McMaster v Qube Ports Pty Ltd

Case [2015] FCA 1385

FEDERAL COURT OF AUSTRALIA

McMaster v Qube Ports Pty Ltd [2015] FCA 1385

Citation: McMaster v Qube Ports Pty Ltd [2015] FCA 1385
Parties: TORREN MCMASTER v QUBE PORTS PTY LTD
File number: VID 1162 of 2013
Judge: NORTH ACJ
Date of judgment: 4 December 2015
Catchwords: INDUSTRIAL LAW – Adverse Action – Dismissal – Exercise of workplace right under s 340(1)(a)(ii) and s 341(1)(c) of the Fair Work Act 2009 (Cth) – Exercise of workplace right under s 25 of the Occupational Health and Safety Act 2004 (Vic) – Exercise of workplace right to complain about safety – Exercise of workplace right to take reasonable care for own health and safety – Stevedore refusal to upgrade duties from Grade 3 to Grade 5 – Recognised and required competency – Work for which the employee is appropriately skilled – Right to refuse to upgrade under Qube Ports Pty Ltd (TT Line VIC & TAS) & Maritime Union of Australia Enterprise Agreement 2012 and Stevedoring Industry Award 2010 – Discrimination between employee and other employees of the employer – Adverse action contrary to s 342(d) of the Fair Work Act 2009 (Cth) – Reason for dismissal – Mistake of law – Mistake of law distinguished from mistake of fact – Employer acts for proscribed reason where employer has mistaken view about the law – Employer dismissed employee because employer made a mistake of law in concluding the employee did not have a workplace right – Ignorance of law no defence to action contrary to law – Knowledge of essential elements of factual basis of contravention
Legislation: Fair Work Act 2009 (Cth), ss 12, 340(1), 341(1), 342, 360, 361(1)
Occupational Health and Safety Act 2004 (Vic), s 25
Cases cited: Barclay v The Board of Bendigo Regional Institute of Technical and Further Education (2011) 191 FCR 212; [2011] FCAFC 14
Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500; [2012] HCA 32
Construction, Forestry, Mining and Energy Union v Anglo Coal (Dawson Services) Pty Ltd [2015] FCAFC 157
Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (2014) 253 CLR 243; [2014] HCA 41
Construction, Forestry, Mining and Energy Union v Endeavour Coal Pty Ltd (2015) 231 FCR 150; [2015] FCAFC 76
Giorgianni v R (1985) 156 CLR 473; [1985] HCA 29
Johnson v Youden (1950) 1 KB 544; [1950] 1 All ER 301
Musgrove v Murrayland Fruit Juices Pty Ltd [1980] FCA 64; (1980) 47 FLR 156
Date of hearing: 13 - 17 and 31 July 2015
Date of last submissions: 11 August 2015
Place: Melbourne
Division: FAIR WORK DIVISION
Category: Catchwords
Number of paragraphs: 242
Counsel for the Applicant: Mr M Champion
Solicitor for the Applicant: Aitken Partners
Counsel for the Respondent: Mr M Follett
Solicitor for the Respondent: Herbert Smith Freehills

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

FAIR WORK DIVISION

VID 1162 of 2013
BETWEEN:

TORREN MCMASTER
Applicant
AND:

QUBE…

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AGLC
McMaster v Qube Ports Pty Ltd [2015] FCA 1385
Case
[2015] FCA 1385
Decision Date

CaseChat Overview and Summary

The applicant, Torren McMaster, sought relief under the Fair Work Act 2009 (Cth) in relation to his dismissal by the respondent, Qube Ports Pty Ltd. The central issue in the case was whether Mr McMaster's dismissal was unlawful because it contravened the Act by being taken for a reason connected to his exercise of workplace rights under the Fair Work Act and the Occupational Health and Safety Act 2004 (Vic). Specifically, the court needed to determine if Mr McMaster's refusal to upgrade his duties from a Grade 3 to a Grade 5 stevedore, based on safety concerns and competency of fellow employees, was protected under these legislative frameworks. Additionally, the court had to assess if the dismissal constituted adverse action, as defined by the Act, due to the exercise of these rights.

