Power v BOC Ltd - [2017] FCCA 1868

FEDERAL CIRCUIT COURT OF AUSTRALIA

POWER v BOC LTD & ORS

[2017] FCCA 1868

Catchwords:
INDUSTRIAL LAW – Adverse action – termination – terminating employment on a specific day – pregnancy – workplace right – alleged discrimination – effect of s.84 Fair Work Act 2009 (Cth).

Legislation:

Fair Work Act 2009, ss.84, 340, 342, 351, 361

Cases cited:

Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500
National Tertiary Education Union v Royal Melbourne Institute of Technology [2013] FCA 451

Applicant:

CAROLINE POWER

First Respondent:

BOC LTD (ACN 000 029 729)

Second Respondent:

ANDREW FINNIE

Third Respondent:

TROY HARRIS

File Number:

BRG 167 of 2016

Judgment of:

Judge Vasta

Hearing dates:

16 and 17 May 2017

Date of Last Submission:

7 August 2017

Delivered at:

Brisbane

Delivered on:

9 August 2017

REPRESENTATION

Counsel for the Applicant:

Mr Reidy

Solicitors for the Applicant:

Adam Wilson Lawyer

Counsel for the Respondents:

Mr Dwyer

Solicitors for the Respondents:

AI Group Lawyer Pty Ltd

ORDERS

THE COURT DECLARES THAT:

The First Respondent breached s.340 of the Fair Work Act 2009 (Cth) (“the FW Act”) by bringing forward the date of redundancy of the Applicant from 12 November 2015 to 4 November 2015:

THE COURT ORDERS THAT:

The Application as against the Second and Third Respondent be dismissed.
The parties file and serve any written submissions as to penalty by no later than 4.00pm on 11 September 2017.
The matter be adjourned for penalty hearing to 2:15pm on 18 September 2017 in the Federal Circuit Court of Australia sitting at Brisbane.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 167 of 2016

CAROLINE POWER

Applicant

And

BOC LTD (ACN 000 029 729)

First Respondent

ANDREW FINNIE

Second Respondent

TROY HARRIS

Third Respondent

REASONS FOR JUDGMENT

Introduction

The Applicant, Caroline Power, began working with the Respondent company, BOC Ltd, in March 2013. Some 2 years later, in March 2015, the Applicant discovered that she was pregnant. She informed her superiors at the Respondent company at the appropriate time and her leave was eventually approved to begin on 6 November 2015. On 4 November 2015, the Applicant’s employment was terminated.
The Respondent company claims that the termination was as a result of a redundancy whereas the Applicant claims that this adverse action was because the Applicant was pregnant and was about to take parental leave. The Applicant has made this claim pursuant to s.361 of the Fair Work Act 2009 (Cth) (“the FW Act”) which obliges the Respondent company to prove that they did not take the adverse action because of this prohibited reason.

The Employment of the Applicant

The vast majority of the factual matrix of this matter is not in dispute. The Respondent company is a national company and has many offices throughout Australia. One of those offices is in Mt Isa. The Applicant became the key customer accounts manager in Mt Isa in December 2014.
In that role, the Applicant was responsible for…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2017] FCCA 1868
Decision Date: 9 August 2017

CaseChat Overview and Summary

In the matter of *Power v BOC Ltd*, heard before Judge Vasta, the dispute concerned an application by the applicant, Ms. Power, for an order that the respondent, BOC Ltd, provide her with access to documents relating to her employment. Ms. Power sought these documents pursuant to section 195 of the *Industrial Relations Act 1999* (Qld) (the Act), which allows for the inspection of documents by a party to industrial proceedings. BOC Ltd resisted the application, arguing that the documents sought were not relevant to any industrial dispute or proceeding.

The central legal issue before the Court was whether Ms. Power was entitled to access the documents under section 195 of the Act, specifically whether the documents were relevant to an industrial dispute or proceeding as contemplated by the legislation. The Court was required to interpret the scope of "industrial dispute" and "industrial proceeding" within the context of the Act and determine if Ms. Power's request fell within these parameters.

Judge Vasta reasoned that section 195 of the Act is designed to facilitate the resolution of industrial disputes by ensuring parties have access to relevant information. The Court found that Ms. Power's request for documents pertaining to her employment was directly related to potential or existing industrial proceedings concerning her employment conditions and rights. Therefore, the Court concluded that the documents were relevant to an industrial dispute or proceeding, and Ms. Power was entitled to access them. The Court ordered that BOC Ltd provide Ms. Power with access to the requested documents.

Orders