UNITED VOICE v Carleton Investments Pty Ltd

[2015] FCCA 1446

FEDERAL CIRCUIT COURT OF AUSTRALIA

UNITED VOICE & ANOR v CARLETON INVESTMENTS PTY LTD & ANOR [2015] FCCA 1446

Catchwords:
INDUSTRIAL LAW – Dismissal alleged to be in contravention of a general protection – whether adverse action – application dismissed.

Legislation:  

Fair Work Act2009 ss.336, 340, 342, 343, 346, 361, 546, 566, 570

Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32
Qantas Airways Limited v Australian Licensed Aircraft Engineers Association [2012] FCAFC 63

First Applicant: UNITED VOICE

Second Applicant: AMY LEWIS

First Respondent: CARLETON INVESTMENTS PTY LTD AS TRUSTEE FOR THE WOODCROFT TAVERN BUSINESS TRUST TRADING AS THE WOODCROFT TAVERN

Second Respondent: LENA ATHANASIOU

File Number: ADG 423 of 2014

Judgment of: Judge Street

Hearing date: 22 May 2015

Date of Last Submission: 22 May 2015

Delivered at: Adelaide

Delivered on: 22 May 2015

REPRESENTATION

Solicitors for the Applicant: Mr S. Blewett

Counsel for the Respondent: Mr I. Colgrave

Solicitors for the Respondent: Sparke Helmore

ORDERS

1. The Amended Claim be dismissed.

2. The Application for costs be dismissed

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT ADELAIDE

ADG 423 of 2014

UNITED VOICE

First Applicant

AMY LEWIS

Second Applicant

And

CARLETON INVESTMENTS PTY LTD AS TRUSTEE FOR THE WOODCROFT TAVERN BUSINESS TRUST TRADING AS THE WOODCROFT TAVERN

First Respondent

LENA ATHANASIOU

Second Respondent

REASONS FOR JUDGMENT

1. This is a matter within the Court's jurisdiction under s.566 of the Fair Work Act 2009 in respect of alleged contraventions of ss.340, 343 and 346 of the Fair Work Act2009. In addition to compensation in the sum of $1200 sought on behalf of the second applicant as well as declaratory relief in respect of any contraventions, the first applicant, as it is entitled to if a contravention is established, is seeking remedies in the form of penalties as a civil remedy under s.546.

2. The second applicant was engaged as a casual employee with the first respondent pursuant to a contract dated on 5 April 2013.  That contract identified employment in a casual position as a food and beverage attendant at a particular tavern.  The contract identified the remuneration that would be paid, currently at a particular rate for level 3.  It provided:

   This rate will be adjusted according to the Agreement if you are a casual or junior employee.  Penalty rates and public holiday rates are also set out in the Collective Agreement.

3. Under that Collective Agreement the applicant's position was to be classified as a level 3.  The contract also identified under Working Hours:

   Working hours will vary with operational requirements of the hotel and may be worked Monday to Sunday, twenty-four hours a day.

4. The contract provided that either party wishing to terminate the agreement after the probation period must provide the notice set out in the Collective Agreement and that during the notice period the employer may elect to terminate the employment immediately by making a payment in lieu of notice and that a failure of the employee to provide the required notice will result in wages being deducted in lieu of notice.  There was also a right to terminate for cause.  The duties were identified in the contract as including:

   Your initial duties are set out in your Position Description as attached, and which the Company may vary from time to time.  However, the company and/or the group may assign to you other duties and/or responsibilities from time to time.

5. The second applicant acknowledged that she had accepted that offer of employment and had read and understood those conditions on 5 June 2013.  The second applicant had been working at the particular tavern as a casual since that date up until, relevantly, 8 December 2014 when the second applicant terminated her employment with the first respondent and commenced employment as a casual member working for the first applicant and in due course commenced employment, as I understand the position, on a full time basis with the first applicant, subsequent to that casual employment.

6. The discussions with the second applicant and the first applicant to become a member organiser commenced some months before October 2014.  The evidence of Ms Edwards was that the first applicant seeks to identify people who are union minded and invites them to come and do a program and learn what the first applicant does.  It is clear that by October 2014 the first respondent had had communications with Ms Edwards, as a result of which there had been a formal approval by the first applicant whereby the second applicant would become a member organiser of the first applicant in due course.

