Tomvald v Toll Transport Pty Ltd

Date of hearing: 28-30 November 2016, 1-2 December 2016 and 28-29 March 2017

National Practice Area: Employment & Industrial Relations

Solicitor for the Respondent: Laycock Burke Castaldi Lawyers

AND: TOLL TRANSPORT PTY LTD Respondent

JUDGE: FLICK J DATE OF ORDER: 12 OCTOBER 2017

1. The parties are to file and serve within fourteen days a table setting forth either: (i) an agreed quantum of compensation to be payable to Mr Tomvald; or, in the event of a failure to agree: (ii) a table setting forth the matters upon which there is disagreement and the reasons for any disagreement.
2. Subject to Order 1, the parties are to bring in Short Minutes of Orders to give effect to these reasons within fourteen days.
3. Liberty is reserved to either party to have the matter re-listed on 48 hours' notice in writing. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT 1 In August 2016 Mr Joshua Tomvald filed in this Court an Originating Application and Statement of Claim. The First Respondent was named as Toll Transport Pty Ltd ("Toll Transport"). The Second and Third Respondents were named as Mr Adam Jones and Ms Tamara Green respectively, but the proceedings against the Second and Third Respondents were discontinued. 2 Mr Tomvald is a 26 year old freight handler. 3 The identity of his employer has changed over time. As from 2007 it would appear that he was initially employed by Toll Personnel Pty Ltd. That company traded as "Toll People". In October 2012 he was offered "an appointment as a Freight Handler on a casual basis with Toll Pty Ltd … one of the Toll Group of companies". By letter dated 26 May 2015 Mr Tomvald was, however, notified of "a proposed change to [his] employer company". As at that date, the letter notifying him of the proposed change identified his current employer as Toll Ipec Pty Ltd. The same letter informed him that from 1 July 2015, his employer company would become "Toll Transport Pty Limited … the group's primary operating entity in Australia". 4 Although the precise identity of his employer may well have changed over time, the fact remains that he has been employed by one or other of the Toll Group of companies as a freight handler for a period of almost a decade. 5 In April 2016 Mr Tomvald approached Toll Transport and sought to convert his position as a casual employee to a permanent position. He claimed an entitlement to a permanent position employed for 38 hours per week. Toll Transport offered him a permanent part-time position for only 30 hours per week. 6 That offer was not acceptable to Mr Tomvald. He commenced this proceeding. He claims (inter alia) that he has a right to convert from casual employment to permanent employment on a "like for like" basis. Previously he worked Monday to Friday commencing normally at 4.00am and generally did an 8 hour shift. He wants a like position on a permanent basis. He also claims that Toll Transport have contravened a number of provisions of the Fair Work Act 2009 (Cth) (the "Fair Work Act"). In all, nine contraventions are alleged. Mr Tomvald seeks declaratory relief, compensation and orders for the imposition of penalties with any penalties to be payable to Mr Tomvald. 7 It has been concluded that contraventions 2, 5, 6, 7 and 9 have been made out. 8 A Notice of Cross-Claim filed in November 2016 by Toll Transport, it has been further concluded, falls away and need not be considered given the conclusion that Mr Tomvald was not a permanent employee but remained a casual employee. The Cross-Claim was filed to cover the position that may have emerged had it been concluded that Mr Tomvald was a permanent employee and had therefore received additional payments only payable to a casual employee. That Cross-Claim sought (inter alia) the recovery of those overpayments said to have been made to Mr Tomvald for the period from 22 October 2012 up to the present, together with interest. 9 It should be noted at the outset that the pleadings in the present matter whereby the competing claims for relief were advanced for resolution did not proceed smoothly. The initial Statement of Claim was filed on 4 August 2016. Leave was granted to file an Amended Statement of Claim on 15 November 2016. One of the amendments then effected was to claim declaratory relief as to Mr Tomvald having been employed on a permanent basis by Toll Transport as from October 2012. The date such employment was said to have commenced assumed relevance: it affected both the Enterprise Agreement which covered his employment; and it occasioned Toll Transport to file its Cross-Claim seeking the recovery of moneys paid to Mr Tomvald in excess of that to which he was entitled if he was in fact a permanent employee. 10 The hearing commenced on 28 November 2016. But it then emerged for the first time that Mr Tomvald had been employed by a number of Toll related companies over the years and had only been employed by Toll Transport as from 1 July 2015. Both the Statement of Claim and Amended Statement of Claim had identified the wrong entity as the employer for periods prior to 1 July 2015. Such fundamental errors should not have occurred. A Further Amended Statement of Claim was filed on the third day of the hearing.

THE FAIR WORK ACT 11 Although it is necessary to subsequently refer to other provisions of the Fair Work Act, those provisions which assume central relevance are ss 50, 340, 341, 345, 360, 361, 545 and 546. 12 The text of each of these provisions assumes relevance, as does the question as to the need for Mr Tomvald to discharge the onus of proof imposed upon him and potentially the onus placed upon Toll Transport to discharge the onus of proof imposed upon it, assuming s 361 applies. 13 Section 50 provides as follows: Contravening an enterprise agreement A person must not contravene a term of an enterprise agreement. 14 Sections 340, 341, 345, 360 and 361 all appear in Pt 3-1 of the Fair Work Act, which is headed "General protections". Section 340 provides as follows: Protection (1) A person must not take adverse action against another person: (a) because the other person: (i) has a workplace right; or (ii) has, or has not, exercised a workplace right; or (iii) proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right; or (b) to prevent the exercise of a workplace right by the other person. (2) A person must not take adverse action against another person (the second person) because a third person has exercised, or proposes or has at any time proposed to exercise, a workplace right for the second person's benefit, or for the benefit of a class of persons to which the second person belongs. Section 341(1) defines a "workplace right" as follows: Meaning of workplace right (1) A person has a workplace right if the person: (a) is entitled to the benefit of, or has a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body; or (b) is able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument; or (c) is able to make a complaint or inquiry: (i) to a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrument; or (ii) if the person is an employee - in relation to his or her employment. 15 Section 345 provides as follows: Misrepresentations (1) A person must not knowingly or recklessly make a false or misleading representation about: (a) the workplace rights of another person; or (b) the exercise, or the effect of the exercise, of a workplace right by another person. (2) Subsection (1) does not apply if the person to whom the representation is made would not be expected to rely on it. 16 Sections 360 and 361 of the Fair Work Act are directed to the question of proof that a person takes action "for a particular reason" or "with a particular intent" - as is the case in respect to contraventions of ss 343 and 355. Section 360 provides as follows: Multiple reasons for action For the purposes of this Part, a person takes action for a particular reason if the reasons for the action include that reason. Section 361 is the "reverse onus of proof" provision and is as follows: Reason for action to be presumed unless proved otherwise (1) If: (a) in an application in relation to a contravention of this Part, it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and (b) taking that action for that reason or with that intent would constitute a contravention of this Part; it is presumed that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise. (2) Subsection (1) does not apply in relation to orders for an interim injunction. 17 Section 535 of the Fair Work Act provides as follows: Employer obligations in relation to employee records (1) An employer must make, and keep for 7 years, employee records of the kind prescribed by the regulations in relation to each of its employees. (2) The records must: (a) if a form is prescribed by the regulations - be in that form; and (b) include any information prescribed by the regulations. (3) The regulations may provide for the inspection of those records. 18 Section 545 of the Fair Work Act provides in relevant part as follows: Orders that can be made by particular courts Federal Court and Federal Circuit Court (1) The Federal Court … may make any order the court considers appropriate if the court is satisfied that a person has contravened, or proposes to contravene, a civil remedy provision. (2) Without limiting subsection (1), orders the Federal Court … may make include the following: (a) an order granting an injunction, or interim injunction, to prevent, stop or remedy the effects of a contravention; (b) an order awarding compensation for loss that a person has suffered because of the contravention; (c) an order for reinstatement of a person. 19 Section 546 provides in relevant part as follows: Pecuniary penalty orders (1) The Federal Court … may, on application, order a person to pay a pecuniary penalty that the court considers is appropriate if the court is satisfied that the person has contravened a civil remedy provision. Determining amount of pecuniary penalty (2) The pecuniary penalty must not be more than: (a) if the person is an individual - the maximum number of penalty units referred to in the relevant item in column 4 of the table in subsection 539(2); or (b) if the person is a body corporate - 5 times the maximum number of penalty units referred to in the relevant item in column 4 of the table in subsection 539(2). Payment of penalty (3) The court may order that the pecuniary penalty, or a part of the penalty, be paid to: (a) the Commonwealth; or (b) a particular organisation; or (c) a particular person.

Mr Tomvald's onus of proof 20 At least two questions arise in respect to the onus of proof imposed upon Mr Tomvald. 21 First, an allegation that an employer has contravened a "civil remedy provision" of the Fair Work Act is an allegation as to "quasi-criminal" conduct: e.g., Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (No 3) [2002] FCA 1294 at [53], (2002) ATPR ¶41-901 at 45,414 per Goldberg J; BHP Coal Pty Ltd v Construction, Forestry, Mining and Energy Union [2013] FCA 1291 at [68] to [69], (2013) 239 IR 363 at 388 to 389 per Collier J. Due regard must thus be had to the gravity of the allegations being made. In that context, s 140 of the Evidence Act 1995 (Cth) provides as follows: Civil proceedings: standard of proof (1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities. (2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account: (a) the nature of the cause of action or defence; and (b) the nature of the subject-matter of the proceeding; and (c) the gravity of the matters alleged. The standard of proof referred to in s 140(2) is a restatement of the standard of proof referred to by Dixon J (as his Honour then was) in Briginshaw v Briginshaw (1938) 60 CLR 336 at 362 (see Liquor Hospitality and Miscellaneous Union v Arnotts Biscuits Ltd [2010] FCA 770 at [13], (2010) 188 FCR 221 at 225 per Logan J). 22 Second, in those circumstances where it is alleged that Toll Transport took action "for a particular reason or with a particular intent", s 361 casts upon Toll Transport the onus to prove "otherwise". But to engage the benefit conferred by s 361, Mr Tomvald must adduce evidence that is "consistent with the hypothesis" that the action was taken for the reason or intent alleged: General Motors-Holden's Pty Ltd v Bowling (1976) 51 ALJR 235 at 241 per Mason J (as his Honour then was). When addressing a predecessor provision to s 361 (namely s 5(4) of the Conciliation and Arbitration Act 1904 (Cth)), Mason J in Bowling there concluded (at 241): Section 5 (4) imposed the onus on the appellant of establishing affirmatively that it was not actuated by the reason alleged in the charge. The consequence was that the respondent, in order to succeed, was not bound to adduce evidence that the appellant was actuated by that reason, a matter peculiarly within the knowledge of the appellant. The respondent was entitled to succeed if the evidence was consistent with the hypothesis that the appellant was so actuated and that hypothesis was not displaced by the appellant. To hold that, despite the sub-section, there is some requirement that the prosecutor brings evidence of this fact is to make an implication which in my view is unwarranted and which is at variance with the plain purpose of the provision in throwing on to the defendant the onus of proving that which lies peculiarly within his own knowledge.

The "reverse" onus of proof - s 361 23 When addressing s 346 of the Fair Work Act and the prohibition there contained against the taking of "adverse action" because (inter alia) a person was not a member of an industrial association, in Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32, (2012) 248 CLR 500, French CJ and Crennan J observed in respect to that provision and s 361 (at 506): [5] The task of a court in a proceeding alleging a contravention of s 346 is to determine, on the balance of probabilities, why the employer took adverse action against the employee, and to ask whether it was for a prohibited reason or reasons which included a prohibited reason. Their Honours continued (at 517): [44] There is no warrant to be derived from the text of the relevant provisions of the Fair Work Act for treating the statutory expression "because" in s 346, or the statutory presumption in s 361, as requiring only an objective enquiry into a defendant employer's reason, including any unconscious reason, for taking adverse action. The imposition of the statutory presumption in s 361, and the correlative onus on employers, naturally and ordinarily mean that direct evidence of a decision-maker as to state of mind, intent or purpose will bear upon the question of why adverse action was taken, although the central question remains "why was the adverse action taken?" [45] This question is one of fact, which must be answered in the light of all the facts established in the proceeding. Generally, it will be extremely difficult to displace the statutory presumption in s 361 if no direct testimony is given by the decision-maker acting on behalf of the employer. Direct evidence of the reason why a decision-maker took adverse action, which may include positive evidence that the action was not taken for a prohibited reason, may be unreliable because of other contradictory evidence given by the decision-maker or because other objective facts are proven which contradict the decision-maker's evidence. However, direct testimony from the decision-maker which is accepted as reliable is capable of discharging the burden upon an employer even though an employee may be an officer or member of an industrial association and engage in industrial activity. Justices Gummow and Hayne also relevantly observed in respect to both the term "because" and s 360 (at 534 to 535): [100] The application of s 346 turns on the term "because". This term is not defined. The term is not unique to s 346. It appears in s 340 (regarding workplace rights), s 351 (regarding discrimination), s 352 (regarding temporary absence in relation to illness or injury) and s 354 (regarding coverage by particular instruments, including provisions of the National Employment Standards). [101] The use in s 346(b) of the term "because" in the expression "because the other person engages … in industrial activity", invites attention to the reasons why the decision-maker so acted. Section 360 stipulates that, for the purposes of provisions including s 346, whilst there may be multiple reasons for a particular action "a person takes action for a particular reason if the reasons for the action include that reason". These provisions presented an issue of fact for decision by the primary judge. … [103] With respect to what became s 346 of the Act, para 1458 of the Explanatory Memorandum to the Fair Work Bill 2008 stated: "Clause 360 provides that for the purposes of Part 3-1, a person takes action for a particular reason if the reasons for the action include that reason. The formulation of this clause embodies the language in existing section 792 which appears in Part 16 of the [Workplace Relations Act 1996 (Cth)] (Freedom of Association) and includes the related jurisprudence. This phrase has been interpreted to mean that the reason must be an operative or immediate reason for the action (see Maritime Union of Australia v CSL Australia Pty Ltd [[2002] FCA 513 at [54] to [55], (2002) 113 IR 326 at 342 per Branson J]). The 'sole or dominant' reason test which applied to some protections in the [Workplace Relations Act 1996 (Cth)] does not apply in Part 3-1." (Emphasis added.) The phrase "operative or immediate reason" used in CSL is relevantly indistinguishable from the phrase "a substantial and operative factor" used by Mason J in Bowling. [104] In light of the legislative history of s 346 and the intention of Parliament outlined above, the reasoning of Mason J in Bowling is to be applied to s 346. An employer contravenes s 346 if it can be said that engagement by the employee in an industrial activity comprised "a substantial and operative" reason, or reasons including the reason, for the employer's action and that this action constitutes an "adverse action" within the meaning of s 342. See also: Victoria (Office of Public Prosecutions) v Grant [2014] FCAFC 184 at [32], (2014) 246 IR 441 at 447 to 448 per Tracey and Buchanan JJ. Upon proof that an employee has exercised a "workplace right", it is then presumed that that action was taken for the reason alleged unless the employer proves to the contrary: Kennewell v MG & CG Atkins [2015] FCA 716 at [52] per Tracey J; Tsilibakis v Transfield Services (Australia) Pty Ltd [2015] FCA 740 at [14] per White J. The rationale for s 361 casting the onus in this way is that the facts lie peculiarly within the knowledge of the employer: General Motors-Holden's Pty Ltd v Bowling (1976) 51 ALJR 235 at 241 per Mason J; RailPro Services Pty Ltd v Flavel [2015] FCA 504 at [23], (2015) 242 FCR 424 at 432 per Perry J; Australian Building and Construction Commissioner v Hall [2017] FCA 274 at [22] per Flick J. 24 With respect to the separate question as to the standard of proof to be applied when seeking to rebut the presumption, it was common ground between Mr Tomvald and Toll Transport that the standard as at that point in the analysis is the balance of probabilities. This approach is consistent with both the observations of French CJ and Crennan J in Board of Bendigo and with the following observations of Gray J in National Tertiary Education Union v Royal Melbourne Institute of Technology [2013] FCA 451, (2013) 234 IR 139 at 146: [20] … Further, s 360 of the Fair Work Act recognises expressly that action may be taken for more than one reason. What the party seeking to rebut the presumption must do is to establish on the balance of probabilities that the alleged improper reason was not a reason for the taking of action. Generally (although as a matter of logic, not necessarily) the evidence as to the state of mind of the decision-maker or decision-makers will include evidence as to what are claimed to be the actual reasons for the decision. Even if the reasons advanced as actual reasons for the decision are accepted as such, the absence of evidence that there were no additional reasons, or that the actual reasons did not include the alleged proscribed reasons, will usually result in a failure to rebut the presumption.

THE 2013 ENTERPRISE AGREEMENT & QUESTIONS OF INTERPRETATION 25 Mr Tomvald's employment has over the years been covered by various awards and two Enterprise Agreements - one being the Toll Group and Transport Workers Union Fair Work Agreement 2011-2013 and the other being the Toll Group - TWU Enterprise Agreement 2013-2017 (the "Enterprise Agreement"). 26 His employment with Toll Transport commenced on 1 July 2015. 27 Prior reliance upon the earlier 2011 Agreement largely fell away with the filing of the Further Amended Statement of Claim. Thereafter, it was common ground that it was the 2013 Enterprise Agreement which assumed immediate relevance. 28 Particular provisions of the Enterprise Agreement are relied upon by Mr Tomvald. Questions arose as to the manner in which those provisions are to be interpreted.

The provisions relied upon 29 Although the Enterprise Agreement should be construed in its entirety, some particular provisions assume greater prominence than others. Those provisions are the following. 30 Clause 2 sets forth as follows the objects of the Enterprise Agreement: 2. Objects The objects of this Agreement include the following: (a) promoting job security, effective workplace representation and training for Transport Workers; (b) enhancing the safety and fairness of Toll's operations; (c) maintaining the safety net and enhancing fair working conditions for Transport Workers; (d) enhancing the productivity and efficiency of Toll's operations; and (e) subject to reasonable practical requirements, such as adequately servicing industry peaks, promoting job security through the full utilisation of full-time permanent Transport Workers before the engagement of part-time, casual, labour hire or outside hire workers. 31 Clause 4.1 relevantly sets forth as follows the coverage of the Enterprise Agreement: 4.1 General This Agreement applies to and is binding on Toll, all Transport Workers and the Union. The phrase "Transport Workers" is defined in cl 3 as follows: Definitions … Transport Worker means any person who is eligible to be a member of the Union and who is employed by Toll in Australia in any of the classifications contained in the Award or in the Local Agreements. 32 Clause 6(a) of the Enterprise Agreement provides as follows: This Agreement incorporates the Award, provided that Part A of this Agreement and the Local Agreements will prevail over the Award to the extent of any inconsistency. An inconsistency will not arise simply because the Award provides a more beneficial entitlement to a Transport Worker than that contained in Part A of this Agreement. The "Award" is defined for the purposes of the Enterprise Agreement in cl 3 as follows: Definitions … Award means: (i) the Road Transport and Distribution Award 2010; and (ii) the Road Transport (Long Distance Operations) Award 2010. 33 Clause 12.6 of the Road Transport and Distribution Award 2010 (the "Award") - the clause dealing with the "right to elect" to convert from casual employment to permanent employment - provides as follows: Conversion of casual employment (a) A casual employee, other than an irregular casual employee who has been engaged by a particular employer for a sequence of periods of employment under this award during a period of 12 months will thereafter have the right to elect to have their contract of employment converted to full-time employment or part-time employment if the employment is to continue beyond the conversion process. (b) An employer of such an employee must give the employee notice in writing of the provisions of this clause within four weeks of the employee having attained such period of 12 months. (c) The employee retains the right of election under this clause even if the employer fails to comply with clause 12.6(b). (d) A casual employee who does not, within four weeks of receiving written notice, elect to convert their contract of employment to full-time employment or part-time employment will be deemed to have elected against any such conversion. (e) Any casual employee who has the right to elect under clause 12.6(a), upon receiving notice under clause 12.6(b), or after the expiry of the time for giving such notice, may give four weeks notice in writing to the employer that they seek to elect to convert their contract of employment to full-time or part-time employment, and within four weeks or receiving such notice the employer must either consent to or refuse the election but must not unreasonably so refuse. (f) A causal employee who has elected to be converted to a full-time employee or a part-time employee in accordance with clause 12.6(e) may only revert to casual employment by written agreement with the employer. (g) If a casual employee has elected to have their contract of employment converted to full-time or part-time employment, the employer and the employee, subject to clause 12.6(e), must discuss and agree upon: (i) which form of employment the employee will convert to, that is, full-time or part-time; and (ii) if it is agreed that the employee will become a part-time employee, the number of hours and the pattern of hours that will be worked, as set out in clause 12.4(b). (h) An employee who has worked on a full-time basis throughout the period of casual employment has the right to elect to convert their contract of employment to full-time employment and an employee who has worked on a part-time basis throughout the period of casual employment has the right to elect to convert their contract of employment to part-time employment, working the same number of hours and times of work as previously worked, unless other arrangements are agreed upon between the employer and employee. Upon such agreement being reached, the employee will convert to full-time or part-time employment. Where, in accordance with clause 12.6(e) an employer refuses an election to convert, the reasons for doing so must be fully stated to and discussed with the employee concerned and a genuine attempt made to reach agreement. (i) An irregular casual employee is one who has been engaged to perform work on an occasional or non-systematic or irregular basis. 34 Clause 14 of the Enterprise Agreement provides as follows: Consultation on workplace change (a) If Toll is considering workplace changes that are likely to have a significant effect on Transport Workers, it will consult with the Union and any Transport Workers who will be affected by any proposal. (b) As soon as practicable Toll must discuss with the Union and relevant Transport Workers the introduction of the change, the effect the change is likely to have on the Transport Workers, the number of any redundancies, the persons or class of persons likely to be affected and any reasonable alternatives to the change or redundancy. Toll must discuss measures to avert or mitigate the adverse effect of the change on the Transport Workers. (c) Toll will give prompt and genuine consideration to matters raised about the change by the affected Transport Workers and the Union. (d) As soon as a final decision has been made, Toll must notify the Union and the Transport Workers affected, in writing, and explain the effects of the decision. (e) In the event that a Dispute arises in respect to any decision, proposal or consideration to effect any change, the parties agree to follow the disputes procedure in clause 15, and until the Dispute is resolved in accordance with that procedure the status quo before the Dispute arose will be maintained and work will continue without disruption. (f) A reference to a change that is "likely to have a significant effect on Transport Workers" includes but is not limited to: (i) the termination of the employment of Transport Workers; or (ii) major change to the composition, operation or size of Toll's workforce or to the skills required of Transport Workers; or (iii) the elimination or diminution of a significant number of job opportunities (including opportunities for promotion or tenure); or (iv) the significant alteration of hours of work; or (v) the need to retrain Transport Workers; or (vi) the need to relocate Transport Workers to another workplace; or (vii) the restructuring of jobs. (g) With the prior approval of Toll and subject to clause 39, the Union may enter Toll's premises in order to consult with Transport Workers regarding a workplace change. 35 Clause 21(e) of the Enterprise Agreement relevantly provides as follows: … where a casual Transport Worker has been directly employed by Toll or engaged through a labour hire company to perform work for Toll on a regular and systematic basis for more than 6 months, the Transport Worker may elect to become a permanent Transport Worker, on a like for like basis, within the specific business unit at which the Transport Worker is engaged, in accordance with the Award.

