Transport Workers' Union of Australia v Premier Motor Service Pty Ltd
[2014] FCCA 9
•21 March 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| TRANSPORT WORKERS’ UNION OF AUSTRALIA v PREMIER MOTOR SERVICE PTY LTD | [2014] FCCA 9 |
| Catchwords: INDUSTRIAL LAW – Adverse action claimed as a result of industrial action – change in rostering arrangements – consideration of the reason for the change. |
| Legislation: Fair Work Act 2009 (Cth), ss.342, 346, 347, 360, 361, 409, 437, 539, 546 |
| Australian Licensed Aircraft Engineers Association v Sunstate Airlines (Qld) Pty Ltd (2012) 208 FCR 386 Australian Licensed Aircraft Engineers Association v International Aviation Service Assistance Pty Ltd (2011) 193 FCR 526 Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 290 ALR 647 Canturi v Sita Coaches Pty Ltd (2002) 116 FCR 276 Commonwealth Bank of Australia v Finance Sector Union (2007) 157 FCR 329 |
| Applicant: | TRANSPORT WORKERS’ UNION OF AUSTRALIA |
| Respondent: | PREMIER MOTOR SERVICE PTY LTD |
| File Number: | SYG 3011 of 2012 |
| Judgment of: | Judge Driver |
| Hearing date: | 12 November 2013 |
| Date of Last Submission: | 30 January 2014 |
| Delivered at: | Sydney |
| Delivered on: | 21 March 2014 |
REPRESENTATION
| Counsel for the Applicant: | Mr M Gibian |
| Solicitors for the Applicant: | TWU Legal Department |
| Counsel for the Respondent: | Mr P King |
| Solicitors for the Respondent: | Australian Public Transport Industrial Association |
ORDERS
The application filed on 17 December 2012 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3011 of 2012
| TRANSPORT WORKERS’ UNION OF AUSTRALIA |
Applicant
And
| PREMIER MOTOR SERVICE PTY LTD |
Respondent
REASONS FOR JUDGMENT
Introduction and background
By application filed on 17 December 2012, the applicant (TWU) seeks relief for alleged contraventions of s.346 of the Fair Work Act 2009 (Cth) (Fair Work Act). The TWU alleges that the respondent (Premier) took adverse action against its members (in particular Mr David Cole) because they were members of the TWU and engaged, or proposed to engage, in industrial activity. This is said to be contrary to s.346(b) of the Fair Work Act.
The application is opposed by Premier on the bases that there was no adverse action within the meaning of s.342 of the Fair Work Act, that in any event there is no causal link between Mr Cole’s union activities and the adverse action complained of, and that there was no industrial activity for the purposes of s.347.
The background to the proceedings is relatively straightforward. The TWU is an organisation of employees registered under the Fair Work (Registered Organisations) Act2009 (Cth) and is an “industrial association” for the purposes of that Act. The TWU is able to bring an application alleging a contravention of s.346 affecting an employee that is entitled to be represented by the union by reason of Item 11 of the table set out in s.539(2) of the Fair Work Act.
Premier operates bus and coach services across the eastern seaboard, including bus operations in or around Wollongong under the business name Premier Illawarra. Mr Cole has been employed by Premier and been a member of the TWU for approximately 25 years[1]. For the past 10 years, Mr Cole has been the delegate of the TWU at Premier’s yard located at Unanderra[2].
[1] Affidavit of Cole sworn 2 April 2013, [1]-[2].
[2] Affidavit of Cole sworn 2 April 2013, [3].
Premier operates both regular and school bus run services (which constitute 95 per cent of its business) as well as occasional coach charter services generally for tourist operators. From time to time, Premier offers drivers charter work. Charter work provides additional income for Premier and provides a change from regular runs for drivers. Charter work may require drivers to work additional hours and may therefore give drivers additional earnings[3].
[3] Affidavit of Cole sworn 2 April 2013, [5]-[8]; Affidavit of Munn affirmed 4 April 2013, [10]-[11].
With respect to the regular bus services, drivers work in accordance with a roster system. A driver is allocated to a particular roster number which comprises a set series of bus routes required to be undertaken by the driver. The evidence indicates that drivers generally remain rostered on their designated routes for long periods of time[4].
[4] Affidavit of Cole sworn 2 April 2013, [9]-[10].
A system had developed whereby, when a roster becomes free (for example, as a result of a driver leaving the company), other drivers had the opportunity to put their name forward to take over the roster. Drivers were aware of vacant rosters by checking a “roster sheet”. The “roster sheet” was placed on a wall in the yard and set out all the vacant rosters and contained a field for drivers to express an interest by signing their name against the vacant roster[5].
[5] Affidavit of Cole sworn 2 April 2013, [13]; Affidavit of Munn affirmed 4 April 2013, [13]; Affidavit of Anthony Johnson sworn 2 April 2013, [8]-[9].
Under the former system of operation, vacant rosters were allocated by using a “seniority list” which recorded the names of drivers in order of seniority corresponding with length of service[6]. The “seniority list” was also displayed on the wall in the yard adjacent to the “roster sheet”. Premier removed the “seniority list” from display several years ago, but continued to, in a less systematic way, allocate rosters on the basis of seniority[7].
[6] Affidavit of Cole sworn 2 April 2013, [14]-[15].
[7] Affidavit of Cole sworn 2 April 2013, [16]-[17].
