Maslen v Core Drilling Services Pty Ltd & Anor
[2013] FCCA 460
•24 June 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MASLEN v CORE DRILLING SERVICES PTY LTD & ANOR | [2013] FCCA 460 |
| Catchwords: INDUSTRIAL LAW – General protections claim – termination – whether termination for prohibited reason. |
| INDUSTRIAL LAW – Whether non-payment of entitlements – whether award breach. |
| INDUSTRIAL LAW – Deductions by employer – whether employee paid in full. |
| INDUSTRIAL LAW – Contravention – whether second respondent “knowingly involved”. |
| Legislation: AWU Gold (Mining and Processing) Award cl.15 Defence Reserve Service (Protection) Act 2001 (Cth), s.17 Fair Work Act 2009 (Cth), ss.12, 44, 117, 323, 326, 340, 341, 342, 352, 361, 550 Fair Work Regulations 2009 (Cth), reg.2.12 Mining Industry Award 2010 cll.3.1, 13.1, 17.1, 17.4, 19.2, 21.1 Trade Practices Act 1974 (Cth), s.75B |
| Cases cited: Australian and New Zealand Banking Group Ltd v Finance Sector Union of Australia (2001) 111 IR 227; [2001] FCA 1785 Barclay v Board of Bendigo Regional Institute of Technical and Further Education (2010) 193 IR 251; [2010] FCA 284 Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 86 ALJR 1044; [2012] HCA 32 Construction, Forestry, Mining and Energy Union v Clarke (2007) 164 IR 299; [2007] FCAFC 87 Construction, Forestry, Mining and Energy Union v Mammoet Australia Pty Ltd (2011) 254 FLR 59; [2011] FMCA 802 Construction, Forestry, Mining and Energy Unionv Mammoet Australia Pty Ltd (2012) 206 FCR 135; [2012] FCA 850 Construction, Forestry, Mining & Energy Unionv Mammoet Australia Pty Ltd [2013] HCATrans 79 Elliott v Kodak Australasia Pty Ltd (2001) 108 IR 23; [2001] FCA 807 Giorgianni v The Queen (1985) 156 CLR 473 Poletti v Ecob (No.2) (1989) 91 ALR 381 Torpia v Empire Printing (Australia) Pty Ltd (2009) 188 IR 306; [2009] FMCA 853 Yorke & Anor v Lucas (1985) 158 CLR 661 |
| The Concise Oxford Dictionary of Current English, (7th Edn) (Oxford: Clarendon Press, 1984) |
| Applicant: | ANDREW OWEN MASLEN |
| First Respondent: | CORE DRILLING SERVICES PTY LTD |
| Second Respondent: | LOU GURNELL |
| File Number: | PEG 373 of 2011 |
| Judgment of: | Judge Lucev |
| Hearing date: | 30 October 2012 |
| Date of Last Submission: | 30 October 2012 |
| Delivered at: | Perth |
| Delivered on: | 24 June 2013 |
REPRESENTATION
| Counsel for the Applicant: | In person |
| Counsel for the Respondents: | Mr A Longland |
| Solicitors for the Respondents: | Herbert Smith Freehills |
ORDERS
Having regard to the findings in the Court’s judgment delivered today the parties are to confer with a view to reaching agreement on the quantum of the alleged underpayment, if any, under the Mining Industry Award 2010, and if agreement can be reached to file a Memorandum of Consent Agreement by 3 July 2013. If no agreement can be reached, each party is to file and serve a detailed schedule of alleged underpayments, if any, under the Mining Industry Award 2010, by 8 July 2013, and the final quantum of the alleged underpayments, if any, will be determined by the Court on the papers.
Otherwise the matter is adjourned to a date to be fixed for the making of final declarations, and orders if any, as to liability, with costs reserved.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 373 of 2011
| ANDREW OWEN MASLEN |
Applicant
And
| CORE DRILLING SERVICES PTY LTD |
First Respondent
| LOU GURNELL |
Second Respondent
REASONS FOR JUDGMENT
Application and background
By an application, and supporting affidavit affirmed on 9 November 2011,[1] both filed on 9 December 2011, the applicant, Andrew Owen Maslen[2] alleges that the first respondent, Core Drilling Services Pty Ltd,[3] contravened s.340 of the Fair Work Act 2009 (Cth)[4] by terminating his employment. The application, however, did not set out the claims.
[1] “Applicant’s November 2011 Affidavit”.
[2] “Mr Maslen”.
[3] “Core Drilling”.
[4] “FW Act”.
On 13 February 2012 at the first directions hearing the Court ordered that Mr Maslen file an amended application and amended Form 2. The amended application and Form 2 were filed on 17 February 2012.
Issues
There are four issues before the Court. They are:
a)whether the termination of Mr Maslen’s employment by Core Drilling constituted a contravention of s.340 of the FW Act;[5]
b)whether the total monies paid to Mr Maslen by Core Drilling met its obligations under the Mining Industry Award 2010;[6]
c)whether deductions made from payments to Mr Maslen upon the termination of his employment involve a breach of s.323 of the FW Act;[7] and
d)in the event, that if any of the claims outlined in the above paragraphs are proved, whether the second respondent, Lou Gurnell[8] was “knowingly involved” in any contravention in the sense in which that expression is used in s.550 of the FW Act.[9]
[5] “General Protections Claim”.
[6] “the Award” (“Award Breach Claim”).
[7] “Deductions Claim”.
[8] “Ms Gurnell”.
[9] “Personal Liability Claim”.
Basic facts
Mr Maslen was employed by Core Drilling from 4 July 2011 to 24 September 2011 inclusive as a driller’s assistant working at two remote mine sites. Ms Gurnell employed the applicant on behalf of Core Drilling, and also effected the applicant’s termination of employment.
Mr Maslen worked on a fly-in fly-out basis that was notionally two weeks on site followed by one week off site. When on site Mr Maslen worked a series of 12 hour shifts, comprising a number of night shifts followed by a number of day shifts with a break between the ending of a day or night shift and the commencement of the subsequent night or day shift.
Mr Maslen was paid for the time on site and not paid for the time off site.
The Mining Industry Award 2010[10] applied to Mr Maslen’s employment.
[10] “Award”
The contract of employment was partly oral and partly written. The oral part of the contract, agreed with Ms Gurnell on behalf of Core Drilling, was that Mr Maslen would work a two week on and one week off roster rather than a four week on and two week off roster provided for in the written contract of employment. Core Drilling had a discretionary right under the contract to change the roster.
The contract of employment provided for Mr Maslen to be paid $250 per working day. The $250 per working day remuneration was to be paid in satisfaction of all of Mr Maslen’s rights to payment of all allowances such as overtime, weekend rates, public holiday shift penalties, disability and first aid allowances, night shift and travel time. Core Drilling could, at its discretion, pay a shift bonus of $50 for each shift on which Mr Maslen’s name appeared on the drill report to indicate that he was on shift.
General Protections Claim
Mr Maslen submits that:
a)Core Drilling and Ms Gurnell required the applicant to attend two one day induction training sessions in Perth on 11 and 12 July 2011. Mr Maslen attended the induction sessions which lasted eight hours on each day. Mr Maslen asked Ms Gurnell when he would be paid for attending the induction sessions. Ms Gurnell told the applicant he would not be paid for attending the induction sessions. Ms Gurnell admits telling Mr Maslen this. Core Drilling did not pay Mr Maslen for attending the induction sessions until six days after his employment had been terminated;
b)Mr Maslen was also required by Core Drilling and Ms Gurnell to attend training sessions during his time off site on 8 and 13 September 2011. Mr Maslen attended the training sessions which again lasted eight hours on each day. Mr Maslen asked Ms Gurnell if he would be paid for attending the training sessions. Ms Gurnell informed the applicant that he would not be paid for attending the training sessions. Ms Gurnell admits telling Mr Maslen this. Core Drilling did not pay Mr Maslen for attending the training sessions until six days after his employment had been terminated on 24 September 2011. Mr Maslen had written to Core Drilling and Ms Gurnell on 19 September 2011 complaining about not being paid for attending the induction and training sessions;
c)when he was employed by Core Drilling Mr Maslen had applied to join the Army Reserve. Mr Maslen informed Ms Gurnell of this at the time of his being employed;
d)in a conversation with Ms Gurnell on 13 September 2011 Mr Maslen advised that he may need leave to attend Army Reserve training some time in the following six weeks. Ms Gurnell said that she would not permit such leave. However, Mr Maslen was at no time whilst employed by Core Drilling actually a member of the Army Reserve;
e)in his letter of 19 September 2011 to Core Drilling and Ms Gurnell Mr Maslen informed them of his right to take Defence service leave;
f)during his employment with Core Drilling Mr Maslen had workplace rights, being:
i)the right to payment of wages for attending, at the direction of Core Drilling, the induction and training sessions in July and September 2011, such right being conferred by clause 13(1)(a) of the Award, a workplace instrument within the meaning of s.12 of the FW Act;
ii)the right to make a complaint or inquiry about the non-payment of wages for attending the induction and training sessions, such right being a complaint or inquiry in relation to his employment and conferred by s.341(c)(ii) of the FW Act; and
iii)the right to make a complaint or inquiry about taking Defence service leave; such a right being a complaint or inquiry in relation to his employment conferred by s.17 of the Defence Reserve Service (Protection) Act 2001 (Cth) and s.341(c)(ii) of the FW Act;
g)there was a causal connection between Core Drilling’s termination of Mr Maslen’s employment, and Mr Maslen’s possession and exercise of the workplace rights. The causal connection amounted to the taking of adverse action, within the meaning of s.342(1) of the FW Act by Core Drilling against Mr Maslen;
h)Ms Gurnell was involved, within the meaning of s.550(2) of the FW Act, in Core Drilling’s contravention of s.342(1) of the FW Act; and
i)under s.361 of the FW Act, Core Drilling and Ms Gurnell bear the burden of rebutting the assertion that the termination was for a prohibited reason, and Mr Maslen asserts that the evidence of Core Drilling and Ms Gurnell does not rebut the assertion of termination for a prohibited reason.