The court found that Mr McMaster had a legitimate right to refuse the upgrade under both the Qube Ports Pty Ltd (TT Line VIC & TAS) & Maritime Union of Australia Enterprise Agreement 2012 and the Stevedoring Industry Award 2010. It was established that the refusal to upgrade was not only within his contractual rights but also aligned with his obligations under occupational health and safety legislation to take reasonable care for his own health and safety. The court further determined that Mr McMaster's dismissal was indeed adverse action as it was taken because he exercised these rights. The employer's mistaken belief that the employee did not have these rights did not negate the contravention of the Act. The court highlighted that ignorance of the law is no defence to actions that contravene statutory provisions.

In conclusion, the court ruled that Mr McMaster's dismissal was unlawful as it was based on the employer's mistaken understanding of the employee's legal rights. The court ordered the hearing to be adjourned to a directions hearing for further proceedings.

Orders

Orders of the court

1. The hearing is adjourned to a directions hearing fixed for Wednesday 3 February 2016, at 10.15am.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Three officers of Qube gave evidence for the respondent. Mr Michael Sousa is one of the two directors of Qube. He has held that position for eight years and has been with Qube for 19 years. Mr David Saul was at all relevant times in 2013 the State Manager for Victoria and Tasmania for Qube. He commenced in that role in March 2013. Mr Andrew Davies was in 2013 the Operations Manager for Qube for Station Pier and Devonport. He commenced in that role in March 2012. THE FACTSMr McMaster's Terms of Employment Mr McMaster started work with Qube in September 2007. From December 2007 he worked at Station Pier as part of a team which moored, loaded and unloaded the Spirit of Tasmania vessels. In the course of his employment Mr McMaster entered into a written employment agreement dated 12 January 2011. Under that agreement he was promoted to the G3 position from 17 January 2011. It was common ground that the terms of Mr McMaster’s employment were also governed by the Qube Ports Pty Ltd (TT Line VIC & TAS) & Maritime Union of Australia Enterprise Agreement 2012 (the Enterprise Agreement). The Enterprise Agreement also provided that the terms of the Stevedoring Industry Award 2010 (the Award) were incorporated into the Enterprise Agreement. It also specified at cl 5.2 that in the case of inconsistency the terms of the Enterprise Agreement prevailed. The work of stevedores employed by Qube at Station Pier involved the loading onto and the unloading from the Spirit of Tasmania of freight, semi-trailers, excavators, other heavy machinery, and passenger cars. The stevedores usually worked in a gang of 10 made up of one G6, two G5s, five G3s, and two preparation workers. The G5 fulfilled a foreman role and directed the G3s in their work. The G3s drove the tow vehicles called bolnas which link to trailers for the purpose of towing them on and off the ship. The G3s also directed traffic and helped out the G5s. The eight stevedore gang members apart from the preparation members worked split shifts from 5.30 am to 8.30 am and from 3.30 pm until 7.30 pm. There were two gangs. Each gang worked a four day shift and then had four days off. Mr McMaster's safety concerns Mr McMaster gave evidence about his concerns for safety and about the occasions when he reported those concerns to Qube. His concern for safety issues was heightened by an accident which occurred at work on Good Friday 2010 which resulted in serious injury to his nephew, Kane Barnett, who worked for Qube at Station Pier. After a bolnas was unhitched from a trailer, a trestle struck Mr Barnett and pinned him against a wall. In 2012 there was a meeting of both gangs with management at which there were complaints about the level of fumes on the deck of the ship from the vehicles being moved around. A full load of vehicles is around 300 passenger cars, 60 containers, and 40 semi-trailers. Qube had the fume levels measured but did not provide the results to the employees. Mr McMaster then acquired a device for measuring carbon monoxide and placed it on the ship. He told Mr Harwood, the Health and Safety Manager at the time, that the reading was pretty dangerous. He asked Qube to provide breathing apparatus. Mr Harwood arranged for paper masks to be supplied. Following a Worksafe investigation, on 20 December 2012, Qube, under the name of Mr Davies, published a safety alert containing standards for the management of intermittent exposure to vehicle emissions. The standard provided that where employees found they were being, or likely to be, impacted by emissions, they should report this concern to the shift manager and remove themselves from the work area. Mr McMaster said that his gang stopped work about three times in response to these conditions. These incidents were reported to Mr Brad Ryan, the Assistant Shift Manager.

