//
© 2026 Zoe. All rights reserved.
Zoe is a legal information platform. Always consult the Federal Register of Legislation for authoritative text.
[2024] FCA 1404
Federal Court of Australia
2024-12-06
Kennett J
Original judgment source is linked above.
Counsel for the appellant: The appellant appeared in person
Counsel for the first, third, fourth and fifth respondents: V Brigden
Solicitor for the first, third, fourth and fifth respondents: People + Culture Strategies
Counsel for the second respondent: The second respondent did not appear
MEGAN FARRELL (and others named in the Schedule) Third Respondent
order made by: kennett j DATE OF ORDER: 6 december 2024
THE COURT ORDERS THAT:
Leave to appeal 3 The weight of authority in this Court indicates that, although the order from which Mr Wu seeks to appeal is clearly a final order, the judgment is an interlocutory judgment for the purposes of s 24(1A) of the Federal Court of Australia Act 1976 (Cth) and leave to appeal is therefore required: Monash Health v Singh (2023) 327 IR 196; [2023] FCAFC 166 (Katzmann, Snaden and Raper JJ) at [44]. The respondents did not oppose a grant of leave to appeal, and that leave will be granted. The only issue remaining in the proceeding in the FCFCOA is the appropriate penalty for the contravention that his Honour found (which is not the subject of an appeal), and there is therefore no doubt that the order from which Mr Wu seeks to appeal settles the rights of the parties in respect of the other alleged contraventions. No purpose would be served by requiring Mr Wu to wait until after the determination of penalty before appealing.
Summary of the facts 4 At relevant times DSMJ designed and manufactured computer software. Mr Wu started working for Grow Super Ops Pty Ltd (Grow), a subsidiary of DSMJ, in January 2019. On 4 February 2020 he signed a new employment contract with Grow. 5 A letter from the CEO of Grow to Mr Wu dated 24 June 2021 informed Mr Wu that, from 1 July 2021, his "employing entity" would change from Grow to DSMJ and that this would "not impact anything except the entity paying your weekly wages". The evidence in the FCFCOA did not include any written contract between Mr Wu and DSMJ or agreement to novate the contract that he had signed with Grow. However, the parties conducted the case on the understanding that there was a contract between Mr Wu and DSMJ (the contract) which was in the same terms as the contract he had signed with Grow. (In some of the communications referred to below, Mr Wu and others referred to his employer as "Grow". This may have been because Grow was the leading entity in the corporate group or because of an assumption that it was still the entity that employed Mr Wu. Nothing turns on these references.) 6 The contract appointed Mr Wu to the position of Lead Systems Engineer on a full time basis. His duties were set out in a schedule to the contract as follows. 8. Duties: a) Deploying, automating, maintaining and managing AWS cloud-based production systems to ensure the availability, performance, scalability and security of production systems; b) Build, release and configuration management of production systems; c) Pre-production Acceptance Testing to help assure the quality of our products/services; d) System troubleshooting and problem-solving across platform and application domains; e) Suggesting architecture improvements and recommending process improvements; f) Evaluating new technology options and vendor products; g) Ensuring critical system security through the use of best in class cloud security solutions; h) Oversight and involvement in defining operational support processes; and any other duties and responsibilities assigned or delegated to you from time to time which are within your skills, qualifications and competencies. As a cross-functional team, you may be called upon to fulfil duties that sit outside your usual scope of duties from time to time. These will be kept to a minimum but can vary in type, scope and size. 7 By cl 6.1 of the contract Mr Wu agreed to work "the Hours of Work plus reasonable additional hours that are reasonably necessary for you to perform your Duties and/or to ensure our effective operation". "Hours of Work" was defined as having the meaning given in item 6 of the Schedule, which was as follows. 6. Hours of Work Your ordinary work hours will be 38 hours per week, plus additional hours (including weekends and public holidays) that are reasonably necessary for you to perform your Duties and/or to ensure our effective operation. 8 In November 2021, either DSMJ or the group of entities of which it formed part had taken on a new client, referred to in the material as "Mercy", which was generating a large amount of work. Senior management of DSMJ decided that it was necessary to have skilled staff on call outside ordinary working hours to be able to respond quickly to any problems that the client might be experiencing. These arrangements (the on-call arrangements) were developed over the following weeks and put into operation on 13 December 2021. 9 On 10 November 2021 Dr Tronson conducted a "stand up" meeting with members of his team, including Mr Wu, to discuss the introduction of an on-call roster and policy. Dr Tronson deposed that he described the on-call policy as "still in development" and said that he was working with Mr Colon to ensure that it would meet the needs of the business while being fair to the participants. He invited input from members of the team and received some feedback. Mr Wu did not contribute to that discussion. Mr Wu's evidence was that he was not able to participate properly because his computer was having microphone issues. 10 Another meeting of Dr Tronson's team, including Mr Wu, took place online on 15 November 2021. Dr Tronson and Mr Wu gave differing evidence concerning this meeting. In his affidavit (at [36]) Dr Tronson said: On 15 November 2021, I conducted a virtual meeting with my team, including Mr Wu, to discuss roster arrangements and the proposed on-call roster. During this meeting: a. I said words to the effect of: "I intend to first determine leave plans and availability over the Christmas break to ensure that we had coverage for business hours support". b. I said words to the effect of: Your availability over the Christmas break will also inform an on-call roster that will activate when we go "live" at the beginning of December 2021 because we can only roster on those people who were not already on leave to rotate through the on-call roster". c. I said words to the effect of: "The on-call arrangements are still under development and review, so I am unable to provide all the specifics about how it will operate, but I still expect that it will operate 24/7 and be a weekly roster". d. I discussed the initial version of the proposed on-call roster, which had Mr Wu rostered on-call from 13 December 2021, being around the time "Mercy" would be live on the platform. e. I said words to the effect of: We are developing a formal on-call policy, which this roster will ultimately form part of. The way this policy is implemented will include flexibility to work around your lives outside work, while still being able to meet our business and client commitments. This is your opportunity to provide feedback on processes you've experienced elsewhere and have input on the policy and processes we're developing." ... 11 Annexed to Dr Tronson's affidavit was a set of screenshots of a spreadsheet which appeared to comprise a roster of staff to cover the impending Christmas period and a longer term roster showing various staff members on call after hours for a week at a time. 12 Mr Wu appeared to accept that there was a meeting but did not agree that Dr Tronson had said the things set out in [36(b)-(c)] or that there had been any discussion of an initial version of the proposed roster (including any proposal that he be rostered on in the week beginning 13 December 2021). 13 Despite having annexed documents to his affidavit which he said were discussed at the meeting on 15 November, Dr Tronson accepted in cross-examination that discussion of Mr Wu being rostered on from 13 December might not have happened during that meeting; instead, he said, the meeting might have led to the preparation of the draft roster. The primary judge does not seem to have resolved this issue. The document that showed Mr Wu as being on call in the week of 13 December was fairly clearly a version of the relevant spreadsheet as at 29 November 2021. The primary judge (for reasons relating to Mr Wu's credibility) preferred the evidence of Dr Tronson where they were in conflict. However, in view of Dr Tronson's concession in the witness box, it seems safe to conclude that there was not a discussion of a specific draft roster on 15 November. 14 The first version of DSMJ's on-call policy (the policy) was sent to affected staff, including Mr Wu, on 26 November 2021. It included the following provisions in cll 4-5. 4. General Principles 4.1. On-call rosters where there is a need for GROW to ensure adequate out of hours cover to respond to an Incident. 4.2. Certain roles are contractually required to participate where it is determined that this is an essential requirement of the job. If this is the case, our people will be appropriately consulted and the requirements clearly specified. 4.3. Leaders will seek, wherever possible, to minimise any inconvenience of being on call. 4.4. The direct leader or designated leader in each area will ensure that the relevant equipment necessary to perform the service is made available to employees on-call. 5. Our People's Responsibilities 5.1. Our people must, during the On-Call Period: 5.1.1. be directly contactable by telephone, slack and email and remain in an area of mobile phone and internet connectivity; 5.1.2. Begin working on an Incident within 15 mins of GROW receiving notification of an Incident; 5.1.3. remain physically capable to carry out the duties required; 5.1.4. operate within GROW's applicable policies and procedures (as amended from time to time) at all times when On-Call; 5.1.5. keep other on-call team members employees and the on-call Senior Leader informed and updated of progress in dealing with an issue and escalate key decision points as appropriate and required by escalation procedures; and 5.1.6. keep GROW informed of any changes to your contact details, any booked annual leave or any other circumstances preventing you from carrying out on-call duties. 5.1.7. Subject to the above, it is not necessary for our people employees [sic] to remain at their home while on-call. 15 Clause 6 of the policy provided for remuneration in the form of an on-call retainer, to be paid to a person in respect of each period for which they were on call, and an hourly rate for actual time worked (with a minimum of one hour's pay for each occasion on which work was performed). 16 Clause 8.1 provided: 8.1 Leaders will monitor the frequency and length of unplanned out of hours working on a regular basis to ensure that no person is required to undertake additional work which may be detrimental to their health and wellbeing and therefore shall follow the below rest requirements: 8.1.1. A limit of an average of 48 hours work a week over a 3 month period 8.1.2. A limit of an average of 8 hours work during on-call period 8.1.3. A daily rest period of 10 uninterrupted hours between each working day. 17 Mr Wu sent Dr Tronson several messages with questions about the roster and payments under the policy. 18 Also on 26 November 2021, Mr Wu's general practitioner gave him a referral to a heart specialist (the heart specialist referral). There is no evidence that Mr Wu saw the specialist, let alone medical evidence of a specific condition. However, Mr Wu gave evidence that he had been experiencing symptoms for some months that he associated with his heart, and that on 24 November he had been asked to do a blood test. 19 On 29 November 2021 Mr Wu was sent a document which appeared to be a proposed amendment to the contract (the contract amendment). The contract amendment was curiously drafted. It comprised text that is fairly clearly a proposed new clause of the contract; however, inserted into that text was the following: This document shall serve as notice of an amendment to your current contract and must be signed along with acknowledging the On-Call Policy to confirm your understanding of the changes to your current Work Agreement between GROW inc. and yourself. 