Robinson v Pilbara Iron Company (Services) Pty Ltd (No 2)
[2023] FedCFamC2G 593
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Robinson v Pilbara Iron Company (Services) Pty Ltd (No 2) [2023] FedCFamC2G 593
File number: PEG 8 of 2021 Judgment of: JUDGE LUCEV Date of judgment: 12 July 2023 Catchwords: FAIR WORK –– Employer’s fair treatment system policy – whether a benefit – whether an entitlement under employment contract – whether a safety net contractual entitlement
EMPLOYMENT – termination of employment contract – whether employment contract can be resuscitated or terminated twice – whether variation of employment contract or new contract
PRACTICE AND PROCEDURE – application for leave to amend defence – factors for consideration – prejudice – case management – delay – use of judicial and administrative court resources – whether amendments arguable – whether amendments in the interests of justice
WORDS AND PHRASES – “safety net contractual entitlement” – “benefit” – “entitlement”
Legislation: Constitution (Cth) Ch III
Fair Work Act 2009 (Cth) ss 12, 542, 570
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 190
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) rr 7.01, 18.02
Federal Circuit Court Rules 2001 (Cth) r 7.01
Federal Magistrates Court Rules 2001 (Cth) r 7.01
Industrial Relations Act 1979 (WA) s 29
Cases cited: AON Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175; (2009) 83 ALJR 951; (2009) 258 ALR 14
Birrell v Australian National Airlines Commission (1984) 5 FCR 447; (1984) 9 IR 101
Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd [2006] FCA 1352; (2007) 236 ALR 720; (2006) 70 IPR 146
BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266; (1977) 52 ALJR 20; (1977) 45 LGRA 62, (1977) 16 ALR 363
Cai v Tiy Loy & Co Ltd (No 2) [2015] FCCA 2924
COF17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 145; (2021) 365 FLR 1
Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd [2022] HCA 1; (2022) 96 ALJR 89; (2022) 312 IR 1; (2022) 398 ALR 404
Ermogenous v Greek Orthodox Community of South Australia Inc [2002] HCA 8; (2002) 209 CLR 95; (2002) 76 ALJR 465; (2002) 112 IR 56; (2002) 187 ALR 92; (2002) 51 AILR 4-596
Frederick v South Australia [2006] SASC 165; (2006) 94 SASR 545; (2006) 152 IR 182
Gallagher v BHP Billiton Nickel West Pty Ltd [2016] FCCA 3367
Giltrap v Czeschka [2022] FedCFamC2G 715
Hodgson v Amcor Ltd [2012] VSC 94; (2012) 264 FLR 1; (2012) 64 AILR 250-033
Julstar Pty Ltd v Hart Trading Pty Ltd [2014] FCA 108
Matthews v Cool Or Cosy Pty Ltd [2004] WASCA 114; (2004) 136 IR 156
McGough v Minister for Finance [2021] FCCA 290
MCL Pty Ltd v The Agency Group Australia Ltd (No 3) [2021] FCA 1241
Melbourne Stadiums Ltd v Sautner [2015] FCAFC 20; (2015) 229 FCR 221; (2015) 317 ALR 665; (2015) 247 IR 74
New South Wales v Paige [2002] NSWCA 235; (2002) 60 NSWLR 371; [2002] Aust Torts Reports 81-676; (2002) 115 IR 283; (2002) 52 AILR 5-410
Pietrobon v BMD Constructions Pty Ltd [2017] FCCA 1730
Riordan v War Office [1959] 3 All ER 552; [1959] 1 WLR 1046
Riordan v War Office [1961] 1 WLR 210
Robinson v Pilbara Iron Company (Services) Pty Ltd [2022] FedCFamC2G 647
Romero v Farstad Shipping (Indian Pacific) Pty Ltd [2014] FCAFC 177; (2014) 231 FCR 403; (2014) 247 IR 315; (2014) 315 ALR 243; (2014) 143 ALD 239; (2014) 67 AILR 102-324
SZGTE v Minister for Immigration & Multicultural Affairs [2006] HCATrans 639
SZGTE v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 443
SZSRR v Minister for Immigration and Border Protection [2017] FCA 328
Westpac Banking Corporation v Wittenberg [2016] FCAFC 33; (2016) 242 FCR 505; (2016) 256 IR 181; (2016) 330 ALR 476
WorkPac Pty Ltd v Rossato [2020] FCAFC 84; (2020) 278 FCR 179; (2020) 378 ALR 585; (2020) 296 IR 38
Workpac Pty Ltd v Rossato [2021] HCA 23; (2021) 271 CLR 456; (2021) 95 ALJR 681; (2021) 309 IR 89
WorkPac Pty Ltd v Skene [2018] FCAFC 131; (2018) 264 FCR 536; (2018) 280 IR 191; (2018) 362 ALR 311
Yousif v Commonwealth Bank of Australia [2010] FCAFC 8; (2010) 193 IR 212
ZG Operations Australia Pty Ltd v Jamsek [2022] HCA 2; (2022) 96 ALJR 144; (2022) 312 IR 74; (2022) 398 ALR 603
Other material: Black’s Law Dictionary, 11th ed, 2019
Oxford English DictionaryDivision: Division 2 General Federal Law Number of paragraphs: 67 Date of last submission: 16 February 2023 Date of hearing: 16 February 2023 Place: Perth Counsel for the Applicant: Mr D Howlett Solicitor for the Applicant: Dasey Legal Counsel for the Respondent: Mr A Pollock Solicitor for the Respondent: Mills Oakley ORDERS
PEG 8 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DAVID ROBINSON
Applicant
AND: PILBARA IRON COMPANY (SERVICES) PTY LTD (ACN 107 210 248)
Respondent
order made by:
JUDGE LUCEV
DATE OF ORDER:
12 JULY 2023
THE COURT:
1.Orders that in relation to the Court’s orders of 6 January 2023 time be extended as follows:
(a)in order 1(a) to 9 January 2023;
(b)in order 1(b):
(i)to 24 January 2023 for filing an outline of submissions; and
(ii)to 14 February 2023 for filing a list of authorities.
2.Orders that pursuant to r 7.01 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) that leave be granted to the Respondent to amend its Defence in terms of the Amended Defence annexed as Exhibit TK1 to the affidavit of Thomas Robert Klaasen filed 16 February 2023.
3.Declares that cl 3.5 of the Fair Treatment System Policy annexed as Exhibit JD4 to the affidavit of John Noel Dasey affirmed 24 September 2021 constitutes a benefit to the Applicant.
4.Orders that the Preliminary Question be answered as follows:
“No, insofar as any provision thereof confers a benefit upon the Applicant”.
5.Orders that there be no order as to costs.
6.Orders that the matter be adjourned to 2.00pm (AWST) on 14 July 2023 for the making of any further orders.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE LUCEV
INTRODUCTION
This application relates to a claim under the Fair Work Act 2009 (Cth) (“FW Act”) by the applicant, Mr David Robinson (“Mr Robinson”) in relation to his former employer, Pilbara Iron Company (Services) Pty Ltd (“PIC”). The relief sought by Mr Robinson is set out at [82] and [83] of the Statement of Claim (“SOC”) as follows:
82. Declarations that:
a. The Fair Treatment System was a safety net contractual entitlement of the Applicant;
b. The Applicant was not given fair treatment or the benefit of the Fair Treatment System;
c. The Respondent’s failure to comply with the Applicant’s safety net contractual entitlement was a contravention of the Fair Work Act.
83. An order:
a. Reinstating the Applicant to his position of Production Superintendent; or
b. Awarding the Applicant compensation for the loss that he has suffered.
Pursuant to r 18.02 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (“GFL Rules”) on 12 August 2022 this Court ordered that the following question (“Preliminary Question”) be separately determined in these proceedings: see Robinson v Pilbara Iron Company (Services) Pty Ltd [2022] FedCFamC2G 647 (“Robinson (No 1)”):
Is the Respondent’s “Fair Treatment System” policy a “safety net contractual entitlement” for the purposes of s 542(1) of the Fair Work Act 2009 (Cth)?
