Rangi and Action Workforce Pty Ltd and Ors
[2019] FCCA 3370
•21 November 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| RANGI & ACTION WORKFORCE PTY LTD & ORS | [2019] FCCA 3370 |
| Catchwords: INDUSTRIAL LAW – Fair work action – breach of general protections – whether the applicant has sought relief against the appropriate respondents – whether the named respondents took unlawful action, or threatened to take adverse action, against the applicant – whether the applicant suffered bullying, harassment or discrimination in contravention of the Fair Work Act – relevant employer of the applicant not named as a respondent to the proceedings – no adverse action established – no contraventions of the Fair Work Act established – application dismissed. |
| Legislation: Fair Work Act 2009 ss.341, 342, 343, 345, 351, 550 |
| Cases cited: Amcor Ltd v Construction, Forestry, Mining and Energy Union (2005) 222 CLR 241 |
| Applicant: | PREM LATA RANGI |
| First Respondent: | ACTION WORKFORCE PTY LTD |
| Second Respondent | ADVANCE MIX PTY LTD |
| Third Respondent | PAUL RIXON |
| File Number: | MLG 629 of 2018 |
| Judgment of: | Judge Blake |
| Hearing date: | 14 & 15 October 2019 |
| Date of Last Submission: | 15 October 2019 |
| Delivered at: | Melbourne |
| Delivered on: | 21 November 2019 |
REPRESENTATION
| Advocate for the Applicant: | Mr Rangi |
| Solicitors for the Applicant: | Rangi Lawyers |
| Counsel for the Respondents: | Mr Denton |
| Solicitors for the Respondents: | Mark Diamond & Associates |
ORDERS
The Application filed on 13 March 2018 be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 629 of 2018
| PREM LATA RANGI |
Applicant
And
| ACTION WORKFORCE PTY LTD |
First Respondent
And
| ADVANCE MIX PTY LTD |
Second Respondent
And
| PAUL RIXON |
Third Respondent
REASONS FOR JUDGMENT
Introduction
The Applicant in this matter is Ms Prem Lata Rangi. She was and remains an employee of the Second Respondent. The Applicant advances various claims against the Respondents. These claims include the following:
a)that the Respondents took unlawful adverse action against her, or threatened to take adverse action against her;
b)that the Respondents engaged in action against her or threatened to do so with intent to coerce her to change her employment conditions;
c)that the Respondents knowingly and recklessly made a false representation to her about her workplace rights;
d)that she suffered bullying, harassment and discrimination at her workplace at the hands of the Respondents.
For the reasons that follow, I have decided to dismiss the claims made by the Applicant.
Background
The Applicant performs work at a mushroom farm in Mernda, Victoria. The farm is owned and operated by Costa Logistics Pty Ltd (‘Costa’).
The Applicant has worked at the farm since 2006. Up until May 2013, she was employed by Oneforce Group Australia Pty Ltd (‘Oneforce’). Oneforce in turn supplied labour to Costa. Oneforce is not a related entity of any of the Respondents.
The Second Respondent is a subsidiary of the First Respondent. The Third Respondent is the General Manager of the First Respondent.
In May 2013, the First Respondent commenced the supply of labour to Costa to work at the farm. Action MMX Pty Ltd (‘Action MMX’), a subsidiary of the First Respondent, offered employment to employees of Oneforce. The Applicant was one of the employees who received an offer of employment from Action MMX. The Applicant accepted the offer of employment from Action MMX and commenced employment with it on around 13 May 2013. She continued to work at the Costa farm following her acceptance of the offer of employment from Action MMX.
Employees who accepted an offer of employment with Action MMX were employed under an enterprise agreement. The enterprise agreement was, relevantly, the same enterprise agreement that had covered the employees when they were employed by Oneforce. The enterprise agreement, renamed, is known as the Action MMX and AWU Mushroom Harvesting and Support Agreement 2012 (the ‘Action Agreement’).
The First Respondent, in or around August 2013, established another entity, Advance Exchange Pty Ltd (‘Advance Exchange’). This entity was established following discussions between Costa and the First Respondent. On 27 August 2013, the Fair Work Commission (‘Commission’) approved an enterprise agreement that covered Advance Exchange. That agreement is known as the Advance Exchange and AWU Costa Exchange – Mushroom Category Enterprise Agreement 2013 (‘Advance Agreement’).
Advance Exchange subsequently made offers of employment to all employees of Action MMX who worked at the farm. Those persons who accepted the offer had their terms and conditions of employment regulated by the Advance Agreement. The Applicant elected not to accept the offer. The consequence for her was that she remained employed by Action MMX under the Action Agreement.
On 4 July 2014, the Applicant was informed that she was no longer required to fill the position of supervisor (the ‘Demotion’). The Applicant, however, remained on the same rate of pay she had enjoyed when she held the position of supervisor. This is a matter to which I will return.
On 5 August 2014, the Applicant filed an application with the Commission. She sought to appeal the decision by the Commission to approve the Advance Agreement. The appeal was brought almost a year after the Commission approved the Advance Agreement.
On 20 November 2014, a Full Bench of the Commission dismissed the Applicant’s appeal. The appeal was dismissed on the basis that the Applicant did not have standing to bring the appeal. This is a matter to which I shall return.
On 27 January 2015, the Applicant initiated proceedings in this Court against Mushroom Exchange Pty Ltd, Action Workforce, Action MMX and Advance Exchange. The Applicant subsequently discontinued those proceedings.
The Applicant remained employed by Action MMX until 20 November 2016, after which the Applicant became employed by Advance Mix Pty Ltd (‘Advance Mix’), the Second Respondent.
