FEDERAL COURT OF AUSTRALIA

Construction, Forestry, Mining and Energy Union v Hail Creek Coal Pty Ltd [2016] FCA 199

ORDERS

THE COURT DECLARES THAT:

1.    The respondent contravened s 340 of the Fair Work Act 2009 (Cth) by standing down Mr Michael Haylett on 19 November 2013, and keeping him stood down until the date of judgment, because he had commenced proceeding D403/2012 in the District Court of Queensland against the respondent pursuant to Chapter 5 of the Workers’ Compensation and Rehabilitation Act 2003 (Qld) on 13 December 2012.

2.    The respondent contravened s 50 of the Fair Work Act 2009 (Cth) by failing to pay Mr Michael Haylett wages from 18 March 2014 to the date of judgment, contrary to clauses 7.1 and 7.6 of the Hail Creek Agreement 2011.

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

EX TEMPORE REASONS FOR JUDGMENT

REEVES J:

Introduction

1    This matter has a remarkable history of resilience on the part of Mr Haylett and what can only be described as recalcitrance on the part of Hail Creek Coal Pty Ltd, a company within the Rio Tinto Group. It has its genesis in a spinal injury Mr Haylett sustained in mid-2009, while working for Hail Creek Coal.

2    In the ensuing 12 months or so, Mr Haylett had a discectomy and spinal fusion at the C6-7 level and eventually returned to work on light duties in October 2010. After briefly attempting other duties, he was trained as a drill rig operator, a position which required Hail Creek Coal to make some special accommodation in order that he could fill it. Before his injury, he had competencies to work as an operator on a wide range of equipment, including graders, dozers, cable tractors and dump trucks.

Mr Haylett is stood down

3    Mr Haylett continued to work as a drill rig operator over the next three years, that is from late 2010 until late 2013. Then two events occurred that set off the remarkable history to which I have referred. First, on Friday, 15 November 2013, Mr Haylett was awarded approximately $637,000 in common law damages by Baulch J in the District Court of Queensland at Brisbane. The future economic loss component of that award was calculated on the assumption that Mr Haylett would continue working with Hail Creek Coal in his current role as a drill rig operator. His Honour placed some significance on the fact that Mr Haylett “has acquired a new skill as a result of having been retrained” by Hail Creek Coal. This was an obvious reference to his work as a drill rig operator, about which Mr Terry of Hail Creek Coal had given evidence at the trial before his Honour.

4    Secondly, on Monday, 18 November 2013, Mr Haylett undertook a pre-arranged five-yearly medical assessment under the provisions of the Coal Mining Safety and Health Act 1999 (Qld) (the CMSH Act). That assessment was partly conducted by a Dr Parker. He completed a form prescribed under the Coal Mining Safety and Health Regulation 2001 (Qld) (the CMSH Regulations) in which he opined that Mr Haylett was unfit to undertake his current position, which was described in the form as “operator”:

… due to a significant and foreseeable risk of further injury or aggravation of medical condition which prevents him from performing the occupational demands of the role.

5    Based on that opinion, Hail Creek Coal stood Mr Haylett down from performing any further duties with effect from the next day, 19 November 2013. That decision was made by Mr Priestly, Hail Creek Coal’s mine manager. He was made aware of Dr Parker’s opinion by an email he received from Ms Robinson, a Physiotherapist, Health and Injury Management Advisor at Hail Creek Coal, at some time after 4.33 pm on 19 November 2013. He said in his evidence that the “primary and only” reason for that decision was that Mr Haylett was someone who did not have a current health assessment under the CMSH Regulations and was not, therefore, able to participate in work at a coal mine.

The Queensland Supreme Court proceedings

6    In early 2014, Mr Haylett challenged the validity of Dr Parker’s assessment in the Queensland Supreme Court. In August 2014, he obtained a ruling in his favour from Philip McMurdo J to the effect that the assessment was not a valid assessment for the purposes of the CMSH Regulations. In the meantime, in March/April 2014, Hail Creek Coal ceased paying Mr Haylett’s wages, claiming that he had exhausted his sick leave and annual leave entitlements. Since then, Hail Creek Coal has treated him as being on leave without pay.

7    After this first Supreme Court judgment, rather than reverse its decision to stand Mr Haylett down, as it was requested to do by his lawyers, Hail Creek Coal arranged to obtain a further assessment under the CMSH Regulations from Dr Parker. Consequently, on 23 September 2014, Dr Parker produced an assessment form which had a cross in the box beside the statement “Is fit to undertake proposed/current position, subject to the following restrictions.” Beneath that statement, the restrictions were listed as: “unfit for heavy or continuous jarring and vibration”; “unfit for working above shoulder height”; and “unfit for heavy haul trucks or dozers”. However, the form stated he was assessed as: “fit for drill rig operation”.

8    Dissatisfied with that assessment, Mr Lawler of Hail Creek Coal telephoned Dr Parker and prevailed upon him to issue another assessment form. It contained essentially the same information, but it had a cross beside a different box. The statement beside that box was: “Is not fit to undertake proposed/current position, because of the following restrictions”. The same restrictions as above were then listed.