THE MATERIAL BEFORE THE COURT
The material before the Court includes the following materials:
(a)SOC filed 13 January 2021;
(b)Response filed 16 February 2021 (“Response”);
(c)Defence filed 26 February 2021 (“Defence”);
(d)affidavit of Elizabeth Moran affirmed 19 July 2021;
(e)affidavit of John Noel Dasey affirmed 24 September 2021;
(f)the Statement of Agreed Facts filed 9 January 2023 (“Statement of Agreed Facts”);
(g)PIC’s Outline of Submissions filed 24 January 2023 (“PIC’s Submissions”);
(h)Mr Robinson’s Outline of Submissions filed 13 February 2023 (“Mr Robinson’s Submissions”);
(i)PIC’s Application in a Proceeding filed 15 February 2023 to amend the Defence; and
(j)the affidavit of Thomas Robert Klaasen affirmed and filed on 16 February 2023 (“Klaasen Affidavit”) in support of PIC’s Application in a Proceeding.
The Court has also had the benefit of reading, and having regard to, the transcript of the proceedings on the hearing of the Preliminary Question on 16 February 2023
STATEMENT OF AGREED FACTS
The Statement of Agreed Facts is as follows:
1.[Mr Robinson] was employed by [PIC] in the role of Production Superintendent pursuant to:
a)a letter of offer dated 1 April 2011 (annexed to the affidavit of John Dasey dated 24 September 2020 as “JD1” [the Dasey Affidavit]);
b)a contract of employment executed on 14 April 2011 (annexed to the Dasey Affidavit as “JD2”) (the Employment Contract).
2.During the course of [Mr Robinson’s] shift on 15 October 2020, [PIC] stood down [Mr Robinson] on full pay in order to investigate allegations of misconduct made against [Mr Robinson]. The standing down of [Mr Robinson] was subsequently confirmed by letter dated 16 October 2020 (the Stand Down Letter) (annexed hereto as “AD1”).
3.On 2 November 2020, [PIC] issued [Mr Robinson] with a letter of termination of his Employment (Termination Letter). The Termination Letter stated that the termination of [Mr Robinson’s] employment was “effective 2 November 2020”, and “effective immediately” (annexed to the Dasey Affidavit as “JD3”).
4.On 9 November 2020, [Mr Robinson] initiated a Fair Treatment System review of the decision to terminate his employment under [PIC’s] Fair Treatment System Policy (FTS Policy) (annexed to the Dasey Affidavit as “JD4” by submitting a Fair System Treatment notification form (annexed hereto as “AD 2”).
5.On 1 December 2020, [PIC] issued [Mr Robinson] with a further letter amending the Termination Letter. The further letter was dated 2 November 2020 (annexed to the Dasey Affidavit as JD5).
6.[Mr Robinson] was paid by [PIC] from 15 October 2020 until 2 December 2020. Thereafter, [PIC] paid [Mr Robinson] in lieu of notice of termination.
7.The Agreed Documents are:
a.The annexures to the Affidavit of Elizabeth Moran dated 19 July 2021, which is taken to be filed in support of the Respondent in these proceedings pursuant to the Orders of Judge Lucev dated 8 September 2020 (the Orders);
b.The annexures to the Affidavit of John Dasey dated 24 September 2021 which is taken to be filed in support of [Mr Robinson] in these proceedings pursuant to the Orders;
c.The additional Agreed Document annexed to this Statement of Agreed Facts as “AD1-AD2”.
For the purposes of these Reasons for Judgment the Court has adopted the definitions of “Employment Contract”, “Stand Down Letter”, “Termination Letter”, “FTS Policy” and “Orders” as they appear in the Statement of Agreed Facts.
AGREED DOCUMENTARY EVIDENCE
The agreed documentary evidence is set out or referred to hereunder.
Employment Contract
In a letter of offer dated 1 April 2011 from PIC to Mr Robinson (an offer accepted by Mr Robinson on 14 April 2011) it was said that:
The terms and conditions of your employment are recorded in the attached Schedule of Remuneration, Benefits and Employment Conditions.
This Schedule of Remuneration, Benefits and Employment Conditions is the “Employment Contract” as defined in the Statement of Agreed Facts.
The Employment Contract is organised under several major headings: “Remuneration”, “Leave”, “Employee Benefits”, “Employment Conditions”, “Policies, procedures and standards”, “Information management” and “Termination of Employment”. Each major heading has several sub-headings, and under the major heading “Policies, procedures and standards” the following relevant sub-headings and text appears (emphasis added):
Policies and Procedures In addition to the terms and conditions outlined in this contract, you are required to comply with all reasonable directions by the Company and policies, procedures and standards that apply to your employment. Such policies include (but are not limited to) the Company’s Code of Conduct and The Way We Work.
You must familiarise yourself with Company policies, procedures and standards. The Company retains the discretion to vary the policies, procedures and standards.
Failure to comply with Company policies, procedures and standards could result in disciplinary action, which may include termination of your employment.
The benefits provided to you under our policies are discretionary in nature and do not form part of your contract of employment.
Details of our policies, procedures and standards are available from Human Resources or on the Company intranet.
Fair Treatment The company currently operates a Fair Treatment System which can be accessed if you believe that a decision has been made which unfairly affects you in your role and cannot be resolved through consultation with your leader. When using the Fair Treatment System you are required to follow the process set out in the Fair Treatment System.
Stand Down Letter
The Stand Down Letter is as follows:
Dear Dave,
Stand Down from Role – Pending Investigation
We confirm that you have been stood down on full pay, effective 15 October 2020.
An investigation is being conducted into a physical altercation at Mesa A that is alleged to have occurred on 21 July 2020. We will endeavour to resolve this matter as soon as reasonably practicable.
Whilst you are stood down you are required to take all necessary measures to ensure that you are fit and available to return to work or to attend meetings as and when directed during your normal work time.
You have been provided with the contact number of our Employee Assistance Programme (EAP) provider BSS (1800 30 30 90). We encourage you and your family to use this service if required during this time.
Should you need to contact us whilst you are stood down please call me on [mobile number of Phil Scott], or Skye Mitchell from Human Resources on [mobile number of Skye Mitchell].
Sincerely,
Phil Scott
Manager Mine Operations
Rio Tinto Iron Ore
Termination Letter
The Termination Letter is in the following terms (with a note re attachments deleted):
Dear David
Termination of Employment
This letter confirms the termination of your employment, effective 2 November 2020.
As you are aware, we have been investigating an incident and subsequent investigation whereby two individuals were involved in a physical altercation at Mesa A camp on 21st July 2020. Your actions on the 22nd July 2020 onwards constitute a serious misconduct and a fundamental breach of your employment conditions by failing to meet the expectations of your role as Superintendent and failing in your Duty of Care towards [name deleted].
We have now concluded our investigation and the investigation has found:
[The findings are not relevant for the purpose of answering the Preliminary Question and have therefore been deleted]
Your actions on the 22nd July 2020 onwards constitute a serious misconduct and a fundamental breach of your employment conditions by failing to meet the expectations of your role as a Superintendent and failing in your Duty of Care towards [name deleted]. You have failed to behave in line with Rio Tinto Leadership Competencies, The Way We Work, our values and behaviours.
Specifically, Rio Tinto Leadership Competence of Managing People: Managing People – Prepare thoroughly for performance conversations and confront difficult issues were necessary.
The Way We Work & Rio Tinto’s Value of Safety: Safety – caring for human life and wellbeing above everything else.
Under the Company’s Fair Treatment System you have 7 days to raise a Fair treatment claim against this decision (due by COB Monday 9th November 2020).
Your termination is effective immediately and any outstanding entitlements, including 5 weeks pay in-lieu of notice, will be paid into your nominated bank account. The Company reserves the right to withhold part or all of your entitlements in the event that you have any outstanding debts with the Company.
Please advise a forwarding address for future correspondence relating to your employment with Rio Tinto.
Yours sincerely
Nick Cloughessy
Manager Mobile Equipment Maintenance
Rio Tinto Iron Ore
Fair Treatment Claim
On 9 November 2020 Mr Robinson lodged a fair treatment claim (“FT Claim”) with PIC, in which Mr Robinson:
(a)alleged that the “decision to dismiss me from employment – advised to me … on 2 November 2020” was unfair;
(b)sought “[r]eversal of the finding that I committed serious misconduct and the decision to dismiss me from employment”.
