Federal Court of Australia

Australian Federation of Air Pilots v Regional Express Holdings Limited [2021] FCAFC 226

ORDERS

THE COURT ORDERS THAT:

1.    The respondent’s interlocutory application filed 17 November 2020 be dismissed.

2.    The appeal be allowed in part.

3.    The orders of the Federal Circuit Court of Australia made 6 February 2020 be set aside and in lieu it be ordered that the applicant’s claim that the respondent contravened s 345 of the Fair Work Act 2009 (Cth) be dismissed.

4.    Otherwise, the application is remitted to the Federal Circuit and Family Court of Australia (Division 2) for rehearing in accordance with these reasons of the appellant’s claims that the respondent contravened s 340 and s 343 of the Fair Work Act.

5.    There be no order as to costs.

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

REASONS FOR JUDGMENT

THE COURT:

Introduction

1    The appellant, the Australian Federation of Air Pilots (the Federation), appeals the order of a judge of the Federal Circuit Court of Australia (as it was then known) which dismissed its application for declarations, pecuniary penalties, and injunctive relief based upon allegations of contraventions by the respondent of ss 340, 343, and 345 of the Fair Work Act 2009 (Cth) (FW Act). The respondent, Regional Express Holdings Ltd (REX), has filed a notice of contention and, in addition, has applied to this Court for a declaration under the Fair Work (Registered Organisations) Act 2009 (Cth) (RO Act), s 321(1), to which we will refer later in these reasons.

Background

2    The Federation is an association of employees registered under the RO Act, and is entitled to represent the industrial interests of persons who are eligible for membership of the association in accordance with its eligibility rules. Because it is an association of employees registered under the RO Act, it is also an industrial association for the purposes of the FW Act.

3    REX employed pilots in the conduct of its commercial aviation business. As a means of recruiting pilots, REX sponsored cadet pilots to undertake a training program known as the REX Pilot Training Program conducted by the Australian Airline Pilots Academy (Academy). The Academy was operated by a company associated with REX and was based at Wagga Wagga, New South Wales. Its facilities included a flight simulator, accommodation for the cadets, and dining and recreation facilities. While undertaking the course the cadets resided at the Academy. The cadets undertook a 34 week intensive training program, which if successfully completed, resulted in the cadet obtaining an Australian commercial pilot’s licence with multi-engine instrument rating. The Academy had regular intakes of cadet pilots who were chosen by REX to undertake training with a view to then employing the pilots upon successful completion of the course. The flight simulator at the Academy was also used by REX’s employed pilots in the course of undertaking ongoing training and assessment.

4    The form of REX’s sponsorship of the cadets was two loans to cover most of the cost of the course. If a cadet was subsequently employed by REX or one of its subsidiaries, one of the loans was repayable by regular instalments over the course of the subsequent employment. If a pilot who graduated from the course subsequently completed seven years of service with REX, the other loan was forgiven. The cadets entered into formal loan agreements to give effect to these arrangements. After commencing employment with REX, the pilots had further opportunities to achieve qualifications, including: (1) entry into the “Pilots in Command Under Supervision”, or “PICUS”, program; (2) potential entry into a “Command upgrade” course; and (3) potential appointment to the role of Captain. Higher qualifications were associated with opportunities for higher remuneration.

The enterprise agreement

5    The Regional Express Pilots’ Enterprise Agreement 2011 (2011 Agreement) was made and approved under Pt 2-4 of the FW Act and commenced operation on 27 September 2012. The 2011 Agreement succeeded an earlier agreement, being the Regional Express Pilots Certified Agreement 2005 (2005 Agreement), which was certified under s 170LT of the Workplace Relations Act 1996 (Cth), as then in force.

6    The 2011 Agreement was expressed to be binding on the Federation (after it gave notice in accordance with s 183 of the FW Act), REX, and all pilots employed by REX, whether they were members of the Federation or not. The 2011 Agreement had a nominal expiry date of 30 June 2014, and continued to operate until 18 August 2016.

7    Clause 58 of the 2011 Agreement contained provisions relating to the accommodation of pilots while absent on layovers from their base. The 2005 Agreement contained relevantly similar terms. A layover was defined in the 2011 Agreement as –

any occasion a Pilot is away from his or her Home Base or base of temporary transfer between sign-off time and sign-on time for a continuous period exceeding nine hours.

8    A layover might typically occur if a pilot stayed overnight at a regional destination prior to a morning return flight. A layover might also occur if a pilot attended Wagga Wagga for the purpose of training or evaluation on REX’s simulator. Clause 58.1 provided that when absent on a layover, a pilot would be provided by REX with “appropriate accommodation”. Clause 3.4 defined “appropriate accommodation” as follows –

“Appropriate accommodation” means accommodation which is, as a minimum, clean, quiet and free from factors which may reduce adequate rest and must provide a separate room incorporating en­suite bathroom facilities for each Pilot, with air conditioning and or heating as appropriate to the area. Such accommodation will be assessed as per the most recent Dawson’s Hotel Guide Book or other guide as agreed by the REX PC at not less than a 3 star standard for non-capital cities and 4 star for capital cities. An initial assessment period shall apply as agreed.

9    The REX PC referred to in the above definition is a reference to the REX Pilots’ Committee, which liaised with REX’s management in relation to such issues. Both the 2005 and the 2011 Agreements contained provisions for working out a list of approved places of accommodation through consultation between REX and the REX PC, and for a settlement procedure in relation to any disputes about proposed changes to the accommodation arrangements.

The dispute about accommodation

10    In 2010, there was a disagreement between REX and the REX PC as to whether the residential facilities at the Academy at Wagga Wagga were appropriate accommodation for the purposes of discharging REX’s obligations under the 2005 Agreement. REX notified the REX PC that it proposed to change the existing approved accommodation in Wagga Wagga to include the accommodation facilities at the Academy. This proposal was resisted by the REX PC, and proceedings in Fair Work Australia under the disputes settlement procedure followed, but did not resolve the issue. By a decision dated 17 December 2010, a Commissioner of Fair Work Australia identified concerns with the size of the rooms and beds that made the accommodation unacceptable for pilots, save for a fly in/fly out stay of one night, in respect of which the Commissioner determined that there should be a four month trial for pilots, which then took place. Following that trial, the Federation informed REX that it did not support the use of the Academy as an alternative to hotel accommodation in Wagga Wagga. The primary judge found that accommodation at the Academy remained accommodation that was not “appropriate accommodation” for the purposes of the 2005 Agreement.

11    In April 2014, REX informed the REX PC that it wished to use the accommodation at the Academy for pilots undertaking checks using the flight simulator at Wagga Wagga. This led to a review of the accommodation at the Academy on behalf of the REX PC.

12    On 9 June 2014, and following an inspection of the facilities at the Academy, the Federation wrote to REX and stated that the accommodation at the Academy was not considered to be “appropriate accommodation” for the purposes of the 2011 Agreement, and set out reasons for that conclusion, and suggestions for improvement to address the concerns. From that point, the matter was not taken any further by REX. The primary judge found that at the time of the events the subject of the proceeding, the accommodation at the Academy remained as not “appropriate accommodation” for the purposes of the 2011 Agreement.

13    On 11 June 2014, the Crew Resources Manager of REX sent a memorandum to all pilots asking them to complete a preference form for accommodation when staying in Wagga Wagga for simulator duties. Two options were put to the pilots: (1) accommodation at the Academy; or (2) accommodation at the Mercure Hotel in Wagga Wagga, which was accepted as “appropriate accommodation” for the purposes of the 2011 Agreement.

14    On 1 July 2014, Mr Neville Howell commenced in the position of Chief Operating Officer of REX.

15    On 4 July 2014, the Crew Resources Manager of REX sent a further memorandum to all pilots. That memorandum stated that many pilots had not returned their preference form for accommodation at Wagga Wagga following the earlier request, and stated that pilots who did not complete the form by Wednesday 9 July 2014 would be accommodated at the Academy.

16    On 8 July 2014, the Federation wrote to Mr Howell of REX expressing concern about the 4 July 2014 memorandum and another written statement by REX that invited pilots to volunteer to stay at the Academy when using the flight simulator at Wagga Wagga. The other statement was contained in an internal newsletter of REX which referred to the new simulator at Wagga Wagga and stated –

REX management also hopes that all pilots using the simulator would volunteer to use the accommodation at [the Academy] instead of wasting money at the local hotel.

17    The Federation’s letter of 8 July 2014 emphasised that the accommodation at the Academy was not approved accommodation, requested that the memorandum of 4 July 2014 be withdrawn, and requested confirmation that no pilot would be pressured by REX to agree to stay at the Academy in unapproved accommodation. On 15 July 2014, the Federation wrote to Mr Howell again, and pursued a response to its earlier letter of 8 July 2014.

18    By email to the Federation dated 20 July 2014, Mr Howell stated that the memorandum of 4 July 2014 had been withdrawn, and that no pilot had been pressured by REX to stay at the Academy, and invited the provision of examples where this had occurred.

The 5 September 2014 letter

19    On 5 September 2014, Mr Howell wrote to three individuals who were shortlisted applicants for places in its pilots’ course. The terms of the letter (Letter) are central to the claims that were made by the Federation, and the material parts are set out below with the addition of paragraph numbers –

1.    You are being considered for a position in the Regional Express Cadet Pilot (RECP) programme. We consider this a very special honour as it means you have been assessed to have among the best technical/academic aptitudes amid the thousands of applications we have on record.

2.    However, for us at Regional Express (REX), pure technical skills alone are not enough. We are looking for Cadets who will acknowledge the privilege of this life-changing opportunity and commit to paying back to the Company by being fiercely loyal and company-minded and by going way above and beyond the call of duty especially in times of needs for the Company. This will provide the best chance for the Company to remain resilient and strong in this very tough industry and enable the Company to raise the next generation of Cadets and aspiring airline pilots.

3.    We expect you to honour all your commitments for at least the first 7 years of your career with the REX Group.

4.    We have encountered many Cadets in the past who promised us the Earth in order to be selected for the RECP programme, but once selected they very quickly show their true colours. Even simple requests like volunteering to stay at the [Academy] accommodation are refused when overnighting for simulator checks. Senior management and directors regularly stay at the [Academy] accommodation when on official visits and yet some Cadets find that this is not good enough for them (when they were perfectly fine with it for 9 months of their Cadet training) and instead choose to stay at the local motel, costing the Company more than $100 per night extra.

5.    You should be aware that the REX Group considers such Cadets to be totally lacking in integrity in breaking their solemn undertakings given earlier. The REX Group will not allow any pilot lacking in integrity to hold a command and will not consider him/her to be suitable for entry into the PICUS programme which is a pre-requisite to holding a command.

6.    For us to gauge if you would fit the profile of the type of Cadets we are looking for, we would like you to prepare a hand-written motivation letter telling us what this life-changing opportunity means to you and giving us your solemn promise to give back to the Company by volunteering to undertake various activities and actions.

7.    You should give specific examples of these activities and actions, like the one we have cited above, on the different concrete ways that you are willing to give back to the Company for this extraordinary opportunity and privilege afforded to you. Your final selection will be largely determined by how far you are motivated to go above and beyond the call of duty for the Company as detailed in the list of examples you will provide.

8.    If you are selected, we expect you to honour not only the contractual obligations as spelt out in your letter of employment and the Enterprise Bargaining Agreement, but also the solemn promises/commitments that you have articulated in your motivation letter. We therefore urge you to think carefully before you promise or commit to anything; your word is your bond and we reserve the right to respond accordingly if you break your word. So do not pursue this application for the RECP programme if you have the slightest doubts about your ability to honour your commitments over the next 7 years.

20    At trial, the scope of the Federation’s claims was the subject of dispute. Without entering upon the field of that dispute at this point, the Federation’s claims were made in a “Form 4” titled “Further Amended Claim under the Fair Work Act 2009 alleging contravention of a general protection…”. We will refer to this document as the further amended claim. The Federation claimed that the contents of the Letter related to two classes of persons. The first class, which was referred to as “affected class one” comprised persons who, as at 5 September 2014, were employee pilots and former cadets of REX. The second class, which was referred to as “affected class two”, comprised shortlisted applicants for the cadet program who ultimately accepted a place in the cadet program and were either undertaking, or had undertaken cadetships. The evidence was that there were three such cadets to whom the Letter was sent, and that each of them was subsequently accepted into the course, completed the course and was then employed as a commercial pilot by REX. For the purposes of this appeal, the Federation maintained its claims only in relation to “affected class two” to whom we will refer as the cadets.

