McNamara v Era Pacific Pty Ltd

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FEDERAL CIRCUIT COURT OF AUSTRALIA

McNamara v Era Pacific Pty Ltd [2021] FCCA 1689

File number(s): BRG 465 of 2020
Judgment of: JUDGE TONKIN
Date of judgment: 23 July 2021
Catchwords:

INDUSTRIAL LAW – general protections – whether employee exercised workplace right under subsection 341 (1) of the Fair Work Act 2009(Cth) – whether adverse action taken because employee exercised a workplace right – whether employer discharged presumption imposed by subsection 361 (a) of the Fair Work Act 2009(Cth) – whether employer contravened section 340 of the Fair Work Act 2009(Cth).

INDUSTRIAL LAW – remedies – adverse action – compensation awarded to applicant pursuant to section 545 of Fair Work Act 2009(Cth) – pecuniary penalties awarded and ordered to be paid to the applicant pursuant to section 546 of the Fair Work Act 2009(Cth)

Legislation:

Crimes Act 1914, s.4AA

Fair Work Act 2009 (Cth), 12,14, 117, 340, 340(1), 341(1), 360, 361(1), 539(2), 545(1), 545(2)(b), 546(1), 546(3)(c), 546(5), 547(1), 547(3), 550

Federal Court of Australia Act 1975 (Cth), ss. 51A, 52

Federal Court Rules 2011 (Cth), r.39.06

Work Health and Safety Act 2011 (Qld), s84

Cases cited:

Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union[2017] FCAFC 113

Construction Forestry Mining and Energy Union v De Martin & Gasparini Pty Ltd (No 2) [2017] FCA 1046

Ingersole v Castle Hill Country Club Limited [2014] FCCA 450

Roohizadegan v TechnologyOne Limited (No 2) [2020] FCA 1407

Tran v Kodari Securities Pty Ltd [2019] FCA 968

Number of paragraphs: 137
Date of hearing: 20 April 2021
Place: Brisbane
Counsel for the Applicant: Ms Riedel
Solicitor for the Applicant: W W C Lawyers
Solicitor for the Respondents: The Respondent appeared on his own behalf

ORDERS

BRG 465 of 2020
BETWEEN:

MICHAEL MCNAMARA

Applicant
AND:

ERA PACIFIC PTY LTD

First Respondent

MACLOLM LIGHTFOOT

Second Respondent

ORDER MADE BY:

JUDGE TONKIN

DATE OF ORDER:

23 JULY 2021

THE COURT DECLARES THAT:

1.The First Respondent ERA Pacific Pty Ltd contravened subsection 340 (1) of the Fair Work Act 2009 (Cth) on 18 June 2020 in taking adverse action against the applicant Michael McNamara when the First Respondent terminated the applicant’s employment because he exercised a workplace right.

2.The Second Respondent Malcolm Lightfoot was involved within the meaning of section 550 of the Fair Work Act 2009 (Cth) on 18 June 2020 in the contravention of subsection 340 (1) of the Fair Work Act 2009 (Cth) by the First Respondent taking adverse action against the applicant Michael McNamara when the Second Respondent acting on behalf of the First Respondent terminated the applicant’s employment because he exercised a workplace right.

THE COURT ORDERS:

3.Pursuant to section 545 (2) (b) of the Fair Work Act 2009 (Cth) within 60 days the First and Second Respondents shall pay compensation to the applicant in the amount of $19,463.55.

4.Pursuant to subsection 547 (1) of the Fair Work Act 2009 (Cth) the First and Second Respondents shall pay interest with respect to Order 3…

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Details
Case
[2021] FCCA 1689
Decision Date

CaseChat Overview and Summary

In *McNamara v Era Pacific Pty Ltd*, the applicant, Michael McNamara, alleged that his employer, Era Pacific Pty Ltd, and its sole director, Malcolm Lightfoot, took adverse action against him in contravention of section 340 of the *Fair Work Act 2009* (Cth). Mr McNamara contended that his dismissal on 18 June 2020 was because he exercised a workplace right, specifically the right to refuse to perform work that would expose him to a safety risk, as provided by section 84 of the *Work Health and Safety Act 2011* (Qld). He sought compensation and the imposition of pecuniary penalties for these alleged breaches.

