Panetta v Harvey Industries Group Pty Ltd
[2024] WADC 11
•7 MARCH 2024
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: PANETTA -v- HARVEY INDUSTRIES GROUP PTY LTD [2024] WADC 11
CORAM: SWEENEY DCJ
HEARD: 21-25 & 28 JUNE, 8 JULY, 23‑25 & 30-31 AUGUST, 7 & 10 SEPTEMBER 2021, 9 MARCH & 3 JUNE 2022
DELIVERED : 7 MARCH 2024
FILE NO/S: CIV 3063 of 2014
BETWEEN: ANTONIO MICHAEL PANETTA
Plaintiff
AND
HARVEY INDUSTRIES GROUP PTY LTD
Defendant
Catchwords:
Redundancy - Contract of employment - Breach of contract of employment - Collective agreement - Whether collective agreement incorporated into contract of employment - Unfair dismissal - Breach of consultation requirements for redundancies - Damages for breach of contract of employment
Legislation:
Workplace Relations Act 1996 (Cth) (repealed), s 172, s 173, s 318, s 327, s 328, s 340, s 346, s 351, s 352, s 356, s 399, s 400, s 402, s 419, s 420, s 435, s 448, s 577, s 580, s 585, s 601, s 602, s 635, s 637, s 642, s 643, s 654, s 659, s 660, s 717, s 718, s 719, s 731, s 791, s 792, s 793, s 824
Result:
Plaintiff's action dismissed and action in related matter CIV 3059 of 2014 dismissed
Representation:
Counsel:
| Plaintiff | : | Mr M J Lourey |
| Defendant | : | Mr A J C Mossop |
Solicitors:
| Plaintiff | : | Premier Compensation Lawyers |
| Defendant | : | Clayton Utz |
Case(s) referred to in decision(s):
ACTEW Corporation Ltd v Pangallo [2002] FCAFC 325; (2002) 127 FCR 1
Amalgamated Metals, Foundry & Shipwrights' Union v Broken Hill Pty Co Ltd (Termination, Change and Redundancy Case) (1984) 8 IR 34
Amcor Ltd v Construction, Forestry, Mining and Energy Union [2005] HCA 10; (2005) 222 CLR 241
Australasian Meat Industry Employees' Union v Coles Supermarkets Australia Pty Ltd [1998] FCA 166; (1998) 80 IR 208
Australian Workers' Union v BHP Iron-Ore Pty Ltd [2001] FCA 3; (2001) 106 FCR 482
Automotive, Food, Metals Engineering, Printing and Kindred Industries Union v Mechanical Engineering Services Pty Ltd [2007] FCA 1736
Banque Commerciale SA (in liq) v Akhil Holdings [1990] HCA 11; (1990) 169 CLR 279
Bartlett v Australia & New Zealand Banking Group Ltd [2016] NSWCA 30; (2016) 92 NSWLR 639; (2016) 255 IR 309
Berry v CCL Secure Pty Ltd [2020] HCA 27; (2020) 271 CLR 151
BHP Iron Ore Pty Ltd v Australian Workers' Union [2000] FCA 430; (2000) 102 FCR 97
Bill Discount Services Pty Ltd (in liq) v Dill-Macky (Unreported, WASC, Library no 6700A-C, 7 May 1987)
BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266
Buitendag v Ravensthorpe Nickel Operations Pty Ltd [2012] WASC 425
Byrne v Australian Airlines Ltd [1995] HCA 24; (1995) 185 CLR 410; (1995) 131 ALR 422
Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64
Construction, Forestry, Mining and Energy Union v Pilbara Iron Company (Services) Pty Ltd [2011] FCAFC 91
Crowe Horwath (Aust) Pty Ltd v Loone (No 3) [2017] VSC 548; (2017) 273 IR 310
Goldman Sachs JBWere Services Pty Ltd v Nikolich (2007) 163 FCR 62
Gramotnev v Queensland University of Technology [2015] QCA 127
Harvey Industries Group Pty Ltd v Jones [2017] WADC 160
Harvey Industries Group Pty Ltd v Jones [2017] WADC 74
Howarth v Babin (Unreported, IRCA, 30 September 1996)
Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298
Jones v Harvey Industries Group Pty Ltd [2019] WADC 14
Jones v Harvey Industries Group Pty Ltd [2019] WADC 161
Kucks v CSR Ltd (1996) 66 IR 182
Maggbury Pty Ltd v Hafele Australia Pty Ltd (2001) 185 ALR 152
Metropolitan Health Service Board v Australian Nursing Federation [2000] FCA 784; (2000) 176 ALR 46
Moama Bowling Club Ltd v Armstrong (No 1) (1995) 64 IR 238
National Farmers' Union Mutual Insurance Society Ltd v Dawson [1941] 2 KB 424
Payne v Parker [1976] 1 NSWLR 191
R v Burdett (1820) 4 B & Ald 95; (1820) 106 ER 873
R v The Industrial Commission of South Australia; Ex parte Adelaide Milk Supply Co-Operative Ltd (1977) 16 SASR 6
Riverwood International Australia Pty Ltd v McCormick [2000] FCA 889
Robinson v Harman (1848) 1 Exch 850; (1848) 154 ER 363
Rudi's Enterprises Pty Ltd v Jay (1987) 10 NSWLR 568
Schijf v Mydomaine Pty Ltd [2015] WASC 428
Sinclair v Anthony Smith and Associates (Unreported, IRCA, 1 December 1995)
Soliman v University of Technology, Sydney [2008] FCA 1512; (2008) 176 IR 183
TCN Channel 9 Pty Ltd v Hayden Enterprises Pty Ltd (1989) 16 NSWLR 130
Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52; (2004) 219 CLR 165
True v Amalgamated Collieries of WA Ltd [1940] AC 537
United Firefighters' Union of Australia v Metropolitan Fire and Emergency Services Board [2003] FCA 480; (2003) 198 ALR 466; (2003) 123 IR 86
Vision Australia Ltd v Elisha [2023] VSCA 265
York Air Conditioning and Refrigeration (A/sia) Pty Ltd v The Commonwealth (1949) 80 CLR 11
Table of Contents
Introduction
Overview of the factual background
Plaintiffs' pleaded case - the first cause of action alleging breach of a non‑discrimination term
Plaintiffs' pleaded case - the second cause of action alleging breach of cl 2.1.7 and cl 3.2(h) by the selection process
Had the second cause of action previously been struck out?
Was the second cause of action time-barred?
Plaintiffs' pleaded case - the third cause of action alleging failure to consult with each plaintiff prior to making him redundant
Was the third cause of action statute-barred?
Did this court have jurisdiction to hear these claims?
The plaintiffs' submissions at trial
The defence case
Issues to be determined
What is meant by redundancy?
The concept of a collective agreement pursuant to the Act
The contract of employment entered into by each plaintiff
Was the 2006 collective agreement incorporated into the contract of employment of each plaintiff?
Conclusions as to whether the 2006 collective agreement had contractual force
Contractual enforceability of cl 2.1.7, cl 2.8 and cl 3.2(h) had the 2006 collective agreement formed part of the contract
Discussion and conclusions as to the alleged express non‑discrimination term
The witnesses, the scope of the evidence led and broad comments on credibility
Brief overview of the plaintiffs' allegations concerning sham redundancies
Who was made redundant?
What effect did the redundancies have in relation to the defendant getting its proposed agreement through?
Evidence of the financial position of the defendant in 2008 - 2009
Conclusions about the financial position of the business
Doing away with the tally system and replacing it with the yield system - and other changes
The provisions of the 2006 collective agreement relevant to redundancies
Moving inexorably towards redundancies - and what the defendant told the AMIEU and the employees before 10 March 2009
The second cause of action and the seniority system
The selection process by which the plaintiffs were chosen for redundancy
Just how vocal in their opposition to the 2009 proposed collective were the plaintiffs?
The defendant informed the AMIEU of imminent redundancies
The redundancies roll out
The defendant changes its payment arrangement, and the second vote is scheduled
The proposed agreement was sent to a third vote, and passed
Employment of new workers subsequent to the redundancies
Failure to re-employ Mr Lintott and Mr Werth as alleged proof of discrimination
Final comments about the alleged discrimination in the selection process and failure to re‑employ Mr Lintott
Conclusions about the third cause of action in relation to inadequate consultation
Comments about a provisional assessment of damages
Evidence relating to Mr Panetta's employment since March 2009 and further provisional assessment of damages
SWEENEY DCJ:
Introduction
In March 2009, the defendant company, trading as Harvey Beef, terminated the employment of 159 of its employees on the basis of the redundancy of their positions. The Australasian Meat Industry Employees Union (AMIEU, or the union) was the union to which many of the employees at Harvey Beef had belonged. Two of those employees who lost their jobs brought an action against the defendant for breach of their employment contracts, namely the plaintiff in this matter, Mr Antonio Panetta who has gone by the name of Michael Panetta all his life, and Mr Mark Lintott, the plaintiff in the related action, matter CIV 3059 of 2014.
The two trials were heard at the same time on the basis that the legal and factual issues in both and the evidence to be led was almost identical. The plaintiffs had performed different roles in their jobs - Mr Panetta was a boner and Mr Lintott a slicer - and there was personal and financial evidence that related only to the assessment of any damages suffered by the individual plaintiff. But that aside, the evidence of every witness, including that of the two plaintiffs, was cross‑admissible in both actions. The evidence concerning how and why Mr Panetta and Mr Lintott and two of their witnesses, Mr Trevor Jones and Mr Darryl Werth, came to be made redundant was admissible in both actions as it was said by the plaintiffs to be part of a course of discriminatory conduct against them.
This judgment is the primary judgment in which the issues on liability are determined, as well as findings made in relation to a provisional assessment of damages in relation to both plaintiffs generally and then Mr Panetta specifically. The judgment in matter CIV 3059 of 2014, Lintott v Harvey Industries Group Pty Ltd [2024] WADC 12, incorporates this judgment by reference, and deals only with those remaining matters as to the provisional assessment of damages which related solely to Mr Lintott.
