Twentieth Superpace Nominees v TWU

Twentieth Superpace Nominees v TWU - [2006] NSWIRComm 218 - NSWIRComm 2006 case summary — Zoe

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SECTION 210 FREEDOM FROM VICTIMISATION 210(1) An employer or industrial organisation must not victimise an employee or prospective employee because the person: (a) is or was a member or an official of an industrial organisation of employees or otherwise an elected representative of employees, or (b) does not belong to an industrial organisation of employees, or holds a certificate of conscientious objection to becoming a member of such an industrial organisation, or (c) refuses to engage in industrial action, or (d) exercises functions conferred under this Act, or (e) claims a benefit to which the person is entitled under the industrial relations legislation or an industrial instrument, or (f) informs any person of an alleged breach by an employer of the industrial relations legislation or of an industrial instrument, or (g) participates, or proposes to participate, in proceedings relating to an industrial matter, or (h) engages in, or proposes to engage in, any public or political activity (unless it interferes with the performance of the employee's duties), or (i) informs any person of an alleged breach of the Protection of the Environment Operations Act 1997 by an employer, or (ia) informs any person or body of, or gives evidence in relation to, a notifiable occurrence within the meaning of the Rail Safety Act 2002 , or (ib) reports a matter relating to the safety or reliability of railway, bus or ferry operations to the Chief Investigator of the Independent Transport Safety and Reliability Regulator or an officer of the Ministry of Transport, or (j) makes a complaint about a workplace matter that the person considers is not safe or a risk to health, or exercises functions (as a member of a committee or otherwise) with respect to workplace consultation conferred under Division 2 of Part 2 of the Occupational Health and Safety Act 2000 , or (k) assists the Independent Pricing and Regulatory Tribunal or Scheme Administrator in the exercise of its functions under the Electricity Supply Act 1995 . (2) In any proceedings under section 213 to enforce the provisions of this section, it is presumed that an employee or prospective employee who suffers any detriment as a result of action by the employer or industrial organisation was victimised because of a matter referred to in subsection (1) that is alleged by the applicant to be the cause of the detrimental action. That presumption is rebutted if the employer or industrial organisation satisfies the Commission that the alleged matter was not a substantial and operative cause of the detrimental action. 5 The TWU sought orders for the employment of Mr Purdy with SCT and payment for lost remuneration. 6 Murphy C made a number of findings in addition to those referred to above.The key findings are summarised below:

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13 SCT contended that the appeal raised important issues about the proper construction of s210 of the Act, the exercise of powers under Ch 5, Pt 1 of the Act and the nature of orders available under s213 of the Act; that those questions had not previously been the subject of detailed reasoned attention of the Full Bench; and that it was in the public interest for those questions to be the subject of detailed reasoned attention of the Full Bench. 14 The TWU submitted that there was no basis for granting leave to appeal. Mr A Hatcher, counsel for the TWU, contended that at least six of the eight questions raised by the appellant were not squarely raised in the proceedings at first instance and on the basis of Knowles v Anglican Church Property Trust (No 2) (1995) 95 IR 380, leave should not be granted to allow what is a substantially different case to be argued on appeal. Mr Hatcher further contended that the remaining questions were without substance. 15 With regard to the terms of the orders, Mr Hatcher contended that the appellant's complaint that it did not have an opportunity to be heard as to the form of the orders made by the Commissioner was without substance. Specifically, Mr Hatcher contended that no issue about the form of the orders was raised in the appellant's closing submissions, which followed the TWU providing the Commission and the appellant with a written submission which identified the form of the orders sought and an oral submission which referred to the form of the orders. Mr Hatcher further contended that the appellant was not entitled to assume that there would be a separate hearing as to the form of the orders, nor did it seek to obtain any such hearing and, as such, there was no denial of natural justice. 16 Given the proceedings at first instance, we refuse leave to appeal as to the terms of the orders and the manner in which they were made. It is clear from the proceedings at first instance that the TWU submitted draft orders and that it was incumbent on SCT, if it wished to do so, to raise its objections or make its comments during the proceedings at first instance. Further, we do not believe it was necessary for Murphy C to provide reasons for the nature and form of the orders in circumstances where no objection was made as to the form of those orders. It is well settled that leave to appeal will not be granted to deal with arguments that were not squarely raised at first instance: Knowles v Anglican Church Property Trust (No 2) (1995) 95 IR 380 at 381-82. The appellant's submissions regarding the orders fall into this category. 17 We do, however, grant leave to appeal in so far as the appeal relates to the proper construction of s210 of the Act. The section is an important protective provision in the Industrial Relations Act and it is in the public interest to clarify its interpretation and operation. CONSIDERATION

