Federal Court of Australia

Retail and Fast Food Workers Union Incorporated v Tantex Holdings Pty Ltd [2020] FCA 1258

ORDERS

THE COURT ORDERS THAT:

1.    Within 14 days from today, the parties bring in short minutes of orders to give effect to these reasons for judgment in respect of contraventions of the Fair Work Act 2009 (Cth) (FWA), either as admitted by the respondent or as found proved or, as the case may be, not proved, by the Court.

2.    Failing the bringing in of orders by that date by the parties, the proceeding be listed for the hearing of submissions as to the form of such orders.

3.    The respondent pay the second applicant $1,000 by way of compensation for its admitted contraventions of s 50 of the FWA.

4.    Costs reserved.

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

REASONS FOR JUDGMENT

LOGAN J:

1    Tantex Holdings Pty Ltd (Tantex), the respondent, presently operates, as franchisee, six “McDonald’s” fast food restaurants. Of these, only the operation of three is relevant to this proceeding. The three restaurants, their locations and the dates or, as the case may be, approximate times from which Tantex commenced to operate them as franchisee are:

(a)    the “Myer II” restaurant located at 91 Queen Street (cnr Albert Street), on the Queen Street Mall in Brisbane’s Central Business District – from 28 June 2013;

(b)    the “Central Station” restaurant, located at Shop 3, The Concourse, Ann Street, Brisbane and part of the Brisbane Central Railway Station complex – from about 8 December 2016; and

(c)    the “Windsor West” restaurant, located at Shop 3, 172 Lutwyche Road, Windsor, Brisbane, from about 26 November 2018.

2    Ms Chiara Staines, the second applicant, is a former employee of Tantex. She undertook shift work as a “Crew Member” in its restaurants, predominantly in the Myer II restaurant, between May 2017 and 15 June 2019, when she ceased employment with Tantex. “Crew Members” are those employees who work in the restaurants who are neither immediate supervisors nor the holders of more senior managerial positions.

3    In August 2018, Ms Staines became a member of the Retail and Fast Food Workers Union Incorporated (Union), which is an industrial association within the meaning of s 12 of the Fair Work Act 2009 (Cth) (FWA) and the first applicant in this proceeding. The Union is an association incorporated pursuant to the Associations Incorporation Reform Act 2012 (Vic). It is a trade union which represents the industrial interests of workers in the retail and fast food industries in Australia.

4    The conduct which is the subject of the contraventions of the FWA alleged in these proceedings occurred during the period from June 2016 to January 2019. Throughout the whole of this period:

(a)    Ms Tanya Maree Manteit-Mulcahy was the sole director of Tantex;

(b)    Ms Staines’ employment, and that of other Crew Members at the restaurants operated by Tantex, was governed by the McDonald’s Australia Enterprise Agreement 2013 (the Agreement).

5    Tantex admits some of the alleged contraventions, others it denies.

Admitted contraventions

6    The contraventions which Tantex admits are, to the extent that they are pressed, those alleged by Ms Staines. These are alleged contraventions of s 50 of the FWA, which provides that a person must not contravene a term of an enterprise agreement. By concession of Ms Staines in relation to allegations made in the Further Amended Statement of Claim and admission in its Amended Defence to that pleading, Tantex admits that it engaged in the following conduct:

(a)    apart from three occasions, it did not provide Ms Staines with a 10 minute paid drink break, that satisfied the requirement of clause 29.1 of the Agreement, on a shift that she worked of at least 4 hours but less than 9 hours in the period from 8 May 2017 to 15 June 2019; and

(b)    it did not provide Ms Staines with two 10 minute paid drink breaks, that satisfied the requirement of clause 29.1 of the Agreement, on a shift that she worked of 9 hours or more in the period from 8 May 2017 to 15 June 2019.

Clause 29

7    At all times material to this proceeding, clause 29.1.1 of the Agreement provided:

29.1    Breaks will be given as follows:

29.1.1

8    The parties are agreed, and it is certainly appropriate, that judgment as to such penalty, if any, as should be imposed on Tantex in respect of these admitted contraventions should be delivered only after I have determined whether or not Tantex has also contravened the FWA in the way alleged by the Union. If so, it will then be necessary to determine what penalty, if any, ought to be imposed in respect of any further contraventions found proved. At that time, it will in any event be necessary to determine, in relation to the admitted contraventions, whether either or each falls within the operation of the course of conduct provisions of s 557 of the FWA. Each occasion upon which a separate drink break was or, as the case may be, was not provided may well constitute a separate contravention but it would not necessarily follow from this that the maximum penalty was a simple aggregate of individual maximum penalties.

9    In relation to the admitted contraventions, Tantex submitted that, given the admissions made, it was not appropriate to make declarations as there was no public aspect. I disagree. I consider that it is appropriate to make declarations in respect of those contraventions for reasons which are set out in Australian Competition and Consumer Commission v Yellow Page Marketing BV (No 2) (2011) 195 FCR 1, at [69], and Australian Communications and Media Authority v Mobilegate Ltd A Company Incorporated in Hong Kong (No 9) [2010] FCA 1383, at [41]. The very presence of s 50 in the FWA indicates that compliance with the terms of an enterprise agreement is not just a private matter as between employer and employee but a matter of statutory obligation. There is a singular public interest served by highlighting by declaration on the public record instances where that obligation has been breached. I shall direct the parties to bring in short minutes of the orders proposed. In that regard, care will need to be taken in the formulation of those declarations to ensure that they do not exhibit the vice of absence of precision in a way identified in Rural Press Ltd v Australian Competition & Consumer Commission (2003) 216 CLR 53, at [90], and further discussed in Australian Competition & Consumer Commission v Francis (2004) 142 FCR 1, at [113].

10    One issue which it is necessary to determine at this stage in relation to the admitted contraventions is what compensation, if any, ought to be awarded to Ms Staines pursuant to s 545 of the FWA? I deal with that later in these reasons for judgment.

Contested Alleged Contraventions

11    The Union alleges that Tantex committed four contraventions of s 345 of the FWA, contravened s 340 of the FWA and contravened s 343 of the FWA. Initially, Tantex was disposed to put in issue the Union’s standing to institute proceedings in respect of these alleged contraventions. However, a challenge to standing is no longer pressed. Tantex does put in issue whether it has committed any of the alleged contraventions.

12    Generally, the Union carries the onus of proof, although, in relation to s 340 and s 343 of the FWA, if it proves particular threshold facts, it has the benefit of the statutory presumption as to intention for which s 361 provides unless that is displaced by Tantex. It is not obliged to prove the contraventions alleged beyond reasonable doubt. These are civil penalty, not criminal, proceedings. They concern what are termed “civil remedy provisions” (s 539, FWA). By operation of s 551 of the FWA, that means that the standard of proof for which s 140 of the Evidence Act 1995 (Cth) (the Evidence Act) provides, proof on the balance of probabilities, is applicable. In that application and because the proceedings nonetheless have a penal character, s 140(2) of that Act is pertinent. That subsection, as the Full Court recognised in Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (No 2) (2015) 230 FCR 298 (CFMEU v BHP), at [63], encapsulates observations notably made by Sir Owen Dixon in Briginshaw v Briginshaw (1938) 60 CLR 336, at 362, as to the insufficiency of inexact proofs, indefinite testimony or indirect inferences.

Alleged contraventions of s 345

13    Three of the four alleged contraventions of s 345 of the FWA concern what are said to be false or misleading representations about entitlement to the taking of personal/carer’s leave. The fourth alleged contravention of s 345 concerns what is said to be a false or misleading representation about an entitlement to a 10 minute break if an employee worked more than four hours.

14    Section 345 of the FWA is directed to the subject of misrepresentations in relation to workplace rights. It provides:

Misrepresentations

(1)    A person must not knowingly or recklessly make a false or misleading representation about:

  (a)    the workplace rights of another person; or

(b)    the exercise, or the effect of the exercise, of a workplace right by another person.

Note:     This subsection is a civil remedy provision (see Part 4-1).

(2)    Subsection (1) does not apply if the person to whom the representation is made would not be expected to rely on it.

First Alleged Representations – 25 June 2016

15    The term “workplace right” is defined by s 341 of the FWA.

16    One such right, as there defined, is an entitlement of a person, “to the benefit of, or has a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body”: s 341(1)(a), FWA. The Union alleges that such rights include those specified in either or each of those in Div 7 of Ch 2 of the FWA or at least ss 96, 97 and 107 within that Division of the FWA.

17    Within Div 7 of Ch 2 of the FWA, s 96 confers on an employee, for each year of service with his or her employer, an entitlement to 10 days of paid personal/carer’s leave. That entitlement accrues progressively during a year of service according to the employee's ordinary hours of work, and accumulates from year to year: s 96(2), FWA. One reason why personal/carer’s leave may be taken is because the employee is not fit for work because of a personal illness affecting the employee: s 97(a), FWA. Notice and evidence requirements in relation to the taking of personal/carer’s leave are specified in s 107 of the FWA. In particular, notice of the taking of personal/carer’s leave must be given to the employer as soon as practicable: s 107(2)(a), FWA. Further, the employee must advise the employer of the period, or expected period, of the leave: s 107(2)(b), FWA. An employee must, if required by the employer, give the employer evidence that would satisfy a reasonable person that, if it is paid personal/carer’s leave, the leave is taken because, materially, the employee is not fit for work because of a personal illness affecting the employee: s 107(3)(a), FWA.

18    An entitlement to take paid personal/carer’s leave is a workplace right. As was recently highlighted in Mondelez Australia Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union; Minister for Jobs and Industrial Relations v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2020] HCA 29, at [23], the purpose of s 96 is the protection of employees against loss of earnings when they are unable to work for one of the reasons set out in s 97. The right to that protection is not, however, an unqualified right, as the foregoing discussion of pertinent provisions in the FWA highlights.

19    The author of the alleged representations about personal/carer’s leave is said to be Ms Manteit-Mulcahy and the means by which they are said to have been made is via the internet-based social communication platform, Facebook.

20    Ms Manteit-Mulcahy gave both affidavit and oral evidence at trial. Because of the prevailing, COVID-19 virus pandemic and related public health counter-measures, the trial had to be conducted using Microsoft Teams audio-visual software with each witness and counsel remote from the courtroom. That is a far from ideal way in which to receive oral evidence and hear submissions, so much so that I should only during an emergency countenance its use for the conduct of a trial. One reason for that is that nuances of facial expression and other aspects of demeanour are subdued by the medium via which a witness’ evidence is received. This lends an artificial, impersonal quality to the reception of oral evidence, which is not present when a witness is physically present in court. Making due allowance for these limitations, my impression was that Ms Manteit-Mulcahy gave her evidence in a frank, matter of fact way. I thought that she was an honest, reliable witness who had a reasonable recollection of the events charged. I also formed the clear impression that she was well familiar with the way in which Tantex managed its restaurant businesses?

21    During the period with which this proceeding is concerned, Tantex employed Facebook as a convenient means by which to communicate with individual employees, with groups of employees, with employees generally and also with Managers. For this purpose, it established a number of Facebook groups. It may well be that one contributor to the convenience of Facebook as a communication platform for Tantex was the predominant age profile of its restaurant crews. The predominant age profile comprised teenage secondary school students and younger, tertiary students. For many of the former group, work as a Crew Member at a McDonald’s restaurant was their first paid employment. Inferentially, given the predominant age profile of its employees, Tantex considered that its employees would be well-familiar with the Facebook platform.

22    One Facebook group maintained by Tantex was the Myer II group, not by coincidence concerned with the operation of its Myer II restaurant. The following exchange occurred between Ms Manteit-Mulcahy (“TMM” in the passage quoted) and a particular Tantex employee (“Worker” in the passage quoted) in the Myer II Facebook group:

TMM:    Absolutely not. You need to work this shift,

Worker:    I tried eating before and was unable to, im not sure i can work it [emoji not reproduced]

TMM:    You requested overnight shifts and we rostered accordingly. If you cannot find a replacement you are required to work.

[Emphasis added - sic]

23    The words emphasised are said to contain representations which contravene s 345 of the FWA. At the time, this exchange was accessible not just by the particular employee to whom it was directed but by all employees at the Myer II restaurant who were members of the Facebook group. On the evidence, the particular employee was a Mr Branden Shaw.

24    The Union was only in possession of, and tendered, screenshots taken of, presently materially, the quoted exchange on the Myer II Facebook group. It is inferentially likely, having regard to the exchange tendered (“You requested overnight shifts and we rostered accordingly”) that the exchange occurred in a particular, wider context. That wider context, as far as it might be revealed by exchanges on, or posts to, the Myer II Facebook group, could not be introduced in evidence, because the group and its contents had been deleted from Facebook. This occurred in or around late January 2019, on the initiative of Mr Christopher Crenicean, general manager of Tantex’s restaurants. These proceedings were not instituted until November 2019.

25    Thus, a Facebook derived perspective of the wider context in which the exchange concerned occurred is missing. Ms Manteit-Mulcahy was, however, able to supply by recollection and after causing internal investigations to be made within Tantex some of that wider context. Ms Manteit-Mulcahy’s recollection was imperfect. She thought that the exchange in question could not have occurred in June 2016, because her recollection was that Mr Shaw had been employed for about six months when it occurred, whereas her investigations disclosed he had been employed only from April 2016.