Since March 2006, the conditions of work for most of the employees at Harvey Beef had been subject to a collective agreement which had had a notional life of three years, at which time it could have been replaced by a new collective agreement, or continued. The defendant proposed a replacement collective agreement. In a vote of the workforce conducted over 4 and 5 March 2009, the defendant had failed to secure the required majority of eligible employees voting in favour of its proposed agreement. That was the first time the workforce had voted on the proposed agreement. The union had campaigned against the proposed agreement and, from the result of that first vote, a majority of those employees who were to be affected by it had also opposed it.
Following the first vote, on 10 March 2009 the defendant announced mass redundancies, and the affected employees were told over the next few days. On 26 March 2009, the same proposed agreement was put to the vote a second time, with the same result. The third time that it was put to the vote several months later, with no changes in its terms, the majority voted to accept it.
Both plaintiffs had been against the proposed agreement and were made redundant in the March redundancies. Each plaintiff alleged that the defendant had acted in breach of his contract of employment when it terminated his employment, discriminating against him because of his union membership and activities - which had included opposing the proposed agreement - and in failing to follow the procedures set down for redundancies. The plaintiffs did not pursue any statutory remedies in this court for breach of the existing collective agreement which had regulated their employment but, rather, sued for damages at common law for breach of their individual contracts of employment. Each plaintiff's case had depended upon this court accepting that the existing collective agreement from 2006 which had regulated his employment had also been incorporated into his individual contract of employment, so as to ground a right to damages at common law for breach of contract.
It was impossible not to feel sympathy for both plaintiffs, who were suddenly told they had no job at a business at which they had worked for years - decades in the case of Mr Panetta. Their sudden loss of employment, and the way in which they were informed and told to leave the premises, had been devastating to them. Their anger, resentment and suspicion over those redundancies was entirely understandable.
However, their key argument failed. I found that the collective agreement of 2006 had not been incorporated into their individual contracts of employment and so, while each had had the right to pursue statutory remedies for breach of that agreement, there was no common law right to damages for breach of the collective agreement. Secondly, it had not been an express term of their employment contracts in any event that the defendant would not discriminate against them on the grounds of joining a trade union and/or participating in trade union activity. Further, the plaintiffs failed in any event to prove that they had been discriminated against on the basis of their support for the union and opposition to the proposed new agreement. Contrary to the case run by the plaintiffs, the redundancies were not a sham to hide discrimination, but had been part of a legitimate restructuring of the business to restore it to profitability and the evidence failed to prove that the two plaintiffs had each been discriminated against when they were selected for redundancy.
Each plaintiff had a second cause of action, alleging that the defendant had breached the collective agreement by having selected him for redundancy when others with less seniority and skill than him were not selected. While the defendant argued that the second cause of action was introduced outside the statutory limitation period and was therefore time‑barred, I did not accept that argument. Nevertheless, the second cause of action also failed on the basis that the collective agreement had not been incorporated into their individual contracts of employment and that, in any event, the plaintiffs did not prove that the selection process, which was not bound by some seniority principle in any event, had been discriminatory.
A third cause of action alleged a breach of contract by means of a breach of the consultation procedures required by cl 2.8 of the collective agreement in the event of redundancies. While the defendant argued that the third cause of action was introduced outside the statutory limitation period and was therefore time‑barred, I did not accept that argument. Nevertheless, the third cause of action failed on the basis that the collective agreement had not been incorporated into the plaintiffs' individual contracts of employment.
I found that there was a breach of the procedures set down for redundancies, in that there was a failure to provide written information in advance of the redundancies to the individual employees. Had cl 2.8 been incorporated into their contracts of employment, there would have been a right to damages for breach of that clause.
The damages award would have been extremely modest, however, because the redundancies had still been genuine and the outcome, namely each plaintiff losing his job, would still have been the same had the defendant fully complied with the requirement as to consultation. The plaintiffs would just have been at work for a week extra while that process had been properly complied with. And, as they were in fact paid for several days more than they worked anyway before their notice period officially began, the damages award would have been even more modest. In the case of Mr Lintott, it would have been non‑existent ‑ a nominal award only - on account of his higher earnings since he was made redundant. Extraordinarily in the case of Mr Lintott ‑ extraordinary because he pursued this action ‑ he has earned far more since March 2009 than he could ever have earned had he stayed employed by the defendant.
The failure of the plaintiffs' cases was no reflection upon their honesty as witnesses. Both plaintiffs were honest witnesses. But their personal beliefs about why they were made redundant did not constitute evidence as to why they were made redundant. Their case was based on a collection of circumstances from which they asked this court to draw inferences against the defendant, but the evidence simply did not justify the drawing of those inferences to the required standard of proof, being the balance of probabilities.
Overview of the factual background
It was common ground that both plaintiffs had been employed by EG Green & Sons (EG Green) at Harvey Beef for years, prior to the defendant taking over that business. EG Green went into administration in around February 2006, and the business was sold on around 13 March 2006 to the defendant. Employees of EG Green were sent letters dated 9 March 2006 by the defendant, offering them employment, subject to the sale of that business to the defendant. The letter will be reproduced in full later but, in broad terms, it explained that their 'current terms and conditions of employment' were set out in an existing certified industrial agreement between EG Green and the AMIEU, but the letter also informed the prospective employees that the union and delegates had already agreed upon a new agreement to replace it, which would be put to the vote by the employees. The defendant had hoped that agreement would be accepted but indicated that, failing its acceptance, the existing agreement would continue to apply. The offer of employment also indicated that the new owners would recognise each employee's current accrued entitlements. Both plaintiffs signed such a letter accepting the offer of employment on 13 March 2006. No employment period was specified and it is accepted by the defendant that the employment was therefore for an indefinite period.
A collective agreement, the parties to which were EG Green (pursuant to a deed of arrangement) and the AMIEU (the 2006 collective agreement) was certified in the Industrial Relations Commission (the Commission) as required pursuant to the Workplace Relations Act1996 (Cth) (repealed) (the Act), with effect from 13 March 2006. Despite the fact that it was not named as a party to the agreement, that appears to have been the replacement agreement the defendant referred to in its letter and I inferred that it was involved in the negotiations as the proposed purchaser. The defendant completed the acquisition of the business from the administrator on or about the same date. It is common ground that the collective agreement which was in place at all relevant times was the 2006 collective agreement.
There was some evidence about the negotiations prior to the acceptance of that 2006 agreement, with the defendant seeking even then to reduce the rate of pay for the meat processor workers, and in the end reducing the rate only for new employees who had not come across from EG Green. Nothing turned on that.
It was not in issue that, when each plaintiff was made redundant in March 2009, the defendant recognised each redundant employee's accrued entitlements for the purpose of calculating the proper severance pay, and there was no suggestion that either of the plaintiffs did not receive his due and proper notice and severance pay.
It was uncontroversial that each plaintiff - and each other member of the boners and slicers in the teams, or 'shifts' ‑ had been identified within his shift by a ranked number designating his seniority that was acquired through years of service, including his service at EG Green. The contractual significance of that was in issue, but not the fact of that seniority having been acknowledged in the shifts by number.
By cl 1.3 of the 2006 collective agreement, that agreement had been for three years' duration. It had had a notional expiration date of 12 March 2009, with negotiations to 'renew this Agreement' to have commenced three months prior, so 12 December 2008. Failing the parties agreeing a new agreement, the existing one was to have continued from the expiration date. Notwithstanding the expression 'renew this Agreement', it was assumed by all at trial (and was the only sensible assumption to make) that the three‑month negotiation period contemplated the parties to the agreement potentially agreeing a new and different agreement, in lieu of which the existing one would have simply continued to operate. In order to secure a new agreement to replace the old, a simple majority of those workers who had been entitled to vote had had to agree to the replacement.
At the time, the Act allowed employees, unions and employers bound by a collective agreement to engage in protected 'industrial action' in support of claims made in respect of a proposed new collective agreement during the 'bargaining period' ‑ the negotiation stage ‑ meaning the employees could perform the work differently or work to rule, boycott certain work or strike, and an employee could not be dismissed for such action, but the employer could effect a lockout of the employees from the workplace: s 419, s 420, s 435, s 448.
The redundancies occurred in March 2009. In the second half of 2008 and early 2009, the defendant had brought in new management to assess and restructure the operations of the business. There was common shareholding in the ownership of the defendant and another meatworks in south-east Queensland, being Kilcoy Pastoral Company (Kilcoy). Mr Anthony Munns, now retired, was at that time the chief executive officer (CEO) of Kilcoy. He was brought across to Harvey Beef to be the Chief Restructure Officer. Mr Munns in turn had brought a team across from Kilcoy to assist him, including Mr Dean Goode who was to be the General Manager, Operations. Mr Peter Allen was also brought across to fill the role of Operations Manager. He was not Kilcoy staff - he had been recruited from an unrelated competitor over east, and had arrived early January 2009.
In late 2008, as part of the three-month negotiation period, the defendant had proposed its new collective agreement (proposed agreement) to replace the 2006 collective agreement. Not every employee was subject to the 2006 collective agreement; some employees had individual contracts and, according to Mr Goode, some others were subject to different collective agreements. But both plaintiffs were members of the AMIEU and had been subject to the 2006 collective agreement.
During late 2008 and March 2009 the union, representing them and other employees in negotiations for the proposed agreement, campaigned for its rejection. Those eligible to vote on the proposed agreement cast their votes over 4 and 5 March 2009. The voting was done by secret ballot. There was no evidence to suggest that the ballot was not a secret ballot.
That first vote resulted in the rejection of the proposed agreement. Then, from 10 March 2009, the defendant terminated the employment of 159 workers on the ground of redundancy, including both plaintiffs. On the day each plaintiff was told that he had been made redundant, he turned up for work, was summoned to an office, was told that he was being made redundant, or was no longer required, or words to that effect (versions differed), was told to clear out his locker and was escorted from the premises, to cease work as from that day. Each of the employees made redundant was given a standard letter by which he was informed that, due to operational requirements, his position had been made redundant and, as there were no alternative suitable positions, his employment was terminated.
Mr Panetta had been employed at the Harvey Meatworks for nearly 30 years, and Mr Lintott for 12 years.
Each employee was given his salary for his notice period, which varied depending on the length of service of each employee ‑ the longer the years of service, the longer the termination notice period was, up to five weeks. In addition, each employee was paid any severance pay he was due under the redundancy clause in the 2006 collective agreement as well as all other entitlements, calculated so as to include any previous employment with EG Green.
