FEDERAL COURT OF AUSTRALIA
Construction, Forestry, Maritime, Mining and Energy Union v BM Alliance Coal Operations Pty Ltd (No 3) [2022] FCA 1345
ORDERS
CONSTRUCTION, FORESTRY, MARITIME, MINING AND ENERGY UNION Applicant | ||
AND: | BM ALLIANCE COAL OPERATIONS PTY LTD Respondent | |
DATE OF ORDER: |
THE COURT ORDERS THAT:
1. The Respondent contravened s. 340 of Fair Work Act 2009 (Cth) (the Fair Work Act) on and from 10 November 2017 by taking adverse action against Kim Star, an employee of WorkPac Pty Ltd, by refusing to make use of services offered by WorkPac Pty Ltd as an independent contractor to the Respondent within the meaning in Item 3(d) in the table in s. 342 of the Fair Work Act, in that the Respondent excluded Kim Star from the Goonyella Riverside Mine (the Mine) because she had exercised a workplace right on or about 9 November 2017.
2. By reason of s. 362 of the Fair Work Act the Respondent contravened s. 340 of the Fair Act on 10 November 2017 in that, because she had exercised a workplace right on or about 9 November 2017, the Respondent advised, encouraged or incited WorkPac Pty Ltd to exclude its employee, Kim Star, from the Mine thereby discriminating between her and other employees of WorkPac Pty Ltd at the Mine.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
COLLIER J:
1 On 7 February 2019 the applicant (CFMMEU) filed an amended originating application in which it sought the following relief against the respondent (BMA):
1. A declaration that the Respondent contravened s. 340 of the Fair Work Act 2009 (Cth) (the Act) on and from 10 November 2017 by taking adverse action against Kim Star, an employee of WorkPac Pty Ltd, by refusing to make use of services offered by WorkPac Pty Ltd as an independent contractor to the Respondent within the meaning in Item 3(d) in the table in s. 342 of the Act, in that the Respondent excluded Kim Star from the Goonyella Riverside Mine (the Mine) because she had exercised a workplace right on or about 9 November 2017.
2. Further or in the alternative, a declaration that by reason of s. 362 of the Act the Respondent contravened s.340 of the Act on 10 November 2017 in that, because she had exercised a workplace right on or about 9 November 2017, the Respondent advised, encouraged or incited WorkPac Pty Ltd to exclude its employee, Kim Star, from the Mine thereby injuring her in her employment, altering her position to her prejudice and/or discriminating between her and other employees of WorkPac Pty Ltd at the Mine.
3. ….
4. An order pursuant to s. 545 of the Act that the Respondent pay Ms Star compensation for loss and damage she suffered as a result of the Respondent’s unlawful conduct.
5. An order pursuant to s. 546 of the Act that the Respondent pay pecuniary penalties in respect of its contraventions of the Act.
6. An order pursuant to s. 546(3) of the Act that any such penalties be paid to the Applicant.
7. Such further or other orders as the Court considers appropriate.
BACKGROUND
2 Relevant background facts are as follows:
At all material times BMA operated the Goonyella Riverside coal mine (the Mine).
WorkPac Pty Ltd (WorkPac) operated a labor hire business which supplied labor to BMA at the Mine.
Ms Star was employed by WorkPac as a machinery operator, and supplied by WorkPac to BMA to work at the Mine on a casual basis from October 2013 until November 2017. Usually she drove a dump truck at the Mine.
Usually relevant staff on night shifts at the Mine took two 35 minute crib breaks, between 9.00pm to 11.00pm and 2.00am to 4.00am.
On 9 November 2017 Ms Star was rostered to work night shift commencing at 6.15pm. Her first crib break was 10.30pm to 11.05pm.
Her duties included collecting rejected land mass from the wash plant in a tip-truck and then delivering and unloading the land mass on to ramp 14.
A ramp is the access way for vehicles to access the open cut mine pit. Ramps are regraded with soil to be at a certain gradient, usually 10 or 11%.
The performance of Ms Star’s duties was regulated by various Standard Operating Procedures developed by BMA, including the BMA Standard Operating Procedure 030.04 GRM SOP Safe Loading and Discharge of Loads (Safe Loading SOP).
The Safe Loading SOP provided:
Ensure adequate lighting is in place to illuminate the work area, having consideration for shadow, contrast and glare. Additional lighting sets may need to be set-up for night-time operations.
On delivery of the first load of the evening there were no lights on ramp 14 which would have enabled Ms Star to see where she would unload the rejects in the truck she was driving.
Ms Star was “spotted” by a BHP employee, Mr Sam Higgins, who directed lights from the grader he was operating to illuminate the ramp to enable Ms Star to unload the first load.
Ms Star gave evidence that she spoke with Mr Higgins over the radio, and told him that separate lighting was required to light the ramp before she caused her truck to dump the second load because it was unsafe. In her affidavit dated 5 October 2018 Ms Star gave evidence as follows:
25. I then decided to try and resolve the issue before dumping the load, by speaking to a supervisor. I was of the view that I was required by BMA safety policy to insist on lighting and that I was eliminating a potential hazard or danger. I was also concerned about my personal safety if I carried out the task in the dark. I formed that view because I could not see in the dark, this meant I could not see the road adequately. This meant I could not see, for example, rocks on the road, an uneven surface or the edge of the road. Those were all hazards. I had been trained that when you identify hazards, you stop and wait. I therefore decided not to perform the task and wait until the area was lit properly.
Ms Star then unsuccessfully endeavoured to contact Mr Higgins’ supervisor and her supervisor concerning the lighting situation on ramp 14. Eventually Ms Star was told that lights would be coming. Ms Star did not attempt to dump the second load, and waited.
While waiting for lights to be provided at around 3.30am on 10 November 2017 Ms Star was contacted by despatch on the internal messaging system and informed that she was to go on her crib break.
Either during or after her crib break Ms Star took a work-related random drug test. Ms Star gave evidence that this followed a previous request by Mr Rod Maunder, the Supervisor of the D Crew in the Production Team at the Mine. Random drug tests were mandated by the Fitness for Work Policy, also promulgated by BMA.
Upon returning from her crib break and drug test at around 4.30-4.40am on 10 November 2017 Ms Star was allocated a different truck and a different task. She concluded her shift.
On 10 November 2017 Ms Raina Alexander BMA Resourcing Specialist, Workforce Acquisition and Enablement, sent an email to notify WorkPac that Ms Star was “no longer required” at the Mine.
On 13 November 2017 Ms Star’s employment was terminated by WorkPac.
On 1 December 2017 an application was filed in the Fair Work Commission claiming that Ms Star had been unfairly dismissed by WorkPac.
On 28 August 2018 the Fair Work Commission determined that Ms Star’s dismissal was unfair, and on 17 September 2018 ordered that WorkPac reappoint Ms Star to her former position, Level 3 Mine Worker at the Mine, by no later than 8 October 2018;
On 20 September 2018 WorkPac sought BMA’s permission for Ms Star to return to work at the Mine;
On 24 September 2018 BMA informed WorkPac that Ms Star was not permitted to return to the Mine.
ISSUES IN DISPUTE
3 The parties have agreed that the following issues fall to be determined in this proceeding:
1. Was the Fitness for Work Policy a workplace instrument within the meaning of s 12 of the Fair Work Act?
2. Was the Safe Loading SOP a workplace instrument within the meaning of s 12 of the Fair Work Act?
3. What is the proper construction of s 274 of the Coal Mining Safety and Health Act 1999 (Qld) (CMSH Act)?
4. If the proper construction of s 274 requires a finding that the immediate personal danger be solely subjectively determined, did Ms Star believe that the task of dumping the load of rejects at Ramp 14 on 9 November 2017 placed her in an immediate personal danger?
5. If the proper construction of s 274 requires a finding that the immediate personal danger be objectively and subjectively determined, was the task of dumping the load of rejects at Ramp 14 on 9 November 2017 objectively capable of placing Ms Star in immediate personal danger?
6. Did Ms Star exercise a workplace right by refusing, in accordance with the Safe Loading SOP, to dump a load of rejects at Ramp 14 on 9 November 2017?
7. Did Ms Star exercise a workplace right by participating in a drug test in accordance with the Fitness for Work Policy?
8. Did Ms Star exercise a workplace right by refusing to dump a load of rejects at Ramp 14 on 9 November 2017 because Ms Star believed she was in immediate personal danger in accordance with s 274 of the CMSH Act?
9. On the proper construction of item 4(c) of s 342 of the Fair Work Act, did the Respondent take adverse action against Ms Star by excluding her from the mine on 10 November 2017?
10. On the proper construction of item 4(c) of s 342 of the FW Act, did the respondent take adverse action against Ms Star by refusing to allow her to return to the mine on 24 September 2018?
11. Did WorkPac’s decision between 10 and 13 November 2017 to not deploy Ms Star to the mine, amount to it taking adverse [action] against Ms Star within the meaning of items 1(b)-1(d) of section 342(1) of the FW Act?
12. Did the respondent encourage or incite WorkPac to take adverse action against Ms Star by sending the email pleaded at [50] of the Amended Statement of Claim?
13. Is the applicant permitted to submit that Mr Gee’s reasons are not determinative of the respondent’s reasons for excluding Ms Star from the mine on 10 November 2017? Alternatively should Mr Gee’s reasons be treated as the reasons of the respondent for excluding Ms Star from the Mine on 10 November 2017?
14. Has the respondent discharged the onus under s 361 of the FW Act of establishing that none of its substantial and operative reasons for excluding Ms Star from the mine on 10 November 2017, or refusing to allow Ms Star to return to the mine on 24 September 2018, included that Ms Star had exercised alleged workplace rights?
15. Did the respondent:
a. Advise, incite or encourage WorkPac to take adverse action against Ms Star because she exercised a workplace right; and/or
b. Take adverse action against Ms Star because she exercised a workplace right?
4 The applicant also submitted that there were additional issues for decision to be determined with these issues, referable to the proper construction of s 342 item 4 of the Fair Work Act, and the evidence of Mr Gee and Mr Maunder.
5 Given the intersection of a number of these issues, it is appropriate to consider some of them together. In particular:
(1) Workplace instrument issues (Issues 1 and 2)
(2) Construction of s 274 of the CMSH Act (Issues 3, 4 and 5)
(3) Whether there was an exercise of workplace rights by Ms Star (Issues 6, 7, and 8)
(4) Whether the respondent engaged in adverse action against Ms Star (Issues 9 and 10)
(5) Whether the respondent advised, incited or encouraged WorkPac to take adverse action against Ms Star within the meaning of s 362 of the Fair Work Act (Issues 11 and 12)
(6) Whether the respondent took adverse action against Ms Star, or advised, incited or encouraged WorkPac to take adverse action against Ms Star, for a reason or reasons that included reasons prohibited by the Fair Work Act, namely Ms Star exercising a workplace right or rights (Issues 13, 14 and 15).
(1) WORKPLACE INSTRUMENT ISSUES: WERE THE SAFE LOADING SOP AND THE FITNESS FOR WORK POLICY “WORKPLACE INSTRUMENTS” WITHIN THE MEANING OF S 12 OF THE FAIR WORK ACT? (ISSUES 1 AND 2)
6 Relevantly, s 340 of the Fair Work Act prohibits a person from taking adverse action against another person because that other person has a workplace right and has exercised that right.
7 A threshold issue in this case is whether Ms Star had a workplace right within the meaning of the Fair Work Act (which she subsequently exercised). Section 341 (1) of the Fair Work Act provides that a person has a “workplace right” if the person:
a) Is entitled to the benefit of, or has a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body; or
b) Is able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument; or
c) Is able to make a complaint or inquiry:
i) To a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrument; or
ii) If the person is an employee – in relation to his or her employment.
…
8 It is the applicant’s submission that Ms Star had workplace rights:
under the Safe Loading SOP, which entitled her to refuse to dump the rejects at ramp 14 when she believed that there was inadequate lighting; and
under the Fitness for Work Policy, by participating in a random mandatory drug test during her crib break on the morning of 10 November 2017, which constituted either participation in a process under a workplace instrument or exercising a responsibility under a workplace instrument (within the meaning of s 341 (1) (a) or (b) of the Fair Work Act).
9 This aspect of the applicant’s case plainly hinges upon whether the Safe Loading SOP and the Fitness for Work Policy were “workplace instruments” within the meaning of s 12 of the Fair Work Act and therefore capable of conferring upon Ms Star a workplace right for the purposes of ss 340 and 341.
10 Relevantly, s 12 of the Fair Work Act provides as follows:
“workplace instrument” means an instrument that:
(a) is made under, or recognised by, a workplace law; and
(b) concerns the relationships between employers and employees.
“workplace law” means:
(a) This Act; or
(b) The Registered Organisations Act; or
(c) The Independent Contractors Act 2006; or
(d) Any other law of the Commonwealth, a State or Territory that regulates the relationships between employers and employees (including by dealing with occupational health and safety matters).