26    I am satisfied that the exchange occurred on 25 June 2016 as the Union alleged. However, I am also satisfied that, although she was mistaken about the date, Ms Manteit-Mulcahy did indeed remember the exchange and a history of prior dealings with Mr Shaw. It strikes me as inherently likely that one would remember the course of dealings with a managerially challenging employee as Ms Manteit-Mulcahy related but not at all improbable that the recollection might be imprecise as to precise dates of particular exchanges. Before the institution of the proceeding, Ms Manteit-Mulcahy had no reason for such precision. That is why I have described her recollection both as reasonable and imperfect.

27    The Union sought to exclude the introduction into evidence of those prior dealings. They do, however, provide background context and, in relation to an alleged contravention where it is necessary to prove a mental element, that context is highly relevant. It is not, as the Union also submitted, rendered irrelevant because some of the background context has a hearsay element. That derived Ms Manteit-Mulcahy from the Restaurant Manager of the Myer II restaurant does indeed have this quality but it was not tendered for an assertive purpose but rather for an operative purpose in terms of what operated on Ms Manteit-Mulcahy’s mind in the 25 June 2016 exchange.

28    Ms Manteit-Mulcahy’s state of mind is that of Tantex: s 793(2), FWA.

29    Ms Manteit-Mulcahy related, and I accept, that the exchange in question occurred against the following background:

(a)    In the month or so leading up to what she termed “the Alleged 25 June 2016 Post”, Tantex’s Restaurant Manager of the Myer II restaurant had advised her that they were finding Mr Shaw to be increasingly unreliable in his attendance at work for his rostered shifts. The Restaurant Manager had also advised her that Mr Shaw often, with little notice, called in sick when they did not believe he was sick or advised, on short notice, that he would be unable to attend a shift because of transport issues, or was arriving for work late;

(b)    From when Mr Shaw had commenced employment with Tantex in April 2016, she had observed, during her visits to the Myer II restaurant, that Mr Shaw was attending for shifts with part of his uniform missing and/or wearing a dirty uniform;

(c)    Due to the operational issues that resulted from Mr Shaw’s poor attendance at work, including the Restaurant Manager having to spend time having to try and fill the shift on short notice or at worst staff shortages on shift as a result of his absences, she spoke with Mr Shaw about why he was sometimes unable to attend for work and why, when he was attending for work, he could not do so on time;

(d)    Mr Shaw explained to her that he had to share a car with his mother, which caused him difficulty getting to and from his local train station for day shifts;

(e)    She and Mr Shaw had discussed the issue and it was agreed between them that he would be regularly rostered on night shifts. They agreed that the night shifts would be most appropriate for Mr Shaw, given that it meant he would easily be able to get a train home when he finished his shift in the morning and would be home in time for his mother to use the car during the day;

(f)    It was after she had agreed with Mr Shaw that he was to work overnight shifts that he sent the earlier post, saying he could not come to work for his shift that day;

(g)    She read the earlier post made by Mr Shaw. She formed the view that his inability to attend the rostered shift was not legitimate.

30    Based on her evidence, which again I accept, I also find that, when Ms Manteit-Mulcahy conducted the 25 June 2016 exchange with Mr Shaw, she:

(a)    believed, honestly, that the reason Mr Shaw had provided not to attend work was not legitimate and, in those circumstances, did not turn her mind to whether Mr Shaw was entitled to sick leave (the “Absolutely not” in the exchange, when read in context, is indicative of the depth and strength of her belief that the reason Mr Shaw had provided was not legitimate);

(b)    was aware (and tolerated managerially) that Crew Members swapped shifts amongst themselves so that a Crew Member who was rostered to work a shift could find a suitable Crew Member to work as a replacement with such swaps being approved by a Restaurant Manager or a Shift Manager;

(c)    intended that Mr Shaw could arrange a shift swap with a suitable replacement Crew Member;

(d)    had experienced, on and from 2013 when Tantex first took up a McDonald’s franchise, either personally or via reports from subordinate managers whose reports she regarded as reliable, circumstances where, at short notice, other employees called in sick when they were not. Such reports, which Ms Manteit-Mulcahy regarded as reliable, included reports that the allegedly sick employee had featured in photographs posted to social media showing them in apparently good health on a day in which they had claimed not to be able to attend work because of sickness. Her view as to such employees not being sick was also informed by her experience of circumstances where another person had called in claiming to be a parent and reporting an employee sick in circumstances where a later call to that employee’s parent disclosed that the parent had made no such call and was unaware of any sickness on the part of the employee;

(e)    had a general awareness of an entitlement of employees to sick leave (inferentially, based on her not questioning the existence of an entitlement where a medical certificate was produced) but was not aware of the specific provision in Div 7 of Ch 2 of the FWA in respect of personal/carer’s leave;

(f)    was aware that the exchange she had with Mr Shaw could be viewed by any member of the Facebook group but did not, because the exchange was a spontaneous one, formulate her responses to Mr Shaw with any audience other than him in mind.

31    Ms Manteit-Mulcahy also related in evidence that, what I took to be at the time of the exchange, and based on her experience and reports to her from subordinate managers, Tantex was experiencing frequent occasions of employees calling in sick with little or no notice with consequential difficulties in arranging replacement Crew Members and short staffing which affected the operation of its restaurants, including the Myer II restaurant. I accept this evidence and find accordingly.

32    In Ostrowski v Palmer (2004) 218 CLR 493, at 500 [1], Gleeson CJ and Kirby J observed:

Professor Glanville Williams said that almost the only knowledge of law that many people possess is the knowledge that ignorance of the law is no excuse when a person is charged with an offence. This does not mean that people are presumed to know the law. Such a presumption would be absurd. Rather, it means that, if a person is alleged to have committed an offence, it is both necessary and sufficient for the prosecution to prove the elements of the offence, and it is irrelevant to the question of guilt that the accused person was not aware that those elements constituted an offence.

[footnote reference omitted]

Tantex is charged not with an offence but with contraventions of civil penalty (“civil remedy”) provisions. However, the observation made by Gleeson CJ and Kirby J applies with equal force to a civil penalty provision contravention. Ms Manteit-Mulcahy’s ignorance of the specific provision in Div 7 of Ch 2 of the FWA in respect of personal/carer’s leave cannot therefore be exculpatory.

33    The Union alleged that the emphasised statement of Tantex via Ms Manteit-Mulcahy in the exchange constituted a representation, made to its Myer II restaurant employees that:

(a)    it was the responsibility of those employees to find a replacement if they were unable to attend for work due to personal illness; and/or

(b)    if those employees were unable to work due to personal illness, they were required to work unless they could find a replacement employee.

34    The Union submitted that such conclusions must follow because the statement was made in terms which were absolute and inconsistent with the workplace right constituted by an entitlement to take personal/carer’s leave. On these premises as to the alleged representations, the Union submitted that they were false, because the exercise of the entitlement was in no way qualified by an obligation on the part of an employee to find a replacement. The Union further submitted that Ms Manteit-Mulcahy must, given her managerial experience, have known that each of the alleged representations was false in this way or at least have been reckless as to its truth in making it. Its pleading alleged in the alternative that the representations were misleading.

35    Of course, there is no provision either in Div 7 of Ch 2 of the FWA or elsewhere in that Act which qualifies an entitlement to personal/carer’s leave by a need to find a replacement. In fairness, Tantex did not assert that there was any such qualification. It did, however, put in issue all of what the Union otherwise submitted made it guilty of the alleged contravention.

36    The Union did not submit that either s 360 or s 361 of the FWA intruded in relation to the proof or defence of an allegation of a contravention of s 345 of that Act.

37    I accept that a representation is “about” a workplace right if there is a requisite connection between that representation and the workplace right concerned: Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Postal Corporation [2017] FCA 1091, at [250], per Mortimer J.

38    In my view, when the statement containing the alleged representations is read in context, it is not a representation “about” personal/carer’s leave at all. The statement is premised upon the person to whom it is directed, Mr Shaw, having no occasion at all for the taking of such leave and does nothing more than highlight an employee’s obligation to attend for work as rostered or, in accordance with an indulgent workplace practice, convenient to Tantex, to arrange for a replacement. That is all that the statement is “about”. It is quite artificial to read the statement in isolation and out of context.

39    The statement was directed to Mr Shaw, not to employees generally at the Myer II restaurant. It was not, however, a private communication. Tantex, by deliberate choice, established the Facebook group such that other employees could read an exchange such as that in question. Even so, what any other person would read, if they cared to, would be an exchange not involving them and also one which plainly had to be read in the context of an evolving dealing between Ms Manteit-Mulcahy and Mr Shaw.

40    Neither regarded as a communication between those two nor as one which can be read by others in the group does the statement, read in context, contain the alleged representations. It does not, so read, amount to an affirmative statement that personal/carer’s leave or, as a layperson might term it, “sick leave”, is not available either at all or unless one arranges a replacement Crew Member. Tantex’s submission to this effect should be upheld. In my view, to hold otherwise would be to accept an inexact proof and indirect inference as to what, in context, was conveyed by the statement.

41    In relation to this particular alleged contravention, this conclusion about the alleged representation lends an academic quality to a consideration of the content of the mental element in s 345 of the FWA. However, against the contingency that my conclusion as to what is conveyed by the alleged representations is in error and because other contraventions of s 345 are alleged, it is desirable to address the subject.

42    The subject is not, as regard to Australian Education Union v Royal Melbourne Institute of Technology [2018] FCA 1985 (AEU v RMIT) discloses, entirely free from direct authority but as Wheelahan J makes plain in the judgment he delivered in that case, it was not necessary in the circumstances to reach any concluded views on it. His Honour stated, at [44]:

44.    In order to engage s 345 it must be shown that the false or misleading representation was made “knowingly or recklessly”. The state of mind required by s 345(1) of the Act attaches to the false or misleading quality of the representation, not the act of the making of the representation. What is required is that a false or misleading statement is made knowing it to be false, or recklessly indifferent as to its truth: Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (2015) 230 FCR 298 at 329 [161]. In CEPU v Australian Postal Corporation [2017] FCA 1091 at [257] Mortimer J stated that no authorities have considered the scope or operation of the mental element in s 345. I did not hear full argument on the content of the word “recklessly” in s 345 for the purposes of this urgent application. My preferred view is that what is arguably required is proof of subjective recklessness consistent with criminal law principles: Shop, Distributive and Allied Employees’ Association v Karellas Investments Pty Ltd (No 2) (2007) 166 IR 51 at 69-70 [86]-[92] (Graham J) (upheld on appeal without consideration of this issue: (2008) 166 FCR 562). See also: Australian Securities and Investments Commission v Mariner Corporation Ltd (2015) 241 FCR 502 at 552-6 [248]-[279]. However, it may be arguable that an objective element is imported: Fair Work Ombudsman v Ecosway Pty Ltd [2016] FCA 296 at [186]-[199], but noting that Ecosway concerned “reckless” in the different legislative context of s 357(2) of the Fair Work Act, and its legislative history

43    Commencing as one must by reference to the text, as read in context, of the provision is not just necessary but revealing. It reveals that this is not a case such as, notably, Cameron v Holt (1980) 142 CLR 342 or Murphy v Farmer (1988) 165 CLR 19 (Murphy v Farmer), where parliament has not expressly specified whether or not a mental element need be proved or whether it is merely sufficient to prove that a representation is in fact false or misleading. Thus, there is no need to rely on any presumption in order to conclude that proof of mens rea is an element of the proof of a contravention of s 345. Further, the choice of the formulation “knowingly or recklessly” avoids controversies which have attended the import of the word “wilfully” in offence or penal provisions, qv Iannella v French (1968) 119 CLR 84, at 93. The observation of the Full Court in CFMEU v BHP, at [161], confirms what a reading of s 345 would in any event suggest, which is that the alternative mental elements in that section each extend to the false or misleading quality of the representation.

44    As to the import of those alternatives, the same “knowingly or recklessly” formulation was considered in the analogous context of statement focussed offences in Comptroller-General of Customs v Woodlands Enterprises Pty Ltd [1996] 1 Qd R 589 (Woodlands Enterprises). In that case, Pincus JA, at 602, with whom Fitzgerald P and McPherson JA materially agreed, having referred to the meaning ‘“purposely or deliberately or intentionally untrue”’ adopted in Murphy v Farmer, at 29, observed, “‘knowingly’ imports I think about as strong a mental element as ‘false or wilfully misleading’ does”. As to “recklessly”, Pincus JA, at 603, considered that this alternative was sufficiently proved by a finding that the maker of the statement had “closed his eyes to the obvious or at least continued to claim rebates on the fuel knowing that it was likely that the supply of fuel was a sale, and not caring whether or not it was a sale”. This approach to what amounts to reckless is subjective in focus looking to the maker of the statement. That subjective focus is consistent with the like focus given by the alternative “knowingly”. It would be an odd construction of s 345 to conclude that one alternative “knowingly” required proof of a subjective intent whereas the other alternative, “recklessly” was sufficiently proved by an objective construct. Yet that was the submission made by the Union.

45    After Woodlands Enterprises came Banditt v The Queen (2005) 224 CLR 262 (Banditt), in which Gummow, Hayne and Heydon JJ offered, at [1] – [3], these observations about the meaning of recklessness as a criterion for legal liability:

1    The term “reckless” has various uses as a criterion of legal liability. This appeal turns upon one such use of the term in the New South Wales criminal law, but it is convenient first to consider some aspects of the civil law.