Neither of the plaintiffs was required to work the notice period. Initially, the wages for the notice period were to be received on a weekly basis over the notice period, with the severance pay paid at the end of the notice period. That arrangement was modified, however, when the defendant sent further notice to the plaintiffs and presumably most of the redundant employees on 18 March 2009, informing each that he would instead be paid in full by 20 March 2009. The next day, the defendant scheduled a second vote on the same proposed agreement.
That second vote occurred on 26 March 2009. Again, the proposed agreement was voted down. The same proposed agreement went to a third vote later in the year ‑ the precise date is unclear but, sometime after the second vote and by July 2009, the proposed agreement was voted in by a majority of the employees who would be subject to it.
Plaintiffs' pleaded case - the first cause of action alleging breach of a non‑discrimination term
Both plaintiffs pleaded three causes of action, with an overlap in the facts and allegations. The causes of action between the two matters were the same, with variance only in some matters of detail pertaining to the individual plaintiff.
Each plaintiff pleaded that he had been employed at the Harvey Beef meatworks (since August 1979 in the case of Mr Panetta and since 1995 in the case of Mr Lintott) and was very experienced and highly skilled and had believed that his employment would be ongoing and indefinite.
Each pleaded that he was employed under a contract of service (employment contract) which was 'regulated' by the 2006 collective agreement, which was accepted by the defendant. Each plaintiff pleaded that, apart from its regulation by the 2006 collective agreement, his employment contract (a) was not in writing, (b) was partly oral and (c) included the defendant's relevant policies and/or procedures, policy handbooks and manuals.
That pleading of the contract has been problematic in these actions throughout their history. Firstly, contrary to that pleading, any policy handbooks and manuals were obviously in writing. As events transpired, the handbooks and manuals became irrelevant ‑ more on that later. But the failure to plead the letter of offer and acceptance, which was in writing, and instead plead that the plaintiffs both became employees 'as a consequence of the purchase' of the business by the defendant caused the defendant to assume in argument that no reliance was being placed on the offer and acceptance letter, and that the plaintiffs were simply asserting that the 2006 collective agreement was, by some means, the employment contract. Yet, at trial, the plaintiffs led evidence of the offer and acceptance and placed significant reliance upon it in closing submissions as, in effect, having incorporated the terms of the 2006 collective agreement into each plaintiff's employment contract.
Mr Panetta pleaded that material terms of his employment contract were that (a) his employment was ongoing and indefinite and (b) he was on a salary of between $72,000 ‑ $84,000 gross per annum plus no less than 9% superannuation. Mr Lintott pleaded similarly, except that his salary was pleaded to have been $85,000. Mr Panetta had been employed as a slicer and Mr Lintott as a boner at a slightly different salary rate. The source of the pleaded term as to salary was not identified. It was not contained in the letter of offer of employment. The 2006 collective agreement provided various clauses by which each plaintiff's wages could be calculated, but not by means of a basic salary figure. But, still, each gave evidence of his average earnings. It was accepted by the defendant that the employment of each had been ongoing and indefinite.
The first cause of action pleaded by each plaintiff alleged that he had been discriminated against. Each plaintiff pleaded that it had been an express term of his employment contract that the defendant would not discriminate against him on the grounds of joining a trade union and/or participating in trade union activity (the non‑discrimination term). He pleaded that the AMIEU had engaged in trade union activities which had comprised representing him and other employees in the negotiations for the proposed agreement, campaigning against that proposed agreement, counselling the employees to also campaign against it and participating in protected industrial action and that he, being a member of the AMIEU, had actively supported those trade union activities and been strongly opposed to the proposed agreement and participated in the protected industrial action.
Just what protected industrial action had been engaged in was not identified in the pleadings. The Act protected certain industrial action, which was defined. Holding meetings off-site and out of hours to advocate against a proposed agreement did not fall within the definition of industrial action which then attracted protection pursuant to the Act, but nothing turned on whether any protected action took place. It was no part of the defendant's case in any event that the AMIEU and/or either plaintiff engaged in industrial action justifying dismissal. The campaigning was simply part of the trade union activity by which, each plaintiff asserted, his support of the union in its opposition to the proposed agreement had been made clear and was known to the defendant.
No clause in the 2006 collective agreement was identified as amounting to the alleged express non‑discrimination term. No such term appeared in the letter of offer of employment (which was not in any event pleaded). Nor were any other particulars given as to the source of the alleged express term. There was also no pleading as to what express term in any policies and procedures manual was said to have constituted a contractual term. Extraordinarily, particulars provided by both Mr Panetta and Mr Lintott indicated that neither recalled the alleged non‑discrimination term having been an express term of his contract of employment.
Now there were various provisions in the Act which addressed the issue of union activity, including a prohibition on dismissing or threatening to dismiss an employee wholly or partly because he had engaged in protected industrial action during the bargaining phase for a collective agreement: s 448. The Act provided penalties for breaches of various protective sections. The Federal Court had power to impose a fine and grant an injunction against such conduct, order reinstatement of the employee and order compensation for loss suffered and, in any such application, the Act contained a rebuttable evidentiary presumption that the alleged conduct of the employer was carried out wholly or in part because the employee was proposing to engage in, or was or had engaged in, protected industrial action: s 448. The Act did, however, impose restrictive time limits for instituting any action and imposed monetary caps on any compensation which might have been awarded.
These actions, however, were not brought pursuant to the Act. While there had been some initial action taken before the Commission by the union on behalf of a number of employees, they were not pursued to conclusion. The precise details of what occurred there, and why it occurred, were both irrelevant and vague in any event. Both plaintiffs' submissions in the actions before this court made it plain that each was pursuing damages at common law for breach of contract ‑ instead of pursuing any statutory remedies which may have been available for breach of the Act. Each plaintiff alleged that he had been wrongfully dismissed in breach of his employment contract. The onus of proof, being the balance of probabilities, rested upon him. No statutory evidentiary presumptions applied to this matter.
Returning to the pleaded cases, each plaintiff pleaded that the defendant was aware of his active support of the union in its activities in opposition to the proposed agreement and that, following the rejection of that proposed agreement at the first vote, the defendant then terminated the employment of 160 employees at the meatworks, including both plaintiffs. Then, on about 18 March 2009, each plaintiff had received the defendant's letter telling him that he was not required to work out his notice period, and that his employment was immediately terminated.
The plaintiffs pleaded that there had been no actual or genuine redundancy of his position. Each pleaded that the defendant had not had excess labour in March 2009, that there had been no operational requirements that had made his position redundant, that other employees with less skill, experience and qualifications than he had not been selected for redundancy, that his supposedly redundant position had been filled by another less skilled employee, and that others who had not supported the union's activities in opposing the proposed agreement had not been made redundant. Each asserted that his employment had been wrongfully terminated for an arbitrary reason ‑ picking up the statutory language ‑ on account of his membership of the AMIEU and/or his participation in the pleaded trade union activities of having campaigned against the proposed agreement.
That was the first cause of action ‑ that each was dismissed in breach of an express non-discrimination term of his employment contract, that being in effect the only explanation as to how it can have been that he was made redundant when there was no justification for the redundancies generally and, in particular, his redundancy (the first cause of action, or the non-discrimination term cause of action). It was each plaintiff's case that the purported redundancies based on claimed operational reasons had been a cover for a desire on the part of the defendant to rid itself of its active and vocal union members who had supported the union in campaigning against the proposed agreement, of whom each plaintiff was one, and had not been genuine redundancies. Each sought a declaration from this court that he had been wrongfully dismissed ‑ that is the language of statutory remedies and exceeded the scope of his action ‑ but, more relevantly, each sought damages for breach of his employment contract.
The defendant, in written submissions concerning the limits of both plaintiffs' pleaded cases submitted that the plaintiffs did not plead that the redundancies were designed by the defendant to affect the outcome of voting on the proposed agreement. I did not accept that submission. The pleaded case for each plaintiff logically and necessarily implied that the redundancies were made for the purpose of affecting the outcome of voting on the proposed agreement. A finding that the redundancies were not genuine and did discriminate against workers who had supported the pleaded union activities in campaigning against the proposed agreement would not have sat plausibly with a finding that there had been no intent, nonetheless, on the part of the defendant to affect the outcome of the voting.
Each plaintiff's pleading and the manner in which he ran his case was to focus on his vocal opposition to the proposed agreement, rather than the fact that he voted 'no', because the evidence that his opposition would have been known to the defendant arose from his conduct leading up to the first vote, not from the vote he had actually cast in a secret ballot. But the clear implication from each pleading was that each plaintiff asserted that the redundancies had been made in order to impact the vote. I find that the defendant must have appreciated that that was the allegation against it. Certainly, the manner in which the defendant conducted its case was to respond to that allegation in detail.
Plaintiffs' pleaded case - the second cause of action alleging breach of cl 2.1.7 and cl 3.2(h) by the selection process
The defendant's counsel analysed the pleadings as having asserted two causes of action but, on my analysis, there were three pleaded causes of action, the first relating to the express non-discrimination term, the second relating to the selection process by which each of the plaintiffs had been chosen for redundancy, and the third relating to the required consultation process prior to announcing redundancies. Because of the way the statement of claim had been structured, the submissions at trial made the existence of the second cause of action rather more apparent than it had been in the pleadings.
In the second cause of action, both plaintiffs pleaded a breach of cl 2.1.7 of the 2006 collective agreement. Clause 2.1.7 specified the method to be applied by the defendant for identifying surplus workers in the event of a reduction in staff levels, namely 'objectively quantifiable skill and competency related criteria' and 'the operational requirements of the business'. Elsewhere in the pleadings, the plaintiffs also pleaded a breach of cl 3.2(h), which provided that appointments 'shall be on merit and criteria for selection based upon objective job related competencies in the first instance with other factors then considered'.