Amended Termination Letter
On 1 December 2020 PIC issued Mr Robinson with an “amended” Termination Letter (“Amended Termination Letter”). The Amended Termination Letter was dated 2 November 2020 (as was the Termination Letter). It differed from the Termination Letter in that it deleted the third last paragraph advising Mr Robinson that he had seven days to raise a FT Claim, and inserted a paragraph in lieu as follows:
You subsequently submitted a Fair Treatment application that was reviewed, with the final decision to uphold the original decision of Termination with that effective date changed to Tuesday, 1 December 2020.
FTS Policy
The FTS Policy is titled “Iron Ore Fair Treatment System Version 1.4” and bears a last updated date of 30 November 2019, and a further heading “RTIO Fair Treatment System”. It is in the following terms:
1. Introduction & Purpose
To ensure the fair treatment of all employees and promote the timely and effective internal resolution of Employee concerns, where they believe that a decision has resulted in them being treated unfairly.
2. Scope and Applicability
This policy applies to all Western Australian based employees of the Company.
In this policy “the Company” means Pilbara Iron (Company) Services Pty Ltd, Hamersley Iron Pty Ltd, Robe River Mining Company and Robe Rover Iron Associates.
3. Policy
3.1 Background
Employees are encouraged to understand the reasoning behind business decision. Occasionally, a decision is made that an employee believes is unfair to them.
Subject to the qualifications in section 3.2, this policy enables employees to address concerns when they believe they have been treated unfairly within their employment. It ensures that those concerns are addressed promptly, fairly and completely.
3.2 Issues to be Resolved Outside Fair Treatment System
The Fair Treatment System will not apply to every decision that is made by the Company.
Matters that fall outside the scope of the Fair Treatment System can still be raised and progressed through leadership channels.
If an employee feels like their issue is not being resolved they should escalate the issue to successive levels up to General Manager to seek resolution.
If the employee feels the issue is not being dealt with (as opposed to the employee not liking the outcome) they should raise the matter with local Human Resources representatives.
If a claim falls outside of the scope of the Fair Treatment System the claim will be discontinued as soon as this becomes apparent (regardless of what stage in the Fair Treatment System it has reached) and it will not formally progress through the Fair Treatment System or to external arbitration.
Matters that will not progress through the Fair Treatment System include:
•Claims made on behalf of another employee or group of employees;
•to challenge decisions made by third parties;
•where an employee has not been treated differently from other employees subject to the same decision but dislikes or disagrees with the decision (for example, housing allocation, remuneration outcomes, performance assessments); or
•to challenge a Company policy which an employee dislikes or disagrees with.
3.3 Determining matters outside of the scope of the Fair Treatment System
Where an employee disagrees with the Company and believes that a concern does fall within the scope of the Fair Treatment System, a General Manager Human resources, or a nominee, has discretion to refer the issue to independent arbitration for clarification.
3.4 Fair Treatment Claims relating to terms of a policy
Where the concern relates to the content of a Company Policy, after discussion with Leaders, the concern can be forwarded directly to the General Manager who has accountability for the policy in question for review. The General Manager should review the issue and provide feedback to the employee in writing.
While the concern will be reviewed under the Fair Treatment Policy, there is no avenue for external arbitration for claims challenging the terms of a Company Policy.
3.5 Fair Treatment Claims relating to termination of employment
If a Fair Treatment Claim is lodged by an employee who has been notified that their employment is terminated, the Fair Treatment Claim is escalated immediately to a General Manager Review.
The Employee has 7 days to request General Manager Review of the decision.
If the General Manager supports the recommendation, the termination date will be the date that the General Manager advises the Employee of his or her decision.
There is no avenue for external arbitration under the Fair Treatment System for Fair Treatment Claims which relate to termination of employment. If there are delays to this process being completed caused by the terminated employee being unavailable to participate in the process, this time will be unpaid.
4. Procedure
4.1 The Fair Treatment System
If a matter cannot be resolved with an employee’s immediate Leader, the employee may initiate the Fair Treatment System as described below.
Once a proper Fair Treatment Claim is lodged both employees and leaders will be required to follow the Fair Treatment System process steps, outlined in the attached Process Flow.
Throughout the Fair Treatment System process, an employee may request the support of a Personal Adviser. A Personal Adviser may be any company employee on their site or within their division (with the exception of Human Resources personnel).
An employee who agrees to act as a Personal Adviser will be given reasonable time to assist in the preparation and presentation of the Fair Treatment Case. Furthermore, the employee and Personal Adviser are provided the opportunity to speak with their relevant HR representative to obtain information or advice on the Fair Treatment process.
4.2 Prior to lodging a Fair Treatment Claim
In order to address issues promptly and effectively an employee should initially raise any concerns they have with their immediate leader.
If the issue falls within the scope of the Fair Treatment System and remains unresolved to the employee’s satisfaction after initial discussions, the employee may elect to progress the matter through the Fair Treatment System.
4.3 Formalising a Fair Treatment Claim
4.3.1 Notification
A Fair Treatment Claim is formalised by completing the Fair Treatment Notification Form. This form notifies the immediate leader that the employee believes that the issue remains unresolved. This form must be submitted to the employee’s immediate Leader within 28 days of the original decision.
The Employee must:
obtain the Notification Form (available from My Rio Tinto, your leader or HR Rep);
•complete the form in full;
•provide a clear and concise summary/description of:
• the decision he or she believes to be unfair;
• the reason as to why it is unfair; and
• what they consider to be a satisfactory resolution.
Any supporting documentation should be attached to the Fair Treatment Notification Form.
Unless there are extenuating circumstances, the 28 day time limit will not be extended. To obtain an extension the General Manager Human Resources or their nominee must approve an extension.
4.3.2 Process Steps 1 to 4: Line Management Review
There are up to four levels of line leadership review which will typically involve:
Step 1 – Supervisor
Step 2- Superintendent
Step 3 – Manager
Step 4 – General Manager
The general process at each step is set out below and in the attached Process Flow.
4.3.3 Review
Within 3 days of receiving the Fair Treatment Notification from the Employee, the immediate Leader should notify the Employee of the receipt of the form and if there is going to be any change to the established timeframes, outlined in section 4.4, for reviewing their Fair Treatment Case.
At each stage the relevant leader must:
•meet with, or if not practicable endeavour to discuss with, the employee as soon as possible;
•deal with concerns seriously, thoroughly, confidentially, and without bias; and
•attempt to resolve the issue with the employee.
Obligations on both parties are to:
•ask questions to get clarity on the concern and the reason for the decision;
•attempt to understand the other’s point of view; and
•make a genuine attempt to resolve the concern at the lowest level.
4.3.4 Decision
After reviewing the Employee’s concern and meeting with them, the leader must deliver their decision in writing as soon as possible and within the established timeframes set out in section 4.4.
The Employee should then consider this decision and inform the Leader whether the decision is accepted and the concern resolved,
If the Employee does not accept the decision, he or she must advise the decision maker within 7 days whether the matter is resolved or not, otherwise the Fair Treatment Claim will be deemed to have been resolved.
4.3.5 If the Fair Treatment Claim is resolved
At Supervisor level, the Fair Treatment Notification Form should be returned to the Employee and no record kept of the Fair Treatment Case.
At Superintendent level or above, the Fair Treatment Notification Form and associated materials should be forwarded to the site HR representative for reporting and filing purposes.
4.3.6 If the Fair Treatment Claim is unresolved
At the Supervisor, Superintendent, or Manager level, the Fair Treatment Notification Form is marked as unresolved and should immediately submit it to the next management level.
A copy of the Fair Treatment Notification Form and any response provided to the Employee must also be forwarded to the relevant HR representative.
If the claim proceeds to a General Manager review and remains unresolved, the site HR representative is requested to refer the matter to independent arbitration.
A copy of the Fair Treatment Notification Form and any response provided to the Employee must also be forwarded to the relevant HR representative.
4.3.7 Independent Arbitration
Human Resources representatives will notify an appointed Arbitrator that a concern has not been resolved at the General Manager level and is submitted for arbitration.
The timeframe for completion of arbitration depends on upon the availability and workload of the Arbitrator.
