DECISION

Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal (consent arbitration)

Mr Glenn Baughen
v
Bawinanga Aboriginal Corporation
(C2020/6851)

Application to deal with a general protections dismissal by arbitration.

INTRODUCTION

[1] Mr Glenn Baughen (the Applicant) applied under s. 365 of the Fair Work Act 2009 (the Act) for the Fair Work Commission (the Commission) to deal with a dismissal dispute. The Applicant was employed on a contract by Bawinanga Aboriginal Corporation (the Respondent) as a Plumber/Gasfitter on a full-time basis. The Applicant was employed as a plumber on a contract with the Respondent. There was a dispute between the parties as to whether the contract was for a one or two year period. The Applicant alleged that adverse action was taken against him, (after he made various workplace inquiries) and his employment was dismissed in contravention of the general protections provisions in Part 3 – 1 of the Act. The Respondent refuted this and submitted that the Applicant’s employment ended when the one year contract finished.

[2] The Respondent is a not-for-profit Aboriginal Corporation based in Maningrida, a remote Aboriginal community located in Arnhem Land approximately 500 kilometres east of Darwin.

[3] The initial application was filed outside of the 21 days allowable for filing an application under s.365 of the Act. An extension of time for filing was granted. The Applicant subsequently filed a Form F8B application requesting the matter be dealt with by consent arbitration. The parties sought a number of conciliation conferences. The matter could not be resolved. The Respondent consented to the arbitration, and the matter was allocated to the Commission as currently constituted. A range of directions were set for the filing of material for the arbitration of the matter.

[4] The Applicant was represented by Mr Lucio Matarazzo, of Lucia Matarazzo Pty Ltd. The Respondent was represented by Ms Megan Arrowsmith, Lawyer for Clayton Utz, instructed by Ms Ingrid Stonhill, CEO of the Respondent. Both representatives were granted permission to appear, pursuant to s.596(2) of the Act. The matter was heard in Darwin and directions for final submissions were set after this, for the hearing of final submissions, being undertaken via video link between Brisbane, Darwin and Sydney.

[5] In summary terms the Applicant alleged that the Respondent took adverse action against him as follows:

•  The Respondent took adverse action against the Applicant by denying the Applicant a pay rise in June 2019; and terminating the Applicant's employment on 25 October 2019 or, in the alternative, not renewing the Applicant's employment contract;

•  Regarding the denied pay rise, the Respondent took that adverse action because the Applicant exercised a workplace right to raise a concern on 24 May 2019 regarding pay rates on public holidays;

•  In dismissing the Applicant’s employment, the Respondent took adverse action because the Applicant exercised a workplace right to raise a concern in October 2019 regarding payment of an infringement notice; and

•  Other matters were also raised as contraventions, of workplace rights.

[6] The Applicant sought compensation for loss of salary, cost of relocation, payment reimbursement for the fine for driving an unregistered vehicle, loss of accommodation benefit and underpayment of public holidays. The Applicant also wrote in his Form F8 that he was seeking payment of legal costs.

[7] Directions were issued to the parties to file and serve submissions, documents and any witness evidence on which they intended to rely. The Applicant then filed material in the matter, which was effectively the documentation filed in relation to his extension of time, including his originating application and some supporting material. The Applicant also filed a copy of the decision granting an extension of time for filing. The Applicant also later filed further material in response to redirection. The Respondent filed a written outline of argument and three witness statements.

[8] The evidence on behalf of the Applicant, in respect of the consent arbitration was in the form of a witness statements from the Applicant, and his partner, Ms Rose Cooper. Evidence for the Respondent was provided by Ms Rachel Dobbie, Human Resources Manager for the Respondent; Ms Kylie Gregson, Workshop Manager, Spare Parts & Fleet Coordinator for the Respondent, and Ms Ingrid Stonhill, Chief Executive Officer of the Respondent.

PRELIMINARY MATTERS

Consent arbitration

[9] Section 369 of the Act empowers the Commission to deal with general protections dismissal disputes (such as the present matter), by consent arbitration. Subsection 369(1) sets out the requirements which must be met before the Commission may deal with such a dispute by arbitration:

(i) the Commission issues a certificate under s.368(3)(a) in relation to the dispute (s.369(1)(a));

(ii) the parties notify the Commission that they agree to the Commission arbitrating the dispute (s.369(1)(b));

(iii) the notification is given within 14 days of the certificate being issued, or within such period as the Commission allows or an application made during or after those 14 days (s.369(1)(c)(i)); and

(iv) the notification complies with any requirements prescribed by the procedural rules (s.369(1)(c)(ii)).

[10] There was no dispute between the parties, that the requirements referred to above have been met. The parties notified the Commission that they had agreed to the Commission arbitrating their general protections dismissal dispute by filing a completed Form F8B.

Permission for legal representation

[11] The Respondent sought permission to be represented by a lawyer. The Applicant did not explicitly oppose representation, but correspondence to my Chambers on 5 October 2020 queried whether the Respondent would continue to be legally represented as the Applicant was representing himself. The Applicant however later sought legal representation.

[12] The Respondent sought to be represented on grounds that it would enable the Commission to deal with the matter more efficiently in accordance with s.596(2)(a), and further that it would be unfair not to allow the Respondent to be represented because the Respondent is unable to represent itself, and it would be unfair not to allow the Respondent to be represented taking into account fairness between the Applicant and the Respondent.

[13] Regarding s.596(2)(a), the Respondent submitted that the factual dispute between the parties centred on the duration of the Applicant's employment contract and the reason for the cessation of the Applicant's employment with the Respondent. The Respondent said that while the Applicant had not filed any supporting witness statements in this matter, it was likely that any determinative hearing would involve examination, cross-examination and re-examination of at least four witnesses and submissions on the evidence, the provisions of the Fair Work Act and relevant authorities. The Respondent said its witness statements also contained numerous attachments and relevant documentation regarding the Applicant's employment with the Respondent.

[14] The Respondent cited Richards SDP in Smith v James Cook University [2016] FWC, submitting that “[f]amiliarity with the subject matter, the conceptualisation and organisation of argument in the statutory context and marshalling of relevant materials may be matters that assist in the efficient conduct of the hearing of a matter.”

[15] The Respondent argued that the incomplete nature of the Applicant’s material made it likely that the Applicant would be seeking to give substantive viva-voce evidence, which would need to be considered, both for relevance and subject to testing through cross-examination, and accordingly the matter would be dealt with more efficiently by the Respondent if it was legally represented because:

(a) Ms Arrowsmith is an experienced advocate and will be able to efficiently conduct examination in chief, cross-examination and re-examination;

(b) Legal representation would assist the Commission in identifying the key relevant issues in dispute, noting that the Applicant's materials to-date appear to be incomplete; and

(c) Ms Arrowsmith would make submissions on critical issues for determination by the Commission, including reference to relevant authorities as appropriate.

[16] The Respondent further submitted regarding s.596(2)(b) and (c) that the Applicant had previously been represented, and the fact that the Applicant had not elected to be represented by a lawyer or a paid agent at any determinative hearing was not, in itself, evidence of unfairness. 1

[17] The Respondent argued that the Commission had previously allowed a respondent to be legally represented in circumstances where the applicant has been unrepresented. The Respondent referred to You v Commonwealth Scientific and Industrial Research Organisation T/A CSIRO [2020] FWC 2679 at [44], in which Kovacic DP found:

“Matters before the Commission frequently involve one party being legally represented

while another party is self-represented, meaning that the Commission is experienced in ensuring as far as is reasonable that the self-represented party is not disadvantaged and has every opportunity to put forward their case.”

[18] The Respondent submitted that Ms Rachel Dobbie, the Respondent’s Human Resources Manager at the time the application was filed, had recently ceased employment with the Respondent, and it was not known whether any new Human Resources Manager engaged by the Respondent prior to the listing of any determinative hearing or conference would have the skills or experience to adequately represent the Respondent before the Commission, and at the very least, that person would not be familiar with the background to this matter.

[19] I decided to grant permission for the Respondent to be represented by a lawyer on the basis that I was satisfied that it would be unfair not to allow the Respondent to be legally represented, given the contested matters. The Respondent is not a large business and with the departure of Ms Dobbie is without human resources expertise. The Applicant was represented previously and relied on material prepared by his lawyers at the time.

[20] In granting permission to be represented pursuant to s.596(2) for the Respondent to be represented by a lawyer, I also had regard to the complexity of the matter and concluded that to allow the Respondent to be legally represented would enable the matter to be conducted more efficiently.

[21] The Applicant, prior to the hearing sought representation and permission to appear, and was also granted permission to appear on similar terms. The Applicant’s representative also prepared and filed further materials for the hearing.

GENERAL PROTECTIONS

[22] Part 3 – 1 of the Act prohibits, amongst other things, an employer from taking adverse action against an employee because that employee exercises a workplace right or because of proscribed matters including pregnancy and physical disability. Workplace rights are dealt with in s.340 of the Act which provides:

“(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 proposes to exercise a workplace right;

(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.

Note:          This subsection is a civil remedy provision (see Part 4-1).

(2) A person must not take adverse action against another person (the second person ) because a third person has exercised, or proposes or has at any time proposed to exercise, a workplace right for the second person's benefit, or for the benefit of a class of persons to which the second person belongs.

Note:          This subsection is a civil remedy provision (see Part 4-1).

[23] The meaning of “workplace right” is found in s. 341, which provides that a person has a workplace right if the person is entitled to the benefit of, or has a role or responsibility under, a workplace law, workplace instrument or an order made by an industrial body…”. In Keep v Performance Automobiles Pty Ltd 2 (Keep), a Full Bench of the Commission said in relation to s. 340:

“An employer contravenes s.340 if it can be said that the exercise by the employee of a workplace right was a ‘substantial and operative factor’ in the employer’s reasons for taking the action which constitutes ‘adverse action’ within the meaning of s.342. 3

…

The task of the FWC in a consent arbitration proceeding such as this is to determine three factual questions:

(i) Was the employee exercising a workplace right, within the meaning of s.341?

(ii) Did the employer take ‘adverse action’ against the employee, within the meaning of s.342?

(iii) Did the employer take the adverse action against the employee because of a prohibited reason, or reasons which included that reason?

In the context of this case the applicant bears the onus of establishing that he had exercised a workplace right at the relevant time and that adverse action was taken against him. If so established, the respondent then bears the onus of establishing that the adverse action was not taken because Mr Keep had exercised a workplace right.” 4

[24] A person exercises a workplace right where they make a complaint or inquiry in relation to their employment. The Fair Work Act does not restrict the person or body to whom such a complaint or inquiry could be directed. It can include situations where an employee makes an inquiry or complaint to his or her employer. 5 Although the words ‘is able to’ are taken to have a broad meaning, in order for the complaint or inquiry to be considered a workplace right, it is necessary that the complaint or inquiry concerns and is confined to the person’s employment.6

[25] In Shea v TRUenergy Services Pty Ltd (No 6) 7 the Federal Court noted that the Fair Work Act does not provide a definition of ‘complaint’. Dodds-Streeton J held that a complaint could be treated as having been made if the ‘relevant communication, whatever its precise form, would be reasonably understood in context as an expression of grievance or a finding of fault which seeks, whether expressly or implicitly, that the employer or other relevant party at least take notice of and consider the complaint’.8

[26] Sections 360 and 361 of the Act are important provisions in the legislative scheme concerning general protections. In Keep, a Full Bench of the Commission made the following observations in relation to those provisions:

“Sections 360 and 361, in Div 7 of Pt 3-1 of the FW Act, make it easier than it otherwise would be for an employee to establish a contravention of the protective provisions in Pt 3-1, including s.340. Section 360 provides that, for the purposes of Pt 3-1, ‘a person takes action for a particular reason if the reasons for the action include that reason’. Section 361(1), casts an onus of proof on an employer to show that it did not take action for a prohibited reason, it says:

“If:

(a) in an application in relation to a contravention of this Part, it is alleged that a person took ... action for a particular reason ...; and

(b) taking that action for that reason ... would constitute a contravention of this Part;

it is presumed, in proceedings arising from the application, that the action was ... taken for that reason or with that intent, unless the person proves otherwise.”

It is important to note that s.361 does not obviate the need for an applicant to prove the existence of the objective facts which are said to provide the basis of the respondent’s conduct. The onus does not shift from the applicant to the respondent until the applicant establishes the elements of each of the general protections upon which it seeks to rely. It is not enough for the applicant to merely make assertions regarding these elements, they must be determined objectively.” 9

[27] In Construction, Forestry, Mining and Energy Union v De Martin & Gasparini Pty Limited 10 Wigney J distilled the following principles in relation to s. 361 of the Act from the High Court Decisions in Board of Bendigo Regional Institute of TAFE v Barclay11 and Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd12

“As has already been noted, s 361 creates a statutory presumption that operates in cases where it is alleged that a person contravened s 340. Relevantly, where it is alleged that a person has taken adverse action against another person because that other person has a workplace right, or has exercised a workplace right, it is presumed that the action was taken for that reason, unless the person proves otherwise. Here, the CFMEU alleged that De Martin & Gasparini took adverse action against its employees for reasons that included that the employees had or had exercised workplace rights. Those workplace rights were the benefit of the Enterprise Agreement (a workplace instrument), and the ability to approve or not approve a variation of the Enterprise Agreement (a process under the Fair Work Act). By reason of s 361, it is to be presumed that De Martin & Gasparini took the adverse action for those reasons unless it proves otherwise.

One might be forgiven for thinking, at least at first blush, that the question whether a person took certain action for a particular prohibited reason is a fairly straightforward question. It is, however, a question which, in the context of s 340 and cognate provisions (for example s 346 of the Fair Work Act), has excited some considerable debate and controversy. Following the decisions of the High Court in Barclay and BHP Coal, however, it could now be said that the relevant principles are relatively well-settled. The key principles, in simple terms, are as follows.

First, the question is one of fact: Barclay at [41], [45], [101]; BHP at [7].

Second, the question is why the adverse action was taken: Barclay at [5], [44]. The focus of the inquiry is the reason or reasons of the relevant decision-maker: Barclay at [101], [127], [140], [146]; BHP Coal at [7], [19], [85]. More particularly, the question is whether the alleged prohibited reason was a “substantial and operative” reason for taking the adverse action: Barclay at [56]-[59], [104], [127]; or an operative or immediate reason: Barclay at [140].

Third, the test does not involve any objective element: Barclay at [107], [121], [129]; BHP Coal at [9]. To speak of objectively obtained reasons risks the substitution by the court of its view, rather than making a finding of fact as to the true reasons of the decision-maker: Barclay at [121]; BHP Coal at [9].

Fourth, the inquiry is not concerned with mere causation, in the sense that it is not sufficient that there is factual or temporal connection between the relevant protected workplace rights and the adverse action: BHP Coal at [18]-[20]. Any such connection, however, may necessitate some consideration as to the true motivation or reasons of the decision-maker: BHP Coal at [22].

Fifth, the question must be answered having regard to all of the relevant facts and circumstances and the inferences available from them: Barclay at [45], [127]; BHP Coal at [7].

Sixth, direct testimony from the decision-maker as to why the adverse action was taken is capable of discharging the burden imposed by s 361: Barclay at [45], [71]; BHP Coal at [38]. However, declarations that the action was taken for an innocent reason may not discharge the onus if contrary inferences are available on the facts: Barclay at [54], [79], [141]. The reliability and weight to be given to such evidence must be assessed having regard to the overall facts and circumstances: Barclay at [127].

Seventh, it is not necessary for the decision-maker to establish that the reason for the adverse action was entirely disassociated from the relevant protected workplace right: Barclay at [62].” 13

RELEVANT LEGISLATION

[28] In his application, the Applicant did not indicate which specific provisions of the Act he relied upon in advancing his claim. However, throughout his submissions and the course of the proceedings, the Applicant referred to the following provisions of the Act.

