BHP Coal Pty Ltd v Construction, Forestry, Mining and Energy Union [2013] FCA 1291
| IN THE FEDERAL COURT OF AUSTRALIA | |
| DATE OF ORDER: | |
| WHERE MADE: |
THE COURT DECLARES THAT:
1. The first respondent has contravened s 340 of the Fair Work Act 2009 (Cth) (“Fair Work Act”) by threatening to and/or taking or organising industrial action against the applicant, by seeking to impose and/or imposing a ban, limitation or restriction on the performance of unrostered overtime by employees employed by the applicant at the Peak Downs mine.
2. The first respondent and the fifth respondent have contravened s 345 of the Fair Work Act by knowingly or recklessly making false or misleading representations about the applicant’s workplace right to require its employees to work reasonable unrostered overtime, in accordance with cl 19.3 of the BHP Coal Pty Ltd Workplace Agreement 2007 (“2007 Agreement”).
3. The first respondent and the fifth respondent have contravened s 349 of the Fair Work Act by knowingly or recklessly making false or misleading representations about the obligation of the applicant’s employees to engage in industrial activity.
4. The first respondent and the fifth respondent have contravened s 417 of the Fair Work Act by organising or engaging in industrial action against the applicant before the nominal expiry of the 2007 Agreement.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
| QUEENSLAND DISTRICT REGISTRY | |
| FAIR WORK DIVISION | QUD 103 of 2011 |
| BETWEEN: | BHP COAL PTY LTD (ACN 010 595 721) Applicant |
| AND: | CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION First Respondent TERRY LOW Second Respondent ROB LAW Third Respondent KEVIN ADAMS Fourth Respondent SCOTT LEGGETT Fifth Respondent |
| JUDGE: | COLLIER J |
| DATE: | 2 DECEMBER 2013 |
| PLACE: | BRISBANE |
REASONS FOR JUDGMENT
INTRODUCTION
1 On 12 May 2011 the applicant, BHP Coal Pty Ltd, filed an application and a statement of claim in which it sought relief under the Fair Work Act 2009 (Cth) (“Fair Work Act”) and the Judiciary Act 1903 (Cth). In summary, the applicant claims that the respondents have contravened the Fair Work Act by applying an unauthorised limit to workers employed by the applicant at its Peak Downs mine (“the mine”) working unrostered overtime as a result of the imposition by the first respondent on its members of an overtime policy (“the overtime policy”).
2 After the applicant closed its case the respondents submitted that there was no case to answer. The respondents also elected to call no evidence in the proceedings.
3 I have formed the view that the applicant has been successful in part in respect of its claims. I now turn to my reasons for this finding.
BACKGROUND
4 The applicant employs coal mine workers at seven mines in Central Queensland. One of those mines is the Peak Downs mine, which is a large, open-cut mining operation south of Moranbah with a production capacity of nine million tonnes of high-quality hard-coking coal per annum. The mine operates continuously.
5 It is not in dispute that the first respondent (“the CFMEU”) conducts its business through Central Council and District Branches, in addition to Lodges established at each mine, including the Peak Downs mine (“the Peak Downs Lodge”). The second, third, fourth and fifth respondents are officers of the CFMEU, namely at material times:
the second respondent was the President of the Peak Downs Lodge;
the third respondent was the Vice-President–Engineering of the Peak Downs Lodge;
the fourth respondent was the Vice-President–Production of the Peak Downs Lodge;
the fifth respondent was the Secretary and Treasurer of the Peak Downs Lodge.
6 Between June 2007 and April 2008 representatives of the applicant, the first respondent and two other unions negotiated the BHP Coal Pty Ltd Workplace Agreement 2007 (“2007 Agreement”) (annexure MS-1 to affidavit of Mark Antony Stroppiana sworn 6 September 2011). Evidence was given in respect of the negotiation process by Ms Julia Fellows, who has been an Industrial Relations officer with the applicant in Brisbane since 2001 and who participated in the negotiations for the 2007 Agreement as a representative of the applicant.
7 At the time of the 2007 Agreement negotiations the Workplace Relations Act 1996 (Cth) applied. The 2007 Agreement was lodged on or about 15 May 2008 with the Workplace Authority, which subsequently gave approval. The 2007 Agreement had a nominal expiry date of 16 May 2011. When the Fair Work Act came into force on 1 July 2009, item 2 of Sch 3 of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) preserved the continuation of the 2007 Agreement.
8 It is not in dispute that the 2007 Agreement was binding at material times.
Application of 2007 Agreement
9 Clause 4.2 of the 2007 Agreement states that the agreement binds the applicant and “the Unions”, being:
the first respondent – mining and energy division;
Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia; and
Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union.
10 The 2007 Agreement applies to members of the Unions who are employed as mineworkers by the applicant at seven mines including the Peak Downs mine: cl 4.3.
11 Clause 4.4 of the 2007 Agreement relevantly provides:
This Agreement operates to the exclusion of all other industrial instruments, which would otherwise apply to the employment of persons who fall within the incidence and application of this Agreement. Without limiting the generality of the above, this Agreement expressly excludes all protected award conditions (as defined in Section 354 of the Workplace Relations Act 1996 as amended from time to time), including terms in the Award and any other award that are about rest breaks, incentive based payments and bonuses, annual leave loadings, state public holidays and days in substitution thereof, monetary allowances, overtime and shift loadings and penalty rates. The complete terms and conditions that apply to these areas are, where applicable, contained in this agreement and fair and reasonable compensation has been provided through the remuneration and other benefits in this agreement for the exclusion of these protected award conditions.
12 Schedule “B” of the 2007 Agreement applies specifically to the mine. Clause 5 of that Schedule provides that the agreement will negate any prevailing custom and practice.
Clause 19.3 of the 2007 Agreement
13 A key clause of the 2007 Agreement for the purposes of this proceeding is cl 19.3, which states:
19.3 Reasonable Overtime
In accordance with prevailing arrangements, employees may be required to work reasonable overtime.
The Company’s operational requirements continue to be such that overtime will be required on a regular and ongoing basis in accordance with the roster arrangements at the mine.
The Company will continue to endeavour to provide notice to employees of its overtime requirements through its rostering arrangements, but may require unrostered overtime to be worked in addition to their rostered overtime, subject to prevailing operational requirements.
(Emphasis added.)
14 Ms Fellows deposed that the previous workplace agreement between the parties had provided – relevantly:
19.3 Reasonable Overtime
An employee must work reasonable overtime, as required by the Company.
(BHP Coal Workplace Agreement 2004 (“2004 Agreement”))
15 Ms Fellows deposed that the applicant proposed the variation to cl 19.3 of the 2004 Agreement, in the terms which became cl 19.3 of the 2007 Agreement, and that the unions (including the first respondent) accepted this amendment.
16 Ms Fellows also gave detailed evidence as to the process of negotiation whereby cl 19.3 of the 2007 Agreement was settled. In particular, a series of Questions and Answers was prepared by the applicant, in consultation with the first respondent and other unions. The purpose of the Questions and Answers was to explain to employees the changes that the negotiating parties had made to the 2004 Agreement. Specifically, row 26 of the Questions and Answers table posited concerning cl 19.3:
Can I refuse to work overtime if I don’t want to?
As payment for rostered overtime is built into employees’ aggregate rates of pay (and employees have agreed to such aggregate arrangements as being beneficial for them), they are required to work such overtime. Where employees are requested to work additional unrostered overtime, they are expected to do so to enable efficient operations. However, where an employee has pressing family responsibilities which make the working of such overtime very difficult, in accordance with the provisions in the Fair Pay and Conditions Standard under Workchoices, they are entitled to decline to work the overtime in such circumstances.
17 Ms Fellows deposed that at no time did any representative of the first respondent raise any issues for clarification in relation to cl 19.3 of the Questions and Answers document, and the Questions and Answers document was issued to (inter alia) employees at the mine.
18 Ms Fellows deposed that when the words “in accordance with prevailing arrangements” were agreed, the previously existing arrangement in cl 19.3 of the 2004 Agreement was that employees would work reasonable overtime. The “prevailing arrangements” did not include any policy of the first respondent regulating overtime. The respondent did not mention any applicable union overtime policy during the course of negotiating cl 19.3 of the 2007 Agreement.
19 With respect to the third paragraph of cl 19.3 of the 2007 Agreement, Ms Fellows deposed that the phrase “subject to prevailing operational requirements” meant that unrostered overtime could only be required by the applicant if there was a genuine operational need.
Number of employees and pay structure at the mine
20 Approximately 849 employees and 893 contractors work at the mine. As at March 2011, the applicant employed approximately 653 production and engineering employees, who are eligible to become members of the first respondent and other unions at the mine (affidavit of Mark Antony Stroppiana sworn 6 September 2011 paras 11-12). Mr Stroppiana deposed during oral evidence-in-chief that in the three years from mid-2009 to mid-2012 the applicant had employed approximately 100 new employees at the mine (transcript 17 July 2012 p 33 ll 10-15).
21 Mr Stroppiana deposed that the vast majority of employees covered by the 2007 Agreement work the 7 day roster, even though a range of rosters operate at the mine. In order to meet the applicant’s operating requirements an overtime component is built into the shifts of employees on the 7 day roster. For example, these employees will work up to 12 hours and 30 minutes per shift. Mr Stroppiana deposed that of those hours, 10 are ordinary hours, and the additional 2 hours and 30 minutes are overtime hours. However, employees are paid an aggregate weekly rate of pay, akin to a salary, which already includes payment for these overtime hours. Schedule B of the 2007 Agreement sets out these rates of pay.
22 Finally, Mr Stroppiana deposed that when employees on the 7 day roster are absent from work due to illness or training, or where major works are occurring, gaps in the roster must be filled to ensure the continuous operation of the mine. Due to the mine’s remote geographical location, Mr Stroppiana deposed that the most effective way to fill those gaps is from additional unrostered overtime.
