Rilstone v BP Australia Pty Ltd - [2008] FCA 44

FEDERAL COURT OF AUSTRALIA
Rilstone v BP Australia Pty Ltd [2008] FCA 44
INDUSTRIAL LAW – alleged contravention of s 400(5) Workplace Relations Act 1996 (Cth) – allegation that employee placed under duress to sign AWA – claim not established on evidence – Held: dismissed.
INDUSTRIAL LAW – alleged failure to comply with requirements of Division 12 Part 8 Chapter 2 Workplace Relations Regulations 2006 – limited submissions on proper construction of Regulations – full names and addresses not appearing on AWAs – intended operation of Regulations unclear – Held: No liability to penalty imposed by reg 8.11 – extent of obligation imposed on employer by reg 8.13(2) limited by reg 8.13(1).
Workplace Relations Act 1996 (Cth) ss 167, 324, 340, 341, 342, 400, 407, 418
Workplace Relations Regulations 2006 regs 14.3, 14.4, 8.11, 8.12, 8.13, Div 12 of Part 8 of Chapter 2
Aronson M, Dyer B and Groves M, Judicial Review of Administrative Action 3^rd Ed (Thomson Lawbook Co, 2004)
INSPECTOR AARON RILSTONE (OFFICE OF WORKPLACE SERVICES) v BP AUSTRALIA PTY LTD (ACN 004 085 616) AND NO 1 RIVERSIDE QUAY PTY LTD (ACN 006 639 087)
SAD 44 OF 2007
BRANSON J
1 FEBRUARY 2008
ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY

SAD 44 OF 2007

BETWEEN:

INSPECTOR AARON RILSTONE (OFFICE OF WORKPLACE SERVICES)
Applicant

AND:

BP AUSTRALIA PTY LTD (ACN 004 085 616)
First Respondent

NO 1 RIVERSIDE QUAY PTY LTD (ACN 006 639 087)
Second Respondent

JUDGE:

BRANSON J

DATE OF ORDER:

1 FEBRUARY 2008

WHERE MADE:

ADELAIDE

THE COURT ORDERS THAT:
1.The application be dismissed to the extent that it claims relief against the first respondent.
2.Subject to order 1, the matter be stood over to a date to be fixed.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY

SAD 44 OF 2007

BETWEEN:

INSPECTOR AARON RILSTONE (OFFICE OF WORKPLACE SERVICES)
Applicant

AND:

BP AUSTRALIA PTY LTD (ACN 004 085 616)
First Respondent

NO 1 RIVERSIDE QUAY PTY LTD (ACN 006 639 087)
Second Respondent

JUDGE:

BRANSON J

DATE:

1 FEBRUARY 2008

PLACE:

ADELAIDE

REASONS FOR JUDGMENT
INTRODUCTION

The applicant is a workplace inspector appointed under s 167 of the Workplace Relations Act 1996 (Cth) (“the WRA”). By this proceeding he seeks orders that the respondents pay penalties –
(a)under s 407(1)(b) of the WRA for contravention of s 400(5) of the WRA; and
(b)under regs 14.3 and 14.4 of the Workplace Relations Regulations 2006 (“the Regulations”) for contravention of regs 8.11(1)(c) and 8.13(2).
In summary the applicant claims that the respondents applied duress to a minor in connection with an AWA and that certain proposed AWAs did not comply with all of the requirements of Division 12 of Part 8 of Chapter 2 of the Regulations.
For the reasons set out below the application will be dismissed so far as it seeks an order or orders…

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: [2008] FCA 44
Decision Date: 1 February 2008

CaseChat Overview and Summary

In the case of Rilstone v BP Australia Pty Ltd, the plaintiff, Mr. Rilstone, contested BP's handling of workplace agreements and the employment status of employees transferred from Adelaide Petroleum to BP. The court considered whether BP had violated the Workplace Relations Act (WRA) by failing to provide a negotiable agreement or by imposing duress on employees to sign an unfavourable agreement. The dispute centred around the formal requirements for an Australian Workplace Agreement (AWA) and whether BP breached the law by not allowing for a negotiable agreement.

