Coercion and adverse action by Qantas

Australian Licensed Aircraft Engineers Association v Qantas Airways Ltd & Anor [2011] FMCA 58

Raphael FM

Introduction

1.

Luke Murray is a licensed aircraft maintenance engineer (“LAME”) employed by Qantas Airways Ltd at its Brisbane facilities. He is a member of the Australian Licensed Aircraft Engineers Association (“ALAEA”), whose employment is regulated by the provisions of the Licensed Aircraft Engineers (Qantas Airways) Agreement 8 (the “EBA”) which has been approved under the Workplace Relations Act 1996 (Cth) (“WRA”). Mr Murray commenced his employment with Qantas in 1987. Qantas engineers do not only operate at facilities in Australia. They operate at major ports around the world to which Qantas flies. Some engineers are posted to these locations on a semi-permanent basis but there is a constant need to provide relief staff. The relief staff are sourced from facilities around Australia and Qantas has members of its management team responsible for organising and ensuring the efficient operation of these postings. For the purposes of these proceedings, Mr Panagiotopoulis was the senior executive to whom Mr Cawthorne reported. They were based in Sydney. In Brisbane Mr Honsa had responsibilities for selecting LAMEs to undertake the postings and ensuring that the administrative side of the arrangements were in place. He reported to Mr Thompson, the manager line maintenance operations, who was the person ultimately responsible for approving or declining a request for an overseas posting. When a LAME is sent on an overseas posting, he is entitled to certain benefits under the EBA. These relate to shift penalties (clause 24), overtime (clause 25), travels between ports (clause 39), meal allowance (clause 40) and travel allowance (clause 40). Before a LAME travels he is issued the document entitled “Qantas Engineering Temporary Assignment Agreement”. The six page document is stated to:

  • “confirm details of your temporary assignment from [blank] to [blank]. These dates may be subject to change due to company requirements. Your local manpower planner will advise your rostered shifts pre and post assignment.”

The document gives details of travel, accommodation, contact details, allowances and some other information including medical coverage and insurance. There is a section addressed to the payroll officer. It is in the following form:

SALARY AND OTHER CONDITIONS:
While on posting, you will work according to the published NARITA roster for the period of your assignment. Payment will be made as per your normal Home Base roster, or per a calculated SDA (Special Duties Allowance), whichever is greater.
PAYROLL OFFICER
[ ] Please pay as per normal BRISBANE shift roster.
[ ] Please pay as per SDA calculation attached.

2.

Not every LAME in Brisbane was interested in taking up overseas postings. Mr Honsa kept a list of those qualified to do so. Mr Murray was one of those and, in about November 2009, he was asked by Mr Honsa whether he was interested in taking up a posting to Narita to provide relief coverage for approximately six weeks from 4 December 2009 to 16 January 2010. Mr Murray agreed. He received the temporary assignment agreement in which the section addressed to the payroll officer requiring payment in accordance with the Brisbane shift roster had a cross marked in it. It is common ground that Mr Murray did not receive a copy of the proposed Narita shift roster prior to departing and also that, a short time prior, the shift rosters in Brisbane changed.

3.

Mr Murray flew to Narita and carried out his duties working the Narita shift roster. On the day he was due to return home, he was “bumped” from the plane and had to remain an extra day in Narita. Whilst in Narita he had a health problem for which he had contacted Qantas’ insurers AHI. Mr Murray was unhappy with the service he had received in respect of his medical condition.

4.