[29] Section 325 of the Act states:

“Unreasonable requirements to spend or pay amount

(1)  An employer must not directly or indirectly require an employee to spend, or pay to the employer or another person, an amount of the employee's money or the whole or any part of an amount payable to the employee in relation to the performance of work, if:

(a)  the requirement is unreasonable in the circumstances; and

(b)  for a payment--the payment is directly or indirectly for the benefit of the employer or a party related to the employer.

Note:          This subsection is a civil remedy provision (see Part 4-1).

(1A)  An employer (the prospective employer ) must not directly or indirectly require another person (the prospective employee ) to spend, or pay to the prospective employer or any other person, an amount of the prospective employee's money if:

(a)  the requirement is in connection with employment or potential employment of the prospective employee by the prospective employer; and

(b)  the requirement is unreasonable in the circumstances; and

(c)  the payment is directly or indirectly for the benefit of the prospective employer or a party related to the prospective employer.

Note:          This subsection is a civil remedy provision (see Part 4-1).

(2)  The regulations may prescribe circumstances in which a requirement referred to in subsection (1) or (1A) is or is not reasonable.”

[30] The meaning of “workplace right” is set out in s. 341, which states:

“341 Meaning of workplace right

Meaning of workplace right

(1) A person has a workplace right if the person:

(a) is entitled to the benefit of, or has a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body; or

(b) is able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument; or

(c) is able to make a complaint or inquiry:

(i) to a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrument; or

(ii) if the person is an employee—in relation to his or her employment.”

[31] “Adverse action” is defined in s. 342 of the Act, in a table dealing with the various circumstances in which it can be taken by a person against another person. In relation to an employer against an employee, item 1 in the table sets out that adverse action is taken if:

“the employer:

(a) dismisses the employee; or

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

(c) alters the position of the employee to the employee’s prejudice; or

(d) discriminates between the employee and other employees of the employer.”

[32] Section 351 of the Act states:

“Discrimination

(1)  An employer must not take adverse action against a person who is an employee, or prospective employee, of the employer because of the person's race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer's responsibilities, pregnancy, religion, political opinion, national extraction or social origin.

Note:          This subsection is a civil remedy provision (see Part 4-1).

(2)  However, subsection (1) does not apply to action that is:

(a)  not unlawful under any anti-discrimination law in force in the place where the action is taken; or

(b)  taken because of the inherent requirements of the particular position concerned; or

(c)  if the action is taken against a staff member of an institution conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed--taken:

(i)  in good faith; and

(ii)  to avoid injury to the religious susceptibilities of adherents of that religion or creed…”

[33] Section 361 of the Act states:

“Reason for action to be presumed unless proved otherwise

(1)  If:

(a)  in an application in relation to a contravention of this Part, it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and

(b)  taking that action for that reason or with that intent would constitute a contravention of this Part;

it is presumed that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise.

(2)  Subsection (1) does not apply in relation to orders for an interim injunction.”

[34] s.365 of the Act relevantly states:

“365 Application for the FWC to deal with a dismissal dispute

If:

(a) a person has been dismissed; and

(b) the person, or an industrial association that is entitled to represent the industrial interests of the person, alleges that the person was dismissed in contravention of this Part;

the person, or the industrial association, may apply to the FWC for the FWC to deal with the dispute.”

SUMMARY OF THE CONTENTIONS, EVIDENCE AND SUBMISSIONS

[35] The Respondent submitted that its aim as an organisation is to promote the rights of Aboriginal Australians to live on their ancestral country, and to that end the Respondent provides a range of services to support community development and ensure the welfare of residents in the Maningrida community. The Respondent said that due to the nature of its business, it is heavily reliant on Government funding in order to achieve these objectives.

[36] As noted, the Applicant and his partner Ms Rose Cooper, gave evidence at the Hearing. The Respondent relied on witness statements from Ms Dobbie (Human Resources Manager), Ms Gregson (Workshop Manager, Spare Parts & Fleet Coordinator), and Ms Stonhill (CEO).

[37] At the time of filing the F8 general protections application, the Applicant was legally represented, however the application does not nominate any provision of the Act regarding the alleged contravention, nor does the F8B. The Applicant set out his arguments on the alleged contraventions of his workplace rights in the following extracts of his submissions, 14 where he stated:

“74. The Employee exercised his workplace rights on a number of occasions between 16 November 2018 and 4 October 2019.

1st Issue raised BAC Christmas Closure.

•  On 7 December 2018, Bawinanga Aboriginal Corporation Christmas Break, at a workshop meet BAC manager Lance Conway informed myself of a 2 week Christmas closure. I raised with Mr Conway, that I had had relocated to Maningrida for work and being forced to take leave without pay was unfair and affected my agreed salary, therefore if this was enforced I would resign.

2nd Issue Raised Housing.

•  On February 2019 Glenn and his partner meet with CEO Ms Stonhill and Ms Dobbie was present. The meeting were issues moving from temporary housing to proposed permanent housing was not suitable for two people for a two-year period. Myself and my partner Rose remained in temporary housing until after my termination of employment until 19 November 2019.

3rd Issue Raised Incorrect Rate of Pay for Public Holidays.

•  On or before 24 May 2019 I raised a concern with my supervisor, Callem Free, regarding correct rates of pay, including pay for public holiday.

On 24 May 2019 Ms Dobbie emailed me regarding my concerns.

Ms Dobbie copied in various other persons, including my supervisors and the CEO, Ingrid Stonhill.

Ms Dobbie agreed there were ‘anomalies’ with payments for public holidays where I would have been underpaid but stated this was cancelled out by overpayments on other days, and a ‘gifted’ 7.6 hours for 31 December 2018, where BAC instructed Mr Baughen not to work for that day, and I would be paid regardless.

4th Issue Pay increase

On 4 June 2019 I was denied a pay rise as contemplated by clause 7 in my employment contract and raised a complaint about it.

Ms Dobbie wrote to me and Simon Turner to advise of this, and said:

“Thanks Simon.

You are correct. No extension was made to probation period. The pay rate was reviewed against NT skills rates, CEO’s impression and whether Glenn had proved to be an exceptional staff member that went above and beyond – and all areas at all times. On consideration it was decided current rate was appropriate for role.

A 2% increase will be processed in July.”

Bawinanga Aboriginal Corporation did not provide the Employee with any further feedback with respect to my performance in the role.

It can be inferred in the absence of any proper performance review, the decision was the result of the 24 May 2019 email from Ms Dobbie to CEO Ingrid Stonhill.

5th Issue Raised Tool Allowance

•  4 June – 27 June 2019 tool allowance request

•  I raised a concern with his supervisor Simon Turner regarding non-payment of the Tool allowance, as per clause 34.1 Tool allowance in Exhibit 1 The BAWINANGA ABORIGINAL CORPORATION ENTERPRISE AGREEMENT 2017 [ae426649] and that I had not been paid this tool allowance since commencement of employment.

•  Tool allowance had been discussed previously with Lance Conway and readdressed with Simon Turner around Feb/March 2019 and a tool allowance form was expected.

•  On the 27th 2019 June Simon’s final response was “save your tools”.

•  In retaliation the Respondent engaged in retaliatory prohibited adverse action pursuant section 342 (1) (b) of the Fair Work Act (Cth). It was submitted in the form of a letter from office manager Rachel Turner asking for resigning of the occupancy agreement, with a witness signature to be returned by the 14th of June 2019. Power /Electricity now to be transferred into my name.

•  Ms Turner further states, power deductions are only offered in share house arrangements or where it is likely the occupants will only be in the premises short term.

•  That the power will also need to cease being made by payroll deductions.

•  I was given until the 20th of June 2019 to complete power transfer as BAC will cease to be the account holder from this date.

•  I contacted the property owner ‘Batchelor Institute of Education’ who confirmed power is on a shared meter, and ‘Batchelor Institute of Education’ is the account holder, therefore the power is unable to be transferred and will not cease.

6th Issue Bawinanga Aboriginal Corporation Vehicle

•  On 2 October 2019 I was driving a vehicle supplied and owned by Bawinanga Aboriginal Corporation.

•  Curiously and in act of impromptu, I was pulled over by a Northern Territory Police Officer who issued me with an infringement notice for driving an unregistered and uninsured vehicle on a public street. The fine was in the amount of $840.

•  I requested that the fine be paid by Bawinanga Aboriginal Corporation as it was a company vehicle, the registration for which was not my responsibility, nor something I could reasonably be expected to know or control that this Bawinanga Aboriginal Corporation was unregistered.

•  On 4 October 2019, my partner Ms Rose Cooper wrote to Bawinanga Aboriginal Corporation and requested the matter be dealt with.

•  The email goes on to detail issues with having the fine paid and concerns in relation to reprisals for pressing the issue. A copy of the email chain regarding that fine is attached as Attachment H.

•  Bawinanga Aboriginal Corporation took adverse action against me as a result of me exercising my workplace rights in relation to the infringement notice of $840…

[38] In relation to the issue of the employer requiring the payment of the infringement notice, the Applicant submitted as follows:

•  I contend that Bawinanga Aboriginal Corporation have contravened my workplace right which is section 325 (1) of the Fair Work Act (Cth).

•  Section 325 (1) of the Fair Work Act (Cth) states -

“325 Unreasonable requirements to spend or pay amount

(1) An employer must not directly or indirectly require an employee to spend, or pay to the employer or another person, an amount of the employee’s money or the whole or any part of an amount payable to the employee in relation to the performance of work, if:

(a) the requirement is unreasonable in the circumstances; and

(b) for a payment – the payment is directly or indirectly for the benefit of the employer or a party related to the employer.”

•  In the Federal Court decision [2014] FCA 33 Fair Work Ombudsman v Jetstar Airways Ltd (6 February 2014), the Federal Court of Australia fined Jetstar $90,000 after it found that the airline had unlawfully deducted training costs from the wages of six cadet pilots in 2011.

•  The Federal Court of Australia ordered penalties against Jetstar Group Pty Ltd and Jetstar Airways Pty Ltd (the entities) after the entities deliberately and unlawfully tried to force the cadet pilots to pay for their own training. In doing so, the entities ignored the advice given to them by their external Industrial relations consultant and the head of its flying operations to adhere to the terms of the governing modern award which stated that the employer was responsible for the costs of any required training.

…

•  Jetstar deducted a total of $17,500 over four months from the wages of the cadet pilots involved but returned the money after the Australian Federation of Air Pilots (AFAP) launched legal proceedings against the entities.

•  In the Federal Court of Australia decision [2013] FCA Murrihy Betezy.com.au Pty Ltd 908 (10 September 2013) of Judge Jessup his Honour found in favour of the employee in terms of the breach of contract claim for four years of unpaid commissions to the employee.

•  In this decision Judge Christopher Jessup noted that the employer suspended the employee without paying the employee her commissions and discontinued her access from the employer’s computer system.

•  Judge Jessup ruled that this amounted to adverse action.

•  The employer argued this action was taken in response to allegations of cab charge misuse.

•  Judge Jessup rejected this argument from the employer and found that the action was taken because of the complaints made by the employee about the underpayments and the involvement of lawyers to make those complaints.

•  Therefore the adverse action was taken for reasons prohibited under section 340 of the Fair Work Act (Cth).

•  In the Federal Court of Australia decision [2013] FCA Murrihy v Betezy.com.au Pty Ltd 908 (10 September 2013) Judge Jessup rejected the employer’s argument went on to state that seeking legal advice constituted an “inquiry” within s 341(1)(c) of the FW Act (Cth) and held that an unrepresented employee “should be able to have recourse to his or her solicitor, without the fear of repercussions in the nature of ‘adverse action’ taken by the employer”.

…

•  In the Federal Court of Australia decision [2013] FCA Murrihy v Betezy.com.au Pty Ltd 908 (10 September 2013) Judge Jessup explaining the significance and meaning of section 323 of the Fair Work Act (Cth) as a workplace right where his Honour further states – “

“142. A significant innovation introduced by the Fair Work Act (Cth) was the imposition of an obligation upon a “national system employer” (such as each of the respondents was) to pay its employees amounts payable to them in relation to the performance of work in full at least monthly: s 323(1) of the Fair Work Act (Cth). Thus the legislation picks up, amongst other things, entitlements arising under contracts of employment and gives statutory consequences to an employer’s failure to make good on them. In this respect, s 323(1) is a civil remedy provision. There is– and there would have been at the time of the introduction of this provision – no reason to assume that the employees for whose benefit s 323(1) of the Fair Work Act (Cth) was enacted would be confined to those in unionised sectors and occupations. Perhaps more than ever before, it must realistically be accepted that individual employees, without the benefit of union representation, will often need to seek their own advice and representation in relation to rights arising under federal industrial legislation.

143 Against the wide terms of s 341(1)(c)(ii), I can think of no reason to assume that the legislature did not regard the protection of an unrepresented employee, who had rights under his or her contract of employment or other agreement with his or her employer, as within the range of protections provided by the provision. That such an employee should be able to have recourse to his or her solicitor, without the fear of repercussions in the nature of “adverse action” taken by the employer, would be well within the purposes of the section as they may be perceived in the legislative context to which I have referred. Further, to regard the seeking of legal advice as an “inquiry” within the meaning of para (c) is, in my view, a natural reading of the provision. I take the view, therefore, that the applicant’s proposal, conveyed to Mr Kay on 20 September 2011, that she would seek legal advice was a proposal by her to make an inquiry in relation to her employment within the meaning of s 341(1)(c)(ii) of the Fair Work Act (Cth).

…

163. There was, in the circumstances, a contravention by Betezy of section 323 of the Fair Work Act (Cth) in respect of each such month. I shall hear from the parties on the question of penalty. The amount claimed by the applicant has now (ie very recently) been paid, as a result of which I do not understand the applicant to seek the making of a compensatory order.

•  In the Federal Circuit Court of Australia decision [2019] FCCA 3262 Fair Work Ombudsman v Abella Travel Pty Ltd & Anor (13 November 2019) Judge Riley determined that the underpayments were deliberate and intentional and took advantage of vulnerable 457 visa employees.

•  The contraventions were admitted by the employer, and underpayments totally over $37,000 were repaid to the employees. The travel agency was ordered to pay penalties of $332,100 and the director was ordered to pay $66,420 for his involvement in the agency’s contraventions.

•  Judge Heather Riley in her decision states –

The most significant of the contraventions was that the first respondent entered into a cash back arrangement with two of its employees whereby the employees were required to repay part of their salaries to the first respondent. This arrangement appears to have been made because the two employees wanted subclass 457 visas, and there was a minimum salary that had to be paid for any position nominated for such a visa. The contracts specified salaries above that minimum, but the cash back arrangements brought the salaries well below that minimum.

…

Legislation

The parties agreed that the cash back arrangement was in breach of section 325

(1) of the Fair Work Act (Cth), which provided that:

“An employer must not directly or indirectly require an employee to spend, or pay to the employer or another person, an amount of the employee's money or the whole or any part of an amount payable to the employee in relation to the performance of work, if:

(a) the requirement is unreasonable in the circumstances; and

(b) for a payment – the payment is directly or indirectly for the benefit of the employer or a party related to the employer.”

[39] In the days prior to the hearing, the Applicant’s representative sought evidence to be provided from other employees of the Respondent that were not currently being called as witnesses. The legal representative for the Respondent advised that these employees were not being called as witnesses. The Applicant did not file any further correspondence on this issue, nor did they make any applications for orders to attend. The Applicant’s representative later argued that a Jones v Dunkel 15 inference should be drawn, on the basis that the Respondent did not bring evidence from these employees.

Terms of the Applicant’s employment

[40] There was a significant factual dispute between the Applicant and Respondent regarding the Applicant’s fixed term employment contract. There was no dispute that the Applicant was on a fixed term contract; rather, the parties disputed the length of that contract, whether it was for a one or two year period.

[41] The Respondent said it initially offered the Applicant employment on the basis of a two year fixed term contract. A copy of the agreement signed on 24 October 2018 by Mr Karl Dyason, then-CEO of the Respondent, was provided to the Applicant. The contract relevantly provided in relation to length of employment:

“1. Status of Employment

Subject to your acceptance of the terms and conditions of this Agreement, your employment will commence from 12th Nov 2018, and continue for two years unless:

a) It is terminated before that date in accordance with the termination provisions of the Bawinanga Aboriginal Corporation Enterprise Agreement; or

b) The Agreement is extended by mutual agreement in writing.