Principles of interpretation 36 The general approach to the manner in which industrial instruments such as the present Enterprise Agreement are to be construed is well-settled. 37 An oft-repeated formulation of that general approach is that provided as follows by Madgwick J in Kucks v CSR Ltd (1996) 66 IR 182 at 184: Legal principles It is trite that narrow or pedantic approaches to the interpretation of an award are misplaced. The search is for the meaning intended by the framer(s) of the document, bearing in mind that such framer(s) were likely of a practical bent of mind: they may well have been more concerned with expressing an intention in ways likely to have been understood in the context of the relevant industry and industrial relations environment than with legal niceties or jargon. Thus, for example, it is justifiable to read the award to give effect to its evident purposes, having regard to such context, despite mere inconsistencies or infelicities of expression which might tend to some other reading. And meanings which avoid inconvenience or injustice may reasonably be strained for. For reasons such as these, expressions which have been held in the case of other instruments to have been used to mean particular things may sensibly and properly be held to mean something else in the document at hand. But the task remains one of interpreting a document produced by another or others. A court is not free to give effect to some anteriorly derived notion of what would be fair or just, regardless of what has been written into the award. Deciding what an existing award means is a process quite different from deciding, as an arbitral body does, what might fairly be put into an award. So, for example, ordinary or well-understood words are in general to be accorded their ordinary or usual meaning. See also: Transport Workers' Union of Australia v Linfox Australia Pty Ltd [2014] FCA 829 at [30], (2014) 318 ALR 54 at 58 per Tracey J; Construction, Forestry, Mining and Energy Union v Hail Creek Coal Pty Ltd [2015] FCA 532 at [6] per Logan J; Construction, Forestry, Mining and Energy Union v Port Kembla Coal Terminal Ltd (No 2) [2015] FCA 1088 at [240], (2015) 253 IR 391 at 436 per Murphy J; Australian Workers' Union v Cleanevent Australia Pty Ltd [2015] FCA 1477 at [13] per Flick J. 38 It is also well-settled that the words of an award are not to be construed "in a vacuum divorced from industrial realities": City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union [2006] FCA 813 at [57], (2006) 153 IR 426 at 440. French J (as his Honour then was) observed as follows in that case (at 438 to 439): [53] The construction of an award, like that of a statute, begins with a consideration of the ordinary meaning of its words. As with the task of statutory construction regard must be paid to the context and purpose of the provision or expression being construed. Context may appear from the text of the instrument taken as a whole, its arrangement and the place in it of the provision under construction. It is not confined to the words of the relevant Act or instrument surrounding the expression to be construed. It may extend to '… the entire document of which it is a part or to other documents with which there is an association'. It may also include '… ideas that gave rise to an expression in a document from which it has been taken'. His Honour continued on to observe (at 440): [57] It is of course necessary, in the construction of an award, to remember, as a contextual consideration, that it is an award under consideration. Its words must not be interpreted in a vacuum divorced from industrial realities - City of Wanneroo v Holmes (1989) 30 IR 362 at 378-379 and cases there cited. There is a long tradition of generous construction over a strictly literal approach where industrial awards are concerned - see eg Geo A Bond and Co Ltd (in liq) v McKenzie [1929] AR 499 at 503-4 (Street J). It may be that this means no more than that courts and tribunals will not make too much of infelicitous expression in the drafting of an award nor be astute to discern absurdity or illogicality or apparent inconsistencies. But while fractured and illogical prose may be met by a generous and liberal approach to construction, I repeat what I said in City of Wanneroo v Holmes (at 380): 'Awards, whether made by consent or otherwise, should make sense according to the basic conventions of the English language. They bind the parties on pain of pecuniary penalties.'

A PERMANENT OR CASUAL EMPLOYEE 39 At the very outset of the case advanced on behalf of Mr Tomvald is the preliminary question as to whether he is a: permanent; or a casual employee. 40 Mr Tomvald claims that he is already a "permanent employee". If he is a "permanent employee" any question as to his "right" to convert from casual to permanent becomes unnecessary to resolve. 41 It is concluded that: contrary to the submission advanced on behalf of Toll Transport, there is no "pleading" impediment to Mr Tomvald seeking declaratory relief as to his being a "permanent employee" but that: that question is resolved adversely to Mr Tomvald - he is not a "permanent employee". That being the conclusion reached, it is accordingly necessary to go on to resolve the questions which arise out of his claimed exercise of the "right" to convert from his status as a casual employee to that of a permanent employee.

The absence of any pleading impediment 42 The pleading which raises the question as to the status of Mr Tomvald's employment is para [5] of the Further Amended Statement of Claim. That paragraph pleads as follows (without alteration): 5. Between October 2012 and the present day, tThe Applicant has been employed by Toll Transport: (a) on a casual basis; or (b) alternatively, on a permanent basis. In response to this amended pleading, para [5] of the Further Amended Defence pleads as follows: 5. In response to the allegation in paragraph 5 of the Further Amended Statement of Claim, the Respondent: (a) admits the allegation in paragraph 5(a) of the Further Amended Statement of Claim, save that the Respondent asserts that the Applicant's casual employment by the Respondent began on 1 July 2015 22 October 2012; (b) denies the allegation in paragraph 5(b) of the Further Amended Statement of Claim; and (c) says that paragraph 5(b) of the Further Amended Statement of Claim is inconsistent with paragraph 5(a) of the Further Amended Statement of Claim and does not arise as a contention given that the Respondent admits paragraph 5(a). The pleading point relied upon by Toll Transport is that the admission that Mr Tomvald is a casual employee precludes any further ability on the part of Mr Tomvald to pursue a claim that he is already a permanent employee or for this Court to resolve that alternative claim. 43 That submission is rejected. 44 The purpose of a pleading is to "state with sufficient clarity the case that must be met": Banque Commerciale SA (in liq) v Akhil Holdings Ltd (1990) 169 CLR 279 at 286 to 287 per Mason CJ and Gaudron J. As to what is sufficient to inform the other party of the case it has to meet, Greenwood, McKerracher and Reeves JJ in Thomson v STX Pan Ocean Co Ltd [2012] FCAFC 15 explained that: [13] … courts do not, at least in the current era, take an unduly technical or restrictive approach to pleadings such that, among other things, a party is strictly bound to the literal meaning of the case it has pleaded. The introduction of case management has, in part, been responsible for this change in approach … See also: Sherrin Hire Pty Ltd v Sherrin Rentals Pty Ltd [2015] FCA 1107 at [44] per Edelman J. Pleadings, it may further be noted, "are but a means to an end, not an end in themselves": Australian Competition and Consumer Commission v Singapore Airlines Cargo Pte Ltd [2009] FCA 510 at [95], (2009) 256 ALR 458 at [97] 472 to 473 per Jacobson J. 45 There is no uncertainty occasioned by para [5] as to the case being advanced on behalf of Mr Tomvald: it was being asserted that he was either a permanent employee or a casual employee. The admission made by Toll Transport that he was a casual employee cannot preclude Mr Tomvald also advancing for resolution his alternative claim to be a permanent employee. 46 The lack of any uncertainty on the part of Toll Transport as to this alternative claim for declaratory relief is only reinforced by the very fact that it was the amendment to insert the alternative claim that occasioned the filing of the Cross-Claim. 47 The alternative manner in which Mr Tomvald was advancing his claim was also a matter canvassed during the case management of the present proceeding and the basis upon which the hearing was conducted.

Permanent or casual - questions of principle 48 There is no definition in the Enterprise Agreement of the phrase "casual employee". 49 The Fair Work Act does not set forth any definition of a "casual employee". 50 But cl 6(a) of the Agreement "incorporates the Award". And cl 12.5(a) of the Road Transport and Distribution Award 2010 defines a casual employee as "an employee engaged as such and paid by the hour". 51 The test to be applied when determining whether an employee is casual or permanent has attracted differing views. 52 One approach is to focus upon the substance of the relationship. One characteristic of casual employment, on this approach, is the ability of an employer to offer employment on a particular day and the ability of an employee to choose to work: Reed v Blue Line Cruises Ltd (1996) 73 IR 420 at 425 per Moore J. His Honour was there sitting in the former Industrial Relations Court. In that case, Mr Reed's employment by Blue Line Cruises had been terminated. In determining whether Mr Reed's employment fell within the relevant provisions of the then Industrial Relations Act 1988 (Cth), Moore J concluded that that question depended upon whether he was a "casual employee" as that expression had been used in reg 30B of the Industrial Relations Regulations (Cth). In resolving that question, his Honour observed (at 424 to 425): In Australian domestic law, the expressions "casual employee" or "casual employment" are expressions with no fixed meanings. In my view, it would be wrong in principle, to treat the character ascribed by an award to particular employment and adopted by the parties, as determining conclusively the character of the employment for the purposes of reg 30B which reflects employment described in Art 2(2) of the [Convention concerning Termination of Employment at the Initiative of the Employer]. … What then, is likely to have been the feature of the employment at the time of the engagement that would characterise it as an engagement on a casual basis? Plainly it involves a notion of informality or flexibility in the employment following the engagement. His Honour then set out a number of dictionary definitions and continued (at 425): A characteristic of engagement on a casual basis is, in my opinion, that the employer can elect to offer employment on a particular day or days and when offered, the employee can elect to work. Another characteristic is that there is no certainty about the period over which employment of this type will be offered. It is the informality, uncertainty and irregularity of the engagement that gives it the characteristic of being casual. To similar effect are the following observations of Wilcox, Marshall and Katz JJ in Hamzy v Tricon International Restaurants [2001] FCA 1589, (2001) 115 FCR 78 at 89: [38] … The essence of casualness is the absence of a firm advance commitment as to the duration of the employee's employment or the days (or hours) the employee will work. But that is not inconsistent with the possibility of the employee's work pattern turning out to be regular and systematic. See also: Williams v MacMahon Mining Services Pty Ltd [2010] FCA 1321 at [33] to [36], (2010) 201 IR 123 at 130 to 131 per Barker J. In Re Secure Employment Test Case [2006] NSWIRComm 38, (2006) 150 IR 1 at 57 the Industrial Relations Commission of New South Wales also looked as follows to the substance of the relationship between employer and employee: [231] The concept of a "casual" which has emerged through historical employment practice and industrial jurisprudence and which has now long been defined and regulated in awards in this State is essentially one in which: the employee has a short term engagement; shifts are irregular and unpredictable; the employee is not obliged to accept an offer to work a particular shift; the employee's employment technically commences at the beginning of a particular shift and ceases at the end of that shift; the employee is paid a loading as compensation for, amongst other things, annual leave and other benefits "accrued" during each shift worked; and the employee has no expectation of being rostered for another shift. 53 What begins as "casual employment" may, however, change over time. Indeed, in Ledger v Stay Upright Pty Ltd [2016] FCA 659, Buchanan J commented upon the conclusion of Moore J in Reed v Blue Line Cruises as follows: [61] … In Reed, Moore J was influenced against a conclusion of casual employment by the apparent regularity and eventual overall period of Mr Reed's engagement. However, his Honour stressed that he was assigning a meaning to the notion of casual employment for the purpose of the Convention concerning Termination of Employment at the Initiative of the Employer, which was a meaning different, probably, from the meaning for the purpose of award coverage. [62] It is clear that his Honour accepted that the appropriate characterisation of the nature of employment is one which must be determined by reference to what is known at the commencement of the engagement. It must be accepted that, over time, repetition of a particular working arrangement may become so predictable and expected that, at some point, it may be possible to say that what began as discrete and separate periods of employment has become, upon the tacit understanding of the parties, a regular ongoing engagement (for an example of historical interest, see Cameron v Durning [1959] AR (NSW) 142). On the other hand, retention of the same initial arrangements (month-to-month rostering, imprecision of days and hours, timesheets recording actual hours, absences or unavailability at the discretion of the employee) may indicate that the parties have chosen to perpetuate those initial arrangements - i.e. casual engagement with an entitlement to pay arising as and when work is actually performed. [63] In my view, in the present case the second approach is the one which the evidence as a whole suggests. Even though the initial arrangements came to be repeated for many years, I see nothing to indicate that the parties agreed to change the specified nature of the engagement or that there was any later mutual intent that the engagement should be other than casual, as was clearly stated in each initial contract. The parties themselves have conducted the case on the basis that such a change did not occur. 54 Another possible approach which has been expressed, albeit in the context of considering whether a casual employee was an employee engaged as such, is to focus upon the terms of engagement. On that approach the label attached to the employment at the outset is conclusive as to the status thereafter of the employment relationship: Telum Civil (Qld) Pty Ltd v Construction, Forestry, Mining and Energy Union [2013] FWCFB 2434, (2013) 230 IR 30. A Full Bench of the Fair Work Commission there concluded that the specification of casual employment in federal awards had diverged from the earlier general law position. In so concluding the Full Bench said (at 36) (without alteration): [25] [Re Metal, Engineering and Associated Industries Award, 1998 - Part 1 (2000) 110 IR 247] demonstrates how and why the specification of casual employment in Federal awards had diverged from the (ill-defined) general law position to a position where, by the time of award modernisation process, for many, if not most, Federal awards, an employee was a casual employee if they were engaged as a casual (that is, identified as casual at the time of engagement, perhaps with a requirement of a writing) and paid a casual loading. The Full Bench recognised that this approach had led to a position where employees with regular and systematic hours on an ongoing basis could still be "casual employees" under a Federal award. 55 The potential divergence of views expressed was considered by White J in Fair Work Ombudsman v Devine Marine Group Pty Ltd [2014] FCA 1365. There under consideration was cl 12 of an award which referred to "[f]ull-time employment" as "[a]ny employee not specifically engaged as being a part-time or casual employee" and cl 14 which referred to an "employer when engaging a casual". His Honour reviewed the authorities, including Blue Line Cruises and Hamzy, and concluded as follows (adopting the construction in Telum Civil): [144] It is sufficient in my opinion to state that, in the present case, the former construction draws support from two considerations and should be adopted. First, the term "specifically engaged" in cl 12 indicates that the focus is on the agreement of the parties at the commencement of the employment as to the character of the employment. Secondly, the requirement in cl 14.3 for the observance of formality at the time of engagement of a casual employee suggests that the word "engaged" is directed to the agreement made between the parties rather than to the manner and circumstances in which the employee does in fact carry out his or her work. [145] In my opinion, neither Mr James nor Mr Kouka can be regarded as casual employees on this understanding of the definition in cl 14.1. Nothing was said to them at the time of their engagement about being casuals. It cannot be concluded therefore that they were "engaged" as casuals. They gave no evidence that they had, subjectively, regarded themselves as casuals. Further, and in any event, they were not paid as casuals. [146] The better characterisation of their employment is that of full-time employees working pursuant to a contract with a fixed term. Accordingly, this claimed contravention of the Award fails. 56 Subsequent to his decision in Devine Marine Group, White J had a further occasion to consider whether an employee was a "casual" employee in Fair Work Ombudsman v South Jin Pty Ltd [2015] FCA 1456. Contraventions of the Workplace Relations Act 1996 (Cth) and the Fair Work Act were there alleged. One part of the case turned on whether employees were casual employees with the consequence that they were entitled to the casual loading then prescribed. In that context, his Honour observed: [66] Although casual employment is common, its precise definition has proved elusive. In its original conception, casual employees were those whose work was intermittent or irregular (Doyle v Sydney Steel Co Ltd (1936) 56 CLR 545 at 555) so that the employees did not know when completing one period of work if, or when, they would be employed again. Casual employees were generally thought to be engaged under a series of separate and distinct contracts with each contract terminating on the completion of the task or period for which they were engaged. Being generally paid by the hour, their employment could be terminated on an hour's notice. His Honour then proceeded to refer to (inter alia) Reed v Blue Line Cruises and Hamzy and continued: [71] In addition to these features of casual employment, the authorities indicate that the characterisation of a worker's employment as casual, or otherwise, is essentially a question of fact in which no single criterion is likely to be decisive. Instead, regard must be had to a number of matters, including the way in which the parties themselves regarded their relationship, any commitment by the employer or the worker to ongoing employment, the regularity or otherwise of the worker's hours or days of work, how the worker was notified of each period of work, the payment of an hourly rate for the hours actually worked, any indication that the hourly rate was intended to encompass leave entitlements, the absence of payment of the benefits associated with employment of an indefinite nature such as paid annual leave, sick leave and public holidays, and whether the employer and worker were able to refuse to offer or accept, as the case may be, further work. (Citations omitted.) Reference was then made to the terms of the award there in question. In the end, it was concluded that some employees were casual employees and some were full-time employees. No reference was made by his Honour to his earlier decision in Devine Marine - presumably upon the basis that that decision was not apposite to the different question required to be answered in South Jin. 57 It was submitted on behalf of the Applicant in the present case that Devine Marine should not be followed for any of three reasons, namely: the fact that the views expressed were expressed without the benefit of submissions; the conclusion reached is not consistent with a long history of authorities which stresses the need to consider the substance of the employment relationship rather than matters of form; and if the conclusion be correct, it has the potential to lead to the undesirable consequence that an employee may be regarded as a "casual employee" for the purposes of the application of an industrial agreement but a "permanent employee" for the purposes of determining (for example) leave entitlements. It is, with respect, not self-evident that there is such a stark divergence of principle in the authorities as was suggested in submissions. Each of the authorities is readily explicable by reference to the issues sought to be resolved and (in particular) whether the issue to be resolved focused upon the basis upon which the employee was initially engaged. 58 But it is unnecessary to resolve the extent to which there is any divergence in the approaches pursued by these decisions. On the facts of the present case, it is concluded that Mr Tomvald: was "engaged" as a casual employee; his employment had the character of casual employment; and he remained throughout employed as a casual employee. Whichever approach is pursued the result is the same: subject to his right to "convert", Mr Tomvald was and remained a "casual" employee. He was initially "engaged" as a casual and, notwithstanding the length of his employment, he remained a "casual" employee.

