Gavin v Svitzer Australia Pty Ltd [2025] FCA 1623

In the context of s 341(1)(c), the term "complaint" connotes an expression of discontent which seeks consideration, redress or relief from the matter about which the complainant is aggrieved: Cummins South Pacific at [13]. A complaint is more than a mere request for assistance and should state a particular grievance or finding of fault: Shea v TRUenergy at [579]-[581] per Dodds-Streeton J (cited with approval in Cummins South Pacific at [13]). Her Honour continued, at [626]-[627], by saying that it is unnecessary for the employee to identify expressly the communication as a complaint or grievance, or to use any particular form of words. Instead, what is required is a communication which, whatever its precise form, is reasonably understood in context as an expression of grievance and which seeks, whether or expressly or implicitly, that the recipient at least take notice of, and consider, it. The characterisation of a communication as a complaint is to be determined as a matter of substance, and not of form.

1. In PIA, Snaden J at [137] cited Dodds-Streeton J's observations in Shea v TRUenergy Services Pty Ltd (No 6) (2014) 314 ALR 346; [2014] FCA 271 at [29] in relation to the meaning of "complaint":

... in the context of s 341(1)(c)(ii) of the [FW] Act:

(a) a complaint is a communication which, whether expressly or implicitly, as a matter of substance, irrespective of the words used, conveys a grievance, a finding of fault or accusation;

(b) the grievance, finding of fault or accusation must be genuinely held or considered valid by the complainant;

(c) the grievance, finding of fault or accusation need not be substantiated, proved or ultimately established, but the exercise of the workplace right constituted by the making of the complaint must be in good faith and for a proper purpose; [and]

(d) the proper purpose of making a complaint is giving notification of the grievance, accusation or finding of fault so that it may be, at least, received and, where appropriate, investigated or redressed. If a grievance or accusation is communicated in order to achieve some extraneous purpose unrelated to its notification, investigation or redress, it is not a complaint made in good faith for a proper purpose and is not within the ambit of s 341(1)(c)(ii) ... "

1. An inquiry "involves an investigation or an examination made for the purposes of acquiring knowledge or information" and "includes a request for information or the posing of a question by an employee in relation to his or employment": Pigozzo v Mineral Resources Ltd [2022] FCA 1166 at [43] (Feutrill J).
2. The characterisation of a communication should not be overly artificial or technical; s 341(1)(c)(ii) is given, in the cases cited above, a reasonably (but not unlimited) broad interpretation.
3. The complaint or inquiry to be relied upon is subject to a subject matter requirement; that it be "in relation to" the person's employment. In Construction, Forestry, Mining & Energy Union v Pilbara Iron Company (Services) Pty Ltd (No 3) [2012] FCA 697, Katzmann J said at [61] that:

A relationship connotes a connection or association between two things. Phrases like "related to", "relating to" or "in relation to" are prima facie, at least, extremely wide.

1. The words "is able to" in s 341(1)(c)(ii) have been construed to mean that the right to make a complaint or inquiry is not at large, but must be underpinned by a legal right or entitlement, the source of which entitlement may include a contract of employment, award or legislation: Shea at [625]; Messenger at [149]; Construction, Forestry, Maritime, Mining and Energy Union v Quirk (2023) 300 FCR 170; [2023] FCAFC 163 at [324]-[330] (Katzmann J).

1. Under s 342(1) of the FW Act, an employer is taken to have taken adverse action against an employee if the employer:

(b) injures the employee in his or her employment; or

(c) alters the position of the employee to the employee's prejudice ...

1. An employee is "injured" in their employment if they suffer "injury of any compensable kind": Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (1998) 195 CLR 1; [1998] HCA 30 at [4] (Brennan CJ, McHugh, Gummow, Kirby, Hayne JJ).
2. An action which alters the employee's position to their detriment covers not only legal injury but "any adverse affection of, or deterioration in, the advantages enjoyed by the employee before the conduct in question": Patrick Stevedores at [4]. Accordingly prejudicial alteration "may occur even though the employee suffers no loss or infringement of a legal right", but the alteration must be "real and substantial rather than merely possible or hypothetical": Qantas Airways Ltd v Australian Licensed Aircraft Engineers Association (2012) 202 FCR 244; [2012] FCAFC 63 at [32] (Gray, North and Besanko JJ). The "employee, individually speaking, must be in a worse situation after the relevant conduct than before it and the deterioration must have been caused by the employer's conduct": Klein v Metropolitan Fire and Emergency Services Board (2012) 208 FCR 178; [2012] FCA 1402 at [86] (Gordon J).
3. Section 361 of the FW Act "establishes a rebuttable presumption that the adverse action was taken for the reason alleged, or with the intent alleged, if taking action for that reason or with that intent would constitute a contravention of Pt 3-1 of the Act" and reverses the onus onto the employer: Qantas Airways Ltd v Transport Workers' Union of Australia (2023) 278 CLR 571; [2023] HCA 27 at [63] (Gordon and Edelman JJ).
4. The principles of s 361 are settled and set out in Alam at [14], which was cited with approval by the Full Court in Serco Citizen Services Pty Ltd v Parsons (2025) 310 FCR 436; [2025] FCAFC 83 (Collier ACJ, Needham and Wheatley JJ) at [57]:

(a) in order to attract the application of s 361, an applicant should allege with sufficient particularity both the action said to constitute "adverse action" and the particular reason or particular intent with which it is said the action was taken: Short v Ambulance Victoria [2015] FCAFC 55; (2015) 249 IR 217 (Dowsett, Bromberg and Murphy JJ) at [55];

(b) the party making the allegation that adverse action was taken "because" of a particular circumstance must establish the existence of that circumstance as an objective fact: Tattsbet Ltd v Morrow [2015] FCAFC 62; (2015) 233 FCR 46 at [119]. That is, it is for the applicant to establish all the elements of the alleged contravention other than the reasons of the respondent for taking the adverse action: Australian Building and Construction Commissioner v Hall [2018] FCAFC 83; (2018) 261 FCR 347 (ABCC v Hall) at [100];

(c) an employer takes adverse action in contravention of s 340 if a proscribed reason is a "substantial and operative" reason for the action or if the reasons for the action include the proscribed reason: Bendigo v Barclay at [104] (Gummow and Hayne JJ);

(d) the discharge of the s 361 onus requires proof on the balance of probabilities and usually requires decision-makers to give direct evidence of their reasons for taking the adverse action: Bendigo v Barclay at [43]-[44];

(e) the determination of why an employer took adverse action against an employee requires an inquiry into the actual reason or reasons of the employer and is to be made in the light of all the circumstances established in the proceeding: Bendigo v Barclay at [41], [45] (French CJ and Crennan J); at [101] (Gummow and Hayne JJ); Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2014] HCA 41; (2014) 253 CLR 243 (CFMEU v BHP Coal) at [7] (French CJ and Kiefel J); Construction, Forestry, Mining and Energy Union v Anglo Coal (Dawson Services) Pty Ltd [2015] FCAFC 157; (2015) 238 FCR 273 (CFMEU v Anglo Coal) at [27]; ABCC v Hall at [19];

(f) while the evidence of the decision-maker as to the reasons for the taking of the adverse action may, if accepted by the Court, satisfy the s 361 onus, such evidence is not a necessary pre-condition: CFMEU v BHP Coal at [192]; Australian Red Cross Society v Queensland Nurses' Union of Employees [2019] FCAFC 215; (2019) 273 FCR 332 at [72];

(g) the Court's rejection of the evidence of the decision-maker as to the reasons for the adverse action will ordinarily be "a weighty consideration and often a determinative consideration" in the determination of whether the reason alleged by the applicant was a substantial and operative reason for the action (Cummins South Pacific Pty Ltd v Keenan [2020] FCAFC 204; (2020) 281 FCR 421 at [116]), but such a rejection does not relieve the Court from considering all the evidence probative of whether the reason asserted by the applicant has been negated: ibid; CFMEU v Anglo Coal at [27]; Australian Licenced Aircraft Engineers Association v International Aviation Service Assistance Pty Ltd [2011] FCAFC 333; (2011) 193 FCR 526 at [272]. When there is evidence of a broad range of facts and circumstances, which are not dependent on acceptance of the decision-maker's evidence about his or her asserted reason for the dismissal, such evidence must be taken into account in assessing whether the reasons asserted by an applicant were a substantial and operative reason for the action; ibid at [113]; TechnologyOne Ltd v Roohizadegan [2021] FCAFC 137; (2021) 309 IR 262 at [105]- [106];

