Was there injury or prejudicial alteration of position in this case?
66 As explained previously, the nature of the particular employment is thus crucial. In Linehan what was critical in establishing whether any injury or prejudicial alteration had occurred was the nature of the terms of the employee's contract of employment. All the attributes of the employment position must be examined. It will primarily be by reference to the particulars of Holloway's employment that it must be determined whether or not any action taken by Adecco pursuant to the incitement etc would or could have injured that employment or altered Holloway's position in that employment to his prejudice. I did not have the benefit of Holloway's contract of employment, as the Advocate did not produce a copy of the signed employment agreement governing the terms of employees' engagements to or with Adecco. It is thus necessary to have regard to the evidence of witnesses as to the terms of Holloway's contract of employment. Routledge testified to the terms of employment of persons such as those in Holloway's position, although she said that she was not particularly familiar with any of the particular details of Holloway's own contract of employment.
67 Adecco is evidently an employment agency (it is evidently a constitutional corporation for the purpose of section 298G (1)(a)) which registers persons as available for work. It appears that at the relevant time about 98% of the registrants were 'casuals', and only the other 2% were 'permanent' employees of Adecco. At the time in question it appears that there were some 600 people registered with Adecco in the area for which Routledge was responsible, although only about 300 were employed, in the sense of contracted out to clients of Adecco, at any one time. Those seeking work on a casual basis would register by signing a standard form agreement with Adecco which provided that the company could send the casual to any site where Adecco could find work, although the employee could refuse the offer of work. The individual's rate of pay was not fixed by Adecco upon their registration but would vary according to the particular client and the nature of the work being undertaken for the client.
68 Holloway began working for Adecco in December 1996. When he registered he was, he said, willing or prepared to "do basically anything". Before being sent to the David's Fyshwick site towards the end of January 1997, he had worked at other sites to which Adecco was contracted to send employees, having been a storeman at the "Revlon site", a general labourer at the "Total Care site" for a very short period, and having also done some work as a driver for Adecco's client, TNT. The arrangement with David's was that after suitable staff had been registered, they would be required to undertake an induction course or a test that David's required the casuals to pass, whereafter they were placed in a 'pool' of casual employees able to work that site. There were "ten or twelve" other persons registered with and employed by Adecco who were trained for, and cleared by the induction process to work at, the warehouse. The system for these "ten or twelve" casuals was that, if wanting work, they would telephone the warehouse directly at 5.10 am on Monday and 6.10 am Tuesday to Friday, in order to find out whether there was suitable work for them on that day. Roger Beiser was the Account Manager at Adecco responsible for the David's account. He gave evidence that there may have been more people seeking work at David's than there was available work on any particular day. If suitable work was available, whoever called in first would be given work. It was only if work was not available at David's, and they still wished to obtain work, that these employees would then ring Adecco to ascertain whether there was any other suitable work available.
69 The respondents argued that by virtue of the particular circumstances of his employment, had Adecco removed Holloway from David's, there would have been no injury to him in his employment or alteration of his position to his prejudice. They said that there was also no acceptable evidence that by working anywhere other than David's, Holloway would have suffered any relevant loss or been injured or had his position prejudicially altered. It was said that I must take into account "the totality of the employment conditions" and that the evidence which "demonstrates that he was willing to work anywhere and had worked as a general hand, a driver, and as a storeman for Adecco". The submission was then that "if Holloway was able to earn a similar amount or more by working as a driver or in any other employment which Adecco could arrange for him…. it cannot possibly be said that Hearne's suggestion….could result in the necessary injury or alteration as required by section 298K". The respondents submitted that the terms of his employment show that the nature of Holloway's employment was itinerant, and that he was not guaranteed any work at all in his contract, nor any work at a particular rate, as both availability and renumeration depended on the client. Holloway himself did not give any evidence of any loss he might have suffered if he was not able to work at David's but only at other sites.
70 There was only indirect evidence of relative rates of pay for Adecco personnel at all the sites to which they could be sent, and for the types of work that Holloway was interested in and for which he was suited. Various of the Advocate's witnesses spoke to the favourable rates of pay available at David's compared to rates paid at other Adecco-serviced sites. This evidence was adduced with the object of showing how not being able to work at David's would inevitably have been comparatively injurious to Holloway, since other available sites paid lower hourly rates to casuals.