21    The claims made by the Federation were premised on the existence of workplace rights, which by its further amended claim were alleged as –

(a)    the right to stay at appropriate accommodation whilst on layovers;

(b)    the right to refuse to agree to a proposed change to approved existing accommodation; and

(c)    the right to continue to stay at approved existing accommodation unless and until any dispute concerning a change to existing accommodation was resolved in accordance with the dispute settlement procedure in the 2011 Agreement.

22    Relevantly, the Federation claimed that by sending the Letter, REX contravened the FW Act in the following respects –

(a)    in contravention of s 340(1) of the FW Act, REX threatened to take adverse action against the three cadets if they did not forego a workplace right to stay at approved accommodation in Wagga Wagga;

(b)    in contravention of s 343 of the FW Act, REX threatened to take action with the intent of coercing the three cadets not to exercise their workplace right to benefit from the 2011 Agreement, and in particular the provisions concerning approved accommodation; and

(c)    in contravention of s 345 of the FW Act, REX knowingly or recklessly made representations to the three cadets (that were referred to in the Federation’s further amended claim as “false representations”), that –

(i)    those persons were not entitled to the benefit of the workplace rights;

(ii)    if those persons insisted on the benefit of the workplace rights, then REX would be entitled to, and would either –

(A)    refuse to employ those persons; or

(B)    if already employed, ensure that those persons’ career progression was effectively stalled.

The relevant statutory provisions

23    The provisions of the FW Act that the Federation claimed that REX contravened are within Part 3-1 of Chapter 3 of the Act. Section 336(1) provides that the objects of Part 3-1 include the protection of workplace rights and protection from workplace discrimination. Section 340 provides that a person must not take adverse action against another person because of a workplace right –

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.

24    Relevantly, a workplace right is defined by s 341 as including an entitlement to the benefit of a workplace law, workplace instrument, or order made by an industrial body, which includes the Fair Work Commission. Section 341(3) extends the concept of workplace rights to prospective employees.

25    The meaning of “adverse action” is addressed by a table in s 342(1). In addition, s 342(2) provides that adverse action includes threatening to take action that is covered by the table. Relevant to the Federation’s claims at trial in relation to the three cadets were items 2(a), and (b) of the table in s 342(1) which provide that adverse action is taken by a prospective employer against a prospective employee if the prospective employer –

(a)    refuses to employ the prospective employee; or

(b)    discriminates against the prospective employee in the terms or conditions on which the prospective employer offers to employ the prospective employee.

26    Section 343(1) of the FW Act provides that a person must not organise or take, or threaten to organise or take, any action against another person with intent to coerce the other person to exercise or not exercise, or propose to exercise or not exercise, a workplace right, or to do or not do so in a particular way.

27    Section 345(1) of the FW Act provides that a person must not knowingly or recklessly make a false or misleading representation about the workplace rights of another person or the exercise, or effect of the exercise, of a workplace right by another person.

28    Section 360 of the FW Act provides that a person takes action for a particular reason if the reasons for the action include that reason.

29    Section 361 of the FW Act provides that if in an application in relation to a contravention of Part 3-1 it is alleged that a person took, or is taking, action for a particular reason with a particular intent, then that is presumed to be so unless the person proves otherwise.

30    Item 11 of the table in s 539(2) of the FW Act, in the terms existing at the relevant time, gave standing to an industrial association to apply to the Federal Circuit Court (as it was then known) or the Federal Court for orders in relation to, relevantly, a contravention or proposed contravention of s 340(1), s 343(1) and s 345(1) of the Act. Section 539 is qualified by s 540(6), which provides –

Industrial associations

(6)    An industrial association may apply for an order under this Division, in relation to a contravention or proposed contravention of a civil remedy provision, only if:

(a)    the industrial association is affected by the contravention, or will be affected by the proposed contravention; or

(b)    if the contravention is in relation to a person:

(i)    the person is affected by the contravention, or will be affected by the proposed contravention; and

(ii)    the industrial association is entitled to represent the industrial interests of the person.

31    By its notice of contention, REX puts in issue the questions whether the appellant was entitled to represent the interests of any person affected by the contraventions alleged by the Federation, whether in accordance with its rules the appellant had authority to bring the proceeding, and whether the primary judge had erred in permitting the Federation to depart from the terms of its further amended claim. It will be necessary to say more about these contentions later.

The course of the proceeding prior to trial

32    The Federation commenced the proceeding by an application filed in the Fair Work Division of the Federal Circuit Court on 15 April 2015. The grounds of the application were set out in a document titled “Form 4 Claim under the Fair Work Act 2009 alleging contravention of a general protection”. Part G of the form, which was titled “Contravention(s) alleged” was completed by the insertion of 23 numbered paragraphs in the style of a pleading.

33    On 4 May 2015, REX filed a response to the claim which disputed the Federation’s standing to make the application, made a broad denial that it contravened the provisions of the FW Act, claimed that the Federation had not identified the adverse action, or the persons against whom adverse action was alleged to have been taken, and claimed that the Court lacked jurisdiction. REX did not address individually the 23 numbered paragraphs in the Federation’s claim.

34    On 22 May 2015, the Federation filed an amended claim which made several changes to the contraventions that were alleged, and which enlarged the claim to 33 numbered paragraphs. On 3 July 2015, REX filed an amended response which maintained the allegation that the appellant had failed to identify any particular person to whom the alleged contraventions were directed, repeated the claims that the appellant lacked standing and that the Court lacked jurisdiction, and under cover of those claims addressed the several allegations made by the Federation in its amended claim.

35    On 31 July 2015, REX filed an interlocutory application seeking summary dismissal of the proceeding on the grounds that the Federation had no reasonable prospect of successfully prosecuting the proceeding, or alternatively that the proceeding was an abuse of process. That application was argued on the ground that the claim failed to identify any particular person against whom the conduct alleged was said to have been taken, and on the further ground that the appellant lacked standing. On 17 February 2016, His Honour Judge Riethmuller of the Federal Circuit Court dismissed the application, holding for the purposes of the summary judgment application that the Federation had standing because it was entitled to represent the industrial interests of the persons to whom the alleged contraventions related, and that it was sufficient in relation to the claim alleging a threat of adverse action to identify a class of employees of REX: Australian Federation of Air Pilots v Regional Express Holdings [2016] FCCA 316.

36    REX appealed the decision dismissing its application for summary dismissal to the Full Court, after having obtained leave to do so. The Full Court (Jessup J, North J and White J agreeing) dismissed the appeal: Regional Express Holdings Ltd v Australian Federation of Air Pilots [2016] FCAFC 147; 244 FCR 344. At [14], Jessup J stated that on the appeal REX did not put in issue the correctness of the proposition that the persons who were alleged to have been affected by the contraventions were eligible for membership of the Federation, but that it claimed that eligibility for membership of the Federation was not sufficient to sustain the Federation’s standing. After a comprehensive review of the legislative history and context, Jessup J held that on the question of standing it was sufficient that the Federation was entitled to represent the industrial interests of the members of “affected class one” and “affected class two”, as defined by the Federation’s claim, without any requirement that those persons be members of the Federation, and that the Federation would be so entitled if the employees or prospective employees were eligible for membership under the Federation’s eligibility rules: see especially [59]-[62].

37    REX sought and obtained special leave to appeal the Full Court’s decision to the High Court of Australia. On 13 December 2017, the High Court dismissed REX’s appeal: Regional Express Holdings Ltd v Australian Federation of Air Pilots [2017] HCA 55; 262 CLR 456.

38    On 2 March 2018, the Federation filed in the Federal Circuit Court its further amended claim to which we referred earlier. By that document, the Federation’s statement of its claims was revised again, and was enlarged to 47 numbered paragraphs.

39    On 9 April 2018, REX filed a “further amended response (defence)” which addressed the paragraphs of the Federation’s claim individually. REX’s further amended response was substantially revised. Accepting that the Federation was entitled to represent the industrial interests of persons who were eligible to be members of the Federation pursuant to its rules, REX alleged by reference to the Federation’s rules that it was not entitled to represent the industrial interests of cadets.

40    On 23 April 2018, the Federation filed a reply. As to REX’s allegation that cadets were not eligible for membership of the Federation, the Federation alleged that the issue had been the subject of full argument before the Federal Circuit Court at what were the interlocutory hearings on 12 November 2015 and 31 March 2016, and that in the reasons of 17 February 2016 for dismissing REX’s application for summary judgment the Federal Circuit Court had found that cadets were eligible to be associate members of the Federation, and that the Federation was entitled to represent their industrial interests within the meaning of s 540(6) of the FW Act. The Federation also alleged that the High Court had found that the Federation was entitled to represent the industrial interests of persons eligible for membership pursuant to its rules, and that it was common ground that cadets were entitled to be members of the Federation pursuant to its eligibility rules, and did not confine the categories of membership to which its decision applied. The Federation alleged that in consequence, REX’s allegation that the Federation did not have standing in relation to cadets was an abuse of process, alternatively, that REX was estopped from raising those allegations in circumstances where the issue had already been argued and determined by the Federal Circuit Court.

The trial of the proceeding

41    The trial of the proceeding commenced on 17 July 2019. Shortly prior to the commencement of the trial, on 4 July 2019, the Federation and REX filed and exchanged written submissions. Those submissions were subsequently annotated by counsel for the parties and presented as closing submissions.

Threat to take adverse action – ss 340 and 342(2)

42    At trial, the Federation’s further amended claim alleged what were defined as the “second adverse action” and the “third adverse action” which were alleged to relate to “affected class two”, being the cadets. In relation to the “second adverse action” the allegations in the further amended claim were as follows –

SECOND ADVERSE ACTION

35.    On about 5 September 2014, shortlisted applicants for the cadet program (prospective employees) were advised by the respondent in writing:

a.    that their selection into that program was dependent on the provision and content of a hand-written ‘motivation’ letter;

b.    that the motivation letter was to include “solemn promises” to undertake various activities and actions in the event of employment;

c.    that the ‘solemn promises’ should include an undertaking to stay at the [Academy] whilst on overnight layovers, and not to insist on the provision of approved existing appropriate accommodation in accordance with the workplace rights.

36.    Some of the prospective employees were ultimately offered, and accepted, a place in the cadet program and are currently undertaking, or have undertaken, cadetships (affected class two).

37.    For the purposes of the second adverse action, affected class two is limited to those prospective employees who were ultimately accepted into, and are currently undertaking, or have undertaken, the cadet program.

38.    The statements described at paragraph 35 constitute a threat to refuse to employ those members of affected class two who would not undertake to give up one or more of the workplace rights.

39.    The adverse action described at paragraphs 35 and 38 was taken to prevent members of affected class two from exercising workplace rights once employed by the respondent.

40.    Affected class two is, and will continue to be affected by the second adverse action by reason that any prospective or actual employment is or will be on terms which are disadvantageous as compared to other employee pilots.

41.    The applicant is entitled to represent the industrial interests of affected class two.

43    In relation to the “third adverse action” the Federation’s allegations in its further amended claim were as follows –

THIRD ADVERSE ACTION

42.    On about 5 September 2014 prospective employees, including members of affected class two, were advised by the respondent in writing that:

a.    if ultimately employed by the respondent, they would be expected to honour the ‘solemn promises’ made in the motivation letter described above at paragraph 35, including the promise to stay at the [Academy] whilst on overnight layovers;

b.    in the event that the undertakings provided for in the motivation letter were not honoured once employment commenced, the respondent “reserve[d] its right to respond accordingly.”

43.    The statements described at paragraph 42 constitute a threat to discriminate in the terms or conditions on which employment is or was to be offered to members of affected class two, by:

a.    Subjecting the class to a term of employment which prohibits members of the class from relying on the workplace rights in circumstances where other employee pilots are entitled to rely on the workplace rights (disadvantageous term); and

b.    Threatening to stall the career progression of any member of affected class two who refuses to comply with the disadvantageous term, in circumstances where other employee pilots - with the exception of affected class one - are not subject to any such threat.

44.    The adverse action described at paragraphs 42 and 43 was taken to prevent prospective employees from exercising the workplace right once employed by the respondent.

