McIlwain v Ramsey Food Packaging Pty Ltd
[2006] FCA 828
•30 JUNE 2006
FEDERAL COURT OF AUSTRALIA
McIlwain v Ramsey Food Packaging Pty Ltd [2006] FCA 828
INDUSTRIAL LAW – consideration of conduct of dismissal of employees and refusal to employ persons at the South Grafton Abattoir – consideration of Part XA, Divisions 2 and 3 – ss 298K(1)(a) and (d) and prohibited purposes of membership of an industrial association, entitlements to the benefit of orders of the AIRC, participation in proceedings before the AIRC as a party and by giving evidence – the expression of dissatisfaction of working conditions in the context of an industrial association seeking better conditions – consideration of the circumstances required to be satisfied before a statutory presumption of a prohibited purpose arises for the purposes of s 298V.
PRACTICE AND PROCEDURE – consideration of the approach to be adopted in dealing with a ‘no case to answer’ submission and whether a respondent ought to be put to an election as a condition of making the submission – consideration of the basis upon which submission made and the relationship between the grounds advanced by the moving party and the need for an election.
EVIDENCE – consideration of the utility of the report of an expert and the extent to which the report failed to meet the standards required by the Guidelines for Expert Witnesses in Proceedings in the Federal Court of Australia issued by the Chief Justice on 19 March 2004 – consideration of the extent to which the report might be characterised as a piece of advocacy for a party.
EVIDENCE – consideration of the principles governing the reception of tendency evidence both generally and for the purposes of s 97 of the Evidence Act 1995 (Cth) – consideration of the circumstances in which inferences might be drawn from secondary facts in order to establish the fact in issue.
Workplace Relations Act 1996, s 298K(1)(a), (d); s 298L(1)(a), (h), (j), (k) and (l); s 298U(a), (c); s 356(b); s 298T(2)(d); s 298V;
Evidence Act 1995 (Cth)
Crimes Act (Cth) 1914-1932
Conciliation and Arbitration Act 1904-1975 (Cth)
Conciliation and Arbitration Act 1904-1976 (Cth)
Judiciary Act 1903 (Cth)The King v Hush; Ex parte Devanny (1932) 48 CLR 487 – cited and quoted
McIlwain v Ramsey Food Packaging Pty Ltd [2005] FCA 1445 - cited
Australian Competition and Consumer Commission v Amcor Printing Papers Group Ltd (2000) 169 ALR 344 - cited
Protean (Holdings) Ltd v American House Assurance Co. [1985] VR 187 - cited
Stevenson v Barham (1977) 136 CLR 190 – cited and quoted
Compaq Computer Australia Pty Ltd v Merry & Ors (1998) 157 ALR – cited and quoted
Parry v Aluminium Corporation [1940] WN 44 – cited and quoted
J-Corp Pty Ltd v Australian Builders Labourers Federated Union of Workers (Western Australian Branch) & Ors (No. 2) (1992) 38 FCR 458 - cited
Tozer Kemsley & Millbourn (Australasia’s Asia) Pty Ltd v Collier’s Interstate Transport Services Ltd (1955 – 1956) 94 CLR 384 - cited
James & Ors v Australia and New Zealand Banking Group Ltd (1985-86) 64 ALR 347 - cited
Residues Treatment Trading Co. Ltd v Southern Resources Ltd (1989) 52 SASR 54 - cited
Prentice v Cummins (2002) 124 FCR 67 – cited and quoted
The Trustees of the Property of John Daniel Cummins v Mary Cummins [2006] HCA 6 - cited
Jones v Dunkel (1959) 101 CLR 298 - cited
Blackadder v Ramsey Butchering Services Pty Ltd [2002] FCA 603 - cited
Evans Deakin Pty Ltd v Sebel Furniture Pty Ltd [2003] FCA 171 - cited
HG v The Queen (1999) 197 CLR 414 - cited
Qantas Airways Limited [2004] ACompT 9 - cited
Bradshaw v McEwans Pty Ltd 217 ALR 1 – cited and quoted
Luxton v Vines (1952) 85 CLR 352 - cited
Girlock (Sales) Pty Ltd v Hurrell (1982) 149 CLR 155 - cited
Noakes v Doncaster Amalgamated Collieries Ld (1940) A.C. 1014 – cited and quoted
Textile Footwear and Clothing Union of Australia v Bellechic Pty Ltd & Ors [1998] FCA 1465 - cited
David’s Distribution Pty Ltd v National Union of Workers (1999) 91 FCR 463 – cited and quoted
Greater Dandenong City Council v Australian Municipal, Administrative, Clerical and Services Union [2001] 112 FCR 232 - cited
Employment Advocate v Barclay Mowlem Construction Ltd (2005) 139 IR 19 – cited and quoted
Laz v Downer Group Ltd (2000) FCA 1390 – cited and quoted
National Union of Workers v Qenos Pty Ltd (2001) 108 FCR 90 – cited and quoted
Heidt v Chrysler Australia Ltd (1976) 26 FLR 257 – cited and quoted
Transport Workers’ Union v De Vito (2002) 140 IR 33 - cited
General Motors Holden Pty Ltd v Bowling (1976) 12 ALR 605 – cited and quoted
Maritime Union of Australia v Geraldton Port Authority (1999) 93 FCR 34 – cited and quoted
Australian Workers’ Union v John Holland Pty Ltd (2000) 103 IR 205 - cited
BHP Iron-Ore Pty Ltd v Australian Workers’ Union & Ors (2000) 102 FCR 97 – cited and quoted
Health Services Union of Australia v Tasmania (1996) 73 IR 140 - cited
Patrick Stevedores Operations No. 2 Pty Ltd v Maritime Union of Australia (1998 - 1999) 195 CLR 1 – cited
Employment Advocate v Williamson (2001) 111 FCR 1 – cited and quoted
Fraser v Fletcher Construction Australia Ltd (1996) 70 IR 117 – cited and quoted
Construction, Forestry, Mining and Energy Union v BHP Steel (AIS) Pty Ltd [2000] FCA 1008 – cited and quoted
Maritime Union of Australia v Burnie Port Corp. Pty Ltd (2000) 101 IR 435 - cited
Australasian Meat Industry Employees’ Union v Belandra Pty Ltd (2003) 126 IR 165 – cited and quoted
Employment Advocate v Barclay Mowlem Construction Ltd (2005) 139 IR 19 - cited
Burnie Port Corp. Pty Ltd v Maritime Union of Australia (2000) 104 FCR 440 - citedGuidelines for Expert Witnesses in Proceedings in the Federal Court of Australia 19 March 2004
McILWAIN v RAMSEY FOOD PACKAGING PTY LTD & ORS
QUD66 OF 2003
GREENWOOD J
30 JUNE 2006
BRISBANE
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
QUD66 OF 2003
BETWEEN:
PETER LESLIE MCILWAIN
APPLICANTAND:
RAMSEY FOOD PACKAGING PTY LTD
FIRST RESPONDENTRAMSEY FOOD PACKAGING NO. 2 PTY LTD
SECOND RESPONDENTRAMSEY BUTCHERING SERVICES PTY LTD
THIRD RESPONDENTRAMSEY FOOD SERVICES PTY LTD
FOURTH RESPONDENTJUDGE:
GREENWOOD J
DATE OF ORDER:
30 JUNE 2006
WHERE MADE:
BRISBANE
THE COURT ORDERS THAT:
1.The further hearing of the proceeding is adjourned to a date to be fixed to enable the applicant to provide short minutes of order to be made arising out of the findings contained in the reasons for judgment and to hear the parties in relation to further submissions concerning the principles governing the assessment of a compensation component described as general damages in the applicant’s Further Further Amended Statement of Claim and the principles governing whether, and if so, the basis upon which a penalty pursuant to s 298U ought be imposed.
2. The costs of the proceeding are reserved.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
QUD66 OF 2003
BETWEEN:
PETER LESLIE MCILWAIN
APPLICANTAND:
RAMSEY FOOD PACKAGING PTY LTD
FIRST RESPONDENTRAMSEY FOOD PACKAGING NO. 2 PTY LTD
SECOND RESPONDENTRAMSEY BUTCHERING SERVICES PTY LTD
THIRD RESPONDENTRAMSEY FOOD SERVICES PTY LTD
FOURTH RESPONDENTJUDGE:
GREENWOOD J
DATE:
30 JUNE 2006
PLACE:
BRISBANE
REASONS FOR JUDGMENT
INTRODUCTION
Background
In this application, the Employment Advocate under the Workplace Relations Act 1996 (‘the Act’) seeks a declaration that each of the four respondents, all alleged to be employers of labour at an abattoir called the ‘South Grafton Abattoir’ engaged in contraventions of s 298K of the Act in two respects. First, in August and September 2002, the First, Third and Fourth Respondents terminated the employment of 12 individuals for a prohibited reason or reasons that include a prohibited reason. Secondly, each of the four respondents between mid‑September 2002 and December 2002 then refused to employ any one of 11 of those individuals, again for a prohibited reason. No allegation of a refusal to employ is made concerning Ms Susan Jane Young.
The 12 individuals and their respective employers are these:
Employer Employee First Respondent Terence Anthony Brooks
Rodger Charles Campbell
Susan Jane Young
Paul Gerard Swain
Third Respondent Stephen Blackadder
Alick James Delaforce
Gregory Simon Forrest
Colin James Hambly
Michael Robert McKenzie
Paul Francis McKenzie
Trevor Glen Moss
Fourth Respondent John Kevin Young
Section 298K provides that dismissal of an employee and refusal to employ a person are two classes of prohibited conduct on the part of an employer if undertaken for a prohibited reason. Section 298L says such conduct is carried out for a prohibited reason if carried out for a reason that the employee or person concerned has, put broadly, joined or become an officer or delegate of an industrial association, secured an entitlement to the benefit of an industrial instrument or order, has participated or given evidence in a particular proceeding or, in the case of an employee who is a member of an industrial association seeking better industrial conditions, is dissatisfied with his or her conditions of employment. The Employment Advocate alleges that each class of conduct was carried out for one or more of these prohibited reasons in the case of each individual. The section identifies other subject matter not relevant to these proceedings.
Sections 298K and 298L of the Act lie within Div 3 of Pt A which addresses ‘Conduct by employers’. The immediately relevant provisions of s 298K and s 298L are these:
‘Division 3 – Conduct by employers etc.
SECTION 298K DISMISSAL ETC. OF MEMBERS OF INDUSTRIAL ASSOCIATION ETC.
298K(1) [Prohibited reasons for certain conduct by an employer] 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.’
SECTION 298L PROHIBITED REASONS
298L(1) [Interpretation] Conduct referred to in subsection 298K(1) or (2) 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
…
(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
…’
It will be necessary later in these Reasons to consider the objects of Pt XA, the inter-relationship between Div 2 (directed to ‘conduct’ to which Pt XA ‘applies’) and Div 3 and the jurisprudence concerning the scope and construction of the proscriptions contained in s 298K.
