FEDERAL COURT OF AUSTRALIA

Trevena v Thiess Pty Ltd [2016] FCA 468

ORDERS

THE COURT ORDERS THAT:

1.    The application be dismissed.

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

REASONS FOR JUDGMENT

TRACEY J:

INTRODUCTION

1    The applicant, Mr Brad Trevena, was employed by Thiess Pty Ltd (“Thiess”) as an administration assistant on the Queensland Curtis Liquid Natural Gas Project (“the Project”).

2    The Project involved construction works to facilitate the production and distribution of liquid natural gas. Thiess was contracted by QGC Limited (“QGC”) to perform construction works on the Project, which involved the installation of high pressure gas pipelines and equipment.

3    Mr Trevena commenced employment with Thiess on 5 September 2012. Thiess engaged Mr Trevena on the phase of the Project known as “6+1”, which involved the construction of six field compression stations and one central processing plant, predominantly located in the Southern region of the Surat Basin. This phase of the Project was scheduled to be completed in November 2013.

4    Mr Trevena was engaged on a casual basis working an average of 60 hours over six days per week at the Project’s Ruby Jo site. Mr Trevena’s administrative responsibilities were later expanded to include aspects of flange management, that is, quality management of gas piping installation. In mid-2013, Mr Trevena discussed the prospect of securing a permanent position at Thiess with his supervisor.

5    On 27 September 2013, an incident occurred between Mr Trevena and Mr Robin Jones, a supervisor on the Project. Following this interaction Mr Trevena reported the incident to Thiess and an investigation was conducted by a member of Thiess’s human resources section. In the months following the incident, Mr Trevena was informed that he was no longer required on the Project and that no permanent position would be offered to him.

6    Mr Trevena commenced the present proceeding alleging that Thiess has contravened ss 340(1) and 343 of the Fair Work Act 2009 (Cth) (“the Act”). Mr Trevena also alleged breaches of the Competition and Consumer Act 2010 (Cth) because Thiess had promised, but failed, to employ him as a Quality Control Co-ordinator.

THE EVIDENCE

7    In accordance with orders made in the course of directions hearings the parties filed affidavits on which they proposed to rely at trial.

8    Mr Trevena filed two affidavits, one made by him and the other made by his brother, Mr Kris Trevena. Each of Messrs Brad and Kris Trevena was cross-examined.

9    Thiess filed nine affidavits. The witnesses who made these affidavits and the positions held by them at the relevant time were:

    Mr Darryl Schultz, Regional Construction Manager;

    Mr Simon Bower, employed in a number of different roles over the relevant period, including Construction Support Manager, Site Manager, Package Manager and Construction Turnover Manager;

    Mr Andrew Giammo, Project Manager;

    Mr Donald Campbell, Quality Lead for Structural, Mechanical and Piping Manager;

    Ms Penelope O’Hagan, Lead Construction Turnover Coordinator;

    Mr James McGilchrist, Quality Assurance/Quality Control Flange Management Coordinator;

    Ms Terri-Lee O’Dell, Human Resources Manager, Industrial Projects;

    Mr Adam Leary, Senior Human Resources Advisor; and

    Mr Robin Jones, Quality Assurance/Quality Control Lead, QGC.

10    Each of the witnesses was cross-examined. Leave was granted to permit some witnesses to give their evidence by video link. Messrs Bower, Schultz, Leary and Jones and Mses O’Hagan and O’Dell gave evidence by video link to Brisbane. Mr Giammo gave his evidence by video link to Perth.

FACTUAL BACKGROUND

11    For the most part the evidence was uncontroversial. The following account records my findings of fact. Where disputes have arisen relating to material matters I have made findings and explained the reasons for making them.

12    In July 2013, Mr Trevena reported to Mr Campbell. Between July 2013 and September 2013, Mr Trevena raised with Mr Campbell the possibility of being employed by Thiess in a permanent position. Mr Trevena said that he had entered into discussions with Mr Campbell regarding a permanent position in Thiess’s Quality Control Department as Quality Control Co-ordinator. In September 2013, Mr Trevena informed Mr Campbell that he was going to resign if he was not given a staff position.

13    In September 2013, Mr Campbell spoke to his supervisor, Mr Bower, about converting Mr Trevena’s casual position to a staff position, which was either full-time or part-time and which ran for a fixed term. Mr Jones and Mr McGilchrist were involved in these discussions. Each of Messrs Campbell, Bower, McGilchrist and Jones gave evidence that the discussion concerned a potential permanent position and that there was no guarantee that the proposal would be approved or that Mr Trevena would be offered the position.

14    Mr Bower said that, at around the same time, Thiess was looking for a Quality Control Co-ordinator to work on the next stage of the Project and that Mr Campbell had asked him whether Mr Trevena might be suitable for the position. Mr Bower had concerns that Mr Trevena did not hold the necessary qualifications and experience for the role.

15    Mr Trevena claimed that, on 27 September 2013, Mr Campbell and Mr McGilchrist informed him that, following a meeting with Mr Bower and Mr Jones, a permanent position of Quality Control Co-ordinator had been approved for him and that the position was listed on an organisational chart with his name next to it. Mr Trevena gave evidence that Messrs Campbell and McGilchrist informed him that a contract would be presented to him as soon as Mr Jones set KPI’s (key performance indicators) for the position. Mr Campbell and Mr McGilchrist gave a different account of what had transpired once they had returned from Mr Bower’s office that morning. One of them had said to Mr Trevena something to the effect that: “We’ve just spoken to Simon [Bower] about the possibility of making your position permanent. We’ve now progressed it to a point where Simon is now willing to look at the role. Rob [Jones] and Penny [O’Hagan] are going to set some KPIs to help Simon to justify the role to senior management and human resources”. Mr Campbell and Mr McGilchrist denied offering the permanent position to Mr Trevena. I accept these denials. I will explain my reasons for doing so shortly after recounting some further evidence.

16    Both Mr Schultz and Mr Campbell agreed that they had told Mr Trevena, at about this time, that they would “look into” a potential permanent position for Mr Trevena. No permanent position was, however, approved or offered to him. Mr Schultz deposed that he would, from time to time, draw organisational charts on his whiteboard. He did not recall including Mr Trevena as a Quality Control Co-ordinator. Even had he done so this could not reasonably be regarded as confirmation that a role had been approved. Mr Schultz did not hold authority to create a new staff role or to appoint a person to a new position. Mr Schultz denied speaking to anyone with the necessary authority about the possibility of creating or approving such a role for Mr Trevena.

17    Ms O’Dell, in her role as Human Resources Manager, oversaw all staffing arrangements across the Project, including recruitment and reimbursement of contractors for staffing costs. She gave evidence that there were strict recruitment procedures in place and that it was necessary to consult with a wide range of stakeholders before new positions could be approved.

18    The recruitment process required the completion of an authority to recruit form and an authority to offer form. New roles needed to be signed off on an approved organisation chart by the client and Thiess’s Project Director, Norm Parsons. A recruitment process would then follow.

19    Ms O’Dell said that neither Mr Campbell nor Mr Bower had the authority to make binding offers of employment. She said that Mr Bower and Mr Schultz had completed an authority to recruit form for a Quality Control Co-ordinator but that this had not been approved by the project office in Brisbane. Ms O’Dell was aware that, at one stage, Thiess did put forward a proposal to its client to take on more permanent staff for the Project but that the client did not agree.