Alleged overtime policy of the first respondent
23 Mr Stroppiana gave evidence that he had been the manager of Human Resources at the mine since February 2008 and that as part of his role he was responsible for ensuring that work at the mine was performed in accordance with the terms of the 2007 Agreement. He also regularly advised managers on the application and operation of provisions of the 2007 Agreement, and negotiated the resolution of workplace disputes (affidavit of Mark Antony Stroppiana sworn 6 September 2011 paras 14-15). From February 2007 to January 2008 he was the senior human resources advisor for the maintenance department at the mine.
24 Mr Stroppiana deposed that in late March 2011 Ms Jorja Roberts of HR told him that Mr Peter Gottke (a supervisor in the maintenance service bay area) had discovered a document mentioning an “Overtime Policy” in the maintenance bay service area. Approximately 28 employees work in the service bay area (transcript 17 July 2012 p 36 l 5).
25 Mr Gottke subsequently gave Mr Stroppiana the following document (annexure MS-2 to the affidavit of Mark Stroppiana):
26 It is not in dispute that the applicant had not authorised or permitted any union overtime policy in this form or otherwise.
27 Mr Stroppiana said that prior to March 2011 he was not aware that the first respondent had an overtime policy.
28 Mr Stroppiana deposed that he walks around the mining site about once a week to look at the notice boards, including to check that the union has not placed any offensive material on the noticeboards. He said that he had never seen the particular notice in the crib room on his rounds, although he did not normally enter the crib rooms while on his inspections. During cross-examination, Mr Stroppiana explained that the crib rooms were lunchrooms for employees in various parts of the mine, and that there were are at least 10 crib rooms at the mine.
29 Mr Stroppiana deposed that the applicant pays the $90.00 mentioned in the for your information document to the first respondent’s members who attend a monthly meeting, pursuant to an agreement between the BHP Mitsubishi Alliance and the first respondent.
30 The respondents admit at paragraph 5 of the defence that this document is and was displayed on a notice board in the service bay crib room at the mine.
31 Mr Robert McCreadie was the superintendent of pre-strip at the mine from December 2004 until he went on leave in July 2011. He was responsible for looking after the day to day production, safety, costs and scheduling in the pre-strip area. Mr McCreadie deposed that on many occasions workers would state to him that they had already done one shift of overtime, and that they could not do another shift of overtime because that was against union policy. Mr McCreadie would typically respond to the employees that they worked for the applicant and not the CFMEU (affidavit of Robert Andrew McCreadie sworn 5 December 2011 para 10).
32 Between 1998 and 2006 Mr Michael Schafferius was the area delegate in the pre-strip area at the mine. The area delegate role is effectively a role of the first respondent which involved Mr Schafferius assisting with the resolution of issues arising between members of the crew and the superintendent or supervisor. As part of his union duties as an area delegate, Mr Schafferius was required to participate in monthly union committee meetings at the mine. He deposed that the first respondent’s union policy would be frequently discussed at these meetings (affidavit of Michael Ian Schafferius affirmed 1 December 2011 para 12).
Documents provided by respondent during discovery
33 Ms Rebecca Mason is a solicitor for the applicant. To her affidavit affirmed 6 September 2011, Ms Mason annexes documents that were provided to the applicant by the first respondent by way of discovery on or about 19 July 2011.
The first respondent’s membership pack
34 Annexure RJM-5 to Ms Mason’s affidavit comprises 28 undated documents that the first respondent provided under the heading “CFMEU Peak Downs Lodge Membership Pack” (“membership pack”).
35 The first document in the membership pack is an undated letter welcoming members to the union. It is signed by the fifth respondent. It is not in dispute that the information in the membership pack for new union members was distributed with that letter. The letter was as follows:
36 The second document in this membership pack shows the structure of the Peak Downs Lodge. In relation to the Lodge Executive, the document states:
Made up of the President, Secretary/Treasurer, Vice President Engineering and Vice President Production. The election for these positions is held annually at the AGM (usually October) and every lodge member is required to vote. The executive are responsible for representing the Peak Downs membership at all levels within our Union, in company disputes, EA negotiations, local Policy and Procedure issues, as well as any local issue that cannot be resolved by Area or Shift delegates.
37 The third document in the membership pack is headed “For Your Information”. It reads as follows:
38 The CFMEU Mining & Energy – Membership & Application Form, being the sixth document of the first respondent’s membership pack, has a fee option that states, “I am eligible for full lodge membership and will pay relevant lodge fees”.
39 Later in the membership pack is a document entitled “Shift Union Delegates – Induction for new employees/members (Including Temps)”. That document reads relevantly:
• Overtime policy – Explain the unions [sic] overtime policy and the major reasons behind it. Eg. One extra shift per cycle for 7 day roster workers. Max hours 56 for 5 day roster.
40 The second last document in the membership pack is a letter from Jim Valery, District Secretary of the Queensland District Branch of the CFMEU. It congratulates an employee on his or her decision to become part of the Queensland District of the CFMEU Mining and Energy Division, and attaches the membership card. The “For your information” document is then reproduced in very similar terms to the third document of the membership pack with no difference in respect of the description of the overtime policy.
Minutes of meetings and Convention resolutions
41 The CFMEU Mining and Energy Division’s National Convention held in Queensland from 26-30 May 1997 carried the following resolution in relation to District overtime:
That this Convention of the CFMEU Mining and Energy Division reinforces and recognises the autonomy of the Districts in the formation and application of policies in relation to the working of overtime within the District.
(annexure RJM-11 to affidavit of Rebecca Jane Mason affirmed 6 September 2011.)
42 The minutes of the District Convention of the CFMEU – Mining and Energy Division held in Rockhampton on 3-11 November 1997 provide inter alia as follows (annexure RJM-6 to affidavit of Rebecca Jane Mason affirmed 6 November 2011):
DAY TWO
AGENDA ITEMS
Overtime Limit – Gregory, Crinum, Central, Goonyella/Riverside
Gregory spoke to their Agenda Item – Left to the Lodges to administer
Central spoke to their Agenda Items – Oh & S policy that they don’t work 12 hour days and 7 days a week
Moved: F. Doherty
Seconded: M. Weise
Queensland District overtime restrictions be lifted and left to Lodges to run with site OH & S Policy formed.
DEFEATED
• Peak Downs spoke against the overtime limit being lifted
• Eltin spoke against the overtime limit being lifted
• Norwich Park spoke about the current policy and that it was restrictive and should be re looked at and re worded
• South Blackwater we need the OH & S policy from the District and it is better to follow the safety aspect instead of the Overtime policy and spoke in support to change the overtime policy
• Blair Athol spoke about the trial at his mine and hardly any overtime is being worked. Spoke in favour of the motion.
• Crinum spoke about their shift lengths – talked about the statutory duties for Check Inspectors and the amount of overtime that they are working. Spoke against the motion.
• M. Crane spoke against the motion
• Bocum Lodge spoke about the motion and how it will be implemented from Lodge to Lodge
• Gladstone Power – the repercussions of people working excessive overtime and the injuries that result from this. We should be creating more jobs and not letting people work excessive overtime and taking away those jobs.
• Blackwater spoke against the motion and the policy should stay as is. Some pits that are winding down and they will be run by overtime
• Oaky spoke in favour of the motion and that at their Mine they had to lift the overtime policy to keep members
• Callide spoke against the policy, we should be creating more jobs not working overtime. There is a Health and Safety aspect to all of this.
• Oaky North spoke in favour of the motion as they feel they would loose members also
• Tony Wolfenden against the motion and feels the Lodge should be administering the policy on a Lodge by Lodge basis.
• Ebenezer Open Cut spoke against the motion and spoke regarding the 35 hour week and the Company can blow us out of the water because of the amount of overtime that is actually being worked.
• Saraji spoke about what is happening at their mine.
• Curragh spoke for the motion and feel that pit will work what ever they choose once they come away from Convention.
• North Goonyella they work out the average for the week and the pit has a structure put in place to cover shortages.
RESOLUTION: 2
Moved: P. Hannay
Seconded: I. Blackwood
That the 13 hours per week overtime limit remain as a general policy, however the District Executive is empowered to exempt, either in whole or in part, the Lodges from the operation of the policy based on any special circumstances which exist at a mine; provided adequate control measures are put in place by the Lodge to adequately address Health and Safety concerns; and taking account of the shift systems that are in place at the mine.
CARRIED
(Emphasis and errors in original.)
43 The minutes of the Peak Downs Lodge Committee Meeting of 27 April 2010 include a dot point that reads: “OT needs to be monitored @ 1 every 16 days” (annexure RJM-9 to affidavit of Rebecca Jane Mason affirmed 6 September 2011).
44 The minutes of the CFMEU Peak Downs Lodge monthly meetings dated 8 and 12 February 2011, read relevantly as follows (annexure RJM-10 to affidavit of Rebecca Jane Mason affirmed 6 September 2011):
Date: 8th February 12th February 2011
Attendees: B & C crews A & D crews
Apologies: Terry Low Terry Low, Kev Adams & Rob Law
…
Overtime
• Lodge policy is 1 overtime shift per 16 shifts
• Was discussed from the floor that union members should do more as contractors are hooking in.
• Who’s watching contractor hrs?
…
General Business
• …
• Who’s looking at contractor hrs., we should be doing it instead, they are forever doing It (need feedback)
• Tank asked who was willing to do unlimited overtime
o 3 for unlimited
o 10 for none ever
o The rest for leave it the way it was
• Pumps has 9 Connie’s and 2 perm so how’s perms not doing overtime going to get people employed when Connie’s more than willing to do it. Same across a lot of departments. Field crew/Plant etc (need feedback)
• Essential services, it’s not in the agreement anywhere, do we have to do it? (need feedback)
• …
Other documents
45 Annexure RJM-4 to the affidavit of Ms Mason is an undated email from Mr Marty Crane to Mr Tim Conway. The email states:
Dear Tim
The overtime policy for Peak Downs is as follows:
1. Seven (7) day roster employees are allowed to work one overtime shift per work cycle. (Work cycle last [sic] 16 days, of which 8 are working days).
2. Five (5) day roster employees are allowed to work in total 56 hours per week. Five (5) day roster employees have 1 ½ hours overtime built into their shift. ie 8 ½ shift, except on Monday day and night shift when their roster is for 12 ½ hours so as afternoon shift does not attend work on Monday.
