Adverse action case; employee of independent contractor by principal

This is a reasonable lengthy extract from a recent Federal Court decision dealing with a general protections case  involving allegations that various instances of adverse action were perpetrated upon an employee of an independant contractor because of the exercise of workplace rights and is an excellent analysis of the legal principles which apply to adverse action and the exercise of workplace rights in particular.

“WORKPLACE INSTRUMENT

114    “Workplace instrument” is defined by s 12 of the FW Act as meaning an instrument that:

(a)    is made under, or recognised by a workplace law; and

(b)    concerns the relationships between employers and employee.

115    The applicant pleads that the following standard operating procedures (SOPs) were “workplace instruments”:

(1)    The Traffic Management Plan and Traffic Rules;

(2)    The Isolation and Tagging SOP; and

(3)    The Work Inspections SOP.

116    The respondent denied that the any of these instruments were “workplace instruments” for the purposes of s 12 of the FW Act.

117    It is common ground that the CMSH Act and the Coal Mining Safety and Health Regulations 2017 (Qld) (CMSH Regulations) are “workplace laws” within the meaning of the FW Act.

118    Section 42(d) of the CMSH Act provides that the site senior executive of the coal mine must develop and implement a safety and health management system for all persons at the Mine. Section 41 of the CMSH Act prescribes an obligation on the operator of a Mine (in this case, BMA) to ensure that the safety health management system is put in place. Regulation 6 of the CMSH Regulations sets out the basic elements of the safety and health management system, namely:

(1)    Risk identification and assessment;

(2)    Hazard analysis;

(3)    Hazard management and control;

(4)    Reporting and recording relevant safety and health information and data.

119    Section 14 of the CMSH Act provides:

14 Meaning of standard operating procedure

“standard operating procedure” at a coal mine is a documented way of working, or an arrangement of facilities, at the coal mine to achieve an acceptable level of risk, developed after consultation with coal mine workers.

120    Further, reg 10 of the CMSH Regulations provides a detailed procedure for the consultation and development of standard operating procedures. Sections 39 and 43 of the CMSH Act bind coal mine workers to comply with the safety health management system, put into practical effect by the SOPs.

121    In relation to the Traffic Management Plan and Traffic Rules, reg 76 of CMSH Regulations provides as follows:

76 Using mobile plant

(1)     A coal mine must have a standard operating procedure for using mobile plant.

(2)     The procedure must include ways of minimising risks from the following—

(a)     light and heavy vehicle interaction;

(b)     overtaking and parking vehicles.

(3)     The procedure must have regard to the design and construction of the mine’s roads.

(emphasis added)

122    Material aspects of the Traffic Rules include:

Positive Two-Way Radio Communication

17     Positive two-way radio communication requires contact between two or more vehicles (or mobile equipment), to clearly communicate the intentions of each driver or operator

….

25     Traffic control and road signs must be followed at all times.

Overtaking

28     No overtaking of vehicles or mobile equipment is permitted in the MIA, Coal Handling Preparation Plant (CHPP) and Workshop Areas.

29     All overtaking and passing manoeuvres require positive communication with the exception of:

a      Heavy mobile equipment overtaking Graders with GET engaged and performing road maintenance if safe to do so at a maximum speed of 30 km/hr.

b    Road maintenance operations with less than 200 meters clear vision in both directions is deemed to be not safe to overtake without positive communications.

123    In relation to the Isolation and Tagging SOP, the CMSH Regulations requires pursuant to reg 78 that:

78 Isolating and tagging procedures

(1)     A coal mine must have a standard operating procedure for the following—

(a)     controlling the risk of an unplanned release of energy from plant, including positively isolating the energy source;

(b)     if an electrical or mechanical energy source is positively isolated—testing for zero potential;

(c)     taking plant out of service;

(d)     returning plant to service.

(2)     Without limiting subsection (1) , the standard operating procedure may provide for the use of danger, isolation, operational, out of service, personal and restriction tags for particular circumstances.

(3)     If the safety or health of a person is directly affected by the operation or non-operation of plant, the procedure must also provide for the person to personally control, by attaching a danger tag or lock to the plant, the plant’s change in status from non-operational to operational.

(4)     For subsection (1) (a) , the method for positively isolating the energy source for plant provided for in the standard operating procedure must—

(a)     for plant that is electrical equipment—be a manually initiated operation that—

(i)     isolates all active power conductors of the plant being isolated from the electricity supply; and

(ii)     prevents unintended re-energisation, including re-energisation through inadvertent operation of the plant or component failure; and

(b)     for other plant—be the operation of a manually operated device that—

(i)     is installed in the energy supply for the plant and, when operated, isolates the plant from its energy source; and

(ii)    requires a manually initiated operation for the supply of energy to the plant to be resumed; and

(c)     require the isolation device be clearly marked as being the positive means of isolating the plant.

(5)     In this section—

“isolation device” means—

(a)     for plant that is electrical equipment—the device used manually to initiate the operation mentioned in subsection (4) (a) ; or

(b)     for other plant—the device mentioned in subsection (4) (b) .

124    The first page of the Isolation and Tagging SOP provides:

STANDARD OPERATING PROCEDURE

BMA Coal SOP ISOLATION AND TAGGING

Document Owner: Site SSE

Coal Mining Safety and Health Regulations 2017

Section 78

This SOP has been separately adopted at each of the following mines, as that mine’s SOP. This followed separate risk assessments and consultations with a cross section of workers at each mine, incorporation of feedback and technical inputs (if applicable), decision of any non-consensus matters by each mine’s SSE, and finally endorsement of the final SOP by each mine’s SSE – each in accordance with the requirements of s10 of the CMSH Regulation.

125    Notably, the Isolation and Tagging SOP was implemented at the Daunia and Goonyella Riverside Mines.

126    Key aspect of the Isolation and Tagging SOP relating to this case include:

  1. Out of Service tags will be primarily yellow and use the standard hazard warning symbol (black exclamation mark inside a black triangle) on both sides have the words “OUT OF SERVICE” and “DO NOT OPERATE”.
  2. Out of Service tags are applied to faulty or unsafe equipment to warn personnel of a potential hazard or to prevent further damage to equipment.

  1. Out of Service tags prohibit any person from attempting to operate equipment and must be placed as close as practical to any operational controls and on any isolation points until the equipment has been deemed fit for use.

  1. Out of Service tags must only be removed by an authorised person who has carried out repairs, maintenance or inspected the equipment and deemed the equipment in a condition fit for use; Tags must be destroyed and disposed of when finished with.
  2. Information tags will be green with a primary worded message of “INFORMATION TAG”.
  3. Information tags are used to alert personnel of important information, or convey a safety message. They must be located in a conspicuous location.
  4. Information contained on this tag must include who the tag was placed by, the equipment it relates to, the date and time the tag was placed and information detailing why the tag has been placed. Information tags must remain legible for the life that they are fitted, e.g. laminate the tag.
  5. This tag is not intended to prevent operation of the equipment and must not be a substitute for any other tag.