The issues in the proceeding
On 28 March 2019, the parties jointly filed a document entitled ‘List of issues, fact and law to be determined by the Court’ (‘Issues List’).
At the commencement of the hearing, an issue arose concerning the claims before the Court. The Applicant submitted that the matters the Court was required to determine were to be drawn from the pleadings and the Issues List. The Respondent submitted that the only issues to be determined by the Court were those set out in the Issues List.
Having heard the parties and reviewed the history of the matter, I determined, for reasons set out in the transcript, that the issues before the Court were confined to those matters set out in the Issues List. Accordingly, this judgment proceeds to deal with each of the claims or issues in the Issues List.
I make one further observation in relation to the claims. The Applicant has commenced a proceeding against the Third Respondent. None of the issues in the Issues List give rise to any claim against the Third Respondent. Furthermore no claim is brought that the Third Respondent was an accessory or involved in any contraventions by any of the other Respondents pursuant to section 550 of the Fair Work Act 2009 (‘FW Act’).
On the basis that no claims have been made against the Third Respondent, any claim against the Third Respondent is dismissed.
The identity of the Applicant’s employer
This issue emerged as a significant one to the proceedings in the following way. Counsel for the Respondents contended that all of the claims raised by the Applicant, except one, arose during a period when she was employed by Action MMX. The Respondents contended that Action MMX was not a respondent in the proceeding. On that basis, it was contended that all of the claims that the Applicant sought to agitate during any period that she was employed Action MMX must fail.
The Applicant sought to meet this argument in two ways.
First, in paragraph 1 of the Applicant’s written submissions, it was submitted that ‘The Applicant has been an employee of the Respondents ever since 13 May 2013 but has been a deemed employee of the Respondents ever since February 2006’ (emphasis in original). It is to be noted from the submission that no entity or individual is identified as the employer: the submission is that all of the Respondents, collectively, have been the Applicant’s employer since February 2006.
The above submission cannot succeed. As a matter of law, the concept of joint employment has not been recognised in Australia. The argument also cannot succeed as a matter of fact. Prior to 13 May 2013, the Applicant was employed by Oneforce. Oneforce is not related to, and has never been related to, any of the Respondents in this proceeding. There is not a basis upon which it can be found that the Applicant has been a deemed employee of the Respondents ever since February 2006.
In closing submissions, it was then contended by the Applicant’s advocate that I should make a finding that the First Respondent is the true employer of the Applicant. There are various difficulties with this submission:
a)First, it was put for the first time in closing argument. The Respondents were denied any opportunity to meet this argument with evidence.
b)Second, the Applicant failed to articulate any meaningful basis upon which it should be said that I should look behind the apparent actual and current employer, Advance Mix.
c)Third, the best evidence as to who the employer of the Applicant is or was is contained in the payslips that were tendered into evidence. It was not contended that the payslips were erroneous or fraudulent, and I accept them as accurate evidence of the matters to which they relate. The payslips are contained in the Supplementary Court Book that was tendered into evidence by the Applicant. Payslips dated 20 June 2013 and 18 July 2013 disclose that the employing entity carried the ABN number 61153481200. It appears from those documents that this entity was originally called Action Workforce MMX Pty Ltd before changing its name to Action MMX. The payslips further disclose that on or about 21 November 2016, the entity paying the Applicant’s wages changed to Advance Mix Pty Ltd, ABN number 59153558653.
The advocate for the Applicant sought to assert that the issue of the identity of the employer was only something that emerged at, or prior to, trial when written submissions were exchanged. That, with respect, is not correct for the reasons that follow.
On 13 March 2018, the Applicant filed proceedings in this Court against the Respondents. The proceedings were commenced by way of Application and Statement of Claim.
The Statement of Claim identified the Respondents as follows:
a)Action Workforce Pty Ltd (ABN 74 099 238 954)
b)Advance MMX Pty Ltd (ABN 59 153 558 653)
c)Paul Rixon.
(emphasis added)
The Defence filed in the proceedings was filed on behalf of the following:
a)Action Workforce Pty Ltd (ABN 74 099 238 954)
b)Advance Mix Pty Ltd (ABN 59 153 558 653)
c)Paul Rixon.
(emphasis added)
It can be seen from the above that in respect of the Second Respondent, the Defence was filed on behalf of Advance Mix. That is the name that matches the ABN number pleaded by the Applicant. The Respondents indicated by their Defence that they understood the claim to be made against the Advance Mix, given the ABN pleaded next to the name of the entity.
If that had been the end of the matter, the Applicant may have had some ground for complaint. However, that was not the end of it. The Respondents took a further step that clearly put the Applicant on notice of this issue. In its Defence, the Respondents clearly identified the following matters:
a)The Applicant is an employee of the Second Respondent, Advance Mix, and has been since November 2016; and
b)Between 13 May 2013 and 20 November 2016, the Applicant was employed by ‘Action MMX Pty Ltd (ACN 153 481 200)’.
As can be seen from the above, Respondents clearly identified the correct name and employer of the Applicant at all times during which she has been an employee.
No issue was taken by the Applicant in relation to this aspect of the Defence. The Applicant did not seek to amend the Statement of Claim to clarify the pleading. She did not seek to add Action MMX as a respondent.
Having regard to the above, and the evidence before me, I find as follows:
a)until May 2013, the Applicant was employed by Oneforce, an entity not related to the Respondents;
b)from around 13 May 2013 until 20 November 2016, the Applicant was employed by Action MMX;
c)since on or around 20 November 2016, the Applicant has been employed by the Second Respondent, Advance Mix.