20 At the end of the document there appeared the words "Executed as an agreement to this amendment" above Mr Wu's name, with a space for him to insert an electronic signature. 21 The proposed contractual text provided that Mr Wu was "required to be On Call as part of a team providing out-of-hours services to our customers" and that his duties were outlined in the policy. It set out provisions in relation to remuneration, and return to regular hours after on-call work, that were essentially the same as the (then draft) policy. 22 On 2 December 2021 Mr Wu sent an email to Ms Farrell, Mr Colon and Dr Tronson, copied to other DSMJ staff members, which asked a number of questions about the contract amendment. Among these questions was whether staff on the roster would be provided with insurance and "necessary equipment and devices (e.g. company phones)". 23 The next day, 3 December 2021, there was an exchange of messages between Mr Wu and Mr Colon, on a messaging platform referred to as Slack, concerning Mr Wu's question about insurance. Mr Wu was raising a concern that the physical and mental health of workers who were on call, and their families, would be affected needing to stay awake in the early hours of the morning and by their phones ringing during those hours. 24 Later on 3 December 2021 there was a videoconference attended by Mr Colon, Dr Tronson, Ms Le and members of DSMJ's engineering team. (a) Mr Wu gave evidence that: (i) Ms Le told the meeting that, initially at least, there would be no system to call on-call staff automatically when incidents arose, so that "[e]mployees on roster are required to check emails and Slack messages for the incident alerts and warnings that IT monitoring systems sent"; (ii) Mr Colon told the meeting that if a staff member failed to respond to incidents within 15 minutes multiple times "the company will take actions accordingly"; (iii) Mr Wu asked that his name be taken off the on-call roster and Ms Le did so; and (iv) Mr Colon told the meeting there would be an updated version of the policy the following Monday and refused to have a thorough discussion. (b) Dr Tronson's evidence was that: (i) Ms Le told the meeting that staff were not required to check emails and Slack messages proactively while on call, and would be called when they needed to respond to an incident; (ii) he (Dr Tronson) reiterated and amplified this point, saying there was no expectation that staff would be actively monitoring Slack or email; (iii) Mr Colon spoke about a range of matters including questions about repeated and deliberate non-compliance; and (iv) Mr Colon told the meeting that the policy would continue to be developed. (c) The primary judge, at [50] and [55], made a finding consistent with the second aspect of Dr Tronson's evidence. In effect, therefore, his Honour rejected Mr Wu's evidence and submissions concerning staff being told that they would be required actively to monitor emails and Slack while on call. 25 Mr Wu's submissions placed emphasis on a document headed "Support After Hours Process and Escalation" (the escalation document), which appears to have been discussed during the videoconference on 3 December 2021. The copy of the document that is in evidence was last modified on 2 December 2021. It showed, by way of a diagram, a process where an "alert" would flow to the "IT Ops Engineer oncall" and the "Service Desk Oncall" and then potentially through various levels of escalation. This was put forward by Mr Wu as proof that, contrary to Dr Tronson's statements, staff who were "on call" would be required to stay awake and continually monitor message services in case of an alert. Dr Tronson's evidence, however, was that the document was incomplete. 26 I do not consider that the escalation document undermines his Honour's finding in any material way. The document was produced during the development of the policy rather than as a definitive statement of the relevant processes at the time they were implemented; it is at a very high level of generality (an entire process depicted by way of a simple diagram); and its focus is the pathways by which an issue would be "escalated" within Grow's (or DSMJ's) workforce rather than the specific mechanisms by which things would be communicated. It cannot realistically be relied on as evidence of the means by which DSMJ was envisaging that an alert would come to the attention of the staff who were on call. 27 On 6 December 2021 Mr Wu received a second version of the contract amendment. Once again it included the text set out at [19] above. (Mr Wu also sought to rely in the appeal on the text of an automated email under which the contract amendment was sent to him. The email referred to the contract amendment as a document "that requires your signature". However, it appears from the trial transcript that this document, while not expressly rejected by his Honour, was not received into evidence. No application was made to tender it as fresh evidence in the appeal. In any event, I do not consider that its reception would assist in any material way in resolving the issues in the appeal.) 28 Mr Wu also received a second edition of the policy on 6 December 2021. These documents were sent to other staff as well. Mr Wu sent an email to Ms Farrell and Mr Colon in the following terms. Hi Megan Hi Joe Upon reading the updated On-Call policy, it turns out that Grow requires its staff on roster to be on standby 24 hours a day, 7 days a week, for any incident that might come, which means more time on standby compared to the first version of On-Call policy. However, there is nothing mentioned for providing Grow's staff on roster the sufficient equipment (communication devices etc) for carrying out the work to be done outside Grow's normal business hours. Two questions: Do the members of Grow's ITOps team have to accept the Amendment to Contract - Rostered On Call and Call Out which we received from the Employment Hero system? If there is no call-out overnight or during the weekend, do we need to work through the whole business day or the whole next business day? Looking forward to your clarification. (Emphasis in original.) 29 Mr Colon replied as follows. Hi Jianhua, My apologies. the section for On Call was meant to show that the on call period is from 6pm to 8am, 365 days a year (including weekends and public holidays). Work hours are different from being on-call and therefore one is only On-call from 6pm to 8am during the week they are rostered on. It is the same amount of time on standby as the original version, but I agree it could be worded better and we can make that change simply. GROW will not be providing any additional equipment than we currently do for you to perform on-call duties. To answer your other questions, In order for us to pay the retainer fee and any work done, we do need everyone to sign the updated amendment to the contract. And, yes, you are still required to work the following business day after being on-call regardless if any call-out was necessary. We are not expecting people to stay awake throughout the night to be on-call, but only to perform any work should you be notified of an issue. Should there be a call-out during the on-call period then the start of the next day may be affected as per the start times in the policy. I hope this has clarified all your questions. 30 Mr Wu responded a few minutes later as follows. Thank you very much for the quick reply, Joe This does help clear out the few confusion that I had. And it is good to know that the acceptance to the Amendment to Contract - Rostered On Call and Call Out is optional. (Emphasis in original.) 31 Following this exchange of emails, Mr Wu sent a message to Dr Tronson via Slack. The message itself was not in evidence. Mr Wu's summary was that he confirmed to Dr Tronson that, because acceptance of "the on-call offer" was optional, he would not accept the offer, and Dr Tronson did not object. Dr Tronson's evidence was that he acknowledged the message but did not think it appropriate to comment further without first confirming DSMJ's position. He said that the actual text of the messages was not available because Mr Wu had deleted them a few minutes after sending them. He agreed that Mr Wu had conveyed his non-acceptance of the "on-call offer". 32 On 7 December there was an exchange of messages on Slack between Mr Wu and Ms Le, as follows. Jianhua Wu 3:42pm Hi Tuey I have removed my name from the spreadsheet you shared in the #on-call channel. I have notified Rohan that the deal Grow put forward isn't acceptable to me. The rate is too low. Please talk to Rohan, he will allocate resource for you. Tuey 4:42pm Thanks for letting me know Jianhua Sorry i thought I had erased it last Friday … Jianhua Wu 4:45pm I did see you removed my name and marked TBD for the week of December 13th. Anyway it is clear on both ends 33 It seems that Mr Wu deleted his name from the on-call roster on 7 December 2021. There was also a conversation between Mr Wu and Dr Tronson on 7 December 2021. Most of the conversation seems to have been about Mr Wu's dissatisfaction with the training and development opportunities he was being offered. Dr Tronson gave affidavit evidence that, during this conversation, he said to Mr Wu that on-call duties were not optional and noted that Mr Wu had no intention of performing those duties. Mr Wu denied this. Mr Wu was challenged in cross-examination on his version of this part of the conversation, while Dr Tronson was not. Bearing this in mind, together with the primary judge's assessment of their credibility, I proceed on the basis that Dr Tronson did say to Mr Wu on 7 December 2024 that participation in the on-call roster was not optional. 34 On 9 December 2021 Dr Tronson restored Mr Wu's name to the on-call roster. He also asked Ms Le, who was the "owner" of the document, to remove Mr Wu's ability to edit it. 35 A video conference took place between Mr Wu, Dr Tronson and Mr Colon on 9 December 2021. Mr Wu made an audio recording of the conversation, which was in evidence before the primary judge, together with a transcript which the parties agreed was accurate. The important aspects of the conversation, for present purposes, are as follows. (a) Mr Wu put the position that being on call was "not like a duty. We are talking about a new deal". He continued that "the rate is too low" and the company should be providing staff with the necessary equipment to deal with incidents. He also thought that the business should provide health insurance in view of the health risks from working at night and on the weekend. (b) Mr Wu was asked what an acceptable rate would be. He declined to nominate a figure but said that "[t]he gap is super wide". (c) After some discussion of these concerns the following exchange occurred. Joe Colon (10:04): The other thing that I think we need to be really clear about is that this is not a new deal. This is essentially us as an employer making changes to the existing contract and the role as we are allowed to do as our right as an employer. And with that in the DevOps team and with a few other teams, there is that change that we are making. And it's been decided that this role requires on call duties. Jianhua Wu (10:38): Yeah. I think when you say decided that we don't see the procedure and it didn't get the agreement from the team. And what the Grow propose to me, it's the amendment to my employment agreement, which I said specifically at this stage, the answer is no. And if Grow can offer more rate, provide the benefit which I raised up, we can talk. The message, I want to make sure you're clear. The message here is clear. All right. So the current deal that Grow put forward is totally not acceptable to me, Joe Colon (11:26): Unfortunately, as an employer, we have the right to make changes to an employee's contract. Jianhua Wu (11:35): You can make a change to the policy. You can make a change to contract, but it's for employee to agree or not. Joe Colon (11:41): It's actually not because we have the ability under your current contract to change the hours. And that includes on call. Jianhua Wu (11:55): Yeah. So please put what you said into an email, and then