Apart from a declaration of a contravention of s 298K of the Act, the Employment Advocate seeks an order imposing on each respondent a penalty pursuant to s 298U(a) of the Act, an order pursuant to s 298U(c) of the Act requiring the respondents to pay the 12 individuals compensation for the affect upon each of them of the contravening conduct and an order in reliance upon s 356(b) of the Act that any penalty imposed upon the respondents be paid to the applicant.
Section 298T(2)(d) of Div 6 of Pt XA provides that the Employment Advocate may apply to the Federal Court of Australia for orders under s 298U concerning conduct in contravention of Pt XA. By reason of s 298X, conduct in contravention of s 298K is not an offence under the Act.
Section 298U is in these terms:
‘SECTION 298U ORDERS THAT THE FEDERAL COURT MAY MAKE
298U 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.’
The Prohibited Reasons
The reasons pleaded by the Employment Advocate as the prohibited reasons for carrying out the dismissal conduct and the refusal to employ in respect of each individual are these:
Mr Stephen Blackadder
·On 27 September 1999, Mr Blackadder gave evidence in a proceeding commenced by Mr Swain under the Act in which Mr Swain sought a reinstatement order against the First Respondent, among other orders (s 298L(1)(k)).
·On 18 and 19 January and 17 February 2000, Mr Blackadder prosecuted a proceeding under the Act against the Third Respondent seeking a reinstatement order, among other orders (s 298L(1)(j)).
·On 29 March 2000, Mr Blackadder obtained the benefit of a reinstatement order of the Australian Industrial Relations Commission (‘AIRC’) (s 298L(1)(h)).
Colin James Hambly
·On 21 July 1999, Mr Hambly commenced proceedings under the Act against the Third Respondent seeking, among other things, a reinstatement order.
·On 30 January 2000, Mr Hambly prosecuted that proceeding (s 298L(1)(j)).
·On 14 February 2000, Mr Hambly obtained an order of the AIRC for reinstatement (s 298L(1)(h)).
Paul Gerard Swain
·On 6 May 1999, Mr Swain commenced proceedings under the Act against the First Respondent seeking, among other things, a reinstatement order and prosecuted that proceeding (s 298L(1)(j)).
·On 6 June 2000, Mr Hambly obtained an order of the AIRC for reinstatement (s 298L(1)(h)).
Alick James Delaforce
·On 17 February 2000, Mr Delaforce gave evidence and participated in a proceeding commenced by Mr Blackadder under the Act by which Mr Blackadder sought a reinstatement order against the Third Respondent (s 298L(1)(j)).
·Mr Delaforce was both a member of the Australasian Meat Industry Employees’ Union (‘AMIEU’) and a delegate of the Union at the workplace (s 298L(1)(a)).
·Mr Delaforce was dissatisfied with his conditions and was seeking improved conditions of employment for himself and other employees at the abattoir (s 298L(1)(l)).
Paul Francis McKenzie
·On 23 June 1999, Mr McKenzie proposed to give evidence and participate in a proceeding under the Act commenced by Mr Jason Robertson against the First Respondent seeking, among other things, a reinstatement order (s 298L(1)(j) and (k)).
·Mr McKenzie was a member of the AMIEU (s 298L(1)(a)); and
·Mr McKenzie was dissatisfied with his conditions of employment (s 298L(1)(l)).
Trevor Glen Moss
·Mr Moss was both a member of the AMIEU and a delegate of the Union at the abattoir (s 298L(1)(a)); and
·Mr Moss was dissatisfied with his conditions and was seeking improved conditions both for himself and other employees at the abattoir (s 298L(1)(l)).
Terence Anthony Brooks, Rodger Charles Campbell, Gregory Simon Forrest, Michael Robert McKenzie, John Kevin Young and Susan Jane Young
·In respect of all of these individuals, the prohibited reasons are said to be that each of them was a member of the AMIEU and each was dissatisfied with his or her working conditions and in particular, wage levels paid by the relevant abattoir employer (s 298L(1)(a) and (l)).
In respect of each allegation concerning dissatisfaction with working conditions, the allegation is made against the background of the Union seeking improved conditions for its members.
The Period of the Relevant Events
The Employment Advocate contends that although the conduct of dismissal occurred in September 2002, it was carried out for a prohibited reason deriving from a series of events of engagement between Mr Stuart Ramsey as the guiding mind of the employer entities and, in particular, Mr Justin Davis on behalf of the AMIEU, Mr Moss and Mr Delaforce as workplace delegates of the AMIEU and employee members of consultative committees formed to negotiate aspects of working conditions with Mr Ramsey, which occurred over a lengthy period.
The applicant contends that Mr Ramsey acquired, reopened and commenced operating the abattoir in April 1998 expressly on the footing that particular workplace arrangements could be negotiated and approved by the AIRC and that Mr Ramsey’s view as to the content and formulation of those conditions would, from time to time as he thought appropriate, endure so as to secure the profitable operation of the abattoir.
Participation by the AMIEU in negotiating the structural employment arrangements at the abattoir, participation by employees in the Union as a member or delegate, the expression of dissatisfaction with the content of the conditions of employment, steps taken to oppose approval of an enterprise agreement and steps taken to bring Australian Workplace Agreements to an end, all represented positions taken by particular employees that threatened Mr Ramsey’s perceived criticality of the conditions and arrangements he preferred.
The facts therefore which are said to be probative of Mr Ramsey’s reasons for the dismissal conduct are not confined to events immediately proximate to September 2002. The period of enquiry necessarily commences, it is said, in April 1998 when Mr Ramsey sought to establish the foundation employment conditions which influenced events throughout the period leading up to 2001 and throughout 2002. The evidence of those arrangements, the hostility of Mr Ramsey to a contrary view and those articulating it and the events that put Mr Ramsey, the AMIEU and each of the 12 individuals in particular controversy, are said to be facts from which inferences may be drawn of the prohibited reasons. Evidence of these facts are thus said to be admissible as evidence relevant to the proof of the fact in issue, namely, Mr Ramsey’s attitude and reasons for carrying out the conduct.
Some of the evidence relied upon by the applicant raises the question of whether evidence of conduct or evidence of a tendency on the part of Mr Ramsey to act in a particular way, or to have a particular state of mind, is admissible for the purposes of s 97 of the Evidence Act 1995 (Cth). Apart from evidence said to be probative of a prohibited reason, the applicant relies upon a statutory presumption by operation of s 298V of the Act as a sufficient discharge of an onus cast upon it to establish, on the balance of probabilities, a contravention of s 298K(1).
All of these contentions are relied upon to support the proof of the reasons for the consequential conduct of refusing to employ 11 of the 12 individuals once re‑engagement of the workforce began reasonably quickly after the termination conduct was effected.
The respondents challenge the admissibility of much of this evidence going to the historical events. Due to the events mentioned at pars 61 to 81 of these reasons, the parties agreed that objections to evidence would be dealt with in the reasons for judgment. Accordingly, rulings on objections to evidence are dealt with at the conclusion of these reasons as an Appendix.
Apart from the contended historical controversy between Mr Ramsey and the AMIEU and those individuals articulating a particular criticism of the employment arrangements, the Employment Advocate contends that Mr Blackadder, Mr Swain and Mr Hambly suffered termination of employment because each of them had sought and obtained the benefit of a reinstatement order by the AIRC arising out of an earlier termination in each case. In a similar sense, Mr P F McKenzie’s proposal to give evidence in Mr Robertson’s reinstatement proceeding is said to be a reason for his dismissal. The applicant contends that the relevant abattoir entity also refused to employ these men during the re-engagement period for the same reason.
A BROADER SUMMARY OF THE ISSUES
The applicant’s case in summary is this.
The South Grafton Abattoir is a livestock slaughtering and meat processing facility which, like all abattoirs, exhibits a number of functional task-specific activities two examples of which are activities conducted in the slaughter room (or on the slaughter floor) and tasks performed in the boning room. The field of task-specific activities undertaken at the South Grafton Abattoir have been performed at material times by employees of each of the respondent companies. In or about August and September 2002 the cohort of employees performing these tasks was given notice that the employment of each employee had been terminated due to a stock shortage.
Within the cohort of employees dismissed from employment were each of the 12 individuals identified at [2] by reference to the particular respondent employer. The Employment Advocate contends, on the pleadings, that there was no stock shortage sufficient to justify the termination of employment of the cohort including each of the 12 particular individuals. The applicant therefore calls into question the accuracy of the explanation given by the respondent employers for the termination conduct.
The applicant contends that a reason or reasons for the termination of employment of the particular 12 individuals was a reason or reasons prohibited by s 298L of the Act and thus a contravention of s 298K(1) arises. In discharging the onus of establishing a contravention of s 298K in respect of each individual, the applicant relies upon s 298V of the Act. The applicant says that all of the elements of s 298V have been established because:
(a)the applicant has made an application under Div 6 of Pt XA;
(b)that Application relates to the statutory conduct (termination and refusal to employ) on the part of each respondent;
(c)the applicant has alleged that the conduct was carried out for a reason falling within s 298L; and
(d)if each respondent carried out the conduct for the alleged reason, a contravention of Pt XA would arise by force of s 298K.
Accordingly, a statutory presumption arises by operation of s 298V that the conduct was carried out for that reason unless each respondent company proves otherwise. Since none of the respondent companies have rebutted the presumption, the section, it is said, does its work to establish that the conduct was carried out for a reason alleged. Notwithstanding that the Employment Advocate says it is enough to prove conduct and aver a prohibited reason, the applicant also relies upon material that is said to actually demonstrate a prohibited purpose. Both contentions are made in this case.
Section 298V which forms part of Div 6 –‘Remedies for breaches of this Part’, is in these terms:
‘SECTION 298V PROOF NOT REQUIRED OF THE REASON FOR, OR THE INTENTION OF, CONDUCT
298V 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.’
Apart from the termination of employment, the applicant contends that once the South Grafton Abattoir re-opened and commenced operations in September 2002, each of the four respondents further contravened the Act by refusing to employ 11 of the dismissed individuals for a reason or reasons identified at [9]. The Employment Advocate contends that although it is not necessary to plead or prove the relevant person sought employment in order to establish a ‘refusal to employ’ for the purposes of s 298K(1)(d), Blackadder, Brooks, Campbell, Delaforce, Forrest, Hambly, M R McKenzie, P F McKenzie, Moss, John Kevin Young and Swain all sought employment at the South Grafton Abattoir in the period September 2002 to December 2002 and all were refused employment for a prohibited reason.
Similarly, the Employment Advocate contends that in respect of that conduct, the elements of s 298V have been satisfied and a statutory presumption arises which has the effect of discharging the onus of proof and thus establishing this further contravention. The evidence is said to establish a contravention in any event.
In answer, the respondents say this.
Because the starting point of an examination of the conduct of the respondents involves conduct concerning the termination of the entire cohort of employees at the South Grafton Abattoir at the material time, the respondents contend the termination conduct does not involve conduct directed to any one employee or a class of employees. Therefore, there is no conduct by an employer which can be characterised as discrimination or victimization of that employee. In other words, there is no conduct by a respondent employer qua an employee which attracts the operation of s 298K of the Act. That is said to be the end of the matter.