127    In relation to the Work Inspection SOP, the CMSH Regulations requires pursuant to reg 6 that:

Basic elements

A coal mine’s safety and health management system must provide for the following basic elements—

(a)     risk identification and assessment;

(b)     hazard analysis;

(c)     hazard management and control;

(d)     reporting and recording relevant safety and health information and data.

128    The applicant submitted that the SOPs clearly formed part of the mandated safety and health management system by virtue of s 62(5)(d) of the CMSH Act. However the respondent submitted it did not necessarily follow that every policy, procedure or manual developed by an employer to comply with its obligations under those workplace laws (including the relevant SOPs) constitutes a “workplace instrument” within the meaning of s.12 of the FW Act. In particular, the respondent submitted that the relevant SOPs were not “concerned with the relationships” between employees of BMA and BMA itself. Rather, the object of the SOPs was that of mine safety by the imposition of certain obligations and processes.

129    On a plain reading the CMSH Act and CMSH Regulations expressly require the development of the SOPs. I note in particular that a person failing to meet these requirements, and failing to make available a copy of the safety and health management system, will find themselves subjected to a penalty under the CMSH Act. In addition, I note the detailed consultation process for the creation of SOPs and requisite consultation regarding the safety and health management system.

130    I am satisfied that the relevant SOPs are made under, or recognised by, a “workplace law”. They are objectively “given legal effect or legal life”; Barnett v Territory Insurance Office (2011) 196 FCR 166 at [31]-[32]. I am satisfied that the SOPs meet the first limb of the definition of “workplace instrument”.

131    In relation to the second limb of the definition, the respondent submitted that the SOPs did not “concern” the relationship between an employee and employer, but rather merely regulated mine safety. The respondent relied on the decision of Logan J in ALAEA v Sunstate Airlines (Qld) Pty Ltd (2012) FCR 306 in which his Honour found that the Civil Aviation Regulations 1988 (Cth) were not a “workplace law” because the objective of that regulation was not the relationship between employee and employer. Moreover, Logan J considered that those regulations merely regulated air safety.

132    In addition, relying on ALAEA at [34] the respondent submitted that, because “workplace instrument” is not defined by reference to occupational health and safety matters, the relevant SOPs were not workplace instruments.

133    I am satisfied that the SOPs “concern” the relationship between employers and employees as submitted by the applicant, including by prescribing the way employees perform duties for the employer, and directions the employer may give to the employee regarding the performance of those duties. The legislation and regulations before me differed from those before Logan J. The applicant submits, in my view correctly, that these instruments are made in consultation with employees and employers through an extensive process of which the employee and employer are subsequently bound to follow.

134    I am satisfied that the SOPs are workplace instruments within the meaning in s 12 of the Fair Work Act.

ADVERSE ACTION

Did BMA take adverse action against Mr Meikle within the meaning of s 342 Fair Work Act?

135    The applicant complained that BMA took adverse action within the meaning in s 342 of the FW Act against Mr Meikle by excluding him from the Mine, resulting in the refusal to make use of services offered by WorkPac under Item 3(d).

136    Section 342 of the Fair Work Act sets out circumstances in which a person takes adverse action against another person. Materially, Item 3 provides:

Adverse action is taken by…

A person (the principal) who has entered into a contract for services with an independent contractor against the independent contractor, or a person employed or engaged by the independent contractor:

If…

The principal:

(a)    Terminates the contact; or

(b)     Injures the independent contractor in relation to the terms and conditions of the contract; or

(c)    Alters the position of the independent contractor to the independent contractor’s prejudice; or

(d)    Refuses to make use of, or agree to make use of, services offered by the independent contractor; or

(e)     Refuses to supply, or agree to supply, goods or services to the independent contractor.

137    The applicant submitted that the words “against a person employed or engaged” found in column 1 of Item 3 were sufficiently broad to encompass the taking of adverse action by a principal against an employee of an independent contractor. It would otherwise be impossible for adverse action to be made against an employee of an independent contractor as contemplated in column 1, and contrary to the implied intention of the legislators.

138    In summary, the respondent submitted that s 342 Item 3 of the FW Act did not apply to the circumstances of the case, and accordingly no adverse action was taken against Mr M, because:

The contract between Workpac and the respondent had not been terminated;

Workpac as the independent contractor did not allege any injury, prejudice, or refusal within the meaning of s.342 Item 3 of the FW Act; and

Section 342 Item 3 of the FW Act does not contemplate “adverse action” being taken against an employee of Workpac by the principal. Rather, the relevant protection is afforded to Workpac itself. It does not provide the applicant or Mr Meikle with standing to allege (on behalf of Workpac) any of the above.

139    I do not accept the respondent’s construction of s 342 of the FW Act, or that exclusion of Mr M from the Mine by the respondent could not be “adverse action” by the respondent against Mr Meikle within the meaning of s342 Item 3 of the FW Act. Item 3 plainly contemplates a principal taking adverse action against an independent contractor or a person employed or engaged by the independent contractor, such as Mr M, by a principal, such as the respondent. I further reject the respondent’s submission that the relevant protection under s 342 Item 3 could relate only to conduct on the part of the respondent which affected WorkPac.

140    In my view, in respect of the respondent’s conduct in excluding Mr M from the Mine, the applicant has substantiated that the respondent had taken adverse action against Mr Meikle.

WORKPLACE RIGHTS

141    “Workplace right” is defined by s 341 of the FW Act as follows:

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

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

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

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

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

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

142    The applicant claims that on 9-10 December 2019 Mr M exercised workplace rights relating to two matters, namely Mr M’s:

(a)    complaints in respect of the unsafe overtaking manoeuvre and adherence to the Traffic Rules SOP; and

(b)    refusal to improperly remove the out of service tag when he had no authority to do so under the Isolation and Tagging SOP.

143    The respondent admitted that each of the complaints made by Mr M formed the exercise of a workplace right insofar as it was a complaint about his employment. However as became clear at the hearing, the applicant’s case was that Mr Meikle had a workplace right in terms of s 341(1)(a), namely that Mr M was entitled to the benefit of, or had a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body, being the relevant SOPs or s 39(1)(b), (c) and/or 39 (2)(c) of the CMSH Act (transcript p 327). The respondent denied that Mr M conduct constituted the performance or discharge of such a role or responsibility.

144    In relation to the overtaking manoeuvre, the applicant alleged that Mr M’s complaints constituted a workplace right in three different ways, namely:

the performance of or a discharge of a role or responsibility conferred by s. 39 of the CMSH Act, being a workplace law;

the performance or discharge of a role or responsibility conferred by the Workplace Inspection SOP, being a workplace instrument; and

a complaint in respect of his employment.