Any extension to this Agreement will be dependent on continued funding for the position. The parties may agree to extend the Agreement, but they are not obliged to do so. If the Agreement is extended, these conditions will apply, unless replaced.”

[42] In subsequent correspondence with the Respondent, the Applicant queried whether a one year term would be considered. The Respondent confirmed that a one year term could be agreed, but that, due to the shorter duration, only basic relocation costs would be provided.

[43] Ms Dobbie, the then Human Resources Manager, gave evidence that the Applicant verbally accepted the Respondent's offer of employment on the basis of a one year term 16 and returned a copy of the employment agreement to the Respondent, including a handwritten notation next to the term that read “1 year.” Notably, on the copy of the agreement provided to the Commission by the Respondent as Annexure RD-3 to Ms Dobbie’s statement, the words “two years” are not crossed out – rather, the amendment appears next to this sentence. This copy is also not initialled on the page with the amendment, but is signed on the signature page of the agreement at page 7.

[44] The Respondent submitted that on 7 December 2018, after relocating to Maningrida and commencing with the Respondent, the Applicant met with Ms Dobbie to submit a reimbursement claim for his moving expenses. The expense form, which is signed by both Ms Dobbie and the Applicant, notes relocation costs for “basic 1 year”. During this meeting, Ms Dobbie said the Applicant again confirmed the employment agreement was for a one year period, explaining that the term of one year was elected as he wanted to see how well his partner would settle in Maningrida, and said that he considered the remuneration was relatively low compared to what he could earn in the mining industry. 17 There was some debate by the Applicant, regarding the actual date he commenced working under the contract, at the workplace, given he stated that he had discussed a slightly later start date as his partner had to have some medical treatment. He submitted that this was accepted by the Respondent. The Applicant therefore later stated, that this delayed the start date and flowing from this, altered the one year expiration date. Whilst the Applicant argued that it was a two year contract, the Applicant stated that the Respondent had relied on the original contract dates, that had not met the one year term of the contract.

[45] Ms Dobbie said she asked the Applicant to initial a copy of the employment agreement next to the hand written “1 year” notation and that the Applicant did this. This was witnessed by Ms Dobbie and another employee of the Respondent, Ms Dotty Repu, who sent an email confirming this to Ms Stonhill on 9 March 2020. That email correspondence was annexed to Ms Stonhill’s witness statement in the matter.

[46] A further copy of the contract was provided by the Respondent as an attachment to their Form F8A response as Annexure A5. That copy features the “1 year” annotation in the same place as the other copies and in the same font, but features an X above the “1 year” annotation and is signed, the Respondent notes by the Applicant. It is further signed in the bottom-right corner in handwriting that is difficult to read, but appears to be signed by Ms Dobbie and dated 7/12 (presumably referring to 7 December 2018).

[47] The Respondent stated that throughout the Applicant’s employment, the Applicant and his partner continued to make comments reflecting their intention to only remain in Maningrida for a one year period, including stating this at a meeting in April 2019.

[48] On 25 October 2019, the Respondent provided the Applicant with two weeks' notice that the employment agreement would not be renewed and, accordingly, his employment would conclude on 11 November 2019.

[49] The Respondent said the Applicant raised that he considered his employment to be for a period of two years for the first time on 11 November 2019 as a result of the Respondent declining his requested an amount of relocation costs. The Respondent said the Applicant’s request went well beyond the agreed basic repatriation costs, and the Respondent considered the relocation costs to be unreasonable. The Respondent said that despite only receiving basic relocation costs, in line with a one year contract, the Applicant had not contended that he was entitled to reimbursement of greater relocation costs on moving to Maningrida, as would be the case had he been employed for a two year fixed term period.

[50] The Respondent submitted that, throughout his employment, the Applicant demonstrated a willingness to raise perceived concerns with the Respondent, including in respect of rates of pay, requests for pay reviews, application of allowances, and concerns regarding accommodation and the payment of an infringement notice. The Respondent said that had the Applicant genuinely been of the understanding that his employment was for a period of two years, he could have raised it immediately following the issue of the termination letter on 25 October 2019; and/or at the time of being reimbursed only basic relocation costs (consistent with a one year contract) paid at the commencement of his employment; and/or at any other time during his employment. However the Applicant did not raise this at those times.

[51] The Respondent provided detailed correspondence between Ms Dobbie and the Applicant concerning the employment agreement, attached to Ms Dobbie’s statement as Annexure RD-2. The Applicant emailed Ms Dobbie on 3 November 2018 with comments and questions regarding the employment agreement. Relevantly, the Applicant wrote:

“1.STATUS OF EMPLOYMENT:

Subject to acceptance a 2 year term .

Will the Corporation consider a 1 year contract?

With the options of extending another year or unless indicated by clause a) orb) of this contract?”

[52] On 5 November 2018, Ms Dobbie replied to each of the Applicant’s questions and comments regarding the Agreement. Regarding status of employment, Ms Dobbie wrote “Yes a one year contract could be agreed - but we would only pay for fuel for vehicle relocation. Not additional charges on such a short term.”

[53] On 6 November at 10:08am, the Applicant wrote to Ms Dobbie stating:

“Morning Rachel

I'm just waiting on contact with Lance [Conway], in regards to a few more questions, and will have signed contract sent back by end of day.

Also do you have a fit for work medical form bac use, as GP would like a form as to what type of fit for work medical form.”

[54] Ms Dobbie replied at 10:09am, stating:

“Thanks Glenn. No we don't have a form. All GPs in past have done a basic fit for work same as for driving, physical.

Warm Regards

Rachel Dobbie
Human Resources Manager”

[55] The Applicant wrote back to Ms Dobbie at 11:28am accepting the position offered:

“Morning Rachel,

Have spoken to Lance and accept the position offered, will bring signed contract and other forms out with me next week.”

[56] The Applicant denied signing or initialling the amended agreement. The Applicant said he understood he had a two year contract with the Respondent commencing 12 November 2018. He said he contacted the Respondent on 5 October 2018 regarding the advertised position, and was flown to Maningrida for a face to face interview on 24 October 2018. At this interview, the then-CEO, Mr Dayson, signed the employment contract.

[57] The Applicant agreed that he wrote to Ms Dobbie with a list of questions and comments regarding the agreement, including whether a one year contract would be considered, and that Ms Dobbie replied stating that a one year contract may be available but with limited relocation expenses.

[58] The Applicant said he wrote back as above and accepted the position, but that he had a few further questions for Mr Conway. The Applicant met with Mr Conway on 16 November 2018 after relocating to Maningrida, and signed the contract on that day, providing it to Mr Conway who returned the original copy of the agreement but swapped the signature page with a copy and kept the original page. The Applicant provided a scanned copy of the contract as Attachment C to his Form F8. The copy provided includes the written amendment, but does not feature any striking through of the words “two years” and is not initialled. The copy provided by the Applicant is signed on the signature page of the agreement at page 7.

Exercise of workplace rights

[59] The Applicant contended that there were several incidents when he exercised his workplace rights.

[60] On 24 May 2019, the Applicant raised a concern with his supervisor, Mr Callem Free, regarding correct rates of pay, including pay for public holidays. Ms Dobbie emailed the Applicant regarding his concerns, and copied in various other people, including the Applicant’s supervisors and Ms Stonhill. Ms Dobbie agreed that there were anomalies in the Applicant’s pay but said these were cancelled out by overpayments on other days and a ‘gifted’ 7.6 hours for 31 December 2018. The email read:

“Hi Glenn

I have been advised by Housing that you request compensation for the Public Holidays – of 19/4 , 22/4, and 25/4 that are paid as 7.6 hours – when your work days are 8 hours. Simon has confirmed that Monday – Thursday, your work is averaged at 8 hours. And Fridays your work us averaged at 6 hours.

So 22/4 – was a Monday – and based on 8 hours you are claiming we owe you .4 of an hour.

25/4 was a Thursday - and based on 8 hours you are claiming we owe you .4 of an hour.

19/4 was a Friday – based on average of 6 hours, you were overpaid 1.6 hours.

We also gifted you a full 7.6 hours on 31 December, to make up for these slight anomalies – and so our Payroll staff is not caught up making continual petty adjustments.

If your preference is to work it out as above, I will calculate across the full year, but I will also be removing the gifted day. In the full year there are 11 Public Holiday – one falling on a Friday. So that is 4 hours underpaid (10 days at .4), and 9.2 hours overpaid (1 day at 7.6 and one day at 1.6). You were actually going to be 5.2 hours ahead in total for the year.

We have tried to make the situation fair by gifting an extra day to all staff. With that in mind, this type of request seems unnecessary and intended to create a problem that does not exist. This behaviour does not fit with the values of BAC.

Simon – please keep this in consideration for the future.

Regards
Rachel Dobbie
Human Resources Manager”

[61] The Respondent accepted that this query constituted the exercise of a workplace right to make a complaint or inquiry in relation to the Applicant’s employment within the meaning of s.341(c)(ii). However, the Respondent also considered that the matter, as resolved, as with other staff exercising this inquiry, had been resolved, and that no adverse action related to the inquiries, for the Applicant or other employees.

[62] On 2 October 2019, the Applicant was pulled over by a police officer while driving a vehicle supplied by the Respondent, and was issued an infringement notice for driving the Respondent’s unregistered and uninsured work vehicle on a public street and fined $840. The Applicant said he requested the fine be paid by the Respondent as it was a company vehicle, and he could not control or have known about the registration of the vehicle.

[63] With regard to the infringement, the Applicant’s partner, Ms Rose Cooper, wrote to the Respondent on 4 October 2019 requesting the matter be dealt with:

“Dear Hank,

Following our conversation yesterday attached the information you have requested.

Further down this email “police system copy” of the fine.

Enclosed a summary of events that occurred pre-post fine.

I contacted the office yesterday to speak with Ingrid (CEO). Unfortunately Ingrid was not available.

I have since spoken to you, Hank regarding a BAC vehicle that was issued to Glenn Baughen (my partner) on Friday 29 Sept by his managers Symon and Callum (homeland).

Glenn was pulled over by a police officer in Maningrida on Wednesday 2 October approx 1500 hours

Glenn was informed that the vehicle was not registered and that the registration expired 6 months ago.

Glenn was issued a fine, under his license.

The officer informed Glenn “if the vehicle is registered by the end of the day the fine will not be enforced”.

Glenn immediately heads to the housing office and spoke to his manager Symon of the infringement, and that the vehicle is not registered.

Symon's response “really”? Symon instructed Glenn to drive the vehicle to the BAC mechanical workshop.

Glenn follows Symons instructions.

After leaving the vehicle with the mechanics Glenn leaves with a truck which was issued to him earlier this year.

The truck had been reallocated to a new plumber who was supposed to start Monday.

Due to the new plumbers absence, Glenn had a vehicle to continue his work.

The following day Thursday 3 October. Glenn asked Symon what was happening with the fine he had been issued.

Symon's response "bring fine to me". Symon at that moment was in a vehicle leaving the office, he drove away.

Glenn visits the local police station approx 1330hours and was informed that the fine will be mailed, fines are no longer issued on the spot.

The officer provided Glenn with a local system copy, Glenn will receive the actual fine by post.

(attached the system copy).

Glenn was informed by BAC mechanic Brendan that the vehicle Toyota Land Cruiser needs a vehicle inspection (over the pits).

I have contacted you directly due to Glenn not wanting to cause conflict with his manager(s) Symon or Callum.

Glenn has stressed to me repeatedly, he does not want to cause an unpleasant working environment or repercussions towards him.

I have reassured Glenn that, if "problems" arise once I have reported the incident, I will not hesitate to take further action against those managers.

This is absolutely unacceptable! Symon and Callum are responsible for ensuring “alt” workers under their management are SAFE.

This includes BAC vehicles are compliant, equipment safety checks are current, work site(s) are “safe”, permits required in place or permission to be on an outstation have been arranged, all operations are their responsibility. SAFETY is paramount more so living remote!

This fine has caused conflict between Glenn and I.

1. Glenn has been protesting that I contact your office. I have managed to convince Glenn this is the "right action". No more taking one for the team!

2. Glenn worries about a fine/bill $840. It is issued under his name. Glenn's license is clean.

3. Repercussion towards Glenn by his managers at housing, once this complaint is submitted. I have reassured Glenn!

4. Glenn has become vague to the events of what has been discussed between himself and Symon. Glenn did not want me to contact upper management.

5. This complaint has taken many heated conversations between Glenn and I to ensure the above information is accurate.

I would appreciate that you email me of the outcome to my complaint.

If a face to face is required by Glenn to discuss my complaint, we will be attending together.

Unfortunately next week will not work. The week of the 14 October will suit, please send several options of a day and times.

Yours Sincerely

Glenn and Rose

Update Friday 4 October @ 1300hrs:

Glenn has organised his workload for next week.

Glenn has asked Symon “is the tilt tray registered” since Glenn will be driving this truck.

Symon has searched its registration, confirmed the tilt tray is legal.

Symon has briefly mentioned to Glenn, while exiting for the day that that the "other" is sorted!

Symon has driven away before Glenn can hand the police generated FINE to him.

Glenn has the fine on his person, which I have provided to upper management.

I am unsure what the comment of “other” is? Glenn is not sure of his response either.

Regards
Glenn and Rose”

[64] On 30 October 2019, Ms Cooper wrote again to the Respondent stating that as the Respondent was aware Glenn’s contract had been terminated, she was requesting the fine be paid and a copy of payment be sent to her before she and the Applicant left.

[65] Mr Hank Arts (Manager Corporate Services) wrote to Ms Cooper and advised that he was aware that the Applicant’s contract had been completed. Mr Arts requested the Applicant pay the fine and email the receipt, and that the Respondent would then contribute 50% of the fine in cash for the Applicant to collect.

[66] Ms Cooper disputed this with Mr Arts across several further emails that day, requesting the Respondent pay the fine in full. The Respondent maintained its position that it would pay 50% of the fine. Ms Cooper sent a further email on 30 October disputing that the Applicant’s contract had come to and end and stating the matter would be referred to the Board of Trustees for the Respondent:

“Glenn's contract has not come to an end, Monday 28th October Glenn was asked to leave the premises by Callem Free, insturctions handed down by BAC HR manager Rachel Dobbie.

Callem informed Glenn that he would be paid for the next two weeks and he was not to be at work. This was in front of Glenn's work colleagues.

No explanation given to Glenn, why he was being stood down with pay.

No confidentiality offered.

An infringement was issued to Glenn on 2 October 2019 whilst operating a BAC vehicle. (refer to my email sent to you, Hank on the 4th October 2019).

Regardless of the fine being in Glenn's name he was issued and driving a BAC unsafe, unregistered and uninsured vehicle.

Refer to Glenn's contract equipment, and the EBA.

Since you are not willing to admit full liability of the fine, and refuse to pay the entirety $840, I will refer my email to the Board Of Trustees.

Regards
Glenn and Rose”

[67] The Respondent rejected the Applicant’s contention that the emails from Ms Cooper constituted the exercise of a workplace right to make a complaint or inquiry in relation to his employment within the meaning of section 341(c)(ii) of the Fair Work Act.

[68] The Respondent argued it has previously been held that for the purposes of section 341(1)(c)(ii) the requisite relationship between the complaint or inquiry with the employee's employment may be direct or indirect, 18 and complaints by family members on behalf of an employee may fall within the scope of this provision,19 but such complaints must be underpinned by an entitlement or right.20

[69] The Respondent, in regard to the payment of the infringement notice, cited to Steward J in Environmental Group Ltd v Bod [2019] FCA 951 Steward J at [128], who set out:

“That the "right" to complain must be found in some entitlement or right contained, for example, in a contract, has more recently been confirmed by the Full Court of this Court in Cigarette & Gift Warehouse Pty Ltd v Whelan [2019] FCAFC 16 where Greenwood, Logan and Derrington JJ said at [28] that the primary judge, in that case, was correct to observe that: … a complaint that an employee is able to make in relation to his or her employment is not at large, but must be founded on a source of entitlement, whether instrumental or otherwise.”