There are significant differences between the Narita roster and the Brisbane roster, the effect of which is that longer hours are worked under the Narita roster and higher shift penalties are paid. It was Qantas’ practise to pay the higher of the two shift allowances. Mr Murray gave unchallenged evidence that he raised this matter with Malcolm Ramson, the manager in Narita, in late January 2010 and was advised that he would be paid the higher rates. Mr Murray had gone on leave upon his return from Narita and did not raise his concerns immediately with Mr Honsa. However, on 25 February he spoke with Mr Honsa about taking an additional RDO arising from the extra day spent in Narita because he had been bumped from the plane. At the same time, he informed Mr Honsa that he believed he was entitled to some further RDOs as a result of the extra time that he had worked in Narita over and above the Brisbane roster. Mr Murray received the one extra RDO but Mr Honsa indicated that Mr Murray would need to obtain details of his roster and hours worked from Narita and take the matter up with Mr Cawthorne. In March Mr Murray did take the matter up with Mr Cawthorne in a series of telephone conversations and emails. He also raised with Mr Cawthorne his concerns about his medical treatment. Mr Cawthorne made some enquiries with AHI which indicated that the situation was not quite as described to him by Mr Murray. He telephoned Mr Murray and a heated conversation took place. Mr Thompson became involved as eventually did Mr Panagiotopoulis. On 26 March 2010 a decision was taken between Mr Thompson and Mr Panagiotopoulis to suspend all overseas postings for LAMEs out of Brisbane. This included the regular weekend posting of LAMEs to Noumea. Mr Murray indicated that he intended to invoke the grievance procedure through his Union because of the continued non-payment by Qantas of what he considered to be his additional allowances. On 21 April 2010 the ALAEA commenced these proceedings. On 27 April 2010 the benefit of overseas postings for LAMEs out of Brisbane was reinstated.

5.

On 31 March 2010 Mr Murray applied for promotion to the position of Product Inspector-Airbus (005365) (Toulouse France). He was interviewed for the position on 3 June 2010. On 16 June 2010 Mr Thompson was asked to complete a reference check for Mr Murray which he did. Mr Murray was unaware of this. The responses to the reference check were used to decide whether or not to give a second interview. Although it was decided only to give a very limited number a second interview, a greater number of people were sent an email advising them that they were going to receive such an interview. One of these persons was Mr Murray. On 14 July 2010 he was informed over the telephone that he would not be required for a second interview and that the email had been sent by mistake. Mr Murray at around the same time also applied for another senior position for which he was also unsuccessful. He originally made a claim in these proceedings regarding this but that was later abandoned. On 5 August 2010 Mr Murray’s claim for shift penalties and allowances for the Narita posting was resolved internally.

6.

The current proceedings which have been brought by Mr Murray’s Union, ALAEA, claim that the first respondent and/or the second respondent took adverse action against Mr Murray in breach of s.340 of the FWA. It also claims that the first respondent and/or second respondent had taken action with the intent of coercing Mr Murray into not exercising his workplace rights, contrary to s.343 of the FWA. It is not in dispute that Mr Murray had workplace rights emanating from his workplace agreement, the EBA, and this included participating in processes under the workplace agreement and making complaints or inquiries in relation to his employment. It also included initiating dispute resolution procedures under the EBA and the filing with this Court of an application pursuant to ss.539 and 540 of the FWA. In these reasons I propose to deal first with the legal position relating to the burden and onus of proof in this type of proceeding and then with each of the separate allegations of contraventions of ss.340 and 343 of the FWA.

 

 

The allegation concerning future workplace postings

 

31.

In his amended application, the applicant states:

  • “The first respondent and/or the second respondent denied the employee any future possible international postings on the basis that the employee exercise or proposed to exercise [his workplace rights]. Denying this benefit to the employee injured him in his employment and/or altered his position to his prejudice and was adverse action taken against him.”

The applicant argues that when the first respondent, through its managers Mr Thompson and Mr Panagiotopoulis, stopped all overseas postings for LAMEs from Brisbane, Qantas altered Mr Murray’s position to his prejudice:

“This amounted to an adverse affection of, or deterioration in, the advantages enjoyed by Mr Murray before the conduct in question because he, along with all of the LAMEs at the Brisbane terminal, was denied a benefit of employment that other employees at other terminals enjoyed.
It also amounted to an adverse affection of, of deterioration in, the advantages enjoyed by Mr Murray before the conduct in question by adversely impacting upon his working relationship with his colleagues in Brisbane International Terminal. The applicant submits that the action was taken because Mr Murray was entitled to shift penalties and allowances under the agreement during his posting in Narita; he complained that those entitlements were not paid and he initiated a dispute resolution process under the agreement.”

32.