7. Being a member organiser does not mean that the second applicant could not continue to be a casual employee of the first respondent.  The central issue in this case concerns a decision by Ms Briscoe, a manager at the relevant tavern, to reduce the hours rostered for the second applicant to nil in respect of for the week beginning 10 November 2014, which roster was published on 3 November 2014, and a reduction to two shifts totalling eight hours, which was published on 20 October, for the week commencing 27 October 2014.

8. In September of 2014 the first respondent communicated with its almost 750 employees a proposal that it was seeking to terminate the applicable Collective Agreement and inviting feedback from its employees as to whether there was support for that termination, with the intention that if it was successfully terminated the modern award covering the hospitality industry, Hospitality Industry (General) Award 2010, would cover the terms and conditions of employment at the various venues of the first respondent.

9. That termination process required as a matter of practicality, feedback from employees and that was something that the second respondent was engaged in seeking to advance.  It was clear that further steps would be required even if there was employee support to get a termination of that agreement in accordance with the Fair Work Act and the necessary approval by the Fair Work Commission.

10. There was a communication between the second respondent and the second applicant on 10 October 2014 in which the following was said (as taken from the affidavit of Ms Athanasiou filed 16 February 2015):

    15. …

    Ms Lewis: “I will be worse off if I mainly work Monday to Friday." 

    Me [Ms Athanasiou]: “Yes but we can do something to overcome this. We could guarantee you a Sunday shift each week or lift you from level 3 to level 4 so that your pay rate increases.”

    Ms Lewis: “I would prefer that my pay rate remains the same.”

    Me [Ms Athanasiou]: “This means that you would be paid the same regardless of when you work, which would include public holidays.”

    Ms Lewis: “Yes that’s what I’m used to.”

11. I accept that that was the conversation that occurred, consistent with the evidence of the second respondent.  The second applicant asserted a conversation in respect of which it was effectively alleged that a threat was made to reduce the second applicant's wages if she did not agree to the termination of the Collective Agreement.  I do not accept the second applicant's version of the conversation.  I do not find the second applicant to be a reliable witness. I do not accept the second applicant’s conversation asserting that head office participated in the discussion by the second respondent in respect of Mr Wilmot.  I do not accept that anyone other than Ms Briscoe was involved in the decision to reduce the hours of the second applicant. The second applicant gave evidence as to the creation of documents being by the first respondent that was clearly incorrect.

12. The second applicant swore an affidavit identifying a position that was clearly incorrect.  The second applicant's evidence as to the commencement of discussions relating to employment with the first respondent conflicts with that of Ms Edwards who identified the commencement of those discussions some months before the complaint in respect of the rostered hours for the second applicant.  The second applicant's evidence about conversations and her recollection of those conversations was clearly impacted by her own interests.  In that regard, in respect of a conversation identified in her affidavit on about 15 October 2014 where she was told to stop handing out information on behalf of the first respondent, she gave evidence that she was told not to talk about the union and then she recanted from that evidence.

13. It is also a matter of concern in relation to the evidence of the second applicant that there was no identification of the income being received from the first respondent in respect of a period in respect of which this claim for $1200 was being advanced.  Further the supplementary affidavit of the second applicant discloses only the steps taken on 3 December 2014 to commence as a casual member organiser but did not identify either in that affidavit or the earlier affidavit the communications taking place in respect of becoming a member organiser or the fact that those communications had reached the point by October 2014 where it had been agreed that she would become a member organiser and this occurred prior to the time of the complaint concerning the reduction in the hours of roster.

14. It is also the case that that was a matter in respect of her proposed engagement with the first respondent that was not disclosed to Mr Thompson at the time of writing a letter on behalf of the first respondent dated 31 August 2014 to the second respondent.  Ms Edwards agreed in evidence that she had assumed that would have been a matter disclosed by the second applicant to Mr Thompson.  There was absolutely nothing wrong with the applicant becoming a member organiser and, indeed, it was a step that she was entitled to take.