44    The Federation’s case was opened on the basis that the terms of the Letter contained two threats to the three cadets. The first threat, which was referred to as “the Employment Threat”, was that REX threatened to refuse to employ cadets who did not give an undertaking that they would refrain from exercising their workplace right to the benefits of the 2011 Agreement, and in particular those relating to approved accommodation. For this threat, the Federation relied on the terms of the Letter in the paragraphs numbered 1, 4, and 6 as set out at [19] above, in the context of the Letter as a whole and in light of the surrounding circumstances. The Federation claimed at [34] of its written opening that REX made the Employment Threat with the intention or motivation of preventing the cadets from exercising their workplace right to the benefit of the 2011 Agreement, and in particular to cl 58.2 of the 2011 Agreement. The Federation relied on the evidentiary presumption in ss 360 and 361 of the FW Act in relation to the reasons alleged.

45    In its written opening at trial the Federation referred to a second threat, which was defined as “the Sanction Threat”, which relied on the terms of the paragraph of the Letter that we have numbered 8. The Federation claimed that by the statements in that paragraph, REX had threatened that persons accepting employment with REX would be offered terms and conditions less favourable than those afforded to existing employees of REX, in that they: (a) would be bound not to exercise their workplace right to the benefit of the 2011 Agreement (or parts thereof); and/or (b) would be subject to sanction if they elected to exercise their workplace right to the benefit of those parts of the 2011 Agreement that they had undertaken to forego. At [40] of its written opening, the Federation claimed that REX made the Sanction Threat with the motivation or intention of preventing the cadets from exercising their workplace right to the benefit of cl 58 of the 2011 Agreement and/or the 2011 Agreement, and again relied on ss 360 and 361 of the FW Act.

Threat to take action with intent to coerce – s 343

46    In relation to the Federation’s claim that by the Letter REX had threatened action against the cadets with intent to coerce in contravention of s 343 of the FW Act, the Federation’s further amended claim alleged as follows, in which the references to “affected class two” are to the cadets  –

COERCION

45.    By reason of the matters set out at paragraphs 28-44, and in breach of section 343 of the Fair Work Act, the respondent:

a.    …

b.    threatened to organise and take action against prospective employees in affected class two, including threatening not to employ those persons;

c.    threatened to organise and take action against prospective employees in affected class two, once employed, including threatening to effectively stall their career progression

   in order to coerce those persons not to exercise the workplace rights.

47    In its written opening at trial, the Federation claimed that the threats against the cadets were: (a) to refuse to employ them; (b) to employ them on terms and conditions less favourable than those afforded to existing REX pilots; and/or (c) to sanction them if, having accepted employment, they exercised workplace rights that they had undertaken not to exercise. The Federation relied on the evidentiary presumption in s 361 of the FW Act, and submitted that it was for REX to demonstrate that it had not sent the Letter with intent to coerce, that is, to negate choice.

48    As for the alleged action that was threatened, the Federation claimed at [54] of its written opening that the threat to take action against the cadets was unconscionable or illegitimate. We set out the allegations below, but we interpret the references in them to “Class One” as being references to “Class Two”, and therefore referring to the cadets –

54.    The threat to take action against Class Two was unconscionable or illegitimate because –

a.    members of Class One [sic] were:

i.    competing in a highly competitive application process;

ii.    were applicants for a unique position with high barriers to entry and a limited number of places; and

iii.    had already been assessed as possessing the technical skills necessary for appointment to the position;

iv.    significantly invested in the application process;

v.    had few accessible remedies to challenge a decision by Rex not to employ them if the [sic] failed to give the required undertakings;

b.    the RECP is unique in Australia and the alternative career pathways were of a substantially different kind;

c.    applicants for the RECP did not have equal bargaining power with Rex; and

d.    members of Class One [sic] were, by reason of the matters in (a)-(c) above, vulnerable to an abuse of power by Rex.

49    The submissions then claimed at [55] –

55.    It follows that, unless Rex discharges its onus on the intention to negate choice element of coercion, this contravention will be made out.

False or misleading representations – s 345

50    By its further amended claim, the Federation made the following allegations in relation to its claim that REX had contravened s 345 of the FW Act –

Misrepresentation

46.    By reason of the statements made by the respondent (described at paragraphs 28, 35 and 42 [all being allegations about the Letter]), and in breach of section 345 of the Fair Work Act, the respondent knowingly and/or recklessly represented to members of affected classes one and two that:

a.    those persons were not entitled to the benefit of the workplace rights;

b.    if those persons insisted on the benefit of the workplace rights, the respondent would be entitled to, and would either:

i.    refuse to employ those persons; or

ii.    if already employed, ensure that the those persons’ career progression was effectively stalled

(false representations).

47.    The false representations were about the workplace rights, and/or the effect of the exercise of the workplace rights.

51    By its written opening filed before trial, the Federation alleged the representations somewhat differently, and claimed that in the context of surrounding circumstances the Letter contained the following implied representations –

59.    In the context of those surrounding circumstances, and the Letter read as a whole, the Letter contained implied representations that:

(a)    REX could lawfully determine whether or not to offer employment to persons by reference to whether those persons were prepared to undertake not to exercise workplace rights;

(b)    REX could lawfully refuse to offer employment to a person if they failed to give an undertaking not to exercise certain workplace rights;

(c)    REX could lawfully refuse to accept a person into the PICUS course or refuse to offer a person a command if that person exercised their workplace right to the benefit of the 2011 Agreement; and/or

(d)    REX could lawfully sanction a person who undertook not to exercise a workplace right and later elected to exercise that workplace right.

52    The Federation then alleged at [62] of its written opening at trial that the representations were false or misleading, which enlarged the allegation in its further amended claim which alleged only falsity –

62.    In the present case, the representations, having regard to the Letter read as a whole and the surrounding circumstances, were false and/or misleading because it was, by operation of the FW Act, unlawful to:

(a)    determine whether or not to offer employment by reference to whether a prospective employee was prepared to undertake not to exercise workplace rights;

(b)    refuse to offer a person employment unless they agreed not to exercise their workplace rights;

(c)    refuse to offer an employee entry into a select training course, or a promotion, on the basis that the employee had exercised, or would exercise or proposed to exercise, workplace rights; and

(d)    sanction [an] employee who chose to exercise workplace rights, having earlier undertaken not to do so.

53    As to the question whether REX made the false or misleading representations that were alleged “knowingly or recklessly”, which is a necessary element of s 345, the Federation acknowledged at [63] of its written opening that it carried the burden in relation to this element.

REX’s threshold objections to the Federation’s claims

54    We mentioned at [39] above that REX filed a “further amended response (defence)” which alleged that the Federation was not entitled to represent the industrial interests of cadets. The relevance of this allegation is to the standing provision in s 540(6) of the FW Act, which we set out at [30] above, and which provides that an industrial association may apply for an order in relation to a contravention of a civil remedy provision only if, in the case of a contravention in relation to a person, the person is affected by, or will be affected by the contravention, and the industrial association is entitled to represent the industrial interests of the person. These are necessary conditions of standing in this case.

55    By its submissions to the primary judge, REX pursued the question of standing. REX submitted that in relation to the cadets, the Federation had not brought forward anyone who could be said to be affected by the contravention, and pursued its claim that the Federation was not entitled to represent the industrial interests of the relevant cadets. It was further submitted on behalf of REX that none of the three cadets who received the Letter had made application for associate membership of the Federation, and there was no ratification by the Federation’s Finance Committee of any decision to commence and fund the proceeding. We will address the terms of the Federation’s rules in more detail when addressing the issues raised by the notice of contention.

56    Otherwise, by its further amended response, while admitting the Letter, REX denied the Federation’s allegations of contravention of the FW Act, and by way of positive plea alleged at [44] that –

… the letter and the matters referred to in the letter, … were to assist [REX] to ascertain the character and integrity of the short-listed applicants solely for the purpose of determining whether they should be granted the life-changing opportunity and access to the training program and have access to the unsecured loan of $105,000.

57    In its opening written submissions to the Federal Circuit Court at trial, REX submitted that the scope of the trial was to be determined by the pleadings, and only the pleadings, citing Australian Building and Construction Commissioner v Hall [2018] FCAFC 83; 261 FCR 347 (ABCC v Hall) at [49]-[50]; Parker v Australian Building and Construction Commissioner [2019] FCAFC 56; 270 FCR 39 at [239], [383]; and Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (The Broadway on Ann Case) [2018] FCAFC 126; 265 FCR 208 at [131]-[132] (Bromwich J, dissenting, but not in point of principle - see Pattinson v Australian Building and Construction Commissioner [2020] FCAFC 177; 384 ALR 75 at [151], [162], [169]). In response, in opening address before the primary judge, counsel for the Federation submitted that the parties were “not operating on the basis of pleadings”, and that the claim and response that were filed were not the same as a statement of claim and a defence. The primary judge addressed these competing submissions in the course of His Honour’s reasons for judgment, but did not rule upon the point during the course of the trial. We will address the course that the primary judge took later in these reasons.

The notice to produce

58    It appears from the transcript of the trial and from REX’s submissions below and to this court that REX served a notice to produce on the Federation. At the commencement of the trial, counsel for the Federation foreshadowed a challenge to the notice to produce. After some discussion about the availability of Mr Howell as a witness, and the expected duration of the hearing, counsel for the Federation returned to the notice to produce, and an exchange took place, the substance of which was that notwithstanding the Federation’s objections to the notice, and its submissions that it should be set aside, counsel for the Federation stated that there were no documents to produce in response in any event. It does not appear that the notice to produce that was the subject of the exchanges, or the surrounding correspondence that was referred to at the hearing, were tendered.

Witnesses

59    The Federation called two witnesses: (1) Mr Eric Djonlagic, who was a pilot formerly employed by REX and who had undertaken the cadet program but who had chosen to leave REX after five years and take up employment as a pilot in New Zealand; and (2) Mr Robin Darroch, who was a Captain employed by REX and who had been the Chair of the REX PC since about 2010. Both witnesses gave evidence-in-chief by adopting affidavits following rulings on objections. Mr Djonlagic was cross-examined briefly by counsel for REX, and Mr Darroch was not cross-examined.

60    Counsel for REX called its Chief Operating Officer, Mr Howell, who was the author of the Letter. Mr Howell suffered the onset of a medical condition on the first day of the trial, and was unable to give evidence that day. The hearing of the proceeding was adjourned before lunch on the first day and resumed three months later on 16 October 2019. Mr Howell gave his evidence-in-chief by an affidavit that was tendered following rulings on objections. By his affidavit, Mr Howell gave evidence about (inter alia) REX’s operations, the employment of pilots, and the recruitment of cadets for the course undertaken at the Academy. In relation to the Letter, Mr Howell explained his reasons for its composition. He stated that he was not requiring shortlisted candidates to commit in their motivation letter to volunteer to stay at the accommodation at the Academy for overnight simulator checks, and that the instance of cadets volunteering to stay at the Academy and then refusing to do so was just an example of the type of commitment that a cadet could make, but then later not comply with. He stated that what he wanted from the Letter was for the shortlisted candidates to give examples and commitments about how they would go above and beyond the call of duty, and that it was not a requirement or even an expectation that they would commit to staying at the Academy. Mr Howell specifically denied that he sent the Letter in order to threaten or coerce the cadets, or because the cadets had or proposed to exercise any workplace rights, or to prevent the cadets from exercising workplace rights, including the right to stay at the hotel accommodation at Wagga Wagga. Mr Howell also denied that he had misrepresented the nature of workplace rights. Mr Howell was cross-examined for some time by counsel for the Federation.

61    Counsel for REX also tendered an affidavit of Mr Stephen Manna, who was a pilot who commenced employment with REX on 19 August 2015 after completing the REX cadet programme, and who had received the Letter. Mr Manna was not cross-examined.

The primary judge’s reasons

62    In the primary judge’s reasons (J), his Honour addressed the submissions advanced on behalf of REX about the state of the Federation’s documents setting out the claims that were advanced. The primary judge addressed the extent to which the Federation’s case at trial conformed with the claims made in its “Form 4” further amended claim. His Honour stated at J [23], [27], and [28] that the Federation advanced a case that differed from what was set out in its further amended claim, and identified the alleged contravention of s 345 of the FW Act relating to misrepresentations as the clearest example of a departure from the Federation’s further amended claim. His Honour did not specify other respects in which the case that was opened on behalf of the Federation deviated from the further amended claim. However his Honour held that REX was not denied procedural fairness because it had notice of the Federation’s claims by the written submissions filed prior to trial, and also the oral opening. His Honour’s reasoning on these issues was as follows –

22.    The Applicant commenced this application under rule 45.08 of the Federal Circuit Court Rules 2001 (‘Rules’). That rule permits an applicant to file a claim of this type in accordance with the approved form (‘Form 4’) and that the form be accompanied by a claim. The Applicant’s claim was contained within the Form 4.