Evidence

Evidence Before The Court

Mr Barron’s employment was not terminated, but he was provided with a final written warning dated 25 July 2013. Mr Burke’s employment was not terminated, but he was provided with a final written warning dated 9 August 2013. Mr Cooper’s employment was not terminated, but he was provided with a final written warning on 27 August 2013, and later ceased employment on terms agreed between him and Qube. THE ORAL EVIDENCE OF MR MCMASTER The course of events in issue was extensively documented. The documents recorded the reasons that Mr McMaster gave for refusing to upgrade on 7 June 2013. Mr McMaster’s oral evidence elaborated on these issues and explained his reasons in his own words. Mr McMaster described the effect on workers having to work among the exhaust fumes of motor vehicles whilst loading and unloading the ship. He agreed that Qube had commissioned carbon monoxide testing which occurred in November 2012 but said that the employees were not given the results. Mr McMaster said that he was concerned about the dangers of working with others who lacked experience. In particular he referred to Mr Shane Courtney, Mr Robbie Carnovale, Mr Darren McIntyre, Mr Brad Davis and Mr George Giantsis. In May 2013, Mr Carnovale had been employed for around 20 months, Mr McIntyre and Mr Courtney for around 14 months and Mr Giantsis for around seven months. The incidents involving Mr Carnovale and Mr McIntyre, outlined at [32] and [33] above, occurred within six weeks of the meeting held on 16 May 2013. Mr McMaster believed that as a G5 he was responsible for any accidents or incidents which occurred under his supervision. He gave evidence in cross examination as follows: Well, can you explain to me why it’s any less safe to perform the G5 directing role than the G3 directing role? ......as I understand it, you expressed a concern about working with a number of employees with poor levels of skills and experience? ……Well, basically, the G6 foreman and the G5 foreman were held responsible in regards to any incidents on that ship.All right. Now, when you say “held responsible”, what do you mean by that? Well, I mean if – if anything occurred, the G6 and G5 foreman actually had signed off on a document stating that they are held responsible for anything happening on the ship. So… What document is that? I’m not sure, sir, but I remember speaking to one of the G6s and they had a meeting – the G6s and the G5s had had a meeting and they would now – now be held responsible for anything that happened. One of the – one of the circumstances was when Dave Saunders was actually directing as a G6 and Shane Courtney pulled out the reefer cord. Now, they also – instead of just taking Shane Courtney who had the incident up to the office to be drug and alcohol tested, they also took Dave Saunders with them. That proved that a G6 is now held responsible as well.Right. Now, do I take it you mean that if they made a mistake and damaged something, that because you were responsible for supervising them, it would be partially regarded as your fault for a lack of supervision, so to speak? No. Mr Follett, it’s not just a – on those ships, it’s not a minor mistake. As I said, I’ve Well, I didn’t ? I’ve witnessed it before.I didn’t ask you anything about a minor mistake. I asked you ? But there’s not any minor mistakes. These are major mistakes. I’m not going to be responsible for someone getting crushed by a container because the – the employees weren’t competent or weren’t trained up enough to perform their duties.And so perhaps if you can – I will go back to my question, which was did you think that Qube would make you responsible if there was a mistake from one of these employees and it caused any damage? Yes, I did.