20    The evidence suggests that Messrs Campbell, McGilchrist and Bower had actively canvassed the prospect of a staff position being created to which Mr Trevena might be appointed and that Mr Trevena had been told about these efforts. I do not, however, accept that he was advised that the Quality Control Co-ordinator position existed or that he would be appointed to it. Both Mr Campbell and Mr Bower may be taken to have understood the company’s protocols relating to the creation of new positions. The creation of such positions had to be approved in the project office in Brisbane and neither of these gentlemen had the authority to do so. They knew this and were careful in what they said to Mr Trevena. It would appear that he misinterpreted the advice that it might be possible to create the position as a fait accompli.

21    While discussions about the possible creation of a new staff position were on-going another significant event occurred. At approximately 4:30 pm on 27 September 2013, Mr Jones and Ms O’Hagan entered the quality control office. Mr Trevena was working at his desk. Upon entering the room, Mr Jones said to Mr Trevena: “How’s your father’s health”. Mr Trevena responded that his father had six weeks to live. Mr Jones said: “That’s no good mate” and left the office. Mr Trevena said that Mr Jones made these comments in what he described as a sarcastic tone and with a smirk on his face. Mr Campbell, Mr McGilchrist and two employees of a contractor, were present in the office at the time.

22    Following his shift, Mr Trevena discussed the incident with his brother, Mr Kris Trevena, who told him not to go to work the following day. Mr Kris Trevena was a welding superintendent at Thiess and had tendered his resignation on 19 September 2013. He was intending to remain on the Project until 7 October 2013. Mr Kris Trevena deposed that his professional relationship with Mr Jones was “not amicable” and that there was “ongoing friction” between them.

23    That evening Mr Kris Trevena left a voicemail message for Mr Schultz. Mr Schultz returned Mr Kris Trevena’s call. During that discussion Mr Kris Trevena informed Mr Schultz that he wanted to make a complaint about the exchange between Mr Jones and his brother. Mr Kris Trevena told Mr Schultz that, “Brad was so upset that, if he were confronted by Jones, a violent outcome may ensue”. Mr Schultz agreed that due to Mr Trevena’s upset state, it would be best if he did not return to the site on the following day. Mr Kris Trevena said that he had also left a voicemail message for Mr Giammo. Mr Giammo denied listening to any voicemail message from Mr Kris Trevena or speaking to him about the complaint. Later the same evening Mr Kris Trevena attempted to send an email to Messrs Schultz and Giammo. Due to the incorrect spelling of Mr Giammo’s email address, it was not received by Mr Giammo. The email stated:

“I would like to file an official complaint against QGC’s Rob Jones and whom ever it was appropriate to share my private business with him.

My brother works in admin at the CPP. Rob walked into his office this afternoon gave no greeting and with a smirk on his face asked “hows (sic) your father” in front of 5 other people. The response came back “he has 6 months to live”.

This is totally inappropriate and none of his business. I expect a full investigation and disciplinary action. I will be taking this as far as possible and I have instructing (sic) my brother not to return to work and nor will I be until this is suitably resolved.”

24    Mr Schultz forwarded the email to Mr Leary and instructed him to conduct an investigation into the matters raised by Mr Trevena. On 28 September 2013, Mr Leary interviewed Messrs Trevena, Jones, Campbell and McGilchrist. Mr Leary interviewed Ms O’Hagan on 30 September 2013 because she had been unavailable on 28 September. Mr Jones admitted to saying the words alleged to have been spoken by him. He denied that the words were said in a sarcastic tone or with a smirk on his face. He said that he intended to convey concern about Mr Trevena’s father’s illness. Mr Jones’s version of the interaction was corroborated by Messrs Campbell and McGilchrist. Mr Leary concluded that the allegations were unsubstantiated.

25    On 28 September 2013, Mr Jones sent an email to Messrs Campbell and McGilchrist and Ms O’Hagan regarding key performance indicators for the proposed new staff position. Ms O’Hagan suggested additional indicators.

26    On 29 September 2013, Mr Leary and Mr Schultz conveyed the outcome of the investigation to Mr Trevena and his brother by telephone. During the discussion, Mr Kris Trevena raised with Mr Leary the possibility of Mr Brad Trevena taking up the permanent position of Quality Control Co-ordinator on a fly-in/fly-out basis from Melbourne. Mr Schultz said that he discussed with Mr Kris Trevena his brother’s attempts to obtain a permanent role, to which Mr Kris Trevena responded: “Look it’s probably a waste of time anyway Darryl, because I’ll tell you now, he’s not going to live and work with Rob Jones. It’s not going to happen”. During the discussion, Mr Brad Trevena made derogatory comments about Mr Jones and Mr McGilchrist, which included calling Mr Jones a “fucking, backstabbing, conniving, vindictive cunt” and Mr McGilchrist “one of the biggest bludging cunts” and “a piece of shit”. Mr Schultz’s recollection of this conversation was not challenged under cross-examination.

27    On the same day both Mr Brad and Kris Trevena’s access to Thiess’s IT system was cancelled. Mr Kris Trevena’s access was cancelled due to his resignation from his employment. Mr Brad Trevena’s access was cancelled because he had sent an offensive email to a senior manager of QGC regarding the investigation and because of the offensive comments he had made during the discussion on 29 September 2013 with Messrs Leary and Schultz.

28    On 30 September 2013, Mr Trevena informed Mr Campbell that he would be unavailable for work for a week because he was going to travel to Victoria.

29    Later that day, Mr Trevena and Mr Leary had a telephone discussion in which Mr Trevena alleged that Mr Leary offered him the Quality Control Co-ordinator position including flights to Melbourne and that Mr Leary had said that “he would need to do some work on it and get back to him”.

30    Mr Leary gave a different account of the conversation. Mr Trevena had said that he had a preference for a fly-in fly-out role from Melbourne. Mr Leary told Mr Trevena that he would speak to senior management, who were aware of the previous discussions concerning the possibility of Mr Trevena moving to a staff role, to seek their views. Mr Trevena informed Mr Leary that he intended to pack up his unit in Dalby, relinquish his lease agreement and return to Melbourne. Mr Leary responded that: “[Mr Trevena’s] employment status would be maintained with Thiess until such time as the issues were resolved.” Mr Leary’s notes of the conversation recorded that he had told Mr Trevena: “we would get back in contact on the 8th of October to discuss the progression of the staff role that had been spoken about.”

31    I do not accept that Mr Leary offered Mr Trevena the Quality Control Co-ordinator position on a fly-in fly-out basis in the course of their telephone discussion. The creation of such a position had not been approved. Mr Leary well knew this and that he was not in a position to make an offer. What he could do was to pursue the possibility further with more senior managers. Mr Leary told Mr Trevena (as Mr Trevena acknowledged) that further work was necessary and that Mr Leary would get back to him about the matter. This evidence is consistent with that of Messrs Campbell and Bower and Ms O’Dell about the company’s processes for creating new staff positions and their observance in relation to the establishment of a Quality Control Co-ordinator position. It is also consistent with the email exchanges between Mr Jones and Ms O’Hagan regarding the preparation of KPIs for that position.