The plaintiffs pleaded that others with less skill, training, qualifications and experience, and employees who had been hired after them, but who had not supported the union activities, had not been selected for redundancy. Each plaintiff also pleaded that the defendant had replaced him immediately with one of its employees who had less skill, training and experience than him. Although the connection between cl 3.2(h), which dealt with appointments, and redundancies was obscure, I saw the pleading of the two clauses, cl 2.1.7 and cl 3.2(h) as a compendium cause of action which alleged that the defendant had, in selecting the plaintiffs for redundancy and in not having selected employees for redundancy who had arrived at Harvey Beef later than the two plaintiffs, breached its requirement to make those selections based on objectively required skill and competency related criteria and that, given that others junior to the plaintiffs had remained, it followed that those junior staff had stepped into the plaintiffs' jobs in breach of cl 3.2(h).
The plaintiffs had also pleaded that the defendant had failed to inform them of the criteria used to select employees for redundancy and that there had been no relevant operational requirements that had been capable of making each plaintiff's position redundant and that the defendant had not, in March 2009, had surplus labour, all of which picked up the language of cl 2.1.7.
It was the case for the plaintiffs that, given that both Mr Panetta and Mr Lintott had had a senior ranking within each of their shifts or teams, they were the last employees who should have been made redundant if the selection process for those to be made redundant had been genuine. The plaintiffs argued that the fact that they were made redundant when they had 'seniority' indicated that the selection process had been contrived to hide the real reason for their selection ‑ namely to rid the defendant of those workers who had supported the AMIEU in its opposition to the proposed agreement.
Back in August 2016, the defendant had applied to the court for an order striking out the actions. At that time, the pleaded cases contained numerous additional causes of action not detailed here. In Harvey Industries Group Pty Ltd v Jones [2017] WADC 74 (Harvey Industries v Jones [2017] (No 1)), Derrick DCJ, as his Honour was then, struck out all bar one of the plaintiffs' causes of action.
One allegation which was struck out was that the contract of employment had contained a term implied in law and/or by conduct that the defendant would utilise a 'last in, first out' practice in selecting those to be made redundant. The alleged breach of that implied term had not actually been pleaded at that time, but was assumed by the court to form part of each plaintiff's case, given the rest of the pleading which suggested that. Derrick DCJ struck out that anticipated cause of action on the basis that no such term could be implied by law or by conduct when it was not necessary to prevent the contract from being rendered nugatory, worthless or seriously undermined, and when the alleged implied term would have been inconsistent with cl 2.8 and cl 2.1.7 of the 2006 collective agreement and could not therefore have represented the presumed intention of the parties. The first issue for the second cause of action, then, was whether it could survive that previous ruling of the court.
Had the second cause of action previously been struck out?
The pleading that was before the court at trial appeared to be a different way of approaching the previously unsuccessful argument that there had been an implied 'last in, first out' term in the contract.
But the pleading before the court sought to advance a breach of express terms of the 2006 collective agreement - cl 2.1.7 and, to a lesser extent cl 3.2(h) - on the basis that the defendant could not have applied objectively required skill and competency related criteria and the operational requirements of the business in selecting each plaintiff, given his skill level attached to his seniority. The case was based on the drawing of an inference that cl 2.1.7 could not have been complied with, or the plaintiffs would not have been selected, and that cl 3.2(h) was not complied with. It was a broader argument than one based on mere seniority, although seniority was an important part of the argument, but it was also based on the skill of the plaintiffs. Even though the factual underpinning of the cause of action was mostly the same, and the logic of the argument very similar, I considered that to be a (marginally) different cause of action to that previously struck out by Derrick DCJ.
The second cause of action also stood alone from the first and third causes of action and focused on whether, even if the redundancies had been genuine, these two plaintiffs had nevertheless been discriminated against in the selection process, leading (the plaintiffs asserted) to a right to damages for breach of contract.
The second issue for the second cause of action was whether it was statute-barred.
Was the second cause of action time-barred?
The defendant argued, and pleaded, that the cause of action was time‑barred pursuant to s 13 of the Limitation Act2005 (WA) and/or s 719(10) of the Act, both of which prescribed a six-year time limit on the commencement of proceedings. That was based on the proposition that, while the proceedings had been commenced within time, the second cause of action had been pleaded for the first time on 14 November 2019, 10 years after the relevant events, and therefore outside the six-year limitation period.
I rejected the submission that the second cause of action was time‑barred.
Mr Panetta's original statement of claim filed 15 September 2015 and Mr Lintott's original statement of claim filed 22 September 2015 had contained pleadings to the effect that other employees with less skill, training, qualifications and experience than the plaintiffs, and employees who had been hired after them but who did not support the union activities, had not been selected for redundancy, and that the defendant had replaced each plaintiff immediately with one of its employees who had had less skill, training and experience than him. Prior to the amendments of 14 November 2019, the plaintiffs had also pleaded that the defendant had failed to inform them of the criteria used to select employees for redundancy, which directly picked up the language of cl 2.1.7, although it was not referred to. Those allegations were not pleaded as breaches of cl 2.1.7 and cl 3.2(h) ‑ which were not mentioned in the original statement of claim ‑ although the entire 2006 collective agreement was pleaded as having regulated the employment.
Those pleadings in their original form appeared to have formed part of the non-discrimination term cause of action. Following the ruling in Harvey Industries v Jones [2017] (No 1) in which all bar one of the plaintiffs' causes of action were struck out, the remaining pleadings appear to have been regarded by the court as having raised only the one cause of action, that surviving non‑discrimination term cause of action.
Amended substituted statements of claim for each plaintiff were filed on 14 November 2019 - more than ten years after the relevant events ‑ in which each plaintiff identified, for the first time, a breach of contract by means of a breach of cl 2.1.7 and cl 3.2(h) of the 2006 collective agreement. Married to the existing pleadings already mentioned, it was then apparent that this was a separate, albeit related, cause of action to the non‑discrimination term cause of action, and one which focused on the selection criteria which had been used to make both plaintiffs redundant. The allegation was still part and parcel of the non-discrimination term cause of action too, in that the plaintiffs were arguing that their selection, given their skill levels, evidenced that they must have been discriminated against, but the alleged breaches of cl 2.1.7 and cl 3.2(h) were also capable of an independent life.
Although in written submissions at par 4 and again at pars 116 ‑ 118, Mr Panetta accepted (as did Mr Lintott) that, should he not be able to establish the non‑discrimination term cause of action, then 'there would be little point in the Court going further to consider issues of breach and any damages that flow as a consequence', later submissions at pars 133 ‑ 135 suggested that a breach of cl 2.1.7 was sufficient to establish a breach and corresponding entitlement to damages. I proceeded on that basis.
So, prior to the identification of the clauses in the 2006 collective agreement said to have been breached, the conduct said to have constituted the breach had been pleaded, with the implication that such conduct was impugned. And the 2006 collective agreement itself had been pleaded from the outset of the action. There was also no suggestion that the second cause of action was outside the scope of the indorsement on each writ.
I found that the overlap between the 2019 pleading, which expressly identified specific clauses in the 2006 collective agreement said to have been breached, and the existing pleading prior to that, which alleged conduct or failures on the part of the defendant which picked up language and concepts used in those clauses without identifying them, was so great that the 'new' cause of action was in reality the curing of a defective pre‑existing pleading: Bill Discount Services Pty Ltd (in liq) v Dill-Macky (Unreported, WASC, Library No 6700A-C, 7 May 1987) (Burt CJ, Brinsden J). What had appeared to be alleged facts relied upon as indicia of the redundancies not being genuine and therefore discriminatory, emerged as facts also relied upon as a cause of damage suffered in its own right. The cause of action had always been there, but obscured by the poor structure of the original pleadings and the failure to specifically identify the relevant clauses, although the language of the pleadings was suggestive of at least cl 2.1.7, if not the more obscure cl 3.2(h).
If the second cause of action was not, as I perceived it to have been, the curing of a defective pleading, then the second cause of action nevertheless arose out of substantially the same facts as the old cause of action: Schijf v Mydomaine Pty Ltd [2015] WASC 428 [50] (Mitchell J).
Although the defendant submitted that the second cause of action involved different issues and different evidence to be led, the case in fact led by the defendant at trial to meet the allegation that it had discriminated against those who had supported the union in its activities entailed leading evidence which also went to meet the allegation in the second cause of action.
Apart from the fact that Mr Allen could not be called to testify ‑ a disadvantage which permeated the whole case for the defendant ‑ there was no additional prejudice in the second cause of action being entertained by the court. Further, once the defendant chose to rebut the substance of the allegation of discrimination and not just rely upon the lack of an express contractual clause to that effect, it was necessary that it deal with the method by which the redundancies were implemented and the selection process by which the individual employees who lost their jobs had been chosen, because that also went to the substance of the allegation of discrimination.
Plaintiffs' pleaded case - the third cause of action alleging failure to consult with each plaintiff prior to making him redundant
Each plaintiff also pleaded a breach of the employment contract by means of a breach of cl 2.8 of the 2006 collective agreement. Clause 2.8 dealt with redundancies and provided a regime which required the defendant to engage in discussions with the union, the consultative committee and affected employees, to identify the reasons for the terminations, to discuss any measures to avoid or minimise the terminations and adverse effects on the employees, and to provide in writing to the union and the employees all relevant information on the proposed terminations, including the reasons for them and the number and categories of employees likely to be affected. Each plaintiff pleaded that the defendant did not, prior to terminating his employment, consult with him as to why there would be redundancies, why he was chosen amongst those whose jobs were terminated, how such employees were to be chosen for redundancy and what conduct on his part had justified his termination, and nor had it given him any opportunity to defend himself from any such allegation, or accord him natural justice.
It was apparent from the manner in which the plaintiffs ran their case at trial that, in order to prove breach of the alleged non‑discrimination term, they relied upon the conduct of the defendant in relation to the entire process of the redundancies ‑ leading up to and after the redundancies - as proof that the redundancies had been a sham.
However, the third cause of action was still capable of standing alone from the first and second and focused on whether, even if the redundancies had been genuine and the plaintiffs had not been discriminated against, there was nevertheless a failure to follow the process set down in cl 2.8, leading (the plaintiffs asserted) to a right to damages for breach of contract. The defendant argued that the third cause of action was also time‑barred.
Was the third cause of action statute-barred?
Again, the defendant argued, and pleaded, that the third cause of action (counsel saw the second and third causes of action as a single cause of action) was time-barred on the basis that, while the proceedings had been commenced within time, the third cause of action was pleaded for the first time on 14 November 2019, 10 years after the relevant events and therefore outside the six-year limitation period.