Trusting this explains the position for you.
Marty Crane
President
Peak Downs Lodge
46 Rule 12(vii) of the Rules of the CFMEU, Mining and Energy Division and its District Branches, in force at relevant times, states:
Powers and Duties of Lodge Committees
The Lodge Committee shall do whatever may be necessary to ensure that the health, lives and interests of their fellow workers are to the utmost protected.
…
(Page 85 of annexure RJM-12 to affidavit of Rebecca Jane Mason affirmed 6 September 2011.)
HISTORY OF THE PROCEEDINGS
47 The applicant filed an application and statement of claim on 12 May 2011, alleging that the respondents had contravened the Fair Work Act with respect to an overtime policy. On 14 June 2011, Greenwood J made consent orders for the respondents to file a defence and an affidavit of documents. Order 2 relevantly read:
2. The Respondents file and serve an Affidavit of Documents, which lists all of the documents within the Respondents’ possession in the following categories, on or before 4 July 2011:
a) Documents pertaining to the “Overtime Policy” in paragraph 4 of the Statement of Claim;
b) Any union or lodge resolutions or motions including but not limited to correspondence, emails, posters or flyers, which relate to the “Overtime Policy”;
c) Minutes from CFMEU meetings of members in the period between 15 May 2008 and the present that relate to the “Overtime Policy;” and
d) Any other relevant document, pertaining to the “Overtime Policy.”
48 The respondents filed their defence on 28 June 2011. Paragraph 4 of the defence reads:
The Respondents admit the facts alleged in paragraphs 15, 16 and 17 of the Statement of Claim and say that the words in the document reflect the view of the members of the First Respondent engaged by the Applicant as to the appropriate level of overtime that should be worked at the workplace.
49 The respondents served a list of documents relevant to discovery on 27 July 2011 (annexure RJM-2 to affidavit of Rebecca Jane Mason affirmed 6 September 2011).
50 The applicant served a request for further and better particulars in relation to the defence on 9 August 2011 (exhibit MFI-1). Relevantly, the request read:
In respect of paragraph 4
1. Provide the usual particulars and the usual details of why the Respondents say that the words in the document reflect the view of the members of the First Respondent engaged by the Applicant as to the appropriate level of overtime that should be worked at the workplace, including:
a. The names of the members who hold this view;
b. The time at which the members held this view; and
c. How each of the Respondents is aware that the members hold this view.
51 The legal officer of the first respondent, Ms Amanda Threlfall, responded to the request as follows on 9 August 2011 (MFI-2):
In relation to 1(a) and (b) the views of the members of the union concerning overtime are expressed in resolutions passed at meetings of the various representative bodies of the union and at meetings of members. There was a National Convention Resolution in relation to Overtime adopted by delegates attending the CFMEU Mining and Energy Divisions’s National Convention held in Queensland from 26 to 30 May 1997.
On 04 November 1997, there was a resolution carried at the Queensland District Board of Management meeting that the 13 hours per week overtime limit remain as a general policy. In or around 1998, there was a monthly meeting of the Peak Downs Lodge in relation to the Queensland District Overtime Policy. The Peak Downs Lodge endorsed the District Policy of an overtime limit of 13 hours each week. That resolution adopted the position that at Peak Downs Mine the policy amounted to overtime being limited to one shift of overtime in 16 shifts.
In relation to 1(c) the Second, Third and Fourth Respondents are aware of these views because they were present at the lodge meetings in 1998.
Application by respondent of no case to answer, and election to call no evidence
52 The applicant opened its case on 17 July 2012. The applicant relied on the following evidence:
Affidavit of Mark Antony Stroppiana sworn 6 September 2011;
Affidavit of Helen Julia Fellows sworn 6 September 2011;
Affidavit of Ian George Harris affirmed 6 September 2011;
Supplementary affidavit of Ian George Harris affirmed 30 November 2011;
Affidavit of Robert Andrew McCreadie sworn 5 December 2011;
Affidavit of Rebecca Jane Mason affirmed 6 September 2011;
Affidavit of Michael Ian Schafferius affirmed 1 December 2011; and
Affidavit of Gary Edward Hughes affirmed 1 December 2011.
53 After the applicant had closed its case, Counsel for the respondents stated that he wished to make an application that there was no case to answer (transcript 17 July 2012 p 53 ll 30-32). Mr Crawshaw SC made oral submissions concerning this application.
54 After Court was adjourned on 17 July 2012, my associate sent the parties the following email:
In relation to tomorrow’s hearing in BHP v CFMEU QUD103/2011, her Honour asks me to inform you that she will also require submissions from Counsel as to whether the first respondent should be required to elect to call no evidence before a decision is made on the first respondent’s submission of no case to answer. In particular, her Honour directs the attention of the parties to comments of Kenny J in Cahill v CFMEU (No 2) (2008) 170 FCR 357 at 365-370 and Tracey J in Helal v McConnell Dowell Constructors (Aust) Pty Ltd [2011] FCA 1344 at [28]-[36].
55 At the continuation of the hearing on 18 July 2012, Mr Crawshaw SC for the first respondent stated:
… we looked at the authorities your Honour has drawn to our attention and we don’t make any submission that an election is not required and we’re willing to make that election.
(Transcript 18 July 2012 p 82 ll 11-13.)
CLAIMS OF THE APPLICANT
56 In its application and statement of claim filed 12 May 2011 the applicant claims, in summary, as follows:
The overtime clause in the 2007 Agreement entitles the applicant to require its employees to work unrostered overtime in addition to their rostered overtime, subject to prevailing operational requirements (cl 12 statement of claim).
The CFMEU has issued a document which:
o states that there is a limitation placed on the amount of overtime that employees of the applicant can work at the mine, namely that employees working a 5 day roster cannot work more than 56 hours in one week and employees working a 7 day roster can only work one overtime shift per 16 day cycle (cl 16 statement of claim);
o states – inter alia – that the limitation on overtime is to help the CFMEU get more new employees a job (cl 17 statement of claim);
o has been given or made available by the CFMEU, with the permission or knowledge of the second to fifth respondents, to all members of the Peak Downs Lodge who are employees of the applicant in that:
▪ it is and was issued by the CFMEU to all new employees of the applicant who are members of the CFMEU;
▪ it is and was displayed on a notice board in the service bay crib room at the mine (cl 18 statement of claim).
o is a direction made by the CFMEU to its members at the mine to limit the working of overtime as prescribed by the document (cl 19 statement of claim).
The respondents breached cl 19.3 of the 2007 Agreement by applying a limit to working unrostered overtime as required by the applicant. This is a contravention of s 50 of the Fair Work Act (cl 20 statement of claim).
The respondents have taken adverse action by threatening to and/or taking or organising industrial action against the applicant by seeking to impose and/or imposing a ban, limitation or restriction on the performance of unrostered overtime by employees that the applicant employs at the mine. This is a contravention of s 340 of the Fair Work Act.
In contravention of s 345 of the Fair Work Act the respondents knowingly or recklessly made false or misleading representations about the applicant’s workplace right to require its employees to work reasonable unrostered overtime, in accordance with cl 19.3 of the 2007 Agreement.
The respondents knowingly or recklessly made false or misleading representations about the obligation of the applicant’s employees to engage in industrial activity, in contravention of s 349 of the Fair Work Act.
In contravention of s 417 of the Fair Work Act the respondents organised or engaged in industrial action against the applicant before the nominal expiry date of the 2007 Agreement.
SUBMISSIONS OF THE APPLICANT
57 The applicant identified its causes of action against the respondents arising from the pleadings as follows:
1. breach of s 417 of the Fair Work Act.
2. the actions of the CFMEU, through its instruments, constituted adverse action as against the employer, being the applicant.
3. contravention of relevant industrial agreements.
58 The applicant submitted that since the respondents elected to not call any evidence:
The question for the Court is, “Would you, the Judge, on the evidence given, find for the applicant?”: Protean (Holdings) Ltd v American Home Assurance Co [1985] VR 187 at 215-216; and
The Court, given the absence of the respondents from the witness box, may more readily infer that their evidence would not have assisted aspects of their case: Jones v Dunkel (1959) 101 CLR 298 at 321-322 and 330-331.
NO CASE TO ANSWER SUBMISSIONS OF THE RESPONDENTS
59 The submissions of the respondents in this case may be summarised as follows:
The standard of proof required to demonstrate the breaches alleged by the applicant is the standard in civil proceedings reflected in Briginshaw v Briginshaw (1938) 60 CLR 336 at 362.
There is no evidence that would satisfy this standard in respect of any breach of relevant penalty provisions alleged in the applicant’s statement of claim.
The statement of claim does not identify the time at which alleged breaches occurred.
The respondents concede that the overtime policy was displayed on a notice board in the crib room of the service bay at the mine.
However the applicant also alleges that the overtime policy was issued to all new employees of the applicant who are members of the CFMEU. The only evidence for this proposition were documents distributed to new members with an undated letter from the fifth respondent. There were, however, two different documents that mention an overtime policy that are contained in the material distributed with the undated letter which do not correspond entirely with each other or the document displayed on the notice board in the crib room of the service bay.
The application fails from the outset because the statement of claim proceeds on the mistaken basis that there is one overtime policy document.
Even if there are common elements in the various documents (“a relevant document”) to which the applicant refers:
o the statement of claim alleges that a relevant document was given or made available by the CFMEU to new members with the permission or knowledge of the other respondents. There is no evidence for this allegation;
o there is no evidence that a relevant document was displayed or issued with the permission or knowledge of the second, third, fourth or fifth respondents;
o there is no evidence that a relevant document was issued to new members at some point with the knowledge or permission of the fifth respondent;
o there is no evidence that a relevant document was issued or displayed after the 2007 Agreement came into force in May 2008;
o it cannot be inferred from the display of a relevant document on a notice board in the service bay crib room that it was published to any but a small minority of members of the CFMEU. Evidence of Mr Stroppiana demonstrates that there are at least ten crib rooms and a number of union notice boards, and no relevant documents were published on them.
Paragraphs 18 and 19 of the statement of claim do not attribute liability to the CFMEU for a relevant document being given or made available on the basis of s 793 or s 550 of the Fair Work Act, or a relevant document being a direction in accordance with those provisions.