2    When “reckless” is used in applying the principles of the tort of negligence, the yardstick is objective rather than subjective. On the other hand, to sustain an action in deceit, fraud is proved when it is shown “that a false representation has been made (1) knowingly, or (2) without belief in its truth, or (3) recklessly, careless whether it be true or false”. But (3) is but an instance of (2) because, as Lord Herschell put it in Derry v Peek: “[O]ne who makes a statement under such circumstances can have no real belief in the truth of what he states.” This reasoning is akin to that which supports the evidentiary inference explained by Lord Esher MR as being that one who wilfully shuts his eyes to what would result from further inquiry may be found to know of that result.

3    To these expositions of the civil law by Lord Herschell and Lord Esher there may be added the following statement by Lord Edmund-Davies in his dissenting speech in Commissioner of Metropolitan Police v Caldwell:

“So if a defendant says of a particular risk, ‘It never crossed my mind,’ a jury could not on those words alone properly convict him of recklessness simply because they considered that the risk ought to have crossed his mind, though his words might well lead to a finding of negligence. But a defendant’s admission that he ‘closed his mind’ to a particular risk could prove fatal, for, ‘A person cannot, in any intelligible meaning of the words, close his mind to a risk unless he first realises that there is a risk; and if he realises that there is a risk, that is the end of the matter’.”

(Original emphasis.)

[footnote references omitted]

46    Subject to anything in other authorities referred to by Wheelahan J in AEU v RMIT, it seems to me that “knowingly” in s 345 of the FWA ought to be construed as meaning "purposely or deliberately or intentionally untrue" and the alternative “recklessly” ought to be construed as sufficiently proved only if the author of the representation has closed his eyes to the obvious as to the truth of the representation or made it knowing that it was likely that it was not correct or misleading and not caring whether it was correct or misleading, what one might term wilful blindness. That they are alternatives might be thought to suggest that the pleading in the statement of claim that the representations alleged were made “knowing they were false, or reckless as to their truth” was rolled up and duplicitous. However, no such point was taken for Tantex and it is possible to read the pleading as alleging contraventions in the alternative.

47    Of these other authorities, Shop Distributive and Allied Employees’ Association v Karellas Investments Pty Ltd (No 2) (2007) 166 IR 51 was decided under the Workplace Relations Act 1996 (Cth) and in respect of a provision the meaning of the mental element in which was affected by the importation of the Criminal Code 1995 (Cth). In Australian Securities and Investments Commission v Mariner Corporation Ltd (2015) 241 FCR 502, the meaning of the word “reckless” fell for consideration in the context of s 631(2)(b) of the Corporations Act 2001 (Cth). In that case, at [249], Beach J regarded the word as importing a subjective test with one of his Honour’s reasons for that being that it was cast as an alternative to “knows”. That reason is completely congruent with a like reason already given by me.

48    The last of the cases mentioned by Wheelahan J is Fair Work Ombudsman v Ecosway Pty Ltd [2016] FCA 296, at [186] – [199], which, as his Honour notes, arose in the different context of s 357(2) of the FWA, which has a singular legislative history which serves to reinforce a textual conclusion that “reckless” in the defence for which that subsection provides has an objective quality. As to the text, “reckless” is not cast as an alternative to “know” but rather as a cumulative element. The case is quite irrelevant to the construction of s 345.

49    Insofar as consistency of meaning of like words might be expected in a statute, the relevant contextual analogy is not with s 357(2) but rather with s 349 of the FWA. There, too, “knowingly or recklessly” are cast as alternative mental elements in relation to the making of a representation. The meaning I prefer to afford “recklessly” in s 345 also commends itself in relation to s 349 of the FWA and for like reasons.

50    It was put for the Union that s 345 of the FWA was, along with the other general protections found in Pt 3-1 of Ch 3, beneficial legislation and that this supported the affording of an objective rather than subjective meaning to “recklessly”. At the margin and where a constructional choice is open, having regard to text and context, the character of a provision may be of assistance. I doubt that a constructional choice is open in relation to “recklessly” as used in s 345 of the FWA. Assuming, however, that it is, while the conferral of the protections does serve beneficial ends, their contravention is attended with penal consequences. The latter feature would, conventionally, tend in favour of a construction that afforded a subjective, not an objective, content to “recklessly”. As is observed in Banditt, at [2], an objective standard in relation to recklessness is apt for a determination of negligence. That meaning is not apt where recklessness is an element of a finding to which penal consequences attach.

51    For these reasons, I reject the Union’s submission that “recklessly” in s 345 of the FWA is to be determined objectively. It is, instead, to be determined by reference to the author of the alleged representation to the end of deciding whether it has been proved by the person alleging the contravention that the person making the representation did so knowing that it was likely that it was not correct or misleading and not caring whether it was correct or misleading. It follows that I share the view expressed preferentially but provisionally by Wheelahan J in AEU v RMIT.

52    Read in context, the representation which the highlighted statement in the exchange of 25 June 2016 conveyed was that an employee who was not genuinely sick was obliged to attend for work as rostered, unless he arranged a replacement. That representation was knowingly made by Ms Manteit-Mulcahy, it was true and known by her to be true. There was nothing reckless about it.

53    The Union has not proved any contravention of s 345 of the FWA arising from the exchange of 25 June 2016. The exchange did not convey the representations alleged.

Second and Third Alleged Representations – 21 December 2018

54    As it did with its Myer II restaurant, Tantex maintained, for like purposes, a Facebook group for its Central Station restaurant. This Facebook group was likewise accessible by managers and employees at that restaurant generally. It was certainly used not just for managerial communication with individual employees but also for managerial communication with employees at that restaurant generally. Once again, Tantex’s choice of this medium for staff communication was not just convenient but, inferentially, considered apt for the predominant age group of its Crew Members.

55    In December 2018, one of Tantex’s managers at the Central Station restaurant was Ms Crystal Monica Locke. She had been employed by Tantex as a Restaurant Manager since 12 June 2017, initially at the Central Station restaurant, then at its Queen Street restaurant, before moving back to the Central Station restaurant in August 2018.

56    By the time of trial, Ms Locke had left Tantex’s employ (in May 2019). She gave both affidavit and oral evidence, the latter, as with each witness called at trial, via the Microsoft Teams audio-visual medium. I have already referred to the limitations of this medium. Making due allowance for these, I thought Ms Locke gave honest oral evidence, candidly expanding on and explaining her affidavit evidence. Indeed, it seemed to me from her oral evidence that, in hindsight, she would have chosen different language to convey her intentions to subordinates when making the posts in question to the Central Station Facebook page. I am quite sure that she did not set out to make knowingly false or misleading representations to subordinates under her supervision at that restaurant. Indeed, I am quite sure that she did not knowingly make such representations. But s 345 of the FWA also looks to recklessness. Before detailing the posts containing the representations in question and whether the Union has proved the recklessness alternative, it is necessary to outline the duties of a Restaurant Manager and to give some background detail about the staffing situation at the Central Station restaurant as at December 2018.

57    As a Restaurant Manager at the Central Station restaurant, Ms Locke was primarily responsible for the day to day running of that restaurant. Her duties included ensuring quality control, maintaining profitability of the restaurant, assisting Crew Members with answering or addressing their various employment-related questions and requests and rostering. She was also responsible for recruitment and induction of Crew Members up until Tantex appointed a People and Operations Manager in 2018.

58    The Central Station restaurant had two entry points for customers, one inside the railway station area, which opened at the same time as did the railway station (4.30 am), the other external to the railway station, which was accessible 24 hours per day. Inferentially, staff rostering therefore had to be sufficient both to meet the demands of 24 hour operation as well as the greater crowds one might expect to develop once the railway station opened. Ms Locke also performed the role of Shift Manager when she was on duty at the restaurant, save for, usually, two days per week when she undertook administrative duties. Other individuals were employed to undertake the role of Shift Manager either when she was not present or undertaking administrative duties, thereby ensuring that there was a manager on duty for each shift at the restaurant.

59    During the period of Ms Locke’s employment with Tantex, all Crew Members were employed either on a part time or a casual basis. Again, over that period, and initially as part of the job application and hiring process, Crew Members provided to Tantex their standard days and standard hours on which they were available to be rostered for a shift (Standard Availabilities). These were entered on a database which was used by a manager such as Ms Locke for rostering purposes.

60    Rosters were prepared by reference to Standard Availabilities and released in draft at least two weeks in advance of a given shift. They were released via a hard copy document placed at the restaurant, known as the “Availability Diary”. Separate such diaries were prepared and released for part time and for casual employees. Tantex’s expectation, known to employees, was that an employee would annotate the Availability Diary concerned with dates on which they were not available because, for example, of forthcoming holidays or exams. Ms Locke then used the Standard Availabilities, as amended by entries in the Availability Diary, to prepare shift rosters for a given week, which was released five days in advance of the roster period. The rosters were released to employees by posting on a McDonald’s portal called “metime”.

61    By December 2018, shift swaps by Crew Members at the Central Station restaurant, after the release to “metime” of a weekly roster, had, in Ms Locke’s experience as Restaurant Manager, become a regular occurrence. On average, she was receiving about two such requests per day. The practice was not forbidden but employees were supposed to obtain in advance her permission (or that of a Shift Manager if Ms Locke was not on duty) for a swap. In her experience of dealing with such requests, a frequent reason for shift swaps was a failure to record availability in the Availability Diary. A particular concern, which I accept Ms Locke genuinely had, in relation to shift swaps and for a related need for managerial approval of them was to ensure that Tantex did not breach the rostering requirements in the Agreement by, for example, not providing for sufficient breaks between shifts. In other instances, by December 2018, about three times per week after the release of the weekly roster to “metime”, Crew Member employees would, in Ms Locke’s experience (either personally or as relayed to her by the Shift Manager concerned), just report unavailability to work a rostered shift without making any shift swap request, thereby leaving it to her to try to arrange an alternative employee to fill the gap in the roster.

62    Shift swap requests or late notifications of unavailability were not, in Ms Locke’s experience, unique to the Central Station restaurant during the period of her employment with Tantex. As a remedial managerial measure, in around the second half of 2017, Tantex implemented, via the Facebook group for a given restaurant, what was known as a “roll call”. This involved the relevant manager conducting a “roll call” each day via the restaurant’s Facebook group, for this purpose “tagging” employees in a Facebook post the day before a rostered shift. The intent of this, as Ms Locke related, and I accept, was that “tagging” would be a trigger for the employee to check the page and be reminded that they were rostered to work the following day. Ms Locke adopted this Facebook “tagging” approach to her management of staff at the Central Station restaurant. Her estimate, the accuracy of which I accept, is that, by December 2018, following a “roll call” using this method, she was being notified by two Central Station restaurant employees each day that they were unable to attend their rostered shifts the next day.

63    Ms Locke related in evidence the practical managerial challenges, unsurprising but undoubtedly difficult to address I thought, of seeking at short notice to address absences of employees from rostered duty – contacting other employees in Tantex’s pool of part time or casual employees to see if they might be available, seeing if an employee already on shift was per chance able and willing to work an extended shift in order to fill an unexpected gap and the like.

64    To these managerial challenges must be added those which Ms Locke related concerning “sick leave”. On this subject also I accept her evidence as accurate. Her understanding was that the Agreement provided for an entitlement to sick leave. She did not associate the source of the entitlement as the FWA (ie personal/carer’s leave).

65    The practice at the Central Station restaurant which was supposed to be followed by employees in relation to the taking of sick leave was that the employee was supposed to contact her, or at least a Shift Supervisor in her absence, via the restaurant telephone to notify a sick leave absence. Following such a telephone call, she would then review which employees were available to fill the shift and then call those who were available to see whether they could replace the sick employee, or asked employees on shift if they could stay longer. In other words, she adopted a like practice to that used to address other unexpected absences.

66    Ms Locke related, and I accept, that, in her experience, by December 2018, it was becoming increasingly common for employees to notify a Manager of their absence due to being allegedly sick by writing a post on the Central Station Facebook group or sending a direct message via the Facebook Messenger application to a Manager. (The direct message was similar to an email.) Ms Locke’s estimate, which I accept as accurate, was that, by this time, around 70% to 80% of sick calls at the Central Station restaurant were notified via Facebook or Facebook Messenger. She offered an example of this practice in an annexure to her affidavit. She related that such posts did not always come to her attention until either shortly before or even after a shift had started, leaving little, if any, time for her to arrange a replacement and consequential Crew Member shortfalls for that shift.

67    In response to this increasing use of Facebook or Facebook Messenger both Ms Locke as well as others in managerial positions had, over the second half of 2018, approximately once per week, posted messages on the Central Station Facebook group reminding employees of the requirement to telephone the Central Station restaurant directly if they were unable to attend a shift due to sickness, rather than posting a message on Facebook. Such posts were “pinned” to the top of the Central Station Facebook group for a period of time in or around December 2018. The effect of that was that they remained at the top of the page to draw attention to them.

68    Ms Locke further related, and I accept, that, in the two to three weeks leading up to 21 December 2018, she experienced approximately 3 to 5 employees per week at the Central Station restaurant trying to swap shifts after they had not updated their Standard Availabilities (by making entries in the Availability Dairies) within the required two-week notice period prior to the release of the roster. Her experience was that the employees concerned generally attempted to shift swap on the Central Station Facebook group. These attempts at swapping shifts were causing her to not have enough employees on shift.