we can continue. Joe Colon (11:55): I just want to make it very clear that's what it is. And essentially what it's going to come down to is whether or not there's a breach of the contract by not performing on call duties. Jianhua Wu (12:08): Yeah. I think that you are breaching the agreement employment agreement by forcing people to do the work and okay. So anything you want to talk, anything clear message and that we exchange, if you think you have valid point, send the email to me. Just like what I exchanged with Rohan, Rohan that there should be concrete record and I want there is concrete record. Joe Colon (12:38): Yeah, that's fine. We can get that to you in the next few days. But essentially, as I said, it's for all DevOps, it's for BA, we have the rights to make a change to hours in contract. And that is something we've consulted with everybody. We, as a business have decided that that is a change that we are making and that we expect everybody to perform the duties as the reasonable request from us to perform the duties. Jianhua Wu (13:08): No, it's not duties. Let me again, it's a new deal. I don't accept the word of "it's duty" and there's no word in regards to the on call in my agreement. So please stop calling it a duty. All right. Grow is asking me to do more work. More work means more pay, and then the pay rate isn't good. And so that's the real case. I don't want you to use the kind of the sneaky wording and to sort of sway away from what we are talking about here. Rohan Tronson (13:56): We are noting your points. We will respond with an email. But I just want reiterate what Joe said and informed you, you are rostered on a call from the week starting on the 13th of December. Jianhua Wu (14:11): The answer is no, Rohan, until the deal is there. You are not going to make any direction, Rohan, in regards to, Ron, in regards to the roster, without the deal. All right? I haven't signed anything. So you don't make any sort of these instruction or direction, or you are in breach of employment law. (Emphasis in original.) 36 Mr Colon sent Mr Wu an email (copied to Dr Tronson and Ms Farrell) on the afternoon of 10 December 2021. After referring to some background matters the email said: Having regard to all of the matters discussed during the consultation period, and having regard to the operational needs of the business, I confirm that GROW has decided to implement the on-call arrangements, and that your position will form part of the on-call roster arrangements. Under these arrangements, you will form part of the IT Ops roster arrangement whereby each member of the team will perform on-call duties on an ongoing basis for 1 week out of every five weeks beginning from 13 December 2021. I note that you are rostered on that first week starting at 6pm on 13 December 2021. I acknowledge that you have informed me (on several occasions, including during our meeting on 9 December 2021) that you are unwilling to participate in the arrangements, and you have asked me to now confirm GROW's decision in writing. … As you are aware, the terms of your employment contract set out a number of provisions regarding your duties and your obligation to perform certain hours of work (which includes reasonable additional hours). For example:
Mr Wu's claims in the court below 53 Mr Wu claimed relief under several provisions of the FW Act against all five respondents. A short summary of the relief he claimed is as follows: (a) a declaration that DSMJ had breached his employment agreement; (b) an order that DSMJ change the recorded reason in its internal systems for the termination of his employment from "serious misconduct" to "unlawfully terminated"; (c) orders for compensation for various forms of loss: (i) compensation for income lost since his termination; (ii) compensation for loss of future earning capacity; (iii) compensation for loss of past and future superannuation contributions; (iv) compensation from losing his entitlement to "ESOP Options". (The exact nature of these options does not appear to have been explained; however, from context, it appears they were options to purchase shares in DSMJ, with various different exercise prices); (v) compensation for distress, humiliation and hurt arising out of the unlawful termination of his employment; (d) under ss 539 and 550 of the FW Act, orders that each of the respondents pay Mr Wu pecuniary penalties for the alleged contraventions or for being involved in them. 54 Mr Wu claimed those orders on the basis of several alleged contraventions of the FW Act. At a high level, these contraventions were alleged to be: (a) the taking of three adverse actions against him because of his exercise of a workplace right in contravention of s 340(1) of the FW Act. The three adverse actions were said to be threatening to terminate his employment; organising the termination of his employment; and terminating his employment with notice. (b) coercion in contravention of s 343 of the FW Act, instantiated by the following allegations: (i) Mr Colon (aided by Dr Tronson) coercing Mr Wu to accept the on-call arrangement by threatening to terminate his employment; (ii) Dr Tronson, Ms Farrell and DSMJ coercing Mr Wu to accept the on-call arrangement by organising the termination of his employment; and (iii) Ms Farrell and Mr Lim coercing Mr Wu to accept the on-call arrangement by threatening to terminate his employment. Each of these alleged contraventions was also specified to be "because" of Mr Wu exercising certain workplace rights, although that causal relationship was not explained wholly on the pleadings. Mr Wu also alleged that Mr Colon, Dr Tronson, Ms Farrell and Mr Lim had organised, or taken, or threatened to take actions against him with the intent to coerce him not to exercise his workplace rights. Each of these actions was said to have contravened s 343 of the FW Act. It appears Mr Wu also pleaded these alleged acts of coercion as adverse actions within the meaning of s 342; (c) the application of undue influence or pressure in contravention of s 344 of the FW Act in the following ways: (i) Mr Colon informing Mr Wu that he might be in breach of his employment contract if he refused to accept the on-call arrangement. Mr Wu contends this statement was false; (ii) Mr Colon telling Mr Wu that his failure to accept the on-call arrangement would be unfair and unreasonable to other staff members (a statement Mr Wu contends was misleading); (iii) Mr Colon "coercing" Mr Wu to accept the on-call arrangement by threatening to terminate his employment; (iv) Dr Tronson repeatedly "compelling and directing" Mr Wu to carry out work that (Mr Wu alleged) fell outside what he had agreed in his employment contract while knowing that Mr Wu had not agreed to an amendment. (v) Mr Farrell and Mr Lim threatening to terminate Mr Wu's employment if he did not accept the on-call arrangement or the separation proposal provided by DSMJ; and (vi) being "coerced" to accept that the on-call arrangement fell within the terms of his employment contract before DSMJ would discuss with him how to accommodate his "heart problem" (Mr Wu also says that DSMJ breached s 19 of the Work Health and Safety Act 2011 (Cth) (WHS Act)); (d) contraventions of the Award, which were contraventions of s 45 of the FW Act, being: (i) DSMJ failing to provide Mr Wu with a copy of the Award (cl 3.3); (ii) DSMJ failing to tell Mr Wu in writing that his employment would be terminated if he did not accept the on-call arrangement (cll 24.2 and 24.5(a)); and (iii) a failure to follow the dispute resolution clause set out by cl 26 of the Award; (e) Mr Wu also alleged that DSMJ had contravened s 62 of the FW Act by requesting that he work more than 38 hours per week in circumstances where that was unreasonable. 55 As noted above, the primary judge upheld Mr Wu's claim that DSMJ had failed to provide him with a copy of the Award, but dismissed all his other claims. 56 In respect of the allegations of adverse actions, the primary judge found that the threats to terminate Mr Wu's employment were made because of his refusal to perform his duties as directed, which is not the exercise of a workplace right; that the organisation of Mr Wu's termination without notice did not take place because he was given notice, and that that claim was inconsistent with the claim that DSMJ had threatened to terminate his employment; and that Mr Wu's employment was terminated because he failed to comply with a lawful direction. In so finding, the primary judge decided that Mr Wu's obligations under his employment contract did extend to accepting the on-call arrangement. That finding meant that Mr Wu's claims in respect of being coerced to agree to an amendment to his employment contract must fail. 57 The primary judge dismissed Mr Wu's claims of undue influence and coercion because he found that the statements about the consequences of Mr Wu failing to comply with a lawful direction were simply correct observations about his obligations under his employment contract, and that the work required under the on-call roster would indeed need to be shared between a smaller group of employees if Mr Wu refused to perform it. As a matter of fact, the primary judge did not accept that Dr Tronson had used aggressive or threatening language. The primary judge also did not accept that Mr Farrell and Mr Lim threatened to terminate Mr Wu's employment, and that Mr Wu had simply had his options explained to him. Finally, the primary judge did not accept that DSMJ required Mr Wu to sign an amendment to his contract before it would discuss his heart problem: the Court had no evidence that a heart issue prevented the applicant from participating in the on-call arrangement. 58 As to the alleged contraventions of the Award, the primary judge found the Award did not oblige DSMJ to notify Mr Wu in writing that his employment would be terminated if he failed to participate in the on-call arrangement, and that he was consulted about its introduction as required. The primary judge also found DSMJ was not obliged to refer the dispute between it and Mr Wu to the Fair Work Commission. The primary judge accepted that DSMJ had not been given a copy of the Award, and indicated it would hear from the parties on the appropriate orders in respect of that contravention. 59 Finally, the primary judge found that DSMJ had not contravened s 62 of the FW Act because appropriate remuneration was offered for being on call; on-call arrangements are commonplace within the information technology industry; Mr Wu was given notice of the intention to introduce the on-call arrangement and consulted on the policy that would support it; that there was nothing in Mr Wu's personal circumstances that meant he should not be asked to participate in the on-call arrangement, including his claimed health problems; and that the request to work additional hours as part of the on-call arrangement was therefore reasonable in the circumstances. The primary judge rejected Mr Wu's claims that DSMJ had breached s 84 of the WHS Act for the same reasons.
The appeal 60 The grounds in Mr Wu's amended notice of appeal are very lengthy and include what are in substance submissions. Rather than set all of these grounds out, it is preferable to address the issues in the order in which they were presented in Mr Wu's oral submissions (noting that grounds 4, 5(g), 14 and 15 were not pressed). 61 On 24 July 2024 the respondents sought an extension of time in which to file a notice of contention comprising three grounds. That application was listed for hearing concurrently with the main appeal and the extension of time was granted. The extension was sought some weeks before the appeal was due to be heard, and time could therefore be allowed for Mr Wu to consider the grounds of the notice of contention and respond to them in writing. No prejudice was occasioned to him by the late filing of the notice of contention and it would not have been in the interests of justice for the respondents to be shut out from raising the arguments contained in it. I will deal with the grounds of contention in conjunction with the appeal grounds to which each is connected. 62 Before doing so, however, it is useful to address some more general issues that inform the difference between the parties on many if not most of the specific grounds.