9    Dr Parker said in his evidence that this second assessment form was prepared and dated 30 September 2014. I made a number of observations during the trial of this matter about the inappropriateness of Mr Lawler’s approach to Dr Parker to have him change his first certificate. I need say no more about that subject in these reasons.

10    Based on this second assessment form, Hail Creek Coal maintained its earlier decisions to stand down Mr Haylett and cease paying him any wages. Again, Mr Haylett challenged this assessment form in the Queensland Supreme Court. Again he was successful. On 25 November 2014, Dalton J ruled that the assessment form of 30 September 2014 was not valid in accordance with the CMSH Regulations.

11    Still not daunted, and again refusing a request from Mr Haylett’s lawyers to reverse its earlier decision, Hail Creek Coal appealed that judgment to the Queensland Court of Appeal. For his part, Mr Haylett cross-appealed, seeking a declaration that the first assessment form, the one dated 23 September 2014, was a valid assessment.

12    Yet again, Mr Haylett was successful. In early December 2015, the Queensland Court of Appeal dismissed Hail Creek Coal’s appeal and upheld Mr Haylett’s cross-appeal. Mr Haylett’s success on his cross-appeal was reflected in the following declaration made by the Court of Appeal:

It is declared that the Section 4 – Health Assessment Report of Dr Parker dated 23 September 2014 is valid and meets the requirements of section 46 [CMSH Regulations].

13    Notwithstanding Mr Haylett’s total success before the Queensland Court of Appeal, in the three months (approximately) since its judgment, Hail Creek Coal has still refused to reverse its earlier decisions to stand him down and cease paying his wages.

The claims in this proceeding

14    This proceeding was commenced in December 2014. In it, the Construction, Forestry, Mining and Energy Union (CFMEU) claimed declarations under s 545 of the Fair Work Act 2009 (Cth) (the Fair Work Act) to the following effect:

(a)    that Hail Creek Coal has contravened s 50 of the Fair Work Act by contravening clauses 7.1 and 7.6 of the Hail Creek Agreement 2011 by failing to pay Mr Haylett wages in accordance with those provisions;

(b)    that Hail Creek Coal has contravened s 340 of the Fair Work Act by failing to provide Mr Haylett work or pay him wages because he had exercised a number of workplace rights, including that he commenced proceedings in the District Court of Queensland against Hail Creek Coal, pursuant to Ch 5 of the Workers’ Compensation and Rehabilitation Act 2003 (Qld) for common law damages on 13 December 2012; and

(c)    that Hail Creek Coal has contravened s 351 of the Fair Work Act by failing to provide Mr Haylett work or pay him wages because of his physical disability of the C6 and C7 disc protrusion.

15    By way of relief, the CFMEU sought a number of orders, including compensation for the loss suffered by Mr Haylett, an order for his reinstatement as a drill rig operator and for an order imposing civil penalties on Hail Creek Coal.

16    Because Hail Creek Coal’s appeal was pending in the Queensland Court of Appeal at the time this proceeding first came before me, it was adjourned to await the outcome of that appeal, with an indication that it would be likely to be dealt with expeditiously should it be relisted.

17    Soon after the Court of Appeal’s judgment was delivered, and upon Hail Creek Coal again refusing to reverse its earlier decisions and reinstate Mr Haylett, an interlocutory application was filed seeking an order for his reinstatement. Hail Creek Coal opposed that application. At the hearing of the application in early February 2016, I fixed an urgent trial date in this proceeding approximately three weeks hence and the application was then dismissed.

The issues that arise

18    On the pleadings, it is agreed that:

(a)    Mr Haylett exercised four workplace rights, including that he exercised the right to commence proceedings in the District Court of Queensland seeking an award of common law damages against Hail Creek Coal;

(b)    Hail Creek Coal took adverse action against Mr Haylett, as described in s 342(1)(b) of the Fair Work Act: “injures the employee in his or her employment”. Curiously, it denied that it had taken adverse action under s 342(1)(c) or (d), which relate to altering an employee’s position to his prejudice and discriminating against an employee. However, in relation to the former, as I understand it, Hail Creek Coal now accepts that the actions it took in November 2013 and March/April 2014 did alter Mr Haylett’s position to his prejudice; and

(c)    Mr Haylett’s physical disabilities, consequent upon his injury in 2009, included restricted movement of his neck and a limited ability to operate some heavy machinery.

19    The three broad propositions advanced by Hail Creek Coal in defence of the CFMEU’s claims may be summarised as follows. First, that Mr Haylett was employed as an operator and since he was not able to perform work as an operator from 19 November 2013, when Dr Parker issued his first assessment form, it had not breached the Hail Creek Agreement 2011 by standing him down and subsequently ceasing to pay his wages when his sick and annual leave entitlements were exhausted. Secondly, that Mr Priestly made the decision to stand Mr Haylett down on 19 November 2013 because Hail Creek Coal was obligated to take that course under the CMSH Regulations, based upon Dr Parker’s assessment of 18 November 2013 and not because he had exercised any workplace right. Thirdly, that it is an inherent requirement of Mr Haylett’s role as an operator that he can safely operate multiple types of equipment and Hail Creek Coal did not, therefore, breach s 351 of the Fair Work Act by deciding to stand Mr Haylett down and cease to pay his wages because his disability restricted him to operating a drill rig.

