INDUSTRIAL LAW – adverse action – whether employee exercised workplace rights under s 341(1) of the Fair Work Act 2009 (Cth) (“FW Act”) – where employee member and officer of industrial association under s 346 of the FW Act – whether adverse action taken because employee exercised workplace rights and/or was member and officer of industrial association – where decision-makers gave evidence regarding reasons adverse action was taken – whether employer discharged presumption imposed by s 361 of the FW Act – application dismissed
INDUSTRIAL LAW – alleged contravention of enterprise agreement contrary to s 50 of the FW Act – interpretation of enterprise agreements – whether employer denied employee rights under enterprise agreement – application dismissed
Legislation:
Fair Work Act 2009 (Cth) ss 6, 12, 50 – 54, 340, 341, 342, 346, 347, 361, 789FC and 789FD
Pfizer Ireland Pharmaceuticals v Samsung Bioepis AU Pty Ltd [2017] FCAFC…
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
AGLC
Salama v Sydney Trains [2021] FCA 251
Case
[2021] FCA 251
Decision Date
CaseChat Overview and Summary
In Salama v Sydney Trains, the Fair Work Commission was tasked with addressing claims of adverse action and alleged contraventions of an enterprise agreement by Sydney Trains against Mr Salama. Mr Salama contended that Sydney Trains took adverse action against him due to his exercise of workplace rights and his role as a member and officer of an industrial association. Sydney Trains argued that the adverse action was taken for legitimate reasons, including failure to maintain suitable interpersonal skills and adhere to managerial instructions. The central issue was whether Sydney Trains discharged the presumption under section 361 of the Fair Work Act 2009 that the adverse action was not taken for a prohibited reason.
The Commission found that Sydney Trains successfully discharged the presumption that the adverse action was not taken for a prohibited reason. The decision-makers provided evidence that the adverse action was motivated by legitimate concerns regarding Mr Salama's conduct and performance. The Commission also concluded that Sydney Trains did not contravene the enterprise agreement by failing to maintain the status quo during ongoing disputes, as both disputes were effectively resolved before Mr Salama's employment was terminated.
Ultimately, the Fair Work Commission dismissed Mr Salama's application, finding that Sydney Trains had not acted unlawfully in taking the adverse action or in its handling of the enterprise agreement disputes. The decision underscores the importance of clear and sufficient evidence in supporting claims of adverse action and compliance with enterprise agreements.
Orders
Orders of the court
1. The application be dismissed.
2. The parties have liberty to apply within 7 days in the event that any consequential or other orders are sought.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
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
For the reasons developed in more detail below, I find that Mr Salama’s application must be dismissed. 1.1 The issues and summary of conclusions1.1.1The adverse action claims Mr Salama contends that his exercise, or purported exercise, of workplace rights was the, or a, substantial and operative factor for the taking of the adverse action. On this basis he contends that Sydney Trains took the adverse action in breach of s 340 of the FW Act. He further contends that Sydney Trains breached s 346(a) of the FW Act, alleging that the fact of his status as an officer or member of an industrial association, namely the Rail Tram and Bus Union (RTBU), was a substantial and operative factor in the decision to take the adverse action. Sydney Trains disputes this, and contends that the adverse action was taken for the reasons in the show cause letter (summarised in section 4.16 below), which sets out a series of allegations said to demonstrate that he was failing to: ·maintain suitable interpersonal skills and communications to allow for effective, fair and respectful working relationships; ·listen and follow reasonable instructions issued by his managers, without constantly challenging and arguing with decisions conveyed to him; and·constructively receive feedback on work performance and participate in performance review meetings. It relies on the evidence of the decision-makers, Mr Walsh and his superior, Gavin Kable, to support this contention. It should be noted that for it to be determined whether adverse action was taken because workplace rights were exercised in breach of s 340, those workplace rights must be identified with some clarity. The amended statement of claim does not well or clearly plead what Mr Salama contends were his relevant workplace rights. One reason for this is because he purports to rely generally on “the material within the affidavits filed in the Proceedings” including, but not limited to, certain particularised events. However, by the time of the final hearing Sydney Trains had extracted some clarity from Mr Salama as to his position by