The facts - the terms of engagement & the work performed 59 There is no document which unequivocally records the basis upon which Mr Tomvald was engaged either as at: 2007 by Toll Personnel Pty Ltd; or 1 July 2015 by Toll Transport. 60 However, a letter dated 26 May 2015 from the Toll Group advised Mr Tomvald of the change in the identity of his employer from Toll Ipec Pty Ltd to Toll Transport. That letter attached a document headed "Payroll Transfer Project - Q&As" which stated in part as follows (without alteration): What will be the impact on employees? There will be no negative impact on employees. In particular: 1. Employees' terms, conditions of employment and all leave entitlements will not change. The same enterprise agreements, awards and contracts of employment will continue to apply. No change to these aspects will occur as a result of the change in employer. 2. There will be no change to an employee's duties or place of work. 3. Your new legal entity employer will recognise employees' prior service with their current employer for all purposes. 4. Your new legal entity employer will take on all of accrued leave entitlements, including personal leave. 5. Your new legal entity employer will recognise any leave arrangements for which approval has been obtained prior to 1 July 2015. In short, it will be "business as usual". The only change will be the name of a person's employer. Prior to that letter, it would appear that Mr Tomvald was employed by Toll Ipec Pty Ltd. There was, however, no document before the Court which recorded the basis upon which Mr Tomvald was employed by Toll Ipec Pty Ltd. 61 An earlier letter dated 11 October 2012 does, however, records an offer to appoint Mr Tomvald as a "Freight Handler on a casual basis with Toll Pty Ltd". That letter continued on to state: 1. Terms of Engagement and Duties 1.1 You are engaged as a casual employee and your responsibilities are set out in the position description in the attached Schedule. 1.2 You will be employed by the hour and each engagement will constitute a separate contract of employment on the same terms and conditions as are set out in this document. Starting and finishing times are to be agreed with Toll and are established to suit the operational requirements of Toll. 1.3 Your employment as a casual employee may be terminated at the conclusion of your rostered engagement by the provision of notice of such termination at the earliest possible opportunity or by the paying of an amount equivalent to the pay for that rostered engagement. Nothing in this Agreement shall affect the legal right of Toll to terminate your employment without notice or pay in lieu of notice if you are guilty of misconduct, or dishonesty, or persistently or materially breach the terms and conditions of your employment or commit any other act or omission which justifies summary termination. 1.4 You will perform all acts, duties and obligations usually associated and consistent with your job title and position description and comply with all lawful directions given to Toll. Toll may assign you to undertake the duties of another position, either in addition to or instead of your normal duties, it being understood that you will not be required to perform duties which are not reasonably within your capabilities. In addition, Toll may require you (as part of your duties of employment) to perform duties or services for any related body corporate where such duties or services are of a similar status to or consistent with your position with Toll. If there is a change in your position or in your responsibilities, your terms and conditions of employment will remain the same except where specific variations are agreed. That offer was accepted by Mr Tomvald on 17 October 2012. 62 To the extent that an inference can be drawn from such an incomplete account of the offers of employment made to Mr Tomvald, and to the extent that the terms upon which Mr Tomvald was "engaged" are conclusive, it is concluded that Mr Tomvald was initially engaged as a casual employee. 63 It is further concluded that Mr Tomvald remained a casual employee throughout his employment with any one or other of the Toll Group of companies. Separate from any consideration given to the terms upon which he was engaged, the substance of his employment, on balance, has the character of casual employment and not permanent employment. 64 In reaching that conclusion, reliance has been placed (inter alia) upon Mr Tomvald's own assessment of the character of his employment. This was an issue pursued in his cross-examination on a number of occasions. It suffices to refer to the following exchange between Mr Tomvald and Counsel for Toll Transport. At the outset, Mr Tomvald was taken to the October 2012 letter and there was the following exchange: So as far as you're aware, Mr Tomvald, the only formal letter which spoke of terms and conditions really goes back to the letter which was dated 2012 that I took you to earlier? - Yes. And you understood that those terms and conditions continued to apply to your engagement within the IPEC business division? - Yes, sir. And, in fact, you continued to receive the casual rates that applied under whatever agreement applied to your employment? - Yes, sir. … And you've continued to work during that whole period as a casual freight handler? - Yes, sir. He was then taken to his second affidavit and questioned as to his reasons for seeking permanent employment as follows: If I can just ask you to go to paragraph 7, you talk there about the reason why you were keen on a permanent job and you say, "Even though I knew that that would mean I would lose my 25 per cent casual loading" - so it was clear in your mind that, as a casual employee, you were getting this additional loading on top of whatever rates might have applied? - Yes, sir. And, in your mind, the real concern was that while the going was good for a long period of time, you understood that as a casual, to quote your words, "I can lose my job at any time"? - Yes, sir. And I don't have to be paid a redundancy? - Yes, sir. And, indeed, that was your understanding also back at 2007 when you were first engaged as a casual employee? - Yes. And again when you were offered employment on a casual basis with Toll Proprietary Limited in 2012 - again, you had this concern in the back of your mind? - Yes, sir. And that's, you say, a concern that has always been in the back of your mind, including currently? - Yes. That as a casual employee, you stood the risk of losing your job without any notice? - Yes. That you wouldn't get any redundancy? - Yes. A little later Mr Tomvald was taken to his first affidavit and questioned on the topic of the hours he worked as follows: And if I can just come back to the work that you do at Toll - now, paragraph 6 of your first statement, if I can go back to that, you say: I had no finishing time. That would vary depending on the work. Although my hours varied from day to day, I was usually rostered for seven or more hours per shift. Now, I asked you about that a moment ago, but just so that I'm clear, the overtime that you did, there were days when there was no overtime required or offered? - Yes, sir. And there were other days where there may be some overtime required. And if it was offered, you would readily put your hand up for it? - Yes, sir. But at the beginning of each day, you wouldn't know what amount of overtime you may get for that particular shift? - No, sir. And, of course, you understood that for the overtime there were increased rates based on whatever the casual rate applied to you? - Yes, sir. So it was certainly more beneficial to do overtime with those casual rates? - Yes, sir. 65 Although it may be that an employee is under a mistaken apprehension as to the status of his employment and mistakenly believes that he is a casual and not a permanent employee, there was no such uncertainty or mistaken apprehension in the mind of Mr Tomvald. He recognised that he was a casual employee whose hours of work depended upon the availability of work and he was, moreover, content to be a casual employee because of the increased rates of pay that were payable to such employees. 66 Although other facts may have supported a case that he was a permanent employee, such as the manner in which his applications for leave were processed, it is concluded on balance that Mr Tomvald was a casual employee, including from the time when he was employed by Toll Transport from 1 July 2015.

THE RIGHT TO CONVERT FROM CASUAL TO PERMANENT EMPLOYMENT 67 Albeit the last of the contraventions pleaded, it was the ninth contravention which assumed primary importance for Mr Tomvald. 68 The ninth contravention alleged by Mr Tomvald is that Toll Transport refused to convert his employment to permanent employment "on a like-for-like basis". This allegation obviously assumes that there is a right on the part of Mr Tomvald to convert his employment from casual to permanent and seeks to focus specific attention upon both the source of that right and the nature of the permanent employment to which he says he is entitled. 69 Paragraphs [29] through to [48] of the Further Amended Statement of Claim set forth the contraventions alleged. Paragraph [48] pleads as follows (without alteration): Contravention 9: failure to convert on a like-for-like basis 48. By refusing to convert the Applicant's employment to permanent employment working the same hours he worked during the twelve months prior to 18 May 2016, Toll Transport contravened clause 21(e) of the Agreement and 12.6 of the Award (as incorporated into the Agreement by clause 6(a) of the Agreement). The principal relief sought, as set forth in the Further Amended Statement of Claim, is a declaration that "Toll Transport is obliged to convert the Applicant's employment to full-time permanent employment". An order is also sought for the payment of compensation and an order for the imposition of penalties. 70 The claim by Mr Tomvald is that Toll Transport has not complied with the right conferred by cl 21(e) of the Enterprise Agreement and cl 12.6 of the Award and thereby contravened s 50 of the Fair Work Act. Any penalty imposed should, he maintains, be made payable to him. 71 It is concluded that cl 21(e) does confer a right to convert to full-time permanent employment. Permanent full-time employment is employment for a period of 38 hours per week. Mr Tomvald sought to exercise that right on 25 May 2016 and was wrongfully denied the employment to which he was entitled when Mr Jones emailed Mr Selig on 27 May 2016 offering permanent employment of 30 hours per week. The offer made to Mr Tomvald, accordingly, fell short of offering him the full-time permanent employment of 38 hours per week to which he was entitled.

The source of the right to convert 72 The source of the right to convert from casual employment to permanent employment is identified by Mr Tomvald as being found in cl 21(e) of the Enterprise Agreement and cl 12.6 of the Award. 73 There is one obvious difference between the two clauses. 74 Clause 21(e) of the Enterprise Agreement provides for a right of election "where a casual Transport Worker has been directly employed by Toll … on a regular and systematic basis for more than 6 months". Clause 12.6(a) of the Award refers to a "right to elect" conferred on a "casual employee, other than an irregular casual employee who has been engaged … for a sequence of periods of employment under this award during a period of 12 months". 75 But that difference assumes no present relevance. Mr Tomvald had been regularly employed for a period in excess of twelve months when he sought to exercise the right to covert.

The facts - the hours worked 76 Mr Tomvald's position is that it was on 25 May 2016 that he insisted upon his right to convert from a casual position to a permanent position. It was also his position that if an analysis is undertaken of his work with Toll Transport in the period prior to May 2016, that analysis exposes the fact that: he worked most days from Monday to Friday, exceptions being in respect to public holidays and a period of about five weeks when he was on leave and taking a holiday in Europe; on average he worked an 8 hour shift commencing at 4.00am; and with very limited exceptions he worked at the premises of Toll Transport at the Bungarribee facility, the exceptions being isolated occasions on which he was required to work at a different location, being the Sharp location. 77 Based upon information provided by Toll Transport, Mr Selig - the godfather of Mr Tomvald and a consultant with the Workplace Advisory Group - calculated that during the period from 18 May 2015 to 13 May 2016, Mr Tomvald worked 1,753.3 hours in total over 211 shifts. Mr Selig then performed the following calculation: This calculation exposed the average number of hours said to have been worked per shift and excluded from the calculation the days Mr Tomvald did not work, being days such as public holidays, days when he was absent and days when he was on leave. Mr Selig also calculated that the average number of ordinary hours worked per shift was 7.2 hours. 78 But Mr Selig's calculations may be left to one side. 79 It was during the course of final submissions that concurrence was reached between the parties as to the "raw facts" of relevance to the hours worked. A table was helpfully prepared which set forth what was agreed between the parties as to the hours worked for the 12 month period prior to May 2016, namely: Total hours 1,770.80 Total ordinary hours 1,570.60 Total shifts (excl. OT shifts) 210

Per shift Average hours per shift 8.43 per shift Average ordinary hours per shift 7.48 per shift

Per week Average hours per week (52 weeks) 34.05 per week Average ordinary hours per week (52 weeks) 30.20 per week

Per working week Average hours per week (46 weeks) 38.5 per week Average ordinary hours per week (46 weeks) 34.14 per week

This table, it will be noted, shows the total number of ordinary hours worked and the total number of shifts as being 210 (rather than 211). The table substantially corroborates the account given by Mr Tomvald as to the hours and regularity of the work he performed.

A like for like basis 80 It is against this factual background and the terms of cl 21(e) of the Enterprise Agreement that the offer made to Mr Tomvald is to be considered. 81 The offer as initially contemplated in the letter dated 18 May 2016 seeking "Expressions of Interest for Permanent Part-time Positions" was an offer for positions "made up of 4 hour, 5 hour and 6 hours shifts". The offer as ultimately made to Mr Tomvald, as communicated in an email sent on 27 May 2016 was for "30 hours a week" which was said to be "in line with Cl. 21(e) of the Toll Group - TWU Enterprise Agreement and the award". 82 The basis upon which "expressions of interest" were first sought and the subsequent offer were made and the calculations undertaken by Toll Transport at the time the offer was made need to be revisited when consideration is given to whether Toll Transport made the offer "because" of the exercise of any "workplace right". For present purposes, what matters is whether the offer as made was in accordance with the entitlement conferred by cl 21(e). 83 It is concluded that the offer did not reflect the right conferred by cl 21(e) to convert to permanent employment on a "like for like basis". 84 Clause 21(e) is not a clause without difficulty of construction, not the least of which is the meaning to be ascribed to the phrase "a like for like basis". 85 No difficulty of application arises in respect to the introductory terms of cl 21(e). At the time he sought to exercise the right to convert, Mr Tomvald had been "directly employed by Toll ... to perform work for Toll on a regular and systematic basis for more than 6 months". 86 Nor is there difficulty in accepting that the clause conferred a right to "elect to become a permanent Transport Worker". 87 Some initial difficulty is encountered by reason of the fact that neither the Award nor the Enterprise Agreement defined "permanent Transport Worker". Clause 12 of the Award set forth the three bases upon which an employee may be engaged, being "full-time, part-time or casual", under the heading "[t]ypes of employment". A full-time employee was there defined as "an employee who is engaged to work an average of 38 ordinary hours per week". But cl 12 did not refer to a position described as a "permanent Transport Worker". The reference to 38 hours per week, however, has a parallel in cll 3 and 22 of the Enterprise Agreement, which define a "Permanent Part-Time Transport Worker" as (inter alia) one who is rostered to work less than 38 hours per week. Clause 3 of the Enterprise Agreement defines the phrase "Transport Workers" but does not define "permanent Transport Worker". 88 Notwithstanding such limited ambiguity as may be occasioned by the absence of an express definition of the phrase "permanent Transport Worker", it is readily apparent that such a person is an employee who is not a casual employee and who works not less than 38 hours per week. 89 The concluding phrase found within cl 21(e), namely "in accordance with the Award", also presents some difficulty. Clause 12.6 of the Award also addresses "[c]onversion of casual employment". That clause sets forth both procedural and substantive provisions addressing both the procedure to be followed (e.g., cl 12.6(b)) and the substantive right to convert (cl 12.6(a)). But that to which the right conferred by cl 21(e) is qualified is expressed to be "the Award" as a whole. The right to convert conferred by cl 21(e) of the Enterprise Agreement, it is concluded, covers the field as to the right to convert to the exclusion of cl 12.6. Other than providing some limited assistance as to the meaning of the phrase "permanent Transport Worker" employed in cl 21(e), the concluding phrase within cl 21(e) has little other work to do. 90 The greatest difficulty of construction, and the difficulty which consumed the bulk of oral submissions, was the meaning to be given to the phrase "like for like". That phrase is not defined. 91 Casual employees, like Mr Tomvald, were persons who did not have the security of a permanent position and who were subject to employers choosing to offer either work or no work and were persons who could choose to work if they so wished (cf. Reed v Blue Line Cruises Ltd (1996) 73 IR 420). Casual employees were also employees who (inter alia): received a salary loading not received by permanent employees; and were not entitled to holiday leave or sick leave. A "like for like" conversion from casual employment to a permanent position, obviously enough, required some transition from the rights and entitlements of a casual employee to those of a permanent employee. A "like for like" conversion would not entitle a casual worker to take with him all of those rights and entitlements which casual workers possess but which are not possessed by a permanent worker. Conversely, conversion from the position of a casual employee to that of a permanent employee would carry with it some new and additional benefits that were not possessed by casual employees. 92 Subject to such general observations, it is considered imprudent to attempt any rigid definition of the phrase "like for like". The phrase is to be interpreted in the same manner as other provisions of an industrial agreement, namely "with a practical bent of mind" and in the manner which it was "likely to have been understood in the context of the relevant industry": Kucks v CSR Ltd (1996) 66 IR 182 at 184 per Madgwick J. The phrase is to be understood as requiring a comparison between the nature and extent of the work previously performed by a casual employee with that of a permanent employee performing much the same work. It is a phrase which necessarily has to be applied to the facts and circumstances of each individual employee and the workplace in which work is performed. 93 Although a mathematical calculation (such as that performed by Mr Selig) may help to inform the application of the phrase to the facts of a particular employee, at the end of the day it remains a matter for practical judgment. 94 On the facts of the present case, the nature and extent of the ordinary hours worked by Mr Tomvald was that of an employee who regularly worked a little less than 8 ordinary hours per shift and about 34 hours per week. If reference is made to the actual number of hours worked, being ordinary hours together with overtime, he worked a little more than 8 hours per shift and a little more than 38 hours per week. For the purpose of these calculations, the average weekly hours worked are calculated on the basis of Mr Tomvald working 46 weeks per year, which is considered appropriate given that a casual worker is not entitled to sick leave or holiday leave. A permanent employee who takes sick leave and holiday leave would also work for 46 weeks per year. 95 The comparison, it is accepted, may not be mathematically precise. But mathematical precision is not required. It is a tool which merely assists in reaching an informed decision when comparing competing positions. Nor should it be expected, in an industrial context, that a detailed auditing of actual hours worked be undertaken before reliance can be placed upon cl 21(e). 96 To meet the requirements of cl 21(e) to convert his employment on a "like for like" basis, Mr Tomvald was entitled to a permanent full-time position. 97 A position which offered "4 hour, 5 hour and 6 hour shifts" fell short of that entitlement. On any view of the facts, Mr Tomvald was regularly working Mondays to Fridays for periods in excess of 6 hours per shift. 98 The right which is conferred upon an employee by cl 21(e) is not to be constrained by that which an employer may be prepared to offer. Clause 21(e) confers a valuable right upon a casual employee who can bring himself within the benefit of that clause. That right is not merely a right to convert to a permanent position; it is also a right to convert to a permanent position on a "like for like basis". It is not a matter within the sole province of an employer to offer less than the right conferred. 99 No case was sought to be advanced that a permanent full-time position was not available for Mr Tomvald.

The contravention of s 50 100 Toll Transport has contravened cl 21(e) of the Enterprise Agreement. 101 The contravention of s 50 of the Fair Work Act has, accordingly, been made out. 102 Having resolved the principal matter dividing the parties, namely Mr Tomvald's right to "covert" and the last of the contraventions of the Fair Work Act relied upon, it is nonetheless necessary to consider the remaining contraventions.

NOTIFICATION 103 The first of the contraventions alleged by Mr Tomvald asserts a failure to notify him of the provisions of cl 21(e) of the Agreement and cl 12.6 of the Award. 104 Paragraph [29] of the Further Amended Statement of Claim thus pleads as follows (without alteration): Contravention 1: failure to notify of conversion rights 29. Toll Transport did not notify the Applicant in writing of the provisions of clause 21(e) of the Agreement and 12.6 of the Award (as incorporated into the Agreement), after six months' regular and systematic employment. This pleading should be considered in the context of the relief claimed in para [52(a)] of the Further Amended Statement of Claim. That paragraph sought declaratory relief expressed as follows (again without alteration): Declarations that Toll contravened: (a) section 50 of the FW Act, clause 21(e) of the agreement and clause 12.6 of the Award (as incorporated into the Agreement by clause 6(a) of the Agreement) by failing to notify the Applicant of the provisions of clause 21(e) of the Agreement and 12.6 of the Award (as incorporated into the Agreement by clause 6(a) of the Agreement) after six months' regular and systematic employment; 105 Clause 12.6(a) of the Award provides for the "right to elect"; cl 12.6(b) provides that an "employer … must give the employee notice in writing … within four weeks of the employee having attained such period of 12 months", 12 months being the period after which the right to convert accrued under the Award. 106 This contravention, as frankly acknowledged by Counsel on behalf of Mr Tomvald, placed him in a dilemma: if the right to convert is that conferred by cl 21(e) of the Enterprise Agreement, cl 12.6 of the Award assumes little (if any) relevance and the alleged first contravention would most probably fail; if the "right to elect" is that conferred by cl 12.6 of the Award, cl 12 remains the operative source of the entitlement to convert and the alleged first contravention remains "in play". 107 If forced to make a choice, Counsel for Mr Tomvald submitted that he would prefer to place reliance upon cl 21(e) of the Enterprise Agreement and lose the allegation of a failure to notify in accordance with cl 12.6(b) of the Award. 108 Any incorporation of the Award into the Enterprise Agreement is to be found either in: clause 21(e) itself; or in clause 6 of the Enterprise Agreement. 109 Counsel for Mr Tomvald chose well. It has been concluded that cl 21(e) of the Enterprise Agreement covers the field with respect to the right to convert to the exclusion of cl 12.6. 110 No question thus arises as to any requirement imposed upon Toll Transport by cl 12.6(b) of the Award to "give the employee notice in writing of the provisions of this clause". Neither cl 21(e) nor cl 6 of the Enterprise Agreement should be construed as incorporating the procedural requirements imposed by cl 12.6(b) but not the substantive right to convert. 111 The first contravention has thus not been made out.

THE FAILURE TO PROVIDE EMPLOYEE RECORDS 112 The second of the contraventions alleged by Mr Tomvald was that Toll Transport did not produce time and wage records. 113 Paragraphs [22], [25] and [27] of the Further Amended Statement of Claim pleaded as follows (without alteration): 22. On around 20 May 2016 the Applicant informally requested copies of his time and wages records. Particulars Conversation between the Applicant and Mr Heath Parkiner (Toll Transport supervisor) and conversation between the Applicant and the Ms Tamara Green. … 25. On 25 May 2016 the Applicant made a written request under clauses 3.42 and 3.43 Fair Work Regulations 2009 (Cth) (FW Regulations) for the time and wages records required to be kept pursuant to section 535 of the FW Act (the Records). Particulars Email from the Applicant's representative to Ms Tamara Green dated 24 May 2016. … 27. By requesting the Records, the Applicant: (a) exercised his workplace rights under clauses 3.42 and 3.43 of the FW Regulations; and/or (b) made a complaint or an enquiry in relation to his employment. Paragraph [52] of the Further Amended Statement of Claim seeks a declaration that Toll Transport contravened "regulations 3.42 and 3.43 of the FW Regulations by failing to produce the Records". Paragraph [58] seeks (without alteration) an order "under s546(1) of the FW Act that Toll Transport pay civil penalties in respect of its contraventions identified paragraph 52 above". 114 It is concluded that there has been a contravention of : reg 3.42 - no records as to overtime hours worked were produced as required by reg 3.34 of the Fair Work Regulations 2009 (Cth) (the "Fair Work Regulations"); and reg 3.43 - Mr Tomvald was not told where a copy of his employment records were kept and that: the circumstances in which the request was made by Mr Tomvald and what he was told are relevant to an assessment as to the penalty to be imposed.