The court was required to determine whether Mr McNamara exercised a workplace right under subsection 341(1) of the *Fair Work Act 2009* (Cth), whether adverse action was taken against him because he exercised such a right, and whether the respondents discharged the presumption imposed by subsection 361(a) of the Act. Ultimately, the court had to decide if Era Pacific Pty Ltd, through the actions of Mr Lightfoot, contravened section 340 of the *Fair Work Act 2009* (Cth).

The court found that Mr McNamara possessed a workplace right under the *Work Health and Safety Act 2011* (Qld) to refuse work posing a serious risk to his health and safety, and that this right was a workplace law for the purposes of the *Fair Work Act 2009* (Cth). It was not disputed that dismissal constituted adverse action. Applying the principles from *Ingersole v Castle Hill Country Club Limited*, the court noted that once the applicant establishes the existence of a workplace right and that adverse action was taken, the onus shifts to the respondent to prove that the action was not taken for the prohibited reason. The court declared that Era Pacific Pty Ltd contravened subsection 340(1) of the *Fair Work Act 2009* (Cth) by terminating Mr McNamara's employment because he exercised a workplace right. Furthermore, Malcolm Lightfoot was found to be involved in this contravention.

Consequently, the court ordered Era Pacific Pty Ltd and Malcolm Lightfoot to pay compensation to Mr McNamara totalling $19,463.55, plus interest of $740.95. Era Pacific Pty Ltd was also ordered to pay $1372.04 to Mr McNamara's nominated superannuation fund. Pecuniary penalties were imposed, with Era Pacific Pty Ltd ordered to pay $6600 and Malcolm Lightfoot $1320, with both respondents being jointly and severally liable for these amounts. A portion of these penalties was to be paid directly to the applicant, with the balance to be paid to the Consolidated Revenue Fund of the Commonwealth.

Orders

Orders of the court

ORDERS

BRG 465 of 2020

BETWEEN:

MICHAEL MCNAMARA

Applicant

AND:

ERA PACIFIC PTY LTD

First Respondent

MACLOLM LIGHTFOOT

Second Respondent

ORDER MADE BY:

JUDGE TONKIN

DATE OF ORDER:

23 JULY 2021

THE COURT DECLARES THAT:

1. The First Respondent ERA Pacific Pty Ltd contravened subsection 340 (1) of the Fair Work Act 2009 (Cth) on 18 June 2020 in taking adverse action against the applicant Michael McNamara when the First Respondent terminated the applicant’s employment because he exercised a workplace right.

2. The Second Respondent Malcolm Lightfoot was involved within the meaning of section 550 of the Fair Work Act 2009 (Cth) on 18 June 2020 in the contravention of subsection 340 (1) of the Fair Work Act 2009 (Cth) by the First Respondent taking adverse action against the applicant Michael McNamara when the Second Respondent acting on behalf of the First Respondent terminated the applicant’s employment because he exercised a workplace right.

THE COURT ORDERS:

3. Pursuant to section 545 (2) (b) of the Fair Work Act 2009 (Cth) within 60 days the First and Second Respondents shall pay compensation to the applicant in the amount of $19,463.55.

4. Pursuant to subsection 547 (1) of the Fair Work Act 2009 (Cth) the First and Second Respondents shall pay interest with respect to Order 3 in the amount of $740.95 within 60 days.

5. The First Respondent shall pay to the superannuation fund nominated by the applicant the sum of $1372.04.

6. Pursuant to section 546 of the Fair Work Act 2009 (Cth) within 60 days the First Respondent shall pay a penalty of $6600 for the contravention set out in the declaration.

7. Pursuant to section 546 of the Fair Work Act 2009 (Cth) within 60 days the Second Respondent shall pay a penalty of $1320 for the contravention set out in the declaration.

8. The First and Second Respondents be jointly and severally liable to pay the amounts set out above.

9. Any amount paid personally by the Second Respondent in respect of the liability for the penalty of the First Respondent under Order (6) hereof is to be credited against the Second Respondent’s liability in Order 7.