(h) even if the reasons advanced by a respondent as the actual reasons for the decision are accepted, the absence of evidence that there were no additional reasons or that the actual reasons did not include the alleged proscribed reasons, may result in a failure to rebut the presumption: National Tertiary Education Union v Royal Melbourne Institute of Technology [2013] FCA 451; (2013) 234 IR 139 at [20]; PIA Mortgage Services Pty Ltd v King [2020] FCAFC 15; (2020) 274 FCR 225 at [154] (Snaden J);

(i) the decision-maker's knowledge of the circumstance asserted by an applicant to be the reason for the adverse action, and even its consideration, does not require a finding that the action was taken because of that circumstance: Bendigo v Barclay at [62]; Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (No 3) (2012) 228 IR 195 at [80] (Jessup J); Shea v TRUenergy Services Pty Ltd (No 6) [2014] FCA 271; (2014) 242 IR 1 at [777]. Nor does the fact that the adverse action has some association with a matter supporting a proscribed reason: CFMEU v BHP Coal at [20], [87]-[88]; Construction, Forestry, Mining and Energy Union v Endeavour Coal Pty Ltd [2015] FCAFC 76; (2015) 231 FCR 150 at [32], [47]-[48] (Jessup J); and

(j) adverse action taken against a person because of conduct resulting from the exercise of workplace rights may not offend the s 340(1) prohibition: CFMEU v BHP Coal; Endeavour Coal at [52] (Perram J).

1. In submissions specifically directed to analysis of the workplace rights, Mr Gavin's position was refined to identify the following as the workplace rights upon which he relies:

(a) Mr Gavin's 4 May email to Mr Sheehan rejecting the Operations and Strategic Projects Manager role and offering feedback on the job description, as a complaint or inquiry in relation to his employment pursuant to s 341(1)(c)(ii) of the FW Act;

(b) Mr Gavin's 19 May email expressing a preference to remain in the Port & Operations Manager role but indicating, as requested, amendments to the Operations and Strategic Projects Manager role that would make it acceptable to him, as a complaint or inquiry in relation to his employment pursuant to s 341(1)(c)(ii) of the FW Act; and

(c) Mr Gavin's contractual right to remain in his substantive position, and as such to reject offers of alternative positions, being (relevantly) an exercise of a right under a workplace law or instrument pursuant to s 341(1)(a) of the FW Act. (Note that the respondent objects to this as not being reflected in Mr Gavin's Amended Concise Statement, but the respondent said it was able to address the issue).

What was the legal right or entitlement for the purposes of s 341(1)(c)(ii)?

1. The applicant submitted that the legal right or entitlement underpinning the alleged complaints made in the 4 and 19 May emails was Mr Gavin's right to retain the existing terms of his employment contract, including his salary and position. It was submitted that the decision to restructure the Newcastle Port without a role for Mr Gavin was one which was made because of, or motivated by, his refusal to accept the proposed new position. The respondent submitted that the applicant did not have a right to continue in the role of Port and Operations Manager role indefinitely or otherwise to a new position. The applicant agreed that he did not have "an unfettered right to continue in his position indefinitely", but contended that Mr Gavin did have a right to reject the proposed future employment and to seek to continue with his existing employment (or the previous position as Port Manager, as raised as an option by Mr Sheehan).
2. Mr Rauf, for the respondent, raised the floodgates spectre of "any employee that said, 'Well, no I don't ...want the redundancy or redeployment, I want to stay in my position' would ipso facto be exercising a workplace right". This was not precisely how the matter was put by Mr Saunders, counsel for the applicant, who submitted that if a worker resisted a redundancy, and the decision-maker was "activated by the fact of that resistance", then it would indeed become a general protections case. It was submitted by the applicant that a worker has a right to refuse, say, voluntary redundancy, and rely on their employment contract to say that they wished to remain in their position. That would be an exercise of a workplace right and they would be entitled to remain in their position until proper termination had taken place. Most redundancies would of course be activated by a genuine lack of need for the role, and the mere resistance or exercise of a workplace right would not by itself transform the redundancy into a breach of the FW Act.

Was there a complaint or inquiry for the purposes of s 341(1)(c)(ii)?

1. The applicant submitted that despite the polite terms of the 4 May email, Mr Gavin's response to the new position under the Fourth Proposal was a "complaint or inquiry" about the new role, and that that he sought a "protection" or "vindication" of his existing rights to his position and salary, citing Messenger at [150], where Snaden J said:

I am bound in any event by what successive full courts have now made clear: in order that a complaint or inquiry made in relation to employment might qualify as the exercise of a workplace right, an employee must first demonstrate that it was made in the exercise of, or otherwise to protect or vindicate, some right or entitlement conferred upon them, whether instrumentally or otherwise. It is not sufficient that a complaint or inquiry is made simply because the employee feels (with good justification or otherwise) that he or she has something about which to complain or inquire.

1. The applicant relied in particular on his complaints expressed in the 4 May email where he stated:

I would also like to provide some feedback on the JD and the process that has occurred. While I appreciate the expanded scope of the position, I was not made aware of a significant decrease in the compensation package...

I believe that the compensation package should match or be higher to reward employees for taking on such a challenge.

1. Counsel for the applicant submitted that by these statements, Mr Gavin was making a complaint by wanting to provide feedback on the process and by "agitating a state of dissatisfaction with the money he has been offered". In further submissions provided after the hearing, the applicant submitted that Mr Gavin was also "complaining about being asked to accept a demotion...to 'accommodate another colleague's return'" (emphasis in original).
2. With respect to the 19 May email, the applicant submitted that that was "more in the inquiry line, in that...he's putting forward a proposal...an expression of negotiation as to one's terms and conditions".
3. The respondent rejected this characterisation of the two emails. The respondent submitted that Mr Gavin's emails of 4 and 19 May did not convey a grievance or accusation in that they were not made to protect or vindicate some right or entitlement. Rather, it was submitted, the 4 May email simply set out the applicant's reasons for declining the offer and the 19 May email was merely a negotiation of the terms and conditions of the new position. The respondent contended that, on the applicant's construction, any termination which occurred after consultation with the employee would constitute a breach of the general protection provisions.

Was a workplace right exercised "in relation to" Mr Gavin's employment?

1. It is not disputed that Mr Gavin was an employee, but the respondent takes the position that any workplace right was not exercised "in relation to his ... employment" (s 341(1)(c)(ii)). The respondent submitted that a complaint or inquiry made in relation to "prospective employment" cannot amount to a complaint or inquiry "in relation to" the person's employment for the purposes of s 341(1)(c)(ii).
2. The respondent submitted that the 4 and 19 May emails did not constitute a complaint or inquiry as they were made in relation to a new role. The respondent relied on several decisions from the Federal Circuit and Family Court of Australia on this point, including Kovacs v Citywide Service Solutions Pty Ltd [2024] FedCFamC2G, Jeavons v Entram Pty Ltd [2015] FCCA 3457 and most recently, Australasian Meat Industry Employees' Union v Meat Inspectors Pty Ltd [2025] FedCFamC2G 1128.
3. The applicant disputed the respondent's submission that a complaint or inquiry must relate to the employee's current terms and conditions of employment. Rather, the applicant submitted that the word "employment" for the purposes of the FW Act is not limited to the contractual employment terms, but encompasses the "employment relationship" (emphasis in original), citing NSW Trains v James [2022] FWCFB 55 and Visscher v Giudice (2009) 239 CLR 361; [2009] HCA 34.
4. The applicant argued that his alleged complaint made in the 4 May email is better understood as "proposed changes to existing employment which would, if they had occurred, have continued unbroken ... the point is that the employment relationship would have continued". In reply to this submission, the respondent argued that this construction would render the employment contract irrelevant. Svitzer submitted that Mr Gavin's rejection of the new role was anchored in the new proposal and accordingly no existing right or entitlement was enlivened.
5. In Kovacs, the applicant was employed in a governance role by the respondent. During a routine meeting with her manager, a promotion to a "more managerial role" was floated. At the meeting the applicant expressed her desire to work more in insurance, to increase her remuneration in accordance with increased responsibility, and for further resources to address new legislation. The applicant was asked to revise her current position description to bring it in line with her current responsibilities. A few weeks later, the applicant's employment was terminated by way of redundancy. Judge Mansini held at [80] that the applicant's discussion with her manager regarding higher remuneration was not an inquiry for the purposes of s 341(1)(c)(ii) given that it was a "hypothetical discussion about possible terms and conditions attaching to a new role that had not been created, offered or accepted", nor was it a complaint in relation to her current employment terms. Her Honour held that the applicant's statements in relation to working more in insurance and her request for further resources also did not constitute an "inquiry" under s 341(1)(c)(ii).
6. Similarly in Jeavons, Judge Barnes found that the applicant's inquiries about a bonus in the course of a business buy-out related to prospective employment (at [188]-[190]).
7. The applicant sought to distinguish the present case from Kovacs and Jeavons. The applicant submitted that the discussions in Kovacs were "at most, preliminary" and the remarks as to resourcing and increased renumeration were "in that context hypothetical". As for Jeavons, it was submitted that the inquiry was made in relation to employment with a new employer, which is distinguishable from what Mr Gavin characterised as his own situation which involved "negotiating changes to [his] terms and conditions with [his] existing employer".