145    In relation to Mr M’s refusal to remove the out of service tag, the applicant contended that this constituted the exercise of a workplace right in that it was the performance or discharge or a role or responsibility conferred or imposed by the Isolation and Tagging SOP which was a workplace instrument.

146    I have found that the CMSH Act and the CMSH Regulations were workplace laws, and the relevant SOPs were workplace instruments. The key question is whether Mr M was discharging a role or responsibility conferred or imposed by s. 39 of the CMSH Act and/or the Workplace Inspection SOP (in relation to the overtaking manoeuvre), or the Isolation and Tagging SOP (in relation to his refusal to remove the out of service tag).

Complaint as to overtaking manoeuvre

147    The applicant alleges that s 39 (1) and (2)(c) of the CMSH Act imposed an obligation on Mr M to take any course of action which is reasonable and necessary to ensure that others are not exposed to risk. In discharging that responsibility,

148    The respondent submits that Mr M’s complaint in relation to the overtaking manoeuvre had no foundation in the manoeuvre being “unsafe” but rather it was a complaint that there had been a failure to comply with the relevant SOP and Traffic Rules.

149    Section 39 of the CMSH Act relevantly provides:

39 OBLIGATIONS OF PERSONS GENERALLY

(1)     A coal mine worker or other person at a coal mine or a person who may affect the safety and health of others at a coal mine or as a result of coal mining operations has the following obligations—

(a)     …

(b)     if the coal mine worker or other person has information that other persons need to know to fulfil their obligations or duties under this Act, or to protect themselves from the risk of injury or illness, to give the information to the other persons;

(c)     to take any other reasonable and necessary course of action to ensure anyone is not exposed to an unacceptable level of risk.

(2)     A coal mine worker or other person at a coal mine has the following additional obligations—

(a)     …

(b)     …

(c)     to the extent of the worker’s or person’s involvement, to participate in and conform to the risk management practices of the mine;

150    The applicant submitted that in this case Mr M had witnessed an act in contravention of the Traffic Rules, the non-compliance needed to be addressed to reduce the risk that the operator posed to other workers at the Mine, and Mr M was obliged to act on the information he had.

151    I accept that, in relation to his complaint concerning the overtaking manoeuvre, Mr M was exercising a workplace right. Although the respondent submitted that Mr Me’s complaints largely turned on his interpretation of the relevant SOP and Traffic Rules and at no stage did Mr M assert anything about the overtaking manoeuvre being “unsafe”, in fact the element of safety was intrinsic to Mr M’s complaint. In particular, his complaint was that the conduct was inherently unsafe and also breached the relevant SOP and Traffic Rules. The language of s 39 (1)(b) and (c) of the CMSH Act impose an obligation on a coal mine worker, such as Mr M, to pass on information such as information concerning suspected dangerous driving to management.

152    I further note that the Workplace Inspections SOP was not in evidence (transcript page 328), however the nature of the obligations imposed by it were agreed by the parties at para 21 of the Statement of Agreed Facts filed on 8 April 2021. In particular, the parties agreed that:

Pursuant to clause 7 of the Workplace Inspections SOP, if hazards or hazardous conditions are found:

(a)     the hazard is to be made safe (where possible);

(b)     all hazards/ events must be immediately reported to the relevant supervisor; and

(c)     hazards are to be recorded in accordance with the site Risk Management Process.

153    I accept the submission of the applicant that, in this case, Mr Meikle had a right to make the relevant complaint to management of the respondent concerning the overtaking manoeuvre.

Refusal to remove out of service tag

154    In relation to Mr M’s refusal to remove the out of service tag on the basis that he had no authority to do so, the respondent submitted that, because the placing of the out of service tag by Mr M did not comply with clause 67 of the Isolation and Tagging SOP:

the tag was not operational;

clause 69 of the Isolation and Tagging SOP did not apply; and

Mr M’s refusal to remove the tag could not amount to the performance or discharge of a role or responsibility under the SOP.

155    I am satisfied that, in refusing to remove the out of service tag, Mr M was exercising a responsibility given to him by a workplace instrument, namely the Isolation and Tagging SOP.

156    The Isolation and Tagging SOP was annexed to the affidavit of Mr Newman. Clause 65 of the instrument provided that such tags are applied to faulty or unsafe equipment to warn personnel of a potential hazard or to prevent further damage to equipment. Importantly, cl 69 provides:

Out of Service tags must only be removed by an authorised person who has carried out repairs, maintenance or inspected the equipment and deemed the equipment in a condition fit for use; Tags must be destroyed and disposed of when finished with.

157    The SOP plainly contemplates that out of service tags could only be removed by an authorised person, being (for example) a repairer or “fitter”. While the SOP makes provision for the placement of the tag, I am not satisfied that even an improperly applied out of service tag could be removed from equipment other than by an authorised person. Mr M was acting consistently with the responsibility imposed by cl 69 of the Isolation and Tagging SOP, and exercised a workplace right in refusing to remove the out of service tag.

PROHIBITED REASON

158    The applicant has established that Mr M exercised a workplace right or rights, and the respondent took adverse action against him by excluding him from the Mine. The onus now rests on the respondent to establish that its action in excluding Mr M from the Mine was for a reason other than a reason prohibited by s 361 of the FW.

159    Before turning to the evidence of the respondent and the reasons proffered by the relevant decision-maker, it is helpful to outline the evidence given by Mr M and Ms Rakitovszky in relation the disciplinary process that followed. I note, of course, that this evidence is not an explanation by any means of the reasons of the respondent – that rebuttal rests solely on the respondent – however the evidence put forward by the applicant assists in understanding the relevant course of events.

Mr Daryl M

160    Relevantly, Mr M deposed:

  1. On 10 December 2019 I received a telephone call from Ms Liz Rakitovszky, National Industrial Relations Manager for WorkPac. She told me that I was being stood down.
  2. On 17 December 2019, I received a show cause notice (the Notice) from WorkPac. Annexed hereto and marked “DM-5′ is a copy of the Notice dated 17 December 2019.
  3. The Notice contained two allegations. The allegations were in the following terms:

(a)     that on 8 December 2019 I placed an ‘out of service’ tag on the ladder of the truck that I was operating, and, as a result of the incorrect placement of the tag, the fitter that was to undertake work on the truck did not identify the tag and therefore did not remove it during repair. This caused the fitter to have to return to the truck to remove the tag. As a result of this, the truck was out of service for longer than necessary. The extended delay therefore caused a productivity loss for BMA. Additionally, It alleged that I had breached section 67 of the ‘BMA Coal Standard Operating Procedure Isolation Tagging’, which provides that “out of service tags…must be placed as close as practical lo any operational control and on any isolation points until the equipment has been deemed fit for use” (together Allegation One); and