10. Pursuant to subsections 546 (3) of the Fair Work Act 2009 (Cth) with respect to the penalties referred to in Orders (6) and (7) an amount of $1320 shall be paid by the Respondents directly to the applicant with the remaining balance to be paid to the Consolidated Revenue Fund of the Commonwealth within 60 days of the date of this order.

11. The applicant has liberty to apply on seven days’ notice in the event that there is a failure to comply with any of the preceding orders.

Background

Background to the litigation

Between 2012 and 18 June 2020 the applicant Michael McNamara worked for ERA Pacific Pty Ltd (“ERA). The applicant alleges that his employer took adverse action against him in contravention of section 340 of the Fair Work Act 2009 (Cth) (“FWA”). He contends that his dismissal was in contravention of a number of general protections provided for under the FWA and alleges that he was dismissed from his employment because he exercised a workplace right. In particular he alleges that he was dismissed because he exercised a workplace right to refuse to perform work that would expose him to a safety risk. He sought orders for compensation and the imposition of a pecuniary penalty for alleged breaches of the FWA.AGREED FACTS The applicant commenced employment with the first respondent ERA PACIFIC PTY LTD (“ERA”) as a casual scaffolder in or around 2012 (employment contract). His employment contract was varied on or about 1 January 2019 when the applicant’s employment with ERA was converted to a permanent full time role as a truck driver and scaffolder. The applicant was a national system employee of the first respondent at all times between 2012 and 18 June 2020 as that term is defined in section 13 of the FWA. The applicant was entitled to the benefit of the National Employment Standards as contained within Part 2 -2 of the FWA at all times between 2012 and 18 June 2020. At all relevant times ERA PACIFIC PTY LTD:(a)is and was a “constitutional corporation” within the meaning of section 12 of the FWA;(b)is a corporation duly incorporated in accordance with law, capable of suing and being sued and has been since 16 June 2004;(c)is a national system employer as that term is defined in section 14 of the FWA;(d)operated at the relevant time and continues to operate a business in the scaffolding industry trading as “Pacific Scaffolding” with its registered office located at 72 Junction Road, Morningside in the State of Queensland; and(e)employed and continues to employ individuals. The second respondent (Malcolm Lightfoot) was at the relevant time and is: (a)the sole director of ERA;(b)a person responsible for the operation and management of ERA since 24 August 2010; and(c)a person responsible for ensuring that ERA complied with its legal obligations. At all relevant times Ashley Thezise was and has been a shareholder of ERA. He was the applicant’s supervisor. In about April 2020 the applicant was directed by the second respondent to collect from the Port of Brisbane a steel beam and deliver it to the client’s premises being a residential block at 86 Oxford Street Bulimba. Upon arrival at the client’s premises the applicant observed that the site was a steep, narrow, sloping block and performance of the task would be difficult. The applicant contacted Mr Trezise for advice about performing the task and Mr Trezise attended the client’s premises and assisted the applicant perform the task. The applicant and Mr Trezise discussed performance of the task after it had been completed and they agreed that performance had been difficult.