[70] The Respondent submitted that the Applicant had not established any entitlement or right that underpins the right for he, or his partner, to complain about an infringement notice issued in the Applicant's name in circumstances in which the Applicant was aware that the vehicle was unregistered before taking it out onto the road. The Respondent’s evidence did not substantiate an awareness (on the Applicant’s part) that the vehicle was unregistered.

[71] Ms Dobbie’s evidence was that in October 2019, she had a conversation with Mr Arts where he told her an infringement notice had been issued to the Applicant. During this conversation, Ms Dobbie said Mr Arts told her:

(a) he had been contacted by Ms Cooper regarding the infringement notice but had not yet spoken to the Applicant;

(b) Ms Cooper was claiming the Applicant was not aware that the vehicle was unregistered at the time he drove it, but this contradicted what Mr Arts had been told by other employees of the Respondent;

(c) he had been trying to arrange a meeting with the Applicant, but so far the Applicant had not come to see him; and

(d) he was willing to pay half of the infringement notice, but that he thought the Applicant had to be partially responsible for his own safety as he would have had to have undertaken a vehicle pre-check requirement.

[72] Annexed to Ms Dobbie’s witness statement were several emails from Mr Arts to the Applicant requesting that they meet to discuss the infringement notice.

[73] Ms Gregson also gave evidence regarding the vehicle. Ms Gregson said that in the afternoon on 2 October 2019, she was having a conversation with two of the Workshop workers, Ms Jade Francis and Mr Nicholas Minisini, who told her that one of the Housing workers had been fined for driving an unregistered vehicle of the Respondent.

[74] Ms Gregson said she could not recall whether it was Ms Francis or Mr Minisini that did most of the talking, but they said to her words to the effect of “Earlier this morning, Glenn [the Applicant] from Housing brought a car into the workshop. He didn't have an appointment, but he drove up into the tyre bay and asked us to change over the tyres. While we were swapping the tyres, we told him that the car is not roadworthy because it is unregistered. Once we finished swapping the tyres, he left with the car then we heard he got fined while he was out on the road.” These witnesses (Ms Francis and Ms Minisini) were not called for cross-examination by the Applicant’s representative.

[75] Ms Gregson said that later that afternoon, she was on the phone with Ms Rachael Turner, then the Office Manager of Housing and Homelands, and asked about the infringement notice for driving an unregistered car. Ms Turner said she was not aware that Glenn had received the infringement notice and asked what car, and Ms Gregson said it was the old Landcruiser ute that the Workshop team were waiting on parts for. Ms Turner told Ms Gregson that “everyone knows within Housing that the vehicle is unregistered and not road worthy - it has been parked up for months.” However the evidence was that the Applicant had been authorised to drive the vehicle.

[76] Ms Gregson said she did not know how the Applicant gained access to the vehicle’s keys, but that in her experience there is a process behind accessing the keys. She admitted she didn’t know what the process was for Housing employees, but said that she regularly advised employees in the Workshop that they should be responsible for what they drive and make sure it is roadworthy before they take a vehicle out. Ms Gregson said she was not sure whether Housing employees are told the same thing, but expected that it would be common knowledge.

Alleged adverse action

[77] As previously referred to, the Applicant alleged the Respondent took adverse action against him on several occasions.

[78] The Applicant said that on 4 June 2019, he was denied a pay rise as contemplated by clause 7 of his employment contract. Clause 7 relevantly reads:

“7. Remuneration

Salary shall be paid weekly by direct credit into a bank or credit union account of your choice. Your total remuneration package will be $92, 768.94 per annum.

Your annualised remuneration package based on 38 hours per week is as follows:

Base salary Level 8.3 $ 82,829.41

Superannuation @ 12% $ 9, 939.53

Total Remuneration Package $ 92,768.94

Your remuneration package may be reviewed from time to time in accordance with Bawinanga Aboriginal Corporation policy. Any increases in remuneration will be at the sole discretion of the CEO.”

[79] The Applicant, in arguing this adverse action, provided a series of emails as Annexure I to his Form F8. The Applicant wrote to his supervisor, Simon Turner, on 4 June 2020 querying whether his probation period had been extended, and regarding his pay review:

“Hi Simon,

Thanks for the documents last week.

I am still wanting a response to my probationary period being extended from 3 months to 6 months, which has now exceeded its time.

When I had approached you back in February-March asking of my pay review.

You had made enquires with HR who had informed you I was still on probation. I would like this followed up.

During this time I had asked about the tool allowance, you said to me a "Tool allowance Form" will be organised for me to complete. I have not received this form, could you attend to this.

Thanks
GC Baughen”

[80] Mr Turner replied that morning and said he believed that the Applicant’s probation period had not been extended and had finished. Mr Turner said that he had been advised that there would not be a pay increase for the Applicant as his role had not changed, but that all staff would receive a 2% increase from 1 July 2019 (an increase under the Agreement).

[81] Ms Dobbie wrote to the Applicant that day by way of reply email to Mr Turner’s correspondence and confirmed the Applicant’s probation period had not been extended, and that the CEO had determined the Applicant’s current rate was appropriate for the role:

“Thanks Simon.

You are correct. No extension was made to probation period. The pay rate was reviewed against NT skills rates, CEO’s impression and whether Glenn had proved to be an exceptional staff member that went above and beyond – and all areas at all times. On consideration it was decided current rate was appropriate for role.

A 2% increase will be processed in July.

Warm Regards
Rachel Dobbie
Human Resources Manager”

[82] The Applicant argued that in the absence of any feedback with respect to his performance, it could be inferred that the decision to deny him a pay rise was as a result of his enquiry regarding rates of pay. The email from Ms Dobbie copied to Ms Stonhill on 2 May 2019, however provided a cogent response regarding the basis for not being provided with a wage review, given the nature of the role.

[83] Ms Stonhill’s evidence was that as the Respondent is a not for profit organisation, it was very conscious about job sizing all positions appropriately for the requirements of the role, and that generally, it was explained to all employees that the Respondent is not a commercial entity and as such pay was linked to the job size and not necessarily to the experience of the person.

[84] Ms Stonhill said that she was conscious that the Respondent's Enterprise Agreement, the Bawinanga Aboriginal Corporation Enterprise Agreement 2017 (the Enterprise Agreement) provides for a 2% CPI increase annually, and that accordingly, additional pay rises do not generally happen as a matter of course, unless someone has changed their actual position into a higher paying role.

[85] As the Chief Executive Officer, Ms Stonhill said she needed to consider and approve all decisions regarding increases in remuneration. She said that in June 2019, Ms Dobbie brought to her attention that the Applicant had requested a pay rise. Taking into account the Respondent’s general practice and also the Respondent's broader financial circumstances, Ms Stonhill said she did not see any reason to vary from our usual operating procedure and, as such, declined the Applicant’s request for a pay increase. Adverse action was not made out by the Applicant on the issue of the non-provision of a separate renumeration increase. The Applicant requested such, the employer explained that it was rarely provided, however the annual wage increase was paid.

Termination of employment

[86] The Applicant said that on 25 October 2019, he received a letter advising he had a fixed term contract due to be renewed or extended by 12 November 2019. The letter said the contract would not be renewed and that the Applicant would be paid until 11 November 2019:

“Dear Glenn

I note your fixed term contract with Bawinanga Aboriginal Corporation is due to conclude or be renewed on 12th November 2018. I would like to thank you for your completed service. I would advise that we will not be extending or renewing your contract beyond this date. Please take this as two weeks' notice of no extension.

Your final date for work would be Monday 11 November, but we acknowledge you may be disappointed with the decision and therefore you are not required to work out the two-week notice period.

You will be paid any outstanding statutory entitlements up to and including the 11th of November 2019, in your final pay. Before this, you are required to return any items that are the property of BAC including tools, keys and any other items that were purchased by BAC for company use. BAC reserve the right to withhold monies until all property is returned.

It is also noted that you currently reside in a BAC property and have basic reasonable repatriation costs to Darwin. Please let HR know any assistance you will need with organizing this. You are required to vacate your premises within two weeks of the conclusion of this contract. Prior to departure you should arrange to have the house inspected by BAC Housing. The balance of your Security Deposit, less any costs, will be returned in the first pay run after departure and house inspection.

We wish you well in your future endeavours and thank you for your service to Bawinanga Aboriginal Corporation.

Yours sincerely
Ingrid Stonhill”

[87] The Applicant argued in his Form F8 that his contract was for a period of two years, and his termination was therefore unlawful in the absence of any justifiable reason. The Applicant rejected the Respondent’s claim that he had initialled the contract and said that the signature did not resemble his signature. He also contested the genuineness of the email correspondence from Ms Dobbie concerning the availability of a one-year contract and raising further concerns and questions regarding the terms of the contract. It had been confirmed in evidence however, that in discussions leading up to the contract, that the Applicant had queried a 1 year contract, being concerned about the 2 year period for his partner.

[88] The Applicant submitted in the alternative for the claim for unlawful dismissal arose, as he was not offered a further contract as the direct result of his exercising his workplace rights as argued.

[89] The Respondent submitted that it did not dismiss the Applicant, but rather the Applicant's employment ceased by effluxion of time on the expiry of the employment agreement, that had been agreed after the discussions of a 1 year period.

[90] Ms Stonhill, the Chief Executive Officer, gave evidence that at the time the Applicant’s contract expired, the Respondent had a number of funding concerns. Ms Stonhill said she determined that four staff within the Housing Department where the Applicant worked would not be offered a contract renewal, including the Applicant, his supervisor Mr Turner, a welder, and a carpenter.

[91] Ms Stonhill said she discussed the lack of funding and the issue of renewal, with regard to the Applicant’s contract, with both Mr Turner and Ms Dobbie. Ms Stonhill said the decision not to renew Glenn's employment contract for a further year, was made in accordance with clause 1 of his employment contract.

[92] Ms Stonhill said that on 25 October 2019, she signed and issued the letter set out above confirming that his employment would conclude on 12 November 2019 and that he would not be required to work the two-week notice period. Although the Applicant was only entitled to one weeks’ notice, Ms Stonhill said she determined it would be appropriate to provide two weeks' payment in lieu of notice to allow the Applicant and his partner plenty of time to pack up their accommodation and arrange relocation from Maningrida back to Darwin.

[93] The Respondent referred to the decision of Victoria v Commonwealth, 21 wherein the Court considered whether terms of the Industrial Relations Act 1988 (Cth) prevented the States from determining terms and conditions on which those at higher levels of government will be engaged. The Respondent submitted the High Court specifically considered the terms relating to termination of employment, which contained a prohibition that
“[a]n employer must not terminate an employee's employment,” and held at 173 (Respondent’s emphasis):

“As a matter of ordinary language, an employer does not terminate an employee's employment when his or her term of employment expires. Rather, employment comes to an end by agreement, or, where the term is fixed by award or statute, by operation of law. There is nothing in the Act to suggest that the words “[a]n employer must not terminate an employee's employment” are to be construed other than in accordance with their ordinary meaning. So construed, they do not apply to the situation where employment comes to an end because its term has expired.”

[94] The Respondent further referred to the Full Bench case of Department of Justice v Lunn (2006) (C2006/2686) at pagagraph [10], where it was held, after citing with approval the passage from Victoria above:

“When a contract for a specified period or an 'outer limit' contract reaches the nominated end date, the contract terminates through the effluxion of time and there is no termination of employment at the initiative of the employer.”

[95] The Respondent argued that, as in this case, a person will not be taken to have been dismissed if the person had been employed under a contract of employment for a specified period of time, and that period expired. 22 Accordingly, the expiry of the Applicant’s employment contract did not amount to a “dismissal”, constituting adverse action under section 342(1).

[96] The Respondent further denied that the decision not to renew the employment contract amounted to adverse action under section 342(1). The Respondent submitted that the circumstances of this case were analogous to those considered by Vasta J in Klein v Australian Baseball League Pty Ltd. 23 The Respondent submitted that in that case, the applicant, Mr Klein, was provided with one months’ notice of the termination of his employment, which coincided with the end of his contract. Mr Klein contended that his termination and the decision not to renew or extend his contract was adverse action, motivated by a number of complaints he had made to his employer. Vasta J found that Mr Klein’s employment had not been dismissed and, further, that there was no obligation on the employer to renew or extend the employment contract.

[97] The Respondent referred to clause 1 of the employment agreement which provided that “any extension to this Agreement will be dependent on continued funding for the position. The parties may agree to extend the Agreement, but they are not obliged to do so. If the Agreement is extended, these conditions will apply, unless replaced.” Accordingly, the Respondent submitted that there was no obligation on the Respondent, within the Employment Agreement or otherwise, to renew or extend the Applicant's employment.

Notice period amounting to early termination

[98] In reply to the Applicant’s submissions regarding the notice period amounting to early termination, the Respondent said that the Applicant’s employment was not terminated prior to the conclusion of the agreed contractual term, nor was he paid out the balance of the Employment Agreement or provided with any payment in lieu of notice. Instead, the Respondent set out that the Applicant was provided with two weeks notice (and advised that his Employment Agreement would not be renewed). The Respondent submitted this was for the purpose of affording the Applicant and his partner sufficient time to pack belongings for relocation.

[99] The Respondent noted that the Applicant relied on the decision in Downes v The Uniting Church in Australia Property Trust (Q.) 24 in support of his position. However, the Respondent stated that Downes25 differed from the current circumstances in that the relevant employee was paid out the balance of her employment contract prior to its conclusion (a period of one month), and that she did not remain subject to her employment contract during that period. Therefore, the Respondent denied that providing the Applicant with two weeks notice, during which time he was not required to perform his duties but remained subject to his Employment Agreement, can be said to be analogous to the case of Downes.

Ambiguity as to the terms of the Employment Agreement

[100] In reply to the Applicant’s submissions regarding the argument of ambiguity as to the terms of the Employment Agreement, the Respondent acknowledged the accepted practice of ‘contra proferentem’ construction as per the case of Fraser v ACT for Kids, 26 but rejected that there was any ambiguity as to the terms of the Employment Agreement in this matter.

[101] The Respondent submitted that the parties had an expressed agreement as to the duration of the Employment Agreement, which was initially of a verbal nature and was subsequently confirmed by the handwritten annotations that were made and initialled by the Applicant on the contract. Furthermore, the Respondent stated that the duration of the Employment Agreement was again confirmed verbally between the parties at a meeting in April 2019, which was attended by two representatives of the Respondent.

Dismissal due to lack of funding

[102] The Respondent noted that while there is no express reference to the effect of ‘dismissal taking place due to lack of funding’, the Applicant relied on the decision in Papalia v Co.As.It. - Italian Assistance Association, 27 to allege that the Employment Agreement was terminated at the initiative of the Respondent because the agreement included a clause acknowledging that the renewal of the agreement was subject to funding. The Respondent noted that the Applicant presumably relies on this as an argument, in the alternative, in the event that the Commission is satisfied that the term of the Employment Agreement was for a period of 12 months.

[103] The Respondent submitted that assuming the Applicant does intend on relying on the aforementioned decision, it does not accept this decision is analogous to the circumstances in this matter. The Respondent distinguished the case, particularly because that decision considered amongst other things, interpretation issues arising from renewal of an employment contract, circumstances in which the employee was provided with assurances such as ongoing employment for at least five years and contract renewal if sufficient government funding was available. The Respondent submitted, and it is confirmed, that none of these issues were relevant in the circumstances.

[104] The Respondent further stated that the relevant employment contract did not contain the word "may", to confer discretion on the parties as to a decision to renew and, accordingly, it was found that there was no maximum term or 'outer limit' contract in place. The Respondent submitted that the Employment Agreement in this matter expressly provides that "[t]he parties may agree to extend the Agreement, but they are not obliged to do so" and no representations were made between the parties as to a renewal beyond the 12 month term.