Employees of Premier are and were at all material times covered by an enterprise agreement known as the Premier Motor Service Pty Ltd and Transport Workers’ Union of Australia Fair Work Agreement 2010 (2010 Agreement). That Agreement applies (relevantly) to persons employed wholly or principally as bus drivers or conductors[8]. The nominal expiry of the Agreement was 30 June 2012[9]. The 2010 Agreement continues in operation by operation of s.54 of the Fair Work Act.
[8] Premier Motor Service Pty Ltd and Transport Workers’ Union of Australia Fair Work Agreement 2010, clause 4(a).
[9] Premier Motor Service Pty Ltd and Transport Workers’ Union of Australia Fair Work Agreement 2010, clause 3(b).
The pleadings and evidence
The TWU relies upon its application and Form 4 claim under the Fair Work Act (as corrected at the trial on 12 November 2013) and the following affidavits:
a)the affidavit of Mr Anthony Johnson made on 2 April 2013;
b)the affidavit of Mr Trevor Munn made on 2 April 2013;
c)the affidavits of Mr David Cole made on 2 April 2013 and 8 May 2013.
Premier relies upon its response filed on 19 March 2013 and the following affidavits:
a)the affidavits of Mr Mark Powell made on 23 April 2013 and 5 November 2013; and
b)the affidavit of Mr John King made on 19 April 2013.
I also received the following exhibits and other documents marked for identification:
·A1 – decision of Fair Work Australia, 11.03.2011;
·A2 – “Petition” Form, TWU;
·MFI A3 – Orders sought by TWU;
·A4 – TWU Bus Industry update;
·A5 – Employer’s Response to Application for Fair Work Australia to deal with General Protection Dispute;
·R1 – Premier Illawarra Charter Form Driver’s Instructions;
·MFI R2 – Kiama Coachlines Tax Invoice;
·R3 – Letter from TWU to Mr Ian McDonald, National Industrial Relations Manager;
·R4 – Premier Illawarra Permanent Drivers Seniority List;
·R5 – Application for Fair Work Australia to Deal with General Protections Dispute;
·R6 – Bundle of sick leave records;
·R7 – Daily Roster List;
·R8 – Sick List.
The parties made both oral and written submissions, including submissions after the trial.
Consideration
Premier, in its post hearing submissions, raised technical objections to the form of the TWU’s application (including whether the TWU is really the applicant) and to amendments to the supporting Form 4 to introduce the issue of seniority. I reject those objections. I have no doubt that the TWU is the applicant, rather than any individual, and I gave leave for the amendments sought to be made to the Form 4. I do not consider that Premier has been prejudiced by those amendments, and neither did they necessitate delay or prolong the proceedings.
The legislation
The Fair Work Act prohibits an employer taking adverse action against an employee because of any reason proscribed in the Fair Work Act. Relevantly, s.346 provides:
Protection
A person must not take adverse action against another person because the other person:
(a) is or is not, or was or was not, an officer or member of an industrial association; or
(b) engages, or has at any time engaged or proposed to engage, in industrial activity within the meaning of paragraph 347(a) or (b); or
(c) does not engage, or has at any time not engaged or proposed to not engage, in industrial activity within the meaning of paragraphs 347(c) to (g).
The concept of an “industrial activity” is defined in s.347 of the Fair Work Act as follows:
Meaning of engages in industrial activity
A person engages in industrial activity if the person:
(a) becomes or does not become, or remains or ceases to be, an officer or member of an industrial association; or
(b) does, or does not:
(i) become involved in establishing an industrial association; or
(ii) organise or promote a lawful activity for, or on behalf of, an industrial association; or
(iii) encourage, or participate in, a lawful activity organised or promoted by an industrial association; or
(iv) comply with a lawful request made by, or requirement of, an industrial association; or
(v) represent or advance the views, claims or interests of an industrial association; or
(vi) pay a fee (however described) to an industrial association, or to someone in lieu of an industrial association; or
(vii) seek to be represented by an industrial association; or
(c) organises or promotes an unlawful activity for, or on behalf of, an industrial association; or
(d) encourages, or participates in, an unlawful activity organised or promoted by an industrial association; or
(e) complies with an unlawful request made by, or requirement of, an industrial association; or
(f) takes part in industrial action; or
(g) makes a payment:
(i) that, because of Division 9 of Part 3 3 (which deals with payments relating to periods of industrial action), an employer must not pay; or
(ii) to which an employee is not entitled because of that Division.
Section 346(b) provides protection for employees (relevantly) who engage in industrial activities as described in s.347(a) and s.347(b).
Where it is alleged that adverse action has been taken against a person contrary to s.346, it is necessary to consider the reason why the action was taken by the employer. In that context, s.360 of the Fair Work Act provides:
360 Multiple reasons for action
For the purposes of this Part, a person takes action for a particular reason if the reasons for the action include that reason.
A reserve onus provision also applies
361 Reason for action to be presumed unless proved otherwise
(1) If:
(a) in an application in relation to a contravention of this Part, it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and
(b) taking that action for that reason or with that intent would constitute a contravention of this Part;
it is presumed, in proceedings arising from the application, that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise.
(2) Subsection (1) does not apply in relation to orders for an interim injunction.
The concept of “adverse action” is defined in s.342. An employer takes adverse action against an employee if[10]:
[10] Section 342(1) (Item 1).
the employer:
(a) dismisses the employee; or
(b) injures the employee in his or her employment; or
(c) alters the position of the employee to the employee's prejudice; or
(d) discriminates between the employee and other employees of the employer.