The respondents submit that:
a)Mr Maslen had not performed any work in the mining industry, nor at remote locations, nor on fly-in fly-out rosters, prior to his employment by Core Drilling. In his contract of employment, the provision for a probationary period is set out in the following terms:
All new employees, other than casual employees, shall be initially engaged by The Company on a probationary basis for a period of 12 weeks;
b)it is not in issue that Mr Maslen’s employment was terminated on 23 September 2011, some 3 days prior to the expiration of his probationary period on 26 September 2011. This decision was made jointly by Core Drilling and Ms Gurnell;
c)it is normal and a regular feature of employment with Core Drilling that prior to the expiration of a probationary period the relevant employee’s performance is considered and reviewed before a decision is made whether to continue their employment past the end of their probationary period. Mr Maslen’s direct supervisors, unsatisfied with the performance by him of his duties, reported to Core Drilling and Ms Gurnell, who then discussed the reports they received and made a decision that Mr Maslen’s employment beyond the probationary period was to be terminated because it “just wasn’t working out”;
d)both Ms Gurnell and Mr Wegner outlined the reasons for their decision that Mr Maslen’s employment ought to be terminated. They each received feedback from managers to whom Mr Maslen reported, namely, Mr Butler and Mr Rowe, and discussed that feedback;
e)Mr Rowe and Mr Butler were each present on site with Mr Maslen during the 48 shifts that he performed work. Each was in a position to, and did, observe the performance of Mr Maslen during his employment. Their observations are recorded in their affidavits sworn on 24 July 2012[11] and 3 August 2012[12] respectively. They were each managing a team, in which Mr Maslen was a member, of six persons. The work to be performed involved drilling around holes and extracting core samples from different depths. They observed Mr Maslen’s performance at close quarters, and Mr Maslen does not deny that this was the case;
f)the particularly short period of Mr Maslen’s employment (only 48 shifts) makes it likely that the recollections of Mr Rowe and Mr Butler concerning instances involving Mr Maslen are clear and accurate;
g)an employee who has a workplace right, or who exercises a workplace right, is in no special position by reason of having or exercising that right. Even if it is found that the communication of workplace rights alleged was made to Ms Gurnell prior to or at the time of the decision to terminate Mr Maslen’s employment, that does not render Mr Maslen immune from the possibility that Core Drilling might find that it was not appropriate to extend his employment beyond the probationary period because he “just wasn’t working out”;[13] and
h)Core Drilling contends that the Court ought to find as a matter of fact that the reasons proffered by Ms Gurnell and Mr Wegner were the true reasons for their decision to terminate Mr Maslen’s employment, and each deny that the proscribed reasons alleged by Mr Maslen were part of the reason for their decision, and say that their evidence is corroborated and consistent with that of Mr Rowe and Mr Butler and should be accepted.
[11] “Mr Rowe’s Affidavit”.
[12] “Mr Butler’s Affidavit”.
[13] Mr Rowe’s Affidavit, para.24.
In reply, Mr Maslen submits that:
a)Core Drilling and Ms Gurnell assert that the decision to terminate Mr Maslen’s employment was not based on any of the proscribed reasons alleged by him and say that their evidence is corroborated by and consistent with the evidence of Mr Rowe and Mr Butler and should be accepted;
b)Mr Rowe and Mr Butler admit to having read Mr Maslen’s affidavit, sworn on 12 December 2011,[14] which is Annexure A to the affidavit of Mr Maslen dated 6 July 2012;[15]
[14] “Mr Maslen’s December 2011 Affidavit”.
[15] “Mr Maslen’s July 2012 Affidavit”.
c)Mr Rowe in his affidavit:
i)does not say that a conversation in which Mr Maslen alleged that Mr Rowe said that Mr Maslen should not push the issue of payment for attending training because other employees had been let go for complaining about a lot less important things;
ii)does not deny that on 23 September 2011, he and Mr Michael Spithill behaved as Mr Maslen asserts at paragraph 33 of his affidavit of 12 December 2011;
iii)does not deny that on 24 September 2011, he had the conversation asserted by Mr Maslen at paragraph 36 of his affidavit of 12 December 2011, and said to Mr Maslen that Ms Gurnell wanted to “get rid of” Mr Maslen; and
iv)does not deny having the conversation with Mr Spithill that Mr Maslen asserts at paragraph 35 of his affidavit 12 December 2011;
d)the evidence of Mr Rowe does not corroborate the evidence of Ms Gurnell and Mr Wegner.
e)Core Drilling, Ms Gurnell and Mr Wegner assert that continual adverse reports of Mr Maslen’s attitude and performance during his employment were made to them by Mr Rowe and Mr Butler yet:
i)Mr Maslen was sent on two training courses in the fortnight prior to his termination;
ii)no witnesses assert that the applicant was ever told that his employment would be in jeopardy if his performance and attitude did not change for the better;
iii)no documentation was produced about concerns held about or complaints made about Mr Maslen’s attitude and performance prior to Mr Maslen writing his letter to Ms Gurnell on 19 September 2011;
iv)Mr Butler alleges that he was only asked about Mr Maslen’s performance by Ms Gurnell one hour prior to Ms Gurnell sending Mr Maslen his letter of termination on 23 September 2011;[16] and
v)Mr Butler emailed his concerns to Ms Gurnell an hour before Mr Maslen was sent the Termination Letter;
f)the course of conduct of the respondents and their witnesses is not consistent with Mr Maslen’s employment being terminated because of his performance and attitude at work; and
g)the respondents have not rebutted the presumption in s.361 of the FW Act that the applicant’s employment was terminated for the reasons alleged.
[16] “Termination Letter”.
Consideration – General Protections Claim
In Barclay v Board of Bendigo Regional Institute of Technical and Further Education[17] the Federal Court rejected the respondents’ submissions that the reasons given by a decision-maker were irrelevant as “inconsistent with the legislative history, relevant principles of statutory construction and authority”.[18] Rather, the Federal Court said:
The task of the court, in a proceeding such as the present is … to determine why the employer took the adverse action against the employee. Was it for a prohibited reason or reasons which included that reason? In answering this question, evidence from the decision-maker which explains why the adverse action was taken will be relevant. If it supports the view that the reason was innocent and that evidence is accepted the employer will have a good defence. If the evidence is not accepted the employer will have failed to displace the presumption that the adverse action was taken for a proscribed reason.[19]
[17] (2010) 193 IR 251; [2010] FCA 284 (“Barclay”).
[18] Barclay IR at 258 per Tracey J; FCA at para.24 per Tracey J. As to the legislative history, see Elliott v Kodak Australasia Pty Ltd (2001) 108 IR 23; [2001] FCA 807.
[19] Barclay IR at 260-261 per Tracey J; FCA at para.34 per Tracey J.
In Board of Bendigo Regional Institute of Technical and Further Education v Barclay,[20] in a joint judgment, the High Court endorsed the approach of the Federal Court at first instance outlined above. Two justices of the High Court observed that the contrary approach, if accepted, would “destroy the balance between employers and employees”[21] central to civil penalty regime established under the FW Act, saying that “it is a misunderstanding of, and contrary to, [authority] to require that the … reason for adverse action must be entirely dissociated from an employee’s union position or activities”.[22]
[20] (2012) 86 ALJR 1044; [2012] HCA 32 (“Barclay – High Court”).