The Employment Agreement

[105] In reply to the Applicant’s submissions regarding that the Employment Agreement was not for a ‘fixed term’, the Respondent agrees that the Applicant's employment was not on a true 'fixed term' basis, albeit that correspondence to the Applicant (including the non-renewal letter issued on 25 October 2019) referred to a 'fixed term contract'.

[106] The Respondent stated that the Employment Agreement was at all times a maximum term or 'outer limit' contract, which was terminable in accordance with the terms of the Enterprise Agreement, pursuant to which the Applicant was employed on a full time basis for the specified term. The Applicant's employment terminated due to the effluxion of time at the conclusion of the agreed term.

[107] The Respondent acknowledged that the Applicant relied on the decision in White v Sydney College English Pty Ltd, 28 but submitted that due to this decision dealing with a jurisdictional objection to an unfair dismissal application that was raised pursuant to section 386(2)(a) of the Fair Work Act, it was not relevant in the current proceedings. The Respondent submitted that their jurisdictional objection position in respect of section 386, is that they rely on section 386(1), rather than section 386(2)(a), in submitting that the Applicant was not 'dismissed' for the purposes of the Act. On the evidence, the 1 year term of the contract came to an end, due to the discharge of the contractual term. The detail relating to the preferred evidence, on the contract as accepted and the discussions surrounding such term, supports the one year term.

Variation of the Employment Agreement

[108] The Respondent stated that the Applicant’s Submissions assert that a variation to the Employment Agreement requires the standard elements of a contract be met, and further relies on clause 22 of the Employment Agreement, which provides that the terms and conditions of the Employment Agreement 'can only be altered in writing [and] signed' by the parties.

[109] It is accepted that the elements of a contract that were required, were met, but it is not accepted that a variation to the terms of the Employment Agreement was made.

[110] At the time the parties entered into the Employment Agreement, each understood that the term of the Applicant's employment was for a period of 12 months. The parties made this agreement verbally, and subsequently confirmed it in writing, including by the handwritten annotations which were signed and initialled by the Applicant and that this did not amount to a variation to the Employment Agreement.

[111] In addition to this, the Respondent categorically denied the Applicants allegations that the annotations to the contract were not by the Applicant due to the annotations being witnessed by two employees of the Respondent. The Respondent stated the conduct reflected the verbal conversations that the Applicant had with the Respondent regarding the term of the Agreement.

[112] In regards to the email from Ms Dobbie, the Respondent acknowledged that Ms Dobbie altered the date on the email when she forwarded it to herself and the Respondent was not aware of Ms Dobbie's actions until after the fact. Ms Dobbie provided a transparent explanation, in terms of the administrative collation of the material. In any event, the Respondent agrees with the Applicant's assertion, and it is confirmed that the content of the email is uncontroversial, and submitted that it is not applicable to the factual disputes between the parties.

Adverse action claims

[113] The Respondent stated that it acknowledged that the Applicant raised a number of perceived concerns throughout his employment, and in the event that the Commission is satisfied any of the Applicant's concerns amount to a 'complaint or inquiry' for the purposes of section 341(1)(c) of the Fair Work Act. The Respondent continued denial that the Applicant had established that any adverse action was taken against him by the Respondent, in relation to the Applicant’s allegations, as raised.

[114] The detailed submissions of the Respondent in this regard were set out. These are again considered later in this decision. The Respondent noted that the Applicant's submissions set out a number of alleged workplace rights, a number of which had not been previously raised in these proceedings.

CONSIDERATION

[115] In the decision of Liu v Compuworld Pty Ltd, 29 the application of s.351, as it relates to s.365 applications was set out. The relevance of the following extract to the current matter is the enunciation of the principles relevant to the consideration of General Protections matters and the consideration of the discharge of the reverse onus. I adopt this approach. The Decision stated:

“[20] Section 351 of the Act deals with protection against discrimination and provides that an employer must not take adverse action against a person (including an employee or prospective employee) because of attributes including the person’s pregnancy or physical disability. In relation to s.351 of the Act, the plurality (O’Callaghan and Thawley JJ) in Western Union Business Solutions (Australia) Pty Ltd v Robinson 9 (Western Union) summarised the operation of the relevant provisions as follows:

“The general operation of s 351 can be stated in the following way.

First, putting to one side whether any of the exceptions in s 351(2) apply, the Court’s task in determining the application of s 351(1) is to determine, on the balance of probabilities, why the employer took adverse action against the employee, and to ask whether it was for a prohibited reason or reasons which included a prohibited reason – see: Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32; (2012) 248 CLR 500 at [5] (French CJ and Crennan J); at [101] (Gummow and Hayne JJ).

Secondly, where adverse action is taken as a result of a decision made by an individual within a corporation, the identification of the operative reasons for taking the adverse action turns on an inquiry into the mental processes of the relevant individual: Barclay at [140] (Heydon J); Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2014] HCA 41; (2014) 253 CLR 243 at [7] (French CJ and Kiefel J); [85] (Gageler J).

Thirdly, the object of that inquiry is to determine the actual reasons. These are determined from all of the facts and circumstances and inferences properly drawn from them. In light of s 361, one would ordinarily expect direct evidence from the individual responsible for the employer’s action as to their reasons for that action, which may properly include positive evidence that the action was not taken for a prohibited reason. Of course such statements must be assessed against all of the facts and circumstances. In State of Victoria (Office of Public Prosecution) v Grant [2014] FCAFC 184; (2014) 246 IR 441 at [32], Tracey and Buchanan JJ summarised the following propositions from Barclay at 517 (French CJ and Crennan J); 542 (Gummow and Hayne JJ); 545-546 (Heydon J) and BHP at [19]-[22] (French CJ and Kiefel J); [85]-[89] (Gageler J):

•  The central question to be determined is one of fact. It is: “Why was the adverse action taken?”

•  That question is to be answered having regard to all the facts established in the proceeding.

•  The Court is concerned to determine the actual reason or reasons which motivated the decision-maker. The Court is not required to determine whether some proscribed reason had subconsciously influenced the decision-maker. Nor should such an enquiry be made.

•  It will be “extremely difficult to displace the statutory presumption in s 361 if no direct testimony is given by the decision-maker acting on behalf of the employer.”

•  Even if the decision-maker gives evidence that he or she acted solely for non proscribed reasons other evidence (including contradictory evidence given by the decision-maker) may render such assertions unreliable.

•  If, however, the decision-maker’s testimony is accepted as reliable it will be capable of discharging the burden imposed on the employer by s 361.

Fourthly, s 351(1) does not apply, even though it otherwise would have applied, if the relevant action falls within s 351(2). Where s 351(2)(b) is raised as an issue, the Court’s task involves determining whether the adverse action was “taken because of the inherent requirements of the particular position concerned”. If adverse action was taken because of the inherent requirements of the particular position, or for reasons which included such a reason (s 360), the adverse action is not prohibited by s 351(1), even though it would have been so prohibited absent the existence of such a reason.

Section 346, which was considered by the High Court in Barclay and BHP, prohibits adverse action being taken for reasons which include any of the industrial action related matters identified in paras (a) to (c) of s 346. Section 346 does not contemplate any exceptions. Section 351(1) prohibits adverse action being taken for identified reasons of discrimination. However, s 351 does contain exceptions, one of which is an exception which also revolves around the state of mind of the employer, namely s 351(2)(b).

Fifthly, and assuming s 351(2)(a) and (c) are not in issue, once all of the reasons for the adverse action are identified, the question or questions which remain to be answered are:

(1) section 351(1): whether one of the operative reasons of substance for the adverse action included a prohibited reason;

(2) if s 351(2)(b) is in issue: whether one of the operative reasons of substance for the adverse action was “the inherent requirements of the particular position concerned”.

The primary judge, and Katzmann J in Shizas v Commissioner of Police [2017] FCA 61; (2017) 268 IR 71, asked first whether s 351(1) applied and, secondly, whether s 351(2) applied. An alternative approach is to look first at s 351(2)(b), because s 351(1) cannot apply unless s 351(2)(b) does not. A third approach is to examine the state of mind of the employer and determine whether s 351 is engaged in light of both s 351(1) and s 351(2)(b). Because s 360 applies to the whole of s 351, the different approaches should yield the same result.” 10

[21] In his judgement in Western Union Kerr J also observed that:

“It is settled law that for the purposes of s. 351(1) of the Fair Work Act it is the reasons of the effective decision maker which are to be looked to in determining whether or not adverse action has been taken because of an employee’s race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin.”

[22] Sections 360 and 361 of the Act are important provisions in the legislative scheme concerning general protections. In Keep a Full Bench of the Commission made the following observations in relation to those provisions:

“Sections 360 and 361, in Div 7 of Pt 3-1 of the FW Act, make it easier than it otherwise would be for an employee to establish a contravention of the protective provisions in Pt 3-1, including s.340. Section 360 provides that, for the purposes of Pt 3-1, ‘a person takes action for a particular reason if the reasons for the action include that reason’. Section 361(1), casts an onus of proof on an employer to show that it did not take action for a prohibited reason, it says:

“If:

(a) in an application in relation to a contravention of this Part, it is alleged that a person took ... action for a particular reason ...; and

(b) taking that action for that reason ... would constitute a contravention of this Part;

it is presumed, in proceedings arising from the application, that the action was ... taken for that reason or with that intent, unless the person proves otherwise.”

It is important to note that s.361 does not obviate the need for an applicant to prove the existence of the objective facts which are said to provide the basis of the respondent’s conduct. The onus does not shift from the applicant to the respondent until the applicant establishes the elements of each of the general protections upon which it seeks to rely. It is not enough for the applicant to merely make assertions regarding these elements, they must be determined objectively. 11

[23] In Construction, Forestry, Mining and Energy Union v De Martin & Gasparini Pty Limited 12 Wigney J distilled the following principles in relation to s. 361 of the Act from the High Court Decisions in Board of Bendigo Regional Institute of TAFE v Barclay13 and Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd14

“As has already been noted, s 361 creates a statutory presumption that operates in cases where it is alleged that a person contravened s 340. Relevantly, where it is alleged that a person has taken adverse action against another person because that other person has a workplace right, or has exercised a workplace right, it is presumed that the action was taken for that reason, unless the person proves otherwise. Here, the CFMEU alleged that De Martin & Gasparini took adverse action against its employees for reasons that included that the employees had or had exercised workplace rights. Those workplace rights were the benefit of the Enterprise Agreement (a workplace instrument), and the ability to approve or not approve a variation of the Enterprise Agreement (a process under the Fair Work Act). By reason of s 361, it is to be presumed that De Martin & Gasparini took the adverse action for those reasons unless it proves otherwise.

One might be forgiven for thinking, at least at first blush, that the question whether a person took certain action for a particular prohibited reason is a fairly straightforward question. It is, however, a question which, in the context of s 340 and cognate provisions (for example s 346 of the Fair Work Act), has excited some considerable debate and controversy. Following the decisions of the High Court in Barclay and BHP Coal, however, it could now be said that the relevant principles are relatively well-settled. The key principles, in simple terms, are as follows.

First, the question is one of fact: Barclay at [41], [45], [101]; BHP at [7].

Second, the question is why the adverse action was taken: Barclay at [5], [44]. The focus of the inquiry is the reason or reasons of the relevant decision-maker: Barclay at [101], [127], [140], [146]; BHP Coal at [7], [19], [85]. More particularly, the question is whether the alleged prohibited reason was a “substantial and operative” reason for taking the adverse action: Barclay at [56]-[59], [104], [127]; or an operative or immediate reason: Barclay at [140].

Third, the test does not involve any objective element: Barclay at [107], [121], [129]; BHP Coal at [9]. To speak of objectively obtained reasons risks the substitution by the court of its view, rather than making a finding of fact as to the true reasons of the decision-maker: Barclay at [121]; BHP Coal at [9].

Fourth, the inquiry is not concerned with mere causation, in the sense that it is not sufficient that there is factual or temporal connection between the relevant protected workplace rights and the adverse action: BHP Coal at [18]-[20]. Any such connection, however, may necessitate some consideration as to the true motivation or reasons of the decision-maker: BHP Coal at [22].

Fifth, the question must be answered having regard to all of the relevant facts and circumstances and the inferences available from them: Barclay at [45], [127]; BHP Coal at [7].

Sixth, direct testimony from the decision-maker as to why the adverse action was taken is capable of discharging the burden imposed by s 361: Barclay at [45], [71]; BHP Coal at [38]. However, declarations that the action was taken for an innocent reason may not discharge the onus if contrary inferences are available on the facts: Barclay at [54], [79], [141]. The reliability and weight to be given to such evidence must be assessed having regard to the overall facts and circumstances: Barclay at [127].

Seventh, it is not necessary for the decision-maker to establish that the reason for the adverse action was entirely disassociated from the relevant protected workplace right: Barclay at [62]. 15

[24] I have applied these principles to my consideration in the present case. I turn first to consider the evidence. Given that the Respondent was not legally represented, the significance of the allegations made by the Applicant and the reverse onus in s. 361, I have set out the written statements made by the Respondent’s witnesses and their oral evidence fulsomely to ensure that the Respondent had every opportunity to present its case and to discharge the onus in s. 361 to the extent necessary.”

Was the Applicant exercising a workplace right or a protection?

[116] The Applicant submitted that he had exercised workplace rights, in regard to the pay query and the request for the Respondent to make payment of the infringement notice fine. The Respondent has accepted that the pay query constituted the exercise of a workplace right.

[117] Regarding the request for payment of the infringement notice fine, the consideration of the evidence of Ms Gregson and Ms Dobbie as compared to the evidence of the Applicant is relevant. I note that Ms Gregson’s evidence regarding assumed knowledge by the Applicant of whether the vehicle was roadworthy, was based on second hand, or hearsay evidence, in that she was reporting what she had been told by other staff who did not give evidence in the matter. Ms Dobbie’s evidence in this regard is similarly a report of a conversation with Mr Arts, who was informed by other staff about the vehicle and vague evidence about the use of pre-vehicle checks. Mr Arts did also not give evidence.

Deductions and underpayments

[118] The Respondent stated that the Applicant's Submissions further refer to a number of decisions that pertain to alleged underpayments and deductions. The Respondent denied any such deductions or underpayments and stated as follows:

•  Fair Work Ombudsman v Jetstar Airways Ltd, 30 which pertains to training costs deducted from employee's salaries. The Applicant has not alleged, and the Respondent does not accept, that there are any issues pertaining to employee deductions in this matter.

•  Murrihy v Betezy.com.au Pty Ltd, 31 which pertains to a breach of contract claim whereby an employee alleged they were entitled to unpaid commissions. The Applicant has not alleged, and the Respondent does not accept, that there are any issues pertaining to unpaid commissions in this matter. The Applicant has further relied on this decision to establish that employees are entitled to seek legal advice. The Respondent does not dispute that employees are entitled to seek legal advice.

•  Fair Work Ombudsman v Abella Travel Pty Ltd & Anor, 32 which pertains to underpayment of 'vulnerable employees' on 457 visas. Specifically, the Applicant referred to an extract in respect of two employees that were required to repay part of their salaries back to the employer. The Applicant has not alleged, and the Respondent does not accept, that there are any analogous issues in this matter.

[119] The Respondent further stated that the Applicant also simply referred to a number of other case authorities, 33 which raised adverse action claims generally. The Respondent submitted that the Applicant did not make any specific submissions in respect of those authorities, and that they did not relevantly respond to them.

Did the Respondent take adverse action against the Applicant?

Dismissal

[120] The Applicant argued he was dismissed by the Respondent (in response to exercising his workplace rights), and this constituted adverse action. The Respondent denied dismissing the Applicant’s employment. The matter in this regard turns on whether the amended contract was valid, meaning the contract of employment was for one year, or if it was invalid, and the contract of employment was for two years.

Was the Applicant’s contract of employment for one year or two years?

[121] Several versions of the contract have been provided by the Applicant and Respondent. The contract ostensibly initialled by the Applicant and signed by Ms Dobbie is in evidence.