I now turn to deal with each of the issues set out in the Issues List.
The consequence of the finding of the identity of the employer on the adverse action claims
Many of the claims made by the Applicant are adverse action claims. Questions 2, 4, 6, 8, 12, and 14 in the Issues List are claims that the Applicant has been subjected to adverse action.
‘Adverse action’ is defined in section 342 of the FW Act. Relevantly for this matter, adverse action may only be taken by an employer against an employee.
While the Applicant complains about adverse action that occurred:
a)following the making of the Advance Agreement in 2014;
b)following her alleged demotion in 2014;
c)following the appeal to the Commission in 2014;
d)following the filing of her General Protections Application in 2015,
she has not commenced a claim against her employer at those relevant times. Her employer at those relevant times was Action MMX. As her employer at that time is not a party to the proceeding, any claim of adverse action alleged to have taken place prior to her employment with her present employer must fail when one has regard to the definition of ‘adverse action’ in section 342 of the FW Act.
Further, to the extent it may be necessary to do so, in considering the claims of adverse action, I have had regard to the application of a ‘before and after’ test that is usually applied to see whether a person has been subjected to adverse action: see Unsworth v Tristar Steering & Suspension Australia Ltd [2008] FCA 1224.
The conclusions and observations above have implications for the each of the claims in the Issues List.
Claim and allegations concerning the Advance Agreement
The issues before the Court in relation to the Advance Agreement are as follows:
‘1. Whether any Respondent can be held responsible for the Fair Work Commission's approval of the Advance Exchange and AWU Costa Exchange - Mushroom Category Enterprise Agreement ([Advance] Agreement) on application of Advance Exchange Pty Ltd.
2. If the answer to Question 1 is yes, whether the Fair Work Commission's approval of the [Advance] Agreement was adverse action against the Applicant as it resulted in adverse action against the Applicant within the meaning of s 342(1) of the FW Act?
3. Whether the Applicant's refusal to be covered by the [Advance] Agreement was a workplace right within the meaning of s 341(1) of the FW Act.
4. If the answer to Question 3 is yes, whether the adverse action was taken against the Applicant because she refused to transfer her employment conditions to be covered by the [Advance] Agreement in contravention of s 340 of the FW Act.’
In my view, the answer to question 1 and question 2 must be ‘no’. The act of approving an enterprise agreement is an act that only the Commission can take. It is not an act that was taken by any employer of the Applicant. It was certainly not an act taken by her present employer who is a Respondent to the proceeding. None of the Respondents can be held responsible for the approval of the Advance Agreement. The Commission cannot take adverse action against the Applicant by reason of exercising its statutory powers.
Question 3 is whether the Applicant’s refusal to be covered by the Advance Agreement is a workplace right within the meaning of section 341(1) of the FW Act. Put another way, the relevant question is whether the Applicant’s insistence that she remain covered by the Action Agreement was the exercise by her of a workplace right.
The term ‘workplace right’ is defined in section 341 of the FW Act. Counsel for the Respondents properly conceded that this question must be answered in the affirmative. I find that the Applicant’s insistence that she remain covered by the Action Agreement was the exercise by her of a workplace right within the meaning of section 341 of the FW Act.
In my view, the answer to Question 4 is ‘no’. I have considered the Applicant’s evidence closely in relation to the adverse action she claims to have suffered because of her refusal to become covered by the Advance Agreement. I am satisfied that the adverse action she complains about occurred in a period that followed the making and approval of the Advance Agreement. So much is apparent from paragraph 14 of her affidavit sworn on 5 July 2018. This claim of adverse action must fail for the following reasons.
First, for the reasons set out earlier, she has not brought a claim against her employer at that time and adverse action may only be taken by an employer against an employee. While it may be regarded as obvious to say so, her current employer could not have taken adverse action against her following her insistence on remaining covered by the Action Agreement.
Second, when the evidence is read, I am not satisfied that there is any other claim of adverse action that could be brought against the Second Respondent on the basis that the Second Respondent took adverse action against the Applicant in the period after November 2016 because she insisted upon her workplace right to remain covered by the Action Agreement.
If I am wrong in respect of my analysis of the claims above, I make the following observations. Putting to one side the issue of demotion that I deal with below, an aspect of the Applicant’s claims that features throughout her complaints in this proceeding is that her working hours were reduced and that her employment was made less secure. Her advocate at the hearing made submissions on the basis of the payslips that were in evidence, that her hours of work had reduced during certain periods and invited the Court to draw the conclusion that the Applicant had been subjected to adverse action.
I do not accept the submission above for the following reasons.
The evidence discloses that at all relevant times, the Applicant was engaged as an employee on a casual basis. Casual employment is, by its nature, not secure. The essence of a being an employee engaged on a casual basis is that there is no guarantee or commitment that work will be provided. Employment on a casual basis is by its nature, less secure. In Workpac v Skene [2018] FCAFC 131, the Full Court described the essence of casual employment in the following terms:
‘[172] In contrast, a casual employee has no firm advance commitment from the employer to continuing and indefinite work according to an agreed pattern of work. Nor does a casual employee provide a reciprocal commitment to the employer. That characteristic, drawn from Hamzy, is what White J referred to in more general terms in South Jin at [71] as “any commitment by the employer or the worker to ongoing employment”. In our view, what is referred to in Hamzy as the “essence of casualness”, captures well what typifies casual employment and distinguishes it from either full-time or part-time employment.
[173] The indicia of casual employment referred to in the authorities — irregular work patterns, uncertainty, discontinuity, intermittency of work and unpredictability — are the usual manifestations of an absence of a firm advance commitment of the kind just discussed. An irregular pattern of work may not always be apparent but will not necessarily mean that the underlying cause of the usual features of casual employment, what Hamzy identified as the “essence of casualness”, will be absent.’