[21] Barclay – High Court ALJR at 1056 per French CJ and Crennan J; HCA at para.61 per French CJ and Crennan J.
[22] Barclay – High Court ALJR at 1056 per French CJ and Crennan J; HCA at para.61 per French CJ and Crennan J.
Another two justices of the High Court also approved the primary judge’s approach in Barclay holding that “it was the reasons of the decision-maker at the time the adverse action was taken which was the focus of the inquiry”.[23]
[23] Barclay – High Court ALJR at 1066 per Gummow and Hayne JJ; HCA at para.127 per Gummow and Hayne JJ.
In a separate judgment, a single justice of the High Court concurred in upholding the approach and decision of the primary judge, and was critical of any differentiation being made between “conscious” and “unconscious” reasons, noting that such an approach would impose an “impossible burden” on employers facing accusations of prohibited adverse action.[24]
[24] Barclay – High Court ALJR at 1069 per Heydon J; HCA at para.146 per Heydon J.
The approach in Barclay, upheld in Barclay – High Court, suggests that the decision-maker’s subjective intention, if accepted by the primary judge in the context of relevant objective facts, will provide a defence to an adverse action claim. Mere assertion is not enough, however, and whether an employer took adverse action for a prohibited reason is a question of fact for a primary judge to determine on the evidence, bearing in mind the employer bears an onus to show that it did not take adverse action for a prohibited reason.
Mr Maslen alleges that on or about 15 July 2011 when on the Plutonic site he complained about non-payment for training on 11 and 12 July 2011 and he was told by Mr Rowe not to push the training pay issue, and that others had been sacked for less. Mr Rowe denies this and says that he told Mr Maslen that it was an administrative matter. The Court prefers the evidence of Mr Rowe as more credible. The alleged predilection of Core Drilling to terminate those who complained about their workplace rights was also denied by Ms Gurnell and Mr Wegner, and no other evidence to support this broad assertion was led by Mr Maslen.
There is little doubt that the two Rig Managers on site, Mr Rowe and Mr Butler, had little regard for Mr Maslen’s work skills, work rate and work ethic.
Mr Rowe details a series of incidents in which:
a)Mr Maslen, on his first shift on a rig, refused to clean up, stating that cleaning duties were not something he was paid to do;
b)Mr Maslen regularly used his mobile phone on site, notwithstanding the head contractor’s ban of the use of mobile phones on site;
c)Mr Maslen was tardy in the performance of driving duties, including one occasion, on or about 21 September 2011, when Mr Maslen was on the water truck and took two to three times longer than normal to carry out a task;
d)Mr Maslen’s partial completion of jobs such as pre-start checks, which on at least one occasion, on 30 July 2011, resulted in a possible serious safety hazard as a consequence of a failure to secure a lid on the rig motor; and
e)it fell to other crew members to complete work not performed by Mr Maslen, including, on or about 15 August 2011, a trip hazard which Mr Maslen had been asked to clear.[25]
[25] See Mr Rowe’s Affidavit, paras.14 and 16.
Mr Rowe also said that Mr Maslen’s overall performance was inconsistent, that he would perform relatively well for a few days, and then refuse to carry out assigned tasks for a few days. Mr Rowe says that he told Mr Maslen approximately twice a day that he needed to improve, and to listen, and that his attitude was not right, and went so far as to tell him that if he did not improve he would be removed from the rig, and that he would request that Mr Maslen be removed from the rig, and taken to Perth for discussions concerning his performance.[26]
[26] See Mr Rowe’s Affidavit, para.14; Transcript, pp.52, 53, 54 and 55.
Mr Rowe reported these incidents on a number of occasions to Core Drilling’s Head Office. He spoke to Head Office, specifically Mr Wegner, daily for between 15 Minutes and one hour, about crew performance on site, and says that he recalls phoning Mr Wegner approximately six times (or once a fortnight on average) to “specifically” discuss Mr Maslen’s performance.[27]
[27] See Mr Rowe’s Affidavit, para.15; Transcript, p.51.
Mr Rowe says that Ms Gurnell telephoned him on or about 23 September 2011 concerning Mr Maslen’s performance, and he told her that he “was not happy with Mr Maslen’s performance or behaviour on site.”[28]
[28] See Mr Rowe’s Affidavit, para.17.
On a number of occasions during cross-examination Mr Rowe was asked why things were not put in his affidavit. This was generally when Mr Rowe had provided a detailed response to a question based on the content of the affidavit. In the Court’s view cross-examination reinforced Mr Rowe’s credibility as he was able to provide express and more expansive answers under cross-examination, which answers were not inconsistent with his affidavit evidence.
Mr Butler, the other Rig Manager, gave evidence that:
a)on or about 16 September 2011 Mr Maslen failed to properly complete a pre-start check on a site truck, and that Mr Butler spoke to him about half-performing jobs;
b)on or about 19 September 2011 Mr Maslen was asked to check drilling rod stocks, but ignored Mr Butler, so another employee had to carry out that work;
c)the applicant drove the water truck away from where work was being performed when requested not to, including driving past the water stand pipe where the water was obtained from and which was visible from the work site, and work had to be shut down as the water was required for ongoing drilling operations;
d)about an hour later he found Mr Maslen driving back to site, and later informed Ms Gurnell of the incident because Mr Maslen had driven off without informing anyone where he was going, which was a health and safety breach;
e)he told Mr Maslen on a number of occasions not to use his mobile phone on site, as it was contrary to the head contractor’s policy;
f)from 18 August 2011 to 23 September 2011 he telephoned Ms Gurnell approximately four times to discuss Mr Maslen’s performance; and
g)on 19 September 2011 he telephoned Ms Gurnell to report that the Mr Maslen’s performance was poor, and that he had refused to clean the equipment, machinery and site in preparation for the next shift.[29]
[29] See Mr Butler’s Affidavit, paras.15-18; Transcript pp.63-69.
Mr Maslen by and large denied the allegations of poor performance levelled by Mr Rowe and Mr Butler. Mr Maslen’s evidence was testy and confused, and he did not impress as a person who either had a clear knowledge of his claim, a clear recollection of events on site, or, alternatively, he had a recollection which he had adjusted to suit the circumstances of his claim. Mr Rowe and Mr Butler by comparison were calm, straightforward in their responses, and struck the Court as “down-to-earth types”[30] whose evidence could be believed.
[30] Transcript, p.83.
In response to a request from Ms Gurnell during their 19 September 2011 telephone conversation Mr Butler forwarded to Ms Gurnell an email outlining his concerns about Mr Maslen’s work performance. The email was sent on 23 September 2011, and advised as follows:
Hi Lou, Rob
I wish to put forward some concerns on the work performance of Andrew Maslin. Recently on Barrick site Lawlers (fairyland operations) Andrew has repeatedly failed to complete tasks instructed to do supervised and unsupervised to the standard required for the day to day running operations of the rig. These include daily prestart checks on vehicles and rig and completing the prestart books without checking the equipment out properly or not at all. Presentation of core to the standard required repeatedly asked to present it in a professional manner, clean, assembled as best as possible in the trays clean trays and re washing of marks/grease on core, very little interest to none is taken in assisting the preparation of handover in a timely fashion ..cracking of rods, fuelling up, cleaning down of tools and vehicles, tidy up. Nearly all tasks done were at repeated requests and some were not done at all. Furthermore failed to notify the driller of his intention to use a vehicle (water truck used) driving off to an unknown destination for an unknown reason (not that there is an issue if it’s a known purpose). In a general view most common tasks were not complete adequately. There is little to no assistance to other crew members or cross shift and a lack of team player which has been noted by other crew and they have spoken to me about their issues with this. This is a very broad spectrum of our work load not completed in a timely manner to standards needed without supervision.
Yours Sincerely
Chris Butler.[31][31] Mr Butler’s Affidavit, Annexure CJB-1.
Cross-examination of Mr Butler did little more than have him confirm the accuracy of most of his affidavit evidence.
Much of the cross-examination of Mr Rowe and Mr Butler suggested a lack of warning of impending termination of Mr Maslen’s employment. That line of cross-examination ultimately did not assist with determining whether Mr Maslen was terminated for a prohibited reason; and nor did it, particularly given the tenor of the evidence of both Mr Rowe and Mr Butler, go anywhere near persuading the Court that the events that the two Rig managers complained about did not occur. The lack of any warning of impending termination of Mr Maslen’s employment might have been relevant if there were a procedural fairness issue in these proceedings, but there was not.
