, properly classified’, given that an incorrect classification by an employer of an employee’s capacity or suitability is susceptible to contravention of subsection of subs 298K, which I would have thought would require at least more than merely any such ‘per se’ circumstances.  ANSTO thus emphasised in any event that Mr Lever ‘… was never reduced in classification [such as] would have been an injury to his employment or an alteration of his position to his prejudice’, Mr Lever having thereby at ‘[a]t all times … remained in his present classification or was promoted [which] could hardly be an injury or prejudicial alteration’.  ANSTO contended that a further reason why the allegations of breach in par 82 should fail was that the same depended on the allegations of fact and argument contained in par 81 of the points of claim that in any event were ‘unsupported by evidence and wrong’. 

4. ANSTO proceeded thereafter to address seriatim each of subpars (a) to (f) of the ‘Particulars of Conduct’ pleaded to that par 81, as follows:

   (i)as to subpar (a), which alleged that Dr Doherty misled Mr Lever into believing that he would be promoted to SPO1 if he ‘signed off’ on his 1999/2000 objective setting and assessment form, Dr Doherty did not mislead Mr Lever as to any promotion in his favour, for reasons which have been earlier outlined;

   (ii)as to subpar (b), which alleged that Dr Doherty failed to correctly classify Mr Lever on 2 August 2002, such allegation had not been made out for reasons which have been also earlier outlined in these reasons;

   (iii)as to subpar (c), the same was said to have revealed Mr Lever’s so-called ‘one-eyed view of his classification dispute’; thus Mr Lever alleged that Dr Doherty ‘declined to reconsider’ his decision about Mr Lever’s classification at a meeting on 21 August 2002 attended also by Mr Crakanthorp; the agenda of that meeting was characterised in short by ANSTO in terms of ‘discussion … about that decision’; moreover it was contended by ANSTO that ‘[t]he meeting itself constituted a reconsideration’, but that ‘Dr Doherty was not persuaded that he was wrong’, and further that ‘[h]e did not change his decision after reconsidering it’; accordingly it was contended by ANSTO that Mr Lever ‘wrongly regards Dr Doherty’s failure to change his decision as a failure to reconsider’;

   (iv)as to subpar (d), Mr Davies testified that he was ‘fairly sure’ that he did not make any such statement, and he then proceeded purportedly to explain that:

   ‘… I cannot think of any instance in which a staff member has received a CAS based promotion of two classifications (ie skipping an entire classification and all the incremental points within it).  The only times I can think of people receiving a promotion which skipped an entire grade have been when an existing employees has successfully applied for an advertised vacancy at the higher level and won it after competing through a merit selection process.  This sort of promotion is quite different from that which happens under CAS’;

   Moreover Mr Crakanthorp for his part testified as to his absence of awareness of anyone being promoted in the manner which Mr Lever was proposing; ANSTO asserted further in that context that Mr Lever’s ‘verballing’ of Mr Davies was ‘glib and self-serving’, particularly in the light of Mr Davies’ cogent reasons for refuting what was thus attributed to him; it was further said by ANSTO that ‘… even if other employees … had been given CAS promotions that skipped a grade, it does not follow that [ANSTO] discriminated against [Mr Lever] by not giving him such a promotion’, and in that regard, ANSTO pointed out that ‘[t]he circumstances surrounding the other promotions would have to be examined in order to ascertain whether they were the same or sufficiently similar to the circumstances of [Mr Lever]’, since ‘[t]he promotions of other employees might have been due to circumstances that did not apply to [Mr Lever]’;

   (v)as to subpar (e), Mr Lever asserted, as submitted by ANSTO, that ‘… a comparison between his translation to a new classification structure in June 2002, and the translation of 20 other employees at that time, demonstrates discrimination against him by [ANSTO]’; that reclassification evidence appeared in par 47 of Mr Lever’s affidavit of 1 June 2006; ANSTO’s response however was that such evidentiary material merely disclosed that ‘… 20 employees including Mr Davies were reclassified and about 20 others including [Mr Lever] were not’, assuming that asserted evidentiary material to have been authentic; moreover it was pointed out by ANSTO that any such circumstances, if correct, did ‘not exclude the possibility, or likelihood, that the circumstances of the group of employees that included Mr Davies were sufficiently different to those of the group that included [Mr Lever] to warrant their differential treatment’; in any event, ANSTO emphasised that Mr Lever was thereby relevantly treated the same as about 20 of its other employees; and

   (vi)as to subpar (f), ANSTO’s rejoinder was that Mr Lever’s ‘submission … is not supported by the evidence’ and that ‘at all times [ANSTO] correctly classified [Mr Lever]’, and moreover that ANSTO’s witnesses ‘explicitly den[ied] that they had prohibited reasons for the conduct alleged in paragraphs 81 and 82 of the [Points of Claim]’ (the subject of course of the thirteenth series of breaches).

