Smith v Granada Tavern and Ors (No.2)

[2007] FMCA 904

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SMITH v GRANADA TAVERN & ORS (No.2) [2007] FMCA 904

INDUSTRIAL LAW – Alleged application of duress on casual employee in connection with employee’s desire to enter into an Australian Workplace Agreement – nature of duress – duress established in respect of all three respondents.

Workplace Relations Act 1996 (Cth), ss.400(1), 400(5), 405 (1), 407(1), 826

Canturi and Another v Sita Bus Coaches Pty Ltd and Another [2002] 116 FCR 276
Jones v Dunkel (1959) 101 CLR 298
Australian Securities and Investment Commission v Adler and Others [2002] 168 FLR 253
Dilosa v Latec Finance Pty Ltd (No 1) (1996) 84 WN (NSW) (Pt 1) 557
SS. Pharmaceutical Co. Ltd & Another v Qantas Airways Ltd (1991) Vol.1 288
Insurance Commissioner v Joyce [1948] 77 CLR 39
Shanka v Employment National (Administration) Pty Ltd (1999) 166 ALR 663
Shanka v Employment National (Administration) Pty Ltd (2000) 170 ALR 42
Balding v Ten Talents Pty Ltd & Anor [2007] FMCA 145
Finance Sector Union v Commonwealth Bank of Australia [2000] FCA 1468
Crescendo Management Pty Ltd v Westpac Banking Corporation (1988) 19 NSWLR 40
Briginshaw v Briginshaw and Another (1938) 60 CLR 336
Fox v Percy (2003) 214 CLR 118

Applicant: INSPECTOR RAYMOND MURRAY SMITH

First Respondent: ACN 090 444 518 PTY LTD
T/AS GRANADA TAVERN

Second Respondent: MICHAEL DAVID HIBBERD

Third Respondent: JOCELYN MAREE BERECHREE

File number: LNG 39 of 2006

Judgment of: Burchardt FM

Hearing dates: 8 December 2006, 6 February 2007,
2, 3, 4 April 2007 & 3 May 2007. 

Date of last submission: 3 May 2007

Delivered at: Melbourne

Delivered on: 19 June 2007 (via video-link to Hobart)

REPRESENTATION

Counsel for the Applicant: Mr J. Bourke & Mr M. Felman

Solicitors for the Applicant: Clayton Utz Lawyers

Counsel for the First & Second Respondents: Mr N.J. Clelland SC, with Mr G.H. Livermore

Solicitors for the First & Second Respondents: Simmons Wolfhagen

Counsel for the Third Respondent: Ms K. Baumeler 

Solicitors for the Third Respondent: Butler, McIntyre & Butler

ORDERS

1. The Court declares that each of the Respondents has contravened s.400(5) of the Workplace Relations Act 1966 (Cth) for the reasons set out in the Court’s reasons for judgment. 

2. The matter is listed for further hearing on 2 July 2007 at 10.15 am. 

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

LNG 39 of 2006

INSPECTOR RAYMOND MURRAY SMITH

Applicant

And

ACN 090 44 518 PTY LTD T/AS GRANADA TAVERN

First Respondent

MICHAEL DAVID HIBBERD

Second Respondent

JOCELYN MAREE BERECHREE

Third Respondent

REASONS FOR JUDGMENT

Introductory

1. On 17 October 2006 the Applicant filed an application and an affidavit in support in this proceeding.  Those documents are the prescribed documents to commence a proceeding in this Court. 

2. Paragraph 1 of the application specified that it was made under s.405(1)(f) of the Workplace Relations Act 1996 (Cth) ("the Act") and related to alleged contraventions of s.400(5) of the Act.

3. Paragraph 2 of the application sought that, in accordance with s.407(1) of the Act, penalties be imposed on each of the Respondents.

4. Paragraph 3 of the application stated that:

   “The basis for the application is set out in the accompanying affidavit of Inspector Raymond Murray Smith.”

5. The affidavit of the Applicant set out various formal matters as to his appointment and an alleged investigation conducted by the Applicant into the affairs of the First Respondent and asserted at paragraph 3 that:

   “Another entity, trading as the Club Hotel whose proprietors include a person who is also a director of the First Respondent, is also under investigation by the Office of Workplace Services for alleged underpayment of wages to its employees.”

   The significance of that extract will become apparent in due course. 

6. The Applicant's affidavit went on to state, albeit largely on a hearsay basis, the factual elements asserted to give rise to the contraventions alleged against the three Respondents. 

7. On 31 October 2006 the Third Respondent filed a response and an affidavit.  The response sought that the application be dismissed as against the Third Respondent and that she receive her costs, and further asserted that “the basis for the Orders sought is set out in the accompanying affidavit of Jocelyn Maree Berechree”. 

8. It is sufficient for present purposes to say that that affidavit traversed the materials set out in the Applicant's affidavit.  

9. On the same day, 31 October 2006, the First and Second Respondents filed a response, in very similar terms to that of the Third Respondent, also seeking dismissal of the application and costs and asserting that “the basis for the Orders sought was in the accompanying affidavit of Michael David Hibberd”. 

10. Mr Hibberd's affidavit filed the same day ran to some 54 paragraphs and constitutes a detailed factual response to the Applicant's affidavit. 

11. Following the issue of subpoenas by the Applicant, and other subpoenas issued by Inspector Sally Dennington in a related matter, LNG 42 of 2006, on 8 December 2006 I adjourned the matter for argument on 6 February 2007. 

12. Formal application to set aside the subpoenas earlier issued in both matters was filed on 21 December 2006 by the First and Second Respondents and in due course, following the receipt of both oral and written submissions from all the parties, I handed down an interlocutory decision on 9 March 2007 in which, putting the matter broadly, I dismissed the objections to the subpoenas, save as to their scope. 

13. That decision was not the subject of challenge by way of appeal and, accordingly, the matter proceeded to trial on 2 April 2007. 

14. Before trial commenced, copious further affidavit material was filed by the Applicant. 

15. A number of interlocutory matters were raised on a preliminary basis, including a subpoena filed by the First and Second Respondents on 30 March 2007, which was in substance a dispute about discovery. 

16. Having heard argument, I indicated that I would set aside that subpoena and I gave my reasons before the commencement of proceedings on 3 April 2007.  On that occasion I also ruled on an application by the First and Second Respondents that an affidavit made by Ms Wills be produced.  For the reasons I indicated at the time, I rejected that application. 

Formal issues and the issue of duress

1. The Applicant in written submissions submitted that the First Respondent was a person for purposes of s.400(5) of the Act and that Ms Wills as a casual employee was likewise an employee for the purposes of that subsection.

2. Neither of those submissions were challenged and I accept them. 

3. Likewise, although the Applicant tendered as exhibits formal proof of the Applicant’s appointment as an inspector, proof of the incorporation of the First Respondent, an ASIC company extract showing that the Second Respondent is a director of the First Respondent and a copy of a relevant award, no issue was taken with any of those matters. 

4. The real issue before the Court was the question as to whether or not duress was established. 

5. It is perhaps helpful to commence consideration of the question as to what constitutes duress with the observations of Ryan J in Canturi and Another v Sita Bus Coaches Pty Ltd and Another [2002] 116 FCR 276 (“Canturi”) at [40]-[41] where his Honour said:

   “[40] The Full Court in Schanka similarly emphasised that inherent in the notion of duress is the application of illegitimate pressure.  It observed at [23];

   “In our view, the answers given by his Honour to the questions which he identified involved his discerning from s.170WG in the context of Pt VID as a whole, an intention that an employer should not, in an endeavour to induce an existing or prospective employee to enter an AWA containing particular terms, apply pressure which, in the circumstances, is illegitimate. 

   That intention is consistent with what appears to be the policy underlying Pt VID that AWAs should be negotiated and concluded openly and freely at arm’s length without outside interference and without either party being deceived or misled.  The legislature’s concentration on the quality of the conduct and intention of the person against whom duress is alleged is also borne out by the fact that the proscription in s.170WG(1) is cast in the form “a person must not apply duress”.  It is significant in the same context that the prohibition is against the application of duress “in connection with an AWA”.  Had it been intended to confine the penalty contemplated by s.170VV to the application of duress which results in the entry by an employer or employee into an AWA, that could have been made clear by different language in s.170WG(1)”.  [Original emphasis].”

   [41] Maritime Union of Australia v Burnie Port Corporation (supra) was a case where the employer had insisted on entry into an AWA as a condition of engagement of a new employee.  I there adverted to the policy which may be thought to underpin the Act continued, at [66];

   “There is discernable in many provisions of the Workplace Relations Act, including s.170WG, a policy that wages and working conditions are to be determined by a process of bargaining at arm’s length using weapons, including protected industrial action, which the legislation impliedly regards as fair, but without resort to proscribed tactics or techniques which are to be characterised as unfair.””.

6. His Honour went on to say at [43] that:

   “In my view, the consensus of the authorities to which I have referred is that duress, in the relevant sense, involves the illegitimate application of pressure to induce a party to enter into an AWA, or to discourage a party from taking that course.  What is illegitimate is a question of fact to be decided in the circumstances of each case…”

7. Ryan J’s observations about the non-necessity of the conclusion of an AWA were largely based on the Shanka litigation.  In Shanka v Employment National (Administration) Pty Ltd (1999) 166 ALR 663 (“Shanka”) at [36], Moore J observed:

   “… it does not mean, in my opinion, that the use of the word "duress" or the expression "applied duress" in a legislative provision proscribing conduct necessarily implies a requirement that there not only be conduct of a particular character but that the conduct has a particular result.  The word "duress" is apt to describe the conduct of one party which bears upon another party.”

8. His Honour went on in that case to observe at [39] that:

   “It is consistent with this scheme, in my opinion, to give

   
   

   s 170WG(1) a broad and not narrow meaning; that is, to view it as proscribing conduct occurring during the process of negotiation which could be prevented or restrained by injunction or in respect of which a penalty could be sought.”

9. On appeal arising out of his Honour's decision in Shanka v Employment National (Administration) Pty Ltd (2000) 170 ALR 42,

   
   

   the Full Court of the Federal Court upheld his Honour's approach. While the Court was in both those cases concerned with predecessor legislation, the terms of s.170WG are not relevantly distinguishable from s.400(5).

10. The Full Court at [15] observed:

    “We are not persuaded that "duress" in s 170WG(1) is used in a context dealing with the same branch of the law as cases in which courts have been concerned to apply it to relieve a victim from the consequences of a contract or a payment procured by duress.  Accordingly, we do not regard the expression as "a free‑standing legal term" as that phrase is used in the passage just quoted.”

11. Having upheld Moore J's finding that it was not necessary for the AWA (or relevant contract) to be entered into for duress to be found to exist in the context of s.170WG, the Court went on to refer to the Oxford English Dictionary definition in these terms, at [16]:

    “Constraint compulsion; spec in Law, Constraint illegally exercised to force a person to perform some act.”

12. That debate took place in the context of submissions made by the Respondent in that litigation to the effect that duress could only be held to apply where an AWA had indeed been compelled by the duress complained of, a submission that both Moore J and the Full Federal Court rejected. 