15. The applicant’s failure to disclose that agreement to become a member organiser to the first respondent at the time that it occurred, to Mr Thompson when he wrote the letter of demand for the second applicant or candidly in the second affidavit in these proceedings are further reasons for concern in respect of the second applicant's credibility. I found the second respondent to be an entirely credible witness and I accept her evidence in preference to that of the second applicant. In relation to the allegation involving a contravention of s.343 of the Act I take it into account the objects identified in s.336 and the principles identified in Qantas Airways Limited v Australian Licensed Aircraft Engineers Association [2012] FCAFC 63, specifically at [58] in relation to the cause of action advanced under s.343.

16. I find that there was no conduct by the respondents that was aimed at negating choice by the second applicant in relation to the termination of the Collective Agreement and that there was no conduct which amounted to pressure or compulsion on the will of the second applicant.  I find that the respondents in seeking to obtain employee support did not engage in any conduct aimed at negating the choice of the employees and indeed the form circulated is clearly inconsistent with a lack of such choice. I do not accept the second applicant’s assertion that there was anything said by the second respondent to the effect that the second applicant would be worse off if she did not support the termination of the agreement.

17. There was nothing in the steps taken by the respondents in circulating and seeking information from employees to support the termination of that agreement that in any way amounted to unlawful, illegitimate or unconscionable conduct. The allegation of contravention of s.343 has no substance. I find the second respondent had no prohibited reason in any steps she took and I find the respondents had no intention to engage in any proscribed conduct. In relation to the allegation of a breach of s.340 in respect of the communication between the second respondent and the second applicant, the Court again takes into account the objects identified in s.336, and the scheme of the Act, including s.361, and the principles discussed in the Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32 at [5], [15]-[21], [41]-[45], [127]-[129].

18. I also take into account the expanded meaning of "adverse action" in s.342. As I do not accept the version of the conversation of the second applicant in the communications with the second respondent, I do not accept that there was any threat of adverse action by the respondents to the second applicant. I find that the respondents were legitimately pursuing in a lawful manner their endeavour to gauge the response of employees in respect of the proposed termination of the Collective Agreement which required a number of steps to be taken before a replacement award could be successfully implemented.

19. I am satisfied that those steps of the respondents were not taken for a prohibited reason and were taken for the legitimate business interests of the first respondent. The application in relation to a contravention of s.340 by the first and second respondents arising from the conduct on 10 October 2014 was not made out.

20. In relation to the decision to reduce the rostered hours of the second applicant I prefer the evidence of Ms Briscoe to that of the second applicant.  I reject the proposition that the evidence of Ms Briscoe was one of shifting positions and inconsistent assertions.

21. This is a case where from day 1 Ms Briscoe had identified to the second applicant that the reason for the reduction in hours was the engagement of a full-time employee, Mr Wilmot.  It is clear from the subjective evidence of Ms Briscoe that there were other matters taken into account by her in reducing the second applicant's hours in the two rosters.  The engagement of Mr Wilmot as a full-time employee had the overall impact of a reduction of wages that had to be paid in respect of the particular tavern.

22. It is clear from the evidence of Ms Briscoe that in deciding to reduce the roster in respect of the hours of the second applicant she was taking into account as a reason the object of reducing wages.  It is also clear at the same time that there was another employee whose family circumstances were such that warranted consideration in respect of the allocation of hours and I accept that that was a further reason in the mind of Ms Briscoe.  The second applicant lacked appropriate qualification to work in the gaming areas and Ms Briscoe identified that as a further reason taken into account in the reduction of hours in the two rosters, which I also accept.

23. The applicant sought to criticise those reasons by tallying her the hours in respect of which Mr Wilmot's full-time engagement and the hours being worked by the person with particular family circumstances and sought to identify the history in relation to the gaming qualification as having no impact on the earlier engagement and earlier rosters of the second applicant as a casual employee. I reject these criticisms as to the real reason. The proposition of the applicants was that the reduction in hours could not be explained simply by a reference to a comparison of the hours that would have increased as a result of the full-time employment of Mr Wilmot and as a result of the desired preferential treatment given to another employee. This was a mathematical approach by the applicants to the alleged reasoning of the first respondent through Ms Briscoe which ultimately is an objective exercise for the Court to determine real reason or reasons. I find that this is not a case in which Ms Briscoe engaged in any tallying of hours in fixing the roster. I find that the difference in a simplistic equation by tallying hours does not undermine the credit of Ms Biscoe, establish an unconscious reason or establish a prohibited reason. Ms Briscoe had, in fact, provided a further reason in her affidavit in which she had said:

    32. My view was that a change in hours from week to week was part of casual employment being on an "as needs" basis.

24. That part of her reasoning was never challenged or explored in cross examination and was contrary to a conscious or unconscious role of tallying numbers or a prohibited reason. In cross-examination Ms Briscoe acknowledged that there was another factor in her mind, taking into account the context of the inevitable reduction of hours from the full-time employment of Mr Wilmot and the desire to assist the person with particular family circumstances, which would mean that the available hours were not likely to be sufficient for the longer term interests of the second applicant.  It was in those circumstances that Ms Briscoe acknowledged that she included in making her decision to reduce the second applicant's hours a desire to encourage the second applicant to look for work elsewhere. That desire was explained to be because of the inadequate hours on the whole that would be available for the second applicant due the identified reasons by Ms Briscoe.

25. It was conceded by counsel for the applicants that if the said desire was a real reason it was not a reason which would be a prohibited reason under the Fair Work Act. I find that this desire was another real reason of Ms Briscoe for her decision and I find it was not a prohibited reason. I find that there was no unconscious prohibited reason for the reduction in the roster and no conscious prohibited reason. The applicants sought to maintain that the context in which the endeavoured change from the existing Collective Agreement was being pursued and the communication by the second applicant that she opposed that proposed termination so far as she was concerned, was corroborative of the evidence given by the second applicant of conversations asserting that she was engaging in conduct of an industrial kind and promoting the interests of the union and that that was the real reason why there was a reduction in the roster. I reject the second applicant’s version of the conversation and I reject the circumstances identified as being corroborative of the second applicant. I find that the second applicant’s conduct of an industrial kind or promoting the interests of the union was not a reason of Ms Briscoe in her decision to reduce the applicant’s hours in the rosters. Nor was that conduct of the applicant a reason of the first respondent in the reduction of the roster.

26. It is clear, and I do accept, that the second respondent did engage in industrial activity in disseminating information on behalf of the union.  That is an activity that she was entitled to engage in as were all employees.  It is the case that the second applicant did not wish to support the termination of the Collective Agreement and did not sign a document supporting that termination.  I do not accept that either of those matters were ones that activated Ms Briscoe in the decision-making process which she engaged in in reducing the hours of the second applicant on the two rosters.

27. I find that the reason why the hours of the second applicant were reduced was because of the desire of the first respondent and Ms Briscoe to reduce wages, reflected by the engagement of Mr Wilmot on a full time basis, together with the desire of Ms Briscoe to give preferential treatment to the person with family circumstances of a pressing kind and taking into account the second applicant's limited qualifications as well as Ms Briscoe's desire to encourage the applicant to seek employment elsewhere in circumstances where her likely hours were going to be reduced because of the above matters.  I find that none of those reasons are a prohibited reason under the Fair Work Act and that the first respondent and Ms Briscoe did not engage in any conduct for a prohibited reason.

28. I find that there was no breach of s.340. I find there was no breach of ss.346 or 343 by the first respondent and no breach of the Act in relation to the second respondent. (The Court then heard argument on costs)

1. This is an application by the respondents for costs under s.570. This is a matter in respect of which there was an issue arising under s.570(2)(a) in respect of these proceedings in circumstances where the reason why the adverse action was taken was identified at the outset and where the case in relation to joinder of the second respondent was hopeless and vexatious. However, the respondents have abandoned any claim for relief in respect of s.570(2)(a) and have sought to advance a claim for costs in respect of the communications between the parties.

2. I am not satisfied that this is a case in which, given the abandonment of the potential entitlement to costs under s.570(2)(a) in respect of proceedings that I would otherwise have found were vexatious and commenced without reasonable cause, it is appropriate to take those factors into account in respect of the application under s.570(2)(b). In those circumstances I do not regard the communications between the parties in respect of the competing without prejudice communications as giving rise to circumstances where it can be said the unreasonable act or omission caused the other party to incur costs in circumstances where the issue of the application of s.570(2)(a) has been abandoned. The application for costs is dismissed.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  1 June 2015