The original pleadings did not link the alleged failures to consult with each plaintiff with a breach of cl 2.8 and did not, on their face at least, appear to have pleaded the failure to consult as a separate cause of action. If the defendant had not adequately consulted with the plaintiffs in any or all of the ways specified, that would not of itself have amounted to a breach of the alleged non-discrimination term, and so the pleadings were arguably embarrassing, although the pleaded non‑consultation might have had some broad factual relevance to the issue of whether the redundancies had been genuine. Still, the language of the original pleadings and the factual allegations of a lack of consultation had picked up the concepts of cl 2.8, without identifying it.
In their amended substituted statements of claim filed 14 November 2019, the plaintiffs included the allegation that the defendant had breached the employment contract by breaching cl 2.8 of the 2006 collective agreement. Marrying the amendment to the original pleadings, the third cause of action clearly emerged and could be seen to be focused on the consultation process followed by the defendant, or the alleged lack thereof, prior to and during the announcement of the redundancies.
Again, although in written submissions at par 4 and again at pars 116 ‑ 118, Mr Panetta accepted (as did Mr Lintott) that, should he not be able to establish the non-discrimination term cause of action, then 'there would be little point in the Court going further to consider issues of breach and any damages that flow as a consequence' later submissions at pars 133 ‑ 155 suggested that a breach of cl 2.8 was, of itself, sufficient to establish a breach and corresponding entitlement to damages. I proceeded on that basis.
For similar reasons to those expressed above in relation to the second cause of action, I did not accept the submission that the third cause of action was statute‑barred. The overlap between the November 2019 pleading which expressly identified cl 2.8 and the existing pleading prior to that, which alleged conduct or failures on the part of the defendant picking up language and concepts used in cl 2.8, was so great that the 'new' cause of action was in reality the curing of a defective pre‑existing pleading, so that what did appear to be alleged facts being relied upon as indicia of the redundancies not being genuine and therefore discriminatory, emerged as facts being relied upon as a cause of damage suffered in its own right.
If I was wrong in that analysis, then the third cause of action can fairly be said to have arisen out of substantially the same facts as the old cause of action.
And like the second cause of action, while the defendant submitted that the third cause of action involved different issues and different evidence to be led, the case in fact led by the defendant dealt with the whole factual scenario of the redundancies, including the consultation process. The defendant was disadvantaged by the inability to call Mr Allen to testify, but called Mr Goode who had meaningful evidence to give about the consultation process. Once the defendant chose to rebut the substance of the allegation of discrimination, it was necessary that it deal with the methods by which the redundancies were implemented, including the consultation process, and it did so in detail.
Did this court have jurisdiction to hear these claims?
I referred earlier to the problematic pleading of the employment contract. That pleading caused the defendant to assume in argument that the plaintiffs were simply asserting that the 2006 collective agreement was, by some means, the employment contract. The defendant consequently argued that a claim for breach of a collective agreement was one which could only attract the statutory remedies provided for by the Act, and was therefore wholly misconceived and possibly outside the jurisdiction of this court.
The submission was not argued in any detail. Pursuant to the Act prior to its repeal, an employee had standing to apply to 'the Court' (meaning the Federal Court) but also to an 'eligible court' (defined to include a District Court) to pursue a 'civil remedy' as set out in the legislation, including a penalty or remedy for breach of a collective agreement, but could not do so if there had already been a criminal prosecution: s 717, s 718, s 731. An eligible court had power to impose a penalty: s 719.
Following the repeal of the Act, the Fair Work (Transitional Provisions and Consequential Amendments) Act2009 (Cth) (Transitional Act) conferred jurisdiction on the Federal Court in relation to any matter arising under the Transitional Act, and the Act as it continued to apply because of the Transitional Act. The Act continued to apply to conduct that had occurred before its repeal and the Transitional Act preserved the right to bring an action for breach of the collective agreement that had occurred prior to the repeal.
Each plaintiff's outline of submissions filed pre‑trial, however, had contained the clear statement that the plaintiffs were not pursuing any statutory remedy for breach of any term of the 2006 collective agreement. The plaintiffs' claim before this court was for damages for breach of contract under the general common law only, and not a claim for any remedy pursuant to the Act or the Transitional Act for breach of a collective agreement. Each case was for breach of an individual contract of employment. If the plaintiffs failed to establish that the 2006 collective agreement, or at least those clauses said to have been breached, had been incorporated into their individual employment contracts, then their actions failed. The actions were not actions for breach of the collective agreement pursuant to the Act and were not therefore matters arising under the Act. I considered, therefore, that this court did have jurisdiction to determine the actions as an action for damages for breach of contract.
There was also no suggestion that this matter is otherwise before the Commission or Federal Court. No decision of this court construing any term of that individual employment contract could have bound the Federal Court in making any determination or declaration concerning the 2006 collective agreement as it applied to the workforce at that time.
The plaintiffs' submissions at trial
Unfortunately, in the conduct of their cases at trial and in submissions, counsel who appeared for both plaintiffs went well beyond the scope of their pleaded cases and failed to confine his submissions to the pleaded cases and the evidence. He also sought to re‑ventilate causes of action which had been struck out by the court in pre‑trial hearings.
There was a marked disparity between the pleadings filed on behalf of both plaintiffs and the submissions filed on their behalf. The submissions filed after the evidence commenced as follows:
1.The Plaintiff's case has always been, and continues to be, a simple one.
2.The plaintiff's case was always, and continues to be, that the terms of his common law contract of employment with the Defendant in force as at 10 March 2009 (or alternatively 12 March 2009), indicated a number of express and implied terms, and that one or more of those terms were breached with that all those breaches causing loss and damage.
3.The express and implied terms the Plaintiff says were part of his contract of employment as at 10 March 2009, (and irrespective of the Defendant's view of the impact of their no less than 3 attempts to strike out the Plaintiff's action between August 2016 and August 2019) included:
•the full contents of the EG Green and Sons Pty Ltd (Subject to Deed of Company Arrangement) 7th Street Harvey and the AMIEU (WA) Western Australian Meat Processing Agreement 2006; ('the 2006 Agreement')
•all of the promissory terms in the Defendant's 'Human Resource - Policies and Procedures Manual' issued in December 2008;
•a term implied by law that the Plaintiff's employment could not be terminated for reasons that were harsh, unjust or unreasonable pursuant to the statutory prohibition set out in s 635, 637, 642, 643 and 654 of the (then) Workplace Relations Act 1996 ('the WRA');
•a term implied by law that the Plaintiff's employment could not be terminated for any grounds set out in s 659 of the WRA, including but not limited to his participation in trade union activities; and
•a term implied by law that the Plaintiff's employment could not be terminated as a result of his failure to agree or consent to, or vote in favour of, a proposed agreement as set out in s 792 and 793 of the WRA.
4.As indicated at the commencement of these proceedings, and prior to and throughout his Trial, the Plaintiff accepts that should he not be able to establish the one or more of the above were terms of his common law contract of employment as at 10 March 2009, then he cannot succeed with these proceedings.
As to the above, the only reference that found some mirror in the pleadings was the reference to a policies and procedures manual, there having been no pleading, however, as to 'all of the promissory terms' nor any intelligible evidence as to the 'issue' of any such manual.
As to the references above to terms implied by law, these were not pleaded in the amended substituted statement of claim and so were not before the court, even though the pre‑trial outline of submissions asserted that terms of a statute can be incorporated into a contract by implication. No such terms were pleaded. Nor was there any application to amend the pleadings to plead such terms.
In the outline of submissions filed prior to trial each plaintiff had submitted that his contract of employment contained a term implied by law that his employment could not be terminated for reasons that were harsh, unjust or unreasonable, pursuant to the Act ‑ a term which he had not pleaded - and a term implied by law that he could not be dismissed for participation in union activities - directly contrary to his pleading that such was an express term of his contract and a pleading which had been, in any event, struck out by this court previously.
The reference to 'the Defendant's view of the impact of their no less than 3 attempts to strike out to the Plaintiff's action between August 2016 and August 2019' requires some comment. Ordinarily, pre‑trial rulings upon the pleadings would not concern the trial judge, who determines the case on the pleadings as they stand at trial. But, given the disparaging tone and repeated comments in the submissions as to the strike-out applications, comment is required. What follows is drawn from the decision of Derrick DCJ in Harvey Industries v Jones [2017] (No 1).
On 22 August 2016 the defendant made applications by chamber summons in eight separate but similar actions (each brought by one of eight plaintiffs), including these two actions, for summary judgment or, in the alternative, orders that the statements of claim be struck out in their entirety and the eight actions dismissed (the dismissal applications). Four days later, one of the plaintiffs, Mr Jones, made an application for discovery, and a deputy registrar of this court adjourned the dismissal applications sine die on the basis that the discovery application should be heard first in time.
The defendant appealed the decision to adjourn the dismissal applications, which came before Derrick DCJ, who upheld the appeals against the adjournments and then dealt with the dismissal applications, ruling that all bar one of the allegations raised in each of the eight plaintiffs' pleadings did not give rise to a serious question to be tried, and that the same allegations disclosed no reasonable cause of action within the meaning of O 20 r 19(1)(a) of the Rules of the Supreme Court 1971 (WA).