Overview 63 Although Mr Wu sought compensation for loss arising from the termination of his employment, and a declaration that DSMJ had breached his employment contract, he did not allege unfair dismissal pursuant to Part 3.2 of the FW Act or seek any remedy under Division 4 of that Part. Nor did any of the contraventions alleged in the court below, or Mr Wu's grounds of appeal, grapple in any clear way with whether DSMJ was entitled to terminate his employment. 64 Most of Mr Wu's specific arguments expressly or impliedly involved a proposition that, in the written and oral exchanges summarised above, the respondents were seeking either to amend his employment contract unilaterally or to force him to accept an amendment. The respondents, on the other hand, submit that they proceeded on an understanding that Mr Wu could be directed to participate in the on-call arrangements under the terms of his existing contract; that this is what they did (or at least purported to do); and that Mr Wu's employment was terminated because he refused to comply with what his employer believed to be a lawful direction. 65 The respondents' position is to be preferred. 66 It is true that DSMJ's position was in some respects less than clear, and may have shifted somewhat during November-December 2021; although this impression may have been created by Mr Wu having had discussions with several of the respondents who put things differently at different times. 67 The contract amendment that was sent to Mr Wu on 29 November and again on 6 December contained words to the effect that it "must be signed". However, in context, that text should be taken to mean that the amendment would only come into effect once the document was signed. Responding to Mr Wu's questions on 6 December, Mr Colon observed that the contract amendment needed to be signed in order for DSMJ to pay the additional remuneration that was to be made available as part of the on-call arrangements. It is not clear why this should be so. Seemingly inconsistently with that position, in his email on 10 December 2021 Mr Colon asserted that Mr Wu would be "additionally, and generously compensated" under the on-call arrangements, without referring to any need for the contract amendment to be signed. By the time of the meeting on 14 December 2021, Mr Colon was taking the position that the amendment was "not a changing of the contract" and "for purely clarification purposes". 68 There were also statements by Mr Colon (in the discussion on 9 December 2021) and by Ms Farrell (in the discussion on 17 December 2021) to the effect that DSMJ had the ability unilaterally to change Mr Wu's employment contract. These may be the genesis of Mr Wu's belief that DSMJ was trying to impose new contractual terms on him. Mr Wu's contract did not contain a provision allowing DSMJ to vary its terms without his consent, and the fact that he was asked to sign an amendment is inconsistent with DSMJ holding a belief that his consent was not required. It seems implausible that relatively senior staff would have believed that the contract could be varied without Mr Wu's consent, at least if they had taken advice on the issue. These statements by Mr Colon and Ms Farrell may reflect a less than fully informed understanding or they may be instances of loose language. 69 In any event, DSMJ had its position relatively clear by around 10 December 2021 (before the on-call arrangement commenced and before things were brought to a head by Mr Wu's refusal to participate). In his email of that day, set out at [36] above (which was obviously more carefully composed than his oral statements), Mr Colon referred to specific provisions of Mr Wu's contract and put the position that performance of the on-call arrangements was part of Mr Wu's "Duties" and part of the "reasonable additional hours" he was required to work under the contract. Mr Colon's articulation of the options on 14 December 2021 (ie, that Mr Wu could participate in the on-call arrangements or things would move down a "disciplinary" pathway) was consistent with this position. The same position was expressly and clearly put in Ms Farrell's email of 24 December 2021 (as the basis on which Mr Wu's employment was to be terminated with effect from 10 January 2022) and in Ms Farrell's letter of 7 January 2022. 70 Three points arise from this. First, the suggestion that DSMJ could unilaterally amend Mr Wu's contract was raised only fleetingly and never in writing. When DSMJ started to say that Mr Wu's refusal to participate in the on-call arrangements was a breach of his obligations, it did not rely on any assertion that the text of the contract amendment had become part of the contract. Secondly, by the time the discussions turned to that refusal having potential disciplinary consequences (ie, termination of employment), the respondents were only mentioning the contract amendment in order to downplay its importance when Mr Wu raised the topic. Thirdly, the only ground articulated for threatening to terminate (and then terminating) Mr Wu's employment was that he had been directed to work additional hours (pursuant to his existing contract) and had refused to do so. 71 The issue of a payslip to Mr Wu on 15 December 2021, showing that his employment had been terminated, is not inconsistent with this analysis. The chronology of events set out above indicates that by 14 December 2021 the parties' positions were clearly irreconcilable; the only issue was whether separation would be on mutually agreed terms or not; and Mr Wu was told that he was on "gardening leave" with his access to sensitive systems suspended. 72 Many of Mr Wu's specific complaints concerning the reasoning of the primary judge are therefore distracting or misconceived (or both). There was no coercion, or undue influence or pressure, directed at forcing him to agree to a contract amendment. The facts outlined above might be thought to give rise to questions as to whether the direction to Mr Wu to participate in the on-call arrangements was a lawful one under the terms of his employment contract; however, no case was pleaded along these lines and no ground of appeal (except, indirectly, ground 13) sought to raise the issue. 73 This analysis of the case (which is consistent with the conclusions reached by the primary judge) disposes of Mr Wu's claims other than in respect of adverse action, breaches of the Award and breach of s 62 of the FW Act. Adverse action is the subject of grounds 6 to 11; obligations under the Award are the subject of grounds 14 and 16; and the s 62 issue is touched upon by ground 6 and 17. Nevertheless, I will deal below with all of the grounds that were pressed.
Grounds 12, 13, 19 and 20 74 These grounds allege error in the primary judge's reasoning concerning Mr Wu's complaint of undue influence or pressure. The complaint invokes s 344 of the FW Act, which provides as follows. 344 Undue influence or pressure An employer must not exert undue influence or undue pressure on an employee in relation to a decision by the employee to: (a) make, or not make, an agreement or arrangement under the National Employment Standards; or (b) make, or not make, an agreement or arrangement under a term of a modern award or enterprise agreement that is permitted to be included in the award or agreement under subsection 55(2); or (c) agree to, or terminate, an individual flexibility arrangement; or (d) accept a guarantee of annual earnings; or (e) agree, or not agree, to a deduction from amounts payable to the employee in relation to the performance of work. Note 1: This section is a civil remedy provision (see Part 4-1). Note 2: This section can apply to decisions whether to consent to performing work on keeping in touch days (see subsection 79A(3)). 75 The acts of DSMJ and its staff that were said to constitute the application of undue influence or pressure are set out above at [54(c)]. The primary judge dealt with these allegations at [77] - [80] of his reasons. As noted earlier, his Honour found that: (a) the statements to the effect that not accepting the on-call arrangements might be a breach of Mr Wu's employment contract and that his employment could be terminated were simply correct statements about his obligations and the potential consequences of breaching them; (b) the statement that if he did not participate in the arrangement an additional burden would fall on other staff was no more than a correct statement about what would occur; (c) on the evidence, Dr Tronson did not use aggressive and threatening language; and (d) on the evidence, Mr Wu was not required by DSMJ to sign the proposed amendment to his contract before it was prepared to discuss management of his heart problem. 76 Ground 12 alleges a mischaracterisation of the allegation in respect of Dr Tronson. The primary judge summarised the allegation as being one of Dr Tronson "using an aggressive tone and misleading words to suggest that the applicant's declining of the on-call arrangement was a refusal to accept duties as per his employment contract". It is said that the real complaint concerning Dr Tronson's conduct was about the "repetitiveness" of directing the applicant to participate in the on-call arrangements. 77 It does appear that Mr Wu's complaint was put in this way in Mr Wu's amended application in the FCFCOA but was not dealt with in these terms by the primary judge. However, this simply means that one of the (many) arguments advanced below has not been determined; it does not mean that the decision of the primary judge was wrong. It is desirable that this Court should decide the issue, on the existing evidence, rather than remitting the matter for reconsideration of this single point by the FCFCOA. This is a further reason why, at least as to ground 3 of the notice of contention (which addresses this issue), it is appropriate to grant leave to file that notice. 78 If DSMJ was entitled to direct Mr Wu to participate in the on-call arrangements, persistence on the part of Dr Tronson in directing or trying to persuade Mr Wu to participate in those arrangements did not constitute undue pressure. Even if DSMJ was not so entitled as a matter of law, there is no evidence capable of suggesting that Dr Tronson was doing anything more than attempting to achieve compliance by Mr Wu with what the respondents understood to be his obligations as an employee. This was not pressure directed at securing a decision of a kind mentioned in s 344 of the FW Act. Ground 12 therefore does not advance Mr Wu's position. Ground 3 of the notice of contention should be upheld. (Although some argument was directed at the primary judge's finding that Dr Tronson did not use aggressive and threatening language, ground 12 did not put the correctness of this finding in issue.) 79 Ground 13 alleges that the primary judge erred in proceeding on the basis that Mr Wu was obliged to accept the on-call arrangement. On my reading, his Honour was proceeding on an understanding that Mr Wu was contractually obliged to comply with the on-call arrangements rather than having an obligation to "accept" the proposal to introduce them. In so far as his Honour proceeded on that basis, it has not been shown to be incorrect. As noted earlier, Mr Wu's claims in the Circuit Court did not put in issue the entitlement of DSMJ, as a matter of contract, to require him to work additional hours including by way of being on call. Nor did his submissions grapple with the interpretation of cl 6.1 of the contract and cl 6 of the schedule thereto (which are quoted at [7] above), or attempt to relate the expression "reasonable" in those provisions to the circumstances of DSMJ in November - December 2021. (The reasonableness of requiring Mr Wu to participate in the on-call arrangements was addressed in the context of 62 of the FW Act. The primary judge found that the requirement to participate was reasonable in that context, which may have contributed to his understanding that it was permitted under the contract. For reasons explained below, I have found that his Honour's findings on s 62 were not erroneous.) 80 Grounds 19 and 20 allege that the primary judge failed to make findings as to whether what Mr Wu referred to as the "on-call offer" was an "agreement or arrangement" under the National Employment Standards or under a term of a modern award, and thus failed to apply the test in s 344 of the FW Act correctly. There are two answers to this. First, in the absence of any conduct constituting the exertion of "undue influence" or "undue pressure", s 344 has no work to do regardless of whether the end in view was an "agreement or arrangement" of the relevant kind. Secondly, because Mr Wu was simply being directed to perform duties in accordance with what the respondents understood to be the proper interpretation of his employment contract, it follows that he was not being pressured to make an agreement or arrangement of any kind. Grounds 19 and 20 therefore do not add anything of substance to Mr Wu's arguments concerning s 344 or the case more generally.
