Community and Public Sector Union v State of Victoria

Federal Court of Australia|2000-06-08|Before: Marshall J, Mansfield JJ

THE COURT: 1 This is an appeal against a judgment of a single judge of this Court given on 14 January 2000 in proceedings arising under the Workplace Relations Act 1996 ("the Act") . The proceedings were brought by the Community and Public Sector Union ("the Union") and Mr Robert Murrell and Mr Darren Hutchins against the State of Victoria ("the respondent"). They concerned the employment of Murrell and Hutchins within the Victorian prison system and it was alleged that the respondent had failed properly to apply to the Public Service (Non Executive Staff-Victoria) Interim Award 1996 ("the Award") to their employment. Penalties were sought under s 178 of the Act for breaches of the Award. It was also alleged that a number of provisions of Part XA had been contravened by the respondent. 2 The alleged failure properly to apply the Award depended upon whether the employment of Murrell and Hutchins could, for the purposes of the Award, be characterised as casual employment. The gravamen of the complaint was that Murrell and Hutchins were paid under a provision in the Award applying to casuals but that neither were casuals in fact or in law. The learned primary Judge concluded that the employment was casual employment. His Honour did so after reviewing the manner in which Murrell and Hutchins worked (referring to matters such as the hours worked, the regularity of the employment and the ability of Murrell and Hutchins to reject or accept employment for particular periods) and authorities dealing with what is comprehended by the notion of casual employment: such as Doyle v Sydney Steel Company Ltd (1936) 56 CLR 545; Ryde-Eastwood Leagues Club Ltd v Taylor (1994) 56 IR 385; Reed v Blue Line Cruises Ltd (1996) 73 IR 420. His Honour also referred to the provisions of the Public Sector Management Act 1992 (Vic) ("the State Act") under which Murrell and Hutchins had been initially engaged. 3 In our opinion, the issue of whether the respondent correctly applied the Award can, in the circumstances of this case, be resolved on a fairly narrow basis. The provision of the Award central to these proceedings is clause 12 which prescribes rates of pay and, in relation to casual employees, provides: "12.7 Persons employed on a casual basis will receive a loading of 15% on top of the rights specified in this clause, as compensation in lieu of any entitlement to the following benefits: public holidays, recreation leave and leave loading, sick leave, parental leave, compassionate leave, carer's leave/family leave, jury service, accident compensation leave and defence forces leave." It can be seen that special provision is made for employees "employed on a casual basis". Before considering what that expression means it is convenient to refer to two other clauses in the Award which identify, in our opinion, the manner in which it was intended to operate. Clause 3 contains various definitions and includes a definition of "employee" in the following terms: "3.3 Employee includes employees and officers of the Crown employed pursuant to either Division 4,4A,5 or 5A or Part II of the Public Sector Management Act 1992 (Vic) and "employed" shall be given a like meaning." Clause 5 identifies the parties bound by the Award and the scope of its operation. It states that the State of Victoria is bound in respect of all persons falling within the scope of Schedule 1 to the State Act. Schedule 1 of the State Act identifies various Departments and Administrative Offices including the area (part of the Department of Justice) in which Murrell and Hutchins were employed. There is an obvious link intended between the terms of the Award and the State Act. 4 The State Act identifies, for present purposes, two classes of employees. The first is constituted by officers appointed under Division 4 of Part 2 and the second is constituted by employees employed under Division 5A as casual employees. The appointment of officers under Division 4 involves a procedure which, in the ordinary course, entails appointment on probation and the later confirmation, extension or annulment of that appointment. There is also a requirement that a person be an Australian citizen or otherwise satisfy s 36. Division 5A contains only one section, s 35A, which provides: "35A. Casual employees (1) The appropriate Department Head may, if of the opinion that it is necessary to do so, employ persons on an hourly, seasonal or other casual basis to carry out work in the Department. (1A) Section 24 applies to the employment of casual employees under this Division. (2) Except for sections 6 and 83 and any provision which expressly applies to casual employees or employees, nothing in this Act applies to casual employees." This provision confers power on a Department Head to employ an employee as a casual employee. That power is to be contrasted with the power of appointing an officer under Division 4. It is clear, in our opinion, that the expression "employed on a casual basis" in clause 12.7, comprehends employees employed under s 35A of the State Act which speaks of a Department Head being able to "employ persons on (a)…. casual basis". While there is a minor difference between the language of the Award provision and the language in the State Act (even allowing for the interpolation in s 35A(1) of the State Act of the words "hourly, seasonal or other…") it cannot be doubted, in our opinion, that clause 12.7 was intended to apply only to employees employed under s 35A. 5 There was unchallenged evidence before the primary Judge that both Murrell and Hutchins had been employed by a delegate of the relevant Departmental Head under s 35A. Accordingly, the legal character of their employment, for the purposes of how the Award would operate, was determined by the manner of their initial engagement. It is irrelevant, in our opinion, that the evidence might support a conclusion that, after their initial engagement, their employment had some of the hallmarks of regular employment rather than casual employment. It is unnecessary to consider those authorities which accept that, in appropriate circumstances, employment can properly be characterised as regular casual employment. It is also irrelevant, for present purposes, whether the Award was drafted on the assumption that casual employees would work in a particular way and not in the way that Murrell and Hutchins in fact worked. 6 The learned primary Judge was correct both in declaring that Murrell and Hutchins were casual employees within the meaning of Div 5A of Part 2 of the State Act and also (as the appellants put it in the notice of appeal) failing to find that the respondent had breached the Award. 7 The second part of the appeal concerns two aspects of the decision of the learned trial Judge that the respondent had not contravened s 298K of Pt XA of the Act. 8 His Honour categorised the actions involving contravention of s 298K for a reason prohibited by s 298L as (1) a threat to demote Murrell (2) a threat to inflict physical violence on Murrell (3) insulting, intimidating and humiliating behaviour directed to Murrell and Hutchins (4) a reduction in the rostered hours allocated to Murrell and to Hutchins (5) a reduction in access to training opportunities for Murrell. 9 The reason for those alleged contraventions was said to be the involvement of Murrell and Hutchins as promoters of the claim made in this proceeding that they and others were entitled to be, and were, employed by the respondent as permanent full time employees and not as casual employees. The alleged conduct was therefore said to be for a prohibited reason under s 298L of the Act. Of course, it was for the respondent to prove that the conduct, if established, was not for a prohibited reason: see s 298V which provides:

"If: (a) in an application under this Division relating to a person's or an industrial association's conduct, it is alleged that the conduct was, or is being, carried out for a particular reason or with a particular intent; and (b) for the person or industrial association to carry out the conduct for that reason or with that intent would constitute a contravention of this Part; it is presumed, in proceedings under this Division arising from the application, that the conduct was, or is being, carried out for that reason or with that intent, unless the person or industrial association proves otherwise." The proceeding was subsequently amended to include the claims under Pt XA of the Act. 10 His Honour found that, although there had been a threat to demote Murrell, it had not been made for a prohibited reason, so that the alleged contravention in (1) above was not made out. The matter in (2) above is the subject of this appeal and will be dealt with separately. The matter in (3) above was found not to constitute conduct falling within any provision of s 298K of the Act, so it was unnecessary to determine whether the respondent had discharged its reverse onus of proving that the conduct had not been for a reason prohibited by s 298L. The matter in (4) above did not contravene s 298K because the alleged conduct was not proved to have occurred as alleged, and because any reduction in the rostered hours allocated to Murrell and Hutchins was found not to have been for a prohibited reason. The matter in (5) above was not established simply because his Honour was satisfied that Murrell's training opportunities had not been restricted for a prohibited reason. 11 The appellants on this appeal make two attacks on the primary Judge's treatment of the contraventions alleged. The first is that his Honour did not deal with the allegation that the respondent, by an officer, Mark Maloney ("Maloney") had threatened to dismiss Murrell and Hutchins in breach of s 298K(1)(a) because it had engaged in that conduct for a prohibited reason as specified in s 298L. 12 The second is that his Honour erred in his consideration of the claim in (2) above that the respondent, by Maloney, threatened physical harm to Murrell for a prohibited reason in contravention of s 298K(1)(b) or s 298K(1)(c). 13 The first matter can be shortly dealt with. It is acknowledged by the respondent that par 42 of the amended statement of claim alleged that the respondent had contravened s 298K by threatening to dismiss Murrell and Hutchins. It is also acknowledged that the appellants led evidence at the hearing on that claim, and that the issue was litigated at the hearing. The learned Judge at first instance appears not to have determined that question. It is therefore clear that this appeal should be allowed at least in part for the purpose of remitting the matter to his Honour for determination of the issue raised by par 42 of the amended statement of claim in the light of the evidence and submissions made. It will be a matter for his Honour whether he requires any further submissions to be made on the question. 14 The other matter raised on this appeal concerns his Honour's conclusion that s 298K had not been contravened by Maloney threatening to cause physical injury to Murrell. His Honour first referred to the affidavit of Murrell which was relevantly in the following terms:

"On 8 April 1999 I had another conversation with Mark Maloney in his office. He said to me that he did not think I had been loyal in agreeing to be one of the Applicants in this proceeding. He said I should have spoken to him about the matter. He told me the union are "treacherous". He said I might find myself "with holes in my legs 6 months down the track". I understood this to be a reference to "kneecapping", meaning shooting a person through the knee caps. Maloney told me "some staff are cheesed off" with me and that the legal proceedings may have been the reason why Tom Hinkley, one of the other casual prison officers, had had an altercation with me the previous day. I informed Mark that "I may well end up with holes in my legs" but I was in the litigation "for the long run". 15 His Honour's reasons for his conclusion appear from the following passages in the judgment:

"Mr Murrell alleged that that conversation constituted a threat to him of physical violence by Mr Maloney. It is equally capable of being construed as Mr Maloney telling Mr Murrell that other prison officers may be upset with Mr Murrell because of the proceedings and that they might inflict violence on Mr Murrell. In an affidavit filed in the proceeding, Mr Maloney denied making a threat to Mr Murrell. In his oral evidence he specifically denied saying to Mr Murrell that he might find himself with holes in his legs six months down the track. The allegation that Mr Maloney threatened to "kneecap" Mr Murrell is a very serious one. If made out it would destroy Mr Maloney's career. Although the employer bears an onus under s 298V of the Act the Court considers that it should be especially cautious not to decide matters simply by looking at onus when serious allegations are made with important consequences. The Court has a real doubt on the evidence presented before it about whether Mr Maloney made any direct threat to Mr Murrell. Consequently it does not consider that whatever Mr Maloney said to Mr Murrell about him being an applicant in this proceeding amounted to an overt act within the context of s 298K of the Act." 16 The appellants' submission is founded upon the proposition that his Honour has, in that passage of his reasons, accepted that a conversation occurred between Murrell and Maloney on 8 April 1999 in which Maloney said that physical violence may be visited upon Murrell. It is accepted that if his Honour did not reach such a conclusion, then this aspect of the appeal must fail. If his Honour did reach that conclusion, it is submitted that the Court must have rejected the affidavit of Maloney that he did not say to Murrell that he might find himself with holes in his legs. It then follows, it is contended, that there was conduct which attracted the operation of s 298K, and by reason of s 298V the respondent bore the onus of proving that the conduct had not been engaged in for a prohibited reason. As there was no evidence available to discharge that onus, once Maloney's evidence as to what he said or did not say had been rejected, it followed that the reverse onus had not been, or could not have been, discharged and the Court on appeal should therefore find that the contravention of s 298K had been made out in respect of that conduct. Alternatively, it is contended, the learned Judge at first instance failed to consider whether the making of the threat had been for a prohibited reason, having regard to the onus on the respondent under s 298V, and this aspect of the claim should be remitted to his Honourfor determination of that question. 17 The appellants also advanced some supplementary contentions criticising the reasons at first instance as insufficiently supporting the conclusion as to the alleged threat because they did not deal adequately with Murrell's evidence and because they did not examine at all the evidence of the witnesses John Dickson ("Dickson") or Ian Goulden ("Goulden") which confirmed the evidence of Murrell. If his Honour did not accept the evidence of Murrell as to the making of the threat, it was incumbent upon his Honour, on the appellant's submissions, to have addressed that evidence and to have explained why it was not accepted. 18 In Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 McHugh JA at 277-281 explained the basis of the obligation of a judicial officer to give reasons for a decision. His Honour said at 280:

"If an obligation to give reasons for a decision exists its discharge does not require lengthy or elaborate reasons [reference omitted]. But it is necessary that the essential ground or grounds upon which the decision rests should be articulated. In many cases the reasons for preferring one conclusion to another also need to be given … Moreover, I agree with the statement by Mahoney JA in Housing Commission of New South Wales v Tatanas Pastoral Co Pty Ltd (at 386) that the extent of the duty to give reasons is related "to the function to be served by the giving of reasons". Thus more elaborate reasons are required where legislation gives a right of appeal against a decision than where no appeal lies. In the first class of case, unless the basis of the decision is properly articulated, the losing party may be effectively deprived of his right of appeal." 19 Similar views were expressed by Gray J (with whom Fullagar and Tadgell JJ agreed) in Sun Alliance Insurance Ltd v Massoud [1988] VR 8 at 18-20. There was no issue between the parties that those cases set out the appropriate principles to be applied in relation to this contention of the appellants. 20 Finally, it emerged in the course of submissions that one complaint of the appellants was that his Honour had not considered whether the proper finding was that Maloney had not directly threatened Murrell but had passed on a threat made or likely to be made by others which the respondent would not, or would not be able to, prevent from being implemented. It was put that such conduct might itself constitute conduct capable of amounting to a contravention of s 298K. 21 We consider that the learned primary Judge was not satisfied that Maloney threatened that he, Maloney, would inflict physical violence on Murrell. The concluding words of his Honour's reasons set out above show that to have been the conclusion he reached. His Honour did not proceed to find precisely what, if anything, had been said by Maloney to Murrell on 8 April 1999; it was not necessary for him to do so. It was sufficient for his Honour to conclude, as he did, that he was not satisfied that Maloney had made a threat of physical violence to Murrell. That was the matter alleged against the respondent and it was not made out. We do not consider, therefore, that his Honour accepted that a conversation between Murrell and Maloney took place in which Maloney threatened himself to visit physical violence on Murrell. 22 The incidental observation of his Honour that the version of the conversation given by Murrell was consistent with Maloney telling Murrell that other prison officers may be upset with Murrell because of the proceedings and that they might inflict violence on Murrell is not a finding of fact. It is an observation about the effect of the evidence of Murrell. In our view, the observations of his Honour regarding the significance of the allegation and the onus cast by s 298V, do not indicate any misapprehension by his Honour of the task with which he was confronted. Having made those remarks, his Honour then clearly confronted the question whether Maloney had made any direct threat of physical violence to Murrell. That was an issue which needed to be resolved, before addressing whether such conduct had been for a prohibited purpose (the inquiry in which s 298V casts the onus on the respondent). His Honour had the benefit of seeing and hearing the evidence of Murrell and of Maloney. With that advantage, he was not satisfied that the alleged threat had been made by Maloney. Consequently, we do not consider that the first step in the principal contention of the appellants, namely that Murrell's version of the conversation on 8 April 1999 was accepted by the learned primary judge, is made out. As counsel for the appellants acknowledged, if this Court is not persuaded to take that step, the principal contention of the appellants must fail. 23 The evidence of Dickson and Goulden became admissible because of a suggestion of recent invention by Murrell of the making of the threat on 8 April 1999. That was because Murrell, through solicitors, had made detailed claims about the conduct of officers of the respondent following the commencement of these proceedings in mid March 1999. That letter was dated 14 May 1999. It did not make any reference to the alleged threat. The alleged threat was first raised in a subsequent letter from those solicitors dated 1 June 1999. To rebut that suggestion of recent invention, Dickson and Goulden gave evidence. Dickson is an official of the first appellant. Goulden is a prison officer. Dickson's evidence was to the effect that Murrell had reported (or complained) to Dickson of the making of an alleged threat on about 17 March 1999, just after these proceedings were commenced. That is before the conversation of 8 April 1999 which is the occasion of the alleged threat. Dickson told Murrell to keep a diary of his conversations. Goulden confirmed that by mid March 1999 Murrell was keeping such a diary and he then read in the diary a record of a conversation containing the threat. The evidence therefore is directed at an event or events which may have taken place before 8 April 1999. It does not directly confirm that Murrell complained on or soon after 8 April 1999 that Maloney had threatened him at about that time. 24 It was clearly open to his Honour in those circumstances to place little weight on that evidence. More importantly, however, his Honour did not reject Murrell's evidence about the terms of the conversation on 8 April 1999 because he was of the view that it was "recently invented" that is invented after the letter from his solicitors of 14 May 1999. His Honour's conclusion, having considered the evidence, was that he had real doubt whether any direct threat had been made by Maloney to Murrell. That conclusion reflected his Honour's consideration of the evidence, with the benefit of seeing and hearing both Murrell and Maloney give evidence. In CDJ v VAJ (1998) 157 ALR 686, Kirby J at 737-738 said:

"Every appellate judge knows that the reasons given for a decision can never express the entire range of matters which the decision-maker has taken into account. In matters of evaluation and discretion, this would be impossible to achieve and undesirable to attempt. Judicial reasons, while they must be adequate for the purposes of the exercise of any right to appeal, cannot possibly catalogue all of the subtle considerations that lie behind a judicial decision." 25 In our view, his Honour's reasons for not accepting that Maloney on 8 April 1999 made a threat to Murrell in the terms alleged were sufficient to explain that part of the reasons for the decision and to preserve to the appellants an effective right of appeal. 26 Nor do we consider that it was necessary, in the circumstances, for his Honour, in reaching that view, to refer to the evidence of Dickson and Goulden. It was evidence which, had his Honour formed a different view about the direct evidence, he may have dealt with in his reasons. But the approach of his Honour did not call for that express consideration in the circumstances. It was not necessary, for his Honour to have reached the conclusion which he did, to form any view about the reliability of that evidence. Those matters were of a supplementary or ancillary nature and in the circumstances were not critical to the determination of this aspect of the claim: cp Kiama Constructions Pty Ltd v Davey (1996) 40 NSWLR 639 per Meagher JA at 647-648. Accordingly, we are not satisfied that his Honour fell into error in failing to address that evidence in his reasons, or in the way his Honour addressed the conflicting evidence of Murrell and Maloney. 27 The final matter can also be shortly dealt with. It appears from the statement of claim, and from the submissions made to his Honour, that the allegation by the appellants was that Maloney had himself threatened physical violence to Murrell. His Honour reflected that basis of the claim in his description of Murrell's allegation as set out in his reasons. It was not for his Honour to speculate about whether some case might have been made out which was different from the case presented by the appellants. If Murrell had intended to assert that the conversation with Maloney of 8 April 1999 contained the threat or statement by Maloney that other prison officers might inflict physical violence upon Murrell by reason of his involvement in the proceedings and that the respondent would not, or would be unable to, protect him from that threat being carried out, that case should have been put to the learned Judge at first instance. 28 For these reasons this appeal should be allowed in part and the application should be remitted to the learned primary Judge to determine whether the respondent contravened s 298K, as alleged in par 42 of the statement of claim, by threatening to dismiss Murrell and Hutchins. The appeal should otherwise be dismissed. I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of this Honourable Court.

Associate: Dated: 8 June 2000 Counsel for the First, Second and Third Appellants: Mr H Borenstein with Ms R Doyle

Solicitor for the First, Second and Third Appellants: Gill Kane & Brophy

Counsel for the Respondent: Mr J Bourke

Solicitor for the Respondent: Corrs Chambers Westgarth

Date of Hearing: 17 May 2000

Date of Judgment: 8 June 2000

Workplace Relations Act 1996(Cth)

Public Sector Management Act 1992(Vic)

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Judgment (12 paragraphs)

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Legislation Cited (2)

Cases Cited (6)

Cited By (2)