Those allegations which were struck out as disclosing no reasonable cause of action were:
•an allegation that the defendant had breached a term implied in law that the plaintiffs' employment could only be terminated by the defendant on the giving of reasonable notice (implied reasonable notice term), on the basis that no such term could be implied inconsistent with the terms of cl 2.1.6 of the 2006 collective agreement;
•an allegation that the defendant had breached a term implied in law that the defendant would not discriminate against the plaintiffs on the ground of joining a trade union and/or participating in trade union activity (implied non‑discrimination term), on the basis that no such term could be implied when it was not necessary in order to ensure that the rights conferred by the 2006 collective agreement were not nugatory, given that the Act imposed a statutory duty to that effect;
•an allegation that the defendant had breached a term implied in fact that it would not, except in a case of summary dismissal, terminate the plaintiffs' employment for reasons related to the plaintiffs' conduct or performance unless the plaintiffs were given an opportunity to defend themselves against any allegations, in line with the principles of natural justice (implied natural justice term), on the basis that no such term could be implied when it was not necessary for the reasonable or effective operation of the contract when the 2006 collective agreement contained an express provision to the same effect and where the Act provided penalties and remedies for breach of provisions of the 2006 collective agreement by s 643(1), s 654, s 718 and s 791;
•an allegation that there was in the contract of employment a term implied in law and/or by conduct that the defendant would utilise a 'last in, first out' practice when it chose to terminate employment on the grounds of redundancy (implied last in, first out term) - breach of which had not actually been pleaded, but was assumed by the court to form part of each plaintiff's case and would be pleaded - on the basis that no such term could be implied by law or by conduct when it was not necessary to prevent the contract being rendered nugatory, worthless or seriously undermined and when the term would be inconsistent with cl 2.8 and cl 2.1.7 of the 2006 collective agreement and could not represent the presumed intention of the parties; and
•similarly, an allegation that there was in the contract of employment a term implied in law that the defendant would act in good faith and not unreasonably exercise its powers under the contract (implied good faith term) - breach of which had not actually been pleaded but was foreshadowed to form part of each plaintiff's case - on the basis that, even if such a term can be implied into employment contracts (which was doubted on the state of the authorities), such a term cannot apply to the termination of employment and will only give rise to damages which flow from a breach which occurs during employment, separate and independently of any subsequent dismissal.
One aspect of each plaintiff's claim was not struck out, namely the allegation that the defendant had wrongfully terminated their employment in breach of an express term of the contract that the defendant would not discriminate against them on the ground of joining a trade union and/or participating in trade union activity. Given that there was no express term in the 2006 collective agreement to the effect of the express non-discrimination term, Derrick DCJ commented that the only reasonable inference was that the plaintiffs must have been alleging that it was an oral term, or was contained in the defendant's relevant policies and/or procedures, policy handbooks and manuals, though neither basis had been pleaded.
His Honour expressed some doubts about the evidentiary basis of the claim but, on the basis that, in dealing with dismissal applications, the court was bound to accept that a plaintiff will be able to establish the material facts pleaded, and therefore bound to accept that the plaintiffs would prove that the non‑discrimination term was an express term of the contract, Derrick DCJ was unable to conclude that there was no serious question to be tried on the alleged breach of the express non‑discrimination term - and so that one allegation was not struck out and remained live as the first cause of action referred to earlier.
That was on 9 June 2017. That same day, Derrick DCJ made programming orders, including an order that each plaintiff file and serve a substituted statement of claim by 16 June 2017. The question of costs was adjourned.
When the issue of costs was argued, (Harvey Industries Group Pty Ltd v Jones [2017] WADC 160) (Harvey Industries v Jones [2017] (No 2)) the plaintiffs optimistically sought costs on the basis that the defendant's strike-out applications had not succeeded. Derrick DCJ ordered the plaintiffs to pay 80% of the defendant's costs of the above hearing given that the defendant 'was substantially successful' and further ordered those costs to be paid on an indemnity basis because, amongst other reasons, those allegations which had been struck out were 'hopeless' and the plaintiffs, properly advised, should have known that.
No substituted statements of claim were filed before January 2018, when the matters were also prematurely entered for trial by the plaintiff and others when the pleadings had not yet closed. By application dated 12 June 2018 the defendant sought orders (a) setting aside those entries for trial as an abuse of process and (b) dismissing each action for want of prosecution. One of the (then) eight plaintiffs, Mr Jones, then sought an order for discovery against the defendant, which order was made by a registrar on 27 June 2018. The defendant appealed that order.
The matters were all heard together. Scott DCJ (Jones v Harvey Industries Group Pty Ltd [2019] WADC 14) (Jones v Harvey Industries [2019] (No 1)) upheld the defendant's appeal against the order for discovery and found the submission that the matters had been ready to be entered for trial to be 'unmaintainable'. The court was still not prepared to strike the actions out, however, given that substituted statements of claim had finally been filed enabling each case to be advanced and that, if struck out, each action would have been time‑barred. Scott DCJ indicated that he would be making programming orders.
The following is drawn from the judgment of Scott DCJ in the subsequent hearing in Jones v Harvey Industries Group Pty Ltd [2019] WADC 161 (Jones v Harvey Industries [2019] (No 2)). Amongst the programming orders made was an order that all plaintiffs provide further and better particulars of material facts which were not pleaded in the substituted statements of claim and which the court determined were necessary to enable the defendant to properly plead its defence. Once those particulars were provided but found to be inadequate, the court ordered that revised particulars be provided as to the terms of the contract pleaded. Revised particulars were filed on 3 July 2019, prompting the defendant's application of 14 August 2019 seeking orders for summary judgment or, alternatively, striking out the statements of claim. That was the third strike-out application.
The defendant's application was based on the submission that, now that the further particulars were before the court, and given that such a term must on the pleadings have been an oral term or part of the defendant's policies, the particulars made it clear that 'there was not and never had been an evidentiary basis for the alleged existence of the breach of the trade union term', as none of the plaintiffs recalled the existence of such an express term and no other foundation was pleaded. Losing sight of the burden of proof, the plaintiffs submitted that a lack of recollection on the part of the plaintiffs as to how an oral term became part of the contract was irrelevant, given the passage of time, and that the fact that each could not recall the specifics of the trade union term being an express term of the contract was not an admission that it was not an express term.
Having commented that the plaintiffs had 'constantly failed to file an accurate and intelligible statement of claim', including further and better particulars of the pleaded contract 'which would allow the defendant to file a meaningful defence', Scott DCJ, like Derrick DCJ before him, expressed 'significant reservations' about the ability of any plaintiff to prove that the defendant's policies had formed part of the contract. The court considered, nonetheless, that the claim by the plaintiffs that the trade union term was an express term still fell to be determined on the evidence led at trial, and so the defendant's application to strike out the remaining cause of action again failed.
Following the arguments before Scott DCJ on 23 August 2019, and before the delivery of that decision on 22 November 2019 the (then) eight plaintiffs filed amended substituted statements of claim, which still contained the express non-discrimination cause of action and now contained what I have identified as the second and third causes of action. It is apparent from Scott DCJ's reasons that he was appraised of those amended substituted statements of claim by the time of the decision. Both plaintiffs in these actions filed their amended substituted statements of claim on 14 November 2009.
Against that background, in written submissions in this trial the plaintiffs' counsel baldly asserted that
nothing in the various decisions of the Court in response to the no less than 3 attempts by the Defendant to strike out his action, has any impact on his case as it was run at trial … any submission by the Defendant during the trial that the Plaintiff was somehow limited in running his case at Trial in a particular manner, whether in relation to implied terms or otherwise, is not consistent with the outcome of any of the Court's decisions in response to the Defendant's no less than 3 attempts to strike out the Plaintiff's proceedings.
The disparaging tone about the defendant's applications to strike these actions out was entirely unwarranted. No acknowledgment was made of the substantial success of the defendant's first application to strike out the claims, or the reservations expressed by Derrick DCJ and Scott DCJ as to the plaintiffs' ability to prove their cases ‑ none of which would have concerned a trial judge but for the plaintiffs having raised the matter in submissions.
More significantly, no explanation was given as to why the plaintiffs should not be held to their own pleadings, or how those various aspects of the case which had been struck out could still be regarded as live issues. It was simply not open to either plaintiff to re‑agitate those allegations which were struck out by Derrick DCJ, and which no longer existed in the plaintiffs' pleaded cases. It was not open to either of the plaintiffs to assert that it was an implied term of the contract that their employment could not be terminated for any grounds set out in s 659 of the Act, including but not limited to their participation in trade union activities.
Any remedy in relation to the decision of Derrick DCJ was by way of appeal pursuant to s 79(1)(a) District Court of Western Australia Act 1969 (WA), on the basis that the order striking out the several causes of action had amounted to a final judgment (or, failing that, with leave pursuant to s 79(2)). To the extent to which the plaintiffs' submissions purported to assert causes of action that had previously been struck out by this court, I disregarded those matters.
Further, every pleading must contain in summary form a statement of the material facts upon which the party relies: O 20 r 8(1) Rules of the Supreme Court. In the commentary as to O 20 r 8, the learned authors of LexisNexis, Civil Procedure Western Australia, vol 1, (at Service 200) [20.8.7] state:
In an action for breach of contract the plaintiff should plead the contract and its breach as facts. The pleading should state the date of the alleged agreement, the names of the parties to it, and whether it was made orally or in writing (in the former case stating by whom it was made and in the latter case identifying the document) or to be implied or partly one and partly the other, and in all cases setting out the relevant terms relied on … When pleading a term of the contract, the pleading should specify if the term is express, implied, or to be held to be a term upon the proper construction of the contract as a whole (citations removed).
One of the primary objects of pleadings is to inform the other party of the case it must come to meet. That a party should be confined to his pleadings is one of the basic requirements of procedural fairness: Banque Commerciale SA (in liq) v Akhil Holdings [1990] HCA 11; (1990) 169 CLR 279.
It was not open to either of the plaintiffs to assert terms of his contract said to have been implied, on any basis, those terms not having been pleaded. The plaintiffs, by implication if not directly, had pleaded that an express non-discrimination term was either oral, or was to be found in the defendant's relevant policies and/or procedures, policy handbooks and manuals. That is what was pleaded and that was what the plaintiffs' case was confined to. The pleading that 'all of the promissory terms in the Defendant's Human Resource ‑ Policies and Procedures Manual' constituted terms of the contract, without any identification in the pleadings as to what 'all of those promissory terms' consisted of, was unsatisfactory. The further particulars provided were singularly unhelpful, merely expressing surprise that the defendant would suggest that the alleged express term was not an express term.
It was not open to the plaintiffs to submit that there was in the contract of employment a term implied by law (specifically by s 635, s 637, s 642, s 643 and s 654 of the Act) that their employment could not be terminated for reasons that were harsh, unjust or unreasonable. Any such claim would have been doomed to failure in any event, had it been open, for precisely the same reasons as had been detailed in relation the other terms said to have been implied by law and dispatched in Harvey Industries v Jones [2017] (No 1).