Grounds 2 and 3(b) - (f) 81 Ground 2 alleges error in a statement by the primary judge to the effect that on 1 July 2021 Grow changed its "business trading name" to DSMJ. This statement was made in paragraph [1] of the reasons, in the course of introducing the case. It appears not to be strictly correct; however, the inaccuracy does not have any bearing on the correctness of the primary judge's conclusions. 82 The true position, according to ground 2, was that Grow and DSMJ were different entities; and that on 1 July 2021 Mr Wu ceased to be employed by Grow and began to be employed by DSMJ. This accords with the documentary record referred to above and the basis upon which the parties proceeded in the FCFCOA (notwithstanding what appeared to be some attempts to move to a different position on the part of Mr Wu during the appeal). 83 Ground 2 also asserts that an appreciation of the true position would have led to a finding that DSMJ had no "business obligation" to support it imposing a requirement on Mr Wu to work in the on-call roster in December 2021. However, no such argument seems to have been put by Mr Wu in the FCFCOA (at least in writing). It is apparent that Grow and DSMJ were related entities whose operations were intertwined. However, the evidence did not descend into detail as to the exact nature of the relationships between DSMJ, Grow and the latter's clients - presumably because no issue had been raised that made it necessary to go into the detail of those relationships. Furthermore, even if DSMJ did not have binding obligations to provide support for the Mercy project, it does not follow that, having undertaken the task of providing such support, DSMJ was not entitled to give directions to its employees accordingly. 84 Ground 3 alleges that the primary judge "failed to take into proper consideration of all the key documents before him in making his judgement". In its terms, this is a completely unparticularised allegation of error that provides no assistance to the Court. I have therefore treated ground 3 as limited to the documents referred to in paragraphs (a) to (g) thereof. (Paragraphs (h) and (i) allege failure by the primary judge to have proper regard to Mr Wu's "claim form" (evidently a reference to his originating application) and written submissions. This is also unhelpful as a ground of appeal in that it provides no indication of where the primary judge is said to have gone wrong.) 85 In his oral submissions Mr Wu treated the alleged failure of the primary judge to consider the following documents (listed in grounds 3(b) to (f)) as linked to the proposition in ground 2: (a) the proposed contractual amendment (referred to at [19] above); (b) the escalation document (referred to at [25] above), which is alleged to demonstrate that Mr Wu was required to check email and Slack messages while on call and therefore that Dr Tronson "lied" to the primary judge; (c) Mr Colon's email of 6 December 2021 (referred to at [29] above) stating that Mr Wu would need to sign the contract amendment in order to receive payment for performing on-call duties; (d) DSMJ's email to Mr Wu of 6 December 2021 asking him to sign the contract amendment (referred to at [27] above); and (e) the recordings and transcripts of conversations on 9 and 17 December 2021 (referred to at [35] and [47] above) which are said to prove that the respondents required Mr Wu to sign the contract amendment. 86 These documents are not relevant to the point sought to be made by ground 2. They are relevant to a broader understanding of the basis on which Mr Wu's employment was terminated, the relevance of the contract amendment to the issues in the case, and (in the case of the escalation document) the reasonableness of the additional work that Mr Wu was being directed to perform. It is true that these documents are not canvassed in the reasons of the primary judge. However, that does not take Mr Wu very far because, for reasons outlined above at [83], they do not have the significance contended for.
Ground 16 87 Ground 16 alleges that the primary judge erred by failing to find that the respondents had contravened cl 24.2 and 24.5(a) of the Award). 88 Clause 24 of the Award provided as follows. 24. Consultation about major workplace change 24.1 If an employer makes a definite decision to make major changes in production, program, organisation, structure or technology that are likely to have significant effects on employees, the employer must: (a) give notice of the changes to all employees who may be affected by them and their representatives (if any); and (b) discuss with affected employees and their representatives (if any): (i) the introduction of the changes; and (ii) their likely effect on employees; and (iii) measures to avoid or reduce the adverse effects of the changes on employees; and (c) commence discussions as soon as practicable after a definite decision has been made. 24.2 For the purposes of the discussion under clause 24.1(b), the employer must give in writing to the affected employees and their representatives (if any) all relevant information about the changes including: (a) their nature; and (b) their expected effect on employees; and (c) any other matters likely to affect employees. 24.3 Clause 24.2 does not require an employer to disclose any confidential information if its disclosure would be contrary to the employer's interests. 24.4 The employer must promptly consider any matters raised by the employees or their representatives about the changes in the course of the discussion under clause 24.1(b). 24.5 In clause 24 significant effects, on employees, includes any of the following: (a) termination of employment; or (b) major changes in the composition, operation or size of the employer's workforce or in the skills required; or (c) loss of, or reduction in, job or promotion opportunities; or (d) loss of, or reduction in job tenure; or (e) alteration of hours of work; or (f) the need for employees to be retrained or transferred to other work or locations; or (g) job restructuring. 24.6 Where this award makes provision for alteration of any of the matters defined at clause 24.5, such alteration is taken not to have significant effect. (Emphasis in original.) 89 In the FCFCOA, Mr Wu alleged that DSMJ had contravened cl 24.2 and 24.5(a) in that it "did not give me in writing that my employment would be terminated should I not accept the Amendment and the Policy during the consultation period". 90 The primary judge dealt with this point at [87] - [93] of his reasons. His Honour accepted that the introduction of an on-call roster amounted to a "significant change" that required consultation under the Award (at [89]). His Honour was also satisfied that drafts of the policy had been circulated to all affected personnel and consultation had occurred over a period of around six weeks, including individually with Mr Wu (at [90]-[91]). His Honour continued (at [92] - [93]): In my view, there was no requirement for the first respondent to inform the applicant in writing that the introduction of the on-call roster would result in his termination if he failed to participate in it. The change being considered related to the applicant's hours of work. He was extensively consulted about that. When the change was introduced there was no intention to terminate the applicant's employment. It only came about due to his continued refusal to participate in the roster. In my view, the relevant consultation was carried out and no breach of the Award is apparent. 91 Mr Wu appears to submit, in essence, that the significant change proposed by DSMJ was introduced by way of an employment contract variation; and his employment was terminated for declining to agree to the amended contract. He says that, if part of the proposed change was that refusal to accept the contract variation could lead to termination, that was required to be disclosed in writing (and it was not disclosed). 92 The logic of this argument is difficult to follow. At least prima facie, a change to Mr Wu's employment contract would have had to be agreed by him in order to take effect; it could not have been imposed by DSMJ without his agreement, and "consultation" under cl 24 of the Award would have been otiose. Meanwhile, it is very difficult to see how Mr Wu's decision not to agree to a variation of his employment contract could have formed a proper basis for terminating his employment. It is also difficult to see how DSMJ could have given itself power to terminate for that reason by any "changes in production, program, organisation, structure or technology" without the individual agreement of the workers concerned. The theory of the case advanced by Mr Wu thus appears to make cl 24 of the Award irrelevant. 93 The preferable understanding of what occurred (as discussed above) is that Mr Wu's employment was terminated because he refused to comply with what in DSMJ's view was a lawful direction - consistent with his existing contract - to participate in the on-call arrangements. The introduction of those arrangements was, as the primary judge accepted, a significant change to DSMJ's workplace arrangements which called for consultation under cl 24 of the Award. However, the termination of Mr Wu's employment was not something that was proposed as part of that change; it was envisaged that he, along with other employees, would participate. Nor was the prospect of termination of employment for failure to comply with a lawful direction something new that was being proposed as part of such a change. The primary judge therefore did not err in finding that the prospect of termination was not required to be drawn to Mr Wu's attention as part of a consultation process under cl 24.
Ground 1 94 Ground 1 alleges that the primary judge erred by allowing the respondents to rely on a new version of the affidavit of Dr Tronson in substitution for that which had earlier been filed. 95 Dr Tronson's affidavit was originally filed on 7 March 2023 (the 7 March affidavit). Mr Wu filed an interlocutory application seeking that the affidavit be removed from the proceeding on the basis of several technical defects and the alleged falsity of some of the evidence. The alleged falsity arose because Dr Tronson had deposed to his recollection of some conversations which - as was revealed by an affidavit of Mr Wu on 20 July 2023 - Mr Wu had covertly recorded. The primary judge determined Mr Wu's interlocutory application on 3 August 2023 and directed that the technical defects in the affidavit should be cured by the filing of a compliant version. 96 The new version of Dr Tronson's affidavit was filed on 10 August 2023 (the 10 August affidavit). On the same day the respondents' solicitors sent Mr Wu a copy of the 10 August affidavit, together with a marked up version of the 7 March affidavit showing the changes that had been made. The marked up version was also included in the respondents' tender bundle in the FCFCOA. The hearing commenced on 14 August 2023 and Dr Tronson was called on the third day of the hearing. 97 The parts of the 7 March affidavit giving Dr Tronson's recollection of conversations were not relied on where recordings and transcripts of those conversations had been tendered by Mr Wu, as the respondents accepted that the recordings were the best evidence of what had been said. The 10 August affidavit omitted these passages and was therefore considerably shorter than the 7 March affidavit (which the respondents did not read). Otherwise, the differences between the two affidavits were very limited. 98 Mr Wu submits that the process adopted was unfair to him. I reject this submission. (a) It is not the case (as Mr Wu suggested) that he was confronted with a new affidavit on the third day of the trial and just before he had to cross-examine Dr Tronson. He had had the new affidavit, together with a marked up version showing the changes, for six days. The substantive effect of the changes was to omit material which the respondents no longer relied on (and which therefore did not need to be challenged in cross-examination). (b) Mr Wu's other complaint appears to be that the documents annexed to the 10 August affidavit were blurred. There is some truth in that; however, the documents were exactly the same as those annexed to the 7 March affidavit, which Mr Wu had had for months (and which were included in the respondents' tender bundle and thus accessible during the hearing).
Ground 5 99 Ground 5 is as follows (omitting aspects that were not pressed). 5. The Judge erred or/and failed in taking a sensible, balanced, appropriate approach in considering what evidence that he should have taken into consideration in making his judgments or/and orders. a. He erred in taking into consideration of the evidence (in paragraphs 21 and 40 of his judgement) which had been struck out in making his judgment; further, he erred in not striking out evidence which had been ruled out from his copy of parties' affidavit; and b. He erred in taking preference of the respondents' evidence (in paragraphs … 49, … of his judgement) which had been proved to be contradictory, or untruthful, or illogical, or implausible, or unreliable given by the Third to Fifth Respondents; and c. He erred in quoting or adopting evidence (in paragraphs 15, … of his judgement) which did not exist; and d. His errors set out at paragraph 1 above; and e. He did not take preference or into consideration of the evidence in the form of business documentation that were sent or shared to me, or produced by the DSMJ, when the Third to Fifth Respondents' oral evidence was inconsistent to those evidence; and f. He erred in making a finding (in paragraph 14 of his judgment) of my evidence in the form of "words to the effect" affected my overall credibility and reliability as a witness; however, adopted the Third and Fourth Respondents' evidence in the form of "words to the effect" (paragraphs 27, 28 and 40 of his judgment) which they prepared while they had access to a copy of audio recording. Had the Judge made his findings impartially, he would have found that my credibility and reliability as a witness was not damaged. Further, the Judge failed to consider that I made the audio recording because I was made redundant by the subsidiary of the DSMJ on 25 March 2020 without prior notice though that decision was later revoked; … Had these errors or failures were not made out, the Judge should find my evidence was preferable compared to the represented respondents' where there is conflict. 100 I have treated paras (a) to (f) as constituting the particulars of the broad allegation of error in the chapeau of ground 5. It is necessary to deal with each of these paragraphs in turn (other than paragraph (d), which repeats the allegations in ground 1).
