United Firefighters Union of Australia v Easy - [2013] FCA 763

FEDERAL COURT OF AUSTRALIA
United Firefighters Union of Australia v Easy [2013] FCA 763

Citation: United Firefighters Union of Australia v Easy [2013] FCA 763

Parties: UNITED FIREFIGHTERS UNION OF AUSTRALIA & SOFIE ANTONAKIS v NICHOLAS EASY, PAMELA CAREY, DANIELLE BYRNES AND THE METROPOLITAN FIRE AND EMERGENCY SERVICES BOARD

File number: VID 445 of 2012

Judge: ROSS J

Date of judgment: 2 August 2013

Catchwords:
INDUSTRIAL LAW – employment - adverse action - whether wearing a union T-shirt constitutes industrial action - whether instituting an investigation into alleged misconduct by another employee is adverse action - whether removal of personal items from a workplace constitutes adverse action.

EVIDENCE - principles in Jones v Dunkel - witness not in the respondents’ camp - party not required to call a witness to give merely cumulative evidence.

Legislation: Fair Work Act 2009 (Cth) ss 19, 340, 341, 342, 346, 347, 360, 361 and 40

Cases cited:
Australasian Meat Industry Employees’ Union v Belandra Pty Ltd [2003] FCA 910; (2003) 126 IR 165,

Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union and Another v The Age Company Limited PR946290

Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Visy PackagingPty Ltd (No 3) [2013] FCA 525

Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 290 ALR 647

Community and Public Sector Union and Another v Telstra Corporation Limited [2001] FCA 267; (2001) 107 FCR 93

Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd and Steven Rae [2010] FCA 590

Construction, Forestry, Mining and Energy Union v Coal and Allied Operations Pty Ltd [1999] FCA 1531; (1999) 140 IR 131

Construction, Forestry, Mining and Energy Union v Coal & Allied Mining Services Pty Ltd (Mount Thorley Operations/Warkworth Mining) (2008) 175 IR 243

Construction, Forestry, Mining and Energy Union and Orsv Full Bench of the Australian Industrial Relations Commission and Ors [1998] FCA 1404; (1998) 89 FCR 200

Cubillo v Commonwealth [2000] FCA 1084; (2000) 174 ALR 97

Davids Distribution Pty Ltd v National Union of Workers [1999] FCA 1108; (1999) 91 FCR 463

Director, Office of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2013] FCAFC 8

Earle v Castlemaine District Community Hospital [1974] VR 722

General Motors-Holden’s Pty Ltd v Bowling (1976) 51 ALJR 235

Jones v Dunkel (1959) 101 CLR 298, [1959] HCA 8

Jones v Queensland Tertiary Admissions Centre (No. 2) [2010] FCA 399, (2010) 186 FCR 22

Kimpton v Minister for Education of Victoria (1996) 65 IR 317

Maritime Union of Australia v Geraldton Port Authority [1999] FCA 899; (1999) 93 FCR 34

Patrick Stevedores Operations No. 2 Pty Ltd v Maritime Union of Australia (1998) 195 CLR 1

Payne v Parker [1976] 1 NSWLR 191

Police Federation of Australia and Anor v Nixon and Anor [2008] FCA 467; (2008) 168 FCR 340

Re Mornington Peninsula Shire Council [2011] FWAFB 4809

Rojas v Esselte Australia Pty Ltd(No. 2) [2008] FCA 1585; (2008) 177 IR 306

Seymour v Saint-Gobain Abrasives Pty Ltd [2006] FCA 1452; (2006) 161 IR 9

United Firefighters’ Union of Australia v Metropolitan Fire and Emergency Services Board [2003] FCA 480; (2003) 198 ALR 466

WA Supply Co Ltd v The Registrar of Friendly Societies (1904) 6 WALR 199

Date of hearing: 5, 6, 7 and 19 February and 15 April 2013

Date of last submissions: 9 April 2013 (Respondent) 11 April 2013 (Applicant)

Place: Melbourne

Division: FAIR WORK DIVISON

Category: Catchwords

Number of paragraphs: 337

Counsel for the Applicant: Ms S Bingham

Solicitor for the Applicant: Davies Lawyers

Counsel for the Respondent: Mr F Parry SC and Ms C Harris

Solicitor for the Respondent: Corrs Chambers Westgarth

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

FAIR WORK DIVISION

VID 445 of 2012

BETWEEN:
UNITED FIREFIGHTERS UNION OF AUSTRALIA
First Applicant

SOFIE ANTONAKIS
Second Applicant

AND:
NICHOLAS EASY
First Respondent

PAMELA CAREY
Second Respondent

DANIELLE BYRNES
Third Respondent

METROPOLITAN FIRE AND EMERGENCY SERVICES BOARD
Fourth Respondent

JUDGE:

ROSS J

DATE OF ORDER:

2 AUGUST 2013

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:
1. The application is dismissed.

Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

FAIR WORK DIVISION

VID 445 of 2012

BETWEEN:
UNITED FIREFIGHTERS UNION OF AUSTRALIA
First Applicant

SOFIE ANTONAKIS
Second Applicant

AND:
NICHOLAS EASY
First Respondent

PAMELA CAREY
Second Respondent

DANIELLE BYRNES
Third Respondent

METROPOLITAN FIRE AND EMERGENCY SERVICES BOARD
Fourth Respondent

JUDGE:

ROSS J

DATE:

2 AUGUST 2013

PLACE:

MELBOURNE

REASONS FOR JUDGMENT
1. BACKGROUND

The United Firefighters’ Union (the UFU) and Ms Sofie Antonakis allege that the respondents have contravened the Fair Work Act 2009 (Cth) (the Act) in that they have taken adverse action against Ms Antonakis because she:
(a)exercised a workplace right in that she was able to participate in protected industrial action,[1] and she initiated or participated in a process or proceeding under workplace law namely these proceedings[2]; and
(b)engaged in an industrial activity namely the Industrial Action,[3] defined by the applicants as action the subject of a ‘question with respect to proposed industrial action’ in a protected ballot order in the following terms:
Do you for the purpose of advancing claims and the negotiation of an enterprise agreement with the Metropolitan Fire & Emergency Board, authorise industrial action in the form of wearing, distributing and posting union campaign material such as t-shirts, badges, written communications and stickers in support of the proposed enterprise agreement?[4]
[1] See par 40 of the Amended Statement of Claim (ASOC)
[2] See par 69 of the ASOC.
[3] See par 40 of the ASOC
[4] See par 14 of the ASOC
The applicants seek relief in the form of declarations, the imposition of penalties and compensation for Ms Antonakis. They do not press injunctive relief.
The conduct which is alleged to constitute the adverse action occurred during the following periods:
(a)18 May to 22 May 2012 inclusive;
(b)19 October to 13 November inclusive; and
(c)26 November 2012.[5]
[5] Ms Antonakis initially claimed that the MFB breached her contract of employment but this claim is not pressed. The proceedings were issued by the applicants on 29 June 2012 and later amended to include the additional claims associated with the adverse action alleged to have taken place between 19 October 2012 and 13 November 2012 and on 26 November 2012.
The first applicant, the UFU, is a registered organisation pursuant to the Fair Work (Registered Organisations) Act2009 (Cth) and is a person who may apply for orders in relation to a contravention of a provision in Part 3-1 General Protections of the Act.[6] At all relevant times the second applicant, Ms Sofie Antonakis, was (and is) an employee of the Metropolitan Fire and Emergency Services Board (the MFB). In November 2011 Ms Antonakis became (and remains) a member of the UFU.[7]
[6] See s 539 Fair Work Act 2009 (Cth)
[7] Joint Exhibit 1 at Tab 5
The MFB (the fourth respondent) is a body corporate with perpetual succession and is capable of being sued in its own name.[8] The MFB is a ‘public entity’ as defined in s 5 of the Public Administration Act 2004 (Vic).
[8] See s 6 of the Metropolitan Fire Brigades Act 1958 (Vic)
Mr Nicholas Easy (the first respondent) is (and was at all relevant times) the Chief Executive Officer of the MFB and a member of the MFB’s Executive Leadership Team. Mr Easy is responsible for the employment, management and control of all MFB employees and the overall direction, management and supervision of the MFB’s operations.
At all relevant times, Ms Pamela Carey (the third respondent) was the Executive Assistant to Mr Easy.
At all relevant times, Ms Danielle Byrnes (the second respondent) was an employee of the MFB and a member of the Executive Leadership Team of the MFB. Ms Byrnes reported directly to Mr Easy, and was the Executive Director of People and Culture for the MFB. Ms Antonakis is Ms Byrnes’ Executive Assistant.
Before turning to the relevant conduct I propose to deal with some broad contextual matters.
On 1 April 2011, the UFU commenced bargaining with the MFB for the purpose of negotiating an enterprise agreement to cover technical and corporate employees of the MFB, in accordance with the provisions of Part 2-4 of the Act. The UFU and MFB are bargaining representatives in respect of the proposed agreement, as defined in s 176 of the Act.
The UFU’s claim on behalf of the corporate and technical employees was in writing and was provided to the MFB.
On 24 June 2011, pursuant to s 240 of the Act the UFU applied to Fair Work Australia (the Tribunal) requesting that the Tribunal deal with a dispute about the agreement that could not be resolved by the UFU and the MFB.
On 14 and 22 July 2011, the Tribunal conciliated the dispute and, from 18 August 2011, the UFU and the MFB negotiated weekly with respect to the terms of the proposed enterprise agreement. On or around 29 March 2012 the UFU:
(a)sought to organise industrial action for the purpose of supporting or advancing claims in relation to the proposed enterprise agreement; and
(b)made an application to the Tribunal for an order requiring that a protected action ballot be conducted to determine whether the employees whose employment is to be covered by the proposed enterprise agreement, including Ms Antonakis, wish to engage in the particular protected industrial action for the proposed agreement.
On 29 March 2012, the Tribunal made a protected action ballot order[9] in the following terms:
‘Do you for the purpose of advancing claims and the negotiation of an enterprise agreement with the Metropolitan Fire & Emergency Board, authorise industrial action in the form of wearing, distributing and posting union campaign material such as t-shirts, badges, written communications and stickers in support of the proposed enterprise agreement?’ (the ‘Protected Action’)
[9] Joint Exhibit 1 at Tab 6
On 10 April 2012, the protected action ballot was commenced by the Australian Electoral Commission (the AEC) via post and on 24 April 2012 the ballot result was declared by the AEC.[10] On this basis, the applicants contend that the Protected Action was authorised by the employees whose employment would be covered by the proposed enterprise agreement.
[10] Exhibit A15
One of the issues in these proceedings is whether the wearing of a union t-shirt for the purpose of advancing claims in the context of the negotiation of an enterprise agreement constitutes ‘industrial action’ within the meaning of the Act. I return to this issue shortly.
On 1 May 2012, the UFU notified the MFB:
(a)of the intention of the employees whose employment would be covered by the proposed enterprise agreement to take industrial action pursuant to s 414 of the Act;
(b)that the industrial action would include the Protected Action; and
(c)that the Protected Action would commence at 9.00 am on 7 May 2012 and would be ongoing.
On 7 May 2012, some of the employees whose employment would be covered by the proposed enterprise agreement engaged in the Protected Action. Ms Antonakis was aware that the industrial action commenced on 7 May 2012[11] in the form of a four hour work stoppage. Ms Antonakis gave evidence that she did not participate in any industrial action prior to 18 May 2012.[12] She gave evidence specifically that she did not participate in the four hour stoppage on 7 May 2012, but had gone downstairs to visit colleagues. She did not consider she was engaging in industrial action.[13] While downstairs Mr Con Patralis, an MFB employee, handed a UFU t-shirt to Ms Antonakis.[14]
[11] Tn p 15 line 29
[12] Tn p 16 lines 9-16
[13] Tn p 51 lines 13-20
[14] Tn p 15 lines 46-47 and p 16 lines 1-2
The UFU t-shirt was a polo style shirt, navy blue in colour. The UFU logo on the t-shirt is located on the top left front corner of the shirt on the chest area. The logo is approximately 10 cm by 10 cm. The wearing of a UFU t-shirt by Ms Antonakis on 18 May 2012 is at the heart of one of the adverse action allegations.
Before turning to the specific allegations I propose to set out the relevant legislative context.
2. RELEVANT PROVISIONS OF THE FAIR WORK ACT 2009 (CTH)
Part 3-1 of the Act prohibits an employer from taking adverse action against an employee because, relevantly, that employee exercises a workplace right or engages in industrial activity.
Section 346 is one of the central provisions. It states, in part:
‘A person must not take adverse action against another person because the other person:
... (b) engages, or has at any time engaged or proposed to engage, in industrial activity within the meaning of paragraph 347(a) or (b) ...’ [emphasis added]
An employer contravenes s 346 if it can be said that engagement by the employee in an industrial activity was a ‘substantial and operative factor’ in the employer’s reasons for taking the action which constitutes ‘adverse action’ within the meaning of s 342.[15]
[15] General Motors-Holden’s Pty Ltd v Bowling (1976) 51 ALJR 235 at 241 per Mason J; approved in Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 290 ALR 647 at [59] and [62] per French CJ and Crennan J and at [104] per Gummow J and Hayne J
In relation to the allegations regarding the period from 18 May - 22 May 2012, it is alleged that the MFB took adverse action against Ms Antonakis because she had participated in protected industrial action; and further, or alternatively, because she had engaged in industrial action.
The applicants contend that Ms Antonakis participated in protected industrial action (or engaged in industrial action) by wearing a UFU t-shirt during the course of 18 May 2012. The respondents reject this proposition. I return to this issue shortly.
Section 347(f) provides that a person engages in industrial activity if the person ‘takes part in industrial action’.
The meaning of ‘engages in industrial activity’ is broader than taking part in industrial action and includes participating in ‘a lawful activity organised or promoted by an industrial association’ (s 347(b)(iii)). But it is important to note that the Amended Statement of Claim in these proceedings did not allege that Ms Antonakis had been engaged in any ‘industrial activity’ other than engaging in industrial action.
Section 340 is also important. It states, in part:
‘(1)     A person must not take adverse action against another person:
(a)       because the other person:
... (ii)    has ... exercised a workplace right; ...’ [emphasis added]
Section 341 sets out the meaning of a workplace right, relevantly:
‘(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.’
The meaning of the expression ‘a process or proceedings under a workplace law’ includes court proceedings under a workplace law and protected industrial action (s 341(2)(b) and (c)).
On 29 June 2012, the Federal Court proceedings in VID445/2012 were commenced by the UFU and Ms Antonakis. It is common ground that the proceedings are proceedings under a workplace law within the meaning of s 341(2) of the Act and that in instituting these proceedings Ms Antonakis was exercising a workplace right within the meaning of s 340(1)(a)(ii) of the Act.
Here it is alleged that the MFB took adverse action against Ms Antonakis because:
(a)she exercised a workplace right; and
(b)she engaged in industrial activity.
The table in s 342 sets out the circumstances in which a person takes ‘adverse action’ against another person. Relevantly, adverse action is taken by an employer against an employee if the employer:
(a)       dismisses the employee; or
(b)       injures the employee in his or her employment; or
(c)       alters the position of the employee to the employee’s prejudice; or
(d)      discriminates between the employee and other employees of the employer.
In Patrick Stevedores Operations No.2 Pty Ltd v Maritime Union of Australia[16] (Patricks) the High Court considered the meaning of a provision in essentially the same terms in a legislative antecedent to s 342 (i.e. s 298K of the Workplace Relations Act 1996 (Cth)). Their Honours (Brennan CJ, McHugh, Gummow, Kirby and Hayne JJ) held, (at [18]) that injuring an employee in his or her employment (now s 342(b)) covered ‘injury of any compensable kind’ and that altering an employee’s position to their prejudice (now s342(c)) was:
‘. . . a broad additional category which covers not only legal injury but any adverse affection of, or deterioration in, the advantages enjoyed by the employee before the conduct in question.’
[16] (1998) 195 CLR 1
In Patricks the majority of the High Court observed (at [20]) that the reorganisation of the companies within the Patrick Group resulted in the security of the employer companies’ businesses being ‘extremely tenuous’ with the ‘security of the employees’ employment [being] consequentially altered to their prejudice’. The reorganisation did not directly affect or alter any legal rights or obligations of the employees but it left their future employment less secure and hence had altered the position of the employees to their prejudice.
This characterisation of adverse action was adopted by the Full Court of this Court in Community andPublic Sector Union and Another v Telstra Corporation Limited.[17] In that matter the Court found (at [20]) that, for the purpose of redundancy eligibility, the addition of detrimental criteria to the criterion already provided by the relevant industrial instruments meant that:
‘... the employment of employees on awards or certified agreements had become less secure, in a real and substantial manner, than it had been previously.’
[17] (2001) 107 FCR 93 at [17]
In those circumstances the Court decided that the position of the relevant employees had been altered to their prejudice.[18]
[18] See Australian Meat Industry Employees’ Union v Belandra Pty Ltd (2003) 126 IR 165 at [70] per North J
Subsequent cases are illustrative of the range of circumstances which may amount to altering the position of an employee to their prejudice and hence constituting adverse action, for example:
·First
·the laying of employment-related disciplinary charges against an employee;[19]
·commencing an investigation into an employee’s conduct;[20]
·requiring an employee to participate in an investigatory process;[21]
·suspending an employee from duty;[22] and
·issuing a disciplinary warning to an employee.[23]
[19] United Firefighters’ Union of Australia v Metropolitan Fire and Emergency Services Board [2003] FCA 480; (2003) 198 ALR 466 at [89] per Goldberg J
[20] Jones v Queensland Tertiary Admissions Centre Ltd (No. 2) [2010] FCA 399; (2010) 186 FCR 22 at [80]-[82] per Gollier J; Automotive, Food, Metals, Engineering Printing and Kindred Industries Union v Visy Packaging Pty Ltd (No 3) [2013] FCA 525 (Visy (No 3)) at [103]-[105] per Murphy J
[21] Kimpton v Minister for Education of Victoria (1996) 65 IR 317 at 319 per North J
[22] Police Federation of Australia and Anor v Nixon and Anor [2008] FCA 467; (2008) 168 FCR 340 at [48] per Ryan J; Visy (No 3) at [107]-[115] per Murphy J
[23] Construction, Forestry, Mining and Energy Union v Coal and Allied Operations Pty Ltd [1999] FCA 1531; (1999) 140 IR 131 at [95] per Branson J; Visy (No 3) at [116]-[119] per Murphy J

