Industrial Relations Commission of New South Wales CITATION : Construction, Forestry, Mining and Energy Union, New South Wales Branch (On Behalf of B Winiorczyk and others) v Ace Scaffolding Pty Ltd [2004] NSWIRComm 13 PARTIES : Construction, Forestry, Mining and Energy Union, New South Wales Branch, Construction & General Division Ace Scaffolding Pty Ltd FILE NUMBER: IRC 1912 of 2003 CORAM: Harrison DP CATCHWORDS : Application for relief from victimisation prsnt to s 213 of the Act - finding of victimisation - retrenchment device to disguise victimisation - Finding in favour of applicants - Quantum of compensation to be argued in further proceedings. LEGISLATION CITED : Industrial Relations Act 1996 Smith and Others v Moore Paragon Australia Ltd Davis v Amalgamated Television Services Pty Limited [1998] 81 IR 364 CASES CITED : Tapia v Lagoon Seafood Restaurant [1999] 89 IR 436 Briginshaw v Briginshaw (1938) 60 CLR 336 Jones v Dunkel (1959) 101 CLR 298 HEARING DATES: 10/07/2003; 10/08/2003; 10/09/2003; 12/05/2003 DATE OF JUDGMENT: 02/16/2004 APPLICANT Ms. S Sullivan CFMEU LEGAL REPRESENTATIVES: RESPONDENT Counsel Mr R Warren JUDGMENT: 30 INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: HARRISON DP Monday, 16 February 2004 Matter No IRC 1912 of 2003 cONSTRUCTION FORESTRY MINING AND ENERGY UNION, Construction and general division, NEW SOUTH WALES BRANCH (ON BEHALF OF brett winiorczyk and others) AND ace scaffolding pty ltd Application for relief from victimisation pursuant to section 213 of the Industrial Relations Act 1996 DECISION [2004] NSWIRComm 13 1 This is an application for relief pursuant to s213 of the Industrial Relations Act 1996 ("the Act") filed by Construction, Forestry, Mining and Energy Union (New South Wales Branch) (CFMEU) on 4 April 2003. The application is filed on behalf of Brett Winiorczyk, John Richardson and Ben Auchter, the members whom the CFMEU alleges were victimised in their employment by Ace Scaffolding Pty Ltd, the respondent. 2 This matter was first before Mr Commissioner Redman on 29 April 2003. Applications pursuant to s84 of the Act filed on behalf of Messrs Richardson, Auchter and Winiorczyk arising from the termination of their employment were also before Commissioner Redman in April 2003. The Commissioner disqualified himself from further proceedings on the basis that he had made findings in respect to Mr Winiorczyk in Matter No IRC 6363 of 2001 and accordingly formed a view that in order to avoid any apprehension of bias he should not hear further proceedings involving that applicant. 3 The matters were referred to his Honour Wright J, President, for his consideration and subsequently reallocated to the Commission as presently constituted. 4 The matter was then subject to Directions on 16 May 2003 and subsequently Hearing re acceptance of application out of time on 23 May 2003. 5 On that occasion Ms S Sullivan appeared on behalf of the CFMEU with Mr P Harris. Mr A Brown of the Newcastle Master Builders Association (MBA) appeared on behalf of the respondent with Mr Zeitsch and Mr Fletcher. 6 The substance of those proceedings was an objection by the respondent to acceptance of the application pursuant to s213 of the Industrial Relations Act 1996 ("the Act") out of time. 7 Employment was terminated on 25 February 2003 giving rise to the applications pursuant to s84 of the Act filed within the 21 day period prescribed by s85(1). Ms Sullivan submitted that on review of the matters she concluded that prosecution pursuant to s 210 was more appropriate and filed the instant application on 4 April 2003, 17 days in excess of the 21 day requirement of s213(3). The CFMEU seeks an exercise of discretion to admit the application out of time pursuant to s213(4) of the Act. 8 An extempore decision was issued in the following terms (TR pp 28 and 29): HIS HONOUR: …. … the exercise of discretion to admit an application out of time has, since the delivery of the Judgment in Brisbane South Regional Health Authority and Taylor by the High Court per McKew J, being directed by those principles as they are enunciated. It is an exercise of discretion by the Commission in which the Commission is required by the statute to consider the reason for and the length of delay in making the application. In the circumstances of this case, I regard the reason to be reasonable and acceptable and the length of delay to be minimal. The Commission is further required to consider any hardship that may be caused to the Applicant, or other party. There is no consideration of hardship to the Applicant, as the Applicant seeks an exercise of discretion by the Commission to admit the application. The rejection of the 213 application, would, on balance, I think, provide minimal hardship to the Applicant. As Ms Sullivan puts to me the issues to be litigated are the same as those before the Commission pursuant to applications under section 84 of the Act. In considering hardship to the Respondent Mr Brown has failed to make out any particular case for hardship to the Respondent in defending the charges, preferring to concentrate his submissions on hardship arising from losing the case. They are separate and distinct issues. The issue I am required to consider, in the exercise of this discretion, is the hardship that arises from defending the case. I find no hardship in defending the case as they are the same issues as will be defended, or need to be defended, in the section 84 applications, the employer being on notice in respect to those issues within the statutory time limited. Consideration of the conduct in relation to which the Order is sought, is unhelpful in the present circumstances, as that conduct is substantially disputed. That will be subject of the litigation. ……. ….on balance the issues of public interest and justice are served by an exercise of discretion in this matter to admit the application out of time. I so exercise my discretion. I admit matter number 1912 of 2003, and so determine. 