Paragraph (a) 101 As to [21] of the reasons, it is correct that the reference to "14 December 2021" in the relevant part of Ms Farrell's affidavit was not read. However, it was effectively reinstated by the answer to a question in cross-examination. In any event the point is insignificant. 102 As to [40], it is correct that the paragraph of Mr Lim's affidavit in which he denied making a statement to the effect that DSMJ was entitled to change the employment contract had not been read. The reference to that denial as part of the evidence was erroneous. However, again, it has no significance. First, in his oral evidence Mr Lim denied that he or Ms Farrell believed they had a right to change Mr Wu's contract or that they were purporting to do so; he said that they had formed the view that the new arrangements could be introduced under the existing contract. Secondly, [40] of the reasons is simply part of a summary of the evidence, recited without comment, and nothing appears to have been made of it by the primary judge. It was not dispositive of any issue. The error at [40] does not justify setting aside the judgment.
Paragraph (b) 103 Paragraph [49] of the reasons refers to consultation concerning the development of the policy and a proposal that Mr Wu would be rostered on from 13 December 2021. It is part of the primary judge's summary of Dr Tronson's evidence. Its position in the chronological sequence might be taken to suggest an acceptance that the proposal that Mr Wu be rostered on from 13 December 2021 was extant by around the middle of November 2021. 104 As outlined above at [13], the earliest document in evidence in which Mr Wu was rostered on for 13 December 2021 bears a date stamp of 29 November 2021. That version, at least, could not have been discussed at a meeting in mid-November. When this was raised with Dr Tronson in cross-examination, he accepted that he might have been wrong about this point of detail and the draft roster might have come into existence after that meeting. Nothing turns on this. It does not (as Mr Wu suggested) indicate that Dr Tronson was a liar who should not have been believed in any respect. Nor does it demonstrate any error (let alone a material error) in the reasons at [49]. The exact time at which a roster was first drafted proposing that Mr Wu would be on call from 13 December 2021 does not matter, and the primary judge did not place any particular timing on that event.
Paragraph (c) 105 The passage of the reasons which is the subject of complaint (at [15]) is as follows. The Court does not accept the applicant's assertions that Mr Colon told him in a conversation on 14 December 2021 that "you have to sign the amendment to your contract". The statement Mr Wu relied on in the transcript gave rise to Mr Colon saying, "that was not optional". Mr Wu replied, "you got back to me in the email that if people don't be in the roster they won't get $750.00. To me, that's an indication of optional". The Court accepts that the applicant continually conflated signing the amendment to the Contract with participating in the roster. 106 Mr Wu submits that the second and third sentences of this passage were not in the evidence but were "fabricated by the respondents in their submissions". This is another storm in a teacup. 107 Paragraphs [13] - [14] of the primary judge's reasons explained part of the reason why his Honour had reservations about Mr Wu's credibility and preferred the evidence of the respondents. Paragraph [14] noted in this connection that Mr Wu had covertly recorded conversations and then, without disclosing that he had recordings, deposed to those conversations in his affidavit using the phrase "words to the effect". This was the context for [15]. 108 In his affidavit of 21 December 2022, Mr Wu deposed to Mr Colon having said "words to the following effect: 'you have to sign the Amendment to your contract'". These words did not appear in the transcript of the conversation, made from Mr Wu's recording and later tendered by him. He was cross-examined on this. Then, in the respondents' closing submissions at [6], the following submission was made (referring to the cross-examination of Mr Wu). Some matters were included in Mr Wu's affidavit that simply do not appear in the recordings, most notably the statement attributed to Mr Colon at CB 290 during the 14 December 2021 meeting: "you have to sign the Amendment to your contract". The statement Mr Wu relied on in the transcript as giving rise to that was Mr Colon saying "that was not optional" in response to Mr Wu's statement that "you got back to me in the email that if people don't be in the roster, they won't get $750. To me, that's an indication of optional": T95.9-42. He insisted that the words "It was never optional" in connection with participation in the roster was the same as saying "you have to sign the amendment to your contract": T96.2-9. Mr Wu continually conflated signing the Amendment to the contract with participating in the roster. 109 In this passage, the words "giving rise to that" must be taken to be identifying the part of the conversation that Mr Wu said he was recalling when he included the inaccurate quotation in his affidavit. The point that was being made (and which the primary judge accepted in the last sentence of [15]) was that Mr Wu misdescribed the conversation so as to portray Mr Colon as demanding that he sign the contract amendment, when in fact Mr Colon was emphasising that participating in the on-call arrangements was not optional. The submission referred to the transcript of the cross-examination and did not purport to quote the transcript of the actual conversation. However, the quotations from the conversation set out in the submission were accurate (see [105] above). The allegation of fabrication is therefore baseless and does Mr Wu no credit. 110 The reasons at [15] inaccurately summarise the respondents' submission and reverse the order of the relevant statements in the transcript of the conversation. This is regrettable but amounts to no more than a drafting slip. The point being made in the paragraph - that Mr Wu had misdescribed the conversation to give a misleading impression of what the respondents were demanding of him - was correct.
Paragraph (e) 111 Paragraph (e) alleges that the primary judge did not take proper account of "business documentation" with which the respondents' oral evidence was inconsistent. The relevant documentation was not specified and the allegation was not meaningfully addressed in Mr Wu's written submissions. 112 In his oral submissions Mr Wu articulated the point as follows. So the general ground of that - so the base of that appeal ground is - as we explored, because of the clause 24 and the 25 of the award, and because the trial judge had already found that the - out of on-call rostering required the consultation, and for that grievance, the first respondent had to send me anything concerning the changes in writing. So on that basis, because of that workplace law, when the trial judge made his evidence - made the fact of findings, he can only refer to the document, which DSMJ sent to me. When I say document, that means the contract to amend on-call policy and the on-call escalation document which DSMJ sent to me or shared to me. 113 This argument is ingenious but misconceived. The provisions of the Award place obligations on employers to consult, including the provision of information about proposed changes in writing. They do not purport to limit the evidence to which a court can have regard in making findings about the consultation process, or what the employer's intentions and requirements were at various times. 114 To the extent that the present case turns on the reasonableness of the additional duties Mr Wu was directed to undertake, the scope of those duties is to be understood by reference to the terms of the direction, which was given (and reiterated) orally, albeit by reference to documents. Where Mr Wu was told by his superiors that (for example) he was not required to stay awake all night and monitor message services, he could very likely have relied on that in opposition to any later claim that he had failed to perform his duties by going to sleep. What he could not do was rely on a particular reading of the documents in order to contend that he was being directed to do something which his superiors told him was not part of the arrangement, and on that basis characterise the direction as unlawful.
Paragraph (f) 115 Paragraph (f) has two limbs. (a) It is contended that it was wrong for the primary judge to regard Mr Wu's credibility as damaged by his use of "words to the effect", when Ms Farrell and Mr Lim had used the same form of words in their affidavits. (b) The primary judge did not consider the reasons why Mr Wu had covertly recorded some of the conversations. 116 As to the first point, the concern expressed by the primary judge at [14] was that Mr Wu had expressed his affidavit evidence in terms of "words to the effect" while concealing the fact that he was in possession of verbatim records of several of the relevant conversations. This was brought into particular focus by the fact that, in that affidavit, Mr Wu had misquoted Mr Colon in a way that produced a significantly misleading account. There was no error in taking this into account as something going to Mr Wu's credibility. 117 No such issue arose in respect of the affidavits of Ms Farrell and Mr Lim, which had been deposed before Mr Wu's recordings of the conversations came to light and gave their best recollections of those conversations. The primary judge summarised these parts of their affidavits in an anodyne way at [27] - [28] and [40]. Nothing ultimately turned on any divergence between their recollections, as set out in their affidavits, and the recordings. Indeed, these paragraphs of the affidavits of Ms Farrell and Mr Lim were not read (evidently because the applicants accepted the recordings and the transcripts of them as accurate) and should not have been included in his Honour's summary of their evidence. 118 It is apparent that Ms Farrell and Mr Lim had assistance from DSMJ's solicitors in preparing their affidavits. In recounting conversations in direct speech, preceded by the formula "words to the effect", they were following a practice that has been commonly followed in New South Wales for some decades. Different views have been expressed about the merits of this practice, and a majority in the NSW Court of Appeal has confirmed its appropriateness (Wild v Meduri [2024] NSWCA 230 at [244] - [254] (Bell CJ), [343] - [356] (Kirk JA); cf the contrary view expressed by Jackman J in Punchbowl Casual Dining Pty Ltd v Rashays Cafes & Restaurants Pty Ltd (Trial Judgment) [2024] FCA 1265 at [27] - [28]). In my view, an affidavit prepared in accordance with this common practice should normally be taken not to be claiming to recall the exact words used; and use of "words to the effect" or some equivalent formula would therefore have no bearing one way or another on their credibility. Here, the relevant passages of the affidavits were not read; and the extent (if any) to which the manner in which conversations had been described in those passages might affect the credibility of the witnesses was not explored in cross-examination or submissions. The contrast with the position of Mr Wu (who had recounted a conversation inaccurately, using the formula "words to the effect", while in possession of an audio recording) is clear. 119 As to the second point, while the ground of appeal asserts that Mr Wu chose to make recordings of conversations because on an earlier occasion he had been made redundant without notice, I was not directed to any evidence of this. Nor was the point developed in submissions. There was, however, discussion in the submissions of two additional points. 120 One of these points was whether the making of recordings by Mr Wu contravened s 7 of the Surveillance Devices Act 2004 (NSW). Mr Wu argues that the recordings were authorised by s 7(3)(b) of that Act on the footing that he was a party to the conversations and the recording was "reasonably necessary" to protect his lawful interests. This seems to me to be highly questionable. However, this was not a live issue in the FCFCOA and it is preferable not to state a firm conclusion on the point. What caused the primary judge concern was that Mr Wu had made recordings covertly (when he could, for example, have announced that he was making recordings and allowed other participants to decide whether to continue the conversations) and, more particularly, that he had not made the existence of the recordings known until the respondents had filed their affidavit evidence (and had in the meantime given a distorted account of one of the conversations in his own evidence). 121 The further point was an argument by Mr Wu that s 102 of the Evidence Act 1995 (Cth) (which provides as a general rule that "credibility evidence" is inadmissible) prevented the primary judge from reaching a conclusion adverse to Mr Wu's credit on the basis of these matters. This argument was not raised by the ground of appeal and clearly had no merit.