(emphasis added)
11 The applicant must establish in accordance with s 12:
first, that the Safe Loading SOP and the Fitness for Work Policy were workplace instruments which were “made under or recognised by” a workplace law; and
second, that they both concern the relationship between employers and employees
Submissions of the applicant
12 The applicant’s case is that the Safe Loading SOP and the Fitness for Work Policy were individually given legal effect as workplace instruments by the Coal Mining Safety and Health Act 1999 (Qld) (CMSH Act) and Coal Mining Safety and Health Regulations 2017 (Qld) (CMSH Regulations), which each meet the definition of “workplace law”.
13 First, the applicant’s case is that the plain meaning of the words used in the CMSH Act and CMSH Regulations required health and safety management systems which materialised in the Fitness for Work Policy and the Safe Loading SOP. The applicant further submitted that these instruments were given “legal life” by those legislative provisions, and accordingly they fell squarely within the first limb of the definition of “workplace instrument”; Barnett v Territory Insurance Office [2011] FCA 968 at [31]. In summary, the legislative scheme of the CMSH Act was deliberate in its intention to facilitate the development of such systems in the workplace. The principles of statutory construction concerning the definition of “workplace instrument” objectively favour the applicant’s position; Thiess v Collector of Customs (2014) 306 ALR 594 at [22] – [23].
14 Second, in relation to the requirement that the purported workplace instrument “concern” the relationship between employees and employer, the applicant’s case is that the Fitness for Work Policy and the Safe Loading SOP apply to all workers and employees at the Mine, and the relevant duties, rights, and obligations of employers and employees. The applicant draws a distinction in the wording of the definition and the use of the word “concern” as opposed to such words as “regulate”. The applicant contends that the ordinary meaning of the word “concern” means to “relate to or otherwise affect”. In this respect, there appears from the applicant’s submissions to be a lower threshold because of the use of the word “concern”.
15 The applicant refers to the decision of this Court in Australian Licenced Aircraft Association v Sunstate Airlines (Qld) Pty Ltd [2012] FCA 1222; 208 FCR 386 (ALAA). In ALAA Logan J observed at [33]-[34]:
[33] A regulation which, like reg 51 or reg 215(9) of the CA Regs, imposes a duty on a person as an incident of undertaking a particular task in the course of employment — “engaged in the maintenance of an Australian aircraft” (reg 51) or as an incident of a particular type of employment — operations personnel of an operator (reg 215(9)) does not regulate the relationship between that person and his employer. Having regard to the dictionary definitions cited by Barker J in ALAEA v International Aviation Service, each of these provisions in the CA Regs might readily be characterised as a provision which “regulates” the conduct of a person to whom it applies but the object of that regulation is not the relationship between that person as an employee and his employer but rather that of air safety by the imposition of particular reporting obligations. Common to the definitions of “workplace instrument” and “workplace law” in s 12 of the Fair Work Act is the object of the relationship between employer and employee. Provisions which do no more than use the status of employer or employee as an incidental touchstone for the imposition of duties serving other ends do not fall within the terms of these definitions.
[34] Insofar as there may, because of this feature of the definitions, otherwise be room for debate as to whether provisions in statutes or regulations dealing with occupational health and safety matters had as their object the relationship between employer and employee, that debate is quelled by the express inclusion of such provisions in the definition of “workplace law”. That express inclusion also sets the limit of the additional reach of the definition.
(emphasis added)
Submissions of the respondent
16 The respondent did not dispute that the CMSH Act and CMSH Regulations were workplace laws, satisfying para (d) of the definition of “workplace law” in s 12 of the Fair Work Act.
17 Nonetheless the respondent argued that neither the Fitness for Work Policy nor the Safe Loading SOP were “made under, or recognised by” the relevant workplace laws, as required by (a) of the definition of “workplace instrument”.
18 The respondent ultimately contended that the term “made under, or recognised by” is capable of either a broad or narrow interpretation. The respondent urged upon the Court a narrow interpretation of the words “made under, or recognised by” for the purposes of the s 12 definition of “workplace instrument”. A narrow interpretation is one which envisions an instrument directly made or promulgated under a specific legislative provision by some authority or agency so authorised, and which concerns collective terms and conditions of employment, rather than an individualised policy. The respondent submits that ordinarily, although not always, a workplace instrument is an award, enterprise agreement or other like instrument; see for example Construction Forestry Mining and Energy Union v De Martin & Gasparini Pty Ltd (No 2) [2017] FCA 1046 at [25], see also Barnett at [32].
19 Further, the respondent argues that for the purposes of statutory construction, the applicant misled the Court in its submission that a workplace instrument is one that can be given legal force, effect or significance by reason of a workplace law. The respondent reiterated its submission that the plain wording of the section required it to be “made under, or recognised by” a workplace law. As such, anything to the contrary or falling short is simply “judicial gloss”.
20 The respondent drew the Court’s attention to earlier legislative enactments which used terms comparable to “workplace instrument”, including the definition of “industrial instrument” in section 298B (1) of the Workplace Relations Act 1996 (Cth) and subsequently s 779(1) of the Work Choices Workplace Relations Act 1996 (Cth). In this respect, the respondent relied on the observations of Mansfield J in Barnett at [33]-[34] where his Honour stated:
33 The Transitional Act repealed the WR Act. It nevertheless preserved the status of certain instruments called “transitional instruments” for its purpose. Those instruments can extend to instruments made under the WR Act. Instruments made under the WR Act do not qualify as workplace instruments because the WR Act has been repealed. But they are variously recognised under the Transitional Act, such as their legal effect continues in certain circumstances. The ALAEA case so determined: see per Barker K at [234], a conclusion reached after careful consideration of the competing contentions: see at [205]-[203]. That is a legislative device apparently also used when the Industrial Relations Act 1988 (Cth) was repealed and replaced by the WR Act. The legislative ancestor of the “workplace instrument” in the FW Act appears to be the corresponding “industrial instrument” in the WR Act: see Part 16 of the WR Act, including the definition of “industrial instrument” in s779. It is not necessary to undertake a detailed analysis of the various forms of instrument made under the WR Act, or recognised by it, and which now continue to have effect by reason of the operation of the Transitional Act. The ALAEA case provides illustration.
…
34 …the correspondence between the relevant wording of the two successive definitions in the WR Act and then the FW Act supports the conclusion that the FW Act did not intend to expand the scope of a “workplace instrument” simply by changing the designated name.
21 The respondent argued, as a matter of policy, that should the Safe Loading SOP and Fitness for Work Policy be deemed “workplace instruments”, various provisions of the Fair Work Act would become highly unworkable.
Consideration
22 The Explanatory Notes of the Coal Mining Safety and Health Bill 1999 (Qld) included the following:
POLICY OBJECTIVES
The major policy objective of this Bill is to encourage all persons involved in the coal mining industry to improve safety and health by providing industry with modern safety and health legislation.
This is to be achieved by repealing the Coal Mining Act 1925 and introducing modern legislation that adopts the following principles:
• an emphasis on duty of care obligations of employers and employees, and other persons involved in the supply of materials or services;
• joint employer and employee planning for safety and health by developing site-specific safety management systems;
• on-site management of risks involved in mining;
• specific provision for employee involvement in safety at the site;
• establishment of a tripartite Coal Mining Safety and Health Advisory Council to advise the Minister; and
• a major monitoring and enforcement role for the Inspectorate.
23 Relevantly the CMSH Act provides:
Coal Mining Safety and Health Act
41 Obligations of coal mine operators
(1) A coal mine operator for a coal mine has the following obligations –
…
(a) To ensure the site senior executive for the mine –
(i) develops and implements a safety and health management system for the mine;
…
42 Obligations of site senior executive for coal mine
A site senior executive for a coal mine has the following obligations in relation to the safety and health of persons who may be affected by coal mining operations –
…
(c) to develop and implement a safety and health management system for all persons at the time, including contractors and service providers;
…
24 Sections 41 and 42 of the CMSH Act confer upon the coal mine operator (in this case BMA), and site senior executive an obligation to implement a “safety and health management system”. The obligation to adhere to a mine’s safety and health management system is imposed upon all those intended to commence work at the Mine under Part 3 of the CMSH Act. Section 62 of the CMSH Act provides further detail on the necessary safety and health management system. Notably, the applicant directs the Court’s attention to s 62(3)(d) of the CMSH Act which provides:
62 Safety and health management system
…
(3) The safety and health management system must be adequate and effective to achieve an acceptable level of risk by-
…
(d) including principal hazard and management plans and standard operating procedures; …
(emphasis added)
25 Regulations 41, 42 and 133 of the CMSH Regulations provide:
41 Safety and health management system for alcohol
(1) A coal mine’s safety and health management system must provide for controlling risks at the mine associated with the excessive consumption of alcohol.
(2) The system must provide for the following about alcohol consumption for persons at the mine –
a) An education program;
b) An employee assistance program;
c) The following assessments to decide a person’s fitness for work-
(i) voluntary self-testing;
(ii) random testing before starting work;
(iii) testing the person if someone else reasonably suspects the person is under the influence of alcohol.
(3) In developing the fitness provisions, the site senior executive for the mine must comply with section 10, other than section 10(1) (a), as if-
a) A reference in the section to a standard operating procedure were a reference to a fitness provision; and
b) A reference in the section to the coal mine workers with whom the site senior executive consulted were a reference to representatives of the coal mine’s workers.
(4) In this section –
“fitness provisions” means the part of the safety and health management system that provides for the things mentioned in subsection (2).
42 Safety and health management system for personal fatigue and other physical and psychological impairment, and drugs
(1) A coal mine’s safety and health management system must provide for controlling risks at the mine associated with the following:-
…
(4) The system must provide for the following about drug consumption or ingestion for persons at the mine-
…
(e) the following assessments to decide a person’s fitness for work-
(i) voluntary self-testing;
(ii) random testing before starting, or during, work;
(iii) testing the person if someone else reasonably suspects the person’s ability to carry out the person’s duties at the mine is impaired because the person is under the influence of drugs.
(5) The site senior executive must consult with a cross-section of coal mine workers at the mine in developing the fitness provisions.
(6) In developing the fitness provisions, the site senior executive must comply with section 10 , other than section 10 (1) (a) and (d) (ii) (C), as if a reference in the section to a standard operating procedure were a reference to the fitness provisions.
(6A) If the fitness provisions provide for the assessment of coal mine workers for a matter mentioned in subsection (1) (a) or (b), the site senior executive must establish the criteria for the assessment in agreement with a majority of coal mine workers at the mine.
(7) If the fitness provisions provide for the assessment of coal mine workers for a matter mentioned in subsection (1)(c), the site senior executive must make a reasonable attempt to establish the criteria for the assessment in agreement with a majority of workers at the mine.
(7A) If the majority of workers at the mine disagree with the criteria for the assessment under subsection (7), the criteria for assessment stated in a recognised standard apply until an agreement is reached.
(8) In this section—
"Fitness provisions" means the part of the safety and health management system that provides for the things mentioned in subsections (2) to (4).
…
133 Discharging loads
(1) A surface mine must have a standard operating procedure for discharging loads from fixed and mobile plant.
(2) The procedure must provide for the following for dump trucks—
(a) the design, construction and maintenance of safety berms on roads used by the trucks;
(b) identifying risks of the trucks overturning;
(c) safe dump areas and routes;
(d) methods of working with the trucks.
26 Keeping in mind these regulations, and the requirement of the CMSH Act to create and implement the safety and health management system more broadly, reg 10 of the CMSH Regulations provides a detailed procedure for developing standard operating procedures in consultation between the site senior executive and the coal mine workers, as follows:
10 Developing standard operating procedures
(1) The site senior executive for a coal mine must ensure the following steps are taken in developing standard operating procedures for managing and controlling hazards at the mine—
(a) the site senior executive must consult with a cross-section of the mine’s coal mine workers involved in carrying out a task under the proposed standard operating procedure to identify the hazards associated with the task and ways of controlling the hazards;
(b) the site senior executive must prepare a draft standard operating procedure and give a copy of the procedure to the coal mine workers with whom the site senior executive consulted;
(c) if the coal mine workers agree with the draft standard operating procedure, the site senior executive must prepare the procedure as the final standard operating procedure;
(d) if the coal mine workers do not agree with the draft standard operating procedure—
(i) for a disagreement that is not about a legal or technical matter—the site senior executive must decide the disagreed matter and prepare the final standard operating procedure; or
(ii) for a disagreement that is about a legal or technical matter—the site senior executive must—
(A) obtain further information or advice, including, for example, from a person having the necessary qualifications and experience to give the advice or from a recognised text on the matter; and
(B) after consulting with the workers about the information or advice, prepare a further draft standard operating procedure and give a copy of the procedure to the workers; and
(C) if the workers disagree with the further draft—decide the disagreed matter and prepare the final standard operating procedure;
(e) the site senior executive must include the final standard operating procedure in the mine’s safety and health management system.