The relevant principles

20    In final submissions, counsel for the CFMEU indicated that, if it were to succeed in the adverse action claim (in [14(b)] above), it would not seek a ruling on the other two claims. Alternatively, if it failed on the adverse action claim but succeeded on the breach of the Hail Creek Agreement 2011 claim (in [14(a)] above), it did not seek a ruling on the third and final claim, the disability discrimination claim, under s 351 of the Fair Work Act (in [14(c)] above). Adopting that order, the issues to be determined and the principles relevant to their determination can be broadly summarised as follows:

(a)    On the adverse action claim, whether at the time the adverse action was taken, that is, when Mr Haylett was stood down on 19 November 2013, and when Hail Creek Coal ceased paying his wages in March/April 2014, the reason or reasons which motivated Mr Priestly to take that action did not include, as a substantial and operative reason, the fact Mr Haylett had exercised one or more of the agreed workplace rights. The principles relevant to the determination of this issue were illuminated in the High Court judgments of Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500; [2012] HCA 32 (Barclay) and Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (2014) 253 CLR 243; [2014] HCA 41 (BHP Coal) and include the following:

(i)    the inquiry into the decision-maker’s reasons for undertaking the adverse action is to be undertaken at the time the adverse action was taken: see Barclay at [42], [127] and [140];

(ii)    the inquiry is to take account of all the relevant circumstances: see Barclay at [45] and [127];

(iii)    the focus of the inquiry is the reason or reasons which motivated the decision-maker to take the adverse action: see Barclay at [45] and [127] and BHP Coal at [7] and [19];

(iv)    any prohibited reason must be a substantial and operative reason for the decision to take the adverse action: see Barclay at [104], [127] and [140] and see also Construction, Forestry, Mining and Energy Union v Clermont Coal Pty Limited [2015] FCA 1014 (Clermont Coal) at [107]–[110] and [120]; and

(v)    the inquiry does not apply an “objective” standard: see Barclay at [44] and [126] and Clermont Coal at [121], and nor does it import some “unconscious” reasoning to the decision-maker: see Barclay at [124] and [146] and Clermont Coal at [121].

(b)    On the breach of Hail Creek Agreement 2011 claim, whether, in accordance with the provisions of the Hail Creek Agreement 2011, Mr Haylett was ready, willing and able to do the work he was required to do at Hail Creek Coal. Further, if Mr Haylett was so ready, willing and able, whether Hail Creek Coal breached clauses 7.1 and 7.6 of the Hail Creek Agreement 2011 by not paying him his monthly salary from March/April 2014. On this issue, the principles outlined in the cases relied upon by the CFMEU and by Hail Creek Coal are, in my view, to substantially the same effect. Those authorities were Gapes v Commercial Bank of Australia (1980) 41 FLR 27 at 29 and United Firefighters’ Union of Australia v Metropolitan Fire Brigades Board (1998) 86 IR 340 at 352 and Coal & Allied Mining Services Pty Ltd v MacPherson (2010) 185 FCR 383; [2010] FCAFC 83 at [114] and Spotless Catering Service Ltd v Federated Liquor and Allied Industries Employees Union of Australia, NSW Branch (1988) 25 IR 255 at 262.

(c)    Finally, on the disability discrimination claim, whether Hail Creek Coal contravened s 351(1) of the Fair Work Act. Despite the heading to that section, it does not appear to be a discrimination provision in the classical sense because, among other things, it does not expressly involve any comparator. However, those concepts may be imported into the section by s 351(2), which provides an employer with a defence based upon certain provisions of State and Territory anti-discrimination legislation. Fortunately, as will appear below, because of the order in which the CFMEU is content for its three claims to be considered, I do not need to grapple with these issues.

The adverse action claim

21    I turn then to the first claim in order, the adverse action claim. On that claim, it is appropriate to note at the outset an important provision of the Fair Work Act which underpins the principles that I have outlined above. That is, that ss 360 and 361 of the Fair Work Act place the onus on Hail Creek Coal to show that none of the pleaded prohibited reasons, namely the four workplace rights that Mr Haylett exercised, was a substantial and operative reason for the adverse action it took against him.

22    Next, it is convenient to return to a matter I adverted to above (see at [18(b)]). As I understand it, Hail Creek Coal now accepts that its actions in standing Mr Haylett down in November 2013 and ceasing to pay him his wages from March/April 2014 were both adverse actions. If it does, this concession is well made because both actions clearly involve a prejudicial alteration of Mr Haylett’s position as an employee: see, for example, Short v Ambulance Victoria [2015] FCAFC 55.