9 The CFMEU sought leave to withdraw the applications pursuant to s84 and proceed with this application. This course was opposed by the MBA. The opposition of the MBA was not accepted. The application to withdraw the s84 applications was allowed. 10 Directions were subsequently issued to bring the instant proceedings to hearing on 18 through to 26 August 2003. As a result of circumstances beyond the control of the parties, proceedings were rescheduled to 7, 8, 9 October 2003. In the event the matter could not be completed on that timetable, the matter concluding with submissions on 5 December 2003. 11 Ms S Sullivan appeared on behalf of the CFMEU and brought evidence from Mr D Grieve, then Branch Manager of the Muswellbrook branch of Sherrin Hire Pty Ltd but at the relevant time, Branch Manager for the respondent; Mr Auchter; Mr Richardson; and Mr P Harris, an elected official of the CFMEU based in the Hunter Region as an Organiser. 12 Mr Warren of Counsel appeared on behalf of the respondent. Mr Warren brought evidence from Mr P Zeitsch, Managing Director and founder of the respondent. 13 Mr Winiorczyk was not called to give evidence and the matter not pursued in respect to him. THE LEGISLATION 14 It is useful to state the relevant aspects of Chapter 5 Part 1 of the Act at this point: 209 Freedom of association (1) A person is entitled to be a member of an industrial organisation, but can be prevented from becoming or remaining a member by the organisation acting under its rules and in accordance with section 260. (2) A person cannot be compelled to become, or remain, a member of an industrial organisation. 210 Freedom from victimisation (1) An employer or industrial organisation must not victimise an employee or prospective employee because the person: (a) is or was a member or an official of an industrial organisation of employees or otherwise an elected representative of employees, or (b) does not belong to an industrial organisation of employees, or holds a certificate of conscientious objection to becoming a member of such an industrial organisation, or (c) refuses to engage in industrial action, or (d) exercises functions conferred under this Act, or (e) claims a benefit to which the person is entitled under the industrial relations legislation or an industrial instrument, or (f) informs any person of an alleged breach by an employer of the industrial relations legislation or of an industrial instrument, or (g) participates, or proposes to participate, in proceedings relating to an industrial matter, or (h) engages in, or proposes to engage in, any public or political activity (unless it interferes with the performance of the employee's duties), or (i) informs any person of an alleged breach of the Protection of the Environment Operations Act 1997 by an employer, or (ia) informs any person or body of, or gives evidence in relation to, a notifiable occurrence within the meaning of the Rail Safety Act 2002 , or (j) makes a complaint about a workplace matter that the person considers is not safe or a risk to health, or exercises functions (as a member of a committee or otherwise) with respect to workplace consultation conferred under Division 2 of Part 2 of the Occupational Health and Safety Act 2000 , or (k) assists the Independent Pricing and Regulatory Tribunal or Scheme Administrator in the exercise of its functions under the Electricity Supply Act 1995 . (2) In any proceedings under section 213 to enforce the provisions of this section, it is presumed that an employee or prospective employee who suffers any detriment as a result of action by the employer or industrial organisation was victimised because of a matter referred to in subsection (1) that is alleged by the applicant to be the cause of the detrimental action. That presumption is rebutted if the employer or industrial organisation satisfies the Commission that the alleged matter was not a substantial and operative cause of the detrimental action. 213 Enforcement (1) The Commission may, by order, enforce the provisions of this Part on the application of an industrial organisation or by any person affected by a contravention of this Part. (2) The Commission may, in particular, for that purpose do any one or more of the following: (a) order the reinstatement or re-employment of an employee, (b) order the employer to promote or otherwise advance an employee in his or her employment, (c) order the employer to pay an employee or prospective employee the whole or any part of the amount of remuneration or other financial benefits lost or foregone, (d) order the employer to employ a prospective employee, (e) order the employer not to carry out a threat to victimise an employee or not to make any further such threat, (f) order an industrial organisation (or its officials or employees) to take any particular action or to cease any particular activity, (g) make consequential orders (including orders concerning continuity of service). (3) An application for an order under this section must be made within 21 days after the contravention concerned. (4) The Commission may accept an application that is made out of time if the Commission considers there is sufficient reason to do so, having regard in particular to: (a) the reason for, and the length of, the delay in making the application, and (b) any hardship that may be caused to the applicant or other party if the application is or is not rejected, and (c) the conduct in relation to which the order is sought. 