The arbitration process may involve an initial conciliation conference before the Arbitrator for the purpose of trying to resolve the issue. If the Fair Treatment Case is not resolved at that stage, it may proceed to Arbitration.
The decision of the Arbitrator is final and binding on all parties. In terms of assistance the Employee may:
•choose to continue to be assisted by a Personal Adviser;
•subject to availability at the time, the employee may have the option of being assisted by an independent or external Advocate sourced by the Company to assist employees; or
•be represented by an Advocate of his or her choice.
If represented by either a Personal Adviser or a Company sourced Advocate, the Company will pay the employee’s reasonable expenses to meet with the Advocate for preparation and presentation of the Fair Treatment Case.
In addition, the Company will pay the Advocate’s reasonable costs.
If the employee elects to be represented by an Advocate of their choice the Company will pay the employee’s reasonable travel and accommodation expenses to meet with the advocate.
However, the employee will be responsible for any other costs associated with his or her choice of advocate.
4.4 Timeframes
Time to raise a Fair Treatment Claim
28 Days from decision
Employee
Time to acknowledge receipt of Fair Treatment Claim form
3 Days from receiving the form
Time to make decision after discussion with Employee
14 Days
21 Days
Relevant Leader
General Manager
Time to consider decision at each step
7 Days
Employee
Where the complexity of the matter at hand or other issues will make the established time frames unreasonable, an extension of time may occur. If employees or leaders feel the time frames are not being applied appropriately or being ignored, they should contact their local Human resources representative
5. Accountabilities
5.1 Leaders
Leaders are accountable to ensure:
•they understand the Fair Treatment System;
•their Employees understand the Fair Treatment System and how to use it;
they meet with the employee or if not practicable to meet in a quick time frame to discuss concerns raised;
•issues are dealt with seriously, thoroughly, confidentially and without bias;
•employees and their Personal Advisers are not penalised in any way for using the Fair Treatment System; and
•they respond to concerns within the established Time Frames.
5.2 Employees
Employees are accountable to:
•raise their concern within the 28 days Time Limit;
•review each step decision within 7 days;
•meet with the Leaders at each step of the Fair Treatment process as required;
•attempt to understand their Leader’s viewpoint; and
•try to seek resolution through their immediate Leader in the first instance.
6. Audit and Review
A General Manager Human Resources will review and audit the Fair Treatment System from time to time to ensure it is: meeting its stated intent; is being used in accordance with the guidelines; and the resolutions are consistent with the company policy.
7. Definitions
Day
A calendar day (e.g. 7 days equals 1 week)
Fair Treatment Case
A matter that is progressing through the Fair Treatment System
Personal Adviser
A person who helps the Employee understand the Fair Treatment System, clarifies the issue and assists in presenting a Fair Treatment Case (will generally be a peer, but can be an employee covered by the application of this policy with the exception of an HR representative)
Reasonable Costs
Includes employee and Advocate travel and accommodation associated with meeting to prepare or present the case. The costs of reasonable meals and non – alcoholic drinks are also included. Where an Advocate is sourced independently all costs not associated with travel and accommodation will be at the employee’s expense. In all cases it is expected that costs will be kept to the minimum necessary
THE ISSUES
Procedural Issues
Two procedural issues arose at the outset of the hearing of the Preliminary Question: first, an application to extend time for filing certain documents, and, second, an application to amend the Defence.
Extension of time to file documents
Pursuant to orders made on 6 January 2023:
(a)the parties had until 6 January 2023 to file a statement of agreed facts and documents, but did not file the Statement of Agreed Facts until 9 January 2023; and
(b)PIC had until 23 January 2023 to file and serve an outline of submissions, a list of authorities and any further affidavits, but PIC’s Submissions were not filed until 24 January 2023, and the PIC’s list of authorities was not filed until 14 February 2023.
An extension of time to regularise the late filing was not opposed. There will therefore be an order that in relation to the Court’s orders of 6 January 2023 time be extended as follows:
(a)in order 1(a) to 9 January 2023;
(b)in order 1(b):
(i)to 24 January 2023 for filing an outline of submissions; and
(ii)to 14 February 2023 for filing a list of authorities.
Proposed Amended Defence
The application to amend the Defence was filed on 15 February 2023 (“Application to Amend”), the day before the listed hearing of the Preliminary Question. The Application to Amend was supported by the Klaasen Affidavit. The Application to Amend was opposed by Mr Robinson. The nature of the amendments is explained hereunder.
The SOC (filed 13 January 2021) at [33] and [34(e)], read together, plead that the Termination Letter, which was dated 2 November 2020, confirmed Mr Robinson’s termination of employment “immediately”. The SOC otherwise relevantly pleads:
(a)at [24] that on or about 16 October 2020 Mr Robinson was given the Stand Down Letter informing him that he was being stood down from employment on full pay whilst an investigation into an alleged altercation was carried out;
(b)at [36] that Mr Robinson’s employment was summarily terminated for serious misconduct on 2 November 2020; and
(c)at [39] that Mr Robinson “did not do any work and was not paid for doing any work, for … [PIC], after 2 November 2020”.
In the Defence (filed 26 February 2021) at [25] PIC admit the facts at [33] and [34] of the SOC, including therefore that Mr Robinson was terminated “immediately” on 2 November 2020, but then:
(a)at [25.1] pleads that Mr Robinson was not summarily dismissed;
(b)at [27] pleads that Mr Robinson’s employment was terminated on 1 December 2020, and that he was paid five weeks pay in lieu of notice on 20 December 2020 (the date of the Amended Termination Letter);
(c)at [30] admits [39] of the SOC (that Mr Robinson “did not do any work and was not paid for doing any work, for … [PIC], after 2 November 2020”), but then pleads that:
(i)Mr Robinson remained stood down on full pay; and
(ii)repeats [14] of the Defence, in which PIC admits [24] of the SOC, and further says that Mr Robinson was stood down in accordance with PIC’s:
(A)contractual right to alter Mr Robinson’s duties and hours of work from time to time; and
(B)standard practice in disciplinary investigations.
The Defence was prepared by Mr Klaasen. In the Klaasen Affidavit Mr Klaasen says that he is a certificated legal practitioner, but that his substantive position is as an Employee Relations Specialist with Rio Tinto Service Limited, and it was in that capacity that he prepared the Defence. Mr Klaaasen says that:
(a)when he prepared the Defence he did not appreciate the legal effect of the Termination Letter and its consequences for the Employment Contract and the employment relationship;
(b)he has since preparing the Defence had the benefit of reading the judgments in Melbourne Stadiums Ltd v Sautner [2015] FCAFC 20; (2015) 229 FCR 221; (2015) 317 ALR 665; (2015) 247 IR 74 (“Melbourne Stadiums”) and MCL Pty Ltd v The Agency Group Australia Ltd (No 3) [2021] FCA 1241 (“MCL (No 3)”);
(c)having read the judgments in Melbourne Stadiums and MCL (No 3) it appears that the Defence at:
(i)[25] admitting [33]-[34] of the SOC is correct;
(ii)[27] and [27.1] which deny that Mr Robinson’s employment was terminated on 2 November 2020, and assert that it was terminated on 1 December 2020, are incorrect; and
(iii)[30] which asserts that Mr Robinson remained stood down until 1 December 2020 is incorrect,
and leave is sought to amend the Defence to address these matters (“Proposed Amended Defence”).
The Court has power to amend a document pursuant to r 7.01 of the GFL Rules, which provides that:
(1) At any stage in a proceeding, the Court or a Registrar may allow or direct a party to amend a document (other than an affidavit) in the way and on the conditions the Court or the Registrar thinks fit.
(2) Subject to rule 7.03, the Court or a Registrar may allow an amendment even if the effect would be to include a cause of action arising after the proceeding was started.