23    Taking into account the principles I outlined above (see at [20(a)]), it is necessary to examine Mr Priestly’s evidence to determine whether Hail Creek Coal has discharged its onus to show that none of the four workplace rights Mr Haylett exercised was a substantial and operative reason for its decision to stand him down on 19 November 2013. If, based upon my examination of Mr Priestly’s evidence, I am not satisfied on the balance of probabilities that Hail Creek Coal has discharged its onus in relation to that action, I will not need to consider the second action, that is, Hail Creek Coal’s decision to cease paying Mr Haylett his wages in March/April 2014. Nor will it be necessary to examine the reasoning process employed by anyone else at Hail Creek Coal insofar as it related to either action. As it happens, because of the views I have formed about the reliability of Mr Priestly’s evidence, I do not consider Hail Creek Coal has discharged the onus I described earlier, and I will not, therefore, have to embark upon a consideration of these other matters to which I have just referred .

24    Before turning to examine Mr Priestly’s evidence, it is appropriate to do two things. First, to reiterate that the “primary and only” reason Mr Priestly gave for his decision was the need to comply with the CMSH Regulations (see at [5] above). Secondly, to record that, based upon the evidence of Mr Terry, a Human Resources specialist working at Hail Creek Coal, I find that Mr Haylett’s stand down occurred on 19 November 2013 with effect from the commencement of work that day. This finding is based on Mr Terry’s evidence that the word “certificate” was a reference to the assessment form completed by Dr Parker on 18 November 2013.

25    Because his evidence was so critical in the determination of this proceeding, I watched Mr Priestly closely when he gave his evidence. From those observations I found Mr Priestly to be generally unsatisfactory as a witness. He was often evasive in his answers and, while he was surprisingly clear about his recollection of the detail of past events, or his past state of mind, when it suited his purposes, or those of Hail Creek Coal, he was quite vague when it did not. In addition, I thought he maintained irrational positions in the face of clear and cogent material to the contrary, thereby demonstrating an obstinacy which was inconsistent with someone attempting to give a fair and accurate account of events. In making this observation, I have attempted to make allowance for the natural tendency of litigants to be somewhat partisan.

26    The most telling example of this latter phenomenon was his attempt to rationalise his decision to ignore the clear declaration of the Queensland Court of Appeal that I quoted earlier (see at [12]). When he was first asked about that declaration, he began by saying that he did not recall it. This, it should be noted, was despite the fact that the Court of Appeal judgment was delivered only three months (approximately) before he entered the witness box. His explanation for this memory loss was that he was confused about the dates. Then, when he was taken to the express terms of the declaration, he responded by reiterating the position Hail Creek Coal had put to the Court of Appeal, and which it had rejected, namely that Mr Haylett should have been assessed as an operator, not as a drill rig operator, and, therefore, he should have been assessed by reference to the assessment form dated 30 September, rather than the assessment form dated 23 September.

27    When I asked Mr Priestly when it was that he personally came to that position, he said that it was “possibly after” November 2013, but he could not recall. He went on to say that it was “a learning experience” gained from discussions. When the questioning returned to the Court of Appeal judgment, this exchange occurred in which he conceded he was “thinking on [his] feet” when giving his answers:

MR FRIEND: Right. And so you take a different view to the Court of Appeal about the Act. Is that right?---Let me see if – sorry, I am catching up, and I apologise. I’m thinking on my feet as best I can.

Well, just answer the questions, Mr Priestly, honestly. Don’t think about it too much, please. You take a different view to the Court of Appeal?---I’m not – I’m sorry, I don’t mean to be argumentative, but I just don’t know how to - - -

All right?---I can only sort of explain things in my own words, and - - -

Do you - - -?---I’m not sure whether I should answer yes or no to questions where I need to provide context to my answer.

28    On further questioning, he reverted to the same explanation as he gave earlier, referring to the position Hail Creek Coal had put to the Court of Appeal. Near the end of his cross-examination, when the questioning again returned to the Court of Appeal judgment, he said that he had only: “Skimmed it and understood what I could have.” He gave that answer immediately after the following questioning about the effect of the Court of Appeal declaration, vis-à-vis his view that Mr Haylett did not have a valid section 4 assessment for the role of operator:

[MR FRIEND:] Well, you’ve persistently refused to take him back, no matter what happened, haven’t you?---No. I would not say that characterises it. I would say that, my understanding is Mr Haylett does not have a current valid section 4 health assessment for the role of operator, and whilst that condition remains in that situation, I’m unable to have him back on the mine to perform work as an operator.

And no matter if the highest court in this State tells you you’re wrong, you still maintain that position, don’t you?---That’s a difficult one for me, because I don’t understand all the nuances of the highness of courts and – but I do understand that, even if a court were to impose, I would imagine, and I’m not lawyer, as we’ve established already, that they would still have to have consideration for regulation 46, which imposes an obligation on an employer, and my understanding of the operation of that clause is that – I don’t know if a court could give us permission not to comply with that section, but – potentially, I don’t know.

29    It hardly needs to be said that if a citizen of this State can decide whether or not to abide by a decision of the highest Court in this State, or indeed, any Court, by reference to his or her self-serving interpretation of that Court’s order, the rule of law would be significantly undermined. That is all the more so where, in this instance, the citizen concerned had already put that particular interpretation to the Court concerned and had failed to persuade it that it was the correct interpretation as a matter of law. A party subject to a Court order is required to understand that order and obey it: see Athens v Randwick City Council (2005) 64 NSWLR 58; [2005] NSWCA 317 at [36] per Hodgson JA.