69    Ms Locke’s estimate, in respect of what I took to be this same period leading up to 21 December 2018, the accuracy of which I accept, was that 3 to 4 employees per week were also asking to swap a shift, having their request declined (because of the range of potential reasons for a replacement employee not being suitable, such as age, skills or number of hours that the proposed replacement had already worked that week), and then calling in sick on short notice. Ms Locke related, and I accept, that Crew Members were often only trained to work on either the front counter or back area in the restaurant. Within the front counter and back area in the Central Station restaurant, there were specific “stations”. A front counter station, Ms Locke related, is a particular area, such as register, fries, assembly (bagging orders), drinks and dining room (including cleaning customer tables). A back area station, she related, is a particular area, such as grills, fryers, wash-up and assembly (assembling burgers). Ms Locke related, and I accept, that this means that not all Crew Members are interchangeable. In turn, in the prevailing circumstances related by her, this resulted in her having sometimes to decline requests for shift swaps due to the employees' skills not being like for like.

70    Ms Locke’s further estimate, which I also accept as accurate, was that, over this same period leading up to 21 December 2018, there was at least one employee rostered to work the opening shift (from 5.00 am) who did not work their rostered shift.

71    Ms Locke related, and I accept, that by and as at 21 December 2018, she had formed the view that some employees at the Central Station restaurant were calling in sick when they did not want to work, rather than because they were genuinely ill. By 21 December 2018, Ms Locke had begun to question the legitimacy of the sickness of some of the employees that called in sick, particularly when the sick call occurred after the employee had already unsuccessfully tried to swap a shift. Her views were also informed by discussions with the parents of employees who claimed to be sick and by photos of supposedly sick employees on Snapchat and Instagram internet platforms, as shown to her by other employees, which suggested to her that the particular employee had not been sick as claimed. I accept that these views were held, and honestly held, by Ms Locke at the time.

72    I consider that the foregoing account of the prevailing practices and procedures at the Central Station restaurant and Ms Locke’s experiences and views is relevant to and puts in context the representations in Facebook posts on 21 December 2018 which the Union alleges constitute contraventions of s 345 of the FWA.

73    The evidence tendered by the Union establishes, and it is not, in itself, controversial, that on 21 December 2018, Ms Locke posted these two messages to the Central Station Facebook group:

(a)    (the First 21 December 2018 Post):

Christmas Day and Boxing Day shifts are final

There are no shift swaps or sick calls on public holidays

Thank you

(g)    (the Second 21 December 2018 Post):

*4 hours is what we ask for

2 hours is the base expectation however, according to the enterprise agreement

We are a 24 hour trading restaurant

I will not accept a sick call past 10pm for an open

[sic]

74    On the evidence, each of these posts was made by Ms Locke within the scope of her actual authority as Tantex’s Restaurant Manager of its Central Station restaurant. Her conduct, including her intentions, are those of Tantex: s 793(1)(a), FWA.

75    As to the First 21 December 2018 Post, the Union alleged that Tantex, by Ms Locke, had represented to its Central Station restaurant employees that:

•    they were not entitled, permitted or allowed to be absent from work due to illness or injury on Christmas Day or Boxing Day; and/or

•    they were not entitled, permitted or allowed to be absent from work due to illness or injury on public holidays.

76    Even giving full measure to context, including all of the prevailing practices, antecedent events and experiences related by Ms Locke, I do not accept Tantex’s submission that the First 21 December 2018 Post was not addressing personal leave but rather the difficulty of finding suitable replacement employees to work in lieu of employees who did not want to work their rostered shift on public holidays. The latter, not just may but more likely than not, was Ms Locke’s motivation for making the post but that is not what the post represented. What the post represented is to be determined by how it would be understood by an ordinary and reasonable person reading it. Insofar as the post contains workplace specific jargon (“open” – apparently opening or start of a given shift the following day) one must, in my view, take that reader to have an understanding of that jargon.

77    This was a generic post, meant to be read by each of the employees at the Central Station restaurant, each of whom was able to access the Facebook group, not part of an exchange with a particular employee which necessarily fell to be read against the background of an individually specific course of dealing. I readily accept, as Tantex submitted, that the post was “a stream of consciousness composed against the pressures of the day addressing a situation that had presented itself” but it does not follow that it does not mean what it says or, more pertinently, convey each of the representations alleged by the Union. To the contrary, I consider that it does convey those representations and find accordingly.

78    The Union pleaded that the representations in the First 21 December 2018 Post were about the workplace right of Central Station employees to the benefit of:

(a)    Div 7 of Ch 2 of the FWA; and/or

(b)    s 96 and s 97 of Div 7 of Ch 2 of the FWA.

It further pleaded that these representations, and each of them, were false or misleading because employees at the Central Station restaurant:

(a)    were entitled to take paid personal leave in accordance with s 96 of the FWA, including on Christmas Day and Boxing Day; and

(b)    were entitled to take paid personal leave in accordance with s 96 of the FWA, including on public holidays.

79    In my view, each of the representations was “about”, in the sense already discussed, the workplace right to personal leave in accordance with s 96 of the FWA. Further, each was false in the ways particularised by the Union.

80    Ms Locke stated that she did not have a specific recollection of her composing and posting either the First 21 December 2018 Post or, for that matter, the Second 21 December 2018 Post. I thought this was an honest statement and I accept its truth. She had no reason at the time to think that she would need in the future, let alone 18 months in the future, to have to recall these operationally reactive posts. Her cross-examination confirmed, however, what her affidavit evidence suggested, which was that she did nonetheless have a good recollection of the circumstances prevailing at the time in relation to the rostering of staff at the Central Station restaurant and the difficulties presented by late sick calls or such calls being posted to the Facebook group rather than phoned in directly to her or to a Shift Manager. I have no doubt at all that Ms Locke was at the time experiencing a high degree of frustration with the operational effects of these practices by Crew Members. Effectively, she admitted as much in cross-examination. I also accept that she had cause to suspect that some of the apparent sick calls did not reflect any genuine sickness.

81    The Union alleged that Ms Locke made the First 21 December 2018 Post representations knowing they were false, or reckless as to their truth. It offered these particulars:

 1.    Ms Locke held a managerial position with Tantex.

2.    The subject matter of the First 21 December 2018 Post was expressed to be a statement of the legal entitlements of Tantex employees.

3.    The representations were made to employees in circumstances in which it can be inferred that Ms Locke expected the employees to rely on them.

4.    Had Ms Locke made reasonable enquiries as to the truth or otherwise of the representations, she would have readily identified that the representations were false.

82    These particulars are each established on the evidence. They would be apt to establish recklessness if it were to be measured objectively but that is not, for reasons already given, its measure in relation to s 345 of the FWA.

83    I have already mentioned that I do not consider that Ms Locke knowingly made false representations. I do not consider that she was actively dishonest in making them.

84    A more difficult question is whether, on the evidence, she has been proved by the Union to have made the representations recklessly in the sense apt for a penal case. A critical and, it must be observed in Ms Locke’s favour, frank admission which she made in cross-examination was that she knew as at 21 December 2018 that an employee was entitled to call in sick and to do so after 10 pm. She went further and admitted that she would in practice have accepted such a call. She made like admissions in relation to the other Facebook post. Posts to Facebook, like emails, undoubtedly offer a benefit in spontaneity of near instantaneous communication that handwritten or printed circulars on a staff notice board or letters do not but they can at the same time carry with them the burden of a loss of time for reflective thinking about what one is communicating. Unfiltered by reflection, a resultant, reactive “stream of consciousness” can, and in this case did, convey representations which are inaccurate. These were glaringly inaccurate. Knowing as Ms Locke did that employees were entitled to take sick leave and entitled so to do after 10 pm, each of the 21 December 2018 posts was careless not just about whether it be true or false but also, given that knowledge, made in circumstances where Ms Locke cannot, given the language she employed, have had any real belief in the truth of what she stated. Inferentially, knowing the true position and also knowing that the posts would be relied on by employees as a statement of the true position she just closed her eyes to the obvious when she made each of the posts that day. In this case, the pleaded representations were made in the First 21 December 2018 Post, were false in the ways alleged by the Union and were made recklessly. They were intended to be read by employees at the Central Station restaurant generally. They carried with them all the weight of local managerial authority. That they were spontaneous and reactive to frustration is explanatory but not exculpatory.

85    I have reached a like conclusion about the Second 21 December 2018 Post for like reasons.

86    As to this post, the Union alleged that Tantex, via Ms Locke, had represented to its Central Station restaurant employees that:

(a)    they were not permitted to call in sick after 10pm if they were rostered on an open shift the following day; and/or

(b)    Tantex was legally entitled to require an employee who called in sick after 10pm to attend for work if they were rostered on an open shift the following day.

87    I agree that the Second 21 December 2018 Post conveyed each of these representations. I also agree that these representations were “about” the workplace right of those employees to the benefit of ss 96, 97 and 107 of Div 7 of Ch 2 of the FWA.

88    In my view, each of these representations was indeed, as alleged, false because those employees:

(a)    were entitled to take paid personal leave in accordance with ss 96, 97 and 107 of the FWA, including by notifying Tantex after 10 pm at night that they would not be attending work the following day due to illness or injury; and/or

(b)    were entitled to take paid personal leave in accordance with ss 96, 97 and 107 of the FWA on public holidays.

89    The Union particularised why the representations in the Second 21 December 2018 Post were knowingly or recklessly false in like fashion to those it furnished in relation to the First 21 December 2018 Post. Once again, I do not consider that Ms Locke knowingly made these false representations but she did, for the reasons already given, make them recklessly.

90    For these reasons, I conclude that the Union has proved contraventions of s 345 of the FWA constituted by the making of the alleged representations in the First 21 December 2018 Post and the Second 21 December 2018 Post.

The 5 January 2019 Representation

91    As with its other restaurants, and for like reasons, Tantex established a Facebook group for its Windsor West restaurant. On 5 January 2019, Tantex, by its General Manager, Mr Christopher Crenicean, posted to the Windsor West Facebook group a message in the following terms (the 5 January 2019 Post):

As we all LOVE the legislation and are all clearly so hard done by …. let me clarify for you the below ENTITLEMENT!!!

We are more than happy to go with the standard 10 minute break policy as below for those crew who are all over Facebook tagging each other and commenting.

But let me clarify for you how this 10 minute break rule actually works.

If you work longer than 4 hours, you become eligible for a ‘10 minute break’.

So for majority of crew you actually probably don’t ever qualify for a ‘10 minute break’

What this means is that if we implement this over our current situation, on your shift – this 10 minute break would be the only time you would ever be permitted to have a drink or go to the toilet. So I hope to god you don’t get thirsty on your next shift because we just wouldn’t be able to allow a drink. Fair is Fair right?

But as we go above and beyond for our people and we like to treat you guys much better than this, we allow ALL our employees irrelevant of shift length to have a drink of water as you require and have a toilet break on shift as you require.

Are we really such bad guys? Honestly!!!

It actually works better in our favour to follow this ‘legislation’ and keep you all working non stop.

Hope this clarifies anyone’s raging concerns!

[sic, image followed and is not reproduced]

92    Mr Crenicean commenced employment with Tantex in 2013, initially as a Supervisor, managing the day to day operations of its then number of McDonald’s franchised restaurants. He became General Manager in about April 2017, when that position was created. Inferentially, that creation was linked to an increase in the size of Tantex’s operations as the number of its franchised restaurants grew. As General Manager, Mr Crenicean is responsible for the running of all of Tantex’s McDonald’s restaurants. His responsibilities include financial reporting, ensuring overall compliance and managing the operational side of the business to ensure that the restaurants are running as efficiently and cost effectively as possible. Since May 2018, he has had a People and Operations Manager reporting to him and, from April 2019, a Compliance and Operations Manager has also reported to him, in addition to the now multiple occupants of Supervisor positions (there are now more than one). In Tantex’s now hierarchy, Supervisors oversee a number of restaurants with the Restaurant Managers concerned reporting to them. Ms Manteit-Mulcahy is Mr Crenicean’s immediate, and only, superior within Tantex.

93    From the time of his commencement until around April 2019, Mr Crenicean engaged in an active program of restaurant visits. His estimate, which I accept as accurate, was that, over this period, he visited each restaurant, including the three in question in this proceeding, at least once per week. During these visits, he assisted the employees working in the restaurant concerned (both the Crew Members and Managers) by providing one-on-one coaching to help them improve in their roles and, in turn, improve the efficiencies and operations of that restaurant. He also visited the restaurants during busy periods throughout the day and night, including at breakfast, lunch and dinner times, to support the staff. Mr Crenicean was not, over this period, a remote figure as far as subordinate employees were concerned.

94    Over the period from 2016 to 2019 with which this proceeding is concerned, Mr Crenicean was aware that employment at Tantex’s restaurants was governed by the Agreement (and remained so until February 2020 when the Agreement was terminated). He admits that he was not, however, familiar with the terms of clause 29 of the Agreement in relation to paid breaks. In my view, the 5 January 2019 Post is proof perfect of that.

95    Tantex admits that, by Mr Crenicean, it made the 5 January 2019 Post. Mr Crenicean’s actions and state of mind are, for the purposes of the alleged contraventions in relation to him, those of Tantex: s 793, FWA.

96    The Union alleges that by the 5 January 2019 Post, Tantex, by Mr Crenicean:

(a)    represented that the Windsor West Employees were entitled to a 10 minute break if they worked more than four hours;

(b)    represented that the majority of the Windsor West Employees did not ever qualify for a 10 minute break;

(c)    represented that if Windsor West Employees were afforded a 10 minute break that break would be the only time they would ever be permitted to have a drink or to go the toilet; and 7

(d)    represented that Tantex could lawfully prevent Windsor West Employees from drinking water or using the toilet outside of their scheduled breaks.