13. Duress has been helpfully described in a recent decision of Lucev FM in Balding v Ten Talents Pty Ltd & Anor [2007] FMCA 145 at [33]-[35] where Lucev FM said:

    “[33] Duress involves the illegitimate application of pressure likely and intended to have the effect of denying the exercise of a person's free will, and in relation to the circumstances of this case, irrespective of whether an AWA is entered into or otherwise:  Shanka v Employment National (Administration) Pty Ltd (1999) 166 ALR 663 at 680-681 per Moore J ("Shanka 1999"); [1999] FCA 1334 at paras 40-43; Maritime Union of Australia v Geraldton Port Authority (1999) 165 ALR 67 at 125 per Nicholson J; ("Geraldton Port Authority") [1999] FCA 899 at para 367 per Nicholson J; Canturi v Sita Coaches Pty Ltd (2002) 116 FCR 276 at 287-289 per Ryan J; [2002] FCA 349 at paras 38‑43 per Ryan J ("Canturi"); Bishop v Ropolo Services Pty Ltd (2006) 153 FCR 357 at 361-362 per Madgwick J; [2006] FCA 592 at paras 17-21 per Madgwick J ("Bishop").

    [34] Illegitimate pressure may include unlawful threats, unconscionable pressure, and, in relevant circumstances, lawful conduct:  Geraldton Port Authority, ALR at 125 per Nicholson J; FCA at 367 per Nicholson J.

    [35] Illegitimate pressure does not exist merely because an offer of employment is contingent upon entry into an Australian Workplace Agreement ("AWA"): WR Act, s.400(6); Bishop, FCR at 362 per Madgwick J; FCA at para 22 per Madgwick J.  Whether there is illegitimate pressure is a question of fact determinable in the circumstances of each particular case: Canturi, FCR at 289 per Ryan J; FCA at para 43 per Ryan J. Pressure is not enough: for pressure to amount to duress it must, during the process of offer and negotiation leading to acceptance or non acceptance of an AWA, cross the boundary from normal pressure exerted by a party in the process of offer and negotiation and enter the territory of illegitimate pressure.”

14. In Finance Sector Union v Commonwealth Bank of Australia [2000] FCA 1468 Gyles J noted, at [22] that the Full Court in Shanka also cited with apparent approval the following passage from the judgment of McHugh JA in Crescendo Management Pty Ltd v Westpac Banking Corporation (1988) 19 NSWLR 40 at [46]:

    “Pressure will be illegitimate if it consists of unlawful threats or amounts to unconscionable conduct.  But the categories are not closed.  Even overwhelming pressure, not amounting to unconscionable or unlawful conduct, however, will not necessarily constitute economic duress.” [My emphasis]. 

15. Given the finding of the Full Court in Shanka (referred to at paragraph 26 above that duress in the context of the Act is not to be regarded as a freestanding legal term in the manner that the Full Court described, but rather as I would understand it to be approached in a specific context of this legislation, the other authorities to which I was referred, including particularly the English authorities, are in my respectful view of less assistance although I have of course borne them well in mind. In particular, I have had regard to the observations not only in the English authorities but in Australian authorities about the caution to be applied in dealing with allegations of economic duress.

16. I accept, as both parties submitted, that the principles applicable in Briginshaw v Briginshaw and Another (1938) 60 CLR 336 (“Briginshaw”) should be applied to allegations such as duress.  I note that, not surprisingly, the Respondents sought to place the definition of duress, as it were, at the highest level.  It was submitted (First and Second Respondents’ outline of closing submission) that "clear, cogent, strong and strict proof is required" (paragraph 1). 

17. The authority cited in support of that proposition as a footnote was the observation of Ryan J in Canturi at [44]. What Ryan J actually said at paragraph [44] was:

    “I accept that the onus of proving duress remains on the applicants and it is one which, having regard to the seriousness of the alleged contravention, has to be proved to the reasonable satisfaction of the Court in accordance with Briginshaw v Briginshaw (1938) 60 CLR 336.”

18. In my view it is preferable to approach an issue such as a finding of duress in accordance with what are well established principles. To seek to elevate duress to any particular level of significance is only likely to cloud the issues. While I bear well in mind the observations of the Courts as to the hesitations that should be borne in mind in considering issues both of duress generally and even more so of economic duress, it seems to me that in the ultimate the Court is faced in this instance with an alleged breach of the terms of a subsection of the Act, which is required to be proved to the satisfaction of the Court in accordance with Briginshaw principles. 

The affidavit evidence

1. Affidavits were filed by the Applicant from Emily Rose Wills, Michael Patrick Taylor, Gina Alison Gillard, Danielle Margaret Ralph, Natasha Ann Mansfield, Bianca Jane Herlihy and Tamika Kaye Debnam. 

2. I ruled that affidavits prepared on behalf of Angela Jane Byard and Karen Anne Crawford were inadmissible for reasons given in judgment during the proceeding.  In short, that material was excluded, as were some other aspects of the evidence, because they did not relate to the treatment of Ms Wills.  I formed the view, for the reasons I expressed, that this proceeding was limited to an examination of the Respondents' alleged conduct as against Ms Wills and not any broader issues involving either the Club Hotel, to which I have earlier referred, and/or Ms Byard and Ms Crawford. 

3. Because of the way the trial progressed it is necessary to set out in some detail what the affidavit material was. 

4. The evidence in the affidavit of Ms Wills can be summarised as follows: she commenced work at the Granada Tavern on 14 February 2005, at which time she was 19 years of age; she started studying a course of business management at the University of Tasmania on a full‑time basis in 2004, and is still engaged in those studies; she works predominantly as a waitress in the restaurant of the Granada Tavern but occasionally in the kitchen. 

5. Ms Wills deposed that when she started working at the Granada Tavern there was a two‑shift operation in the restaurant area, the lunchtime shift and the dinner shift.  The latter usually started at either 5.00 pm or 6.00 pm and would go to 8.00 pm or 9.00 pm. 

6. The roster for a single week was on a sheet of paper displayed on a wall between the kitchen and the bar and was usually one or two weeks in advance. 

7. Until the end of August 2006 Ms Wills deposed that she worked generally about three or four dinner shifts during the week, and also on the weekends when she was regularly rostered to work both days.  She deposed that she was almost always rostered to work on the Sunday lunch shift. 

8. Ms Wills deposed that she had spoken often with Mr Taylor about the number of shifts per week that she wanted to work and that she would call telling him that she needed to work four or five shifts per week or approximately 14 hours in order to meet her financial commitments.  She deposed that she considered she had an unwritten agreement about the number of hours per week that she would be rostered to work. 

9. Ms Wills deposed that she had told Mr Taylor on a number of occasions that she had classes during the day and, where possible, he accommodated this in setting the rosters.  She was not paid any extra money for working weekends or in the evenings. 

10. Ms Wills further deposed that at the time she started work she was given an employment package which included an Australian Workplace Agreement ("AWA").  She deposed that she never signed that AWA and never looked at it properly.  She deposed that at that time she had very little knowledge about AWAs or awards and presumed that her pay rates were correct. 

1. Ms Wills deposed that in early August 2006 she saw a notice on the noticeboard near the rosters that said there was going to be a meeting on 7 August 2006.  The notice, according to her, included words to the effect, "Why AWAs?" 

2. Ms Wills deposed that she rang Workplace Standards Tasmania just before the meeting because she had heard about that body as part of her studies and wanted to know what the relevant pay rates were applicable to her job.  She was told that the Hospitality Industry - Accommodation Hotels, Resorts and Gaming Award 1998 (“the award”) was the relevant award and that she should be paid under that award, which contained penalty payments for weekend work. 

3. Ms Wills deposed that at that time she then formed the view that she should have been employed under the award for the whole time that she had been employed at the Granada Tavern. 

4. Ms Wills deposed that she had attended the meeting on 7 August 2006 along with about 30 or 40 other staff.  It would appear that Mr Hibberd did all the relevant talking about the AWA, and that Ms Berechree, the Third Respondent, discussed only the armed hold-up policy of the First Respondent and certain other matters not relevant to this proceeding. 

5. The account given by Ms Wills in her affidavit relevantly contained assertions to the following effect:

   ·Mr Hibberd spoke about the need for employees to re-sign their AWAs. 

   ·Mr Hibberd said there were issues with compliance in relation to the existing AWAs, a phrase repeated on numerous occasions during the meeting. 

   ·Mr Hibberd said words to the effect that upon selling another hotel, the Foreshore Tavern, he had become aware that the AWAs previously signed by employees of the First Respondent were "no longer valid". 

   ·Mr Hibberd spoke about another person taking him to Court and that they would get their "comeuppance". 

   ·Mr Hibberd told the employees that they needed to re-sign the AWAs so they could still buy their drinks and meals at a discounted price. 

   ·Mr Hibberd said that he had talked to a representative group of employees about public holidays and that as a result of those discussions, the AWA would include higher rates of pay for employees who worked on public holidays. 

   ·In response to a question, Mr Hibberd said words to the effect that he was not aware of what employees would be paid under the award. 

6. Ms Wills deposed that she told the meeting that the pay rate under the award was $17.00 for weekdays and $21.00 for weekends, this being something that she had been told by Workplace Standards Tasmania. 

7. In response to this assertion, according to Ms Wills, Mr Hibberd said words to the effect:

   “The award is irrelevant because in November the Fair Pay Commission would sit and we would not longer have an award.”

8. Mr Hibberd mentioned a pay rate of $13.00 as an indication of what the pay rates would be after the Fair Pay Commission had sat. 

9. During the currency of this meeting, all of the relevant staff were given an envelope.  One of the documents in the bundle of documents in the envelope given to Ms Wills was an AWA, which Ms Wills understood was to be signed and returned to her employer.  There was nothing in the document that suggested it was other than a final version. 

10. Ms Wills noted that the document had no pay rate in it, and according to her affidavit, when other employees raised the question of pay rates, Mr Hibberd answered with words to the effect, "When you are ready to sign, come to me and I'll write it in." 

11. The bundle of documents also contained a deed of release which was exhibited as exhibit ERW2 by Ms Wills.  That document is in draft form and plainly contemplates some sort of potential settlement made by the First Respondent with employees in respect of what one might infer would be underpayments arising out of non-compliance with the award. 

12. Ms Wills deposed that Mr Hibberd said that the AWAs were to be returned by 11 August 2006.  Another worker asked who the forms should be handed to and where, and Ms Wills deposed that as neither Mr Hibberd or Ms Berechree had an organised response to the question, she laughed to herself and to a colleague.  It appeared to

    
    

    Ms Wills that Ms Berechree was affronted by this response. 

13. On the same day, after the meeting, Ms Wills approached Mr Hibberd on the podium to ask if he would look at some human resource work that she had done for her university studies which related to the Granada Tavern and Mr Hibberd agreed.  Ms Wills also asked what would happen if she preferred to go onto the award, but Mr Hibberd gazed at her blankly. 

14. Ms Wills deposed that she asked that question because she had been thinking about her telephone discussion with Workplace Standards Tasmania and thought it would be beneficial to be under the award.  At the time, she deposed, she also recalls she had spoken to another employee at the Granada Tavern about working under the award and that the employee had said that because she worked under the award, she was not given any weekend work.  Ms Wills deposed as a result she was not sure what would happen to her shifts if she did not sign the AWA and instead worked under the award, but that she did not feel under any obligation to sign the AWA after the meeting. 