214 Application of Part This Part applies despite anything to the contrary in an industrial instrument. CONTENTIONS 15 The application contends that each of the members were victimised within their employment as a consequence of them joining the CFMEU and seeking payment from the respondent in accordance with the award. The CFMEU contends that the form of victimisation was dismissal from their employment. 16 The respondent contends that each of the applicants were discharged from employment as a result of a downturn in the respondent's business operations and were paid redundancy entitlements in accordance with the Building and Construction Industry (State) Award 327 IG 279. THE EVIDENCE 17 Mr Auchter and Mr Richardson were employed by the respondent on the construction of the Mount Arthur North coal mine pursuant to the Mount Arthur North Consent Award 2001 ('the Award') 336 IG 690. 18 The evidence of Mr Richardson is given by statement (exhibit 4) and orally. 19 Mr Richardson deposed that he was employed by the respondent as a scaffolder from 20 February 2002. His evidence is that he was inducted to work on the Mt Arthur North site ("the site") in March 2002 and on that occasion first saw a copy of the Award and was informed at the induction that all employees on site should be paid in accordance therewith. Mr Richardson deposed that he was paid the amount of $25 per hour for each hour worked with no reference to the Award and that there was no payment of superannuation entitlements to the Australian Construction Industry Redundancy Trust (ACIRT). 20 Mr Richardson further deposed that excess fares and travel were not paid in accordance with the Award, rostered days off (RDO's) were not accrued, meal allowances were not paid, and work in excess of 38 hours per week was paid without calculation of overtime penalty. 21 Mr Richardson deposed that shortly after his commencement on site in March 2002 he joined the Australian Workers' Union, New South Wales (AWU) and provided a payroll deduction authority to the respondent for the payment of union membership fees. Mr Richardson's evidence is that a short time thereafter Mr R Sanson, then State Manager for the respondent, attended the site and held a meeting of all employees of the respondent. Mr Richardson deposed that Mr Sanson was angered that employees had joined a union and during the course of a heated exchange in which Mr Sanson was reminded that he had no right to question whether individuals joined a union, stated: "I am the boss, I can do what I like"; and, "O.K. then, I am looking at paying the site fee rather than letting you join the union"; and, "We're looking at walking away from this job anyway because all this is such a hassle". 22 Mr Richardson deposed that apart from joining the union he had not raised any issues with the union, nor sought representation, though had referred his concerns in respect to payment in accordance with the Award to the site supervisor, Mr Daniel Grieve. 23 Mr Richardson's evidence is that he continued to work at the site in March and April 2002 then was deployed to other sites in the Hunter Valley for brief periods prior to returning to Mt Arthur North in July 2002 to work on a contract secured by the respondent with H&M Manufacturing Pty Ltd (H&M) on that project. 24 Mr Richardson deposed that the issue of appropriate payment in accordance with the Award was again raised by the H&M union delegate and by him with Mr Grieve. 25 Mr Richardson deposed that on the H&M job he joined the CFMEU and informed the local organiser, Mr Lawler, and Mr Harris of the differences between the Award and the payment received. Mr Richardson deposed that he was informed that Mr Harris pursued the issue on his behalf with Sinclair Knight Merz (SKM), the principle contractor. 26 Mr Richardson's evidence is that subsequently he was approached by Mr Fletcher and Mr Grieve who first asserted that he had been overpaid an amount of $3,000 in the previous six months and requested he sign a document attesting that he was content with his entitlements and was being paid correctly. Mr Richardson refused and asked if he could take a copy of the document with him. This request was refused. At para 26 of exhibit 4 Mr Richardson deposed: " Daniel said "No, it's got to be signed by 10am tomorrow". Fletcher said, "Do you realize that this could be the end of Ace Scaffolding in the Hunter". I said, "That's not my problem, I didn't cause this. He looked at me and said, "Don't you want your job, then?" 27 Mr Richardson's evidence is that he understood that SKM were withholding progress payments to the respondent until satisfied that the respondent was paying in accordance with the Award and understood the respondent was asking him to sign a false declaration to be provided to SKM. 28 Mr Richardson deposed that he was not required to work at the site shortly after this incident. Mr Richardson deposed that he returned to the site a short time later and was interviewed by Mr Mills and Mr Punter, officers of SKM, concerning the application of the Award. Mr Richardson's evidence is that he informed them of the payment arrangements which were inconsistent with the Award requirements and was informed that they would investigate the matter. Mr Richardson deposed that he continued to work at the site until January 2003 and that subsequent to a further meeting convened by the Labor Council of New South Wales ACIRT and meal allowances were "back paid". 