(b)    that on 8 December 2019 I observed a truck perform an unsafe overtaking manoeuvre and reported it is a traffic incident to my supervisor on the basis that it constituted a breach of the relevant SOPs. On Inspection by the supervisor it was identified that the SOP that I referred to was an SOP from GRM and the supervisor queried the application of the SOP to the Mine. I insisted that the SOP applied to all BMA mines. The supervisor showed me the correct SOP for the Mine. It was alleged that by utilising an SOP that does not form part of the Site’s Safety and Health Management System (SHMS) I had:

  1. breached section 39(1 )(a) of the CMSH Act, which provides that a coal mine worker “comply with this Act and procedures applying to the worker or person that are part of a safety and health management system for the mine”;
  2. failed to comply with my notice of offer, which provided that “it is a term of employment that you comply with each of the Client’s policies and procedures and any other requirements which apply at the Client’s Site”; and

iii. failed to comply with the ‘Terms & Conditions’, specifically that:

  1. a “failure to comply with site policies and procedures may result in the termination of your employment and/or assignment” and;
  2. the ”employee (FTM) must inform themselves of and strictly follow all NES operating procedures and safety systems of work specified for each site for particular tools, equipment and tasks”.

(together Allegation Two)

161    The applicant represented Mr M in relation to these allegations and the show cause process. Key events of the show cause process were outlined in Mr M’s 25 September 2020 affidavit, with minor corrections in the November 2020 affidavit. Relevantly, those events included:

On 17 December 2019 Mr M attended a meeting with, amongst other WorkPac employees and representatives of the applicant, Ms Rakitovszky to discuss the allegations; and

On 23 December 2019 Mr M received an email from Ms Rakitovszky advising that WorkPac was not pressing Allegation Two because upon investigation it was determined that the SOPs referred to applied at both the Goonyella Riverside Mine and the Mine;

On 8 January 2020 Mr M submitted a written respondent to the allegations in which he denied any wrongdoing;

On 16 January 2020 Mr M attended a further meeting with Ms Rakitovsky, amongst others, during which he received correspondence titled ‘Close Out of Investigation – First Written Warning’ and ‘Finalisation of Assignment’ (16 January 2020 meeting).

162    Notably, the Close Out of Investigation correspondence concluded:

…WorkPac is satisfied that your conduct in placing the ‘out of service tag’ on the ladder of the relevant vehicle is a breach of the Isolation and Tagging SOP in that the ‘out of service’ tag was not placed as close as practical to any operational controls and/or on any isolation points.

In making this finding, WorkPac notes that the placement of the ‘out of service’ tag on the ladder was an inadvertent error and that, at all material times, you were candid In your admission that the ‘out of service tag’ could have been placed in a different position,

In circumstances where WorkPac has determined that your conduct was in breach of the Isolation and Tagging SOP, it necessarily follow that your conduct was also in breach of the WorkPac Assignment and Basic Safety Guide (the Guide), the Casual Employee (FTM) Terms & Conditions of Employment (Terms & Conditions) and your Notice of Offer of Casual Employment (Notice of Offer), all of which provide that you are required to comply with applicable Site policies, procedures and practices.”

163    The Finalisation of Assignment correspondence provided:

…I now confirm that during the time WorkPac was investigating the above allegations, [BMA] has advised that your access to the Site has been revoked.

As above, WorkPac has, on a number of occasions during this process, sought further information and clarification from [BMA] including in relation to its decision to exclude you from Site.

As you are aware however, [BMA] as occupier of the Site, holds ultimate discretion as to whether it exercises its rights to exclude you from Site.

In circumstances where [BMA] has exercised this discretion, your casual assignment at Site has not come to an end, effective 16 January 2020.

While your assignment with [BMA] may have come to an end, WorkPac will continue to work with you to identify any alternate assignment opportunities…

164    Mr M then provided evidence concerning subsequent unsuccessful attempts to obtain further roles with WorkPac.

Ms Elizabeth Mary Rakitovszky

165    Ms Rakitovszky was the National Industrial Relations Manager of WorkPac. She described the business of WorkPac “at a basic level” as a labour hire business which deployed its employees to perform work for a client on an assignment basis under a services contract.

166    Ms Rakitovszky gave evidence on behalf of WorkPac by way of an affidavit dated 23 October 2020, prior to the discontinuance of proceedings against it. Ms Rakitovszky was then subpoenaed to give evidence by the applicant.

167    Relevantly, Ms Rakitovszky deposed at [14] of her affidavit:

  1. I made the decision to stand Mr M down with pay so that the investigation could occur. I did so because in my judgment this was the most appropriate way to ensure that the investigation proceeded efficiently, so that we could understand whether the allegations were substantiated before Mr M was deployed to further work and because Mr M had been stood aside from his duties at the Daunia Mine and we had no other work to which he could be immediately deployed.
  2. At approximately 9.30am, I had a telephone conversation with Mr M. I explained to Mr M in words to the following effect that WorkPac had been made aware of some incidents which may have occurred on site and that he was being stood down with pay pending an investigation.

168    Ms Rakitovszky gave evidence of WorkPac’s investigation into Mr M. Key aspects of Ms Rakitovszky’s evidence were as follows:

  1. I was the relevant decision-maker in relation to the investigation.
  2. Based on the information available to me my conclusions were as follows:

(a)     Mr M had placed an ‘information tag’ on the stairs to a truck after noticing an oil leak on 8 December 2019;

(b)     after speaking with his supervisor, Mr M replaced the ‘information tag’ on the stairs to the truck with an ‘out of service’ tag;

(c)     the Isolation and Tagging SOP required that the out of service tag ‘must be placed as close as practical to any operational controls and on any isolation points until the equipment has been deemed fit for use.’

(d)     Mr M had admitted in his Incident Statement dated 8 December 2019 that he had a lapse in concentration when placing the out of service tag on the stairs of the truck and not on an operational control or on an isolation point;

(e)     the stairs to the truck was not considered to be an ‘operational control’ or an ‘isolation point’;

(f)     the fitter who subsequently undertook work on the truck did not identify the out of service tag when conducting the repair. The fitter had to return to the truck and remove the tag at a later time, leading to a delay and, on BMA’s view, productivity loss because the truck was out of service for longer than it needed to be. However given the lack of specific evidence, I did not consider there was sufficient evidence to conclude that the delay caused production loss;

(g)     there was no suggestion that Mr M’s conduct in placing the out of service tag on the stairs was a deliberate breach of the Isolation and Tagging SOP; and

(h)     Mr M had accepted that he could have placed the out of service tag in a different position, and one in which the fitter may have more likely identified it.