Section 298K, it is contended, must be read subject to the objects of Pt XA contained in s 298A and particularly s 298F which has the effect of importing into s 298K a central notion of discrimination against a person or relevantly identified class of persons as compared with others. Since the termination was ubiquitous, there was no threshold of discrimination or differential treatment. Accordingly, the statutory presumption has no role to play in the circumstances of this case. The Employment Advocate must discharge an onus of establishing the colour of the ‘ingredients’ (to use a term adopted by Dixon J in another context in The King v Hush; Ex parte Devanny (1932) 48 CLR 487 at p.507) of s 298K which involves establishing facts which would support an hypothesis that the conduct occurred for a reason or reasons falling within s 298L and only then could the presumption contained in s 298V arise or have a role to play.
The notion that the Employment Advocate might prove the conduct and simply allege a reason or reasons falling within s 298L and then stand on the presumption as a proper discharge of the onus of proof fails, it is said, to understand the proper role of s 298V of the Act.
In relation to the second contravention based upon the alleged refusal to employ 11 of the 12 individuals, the respondents say that as to Blackadder, his employment was continued notwithstanding the alleged dismissal. As to Brooks, Campbell, Delaforce, Forrest, M R McKenzie, P F McKenzie, Moss and J K Young, the respondents say that each of those former employees was offered re-employment and in some cases the offers of re-employment were taken up and in other cases refused. In the case of Hambly, the respondents say that he was not offered further work after the termination, for reasons related to his work performance and conduct. As to Swain, the respondents plead that he contacted the abattoir by letter dated 12 September 2002 and again on or about 18 January 2003 and was advised that no work was then available. Accordingly, the respondents deny a refusal to employ.
The respondents say that upon a proper construction of s 298K in respect of the refusal to employ allegation, there is no demonstrated discrimination and thus no operation for the section or the statutory presumption contained within s 298V. The respondents say that the applicant bears an onus of showing there was a vacancy to be filled before a refusal to employ can be made out.
In response to the respondents’ pleading concerning the circumstances of offers of work and acceptance of work, the applicant says that having regard to all the facts and circumstances of those offers, the offers were not genuine and therefore there was a continuing refusal to employ. As to the question of whether s 298K has no operation in circumstances where an employer terminates a cohort of employees, the Employment Advocate says that notwithstanding that all employees were terminated, it remains possible that a group of persons within the cohort of employees were subjected to conduct for a reason or reasons prohibited by s 298L. Section 298K, on its face, contemplates that there might be reasons which fall outside s 298L which might affect every employee but equally there might be reasons within s 298L in respect of particular employees which are an operative reason. The applicant says that since the employer is in the best position to know the field of reasons for the conduct and the operative reasons, the policy of the legislation is to invoke a statutory presumption once conduct for a reason constituting a contravention is alleged thus placing an onus upon an employer to rebut the presumption by adducing evidence of the reason.
In addition to these matters, the respondents plead a denial that there was no stock shortage sufficient to justify the termination conduct, plead a denial that the Third Respondent employed any employees at the material time and plead that the requirement of the Respondents for labour was dependant upon the requirements of the operator of the South Grafton Abattoir, Ramsey Food Processing Pty Ltd (‘RFP’), for the acquisition of labour hire services from the Respondents and that RFP had no requirement for labour owing to the stock shortage. As to affirmative matters pleaded by the Respondents, no evidence was called by the Respondents to establish the facts pleaded. Counsel for the Respondents cross‑examined two of the applicant’s witnesses, Mr Davis and Mr Broadway and none of the former employees. As to denials, the applicant was put to proof.
OTHER MATERIAL CONTENTIONS FRAMING THE ISSUES
The Applicant’s Contentions
Other material facts framing the applicant’s contentions are these.
At all material times, the AMIEU was seeking improved conditions for its members (and persons eligible to be members) employed at the abattoir. The agitation for improved conditions included matters such as higher wages, the retention of payment for waiting time, treatment of rostered days off, better sick leave provisions and the basis for payment of an incentive payment as a supplement to wages. The particular issue involved the payment of what is known as ‘double overs’.
In late 2001, a consultative committee was established to negotiate a draft enterprise agreement with Mr Stuart Ramsey on behalf of the First and Third Respondents and the employee members included Delaforce, P F McKenzie and Moss. The committee sought from Mr Ramsey the improved conditions sought by the AMIEU.
In March or April 2002, the committee was replaced by a second consultative committee similarly established to negotiate a draft enterprise agreement with Mr Ramsey on behalf of the First and Third Respondents and that committee included Brooks, Campbell, M R McKenzie and J K Young. The committee sought, among other things, an increase in wages for employees of the abattoir.
A third consultative committee was established to negotiate an enterprise bargaining agreement with Mr Ramsey by which improved conditions were sought. The members of the third committee included Brooks, Delaforce, Forrest, Moss, J K Young and S J Young.
Brooks, Campbell, Delaforce, Forrest, M R McKenzie, P F McKenzie, Moss, J K Young and S J Young were all members of the AMIEU and Moss and Delaforce were both delegates of the AMIEU at the South Grafton Abattoir.
The Notice of Termination was effected in August 2002 by pinning an undated notice on the abattoir noticeboard of termination due to a stock shortage and by sending letters to each employee dated 10 September and 13 September.
As to Mr Stephen Blackadder, the Employment Advocate contends that there has been a long history of disputation commencing, in essence, on 27 September 1999 when Mr Blackadder gave evidence in a proceeding commenced by Mr Swain against the First Respondent. On 5 October 1999, the Third Respondent terminated Mr Blackadder’s employment and on 25 October 1999 Mr Blackadder filed an application pursuant to s 170CE of the Act against the Third Respondent seeking reinstatement. Those proceedings were progressed on 18 and 19 January 2000 and 17 February 2000. On 29 March 2000, the AIRC made a reinstatement order. Proceedings subsequently took place in the Federal Court concerning responses to the reinstatement order by the Third Respondent, performance of the order and related matters all of which are said to form the basis of a prohibited reason for a termination effected in August and September 2002.
Similarly, Mr Hambly and Mr Swain commenced, prosecuted and secured orders of the AIRC for reinstatement arising out of a termination of their respective employment which occurred in 1999.
Particulars have been pleaded of the various attempts by 11 of the 12 former employees (the subject of these proceedings) to secure employment commencing from the moment in time when the relevant employer entities sought to re‑employ a workforce at the abattoir shortly after the termination of employment of the entire workforce in September 2002. In reviewing the evidence concerning those matters, I will deal with the precise chronology of events.
The Respondents’ Contentions
The First, Second and Fourth Respondents admit that all persons employed at the abattoir (including all 12 individuals save as to Blackadder) were dismissed from employment in August or September 2002. The Third Respondent says it was not an employer at that time.
As to Blackadder, the notices of termination and termination itself are denied and the respondents say the question of whether Blackadder was dismissed is a question of law.
As to the employment relationship, the First Respondent admits it was an employer of labour at South Grafton Abattoir at all material times. The Second Respondent admits it was an employer but first became an employer from January 2002. The Third Respondent says it was but ceased to be an employer of labour on 3 September 2001. The Fourth Respondent admits it was an employer of labour at all material times. The respondents contend that certain transfers or assignments of the employment contracts occurred from one Ramsey entity to another.
The applicant contends that the purported transfer of employment of particular employees from the Third Respondent to the Second Respondent was ineffective as no consent was obtained from the employees and, operationally, arrangements between particular entities for the payment of wages was simply an administrative internal arrangement which did not alter the legal effect of the bilateral employment arrangement between the particular employer and each employee.
As to the role of the AMIEU, all four respondents deny the AMIEU was seeking improved conditions for its members (or potential members) employed at South Grafton Abattoir and deny Stuart Ramsey was so aware.
As to any inter-relationship between the AMIEU seeking improved conditions for those employed at the abattoir and the role of each consultative committee of employees, the First, Second and Fourth Respondents admit the formation of the first and second consultative committees to negotiate an enterprise agreement with Stuart Ramsey. All four respondents deny the members of the first consultative committee sought improved conditions also sought by the AMIEU.
All four respondents admit the second consultative committee sought an increase in wages in April 2002 for employees at the abattoir from Stuart Ramsey who was then acting on behalf of the First, Second and Fourth Respondents. All four respondents admit the establishment of the third consultative committee but do not admit any role for that committee in negotiating an enterprise bargaining agreement with employers of labour at the abattoir or the seeking of improved conditions.
As to the assertion of no stock shortage sufficient to justify the dismissal of the individuals, the First, Second and Fourth Respondents plead these facts. Ramsey Food Processing Pty Ltd (‘RFP’) operated the abattoir and engaged the First, Second and Fourth Respondents to provide labour deployed in the abattoir. RFP exclusively slaughtered and processed cattle for Ramsey Meats Pty Ltd (‘RMPL’). In September 2001, the Third Respondent ceased and in January 2002 the Second Respondent became an employer of labour. From 30 August 2002, RFP ceased operations on the slaughter floor and on 2 September 2002 RFP ceased processing in the boning and processing areas of the abattoir. On or about 11 September 2002, RMPL commissioned RFP to slaughter and process cattle and RFP sought and acquired labour from the First, Second and Fourth Respondents that in turn sought labour from the labour market.
As to the re‑employment conduct, the First, Second and Fourth Respondents admit that during September, October and November 2002 each of those respondents commenced re‑employing labour at the South Grafton Abattoir. The Third Respondent denies it employed or was seeking to employ any labour at the abattoir during this period.
As to the prohibited reasons which are said to give the dismissal conduct and refusal to employ conduct its contravening character, the respondents say this.
As to Mr Blackadder, although all respondents deny Mr Blackadder’s employment was terminated by the Third Respondent on 5 October 1999, all respondents admit that termination of employment was found by Commissioner Redmond to have occurred on 29 March 2000 at the initiative of the Third Respondent. The Third Respondent denies the conduct of dismissal of Mr Blackadder in August or September 2002 and says Mr Blackadder remained employed at all material times by the First Respondent.
All respondents deny the allegations of attempts by Mr Blackadder to secure employment or that Mr Blackadder was refused employment. Since the conduct did not occur, the respondents say no question of any operative prohibited reasons bear analysis.
As to Mr Hambly, all four respondents admit the foundation facts. However, the Third Respondent denies the dismissal of Mr Hambly for the reasons alleged and all four respondents deny that Mr Hambly was available for employment during the re‑engagement period. A similar position is taken by the respondents in relation to Mr Swain and in his case the First Respondent denies dismissal for the prohibited reasons alleged and all four respondents deny Mr Swain was available for employment during the re‑engagement period.
As to Mr Delaforce, all four respondents admit that Mr Ramsey knew Mr Delaforce was a member and delegate of the AMIEU at the workplace and a member of the first and third consultative committees. All four respondents say they did not know that Mr Delaforce was dissatisfied with conditions of employment at the abattoir or that he was seeking improved conditions for himself and other employees at the workplace. All four respondents admit that Mr Ramsey knew that Mr Delaforce sought to have his Australian Workplace Agreement (‘AWA’) terminated in 2002.
As to Mr Moss, similar admissions are made to that of Mr Delaforce.