Sections 360 and 361, in Div 7 of Pt 3-1, make it easier than it otherwise would be for an employee to establish a contravention of the protective provisions in Pt 3-1, including s 346. Section 360 provides that, for the purposes of Pt 3-1, ‘a person takes action for a particular reason if the reasons for the action include that reason’. Section 361(1), casts a burden of proof on an employer to show that it did not take action for a prohibited reason. It says:
If:
(a)in an application in relation to a contravention of this Part, it is alleged that a person took ... action for a particular reason ...; and
(b)taking that action for that reason ... would constitute a contravention of this Part;
it is presumed, in proceedings arising from the application, that the action was ... taken for that reason or with that intent, unless the person proves otherwise.
The following description of a legislative predecessor to s 361, given by Mason J in General Motors-Holden’s Pty Ltd v Bowling[24] remains pertinent:[25]
‘the plain purpose of the provision [is to throw] on to the defendant the onus of proving that which lies peculiarly within his own knowledge.’[26]
[24] (1976) 51 ALJR 235 at 241
[25] Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 290 ALR 647 at [50] per French CJ and Crennan J
[26] Also see Maritime Union of Australia v Geraldton Port Authority (1999) 93 FCR 34 at 68 per Nicholson J
The practical effect of s 361 is that in most cases an explanation of the real reason for the adverse action, consistent with the absence of a proscribed reason, is also necessary to rebut the presumption.[27] But it is important to note that s 361 does not obviate the need for the applicants to prove the existence of the objective facts which are said to provide the basis of the respondent’s conduct. The onus does not shift from the applicant to the respondent until the applicant establishes the elements of each of the general protections upon which it seeks to rely. It is not enough for the applicants to merely make assertions regarding these elements, they must be determined objectively.[28]
[27] Seymour v Saint-Gobain Abrasives Pty Ltd (2006) 161 IR 9 at [29] per Buchanan J; Rojas v Esselte Australia Pty Ltd(No. 2) (2008) 177 IR 306 at [48] per Moore J
[28] Construction, Forestry, Mining and Energy Union v Coal and Allied Operations Pty Ltd (1999) 140 IR 131 at [161]-[162] per Branson J; Rojas v Esselte Australia (No. 2) (2008) 177 IR 306 at [49] per Moore J; Construction, Forestry, Mining and Energy Union v BHP Coal and Steven Rae [2010] FCA 590; Jones v Queensland Tertiary Admissions Centre (No. 2) (2010) 186 FCR 22 at [10]
In the context of this case the applicants bear the onus of establishing - for example - that Ms Antonakis was engaging in protected industrial action at the relevant time and that adverse action was taken against her. If so established, the respondents then bear the onus of establishing that the adverse action was not taken because Ms Antonakis was engaged in protected industrial action.
Part 4-1 provides for civil remedies in respect of a contravention of ss 340 and 346. Section 550 of the Act provides that a person who is ‘involved’ in a contravention of a civil remedy provision is deemed to have contravened that provision.
The task of the Court in a proceeding such as this is to determine three factual questions:
(i)Was the employee engaged in an ‘industrial activity’(subject to the qualification mentioned at [27] infra)? (Or was the employee exercising a workplace right?)
(ii)Did the employer take ‘adverse action’ against the employee, within the meaning of s 342?
(iii)Did the employer take the adverse action against the employee because of a proscribed reason, or reasons which included that reason?
The question of why an employer took adverse action against an employee is a question of fact[29] and the application of s 346 turns on the word ‘because’. As Gummow and Hayne JJ observed in Board of Bendigo Regional Institute of Technical and Further Education v Barclay[30] (Barclay):
‘The use in s.346(b) of the term “because” in the expression “because the other person engages ... in industrial activity”, invites attention to the reasons why the decision-maker so acted. Section 360 stipulates that, for the purposes of provisions including s.346, while there may be multiple reasons for a particular action “a person takes action for a particular reason if the reasons for the action include that reason”. These provisions presented an issue of fact for decision by the primary judge.[31]
[29] Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 290 ALR 647 at [41] per French CJ and Crennan J and [101] per Gummow and Hayne JJ )
[30] ibid.
[31] ibid. at [101]
Evidence from the decision-maker which explains why the adverse action was taken will be relevant to the determination of this factual question. As French CJ and Crennan J observed in Barclay:
‘The imposition of the statutory presumption in s.361, and the correlative onus on employers, naturally and ordinarily mean that direct evidence of the decision maker as to state of mind, intent or purpose will bear upon the question of why adverse action was taken, although the central question remains “why was the adverse action taken” ...
... direct testimony from the decision maker is capable of discharging the burden upon an employer even though an employee may ... engage in industrial activity.’[32]
[32] ibid. at [44]-[45]
In determining an application under s 346 the Court is to assess whether the engagement of an employee in an ‘industrial activity’ was a ‘substantial and operative reason’, potentially among many reasons, for adverse action to be taken against that employee. In assessing the evidence led to discharge the onus upon the employer under s 361(1), the reliability and weight of such evidence is to be balanced against evidence adduced by the employee and the overall facts and circumstances of each case; but it is the reasons of the decision-maker at the time the adverse action is taken which is the focus of the inquiry.[33] The same approach is to be taken in respect of an application under s 340.
[33] ibid. at [127] per Gummow and Hayne JJ
I need to say something about my assessment of the witnesses who gave evidence in the proceedings before turning to the specific allegations.
The applicant, Ms Antonakis, and each of the named respondents (Mr Easy, Ms Carey and Ms Byrnes) gave evidence in the proceedings. In addition, Mr Blair Trask and Mr Casey Lee gave evidence. Mr Trask is the Director of Governance and Corporate Secretary at the MFB and Mr Lee is an industrial officer with the UFU.
I did not find Ms Antonakis to be a credible witness; her evidence appeared to be crafted to assist her case. Five particular matters have led me to exercise considerable caution in accepting any aspect of Ms Antonakis’ evidence which conflicted with the evidence of other witnesses in the proceeding.
(i)On her own admission Ms Antonakis’ memory of the events of 18 May 2012 was not clear and she acknowledged that she ‘tended to sometimes forget things’.[34]
[34] Tn p 59 lines 13-16 and 28-29
(ii)Aspects of Ms Antonakis’ evidence were inconsistent with the CCTV footage of the incident in and around Mr Easy’s office, which formed the basis of the first allegation. In her evidence Ms Antonakis denied that her interaction with Ms Carey was jovial[35] and said that she was not smiling when she came out of Mr Easy’s office but was ‘in a state of shock and disbelief’.[36] The CCTV footage gives a very different impression of these events. The interaction between Ms Carey and Ms Antonakis appears jovial - both are smiling, at each other. Further, Ms Antonakis appears to be smiling as she leaves Mr Easy’s office.
[35] Tn p 19 lines 24-25
[36] Tn p 61 lines 33-34
(iii)Parts of Ms Antonakis’ evidence and some of her actions were coloured by her antipathy towards Ms Byrnes.[37] Ms Antonakis does not want to continue working with Ms Byrnes and her preferred position - both prior to May 2012 and continuing to the present time - is that Ms Byrnes leave the MFB.[38] It is also notable that Ms Antonakis gave inconsistent evidence as to her relationship with Ms Byrnes; earlier in her evidence she said that before the events of 18 May 2012 the relationship ‘was fine’.[39]
[37] For example, see Tn p 65 lines 9-47; p 66 lines 1-34; p 94 lines 20-35
[38] Tn p 78 lines 4-14; p 57 lines 15-25
[39] Tn p 52 lines 1-2
(iv)Ms Antonakis was somewhat guarded and evasive under cross-examination.[40]
[40] For example, Tn p 53 lines 11-12 and Tn p 66 lines 12-13
(v)Aspects of Ms Antonakis’ evidence simply lacked credibility. An example serves to illustrate this point. In her role as Ms Byrnes’ executive assistant Ms Antonakis had access to Ms Byrnes’ emails, inbox, sent and deleted items.[41] Exhibit MFB 6 is a letter from the applicant’s solicitors to the respondent’s solicitors, dated 31 January 2013. The letter states:
[41] Tn p 33 lines 4-7
‘We are instructed that Ms Byrnes sent documentation to her hotmail address throughout 2011. We now require your clients discover all emails sent by Ms Byrnes to her hotmail address. In particular, we refer to email sent: ...’
The letter goes on to particularise some 32 emails sent by Ms Byrnes in the period from 2 July 2011 to 10 May 2012, and then states:
‘In addition we understand that Danielle Byrnes created two documents entitled ‘Sofie notes July 2012’ and ‘File note re adverse action claim Danielle Byrnes 25 October 2012’. We do not consider that these documents should be privileged and require discovery of same.
In addition we have previously made reference to the fact that Danielle Byrnes sent emails regarding comments about her co-workers, including Mr Nick Easy ... We require discovery of the emails between Ms Byrnes and other staff members including but not limited to the following: ...’
The letter goes on to particularise a further 15 emails sent by Ms Byrnes in the period from 15 February 2011 to 25 October 2012.
During cross-examination Ms Antonakis acknowledged that she had provided her solicitors with copies of the emails referred to in Exhibit MFB 6. The emails were taken off Ms Byrnes’ sent box by Ms Antonakis and printed out at the MFB.[42] Ms Antonakis provided these emails to her solicitors to assist in her case against the MFB and Ms Byrnes.[43] Ms Antonakis’ actions in this regard were not authorised by Ms Byrnes.[44] An issue in contention was whether Ms Antonakis had conducted a search of Ms Byrnes’ sent box for the purpose of finding emails that would assist her case. It is this aspect of Ms Antonakis’ evidence which lacks veracity. The following exchanges during cross-examination are relevant:
[42] Tn p 79 lines 7-9
[43] Tn p 79 lines 12-14
[44] Tn p 79 lines 41-45
‘Counsel:You see, this would appear that you have spent time in the last few months conducting searches of Ms Byrnes’ outbox, sent box, doesn’t it?
Ms Antonakis: No, I didn’t.
Counsel:Well, I suggest to you what this indicates is, you’ve spent some of the last few months, whilst this litigation is in place, searching through emails that had been sent by Ms Byrnes to her home email, correct?
Ms Antonakis: I knew that they were there. I had seen them from when she had sent them...[45]
[45] Tn p 79 lines 23-29
Counsel:I suggest that you were looking at two emails, Sofie Notes July 2012 and File Note Re Adverse Action Claim Danielle Byrnes 25 October 2012, in looking at these documents, in no sense are you performing your role as executive assistant to Danielle Byrnes, are you?
Ms Antonakis: I found them during the course of my role as executive assistant to Danielle Byrnes.
Counsel:You found them conducting a search for material that would help you in this case, didn’t you?
Ms Antonakis: No, I did not.
Counsel:Well, there’s no reason for you to go looking through Ms Byrnes’ outbox?
Ms Antonakis: There is, because on many occasions she asks me to look for emails, she can’t remember where they are.
Counsel: She didn’t ask you to look for these emails, did she?
Ms Antonakis: No, she didn’t ask for these ones, no.
Counsel: You did this secretly, didn’t you?
Ms Antonakis: No, I didn’t do it secretly. I found them when I was doing other searches for documents she wanted me to look for.’[46]
Ms Byrnes’ evidence was that she sent some 12,000 emails in the period in which the emails printed by Ms Antonakis were sent.[47] Ms Byrnes also said that Ms Antonakis had no reason to go into her sent box: ‘I don’t have any expectation that an EA would read my sent mail. In fact, I consider my sent mail to be private other than if I want an assistant to be included in a sent item, I will cc them or I will give them quite explicit instruction about what it is that they’re required to do ...’.[48] Ms Byrnes did not make any requests about searching any of the emails in her sent box.[49] Ms Byrnes was not cross-examined in respect of this part of her evidence.
[46] Tn p 81 lines 4-21
[47] Tn p 231
[48] Tn p 231 lines 15-18
[49] Tn p 231 lines 20-40
It is highly unlikely that Ms Antonakis was able to recall specific emails among the 12,000 emails sent by Ms Byrnes over the course of 2011 and 2012. I reject Ms Antonakis’ evidence in this regard and find that she did in fact search Ms Byrnes’ sent box for the purpose of identifying emails which would assist her case.
In contrast to Ms Antonakis, I found Ms Carey and Ms Byrnes to be frank, credible witnesses. They answered questions in a spontaneous, unguarded fashion and made admissions against their interest.
It is convenient to deal here with the applicants’ contention that Ms Byrnes’ evidence was coloured by the fact that she felt betrayed by Ms Antonakis. This contention arises from Ms Byrnes’ evidence about her reaction to Ms Antonakis’ actions in wearing a UFU t-shirt and in instituting these proceedings. Ms Antonakis wore a UFU t-shirt at work on 18 May 2013. I return to this incident in more detail shortly. In her file note recording the events of that day Ms Byrnes says:
‘The wearing of a UFU T-shirt by an executive assistant was notable and whether or not Sofie had considered the effect, it made a statement. . . I felt a sense of professional betrayal and disappointment that Sofie was wearing the T-shirt. It appears to represent an alignment with an organisation who has worked against the interests of me and my office.’
Ms Byrnes was cross examined about this file note:
‘Counsel:And I suggest to you your view is that your EA cannot be a member of the UFU and work for you?
Ms Byrnes:That’s not the case. But when I saw Sofie wearing the t-shirt, as I said in my previously in my evidence, it didn’t occur to me that she was participating in industrial action. But what I did think was she was signalling to me was loyalty to the UFU.
Counsel: And these proceedings, naming you in them is another act of that betrayal, isn’t it? That’s how you perceive it?
Ms Byrnes:I don’t think you would be human if you were to say that it’s not disappointing and unpleasant to be involved in legal matters.
Counsel: You perceive this as an act of betrayal by Ms Antonakis, taking these proceedings?
Ms Byrnes      I’m actually more confounded by it. I don’t understand it.
Counsel:         So wearing the t-shirt was an act of betrayal.
Ms Byrnes:      Yes.
Counsel: And in your view, issuing these proceedings was another act of betrayal, wasn’t it?
Ms Byrnes:I might have experienced it like that on an emotional level. But it doesn’t mean that she doesn’t have the right.’[50]
[50] Tn p 234 lines 22-39
Contrary to the applicants submission, this aspect of Ms Byrnes’ evidence does not lead me to form an adverse view as to Ms Byrnes’ credit. Ms Byrnes was simply giving a frank and honest assessment of her reaction to Ms Antonakis’ actions. Such a reaction is understandable having regard to the context, in particular:
·Ms Antonakis was Ms Byrnes’ executive assistant, a role which involved a high level of trust.
·Ms Byrnes leads the MFB’s Employee Relations Team which has responsibility for managing negotiations with the UFU.
·Ms Byrnes has personally been the subject of derogatory and inappropriate UFU bulletins.[51]
·Ms Antonakis had previously told Ms Byrnes, on 1 May 2012, that she was not a UFU member and did not intend to participate in the bans (see [172] - [175] infra).
[51] As mentioned in Tab 22 of Joint Exhibit 1, also see Exhibit A8
I also found Messrs Lee, Easy and Trask to be credible witnesses, though Mr Easy and Mr Trask were somewhat guarded in their responses under cross-examination.
3. THE ALLEGATIONS
The allegations of adverse action can be conveniently divided into three periods:
·the events of 18 May 2012 and the instigation by the MFB of an investigation into those events (18 May - 22 May 2012 inclusive);
·the events since the institution of the Federal Court proceedings (19 October - 13 November 2012 inclusive); and
·the incident involving a number of Ms Antonakis’ personal items.
3.1                  The Events of 18-22 May 2012
(i)    18 May 2012
(a)     First interaction between Ms Antonakis and Ms Byrnes
I propose to first deal with what happened on 18 May 2012 before turning to the allegations of adverse action and discrimination.
On the morning of 18 May 2012 Ms Antonakis attended her workplace. At that time she was not wearing a UFU t-shirt. At 12.23 pm Ms Antonakis sent an email to her fiancé in the following terms:
‘Hey I just put a UFU top over the top I am currently wearing - did because I am feeling cold but also to see what kind of reaction I get.
I will probably annoy her and I guess that is a plus.’[52]
[52] Joint Exhibit 1 at Tab 17
The ‘her’ mentioned in the email is a reference to Ms Byrnes.[53] Ms Antonakis’ fiancé replied, at 12.23 pm:
‘Oh well, if you’re cold what are you to do. Its a bonus if you get a reaction.’[54]
[53] Tn p 58 line 17
[54] ibid.
Ms Antonakis replied at 12.39 pm:
‘She hasn’t seen me yet.’[55]
[55] ibid.
At some time shortly after 12.40 pm Ms Antonakis put on the UFU t-shirt, and wore it while performing her duties in the executive suite of the MFB premises at 456 Albert Street, East Melbourne.
Sometime shortly after 12.40 pm Ms Antonakis went into Ms Byrnes’ office. In cross-examination Ms Antonakis rejected the suggestion that she had walked into Ms Byrnes’ office to make ‘absolutely sure’ that Ms Byrnes saw her wearing the UFU t-shirt. According to Ms Antonakis she had some paperwork to give to Ms Byrnes and that is why she went into her office.[56] I reject this aspect of Ms Antonakis’ evidence and find that she entered Ms Byrnes’ office wearing the UFU t-shirt in order to get a reaction from Ms Byrnes. Such a finding is supported by the email exchange between Ms Antonakis and her fiancé, shortly before she entered Ms Byrnes’ office. There is a dispute as to what was said during this brief interaction between Ms Antonakis and Ms Byrnes.
[56] Tn p 59 lines 31-37
It is common ground that Ms Byrnes said ‘you’ve got a UFU T-shirt on’[57] and that she asked Ms Antonakis if she had bought the t-shirt and that Ms Antonakis replied ‘no, they were handed out.’[58] According to Ms Antonakis that was the extent of the exchange.
[57] Tn p 59 lines 40-41
[58] Tn p 60 lines 1-4
Ms Byrnes’ evidence about this interaction is as follows:
‘I said, “Oh, you’re wearing a UFU T-shirt.” She said, “Yes. I was cold.” And I accepted that explanation without question, because I know that she feels cold. She talks about being cold in the office frequently. And I - and I said to her, “Did you buy one?” Because I don’t know where people get them from. And she “Oh, they’re handing them out at the rally.” And I said, “Okay, well, I can’t say I’m thrilled to see you wearing it, but fine.” And that was the end of that conversation.’[59]
[59] Tn p 210 lines 19-32; also see Tn p 238 lines 7-19