30    While I am addressing this matter, I should deal with the explanation that Hail Creek Coal’s counsel proffered for the position his client had adopted in relation to the Court of Appeal judgment. He referred me to a number of paragraphs of Mr Priestly’s affidavit and a letter dated 10 December 2015 that Hail Creek Coal’s lawyers had sent to Mr Haylett’s lawyers. Neither, in my view, comes close to providing a satisfactory explanation for Hail Creek Coal’s position. The paragraphs of Mr Priestly’s affidavit describe the current position pertaining to the duties of operators at the Hail Creek Coal mine and, in particular, to their need to be multi-skilled. This evidence may support the position taken by Hail Creek Coal that Mr Haylett’s ability to work only as a drill rig operator is inconsistent with the current operational requirements at the mine and it may therefore be relevant to the question of reinstatement. However, it does not engage with the plain import of the Court of Appeal declaration that Mr Haylett had a valid assessment under the CMSH Regulations as from 23 September 2014.

31    The letter of 10 December 2015 is different. It responds to Mr Haylett’s lawyer’s request that he be allowed to return to work following the Court of Appeal judgment. That letter states that, before that can occur, Mr Haylett will have to undergo a: “fitness for duty assessment.” On its face, that request might be regarded as unremarkable. However, what follows is remarkable. The letter goes on to state that the request is based upon s 39 of the CMSH Act and: “our client’s health and safety obligations generally.” Coming from a firm of lawyers, this is remarkable because s 39 of the CMSH Act defines the obligations of a coal mine worker and it says nothing about Hail Creek Coal’s health and safety obligations under that Act. Those obligations are spelled out in ss 40 to 42. Those provisions underpin the requirements of the CMSH Regulations, including reg 46. It is that regulation, and the assessments conducted under it, to which the Court of Appeal declaration is directed, to wit, that Dr Parker’s assessment of 23 September 2014 was a valid assessment for the purposes of that regulation. I do not therefore consider this letter provides an explanation for the position Hail Creek Coal has adopted in relation to the Court of Appeal judgment. If anything, it appears to represent a misguided attempt to circumvent that judgment by relying upon other provisions of the CMSH Act, none of which appears to be pertinent and none of which appears to have been previously relied upon by it in its litigation before the Supreme Court or the Court of Appeal. Nonetheless, while these matters may be relevant to the issues of damages or penalty, it is not necessary for me to pursue them any further at this stage.

32    I return then to the evidence of Mr Priestly. Another generally unsatisfactory aspect of his evidence was his unconvincing attempts to explain the references to return to work or “RTW” in the correspondence and other documents emanating from, or directed to, him soon after his decision to stand Mr Haylett down because he was not safe to work on the mine site while he had an adverse assessment under the CMSH Regulations. The following excerpt from the transcript provides an example of this feature of his evidence:

[This questioning related to an email dated 22 November 2013 from Mr Lawler to Mr Terry and Ms Gollogly which was copied to Mr Priestly commenting on an email from Ms Helen Robinson where Mr Lawler stated: I don’t understand the last paragraph [of Ms Robinson’s email]. Who will support the RTW [return-to-work] process if Helen will not?]

[MR FRIEND:] When you read that, did you realise that Mr Lawler had it in his mind that Mr Haylett would be part of a return-to-work process, notwithstanding the section 4?---I don’t know exactly what Jonathan meant by that. I read it – he doesn’t understand the last paragraph where it says that she would like no further involvement. Potentially, and I’m speculating- - -

Well- - -?--- - - - Jonathan was suggesting Helen was the only injury management adviser. If she doesn’t – if she’s not involved in the case, who will support the process?

That’s right. And the only reason to have her involved in the case is, as he says, to create a return-to-work process for Mr Haylett; correct?---No, I don’t think I agree with that statement.

All right. Well, do you accept that at least in Mr Lawler’s mind the possibility of return to work for Mr Haylett as at 22 November was alive?---Sorry, could you – I misunderstood that question.

It’s a simple question. Would you agree that at least in Mr Lawler’s mind the possibility of a return to work for Mr Haylett as at 22 November was alive?---Was alive as in possible.

As a possibility?---I am not sure what Mr Lawler knew of the case so I cannot speculate as to whether he knew the return-to-work process for Mr Haylett or if that’s what he was referring to. I read that as - - -

So you don’t – all right. You don’t accept on the basis of Ms Robinson’s emails that she’s talking about a return to work. You don’t accept that Mr Lawler is talking about a return to work. You sit there and say, “No, return to work was impossible. All these emails are about something else.” That’s your evidence, isn’t it?---No, that’s not my evidence. Sorry, I thought I answered that. I believe what I said was I understood Ms Robinson’s paragraph down the bottom when it talked about needing “a skill set above mine” I believe what she was referring to was the conundrum that she perceived where a person had been given a doctor’s advice – from Dr Dawes – on page 264 where it said that he could operate the drill, but other than that was unable to hold a section 4 for the role of operator and I believe - - -

But, Mr Priestly, I’m also talking about her first email - - -?---I’m sorry.

