Wu v DSMJ Pty Ltd (No 2) - [2023] FedCFamC2G 1056

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Wu v DSMJ Pty Ltd (No 2) [2023] FedCFamC2G 1056

File number(s): SYG 541 of 2022

Judgment of: JUDGE D HUMPHREYS

Date of judgment: 21 November 2023

Catchwords: INDUSTRIAL LAW – Fair Work Act 2009 – Professional Employees Award 2000 – adverse action – whether objection to participate in on-call roster a workplace right – coercion – undue influence – unreasonable work hours – accessorial liability.

Legislation:
Fair Work Act 2009 (Cth) ss 45, 62

Workplace Health and Safety Act 2011 (Cth) s 84

Professional Employees Award 2000

Cases cited:
Association of Professional Engineers, Scientists and managers Australia v Peabody Energy Australia Coal Pty Ltd (2022) 318 IR 113; [2022] FCA 945

Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 549

Cummins South Pacific Pty Ltd v Andrew Keenan (2020) 281 FCR 421

United Workers’ Union v Bervar Pty Ltd (T/as Della Fresh Food) [2022] FedCFamC2G 418

Division: Division 2 General Federal Law

Number of paragraphs: 134

Date of last submission/s: 18 August 2023

Date of hearing: 14-18 August 2023

Place: Parramatta

Counsel for the Applicant: The Applicant appeared in person.

Counsel for the Respondents: Ms Brigden of Counsel appeared on behalf of the First, Third, Fourth and Fifth Respondents.

Table of Corrections

5 December 2023
Order 1 changed from:

A declaration be made that the First Respondent was involved in the following contraventions of the Applicant, pursuant to s 550(2) of the Fair Work Act 2009 (Cth) (’the Act”):
a) section 45 of the Act and clause 3.3 of the Professional Employees Award 2000 (“Award”), by failing to make a copy of the Award available to Mr Wu.

to:

A declaration be made that the First Respondent contravened section 45 of the Fair Work Act 2009 (Cth) (the “Act”) and clause 3.3 of the Professional Employees Award 2000 (“Award”), by failing to make a copy of the Award available to Mr Wu.

ORDERS

SYG 541 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
JIANHUA WU

Applicant

AND:
DSMJ PTY LTD

First Respondent

JOE COLON

Second Respondent

MEGAN FARRELL (and others named in the Schedule)

Third Respondent

ORDER MADE BY:

JUDGE D HUMPHREYS

DATE OF ORDER:

21 NOVEMBER 2023

THE COURT ORDERS THAT:
Amended pursuant to rule 17.05(2) (h) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 on 5 December 2023
1.~~A declaration be made that the First Respondent was involved in the following contraventions of the Applicant, pursuant to s 550(2) of the Fair Work Act 2009 (Cth) (’the Act”):~~
~~a) section 45 of the Act and clause 3.3 of the Professional Employees Award 2000 (“Award”), by failing to make a copy of the Award available to Mr Wu.~~
1.A declaration be made that the First Respondent contravened section 45 of the Fair Work Act 2009 (Cth) (the “Act”) and clause 3.3 of the Professional Employees Award 2000…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2023] FedCFamC2G 1056
Decision Date: 21 November 2023

CaseChat Overview and Summary

Wu v DSMJ Pty Ltd (No 2) is a decision from the Fair Work Commission in Australia, concerning the rights of a professional employee under the Fair Work Act 2009 and the Professional Employees Award 2000. The applicant, Mr Wu, brought an objection to adverse action taken against him by his employer, DSMJ Pty Ltd, which included a refusal to participate in an on-call roster and an attempt to have him sign an amendment to his employment contract. The case also addressed whether undue influence or coercion was involved in the employer's actions and whether the work hours were unreasonable.

The court was required to decide whether the applicant's objection to participating in the on-call roster was a workplace right and whether his refusal to sign the contract amendment constituted an exercise of that right. Additionally, the court needed to determine if there was any coercion or undue influence involved in the employer's actions, and whether the work hours were unreasonable. The court also had to consider whether the employer could be held liable for any wrongdoing by its representatives.

The court found that the applicant's objection to the on-call roster was not a workplace right, and his refusal to sign the contract amendment did not constitute an exercise of that right. The court found that the employer did listen to the applicant's concerns but was unable to resolve them to his satisfaction. The court did not find any evidence of coercion or undue influence in the employer's actions, and the work hours were not deemed unreasonable. The court concluded that the employer was not liable for any wrongdoing by its representatives.