The applicant’s claim of breach of cl 19.3 of the 2007 Agreement cannot be substantiated because:
o paragraph 3 of the clause, which requires an employee to work unrostered overtime, is subject to the overall provision that it be “in accordance with prevailing arrangements” and “subject to prevailing operational requirements”. There is no evidence that the applicant has required overtime in accordance with these requirements;
o the CFMEU cannot be in breach because it is not an employee; and
o although the second to fifth respondents are employees, the applicant has not pleaded that they refused to work unrostered overtime.
The applicant’s claim of breach of cl 4.9 of the 2007 Agreement cannot be substantiated because placement in the service bay crib room or distribution to members of the overtime policy document does not constitute making a claim against the applicant.
The applicant’s claim of adverse action for the purpose of s 342 of the Fair Work Act cannot be substantiated because:
o placement in the service bay crib room or distribution to members of the overtime policy document does not constitute industrial action as defined by s 19 of the Fair Work Act;
o there is no evidence that a relevant document was a limitation or restriction on the performance of work by an employee for the purposes of s 19(1)(b) of the Fair Work Act.
The applicant has not shown that it has a relevant workplace right. Clause 19.3 of the 2007 Agreement, which provides that the applicant may require reasonable overtime to be worked by employees, is not a benefit to the applicant under that agreement – rather it is a benefit to the employees because it limits the amount of overtime an employer may ask employees to work.
In so far as the applicant suggests that cl 19.3 of the 2007 Agreement bestows a workplace right on employees, it is clear that a relevant document does not purport to make a representation about cl 19.3.
CONSIDERATION
Relevant principles in respect of “no case to answer” submission
60 In the recent decision Fair Work Ombudsman v Offshore Marine Services Pty Ltd (No 2) [2013] FCA 943 Gilmour J considered circumstances similar to those currently before me, in that a respondent union made a submission of no case to answer to claims of alleged contraventions of the Fair Work Act. Importantly, his Honour observed as follows:
120. In Australian Securities and Investments Commission v Healey (2011) 196 FCR 291 at [535], Middleton J approved the principles concerning a no case submission identified by Kaye J in Oakley v Insurance Manufacturers of Australia Pty Ltd [2008] VSC 68 at [3] as follows:
[3] In my view the authorities, to which I shall shortly refer, establish the following broad principles which should apply to the application which is before me:
1. Where a no case submission is made in a trial by jury, the role of the judge is to determine whether, on the view of the evidence most favourable to the party against whom such a submission has been made (“the respondent party”), the jury could (not would) find in favour of the respondent party.
2. The test which is applicable, where a judge is sitting without a jury, is less stringent. In such a case the judge may uphold a no case submission, notwithstanding that the evidence, on the view most favourable to the respondent party, could support a judgment in favour of the respondent party.
3. In such a case the judge may perform an assessment of the quality of the evidence which has been called on behalf of the respondent party. In some cases, such an assessment may involve the judge evaluating the credit of witnesses from whom such evidence has been called.
4. In determining a no case submission, the judge is entitled to draw inferences from the evidence.
5. On a no case submission, the judge cannot draw an inference against the party making the submission (“the moving party”) based upon the absence of evidence from that party.
6. Although the judge, sitting alone, may assess the quality of the evidence in determining a no case submission, nonetheless the test which is to be applied by the judge, at that stage, is different to the test which the judge would apply in determining the ultimate outcome of the case, at the conclusion of a trial. Notwithstanding that the judge, in determining the no case submission, may assess the quality of the evidence, nonetheless the test remains whether, on the evidence so assessed, the judge “could” (not would) find for the respondent party on the evidence so far led. In such a case, the judge would only find against the respondent party if the evidence, so far adduced, is so unsatisfactory or inherently unreliable or equivocal that he were to conclude that he could not be reasonably satisfied of the case made by the respondent party on the evidence thus far adduced.
121. Justice Middleton at [536] observed that these propositions were consistent with authority and the Full Court’s decision in Rasomen Pty Ltd v Shell Company of Australia Ltd (1997) 75 FCR 216. This observation seems to have been directed to the question confronting his Honour and which was before the Full Court in Rasomen, whether the moving party in a no case submission ought be put to its election to call no evidence.
122. Jones v Dunkel was adverted to in Rasomen at 226, but in the context of the approach of a trial judge, sitting without a jury, faced with a no case submission. The Full Court adopted what had been said by Windeyer J in Jones v Dunkel at 330-331:
When there is no jury, the proposition ‘no case to answer’ may obviously mean far more than, ‘is there evidence on which a jury could find for the plaintiff?’ It may mean, ‘would you, the judge, on the evidence given, find for the plaintiff?’
123. Nothing was said in Rasomen on the issue of whether inferences could be drawn against the moving party in a no case submission, based in Jones v Dunkel, by reason of their failure to adduce evidence.
124. In Protean (Holdings) Ltd (Receivers and Managers Appointed) v American Home Assurance Co [1985] VicRp 18; [1985] VR 187, the appellant had argued that the trial judge had wrongly upheld a no case submission in that he had made determinative findings of fact and indeed had finally decided the issues in the case. The Full Court of the Supreme Court of Victoria rejected this ground of appeal. Chief Justice Young said at 214:
The appellant carried the burden of proving those defences and ex hypothesi all the evidence that the appellant could adduce had been given.
This passage was referred to with apparent approval in Rasomen at 227.
125. Ultimately, the Full Court in Rasomen concluded at 228:
In a case like this, the function to be performed by a trial judge sitting without a jury who has decided to entertain a no case submission is no different from that which has to be performed by a judge who has heard all the evidence of the parties in the ordinary way and who has to give final judgment. In both situations, the judge must make findings of fact, after assessing the quality of the evidence.
126. This is an echo of what was said by Toohey J in James v Australia and New Zealand Banking Group Ltd (1986) 64 ALR 347 at 400:
If a defendant elects not to call evidence, the judge has before him all the evidence upon which he is called to make a decision. Any distinction between the role of the judge in ruling on a no case submission and the role of the judge as an arbiter of fact becomes largely illusory.
127. The effect of the observations in Rasomen, in my opinion, is that in a case such as this case, involving a no case submission based on the evidence, there is no two step process and no different evaluative test to be applied. I do not think the position to be any different where the moving party has elected not to call evidence. If that be correct then Jones v Dunkel inferences will, it seems, be available to the trial judge.
128. Thus, Sackville J in Prentice v Cummins (No 5) (2002) 124 FCR 67, as here, having considered relevant authority including Rasomen, said at [114]:
[114] ... As a matter of principle, it is difficult to understand why, in such a case, once the respondents have made the election not to call evidence, the material to be taken into account should not include any inferences that may be available on the principle of Jones v Dunkel (1959) 101 CLR 298, by reason of their failure to call evidence. The respondents, by their election, have chosen to adduce no evidence in support of their case. The position is different from that which obtains where the respondents have reserved the right to call evidence if the no case submission is rejected. In such circumstances, it would be inappropriate to draw adverse inferences against the respondents for not doing something they have not yet been called on to do.
His Honour had resort to the principle in Jones v Dunkel in support of inferences he drew.
129. Justice Greenwood in McIlwain v Ramsey Food Packaging Pty Ltd (2006) 154 IR 111 expressed his apparent agreement with what Sackville J said in Prentice as to the availability of Jones v Dunkel inferences on a no case submission. As it transpired in McIlwain it was unnecessary for his Honour to apply those principles by reason of a combination of other evidence and a statutory presumption operating against the respondent.
130. I too, respectfully, agree with the reasoning of Sackville J in Prentice and will apply it, to the extent necessary, in this case upon an evaluation of the whole of the evidence on the basis, as Toohey J said in James, that in substance I am in the position of an arbiter of fact on those issues at the conclusion of the trial.
61 In my respectful view, these observations of his Honour helpfully and accurately state principles applicable in this case. In particular, I adopt the views of his Honour concerning the application of the principles in Jones v Dunkel as necessary or appropriate in the circumstances.
Evidence before the Court
62 As I have already noted in this judgment, in this case the applicant relies on the evidence of seven witnesses. The only witnesses required for cross-examination were Mr Stroppiana, Mr Harris and Mr McCreadie. Cross-examination of these witnesses was relatively short.
63 Notwithstanding the brevity of the cross-examination of these witnesses I formed favourable views as to their credibility, in particularly that of Mr Stroppiana.
64 It is also clear that, in the absence of conflicting evidence relied upon by the respondents or submissions by the respondents concerning the credibility of those witnesses, it is appropriate that I accept the evidence of the applicant’s witnesses who were not the subject of cross-examination.
Standard of proof
65 The respondents submit that the appropriate standard of proof in this case is that explained in Briginshaw. Materially, at 361-362 Dixon J said:
The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality. No doubt an opinion that a state of facts exists may be held according to indefinite gradations of certainty; and this has led to attempts to define exactly the certainty required by the law for various purposes. Fortunately, however, at common law no third standard of persuasion was definitely developed. Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters “reasonable satisfaction” should not be produced by inexact proofs, indefinite testimony, or indirect inferences.
(emphasis added.)
66 This contention is not disputed by the applicant.
67 In this respect I also note s 140 of the Evidence Act 1995 (Cth) which provides:
Civil proceedings: standard of proof
(1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
(a) the nature of the cause of action or defence; and
(b) the nature of the subject-matter of the proceeding; and
(c) the gravity of the matters alleged.