Ms Antonakis was cross-examined about what was said during this exchange and said that she could not recall saying ‘Yes, I’m wearing it because I’m cold’.[60] Ms Antonakis also denied that Ms Byrnes said ‘Well I can’t say I’m happy about it’ or words to that effect. According to Ms Antonakis, Ms Byrnes made this comment to her later in the day, after the incident in Mr Easy’s office.[61] Ms Byrnes was also asked about when she made the statement attributed to her:
‘Ms Antonakis has told the court that that was a comment you made at 3 o’clock or thereabouts in that later conversation with Ms Antonakis? --- I certainly didn’t make it at that time. I wouldn’t have made it at that time because she was distressed. I was listening to her, supporting her. I wouldn’t have made a comment like that. It’s very clear in my mind and I took pretty extemporaneous notes of the event on the Monday the 22nd and my notes show that I recorded that I had made the comment about not being thrilled about the t-shirt at the 12 o’clock meeting.’[62]
[60] Tn p 59 lines 42-46
[61] Tn p 60 lines 6-11
[62] Tn p 211 lines 42-46; p 212 lines 1-2
Ms Byrnes made a contemporaneous note of the events of 18 and 21 May 2012 in a file note dated 22 May 2012, set out at Tab 22 of Joint Exhibit 1. The file note is consistent with Ms Byrnes’ oral evidence.
The applicants submit that Ms Antonakis’ evidence on this issue should be preferred and that the Court should find that Ms Byrnes said ‘I can’t say I’m happy about it’, or words to that effect, later in the day, after the incident in Mr Easy’s office. Three points are advanced in support of this contention:
(i)If Ms Byrnes had made the comment at about 12.40 pm then Ms Antonakis would have taken the UFU t-shirt off and reported the incident to a representative of the UFU;
(ii)Ms Byrnes making the statement after 3.00 pm accords with Ms Antonakis’ statements and reactions the following Monday - that she did not feel supported by Ms Byrnes; and
(iii)Ms Byrnes’ evidence that she ‘felt betrayed’ by Ms Antonakis wearing the UFU t-shirt.
The third point has already been addressed (see [53]-[55] infra) and the other two points are unconvincing. As to (i), Ms Antonakis was not asked what her reaction would have been if the remark had been made earlier in the day and there is no reasonable basis for concluding that she would have taken the action suggested. As to (ii), Ms Antonakis’ statements that she did not feel supported by Ms Byrnes is more likely to have been a manifestation of Ms Antonakis’ general antipathy towards Ms Byrnes.
In relation to conflict between the evidence of Ms Byrnes and Ms Antonakis as to what was said in the brief interaction between them at about 12.40 pm on 18 May 2012, I prefer Ms Byrnes’ evidence, for three reasons:
·it is consistent with her contemporaneous file note;
·Ms Byrnes said that Ms Antonakis had said that she was cold. Ms Antonakis could not recall making such a statement, but it is consistent with her email exchange with her fiancé shortly before the interaction with Ms Byrnes; and
·the general credit issues dealt with at paragraphs [50]-[56].
It is common ground that after Ms Antonakis left Ms Byrnes’ office she went back to her desk. Ms Antonakis did not take the UFU t-shirt off and did not have any other interaction with Ms Byrnes about the UFU t-shirt until after 3.00 pm that day.[63]
[63] Tn p 16 lines 36-46
The next incident of note took place at about 3.00 pm and involved Ms Antonakis, Ms Carey and Mr Easy. Ms Antonakis was wearing the UFU t-shirt at the time of the incident.
(b) The incident involving Ms Antonakis, Ms Carey and Mr Easy
Ms Antonakis was walking towards the boardroom. There is a dispute as to whether Ms Antonakis paused at the entrance to Ms Carey’s office, or walked past it. Ms Antonakis was cross-examined about this:
‘Can I suggest that you paused at that door and said to Ms Carey, “Hi Pamela?” Correct? --- As I walked past, I said “Hi Pamela,” correct.’[64]
[64] Tn p 62 at lines 11-12
Ms Carey’s evidence was that Ms Antonakis did stop at her door.[65]
[65] Tn p 140 lines 9-19
Ms Carey also gave evidence that stopping to say ‘Hi Pamela’ was not something Ms Antonakis would usually do:
‘So you said that Ms Antonakis came to the door and said, “Hi Pamela”? --- She did, indeed.
Is that something she would usually do? --- She didn’t walk past my office too often, and she certainly never used to stop at the door and say, “Hi, Pamela”.’[66]
[66] Tn p 125 lines 25-29
Ms Antonakis denied that she was hoping for a reaction from Ms Carey.[67]
[67] Tn p 62 line 14
In relation to this aspect of the interaction between Ms Antonakis and Ms Carey the applicants make the following observation about the CCTV footage in their reply submissions (at [12]):
‘One can also observe from the CCTV that Ms Antonakis appears to be hiding the UFU insignia by the way she carries her hand as she walks past Ms Carey’s office. This conduct is not consistent with Ms Antonakis goading Ms Carey into a reaction.’
The CCTV footage does show that Ms Antonakis’ hand is raised, in the general vicinity of the logo on her t-shirt. Her hand only partially covers the logo and it does not appear to be in contact with the t-shirt. The explanation for the placement of Ms Antonakis’ hand is unclear. Ms Antonakis was not asked any questions about this issue and the Amended Statement of Claim makes no mention of it. In the circumstances I am not prepared to find that Ms Antonakis was attempting to hide the logo on her t-shirt.
I prefer Ms Carey’s evidence on this point and find that Ms Antonakis did pause at the door to Ms Carey’s office and did so for the purpose of getting a reaction from Ms Carey. Ms Antonakis’ actions in this regard were consistent with her actions earlier in the day when she sought to get a reaction from Ms Byrnes. It is notable that Ms Antonakis had not previously stopped at Ms Carey’s door and said ‘Hi Pamela’.
It is common ground that Ms Carey called out to Ms Antonakis, who turned back towards Ms Carey’s office. Ms Antonakis’ evidence was that Ms Carey said ‘excuse me, excuse me Sofie’.[68] Ms Carey rejected the proposition that she shouted ‘excuse me, excuse me’ at Ms Antonakis. She conceded that she raised her voice to get Ms Antonakis’ attention but denied shouting ‘excuse me, excuse me’.[69] Her evidence was that she said Sofie ‘a few times, in a very inquiring voice’ and that they were both laughing at the time.[70] Ms Antonakis agreed that she was smiling when she came back to Ms Carey’s office.[71] Ms Carey left her desk and moved towards Ms Antonakis. Ms Carey was laughing at the time.[72] Ms Carey said ‘What’s that?’, pointing to the UFU t-shirt worn by Ms Antonakis.
[68] Tn p 62 at line 24
[69] Tn p 140 lines 39-41 and p 141 lines 1-10
[70] Tn p 126 lines 1-6 and p 140 lines 34-41
[71] Tn p 61 at lines 16-26
[72] Tn p 62 line 16
The applicants submit that Ms Antonakis’ evidence is to be preferred on the basis that Ms Carey gave inconsistent evidence about whether she spoke in a loud voice in her interaction with Ms Antonakis on 18 May 2012. The inconsistency is said to arise between Ms Carey’s statement in the subsequent JBSA investigation (see [227]-[254] infra) - in which she said ‘I felt we were both being quite loud’[73] - and her oral evidence. Counsel for the applicants put the inconsistency in these terms:
‘Now, she gives evidence that she speaks sotto voce in her normal circumstances but yet - and told the court that but yet, she says that she was being loud in this interaction.’[74]
[73] Joint Exhibit 1 at Tab 31 para 9
[74] Tn p 319 lines 17-19
I am not persuaded that there is any inconsistency between Ms Carey’s statement to the investigator and her oral evidence. In her oral evidence Ms Carey conceded that she raised her voice to get Ms Antonakis’ attention, but denied shouting. Ms Carey’s evidence was that both she and Ms Antonakis were laughing and smiling. All of this accords with Ms Carey’s statement to the investigator.
I accept Ms Carey’s evidence in relation to this exchange.
Another person was present in Ms Carey’s office, a Ms Guest. At the time Ms Guest was an administrative assistant employed by the MFB, and is currently employed by an associated entity. Ms Guest was not called and the applicants invited the Court to draw an adverse inference from the MFB’s failure to call Ms Guest, on the basis of the rule in Jones v Dunkel. I am not persuaded that it is appropriate to draw such an inference.
The inferences which may be drawn under Jones v Dunkel all turn on the unexplained failure to call a witness who is in a party’s camp.[75] I am not persuaded that Ms Guest can properly be regarded as being in the MFB’s camp. There is no general rule that a party is expected to call their employees, as Lush J observed in Earle v Castlemaine District Community Hospital:
‘the bare fact that the absent witness is an employee of the party against whom his absence is sought to be used will not necessarily be sufficient, though the higher he stands in the party’s employment or confidence the more reason there will be for thinking that his knowledge is available to his employer rather than to the other party.’[76]
[75] See generally Payne v Parker [1976] 1 NSWLR 191 at [201]-[202] per Glass J; Also see Director, Office of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2013] FCAFC 8 at [96] - [103] per Besanko and Perram JJ
[76] [1974] VR 722 at 734
While the position may be different in relation to senior executives, Ms Guest does not answer that description, she was an administrative assistant at the relevant time.
It is also relevant to observe that the CCTV recording shows that Ms Guest had her back to the entry to Ms Carey’s office. Ms Guest would not have been able to give evidence on the critical issue in dispute - whether Ms Antonakis paused at the entrance to Ms Carey’s office and turned towards her. To attract the rule in Jones v Dunkel the evidence of the missing witness must be such as would have elucidated a matter.[77]
[77] Payne v Parker, op cit. at 202 per Glass JA