[sic]

97    As to these alleged representations, the Union alleged that (a), (b) and (c) were made expressly, whereas (d) was made partly expressly and partly by implication. To the extent it was said to arise by implication, the Union alleged that it was implied from Mr Crenicean’s status as a managerial employee of Tantex and from the context of the post, which was expressed to be in relation to the “legislation” and the “entitlement”.

98    The Union alleged that these representations were false, in that:

(a)    Windsor West Employees were entitled, under the Agreement, to a 10 minute paid drink break if they worked four hours or more (not more than four hours);

(b)    the majority of the Windsor West Employees were entitled to a 10 minute paid drink break under the Agreement because their shifts were at least four hours in duration;

(c)    if Windsor West Employees were afforded a 10 minute paid drink break in accordance with the terms of the Agreement, Tantex was not entitled as a matter of law, to refuse to permit employees to have a drink or go to the toilet outside of the 10 minute paid drink break; and

(d)    Tantex was not entitled, as a matter of law, to prevent Windsor West Employees from drinking water or using the toilet outside of their scheduled breaks because:

(i)    Windsor West Employees were entitled to breaks in accordance with cl 29 of the Agreement; and

(ii)    Windsor West Employees were entitled to drink water and use the toilet outside of the breaks prescribed by cl 29 of the Agreement where necessary to ensure that they had a safe and healthy workplace.

The following were offered as particulars in respect of these alleged falsehoods:

(a)    As to paragraph (a), the Union relied on clause 29 of the Agreement.

(b)    As to paragraph (b), the Union relied on clause 29 of the Agreement and the roster for Windsor West, pursuant to which it alleged most employees worked shifts of at least four hours.

(c)    As to paragraph (c), the Union alleged this followed from the Work Health and Safety Act 2011 (Qld) (WHS Act).

(d)    As to paragraph (d), the Union alleged this followed from clause 29 of the Agreement and the WHS Act.

99    In respect of the 5 January 2019 Post, the Union alleged that representations (a) and (b) were “about”:

(a)    the workplace right of Windsor West employees who were covered by the Agreement to the benefit of cl 29 of the Agreement; and/or

(b)    the effect of the exercise by Windsor West Employees who were covered by the Agreement of their workplace right to the benefit of cl 19 of the Agreement.

[sic]

As to representations (c) and (d), it alleged that these were “about”:

(a)    the workplace right of Windsor West Employees who were covered by the Agreement to

(i)    the benefit of cl 29 of the Agreement; and/or

  (ii)    the benefit of the Work Health and Safety Act 2011 (Qld); and/or

(b)    the effect of the exercise by Windsor West Employees who were covered by the Agreement of:

  (i)    their workplace right to the benefit of cl 29 of the Agreement; and/or

(ii)    their workplace right to the benefit of the Work Health and Safety Act 2011 (Qld).

100    The Union alleged that Tantex, by Mr Crenicean, made each of these alleged representations knowing they were false, or being reckless as to their truth, offering the following particulars:

(a)    Mr Crenicean was the General Manager of Tantex and had knowledge of the existence of the Agreement.

(b)    The subject matter of the 5 January 2019 Post was expressed to be a clarification as to a legal entitlement of Tantex employees.

(c)    The representations were made to employees in circumstances in which it can be inferred that Tantex expected the employees to rely on them.

(d)    Had Mr Crenicean made reasonable enquiries as to the truth or otherwise of the representations, he would have readily identified that the representations were false.

101    As with the other Facebook posts with which this proceeding is concerned, there is a background history to the 5 January 2019 Post which is relevant so as to understand the context in which that post and thus the alleged representations were made. That there is a context, and the necessity for revealing it, is evident from the statement, “those crew who are all over Facebook “tagging” each other and commenting” in the post and from the tone of the post. Impressionistically, the tone is sarcastic, an impression the accuracy of which was frankly confirmed by Mr Crenicean in evidence.

102    On the whole of the evidence, it is inherently more likely than not, and I find, that the subject of entitlement to employees to a 10 minute break, and to toilet or drink breaks in any event, arose against the background of heightened interest by the Union in the working conditions at Tantex’s and other McDonald’s branded restaurants for the purposes of negotiating a new enterprise agreement covering workers in these restaurants.

103    On 4 January 2019 the Union made a post to its Facebook page, related below, about 10 minute breaks. Mr Crenicean did become aware of that post before he made the 5 January 2019 Post.

104    This background of heightened industrial interest in working conditions at McDonald’s branded restaurants and, in particular, the provision of breaks in accordance with clause 29 of the Agreement was, I thought, also revealed expressly in, or by necessary inference from, the evidence of Ms Staines. Ms Staines’ perspective was that of a Crew Member employee encountering all of the demands of delivering fast food service in an at peak meal times busy restaurant but none the worse for that in terms of accuracy if one remembered the benefits and limitations of this perspective. The benefit was first hand, albeit subjective experience, the burden was an absence of managerial perspective or detachment. I consider that she was an honest witness.

105    Mr Crenicean, I thought, was an essentially honest witness although he was I thought defensive in cross examination about what he had meant by the 5 January Post, his then understanding of entitlements to breaks and the deletion of the Facebook pages. Inferentially, given his rise within Tantex as its chain of franchised restaurants expanded, he was regarded by Ms Manteit-Mulcahy as an effective Manager. He struck me as having a good understanding, based on personal experience, of various Crew Member tasks and as being, understandably, performance result orientated rather than attentive to the detail of the specifications in the Agreement and the WHS Act. The sarcasm in the 5 January 2019 Post might well, I thought, be explicable by a misunderstanding born of this lack of attention to such detail. His self-confessed, later ascertainment of the true position in relation to the taking of 10 minute breaks lent, I thought, a defensive quality both to contemporary action on his part, notably, deleting Facebook groups and to the tone of his evidence.

106    In November 2018, the Union shared information on Facebook about its understanding of the right of McDonald’s employees to receive a paid 10 minute break for shifts of 4 hours or more. An understanding as to the existence of such an entitlement prompted Ms Staines to take such a break on shift later in 2018. Her entitlement so to do was questioned managerially by the Manager of the Myer II restaurant. The Union continued into the New Year, 2019, to post on its Facebook page its understanding as to 10 minute break entitlements. On 4 January 2019 the Union stated in a post:

We’ve notified the first set of stores to McDonald’s for immediate implementation of paid 10 minute breaks. It’s the law and until now no- one has held them to account. If you can’t see your McDonald’s store on this list, it’s because a member hasn’t asked for it to be fixed yet. If you want your outlet to be on next week’s list, join up and let us know your outlet. We exposed this, we’re fixing it. Join the fighting union. www.raffwu.org.au/membership

Maccasrevolution

#fightbackwithRAFFWU

[sic]

107    The Union’s 4 January 2019 post was drawn to the attention of Mr Crenicean via SMS, so he related and I accept, by a Shift Manager at the Windsor West restaurant the following day with a comment, to the effect of: “Some of the crew on my shift are talking about it and are wanting a break”. Once again, Mr Crenicean’s relating this had a hearsay quality as to the content of the SMS but it was tendered for operative, not assertive, purposes and, as such, relevant, very relevant in my view, to his state of mind. That is because, in my view, the receipt of this intelligence via SMS was a tipping point or catalyst for Mr Crenicean and resulted in his making the 5 January 2019 Post. That post was reactive to a situation which had been building within Tantex’s workforce generally since November 2018. Given Mr Crenicean’s then overarching managerial role within Tantex’s restaurant operations, he was, inferentially, sensitive to this development. Tantex’s confession to what can only be regarded as a systemic denial of 10 minute breaks to Ms Staines in contravention of the Agreement during the course of her employment at the Myer II store and the terms of the 5 January 2019 Post are, more likely than not, and I find, not coincidental. When a General Manager misunderstands the true position under a governing enterprise agreement, such systemic denial is hardly a surprising consequence.

108    Mr Crenicean, I find, made the 5 January 2019 Post very deliberately and with the intention that it be read by employees generally at Tantex’s Windsor West restaurant and understood by those employees as conveying the true position in relation to the taking of 10 minute breaks in particular and drink or toilet breaks generally.

109    In my view, the 5 January 2019 Post did contain representation (a) as alleged by the Union, ie a representation that the Windsor West restaurant employees were entitled to a 10 minute break if they worked more than four hours. Further, that representation was, on the true construction of clause 29.1.1 of the Agreement, false. The meaning and effect of that clause was that, if an employee worked between 4 and 5 consecutive hours, the employee was entitled to a 10 minute, paid drink break.

110    Tantex did not dispute that the 5 January 2019 Post contained such a representation and that this was the true construction of the Agreement. Rather, it invited the Court to dismiss what it described as a “mis-statement” and “trifling”. In his regard, it relied on what it submitted was the “de minimus principle” (derived from the Latin maxim, de minimus non curat lex – the Law does not concern itself with trivialities), referring by way of example to the recognition of the maxim and a discussion of cases involving its application by Gordon J when a judge of this Court in Georges v Seaborn International (Trustee) (2012) 288 ALR 240 (Georges v Seaborn International), at [132] – [133]. Tantex submitted that, “The mis-statement over the circumstance giving rise to the entitlement to a 10 minute paid break (the completion of 4 hours or the completion of more than 4 hours) was trifling”.

111    With respect, some care needs to be taken with the judgment given in the original jurisdiction in Georges v Seaborn International, as an appeal against that judgment was allowed: Georges v Seaborn International Pty Ltd (2012) 206 FCR 408. However, the correctness of her Honour’s observations in relation to the de minimus maxim is not expressly gainsaid in any of the judgments delivered in the appellate jurisdiction.

112    Of the cases cited by Gordon J in Georges v Seaborn International, the most pertinent, in my view, in understanding the content and application of the maxim called in exculpatory aid by Tantex is Shipton, Anderson & Co v Weil Brothers & Co [1912] 1 KB 574 (Shipton, Anderson v Weil Bros). That is because it arose against the background of an alleged breach of an agreement, a term incorporated by statute into that agreement and the application of the maxim to the construction and application of the agreement and of the statutory term. Of course an enterprise agreement to which the FWA applies is not a private contract but there are, nonetheless, some apt analogies and contrasts to be drawn in my view.

113    The facts of Shipton, Anderson v Weil Bros, of which the headnote provides an accurate summary, were as follows. Under a contract for the sale of a cargo of wheat weighing 10% more or less than 4,500 tons, the plaintiff sellers, Shipton Anderson & Co, tendered a cargo weighing 55 lbs. more than the maximum quantity of 4,950 tons. The sum payable for the 55 lbs. at the contract price would have been about 4s, but the sellers never claimed payment thereof. The defendant buyers, Weil Bros & Co rejected the whole cargo solely upon the ground that the quantity tendered was 55 lbs. in excess of the contract quantity. Mr Justice Lush held that, as the quantity in excess was so trifling and the sellers had not claimed the price thereof, the sellers had substantially performed the contract, and the buyers were not entitled to reject the cargo under s 30(2) of the Sale of Goods Act 1893 (UK) (Sale of Goods Act), which provided that, “where the seller delivers to the buyer a quantity of goods larger than he contracted to sell, the buyer …. may reject the whole”. In so doing, Lush J both adopted a business efficacy construction of the contractual term providing for the delivery of a particular weight range as well as a purposive construction of s 30(2) of the Sale of Goods Act. As to the former, Lush J stated, at 576, “the excess quantity is trifling, so trifling that it is quite impossible to suppose that any business man would regard it as in any way affecting the substance of the contract or as making the contract any the more or any the less an advantageous contract to enter into”. As to the latter, Lush J stated, at 577, “the right to reject is founded upon the hypothesis that the seller was not ready and willing to perform, or had not performed, his part of the contract. The tender of a wrong quantity evidences an unreadiness and unwillingness, but that, in my opinion, must mean an excess or deficiency in quantity which is capable of influencing the mind of the buyer. In my opinion, this excess is not”. Critical to the outcome was that the seller had never sought payment based on the excess weight delivered, only payment based on the range for which the contract provided.

114    Recently, in Qantas Airways Ltd v Australian Licensed Aircraft Engineers Association (No 2) [2020] FCA 951, at [16] – [17], Flick J offered an accurate, helpful summary, derived from earlier authorities, of the principles which attend the construction of an enterprise agreement, which I respectfully adopt:

16    In construing an award or an enterprise agreement the task is one of construing the document itself but doing so in a practical manner and within the industrial environment in which it was drafted: Kucks v CSR Ltd (1996) 66 IR 182 at 184 (“Kucks”). In a passage oft cited, Madgwick J there summarised this approach as follows:

Legal principles

It is trite that narrow or pedantic approaches to the interpretation of an award are misplaced. The search is for the meaning intended by the framer(s) of the document, bearing in mind that such framer(s) were likely of a practical bent of mind: they may well have been more concerned with expressing an intention in ways likely to have been understood in the context of the relevant industry and industrial relations environment than with legal niceties or jargon. Thus, for example, it is justifiable to read the award to give effect to its evident purposes, having regard to such context, despite mere inconsistencies or infelicities of expression which might tend to some other reading. And meanings which avoid inconvenience or injustice may reasonably be strained for. For reasons such as these, expressions which have been held in the case of other instruments to have been used to mean particular things may sensibly and properly be held to mean something else in the document at hand.

