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[1999] FCA 527
General information, not legal advice.
Federal Court of Australia
1999-04-30
Nicholson J
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REASONS FOR JUDGMENT 1 R D NICHOLSON J: The applicant seeks review of a decision of a Judicial Registrar dismissing an application under s 170EA of the Industrial Relations Act 1988 (Cth) (now the Workplace Relations Act 1996 (Cth)) ("the Act"). The application was for compensation arising from the alleged unlawful termination of the employment of the applicant by the respondent. Reinstatement was not sought and the Judicial Registrar was satisfied it was not practicable. 2 The applicant does not dispute the findings of fact made by the Judicial Registrar. Rather the applicant's request for review is based upon what is said to be two legal questions described as follows: "(a) Whether the Respondent can use a refusal to comply with a direction which was (at least in part) based upon the Applicant 'acting or having acted in the capacity of, a representative of employees' as a ground to summarily terminate the Applicant's employment. (b) Whether the phrase 'normal … work' in the grievance procedure contained within the employment contract meant the work the Applicant had been undertaking up to the date of the dispute at Spread 2 or work of a similar nature anywhere on the project." The findings of fact which are undisputed are those set out in the reasons of the Judicial Registrar published on 17 February 1988. It is unnecessary to repeat them here so far as they are irrelevant to the contentions now raised. 3 The first matter considered by the Judicial Registrar was whether the respondent had breached s 170DF of the Act, the relevant portions of which are as follows: "170DF(1) An employer must not terminate an employee's employment for any one or more of the following reasons, or for reasons including any once or more of the following reasons. … … d) seeking office as, or acting or having acted in the capacity of, a representative of employees; e) the filing of a complaint, or the participation in proceedings, against an employer involving alleged violation of laws or regulations or recourse to competent administrative authorities; 4 The approach of the Judicial Registrar to that section was shaped so far as onus of proof was concerned by the provisions of s 170EDA (2) which required the employer (the respondent) to establish that the employment was not terminated for the particular reason or reasons coming within s 170DF. This required the respondent to establish that the applicant's employment was not terminated for reasons that included: "· the fact that [the applicant] had acted in the capacity of a representative of employees in relation to safety issues; or · the fact that [the applicant] had filed a complaint and participated in proceedings against the respondent involving alleged violation of safety laws and regulations." Inter-relationship between termination of an employment and nomination as safety representative 5 The Judicial Registrar concluded the reasons for Mr Mott's decision to nominate the applicant for transfer to Spread 1 did not include the applicant's participation in conciliation proceedings nor the filing of a complaint by him against the respondent. He therefore found there was no factual basis on which s 170DF(1)(e) could apply. 6 In relation to s 170DF(1)(d) he concluded: "[The applicant] had, when he was safety representative, acted as a representative of employees. I am satisfied that this fact alone was not the reason for his dismissal. In my view, it is likely to have been the combination of [the applicant's] actions in his capacity as a safety representative together with his later actions concerning safety issues as an individual employee which contributed to Mr Mott's decision to nominate him for transfer to Spread 1. I accept, in those circumstances, that the reasons for Mr Mott's decision included the fact that [the applicant] had acted in the capacity of a safety representative." The Judicial Registrar then considered the application of the section to the decision to dismiss the applicant. On that issue he concluded: "I am satisfied that the refusal to comply with the direction changed the complexion of the issue, so that [the applicant's] history as a safety representative was not a factor in the decision to dismiss him. I am also satisfied that he would have been dismissed, for example, whether or not he had had a strained relationship with his foreman. I am therefore satisfied that the reasons for Saipem's decision to dismiss [the applicant] did not include any of the reasons prohibited by Section 170DF of the Act."