71 The enterprise agreement peculiar to the warehouse was determinative of the pay rates, although it appears that Adecco paid the casual storemen that it sent to David's "a couple of cents per hour more" than the hourly rate prescribed by the enterprise agreement. Weekly time sheets for Adecco employees who worked at David's were delivered to Adecco by David's, and Adecco then paid the employees on the basis of those time sheets. In argument the Advocate pointed to a body of oral and affidavit evidence of Adecco employees at supervisor or management level that suggested that being assigned to David's meant that Holloway was in a position to earn the highest rate of pay of any of the sites that Adecco serviced. For example, Beiser testified in his affidavit that David's had the highest rates of pay of Adecco's clients for storemen and packers in the ACT, so that "for the things that Daniel Holloway could do, he was getting the highest pay rate that he could get when he was working at David's". Routledge related in her affidavit in reply that if Holloway had been removed from David's, she would have tried to find him other work with another client of Adecco, but that the other work that Holloway "could possibly have been sent to at that time would have had a lower rate of pay than that which he was receiving at David's". Holloway himself testified that the primary reason that he was originally interested in the David's job was that it had "more hours and better pay, around $13 or $15 per hour, which is more than I was getting for other work I was then doing for [Adecco]". Other evidence was to similar effect.
72 The respondents objected to this evidence on the ground that it amounted only to hearsay. For example, English (who was then in charge of the warehouse) deposed in his affidavit on the subject of pay rates in a manner similar to Beiser, but could not upon cross examination give any better evidence than saying that he had "got the impression" during his time at David's that David's paid the most in that type of work in that area. In the final analysis, they said, the Court still does not have any direct evidence as to differing pay rates. The respondents argued that the effect of the short High Court analysis of the relevant section of the Act in Patrick Stevedores is that an "injury" in this context is something for which it is possible to actually compensate the victim, and that it follows that it is necessary to show something that the evidence did not permit.
73 However, the section is not only confined to "injury". It also extends to prejudicial "alteration of position," which is a somewhat more general notion. In my opinion, it is unnecessary to resolve the matter of differing pay rates if, as the Advocate contended, the diminution alone of Holloway's opportunities to obtain work, by excluding David's as an option, would have constituted an alteration of his position to his prejudice. If Adecco had acted upon Hearne's incitement, advice or encouragement, Holloway would not have been able to work at David's in the future. Differences in rates of pay at other sites aside, it was argued that this deprivation alone would have constituted an injury or at least a prejudicial alteration to his position. It was said that he would have one less opportunity for available work, and would have one less employer he could telephone in the morning, as a result of matters having nothing to do with the manner in which he carried out his work: see the passage from Squires at [47]. It was submitted that in the spirit of Squires, a decision since applied by other Courts considering these sections, the diminution of opportunity to obtain work is enough, in certain circumstances, to constitute prejudicial alteration of position under section 298K(1). Holloway would have been treated differently to previously and to other employees for a reason not only not connected with the manner in which he performed his duties, but for a presumptively prohibited reason. It was argued that this injury or alteration would have been more substantial and tangible to that the High Court was willing to accept in Patrick Stevedores, and is analogous to the prejudice found in Linehan.
74 From the available evidence it is reasonably clear that Holloway would have been restricted, to his disadvantage, in that he would have known that although he was otherwise eligible for work there, it would not have been open to him to telephone the David's site on any given morning in the hope that work was available. It was not that he used to phone the agency. He would telephone the warehouse itself. If someone seeks to have an employee removed from a worksite such that it would no longer be possible for him to work at the site, it seems to me that he will have been injured or suffered a prejudicial alteration to his position. The fact that he might attain similar or better work somewhere else, just as he might win the Lottery, or become very much worse off is in my view irrelevant to the statutory scheme. Once sufficient evidence of his position is led as to make it possible to ascertain what the possible effect on his position at the time would have been, it is not necessary to delve into the other possibilities that might have ensued.
75 There was a finite list of places Holloway could work for Adecco, and removing him from David's as a possible place would have had the very real effect that his opportunity of gaining work on any one day was diminished. This result cannot be sidestepped by pointing out that work at David's might not have been forthcoming at all, or that he might not have been one of the first callers lucky enough to obtain what work was available. He would have been denied the opportunity to work there which, as I understand the authorities, is enough to be considered an alteration to his employment to his prejudice. Holloway's "position" was that he was trained and on the list for David's, and although he would have remained in his employment with Adecco, a position that carried no guarantee of work, he would as a result of any exclusion from David's have had his chances of obtaining work reduced by reason, as the statutory presumption would hold, of his non-membership of the Union. He would have gone from a position of likely or possible work to a position where he no longer had the opportunity to access that work. Based on the principles of law arising from the cases, and taking Linehan as an analogy, I am satisfied from the evidence that Holloway had an expectation that, if work was available and he called in for it, in all likelihood that work would be his even if the expectation was not contract-based or guaranteed. This likelihood was no doubt the reason that Hearne and Jacobs sought to persuade him to join the Union, as otherwise his membership would have been of little moment to them. At least he had an expectation that he would not be excluded from obtaining work for reasons that did not have anything to do with the manner in which he had performed in his employment. As it happens, he eventually stayed at David's until June 1997, working for Adecco as a paid-up member of the Union, until, it appears, he had an accident which prevented him from continuing working.