The court's final order was that the applicant's objection to adverse action was not upheld, and the employer was not liable for any wrongdoing by its representatives.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

At the conclusion of evidence, the matter was adjourned to allow the parties to file written closing submissions.EVIDENCE OF THE APPLICANT The applicant was the only witness called in his case. The applicant relied upon Affidavits dated 21 December 2022, 4 January 2023, 24 March 2023 and 21 July 2023. The applicant submitted that he was a highly credible witness who gave reliable evidence consistent with that contained within his Affidavits. The applicant submitted that his evidence should be preferred over the evidence of the respondents. The Court, however, prefers the submission of the respondents, that the applicant’s evidence was, at times, deliberately unhelpful, and that he was not prepared to make any reasonable concessions. For example, the applicant refused to concede that following an email from Mr Colon on 10 December 2021, he was rostered to perform on-call duties in the week commencing 13 December 2021. The applicant also refused to accept that he would not be rostered on-call 365 days a year. The applicant refused to accept that Ms Farrell’s email of 15 December 2021 was an attempt to discuss mutual terms of separation. The Court has considerable concerns that the applicant apparently, without the knowledge of the other participants, recorded conversations that took place during video and telephone communications, and only much later, after deposing to those conversations in his Affidavits using the prefix “words to the effect”, did it become apparent that the applicant had in his possession an actual recording of the precise words used in the conversation. This affects in the Court’s view his overall credibility and reliability as a witness. The Court does not accept the applicant’s assertions that Mr Colon told him in a conversation on 14 December 2021 that “you have to sign the amendment to your contract”. The statement Mr Wu relied on in the transcript gave rise to Mr Colon saying, “that was not optional”. Mr Wu replied, “you got back to me in the email that if people don’t be in the roster they won’t get $750.00. To me, that’s an indication of optional”. The Court accepts that the applicant continually conflated signing the amendment to the Contract with participating in the roster. Based on an assessment of all of the evidence, particularly that of Ms Farrell, the Court is reasonably satisfied that the respondents did listen to the applicant’s concerns and did their best to try and meet them. The Court is satisfied the respondents did listen to the applicant’s concerns but were simply unable to resolve them to his satisfaction. While the Court accepts that the applicant is a highly intelligent person, with a considerable capacity to undertake very detailed research into areas where he has not previously worked, such as employment law, he is entirely fixed in the belief that his view, and only his view, is the correct one. The applicant came across, as very concrete in his thinking, enmeshed in detail and completely unable to accept that others may have reasonable, but differing views on matters, or that that there may be grey areas. In his world, matters are either black or white, there is no in-between.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

File number(s):	SYG 541 of 2022
Judgment of:	JUDGE D HUMPHREYS
Date of judgment:	21 November 2023
Catchwords:	INDUSTRIAL LAW – Fair Work Act 2009 – Professional Employees Award 2000 – adverse action – whether objection to participate in on-call roster a workplace right – coercion – undue influence – unreasonable work hours – accessorial liability.
Legislation:	Fair Work Act 2009 (Cth) ss 45, 62 Workplace Health and Safety Act 2011 (Cth) s 84 Professional Employees Award 2000
Cases cited:	Association of Professional Engineers, Scientists and managers Australia v Peabody Energy Australia Coal Pty Ltd (2022) 318 IR 113; [2022] FCA 945 Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 549 Cummins South Pacific Pty Ltd v Andrew Keenan (2020) 281 FCR 421 United Workers’ Union v Bervar Pty Ltd (T/as Della Fresh Food) [2022] FedCFamC2G 418
Division:	Division 2 General Federal Law
Number of paragraphs:	134
Date of last submission/s:	18 August 2023
Date of hearing:	14-18 August 2023
Place:	Parramatta
Counsel for the Applicant:	The Applicant appeared in person.
Counsel for the Respondents:	Ms Brigden of Counsel appeared on behalf of the First, Third, Fourth and Fifth Respondents.

SYG 541 of 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	JIANHUA WU Applicant
AND:	DSMJ PTY LTD First Respondent JOE COLON Second Respondent MEGAN FARRELL (and others named in the Schedule) Third Respondent

ORDER MADE BY:	JUDGE D HUMPHREYS
DATE OF ORDER:	21 NOVEMBER 2023