The position taken in relation to Mr Brooks is reflected, in broad terms, in respect of the contentions made concerning Campbell, Forrest, M R McKenzie, P F McKenzie, J K Young and S J Young. By was of illustration, all four respondents admit that Mr Brooks was a member of the second and third consultative committees but say that they do not know and cannot admit whether Brooks was a member of the AMIEU or dissatisfied with wage levels paid by the abattoir. All four respondents acknowledge that Brooks sought to have his AWA terminated in July 2002 and all four respondents deny that Mr Ramsey knew of Brooks’s membership of the AMIEU or any dissatisfaction he held concerning wage levels paid at the abattoir. The First Respondent (as the employer of Brooks in this example) denies dismissal for the alleged prohibited reasons and all four respondents do not admit that Mr Brooks was available for employment during the re‑engagement period in September, October or November 2002. All four respondents deny the particulars pleaded concerning attempts made by Mr Brooks to seek employment.
This summary of the issues reflects a factual and legal controversy about which evidence was called (and might have been called) framed by a Further Further Amended Statement of Claim (‘F F A S C’) filed by leave on what amounted to the second day of the trial on 18 October 2005 (Document 142 on the Court file), a Further Amended Defence to the F F A S C filed by leave on 19 October 2005 (Document 143 on the Court file) and an Amended Reply (Document 141) filed on 18 October 2005.
THE VARIOUS APPLICATIONS FOR LEAVE TO AMEND AND MOTIONS SEEKING PARTICULAR ORDERS
Before dealing with an assessment of the evidence called by the applicant, objections to evidence, the submission by the respondents of ‘no case to answer’ at the conclusion of the applicant’s evidence and case, the election to which the respondents were put in making the ‘no case to answer’ submission and the questions of law arising in the action, it is necessary to deal with the matters which resulted in amendments to the pleadings and applications made by the parties in the course of the trial notwithstanding the very extensive case management of the litigation.
These proceedings were commenced on 9 May 2003 and have been the subject of extensive case management. Some aspects of the interlocutory steps (but not all) are described at [38], pages 29-33 of McIlwain v Ramsey Food Packaging Pty Ltd [2005] FCA 1233 based upon a chronology put before me by the respondents as part of the respondents’ application for non-party discovery and leave to issue subpoenas.
All of these steps demonstrate that the factual and legal controversy has been framed over a considerable period with many interlocutory orders directed to joinder of parties, amendments to the Statement of Claim, the filing of defences, amendments to the Defence, the provision of particulars, verified discovery, inspection, various interlocutory applications and the preparation of statements in support of the claim, statements in response and statements in reply. A considerable amount of time, energy, cost and intellectual effort has been directed by the parties to joining issue on the factual and legal controversy with extensive recourse to Court supervision and Court engagement.
Splitting of Issues
The trial of the action was to commence on Monday, 10 October 2005. However, approximately one week prior to the trial a question arose as to whether the trial would proceed on the issue of the alleged contravention with a separate hearing on the issue of compensation. As to the question of bifurcating the issues, I indicated that I was not prepared at that late stage to separate issues and required the applicant to provide particulars of the compensation claim. The preparation for trial throughout proceeded on the footing that particulars of the compensation claim would be provided to the respondents prior to trial. By consent, the trial was adjourned to 12 October to enable particulars of the compensation claim to be provided to the respondents, discussions to take place between the parties as to a proposed Reply by the applicant to the Amended Defence of the respondents and to deal with objections to evidence with the trial to commence on Monday, 17 October.
Leave to Deliver a Reply
On Wednesday, 12 October the applicant brought on a motion seeking leave to deliver a Reply which sought to do two things. First, to plead material facts in response to paragraph 130 of the Amended Defence on the part of the respondents which sought to answer the allegations in respect of Brooks, Campbell, Delaforce, Forrest, M R McKenzie, P F McKenzie, Moss, John Kevin Young and Susan Jane Young that these former employees had been offered or had accepted or rejected offers of employment at material times. Secondly, the Reply sought to raise the proposition that arising out of factual controversy reflected in the statements exchanged between the parties, the conclusion was open that the respondent had engaged in a further contravention of s 298K by altering the position of an employee to the employee’s prejudice within the scope of s 298K(1)(c).
The essence of the Reply was to put in issue, as counsel for the applicant put it, ‘whether or not what was offered to the named persons was, in fact, a genuine offer and whether what was offered amounted to a breach [of the Act] or not’ (page 9, line 27 of the Transcript). After hearing counsel for the respondents opposing leave, I stood the matter down briefly and took the view that the responsive matters the subject of the Reply were within the scope of the existing factual controversy, that no prejudice was demonstrated to the respondents in giving leave and that the question of whether a further contravention based upon s 298K(1)(c) arose on the facts before the parties arising out of the statements was a conclusionary matter which could properly be raised. I gave short Reasons about those matters (McIlwain v Ramsey Food Packaging Pty Ltd [2005] FCA 1445) but directed that the third ground of contravention should be pleaded by way of a Further Further Amended Statement of Claim (‘F F A S C’).
F F A S C
Counsel for the applicant and the respondents took the view that the trial of the action would be concluded within two weeks commencing Monday, 17 October and accordingly the commencement of the trial was adjourned until 17 October to enable the F F A S C to be formulated by the applicant and served on the respondents during the course of Thursday, 13 October 2005. I made it clear to counsel for the respondents that should the F F A S C raise further material facts which went beyond the scope of the facts raised in the statements exchanged between the parties, I would be willing to hear the respondents in relation to the F F A S C and determine whether the third ground of contravention should properly be the subject of leave in the context of the facts actually pleaded in the F F A S C as it emerged. The F F A S C was also to incorporate proper particulars of the compensation claim.
On Monday, 17 October at the commencement of the trial, the respondents opposed leave to amend the Further Amended Statement of Claim in accordance with a proposed F F A S C to introduce the third ground of contravention in reliance on s 298K(1)(c) having regard to what was said to be the proper understanding of the scope and construction of that provision and particularly the meaning of ‘employee’ in s 298K(1)(c).
Notice of Motion by the Respondents
In addition however, the respondents, on the afternoon of 14 October, filed a Notice of Motion returnable on what was to be the first day of the trial, Monday, 17 October, seeking orders which went well beyond orders in relation to the proposed additional ground of contravention based upon s 298K(1)(c) formulated in the F F A S C. By the motion, the respondents sought:
(a)an order ‘that certain questions in [the following orders] be heard separately from any further trial in the proceedings’;
(b)an order ‘declaring that a necessary allegation in a pleaded contravention of s 298K of the Workplace Relations Act, 1996 is the fact that the detriment allegedly suffered by the aggrieved person was both a relative and absolute detriment’;
(c)an order declaring ‘that a necessary allegation in a pleaded contravention of s 298K(1)(d) of the Workplace Relations Act 1996 is that the aggrieved person sought employment from the alleged contravener’;
(d)an order declaring ‘that on its true meaning and interpretation s 298K(1)(d) of the Workplace Relations Act 1996 requires only that an employer not refuse to employ a person in the protected category’;
(e)an order declaring ‘that a necessary allegation in a pleaded contravention of s 298K(1)(c) of the Workplace Relations Act 1996 is that the aggrieved person was an employee of the alleged contravener at the time of the alleged contravention”.
The Notice of Motion sought an order pursuant to O 20, r 2(1)(a) of the Federal Court Rules (‘F C R’) dismissing the proceedings generally on the ground that no reasonable cause of action was disclosed (par 6 of the motion) and in the alternative, an order pursuant to F C R, O 11, r 16(1)(a) striking out the whole of the F F A S C as disclosing no reasonable cause of action (par 7 of the motion) and in the further alternative an order pursuant to F C R, O 11, r 16(1)(c) striking out the whole of the F F A S C as an abuse of process on the ground that the F F A S C offends F C R, O 11, r 8(1) (par 8 of the motion). Extensive written submissions in support of the motion were provided to the Court.
It can be seen that apart from the question arising in connection with s 298K(1)(c) and whether it was appropriate to give leave to further amend the Amended Statement of Claim to allow the applicant to introduce the third ground of contravention having regard to the field of the existing controversy and the extent to which the respondents might suffer prejudice, the substance of the orders sought went to matters central to the factual and legal controversy the very subject of the proceedings and about which the parties had joined issue, participated in case management and directions orders and otherwise prepared the litigation for trial.
Senior Counsel for the applicant, Mr Martin SC, said that he was not in a position to properly argue the merits of the motion having only had, in effect, a number of hours to consider the orders sought by the motion. I stood the motion over until the following morning, 18 October but said that I was prepared to hear the respondents immediately on paragraph 5 of the motion which went to the proposed amendment to plead facts giving rise to the third ground of contravention based upon an alleged ‘alteration of the position of an employee to the employee’s prejudice’: s 298K(1)(c).
After some argument, counsel invited me to stand the matter down for a short time and upon resuming, counsel for the applicant said that in order to avoid any delay to the trial of the action, the applicant would abandon any allegation of a further third contravention. Accordingly, the two grounds of contravention the basis of the proceedings prepared for trial, namely, alleged contraventions of s 298K(1)(a) and s 298K(1)(d) remained the subject matter of the trial.
In relation to the question of the motion generally seeking orders for the striking out of the Statement of Claim and the dismissal of the proceedings at large which was to be heard the following morning, I made observations to the effect that whilst I would hear counsel for the parties on the matter it seemed to me to be an inappropriate way to proceed at trial particularly having regard to the matters referred to at [61] and [62]. In addressing counsel for the respondents in relation to the motion, Mr Hatcher SC, I made these observations:
‘So it seems to me that these questions have been alive to the respondents for a very considerable period of time and could have been and, with respect, should have been the subject of an application for a preliminary determination a long time ago about these matters.
It seems to me to be particularly inappropriate at the commencement of the trial to come and say that if you take the Statement of Claim in terms of the facts pleaded and assume that those facts were established they don’t give rise to a contravention as a matter of construction of the provisions. They seem to me to be submissions that ought to be put at the conclusion of the trial, at the end of the factual controversy when you can say the claim is either sustained or not sustained. But to incur the costs of bringing people to the cusp of the trial and then say, ‘this is all misconceived’, seems to me to be an odd way to approach the determination of justiciable issues in the Court.’ (Transcript; 17 October 2005, page 8, lines 37-47 and page 9, lines 1 and 2).
The concern, of course, is that such an application would simply have the effect of delaying the reception of evidence and the trial of the contested questions of fact and law.
Leave to Amend in Terms of the F F A S C
On 18 October 2005, counsel for the applicant handed up the further amendments to the Statement of Claim to delete any reference to a third contravention and any reference to a refusal to employ in the case of Susan Jane Young. The F F A S C also pleaded the material facts going to attempts by each of the 11 individuals to seek employment with the respondents. An Amended Reply was also provided to the Court which was responsive to the Amended Defence of the respondents of 22 March 2005. The Amended Reply pleads facts and circumstances directed to demonstrating that any offers of employment made, accepted or rejected by the 11 individuals were not genuine offers and therefore, in the premises, the respondents have refused to employ any one of the 11 individuals.
The respondents elected to adjourn generally the notice of motion and indicated that they would probably seek to agitate the motion at the conclusion of the applicant’s case.