Section 346 is a civil remedy provision under Part 4-1 of the Fair Work Act. The maximum penalty for a contravention is 300 penalty units for a corporation or $33,000[11].
[11] see s.539(2) (Item 11) and s.546(2)(b).
In the middle of 2012, bargaining was taking place involving the TWU (representing bus drivers) and Bus NSW (representing bus operators) for the purpose of making new industrial agreements which might include a replacement for the 2010 Agreement. As has been mentioned, the 2010 Agreement had a nominal expiry date of 30 June 2012[12].
[12] Premier Motor Service Pty Ltd and Transport Workers’ Union of Australia Fair Work Agreement 2010, clause 3(b).
After the nominal expiry of an existing agreement, employees are able to lawfully take protected industrial action (relevantly) in the form of “employee claim action” being industrial action that is “organised or engaged in for the purpose of supporting or advancing claims in relation to [a proposed] enterprise agreement”[13]. The process of taking protected industrial action commences with undertaking a “protected action ballot” being a ballot of employees who will be covered by the proposed agreement[14].
The conduct
[13] Fair Work Act, s.409(1).
[14] Fair Work Act, s.437(5).
Industrial activity
Mr Cole claims that he circulated a petition at the request of the TWU[15]. The TWU, when called upon to produce the petition, was unable to do so, but produced a pro-forma document which became Exhibit A2. That document is not a petition. It is simply a form upon which members of the TWU at a workplace can identify themselves and provide their contact details. The apparent purpose of the form is to identify union members at a workplace to facilitate the possible future conduct of a protected action ballot by the Australian Electoral Commission (AEC). I accept that Mr Cole circulated a document in the form of Exhibit A2 at the request of the TWU in order to collect the names and contact details of TWU members for possible future submission to the AEC. Mr Cole understood that the purpose of circulating the form was to check contact details for members and to promote the taking of protected industrial action[16]. Mr Cole apparently saw a broader purpose, that being to promote the TWU's campaign to members of the TWU at the Unanderra depot[17]. In those circumstances, while the link between the form and industrial action resided substantially in the mind of Mr Cole, the conduct of Mr Cole in circulating the form was a preliminary step which might ultimately lead to protected industrial action and hence related to taking protected industrial action. I accept that, on a broad view, this action constituted engaging in an “industrial activity” at least in that it constituted conduct to (for the purposes of s.347(b)(ii), (iii), (iv) and (v)):
(ii) organise or promote a lawful activity for, or on behalf of, an industrial association;
(iii) encourage, or participate in, a lawful activity organised or promoted by an industrial association;
(iv) comply with a lawful request made by, or requirement of, an industrial association;
(v) represent or advance the views, claims or interests of an industrial association.
[15] Affidavit of Cole sworn 2 April 2013, [21] and [23].
[16] Affidavit of Cole sworn 2 April 2013, [20]-[23], Exhibit A2.
[17] Affidavit of Cole sworn 2 April 2013, [22].
The document also related in a general way to consideration of taking protected industrial action for the purposes of the Fair Work Act. That conduct involved “proposing to engage” in an industrial activity for the purposes of s.346(b) because it involved the contemplation of possible future lawful activity organised or promoted by an industrial association[18] and representing or advancing the views, claims or interests of an industrial association[19]. I accept that members of the TWU were entitled to take lawful protected industrial action under Part 3-3 of the Fair Work Act, namely, in the form of “employee claim action” in support of claims for the making of a new enterprise agreement with Premier. Such action, if taken at the time the form was circulated, would have been premature, because at that time, negotiations were underway at the industry level. Negotiations had not commenced at the enterprise level. The TWU was, however, entitled to identify who its members were in the expectation that bargaining at the enterprise level would be required and protected industrial action in support of that bargaining might become necessary.
[18] Section 347(b)(iii).
[19] Section 347(b)(v).
Adverse action
The TWU asserts that Mr Cole was removed from charter work between 10 and 15 August 2012 which constituted “adverse action” for the purposes of s.342 in that it either injured Mr Cole in his employment or it altered the position of Mr Cole in his employment to his prejudice. The TWU also complains about the removal of the roster sheet at the same time which is said to have the effect of denying drivers the opportunity to become aware of and put their names forward for vacant shifts that are more attractive or amenable to them.
Whether particular action alters an employee's position to his or her prejudice depends on a comparison between the employee's position before and after the action is taken[20]. I accept that it may constitute an “injury” in employment to allocate an employee less congenial shifts or rosters[21].
[20] Commonwealth Bank of Australia v Finance Sector Union (2007) 157 FCR 329 at [127]; Construction, Forestry, Mining and Energy Union v Pilbara Iron Company (Services) Pty Ltd (No 3) [2012] FCA 697 at [49].
[21] Independent Education Union of Australia v Canonical Administrators (1998) 87 FCR 49 at 68.
I also accept that charter work is attractive for at least some drivers as it provides a break for their usual routine runs and provides the potential to earn additional income. Mr Cole gave evidence that he enjoys undertaking charter work and accepts such work if offered[22]. The TWU claims that withdrawal of the opportunity to perform charter work between 10 and 15 August 2012 constituted an injury to Mr Cole in his employment and an alteration to his position as an employee to his prejudice for the purposes of s.342 of the Fair Work Act. Mr Cole was also allegedly denied the opportunity to earn some additional income on those days.
[22] Affidavit of Cole sworn 2 April 2013, [8].
Premier denies that there was any such adverse action on the basis that no charter work was allocated to Mr Cole. While conceding that Mr Cole was asked whether he would be available to do a charter run, it contends that the run was not allocated for operational reasons.
“Adverse action”, for the purposes of s.342 of the Fair Work Act, includes conduct that “injures the employees in his or her employment” or “alters the position of the employee to the employee’s prejudice”[23]. There is no doubt that an employee may be injured in their employment or their position be altered in a prejudicial manner whether or not a legal right (contractual or otherwise) is lost or infringed. In Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (No.3)[24], the High Court said (at [4]) that the concept of altering the position of an employee to their prejudice:
... is a broad additional category which covers not only legal injury but any adverse affection of, or deterioration in, the advantages enjoyed by the employee before the conduct in question.
[23] Section 342(1), Item 1(b) and (c).
[24] (1998) 195 CLR 1.
This approach has been applied in numerous subsequent cases, some of which are referred to in the TWU’s written submissions[25]. Some examples of cases demonstrating the proposition include:
a)in Australasian Meat Industry Employees’ Union v Belandra Pty Ltd[26], North J held that the disappointment of an expectation of re-employment, even where there was no legal right to re-employment, was an alteration of an employee’s position to his prejudice;
b)in Australian Licensed Aircraft Engineers Association v International Aviation Service Assistance Pty Ltd[27], Barker J held that a negative assessment of an aircraft engineer constituted adverse action because it caused his employment to be less secure and may have had future effects upon his employment;
c)in Qantas Airways Limited v Australian Licensed Aircraft Engineers Association[28], the Full Federal Court held that the suspension of consideration of an employee for overseas postings constituted adverse action even though there was no legal right to be posted overseas;
d)in Construction, Forestry, Mining & Energy Union v Pilbara Iron Company (Services) Pty Ltd (No.3)[29], Katzmann J held that a performance review constituted adverse action even though it had no immediate effect upon the individual’s employment at all because it might be taken into account in future employment decisions.
[25] TWU’s outline of submissions, [21]-[22].
[26] (2003) 126 IR 165 at [68]-[71].
[27] (2011) 193 FCR 526 at [298]–[300].
[28] [2012] FCAFC 63 at [30]-[40].
[29] [2013] FCA 697 at [47]-[53].
As noted in the TWU’s initial written submissions, the allocation of less congenial shifts or rosters or affording fewer opportunities for overtime can constitute an injury in employment[30]. Although in a slightly different statutory context, in Canturi v Sita Coaches Pty Ltd[31], Ryan J found that the withdrawal of tourist work for two bus drivers and a direction that they undertake route work amounted to “duress” in connection with the making of an Australian Workplace Agreement (AWA)[32].
[30] Independent Education Union of Australia v Canonical Administrators (1998) 87 FCR 49 at 68
[31] (2002) 116 FCR 276.
[32] Canturi v Sita Coaches Pty Ltd (2002) 116 FCR 276 was the decision referred to by counsel for the TWU in oral submissions: Transcript 12/11/13, page 166, lines 20-27.
There is no dispute on the evidence that:
a)Mr Cole, and probably other drivers at the depot, found charter work to be attractive and more pleasant than usual route work and that it provided the chance to earn additional income;
b)Mr Cole was at the very least offered the chance to undertake charter work between 10-15 August 2012 by Mr Powell of Premier; and
c)Mr Powell informed Mr Cole on or about 9 August 2012 that he would not be undertaking the charter work.
The question is whether the withdrawal of the opportunity to undertake the charter work was an injury to Mr Cole in his employment and/or a prejudicial alteration to his position in his employment? If it was and if that decision was made for a proscribed reason or for reasons that included a proscribed reason, there was a contravention of the general protections provisions of the Fair Work Act.
Premier places substantial reliance upon the assertion that there was no final allocation or rostering of Mr Cole to undertake the charter work[33]. It is said this only occurred upon a driver receiving a “Charter Form Driver’s Instructions”[34]. The TWU complains that that submission does not address its case. The TWU asserts that if (as is not disputed) Mr Cole was offered the opportunity to undertake charter work and the offer was withdrawn for a proscribed reason, then a contravention of the Fair Work Act has occurred. That is said to be so whether or not there was a 100 per cent guarantee that Mr Cole would undertake the work or whether the change of duties was noted on a roster document.
[33] TWU’s outline of submissions, [40]-[43], [48] and [59].
[34] Exhibit R1.
The evidence demonstrates that, in accordance with usual practice, Mr Cole was asked on either 6 or 7 August 2012 whether he would be available to undertake charter work between 10 and 15 August 2012. Mr Cole’s recollection of the conversation was that Mr Powell said words to the effect of[35]:
I’ve got a three day charter down to the snow, you’ll be travelling with Jason [Carruthers] its on 13, 14 and 15 August 2012, are you happy to take that?
[35] Affidavit of Cole sworn 2 April 2013, [24].
Mr Powell’s recollection was that he asked whether Mr Cole was either “interested” or “available”. In cross-examination, neither was clear of the precise words used. It is fair to say, however, that both believed that Mr Cole would be undertaking the charter work at the conclusion of the conversation.
