Tyson v Heiko Constructions Trading as Heiko Constructions Pty Ltd
[2019] FCCA 3643
•12 December 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| TYSON v HEIKO CONSTRUCTIONS TRADING AS HEIKO CONSTRUCTIONS PTY LTD | [2019] FCCA 3643 |
| Catchwords: INDUSTRIAL LAW – Adverse action – coercion – where applicant pleaded dismissal because of specific complaints made – where applicant pleaded coercive comments made to him by supervisor – where applicant pleaded coercion pursuant to s.343 of FW Act 2009 – coercion under that section not made out – whether Court can look at whether coercion pursuant to s.348 made out on the facts – a finding of coercion made – whether applicant exercised a workplace right – respondent discharged onus. |
| Legislation: Fair Work Act 2009 (Cth), ss.340, 341, 343, 346, 347, 348, 349, 350, 361, 546, 545(2)(b) Work Health and Safety Act 2011 (Qld), s.39 |
| Cases cited: Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500 Esso Australia Pty Ltd v Australian Workers Union [2017] HCA 54 Fair Work Ombudsman v OzKorea Pty Ltd & Ors [2018] FCCA 2350 Gould v Mount Oxide Mines Ltd (in Liq) [1916] HCA 81 |
| Applicant: | JOHN ROBERT TYSON |
| Respondent: | HEIKO CONSTRUCTIONS T/A HEIKO CONSTRUCTIONS PTY LTD |
| File Number: | BRG 823 of 2018 |
| Judgment of: | Judge Vasta |
| Hearing date: | 5, 6 and 7 November 2019 |
| Date of Last Submission: | 7 November 2019 |
| Delivered at: | Brisbane |
| Delivered on: | 12 December 2019 |
REPRESENTATION
The Applicant appearing on his own behalf with a McKenzie friend.
| Counsel for the Respondent: | Mr Murdoch QC assisted by Mr Martin of Counsel |
| Solicitors for the Respondent: | James Conomos Lawyers |
ORDERS
The Court declares that the Respondent, Heiko Constructions Pty Ltd, contravened s.348 of the Fair Work Act in that Mr Barrios attempted to coerce the Applicant into re-joining the CFMEU and paying his union dues by threatening the Applicant that he could not work on an EBA job unless he paid the union and that if he didn’t pay the union, he would be employed elsewhere for a wage that “sucked”.
In all other respects, the Application filed on 13 August 2018 as amended on 9 November 2018, 20 December 2018 and 17 January 2019 be dismissed.
That the further hearing of the matter be adjourned to a date to be fixed for submissions on the question of penalty and compensation.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRG 823 of 2018
| JOHN ROBERT TYSON |
Applicant
And
| HEIKO CONSTRUCTIONS T/A HEIKO CONSTRUCTIONS PTY LTD |
Respondent
REASONS FOR JUDGMENT
Introduction
The Applicant, John Robert Tyson, is a very experienced building labourer. He was born on 11 January 1965. His specialty is “patching”.
The Applicant was working for the Respondent on the “Jewel project” in Surfers Paradise during the relevant period. On 25 September 2017, the Applicant witnessed an accident involving a fellow worker where that worker sustained a serious fracture to the leg.
The Applicant was of the view that the state of the area, in which that worker was working, was responsible for this accident. Soon after the accident he saw that there were other workers going to the site of the accident to “tidy it up”.
The Applicant was quite vocal about what he had seen and raised this issue with both the union and management. Because he could see no progress, he eventually made phone calls to WorkSafe and to the CFMEU “hotline” complaining, or “whistleblowing”, on what he had seen. These calls were made in the first week of October about 10 days after the accident.
Because he saw no action from the CFMEU, he resigned his membership from that organisation.
In April 2018, he had a meeting with the foreman where the issue of his payment of union dues was discussed.
On first of May 2018, the Applicant had a discussion with CFMEU organisers as to his membership. On 10 May 2018, a senior delegate with CFMEU attended the worksite. Again, the Applicant was vocal during this meeting.
The next day, the foreman terminated the employment of the Applicant.
The Applicant is claiming that the employer committed “adverse action” because he (the Applicant) made the complaints to WorkSafe and the CFMEU hotline and that the foreman “coerced him” to pay union dues.
The question for this Court is to determine the factual matrix and then to decide whether what the Applicant has pleaded allows for a finding of “adverse action” or “coercion” on those facts.
Preliminary matters
The Applicant was self-represented during the trial. He was representing himself when he commenced the action and then became represented by lawyers during some of the interlocutory stages. Notably, the amended application (upon which this trial was based) was drafted by the then legal representatives of the Applicant.
By the time the matter was ready for trial, the Applicant was again self-represented. The trial was to be conducted by using affidavits as evidence in chief. There were a number of witnesses that the Applicant wished to call but who had not provided affidavits. The Applicant issued subpoenas for six witnesses. Those witnesses gave evidence by having the Applicant call them to give full evidence.
I have listened to all the evidence and have had regard to the large amounts of material that both sides have put before me. I indicate now that I have found the Applicant to be a witness of truth and, in fact, he is one of the more honest witnesses that I have seen.
Whilst I have no issue with his honesty, there are some aspects of his evidence where conclusions he may have made, may not be objectively reliable. I have also taken into account the list of objections to his evidence that the Respondent has furnished to me. Having regard to all of the material that I have listened to and read, I have made the following findings of fact.
Employment
The Applicant is a very experienced form work patcher. He has worked on constructions such as the USQ Arts Building, the Reef Casino, the Breakwater Casino and the women’s jail at Wacol. The Applicant had recently worked for Heinrich Constructions on two projects, Casino Towers and the Milton project at Railway Terrace.
The Applicant wished to be transferred to the Jewel project because Heinrich was involved in that project. The Jewel project is a very large project comprising of the construction of three towers and a shopping and leisure precinct on absolute beachfront land on the corner of Old Burleigh Rd and Wharf Rd, Surfers Paradise. The Applicant began working at that project in late June 2017. I accept that he was mainly assigned to work on Tower Three, though he had worked on all areas of the project.
On 19 July 2017, he completed a form for Heiko Constructions Pty Ltd (“Heiko”) where he gave his details. Heiko is the Respondent in this matter. That form is Exhibit 1.
The form was described as a contract, however, any scrutiny of the document would show that it is not a contract. Nonetheless, there seems to be little doubt that the Applicant was employed by the Respondent, certainly from 19 July 2017. Therefore, there was a contract between the Applicant and the Respondent; it’s just that the contract was not a written contract and its terms can only be gleaned by examination of the surrounding circumstances.
The evidence from the sole shareholder and director of the Respondent, Ms Bennett, was that the Respondent is a labour hire company. She said that Heinrich Constructions had a subcontract with Multiplex. Multiplex was the head contractor for the Jewel project. Ms Bennett said that the Respondent provided the labour to Heinrich Constructions.
Ms Bennett gave evidence that Heinrich Constructions is a company that is run by Gerhard Heinrich who is known as “Hoss”. Whilst the Applicant alleged that the Respondent was a related company to Heinrich Constructions, this has been denied emphatically in both the pleadings and in correspondence sent by the Respondent and I accept that the two companies are not related (which is in keeping with an earlier ruling made by His Honour Judge Jarrett).
It is then extremely strange that Ms Bennett claims that the contract between the Respondent and the Applicant (which is clearly not a written contract) is governed by an enterprise bargaining agreement (“EBA”). She gave evidence that the EBA governing the employment of the Applicant was the EBA that has been tendered as Exhibit 3 in these proceedings.
As can be clearly seen on the face of the document, this EBA is one that concerns Heinrich Constructions and the CFMEU. Clause 3.1 (a) of that agreement defines that the agreement applies to “Heinrich Constructions and any related bodies corporate” as employer and any employees of that employer. Heiko is not a related body corporate as the Respondent repeatedly pointed out during the course of this litigation.
This means that the employment of the Applicant was not governed by this EBA.
It would however seem that the Applicant and the Respondent have impliedly agreed that the Applicant would work for, and take directions from, the Respondent for the base rate of $41.13 an hour. The Building and Construction General On-Site Award 2010 seems to allow this “on-hire” agreement.
The Respondent claims that the Applicant was a full-time “daily hire employee”. This was never conveyed to the Applicant and there is no written record of this fact. This is a clear contravention of cl.10.2 of the Award.
This has a consequence for the Applicant because the Building and Construction General On-Site Award 2010 notes, at cl.16, that notice of termination is provided for in the NES but that those provisions do not apply to a daily hire employee. According to the Award, a daily hire employee can be terminated on one days’ notice.
It has been submitted to me that this is a side issue in the proceedings and may not be directly relevant to the issue that I have to decide. As will become clearer later in these Reasons, I am of the view that this is not an insignificant aspect of the matter. It is clear to me that the Respondent deliberately kept the Applicant “in the dark” as to his employment status.
The Applicant claimed that he was quite confused as to his true employment status and that it was only after he launched these proceedings that he discovered that the Respondent was his employer and not Heinrich Constructions (“Heinrich”). This is perfectly understandable considering that the Applicant’s “uniform” consisted of a pink “hi vis” vest with the word “HEINRICH” printed in large print on the back.
The Applicant also testified that it was only after he instituted these proceedings that he was informed that the Respondent considered him a daily hire employee. Nevertheless, the Applicant was being paid far above the award wage.
The Accident
On 25 September 2017, Jason Whittle, a leading hand form worker, suffered injuries in an accident that occurred at the Jewel site. In evidence before me, Mr Whittle said that he was near Tower One and he had to traverse the area between the tower and the wall. He described that area is being untidy and “not up to Heinrich standards”.