Applicant's contentions 7 It is the applicant's submission that the grounds for the direction and the grounds for dismissal could not and should not have been so "neatly separated". 8 In support, reliance is placed on Doyle v Secure Parking Pty Ltd, (unreported Industrial Relations Court of Australia, Locke JR, 8 September 1997) where it was said at 11: "It is indubitable that a transfer which is necessary and not arbitrary or capricious within a business enterprise can be an operational requirement. Having said that I am satisfied that the respondent had the right to transfer the applicant, the next step in the deliberative process is to consider if that right was exercised bona fide." It is submitted for the applicant that the reasons of the Judicial Registrar show that the legitimate power to transfer was not exercised bona fide. For this proposition reliance is placed on a subsequent passage in the reasons of the Judicial Registrar to the following effect: "Nor do I accept the proposition that the direction was unreasonable, because it was motivated in part by an improper consideration, namely, [the applicant's] history of raising safety issues, and the resulting ill‑feeling between himself and Mr Skilton." This passage in the reasons, directed to whether the direction was lawful and reasonable, was no more than a recitation of a submission made to the Judicial Registrar. It was not a finding by him of mala fides. 9 The applicant's contention is also put in another way. It is said that given the manifest intention of the Act to protect (inter alia) those who act in the capacity of employee representatives, it would be strange if it were open to an employer to single out such persons for transfer on each and every occasion when anything approaching an operational requirement arose. 10 Relevant to this submission is the following passage from later in the reasons of the Judicial Registrar which reads as follows: "For the purposes of Section 170DF, I was prepared to accept that the benefits in terms of avoiding the ongoing conflict between [the applicant] and Mr Skilton may have been an additional reason why Mr Mott did not look beyond [the applicant] when selecting an appropriate operator for transfer. However, I accept that [the applicant] was the most experienced side-boom operator of whom Mr Mott was aware. It was not unreasonable for Mr Mott to select [the applicant] on that basis, as a suitable transferee, without undertaking an exhaustive search to ensure he was the most suitable. Any perceived collateral benefit to [the applicant's] selection does not, in my view, render that selection and the resulting direction unreasonable."
Respondent's contentions 11 For the respondent it is submitted that the applicant was obliged to comply with the instruction to transfer to Paraburdoo to join the special crossings crew at Spread 1 as a consequence of his terms of employment being governed by the Goldfields Gas Transmission Pipeline Project Agreement ("the Agreement") which both enabled and required him to so comply: cl 6(d)(i) and cl 20(e). 12 It is then submitted that the bona fides of the instructions so given is not affected when the findings make clear that the applicant was suitably qualified and the most experienced side-boom operator of whom Mr Mott was aware. 13 Then it is submitted that when the decision to dismiss the applicant was made his history as a safety representative was not a consideration. This is corroborated by evidence that compliance with the direction, even at the last possible moment, would have avoided the necessity for the applicant's dismissal.
My view 14 It was found as a fact that the applicant's history as a safety representative was not a factor in the decision to dismiss him. Nothing has been advanced for the applicant to establish that that is a finding of fact arrived at in error of law. In my opinion the applicant's contentions do not succeed in making out that the finding of fact in relation to the decision of dismissal was in some way tainted by the finding of fact in relation to Mr Mott's decision to nominate the applicant.
Grievance procedure 15 In cl 29 of the Agreement it is provided that "in the event of any dispute or claim arising between an employer and his employees, normal safe work shall continue". 16 In considering the lawfulness and reasonableness of the direction the Judicial Registrar stated the following in his reasons: "I have noted that the terms of employment provided for disputes to be resolved through a grievance procedure, with the Australian Industrial Relations Commission nominated as the ultimate arbiter. That procedure was being followed by Saipem and the Union in relation to this incident, and the Commission had been notified of a dispute. The procedure specifically provides that 'In the event of any dispute or claim arising between an employer and his employees, 'normal safe work continue'. The grievance procedure gives rise to another argument as to whether Saipem could lawfully require [the applicant] to comply with its direction pending the Commission's resolution of the dispute. It is necessary to consider whether [the applicant's] relocation to Spread 1 to work as a side-boom operator on a Special Crossings Crew would have merely been a continuation of 'normal work'; there was no suggestion that it was unsafe. Counsel for the respondent submitted in the course of the hearing that it was a continuation of normal work. 