On the question of whether leave should be given to amend in terms of the F F A S C, counsel for the applicant said that the pleading of the additional facts as particularised raised no new assertions of fact as each set of the particulars was drawn from the material filed by the applicant in the respondents’ possession and was consistent with the material filed in the affidavits of the named individuals (Transcript, page 14, line 44). Also, Mr Hatcher SC conceded that the material relied upon by the applicant was in the affidavits and conceded that if the Reply was putting in issue the genuineness of the offers of employment on the part of the respondents, no new issue was raised (Transcript, page 16, lines 1-3 and 45-47). It seemed to me that if the material facts now being pleaded arose out of the material already available to the respondents and the allegation was confined to that material, no prejudice to the respondents arose by giving leave (Transcript, page 19, lines 15-35). As to the Reply, the applicant’s case on the Reply is that offers pleaded by the respondents nevertheless continued to constitute a refusal to employ during the relevant period because the offers were not genuine (Transcript, page 29 generally).
Having heard extensive argument on the proposed F F A S C and the Amended Reply, counsel for the respondents asked for the matter to be stood down briefly. Upon resumption, counsel for the respondents accepted that on the basis of the case put by counsel for the applicant in the proposed F F A S C, the respondents could not say that any material facts were introduced that put the respondents at prejudice in the conduct of the litigation: (pg 34, Transcript, lines 10-30).
Accordingly, I gave leave to amend the Statement of Claim in terms of the F F A S C.
Further Amended Defence
On 19 October 2005, the respondents delivered a Further Amended Defence to the F F A S C. The Further Amended Defence was not simply responsive to those paragraphs of the F F A S C pleading material facts and particulars going to attempts by each of the 11 individuals to seek employment with the respondents but introduced a range of amendments to the pleading all of which were opposed by counsel for the applicant. Having heard counsel for the applicant extensively on the amendments it seemed to me that the sequence of amendments throughout the pleading could be grouped into categories and I then dealt with the materiality of the amendments, the extent to which those amendments might be prejudicial in the conduct of the applicant’s case, the extent to which the respondents proposed to press aspects of those amendments and the extent to which particulars might be given of a proposed paragraph 12A of the Further Amended Defence to the F F A S C. Each of those matters was resolved in argument before me to the satisfaction of the parties as a result of which I gave leave to amend the Amended Defence and directed the solicitors for the respondents to prepare a properly complying Further Amended Defence to the Further Further Amended Statement of Claim marking up the changes for which leave was given arising out of the argument before me on the proposed Further Amended Defence. That marked up document pursuant to leave given on 19 October 2005 was filed on 26 October and is document 143 on the Court file. The F F A S C was filed in final form on 26 October and is document 142. The Amended Reply was filed on 18 October and is document 141. Leave was given on 18 October to file a Further Further Further Amended Application (‘F F F A A’) which deletes relief in respect of the abandoned third contravention and abandons any claim in respect of Susan Jane Young based upon a refusal to employ. That document is document 139 on the Court file.
Objections to Evidence
As a result of the closure of the pleadings, the question of objections to evidence arose. Each party has provided submissions in the form of a schedule of objections to evidence filed by the opposing party identifying each ground of objection. In order to avoid any further delay in the conduct of the trial, the parties were content to reserve rulings in relation to objections to evidence to be dealt with in the judgment and proceed on the footing that although I would be aware of the objectionable material I would, plainly enough, not be influenced by or rely upon the material if I took the view that the objection taken was sound.
No Case to Answer Submission by Respondents
That being so, Mr Martin SC opened the case for the applicant. At the close of the applicant’s case, Counsel for the respondents sought to make a submission of no case to answer on the basis that in doing so, no election was being made not to call evidence. As a result, I then invited preliminary argument on the question of whether the respondents ought to be put to an election in making a no case submission. The respondents during the course of the trial had sought to agitate a notice of motion seeking orders dismissing the proceedings generally on the ground that no reasonable cause of action was disclosed, among other orders: see [68] – [71]. Those questions focused upon limitations said to arise out of the formulation of the pleading whereas the no case submission involved a consideration of not only questions of law but also whether an assessment of the evidence adduced by the applicant disclosed a case to answer. Having heard argument on the question of whether the respondents ought to be put to an election, I made a ruling that I would entertain a no case submission but only on the basis that the respondents were put to their election. I said to the parties that I would provide reasons for putting the respondents to an election as a condition of entertaining a ‘no case’ submission, as part of these reasons.
Senior Counsel for the respondents was not prepared to make that election. Having determined that matter, Senior Counsel for the respondents indicated that he was not in a position to call evidence from the principal witness for the respondents, Mr Stuart Ramsey. Rather than force Counsel to open the case for the respondents, I granted Counsel the indulgence of adjourning the matter until the following morning. On the following morning, Counsel made an election not to call evidence and opened submissions in support of the ‘no case to answer’ proposition. At the conclusion of submissions in response by Senior Counsel for the applicant, I reserved the matter for determination subject to receiving further submissions from Counsel for the respondents in response to a document of the applicant described as ‘Matters which were the Subject of Submissions [by the respondents] but for which no Direct Evidence can be Found’ (Document 151), by 4 November 2005.
THE ‘NO CASE’ TO ANSWER SUBMISSION
Order 35, Rule 1 of the Federal Court Rules is the source of the power to entertain a ‘no case’ submission without the need to invoke s 79 of the Judiciary Act 1903 (Cth) (Australian Competition and Consumer Commission v AmcorPrinting Papers Group Ltd (2000) 169 ALR 344 at [60] per Sackville J). The general rule of practice is that a ‘no case’ submission will not be entertained or, alternatively, no ruling made unless the moving party elects to call no evidence (Protean (Holdings) Ltd v American House Assurance Co. [1985] VR 187; Stevenson v Barham (1977) 136 CLR 190 at page 202, per Mason and Jacobs JJ) although, the general rule is not an ‘inflexible rule’ (Compaq Computer Australia Pty Ltd v Merry & Ors (1998) 157 ALR 1 at page 7) and not necessarily the ‘right course in every kind of case’ (Parry v Aluminium Corporation [1940] WN 44 at 46 per Goddard LJ). The general rule must ‘give way to particular circumstances’ in the exercise of the discretion (Stevenson v Barham (supra) at page 203, per Mason and Jacobs JJ) and ultimately the matter is one for the discretion of the judge having regard to the just and convenient disposition of the litigation (Protean at page 238 per Tadgell J) or, as French J observes, a function of judicial case management conditioned by the circumstances of the case (J‑Corp Pty Ltd v Australian Builders Labourers Federated Union of Workers (Western Australian Branch) & Ors (No. 2) (1992) 38 FCR 458.
Nevertheless, the generality of the usual practice is well recognised and approved by the High Court (Stevenson v Barham (supra) at page 202; Tozer Kemsley & Millbourn (Australasia’s Asia) Pty Ltd v Collier’s Interstate Transport Services Ltd (1955 – 1956) 94 CLR 384 at pg 402 per Fullagar J), recognised by the Federal Court (James & Ors v Australia and New Zealand Banking Group Ltd (1985–86) 64 ALR 347 per Toohey J at pg 400 (Appendix); Compaq v Merry (supra) at pgs 6 and 7) and applied in State superior courts (see the discussion of the authorities by Finkelstein J in Compaq v Merry (supra) at pages 6 and 7).
The general rule recognises the undesirability of the judge embarking upon an assessment of the evidence and particularly the reliability of witnesses twice in the one proceeding, the importance of avoiding a delay in the conduct of the trial and the utility of avoiding a second trial if a ‘no case’ submission upheld by the trial judge with judgment for the respondent is set aside upon appeal. If the ‘no case’ submission turns solely on a question of law or jurisdiction (Stevenson v Barham (supra)), or the cause of action relied upon by the applicant involves an allegation of fraud or allegations analogous to fraud (ACCC v Amcor (supra)), the respondent (defendant) ought, as a matter of discretion, not be put to an election. If however, the submission involves taking the totality of the evidence of the applicant, assessing that evidence at its highest for the applicant and dealing with a contention by the moving party that the evidence does not support the causes of action pleaded or, alternatively, where it is contended that there is some evidence to support the plaintiff’s claim but the evidence is sufficiently unreasonable that it should be dismissed without calling upon the respondents to adduce evidence, there seems no relevant point of departure from the application of the general rule that the respondents ought to make an election to adduce no evidence before being given leave to make the submission of ‘no case’ to answer (see Residues Treatment Trading Co. Ltd v Southern Resources Ltd (1989) 52 SASR 54 at page 68 per Perry J.
In this matter, the contention of the respondents of ‘no case’ involves an assessment of all of the applicant’s evidence to determine whether the causes of action are established, what inferences might properly be drawn from the facts, whether the evidence of Mr Davis and answers given in cross examination ought to be accepted as to the attitude of the AMIEU in responding to the notices of a stock shortage and whether that conduct reflects an acceptance of a stock shortage, whether the evidence of an expert, Mr Broadway (and his report) ought to be accepted and if not, to what extent can statistical data contained in the report be relied upon, an assessment of what construct applies to the operation of the relevant sections of the Act relied upon by the applicant and in having regard to the differing contentions, whether the evidence establishes the case contended for by the applicant.
The case also involves an assessment of the facts and circumstances concerning 12 individuals and a consideration of each of the factors specifically relevant to each individual. Further, the respondents sought to bring on a notice of motion described at [68] during the trial period notwithstanding the extensive case management of the matter, leading to my observations at [73]. Although the invitation by the respondents to consider that notice of motion does not bear directly upon the question of whether the respondents ought to be put to an election in making a ‘no case’ submission, interruption to the conduct of the trial and the reception of evidence is an important matter. It seemed to me that no useful purpose of any kind would be served by entertaining a ‘no case’ submission involving a consideration of all of the matters I have mentioned without putting the respondents to an election. The inconvenience of assessing all of those matters, ruling upon the question and then receiving evidence from the respondents (if that course emerged) on all matters in controversy and then embarking upon a second assessment of all the evidence seemed to me entirely inappropriate.
Put simply, the parties came to a case managed trial to have a trial and hear all the evidence once. If the respondents wish to contend, in the circumstances of these issues between these parties that ‘no case’ to answer arises on the evidence and as a matter of law, the fair and just disposition of the litigation required the orthodox application of the general rule. No special or differentiating circumstance was identified by the respondents to displace the orthodoxy of the general rule (see Prentice v Cummins (2002) 124 FCR 67 at pgs 93, 94 and 95 and The Trustees of the Property of Cummins v Mary Cummins [2006] HCA 6).
In this case, the respondents were provided with an opportunity to consider the question of the election in a measured way. Rather than require counsel for the respondents, Mr Hatcher, to open his case, upon ruling that an election would be required (and upon Mr Hatcher indicating that the respondents were not prepared to make that election), I adjourned the conduct of the trial until the following morning as Mr Hatcher’s principal witness was not available. Upon the resumption of the hearing the next morning at 10.15am, Mr Hatcher made the election.