Whatever precise words were used, an arrangement was made whereby Mr Cole was expected to be available for and himself expected to perform the charter work. The proposition advanced by Premier[36] that Mr Cole had no “legitimate expectation” of undertaking the roster is no doubt correct in law in that Mr Cole had no legal right that he could enforce. However, Mr Cole was invited to and did make himself available to perform the work on 6 or 7 August 2012. Mr Cole recorded the job in his diary[37] and made personal arrangements to be away from home for two nights. No further contact was made with him in relation to the charter work for several days. As Mr Powell accepted in cross-examination, if he had not later told Mr Cole that he would not be undertaking charter work, Mr Cole would have attended work on 10 August 2012 expecting to perform that work[38].
[36] TWU’s outline of submissions, [59] and [73].
[37] Affidavit of Cole sworn 2 April 2013, annexure DC1.
[38] Transcript 12/11/13, page 127, lines 8-10.
Mr Powell described the decision to remove Mr Cole from the charter work as a decision to “reallocate” Mr Cole “to his usual weekly shift”[39]. Mr Powell accepted that Mr Cole had “expectations of going”[40] and that is why he contacted Mr Cole at approximately 5.00pm on the afternoon of 9 August 2012 to tell him that he would not be undertaking the charter work. Mr Powell understood that at least a preliminary arrangement had been made for Mr Cole to perform the charter work that was changed on 9 August 2012. That decision might well have constituted an injury to Mr Cole in his employment and/or a prejudicial alteration to Mr Cole’s position in his employment if the charter work had been allocated to another driver employed by Premier in preference to Mr Cole.
[39] Affidavit of Cole sworn 5 November 2013, [6].
[40] Transcript 12/11/13, page 127, line 23.
However, the charter work in issue ceased to exist as work at Premier because of an operational decision to subcontract that work to another provider. The operational reason was said to be a shortage of available drivers and a need to ensure that Premier could cover its regular runs which constituted over 90 per cent of its business. The TWU contested the credibility of that evidence but that challenge itself lacks credibility. The fact is that Premier lost income by subcontracting the charter work. It is highly improbable that Premier would turn away work if it had drivers available to do it. The decision to subcontract the work may have been excessively cautious but it is not credible that it was a decision to withdraw the work specifically from Mr Cole.
The TWU made much of an alteration which was made to the rosters to reflect the preliminary arrangement that had been made for Mr Cole to perform the charter work. Mr Cole’s name was struck out on the office roster sheet for 10 August 2012[41]. As Mr Powell explained in cross-examination, that indicates that Mr Cole was not expected to be performing his usual route shift[42]. The documentation supports the evidence of Mr Cole and Mr Powell that (in the time between the two conversations) they both understood that Mr Cole would be undertaking charter work unless he was instructed otherwise. The fact is that Mr Cole was instructed otherwise. No “Charter Form Driver’s Instructions”[43] was placed in Mr Cole’s pigeon hole[44]. That would have been a necessary confirmation of the allocation of the work. It is unsurprising it was not done. A decision was made that Premier would not undertake the work. Mr Cole was no doubt disappointed. He suspected foul play because he had been criticised for circulating the document in the form of Exhibit A2. However, his injury was merely his disappointment and the disruption to his personal life. The work was not taken from the employee. It was declined by the employer as a business decision.
[41] Exhibit R7 – Daily Roster for 10/08/12.
[42] Transcript 12/11/13, page 111, lines 10-13.
[43] Exhibit R1.
[44] TWU’s outline of submissions, [41].
The TWU contends that the removal of the vacant roster sheet from the wall in the yard also constituted an injury to members of the TWU in their employment and an alteration in their position as employees to their prejudice. As I have noted, the roster sheet provided an opportunity for drivers to become aware of vacant shifts and express an interest in taking over a shift if the driver considered the shift more amenable or attractive. The TWU contends that the removal of the roster sheet denied drivers that opportunity and constituted adverse action against the members of the TWU generally at the Unanderra site. Premier disputes that the removal of the roster sheet constituted adverse action. It contends that the removal of the roster sheet did not affect the ability of employees to express interest in vacant rosters and was consistent with the view of management that vacant rosters should not be allocated strictly on the basis of seniority.
As has been discussed, whether there has been an injury to employees in their employment or a prejudicial alteration to their position involves a comparison between the position of the employees before and after an action is taken[45]. Any adverse affection of, or deterioration in, the advantages enjoyed by the employees before the conduct in question will constitute adverse action[46].
[45] Commonwealth Bank of Australia v Finance Sector Union (2007) 157 FCR 329 at [127]; Construction, Forestry, Mining and Energy Union v Pilbara Iron Company (Services) Pty Ltd (No.3) [2012] FCA 697 at [49].
[46] Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (No.3) (1998) 195 CLR 1 at [4].
The undisputed evidence was that vacant permanent rosters were allocated on the basis of seniority for many years. Mr Powell, for example, accepted in his evidence that the seniority system applied strictly from at least 1983 until at least 2011[47]. Mr King understood that the seniority system applied until August 2012[48]. The system operated by use of a roster sheet which permitted drivers to express interest in vacant rosters which were more attractive. It is also undisputed that, even if a strict seniority system was not in place, the vacant roster sheet system continued until it was removed in early August 2012[49]. I also accept that seniority remained a significant factor in allocating rosters up to August 2012. At its highest, Premier suggested that seniority was given “lesser emphasis” after 2011[50].
[47] Transcript 12/11/13, page 105, line 25 to page 106 line 8.
[48] Transcript 12/11/13, page 154, line 35.