I have also considered the evidence of Mr Brettell, who is the Victorian State Manager of the First and Second Respondents. Mr Bretell gave evidence, among other things, that the Applicant’s hours were never reduced by the Respondents. His evidence was also that any hours the Applicant worked were determined, ultimately, by Costa. I accept this account. Accordingly to the extent the Applicant’s hours were reduced, those were actions taken by Costa, not by any of the Respondents.
Mr Brettell also gave evidence that there were commercial reasons behind the decision to seek approval of the Advance Agreement, that he has been especially careful in his dealings with the Applicant, and that he has never made any decision or taken any action against the Applicant because of her decision to remain covered by the Action Agreement. Mr Brettell’s evidence in relation to these matters was largely unchallenged. To the extent he was challenged under cross examination, I accept his version of events as more probable than that of the Applicant’s version of events. In short, I accept the evidence of Mr Brettell.
Accordingly, for all of the reasons above, I find that the Applicant has not been subjected to any adverse action as a result either of the decision of the Commission to approve the Advance Agreement, or because of the Applicant’s insistence to remain covered by the Action Agreement.
Claim and allegations concerning the Demotion in 2014
In respect of the alleged demotion, the issues raised in the Issues List are as follows:
‘5. Whether the Applicant was demoted by any Respondent in July 2014.
6. If the answer to Question 5 is yes, whether that demotion was adverse action against the Applicant within the meaning of s 342(1) of the FW Act.
7. If the answer to Question 6 is yes, whether the Applicant's refusal to be covered by the [Advance] Agreement was a workplace right within the meaning of s 341(1)W of the FW Act.
8. If the answer to Question 7 is yes, whether the adverse action was taken against the Applicant because she refused to transfer her employment conditions to be covered by the [Advance] Agreement in contravention of s 340 of the FW Act.’
The Applicant’s contentions in relation to this issue are that she had been a supervisor for more than four years. Her contention is that when she indicated that she wished to remain covered by the Action Agreement, she was demoted to the role of ‘back-up’ supervisor. She says this was a diminution in her duties which caused her, among other things, injury in her employment.
I have considered the Applicants claim carefully. Her evidence, at paragraph 15 of her affidavit affirmed 5 July 2018, is that ‘on or around 4 July 2014, the First and Third Respondent demoted me from Supervisory duties to Level-1 employee duties’. I do not accept that evidence. Neither the First nor Third Respondent employed the Applicant at any time. They cannot have been responsible for any act of demoting her. Further, the Second Respondent cannot have been responsible for demoting her. This is because she was not employed by the Second Respondent at the time the alleged demotion occurred.
To the extent that anything further needs to be considered in relation to this matter, I have had regard to the evidence given by Mr Brettell. Mr Brettell’s evidence is that Costa controlled the work. His evidence was to the effect that Costa made a decision that it no longer required supervisors. The Applicant and another employee were then informed that Costa did not require them to be supervisors. Mr Brettell’s evidence was that this was agreed to, in order to keep an important client, Costa, happy. His evidence was that this was the sole reason why the Applicant’s role as a supervisor was discontinued. He also expressly denied that the demotion occurred because of the Applicant’s insistence on being covered by the Action Agreement.
I accept the evidence of Mr Brettell in relation to the above. Further, it seems to me that the position advanced here is similar to the reasons why Collier J in Director, Fair Work Building Industry Inspectorate v ADCO Constructions Pty Ltd (No 2) [2016] FCA 1463 at [187] found that an intermediate decision-maker will not have committed an adverse action. That is, in this matter, the evidence is that Mr Brettell (and any relevant Respondent) acted not because of the exercise of a workplace right by the Applicant, but rather acted in order to satisfy the client.
For all of the reason set out above I conclude in relation to each of questions 5 – 8 of the Issues List, as follows:
a)The answer to question 5 is ‘no’;
b)The answer to question 6 is ‘no’;
c)The answer to question 7 is ‘yes’; and
d)The answer to question 8 is ‘no’.
Allegations concerning the freezing of the Applicants pay
The issues in relation to this matter arising from the Issues List are as follows:
‘9. Whether the Oneforce and AWU Mushroom Harvesting & Support Staff Agreement 2012 (MMX Agreement) required the Applicant's rate of pay to be increased by 3% per annum for each year that it applied to the Applicant's employment.
10. If the answer to Question 9 is yes, whether the failure to increase the Applicant's pay for each year that the MMX Agreement applied to the Applicant's employment was action taken by any Respondent with an intent to coerce the Applicant to transfer her employment conditions to be covered by the [Advance] Agreement within the meaning of s 343 of the FW Act.’
(emphasis in original)
Resolution of this issue requires the Court to properly interpret clause S.A.2 of Schedule A of the Action Agreement. The relevant clause is as follows:
‘S.A.2 INCREASES TO WAGE RATES AND ALLOWANCES
With effect from the first pay period on or after 31st March 2012, the wage rates set out in the commencement rate column of S.A.3 below will be increased by 2%.
Two further increases of to these wage rates and allowances will be paid with effect from the first pay period on or after:
(a) 3% increase from 31st March 2013
(b) 3% increase from 31st March 2014
as set out in the remaining columns of S.A.3’ (sic)
The approach to interpreting enterprise agreements is well-settled. The relevant principles have been most recently encapsulated in the decision of the Full Court of the Federal Court of Australia in Workpac v Skene [2018] FCAFC 131. The starting point to interpreting an enterprise agreement is to look at the ordinary meaning of the words, read as a whole and in context, including the industrial context. An enterprise agreement is to be viewed in the context of it having been drafted by those of a ‘practical bent of mind’[1] rather than having regard to legal niceties or jargon.