- - - about further assessment completed regarding safe working capacity; you discounted that one too, didn’t you?---No, I thought I answered that. I thought I answered that as saying - - -

You answered them all the same way. You said, “I don’t accept that that’s all about return to work. It’s about something else,” and on some occasions you’re not even sure what it is. That’s the case, isn’t it?---Well, I thought I answered that in terms of you asked me that question and I said that I thought it meant further – as regards to page 263, you asked me about the third paragraph and asked me to speculate on what that meant. And what I said that I thought that meant was that further action seemed to be discussed with emphasis under:

…to determine his work capacity, eg referral to an occupational physician.

So I thought I answered that I thought that meant that she wanted further advice from another person. I don’t believe I said anything about whether I thought that had anything to do with return to work.

The one thing you won’t accept is that any of these emails had anything to do with return to work for Mr Haylett. That’s correct, isn’t it?---I don’t read anything explicitly in that that talks about return to work.

Is that a yes?---Yes.

33    Near the conclusion of his cross-examination, Mr Priestly was again questioned about this issue and he compounded the confusion by saying:

[MR FRIEND:] All right. And of course you don’t think that any of those emails I showed you at the beginning of the cross-examination suggest that rehabilitation or return to work was an option for Mr Haylett, do you?---I think I would answer that by saying that I don’t think that those emails are necessarily referring to return to work. I believe they’re referring to some other complexity around – which I answered at the time.

Yes.?(sic)---But I think to therefore say that I didn’t have any consideration for return to work, or wouldn’t have had any in the future, I’m not sure you could say that, because that would be speculating as whether I would have or wouldn’t have.

At the time you weren’t thinking about it?---No, at the time it was – it had not reached that point. No.

34    I turn now from the general unsatisfactory features of Mr Priestly’s evidence to some specific aspects relating to his decision to stand Mr Haylett down for the “primary and only” reason identified above. First in time, I do not accept Mr Priestly’s evidence that the award Mr Haylett obtained from the District Court of Queensland at Brisbane on Friday, 15 November 2013 had “no bearing” on, or “did not have anything to do with”, his decision to stand Mr Haylett down on 19 November. He gave those answers in his evidence-in-chief when asked about the commencement of that proceeding. However, he was also asked about that proceeding more broadly in cross-examination. In reaching this conclusion, I have had particular regard to the evidence of Mr Lawler that: “Cost constraints and cost reduction was high” for Hail Creek Coal at this time. I have also had regard to an email Mr Lawler sent to Mr Munro, the general manager at Hail Creek Coal, and Mr Priestly, on the Friday afternoon (15 November 2013) that Mr Haylett’s District Court judgment was delivered. In that email, Mr Lawler stated, among other things, that that judgment was “a significant payout” and that, while it did not represent a direct cost to Hail Creek Coal because the insurer would have to meet the judgment, it may: “However, [be] an indirect cost in future premium calculations.”

35    Secondly, I do not accept Mr Priestly’s claim that he stood Mr Haylett down on 19 November 2013 because he had any genuine concern about Hail Creek Coal’s obligations under the CMSH Regulations, particularly reg 46. In all the circumstances, I think this rationale is likely to have been a pretext for a hasty decision made by Mr Priestly to remove Mr Haylett with the knowledge from Mr Lawler’s email that he posed a possible future cost risk to Hail Creek Coal’s operations, specifically with respect to its future insurance premiums. In this respect, it is worthy of note that Dr Parker’s assessment of 18 November 2013, which was in Mr Priestly’s possession because it was attached to Ms Robinson’s email (see at [5] above), was expressly directed to a “significant and foreseeable risk of further injury or aggravation” of Mr Haylett’s condition.

36    That the decision to stand Mr Haylett down was made in haste is apparent from the fact that Ms Robinson’s email was sent to Mr Priestly at 4.33 pm on 19 November 2013. I have already found above (at [24]) that Mr Haylett was placed on sick leave (without his request) with effect from, and including, the commencement of work on 19 November 2013.

37    That Mr Priestly did not have a genuine concern for Hail Creek Coal’s obligations under CMSH Regulations is supported, in my view, by the circumstances set out below. To put these circumstances in some context, it is important to record that one of the main purposes of the CMSH Act and Regulations is to protect the safety and health of employees working in the coal mining industry; it is not directed to the operational requirements of coal mining employers.

38    Mr Priestly said in evidence that, as at 19 November 2013, he did not know Mr Haylett, and he did not know what work Mr Haylett was performing at the Hail Creek Coal mine. In particular, he said he did not know that, for the past three years, Mr Haylett had been working safely as a drill rig operator at the mine without any reported difficulties despite the fact his prior injury meant that his progress was generally monitored by Hail Creek Coal’s injury management team. Significantly, despite this dearth of knowledge about Mr Haylett, Mr Priestly did not ask anyone about Mr Haylett’s work activities before making his decision to stand him down, purportedly for safety reasons. For example, there is no evidence that Mr Priestly consulted Mr Haylett’s supervisor, or anyone else, to ascertain any details of Mr Haylett’s work activities.