It will be recalled that Mr Murray raised the question of a discrepancy between what he was paid in Brisbane and under the Narita roster with Mr Thompson on 8 March. Mr Thompson referred him to Mr Cawthorne. On 11 March 2010 Mr Cawthorne sent an email to Mr Thompson which I shall set out in full because, over the protestations of Mr Kenzie QC, I have drawn an inference from this email, which I believe is reinforced by certain others, that there was a certain financial concern on the part of Qantas about the claims being made by Mr Murray. In the email Mr Cawthorne first makes a remark concerning a possible claim by Mr Hagan or Mr Harding for overtime and then there is the reference to Mr Murray and Mr Cawthorne’s view that he should be paid in accordance with the BNE roster. I think there is some significance in Mr Cawthorne resurrecting a posting that Mr Murray did in Honolulu some years prior and I infer from the email as a whole that Mr Cawthorne did not approve of Mr Murray’s claim.

  • “Mark,
  • As discussed I need A330 LMA support for NRT from 23 March, I believe Simon Hagen was interested as was Sean Harding. Happy to have either for as long as they can be released however expect that they will not be claiming OT etc on return. Do you want to have that conversation or should I?
  • FYI had a bit of a spat on the phone the other day with Luke Murray re claims that he worked hours in excess of his BNE roster and his shift penalty average was higher. I basically told him that I would not respond to his claims as his letter of posting stated that he would be paid per his BNE roster. I told him that he should carefully consider any future offers of OS posting before accepting. He said that he would discuss these matters “with the boys”. I should have mentioned (but didn’t) the week posting he did in HNL for JQ a few years ago where he would have worked a maximum of 16 hrs per week and was paid per his BNE roster. On return to BNE the company did not seek to recoup the 80hrs he “owed”. It’s a different matter when the balance is not in favour of the LAME.
  • Regards
  • Peter Cawthorne.”

33.

Mr Cawthorne’s email to Mr Thompson would not have been entirely surprising because Mr Honsa gave evidence that he had spoken to Mr Thompson on 10 March and Mr Thompson had said to him:

  • “However, unless I get clarification on the posting conditions for each Brisbane person who does a posting by them sending me an email to acknowledge the posting conditions, I am going to put a hold on all Brisbane staff carrying out these duties.”

Mr Thompson denies this conversation took place. Mr Honsa responded to cross-examination about it by indicating that he acted upon Mr Thompson’s request by verbally informing all the LAMEs who were prospectively to go on overseas postings that they had to send an email or speak to Mr Thompson themselves confirming that they were happy with their letter of posting. Mr Honsa, although he admitted to being a friend of Mr Murray’s was called by Qantas. He is not in a senior managerial role like Mr Thompson. I found his evidence to be given in a straight-forward and careful manner. I am satisfied that he correctly reported his conversation with Mr Thompson and that Mr Thompson was thinking of refusing to support secondments out of Brisbane as early as 10 March.

34.

On 20 March Mr Thompson sent an email to Mr Honsa and Mr Cawthorne. It refers first to a posting of another LAME to Singapore and then asks whether there is an agreed position on posting conditions referring to the differing opinions of Mr Cawthorne and Mr Murray. The second part of the email is addressed to Mr Cawthorne:

  • “Peter, maybe you need to have a conversation with Jeff to clarify your business expectations about these trips in general. Until I see a clear standard approach in accordance with this letter of posting for all, I am reluctant to give a blanket approval. Let me know what you guys resolve please.”

The reference to the business expectations seems to me also to be referring in a veiled way to the cost of sending LAMEs on overseas postings. On 25 March Mr Murray wrote to Mr Cawthorne with a copy to Mr Thompson and Mr Panagiotopoulis. The first part deals with the medical issue and it then goes on to say:

“As for the shift penalty issue, my L.O.P says that I will be paid as per my normal home base roster or calculated SDA, whichever is greater. When I noticed the anomaly between the rosters, I contacted the acting Service Delivery Manager, who gave me his assurance that I would be paid the higher of the two, as has been done previously. If you now choose to disregard this assurance, I guess that is your prerogative. The fact that you ticked the BNE roster box on my L.O.P. is irrelevant, because as you stated to me, you didn’t bother to calculate the SDA. I was also unable to compare the two as I didn’t receive a copy of the NRT roster until several days after I arrived in Japan.
From our previous discussion, I am left with the impression that the only reason you chose to dismiss my claim is because no one else has raised the anomaly previously, although I explained that I am the first person to be posted to NRT since the new roster was introduced. I don’t believe that you have the right to reject my claim without even checking its validity. On this basis I am initiating the Dispute Resolution Process in accordance with QF/ALAEA EA VIII S6.1.2, I suggest that we schedule a meeting with senior management to attempt to resolve this issue at your earliest convenience.
Regards,
Luke.”

Mr Murray also spoke to Mr Thompson on that day. He reports that Mr Thompson said to him:

“Although it is your right to do so, you should be aware that to make the problem go away my response will be to cancel future postings from Brisbane.”

Mr Thompson denies making those remarks and says that he wanted to put a hold on the postings so that:

“We could stop, look at the issue, and not inflame the situation by sending more people to a situation where they may not receive their full entitlements. This is consistent with action taken by Qantas in the past in respect of previous issues about roster problems from particular ports. I refer to my collection of the issues in Sydney when I was posted Sabah to fill gaps caused by those issues in paragraph 7 above [a reference to an incident in 2004 when assignments from Sydney were suspended when there was an issue about some overseas entitlements.”

35.

Mr Thompson then discussed the matter with Mr Panagiotopoulis on 26 March. He repeated that he believed Qantas needed to step back and see what was causing the issue. He suggested to Mr Panagiotopoulis that, in the meantime, no one should be sent overseas from Brisbane. At [21] of his affidavit, Mr Thompson deposes:

  • “After some further discussion, Mr Panagiotopoulis and I decided to temporarily suspend requests of postings from Brisbane in order to ensure that other employees were not disadvantaged on overseas postings.”

36.

Mr Thompson said he believed the problem could be resolved quickly and that he had no intention of permanently suspending postings from Brisbane and I fully accept both of those statements. What I find difficult to accept is the suggestion that there was some altruistic motive in the suspension of preventing disadvantage to Brisbane employees. I took this up with witnesses and with counsel during the course of the hearing and I am afraid that none of their responses convince me. I could not understand and I do not understand in what way Brisbane employees would be disadvantaged if it was the Qantas procedure laid down in the EBA that persons posted overseas would be paid the higher of their local shift allowances or the one which they worked whilst overseas. All it needed was to advise employees that the exact difference between the Brisbane allowances and the Narita allowances which were the subject of Mr Murray’s complaint had not yet been calculated and, therefore, there might be some delay in paying them any extra to which they were entitled. That would not disadvantage them in anyway. But the finding that I must make is whether I can infer an intention to injure Mr Murray in his employment by the making of that decision. It is not a breach of the WRA to make an illogical decision. Was it just poor management on the part of Mr Thompson and Mr Panagiotopoulis or was it some form of collective punishment for Mr Murray’s decision to institute grievance procedures?

37.

In his written submissions, Mr Slevin for Mr Murray quotes from Mr Thompson’s cross-examination:

  • “So in any event, you discussed that you had two claims. One of the claims was Mr Murray’s claim? We had two issues. I wouldn’t – yes.
  • Those issues were the reason that you made a decision to suspend the postings? No, not the specific issue. So allow me to repeat myself. I said we’d had a number of people over 20 years go away, no issues, no dramas. Everything worked fine. All of a sudden, two in a row we had different issues, but we had issues with the posting somehow. Well, what’s changed here? There’s something that needs to be fixed. Denis agreed. So let’s suspend that particular group of people while we fix those issues if we can do that; he agreed we should do that, so we did.
  • So you – – -? It was a collective decision.
  • So the reasons for the decision were the issues that had arisen recently; that’s the case, isn’t it, from what you’ve just said? Yes.
  • Yes. One of the issues that had arisen recently was Mr Murray had made a claim for certain entitlements. That’s the case, isn’t it? That was one of the two issues. Do you agree with that? Yes, yes.
  • And so part of the reason you made the decision was that Mr Murray had made some claims for his entitlements? Yes, yes.” [T123]

38.