He said that he knew that he was supposed to raise an issue with management if he felt that he was being asked to work in an unsafe environment. He said that he felt that he could not do that. At that time the regular foreman, Mr Louis Barrios, was on leave. The acting foreman, Mr Kevin Berger, was a person with whom Mr Whittle had clashed in the past. Mr Whittle recounted that he had been sacked on two previous occasions by Mr Berger. He was of the view that, if he raised the issue of his safety concerns with Mr Berger, he would be dismissed again.
Instead, Mr Whittle said that he raised the matter with the union delegate. He said that the union delegate did nothing about his concerns. So, despite his misgivings, Mr Whittle said that he went about working in that area. He testified that he knew that he was supposed to refuse to do the work but that this was “easier said than done”.
Mr Whittle suffered a fall which resulted in him receiving fractures in the leg. Mr Whittle limped into Court and I infer that this limp is as a result of the injuries that he sustained over two years ago in this accident.
The Applicant was the only person to actually witness what occurred. He had noticed that other workers had been slipping in this area both during this day and the day before. He said that there was “poor housekeeping” and that this was the reason for the accident. The Applicant and another patcher, Sean Johnson, immediately went to assist Mr Whittle when the accident occurred.
Mr Johnson gave evidence before me after his attendance was procured by subpoena. He said that in the area where the accident occurred, there was loose dirt which looked as if it had the potential to “impact” on access.
The Aftermath
The Applicant reported what he had seen to the Heinrich health and safety officers as well as the CFMEU delegate. Soon after, the whole site was shut down by the CFMEU delegate. All of the “Heinrich” employees were told to go into the sheds.
The Applicant claims that he saw another Multiplex employee, Ross Morley, heading towards the accident site at the time that he, the Applicant, was heading to the sheds. The Applicant claims that Mr Morley had a wheelbarrow, rake and shovel with him which prompted the Applicant to say words to the effect “two guesses for knowing where you’re going”. The Applicant claims that Mr Morley replied “up there to clean it up apparently”.
Mr Morley gave evidence on subpoena and so the Applicant was limited to asking non-leading questions of him. Mr Morley testified that he did not attend the scene but that he had done some tidy up work on that area before the accident. I do not accept the evidence of Mr Morley. He was quite unconvincing in the manner in which he gave evidence and his body language indicated how uncomfortable he was giving evidence.
The “Heinrich” workers were in the shed for about an hour. When the Applicant left the shed, he walked past the accident scene and observed a number of persons in the area of the accident site and saw that some of them were cleaning and altering the site.
When the Applicant returned the next day he noted that the site where the accident had occurred had been cleaned up and looked very different from how it looked the day before. The Applicant was of the view that this was incorrect procedure following a workplace accident.
Very soon after this observation was made, the workers on site were asked to attend a meeting by the CFMEU. There were about 120 workers at this meeting. Two union delegates addressed the meeting to discuss the accident that had occurred the day before. The delegate read out an “incident report statement”. The Applicant was disturbed at this report as he knew it to be incorrect and not in accordance with what he had witnessed. The report, in effect, exonerated management from any direct liability in relation to this accident.
Quite bravely, the Applicant told the meeting that the version in the report was incorrect. The Applicant told the delegates of the union that it was ridiculous for the union to have compiled a report without speaking to the Applicant who was the only witness to the incident. The Applicant said that his outburst caused there to be an undermining of trust in the union delegates by the rest of the workers.
I accept the Applicant’s evidence that, as far as he was concerned, he resigned from the CFMEU at that particular meeting in a fairly flamboyant manner. I accept that, from this date, the Applicant refused to pay his union dues.
Soon after this, the Applicant was asked by Heinrich management to give them a short note as to what had occurred. This note is reproduced as Annexure 5 to the affidavit of the Applicant.
Mr Johnson corroborates that the Applicant spoke at the meeting with union and said that he wanted to give a statement. Mr Johnson recalls that both he and the Applicant then gave statements to Heinrich management.
Investigation of the Accident
Malcolm Savage, an inspector from WorkSafe Queensland, was tasked the job of investigating this accident. WorkSafe Queensland was notified at 6:55 PM on 25 September 2017, the day of the accident. The report, which is Annexure 7 to the affidavit of the Applicant, describes that Mr Whittle was stepping down the edge of an excavation, lost his footing, fell and injured his leg. It also noted that as “long-term action to prevent re-occurrence” that “workers should always use the designated access to the work area”.
Mr Savage visited the site during the day of 26 September 2017. He spoke with two persons from Multiplex. His notes are contained in Annexure 6 to the affidavit of the Applicant. From the notes, Mr Savage only spoke to one person, Jack Tonge, a carpenter with Heinrich (though most probably employed by the Respondent, Heiko).
Mr Savage gave evidence before me, again because his presence was procured by subpoena. He said that he was given information that Mr Whittle had only suffered minor fractures and had already been discharged from hospital. He said that he interviewed Mr Tonge because that was the only person who was referred to him by Multiplex management. He confirmed that he had never been told that the Applicant was a witness to the accident.
Mr Savage also confirmed that he did not ever speak to Mr Whittle about the accident. He confirmed that, within weeks of his visit to the site, he concluded the investigation and that no further action was taken.
It does seem somewhat incongruous that an investigation could be concluded without the investigator speaking to the person involved in the accident and the only other eyewitness.
It is not part of my function to determine the cause of this accident because the fact of this accident is very much a peripheral matter. Nevertheless, it seems to me that there has been no proper explanation as to why neither Mr Whittle nor the Applicant were interviewed. I accept the evidence of the Applicant that he truly believed that it was “poor housekeeping” by Heinrich Constructions and Multiplex that was to blame for the accident.
It is also understandable why the Applicant would believe that there had been a “cover-up” perpetrated by Multiplex and Heinrich and aided and abetted by the CFMEU. Again, it is not my function to say whether this belief was objectively justified.
What the Applicant did
I accept the evidence of the Applicant that he contacted the Australian Building and Construction Commission (“the ABCC”), on 26 September 2017, to tell them about his concerns. I accept that he was given, by the ABCC, telephone numbers for WorkSafe and for the CFMEU hotline.
I accept the evidence of the Applicant that he telephoned both WorkSafe and the CMFEU hotline around 4 October 2017. I accept his evidence that he telephoned both those entities to speak of his knowledge as to the cause of the accident and to his belief that the accident site had been tidied up by Heinrich and Multiplex.
The question as to whether such action is a “workplace right” pursuant to s.341(1)(c)(i) of the FW Act will be discussed later in these Reasons.
Subsequent Occurrences
I accept the evidence of the Applicant that he was quite disturbed that nothing had happened in relation to the accident involving Mr Whittle. I accept that the Applicant was quite “passionate” about this particular incident and about safety in general. This is corroborated by the evidence of Mr Daniel Wilson.
I accept that, at about the time that he made the complaint to the hotline and to WorkSafe, the Applicant spoke to the site foreman (the Applicant’s boss on the site) after he had come back from holidays. The Applicant said to Mr Barrios that he (the Applicant) was the only witness to the accident and that he should have given evidence to WorkSafe (presumably a reference to Mr Savage). I accept that he also told Mr Barrios that he would not be a member of the CFMEU “until they did their job properly”.
Meeting on 1 March 2018
On 1 March 2018 at 6.47am, the Applicant wrote an email to senior officers of the CFMEU. It was a complaint about safety and was accusing the union of not displaying sufficient commitment to the cause of safety at the Jewel site. The Applicant reiterated that this was why he had resigned. He did not mention the accident of 25 September 2017 in that email which is Annexure 8 to his affidavit.
I accept the evidence of Mr Wilson that he was able to organise a meeting between the Applicant and a number of CFMEU officials on 1 March 2018. Consistent with his evidence, and that of the Applicant, I am satisfied that there was a full and frank discussion at that meeting.
The Applicant told the officials about his concerns in relation to safety issues and his opinion that the accident of Mr Whittle was the subject of a “cover-up”. The officials told the Applicant that he should pay his union dues because he should have the protection of the union, given his actions in continually raising the subject of safety.
I accept the evidence of Mr Wilson that the meeting concluded with the union committing to talk to Heinrich about getting the Applicant involved in safety matters on site. In return, the Applicant would pay his dues.
I accept the evidence of the Applicant that, three days later, the safety delegate of Heinrich told the Applicant that he was not on the list for the next health and safety course. I accept the evidence of the Applicant that this caused him to believe that he would not be made the HSR delegate. While I accept that the Applicant had this subjective belief, I am not convinced of the objective reliability of that belief.
I accept the Applicant then believed that the CFMEU had gone back on the “deal” reached at the 1 March meeting. Again, whilst I accept that the Applicant had this subjective belief, I am not convinced of the objective reliability of that belief.
Other interactions with the Union
On 9 April 2018, the Applicant sent an email to Michael Ravbar, a senior official with the Queensland branch of the CFMEU. In that email (which is annexure 10 to the affidavit of the Applicant), the Applicant reiterates his complaint regarding the accident involving Mr Whittle.
On 14 April 2018, the Applicant sent an email to Michael O’Connor, a senior national official with the CFMEU. It would seem that the Applicant attached the email that was sent to Mr Ravbar to this email. In this email, the Applicant complains that his safety concerns have not been adequately addressed by the union and certainly not by Multiplex. He also complains that he has been the subject of “attempted character assassination” and that the “mood” at the job site makes a “mockery of the “stand up, speak out, come home” slogan.