Mr Hatcher, having made the election, made extensive submissions in support of the application. Counsel for the applicant responded and Mr Hatcher made submissions in reply. In dealing with the disposition of the matter, I propose to review all of the evidence and the issues with a view to making final dispositive determinations on all matters. In James v ANZ Bank (supra), Toohey J made these observations at pg 400:
‘If a defendant elects not to call evidence, the judge has before him all the evidence upon which he is called to make a decision. Any distinction between the role of the judge in ruling on a no case submission and the role of the judge as an arbiter of fact becomes largely illusory.’
And in Prentice v Cummins (supra), Sackville J made these observations at [110]:
‘In Rasomen Pty Ltd v Shell Co. of Australia Ltd (1997) 75 FCR 216, the Full Court held (at 228) that in addressing a no case submission the function of a judge sitting alone is no different from that which has to be performed by a judge who has heard all the evidence of the parties in the usual way and who has to give final judgment. In particular, where the moving party (in this case the respondents) contends that the evidence does not give rise to the inferences of fact alleged by the opponent (in this case the Trustees), it is appropriate for the trial judge to decide what inferences he or she would draw from the evidence and to act on those conclusions, if necessary to determine finally the issues in the case: Australian Competition and Consumer Commission v Amcor Printing Papers Group Ltd (2000) 169 ALR 344 at 360.’
Accordingly, I propose to address the totality of the evidence, examine the inferences that are open on the evidence, determine whether any inferences can be drawn from the failure by Mr Ramsey to give evidence, assess the submissions put to me concerning the evidence of Mr Davis and Mr Broadway and make dispositive findings. A further question is the extent to which inferences might be drawn from the failure of Mr Ramsey to give evidence in circumstances where the respondents have been put to an election. Since the ‘no case’ submission rests on the grounds I have identified, ‘… it is difficult to understand, as a matter of principle, why, in such a case, once the respondents have made the election not to call evidence, the material to be taken into account should not include any inferences that may be available on the principle of Jones v Dunkel (1959) 101 CLR 298, by reason of the failure to call evidence’: Prentice v Cummins (supra) per Sackville J at [114]. Nevertheless, I propose to analyse the evidence adduced by the applicant, determine what inferences might be drawn from that evidence and determine whether the statutory presumption conferred by s 298V operates. I will then consider, additionally, whether the failure to call evidence might be taken into consideration. In The Trustees of the Property of Cummins v Mary Cummins (supra) the High Court in considering the inferences drawn by Sackville J in Prentice v Cummins (from which the appeal came), was invited to consider the applicability of the reasoning that inferences are available to be drawn by reason of the application of the principles in Jones v Dunkel when the party against whom those inferences might be drawn has elected to adduce no evidence in its case. Their Honours found it unnecessary to embark upon that matter as Sackville J did not err in putting his conclusion on its primary basis unassisted by Jones v Dunkel.
THE EVIDENCE OF THE APPLICANT
Each of the former employees has filed an affidavit in the proceeding. None of the former employees were required for cross‑examination in the course of the applicant’s case. Their evidence is unchallenged and I accept it. The evidence is contained in the affidavit of Blackadder (Exhibit 6), Brooks (Exhibit 7), Campbell (Exhibit 8), Delaforce (Exhibit 9), Forrest (Exhibit 11), Hambly (Exhibit 12), M R McKenzie (Exhibit 13), P F McKenzie (Exhibit 14), Moss (Exhibit 15), Swain (Exhibit 17), J K Young (Exhibit 18), S J Young (Exhibit 19). In addition, there is an affidavit by Justin Davis who is a former Assistant Secretary of the ‘Newcastle and Northern Branch of the AMIEU’, an organisation of employees registered under the Act (‘the Federal Union’) and a former Assistant Secretary of the ‘AMIEU Newcastle and Northern Branch’, an organisation of employees registered under the Industrial Relations Act 1996 (NSW) (‘the State Union’).
There is also an affidavit by Paul Brown who is a Union organiser with each of the two Unions described in [85] and an affidavit by Kathleen May Evans, the Secretary of the Federal Union. Neither Mr Brown nor Ms Evans were required for cross‑examination. Their evidence is unchallenged and I accept it.
Further, there is an affidavit from John Graham Broadway exhibiting a report in which Mr Broadway seeks to express expert opinion based upon analyses of particular data to test whether there was, in the relevant catchment area, a shortage of stock for slaughter in the period leading up to the closure of the plant. The report seeks to address trends emerging from data in the period 13 September 2002 to 17 January 2003 concerning the profile and characteristics of the cattle slaughtered and processed at the abattoir. As to the evidence of Mr Davis, I accept his evidence and on the important question of the cross‑examination of Mr Davis concerning the issue of the stock shortage and the re‑engagement of workers, I will deal with that evidence in the course of dealing with those topics.
The respondents have made a number of objections to paragraphs of all these affidavits and in the case of Mr Broadway, the respondents say that no reliance should be placed upon any expression of opinion on his part on the ground that the report fails to meet the requirements of the Federal Court Practice Direction for the giving of expert evidence, that the report fails to properly deal with sources of information and that Mr Broadway’s reliance upon those sources and the formulation of the report is essentially a piece of advocacy on behalf of the applicant rather than an independent report provided to the Court to assist the Court in the determination of matters in issue.
As I indicated at [81], the parties were content to reserve rulings in relation to objections to evidence to be dealt with in the judgment on the basis previously indicated. The position concerning the evidence of Mr Broadway is, however, dealt with in the body of these reasons. I propose to now deal with the evidence.
THE EVIDENCE RELIED UPON BY THE APPLICANT
I find the facts to be these.
The Industrial Arrangements with Employees Generally
For many years, R J Gilbertson Pty Ltd (‘Gilbertson’) owned and operated the South Grafton Abattoir. In December 1997, Gilbertson closed the abattoir asserting failing profitability and substantial accumulated losses.
In approximately April 1998, the abattoir re-opened under new ownership and under the operational governance of Mr Stuart Ramsey acting on behalf of entities including Ramsey Food Packaging Pty Ltd (‘Ramsey Packaging’), Ramsey Butchering Services Pty Ltd (‘Ramsey Butchering’) and Ramsey Food Services Pty Ltd (‘Ramsey Services’).
Prior to closure, Gilbertson had operated the abattoir in accordance with a ‘certified agreement’. The parent award for the purposes of the certified agreement was the Butchers’ Wholesale (Newcastle and Northern) Award, a New South Wales State Award (‘the State Award’).
Apparently, with a view to achieving greater flexibility in the use of labour than Gilbertson had enjoyed, Stuart Ramsey, prior to re‑opening the abattoir, participated in exchanges commencing in March 1998 with Ms Kathleen Evans, Secretary of the Newcastle and Northern Branch of the AMIEU registered under the Workplace Relations Act 1996 concerning a possible enterprise agreement with the Ramsey employer entities.
The Union proposed certain terms, a formulation for the operation of an incentive or ‘tally’ system of supplemental remuneration and conditions drawn from the State Award all of which would be consolidated and submitted to the New South Wales Industrial Relations Commission for ratification.
No agreement was reached.
Rather, Ramsey Packaging, Ramsey Butchery and Ramsey Services entered into a series of Australian Workplace Agreements (‘AWAs’) with their employees at the various functional levels of operation of the abattoir.
There are many functional activities and a corresponding demarcation of tasks within an abattoir but two of the major functional activities occur on the slaughter floor where an animal is killed and dressed and in the boning room where meat is taken from the bones. Some boning tasks are undertaken within the slaughter room. One such task is the removal of meat from the bones from the neck to the ribs, a task described as ‘hot neck boning’. In each section, employees are allocated to work stations and the carcass is transported to the work station by a moving chain. The number of cattle processed in a day, the speed of the chain and the number and allocation of employees to particular work stations on the chain will largely determine the daily production of product and influence the remuneration of employees.
The daily remuneration of employees on the slaughter floor and in the boning room is made up of a wage component and, importantly, an incentive payment based on a ‘tally system’. Under the tally system, each slaughter person is a member of a team working on the ‘slaughter floor’ or in the ‘slaughter room’. ‘Tally’ means the minimum number of cattle to be processed by each slaughter person each day. Under the prevailing State Award, each beast was allocated a unit value irrespective of the weight of the animal. The unit value was 1 unit for each beast. The daily tally or required slaughter ‘quota’ was 23.1 units (beasts) for each slaughter person. Tally slaughtering for the South Grafton Abattoir is nominally 19 beasts and therefore 19 units but supplemental units due to the advantage of mechanical aids for workers yields minimum beasts for tally of 23.1. Every beast slaughtered in excess of the tally, attracted a payment called ‘overs’ at a rate of 150% of the daily unit rate. Once the number of beasts slaughtered exceeded 46.2 (in unit value), ‘overs’ would then be calculated at 200% of the daily unit rate (‘double overs’). Every member of the team on the slaughter floor had an incentive to maximise the team’s aggregate ‘overs’.
A typical calculation of daily tally entitlements for slaughter persons would be this.
Example
The number of slaughter persons on a team is, for example -
17
Number of cattle processed across all weight ranges by the team
698
Number of equivalent units
698
Minimum number of cattle to be processed per person per day
23.1 units/person
Slaughter person weekly wage
$477.60
Daily wage payment ($477.60 divided by 5)
$95.52 per day
The daily rate per unit constitutes $95.52 divided by 23.1 units
$4.14
All units processed over 23.1 are paid at 150% (subject to any qualifying 200% units) of $4.14, namely
$6.20
The slaughter team (17) processes 698 beasts (units)
total team units
The total units processed per person are the team units (698 units) divided by 17
41.06 units/person
Total units per person (41.06) minus minimum tally units (23.1) constitutes ‘overs’ of 17.96 units per person
17.96 ‘overs’
17.96 units multiplied by the ‘overs’ rate of $6.20 constitutes an amount earned in ‘overs’ per person of
$111.35 ‘overs’
Similarly, employees working in the boning room participated in a tally system. Units would be allocated according to weight ranges for sides of cattle with heavier sides attracting greater units. An example of unit allocations for boning room purposes is this.
Example
Weight Ranges of Cattle Sides
Units of Tally determined by the Award
Postulated Number of Sides Processed for each Weight Range
Total Number of Units
Less than 40kg
2.190
70
153.3
41-50kg
2.190
262
573.78
51-60kg
2.190
524
1147.56
61-70kg
2.190
276
604.44
71-80kg
2.190
118
258.42
81-90kg
2.190
48
105.12
91-100kg
2.415
40
96.6
101-110kg
2.415
58
140.07
111-114kg
2.415
0
0
115-136kg
2.596
0
0
137-159kg
2.776
0
0
160-182kg
2.957
0
0
183-204kg
3.002
0
0
Over 204kg
3.137
0
0
Total
1396
3079.29
On 23 October 2000, Mr Davis formulated correspondence for Mr Moss to send to the office of the Employment Advocate in connection with aspects of his AWA. Mr Davis caused approximately 100 forms to be circulated seeking the appointment by employees of the AMIEU as a bargaining agent in connection with the AWAs (due to generally expire in April or early May 2001) for each employee and reproduced on the back of that form a response to Mr Moss’s letter from the Employment Advocate which, through inadvertence, disclosed the name of Mr Moss. Mr Davis says that as the expiry date for the majority of the AWAs approached, he was a frequent visitor to the abattoir, met workers, Union delegates Delaforce and Moss, members of the consultative committees and Blackadder and Hambly.