But the task remains one of interpreting a document produced by another or others. A court is not free to give effect to some anteriorly derived notion of what would be fair or just, regardless of what has been written into the award. Deciding what an existing award means is a process quite different from deciding, as an arbitral body does, what might fairly be put into an award. So, for example, ordinary or well-understood words are in general to be accorded their ordinary or usual meaning.

See also: Transport Workers’ Union of Australia v Linfox Australia Pty Ltd [2014] FCA 829 at [30]-[31], (2014) 318 ALR 54 at 58-59 per Tracey J. The task of construing the terms of an award or enterprise agreement “begins with a consideration of the ordinary meaning of its words” but those words “must not be interpreted in a vacuum divorced from industrial realities”: City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union [2006] FCA 813 at [53] and [57], (2006) 153 IR 426 at 438-439 and 440 per French J (as his Honour then was) (“Wanneroo”).

17    The general approach to the interpretation of enterprise agreements has more recently been summarised by Tracey, Bromberg and Rangiah JJ in WorkPac Pty Ltd v Skene [2018] FCAFC 131, (2018) 264 FCR 536 at 580 as follows:

[197]    The starting point for interpretation of an enterprise agreement is the ordinary meaning of the words, read as a whole and in context: City of Wanneroo v Holmes (1989) 30 IR 362 (Holmes) at 378 (French J). The interpretation “turns on the language of the particular agreement, understood in the light of its industrial context and purpose”: Amcor Ltd v Construction, Forestry, Mining and Energy Union (2005) 222 CLR 241 (Amcor) at [2] (Gleeson CJ and McHugh J). The words are not to be interpreted in a vacuum divorced from industrial realities (Holmes at 378); rather, industrial agreements are made for various industries in the light of the customs and working conditions of each, and they are frequently couched in terms intelligible to the parties but without the careful attention to form and draftsmanship that one expects to find in an Act of Parliament (Holmes at 378–379, citing George A Bond & Company Ltd (in liq) v McKenzie [1929] AR (NSW) 498 at 503 (Street J)). To similar effect, it has been said that the framers of such documents were likely of a “practical bent of mind” and may well have been more concerned with expressing an intention in a way likely to be understood in the relevant industry rather than with legal niceties and jargon, so that a purposive approach to interpretation is appropriate and a narrow or pedantic approach is misplaced: see Kucks v CSR Ltd (1996) 66 IR 182 at 184 (Madgwick J); Shop, Distributive and Allied Employees’ Association v Woolworths SA Pty Ltd [2011] FCAFC 67 at [16] (Marshall, Tracey and Flick JJ); Amcor at [96] (Kirby J).

115    In my view, the “industrial reality” which underpins the text of clause 29 of the Agreement is an appreciation by the parties to that agreement of the demands of the employment covered by that agreement and a related need for employees to have short breaks and, as the case may be, a meal break, depending upon the length of time worked. Of course, that appreciation has manifested itself in particular, textual specifications of periods of time but these are the deliberate choices of the parties as to how and when those demands ought to be ameliorated. The clause obviously has a beneficial purpose in relation to the welfare of employees but there is also a benefit conferred on Tantex in having a workforce that is neither over-fatigued nor underfed. The short breaks or, as the case may be, meal breaks are meant to be in paid time but it would be a mistake, for the reasons just given, to measure the worth of these breaks solely in monetary terms.

116    Once the purpose of clause 29 is understood, the Latin maxim, de minimus non curat lex is inapplicable to its construction and application. On no practical, sensible, industrial construction of the clause could it be said that an error which resulted in the over-working of a worker by denial of a consensually determined break for his or her welfare and to the financial benefit of an employer could be dismissed as trifling. The error made by Tantex, via Mr Crenicean, in the 5 January 2019 Post was no mere, trifling mis-statement. Rather, it was, in the prevailing circumstances, a reckless falsehood and a serious one at that.

117    Mr Crenicean was not, in my view, deliberately dishonest in making representation (a) in the 5 January 2019 Post. He was, however, reckless. The particulars offered by the Union, set out above, as to why it alleged he was reckless are each established on the evidence. This was a very calculated, generic representation by a Senior Manager, which purported to specify true entitlements of employees so as to quell known workforce unrest and, not coincidentally, paint Tantex in a favourable light. Necessarily, Mr Crenicean must have known that it would be relied on by his target audience. There is no great complexity in the language of clause 29 of the Agreement. Mr Crenicean claimed, and I accept, that he did re-read clause 29 before making the Post. However, that reading must have been a very cursory one, because his evidence was that he thought the 10 minute paid breaks under clause 29 of the Agreement could be taken in “increments”, something not mentioned in the clause at all. I thought he struggles in cross-examination to explain what he meant by this. The Union submitted that he was alive to the possibility that he was wrong in his reading of the clause. However, that submission was not, with respect, supported by the transcript reference to his oral evidence given by counsel. He admitted that he did nothing in advance of making the 5 January Post to test the correctness of his views by, for example, consulting a lawyer, an industrial relations specialist or anybody from the franchisor, McDonald’s Australia. Inferentially from the overall scale of its operation by 2019, Tantex would readily have been able to procure external legal or industrial advice before the making of the 5 January 2019 Post. To this one might add that, by 5 January 2009, Mr Crenicean had, within Tantex’s managerial ranks, a dedicated People and Operations Manager. He did not consult that Manager in advance for advice. Neither did he consult Ms Manteit-Mulcahy. The Agreement does not posit the 10 minute break as an alternative to discretionary toilet and drink breaks which I find Mr Crenicean had in mind when he made the post. He was aware as at 5 January 2019 of this discretionary practice and, I find, must have made the representation that this practice was an alternative to the Agreement’s 10 minute break by closing his eyes to the obvious absence of any foundation for this in his haste to close down the employee agitation about what the Union was asserting was a right. He was utterly careless and without caution in making this representation.

118    The entitlement to a 10 minute break for which clause 29 of the Agreement provided was, undoubtedly, a workplace right for the purposes of the FWA. Representation (a) was also, undoubtedly, “about” the right to such a break.

119    It necessarily follows that the Union has proved a violation of s 345 of the FWA constituted by the making of representation (a) in the 5 January 2019 Post.

120    As to representation (b), Tantex submitted that it had not been proved that it was false, because it had not been proved that a majority of employees at the Windsor West restaurant worked 4 hours or more in a single shift. This is true. Accordingly, representation (b) is not proved.

121    As to representation (c), read in context it is premised upon Mr Crenicean’s erroneous understanding of the meaning and effect of clause 29 of the Agreement, as found in representation (a). In effect, what he was conveying is that, if Tantex implemented a 10 minute break for employees, even if they worked four hours or less (and thus were not, so he had asserted, entitled to such a break), it could then refuse to allow employees any other time off during their shift for the purpose of having a drink of water or going to the toilet. Thus, representation (c) is, in my view, made out.

122    The challenge which Tantex made in respect of representation (c) was not that it had not been made but rather that it was not false. The Union’s case was that the falsity flowed from the position under either or each of clause 29 of the Agreement and the WHS Act. Tantex disputed this on these bases.

123    Tantex’s first premise, which flows from clause 29.1.4 of the Agreement, was that an employee was to take the paid drink break within the time specified in clause 29.1.1 but as directed by a Manager or Shift Supervisor. Put another way, it submitted that an employee could not, within a four hour shift, take the drink break whenever he or she wished but at managerial discretion depending on work demands. Subject to the qualification that the employee must be permitted to take the break at some stage, I accept this.

124    Tantex then submitted that neither by clause 29 nor elsewhere did the Agreement require it to give effect to a request of a Windsor West restaurant employee to take a drink or to go to the toilet. As to a drink, I understood this submission to refer to the taking of a drink outside the prescribed drink break. So understood, this is true. Further, a toilet break is mentioned not at all in clause 29. Tantex further submitted that there was nothing in the contract of employment with such an employee which required it to give effect to such a request. This, also, is true.

125    Tantex’s further submission was that neither by s 19 nor otherwise did the WHS Act, either expressly or impliedly, confer an entitlement on a worker to take a drink or to go to the toilet at any point during their work at a workplace.

126    That s 19 of the WHS Act does not expressly confer such a right may be accepted. That section does not, in terms, mention either drink or toilet breaks. It is cast at a much higher level of abstraction in terms of the duty of an employer. By s 19(1)(a) of the WHS Act, a person conducting a business or undertaking, and thus Tantex, “must ensure, so far as is reasonably practicable, the health and safety of workers engaged, or caused to be engaged by the person”.

127    Tantex was also bound by reg 41 of the Work Health and Safety Regulation 2011 (Qld) (WHS Reg), made under the WHS Act, to “ensure, so far as is reasonably practicable, the provision of adequate facilities for workers, including toilets, drinking water, washing facilities and eating facilities”.

128    There is not much point in imposing a statutory duty on an employer to provide, materially, toilets or drinking water if an employee cannot access the same. Neither does it seem to me an answer to say that the Agreement provides for breaks after specified numbers of hours of work and that the required facilities can be accessed during these breaks. So they can. But the breaks are termed “drink break” and “meal break”, the titles being indicative of their purpose. In particular, neither has as its purpose the use of toilet facilities. Neither does a need to use toilet facilities necessarily arise with particular, predictable, temporal regularity. Denial of access as needed to toilet facilities or drinking water could, as a matter of ordinary life experience, have adverse health and safety ramifications for an employee and thus enliven the primary statutory duty of an employer found in s 19 of the WHS Act. On the other hand, it is not hard to see how some employees might under the guise of toilet or drink break needs avoid the undertaking of duties for which they are employed. Reconciliation of this latter consideration with this primary statutory duty would, as its specification indicates, be within the realm of what is “reasonably practical”.

129    The ingenuity of counsel did not yield any particular precedent authority on the subject of a right to take either toilet or drink breaks. Neither could I find any Australian authority on the subject. The point did, however, arise in the United States of America in Zwiebel v Plastipak Packaging Inc 36 IER Cases 975 (Ohio: Court of Appeals, 3rd District 2013) (Zwiebel v Plastipak Packaging), in the context of an alleged wrongful termination of employment case in which the basis for termination was the taking of excessive toilet or “restroom” breaks during a particular shift. In upholding a conclusion reached at trial that the termination was lawful, the Ohio Court of Appeals did not dissent from the joint position of the parties that a conclusion of the trial judge that “there is a public policy that requires the employer to make available toilet facilities, although reasonable restrictions may be placed on access” flowed from an occupational health and safety specification in relation to the provision by an employer of toilet facilities similar to reg 41 of the WHS Reg. The upholding of the termination turned on what was regarded on the facts as an unreasonable conduct in breach of a reasonable restriction. The restriction was that the employee should seek another to cover for him while absent.

130    The approach in Zwiebel v Plastipak Packaging accords with what seems to me necessarily to follow from reading s 19 of the WHS Act in conjunction with reg 41 of the WHS Reg. I thought the Union put the correct position well in its submission that, “Facilities are not ‘accessible’ if they are only available during scheduled breaks”.

131    In turn, what follows from this is that representation (c) was, contrary to Tantex’s submission, false. Mr Crenicean’s absolute denial of any such right did not state the true position. Tantex was obliged, even outside the 10 minute drink break (or the meal break for that matter) to allow an employee access during paid time to the toilet and drinking facilities it was obliged to provide, although it was permissible for it to place a reasonable restriction on that access. What might amount to a reasonable restriction is inherently fact specific, as Zwiebel v Plastipak Packaging illustrates. One might think, for example, that the refusal of access to time off for a drink within a few minutes after the clause 29 mandated drink break was a reasonable restriction but, on a particularly hot day in circumstances where air conditioning in a kitchen area was failing (an environment Ms Staines related in evidence had occurred at the Myer II restaurant, although, in fairness, Mr Crenicean disputed this), to deny a sweating Crew Member in the kitchen that time off might not be reasonable. Equally, for an employee just to dash off for a drink leaving hamburger patties or fries to burn might not be reasonable. One might hope and expect that occasion such as Zwiebel v Plastipak Packaging for determining whether employer or employee conduct was or was not reasonable would be infrequent. That is because, as in human affairs generally, in relations between employer and employee, the reasonable conduct of one tends to engender the reasonable conduct of the other.

132    The right to access the toilet or a drink of water was, in my view, a workplace right for the purposes of the FWA. Further, representation (c) was “about” that right.

133    It does not necessarily follow from this that representation (c) was recklessly made by Tantex by Mr Crenicean. Mr Crenicean was taxed at considerable length about his understanding of entitlement of employees to breaks be they 10 minute drink breaks or separate breaks for water drinking or toilet access. I thought this answer he gave about the 5 January 2019 Post was honest, once one realised that it was premised upon a quite erroneous, reckless understanding of the operation of clause 29 of the Agreement, “I want them to understand that they could have breaks whenever they needed to because their comments were saying they weren’t getting at all”. In isolation, that does reflect a correct understanding of the position in law, if not overstates it to the benefit of an employee, because the employer is entitled to impose a reasonable restriction. The difficulty is that this position is, contrary to Mr Crenicean’s understanding, in addition to the operation of clause 29 of the Agreement. Even the cursory reading of the Agreement Mr Crenicean made would have disclosed there was no support at all for a view that short discretionary toilet or drink breaks were an alternative to the 10 minute break. Once again, Mr Crenicean has, in effect, “shot from the hip” in his haste to close down the employee “tagging”, closing his eyes to the obvious. Representation (c) was made recklessly. The contravention has been proved.