Evidence

Evidence Before The Court

The matter was heard on 20 April 2021. The applicant was represented by Counsel and the second respondent appeared on his own behalf. Counsel for the applicant sought to rely on an amended statement of claim filed on 20 April 2021 discussed at length and not opposed by the second respondent. On 6 April 2020 the Court received a document signed by both parties identifying the following issues:(a)Whether the task performed by the applicant in April 2020 to the client’s premises required the applicant to manoeuvre close to overhead electrical power lines and was dangerous and involved safety risks;(b)Whether the applicant and Mr Trezise discussed the delivery of the steel beam in April 2020 to the client’s premises and agreed that the performance of the task involved risks to their health and safety which were unacceptable and whether the performance of the task took a prolonged period of time and whether the performance of the task was not profitable and the respondents would not make any further deliveries to the client’s premises because of safety issues;(c)Whether the applicant and Mr Trezise made a decision not to make further deliveries to the client’s premises and whether that was communicated to the respondents;(d)Whether performance of the task or one similar (delivering the steel beam to the client’s premises and unloading it from the applicant’s truck) gave rise to a concern on the applicant’s behalf that to carry out the task (or similar task) would expose him to a serious risk to his health and safety emanating from an immediate or imminent exposure to a hazard in accordance with section 84 of the WHSA;(e)Whether the applicant was told he had to deliver the steel beam to the client’s premises on 18 June 2020;(f)Whether the applicant was entitled to voice his concern and reluctance to deliver the steel beam to the client’s premises on 18 June 2020;(g)Whether the applicant exercised a workplace right and whether the complaint or inquiry in relation to the applicant’s employment was made to Mr Lightfoot and involved the applicant initiating or participating in a process under a workplace law;(h)Whether the applicant’s employment was terminated in response to the complaint or refusing to pick up the steel beam;(i)Whether the respondents contravened section 340 of the FWA. EVIDENCEMichael McNamara In his affidavit Mr McNamara deposed that he previously held licences for intermediate scaffolding work and high risk work including a confined spaces certificate. He worked as a scaffolder for most of his working life. In early 2000 he commenced work as a scaffolder for Skyhook Scaffolding then worked at Redjak removing asbestos. On 19 June 2013 he commenced work with ERA initially employed as a scaffolder. He worked on both commercial and residential sites in Brisbane, the Gold Coast and Toowoomba. In June 2018 his position with ERA changed from scaffolder to heavy rigid crane truck driver. He was then employed as a permanent full time employee working 38 hours per week. He drove an Iveco heavy rigid crane truck owned by ERA and was required to transport scaffolding equipment to job sites. The truck measured about 11 metres long and was 3.8 to 4 metres wide. He was one of two people with a licence to drive that truck.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

In Ingersole v Castle Hill Country Club Limited [2014] FCCA 450 (11 March 2014) Judge Barnes discussed the approach to claims of adverse action at [127] - [129] and said as follows:“[127] Section 340 is in Part 3.1 of the Act. It proscribes taking action against a person “because” that person has or had a workplace right or for one of the other specified reasons associated with the exercise or proposed exercise of a workplace right by that person. An object of this Part of the Act is to protect workplace rights and to provide “effective” relief to those adversely affected by reason of holding or exercising such rights (see s.336). The Applicant must establish objectively that she had the asserted workplace right and that adverse action was taken against her (see Wolfe v Australia and New Zealand Banking Group Limited[2013] FMCA 65 at [72]). It is then presumed, unless the Respondent proves otherwise, that the alleged adverse action was taken for the asserted prohibited reason (see ss.360 and 361).[128[ The requirement that the applicant establish matters objectively means that she must first:“...prove the existence of objective facts which are said to provide a basis for the alleged adverse action, before the onus shifts to the employer in respect of the prohibited reason...It is not sufficient for [the Applicant] to simply allege that she had a workplace right and that she was the subject of adverse action – rather on the assumption that [the Applicant] is able to prove these allegations, the burden is then cast on to [the Respondent] to prove that adverse action was not taken against [the Applicant] because of her workplace right for the purposes of s340 and s361 of the Act: Jones v Queensland Tertiary Admissions Centre Ltd (No.2) (2010) 186 FCR 22; [2010] FCA 399 at [10] per Collier J).[129] While the contraventions alleged are civil contraventions, the proceedings are penal in nature (see Liquor, Hospitality and Miscellaneous Union v Arnotts Biscuit Ltd (2010) 188 FCR 221; (2010) 198 IR 143; [2010] FCA 770). As Logan J pointed out in Arnotts at [13], subject to the operation of ss.360 and 361, the Applicant carries the burden of proving the alleged contraventions on the balance of probabilities with due regard being given to the matters in s.140(2) of the Evidence Act 1995 (Cth).”Consideration In this matter Mr McNamara claims that adverse action was taken against him by his employer. It is not disputed that Mr Lightfoot terminated Mr McNamara’s employment while acting on behalf of his employer ERA as its sole director. Dismissal from employment is recognised as a form of adverse action. Pursuant to section 84 of the Work Health and Safety Act 2011 (Qld) (“WHSA”) the applicant had a right to cease or refuse to carry out work if he had a reasonable concern that to carry out the work would expose him to a serious risk to his health or safety emanating from an immediate or imminent exposure to a hazard. That such a right existed is not disputed by the respondents [23] nor is it disputed that the WHSA was a workplace law within the meaning of subsection 341 (1) of the FWA. [23] Points of Defence [13] [21]