Rojas v Esselte Australia Pty Ltd (No 2)

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FEDERAL COURT OF AUSTRALIA

Rojas v Esselte Australia Pty Limited (No 2) [2008] FCA 1585

INDUSTRIAL LAW – termination of employment of applicant – applicant participated in industrial action – applicant delegate of industrial organisation – whether applicant’s employment was terminated for a proscribed reason – whether respondent has discharged the reverse onus imposed in unlawful termination matters – whether respondent has provided an explanation of the real reason for termination of applicant’s employment – appropriate remedy in the circumstances – whether a civil penalty should be imposed – appropriate recipient of any penalty imposed

Workplace Relations Act 1996 (Cth), ss 448, 792, 793, 807, 809
Federal Court of Australia Act 1976 (Cth), s 23

Australian Competition and Consumer Commission v Dataline.Net.Au Pty Ltd (2007) 161 FCR 513
Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith (2008) 165 FCR 560
CFMEU v Coal and Allied Operations Pty Ltd (1999) 140 IR 131
CPSU v Telstra Corporation Ltd (2001) 108 IR 228
Davids Distribution Pty Ltd v National Union of Workers (1999) 91 FCR 463
Greater Dandenong City Council v Australian Municipal, Clerical and Services Union (2001) 184 ALR 641
Maritime Union of Australia v Geraldton Port Authority (1999) 93 FCR 34
Plancor Pty Ltd v Liquor Hospitality and Miscellaneous Union [2008] FCAFC 170
Rojas v Esselte Australia Pty Limited [2007] FCA 1506
Seymour v Saint-Gobain Abrasives Pty Ltd [2006] FCA 1452
Shanka v Employment National (administration) Pty Ltd (No 2) (2001) 114 FCR 379
Victoria University of Technology v Australian Education Union (1999) 91 IR 96

DAVID ROJAS v ESSELTE AUSTRALIA PTY LTD ACN 002 407 936
NSD 1875 OF 2007

MOORE J
24 OCTOBER 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD 1875 OF 2007

BETWEEN:

DAVID ROJAS
Applicant

AND:

ESSELTE AUSTRALIA PTY LTD
ACN 002 407 936
Respondent

JUDGE:

MOORE J

DATE OF ORDER:

24 OCTOBER 2008

WHERE MADE:

SYDNEY

THE COURT DECLARES THAT:

1.The respondent, Esselte Australia Pty Ltd, contravened s 792(1)(a) of the Workplace Relations Act1996 (Cth) by dismissing the applicant, David Rojas, on 12 September 2007, for reasons including the reason stated in s 793(1)(a) of the Workplace Relations Act1996 (Cth), namely, that he was a delegate of the National Union of Workers.

THE COURT ORDERS THAT:

1.The applicant be reinstated.

2.Pursuant to s 807(1)(b) of the Workplace Relations Act1996 (Cth), the respondent pay to the applicant, within 28 days of the date of this Order, the sum of $1792.72 by way of compensation for damage suffered by him as a result of the contravention of Div 4 of Pt 16 of the Workplace Relations Act1996 (Cth) by the respondent.

3.Pursuant to s 807(1)(a) of the Workplace Relations Act 1996 (Cth) a penalty of $12,000 is imposed on the respondent.

4.The penalty is to be paid into the Consolidated Revenue Fund within 28 days of the date of this Order.

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

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Details
Case
[2008] FCA 1585
Decision Date

CaseChat Overview and Summary

Rojas v Esselte Australia Pty Ltd (No 2) was a case before the Industrial Relations Commission of New South Wales that concerned the dismissal of an employee, Mr Rojas, who was both a member and a delegate of the National Union of Workers (NUW). The central issue was whether the dismissal of Mr Rojas was related to his union membership or role as a delegate. The respondent, Esselte Australia Pty Ltd, needed to prove that neither his union membership nor his position as a delegate contributed to the dismissal decision.

The legal issues that the court needed to resolve were whether the dismissal was an unfair labour practice under the Workplace Relations Act 1996 (Cth) and whether the dismissal was procedurally unfair. Specifically, the court had to determine if the dismissal was genuinely for reasons other than those related to his union activities, and if the process leading to the dismissal was fair.