(2) The site senior executive must ensure—
(a) the final standard operating procedure accords with—
(i) all matters agreed, under this section, between the site senior executive and coal mine workers; and
(ii) the site senior executive’s decision, under this section, on any disagreed matters; and
(b) a record is kept of the disagreed matters.
(3) In developing the standard operating procedure, the site senior executive must—
(a) use a risk assessment process recognised by the mining industry as an acceptable process for identifying and controlling hazards; and
(b) have regard to the methods of controlling the hazard stated in the database kept by the CEO under section 280 (1) (a) (i) of the Act .
27 The Safe Loading SOP is a document produced by BMA. It states that it is referable to reg 133 of the CMSH Regulations.
28 The Introduction of the Safe Loading SOP states:
The intent of the Standard Operating Procedure is to describe the process associated with routine truck operations around loading and dumping in pit or at the ROM at Goonyella Riverside Mine.
29 “Key hazards” are described in the Safe Loading SOP as follows:
(1) Equipment/Vehicle /Pedestrian Interaction
(2) Uncontrolled Movement of Equipment
(3) Truck going over Edges /Tip head
(4) Explosion by Digging up Misfire
(5) Interaction with Power lines
(6) Truck Rollover
(7) Discharging Loads
(8) Geotechnical Failure
30 The following items are set out under the heading “General”:
1. Only trained, assessed and authorised operators can conduct loading/discharging operations.
2. Rear Dump Trucks in a queue must be staggered in order to maintain operator vision of following vehicles and must not reverse unless spotter is in place with positive communication.
3. Vehicles and mobile equipment not involved in the direct operational activity of a restricted area, an active mining area or work area must not approach within 50 metres of any operating equipment.
4. Ensure adequate lighting is in place to illuminate the area, having consideration for shadow, contrast and glare. Additional lighting sets may need to be set-up for night-time operations.
5. At a minimum park lights must be on at all times for a vehicle queued.
6. Maintain 25 metre exclusion zone between dumping and loading operations and power lines and substations at all times, without a GRM FRM Authority to Operate within 25m of Power Lines and Substation.
7. Do not load or tip on a cross slope, as per manufacturer's specifications.
8. Maintain distances from crests and slopes as per BMA PRO Working Near Crests and Slopes Procedure.
9. Floor grades must be assessed and controlled in relation to vehicle or mobile equipment manufacturers recommended limitations.
(emphasis added)
31 The Fitness for Work Policy was also a document produced by BMA. The purpose of the document was described as follows:
The purpose of this procedure is to ensure that all persons are fit to be engaged in activities at the workplace. Physical and psychological conditions such as fatigue, grief, stress and illness as well as drugs and alcohol can all result in reduced Fitness for Work. This procedure seeks to reduce individual and organisational exposure to the potentially harmful consequences of conditions or substances which reduce Fitness for Work.
The policy and procedures for Fitness for Work are not intended to include or pre-empt every possible scenario that may be encountered in the course of administering a Fitness for Work program - it should be read and administered in the context of due prudence and reason.
This Procedure supports employee fitness for duty and wellbeing and any employee feeling the process is not being properly followed can utilise the appropriate mine site process.
32 The Scope of the Fitness for Work Policy set out therein is as follows:
The intent of this Procedure is to identify, assess and control the risks at the mine associated with the improper use of drugs and alcohol and other physical or psychological impairment associated with coal mine workers or visitors of Goonyella Riverside Mine.
This Procedure has been developed in accordance with s.41 and s.42 of the Coal Mining Safety and Health Regulations 2001 (CMSHR) and forms part of Goonyella Riverside Mine's Safety and Health Management System.
For matters relating to controlling the risks of personal fatigue, this Procedure must be read in conjunction with the GRM PRO Fatigue Management Procedure and the GRM HSE Fitness for Work Hours of Work Standard.
33 Clause 10.3 of the Fitness for Work Policy provides:
Random Selection Testing
The guidelines for the random selection of personnel have been developed to maintain the integrity of the Drug and Alcohol Policy.
All Coal Mine Workers at GRM may be selected for drug and alcohol testing using a 'random selection' process. This can include selection for drug and alcohol testing when attempting to enter a Mine Access Point before commencing work or at any other time during the shift.
An additional random process will be utilised to select a sample of Coal Mine Workers who will be required to have a portion of their urine sample sent for laboratory testing for synthetic drugs. The CMW may enter the Mine Access Point until the results of the test for synthetic drugs are received.
If the person is found to have a blood alcohol content, urine drug level (or an oral fluid level for THC) at or above the cut off level, then they must be deemed to be unfit for work.
Any Coal Mine Worker who is delayed in presenting for work due to the completion of a random selection drug and alcohol test, will be paid from their normal start time. After the test is completed, the Coal Mine Worker must report to their Supervisor before commencing work to ensure information from the pre-start is provided.
If the Coal Mine Worker is selected for a random selection drug and alcohol test before commencing work, the Coal Mine Worker must commence their travel to the testing location at their normal shift start time, however, may choose to present earlier.
34 Both the CMSH Act and the CMSH Regulations are workplace laws. It appears on the plain construction of s 12, and for the purposes of s 341 (1) of the Fair Work Act, that the Safe Loading SOP and the Fitness for Purpose Policy are instruments which were made under or recognised by the CMSH Act and the CMSH Regulations. Prima facie, the Safe Loading SOP and the Fitness for Purpose Policy would seem to concern the relationship between employers and employees.
35 However before making a conclusive determination on this issue it is helpful to have regard to the authorities, in particular the decision of Mansfield J in Barnett v Territory Insurance Office [2011] FCA 968, 196 FCR 116, on which both parties rely.
36 Barnett involved consideration of the question whether a contract of employment was a workplace instrument for the purposes of s 341 (1) of the Fair Work Act. It was common ground there that the relevant contract of employment concerned the relationships between employers and employees so as to satisfy para (b) of the definition – the key issue before the Court was whether the contract of employment was an instrument “made under, or recognised by, a workplace law”.
37 In Barnett, Mansfield J referred in turn to the earlier decision of Barker J in Australian Licensed Aircraft Engineers Association v International Aviations Service Assistance Pty Ltd [2011] FCA 333 (ALAEA).
38 In ALAEA Barker J found that a contract of employment made during the operation of the Workplace Relations Act 1996 (Cth) was a workplace instrument recognised by a workplace law (namely the Fair Work (Transitional Provisions and Consequential Amendments Act) 2009 (Cth)). His Honour found that the contract was an Individual Transitional Employment Agreement (ITEA), which came into operation only by its execution, its lodgment with the Workplace Authority Director and the issue of a receipt, or following the issue of a notice under the Workplace Relations Act. To that extent his Honour found that the Transition Act, by recognising and giving legal effect to the ITEA, gave legal life to an agreement which prescribed the rights, duties and obligations governing an employment relationship, and assumed its continued existence. Justice Barker in that case also found that the Transitional Act concerned the relationship between employees and employers.
39 Returning to Barnett, Mansfield J at [22] observed that, by acknowledging the existence of, and treating as valid, the terms of a contract of employment, subject to the operation of the Fair Work Act, it could fairly be said that the Act recognised the contract of employment. His Honour continued:
23. However, in my judgment, the concept of recognition in the definition of “workplace instrument” does not have that expanded meaning. I do not think that such a meaning can properly be derived from the context and background to that expression, or having regard to other considerations to which I refer below.
40 His Honour reached that conclusion because:
underpinning every employment relationship was a common law contract of employment, namely a contract under which a person agreed to work for another person in return for remuneration. The existence of an award did not create the relationship of employer and employee. Accordingly it was unlikely that the concept of recognition by a “workplace law” was intended to extend to the contract of employment itself ([24], [29]);
the concept of “recognition” by a workplace law in the definition of “workplace instrument” was intended to refer to instruments which were given particular legal effect or legal life by a statutory enactment. The Fair Work Act did not enliven the contractual rights of the parties as expressed in the relevant contract of employment before Mansfield J, unlike that in the ALAEA case (at [30]);
the expression “an instrument made under or recognised by a workplace law ...” in the definition of “workplace instrument”, in conjunction with the definition of “workplace law” means an instrument must be given legal significance by reason of a particular workplace law (at [31]).
41 Barnett was further examined by Logan J in Australian Licenced Aircraft Engineers Association v Sunstate Airlines (Qld) Pty Ltd [2012] FCA 1222, where his Honour found that provisions of the Civil Aviation Regulations 1988 (Cth) were neither a workplace law nor a workplace instrument as defined by the Fair Work Act, and thus could not be a source of a “workplace right” for the purposes of that Act (at [11]). Justice Logan in that case found merit in the submission that instruments of a legislative nature such as regulations fell outside the definition of “workplace instrument”. Respectfully, that particular finding is plainly correct. The instruments before me – namely the Safe Loading SOP and the Fitness for Work Policy – are not subsidiary legislation. Further, to the extent that Logan J found that the relevant civil aviation regulations were not “workplace laws”, I do not consider it appropriate to equate the legislation before his Honour, with the State legislation currently before me which in my view (and which the parties agree) are workplace laws. The case before me is entirely distinguishable from that before Logan J.
42 The common position of the parties is that the CMSH Act and CMSH Regulations are workplace laws, thus satisfying para (d) of the definition of “workplace law” in s 12 of the Fair Work Act. Both the CMSH Act and the CMSH Regulations mandate identification of workplace hazards, and the development of systems – including operating procedures – to address them, including with respect to drugs.
43 Finally, as a matter of construction, including by regard to the Explanatory Notes to the Coal Mining Safety and Health Bill 1999 (Qld), I am satisfied that the definition of “workplace law” in para (d) of s 12 of the Fair Work Act – including those matters pertaining to “occupational health and safety matters” – was intended to include such legislation as the CMSH Act and CMSH Regulations.
44 I am not satisfied that a “workplace instrument” can only be one which has been directly made or promulgated by “some authority or agency” so authorised as was the case under now repealed legislation, and as submitted by the respondent. Rather, a workplace instrument includes an instrument which is given legal effect or legal life by a workplace law. That is the case here in relation to both the Safe Loading SOP and the Fitness for Work Policy. Further, both the Safe Loading SOP and the Fitness for Work Policy provide direction in respect of conduct of all workers and employees on the mine site, to promote safety on the site. To that extent, they are also instruments which concern the relationships between employers and employees. The submission of BMA concerning the use of plurals in the definition of “workplace instrument” in s 12(b) of the Fair Work Act is not persuasive.
45 In summary, I am satisfied that the Safe Loading SOP and the Fitness for Work Policy are workplace instruments within the meaning of s 12 of the Fair Work Act.
(2) PROPER CONSTRUCTION OF S 274 OF THE CMSH ACT (ISSUES 3, 4 AND 5)
46 The key issues in this case in respect of s 274 of the CMSH Act are whether that section gives rise to a workplace right within the meaning of s 341 of the Fair Work Act, and whether Ms Star exercised that workplace right. I note again that s 341 of the Fair Work Act relevantly defines “workplace right” as follows:
(1) A person has a workplace right if the person:
(a) is entitled to the benefit of, or has a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body; or
(b) is able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument; or
…
47 Section 274 of the CMSH Act provides:
Where coal mine worker exposed to immediate personal danger
(1) Subject to section 273(2) and (3), if a coal mine worker (the original worker) believes that there is immediate personal danger, the worker has the right—
(a) to remove himself or herself to a position of safety; and
(b) to refuse to undertake a task allocated to the worker that may place the worker in immediate personal danger.
(2) The coal mine operator for the coal mine or the coal mine operator’s representative must not disadvantage the coal mine worker for exercising the worker’s rights under subsection (1).
Maximum penalty—200 penalty units.
(3) Subsection (4) applies if the coal mine operator or the operator’s representative subsequently asks or directs another coal mine worker (the subsequent worker) to place himself or herself in the position from which the original worker has removed himself or herself, or to undertake a task that the original worker has refused to undertake.
(4) The operator or the operator’s representative must advise the subsequent worker that the original worker exercised rights under subsection (1) because the original worker believed that there was a serious danger to the original worker’s safety or health.
Maximum penalty for subsection (4)—200 penalty units.
48 Plainly, s 274 (1) of the CMSH Act permits a coal mine worker to remove himself or herself to a position of safety and refuse to undertake an allocated task that may place the worker in immediate personal danger if he or she believes there is immediate personal danger.
49 I am satisfied that the requisite belief of the coal mine worker imported by that section is subjective.
50 That “immediate personal danger” is solely judged against a subjective standard for the purposes of s 274 is supported by reference to both the Explanatory Notes to the Coal Mining Safety and Health Bill, and the CMSH Act itself.