23.    At the opening of the trial, the Applicant advanced a case that differed from what was set out in the Form 4.

24.    In response to the above, the Respondent contended that the scope of the trial was to be determined by the pleadings and only the pleadings. The Respondent submitted that the Application, the Response and the Reply ought to be regarded as pleadings and the Applicant’s case ought to be confined to matters disclosed by the pleadings.

25.    The submission that this case has been conducted on the pleadings is problematic for a number of reasons. Section 50 of the Federal Circuit Court of Australia Act 1999 expressly provides that proceedings can be instituted in this Court without pleadings. The Rules of this Court do not provide for pleadings. The Applicant commenced the proceedings under the Rules in a manner that is permitted by the Rules. Equally however, this is a matter in which the Applicant filed a Reply to the Response. In doing so, it appears to invoke the Federal Court Rules 2001 in relation to pleadings.

26.    In Banque Commerciale SA, En Liquidation v Akhil Holdings Ltd (1990) 169 CLR 279 at 286-287, Mason CJ and Gaudron J explained an essential function of pleadings is to ensure ‘a basic requirement of procedural fairness that a party should have the opportunity of meeting the case against him or her’. The relevant question it seems to me in this case is not whether the initiating process filed by each party constitute pleadings or not, or whether the parties should be held to the Form 4 and Response, but rather, whether the Respondents have been denied procedural fairness because at trial, the Applicant advanced a case that differed from what was set out in the Form 4.

27.    The Applicant did advance a case at trial that was to some extent different from the case disclosed by the Form 4. The clearest example of this is the case that the Applicant sought to advance in terms of the alleged contravention by the Respondent of section 345 of the Act (though there exists other departures when the Applicant’s written outline is compared to the Form 4).

28.    While the Applicant did advance, to some extent, a different case at trial to what was disclosed in its Form 4, I find that the Respondent was not denied procedural fairness, and that the Applicant may pursue the case it outlined in its opening. I do so for the following reasons. This was a matter in which written outlines of argument were filed in advance of the trial. In this matter, the written outline was filed by the Applicant on 4 July 2019, some 8 business days before the date of commencement of the trial. Accordingly, the Respondent was on notice from this time as to the case it was required to meet. It could have taken any number of steps, including seeking an adjournment of the trial and a costs order against the Applicant, in order to deal with any prejudice. The Respondent did not do so.

29.    That, however, is not the end of the matter. When the trial opened, it had to be adjourned on the first morning because a key witness was unavailable. That resulted in the trial being delayed for a further 3 months. The adjournment occurred after the Applicant had opened its case orally. Accordingly, the Respondent had a further period of three months in which to consider the Applicant’s case (disclosed both in the written outline, and in its oral opening at the trial) and decide how to meet it.

30.    Given the circumstances above, I consider that the Respondent cannot now be heard to complain that it was denied procedural fairness, or suffered prejudice, because of the degree to which the case, as advanced at trial, departed from the Form 4. The Respondent suffered no material loss of opportunity to meet the case advanced by the Applicant. Accordingly, the Court will deal with the claims as advanced by the Applicant at trial.

31.    The conclusions I have expressed above are very much applicable to the circumstances of this case. They ought not to be taken as an endorsement by this Court that parties are free to advance a case at trial that is different from that which is advanced in the initiating documents filed in this Court, whether those documents be pleadings, an Application and a Response, or any other variant. In the ordinary course, a party advancing a case different from that notified ought to be expected to be held to the claims or defence advanced in the initiating documents.

63    The primary judge also addressed questions of onus of proof. His Honour characterised the claims for contravention of s 340 and s 343 of the FW Act as involving threats of action, and held at J [20] that the evidentiary presumption in s 361 of the FW Act did not apply to threats, citing Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2017] FCA 1398 at [70] (Tracey J). His Honour noted that the Federation had accepted that proposition, although as we discuss later the Federation’s position was more nuanced. His Honour therefore considered the Federation’s claims on the basis that the Federation bore the onus of proof in relation to all elements. We pause to note at this point that after the judgment below, in Australian Building and Construction Commissioner v Molina [2020] FCAFC 97; 277 FCR 223 (ABCC v Molina) the Full Court (Bromberg, Colvin and Abraham JJ) held that s 361 of the FW Act applies to allegations of threats of action or organising action with intent to coerce that would contravene s 348, which concerns coercion with respect to industrial activity.

64    The primary judge then made detailed findings about the substance of the Federation’s claims. However, his Honour did not address the submissions that had been made on behalf of REX about the Federation’s standing to bring the claims, or whether it had been authorised to do so in accordance with its rules.

65    The primary judge found that the Letter was sent to candidates for entry into the respondent’s cadet program known as “REX 17”. His Honour did not make any specific findings about the identity of the persons to whom the Letter was sent. However, it appears to have been accepted that the Letter was sent to three cadets: Mr Manna, Mr Uscinski, and Ms Carr. His Honour found that REX sent the Letter as part of its recruitment process, and that it was not the first occasion upon which REX had sent such a Letter to candidates for its cadetships asking them to make “solemn promises” voluntarily to contribute to REX. His Honour referred to earlier iterations of the Letter that were before the Court, and at J [47] set out as an example a letter from September 2012. His Honour then considered in turn the Federation’s claims that: (1) REX had threatened to take adverse action against the alleged classes of persons in contravention of s 340 and s 342(2)(a) of the FW Act; (2) REX had threatened to take action against the alleged classes of persons with intent to coerce in contravention of s 343 of the FW Act; and (3) REX had knowingly or recklessly made false or misleading representations in contravention of s 345 of the FW Act.

Threat to take adverse action – s 340

66    As to the claim that there had been a threat to take adverse action against the cadets, the primary judge held that the terms of the Letter did not constitute a threat of unlawful adverse action, finding as follows –

57.    The Letter does not state, as the Applicant asserts, that the Respondent will refuse to employ members of affected class two [the three cadets] who do not give an undertaking to stay at the accommodation at the Academy. Nor does the Letter say that members of affected class two would be bound not to exercise their workplace rights, or that they would be subject to sanction if they elected to exercise their workplace rights. The Letter says neither of these things (nor can these be reasonably inferred).

58.    It is important, in my view, to look at the Letter as a whole and to ascertain the subject matter to which it is directed. The Letter is a letter to prospective cadets during a recruitment process. It is a document that is providing information and inviting a response. It explains that ‘technical skills alone are not enough’ and that the Respondent expects cadets to go ‘beyond the call of duty’. It then seeks from candidates ‘solemn promises’. Candidates are not required to respond to the Letter.

59.    The Letter does not require candidates to give any particular promise – it expressly leaves that choice to the candidate. So much is evident from the terms of paragraph 6 which refers to a candidate undertaking ‘various activities and actions’, paragraph 7 which calls for the giving of ‘specific examples’ and paragraph 8 which refers to the ‘solemn promises/commitments that you have articulated in your motivation letter’ (emphasis added).

60.    Two statements in the Letter attracted particular debate in the hearing. The first is that the Respondent ‘will not allow any pilot lacking in integrity to hold a command’. The second statement is that the Respondent ‘will not consider him/her suitable for entry into the PICUS Program’ (‘Statements’). These Statements are contained within a single sentence. An issue is to whom these Statements are directed.

61.    I consider that the Statements set out above are directed at individuals who break ‘their solemn undertakings’. That the express text of the Letter supports such a conclusion is apparent from what follows:

(a)    As stated above, the Letter is directed at ensuring that candidates honour all their commitments. This can be seen from paragraph 3 which begins with the words ‘We expect you to honour all your commitments…’;

(b)    While paragraph 4 contains the example of persons refusing to stay at the Academy, its focus is on integrity – on persons who promised something – ‘promised us the earth’ and then do something else;

(c)    The Statements are contained in the paragraph that is clearly addressed to those who break their solemn undertakings. So much may be seen from the first sentence of paragraph 5 of the Letter which provides as follows: ‘you should be aware that the REX Group considers such Cadets to be totally lacking in integrity in breaking their solemn undertakings given earlier’. Further, when the entire sentence containing the Statements is read, it can be seen from the words that precede the Statements that the Statements are directed to persons ‘lacking in integrity’;

(d)    Paragraph 6 of the Letter seeks the provision of a motivation letter containing the ‘solemn promise to give back to the company by volunteering to undertake various activities and actions’.

(e)    The final paragraph of the Letter emphasises the expectation on candidates to honour their ‘solemn promises/commitments’ and advises them not to pursue their application if they have the slightest doubt about their ‘ability to honour your commitments over the next seven years’.

62.    The emphasis in the Letter placed on integrity and honouring commitments is unexceptional when one takes into account the circumstances. This is not to be an ordinary employment relationship. It is one where the parties are contemplating entering into a relationship of at least seven years, and one which will see the commencement not only of an employment relationship, but also a relationship of debtor/creditor in order to fund the training of the candidate. Further, the emphasis on integrity is unremarkable when consideration is given to the roles cadets will ultimately fill – pilots in command operating an aircraft with passengers safely.

63.    There is then the evidence of Neville Howell. Mr Howell is the Chief Operating Officer of the Respondent and the author of the Letter. Mr Howell’s evidence was that the reference to ‘[the Academy] accommodation’ in the Letter was given as an example of persons who had not adhered to commitments. He did not have any particular person in mind. He sought from candidates specific examples of commitments they would give and follow through with. His evidence in chief was that he sent the Letter because the integrity and character of candidates was a very important consideration for entry into the RECP Programme. He also, in evidence in chief, expressly disavowed that he sent the Letter to threaten people in relation to the exercise of their workplace rights.

64.    Mr Howell was cross examined at length about his reasons for sending the Letter. Under cross examination, Mr Howell made a number of statements that the Applicant asserted, effectively, amounted to admission or were dispositive of the case in the Applicant’s favour.

65.    I have considered closely the evidence of Mr Howell in chief and in cross examination. His evidence in many ways largely reflected the content of the Letter. That is that Mr Howell regarded it as very important that individuals keep promises, and that there would be consequences for those who break their promises. Mr Howell was resolute in his views about the singular importance of integrity to the Respondent. Further, given the opportunity to clarify his answers on re-examination, Mr Howell returned to the central theme of his evidence in chief and emphasised that when he referred in the Letter to those lacking in integrity, he was referring to those who make a commitment and then renege on it.

66.    I had the benefit of observing Mr Howell in the witness box. He was careful in giving evidence. He sought to explain his answers. He did not resile from the importance of integrity in the Respondent’s operations.

67.    Having seen Mr Howell in the witness box, I find that when he wrote the Letter, it was his intention to extract from candidates commitments or ‘solemn promises’ and to inform candidates of the consequences for them if they broke those commitments. Mr Howell was concerned to ensure that candidates understood the importance of integrity as part of the recruitment process, and the view the Respondent took of persons who lack integrity (i.e. those who break their promises). Mr Howell did not intend to refuse to employ a person who did not stay at the Academy. Mr Howell did not, and did not intend to, threaten to sanction a person because they chose not to stay at the Academy. The Statements were directed at those who broke their promises.

68.    As I have noted, the Applicant, understandably, points to the timing of the inclusion of the [Academy] accommodation example in the Letter and that it followed renewed attempts by the Respondent to require pilots to stay at the Academy. It says, among other things, that that context and history ought to inform the Court’s view about the content of the Letter, and Mr Howell’s intentions in writing it. I accept that the context of surrounding events can be important in coming to a view about whether the Letter threatened adverse action. That does not mean, however, that I should look beyond the ordinary words used in the Letter.

69.    To the above I would also add the following. To the extent that the history to the matter is of significance, all of it needs to be considered. One additional factor evident from the history and context is that the Letter was not the first of its type sent to prospective cadets. Versions of the Letter were sent from at least September 2012. A review of the earlier letters (one of which is set out earlier in these reasons) discloses that the Respondent has, well before the present proceedings, placed an emphasis on the importance of integrity and honouring commitments. Indeed, the Respondent has a history of asking prospective candidates to give solemn promises over and above their contractual commitments. Mr Howell was not the author of the earlier letters. Those letters however, demonstrate two things. They support Mr Howell’s evidence about the primary importance placed on integrity by the Respondent. They disclose the history of cadets being asked to give promises. They also show a history of the company explaining to cadets the consequences of them breaking their promises.