Counsel for the applicants also submitted that the respondents should have called Ms Guest as ‘part of the responsibility of discharging the onus’.[78] There is no substance in this point. The reverse onus provisions in s 361 only operate after the applicants establish each of the elements of the general protections upon which they seek to rely. Ms Guest may have been in a position to give evidence relevant to whether adverse action was taken against Ms Antonakis; but the onus of establishing adverse action rests on the applicants, not the respondents. The onus shifts to the respondents once (relevantly) adverse action and industrial activity are established. It is then for the respondents to prove that the adverse action was not taken because the employee engaged in industrial activity.
[78] Tn p 319 lines 21-45 and p 320 lines 1-16
It is common ground that Ms Carey then made contact with Ms Antonakis’ t-shirt and that Ms Carey and Ms Antonakis walked into Mr Easy’s office. The degree of force used by Ms Carey is in dispute. The applicants contend that Ms Carey ‘dragged Ms Antonakis by the sleeve’ of her t-shirt into Mr Easy’s office. The respondents contend that as Ms Antonakis and Ms Carey walked into Mr Easy’s office, Ms Carey ‘lightly held on to Ms Antonakis’ sleeve’. Ms Carey’s evidence is that she picked up the shoulder of Ms Antonakis’ t-shirt and said ‘What’s that’ or ‘What’s this’.[79] Ms Carey rejected the suggestion that she ‘grabbed the shirt sleeve’ of Ms Antonakis’ t-shirt and her recollection was that she ‘used two or three fingers to pick up the shoulder of the shirt’.[80] Ms Antonakis pointed to the CCTV and said ‘You shouldn’t be doing this in front of the cameras’.[81] Ms Carey was cross-examined as to this aspect of the interaction with Ms Antonakis:
‘She was giving you fair warning, wasn’t she, that what you were doing was not acceptable conduct? ‑‑‑ I was also of the view that we were just having a larking - bit of fun together.
Ms Carey, she was giving you fair warning about the CCTVs – that what you were doing was unacceptable conduct - wasn’t she?‑‑‑That might have been how she saw it. I saw it - that we were just having fun, and I wasn’t doing anything unacceptable.’[82]
[79] Tn p 141 lines 37-46, p 142 lines 13-32
[80] Tn p 143 lines 42-45; p 144 lines 1-2
[81] Tn p 144 lines 23-26
[82] Tn p 144 lines 31-31
Ms Carey rejected the proposition that Ms Antonakis had said ‘What are you doing? What are you doing?’.[83] I accept Ms Carey’s evidence and find that Ms Antonakis did not say ‘What are you doing? What are you doing?’
[83] Tn p 144 lines 14-18
Ms Carey rejected the suggestion that she ‘dragged Ms Antonakis down the corridor and pulled her into the CEO’s office’.[84]
[84] Tn p 138 lines 45-46
A copy of the CCTV footage of this incident is at Tab 16 of the Joint Exhibit 1. The CCTV footage does not support the contention that Ms Carey ‘dragged Ms Antonakis by the sleeve’ of her t-shirt into Mr Easy’s office. In fact it shows that Ms Antonakis was walking in front of Ms Carey, as opposed to being dragged by her. The footage also supports the respondents’ contention that the episode was light hearted - both Ms Antonakis and Ms Carey were smiling.
In the applicants’ reply submission (at [17], [18] and [20]) a number of points are made about the CCTV footage:
‘It is submitted that the court must have regard to the CCTV footage with respect to where the shirt and how the shirt was grabbed by Ms Carey. It is clear from the footage that it was grabbed down low on the shirt sleeve and that was done so with such force that it resulted in the shirt sleeve being pulled up. This is evidenced by the stretch of the fabric.
The evidence of Ms Carey that she lightly held the shirt on the top of the shoulder must be in doubt. The CCTV footage does not support her evidence. It is clear from the CCTV that a fist was made by Ms Carey when grabbing the t-shirt...
The CCTV footage also indicates that Ms Antonakis is a reluctant participant in the moving towards Mr Easy’s room. Her feet are slow. She is not held lightly and she is propelled by Ms Carey into the CEO’s office.’
Two things may be said about this. First, I am not persuaded that the CCTV footage shows what the applicants contend it shows, in particular:
·The t-shirt is not ‘grabbed’ by Ms Carey and nor did Ms Carey make a fist when ‘grabbing’ the t-shirt. The CCTV footage shows Ms Carey holding the t-shirt in a pincer like hold between her thumb and two fingers.
·Nor does the CCTV footage show that Ms Carey’s contact with the t-shirt was ‘low on the shirt sleeve’ as contended by the applicants. The contact was initially about half way up the sleeve and then rode up to the shoulder of the t-shirt.
·The fabric of the t-shirt is stretched, but that says very little about the degree of force being used - some fabrics stretch more easily than others and there is no evidence as to the fabric used in the t-shirt.
·The CCTV footage does not indicate that Ms Antonakis is a reluctant participant and nor does it show that ‘her feet are slow’.
The second point concerns the contention that Ms Antonakis was ‘propelled’ into the CEO’s office. This proposition was not put in the pleadings and nor was it the subject of any evidence. The Amended Statement of Claim alleges that Ms Antonakis was ‘dragged’ into Mr Easy’s office, and Ms Antonakis’ evidence is to the same effect. As mentioned earlier, the CCTV footage does not support that Ms Antonakis was ‘dragged’ into Mr Easy’s office; and nor does it show that she was ‘propelled’.
There are some inconsistencies between Ms Carey’s account of this incident and the CCTV footage but these are minor in nature and do not lead me to reject the other aspects of Ms Carey’s evidence.
As they walked into Mr Easy’s office Ms Carey said words to the effect of ‘look at this’ or ‘look, look’. The tone used by Ms Carey is a matter of contention. The applicants say that Ms Carey’s tone was loud and accusatory. The respondents deny this and say that the entire interaction between Ms Carey and Ms Antonakis was friendly and jovial in tone. They say further that throughout the exchange both Ms Carey and Ms Antonakis were laughing and smiling, and that Ms Antonakis said words to the effect that she was wearing the t-shirt because she was cold. According to Ms Carey, Ms Antonakis said to Mr Easy ‘I was cold’, probably twice.[85] In cross-examination, Ms Antonakis rejected the suggestion that before Mr Easy said anything she said she was wearing the t-shirt because she was cold.[86] In her evidence in chief, Ms Antonakis had accepted that she did say this to Mr Easy, but later:
‘And did anything happen in there? --- Yes. She asked the CEO – she said to the CEO, “Look at this”. He was working. He had his head down. He then put his head up, looked at the - what I was wearing. He looked at the logo of the UFU. He said, “Thanks”. I then said I was cold. He said, “No comment.”…’.[87] (emphasis added)
[85] Tn p 145 lines 4-6
[86] Tn p 62 lines 26-27
[87] Tn p 17 lines 31-34
What Mr Easy said when Ms Antonakis and Ms Carey entered his office is also disputed. The applicants say that Mr Easy looked directly at Ms Antonakis and her t-shirt and said in a sarcastic tone, ‘thanks’. The respondents deny these allegations and say that upon seeing Ms Antonakis and Ms Carey walking into his office Mr Easy looked up and said in a neutral tone words to the effect of ‘I have no comment to make’. Ms Antonakis’ evidence was that Mr Easy did not say ‘Well I’ve no comment on that’ or words to that effect.[88]
[88] Tn p 62 lines 29-30
Ms Antonakis’ evidence was that she said to Mr Easy: ‘I did not come into your office to advertise. I was dragged in.’[89] Mr Easy said that he didn’t hear Ms Antonakis say those words. Ms Carey’s evidence was to the same effect and, according to Ms Carey, ‘I was certainly close enough to the door of the CEO’s office to have heard if she said something like that’.[90] The CCTV footage supports Ms Carey’s evidence as to her proximity to Mr Easy’s office.
[89] Tn p 63 lines 3-4
[90] Tn p 145 lines 26-31; p 148 lines 1-30
Ms Antonakis’ evidence as to what took place is as follows:
‘Ms Antonakis: I was walking towards the board room of the MFB, looking for another colleague of mine. As I walked past Pamela Carey’s office, I said, “Hi, Pamela,” as I usually do when I walked past Pamela’s office. As I got around - as I walked past her office, I heard her saying, “Excuse me, excuse me, Sofie,” so I turned back, and I said - she said, “What’s that?”
Counsel:When she said, “What’s that”, what was she doing?
Ms Antonakis:   She was pointing towards me, towards the T-shirt. And I said, “What?” When she came out of her office, she grabbed me by the sleeve and took me into the CEOs office.
Counsel:        And what did you say?
Ms Antonakis:   I kept asking Pamela, “What are you doing? What are you doing?” But she just continued to laugh as I said it.
Counsel:Did you say anything else to Ms Carey as you were being taken?
Ms Antonakis:   I - yes, I did. I said, “Pamela, you do realise there are cameras here, don’t you?”
Counsel:And how did this make you feel?
Ms Antonakis:   I was - I was stressed. I was - I felt humiliated. I couldn’t believe what was happening. I couldn’t believe I was being dragged into the CEOs office for wearing a T-shirt.
Counsel:You entered the - you and Ms Carey entered the CEOs office?
Ms Antonakis:   Yes, we did.
Counsel:And did anything happen in there?
Ms Antonakis:   Yes. She asked the CEO - she said to the CEO, “Look at this.” He was working. He had his head down. He then put his head up, looked at the - what I was wearing. He looked at the logo of the UFU. He said, “Thanks.” I then said I was cold. He said, “No comment.” And then I said, “I didn’t come in here to advertise it. I was dragged into your office.” And then Pamela was laughing, and she left. And then I just stood there, not knowing - I just couldn’t believe it. I still can’t. and then I left his office.
Counsel:        Did Mr Easy make any comments about Ms Carey’s actions?
Ms Antonakis: No.
Counsel:No. Did he make any comments about you wearing the T-shirt, other than “Thanks” and “No comment”?
Ms Antonakis: No, he did not.
Counsel:Did he make any comments about lawfully engaging in industrial action?
Ms Antonakis: No, he did not.
Counsel:        How did Mr Easy’s actions make you feel?
Ms Antonakis: He looked at me like - I don’t know, he was disgusted that I was wearing something like that. He made me feel uneasy, ashamed, humiliated and stressed.’[91]
[91] Tn p 17 lines 7-45; p 18 lines 1-3