Ms Gurnell, Core Drilling’s Occupational Health and Safety Manager, gave evidence that it was her decision to terminate Mr Maslen, but that it was done in conjunction with the General Manager of Core Drilling, Mr Wegner, as Mr Wegner had the authority to terminate. Her evidence was that she and Mr Wegner had a 45 minute discussion and agreed that Mr Maslen’s employment ought to be terminated as his probationary period was about to expire, and she and Mr Wegner discussed complaints received by Ms Gurnell concerning Mr Maslen’s performance before deciding to terminate his employment.[32] Ultimately, Ms Gurnell wrote to Mr Maslen advising of the termination of his employment, in the following terms:
[32] See Ms Gurnell’s Affidavit, paras.16-18.
Dear Andrew
As you know you are on a three month probationary period with Core Drilling Services as per your contract of Employment dated 04/07/11. Your probationary period is due to end on 04/10/11
We regret to inform you that the feedback we have received from both Rig Mangers (sic) on site regarding your performance during the past three months has not reached the expectations that Core Drilling Services expect. Refusal to take direction from a Rig Manager and/or Senior Drill Assistants who are trying to teach you safe methods to complete tasks and also refusing to perform some task (sic) at all, as set out clearly in your contract of employment, is not acceptable.
As a result I must inform you that the Company will not be extending your period of employment after 28/09/11.
Regards
Lou GurnellOHS Manager[33][33] Ms Gurnell’s Affidavit, Annexure LJG-3.
Mr Maslen sought to make something of the fact that his letter of termination was sent 59 minutes after the receipt of Mr Butler’s email. In the Court’s view not much turns on this, as it is clear that there had been prior discussion on the day between Mr Wegner and Ms Gurnell concerning Mr Maslen’s possible termination,[34] and the actual timing of the sending of Mr Butler’s email does not matter greatly, as it merely confirmed matters which had been the subject of prior discussion between Ms Gurnell and Mr Butler, and was to similar effect to the tenor of discussions that Mr Rowe and Mr Wegner had been having concerning Mr Maslen’s work performance.
[34] Transcript, p.37.
Ms Gurnell denied that Mr Maslen’s employment was terminated for any reason other than the impending end of his probationary period considered in the light of his work performance, and repeated the denial when cross-examined.[35] Ms Gurnell detailed a series of reports from Mr Butler, and a report from a Mr Halliday, a Senior Drill Assistant in Mr Rowe’s team, concerning aspects of poor performance by Mr Maslen in his role as a Driller’s Assistant. Ms Gurnell said she did not have any conversations with Mr Rowe concerning Mr Maslen’s work performance.[36]
[35] See Ms Gurnell’s Affidavit, para.20; Transcript, pp.35, 42.
[36] Transcript, p.36.
Mr Wegner, Core Drilling’s General Manager, gave evidence that he had at least three discussions with Mr Rowe concerning Mr Maslen’s work performance:
a)in relation to his refusal to undertake cleaning tasks on or about 1 September 2011;
b)on 30 July 2011 in relation to his inconsistent performance and underperformance, and
c)on or about 1 August 2011 in relation to his only half performing tasks and walking away whilst being given instructions.[37]
[37] See Mr Wegner’s Affidavit, para.20.
Mr Wegner also said that he discussed daily with Ms Gurnell feedback from site from Mr Butler in relation to the issues referred to by Mr Butler and set out above.[38]
[38] See para.25 above.
Mr Wegner gave evidence that:
a)it was his decision to terminate Mr Maslen’s employment, and that it was made following discussions with Ms Gurnell on 23 September 2011 concerning the feedback from the Rig Managers, Messrs Rowe and Butler, and based on that feedback and his experience in drilling; and
b)Mr Maslen’s queries concerning training, leave and payment had no impact on the decision to terminate Mr Maslen’s employment.[39]
[39] See Mr Wegner’s Affidavit, paras.16, 17 and 23.
It is significant that Mr Wegner was not cross-examined on the basis for his decision to terminate Mr Maslen’s employment. That is significant because, on the evidence, he was the ultimate decision-maker. Mr Wegner’s reasons for that decision must therefore be accepted, there being no other basis for impeaching that evidence.
Having regard to Mr Wegner’s unchallenged evidence as to his reasons for making the decision to terminate Mr Maslen’s employment the general protections claim must fail, as that evidence discharges the onus under s.361 of the FW Act, and otherwise stands unchallenged as the basis for the termination of Mr Maslen’s employment. In any event, the evidence of the other witnesses for Core Drilling demonstrates that there were ongoing performance issues in relation to Mr Maslen’s employment, and that it was those performance issues which resulted in his termination, not his complaints or enquiries about his workplace rights.
In all the above circumstances Mr Maslen’s general protections claim fails.
Award Breach Claim
The issue regarding the Award Breach Claim involves differences between the parties in respect of the interpretation of certain provisions of the Award and the way in which the relevant working arrangements are categorised for the purposes of applying the Award.
Mr Maslen submitted that:
a)Core Drilling operated a roster system in respect of which Mr Maslen was required to work two weeks on site followed by one week of no work off site. Mr Maslen worked one roster of 19 days on site followed by eight days off site, one roster of 14 days on site followed by eight days off site, and one roster of nine days on site followed by eight days off site and one roster of eight days on site followed by termination while on site;
b)Mr Maslen regularly worked 12 hour day and night shifts while on site and worked them on Saturdays and Sundays as well as week days;
c)Mr Maslen was paid:
i)$4,250 gross for the work performed on 17 12 hour shifts during the first roster period;
ii)$3,250 gross for the work performed on 13 12 hour shifts in the second roster period;
iii)$2,187.50 gross for the work performed on eight 12 hour shifts and one nine hour shift in the third roster period; and
iv)$2,000 gross for the work performed on eight 12 hour shifts in the fourth roster period;
d)Core Drilling paid Mr Maslen $250 per day in satisfaction of Mr Maslen’s right to payment of all allowances such as overtime, weekend rates, public holiday shift penalties, disability and first aid allowances, night shift and travel time for work on site;
e)Core Drilling, at its discretion, paid Mr Maslen a shift bonus of $50 for shifts where Mr Maslen’s name appeared on the drill report to indicate that he was on shift;
f)Core Drilling paid Mr Maslen a rate of $20.83 per hour for the time that Mr Maslen spent travelling to and from the workplace at the beginning and end of each roster period;
g)Ms Gurnell on behalf of Core Drilling paid to Mr Maslen on 30 September 2011 $750 gross by way of “back pay” and $666.56 gross by way of payment for attendance at the induction and training days in July and September 2011;
h)the total amount paid to Mr Maslen by Core Drilling for each shift worked at each roster period was $1,865.90 less than the total amounts prescribed by the Award for an employee of Mr Maslen’s classification who worked those shifts;
i)Core Drilling paid Mr Maslen $1,250 gross by way of payment in lieu of notice of termination of employment;
j)the period of notice of termination given to Mr Maslen was less than the period of notice specified by the Award;
k)the amount paid to Mr Maslen by Core Drilling by way of payment in lieu of notice of termination of employment was $1,210.02 less than the amount prescribed by the Award and the National Employment Standards under the FW Act;
l)a global sum of money paid to a creditor in satisfaction of several debts made, before or at the time of payment, may be apportioned by the debtor to any or all of the debts owed;
m)the payment of wages, overtime and allowances by an employer to an employee is the payment of several debts by a debtor to a creditor;
n)Core Drilling apportioned the $250 per day agreed rate of pay as consideration for all aspects of working at site operations and incorporating all allowances such as overtime, weekend rates, public holiday shift penalties, disability and first aid allowances, night shift and travel time for work on site;
o)properly construed, the term “all aspects and all allowances” as used in the contract, mean all obligations, howsoever derived, that Core Drilling had, to make payments to Mr Maslen for work performed on site and not elsewhere;
p)the Award applied to Mr Maslen’s employment. Work on site by Mr Maslen at particular times caused Core Drilling to become separately indebted to Mr Maslen in respect of, amongst other things, obligations relating to wages for ordinary time, weekend penalty rates, night shift loadings and overtime arising under the Award;
q)if the $250 per day rate paid to Mr Maslen was less than the obligations imposed on Mr Maslen by the Award for the work performed on any day, then Core Drilling has contravened one or more terms of the Award;
r)where a roster system as contemplated by clause 17.4 of the Award is operating, the calculation of overtime payments due in accordance with clauses 17.4(a) and 19.2 of the Award cannot be done until a period worked on site in accordance with clause 17.4(b) is completed;
s)the $250 per day payments made by Core Drilling to Mr Maslen were less than the total amounts due under the Award for work on site in the roster periods;
t)an overpayment in one roster period may not be set-off against an underpayment in another roster period unless specific provision is made for it to occur, and in this case, no such provision was made;
u)the $50 shift bonus paid to Mr Maslen entirely at the discretion of Core Drilling for each shift the applicant’s name appeared on the drill report was not paid in consideration of work performed on the shift, or any obligations arising under the Award, and may not be set-off against any such obligation;
v)the time spent by Mr Maslen travelling to and from the remote site and Perth is not time on duty and not a period of paid leave under the Award, and any payments made by Core Drilling in respect of such travelling time are not payments made in respect of an Award obligation, and may not be set-off against such obligations;
w)where notice of termination of employment is given on one day and the party to whom the notice is given receives it on a subsequent day, the period of notice does not commence until the notice is received; and
x)where payment in lieu of notice is made in accordance with s.117(2)(b) of the FW Act the full rate of pay for the hours Mr Maslen would have worked had the employment continued until the end of the minimum period of notice is to be calculated in accordance with clauses 17.4(a) and 19.2 of the Award.