68 Relevantly in Liquor Hospitality and Miscellaneous Union v Arnotts Biscuits Limited (2010) 188 FCR 221 at [15] Logan J explained:
… the Union carries the burden of proving the alleged contraventions. While the proceedings are civil in character, they are nonetheless penal. Thus, though the Union must prove the contraventions on the balance of probabilities, s 140(2) of the Evidence Act 1995 (Cth) (Evidence Act) requires that; due regard be given to the nature of the cause of action or defence; the nature of the subject matter of the proceeding; and the gravity of the matters alleged. That sub-section of the Evidence Act is a restatement of a well known passage in the judgment of Dixon J (as his Honour then was) in Briginshaw v Briginshaw (1938) 60 CLR 336 at 362 in relation to considerations which intrude in deciding whether the standard of proof in civil proceedings has been met …
69 In the case before me the claims of the applicant relate to contraventions of the Fair Work Act which lead to the imposition of civil penalties. Such proceedings are quasi-criminal in nature (cf comments of Aickin J in R v Federal Court of Australia; Ex parte Pilkington ACI (Operations) Pty Ltd (1978) 142 CLR 113 at 138, Trade Practices Commission v Abbco Ice Works Pty Limited (1994) 52 FCR 96, Mercedes Holdings Pty Limited v Waters (No 2) (2010) 186 FCR 450 at [22], Australian Competition and Consumer Commission v Australian Safeway Stores Pty Limited (No 3) [2002] FCA 1294 at [53]). In assessing the case of the applicant, in response to which the respondents have adduced no evidence, it is important to do so in light of the gravity of the matters alleged and the potential consequences facing the respondents, including individuals.
Issues for decision
70 In this light, it is now useful to turn to issues for decision in this case. I note that the applicant no longer presses a claim of contravention of s 50 of the Fair Work Act for alleged breaches of the 2007 Agreement by the respondents in furthering a settled claim in breach of cl 4.9 of the 2007 Agreement (which contains a “no extra claims” provision). In my view, relevant questions for determination are as follows:
1. Is the applicant’s case fundamentally flawed because the applicant claims there is one overtime policy document, whereas there appear to be three relevant documents?
2. Did the CFMEU, with or without the permission or knowledge of the other respondents:
(a) display the policy on a notice board in the crib room; and/or
(b) issue the policy to new members?
3. If the answers to question 2 are in the affirmative, was this conduct contrary to cl 19.3 of the 2007 Agreement and in breach of s 50 of the Fair Work Act?
4. If the answers to question 2 are in the affirmative, have the respondents applied a ban or limit on employees of the CFMEU working additional unrostered overtime as may be required by the applicant pursuant to cl 19.3 of the 2007 Agreement, in breach of s 417 of the Fair Work Act?
5. Does the applicant have a workplace right pursuant to the 2007 Agreement to require employees to work unrostered overtime under the 2007 Agreement, and if so have the respondents taken adverse action against the applicant within the meaning of s 342 of the Fair Work Act?
6. Have the respondents engaged in false and misleading representations concerning the right of the applicant to require overtime?
71 I now turn to consideration of these issues.
1. Is the applicant’s case flawed because it claims there is one overtime policy document?
72 The evidence before the Court is that the “overtime” policy appears in three separate documents. The first document was appended to a noticeboard in the crib room, and stated materially:
Overtime Policy
There is a limitation placed on the amount of overtime you can work at Peak Downs.
This helps us to get more new employees like yourself a job.
5 day roster – no more than 56 hours worked in one week.
7 day roster – one overtime shift per 16 day cycle.
There are some slight differences in some areas and if in doubt, ask your shift delegate. Each shift should have an OT roster to make sure every member has access to equal OT shifts. For more info see your delegate.
73 The second document was an undated document apparently sent by the CFMEU to new members under the hand of the fifth respondent. Materially, that document stated:
Overtime Policy
There is a limitation placed on the amount of overtime you can work at Peak Downs.
This helps us to get more new employees like you a job.
• 5 day roster – no more than 56 hours worked in one week.
• 7 day roster – one overtime shift per 16 day cycle
There are slight differences in some areas and if in doubt ask your shift delegate.
Each shift should have an OT roster to make sure every member has access to equal OT shifts. For more information see your delegate.
If you are in breech [sic], as per lodge policy, you may be made to donate extra payment to charity and you will be taken out of the OT roster for a set period.
74 The third document was an undated document apparently sent by the CFMEU to new members in the membership pack and annexed to the letter of Mr Jim Valery. Materially, that document stated:
Overtime Policy
There is a limitation placed on the amount of overtime you can work at Peak Downs. This helps us to get more new employees like yourself a job.
5 day roster – no more than 56 hours worked in one week.
7 day roster – one overtime shift per 16 day cycle.
There are some slight differences in some areas and if in doubt, ask your shift delegate. Each shift should have an OT roster to make sure every member has access to equal OT shifts. For more info see your delegate.
If you are found in breech [sic], as per lodge policy, you may be made to donate extra payment to charity and you will be taken out of the OT roster for a set period.
75 I am not persuaded by the submission of the respondents that the applicant’s statement of claim is flawed because it proceeds on the basis of one overtime policy document when there are – allegedly – clear differences between the three documents.
76 First, cl 18 of the statement of claim clearly pleads that the overtime policy promulgated by the CFMEU is in the three documents.
77 Second, the only difference of any note between the three documents is the existence in the second and third documents of the sentence, “If you are in breech [sic], as per lodge policy, you may be made to donate extra payment to charity and you will be taken out of the OT roster for a set period”. Otherwise the documents are identical.
78 Third, the respondents admit that the first document was displayed in the Service Bay crib room at the mine and that the second and third documents were included in the membership pack distributed to new members. That an extra sentence was added to the statements in the membership material does not result in either the misdescription by the applicant of any overtime policy of the respondents, or a fundamental flaw in the applicant’s case. I accept the submission of the applicant that the case should be decided upon a basis embracing the real controversy between the parties and not an artificial or narrow view of the pleadings: Banque Commerciale SA, en Liquidation v Akhil Holdings Ltd (1990) 169 CLR 279 at 296-297. Indeed, in my view, for the CFMEU to submit in the circumstances that it had no clearly identifiable overtime policy is disingenuous.
79 Accordingly, I find that the first respondent had an overtime policy which limited the hours of unrostered overtime members who were employed at the mine could work, referable to their shifts.
2. Did the CFMEU, with the permission or knowledge of the other respondents, display the policy in the crib room or issue the policy to new employees?
80 In summary, the respondents claim that:
There is no evidence that the CFMEU directly gave, made available, or issued the three documents containing the overtime policy.
There is no evidence that the document containing the overtime policy was displayed in the service bay crib room with the permission or knowledge of the second, third, fourth and fifth respondents.
There is no evidence that the document containing the overtime policy was issued to new members with the permission or knowledge of the second, third, fourth and fifth respondents.
There is no evidence that either document was issued or displayed after the 2007 Agreement came into force in May 2008.
There is no evidence that the document displayed in the service bay crib room was published to any but a small minority of members of the CFMEU. The evidence of Mr Stroppiana was that there are at least 10 crib rooms and that only 28 employees work in the service bay area. There is no evidence that the document was in any other crib room.
There is no evidence as to how many new members would have received the document containing the overtime policy during any relevant time if it was sent out during the period of the 2007 Agreement.
81 In my view the evidence before the Court supports the following findings.
Issue and display of policy
82 First, I am satisfied that the CFMEU issued all three documents containing the overtime policy. That this is so is clear from:
The admission of the respondents in paragraphs 3, 4 and 5 of their defence in respect of the document displayed on the notice board in the service bay crib room.
The response to the request for further and better particulars provided by the respondents in respect of the statement in paragraph 4 of the defence that “the words in the document reflect the view of the members of the First Respondent … as to the appropriate level of overtime that should be worked in the workplace”, in particular the explanation provided by the respondents that:
… There was a National Convention Resolution in relation to Overtime adopted by delegates attending the CFMEU Mining and Energy Division’s National Convention held in Queensland from 26 to 30 May 1997.
On 4 November 1997, there was a resolution carried at the Queensland District Board of management meeting that the 13 hours per week overtime limit remain as a general policy. In or around 1998 there was a monthly meeting of the Peak Downs Lodge in relation to the Queensland District Overtime Policy. The Peak Downs Lodge endorsed the District Policy of an overtime limit of 13 hours each week. That resolution adopted the position that at Peak Downs Mine the policy amounted to overtime being limited to one shift of overtime in 16 shifts.
The absence of any evidence to support a finding that the approach adopted by the CFMEU in 1998 was ever revoked, in particular:
o minutes of the meetings of the Peak Downs Lodge of 8 February 2011 and 12 February 2011 which refer to the Lodge policy of one overtime shift per 16 shifts;
o minutes of the committee meeting of the Peak Downs Lodge of 27 April 2010 which refer to the requirement for monitoring overtime by union members;
o the evidence of Mr Stroppiana that the document containing the policy was on the notice board in the service bay crib room in or around March 2011.
The evidence provided by the first respondent to Ms Mason on or about 19 July 2011 containing the pack of documents sent to new members, which included two documents containing the overtime policy.
Circulation
83 Second, I am not satisfied that the overtime policy had limited circulation among employees at the mine.
84 I have already noted the evidence of Mr Robert McCreadie, a superintendent at the mine from December 2004 until the proceedings were commenced, that on many occasions he had been informed by workers that they had “already done one shift of overtime and couldn’t do another as it was against union policy”.
85 Further, it is clear that the overtime policy was of long standing at the mine. As I have further noted, Mr Michael Schafferius, an area delegate at the mine from approximately 1998 to 2006, gave evidence that during this time there was a CFMEU policy which limited the amount of overtime that people could work, and that the policy was frequently discussed at union committee meetings at the mine (affidavit of Michael Schafferius affirmed 1 December 2011).
86 I have already noted the evidence before the Court that the overtime policy was discussed in Lodge meetings at the mine after the 2007 Agreement came into operation, and to that extent consider it proper to infer that it was brought to the attention of employees of the mine who were CFMEU members in attendance.
87 I am also satisfied that the policy was promulgated to all new members of the CFMEU employed at the mine over an indeterminate period of time. I do not accept the submission of the respondents that there was no evidence before the Court that the overtime policy was made available to new members. In my view such a submission is precious in light of documentation discovered by the first respondent, in particular the information pack for new members.
CFMEU policy
88 Third, I am satisfied that the overtime policy at the mine was not adopted by the Peak Downs Lodge on a frolic of its own, but rather was authorised by the CFMEU through the Peak Downs Lodge.