  1. In all the circumstances, I concluded that Mr M had breached the Isolation and Tagging SOP. In doing so, that was also in breach of the terms and conditions of his employment with WorkPac which required Mr M to comply with applicable Site policies, procedures and practices such as the Isolation and Tagging SOP.
  2. I accepted that Mr M’s conduct was inadvertent and not deliberate. I did not consider that Mr M’s conduct in breaching the Isolation and Tagging SOP was so serious as to warrant termination of employment. However, it was a breach of the Isolation and Tagging SOP.
  3. For those reasons, I considered that a first written warning was an appropriate disciplinary outcome. This was consistent with other disciplinary outcomes involving breaches of tagging and isolation procedures of similar severity that I was aware of.
  4. My conclusion about the appropriate disciplinary outcome did not occur because Mr M (either directly or via the CFMMEU) had raised any complaints with WorkPac about the conduct of BMA employees. My conclusion was solely based on the matters set out in paragraphs 39 to 42 above. I did not have regard to any other matters when coming to my conclusion about the appropriate disciplinary outcome.

169    Mr Rakitvoszky then turned to BMA’s decision to exclude Mr M from the Mine. Notably she deposed:

BMA’s decision to exclude Mr M from the Dauina Mine

  1. Having completed my investigation into Mr M’s conduct, I provided an update to BMA in relation to WorkPac’s findings.
  2. I was ultimately advised on 15 January 2020 when I attended a meeting on site that BMA had made the decision to exclude Mr M from the Daunia Mine. I spoke with Blair (whose last name I do not recall) and advised him that WorkPac had concluded its investigation into the allegations against Mr M and had concluded that Mr M had breached the Isolation and Tagging SOP but that the breach was not so serious so as to warrant Mr M’s termination. Blair’s response was to the effect that he considered a breach of the Isolation and Tagging SOP to be a very serious matter and did not understand why it did not warrant termination. Blair also said words to the effect that Mr M would not be allowed back on site.
  3. Other than the information provided to me by Blair, I do not know the reasons why BMA made its decision to exclude Mr M from the Daunia Mine. I did not agree that the conduct as I had concluded had occurred warranted his exclusion form the Daunia Mine, however I have no reason to doubt that Blair accurately indicated BMA’s reasons for excluding Mr M from further work at the Daunia Mine.
  4. As a result of that exclusion, WorkPac was no longer able to deploy Mr M to his casual assignment at the Daunia Mine.

170    At the hearing, Ms Rakitvoszky corrected paragraph [46] of her affidavit to read ‘Mr Blair Whitney’.

Evidence of the Respondent

171    Relevantly, the respondent relied on the evidence of Mr Cameron and Mr Hennessy in relation to their rebuttal as to whether adverse action was taken for a prohibited reason. In this respect, Mr Hennessy, direct supervisor of Mr Cameron, was considered the “ultimate” decision-maker.

Mr James Cameron

172    Mr Cameron gave the following reasons for standing Mr M aside:

  1. As set out in my email to Mr Hennessy, my reasons for standing Mr M aside were:

(a)     Mr Me was relying on an incorrect SOP in respect of the Overtaking Manoeuvre and when I asked him further about it, he was in my view dishonest about it and refused to privde a statement to me about it;

(b)    Following on from that, he was intransigent about accepting the interpretation of the Traffic Rules that I provided after consultation with relevant individuals at the Mine;

(c)    The Isolation and Tagging Breach;

(d)     The triggering of abusive alarms and the MineStar non-compliance; and

(e)    The Go Line Incident.

  1. I noted in that email that combination of the above reasons led me to believe that Mr M posed an unacceptable safety risk.

173    The “go-line” incident referenced by Mr Cameron refers to an incident at approximately 10.40pm on 17 September 2019 where Mr M, when driving a truck, accidentally turned into an exit lane rather than the entry lane. Mr M radioed in the incident over the two-way radio. Mr Cameron stated at [19]:

I recall having a conversation with Mr M directly after the Go Line Incident after he had completed his drug and alcohol testing and, while I do not recall exactly what was said, I recall that I asked Mr M if he was alright and asked him how the Go Line Incident happened. Mr M acknowledged that the Go Line Incident was his mistake and I told him he would need to fill out an incident report and submit this to me, in accordance with our usual practice. Annexed and marked “JWC-2” is a copy of the incident report as completed by Mr M in relation to the Go Line Incident.

174    Mr Cameron further deposed:

  1. I categorically deny that the reason I stood Mr M aside and reported this matter to Mr Hennessy had anything to do with the issues Mr M raised in respect of:

(a)     the Severe Weather Event;

(b)    the Overtaking Manoeuvre (insofar as it related to Mr M’s right to raise a concern that the Overtaking Manoeuvre had been contray to the Traffic Rules); and

(c)    who was authorised to remove the Out of Service tag under the Isolation and Tagging SOP.

  1. The sole reason I recommended that Mr M be stood aside and noted in my email to Mr Hennessy that I considered him an unacceptable safety risk was because he attempted to rely on another mine’s SOP in respect of the Overtaking Manoeuvre and then, when he was challenged on this, he refused to accept that he could not do this and would not participate in an investigation. While the decision regarding Mr M continuing to work at the Mine rests ultimately with Mr Hennessy, my genuine view is that, had Mr M been upfront with me about relying on another SOP and been cooperative with an investigation in relation to that, I would have given serious consideration to him remaining in my team. This is supported by the fact that I asked Ms Hollingsworth to come to my office on 9 December 2019 to upskill Mr M on these matters. I cannot see why I would have organised this and told Mr M that she was there for that purpose if my intention was to try to get rid of him.
  2. I never had any issue with Mr M raising issues about the interpretation of the Mine’s SOPs or anything else, but when you have a situation where a CMW is telling you that something on site is or is not allowed using another mine’s SOP and then when questioned about this, totally shuts down and refuses to participate in further discussions on this, this is not something we can tolerate. The consequence of having someone at the Mine who is not across their obligations pursuant to the SHMS (and won’t be challenged on it) is too much of a risk to have on site. That is the crux of it for me.

Mr Todd Hennessy

175    The respondent submitted that Mr Hennessy was the relevant decision-maker. Mr Hennessy’s evidence for the reasons Mr M was excluded from the Mine were set out in his affidavit dated 23 October 2020 as follows:

Decision to exclude Mr M from the Mine

  1. I am aware that, in these proceedings, the CFMMEU alleges that BMA made the decision to exclude Mr M from site because he alleges he at various times exercised his workplace rights (as that term is defined in the FW Act) in relation to:

(a)    the Lightning Event (as that term is defined in the CFMMEU’s Amended Statement of Claim filed on 8 June 2020 (ASoC));

(b)     the Unsafe Overtaking Manoeuvre (as that term is defined in that ASoC); and

(c)     the Out of Service Tag Issue (as that term is defined in the ASoC).