The respondents submit that:
a)the amount Mr Maslen alleges is owing as a result of the Award Breach Claim in his affidavit, affirmed 6 July 2012, is different to the amounts calculated by him in Annexure B to his affidavits;
b)the current claim is also significantly less than the claim which was originally formulated by Mr Maslen’s then representative, Mr McCorry of Labour Industrial & Workplace Relations Consulting,[40] in an email dated 27 November 2011, which is Annexure MB-5 to the affidavit of Megha Bhandari sworn on 26 July 2012;
c)Core Drilling asserts that it owes Mr Maslen an amount of $123.55, and has tendered its calculations of the amount payable to Mr Maslen in full satisfaction of his claims;
d)the key issues which separate the parties in respect of the Award Breach Claim can be summarised as follows:
[40] “LIWRC”.
i)clause 17.4 of the Award sets out special arrangements which apply with respect to those employees who are required to undertake a work cycle. That term is defined in clause 3.1 to mean a ‘roster cycle made up of working and non-working days’. The effect of clause 17.4(a) is to permit the employer to average the 38 ordinary hours prescribed by the Award (in clause 17.1) over the whole of the work cycle;
ii)Mr Maslen appears to contend that clause 17.4 of the Award has no application to his period of employment, but Core Drilling contends that it does apply because Mr Maslen was required to work on a cycle made up of working and non-working days. Specifically, Core Drilling refers to the paragraph headed “Rosters” in the applicant’s contract of employment, which relevantly provides as follows:
The company currently operates a 4 week on 2 week off work roster. You will be paid a maximum of 6 hours travel on the day you fly in regardless of the total hours. You will not be paid on the day you fly out. The 2 weeks off equates to 12 full days of R & R plus 1 day travel to and 1 day travel from site. You are expected to work 28 full days on the rig.
This work roster can be altered at The Company’s discretion as required.
iii)importantly, the Award definition requires only that the cycle includes working and non-working days, and does not require that the number of working and non-working days is identical in each and every cycle; and
iv)the application of clause 17.4(a) of the Award to the calculations accounts for the majority of the difference between the respective parties’ calculations;
e)the parties appear to agree that the appropriate classification under the Award is the entry level introductory category classification set in clause 13.1(a) of the Award;
f)at clause 21.1 of the Award provision is made for meal breaks. The applicant alleges that he was not afforded a meal break at all, and so alleges a breach of the Award in this respect on every day that he worked. Mr Rowe and Mr Butler each say that he received a meal break on every shift. The respondents asserts that in any event no monies are claimed by Mr Maslen as a result of this alleged breach;
g)the applicant contends that two amounts which he admits receiving cannot be taken into account in calculating the Award requirements. Those amounts are a $50 per day flat payment received for each day in which he worked, and the payments he received on days he travelled to and from the remote sites at which he worked. Core Drilling contends that Mr Maslen erroneously treats the daily payment as a discretionary payment under his contract of employment. As he had not finished his probationary period this was not a discretionary bonus payment but a payment made simply on account of the performance by him of his work.[41] Accordingly, the amount can be off-set. It is not clear why Mr Maslen does not off-set the amounts he was paid for the days he travelled to and from the remote sites at which he was working. Core Drilling contends that on any analysis these amounts can be off-set;
h)the parties have utilised the transitional provisions outlined in Schedule A of the Award to prepare calculations in respect of the Award Breach Claim. Schedule A provides that the applicable wages and penalties payable to an employee are calculated by comparing the difference in the minimum wages (monetary value) and penalties (as a percentage rate) payable under the Award and a pre modern award that would otherwise have applied to Mr Maslen’s employment prior to 1 January 2010. A portion of that difference is then added or subtracted from the minimum wages or penalties payable under the Award depending on whether the Award entitlements are higher or lower than the pre-modern award entitlements. Alternatively, if a pre-modern award did not apply to Mr Maslen’s employment prior to 1 January 2010, only a portion of the penalties in the Award are paid pursuant to Schedule A, while the minimum wages in the Award are paid. There are distinct differences in the way the parties have treated the transitional provisions. Mr Maslen’s calculations refer to the AWU Gold (Mining and Processing) Award[42] as he contends that this award would have applied to his employment prior to 1 January 2010. Core Drilling contends that the pre-modern award would not have applied to Mr Maslen prior to 1 January 2010 as his position did not fall within the classification definitions in clause 15 of the AWU Gold Award; and
i)Mr Maslen’s calculation of the alleged Award Breach Claim compares Saturday and Sunday penalties and the night shift penalty under the pre-modern award against the equivalent entitlements under the Award. For example, the pre-modern award and the Award both provided a Sunday penalty rate of 100 percent. Given there is no difference between these percentages Mr Maslen’s calculations include a 100 percent penalty for work performed on a Sunday. Core Drilling has calculated the applicant’s wages by applying the method outlined in the transitional provisions to the penalties in the Award. For example, on or from the first full pay period on or after 1 July 2012 the applicant was entitled to 40 percent of the value of the Sunday penalty in the Award, being 100 percent. Accordingly, Core Drilling applied a 40 percent penalty for work performed on a Sunday. Core Drilling adopted this method in calculating the Saturday penalty and night shift penalty payable under the Award.
[41] See Ms Gurnell’s Affidavit, para.7.
[42] “AWU Gold Award”.
In reply, Mr Maslen submits that:
a)Core Drilling admits that Mr Maslen was not paid all his entitlements under the Award. The only dispute between the parties on this issue is quantum;
b)whether or not the Award was contravened is not determined by the amount of the underpayment. The admission that Mr Maslen was not paid all his entitlements under the Award is an admission that Core Drilling contravened the Award;
c)Ms Gurnell had knowledge of the essential facts constituting the contravention and was an intentional participant in it, the necessary intent being based on knowledge of the essential elements of the contravention. Ms Gurnell admits the knowledge, therefore, Ms Gurnell was knowingly involved in the contravention; and
d)the term or terms of the Award that were contravened are those asserted by Mr Maslen, namely being paid less than the minimum amounts provided for in the Award for work done and failing to be paid the correct amount of pay in lieu of notice.
Legislative and Award provisions – Award Breach Claim
Clause 17 – Ordinary hours of work of the Award provides as follows:
17.1A full-time employee’s ordinary hours of work will be an average of 38 hours per week. The ordinary hours of part-time and casual employees will be in accordance with clause 10 – Types of employment.
17.4Notwithstanding any other provision of this award, the following arrangements apply to employees who are required to undertake a work cycle:
(a)Employees may be engaged to work on a work cycle made up of working and non-working days. The total ordinary hours of work during a work cycle must not exceed 38 hours multiplied by the total number of working (on-duty period) and non-working (off-duty period) days in the cycle divided by seven.
(b)The on-duty period commences at the time the employee reports to the point designated by the employer for commencement of work at the workplace. The off-duty period commences at the conclusion of the employee’s last rostered shift.
Other relevant provisions of the Award are as follows:
a)clause 3.1 which defines, amongst other definitions, “work cycle” to mean “a roster cycle made up of working and non-working days”, “unless the contrary intention appears”;
b)clause 3.2 of the Award provides that where the Award refers to a condition of employment provided for in the National Employment Standards,[43] the NES definition applies;
[43] “NES”.
c)clause 13.1(a) which sets out the minimum weekly rate of pay for the classifications under the Award, and relevantly provides that:
(a)A full-time adult employee must be paid a minimum weekly rate for their classification as set out in the table below:
and then proceeds to define an Entry Level Introductory classification with a minimum weekly rate. It is not in dispute that that is the appropriate classification for Mr Maslen;
d)clause 19.2 which provides that continuous shiftworkers are to be paid overtime, in the following terms:
A continuous shiftworker will be paid an additional payment for all work done in addition to ordinary hours of 100% of the ordinary hourly base rate of pay.
e)clause 21 which provides for meal breaks and rest breaks in clause 21.1 as follows:
(b)A shiftworker working 10 hours or less will be entitled to a paid meal break of 20 minutes per shift.