32    On 30 September and 1 October 2013, Messrs Brad and Kris Trevena travelled to Melbourne.

33    On 8 October 2013, Mr Leary telephoned Mr Trevena in Melbourne and informed him that he was “still looking into the possibility of a staff role for him.”

34    On 9 October 2013, Mr Trevena telephoned Mr Leary to discuss his position with Thiess. Mr Trevena told Mr Leary that he wanted to return to work in the permanent staff position of Quality Control Co-ordinator, with the company paying for flights to and from Melbourne. Mr Leary responded that he did not think it would be possible and that it was looking as though the only option would be for him to return to his previous casual position. Mr Leary asked whether Mr Trevena would be able to return to the position and Mr Trevena responded that he was not sure. Mr Leary ended the conversation by saying: “I will be in contact once I’ve heard anything further about the possible permanent role, but it’s not looking promising.”

35    On 10 October 2013, Mr Leary and Mr Bower discussed Mr Trevena’s request to return to work as a permanent quality control co-ordinator on a fly-in, fly-out basis from Melbourne. Mr Bower told Mr Leary that it was not going to happen. He said: “The guys have brought it up with me and we had casually discussed making Brad’s position permanent. Brad doesn’t have the background and experience for that kind of role. Brad is a good administrator, but he does not have the qualifications, background or other competencies required to fill the role of quality coordinator, if that is what he is seeking. We cannot offer him such a position.”

36    On 10 October 2013, Mr Schultz sent an email to Mr Leary asking, “Where did we end up with Brad Trevena, is he gone from the project?” Mr Leary responded: “Spoke with him yesterday. He has an expectation around being offered a staff role. I told him that this needed consideration and would get back to him. He indicated no interest in returning to a casual role.” Mr Schultz replied stating, “No staff role is available, position no longer exists. His time here is over.” Under cross-examination, Mr Schultz denied that Mr Trevena’s complaint about the conduct of Mr Jones had influenced his conclusion that Mr Trevena’s “time here is over”. Mr Schultz accepted that his concerns about Mr Trevena’s relationship with former co-workers was a factor which he had taken into account in forming his assessment.

37    On 12 October 2013, Mr Trevena sent an email to Mr Leary requesting a copy of the contract for a permanent fly-in, fly-out position of Quality Control Co-ordinator.

38    On 13 October 2013, Mr Leary sent an email to Mr Trevena, in which he said:

“As discussed the possibility of offering you a staff position has been looked into with full consideration. However, the primary decision makers in relation to this position have formed the view that your background and experience do not warrant such a position at this time. As such, no further role with Thiess on the QCLNG Upstream Project is available or on offer at this time.”

39    Mr Trevena replied later that day expressing his disappointment and asking Mr Leary to advise him when he would be expected to return to his current role.

40    On 14 October 2013, Mr Leary sent an email to Mr Trevena informing him that he would update him as soon as possible. Mr Leary spoke to members of Mr Trevena’s team to discuss his return to his casual position. The team expressed concerns about Mr Trevena coming back to work.

41    Later that day Mr Leary sent an email to Mr Bower and Mr Schultz, in which he said:

“Brad Trevena sent me an email yesterday…stating that [he] wishes to return to his casual position.

His casual contract provides us with an opportunity to terminate his contract with 24 hours’ notice.

I think it is going to be difficult to argue that Brad has given notice to us that he was not intending to return, as his position was he was returning to Melbourne for a week off and would then be in contact to discuss his future…which he has now done.

Brad’s current contract has been operating now for around 12 months (commenced Oct 26 2012). And prior to this was engaged on a fixed term contract from August. Because of this, he has been with us for a regular systematic period of 12 months and therefore has access to unfair dismissal laws. It is therefore not an option to simply tell Brad that there is no more work for him. If we did tell Brad not to come back I would think it is very likely that we would end up in a conciliation conference with the best outcome there being able to make some sort of payment to Brad. Worst outcome would be that it goes before the commission and Brad either gets 6 month’s pay or reinstatement. As I see it leaves us with 3 options:

Option 1 – Allow Brad to return back to site and continue to work until his position becomes redundant.

Option 2 – If we wanted to terminate his employment, we have a case…based on him making what was found to be a vexatious (completely unwarranted and unfounded claim) against Rob Jones…We tell Brad this over the phone formally where we put our allegations to him and give him a right of reply (24 hours), then will look at going through termination process with him via email. Still could end up in Fair work.

Option 3 – Other option is to consider a redundancy…we would have to consider 1) A realistic date of redundancy (end of the month?) – consideration of payment in lieu to that date from when we provide notice.

Let me know of any preferences.”

42    Mr Bower responded to the email stating that “a staff appointment was never offered nor guaranteed” to Mr Trevena, that “it would be untenable for [Mr Trevena] to return to work at the CPP with his former co-workers given his conduct” and “demobilisation of CPP workforce is about to commence. Brad’s tenure is unlikely to have gone further than end of November at the CPP, no different to other local employees employed on a casual basis at the CPP.” Mr Bower advised that redundancy was preferred, but if unviable, he could “find him an alternate admin role for the remainder of the CPP”.

43    Mr Schultz did not reply to Mr Leary’s email. Under cross-examination, Mr Schultz said that one of his reasons for not taking steps to bring Mr Trevena back to the Project was the concerns raised by Mr Bower and Mr Leary regarding Mr Trevena’s ability to work with his co-workers. Mr Schultz denied that Mr Trevena’s complaints had influenced his decision.

44    On 14 October 2013, Mr Trevena called the Thiess Ethics Hotline. The following day Mr Trevena forwarded relevant documentation to the Hotline.

45    Mr Trevena said that, on 15 October 2013, he spoke with Mr Campbell about his perception that Thiess was trying to get rid of him by making it difficult for him to return to work. Mr Trevena alleged that, in this telephone conversation, Mr Campbell had agreed that he had received an email from Mr Bower confirming that a staff role had been approved for him (Mr Trevena). Mr Campbell could not recall speaking with Mr Trevena on this date but agreed that he had received two text messages from Mr Trevena on that day. The first asked for Mr Campbell to call Mr Trevena. The second stated:

“Could you please forward the email referencing setting KPI’s? Could you please document the date (27th September 2013) and the time you and Jim returned from Simon’s office, what was said exactly offering me the position and who approved the position?”

46    During this period, Mr Trevena continued to send emails to Mr Leary. On 15 October 2013, he emailed Mr Leary stating:

“Adam,

I have still not received an update advising when to return to work after your suggstion (sic) of taking a leave of absence until last Wednesday 9.10.2013.

Please confirm a commencement date to return to my role as I am keen to do so.

Please respond in a reasonable amount of time (48 hours) or I will assume Thiess has terminated my employment and act accordingly.

I trust the delay is not intended to disrupt my regular systematic employment which I have worked over the past year.”

47    Later that day, Mr Leary telephoned Mr Trevena to discuss the content of his email. Mr Leary’s account of the conversation (which I accept) was:

Mr Leary:    Brad, Thiess is not terminating your employment. However, I need to know whether you are willing to return to work in your casual employment?