89 In their defence, the respondents admitted the claim of the applicant that the CFMEU conducts its business through, inter alia, Lodges established at each mine including the Peak Downs mine. This is a proper admission in light of such authorities as Re McJannet; Ex parte Minister for Employment, Training and Industrial Relations (Qld) (1995) 184 CLR 620, in particular at 640 where the plurality observed:
A branch of a federal industrial organisation is not a person; it has no existence apart from that of the members of the branch. The word “branch” in that context is no more than a collective noun which, although singular in form, is used with a plural implication. That was made clear in Williams v Hursey by Fullagar J, with whom Dixon CJ and Kitto J agreed, when he pointed out that a branch of a federally registered organisation has no corporate character and no separate existence as a juristic person. He said of the Hobart branch of the Waterside Workers' Federation of Australia that it:
is not an ‘unincorporated society, fellowship, club or association’. It has no separate identity - no existence apart from the registered organisation, of which it is an integral and inseverable part. Its members are merely a section of the total membership of the federation - locally organised for the sake of convenience, but in no respect independent of the federation, and in all respects subject to the control of the federation.
(footnotes omitted.)
90 In the absence of evidence tendered by the respondents from which the inference could be drawn that the policy was an unauthorised initiative of the Peak Downs Lodge, or that the Peak Downs Lodge was an entity separate from the CFMEU, the proper inference to draw is that the Lodge was acting as an organ of the CFMEU in respect of the overtime policy and that this policy was the CFMEU’s policy.
Conclusion
91 Accordingly, it follows that the answers to questions 2(a) and (b) are “yes”.
3. Was this conduct contrary to clause 19.3 of the 2007 Agreement and in breach of section 50 of the Fair Work Act?
92 Section 50 of the Fair Work Act provides as follows:
50 Contravening an enterprise agreement
A person must not contravene a term of an enterprise agreement.
Note 1: This section is a civil remedy provision (see Part 4 1).
Note 2: A person does not contravene a term of an enterprise agreement unless the agreement applies to the person: see subsection 51(1).
93 It is not in dispute that the 2007 Agreement is an enterprise agreement within the meaning of s 50.
94 Clause 19.3 of the 2007 Agreement provides that the applicant may require employees to work additional unrostered overtime “subject to prevailing operational requirements”. The respondents submit in summary that:
Clause 19.3 does not apply to the CFMEU, only employees.
There is no evidence that the second to fifth respondents, who were employees at material times, refused to work unrostered overtime.
There is no evidence that any employees refused to work unrostered overtime in accordance with prevailing operational requirements.
None of the respondents have contravened s 50 of the Fair Work Act.
95 The case of the applicant is essentially that the union overtime policy is an action by the CFMEU which infringes the applicant’s right to require its employees to work overtime. In support of this proposition the applicant relies on the decision of the Full Court of this Court in Tran v Commonwealth (2010) 187 FCR 54.
96 In Tran the Full Court considered the operation of s 42 of the Migration Act 1958 (Cth) (“Migration Act”), which at the relevant time provided that a non-citizen must not travel to Australia without a valid visa. In particular, the question arose whether the entry into Australia of a non-citizen without a valid visa involved a contravention of s 42(1) of the Migration Act, or of provisions of the Migration Act more broadly. In particular, s 261A of the Migration Act provided that any vessel used or involved in a contravention of that Act would be forfeited. On the facts of that case, the Full Court held that “contravention” within the meaning of s 261A meant a contravention giving rise to a criminal offence. Relevantly for the purposes of this case, Besanko J observed:
177. The first question is whether, as the primary judge held, a breach of s 42(1) is a contravention of the Migration Act within s 261A. The meaning of the word, contravention, will be relevant to this question and also to the respondent’s notice of contention in relation to ss 229(1), 232, 232A and 233(1).
178. The meaning of the word contravention is a question of statutory construction to be determined by the application of common law principles and the provisions of the AIA. At common law, context must be considered at the outset and not simply after an ambiguity has been identified. Context includes the existing state of the law and the mischief the law is designed to remedy. Those matters may be identified by reference to such extrinsic material as is relevant. … There are limits to the use of extrinsic material, but they need not be examined here …
179. ….
180. The question of construction in this case is not an easy one. The Migration Act itself contains matters which support the appellant’s suggested construction and others which support the respondent’s suggested construction. The extrinsic material supports, for the most part, the appellant’s suggested construction. The principles of construction in cases of ambiguity also support the appellant’s suggested construction. I have reached the conclusion that contravention in s 261A(1) does not include a breach of s 42(1).
181. The primary judge placed considerable weight on the fact that the words in s 261A were not simply a contravention, but were, a contravention of this Act. As I understand the primary judge’s reasons, this meant that the section embraced all relevant provisions of the Act and not just the offence provisions. With respect, I do not think that this difference is of any great significance. It does not seem to me to point to the conclusion that a contravention includes only criminal offences, whereas a contravention of this Act includes criminal offences and breaches of statutory rules of conduct or norms. It follows, it seems to me, that the proper inquiry is as to the meaning of the word contravention.
182. As an ordinary English word, contravention is capable of a wide meaning and one which includes breaches of statutory rules of conduct or norms as well as offences. A dictionary definition of the verb “contravene” is as follows:
1. v.t 1. go counter to; infringe (a law, rule, etc);
The New Shorter Oxford English Dictionary on Historical Principles (Clarendon Press, Oxford, 3rd ed, 1993).
183. Furthermore, s 22(1)(j) of the AIA provides that, unless the contrary intention appears, “contravene includes failure to comply with”.
184. There are many examples in Commonwealth legislation of the words “contravene” or “contravention” being used to describe breaches of sections which do not constitute criminal offences, although usually some form of civil penalty or relief attends the breach (see, for example, Trade Practices Act 1974 (Cth) ss 52, 80, 82 and 87; Corporations Act 2001 (Cth) Part 9.4B).
185. There are authorities too which make it clear that, depending on the statutory context, contravention may have a wider meaning than offence ...
97 It is very clear that the legislative provision – and legislative context – in Tran were very different to those before me. I consider that the assistance provided by Tran in considering the meaning of contravention of a term of an enterprise agreement for present purposes is limited to noting that:
the meaning of “contravention” in any particular case will depend on the context used;
extrinsic evidence may be relevant in interpreting the word in any particular case; and
contravention is capable of a wide meaning.
98 Taking these points into account, I note as a point of statutory construction that s 51(1) of the Fair Work Act (which is also in Subdiv D of Pt 2-1 Div 2 of the Fair Work Act) links the imposition of an obligation on a person to a contravention of a term of an enterprise agreement by that person.
99 I am not persuaded that cl 19.3 imposes an obligation on the CFMEU, which the CFMEU could either satisfy or contravene, and hence either satisfy or contravene the 2007 Agreement. At its highest, the CFMEU overtime policy could result in employees of the applicant declining to work overtime which would otherwise be contemplated by cl 19.3 of the 2007 Agreement. Even assuming that cl 19.3 creates a right in the applicant, on a plain reading of the language of cl 19.3 I am not persuaded that the union “contravened” the enterprise agreement by adopting an overtime policy which may impact on that right. To that extent, notwithstanding that I am satisfied that the overtime policy was issued by the CFMEU and members of the union were expected to adhere to it, I consider that the CFMEU has not contravened cl 19.3 of the 2007 Agreement.
100 Similarly, I accept the respondents’ submission that there is no evidence that the second, third, fourth or fifth respondents – who are employees of the applicant – have refused to work unrostered overtime, and contravened cl 19.3 of the 2007 Agreement.
101 It follows that this aspect of the applicant’s claim has not been substantiated.
4. Have the respondents applied a ban or limit on employees of the CFMEU working additional unrostered overtime as may be required by the applicant pursuant to clause 19.3 of the 2007 Agreement, in breach of section 417 of the Fair Work Act?
102 At material times s 417 of the Fair Work Act provided as follows:
417 Industrial action must not be organised or engaged in before nominal expiry date of enterprise agreement etc.
No industrial action
(1) A person referred to in subsection (2) must not organise or engage in industrial action from the day on which:
a. an enterprise agreement is approved by FWA until its nominal expiry date has passed; or
b. a workplace determination comes into operation until its nominal expiry date has passed;
whether or not the industrial action relates to a matter dealt with in the agreement or determination.
Note: This subsection is a civil remedy provision (see Part 4-1).
(2) The persons are:
a. an employer, employee, or employee organisation, who is covered by the agreement or determination; or
b. an officer of an employee organisation that is covered by the agreement or determination, acting in that capacity.
Injunctions and other orders
(3) If a person contravenes subsection (1), the Federal Court or Federal Magistrates Court may do either or both of the following:
a. grant an injunction under this subsection;
b. make any other order under subsection 545(1);
that the court considers necessary to stop, or remedy the effects of, the contravention.
(4) The court may grant an injunction under subsection (3) only on application by a person referred to in column 2 of item 14 of the table in subsection 539(2).
(5) Despite subsection 545(4), the court may make any other order under subsection 545(1) only on application by a person referred to in column 2 of item 14 of the table in subsection 539(2).
Note: Section 539 deals with applications for orders in relation to contraventions of civil remedy provisions.
103 “Industrial action” is relevantly defined in the Fair Work Act as follows:
19 Meaning of industrial action
(1) Industrial action means action of any of the following kinds:
a. the performance of work by an employee in a manner different from that in which it is customarily performed, or the adoption of a practice in relation to work by an employee, the result of which is a restriction or limitation on, or a delay in, the performance of the work;
b. a ban, limitation or restriction on the performance of work by an employee or on the acceptance of or offering for work by an employee;
c. a failure or refusal by employees to attend for work or a failure or refusal to perform any work at all by employees who attend for work;
d. the lockout of employees from their employment by the employer of the employees.
Note: In Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v The Age Company Limited, PR946290, the Full Bench of the Australian Industrial Relations Commission considered the nature of industrial action and noted that action will not be industrial in character if it stands completely outside the area of disputation and bargaining.
(2) However, industrial action does not include the following:
a. action by employees that is authorised or agreed to by the employer of the employees;
b. action by an employer that is authorised or agreed to by, or on behalf of, employees of the employer;
c. action by an employee if:
i. the action was based on a reasonable concern of the employee about an imminent risk to his or her health or safety; and
ii. the employee did not unreasonably fail to comply with a direction of his or her employer to perform other available work, whether at the same or another workplace, that was safe and appropriate for the employee to perform.