Threat with intent to coerce – s 343

67    The primary judge also held that REX had not engaged in conduct that contravened s 343 of the FW Act. His Honour’s reasons were as follows –

85.    The threats against affected class one are said to be the threat that members of the class lacked integrity, would be denied entry into the PICUS course and would not be allowed to hold a command. The threats against affected class two are said to be a refusal to employ them, to employ them on terms and conditions less favourable than existing employees, or a threat to sanction them if, having accepted employment, they exercise their workplace rights. 

86.    The expression ‘intent to coerce’ in section 343 of the Act requires the Court to be satisfied about two discrete elements: Esso Australia Pty Ltd v Australian Workers Union [2016] FCAFC 72 (‘Esso’). First, that there was an intent to negate choice. Second, that there was the use of unlawful, illegitimate, or unconscionable means to do so. An intent to coerce refers to more than a mere inducement to comply: Esso. Coercion connotes something akin to the use of force, or at least the threat of harm to the interests of another: National Tertiary Education Union v Commonwealth of Australia [2002] FCA 441 (‘NTEU’) at [97]. What is required is an intent to negate choice, and not merely an intent to influence or to persuade or induce: NTEU at [103]. Coercion implies a high degree of compulsion, at least in a practical sense, not some lesser form of pressure by which a person is left with a realistic choice as to whether or not to comply: NTEU at [103].

87.    I deal firstly with whether there was an intention to negate choice. The starting point is to consider the context in which the Letter was sent. I have dealt with this issue earlier and rely on my earlier findings. In summary, the Letter was sent to candidates for a cadetship as part of the Respondent’s recruitment process. The purpose of the Letter was to secure from candidates a handwritten motivation letter in which they made ‘solemn promises’ that they chose to give to the Respondent.

88.    There is then the terms of the Letter itself. Again, I rely on my earlier findings. In summary, the Letter did not request any specific commitment from candidates. Rather, the Letter permitted candidates to choose which commitments they wished to give. The Letter emphasised the importance of integrity and of candidates honouring their commitments. The Statements applied in respect of a failure by a person to honour their commitments. 

89.    The terms of the Letter also went one step further. Candidates were informed not only of the expectation that they honour their commitments, but were informed not to pursue the application if they had the slightest doubts about their ability to honour their commitments. In other words, it was entirely up to the candidate as to what response they gave and indeed whether they chose to pursue the application for the cadetship. 

90.    The Applicant contends that the positions for cadetships were highly sought after. That may well be the case. Indeed, many employment opportunities are highly sought after and hotly contested. That fact alone however, does not mean that an applicant had no effective choice or that they were otherwise coerced. Here, the Letter makes plain that not only did the candidates have a choice as to what commitment they gave, but they also had a choice as to whether they wished to pursue their application.

91.    For completeness, I note that the second element required to establish coercion is that the Respondent utilised means that were unlawful, illegitimate or unconscionable. There is not any unlawful conduct of the Respondent. The Applicant submits however, that unconscionable or illegitimate pressure was brought to bear on members of each affected class.

92.    The Applicant submitted that members of the affected classes were bound (or would be bound) to the Respondent for a period of at least seven years, were unable to take alternative employment, and were subject to onerous loan agreements. 

93.    I accept that the arrangements relating to the loan agreements in evidence before me are not what one might regard as ordinary commercial or personal loans. Some of the terms are more onerous than those that might be imposed by a bank, including the imposition of financial penalties if cadets ultimately left employment with the Respondent to take up employment elsewhere. It is critical, however, to remember that the loans on offer are unsecured loans. Furthermore, they are loans that permit a cadet to focus on training, and not be distracted by having to gain other employment to immediately commence repaying the loan. The advantages enjoyed by a cadet under the RECP Programme, in terms of faster training, have been recorded earlier. The commercial arrangement on offer, it seems to me, balances these considerations. A candidate enjoys an expedited path through training and licensing and into command. With that comes the particular loan obligations. It is a choice they are ultimately free to make. That many of them choose it and enjoy the advantages that come with it means, in my view, that they cannot properly be heard to complain about the terms that are less favourable to them. At the end of the day, what is struck is a bargain, and every bargain has its positive and negative aspects.

94.    To the above matters the following may be added. It is common in this day and age for students in a variety of disciplines to take out loans to further their education. Such loans may be through (admittedly) generous Government schemes, or may be obtained on private terms that are more commercial in nature. Students often incur significant debts and face the prospect of not being able to secure employment at the end of their studies in their chosen field. The ubiquity of such arrangements, in my view, detracts significantly from the proposition by the Applicant in this case that the loans or the loan terms, or a cadets ability to ultimately repay the loans, should be regarded as giving rise to circumstances that are unconscionable or illegitimate.

95.    Finally, insofar as affected class two are concerned, many students in a variety of settings find themselves in highly competitive application processes, for limited numbers of positions and are significantly invested in the process. Those matters of themselves, or in combination with the loan terms, do not result in a conclusion that the Respondent has applied illegitimate or unconscionable pressure on members of affected class two.

False or misleading representations – s 345

68    Finally, the primary judge rejected the Federation’s claim that by sending the Letter REX had knowingly or recklessly made false or misleading representations to the three cadets in contravention of s 345 of the FW Act. His Honour’s reasons were as follows –

97.    The final allegation made against the Respondent is that it has contravened section 345 of the Act. The Applicant submitted four implied representations emerged from the Letter that contravened section 345 of the Act. The asserted representations taken from the Applicant’s written submissions are: 

‘(a)    REX could lawfully determine whether or not to offer employment to persons by reference to whether those persons were prepared to undertake not to exercise workplace rights; 

(b)    REX could lawfully refuse to offer employment to a person if they failed to give an undertaking not to exercise certain workplace rights; 

(c)    REX could lawfully refuse to accept a person into the PICUS course or refuse to offer a person a command if that person exercised their workplace right to the benefit of the 2011 Agreement; and/or 

(d)    REX could lawfully sanction a person who undertook not to exercise a workplace right and later elected to exercise that workplace right.’ 

98.    There are a number of elements that must be satisfied in order for a court to form the view that section 345 of the Act has been contravened. Among other things, the representation must be either false or misleading. It must also be ‘about’ one of the matters specified in subsection (1)(a) or (1)(b) of section 345 of the Act.

99.    The principles relating to whether a representation is false or misleading in the context of section 345 of the Act were canvassed by a Full Court of the Federal Court of Australia in Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (2015) 230 FCR 298 (‘BHP Coal’) at [156] to [162]. I do not repeat here all of the observations of the Full Court, but rely on them.

100.    I find that the Letter does not convey representations that are either false or misleading. My reasons for so finding are as follows. 

101.    Firstly, regard must be had to the terms of the Letter. The Letter does not refer to the relevant clauses in the 2011 Agreement. It does not refer to a workplace right. As the Letter says nothing about the clauses in the 2011 Agreement, it says nothing about the effect of those clauses.

102.    Second, to the extent it might be said that the example given in the Letter is inconsistent with any workplace right, that of itself does not make the representation about a workplace right. In BHP Coal, the union published its own policy about overtime. The statement in the union policy was inconsistent with BHP’s workplace rights. The fact that there was an inconsistency between the union policy and BHP’s workplace rights did not produce the result that the union statement was ‘about’ workplace rights. 

103.    Third, words in documents must be read in context. In Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd (1982) 149 CLR 191 at 199, in the context of misleading conduct under section 52 of the Trade Practices Act 1974, Gibbs CJ stated that it ‘is obvious that where conduct complained of consists of words it would not be right to select some words only and to ignore others which provided the context which gave meaning to the particular words’. 

104.    I have already in these reasons given my views on the terms of the Letter. I rely on those findings in respect of the context referred to by Gibbs CJ here including that: 

(a)    The Letter seeks that candidates identify the commitments that they are prepared to give to the Respondent; 

(b)    A candidate is at liberty to select the commitments that he or she wishes to give; 

(c)    The Letter does not require candidates to give a commitment to not stay at the Academy;

(d)    The Letter does not say that if a candidate fails to stay at the Academy, the candidate will not be admitted for entry into PICUS, or withheld from command; 

(e)    The Letter does stipulate that if a candidate does not honour the commitments that he or she has made, he or she will lack integrity, and persons who lack integrity will not be permitted to hold a command or be considered for entry into PICUS.

105.    The above matters, in my view, provide context for, and inform the meaning of the words complained about. When the entire context is considered, its contents do not support a finding that the Respondent made statements that were false or misleading about a workplace right. 

106.    In addition to the above, I would also add the following reasons:

(a)    it was submitted that two of the implied representations flowing from the Letter were as follows. First, that the Respondent could refuse to offer employment to a person who failed to give the undertaking not to exercise certain workplace rights. Second, that the Respondent could lawfully determine whether or not to offer employment to persons by reference to whether those persons were prepared to undertake not to exercise workplace rights. There is nothing in the Letter, either expressly or impliedly, that links a refusal to offer employment, or determining whether or not to offer employment, to the question of whether persons were prepared to give an undertaking not to exercise certain workplace rights. The language of the letter does not support such a conclusion.

(b)    There is not an implied representation that the Respondent could refuse to accept a person into the PICUS course or refuse to offer that person a command if they exercise their workplace right. The language of the letter does not support such a conclusion. The refusal to accept a person into PICUS or give them a command is squarely linked to a person who lacks integrity because they have broken ‘solemn undertakings’ given earlier. 

…

The grounds of appeal and the notice of contention

69    By its notice of appeal, the Federation challenges the primary judge’s rejection of its claims that REX had threatened to take adverse action, that REX had taken action with intent to coerce in contravention of s 343 of the FW Act, and that REX had made representations in contravention of s 345 of the FW Act. We will now summarise the grounds of appeal, and the submissions that were advanced on behalf of the Federation in support. By its notice of contention, REX seeks to have the primary judge’s orders affirmed on three grounds to which we will refer later.

The Federation’s submissions

Threat to take adverse action

70    The Federation challenged the primary judge’s finding that no threat of adverse action had been made by the Letter. In its written submissions on appeal, the Federation claimed that by the Letter REX threatened –

(a)    to refuse to employ any recipient who would not undertake to stay at the Academy and refrain from exercising their workplace right to appropriate accommodation (employment threat); and

(b)    any recipients who undertook to stay at the Academy that, if they subsequently exercised their workplace right to appropriate accommodation, they would not be offered training for, or hold, a position of command (sanction threat).

71    The Federation submitted that the primary judge erred in not accepting that the two threats referred to at [70] above were contained in the Letter. The Federation submitted that although the employment threat was not made in terms, it was implied, and that the clear implication of the Letter was that recipients would not be selected for a cadetship if they did not undertake to stay at the Academy. It was submitted that the primary judge erred by failing to consider the perspective of the recipients in construing the Letter, and that if the judge had stepped into the shoes of the recipients, the Letter was apt to be perceived as a threat not to accept their application unless they acceded to a “simple request” to forego their workplace right to stay at appropriate accommodation. The Federation submitted the threatened action would constitute adverse action under item 2(a) of the table in s 342(1) of the FW Act.

72    As to the sanction threat, the Federation submitted on appeal that this threat was made in express terms, as the Letter communicated REX’s intention to discriminate against recipients in relation to the terms or conditions on which employment would be offered, which would constitute adverse action under item 2(b) of the table in s 342(1) of the FW Act.

73    The Federation submitted that in construing the Letter, the primary judge erroneously considered that the Letter was simply “providing information and inviting a response”, whereas correctly construed, the threats in the Letter were intimidatory, and not informative. The Federation submitted that REX could not have contracted out of its obligations under the 2011 Agreement, and that REX was not entitled to determine whether to offer employment based on whether the recipients promised not to exercise their workplace right to appropriate accommodation. It was submitted that REX was not entitled to sanction an employee because they exercised a workplace right to stay at appropriate accommodation, even if they had promised not to exercise that right, and that such behaviour is proscribed by s 340 of the FW Act.

74    The Federation submitted that the primary judge’s reliance at J [59] on the Letter not requiring candidates to give any particular promise was erroneous. The Federation submitted that any choice to provide an undertaking to stay at the Academy was illusory, and simply rendered the sanction threat a conditional one. The Federation submitted that the primary judge erroneously concluded that the Letter was directed to extracting undertakings for the purpose of testing integrity, by focussing on the subjective intent of the author (J [63]-[67] set out at [66] above). The Federation submitted that it is not necessary that a person making a threat of adverse action has a particular motive, or actually intends to take the action threatened, and that Mr Howell’s subjective intention was irrelevant to the question whether the Letter constituted a threat.