  1. In relation to each of these, my knowledge (including who reported this to me) can be summarised as follows:

(a)     In relation to the Lightning Event, at the time I made the decision to exclude Mr M from the Mine, I was aware from my brief discussion with Ms Dow that Mr M had had a conversation with Ms Dow in relation to some concerns he held regarding the Severe Weather Procedure, but the extent of my recollection of this conversation is outlined at paragraph 17 above. I was not aware of the substance of Mr Meikle’s concerns. To my knowledge, CMWs regularly raise safety questions and concerns with their supervisors and this is actively encouraged in the Mine. I was also not aware of any of his complaints in relation to the Lightning Event raised at the pre-start meeting. I did not take this into account when making my decision to exclude Mr M from the Mine.

(b)     In relation to the Unsafe Overtaking Manoeuvre, my visibility over this was limited to the conversation I had with Mr Cameron as outlined at paragraphs 19 to 23 of this affidavit. This matter was raised with me by Mr Cameron in the context of Mr M relying on an incorrect SOP. The only matter of relevance relating to the UnsafeOvertaking Manoeuvre that I took into account when deciding to exclude Mr M from the Mine was, as Mr Cameron set out in his email to me on 9 December 2019, Mr M refused to accept that the overtaking manoeuvre he had witnessed was in accordance with the relevant traffic rules even when he had been told by a number of senior people at the Mine that it was.

(c)     In relation to the Out of Service Tag Issue, I had no knowledge of this at the time I made the decision to exclude Mr M from the Mine.

  1. After reviewing the information Mr Cameron provided to me on 9 December 2019, I decided that, when taken together, the matters outlined by Mr Cameron meant that Mr M could no longer remain at the Mine, because he posed an unacceptable safety risk. The most serious matter outlined in Mr Cameron’s email from my perspective, and the factor that was most persuasive to me in determining that Mr M should be excluded was that Mr M refused to participate in an investigation regarding his reliance on an incorrect SOP. I understand that people make mistakes and may be incorrectly relying on the wrong documents but to shut down and refuse to engage in discussions with us about this – particularly given there were a number of other safety incidents Mr M was involved in while on hire to BMA – indicated to me that Mr M did not sufficiently comprehend his obligations with respect to maintaining a safe workplace at the Mine.
  2. I categorically deny that my decision to exclude Mr M from the Mine had anything to do with his discussions with various people at the Mine regarding the Lightning Event, the Unsafe Overtaking Manoeuvre (except as outlined above at paragraph 32(b)), or the Out of Service Tag Issue.

Communications with Workpac

  1. After I made the decision to exclude Mr M from site, I telephoned my usual contact from Workpac, Jessica Kemp (Ms Kemp), at approximately 8am to communicate to her that I had decided that, pending Workpac’s investigation, Mr M should be excluded from the Mine by saying words to the following effect “I wanted to let you know that Daryl M will no longer be required by us. I will send you more information setting out why.” I emailed her this document at 8.21 am on 10 December 2019. A copy of this email with attachments is annexed and marked “TWH-3”.
  2. At approximately 9am, Ms Kemp telephoned me and asked me to provide additional information regarding my view that Mr M should be excluded from the Mine. I sent Ms Kemp the following documents by email at 9.53am, 9.57am, 10am and 10.10am respectively:

(a)     The BMA Isolation and Tagging SOP;

(b)     A photograph of the truck Mr M drove the wrong way up the go-line;

(c)     Mr M’s completed incident statement in relation to driving the wrong way up the go-line, dated 19 September 2019; and

(d)     A screenshot of Mr M’s event record showing that he had triggered “Body Up while Machine in Motion”, “Transmission Abuse Warning” and “Machine Uplift to prevent Engine Overspeed” alarms on eight occasions between 11 November 2019 and 7 December 2019. This event record was generated by Mine Control on a weekly basis and sent to supervisors (in Mr M’s case, Mr Cameron) so the supervisor could speak to the relevant CMW regarding the abusive alarms they were triggering. This was the most recent event record for Mr M at the time I made the decision to exclude Mr M from the Mine.

  1. Copies of these emails to Ms Kemp are annexed and marked “TWH-4”. I recall that Mr Cameron gathered and sent these documents to me, but I have not been able to locate the covering email where Mr Cameron sent me these documents.

Consideration

176    Taking into account the evidence as a whole, notwithstanding the contentions of the respondent that it has not taken adverse action against Mr M within the terms of s 342 of the FW Act, I am satisfied that the respondent took adverse action against Mr M for reasons which included, as a substantive and operative reason, his exercise of workplace rights, thus contravening s 340 of that Act. I have formed this view for the following reasons.

177    First, Mr Hennessy gave evidence that, in the course of his role with the respondent, he made the decision to exclude Mr M from the Mine. I am satisfied that Mr Hennessy was the relevant decision-maker. His evidence as to why he made that decision is crucial in determining whether the respondent has discharged its onus. As French CJ and Crennan J observed in Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500:

  1. There is no warrant to be derived from the text of the relevant provisions of the Fair Work Act for treating the statutory expression “because” in s 346, or the statutory presumption in s 361, as requiring only an objective enquiry into a defendant employer’s reason, including any unconscious reason, for taking adverse action. The imposition of the statutory presumption in s 361, and the correlative onus on employers, naturally and ordinarily mean that direct evidence of a decision-maker as to state of mind, intent or purpose will bear upon the question of why adverse action was taken, although the central question remains “why was the adverse action taken?”

(footnotes omitted)

178    Second, Mr Hennessy’s evidence was that he made the decision to exclude Mr M from the Mine after reviewing the information Mr Cameron provided to him on 9 December 2019, and concluding that Mr M was an unacceptable safety risk because Mr M refused to participate in an investigation regarding his reliance on an incorrect SOP. He denied that his decision had anything to do with the lightning event”, the overtaking manoeuvre, or the tagging incident. The difficulty with this evidence however is that it is inconsistent with other communications to Mr M from both Ms Dow and Mr Cameron concerning Mr M in the days leading up to the decision to exclude Mr M, as well as evidence of Mr Hennessy and Mr Cameron concerning the usual approach by the respondent to incorrect tagging and evidence of Ms Rakitovszky concerning the seriousness of Mr M’s conduct. As French CJ and Crennan J continued in Barclay:

  1. … Direct evidence of the reason why a decision-maker took adverse action, which may include positive evidence that the action was not taken for a prohibited reason, may be unreliable because of other contradictory evidence given by the decision-maker or because other objective facts are proven which contradict the decision-maker’s evidence…

(footnotes omitted, emphasis added)

179    In particular I note the following.

180    As I have already observed, Ms Dow had plainly sent a detailed email to Mr Hennessy on 10 December 2019, labelled as a “Copy of File Note” in her evidence. It is convenient to set out the body of the email here:

On Saturday night 07/12/19 @ 6:45pm approx, I spoke to N/S OCE Laurie Gibson on the phone to see how the prestart had gone as there had been a weather event the night before and a decision had been made to roll out sections of the lightning TARP due to some confusion and concerns expressed by CMWs. The level 3 and 4 of the TARP was communicated by the Supervisors including the assurance that if anyone felt unsafe, they could exercise their rights to stop operations.