5. Accordingly ANSTO’s submission relevantly to what I have reviewed above was that its conduct as alleged by Mr Lever in pars 81 and 82 of Mr Lever’s points of claim ‘did not occur, or was not in breach of s 298K(1)’, and that ‘[n]o grounds existed for the Court to make any of the orders sought’.

6. Alternatively it was asserted by ANSTO that if the Court should find that there had been established any conduct for a reason prohibited by the Act, the Court should not grant the order specified in par 84(c) of the points of claim ‘that ANSTO classify [Mr Lever] in his employment as no less than a Band 7 employee with retrospective effect from 1 July 1999 (being the commencement date for the 1999-2000 assessment period)’. Two propositions were broadly distilled by ANSTO by way of summary in that regard, as follows:

   (i)Mr Lever had asserted many times in his affidavit and documentary evidence the opinion that he should be classified at a higher level, yet his senior managers at ANSTO had repeatedly disagreed with that opinion’; and

   (ii)Mr Lever had ‘conspicuously failed to provide evidence sufficient for the Court to arbitrate on this difference of opinion’.

   Moreover ANSTO asserted in any event that ‘[t]he classification of its employees is a matter within the prerogative of [ANSTO]’, and that as Mr Lever’s witness, Mr David Melville, said in the course of cross-examination, such classification involved inherently and necessarily subjective and discretionary considerations about which reasonable people could conceivably disagree.  Accordingly so ANSTO’s submissions concluded, ‘[t]he Court should be reluctant to involve itself in such an exercise [and] should allow [ANSTO] to assess the classification appropriate for [Mr Lever], having regard to its operational requirements’. 

7. As to par 82 of Mr Lever’s points of claim, it suffices to record ANSTO’s formal submission in relation thereto, which concerned an allegation of injury in employment in the circumstances particularised in par 81 of Mr Lever’s points of claim, as follows:

   ‘[Mr Lever] makes no submission on these paragraphs and purports to reserve a right to make submissions about them in reply.  He has no such right.  He should be treated as having abandoned the allegations in these paragraphs of the [Points of Claim]’.  His strategy denies [ANSTO] the opportunity that he now seeks to make written comment on the opponent’s submissions.’

   In reply, Mr Lever joined issue in respect of these matters with emphases that ‘… the fact of injury or dismissal is not required’, since ‘[i]n light of s 298L(2) the applicant need only prove a threat’, or so Mr Lever submitted. However, of course, any such ‘threat’ within that subsection must be ‘made to engage in conduct referred to in subsection 298K(1) or (2)’, and pursuant to subs 298L(1) be for a ‘prohibited reason’ within s 298L(1) ‘with the intent of dissuading or preventing the person from doing the act, or coercing the person to do the act …’ within s 298L(2)

   ANSTO’s response to the fourteenth series of breaches pleaded by Mr Lever

8. The response lastly falling for consideration (the fifteenth series of breaches not having been ultimately pressed) relate to what is pleaded by pars 85 to 88 of Mr Lever’s points of claim (ante); after setting out the text of those paragraphs of the Points of Claim, the written submissions of counsel for Mr Lever added the following by way of summary:

   ‘Again the specifics establishing these individual breaches have been dealt with in the course of the submissions above.  It is submitted that taken together, the individual breaches show a course of conduct establishing that at least on and from February 2001 ANSTO has blocked or interfered with the Applicant’s attempts to resolve his classification dispute with ANSTO for prohibited reasons as alleged.  The applicant reserves his right, as with all breaches alleged, to make further submissions orally and where appropriate in reply in this regard.’ 

9. I think however that my reasons for decision already set out have covered the field of the material elements of Mr Lever’s case as ultimately pursued in the proceedings.  In brief response to this fourteenth series of breaches, Mr Lever formally joined issue, with emphasis again that ‘[t]he pleadings are to the effect that, taken as a whole, [ANSTO’s] conduct amounts to injury and/or alteration of [Mr Lever’s] employment to his detriment’.  As will have already been indicated, I think that Mr Lever has been unable to make good any such claim on the evidence and in the light of the legislation and the authorities to which I have already referred.