On 27 April 2018, there was a site safety meeting held at 6:30 AM with Michael Ravbar talking to the workers on site in regards to protocol and process. During that meeting, the Applicant was particularly vocal and told the union delegates that he was not interested in the politics but was very concerned about “safety cover-ups”. He reiterated his view that the correct protocol was not followed in relation to the accident involving Mr Whittle and that there had been an altering of the incident scene.
The meeting with Mr Barrios 27 April 2018
Sometime after the meeting with the union concluded, the Applicant was called to a meeting in the office of Mr Louis Barrios, the foreman and the effective boss of the Applicant. The Applicant recorded this meeting.
I have listened to this recording and I reproduce the relevant parts of the transcript of this conversation with parts that I have underlined.
MR BARRIOS: In my office.
MR TYSON · ls this when you know when you're really in trouble? No, no.
MR BARRIOS: I thought you were getting along well with the union.
MR TYSON: (indistinct) no. Not really, Louis.
MR BARRIOS: Because of your union dues. And because we have a good relationship with the union and on an EBA job and all that once everyone doesn’t pay and they won't give it up they go up to the employer and they say ''Can you help us out?" and all that. I said, "Well all l can do is talk to the guy cause as you know, we can't force you to join the union."
MR TYSON: Yeah.
MR BARRIOS: It's, fucking (indistinct) I'm just saying is there anything we can do to mediate or anything like that, or anything that we can help in your way to make you feel more comfortable so then you can actually pay the union and be on an EBA job.
MR TYSON: Yeah.
MR BARRIOS: So - - -
MR TYSON: Louis, Multiplex put a poster up in our shed, you know, and they basically said, "Equal opportunity employer; we don't care if there's a union or whatever on site."
MR BARRIOS; (indistinct) because that's what they have to do with that.
MR TYSON: Yeah, yeah, yeah.
MR BARRIOS: You've been around long enough - - -
MR TYSON: Yeah, yeah.
MR BARRJOS: - - - and you know how all the politics work - - -
MR TYSON: Yeah.
MR BARRIOS: - - - and everything like that
MR TYSON: Yeah.
MR BARRIOS: But what the bottom line that it comes down to is: everyone gets a good wage on the job because you've got an EBA and the union thinks to be that because it's an EBA job and the union is involved, then we should be able to pay the union. If you don't want to do that, then you can - you know, there's also other jobs out there. You don't have to pay the union, but, you know, your wage sucks.
MR TYSON: Yeah.
MR BARRIOS: You get fucking, half the money you get now·- -
MR TYSON: Yeah
MR BARRIOS: - - - because of site allowance and everything like that. So, like l said, see what you can do.
MR TYSON: Yeah.
MR BARRIOS: I'll leave that, of course.
MR TYSON: Yep.
MR BARRIOS: It's all up to you.
MR TYSON: Yeah.
MR BARRIOS: We've got nothing. But it's just - you know?
MR TYSON: Yeah.
MR BARRIOS: As far as I'm concerned with your work etiquette or whatever, I've got no problems at all.
MR TYSON: Yeah.
Meeting with Union Officials 1 May 2018
The Applicant testified that he had heard rumours around the worksite that he would be removed from the job. He still refused to pay his dues or to re-join the union because of what he says was the inaction by the union on the issues he had raised.
On 1 May 2018, the Applicant had a meeting with a number of union officials. The meeting went for about half an hour and the Applicant recorded it as well. I have listened to the recording and the transcript is Annexure 2 to the affidavit of the Applicant.
It is obvious from listening to the recording that the union officials were trying to persuade the Applicant to pay his union dues. The main union official, Mr Sean Desmond, told the Applicant that he “got a phone call from Hoss wanting to know a list of non-financial members”. Mr Desmond said that Hoss wanted to know who was “unfinancial” because it was “agreement time”. The reference to “Hoss” is a reference to the owner of Heinrich Constructions.
Mr Desmond reiterated to the Applicant that he was getting the benefit of $600 extra in take-home pay because he was on an “EBA site”. The Applicant pointed out that there were posters in the site that said that workers had “freedom of association”. Mr Desmond replied that those posters can come down as quickly as they go up. Mr Desmond also said that, while freedom of association is the law, there were other choices to and that one of those choices “is maybe fucking Hutchinson’s down the road”, which I take to be a reference to another construction job which was happening also in Old Burleigh Road.
Mr Desmond told the Applicant that he could sign an authorisation in the office and that his dues would be taken out of his pay. Mr Desmond said “it’s got nothing to do with us, you can do that with them they will just be told to pay it anyway and then do that, whatever you want to do with that. That’s how that will get done, and if you don’t choose to do that, well, then it’s in Hoss’ hands mate”.
At one stage, the Applicant said that if he decided to pay his fees, would he be guaranteed that he would not be “scrubbed off every EBA job”. The reply from Mr Desmond was that “you will be here for another 12 months, mate”.
Mr Desmond then spoke about the Applicant’s conversation with Mr Ravbar, presumably four days previously. The Applicant said that Mr Ravbar had given him the impression that he would have to pay or he “would be gone”. The Applicant said that Mr Ravbar,
…crapped on about the thing about Whittle, the accident with Whittle is no reason not to pay me my fees. You know, why aren’t I paying my fees, and I told him, and he said, ‘that’s no reason not to pay your fees’. Basically, you know-well, you were there. I said, ‘well, I haven’t had any answers, you know?’ And that is the reason. Like, you know, Jack will tell you I publicly withdrew.
At a later stage, Mr Desmond told the Applicant that he knew that “they don’t have a problem with your work”. Mr Desmond then said that he can’t guarantee it but that the Applicant “will be here”. Mr Desmond said “you know what you have to do for yourself but you also know what you have to do for Heinrich moving forward to get an agreement. That’s the biggest thing. I mean, I can’t say what Hoss won’t do if you don’t move forward, but I think you already know”.
Subsequent Occurrences
In early May 2018, a rigger was seriously injured on the Jewel site. This accident received media attention and some workers and union officials had spoken to a journalist from the Gold Coast Bulletin about the incident. A CFMEU delegate had written up an incident report. The Applicant obtained a copy of that report and gave it to the journalist. The Applicant told the journalist that he did not want his name associated with the incident report.
The Applicant claims that, on 10 May 2018, he was called “a fucking dog” by a high-ranking official of the CFMEU. He said that this official was quite intimidating and so he, the Applicant, kept quiet whilst this official said words to the effect that it wasn’t acceptable to report safety issues on site to the media. That official also said that he didn’t consent to anyone tape-recording anything he said.
Termination
The next morning, 11 May 2018, Mr Barrios called the Applicant into his office. He told the Applicant that this was his last day and that his employment was terminated. The Applicant said that he was not given a reason why.
Mr Barrios gave evidence that he dismissed eight workers that day because the project was winding down and these workers were no longer required due to a shortage of work. He said that the Applicant was the last person that he called in to be dismissed.
He said that when he told the Applicant that he was being dismissed, the Applicant shook his hand and said words to the effect that he “could see it coming”. Mr Barrios said that he told the Applicant that if there were any new projects coming up that he would give him a call.
He said that he gave the Applicant a separation certificate. That separation certificate is Annexure 12 in the affidavit of the Applicant and also Annexure 1 in the affidavit of Mr Barrios.
Pleadings
The Applicant filed an amended application on 17 January 2019. This application was prepared by a lawyer.
At paragraph 11 of the pleading, the Applicant pleaded as follows:
11. On or about 4 October 2017, the Applicant:
·made an enquiry with WorkSafe via telephone;
·stated to WorkSafe the Applicant was a witness to the incident particularised in paragraph 4;
·stated he had knowledge the Jewel Project site had been changed prior to the WorkSafe inspection of the site ("WorkSafe Complaint") because he witnessed the site both before and after the incident.
At paragraph 12 of the pleading, the Applicant pleaded as follows:
12. On or about 4 October 2017, the Applicant:
a. made an enquiry with CFMEU Safety Hotline via telephone;
b. stated to CFMEU Safety Hotline the Applicant was a witness to the incident particularised in paragraph 4 herein;
c. stated he had knowledge the Jewel Project site had been changed prior to the WorkSafe inspection of the site ("Union Complaint") because he witnessed the site both before and after the incident.
At paragraph 16 of the pleading, the Applicant pleaded as follows:
16. On or about 11 May 2018, the Respondent terminated the Applicant's employment, and the Applicant says that;
a.because the matter referred to in paragraph 11 the Respondent terminated the Applicant's employment
b. further and in the alternative the Respondent terminated the Applicant's employment for reasons which included the matters referred to in paragraph 12.
At paragraph 17 of the pleadings, the Applicant alleges that:
17. On the premise of paragraph 11 herein, the Respondent has contravened section 340(1)(a)(ii) of the Act, as:
a. the Applicant has exercised his workplace right within the meaning of section 341(1)(c)(i) of the Act by reporting a workplace incident to Worksafe - the WorkSafe Complaint;
b. because of that workplace right, on the premise of paragraph 16 herein, the Respondent took adverse action against the Applicant within the meaning of section 342(1) of the Act by dismissing the employee.
At paragraph 18 of the pleadings the Applicant alleges that:
18. On the premise of paragraph 12 herein, the Respondent has contravened section 340(1)(a)(ii) of the Act, as:
·the Applicant has exercised his workplace right within the meaning of section 341(1)(c)(i) of the Act by reporting a workplace incident to the CFMEU, the Union Complaint;
·because of that workplace right, on the premise of paragraph 16 herein, the Respondent took adverse action against the Applicant within the meaning of section 342(1) of the Act.