obtaining further particulars. In addition, an agreed List of Issues, heavily footnoted to the pleadings and particulars, provides guidance as to the scope of the case relied upon. Even so, identifying precisely how Mr Salama put his case has presented a challenge. Mr Salama relies on the following three forms of “workplace right”, as defined by s 341, protected by s 340(1) of the FW Act (the terms in bold are defined later in these reasons):(1)Section 341(1)(a): his role under a workplace instrument. In this connection, Mr Salama contends that he was recognised as a delegate under cl 38 of the Enterprise Agreement – a workplace instrument – and had responsibilities as a delegate including under cl 8 in relation to the Disputes Settlement Procedure (DSP). He submits that he had an entitlement to discharge this role under s 341(1)(a) of the FW Act in relation to the two disputes identified in more detail below as the Robertson 3 November 2016 meeting and the union rights dispute;(2)Section 341(1)(c)(ii): his ability to make complaints or inquiries in relation to his employment. In this regard, Mr Salama contends that in initiating the field start issue, request issue and notification issue he had the benefit of a workplace right within s 341(1)(c)(ii) of the FW Act; and(3)Section 341(1)(b): his ability to initiate or participate in processes or proceedings under a workplace law or workplace instrument. In this regard, Mr Salama contends that when he took actions with respect to various disputes commenced under the DSP under cl 8 of the Enterprise Agreement (being the field start issue, the request issue and the PCIP dispute), the stop bullying proceedings and his participation in a conciliation and conference in the FWC, he had the benefit of a workplace right pursuant to s 341(1)(b) of the FW Act.
Ratio Decidendi
Legal Principle Established
The relevant terms of cls 8 and 38 of the Enterprise Agreement are set out in sections 5.2 and 5.3 above. 7.2 Consideration of the alleged breaches of cl 8 of the Enterprise Agreement Mr Salama contends that Sydney Trains acted in breach of cl 8.4 of the Enterprise Agreement which relevantly provides:STEP 1: ...The status quo before the emergence of the dispute shall continue whilst the dispute settlement procedure is being followed. For this purpose “status quo” means the work procedures and practices in place immediately prior to the change that gave rise to the dispute. He contends that Sydney Trains acted in breach of this clause by failing to maintain the status quo when it proceeded to terminate his employment without first resolving each of the union rights and PCIP disputes. More specifically, Mr Salama contends that Sydney Trains acted in breach of cl 8 of the Enterprise Agreement because, at the point in time when Sydney Trains terminated his employment, there was an ongoing dispute notified and, accordingly, the status quo was not maintained as required by cl 8.4. Sydney Trains submits that both of these disputes were resolved prior to Mr Salama’s termination. It contends that this is a complete answer to the allegation. In my view, this aspect of Mr Salama’s claim must fail for the following reasons. First, cl 8 contemplates potentially four steps being taken in the course of a dispute notified between employer and employee. The “status quo” can only be required to remain static during the currency of the dispute. Secondly, during the course of the union rights dispute, as evidenced by the email correspondence set out above in section 4.9 of the chronology, Ms Francisco attempted to resolve the dispute on 19 May 2017 after it had been escalated to “Step 1” by Mr Salama. It was then escalated to “Step 2” and addressed by Mr New on 26 May 2017. When Mr Salama escalated it to “Step 3”, Mr Walsh addressed the dispute in his email dated 30 June 2017 who concluded his communication with the words “I trust this concludes the matter”. No further communication was received by Sydney Trains in relation to this dispute. At that point, there was no basis upon which Sydney Trains could conclude that the dispute remained on foot and, consequently, that the dispute required the status quo be maintained. Thirdly, a similar state of affairs arises in relation to the PCIP dispute (discussed above in section 4.11). It was notified by Mr Fozzard (acting on behalf of Mr Salama) on 21 June 2017 as a “Step 1” dispute. It was subsequently elevated to “Step 2” and then “Step 3”. However, I am satisfied that by the time of the show cause letter, Sydney Trains accepted that it had not been implemented. As much is clear from the show cause letter itself, which states that Sydney Trains had “sought” to place Mr Salama on a PCIP, but does not otherwise suggest that the PCIP was in place or had been acted upon. Subsequent email correspondence serves to confirm that this was so. To the extent that Mr Walsh may have suggested otherwise in his oral evidence, I consider that he was mistaken. Consequently, I consider this dispute to have been resolved by at least the time of the show cause letter.