The Fair Work Act & Regulations 115 The requirement to keep "employee records" and the right to be provided with a copy of such records on request is set forth in the Fair Work Act and the Fair Work Regulations. 116 Section 535 of the Fair Work Act provides that an employer must keep records "of the kind prescribed by the regulations". 117 Regulation 3.32 of the Fair Work Regulations provides for the content of "employee records" as follows: Records - content For subsection 535(1) of the Act, a kind of employee record that an employer must make and keep is a record that specifies: (a) the employer's name; and (b) the employee's name; and (c) whether the employee's employment is full-time or part-time; and (d) whether the employee's employment is permanent, temporary or casual; and (e) the date on which the employee's employment began; and (f) on and after 1 January 2010 - the Australian Business Number (if any) of the employer. Regulation 3.33 provides as follows: Records - pay (1) For subsection 535(1) of the Act, a kind of employee record that an employer must make and keep is a record that specifies: (a) the rate of remuneration paid to the employee; and (b) the gross and net amounts paid to the employee; and (c) any deductions made from the gross amount paid to the employee. (2) If the employee is a casual or irregular part-time employee who is guaranteed a rate of pay set by reference to a period of time worked, the record must set out the hours worked by the employee. (3) If the employee is entitled to be paid: (a) an incentive-based payment; or (b) a bonus; or (c) a loading; or (d) a penalty rate; or (e) another monetary allowance or separately identifiable entitlement; the record must set out details of the payment, bonus, loading, rate, allowance or entitlement. No reliance is currently placed upon regs 3.32 and 3.33. 118 The Regulation which assumed prominence is reg 3.34 which provides as follows: Records - overtime For subsection 535(1) of the Act, if a penalty rate or loading (however described) must be paid for overtime hours actually worked by an employee, a kind of employee record that the employer must make and keep is a record that specifies: (a) the number of overtime hours worked by the employee during each day; or (b) when the employee started and ceased working overtime hours. 119 Regulation 3.42 of the Fair Work Regulations, and one of the two Regulations referred to in para [25] of the Further Amended Statement of Claim, provides as follows: Records - inspection and copying of a record (1) For subsection 535(3) of the Act, an employer must make a copy of an employee record available for inspection and copying on request by the employee or former employee to whom the record relates. (2) The employer must make the copy available in a legible form to the employee or former employee for inspection and copying. (3) If the employee record is kept at the premises at which the employee works or the former employee worked, the employer must: (a) make the copy available at the premises within 3 business days after receiving the request; or (b) post a copy of the employee record to the employee or former employee within 14 days after receiving the request. (4) If the employee record is not kept at the premises at which the employee works or the former employee worked, the employer must, as soon as practicable after receiving the request. (a) make the copy available at the premises; or (b) post a copy of the employee record to the employee or former employee. Regulation 3.43, the other Regulation referred to in para [25] of the Further Amended Statement of Claim, provides as follows: Records - information concerning a record (1) An employer who has been asked by an employee or former employee to make a copy of an employee record available for inspection must tell the employee or former employee, on request, where employee records relating to the employee or former employee are kept. (2) The employee or former employee may interview the employer, or a representative of the employer, at any time during ordinary working hours, about an employee record that the employer has made or will make. 120 Section 535 of the Fair Work Act and Regulations 3.42 to 3.43 of the Fair Work Regulations had their counterpart in s 353A of the Workplace Relations Act 1996 (Cth) and Pt 9A of the Workplace Relations Regulations 1996 (Cth). The former Act and Regulations, it has been said, imposed a "similar regime" with respect to employment records: Fair Work Ombudsman v Complete Windscreens (SA) Pty Ltd [2016] FCA 621 at [298] per Besanko J. The requirements imposed by s 535 of the Fair Work Act and the current Regulations provide "an important means of guarding against the exploitation of vulnerable workers": cf. Fair Work Ombudsman v Grouped Property Services Pty Ltd (No 2) [2017] FCA 557 at [548] per Katzmann J.

The requests made & the response 121 The fact of the contravention is made out simply by reference to the fact that a request was made and no record was produced which exposed the overtime hours worked. Nor was Mr Tomvald told where available records were kept. 122 But the reasons why the request was made and the manner in which that request was responded to assumes relevance to the assessment of the penalty to be imposed. 123 The informal request referred to in para [22] of the Amended Statement of Claim was said to have been made during a conversation between Mr Tomvald and his supervisor (Mr Parkin) and a conversation between Mr Tomvald and Ms Green (a Human Resources Business Partner at Toll Transport). 124 On Mr Tomvald's account, the conversation with Ms Green occurred on the afternoon of 23 May 2016 and proceeded as follows (without alteration): Tomvald: Could I see my employment records so I can check on my hours? Green: You should go and check the hours that appear on your payslips. Tomvald: I don't have all my payslips. That's why I need to my records because I can't check my hours. I think I've been doing more than 6 hours every day. Green: Your payslip has that information. Tomvald: But I don't have them all. Green: Well that's your problem. You should keep them so you can check things like this. Ms Green's account was different. Her account was as follows (without alteration): Tomvald: Can I look at my pay records? I want to check what my hours have been. Green: Your hours are shown on your payslips. If you check your payslips you will see your hours worked. I suggest you speak to supervisor about what exactly you are after. Tomvald: Okay. When cross-examined as to the different account given by Mr Tomvald, including whether she had told Mr Tomvald "that's your problem", Ms Green said "I can't recall". 125 In such circumstances, Mr Tomvald's account of the conversation between Mr Tomvald and Ms Green on 23 May 2016 is accepted. 126 As referred to in para [25] of the Further Amended Statement of Claim, the email from Mr Selig to Ms Green on 25 May 2016 attached a letter from Mr Tomvald dated 24 May 2016 which provided in relevant part as follows: I, Joshua Wayne Tomvald, hereby appoint Mr Greg Selig of Workplace Advisory Group as my representative and agent in relation to all matters arising out of my employment and in particular the access to my employment records and my election to take up a permanent employment position with the Toll Group (the Company). I specifically authorise Mr Selig to exercise my rights arising under Regulation 3.42 of the Fair Work Regulations 2009 (the Regulations) to inspect and copy any employee record relating to my employment, on my behalf. For this purpose could you please provide Mr Selig, on my behalf, with the following documents for the preceding 12 months period from the date of this letter: • Records of all hours worked by myself for the Company including but not limited to time sheets, daily registers, and site diaries that recorded the hours that I worked. I draw your attention to Regulation 3.33 (2) of the Regulations which states that if an 'employee is a casual or irregular part-time employee who is guaranteed a rate of pay set by reference to a period of time worked, the record [that the employer must make and keep] must set out the hours worked by the employee'; and • All payslips issued to me during the course of my employment with the Company. I further ask that you inform me of the location where these records are kept as per Regulation 3.43(1) of the Fair Work Regulations 2009. In the event that my employment records are not kept at the premises of …, I request that you either; a) advise me of when they will be made available for inspection and copying at the abovementioned address; or b) Alternatively, that you post them to the offices of Workplace Advisory Group located at …, within 14 days of receiving this letter. While the Regulations make it a requirement that you post these records, I would also accept the documents be sent via email to Mr Selig at the following email address - …; by the same date. The text of this letter, it will be noted, follows very much the terms of the Fair Work Regulations. 127 On 26 May 2016, namely the day after Ms Green was sent Mr Tomvald's notification that he had appointed Mr Selig as his representative, Mr Selig sent an email to Mr Jones, a Human Resource Administrator at Toll Transport, and "copied in" (inter alia) Ms Green on that exchange. The 26 May 2016 email (sent at 4.10pm) stated that the "purpose of obtaining [Mr Tomvald's] hours is to determine what his average hours are, and then have discussions with the company about a position based upon those hours". 128 When being pursued by his cross-examiner as to whether Mr Tomvald was in a position to assess whether the offer made to him was on a "like for like" basis, Mr Jones accepted that he well knew why Mr Tomvald was seeking access to his records. Of present concern, however, is the character of the information in fact available and the information in fact provided by Toll Transport. 129 As to the character of information available, Toll Transport had readily available to it information which disclosed the ordinary and overtime hours worked by Mr Tomvald. This issue was pursued in Mr Jones' cross-examination as follows: Now, you understand that where a worker is paid an overtime loading, the employee records that Toll is obliged to keep include overtime hours worked each day? - That we're supposed to keep records of their overtime worked? Yes? - Yes. And you understand that an employee is entitled to access those records overtime worked each day? - Overtime worked each day. Overtime worked? Yes? - Yes. You understand that? - I understand an employee is entitled to receive their records of overtime and ordinary time worked. Okay. Now, you understood, from what Mr Selig had written to you, that the statement of earnings that you had already provided was inadequate for his purposes? - That my - sorry. Can you repeat that question? You understood from the emails that Mr Selig had sent you that the statement of earnings report which you provided wasn't enough? - That was his interpretation. Yes. And you had a different interpretation? - Yes. And, as far as you were concerned, whatever you thought he should have is what he was going to get? - I provided a full, full document including all hours worked by Mr Tomvald for the entire period of his employment with IPEC. You never provided any document which set out his overtime hours worked each day? - No. I did not. Not on a daily basis. No. You did not provide any document which set out his hours worked each day? - No. And you didn't tell him that those documents were available on Preceda? - I don't recall. You just decided that he didn't need the records so you weren't going to give them to him? - I provided the records - I provided a full summary of the records that were made available to me. The documents that you provided were the document that appears at 1601 and following? - Statement of earnings. Yes. "Preceda" was Toll Transport's payroll and human resources software. 130 An extract of the documents headed Statement of Earnings Report, as referred to in the above exchange, provided (inter alia) the following information: P/E Date Gross Tax Net Tax Weeks Pay Separator 31/05/2015 $1270.40 $401.00 $833.56 1.00 Standard Code Description Units Rate Amount Hours 01 Ordinary 29.80 $32.53 $969.33 02 O/T 1.5 3.10 $45.04 $139.62 03 O/T 2.0 0.40 $60.05 $24.02 58 Sft12.5% 29.80 $4.07 $121.17 79 Crib 1.5 1.00 $16.26 $16.26 Allowance/Deduction CZ Meal Allow 1 A/T 1.00 $14.62 $14.62 DV In/Prot NSW% A/T 1.00 $32.13 -$32.13 OM Company Super% 1.00 $103.60 $103.60 SD Social Club NSW 1.00 $5.00 -$5.00 SW Adco Super HOA% 1.00 $32.72 $32.72 UH TWU NSW 1.00 $13.33 -$13.33

But the deficiencies in this information as provided to Mr Tomvald was exposed by the following cross-examination of Mr Jones: Now, you understand that this document was insufficient to allow Mr Tomvald to properly assess his patterns of work over his time at Toll IPEC? - No. I don't believe so. Okay. Well, let me give you some examples. You see the entry for P/E date 31.05.2015? - Sorry. Repeat the date for me. Page 1604, you see the first P/E…? - Yes. Twenty - yes. …is period ending, is it? - Yes. 24 May 2015. Yes. That's the first one. If you look at the second one, 31 May 2015? - Yes. So ordinary hours, 29.8. Do you see that? - Yes. I can. Right. Now, how many shifts did Mr Tomvald work in that week? - I - I don't know. Do you know whether he worked five, six hour shifts or some other number of shifts? - No. I do not. You don't know whether he worked three ten-hour shifts? - I do not. Five six-hour shifts? - No. The same exercise was undertaken with respect to other dates and the same difficulties identified. 131 Ms Green was also aware that a copy of the payslips could be accessed through "Preceda" - but she failed to tell Mr Tomvald of this possibility. During her cross-examination she was thus taken to the fact that Mr Tomvald had approached his supervisor, Mr Parkin, with a view to getting a copy of his payslips but was told by Mr Parkin that he did not "do pay slips; you had better speak to HR". The cross-examination continued: And can you just assume for me that Mr Parkin said, in response to a request from Mr Tomvald for pay slips, "I don't do pay slips; you had better speak to HR". Just assume that fact for me? - Okay. Are you able to offer any explanation as to how that might be the case, if you had, in fact, set up a system of the kind you describe at paragraph 14? - No. I cannot. Now, you didn't say to Mr Tomvald, "You can get your pay slips through this Preceda system that we have"? - No. I did not. You could have told him that? - I could have. Yes. And you could have obtained the pay records yourself? - Yes. And you chose to do neither of those things because you had no intention of being helpful at all to Mr Tomvald? - Incorrect. 132 As a general observation, it should be noted that Ms Green did not present as a witness who was overly anxious to assist Mr Tomvald. Mr Jones also presented as a witness who was not overly anxious to assist the Court and a witness who was certainly not overly anxious to assist Mr Tomvald. 133 It is concluded that: Toll Transport was aware of the reasons why Mr Tomvald was seeking access to his wage records; Toll Transport had available to it information which was readily available on "Preceda" and which would have placed Mr Tomvald in a position whereby he could have undertaken an analysis of the ordinary hours of work he had previously performed on a daily basis and thereby make an informed decision as to whether the positions offered by Toll Transport were on a "like for like" basis; Mr Tomvald was not told of the availability of the records on "Preceda"; and the information which was in fact provided to Mr Tomvald was not sufficient to enable a meaningful comparison to be undertaken. More fundamentally, and of more immediate relevance, it is further concluded that: the response provided by Ms Green that it was Mr Tomvald's "problem" that he had not kept his payslips was peremptory and a statement made in total disregard of his right to be provided with the records he sought; and Toll Transport did not provide a copy of the records as sought in the letter dated 24 May 2016 and sent to Ms Green on 25 May 2016. 134 The second of the contraventions advanced by Mr Tomvald, it is concluded, has been made out.

THE TAKING OF ADVERSE ACTION 135 The third and fourth contraventions alleged by Mr Tomvald allege the taking of adverse action contrary to s 340 of the Fair Work Act. Section 340 prohibits the taking of "adverse action ... because" (inter alia) of the exercise of a "workplace right". 136 For the purposes of s 340(1)(a), Mr Tomvald alleges that he exercised "workplace right[s]" as that phrase is defined in s 341(1), including (inter alia): appointing a representative to represent him; accessing or attempting to access a benefit under the Enterprise Agreement, namely the right to convert to permanent employment on a "like for like" basis; making a complaint or enquiry in relation to his employment; and initiating or participating in a dispute settlement process. These "workplace rights" are pleaded in paras [22] through to [28] of the Further Amended Statement of Claim. 137 Paragraphs [31] to [40] plead the third and fourth alleged contraventions as follows: Contraventions 3 and 4: adverse action 31. On 9 June 2016 Toll Transport directed the Applicant to work no more than five hours per shift. 32. Other workers employed in the same position and at the same site as the Applicant were not subject of the same direction capping their hours. 33. Toll Transport did not offer any explanation for its direction capping the Applicant's hours. 34. In capping the Applicant's hours at five hours per shift, Toll Transport altered the Applicant's position to his prejudice. 35. Toll Transport capped the Applicant's hours at five hours per shift because of his exercise of his workplace rights identified at paragraphs 23-28 above. 36. On around 24 May 2016 Toll Transport changed the Applicant's starting time from 4am to 5am. 37. By changing the Applicant's starting time from 4am to 5am, Toll Transport deprived the Applicant of the benefit of an early morning shift loading. 38. In changing the Applicant's starting time from 4am to 5am, Toll Transport altered the Applicant's position to his prejudice. Particulars As a result of the later start the Applicant lost 12.5% of his pay in the form of an early morning shift loading. 39. The starting time of other workers employed in the same position and at the same site as the Applicant were not changed to 5am. 40. Toll Transport altered the Applicant's starting time because of his exercise of his workplace rights identified at paragraphs 23-28 above. 138 The "adverse action" pleaded in paras [31] to [40] may be summarised as: the capping of Mr Tomvald's hours of work at "no more than five hours per shift" ([31] to [34]) and that "Toll Transport capped the Applicant's hours at five hours per shift because of his exercise of his workplace rights" (at [35]); and the change in Mr Tomvald's starting time from 4.00am to 5.00am (at [36] and [37]) which altered Mr Tomvald's position to his detriment (at [38] and [39]) because it deprived him of an early morning shift allowance (at [37]). Toll Transport altered his starting time, so it was alleged, "because of his exercise of his workplace rights" (at [40]). The declaratory relief sought is that in capping the hours of work and changing the starting time there was a contravention of s 340(1) of the Fair Work Act. 139 It is concluded that the claim as to the taking of "adverse action" by reason of Mr Tomvald having exercised one or other of his "workplace rights" fails. Such action as was taken was not taken "because" Mr Tomvald exercised a "workplace right". Fundamental to the resolution of this question was whether Toll Transport took such action as it did against Mr Tomvald, not because of the exercise of any "workplace right", but rather as a commercial decision to reduce labour costs. If the latter reason was the reason for taking the action, Mr Tomvald was but a casualty of a commercial decision being more broadly implemented rather than a person targeted for "special treatment". None of the reasons for either capping Mr Tomvald's hours or changing his starting time included any consideration of the fact that he had exercised any "workplace right". 140 That ultimate conclusion renders it unnecessary to resolve a series of preliminary arguments which were advanced. But some of those arguments should be briefly mentioned in case it be thought they have been overlooked.

A claim as to adverse action properly pleaded 141 A preliminary argument relied upon by Toll Transport in seeking to resist a finding that it had taken action "because" Mr Tomvald had exercised a "workplace right" was that that claim had been improperly and inadequately pleaded. This argument focussed upon both: what were described as the "myriad of workplace rights" relied upon; and the pleadings at paras [35] and [40] of the Further Amended Statement of Claim that action was taken "because of his exercise of his workplace rights identified at paragraphs 23-28 above". A separate argument founded upon the pleadings maintained that: the pleadings at paras [35] and [40] employed the term "because" and did not (for example) plead that such action as was taken had a "disproportionate" impact on Mr Tomvald compared to other employees. 142 Prejudice, it was submitted on behalf of Toll Transport, was occasioned by the failure to identify in the Further Amended Statement of Claim with greater specificity the date upon which each "workplace right" was said to have been exercised. It was only by reference to that date, so the argument ran, that it was possible to determine whether "adverse action" was thereafter taken "because" of the exercise of each right. 143 The substance of the latter limb to the argument, as best as it could be understood, was that Mr Tomvald had to prove that "adverse action" had been taken because he had exercised each and every one of the "workplace rights" identified in paras [23] to [28]; proof that "adverse action" had been taken, for example, because Mr Tomvald had exercised a "workplace right" to request access to employee records but not because of the exercise of the remaining "workplace rights" was - so it was submitted - inadequate. So much followed, so it was submitted, because the draftsman of paras [35] and [40] had elected to prove that the action was taken because each and every one of the "workplace rights identified at paragraphs 23-28" had been exercised. 144 The argument, however advanced, is without substance for either of two reasons, namely: the manner in which paras [35] and [40] are drafted is not susceptible of the construction urged on behalf of Toll Transport. The allegation being advanced as to a contravention of s 340 would be made out if Mr Tomvald was able to establish that the exercise of one "workplace right" was a reason for the adverse action taken; and/or no real difficulty was expressed throughout the hearing as to what issues needed to be addressed or what was relevant evidence to be adduced. No prejudice was suffered, even if it be accepted that the manner in which the pleadings were drafted was open to criticism. Moreover, and to the extent that either Toll Transport (or Mr Tomvald) claimed prejudice, an application to either adduce additional evidence or to amend the pleadings was invited. Indeed, on any view of the pleadings, the factual issues in need of resolution were within a narrow compass. No application to adduce additional evidence or to amend the pleadings was forthcoming. 145 The argument founded upon the draftsman's use of the term "because" is equally without substance. That term was readily to be understood as pleading the requirement imposed by s 340(1) of the Fair Work Act, as that term has been explained in Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32 at [104], (2012) 248 CLR at 535 per Gummow and Hayne JJ.

A variant of the same argument - a claim damned by the pleadings? 146 Another variant of the same argument seizing upon the lack of specificity as to the dates upon which events were alleged to have occurred focussed upon such certainty as was provided by the date on which certain "workplace rights" were said to have been exercised as compared to the pleaded dates on which adverse action was taken. 147 That comparison, so the argument ran, damned the adverse action claim advanced on behalf of Mr Tomvald - at least in part - to failure. 148 The argument was at its best if attention is focussed upon the taking of adverse action pleaded in para [36] of the Further Amended Statement of Claim that Toll Transport had "[o]n or around 24 May 2016 … changed the Applicant's starting time from 4am to 5am". As the taking of that action preceded the pleaded exercise of the "workplace right" on 25 May 2016 to "convert to a 'like-for-like' position" (at para [24]) it was argued that the action of changing Mr Tomvald's start time could not have been taken because he exercised a "workplace right", which was exercised on the following day. The same chronological difficulty potentially arose in respect to the pleaded exercise of the "workplace right" on 25 May 2016 to request access to employee records (at para [25]). The same chronological comparison did not run with respect to the remaining pleaded exercises of "workplace rights". 149 The argument advanced by Toll Transport was at its weakest if a chronological comparison were to be made between the dates upon which the "workplace rights" were said to have been exercised by Mr Tomvald and the date upon which it was pleaded that his hours of work were capped, namely 9 June 2016 at "no more than five hours per shift" (at para [31]). 150 It may be accepted that there is a need for sufficient certainty in the pleadings as to when it is alleged by an employee that he exercised his "workplace rights" so as to enable an employer to know the case sought to be mounted against him. The manner in which Mr Tomvald sought to plead his case was, with respect, less than what may have been expected. 151 But there was no application made prior to the hearing to strike out the pleaded claim either in whole or in part. And there was no prejudice experienced in conducting the case upon the basis of the issues as identified in the pleadings. 152 Any argument that the case as pleaded did not sufficiently identify the "workplace rights" exercised and the adverse action claimed to have been taken because of the exercise of those rights which formed the basis for the relief claimed, is rejected. Thereafter it remained an exercise of considering the evidence going to the issues identified by the pleadings in order to resolve (inter alia): whether Mr Tomvald has made out the claimed contraventions of the Fair Work Act and Regulations and (of present relevance) whether in respect to those allegations as to Toll Transport having taken action because of the exercise of "workplace rights", he has made out an hypothesis consistent with that action being taken for that reason; and whether Toll Transport has discharged its reverse onus of proof if such an hypothesis has been made out.