I will refer to these claims as the “adverse action” claims.
At paragraph 14 of the pleading, the Applicant details the conversation with Mr Barrios that occurred on 27 April 2018. That paragraph reads as follows:
14. On or about 27 April 2018, the Applicant:
a. was directed to attend a meeting with the Respondent, through Mr Barrios;
b. was directed by the Respondent through Mr Barrios to pay CFMEU Union Dues;
c. told the Respondent through Mr Barrios that the CFMEU dues were not paid due to lack of action in relation to the Applicant's safety complaint referred to in paragraph 12;
d. was told by the Respondent through Mr Barrios that the CFMEU needed to receive their dues;
e. was told by the Respondent through Mr Barrios that if the CFMEU did not receive their dues:
i. the Applicant could no longer work on the Jewel Project;
ii. the Applicant could no longer work on an "EBA" job;
f. was told by the Respondent through Mr Barrios, words to the effect of, if the CFMEU dues were not paid, there were "other jobs out there".
At paragraph 21 of the pleading, the Applicant alleges that:
21. On the premise of paragraph 14 herein, the Respondent has contravened section 343(l)(a) of the Act, as:
a. the Applicant has exercised his workplace right within the meaning of section 341(1)(b) of the Act, namely ending Union membership;
b. on the premise of paragraph 14 herein, the Respondent did, either:
i. threatened to take action to prevent the Applicant from exercising the work right;
ii. did take action to coerce the Applicant from exercising the workplace right.
I will refer to this claim as the “coercion” claim.
During the trial, I gave the Applicant a substantial degree of latitude because of the fact that he was self-represented. Whilst it is obvious that the Applicant has a number of issues and complaints about everything that occurred during his employment at the Jewel site, as I reminded him, he is the one who has set the goalposts for what I must decide. Notwithstanding my explanations, I am not convinced that he truly understood what I was saying.
I will deal with these claims in the same order in which the parties dealt with them in their submissions to the Court.
The Coercion Claim
During submissions, the Applicant still spoke in generalities as to the claim of coercion. He submitted simply that he was threatened with dismissal if he did not join the union.
There are a number of disturbing aspects in the conversation that the Applicant had with Mr Barrios. The mere fact that a “boss” would raise with an employee the fact that he (the employee) had not joined the union is sufficient to put pressure upon an employee. It does not matter that Mr Barrios said to the Applicant that he had explained to the union that he cannot make the Applicant join the union; the pressure is still there.
Mr Barrios kept referring to the EBA. He kept saying that the EBA was what enabled the Applicant to get a good wage from working at the Jewel site. This is wrong and palpably so. The EBA is not an instrument that covers the Applicant. The EBA is for Heinrich employees and not for Heiko employees.
There was no written contract of employment and no EBA that covered the Applicant. It was an implied contract that the Applicant would work for the Respondent for a base rate wage of $41.13 an hour. The continued reference to the EBA was another added pressure upon the Applicant.
Mr Barrios also implied that unless the Applicant was a union member, he could not work on an EBA site. This is also incorrect but coming from a person who had the authority of Mr Barrios, it would also create pressure upon the Applicant.
When the Applicant raised the poster in the shed that guaranteed his “right of affiliation”, the response from Mr Barrios was that the Applicant had been “around long enough to know how all the politics work”. This is an obvious undermining of the absolute right that the Applicant had to decide whether or not to be a member of a union.
Finally, Mr Barrios tells the Applicant that, because it is an EBA job and the union is involved, then “we should be able to pay the union”. Mr Barrios then says that if the Applicant didn’t want to do that then “there is also other jobs out there”. It is quite clear, from what has been said by Mr Barrios, that the consequences of the Applicant not paying his union dues is that he will be working other jobs where his wage will not be as good as it is presently.
It seems to me that Mr Barrios was quite clearly threatening the Applicant that if he didn’t want to pay the union, his only choice was to be employed in other jobs out there. Mr Barrios said that the Applicant didn’t have to pay the union but the result would be that he would have a less than ideal wage.
Whilst the manner in which Mr Barrios spoke was calm and not overtly threatening, it was, in my view, nevertheless a threat. It is clear, in what Mr Barrios said to the Applicant, that if the Applicant did not comply there would be a detriment to him in that he would be working at another job with far less remuneration.
It has been submitted to me that the conduct must be unlawful, illegitimate or unconscionable before it can amount to coercion. In Esso Australia Pty Ltd v Australian Workers Union [2017] HCA 54, the High Court noted that other courts had held this view “although it is not immediately apparent why that should be so” (per paragraph 61). Notwithstanding this caveat, I am of the view that I should accept this “idea” to be the current state of the law for present purposes.
It seems to me that the constant reference to the EBA was unconscionable and illegitimate. The EBA did not cover the Applicant and yet it was constantly put to him that the EBA was a deal that was struck with the union for the benefit of the Applicant in order to induce feelings of guilt in the Applicant. It may be that Mr Barrios did not appreciate that the EBA did not cover the Applicant. But, as was said in paragraph 61 of Esso (supra), “it is clear that a person taking coercive action need not have an accurate appreciation of the legal nature of the action”.
The conduct of the Respondent, not just during the time that the Applicant was employed by them, but throughout this litigation process, was conduct designed to induce the Applicant to believe that he was covered by the EBA. The Applicant was clearly never covered by the EBA. The behaviour of Respondent, in continuing to inform the Applicant that he was covered by this agreement, can only be described as unconscionable and/or illegitimate.
Insofar as Mr Barrios may have suggested that the Applicant had to pay the union so as that he could be on an EBA job, such conduct is clearly unlawful. There is no lawful requirement for any worker to be a member of a union before they can work on “an EBA site”.
The Legislation Applicable to the Coercion Claim
The Applicant has claimed that the Respondent has breached s.343(1)(a) of the FW Act because the Applicant was exercising a workplace right, within the meaning of s.341(1)(b) of the FW Act, to end union membership and that Mr Barrios either threatened to take action to prevent the Applicant exercising a workplace right or took action to coerce the Applicant from exercising that workplace right.
Section 343 of the FW Act reads as follows:-
Coercion
(1) A person must not organise or take, or threaten to organise or take, any action against another person with intent to coerce the other person, or a third person, to:
(a) exercise or not exercise, or propose to exercise or not exercise, a workplace right; or
(b) exercise, or propose to exercise, a workplace right in a particular way.
To understand this section, it is necessary to understand what is meant by the term “workplace right”. That term is defined in s.341 of the FW Act. That section relevantly reads:-
Meaning of workplace right
(1) A person has a workplace right if the person:
…
(b) is able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument;
Meaning of process or proceedings under a workplace law or workplace instrument
(2) Each of the following is a process or proceedings under a workplace law or workplace instrument :
(a) a conference conducted or hearing held by the FWC;
(b) court proceedings under a workplace law or workplace instrument;
(c) protected industrial action;
(d) a protected action ballot;
(e) making, varying or terminating an enterprise agreement;
(f) appointing, or terminating the appointment of, a bargaining representative;
(g) making or terminating an individual flexibility arrangement under a modern award or enterprise agreement;
(h) agreeing to cash out paid annual leave or paid personal/carer's leave;
(i) making a request under Division 4 of Part 2-2 (which deals with requests for flexible working arrangements);
(j) dispute settlement for which provision is made by, or under, a workplace law or workplace instrument;
(k) any other process or proceedings under a workplace law or workplace instrument.
Whilst the Applicant has not particularised the workplace right other than to say it was to “end union membership”, the question is whether ending union membership is “a process or proceedings under a workplace law or workplace instrument”.
The legislature has listed 10 actions that would constitute “process or proceedings under a workplace law or workplace instrument”. It has then listed a general action of “any other process…”. It seems to me that any action that would fit into s.341(2)(k) would have to be a matter that could easily fit in as something done under a workplace law or instrument that had not been caught under the other 10 actions.
I cannot see how “ending union membership” fits into this category. This is especially so when one considers the provisions of s.347 of the FW Act that involves industrial activity. Section 347(a) states:-
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;
It seems to me that “ending union membership” is not a workplace right under the FW Act but instead is “an industrial activity”.
The protection afforded to an employee in relation to industrial activities can be found in ss.346-350 of the FW Act. In relation to the facts of this matter, it would seem that s.348 is most apposite. That section, also titled “coercion”, reads as follows:-
Coercion
A person must not organise or take, or threaten to organise or take, any action against another person with intent to coerce the other person, or a third person, to engage in industrial activity.
When that section is taken into account, it seems to me, that the facts of this matter more properly fit into an allegation that there had been a breach of s.348 rather than s.343. This fortifies my view that “ending union membership” is not “a workplace right” as that term is applied in the FW Act.
Notwithstanding that I am satisfied that Mr Barrios threatened and applied pressure to the Applicant, in an unconscionable manner, in order for him to pay his union dues, I am not satisfied that the Applicant has proven the essential element of s.343 that “ending union membership” is a workplace right.
Does the failure to plead properly mean that the claim is doomed?
During the course of submissions, the Respondent said that they have come to this Court to meet the case that was put against them and not to meet any other case that a Court may decide to form against them. The Respondent submitted that “it was just like the Criminal Code…there are many provisions, and if there is an indictment in respect of a particular charge and the elements aren’t made out, that’s the reality”.
It was submitted to me that I cannot simply substitute s.348 for s.343 in the pleaded case and make findings appropriate to a pleaded case under that section. The Respondent submitted that it is for the Applicant to plead his case rather than for the Court to interfere and create a case for the Applicant. For a Court to act in this way would be procedurally unfair to the Respondent, it was submitted.