[49] Transcript 12/11/13, page 106, line 34.
[50] Affidavit of Powell sworn 23 April 2013, [26].
Although the TWU claimed otherwise, the removal of the roster sheet did not destroy the capacity of drivers to be informed of the existence of a vacant roster and to have the opportunity to express an interest in taking over the roster the driver considered to be more amenable or attractive (in type of work, hours or duration). Neither did the removal of the roster sheet system prevent seniority being given any weight in the allocation of rosters. Drivers would become aware of a vacant roster when a driver’s employment ceased. Drivers were not prevented from expressing an interest in a vacant roster. In both respects, the removal of the roster sheet system simply required drivers to be more proactive in seeking to take over a vacant roster. In my view, this was not adverse action for the purposes of s.342 of the Fair Work Act.
The TWU complains that no evidence was advanced by Premier as to any reason why the vacant roster sheet facility was removed in August 2012. I disagree. It was tolerably clear from the evidence of Mr King that he was opposed to the use of seniority as the sole or dominant criterion for the allocation of vacant rosters and was concerned that the vacant roster sheet system was a hangover from the past. The timing of the removal of the sheet is curious but in the absence of an injury to Mr Cole, the timing is not relevant.
Reason for conduct - has the reverse onus been discharged?
As I have found that the failure to allocate the charter work to Mr Cole and the removal of the vacant roster sheet was not adverse action directed to him, it is strictly unnecessary to consider further the reasons for that conduct. However, I do consider that issue below in case I am wrong in relation to the absence of adverse action for the purposes of s.342 of the Fair Work Act.
Section 346 prohibits the taking of “adverse action” because (relevantly) a person engaged in or proposed to engage in relevant industrial activity. The section must be understood in light of the recent judgment of the High Court in Board of Bendigo Regional Institute of Technical and Further Education v Barclay[51] and in observations made by Gibbs J and Mason J in General Motors-Holden's Pty Ltd v Bowling[52] concerning the effect of an analogue in earlier industrial legislation[53].
[51] (2012) 290 ALR 647.
[52] (1976) 12 ALR 605.
[53] see, for example, Australian Licensed Aircraft Engineers Association v Sunstate Airlines (Qld) Pty Ltd (2012) 208 FCR 386 at [45]; National Tertiary Education Union v Royal Melbourne Institute of Technology [2013] FCA 451 at [19]-[23].
In Barclay, for example, Gummow and Hayne JJ said[54]:
In light of the legislative history of s 346 and the intention of Parliament outlined above, the reasoning of Mason J in Bowling is to be applied to s 346. An employer contravenes s 346 if it can be said that engagement by the employee in an industrial activity comprised “a substantial and operative” reason, or reasons including the reason, for the employer's action and that this action constitutes an “adverse action” within the meaning of s 342.(emphasis added)
[54] at [104].
It is important to remember the effect of ss.360 and 361. Section 360 makes clear that there may be multiple reasons for action being taken. Section 361 imposes an onus upon Premier to demonstrate that the action was not taken for a reason or reasons that included those proscribed by the Fair Work Act. The “plain purpose of the provision [is to throw] on to the defendant the onus of proving that which lies peculiarly within his own knowledge”[55].
[55] Barclay at [50] citing the judgment of Mason J in General Motors-Holden's Pty Ltd v Bowling at 617.
In Barclay, French CJ and Crennan J said, with respect to the reasons for particular conduct[56]:
This question is one of fact, which must be answered in the light of all the facts established in the proceeding. Generally, it will be extremely difficult to displace the statutory presumption in s 361 if no direct testimony is given by the decision-maker acting on behalf of the employer. Direct evidence of the reason why a decision-maker took adverse action, which may include positive evidence that the action was not taken for a prohibited reason, may be unreliable because of other contradictory evidence given by the decision-maker or because other objective facts are proven which contradict the decision-maker's evidence. However, direct testimony from the decision-maker which is accepted as reliable is capable of discharging the burden upon an employer even though an employee may be an officer or member of an industrial association and engage in industrial activity. (emphasis added)
[56] at [45].
In General Motors-Holden's Pty Ltd v Bowling, Mason J made clear that the applicant has no obligation to establish, through its own evidence, that one of the reasons an action was taken against an employee was a reason prohibited by the Fair Work Act. His Honour said[57]:
Section 5(4) imposed the onus on the [employer] of establishing affirmatively that it was not actuated by the reason alleged in the charge. The consequence was that the [employee], in order to succeed, was not bound to adduce evidence that the [employer] was actuated by that reason, a matter peculiarly within the knowledge of the [employer]. The [employee] was entitled to succeed if the evidence was consistent with the hypothesis that the [employer] was so actuated and that hypothesis was not displaced by the [employer]. To hold that, despite the subsection, there is some requirement that the prosecutor brings evidence of this fact is to make an implication which, in my view, is unwarranted and which is at variance with the plain purpose of the provision in throwing on to the [employer] the onus of proving that which lies peculiarly within his own knowledge (emphasis added)
[57] at 617.
Mason J[58] focused upon whether, on the evidence put forward by the employer, the reasons for the dismissal (in that case) were dissociated from the circumstance that the respondent in that case was a shop steward. (emphasis added)
[58] also at 617-618.