Mr Trevena:    I would like to return to my role on a fly-in, fly-out basis, with my travel at Thiess’ expense.

Mr Leary:    Casual employment requires an employee to arrange his or her own accommodation in the local area to be available for casual engagements. Fly-in, fly-out is not an option for casual administration employees.

…

Mr Leary:    Brad, we can’t offer you fly in, fly out from Melbourne, so how are you going to be able to return to your role in a practical sense, given that you no longer have a residence in Dalby?

Mr Trevena:    I’ll stay in a pub or something like that.

Mr Leary:    Okay, but you also need to understand that there is some work that needs to be done with your team. Your team members feel that the allegations that Rob harassed or bullied you were unjustified. Some members of the team feel that there should be disciplinary action against you, although Thiess is not going to go down that path. There will need to be some work done to improve things before you return, possibly a mediation with you and the rest of the team. I will call you tomorrow and see what you want to do.

48    On 16 October 2013, Mr Leary telephoned Mr Trevena but he did not answer. Mr Trevena did not return Mr Leary’s call.

49    On 17 October 2013, Mr Trevena sent an email to Mr Leary asking him to “forward all documentation regarding the incident [he] was involved in [on] 27th September 2013…” Mr Leary responded that he was off site but that he would get back to him when he returned to the site. Mr Leary did not follow this up as he was later informed that the matter had been “escalated” to Ms O’Dell.

50    On the same day, Mr Trevena sent an email to Ms O’Dell in which he said that he had been harassed by a QGC staff member, Mr Jones, in relation to the terminal illness of his father. Mr Trevena also mentioned that he was on the verge of being offered a full-time staff position and that, as a consequence of this incident, that offer was now jeopardised. Ms O’Dell directed Mr Trevena to the Thiess employee assistance program. She suggested that they should discuss the issues and provided her mobile telephone number.

51    On 22 October 2013, Ms O’Dell received a voicemail message and an email from Mr Trevena following up on her earlier communication. Ms O’Dell was unable to respond immediately because she was out of the office and travelling for work.

52    On 24 October 2013, Mr Campbell informed Ms O’Dell that he had seen Mr Trevena in Dalby. Ms O’Dell telephoned Mr Trevena and, according to her account (which I accept) said:

Ms O’Dell:    I hear that you are in Dalby today.

Mr Trevena:    Yes, but I’m just here to pack up my apartment and go back to Melbourne.

Ms O’Dell:    Well I’m in Dalby today too, so I was wondering whether you wanted to catch up to discuss the issues that we’ve been emailing about.

Mr Trevena:    No, thank you.

…

Ms O’Dell:    Is there anything in particular that you want to talk to me about in relation to the issues that you’ve raised?

Mr Trevena:    Yes, I really disagree with the investigation process and the findings in relation to the complaint made by Kris and me. I want to make it clear that I have not left the project; I have just gone home to clear my head. I want to put the incident behind me and move into my permanent position, but Adam has told me that the position is no longer on offer. I’ve been working on the project for about 12 months and the last six months have been in a quality control role. I had a position approved and my name was on the organisation chart that was approved and on Simon Bower’s desk. When I mentioned this to Darryl Schultz, he confirmed that he had seen the organisation chart with my name approved. I feel like I am being managed out because of the complaint.

Ms O’Dell:    Brad can you tell me a bit more about the role you say you were offered? Was there any formal interview or application process for the role?

Mr Trevena:    No, there wasn’t an interview or any formal process. I’ll send you all of the correspondence that I have.

Ms O’Dell:    Okay, that would be good. But Brad, it’s really important that I understand what was said to you and why you believe that you were offered a permanent role. I don’t know if you’re aware of this, but all quality roles were put on hold a few months ago and no one is being appointed to permanent positions. As part of my role I have oversight of all organisational chart positions and the recruitment process, so I am really surprised to hear that a role was confirmed with you without my knowledge.

Mr Trevena:    I received official advice that I was to be given a permanent staff position.

Ms O’Dell:    Who gave you that advice?

[Mr Trevena did not answer this question]

Ms O’Dell:    Thiess has a structured recruitment process which includes Authority to Recruit and Authority to Offer processes, which must be followed. No one on the site can offer any role without going through those processes. New roles have to be signed off on an approved organisation chart by the client and Thiess Project Director, Norm Parsons, and then a recruitment process needs to be conducted with each candidate.

Mr Trevena:    I’ve been really stressed about this. I’ve seen a psychologist and I’m on sleeping pills due to the harassment that I’ve experienced. I don’t like the way that this has been handled by Adam. I feel like he has been trying to trip me up. I’ve also sent information to the Thiess Ethics Line about my concerns.    

I’m packing up my Dalby residence today, so I’ll no longer be Dalby local. I’m based in Melbourne now.

Ms O’Dell:    How are you then going to be able to continue in your existing role?

Mr Trevena:    I will only return to work in the permanent staff role that I was offered. My job with Thiess is the best job that I have ever had and I am hoping to move into the 12+3 areas.

…

Ms O’Dell:    Can you tell me what it is that you are ultimately looking for?

Mr Trevena:    I want the truth regarding the incident with Rob to come out and I want to be given a staff position, fly-in, fly-out from Melbourne.

53    Ms O’Dell said that fly-in, fly-out arrangements were not available to casual workers and that those workers were required to live locally under the provisions of the head contract.

54    On 7 November 2013, Mr Trevena participated in a telephone discussion with Ms O’Dell and his union representative, Mr Steve Franklin, in which the following conversation took place:

Ms O’Dell:    What kind of resolution are you looking for?

Mr Trevena:    I want my permanent position which was offered to me by Don Campbell in the presence of Jim McGilchrist on 27 September 2013 at 8:00 am.

…

Ms O’Dell:    The information that I have after speaking with Mr Bower and Mr Schultz conflicts with what you’re telling me. Both of them advised me that the role had not been confirmed but it was agreed that the role would be considered. The role has not been formally approved. It is necessary first to go through the Authority to Recruit, Authority to Offer, approval of the organisation chart and resourcing processes. All QA/QC roles have been put on hold and there is a need for the Project Management Group to approve these roles, which hasn’t occurred…We currently have more people on the project than planned and budgeted for and it is therefore likely that we will need to make people redundant in the future.

Mr Trevena:    I should be given a permanent position at the expense of those other people.

…

Ms O’Dell:    Brad, what are you looking for as a resolution?

Mr Trevena:    I want a secure job out of Thiess. I applied for a Completions Coordinator role a month before the role was ceased.

Ms O’Dell:    We don’t currently have any permanent roles in this area but you are able to apply for any roles that suit your skillset. As a casual, it does not automatically mean that you will get a permanent role. There has to be a position for you to apply for…You had a casual role, but since you left Dalby, your actions showed that you did not want to continue in this role.

Mr Trevena:    Thiess should have told me and I would have extended my lease.

Ms O’Dell:    When I last spoke to you on the phone, you were actually with the removalists packing up your property. That was the first time I was aware of your actions. Also, if you read through the emails from Mr Leary, you will see that they outline conversations around you needing to provide a return date. You should not be making decisions or taking directions about returning to work from your brother Kris. This is not appropriate and creates a conflict of interest as Kris is not your supervisor.”