It was also not open to the plaintiffs to submit that there was a term implied by law that their employment could not be terminated for any ground set out in s 659 of the Act, or to assert a term implied by law that their employment could not be terminated as a result of their failure to agree or consent to, or vote in favour of, a proposed collective agreement as set out in s 792 and s 793 of the Act. If it had been open, such claims were also bound to fail because, again, they conflated a breach of a statutory provision contained within an Act with an attendant regime of statutory enforcement, with a breach of a contractual term sounding in damages at common law.
Another aspect of the plaintiffs' final submissions requires comment. Counsel alleged deliberate and inadequate discovery on the part of the defendant of various documents, details of which were said to have been included in various chamber summonses filed during 2021 and further supported, counsel suggested, by the fact that the defendant disclosed four documents for the first time during the trial (or on 4 June 2021, according to earlier submissions), namely the financial reports for the defendant for the calendar years 2007 ‑ 2010 and a report known as the ProAnd report, supporting, counsel submitted, the drawing of a Jones v Dunkel inference (Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298) against the defendant.
The court was informed that, back in December 2019, the parties had agreed upon categories of documents to be discovered. The defendant had filed its list of documents in May 2020. The chambers summonses referred to in the plaintiffs' final submissions did not result in any orders (or any orders that survived on appeal) having been made by this court for further discovery by the defendant. Having considered the extensive history of the matter in both Jones v Harvey Industries [2019] (No 1) and Jones v Harvey Industries [2019] (No 2), Scott DCJ commented [13]:
Over time various orders were made that the defendant give discovery in each action, however, those orders have been successfully appealed by the defendant primarily on the basis that it was appropriate for any order for discovery to abide the resolution of disputes with respect to the substituted statement of claim in each action and the provision of further and better particulars of material facts which were not pleaded and which I determined were necessary to enable the defendant to properly plead to certain allegations made in each substituted statement of claim.
Subsequently, with a trial looming, on 14 May 2021 Herron DCJ refused an order for further discovery against the defendant, on 4 June 2021 Shepherd DCJ refused an identical application as an abuse of process and, on the first scheduled day of the trial, I refused yet another such application.
Neither of the two witnesses called by the defendant were cross‑examined by the plaintiffs' counsel about the alleged deliberate withholding of documents and their production during the trial. No suggestion was put to the effect that the documents had been fabricated shortly prior to trial. In fact, in closing submissions, counsel for the plaintiffs accepted that it may well be that some consultant had conducted the comparative exercise of comparing costs between competitors, which appeared to have been a reference to the ProAnd report. In addition, the plaintiffs' conduct of the trial had indicated a case broader than that which had been pleaded. There was no proper basis in the evidence put before the court at trial from which to draw a negative inference against the defendant on the basis of inadequate discovery, nor any logical basis laid for why the late introduction of the documents should have led to an inference that assisted the plaintiffs in their contentions at trial.
To have qualified for a disability support pension pursuant to s 94 of the Social Security Act 1991 (Cth) in 2013 (and now) Mr Panetta must have had a physical impairment (reaching the prescribed number of points on an impairment table) and a 'continuing inability to work' for at least 15 hours per week in work which attracted at least the minimum wage. Pursuant to s 96 of the same Act, a person in receipt of the pension did not become ineligible to receive his pension if he worked in paid work for more than 15 hours and less than 30 hours per week. Section 96 did not alter the threshold for qualifying in the first place, however. It was clearly designed to encourage participation in the workforce and recovery and independence, but not to broaden eligibility for the pension.
It follows then that, in 2013 when he qualified for the disability pension, Mr Panetta had been able to demonstrate that he was suffering from a physical impairment which met the impairment points requirement and that he had a continuing inability to work for 15 hours per week in paid work. And from that point on, he was limited to working less than 30 hours per week if he was to retain his pension. His financial records indicate that he continued to receive his pension. That pension must have been assessed on the basis of the colitis. The Crohn's disease, diagnosed in 2020, made his situation even worse.
Although he did not recall just when he had qualified for the pension, Mr Panetta received $14,438 by way of the pension for the financial year ending 30 June 2013, which was more than he received by way of pension in the following financial year, suggesting that he had received the pension for the whole of or at least the lion's share of the financial year ending 30 June 2013. The amount of pension received did not seem to be reduced by the income received, based on his records. In those circumstances, it is reasonable to infer that he was assessed as having qualified for that pension from at least the beginning of the calendar year 2013. That need not indicate that he received his first payment then as he might have received some sort of back payment, but the total sum received, compared to the following years, suggests that he received a full year's worth of pension throughout the financial year ending 2013.
On the basis that qualifying did not mean that he had been assessed as incapable of working at all, it was still apparent that the lawnmowing round would have enabled him to structure his work hours, alter his commitments to customers when needed, and call on his subcontractor or his wife when needed, none of which could realistically have applied to his former work at Harvey Beef. He could have utilised sick leave there and possibly changed shifts on short notice and continued to be accommodated to an extent by management but there was no basis for concluding that it is likely that, by the time he was able to demonstrate that he was unable to work for 15 hours a week, he could have maintained his employment with the defendant and that his impairment would not have impacted upon his work performance and his reliability. He may not, in that hypothetical situation of having remained at Harvey Beef, have applied for the pension at precisely the same point and he may have worked longer than he should have, but I am satisfied that his employment with Harvey Beef was likely to have come to an end on account of his physical ailments by at least the end of the calendar year 2014 - whether voluntarily, or on account of decreasing reliability and being given notice, matters not. Obviously, that figure cannot be precise and was an exercise in probabilities, but his qualifying for the pension is a known fact and I accepted his evidence about the impact of his ailments on him and the manner in which the lawnmowing round had enabled him to adapt. In light of that evidence, I did not make any finding that Mr Panetta had failed to mitigate his loss in not finding alternative employment in the industry.
On that basis I found that his loss of income claim against the defendant, had it performed the contract, was limited to the period ending 31 December 2014.
Turning now to his income during that period, Mr Panetta agreed that his lawnmowing business was run in partnership with his wife. When asked whether he was employed by the partnership, or received his income from the partnership as a disbursement, he said 'yeah, I just receive, yeah' and agreed that his wife also received income from the partnership. He said the partnership paid for his machinery and anything he needed for the business. When asked whether it covered anything else other than business-related things he answered: 'she does it all, I'm not sure'. Mr Panetta had left school young and had issues with literacy. His evidence in general demonstrated a vulnerability, and an issue with getting across detail.
He was taken in cross-examination to a number of his financial documents. The end proposition that was put to him was that his tax affairs were structured so that his effective tax position each year was to break even in terms of his personal tax. Mr Panetta did not know whether that was the case. Nor did he know whether a part of that potential strategy was to disperse money to him from the partnership that was running the lawnmowing business. When asked if he accepted that at least some of his income came as a disbursement from the lawnmowing partnership he answered: 'if I needed some, yeah'. He demonstrated no understanding of possible tax management strategies.
In relation to the financial year ending 2009, the same year that he had lost his job at Harvey Beef, Mr Panetta said that he had not done any lawnmowing prior to the end of June. I accepted that evidence. His income, then, related to working for Harvey Beef and that assessment indicated his income that financial year had been $69,108, which must have included the notice and severance pay and entitlements. The payroll tax records for the defendant indicated that Mr Panetta had received a total of $25,566.81 upon termination, which had included $13,419 in accrued long service leave entitlements.
For the financial year ended 30 June 2010, his taxation estimate (not a notice of assessment) had indicated a gross salary and wage income of $1,616 and a taxable income 'as per return' of $1,500. When asked why the income was so low, he said that he was not doing much at all with the lawnmowing round, and it would have been a bad year most probably. He was not sure if that was all he had earned. There was no evidence about whether or not he had been on unemployment benefits. They may have been mentioned in his income tax return if he did, but they did not show up in a taxation assessment form which related only to taxable income. The evidence was spartan.
In his notice of income tax assessment for the year ending June 2011, his taxable income was given as $5,777, which was the figure claimed as his income in the schedule of loss. Mr Panetta was unable to explain what that was for and said that he did not do any of the bookwork. He agreed that some people paid for lawnmowing work in cash, but not many. He said most customers paid by bank transfer and records were kept. He said that his wife had responsibility for the records. He was unable to say whether the 2011 financial records accurately reflected his income. Mrs Panetta was not called to testify.
In relation to the financial year ending June 2012, his individual tax return described an income from 'investment, partnership and other sources' of $13,209 and an income from 'employment and business' of $7,715. Mr Panetta could not explain where those funds had come from and said he had no idea whether they had been funds from the partnership. The same document referred to his having received a distribution from the partnership of $7,715. His wife's income for that year was described as having been $15,002.
It also referred to an entrepreneur's tax offset in the name of Mr Panetta and his wife, and noted a small business entity turnover of $73,891. Mr Panetta was unable to say whether that was the turnover of the lawnmowing business. He was unable to say whether the partnership was paying him money on an annual basis and was unsure whether the business would have turned over $73,000 in that financial year. There was no evidence as to whether a subcontractor may have generated a portion of that turnover, and then been paid his price such that the turnover did not represent the income.
The same tax return also referred to an investment rental property at 18 King Street in Harvey. He confirmed that he and his wife did have such a rental property for many years as an investment property with paid tenants. Counsel offered him more time to look at the document in order to understand it, but Mr Panetta said that he was not sure and did not understand it at all. Mr Panetta said that his niece does the income tax for them. She was not called as a witness. An entry in the rental property schedule indicated rental income of $10,400 (his share being half) suggesting that $20,000 of the $73,000 was from rental income and not work. The gulf between potentially $53,000 and his income of $7,715 was not addressed. On the other hand, however, the apparently very low earnings in the 2011 and 2012 financial years preceded Mr Panetta qualifying for the disability support pension the following year. His physical condition is likely to have played an increasing role in limiting his earnings.
He was taken to his income tax return for the financial year ending June 2013 indicating a taxable income of $19,499. He said he did not know whether that was his distribution from the partnership that year. The same document referred to 'tax-free government pensions' and, later in the additional information section, a 'disability support pension' in the amount of $14,438, so that figure cannot have been included in the taxable income. Mr Panetta was unable to confirm that was his pension, but plainly it was. In the supplementary section, his 'distribution from partnerships' was described as $20,161. Mr Panetta was unable to say what the total income of the partnership had been in the financial year ending June 2013. Rent of $5,200 on the investment property was noted.