Ms Antonakis’s evidence was that she was not smiling when she came out of Mr Easy’s office but rather was in a state of shock and disbelief.[92] The CCTV footage does not support Ms Antonakis’ recollection of this incident. It shows that she is smiling as she leaves Mr Easy’s office.
[92] Tn p 61 at lines 28-34
According to Ms Carey both she and Ms Antonakis were smiling when they entered Mr Easy’s office.[93] Ms Carey describes the incident in these terms:
‘It was a Friday afternoon. I was leaving the office. I was heading down to Apollo Bay for the weekend. It had been a fantastic week. I was in very high spirits. I picked up my handbag, put it over my shoulder, and I heard from my door somebody say, “Hi, Pamela.” I turned round, and Sofie was standing in the door to my office, and I looked at her, and she turned very much to face me, and I saw, “Oh my God, she’s wearing a UFU T-shirt,” and I laughed. I thought, “She’s the EA to our executive director HR, and she’s wearing a UFU T-shirt.” I was surprised and amused, and I said, “Sofie.” By then, she had walked off a little bit. She heard me call and she came back. She said, “Yes?” and I walked over to her, and picked up just a bit of her shirt like this, and I said, “Sofie, what is this?” and since I was walking down to say goodbye to Nick, and she was heading in that direction, I kept holding on – on her T-shirt, and we continued walking towards Nick’s office. During the walk, Sofie said, “You shouldn’t be doing this in front of the cameras,” and I just laughed, because this was a light-hearted thing between two colleagues. When we got to Nick’s office, I moved Sofie into the CEOs office. Nick was sitting, writing at his desk. I think I said something along the lines of – I don’t remember my exact words – “Have a look at this.” Nick looked up. He maintained an absolutely straight face, and said, “I have no comment to make on that.” I said, “Okay, Nick. I’m off. Cheerio, bye.” Some – words to that effect. I said some farewell to Nick and left for the day. Said goodbye. That was the end of the exchange. Went back to my office, picked up my – another bag that I carry with me, and left for the day.’[94]
[93] Tn p 144 lines 4-6
[94] Tn p 125 lines 2-23
The following aspects of Ms Carey’s evidence are also relevant:
‘Counsel:When you went into the office, what was the demeanour of Ms Antonakis at that time, when you went into Mr Easy’s office?
Ms Carey:       She was smiling as well. We were both smiling.
Counsel:It has been said that you, in the office, said in a loud tone of voice, “Look, look”. Did you say that in a loud tone of voice?
Ms Carey:I don’t recall my exact words. I thought I said something like, “Look at this.” I don’t have a loud voice. I don’t use a loud voice. And I certainly didn’t on that afternoon.
Counsel:It has also been said in evidence that Sofie said to Mr Easy words to the effect, “I didn’t come in here to advertise it. I’ve been dragged in here.” Did she say that?
Ms Carey:       No.
Counsel:        Can you remember anything else that she said?
Ms Carey:I think she used words to the effect of, “I was cold. I was wearing the T‑shirt because I was cold.” I can’t remember her exact words. That’s all I remember her saying, and I think she said that twice.
Counsel:It has also been alleged that Mr Easy said “thanks” in a sarcastic tone. Did he say that?
Ms Carey:       He did not.
Counsel:In relation to Mr Easy’s demeanour, I think you said he looked up with a straight face. It has been said that he, on seeing Sofie, had a disgusted expression on his face. What do you say about that?
Ms Carey:Mr Easy was completely neutral. He looked up with a very neutral face and showed no expression whatsoever.’[95]
[95] Tn p 126 lines 16-34; lines 42-45
As to Mr Easy’s actions, Ms Carey denied that Mr Easy looked up and said ‘Thanks’.[96]
[96] Tn p 145 lines 1-2
Mr Easy described the incident in these terms:
‘I was sitting at my desk doing some reading. It was around about 3.00 pm in the afternoon. Ms Carey and Ms Antonakis walked into my office. It wasn’t until I heard from Pamela words to the effect, “Look at this,” that I looked up. In looking at both of them, Sofie – or Pamela, sorry, had her hand on the shoulder of Sofie. Sofie was wearing a UFU shirt over another garment. At that time Pamela said, “Look at this.” I said that I had no comment to make. At that point in time, her response was that, “I was wearing the shirt because I was cold.” I then looked down and continued with my reading, and they both left the office.’
Mr Easy denied saying ‘thanks’ and rejected the suggestion that he had made his comment with a sneer in his voice and a look of disdain on his face. Mr Easy rejected the suggestion that Ms Antonakis had said ‘I didn’t come in here to advertise it. I was dragged into the office.’[97]
[97] Tn p 158 lines 19-35; p 178 lines 23-45 and p 179 lines 1-10
There is a clear conflict in the evidence as to what was said by Mr Easy and Ms Antonakis during this brief interaction and as to the tone used by Mr Easy and his facial expression. Ms Carey’s evidence corroborated Mr Easy’s recollection of these events. I prefer Mr Easy’s evidence. I find that as Ms Carey and Ms Antonakis walked into Mr Easy’s office Ms Carey said words to the effect of ‘look at this’. Mr Easy was seated at his desk, he looked up, his face was expressionless and in a neutral tone he said ‘I have no comment to make on that’. Ms Antonakis responded, ‘I was wearing the shirt because I was cold’ or words to that effect. That was the end of the exchange between Mr Easy and Ms Antonakis.
There is also an evidentiary conflict about the nature of the entire interaction between Ms Carey, Ms Antonakis and Mr Easy. Ms Carey’s evidence was that the interaction was friendly and jovial. Mr Easy’s evidence corroborated Ms Carey’s recollection:
‘My belief at the time was that it was very light hearted and very jovial. There was no sense of aggression in the interaction, and I could see no concern on the face of either party at that time.’[98]
[98] Tn p 158 lines 32-35
When asked if her interaction with Ms Carey was ‘jovial and in fun’ Ms Antonakis replied ‘No. Well, Pamela was laughing but I wasn’t’.[99]
[99] Tn p 18 lines 24-25
The applicants submit that the characterisation of the interaction as ‘jovial’ is not consistent with Ms Carey’s evidence that on the trip to Apollo Bay and all weekend she worried about what had occurred and wanted to apologise to Ms Antonakis.[100]
[100] Applicant’s submissions in reply at paragraph 24
Ms Carey’s evidence on this point is as follows:
‘Counsel:After you left work, did you think about that event that you’ve just described again?
Ms Carey:I most certainly did. It was very strong in my mind, and I regretted that I had done that. It was on my mind all the way down to Apollo Bay. I mentioned it to my husband and said that I really would like to apologise to Sofie first thing on Monday morning ...
Counsel: Why did you think you should apologise?
Ms Carey:Just on-reflecting on it, I just thought, you know, maybe she didn’t enjoy the interaction, although she appeared to at the time. I just thought I probably shouldn’t have done that.’[101]
[101] Tn p 128 lines 4-26
Importantly, this alleged inconsistency was not put to Ms Carey in cross-examination - indeed it was suggested that at that time Ms Carey felt no remorse for her actions:
‘Counsel:I suggest to you that you actually didn’t feel any remorse about your actions until you were caught out, Ms Carey?
Ms Carey:That is not true. I told my husband in the car that I was very remorseful about what happened.
Counsel:I suggest to you what happened was when you came in to work on the Monday morning and when you were told that there had been a request by the UFU to preserve the CCTV footage outside the CEO’s office, that’s when you thought about your conduct?
Ms Carey:Your Honour, I strongly deny that I fretted all weekend and spoke to my husband on several occasions about it.’[102]
[102] Tn p 150 lines 25-33
I am not persuaded that Ms Carey’s subsequent reflection upon her actions is inconsistent with her view of the incident at the time it occurred. Ms Carey’s interaction with Ms Antonakis was spontaneous in nature and regarded by Ms Carey as being a bit of light heartedness.[103] There is nothing particularly unusual about engaging in an activity spontaneously and then, after further reflection, regretting having done so.
[103] Tn p 128 lines 32-33
Mr Easy corroborated Ms Carey’s characterisation of the incident, as did the CCTV footage. I find that the interaction between Ms Antonakis and Ms Carey was friendly and jovial.
However, I also accept that Ms Antonakis was visibly distressed during her later interaction with Ms Byrnes and that her level of distress did not support the proposition that her interaction with Ms Carey and Mr Easy had been jovial or amicable.[104] I conclude that Ms Antonakis became distressed after reflecting on the incident and after her discussion with Mr Hogan.
[104] Tn p240 lines 21 - 26
After Ms Antonakis left Mr Easy’s office she walked past the boardroom and noticed that Sean Hogan was inside. Mr Hogan is the MFB’s Director - Employee Relations, he reports to Ms Byrnes. Ms Antonakis entered the boardroom and had a conversation with Mr Hogan. Ms Antonakis describes this conversation in her examination in chief:
‘I said to him that, “You’re not going to believe this. I’ve just been dragged into the CEOs office”. He asked me why, and I said, “For wearing this”, pointing to the T-shirt. And I said, “Can you explain to me why I was dragged in there? Can you name someone else who has been dragged in there?” And he said - I think I was being loud, and he said, “Come with me”. He took me into his office. He shut the door. And he said that I was to report the incident to Danielle Byrnes, as she was my direct report - my - boss, and that I had every right to participate in protected industrial action, and he said that, “These people have no idea what protected industrial action means”.’[105]
[105] Tn p 19 lines 33-41
Ms Antonakis then left the boardroom and went to see Ms Byrnes.
Mr Hogan was not called and the applicants invited the Court to draw a Jones v Dunkel inference based on the MFB’s failure to call Mr Hogan.
Mr Hogan was, and is, an executive officer at the MFB. It would ordinarily be expected that such a witness would be called by the MFB, rather than the applicants. But Ms Antonakis’ evidence about her conversation with Mr Hogan was unchallenged and I accept it. In circumstances where there is no challenge to the evidence of those who are called the rule in Jones v Dunkel does not operate to require a party to give merely cumulative evidence. As O’Loughlin J put it in Cubillo v Commonwealth:
‘. . . the rule does not compel time to be wasted by calling unnecessary witnesses.’[106]
[106] (2000) 174 ALR 97 at [360]
Ms Antonakis then had a conversation with Ms Byrnes about the incident involving Ms Carey and Mr Easy.
(c) Second interaction between Ms Antonakis and Ms Byrnes
There is a dispute about what was said during the conversation between Ms Antonakis and Ms Byrnes. The applicants contend that Ms Byrnes said words to the following effect:
‘By wearing that T-shirt you are voicing that you are participating in the bans and I don’t like seeing you in that top.’
and that Ms Antonakis responded:
‘I don't care what the T-Shirt says I have protected industrial action. I don't understand, who else has been dragged into the CEO's office for wearing a UFU T-shirt, this is unacceptable I will not stay here and put up with this treatment.’
The applicants also contend that the statement made by Ms Byrnes caused Ms Antonakis further upset, distress and humiliation and increased her fear that her position was at risk because she engaged in the ‘Protected Action’. In relation to the latter point, I note that no evidence was given by Ms Antonakis to the effect that she feared her position was at risk because she engaged in the ‘Protected Action’.
The respondents deny the allegations as to what was said by Ms Byrnes and Ms Antonakis and contend that Ms Byrnes had said words to the effect of ‘I can’t say I’m thrilled to see you wearing it’ during her earlier interaction with Ms Antonakis around 12.40 pm that day (see paragraphs [65]-[70]). The respondents also deny the applicants contentions as to the effect of the statement said to be made by Ms Byrnes to Ms Antonakis.
It is common ground that during this exchange Ms Antonakis said ‘Why am I being dragged into the CEO’s office for wearing a UFU T-shirt’ or words to that effect.[107]
[107] Tn p 64 lines 15 - 19
Ms Antonakis’ evidence as to what took place in this exchange is as follows:
‘Counsel: And what did you say to Ms Byrnes?
Ms Antonakis: I said to her that I had just been dragged into the CEOs office for wearing a UFU T-shirt and she said, “By whom?” I said, “By Pamela.” She then said that, “Well, by wearing that you’re voicing that you’re participating in industrial action.” I said I didn’t care what it meant. That I was participating in protected industrial action. That I had a right to participate in protected industrial action. That I had signed a form so I could participate in protected industrial action.
Counsel:Can I just stop you there. When you signed a form, are you referring to the bargaining representative form?
Ms Antonakis: Yes. I said I had done everything else. I had typed without using the caps lock on. I hadn’t forwarded my phone to voice mail. I had done all the reports she asked me to do. I had processed things since that. There was no other industrial ban that I had participated in. It didn’t affect my job. She then said that she didn’t like seeing me in that top and then I remember saying that I just didn’t understand why I was being dragged into the CEOs office and can you please tell me who else has been dragged into the CEOs office and that this was just unacceptable.’[108]
[108] Tn p 20 lines 11-27
Ms Antonakis was cross-examined in relation to this interaction with Ms Byrnes.
‘Counsel:And you, I suggest that in the conversation with Ms Byrnes, you said why am I being taken into this CEOs office for wearing a t-shirt or words to that effect?
Ms Antonakis: A UFU T-shirt, yes.
Counsel: Sorry?
Ms Antonakis: A UFU T-shirt.
Counsel:A UFU T-shirt, I see. And Ms Byrnes said, “That sounds distressing,” or words to that effect?
Ms Antonakis: No. No.
Counsel:And I suggest she said she would speak to Ms Carey about it?
Ms Antonakis: No, she didn’t.
Counsel: And she then left to speak to Ms Carey?
Ms Antonakis: After we spoke I went back to my desk and I believe Ms Byrnes went to see Pamela, yes.
Counsel:And I suggest that in that conversation Ms Byrnes said nothing about, “I don’t like or I can’t say I’m happy about that,” or words to that effect. Those were words she had used earlier in the day?
Ms Antonakis: She said that by wearing that top, you’re voicing that you’re participating in protected industrial action. She also said, “I don’t like seeing you in that top.” She said this after the incident, not before.
Counsel:I suggest that she never said anything. You never said anything about protected industrial action, typing reports, not using caps and so forth?
Ms Antonakis: I did say all those things.
Counsel:Ms Byrnes, to your knowledge, went off and spoke to Ms Carey. She told you Ms Carey had left for the day?
Ms Antonakis: Yes.
Counsel:You said you were distressed and you were going to go home; right?
Ms Antonakis: I wrote that in the email, yes.
Counsel:And you sent, I think, email to Ms Byrnes which is tab 18 of the ?
Ms Antonakis: Yes, I sent that email.’[109]
[109] Tn p 64 lines 15-46
Ms Byrnes’ evidence as to this interaction differs from Ms Antonakis’ evidence in three key respects.
The first point is whether Ms Byrnes made a comment in relation to Ms Antonakis wearing the UFU t-shirt, to the following effect: ‘Well I can’t say I’m happy about it.’ For the reasons I have already given (see [65]-[70]) this remark was made by Ms Byrnes during her earlier conversation with Ms Antonakis. I reject Ms Antonakis’ evidence that this statement was made by Ms Byrnes during the second interaction between Ms Antonakis and Ms Byrnes, and I accept Ms Byrnes’ evidence in this regard.[110]
[110] Tn p 211 lines 39 - 46 and p 212 lines 1-2
The second point of contention is Ms Antonakis’ evidence that Ms Byrnes said: ‘Well, by wearing that you’re voicing your participating in the industrial action.’ Ms Byrnes denies making this statement.[111]
[111] Tn p 238 lines 21-46; p 239 lines 1-35 and Joint Exhibit 1 at Tab 22
Finally, Ms Antonakis rejected the suggestion that Ms Byrnes said ‘that sounds distressing’ and that she would ‘speak to Ms Carey about it’ or words to that effect.[112]
[112] Tn p64 lines 21 - 24; p 211 lines 21-22
I prefer Ms Byrnes’ evidence in respect of each of these matters for the reasons I have already given (see paragraphs [50]-[54]). In relation to the third issue in contention I note that Ms Byrnes’ evidence is consistent with her subsequent actions - in going to see Ms Carey. Ms Byrnes’ evidence is also consistent with the text message she sent Ms Antonakis at about 8.00 pm that day (see para [134] infra).
After the exchange with Ms Byrnes, Ms Antonakis went back to her desk and Ms Byrnes went to talk to Ms Carey[113]. Ms Byrnes then returned to Ms Antonakis’ work area and Ms Antonakis says the following exchange took place:
‘She came to my desk and told me that Pamela had left for the day and that she would talk to her on Monday. And I said that I was going to pack up and do the same thing. That I wasn’t going to put up with such treatment.’[114]
[113] Tn p 64 lines 26-27
[114] Tn p20 lines 33-36
Ms Antonakis recalls leaving her workplace at ‘maybe 3.40 pm’ that day.[115] She sent an email to Ms Byrnes at 3.25 pm in the following terms:
‘Subject: Leaving
Hi Danielle,
I am quite distressed with what has just happened and so I am leaving for the day. I didn’t realise that I would be dragged into the CEO’s office for wearing a UFU t-shirt.
Sofie.’[116]
[115] Tn p21 line 45
[116] Joint Exhibit 1 at Tab 18
At about 8.00 pm on 18 May 2012, Ms Byrnes sent a text message to Ms Antonakis in the following terms:
‘Sofie, Just wanted to let you know that I'm thinking of you. I am really sorry about what happened today. Pamela might have thought she was being lighthearted and may not have thought through the impact on you. But I want you to know that I understand why you would have been distressed. I am upset for you. I will speak to her first thing Monday. I hope you can let it go, enjoy your weekend and have some good rest. You have my support and I care about you and value you very much. X’[117]
[117] Joint Exhibit 1 at Tab 20
On 19 May 2012, Ms Antonakis attended the Brigade Medical Services Public Health Management and was issued with a certificate of capacity.[118]
[118] Exhibit MFB 3
It is convenient to deal with the allegations arising out of the incidents on 18 May 2012 before turning to what took place the following week.
In the Amended Statement of Claim the applicants claim that the MFB altered the position of Ms Antonakis to her prejudice by:
(a)failing or refusing to allow Ms Antonakis to exercise her right to engage in protected industrial action by wearing the UFU t-shirt in the executive suites or at all; and
(b)subjecting Ms Antonakis to ridicule and harassment because she engaged in the Protected Action.
Further, or in the alternative, it is claimed that the MFB discriminated between Ms Antonakis and its other employees by:
(a)failing or refusing to allow Ms Antonakis to exercise her right to engage in protected industrial action by wearing the UFU t-shirt in the Executive Suites or at all;
(b)calling Ms Antonakis into the CEO’s office for engaging in the Protected Action in that she was wearing a UFU t-shirt; and
(c)subjecting Ms Antonakis to ridicule and harassment because she engaged in the Protected Action.