55    On 11 November 2013, Ms O’Dell informed Mr Franklin, that “there [was] no casual role for Brad to return to, as there is no longer a need for his former role. Also, there definitely was no permanent role that had been offered to Brad, as it was not approved.” Mr Franklin asked whether Mr Trevena could be employed elsewhere on the Project. Ms O’Dell responded, “there is a reluctance for people to work with Brad in the QA/QC area because he has made accusations about team members that were unsubstantiated and accused them of lying. As a result, there has been a considerable breakdown in trust.” During the conversation Mr Franklin referred to what he said were tape recordings of conversations with team members about an offer being made. Ms O’Dell reiterated that “there was no position formally approved, so nobody could officially make this offer to him nor could it be validated.” Ms O’Dell commented that Mr Trevena’s behaviour confirmed the trust issues.

56    On 25 November 2013, Mr Franklin advised Mr Trevena that Ms O’Dell had confirmed that his position was no longer available.

57    On 26 November 2013, Mr Trevena sent an email to Ms O’Dell, in which he said:

“During a conversation with Steve Franklin yesterday, he informed me that my position with Thiess is no longer required as informed by you. As you have not reponded (sic) to my last email…or contacted me since the call between yourself, Steve Franklin and I (7/11/13) where you stated you would advise if my position was still there, I wanted to check what’s happening with you.

If my position is no longer available, have I been terminated? If so, there has been no formal communication of this. Has a notice of separation been sent?

If my position is no longer available, I have not been notified! I would expect all of my personal belongings from my work station to be sent to me.”

(Original emphasis.)

58    On 13 December 2013, Mr Trevena filed a general protections application in the Fair Work Commission, which stated that Thiess had terminated his employment on 25 November 2013.

59    On 16 December 2013, Mr Trevena received a letter from Ms O’Dell, which read:

“I confirm that:

1.    A deal of time has passed since you chose to return to Melbourne on 28 September 2013.

2.    Your allegations surrounding events on 27 September 2013 were not substantiated.

3.    There was and is no permanent staff role of Quality Control Coordinator available, and certainly not on a Fly-In Fly-Out basis as you have sought to demand.

4.    Relevant work is now nearing completion following your failure to make yourself available for further casual engagements on site on your previous terms. The suggestion that your employment was in any way terminated at the Company’s initiative is refuted.

5.    As you will appreciate, we otherwise take issue with your assertions of any wrongdoing on the part of the Company.”

MR TREVENA’S CLAIMS

60    Mr Trevena made three claims. The first and second claims relate to alleged contraventions respectively of ss 340 and 343 of the Act. The third claim alleged a contravention of the Competition and Consumer Act.

61    Mr Trevena did not press a claim that Thiess had contravened s 351 of the Act. He also abandoned his claim that Thiess had breached an implied contractual term of mutual trust and confidence, following the High Court’s decision in Commonwealth Bank of Australia v Barker (2014) 253 CLR 169.

The section 340 claim

62    Mr Trevena alleged that his employment had been terminated and an offer of a staff position was withdrawn because he had lodged a complaint about Mr Jones’s conduct on 27 September 2013.

63    Section 340(1) provides that “a person must not take adverse action against another person because the other person … has … exercised a workplace right”.

64    The definition of “workplace right” contained in s 341(1)(c)(ii) of the Act includes the ability of an employee to make a complaint or inquiry in relation to that person’s employment.

65    Mr Trevena relied on the following steps, taken by him, as constituting complaints or inquiries for the purposes of s 341 of the Act:

    his making of a complaint to Messrs Giammo and Schultz on 27 September 2013;

    his making of a complaint or inquiry to Thiess’s ethics line; and

    his “elevation” of the issues to Ms O’Dell.

66    Mr Trevena contended that the complaints or inquiries were made in relation to his employment because they concerned comments made to him by a supervisor in the workplace.

67    Thiess responded that it was Mr Trevena’s brother, and not Mr Trevena, who had made the complaint to Mr Schultz. It asserted that, even if the initial complaint was characterised as a complaint or inquiry by Mr Trevena, the subject of the complaint was not “in relation to…employment”. The complaint was in relation to Mr Trevena’s father’s health, which was not a matter that related to Mr Trevena’s employment. Further it was said that the complaint concerned comments made by Mr Jones, who was an employee of QGC, not Thiess.

68    The company submitted that the subsequent complaints made to the Thiess ethics line and the elevation of the complaint to Ms O’Dell, amounted to nothing more than a continuation of the original complaint made to Mr Schultz. They could not be connected temporally to all or part of the adverse action said to found the claim, and could not, therefore, have formed part of that adverse action.

69    Thiess further submitted that the original complaint was unsubstantiated and involved conduct at which no reasonable person could have taken offence. In support of this proposition, Thiess relied on observations of Dodds-Streeton J in Shea v TRUenergy Services Pty Ltd (No 6) (2014) 242 IR 1 at 98 that:

“It does not follow, however, that the making of false, baseless, unreasonable or contrived accusations of grave misconduct against fellow employees constitutes the making of a complaint that an employee is able to make in relation to his or her employment, and thus invokes the statutory prohibition on adverse action.”

70    Relevantly, Item 1 of s 342(1) provides that adverse action is taken by an employer against an employee if the employer dismisses the employee, injures the employee “in his or her employment” or “alters the position of the employee to the employee’s prejudice”.

71    Item 2 of s 342(1) provides that adverse action is taken by a prospective employer against a prospective employee if the prospective employer refuses to employ the prospective employee.

72    Mr Trevena identified four adverse acts on the part of Thiess. They were:

    failing to offer shift work to him on a casual basis;

    failing to appoint him as a Quality Control Co-ordinator;

    manifesting an intention to terminate his employment; and

    dismissing him by letter dated 16 December 2013.

73    Thiess denied that it had refused to offer casual shifts to Mr Trevena. Thiess’s position was that Mr Trevena was not ready, willing or able to accept any offers of casual work. Thiess specifically relied upon Mr Trevena’s actions in returning to Melbourne shortly after the incident on 27 September 2013 and his later representations that he was packing up his apartment in Dalby and returning to Melbourne.

74    Thiess denied offering Mr Trevena the Quality Control Co-ordinator position. As no such offer was made, Thiess argued that it could not have altered Mr Trevena’s position to his prejudice by failing to appoint him to that position.

75    While Thiess denied dismissing, or having any intention to dismiss, Mr Trevena, it argued, in the alternative, that, any decision to dismiss him, was taken because Mr Trevena had failed to make himself available for casual engagements and, or in the further alternative, because the work performed by Mr Trevena was nearing completion.

Consideration

76    Thiess will have contravened s 340(1) if it is established that:

    Mr Trevena’s complaints and inquiries (or his right to make them) fall within the meaning of “workplace right” under the Act;

    Thiess took adverse action against Mr Trevena; and

    the exercise of the “workplace right” was “a substantial and operative” reason for Thiess’s decision to take the adverse action: Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500 at 522-3 (French CJ and Crennan J); 535 (Gummow and Hayne JJ).

77    Section 361 of the Act creates a statutory presumption that adverse action was taken for a proscribed reason unless Thiess proves otherwise: Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (2015) 230 FCR 298 at 335.