Mr Panetta's notice of income tax assessment for the financial year ending June 2014 indicated a taxable income of $30,537 as well as $12,941 by way of his pension. The supplementary section indicated a distribution from the partnership of $29,629. His wife's income was noted as $28,199.
His notice of income tax assessment for the financial year ending June 2015 indicated a taxable income of $27,886. He also received a pension of $10,942. He indicated that he could see from the notice of assessment that he owed the taxation office $1,868 that year.
Mr Panetta accepted the proposition that, each financial year, he would come out at around a credit or a slight loss in terms of what he owed in tax. My impression however was that he was very out of his depth on such questions. He was unable to say how his tax affairs were structured and whether there was a strategy in place to make sure he more or less broke even in terms of what he owed or was owed on his personal income tax.
The evidence as to his income was not satisfactory. Mr Panetta could not say what income the partnership had been generating from the lawnmowing business. He could not say whether contributions were being made to his superannuation fund from the partnership (before he received his income as a disbursement) and was unable to say whether his notices of assessment for each year actually indicated the whole picture in terms of his income from the work he had been doing. He agreed that he left the paperwork to those who were qualified to do the paperwork.
He agreed with the leading propositions from his counsel that he was satisfied that he had paid everything according to law and disclosed everything he was required to disclose, including all of the income from the lawnmowing business and investment property. His family looked after his taxation affairs and no doubt he trusted that everything had been dealt with according to law. But in reality, it seemed clear enough that Mr Panetta would not have known the answer to those questions, because he left the paperwork to others and others managed his taxation affairs and his wife managed his income through the partnership. It is highly likely too that Mr Panetta's income and work hours were structured so as to not compromise his right to the disability pension, but his physical limitations probably achieved that in any event.
The financial records which did provide his wife's income did not suggest that he was being given a disproportionately small income by way of a distribution from the partnership, while she was being given the lion's share. There was no evidence that his wife was earning money from another source. He said she did the books and helped out with everything, including the lawnmowing. If the lawnmowing business was run by two people in partnership and supported two people, then his income could only reflect his approximate share.
The court must do what it can with the evidence available. The evidence, while unsatisfactory, was not so unsatisfactory that it did not enable the court to infer that Mr Panetta had earned less in his lawnmowing business than he had at Harvey Beef. In addition, his medical condition enabled me to more readily accept the income figures provided, even when they seemed very low. Mr Panetta was married and it seemed that his wife generally brought in an income. Not everyone accepts unemployment benefits even if they qualify for them and, while Mr Panetta said that he had gone in to see Centrelink, there was no evidence of unemployment benefits actually paid. Mr Panetta, however, was unaware of whether he had received unemployment benefits. As previously stated, I considered him to be both honest but also a vulnerable sort of person. I considered that he was both likely to have known that he was in receipt of unemployment benefits if he had been, and also the sort of person who might have ignored any entitlement to benefits while ever he saw himself as employed with a lawnmowing round, even if the reality was that, for mental and physical health reasons, he was not generating much income. While insufficient effort had been made to put detailed evidence before the court, with some reservations about that issue, I decided nevertheless to accept the figures.
It is necessary to assess what he was likely to have earned had he stayed at Harvey Beef. The 2006 collective agreement was replaced by the 2009 collective agreement, operative from 7 October 2009. The 2006 collective agreement was therefore operative for the whole of the financial year ending 30 June 2009. When Mr Panetta was made redundant, he was paid five weeks' notice plus 12 weeks' severance pay at a rate based on his average earnings as a tally worker and all of his entitlements, which meant that he was paid the equivalent of his average earnings up to 13 July 2009. Although that method saw him earn a bit less than his average calculated over the last few years, it was hard to fault the methodology and, on that basis, I assessed that he did not prove a loss of any income in the financial year ending 30 June 2009.
He lost no income for the first two weeks of the next financial year, being paid at the same rate of average earnings as a tally worker plus any accrued entitlements over that period. Between 13 July 2009 and 6 October 2009, he would have still been subject to the 2006 collective agreement pay structure. Rather than calculate his base rate entitlements, I have worked on the basis of his average earnings under that regime, which calculated to $75,641 per annum. The date period represents 12 weeks, or $17,456 average earnings.
On 7 October 2009, the 2009 collective agreement became operative. While he had been paid as a Level 5 slicer pursuant to the previous collective agreement, under the 2009 collective agreement, Mr Panetta would have been paid as a Level 4 slicer, which was the highest classification for slicers. His hourly rate for the next 12 months would have been $19.64, with a 15% higher rate for afternoon shifts, double pay for working public holidays and 17.5% leave loading on his four weeks' annual leave.
On that basis I assessed the base rate of $19.64 per hour would have resulted in a base salary of $38,808 together with $522 annual leave loading over four weeks' leave, $746 for working five public holidays at double pay and I also considered it likely that Mr Panetta would have been willing to work the afternoon shift about a quarter of the time to increase his income by $1,455. Those figures resulted in an expected annual income from 7 October 2009 until 6 October 2010 of $41,531. On the basis that from 7 October 2009 to 30 June 2010 is 38 weeks, Mr Panetta's expected earnings under that hourly rate from 7 October 2009 until 30 June 2010 were $30,349, with $11,182 to carry over into the next financial year up until 6 October 2010.
I therefore assessed that Mr Panetta could have expected to earn $47,805 for the period 13 July 2009 to 30 June 2010. For the financial year ended 30 June 2010, his taxation estimate (not a notice of assessment) had indicated a gross salary and wage income of $1,616. The difference was $46,189. I did not make any adjustment for the two weeks short of the financial year. In the circumstances I estimated the loss of income over the financial year ending 30 June 2010 to have been $46,189, to which must be added lost superannuation contributions of $4,157.
The next hourly rate for 7 October 2010 to 3 July 2011 was $20.23. Following the same methodology, the base rate of $20.68 per hour, with leave loading on four weeks' annual leave and working a quarter of shifts as afternoon shift and working five public holidays would have resulted in an annual income of $42,780. For the period 7 October 2010 to 30 June 2011, he could have expected to earn $31,262 which, together with the $11,812 from 30 June 2010 to 6 October 2010, resulted in an expected income from 1 July 2010 to 30 June 2011 of $43,074. The records provided a taxable income of $5,777, the difference being $37,297, which I assessed as the loss of income for the financial year ending 30 June 2011, to which must be added lost superannuation contributions of $3,357.
Given that the next hourly rate commenced a few days later, pursuant to the Harvey Industries Group Pty Ltd Meat Processing & By‑Products Union Collective Agreement 2011, which was before the court, I proceeded straight to that higher rate. Mr Panetta would have been subject to the Level 4 extra incentive rate from 4 July 2011 which was current until 1 July 2012. Pursuant to that agreement, leave loading and shift and public holiday penalty rates remained the same. That hourly rate of $20.99, following the same methodology I employed above, would have resulted in an annual income from 1 July 2011 to 30 June 2012 of $44,388. Mr Panetta's documented income for that period was $7,715, the difference being $36,673, which I assessed as the loss of income for the financial year ending 30 June 2012, to which must be added lost superannuation contributions of $3,301.
From 1 July 2012 to 30 June 2013, Mr Panetta would have been subject to the hourly rate of $21.72 which, following the same methodology, would have resulted in an expected income for that period of $45,931. The lawnmowing business did better that year, although his wife may have been the one generating a portion of that income. Mr Panetta's taxable income for that year was $19,499, to which must be added the disability support pension amount of $14,438, resulting in an income of $33,937 and a difference of $11,994, which I assessed as the loss of income for the financial year ending 30 June 2013, to which must be added lost superannuation contributions of $1,079.
From 1 July 2013 to 30 June 2014, Mr Panetta would have been subject to the hourly rate of $22.54 which, following the same methodology, would have resulted in an expected income for that period of $47,665. His taxable income for that year was $30,537 as well as $12,941 by way of his pension, resulting in an income of $43,478 and a difference of $4,187, which I assessed as the loss of income for the financial year ending 30 June 2014, to which must be added lost superannuation contributions of $387.
From 1 July 2014 to 21 October 2014, he was still subject to that same hourly rate, which would have resulted in an expected income of $14,666 for that period. From 22 October 2014, the Harvey Industries Group Pty Ltd Meat Processing & By-Products Union Collective Agreement 2014, which was before the court, came into operation, and Mr Panetta's hourly rate would then have increased to the Level 4 extra incentive rate of $23.16. That rate would have resulted in an expected annual income of $48,976, and therefore an expected income for the period 22 October 2014 to 31 December 2014 of $9,419, meaning that his expected income for the period 1 July 2014 to 31 December 2014 was $24,085.
His notice of income tax assessment for the financial year ending June 2015 indicated a taxable income of $27,886, to which must be added the pension of $10,942, resulting in an income for the full financial year of $38,828 and therefore, on the broad basis that he likely earned half of that sum in the first half of that financial year (which may not be accurate but is the best that can be done on the evidence), an income of $19,414 for the first half of the financial year, the difference being $4,671, which I assessed as the loss of income for the period 1 July 2014 to 31 December 2014, to which must be added lost superannuation contributions of $444.
On that basis, had I made an award of damages on the basis that Mr Panetta had been discriminated against and had proved that it was likely that, but for that discrimination, he would have remained employed at the defendant but, taking into account the finding I made that his medical condition would likely have brought that employment to an end no later than 31 December 2014, I assessed his total loss of income, inclusive of lost superannuation contributions, as having been $153,736. To that figure I would also have added interest pursuant to s 32 of the Supreme Court Act 1935 (WA). I would not have made a deduction for taxation on the basis that any taxation liability for income is between Mr Panetta and the Australian Tax Office: Crowe Horwath (Aust) Pty Ltd v Loone (No 3) [2017] VSC 548 [20]; (2017) 273 IR 310, 317; Bartlett v Australia & New Zealand Banking GroupLtd [2016] NSWCA 30; (2016) 92 NSWLR 639 [92]; (2016) 255 IR 309.
For the reasons detailed earlier in the judgment, however, Mr Panetta's action failed and so no such award was made.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
DD
Associate to Judge Sweeney
6 MARCH 2024
13
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