In National Tertiary Education Union v Royal Melbourne Institute of Technology[59], Gray J commented on the approach of the High Court in Barclay as follows[60]:
Although their Honours appear to focus on the ascertainment of the reason why adverse action was taken, it is clear from the passage as a whole that this was not intended to shift the focus from the question posed by the Fair Work Act itself. A party seeking to rebut the presumption created by s 361 of the Fair Work Act that the action was taken for the reason, or with the intent, alleged by the opposite party, must grapple with the establishment of the negative proposition that the action was not taken for the alleged reason or with the alleged intent. Further, s 360 of the Fair Work Act recognises expressly that action may be taken for more than one reason. What the party seeking to rebut the presumption must do is to establish on the balance of probabilities that the alleged improper reason was not a reason for the taking of action. Generally (although as a matter of logic, not necessarily) the evidence as to the state of mind of the decision-maker or decision-makers will include evidence as to what are claimed to be the actual reasons for the decision. Even if the reasons advanced as actual reasons for the decision are accepted as such, the absence of evidence that there were no additional reasons, or that the actual reasons did not include the alleged proscribed reasons, will usually result in a failure to rebut the presumption. (emphasis added)
[59] [2013] FCA 451.
[60] at [20].
Ultimately, the question presented in this case is whether, if adverse action had been proved on the evidence as a whole, Premier has demonstrated that the reasons for Mr Cole being removed from the charter work between 12 and 15 August 2012 and the removal of the roster sheets were dissociated from and did not include that Mr Cole had engaged in an industrial activity by distributing the form to check contact details of members and encouraging members to support possible protected industrial action and that the members of the TWU were contemplating taking protected industrial action.
Reason for conduct - removal from charters
It is convenient to first deal with the removal of the charter work from Mr Cole on 9 August 2012. The finding the Court must make is one of fact. There are five aspects of the evidence that require particular consideration. First, the objective evidence indicates that Mr Powell and Mr King were made aware that Mr Cole had circulated the TWU form and was encouraging drivers to support protected industrial action shortly prior to the charter work being removed.
The existence of negotiations at the industry level from May 2012 was well known to all the witnesses. Mr Cole told Mr Powell on 7 August 2012 that he was circulating a “petition” in relation to protected industrial action[61]. This was not denied by Mr Powell. Mr King gave evidence that he became aware “around 10 August 2012” that Mr Cole had sought to generate “interest amongst the drivers to undertake a protected action ballot”[62]. However, Mr Powell gives evidence on telling Mr Cole on 9 August 2012 that “Kingy is not happy about the petition and that you are causing trouble”[63]. Self-evidently, Mr King was aware of Mr Cole's action on or before 9 August 2012.
[61] Affidavit of Cole sworn 2 April 2013, [28].
[62] Affidavit of King sworn 19 April 2013, [4].
[63] Affidavit of Powell affirmed 23 April 2013, [15].
Mr King and Mr Powell also had reason to have serious concerns about the prospect of drivers taking protected industrial action and to take action to discourage the taking or encouragement of industrial action. Mr King says that industrial action would “have significantly impacted upon the ability of the business to meet its contractual obligation”[64]. Industrial action would also have the effect of causing inconvenience to passengers, damage to Premier’s reputation and loss of revenue.
[64] Affidavit of Cole sworn 19 April 2013, [5].
The evidence of Mr Cole includes evidence that he was told that he was being removed from undertaking the charter work because Mr King was not happy about the petition and that Mr Cole was “causing trouble”. Mr Cole's evidence is that he was called on the afternoon of 9 August 2012 and told by Mr Powell[65]:
Kingy is not happy about the petition and that you are causing trouble. You won't be doing the charters because Kingy's not happy and I'm giving it to a bloke from Nowra and a bloke from Kiama because I have blokes in those yards to do work and they will do it from now on if you're going to continue to cause trouble.
[65] Affidavit of Cole sworn 2 April 2013, [29].
There is obviously a difference between the evidence of Mr Cole and Mr Powell in relation to this conversation. In assessing the competing evidence I take into account the following:
a)Mr Cole's evidence has been consistent from the outset of the proceedings and was not significantly undermined in cross‑examination. Mr Cole was an honest witness although his recall was imperfect. The same account of events appears in the application to Fair Work Australia in September 2012, application to this Court in December 2012 and in Mr Cole's affidavit and oral evidence;
b)in contrast, Mr Powell has not told a consistent story. In his first affidavit, Mr Powell admits to saying to Mr Cole words to the effect of: “Kingy is not happy about the petition and that you are causing trouble.” Mr Powell says he then went on to tell Mr Cole that he would not doing be the charters in the course of the same conversation[66];
c)in his supplementary affidavit, Mr Powell says the first part of the conversation occurred face-to-face at the depot at 5.45am in the morning of 9 August 2012 and the second part in a telephone conversation in the afternoon of the same day[67]. Mr Powell's recollection was also shown to be imperfect under cross‑examination;
d)Mr Powell's second version makes less sense than his first. Mr Powell had earlier said that he arranged for the charters to be undertaken by Nowra Coaches on 8 August 2012[68]. Mr Powell was aware he needed to tell Mr Cole he was no longer undertaking the charter work. Yet, Mr Powell says in his revised evidence he had a conversation with Mr Cole on the morning of 9 August without telling him he was not to be undertaking the charter work;
e)Mr Powell has also given inconsistent evidence as to when the decision was made to subcontract the charter work. In his second affidavit, Mr Powell says that he made the decision during the day on 9 August 2012[69]. In his first affidavit, he says that he had already arranged for the charter on 10 August to be undertaken by Nowra Coaches on 8 August 2012[70].