15. On 20 August 2006, Ms Wills attached a note to her timesheet indicating that the First Respondent had not followed correct procedure for implementing AWAs and that if she was going to sign a new agreement, she would first like to have an information sheet to be told what the future pay rate was.  That note is exhibit ERW3.  The note included an assertion that:

    “I am sure you are aware that until I have signed the agreement, my colleagues and myself are legally entitled to the award rate which is $17.30, including extra for Sat, Sun and PHs.  This is how my payment for previous weeks and this week should be made.”

16. Although there was a reference to "my colleagues", Ms Wills deposed she was not acting on behalf of any colleagues, nor was there any agreement that she do so.  

17. On 23 August 2006, Ms Wills became aware that the new roster did not include what she regarded as her usual weekend shifts and she was rostered for significantly less hours than she would usually work.  This was something brought to her attention by her colleague, Bianca Herlihy, in the morning of the same day. 

18. Ms Wills drove to the Granada Tavern to look at the roster herself and saw from the roster for the week ending 3 September 2006 she had only three shifts during that week and that for the week ending 10 September 2006 she had shifts only on Monday and Wednesday and that from Thursday to Sunday there were dashes on the roster which normally indicated that the employee was unavailable.  She deposed that she was fully available for those days and had never indicated otherwise. 

19. She deposed that she became upset because she needed five shifts to pay her bills and other financial commitments. 

20. Because there was no-one at the Granada Tavern at the time to whom she could speak about the rosters, Ms Wills went to see Mr Taylor at his home as she knew where he lived.  Mr Taylor answered the door and Ms Wills explained that she had seen the roster with only three shifts for her for the week ending 3 September 2006.  She said she could not survive on three shifts and asked why she was not rostered to work on the weekend.  She deposed that Mr Taylor told her that because of the note she attached to her timesheet, he had been told not to put her on any shifts.  He said he had put her on some shifts that he thought he could get away with and said words to the effect, "They’re our bosses, what can I do?"

21. Ms Wills deposed that on hearing this she was very distressed and felt she was being punished because of her note and was worried that she might lose her job as a result.  She deposed that she was also upset that she was not being rostered to work her usual number of shifts. 

22. On 24 August 2006 at about 4.00 pm, Ms Wills arrived home to find that she had missed two calls from Mr Hibberd whom she rang back at the Granada Tavern from her neighbour's telephone because she did not have a landline at her residence.  At the end of that conversation she made detailed notes, these being exhibited at exhibit ERW4.  She took notes because of prior advice from the Applicant in this case. 

23. The conversation is set out at paragraphs 47 to 52 of Ms Wills' affidavit.  The gravamen of the conversation according to Ms Wills was that Mr Hibberd wanted to know why she had not signed the AWA, said that the AWA was a condition of her employment when she started, that he was not obliged to employ her under anything else and that he was within his rights to start employing people who would sign the AWA who would be given preference over her. 

24. Mr Hibberd also, according to Ms Wills (at paragraph 50 of her affidavit), said, following discussion of the note that Ms Wills had given him earlier:

    “I agree with you that your pay level is wrong, you have been put on level 1, when you should have been put on level 2, which can be fixed.”

25. I note also that Mr Hibberd was, according to Ms Wills, concerned to discover if she had taken copies of the rosters, something she denied at the time as she did not wish to get into trouble.  Exhibit ERW5, however, are copies of the rosters she had obtained. 

26. On 26 August 2006 a meeting took place between Ms Wills and Mr Hibberd in the office at the Granada Tavern.  It went on, according to Ms Wills' affidavit, for about two and half hours, during which time they discussed at length their positions in relation to the AWA.  Mr Hibberd raised the question of customer service training at the Granada Tavern in mid-2006 and the failure of Ms Wills to complete the 12-hour session.  By the end of the meeting, Ms Wills said she would be willing to sign an AWA if the pay rates were up to the same rate as the award.  Mr Hibberd then told her that the matter was in her hands and said that if she went under the award, then she would not be a priority for being allocated work. 

27. On 27 August 2006 a notice was placed on the Granada Tavern board requesting that Ms Wills, Ms Herlihy, Ms Debnam, Ms Ralph and Ms Mansfield attend a meeting at 8.45 pm.  They were all casual waitresses.  They went to the meeting. 

28. Mr Hibberd started the meeting by saying words to the effect, "I want you to raise your concerns about the AWA and have a talk about it." 

29. Following what Ms Wills described as an awkward pause, she spoke first and said that she thought the AWAs were unfair because the award paid more on weekends.  A number of questions were asked which according to Ms Wills suggested that the other employees did not understand the AWAs very well. 

30. During the meeting Mr Hibberd said words to the effect:

    “The reason that we have the agreement is that if we didn't have it, the Granada would be run like a concentration camp, and I would have to make sure that you don't get any of the benefits such as drinks, cheaper meals and smoko breaks.”

31. During the meeting Mr Hibberd made the suggestion that Ms Wills was acting as the bargaining agent for the other girls but she denied this.  She then said to Mr Hibberd it would be fairer if they had the award as their pay rate rather than the AWA rate.  Mr Hibberd then talked about how much money the Granada Tavern was costing him.  He said he only had a small amount left over after paying all expenses. 

32. According to Ms Wills, Ms Ralph questioned what would happen if they chose not to sign the AWA and Mr Hibberd said he did not know.  Ms Ralph replied that they did know what would happen as it was what had happened to Ms Wills.  Ms Wills took this to refer to the fact that she was no longer being rostered to work on weekends.  According to Ms Wills, Mr Hibberd chuckled to himself and said words to the effect:

    “There is no proof that Emily has had a weekend working pattern anyway.”

33. This upset Ms Wills because she did believe she had a weekend working pattern and said:

    “Well, how come I've barely had a weekend off since I started working at the Granada?”

34. To which Mr Hibberd was said to have replied:

    “We'll have to see about that then, won't we?”

35. Ms Wills deposed that at the end of the meeting she suggested that what the staff wanted was a standard rate of pay in the AWA that allowed for the fact that they were not getting penalty rates on the weekend and was therefore an average of the various rates in the award.  The hourly rate that Mr Hibberd suggested was $17.30 per hour but Ms Wills calculated a figure of over $18.00 per hour.  She explained this to Mr Hibberd. 

    “Mr Hibberd said he would have to look at the figure and get back to us.  Mr Hibberd never got back to me on this issue.”

36. During the week ending 3 September 2006, Ms Wills deposed she was not rostered at all for weekend work.  She was rostered to work on Monday, 28 August 2006 which was a time she would usually be at university.  She had to forego a day at university to do the work because she needed the income. 

37. On Sunday, 3 September 2006, Ms Wills was called in to work because a number of people had been sick on that day. 

38. For the week ending 10 September 2006, Ms Wills deposed she did not work at all on the weekend and was only rostered to work two shifts but was called in on Thursday, 7 September 2006.  The rosters for those weeks have been exhibited to her affidavit. 

39. For the week ending 17 September 2006, Ms Wills was initially rostered to work only three shifts but worked four as she was called in to work on the dinner shift on 16 and 17 September 2006 on the weekend but did not work the Tuesday as rostered. 

40. For the week ending 24 September 2006, Ms Wills was rostered to work four shifts, although there was some change to her hours on Saturday, 23 September 2006. 

41. For the week ending 1 October 2006, Ms Wills was rostered to work for only three shifts. 

42. For the week ending 8 October 2006, Ms Wills was rostered to work three shifts and was called in to work an additional two shifts. 

43. The roster for the week ending 15 October 2006 was the first roster prepared by Ms Gillard after she took over from Mr Taylor.  Ms Wills was rostered to work three shifts, not including the weekend, but was later called in to work on Saturday, 14 October 2006. 

44. For the week ending 22 October 2006, Ms Wills was initially rostered to work three shifts on Wednesday, Thursday and Friday.  Although the roster indicates that she worked on the Saturday and Sunday, she did not work those days. 

45. For the week ending 29 October 2006, Ms Wills was rostered to work four shifts, including weekend work. 

46. For the week ending 5 November 2006, Ms Wills was initially rostered to work three shifts but was removed from the shift on Thursday and called in to work as a chef on Saturday. 

47. On 6 October 2006, Ms Wills deposed, she requested a meeting with Mr Hibberd to discuss her ideas for a human resources strategy.  The meeting was held in Mr Hibberd's office on that day and she handed over a copy of her strategy document, exhibit ERW16. 

48. According to Ms Wills' affidavit, Mr Hibberd immediately directed the conversation towards discussion of the AWAs.  Ms Wills deposed that she asked Mr Hibberd why he thought that he could not afford to pay wages. 

49. According to Ms Wills, Mr Hibberd responded by saying that the Granada Tavern barely broke even.  At the end of the meeting, Ms Wills deposed that she indicated she might be willing to sign the AWA.  She deposed that she did so because she was sick of the continued pressure to sign it. 

50. Ms Wills went on to depose that on a number of occasions after 6 October 2006, Mr Hibberd called her on her mobile phone to ask whether she had signed the AWA.  On one occasion Ms Wills deposed that she untruthfully told Mr Hibberd she had signed it and would return the AWA to him because she was fed up with the topic. 

51. On or about 18 October 2006, Mr Hibberd approached Ms Wills at work and asked whether it was worth giving her an AWA to sign.  She replied that she would take one and look at it.  Mr Hibberd asked if she was aware that he would put her onto a pay rate of $17.40 but indicated that the rate would not go up when the Fair Pay Commission reviewed pay rates.  Ms Wills deposed that she said that was okay and took the document. 

52. The AWA that Mr Hibberd gave her on this occasion included an information sheet but did not have her name on it.  Ms Wills could not recall if the AWA contained a rate of pay. 

53. On 21 October 2006, Mr Hibberd approached Ms Wills prior to the start of her shift.  He asked her where the AWA was and she replied that she did not have it.  She said that she had thought about the matter further and decided she would prefer to go onto the award. 

54. Ms Wills deposed that she commenced to be paid under the award a few weeks after that discussion with Mr Hibberd on 21 October 2006 but that she had not been rostered for any weekend work since 21 October 2006.  She had, however, on occasion been called in to work on a weekend. 

55. In or about early February 2007, Ms Wills commenced to work as a bar attendant at the Tasmanian Racing Club in Elwick.  She now works there on weekends and at the Granada Tavern on weeknights. 

56. I have set out the affidavit material of Ms Wills in considerable detail (the foregoing is really little more than a paraphrase of the terms of the affidavit itself).  This is because the case as it ran concentrated very considerably upon what had happened to Ms Wills. 

57. Michael Taylor is presently employed as the head chef on a full‑time basis by the Granada Tavern.  His duties for some period of time involved rostering Ms Wills and other similar employees.  Mr Taylor deposed in his affidavit that he had regular discussions with Ms Wills about her rostering needs and that she asked for four or five shifts per week because of her financial commitments.  He described (at paragraph 15 of his affidavit) this as "over time, this arrangement became an unwritten agreement between myself and Ms Wills". 