Laurie’s feedback to me was that there was a few CMWs that had expressed concern in the prestart relating to the level 4 TARP regarding the potential of rubber tyred equipment being struck by lightning. He also made a point of mentioning that D M was vocal in the prestart about this matter including previous directives/ recommendations that the Inspectorate had issued to the industry.

Laurie had concerns that Darryl’s comments were confusing the crew further and at that point, I asked Laurie if he could organize with Darryl’s Supervisor if he could be made available at the end of the shift so I could catch up with him to understand his concerns and talk through the DNM severe weather procedure and TARPs in the morning.

When I arrived on Sunday morning to the Main Go Line office, Darryl was waiting for me and I greeted him with a hello and said lets catch up for a chat. Darryl inquired why I wanted to see him and I advised that I was made aware that he had concerns regarding our severe weather procedure and Lightning TARP and I wanted to understand his concerns.

We had a chat for approx. half an hour on not just this matter as he also raised other concerns such as CMWs not conducting prestart inspections correctly, the time allocated to do hot seat prestart inspections and sections of the coal mining legislation relating to “all persons obligations generally.”

I believe the discussion with Darryl was an informal chat in which I told him on a couple of occasions that my door is always open to him and other CMWs if they have concerns or are wanting any documentation relating to the site SHMS.

The OCE office door was left open during our discussion and OCE Michael North was witness to some of this discussion after he had completed a handover with the N/S OCE Laurie Gibson.

At no time, did I speak to Darryl in a way that was disrespectful or not aligned to the BMA Charter Values.

Regards,

Angela Dow

Shift Compliance Coordinator – OCE

BMA Operations – Daunia Mine

BHP Billiton Mitsubishi Alliance

181    The applicant submitted, in summary, that Ms Dow’s inability to explain why she had removed the header from the document and substituted “diary note” was suspicious, in that it was an attempt to obscure the existing level of interest Mr Hennessy and Mr Whitney had in matters involving Mr M as at 10 December 2019. As I have noted, the respondent submitted in turn that the attack on Ms Dow was somewhat of a “red herring”, because there was no evidence nor any suggestion that she was involved in the decision-making process to exclude Mr M from the Mine. I accept that Ms Dow was not involved in the decision-making process concerning Mr M’s exclusion, however as I have already observed I consider it reasonable to infer that Ms Dow sent an email containing the material in her “diary note” to management of the respondent at the MineI consider it further reasonable to infer that Ms Dow had done so in light of an already existing interest in Mr M on the part of management –at the Mine prior to 10 December 2019.

182    In addition to my findings in relation to the “diary note” sent by Ms Dow, at the hearing the applicant produced a further email sent by Ms Dow forwarding an email to “Mr Nicholls” at approximately 10am on 8 December 2019, notably, after her meeting with Mr M. The contents of the forwarded email was an earlier email sent to Ms Dow from Mr Whitney, regarding the outcome of the lightning event and enclosing information on lightning strikes. Relevantly, Ms Dow wrote in her email:

Interesting times – More complaints last night and the morning started as soon as I walked in the office with a 35 min discussion with Darryl [sic] M who is an operator on nightshift questioning me on the 101 and what was delivered a [sic] prestart.

Of Note – His surname……………

AD.x

183    During cross-examination Counsel for the applicant suggested to Ms Dow that she was unhappy to have had a 35 minute conversation with Mr M, followed by the insinuation that there was a connection between Mr M and his brother, Mr Jason M, who happened to be another employee of BMA or associated with BMA. In making this insinuation, Counsel for the applicant submitted that Ms Dow was attempting to convey by the series of dots after the words “His surname”, and in the context of the email, that Mr M was a “troublemaker”.

184    Although Ms Dow insisted there was nothing untoward in relation to the dots, I do not consider this entirely persuasive. Rather, it supports the applicant’s contention that there was an, albeit undefined, interest in Mr M by management.

185    More pertinently however, Mr Hennessy’s evidence of his reasons for excluding Mr M from the Mine was not credible. Mr Hennessy gave evidence that the only email he had received from Mr Cameron concerning Mr M was late on the evening of 9 December 2019, and that he therefore formed the conclusion that Mr M was a safety risk because he was, in essence, unco-operative in relation to a proposed investigation. However during cross-examination of Mr Hennessy, Counsel for the applicant put to him the existence of numerous other emails sent to Mr Hennessy by Mr Cameron on the morning of 9 December 2019 from 4.43am through until 6.01am, to which Mr Hennessy had not referred in his affidavit. During cross-examination, Mr Hennessy admitted that on the morning of 9 December 2019 he knew that Mr M had had an incident the night before involving the removal of the out of service tag, and that Mr Hennessy had had a meeting with his own supervisor Mr Whitney to discuss Mr M (transcript pp 208-209). When pressed by Counsel as to why Mr Hennessy had not also referred to previous correspondence between Mr Cameron and Mr Hennessy concerning Mr M, Mr Hennessy’s evidence was as follows:

Well, you didn’t tell her Honour about them, did you?—No, I was – when I had done my affidavit, I didn’t have them emails at the time. My – my emails in my inbox might only last about three months, and they go into the archive somewhere, so yes, I didn’t have them when I done my affidavit; I didn’t have those emails with me, no. I had done it to the best of my recollection.

(transcript p 214 ll 6-10)

186    In my view Mr Hennessy’s explanation is implausible, given that Mr Hennessy had plainly had access to the email sent to him by Mr Cameron on the evening of 9 December 2019. No convincing reason exists as to why he would not have had access to other contemporaneous correspondence. Mr Hennessy subsequently conceded this point at the hearing (transcript p 215-216).

187    Further, the fact that Mr Hennessy’s evidence did not include reference to the discussions with his own supervisor, Mr Whitney, regarding Mr M is concerning. Mr Hennessy conceded that Mr Whitney had sent him an email at 11.33am on 9 December 2019 in the following terms:

You will have to talk me through this so I understand correctly. Sounds like there are multiple issues that have occurred here. Not following delay processes properly, and removing a tag when not authorised to do so.

188    Mr Hennessy also conceded that he had met with Mr Whitney shortly thereafter to discuss Mr M. That Mr Hennessy did not refer to this correspondence or meeting in his evidence not only damages his credibility as a witness, it further fuels the inference that the management of the respondent had a pre-existing interest in Mr M.