An hypothesis made out by the facts 153 Albeit proceeding by reference to a selection of relevant events, a very brief chronology or timeline of decision-making is as follows: Date The events unfolding July 2015 Mr Prior directed to reduce labour costs 7 April 2016 Mr Barnard copied in on email from Mr Prior advising that all casual employees on the AM shift were to be limited to a maximum of 4 hours per day unless authorised by Mr Barnard Early May 2016 Mr Barnard met with Messrs Parkin, Settineri and Finocchiaro to discuss the AM operations roster and changing employee hours (including start times) 2 May 2016 Mr Barnard received an email from Mr Prior directing him to adopt a staffing "conversion plan" of 44 permanent employees working 296 hours per week 4 May 2016 Email from Mr Prior forwarded to (inter alia) Mr Barnard advising that he is finalising the hours to be offered to casuals to convert to permanent employment. 10 May 2016 Toll casuals changed to a later starting time 18 May 2016 Mr Tomvald received "[e]xpression of interest" letter offering 4, 5 and 6 hours shifts 19 May 2016 Mr Barnard sent an email to Mr Prior attaching a document setting out hours proposed to be offered to casual employees 23 May 2016 Mr Tomvald informally requested copies of time and wage records from Ms Green 24 May 2016 Mr Tomvald's start time changed from 4.00am to 5.00am 25 May 2016 Mr Tomvald appointed Mr Selig as his representative for the purposes of the dispute Mr Selig sent an email to Ms Green on behalf of Mr Tomvald insisting on his right to convert on a "like for like basis" Mr Selig made a written request on behalf of Mr Tomvald to obtain employee records under regs 3.42 and 3.43 of the Fair Work Regulations 26 May 2016 Mr Jones sent an email to Mr Selig calculating Mr Tomvald's "ordinary hours for the set period" as 29.89038462 hours 27 May 2016 Mr Jones sent an email to Mr Selig offering Mr Tomvald 30 hours per week permanent employment

6 June 2016 Mr Jones sent an email to Ms Green attaching a spreadsheet of hours worked by Mr Tomvald 7 June 2016 Mr Jones sent an email to Mr Barnard attaching a spreadsheet which calculated Mr Tomvald's average ordinary and overtime hours over different time periods. 9 June 2016 Mr Tomvald's hours capped at "no more than five hours per shift". Mr Jones sent an email to Ms Rebecca Mifsud attaching a spreadsheet of Mr Tomvald's average hours and stating that "[b]ased on the current business needs, while maintaining the 'like for like' requirement within the heads of agreement, we are looking to offer Joshua 30 hours a week as permanent part-time" 14 June 2016 Mr Tomvald filed a General Protection Application with the Fair Work Commission

154 If reference is made to this timeline, it is understood that Counsel for Mr Tomvald maintains that the onus imposed upon him to establish an hypothesis consistent with the claims made (cf. General Motors-Holden's Pty Ltd v Bowling (1976) 51 ALJR 235) is satisfied by reason of the coincidence of dates between when he started exercising his "workplace rights" on around 23 May 2016 and the change in his start time on 24 May 2016. Further support for that hypothesis is said to be gained by insistence on his rights under the Enterprise Agreement and the request for employee records on 25 May 2016, the email to Mr Selig on 26 May 2016 advising as to the calculation of ordinary hours worked and the offer of 30 hours per week made on 27 May 2016. All of those events preceded the capping of Mr Tomvald's hours on 9 June 2016 to "no more than five hours per shift". 155 Such facts, it is considered, displace the onus of proof imposed upon Mr Tomvald. 156 However, that conclusion leaves open for resolution upon more detailed analysis whether, on the facts, Toll Transport has discharged the "reverse onus of proof" imposed by operation of s 361 of the Fair Work Act.

The reverse onus of proof & the reduction in labour costs 157 It is concluded that: the adverse action relied upon by Mr Tomvald - the capping of his hours and the change of his start time - were the result of the more generally expressed commercial objective of Toll Transport to reduce its labour costs. The adverse action was not a result of Mr Tomvald having exercised any "workplace right". Even if it were to be found that Mr Tomvald had been affected more than other casual employees by the implementation of the workplace changes, it is further concluded that: the extent to which Mr Tomvald may have been treated more prejudicially was not "because" of his having exercised any "workplace right". Toll Transport has, accordingly, discharged the onus of proof imposed upon it by s 361 of the Fair Work Act. For the purposes of s 361, it is concluded that Toll Transport has "prove[d] otherwise" and the presumption that it took action for the reason or with the intent alleged by Mr Tomvald is rebutted. The claims as to adverse action thus fail. 158 Irrespective of any conclusion as to the exercise of any "workplace right" identified in paras [22] to [28] of the Further Amended Statement of Claim, such action as was taken by Toll Transport was taken "because" it was trying to give effect to the decision taken in July 2015 to reduce labour costs at the Bungarribee facility. Such action as was taken, it is further concluded, was not taken "because" (for example) Mr Tomvald sought to exercise the "workplace right" of appointing a representative (at para [23]) or because he sought access to "employee records" (at paras [22] and [25]). Although it is separately concluded that Toll Transport has contravened regs 3.42 and 3.43 of the Fair Work Regulations and ss 50 and 345 of the Fair Work Act, the exercise of "workplace rights" and the facts surrounding those contraventions formed no part of the decision-making process to either cap Mr Tomvald's hours or to change his start time. 159 The table setting forth in rudimentary form the chronology of the events as they unfolded nevertheless needs to be considerably supplemented to more fully set forth the way in which Toll Transport was proceeding to implement its commercial objective. 160 The fact that Toll Transport was seeking to reduce labour costs, it must be recognised at the outset, was not put in dispute. 161 What did factually divide the parties was Mr Tomvald's more specific allegations that: the casual employees at the Bungarribee facility had their hours of employment affected to a greater extent than the permanent employees; and, even more importantly that: within that group of casual employees, Mr Tomvald was affected to a greater extent than the others. Whatever may have been the more general commercial objective being pursued by Toll Transport, it was Mr Tomvald's case that the manner in which he was treated exposed the fact that it was the exercise of his "workplace rights" which was the real reason - or, at least, one of the reasons - why his hours were capped and his start time changed. The case advanced by Toll Transport was that any decision taken in respect to Mr Tomvald was taken - not for any reason attributable to his having exercised a "workplace right" - but rather as a consequence of the more generally expressed corporate objective of reducing its labour costs. 162 It is, accordingly, unnecessary to refer in any great detail to the facts concerning the corporate objective of reducing labour costs. But it is necessary to set forth at least an outline of those facts in order to assess Mr Tomvald's more specific allegations. 163 At a general level, it is sufficient to note that the then Sydney Operations Manager (and National Country Operations Manager from June 2016) for Toll Transport, Mr Phil Prior, had been instructed in about July 2015 to make changes to the workforce at the Bungarribee facility to reduce labour costs by approximately $1.2 million. This required a reduction of about $25,000 or 500 hours per week. Rather than imposing forced redundancies, Mr Prior looked more broadly at the business operations at Bungarribee with an overall view as to how best to make structural adjustments to achieve cost reductions. On a number of occasions in late 2015 and early 2016, Mr Prior held meetings both at a management level and at an employee level to canvass the contemplated changes. These meetings were held on: 17 September 2015; 19 April 2016; mid-May 2016; and 22 June 2016. 164 The meetings held on 17 September 2015 was a meeting with Mr Prior's "direct reports" and then with the permanent employees in the handling department, with separate sessions held between AM and PM shifts. During this meeting, Mr Prior addressed issues including: shift changes such as shift starting times changing from 6 October 2015; seeking expressions of interest for voluntary redundancies from permanent full-time employees; and commencing the recruitment process for permanent part-time positions. It was in late 2015 that Mr Prior formed the view that "there was a level of casualisation of the workforce that was not cost effective for the business moving forward". As a result, Mr Prior "started considering alternative models that removed or reduced the reliance on a casuals workforce and moved to a workforce consisting of mostly full-time and part-time permanent employees". 165 In addition to these meetings, Mr Prior also held a meeting on about 24 March 2016 with Mr Steve Newton, the Senior Yard Delegate of the Transport Workers' Union at the Bungarribee facility. Part of the exchange at that meeting was as follows: Prior: The business is looking to remove costs from all aspects of its operations. I have worked through the areas where I think we can contribute and that involves removing reliance on structural double time and outside hire contractors as well as converting some Toll People casuals to permanent. We need to do this across the operation here at Bungarribee and I think there will be some pain for both of us, but if we can understand any issues as they arise and we communicate strongly we should be able to limit the fall out. Can you have a think over the weekend and come back to me next week with any issues that you see with this? Newton: Okay. There was a follow-up meeting between Mr Prior and Mr Newton in late-March/early-April 2016. Part of the exchange at that meeting proceeded as follows: Newton: I've got some issues with the removal of structural double time. It's only affecting permanent full-time guys. It's not really going to impact anyone else. There's a few guys in handling but it's mostly the drivers that this will affect. I know it has to be done but can you remove the outside hire and convert the casuals first? Mr Prior indicated that he could not agree to the approach suggested by Mr Newton. The conversation proceeded as follows: Prior: I can't stagger the approach in that way. However, I can commence the structural double time removal in handling and the conversions of Toll People casuals to permanent in [Pick-up and Delivery] first. I will then stage the double time activity through each of the driving areas. I will also have Troy (Jones; [Pick-up and Delivery] Manager) develop a plan to remove the outside hire ASAP. Let's catch up regularly so that I can share where we are up to and you will know what areas we are moving on before it happens each time. Newton: Okay lets do that. 166 It was in late March 2016 that Mr Prior "finalised a document that set out a plan to action a number of issues at the Bungarribee facility". Part of that plan provided as follows: Immediate Activities resulting in estimated savings of $3.47M & revenue capture of $750K annually Issue Action Complete Safety Review current CWC locale in breezeway and relocate to a safer location ($750K Revenue) Complete risk assessment and determine new location 24 March Relocate 15 April ? Install additional CWC Review unload process in Breezeway to reduce/eliminate forklift/pedestrian interactions Complete risk and operational assessment 4 April Initiate changes 11 April Fleet Remove outside hire operators from the normal daily structure within PUD & Bulk ($1.4M) 1 July Convert Toll People Casuals to permanent ($370K) 11 April Restructure the PUD, Bulk & Tailers areas to ensure all deliveries and pickups are made daily without reliance on structural double time overtime Consult with Staff and key stakeholders 8 April Identify revised structure 22 April Implement revised structure 16 May ($800K) Introduce swipe in/out process for all operators that are unable to access Kronos Understand MA process 24 March Consult with key stakeholders 1 April Implement revised process 11 April Handling Introduce AM & PM Consult with Staff and key stakeholders 8 April Processing/Production model to more appropriately measure shift performance Finalise AM Model and introduce 11 April Finalise PM model and introduce 29 April Restructure both shifts including as necessary revised shift commencement times to eliminate reliance on double time overtime Consult with Staff and key stakeholders 8 April Identify revised structure 22 April Implement revised structure 16 May ($120K) Convert Toll People Casuals to permanent ($780K) 1 May

167 What this overview of the facts exposes, at least up to this point of time, is that detailed consideration was being given to implementing the decision made in about July 2015 to reduce the labour costs at the Bungarribee facility. It exposes that all aspects of the workforce were being examined with a view to determine where costs could be saved. And some effort was being made to convey (at least to Mr Newton) the manner in which Toll Transport wished to proceed. 168 That commercial objective of reducing labour costs persisted. A staff meeting, for example, was held on about 19 April 2016 with the "management employees". Mr Prior addressed that meeting. Those in attendance included Mr Barnard. Mr Barnard is the AM/PM Operations Manager and the person responsible for looking after the "AM Operation Team" at the Bungarribee facility. Prior to June 2016, Mr Barnard reported to Mr Prior. 169 A "briefing pack" used during the course of that meeting set forth (inter alia) the following "[o]verview" of the difficulties confronting the company: A further extract from that "briefing pack" provided as follows: 170 Later in the day on 19 April 2016, Mr Barnard attended another meeting held by Mr Prior with "all the AM Operations Toll IPEC employees". Mr Prior went through with those employees the same presentation and the need for workplace changes. Mr Tomvald was in attendance at that meeting and the following exchange occurred between himself and Mr Prior: Tomvald: Can I convert to a full-time permanent position? Prior: There will be permanent shifts offered. They will range in length from 4 hours up to potentially 8 hours depending on the individual circumstances. 171 Mr Barnard started implementing the changes requested by Mr Prior following the 19 April 2016 staff meeting. On 28 April 2016 he sent an email to Mr Prior setting out how he had reduced the hours worked in the AM handling operations. This included capping all Toll IPEC casual employees' shifts at 4-5 hours. The email addressed certain employees, but not Mr Tomvald. 172 In early May 2016, Mr Barnard held a meeting with Messrs Parkin, Settineri and Finocchiaro to discuss the AM operations roster. 173 It was in late May 2016 when Mr Barnard had a conversation with Mr Tomvald in the following terms (without alteration): Barnard: Josh, you will be starting at 5:00 AM from now on not 4:00 AM. Tomvald: Why? Barnard: We are making some changes to all shift times here not just you. It's part of the changes Phil Prior talked about to save costs to the business. Tomvald: I've usually start at 4:00 AM. Barnard: We have to look after the permanent hours first Josh. Unfortunately you're a casual. We need to make changes and that means you start at 5:00 AM from next Tuesday. Mr Barnard maintained in his affidavit that the change in Mr Tomvald' start time "was consistent with the information provided by Mr Prior … at the meeting held on 19 May 2016". Some reservation may be expressed as to whether the reference to the meeting held on 19 May 2016 was a mistaken reference to the meeting held on 19 April 2016. But that matters not. What is of importance is the correlation between the date of the conversation and the letter sent to Mr Tomvald (and others) on 18 May 2016 and the statement by Mr Barnard that he was seeking to give effect to the information previously provided by Mr Prior. 174 It was on 18 May 2016 that Mr Barnard caused the "[e]xpression of interest" letter to be sent to Mr Tomvald and a number of other casual employees. 175 The 18 May 2016 letter was the letter issued generally to the AM operations shift casual employees of Toll Transport and was not a letter sent specifically to Mr Tomvald. As such, it invited "[e]xpression[s] of interest" for "[p]ermanent [p]art-time [p]ositions … made up of 4 hour, 5 hour and 6 hours shifts". 176 Some employees of Toll Transport did in fact express interest in a permanent position and some employees who had previously been employed as casual employees have converted to permanent positions. 177 Mr Tomvald's consideration of the 18 May 2016 letter took on a more tortured route. It was the subject of a number of meetings or conversations between Mr Tomvald (and Mr Selig as his representative) and officers of Toll Transport. 178 Unbeknownst to Mr Tomvald at the time was an email forwarded by Mr Barnard to Mr Prior on the following day, 19 May 2016, which stated as follows (without alteration): Here are the hours I was going to offer the am staff, happy to discus with you Attached to that email was a table which provided as follows: JOSH SMITH 5hours JACK OFA 5hours MARK ANDREWS 5hours LYNELLE KELLY 5hours SANDY DI PIETRO Permanent ROBBIE HANNA 5 hours PETER MCGARIAGLE Permanent SHADIE ELJAD Permanent JOSH SITHADETH Permanent CHISTIAN LESA 6 hours PAUL TUFNELL 5 hours MICHAEL LOUNG 4 hours DENNIS CONKA 4 hours ATA MATUATAI 4 hours DANIEL LITTLE 5 hours GLEN OSBORNE 4 hours JOSH TOMVALD 4 hours DRAGAN MILJUSEVIC 4 hours