58. He deposed that he would roster Ms Wills on four or five shifts per week and on average two weekend shifts per week and almost invariably on Sundays. 

59. He confirmed that on 20 August 2006, Ms Wills pinned a note to her timesheet which he saw.  He deposed that on 21 August 2006 at about 8.30 am, Mr Hibberd came into the kitchen and picked up the timesheets.  Mr Taylor deposed that he asked Mr Hibberd if he had seen Ms Wills' note and that Mr Hibberd then departed. 

60. He deposed that about half an hour later he went into Mr Hibberd's office where there was a conversation to this effect:

    “MICHAEL HIBBERD:         I don't want her working weekends.

    MICHAEL TAYLOR:                 How come?

    MICHAEL HIBBERD:         She wants to be paid penalty rates.

    MICHAEL TAYLOR:                 I don't want to do the roster anymore.  Do you want to do it?

    MICHAEL HIBBERD:         No, no, you are not doing anything wrong.”

61. Despite his reservations, Mr Taylor continued to make up the roster for the two-week period from 28 August 2006 until 10 September 2006.  The roster from 21 August 2006 till 27 August 2006 had already been prepared. 

62. Before Mr Taylor had the opportunity to start making up the roster for the period 28 August 2006 to 10 September 2006, he deposed that Ms Berechree came into the kitchen and had a conversation to this effect:

    “BERECHREE:  Take Emily off the roster completely.

    TAYLOR:(Mr Taylor objected, but could not recall his words).

    BERECHREE:   Well, just hardly give her any then.

    TAYLOR:  Well, what about the others who haven't signed the AWA, if we take them off, we won't have any staff.

    BERECHREE:  Well, give her one shift on a weekend then, to keep her happy.”

63. Mr Taylor deposed that he then asked Ms Berechree about the others who had not signed the AWA and whether or not he was being asked to take them off the roster.  He explained to Ms Berechree that if that was her instruction, there would only be four wait staff available for the weekend, to which Ms Berechree replied that it would be okay to give Ms Wills a couple of shifts. 

1. Later on that same afternoon, according to Mr Taylor, Mr Hibberd came into the kitchen and said words to the effect, "I don't want Emily Wills working on weekends, don't put her on weekends." 

2. As a result of that direction, Mr Taylor only gave Ms Wills “a few shifts on the weekdays for the period from 28 August to September (sic) 2006” whereas he would normally have given her two shifts on the weekend. 

3. At paragraph 28 of his affidavit, Mr Taylor deposed that:

   “As a result of the direction from both Mr Hibberd and Ms Berechree, I did two things in relation to Ms Wills.  The first thing that I did was to reduce the amount of shifts I gave her than I normally did.  The second thing was that I did not put her on weekend rosters.”

4. Notwithstanding this, because of absences of staff, Ms Wills was, according to Mr Taylor, called in to work on weekends from time to time.  Mr Taylor broadly confirmed the conversation at his home deposed to by Ms Wills when Ms Wills asked him about the roster. 

5. Mr Taylor was then removed from doing the rosters in early October 2006. 

6. Gina Gillard, who took over from Mr Taylor with the rosters, had a conversation with Ms Berechree about Ms Wills in about mid‑October, at about the time she started doing the rosters. 

7. Ms Gillard deposed Ms Berechree told her that as a business decision she was not to roster Ms Wills on weekend work and that only in an emergency, where no other employees were available, was she authorised to roster Ms Wills for weekend work. 

8. Ms Gillard deposed that she had complied with Ms Berechree's direction. 

9. Natasha Mansfield, Danielle Ralph, Bianca Herlihy and Tamika Debnam were also called by the Applicant.  They are all young women who are or were formerly colleagues of Ms Wills. 

10. Ms Mansfield deposed that she attended the meeting on 7 August 2006 and that Mr Hibberd, inter alia, told the meeting that the AWAs that the employees had signed when they started employment were invalid.  According to Ms Mansfield, he said that if they signed a new AWA they would get a pay rise. 

11. Ms Mansfield confirmed that Ms Wills asked questions during the meeting. 

12. She also confirmed that there appeared to be an exchange between Ms Wills and Ms Berechree that was hostile. 

13. She deposed that she attended the meeting after work on 27 August 2006 along with four other employees. 

14. She recalled Mr Hibberd making the comment about "running the Granada Tavern like a concentration camp".  She deposed further that Mr Hibberd said he did not like Ms Wills being a representative of the other employees, but that she had not considered her to be her representative. 

15. She deposed that Mr Hibberd made a reference to the customer service course run in 2006 and that because those present had not attended that course, they did not deserve to get paid more. 

16. She deposed that she never signed the AWA and resigned in November 2006.  She in fact recommenced work at the Granada Tavern in February 2007, but only after Ms Berechree had told her that she would have to sign an AWA if she wished to take up such employment, which she did in about February. 

17. Ms Mansfield deposed (at paragraph 24) that she had not seen Ms Wills work on a weekend since she returned to the Granada Tavern.  In the past, in 2006, Ms Wills had worked weekends. 

18. Danielle Ralph deposed that she commenced work at the Granada Tavern in 2004 and still does.  She attended the staff meeting on 7 August 2006. 

19. She deposed that an envelope was distributed to each employee and that Mr Hibberd told staff to be careful with the documents inside it, to sign and return them. 

20. She recalled that Mr Hibberd told staff that wage rates would be inserted into the AWA at the time when the AWA was signed.  She recalled that Ms Wills asked what the rates were for the award and that Mr Hibberd said he did not know, although he thought it was about $13.00 per hour.  She confirmed Ms Wills' account of laughter about the issue as to where the documents should be returned. 

21. She also had attended the meeting on 27 August 2006.  At this meeting Mr Hibberd said words to the effect, "If we don't have the agreements, then the Granada Tavern would be run like a concentration camp."  She likewise confirmed that the customer service meeting was brought up by Mr Hibberd. 

22. She deposed that she had asked Mr Hibberd what would happen if the staff did not sign the AWA and whether they would lose weekend shifts, to which Mr Hibberd replied that he did not know.  Ms Ralph deposed that she then said words to the effect:

    “Well, we will know what will happen because it has already happened to Emily.”

23. She deposed that she made that comment because she had observed Ms Wills was working no shifts on the weekend whereas previously she had done. 

24. She deposed that Ms Wills said to Mr Hibberd she had not had a weekend off since she started working at the Granada Tavern, to which Mr Hibberd responded, "We'll have to see about that."  

25. Ms Ralph deposed that Mr Hibberd appeared to be getting angry during the meeting, something she deduced from the tone of his voice and the shortness of his responses. 

26. In early September 2006, Mr Hibberd asked Ms Ralph to go to his office, at which time she agreed to sign the AWA because he said that he could negotiate her pay if she signed it.  She deposed that she was scared about her job and in part signed because as a casual employee she was concerned about her job security. 

27. Bianca Herlihy deposed to a regular pattern of work between three and five shifts per week, including almost every weekend under the supervision of Mr Taylor.  She attended the 7 August 2006 meeting and likewise received the documents.  She deposed that she remembered Ms Wills asking questions although she could not remember what those questions were, or the answers.  She did recall that on one occasion Ms Wills asked a question and Ms Berechree said something back to her, in a fashion that led Ms Herlihy to conclude that Ms Berechree had been offended. 

28. Ms Herlihy confirmed that she had informed Ms Wills that she was not rostered on weekends anymore and that this appeared to upset Ms Wills very much. 

29. Ms Herlihy also attended the meeting on 27 August 2006.  She deposed that Mr Hibberd had asked why the staff present had not signed the AWA.  She confirmed Mr Hibberd referring to a concentration camp, and she also confirmed that Mr Hibberd said that Ms Wills was acting as a bargaining agent, something Ms Herlihy denied (although the affidavit suggests she did not voice this denial at the time).  She deposed that there was discussion about a standard rate of pay and Mr Hibberd said that they should discuss a figure amongst themselves and come back to him with a figure. 

30. In late November 2006, Ms Herlihy went to Mr Hibberd's office at the Granada Tavern to talk about an apprenticeship which he offered her.  He nonetheless within a short time started talking about Ms Wills and a conversation took place to the effect of:

    “HIBBERD:Is Emily a close friend of yours?

    HERLIHY:Yeah, she's my best friend.

    HIBBERD:Is she starting to realise that it's not about her, it's about getting a result?

    HERLIHY:I don't want to talk about that.  You should ask Emily.  I don't want to get involved.”

31. Tamika Debnam is also a casual waitress.  Like the others she is young, being now 18. 

32. She deposed that while she was working at the Granada Tavern she mainly worked weeknights and weekends as she was studying full-time during the week. 

33. She had also attended the 7 August 2006 meeting.  She recalled that Mr Hibberd said that the AWA signed in the past had problems and she recalled the distribution of papers to all the staff. 

34. She likewise attended the meeting on 27 August 2006.  She recalled that Mr Hibberd said that everyone had signed the AWA except for the five staff then present and that he said that if they did not sign the AWA, they would not be rostered to work on the weekend, to which she replied, "You can't do that." 

35. Mr Hibberd brought up the issue of the customer service course held in 2006 and said that the staff concerned were not good enough to work on a weekend and that he would use their failure to attend the training course as the reason that they were not rostered to work on the weekends.  According to Ms Debnam, Mr Hibberd also said that he would use customer complaints about those staff as another reason not to roster them for weekend work. 

36. Ms Debnam deposed that someone asked Mr Hibberd what would happen if they did not sign the AWA and went to the award, to which Mr Hibberd replied that the award rate was lower than that in the AWA.  He said that he did not have to be nice about the AWA and that he could "make our time working at the Granada Tavern very difficult".  He then used the words "concentration camp" in relation to how he would run the Granada Tavern. 

37. Ms Debnam also confirmed that Mr Hibberd appeared to raise his voice as the meeting went on. 

38. Ms Debnam confirmed that she decided to sign the AWA as a result of the risk that she would lose her weekend work and because it was better to sign it.  She did so in October 2006. 

39. She further confirmed that Ms Wills did not seem to work on weekends in the period up until January 2007 when she ceased work with the Granada Tavern, in contrast with 2006 when she generally did so regularly. 

40. All of the Applicant's witnesses were called and cross‑examined.  I will return to their evidence in the Court in due course. 

41. Evidence was, however, also filed on behalf of the Respondents. 

42. Mr Hibberd filed an affidavit on 31 October 2006. 

43. He confirmed that he had been requested to attend the offices of the Office of Workplace Standards (sic) (“OWS”) by the Applicant for a meeting on 22 June 2006.  At that meeting the Applicant advised Mr Hibberd that a complaint had been made to the OWS by a former employee and that the OWS was investigating possible underpayments to employees at the Foreshore Tavern.  On 20 July 2006, notices to produce documents were served on Mr Hibberd and others. 

44. Mr Hibberd referred to the meeting on 7 August 2006 and deposed that he advised staff on that date that (i) the OWS were conducting an audit and the hotel group was cooperating and that staff should do so also, "and that if OWS determined that any staff had been improperly dealt with, they would receive their full entitlements”, (ii) it was advised to all staff present by Mr Hibberd that there were concerns about employees purportedly employed under the current AWA, and (iii) that the OWS audit was an opportunity to implement a new AWA and to ensure that all procedures for employment and payment of wages were correct and compliant. 