[122] The Applicant strongly denied initialling the contract, and said that the initials (which were by way of a signature) do not resemble his signature, as present on the signature page of the document, his drivers’ license, or anywhere else. The Applicant provided minimal evidence to support the two year contract, except the repetition in evidence that he and Ms Cooper believed it to be a two year contract and they would not have moved particular gear out for a 1 year contract.

[123] The Respondent relied on an email from Ms Dotty Repu, who said she saw the Applicant initial the documentation. Ms Repu’s evidence is in the form of email correspondence sent on 20 March 2020, presumably provided in response to the Applicant’s general protections claim.

[124] The contract the Applicant ultimately signed and worked under contained the “1 year” annotation. The dispute between the parties is what that annotation’s effect is, and whether the document was ultimately initialled in confirmation.

[125] It is plausible that a genuine mistake has occurred in this instance. The Applicant considered the contract, and then wrote a lengthy and detailed email querying a great many terms in the contract, (including whether a 1 year contract was available). In doing so, he may have written on the contract. Other clauses in the contract are highlighted which were then questioned in the correspondence to Ms Dobbie. Ms Dobbie wrote a detailed response, which the Applicant replied to saying he “accepted the contract”. On the material, the Applicant, having considered the responses may have intended to accept the contract as provided to him, without amendments. The Respondent, seeing the correspondence, and marking of 1 year, considered the Applicant was accepting the amended contract of 1 year, given he himself had annotated the document, and queried the 1 year period, and not repudiated this.

[126] The Applicant had a copy of the Agreement with highlighting and the “one year” annotation written on it. However, the Applicant’s evidence was that he didn’t initial the contract, and in the F8 application, he stated that he didn’t sign it. This submission contradicts the signature on the last page of the contract, which, on the evidence appeared to be a fairly close match to the initials he used in the amendments. Further there was no direct corroborating evidence of the two year contract.

Did Respondent take the adverse action because of a prohibited reason, or reasons which included that reason?

Termination of employment

[127] The Applicant contended that his employment was dismissed because of the exercise of his workplace rights. The Respondent rejected this.

[128] In examining each of the workplace rights, regardless of whether the Applicant’s contract expired or was terminated at the Respondent’s initiative, the evidence is not persuasive, that the Applicant’s employment was terminated due to the exercise of the Applicant’s workplace rights.

[129] Ms Stonhill’s evidence was that at the time the decision not to renew the Applicant’s contract was made, she decided not to renew the contracts for three other staff due to funding concerns. This is not challenged by the Applicant, and it was raised that the position the Applicant held was not replaced.

[130] Additionally, the Respondent, on the evidence, had a genuinely held belief that the Applicant had sought and was granted a one-year contract instead of a two-year contract. If indeed the contract was a two-year contract and the Applicant was in fact dismissed at the Respondent’s initiative, the facts of the matter clearly demonstrate that this was because of confusion and a genuine mistake on the contract on behalf of the parties. The Respondent stated that there was an enquiry from the Applicant for a one year contract with reasons and the Applicant did not later mention the two year term until after the Respondent’s conclusion of the contract after the 1 year term.

Refusal of payrise request

[131] The evidence does not support that the Respondent’s refusal to grant a pay increase to the Applicant was because of his prior workplace complaints.

[132] The Applicant’s request for an increase in pay was just that: a request. There was no scope under his contract for a mandatory pay increase. There was no mandatory provision for an increase based on performance. Increases in remuneration were explicitly at the discretion of the Respondent.

[133] The Respondent is a not for profit organisation predominantly reliant on funding. I note that the Applicant was due for a pay increase under the Respondent’s enterprise agreement in July, which at the time of the request by the Applicant was imminent. I accept Ms Stonhill’s evidence that she considered the Applicant’s request and chose to exercise her discretion not to award the increase. This was not irregular at the time of the request, the Applicant had been employed less than a year, and there was no evidence advanced that a further pay increase, was due to him in relation to taking on additional duties, workload, or exceptional performance. Further, as set out, an annual pay increase from the agreement was to be applied.

[134] The Applicant argued that the Respondent took adverse action against him within the meaning of section 342(1)(a), in three predominant areas. Firstly, the denial of a pay rise and the premature termination of his employment against the contract term or the nonrenewal of that contract. Secondly, the denial of the pay rise in connection with the workplace right the Applicant exercised seeking applicable pay rates on public holidays. Thirdly, the dismissal of the Applicant being the alleged adverse action taken by the Respondent as the Applicant exercised a workplace right to raise that the employer should pay the infringement incurred whilst driving a company vehicle that was unregistered. Each of these matters are dealt with below.

Non-renewal of contract

[135] The template contract documentation containing the original two year contract formed the basis of telephone discussions with the Applicant held prior to accepting the contract, and had recorded notations by the Applicant on such, with reference to the shorter term of the contract inquiry (1 year) and ultimately was used as the basis to record the contract in place between the parties. The withdrawal of the original 2 year contract and the replacement with a fresh contract clearly setting out the new term of the contract would have been the optimum manner in which to operate. However, it is understood that the amended document was used. Where a range of contracts are being used between geographically separated parties and where there is flexibility afforded by the employees of the arrangement associated with the terms of these contracts, for example, the Applicant was afforded a later start date (in circumstances where his partner required such) than that that was nominated on the contract.

[136] The Human Resources manager, in her evidence agreed that the best practice would have been to provide a fresh contract after the discussions and agreement to a one year contract between the parties. However, the Human Resources manager’s evidence was clear that she discussed the contract with the Applicant, emphasised the contract was for one year and that after it had been discussed with the Applicant clearly, he initialled it. He had sought the one year term after he had enquired about it, on the basis that he had relayed that he wanted to ensure in that shorter period whether, his partner would like living on the remote community. The Human Resources manager had conceded that in preparing material from the file, for the purposes of providing the evidence on the contract, she had amended the date on an associated email, in forwarding that email back to her inbox. This was obviously considered as disingenuous by the Applicant. In her evidence regarding the amendment, she had noted that this was an administrative step that she had taken. She was transparent about this. This step did not undermine the contractual term, that the Respondent had not taken any associated adverse action, (because of a prohibited reason or reasons or due to the exercise of a workplace right, which included that reason) against the Applicant. That is, the evidence arising from the inquiries made by the Applicant does not provide any link with any type of adverse action related to the Applicant. The evidence did not correlate in terms of a causal link between the allegations made by the Applicant of breaches of workplace rights and the termination of employment.

[137] With regards to Ms Dobbie’s evidence in relation to the referred to administrative error, as per the date on the email, she provided the following clarification during the hearing:

“MS ARROWSMITH:  Yes, at that time.  So I'd just like to ask Ms Dobbie because it's been raised in the applicant's submissions and was not otherwise dealt with by Ms Dobbie's witness statement.  Would you like to provide some clarifying details around that document?---Yes.  Yes, I just - I wanted to note that that was my mistake, so on 24 November 2018 Lance Conway-Jones sent an email to me noting that he would chase up Glenn's paperwork.  In the end Lance also said, "Did he tell you he still only wants one year?"  I replied saying, "Sure did", and responded, "Could readvertise in August for another plumber."  On 28 October 2019 I forwarded a copy of this email chain to myself, noting it was for file.  At the time of forwarding it to myself I changed the date of my response to Lance and it - in fact it was sent on 26 November 2019.  I did not otherwise alter the contents of the email chain.

Can I just ask - again, I understand Mr Matarazzo might want to ask some questions on it as he's raised it in his submissions - the motivation behind changing the date on that email?---Well, it was actually just a complete error.  I was trying to realign the email, send it back to myself, or, you know, get a copy of it printed out, and it just looked wrong.  The top part looked wrong.  I tried to put the words back together to the left of the page and when I did that I must have changed the date.  So I recall trying to retype into the line to get it all on one side and, yes, I don't know, I was thinking 2019 and 2019 stuck in my head and - yes, that was my error.

And to confirm one more time, no other contents in that email were altered save for the date?---No.  No, no, no.  No, it was only in the part that seemed to be distorting.

THE COMMISSIONER:  But the date, for the record, is 26 November 2018?---Correct, yes.” 34

[138] In further consideration of the Applicant’s contract of employment, the contract of employment clearly indicates at the first sentence, that the employment agreement will be dependent on continued funding for the position. Furthermore, the handwritten amendment on the contract as included under status of employment reflects one year. Mr Dyson signed the original contract on 24 October 2018. The Applicant had signed it, as noted on the 16th or the 10^th, October 2018 with a line drawn through the zero to amend it to the 16^th of the 11^th month 2018. The correspondence from Ms Stonhill to the Applicant setting out the finalisation of the contract stated “I note your fixed term contract is due to conclude or be renewed on 12 November 2018”. The correspondence provided two weeks’ notice of finalisation of the contract at the conclusion of the term, but that the Applicant was not required to work out the two weeks’ notice, and was provided equivalent wages.

[139] In terms of the 12 month contract, Ms Dobbie, the Human Resources manager was cross-examined on the term of the contract, with the following exchange occurring:

“If I can take you back to your statement at number 8 where you say, "I did not retain a copy of the employment contract signed by Mr Dyson".  Can you explain that?---So Carl Dyson asked me to draw up a contract for Glenn.  He looked over it and signed it and then he actually handed the original copy straight across to Glenn and asked him to go through it and turn to item 7 and peruse it.

In number 11 in your statement you concede:

Yes, a one-year contract could be agreed, but we would only pay for fuel for vehicle relocation, no additional charges on such a short term.

You stated that?---Mm hmm.

So why are you saying there's a 12-month contract when Mr Glenn Baughen never agreed to those additional conditions you required in number 11, as you've confirmed in your statement?---It wasn't an additional requirement.  There's still relocation.  We were still going to pay reasonable relocation, it just had to be a lower amount as we were going to do it just for a year.

Yes, that's correct.  So are you saying that Mr Baughen agreed to what you put on the table?---Agreed - - -

So he agreed to only pay fuel for the vehicle relocation and he agreed to no additional charges.  So are you saying he agreed to all those things?---When he signed the contract - - -

No, no - - -?--- he agreed to reasonable relocation.

But what I'm putting to you is that he didn't agree to those specifics he wanted, so why did you make the incorrect assumption that he agreed to a 12-month period when he didn't agree to those additional considerations you were seeking?---Well, he requested the 12-month period.

Would it not be fair to say he made inquiries?---He made inquiries, certainly, and then he spoke to the general manager of housing; that was Lance Conway-Jones, and advised that that was the option he wanted to take up, and in conversation with me - when he came into my office in December he had a full conversation with me and explained his reasons - or started to explain his reasons for wanting a 12-month contract rather than a two-year period.

All right?---It was all very clear.

When I look at the employment contract - and let's go to your version in annexure RD5, it states to continue for two years and then there's a handwritten pen that says "One year".  Can you advise the Fair Work Commission who wrote that one-year term there?---I was under the impression it was Glenn that wrote it and I've been since told that it was actually his partner that wrote it.  At the time I made sure that it wasn't me and I made sure it wasn't Lance or any of his department that wrote that.  So it had come back from Glenn with that notation on it.” 35

[140] Further in relation to the contract, the Human Resources manager, Ms Dobbie was cross-examined as follows:

“MR MATARAZZO:  All right, so thank you for clarifying that, but - - -?---And that's the date I received the extra note - the extra signature, and I double-checked with what - the extra initials, and I double-checked with Glenn on that date what term he wanted.  I said to him, you know, "This has been advised by Lance.  Is that correct?"

So can you be more specific?  What do you mean by "that signature"?

THE COMMISSIONER:  Are you referring to the signature at the bottom of page 1?

MR MATARAZZO:  I'm referring you to where it's got the XG and that scribble.

THE COMMISSIONER:  So what page are you on, Mr Matarazzo?

MR MATARAZZO:  RD5.

THE COMMISSIONER:  And what page is - - -

MR MATARAZZO:  Page 33.

THE COMMISSIONER:  And page 1 of that exhibit?  So it's page 1.

MR MATARAZZO:  Yes.  Yes, so it's - - -

THE COMMISSIONER:  And you're asking about at the bottom of that page - - -

MR MATARAZZO:  No, my apologies.  Where the initials are?---What's the question, sorry?

…

MR MATARAZZO:  How did you know that that is legitimate initials of Mr Baughen?---I saw him initial it.

On what date?---On the 7th of the 12th.

Where did you see him initial it?---He was walking towards the main door of the HR office and it was at Dottie Arepu's desk - or Caroline Arepu - and he was standing and signed it in front of - or initialled it in front of her.

But you didn't see him sign it?---I saw him initial it, yes.

But you said he was standing at the door, outside of your view?---No, it's all windows and it's all very clear to see.

Did you not say that Dottie Arepu witnessed this alleged initial?---She did, yes.

On 7 December 2018?---7 December.  That's correct, yes.

I put to you that you and Ms Arepu have fabricated this document to suit your needs to rewrite history and that you doctored and tampered with this document.  What do you say to that?---Absolutely not.  That's incorrect.

So why if Mr Baughen agreed to a change of a contract, why wasn't he issued with a new, fresh document with the specifics in there, including the new starting date and the 12-month period?---In hindsight, yes, I should have probably reissued a full new contract.  With time limitations, the things that were happening at the time, I didn't do that.  I believed that when he said he wanted the one-year contract and that he initialled the one year and he put a notation on the contract saying one year and we had a full conversation about the one year, I believed that that was what he wanted.  I believed him.  He seemed very plausible.

I seek clarification from you.  You agree that he started on Monday, 19 November 2018?---I don't actually know the exact date that he started.  He was dealing with Lance at that stage over delays for the beginning there.  There was some vehicle breakdown or something.  His general manager took the absences - the contract - the date that we were expecting him to start, to my knowledge, was 12 November.

That's when you were expecting him to start?---Yes.

But when did he actually start?---I'm sorry, I just don't know.  I know that it was a few days later.

So you're now denying you don't know that he started on Monday, 18 November 2018?---I don't know that, but he could have.  He might have started on the Friday or the Thursday.  I recall there were delays in him getting there.  Some car broke down or had to overnight somewhere.  It's not always so easy to get into Maningrida.

MS ARROWSMITH:  Sorry, Commissioner, could I ask if Ms Dobbie is being accused of having said that before and now retracting it, can we just point to where she's said it, just for clarity, as well.

THE COMMISSIONER:  Yes.  Mr Matarazzo?---I believe he started two or three days later.

MR MATARAZZO:  So I put to you that this reference of one year, is not one year 52 weeks?

MS ARROWSMITH:  Sorry, can we just clarify the original point of the date before we move on to what I think is the next flow-on from that question?

THE COMMISSIONER:  Thank you.  What do you say?  What do you - - -

MR MATARAZZO:  Well, in your statement you say Glenn, at number 14, then commenced employment with the respondent on or about 16 November 2018, do you not, at number 14?---Yes.  That's correct, yes.

So you're conceding that he didn't start on 12 November 2018?---As I've said, I know he started a few days later.  Two or three days later, was my understanding.

If I can refer you to - I think it's annexure RD2.  On the bottom of page 20, in your email to Mr Glenn Baughen do you not say, "Could you look at changing the commencement date to Monday 19th, 2018"?---On page 20?

Yes, right up the top.  This is your email of - sorry, I withdraw that.

MS ARROWSMITH:  Just to be clear, I think that's an email from the applicant to Ms Dobbie.

MR MATARAZZO:  I withdraw it.  There is an email, and sadly they've left it out.  There's an email - my apologies.  I've just found it.  Apologies.  I took you to the wrong area.  The bottom of page 16 where you say - your responses are in blue.  Apologies that it's not a colour photocopy, but you say - you start with the word "Thanks" and then it goes on, "But could amend to 19 November at the latest."

…

MR MATARAZZO:  There's an email on Monday, 5 November, 5.17.  It's sort of the third paragraph down that starts with the word "Thanks".  "We would prefer for you to stick to the agreed date of November 12 but could amend to November 19th at the latest"?---That's correct.