The Workplace Behaviour policy is primarily directed at the person to whom the ‘Unacceptable Behaviour’ is directed - in this case Ms Byrnes. In order for a matter to arise under the Workplace Behaviour Policy and in particular formal resolution which may include mediation, Ms Byrnes would need to make a complaint in writing setting out the particulars of the complaint. There is no evidence that Ms Byrnes made any such complaint. Nor was it a matter for Mr Easy to institute a complaint under this policy.
There is also no evidence that the emails in question were considered by Mr Easy or the MFB to constitute ‘Unacceptable Behaviour’ within the meaning of the Workplace Behaviour Policy. The issue about the emails and what those emails showed was a problem of a different nature, that is the breakdown of a working relationship.
Ms Byrnes also gave evidence about the conversation she had with Mr Easy concerning Ms Antonakis.[221] In particular, Ms Byrnes notes that the relationship was very tense and Ms Antonakis was ‘obviously unhappy’[222] and her attitude was variable.[223]
[221] Tn p 217 lines 36-47; p 218 and p 219 lines 1-2
[222] Tn p 218 lines 20-21
[223] Tn p 218 lines 43-44
I am satisfied that Mr Easy did not take adverse action against Ms Antonakis because she had exercised a workplace right (namely the initiation of these proceedings), or for reasons which included that reason. I accept Mr Easy’s evidence that he took this decision because he believed that there had been a breakdown in the relationship of trust and confidence between Ms Antonakis and Ms Byrnes. In my view the reason provided for the action taken was plausible having regard to:
·the role of Executive Assistant to Ms Byrnes required a high level of trust;
·the emails indicated that Ms Antonakis had a disparaging view of Ms Byrnes; and
·the earlier conversations Mr Easy had with Ms Byrnes during which Ms Byrnes referred to the fact that she was redirecting some emails to her home address, and the tense relationship between her and Ms Antonakis.
While Mr Easy took the decision to remove Ms Antonakis from her role as Executive Assistant to Ms Byrnes, he asked Mr Trask to manage the process of relocating Ms Antonakis to another role and to be the single point of contact on all matters to do with that issue and all issues associated with Ms Antonakis. Mr Easy also asked Ms Byrnes to provide advice in respect of alternate roles for Ms Antonakis and to work with Mr Wiseman on that issue.[224] Ms Byrnes subsequently identified alternate positions and provided that advice to Mr Trask.[225] Mr Trask also gave evidence that he also ‘took the step to look through our intranet, look at all the positions available, to see if there’s anything else that might be there and there was nothing else’.[226]
[224] Tn p 163 lines 36-47.
[225] Tn p 277 lines 38-41; p 301 lines 34-45 and p 163 lines 34-35
[226] Tn p 277 lines 38-41
Ms Byrnes’ evidence is that there were not many roles that were currently vacant at Ms Antonakis’ work level or job grade.[227]
[227] Tn pp 225-227
Mr Easy conceded that at this time there was a position available as an Executive Assistant at Eastern Hill, but on Ms Byrnes’ advice he elected not to offer that role to Ms Antonakis.[228] Mr Easy rejected the proposition that he made that decision because these legal proceedings were on foot. Ms Byrnes gave evidence that she had telephoned the incumbent (Mr Youssef) for that role and asked him whether he would consider Ms Antonakis as his Executive Assistant, and he refused.[229] The Executive Assistant position at Eastern Hill was to the North West Regional Director (Mr Youssef). Mr Youssef’s substantive position as Regional Director, South East Metro Region, at Oakleigh. One of the positions offered to Ms Antonakis was as the Executive Assistant to this position. In cross-examination Mr Trask was asked what would happen to Ms Antonakis once Mr Youssef returned to his substantive position:
[228] Tn p 198 lines 5-30
[229] Tn p 227 lines 37-38
‘Counsel:Mr Youssef returns to that position, decides that he does not want Ms Antonakis as his EA in that role, Ms Antonakis would be without a job then, wouldn’t it?
Mr Trask:Definitely that’s not the case. Mr Youssef came back to the role, he couldn’t just say, ‘I want someone else in the role’. That - that was a permanent position that that person would have reporting to whoever is in the role of that executive officer.
Counsel:So you’re aware that there was a position available reporting to Mr Youssef at Eastern Hill as executive assistant?
Mr Trask:I understand that may have been filled. I’m not sure of the details of that. I don’t believe that was available at the time ...
Counsel:And Ms Antonakis could have been offered that position, couldn’t she?
Mr Trask:My understanding is it wasn’t available at the time, certainly not a permanent basis. There may have been a temporary person in relation to that role.’[230]
[230] Tn p 304 lines 23-40
The position of Executive Assistant to Mr Youssef, at Eastern Hill, was a temporary role only, probably for 12 months with the possibility of an extension.[231]
[231] Tn p 249 lines 25-32
Mr Easy also rejected the proposition that the offer of an Executive Assistant role at Oakleigh was made because these proceedings were on foot.[232] Mr Easy also rejected that following propositions:[233]
-The threat to place Ms Antonakis in the Administrative Secretary position was because the legal proceedings were on foot;
-the offer of the Executive Assistant’s role in Oakleigh was offered to Ms Antonakis because the legal proceedings were on foot.
[232] Tn p 198 lines 24-30
[233] Tn p 198 lines 24-30
I am satisfied that Mr Trask and Ms Byrnes did not take adverse action against Ms Antonakis because she had exercised a workplace right (namely the initiation of these proceedings). Both Mr Trask and Ms Byrnes gave evidence about their intentions and motivations for the actions they took in relation to Ms Antonakis’ relocation:
·Mr Trask denied that in requiring Ms Antonakis to elect a position prior to commencing the internal secondment was because she had instituted Federal Court proceedings. Mr Trask stated that the Federal Court proceedings really had nothing to do with the relocation: ‘It wasn’t factored into my decision.’[234]
·Mr Trask denied that requiring Ms Antonakis to accept the Administrative Secretary role if she did not make an election was because Ms Antonakis instituted Federal Court proceedings.[235]
·Mr Trask denied that in failing to give an undertaking to return Ms Antonakis to the role of Executive Assistant to the Executive Director, People and Culture, it was in whole or part on the fact that Ms Antonakis had instituted Federal Court proceedings. Mr Trask said further ‘[It] wasn’t at all, and I think it wouldn’t have been appropriate in the circumstances to make such an undertaking’.[236]
·Mr Trask denied that the removal of Ms Antonakis from her position as Executive Assistant to the Executive Director, People and Culture had nothing to do with the breach of trust and confidence.[237]
·Mr Trask also denied that the breakdown of trust and confidence was a legal construct created by Mr Trask, Mr Wiseman and Mr Easy.[238]
·Mr Trask denied that the removal of Ms Antonakis from her position as Executive Assistant to the Executive Director, People and Culture was because of the legal proceedings and that placing Ms Antonakis in a role either offsite, or a role that was a demotion, was a decision made as a result of these proceedings.[239]
·Ms Byrnes denied that in selecting the roles which would be offered to Ms Antonakis that she took into account that Ms Antonakis had instituted legal proceedings against the MFB and Ms Byrnes.[240]
·Ms Byrnes also denied that the Oakleigh position was selected because she did not want Ms Antonakis at Eastern Hill and that she did that because the proceedings were on foot.[241]
[234] Tn p 279 lines 1-7
[235] Tn p 278 lines 9-16
[236] Tn p 280 lines 24-28
[237] Tn p 302 lines 1-4
[238] Tn p 302 lines 11-13
[239] Tn p 302 lines 24-31
[240] Tn p 228 line 23
[241] Tn p 251 lines 1-2
I am satisfied that the respondents have discharged the burden imposed by s 361(1) and that the respondents did not take adverse action against Ms Antonakis because she exercised a workplace right (namely the initiation of these proceedings).
I now turn to the last of the allegations advanced by the applicants.
3.3 The incident involving Ms Antonakis’ personal items
On 26 November 2012, Ms Byrnes disposed of a number of Ms Antonakis’ personal items, without her consent. The relevant facts are not in dispute.
Ms Antonakis commenced the consultative committee task tracking project role on 15 November 2012. It was initially thought that the project would take about four to six weeks to complete. Ms Byrnes had advertised for a temporary Executive Assistant for the period 26 November 2012 to 10 January 2013, to replace Ms Antonakis while she was in the project role. Ms Antonakis knew that her current workstation was required for the period she was undertaking the project role[242] and so on 14 November 2012 she relocated her workstation and took a number of personal items with her.[243] She cleared the desk area so that there was nothing left on there.[244] Ms Antonakis moved her computer, phone and the consultative committee files and some personal items, such as a Carlton flag, sea shells and ornaments.[245] Ms Antonakis then started in the new position on 15 November 2012.[246]
[242] Tn p 89 lines 26-27
[243] Tn p 93 lines 8-40
[244] Tn p 39 lines 9-10
[245] Tn p 93 lines 20-38 (Ms Antonakis in cross-examination); T229.24-32 (Ms Byrnes)
[246] Tn p 39 line 6
Ms Antonakis’ evidence was that she had left a number of personal items at her workstation:
‘I left an umbrella just beside the printer and I left wrapping paper, two UFU flags, some knives, a Norton Rose cylinder for an umbrella and I believe that was it. That was on the window sill. It wasn’t in the way. It wasn’t going to bother anyone.’[247]
[247] Tn p 39 lines 27-30
Twelve days after Ms Antonakis had moved her work and personal items to the other work station, and the day before the temporary backfill assistant was to commence, Ms Byrnes put the Christmas paper, umbrella, a plastic plate and two small plastic UFU flags in the rubbish bin[248] and placed a kitchen knife[249] and a framed mission statement in a drawer.[250]
[248] Tn p 94 lines 1-5
[249] It was common ground that the kitchen knife had not been thrown out, Tn p 94 lines 7-8
[250] Tn p 230 lines 14-16
Ms Antonakis was informed the same day that Ms Byrnes had thrown some items in the rubbish bin[251] and she sent an email to Mr Trask complaining about the disposal of these items:
‘I have been advised that my personal belongings including an umbrella, wrapping paper and 2 UFU flags have been thrown in the bin without my consent. I am extremely upset that this has occurred as no-one bothered to call me before they threw them out. I would have thought it is common courtesy to ring the owner of the items before throwing them in the bin. When relocating to my temporary position in the old building I didn’t think I had to remove all of my personal items from my desk as it is only a temporary assignment. Can you please organise to have these items removed from the bin (2nd floor photocopy room, close to the area I sit in as EA to Executive Director People and Culture. I am more than happy to collect these items from your office. I have to say I find it disgraceful that something like this has happened. I would never do such a thing to other people’s personal items. Its also disappointing that the items include 2 UFU flags considering the position that we currently find ourselves in, in relation to union representation.’
[251] Tn p 40 lines 1-4 Ms Antonakis in chief
Mr Trask responded to Ms Antonakis’ email, on the same day:
‘Hello Sofie,
Danielle has told me she had assumed the items you mentioned had been discarded or abandoned following the removal of your personal items a couple of weeks ago, and that they had been removed to allow space for the temp who is about to start.
She has also told me that the items had been removed from the photocopy room when she went to retrieve them yesterday afternoon, so I expect that you have arranged collection yourself.
Blair.’
The wrapping paper was part of a roll of Christmas wrapping paper and the umbrella referred to was not in working order (there was a clip missing and it had to be held open by hand)[252] but Ms Antonakis said that it had sentimental value as it had been given to her by a previous boss at the Herald Sun.[253] It is notable that the statement that the umbrella had sentimental value was made for the first time by Ms Antonakis in re-examination[254] and had not been pleaded or referred to in her outline of evidence.
[252] Tn p 140 lines 43-46
[253] Tn p 96 lines 1-9
[254] Tn p 96 lines 2-3
In her evidence Ms Byrnes says that she assumed the items were rubbish and threw them in the bin:
‘I drew what I thought was a reasonable conclusion that they were rubbish, given that they had been there for 10 days and that Sofie had so comprehensively cleaned out her work station including taking her phone and computer.’[255]
[255] Tn p 230 lines 38-40
Ms Byrnes expressly rejected the suggestion that she had disposed of Ms Antonakis’ items without her consent because Ms Antonakis had initiated these proceedings:
‘The thought did not cross my mind. The only thought I had was that I had a new person starting the next day and I was creating a clean work environment.’[256]
[256] Tn p 230 lines 38-40.
Ms Byrnes was cross-examined in relation to her disposal of these items:
‘Counsel:And you say that between 15 November and 26 November you noticed that there were items that remained of Ms Antonakis’ but you assumed that they were abandoned?
Mr Byrnes:     Yes, I did.
Counsel:You heard Mr Lee give evidence yesterday that it was usual for the MFB to even contact the UFU if it had been deemed that employees’ items, particularly operational staff members, items had been abandoned in their lockers. Are you aware of that practice?
Ms Byrnes:     I’ve not heard of that before.
Counsel:There was no reason why you couldn’t contact Ms Antonakis in the 10 day period and ask her whether she wanted those items that were remaining in the vicinity of her desk?
Ms Byrnes:I could have done, but she – I drew an assumption based on the fact that she had so comprehensively moved all of her items
Counsel:        You could have done but you didn’t, did you?
Ms Byrnes:     No, I didn’t.
Counsel:No. And you gave evidence that Sofie had mentioned to you that the umbrella was broken but still useable. Was that ?
Ms Byrnes:     I thought she said it was broken and she didn’t use it.
Counsel:        But she hadn’t thrown it out?
Ms Byrnes:I made what I thought was a reasonable assessment that the items had been discarded given that she had taken other items – all her other items of value to her with her.
Counsel:        None of these items were affecting the workspace, were they?
Ms Byrnes:Well, I thought they were. I mean, I don’t want to have a temporary staff member starting with union banners up in the workspace for a start, which when it’s a workspace it’s not theirs and someone who has got no involvement in the industrial action, and – and clutter in the office. My intent was – my primary intent was to – it was inconsequential really, it was one of a thousand things I was doing, and it was have I got a clean workstation, there’s some rubbish still there, threw it in the bin.
Counsel:But you knew, for example the union banners, Ms Antonakis was a member of the union. Any reason why she wouldn’t want to keep those? Why did you deem those rubbish?
Ms Byrnes:Because I assumed that she would have taken all of the things that were of value to her.
Counsel:        It was a temporary position that you advertised for, wasn’t it?
Ms Byrnes:     She was asked to clean out her workstation.
Counsel:        It was a temporary position that you advertised for?
Ms Byrnes:     Yes.
Counsel:And Ms Antonakis could reasonably have returned to her substantive position as your EA?
Ms Byrnes:Quite – quite possibly, but she was asked to clean out the workstation, not leave
Counsel:        And your evidence is ?
Ms Byrnes:     a pile of personal items.
Counsel:        Your evidence is that she did clean out the workstation, didn’t she?
Ms Byrnes:She did clean her desk. She did clean – she took all the files that were with her that she needed for her consultative committee job, and she left what I regarded inappropriately as a pile of rubbish when someone else was moving in.
Counsel:And I suggest to you you disposed of the items because of the legal proceedings on foot?
Ms Byrnes:     It did not occur to me, did not cross my mind.
Counsel:And I suggest to you that you didn’t contact Ms Antonakis to ask her to collect her personal items because of the legal proceedings on foot?
Ms Byrnes:     I don’t accept the proposition.’[257]
[257] Tn p 252 lines 32-46; p 253 lines 1-43.
The applicants allege that the MFB took adverse action against Ms Antonakis within the meaning of s 342 of the Act (being the disposal of her personal items without her permission or consent) and that the MFB took that adverse action because Ms Antonakis had exercised a workplace right in that she initiated or participated in a process or proceeding under workplace law, in contravention of s 340(1)(a)(ii) of the Act (namely, these proceedings). It is alleged that Ms Byrnes’ conduct caused Ms Antonakis to feel distressed, bullied, harassed and victimised and that the MFB altered Ms Antonakis’ position to her prejudice by disposing of personal items without her permission or consent.
In the alternative it is alleged that the MFB discriminated between Ms Antonakis and its other employees by disposing of personal items without her permission or consent.
This part of the applicant’s claim is devoid of merit. The action in question - disposing of Ms Antonakis’ personal items - did not constitute ‘adverse action’ within the meaning of the Act and nor was it taken for a proscribed reason.
The table in s 342 sets out the circumstances in which a person takes adverse action against another person. None of those circumstances is made out in this case. The incident did not touch on Ms Antonakis’ employment. It related to the disposal of some personal items left at her workstation. The items in question were returned to Ms Antonakis (or she retrieved them from the rubbish bin), as they were available to be produced to the Court for inspection.[258] Ms Antonakis was not injured in her employment and nor did Ms Byrnes’ actions alter Ms Antonakis’ position to her prejudice. Contrary to the Amended Statement of Claim, there was no evidence given by Ms Antonakis that the disposal of the items caused her to feel distressed, bullied, harassed or victimised. Ms Antonakis’ evidence went no further than that it made her feel like Ms Byrnes was ‘sending her a message’, ‘That she wanted me out’.[259]
[258] Tn p 7 lines 5-25
[259] Tn p 40 lines 16-19
The applicants also allege that the MFB discriminated between Ms Antonakis and its other employees by disposing of personal items without her permission or consent. The applicants submit that the process the MFB has adopted for the past five years with respect to personal items left by employees was to contact the employee and/or the UFU regarding the items in question. It is submitted that no contact was made with Ms Antonakis or the UFU regarding the abandoned items and on that basis Ms Antonakis was treated differently to other employees with respect to the disposal of her personal items.