Ground 3(a), (g), (h) and (i) 122 Ground 3, as noted above, criticises the primary judge for failure to have regard to what are said to be key documents. Paragraphs (b) to (f) have been canvassed above. 123 The documents which are the subject of paragraphs (a) and (g) to (i) are as follows. (a) the heart specialist referral (referred to at [18] above); (b) the payslip dated 15 December 2021 (referred to at [71] above); (c) Mr Wu's claim filed in the FCFCOA on 12 December 2022; and (d) Mr Wu's opening submissions filed in the FCFCOA on 8 August 2023. 124 Ground 3 asserts that, had the primary judge applied his mind to these documents, he would have found that the disputes between Mr Wu and the respondents were "rooted in the respondents' attempts of varying my Contract unilaterally without my consent". 125 My recounting of the facts at [18] and [71] above is sufficient to explain why the first and second of these documents do not support the conclusion for which Mr Wu contends. 126 The third and fourth documents referred to were filed in the proceedings below and framed the dispute between Mr Wu and the respondents. It is plain that the primary judge had regard to them, at least to the extent that the allegations in them were pressed before his Honour. A generalised assertion that the primary judge did not consider Mr Wu's arguments properly is insufficient to constitute a viable ground of appeal.
Grounds 6 to 11, 17 and 18: ss 340 and 343 of the FW Act 127 Section 340 of the FW Act provides as follows. (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. 128 Dismissal of an employee by an employer is a form of "adverse action" as defined by s 342. 129 Section 343(1) of the FW Act provides as follows. (1) A person must not organise or take, or threaten to organise or take, any action against another person with intent to coerce the other person, or a third person, to: (a) exercise or not exercise, or propose to exercise or not exercise, a workplace right; or (b) exercise, or propose to exercise, a workplace right in a particular way. 130 Both of these provisions turn on the existence of a "workplace right". Section 341(1) defines a "workplace right" as follows. (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. 131 "Workplace instrument" and "workplace law" are defined by s 12, as follows. workplace instrument means an instrument that: (a) is made under, or recognised by, a workplace law; and (b) concerns the relationships between: (i) employers and employees; or (ii) digital labour platform operators and employee‑like workers; or (iii) road transport businesses and regulated road transport contractors; or (iv) persons in a road transport contractual chain. workplace law means: (a) this Act; or (b) the Registered Organisations Act; or (c) the Independent Contractors Act 2006; or (d) any other law of the Commonwealth, a State or a Territory that regulates the relationships between employers and employees (including by dealing with occupational health and safety matters). 132 In the court below Mr Wu claimed that he had, and exercised, the following workplace rights: (a) to make complaints and/or inquiries in relation to his employment; (b) not to be compelled or coerced to enter into a new agreement; (c) not to undertake unreasonable additional hours of work; (d) to decline to enter a new agreement because he had reasonable concern that it would expose him to a health risk; and (e) to propose to ask an arbiter to solve workplace disputes. 133 As summarised by the primary judge (at [60]), his case was that he exercised workplace rights by: (a) objecting to DSMJ unilaterally varying his employment contract; (b) making a complaint or inquiry concerning the on-call arrangements; (c) refusing to undertake unreasonable additional hours of work; (d) declining to enter a new agreement; and (e) proposing to involve an arbiter to resolve a workplace dispute. 134 The primary judge's reasoning, set out at [61] - [65] is somewhat condensed. I understand his Honour to have accepted submissions made by the respondents that the only right identified in Mr Wu's application that was capable of being a "workplace right" as defined in s 341 was the right to make complaints or inquiries (at [62]) and that Mr Wu's refusal to undertake on-call duties was not a complaint or inquiry in this regard. His Honour also made a separate finding that Mr Wu did not request the use of an arbiter (but merely suggested that as a possibility during the meeting on 14 December 2021). 135 This reasoning is understandable in the light of the way a "workplace right" is defined in s 341 of the FW Act. Aside from the ability to make a complaint or inquiry concerning one's work (s 341(1)(c)), workplace rights are defined as entitlements under specific legislative regimes. Mr Wu had not identified the statutory sources of the rights upon which he was relying as "workplace rights". Although it has been observed in the Circuit Court that an applicant is not required to "precisely and explicitly identify a source of entitlement in a workplace law or instrument" (Lees v Intrepid Travel Pty Ltd [2023] FedCFamC2G 766 at [93]), it remains the case that Mr Wu bore the burden of establishing that he had, and exercised, rights which were "workplace rights" as defined. It was necessary for him to show that the rights upon which he relied had a basis in a workplace instrument or a workplace law. Cases where this can be done without identifying the relevant instrument or law will be rare. 136 Grounds 6 and 7 complain, in substance, that the primary judge wrongly excluded s 84 of the WHS Act from consideration in the reasoning described above. Section 84 provides: A worker may cease, or refuse to carry out, work if the worker has a reasonable concern that to carry out the work would expose the worker to a serious risk to the worker's health or safety, emanating from an immediate or imminent exposure to a hazard. 137 The primary judge's summary of the asserted workplace rights omitted the reference (which appeared in the asserted rights as Mr Wu defined them) to a reasonable concern about exposure to a health risk as the basis for refusing to enter into a new agreement. However, his Honour made a finding elsewhere (at [18]) that Mr Wu's claim was not sustained by any medical evidence of a threat to his health. 138 This finding was correct. No medical reports were tendered, so that the evidence as to what conditions Mr Wu might have been suffering went no higher than that his GP had written a referral for him. It is also correct (as Mr Wu submitted) that s 84 is engaged by a "reasonable concern" on the part of a worker. Such a concern could in principle be established by evidence other than a formal diagnosis. However, the relevant concern must be as to a "serious risk" emanating from an "immediate or imminent exposure to a hazard". Mr Wu's evidence as to his symptoms and concerns was not sufficiently detailed or cogent to meet this standard; it did not go beyond a general concern on his part that he had a heart problem which might be exacerbated by additional work or stress. 139 In these circumstances, it was not necessary for the primary judge to address s 84 of the WHS Act as a potential basis for Mr Wu declining to enter into a new agreement and thus a relevant workplace right as defined in s 341. 140 Ground 8 makes a related complaint that the primary judge did not make a finding as to what workplace rights Mr Wu exercised. I reject this ground. The primary judge's reasoning referred to at [76] - [77] and [79] above amounts to findings that Mr Wu did not exercise any rights that came within the concept of a "workplace right" in s 341 of the FW Act. 141 In connection with these findings, ground 1 of the notice of contention contends that Mr Wu's refusal to undertake work pursuant to the on-call arrangements did not constitute the exercise of a workplace right within the meaning of s 341 of the FW Act. In my view the correct reading of the primary judge's reasons is that this finding was made, and ground 1 is not necessary. However, if that finding was not made, it should have been made. In addition to the points noted above, I observe that Mr Wu did not undertake the task of establishing that the direction to participate in the on-call arrangements was inconsistent with his contractual rights; and (for reasons explained below) his contention that the direction was inconsistent with s 62 of the Act fails. The direction to participate in the on-call arrangements should thus be taken to have been lawful. Non-compliance with a lawful direction is not a "workplace right" the exercise of which is protected from being the occasion for adverse action. 142 Grounds 9 to 11 make a series of complaints concerning the conclusions of the primary judge at [74], where his Honour said: The Court is satisfied that the applicant's contract of employment allowed a variation to his hours of work such as to encompass his participation in an out of hours roster. The Court is satisfied that the roster, as envisioned, did not require the applicant to stay awake, rather he could sleep and the [sic] respond to a call if needed. The Court is satisfied that participation in the roster did not require the applicant to work unreasonable hours, rather he was simply required to be on-call. Again, the Court is satisfied the termination of the applicant was for the reason stated by Ms Farrell, being a failure to a lawful instruction [sic]. 143 Ground 11 asserts that, had the primary judge not made the alleged errors, he would have found contraventions of ss 340 and 343 of the FW Act. However, in the light of the earlier reasoning described above, this is not correct. By that reasoning, his Honour had concluded that the rights that Mr Wu claimed to have exercised - and the exercise of which was said to be the reason for adverse actions and coercion - either had not been exercised by him or did not constitute "workplace rights" as defined. 144 Paragraph [74] was part of the primary judge's reasoning as to why, if the matters relied on by Mr Wu did constitute the exercise of workplace rights, the termination of his employment did not occur because of that exercise of rights. His Honour was evidently satisfied on the evidence that the termination was not motivated by those matters but was a consequence of Mr Wu having refused to follow a lawful instruction or direction. Strictly, these are not true alternatives because cases can arise where a lawful ground for termination is used to justify an action that is wholly or partly motivated by the employee having exercised a workplace right. However, it is clear that the primary judge did not consider this to have occurred in the present case. The reasonableness (and the lawfulness) of the instruction given to Mr Wu was supportive of the respondents' case that it was the refusal to carry out the instruction, rather than the exercise of any workplace right, that provided the impetus for the decision to terminate his employment. The observations that his Honour made in that connection at [74] were consistent with the evidence outlined above and do not suggest any error. 145 Paragraph [76], which is also (somewhat obliquely) attacked in this series of grounds, was part of the primary judge's reasoning on Mr Wu's claim that he was coerced into entering into an amendment to his employment contract. Relevantly to this set of issues, his Honour in substance accepted the respondents' submission that DSMJ did not need to persuade Mr Wu to agree to amend his employment contract, because it could direct him to participate in the on-call arrangements under his existing contract, and that is what it was doing. As explained above, this submission was correct. In so far as grounds 9 to 11 attack the reasoning at [76], they are also rejected. 146 Ground 2 of the notice of contention relates to these issues. It contends for a finding that is implicit in the primary judge's reasons but not explicitly stated: that there was no action taken against Mr Wu with the intent to coerce him to exercise or not exercise a workplace right. That finding is correct for at least two reasons. First, as noted above at [134] - [135], the primary judge was correct to proceed on the basis that none of the rights claimed by Mr Wu were "workplace rights" in the relevant sense (other than the right to make an inquiry or complaint, which he did not exercise). Secondly, as explained in the overview above, upon examination, none of the conduct of the respondents was calculated to coerce Mr Wu to do anything other than comply with what the respondents understood to be a lawful direction. 