'Normal' means 'conforming to the standard or common type; regular, usual, natural, or not abnormal': The Macquarie Dictionary. Rev. ed. Counsel for the applicant contended that [the applicant's] regular and usual work was on Spread 2. This might in some circumstances be a difficult issue to resolve, where the very dispute to be settled by the Commission is the ambit of an employee's terms of employment. However, I am satisfied that compliance with the direction to transfer to Spread 1 was consistent with [the applicant's] normal work for the following reasons: · [the applicant] had not, up to that point, challenged the lawfulness of the direction by asserting that it beyond the ambit of his contract - rather he was challenging the reasons for his selection; · The transfer by Saipem of employees from one spread to another was common, if not usual; and · It is the industrial parties, namely the Union and Saipem, who are empowered under the Grievance Procedure to apply to the Commission to settle the dispute. In this case the Union did so on the basis that [the applicant] should comply with the transfer 'under protest' pending the Commission's decision. I am therefore satisfied that the direction to transfer to Spread 1 was both lawful and reasonable." 17 For the applicant it is submitted the reasoning of the Judicial Registrar was in error because cl 29 (in the quoted portion) is designed to ensure protection of the status quo pending resolution of a dispute. Accordingly it is submitted that the phrase "normal … work" in the case of the applicant was a reference to the work being carried out by him at Spread 2 prior to the direction being given. In addition it is submitted there was, in the hearing before the Judicial Registrar, evidence that part of the work that the applicant was to carry out on Spread 1 involved large crossings. This differentiated it from the type of work contemplated at Spread 2. The submission therefore is that, a dispute having arisen concerning the transfer, the grievance procedures required the respondent to allow the applicant to remain in his "normal … work" pending the outcome of the dispute resolution process. 18 For the respondent it is submitted that the requirement that "normal safe work" continue in the event of a dispute is designed to contend with a variety of disputes or claims arising between a respondent and one or more employees. It is submitted it would be at odds with other provisions of the Agreement to read the requirement narrowly to refer only to work being carried out by the applicant at Spread 2 at the time the instruction was given. It is said the purpose of the requirement is to ensure that the normal work required by the respondent of one or more of its employees continues, the only exceptions being that the work not be unsafe or abnormal. It is said the requirement should be seen as concerned with the continuity of the supply of labour and skill provided by the employees within the terms of their employment by the respondent. As to evidence, it is submitted there was a reliable history of the transfer of numerous employees of the respondent between jobs and locations, in accordance with their terms of employment, prior to and after the instruction being given to the applicant. 19 The words "normal safe work" are not defined in the Agreement. Some features of the Agreement provide marginal assistance to an understanding of the context in which those words are used in cl 29. Clause 1 provides the Agreement applies to the respondent, its contractors and subcontractors and Union members who are engaged on site. The words "on site" are defined to mean the work places along the right of way where the pipeline is to be permanently located. Clause 6, in addressing hours and work cycle, provides "an employee may be required to work as a member of a special team engaged on crossings, pipeline tie-ins, or other operations which must be performed at a time other than during their usual work hours". Clause 20(e) provides "an employee shall perform such duties as are within the employee's skill competence and training". 20 The reasons of the Judicial Registrar contain a finding of fact that compliance with the direction to transfer to Spread 1 was consistent with the applicant's normal safe work. There is no reason either in the Agreement or otherwise at law why the words "normal safe work" should not be open to such a finding. Specifically, there is nothing in the Agreement or the interpretation of it which requires the words "normal safe work" to be understood only to apply to the work which the applicant had been undertaking up to the date of the dispute at Spread 2 or work of a similar nature anywhere on the project. There is nothing inherently unreasonable or inconsistent with the Agreement for work which is both "normal" and "safe" being work which satisfies the requirements that the employees shall continue in such work in the event of a dispute or claim arising. At no time did the applicant contend that the work at Spread 1 was not "normal safe work". 21 The situation may arguably have been different had the learned Judicial Registrar not found that it was common for employees to be transferred from one Spread to another. If the Agreement allowed for transfer of employees from one site to another, but it was as a matter of fact unusual in practice for transfers to occur, it may be open to a finding it would not be within an employees' "normal safe work" to follow a direction to transfer from one Spread to another. 22 However, I do not consider any error of law has been demonstrated in the findings or conclusion of the Judicial Registrar either in construction of the Agreement or in relation to the findings of fact.
Conclusion 23 For these reasons I would dismiss the application. I certify that the preceding twenty‑three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice R D Nicholson.
Ward
Saipem Australia Pty Ltd