1. Having considered the totality of the evidence and the submissions, my view is that the applicant was exercising a workplace right in the complaints and inquiries he made as his position in the restructure, and by his refusal of the new role.
2. I cannot accept the respondent's contention that the applicant was only complaining or making inquiries into future employment, and not in relation to his current terms and conditions of employment, as correct, either on a factual or a legal basis. The emails of 4 and 19 May were each sent by Mr Gavin on the express basis that he had a position at the Newcastle Port, most likely the traditional role of Port Manager without the operations aspect of the ECOC, if he did not accept the proposed new role. This is on the basis of the "change of heart" line which was provided to Mr Gavin, but not, initially, to the management team to whom it was forwarded.
3. He was also aware that all the iterations of the Newcastle Port restructure included him at a high level and that he had been asked to provide a job description for his future role, which can be characterised as the 19 May email being sent in the context of him making inquiries about his role with Svitzer; ie, his employment. Mr Gavin said in his affidavit that his "understanding as to the options available to me was that I would be able to remain employed in a Port Manager role if I chose to reject the offer of the Operations and Strategic Projects Manager position". The rejection of the new role, and the proposals as to new positions, were not a "unilateral act" (see Jeavons at [200]); they were part of an ongoing discussion about Mr Gavin's role at Svitzer and underpinned by the assumption between Mr Gavin and Mr Sheehan that he would continue to be employed. It is artificial in the extreme to discount the 4 May and 19 May emails as not having "a sufficient relationship with the employee's existing employment" (Jeavons at [200]).
4. I am able to distinguish, for the reasons articulated above by the applicant, both Kovacs (clarification about the existing nature of the applicant's role) and Jeavons (discussions about a sale of the applicant's business), although neither of those cases is binding on me. Mr Gavin was faced with a non-hypothetical risk of having his employment downgraded, both in seniority and remuneration, and understood - as did Svitzer - that he could not be removed merely because Ms Munro sought to be accommodated at a higher level than her previous role. He understood that he was not in danger of termination for unsatisfactory performance, as confirmed by Mr Sheehan at the meeting of 25 May 2023. He also understood that there was a possibility of a return to the position of Port Manager. None of the options included his current position as that was clearly redundant under every restructure proposal to which he had been party. There was nothing preliminary or hypothetical about the offer made to Mr Gavin. The complaints or inquiries were made in relation to his employment.
5. It seems to me that Mr Gavin was, in sending the 4 and 19 May emails, seeking to "protect or vindicate some right or entitlement conferred upon" him (see Messenger at [150]). That right or entitlement was his current level of seniority and remuneration. At the very least, the 4 May email included a complaint about, in effect, losing his position to another employee who was returning (and who, on all but the ultimate iteration of the restructure, reported to Mr Gavin). The 19 May email sought to protect his then current salary, position, and responsibilities, in the context of his existing contractual terms. He was "able to" make these complaints or inquiries by reason of his involvement in the restructuring process and the request by his employer via Mr Sheehan that he formulate a job description.
6. Having determined that Mr Gavin exercised a workplace right, the question is whether there was an adverse action taken against him. He was indeed dismissed, but by way of redundancy; his role was removed. The respondent does not dispute that the termination of his employment was an adverse action.
7. Accordingly, the onus now shifts to the respondent to demonstrate that the exercise of Mr Gavin's workplace rights was not an operative or substantial reason for the adverse action. This is a question of fact. I will deal first however with the s 341(1)(a) part of the applicant's argument before determining the reasons for the adverse action.

Is the employment contract a "workplace instrument" for the purposes of s 341(1)(a)?

1. Mr Gavin submitted that his refusal to accept a contract of employment for a new position and right to remain in his existing role of Port and Operations Manager was an exercise of a workplace right under s 341(1)(a) of the FW Act. He submitted that contracts of employment to the extent that they relate to "safety net contractual entitlements" are recognised by the FW Act (see s 542). "Safety net contractual entitlements" are defined in s 12(a) of the FW Act to mean, relevantly,

an entitlement under a contract between an employee and an employer that relates to any of the subject matters described in:

(a) subsection 61(2) (which deals with the National Employment Standards); or

(b) subsection 139(1) (which deals with modern awards).

1. The subject matters described in ss 61(2) and 139(1) include wages, classifications, flexible working arrangements and leave.
2. A "workplace instrument" is defined at the relevant time under s 12(a) as an instrument that:

(a) is made under, or recognised by, a workplace law; and

1. Section 542 of the FW Act provides an entitlement to enforce safety net contractual entitlements:

(1) For the purposes of this Part, a safety net contractual entitlement of a national system employer or a national system employee, as in force from time to time, also has effect as an entitlement of the employer or employee under this Act.

(2) The entitlement has effect under this Act subject to any modifications, by a law of the Commonwealth (including this Act or a fair work instrument), a State or a Territory, of the safety net contractual entitlement.

1. There was some significant dispute about whether a "safety net contractual entitlement" was relevantly, when exercised, a workplace right. The applicant took me through a relatively recent line of cases commencing with Martens v Indigenous Land Corporation [2017] FCCA 896 at [20]-[25] (Judge Jarrett), where it was considered that there was a workplace right exercisable by the applicant arising from the ability to enforce those entitlements. Accepting as the applicant does that the argument made here is slightly different, it was submitted that "the issue does not therefore appear to be settled" (see O'Brien v Caboolture Aero Club Inc [2024] FCA 392 (Meagher J) at [42]). The issue in O'Brien was whether the applicant could amend his Statement of Claim to include workplace rights based upon safety net contractual entitlements, not a determination of the issue itself.
2. On the other hand, the respondent's submissions summarised the position as being:

... in Barnett v Territory Insurance Office [2011] FCA 968, Mansfield J held that a contract of employment was not a "workplace instrument" under s.341(1) of the FW Act. Mansfield J provided a number of reasons for this, including that:

(a) A contract of employment at common law underlines every employment relationship to which the FW Act applies, and so it was unlikely that the concept of recognition by a "workplace law" was intended to refer to the contract itself;

(b) The concept of recognition by a workplace law in the definition of "workplace instrument" was intended to refer to "instruments which are given particular "legal effect" or "legal life" (terms used by Barker J in the ALAEA case in the passage quoted above) by a statutory enactment"; and

(c) It would have been easy for parliament to have indicated that section 340(1)(a) includes a right under a contract of employment, but it does not.

The position in Barnett that a contract of employment was not a "workplace instrument" was cited with approval in Construction, Forestry, Maritime, Mining and Energy Union v BM Alliance Coal Operations Pty Ltd (No 3) [2022] FCA 1345 [(CFMEU)] at [40]. There is otherwise no authority to support that contracts of employment, beyond any provisions dealing with safety net contractual entitlements, can be workplace instruments.