39    Ms Robinson’s email of 19 November 2013 was plainly sent in the context of the assessment process under the CMSH Regulations and it stated that Mr Haylett “should not complete operator duties until further assessment is completed regarding safe working capacity”. However, it did not specifically mention reg 46, nor any other paragraphs of those Regulations. Despite those statements in her email, Mr Priestly did not speak to Ms Robinson about its contents, nor gain any advice from any other person in Hail Creek Coal’s Human Resources section about those matters.

40    In this regard, it is worth reiterating the general unsatisfactory feature of Mr Priestly’s evidence mentioned above (at [32]–[33]) that Mr Priestly tried to maintain that the assessment process to which Ms Robinson referred in her email, and which was also raised in subsequent correspondence, was not directed to Mr Haylett returning to work at Hail Creek Coal. On the same topic, despite it being mentioned in one of the letters he signed, Mr Priestly also appeared to be unaware of the effect of reg 48 of the CMHS Regulations which placed constraints on the actions an employer may take when an employee is the subject of an adverse assessment under those Regulations.

41    The latter aspect above may not be surprising because it was apparent from his evidence that Mr Priestly had a rudimentary knowledge, at best, of the terms of the CMSH Act and Regulations and how they operated. He said in evidence that his knowledge of the operations of that Act and Regulations was gained when obtaining his Senior Site Executive qualifications in Queensland. He also said that he gained some knowledge of similar legislation while he was working in Western Australia. As well, he claimed to have gained some experience from his time working as the mine manager at Hail Creek Coal in dealing with other assessments under the CMSH Regulations.

42    Notwithstanding this experience, his rudimentary knowledge of the CMSH Regulations was plainly demonstrated when he was taken to them, and particularly reg 46, in cross-examination. He could not point to any part of reg 46 that required him to act as he did in relation to Mr Haylett, ultimately claiming that it was “implicit”. With regard to that claim, he said in evidence that he had no qualifications or experience as a lawyer. Further, he did not say in evidence that, before deciding to stand Mr Haylett down, he refreshed his memory about the CMSH Act or Regulations by reading them, or by reference to any other material. Finally, he did not say that he obtained any advice from anyone else about the terms of the CMSH Act or Regulations before making his decision.

43    For all these reasons, I am not satisfied that the “primary and only” reason (see at [5] above) for Mr Priestly’s decision to stand Mr Haylett down was out of concern for Hail Creek Coal’s obligations under the CMSH Act and Regulations. That being so, I am not satisfied that Hail Creek Coal has discharged its onus to show that the adverse action it took in standing down Mr Haylett on 19 November 2013 was not substantially and operatively affected by a prohibited reason, specifically Mr Haylett’s pursuit of a common law damages claim against Hail Creek Coal in the District Court of Queensland. Having reached this conclusion, I do not need to consider whether Hail Creek Coal has discharged its onus in relation to its decision to cease paying Mr Haylett’s wages in March/April 2014.

The breach of Hail Creek Agreement 2011 claim

44    It is also unnecessary to address the breach of Hail Creek Agreement 2011 claim, but I will do so for completeness, albeit briefly. For the purposes of that claim, the apposite clauses of the Hail Creek Agreement 2011 are clauses 5.3, 6, 7.1, 7.6 and 10.1 and annexure 1, as follows:

…

5.3    Work

Hail Creek may require an Employee to carry out any work that is within their competence, subject to safety and statutory requirements. Employees may also be required to undertake training.

Employees who do not attend for work when required, or who do not work as Hail Creek directs them to do, will be counselled and, where necessary, subject to disciplinary action and at Hail Creek’s discretion may not be paid for the time that they did not attend or did not perform that work.

…

6    Classifications

Employees will be engaged and classified in operator or maintainer positions. Indicative base salaries are set out in clause 2 of Annexure 1.

This Agreement underpins the terms of the staff contracts of employment of all Employees covered by this Agreement. There will be no reduction in base salaries and market premiums for existing Employees as a result of this Agreement. In particular, salaries may exceed the minimums provided for in Annexure 1.

…

7.1    Full-time and Fixed Term Employees

Full-time and fixed term Employees will be paid an annualised salary that includes provision for all ordinary hours averaged over a roster cycle, overtime penalties, loadings and all other payments or allowances (Total Salary).

The Tota1 Salary is comprised of a Role Base Salary, a Market Allowance, a Commute Allowance and a Roster Allowance where applicable. Annexure 1 sets out the salary structure.

The quantums of salary payable under this Agreement may be varied having regard to the provisions of Clause 7.5.

…

7.6    Method of Payment

An Employee’s Total Salary following adjustment if required for a salary sacrificing arrangement, will be paid monthly into bank accounts of the Employee’s choice.

Any errors in payments must be notified as soon as is practicable. Any over payments shall be recouped from the Employee’s Total Salary, any accrued entitlements owing or any other payments made to Employees. Any under payments shall be rectified as soon as is practicable.

…

10.1    Rosters

Employees will be required to work the hours that are reasonably necessary to perform their role. Employees may be required to work shills of up to 12½ hours duration.