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(2) what matters would fall within the scope of the matters listed in s210(1)(j). 23 As to the first matter, for the reasons we will outline, we consider that the phrase "makes a complaint" should be construed broadly and does not require a formal accusation. A complaint can be inferred from conduct, or a course of conduct, involving raising concerns, objections or disagreements and should be seen to encompass the myriad of ways in which an employee would ordinarily raise issues or make complaints in a workplace. 24 Mr Hatcher referred us to the Macquarie Dictionary definition of complaint, which provides that "complaint" means "an expression of grief, regret, pain, censure, resentment, or discontent; lament; fault-finding". Mr Dixon SC referred us to the definition of complaint in the Australian Concise Oxford Dictionary (7th edn, 1987), which provides: complaint n. utterance of grievance; expression of grief; formal accusation; subject or ground of complaint; bodily ailment. 25 In interpreting the phrase "makes a complaint", it is also necessary to consider the phrase in the context of the words used in the sub-section. The requirement is "makes a complaint about a workplace matter that a person considers is not safe or a risk to health". In this regard, we refer to the observations of the Full Bench in Davis v Amalgamated TV Services (1998) 81 IR 364, in which it was said (in obiter): The result is that the legislation is now not penal but purely remedial in nature and, in our view, should not be interpreted on a strict or technical basis so as to defeat receipt of the intended benefits; rather, a more purposive and beneficial construction of the legislation should be adopted. 26 We consider that the phrase "about a workplace matter" gives meaning to "complaint". Specifically, the context within which "complaint" is included in the section connotes something which is informal in nature akin to the statement of grievances or expression of dispute in a workplace context and thereby having the following attributes:

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The new provisions alter the standard of proof required to establish victimisation to the civil standard and empower the Commission to award a broad range of remedies designed to restore the employee to a position equivalent to that he or she would be in if the victimisation had not occurred. 29 In conclusion, having regard to the ordinary meaning of the word "complaint", the context in which the phrase "makes a complaint" is used in s210(1) and the protective nature of the section, we are satisfied that the phrase "makes a complaint" should be construed broadly and that it is not necessary to point a specific formal accusation as constituting the making of the complaint. Expressing dissatisfaction about a workplace matter may well amount to the making of a complaint. This may arise from an instance or the statement of a grievance or, when viewed in context, a course of conduct involving the expression of dissatisfaction or the raising of concerns or objections. 30 Further, we do not accept the appellant's submission that the complaint must be made at the time of the alleged refusal to offer employment as there is nothing in the section to justify such a limitation being imposed. In this regard, we agree with Mr Hatcher's submission that to interpret the provision in this manner would tend to rob the section of much of its efficiency. To interpret the section in this manner would be inconsistent with a purposive and beneficial interpretation of the provision and would fail to recognise that complaints about workplace matters may evolve over time and manifest themselves as a series of concerns or complaints which may escalate over time if the issue is not resolved. The circumstances of the present matter illustrate this clearly. 31 Turning to Mr Purdy's conduct in 2004, we are satisfied that Mr Purdy's conduct commencing from his letter of 26 August 2004 to his then employer, Mills Transport, constitutes making a complaint. This initial complaint was followed by a petition signed by Mr Purdy (as the first signatory) and a number of statements by Mr Purdy in meetings and teleconferences, including at which representatives of Condong and SCT were present. We regard the petition and each of these statements as an utterance of a grievance or an expression of fault-finding, each amounting to the making of a complaint. Certainly, the overall circumstance involve the making of a complaint. In this regard, we observe that Mr Purdy's letter to the RTA on 5 November 2004 can also be viewed as an utterance of a grievance or an expression of fault-finding. Each statement involves Mr Purdy stating an issue in the form of a grievance or discontent and pressing for its resolution and, by itself, or, as a course of conduct, constitutes a complaint for the purposes of s210(1)(j). Further, we are satisfied that each of these actions constituted "making a complaint" for the purposes of s210(1)(j) of the Act and observe that the petition could be regarded as a formal complaint contrary to the appellant's submissions as it is plainly a complaint in a formal sense with Mr Purdy as a primary actor. The fact that the TWU delayed serving the document does not, given that it was eventually served, rob it of its efficacy in establishing the existence of a complaint as it illustrates the nature and existence of the grievance expressed by Mr Purdy at the relevant time.