29 Mr Richardson deposed that a further meeting was held towards the end of January 2003 at the respondent's Tomago office. Mr Richardson's evidence is that that meeting failed to take place as a result of the refusal by Mr Zeitsch to accept the representation of the CFMEU on behalf of the employees concerned. A further meeting was convened a week later, the respondent again refusing to admit an official of the CFMEU. As a result of some discussion between Mr Richardson and Mr Zeitsch a further meeting was scheduled a few days later in which the issues of contention were examined. Agreement was achieved to the payment of holiday loading, however, claims in respect to travel allowances, meal allowances, application of 38 hour week and accrual of RDO's was refused. Mr Richardson's evidence is that there was a further meeting a week later which Mr Sanson attended, which he deposed repeated much of the previous meeting without further resolution. Mr Richardson's evidence at para 44 of exhibit 4 is in the following terms: " On more than one occasion, Zeitsch said words to the effect, "let's try and sort out this pay stuff between ourselves without the Union or without it going to Court. If it has to go to Court I can tell you that the result won't be what you blokes want". 30 Mr Richardson deposed that subsequent to this meeting there was little work available at the site and enquiries were made as to the availability of work from the Newcastle branch of the respondent, which was understood to have plenty of work. Mr Richardson's evidence is that he was informed that they were not required by the Newcastle branch which had contractors meeting its requirements. 31 Mr Richardson deposed that he had a telephone discussion with Mr Zeitsch during the course of that week and was informed that he may have to look at taking holidays. 32 Mr Richardson's evidence is that there were further meetings with Mr Zeitsch in which he raised the matter of sub-contractors. Mr Richardson deposed that he was informed by Mr Zeitsch that the contractors were in regular engagement by the respondent and then his attention was directed to an advertisement by the respondent seeking expressions of interest from persons to become contractors to the respondent in a range of classifications. 33 Further meetings took place between the employees, the respondent and independently between the employees and the CFMEU which on the evidence of Mr Richardson were unproductive in regard to resolution of entitlements with the respondent, resulting in a decision by him and other employees to refuse further discussion and have the CFMEU pursue the matter on their behalf . 34 Mr Richardson gives the following evidence at paras 53, 54 and 55 of exhibit 4 of conversations with Mr Sanson which led him to the conclusion that as a consequence of his activities in seeking recovery of wages, application of the Award and involvement of the union, he was regarded adversely by the respondent and his employment would be terminated accordingly. 53. When I first joined the CFMEU I rang a few other branches of Ace Scaffolding to see if any other blokes were interested in signing up. This fact came to Ricky Sanson's attention. At a conversation I had with Sanson in relation to a safety breach at Mt Arthur, I recall that he said to me words to the effect, "You are responsible for all this Union trouble". It is my belief that the Company has held vocal Union members and me responsible for its industrial and commercial problems in the recent past in the Hunter region. 54. When Ace first were called to account to the Mt Arthur Project Award by SKN, I had a conversation with Ricky Sanson. He said, "Why do you complain to the Union, you get above award pay". I replied, "It's not just me, it's all the other blokes that you don't pay above award, or that you pay below award. I've got the most to lose and the least to gain out of all this. All I am doing is telling the truth. If this ends up in Court, I'm not going to lie for anyone". 55. I believe the Company regarded me and other Union members as "instigators", and resolved to terminate my employment and replace us with labour hire workers or contractors. 35 The evidence of Mr Auchter is that he was employed as a scaffolder by the respondent in March 2001. 36 Mr Auchter adopts the evidence of Mr Richardson in respect to material events, in particular the evidence in regard to Mr Sanson's reaction to union membership, the issue of wages and attempts to achieve Award payment and recovery of underpayments, deposing that he was present with Mr Richardson on those occasions. 