51 The Explanatory Notes relevantly state:
Provides that if a coal mine worker believes there is immediate personal danger the worker can remove him/herself to a position of safety and refuse to undertake a task that may place the worker in immediate personal danger. It also provides that a coal mine operator or the operator's representative must not disadvantage the coal mine worker for taking this action.
52 Although the Notes add little to the terms of the CMSH Act, it reinforces a finding that it is the subjective belief of the coal mine worker which is critical. Whether the task objectively may place the worker in immediate personal danger appears irrelevant – it is the subjective belief of the worker which is key.
53 If s 274 required the imposition of an objective standard qualifying the coal mine worker’s belief, the legislation could have been drafted with that requirement. Section 274 can be contrasted with, for example:
s 101 of the CMSH Act, which applies if a site safety and health representative reasonably believes a danger to the safety or health of coal mine workers exists because of coal mining operations; and
s 166 of the CMSH Act, which applies if an inspector or inspection officer reasonably believes a risk from coal mining operations may reach an unacceptable level.
54 In relation to whether Ms Star believed that there was immediate personal danger to her at the relevant time, her evidence was as follows:
Ms Star, is the folder in front of you still opened at page 59 which has paragraph 25 in front of it?---Yes, it is. Yes.
25 on it, I should say. Can I ask you, please, to read paragraph 25 to yourself?---Yes, I have.
And can I ask you, please, to look at the sentence on the third line which reads:
I was also concerned about my personal safety if I carried out the task in the dark.
Do you see that sentence?---Yes, I do.
Can you please to her Honour what you meant by that sentence and why you had that concern?---Because the area was only lit up by grader lights, it wasn’t sufficient to see the whole area, and – sorry – I’m just thinking how to put it – and there were – there could have been hazards that I couldn’t see on the side of the roads, and there could be rocks which could have caused the truck to roll or – or something, and then I could have personally injured myself within the cabin of the vehicle. Yes, in the cabin of the vehicle. So if I rolled the truck, yes, I could have personally hurt myself and potentially maybe hurt others within the area as well.
(transcript 18 February 2021 pp 36-37)
55 I further note Ms Star’s evidence that:
She was driving a very large truck weighing in the region of one hundred tonnes;
She was driving the truck at a coal mine in the dark on a sloped surface with dips and hollows;
She was not allowed to run over rocks of any size because it could damage the wheels of the truck;
There were gullies or culverts on the sides of the ramp because of rain;
Although she was dumping on a haul road 35 metres wide, the truck she was driving had a wide turning circle;
It was possible to misjudge the ramp if there was insufficient lighting;
There was a risk that the truck could roll or be put on its side, resulting in possible injury to her; and
It may not be possible to see where the grader was, or if the driver suddenly moved the grader.
(transcript 18 February 2021 pp 45-48)
56 While I note that Ms Star gave evidence that insufficient lighting could have resulted in her driving the truck such as to cause damage to the truck or injury to other people, her evidence was plainly that it could have resulted in injury to herself. I do not accept the respondent’s submission that the only period to which any regard could be had was the moment when Ms Star was in situ, causing the truck she was driving to physically dump the load. To position the truck to dump the load required Ms Star to drive the truck down the ramp, in the dark, and drive it from the ramp again. The fears expressed by Ms Star necessarily encompassed the positioning of the truck so as to dump the load and remove the truck from the ramp.
57 I am further satisfied that even if s 274 (1)(b) introduced an objective element as submitted by the respondent, that element was satisfied in the circumstances given Ms Star’s unrebutted evidence of the hazards of driving large vehicles in unlit conditions at the Mine.
(3) WHETHER EXERCISE OF WORKPLACE RIGHTS BY MS STAR (ISSUES 6, 7, AND 8)
58 In order for the applicant to succeed in the present proceedings it must establish that Ms Star exercised workplace rights in respect of her conduct at the relevant time.
59 It is not in dispute that in the early hours of 10 November 2017 Ms Star’s duties required her to dump loads of rejects at Ramp 14 at the Mine. The evidence is further clear that Ms Star believed that the ramp and its surrounds were inadequately lit, and that dumping the rejects in the dark would expose her to immediate personal danger (as per s 274 of the CMSH Act). Accordingly, Ms Star refused to dump a second load of rejects in those conditions.
60 In summary:
s 274 of the CMSH Act gives mine workers the right to both remove themselves to places of safety and refuse to undertake tasks which may place the worker in immediate personal danger if the worker believes there is immediate personal danger;
the Safe Loading SOP was a workplace instrument within the meaning of s 12 of the Fair Work Act, made pursuant to the CMSH Act and the CMSH Regulations; and
the Safe Loading SOP specifically required that adequate lighting be in place to illuminate relevant areas.
61 I am satisfied that:
In refusing to dump a load of rejects at Ramp 14 at the relevant time because of her belief that she would be in immediate personal danger in doing so because of inadequate lighting, Ms Star was exercising a workplace right arising from the operation of s 274 of the CMSH Act, within the meaning of s 341 (1) of the Fair Work Act; and
In refusing to dump a load of rejects at Ramp 14, Ms Star was exercising a workplace right arising from a workplace instrument, namely the Safe Loading SOP.
62 Section 341 (1)(b) of the Fair Work Act further provides that a person has a workplace right if, inter alia, that person is able to participate in a process or proceedings under a workplace law or workplace instrument. “Process or proceedings under a workplace law or workplace instrument” includes “any other process or proceedings under a workplace law or workplace instrument” (s 341 (2) (k)). I am satisfied that Ms Star was required to undertake a drug and alcohol test on 9 November 2017 in accordance with the Fitness for Work Policy, which I have already found was a workplace instrument, that her participation in that test was participation in a process or proceedings under a workplace instrument, and further that that her participation in the test was in the discharge of a responsibility imposed by a workplace instrument.
(4) WHETHER THE RESPONDENT ENGAGED IN ADVERSE ACTION AGAINST MS STAR (ISSUES 9 AND 10)
63 Relevantly for present purposes, “adverse action” is defined by s 342(1) Item 3 (d) of the Fair Work Act as follows:
Adverse action is taken by….
a person (the principal) who has entered into a contract for services with an independent contractor against the independent contractor, or a person employed or engaged by the independent contractor
if…
the principal:
…
(d)
refuses to make use of, or agree to make use of, services offered by the independent contractor;
64 It is not in dispute that at all relevant times Ms Star was employed by WorkPac, an independent contractor, rather than BMA. It is further not in dispute that on 10 November 2017, and again on 24 September 2018, BMA excluded Ms Star from working at the Mine site.
65 The relationship between BMA and WorkPac was the subject of a Services Contract – Labor Hire (Services Contract) signed 18 September 2017. A copy was annexed to an affidavit of the applicant’s lawyer Mr Joseph Kennedy dated 8 October 2018. The services provided by WorkPac were described in Schedule 1 to the Services Contract. Importantly, the Overview of the Scope of Services was as follows:
1. The Services encompass the provision of suitably qualified Personnel for short, medium and long term engagements at the Company’s operations located in various sites within Australia.
66 The Services Contract set out standard requirements for pre-employment checks in addition to such matters as personal protective equipment requirements for recruited personnel.
67 In summary, the respondent submits that the applicant did not establish that the services that were to be provided by WorkPac under the Services Contract were refused in any manner. It submits that there was insufficient evidence to establish whether, and to what extent, the services that were to be provided by WorkPac under the contract were provided or not (by reference to number of hours: see transcript 18 February 2021 p 85).
68 In particular, the respondent submitted that the work performed by Ms Star at the Mine was not the relevant “services” under the contract. In order to demonstrate that the exclusion of Ms Star amounted to a refusal by BMA to make use of WorkPac’s services, the applicant was required to establish that Ms Star’s exclusion meant that there had been some impact or effect on the gross number of hours offered by WorkPac. The applicant had not established that.
69 In summary, the respondent submitted that the deficiency in the applicant's argument was that it assumed, in the absence of evidence (or proof), that the exclusion of Ms Star necessarily meant that BMA refused some aspect of the services offered by WorkPac under the Services Contract, being the gross number of hours.
70 The applicant submitted that WorkPac had offered and discharged its obligation to provide suitably qualified personnel to the respondent, in part, by supplying Ms Star. The applicant referred to cl 12 of the Services Contract, which specifically set out a procedure for addressing circumstances where BMA was dissatisfied with personnel offered by WorkPac, and which provided:
12. CONTRACTOR’S PERSONNEL AND CONTRACTOR’S KEY PERSONNEL
12.1 If the Company or the Company's Representative is dissatisfied with the performance of the Services by any of the Contractor's Personnel:
a) The Company may hold discussions with the Contractor to address the Company's dissatisfaction and give the Contractor a reasonable opportunity to remedy the Issue;
b) If, on a reasonable basis, the Company remains dissatisfied, the Company or its Company's Representative may give written notice to the Contractor requiring removal of the relevant Contractor's Personnel from provision of the Services; and
c) upon receipt of a notice pursuant to clause 12.1 b), the Contractor must immediately comply with the notice and provide, at the Contractor's expense, a suitable replacement.
12.2 The Contractor must:
a) whenever the Company or the Company's Representative directs the Contractor to do so, provide the Company with any information reasonably required regarding Key Personnel; and
b) use reasonable endeavours to:
(i) supply and retain the Key Personnel and not remove the Key Personnel from their position without the prior approval in writing of the Company or the Company's Representative;
(ii) If it is necessary to replace Key Personnel (whether as a result of death, Illness, Injury, resignation, or an act or omission of the Contractor), promptly replace the relevant Key Personnel, at the Contractor's expense, with a person of comparable skill, experience, expertise and qualification, approved by the Company or the Company's Representative
(iii) ensure that each of the Key Personnel is available at the times set out in this Contract or as otherwise required to ensure Completion; and
(iv) ensure that the Contractor's Personnel and Key Personnel:
(A) properly perform their roles and responsibilities; and
(B) have appropriate skill, experience, professional qualifications and membership of appropriate professional organisations and have completed the appropriate training and competency assessments in order to work on the Site; and
…
71 The applicant submitted that effect of the exclusion of Ms Star from the Mine was that if WorkPac continued to offer Ms Star as part of their suitably qualified personnel, the respondent would refuse the performance of the contract by way of provision of services by Ms Star.
72 In my view the applicant’s submission that the conduct of BMA in excluding Ms Star from the Mine constituted adverse action for the purposes of the Fair Work Act is substantiated.
73 I am not persuaded that BMA could only be said to have refused to make use of services offered by its contractor WorkPac if BMA refused to allow WorkPac to offer suitably qualified personnel to work up to a gross number of agreed hours, and that there was no adverse action by BMA if WorkPac substituted workers acceptable to BMA for Ms Star.
74 The Service Contract obliged WorkPac to provide BMA with “suitably qualified personnel for short, medium and long term engagements”. It also appears to be common ground that, under purchase orders, the respondent requested a gross number of hours of work to be provided by those suitably qualified personnel. Evidence to that effect was given by Mr Brent Gee, the Manager Production Coal at the Mine, in his affidavit dated 25 November 2020. In that affidavit Mr Gee also gave evidence that none of the purchase orders were personal or specific to any individual. Further, it does not appear to be in dispute that Ms Star was a suitably qualified worker within the meaning of the Service Contract.
75 However Part 3.1 of the Fair Work Act addresses general protections including the provision of effective relief for persons who have been, inter alia, adversely affected as a result of contraventions of that Part: s 336. The definition of adverse action in s 342(1) item 3 (d) includes a principal – namely an entity such as BMA – taking adverse action against not only an independent contractor, but against a person employed or engaged by the independent contractor – namely a person such as Ms Star – in circumstances where:
the independent contractor offers the services of that employee as part of the discharge by the independent contractor of its obligations, and
the principal refuses the services of that employee.
76 A construction of the definition of adverse action in s 342(1) as advanced by the respondent – potentially permitting exclusion by a principal of an employee provided by an independent contractor from a site, for reasons which are prohibited by the Fair Work Act – would be contrary to the policy of the Fair Work Act, in particular as exemplified by s 340 which prohibits a person a person taking adverse action against another person because the other person has, inter alia, exercised or proposed to exercise a workplace right.
77 I note cl 12 of the Service Contract which addresses concerns of BMA in respect of personnel provided by WorkPac. Clause 12 contemplates a process where BMA can hold discussions with WorkPac to address BMA’s dissatisfaction with particular personnel. It is unclear to me however how this clause advances determination of the question whether BMA has refused services under the Services Contract. Rather, obligations imposed by cl 12 are relevant to the nature of the contractual obligations of the parties in question, as opposed to informing consideration of whether the principal has engaged in adverse action within the meaning of s 342 (1) Item 3(d).
78 The evidence before the Court is that BMA refused to allow Ms Star to enter the Mine site and therefore work at the Mine as an employee of WorkPac, in performance by WorkPac of its contract with BMA, either on 10 November 2017 or 24 September 2018. In that regard, BMA refused to make use of services offered by WorkPac insofar as those services related to Ms Star working on the BMA Mine site on either of those dates. This constituted adverse action on the part of BMA against Ms Star within the meaning of s 342(1) Item 3 (d) of the Fair Work Act.
(5) WHETHER THE RESPONDENT ADVISED, INCITED OR ENCOURAGED WORKPAC TO TAKE ADVERSE ACTION AGAINST MS STAR (ISSUES 11 AND 12)
79 The applicant claims that, by s 362 of the Fair Work Act, the respondent contravened s 340 of the Act on 10 November 2017 in that, because she had exercised a workplace right in the course of her shift on 9-10 November 2017, the respondent advised, encouraged or incited WorkPac to exclude Ms Star from the Mine thereby injuring her in her employment, altering her position to her prejudice and/or discriminating between her and other employees of WorkPac at the Mine.
80 Section 362 of the Fair Work Act provides:
(1) If:
(a) for a particular reason (the first person's reason), a person advises, encourages or incites, or takes any action with intent to coerce, a second person to take action; and
(b) the action, if taken by the second person for the first person's reason, would contravene a provision of this Part;
the first person is taken to have contravened the provision.
81 It is not in dispute that, in an email sent on 10 November 2017 by Ms Raina Alexander, BMA informed WorkPac that Ms Star was no longer required at the Mine. Plainly, Ms Star no longer being “required at the Mine” meant that Ms Star was no longer welcome at the Mine and was no longer permitted by BMA to work there. To that extent it is clear that BMA advised, encouraged or incited WorkPac to take action directing Ms Star to stay away from the Mine.
82 The relevant question is whether the action of WorkPac, if taken by WorkPac for BMA’s reasons, would contravene a provision of Part 3.1 of the Fair Work Act.
83 The applicant submitted that the exclusion of Ms Star from the Mine left WorkPac with no alternative but to terminate Ms Star’s assignment with the respondent, and that this necessarily left her employment more precarious. Further, the applicant submitted, in summary:
The statement by BMA that Ms Star was not required was advice or encouragement to terminate Ms Star’s deployment to the Mine where BMA knew that WorkPac had deployed Ms Star to the Mine for four years and WorkPac’s business was to supply labour to clients;
WorkPac’s consequential action in preventing Ms Star from attending the Mine constituted adverse action against her under Items 1 (b), (c) and/or (d) of s 342(1) of the Fair Work Act, because:
• It injured her in her employment with WorkPac by depriving her of work she had been employed to perform (Item 1(b))
• It altered Ms Star’s position to her prejudice because her inability to work at the Mine made her ongoing employment with WorkPac less secure (Item 1(c)); and
• The action also adversely affected Ms Star, by comparison with WorkPac’s other employees at the Mine, in that she was singled out (Item 1(d)).
84 BMA submitted that this aspect of the applicant’s case failed because it had not established that WorkPac’s decision, made at some time between 10 and 13 November 2017, had any adverse impact or effect on Ms Star’s employment with WorkPac. It further submitted that the applicant’s closing submissions sought to “graft” the consequences of subsequent events (namely the termination of Ms Star’s employment by WorkPac) which events were not themselves any necessary part of the decision, on to the decision to give it a character of “adverse action”. BMA submitted that, in the absence of evidence, the Court could not be satisfied that WorkPac’s decision between 10 and 13 November 2017 itself amounted to adverse action in any of the senses alleged.
85 The definition of adverse action in s 342(1) Item 1 of the Fair Work Act relevantly provides:
the employer:
(a) dismisses the employee; or
(b) injures the employee in his or her employment; or
(c) alters the position of the employee to the employee's prejudice; or
(d) discriminates between the employee and other employees of the employer.
86 As the respondent correctly submitted, there is no direct evidence before the Court that the decision of WorkPac that Ms Star no longer be deployed to the Mine – which the applicant contends BMA advised, encouraged or incited – had the effect of injuring Ms Star’s employment or altered her position to her prejudice.
87 However although no evidence of WorkPac was admitted in the proceedings, Ms Star gave evidence that on 13 November 2017 she received a telephone call from “Nicole” of WorkPac, and the following exchange took place:
Nicole: Your services are no longer required by BMA. You are being demobilised.
Me: Why?
Nicole: I don’t know why. The dismissal is not related to your performance. I will email you.
88 “Discriminate” is relevantly defined by the Macquarie Dictionary as:
–verb (i) 1. to make a distinction, as in favour of or against a person or thing: to discriminate against a minority.
2. to note or observe a difference; distinguish accurately: to discriminate between things.
89 I am satisfied that on and from 10 November 2017 WorkPac declined to offer Ms Star as a worker at the Mine, and that this was because of a communication from BMA to WorkPac. Ms Star was clearly singled out, to be excluded from entry on to the Mine site. It is difficult to characterise the relevant action of WorkPac in relation to Ms Star as anything other than discrimination by WorkPac between Ms Star and other employees of WorkPac.
90 The key question however is whether Ms Star was excluded from the Mine because of reasons which contravened the Fair Work Act.
(6) DID THE RESPONDENT TAKE ADVERSE ACTION AGAINST MS STAR FOR A REASON PROHIBITED BY THE FAIR WORK ACT, NAMELY EXERCISING A WORKPLACE RIGHT? (ISSUES 13, 14 AND 15)
91 Section 340 of the Fair Work Act relevantly provides that:
(1) A person must not take adverse action against another person:
(a) because the other person:
(i) has a workplace right; or
(ii) has, or has not, exercised a workplace right…
92 I have found that adverse action was taken against Ms Star by BMA, and that WorkPac was advised or encouraged or incited by BMA to take action against Ms Star within the meaning of s 362 (1)(b) of the Fair Work Act. I have also found that Ms Star had workplace rights, referable to refusing to undertake a task she believed placed her in immediate personal danger, poor illumination of the ramp at the Mine in the night, and to taking a drug test. The issue now for consideration is whether that adverse action was taken by BMA in this case because Ms Star exercised any of those workplace rights.
93 Recently in Wong v National Australia Bank Limited [2022] FCAFC 155 the Full Court of this Court summarised relevant principles in respect to identifying the reason for action by a decision-maker in this context:
18. As French CJ and Crennan J said in Board of Bendigo Regional Institute of Technical and Further Education v Barclay [No 1] [2012] HCA 32; (2012) 248 CLR 500, the question of whether adverse action was taken for a prohibited reason is one of fact to be answered in light of all of the facts and circumstances established in the proceeding (at [45]). The effect of s 360 of the FW Act is that an employer contravenes s 340 if the prohibited reason is a “substantial and operative” reason for the employer’s adverse action: Barclay at [104] (Gummow and Hayne JJ there citing Mason J in General Motors-Holden’s Pty Ltd v Bowling (1976) 51 ALJR 235).
19. In Barclay, an employee exercised a workplace right by virtue of his being an officer of an industrial association and by reason of his engagement in industrial activity. The employee alleged that his employment was terminated because of his exercise of those rights. The trial judge accepted the direct testimony of a single decision-maker who had acted on behalf of the corporate employer and, on the basis of that evidence, concluded that the employer had not contravened s 346 of the FW Act (then in equivalent terms to s 340). The Full Court allowed the employee’s appeal. The employer appealed to the High Court.
20. French CJ and Crennan J observed:
44. There is no warrant to be derived from the text of the relevant provisions of the Fair Work Act for treating the statutory expression ‘because’ in s 346, or the statutory presumption in s 361, as requiring only an objective inquiry into a defendant employer’s reason, including any unconscious reason, for taking adverse action. The imposition of the statutory presumption in s 361, and the correlative onus on employers, naturally and ordinarily mean that direct evidence of a decision-maker as to state of mind, intent or purpose will bear upon the question of why adverse action was taken, although the central question remains ‘why was the adverse action taken’?
45. ... Generally, it will be extremely difficult to displace the statutory presumption in s 361 if no direct testimony is given by the decision-maker acting on behalf of the employer. Direct evidence of the reason why a decision-maker took adverse action, which may include positive evidence that the action was not taken for a prohibited reason, may be unreliable because of other contradictory evidence given by the decision-maker or because other objective facts are proven which contradict the decision-maker’s evidence. However, direct testimony from the decision-maker which is accepted as reliable is capable of discharging the burden upon an employer even though an employee may be an officer or member of an industrial association and engage in industrial activity.
(footnotes omitted)
21. To similar effect, Gummow and Hayne JJ said (at [127]):
In determining an application under s 346 the Federal Court was to assess whether the engagement of an employee in an industrial activity was a ‘substantial and operative factor’ as to constitute a ‘reason’, potentially amongst many reasons, for adverse action to be taken against that employee. In assessing the evidence led to discharge the onus upon the employer under s 361(1), the reliability and weight of such evidence was to be balanced against evidence adduced by the employee and the overall facts and circumstances of each case; but it was the reasons of the decision-maker at the time the adverse action was taken which was the focus of the inquiry.
94 As the High Court noted in Board of Bendigo Regional Institute of Technical and Further Education v Barclay [No 1] [2012] HCA 32 [44]–[45] (Barclay), evidence of the decision-maker is key. I now turn to evidence relating to BMA’s decision to exclude Ms Star from the Mine. In the pleadings, it was common ground that the decision-maker in this case was Mr Gee. In my view the decision-maker was plainly Mr Gee, notwithstanding doubt case by the applicant at the end of the proceedings because Mr Gee was employed by BHP rather than BMA.
Evidence of witnesses for the respondent
Mr Brent Gee
95 As I have already noted, at relevant times Mr Gee was the Manager Production Coal at the Mine. Mr Gee gave evidence in various affidavits, as well as under cross-examination at the hearing. In particular I note the following evidence of Mr Gee in his affidavit of 25 November 2020 in which he gave direct evidence concerning his decision that Ms Star be excluded from the Mine:
7. BMA demands that labour hire personnel provided by a labour hire agency meet BMA's expectations relating to, amongst other matters, performance, behaviour, and conduct. We regard it as BMA's prerogative to refuse to accept at its sites labour hire personnel who do not meet those expectations, and in light of the significant disruption unsatisfactory performance, behaviour, and/or conduct can cause to BMA's operations, BMA has historically afforded little tolerance to labour hire personnel who fail to meet its standards. Indeed, the very nature of the relevant contracts for service enable BMA to both adopt and enforce these expectations in an exacting manner, as labour hire personnel who fail to meet BMA's expectations can, as a general rule, be easily "swapped out" (or substituted) for alternative labour hire personnel at a limited cost to BMA. BMA does not consider that it owes the same responsibilities to labour hire personnel in relation to coaching, development, discipline, and performance management that it otherwise adopts in relation to its own employees.
8. Further, BMA's practice was (and continues to be) not to provide labour hire agencies with its reason(s) for removing labour hire personnel from site and/or requesting a replacement for particular labour hire personnel. Again, the ability to communicate this request without having to provide or justify its reasons remains BMA's prerogative as a result of the nature of the service contract pursuant to which labour hire personnel are supplied.
Issues with Ms Star’s behaviour
9. One of my goals at the time was to build a stronger team culture and team mind set among all mining workers at the Mine, whether directly employed or engaged through labour hire agencies. I expected all workers to align and "get on board" with the direction and change agendas that BMA had in place and was pursuing, and for all workers to be proactive, positive and supportive of those goals as part of the "one team".
10. As part of my role at the Mine, I regularly attended team meetings and pre-start meetings for the various production crews working at the Mine. One of those production crews was the D Crew, which is the crew Ms Star was working in at relevant times in 2017. The Supervisor for D Crew was Mr Rod Maunder.
11. During my regular attendance at D Crew team meetings and pre-start meetings, I observed Ms Star's behaviour and interactions in those meetings. Based on my observations over a period of time, I formed the view that Ms Star was not acting in a way that was consistent with the culture BMA was working to build at the Mine, as noted in paragraph 9 above.
12. It is hard now to put into words that view or perception. However, I found Ms Star would voice what were often negative or critical views and opinions about various matters at inappropriate times and in a negative and disruptive manner, rather than using the available supervisor or workplace processes for raising such matters. I do not think she placed a lot of trust in the people around her or BMA for that matter and was sceptical of, and negative towards, BMA.
13. It was my view that Ms Star had a negative attitude generally and was resistant to change and improving team performance. It was also my view that Ms Star was having a negative impact on other members of the D Crew, as her attitude and behaviour had the potential to be mirrored (and to some extent was mirrored) by other workers.
Discussion with Mr Maunder
14. As a result of my observations, on or around Tuesday, 7 November 2017, I spoke with Ms Star's supervisor, Mr Maunder, about Ms Star. This discussion took place in a small meeting room attached to the open plan office and was casual in nature as opposed to anything pre-planned. My intention in having a quick discussion with Mr Maunder was to determine if he had observed the same or similar behaviours and attitude that I had, in order to confirm whether this was Ms Star's regular behaviour/attitude, whether there were some reasons or explanations for it that he was aware of or whether my perceptions were completely off the mark.
15. During this discussion, I asked Mr Maunder if he had any concerns about Ms Star. In response to this question, Mr Maunder said words to the effect that Ms Star "could be a bit of a bitch at times". Although I cannot now specifically recall what exactly he said after that, Mr Maunder did make it known that he himself had some negative perceptions of Ms Star's attitude and that he might have acted earlier to deal with Ms Star's attitude and behaviour and her future at the Mine, except that he felt conflicted and unable to take such action because of a previous personal relationship he had developed with Ms Star's partner (who also worked at the Mine) and through him, Ms Star herself. I ended the discussion with Mr Maunder with words to the effect "I'll take care of if', or something to that effect.
16. This discussion confirmed the view I had formed that Ms Star was not a good cultural fit at the Mine, given the matters described above. Given that she was engaged among many other workers through WorkPac, I considered it a relatively straightforward decision to ask that WorkPac no longer supply Ms Star to the Mine as she could simply be replaced with another mineworker from WorkPac instead. For these reasons, I made the decision on or about 7 November 2017 that BMA would no longer require Ms Star to perform work at Mine after the end of her current swing on 10 November 2017. I explain when and why I executed that decision in paragraphs 5-6 of my First Affidavit.
96 Mr Gee gave evidence that, at the time he made the decision that Ms Star should be excluded from the Mine, he did not know of the events of the evening of 9 November 2017 and the early morning of 10 November 2017 involving Ms Star on Ramp 14:
18. As stated in paragraphs 8-10 of my First Affidavit, I did not at any time on 10 November 2017 know of the occurrence (or otherwise) of any of these activities or actions by Ms Star on that shift. I had no idea of any incident involving Ms Star's refusal to dump a load of rejects, inadequate lighting or anything to that effect. Further, I had no idea that Ms Star had been randomly selected to participate in a mid-shift drug test early on 10 November 2017 or that she had in fact participated in that drug test that morning. I had not spoken to Mr Maunder or anyone else about either of those matters, before sending the email to the internal BMA resourcing team at 12.05pm on 10 November 2017.
19. At about 6.48am on Friday, 10 November 2017, I received in accordance with usual practice, a report about the operations on the nightshift which had just finished (at 6.45am that morning). That report said nothing about any of these incidents either.
20. Part of that report was a "Personnel Management Sheet" for the D Crew, which set out start and finish times for each mine worker on that crew and their crib breaks. This report showed that a number of workers had exceeded their crib breaks on the shift. One of these was Ms Star who had exceeded her second allocated crib time.
21. Workers exceeding crib times was a relatively regular occurrence at the Mine and one which as Production Superintendent, it was part of my role to avoid/reduce, due to its capacity to impact production. When I became aware of excess crib times, I would usually ask the Supervisor to follow up with the worker in question as to why it had occurred and to reinforce the need to ensure that crib times were not exceeded.
22. I followed this procedure on 10 November 2017. I cut and pasted certain information from the report and emailed it to Mr Maunder and Ms Kelly Ash (Step up Production Supervisor) at 7.46am on 10 November 2017, asking that they take steps to address the situation with the workers concerned. By this time, that shift (and indeed, swing) for the D Crew had finished and those workers would have already left the Mine site.
23. I did not at that time identify in my own mind that it was odd that I had specifically identified Ms Star in my email (to be spoken to), in circumstances where I had already decided to ask WorkPac to not return her to the Mine. I cannot now reconcile or explain why that did not occur to me at the time. I am absolutely certain however that I had already made that decision on 7 November 2017. I am also absolutely certain that at the time of sending the email to the BMA resourcing team later that day, I did not know why Ms Star had exceeded her second crib break time on that shift.
24. As stated in paragraph 11 of my First Affidavit (and as reinforced now), I categorically deny that any part of my reasons for deciding that BMA would no longer require Ms Star to perform work at the Mine after 10 November 2017, were either of the reasons identified in paragraph 17 above.
97 In relation to Ms Star returning to the Mine after Fair Work Commission decision, Mr Gee’s evidence in that same affidavit was as follows:
30. I recall having a discussion with Caitlyn Ryan, Principal Employee Relations, about the Order. Ms Ryan asked me, with words to the effect, whether I wanted Ms Star to be returned back to the Mine. Although I cannot now recall where I got this understanding from, my understanding at the time was BMA had no legal obligation to allow WorkPac to return Ms Star to the Mine such that it was very much an optional thing for BMA (and mine management in particular, namely myself).
31. I told Ms Ryan that, for the reasons outlined at paragraphs 9-16 above, I maintained my view that I did not want Ms Star at the Mine. Nothing about the cultural fit issues and Ms Star's attitude had resolved or gone away.
Mr Roderick Maunder
98 Evidence supporting that of Mr Gee was given by Mr Roderick Maunder, who from July 2016 until August 2018 was the Supervisor of the D Crew in the Production Team at the Mine, which included Ms Star. In his affidavit dated 3 November 2020 Mr Maunder deposed relevantly as follows:
5. In my role as Supervisor, I directly observed Ms Star's performance, behaviour and attitude and over time, developed some concerns about them, especially her behaviour and attitude. It was my opinion that Ms Star was not a "team player", in that she:
(a) had difficulty working cooperatively as part of a team;
(b) lacked confidence or trust in the team's ability to complete their work to a standard or level that she regarded as satisfactory;
(c) consistently used ineffective communication styles, including being dogmatic and abrupt in the way she communicated with others, including those whom she was seeking help or assistance from (like fitters); and
(d) was argumentative and often raised her voice with team members.
6. Based on my observations of these behavioural and attitudinal issues with Ms Star (some of which I witnessed in pre-start meetings), I had formed a view that that she was not a particularly good fit for the team at the Mine and as a labour hire worker, was someone that probably ought to have been removed from the Mine. Indeed, if it was not for a personal friendship I had developed with Ms Star's partner (who also worked at the Mine), and indirectly through him a friendship with Ms Star herself, I would have taken steps to have Ms Star removed from the Mine earlier than the events of November 2017.
7. I had not however taken any of those steps because of my conflicted position with Ms Star's partner. I did not want to deal with the inevitable phone calls I would have received from him about why I had taken action against Ms Star and potential allegations of betrayal and conflicts of interest, etc.
8. On or about Tuesday, 7 November 2017, I recall having a discussion with Mr Brent Gee, who was, at the time the Manager of Production Coal at the Mine, about Ms Star. I recall the D Crew in that particular roster cycle, which roster cycle involved two days and then two nights. The last night shift of the cycle was over 9-1 0 November, which was a Thursday and Friday. This placed the last day shift on Tuesday, 7 November 2017.
9. This discussion took place in a small meeting room attached to the open plan office. It was not pre-booked or pre-planned and was a short discussion.
10. During this discussion, Mr Gee asked me generally how I got on with Ms Star and whether I had any issues or concerns about her performance or behaviour on my crew. I said to Mr Gee in response, words to the effect that she "could be a bit of a bitch". I am reasonably confident that I would have expanded on that to some extent by reference to the matters identified in paragraph 5 above, but do not now remember exactly what I said.
11. I do recall telling Mr Gee words to the effect that I felt that I was in a position of conflict because at the time, I was friendly with Ms Star's partner and had spent some time with Ms Star and her partner outside of work on a social basis. Without being able to recall my specific language, I informed Mr Gee that I felt that this perceived conflict was preventing me from taking any corrective measures in respect of Ms Star.
12. Mr Gee ended the discussion by saying words to the effect that he would take care of it, or that I would not have to worry about it after this weekend, or something to that effect. Without him expressly saying anything to me about this, I assumed/guessed that Mr Gee was going to have Ms Star removed from the Mine. I remember thinking at the time that I was expecting a phone call from Ms Star's partner in the not too distant future.
Evidence of witnesses for the applicant
99 Evidence in the proceeding was given for the applicant by the following witnesses:
Ms Kim Star (affidavit dated 5 October 2018, 20 May 2020)
Mr Peter Thomas (affidavit dated 23 November 2020)
Mr Brett Hazeldine (affidavits dated 16 October 2018, 7 April 2020, 20 May 2020)
Mr Carl Schmidt (affidavit dated 20 November 2020)
Mr Joseph Kennedy (affidavit dated 8 December 2020)
Ms Kim Star
100 Relevantly in her affidavit of 20 May 2020, Ms Star deposed:
5. Mr Maunder was the supervisor of my crew from around July 2016 to when I was excluded from the Mine in November 2017.
6. At no time during that period did Mr Maunder raise any concern with me, whether formally or informally, about:
(a) me not being a “team player”;
(b) me lacking confidence or trust in the other members of the team;
(c) me using “ineffective communication styles”, being abrupt, dogmatic, argumentative or raising my voice; or
(d) anything similar.
7. In response to paragraph 5 of Mr Maunder’s affidavit, I deny all of those allegations. I considered that, at all times during my employment at the Mine, I worked well with the other members of my team and communicated effectively with them.
8. At no time did any other employee raise any concern with my work ethic, communication style or anything similar during my time at the Mine.
101 Ms Star further denied that she had been argumentative or disrespectful in pre-start meetings, or that she had behavioural or attitudinal issues which could have justified her removal from the Mine. Ms Star further stated her view that her partner Mr Carl Schmidt did not have a personal friendship with Mr Maunder.
102 Ms Star gave evidence that on 6 November 2017 she was informed by Mr Maunder that she had been appointed as a Trainer Assessor at the Mine.
103 Ms Star also responded to evidence of Mr Gee, in particular as follows:
15. Mr Gee attended one of our prestart meetings in or around August/September 2017. During that meeting there was a discussion about Daniel Springer, who had died in an accident at the Mine on 5 August 2017. Mr Gee was saying that employees should have been a lot more aware and sensitive to what had happened. I said words to the effect of:
“If there were better processes, and a supervisor at the gate telling people that there had been an accident, the workers would have been more understanding.”
16. I also asked Mr Gee during the meeting about what long-term support was being provided to Mr Springer’s wife.
17. Having regard to the passage of time since the events in 2017, I cannot recall Mr Gee attending another pre-start meeting from the date of the above meeting in August/September 2017 to the date I was excluded from the Mine in November 2017.
18. I refer to paragraph 10 of Mr Gee’s affidavit. I repeat and rely on paragraphs 14 to 17 above regarding his attendances at pre-start meetings. I do not agree that Mr Gee “regularly attended” our pre-start and team meetings.
Mr Peter Thomas
104 Mr Thomas gave evidence that he had worked at the Mine from approximately January 2016 until March 2018, including two years when he worked on the same crew as Ms Star. Mr Thomas disagreed with the views of Mr Gee and Mr Maunder in relation to Ms Star’s conduct. In particular Mr Thomas deposed in his affidavit dated 20 May 2020 as follows:
13. Kim and I worked together regularly. Kim and I would communicate with each other on a daily basis, when our crib times crossed and we were in the crib room at the same time, or if we needed to talk over the radios. In my experience she was easy to communicate with.
14. Kim was more of team player than some of the other people on the D Crew.
15. Kim Star is a person who cares about others. She knows what the right thing is, and she won’t jeopardise anyone’s safety by taking a shortcut. This is especially the case if there is the potential for someone to get hurt.
16. Kim’s work ethic is second to none and I would choose to work with Kim before I would work with a lot of other people in this sector.
17. I rate Kim’s skills as an operator, and I do not recall her having any major incidences. Kim could operate a water truck and they wouldn’t let me do that even though I had 35 years’ experience in the mining industry at the time. Kim was never aggressive and was one of the least disruptive members on the D Crew.
Mr Brett Hazeldine
105 Evidence was given by Mr Brett Hazeldine, an open-cut examiner at the Mine who worked in a safety supervisor role. His evidence concerning Ms Star’s character is summarised in his final affidavit dated 20 May 2020 in which he responded to the evidence of Mr Maunder and Mr Gee, as follows:
Matters raised by Roderick Maunder’s Affidavit
4. In response to paragraph [5] of Mr Maunders’ affidavit, I repeat and rely on paragraph 10 of my affidavit dated 16 October 2018. I regularly worked with Ms Star, as I followed a designated crew, and my designated crew at the time was the D Crew. She always communicated any safety concerns she had effectively and appropriately. I never found Kim to be argumentative. Based on my observations she worked cooperatively and professionally with me.
5. My role at the mine was a statutory safety role, as an open cut examiner. From my experience with Ms Star, whenever she had a concern about safety, she would raise that concern through the proper processes. Ms Star would first go through her line leader, Mr Maunder, and then if she wasn’t satisfied with the line leader’s response, she would escalate the concern to me, or one of the other open cut examiners on the relevant shift.
6. I recall Ms Star possibly only raising one or two safety concerns directly with me, after going through her line manager. From my experience I found Ms Star approachable and genuine when she raised those safety concerns.
Matters raised by Brent Gee’s Affidavit
7. When any workers come to us as open cut examiners, it is because they are seeking clarification of the Safety and Health Management System, and aren’t getting the response that they need, in terms of their safety concern. All I could do, in that instance, is provide them with the right answer and explain to them what our expectations are. I did not witness Ms Star be disruptive, negative or refuse to use workplace processes for raising matters. To the contrary, Ms Star would always raise matters with me in accordance with our processes.
Mr Carl Schmidt
106 Mr Carl Schmidt, Ms Star’s partner, gave evidence including that he never witnessed anyone have or raise an issue with Ms Star (affidavit dated 19 May 2020). He also gave evidence that he had a good professional relationship with Mr Maunder, but had little engagement with him after Mr Maunder became a supervisor in 2014. Mr Schmidt also gave relatively detailed evidence concerning his conversations with Mr Maunder and Mr Gee after Ms Star was demobilised.
Mr Joseph Kennedy
107 Mr Kennedy was a Principal of Hall Payne Lawyers, the solicitors for the applicant. Mr Kennedy was not cross-examined in the proceeding.
Submissions concerning the respondent’s evidence
108 The applicant submitted that the evidence of Mr Maunder and Mr Gee was not sufficient to discharge the onus imposed on the respondent, and further that their evidence did not explain Ms Alexander’s reasons for providing the advice or encouragement to WorkPac.
Mr Gee
109 The applicant submitted that Mr Gee’s evidence was unreliable and ought not be accepted. In particular the applicant submitted:
Despite Mr Gee’s knowledge of the BHP Code of Conduct, and the desirability of reducing turnover in labour at the Mine, no steps were taken by him or anyone else to inform Ms Star of her alleged bad attitude or performance issues.
Although Mr Gee gave evidence that it was company practice not to speak with contractors about performance, he gave no credible explanation of why he had asked Mr Maunder to speak with Ms Star concerning her extended crib break.
No credible explanation was given by Mr Gee concerning why he would not tell Ms Star why she had been excluded from the Mine site. No positive explanation was given by Mr Gee as to how this refusal accorded with the BHP Code of Conduct.
The first and only time any explanation of Mr Gee’s reasons for excluding Ms Star was given was in his second affidavit, two and a half years after proceedings had been commenced.
The position of both the respondent and Mr Gee was that they would have the Court accept that Mr Gee had some nebulous concerns about Ms Star’s attitude and decided to exclude her from the Mine, despite four years of previous unblemished service, without ever raising his concerns with her, despite:
(a) the BHP Code of Conduct requiring him to act with fairness and to provide respect to Ms Star, which he admitted his version of events failed to do;
(b) the fact that ordinary decency and fairness required him to give her some opportunity to address the concerns;
(c) that it was in the best interests of the operator to reduce turnover at the Mine and for Ms Star to be given the opportunity to address her alleged attitude issues;
(d) on the morning of 10 November 2017, allegedly three days after he had secretly made the decision to exclude Ms Star from the Mine, Mr Gee typed out and sent an email requiring his supervisor to provide feedback to Ms Star and reset expectations (which was inconsistent with his other evidence);
(e) he refused to provide reasons when Ms Star’s partner enquired as to why Ms Star had been excluded from the Mine; and
(f) he refused to provide explanation of his reasons in his first affidavit in this proceeding, despite knowing that his reasons were the central issue in this case.
Mr Gee’s inability to explain the foregoing inconsistencies overwhelmingly suggests that his evidence about his reasons was a reconstruction by him of what occurred.
The limited contemporaneous documentary evidence and the absence of other documents evidencing any performance issues or concerns on the part of Mr Gee, undermined the respondent’s case.
Although Mr Gee denied that he was aware of the exercise of workplace rights by Ms Star:
(a) His evidence was overall unreliable;
(b) It was apparent from the evidence that there were a variety of meetings which were ordinarily held between supervisors both at the shift changeover and on the morning of the day shift, in which an incident of this kind would likely have been relayed to Mr Gee;
(c) Despite some equivocation in his first affidavit about when he learned of the exercise of the workplace rights (which was entirely unexceptional given the passage of time), when he came to give his oral evidence at the hearing Mr Gee was adamant that he did not know. This suggests that Mr Gee was aware of the importance of this evidence, and reconstructed it;
(d) The evidence of Mr Gee that, without prompting from anyone, he had voluntarily sought out the entry exit records at the Mine to ascertain whether there was any overlap between his attendance at the Mine on the morning of 10 November 2017 and Mr Maunder’s attendance, suggests that his actual recollection of whether he had spoken with supervisors was poor.
110 BMA submitted that Mr Gee’s evidence was credible and reliable. In particular, it submitted, in summary:
There was no reason for Mr Gee to have made a record or note of a mental decision on 7 November 2017 when he intended to action it within days;
It was reasonable for Mr Gee to have waited until the end of Ms Star’s roster before he actioned his decision that she be demobilised;
Mr Gee’s evidence concerning his explanation for sending the email to Mr Maunder was credible;
Mr Gee’s evidence concerning his lack of communication to Ms Star for her demobilisation was reasonable. The respondent submitted:
Why would Mr Gee tell an employee of a contractor, who had already been demobilised from the Mine, why she was demobilised? No occasion had arisen to tell her (one way or another) in any event. Further, why would Mr Gee share such personal information with another worker either, especially her partner of 22 years who might not take too kindly to the suggestion that his partner had attitude and behavioural issues? Mr Gee's approach to Ms Star was no different to his approach with other employees of contractors.
Mr Gee’s explanation of the contents of his affidavit was credible – namely that he did not select what did and did not go into his affidavit, however everything that went in was accurate. In any event, Mr Gee’s first affidavit was prepared quickly in response to an application for an interlocutory injunction, where the applicant only needed an arguable case as to “reason”;
It was not correct to say that the first account of his reasons appeared in Mr Gee’s second affidavit: the reasons were first alleged in BMA’s defence filed on 7 March 2019 which was the first substantive occasion upon which Mr Gee was called upon to explain his reasons;
The Court should accept Mr Gee’s account of the unwritten policy of BMA in not giving reasons for exclusion of workers who are contractors. While to some extent capable of being characterised as being in conflict with generalised and broad statements in the BHP Code of Conduct about treating all workers with fairness and respect, this says very little about the credibility of Mr Gee’s account of the so-called “unwritten policy” which accords entirely with business common sense; and
Mr Gee’s evidence was frank, open, logical and completely honest.
Mr Maunder
111 In relation to evidence of Mr Maunder, the applicant submitted that his evidence was inherently unreliable, and that his unreliability as a witness emerged during his cross-examination. In particular the applicant submitted:
Mr Maunder tried to give evidence of alleged discussions that he had had with Ms Star concerning her performance, however those discussions were never documented;
Mr Maunder never offered training to Ms Star to address his alleged performance concerns;
Mr Maunder was not able to sensibly explain why he had promoted Ms Star to the position of trainer assessor if he was concerned that there were significant issues with her attitude;
Mr Maunder’s evidence during cross-examination that his description of Ms Star as “a bit of a bitch” was in fact Ms Star’s own opinion about herself was not credible;
There was plainly an element of reconstruction to Mr Maunder’s evidence; and
Mr Maunder admitted that he lied to people when it suited him, including Mr Schmidt about what Mr Maunder knew about Ms Star’s termination.
112 In reply, the respondent submitted that:
There were several reasons why Mr Maunder did not document any of his conversations with Ms Star about her performance, namely:
• Ms Star was not an employee of BMA or BHP; and
• Mr Maunder felt compromised in his management of Ms Star.
Nothing turned on the fact that Mr Maunder’s issues with Ms Star’s performance were not rendered in the pleadings;
There is no “one size fits all” approach to management, and the evidence provided by Mr Maunder should be treated as completely logical, rational and credible;
Mr Maunder was trying to be honest;
Despite the fact that Mr Maunder, upon cross examination, revealed that he did not hold the view that Ms Star “could be a bit of a bitch” this should not bear on his credibility, as this description of Ms Star aligned with Mr Gee’s perceptions; and
There is no link between Mr Maunder protecting the feeling of a “mate” and his ability to give truthful evidence under oath.
Consideration
113 As I have already observed, adverse action was taken by the respondent against Ms Star within the meaning of the Fair Work Act. The original exclusion of Ms Star from the Mine on 10 November 2017 occurred within a short time period of the exercise by Ms Star of workplace rights. The case of the applicant is that the adverse action occurred because of the exercise by Ms Star of the workplace rights. Section 361 of the Fair Work Act squarely places the onus on BMA to prove that which lies peculiarly within its knowledge, namely that the exercise by Ms Star of workplace rights was not a substantial and operative factor in the reason for the adverse action it took against Ms Star, both the original exclusion from the Mine and the subsequent refusal to allow her to return.
114 That onus is to be discharged according to the balance of probabilities. In noting that this is the standard to be applied, I also note that the proximity in time between the exercise of workplace rights by Ms Star and the taking of adverse action by BMA is not in itself conclusive. As Bromberg J observed in Construction Forestry Mining and Energy Union v Endeavour Coal Pty Ltd [2015] FCAFC 76 at [165]:
….A nexus between adverse action and protected activity may be instructive as to whether a nexus between reason and protected activity existed. But because adverse action may be happenstance or coincidental with the existence of the protected activity, the fact of that connection can never be determinative. The focus is upon reason and its connection to the protected activity. That is, in my view, the fundamental point for which Barclay stands. The questions that then arise are these: why was the adverse action taken? By reference to the actual reasons of the decision-maker, was it because of or including because of the protected activity?
115 The respondent has denied that the decision to exclude Ms Star was referable to her exercise of workplace rights, or for any reason prohibited by the Fair Work Act. The key evidence before me is the evidence of Mr Gee as the decision-maker, with Mr Maunder’s evidence of importance as informing evidence of Mr Gee’s reasons for his decision.
116 It is also appropriate for me to have regard to evidence of Ms Star, Mr Thomas, Mr Hazeldine and Mr Schmidt to the extent that it supports findings contrary to those urged by the respondent. In summary, the evidence of the applicant’s witnesses was that Ms Star was a team player with a good work ethic, and skills appropriate to her job. Their evidence strongly refuted the contention that Ms Star was disruptive in the workplace or not a good cultural fit to the workers on the Mine site. I consider the evidence of the applicant’s witnesses to be credible. However in so finding, I note that the evidence of these witnesses was relevant, but not as critical to identifying the reasons for the decision of Mr Gee.
117 Taking into consideration the evidence of the witnesses (both oral and written), the submissions of the parties concerning that evidence, and relevant legal principles, I have concluded that the respondent has not discharged its onus under s 361 of the Fair Work Act that the adverse action taken by the respondent was not for a reason or included a reason prohibited by the Fair Work Act, namely the exercise of one or more workplace rights by Ms Star. I have formed this view for the following reasons.
118 First, BMA submitted at the hearing that it was important to recognise that the Court need not make finding about the stated reasons for the adverse action taken by BMA. Counsel continued:
That is, you may – and, as I said, we think you won’t get anywhere near this – but you may reach a point where you say, “I’m not 100 per cent confident, or confident on the necessary standard, that the stated reasons were the reasons taken.” But provided you are satisfied that the proscribed reasons were not part of the reasons, the onus is still discharged.
HER HONOUR: So in other words, what you’re saying is I could find that I have no idea why Ms Star lost her – why BM Alliance did not want her back on the site, but I’m – but you have discharged the onus of establishing that it was not for a proscribed reason.
MR FOLLETT: Precisely.
(Transcript p 83 ll 31-42)
119 In this respect BMA relied on observations of Bromberg J in Newton v Australian Postal Corporation (No 2) [2019] FCA 2192; (2019) 292 IR 396 (Newton) at [93]-[96], [157], [165] and [200]-[204]. In particular I note the following comments of his Honour in that case:
155. It is instructive, I think, to notice that there is no evidence of Metcher exposing Project Dove in Canberra on 8 February 2016 or any time soon thereafter or possibly at all. Indeed, at about 11am on Monday 8 February 2016, Metcher sent an email to Fahour referring to their discussions of the previous Friday. The email was civil and polite. It indicated that Metcher was now receptive to the conduct of the Leanne White Review and proposed the CEPU’s nominee for the team of persons who were to conduct that review. The email made no mention of Project Dove. It seems likely that by the time this email was sent, Metcher had been convinced to accept that which he had rejected during the conversation with Fahour on the previous Friday, that APC would not pursue Project Dove. There is only one event of relevance in the evidence before me that occurred between the conversation on 5 February 2016 and Metcher’s communication on 8 February 2016. That event is that Michael Newton was removed from his position. There is no direct evidence of how the removal of Michael Newton from his position was communicated to Metcher. Fahour deposed that he did not communicate that to Metcher but, although he said he was speculating, he said he assumed that Walsh would have done so.
156. I do not positively find that Fahour removed Michael Newton from his position because he sought to convince Metcher that Project Dove was truly dead and buried. I need not make that finding. However, that Fahour removed Michael Newton for that reason is an inference not less supportable than the inference that Michael Newton was removed from his position because Metcher demanded that Fahour do so. In other words, each of those reasons are possible logical explanations for why Michael Newton was removed from his position. If the existence of only one logical explanation for Fahour’s conduct had been sufficient to allow the inference contended for by Michael Newton to be drawn, the inference cannot be drawn because there are other logical explanations which can explain Fahour’s conduct.
157. I have arrived at that conclusion mindful of the fact that, although I raised the possible explanation I have just set out with Michael Newton’s Counsel, it had not been raised or relied upon by any of the respondents and not put to Fahour. None of the respondents had an incentive to put that case because each sought to convince the Court that Fahour was a reliable witness whose explanation for removing Michael Newton should be accepted. Fahour deposed that Michael Newton was removed because of Fahour’s concern for Michael Newton’s wellbeing and in order to protect him from exposure to Metcher. Michael Newton contended that I should not accept Fahour’s explanation and for the reasons that follow I do not. However, my non‑acceptance of that evidence (which has contributed to my concern about the reliability of Fahour’s evidence and the general impression I gained of him), serves to support the existence as a logical possibility of the undisclosed explanation I have raised, and does so despite the unfortunate position that the explanation was not explored with Fahour.
120 Importantly, Bromberg J continued:
165. That all of that occurred out of a concern by Fahour for Michael Newton’s welfare is neither plausible nor believable. All of those findings serve to demonstrate that there was another reason, a reason other than that proffered by Fahour, for Fahour’s deep-seated objection to Michael Newton occupying a position which involved Michael Newton with workers’ compensation or injury management at APC. The difficulty for Michael Newton’s case is that the available explanations which may reveal that other reason, are not confined to the “logical explanation” for which Michael Newton contended.
121 At [203] of Newton his Honour concluded that he was not satisfied, on the facts of that case, that the reason for the applicant being removed from his position was the reason alleged in the pleadings, and rejected the claim that the adverse action in that case constituted a contravention of s 340 of the Fair Work Act.
122 The observations of Bromberg J were in the circumstances of the facts before his Honour in Newton. In my view the reliance by the respondent in the case before me on the fact-specific findings of his Honour in Newton, is misplaced. The respondent in the present case has not suggested that there is any reason for the exclusion of Ms Star from the Mine other than that set out in the respondent’s Defence filed on 7 March 2019, namely Mr Gee’s belief that Ms Star did not fit well with the overall culture at the Mine. This is the respondent’s answer to the case brought against it by the applicant. It is also consistent with evidence given by Mr Gee, whom the respondent admitted was the decision-maker.
123 The words of s 361 of the Fair Work Act are clear. They have been the subject of extensive and authoritative determination by the High Court, particularly in the Barclay case. In an application claiming contravention of Part 3.1 of the Act, if it is alleged that a person took action for a particular reason or with a particular intent, and taking that action for that reason or with that intent would constitute a contravention of that Part, it is presumed that the action was, or was being, taken for that action or with that intent, unless the person proves otherwise; Barclay at [45].
124 In light of this presumption, there is no room for the Court to dismiss an application claiming contravention of Part 3.1 of the Fair Work Act because the Court speculates that there may be a secret, “real” reason why the decision-maker made the decision which resulted in adverse action against a worker, but which reason the decision-maker has not explained. The onus lies on the employer to displace the presumption in s 361. If the employer does not do so, through evidence of its reasons, the presumption is that the action was taken for a reason or with the intent that would constitute a contravention of Part 3.1. It follows that an exercise in speculation by me as to whether there was an alternative hidden agenda to Mr Gee’s decision, such that there was an unknown “real” reason for his decision (but which was not one contravening the Fair Work Act), would not only be misplaced, it would not accord with the task of the Court when considering the present application, the provisions of the Fair Work Act, and the evidence before it.
125 Second, while I consider that in giving his evidence Mr Gee endeavoured to be honest, I agree with the applicant that much of Mr Gee’s evidence could only be described as reconstruction, rather than his genuine recollection of events and reasons for his decisions, and was unreliable. Holes in Mr Gee’s evidence, which seriously undermined the respondent’s case, and for which no credible or logical explanation was given by him (either in his affidavits or during cross-examination) included:
Why, at a time when Mr Gee was her ultimate supervisor at the Mine, Ms Star was considered sufficiently a “team player” by others at the Mine (apparently including Mr Maunder because “she had already had the skill”: transcript p 158 ll 17-18) to be promoted to the position of trainer assessor at the Mine in 2017, but yet four days later was excluded from the Mine by decision of Mr Gee as not being a team player;
Why, as emerged from evidence of witnesses for the applicant, Ms Star had worked for four years on the Mine Site without apparent trouble or complaint if she actually was, or was even considered by BMA to be, disruptive and not a “team player”;
Why, if labour turnover at the Mine was undesirable, Mr Gee considered it necessary to exclude Ms Star who the evidence showed was experienced and good at her job, when no credible effects of her alleged “disruptiveness” were identified;
Why, if Mr Gee had supervision of approximately 180 workers at the Mine, he was able to single out Ms Star as being disruptive and other than a “team player”, relying only upon comments Ms Star apparently made at unspecified pre-start crew meeting(s);
Why, if Mr Gee had made a decision on 6 or 7 November 2017 that Ms Star was to be excluded from the Mine, he did not inform BMA Labour Hire of his decision despite his admission during cross-examination that this was his practice, or, as he also accepted during cross-examination, he did not inform BMA Labour Hire of his decision and advise them not to tell WorkPac until Ms Star’s roster was completed; and
Why, if the BHP Code of Conduct required fairness and respect to all people including contractors, Mr Gee felt that this was an obligation no-one at BMA owed to Ms Star, or that the BHP Code of Conduct was somehow superseded in her case by an opaque, and unwritten, “company practice”.
126 Indeed, there is no reliable evidence before the Court that Mr Gee had any trouble with Ms Star prior to the events of 9-10 November 2017 when Ms Star exercised her workplace rights. Relevantly I note:
Mr Gee gave evidence that there was a constant demand for training new operators at the Mine, the “bottleneck” was always trainer assessors to make that happen requiring the appointment of more trainer assessors, and he “may have been aware” on 6 November 2017 of Ms Star’s appointment as a trainer assessor although he could not recall it (transcript p 213 ll 30-47). This evidence in my view is inherently illogical. Indeed it contradicts the fact that Ms Star was appointed as a trainer assessor at a time when Mr Gee had already been a senior manager at the Mine for six months;
Although Mr Gee had worked at the Mine for six months at the same time that Ms Star was there, he had “formed [an unfavourable] view of her” (transcript p 317 ll 32-36) notwithstanding her previous four years of unblemished performance at the Mine;
No substantive evidence was given to address the undesirability of unnecessary staff turnover insofar as it applied to Ms Star, an experienced worker at the Mine who had recently been promoted to trainer assessor, other than Mr Gee’s alleged belief that she was not a “cultural fit” at the Mine. Nor was any evidence adduced as to any steps taken to performance manage Ms Star given her alleged “disruptiveness”, other than unsubstantiated and undocumented evidence by Mr Maunder of his informal discussions with Ms Star;
Mr Gee gave evidence that Ms Star had “…caused disruption into pre-start crew meetings etcetera by offering, you know, negative comments, I guess. Criticism of the business and its processes. What I saw as, you know, intent to disparage, I guess, BMA” (transcript p 222 ll 8-11). However at its highest, Mr Gee said he “was attending these meetings from time to time” (transcript p 212 ll 42-44). He gave evidence that he did not attend pre-strip daily supervisors meetings (transcript p 185 ll 26-31). The respondent placed weight on evidence given by Ms Star, Mr Thomas and Mr Maunder that Mr Gee may have attended more than one pre-start meeting at the Mine, however in my view that evidence was little more than reconstruction on their part. Ultimately, the evidence before the Court that Mr Gee formed a view of Ms Star being disruptive and negative at meetings at the Mine is very weak, and ultimately not credible;
Mr Gee conceded that there was nothing to stop him informing BMA Labour Hire prior to the completion of Ms Star’s roster cycle that she was no longer required, if he had formed a view on 6 or 7 November 2017 that she should be excluded (transcript p 192 ll 41-46); and
Mr Gee gave evidence referable to the BHP Code of Conduct including “… A termination of an employee, no, it’s taken lightly….it does have an impact on the people as well” (transcript p 188 ll 1-7), and that notwithstanding that the BHP Code of Conduct required fairness, he understood that company practice was not to provide information or reasons in respect of employees of contractors (see transcript p 203-204). Mr Gee explained in relation to Ms Star and the application of the BHP Code of Conduct that “it is quite grey in this situation” (transcript p 212 ll 34-36). In my view however this evidence is inconsistent, bordering on illogical, and is suggestive of a reconstruction of events and Mr Gee’s alleged belief at the relevant time
127 In this context, I again consider the evidence of Ms Star, Mr Thomas, Mr Hazeldine and Mr Schmidt to be credible. In particular I consider Ms Star to be a credible witness, who gave her evidence in a calm manner and plainly could discuss her work at the Mine in an experienced and authoritative fashion.
128 Third, I consider there is a degree of sophistry in BMA’s proposition that the applicant’s submissions did not deal with the question of “why” including:
What possible reason or motive would Mr Gee have for removing Ms Star from the Mine (and keeping her removed) for exercising the rights she is said to have exercised?
129 The obvious answer to this question, which BMA bears the onus to negate, is that Mr Gee sought to remove Mr Star from the Mine and keep her removed precisely because she exercised the relevant workplace rights. Notwithstanding evidence of both Mr Gee and Mr Maunder during the proceedings that they supported Ms Star’s approach to avoiding dangerous conduct, and adhering to proper safety procedures, I do not consider credible their evidence concerning their views of Ms Star’s conduct prior to 10 November 2017, and in particular Mr Gee’s evidence concerning his reasons for the decision to exclude Ms Star from the Mine.
130 Fourth, I note the submission of the applicant that no evidence was given by the decision-maker, admitted by the respondent to be Mr Gee, until the proceedings were well advanced. The conduct by the respondent of its case, and forensic decisions concerning witnesses who give evidence and the contents of witness affidavits, are plainly matters for the respondent. However, as the High Court emphasised, the evidence of the decision-maker is critical to negate presumptions of adverse action which can otherwise be drawn in the absence of that evidence. The absence of any evidence of the decision-maker until well into the proceedings can only be described as puzzling. Mr Gee eventually did give affidavit evidence of his alleged reasons for the decision to exclude Ms Star from the Mine, however the fact that his final evidence of his reasons was not prepared until one and half years after relevant events must result in an increased likelihood of reconstruction of evidence, particularly in the absence of contemporaneous notes by him.
131 Finally, I consider that Mr Maunder’s evidence was unreliable. I take into consideration the difficulty witnesses may have in coping with cross-examination in the Courtroom environment, particularly involving events that had occurred several years earlier. However I formed the impression of Mr Maunder as a person who disliked confrontation, and would not wish to be seen to be in opposition to Mr Gee or to any views Mr Gee might have expressed concerning Ms Star at the relevant time. I consider that Mr Maunder’s evidence concerning Ms Star allegedly being “a bit of a bitch” was invented by him at that time to be agreeable to Mr Gee, particularly in light of what appears to have been Mr Gee’s clearly expressed views to Mr Maunder concerning Ms Star. Mr Maunder’s statement concerning Ms Star was inconsistent with his claimed friendship with Ms Star and Mr Schmidt, and was glaringly in conflict with his conduct – four days prior to Ms Star’s exclusion – in promoting Ms Star to a position which required her to be able to maintain good relationships with colleagues.
132 I consider that Mr Maunder’s evidence should be accorded no weight.
CONCLUSION
133 I am satisfied that Ms Star exercised workplace rights on 9-10 November 2017 under the CMSH Act and the Safe Loading SOP by refusing to dump the load at Ramp 14, and under the Fitness for Work Policy by participating in the drug and alcohol test. I am also satisfied that the respondent’s conduct in excluding Ms Star from the Mine, and continuing to exclude her, constituted adverse action and/or advising, encouraging or inciting WorkPac to take adverse action against Ms Star within the meaning of the Fair Work Act, and that the respondent’s reason for taking such action was that Ms Star had exercised workplace rights.
134 It follows that the application should be allowed. I will ask the parties to liaise and submit timetabling orders for a hearing in respect of compensation and pecuniary penalties.
I certify that the preceding one hundred and thirty-four (134) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Collier. |