Was Mr Trevena able to make a complaint or inquiry in relation to his employment?

78    Thiess did not seek to suggest that Mr Trevena was not able to make a complaint or inquiry in relation to his employment. It did, however, contend that the complaint made by Mr Trevena about Mr Jones’s conduct was either false, baseless, unreasonable or contrived such that it did not constitute a complaint to which s 340 applied. It further contended that the substance of the complaint rendered it one which did not relate to Mr Trevena’s employment.

79    I do not accept any of these contentions.

80    I do not consider that Mr Trevena’s complaint fell within one or more of the extreme categories which were identified by Dodds-Streeton J in Shea. His complaint was not about what Mr Jones had said but about the way in which Mr Jones had inquired about Mr Trevena’s father’s health. Mr Trevena sensed a sarcastic tone and observed what he thought was a smirk on Mr Jones’s face. He may well, as Mr Leary found, have been mistaken but such a mistake does not render the accusation contrived, baseless or worse.

81    The phrase “in relation to” was said by Mason J in Fountain v Alexander (1982) 150 CLR 615 at 629 to be “an expression of wide and general import, [which] should not be read down in the absence of some compelling reason for so doing.” See also IBM Australia Limited v National Distribution Services Limited (1991) 22 NSWLR 466 at 483 (per Clarke JA). In Timic v Hammock [2001] FCA 74 at [9], Sundberg J acknowledged the expansive effect of the words “or relating to this [a]greement” when he said that they were apt to pick up “issues beyond the agreement itself” such as inducements to a party to enter the agreement and tortious and statutory claims to which it may give rise.

82    The substance of Mr Trevena’s complaint concerned an exchange between him (an employee of Thiess) and Mr Jones, who was a supervisor on the site, at the work site during working hours. Although Mr Jones was employed by QGC he was in regular contact with Thiess’s quality control team. It was their respective workplace roles which brought Mr Trevena and Mr Jones together on the fateful afternoon and facilitated the interchange.

83    The complaint was, in my view, made in relation to Mr Trevena’s employment. Nothing turns on the fact that it was made on his behalf by his brother.

Did Thiess take adverse action against Mr Trevena?

84    Mr Trevena’s submissions relating to adverse action confront a number of difficulties. Two of the four adverse acts on which he relied were failures on the part of Thiess: to offer him shift work on a casual basis and to appoint him to a staff position. The words “injures” and “alters” in Item 1 of the table in s 342(1) of the Act, when read with the phrase “must not take adverse action” in s 340(1), would seem normally to contemplate some positive act on the part of the employer to the detriment of the employee. Even if it be accepted that, in some circumstances, a decision not to take action (such as a decision by an employer not to pay an employee prescribed wages or allowances), may cause injury to an employee in his employment or alter the position of the employee to the employee’s prejudice, failures of the kind presently under consideration do not fall within the statutory proscriptions.

85    Thiess was under no legal obligation to offer work to Mr Trevena in the position which he held prior to his departure from Dalby at the end of September and which remained open. He had unilaterally determined to return to Melbourne for a week. He chose not to return save possibly on conditions on which he insisted but which were not acceptable to the company. Furthermore, Thiess was not under any obligation to offer Mr Trevena a staff position which had not been created much less advertised.

86    At least until the end of October 2013 there was no failure on the part of Thiess to offer Mr Trevena shift work on a casual basis. During this month Mr Trevena’s administration assistant position remained open. There was no occasion for Thiess to reoffer it to him. Mr Trevena had decided, at the end of September, to return to Melbourne for a week. On 13 October 2013 he was still in Melbourne. He no longer had on-going accommodation in Dalby. Although, on a few occasions, he expressed an interest in returning to the casual staff position, he made no plans to return to Dalby (other than to pack up his unit) and, in the weeks following the incident with Mr Jones, had expressed reluctance to continue to work with Mr Jones. He was asked on a number of occasions by Thiess staff whether he was prepared to return to the mine site and resume his former duties. On each occasion he gave an equivocal answer or attached a condition to any such return. On 15 October 2013, for example, Mr Leary asked Mr Trevena whether he was willing to return to work in his existing role and Mr Trevena responded that he would only return to that role on a fly-in fly-out basis at Thiess’s expense. When he spoke to Ms O’Dell on 24 October and 7 November 2013 he insisted that he wanted a staff position on a fly-in fly-out basis. He was told that such a position was not available to him and that Thiess would not pay for his airfares in order to facilitate his return to the casual position which he held. By 11 November 2013 work was running down and there was no further need for his services. Thiess was under no obligation, at this stage, to offer him casual employment. Its failure to do so did not constitute adverse action.

87    There could only be a relevant failure to appoint him to the staff position which he sought if that position existed and had been offered to him. He had no right to such a position. Attempts were made by Mr Trevena’s supervisors to secure approval for the creation of the position. Even had such approval been forthcoming there was no guarantee that Mr Trevena would have been the successful applicant given that Thiess’s procedures required the advertising of such positions and a competitive evaluation of the applicants. The position did not exist. It was not offered to him.

88    The third form of adverse action alleged by Mr Trevena was very broadly expressed: the “manifestation” by Thiess of an intention to terminate his employment. He did not identify any particular occasion on which termination was foreshadowed but rather seemed to rely on the discussions and correspondence which passed between him, Mr Leary and Ms O’Dell in October and November 2013. There was no mention, in these discussions, of any foreshadowed decision by Thiess to terminate Mr Trevena’s employment. Mr Trevena was well aware at this time that the part of the Project on which he was engaged was winding up. He was seeking to obtain “secure” employment on another project in the area. This was because he well knew that, unless he obtained such alternative employment, there would be no more casual work available to him once the Ruby Jo section of the Project was completed towards the end of 2013. At that time Mr Trevena’s administration assistant position would have ceased to exist. References by Thiess management to the running down of the Project did not manifest any intention on the part of the company to terminate Mr Trevena’s services. They merely reflected the factual position.

89    Reference was also made in this context to Mr Leary’s email to Messrs Bower and Shultz on 14 October 2013. In that email Mr Leary had canvassed various options including Mr Trevena returning to work until his position became redundant and termination for cause. Mr Bower had responded that redundancy was the preferred option but that, if need be, alternative administrative work could be found for Mr Trevena until the Project concluded. The correspondence between Messrs Leary and Bower was not disclosed to Mr Trevena prior to the commencement of this proceeding. The correspondence does not indicate that any decision had been made to terminate Mr Trevena’s employment. On the contrary, Mr Bower specifically raised the possibility of Mr Trevena returning to work at the site, albeit for a short period until the 6+1 phase of the Project had concluded.

90    The internal discussion of options relating to Mr Trevena’s future employment did not constitute adverse action for the purposes of s 340(1) of the Act.

91    The fourth adverse act by Thiess, identified by Mr Trevena, was his dismissal from employment. This was said to have been effected by Ms O’Dell’s letter of 16 December 2013.

92    The terms of the letter are set out above at [59]. There is nothing in that letter advising Mr Trevena that the company had terminated his employment. On the contrary, Mr Trevena was advised that his suggestion that his “employment was in any way terminated at the Company’s initiative is refuted.” Other passages in the letter suggest that it was Thiess’s view that Mr Trevena’s employment had come to an end as a result of his abandonment of his casual position and/or the near completion of the work.