179 Notwithstanding the proposed allocation of hours to be offered to these casual employees, at least as at 19 May 2016 no consideration had been given to either Mr Tomvald's "work patterns" or those of the other casual employees. So much was accepted as follows by Mr Prior when he was cross-examined on this table: This is the case, isn't it: you never undertook any kind of review of the casuals' work patterns? - No, I didn't. And the proposal that you got from Mr Barnard, as far as you could tell, had no relationship at all to each person's past hours worked; correct? - I think so, yes. … What I'm suggesting to you is that these proposed hours were not a function of - did not reflect each employee's past working patterns; correct? - Yes, I don't - I don't think they did. I think they were more a reflection of what Mr Barnard thought he required at certain times on the AM shift from a number of people. 180 A few days later it was also the case that no review of Mr Tomvald's "work patterns" had been undertaken. At least no such review had been undertaken by Ms Green. For example, Mr Selig and Ms Green had a conversation on 24 May 2016. During her cross-examination, she was taken to her account of the conversation and the following exchange occurred with her cross-examiner: Now, as at this date, you had no insight at all into Mr Tomvald's past work hours; correct? - Correct. You hadn't done any sort of review of his work patterns over his period of employment at Toll, Bungarribee or Moorebank? - No. I had not. You're familiar with the Toll 2013 agreement? - Yes. I am. And you understand that the agreement creates a right in casual employees to convert to permanent employment in certain circumstances? - Yes. I am. And you know that the conversion is to be on a like-for-like basis? - Yes. And you would accept, wouldn't you, that the conversion on a like-for-like basis would involve a conversion to very similar or the same hours as a permanent as had been worked as a casual? - Yes. And you understand that it's not a matter of Toll deciding what hours the casual should convert to; the agreement says what hours the casual should convert to? - Yes. Now, can we take it from your account of this conversation, that you understood that Mr Selig wanted to access Mr Tomvald's pay records because Mr Tomvald thought he had been working more hours than what was offered in the expression of interest? - Yes. And your response was to this effect, "All we have done is sent out an expression of interest. We're only asking for employees to fill out the form and send it back so we can see what they want. The only places we have are permanent part-time positions as set out in the letter [Mr Tomvald] was sent. No full-time positions are being offered". That was your response to Mr Selig? - Yes. Is the message that you were conveying to him was that there's no point looking at the records because your options are the options contained in the expression of interest: four-hour, five-hour and six-hour shifts? - Sorry. Can you ask that question again, please? The message that you were conveying to Mr Selig was, "Don't bother looking at the records because you're only going to get four hours, five hours or six hours"? - That's not what I said. In Ms Green's affidavit, she also deposes that she said in that conversation: All we have done is send out an expression of interest. We are only asking for employees to fill out the form and sent it back so we can see what they want. The only places we have are permanent part-time position as set out in the letter [Mr Tomvald] was sent. No full-time positions are being offered. 181 All the while Mr Tomvald was pursuing his request for access to his employment records. On 25 May 2016, Mr Selig thus sent an email to Ms Green which stated in part as follows: The Expression of Interest Our client has received an "Expression of Interest" dated Wednesday 18 May 2016, that appeared to offer 4, 5 & 6 hour permanent shifts. … The correspondence of 18 May 2016 would appear to be inconsistent with the commitments made by Toll in the Enterprise Agreement at clause 21(e). … Employee Records In order for our client to determine the hours he has previously worked he has twice now requested access to his employment records. Both of these requests have been unsuccessful. … With this in mind we require you pursuant to Regulation 3.43 of the Act to advise us of the location of where our client's employment records are kept. We also require you to make available for inspection our clients employee records for the preceding 12 months from the date of this correspondence which contain interalia the total number of hours each week that out client has worked for Toll Ipec. Further Discussions Once our client's employment records have been made available to us we will seek to have further discussions with Toll in regard to the basis of the offer of a permanent position. 182 On the morning of 26 May 2016 Mr Adam Jones, a Human Resources Advisor within Toll Transport, sent an email to Mr Selig which was copied in to a number of people including Mr Prior and Ms Green. That email stated in relevant part as follows (without alteration): Please find attached a copy of Joshua Tomvald's statement of earning repot for the past 12 months. I have done the calculations of Joshua's average ordinary hours for the set period. Joshua has averaged 29.89038462 hours for the past year. Please let me know if you have any questions. 183 On the afternoon of 26 May 2016, Mr Selig forwarded to Mr Jones the 25 May 2016 email he sent to Ms Green. Mr Jones' reply to Mr Selig simply asked: "Can you please advise on the outcome you are seeking?" 184 Mr Selig responded to Mr Jones on the afternoon of 26 May 2016 stating in part as follows (without alteration): The expression of interest indicated that the upcoming positions were 4, 5, or 6 hours shifts. Therefore the best outcome would appear to be a permanent part time position 30 hours per week. Josh's perception is that he has been working far in excess for that figure. As stated above this is his perception, and it could be wrong. The purpose of obtaining his hours is to determine what his average hours are, and then have discussions with the company about a position based upon those hours. If those hours fall within the scope of what's been offered in the expression of interest then so be it, and he would be interested in converting to one of those positions, if not, we would seek that he be offered a position that is comparable with those hours. We are of the view that this approach is consistent with commitments made in both the Toll Enterprise Agreement and the obligations under the Award (which we note is specially referred to in clause 21 of the Agreement and is also incorporated into the document). If the company has a different view about this, then we would seek to meet and discuss the issue further. On advice from us Josh has not indicated he will accept any of positions on offer at this point. This is simply because in our view the "like for like" commitment may entitle him, and obligate the company to provide alternative arrangements that are not proposed in the offer. We would seek to have a meeting with the company sooner rather than later once we have had an opportunity to review the information provided so we can clearly understand what the base line hours actually are as opposed to we think they may be. This email was copied to Ms Green, Mr Prior and Mr Jason Fraumano. Mr Fraumano is a Human Resources Business Partner based at Toll's national operations department in Victoria. 185 The internal response provoked within Toll Transport was somewhat remarkable. Mr Fraumano responded by way of email at 8.21am on 27 May 2016 as follows: Talk about overkill! You have provided the average hours, so 30 hours it is, not sure what we need a meeting about? Seems to be dragging it out, maybe he's trying to increase his fee? Mr Jones responded to Mr Fraumano at 9.52am that morning as follows: That's exactly what he's trying to do, I'll email him back and advise that we'll offer Josh the 6 hours a day. Mr Jones' response is equally as inexplicable as the comment made by Mr Fraumano. At least one reason why the request made by Mr Selig was "reasonable" and why the response was inexplicable was that Mr Selig's email of 26 May 2016 made express why access to the employment records was being sought and why a meeting was being sought. 186 During his cross-examination, Mr Jones was taken to Mr Selig's email sent on 25 May 2016. He agreed as follows with his cross-examiner that Mr Selig's request for records was not unreasonable: You understood from this email that Mr Tomvald's view was that the positions described in the 18 May letter - four, five, six hour shifts - didn't reflect his pattern of hours worked at Toll over the previous period? - Mr Tomvald felt that the four, five or six did not reflect his specific hours. Yes. That was his view? - That was his view. Yes. And he wanted his employee records so he could confirm the hours that he had worked? - Yes. … You understood from Mr Selig's email that he wanted the records? - Yes. And once he checked the records he wanted to speak to Toll about a permanent position that Mr Tomvald might convert into? - Yes. … There's nothing unreasonable in what Mr Selig has done so far, is there? - In regard to that email? Yes? - In regard to his request? Yes? - I don't believe so. No. It's perfectly natural for someone to say, "Look, I don't think that the offer you're making is right. Can you give me my employee records so I can have a look and come back and have an informed discussion with you"? - It's an employee right. Yes. Mr Jones was taken to the emailed request made by Mr Selig on 26 May 2016 for a meeting "once we have had an opportunity to review the information provided so we can clearly understand what the base line hours actually are" and there was then the following exchange: Now, is there anything unreasonable in that email? - No. That was a perfectly reasonable and sensible approach for Mr Selig and Mr Tomvald to take. You would accept that? - Yes. Mr Jones was then taken to the exchange of emails between himself and Mr Fraumano but was unable to recall his reaction to Mr Fraumano's email and did not know why Mr Fraumano responded as he did. 187 On 27 May 2016 at 10.14am Mr Jones sent to Mr Selig an email relevantly stating (without alteration): Please advise your client that we will be offing him 30 hours a week, which is in line with Cl. 21(e) of the Toll Group - TWU Enterprise Agreement and the award. I do not see any reason for us to meet to discuss the matter any further. Can you please inform your client to sign the "Expression of interest for Permanent Part" letter so we can progress his conversion to permanency. Given the request for further discussions, the response was - to say the least - peremptory. Mr Jones' statement that he did not "see any reason for us to meet to discuss the matter any further" was also inexplicable. Mr Jones well knew that Mr Tomvald and Mr Selig were pressing a request for access to records in order for them to be able to make an informed decision as to what constitutes "like for like" employment. Much can be gleaned from the following exchange between Mr Jones and his cross-examiner: But you understood precisely the reason to meet to discuss, which was the fact that there was a disagreement about the hours that had been worked? - Which was 30 hour - which would equate to a 30 hour week. And you understood that there was a disagreement about Mr Tomvald's entitlement; whether he was obliged to take 30 hours or whether he was entitled to something more? - My interpretation was a 30 hour week. Yes. That was your interpretation, but you understood Mr Tomvald didn't accept that? - Yes. The inescapable inference is that the offer made by Mr Jones on 27 May 2016 was the only offer that was going to be made and it mattered not what any "like for like" comparison exposed. 188 If attention is focussed on the two periods roughly preceding and subsequent to the 18 May 2016 "[e]xpression of interest" letter, it is concluded that: preceding the sending of that letter and a day or so afterwards, no consideration was given to Mr Tomvald's "work patterns" and any proposed allocation of permanent hours being contemplated in respect to casual employees was driven more by "what Mr Barnard thought he required at certain times" than any individual consideration of the circumstances or "work patterns" of individual employees; and that thereafter there was a process of calculation undertaken of the hours previously worked by Mr Tomvald and the offer made on 27 May 2016 was driven by the understanding on the part of Toll Transport as to what Mr Tomvald was entitled to on a "like for like" basis. 189 It is the latter period of time which, for present purposes, assumes greater relevance. Prior to about 18 May 2016 there is nothing in the evidence to indicate that Toll Transport was giving any special thought to Mr Tomvald. 190 But it was on about 18 May 2016 that the existence of a dispute between Mr Tomvald and Toll Transport first emerged. It was a little thereafter that Mr Tomvald started exercising his "workplace rights" - for example, the appointment on 25 May 2016 of Mr Selig as his representative. 191 If attention is more specifically focussed on the events after 18 May 2016 which led to the offer being made on 27 May 2016, it is again concluded that what was driving Toll Transport in making the offer: remained a commitment to implement the corporate objective of reducing labour costs but a commitment tempered by: an internal calculation as to the hours which had been worked by Mr Tomvald and an assessment as to his entitlement to only a 30 hour week. The fact that the offer made may not have reflected what Mr Tomvald has now been held to be entitled to does not detract from the genuineness of the process of internal calculation being undertaken. Missing from that process of calculation and the decision-making process which led to the offer being made is any sound factual foundation for concluding that the exercise of his "workplace rights" formed any part of that decision-making process. Indeed, the opposite is the case. 192 The adverse action of changing Mr Tomvald's starting time from 4.00am to 5.00am is pleaded to have taken place on around 24 May 2016. Thus, the adverse action relied upon took place during the period between about 18 May 2016 and when the offer was made on 27 May 2016. Even if the evidence be reconsidered with a view to considering the events leading up to the decision on around 24 May 2016 to change Mr Tomvald's starting time - rather than the process whereby the 27 May 2016 offer was made - there remains no evidence to support any conclusion that the exercise of "workplace rights" played any part in the making of that decision. 193 It is thus concluded that the exercise of "workplace rights" did not form any part of the decision making process to change Mr Tomvald's starting time from 4.00am to 5.00am. 194 The adverse action relied upon in capping Mr Tomvald's hours took place on 9 June 2016. 195 But there is nothing in the evidence of the events leading up to 9 June 2016 to found any conclusion that the exercise of "workplace rights" played any part in the decision making process to cap Mr Tomvald's hours. 196 The only two relevant events that occurred between 27 May 2016 and 9 June 2016 were: on 6 June 2016, Mr Jones sent an email to Ms Green attaching a spreadsheet of hours worked by Mr Tomvald; and on 9 June 2016, Mr Jones sent an email to Ms Rebecca Mifsud attaching the spreadsheet and stating that "we are looking to offer Joshua 30 hours a week as permanent part-time". That evidence, it is concluded, merely reinforces the conclusion that genuine consideration was being given to offering Mr Tomvald what Toll Transport thought he was entitled to. Nothing in that evidence provides any basis for concluding that the separate decision to cap Mr Tomvald's hours was driven by any consideration of his having exercised "workplace rights". 197 If the analysis be paused at this point, it is concluded that Toll Transport has discharged the reverse onus of proof imposed upon it by s 361 of the Fair Work Act. 198 No reason to reach any different conclusion is occasioned either by: the absence of any real explanation as to why the table sent by Mr Barnard to Mr Prior on 19 May 2016 allocated, it would appear somewhat randomly, permanent positions to some employees, six, five or four hours to other employees and particularly why only 4 hours was allocated to Mr Tomvald; and/or the fact that Mr Tomvald may have suffered a greater reduction in his earnings than other casual employees. 199 Such explanation as was provided by Mr Prior in his cross-examination as to his understanding of the table only reinforces a conclusion that any considerations personal to Mr Tomvald played no part in the consideration of hours to be offered at that point in time. Moreover, the table either preceded or substantially preceded the exercise by Mr Tomvald of any "workplace right". 200 The submission that Mr Tomvald did in fact suffer a greater reduction in his earnings than other casual employees was said to be supported by the following calculations explaining the comparative effect of the changes on different employees: Casuals Change % Andrews -$ 10.88 -1% Conka -$ 373.13 -33% Di-Pietro -$ 123.77 -11% Eljad -$ 273.65 -19% Hanna -$ 286.66 -29% Kelly -$ 149.15 -11% Lesa -$ 368.05 -26% Little -$ 171.35 -13% Luong -$ 429.94 -38% Matautia -$ 404.18 -32% McGarrigle -$ 279.44 -21% Miljusevic -$ 360.60 -30% Ofa -$ 71.87 -7% Osborne -$ 483.34 -42% Sithideth -$ 358.54 -26% Tomvald -$ 636.82 -41% Tufnell -$ 191.26 -18%

Average drop of pay after 29 May 2016: -$ 292.51 -23%

Nothing turns on Mr Prior not knowing who Mr Tomvald was "as at about April 2016", as accepted during his cross-examination. 201 Even if it were to be accepted that Mr Tomvald was treated less favourably than other employees, such a finding - if made - would not provide any sufficient reason to conclude other than that Toll Transport has discharged the onus of proof imposed upon it. 202 The change in start times and the capping of hours, it is respectfully concluded, was but a consequence of the plan to reduce labour costs. That action was not taken, it is concluded, "because" Mr Tomvald had exercised any "workplace right".

The discharge of the reverse onus of proof 203 The conclusion that Toll Transport has discharged the reverse onus of proof imposed upon it by s 361 is essentially founded upon: the fact that there was a proposal to reduce labour costs which long pre-dated any exercise of any "workplace right" by Mr Tomvald; the steps being taken across the labour force to implement the decision taken in July 2015 to reduce labour costs; the fact that calculations were being undertaken within Toll Transport to determine the ordinary hours worked by Mr Tomvald and that such calculations were being undertaken with a view to determining what constituted a "like for like" offer. That the conclusion was mistaken as to Mr Tomvald's entitlement conferred by cl 21(e) of the Enterprise Agreement does not detract from the genuineness of the attempt to accord Mr Tomvald that to which he was entitled; the fact that the offer of permanent employment made to Mr Tomvald on 27 May 2016 reflected the calculation undertaken by Toll Transport; and the absence of evidence to found any finding that the exercise of any "workplace right" played any part in the decision to either change Mr Tomvald's start time or to cap his hours of work. That absence of evidence would not be remedied by any inference founded upon the greater reduction in Mr Tomvald's earnings compared to other casual employees. 204 Contraventions 3 and 4 are thus rejected.

CONSULTATION 205 The fifth and sixth contraventions alleged by Mr Tomvald are an alleged failure to consult in relation to the capping of his hours and the alteration of his hours of work. More fully expressed, paras [41] and [42] of the Further Amended Statement of Claim plead as follows: 41. Toll Transport did not consult with the Applicant in relation to its decision to cap his hours at five hours per shift. 42. Toll Transport did not consult with the Applicant in relation to its decision to change his starting time from 4am to 5am. The Further Amended Defence denies the allegations made. 206 The declaratory relief sought is relevantly a declaration that there have been contraventions of s 50 of the Fair Work Act by reason of the failure to consult as required by cl 14 of the Enterprise Agreement. 207 It is concluded that these contraventions have been made out.

The requirement to consult 208 The requirement to consult is to be found in cl 14 of the Enterprise Agreement. 209 Consultation clauses in industrial agreements - such as cl 14 in the present case - serve an important function. 210 A requirement to consult, it may nevertheless be noted, is not unique to industrial agreements: Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v QR Ltd [2010] FCA 591, (2010) 198 IR 382 at 394. Logan J there observed: [42] The imposition of a requirement for one party to consult with another is hardly unique to industrial instruments. I have already made passing reference to coincidental examples of requirements to "consult" in the course of setting out the history of legislative provision in Queensland with respect to railways. A search of current Commonwealth legislation discloses no less than 572 provisions imposing a requirement on a Minister or other official or agency to "consult". In turn, as a study of reported cases discloses, these are but Australian exemplars of a requirement widely employed in a range of public administration applications by the parliaments of the United Kingdom and elsewhere in the Commonwealth of Nations. A "key element" of the requirement to consult, his Honour there observed, requires that notice be given of the subject matter under consideration and an opportunity given to persons affected to have their say. After referring to some of the authorities dealing with the requirement to consult, his Honour continued on to observe (at 394 to 395): [44] … [The authorities] serve to confirm an impression as to the content of an obligation to "consult" evident from the dictionary meaning of the word. A key element of that content is that the party to be consulted be given notice of the subject upon which that party's views are being sought before any final decision is made or course of action embarked upon. Another is that while the word always carries with it a consequential requirement for the affording of a meaningful opportunity to that party to present those views. What will constitute such an opportunity will vary according [to] the nature and circumstances of the case. In other words, what will amount to "consultation" has about it an inherent flexibility. Finally, a right to be consulted, though a valuable right, is not a right of veto. [45] To elaborate further on the ordinary meaning and import of a requirement to "consult" may be to create an impression that it admits of difficulties of interpretation and understanding. It does not. Everything that it carries with it might be summed up in this way. There is a difference between saying to someone who may be affected by a proposed decision or course of action, even, perhaps, with detailed elaboration, "this is what is going to be done" and saying to that person "I'm thinking of doing this; what have you got to say about that?" Only in the latter case is there "consultation". An appeal in relation to the penalty imposed in that case was allowed: QR Ltd v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union [2010] FCAFC 150, (2010) 204 IR 142. But there was no disagreement with his Honour's observations as to the content of the requirement to consult. Logan J subsequently observed that "the consultation obligation is not concerned with a likelihood of success of the process, only to ensure that it occurs before a decision is made to implement a proposal": Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2014] FCA 1431 at [60]. 211 Where there is a requirement to consult, the requirement is of fundamental importance and is "no empty term" and is "never to be treated perfunctorily or as a mere formality": Kutlu v Director of Professional Services Review [2011] FCAFC 94 at [71], (2011) 197 FCR 177 at 198 per Flick J (citing TVW Enterprises Ltd v Duffy (No 2) (1985) 7 FCR 172 at 178 to 179 per Toohey J). The requirement to consult affected workers would, accordingly, not be satisfied by providing the employees with a mere opportunity to be heard; the requirement involves both extending to affected workers an opportunity to be heard and an entitlement to have their views taken into account when a decision is made. Listening to affected workers with no intent to take the views they express into account falls short of providing the opportunity envisaged by provisions such as that found in cl 14 of the Enterprise Agreement. Genuine consultation would generally take place where a process of decision-making is still at a formative stage. But, having genuinely consulted with affected workers, the views expressed need not prevail; affected workers, as was recognised by Logan J, have no right of veto. 212 But the content of any specific requirement to consult is necessarily dictated by the precise terms in which such a requirement is expressed; the nature of the factual or legal issues the subject of the requirement; and the factual context in which the requirement is exercised, including the particular circumstances of the persons with whom there must be consultation. In some circumstances, consultation may merely involve the identification of an issue upon which input is then sought; in other circumstances, consultation may require the disclosure of information without which no meaningful input to a decision-making process may be possible. 213 The requirement to consult imposed in the present case by cl 14 of the Enterprise Agreement is constrained by the fact that the requirement only arises where Toll Transport is "considering workplace changes that are likely to have a significant effect on Transport Workers". 214 The phrase "Transport Workers" is defined by cl 3. That definition makes it clear that the requirement is not further constrained such that it only applies to permanent, as opposed to casual, employees. 215 The changes first mooted in July 2015 when Mr Prior was first directed to reduce labour costs and the proposed changes conveyed at the meetings held on 19 April 2016 would undoubtedly fall within the definition of a change that was likely to have "a significant effect on Transport Workers" as that phrase is defined in cl 14(f)(ii) and (iv) of the Enterprise Agreement. 216 The requirement imposed by cl 14 is a requirement to "consult with … any Transport Workers who will be affected by any proposal". Such a requirement may not impose an obligation to consult with individual employees on a one-on-one basis; the requirement may be satisfied where there has been consultation jointly with a number of workers having a common interest. 217 But it is unnecessary to resolve on the facts of the present case the content of the requirement to consult, what information need be disclosed to "Transport Workers" or whether the requirement necessitates a one-on-one consultation with each individual worker. It is unnecessary to resolve such questions for the simple reason that the evidence does not disclose any consultation with Mr Tomvald either individually or as a member of a broader class of casual employees. 218 Notwithstanding the lack of any necessity to resolve such matters, given the terms in which cl 14 is expressed and the constraint upon the requirement to consult, it may nevertheless be observed that any suggestion as made by Counsel on behalf of Toll Transport that the clause cannot "sensibly operate" is rejected.

The facts - a meeting held 219 The only exchanges that could potentially constitute consultation are: the meetings held on 17 September 2015 between Mr Prior and permanent employees in handling; the meeting held on 24 March 2016 between Mr Prior and Mr Newton, the Transport Workers' Union Senior Yard Delegate at the Bungarribee facility and the follow-up meeting in late-March/early-April; the meeting held on 19 April 2016; and/or the meetings in mid-May 2016. 220 The first of these meetings were meetings attended by permanent employees and not casual employees. 221 The meeting with Mr Newton falls into a different category as it canvassed, albeit briefly, the prospect of "converting some Toll People casuals to permanent". 222 The meeting held on 19 April 2016 was the meeting at which, on Mr Barnard's account, Mr Prior addressed all the AM operations employees. Mr Barnard was in attendance. The meeting followed a meeting earlier that morning with the management employees at which Mr Prior spoke to the points set forth in the "briefing pack" and the points then made were substantially repeated to the employees. It was at the meeting with the employees that Mr Tomvald asked whether he could convert to a "full-time permanent position" and was told by Mr Prior that "there will be permanent shifts offered" ranging from four to eight hours "depending on the individual circumstances". On Mr Prior's account, this meeting was in any event only attended by permanent employees. 223 That meeting, with respect, fell short of "consultation". 224 Assuming that the content of the "briefing pack" was disclosed to those attending the meeting with the employees, there may have been some disclosure of information. But there was no consultation. The employees were simply told of forthcoming changes. Indeed, on Mr Prior's account of that meeting, it was a meeting with "Toll IPEC permanent Handling employees on both the AM and PM shifts as well as the permanent Fleet employees" and the "purpose of the meeting was to provide an update on the Toll IPEC business and advise employees of changes that were being made to all operational areas of the business to remove costs from the Bungarribee facility". Left to one side is any consideration of whether casual employees were in attendance at that meeting or any distinction between permanent and casual employees. Even on that account, that meeting fell short of consultation, if for no other reason than that it failed: to engage in any process whereby the employees could have any say as to whether any other course could be pursued by Toll Transport other than those which had been foreshadowed by Mr Prior; and/or to seek the input of any category of employee as to the manner in which the forthcoming changes would be implemented. Moreover: the meeting was held at a point of time well after any proper consultation may have potentially resulted in any "feedback" to be taken into account before a final decision had been made. 225 The meetings in mid-May 2016, according to the account given by Mr Prior, were meetings at which he "spoke to Toll IPEC Handling casuals" and received questions from employees. The only account Mr Prior gave of that meeting in his affidavit was that he was "asked questions from employees who attended in words to the following effect": Prior: There will be permanent shifts offered that range from minimum 4 hours up to 8 hours depending on where you work, what the business needs and consideration of seniority. Employee: So it's only going to be 4 hours? Prior: No, it will land where it lands. It won't be everyone at 4 hours, everyone at 5 hours and so on. It will depend on individuals. 226 The same criticism of that meeting is expressed to the extent that reliance is sought to be placed upon it as evidencing some form of consultation. On Mr Prior's account, rather than seeking input from employees, the employees were told that any change "will land where it lands". 227 If there was any consultation which focussed upon seeking the input of casual employees prior to a decision being made as to how Toll Transport was going to proceed it was the meetings with Mr Newton on 24 March 2016 and in late-March/early-April 2016. But cl 14(a) of the Enterprise Agreement requires consultation "with the Union and any Transport Workers who will be affected by any proposal". There was no evidence of any consultation with Mr Tomvald and no evidence of any consultation with any representative group of casual employees or even a number of casual employees at any point prior to the decision being taken as to how Toll Transport was to proceed. There is no warrant in cl 14 to confine the ambit of operation of that clause to only permanent Transport Workers. Although Mr Prior's attention may have been focussed upon the position of permanent employees in late 2015/early 2016, the fact was that the proposed changes were "likely to have a significant effect on Transport Workers", including both permanent and casual employees. 228 The facts, it is concluded, expose a lack of consultation on the changes of which the casual employees were apparently told on 19 April 2016. There was a lack of any consultation in respect to any proposed capping of hours or changes to the start times, including how those changes would affect Mr Tomvald. 229 The contraventions alleged in paras [41] and [42] of the Further Amended Statement of Claim have been made out.