[1] Amcor Ltd v Construction, Forestry, Mining and Energy Union (2005) 222 CLR 241 at [96] as cited in Workpac v Skene [2018] FCAFC 131.
The Applicant made a number of submissions in relation to the pay rates under the Action Agreement. The principal submission was that the rates of pay under the Action Agreement were kept stagnant in circumstances where the Agreement required an annual increase of 3% per annum for every year. There was also a submission advanced that the rates of pay in the Action Agreement were kept stagnant in order to coerce employees (including the Applicant) to give up the benefits contained in the Action Agreement, and to take up employment with Advance Exchange and become covered by the Advance Agreement. It was also contended, without particulars or context, that the Respondents had engaged in an act of corruption by engaging and paying money for votes in favour of the Advance Agreement.
The submission that the Respondents engaged in corruption is scandalous and without basis. It is a serious allegation to make. No particulars of this were provided. It was not addressed in written submissions. I was not taken to any evidence to suggest that corruption had occurred. I do not accept the submission and dismiss any such claim outright.
I then turn to consider the Action Agreement. The Action Agreement does not require the employer to increase wages annually by 3% on an ongoing basis. It is clear when the Agreement is read in context that employees were entitled to a 2% increase in wages in the first pay period on or after 31 March 2012. It is clear that two further increases to wages were to be paid. The first was to occur on or after 31 March 2013. The second was to occur on or after 31 March 2014. The relevant table contained in the clause that follows specifically sets out the increases and the dates on which they are to be paid. There is nothing in the Action Agreement that indicates that any wage increase is due beyond that which is expressly provided for under the terms of the Action Agreement.
Although it is strictly not necessary for me to do so having regard to the findings I have made above, I turn to deal with the issue that the failure to award pay increases was an attempt by the Respondents to coerce the Applicant to give up the benefits of the Action Agreement.
In my view, there is no basis for a finding that any of the Respondents attempted to coerce the Applicant to give up the benefits of the Action Agreement by withholding pay increases that were due to her. I hold this view for three reasons. First, as I have already found above, she was not entitled to any pay increments under the Action Agreement other than those specified in Schedule A. Secondly, the allegation that the Respondents have contravened section 343 of the FW Act is a serious one. The Applicant has made no attempt to identify which Respondent is said to have taken the action, has not pleaded the intent of the relevant Respondent was to negate choice, and has not stated how the action taken by the relevant Respondent was unlawful, illegitimate or unconscionable. Without those fundamental aspects, the allegation must fail: see Australian Building and Construction Commissioner v Hall [2018] FCAFC 83; 261 FCR 347 at [18]-[20]; [25]; [38]-[41]. Thirdly, Mr Brettell, whose evidence I have accepted, has expressly denied taking any action against the Applicant.
For all of the above reasons, the answer to question 9 and 10 in the Issues List must be ‘no’.
Claims and allegations concerning the 2014 Fair Work Commission Appeal
The issues in the Issues List in relation to this topic are as follows:
‘11. Whether the Applicant's filing of an appeal with the Fair Work Commission against the approval of the [Advance] Agreement on 5 August 2014 was the exercise of a workplace right within the meaning of s 341(1) of the FW Act.
12. If the answer to Question 11 is yes, whether any Respondent took adverse action against the Applicant within the meaning of s 342(1) of the FW Act because she filed an appeal with the Fair Work Commission in the form of:
(a) preparing bogus assessment reports against the Applicant;
(b) forcing the Applicant to work at a temperature of 4 degrees without provision of warm clothing;
(c) reducing the Applicant's working hours to the extent that in some weeks, the Applicant worked just two days in a week,
in contravention of s 340 of the FW Act.’
Whether the filing of an appeal with the Commission is the exercise of a workplace right is a matter to be determined having regard to the terms of section 341 of the FW Act.
Section 341(1)(b) provides that a person has a workplace right if the person ‘is able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument’ (emphasis added).
I accept the proposition, which I understand to be advanced by the Applicant, that the filing of an appeal pursuant to the FW Act would be a ‘process or proceedings under a workplace law or workplace instrument’. That, however, is not the only matter that needs to be taken into account. As noted above, a person will only have the relevant workplace right if that person ‘is able’ to initiate the relevant process or proceeding.
The Respondent submitted that the Applicant did not enjoy a workplace right within the meaning of section 341(1)(b). This is because the Applicant was not a person that was able to initiate the appeal proceeding that she sought to agitate at the Commission.
The Applicant’s appeal proceeding was dealt with by a Full Bench of the Commission. The Full Bench dismissed the appeal. It did so because it found that she was not a person aggrieved by the decision: see [24] of the decision of the Commission, as reproduced at page 277 of the Court Book. It also found that even if she had been prejudiced by the decision to approve the Advance Agreement, such prejudice did not arise from the decision to approve the Advanced Agreement - at [25]. Finally, at paragraphs [28] to [29], the Commission concluded as follows:
‘[28] The Advance Exchange Agreement does not cover or apply to the Appellant. The Appellant has not demonstrated an interest beyond that of an ordinary member of the public in the approval decision.
[29] For these reasons we are not persuaded that the Appellant has standing to bring her appeal and dismiss the appeal.’
When the decision of the Full Bench is considered, it is plain that the Full Bench was of the view that the Applicant was not able to initiate the appeal proceedings. That conclusion led to the dismissal of the appeal proceedings.