Also on 26 March Mr Harding, a LAME who had accepted a posting in Narita from 9 April, rang Mr Cawthorne. He deposed that Mr Cawthorne said to him:

  • “All overseas postings out of Brisbane have been cancelled because the company is in dispute with Luke Murray and this will be the case until the dispute is resolved.”

Mr Harding was not called for cross-examination. And Mr Cawthorne in his cross-examination agreed with what he said.

39.

On 27 March Mr Honsa sent an email to Mr Thompson and Mr Panagiotopoulis cc’d to Mr Cawthorne:

  • “Gents
  • Can someone please advise me what is going on at the moment re Brisbane posting coverage in general. I need clarity for my manpower planning etc.
  • Mark I know we spoke yesterday on phone but I find it very hard to understand your position. Currently one of the Brisbane International engineers is in dispute with the company over his last posting. As I have only spoken briefly over the phone with him the only facts I have were that he was owed time due roster worked in Narita. I have not seen any roster so cannot comment. The engineer involved has had 12 RDOs placed on roster totalling 130hrs. I hear rumours that he is now requesting adjustments to his penalties etc due posting. This is between him and the company and should not affect other staff who do not have an issue with company but it has.
  • As per previous postings to Nagoya and Narita Barney Jones would advise me by email of any days owed because of hours worked on posting, I would then place these RDOs onto Bne Intl roster on mutually agreeable days. Issues with roster penalties etc are already covered by the standard company “Temporary Assignment Agreement” that each engineer signs prior to his posting. Refer page 4 of 6 under “Salary and other conditions” Pay as per SDA (Special Duties Allowance) in lieu of Home base roster. I know it may take time to work out which is best to use so we don’t end up in dispute but let me say for any staff from Brisbane LMO I am willing to do this calculation as long as I am supplied with the published posting port roster. I have done this before for International staff as their wage averaging is quite a lot lower than the current domestic 4 on 4 shift. Approx 10%.
  • I have advised staff who have been impacted by this dispute to email Denis and Mark with their own stand on this. This will allow you to make a [sic] informed decision on using Brisbane based staff for future postings.
  • Why the coverage of Noumea has been dragged into this I am at a loss. Since Brisbane took over most of the coverage of this port from Sydney we have had a very flexible group of 5 engineers covering each weekend.
  • Rosters are changed to allow coverage without any direct overtime and if needed very minimal backfill O/T. I have spoken with each engineer involved and they don’t have a problem with the current arrangement for Noumea coverage.
  • Regards,
  • Jeff Honsa.”[1]

The paragraph which commences with the words “I have advised staff” appears to me to be referring to Mr Honsa’s conversations with the staff about confirming to Mr Thompson that they understood and were happy with the letter of posting. Once again, I draw the inference that this was a pay issue. Mr Thompson wanted to be clear that the people going overseas were happy to be paid at the Brisbane roster rate and not at the Narita one. There was no reason proffered to me as to why, apart from this difference in the roster rates, Brisbane staff would not be used. In fact, the contrary is the case. Mr Thompson deposed that it was important that all the Australian engineering bases supported overseas postings. Mr Honsa’s remarks about minimal backfill overtime in Noumea also indicate concern about pay. The suspending of overseas postings to Noumea in addition to Narita when it was clear that the problem was because of the difference between the Narita roster and the Brisbane roster is also capable of raising the inference that the motive for the suspensions was other than the intention not to inflame the situation by sending people to a situation where they may not receive their full entitlement.

40.