MISREPRESENTATION 230 The seventh contravention alleged by Mr Tomvald is that Toll Transport wrongly represented to him "that he was not entitled to appoint a representative for the purposes of a dispute notified under the Agreement's dispute procedure". 231 The relief which is sought includes a declaration that Toll Transport contravened s 345(1) of the Fair Work Act. 232 It is concluded that: the misrepresentation, as pleaded, was made by Ms Green; Mr Selig's account of the conversation in which the misrepresentation was made is preferred to the account given by Ms Green; and the facts do not fall within the exception in s 345(2) of the Fair Work Act. 233 The contravention has, accordingly, been made out.

The source of the entitlement 234 The source of the entitlement to appoint a representative is to be found in an undertaking given by Toll Transport when seeking approval of the Enterprise Agreement. 235 The undertaking provided was as follows: AG2013/9903 Toll Group - TWU Enterprise Agreement 2013-2017 Pursuant to section 190 of the Fair Work Act 2009 (Cth), Toll Holdings Limited, for itself and each of its wholly-owned subsidiaries in Australia, gives the following undertakings: 1. For the purposes of any consultation required under clause 14 of the Agreement an employee will be entitled to the representative of their choice. This may include, but will not be limited to, representation by the Union. 2. The definition of "Dispute" in clause 3 of the Agreement will be taken to expressly include disputes about matters in relation to the National Employment Standards. By extension, the disputes resolution procedure in clause 15 of the Agreement will apply to such disputes. 3. For the purposes of the dispute resolution process under clause 15 an employee will be entitled to the representative of their choice. This may include, but will not be limited to, representation by the Union. That undertaking was given by Mr Damian Sloan, the Senior Legal Counsel - Workplace Relations & Safety of the Toll Group. 236 Section 191 of the Fair Work Act provides that such an undertaking is to form a term of the Agreement. That section provides as follows: Effect of undertakings (1) If: (a) the FWC approves an enterprise agreement after accepting an undertaking under subsection 190(3) in relation to the agreement; and (b) the agreement covers a single employer; the undertaking is taken to be a term of the agreement, as the agreement applies to the employer. (2) If: (a) the FWC approves an enterprise agreement after accepting an undertaking under subsection 190(3) in relation to the agreement; and (b) the agreement covers 2 or more employers; the undertaking is taken to be a term of the agreement, as the agreement applies to each employer that gave the undertaking. 237 Section 345(1) of the Fair Work Act provides that a person must not "knowingly or recklessly make a false or misleading misrepresentation" about a person's "workplace rights". Section 345(2) provides that s 345(1) does not apply "if the person to whom the representation is made would not be expected to rely on it".

The facts - the misrepresentation made 238 The misrepresentation is said to have occurred during a conversation between Mr Tomvald's representative (Mr Selig) and Ms Green on 24 May 2016. 239 Mr Selig in his first affidavit deposes to a conversation between himself and Ms Green in which he was raising with her the request made by Mr Tomvald for access to his employment records. After setting forth this part of the conversation, Mr Selig maintains that the conversation continued as follows (without alteration): Green: I'm sorry. What did you say your interest in this is again? Selig: I am Joshua's representative, and I am ringing to obtain for Josh to get access to his employment records and then we want to have a discussion with you about him becoming a permanent employee. Green: I'm sorry. You are not allowed to represent Joshua. Josh is only allowed to have support person in these matters and you cannot represent him in this. Selig: Excuse me, but I think it is incorrect. I assume that you are familiar with the Toll Heads of Agreement? Green: Yes I am. Selig: And I assume you know a guy called Damien Sloan the head of Toll HR? Green: Yes of course I do. Selig: Well according to the decision made by the Fair Work Commission when the Agreement was registered Damien Sloan had to give the Commission separate undertaking that dealt with this very issue in order to get the agreement approved. The undertakings say that an employee can be represented by any one of their choosing at any time. I can send you a copy of the undertakings if you like. Green: I'm not aware of any undertakings to allow anybody other than a support person in these matters. Selig: Well I'll send you a copy of the decision of the commission. So when can we get copies of Josh's records? We'd like to get copies of his payslips. Green: Josh gets his payslip every week. We are not going to give you another set. 240 Ms Green's account of that part of the conversation departed from the account provided by Mr Selig. On her account, she simply stated that she needed confirmation that Mr Tomvald had appointed Mr Selig as his representative. On her account, the conversation started as follows: Selig: Hello Tamara, my name is Greg Selig. I am calling on behalf of Joshua Tomvald. Green: How can I help you? Selig: I'm ringing to arrange to get copies of Josh's employment records. He has received an expression of interest about converting from casual to permanent. Green: I'm sorry I can't give you that information. I don't know who you are. I've got nothing from Josh confirming that he has appointed you as his representative. Once I can confirm who you are we can provide that information, but I can't talk to you about the matter at the moment because I don't have anything from Josh saying he's appointed you. 241 This account was questioned during Ms Green's cross-examination. Ms Green's understanding of the importance of statements made as to "workplace rights" was pursued as follows: Now, you would agree with me that an allegation that a human resources representative, such as yourself, has misrepresented and employee's workplace right is a serious one? - Yes. … And can I suggest to you that if someone wrote something to you in an email that you disagreed with and the proposition was serious, you would write back and say, "Look, I disagree with what you have just said; that's not right"? - Yes. Ms Green was then shown a copy of the undertaking given by Mr Sloan, as had been provided to her by Mr Selig, and her cross-examination continued: Then you see that Mr Selig goes on to refer to an undertaking that he says was given by Mr Sloan on behalf of Toll? - Yes. And he enclosed a copy of the decision, together with the undertakings that were given by Mr Sloan? - Yes. And he pointed out to you that the third part of the undertaking was to the effect that an employee will be entitled to a representative of their choice for the purposes of resolving disputes? - Yes. And you saw all of these things that Mr Selig was putting to you? - Yes. And you understood that he was putting squarely to you that in your conversation the previous day, you had said to him he was not entitled to act as a representative but only a support person? - Yes. And you understood that he was suggesting to you that that was contrary to the undertaking given by Toll in support of its application for approval of the agreement? - Yes. And you understood that Mr Selig was putting to you that you had misrepresented the position. You had - I withdraw that. I will put it more precisely, Ms Green. You understood that Mr Selig was putting to you that you had misrepresented Mr Tomvald's rights as to representation under the enterprise agreement? - Sorry. Can you rephrase that, please? You understood from this email that Mr Selig was suggesting to you that you had misrepresented Mr Tomvald's rights to a representative under the enterprise agreement? - Yes. And you did not reply to this email? - No. I did not. Not on 25 May or on any other day? - No. I did not. And that is because you accepted that what Mr Selig had put to you was correct; that you had told him that he was entitled to act only as a support person and not as a representative? - No. That's not correct. There the evidence rested. 242 It is concluded that Mr Selig's account of the conversation should be accepted because: Mr Selig was, with respect, a more impressive witness than Ms Green; Mr Selig's account of the conversation is substantially corroborated by his email sent shortly after that conversation; Ms Green accepted that the allegation was serious but did not respond to Mr Selig's email, as would otherwise have been expected; and it was not put to Mr Selig in any significant way during his cross-examination that his account was not correct. It is further concluded that the misrepresentation made by Ms Green was made "knowingly" and was a misrepresentation "about … the workplace rights" of Mr Tomvald. 243 It should also be noted, however, that Mr Selig thereafter represented Mr Tomvald in discussions with Toll Transport.

Reliance - s 345(2) 244 Toll Transport, it is further concluded, cannot bring itself within the terms of s 345(2). 245 The terms of s 345(2) are unambiguous. No occasion arises for recourse to be had to any Explanatory Memorandum. 246 Section 345(2) is not to be confined to circumstances where a statement has been made, for example, as a joke in a social context. 247 The fact that Mr Selig may not have been misled by the misrepresentation is, with respect, not to the point. Section 345(2) calls for an inquiry as to whether Ms Green, when she made the misrepresentation, had an expectation as to whether Mr Selig would or would not rely upon what he was being told. Given the acceptance of Mr Selig's account of the conversation, it is concluded that Ms Green was unambiguously conveying to Mr Selig that he was not entitled to be Mr Tomvald's representative and expected him to accept that as the correct position.

MAINTAINING THE STATUS QUO 248 The eighth contravention alleged by Mr Tomvald is that there has been a failure to maintain the status quo pending the resolution of the dispute. 249 The case advanced on behalf of Mr Tomvald was that Toll Transport had to maintain the status quo prevailing as at 18 May 2016. The subsequent capping of his hours on 9 June 2016, he maintained, was contrary to cl 15 of the Enterprise Agreement. 250 It was of obvious importance to Mr Tomvald to establish that the requirement to maintain the status quo arose at some point of time prior to the date upon which his hours were capped. 251 There was a degree of flexibility as to the manner in which this case was advanced. The primary manner in which the claimed contravention was advanced focussed upon paras [46] and [47] of the Further Amended Statement of Claim. If that claim was not successful, it was understood that reliance was sought to be placed upon other pleadings as to the time at which Mr Tomvald sought to invoke "the dispute settlement process" and thereby the requirement that the status quo be preserved. 252 However the claimed contravention was advanced, it is concluded that it fails. 253 It is concluded that: any admission made in the pleadings as to a dispute having arisen no later than 18 May 2016 cannot dictate a conclusion as to the date upon which the requirement imposed by cl 15(g) to maintain the status quo arose; and any reliance upon an earlier date upon which a "dispute" may have arisen for the purposes of cl 15 fails to occasion any requirement to maintain the status quo prior to 9 June 2016. 254 It is thus concluded that this contravention has not been made out.

The source of the requirement to maintain the status quo 255 The source of the requirement to maintain the status quo is to be found in cl 15 of the Enterprise Agreement. 256 Clause 15 sets forth the "Dispute resolution procedure". It is sufficient for present purposes to refer to sub-cll 15(a), (b), (c) and (d). Those provisions are as follows: 15. Dispute resolution procedure The Parties agree that any Dispute must be dealt with in the following manner: (a) The matter must first be discussed by the aggrieved Transport Worker(s) directly with his or her or their immediate supervisor. (b) If the matter remains in dispute, it must next be discussed with the supervisor's immediate superior or another representative of Toll appointed for the purpose of this procedure. The Union delegate for the worksite has the right to attend at, and participate in, this discussion as the representative of the Transport Worker's choice. (c) If the matter remains in dispute, it must next be discussed with the relevant manager of Toll. The relevant Union State Secretary (or his/her nominee) has the right to attend at and participate in this discussion as the representative of a Transport Worker, provided that the relevant Union State Secretary is the representative of the Transport Worker's choice. (d) If the matter remains in dispute, it must next be submitted to the [Fair Work Commission] for conciliation. For this purpose, it is agreed that the action the [Fair Work Commission] may take includes: (i) arranging conferences of the parties or their representatives at which the [Fair Work Commission] is present; and (ii) arranging for the parties or their representatives to confer among themselves at conferences at which the [Fair Work Commission] is not present. Of particular relevance is the requirement that "any Dispute" is to be dealt with in accordance with the manner thereafter set forth. 257 Subclause 15(g) goes on to provide as follows: (g) Until the matter is resolved by agreement, conciliation or arbitration, the status quo before the Dispute arose will be maintained and work will continue without disruption. No party is to be prejudiced as to the final settlement by the continuance of work in accordance with this procedure. The "matter" for the purposes of sub-cl 15(g) is the "matter" first "discussed by the aggrieved Transport Worker(s) directly with his or her or their immediate supervisor" (subcl 15(a)). 258 The requirement to maintain the status quo, according to the terms of cl 15, hinges upon the existence of a "matter" first being "discussed" between the worker and his immediate supervisor. It is from the date of that discussion that the status quo is to be preserved until the matter is resolved.

The pleadings - an admission of a dispute as to the capping of hours? 259 The pleadings at paras [46] and [47], it is concluded, do not contain any admission that a dispute in respect to the capping of Mr Tomvald's hours for the purposes of cl 15 arose no later than 18 May 2016. There was, accordingly, no requirement to maintain the status quo prevailing as at that date. 260 The pleadings relevantly start with the identification of what it describes as "the Dispute" and continue thereafter to plead the contravention. 261 Paragraphs [20] and [21] of the Further Amended Statement of Claim identify "the Dispute" as follows: 20. A workplace dispute exists between Toll Transport and the Applicant in relation to a matter pertaining to the relationship between Toll Transport and the Applicant (the Dispute). 21. The Dispute: (a) was a dispute in relation to the Applicant's hours of work and/or the Applicant's right to convert to permanent employment; and (b) arose at the workplace no later than 18 May 2016. For present purposes, Toll Transport admits para [21(b)]. Its Further Amended Defence pleads as follows (without alteration): 20. The Respondent admits the allegation in paragraph 20 of the Further Amended Statement of Claim. 21. In response to the allegation in paragraph 21 of the Further Amended Statement of Claim, the Respondent: (a) denies paragraph 21(a) and asserts the dispute is in relation to: (i) the Applicant's hours of work; and (ii) the interpretation and application of the "like for like" provision in clause 21(e) of the Agreement and clause 12.6 of the Award; and (b) admits paragraph 21(b). 262 Paragraphs [46] and [47] of the Further Amended Statement of Claim go on to plead the contravention of present relevance as follows: Contravention 8: failure to maintain the status quo 46. By virtue of clause 15(g) of the Agreement, Toll Transport was obliged to maintain the status quo as it existed before the Dispute arose. 47. By capping the Applicant's hours of work, Toll Transport departed from the status quo as it existed before the Dispute arose. 263 The Further Amended Defence provides as follows (without alteration): Contravention 8: failure to maintain the status quo 46. In response to the allegations in paragraph 46 of the Further Amended Statement of Claim, the Respondent: (a) says that clause 15(g) of the 2013 Agreement requires that until the matter (i.e. a dispute under clause 15 of the Agreement) was resolved as provided for in clause 15(g), the status quo before the dispute arose will be maintained and work will continue without disruption; and (b) asserts that the 'status quo' before the Dispute arose was the employment of the Applicant by the Respondent on a casual basis; and (c) further asserts that as a casual employee, the Applicant had no guarantee of work either with respect to the hours of work (including starting and finishing times) or the shifts offered to him; and (d) otherwise denies paragraph 46. 47. The Respondent denies the allegation in paragraph 47 of the Further Amended Statement of Claim and repeats paragraph 46 above. 264 The reliance placed by Mr Tomvald upon the admission in para 21(b) of the Further Amended Defence as to the date upon which a "dispute" arose is misplaced. 265 Any definition of the term "dispute" as employed in the Further Amended Statement of Claim and any admission as to when such a "dispute" arose does not answer the separate question as to what constitutes a "dispute" and when any such "dispute" arose for the purposes of the dispute resolution clause in the Enterprise Agreement. 266 Paragraph [20] of the Further Amended Statement of Claim is expressed in sufficiently broad terms as to cover the capping of the hours worked by Mr Tomvald, the capping of those hours being a matter "pertaining to the relationship between Toll Transport and [Mr Tomvald]". 267 But what cl 15 of the Enterprise Agreement requires, being matters not addressed in the pleadings, is the requirement for Mr Tomvald to (inter alia): discuss the "matter" with his "immediate supervisor" (sub-cl 15(a)); discuss "the matter … in dispute" with the "supervisor's immediate superior" if "the matter remains in dispute" (sub-cl 15(b)); and discuss "the matter" with "the relevant manager of Toll" if "the matter" still "remains in dispute" (sub-cl 15(c)). There were no pleadings as to the dates upon which any of these steps took place. Nor was there any evidence directed to the dates upon which such steps were taken. 268 No case was sought to be advanced on behalf of Mr Tomvald at paras [46] and [47] of the Further Amended Statement of Claim that the "dispute" arose on any date other than a date "no later than 18 May 2016". 269 The contravention as pleaded at paras [46] and [47] of the Further Amended Statement of Claim is thus rejected.

An alternative date as to when the dispute arose - a date earlier than 9 June 2016? 270 It is open to argument as to whether the claimed contravention of failing to maintain the status quo was to be confined to paras [46] and [47]. 271 If the manner in which those paragraphs are expressed is placed to one side, a course which presents its own difficulties, there remained the prospect that there was some other date earlier than 9 June 2016 as the date upon which the dispute arose and the requirement imposed by subcl 15(g) enlivened. 272 Clause 15, it may be noted, does not require some formal notification of a dispute. The search for any such formal notification may thus be a search for the irrelevant. Subclauses 15(a) to (c) merely require a series of discussions with respect to "the matter" about which a worker is aggrieved. And the requirement to maintain the status quo is a requirement to maintain "the status quo before the Dispute arose". 273 Clause 15, moreover, refers to "any Dispute". The clause is not confined to the identification of a particular dispute which is thereafter relied upon as a contravention - such as a contravention arising out of action taken to cap the hours of an employee. 274 It thus remained a possibility that some date could be fixed upon as the date upon which a dispute for the purposes of cl 15 first arose other than a date fixed by reference to para [21(b)] of the Further Amended Statement of Claim. 275 Such a possibility arose by reason of paras [26(c)] and [28(b)] of the Further Amended Statement of Claim and the allegations there made as to Mr Tomvald having "initiated and/or participated in a dispute settlement process for which provision was made under the Agreement". Those paragraphs, however, do not appear to be primarily addressed to an allegation as to the capping of hours but are addressed to the allegation that Toll Transport failed to convert Mr Tomvald's position from casual to permanent on a "like-for-like" basis. 276 Even if paras [26(c)] and [28(b)] could be called in aid of establishing the necessary preconditions for the requirement imposed by sub-cl 15(g) of the Enterprise Agreement to maintain the status quo, the evidence going to the issues raised by these pleadings only exposes Mr Tomvald to different difficulties. Thus, for example, on Mr Tomvald's account, he had a conversation with Mr Prior in early April 2016. In that conversation Mr Tomvald maintains that he asked Mr Prior whether he "could become a permanent employee" and was told that he was "not entitled to a full time position". Mr Tomvald did not agree and "intended to pursue the matter further". However, by mid-April 2016 Mr Tomvald had not notified Toll Transport of any "dispute". During his cross-examination, for example, Mr Tomvald was taken to his account of the exchange with Mr Prior in April 2016 and the cross-examination proceeded as follows: So here you give evidence about raising with Philip Prior in early April 2016 about wanting to become a permanent employee. And then towards the end of [para [14] of Mr Tomval's first affidavit] you say that you intended to pursue the matter further. Now, I understand that - you've given some evidence that you made a request at different stages, and I will come to those, but it was really in April 2016 when you formed an intention for the first time to pursue it further? - Yes, sir. Yes. And I will come to some other evidence you give, but the flipside of that, of course, is that previously you had never had the intention to pursue the matter? - No, sir. And even as at April 2016 when you say you first - or when you raised it and then formed that intention, you didn't at this stage notify any dispute, did you? - Not sure. Well, you didn't formally put in any dispute saying - in April when you had this discussion with Phil Prior that, "I should be made permanent," in early April, did you? - No, sir. You simply made an inquiry with Mr Prior? - Yes, sir. Any such conversation falls short of establishing any "discussion" undertaken between Mr Tomvald and Mr Prior so as to satisfy the requirements of cl 15 - irrespective of where any such "discussion" may fall for the purposes of sub-cll 15(a), (b) or (c). That discussion was a discussion which simply identified the fact that there was disagreement; it fell short of a discussion aimed at resolving the dispute as required by cl 15. 277 There was, moreover, a further difficulty. Even if such discussions - fortified by such further email exchanges as may have been sent for or on behalf of Mr Tomvald, such as that sent on 25 May 2016 - be taken into account, the fact remains that a General Protections Application was filed with the Fair Work Commission on 14 June 2016 but thereafter abandoned. 278 Even if the preceding requirements imposed by sub-cll 15(a), (b) and (c) were satisfied, a party who seeks to submit a dispute to the Fair Work Commission for conciliation consistent with sub-cl 15(d) cannot abandon that application and maintain the protection afforded by cl 15(g) that the employer maintain the status quo.

A failure to invoke the dispute resolution procedure 279 Irrespective of whether Mr Tomvald: could confine Toll Transport to any admission that a dispute arose no later than 18 May 2016; or could identify some other date earlier than 9 June 2016 upon which "any dispute" arose, irrespective of whether that dispute was confined to a dispute as to the capping of Mr Tomvald's hours of employment or a dispute more broadly defined and extending to a dispute arising from a failure to convert his employment from casual to permanent on a "like-for-like" basis he failed to bring himself within the entitlement conferred by cl 15(g) of the Enterprise Agreement to maintain the status quo. 280 Contrary to the submission advanced on behalf of Mr Tomvald, the requirement imposed by subcl 15(g) only arises where there is a "dispute" - albeit "any dispute" - which falls within the ambit of that clause. Although there may be no formal requirement to notify an opposing party of the existence of such a "dispute", cl 15 nevertheless requires that there be a cascading series of requirements that characterise the "dispute" to which the clause refers. A "dispute" divorced from any attempt to resolve that "dispute" with either the worker's "immediate supervisor" or "the supervisor's immediate superior" is not a "dispute" to which that clause refers. An employee cannot, accordingly, unilaterally create a "dispute" without thereafter attempting to resolve that "dispute" and still bring himself within the protection afforded by sub-cl 15(g) requiring the maintenance of the status quo until his grievance is resolved to his satisfaction. Such a "dispute" would be divorced from the "dispute" contemplated by the Enterprise Agreement. 281 Although on the facts of the present case it may readily be accepted that there were a series of issues or "disputes" between Mr Tomvald and Toll Transport which Mr Tomvald (and even Toll Transport) wanted to resolve, there was no "dispute" as that term is used in cl 15 of the Enterprise Agreement. 282 To so conclude is not to require any unnecessary formalism as to the manner in which a dispute may be resolved. But both parties to any dispute need to be aware that there exists a dispute which falls within the ambit of the Enterprise Agreement and a dispute which attracts mutual obligations to try to resolve. 283 The protection afforded by cl 15(g) is, accordingly, a protection which attracts reciprocal obligations: on the one hand, an employer may be bound to maintain the status quo pending the resolution of a dispute; on the other hand, an employee only gains that protection by following the steps set forth in cl 15 and providing an opportunity for the dispute to be resolved. Although there need not be unnecessary formalism in the process of resolving the dispute and each of the steps undertaken, the protection afforded by cl 15(g) is only afforded in those circumstances where the "procedure" envisaged by cl 15 is being followed. The protection is not attracted (or does not persist) where that "procedure" is not invoked or where it is invoked but later abandoned. 284 The eighth contravention has thus not been made out.