Mr Davis deposes to these further events:
(a)in October and November 2001, Mr Davis met with abattoir employees concerning enterprise bargaining proposals of the Ramsey Group of Companies dated 3 and 16 October 2001 and 8 November 2001. Delaforce, Moss and P F McKenzie circulated up to 100 notices of meeting. Mr Davis says he advised extensively and resourced (with materials and comments) employee members of the enterprise bargaining committee (the first consultative committee) and subsequent consultative committees, prepared summaries and reports to workers (3 October and 16 October 2001 and 21 January 2002 and 16 April 2002), sought meetings with Mr Ramsey, notified Mr Ramsey of proposals to attend meetings of abattoir employees, prepared comparisons of wage rates for slaughter-persons, boners, slicers and slaughterhouse labourers under the award and the AWAs;
(b)on 18 January 2002 Mr Davis was present at a hearing before the AIRC of an application by the First, Second and Fourth Respondents and Paul Allen Contracting Services Pty Ltd for certification of version 3 of a proposed workplace agreement pursuant to s 170LK of the Act. The proposed agreement recognised that any employee member of an organisation of employees may request the organisation to represent the person in meetings and confer with the employer about the agreement;
(c)Mr Davis sought leave to intervene on behalf of the AMIEU in the AIRC proceedings, participated in proceedings, engaged in correspondence on 19 February 2002 concerning the proposed certified agreement and attended a meeting with abattoir employer representatives to discuss a memorandum of understanding;
(d)the remaining paragraphs deal with the chronology from April 2002 to August/September 2002 deposing to the hearing before the Full Bench of the AIRC concerning the application for certification of the workplace agreements, meeting with Union members, preparation of comparative tables, the lodging of an application with the AIRC to terminate the AWAs of 127 workers, correspondence with Mr Ramsey and a reply from Mr Ramsey’s lawyers and discussions with Ms Mortimer on behalf of the employer.
Paragraphs 9 to 54 form part of the narrative, are relevant to the issue of whether Mr Ramsey knew of the role of Mr Davis and the AMIEU at the abattoir and the extent to which particular individuals were members of the AMIEU and evidence of secondary facts from which inferences might be drawn concerning the primary facts in issue.
As to paragraph 57, the last sentence pressed by the Applicant is relevant to the issue of the stock shortage.
Stephen Blackadder
Exhibit 6 is the affidavit of Stephen Blackadder sworn on 19 August 2004.
The Respondents object to paragraphs 5, 6, 7 and 8 on the ground of relevance. Those paragraphs explain the events in paragraphs 9 and 10 which are not the subject of objection. The objection is not accepted.
As to paragraphs 12 and 13 challenged on the ground of relevance, paragraph 12 deposes to facts concerning the physical difficulty experienced by Mr Blackadder in rotating his right arm so as to perform a particular class of boning, namely, “hot neck boning”. The paragraph seeks to establish a reason for refusing to do the work. The evidence is arguably relevant to demonstrating or excluding a reason for dismissal. The paragraphs are evidence of secondary facts. Paragraph 13 explains the tasks involved in performing hot neck boning. Both paragraphs are admissible. Similarly, the last sentence of paragraph 15 explains that the tasks attract less remuneration which partly aids the evidence of the character of the tasks. As to paragraph 37, the name of the employer endorsed on Mr Blackadder’s payslips is relevant to the identity of his employer.
Alick Delaforce
Exhibit 9 is an affidavit of Alick Delaforce sworn 24 August 2004. The Respondents object to paragraphs 7 to 68 on the ground of relevance. Paragraphs 24, 25, 38, 39, 40, 44 and 47 are not pressed. Paragraphs 7, 8, 9 and 10 depose to discussions between employer representatives Mr Paul Marshall and Mr Stuart Ramsey and Delaforce in May, June and July 1999 concerning the employer’s practice of averaging “overs” and the operation at that time of the “tally system” which was said by Delaforce to be unfair. Those matters are relevant to facts in issue concerning Delaforce’s dissatisfaction with working conditions. The objection is not accepted.
Paragraphs 11 and 12 are supported by the Applicant on the ground of “tendency evidence”. The evidence is that on 13 August 1999, Delaforce was told by abattoir management to undertake “hot neck boning” for an indefinite period. Delaforce had a conversation with Mr Ramsey and was told that he had been sent hot neck boning because he had complained about doing more work than other boners yet had been paid the same amount of pay. Delaforce says Ramsey told him he would be doing hot neck boning “all the time”. The evidence is relevant to the question of whether Mr Ramsey, confronted with a complaint from an employee concerning conditions, exercised a power to assign a complaining employee to unpleasant tasks to discourage complaint from either that employee or employees generally. The evidence is evidence of a secondary fact from which inferences might be drawn having regard to all of the evidence.
Paragraphs 13, 14 and 15 depose to contextual facts concerning Mr Delaforce’s duties and Mr Delaforce’s participation in AIRC proceedings commenced by Blackadder against the Third Respondent and are relevant.
Paragraph 16 is pressed by the Applicant on the ground of tendency evidence. Paragraph 16 deposes to statements made by Mr Ramsey at a meeting of abattoir workers in the lunchroom of the abattoir on 15 February 2001. A typewritten transcript of the comments is annexed marked “AJD‑3”. Mr Delaforce says he has an independent recollection of the meeting and Mr Ramsey’s statements. Mr Delaforce says he made a tape-recording of what Mr Ramsey said at the meeting. The transcript reveals a number of strident and forthright expressions of opinion by Mr Ramsey about the role and utility of the AMIEU in contributing to an efficient workforce. The question in issue is whether the relevant Respondent engaged in conduct for the reason that particular employees were members of the Union (and in some cases a delegate of the Union) and that particular employees had expressed dissatisfaction with employment conditions at the abattoir consistent with a position taken by the Union to agitate for improved working conditions generally. Strong expressions of anti-Union feeling and hostility towards the Union and Union representatives are relevant to the questions in issue.
Some of the statements are these:
(a)“that slime-bag” [Davis] “bloody slimy”, “he’d give an eel a cold”;
(b)“I said to you before if he [Davis] came back in here there’d be trouble and there’s going to be trouble. Up to this stage it’s been costing me for these three or four fellas and some of the blokes, arseholes, in this bloody room went and lied in court and we’ve got fellas who are not here and being paid”;
(c)“There’s a few slime-bags in the joint and the greater number of you have done the right thing by them so you’re better off to leave and go to leave the rest of us alone so we can work together”. “I’ve been waiting for this bloody slime-bag [Davis] to come back … he always slimes back when he knows I’m in Casino on Wednesday and apparently came in here under the workers’ safety thing”. “As usual he lied, didn’t keep any ethics, because he didn’t really come for that as everyone knows, he came to hand out union forms”. “Now that’s alright, I don’t care who signed them it doesn’t matter, but if you want to negotiate with us and have some meaningful negotiations, the greater would be advised not to be a member of the union”.
(d)“The union I’d say … anyone that’s wanted to come and talk to us has talked to us, we’ve talked to them. I’ve had a couple of witnesses with one arsehole. But that sorted him. I think everyone knows who that is, because he just lies. That’s his problem. And he’s causing you blokes a fair bit of trouble. Now that fella’s come in here yesterday under a reported workers’ safety issue. He come in with arsehole and try and get blokes as members. No need for you blokes to be members. It’ll be a lot bloody fairer if we get rid of those three or four fellas I can tell you. But someone’s got to pay for it and it’s not going to be Stuart any longer. You don’t want some d’head down there telling us what to do and rooting us. You’ve only got to look at the number of abattoirs which have been closed since we opened. Every single one of them under that slime-bag union every single one of them. So if you want to go that way it doesn’t worry me. When the place doesn’t become viable, I’ll bloody close and you people will be paid your entitlements. Then I’ll have to put off the workers and you wouldn’t have a f–g job and that’s what you blokes want to remember. We’ve had a bloody good association here with 98% of the fellas. There’s a few arseholes that like squirming around … and lying to … but everyone knows who they are and I hope they feel uncomfortable and piss off.”
I am satisfied that the statements are relevant and have significant probative value in determining whether it is more likely than not that Mr Ramsey embraces a certain state of mind concerning the role of the Union in seeking to resist the preferred state of industrial conditions between the employer entities and the workforce at the South Grafton Abattoir and the extent to which Union membership by particular individuals informed Mr Ramsey’s state of mind in the events which occurred in 2002. Accordingly, the evidence is admissible.
Paragraphs 17 to 21 form part of a narrative and are admissible.
Paragraph 22 is supported on the ground of tendency evidence. The paragraph restates the effect of the statements made at the meeting on 15 February 2001 for which a transcript is exhibited and refers to “several occasions” at which Mr Delaforce was present when Mr Ramsey said words to the effect “there’s no need to get the Union involved. We can do things together between employer and employees”. These statements are less strident and lack specificity in the sense that no attempt has been made by the deponent to identify the date, time, place or other details of the statements. Accordingly, I am not satisfied that paragraph 22 has significant probative value.
Paragraph 23 goes to the question of dissatisfaction with conditions as do paragraphs 26 to 37. I accept that paragraphs 39 and 40 are contextually relevant to the narrative of events and paragraphs 41 to 45 are relevant to dissatisfaction with conditions. So too is paragraph 48. Paragraph 49 forms part of the narrative. Paragraph 50 is pressed on the ground of tendency. The evidence goes to a meeting held on Friday, 15 February 2002, called by Mr Stuart Ramsey at approximately 3.00pm between abattoir management and employee consultative committee members. Attendees were Morrow, Mortimer, Ramsey, Delaforce, Moss, Bryan Weier, Robert Colling, Steve Beetson, John Broadrick and Paul Marshall. The note of the meeting (AJD-10) notes that Mr Ramsey said he was upset at the fact that the application before the AIRC by the abattoir companies had been opposed. The committee considered the employees should go back to the award. Mr Ramsey said the employees could have their notice now if they went back on the award as the company could not continue. Committee members complained that the men were being paid less than the award. Mr Ramsey said the “company will not be dealing with Mr Davis”. Mr Ramsey said that if the abattoir went back on the award, the abattoir would be finished. Mr Delaforce raised questions about working conditions and payments if the Union agreed not to oppose certification of the workplace agreements. I propose to admit the paragraph as evidence of tendency. I accept that paragraphs 51 to 68 of Mr Delaforce’s affidavit are relevant to dissatisfaction with working conditions and form part of the narrative.
Kathleen May Evans
The Respondents object to all paragraphs of Ms Evans’s affidavit sworn 20 August 2004 (Exhibit 10) on the ground of relevance. I accept that paragraphs 2 to 9 form part of the contextual narrative and I propose to admit paragraph 5 on the ground of tendency evidence.
Gregory Simon Forrest
The Respondents object to paragraphs 7 to 53 of the affidavit of Forrest sworn 20 August 2004 (Exhibit 11) and a part of paragraph 55. I accept that paragraphs 7 and 8 form part of the contextual narrative. Paragraph 9 is relevant to dissatisfaction by Forrest with his conditions as are paragraphs 10 to 29. I propose to admit the paragraphs on the ground of tendency evidence.