I do not accept that submission as being a correct statement of the law. The purpose of pleadings is to delineate the facts upon which an action is based. The purpose of pleadings is not to delineate the law that applies to those facts. This is illustrated when one looks at the leading authorities in this area.
In Gould v Mount Oxide Mines Ltd (in Liq) [1916] HCA 81, the High Court said:
Before examining the nature of the case which he allowed to be spelt out of the evidence, I desire to express my strong opinion that it is unjust and improper, when a plaintiff has made definite charges against a defendant in which he fails, to allow a different case to be spelt out of evidence adduced alio intuitu. In the case of Hickson v. Lombard, Lord Cranworth said:—"This being the conclusion at which I have arrived, it is unnecessary to consider whether the pleadings do, or do not, properly raise the question on which the Court below proceeded. It was argued that no such case is made by the bill, and that the relief there asked is grounded solely on certain frauds on the part of Norris, alleged but not proved. Though the question does not in this case call for any decision, I yet feel bound to say that I subscribe most readily to the doctrine that, where pleadings are so framed as to rest the claim for relief solely on the ground of fraud, it is not open to the plaintiff, if he fails in establishing the fraud, to pick out from the allegations of the bill facts which might, if not put forward as proofs of fraud, have yet warranted the plaintiff in asking for relief. A defendant, in answering a case founded on fraud, is not bound to do more than answer the case in the mode in which it is put forward. If, indeed, relief is asked alternatively, either on the ground of fraud, or, failing that ground, then on some other equity, a plaintiff may fail on the first but succeed on the latter alternative. But, then, the attention of the defendant has been distinctly directed to it, and he has been called on to answer the case according to both alternatives. There is nothing of this sort in the pleading of this case; and whether the facts alleged are so alleged as to preclude the petitioner from insisting on any ground for relief except fraud, is a point on which, for the reasons I have stated, I do not feel called on to give any opinion."
In Fair Work Ombudsman v OzKorea Pty Ltd & Ors [2018] FCCA 2350, Judge McNab said at paragraph 108:-
[108] This case has been conducted by pleadings and as noted above the pleadings are detailed and particularised. The Federal Circuit Court Rules 2001 (Cth) do not deal directly with pleadings. Rule 1.05(2) of the Federal Circuit Court Rules states that when these rules are insufficient, the Court may apply the Federal Court Rules 2011 (Cth) (‘FCR Rules’) to the extent necessary to resolve ambiguity. Therefore, when pleadings are used, they are to comply with the requirements under Part 16 of the FCR Rules, particularly those under r.16.02: Cai v Tiy Loy & Co Ltd (No.2) [2015] FCCA 2924 [16]. Rule 16.0(4) of the FCR Rules states that ‘a party is not entitled to seek any additional relief to the relief that is claimed in the originating application’. This reflects the principle established at common law that relief must be determined based on the pleadings if these are the form chosen through which to seek relief, even where a party later attempts to have the case decided on a different basis: Banque Commerciale S.A., En Liquidation v. Akhil Holdings Ltd (1990) 169 CLR 279, 286 – 287.
In Dare v Pulham [1982] HCA 70, the High Court said at paragraph 6:-
[6] Pleadings and particulars have a number of functions: they furnish a statement of the case sufficiently clear to allow the other party a fair opportunity to meet it (Gould and Birbeck and Bacon v. Mount Oxide Mines Ltd. (In liq.) [1916] HCA 81; (1916) 22 CLR 490, at p 517; they define the issues for decision in the litigation and thereby enable the relevance and admissibility of evidence to be determined at the trial (Miller v. Cameron [1936] HCA 13; (1936) 54 CLR 572, at pp 576-577; and they give a defendant an understanding of a plaintiff's claim in aid of the defendant's right to make a payment into court. Apart from cases where the parties choose to disregard the pleadings and to fight the case on issues chosen at the trial, the relief which may be granted to a party must be founded on the pleadings (Gould and Birbeck and Bacon (1916) 22 CLR, at pp 517, 518 ; Sri Mahant Govind Rao v. Sita Ram Kesho (1898) LR 25 Ind App 195, at p 207 ). But where there is no departure during the trial from the pleaded cause of action, a disconformity between the evidence and particulars earlier furnished will not disentitle a party to a verdict based upon the evidence. Particulars may be amended after the evidence in a trial has closed (Mummery v. Irvings Pty. Ltd. [1956] HCA 45; (1956) 96 CLR 99, at pp 111, 112, 127 ), though a failure to amend particulars to accord precisely with the facts which have emerged in the course of evidence does not necessarily preclude a plaintiff from seeking a verdict on the cause of action alleged in reliance upon the facts actually established by the evidence (Leotta v. Public Transport Commission (N.S.W.) (1976) 9 ALR 437, at p 446; 50 ALJR 666, at p 668 ). (at p664)
In Vines v ASIC [2007] NSWCA 75 at 55 -59, the New South Wales Court of Appeal said the following:
55. In the present case, this matter must be assessed in the context of civil penalty proceedings. The seriousness of the consequences that may arise in such a case is greater than in a civil action for damages. Accordingly, the necessity to formally amend is significantly higher than would otherwise be the case. Particulars which are, to use the terminology of Moustakas “equivocal” or, to use the terminology of Mr S Robb SC, who appeared for ASIC, which have a “penumbra of uncertainty”, will not readily be understood in their broadest sense. Nevertheless, the issue is one of procedural fairness and the course of the trial may determine that there has been no failure in that regard.
56. It will be necessary below to consider the alleged departure from pleadings in the context of some of the contraventions which his Honour found. If necessary at all, the role of Mr Hogendijk’s evidence may need to be considered. The Respondent contends that in no respect did the Appellant object to the evidence of Mr Hogendijk as falling outside the pleaded case, indeed, that there was extensive cross-examination with respect to the very matters that were found to have constituted the contraventions. Furthermore, both ASIC and the Appellant addressed Mr Hogendijk’s evidence in submissions.
57. If necessary at all, each contravention will have to be addressed separately with a view to determining whether, in any respect in which there is found to be a departure between the pleadings and the finding of contravention, the test that the parties have chosen to fight the case on a different basis has been met. (The relevant test being that as set out in Mount Oxide Mines and Dare v Pulham.)
58 . It may also be necessary to assess the significance of any departure from the pleadings in view of the express statutory requirement in s1317EA(2), set out above, that any declaration of contravention must identify “a specified act or omission” which constitutes the contravention.
59. The Appellant’s submissions rely on the application, in the circumstances of the proceedings, of the requirement of procedural fairness. The seriousness of the consequences of the orders sought and, in the event, visited upon the Appellant, must inform the content of that requirement. Nevertheless, as is well established, procedural fairness does not involve a fixed body of rules to be applied in a formulaic manner. As Gleeson CJ said in R v Minister for Immigration and Multicultural and Indigenous Affairs: Ex parte Lam (2003) 214 CLR 1 at [37]:
“Fairness is not an abstract concept. It is essentially practical. Whether one talks of procedural fairness or natural justice, the concern of the law is to avoid practical injustice.”
In Stuart v Rabobank Australia Limited [2018] FCA 30, Jagot J said, at paragraph 5, that “the obligation is to plead material facts, not law…”
In the present case, the Applicant has pleaded the material facts upon which he bases his claim. Those facts have not been challenged in any material way. The interpretation of those facts has been challenged but that does not mean that the pleadings are defective. The Respondent knew what the allegations were from the pleadings.
The Respondent claims that the Applicant is “stuck” with the choice he has made by pleading that those facts give rise to a contravention of s343 of the FW Act.
An analogous situation arose in S P Hywood Pty Ltd v Standard Chartered Bank Ltd [1992] SASC 3764. In that case, the plaintiff had not pleaded for a particular legal consequence that followed from the facts. This did not mean that any relief sought by the plaintiff was thereby estopped. The Supreme Court of South Australia said at paragraphs 45-49
[45] There was, of course, no requirement to plead a cause of action, and indeed, an express reference to a cause of action would be contrary to the rules as to pleading. It was incumbent, notwithstanding the manner in which the case was argued, for the learned Magistrate to give such relief on whatever cause of action entitled the defendant to relief against the third party, having regard to the facts established by the evidence. Rule 67(b)(a)(ii) of the Local Court Rules, which were then of application to the hearing, obliged the pleader simply to plead a statement in summary form of the material facts on which the party relies. Rules to that effect have been, of course, common to most jurisdictions since the Judicature Act. Furthermore, s.35(e) of the Local and District Criminal Courts Act, as it was, provided:
“35e. A local court in every cause or matter pending before it shall have power to grant, and shall grant, either absolutely, or on such reasonable terms and conditions as it deems just, all such remedies whatsoever as any of the parties thereto may appear to be entitled to in respect of every claim properly brought forward by them respectively, in such cause or matter, so that, as far as possible, all matters so in controversy between the parties may be completely and finally determined, and all multiplicity of legal proceedings concerning any of such matters avoided.”