COMPENSATION 285 Mr Tomvald seeks compensation pursuant to s 545(2)(b) of the Fair Work Act. 286 Paragraphs [56] to [57] of the Further Amended Statement of Claim seeks the following orders (without alteration): Compensation 56. An order under sections 545(3) of the FW Act that Toll Transport pay compensation to the Applicant is respect of the wages lost as a result of the unlawful adverse action identified at paragraphs 31-39 above. 56A. An order under sections 545(3) of the FW Act that Toll Transport pay compensation to the Applicant in respect of the loss caused by the breaches of clauses 15 and 21(e) of the Agreement identified at paragraphs 29 and 46-48 above. 57. An order under s545(1) and 547(2) of the FW Act that Toll Transport pay interest on the amounts referred to at paragraphs 56 and 56A above. The claim to compensation is denied by Toll Transport. The reference in the pleadings to s 545(3), it would appear, is a mistake. But nothing turns on that. 287 It has been concluded that Mr Tomvald did have a right to convert from casual employment to permanent full-time employment. He sought to exercise that right on or about 25 May 2016 and he was wrongfully denied that right on or about 27 May 2016 when Mr Jones emailed Mr Selig offering a position of 30 hours per week. 288 An order should be made pursuant to s 545(2)(b) compensating Mr Tomvald for the loss he has suffered because of Toll Transport's failure to convert Mr Tomvald's prior position as a casual to a permanent position on a "like for like" basis. The power conferred by s 545(1) extends to a power to award interest on an amount of compensation that has been ordered. It is further concluded that interest should be ordered in respect to the amount of compensation to be paid. 289 The written submissions filed on behalf of Mr Tomvald have performed a series of calculation quantifying the loss suffered by Mr Tomvald attributable to the alleged: failure to convert in accordance with cl 21(e) of the Enterprise Agreement; adverse action taken in respect to the change in the shifts performed by Mr Tomvald and the capping of his hours; and failure to maintain the status quo. Only the first of these three areas of dispute has been resolved in Mr Tomvald's favour. 290 The written submissions filed on behalf of Mr Tomvald included a schedule setting out a calculation of the quantum of the compensation claimed in respect to the failure to convert his position. The schedule was updated at the hearing on 28 March 2017 and provides (in part) as follows: Failure to convert Applicant Average earnings of Toll full-time freight handlers on AM shift between 29 May 2016 and 6 November 2016 $1,571.74 Average earnings of Tomvald between 29 May 2016 and 6 November 2016 $928.95 Difference between Tomvald earnings and AM permanent full-time freight handler earnings $642.79/week Value of annual leave accrual (2.923 hours/week x $28.24/hour) $82.55/week Total differential per week $725.34 per week Weeks between 29 May 2016 and 30 April 2017 48 Weeks Loss attributable to failure to convert $34,816.32

291 Toll Transport, however, disagreed with this process of calculation, and criticised it on the basis (inter alia) that: the base figures upon which the calculations were undertaken were open to question, including the period of time over which the average earnings were calculated; reliance upon the work performed by other employees was questionable given the absence of evidence as to the circumstances pertaining to those employees; and the absence of Mr Tomvald from work during January 2016 "inflates" the calculations. 292 On any view of the evidence, it was left in an uncertain state. 293 The parties should, accordingly, attempt to prepare an agreed table setting forth the quantum of compensation payable. In the event that there is disagreement in respect to one or other step in that process of calculation, the table should identify those areas of disagreement and the reasons for any divergence in approach. 294 The preparation of the table should not present insurmountable difficulties. The simple fact is that had cl 21(e) of the Enterprise Agreement been properly implemented, Mr Tomvald from about 27 May 2016, would have been employed as a full-time permanent employee. He was not. Accepting that there may be some areas of disagreement in respect to the value of annual leave and the like, one means of approaching the calculation to be undertaken would be to quantify the amount Mr Tomvald would have received had he been employed full-time as a permanent employee and deducting the amount he in fact received. In the event that Mr Tomvald worked overtime as a casual employee after 27 May 2016, there may be a question as to whether he would have worked a similar amount as a full-time permanent employee. But the basic approach would presently appear to be a simple task. 295 Any calculation as to the compensation to be paid, it should nevertheless be recognised now, may not involve a process of precise mathematical calculation but a process of informed judgment. 296 Notwithstanding the prospect of limited disagreement between the parties, every effort should be made - consistent with the obligations imposed by s 37N of the Federal Court of Australia Act 1976 (Cth) (the "Federal Court Act") - to prepare a table upon which an order as to the payment of compensation can properly be based.

THE IMPOSITION OF PENALTIES 297 In paras [58] and [61] of the Further Amended Statement of Claim, Mr Tomvald also seeks orders pursuant to s 546 of the Fair Work Act for the payment of "civil penalties in respect of its contraventions" and that those penalties be paid to himself.

The principles to be applied - a brief overview 298 There was no disagreement between the parties to the present dispute as to the principles to be applied when quantifying the penalties to be imposed for contraventions of the Fair Work Act. Nor is there any need to set forth those principles in any great detail. 299 But some brief outline remains prudent. 300 First, the purposes for imposing penalties for breaches of industrial law have been outlined by French CJ, Kiefel, Bell, Nettle and Gordon JJ in Commonwealth v Director, Fair Work Building Industry Inspectorate [2015] HCA 46, (2015) 258 CLR 482 at 505 to 506 as follows: [53] Civil penalty proceedings are civil proceedings and therefore an adversarial contest in which the issues and scope of possible relief are largely framed and limited as the parties may choose, the standard of proof is upon the balance of probabilities and the respondent is denied most of the procedural protections of an accused in criminal proceedings. [54] Granted, both kinds of proceeding are or may be instituted by an agent of the state in order to establish a contravention of the general law and in order to obtain the imposition of an appropriate penalty. But a criminal prosecution is aimed at securing, and may result in, a criminal conviction. By contrast, a civil penalty proceeding is precisely calculated to avoid the notion of criminality as such. [55] No less importantly, whereas criminal penalties import notions of retribution and rehabilitation, the purpose of a civil penalty, as French J explained in [Trade Practices Commission v CSR Ltd (1991) ATPR ¶41-076 at 52,152], is primarily if not wholly protective in promoting the public interest in compliance: "Punishment for breaches of the criminal law traditionally involves three elements: deterrence, both general and individual, retribution and rehabilitation. Neither retribution nor rehabilitation, within the sense of the Old and New Testament moralities that imbue much of our criminal law, have any part to play in economic regulation of the kind contemplated by Pt IV [of the Trade Practices Act 1974 (Cth)] … The principal, and I think probably the only, object of the penalties imposed by s 76 is to attempt to put a price on contravention that is sufficiently high to deter repetition by the contravenor and by others who might be tempted to contravene the Act." 301 Secondly, the task of fixing a penalty is a process of "instinctive synthesis": Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith [2008] FCAFC 8 at [26] to [28] and [55], (2008) 165 FCR 560 at 567 to 568 per Gray J and 572 per Graham J. 302 Thirdly, the factors to be taken into account when quantifying the penalty to be imposed have been summarised by Tracey J in Kelly v Fitzpatrick [2007] FCA 1080 at [14], (2007) 166 IR 14 at 18 to 19 as follows: • The nature and extent of the conduct which led to the breaches. • The circumstances in which that conduct took place. • The nature and extent of any loss or damage sustained as a result of the breaches. • Whether there had been similar previous conduct by the respondent. • Whether the breaches were properly distinct or arose out of the one course of conduct. • The size of the business enterprise involved. • Whether or not the breaches were deliberate. • Whether senior management was involved in the breaches. • Whether the party committing the breach had exhibited contrition. • Whether the party committing the breach had taken corrective action. • Whether the party committing the breach had cooperated with the enforcement authorities. • The need to ensure compliance with minimum standards by provision of an effective means for investigation and enforcement of employee entitlements and • The need for specific and general deterrence. 303 Finally, it is necessary to ensure that a contravener is not punished twice for the same conduct and that any penalty imposed is proportionate to the contraventions: Director of Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2015] FCA 1213. Tracey J there observed: [19] Where, as in the present proceeding, multiple contraventions arise from a series of related events which constitute a course of conduct principles of proportionality and consistency come into play in determining the appropriateness of the penalty. [20] The ultimate penalty "must be proportionate to the offence and in accordance with the prevailing standards of punishment". [21] Consistency requires that "[l]ike cases should be treated in like manner": Wong v The Queen (2001) 207 CLR 584 at 591 (Gleeson CJ). The consistency principle does not require a detailed factual comparison between past cases and that presently under consideration with a view to fixing a higher or lower penalty depending on the outcome of the comparative analysis. [22] It is also necessary to ensure that a respondent is not punished twice for the same conduct. The principle was explained by the Full Court in Construction, Forestry, Mining and Energy Union v Cahill (2010) 269 ALR 1 at 12 as follows: "It [the 'course of conduct' principle] is a concept which arises in the criminal context generally and one which may be relevant to the proper exercise of the sentencing discretion. The principle recognises that where there is an interrelationship between the legal and factual elements of two or more offences for which an offender has been charged, care must be taken to ensure that the offender is not punished twice for what is essentially the same criminality. That requires careful identification of what is 'the same criminality' and that is necessarily a factually specific enquiry. Bare identity of motive for commission of separate offences will seldom suffice to establish the same criminality in separate and distinct offending acts or omissions. (Original emphasis.) [23] This principle is to be applied separately from and anterior to the final check constituted by the application of the totality principle. It does not necessarily require the application of a single penalty for all of the contravening conduct. Reference should also be made to s 557(1) of the Fair Work Act which provides as follows: For the purposes of this Part, 2 or more contraventions of a civil remedy provision referred to in subsection (2) are, subject to subsection (3), taken to constitute a single contravention if: (a) the contraventions are committed by the same person; and (b) the contraventions arose out of a course of conduct by the person. See also: Construction, Forestry, Mining and Energy Union v Cahill [2010] FCAFC 39 at [37] to [44], (2010) 194 IR 461 at 473 to 475 per Middleton and Gordon JJ.

The penalties imposed 304 In considering the penalties to be imposed in respect to those contraventions which have been made out, regard has been had to each of the factors identified by Tracey J in Kelly v Fitzpatrick. Consideration has been given, not only to the purposes sought to be pursued in the imposition of penalties as summarised in Commonwealth v Director, Fair Work Building Industry Inspectorate, but also: the fact that Toll Transport operates throughout Australia; the fact that Toll Transport was under financial pressure to reduce its labour costs, at least at the Bungarribee facility; the circumstances surrounding the contraventions, including the circumstances in which the request was made for copies of employee records and the response to the notification that Mr Selig was appointed as the representative of Mr Tomvald; and the importance of the provisions of the Enterprise Agreement which have been contravened. The Applicant made no more than generalised submissions going to the gravity of the contraventions. 305 The maximum penalties, penalties proposed on behalf of Mr Tomvald and the penalties to be imposed in respect to the contraventions which have been made out may be summarised as follows: No Contravention Maximum penalty Penalty proposed Penalty imposed 2 Regulation 3.42: Failure to provide employee records on request 100 units ($18,000) Top of the range $10,000 5 & 6 Section 50: Failure to consult in respect to the capping of hours and the change in start time 300 units ($54,000) Middle of the range $15,000 7 Section 345: The misrepresentation as to Mr Selig's ability to represent Mr Tomvald 300 units ($54,000) Low range $7,500 9 Section 50: Failure to convert on a "like-for-like" basis 300 units ($54,000) Top of the range $10,000 Total $42,500

306 In imposing these penalties, the following further brief observations may be made: Contravention 2: rather than imposing a penalty at the "[t]op of the range" as proposed, it is considered that a penalty close to the middle of the range is appropriate. A penalty at the lower end of the range is certainly not considered appropriate, given the lack of assistance provide to Mr Tomvald upon a proper request being made and the peremptory response given by Ms Green; Contraventions 5 & 6: these contraventions have been regarded as a single course of conduct. Rather than imposing a penalty in the "[m]iddle of the range" as proposed, it is considered that a lower penalty is appropriate but that the penalty should nevertheless be substantial given the importance of the right conferred by cl 14 of the Enterprise Agreement; Contravention 7: concurrence is expressed with the proposal advanced by Toll Transport that the penalty imposed should be in the "[l]ow range". Although Ms Green initially made the misrepresentation to Mr Selig, he shortly thereafter assumed the role of Mr Tomvald's representative; and Contravention 9: rather than imposing a penalty at the "[t]op of the range" as proposed, it is considered that the contravention was more due to an erroneous understanding of the entitlement conferred rather than a deliberate decision to offer less than what was known to be that entitlement. 307 The penalties imposed for each of these contraventions have been individually assessed and again reconsidered to ensure that the payment of such penalties as a combined sum properly represents an appropriate quantum of penalties to be paid. 308 Power is conferred upon the Court to make an order that penalties be made payable to Mr Tomvald: Fair Work Act s 546(3)(c). The penalties imposed, it is concluded, should be made payable to Mr Tomvald.

COSTS 309 A recurring concern in many proceedings arising under the Fair Work Act is that costs are being unnecessarily incurred. In other proceedings, the very fact that costs may be awarded against a losing party or that costs may be apportioned as between the parties serves as a discipline upon both the parties and their representatives in selecting the legal and factual issues posed for resolution by this Court. The very fact that some proportion of the costs incurred may be awarded against a party who is otherwise partially successful serves as a useful reminder that all parties to litigation should remain ever vigilant as to the legal and factual issues truly in need of resolution. 310 But that same discipline does not prevail in many proceedings arising under the Fair Work Act. In many proceedings factual issues are pursued to a perhaps unnecessary extent and both legal and factual issues are pursued in both written and oral submission where such issues (on one view) should not be pursued at all or should be left to be addressed in written submissions alone. 311 The difference between the manner in which proceedings are conducted where costs remains a discretionary decision of the Court pursuant to s 43 of the Federal Court Act and the manner in which proceedings arising under the Fair Work Act are conducted is becoming ever more stark. There is also, it is respectfully considered, a growing tension between the manner in which proceedings arising under the Fair Work Act are conducted and the obligations imposed by ss 37M and 37N of the Federal Court Act. 312 In proceedings arising under the Fair Work Act, costs are not awarded in accordance with the generally accepted principles applicable to s 43 of the Federal Court Act, but are constrained by s 570 of the Fair Work Act which provides as follows: Costs only if proceedings instituted vexatiously etc. (1) A party to proceedings (including an appeal) in a court (including a court of a State or Territory) in relation to a matter arising under this Act may be ordered by the court to pay costs incurred by another party to the proceedings only in accordance with subsection (2) or section 569 or 569A. (2) The party may be ordered to pay the costs only if: (a) the court is satisfied that the party instituted the proceedings vexatiously or without reasonable cause; or (b) the court is satisfied that the party's unreasonable act or omission caused the other party to incur the costs; or (c) the court is satisfied of both of the following: (i) the party unreasonably refused to participate in a matter before the FWC; (ii) the matter arose from the same facts as the proceedings. 313 Section 570, it will be noted, confers a power to order a party to pay costs if (inter alia) the Court is satisfied that "the party's unreasonable act or omission caused the other party to incur the costs". It will be further noted that s 570 only constrains the power to order costs against a "party"; it says nothing as to the power to order costs against a legal practitioner who falls short of the obligations imposed by s 37N of the Federal Court Act. 314 The interplay between ss 37M, 37N and 43 of the Federal Court Act and s 570 of the Fair Work Act has been considered by Mortimer J in Ryan v Primesafe [2015] FCA 8, (2015) 323 ALR 107. Her Honour there observed (at 122 to 123): [64] … The discretion conferred by the confined terms of s 570(2) should be exercised cautiously, and the case for its exercise should be clear: see Saxena v PPF Asset Management Ltd [2011] FCA 395 at [6] per Bromberg J. The reason for caution is the potential for discouraging parties' pursuit in a complete and robust way of the claims for contravention which they seek to make under the Fair Work Act, or the defence of such claims. The policy behind s 570 is to ensure that the spectre of costs being awarded if a claim is unsuccessful does not loom so large in the mind of potential applicants (in particular, in my opinion) that those with genuine grievances and an arguable evidentiary and legal basis for them are put off commencing or continuing proceedings. It is an access to justice provision. Insofar as it operates to the benefit of respondents, it is designed to ensure respondents feel free to pursue arguable legal and factual responses to the claims made against them. There is an almost identical provision in s 611 of the Fair Work Act, giving the Fair Work Commission a similar costs power, conditioned by similarly-worded considerations. The predecessor provisions, and the conscious broadening of the statutory terms used in s 570, are traced by the Full Court in Australasian Meat Industry Employees' Union v Fair Work Australia (No 2) (2012) 203 FCR 430; [2012] FCAFC 103 at [3]-[4] per Jessup and Tracey JJ. … [66] Section 570, and the conditions it imposes on the Court's general costs discretion under s 43 of the Federal Court Act, is not a licence to parties to ignore the requirements of s 37M of the Federal Court Act, nor the court's power to order costs against parties who fail to comply with their obligations under s 37N. The content of ss 37M and 37N, and parties' obligations to assist the Court in achieving the objectives set out in s 37M, must be reconciled with access to justice provisions such as s 570(1). That reconciliation occurs through a focus on the reasonableness of parties' conduct, the appropriateness of the Court processes undertaken by them, the timeliness of their compliance with Court orders or steps in the proceeding, and the existence of a substantive legal and factual basis for the claims made and arguments put. See also: Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2016] FCA 987 at [117] to [122] per Collier J. The discretion conferred by s 570 must obviously not only "be exercised judicially according to the terms defining it, it must be exercised with caution because of the exceptional nature of the power in an otherwise no-costs jurisdiction": Trustee for The MTGI Trust v Johnston (No 2) [2016] FCAFC 190 at [8] per Siopis, Collier and Katzmann JJ. The importance of "access to justice", as Mortimer J has helpfully noted, assumes considerable importance in cases arising under the Fair Work Act. But "access to justice" is of importance to all parties in all proceedings in this Court, including "access to justice" by all of the parties in industrial proceedings - including a respondent employer. 315 The need for caution and the objective sought to be achieved by provisions such as s 570 may readily be accepted. But there is also a need to keep constantly under scrutiny the manner in which proceedings are conducted, including proceedings under the Fair Work Act, to ensure that costs are not "unreasonably" incurred and that the public interest in the orderly and cost-effective administration of justice is not too readily placed to one side. Section 570, it may be noted, would not seem to preclude costs being awarded against an otherwise successful claimant for at least such part of a proceeding as has been unreasonably pursued. 316 It may be that future cases arising under the Fair Work Act will require greater consideration to be given to making costs orders. 317 On the facts of the present case, however, no such occasion arises. Although some of the "pleading points" relied upon by Toll Transport have been regarded as lacking in merit, such additional costs as have been incurred by the parties in addressing these issues would not be of such a magnitude as to warrant an order pursuant to s 570(2)(b) of the Fair Work Act. 318 The appropriate order in the present proceeding is that there should be no order as to costs.

CONCLUSIONS 319 It has been concluded that the following contraventions have been made out and that penalties totalling $42,500 should be imposed: contravention 2: failure to provide employee records on request; contraventions 5 & 6: failure to consult in respect to the capping of hours and the changing of start times; contravention 7: the misrepresentation of Mr Selig's ability to represent Mr Tomvald; and contravention 9: failure to convert Mr Tomvald's employment from casual to permanent on a "like-for-like" basis. 320 It is further concluded that such penalties should be paid to Mr Tomvald. 321 Compensation should also be paid to Mr Tomvald pursuant to s 545(2)(b) of the Fair Work Act. 322 The Cross-Claim should be dismissed. 323 Declaratory relief should also be granted in respect to those contraventions that have been made out. 324 There should be no order as to costs.

THE ORDERS OF THE COURT ARE: (1) The parties are to file and serve within fourteen days a table setting forth either: (i) an agreed quantum of compensation to be payable to Mr Tomvald; or, in the event of a failure to agree; (ii) a table setting forth the matters upon which there is disagreement and the reasons for any disagreement. (2) Subject to Order 1, the parties are to bring in Short Minutes of Orders to give effect to these reasons within fourteen days. (3) Liberty is reserved to either party to have the matter re-listed on 48 hours' notice in writing. I certify that the preceding three hundred and twenty-four (324) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Flick.