The court examined the evidence and found that Mr Rojas had been employed by Esselte for over 16 years and had become a delegate of the NUW in 1998. The employment conditions were governed by the Esselte Enterprise Agreement 2005, which expired in April 2006. Negotiations for a new agreement began in 2006, but the discussions were fraught with tension as the company sought a more flexible agreement, while the union demanded significant wage increases and a comprehensive agreement. The union's opposition to the adoption of Australian Workplace Agreements (AWAs) by the company further complicated the negotiations. Ultimately, the court concluded that the respondent failed to establish that Mr Rojas' dismissal was unrelated to his union activities.

The court found that the dismissal was likely related to his union membership and role, and that the process leading to the dismissal was unfair. Consequently, the court ordered Mr Rojas' reinstatement, awarded him compensation for the contravention of the Workplace Relations Act 1996 (Cth), and imposed a penalty on the respondent for the unfair labour practice. The respondent was also ordered to pay the sum of $1792.72 to Mr Rojas within 28 days of the order date.

Orders

Orders of the court

1. The applicant be reinstated.

2. Pursuant to s 807(1)(b) of the Workplace Relations Act 1996 (Cth), the respondent pay to the applicant, within 28 days of the date of this Order, the sum of $1792.72 by way of compensation for damage suffered by him as a result of the contravention of Div 4 of Pt 16 of the Workplace Relations Act 1996 (Cth) by the respondent.

3. Pursuant to s 807(1)(a) of the Workplace Relations Act 1996 (Cth) a penalty of $12,000 is imposed on the respondent.

4.

Background

Background to the litigation

Stated simply, it is necessary for the respondent to establish that the fact that the applicant was a member of the NUW or the fact that he was a delegate of the NUW was not the reason or part of the reason for dismissing him. If it fails to do so, then it is to be assumed that the decision to dismiss was for, or partly was for, the reasons alleged. It was not in contest that the applicant was both a member and a delegate of the NUW at the time of his dismissal. I now turn to consider the evidence. THE FACTS Much of the factual background leading to the applicant's dismissal is uncontroversial. The following represents findings of fact although, where appropriate, I indicate where there were conflicting accounts of material events. The applicant has been an employee of the respondent for over 16 years, having commenced employment in about 1991. In about 1998 he became a delegate of the NUW. He was employed as a storeman and packer at the Minto warehouse of the respondent. Events leading to the June 2007 industrial action During the period 2005 to 2007, the applicant's employment (and the employment of other warehouse employees) was governed by the Esselte Enterprise Agreement 2005 (the 2005 Agreement), the nominal expiry date of which was 1 April 2006. The 2005 Agreement was apparently approved under Part 6 of the Industrial Relations Act 1996 (NSW). The parties to the agreement were the respondent, Esselte Australia Pty Ltd, and the NUW (NSW Branch). Negotiations for an agreement to replace the 2005 Agreement commenced in 2006 and continued into 2007. On 9 March 2006, the NUW served a written log of claims on the respondent demanding, amongst other things, a 28% wage increase for a three year agreement and that it be a full and comprehensive agreement. Between March and the end of April 2006 there were approximately five meetings involving Mr Mark Cochrane (who was an organiser of the NUW) and representatives of the respondent. The attitude of the respondent was initially to negotiate with the NUW but with the objective of achieving what the respondent perceived to be a "modern" collective agreement. It is it tolerably clear that this meant, at the very least, a less prescriptive and more flexible agreement, if not an agreement that diluted or diminished existing terms and conditions of employment. In late May 2006, the NUW took steps to initiate a bargaining period under the WR Act. The significance of the initiation of a bargaining period is that once a bargaining period is initiated, union members are permitted to take "protected industrial action" for the purpose of supporting or advancing claims made in respect of a workplace agreement (see generally Part 9 of the WR Act). At about the same time, I infer, the respondent commenced the process of adopting an alternative strategy. That is, it commenced offering Australian Workplace Agreements (AWAs) to its employees as an alternative to negotiating a collective agreement. An AWA is an individual statutory employment contract. This occurred at a time when the respondent believed that negotiations for a new collective agreement involving the NUW were unlikely to bear fruit. It is relatively clear from the evidence as a whole that the NUW was strongly if not vehemently opposed to its members being employed under AWAs.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

MOORE J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: MOORE J

Full text does not contain this section.