Rule 7.01(1) of the GFL Rules (then r 7.01(1) of the Federal Magistrates Court Rules 2001 (Cth) but identically worded) has been described as a discretionary power which is “extensive” and capable of exercise at any stage of proceedings: SZGTE v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 443 at [33]-[34] and [36] per Graham J (from which an application for special leave to appeal was refused by the High Court: SZGTE v Minister for Immigration & Multicultural Affairs [2006] HCATrans 639). In SZSRR v Minister for Immigration and Border Protection [2017] FCA 328 (“SZSRR”) at [47]-[48] per Gleeson J the Federal Court (dealing with r 7.01(1) of the then Federal Circuit Court Rules 2001 (Cth) but still identically worded to r 7.01 of the GFL Rules) stated:
47.At the outset, it is relevant to note that the question of prospects of success is not the only relevant consideration on an application of the kind made to the FCCA judge. The application was analogous to an application for leave to amend a document. Rule 7.01 of the Federal Circuit Court Rules 2001 (Cth) (“Circuit Court Rules”) empowers the FCCA to allow or direct a party to amend a document (other than an affidavit) in the way and on the conditions that the Court thinks fit. Rule 1.06 of the Circuit Court Rules provides that the Court may in the interests of justice dispense with compliance with any of the Rules at any time. Thus, the FCCA has broad powers to permit a party to amend an application for review and even to permit a party to conduct its case without filing an amended document.
48. Generally speaking, the exercise of the FCCA’s powers requires that parties are given a proper opportunity to conduct their case. Leave to amend will be refused if it is obviously futile …. In particular, leave to amend will be refused in respect of a pleading that was liable to be struck out …. However, a just resolution of proceedings does not require that a party be permitted to raise any arguable case at any point in the proceeding ….
[Citations omitted].
In addition to consideration of the prospects of success of any proposed amendment: SZSRR at [47] per Gleeson J, considerations relevant to the exercise of the discretion to allow an amendment pursuant to what is now r 7.01 of the GFL Rules have been held to include:
(a)the nature and importance of the amendment to the applicant, and if it is in the interests of justice to grant leave to amend the application;
(b)whether the party seeking the amendment is acting in good faith and not unnecessarily delaying proceedings, and in particular if an explanation is to be given for any delay in making the amendment: AON Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175; (2009) 83 ALJR 951; (2009) 258 ALR 14 (“AON Risk”) at [102] per Gummow, Hayne, Crennan, Kiefel and Bell JJ;
(c)whether any injustice, with particular focus on the stage in which the proceedings are at, cannot be adequately compensated for; and
(d)case management issues (with particular reference to AON Risk at [30] per French CJ and at [97]-[103] per Gummow, Hayne, Crennan, Kiefel and Bell J).
See also Pietrobon v BMD Constructions Pty Ltd [2017] FCCA 1730; Cai v Tiy Loy & Co Ltd (No 2) [2015] FCCA 2924 at [27] per Judge Manousaridis; Gallagher v BHP Billiton Nickel West Pty Ltd [2016] FCCA 3367 at [23] per Judge Lucev.
Also relevant to a consideration of whether to grant an application to amend a document is s 190 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“FCFCOA Act”) which provides as follows:
(1)The overarching purpose of the civil practice and procedure provisions is to facilitate the just resolution of disputes:
(a) according to law; and
(b) as quickly, inexpensively and efficiently as possible.
(2) Without limiting subsection (1), the overarching purpose includes the following objectives:
(a)the just determination of all proceedings before the Federal Circuit and Family Court of Australia (Division 2);
(b) the efficient use of the judicial and administrative resources available for the purposes of the Court;
(c) the efficient disposal of the Court’s overall caseload;
(d) the disposal of all proceedings in a timely manner;
(e) the resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute.
(3) The civil practice and procedure provisions must be interpreted and applied, and any power conferred or duty imposed by them (including the power to make Rules of Court) must be exercised or carried out, in the way that best promotes the overarching purpose.
(4) The civil practice and procedure provisions are the following, so far as they apply in relation to civil proceedings:
(a) the Rules of Court;
(b) any other provision made by or under this Act or any other Act with respect to the practice and procedure of the Federal Circuit and Family Court of Australia (Division 2).
The Court notes that the Proposed Amended Defence is a response to Mr Robinson’s Submissions, which is based on Mr Robinson’s pleaded case in the SOC, and which forms the basis for Mr Robinson’s Submissions. Thus the substance of the Proposed Amended Defence aligns with, and responds to the SOC, and is addressed by Mr Robinson’s Submissions. In those circumstances there is no element of surprise in the Proposed Amended Defence, and accordingly no prejudice to Mr Robinson arising from its terms.
There are no case management issues which arise from the Proposed Amended Defence: it had no effect on the timing of the hearing of the Preliminary Question, or on the arguments to be put on the Preliminary Question, given that the relevant substance of the Proposed Amended Defence for the purposes of the Preliminary Question is addressed by Mr Robinson’s Submissions, and it would not delay the hearing of the Preliminary Question. For the same reasons there do not appear to be any adverse costs implications for Mr Robinson, that being a particularly relevant consideration where costs are not generally recoverable in this type of proceeding: FW Act, s 570(2). Granting leave to amend the Defence would not result in any inappropriate waste of the Court’s judicial or administrative resources or otherwise delay resolution of the proceedings, and in particular the Preliminary Question: FCFCOA Act, s 190(1) and (2); COF17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 145; (2021) 365 FLR 1 at [14]-[19] per Judge Lucev.
The Court notes that the Proposed Amended Defence would have the effect of putting PIC’s pleaded case on a basis which properly reflects the legal position it wishes to put to the Court, and is thus important in terms of the central role of a federal court under Chapter III of the Constitution, which is to quell the relevant legal dispute or controversy between the parties: Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd [2006] FCA 1352; (2007) 236 ALR 720; (2006) 70 IPR 146 at [47] per Rares J, Julstar Pty Ltd v Hart Trading Pty Ltd [2014] FCA 108 at [82] per Greenwood J; McGough v Minister for Finance [2021] FCCA 290 at [1] per Judge Lucev. Further, PIC’s legal position is one which is inherently arguable, based on the authorities, which are discussed in detail below in relation to the consideration of the Preliminary Question.
In the above circumstances, it is in the interests of justice that the issues in these proceedings, and in particular for present purposes, the Preliminary Question, be argued on the basis of pleadings which properly reflect the respective legal positions of the parties.
For the reasons set out above it is appropriate that there be an order that pursuant to r 7.01 of the GFL Rules that leave be granted to PIC to amend its Defence in terms of the Proposed Amended Defence, that is in terms of the Amended Defence annexed as Exhibit TK1 to the Klaasen Affidavit (“Amended Defence”).
Preliminary Question
The primary issue for consideration in relation to the Preliminary Question is whether the Employment Contract incorporates the terms of the FTS Policy. That issue and others raised in these proceedings are discussed hereunder.
Does the Employment Contract incorporate the terms of the FTS Policy?
It is an express term of the Employment Contract under the major heading “Policies, procedures and standards” and the minor heading “Policies and Procedures” that:
The benefits provided to you under our policies are discretionary in nature and do not form part of your contract of employment.
(“Express Term”)
In Workpac Pty Ltd v Rossato [2021] HCA 23; (2021) 271 CLR 456; (2021) 95 ALJR 681; (2021) 309 IR 89 (“Rossato – HCA”) at [62]-[65] per Kiefel CJ, Keane, Gordon, Edelman, Steward and Gleeson JJ the majority plurality observed that:
62.To insist upon binding contractual promises as reliable indicators of the true character of the employment relationship is to recognise that it is the function of the courts to enforce legal obligations, not to act as an industrial arbiter whose function is to synthesise a new concord out of industrial differences. That it is no part of the judicial function to reshape or recast a contractual relationship in order to reflect a quasi-legislative judgment as to the just settlement of an industrial dispute has been emphatically the case in Australia at the federal level since the Boilermakers Case.
63.To insist that nothing less than binding contractual terms are apt to characterise the legal relationship between employer and employee is also necessary in order to avoid the descent into the obscurantism that would accompany acceptance of an invitation to enforce “something more than an expectation” but less than a contractual obligation. It is no part of the judicial function in relation to the construction of contracts to strain language and legal concepts in order to moderate a perceived unfairness resulting from a disparity in bargaining power between the parties so as to adjust their bargain. It has rightly been said that it is not a legitimate role for a court to force upon the words of the parties’ bargain “a meaning which they cannot fairly bear [to] substitute for the bargain actually made one which the court believes could better have been made”. Even the recognised doctrines of unconscionability or undue influence do not support such a course; and in any event, neither Mr Rossato, nor any of the interveners, sought to suggest that the doctrines of unconscionability or undue influence had any part to play in the resolution of the present dispute.