45. Mr Hibberd deposed that staff were advised that they would have seven days to consider the AWA and that thereafter he would conduct one‑on‑one interviews with them, following which they would have a further seven days to decide whether they wished to enter into the AWA. 

46. Mr Hibberd conceded that a deed of release was also circulated on 7 August 2006 but deposed that it was withdrawn a week later as a result of a meeting with Workplace Standards Tasmania. 

47. Mr Hibberd denied that Ms Wills asked any questions at the meeting on 7 August 2006 but did admit that she spoke to him after the meeting with some questions to which he said he did not know the answer. 

48. Mr Hibberd suggested that Ms Wills asked a second question about what happened if she stayed on the award, to which Mr Hibberd deposed that he specifically recalled stating that an employee could not choose to be employed under the award and expect all of the other benefits that the proposed AWA provided. 

49. Mr Hibberd deposed that between 7 August 2006 and receipt of Ms Wills' note of 20 August 2006, a number of staff had been signed up to AWAs.  Mr Hibberd relevantly confirmed (at paragraph 23 of his affidavit) that he had by 21 August 2006 formed the view that Ms Wills appeared to be acting on behalf of some of the other waitresses and that a further meeting had been arranged for 27 August 2006.  Mr Hibberd deposed, "Discussion did ensue as to the rostering of Ms Wills on weekends".  It should be noted that that is the only direct response by Mr Hibberd to the assertions in the initiating affidavit of Mr Smith, the Applicant, which squarely alleged that Mr Hibberd had directed Ms Wills to be removed from weekend work. 

50. Mr Hibberd deposed that in any event Ms Wills continued to work on weekends.  He denied a telephone call asserted on 24 August 2006 between himself and Ms Wills. 

51. Mr Hibberd deposed that he had a meeting with Ms Wills on

    
    

    26 August 2006 after 2.30 pm at which he said he made notes.  According to his affidavit, the meeting appears to have been mainly about staff training and weaknesses in Ms Wills' performance. 

52. Mr Hibberd confirmed his attendance at the meeting on

    
    

    27 August 2006.  He confirmed that there had been mention of customer service standards and training requirements.  He also asserted, inter alia, that Ms Wills was to respond as spokesperson for the five staff present, which he deposed were acting as a group. 

53. On or about 30 August 2006, Mr Hibberd became aware through Mr Taylor that OWS had contacted Mr Taylor.  MDH3 is Mr Hibberd's file note of his conversation with Mr Smith, and it suggests an element of irritation on the part of Mr Hibberd with what he regarded as inappropriate interference with his staff, and I note that Mr Hibberd felt it appropriate to conclude the call by referring to his entitlement to deal with complaints about customer service and failure of staff to improve their performance by various forms of action. 

54. I note further that in paragraph 35 of his affidavit, Mr Hibberd referred to the fact that Danielle Ralph approached him to sign the AWA on or about 4 September 2006.  Mr Hibberd deposed:

    “She advised the second respondent that she wanted to do what was best for her and not be influenced by others and what they wanted and that she could stand on her own two feet.”

55. He went on to say:

    “Ms Ralph advised the second respondent that the staff members present at the meeting on 27 August 2006  had agreed between themselves that if they did not sign the AWA, they would be able to dictate rates and when they worked which shifts to the first and second respondent.”

56. Mr Hibberd deposed that he had a meeting on 6 October 2006 with Ms Wills to discuss her human resources work.  He deposed that Ms Wills freely advised him that she would sign the AWA and was given an individual AWA, completed with appropriate rates and an employee information sheet. 

57. He deposed that he contacted Ms Wills by telephone on

    
    

    13 October 2006 to follow up and was advised by Ms Wills that she had signed the AWA and would return it. 

58. He deposed to a further meeting on 21 October 2006 with Ms Wills.  A copy of his file notes were made following that discussion.  It emerged that Ms Wills refused to sign the AWA. 

59. I note that the file note, exhibit MDH5, records Mr Hibberd as saying, amongst other things:

    “I advised her it will not affect her hours whether she was on the AWA or employed under the award and that the basis for work has and will always be determined by her ability to do the job and nothing else.  Just do your job properly.  Don't let what (sic) happening affect your performance and adhere to the award.”

60. Relevantly, finally at paragraphs 52 and 53 of his affidavit, Mr Hibberd deposed that the hours worked by Ms Wills varied but averaged between 12.73 and 14.73 hours per week between 20 February 2005 to 22 October 2006.  He deposed:

    “Her hours have depended on staffing requirements, staffing illness and personal preference.”

61. Mr Hibberd denied there had been a reduction in Ms Wills' hours of work because of either her refusal to sign an AWA or her note to management. 

62. I should interpolate that Mr Hibberd's affidavit shows all the signs of having been prepared by lawyers and was filed by him at a stage when he was represented by his then and current solicitors. 

63. The Third Respondent, Ms Berechree, also filed an affidavit on 31 October 2006.  It is clear from her response filed the same date that she was also legally represented in the process of the preparation and filing of that affidavit. 

64. Ms Berechree denied that it was ever part of her employment to draw up rosters for relevant staff.  She denied the conversation alleged between her and Mr Taylor in which it was asserted by Mr Smith's affidavit that she ordered Mr Taylor to take Ms Wills off shifts.  She said:

    “I recall a conversation with Mr Taylor where I was informed that Michael Hibberd had requested to take Ms Wills off the roster.  My ultimate response to Mr Taylor was that he   did the roster and he should draw it up as he thought best.  There was at no stage a direction by myself to Mr Taylor to take Ms Wills off the roster.”

65. The other parts of Ms Berechree's affidavit are no longer relevant. 

The oral evidence

1. Ms Wills was, not surprisingly, the first witness called by the Applicant.  The transcript of her cross-examination, most of which was by senior counsel for the First and Second Respondents, runs to over 80 pages.  It is self-evidently inappropriate to seek to traverse each and every answer that she gave.  Ms Wills was extensively cross-examined about the human resource strategy she prepared (exhibit ERW16) and gave to Mr Hibberd, and the discussions she had with him about it.  It is fair to characterise the cross-examination as having been designed to show that Ms Wills was, in addition to being a person of some fortitude, concerned to obtain employment as a human resources consultant or officer with Mr Hibberd's group. 

2. I found Ms Wills' answers to be cogent and believable.  In essence, she said that she was using the exercise as an endeavour both to let Mr Hibberd know that she was more than a mere casual waitress and that she had the sort of skills that the document propounded, but that she never intended to and knew that she never would in fact receive employment in that capacity. 

3. The picture that emerges to me from this episode is that of a self‑confident, enthusiastic but still very young woman seeking to gain experience. 

4. It was put to Ms Wills that exhibit ERW16 showed past misconduct by her in her relations with Ms Berechree.  I accept Ms Wills' explanation that she was referring therein only to her laughter at the meeting on 7 August 2006, and her apology for it reflected more a desire, as I would see it, to smooth the way in her discussions with Mr Hibberd about the human resources document than any acceptance by Ms Wills that there was anything much for which she needed to apologise. 

5. It was put in cross-examination (P-61) that Ms Wills had said to one Ellen Bauld words to this effect, "That if he, Michael Hibberd, if he wants me to sign his fucking contract, he can sign mine." 

6. Ms Wills replied that she did not remember having that conversation with Ms Bauld and Ms Bauld was not called to give evidence. 

7. Ms Wills went on to say (at P-65) that she had never said anything to Ms Bauld to the effect that if Mr Hibberd was looking for a signature on the AWA, then he could sign her job application. 

8. The tenor of much of the cross-examination of Ms Wills appeared to spring from an understanding on the part of Mr Hibberd and those acting for him that Ms Wills was a woman of determination and maturity well beyond her years who was acting at least in part as some sort of shop steward for those who were objecting to sign the AWAs. 

9. I have no doubt, putting the matter shortly, that Ms Wills put her document to Mr Hibberd as something of a kite to see how well it flew.  Her evidence was that she had already been told by another employee that she would not receive the human resources job and I accept that evidence. 

10. Ms Wills stuck firmly to her assertion that the dates from

    
    

    28 August 2006 through to 3 September 2006, more particularly those on 31 August 2006 and 1, 2 and 3 September 2006, were days she had been concerned to get some work.  She denied that she had made herself unavailable for those days and stated (P-74):

    “I would not have photocopied the rosters if I had told him that I was unavailable.  The whole reason that I got upset was because my name - there were dashes there and I wasn't being rostered on those days when I usually was ... why would I get upset for any other reason?”

1. Ms Wills was closely cross-examined about her notes following her conversation with Mr Hibberd (exhibit ERW4).  Much was made of the inconsistency in that she asserted in that document that a phone call commenced at some point after 5.05 pm and went on for 40 minutes in circumstances where it was put that there was another later phone call at 5.30 pm. 

2. Despite the skill and tenacity with which Ms Wills was cross‑examined, however, the burden of her evidence remained undisturbed.  While it is clear that there are some inaccuracies as to such matters as the amount of time conversations took place, as it is clear that some of the accounts earlier written and more contemporaneously written by Ms Wills do not now exactly accord with what is in her affidavit, these in my view are no more than the usual changes of recollection that occur in ordinary human experience. 

3. While Ms Wills was at times, as the transcript may well reveal, somewhat defensive and slow to respond, and indeed argumentative, having observed Ms Wills cross-examined over a long time, I came to the clear view that she was a witness of truth. 

4. While one must approach issues relating to demeanour with caution (see Justice David Ipp Problems with fact-finding 80 ALJR 667), there is nothing in such cases as Fox v Percy (2003) 214 CLR 118 that goes so far as to say that a judicial officer cannot form a view about the credit of a witness. I thought that Ms Wills presented as a young woman of some fortitude who clearly felt that she had been wronged and was keen to ensure that that wrong not be, as it were, undone by her cross-examination. Nonetheless, what she said was given in a fashion which was, given the tenacity of the cross-examination, impressive.

5. I observed in the running of the trial to senior counsel for the First and Second Respondents that his manner and presence in Court was a formidable one, and as I pointed out at the time, I said that as a credit to him rather than in any other sense.  One has to bear in mind that a young woman in her early 20s being cross-examined by experienced senior counsel is highly likely to be at times somewhat defensive, and I did not take Ms Wills' evidence at any point to go beyond that kind of response. 

6. It was put (P-104 and following) that in the conversation on the telephone (which Mr Hibberd says was on 22 August, not the 24th as suggested by Ms Wills), Mr Hibberd's position was that he was entitled as an employer, if Ms Wills was going to seek penalty rates for weekends, to employ her on weekdays only. 

7. Ms Wills replied (P-104):

   “No, it was more along the lines, "If you are not going to work under an AWA then I'm not obliged to employ you".”

8. She said (P-105):

   “He also said that he would start employing people to replace me.”

9. It was put that her earlier notes made no reference to the fact that the decision to replace her was limited to the context of weekends and she stated:

   “That was - no, that was not just what he stated ... that was one of the things that he talked about but it wasn't the only thing that he mentioned ... it wasn't just him telling me that I wasn't going to get weekends if I didn't sign the agreement.”