The primary legal issues revolved around whether BP exercised undue influence or duress on employees, particularly Mr. Rilstone, when they were required to sign an AWA. Additionally, the court examined whether BP complied with the formal requirements for AWAs under the WRA. The court had to assess the evidence regarding the negotiations and the terms of the AWAs, as well as the information sessions held by BP and Riverside for employees.

The court found that Mr. Rilstone's case for duress was unconvincing as there was no clear evidence that BP made the AWA non-negotiable or threatened to terminate employment if the agreement was not signed. The court accepted the evidence of Ms. Elm, who stated that the AWA was negotiable, and concluded that Mr. Rilstone's belief about the non-negotiability of the AWA was not a result of Ms. Elm's conduct during the assessment session. The court also found that BP had not contravened the formal requirements for an AWA under the WRA.

Based on these findings, the court dismissed the application for a penalty against BP for contravention of the WRA and ordered the application be dismissed to the extent it claimed relief against BP. The matter was stood over to a future date for further proceedings.

Orders

Orders of the court

1. The application be dismissed to the extent that it claims relief against the first respondent.

2. Subject to order 1, the matter be stood over to a date to be fixed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

BRANSON J

The facts and circumstances referred to in paragraphs 3, 9, 10, 11 and 12 of the Statement of Claim relate to the relationship between BP and Riverside referred to above, to the control exercised by BP over Adelaide Petroleum’s operations as its franchisee, to the information sessions held by BP and Riverside for Adelaide Petroleum employees and to the provision of information to such employees that they were required to attend an information session if they wished to remain employed at the retail sales outlets at which they worked. I note incidentally that it is an agreed fact that Bill did not attend an information session (see [10] above).CONCLUSION RE DURESS The applicant’s case concerning duress was dependent upon its establishing that, at the assessment session held on 9August 2006, Ms Elm made clear to Bill that the AWA was not negotiable and, if it was not signed, there would be no offer of employment. Mr Stanley QC, counsel for the applicant, conceded in his closing submissions that if I were to accept the evidence of Ms Elm on the issue of what she said to Mr Schulze at the assessment session then the allegation of a contravention of s400(5) would not be made out. As indicated above, I do accept Ms Elm’s evidence in this regard. Even if I am wrong to accept Ms Elm’s evidence in this regard, I am not satisfied that what Ms Elm said at the assessment session concerning the AWA made anything “clear” to Bill. Ms Elm’s remarks were not addressed to Bill but to his father. At the time of giving his evidence Bill could not recall anything material said by Ms Elm at the assessment session. Even if I were prepared to attach weight to the hearsay evidence contained in Bill’s record of interview it is equivocal on this important issue. I accept that Bill believed, possibly accurately, that as at 9 August 2006 it was the intention of Riverside only to employ Adelaide Petroleum employees who agreed to sign the AWA. However, I am not satisfied that it was Ms Elm’s conduct at the assessment session held on 9 August 2006 that gave rise to Bill’s belief. The only real significance that the exchange between Mr Schulze and Ms Elm apparently had for Bill was that he believed that its tone boded ill for his chance of maintaining his employment at the Belair BP retail sales outlet. The application for an order that the respondents pay a penalty for contravention of s 400(5) of the WRA will be dismissed.FORMAL REQUIREMENTS FOR AN AWA An AWA is a “workplace agreement” within the meaning of the WRA (s 4). Section 324 of the WRA provides:So far as the context permits:(a)a reference in this Part to a workplace agreement includes a reference to a proposed workplace agreement; and(b)a reference in this Part to an employer, in relation to a workplace agreement, includes a reference to a person who will be an employer in relation to a proposed agreement when it comes into operation; and(c)a reference in this Part to an employee, in relation to a workplace agreement, includes a reference to a person who will be an employee in relation to a proposed agreement when it comes into operation.

Ratio Decidendi

Legal Principle Established

Established by: BRANSON J

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SAD 44 OF 2007

JUDGE:	BRANSON J
DATE OF ORDER:	1 FEBRUARY 2008
WHERE MADE:	ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SAD 44 OF 2007

JUDGE:	BRANSON J
DATE:	1 FEBRUARY 2008
PLACE:	ADELAIDE