The applicants’ reference to ‘the process that the MFB has adopted for the past five years with respect to personal items’ is based on Mr Lee’s evidence. Mr Lee was questioned about his knowledge of similar incidents involving the disposal of personal items:
‘... have you had any other experience such as the one that has occurred, in your five years as an industrial officer with the UFU - disposal of personal items?---Disposal of personal items has probably come up once - has come up once or twice, where staff have left things in lockers behind. And it has always been a very complicated and slow process, in working out what to do. MFB has tried to contact the staff members. They’ve contacted us. And so it has always been very different to what happened to Sofie’s items.
So you received no contact from anybody at the MFB, say, Mr Trask, that there were some personal items that they thought may have been abandoned by Ms Antonakis?---No contact - no.’[260]
[260] Tn p 111 lines 1-11
There was no discrimination between Ms Antonakis and other employees in relation to the disposal of the items in question. Mr Lee’s evidence concerns the protocol adopted when staff leave personal items in lockers, the circumstances involving Ms Antonakis’ items are quite different. The applicants did not identify any relevantly comparable employees, and adduced no evidence as to other relevantly comparable employees. Accordingly, this claim must fail.
The second reason for rejecting this element of the application is that the act of disposing of Ms Antonakis’ personal items was not taken for a prohibited reason, or for reasons that included a prohibited reason. The respondents have discharged the burden imposed by s 361(1).
Ms Byrnes disposed of the personal items because she wanted to have a clean workstation and environment for the person who would be filling in as Executive Assistant[261] and because she understood that the items had been discarded by Ms Antonakis and were rubbish.[262] Ms Byrnes gave evidence that the Federal Court proceedings ‘did not occur to me, did not cross my mind’ when disposing of the items.[263] Ms Byrnes also gave evidence that she thought it was reasonable to have concluded that the items were rubbish as ‘they [the items] had been there for 10 days and that Sofie had so comprehensively cleaned out her work station including taking her phone and computer’.[264] I accept Ms Byrnes’ evidence. It was an entirely reasonable assumption to make, given that:
(a)Ms Antonakis had been asked to ensure that the workstation was available for a temporary staff member;
(b)the items discarded appeared to have limited value (the umbrella being broken, the Christmas paper half used), so could reasonably be regarded as rubbish; and
(c)all other personal items had been removed from her work station.
[261] Tn p 230 lines 38-40; Tn p 253 lines 10-15
[262] Tn p 230 lines 29-34; Tn p 253 lines 19-20
[263] Tn p 253 lines 38-43; see also Tn p 230 lines 38-40
[264] Tn p 230 lines 30-33
For the reasons given, this incident did not involve any adverse action, as defined in s 342 and, further, the evidence establishes that the action was not taken because Ms Antonakis was exercising a workplace right, or for reasons which included that reason.
4. CONCLUSION
For the reasons given the applications are dismissed.