1. While Collier J in CFMEU did cite the reasoning of Mansfield J in Barnett, her Honour was determining a different point - not whether an employee under a contract of employment was also able to enforce safety net contractual entitlements, but whether a "workplace instrument" was one which needed, to fall within that definition, to be one "directly made or promulgated by 'some authority or agency'" (at [44]). The learned authors of General Protections under the Fair Work Act (Donaghey T and Goodwin E, LexisNexis Butterworths, 2019) cite Barnett as authority for the proposition that a "common law contract of employment" will not qualify as a "workplace instrument".
2. The respondent submitted that safety net contractual entitlements refer to "entitlements" that relate to any of the subject matters in ss 61(2) and 139(1) of the FW Act and there is nothing in these provisions to support the construction that an employment contract is a workplace instrument. The applicant responded that "there's nothing inconsistent with the scheme of the act of protecting someone's right to complain about their contractual wages, as opposed to their award wages".
3. The argument that the employment contract is a "workplace instrument" was developed by reference to s 139, "Terms that may be included in modern awards - general". The applicant relied on various subsections of s 139 which set out what a modern award may encompass; it does not, in my view, incorporate those matters into the contract of employment per se to render the contract of employment a "workplace instrument".
4. I agree with the expressions of Collier J in CFMEU and Mansfield J in Barnett that a contract of employment between parties, while it may deal with issues which are included in the FW Act as "safety net contractual entitlements", does not thereby become a "workplace instrument" in the sense used by s 542 of the FW Act. That section provides that the safety net contractual entitlement "has effect as an entitlement of the employer or employee" - it does not transform a contract between two private parties into a "workplace instrument", because it is not "made under, or recognised by" a workplace law. While workplace laws do in a sense "recognise" private employment contracts, the context of the various sections relied on by the applicant do not elevate the employment contract in the way contended for.
5. Accordingly, while as noted above it is not strictly necessary to determine this issue, I find that the contract was not a "workplace instrument" and Mr Gavin is unable to avail himself of the consequences that would flow if it were.

Did Svitzer's actions, together or separately, constitute adverse action within the meaning of s 342 of the FW Act?

1. Mr Gavin alleges that Svitzer engaged in the following adverse actions:

(a) proceeding with the planned restructure of the Newcastle Port insofar as the position of Port and Operations Manager, being Mr Gavin's role, would be made redundant;

(b) not proceeding with the new Operations and Strategic Projects Manager role;

(c) not redeploying Mr Gavin into the Port Manager role;

(d) not otherwise redeploying Mr Gavin into another role; and

(e) terminating Mr Gavin's employment.

1. The applicant submitted that the respondent's decision to make the Port and Operations Manager role redundant and not to redeploy him injured and prejudiced the applicant in that it "directly removed his existing expectation of and entitlement to ongoing employment".
2. The respondent submitted that its actions of not proceeding with the new Operations and Strategic Projects Manager role and not redeploying the applicant did not amount to adverse actions as they did not involve any injury or prejudicial alteration of the applicant's position, given that he had rejected the role and therefore did not have any entitlements under that proposed role. The respondent submitted that in substance, there is just one adverse action - "the termination of Mr Gavin's employment on the ground of redundancy".
3. It seems to me that the termination of Mr Gavin's role - whether on the ground of redundancy or not - is indubitably an adverse action. The failure to redeploy Mr Gavin, either into his old role of Port Manager or an Operations role at his then current salary, seems to me also to be an adverse action, but it is not necessary to decide, given my findings below on the substantial and operative reasons for Mr Gavin's redundancy.

1. Before considering the substantial and operative reasons for Mr Gavn's dismissal, I need to determine some factual disputes. These were:

(a) the stage of the process by which the enterprise bargaining process had reached by early May 2023;

(b) the timing and reasons for Ms Faraj making the decision to dismiss Mr Gavin on the grounds of his former position being redundant; and

(c) whether Mr Gavin's family responsibilities were a factor in his dismissal.

1. In determining the factual disputes in this matter, I took account of the submissions on credit, the way in which the documentary evidence intersected with the oral evidence, and my observations of the witnesses' demeanour.
2. I found Mr Gavin to be a believable witness, and his recollection generally accorded with the available documents. While I did not accept his position on some points (for example, Ms Faraj indicating to the FLL conference that the EA was close to receiving agreement, and elements of the "family responsibilities" claim), I generally accept him a witness of truth. The events of May 2023 were events which were significant for him, and I do not consider that he was actively trying to mislead the Court where his recollections did not accord with the corroborating evidence. Memories may differ and aspects which are important to people may take higher prominence than they did at the relevant time.
3. Ms Faraj, as the decision maker, sought to put a case of a thoughtful consideration of the issues relating to the Newcastle Port restructure and the need for EA implementation, and a weighing of the impact of a strategic projects position being created at such a time. As set out below, I do not accept her evidence on those two crucial points. The contemporary documentation does not support her version, and taking into account the principles enunciated by Abraham J in Al Muderis v Nine Network Australia Pty Limited (Trial Judgment) [2025] FCA 909, I do not find an "actual persuasion" (Watson v Foxman [1995] NSWCA 497; (1995) 49 NSWLR 315 at 318-9 (McLelland CJ in Eq)) that the decision-making process described by Ms Faraj took place. Justice Abraham said (at [154]):

The applicant submitted that fact-finding should be based, as much as possible, on "contemporary materials, objectively established facts and the apparent logic of events": Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 at [31]. Contemporary documents are usually the most reliable source of evidence as to what occurred and are usually a good reference point for assessing the reliability of witness testimony: ET-China.com International Holdings Ltd v Cheung [2021] NSWCA 24 at [25]. While the evidence of witnesses should not be disregarded, greater weight is usually accorded to contemporaneous documentary evidence, citing Bathurst Regional Council v Local Government Financial Services Pty Ltd (No 5) [2012] FCA 1200 (Bathurst) at [1247]-[1248]; Hughes v St Barbara Mines Ltd (No 4) [2010] WASC 160 at [157]; Volonakis v Erceg [2019] NSWSC 1875 (Volonakis) at [150]; Sampson in his Capacity as Trustee for the Bankrupt Estate of Tannous v Tannous [2022] FCA 1427 (Sampson v Tannous) at [61].

1. Ms Faraj's precise recollection of some discussions, and complete lack of recall of others, does not reassure me that her memory was being given accurately. For example, she claimed no memory of approving the various port management restructure options, including the First Proposal (see [23] above), and the Fourth Proposal (see [41] above), even when shown her emails (although she accepted that she had written those emails). I take the view that she disavowed recollection of these approvals so as to bolster her version of her consideration of the EA implementation process and its effect on Mr Gavin's employment. I am disinclined to accept her evidence as to her motivations and reasons unless corroborated.
2. Mr Noes presented as a witness who was trying to be helpful in providing his evidence to the Court. His memory of various issues was not perfect but he sought to provide his best recollections. He often gave long, non-specific answers to questions, but this was more his conversational habit rather than an attempt to avoid being truthful. I accept his recollections in particular of his two meetings on 22 May 2023 with, first, Ms Faraj and then around the middle of the day with Ms Faraj and Mr Sheehan.
3. Each of Ms Lacey and Mr Sheehan occasionally seemed to give evidence which was more helpful for Svitzer than the documents suggested, but generally I found them to be witnesses of truth, seeking to give their best recollections.
4. Mrs Kirdar True was a most impressive witness, giving her evidence openly and carefully, and not seeking to augment her memory. I accept her account, although her evidence was not determinative of the main issues.

Where was the enterprise bargaining agreement in May 2023?

1. This issue is important because it feeds into the next issue; Ms Faraj's state of mind when considering implementation of the EA and the impact of that aspect on her decision as to Mr Gavin's role with Svitzer.
2. There was significant evidence that both parties were under pressure to reach an agreement in early 2023, given that Commissioner Riordan had warned the parties that he would not be entertaining any further bargaining sessions, and that a possible consequence would be subject to a declaration under new intractable bargaining provisions which were being introduced in the FW Act. Ms Faraj regularly communicated with her frontline managers as to the progress of the bargaining. By mid-April, the bargaining process had advanced enough that Svitzer was prepared to, and did, withdraw its application to terminate the 2016 EA. In return, the parties agreed that the unions would not take industrial action until 31 May 2023.
3. As noted above, there was a two-day bargaining session on 10 and 11 May, which resulted in the in-principle agreement.
4. On 11 May 2023, Ms Faraj sent an email to various members of her team attaching the draft agreement noting that the unions had until 19 May 2023 to "confirm all wording". She noted that Svitzer would work to "finalise the voting pack in the meantime including the explanatory document". However, the unions did not return the agreement by the deadline of 19 May 2023, and that evening, at 5.11 pm, the unions emailed the Associate to Commissioner Riordan, copying in Ms Faraj and Mr Noes, noting that:

We write regarding the draft EA provided by Svitzer on 11 May 2023 at 19.36hrs. The unions had intended to have a response and are 3/4 to completing this task. There were more corrections than anticipated and we should a complete list of issues with the draft by Monday afternoon, 22/5/2023.