On 27 March 2010 Mr Murray spoke with Mr Honsa. Mr Honsa told him about the suspension of relief postings from Brisbane and suggested that Mr Murray’s workmates would not be happy and that the Sydney managers might overlook Mr Murray for future postings. From the witness stand, Mr Honsa told the Court that he differentiated between advice that he gave in his position as a DMM, as a union representative and as a friend. I think that any advice he gave to Mr Murray on this occasion was given to him as a friend and I would not propose to use this conversation to influence my views as to what Qantas’ motives might have been. On the other hand, on 27 March 2010 Mr Ryder sent an email to Mr Cawthorne and Mr Thompson about his planned posting to Narita in May. Mr Cawthorne responded on 28 March:

  • “…[o]ne of your fellow LAMEs has chosen to raise a grievance with the AlAEA in relation to a posting to NRT which he is quite entitled to do, however, as such, until the grievance is resolved or withdrawn, we cannot expect anyone else from BNE to commence an overseas posting. Following the outcome of the grievance resolution we may need to look at how and with whom we support any offshore ops.”

Although that email was copied to Mr Thompson and Mr Panagiotopoulis and although they suggested that they had not authorised the last sentence, they did nothing to inform the workforce that this was an incorrect understanding of Qantas’ attitude to the grievance.

41.

Mr Panagiotopoulis gave evidence supporting Mr Thompson’s approach to the suspension. However, he accepted that Mr Thompson was the driving force behind the proposal and he agreed to it rather than proposed it himself. I am quite satisfied that, once Mr Panagiotopoulis came onto the scene and spoke with Mr Murray, the grievance was on its way to being settled, although the eventual payment was not made until August. Looking at the evidence as a whole, I cannot be satisfied with the explanations put forward by the Qantas witnesses that the making of the claim by Mr Murray and the instigation of the grievance procedure was not at least part of the reason for suspending overseas postings, not only to Narita but also to Noumea from Brisbane.

42.

Did the suspension injure Mr Murray in his employment or alter his position to his prejudice? The respondent argues that there was no way that Mr Murray was likely to be going on a secondment during the period in which the suspension was operative because he had just been away and had been put at the bottom of the list. I do not think that is a correct way to articulate the test. Mr Murray was a LAME in Brisbane whose employment provided him with a number of benefits one of which was the opportunity to volunteer for overseas postings. That benefit was removed by the decision to suspend postings to everyone. When the suspension was put in place, there was no temporal limit, whatever Mr Thompson’s intentions may have been. Mr Murray may have been the person at the back of the list but it was not a very long list and other persons may well have had reasons why they did not wish to undertake such a posting at a particular time. Mr Murray had the benefit of being able to apply for an overseas posting on 24 March 2010 but not on 26 March. To my mind, his employment was adversely impacted by the decision and he was thereby injured or, at the very least, had his position altered to his prejudice which was the alternative way in which the action was pleaded.

 

The coercion complaints

 

47.

The preceding paragraphs deal with the applicant’s claims of breaches of s.340 of the FWA. The application then proceeds to make claims under s.343. The first claim is that:

  • “The second respondent verbally abused the employee for exercising workplace rights described in 2(1) above. Abusing the employee was done with the intent of coercing the employee into not exercising his workplace rights.”

 

52.

I have already noted that I am not convinced that the telephone conversation constituted verbal abuse. However, the conversation could be described as intimidating because of the manner in which Mr Cawthorne expressed himself (his raised voice) and the final threat which I have found to have been made:

  • “The guys who go away and accept the conditions that they are given are the ones who get asked to go away next time.”

In regard to the first of the two elements of coercion, it seems to me that the final threat was one to “take away something Mr Murray then possessed”, that being the untrammelled right to apply for future secondments if he continued his claim for additional benefits. But was the action unlawful? Prior to preparing these reasons it occurred to me that, if I accepted Mr Murray’s evidence, the actions of Mr Cawthorne could be said to have discriminated between him as an employee who was exercising his workplace rights and other employees who did not exercise their workplace rights when they went on secondment. Because I had not been specifically addressed as to this question, I wrote to the parties and asked them to make submissions. Not unexpectedly, the applicant responded that he accepted the Court’s assessment of the position, including that the alleged discrimination constituted the unlawful conduct. The applicant’s submissions then went on in considerable detail to argue that, although this discrimination had not been specifically pleaded, it had been a matter that was brought up at the hearing and thoroughly argued so that it could be the subject of a finding by the Court even though an amendment of pleadings had not been sought. The applicant cited a decision of Cameron FM in Fair Work Ombudsman v Centennial Financial Services Pty Ltd & Ors [2010] FMCA 863 where his Honour reviewed the authorities including Downey v Acting District Court Judge Boulton (No 5) [2010] NSWCA 240; see Sabag v Health Care Complaints Commission [2001] NSWCA 411; Maloney v Commissioner for Railways (NSW) (1978) 52 ALJR 292; Water Board v Moustakas [1988] HCA 12; (1988) 180 CLR 491 and Banque Commerciale SA, en Liquidation v Akhil Holdings Ltd [1990] HCA 11; (1990) 169 CLR 279 at 286-287.