134    Tantex’s defence in respect of the alleged contravention of s 345 of the FWA grounded in representation (d) replicated its defence in relation to representation (c), ie that it was able, as a matter of law, to prevent the Windsor West restaurant employees from taking a drink or going to the toilet outside of scheduled breaks. For reasons already given, this submission was wrong in law. Equally, representation (d), like representation (c), was premised upon a recklessly erroneous view of clause 29 of the Agreement by Mr Crenicean. Only by closing one’s eyes to the obvious could one regard short toilet or drink breaks as an alternative to the 10 minute break. Representation (d) has therefore been proved to be recklessly false.

135    Tantex also submitted that, in any event, in “assessing whether there was a contravention of section 345 and whether the Court should make a declaration concerning a contravention of section 345, the Court should take into account the lack of evidence relating to the materiality of the 5 January 2019 Post and the lack of evidence of loss”. It is true that there is no Windsor West restaurant equivalent of Ms Staines in terms of a claimant for compensation. However, as I have mentioned above in relation to the acknowledged contraventions, there is a public interest served by these proceedings. I consider that the reckless making of a false representation as to a workplace right by a Senior Manager of the holder of multiple franchises of a well-known, restaurant chain to offer a paradigm example of a case calling at the very least for declaratory relief.

Adverse action or coercion?

136    In addition to a contravention of s 345 of the FWA, the Union alleged that the 5 January 2019 Post constituted a contravention of s 340 of the FWA because it contained a threat that Windsor West restaurant employees to whom the Agreement applied and who exercised their workplace right to the benefit of clause 29 of that agreement would not be permitted to drink water or use the toilet outside of their 10 minute drink break or breaks (the alleged threat). The alleged threat was said to constitute adverse action within the meaning of items 1(b), 1(c) or 1(d) of s 342 of the FWA in that refusing to allow Windsor West restaurant employees to whom the Agreement applied and who exercised their workplace right to the benefit of clause 29.1 of the Agreement to drink water or use the toilet would:

(a)    deny those employees a safe and healthy workplace;

(b)    subject those employees to cruel and inhumane working conditions; and/or

(c)    treat those employees less favourably than Windsor West restaurant employees who did not exercise their workplace right to the benefit of clause 29 of the Enterprise Agreement.

137    The Union also alleged that, by the 5 January 2019 Post, Tantex, by Mr Crenicean:

(a)    threatened to organise or take action against Windsor West restaurant employees to whom the Agreement applied; or

(b)    threatened to organise or take action against such of those employees to whom that agreement applied and who were members of the Windsor West Facebook group.

138    The Union particularised the “action” it alleged Tantex had threatened to organise or take as denying employees access to the toilet outside of their 10 minute paid breaks and denying the employees the right to drink water outside of their 10 minute paid breaks. It alleged that the threat appeared on the face of the 5 January 2019 Post.

139    As to s 340, the Union alleged that this “action” was taken by Tantex, via Mr Crenicean,

(a)    because of the reason, or because of reasons including the reason, that Windsor West Employees to whom the Agreement applied:

  (i)    had the workplace right to the benefit of cl 29 of the Agreement; and/or

(ii)    exercised their workplace right to the benefit of cl 29 of the Agreement; and/or

(iii)    proposed to exercise their workplace right to the benefit of cl 29 of the Agreement; and/or

(b)    with the motivation or intention of preventing Windsor West Employees to whom the Agreement applied from exercising their workplace right to the benefit of cl 29 of the Agreement; and/or

(c)    with the motivation or intention of preventing Windsor West Employees to whom the Agreement applied from exercising their workplace right to the benefit of the [WHS Act].

140    Tantex, correctly in my view, did not submit that the Union ought to have been put to an election as to upon which of the alleged contraventions of ss 340, 343 and 345 of the FWA it chose to rely on the basis that they were alternative charges arising from the same conduct. Instead, the correct position, in my view, is that, though closely interconnected with the false representation, any contravention of either or each of s 340 and s 343 of the FWA is separate and distinct in a similar way in which charges of making a false statement, evasion and smuggling were regarded as separate and distinct aspects of a course of conduct in L Vogel & Son Pty Ltd v Anderson (1968) 120 CLR 157, at 161 and 167 – 168. As in that case, the impact of the interconnectedness of those additional contraventions, if proved, would be in relation to the determination of penalty, not in the putting of the Union to an election.

141    The drink break for which clause 29 of the Agreement provided was, as I have already concluded, a workplace right. So, too, for reasons explained above, was a right, within the bounds of reasonableness, to pause for a drink of water or to go to the toilet during a shift a workplace right.

142    There was some controversy in submissions, reflecting the then state of authorities, as to whether s 361 of the FWA applied to cases where a contravention of s 340 or s 343 of that Act entailing a threat was alleged. Just before judgment was reserved, the correctness of the proposition that the presumption expressed in s 361 applies to allegations of threats of action or organising action was upheld by the Full Court in Australian Building and Construction Commissioner v Molina (2020) 295 IR 414.

143    In any event, Tantex submitted that, materially, the Union had, at least, to prove that the 5 January 2019 Post contained a threat, citing in support Newton v Australian Postal Corporation (No 2) (2019) 292 IR 396 (Newton v Australian Postal Corporation (No 2)), at [26], per Bromberg J. I agree. The presumption found in s 361 is concerned with whether particular action was taken for a proscribed reason or with a proscribed intent. Whether the action was taken at all is something for an applicant to prove as a matter of objective fact. The Union has proved that Tantex, by Mr Crenicean, made the 5 January 2019 Post but it must also prove that, in so doing, in the case of s 340, it took the adverse action alleged (s 342 including for this purpose a threat or organising the same) or, in the case of s 343, organised or threatened to take action. It is not necessary, in order to find a contravention, that the injury or prejudice entailed “cruel and inhumane” working conditions. However, there is an element of cruelty in a threat that entails denying to a worker on a shift of up to and including 4 hours duration no opportunity either to take a drink or to go to the toilet outside a designated 10 minute break. Further, as a matter of ordinary experience of life, such denial is unlikely to be conducive either to the health or the safety of workers with the duties of Crew Members, especially those who have cooking duties. Yet further, it is possible to see an element of discrimination in the 5 January 2019 Post – it is those employees who avail themselves of the 10 minute break who will be denied drink or toilet breaks outside this period.

144    Tantex submitted that the 5 January 2019 Post contained no element of threat, only sarcasm or satire. Each of these qualities is present in that post. I readily accept that the mere presence of such qualities in a communication does not make that communication a threat. The question of whether a communication which has elements of sarcasm and satire in it conveys a threat is inherently fact and context specific with context extending not just to the alleged threat in the context of the communication read as a whole but also read against the context of prevailing circumstances. Sometimes, too, the sinister can be conveyed by the most banal, even innocent language. A good example of this is found in the curse of allegedly Chinese origin, “May you live in interesting times”. Equally, subconscious bias, be it found in particular educational, economic, cultural or other background personal circumstances. can lead one to discern or not to discern a threat when others of different circumstances discern none or, as the case may be, discern one clearly. Alexander Pope long ago made this point well in his seventeenth century work, “An Essay on Criticism”, “All seems infected that th’ infected spy, As all looks yellow to the jaundic’d eye”. Sometimes, however, if made with a particular target audience in mind, a communication in language which to some does not seem to be a threat is well understood by the target audience to be a threat, as its maker intended.

145    Approaching the question with these considerations in mind, my conclusion is that the 5 January 2019 Post communicated a threat in the following:

What this means is that if we implement this over our current situation, on your shift – this 10 minute break would be the only time you would ever be permitted to have a drink or go to the toilet. So I hope to god you don’t get thirsty on your next shift because we just wouldn’t be able to allow a drink. Fair is Fair right?

…

It actually works better in our favour to follow this ‘legislation’ and keep you all working non stop.

[Emphasis added]

To me, as a matter of ordinary English in the context of the post as a whole and read against the background of the Union’s Facebook post of which Mr Crenicean was aware and of the employee “tagging” of which he was also aware in relation to the taking of a 10 minute drink break, these sentences, especially taking into account the parts emphasised, constitute a threat, in effect, that if you take a 10 minute break, that will be the only time you will be permitted to take time off for a drink of water and to go to the toilet during your shift. In Fair Work Ombudsman v Australian Workers’ Union (2017) 271 IR 139, at [54], Bromberg J offered a summary, with which I respectfully agree, derived from earlier authorities, as to what was and was not or may be entailed in “threatening to take action”:

54.    … First, “threatening to take action” must involve the communication of a threat directed at an ascertainable person which is received or is likely to be received by that person. That a particular outcome is threatened by existing or prospective circumstances is not a threat of the requisite kind. Second, to threaten means to communicate an intent to inflict harm or, in other words, a warning of an intention to inflict harm. Third, the essence of a threat is that it is made for the purpose of intimidating a person. Accordingly, “threatening to take action” must involve an expression of an intimidatory purpose. Fourth, it is not necessary that a subjective intent to carry out the threat be established. Fifth, the notion of a threat is not confined to an intent to inflict harm which was unlawful or unjustified. Sixth, the presence of malice or some other injurious motive is not a prerequisite. Lastly, a threat to take action may be conditional (in the sense that X will occur if Y does not).

[emphasis in original]

146    Here, the ascertainable persons who either received or were likely to have received the 5 January 2019 Post were the employee members of the Windsor West Facebook group. The identified sentences convey either an intention to inflict harm or, at the very least, a warning of such an intention. Also, to me, it is pellucid that these sentences have been included in the post for the purpose of intimidating the target employee audience. They are designed to diminish, if not eliminate, the agitation (of which “tagging” is a manifestation) about a right to a 10 minute break. There is a conditional quality in the identified sentences, in that they posit what will happen if the 10 minute break is implemented but that does not mean they do not contain a threat. Indeed, in the course of human affairs great and small, a conditional element will invariably attend a threat, for that is the very purpose of making it. Witness, for example, at the geo-strategic level, the United Kingdom’s final ultimatum to Germany, delivered at 9 am on 3 September 1939, “… unless the German Government are immediately prepared to give His Majesty’s Government satisfactory assurances that the German Government has suspended all aggressive action against Poland and promptly to withdrawn their forces from Polish territory, His Majesty’s Government in the United Kingdom will without hesitation fulfil their obligations to Poland” (British Library, World Two Ultimatum Letter to Germany, available online). The opening clause of the ultimatum is conditional while the balance of the ultimatum, though couched in diplomatic language, is in substance a threat of war. Recalling such historic phraseology assists in understanding why there is nothing either novel or surprising in characterising the 5 January 2019 Post as including within it a threat.

147    As to s 340 of the FWA, the adverse action constituted by a threat must have a causal connection, in one way or another as specified in that section, with a workplace right. In the circumstances, the threat found in the 5 January 2019 Post has a requisite causal connection. Indeed, there are two connections with workplace rights. The threat has been made because employees are proposing to exercise a right to take a 10 minute break (for which clause 29 of the Agreement provides), a workplace right or to prevent the exercise of that right or for each of those reasons. Another element of the threat is that, if you avail yourself of a 10 minute break, you will be denied any time off outside that 10 minutes either for a drink of water or to go to the toilet. Yet, for reasons already given, the reasonable taking off of time for such purposes is also a workplace right.

148    Tantex also contested whether the 5 January 2019 Post contained any element of taking adverse action. It submitted that there was no element of injury or prejudice in employment. This submission should be rejected. The target audience of Windsor West Facebook group employees was threatened with prejudice – if the 10 minute break is implemented (which, as a matter of law ought already to have been in place for those who worked four hours or more), you will be forbidden from either going to take a drink of water or going to the toilet outside that time (a denial of an existing right). That is an “adverse affection of, or deterioration in, the advantages enjoyed by the employee”: Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (No 3) (1998) 195 CLR 1, at [4] (Patrick Stevedores). A more naked element of prejudice in employment is difficult to envisage.

149    As construed in a materially analogous context in Patrick Stevedores, at [4], “injury” is injury of a compensable kind. The very nature of a threat is that the threatened act and thus a resultant injury is in prospect but not yet carried out. That would suggest that proof in the abstract of “injury” might be sufficient where a threat is alleged. It is by no means impossible to see how, on particular facts, the forbidding of an employee from either going to take a drink of water or going to the toilet outside a designated 10 minute break period during a shift of 4 hours might engender deleterious effects on the human condition which were compensable. Heat stroke comes to mind as a possibility in relation to non-consumption of water without a break for the same when on continuous duty in a particularly hot kitchen environment. That is to say nothing of an employee who can endure “holding on” no longer and soils him or herself at a counter station or in the kitchen area. However, there was no medical evidence led by the Union, on whom the onus fell, as to what deleterious effects might be expected. While I have reservations about the correctness of Tantex’s submission that there cannot be an “injury”, s 342 of the FWA makes proof of prejudice sufficient to constitute “adverse action”, thereby making it unnecessary to determine whether, additionally, “injury” has been proved.

150    Even in the absence of s 361 in the FWA and even taking into account all that is entailed in s 140(2) of the Evidence Act, I would have been satisfied on the whole of the evidence that Mr Crenicean, and thus Tantex, was intending by this part of the 5 January 2019 Post to convey what would happen to employees at Windsor West if the 10 minute break were implemented. In the context of the events which had transpired, including his awareness of the Union’s 4 January 2019 Facebook post and his understanding of the consequential employee “tagging”, the tone of his 5 January 2019 Post was not happenstance. His purpose was evident enough on the face of that post but it was eventually confirmed by him in cross-examination, in essence, “if we had changed to a different style of breaks, then it would be very different for them”, because Tantex would keep them working non-stop outside their breaks. Even absent s 361, and in relation to the alleged contravention of s 340 of the FWA, I am satisfied that Tantex, via Mr Crenicean, made the threat for the reason alleged by the Union and with each of the intentions alleged by the Union, as set out above. As it is, given that s 361 of the FWA is applicable in a s 340 case, although Tantex called the relevant decision-maker, Mr Crenicean (a course prudently adopted by it in light of Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500), I am not satisfied, having heard his evidence, on the whole of the evidence, that the presumption for which that section provides is displaced.