   Conclusions

10. The respective cases articulated by the applicant, Mr Lever, and the respondent, ANSTO, were comprehensive in scope, both as to the factual issues placed before the Court and as to the purported operation relevantly of the general law.  I have sought to set out in detail the nature and extent of the contextual circumstances which the parties respectively adduced in the course of the presentation of their respective cases inclusive of the principles of industrial law which they contended to be here applicable.  The present proceedings have featured a number of contentions as to statutory interpretation reflective of principles that have emerged in the course of resolution of industrial litigation since the Workplace Relations Act 1996 (Cth), and the subsequent Workplace Relations Amendment (Work Choices) Act 2005 (Cth), came respectively into operation. Each of the parties have provided to the Court extensive written submissions subsequent to the close of the ninth day of hearings of the trial, largely in relation to the factual issues presented for resolution, and concerning which I have in many instances expressed already preliminary views.

11. I would offer the observation that the very extensive written material provided by the parties to the Court by way of affidavit evidence and concluding written and oral submissions raises legitimate concern as to whether litigious disputes conducted, in particular, under the aegis of Division 3 of Part XA (now repealed) of the Act might well be more expeditiously and economically conducted by way of the more traditional trial proceedings, whereby the evidence of lay witnesses, whether or not preceded by affidavit or otherwise written statements, follows upon completion of pleadings and discovery of documents and the administration of interrogatories. For a trial judge to receive testimony in that more time honoured way facilitates the judicial task of assessing the credibility of testimony. Of course expert testimony per se is excluded from those observations.  A more traditional procedural course along those lines would tend to achieve an earlier hearing, as well as reduced legal cost to the parties.  Moreover the introduction of jurisdiction for the Federal Court to make costs orders in industrial cases would tend to assist the confinement at least of the principal issues to be litigated.  The present litigation has exemplified in my opinion the tendency to expand to an unnecessary extent the nature and extent of the issues falling for determination, both procedural and ultimately determinative, mainly because of the evolving scope of the evidentiary issues.  Moreover an increased resort to oral testimony, in the place of affidavit evidence, except in the case of expert evidence, would tend to reduce the scope and duration of the entire litigious process in more instances than not, as well as contribute to earlier hearings and thus determinations.  In short, I think that the prospect of shorter and more confined scope of litigation would be enhanced if the present processes of the Court in industrial matters could be reformed along the lines above suggested.  In the present case, the substance and reality of the issues falling for resolution did not warrant the intricacy and length of the judicial process which here evolved.

12. The structural feature of the presentation of Mr Lever’s case has been of course its assignment of fifteen so-called series of breaches (of which the last was not pressed in submissions) allegedly occasioned in circumstances involving Mr Lever’s endeavours to achieve his promotion as an employee to the level of employment within ANSTO to which he aspired and for which he asserted qualification and entitlement. As I have recorded, he was initially promoted in December 2000 to a level above that to which he was originally appointed after he first joined ANSTO on 28 April 1999. Exemplifications of that kind of circumstance are not readily accommodated in a conceptual sense by the s 298K notions of dismissal, injury in employment, altering the position of employment to an employee’s prejudice and discrimination in the terms or conditions upon which employment is offered or made available, within the scope of subsection (1). The present proceedings are of course confined in operation to aspects of subsection (1) of s 298K, and concern the implications of ‘prohibited reasons’, proscribed in subsection (1) of the comprehensive s 298L.

13. The controversy at the centre of this dispute has been Mr Lever’s complaint as to the inadequacy of his promotion within the employment structure of ANSTO, being a dispute which originated in or about late October 2000 and crystallised especially in about August 2002 in the context of his meeting with certain senior ANSTO executives.  At or about that latter time, Mr Lever became a delegate of the CPSU at the ANSTO operational establishment at Lucas Heights, that occurring therefore about two years or so after he had initially agitated for his ranking and consequential remuneration as a Senior Professional Officer 1 (which I have abbreviated already in these reasons as ‘SPO1’) within the ANSTO employment hierarchy.  Accordingly it was for over two years or so that Mr Lever agitated for his recognition of the employment status of SPO1 to which he thus aspired, during which time he engaged actively in continuing perseverance to that end on the one hand, though to an extent of, what may be described as, unfortunate insensitivity as to his relationship with senior holders of office within ANSTO on the other hand.  Yet as I have just indicated his role as a delegate with the CPSU did not commence until some time after his differences with ANSTO had crystallised or at least substantially evolved.  It was hence broadly in that context that the controversies and fractured relationships evolved and crystallised to the extent I have recorded.