64.Notwithstanding the express preference of White J for a contractual analysis that establishes the parties’ enforceable rights and duties at the commencement of the employment, his Honour reasoned to his conclusion by reference to notions of “underlying” and “unspoken mutual undertaking[s]”, shared “contemplation[s]”,”indication[s]” and “expectation[s]”. None of these notions amounted to express contractual terms; nor would any have satisfied the test for the implication of a term. The deployment of these notions signals a departure from orthodox legal analysis.
65.Three additional points may be made here. First, while mutual undertakings may not always be express, where there are express terms of the contract between the parties, they must be given effect unless they are contrary to statute. Secondly, if the mutual undertakings are said to be implied in what has been agreed, they cannot be inconsistent with the express terms of the contract. Thirdly, if the mutual undertakings are to be inferred from conduct, then they may take effect as contractual variations. It is because contracts, whether as originally agreed or as varied, create binding obligations that they constitute “firm advance commitments”.
[Footnotes omitted]
No argument was put by Mr Robinson that the Express Term was contrary to statute, and nor is it otherwise apparent to the Court that the Express Term is contrary to any statute.
The plain meaning of the Express Term is that any benefit provided to an employee, such as Mr Robinson, under a PIC policy is not a part of the Employment Contract. If any benefit under a PIC policy, the FTS Policy being a PIC policy, is not a part of the Employment Contract, it cannot be a term of the Employment Contract. In those circumstances it follows that any benefit provided under the FTS Policy is not part of the Employment Contract.
What constitutes a “benefit”?
In Matthews v Cool Or Cosy Pty Ltd [2004] WASCA 114; (2004) 136 IR 156 (“Matthews”) in dealing with the power of the Western Australian Industrial Relations Commission to make a monetary award for a “denied contractual benefit” under s 29 of the Industrial Relations Act 1979 (WA), the Western Australian Industrial Appeal Court said as follows:
(a)at [18] per Steytler J (with whom EM Heenan J agreed at [57]) it was observed that :
The word “benefit” is defined by the Macquarie Dictionary (The Macquarie Library, 3rd ed) as meaning, inter alia, “anything that is for the good of a person or thing” and by the Shorter Oxford English Dictionary as meaning, in its ordinary sense, “Advantage, profit, good”. Moreover, the wide meaning of the word has frequently been recognised by the Full Bench of the Western Australian Industrial Commission: see Welsh v Hills (1982) 62 WA Indus Gaz 2708 at 2710; Waroona Contracting v Usher (1984) 64 WA Indus Gaz 1500 at 1502 (where a contractual obligation to employ an employee for a minimum term was regarded as a “benefit”); Perth Finishing College Pty Ltd v Watts (1989) 32 AILR 107 (where the Full Bench adopted the definition offered by a single Commissioner, Johnson C, in Balfour v Travelstrength Ltd (1980) 60 WA Indus Gaz 1015, which encompassed “an advantage, entitlement, right, superiority, favour, good or perquisite”); and Slee & Stockden Pty Ltd v Blewitt (1992) 47 IR 104 at 114 (a case involving a contractual obligation to give reasonable notice of termination of employment).
(b)at [48] per Pullin J (with whom EM Heenan J agreed at [57]) it was observed that:
The appellant argues that the “benefit” he was not allowed was the contractual right to receive written notice. The word “benefit” is a word of wide meaning: see Balfour v Travelstrength Ltd (1980) 60 WA Indus Gaz 1015. A benefit is in ordinary meaning “anything that is for the good of a person or thing”; “Macquarie Dictionary”. A contractual promise by an employer to give an employee 12 months’ notice before employment is terminated, confers a right on the employee to be given such notice. Such a contractual right is a benefit with real and measurable value. If a contract containing a term requiring notice to be given, is terminated by an employer without cause and without notice, and therefore in breach of such a term, then the employee is entitled to an award of damages: see Automatic Fire Sprinklers Pty Ltd v Watson (1946) 72 CLR 435 at 465.
Having regard to the discussion in Matthews as to what constitutes a “benefit” the Court accepts that Mr Robinson’s request under the FTS Policy for a review of the decision to terminate his employment is a benefit, the benefit being, at least, the ability to request that the decision to terminate the employment be reviewed. There may be other benefits under the FTS Policy applicable to Mr Robinson’s employment, but it not necessary to specifically consider them as what is put in issue by the SOC is the request under the FTS Policy for a review of the decision to terminate his employment and its effect. In any event, as will become obvious the answer to the question of whether a benefit, of whatever kind, under the FTS Policy is an entitlement under a contract and therefore a safety net contractual entitlement is ultimately a generic one and the answer in respect of any one benefit under the FTS Policy applies to all benefits under the FTS Policy.
Safety net contractual entitlement
Section 542 of the FW Act provides that:
For the purposes of this Part, a safety net contractual entitlement of a national system employer or a national system employee, as in force from time to time, also has effect as an entitlement of the employer or employee under this Act.
Section 12 of the FW Act defines “safety net contractual entitlement” as follows:
“safety net contractual entitlement” means an entitlement under a contract between an employee and an employer that relates to any of the subject matters described in:
(a)subsection 61(2) (which deals with the National Employment Standards); or
(b) subsection 139(1) (which deals with modern awards).
For something to be a “safety net contractual entitlement” that thing must be an “entitlement under a contract between an employee and an employer”.
The Oxford English Dictionary (accessed online) defines “entitlement” to mean:
A legal right or just claim to do, receive, or possess something.
Black’s Law Dictionary (11th ed, 2019) (accessed online) defines “entitlement” to mean:
An absolute right to a (usu. monetary) benefit, such as social security, granted immediately upon meeting a legal requirement.
A critical distinction is whether the benefits under the FTS Policy are an entitlement or are discretionary, because if they are the latter then there is no entitlement to them, and they are not, by definition, capable of being a “safety net contractual entitlement”. A number of matters tell against any benefits under the FTS Policy being entitlements and point to them being discretionary benefits, including the following:
(a)first, it is an express term of the Employment Contract that benefits accruing to an employee under the FTS Policy are not part of the Employment Contract, and the Employment Contract, in its terms, therefore expressly disclaims any contractual incorporation of FTS Policy benefits, and thus there is no room to imply a contractual entitlement for employees to those benefits: Rossato – HCA at [65] per Kiefel CJ, Keane, Gordon, Edelman, Steward and Gleeson JJ, citing BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266; (1977) 52 ALJR 20; (1977) 45 LGRA 62, (1977) 16 ALR 363 (“BP Refinery”), CLR at 282-283 per Lord Simon of Glaisdale, Viscount Dilhorne and Lord Keith of Kinkel. In this respect the benefits under the FTS Policy stand on the same footing as the Appointment to Roles Policy considered in Yousif v Commonwealth Bank of Australia [2010] FCAFC 8; (2010) 193 IR 212 (“Yousif”) at [92]-[97] per Kenny, Tracey, and Jagot JJ, where the Appointment to Roles Policy was in a manual which expressly provided that it did not form any part of any employee’s contract of employment: Yousif at [94] per Kenny, Tracey, and Jagot JJ, and which, was held, absent any countervailing factor “not to be incorporated into the contract, and as “manifest[ing] an unambiguous intent that the policies contained in the manual are not to have contractual operation”: Yousif at [95] per Kenny, Tracey, and Jagot JJ;
(b)second, the “Policies and Procedures” minor heading under the major heading “Policies, procedures and standards” refers respectively to the “terms and conditions outlined in this contract” and PIC’s “reasonable directions…and policies, procedures and standards” and the fact that compliance with the policies, procedures and standards is in “[i]n addition” to the terms and conditions outlined in the Employment Contract. This provision in the FTS Policy expressly reinforces the fact that the benefits under the FTS Policy are not terms of the Employment Contract;
(c)third, the “Policies and Procedures” minor heading under the major heading “Policies, procedures and standards” contains a term which expressly reserves to PIC the “discretion to vary the policies, procedures and standards”. This is not a process of agreed variation, but rather its opposite, a unilateral discretion to vary any of the benefits provided by the FTS Policy. As such it is the antithesis of the existence of a contractual promise by PIC to provide the benefits in the FTS Policy for the duration of the Employment Contract, or at all: Westpac Banking Corporation v Wittenberg [2016] FCAFC 33; (2016) 242 FCR 505; (2016) 256 IR 181; (2016) 330 ALR 476 (“Wittenberg”) at [112] per Buchanan J, and [336] per McKerracher J (agreeing in part with Buchanan J);
(d)fourth, the capacity of PIC to unilaterally vary the FTS Policy provisions is reinforced by the fact that under the minor heading “Fair Treatment” under the major heading “Policies, procedures and standards” reference is made to the FTS Policy as being one that “currently operates”, but nowhere within the FTS Policy is there created any express obligation on PIC to maintain the FTS Policy in future, whether in its current form, or in any altered form. Again, a discretion of that nature is the antithesis of a contractual promise by PIC to provide the benefits in the FTS Policy for the duration of the Employment Contract: Wittenberg at [112] per Buchanan J, and [336] per McKerracher J (agreeing in part with Buchanan J).