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32 For the protection under section 210(1)(j) to be enlivened, it is necessary for the applicant to also show that the complaint was about, inter alia, a workplace matter that the person considers is not safe or a risk to health. In its written submissions, the appellant accepted that the Commission found that Mr Purdy was in his employment with Mills Transport actively involved in occupational health and safety matters, as opposed to having a concern about the mere imposition of fines, although the appellant contended that the actions related to this did not amount to making a complaint. 33 The section requires first, that the complaint relates to a "workplace matter" and secondly, one that the person "considers is not safe or [is] a risk to health". As already mentioned, the section should be read broadly to give effect to the legislative intention of the protection against victimisation provisions as seen in the Second Reading Speech. As such, "workplace matter" should be read to include any matter arising in connection with a workplace. In the case of Mr Purdy, the overloading of sugar bins was clearly a "workplace matter" as the filling and delivery of those bins was the responsibility of Mr Purdy as an employee. 34 As to the second requirement, the references to "safe" and a "risk to health" should also be construed broadly. In this regard, we consider that these terms should be read in the context of the Occupational Health and Safety Act 2000 and specifically of s8 of that Act deals with the safety of employees (s8(1)) and non-employees (s8(2)). While Mr Purdy's complaints did not allege that the overloading of the sugar bins posed a safety risk to employees, he was concerned about the consequences for other road users. We are satisfied that this constitutes a complaint "about a workplace matter that the person considers is not safe or a risk to health", in this case the safety of other road users. 35 Finally, we observe that from a policy viewpoint, every reasonable avenue should be available to an employee to raise occupational health and safety concerns without fear of victimisation or retribution and, accordingly, it is appropriate that s210(1)(j) should be construed broadly. 36 Given our conclusion regarding the proper interpretation of "makes a complaint" and the evidence regarding Mr Purdy's involvement in health and safety matters, we are satisfied that Mr Purdy made a complaint about a workplace matter regarding safety, in this case the risk to other road users in sugar cane falling from overloaded bins while in transit. This was evident from a number of Mr Purdy's actions, including his letter to his then employer on 26 August 2004 in which he referred to broken windscreens, the signing of the petition and the events at and subsequent to the meeting held on 3 November 2004, including his communications to the RTA in which he stated that "one cane billet could cause a serious accident". 37 Accordingly, Murphy C was correct in concluding that a complaint relating to the safety risk to the public was sufficient to constitute a "workplace matter that the person considers is not safe". How is causation established?