So you concede that you wrote that, and you say that you wanted to know today because you had another candidate?---Mm hmm.

Thank you for confirming that.

THE COMMISSIONER:  So you're just asking the applicant to confirm what's been written there?

MR MATARAZZO:  Sorry?  So based on that information, is it fair to say that you asked him to start on Monday, 19 November at the latest?---No, I asked him to start on 12 November, but I conceded that if he needed a little bit of extra time, the 19th would be the very latest we'd want him to start, because we had to get on with what we needed to get on with, you know.

Okay?---So, yeah, my - I did understand that he was going to start earlier than that.

But you've just conceded in an email that he had requested to start at a later date and that you'd confirmed that as long as it was 19 November at the latest?---Correct.

So with all this, I'll call it - these are my words.  With all this confusion, my question to you is a handwritten notation that says "One year", what is the definite period?  I mean, you can see - it's agreed by everyone in society that one year is 52 weeks, so in all this ambiguity in this, even if the applicant concedes - which he doesn't; we emphasise that, but we say to you that this contract is so ambiguous it doesn't even now define the starting date and the end date.  The starting date is incorrect, it's got 12 November, and there's this ambiguous one year.  So is one year not 19 November 2018 rather than the 12th?

MS ARROWSMITH:  Sorry, can I just ask that the questions be broken up slightly so Ms Dobbie has an opportunity to answer before we move along.

THE COMMISSIONER:  Thank you.  Mr Matarazzo, there's a lot in there.

MR MATARAZZO:  Okay.  My apologies.  So the premise I'm putting to you is that you're saying this is a one-year contract.  Is that correct?---Yes.

So my question to you is when is the start date of this contract and when is the end date of this alleged 12 months' contract?---My understanding was Glenn was meant to be starting on 12 November.  I was not advised of any change of date.  I haven't got any emails from him saying that he wasn't going to be there until later.  I did hear that he was actually a few days late from starting.

But my question to you is - you're the person responsible in HR in doing up these contracts.  When is the start date and when is the end date of this one-year contract?---On the contract it's 12 November.

But you concede he was not at work on that day and he started at a later date, so the start date is incorrect, so - - -

THE COMMISSIONER:  Is it fair to say the applicant sought to vary the start date?---Not to my knowledge.  I knew that he was going to work out whether he could start between - on one of the days between the 12th and the 19th, but I can't say exactly which date he ended up starting.

MR MATARAZZO:  So on behalf of the employer my question is when is the end date of this 52-week, one-year contract?---I believed it was 12 November.

So that's a belief, but you concede he had not started work until some later time, so isn't it not feasible to say that your ambiguity and your contract is so ambiguous that it doesn't even define when the end date is supposed to be, we've got this fluid moving end date?  I mean, you can't - - -

MS ARROWSMITH:  Sorry, just confirming what the question was, because - - -

MR MATARAZZO:  When is the end date of this 12 - the employer's saying it's a one-year contract.  It's a legitimate question.  When is the end date?---My understanding was it was 12 November.

And where does it say in this contract that the end date is 12 November 2018?---It doesn't.

Thank you.  It's ambiguous, isn't it, which brings me to the next point, the famous - - -

…

THE COMMISSIONER:  - - - given that this is a general protections case alleging a breach of workplace rights and adverse action, that's why I'm just trying to understand what's arising from that, and if you are endeavouring to establish either one of those two things, this is the HR manager…

THE COMMISSIONER:  I'm just wanting to check whether there's some other question for evidence.

MR MATARAZZO:  Yes, and I'm looking for the letter of - my apologies - 25 October.  My apologies.

…

MS ARROWSMITH:  That's correct.  It's annexure IS4 attached to exhibit 6 of the proceedings.

…

MR MATARAZZO:  Yes.  Your lawyer will - my apologies.  Your representative will confirm.  There's a sentence in there that says, "Your final date for work would be Monday, 11 November."

THE COMMISSIONER:  I think, in fairness, we'll just set out what the document is.  This is a letter on Bawinanga Aboriginal Corporation letterhead.  It's dated 25 October, stated Private and Confidential, to Mr Baughen, and it's signed by Ms Stonhill, and it's in relation to, is it fair to say, the notification of the end of the contract.  Would you agree with that?

…

MR MATARAZZO:  Yes.  It says, "Your final date for work would be Monday, 11 November", as in 2019, I think.  So my question to you is if the contract was for 12 months and Mr Baughen commenced on 19 November 2018 and he was finished up on 11 November, is that not finishing him up one week before the end of the one-year period?---If the commencement date was 19 November, yes, you are correct.

…

MR MATARAZZO:  Yes.  My other question is do you recall when - the last day Mr Baughen actually worked?---The last day he was specifically at work?

Yes?---I think it was around 25 October.  I'm not 100 per cent certain, but I think it was about 25 October he came in to work.

Yes, okay?---To work the day, yes.

Did any of your line managers or supervisors advise you that the following Monday he attended work but was asked to go - you know, to not work that Monday, whatever that Monday was?  Is that your recollection?

…

MR MATARAZZO:  So Friday, 25 October 2019 - 26, was it - so it would have been Monday, 28 October?---Yes.

Is your recollection that he was paid up until Monday, 11 November 2019?---Yes.

All right, thank you.  The other questions I have - - -

THE COMMISSIONER:  Sorry, what did you put to the witness that he turned up at work?

MR MATARAZZO:  On Monday, 28 October 2019, my apologies, and the evidence was that he was asked to go home and that he was paid out two weeks' notice from 25 October to 11 November.” 36

[141] Whilst this evidence demonstrated imperfect document management, it cannot be concluded that adverse action was taken on the finalisation of the fixed term contract. The Respondent had accommodated the request of the Applicant for a later start (after the contract had been agreed and signed). All of the inquiries of the Applicant were responded to and satisfactorily addressed, as with the amended start date, apart from the payment of the infringement notice. Whist this penalty notice was not paid, the evidence of the employer did not support that the Applicant had acted contrary to any direction, policy or procedure, in terms of using that particular vehicle. His vehicle had been provided to another employee and another vehicle was made available for his use. Given no evidence was provided of the Applicant’s breach of a procedure or direction in relation to the using the vehicle, the employer has an obligation to meet the penalty payment in full, (given their responsibility for the registration of vehicles). Further, on the evidence, no connection has been made out between this infringement issue and the finalisation of the employment contract in terms of adverse action.

[142] The employer, who holds the reverse onus in a General Protections case, has discharged such to demonstrate on an evidentiary basis that they relied on the terms of the contract as agreed between the parties (the contract being for a period of one year) as the clear basis on which the Applicant’s employment was brought to an end by the effluxion of time. The Applicant and his partner were understandably frustrated with regard to emergence of the infringement notice and the employers position taken in response to that. However, the case that this brought about the end of the employment contract has not been made out. It was also not established that the end of the contract was related to the pay (or other) inquiries. The terms of the contract were exercised by the employer, to finalise the employment. In relation to the wage review enquiry, it had been explained that where the work had changed, or the scope of the job altered, it was within the discretion of the CEO to review the position. Neither of those issues had been made out, in relation to the Applicant’s work or job to provide for a pay adjustment. However, the wage increase under the agreement applied.

Infringement notice

[143] In further regard to the infringement notice incurred by the Applicant in driving an unregistered work vehicle, the HR manager provided additional evidence at the hearing, in that she recommended that employees download “an App” to check prior to driving a work vehicle as to whether it was registered. She could not point to any company policy or work instruction to this effect.

[144] It is however noted that no connection can be drawn on the evidence between the employer’s requirement for the Applicant to pay all or part of the infringement notice and his termination. Whilst there was a dispute over the version of the contract that was applicable, on the evidence, the contract between the parties, as a result of the discussions and the confirmations on the document, and supporting evidence was agreed as a one year term between the parties.

[145] The Applicant enquired about the one year contract in prior discussions (with associated reasons for doing so) and relocation expenses and notations were made on the contract, commensurate with a one year contract. Reduced relocation expenses were also discussed and actioned. It is acknowledged that the contract management was not perfect between the parties, in that the employer did not issue a new contract after the initial document was provided. This amended contract was used rather than being replaced with a clean copy between the parties.

[146] The evidence on the amended contract has been attributed weight, that is the parties had discussed the reduction of the contract to one year at the Applicant’s initiative, and its acceptance by the Applicant. The parties, in operational terms as well, were aware that it was to be a one year contract, and this was supported by the email attached to the CEO’s statement of evidence. There was no substantial supporting evidence of the Applicant’s, except for he and his partners repeated reference in their evidence to a 2 year contract. The argument was raised by the Applicant regarding the contract being finalised short of one year, given that after the agreement of the period of the one year, the employer had agreed to allow the Applicant a later start to allow the Applicant’s partner to receive some medical treatment. This flexibility was provided but the contract was not revisited to adjust the finalisation date.

[147] The Applicant argued that given the delay in the commencement of the contract, it was finished on an earlier than one year. No adverse action can be drawn from this, as the delay in commencement was granted and arrived at, after the initiation of the contract. The circumstances must also be balanced with the employer, on notification of the finalisation of the work, allowing the Applicant to finish the contracted work two weeks prior, to allow the Applicant and his partner to pack and re-locate. The Applicant was not required to attend work and was paid. It must be noted that in some of the Respondent’s witnesses’ evidence, there were some comments made with regard to the Applicant’s partner’s involvement with and on behalf of the Applicant in pursuing matters, in particular the payment of the infringement notice. The comments were disrespectful and unnecessary. It is however noted that by the Applicant’s partner taking up the pursuit off the payment of the infringement penalty, this did not dismiss the inquiry. However, no connection between the inquiry and any adverse action on the end of the employment was not made out.

[148] It is understandable that the Applicant and his partner were aggrieved at incurring an infringement notice and associated expense of more than $800. The infringement was incurred through no fault of the Applicant. The requirement to register and insure vehicles and make them roadworthy was the clear obligation of the employer. Work vehicles that did not meet these standards should not have been provided for use for employees. The Applicant had been given the vehicle by the housing department to drive for work purposes. He was not aware that the vehicle was unregistered.

[149] The evidence of the workshop manager Ms Gregson was that she was responsible for the registration of all work vehicles. Her evidence was that this vehicle was not registered, and she considered that it was in need of repairs and unroadworthy at the time. However, she stated that department managers held their vehicles in their area and that this vehicle had been held in the housing yard. No evidence was provided that the vehicle was marked in any particular way so that it would be obvious to an employee that it was not registered and unroadworthy. The evidence was that the Applicant had been provided with this vehicle to drive and this evidence was not challenged.

[150] There was a vague allegation by the Applicant that the employer had somehow orchestrated the police to stop the Applicant near the worksite (whilst he was driving the unregistered vehicle), therefore causing him to incur the infringement. No evidence demonstrated that the employer, (allowing for access to an unregistered vehicle), had organised the circumstances.

[151] In relation to the infringement notice, Ms Dobbie was cross-examined as follows:

“MR MATARAZZO:  Thank you?---I don't know why the police stopped Glenn that day.  I know that we regularly had vehicles stopped all over the community, and I frequently had to deal with other staff whose own private vehicles were issued with similar infringement notices for not being registered.  That's a very frequent occurrence in Maningrida.  I don't know why they stopped him that day.

Did it occur to you that maybe somebody would have tipped off the police and there may have been some collusion?---No, it did not occur to me at all.  No, not at all.

So you've conceded that it's the responsibility of the line managers to ensure the vehicles are registered, so why should Mr Baughen even have to pay half of it?---I don't know the circumstances of that particular infringement notice, but I would say if I get into a vehicle I'm responsible for my own - ensuring that the vehicle's registered.  Everyone can get the app on their phone.  It's a very simple process to double-check before you hop into any vehicle.  That's just - that makes sense to anyone, that they would check that before they got into a vehicle.

Who owns - - -

THE COMMISSIONER:  But is that the protocol, the expectation that an employee prior to getting into one of the company vehicles should check the registration plate on the vehicle to ensure that it's registered?---We have had times where we've tried to encourage staff to make sure that they do pre-checks on all vehicles, and one of the things that has been suggested numerous times is just double-check that you are in a registered vehicle.

MR MATARAZZO:  Has that formally been put to Mr Baughen in advance?---Well, I don't know what the situation - I really had very little to do with that particular instance.

THE COMMISSIONER:  But this is covered in a number of paragraphs at page 7 - I think I'm still in your witness statement.

MR MATARAZZO:  Yes.

THE COMMISSIONER:  Yes?---Yes.

So as I understand, you do have an awareness of it.  There was a discussion?---I gained an awareness well after the whole event and over - - -

All right, but at that stage it's October 2019 when you've had the conversation with Mr Arts and you're drawing some conclusions that the applicant, you think, would not have wanted to tell his partner about this, he would have been concerned about it, and that's probably why he was worried about coming into the corporate office?---Mm hmm.

Why would you say that?  I mean, my view is that perhaps you and Mr Arts might have been more concerned about it, that "We've put an employee into an unregistered vehicle, which is the responsibility of the employer", and it's - I'm not hearing that any employee - any person who's saying it is the responsibility of the employees to pay for the registration of work vehicles?---I don't think anyone wanted the employees to pay for the registration of the work vehicle.

Well, have I got it wrong?  I thought the employer said, "We're not paying for it, but if you pay half" - is that wrong?  Is that what was put to the applicant?---My understanding was Hank wanted to have a conversation to find out what the actual events were that led up to that.  I don't know whether he was going to end up paying the other half or not.

Well, in your statement at 47(d) - and correct me - this is the whole point of cross-examination - if I have this wrong - and you are repeating, as I understand it, a conversation where Mr Arts said to you, at 47(d), that he was willing - I'm not entirely sure if he's - as I understand it at (d) he was willing to pay half of the infringement notice.  So that's Mr Arts, as I understand, but that he thought Glenn had to be partially responsible for his own safety as he would have had to have undertaken a vehicle pre-check requirement, and he should pay the other half?---That was Hank's take on the whole situation.

MR MATARAZZO:  And did you support that position of Hank?---No.  Not entirely, no.

So who has paid for this infringement notice, do you know?---No, I don't know.

And why did the employer not pay it?---That wasn't my decision.  I don't know.

Would it be fair to say that this was another entrapment process to try and make Mr Baughen look like a terrible employee so you can conveniently say, "Well, we're not renewing your contract.  You even get stopped by the police driving unregistered vehicles on top of everything else that happened in the year, including you - - -"

THE COMMISSIONER:  I can't rely on answers when there is five, you know, matters in the question.

MR MATARAZZO:  Okay, I'll break it down.  Apologies.  So was this an orchestrated attempt by the employer to make Mr Baughen look bad, that he got an infringement notice from the police?---No, I don't believe so.  I don't think we've got any control over what the police do.

But you do concede that there was a new plumber employed in late September 2019, and was Mr Baughen directed to give his vehicle to the new plumber?---I don't know.  I'm not familiar with that part of the - no, I don't know.

So when you employed the new plumber you're saying you weren't involved in discussions about what vehicle the new plumber got?---No, not at all.

So who deals with those matters?---The manager of that department.

So did Hank tell you that Mr Baughen only had this vehicle for some days because it was allocated to him but - well, did Hank - my apologies.  I'm not sure of his surname.  He did he provide - - -?---Arts.  Arts.

Arts.  Yes, my apologies?---No, I don't - no, I don't actually recall that coming up.

THE COMMISSIONER:  Ms Dobbie, isn't the registration cost of vehicles just part of the expense for the employer of doing business?---The registration of the vehicle, yes.

So why was half of that - why was the applicant asked for half of that with this infringement?---My understanding was it was the infringement notice he was asked for half of, not the registration of the vehicle.

Right, but had the vehicle been registered then the - I mean, do you see it differently, perhaps, if there was a speeding infringement as opposed to - - -?---Yes.

So that's of some direct fault, perhaps, of this employee - well, not perhaps direct fault - and to make the record clear, there is no speeding fine, the employer's not at - but if an employee was to speed and the police give an infringement for going over the speed limit, then would you see that differently to an infringement for registration?---Yes.  I can see the difference there, yes.