I certify that the preceding 337 numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Ross.
Associate:
Dated: 2 August 2013

Citation:		United Firefighters Union of Australia v Easy [2013] FCA 763
Parties:		UNITED FIREFIGHTERS UNION OF AUSTRALIA & SOFIE ANTONAKIS v NICHOLAS EASY, PAMELA CAREY, DANIELLE BYRNES AND THE METROPOLITAN FIRE AND EMERGENCY SERVICES BOARD
File number:		VID 445 of 2012
Judge:		ROSS J
Date of judgment:		2 August 2013
Catchwords:		INDUSTRIAL LAW – employment - adverse action - whether wearing a union T-shirt constitutes industrial action - whether instituting an investigation into alleged misconduct by another employee is adverse action - whether removal of personal items from a workplace constitutes adverse action. EVIDENCE - principles in Jones v Dunkel - witness not in the respondents’ camp - party not required to call a witness to give merely cumulative evidence.
Legislation:		Fair Work Act 2009 (Cth) ss 19, 340, 341, 342, 346, 347, 360, 361 and 40
Cases cited:		Australasian Meat Industry Employees’ Union v Belandra Pty Ltd [2003] FCA 910; (2003) 126 IR 165, Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union and Another v The Age Company Limited PR946290 Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Visy PackagingPty Ltd (No 3) [2013] FCA 525 Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 290 ALR 647 Community and Public Sector Union and Another v Telstra Corporation Limited [2001] FCA 267; (2001) 107 FCR 93 Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd and Steven Rae [2010] FCA 590 Construction, Forestry, Mining and Energy Union v Coal and Allied Operations Pty Ltd [1999] FCA 1531; (1999) 140 IR 131 Construction, Forestry, Mining and Energy Union v Coal & Allied Mining Services Pty Ltd (Mount Thorley Operations/Warkworth Mining) (2008) 175 IR 243 Construction, Forestry, Mining and Energy Union and Orsv Full Bench of the Australian Industrial Relations Commission and Ors [1998] FCA 1404; (1998) 89 FCR 200 Cubillo v Commonwealth [2000] FCA 1084; (2000) 174 ALR 97 Davids Distribution Pty Ltd v National Union of Workers [1999] FCA 1108; (1999) 91 FCR 463 Director, Office of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2013] FCAFC 8 Earle v Castlemaine District Community Hospital [1974] VR 722 General Motors-Holden’s Pty Ltd v Bowling (1976) 51 ALJR 235 Jones v Dunkel (1959) 101 CLR 298, [1959] HCA 8 Jones v Queensland Tertiary Admissions Centre (No. 2) [2010] FCA 399, (2010) 186 FCR 22 Kimpton v Minister for Education of Victoria (1996) 65 IR 317 Maritime Union of Australia v Geraldton Port Authority [1999] FCA 899; (1999) 93 FCR 34 Patrick Stevedores Operations No. 2 Pty Ltd v Maritime Union of Australia (1998) 195 CLR 1 Payne v Parker [1976] 1 NSWLR 191 Police Federation of Australia and Anor v Nixon and Anor [2008] FCA 467; (2008) 168 FCR 340 Re Mornington Peninsula Shire Council [2011] FWAFB 4809 Rojas v Esselte Australia Pty Ltd(No. 2) [2008] FCA 1585; (2008) 177 IR 306 Seymour v Saint-Gobain Abrasives Pty Ltd [2006] FCA 1452; (2006) 161 IR 9 United Firefighters’ Union of Australia v Metropolitan Fire and Emergency Services Board [2003] FCA 480; (2003) 198 ALR 466 WA Supply Co Ltd v The Registrar of Friendly Societies (1904) 6 WALR 199
Date of hearing:	5, 6, 7 and 19 February and 15 April 2013
Date of last submissions:	9 April 2013 (Respondent) 11 April 2013 (Applicant)
Place:	Melbourne
Division:	FAIR WORK DIVISON
Category:	Catchwords
Number of paragraphs:	337
Counsel for the Applicant:	Ms S Bingham
Solicitor for the Applicant:	Davies Lawyers
Counsel for the Respondent:	Mr F Parry SC and Ms C Harris
Solicitor for the Respondent:	Corrs Chambers Westgarth

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
FAIR WORK DIVISION	VID 445 of 2012

JUDGE:	ROSS J
DATE OF ORDER:	2 AUGUST 2013
WHERE MADE:	MELBOURNE

JUDGE:	ROSS J
DATE:	2 AUGUST 2013
PLACE:	MELBOURNE