46. In Creedon v Measey Investments Pty Ltd [1988] NTSC 80; (1988) 91 FLR 318, Martin J put the matter in this way (320):
“Order 23, r 4 of the former rules provided that every pleading shall contain, and contain only, a statement in a summary form of the material facts on which the party pleading relies for his claim or defence. In Williams v Milotin [1957] HCA 83; (1956) 97 CLR 465 at 474 the High Court said: 'When you speak of a cause of action you mean the essential ingredients in the title to the right which it is proposed to enforce.' That case and others are cited by Williams in "Civil Procedure in Victoria" Vol 1 at par 13.02.30, for the proposition that: 'The pleader is not bound to state the legal effect of the facts upon which he relies; he is only bound to state the facts themselves.' The learned author goes on: 'It is sufficient if the pleader states the material facts, and at the trial he is free to present in argument whatever legal consequences are appropriate to the facts as found by the Court.' It is not necessary that the plaintiff plead a conclusion of law, that is, that the facts disclose as a matter of law the fourth defendant is vicariously liable for the alleged negligence of the third defendant. However, the plaintiff must plead the 'essential ingredients'.”
[47] It is clear on the authorities that the trial judge is not limited to a consideration of the particular cause of action which might be identified by counsel. In Drane v Evangelou and Ors (1978) 1 WLR 455, Lord Denning MR said (458):
“Now there is an appeal to this court. The first point taken on behalf of the defendants was a pleading point. The amended particulars of claim alleged that the landlord had 'interfered with the right of the plaintiff and his de facto wife Ann Watts to quiet enjoyment of the said premises by unlawfully evicting them from the said premises on Tuesday October 14, 1975.' Counsel for the defendant submitted that that claim was for breach of a covenant for quiet enjoyment. He cited a passage from Woodfall on Landlord and Tenant, 27th ed. (1968), para 1338: 'Since the claim is in contract, punitive or exemplary damages cannot be awarded.' The judge at once said: 'What about trespass? Does the claim not lie in trespass?' Counsel for the defendant urged that trespass was not pleaded. The judge then said: 'The facts are alleged sufficiently so it does not matter what label you put upon it.' The judge was right. The plaintiff in the particulars of claim gave details saying that three men broke the door, removed the plaintiff's belongings, bolted the door from the inside: and so forth. Those facts were clearly sufficient to warrant a claim for trespass. As we said in In re Vandervell's Trusts (No. 2) (1974) Ch 269, 321-322: 'It is sufficient for the pleader to state materials facts. He need not state the legal result. If, for convenience, he does so, he is not bound by, or limited to, what he has stated. He can present, in argument, any legal consequence of which the facts permit'.”
[48] Furthermore, it is open to an appeal court to substitute a judgment on what appears to be the proper cause of action, even though attention was confined to another cause of action at the trial. See, for example, Konskier v B. Goodman, Ltd (1928) 1 KB 421. In that case, an action was brought by the plaintiff against builders who had allegedly been responsible for allowing rubbish from a building which they were demolishing to fall on a roof, with a result that it was carried down by a drainpipe and choked a gully in the basement of the plaintiff's adjoining premises. Following a heavy downpour of rain, the basement was flooded. The plaintiff had moved into the premises after the builders had completed their work which resulted in the accumulation of the rubbish. The case was argued at first instance solely as a case in negligence. The trial judge found liability in negligence, but on appeal the Court of Appeal held that the action in negligence did not lie, as the defendants owed no duty to the plaintiff, who was not in occupation of the adjoining premises at the relevant time.
[49] However, the Court of Appeal was of the view that there was clearly an action in trespass. Notwithstanding the fact that trespass was not argued in the court below, they upheld the judgment on that footing. See per Scrutton LJ at p.426 (referring to Hudson v Nicholson [1839] EngR 124; 5 M and W 437):
The plaintiff brought an action upon the case and delivered a declaration which contained no allegation of vi et armis and was in point of form framed in case and not in trespass. The question arose whether the plaintiff, who at the time of the wrongful act was not in possession, could bring an action on the case.
Lord Abinger CB in delivering judgment said:
“I still adhere to the opinion that this is properly the ground of an action of trespass, and not of case. It is not similar to those cases that have been cited, of trespass to a personal chattel, where trespass and case are concurrent remedies, and where a party may waive the trespass and go for the consequential damage.' The point having been raised after verdict the Court of Exchequer discharged a rule for a new trial. It follows from that case that if the present action had been brought in trespass there would have been no answer to the claim. But a plaintiff is not now bound to state the legal effect of the facts on which he relies; he is only bound to state the facts themselves, and we cannot see that the respondent has suffered any injustice in the way of being shut out from giving evidence which he might have given if the action had been treated as an action of trespass. We therefore think that the judgment should stand as a judgment in an action of trespass and that the appeal should be dismissed, but without costs.”
When one takes into account all of the authorities, it seems to me that there is no reason in law that this Court cannot apply these facts to the provisions of s.348 of the FW Act.
Whilst I have come to the conclusion that the Court can have regard to the provisions of s.348 when considering the facts, a question that the Court must ask itself is whether it is fair to do so, especially since the Respondent has already submitted that it would be procedurally unfair. In answering this question, it is instructive to look at how the matter has proceeded, particularly in regard to the “coercion” claim.
History of the pleadings
The Applicant was unrepresented when he filed his original application on 13 August 2018. The pleadings were somewhat “un-particularised”. Notwithstanding that, the Respondent filed a response on 12 September 2018.
The parties appeared before me on the first court date. The Applicant was now represented by a solicitor. I gave the Applicant leave to file an amended claim by 9 November 2018 and then gave other directions for the filing of a defence, a reply and affidavit material before the matter was to be referred for mediation to a Registrar.
Whilst the parties complied with the filing of the claim and defence, there were obviously other negotiations occurring. The parties wrote to my Chambers and asked me to make an order in Chambers. On 18 January 2019, I ordered that the Applicant had leave to file a further amended claim by 18 January 2019 and that the Respondent file a defence by 25 January 2019 and that the Applicant file a reply, if any, by 8 February 2019.
I also made orders for subsequent filing of affidavit material and noted that the mediation was scheduled for 2 April 2019. The matter was to come back before me on 29 April 2019.
The parties complied with these orders and the pleadings and affidavit material were all filed appropriately. I do note that the Applicant was still legally represented at this time and it was that legal representative who compiled and filed the pleadings and the affidavit of the Applicant. The mediation was unsuccessful.
On 5 April 2019, the Respondent filed an affidavit foreshadowing an application to strike out parts of the further amended application and the whole of the reply. By that time, I ceased to case manage the matter and His Honour Judge Jarrett took over the case management responsibilities.
On 8 April 2019, His Honour ordered that the Respondent file and serve any “strike out application” by 12 April 2019 and to file submissions by 19 April 2019. The Applicant was to file and serve submissions by 3 May 2019 and the application would be heard on 24 June 2019.
The Respondent filed the application three days late on 15 April 2019 and filed submissions four days late on 23 April 2019. By this time, the applicant was no longer represented. He filed his submissions on 10 June 2019, over five weeks late.
With respect to paragraph 14 (which particularised the conversation with Mr Barrios on 27 April 2018), the Respondent pleaded that it was admitted that the Applicant was directed to a meeting with Mr Barrios, and that Mr Barrios told him that if the CFMEU dues were not paid that there were “other jobs out there”.
The Respondent pleaded that the other parts of paragraph 14 were denied as being “untrue”; that is, that it was untrue that Mr Barrios directed the applicant to pay the dues, that it was untrue that the Applicant said that the dues were not paid because of a lack of action in relation to the safety complaint, that it was untrue that Mr Barrios said that the union needed to receive their dues and that it was untrue that if the dues weren’t received, that the Applicant could no longer work on the Jewel project or on an EBA job.
With respect to paragraph 21 of the claim, the Respondent pleaded that it denied any contravention of s343 because it was untrue and premised on paragraph 14 which contained allegations denied by the Respondent. The Respondent also pleaded that it denied the allegation in paragraph 21 that the Applicant had exercised a workplace right by ending union membership because it was premised on paragraph 14 which contained allegations denied by the Respondent.
In the reply, at paragraph 8, the Applicant pleaded as follows:
The applicant, in reply to paragraph 14 of the respondents defence, states that he recorded the conversation with Mr Barrios on the 27 April 2018 and Mr Barrios said words to the effect:
“Everyone gets a good wage on the job because you have an EBA; and
you don’t have to pay the union dues; but
if not, you will only get half the money you get now”.
In the reply, at paragraph 12, the Applicant pleaded as follows:
The applicant, in response to paragraph 21, says the respondent engaged in coercion within the meaning of s348 of the Fair Work Act 2009 (Cth) and relies on paragraph 8 herein.
In the written submissions that were filed in relation to the “strike out application”, the Respondent sought to strike out paragraph 21 of the claim in that it did not disclose a reasonable cause of action. Those submissions also claim that the reply puts in issue facts which the Respondent had not had the opportunity to admit or deny.
In the affidavit of Mr Patty, filed on 5 April 2019 in support of the “strike out application”, the annexed correspondence illustrates the argument for the Respondent. The correspondence, at page 66 of the affidavit, discloses that the Respondent objected to paragraph 8 of the reply because it “introduces new material facts that were not pleaded in the further amended claim form and are irrelevant in any event”.
With respect to paragraph 12 of the reply, the correspondence noted that the paragraph pleads that the Respondent engaged in “coercion” within the meaning of s.348 of the FW Act. The correspondence then continues:
It appears you have conflated ‘coercion’ within the meaning of s.343 against s.348 where that provision relates to ‘industrial activity’. Accordingly, the paragraph seeks to introduce a further cause of action not previously pleaded and so the paragraph ought to be struck out.
From the correspondence, it would seem that the then legal representatives of the Applicant conceded that paragraphs 8, 9 and 12 should be removed (see page 70 of the affidavit). The attached draft amended reply (see pages 77 and 78 of the affidavit) strikes out those three paragraphs.