I am unable to find any fault with the reasoning of the Commission that the Applicant was not able to initiate the appeal proceedings. I adopt the Commission’s reasons. Having done so, the conclusion that must follow is that, for the purposes of section 341(1)(b) of the FW Act, the Applicant was not able to initiate a process or proceedings under a workplace law or workplace instrument when she sought to appeal the Commission’s decision. She therefore did not have a workplace right within the meaning of section 341(1)(b) of the FW Act. Accordingly, the answer to question 11 must be ‘no’.
Question 12 is a claim that the Respondents took adverse action against the Applicant. The Applicant’s evidence is that she was harassed, among other things, in the aftermath of her making an appeal to the Commission. Her evidence about the harassment that she suffered is set out at, among other places, paragraph 19 of her affidavit of 5 July 2018.
I have considered the evidence of the Applicant closely. It is apparent that her evidence about the adverse action she suffered occurred ‘following the FWC Appeal’. The appeal proceedings occurred in 2014. The Applicant’s evidence must be understood as meaning that the events she complains about occurred either in 2014 or 2015. Support for that proposition is to be gained from the ‘bogus’ reports the Applicant complains about and which were annexed to her affidavit of 5 July 2018.
The Applicant’s claim that she suffered adverse action following the Commission appeal must fail. As I have already noted, the Applicant’s employer at that time, Action MMX, is not a party to the proceedings. It therefore cannot be held liable for any adverse action that might have occurred following the Commission appeal. Further, in my view, none of the present Respondents to the proceeding can be held to account for any adverse action that may have been suffered. This is because the Applicant’s own evidence is that the events about which she complained occurred following the Commission appeal, which I regard as having occurred in 2014 and 2015, at a time when none of the present Respondents were her employer within the meaning of section 342 of the FW Act.
For all of the reasons set out above, the answer to question 11 and question 12 is ‘no’.
Claims and allegations concerning the 2015 Application to this Court
The questions from the Issues List in respect of this matter are as follows:
‘13. Whether the Applicant's filing of the General Protections application with the Federal Circuit Court of Australia on 27 January 2015 was the exercise of a workplace right within the meaning of s 341(1)(b) of the FW Act.
14. If the answer to Question 13 is yes, whether any Respondent took adverse action against the Applicant within the meaning of s 342(1) of the FW Act because she filed the General Protections application in the form of reducing her working hours (especially on weekends and public holidays), and not paying her purported bonus which was paid to employees transferring to new agreement in October 2018 in contravention of s 340 of the FW Act.
15. Whether the 'Calder-bank Offer' of September 2015 constituted a knowingly or recklessly false or misleading representation about the Applicant's workplace rights within the meaning of s 345(1)(a) of the FW Act.’ (emphasis in original)
On 27 January 2015, the Applicant filed an application alleging contraventions of the General Protections provisions of the FW Act in this Court. The Applicant submits, and the Court accepts, that the filing of that application was the exercise of a workplace right within the meaning of section 341(1)(b).
The Applicant’s evidence in relation to the adverse action she alleged she suffered is set out, among other places, at paragraph 23 of her affidavit affirmed 5 July 2018. She there lists a number of matters said to constitute the adverse action. Her evidence is that those actions occurred ‘following the General Protection Applications’. The sub paragraphs detailing each of the alleged adverse actions indicate that the actions about which she complains occurred in 2014.
I find that none of the alleged adverse actions were attributable to the Respondents.
Firstly, a number of the actions detailed in paragraph 23 of the Applicant’s affidavit dated 5 July 2018 relate to events that occurred in 2014. Self-evidently, alleged actions that were taken in 2014 cannot have been taken against the Applicant because she made a General Protection Application to this Court in January 2015.
Second, whatever actions the Applicant might be complaining about, it is apparent that they occurred in the time ‘following’ the General Protections Application. That application was made on 27 January 2015 2015 and discontinued on 18 January 2016. Any alleged adverse actions taken following the General Protections Application can only have been taken by the Applicant’s then employer, Action MMX. Action MMX is not a party to this proceeding. It cannot be held liable for any of those actions. Nor can the present Respondents be held liable for those actions which occurred immediately following the General Protections Application.
It can be seen that in its terms, question 14 directs attention to the specific claim that the Applicant’s hours were reduced. To the extent that it does so, I find, consistent with my earlier findings, that the Applicant’s hours were set by Costa. Any actions of Costa are not attributable to the Respondents.
Question 14 also directs specific attention to the alleged non-payment of a bonus to the Applicant which occurred in 2018. This allegation is capable of constituting adverse action by the Second Respondent. The bonus the Applicant claims she was entitled to, and did not receive, is a bonus payable in October 2018. This Claim arises from evidence of the Applicant that the Respondents offered money to get the ‘[Advance] Agreement’ approved, and also that in 2018, employees were offered an $800 bonus for ‘transferring to [Advance] Agreement’.
Mr Brettell gave evidence about the bonus. He deposed that the bonus was only payable to persons who became covered by the new enterprise agreement covering Advance Exchange: the Advance Exchange and AWU – Costa Mushroom Category Agreement 2017 (‘2017 Agreement’). His further evidence, was that the payment made was not a bonus payment, but a payment relating to back payments payable to some employees. As the Applicant is not employed by Advance Exchange, she was not eligible for the bonus.
I accept the evidence of Mr Brettell on this point. While the Applicant clearly wanted to be paid the ‘bonus’, she was not a person that was covered by the 2017 Agreement because of her election to remain covered by the Action Agreement. That was an election she was entitled to make. Having made the election, she cannot then complain that she did not receive a payment made to employees covered by a different industrial arrangement. I therefore find that the action in not paying to the Applicant the bonus was not adverse action because it was not taken for a proscribed reason.