151    In short then, the Union has, in my view, proved a contravention of s 340 of the FWA.

What of s 343?

152    A number of judgments of this Court, collected by Buchanan J (with whom Siopis J agreed) in Esso Australia Pty Ltd v Australian Workers’ Union (2016) 245 FCR 39, at [174], hold that, “coercion” requires “the satisfaction of two elements: negation of choice; and, the use of unlawful, or illegitimate or unconscionable means”. The correctness of the proposition as to the additional, second element, in relation to s 343 of the FWA, was doubted by Kiefel CJ, Keane, Nettle and Edelman JJ in their joint judgment in the subsequent appeal to the High Court, although their Honours found it unnecessary conclusively to decide the point: Esso Australia Pty Ltd v Australian Workers’ Union (2017) 263 CLR 551 (Esso Australia v AWU), at [61]. The Union put its s 343 case on the basis that it needed to prove the two elements, although it further submitted that it was not necessary that the person threatening the action (here, Tantex, by Mr Crenicean) knew that the action was, or intend that the action be, unlawful, illegitimate or unconscionable. I understood the latter reservation to take up another statement made by Kiefel CJ, Keane, Nettle and Edelman JJ in Esso Australia v AWU, at [61], derived from an observation made by Gleeson CJ in Electrolux Home Products Pty Ltd v Australian Workers’ Union (2004) 221 CLR 309, at [26]. Put into the context of s 343 of the FWA, the effect of the observation approved is that it is not necessary for the Union to prove that Tantex, via Mr Crenicean, had a correct legal appreciation of its conduct as evidenced by the 5 January 2019 Post or otherwise appreciated that the threat it contained was unlawful, illegitimate or unconscionable. The reservation voiced by the Union is correct in law.

153    Given the basis upon which the Union put its case and because I am sitting in the original jurisdiction, I consider that I ought to approach a contravention of s 343 on the basis that, subject to the reservation mentioned, each of these two identified elements in s 343 is applicable.

154    As to intention, the Union alleged that Mr Crenicean made the 5 January 2019 Post with the intention of negating the choice of Windsor West restaurant employees to whom the Agreement applied about whether to exercise their workplace right to the benefit of clause 29 of that agreement. Tantex disputed this but its dispute was predicated upon its asserted absence of a threat in the post. For reasons already given, that post contained a threat. I have no doubt at all that Tantex, via Mr Crenicean, that threat with the intention of negating the choice of Windsor West restaurant employees about whether to exercise their right to a 10 minute drink break (the break for which clause 29 of the Agreement provided, a workplace right). In the prevailing circumstances, the language Mr Crenicean employed in the post could only have been deliberately designed to negate the taking up of, the exercise of the right to, that break. Once again, although s 361 of the FWA is here, too, applicable, even absent that provision and having seen and heard Mr Crenician’s evidence, I would find on the whole of the evidence that this was his intention. Mr Crenicean did not just confine his post to what I have found to be a recklessly false representation. The addition was more than merely gratuitous. Even inferentially in the prevailing circumstances and on the face of the post, what followed the misrepresentation must have been intended by him to negate the taking up of the 10 minute break by employees, in light of what was said would follow for them. It was overtly coercive. Nothing in his lengthy cross-examination persuaded me that any different conclusion should be reached. To the contrary, his denial of wanting workers to stop asking for 10 minute breaks struck me as at odds with his admissions that he wanted employees to stop “tagging” and to stop complaining about not having the 10 minute break. His whole demeanour was of a man unable or unwilling in the witness box to move to a position which he had very deliberately painted in the workplace on the face of the post when making it on 5 January 2019. In any event, I am not satisfied that Tantex has, by leading evidence from Mr Crenicean and on the whole of the evidence, displaced the presumption for which s 361 of the FWA provides.

155    The threat contained in the 5 January 2019 Post involved conduct that was unlawful, illegitimate or unconscionable. It was unlawful in that it constituted what I have found to be unlawful adverse action in contravention of s 340 of the FWA. It was, as the Union submitted, illegitimate because Tantex had no lawful basis to refuse at all to allow employees to drink water or use the toilet during the course of working hours. It could only lawfully impose a reasonable limitation and that did not extend to an absolute ban on taking any such break outside the 10 minute break for which clause 29 of the Agreement provided. Finally, it was unconscionable, as the Union also submitted, absolutely to deny workers an ability to use the toilet when required or to drink water as needed. That is so, irrespective of whether they are children, although it is hardly edifying that the threat of such denial was made to a group which, on the evidence, necessarily must have included children.

156    The Union has, for these reasons, proved a contravention of s 343 of the FWA as alleged.

Should Ms Staines be further compensated?

157    I have deliberately posed the final question for resolution at the present stage of this proceeding, in terms of further compensation for Ms Staines, because Tantex, albeit in two tranches, has paid to her such monetary compensation in respect of paid time worked in circumstances when she ought to have been on a drink break, together with an interest component, as she was disposed to seek in this proceeding. Although raised by me in the course of submissions, the question as to whether an award of interest might, either under s 545 of the FWA itself or s 547, be made on a compound basis was not in the end taken up. In those circumstances, it is neither necessary nor desirable to make any observations on that subject.

158    There is no warrant for reading down “loss” in s 545(2)(b) of the FWA to monetary loss. The only qualification specified by parliament is that the loss, whatever it may be, must be “because of the contravention”. There must therefore be a causal connection.

159    Tantex put it that “loss of amenity [is not] an available head of damage or compensation for a contravention of clause 29.1 of [the Agreement]”. So put, the submission is wrong for two reasons. Firstly, it puts a gloss on the word “loss” which is not present in s 545. Secondly, but related to the first error, the cause of action is wholly statutory, arising under s 545 of the FWA, not under the Agreement. One looks for the causal connection through the prism of the proved contravention. More fundamentally, Tantex’s submissions in proceeding by reference to damages for loss of amenity at common law or for breach of contract exhibited a vice repeatedly deprecated by the High Court in relation to the assessment of damages under generally worded statutory remedies as found in what was formerly known as the Trade Practices Act 1974 (Cth). Thus, in Murphy v Overton Investments Pty Ltd (2004) 216 CLR 388, at [44], in a passage expressly reiterated in the unanimous joint judgment of the High Court in Master Education Services Pty Ltd v Ketchell (2008) 236 CLR 101, at [28], it was said of those remedies that:

44.    This Court has now said more than once that it is wrong to approach the operation of those provisions of Pt VI of the [Trade Practices Act 1974 (Cth)] which deal with remedies for contravention of the Act by beginning the inquiry with an attempt to draw some analogy with any particular form of claim under the general law. No doubt analogies may be helpful, but it would be wrong to argue from the content of the general law that has developed in connection, for example, with the tort of deceit, to a conclusion about the construction or application of provisions of Pt VI of the Act …

[footnote reference omitted]

160    In the same way, it would, in my view, be wrong to argue from the general law to a conclusion about the construction and application of s 545 of the FWA. Just this point was made by Mortimer J in Dafallah v Fair Work Commission (2014) 225 FCR 559 (Dafallah), at [148] – [149].

161    It was also posited in Dafallah, at [157], that the power to make orders under s 545 was discretionary (presumably flowing from the word, “may”), including the power to award compensation. Tantex took this up in submissions to contend that I might, even if there were some causally connected loss other than the monetary proved (which it denied), I should, as a matter of discretion, not award any compensation to Ms Staines. There is, however, an alternative construction of “may” where it appears in both s 545(1) and s 545(2) of the FWA, which is that it is empowering, not productive of a discretion. The relevant point was made in Finance Facilities Pty Ltd v Commissioner of Taxation (Cth) (1971) 127 CLR 106, at 134 – 135, by Windeyer J:

This [question] does not depend on the abstract meaning of the word “may” but [on] whether the particular context of words and circumstance make it not only an empowering word but indicate circumstances in which the power is to be exercised – so that in those events the “may” becomes a “must” …

162    It seems to me that “may” as used in s 545(1) is empowering but the exercise of the power is tempered by what the Court “considers appropriate”. This, in my respectful view, is the point made about s 545 in the joint judgment in Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2018) 262 CLR 157, at [103]. The tempering is not to the end of authorising whimsical or idiosyncratic relief (or absence thereof) but rather the making of an order that is just – considered judicially to be appropriate - in the circumstances of a given case. It would be unwise, especially in an industrial relations context, to be further prescriptive, only to observe that, if a loss were proved to have been caused by a particular contravention, it is difficult to see how it would be “appropriate” not to award compensation for that loss.

163    But a causally connected loss must be proved. The Union offered an accurate summary of evidence given as to working conditions for Crew Members, Ms Staines in particular. Ms Staines, I thought offered an honest account of her experience of those conditions. So, too, did Ms Locke offer honest evidence of her perspective. Ms Staines’ evidence was that her work was mostly fast-paced, and there were always tasks to be done. The working environment was sometimes very hot, there was a constant smell of food, there was the noise of cooking and customers, and her work was performed in close proximity to colleagues. The work environment was stressful and demanding, physically and mentally. Ms Locke’s evidence was that on some days, workers did not have even one or two seconds free in the course of the day.

164    This, however, was the nature of the lot of a Crew Member generally. The loss caused by the contravention was not to work in such conditions but to do so without the benefit of the break for which clause 29 of the Agreement provided and to do so over the period in which Ms Staines was, with minor exceptions, denied that break. It was, in this sense, a loss at the margin. Ms Staines was denied a short respite from, what was by its nature, a mentally and physically demanding job. However, the submission that, without that respite, the accumulation of the mental and physical demands of her work were greater than they otherwise would have been owed much to assertion. Ms Staines’ evidence, which I accept, was that, “Ten minutes where I was able to step away from the heat and the smell of the store and the stress of the fast-paced environment would have helped me to feel calmer, less stressed and less physically tired.” That was a subjective perception. There was no medical evidence on the subject led at all, let alone evidence from an occupational health physician as to the ameliorating effects of the short respite break and the deleterious effects that might be expected from its denial. Such was the correlation of the period of her denial of the break and the period of her employment, Ms Staines did not have a reference base upon which to offer evidence as to what improvement, if any, she had noticed after Tantex began to comply with the Agreement.

165    The Agreement, by clause 29, recognised a need for a break but that recognition does not, in itself, prove the non-monetary loss that flows from its denial either generally or for Ms Staines.

166    Ms Staines did, I accept, also experience the frustration of being denied a “workplace right” she quite correctly considered was hers to enjoy. On the evidence, that period of frustration began in late 2018.

167    In Morton v Commonwealth Scientific and Industrial Research Organisation (No 2) [2019] FCA 1754, at [661], Rangiah J accepted that the language of s 545 was wide enough to empower the awarding of compensation for “disappointment” falling short of hurt, humiliation or distress. In that case, the disappointment lay in a failure to follow a grievance process.

168    The Union went so far as to submit that a non-monetary loss award of compensation of $100 per contravention might be made. That approach, however, would assume that the loss caused by each contravention was uniform and, possibly also related to that, that it did not have some cumulative aspects. I accept that the monetary compensation already paid for loss of paid time breaks alone does not provide a full measure of the loss caused to Ms Staines. She was, after all, meant both to be paid and to enjoy an agreement envisaged respite period. I can also well understand the frustration that is entailed for a worker in knowing that there is a right to such respite, experiencing its denial and finding it necessary to agitate for the same. In turn, the frustration experienced by Ms Staines may well have interplayed with her subjective experience of the impact of lack of respite. Equally, compensation for such losses must not be a surrogate for, or an addition to, such penalty, if any, as is just to impose for the contraventions concerned. The position then is that the evidence discloses an identifiable loss, which has physical and mental elements but the precise occupational health impact of the loss, compared with the position which would have prevailed in any event from the very nature of the duties in the environment in which they were undertaken, is uncertain. That is no reason to consider it “appropriate” to make no compensatory order at all, only to be guarded in its amount. In my view, a lump sum award of $1,000 is an appropriate measure of compensation in respect of the various non-monetary losses experienced by Ms Staines, which I find were caused by the admitted contraventions. There was no claim for interest on such compensation either in the originating application, in the further amended statement of claim or in submissions.

Summary

169    As to the contested contraventions, I have, for the reasons given above, concluded that:

(a)    save that entailing the conduct of Tantex by Ms Manteit-Mulcahy, contraventions of s 345 arising from the conduct of Ms Locke and, to the extent indicated, Mr Crenicean have been proved;

(b)    the alleged contravention of s 340 has been proved;

(c)    the alleged contravention of s 343 has been proved.

(d)    In addition to these, Tantex has also admitted contraventions of s 50.

170    The parties should be directed to bring in short minutes of orders to carry into effect the conclusions as to the admitted contraventions, others found proved and the dismissal of that found not to have been proved. In addition to this direction, I shall make an order for the awarding of the assessed compensation. If only out of an abundance of caution, I shall also reserve costs.

Associate:    

Dated:    31 August 2020