10. She did, however, confirm that that was one of the things that Mr Hibberd conveyed to her. 

11. Ms Wills confirmed (P-110) that as she saw it, contrary to the position contended for by Mr Hibberd, staff on the award did have cheap discounted meals, but she did confirm that Mr Hibberd had said that there were benefits available under the AWA which were not available under the award. 

12. Under cross-examination by counsel for the Third Respondent, Ms Wills confirmed that when Mr Taylor made the remark to the effect that he had been told to change the roster by "our bosses", he did not in fact identify Ms Berechree in terms as such a person. 

13. Ms Wills, however, despite the terms of the apology contained in exhibit ERW16, confirmed that that related only to the incident on 7 August 2006.  She maintained that otherwise she had really no significant difficulties in her employment with Ms Berechree. 

14. In re‑examination, Ms Wills was asked about the remark made by Mr Hibberd on 27 August 2006 which had been suggested to have been made in a throwaway fashion by senior counsel for the First and Second Respondents (a proposition that Ms Wills did not accept) and in clarification she said (P-124):

    “He said if we worked under the award we would - the Granada would have to run like a concentration camp and we wouldn't be able to receive any of the other benefits such as discounted meals and drinks and all that sort of stuff.  I think that is what he said.”

15. Two earlier statements dated 20 August 2006 and 28 August 2006 together with the statutory declaration dated 31 August 2006 were tendered in re‑examination as exhibits A1, A2 and A3 respectively.  They had been the subject of extensive cross-examination, and in my view were sufficiently contemporaneous to be admissible.  These documents are, subject to the remarks earlier made at paragraph 184 about usual changes of recollection, consistent with Ms Wills’ oral evidence. 

16. Mr Taylor was cross-examined.  Although it emerged that a number of the phrases used in his affidavit were drafted by the lawyers, and although it was clear, contrary to the affidavit, that the alleged unwritten agreement between himself and Ms Wills was an overstatement of the true circumstances, the picture that emerged for me was that Mr Taylor would generally roster staff in the fashion that they desired, and given that it was generally harder to get staff later in the week (P-148), people who wanted weekend work were likely to get it.  He confirmed that they tried to avoid working penalty rate employees on the weekends but would do so if they were short-staffed or if they were "good leaders of function work" (P-150).  He confirmed that notwithstanding the instruction from Mr Hibberd not to roster Ms Wills on weekends, she nonetheless was called in from time-to-time.  This took place because of shortages of staff or other exigencies. 

17. Mr Taylor was not able, at least to my mind, to fully explain all the entries in the various roster documents.  He was clear (P-157) that "I didn't roster her on weekends while I was doing this ... only if she was called in.  I am quite positive with that."  He confirmed (P-159) that Ms Berechree had said to him, "Give her one shift on a weekend then to keep her happy" and that later in the same day Mr Hibberd came back in and repeated that he did not want Ms Wills rostered on weekends.  In response to a question (P-160), "What he told you was limited to the weekend shifts because he didn't want to have to pay the penalty rates," the answer was, "More or less, yes." 

18. Mr Taylor was cross-examined by counsel for the Third Respondent who put it to him that his recollection of the conversation with Ms Berechree was wrong and that Ms Berechree had indicated to him that rosters were his duty.  His answer to that was quite clear.  He said (P-164), "I am quite positive she never." 

19. Although counsel cross-examined skilfully on this issue, I am quite clear in my mind, having seen Mr Taylor give his evidence, that in the ultimate he stuck to his version of the conversation as deposed in his affidavit, albeit that that affidavit was, as is otherwise patent, drafted by someone else. 

20. Mr Taylor confirmed that it was only Ms Wills he was told not to roster out of those employees who had not signed AWAs.  He was aware that there had been a lot of talk about AWAs in the period from August 2006 onwards. 

21. It emerged in re‑examination that Mr Taylor knew from time to time at least roughly who in the kitchen and who in the cooking staff and the waiting staff were on the award.  He reconfirmed, "So if they were on the award, we would roughly try not to work them weekends."  (P-168) 

22. Ms Gillard gave evidence‑in‑chief by leave, additional to her affidavit.  She deposed that once she took over doing the rosters, she was aware that Ms Wills and one Yvonne Cliff of the casual staff were under the award.  She deposed that she had raised with Ms Berechree the question of Ms Cliff following the discussion about Ms Wills.  Ms Berechree had told Ms Gillard (at paragraph 18, Gillard's affidavit) that as a business decision she was not to roster Ms Wills on weekend work and only in emergencies when no-one else was available could Ms Wills be rostered. 

23. In evidence‑in‑chief, Ms Gillard confirmed that she had said during that conversation, "What about Yvonne?" and that Ms Berechree replied that she could work on weekends but only one shift and that that was what in fact subsequently occurred. 

24. Ms Gillard confirmed that there had been rumours in the workplace even before 7 August 2006 to the effect that Ms Wills was organising a number of waitress staff to take a collective position, although she had not herself become involved in those negotiations (P-175).  She also confirmed that there was apparently a perception that Ms Wills was using the negotiations about the industrial instrument to foment her application to be the human resources manager. 

25. I formed the clear impression that Ms Gillard was extremely antipathetic to Ms Wills from the terms of the answers she gave and the way in which she gave them.  I formed the clear impression that Ms Gillard was totally opposed to any suggestion that Ms Wills achieve the position of human resource manager.  She confirmed

    
    

    (P-178) that she had told Mr Hibberd that this was the case. 

26. Under cross-examination by counsel for the Third Respondent, she said that she had a poor opinion of Ms Wills as an employee so far as her customer service skills were concerned and that Ms Cliff had been rostered on one day a weekend at least in part because she was more experienced than Ms Wills and despite the fact that she had not signed the AWA. 

27. Ms Ralph was called and was cross-examined.  She confirmed that she had noticed that Ms Wills had lost her weekend shift work in the weekends prior to the meeting on 27 August 2006.  Although under cross-examination she was not certain as to the particular time at which that loss had occurred, she stuck to her evidence that it had in fact happened. 

28. Ms Ralph was also cross-examined as to the extent to which Ms Wills had, prior to the meeting on 27 August 2006, discussed with Ms Ralph the position that should be adopted at the meeting. 

29. She confirmed (P-187) that her remark about "We know what will happen because it had already happened to Emily" was not made because of anything Ms Wills told her before the meeting but "I just observed going back a while ago from her not being on weekend work." 

30. There was further cross-examination of Ms Ralph in the context of Ms Wills acting as an agent or organiser on behalf of other employees. 

31. Ms Mansfield was called and was cross-examined.  She confirmed that in August 2006 there was discussion between co-workers about the AWA and also about back pay. 

32. She confirmed that she had discussed the AWA with Ms Wills, although this was not because Ms Wills was doing industrial relations law at university, a matter of which Ms Mansfield was ignorant. 

33. Ms Mansfield confirmed (P-207) that the meeting on 27 August 2006 was, as far as she was concerned, predominantly between Mr Hibberd and Ms Wills.  

34. Ms Mansfield confirmed (P-209) that Ms Wills had been removed from weekend work.  She said:

    “Yes, there was a lot of talk about that because everyone worked every weekend.  It is very rare that we have a weekend off, so if one person doesn't work the whole weekend it is kind of hard to go unnoticed by the rest of the kitchen staff.”

35. In re‑examination, Ms Mansfield confirmed her impression that after the second meeting on 27 August 2006, Mr Hibberd really wanted the five employees to sign the agreement.  She said:

    “When he gave us the example about how much it cost to run the kitchen area and the concentration camp comment, and the fact that he is arranging all the trouble to talk to Emily Wills and everyone else, I realised that he was really quite desperate for us to sign it.”

36. Bianca Herlihy was called and cross-examined.  Unlike some of the other witnesses, she was of the view that there had been no discussion with Ms Wills that the five employees who did not sign the AWA should stick together, although she was aware that between 7 and 27 August 2006, Ms Wills was having discussions with Mr Hibberd about the AWA. 

37. Notwithstanding this, she asserted that Mr Hibberd had asserted that Ms Wills was indeed acting as a bargaining agent, even though this was not the case. 

38. She did confirm (P-222) that the conversation that took place in November 2006 was generally to the effect, as suggested by counsel for the First and Second Respondents, "What I am suggesting to you is that the context of that was that it was nothing personal against Emily, I am just acting in the best interests of Granada - yes." 

39. Tamika Kaye Debnam was called and was cross-examined.  

40. Although her evidence might appear to be equivocal (P-226), she confirmed, as I understand it, that although there was plainly some discussion between the five employees who had not signed the AWA, there was no concerted joint effort (see line 39 P-226).

41. Although pressed, she stuck by the assertion in her affidavit, "If we do not sign the AWA then we will not be rostered to work on the weekend" (see P-228 at line 40).  Her answer at line 42, "I just made it up, yes," was clearly sarcastic, as her later answers made clear. 

Findings about the evidence

1. Although this has been a strongly contested case, a number of facts seem to me either not to be in dispute or to be clear beyond doubt in any event. 

2. It is clear that for a number of years, including at least from when Ms Wills commenced her employment onwards, the First Respondent had a practice of issuing to staff what were thought to be valid AWAs. 

3. The Second Respondent, Mr Hibberd, was quite clearly at all relevant times the moving force behind the activities of the First Respondent. All his conduct as disclosed by this case points overwhelmingly to that conclusion. No submission was advanced by counsel for the First and Second Respondents that Mr Hibberd’s conduct was not also that of the First Respondent. The First Respondent’s state of mind is attributable to Mr Hibberd in any event – see s.826 of the Act.

4. In or about July or August 2006, it came to the attention of Mr Hibberd that the AWA regime he had had in place at the Granada Tavern and, as I understand it, at other establishments in which he had an interest also, was in fact invalid. 

5. It is quite clear that, whether he knew this before or did not know, Mr Hibberd was made aware that there was a real prospect of underpayments which might need to be addressed.  That this is so is plain both from what he said at the 7 August 2006 meeting and from the fact that he, in my view completely inappropriately, sought to include a deed of release with the documents circulated at that meeting. 

6. It seems perfectly clear that whatever the true state of affairs was, Mr Hibberd was keen to have his employees sign up to a new AWA by no later than 7 August 2006.  It is more probable than otherwise that this desire was interrelated with a desire to save money by avoiding the financial impost that coverage of employees by the relevant award would impose.  Mr Hibberd himself referred to the narrow alleged margin of profitability of the Granada Tavern on more than one occasion in the course of the events that transpired. 

7. Following the meeting on 7 August 2006, the next material development that is beyond dispute is that on 20 August 2006 Ms Wills appended a note to her timesheet which indicated unequivocally that she desired to be treated as an award employee. 

8. That provoked a rapid response from Mr Hibberd by way of a telephone call, made clearly to her and not to any of the other employees who had not signed an AWA by that stage. 

9. In due course the meeting of 27 August 2006 took place, at which time plainly, and unsurprisingly, only the five employees who were not at that stage signed up to the AWA were summoned. 