There is then the matter of the ‘Calderbank offer’ made in September 2015. Counsel for the Respondents contended that a ‘Calderbank offer’ was not in evidence before me. It was submitted that question 15 must be answered in the negative because the Court could not make a finding as to whether any representation within it was false or misleading.
The advocate for the Applicant submitted that the ‘Calderbank offer’ was in evidence as exhibit LR-8 to the Affidavit of the Applicant affirmed on 5 July 2018.
A Calderbank letter or offer is a letter that contains an offer and is made on the basis that it is ‘without prejudice save as to costs’. In other words, the letter remains confidential between the parties during the running of a trial, until such time as matters have been determined in the Court. If a question then arises as to how costs should be awarded, the letter may be produced so the Court may consider the terms of the offer, and what consequence the contents have for any order as to costs.
The letter in exhibit ‘LR8’ is expressed to be an ‘open offer’. While the second page of the letter sets out potential cost consequences for the Applicant if she does not accept the offer contained therein, that of itself in my view does not make it a ‘Calderbank offer’. It is clearly an open offer. It is missing an essential ingredient of a Calderbank offer; that is, that the offer contained within is to remain confidential until such time as costs become an issue.
For the above reasons, I accept the submissions of the Respondent that there is not a ‘Calderbank offer’ in evidence. On that basis, the claim that a ‘Calderbank offer’ was made that constitutes or contains a knowingly or recklessly false or misleading representation about the Applicant’s workplace rights must be dismissed
For the reasons set out above:
a)the answer to question 13 is ‘yes’;
b)the answer to question 14 is ‘no’; and
c)the answer to question 15 is ‘no’.
Claims and allegations concerning the events of 24 October 2017
The matters arising from the Issues List in respect of these events are as follows:
‘16. Whether the Applicant's letter dated 24 October 2017 entitled "conclusion of investigation into my complaint against discrimination" was the exercise of a workplace right within the meaning of s 341(1).
17. If the answer to Question 15 is yes, whether the email response of Andrew Bretell dated 24 October 2017 was a threat to take action against the Applicant by not giving her work in the future with the intent to coerce the Applicant not to make a complaint in the future within the meaning of s 343 of the FW Act.
18. In any event, whether the email response of Andrew Bretell dated 24 October 2017 constituted a knowingly or recklessly false or misleading representation about the Applicant's workplace rights within the meaning of s 345(1)(a) of the FW Act.’
These claims all arise in the period during which the Applicant was employed by the Second Respondent.
In order to understand the issue, it is necessary to briefly set out some background. On 8 October 2017, the Applicant wrote to Mr Paul Rixon the general manager of the First Respondent. In that letter, she complained about being discriminated against. The discrimination complained of was not discrimination on the basis of a protected attribute, for example, the list of protected attributes set out at section 351 of the FW Act. Rather, the complaint was about an allegation that the Applicant’s hours of work on weekends and public holidays had been restricted, or that her hours of work were otherwise reduced, including, for a reason that she failed to agree to be covered by the Advance Agreement.
Mr Brettell responded to the complaint in writing on 23 October 2017. In his response, he noted the complaint made, noted that he had held further discussions with the Applicant and sought further particulars from her about the complaint. In the letter, Mr Brettell also noted that the Applicant had identified other people that needed to be spoken to in the course of the enquiry, and that he (Mr Brettell) had followed up with those persons. Having done so, in his letter, Mr Brettell stated that he was unable to conclude that the Applicant had been discriminated against. He indicated that unless the Applicant provided further information, he was not proposing to take any further action in respect of the claims.
I pause to observe that in many ways, the letter from Mr Brettell is entirely unremarkable. It is the type of letter ordinarily sent by many employers following the conclusion of a workplace investigation or enquiry.
The Applicant then responded to the letter from Mr Brettell on 24 October 2017. In her letter of 24 October 2017, the Applicant says that she believes some very obvious information in relation to the investigation was not taken into account. She also complains that there has been a failure to address the issue of ongoing discrimination, and that there has been a failure to provide reasons as to why she has not been given work on weekends and public holidays.
The Applicants claim as disclosed in the Issues List arises from her letter of 24 October 2017 outlined above. Question 16 asks whether the letter above was the exercise of a workplace right by the Applicant within the meaning of section 341(1)(c) of the FW Act. Section 341(1)(c) provides, relevantly, that a person has a workplace right if the person ‘is able to make a complaint or enquiry… if the person is an employee- in relation to his or her employment’.
In Environmental Group Ltd v Bowd [2019] FCA 951, Justice Steward of the Federal Court of Australia considered the question of whether an employee ‘is able’ to make a complaint or enquiry in relation to their employment. His Honour, noting comments of Her Honour Justice Dodds-Streeton in Shea v TRUenergy Services Pty Ltd (No 6) [2014] FCA 271, and also the Full Court’s treatment of the issue in Cigarette and Gift Warehouse Pty Ltd v Whelan [2019] FCAFC 16, was of the view that the ‘right’ to complain must be found in some entitlement or right contained in, for example, a contract. The full quote relied on by Justice Steward, from paragraph [625] of Dodds-Streeton J’s decision in Shea, is set out below:
‘In my opinion, the requirement that the complaint be one that the employee “is able to make” in relation to his or her employment suggests that there are complaints which the employee is not able to make in relation to his or her employment. The ability to make a complaint does not arise simply because the complainant is an employee of the employer. Rather, it must be underpinned by an entitlement or right. The source of such entitlement would include, even if it is not limited to, an instrument, such as a contract of employment, award or legislation.’