75    The Federation submitted that, as a consequence of concluding that the Letter did not threaten adverse action, the primary judge failed to find that a reason for sending the Letter was because of a workplace right, or to prevent its exercise. The Federation relied on evidence of Mr Howell in cross-examination to which we will refer later, and submitted that Mr Howell acknowledged that the Letter was sent for a proscribed reason.

76    The Federation submitted that the circumstances leading to Mr Howell authoring the Letter reinforced that he was motivated to send the Letter to prevent the exercise of workplace rights, and did so for the purposes of saving the company money.

77    The Federation submitted that the primary judge had erred in proceeding on the basis that the presumption in s 361(1) of the FW Act did not apply to threats of adverse action. This submission requires some further explanation. It was accepted at trial by the Federation that the primary judge was likely to follow the decisions referred to by Tracey J in Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2017] FCA 1398 at [70], to which we referred at [63] above, which held that s 361 does not apply where the proscribed conduct extends no further than the making of a threat to take the relevant action. However, counsel for the Federation at trial submitted that these authorities were wrong, preserving the Federation’s position for the purposes of appeal. As we have mentioned, after the judgment below, in ABCC v Molina the Full Court held that s 361 applies to allegations of threats of action or organising action with intent to coerce that would contravene s 348, and it was submitted by the Federation that the Full Court’s reasoning would apply equally to a threat of taking adverse action that would contravene s 340.

Threat to take action with intent to coerce

78    The Federation submitted that the primary judge erred in holding that REX did not contravene s 343(1) of the FW Act. The Federation accepted that the words “intent to coerce” in s 343(1) require both an intention to negate choice, and the utilisation of means that are unlawful, illegitimate or unconscionable.

79    The Federation submitted that the primary judge erred in not finding that the threat of sanction contained in the Letter constituted a threat to take action against recipients who promised to stay at the Academy. The relevant action was stalling the career of such recipients (by refusing to accept them for training for, or allowing them to hold, a position of command) if they exercised their workplace right to stay in appropriate accommodation.

80    Second, the Federation submitted that the primary judge erred in not finding that, in making that threat, REX had an intention to negate the choice of those recipients to exercise their workplace right to stay in appropriate accommodation. In this respect, it was submitted that his Honour erred in holding that s 361(1) did not apply to a threat to take action, which is an issue to which we have already referred at [77] above. The Federation submitted that REX’s evidence did not displace the presumption in s 361(1), and submitted further the Federation had demonstrated that REX had the requisite intention. The Federation submitted that REX’s intention was to be assessed subjectively, by reference to Mr Howell’s intention, and that the evidence showed that Mr Howell intended to compel any recipient who promised to stay at the Academy to uphold that promise. The Federation submitted that the primary judge failed to address Mr Howell’s intention in sending the Letter, or his reasons for sending it, and instead at J [87]-[90] referred only to the terms of the Letter and the context in which it was sent.

81    Third, the Federation submitted that the primary judge erred at J [91]-[95] in finding that there was no unlawful or illegitimate means employed on the part of REX in sending the Letter. The Federation submitted that the means used by REX was the threat of sanction contained in the Letter, and that the threat was unlawful because it amounted to a threat of adverse action or misrepresentation, contrary to s 340(1) and s 345(1). It was submitted further that the threat was illegitimate for two reasons. The first reason was that its intended outcome, being an enforceable undertaking allowing REX to contract out of its obligations under the 2011 Agreement, was unlawful. The second reason was that the threat to stall the career of any recipient who refused to stay at the Academy, having promised to stay there, was disproportionate to REX’s stated aim of ensuring the integrity of its pilots.

Representations alleged to be in contravention of s 345

82    On appeal, the Federation submitted that, read fairly and in context, the Letter represented that REX could lawfully determine whether to offer employment, or lawfully refuse to offer employment, if the recipient did not promise to stay at the Academy. These representations were referred to in the Federation’s written submissions as “the employment representations”. The Federation submitted that, in the relevant context, a reasonable person in the position of the recipients would have understood the Letter to mean that they did not have a workplace right to stay at appropriate accommodation, or that, if they did not promise not to exercise that workplace right, REX was entitled to refuse to employ them.

83    The Federation further submitted on appeal that a reasonable person in the position of the recipients would have understood the Letter to mean that REX could lawfully sanction them, by refusing to accept them for training for, or refusing to allow them to hold a position of command, if, having promised to stay at the Academy, they later exercised the right to appropriate accommodation. These representations were referred to by the Federation as “the sanction representations”. The Federation submitted that the Letter represented, in terms, that REX could lawfully sanction any candidate who promised to stay at the Academy, and subsequently sought to break that promise, and that these representations were false or misleading.

84    In consequence, the Federation submitted that the primary judge erred in the following respects in his Honour’s consideration of the misrepresentation claims. First, it was submitted that the primary judge erred at J [100]-[106] in finding that the Letter did not contain false or misleading representations about workplace rights. The Federation submitted that his Honour had misapplied Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2015] FCAFC 25; 230 FCR 298 (BHP Coal), and had erred in relying on the fact that the Letter did not identify any workplace right. It was submitted that for a representation to be “about” a workplace right, it is not necessary that the workplace right be identified as such, or that its source be identified. It was submitted that in the present case, each of the representations was relevantly related to, and concerned with, the workplace right to stay at appropriate accommodation, or the effect of exercising that right. It was submitted by the Federation that the primary judge proceeded to reason at J [103]-[106] that the representations were not false or misleading, essentially on the basis that they were not made.

85    It was submitted that as a consequence of the primary judge’s conclusion that REX had not made false or misleading representations about workplace rights, his Honour did not consider and make findings as to whether REX made the representations “knowingly or recklessly”. In relation to this element of the claim, the Federation submitted that Mr Howell knew that: (a) REX was required to provide appropriate accommodation to pilots on layover from an approved list under the 2011 Agreement; (b) the approved accommodation for Wagga Wagga was the Mercure and the Townhouse Motel; (c) the Academy was not approved accommodation; (d) REX could not refuse to employ somebody who refused to give up their right to stay at appropriate accommodation; and (e) even if a person committed to staying at the Academy, they retained their entitlement under the 2011 Agreement to stay at appropriate accommodation, and REX had no right to deny them training for, or entry into, a command role if they sought to exercise that right. It was submitted that accordingly, Mr Howell knew that the representations were false or misleading, or was recklessly indifferent as to their truth.

The submissions of REX in response

Responses to the grounds of appeal

86    The response of REX to the grounds of appeal included several matters raised by its notice of contention, to which we will refer below. By the notice of contention REX challenged the appellant’s standing to bring the proceeding, and whether in bringing the proceeding below the Federation had acted in accordance with its own rules. REX advanced a further complaint that the primary judge had permitted the Federation to depart at trial from its pleaded case.

Threat to take adverse action

87    REX submitted that there was no error in the primary judge’s findings that the Letter did not convey any threat of adverse action. REX submitted that the primary judge had correctly focussed on the terms of the Letter, and had correctly found that the Letter was providing information and inviting a response. In its submissions, REX directed attention to a distinction between a threat on the one hand, and idle abuse, warnings, advice, and the provision of information on the other. REX submitted that an actionable threat must contain a demand on the recipient as to their workplace rights, and submitted that the demand must be coupled with a statement that, if the demand is not complied with, the adverse action will be taken against them. REX submitted that the Letter did not meet these requirements, and that a communication that outlined unspecified outcomes, by reference to existing or prospective circumstances, was not a threat of the requisite kind.

88    In response to the Federation’s submissions on appeal that Mr Howell had sent the Letter because of a workplace right, and in order to prevent the exercise of workplace rights, REX submitted that there was no error in the primary judge’s conclusions at J [63]-[67] (see [66] above) rejecting those claims. REX submitted that the primary judge had the benefit of seeing Mr Howell give evidence, and that a real review of the evidence showed that the evidence of Mr Howell was mixed, and that it was not appropriate to review his evidence in a piecemeal way. REX submitted that the primary judge’s conclusions at J [67] were not glaringly improbable, or contradicted by uncontested testimony, or contrary to compelling inferences, citing Fox v Percy [2003] HCA 22; 214 CLR 118.

Threat to take action with intent to coerce

89    REX submitted as preliminary matters that no particular intent to coerce had been pleaded by the Federation, and that no intention to negate choice, and no unlawful or illegitimate means had been pleaded. REX also relied on its submissions that there was no threatened adverse action contained in the Letter and submitted that likewise the Letter did not convey the threats that the Federation alleged at [45] of its further amended claim (see [46] above). REX submitted that there was no error shown in the primary judge’s findings at J [87]-[89], which we have set out at [67] above, relating to intention to negate choice. REX submitted that the primary judge addressed Mr Howell’s intent by incorporating his earlier analysis, where at J [63]-[67] his Honour came to a positive conclusion that Mr Howell’s intent was to procure solemn promises from recipients as a means of testing integrity. REX submitted, as it had earlier, that the Full Court should not interfere with those findings, as they were not glaringly improbable, or contradicted by uncontested testimony or compelling inferences.

90    REX submitted that there was no error in the primary judge’s conclusions at J [91]-[95] that Mr Howell did not use unlawful or illegitimate means. The rejection of the adverse action claim had the result that the unlawful means that had been pleaded was not established. Otherwise, there was no error in the primary judge’s rejection of the arguments that Mr Howell had used illegitimate or unconscionable means.

Representations alleged to be in contravention of s 345

91    We have referred to the representations alleged in the Federation’s further amended claim at [50] above, and the claims made in its written opening at [51] above. In addition to the pleading objections, which we will address below, REX submitted on appeal that the primary judge was correct to find that the Letter was not about a workplace right. REX submitted that the representations alleged in the Federation’s further amended claim were not conveyed by the Letter, and submitted that a cadet’s workplace right was not identified in the Letter, still less falsely represented.

The evidentiary presumption in s 361 of the FW Act

92    As for the Federation’s reliance on the evidentiary presumption in s 361(1) of the FW Act in relation to the claims for contravention of s 340 and s 343, REX accepted that as a result of the Full Court’s decision in ABCC v Molina, s 361 governed the trial. REX accepted that the relevant analysis in Molina was not plainly wrong, and applied by analogy. However, REX submitted that s 361 was a moot point, because it was clear from the primary judge’s reasoning that his Honour was not motivated by either party’s onus of proof, wherever it lay.

Notice of contention

93    REX’s response to the submissions advanced by the Federation on appeal also included reliance on its notice of contention which raised the following grounds on which it contended the primary judge’s decision should be affirmed –

1.    The learned trial judge failed to consider, and failed to find, that there was no affected person for the purposes of section 540(6) of the Fair Work Act 2009 (Cth) (FW Act). Therefrom, the learned trial judge failed to consider, and failed to find, that the court lacked jurisdiction to entertain the proceeding.

2.    The learned trial judge failed to consider, and failed to find, that the Applicant’s failure to comply with its rules of association when deciding to commence and continue the proceeding constituted an abuse of process. Therefrom, the learned judge failed to dismiss the proceeding.

3.    The learned trial judge erred in deciding the alleged contraventions of Part 3-1 of the FW Act on a different basis from that disclosed by the Applicant’s pleading.

94    In relation to the first contention, REX submitted that the Federation had failed to “bring with it” a cadet who was a “person affected” by the alleged contraventions so as to engage the standing provisions in s 540(6) of the FW Act. REX submitted that the Federation’s standing was essential to the jurisdiction of the court below, and of this court on appeal. REX submitted that the evidence at trial did not support a claim that there was a person entitled to membership of the Federation who was affected by the alleged contraventions. That was because the only one of the three cadets who gave evidence, Mr Manna, stated in his affidavit that he thought the issue about accommodation was a petty issue, and that if he had the opportunity to stay in Wagga Wagga overnight, he would stay at the Academy. In oral submissions, senior counsel for REX submitted that the Federation had to show, for instance, that one of the cadets actually understood or perceived the Letter as a threat, and that more was required than the mere receipt of the Letter. Counsel submitted that a threat alleged to arise from implication that escapes the mind of the recipient is not a threat, and a recipient of the Letter would not be affected by it if it is not perceived as a threat.

95    In relation to the second contention, REX had submitted to the primary judge that the Federation had commenced and continued the proceeding absent necessary decisions or resolutions of the Federation. This contention turned on the terms of the rules of the Federation, and upon an admission made by the Federation at trial that there were no documents to produce in response to the notice to produce to which we referred earlier at [58].