If adverse action was taken against Mr Trevena was it taken because of his exercise of a workplace right?

93    Had adverse action been taken by Thiess against Mr Trevena it would have been necessary for the company to establish that such action was not taken because Mr Trevena had exercised a workplace right to complain about the conduct of Mr Jones. In order to satisfy this onus it would have been necessary for Thiess to identify and call evidence from the person or persons within the company who had made the relevant decision or decisions. This would have been difficult, if not impossible, having regard to the manner in which Mr Trevena framed his case.

94    From the end of September 2013 until about 11 November 2013 there does not appear to have been any decision made by anyone not to offer Mr Trevena the opportunity to work in his existing casual position. There had been ongoing negotiations between Mr Trevena and, for the most part, Mr Leary and Ms O’Dell about the terms on which he might return to duty. Mr Leary anticipated that any decision to terminate Mr Trevena’s services would be a collective one involving senior management and the company’s human resources and legal advisers. He made no decision. Nor did Ms O’Dell. After 11 November 2013 no offer was made to him by anyone because there was no longer any work to do in his casual position.

95    The difficulty which would have confronted Thiess is also obvious in relation to its failure to appoint Mr Trevena to the staff position which he sought. No Thiess employee decided that he should not be appointed to the position because it did not exist.

96    Had it been necessary to deal with an allegation that Thiess had terminated the employment of Mr Trevena the evidence of Ms O’Dell would, potentially, have been relevant given that she was the author of the letter of 16 December 2013. She did not, in that letter, suggest that any other Thiess manager was responsible for any decision which it might record. Nor did she say that she had made any decision which might constitute adverse action against Mr Trevena. Her letter suggested that any termination of Mr Trevena’s contract of service occurred either because of abandonment by Mr Trevena of his employment or by reason of his casual position having, by then, become redundant. Any termination for these reasons would not have resulted in any action taken by a Thiess manager for a proscribed reason.

THE SECTION 343 CLAIM

97    Mr Trevena’s second claim was that Thiess had contravened s 343 of the Act by taking action against him with the intent to coerce him not to challenge Mr Leary’s findings about the incident involving Mr Jones on 27 September 2013.

98    Mr Trevena alleged that the following conduct by Thiess was undertaken in an attempt to coerce him not to pursue an appeal against Mr Leary’s findings:

    a threat by Mr Leary to lodge a “counterclaim” if Mr Trevena appealed the outcome of his investigation;

    not offering him casual shifts after September 2013;

    not changing his employment status; and

    “freezing [him] out” in relation to his employment.

99    Mr Trevena contended that Thiess’s conduct was intended to negate his choice in making or pursuing his complaints or inquiries and that the conduct constituted illegitimate pressure amounting to unconscionable conduct towards one of the company’s employees. Mr Trevena emphasised that no questions relating to his conduct or performance were in issue.

100    Thiess denied that it took any action to coerce Mr Trevena not to exercise his workplace right to pursue his complaint.

Consideration

101    Section 343(1)(a) provides that a person must not take, or threaten to take, any action against another person with intent to coerce the other person not to exercise a workplace right.

102    There was no dispute that Mr Trevena had a workplace right to communicate with officers in the company, more senior to Mr Leary, with a view to persuading them that the outcome of Mr Leary’s inquiry should not be accepted. Although Mr Trevena does not appear to have taken any formal steps in this regard, he certainly raised the issue with Ms O’Dell. She advised him about how to make contact with the company’s employee assistance program.

103    It is first necessary to determine whether the conduct attributed to Thiess occurred. If it did the next question becomes whether it occurred with the necessary coercive intent.

104    According to Mr Trevena Mr Leary threatened to pursue a “counter-claim” against him if he persisted in his attempts to have Thiess accept his account of the interchange with Mr Jones on 27 September 2013. This was the first of the proscribed acts relied on by Mr Trevena in respect to his claim under s 343.

105    Mr Trevena deposed that, on about 15 October 2013, Mr Leary had “threatened [that] a counterclaim could be lodged against me if I appealed the outcome of [Mr Leary’s] investigation.” The terms in which the threats were allegedly conveyed were not particularised.

106    Mr Leary denied threatening Mr Trevena with a counterclaim if he challenged the outcome of his (Mr Leary’s) investigation. Mr Leary deposed that, in the course of a conversation relating to the prospect of Mr Trevena returning to work, he had said to Mr Trevena, “your team members feel that the allegations that Rob [Jones] harassed or bullied you were unjustified. Some members of the team feel that there should be disciplinary action against you, although Thiess is not going down that path”. It was this reference to the possibility of disciplinary action which Mr Trevena appears to have understood as a threatened cross-claim.

107    Mr Leary was a senior and experienced human resources advisor at the time that it was alleged that he made the threat against Mr Trevena. He denied making any threat to Mr Trevena and, specifically, of threatening to launch any “counter-claim”. He was comfortable, following his interviews with others who had been present in the office when the exchange between Mr Trevena and Mr Jones took place, that Mr Jones had made a genuine and compassionate inquiry relating to the health of Mr Trevena’s father. Mr Leary appeared relaxed about any possibility that his findings might have been challenged. Under cross-examination, when asked whether he had been motivated to block Mr Trevena coming back to work because Mr Trevena had written an offensive email about Mr Leary’s investigation, Mr Leary stated, “it’s quite normal for people to not agree with – with findings that HR practitioners make. I don’t get too upset or offended by that”. There was no reason for Mr Leary to try to coerce Mr Trevena not to continue with an appeal against his investigation findings.

108    I accept Mr Leary’s denial. He did not threaten Mr Trevena with a counter-claim.

109    I come now to the other conduct on the part of Thiess which Mr Trevena alleged was intended to coerce him not to pursue any challenge to Mr Leary’s finding. That conduct identified by Mr Trevena was Thiess’s failure to offer him casual shifts, not converting his employment status to permanent and ‘freezing [him] out’. Unlike the alleged threat to pursue a counter-claim none of this conduct was linked, in terms, to Mr Trevena’s wish to pursue a challenge to Mr Leary’s findings. Nor was there any evidence to support any such link. I have found, in dealing with Mr Trevena’s s 340 claim, that there was no actionable failure on the part of Thiess to offer Mr Trevena ongoing casual employment or a permanent position.

110    The “freezing out” allegation appears to refer to Mr Trevena’s belief that Thiess had placed obstacles in the way of his return to work on the Project. It was Mr Trevena, not Thiess, who hampered progress towards his return to work. Mr Trevena’s position, as he made plain to Ms O’Dell in the course of their telephone discussion on 24 October 2013, was that he would only return on a fly-in fly-out basis from Melbourne. It was a condition of Mr Trevena’s engagement as a casual employee that he reside near the mine site. Thiess was not prepared to waive this requirement. Those holding staff positions might be engaged on a fly-in fly-out basis but Mr Trevena did not hold such a position. There was no staff position to which he might be appointed.