53.

I take from these authorities that, where all relevant acts or omissions have been clearly identified in the proceedings and have been thoroughly litigated, it may not lie in the mouth of a respondent to argue that, as those matters were not pleaded, they cannot be taken into account. In Banque Commerciale SA, en Liquidation v Akhil Holdings Ltd (supra) Mason CJ and Gaudron J said:

  • “Accordingly, the circumstances in which a case may be decided on a basis different from that disclosed by the pleadings are limited to those in which the parties have deliberately chosen some different basis for the determination of their respective rights and liabilities. …”

In the instant case, the respondents point to the fact that it was not directly suggested that discrimination could constitute the unlawful element of the prohibited coercion. The respondent points out that:

“Had the case of alleged discrimination been pleaded in the way contemplated in the letter, the focus of the evidence and questioning may well have been upon the other employees, some of whom were witnesses and were not required for cross-examination given the nature of their evidence and the nature of the case as pleaded.”

54.

Having read the transcripts, I am satisfied that the issue of discrimination did not arise for discussion during the hearing. If discrimination had been specifically pleaded or raised at the hearing, the respondent may well have had to consider what constituted the unlawful element within it. Discrimination on the basis of race, age, sex or disability is clearly unlawful under Commonwealth legislation but it is not alleged that this discrimination was based on any of those matters. The Commonwealth legislation is difficult and a party defending such an action would be entitled to argue that what occurred does not fall within the definition of “less favourable treatment”. What might seem a simple matter on first consideration later proves to be complex. I am not satisfied that the applicant pleaded or brought this issue within the confines of the case at trial and I would not be prepared to grant any amendment to plead it now. The case has been completed.

55.

In my discussion of the applicant’s first claim under s.340, I indicated that Mr Cawthorne’s treatment of Mr Murray and the veiled threat that, if he pursued his claim, he would not be selected for future postings might be considered action which altered the position of the employee to his prejudice. This, in turn, would provide sufficient grounds for concluding that Mr Cawthorne’s actions were unlawful in the context of the FWA and that he had, therefore, exerted an illegitimate form of pressure on Mr Murray. Although this was not specifically pleaded by the applicant, either in relation to 1(a) or 2(a) of the Amended Application filed on 6 August 2010, I am satisfied that the relevant acts were clearly identified in the proceedings and thoroughly litigated. It is also relevant that the respondent did not ask for particulars of the coercion claim in their request for particulars date 7 June 2010 (exhibit C).

56.

I think Mr Cawthorne’s intemperate words to Mr Murray did alter his position to his prejudice in the sense explained by their Honours in Patrick Stevedores (supra). The fact that the conversation was witnessed by two of Mr Murray’s colleagues meant that his status was comparatively reduced and the threat of adverse affection or deterioration in the advantages enjoyed by Mr Murray unless he chose not to exercise his workplace right was clearly adverse action (I note that the meaning of adverse action extends to the threat to take adverse action under s.342(2); see also Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2010] FCA 590).

57.

I am satisfied that the threat to prevent Mr Murray going on future postings was an attempt to bring illegitimate pressure on Mr Murray to prevent him from further pursuing his claim. Mr Cawthorne’s threat and the intimidatory manner in which it was delivered indicate an intention to coerce. I am satisfied that all of the elements of the civil remedy provision have been found to exist. I do not accept an argument that the coercion is nullified by the fact that Mr Murray was well down the list of persons likely to be chosen for a posting for the reasons explained at [41].

 

Brisbane Barrister – David Cormack

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