CFMEU
104 I am satisfied that the conduct of the first respondent constituted “industrial action” within the meaning of s 19 and s 417 of the Fair Work Act. The first respondent has organised industrial action in that it has imposed an overtime ban, limitation or restriction (as defined by s 19(1)(b) of the Fair Work Act) and encouraged CFMEU members to apply the ban, limitation or restriction (Australian Paper Limited v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (1998) 81 IR 15 at 22).
105 That this is so is clear from the hortatory statements in the overtime policy. The overtime policy is phrased in terms of absolute compliance by employees of the mine who are members of the CFMEU. In particular, the policy includes statements such as:
“there is a limitation placed on the amount of overtime you can work at Peak Downs”; and
“if in doubt, ask your shift delegate”.
106 More punitively, the versions of the policy in the membership pack include the following statement:
If you are found in breech [sic], as per lodge policy, you may be made to donate extra payment to charity and you will be taken out of the OT roster for a set period.
107 In forming this view I note in particular the following comments of French J (as his Honour then was) in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Laing (1998) 89 FCR 17 at 30-31:
While par (a) of the definition relates to the “performance of work”, par (b) is more broadly expressed. It refers to “a ban, limitation or restriction on the performance of work, or on the acceptance of or offering for work”. The central meaning of the term “ban” in the industrial, as in its ordinary usage, is to “prohibit or interdict”: the Macquarie Dictionary. Communication between persons or an organisation and persons is essential to a “ban”. And while the notion of “limitation” or “restriction” may have a meaning related to manner of actual performance of work, that meaning is picked up in par (a) of the definition. Under par (b) it extends to the communication of a limitation or restriction. Communication picked up under pars (b) and (c) must no doubt purport to be at least hortatory, if not authoritative and binding, upon the person to whom they are directed.
(cf Qantas Airways Ltd v Transport Workers’ Union of Australia [2011] FCA 470 at [317], Australian Industry Group v Automotive, Food, Metals, Engineering, Printing & Kindred Industries Union [2000] FCA 629 at [61], Leighton Contractors Pty Ltd v Construction, Forestry, Mining and Energy Union (2006) 164 IR 375.)
108 In this case I am satisfied that the language used in the overtime policy is hortatory, and intended to be authoritative of and obeyed by union members.
109 I am not persuaded by the submission of the respondents that there is no evidence that the overtime policy limited or restricted the performance of work by employees at the mine. While the applicant does not have an unfettered right to require employees to work unrostered overtime pursuant to cl 19.3 of the 2007 Agreement, in my view the evidence before the Court clearly supports a finding that employees who were willing to work reasonable unrostered overtime were limited by the overtime policy promulgated by the first respondent, and declined the opportunity to do so where the CFMEU overtime policy was in danger of breach.
Second, third, fourth and fifth respondents
110 However while I make this finding in respect of the first respondent, I do not consider the position to be so clear in relation to the remaining respondents.
111 In relation to s 417 of the Fair Work Act and the individual respondents the applicant relies on s 550 of the Fair Work Act which at relevant times provided:
550 Involvement in contravention treated in same way as actual contravention
(1) A person who is involved in a contravention of a civil remedy provision is treated as having contravened that provision.
(2) For this purpose, a person is involved in a contravention of a civil remedy provision if, and only if, the person:
a. has aided, abetted, counselled or procured the contravention; or
b. has induced the contravention, whether by threats or promises or otherwise; or
c. has been in any way, by act or omission, directly or indirectly, knowingly concerned in or party to the contravention; or
d. has conspired with others to effect the contravention.
112 More particularly, the case of the applicant in respect of the second to fifth respondents can be summarised as follows:
Each of the respondents is liable for the first respondent’s contravention of s 417 of the Fair Work Act by virtue of their involvement in that contravention pursuant to s 550(1) of the Fair Work Act.
Each of these respondents is a senior office holder of the CFMEU in the Peak Downs Lodge at the mine.
Each respondent admits that the overtime policy was on the notice board at all material times.
Each respondent knew that the Peak Downs Lodge endorsed an overtime limit of one shift of overtime in 16 shifts because he was present at the lodge meetings where the policy was endorsed.
Each respondent was part of a lodge executive and present at meetings when the overtime policy or restrictions on overtime were discussed.
Each respondent has authority under r 12 of the CFMEU’s rules.
Each respondent knew that the notice in the service bay crib room reflected the Lodge’s overtime policy, and that the notice was communicated to employees.
It may be inferred that each respondent knew that the overtime policy was being sent to new employees. This is particularly the case in relation to the fifth respondent, who was the author of the letter to new employees which enclosed the membership pack containing a copy of the overtime policy.
113 In my view, at its highest, the evidence simply supports a finding that the second, third and fourth respondents knew of the contravention by the first respondent. There is no evidence that any of these particular respondents acted in such a manner as to fall within any of the paragraphs of s 550(2) of the Fair Work Act. So, for example, there is no direct evidence before the Court that any of these respondents attended meetings at which the overtime policy was discussed (cf Australian Building and Construction Commissioner v Abbott (2011) 207 IR 11). (For example, Mr Low was an apology in respect of the Lodge meetings of 8 February 2011 and 12 February 2011. Mr Adams and Mr Low were apologies for the meeting of 12 February 2011, however the absence of a recorded apology for these particular respondents in respect of the meeting of 8 February 2011 does not mean – in the absence of further evidence – that they were present.) There is no evidence of the positions held by any of these respondents at the time of the original adoption of the overtime policy by the Lodge in 1998. Further, there is no evidence that these particular respondents intentionally participated in activities relating to the issue or display of the policy.
114 At material times the second to fourth respondents were senior officials with the CFMEU at the mine. However while the rule in Jones v Dunkel permits inferences of knowledge to be drawn from circumstantial evidence when the facts are particularly within the knowledge of a party who is not called to give evidence, there is no evidence that the issues concerning the policy were particularly within the knowledge of these particular respondents or that, for example, they engaged in other acts which would support a finding of involvement or knowledge (cf Trade Practices Commission v David Jones (Australia) Pty Ltd (1986) 13 FCR 446). The rule cannot be employed to fill gaps in the evidence, or to convert suspicion into inference (Jones v Dunkel per Menzies J at 313, Kitto J at 308).
115 In relation to the fifth respondent, however, these considerations do not apply. The evidence before the Court is that the fifth respondent signed the letter annexing material including the overtime policy, which was sent to all new members of the union employed at the mine. In my view, such an overt action constitutes, at the very least, endorsement, knowledge and participation in acts relating to the issue of the overtime policy, and supports a finding of being knowingly concerned in or party to the first respondent’s contravention of s 417, within the meaning of s 550(2)(c) of the Fair Work Act.
5. Does the applicant have a workplace right pursuant to the 2007 Agreement to require employees to work unrostered overtime under the 2007 Agreement, and if so have the respondents taken adverse action against the applicant within the meaning of section 342 of the Fair Work Act?
116 Section 340 of the Fair Work Act stated at material times:
340 Protection
(1) A person must not take adverse action against another person:
a. because the other person:
i. has a workplace right; or
ii. has, or has not, exercised a workplace right; or
iii. proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right; or
b. to prevent the exercise of a workplace right by the other person.
Note: This subsection is a civil remedy provision (see Part 4-1).
(2) A person must not take adverse action against another person (the second person) because a third person has exercised, or proposes or has at any time proposed to exercise, a workplace right for the second person’s benefit, or for the benefit of a class of persons to which the second person belongs.
Note: This subsection is a civil remedy provision (see Part 4-1).
117 Section 341 of the Fair Work Act defines a workplace right as follows:
341 Meaning of workplace right
(1) A person has a workplace right if the person:
a. is entitled to the benefit of, or has a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body; or
b. is able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument; or
c. is able to make a complaint or inquiry:
i. to a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrument; or
ii. if the person is an employee – in relation to his or her employment.
118 The Fair Work Act defines adverse action as, relevantly:
342 Meaning of adverse action
(1) The following table sets out circumstances in which a person takes adverse action against another person.
| Meaning of adverse action | ||
| Item | Column 1 Adverse action is taken by ... | Column 2 if ... |
| 1 … | … … | |
| 7 | an industrial association, or an officer or member of an industrial association, against a person | the industrial association, or the officer or member of the industrial association: (a) organises or takes industrial action against the person; or (b) takes action that has the effect, directly or indirectly, of prejudicing the person in the person’s employment or prospective employment; or (c) if the person is an independent contractor—takes action that has the effect, directly or indirectly, of prejudicing the independent contractor in relation to a contract for services; or (d) if the person is a member of the association—imposes a penalty, forfeiture or disability of any kind on the member (other than in relation to money legally owed to the association by the member). |
(2) Adverse action includes:
a. threatening to take action covered by the table in subsection (1); and
b. organising such action.
(3) Adverse action does not include action that is authorised by or under:
a. this Act or any other law of the Commonwealth; or
b. a law of a State or Territory prescribed by the regulations.
(4) Without limiting subsection (3), adverse action does not include an employer standing down an employee who is:
a. engaged in protected industrial action; and
b. employed under a contract of employment that provides for the employer to stand down the employee in such circumstances.
119 Relevant presumptions in the Fair Work Act include:
360 Multiple reasons for action
For the purposes of this Part, a person takes action for a particular reason if the reasons for the action include that reason.
361 Reason for action to be presumed unless proved otherwise
(1) If:
a. in an application in relation to a contravention of this Part, it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and
b. taking that action for that reason or with that intent would constitute a contravention of this Part;
it is presumed, in proceedings arising from the application, that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise.
(2) Subsection (1) does not apply in relation to orders for an interim injunction.
120 In substance, the applicant claims that it was entitled to the benefit of the 2007 Agreement, including cl 19.3. The respondents claim that cl 19.3 was for the benefit of the employees because it limits the amount of overtime that an employer may ask employees to work, and in any event there is no causal connection between the overtime policy and the 2007 Agreement because the overtime policy was brought into existence before the 2007 Agreement.