1. The applicant contended that, given that union representatives were not agents for their members, and a vote was required, no certainty could be drawn, even from the union representatives' consent to the final draft.
2. By the time of the early morning meeting between Ms Faraj and Mr Noes on 22 May 2023, the unions had not yet returned the agreement. That is reflected in the evidence that Ms Faraj and Mr Noes were wondering "what [the unions are] going to put back" to Svitzer.
3. On 22 May 2023, at 3.25 pm, the unions wrote to Ms Faraj, Mr Noes and the Commissioner noting that "there are some changes that were made after the FWC conference on 11 May 2023 ... a review of the attached should be done jointly and we suggest a further drafting meeting". On 24 May 2023 Ms Faraj emailed the drafting group noting that "[s]ome of the requested drafting changes are to those who we have already spent a significant amount of time drafting together on the screen with the assistance of Commissioner Riordan and all agreed on the final words" and the unions responded by expressing "consternation at the 'drafting' exercise now being an 'offer and acceptance' process".
4. On 24 May 2023, Commissioner Riordan responded and refused a further meeting and suggested a "drafting committee" be established so that it could be ensured that the Agreement was "crystal clear and in the King's English". There was significant correspondence and work during May 2023 trying to get agreement on the EA and the matter out to a vote, which process was formally commenced on 31 May 2023.
5. Ms Faraj says that she started thinking about implementation of the EA "in the days following 11 May 2023", on the basis that she had an in-principle agreement with the unions and the Fair Work Commission had indicated that it would not entertain any further bargaining sessions. She said that she was contemplating the support needed for successful implementation once the enterprise agreement was finalised, and the concerns raised by the port managers at the FLL conference as to management of workload (which are set out in [28] above).
6. Ms Faraj's evidence was that from around 11 May 2023 her view was that an agreement was likely to be reached, and she was not concerned about the negotiations until 24 May, when the agreement came back with more substantive changes rather than mere drafting issues. This seems to be a position grounded in the fact that the agreement was considered by Svitzer to be fairly well cemented after the two-day bargaining process; however, the weight of the evidence (including the SOAF agreed fact as to Svitzer's planning having commenced in "around March 2023") indicates that the process turned from possible to probable around March or April 2023 when Svitzer withdrew its application to terminate the 2016 EA. I do not accept that Ms Faraj actively turned her mind to EA implementation planning as a separate and distinct process from around 11 May 2023. No documents support the contention that Ms Faraj's mind focused in on implementation in any specific way during this time. In fact, she does not mention to her team, until an email of 23 May 2023 at 12.37 pm, any plans to start implementation of the EA. That email (sent, inter alia, to Ms Lacey, Ms Yabsley, and Ms Tiedeman) reads:

We need to start focusing on implementation starting this week, let's discuss on our call today. I anticipate the EA goes out to a vote on Monday next week at the latest

1. This email was sent after her discussions with Mr Noes and Mr Sheehan in which the decision to dismiss Mr Gavin was taken, and it appears, from the suggestion that the 1 pm call was to be focused on implementation, that the two matters were intertwined. Her conviction as to the imminence of a vote is not corroborated by the timeframe; on 24 May 2023 it had become clear that there was an issue with the unions accepting the drafting of the agreement, and the matter was even escalated to Commissioner Riordan once more on 26 May 2023. The Commissioner then told her that his recommendation was "ready to go", before the recommendation was issued on 31 May 2023.

When, and for what reason, did Ms Faraj determine to dismiss Mr Gavin?

1. I do not accept Ms Faraj's evidence that the decision to make Mr Gavin redundant was reached by way of a process of reflection over a period of weeks, which culminated in her communicating a decision to Mr Noes at the early-morning meeting of 22 May 2023. This is for a number of reasons.
2. Firstly, and importantly, there are no documents which reflect this decision in the period leading up to it. And, tellingly, the documents that do exist do not reflect that timeline. I have set out above Ms Faraj's responses to Mr Gavin's communications as to his role, in terms which were identified by the applicant in submissions as "hostile". Her expressions of annoyance that Mr Gavin had not been, in effect, sufficiently excited about the new role, speaks to that as being her primary state of mind. She does not mention that she has been considering that there would be no role for strategic projects in any of the emails in which she refers to Mr Gavin's declining the offer of the new role, or his proposals for a new role.
3. Secondly, Mr Noes and Mr Sheehan's evidence tend to suggest that the decision to move from the Fourth Proposal - some six months in the planning - was made at around 12.30 pm on 22 May 2023. I have set out above the version Ms Faraj gave of her discussion with Mr Sheehan on that day, which was in terms of a "decision" she had made (see [79] above). Mr Noes and Mr Sheehan do not put it in those terms. Each of those emails noted her annoyance at Mr Gavin's reaction to the new role and his proposed job descriptions, prior to the discussion as to there being no need for the new role owing to the need to plan for implementation for the EA. However, as I have found, the planning for the EA had been on foot in a general way for some time, during which time Ms Faraj had been kept in the loop as to the proposals for Mr Gavin's roles in the various Newcastle Port restructures, and had given her approval for them.
4. Thirdly, Ms Faraj's decision to jettison the planned restructure which had taken many months of planning and had already been partly implemented makes no sense unless it was, in effect, a cover for Mr Gavin's dismissal. The final version of the restructure took the form of the removal of Mr Gavin and his replacement with Mr Sheehan. Ms Faraj gave evidence that no role of Operations and Strategic Projects Manager had been pursued, and "Svitzer has not created such a role or recruited any person into such a role or any other role with similar duties as were initially considered for that role". That does not, of itself, indicate that Mr Gavin was, in truth, dismissed for redundancy. There was no consultation with Newcastle Port management, and it was clearly a significant change in direction, at a time when the unions had not confirmed, and indeed were somewhat retreating from, the in-principle agreement with Svitzer.
5. Finally, it seems that Ms Faraj had a negative view of Mr Gavin which spilled over at times to somewhat churlish and dismissive comments and a view that he was not a valuable employee. There are occasional references to Mr Gavin's attitude (Ms Lacey's email to Ms Faraj about him and being "negative", and needing to "check back in", and Mr Sheehan's recollection set out at [38] above of Mr Gavin's reaction to Ms Munro being given Lines and Towage as Port Manager at the 17 April meeting) but there are other, more frequent, references to his being an effective employee who brought significant value to the Newcastle Port. Mrs Kirdar True gave evidence in cross-examination as to Mr Gavin's work in driving improvements in crew engagement and improving operational efficiency in his role as Newcastle Port Manager. She agreed that change management was one of his skills. Mr Sheehan regarded his refusal of the new role as not being an issue because it was the first step in a negotiation, and was prepared to work with him to find a role for him until Ms Faraj indicated that the new role would not be offered to him. Up until the decision to split the Port Manager and Operations role and to appoint Ms Munro to the Port Manager position, Mr Gavin had consistently been at the top of the management tree in all of the restructure iterations.
6. Ms Faraj gave evidence in cross-examination that she was under the impression that Mr Gavin wanted to leave the role of Port Manager, and "that's why Ms Munro was being offered the job". There is some evidence that Mr Gavin was unhappy with his role. In early February 2023, Mr Gavin left a draft resignation email in relation to his ECOC duties on the desk of Ms Lacey. He told her that he was going to send it to Mr Sheehan. After discussions with Ms Lacey, the draft email was not sent, and Mr Gavin continued with his role.
7. However, the contention that Mr Gavin's unhappiness was the reason Ms Munro would be promoted to Port Manager is not reflected in the evidence. The concern was more that as Ms Munro had been acting as Port Manager in Port Kembla, coming back in her substantive role would not be satisfactory to her. For example, at page 8 of the Fourth Proposal, the reason for her appointment to Port Manager is given as:

Lauren Munro has been acting as Port Manager in Port Kembla on a maternity leave secondment since May 2022. Laurens performance in this role has been outstanding and as a result she has been identified as a key talent to promote into a Port Manager role.

Due to Laurens experience in Newcastle, it is proposed to direct appoint her to the Newcastle Port Manager position, effective 17 July 2023. This aligns with Laurens current secondment end date.