189    Further, as became apparent during cross-examination of both Mr Cameron and Mr Hennessy, neither were honest at the time of Mr M’s exclusion from the Mine in relation to Mr M’s alleged error in relying on the “incorrect” SOP and the overtaking manoeuvre. It is no longer in dispute that the relevant Daunia SOP was exactly the same as the relevant Goonyella Riverside SOP , that the same document was approved at both mines, and to the extent that Mr M had referred to an SOP with “GRM” on the cover it was the same as that approved at the Mine. It appears that, at the time Mr Cameron called Mr Hennessy on the night of 9 December 2019 to discuss Mr M, he knew that Mr M’s position was that the SOP had been approved at both mines, however Mr Cameron did not tell Mr Hennessy this (transcript p 302, 303).

190    Perhaps even more egregiously, Mr Hennessy gave evidence that at the time of WorkPac’s investigation of Mr M, Mr Hennessy knew that the allegation of Mr M relying on the “wrong” SOP was false, but did nothing to retract it. I note in particular the following evidence of Mr Hennessy as emerged during cross-examination:

Now, you can see in her email that Ms Kemp is seeking copies of the traffic management SOP for Daunia, which is the SOP that applies at your mine?—Yes.

And a copy of the SOP for Goonyella Riverside Mine, which is the one which Mr M was alleged to have used. Correct?—Yes. Yes.

And in response you send her the attachment, and you say you do not have a copy of the GRM SOP. That’s in the front page?—Yes.

So you obviously went and dug out from the system the SOP that applies at Daunia, correct?—Correct.

Now, on the first page of that SOP it says, doesn’t it:

This SOP has been separately adopted at each of the following mines as that mine’s SOP.

And then it says:

This followed separate risk assessments and consultations and so on.

—Mmm.

And then there is a table which identifies the mines and the dates on which it was adopted. Correct?—Correct.

And it’s right to say, isn’t it, that it was adopted at Daunia on 14 December 2018?—Correct.

And this very document was adopted at Goonyella Riverside on 4 June 2019?—Correct.

So as at 8 or 9 December 2019, Goonyella Riverside Mine and Daunia Mine had exactly the same SOP in respect of the operation of vehicles and mobile equipment. Correct?—It appears correct, yes.

And you would have seen that when you sent – when you dug that out for Ms Kemp, correct?—I didn’t necessarily read that. I would have pulled up the procedure then attached and sent it to him.

It’s on the front page, Mr – – -?—Yes. But when she wanted – I wouldn’t have read the document. I would have pulled the document out and sent it to the right people.

Well, can I suggest to you that at the moment you sent that SOP to Ms Kemp you were aware that the allegation that Mr M had been using the wrong SOP had no foundation?—It appears that way, yes.

And did you write to WorkPac at that point withdrawing the allegation against Mr M?—No.

That’s not treating Mr M with fairness, is it?—It’s not.

And did you take any disciplinary action against Mr Cameron?—No.

You understand that Mr Cameron started you down this path, didn’t you?—Well, he’s my reporting supervisor. So everything gets – he sends to me, yes.

And it would appear that about 20 seconds worth of work on Mr Cameron’s part would have revealed that there was no substance in his allegation, wouldn’t it?—For that one, yes.

And did you take any action against Mr Cameron for that?—No.

191    Finally, although both Mr Cameron and Mr Hennessy in their evidence sought to convey that the alleged breach by Mr M in respect of the out of service tag was serious, they also conceded that such conduct would be at the lower end of any disciplinary outcome, usually involving some form of counselling or a written warning (transcript p 187 ll 15-21, p 259 ll39-40). Indeed, Mr Hennessey gave evidence during cross-examination that exclusion of a WorkPac employee from the Mine was considered to be a significant step that was not to be taken lightly. In particular, Mr Hennessey also noted that training new staff was time consuming and costly and therefore it was in the interest of BMA to keep staff turnover at a minimum.

192    Mr Hennessy was unable to give a convincing reason why, in the case of Mr M, what he conceded to be a relatively minor matter warranted escalation to discussion with Mr Whitney (transcript p 201 ll 31-38). In so noting I also have regard to evidence of Ms Rakitovszky, who in relation to the incorrect placement of the out of service tag deposed as follows:

  1. In all the circumstances, I concluded that Mr M had breached the Isolation and Tagging SOP. In doing so, that was also in breach of the terms and conditions of his employment with WorkPac which required Mr Meikle to comply with applicable Site policies, procedures and practices such as the Isolation and Tagging SOP.
  2. I accepted that Mr M’s conduct was inadvertent and not deliberate. I did not consider that Mr M’s conduct in breaching the Isolation and Tagging SOP was so serious as to warrant termination of employment. However, it was a breach of the Isolation and Tagging SOP.
  3. For those reasons, I considered that a first written warning was an appropriate disciplinary outcome. This was consistent with other disciplinary outcomes involving breaches of tagging and isolation procedures of similar severity that I was aware of.

193    Returning to Mr Hennessy’s claimed reasons for his decision to exclude Mr M from the Mine, his alleged belief that Mr M posed an unacceptable safety risk at the Mine has no stance, and is simply implausible. Rather, the evidence indicates that Mr M insisted on exercising workplace rights at the Mine, and that in so doing he essentially aggravated management at the Mine, including Mr Cameron and Mr Hennessy.

194    The FW Act is contravened if it can be established that a prohibited reason comprised a substantial and operative reason, or reasons including the reason, for the relevant adverse action: s 360 of the FW Act, Board of Bendigo Regional Institute of Technical and Further Education v Barcla [2012] HCA 32; (2012) 248 CLR 500 at 535 [104]. To the extent that the respondent has sought to meet the onus on it to rebut the presumption that the adverse action taken against Mr M by the respondent was for a reason prohibited by the FW Act, it has been unsuccessful.

CONCLUSION

195    As the applicant has been successful in its case against the respondent, I understand that the applicant does not press its alternative secondary case pursuant to s 362 of the FW Act, that the respondent contravened the FW Act by encouraging, advising or inciting WorkPac to dismiss Mr M from his employment because he had exercised those same workplace rights.

196    The applicant is entitled to the declaratory relief it has sought against the respondent.

197    I will ask the parties to liaise and submit draft case management orders for hearing of further relief sought.”

 

 

Construction Forestry, Maritime, Mining and Energy Union v BM Alliance Coal Operations Pty Ltd [2023] FCA 30 per Collier J delivered 30 Jan 2023

 

Here is a link to the decision

Construction Forestry, Maritime, Mining and Energy Union v BM Alliance Coal Operations Pty Ltd [2023] FCA 30 (fedcourt.gov.au)

 

***I have replaced the name of a person associated with this case with his surname initial at his request.