That draft reply was not filed. It would seem that this was the last interaction that the legal representatives for the Applicant had in this matter.
In the written submissions of the Applicant, which were composed by the Applicant himself and filed on 10 June 2019, the Applicant certainly did not concede that paragraph 8 or 9 of the reply, or the whole of the reply itself, should be struck out and referred to parts of his own affidavit which had already been filed.
With respect to paragraph 12, the Applicant curiously wrote in his submissions:
A typographical error occurred, and the section should have been s343. The applicant concedes the paragraph is to be struck out of the reply.
The “strike out application” was heard by His Honour Judge Jarrett on 24 June 2019. His Honour ordered, by consent, that paragraph 12 of the reply be struck out. His Honour refused to strike out paragraph 8 of the reply. (Of interest is the fact that His Honour struck out paragraph 2 of the reply. Paragraph 2 is an allegation that Heiko is part of Heinrich and that the companies are related. As detailed earlier in the reasons, this was vehemently denied by the Respondent and His Honour agreed.)
In looking at this chronology, it is clear to me that the Respondent was well and truly aware that the facts as pleaded were capable of a positive finding that s.348 had been contravened. They had been put on notice and did what they could to ensure that s.348 was not litigated.
As I have earlier found, it is open for this Court to find that s.348 has been contravened notwithstanding that the Applicant did not rely upon this section. In the light of the history of this litigation, I do not find it procedurally unfair to the Respondent for the Court to act in this manner.
It was also submitted to me that the unfairness exists because s.348 is a reverse onus section and that Mr Barrios was denied the chance to give evidence in respect of a claim under s.348.
I cannot accept this submission. The claim made by the Applicant was, in effect, that he was coerced to pay his union dues by Mr Barrios who threatened that if he did not join the union then he could not work on an EBA job and would have to work other jobs where his pay would not be as lucrative.
Mr Barrios gave evidence both in his affidavit, and in testimony before me, in answer to that allegation. Those are the facts upon which the claim is made whether it is a claim under s.343 or whether it is a claim under s.348. The facts do not change just because a Court may be looking at a claim under a different section. This is what underpins the line of authority to which I have already referred.
There is no unfairness because Mr Barrios did not know that there could be a claim under s.348 rather than just s.343. After all, the affidavit of Mr Barrios was filed on 26 March 2019. At that time, the Applicant had pleaded paragraph 12 of the reply and it had yet to be “struck out”. This means that the affidavit of Mr Barrios, which was also his evidence in chief in the proceedings before me, was compiled in answer to the allegation made by the Applicant which, at that time, pleaded both s.343 and s.348.
Has s.348 been contravened?
Having decided that the Court can legally consider whether s.348 has been contravened and that it is not unfair for the Court to do so, I must then decide whether there has actually been a contravention of that section.
The first question to be answered by the Court is whether Mr Barrios threatened to take action against the Applicant. I have already spoken about this aspect earlier in my Reasons. There was a clear threat that “if you don’t want to do that (pay the union) then you can - you know, there’s also other jobs out there… You don’t have to pay the union, but, you know, your wage sucks”.
I have already found that this threat was both unconscionable and illegitimate. Depending upon the view one takes of what was said by Mr Barrios about the link between employment on an EBA job and union membership, the threat may well have also been unlawful.
Pursuant to s.361, the Respondent has the onus of proving to me that Mr Barrios did not intend to coerce the Applicant into paying his union dues.
Mr Barrios gave evidence that “at no time during the meeting was it my intention…to attempt to coerce the applicant into paying his union dues or to join the union.” To illustrate this, Mr Barrios pointed to the fact that he told the Applicant that he had told the union that “we can’t force you to join the union” and “is there anything we can do to mediate”.
Mr Barrios said that the only reason that he convened the meeting with the Applicant was to “hear his concerns and to remind him that it was his choice to be in the union or not”.
The Respondent submitted that I should accept this evidence. Counsel for the Respondent submitted to me that “on a fair reading of the transcript not only has he denied it but it’s very plain that not only does the conduct not amount to coercive conduct, but the language used in the context in which the language was used, doesn’t bespeak an intention to coerce the applicant to do anything”.
Counsel urged me to accept that the conversation “was a discussion in respect of which Mr Barrios was trying to give the Applicant some practical industrial advice”.
I cannot accept this submission and I cannot accept the evidence of Mr Barrios as to his intention. I have listened carefully to the conversation a number of times. There is simply no call for Mr Barrios to be giving the Applicant “practical industrial advice”. Mr Barrios did not explain why it was that he felt that he needed to, or should, give such advice to the Applicant.
Mr Barrios did not want to hear the concerns of the Applicant despite what he has said in evidence. In the conversation that was recorded, after Mr Barrios asked if there was anything he could do to make the Applicant feel comfortable so that he could “actually pay the union and be on an EBA job”, the Applicant raised that Multiplex had put up a poster which said that workers did not have to do be union members. Mr Barrios immediately undermined the concerns of the Applicant as I have earlier related. To attempt to portray this exchange as “wanting to hear the concerns of the Applicant” is disingenuous.
I watched Mr Barrios intently as he gave his evidence on this point. His body language and mannerisms did not match what he was actually saying. I do not accept that he was truthful but was rather trying to put a “gloss” on the conversation in an attempt to hide the true sinister nature of it.
Because I do not accept the evidence of Mr Barrios on this point, the Respondent has failed to discharge the onus.
I find that the Respondent has contravened s.348 of the FW Act in that Mr Barrios attempted to coerce the Applicant into re-joining the CFMEU and paying his union dues by threatening the Applicant that he could not work on an EBA job unless he paid the union and that if he didn’t pay the union, he would be employed elsewhere for a wage that “sucked”.
The Adverse Action Claim
The Applicant claims that the Respondent has taken adverse action against him pursuant to s.340(1)(a)(ii) of the FW Act. The effect of this section is that the Applicant alleges that the Respondent has taken adverse action against him because he has exercised a workplace right.
Was there a workplace right?
The Applicant has pleaded that his workplace right was making the complaints to WorkSafe and the CFMEU hotline respectively. The Applicant claims that this is a workplace right pursuant to s.341(1)(c)(i). That section relevantly provides:-
(1) A person has a workplace right if the person:
(c) is able to make a complaint or inquiry:
(i) to a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrument;
The Respondent submits that the Applicant has failed to identify under what “workplace law” either the CFMEU or WorkSafe has the capacity to seek compliance with that law. The Applicant has, in effect, said that he is not legally trained but claims that there must be such a law that allowed him to make his complaints.
During the course of submissions, I put to Counsel for the Respondent that there must be some law that prohibits persons interfering with the scene of an industrial accident. After all, the evidence of the Applicant was that he was disturbed that “protocol” had not been followed. As Counsel for the Respondent submitted to me, it is for this Court to be satisfied that there is a workplace law.
During the submissions, s.39 of the Work Health and Safety Act 2011 (Qld) (“the WHS Act”) was discovered by the Court. Relevantly that section reads as follows:-
39 DUTY TO PRESERVE INCIDENT SITES
(1) The person with management or control of a workplace at which a notifiable incident has occurred must ensure so far as is reasonably practicable, that the site where the incident occurred is not disturbed until an inspector arrives at the site or any earlier time that an inspector directs.
Penalty—
Maximum penalty—100 penalty units.
(2) In subsection (1) a reference to a site includes any plant, substance, structure or thing associated with the notifiable incident.
(3) Subsection (1) does not prevent any action—
(a) to assist an injured person; or
(b) to remove a deceased person; or
(c) that is essential to make the site safe or to minimise the risk of a further notifiable incident; or
(d) that is associated with a police investigation; or
(e) for which an inspector or the regulator has given permission.
I am satisfied that WorkSafe is a body that has the capacity to seek compliance with s.39 of the WHS Act.
By virtue of division two of part seven of the WHS Act, I am satisfied that CFMEU officials, who are also WHS entry permit holders, have the capacity to enter the worksite and to enquire into suspected contraventions, which include contraventions of s.39 of the WHS Act.
I find that if a worker saw what could be a deliberate flouting of s.39 of the WHS Act and complained to WorkSafe, that worker would be exercising a workplace right.
I also find that if a worker saw what could be a deliberate flouting of s.39 of the WHS Act and complained to the CFMEU, that worker would be exercising a workplace right.
Did the Applicant exercise a workplace right?
The Respondent does not admit that the Applicant made the complaints that he claims to have made. There are no records of either body that have been produced to the Court to verify that such a complaint was made.
However, the Applicant has been consistent in his evidence that this is what he did. The emails that he sent to union officials in April 2018 illustrate that this incident had been a long-running concern of the Applicant. In the meeting with union officials on 1 May 2018, there is conversation about the complaints that the Applicant has made since the time of the accident.
The evidence of Sean Johnson and Daniel Wilson leave me with the impression that the Applicant was constantly reminding others that he had made complaints and that these had not been acted upon. The evidence of Mr Johnson and Mr Wilson leave me with the very clear impression that the Applicant was like the proverbial “dog with a bone” of which he simply would not let go.
The Applicant was, as I have earlier remarked, a very honest witness. He said, quite candidly, that he wished he had not seen the accident because, having seen the accident, his duty was clear and he feels as if he has suffered for that ever since.
Taking all of those aspects into account, I find that the Applicant did contact WorkSafe and complain to them about the accident and particularly that management had interfered with the accident site before the inspector could view that site. I am satisfied that this occurred on or about 4 October 2017.