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38 In order for a remedy to be available under s213 for a breach of s210, causation must also be relevantly established. 39 In our view, it is clear that this element has been satisfied. We agree with the respondent's submission that Murphy C made a positive finding that the reason for Mr Purdy being refused employment was because he had made complaints about the safety of overloading sugar bins. That finding was expressed in the following terms: The Commission's assessment of the evidence of all witnesses, left no doubt of an entrenched concern by the respondent for the role played by Mr Purdy on the safety issue of overloaded cane billets, and that causal connection was satisfactorily established to the Commission. Mr Purdy was actively sidelined and therefore victimised in terms of Section 210 subsections (a) and (j) inter alia, by a deliberately flawed process of selection of the drivers employed by the previous contractor, as well as from outside that source. 40 The Commissionerreached this conclusion after considering the direct evidence of the communications between the parties, including during the meeting held on 8 December 2004, and the unusual selection criteria applied to the interview process, and being satisfied that there was the requisite connection between SCT's conduct in refusing to employ Mr Purdy and Mr Purdy's safety complaints about the overloading of sugar bins. Regardless of the correct legal situation (which we shall discuss below), the distinction drawn by the appellant between the "immediate reason" (namely, that the appellant did not approve of any employee, and would not approve of an SCT employee, who did not go through the right channels in management to raise any concerns) and the "proximate reason" is not borne out by the Commissioner's extensive findings of fact. Nor is the matter of the reversal of the onus relevant, given that the Commissioner made positive findings (with which we concur) based on direct evidence that Mr Purdy was not employed because of his workplace safety complaints. In this sense the Commissioner's finding of causation was not based upon the presumption afforded by s210(2). Finally, the Commissioner's findings as to the failure by the appellant to call Mr Tait and Mr Dines represents no proper basis for appellate intervention. This is because, irrespective of the reverse onus found in s210(2), the appellant bore the ordinary evidentiary onus of meeting the affirmative case advanced by the respondent which it failed to do in not calling those witnesses. Its failure to discharge this onus required the Commissioner to accept what he found to be the credible evidence of the respondent. Certainly, he was entitled to accept that evidence.

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49 The primary authority relied on by the appellant in support of this contention was again the dissenting judgment of Finkelstein J in Greater Dandenong, an appeal involving a question as to whether the Council's outsourcing arrangement amounted to a contravention of s298L, in which Finkelstein J stated: [T]he trial judge may not have drawn a sufficient distinction between the immediate reason (motive or purpose) for the dismissals or the acceptance of the tender, and the proximate reason (cause) which explained why that action was undertaken … 50 Finkelstein J then considered the factual findings and disagreed with the inferences Madgwick J at first instance had drawn from those findings such that Madgwick J erred in finding a prohibited reason. In the same case, Wilcox J reached his decision without reference to the distinction enunciated by Finkelstein J and Merkel J in addressing the question of fact as to the determination of the operative reason or reasons distinguished between the cause of the prejudicial conduct and the employer's reason or reasons for engaging in that conduct. Merkel J noted that there can be a significant difference between the employer's subjective reason for engaging in prejudicial conduct and the objective circumstances that led to the employer engaging in the conduct. 51 Mr Dixon SC also referred us to the decision of Branson J in Maritime Union of Australia. With regard to the Greater Dandenong decision, Branson J noted: 54 It is difficult, if not impossible, to identify the ratio decidendi of Greater Dandenong. However, two members of the Full Court (Merkel and Finkelstein JJ) concluded that the learned primary judge had erroneously failed to distinguish between the operative (or immediate) reason for the Council's conduct and the cause (or proximate reason) for the Council's conduct. While, as it seems to me, this distinction may in many cases be easier to articulate than to draw, especially in respect of a statutory provision that recognises the possibility of a number of reasons having a causal connection with conduct, I consider that I should be guided by the approach taken by Merkel and Finkelstein JJ who constituted a majority of the Full Court in Greater Dandenong on this issue. I am fortified in my decision to adopt this approach by the fact that the approach appears to me to be consistent with that adopted by R D Nicholson J in MUA v Geraldton (see [43] above). 55 Adopting the approach identified above, I am satisfied that the Company has proved on the balance of probabilities that the operative or immediate reason (or perhaps reasons) for the conduct of the Company with which this proceeding is concerned was Mr Jones' desire that each of the CSL Pacific and CSL Yarra should have the flexibility to trade as part of the CSL International fleet not only on the Australian coast but elsewhere in a cost effective way. I do not doubt, indeed Mr Jones did not deny, that in the process of reaching his decision that the CSL Yarra should be sold and reflagged, he gave consideration to the cost differential between an Australian crew and a foreign crew. As mentioned above, that cost differential flows from the content of the industrial instruments. However, it is necessary for me, as R D Nicolson J pointed out in MUA v Geraldton (see [42] above), to characterise the Company's reasons, which in this case are in reality Mr Jones' reasons. This exercise of characterisation involves, as his Honour observed, questions of judgment. In my judgment, part of the reason (or perhaps one of the reasons) for Mr Jones' decision was the desirability, as he saw it, of the CSL Yarra being able to be used in a cost effective way. I am satisfied that he considered that the freedom to crew the CSL Yarra with a crew which did not enjoy the protection of the industrial instruments would contribute significantly to the cost effective utilisation of the vessel. However, it seems to me that the fact that the crew of the CSL Yarra were entitled to the protection of the industrial instruments, while in part a cause of the decision taken by Mr Jones, was not an operative reason for his decision in the sense identified in [54] above. The relevant operative reason, I find, was the need to be able to utilise the vessel in a cost effective way. 52 The appellant also referred us to the decision of Goldberg J in Australian Workers' Union and Another v John Holland Pty Ltd [2001] FCA 93, which also involved a consideration by a Judge of the Federal Court of s298V of the Workplace Relations Act 1996, as supporting the use of a distinction drawn by Finkelstein J. We do not consider the judgment of Goldberg J applies the distinction drawn by Finkelstein J as, on the facts, Goldberg J was able to conclude that the respondent proved that it did not dismiss the employee because of the alleged prohibited reason (in that case because he was a member of the AWU). Accordingly, the circumstances of that case may be distinguished from the present matter as the respondent was able to prove that it did not terminate the employee's employment for a prohibited reason. 53 Mr Dixon SC also referred us to the decision of North J in AMIEU v Belandra (to which reference has been earlier made), which related to a question whether a union member had been victimised by a refusal of employment. In the course of his decision, North J analysed the judgments in Greater Dandenong and the decision of Branson J in MUA v CSL and concluded:

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The respondents, rightly, accepted that the existence of the necessary causal connection will involve questions of judgment and characterisation. By referring to a distinction between a reason for an action and a cause of the situation which an employer seeks to address, Merkel and Finkelstein JJ in Greater Dandenong did not establish any principle to be applied to the construction of the section. They merely engaged in a process of characterisation of the particular facts before them. In the end, the question remains whether the conduct was carried out "because" of the specified conduct. 54 We agree. We consider that North J in AMIEU v Belandra correctly states the position under the victimisation provisions in the WRA and by analogy, s210 of the Act, as being a process of characterisation of the particular facts with the question being whether the conduct was carried out "because" of the specified conduct. After examining the authorities to which we were referred, we would add that we do not consider it necessary or helpful to adopt the distinction made by Finkelstein J for the purposes of analysis in victimisation cases as that test, in our view, is contrary to the requirements of s210(2), as we have earlier discussed. Section 210(2) provides that an employer may rebut the presumption as to the alleged "matter" (the cause) by demonstrating that the substantial and operative cause of the detriment suffered by an employee was not an act of victimisation for the purposes of s210(1). 55 Finally, we note that the approach of the majority of the High Court in Purvis v New South Wales Department of Education and Training and Another (2003) 217 CLR 92 as to a "because" test in the context of anti-discrimination legislation, to which the appellant referred us, supports the approach we consider correct. 56 In Purvis, the High Court was required to consider, inter alia, whether a student had received less favourable treatment "because of" his disability. The majority judgment of Gummow, Hayne and Heydon JJ stated: For present purposes, it is enough to say that we doubt that distinctions between motive, purpose or effect will greatly assist the resolution of any problem about whether treatment occurred or was proposed "because of" disability. Rather, the central question will always be - why was the aggrieved person treated as he or she was? If the aggrieved person was treated less favourably was it "because of", "by reason of", that person's disability? Motive, purpose, effect may all bear on that question. But it would be a mistake to treat those words as substitutes for the statutory expression "because of".

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