10. It is overwhelmingly clear from the general tenor of the evidence given by all concerned that in the period up to that meeting there had been a lot of discussion amongst the employees of the Granada Tavern about the AWAs and it is equally clear, both from the evidence given and from the manner in which Ms Wills was cross-examined, that by no later than that meeting, Mr Hibberd had formed the view that Ms Wills was something of a ringleader on the part of the group of five employees who had not signed an AWA. 

11. In the context of a series of events in which it was to Mr Hibberd's perceived advantage to have employees sign an AWA and that Ms Wills was a perceived spokesperson or ringleader of those who had not acceded to that desire, it is scarcely surprising that he would have been particularly eager to have her accede to an agreement to sign an AWA. 

12. As I have said, these findings are really in my view either not controversial or so overwhelmingly clear as to be beyond any sort of dispute. 

13. Other areas of the evidence turn upon the findings I have made as to the evidence of the witnesses. 

14. Although there were a number of differing accounts given of the various events, I find such differences as there are to be unremarkable given the fact that human beings very rarely have identical memories of events which they have attended.  The differing accounts given by the Applicant's witnesses of the meetings, while skilfully elicited and tested in cross-examination, do not in my view disturb the overall pattern of the evidence. 

15. It seems clear beyond doubt to me that at the meeting on

    
    

    7 August 2006, Ms Wills stood out as an employee who was likely to be difficult.  I find that she laughed in a fashion that was felt by some to be inappropriate (although it is not clear to me that it was necessarily in fact discourteous of her to do so) and that Ms Berechree was annoyed by this. 

16. There is no question in my mind but that Ms Wills had already contacted OWS and formed the view that she should have been employed under the award for the whole time that she had been employed at the Granada Tavern.  I find that Ms Wills did raise the issue of the pay rate under the award and that Mr Hibberd's reply was dismissive of that assertion. 

17. I likewise accept the evidence of Ms Wills that Mr Hibberd at that meeting spoke about another person taking him to Court and that they would get their comeuppance.  The way in which this litigation has been strenuously resisted by Mr Hibberd and the First Respondent suggests that it is highly likely that he would have spoken in these terms to discourage any challenge by any employees. 

18. I accept the evidence of Ms Wills that prior to August 2006 her employment had by and large been unexceptionable.  There is nothing to suggest that she was ever given any written or oral warnings as to the performance of her duties, and her continued regular employment as a casual, when it would have prima facie been open to the First Respondent simply not to continue her employment (leaving aside technicalities as to whether such would have constituted a dismissal), suggests that she was a valuable employee.  Senior counsel for the First and Second Respondents unequivocally confirmed that it was not part of his clients’ case that anything had occurred by way of disciplinary response to any perceived rudeness by Ms Wills (see P-174). 

19. Although there was challenge to Ms Wills' assertion that she had an unwritten agreement with Mr Taylor as to the hours she worked, there was in truth no substantial challenge to her assertion that she had worked a pattern by and large of three or four dinner shifts during the week and being rostered regularly to work both on Saturdays and Sundays, being almost always rostered to work on the Sunday lunch shift. 

20. I accept that the evidence does not go so far as to make out the assertion that this was any sort of enforceable or identified agreement, but I have no doubt that the pattern of work was as Ms Wills said it was and that absent the events that transpired, it would have continued. 

1. There was an issue as to whether or not the AWA handed out on 7 August 2006 was a final document or whether it was only the basis for negotiation. 

2. I think it is more probable than otherwise that the evidence called by the Applicant to the effect that the document was not distributed as a draft but was required to be returned by the following Friday, 11 August 2006 is correct. 

3. Mr Hibberd was plainly sufficiently concerned about his coverage in terms of industrial instruments to include a release in the documents distributed on 7 August 2006.  I think it more probable than otherwise that he desired a speedy resolution of what plainly was a matter of concern to him. 

4. Further, in addition to these indicia, I found the evidence of Ms Wills and the other witnesses who supported her in this regard to be compelling.  

5. To the extent that other witnesses had a differing recollection, I accept that their evidence was honestly given but was inaccurate.  I note that Mr Hibberd did not himself give evidence, nor did Ms Berechree, to support the version of facts for which they contended.  This is a matter to which I will return later. 

6. Following the note of 20 August 2006, it seems perfectly clear that Ms Wills' prior pattern of work changed.  I accept Ms Wills' evidence that her removal from weekend work thereafter arose directly because of that note and its sequelae.  Those sequelae included that on the very next day Mr Hibberd became aware early in the morning of Ms Wills' note because Mr Taylor told him about it.  Within approximately half an hour thereafter, the conversation to which I have earlier referred took place.  Mr Hibberd made it clear that he did not want Ms Wills working weekends.  It is interesting to note that Mr Taylor was immediately troubled by the instructions Mr Hibberd gave him. 

7. Thereafter, at a point not precisely indicated by the evidence but reasonably soon, Ms Berechree came into the kitchen before Mr Taylor had time to complete the roster for the period 28 August 2006 to 10 September 2006 and the conversation took place in which, as I find, Ms Berechree said, "Take Emily off the roster completely."  The ultimate outcome was, as I find, that Ms Berechree said, "Well, give her one shift on a weekend then to keep her happy." 

8. That was expanded it would appear, by Ms Berechree, in cases of necessity, to it being okay to give Ms Wills a couple of shifts. 

9. There is no evidence that Ms Berechree had at any stage prior to that conversation, or indeed Mr Hibberd, ever discussed Ms Wills' rosters with Mr Taylor. 

10. The case sought to be propounded by the Respondents was to the effect that there was a long-running policy whereby award employees, whom I accept Mr Taylor would have been reasonably able to identify, should not be employed on weekends because they would attract penalty rates. 

11. While on one view it might be felt that the fact that Ms Wills specifically raised the award by her note of 20 August 2006 merely alerted the Respondents for the first time to this state of affairs as regards her, I find it is more probable than not that this intervention in Ms Wills' working routine arose directly out of her opposition, as it would have appeared to Mr Hibberd and by extension to Ms Berechree, to the AWA. 

12. Neither Mr Hibberd nor Ms Berechree went to Mr Taylor and said anything remotely to the effect that the employment of Ms Wills contravened a long-standing, or indeed any, policy in relation to the employment of award employees on weekends. 

13. Had there been any such policy, I would have expected the Respondents in their initial response to have referred to such a policy.  They did not do so.  Given that Mr Taylor furthermore knew who the award employees were, one would have expected that it would have been a matter of ease for the Respondents to identify these employees and produce the rosters showing that they were excluded from weekend work. 

14. None of these things has occurred. 

15. It is noteworthy that when Ms Wills contacted Mr Taylor by visiting him at his home to discuss this lack of work, he identified the note attached to the timesheet as the reason.  He said that this was something the bosses had told him to do. 

16. That Ms Wills' pattern of work changed, and did so dramatically, is equally apparent from the remark made by Ms Ralph at the meeting on 27 August 2006.  It seems clear that Ms Wills' change of hours had come to the notice of a number of Ms Wills’ co-employees and, clearly in Ms Ralph's case, not from Ms Wills. 

17. Whatever the date, there was plainly a phone call between Ms Wills and Mr Hibberd relatively shortly before 27 August 2006.  Exhibit ERW4 is, I accept, a reasonably accurate description of the discussion.  Unlike counsel for the Respondents, I am not concerned by the disparities evinced by the time schedule of the call commencing at

    
    

    5.05 pm and going on for 40 minutes, followed by another call at 5.30 pm.  This is plainly an inadvertent error by Ms Wills.  Had she wished to inaccurately represent the time, she could have easily rewritten the notes with a series of times that were internally consistent.  The error only goes to suggest to me that these notes reflect the haste in which they were written at a time contemporaneous to the conversation. 

18. It is clear from those notes that Mr Hibberd told Ms Wills in unequivocal terms that she would not be employed if she did not sign the AWA.  It is clear that he said to Ms Wills that she would be employed at his discretion [emphasis added] on weekdays only as per his need for her, and that others would have preference over her.  One might infer that the others would by definition be people who had signed the AWA, although that is not what the notes suggest. 

19. Noteworthily, exhibit ERW4 records Mr Hibberd, accurately as I find, accusing Ms Wills of influencing other people's decisions (and clearly in circumstances where Mr Hibberd thought this inappropriate). 

20. It is also clear from exhibit ERW4 that the conversation extended to possible claims for underpayments.  Mr Hibberd said anyone who tried to claim was opportunistic, and in response to an assertion by Ms Wills that she believed the pay rates were unfair, Mr Hibberd said that he would fight any claim on the basis that he had "17 items" that he could use to fight any such claims of underpayment. 

21. He agreed that Ms Wills had been placed on the wrong classification but that this could be fixed up. 

22. The picture that emerges to me from Ms Wills' evidence including exhibit ERW4 is that the role of Ms Wills as a representative or, more particularly, difficult employee was perfectly clear in Mr Hibberd's mind and that the signing of the AWA was at least to an extent interrelated with the possibility of the evasion by Mr Hibberd of any claims for underpayment arising out of the apparently recent discovery that his former AWAs were not effective to protect him from such claims, and certainly related to a desire to avoid the award’s terms in respect of ongoing employees. 

23. As I have earlier stated, it is clear to me that once Ms Wills became, as it were, visible to Mr Hibberd in this way, Ms Wills' hours of work were altered. 

24. I have no doubt it was the intention, put into effect as best was possible, that Ms Wills should lose weekend work, which was known to Mr Taylor to be congenial to her, and I have no difficulty in inferring that Mr Hibberd and Ms Berechree had it in their minds that it was work that was attractive to Ms Wills if for no other reason that

    
    

    Ms Wills had said on 7 August 2006 that weekend work paid more under the award. 

25. I have no doubt likewise that although in the ultimate Ms Wills obtained roughly the same amount of hours of work as she had had previously, this arose out of the exigencies applicable to running the Tavern.  It is clear that there were continual patterns of non-attendance by employees from time to time, and I find, reinforced as I am by Mr Taylor's evidence under cross-examination, that a number of the days that Ms Wills worked after she became perceived to be antagonistic to the management arose simply because there was no alternative.  It is in my view simplistic just to look at the rosters and do the sums.  The tenor of the evidence as a whole is in my view overwhelming. 

26. Mr Hibberd wanted Ms Wills to work less and more particularly less at weekends.  He was aided and, as I find, intentionally assisted in that regard by the conduct of Ms Berechree to which I have referred. 

27. By 26 August 2006 the principal players were meeting.  As I have already said, I find that the provision by Ms Wills of her human resource document was no more than a rather ingenuous, albeit relatively sophisticated, endeavour by her to test her skills in a potential area of activity for her in the future. 

28. At this time and at this meeting, Mr Hibberd started to refer to the failure by Ms Wills to attend a customer service training course.  I have no doubt whatever that this matter was raised in the context of Mr Hibberd's desire to have ammunition available to him to assert poor performance or even perhaps misconduct on the part of Ms Wills and indeed other employees. 

29. I note that in the ultimate, counsel for the First and Second Respondents and counsel for the Third Respondent did not press that anything had happened to Ms Wills as a result of poor performance. 