CFMEU
121 In my view the applicant has substantiated its case that a workplace right does subsist in the applicant pursuant to cl 19.3 of the 2007 Agreement, and that adverse action has been taken by the first respondent in contravention of s 340 of the Fair Work Act for proscribed reasons.
122 First, an entitlement of an employer to require work to be done is clearly a workplace right vesting in that employer: Laing O'Rourke Australia Pty Ltd v Construction, Forestry, Mining and Energy Union [2013] FCA 133. I accept the submission of the applicant that the terms of cl 19.3 plainly entitle the employer to require employees to work unrostered overtime in prescribed circumstances. This confers a right, of clear benefit, on the applicant within the meaning of s 341(1)(a) of the Fair Work Act.
123 Second, that this workplace right of the applicant is limited by the terms of cl 19.3 does not preclude the entitlement conferred by cl 19.3 from being a workplace right.
124 Third, the respondents claim that cl 19.3 confers rights on the employees. That a workplace agreement gives rights to both employer and employees is scarcely a novel concept (cf for example comments of Lee J in Nettlefold v Kym Smoker Pty Ltd (1996) 69 IR 370). In my view that cl 19.3 may also confer rights on employees does not detract from the workplace right conferred on the applicant by cl 19.3.
125 Fourth, for reasons I have already explained I am satisfied that in respect of the overtime policy the first respondent has organised or taken industrial action against the applicant within the meaning of s 342(1) Item 7 Column 2. This is clearly adverse action as defined by s 342(1) and s 342(2).
126 Fifth, as French CJ and Crennan J explained in Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 86 ALJR 1044; [2012] HCA 32 the question of why the decision-maker (in this case the CFMEU) has acted is one of fact. As their Honours observed at [45]:
… direct testimony from the decision-maker which is accepted as reliable is capable of discharging the burden upon [the decision-maker] ...
(cf Gummow and Hayne JJ at [129], Heydon J at [146].)
127 In this case no evidence was given by the respondents as to the reason(s) for the development or promulgation of the overtime policy. The evidence before the Court demonstrates that the terms of cl 19.3 and the right of the applicant to require unrostered overtime as contemplated by that clause were the subject of negotiations between the applicant and the first respondent in the period prior to the settlement of the 2007 Agreement, and that no objections were raised by the first respondent to the provisions of cl 19.3. Even if – as the first respondent submits – the overtime policy was developed prior to the 2007 Agreement, the first respondent clearly maintained the policy in the face of that Agreement. The effect of the policy is to plainly limit employees working unrostered overtime, even if that overtime were reasonable and required to meet operational requirements, and to deprive the applicant of its entitlement to have employees work unrostered overtime unless the overtime was worked in circumstances contemplated by the overtime policy.
128 In my view the first respondent has not discharged the onus of proving that the reason for the adverse action it has taken was not for a reason proscribed by the Fair Work Act.
Second to fifth respondents
129 Section 342(1) of the Fair Work Act contemplates primary liability being assumed by an officer of an industrial association where adverse action is taken by that officer against a person. In this case in paragraph 23 of the statement of claim the applicant has pleaded that “the respondents” collectively have taken adverse action against the applicant by, inter alia, threatening to take or organise industrial action against the applicant in respect of an overtime ban, or taking or organising such industrial action. The applicant does not plead accessorial liability on the part of the individual respondents in relation to contravention of s 340 of the Fair Work Act by the first respondent.
130 In my view the evidence does not support a finding that the second, third and fourth respondents organised or took industrial action against the applicant.
131 In relation to the fifth respondent, the evidence demonstrates that the fifth respondent by letter forwarded the overtime policy to new members. I am not satisfied that this constituted “taking adverse action” against the applicant. Section 342(1) refers to an officer of an industrial association “organising or taking industrial action” against a person in the position of the applicant. The word “organise” is defined by the Macquarie Dictionary as including:
to form as or into a whole consisting of interdependent or coordinated parts, especially for harmonious or united action; to systematise.
132 While the letter the fifth respondent signed clearly promoted the CFMEU overtime policy to new members, I do not consider that, in signing that letter, the fifth respondent could be said to have personally “organised” industrial action.
133 Nor do I consider that this action constituted “taking” industrial action by the fifth respondent. Certainly there is no evidence that the fifth respondent himself banned or limited the performance of work by himself or others. In my view promoting or promulgating the overtime policy is not “taking” industrial action within the meaning of s 19 of the Fair Work Act, or taking adverse action within the meaning of s 342(1) of the Fair Work Act.
134 In making these observations, I draw a sharp distinction between the accessorial liability of the fifth respondent in relation to the first respondent’s contravention of s 417, and the failure of the applicant to establish its case against the fifth respondent for primary liability under s 340 of the Fair Work Act.
6. Have the respondents engaged in false and misleading representations concerning the right of the applicant to require overtime?
135 In respect of this aspect of the claim the respondents rely on s 345 and s 349 of the Fair Work Act.
136 Section 345 states:
345 Misrepresentations
(1) A person must not knowingly or recklessly make a false or misleading representation about:
(a) the workplace rights of another person; or
(b) the exercise, or the effect of the exercise, of a workplace right by another person.
Note: This subsection is a civil remedy provision (see Part 4-1).
(2) Subsection (1) does not apply if the person to whom the representation is made would not be expected to rely on it.
137 Further s 349 states:
349 Misrepresentations
(1) A person must not knowingly or recklessly make a false or misleading representation about either of the following:
(a) another person’s obligation to engage in industrial activity;
(b) another person’s obligation to disclose whether he or she, or a third person:
(i) is or is not, or was or was not, an officer or member of an industrial association; or
(ii) is or is not engaging, or has or has not engaged, in industrial activity.
Note: This subsection is a civil remedy provision (see Part 4-1).
(2) Subsection (1) does not apply if the person to whom the representation is made would not be expected to rely on it.
138 The applicant submits, in summary, that by promulgating the overtime policy, the respondents have represented that there are limitations on the applicant’s workplace right under the 2007 Agreement to require employees at the mine to work unrostered overtime, that the workplace right of employees to work overtime is limited by the overtime policy, and that the applicant’s employees at the mine were and are obliged to take industrial action in the form prescribed by the overtime policy. Further, the applicant submits that those representations were false and misleading in that they were wrong.
139 In this case I am satisfied that the overtime policy does include false and misleading representations by the first respondent in terms of s 345 of the Fair Work Act, concerning the right of the applicant to require overtime to be worked by its employees. This is because:
It appears that a “person” for the purposes of s 345 can include an industrial association like the first respondent. This is not particularly clear from the terms of s 345 itself, however:
o I note that industrial associations are contemplated as “persons” by s 340 and s 342, which like s 345 are in Pt 3.1 Div 3 of the Fair Work Act;
o as a general proposition a misrepresentation can be made by a body corporate as well as an individual;
o no issue was taken as a matter of principle to the capacity of the first respondent to make false and misleading representations by the respondents in these proceedings.
The overtime policy states that there are limitations on the amount of overtime an employee at the mine can work, referable to the nature of the roster of the individual employee. This is plainly incorrect. The limitation prescribed by the overtime policy is a limitation apparently invented by the first respondent outside the parameters of its negotiations with the applicant.
The respondents submit that the overtime policy does not purport to make a representation about the terms of cl 19.3 of the 2007 Agreement. While this may be the case, the overtime policy is clearly inconsistent with the entitlement of the applicant to require reasonable overtime subject to prevailing operational requirements pursuant to cl 19.3 of the 2007 Agreement.
I agree with the submission of the applicant that the misleading representations in the overtime policy concerning limitations on the amount of overtime an employee can work were made knowingly and/or recklessly by the first respondent, in that:
o the first respondent was a party to the 2007 Agreement containing cl 19.3; and
o there is ample evidence before the Court in relation to the negotiations between the applicant and the CFMEU in respect of cl 19.3. In this respect there is, in my view, no room for an interpretation of cl 19.3 which encompasses the limitation on unrostered overtime imposed by the overtime policy.
I do not accept the submission of the respondents that there is no evidence that any of the respondents authored the documents containing the overtime policy.
140 In relation to s 349, I note that the concept of engaging in industrial activity is defined by s 347. The matters in s 347 are clearly referable to conduct of individuals, and include persons taking part in industrial action (s 347(f)). As I have already noted, s 19(b) of the Fair Work Act defines “industrial action” as including limitations or restrictions on the performance of work by an employee or on the acceptance of or offering for work by an employee. The overtime policy clearly makes a false or misleading representation about the obligation of employees of the applicant who are members of the CFMEU to refuse overtime required by the applicant where the employee is in breach of the overtime policy. As I have already observed, it is clear that such false or misleading statements were made knowingly or recklessly by the first respondent. To that extent, I consider that the overtime policy includes false or misleading statements in breach of s 349.
141 However for reasons I have already given, I am not satisfied that the second, third and fourth respondents contravened s 345 and s 349 of the Fair Work Act in the same manner as the first respondent. There is no evidence that any of those respondents authored documents containing the overtime policy, or were party to promulgating the false and misleading statement.
142 In relation to the fifth respondent the overtime policy was in the information pack which the fifth respondent sent to all new members of the CFMEU at the mine. There is authority that, in promulgating a false and misleading statement, a person in turn makes that false and misleading statement: Universal Telecasters Qld Ltd v Guthrie (1978) 18 ALR 531 at 547. In this respect, I find that the fifth respondent has made false and misleading statements in contravention of s 345 and s 349 of the Fair Work Act.
CONCLUSION
143 I am satisfied on the evidence before the Court that the first respondent and the fifth respondent have contravened ss 345, 349 and 417 of the Fair Work Act in respect of the overtime policy. I am also satisfied that the first respondent contravened s 340 of the Fair Work Act. However, I am not persuaded that the second, third and fourth respondents have similarly contravened the Fair Work Act.
144 To that extent, the no case to answer submission of the respondents has been, in part, successful.
145 I will make declarations in accordance with these findings, and timetabling orders relevant to hearing appropriate penalties.
| I certify that the preceding one hundred and forty-five (145) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier. |
Associate:
