This is the paper I presented at the Workplace Bullying seminar being held in Sydney on Friday 17 September 2010 at the Hilton Sydney.

Download a copy my Statutory, Criminal and Employment Remedies for Bullying

Construction, Forestry, Mining and Energy Union v Cahill [2010] FCAFC 39 (18 May 2010)

The Construction Forestry Mining and Energy Union (CFMEU) and one of its officials, Mr Bob Mates have failed in their attempt to overturn the level of penalties imposed upon them by the trial judge in the Federal Court.  The Full Court of the Federal Court, by majority (Middleton and Gordon JJ with Moore J partly in dissent), have rejected the appeals and the trial judge’s level of  penalties stands.

The CFMEU and Mr Mates, had been charged under s 43 of the Building and Construction Industry Improvement Act 2005.  Section 43 creates an offence of organising or taking action, or threatening to organise or take action, in order to coerce a company to employ a person as an employee or contractor or, allocate them particular responsibilities[14]. The events occurred at a building site at Mount Street, Heidelberg in Victoria on the 15 February 2006, the 17 February 2006 and the 21 February 2006.  The Appellants’ argument was that the events on the 15 and 17 February 2006, should have been treated  not  as separate offences but, as one course of conduct.  Further, that the penalties imposed were argued to be  manifestly excessive.

In dissent, Justice Moore found that the events of the 15 and 17 February 2006, were not just similar, but were the same and, as a consequence should have been treated as one course of conduct.  The majority judgment, however, found that in having regard to the  criminal law principle of  ‘course of conduct’, such a principle is recognised in the proper exercise of the sentencing discretion.  They said,

“The principle recognised is that where there is an interrelationship between the legal and factual elements of two or more offences for which an offender has been charged, care must be taken to ensure that the offender is not punished twice for what is essentially the same criminality.”  [39]

This principle it was said, was recently summarised in an industrial context in CFMEU ats Williams (2009) 262 ALR 417 at [14] – [26].  The majority found that the trial judge’s rejection of the single course of conduct submission was determined because the conduct occurred on different dates, with different participants and in different contexts.  Notwithstanding that, her Honour did take into account the ‘not being punished twice’ principle by having regard to the related  totality principle, in that where penalties are being imposed for a number of related contraventions, it is necessary to ensure that the penalties are just and appropriate to the circumstances of the case [45]. In dealing with the CFMEU’s contention that the penalties imposed on the organisation were manifestly excessive, the majority found that the Appellant must prove that the sentence is unreasonable or plainly unjust [50] or, to succeed, it must prove the sentence was “wholly outside the range of sentencing options available” to the sentencing Judge [51]. The majority found that the contravention was serious and done in a deliberate disregard of applicable legislation [52]. This ground of the appeal also failed.

One can see why the CFMEU and other unions in the building industry have for a long time sought to have the Office of the Australian Building and Construction Commissioner(ABCC) abolished. The CFMEU have been the subject of many such prosecutions which have led to the imposition of  significant fines.  A short perusal of the website of the ABCC will show that of the five upcoming court cases listed on that webpage, all are against the CFMEU and various individuals.  By the same token, the CFMEU once again proves itself to be a union, which resolutely, albeit sometimes on the wrong side of  statutory restraints, stands up its members. Perhaps the fines are just the cost of doing its business  . Such behaviour does engender profound loyalty amongst  its membership which, the CFMEU clearly has.  It is also one of the few unions that still creates work for lawyers.

Liability limited by a Scheme approved under Professional Standards Legislation

Here is a paper I delivered at the IIR Conferences,  Fair Work Summit 2010 held at the Marriott Hotel, Sydney on the 17th May 2010.

It is timely that a conference of this kind gather as we approach the first anniversary of Fair Work Australia.  I must confess , that I was not a supporter of a truly  national industrial relations system at the expense of the State Industrial Relation Commissions, particularly in States such as New South Wales, Western Australia and Queensland.  Those states always had strong State systems, which covered a significant part of their States’ workforce.  My opposition to a federal all embracing system, perhaps stemmed from my conservative credo, perhaps best expressed by a comment made by the former Chief Justice of the United States  Supreme Court, William Rehnquist, which appeared in the April 2005 edition of the Atlantic Monthly, when he was asked to identify his political philosophy:

“I’m a strong believer in pluralism.  Don’t concentrate all the power in one place.  You don’t want all the power in the government as opposed to the people.  You don’t want all the power in the federal government as opposed to the states.”

Justice Rehnquist had a faith in local majorities and was suspicious of broad federal power.  He also voiced another conservative belief  in that same article, that is, an insistence on the importance of continuity and tradition for social stability.  These profound changes to the way our industrial relations system works was brought about by the Howard Government in the Work Choices Legislation, ultimately upheld by the High Court on account of its reliance with the constitution’s corporations power.

Notwithstanding my inhibitions and reluctance to support a national system, I must say that Fair Work Australia does appear to be working well and does appear to be complying with its legislative objectives.  That is not to say that every case which any court or tribunal decides is correct or one with which one can agree. However, my reading of  a number of cases, particularly  at Full Bench level  of Fair Work Australia over the past nine (9) months or so, together with some  single member decisions, in my opinion  there does appear to be a very real trend that perhaps unlike some criticisms of other industrial tribunals, that  this eponymous tribunal is living up to its name.  That is, there is not a preponderance of wins for one side as opposed to the other.  I shall deal with this later in terms of some unfair dismissal cases, but in an overall sense the new tribunal is operating in a way so as not to attract strident criticism from any particular group.

One aspect, however, for newcomers to the federal system and existing participants, is the very technical nature in which  applications are considered.  The Fair Work Act, as its predecessor, Workplace Relations Act , as a practitioner, were always far more complicated to deal with than  State counterpart statutes.  I would like to deal with a couple of recent decisions which highlight  the significant  technical requirements which need to be  complied with prior to approval being granted by the tribunal.  This is also the case even when the parties are presenting a joint approach to Fair Work Australia.  Some of the members of Fair Work Australia will not accept  such consensus on its face and will make up their own minds after a  scrutiny of the documentary material filed in support .  I shall  also deal with a couple of other decisions, which concern other new  aspects found within the Act.

The first decision is a case called Construction, Forestry, Mining and Energy Union – Mining and Energy Division ats Tahmoor Coal Pty Limited [2010] FWAFB 3510, a decision of the Full Bench of Fair Work Australia delivered on the 5 May 2010.

This decision deals with good faith bargaining requirements under the Fair Work Act (the Act), which was on appeal from a decision of Commissioner Roberts of the 12 February 2010 (see [2010] FWA 942).  Permission was granted to appeal in the public interest, as the appeal was said to raise matters for consideration concerning important new statutory provisions, which had not been considered at a Full Bench level before [1].

The case below was one in which the CFMEU, on behalf of its members working in this coal mine, had sought a number of bargaining orders.  The CFMEU was unsuccessful and on appeal, narrowed the nature of the orders it sought.  The making of bargaining orders, comes under Chapter 2, Division 8 of the Act.  That division is headed,“FWA’s General Role in Facilitating Bargaining”.  This case highlights the role that Fair Work Australia will have, and the circumstances in which that tribunal can be enlisted to assist parties to reach an agreement.  In order to make such bargaining orders, it must be found by Fair Work Australia that at least one of the bargaining representatives has not met, or is not meeting the good faith bargaining requirements. (See s 230, sub-section 3(a)(i)).  The meaning of “good faith bargaining requirements” are set out in s 228 of the Act.

On appeal, the CFMEU relied upon one sub-section of s 228, being  as follows:

“228(1) The following are the good faith bargaining requirements that a bargaining representative for a proposed enterprise agreement must meet:

(e) refraining from capricious or unfair conduct that undermines freedom of association or collective bargaining; –“

The Full Bench said of that provision:

“The terms of that provision require not only that conduct undermines freedom of association or collective bargaining but also that the conduct be capricious or unfair.  Of course whether conduct is capricious or unfair can only be ascertained by an examination of all the circumstances in a particular case.” [7]

What had invoked the ire of the CFMEU, in what had been long and complex negotiations, attended by a number of industrial stoppages, was the fact that Tahmoor Coal was directly providing to its employees, who were also members of the CFMEU, its offer in writing in the Enterprise Agreement negotiations.  It was asserted by the CFMEU that by the employer directly communicating to those employees, it would encourage different views amongst that group of employees, without the bargaining representatives being present (CFMEU).  This conduct, it was claimed had the natural effect of weakening or undermining collective bargaining.  Further, such conduct would diminish the authority of the employee’s bargaining representative in the collective bargaining process [19]. It was also asserted that the most recent representative of Tahmoor Coal, had conducted the negotiations “at a level of intimidation”, which drew some comment both from the Commissioner at first instance and from the Full Bench.  This latter submission in relation to the manner in which the Colliery’s representative had conducted the negotiations, were to make good the argument that the Colliery had acted “capriciously or unfairly”.  The Full Bench said,

“The Commissioner accepted that Mr Nicholls (on behalf of the Colliery) adopted a very aggressive approach in the employee meetings and that he “probably crossed the line of what is reasonable in the  circumstances”, but he commented that aggressive tactics appear to be the norm in the coal industry.  We take this to be a finding that whilst Mr Nicholls’ behaviour might have been unreasonable in most industries, it was not inconsistent with normal behaviour in coal industry negotiations.  Aggression is to be deprecated.  But given some of the evidence of employer responses to Tahmoor’s proposals, taken with the Commissioner’s familiarity with the industry, the finding was open to him. We do not regard the fact that Mr Nicholls had referred to the possibility of employees being locked out as significant.  It appears that this statement was made in the context of response to the taking of protected action by employees.” [31]

I never thought that it could be said that the CFMEU were “shrinking violets”

However, on the key matters raised in the appeal, the Full Bench found against the Appellant.  The Full Bench found that  Tahmoor Coal had attempted to influence employees views directly, and not through the filter of the Union, however  it did not necessarily follow that such conduct undermined freedom of association, or collective bargaining, or that it acted capriciously or unfairly  [29] . In relation to the argument regarding the conduct of the ballot of employees, the Full Bench found that there was no absolute requirement for the agreement of  bargaining agents to occur, prior to the conduct of a ballot, and this was particularly so when the parties had reached an impasse in the negotiations  [30]. Consequently, the decision below, which in effect permitted the ballot on the Enterprise Agreement proposals by the company, was not stopped from taking place.

This case provides more explanation of the detailed technical provisions under the Fair Work Act with this one concerning bargaining for new industrial instruments.  It also shows that such negotiations can be extensive, and like this case, can go for many months and comprise up to fifty negotiating meetings, without agreement or the prospect of having the disputed matters arbitrated. Such negotiations are not easy and may lead to agreement  by exhaustion.

The next two (2) cases I deal with concern applications for protected industrial action.

Ford Motor Company of Australia Limited ats Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia & Ors [2009] FWAFB 1240 dated 11 December 2009.

Telstra Corporation Limited ats Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2009] FWAFB 1698 dated 15 December 2009.

These two (2) cases were handed down on the 11 December 2009, and the other on the 15 December 2009.  They relate to the following matters:

1. The Full Bench of Fair Work Australia last December handed down two decisions which show that that Tribunal despite its ability to approve protected industrial actions in certain circumstances will only do so when the Applicants for such protection comply with the complex technical regime set out in the Fair Work Act.

1. The Full Bench’s refusal to approve the protected action applications no doubt fulfils sensible people’s views that strike action is to be avoided and even when permitted by legislation, contrary to the common law, will only do so when all the technical requirements have been met.  These two decisions provide significant instruction to industrial parties setting out when and in what circumstances such protected industrial action orders will be granted.

1. The first case involving the Ford Motor Company concerned an Appeal from a decision of Senior Deputy President Watson who had made  orders authorising the holding of protected action ballots by certain employees of the Ford Motor Company.  The Full Bench in this case  provided further  explanation of the provisions relating to  bargaining for new enterprise agreements and the time at which and when a protected action  balloting orders could be made.  The hitch in this case was that a small section of the employees of Ford were covered by an agreement, which was yet to expire.  Ford after extensive bargaining had occurred, wrote to the other side indicating that the agreement could not cover all the relevant employees and as a consequence the unions could not apply for a protected action ballot order.  The unions, in response sought to exclude some employees from the negotiations.

1. The majority decision of the Tribunal (Senior Deputy President Kaufman and Deputy President Ives) in a joint judgment upheld the appeal based upon the scheme of the Act and a close reading of the technical provisions for the securing of such protected action [17] et seq.

1. The Notice requirements set out in s 173 of the Fair Work Act were crucial and as was the time when such Notice was given to the employees to be covered by the proposed agreement.  Attempts after such a Notice was given to exclude some employees from the agreement proved ineffectual.

1. The majority said that it was inherent in the entire bargaining process that the employer bargain for a proposed agreement that will cover an identified group of its employees [35].  The “proposed agreement” referred to in s 443(1) is “the proposed enterprise agreement” found in s 173(1) in respect of which an employer must give to its employees a Notice of their representational rights [36].  The identity of the employees to be covered by the “proposed agreement” must be clear and be known at all stages of the bargaining process [45].

1. The majority held that the discussions which occurred after the purported exclusion of the employees covered by an existing agreement were nothing more than general discussions about aspects of an agreement that might be formally the subject of bargaining under the Act once the employees who were to be covered by it were ascertained [49].

1. Commissioner Lewin although would have granted leave to  appeal he dismissed the appeal and provided reasons for his dissent [51] et seq.The unions were left with no choice but to recommence the entire process.

1. I now turn to the Telstra Appeal.  Telstra had sought a decision from Vice President Lawler of Fair Work Australia that an Order should be made under s 418 of the Fair Work Act in relation to industrial action proposed by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU). Section 418 provides that Fair Work Australia must make an Order that industrial action stop or not occur if it is satisfied that the industrial action is not, or would not be, protected industrial action.  Before the Vice President and the Appeal Bench it was common ground that pursuant to s 413(4), industrial action is not protected action unless the notice requirements in s 414 have been met.  Relevantly, s 414(6) provides:

“A Notice given under this section must specify the nature of the action and the day on which it will start.”

The evidence below was that the following Notice was given in relation to the proposed industrial action:

“The employee claim action will take the form of an unlimited number of indefinite stoppages of work by those CEPU members whose normal place of work is all States and Territories of Australia.

The employee claim action will occur between the hours of 12:01am and 11:59pm on Wednesday 2 December, 2009.”

10. It was Telstra’s case below and on Appeal that the Notice failed the requirements set out in s 414(6) in that it was too indefinite and vague.  The Full Bench in considering the adequacy of the Notice considered the context in which Telstra operates in Australia.  It  employs some 34,000 employees in hundreds of work locations throughout Australia.  The evidence did not indicate the number of employees relevantly who were members of the CEPU. It was also noted that the potential effect on Telstra’s operations of industrial action by CEPU employees could be very significant.  In considering the expression “indefinite stoppages” the Full Bench found that whether it complies with s 414(6) would depend upon the context in which it appears and the surrounding circumstances.  The Full Bench said:

“In this case the use of the expression does very little to shed light on the nature of the action to be taken.  First, the expression is used in the plural.  This indicates that there will not be one stoppage of all CEPU members, but there will be a number of them, thereby raising questions about the precise number and the location of the stoppages.  Secondly, the expression is used in the Notice in conjunction with the words “an unlimited number”.  Read as a composite phrase the potential for variation in the number, length and location of stoppages is very wide.”  [14]

Further they said:

“The Notice does no more than specify that there will be stoppages of an indeterminate number and length at locations at which CEPU members work.”  [15]

The Full Bench respectfully disagreed with the Vice President’s conclusion in relation to the adequacy of the Notice and said:

“—it is implicit that the description of the action contained in the Notice should be sufficient to put the employer in a position to make reasonable preparations to deal with the effect of the industrial action.  In order to prepare for all eventualities contemplated by the Notice in this case, Telstra would have to plan on the basis that every CEPU member would be on strike for the whole of the day in question. Yet that is not what the Notice says.  Given the nature of Telstra’s operations some greater specification would be required.  Indeed, on one view the Notice conceals more than it reveals about the industrial action that will in fact occur.”  [16]

The Full Bench ultimately found that the Notice failed to comply with the provisions required in s 414(6) although said that:

“whether a particular Notice meets the  requirements… will depend upon its terms and industrial context .Every case is different and each Notice must be looked at having regard to all relevant considerations.”  [18]

11. The importance of complying with the technical legislative requirements is important for employees going on such industrial action.  Not to have such protection could expose themselves and their union officials or bargaining agents to actions for damages arising out of breach of contract or the economic torts such as inducing a breach of contract or interfering with contractual relationships.

More recently, is an application for the approval of an Enterprise Agreement.  It was a large Enterprise Agreement for 80,000 employees employed at various McDonald’s outlets in Australia.  That case is McDonald’s Australia Enterprise Agreement 2009 [at 2010] FWA 137 delivered by Commissioner McKenna on the 23 April 2010.

Commissioner Donna McKenna, formerly of the Industrial Relations Commission of New South Wales, now a Commissioner of Fair Work Australia,  rejected an Application filed by McDonald’s, for an Enterprise Agreement to cover the employees, employed in all McDonald’s outlets in Australia.  The Application under s 185 of the Fair Work Act filed by McDonald’s was supported by the union, the Shop Distributive and Allied Employees Association (SDA) which was closely involved in the making of the Agreement  and supported its approval .  The Commissioner handed down a 102 page judgment of 383 paragraphs, setting out many reasons why the approval of the proposed Agreement would be declined.  The length of the judgment is more telling, in that there was no contradictor in the case.  The application for approval had been filed last December.  The matter had been listed for hearing at various times earlier this year when the Commissioner had raised a number of preliminary concerns about the Application.  In February this year, she made a Statement expressing further concerns about the proposed Agreement.  The parties provided statutory declarations in addition to the material originally filed, in order to allay the concerns of the Commissioner.

The Commissioner’s judgment noted that a number of the declarations made by the Applicant were either insufficient or incorrect, which observation was admitted by the Applicant [6].  Notwithstanding the additional declarations, the Commissioner still found the Application deficient with respect to the provision of information required in support of such an application for approval [10].  The Commissioner considered the pre-approval requirements for an Enterprise Agreement found at s 180 of the Act.  The deficiencies and failures individually identified by her would have been sufficient for her to reject the application let alone cumulatively.  Of great concern to the Commissioner was that she found the pre-approval requirements under s 180 were not met. These requirements provide that employees need to have a free vote, in  possession  of all relevant information and explanation of the Agreement with special emphasis on  McDonald’s employees, subject to some kind of disability such as their comparative youth,  See sub-section 180(6).   She could not find that the Agreement was one which the employees in question could have genuinely agreed (s 188),[84[ to [97] inclusive .

In dealing with the issue of whether the Agreement could  pass “the better off overall test” (s 186(2)(d)), the Commissioner found that  she could  not be  so satisfied.  In considering this test, the Commissioner had regard to the previous industrial regulation applicable to employees at McDonald’s, which had largely been based on  discreet industrial instruments in the States and Territories which  regulated the minimum pay and conditions of employment for certain classes of employees [1].  The Commissioner had regard to what are  called reference instruments, being the industrial instruments currently applicable to McDonald’s throughout the States and Territories in Australia [21] and [22].

Having regard to those pre-existing documents, she  stated,

“I am not satisfied the multitude of disadvantages presented by the Agreement is, in a form of overall industrial equilibrium, offset by its marginal advantages. I do not consider the Agreement satisfies the no disadvantage test.” [357]

The depth of the Commissioner’s feelings in relation to the failure of the Agreement to pass this test also known as the   no disadvantage test can be gleaned from some of the pejorative  descriptors she used regarding aspects of the proposed Agreement.  She said,

“… the Agreement allows potentially quite exploitative arrangements for rostering of employees—“ [118]; “— the Agreement would provide only flat hourly rates for casual employees in the Territories.  This would represent a significant financial disadvantage of around 20% on the hourly rate as against the reference instruments.”  [141]; “— wages would be decreased for certain classes of employees.”  [155];  “— the Agreement appeared to displace, remove, omit or reduce conditions that would have applied under the reference instruments.”  [296];  “An examination of the wage rates shows that in the case of Queensland employees, the starting wage rate for level 1 employees is said to compensate, in an overall sense, for the loss of a range of conditions under the reference instrument is no more than the standard national  minimum of $543.78 a week.” [299];  “However, if the adjustments are considered over the life of the Agreement, the adjustments are, in some instances, less than the national minimum adjustment.”  [306];  “While I accept the Agreement contains a mix of advantages and disadvantages, I have concluded the Agreement would represent an emphatic diminution  in overall terms and conditions for the employees who would be subject to its proposed operation.”  [379].

As a parting shot at McDonald’s, in the final paragraph of the judgment, the Commissioner referred a copy of the decision to be sent to the Fair Work Ombudsman to investigate evidence which would suggest that the Applicant or its licensees, or both, may have been underpaying some employees.  [383].

The cheapest item for sale at McDonald’s restaurants is the 50c soft serve cone.  Commissioner McKenna gave the parties, particularly the bargaining agent the SDA, a serve but certainly not a soft one.  This rebuke , a  particularly embarrassing one to the SDA, is a reminder that tribunals such as Fair Work Australia will not rubber stamp Agreements. Over   twenty years ago during the days of the Wages Accord the Federal Commission investigated  wage deals in industrial instruments, which were suspected  to have provided wage increases in excess of those permitted under the wage fixation principles .  It appears now that a not insignificant part of Fair Work Australia’s duty is to investigate the converse .

Commissioner McKenna has also repeated her comments regarding the need to comply with the technical approach required by the Act in the approval of the Enterprise Agreements.  In a more recent decision involving HealthCare Imaging Services [2010] FWA 3473 delivered on the 4 May 2010, unlike the McDonald’s case in which the parties were in complete agreement regarding the application to approve the Agreement, in the HealthCare Imagining case, the Union, being the Health Services Union, raised various concerns about the processes leading up to the making of the Agreement and on the basis that some information provided was not correct and that the Agreement ought not to be approved, because of a failure to comply with certain pre-approval steps found in  the Act. [4] In that case, the proposed Agreement covered 84 work sites.  Two (2) of the work sites were not  provided with   voting  material within the  relevant time frame for voting as required by s 180 of the Fair Work Act . It was submitted that the difference in the ballot outcome could not have been affected by the two (2) work sites which were not able to be given the voting material in the relevant time frame.  Her Honour found:

“It does not seem to be open to adopt some form of sliding scale in relation to the pre-approval steps, based on whether the employees’ votes would have altered the outcome of the ballot.”

What also earned the Commissioner’s indignation was that one of the employee’s absent on maternity leave did not receive a ballot paper. [22]

In another recent decision, Deputy President Sams in the rather bizarrely named case called Guns “R” Us Pty Limited as Trustee for the In God We Trust Enterprise Agreement and other Agreements [2010] FWA 3633 delivered on the 6 May 2010 said about an application for an Enterprise Agreement filed pursuant to s 185 of the Act as follows [at 8]:

“I would make one further observation before formally approving the Agreements.  This case, like so many others involving s 185 applications before Fair Work Australia (FWA), demonstrates a less than diligent attention to the particular requirements of the Act and Regulations under Part 2-4.  It is for good reason that the Employer Declaration is to be in the form of a Statutory Declaration.  I continue to be surprised and perplexed that, in so many applications, the Form 17 is filled out as if it meant little more than notes on the back of a beer coaster or on the basis, it seems, that “close enough is good enough”.

There has also been some misapprehension that it is for the Tribunal to determine the accuracy of the Form 17.  Less there be any doubt, Form 17 is the employer’s verification document, not the Tribunal’s guide to correcting the employer’s laxity or error.  Moreover, given that these agreements are to regulate the terms and conditions and set the industrial framework for employees and their employer for up to four (4) years, one would expect recognising the importance and longevity of these arrangements, that a little more time and care might be put into the initiating documentation.”

His Honour’s “beer coaster” remark reminds me of what was once said by Justice Marks in the New South Wales Industrial Court in a case called Jay ats Colonial Services Pty Limited (2002) 113 IR 47 at 48 when he observed that interlocutory orders for the preparation of cases for hearing were orders of the Court and were not to be regarded as having the same status as a “hairdresser’s appointment which could be changed at whim.”

The Full Bench of Fair Work Australia in a decision  concerning the Bank of Queensland Agents’ Award 2004 [2010] FWAFB 1543 gave a preliminary view as to what needs to be dealt with in applications to make a modern enterprise award with the process being dealt with under item 4 of Schedule 6 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009. The enterprise instrument modernisation process  concerns the making of  modern awards under that Division to replace enterprise instruments.  In relation to it the Full Bench said:

“We point out that persons covered by enterprise awards and instruments are excluded from the scope of modern awards.  However, this is a general exclusion included in all modern awards.  It does not imply that any particular award is of an enterprise character.  Nothing which occurred during modernisation indicates that the 2004 award is or is not an enterprise instrument.  It was unnecessary to determine that question in the making of the relevant modern award and there was no statutory definition to concept.  The question of whether this award is an enterprise award – based instrument arises for the determination for the first time in these proceedings.  The Full Bench was not satisfied they had sufficient material before it to make the relevant orders so called upon the parties to provide further considerations.  In relation to modern enterprise award it says this [at 12] This is the first application to make a modern enterprise award.  It is a contested matter which raises important considerations about the operation of the modern enterprise award objective, and the interaction between that objective, the modern awards objective and the minimum wages objective.  The matter also raises important questions concerning the factors required to be taken into account under item 4 of Schedule 6 to the Transitional Act, both in relation to whether a modern enterprise award should be made and if so, the content of any such award.”

Beyond  Fair Work Australia, the Federal Court is also considering new provisions of the Act and in this regard see the case of Jones ats Queensland Tertiary Admissions Centre Limited (No.2) [2010] FCA 399 (delivered 29 April 2010) in relation to an adverse action claim.

Justice Collier of the Federal Court of Australia, sitting at Brisbane, had earlier issued interlocutory orders restraining QTAC from taking any action against the Applicant, Ms Jones until the hearing of the substantive Application filed in these proceedings.  See Jones at Queensland Tertiary Admissions Centre Limited (2009) FCA 1382, and also the comment published on this website on the 3 December 2009.

After having heard the substantive application, Justice Collier dismissed Ms Jones’ application.  Ms Jones, who was the Chief Executive Officer of QTAC, had been the subject of serious bullying allegations by individual employees of QTAC and the Australian Services Union (“ASU”) [1].  Ms Jones had claimed that the ASU had orchestrated a campaign against her, relevant to her conduct in the 2009 enterprise bargaining negotiations as spokesperson for QTAC. Further, that in taking adverse action against her, it was alleged that QTAC had yielded and continues to yield to this campaign by the ASU, in contravention of the Fair Work Act 2009.  Ms Jones had sought many orders in her application, amongst which was that her employer not act upon any investigation report received concerning her alleged behaviour.  Rejecting all these claims, Justice Collier said ,

“[200] Further, I consider that QTAC’s actions were in no way related to any workplace rights of Ms Jones.  I consider that Ms Jones’ role as bargaining representative, and her participation in enterprise agreement negotiations, were completely irrelevant to QTAC’s reasons for the actions it took.

[201] It follows from this consideration that Ms Jones has not substantiated her claims against QTAC pursuant to s 340 of the Act.

In dealing whether there was any claim, Justice Collier made the following observations ,

“ [9] It was common ground between the parties that Ms Jones bears the onus of proving she has a workplace right under the Act.  However, once an employee has established that he or she has a workplace right, and has been the subject of adverse action by the employer, the onus of proof shifts to the employer in respect to the reason for the adverse action by the employer.  At this point the onus is on the employer to demonstrate that the adverse action taken against the employee was not for a reason prohibited by the Act.

[10] That the employee is required to first prove the existence of objective facts which are said to provide a basis for the alleged adverse action before the onus shifts to the employer in respect of the prohibited reason was explained by Branson J in Construction, Forestry, Mining and Energy Union against Coal & Allied Operations Pty Limited (1999) 140 IR 131 at [161] – [162]. …….. It is not sufficient for Ms Jones to simply allege that she has a workplace right and that she has been the subject of adverse action – rather on the assumption that Ms Jones is able to prove these allegations, the burden is then cast on QTAC to prove that adverse action was not taken against Ms Jones because of her workplace rights for the purposes of s 340 and s 361 of the Act.”

In order to determine for what reason adverse action may have been taken against an employee , it is relevant to consider the subjective reason or  reasons for the taking of the impugned action by the employer, and if the employer is a corporation, of its directors [128].  Despite what was found in General Motors Holden Pty Limited  v  Bowling (1976)  12 ALR 605, even if all the directors who made the decision are not called, there can be sufficient evidence accepted of the motivation of the board of directors in acting as it did [167].  Her Honour found that the only reasons motivating the key directors of QTAC in taking adverse action against Ms Jones, was a concern for the organisation, that Ms Jones had been mistreating staff members, a belief that it was essential that action be taken by QTAC to investigate such allegations, and a wish to ensure that any investigation be conducted with proper procedure, including Ms Jones being given a reasonable opportunity to present her side of the story [168].  Her Honour also dismissed allegations that there had been a breach of contract and a failure to provide natural justice to Ms Jones.

Adverse action claims such as this under the Fair Work Act, will very much depend upon the finding of facts made by the trial judge and are a more problematic alternative remedy compared to bringing unfair dismissal proceedings before Fair Work Australia. If one’s advisers believe that an adverse action claim under the Fair Work Act is arguable  in the Federal Court  using the Court’s  accrued jurisdiction one might also consider pleading the economic torts of conspiracy, interference with contractual relations or intimidation ( see Latham v Singleton ( [1981] 2 NSWLR) 843 per Nagle CJ at CL )

If one turns to one other aspect of Fair Work Australia’s provisions, it is all not going the way of the  workers in unfair dismissal cases.  Some recent decisions to that effect are Nick Kolodjashnij ats Lion Nathan t/as J Boag & Sons Brewing Pty Limited [2010] FWABFB 3258 (3 May 2010) in which a Fair Work Australia Full Bench rejected an employee’s argument that his sacking was for breaching brewer, Lion Nathan’s “responsible drinking” policy was disproportionate.  In another similar drinking case, Fair Work Australia’s Deputy President McCarthy upheld the dismissal of an employee who failed a breath test just three (3) days before the wind up of a major offshore project that would have triggered the entitlement to a large redundancy payout.  See Doug Smith ats BHP Billiton Petroleum Pty Limited [2010] FWA 3349 (28 April 2010).  The Deputy President upheld the company’s policy on the basis that not to do so would have compromised the safety policies which countered any suggestion that the dismissal in the circumstances was harsh and unconscionable.  Another case which suggests that it is all not going the workers or the unions’ way in Fair Work Australia,  is Ulan Coalmines Limited ats Henry John Howarth & Ors [2010] FWAFB 3488.  In this case Ulan Coalmines successfully challenged the single FWA member’s ruling that ten (10) workers dismissed last year during a restructure were not genuinely made redundant.  The challenge to the dismissals was that they were not genuine redundancies as defined by s 389 of the Fair Work Act.  The Full Bench overturned Commissioner Raffaelli’s decision on the basis that he failed to draw “an appropriate distinction in his reasoning between the jobs of mineworkers who were retrenched and the functions performed by those mine workers.”  Further, he was mistaken in failing to take into proper account the nature of the restructure of the mine and the fact that it led to an overall reduction in the number of non-trade jobs.

Although it has recognisable antecedents, FWA is still in its infancy.  New provisions are being considered  by single members and ultimately given authoritative interpretation by its Full Bench.  I have referred to are a couple of these cases.  However, Fair Work Australia does have a very good website, which it updates regularly. One can read  it for free without necessarily having to be a subscriber to some of the legal  and IR commentaries .  I am not criticising such services .  They are very good , such as the Fair Work portal on Thomson Reuters’ web site  and also the  email commentary called “WorkPlace Express”.  By keeping up to date with these developments and being conscious of the very technical nature of many of the applications which come before Fair Work Australia, you will be in a better position to be able to navigate successfully such requirements which surround  participation in  this new tribunal.

Jeffrey Phillips SC,

Denman Chambers, Sydney