So is it a reasonable assumption that an employee getting into a work vehicle that as I understand it had been allocated to him, would assume it's registered?---I would hope that it would be registered, but I don't know what the circumstances of this particular day were, or the allocation of that vehicle, yes.

Is it reasonable that this is an HR issue?  This is a human resources issue, this particular - when Mr Arts spoke to you and said, "He's got an infringement.  He hasn't come in to speak to me about it.  I'm going to ask him to pay half", isn't that within the domain of the human resources department?---That decision had already been made.  That wasn't a query that was asked of me.  My opinion wasn't sought.

Well, did you provide it?  Did you say?---I recall saying to Hank that, "You've got to find out a bit more detail about what was happening, why he ended up in an unregistered vehicle", and, yes, I do think that if he was assigned it and told to use it and people did that in the knowledge it was unregistered, yes, of course, the company should pay.” 37

[152] The employer had an obligation to register the vehicle and an obligation to pay the infringement notice that was incurred through no fault of the Applicant. Payment of the infringement notice for the unregistered vehicle was clearly a requirement for the employer to meet, and it is recommended that the employee be reimbursed. The evidence was that the employer wanted to meet with the Applicant to discuss such. That having been said, the evidence did not draw a connection between the Applicant requiring the employer to meet the obligation to pay this infringement and his termination of employment. The employment ended by the effluxion of time under the contract.

[153] The CEO provided evidence that the Applicant’s position was subject to funding. This was relevant to the end of the employment contract. This funding consideration was also set out on the contract from commencement. Whilst the evidence was not specific, regarding the exact grant and funds allocated for the remuneration for this particular position, the evidence by Ms Stonhill regarding the management of over 40 different grants to underpin the operation of the residential settlement and the associated workforce was comprehensive and persuasive.

[154] The evidence of Ms Stonhill, the CEO, overseeing the range of grants was that the ‘Need to Breathe’ funding was anticipated to enable the employment of two plumbers to undertake increased housing construction on the remote community. However, whilst one plumber was employed to undertake separate work, the evidence was that it became clear this funding did not occur as anticipated, until much later after the cessation of the Applicant’s contract.

[155] Mr Matarazzo provided detailed cross-examination of the CEO and the Human Resources manager regarding the connection between the particular funding and the employment of the Applicant. It is understood that Mr Matarrazo was not satisfied with the lack of detailed knowledge provided by the witnesses in response to his funding questions. However, a negative inference cannot be drawn from the lack of specific detail in relation to each of the 40 individual funding contracts (and the drawdown stages and particular uses for each one) in connection with the Applicant’s dismissal. It was clear that the particularised questioning by the Applicant’s representative, in relation to each of these grants, came as a surprise to the CEO and she was not prepared (on her understanding of the Applicant’s case) with this level of detail. The Respondent argued that the Applicant’s contract provided a clear right for the employer to finalise the employment at that particular time and there was no association between any payment inquiry on the basis of wages or the infringement notice linked to the finalisation of the contract which ended in accordance with the period of one year, being the agreed term between the parties. No weight is attributed to the adverse action argument, that the contract ended earlier than the 52 weeks, on the basis that the employer had afforded a later start to the Applicant to accommodate his emergent request.

[156] In summary terms, the Applicant in this matter argued that he had made inquiries regarding the appropriate payment for public holidays worked, had questioned the housing accommodation that had been provided to him and the basis for the associated electricity charges and had queried the provision of a pay increase. In connection with these matters, the Applicant alleged that he had been subject to adverse action, in the form of having his employment contract unilaterally reduced to a one year contract.

[157] The representative on behalf of the Respondent refuted that any adverse action had been taken in response to any one of these inquiries. It was not alleged that any of these inquiries by the Applicant were not legitimate, and it was set out that timely, appropriate and satisfactory responses were provided in relation to each of the inquiries and that there was no basis to substantiate them as breach of workplace rights or to make any connection to any adverse action taken in relation to any of these matters.

[158] The Applicant had argued that in terms of the alleged adverse action, (the finalisation of the employment contract after one year and non-payment of the infringement notice), in some way corresponded to other inquiries that had previously been made. The matters raised that the Applicant argued, demonstrated a clear link between the exercise of workplace rights and the adverse action, were each satisfactorily dealt with, by the Respondent. A case of adverse action on any ground related to the exercise of any of the workplace rights or otherwise referred to, has not been made out.

[159] However, it is understandable that the Applicant is aggrieved with the Respondent’s response to the non-payment of the penalty associated with the infringement notice. The employer as stated should take responsibility for this penalty payment, and reimburse the Applicant. Further, this application may have been avoided by a clearer and more careful contract and document management by the Respondent.

[160] The mitigating circumstances are recognised in relation to this employer operating a remote community site, where discussions regarding the contract are often held over a number of weeks, when parties are speaking by telephone, without the particular contracts in front of them and they are at particular stages of the negotiation and associated notations are made on the contract. Associated arrangements were concurrently being made about attendance at the site and moving into accommodation. All of these matters add to the complexity of the management of these contracts. The employer had demonstrated their aim of providing flexibility with the arrangements.

Public holiday payment

[161] In relation to the Applicant’s inquiry on the payment for public holidays, Ms Dobbie’s evidence regarding this was as follows:

MS ARROWSMITH:  Apologies.  That issue you said was resolved after it was raised.  Is that correct?---Yes.  So we worked out that because of Fridays they were all being overpaid for the public holidays, it basically evened out, or they actually ended up with a little bit more than they should have over the year, but we changed the whole system just after that to reflect eight-hour days and six-hour days for the housing department because the preference for them was to work four eight-hour days and one six-hour day.  So our public holidays now reflect that as well.

Understood.  So after that was dealt with, I think it's around 24 May, did you think of this again, this issue?  You've said that it was resolved as a broader issue, but did you think of it in the context of the applicant again beyond that time?---Not really, no.

So you considered the issue to be resolved?---Yes.  I never heard anything more from him.  He was going to seek advice.  I never heard that that came back that we were doing anything incorrectly or that that was going to cause any problems for the future, so - - -“ 38

CONCLUSION

[162] As set out in the reasons, the circumstances of this matter do not align with the facts of the case of Downes v The Uniting Church in Australia Property Trust (Q.), 39 as referred to by the Applicant.

[163] The Applicant’s contract was not unilaterally finished, and the remainder of the contract was paid out. In contrast to Downes, the Applicant’s contract finished due to the anticipated effluxion of time, as per the contract and as is set out in the detail in the decision, the Applicant was permitted two weeks’ notice of paid time without the requirement to work, to accommodate the organisation of his belongings for relocation.

[164] Whilst some time has been devoted in the hearing and the submissions in this case and the evidence of the Applicant to endeavour to muddy the waters as to the terms of the contract, the evidence was clear that agreed contract terms were founded between the parties at the outset and were not varied after the terms that were agreed. The Applicant has only argued ambiguity well after the agreement was made, and argued a preferred construction according to the terms of ‘contra preferentim’ and has cited Fraser v ACT for Kids. 40 In submitting this argument of a ambiguity, allegations of introducing false annotations to the contract were made against the Respondent. In support of the annotations and contract of one year term that was made between the parties the Respondent provided witness evidence in relation to the verbal discussions, email evidence and corroborating evidence, regarding implementation of the terms associated with the one year contract, being the length of the contract, the relocation costs associated. In contrast, the Applicant has not provided supporting evidence in relation to a two year contract.

[165] As set out in the reasons, the contract was provided originally as a two year contract. The evidence demonstrated that the Applicant enquired about a one year contract provided reasons as to why a one year contract was sought, made notations to that effect. The notations were later initialled, and the contract as amended was signed; a verbal agreement was reached, a written agreement was reached, corroborating evidence in terms of the reduced relocation costs were discussed consistent with a one year contract and the contract was confirmed in clear terms, on the amended basis of one year. Email evidence supporting the one year contract was persuasive, even taking into account the transgression Ms Dobby identified on the altered date on the email, as part of the email trail she had forwarded to herself for collating the records in relation to this case.

[166] It was conceded by the Respondent that the contract was not a true fixed term contract, but a maximum term or an outer limit contract and the Applicant was not dismissed but as pre-organised between the parties prior to taking up his position and the accommodation with the employer, the contract had been agreed for one year and then finished on the completion of the one year on the provision of notice. 

[167] In the alternative to the effluxion of time argument for the end of the contract. With regard to the renewal of the contract after that term, the employer held a discretion in relation to the exercise of a renewal, as indicated by the use of the term may agree. No mandatory terms for an extension for a lengthy period or a safety net in relation to funding was applicable. 41

[168] The series of alleged breaches of workplace rights have been detailed in the decision proper. Some of these alleged contraventions were introduced during the proceedings such as the implementation of the Christmas closure and the denial of work during that time. In response to this inquiry, the Applicant quickly organised for the Applicant to work during that period and not be prejudiced as a result of the employer’s requested closure period.

[169] In relation to the further allegations of contraventions of workplace rights that lead to adverse action, whilst these are referred to below, they have not been made out as the employer was immediately responsive to these inquiries. The inquiries will seem to be acceptable, routine and regular, and the response of the employer was made without any adverse action and predominantly matters were resolved in the Applicant’s favour, such as the resolution of the accommodation query and the Applicant remaining in the preferred housing for the period of the contract. The prompt resolution of the public holiday payment matter has been detailed and was resolved in the Applicant’s favour along with other employees. No adverse action was attributed to the Applicant in relation to this or the tool allowance matter.

[170] In regard to the allegations of deductions and underpayments, the Applicant referred to a series of cases, the application of some are unclear. The Applicant has not made out a clear workplace right for the payment of the infringement penalty associated with driving an unregistered vehicle. Whilst there was competing evidence regarding the provision of this vehicle, the evidence in regard to the employer witnesses was not cogent or consistent on the policy in regard to the storage or the provision of this unregistered work vehicle from the site. The evidence was not persuasive regarding possible pre-vehicle checks and it was clear it was the responsibility of the employer regarding the registration and insurance of the vehicle. The consideration of this matter has been set out in the body of the decision. The circumstances in relation to this matter are not analogous to those matters of payments or deductions as cited in the case authorities referred to by the Applicant. What is clear, is that the Applicant in terms of his employment, was not subject to associated adverse action. However, it has been noted that the infringement penalty warranted remedying by the employer, in terms of reimbursement. 42

[171] A pay increase was not provided, in response to the Applicant’s inquiry, but the Applicant was awarded one as per the terms of the Enterprise Agreement that related to the contract. Further inquiries about accommodation and electricity were met and resolved in the favour of the Applicant, as was the inquiry in relation to the public holidays payment that was resolved for the Applicant and the other employees in the same matter and the employer conceded anomalies in the payment and remedied such with the provision of additional paid hours. Such inquiries on the evidence, were regularly received from employees and responded to in the course of management of employment terms and accommodation circumstances as related to the work of this nature. The contract was finalised in accordance with the terms and reasons as set out on the contract. No breach of a workplace right or entitlement, on the evidence was made out in relation to any of these ordinary employment inquiries. Nor was any associated with adverse action. The employer has discharged the reverse onus of proof with regard to the contract finishing in accordance with the terms available.

[172] The nature of the dismissal dispute and contraventions relied on, in terms of the provisions of the Act, evolved during the course of the pleadings.

[173] It is not accepted on the evidence that the Respondent took adverse action against the Applicant in relation to the various allegations of contraventions of workplace entitlements. However, the Respondent has presented that if the onus was to shift to the Respondent, in response to the allegations of adverse action, they have in terms of the evidence, discharged that no related adverse action occurred. In relation to the outstanding infringement penalty, the employer stated they were endeavouring to have further discussions on this matter. The employer argued that the Applicant had knowingly taken the unregistered vehicle. The evidence was not brought to conclusively confirm such. It was argued that this had been an expense incurred on behalf of the employer, in connection with the work. These tests were not clearly made out. However, it was demonstrated on the evidence that the contract was finalised on the basis of an effluxion of time, in accordance with the term of the contract of one year and not in association with any of the allegations as raised by the Applicant.

[174] The application made pursuant to section 365 has not been made out and is therefore dismissed.

[175] I order accordingly

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<PR733817>

 1   Ryan Zivkovic v Auscold Logistics Pty Ltd [2016] FWC 5542 at [9]

 2   [2014] FWCFB 8941

 3   General Motors-Holden’s Pty Ltd v Bowling (1976) 51 ALJR 235 at 241 per Mason J; approved in Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 290 ALR 647 at [59] and [62] per French CJ and Crennan J and at [104] per Gummow J and Hayne J

 4   Ibid at [8] to [15]

 5   Hodkinson v Commonwealth (2011) 207 IR 129 [131]; Devonshire v Magellan Powertronics (2013) 231 IR 198 [63]

 6   Harrison v In Control Pty Ltd (2013) 273 FLR 190 [63]; citing Jones v Queensland Tertiary Admissions Centre Ltd (No 2) (2010) 186 FCR 22 [57]

 7   (2014) 242 IR 1

 8   Ibid, [626]

 9   [2014] FWCFB 8941 at [12] citing Construction, Forestry, Mining and Energy Union v Coal and Allied Operations Pty Ltd (1999) 140 IR 131 at [161]-[162] per Branson J; Rojas v Esselte Australia (No. 2) (2008) 177 IR 306 at [49] per Moore J; Construction, Forestry, Mining and Energy Union v BHP Coal and Steven Rae [2010] FCA 590; Jones v Queensland Tertiary Admissions Centre (No. 2) (2010) 186 FCR 22 at [10]

 10   [2017] FCA 1046

 11   (2012) 248 CLR 500

 12   (2014) 253 CLR 243

 13   [2017] FCA 1046 at paras 295 – 303

 14   Paragraph [74] of the Applicant’s outline of submissions.

 15   HCA 8, 101 CLR 298.

 16   Witness Statement of Rachel Dobbie at [11]

 17   Ibid at [20] - [21]

 18   Construction, Forestry, Mining and Energy Union v Pilbara Iron Co (Services) Pty Ltd (No 3) (2012) 64 AILR 101-659; [2012] FCA 697 at [64]

 19   Trevena v Thiess Pty Ltd [2016] FCA 468 and Crawford v A Halid & J Memedovski t/a Goodys Charcoal Chicken [2017] FWC 1937

 20   Environmental Group Ltd v Bowd [2019] FCA 951 at [128] referring to Shea v TRUenergy Services Pty Ltd (No 6) (2014) 242 IR 1; 314 ALR 346; [2014] FCA 271 at [625]

 21   (1996) 138 ALR 129 (Victoria).

 22   Borg v Victoria University [2015] FCA 252 [53] to [55]; Crawford v Steadmark Pty Ltd (No. 2) [2015] FCCA 2697

 23   [2016] FCCA 1722.

 24   [2013] FWC 8890.

 25   Ibid.

 26   [2016] FWC 5052.

 27   [2013] FWC 7996.

 28   [2010] FWA 7644.

 29   [2020] FWC 2569, at [20] to [24].

 30   [2014] FCA 33.

 31   [2013] FCA 908.

 32   [2019] FCCA 3262.

 33   [92] to [138] of the Applicant's Submissions, dated 10 February 2021.

 34   Paragraph 1636 to 1639 of the transcript.

 35   Paragraph 1360 to 1371 of the transcript.

 36   Paragraphs 1379 to 1492 of the transcript.

 37   Paragraph 1513 to 1544 of the transcript.

 38   Paragraph 1613 to 1615 of the transcript.

 39   [2013] FWC 8890.

 40   [2016] FWC 5052.

 41   Papalia v Co.As.It. - Italian Assistance Association [2013] FWC 7996.

 42   See Fair Work Ombudsman v Jetstar Airways Ltd [2014] FCA 33; Murrihy v Betezy.com.au Pty Ltd [2013] FCA 908 and Fair Work Ombudsman v Abella Travel Pty Ltd & Anor [2019] FCCA 3262.