(c)A shiftworker working for longer than 10 hours will be entitled to paid meal breaks totalling 40 minutes per shift.
(d)Breaks will be scheduled by the employee’s supervisor based upon operational requirements so as to ensure continuity of operations. The employer will not require an employee to work more than five hours before the first meal is taken or between subsequent meal breaks if any.
f)section 117(2)(b) of the FW Act provides for the amount of payment in lieu of notice where an amount of notice is not given, in the following terms:
(b)the employer has paid to the employee (or to another person on the employee’s behalf) payment in lieu of notice of at least the amount the employer would have been liable to pay to the employee (or to another person on the employee’s behalf) at the full rate of pay for the hours the employee would have worked had the employment continued until the end of the minimum period of notice.
g)the “employer must not terminate the employee’s employment duties unless” the above payment in lieu of notice has been paid: s.117(2), FW Act. The relevant period of notice, and therefore payment in lieu of notice, for Mr Maslen, he being an employee of not more than one year’s service, is one week: s.117(3)(a), Item 1, FW Act.
Consideration - Award Breach Claim
The “work cycle” on which Mr Maslen was engaged was a work cycle comprised of two weeks of working days and one week of non-working days. It is significant that the definition of “work cycle” does not equate the work cycle with the on duty or off duty periods referred to in clause 17.4(b) of the Award. The intent of the provisions of clause 17.4 appear to be that there be a work cycle comprising of working and non-working days, and that that may be different to the on duty and off duty periods that an employee actually works. The concept of a “cycle” denotes more than one occurrence, a “cycle” being a “recurrent period”.[44] Significantly, the Award does not provide for the payment of any travelling allowance.[45] Likewise, it makes no provision, specifically, with respect to the payment of travel time to and from work, or to and from a point of engagement to a remote location.
[44] The Concise Oxford Dictionary of Current English, (7th Edn) (Oxford: Clarendon Press, 1984), p.236.
[45] See cl.14 of the Award.
The Award clearly contemplates that employees will be engaged in “remote work”, defining that to mean any work “required to be performed in the location that is operated by the employer as a remote location, including but limited to the sites operating of a fly-in/fly-out, drive-in/drive-out or bus-in/bus out basis.”[46]
[46] Clause 3.1 of the Award.
There was no specific evidence with respect to “the point designated by the employer for commencement of work at the workplace”.[47]
[47] Clause 17.4(b) of the Award.
The point designated by Core Drilling for the commencement of work at the workplace can however be inferred from the rosters clause in the contract of employment[48] which prescribes that Mr Maslen was expected to work, in the context of a two week on, one week off roster, 14 full days on the rig. Mr Maslen’s on-duty period, that is his working period, therefore commenced when he commenced work on the rig. The non-working or off-duty period of seven days commenced when he ceased work on his last rostered shift on the rig.
[48] Set out at para.41(d)(ii) above.
That interpretation sits comfortably with the notion of a work cycle of two weeks on and one week off, with the on-duty period commencing at the commencement of work at the workplace, which in this case it is clear the parties intended be the rig, and not some earlier point in time, such as when the flight was boarded. The six hour payment for the flight time was a contractual over-Award entitlement specifically for that purpose.
The next issue to be determined is whether or not the AWU Gold Award had any operation as an award applicable to a driller’s assistant prior to the operation of the Award. The application of the AWU Gold Award was not proven, as the AWU Gold Award was not tendered in evidence by any of the parties. As such, the Court is not in a position to make any findings with respect to the applicability or otherwise of the AWU Gold Award on the evidence before it.
The next issue which arises is whether or not any underpayment can be off-set against the $50 discretionary shift bonus. The express terms of Mr Maslen’s contract did not entitle him to this bonus until he completed his probationary period, which he never did.
There was unchallenged evidence from Ms Gurnell that the $50 shift bonus payment shown on Mr Maslen’s payslips, was paid, not as the shift bonus referred to in the contract of employment, but as a means of attracting and retaining staff. Thus, it was, to use Ms Gurnell’s words “paid merely as a consideration for services rendered by the applicant”.[49]
[49] Ms Gurnell’s Affidavit, para.7.
That evidence is consistent with the evidence that the $50 was paid irrespective of whether or not Mr Maslen worked shifts on the rig.
In the circumstances, Ms Gurnell’s evidence must be accepted as she was not cross-examined on it, and in any event, it is consistent with the fact that the $50 was paid on occasions when shifts were not worked. That means that the payment was not for a particular designated purpose or event.
It is well settled that an over-award payment cannot be used to satisfy liability for another award entitlement unless the parties have specifically agreed that the over-award payment is made in respect of that entitlement.[50] In the circumstances of this case, it does appear that the $50 which has been paid has been paid generally, and not in respect of any particular Award entitlement, other than ordinary wages. In those circumstances, the Court is of the view that the $50 payment, where made, may be off-set against any underpayment of ordinary time wages. It cannot however, be off-set against any underpayment of entitlements other than ordinary hours’ payments.[51]
[50] Poletti v Ecob (No. 2) (1989) 91 ALR 381 at 393 per Keely, Ryan and Gray JJ ; Australian and New Zealand Banking Group Ltd v Finance Sector Union of Australia (2001) 111 IR 227 at 238-239 per Black CJ, Wilcox and von Doussa JJ; [2001] FCA 1785 at paras.48-50 per Black CJ, Wilcox and von Doussa JJ (“ANZ Banking Group”).
[51] ANZ Banking Group IR at 240 per Black CJ, Wilcox and von Doussa JJ; FCA at para.59 per Black CJ, Wilcox and von Doussa JJ.
The position is different with respect to the set-off of the payments for the flight time to and from site. That was a contractual entitlement for a specific purpose, and in the Court’s view, cannot be off-set against any underpayment under the Award. It was no mere over-Award payment, but rather a payment for a specific purpose, in circumstances where the employees would not otherwise receive any money, for the not inconsiderable time spent flying to and from site.
There was an argument by Mr Maslen that notice was not given until he received it, that is by opening the email that was sent to him, however, it appears to the Court that the notice was given by Core Drilling at the time it was sent by email, and received by Mr Maslen at the time that it went into his email inbox, which for practical purposes was simultaneously. The contrary argument leads to a situation where notice might never be given if a person is astute enough to not open their email inbox, and the usual rule that notice is taken to be given at the time the notice would ordinarily be delivered is preferable in this case. The time at which the notice would ordinarily be delivered here is virtually simultaneously with the time at which it was sent.
With respect to meal breaks, as with other evidence, the Court prefers the evidence of Mr Rowe and Mr Butler that meal breaks were taken on site, to the evidence of Mr Maslen that he did not take a meal break on any of the 48 shifts that he worked. In those circumstances, and on the basis of the evidence which the Court prefers, the claim insofar as it relates to meal breaks, and any impact of the failure to take a meal break, must fail.
Because clause 11.1 of the Award provides that notice of termination is provided for in the NES, the period of notice that was required to be paid by the Award, or the period of notice which is required to be given, was one week.
The period of notice given in the Termination Letter in this case was five days. One week, in ordinary parlance, is seven days. It follows that Core Drilling contravened s.117(2) of the FW Act and clause 11.1 of the Award by failing to provide one week’s notice on termination of employment, or pay in lieu thereof.
There is no dispute that Core Drilling failed to pay Mr Maslen for four days of training attended on 11 and 12 July 2011 and 8 and 13 September 2011 and thereby contravened clauses 13.1(a) and 15 of the Award.
The Court notes that this failure to pay with respect to training days was rectified by Core Drilling on or about 30 September 2011.
With respect to the Award Breach Claim the conclusions reached by the Court mean that with respect to the notice of termination and non-payment of training days claims it is possible to make a declaration of contravention. However, with respect to the major part of the alleged breach, because the Court’s findings do not coincide precisely with the contentions of either Mr Maslen or Core Drilling, and because the Court’s findings will require the re-calculation of any alleged underpayment, the Court will not at this stage make a declaration with respect to the Award Breach Claim, but adjourn the matter to determine what, in the absence of agreement between the parties, declarations and orders with respect to payment and interest ought to be made. The parties will be directed to confer with a view to reaching agreement on the matter, and in the absence of agreement be required to file schedules of alleged underpayment, if any.