96    In relation to the third contention, REX submitted that the Federation materially departed from its further amended claim at trial, and that it continued to do so on appeal. REX submitted that the primary judge was in error in permitting this course. REX submitted that the Federation had invoked the rules of pleading in its further amended claim, and that REX had also abided by the rules of pleading in its further amended response. REX relied on the fact that the Federation then filed a reply that was in accordance with the pleading rules of the Federal Court of Australia, and in accordance with the appropriate form. REX submitted that it was only on the mutual exchange of submissions on 4 July 2019 that REX learnt that the Federation wished to pursue a different case. REX submitted that it had proceeded to hold the Federation to its case throughout the trial, and that there had been no deliberate acquiescence in the Federation’s new case.

The Federation’s response to the notice of contention

97    The Federation’s responses to the contentions raised by REX are summarised as follows.

98    In relation to the first contention, the Federation submitted that the persons affected by the alleged contraventions were the recipients of the Letter, being those against whom adverse action was threatened (s 340(1)), those against whom action was threatened with intent to coerce (s 343(1)), and those to whom false or misleading representations were made (s 345(1)). The Federation submitted that it was not required to lead evidence that any of the recipients was affected in some subjective sense, or of some subjective grievance.

99    In relation to the second contention, the Federation disputed that compliance with those of its rules relied on by REX were preconditions to the commencement and maintenance of the proceeding. The Federation submitted that REX bore the onus of showing that the Federation had not complied with its rules. The Federation further submitted that REX’s argument incorrectly assumed that the Federation can only commence a proceeding on behalf of an existing member, and submitted that consistently with its objects, the Federation was entitled under its rules to represent the interests of persons who are not presently, but are eligible to become, members. The Federation submitted that it followed that application for membership, and ratification or approval under its relevant rules, were not preconditions to the Federation commencing the proceeding.

100    In the alternative, the Federation submitted that REX was precluded by s 320(1) of the RO Act from contending that the Federation did not comply with its rules in commencing the proceeding. Section 320(1) provides as follows –

Validation of certain acts after 4 years

(1)    Subject to this section and section 321, after the end of 4 years from: 

(a)    the doing of an act: 

(i)    by, or by persons purporting to act as, a collective body of an organisation or branch of an organisation and purporting to exercise power conferred by or under the rules of the organisation or branch; or 

(ii)    by a person holding or purporting to hold an office or position in an organisation or branch and purporting to exercise power conferred by or under the rules of the organisation or branch; or 

(b)    the election or purported election, or the appointment or purported appointment of a person, to an office or position in an organisation or branch; or 

(c)    the making or purported making, or the alteration or purported alteration, of a rule of an organisation or branch; 

the act, election or purported election, appointment or purported appointment, or the making or purported making or alteration or purported alteration of the rule, is taken to have been done in compliance with the rules of the organisation or branch. 

101    Section 321, to which s 320(1) is expressed to be subject, provides as follows –

Order affecting application of section 319 or 320

(1)    Where, on an application for an order under this section, the Federal Court is satisfied that the application of section 319 or 320 in relation to an act would do substantial injustice, having regard to the interests of: 

(a)    the organisation; or 

(b)    members or creditors of the organisation; or 

(c)    persons having dealings with the organisation; 

the Court must, by order, declare accordingly. 

(2)    Where a declaration is made under subsection (1), section 319 or 320, as the case requires, does not apply, and is taken never to have applied, in relation to the act specified in the declaration. 

(3)    The Court may make an order under subsection (1) on the application of the organisation, a member of the organisation or any other person having a sufficient interest in relation to the organisation. 

(4)    The Court may determine: 

(a)    what notice, summons or rule to show cause is to be given to other persons of the intention to make an application or an order under this section; and 

(b)    whether and how the notice, summons or rule should be given or served and whether it should be advertised in any newspaper. 

  (5)    In this section: 

act includes an election or purported election, appointment or purported appointment, and the making or purported making or alteration or purported alteration of a rule.

102    The Federation submitted that because it had commenced the proceeding in April 2015, which was more than four years ago, the proceeding was taken to have been commenced in compliance with the Federation’s rules.

103    As to the contention by REX that the Federation was bound by the case that it had pleaded, the Federation submitted that the Federal Circuit Court was not a court of pleadings, and that its claim had not been commenced by a statement of claim but by a “Form 4” as required by r 45.08 of the Federal Circuit Court Rules 2001 (Cth). The Federation supported the primary judge’s reasoning at J [22]-[31] that an applicant will not necessarily be bound by the contents of a Form 4, and that the issue was one of procedural fairness, which for the reasons given by the primary judge had been afforded to REX.

Interlocutory application by REX

104    The Federation’s reliance on s 320(1) of the RO Act provoked an application by REX to the Full Court by an interlocutory application lodged on 17 November 2020, and made returnable before the Full Court at the hearing on 24 November 2020. By that application, the Federation sought the following order –

Pursuant to section 321(1) of the Fair Work (Registered Organisations) Act 2009 (Cth) (FWRO Act), a declaration that the application of section 320 of the FWRO Act in relation to the Appellant’s purported act of deciding to commence proceeding MLG788/2015 does substantial injustice to the Respondent.

105    The application by REX under s 321 of the RO Act gives rise to a question as to the Full Court’s power to hear it having regard to the terms of s 20(1) of the Federal Court of Australia Act 1976 (Cth), which provides that original jurisdiction shall be exercised by a single judge. One exception is provided for in s 20(1A), which permits the Chief Justice to direct that original jurisdiction should be exercised by a Full Court where the Chief Justice considers the matter to be of sufficient importance to justify the direction. At the hearing of the appeal the parties accepted that the court did not need to rule upon the question, and should reserve on the question of power together with the other issues raised on appeal.

The issues arising on the appeal

106    The summaries of the parties’ cases demonstrate that there are a number of issues that arise on this appeal. In logical order, the issues are as follows –

(1)    To what extent was the Federation bound by the allegations made in its further amended claim and its reply below?

(2)    Was the primary judge in error in holding that the evidentiary presumption in s 361 of the FW Act did not apply to threats of action and intent to coerce if the presumption was engaged?

(3)    Did the primary judge err in his Honour’s rejection of the Federation’s claim that REX had contravened s 340 of the FW Act by threatening to take adverse action?

(4)    Did the primary judge err in his Honour’s rejection of the Federation’s claim that REX had contravened s 343 of the FW Act by threatening to take action with intent to coerce?

(5)    Did the primary judge err in his Honour’s rejection of the Federation’s claim that REX had contravened s 345 of the FW Act by knowingly or recklessly making false or misleading statements?

(6)    Did the Federation have standing to bring the proceeding?

(7)    Was the proceeding brought by the Federation in accordance with its rules, and if not, what are the consequences?

(8)    Does this court have jurisdiction to entertain REX’s interlocutory application for orders under s 321(1) of the RO Act?

Consideration

107    We will now consider the issues in turn.

(1)    To what extent was the Federation bound by the allegations made in its further amended claim and its reply below?

108    The submissions advanced on behalf of REX concerning the state of the written claims before the court below are relevant to several issues. The main issues concern: (1) whether in relation to the claims of contravention of s 340 and 343 of the FW Act the Federation made allegations in the proceeding which engaged the rebuttable evidentiary presumption in s 361 of the FW Act on which the Federation sought to rely; and (2) whether the primary judge erred in permitting the Federation to depart from the basis for its claims, and in particular the claim that REX contravened s 345 of the FW Act by knowingly or recklessly making false or misleading representations.

109    Jurisdiction was conferred on the Federal Circuit Court of Australia in relation to the Federation’s claims by s 566 of the FW Act. Section 567 of the FW Act provided that the jurisdiction was to be exercised in the Fair Work Division of the Federal Circuit Court if, inter alia, “an application is made to the Federal Circuit Court under this Act”. Section 551 of the FW Act provided that a court must apply the rules of evidence and procedure for civil matters when hearing proceedings relating to a contravention, or proposed contravention, of a civil remedy provision.

110    At the time the proceeding was commenced in the Federal Circuit Court, the relevant legislation governing its procedure was the Federal Circuit Court of Australia Act 1999 (Cth) and the Federal Circuit Court Rules 2001 (Cth). The Act, which was also the enabling legislation for the Rules, was repealed effective 1 September 2021 by the Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Act 2021 (Cth).

111    Section 3(2) of the Federal Circuit Court of Australia Act included the following as objects of the Act –

(a)    to enable the Federal Circuit Court of Australia to operate as informally as possible in the exercise of judicial power; and

(b)    to enable the Federal Circuit Court of Australia to use streamlined procedures; and

(c)    to encourage the use of a range of appropriate dispute resolution processes.

112    Section 10A of the Federal Circuit Court of Australia Act provided for two Divisions of the Federal Circuit Court: the General Division; and the Fair Work Division. In relation to the Fair Work Division, s 10A(3) provided as follows –

Fair Work Division

(3)    The following jurisdiction of the Federal Circuit Court of Australia is to be exercised in the Fair Work Division:

(a)    jurisdiction that is required by any other Act to be exercised in the Fair Work Division;

(b)    jurisdiction that is incidental to such jurisdiction.

Note:    Under section 566 of the Fair Work Act 2009, jurisdiction is required to be exercised in the Fair Work Division of the Federal Circuit Court of Australia in relation to matters arising under that Act.

113    Section 50(1) of the Federal Circuit Court of Australia Act provided for the commencement of proceedings by way of application without the need for pleadings –

50    Proceedings may be instituted by application

(1)    Proceedings may be instituted in the Federal Circuit Court of Australia by way of application without the need for pleadings.

(2)    Subsection (1) has effect subject to the Rules of Court.

114    Part 45 of the Federal Circuit Court Rules applied to proceedings in the Court to which the FW Act applied: r 45.03. In addition, Chapters 1 and 3 of the Rules applied to proceedings to which the FW Act applied to the extent that they were relevant and were not inconsistent with Chapter 7. Within Chapter 1 of the Rules were r 4.01 and r 4.02, which provided –

4.01    Application

(1)    Unless otherwise provided in these Rules, a proceeding must be started by filing an application in accordance with the approved form.

…

4.02    Content of application

An application must precisely and briefly state the orders sought and (if the application is for a general federal law proceeding) the basis on which the orders are sought.

115    Rule 45.08 of the Rules made provision for applications alleging contraventions of the general protection provisions in Part 3-1 of the FW Act –

45.08    Application in relation to other alleged contraventions of Fair Work Act general protections

An application for an order in relation to an alleged contravention, or an alleged proposed contravention, of a general protection mentioned in Part 3-1 of the Fair Work Act other than that mentioned in rule 45.06 must:

(a)    be in accordance with the approved form; and

(b)    be accompanied by a claim in accordance with the approved form.

Note 1:    Sections 545 and 546 of the Fair Work Act state the orders the Court may make.

Note 2:    Part 4 of Chapter 1 sets out the general rules concerning how to start proceedings.

Note 3:    An application filed under this rule need not be accompanied by an affidavit, statement of claim or points of claim in accordance with rule 4.05.

116    Rule 45.06 which is referred to in the above rule related to dismissal from employment in contravention of a general protection provision, and is not relevant.

117    Rules 4.01 and 45.08 referred to the “approved form”. This term was defined in the Dictionary to the Rules as –

approved form, for a provision of these Rules, means a form approved by the Chief Judge under subrule 2.04(1A) for the provision.

118    Rule 2.04, referred to in the definition of “approved form”, relevantly provided –

2.04    Forms

(1A)    The Chief Judge may approve a form for a provision of these Rules.

…

(1)    Unless the Court otherwise orders, strict compliance with forms is not required and substantial compliance is sufficient.

…

119    The Form 4 containing the Federation’s further amended claim has the appearance of a court-approved form. Part G of the form was titled “Contravention(s) alleged”. In the left margin the following text appeared –

19.    What are the grounds for the claim that adverse action against the applicant has been taken, threatened or organised contrary to the Fair Work Act?

(Set out in numbered paragraphs the facts relied on and the provisions of the Fair Work Act relevant to the claim)

1.    Specify the ‘adverse action’

2.    If relying on s 340 specify the workplace right

3.    If relying on s 351 specify the attribute in s 351(1)

120    The purposes of pleadings are well-known. They include giving the opposing party notice of the issues that are in dispute, and identifying the issues for adjudication at trial. It is frequently the case that allegations in a pleading are capable of both further refinement and greater generalisation. Whether an allegation in a pleading is adequate is therefore often a question of fact and degree, and involves considerations of practical justice: Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135 at 137 (Gleeson CJ).