Separately, the Court considers, first, that implied mutual contractual obligations cannot be inconsistent with an express term (and in this case the Express Term): Rossato – HCA at [65] per Kiefel CJ, Keane, Gordon, Edelman, Steward and Gleeson JJ. In this respect Mr Robinson’s reliance upon matters such as context and the alleged fluid and dynamic environment of a contract of employment (referring to WorkPac Pty Ltd v Rossato [2020] FCAFC 84; (2020) 278 FCR 179; (2020) 378 ALR 585; (2020) 296 IR 38 (“Rossato – FCAFC”) at [46]-[48], [60], [76] -[93] per Bromberg J and [622]-[623] and [632]-[633] per White J and Romero v Farstad Shipping (Indian Pacific) Pty Ltd [2014] FCAFC 177; (2014) 231 FCR 403; (2014) 247 IR 315, (2014) 315 ALR 243, (2014) 143 ALD 239, (2014) 67 AILR 102-324 (“Romero”)) in an endeavour to overcome the Express Term in the Employment Contract is wholly misplaced in light of the High Court’s judgment in Rossato – HCA in the passages set out at [34] above, and in particular at [65] per Kiefel CJ, Keane, Gordon, Edelman, Steward and Gleeson JJ, and other observations made by the plurality including:
(a)at [57] that (citation omitted):
To the extent that Bromberg J expressed support for the notion that the characterisation exercise should have regard to the entirety of the employment relationship, his Honour erred.
(b)at [61] in reference to observations made by White J in Rossato – FCAFC at [446-448] and [512], that:
… it is difficult to be confident about what is meant by “something more than an expectation” if that “something more” is not a binding agreement between the parties by way of a contract or a variation of a contract.
(c)at [66]-[67] that, in relation to an earlier judgment of a Full Court of the Federal Court in WorkPac Pty Ltd v Skene [2018] FCAFC 131; (2018) 264 FCR 536; (2018) 280 IR 191; (2018) 362 ALR 311, to approach the exercise of characterising the legal relationship by reference to the conduct of the parties to the employment relationship and the real substance, practical reality and true nature of the relationship, was to stray from the orthodox path, and it is to the written terms of the employment contract that one must look to determine the character of the legal relationship.
Whilst the latter observations cited above from Rossato – HCA had much to do with the characterisation of the legal relationship, they nevertheless reinforce the emphasis on the primacy of the terms of a written employment contract, and subsequent High Court cases applying Rossato – HCA emphasise that the written terms of contracts are “decisive”: Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd [2022] HCA 1; (2022) 96 ALJR 89; (2022) 312 IR 1; (2022) 398 ALR 404 at [43] (and see also at [59], [66] and [79]) per Kiefel CJ, Keane and Edelman JJ, and that expansive “substance and reality” approaches to the determination of rights in contracts departs from orthodox contractual analysis: ZG Operations Australia Pty Ltd v Jamsek [2022] HCA 2; (2022) 96 ALJR 144; (2022) 312 IR 74; (2022) 398 ALR 603 at [6], [8], [48], [51]-[56] and [62] per Kiefel CJ, Keane and Edelman JJ.
Second, a term creating a mutual contractual obligation to comply with the FTS Policy is neither obvious nor necessary to give business efficacy to the Employment Contract, and thus cannot be implied in fact: BP Refinery, CLR at 282-283 per Lord Simon of Glaisdale, Viscount Dilhorne and Lord Keith of Kinkel. The Employment Contract is capable of operating efficaciously without such a term.
It follows that the benefits in the FTS Policy, and in particular cl 3.5 of the FTS Policy, are not part of the Employment Contract and have no contractual operation as between Mr Robinson and PIC, and are not therefore “an entitlement under a contract” for the purposes of the definition of “safety net contractual entitlement” in s 12 of the FW Act, and are therefore not a “safety net contractual entitlement” for the purposes of s 542 of the FW Act. It follows from these conclusions that there should therefore be a declaration that cl 3.5 of the FTS Policy constitutes a benefit to Mr Robinson, and the Preliminary Question must be answered “No, insofar as any provision thereof confers a benefit upon Mr Robinson”. The conclusion that there is no “entitlement under a contract” renders it unnecessary to deal with the submissions made concerning the subject matter discussed in paragraphs (a) and (b) of the definition of “safety net contractual entitlement” in s 12 of the FW Act.
Other matters
A number of other matters were raised in both the written and oral submissions of both PIC and Mr Robinson, and whilst it is strictly unnecessary to answer them given the conclusion reached at [48] above, the Court feels that it should address a number of those submissions which raise some important issues.
Mr Robinson’s employment status and the consequences flowing therefrom
The facts indicate that:
(a)Mr Robinson’s employment was summarily terminated by PIC on 2 November 2020 by way of the Termination Letter;
(b)Mr Robinson initiated a review under the FTS Policy of his termination of employment on 9 November 2020;
(c)the review under the FTS Policy was conducted, with the final decision upon review under the FTS Policy being to uphold the original decision to terminate, but, according to the Amended Termination Letter with an “effective date changed to Tuesday, 1 December 2020”, and with five weeks pay in lieu of notice.
In Riordan v War Office [1959] 3 All ER 552; [1959] 1 WLR 1046 at 1054 per Diplock J (affirmed on appeal in Riordan v War Office [1961] 1 WLR 210) it was said that:
… the giving of a notice terminating the employment, whether by employee or employer, is the exercise of the right under the contract of employment to bring the contract to an end, either immediately or in the future. It is a unilateral act, requiring no acceptance by the other party, and, like a notice to quit a tenancy, once given it cannot in my view be withdrawn save by mutual consent.
In Birrell v Australian National Airlines Commission (1984) 5 FCR 447; (1984) 9 IR 101 (“Birrell”), FCR at 458 per Gray J the Federal Court observed that (emphasis added):
The purpose of providing in a contract for a period of notice of termination is to enable the party receiving the notice to make other arrangements. An employee given notice by his or her employer has a period of time in which to seek another job; an employer who receives notice has time to arrange for a substitute employee. It would be harsh if arrangements so made during the running of the notice could be disrupted, and parties could be held to their contracts by unilateral withdrawal of the notice at the last minute. Such withdrawal, if possible, could lead to an employee being bound by contracts of employment with two employers, or an employer being bound by contracts of employment with two employees, each being required to give notice to one or the other in order to be extricated from this position, or possibly to suffer the requirement to forfeit or pay wages for a period of time. In my view, I should lean against the adoption of any principle which could lead to such unfortunate consequences, and I should follow the authorities which tend to establish that withdrawal of a notice of termination of a contract of employment can only be effected by consent of both parties.
Birrell reflects the current state of the law in Australia as to withdrawal of a notice of termination of a contract of employment: see New South Wales v Paige [2002] NSWCA 235; (2002) 60 NSWLR 371; [2002] Aust Torts Reports 81-676; (2002) 115 IR 283; (2002) 52 AILR 5-410 at [277] per Spigelman CJ; Frederick v South Australia [2006] SASC 165; (2006) 94 SASR 545; (2006) 152 IR 182 at [73]-[75] per White J; Hodgson v Amcor Ltd [2012] VSC 94; (2012) 264 FLR 1; (2012) 64 AILR 250-033 at [422]-[428] per Vickery J; Giltrap v Czeschka [2022] FedCFamC2G 715 at [32] per Judge Lucev.