147 Ground 18 appears to be related to these arguments. It is as follows. The Judge failed to apply his mind in making a finding that the disputes between the parties originated from the respondents' attempting of varying my employment contract unilaterally, and that I declined to the proposed contract variation; further, he failed to take into consideration that my employment contract could not be varied without my consent in writing; in addition, he erred in not making a finding that the On-Call Offer was proposed by way of amending my employment contract; moreover he failed to find that one of the reasons my employment was dismissed was because my refusal to employment contract variation. The Judge should have found as Judge Rangiah, Charlesworth and Snaden JJ delivered in the proceeding PIA Mortgage Services Pty Ltd v King [2000] FCAFC 15 [the correct citation for this case is [2020] FCAFC 15; 274 FCR 225]. 148 The primary judge clearly did not make "a finding that the disputes between the parties originated from the respondents' attempting of varying [Mr Wu's] employment contract unilaterally" and I understand the complaint here to be the failure to make such a finding. It is suggested further that the primary judge should have found that Mr Wu's refusal to accept the contract variation was one of the reasons for the termination of Mr Wu's employment. 149 Declining to agree to a new contract and objecting to being coerced into agreeing to an amendment were two of the workplace rights which, Mr Wu alleged, he had exercised. They are among the rights which the primary judge apparently considered not to be "workplace rights" in the relevant sense because they did not come within the definition in s 341. In addition, for reasons outlined above, I do not accept that the respondents were ever attempting to amend Mr Wu's contract unilaterally, or that at the relevant time (that is, when consideration was being given to how to respond to his refusal to work on call) the respondents were motivated in any material way by the fact that he had declined to sign the contract amendment. As explained above, by that stage at least, the respondents were working on the understanding that Mr Wu's existing contract allowed him to be directed to participate in the on-call arrangements and the contract amendment was not needed for that purpose. Mr Wu's refusal to accept the contract amendment was therefore not a motivating factor. Ground 18 does not point to any error by the primary judge. 150 Ground 17 concerns the findings of the primary judge in relation to s 62(3) of the FW Act. Section 62(1) provides that an employer must not request or require a full time employee to work more than 38 hours in a week "unless the additional hours are reasonable". Section 62(2) provides that an employee may refuse to work additional hours (beyond those referred to in s 62(1)) if they are "unreasonable". Section 62(3) then provides: (3) In determining whether additional hours are reasonable or unreasonable for the purposes of subsections (1) and (2), the following must be taken into account: (a) any risk to employee health and safety from working the additional hours; (b) the employee's personal circumstances, including family responsibilities; (c) the needs of the workplace or enterprise in which the employee is employed; (d) whether the employee is entitled to receive overtime payments, penalty rates or other compensation for, or a level of remuneration that reflects an expectation of, working additional hours; (e) any notice given by the employer of any request or requirement to work the additional hours; (f) any notice given by the employee of his or her intention to refuse to work the additional hours; (g) the usual patterns of work in the industry, or the part of an industry, in which the employee works; (h) the nature of the employee's role, and the employee's level of responsibility; (i) whether the additional hours are in accordance with averaging terms included under section 63 in a modern award or enterprise agreement that applies to the employee, or with an averaging arrangement agreed to by the employer and employee under section 64; (j) any other relevant matter. 151 The primary judge summarised the evidence relating to s 62 (and the intertwined issues concerning s 84 of the WHS Act) at [100] - [112] and set out his conclusions at [114] - [118]. These were as follows. (a) Generally, the evidence of Dr Tronson was preferred to that of Mr Wu (as noted earlier). (b) There was "some evidence" that Mr Wu suffered from a heart condition but this did not go so far as to indicate a risk to Mr Wu from participating in the on-call roster. Nothing in his personal circumstances suggested that he was unable to participate. (c) The roster was a necessary and integral part of the service being offered by DSMJ to its customers. (d) Mr Wu would only have been required to perform work after a first-line service desk was unable to resolve a problem. (e) There was evidence showing that, once the policy was implemented, callouts were rare and usually of short duration. (f) The policy made provision for a late start to the working day where a staff member had had to perform significant work overnight. (g) The retainer of $750 per week in return for being on call (with further remuneration if actual work was performed) was "more than sufficient to compensate an employee for the inconvenience of being on-call". (h) Callouts were to be made by telephone. Mr Wu's assertion that he was going to have to stay awake and constantly monitor emails or other messages was rejected. There would nevertheless be some inconvenience involved. (i) On-call rosters are commonplace in service industries such as the IT industry. (j) Significant notice was given about the introduction of the roster and there was consultation as to the policy that would underpin it. (k) Overall, his Honour was satisfied that the on-call roster was reasonable in all the circumstances and no breach of s 62 had been made out. 152 Mr Wu makes six complaints about this reasoning (as well as a claim, which must be rejected for reasons explained earlier, that the on-call roster was introduced by amending his employment contract). (a) It is submitted that the reasonableness of the arrangement should have been considered on the basis that no remuneration was offered. This is apparently put as a matter of principle, as well as on the basis that Mr Wu was not entitled to receive any remuneration unless he agreed to the contract amendment. These submissions must be rejected. The availability of remuneration is a mandatory factor under s 62(3)(d) and therefore could not be excluded. Meanwhile, there are contradictory statements in the evidence concerning whether DSMJ intended to insist on Mr Wu signing the contract amendment before making the additional remuneration available to him (see [29] above). In any event, if Mr Wu needed to sign the contract variation in order to be paid, it has not been submitted (let alone demonstrated) that anything in the contract amendment was burdensome to Mr Wu or detrimental to his rights. Such a submission could not succeed, at least if (as I think is the correct view) DSMJ was entitled to direct Mr Wu to participate in the on-call arrangements in any event. His resistance to the amendment appears to have been based on his desire not to be on call and his belief that the arrangement could not be forced on him if he did not sign. (b) Mr Wu's second argument is also premised (at least in part) on the understanding that Mr Wu would receive no remuneration without signing the contract amendment. It is, in substance, that the arrangement was not reasonable because it was not contemplated in his employment contract and had not been in contemplation at any time since he began working for Grow. As to the first aspect of this, cl 6.1 of the contract expressly contemplated additional hours to the extent needed for Mr Wu's duties to be performed. As to the second aspect, change is not of itself unreasonable. Section 62(3)(c) expressly calls for attention to the "needs" of the workplace, which obviously may change over time. (c) Mr Wu's third argument repeats the allegation that the primary judge did not properly consider his health condition. This is dealt with above. (d) Mr Wu's fourth argument is that the primary judge should have relied solely on the documentary evidence (the contract and the documents describing the policy) and not what is described as "oral evidence" inconsistent with these "business documents". I reject this submission. While it might in some cases be inappropriate to give significant weight to ex post facto descriptions of how a workplace policy was intended to work, there is no error in taking account of how the policy was described in contemporaneous meetings and other discussions where senior staff were explaining the policy to employees. (e) Mr Wu's fifth argument is that the primary judge failed to have regard to the escalation document (referred to at [26] above), which was said to prove (contrary to the "untrue" evidence of Dr Tronson) that "no one would call me when incidents occurred". For reasons outlined above, the escalation document does not prove this point. (f) Mr Wu's sixth argument is that the primary judge failed to find that the on-call arrangements required him to work up to an average of 48 hours per week over a three month period. This is apparently a reference to cl 8.1 of the policy as circulated on 26 November 2021, which is set out at [16] above. It needs to be borne in mind that the upper limit of 48 hours work a week was part of a composite requirement imposed on managers, the overall effect of which was a duty to ensure that nobody was required to do additional work that could be detrimental to their health and wellbeing. Other elements of the requirement imposed on managers included ensuring that each worker had 10 hours of uninterrupted rest before being expected to resume work. In the circumstances (which included that DSMJ was undertaking to pay enhanced hourly rates for work undertaken while on call, and therefore had an incentive not to allow extended hours of such work to become common), it was unlikely that any employee's weekly hours would approach 48 per week over a significant period as a consequence of the policy. The arrangement in which Mr Wu refused to participate would have seen him initially rostered on call for one week in four; and there was evidence from Dr Tronson that Mr Wu would likely have been rostered on call once every five or six weeks. In these circumstances I am not persuaded that the primary judge erred in finding that the additional hours were not intended to be numerous (at [104]). I would add that no basis has been shown to have existed, as at the time Mr Wu refused to participate, for expecting the additional hours of work required to be numerous. (g) In rejecting this last argument, the primary judge (at [105]-[106]) also gave some weight to evidence of actual experience with the on-call roster between December 2021 and March 2022. This reasoning is problematic, as it is the reasonableness of the request made to Mr Wu and his refusal of that request (both of which occurred in early to mid-December 2021) that must be assessed for the purposes of s 62. At the point where the process of terminating Mr Wu's employment began, he was not being asked to work a particular period of time on a particular day; he was being asked to agree, in advance, to do additional work at unpredictable times and for unknown durations for an indefinite period into the future. It is the reasonableness of the policy framework that would govern that work that is therefore critical. However, it does not follow that his Honour's conclusion was erroneous. For the reasons outlined above, it has not been established that the circumstances known to the parties in December 2021 pointed to a likelihood of Mr Wu being required to work additional hours that were unreasonable when the policy was implemented.
Disposition 153 Leave to appeal will be granted, and the appeal dismissed. 154 Ordinarily costs are not ordered in proceedings of the present kind (s 570 of the FW Act). My orders will make provision for any party that wishes to seek an order for costs to file evidence and written submissions on that issue within 14 days and for other parties to respond within a further 14 days. The question of costs will then be dealt with on the papers. I certify that the preceding one hundred and fifty-four (154) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Kennett.
Associate: Dated: 6 December 2024 SCHEDULE OF PARTIES NSD 1449 of 2023 Respondents Fourth Respondent LIONG LIM Fifth Respondent ROHAN TRONSON
Wu
DSMJ Pty Ltd