[66] Affidavit of Powell affirmed 23 April 2013, [15] and [16].
[67] Affidavit of Powell sworn 5 November 2013, [12]-[4].
[68] Affidavit of Powell affirmed 23 April 2013, [21].
[69] Affidavit of Powell sworn 5 November 2013, [5].
[70] Affidavit of Powell affirmed 23 April 2013, [21].
For these reasons, I agree with the TWU’s submission that the evidence of Mr Powell could not be preferred to the evidence of Mr Cole as to the content of their conversations, particularly taking into account that Premier bears the onus of demonstrating that the reasons for the removal of the charter work were dissociated from the conduct of Mr Cole in promoting protected industrial action.
While the evidence put forward by Premier to establish an alternative reason for the conduct is persuasive in terms of the real reason, it is not persuasive in terms of the reason communicated to Mr Cole. The explanation now given by Mr Powell for withdrawing the offer made to Mr Cole is because of concerns about the availability of drivers due to drivers being absent on sick leave or workers compensation. That explanation was challenged by the TWU for reasons including:
a)Mr Powell asserts that a number of drivers were absent on long term sick leave or worker compensation. Mr Powell refers in his evidence to Steve Spicer, Glen Townsend, Robert Hodgson, Trevor Munn and Paul Gaffney[71]. However, each of those individuals had been absent from work for an extended period of time and were not recorded on the daily rosters. That means that Mr Powell was well aware that each of those drivers would be absent when he offered Mr Cole the roster work on 7 August 2012.
b)Mr Powell also asserts that a number of drivers called in sick on 10, 13, 14 and 15 August 2012[72]. However, it is clear from the evidence that the drivers called in sick on the day they were otherwise required to work. Thus, Mr Powell did not become aware of drivers calling in sick until 10 August 2012 at the earliest after he had already informed Mr Cole (on the afternoon of 9 August 2012) that he would not be doing the charter work.
c)The TWU submits that nothing changed in the period between 7 August 2012 (when the charter work was offered to Mr Cole) and 9 August 2012 (when the offer was withdrawn) in relation to the availability of drivers to fulfil the company's regular route services. I do not accept that. It is highly improbable in my view that Premier would turn away valuable work just because of Mr King’s annoyance with Mr Cole. But while I am prepared to accept that there was an operational reason for turning away that work, it suited the purpose of Mr King to send a message to Mr Cole that his conduct had been a factor.
[71] Affidavit of Powell affirmed 23 April 2013, [19].
[72] Affidavit of Powell affirmed 23 April 2013, [20].
I find that, while there was an operational reason for the subcontracting decision, the message delivered to Mr Cole by Mr Powell on behalf of Mr King was intended to, and did, create the impression in Mr Cole’s mind that his conduct had been a factor. For these reasons, the Court could not be satisfied that the reason for not confirming Mr Cole to undertake the charter work was dissociated from and did not include that Mr Cole had participated in an industrial activity.
Reason for conduct - roster sheet
With respect to the removal of the roster sheet, it appears to be common ground that the roster sheet was removed from the wall in the locker room at the Unanderra depot in early August 2012. Prior to that time, vacant rosters were displayed on the roster sheet and drivers had the opportunity to express an interest in the vacant shift for a period of 28 days by recording their name on the roster sheet.
There is a disagreement in the evidence as to the date of the removal of the roster sheet. Mr Cole again gave consistent (and indeed forceful) evidence that he observed that the roster sheet was removed on 10 August 2012 (the day following his conversation with Mr Powell in which he was told he would not be doing the charter work)[73]. In his oral evidence, Mr Cole explained that he particularly recalled the date because a particular driver was one day away from obtaining a new roster when the roster sheets were removed and was denied that opportunity. In contrast, Mr Powell's evidence that the roster sheet was removed by him on 6 August 2012[74] is given without explanation or elaboration and no rationale for his recollection of the date provided. That evidence could not be sufficient to rebut the reverse onus.
[73] Affidavit of Cole sworn 2 April 2013, [31]; Affidavit of Cole sworn 8 May 2013, [6].
[74] Affidavit of Powell affirmed 23 April 2013, [23].
In this regard, there is some confusion in relation to the distinction between the operation of the roster sheet system and strict seniority basis for allocations. Premier asserts that it made a policy decision in 2011 to place lesser emphasis on seniority when allocating work[75]. The TWU concedes that the seniority list appears to have been removed in 2011[76], although the witnesses understood that vacant rosters continued to be generally allocated based upon seniority until August 2012.
[75] Affidavit of Powell affirmed 23 April 2013, [26].
[76] Affidavit of Cole sworn 2 April 2013, [16].
Whilst Premier has suggested some reasons why it moved away from a strict seniority basis of allocating rosters, and Mr King explained his disapproval of the vacant roster sheet system, no evidence was given why the roster sheet was in fact removed in August 2012 as opposed to some other time. A defendant seeking to rebut the statutory presumption in s.361 can be expected to rely on direct testimony of the decision-maker's reason for taking the adverse action[77].
[77] Board of Bendigo Institute of Technical and Further Education v Barclay (2012) 290 ALR 647 at [43].
Where no evidence of any alternative reason is given for the timing of the action, Premier could not have proved that the reasons for removing the roster sheet in early August 2012 did not include the industrial activities as alleged in the application.
I certify that the preceding sixty-seven (67) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 21 March 2014
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