It is also the case that, as Colvin J so pithily said in MCL (No 3) at [102] “a contract can be terminated just once”, citing Melbourne Stadiums at [112] per Tracey, Gilmour, Jagot and Beach JJ where the plurality said, equally as pithily, “[a] contract cannot be terminated twice”.
In this case the Employment Contract was terminated on 2 November 2020. According to the Termination Letter the termination was “effective 2 November 2020” and “effective immediately”.
On 9 November 2020, seven days after the termination of his employment, Mr Robinson lodged the FT Claim, and as part of that claim sought “[r]eversal of … the decision to dismiss me from employment”. The FT Claim, and terms of the claim, constitute a clear recognition by Mr Robinson that he had been dismissed from employment with PIC seven days earlier.
Clause 3.5 of the FTS Policy (set out at [15] above) talks about a “General Manager Review” of the decision to terminate employment, and that if the General Manager supports “the recommendation” to terminate, “the termination date will be the date the General Manager advises the Employee of his or her decision”. In this case there was no “recommendation” to terminate, but rather an actual termination as at 2 November 2020, and therefore, technically, no “recommendation” to review. A review is not, in any event, a mutual consent to the withdrawal of a notice of termination of employment. Further, for reasons set out at [50]-[55] above, it was on 2 November 2020 that the Employment Contract terminated with immediate effect. And because the FTS Policy conferred no contractual entitlement in relation to a benefit it conferred, there could be no termination of the Employment Contract on 1 December 2020 as a consequence of anything done by PIC in relation the FT Claim because the Employment Contract had already been terminated. And, further, even if, somehow, and contrary to what the Court has determined above, the termination date of the Employment Contract was 1 December 2020, it does not alter the fact that that could not be a consequence of a contractual entitlement under the FTS Policy, because there was no such contractual entitlement.
It follows from the law as set out above that the withdrawal of a termination of a contract of employment can only be effected by consent of the parties to the contract of employment, here PIC and Mr Robinson. In the above circumstances there was no subsequent consent to a withdrawal of the termination of Mr Robinson’s employment effective 2 November 2020, and once terminated on 2 November 2020 the Employment Contract was not capable of resuscitation.
Variation of Employment Contract or new contract
Mr Robinson also argued that the Employment Contract was either varied or there was a new and separate contract or contractual term that operated with the Employment Contract, and the FTS Policy became a contractual entitlement, by reason of:
(a)the Termination Letter giving Mr Robinson seven days to raise a FT claim;
(b)Mr Robinson submitting the FT Claim on 9 November 2020;
(c)Mr Robinson’s attendance at a meeting with PIC to discuss the FT Claim and his providing written responses to questions asked by PIC at the meeting; and
(d)PIC’s review of the information provided in the FT Claim process, and oral advice on 1 December 2020 from the person nominated by PIC to deal with the FT Claim, that the decision to terminate Mr Robinson’s employment was fair and reasonable.
Having regard to Rossato – HCA, Mr Robinson’s reliance on Rossato – FCAFC and the “dynamic and fluid environment of a contract of employment” as the context in which it is asserted that the variation or new contract occurred is misplaced, for reasons referred to at [45]-[46] above.
The purpose of the Termination Letter was, unequivocally, to immediately terminate the Employment Contract, not to vary it, and to inform Mr Robinson that there was a policy (not a contractual entitlement) under which PIC might review the termination of the Employment Contract. The Termination Letter evinced absolutely no intention on the part of PIC to vary the Employment Contract, or to enter into a new contract of any kind to give effect to the FTS Policy. Without intention to enter into contractual relations there can be no contract, or variation of a contract. In short, the Termination Letter did not constitute an offer of any kind, whether to vary the Employment Contract or enter into a new contract. The information provided to Mr Robinson that there was a policy under which PIC might review the termination of the Employment Contract was simply informing him of, and thereby giving effect to, a policy under which PIC exercised a discretion to review a decision already made. Further, there was no new consideration provided for any variation or new contract. The mere fact that PIC continued to make payments to Mr Robinson whilst the FT Claim review was ongoing and Mr Robinson was not performing any work, does not constitute consideration for a varied or new contract, but rather a discretionary ongoing payment pending completion of the FT Claim review. In the Court’s view no enforceable contract, whether varied or new, was entered into, as viewed objectively, there was as between Mr Robinson and PIC no intention to contract, and nor was there the voluntarily assumption of legally enforceable duties for real consideration: Ermogenous v Greek Orthodox Community of South Australia Inc [2002] HCA 8; (2002) 209 CLR 95; (2002) 76 ALJR 465; (2002) 112 IR 56; (2002) 187 ALR 92; (2002) 51 AILR 4-596 at [24]-[25] per Gaudron, McHugh, Hayne and Callinan JJ; Romero at [34]-[48] per Allsop CJ, Rares and McKerracher JJ.
The Amended Termination Letter is of no assistance to Mr Robinson’s case. In circumstances where:
(a)the Employment Contract was lawfully terminated it could not be terminated twice: Melbourne Stadiums at [112] per Tracey, Gilmour, Jagot and Beach JJ; MLC (No 3) at [102] per Colvin J; and
(b)no enforceable contract, whether a varied Employment Contract or a new contract (of any kind), was entered into,
there was but one termination date for the Employment Contract, namely, 2 November 2020.
A further effect of there being no variation of the Employment Contract, or no new contract (of any kind), as claimed, is that at the time the FT Claim was made (that is 9 November 2020):
(a)Mr Robinson was not an employee of PIC; and
(b)PIC was not the employer of Mr Robinson,
and therefore there was not only no “safety net contractual entitlement” but also not, as at 9 November 2020, one capable of being in force as an entitlement under the FW Act for the purposes of s 542 of the FW Act because Mr Robinson and PIC were not at that date in relation to each other a “national system employee” and “national system employer” respectively. Further, because Mr Robinson was not an employee as at 9 November 2020 there could be no variation of the terminated Employment Contract as a consequence of the making of the FT Claim.
Compliance with policies
Mr Robinson also contended that the fact that he was required to comply with PIC policies and procedures gave contractual status to the FTS Policy, but as the Court has already observed at [44(c) and(d)] above:
(a)the articulated obligations on employees which PIC may enforce, are not enforceable under the policies, including the FTS Policy, themselves, but by force of each employee’s implied duty to comply with PIC’s lawful and reasonable directions: Wittenberg at [77]-[79] per Buchanan J, and nothing about that scheme warrants this Court implying a contractual obligation upon PIC to comply with the FTS Policy; and
(b)PIC has a unilateral discretion to vary any of the benefits provided by the FTS Policy, and the benefits are therefore wholly discretionary at the behest of PIC, which is the antithesis of the existence of a contractual promise by PIC to provide the benefits in the FTS Policy for the duration of the Employment Contract, or at all: Wittenberg at [112] per Buchanan J, and [336] per McKerracher J (agreeing in part with Buchanan J).
CONCLUSION
For the reasons set out above there will be:
(a)an order that in relation to the Court’s orders of 6 January 2023 time be extended as follows:
(i)in order 1(a) to 9 January 2023;
(ii)in order 1(b):
(A)to 24 January 2023 for filing an outline of submissions; and
(B)to 14 February 2023 for filing a list of authorities;
(b)an order that pursuant to r 7.01 of the GFL Rules that leave be granted to PIC to amend its Defence in terms of the Proposed Amended Defence, that is in terms of the Amended Defence annexed as Exhibit TK1 to the Klaasen Affidavit (“Amended Defence”);
(c)a declaration that cl 3.5 of the FTS Policy constitutes a benefit to Mr Robinson; and
(d)an order that the Preliminary Question be answered as follows: “No, insofar as any provision thereof confers a benefit upon Mr Robinson”.
Further, there will be an order that there be no order as to costs: FW Act, s 570(2).
The Court will provide the parties with a brief opportunity to read these Reasons for Judgment before determining whether an order for dismissal of the originating application, or some other orders, ought to be made. For that purpose there will be a further order that the matter be adjourned to 2.00pm on 14 July 2023.
I certify that the preceding sixty-seven (67) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Lucev. Associate:
Dated: 12 July 2023
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