I have applied the observations of Steward J and Dodds-Streeton J to the present matter. In my view, the Applicant’s letter of 24 October 2017 does not constitute the exercise of a workplace right by the Applicant for the following reasons. First, the Applicant has not identified any instrumental basis (as contemplated by Steward J) which gives rise to her being ‘able’ to make the complaint. Second, and putting to one side the Applicant’s ability to point to an instrumental basis for making the complaint, it is not obvious to the Court how the matters the subject of the complaint could be linked to an instrumental basis for the making of a complaint. The letter complains about the conduct of the enquiry and information that she believes was missed. No claim is made, and there is no evidence before me, of there being a workplace policy which might give rise to a finding that an instrument exists that governs, for example, the conduct of workplace inquiries or investigations. When these matters are considered I am of the view that the letter does not constitute the exercise of a workplace right by the Applicant.
I am conscious that there is some authority that suggests that whether an employee is able to make a complaint or inquiry is broader than the basis set out by Steward J and Dodds-Streeton J. If this approach were taken, I then need to address question 17 in the Issues List. Question 17 of the Issues List is directed to the content of Mr Brettell’s response on
24 October 2017. Having considered the letter of 24 October 2017, I remain of the view that the letter of does not constitute or give rise to conduct capable of contravening section 343 of the FW Act. I hold this view for the following reasons:
a)Mr Brettell’s letter does the following things. It notes the objections raised by the Applicant, identifies further enquiries made in light of those questions or objections, restates the position that the Applicant has not been subject to discrimination, confirms the Applicant’s status is that of a casual employee, and refutes any suggestion that she has been treated differently;
b)There is nothing in the language used in the letter that conveys a threat;
c)The letter does not manifest an intention to negate choice. There is, for example, nothing in the nature of an ultimatum that is put to the Applicant;
d)Mr Brettell’s evidence, which I accept, is that he did not intend to threaten the Applicant;
e)I am unable to discern any conduct or threat by the Respondents or Mr Brettell that would constitute conduct that is unlawful, illegitimate or unconscionable.
For all of the above reasons, I find that there has not been a contravention of section 343 of the FW Act.
Issue 18 raises a question as to whether the letter of Mr Brettell, dated 24 October 2017, contravenes section 345 of the FW Act.
While the Applicant makes a claim that the content of the letter constitutes misrepresentation, she has not identified with clarity the statements in the letter said to constitute the misrepresentation. I have examined the letter closely. From my understanding of the facts and the evidence, the only statements made by Mr Brettell which might be capable of constituting a statement about a workplace right are the statements he makes about the Applicant’s status as a casual employee.
I find that the statements made by Mr Brettell in relation to the Applicant’s status as a casual employee do not contravene section 345 of the Act. I hold this view for the following reasons:
a)the Applicant’s status as a casual employee of itself is not a workplace right within the meaning of section 341(1) of the FW Act;
b)the Applicant was, as a matter of fact, a person employed on a casual basis; and
c)Mr Brettell’s evidence is that he genuinely understood the Applicant to be employed on a casual basis.
For the reasons set out above, the answers to questions 16, 17 and 18 are ‘no’.
Claims concerning bullying and harassment
In respect of these matters, the issues from the Issues List are as follows:
‘19. Whether the applicant suffered bullying, harassment and discrimination during her employment with the Respondents?
20. If answer to question 19 is yes, whether, the respondents took any remedial action to stop the bullying and harassment against the applicant at workplace?’
A theme that runs through the Applicant’s material is that she has been bullied, discriminated against, and harassed. In many instances, these allegations are made in the broadest terms. There is a bare assertion of bullying, harassment or discrimination, without any particulars. Where this occurs, I am unable to take the matter further. Such claims must be dismissed.
There are some complaints that provide slightly more detail. For example, she says she suffered bullying, harassment, and discrimination following attempts to ‘coerce’ her to transfer to the Advance Agreement, following the appeal to the Commission and following the making of the General Protections Application. Outside of the specific matters which I have already addressed above, however, it is difficult to identify the precise nature of what is being complained about. To the extent the bullying, etc. is said to be the adverse action complained about, I have already dealt with those issues earlier in this judgment.
The larger issue for the Applicant, however, is that the issues contained in the Issues List above do not identify or link to a cause of action nor is it specified as to how the bullying, discrimination or harassment is unlawful. For example, there is no allegation that any bullying or harassment occurred because of a protected attribute as set out in section 351 of the FW Act. There is no allegation that the harassment was sexual harassment. There is no claim that the alleged bullying contravened any statute, was contrary to any obligation contained in the terms of employment, or that the employer somehow breached a requirement to take particular action in respect of it. Rather, the Court, by virtue of questions 19 and 20, is being asked to embark upon an exercise to identify whether bullying, harassment or discrimination occurred without reference to any statutory or common law test.
I decline to entertain questions 19 or 20. They do not contain, in the terms in which they are expressed, any allegation of unlawfulness. The Court cannot undertake an evaluative exercise in the absence of an appropriate statutory or common law framework against which to make its findings. Furthermore it is not for the Court to go looking for the cause of action. It was incumbent upon the Applicant to identify the cause of action and to ensure that the issues in the Issues List raise questions that the Court was capable of answering.
For all of the above reasons, the Application filed on 13 March 2018 must be dismissed.
I certify that the preceding one hundred and sixteen (116) paragraphs are a true copy of the reasons for judgment of Judge Blake
Associate:
Date: 21 November 2019
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