1. Ms Faraj said that despite her surprise about the extent of Mr Gavin's request in his rewritten job description, and what she saw as its misalignment with the role, she "absolutely" did not take that into account in her decision about not pursing the Operations and Strategic Projects Manager role. She said that she understood that she could not sack Mr Gavin to give Ms Munro his role, nor could she unilaterally reduce his pay or force him to take a different role. She understood that there was a need for negotiation. I do not accept her evidence that the refusal of the role played no part in her decision. The timing and her irritation about Mr Gavin's "attitude" speak otherwise.
2. Ms Faraj said that the decision to make Mr Gavin redundant had been made by her after 11 May and by 21 May 2023, and that she had come to that view independently, without a business case, in the context of not wishing to overload management with new projects during the time of the EA implementation. She said that after making the decision, she did not turn her mind to "what that would involve" in relation to the operations duties that had been undertaken by Mr Gavin. She accepted that she did not "turn her mind at all to what the flow-on consequences for [her] decision for Newcastle Port would involve ... in that level of detail". She agreed that she made the decision "without considering any aspect of the Newcastle Port except [as] part of the new proposed role".
3. Ms Lacey gave evidence that, when designing the Fourth Proposal, the only reason Mr Gavin's role of Port and Operations Manager role was redundant was because the existing duties of that role had been re-allocated to the two new roles of Port Manager, and Operations and Strategic Projects Manager, and the "redundancy...depend[ed] on the existence of both new roles".
4. Importantly, Ms Faraj did not speak to anyone prior to making the decision, although she said she "needed to tell the GM [Mr Sheehan] that first, and I didn't have an opportunity to tell him before the 22nd".
5. This explanation does not hold up. Her reaction to Mr Gavin's position description was not "hang on, I have determined that there is no scope for a strategic projects role in Newcastle", but clear irritation as to his lack of excitement "or what he will offer in return for all this extra entitlement". Ms Faraj was unable to give a clear explanation of what the "wrong reasons" she referred to in her email of 4 May 2023 were. I infer, from the context of that email and the lack of any suggestion of what was "wrong" with his reasons, that this reference was to Mr Gavin's wish to stay at his current job level and remuneration. Ms Faraj said that she did not have the opportunity to talk to Mr Sheehan about her decision until 22 May 2023, but there would have been no reason, knowing that Mr Gavin was working on a revised position description, not to let Mr Sheehan know that that was a futile process, even if by telephone or Microsoft Teams. Mr Sheehan "travelling" the previous week is an insufficient explanation for not calling off the position description writing process, and not informing him until late morning of 22 May 2023 that she had determined that there was no strategy role required. The lack of notification is consistent with no decision having been reached by Ms Faraj before that day.
6. Ms Faraj denied that she had taken into account Mr Gavin's attitude, and his expressed desire to stay in the Port and Operations Manager role, and said that "the decision not to create that role was more about it's not the right time to create it, because the focus should be on the implementation of the EA and the support". Despite Mr Sheehan being on board with Mr Gavin's second option, she said that her response was "that is no longer an option, we cannot be investing in this role".
7. It is not credible that, had she already determined, prior to 22 May 2023, that the role would be redundant, that her initial reaction would have been "he is not excited enough for the opportunity". It is more consistent with the conversations Ms Faraj had on 22 May in the later meeting with Mr Noes and Mr Sheehan that the decision was made on 22 May, after being forwarded Mr Gavin's email, in the context of her view that Mr Gavin had a negative attitude, and was not offering enough to the company in his reviewed position description. There is nothing to indicate that the decision was made in the context of Ms Faraj's careful consideration of the implementation aspects of the new EA; instead, it was a snap decision which reversed months of careful planning in relation to the Newcastle Port restructure.
8. Ms Faraj's explanation is not consistent with the surrounding documentation, the thoughtful planning of the new port structure, the way in which Ms Faraj expressed her annoyance with Mr Gavin immediately before communicating to Mr Sheehan that there would be a change of path, and the lack of consultation with any other person, including Mr Gavin, before making him redundant. It is an available inference that Ms Faraj was unaware of Mr Sheehan's reassurance that the old Port Manager role was an option, which was not part of the communication to her when sent in early May. But it may not have made any difference, because, taking all of the surrounding circumstances into account, I cannot accept that the decision to terminate Mr Gavin was a legitimate assessment of redundancy on the basis of the need to implement the EA in Newcastle Port at the expense of his role.

Were Mr Gavin's family responsibilities a factor in his dismissal?

1. Ms Faraj said that she did not take into account Mr Gavin's family circumstances, because she was not aware of his personal circumstances. There is no evidence that Ms Faraj was in fact aware of his family circumstances, except for Mr Gavin's mentioning that the "the scope of the position ... does not suit my family's circumstances" in the 4 May email (see [52] above).
2. This email appears to be the only part of the written record where Mr Gavin mentions his family situation, although he said (and I accept) that he had discussed his son's swimming career and its impact on his working hours with Mr Sheehan from time to time. Mr Gavin's evidence was that he had discussed his son's swimming commitments to Mr Sheehan during conversations they had on 17 April 2023 and 24 May 2023. Mr Gavin contends that the family responsibilities were given as part of the reasons why his role was being made redundant. Mr Gavin said that Mr Sheehan expressly said the words "family commitments" at that meeting.
3. I do not accept that Mr Gavin's family commitments or responsibilities were a reason for the dismissal. I accept that his lack of willingness to travel was one of those express reasons, as reflected in both the script for the meeting and Ms Lacey's notes that the role "required travel to all ports" (see [92] above).
4. Mr Gavin's notes of the meeting with Mr Sheehan record:

Dylan then advised that the role of Operations and Strategic Projects Manager for NSW as verbally agreed, now needs to be a national role. He stated as I had spoken to him about my preference not to travel nationally all the time due to family commitments, there are no alternate roles to which I can be redeployed to.

1. Mr Gavin was cross-examined on whether the travel requirements were said in relation to his dismissal, or whether they were said in relation to there being no alternative roles. His notes of the meeting appear to indicate that they were said in the latter context.
2. It seems to me, from all the evidence, that while Mr Gavin's lack of desire to travel was given by Mr Sheehan as a reason for the lack of suitability for a national role, and that may have been "code" for his family responsibilities, the real reason for the dismissal was Ms Faraj's snap decision on the morning of 22 May 2023 that she did not wish to offer him a role with Svitzer going forward. She was not aware of Mr Gavin's family responsibilities. Accordingly, I am of the view that the family responsibilities issue did not play a role in Mr Gavin's termination.

Did the substantial and operative reasons for Svitzer's decision to terminate Mr Gavin's employment, include Mr Gavin's exercise of a workplace right or his family responsibilities?

1. Svitzer must demonstrate that Mr Gavin's exercise of workplace rights was not a substantial and operative reason for Svitzer taking the adverse action. Disbelief of a decision-maker's evidence about the reason or reasons for taking the adverse action is ordinarily "a weighty consideration and often a determinative consideration" in determining whether the reason alleged by the applicant was a substantial and operative reason for the action: Cummins South Pacific Pty Ltd v Keenan (2020) 281 FCR 421; [2020] FCAFC 204 at [116] Bromberg J). However, this does not "relieve [the] court of the need to make all of the necessary inquiries and consider all of the evidence probative of whether the reason asserted has been negated by that evidence": Cummins at [116].
2. In Serpanos v Commonwealth of Australia [2022] FCA 1226, Snaden J stated at [123] that in determining the reasons for the conduct alleged to be adverse action,

the court must interrogate not merely the state or states of mind of the person or people who engaged in it; but also that of others whose contribution to that conduct rose beyond some threshold level. That threshold level has been described as "indispensable" (Kodak), "material" (Clermont Coal, Qantas) and "'significant', 'plainly important', 'major', 'substantial' or 'essential'" (Wong).

1. The respondent does not need to "prove that the reasons for which it [committed the conduct] were procedurally or substantively fair": at [124]. Snaden J observed at [125]:

That is an inquiry in two parts: first, were the nominated reasons matters of opinion or belief that formed in the mind of the respondent (or, in the case of bodies corporate, those of its relevant human agents); and, second, did they positively inspire the respondent then to engage in the relevant conduct? If both questions are answered in the affirmative (and if there be no other reasons for which the relevant conduct was engaged in), it is irrelevant that the respondent's reasons might be impugned as unfair or illogical or otherwise liable to criticism. A claim under Pt 3-1 of the FW Act "... is not a broad inquiry as to whether the applicant has been subjected to a procedurally or substantively unfair outcome": Ermel v Duluxgroup (Australia) Pty Ltd (No 2) [2015] FCA 17, [48] (Bromberg J).