I also find that the Applicant did contact the CFMEU hotline and reported to them his concerns about the accident and particularly that management had “covered up” the accident site. I am satisfied that this occurred on or about 4 October 2017.
The Dismissal and Reversal of Onus
The Applicant has claimed that his termination of employment was adverse action. There is no debate about this conclusion being correct.
The Applicant has claimed that the adverse action occurred because of his exercise of a workplace right; in other words, pursuant to s.360 of the FW Act, the reasons for the adverse action include the fact that he had made complaints to WorkSafe and the CFMEU hotline.
Because those circumstances have been established, the provisions of s.361 of the FW Act apply. That section provides:-
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 that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise.
This has the effect of reversing the onus. It is now for the Respondent to prove to the Court that they did not dismiss the Applicant for the prohibited reason. In other words, can the Respondent prove that they did not dismiss the Applicant partly because he made the complaints to WorkSafe or the CFMEU on or about 4 October 2017?
In Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500 the High Court said at paragraph [45]
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.
Evidence of Mr Barrios, the decision-maker
The clear evidence of Mr Barrios was that work at the project was beginning to wind down. He said that Tower Three was almost finished by May 2018 and that there was no need for two patchers to be assigned to that tower any more. He said that there was not sufficient work on the whole of the site to justify employing six patchers overall. He said that it was not just patchers that he looked at but also carpenters, scaffolders and general labourers. He said that, on 11 May 2018, he dismissed nine employees overall; two labourers, one scaffolder, five carpenters and one patcher, that patcher being the Applicant.
Mr Barrios said that he only considered that it was either Applicant or the other patcher on Tower Three, Shane Thompson, who should be let go. Because he felt that Thomson was more experienced, he decided that the Applicant should be terminated.
He said that because the Applicant was a daily hire employee, he did all that he needed to do, according to the Award, with respect to the dismissal of the Applicant.
He said that he did not know that the Applicant had made the complaint to the CFMEU nor that he made a complaint to WorkSafe. But, he said, even if he did know that, this would not be a reason for the dismissal. He reiterated that the only reason for dismissal was the lack of work.
It was submitted, on behalf of the Respondent, that if the Respondent had any problem with the Applicant making his complaints, the Respondent would not have continued to offer the Applicant overtime as occurred for the subsequent seven months after the complaint was made.
Is there Contradictory Evidence?
The evidence of the Applicant, Mr Johnson and Mr Wilson taken together with the recordings and the other documentary material gives me a reasonably clear indication of what has occurred with respect to the employment of the Applicant.
The Applicant is very passionate about workplace safety. It is this passion that gave him no other choice but to speak up when he saw what he perceived to be “injustices” regarding the accident of Mr Whittle. He made his feelings known to anyone whether they wanted to know what his feelings were or not.
I accept the Applicant’s evidence that he told Mr Barrios upon Mr Barrios’ return to work in October 2017 of his concerns and anger at what had happened with respect to the Whittle accident. I find that Heinrich management, Multiplex management, on-site delegates of the CFMEU and officials of the CFMEU all knew that the Applicant was unhappy, and extremely critical, of the manner in which the “Whittle incident” was handled.
I find that the CFMEU officials knew that the Applicant was refusing to pay his union dues because of the inaction by the union over the Whittle accident as well as other general concerns about safety on the worksite. On the evidence before me, I conclude that the CFMEU officials were unhappy that the Applicant was refusing to pay his dues.
I can safely infer that the CFMEU made their displeasure known to “Hoss” Heinrich and “Hoss” Heinrich then authorised the CFMEU to inform Mr Barrios of the delinquency of the Applicant. Mr Barrios then spoke to the Applicant in the manner that has already been detailed in these reasons.
After the Applicant had spoken to Mr Barrios, he spoke to the union officials again. I am satisfied that the flavour of this conversation was that if the Applicant paid his union dues that he would have no problems with the security of his employment but that if he chose not to pay his dues, there would be no security of employment.
The Applicant made the union officials even more upset with him following the serious workplace injury to a rigger in early May 2018. I accept that there was anger vented at the Applicant by CFMEU officials on 10 May 2018. I also accept the evidence of Mr Wilson who said that CFMEU delegate, Ryan Whakaruru, said words to the effect that he (Mr Whakaruru) wanted the Applicant off the job. Mr Whakaruru denied this. Having watched carefully the manner in which Mr Whakaruru gave his evidence, I do not accept his denial.
I accept the evidence of the Applicant, corroborated to an extent by Mr Johnson, that he is an extremely good worker and a very competent patcher. I accept that because of his skills that he was given more autonomy than other patchers because he could be trusted to complete his tasks with less oversight. I note the comments by the union officials that there were no problems with the standards of the work of the Applicant and I also note the comments of Mr Barrios who said that he had no issues with the Applicant’s work.
Conclusion on Evidence of Mr Barrios
In weighing up what Mr Barrios has said with all of the other witnesses, I am not convinced that the sole reason that the Applicant was dismissed was because of lack of work. I accept the evidence of Mr Barrios that there was a slowdown in work as the project neared completion. I accept the evidence of Mr Barrios that he needed to terminate the employment of nine employees.
I do not accept the evidence that the only reason that the Applicant was dismissed was that Mr Barrios considered that he was less experienced than Mr Thompson and that he should only choose one of the two patchers that had been working on Tower 3 for termination.
It is far too coincidental that the Applicant was dismissed in the circumstances I have already outlined. The Applicant had been defiant and had refused to be part of the union because of his concerns that they were not doing enough in regards to safety at the worksite. Mr Barrios had tried to get the Applicant to pay his dues. The Applicant refused. The union also attempted to get the Applicant to pay his dues. The union said that if he paid his dues that he would “be here for another 12 months”, but if he didn’t pay then “Hoss” would be informed and that they couldn’t “say what Hoss won’t do if you don’t move forward, but I think you already know”.
The Applicant then had another clash with CFMEU officials where one official said that he wanted the Applicant off the job.
The Applicant is an experienced patcher whose work is very good and who needs little oversight. I do not accept that Mr Barrios would only look at one of two patchers as possible redundancies because they happen to work on Tower Three. I would think that Mr Barrios would look at all six patchers and decide which patcher would least contribute to the remaining tasks that needed to be completed on the project, in deciding which patcher should be dismissed. On the evidence before me, I could not see that the Applicant would be the person who would appropriately fit this category.
I do not accept that the Applicant was chosen as the patcher to be made redundant simply because he was, in the eyes of Mr Barrios, the least experienced patcher working on Tower Three.
But the question that I have to do decide is not whether the Respondent has discharged their onus as to the reasons they give as to why they dismissed the Applicant; rather it is whether the Respondent has discharged their onus as to whether the Applicant’s exercising of his workplace right was part of the reason for his dismissal.
It may be said that the Applicant, in making the complaints that he did back on 4 October 2017, set in train the events that led up to the decision that was made on 11 May 2018. But that is not what has been pleaded.
The Applicant has said that part of the reason that he was dismissed was because he made two specific complaints on or about 4 October 2017. This was the factual scenario upon which the Respondent was required to answer. The authorities to which I have previously referred are just as apposite in looking that the “adverse action” claim as they were in looking at the “coercion” claim.
The Applicant made a number of complaints about the events surrounding the accident with Mr Whittle. I am of the view that the Respondent knew that the Applicant had made a number of complaints.
However, the Respondent has given clear evidence that they did not know that the Applicant had made those specific complaints on or about 4 October 2017. I accept that the Respondent knew that the Applicant was unhappy about all that had transpired regarding the accident but this does not automatically mean that they knew that the Applicant had specifically made those complaints on or about 4 October 2017.
The Applicant provided no evidence that would suggest that Mr Barrios could have known that he, the Applicant, had made those specific complaints on or about 4 October 2017. The conversation between the Applicant and Mr Barrios that took place after Mr Barrios returned from holidays in October 2017, was not one in which the Applicant told Mr Barrios that he had made complaints, even though I accept that he did tell Mr Barrios of his concerns as to the actions of the union.
On the evidence before me, it would seem that the fact that there was “trouble” between the union and the Applicant was the main precipitant in the choice of which patcher was to be made redundant. The reason why there was trouble between the union and the Applicant was not really the issue for the Respondent; rather it was the mere fact that there was trouble between them.
I accept the evidence of Mr Barrios that he did not know that the Applicant had made the specific complaint on, or about, 4 October 2017 to WorkSafe. I also accept the evidence of Mr Barrios that he did not know that the Applicant had made the specific complaint on, or about, 4 October 2017, to the CFMEU hotline.
Having come to that conclusion, it follows that I find that Mr Barrios did not dismiss the Applicant partly because the Applicant exercised a workplace right, because Mr Barrios did not know that the Applicant had exercised that workplace right.
The Respondent has, therefore, discharged their onus. The adverse action claim, therefore, fails.
Conclusion
The Applicant has been treated quite unfairly by the Respondent. He was not informed that he was employed as a daily hire employee. He was told that he was employed under an EBA that, in reality, did not cover him. He made legitimate complaints about safety which were seemingly ignored. He was pressured by the Respondent to pay his union dues. And he was dismissed predominantly because he was causing trouble with the union.
But he has been successful in one of his claims. I will make the appropriate declaration in relation to the “coercion” claim and dismiss all other claims.
I will adjourn the proceedings so that the parties can make submissions as to penalty under s.546 and compensation under s.545(2)(b).
I certify that the preceding two hundred and twenty-two (222) paragraphs are a true copy of the reasons for judgment of Judge Vasta
Date: 12 December 2019
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