Deductions Claim
Mr Maslen submits that:
a)Ms Gurnell on behalf of Core Drilling deducted from Mr Maslen’s pay on 29 September 2011 the amount of $879.32 in respect of the cost of uniforms supplied to Mr Maslen, and the cost of the airfare to transport Mr Maslen from the mine site to Perth on termination of his employment. Ms Gurnell, on behalf of Core Drilling, on 30 September 2011 paid Mr Maslen $879.32 as reimbursement of the deductions made on 29 September 2011;
b)Core Drilling was only permitted to make deductions from Mr Maslen’s pay if the deduction was principally for the benefit of Mr Maslen, and authorised by the Award or otherwise by law. The deductions from Mr Maslen’s pay made by Core Drilling were not principally for the benefit of Mr Maslen, and were not authorised by the Award or otherwise by law; and
c)Core Drilling’s deductions from Mr Maslen’s pay were contrary to s.323(1) of the FW Act;
Core Drilling submits that:
a)Core Drilling made two deductions from Mr Maslen’s wages paid on 29 September 2011 on account of his:
i)uniform allowance; and
ii)the cost of his flight from site to Perth;
b)Core Drilling was entitled to make the deduction for the uniform allowance as it is a term of the contract of employment; and
c)similarly the contract of employment allows Core Drilling to make deductions for the cost of Mr Maslen’s flights;
d)therefore, these deductions are authorised deductions; and
e)in any event, nothing ought to turn upon this mater as Core Drilling reimbursed Mr Maslen for these amounts on 30 September 2011.
In reply, Mr Maslen submits that:
a)Core Drilling asserts a contractual entitlement to withhold monies from Mr Maslen’s final pay, relying on the express terms of the written contract of employment between Mr Maslen and Core Drilling relating to uniforms and flights to and from the job site;
b)the contract of employment makes no such provision. The contract of employment only provides an entitlement for Core Drilling to deduct monies from Mr Maslen’s pay for travel costs to site if Mr Maslen terminated his employment without giving appropriate notice;
c)the contract of employment also only provided for the deduction of uniform costs from Mr Maslen’s pay if Mr Maslen terminated his employment without notice or during the probationary period. If Core Drilling terminated the employment, Mr Maslen is not liable for the costs of the uniform, which then is not a right to deduct the costs from any payments due to him;
d)the terms of the contract of employment also have no effect by operation of s.326 of the FW Act and reg.2.12 of the Fair Work Regulations 2009 (Cth)[52] because the deduction terms in the contract of employment are directly or indirectly for the benefit of Core Drilling and unreasonable in the circumstances; and
e)the fact that Mr Maslen was reimbursed the amounts withheld after the termination of his employment and only after he raised the issue with Ms Gurnell does not make the withholding of the amounts any the less unlawful and something which “nothing ought to turn upon”. This was not an inadvertent error of calculation by the respondents but a deliberate act that was not permitted by the contract of employment.
[52] “Fair Work Regulations”.
Legislative and contractual provisions – Deductions Claim
Section 326(1) and (2) of the FW Act provide as follows:
(1) A term of a modern award, an enterprise agreement or a contract of employment has no effect to the extent that the term:
(a) permits, or has the effect of permitting, an employer to deduct an amount from an amount that is payable to an employee in relation to the performance of work; or
(b) requires, or has the effect of requiring, an employee to make a payment to an employer or another person;
if either of the following apply:
(c) the deduction or payment is:
(i) directly or indirectly for the benefit of the employer, or a party related to the employer; and
(ii) unreasonable in the circumstances;
(d) if the employee is under 18--the deduction or payment is not agreed to in writing by a parent or guardian of the employee.
(2) The regulations may prescribe circumstances in which a deduction or payment referred to in subsection (1) is or is not reasonable.
Unreasonable requirements to spend an amount
Regulation 2.12 of the FW Regulations provides as follows:
(1) For subsection 326(2) of the Act, a circumstance in which a deduction mentioned in subsection 326(1) of the Act is reasonable is that:
(a) the deduction is made in respect of the provision of goods or services:
(i) by an employer, or a party related to the employer; and
(ii) to an employee; and
(b) the goods or services are provided in the ordinary course of the business of the employer or related party; and
(c) the goods or services are provided to members of the general public on:
(i) the same terms and conditions as those on which the goods or services were provided to the employee; or
(ii) on terms and conditions that are not more favourable to the members of the general public.
Section 323 of the FW Act provides as follows:
(1) An employer must pay an employee amounts payable to the employee in relation to the performance of work:
(a) in full (except as provided by section 324); and
(b) in money by one, or a combination, of the methods referred to in subsection (2); and
(c) at least monthly.
(2) The methods are as follows:
(a) cash;
(b) cheque, money order, postal order or similar order, payable to the employee;
(c) the use of an electronic funds transfer system to credit an account held by the employee;
(d) a method authorised under a modern award or an enterprise agreement.
(3) Despite paragraph (1)(b), if a modern award or an enterprise agreement specifies a particular method by which the money must be paid, then the employer must pay the money by that method.
Mr Maslen’s contract of employment provided as follows:
a)with respect to travel costs:
In the event you terminate employment without appropriate notice being given, payment of travel costs to site incurred by The Company will be deducted from monies owing.
b)with respect to uniforms:
All new employees will have the cost of their uniform deducted from their wages if they terminate employment before the 3 month probationary period is completed.
and
If The Company terminates your employment during the probationary period you shall be liable for the cost of the uniform.
Consideration - Deductions Claim
Section 323 of the FW Act refers to amounts payable to the employee “in money”, and methods by which “money must be paid” and is directed to payments made in money, not in money’s worth or the equivalent of money.[53] It requires payment of an employee “in full” for amounts payable “in relation to the performance of work”. The payments deducted were in relation to payments in relation to the performance of work.
[53] See Construction, Forestry, Mining and Energy Union v Mammoet Australia Pty Ltd (2011) 254 FLR 59 at 80-81 per Lucev FM; [2011] FMCA 802 per Lucev FM, the judgment in which was upheld on appeal: see Construction, Forestry, Mining and Energy Unionv Mammoet Australia Pty Ltd (2012) 206 FCR 135; [2012] FCA 850; but in respect of which special leave to appeal to the High Court has now been granted: Construction, Forestry, Mining & Energy Unionv Mammoet Australia Pty Ltd [2013] HCATrans 79.
It is clear from the terms of the contract of employment that it draws a distinction between situations where the employee terminates employment, generally designated by the use of words such as “you terminate employment” as appears in relation to the flight costs clause above, and situations where Core Drilling terminates employment in which case the contract of employment refers to “The Company” terminating employment: see, for example the Termination of Employment clause which speaks of “Employment may be terminated by The Company giving notice …”.
Mr Maslen did not terminate his employment, either with or without appropriate notice, for the purposes of the flight costs clause. Mr Maslen’s employment was terminated by Core Drilling. In those circumstances Core Drilling had no entitlement to deduct the cost of flights from Mr Maslen’s wages, and it follows that in doing so, there was a contravention of s.323(1)(a) of the FW Act which requires that an employer must pay an employee amounts payable to the employee in relation to the performance of work “in full”.
In relation to the uniform deductions it is apparent that the contract on its face provides for an employee whose employment terminates, whether by the employee terminating or Core Drilling terminating, for the cost of the uniform to be an expense to the employee.
However, the relevant provisions are slightly differently worded. The clause which provides for the cost of an employee’s uniform to be deducted from their wages is applicable if the employee terminates before the three month probationary period is completed. That was not this case for reasons explained above. By contrast, where Core Drilling terminates the contract does not provide for a right to deduct the cost of the uniform from wages, but merely provides that the employee is “liable for the cost of the uniform.” This gives Core Drilling the right to recover the cost of the uniform, but does not give the right to deduct the cost of the uniform from wages. That that is the correct interpretation of the latter clause is confirmed by the provisions of the former clause expressly providing for such deductions. It also accords with the plain meaning of the latter clause.
In the circumstances, therefore, Core Drilling had no entitlement upon its terminating Mr Maslen’s employment during the probationary period to deduct the cost of his uniform from his wages. In the circumstances, the deduction of the cost of the uniform from Mr Maslen’s wages was a contravention of s.323(1)(a) of the FW Act.
It follows that there will be a declaration that Core Drilling contravened s.323(1)(a) of the FW Act by deducting $879.32 from Mr Maslen’s wages on 29 September 2011.
The Court notes that the deduction was reimbursed to Mr Maslen by Core Drilling the next day. Notwithstanding that there was still a contravention of s.323(1)(a) of the FW Act, and the speed with which the contravention was corrected, and the other surrounding circumstances, will be matters going to the imposition of penalty.