1. The applicant submitted that the purported reasons provided by Ms Faraj for terminating Mr Gavin's employment cannot be reconciled with the documentary evidence, her immediate reactions to Mr Gavin's conduct, and the decision itself in contrast with the comparatively considered and documented processes for restructure conducted in the past. The respondent submitted that the timing and lack of apparent discussion with Mr Gavin was a matter of procedural fairness, which is not relevant to the test under s 361: Serpanos at [124]-[125]. However, having considered all of the evidence as outlined in my factual findings above, I accept the applicant's submissions that the stated reason is not the substantial and operative reason for the decision.
2. I have found that despite Ms Faraj's optimism about reaching an in-principle agreement with the unions on 10 and 11 May 2023, the situation regarding the EA bargaining process was still volatile. I do not accept the respondent's submissions that the dismissal of Mr Gavin "was an outcome which had been landed on much earlier and was known". While the redundancy of his then-current role was part of the overall restructure discussions, Mr Gavin had been included in the corporate restructure either at the highest, or equal highest, level until that structure was effectively ditched at the meeting between Ms Faraj, Mr Noes, and Mr Sheehan around midday on 22 May 2023. The overall factual picture is only consistent with Ms Faraj making a snap decision based on her irritation with Mr Gavin because of his refusal of the new role in the 4 May email and his proposed job descriptions in the 19 May email.
3. Based on my factual findings in relation to Ms Faraj's reasons for deciding to terminate Mr Gavin's employment, I find that the substantial and operative reason for Mr Gavin's termination was his exercise of his workplace rights, namely in making the complaints and inquiries described above by sending his emails of 4 and 19 May. I am able to find that the applicant has satisfied his onus of proving the existence of the circumstances he alleges are the reason for the adverse actions as an objective fact: Tattsbet Ltd v Morrow (2015) 233 FCR 46; [2015] FCAFC 62 at [119].

1. Under s 351, an employer must not take adverse action against an employee of the employer because of, inter alia, the person's family or carer's responsibilities. The respondent submitted "[t]here was no clear communication of any family responsibilities by Mr Gavin to a manager".
2. I have found above at [194] that family responsibilities were not a motivator for Ms Faraj's decision. Accordingly, Svitzer does not have any onus in relation to this part of the applicant's case.

Did Svitzer take adverse action against Mr Gavin in contravention of Part 3-1 of the FW Act?

1. As a result of my findings as to Ms Faraj's substantial and operative reasons for Mr Gavin's dismissal, which was an adverse action, I have reached a level of comfortable satisfaction that his dismissal was a breach of Part 3-1 of the FW Act.

1. Given my findings on the adverse action claim, it may not be strictly necessary to determine this part of the claim, unless different damages flow from a breach of contract than from a claim under the FW Act - a matter that has been reserved for later argument. As the matter was argued, albeit as a less substantial part of the applicant's claim, I should determine the issue.
2. The Agreed Factual and Legal Issues for Determination prepared by the parties deals with this question by first asking, "Did Mr Gavin's contract of employment contain an implied term that the parties would conduct themselves in good faith toward one another in respect of his employment?"
3. If the answer to the first question yes, then the second question is whether Svitzer breached such a term by:

(a) refusing or failing to engage in further negotiations with Mr Gavin about the Operations and Strategic Projects Manager role; or

(b) not offering to Mr Gavin any role in the new structure; or

(c) terminating the employment of Mr Gavin.

1. Principles in relation to the duty of good faith were summarised by Allsop CJ in Paciocco v Australia and New Zealand Banking Group Pty Ltd (2015) 236 FCR 199; [2015] FCAFC 50 at [288]:

The usual content of the obligation of good faith that can be extracted from cases such as Renard Constructions; Hughes Bros Pty Ltd v Trustees of the Roman Catholic Church (Archdiocese of Sydney) (1993) 31 NSWLR 91; Burger King Corporation v Hungry Jack's Pty Ltd [2001] NSWCA 187; (2001) 69 NSWLR 558; Alcatel Australia Ltd v Scarcella [1998] NSWSC 483; (1998) 44 NSWLR 349; and United Group Rail Services Ltd is an obligation to act honestly and with a fidelity to the bargain; an obligation not to act dishonestly and not to act to undermine the bargain entered or the substance of the contractual benefit bargained for; and an obligation to act reasonably and with fair dealing having regard to the interests of the parties (which will, inevitably, at times conflict) and to the provisions, aims and purposes of the contract, objectively ascertained.

Did Mr Gavin's contract of employment contain an implied term that the parties would conduct themselves in good faith toward one another in respect of his employment?

1. Mr Gavin contends that Svitzer "did an abrupt about-face" after he participated in the negotiations regarding his role appropriately and in good faith.
2. The applicant submitted that implied in every contract of employment are obligations of "good faith", at least in respect of employees, relying on Paciocco, X v The Commonwealth of Australia (1999) 200 CLR 177; [1999] HCA 63 at 187, and Russell v The Trustees of the Roman Catholic Church for the Archdiocese of Sydney (2007) 69 NSWLR 198; [2007] NSWSC 104. In Russell, Rothman J held that in a contract of employment, there exists under the common law of Australia an implied duty of good faith on the part of both the employee and employer: see [71], [100]-[101], [124], [134].
3. In support of his submission that the duty of good faith should be implied into this contract, the applicant referred to the nature of the employment contract and the power disparity between the parties; see Esso Australia Resources Pty Ltd v Southern Pacific Petroleum NL [2005] VSCA 228 at [4], [25]. The implied term arises in the context of Svitzer's unfettered right to terminate Mr Gavin's employment pursuant to cl 14 of his employment contract; it is submitted that that term should be restrained by the imposition of the duty of good faith. Mr Saunders noted that he did not suggest that Svitzer should subordinate its own interest or rights, nor that the duty is about a fair and reasonable outcome. Rather, the obligations that arise from the implication of good faith in the contract relate to whether Svitzer made the decision to restructure the company and terminate Mr Gavin's employment in a reasonable way. It was submitted that the implied term would prevent Svitzer from acting in a way that is capricious or foundationally unreasonable.
4. The respondent submitted that the High Court's decision in Commonwealth Bank of Australia v Barker (2014) 253 CLR 169; [2014] HCA 32 decisively rejected the implication of a term of "mutual trust and confidence" in employment contracts and did not endorse a general implied duty of "good faith". On that basis, it said, the Courts have expressed hesitation about, or rejected, a general implied duty of good faith in employment, except in narrowly defined contexts, and sought to differentiate the factual circumstances in which such an implication arose (see above re Paciocco). Mr Rauf also referred to such cases as:

(a) Adventure World Travel v Newsom (2014) 86 NSWLR 515; [2014] NSWCA 174; this case concerned the construction of a clause in an employment contract that related to the giving of notice. Meagher JA held that the exercise of the power to fix a notice period had to be constrained by implied obligations of reasonableness and good faith (at [26]). Meagher JA continued that where a clause in a contract gave a power to one party for a purpose but in terms wider than necessary for the protection of its legitimate interests, the exercise of the power could be constrained by implied obligations of reasonableness and good faith; and

(b) Burger King Corporation v Hungry Jacks Pty Ltd (2001) 69 NSWLR 558; [2001] NSWCA 187 concerned the construction of a termination clause in a commercial contract. The Court found that obligations of good faith and reasonableness will be more readily implied in standard form contracts, particularly if such contracts contain a general power of termination (at [163]). The Court found that it was necessary to imply terms of reasonableness and good faith into a Development Agreement to ensure that Burger King Corporation could not bring an end to valuable rights of Hungry Jacks Pty Ltd under the Agreement for slight breaches of operational requirements (at [183]).

1. The respondent submitted that the applicant's case did not precisely articulate the scope and application of an implied obligation of good faith in relation to Mr Gavin's employment. For example, how would it operate? To which decisions would it apply? How would it interact with the express provisions of the contract? The respondent submitted that the Court has warned against the judicial implication of open-ended or uncertain obligations into employment contracts, holding that any such development was a matter for legislative intervention, not the common law.
2. Again, there was a reliance on the "floodgates" argument that if an obligation of good faith were implied into employment contract generally, then any employee could allege a breach of good faith in any aspect of a termination as opposed to pursuing unfair dismissal.
3. The respondent submitted that Mr Gavin had no contractual or other entitlement to any other position or redeployment after his dismissal and referred to Barker, where French CJ, Bell and Keane JJ stated at [108]:

It is sufficient for present purposes to observe that the more specific requirement, deriving from notions of fairness, that an employer must attempt to redeploy an employee before terminating his or her employment does not arise from, and is not an incident of, the legal relationship between employer and employee. Contracts of employment are not rendered futile because of the absence of a term to this effect. To the contrary, it would not be possible for all employers to give effect to such a term. This tells against the application of such a requirement as a universal rule. It cannot be said to be "necessary" in the sense described earlier in these reasons.