14. The conclusions I have reached in these necessarily lengthy reasons for judgment are that the fourteen so-called series of breaches, as pleaded and ultimately maintained by his extensive written submissions and subsequent oral submissions, should not be upheld at least to any significant or relevant extent and must therefore be dismissed as not sustainable.  I have reached that conclusion principally for the reasons which were framed extensively and yet precisely by the legal representatives of ANSTO, and which reasons I have summarised, along with those reasons articulated by the legal representatives of Mr Lever.  In respect of none of those so-called series of breaches has Mr Lever been able to establish or demonstrate sufficient or adequate support or validity for his case as to contravention of the subject legislation based upon or arising out of circumstances established by the evidence adduced in the proceedings, and otherwise in accordance with the operation of the general law upon those circumstances.  Put another way in summary, Mr Lever has been unable to demonstrate that there was occasioned to him ‘dissmiss[al], injur[y] … in employment’, ‘alter[ation] [of employment] position … to [his] prejudice’ or ‘discriminat[ory] [conduct] against another person in the terms or conditions on which [ANSTO] offer[ed] to employ [another] person’, in any such instances for any ‘prohibited reason’ within the operation of s 298L of the Act. In short, none of the various so-called series of breaches pleaded by Mr Lever have been otherwise made out, for the reasons comprehensively framed by counsel for ANSTO.  In my opinion, the carefully analytical submissions of ANSTO entirely answered the somewhat sweeping scope and manner of presentation of Mr Lever’s case, inclusive of his extensive submissions in reply that tended to fall significantly short by way of purported rejoinder.  

1. To set out my reasons for those conclusions necessarily entailed little more than a reiteration of the substance of the contentions of ANSTO as I have framed and summarised the same in a sequence corresponding with Mr Lever’s extensive points of claim, being contentions which, as I have thereby indicated seriatim, did not come adequately to issue in the course of Mr Lever’s submissions in reply.  ANSTO has succeeded in establishing the correct or substantially correct operation relevantly of the legislation to the circumstances postulated and as I have sought to summarise in relation to each of the series of breaches propounded by Mr Lever. In my opinion Mr Lever’s submissions have sought to advocate operations of the legislation in relation to circumstances not available under or not otherwise geared to the operation relevantly of sections 298K and 298L of the Act or in conformity with the body of judicial interpretation upon those statutory provisions. In contrast, ANSTO’s submissions have been framed largely in line with the established authoritative interpretation of the subject statutory provisions, to the extent that, of course, authority is presently available, and in line for the greater part at least with the prevailing testamentary and documentary evidence.

2. Accordingly it would be unduly repetitive for me to restate in these conclusions the evidentiary and juridical submissions, my evidentiary findings, and the applicable principles of the general law and their operation relevantly which I have made or sought to apply or affirm in favour of ANSTO (as the case may be) in relation to each of the controversial segments raised by Mr Lever and addressed in these reasons for judgment.  ANSTO has fully and comprehensively addressed and answered correctly, or substantially and sufficiently so, for the reasons I have recorded in favour of ANSTO, the fourteen series of breaches propounded by and on behalf of Mr Lever both in his submissions in chief and reply.  For the reasons apparent already from my recorded examination of each of ANSTO’s responses and contentions which I have restated in these reasons, my conclusion is that Mr Lever has failed to establish any of the series of breaches propounded on his part in the proceedings, and that accordingly the entirety of the proceedings must be dismissed.  I will make an order accordingly. 

I certify that the preceding two hundred and thirty-six (236) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Conti .

Associate:

Dated:        16 August 2007

Counsel for the Applicant:	Mr D M Shoebridge
Solicitor for the Applicant:	Employment Lawyers
Counsel for the Respondent:	Mr R F Crow
Solicitor for the Respondent:	Henry Davis York Lawyers
Dates of Hearing:	27, 28, 29 and 30 November 2006; 1, 4, 8, 14 December 2006; 5 April 2007 and 28 June 2007
Date of Judgment:	16 August 2007