Colin James Hambly
The Respondents object to paragraphs 6 to 34 of the affidavit of Hambly sworn 19 August 2004 (Exhibit 12) and paragraphs 42, 43, 46, 48 and 49 on the grounds of relevance and commentary. Paragraph 6 forms part of the contextual narrative. Paragraphs 7 and 8 are not pressed. Paragraph 9 is pressed on the ground of tendency. It deposes to statements by Mr Ramsey saying that “occupational health and safety issues [are] all bullshit and a waste of time. You’re better off cutting up meat and I would be better off out buying meat”. The evidence may be relevant to the question of whether compliance with regulatory requirements and safety standards applicable to a workplace and therefore forming part of working conditions are features of the employment relationship of Mr Ramsey would prefer to ignore (that is, regards as “bullshit”) and therefore relevant to the question of dissatisfaction with working conditions. Paragraphs 10, 11, 12 and 14 form part of the narrative. Paragraph 16 is supported on the ground of tendency and exhibits a letter (CJH‑3) from Ramsey Butchering Services Pty Ltd to Hambly. I propose to admit the evidence.
Paragraphs 17 to 19 are supported on the ground of tendency. I propose to admit those paragraphs going to the tendency of Mr Ramsey to discourage expressions of concern about working conditions. Paragraphs 19, 20, 21 and 22 go to the contextual narrative as does paragraph 23 apart from the first sentence. Similarly, paragraphs 27 to 34 go to the contextual narrative of events. Paragraph 42 deposes to the assertion that Hambly has never been offered work by the abattoir since his dismissal on 1 July 1999 and is admissible evidence of the absence of an offer notwithstanding his allegations of attempts to seek employment.
Michael McKenzie
The Respondents object to the last sentence of paragraph 5, paragraphs 7 to 27, paragraphs 32 and 41 to 45 of the affidavit of Michael Robert McKenzie sworn 20 August 2004 (Exhibit 13) on the grounds of relevance, conclusions and expressions of opinion. By paragraph 5, McKenzie says he did not consent to a change in his employer from the Third Respondent to the First Respondent. McKenzie is entitled to give admissible evidence of whether he gave consent. A question of law might arise as to whether other facts occurred which give rise to another conclusion. Paragraph 7 deposes to statements made by Mr Ramsey. The paragraph is admitted on the ground of tendency. Paragraphs 10 to 15 form part of the contextual narrative. Paragraph 16 deposes to the proposed introduction of a bonus system and a meeting of all employees of the abattoir in April 2002 at which Mr Ramsey said “I am introducing a new bonus system” and “you can either like it or lump it”. I propose to admit the paragraph, taken in conjunction with other evidence of the activity of the AMIEU and Mr Davis on the ground of tendency to demonstrate an attitude of mind that an employee dissatisfied with conditions might be confronted with dismissal. Paragraphs 17 to 20 deal with dissatisfaction with conditions. Those paragraphs are admissible. Paragraphs 21 to 27 deal with the contextual narrative and paragraph 32 (apart from the second sentence) deals with opportunities for employment available to McKenzie. Issues concerning paragraphs 41, 42 and 43 are resolved. Paragraph 44 addresses facts relevant to the allegation of refusal to employ McKenzie.
Paul Francis McKenzie
The Respondents object to paragraphs 7 to 92 of the affidavit of Paul McKenzie (Exhibit 14) on the ground of relevance. Paragraph 7 forms part of the narrative. Paragraph 8 is admissible on the ground of tendency to establish a state of mind of hostility towards the Union and particular Union officials. Paragraph 11 is part of the contextual narrative. Paragraph 12 is admissible on the ground of tendency. Paragraph 13 is admissible on the ground of tendency and Mr Ramsey’s knowledge of Union participation on behalf of abattoir workers. Paragraph 14 is admissible as relevant to dissatisfaction with working conditions. Paragraph 15 is relevant to dissatisfaction with conditions. Paragraphs 16 to 19 are admissible as to tendency or hostility towards the Union. Paragraphs 20 to 27 are admissible as part of a narrative and knowledge of Union membership at the abattoir. Paragraph 28 is admissible as to tendency towards hostility towards the Union. Paragraph 29 is admissible as to tendency. Paragraphs 32 to 35 go to dissatisfaction with working conditions. Paragraph 40 is admissible as to tendency. Paragraphs 42 to 44 form part of the narrative. Paragraphs 45, 46, 47, 49, 51 are admissible as to dissatisfaction with conditions. Paragraphs 52 to 56 form part of the contextual narrative. Paragraphs 57 to 62 are relevant to dissatisfaction with conditions as are paragraphs 63 and 64. Paragraphs 84 and 85 form part of the contextual narrative. Paragraphs 87, 88, 89, 90, 91 and 92 (apart from the third sentence) form part of the contextual narrative.
Trevor Glen Moss
The Respondents object to paragraphs 5 to 44 and paragraph 61 on the ground of relevance and paragraph 45 on the ground that the paragraph asserts an implied conclusion. The affidavit sworn 25 August 2004 is Exhibit 15. Paragraph 5 goes to the alleged change in the employment arrangements and is admissible. Paragraph 6 is admissible as to dissatisfaction with conditions. Paragraph 7 forms part of the narrative. Paragraph 8 is not admissible as to tendency. Paragraphs 9 to 12 form part of the narrative. Paragraph 13 is admissible as to tendency. Paragraph 14 is admissible as to the contextual narrative. Paragraphs 16 and 17 are admissible as to a tendency towards hostility to the Union and Union officials. Paragraph 18 is admissible as to the narrative and events concerning knowledge of Union membership. Paragraph 19 is admissible as to dissatisfaction with conditions and as to tendency. Paragraph 21 is admissible as to tendency. Paragraph 23 is admissible as to dissatisfaction with conditions. Paragraph 24 performs part of the contextual narrative. Paragraph 25 is not admissible as to tendency. Paragraph 26 forms part of the narrative. Paragraphs 29 and 30 are admissible as to tendency. Paragraph 32 forms part of the narrative. Paragraph 33 is admissible as to knowledge of Union membership. Paragraphs 34 and 35 form part of the contextual narrative. Paragraphs 36 and 37 are admissible as to dissatisfaction with conditions. Paragraph 38 forms part of the narrative. Paragraphs 39 and 40 are admissible as to dissatisfaction with conditions. Paragraphs 41 and 42 form part of the narrative. Paragraph 43 goes to dissatisfaction with conditions. Paragraph 45 is admissible in fixing the time of the meeting by reference to the AIRC hearing.
Terrance Anthony Brooks
The Respondents object to paragraphs 7, 8, 9, 11, 16, 25 and 35 on the grounds of relevance, commentary and argumentative matters and paragraphs 41 and 43 on the ground of conclusions. The affidavit of Terrance Brooks sworn 20 August 2004 is Exhibit 7. Paragraph 7 is relevant to the deponent’s dissatisfaction with conditions. Paragraphs 8 and 9 are admissible as to tendency evidence. Paragraph 11 forms part of the narrative. Paragraphs 16 and 25 are not pressed. The second last sentence of paragraph 35 is admissible as to fixing the moment in time of the event. Paragraphs 41 and 43 (to the extent not conceded by the Applicant) is relevant to the contention of a refusal to employ Brooks and the question of compensation payable for Brooks in the event a contravention is established.
Rodger Charles Campbell
The Respondents object to paragraphs 3 (conclusion), 5 (unclear as to the duties asserted), 6 (second sentence – conclusion), 8, 9, 10, 11, 18, 19, 20, 21 and 33 (relevance). As to paragraph 3, Campbell gives direct admissible evidence from his experience. Paragraph 5 is not pressed. Paragraph 6 is admissible evidence as to whether Campbell gave his consent to any change in his employment relationship. Paragraphs 8, 9, 10 and 11 are all supported on the ground of tendency. By itself, those paragraphs are not admissible as to tendency but taken in conjunction with the affidavits at large and the affidavit, in particular, of Delaforce, the paragraphs are admissible as to tendency. The challenged part of paragraph 18 is not pressed. Paragraph 19 taken together with all the evidence is admissible as to tendency and goes to dissatisfaction with conditions. Paragraphs 20 and 21 are admissible as to tendency. The challenged part of paragraph 33 is not pressed.
Paul Gerard Swain
The Respondents object to paragraphs 4 (conclusion), 24 (argumentative) and 29 (relevance) of the affidavit of Paul Swain sworn 19 August 2004 (Exhibit 17). Paragraph 4 is direct evidence of the work Swain says he performed. As to paragraph 24, the first sentence is not pressed but the remaining sentences are relevant to the question of the issue of refusal to employ. Paragraph 29 is not pressed.
John Kevin Young
The Respondents object to paragraphs 3 (conclusion or assumption of fact), 6-31 (relevance), 35 (conclusion, relevance), 38 and 39 (relevance) of the affidavit of John Young sworn 19 August 2004 (Exhibit 18). Paragraph 3 is an explanation of the commencement of employment and forms part of the narrative. Paragraph 6 deposes to Young’s membership of the AMIEU. Paragraphs 7, 8, 9 and 10 deal with conditions, issues surrounding conditions and dissatisfaction with conditions. Paragraphs 11 and 12 form part of the contextual narrative. Paragraph 13 is not pressed. Paragraph 14 deposes to meetings of workers informed of considerations within the first consultative committee of some aspects of working conditions. Paragraphs 15 and 16 form part of the narrative. Paragraph 17 deposes to facts relevant to dissatisfaction with conditions. Paragraphs 18 and 19 form part of the contextual narrative. Paragraph 20 goes to dissatisfaction with conditions, knowledge of Union membership and, in conjunction with all of the evidence, tendency. Paragraphs 21, 22 and 23 form part of the narrative. Paragraphs 24 and 25 go to dissatisfaction of conditions. Paragraphs 26 and 31 are not pressed. The parts of paragraph 35 to which objection is taken are not pressed. Paragraphs 38 and 39 go to the issue of refusal to employ and compensation.
Susan Jane Young
The Respondents object to paragraphs 6 (relevance), 12 to 22 (relevance), 34 (part only – relevance), 35 (relevance) of the affidavit of Susan Young sworn 19 August 2004 (Exhibit 19). Paragraph 6 goes to the employment relationship. Paragraphs 12 to 22 are admissible as to dissatisfaction with working conditions. Paragraphs 34 and 35 are not pressed.
Karen Leigh Mitchell
Exhibit 21 is the affidavit of Karen Leigh Mitchell sworn 10 October 2005. No objections are raised to this affidavit.
Raelene Kim Olive (Campbell)
The Respondents object to the second sentence of paragraph 5 in the affidavit of Raelene Olive sworn 19 August 2004 (Exhibit 16). That sentence exhibits a handwritten note of the deponent of a conversation with Ms Renee Mortimer deposed to in paragraph 4. The note is relevant to the matters deposed to in paragraph 4 and is admissible.
Paul Brown
Exhibit 2 is the affidavit of Paul Brown sworn 10 March 2004. No objections are raised in relation to this affidavit.
22
14
0