Because the deductions were not authorised, no issue requiring determination arises under s.326 of the FW Act.
Personal Liability Claim
In relation to Ms Gurnell’s involvement in the various matters Mr Maslen submits as follows:
a)Ms Gurnell knew that Mr Maslen had attended the induction and training sessions, and she refused to pay or authorise the payment to Mr Maslen for attending the induction and training sessions;
b)Ms Gurnell knew Mr Maslen had made inquiry about Defence service leave, and on behalf of Core Drilling, told Mr Maslen he could not have that leave;
c)Ms Gurnell admits that she participated in the acts that are alleged to constitute a denial of workplace rights, and the termination of Mr Maslen’s employment; and
d)further, Ms Gurnell:
i)knew the days and hours worked on site by Mr Maslen;
ii)determined the amounts to be paid to Mr Maslen for the work performed during each pay period;
iii)knew the amounts paid to Mr Maslen for each pay period;
iv)determined the amounts to be deducted from Mr Maslen’s final pay;
v)knew the amounts were deducted from Mr Maslen’s final pay; and
vi)reimbursed Mr Maslen, or caused him to be reimbursed, for the deductions after seeking advice.
Ms Gurnell denies that she has knowingly been involved in any contravention of the FW Act, and submits that:
a)if the rationale apparently advanced by Mr Maslen was to be accepted, then every individual, through which a corporation acts, would be personally liable in every case where a corporation was found to be in breach of a civil remedy provision;
b)as corporations necessarily act through natural persons, that would be the effect of accepting the applicant’s contentions. That is not how s.550 of the FW Act and its predecessors have been interpreted;
c)if Mr Maslen’s contentions were accepted then Mr Wegner, in the case of the General Protection Claims, would also be liable, and in the case of the Award Breach Claim (specifically relating to meal breaks) so would Mr Rowe and Mr Butler. That would be an extraordinary result and certainly not the intention of the legislature; and
d)in any event, Core Drilling urges the Court to dismiss the claims in their entirety. If this is the order that is made then the Personal Liability Claim does not fall for determination.
Legislative provision - Personal Liability Claim
Section 550 of the FW Act provides as follows:
(1) A person who is involved in a contravention of a civil remedy provision is taken to have contravened that provision.
(2) A person is involved in a contravention of a civil remedy provision if, and only if, the person:
(a) has aided, abetted, counselled or procured the contravention; or
(b) has induced the contravention, whether by threats or promises or otherwise; or
(c) has been in any way, by act or omission, directly or indirectly, knowingly concerned in or party to the contravention; or
(d) has conspired with others to effect the contravention.
Consideration – Personal Liability Claim
Section 550 of the FW Act provides for accessorial liability for a breach of civil remedy provisions. Sections 340 and 352 of the FW Act are civil remedy provisions. Section 550 of the FW Act provides that involvement in a contravention of the FW Act shall be treated in the same way as an actual contravention.
The relevant principle in federal civil litigation in relation to legislative provisions such as s.550 of the FW Act is derived from the High Court’s judgment in Yorke & Anor v Lucas (1985) 158 CLR 661 (“Yorke”), and the numerous cases which have followed that judgment, which indicate that to be liable a putative accessory must intentionally participate in a contravention, and that to form the requisite intent the putative accessory must have knowledge of the essential matters going to make up the contravention, whether or not the putative accessory knows that those matters amount to a contravention. Necessary intent will be absent if the putative accessory does not know or believe that the assistance or encouragement given is something which goes to make up the facts which constitute the contravention. The principle as it applies in federal civil litigation has its origins in the criminal law: Yorke at 676 per Brennan J; Giorgianni v The Queen (1985) 156 CLR 473 at 506 per Wilson, Deane and Dawson JJ, and one of its early federal legislative manifestations is in s.75B of the Trade Practices Act 1974 (Cth). The principles concerning accessorial liability under federal workplace relations legislation are further expounded in Construction, Forestry, Mining and Energy Union v Clarke,[54] where the Full Court of the Federal Court observed that:
Regardless of the precise words of the accessorial provision, such liability depends upon the accessory associating himself or herself with the contravening conduct – the accessory should be linked in purpose with the perpetrators (per Gibbs CJ in Giorgianni v The Queen (1985) 156 CLR 473 at 479-480; see also Mason J at 493 and Wilson, Deane and Dawson JJ at 500). The words “party to, or concerned in” reflect that concept. The accessory must be implicated or involved in the contravention (Ashbury v Reid [1961] WAR 49 at 51; R v Tannous (1987) 10 NSWLR 303 per Lee J at 307E- 308D (agreed with by Street CJ at 304 and Finlay J at 310)) or, as put by Kenny J in Emwest Products Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (2002) 117 FCR 588; 112 IR 388 at [34], must participate in, or assent to, the contravention.[55]
[54] (2007) 164 IR 299; [2007] FCAFC 87 (“Clarke”).
[55] Clarke IR at 308 per Tamberlin, Gyles and Gilmour JJ; FCAFC at para.26 per Tamberlin, Gyles and Gilmour JJ.
Provisions in relation to accessorial liability are designed to ensure that persons involved in contravening conduct, often directors or very senior employees of corporations, are held liable for their conduct insofar as it resulted in a contravention of the relevant legislation. Further, they also ensure that liability is able to be imposed on persons involved in the contravening conduct in circumstances where a company has, for example, become insolvent or been deregistered, and no penalty would otherwise be recoverable.
In relation to the contravention found with respect to the Deductions Claim the evidence establishes that it was Ms Gurnell who caused the deductions to be made from Mr Maslen’s payment on 29 September 2011, and it was also she who reimbursed Mr Maslen for those same costs deductions on 30 September 2011.[56] The former was seemingly done on Ms Gurnell’s own initiative, based on her understanding of the relevant provisions of the contract of employment and the Award (which has no effect in relation to these provisions).[57] The decision to reimburse the deductions made was made following the obtaining of advice from the Chamber of Commerce and Industry.[58]
[56] Ms Gurnell’s Affidavit, para.41.
[57] Transcript, pp.42-45.
[58] Ms Gurnell’s Affidavit, para.41.
Ms Gurnell was a senior managerial employee at Core Drilling at the time that the deductions were made, and it was she who authorised both the deductions, and their subsequent reimbursement. Ms Gurnell discussed the deductions with Mr Wegner.[59] In the circumstances, she was a person involved in the contravening conduct, and had knowledge of the essential matters going to make up the contravention, and knew the effect of that conduct in relation to it resulting in a deduction from the wages of Mr Maslen. In those circumstances she was a person involved in the contravention of a civil remedy provision and is taken to have contravened that provision, in that she has been by her acts directly and knowingly concerned in or a party to the contravention for the purposes of s.550(2)(c) of the FW Act.
[59] Transcript, p.45.
There will therefore be a declaration that Ms Gurnell is liable for the contraventions in relation to the Deductions Claim.
Likewise, Ms Gurnell was involved in the contraventions with respect to the non-payment for training days, and there will be a declaration accordingly.
The Court is not satisfied that Ms Gurnell was involved in the relevant sense in any underpayment, if that ultimately be the case, with respect to the Award Breach Claim. There was no evidence that the underpayments in that regard were anything other than the outcome of Core Drilling’s usual payroll processes, and there was no particular evidence, as to Ms Gurnell’s involvement in or responsibility for those processes.
The Court notes that no claim has been made against Mr Wegner, or against Mr Rowe or Mr Butler. This personal liability claim has been determined, as it must be, on the facts applicable to the claim made, which was solely in respect of the conduct of Ms Gurnell.
Conclusion
The Court has concluded that:
a)the General Protections Claim has not been made out;
b)the Award Breach Claim requires the parties to consider the findings of the Court, and to confer with a view to reaching agreement as to whether or not there has been an underpayment, and if so, how much, and if no agreement can be reached then each party, having regard to the findings of the Court, is to file and serve within 14 days a schedule of alleged underpayments, if any, and the Court will determine that issue on the papers;
c)those parts of the Award Breach Claim with respect to the non-payment of training days, and the non-provision of a week’s notice of termination, have been made out;
d)the Deductions Claim has been made out; and
e)in relation to the contraventions with respect to the Deductions Claim, and the non-payment of training days, the Personal Liability Claim has been made out.
There will an order for the filing and service of the schedule of alleged underpayments as set out above, and otherwise the matter will be adjourned for the making of final declarations and orders as to liability, at a future date.
I certify that the preceding ninety-three (93) paragraphs are a true copy of the reasons for judgment of Judge Lucev
Date: 24 June 2013
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