30. That then leads one to wonder why it was that Mr Hibberd raised the matter on more than one occasion.  I have no doubt that this was being used by Mr Hibberd to justify his position, and/or to act as a threat against the employees concerned. 

31. Notwithstanding that the meeting was at least in part about Ms Wills' document, it appears to have gone on for a very considerable period of time and involved a discussion which on any view did not end in agreement between Ms Wills and Mr Hibberd about the AWA and its general desirability. 

32. On 27 August 2006 the meeting with the five employees who had not signed the agreement took place.  

33. On any view, Mr Hibberd made a remark to the effect that if the agreement was not signed, the Granada Tavern would have to be run like a concentration camp and that he would make sure that the five employees did not get any benefits such as drinks, cheaper meals and smoko breaks, which I infer were felt by him to be grounded in the AWA. 

34. In fact the evidence about who got what is equivocal.  At least one witness was of the view that non-AWA employees got discounted meals in any event. 

35. Counsel for the First and Second Respondents sought in cross‑examination to gloss over the use of this very offensive term, "concentration camp".  It was put that this was merely something designed to show in a light-hearted way that things would be different and run more, as it were, according to the letter of the law. 

36. I do not accept that assertion.  I regard the use of the phrase "running the Granada like a concentration camp" used by a man whom I infer is markedly older and certainly in a position of very considerable authority relevant to the employment of these young, and moreover casual, employees as being wholly inappropriate. 

37. Indeed there is no formal requirement for the removal of ancillary benefits such as smoking breaks and discounted meals merely because the employees concerned elected to remain on the award.  Rather, assuming these to be the terms differentiable between the AWA and the award, it might not have been unlawful for Mr Hibberd to have acted in that way. 

38. Arguably, these casual employees were engaged on a contract which by custom and practice had come to incorporate benefits which Mr Hibberd sought to remove.  Such might on one view be said to be the position at common law. 

39. It is not necessary for me to form any conclusion about that issue because it was not the footing on which the matter was argued.  I will assume for present purposes that Mr Hibberd's conduct in threatening to remove the ancillary benefits was lawful.  

40. Nonetheless, his conduct in making the remark about the concentration camp and removing benefits in my view is part of the conduct that I am required to evaluate as part of the total circumstances of the case. 

41. It is also noteworthy that on no version of the events of 27 August 2006 did Mr Hibberd ever refer to the policy alleged now to have guided his actions, that award employees could not be employed on the weekend.  Rather, I accept the evidence of Ms Wills to the effect that when Ms Ralph taxed him with the change to Ms Wills' hours, he chuckled to himself and said words to the effect, "There is no proof that Emily has had a weekend working pattern anyway," and when further taxed by Ms Wills as to "How come I have barely had a weekend off since I started working at the Granada?" replied in what I accept was, according to Ms Wills, a very cold and confident manner, "Well, we'll have to see about that then, won't we?" 

42. The overwhelming impression I get from the evidence of Ms Wills and the other witnesses called on behalf of the Applicant is that far from asserting a lawful and financially based policy, Mr Hibberd was acting in a domineering fashion suggesting that he was in a position to control the outcome of any disputation, and in a fashion that suggests he might well have been prepared not to be truthful to do so.  The use of the phrase, "There is no proof that Emily has had a weekend working pattern anyway" is plainly contrary to what was indeed the practice and, I have no doubt, goes to suggest an approach to these negotiations by Mr Hibberd that does him no credit. 

43. Following the meeting, Ms Wills and Mr Hibberd had further conversation.  The relevant part of this is that it must have been plain to Mr Hibberd that Ms Wills was not giving in and was not prepared to sign an AWA, and this would only have reinforced his view that Ms Wills was a ringleader against him. 

44. On 6 October 2006, Ms Wills met Mr Hibberd again to discuss her human resources document, but notwithstanding that that was the ostensible reason for the meeting, Mr Hibberd spent a substantial amount of time discussing the AWA. 

45. Thereafter, Mr Hibberd rang Ms Wills on a number of occasions on her mobile phone, but I find that this was not unreasonable because according to her, Ms Wills had said on 6 October 2006 that she would sign the document. 

46. While, however, it was not unreasonable for Mr Hibberd to chase the matter up, the persistence with which he did so, bearing in mind that he had never called Ms Wills on her mobile phone before, suggests that this was a matter of very considerable import to him. 

47. Although not all of the five employees had signed the AWA by that stage, no similar calls were made to them.  Likewise, they were not followed up, as was Ms Wills, on 18 October 2006 by direct personal contact from Mr Hibberd. 

48. This happened again on 21 October 2006. 

49. Against all this one comes to consider the totality of the evidence.  In my view the conduct of Mr Hibberd, and there is no issue that Mr Hibberd's conduct is relevantly for these purposes the conduct of the First Respondent also, crossed the line.  Taken as a whole, while much of it was not prima facie unlawful, it crossed the boundary from ordinary pressures of negotiation into duress.  

50. Matters that are relevant to this conclusion are:

    ·the fact that Ms Wills, albeit that she was a casual employee, did have what was plainly a regular pattern of employment with the Granada Tavern which all parties knew she wished to continue;

    ·the fact that notwithstanding the above first point, Ms Wills's position was well known by all concerned to be that of a casual employee with no security of employment;

    ·the relative youth of Ms Wills compared to the far more powerful position of authority and age reposed in Mr Hibberd;

    ·the altering of Ms Wills' prior pattern of employment which I find, while consistent with a policy of not employing award employees on the weekends, was not in fact occasioned by that reason but rather by a desire to bring pressure to bear on Ms Wills;

    ·the fact that no other employee was subject to the same treatment as Ms Wills, including Yvonne Cliff (whom I do not accept was a superior employee to Ms Wills as I do not accept that there has been any valid criticism of her as an employee);

    ·the fact that Ms Wills was perceived by Mr Hibberd and Ms Berechree to be a ringleader of opposition to the AWAs;

    ·the fact that Mr Hibberd was plainly extremely eager to have all employees sign up to AWAs at least in part because of the impending possible underpayment claims;

    ·the intensity of Mr Hibberd's attentions to Ms Wills, as expressed in the numerous and lengthy conversations he had with her, which I think went further than ordinary negotiation;

    ·the totally inappropriate use of phraseology, referring to the Granada Tavern being run as a concentration camp at the meeting on 27 August 2006. 

51. Taken together, all these factors lead me to conclude that the conduct of Mr Hibberd and the First Respondent so exceeded the bounds of conscionable conduct as to enter into that field properly described as duress. 

52. I am satisfied of all the above matters to what Ryan J in Canturi described as “the requisite degree” when referring to Briginshaw principles. 

53. Likewise I am satisfied that Ms Berechree has also stepped beyond the permissible bounds to engage in duress. 

54. I have no doubt whatever that she formed the same view as Mr Hibberd at the meeting on 7 August 2006, namely that Ms Wills was somebody who was not going to be amenable to the will of her employers and sign an AWA. 

55. The only explanation for her intervention in Ms Wills' hours of work that I am prepared to accept is that she sought to diminish Ms Wills' hours of work because she had not signed an AWA.  The terms of her conversation with Mr Taylor (see paragraph 106 above) lead inexorably to this conclusion.  Ms Berechree denied Mr Taylor’s version of the conversation, (which version I entirely accept) directly – see paragraph 5 of her affidavit.  Her untruthfulness in this regard reinforces my conclusions as to her motivation.  It seems to me more probable than otherwise that as a subordinate employee, she did this because Mr Hibberd told her to.  The contemporaneity of Ms Berechree's actions with Ms Wills' note on 20 August 2006 is too great for any other sensible conclusion. 

56. It therefore follows that the application has been made out. 

57. In making these findings I am keenly conscious that duress is not a matter lightly to be found.  Nonetheless, duress in this context is not, as I have earlier explained, to be approached in quite the fashion of the earlier authorities but rather in the context of the statute where it is found.  It is not a matter, as was the case in the earlier authorities, of undoing an act that has been impelled by the duress.  Rather, it is a matter of deciding whether the conduct of the Respondents goes so far beyond that which is otherwise proper as to constitute duress.  I think that in this matter it is clear that that was the case. 

58. The matter will be relisted for hearing as to penalty. 

59. There is one final matter with which I should deal.  Counsel for the Applicant sought at a late stage in the proceedings to advance submissions that I should draw a Jones v Dunkel (1959) 101 CLR 298 (“Jones v Dunkel”) inference arising out of the failure by the Respondent to call either Mr Hibberd or Ms Berechree for cross-examination. 

60. It is of course the case that they were not called. 

61. As was pointed out by Santow J in Australian Securities and Investment Commission v Adler and Others [2002] 168 FLR 253 at [448], where Santow J quoted Street J in Dilosa v Latec Finance Pty Ltd (No 1) (1996) 84 WN (NSW) (Pt 1) 557 at 582:

    “The inference which a court can properly draw in the absence of a witness, where such absence is not satisfactorily accounted for, is that nothing which this witness could say would assist the case of the party who would normally have been expected to have called that witness.”

1. Counsel also referred to the reference by Santow J in that paragraph to the observations of Gleeson CJ and Handley JA in SS. Pharmaceutical Co. Ltd & Another v Qantas Airways Ltd (1991) 1 Lloyd’s Rep 288 at 293 citing Insurance Commissioner v Joyce [1948] 77 CLR 39-49 per Rich J to the effect that where the defendant elects not to give evidence “the Court is entitled to be bold”.

2. Here Counsel for the Respondents submitted that there was no Jones v Dunkel point.  I do not need to traverse their submissions in detail save to say that I am far from convinced that there was not material to which all of the Respondents should more fully have replied. 

3. Nonetheless, Jones v Dunkel points are notoriously advanced far more often than they are held by courts to exist. 

4. Here, I have no doubt that the reason that the Respondents were not called to give evidence was because their counsel took the view that it was not necessary to do so.  They were content to rest their case on the evidence as it stood at the close of the Applicant’s case. 

5. As has been seen above, I have formed a contrary view, and their judgment in that regard is wrong in the sense that I have not agreed with it.  Nonetheless, that is a judgment that they were entitled to make, and not one that I would characterise as capricious. 

6. I have noted earlier the references to cross-examination of Ms Wills which have foreshadowed or, at least inferentially foreshadowed, calling of evidence from Ms Bauld. 

7. While the failure to call such evidence might be said on one view to lead to an inference that the Respondents were simply either not able to produce such evidence or that the witness or witnesses to whom reference might have been inferred to have been made would not have assisted their case, in my view the circumstances are not sufficient to give rise to a Jones v Dunkel inference. 

8. Rather however I would only say that a party who elects not to call evidence when it is plainly open to them to do so runs the risk that the Court, as must necessarily be the case, only has the benefit of seeing the witnesses called by one party. 

9. In this case I found the witnesses called by the Applicant, and in particular Ms Wills, impressive and I have, to the extent and for the reasons already given, accepted their evidence. 

10. That is obviously a risk that any Respondent takes if it elects not to call evidence. It does not however in my view go so far as to ground a Jones v Dunkel inference and I have not proceeded on that basis. 

I certify that the preceding three hundred and fourteen (314) paragraphs are a true copy of the reasons for judgment of Burchardt FM

Associate:  Brooke Evans

Date:  19 June 2007