Decision

Reasons for decision

However, the reason for the dismissal established by Qube as part of its case, namely, that Mr McMaster refused the direction to upgrade, gives rise to the question whether that reason was a prohibited reason for the purpose of s 340(1)(a) of the Act. The resolution of that question in turn depends on whether Mr McMaster had a right to refuse to upgrade under the Enterprise Agreement by which he was employed. I have concluded that Mr McMaster had the right to refuse to upgrade. For Mr Sousa to dismiss him for exercising that right contravened s 340(1)(a) of the Act. THE STRUCTURE OF THESE REASONS FOR JUDGMENT These reasons for judgment are arranged in sections which deal with the witnesses who gave evidence at the hearing, the findings of fact made by the Court, the oral evidence of Mr McMaster, and the oral evidence of Mr Sousa. Then, the reasons for judgment consider the following four questions:(1)Did Mr McMaster exercise a workplace right to complain about safety under s 341(1)(c)?(2)Did Mr McMaster exercise a workplace right under s 25 of the OHS Act?(3)Did Mr Sousa dismiss Mr McMaster because Mr McMaster exercised the workplace right to complain about safety or the workplace right to take reasonable care for his own health and safety?(4)By dismissing Mr McMaster because he refused to upgrade did Qube take adverse action against Mr McMaster because he exercised a workplace right? THE WITNESSES Mr McMaster and three of his workmates, Mr Samuel Burke, Mr Robert Vranesic and Mr Richard Lunt, gave evidence for the applicant. Mr Burke was employed as a G3 on the same gang as Mr McMaster. Like Mr McMaster he refused to upgrade to G5 on 7 June 2013. But he was not dismissed. Instead he was given a final warning. Mr Vranesic worked for Qube or its predecessors since 1997. He was a G6 from about 2004/5 and worked on the same gang as Mr McMaster at various times. Mr Lunt worked for Qube or its predecessors since about 1998. He was dismissed on 27 May 2013. For around two years before his dismissal he had worked as a G5. Mr McMaster worked on the same gang in those years and they were friends. Three officials of the Maritime Union of Australia (MUA) also gave evidence for the applicant. Mr Warren Smith is and was in 2013 the National Secretary of the MUA. Mr Kevin Bracken was the Branch Secretary of the Victorian Branch of the MUA in 2013. Mr Robert Patchett is and has been for the past 13 years an Assistant Branch Secretary of the Victorian Branch of the MUA. Three officers of Qube gave evidence for the respondent. Mr Michael Sousa is one of the two directors of Qube. He has held that position for eight years and has been with Qube for 19 years. Mr David Saul was at all relevant times in 2013 the State Manager for Victoria and Tasmania for Qube. He commenced in that role in March 2013. Mr Andrew Davies was in 2013 the Operations Manager for Qube for Station Pier and Devonport. He commenced in that role in March 2012. THE FACTSMr McMaster's Terms of Employment

Ratio Decidendi

Legal Principle Established

By a letter dated 12 June 2013, Mr Sousa threatened proceedings against the MUA and Mr Smith if they continued to publish the material which Mr Sousa said contained false, misleading and damaging information. Reconsideration of the Terminations Mr Sousa left for a short trip to Canada. Whilst he was away an agreement was reached on 14 June 2013 between Mr Smith, and Mr Don Smithwick, the Managing Director of Qube, that the four employees would not be terminated but suspended on pay and they would attend meetings in the following week where the circumstances of their terminations would be considered in full. Mr Smithwick advised Mr Smith that Mr David Reid, the Workplace Relations Manager for Qube, would run the process. Mr Sousa gave evidence in cross examination that Mr Noel Pearse, General Manager HR/IR, ran the process. However, the weight of the evidence, including Mr Smithwick’s email of 14 June 2013 to Mr Smith, establishes that Mr Reid was actively coordinating the process, in consultation with Mr Pearse and others. On 18 June 2013, Mr Reid sent an email to Mr Saul, Mr Davies, and Mr Harwood concerning arrangements for the meetings including that Mr Saul would conduct the meetings, that each employee would be interviewed individually, and that Mr Davies should prepare a list of relevant questions and provide a chronology of events. It is noteworthy that Mr Harwood was included in this process. He was the Health and Safety Manager. His inclusion suggests attention to the safety issues raised by Mr McMaster. The email was copied to Mr Sousa. It contained the following:It is very important that this meeting be strictly confined to one issue ie failure to comply with a lawful instruction. If safety matters are raised, as they undoubtedly will be, they should be played with a “dead bat”. We will have plenty of time to discuss systemic issues at TT Line in coming days and weeks. On 20 June 2013, Mr Davies sent to Mr Reid, Mr Saul, and Mr Harwood, copied to Mr Sousa and Mr Noel Pearse, a chronology of events and an overview of each of the four employees. He also wrote:It should be made clear that prior to the 07/06/13, there was a G6 & G5 available (D. Saunders & B Haintz), and the job could keep operating sufficiently. On the 07/06/13, B. Haintz was on annual leave and without the G5, the operation could be severely impacted and the employees understood this. The overview relating to Mr McMaster read as follows:Torren McMasterŸInitial Meeting on 30/05/13ŸAD asked the reason for not upgrading, TM said that everything is done for no reward. TM said that the other employees are incompetent and he doesn’t want to take responsibility for them.ŸTrained on SWMS on 29 April 2010 and refreshed on 19 September 2012ŸOn 24/05/13, Steve Reid tool boxed all employees that there was an opportunity to review and to through the SWMS after discharge. No employees attendedŸRefused to be refreshed /go through SWMS on 01/06/13 & 02/06/13ŸPerformed position on 81 occasions in last 12 monthsŸAsked to perform G5 role on 31/05/13 and did.ŸConfirmed with David Saul on 07/06/13 PM, more than experienced to do the job