76 The evidence is thus sufficient to establish prejudicial alteration in this case. Holloway would have less opportunity for any work at all than previously and than other employees. He would have been "less secure" in his position within Adecco. In contrast to BHPIO, where the Full Court did not feel it appropriate to inquire into possible future injury, since it found that no employees had been "singled out", Holloway would have been "singled out" for a presumptively prohibited reason. In further contrast to BHPIO where it was found that any injury would not have been as a result of a direct intentional act of the employer, anything that happened to Holloway would have been the result of the direct intentional removal of him from David's by Adecco, albeit as a result of his own election not to join the Union, a choice that is specifically protected by the Act.
77 It is true that whether any particular redeployment would have been financially injurious (cf Geraldton Port Authority) is not known, because no particular evidence was produced of alternatives or comparative pay rates etc. It is also true that there was in this case a degree of uncertainty of employment and a variation in the availability of work. Nor was there any contractual guarantee of work or indeed any written contract shown that could act as a "benchmark" to ascertain Holloway's position (cf again Geraldton Port Authority). However, looking at the facts as they are, I think that, consistent with authority, it can fairly be said that an overnight reduction in Holloway's opportunity for obtaining work would have been a prejudicial alteration to his position as an employee.
78 It might further support this conclusion to consider the analogy of a city bicycle courier who, relatively newly arrived in the city, is one day told by the radio controller or dispatcher, acting upon the incitement or advice of, say, a union of couriers to which he did not belong, that he may not again take calls for pick-ups and deliveries from the eastern side of the city. He may not have had any calls from the eastern side anyway, and it is possible that he might that very day have had a very profitable day on the western side of the city. However, were it not for the conduct of the dispatcher, he would have been in the "position" that he was in before, with all the normal opportunities for work. He might have in fact done better, but the opportunity for work was reduced. Looked at in the context of these sections, it must be said that his position would have been, as far as can be hypothesised, adversely altered to his prejudice: even if he had to fight with other couriers to get to the pick-up first once the call came out (in the much same way that Holloway would have to call David's), work would not be available to him if it was there, as a result of a group "singling him out" from couriers generally, and seeking to exclude him from work on the eastern side. This is precisely the type of situation that these legislative provisions are designed to remedy. In the present case, my impression was that Holloway might not have done better anywhere in the area, but it is his reduced opportunity that suffices.
79 In summing up, senior counsel for the respondents effectively conceded that:
It must be accepted if this [that is, the relocation] had happened Mr Holloway would have gone from having the possibility of working at David's, [to the situation where] he no longer had that possibility…putting aside any question of pay rates, Mr Holloway would have had his position altered to his prejudice. His opportunities of being provided with work by Adecco were diminished. That was indisputably to his prejudice.
The problem was, so it was asserted, that there was no evidence about what this prejudice would have been in real terms, that is "how much money he would have lost" had he been relocated. Counsel said that Holloway gave no evidence of any possible "real" loss or prejudice, which was true, and that such evidence was not sought from him, which was not quite true. Senior counsel for the Advocate did seek to find out whether Holloway would have been worse off in terms of rates of pay at other sites, but most of the evidence thereby adduced was indirect, or was even irrelevant hearsay. The respondents said that the lack of evidence suggests that the Advocate was purporting to present the matter as a type of 'strict liability' offence, because there is "no evidence whatsoever that not being able to go to David's would have had any effect on him at all. In fact, there may have been better paid jobs".
80 However, as I have endeavoured to explain, it is not only "compensable" injury that is covered, but also prejudicial alteration to the employee's position. There is sufficient evidence to find that in Holloway's circumstances as a casual employee of Adecco, cleared for David's work and by all appearances keen to take up that work (including the fact that he continued to work at David's, until injured, five or six months later), the removal of David's as a possibility, even if it paid the same as other possibilities, would have altered his previous position within Adecco to his prejudice. This conclusion may be arrived at from the available facts relating to his situation within Adecco, such as they are, without needing to resort to the indirect evidence of comparative pay rates.