111    No relevant ‘action’ was taken by Thiess within the meaning of s 343(1).

112    Lest I be wrong in so holding I will also deal with Mr Trevena’s allegation that one or more of the four acts identified by him was taken with an intent to coerce him not to pursue a workplace right. Mr Trevena was unable to advance any convincing reasons why this conduct by Thiess (if it occurred) could be said to be linked to a desire to dissuade him from pursuing any rights of appeal he may have had from Mr Leary’s inquiry findings.

113    In Director of Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2015] FCA 225, at paragraphs [229]-[231], I reviewed a number of authorities dealing with to the “intent to coerce” as follows:

“An intention to ‘coerce’ forms an element of the statutory proscription in three of the sections appearing in Part 3-1 of the Act. These sections are 343, 348 and 355. Some of these provisions are the successors of earlier provisions such as ss 170NC and 789 of the Workplace Relations Act 1996 (Cth). In State of Victoria v Construction, Forestry, Mining and Energy Union (2013) 218 FCR 172 the Full Court considered that the meaning to be accorded to the phrase ‘intent to coerce’ had become settled (see at 187). The Court referred, with approval, to Merkel J’s statement in Seven Network (Operations) Ltd v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (2001) 109 FCR 378 at 388 that:

‘… there must be two elements to prove ‘intent to coerce’ under s 170NC(1). First, it needs to be shown that it was intended that pressure be exerted which, in a practical sense, will negate choice. Secondly, the exertion of the pressure must involve conduct that is unlawful, illegitimate or unconscionable.’

The first of these elements was explained in greater detail by Weinberg J in National Tertiary Education Industry Union v Commonwealth (2002) 117 FCR 114. Speaking of this element his Honour said (at 143) that:

‘The approach to the expression ‘intent to coerce’ taken in each of the authorities set out above makes it clear that what is required is an intent to negate choice, and not merely an intent to influence or persuade or induce. Coercion applies a high degree of compulsion, at least in a practical sense and not some lesser form of pressure by which a person is left with a realistic choice as to whether or not to comply.’

The second element was considered by Buchanan J in Fair Work Ombudsman v National Jet Systems Pty Ltd (2012) 218 IR 436. His Honour pointed to the common law origins of this element in the torts of coercion and duress. In doing so he referred (at 443) to the judgment of McHugh J in Crescendo Management Pty Ltd v Westpac Banking Corporation (1988) 19 NSWLR 40 at 46 where McHugh J had equated the three categories saying (at 46) that:

‘Pressure will be illegitimate if it consists of unlawful threats or amounts to unconscionable conduct. But the categories are not closed …’.”

(Original emphasis.)

114    This aspect of Mr Trevena’s application is a source of potential difficulty for Thiess because, as was the case in relation to his allegation that the company contravened s 340(1), it is called on to establish that it did not act for a proscribed reason (in this case that it did not intend to coerce Mr Trevena not to exercise a workplace right) without him identifying any specific decision-maker (apart from Mr Leary) who was said to harbour the requisite intention.

115    Had Mr Leary threatened to lodge some form of counter-claim if Mr Trevena persisted with his challenge to the outcome of the inquiry conducted by Mr Leary, the question would have arisen as to whether that threat was intended by Mr Leary to negate Mr Trevena’s choice to proceed. The alleged counter-claim would have raised the prospect of disciplinary action being taken against Mr Trevena for making false allegations against a fellow worker. Had the prospect of such disciplinary action been raised by Mr Leary in the context of a discussion about a challenge to Mr Leary’s enquiry it might possibly have been inferred that he had the intention of dissuading Mr Trevena from pressing on with any challenge to the enquiry outcome. It is, however, difficult, in the circumstances, to infer any intention by Mr Leary to deprive Mr Trevena of any realistic choice to proceed with such a challenge. The discussion between Mr Leary and Mr Trevena, in the course of which the threat was alleged to have been made, occurred at a time at which Mr Trevena was away from the Project site and was seeking to persuade Mr Leary that he had been offered and appointed to a staff position. The incident involving Mr Jones occurred on the same day on which that offer was said to have been made but was entirely unrelated to it. Mr Leary was not present. He was later appointed to conduct an investigation into Mr Trevena’s complaint. He did so and found the complaint to be unsubstantiated but not that it had been deliberately false. Mr Trevena had complained about the findings but had not commenced any formal review process. No accusation of misconduct by Mr Leary was made by Mr Trevena. Mr Trevena simply disagreed with the findings and may have wished them to be reviewed. No reason was advanced as to why Mr Leary would have wanted to pre-empt such a review or why his advice to Mr Trevena that no disciplinary action was in contemplation should be interpreted as an attempt to overbear Mr Trevena’s unexpressed desire to obtain a review.

116    Insofar as the alleged failures by Thiess to offer Mr Trevena the opportunity to resume his casual employment or to offer him a staff position such inaction, as I have already found in dealing with Mr Trevena’s s 340 claim, was not the result of decisions made by any individual manager of Thiess to whom a necessary intent could be attributed. The same may be said about the “freezing out” allegation. In any event none of this conduct (even if it could be in some way linked to Mr Trevena’s desire to exercise a workplace right) would have risen to the level of pressure (either individually or collectively) required to establish coercion.

117    It was not put to any of the company’s witnesses that he or she had acted or failed to act in the relevant way with the intention of negating Mr Trevena’s right to challenge Mr Leary’s findings. Mr Bower and Mr Schultz denied having knowledge of the Thiess ethics line complaint. Mr Leary could not recall having knowledge of the complaint. Each of Mr Schultz, Mr Bower, Mr Giammo and Mr Leary denied that any action or inaction on their part occurred because of Mr Trevena’s complaint on 27 September 2013. Ms O’Dell denied that any action or inaction on her part was taken because of Mr Trevena’s complaints to her, Mr Schultz, Mr Leary or to the ethics line. I accept these denials.

118    No contravention of s 343 occurred.

THE COMPETITION AND CONSUMER ACT CLAIM

119    Mr Trevena’s final claim involved the alleged contravention by Thiess of ss 18 and 31 of Schedule 2 of the Australian Consumer Law in the Competition and Consumer Act.

120    Section 18 proscribes conduct, in trade or commerce, which is misleading or deceptive or is likely to mislead or deceive.

121    Section 31 provides that a person must not, in relation to employment that is to be, or may be, offered by the person or by another person, engage in conduct that is liable to mislead persons seeking the employment as to the availability, nature, terms or conditions of the employment or any other matter relating to the employment.

122    Mr Trevena alleged that Thiess had contravened ss 18 and 31 by falsely promising him the role of Quality Control Co-ordinator. Mr Trevena relied specifically on:

    statements attributed to Mr Campbell whom he alleged confirmed the approval of the position;

    the inclusion of Mr Trevena in an organisational chart; and

    the subsequent failure to place Mr Trevena in the position.

123    Thiess denied making any offer of a Quality Control Co-ordinator position to Mr Trevena.

Consideration

124    For reasons I have already given I do not accept that the statements and conduct on which Mr Trevena relies, in alleging contraventions by Thiess of the Competition and Consumer Act, apart, perhaps, for his name appearing on an organisational chart, were made or occurred.

125    No Thiess employee engaged in conduct which caused the company to contravene ss 18 or 31 of the Competition and Consumer Act in the manner alleged.

DISPOSITION

126    The application must be dismissed.

Associate:

Dated:    10 May 2016