Hail Creek may carry out its operations 24 hours per day, 7 days per week. Hail Creek will implement and change roster systems to meet the needs of the operation and in consideration of the health and safety needs of Employees. Prior to the introduction of any new roster system, Hail Creek will consult with the Employees directly affected, as far as is practicable, and will give prompt consideration to the matters raised by the Employees.

Employees may be required to perform a handover for communication and work continuity. Recognition for this requirement is included in the Employee’s total Salary.

Employees may be required to change between day work, shift work, shift work and day work or from one form of shift or shift roster to another.

Where it is identified by Hail Creek that the hours of work including pre-shift meeting and hot seat changed cannot consistently be completed in 12½ hours and all other options have been exhausted, a hot seat change will not occur.

…

Annexure 1 - Salary Structure

…

2 Role Base Salary

An Employee’s Role Base Salary includes compensation for additional hour’s (sic) that are worked during employment.

An Employee’s Role Base Salary will be reviewed annually.

…

(Emphasis in original)

45    It is also important to record that, under Mr Haylett’s conditions of employment, he was employed as an operator.

46    Hail Creek Coal contended that, from 18 November 2013 Mr Haylett was not entitled to receive wages under the Hail Creek Agreement 2011 because he was not able to perform the role he was employed to perform, namely, an operator, in the sense of a multi-task operator. It contended that Mr Haylett could not perform that role because he did not have a valid assessment under the CMSH Regulations. It claimed the Hail Creek Agreement 2011 did not evince an intention to provide for the payment of salary irrespective of performance. It pointed to clause 10.1, which states: “Employees will be required to work the hours that are reasonably necessary to perform their role.” It also relied upon clause 6 and the categories set out in annexure 1, relating to operators, to contend that an employee’s entitlement to salary is connected with their ability to perform that category of work.

47    For its part the CFMEU contended that Mr Haylett was entitled to receive an annual salary, payable monthly, under clauses 7.1 and 7.6 of the Hail Creek Agreement 2011. It contended that, at all times since 19 November 2013, Mr Haylett has been ready, willing and able to perform the position he had been performing up until that time, of an operator operating a drill rig. It contended he was not, before that date, required to, and he has not since been required to, perform any other work under clause 5.3 of the Hail Creek Agreement 2011. Accordingly, it contended that Hail Creek Coal had breached the Hail Creek Agreement 2011 by not paying him his salary under clauses 7.1 and 7.6.

48    Thus far, it has only been necessary to briefly mention the operator issue that seems to have pervaded many of Mr Priestly’s actions in this case. That issue seems to have grown in importance in more recent times, with cost pressures being placed on the coal mining industry generally and Hail Creek Coal in particular. These pressures seem to have led to Mr Priestly’s concern to ensure that all operators at Hail Creek Coal were able to perform multiple skills. So much was apparent from the evidence he gave about the learning experience he has had related to that issue since late 2013.

49    Whatever may be the position with the current requirements for operators at Hail Creek Coal and how long those requirements have prevailed, I do not consider those matters are relevant to determining the obligations the Hail Creek Agreement 2011 placed on Mr Haylett and Hail Creek Coal. On that question, I consider Mr Haylett is correct that clause 5.3 is the express provision in that Agreement that allowed Hail Creek Coal to give directions as to the work each operator at Hail Creek Coal was required to perform, subject to their competencies and to safety and statutory requirements.

50    There is no evidence that, on 19 November 2013, or immediately before that date, within the terms of clause 5.3 of the Hail Creek Agreement 2011, Hail Creek Coal required Mr Haylett to perform the work of a multi-skilled operator. To the contrary, the evidence shows that for the three years, approximately, before and including 19 November 2013, Mr Haylett was required to, and did, perform the work of a drill rig operator at Hail Creek Coal, and only that role.

51    There is also no evidence that Hail Creek Coal required Mr Haylett to perform any different work at the mine on or after November 2013. Instead, it stood him down with immediate effect from 19 November 2013 and directed him not to attend work. It then ceased to pay his wages from March/April 2014. In the meantime, it paid him wages but, without his permission, it set those wages off against his sick leave and annual leave entitlements until they were exhausted sometime in February 2014.

52    On the evidence, I therefore find that Mr Haylett has, at all times from and including 19 November 2013, been ready, willing and able to work at Hail Creek Coal as a drill rig operator. Further, I find that, throughout the period since 19 November 2013, Mr Haylett has been ready, willing and able to perform the tasks that Hail Creek Coal required him to perform under the terms of the Hail Creek Agreement 2011. That being so, I find that Hail Creek Coal’s conduct in excluding him from work and subsequently ceasing to pay him his salary constitutes a breach of clauses 7.1 and 7.6 of the Hail Creek Agreement 2011. It follows that Hail Creek Coal has also breached s 50 of the Fair Work Act.

Conclusion

53    So, for these reasons, I consider Hail Creek Coal has, in summary:

(a)    taken adverse action against Mr Haylett, in contravention of s 340 of the Fair Work Act; and

(b)    contravened s 50 of the Fair Work Act by breaching the provisions of clauses 7.1 and 7.6 of the Hail Creek Agreement 2011.

54    Accordingly, Mr Haylett is entitled to declarations described above.

Associate:    

Dated:    14 April 2016