121    Section 50 of the Federal Circuit Court Act provided that an application to the court could be brought without pleadings. The court could order that the proceeding continue on pleadings, but no order for pleadings was made in this case. The claims and responses that the parties filed evolved as their cases developed. The initial Form 4 filed by the Federation set out the allegations in a manner that approached the form of a pleading, because the Form required numbered paragraphs. Although the initial response that was filed on behalf of REX did not take on the appearance of a conventional pleading, later documents did. The reply filed on behalf of the Federation cited r 16.33 of the Federal Court Rules, which was picked up by r 1.05(3)(b) of the Federal Circuit Court Rules. However, we do not think much turns on that feature of the reply.

122    Although there was no order made for pleadings, the Federation was required by r 4.02 of the Federal Circuit Court Rules to state precisely and briefly the orders that were sought, and the basis for which the orders were sought, and r 45.08 required that the claim be made in accordance with the approved form. The Federation’s further amended claim was structured and detailed, and extended to 47 numbered paragraphs. There was nothing preventing the Federation from alleging in its further amended claim any facts that were necessary to engage any evidentiary presumptions in s 361 of the FW Act, if they were to form part of the basis for its claims. And the fact that the claims and the responses, and the reply reached a particular level of refinement is relevant to identifying at a practical level what allegations were made in the application, and on what issues the parties joined. However, it was always the case that pleadings were not required by the Rules, and that no order for pleadings was made.

123    We agree with the primary judge’s assessment at J [26] that the relevant question raised by the submissions of counsel for REX was not whether the documents filed by the parties were pleadings or not, but whether REX was denied procedural fairness. The primary judge’s focus on procedural fairness was in accordance with observations of Gordon J in Sterling Commerce (Australia) Pty Ltd v Iliff [2008] FCA 702; 173 IR 378, which was an appeal from a decision of the Federal Magistrates Court of Australia in a proceeding where there were no pleadings. At [23] her Honour stated (inter alia) –

… a party to proceedings in the Federal Magistrates Court must be put on notice of the case against it and have an opportunity to respond. … It is a fundamental principle of justice that a Court must not determine an issue that is not raised by the pleadings, or in the evidence or submissions before it.

124    There is also a further issue, which is whether the Federation in its application made allegations that engaged s 361 of the FW Act, and if so, what those allegations were. That is an important issue, because the content of such allegations would frame any rebuttable evidentiary presumptions that arose.

125    The primary judge held at J [27] that there were respects in which the case that the Federation advanced at trial was different from the case disclosed in its Form 4 further amended claim. We agree with that assessment, and we also agree that the clearest example was the claim that REX had contravened s 345 of the FW Act by knowingly or recklessly making false representations about workplace rights. On appeal, the representations that were alleged by the Federation to have been conveyed by the Letter were re-cast yet again. It might be said that there were some similarities between the different ways in which the Federation advanced its claim that s 345 had been contravened, but in this context words are important. An allegation of a contravention of s 345 is a serious allegation, and for the following reasons, the shifting terms of the Federation’s allegations involved no mere pleading nicety, but were significant to the fair conduct of the trial.

126    In order to engage s 345 of the FW Act it must be shown that a false or misleading representation was made “knowingly or recklessly”. The state of mind required by s 345(1) attaches to the false or misleading quality of the representation, not the act of the making of the representation. What is required is that a false or misleading statement is made knowing it to be false, or being recklessly indifferent as to its truth: BHP Coal at [161]. An allegation that REX made statements knowing them to be false invokes the idea that is expressed in the tort of deceit: Forrest v Australian Securities and Investments Commission [2012] HCA 39; 247 CLR 486 (Forrest v ASIC) at [22] (French CJ, Gummow, Hayne and Kiefel JJ); see also, Banditt v The Queen [2005] HCA 80; 224 CLR 262 at [1]-[3] (Gummow, Hayne and Heydon JJ) in relation to the term “reckless”. Returning to Forrest v ASIC, at [26] their Honours stated –

It is fundamental, and long established, that if a case of fraud is to be mounted, it should be pleaded specifically and with particularity. A pleading of fraud will necessarily focus attention upon what it was that the person making the statement intended to convey by its making. And the pleading must make plain that it is alleged that the person who made the statement knew it to be true or false or was careless as to its truth or falsity.

127    The questions raised by the Federation’s claim that REX contravened s 345 of the FW Act directed attention to whether the Letter conveyed the alleged representations, whether those representations were about workplace rights, and what REX intended to convey by the Letter. In these circumstances, to permit the Federation to depart from the basis on which the orders that it sought had been alleged with some precision in its further amended claim by relying on different representations in its written opening, was liable to cause prejudice to REX, and at least some forensic disadvantage. The forensic disadvantage was liable to arise because REX had prepared its affidavit evidence-in-chief well prior to the service of the Federation’s written opening.

128    Upon counsel for REX objecting to the Federation departing from the case that had been advanced in its further amended claim, it would have been open to the primary judge to determine whether an amendment was necessary, to invite the Federation to apply for leave to amend its claim and, and if so, to determine whether it should be permitted: see, Water Board v Moustakas [1988] HCA 12; 180 CLR 491 at 497 (Mason CJ, Wilson, Brennan and Dawson JJ), citing Leotta v Public Transport Commission (NSW) (1976) 9 ALR 437 at 446 (Stephen, Mason and Jacobs JJ). Upon hearing such an application, it was otherwise open to the primary judge to rule upon what case the court would permit the Federation to advance, and to evaluate the question of prejudice at that point. The primary judge did not take that course, but left the resolution of the objections that were raised until his Honour’s reasons for judgment. There are no hard and fast rules, but where there are serious allegations advanced that include some that are tantamount to fraud, it is usually desirable that there be some certainty as to the basis on which the trial is to be conducted: see the observations of the Full Court in ABCC v Hall at [50] (Tracey, Reeves and Bromwich JJ).

129    The primary judge held in his reasons for judgment after the hearing at J [28] that REX was not denied procedural fairness, and at that point permitted the Federation to pursue the case that was outlined in its opening. The principal reason was, as his Honour held at J [30], that in the circumstances REX suffered no material loss of opportunity to meet the case that had been advanced by the Federation in its opening. The primary judge was likely better placed than this court to make that evaluation, and therefore we afford some weight to the primary judge’s views. However, we observe that while decision-makers commonly express their reasons sequentially, they often review the whole case before writing anything: Re Minister for Immigration and Multicultural Affairs; ex parte Applicant S20/2002 [2003] HCA 30; 198 ALR 59 at [14] (Gleeson CJ). We cannot help but think that the primary judge’s conclusions on the question of prejudice might have been influenced by his Honour’s rejection of the Federation’s claims. Further, because the parties accepted at trial that his Honour was bound by authority not to consider any evidentiary presumptions that arose under s 361 of the FW Act, his Honour had no occasion to consider whether any allegations engaged s 361, and if so, the content of those allegations where there was some difference between the Federation’s pleaded case, and its written opening. In our view, it would have been preferable for his Honour to rule at the outset of the hearing upon REX’s objections to the Federation’s case as opened.

130    We need not consider further the question whether there was any error by the primary judge in permitting the Federation to depart from the case it had alleged in its further amended claim in relation to the alleged contravention of s 345 of the FW Act. That is because for the reasons we give later, we agree with the primary judge’s conclusion that the Letter did not convey any false or misleading representations about workplace rights in any of the ways alleged by the Federation.

131    This brings us to the question whether s 361 of the FW Act was engaged in relation to the claims of threats to take adverse action (s 340 and s 342) and action with intent to coerce (s 343). Ordinarily, an applicant bears the onus of proving each element of an alleged contravention of a statutory norm. However, s 361 to which we referred at [29] above has the effect, if its conditions are engaged, that the burden of proof of those facts which are subject to the provision rests on the person against whom the allegation is made: Esso Australia Pty Ltd v Australian Workers’ Union [2017] HCA 54; 263 CLR 551 (Esso v AWU) at [58] (Kiefel CJ, Keane, Nettle and Edelman JJ). When engaged, s 361 applies both to an allegation of a particular reason for which action was taken, and an allegation that action was taken with a particular intent. In that respect, in ABCC v Hall the Full Court at [24] approved the following statement of Bromberg J in Construction, Forestry, Mining and Energy Union v McCorkell Constructions Pty Ltd (No 2) [2013] FCA 446; 232 IR 290 at [230] relating to an alleged contravention of s 343 –

230    Section 343(1) is a provision which, in the words of s 361, depends upon action taken “for a particular reason or with a particular intent”. The intent which s 343(1) deals with has two aspects. The first aspect is addressing the nature or character of the intent. The particular intent required is an intent to coerce. The second aspect of the requisite intent is addressing the purpose or reason of the action taken. The purpose or reason for the taking of the action must be to have the other person (or third person) do or not do one of those things specified by paras (a) and (b) of s 343(1). The first aspect may be characterised as a “particular intent” and the second as a “particular reason” within the meaning of those terms in s 361(1).

132    Before s 361(1) of the FW Act is engaged, the particular reason or the particular intent must be alleged in the application. In ABCC v Hall, the Full Court discussed at [13]-[15] what has to be alleged in the following passages that were cited with approval by the Full Court in Auimatagi v Australian Building and Construction Commissioner [2018] FCAFC 191; 267 FCR 268 (Auimatagi v ABCC) at [136]-[139] –

13    Stated compendiously, s 361(1) places an onus or burden on a person involved in a proceeding relating to a contravention of Part 3-1 of the FWA to “prove otherwise” than that he or she took the contravening action for the particular reason, or with the particular intent, alleged in the applicant’s application. The consequence of a failure to discharge this burden is that it is presumed against the person concerned that the contravening action was taken for that particular reason or with that particular intent. Before this presumption operates, however, two pre-conditions must be met. First, under s 361(1)(a) the particular reason or the particular intent for the contravening action must be alleged in the application. It is with respect to that alleged reason or that alleged intent that the person concerned must prove otherwise. The word “particular” in s 361(1)(a) must be given its ordinary and natural meaning. Relevantly, that is: “2. being a definite one, individual, or single, or considered separately: each particular item. 3. distinguished or different from others or from the ordinary; noteworthy; marked; unusual. ... 6. dealing with or giving details, as an account, description, etc., of a person; detailed; minute; circumstantial”. See Susan Butler (ed), Macquarie Dictionary (Pan Macmillan, 7th ed, 2017) vol 2, 1096.

14    It follows that an allegation under s 361(1)(a) must precisely and distinctly identify the alleged reason, or the alleged intent, for the contravening conduct. This need for care and precision in making the allegations in connection with which the presumption may operate is similar to that required with respect to the analogous situation of averments in criminal prosecutions (see Gallagher v Cendak [1988] VR 731 at 738–739 (Vincent J) and JD Heydon, Cross on Evidence (LexisNexis Butterworths, 11th ed, 2017) at [7105]). In Part 3-1 of the FWA, it is also heightened by the provisions of s 360. That section, when read with s 361(1)(a), requires a person who is alleged to have taken a contravening action to establish that the particular reason for which it is alleged that person took that action is not included among any of the reasons for which he or she took that action. It is important to note that, in contrast to s 361, s 360 only applies to a “particular reason” and it does not extend to a “particular intent”, both of which are covered by s 361. Section 360 therefore only applies to the “particular reason” component of s 361.

15    The second pre-condition which must exist for the presumption in s 361(1) to operate is of equal importance in this matter. It is the requirement in s 361(1)(b) that “taking that action for that reason or with that intent would constitute a contravention of this Part”. This precondition therefore requires more than an allegation with respect to an action, reason or intent. Additionally, it requires that taking the alleged action, for the alleged reason or with the alleged intent (or both), “would constitute a contravention of that Part”.

133    In relation to a proceeding conducted on pleadings, the Full Court in ABCC v Hall held at [19] –

19    Having regard to these observations and, in particular, to the provisions of s 361(1)(b), we consider that an applicant wishing to take advantage of the presumption in s 361, in addition to making the allegation in a form that meets the requirements of s 361(1)(a), must provide sufficient information about the action, and the related reason or intent (or both) for which that action was taken, to show that, in combination, they would constitute a contravention of a provision of Pt 3-1 of the FWA. This means that, in a proceeding such as the present one, which was conducted on pleadings, an applicant is required to plead in his or her statement of claim all the material facts concerning the contraventions alleged against the respondent. As French J said in Kernel Holdings Pty Ltd v Rothmans of Pall Mall (Australia) Pty Ltd (1991) 217 ALR 171 at 173, “[a] material fact is one which is necessary to formulate a complete cause of action. … Material facts must be pleaded with the degree of specificity necessary to define the issues and inform the parties in advance of the case they have to meet.”