1. In reply, the applicant agreed that Paciocco was not concerned with an employment relationship, but noted that, as the High Court explained in Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd (2022) 275 CLR 165; [2022] HCA 1, the principles governing a contract of employment are those which govern contracts generally (at [60], [88] (Kiefel CJ, Keane and Edelman JJ); [124], [164] (Gageler and Gleeson JJ); [173] and [187] (Gordon J)). The applicant submitted that the statement of principle he relied upon in Paciocco is equally apt in an employment context.
2. In relation to Barker, the applicant relied on the obiter statements of French CJ, Bell and Keane JJ who said (at [42], see also Kiefel J at [107]):

The above conclusion [in relation to the implied term of trust and confidence] should not be taken as reflecting upon the question whether there is a general obligation to act in good faith in the performance of contracts. Nor does it reflect upon the related question whether contractual powers and discretions may be limited by good faith and rationality requirements analogous to those applicable in the sphere of public law. Those questions were not before the Court in this appeal.

1. As outlined at [206] above, the way in which the parties put the alleged breaches are the ending of negotiations with Mr Gavin about the Operations and Strategic Projects Manager role, not offering him a role in the new structure, and terminating his employment.
2. The applicant relied on what he characterised as a "snap decision based on perhaps half an hour of irritable thought by Ms Faraj" after which Svitzer "wholly abandoned its usual processes and the expectations it had generated in Mr Gavin, and sacked him without discussion or even warning". Ms Faraj's decision was "more than simple business efficacy" and he relied on her response to his perceived lack of enthusiasm for the proposal that, as the applicant pointed out, would see him paid less than his previous roles (it was submitted that he would be "paid less for more work" but I am not sure that that has been sufficiently proven). It was submitted that this was the "opposite of reasonable behaviour or fair dealing" and was a failure to engage with Mr Gavin in good faith.
3. Mr Gavin's position was not that Svitzer did not have the right to restructure its operations, including in ways that led to Mr Gavin's dismissal. Rather, the applicant's case concerned Svitzer's sudden pivot away from a rational, considered termination process that involved reasonable engagement with Mr Gavin. The applicant contended that it is the method by which the restructure was ultimately implemented, and the matters which motivated it, that created the breach of any implied term as to good faith. Put differently, it is not about whether the outcome of Svitzer's restructure was objectively reasonable. It is about the way Svitzer conducted itself and whether it was consistent with a reasonable relationship in the context of employment.
4. The respondent countered that as there was no implied term as to good faith, particularly as to terminations, then considerations of whether the dismissal were harsh or unreasonable was irrelevant. However, it relied on its ability to act in relation to Mr Gavin's employment in accordance with his contract, which included no guarantee of ongoing employment, and contained provisions as to dismissal.

1. Any discussion of implied terms in contracts must commence with Codelfa Construction Pty Ltd v State Rail Authority (NSW) (1982) 149 CLR 337; [1982] HCA 24, where Mason J (with whom Stephen and Wilson JJ agreed) said at 345 that implication is not "an orthodox exercise in the interpretation of the language of a contract, that is, assigning a meaning to a particular provision." It is nevertheless an "exercise in interpretation, though not an orthodox instance."
2. Courts have implied terms in contracts:

(a) on the facts of the case to give business efficacy to a contract;

(b) by law in particular classes of contract or in all classes of contract; and

(c) by custom in particular classes of contract.

(see Barker at [21] (French CJ, Bell and Keane JJ)).

1. Australian courts have generally been hesitant to define definitively the content of the duty and the circumstances in which it may arise as an implied term (see Paciocco at [290]). The consideration of whether a duty should be implied in this case cannot be a determination that all contracts of employment should have such a duty implied into them; each determination must be made in on the facts of the case.
2. In Mineralogy Pty Ltd v Sino Iron Pty Ltd (No 6) (2015) 329 ALR 1; [2015] FCA 825 at [1006], Edelman J found that there should be no general implication of a term of good faith to a commercial contract. In the context of a contractual clause which empowers one party to act to the detriment of another, Edelman J said at [1010]:

... the content of the norm of good faith has often been described as requiring "reasonableness" in the exercise of the power, or, in more detail, "to act reasonably and with fair dealing having regard to the interests of the parties (which will, inevitably, at times conflict) and to the provisions, aims and purposes of the contract, objectively ascertained": Paciocco v Australia and New Zealand Banking Group Limited [2015] FCAFC 50 [288] (Allsop CJ citing Renard Constructions, Hughes Bros Pty Ltd v Trustees of the Roman Catholic Church for the Archdiocese of Sydney (1993) 31 NSWLR 91, Burger King Corporation v Hungry Jack's Pty Ltd [2001] NSWCA 187; (2001) 69 NSWLR 558, and Alcatel Australia Ltd v Scarcella [1998] NSWSC 483; (1998) 44 NSWLR 349).

... I doubt whether there should be a general limitation upon an implied qualification of "reasonableness" so that the obligation applies only to circumstances of irrationality or where the outcome of the exercise of the power is so unreasonable that no reasonable power holder could ever have acted in that way. Once again, the existence and content of the implication in any case will depend on the context. It may also be that any "reasonableness" implication would not be confined by adjectives such as "outrageous" or "so unreasonable that no reasonable decision maker would make it": compare Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332, 364 [68] (Hayne, Kiefel and Bell JJ).

1. It seems to me, having regard to the cases considered by Edelman J in Mineralogy cited above (which paragraphs were not doubted by the Full Court (Besanko, McKerracher and Beach JJ) in Mineralogy Pty Ltd v Sino Iron Pty Ltd [2017] FCAFC 55), and the context of this contract of employment, I cannot work backwards from the way in which Mr Gavin was treated to determine whether that was a breach of good faith on the part of the employer. I must look at the contract of employment itself, the context of his employment, and the interests of the parties.
2. The contract of employment arises in a field which, it is trite to say, is highly regulated. While the FW Act is not a code in the field of industrial and employment law, it provides employees with significant rights around terms of employment, workplace relations, and general protections against unfair dismissal and the kind of adverse actions dealt with above. It seems to me that a separate requirement that the employer act in good faith in relation to termination of employment is unlikely to be "necessary" given the protections around employment, and so would not be implied into Mr Gavin's contract. That is because this is an area where, naturally, the interests of Svitzer and Mr Gavin diverge. He is already protected from retaliatory adverse actions and unfair dismissal; it is difficult to see why it would be naturally or necessarily implied into the contract that an overlay of good faith were required as well.

1. Mr Gavin received a termination payout of $104,740.66 from Svitzer, including accrued annual leave, accrued long service leave, and $43,000 in redundancy pay. He was unemployed until 7 August 2023, when he commenced work at Thales Australia, at a salary of $200,000 and a more junior level. He said that "the dismissal has had a long-term scarring effect on my career". He gave evidence as to the emotional and mental aspect of dismissal, and the effect on his reputation.
2. His salary from 1 January 2025 was $212,160 and a bonus payment of $30,401. His current employment is on a contract relating to a Navy project, and it ends in June 2028. His performance reviews have been excellent.
3. The respondent tendered evidence that a program manager at Thales could expect $220,000 per annum with a target rate variable component of 12-18 per cent. The respondent submitted that Mr Gavin could not demonstrate any loss.
4. The applicant sought re-employment (rather than reinstatement, given that the former position was no longer one offered by Svitzer). Section 545 of the FW Act allows me to make such order as I consider appropriate. However, Mr Rauf in submissions noted that any consideration of re-employment was a complex question.
5. In closing, Mr Saunders said (at T.493):

... what we would suggest [is] the better course is if in the event that Mr Gavin is successful in establishing liability in whole or in part, the parties are simply directed to provide orders that give effect to your Honour's reasons. Similarly with re-employment and compensation, we've proposed in the written submissions that a conferral process - that the parties be directed to confer or possibly mediate on that question of remedy. ... [T]he reason that that's practical rather than an unnecessary bifurcation is because of the penalty aspect of the claim. It is impossible to address your Honour on penalty today, for me, let alone the respondent. That necessarily, if it is necessary, awaits the decision.

1. The parties are aligned that this approach - to leave remedies, including any compensation or penalties until after my decision on liability - is a sensible one, and the parties will confer and if necessary seek a relisting for any further hearing required.

1. I will make the first two declarations sought by the applicant.

I certify that the preceding two hundred and thirty-three (233) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Needham.

Associate:

Dated: 18 December 2025

Annexure A

Annexure B

Annexure C