37 Mr Auchter declined to sign the document, also referred to by Mr Richardson, to the effect that he was content with his payment on the site. Mr Auchter's evidence is that he sought to consider his position overnight and on that evening received a call from Mr Grieve, the Site Manager, exhorting him to sign the document to avoid unfavourable consequences to his employment. 38 Mr Auchter described subsequent events in his statement of evidence (Ex 3) in the following terms: I2. I recall that the Company was put off the site at Mt Arthur North for a short while after the above meeting. I3. Eventually we went back to Mt Arthur and we worked there till January 2003. We were fixed up for our entitlements. I4. I attended four meetings after this between the workers and the Company where we continued to put our position about being paid by the Award. We tried to involve the Union who had done the calculations but the Company would not allow the Union to participate. Bob Cochrane was turned away from the meetings by the Company. The Company threatened to call the police on him on one occasion. John Richardson and Ray Lumby attempted to negotiate for us at the meetings but got nowhere. I5. I was terminated by Ace on 25 February 2003. I believe that I was terminated for being a Union member and continuing to argue for my industrial rights. I saw advertisements put on noticeboards by the Company advertising for people to become independent contractors. My job still exists. Independent contractors and labour hire workers are doing it. 39 The evidence of Mr Harris confirms his involvement in representation on behalf of Messrs Richardson, Auchter and others in respect to underpayment of wages at the site and other locations. 40 Mr Harris' evidence details a number of meetings, discussions and correspondence between the parties and involvement of officers of SKM at the site and the Newcastle Trades Hall Council in efforts to resolve the matter. 41 Mr Harris deposed that he formed the view that the respondent deliberately extended and frustrated discussion as it had devised a strategy to terminate the employment of those workers pressing claims. Mr Harris testified that at the time of termination of Messrs Richardson and Auchter's employment he was advised by Mr Fletcher that they were shutting the Mt Arthur North facility. Mr Harris deposed that at the time he was aware that the respondent continued to work a number of sites in the Newcastle metropolitan area and that within a week of the terminations of employment taking place, the respondent had brought sub-contract labour from Sydney to replace those employees terminated who would normally have done the work. 42 The evidence of Mr Grieve is in the form of a witness statement filed on 24 June 2003 (Ex 2). 43 Mr Grieve's evidence is that he was Branch Manager for the respondent from March 2002 until his resignation from that position in December 2002. During that time he reported to Mr Sanson, the State Manager, and Mr Zeitsch. Subsequent to his resignation Mr Grieve obtained employment as the Muswellbrook Branch Manager of Sherrin Hire Pty Ltd, described as a major national supplier of equipment and labour to the construction industry and a direct competitor to the respondent. Mr Grieve held this position at the time he deposed his statement and during the course of oral evidence. 44 Mr Grieve's evidence is that prior to him taking up the position of Branch Manager for the respondent he had provided a previous manager with a copy of the Award as the relevant industrial instrument. Mr Grieve deposed that when he took over from that manager he found that no arrangements had been made to pay in accordance with the Award. 45 Mr Grieve deposed that he was present at a meeting in early 2002 when Mr Sanson "took the workers to task for joining the Union"; and supports the version of that event as given by Mr Richardson in points 9, 10 and 11 of Ex 4, described above. 46 Mr Grieve gave evidence of representations by Mr Richardson in respect to payment in accordance with the Award. Mr Grieve deposed that he regarded such matters were the responsibility of Mr Fletcher, in his capacity as Human Resources Manager. Mr Grieve's evidence is that he informed Mr Zeitsch of the claims. Mr Grieve deposed Mr Zeitsch informed him that the hourly rate paid to Mr Richardson should accommodate any additional entitlements. Mr Grieve's evidence is that Messrs Richardson and Auchter were paid above the Award in recognition of additional skills and experience and that these rates had not applied to other employees; and to his knowledge were not meant to cover overtime, site payments or the like. 47 Mr Grieve deposed that Mr Zeitsch did not regard himself as liable to pay additional entitlements, subsequently objecting to payment of annual leave loading and superannuation payments to ACIRT as required by the Award. 48 Mr Grieve's evidence confirms the subsequent involvement of SKM over requirements for proof of payment and the withholding of progress payments from the respondent by SKM pending compliance. 49 Mr Grieve deposed that Mr Fletcher had informed him that the respondent had decided to pay its industrial obligations and continued working at the site, though he was never made aware of when, or in fact if, this took place. 50 Mr Grieve's evidence in respect to Messrs Richardson, Auchter and others being asked to sign a document to the effect that they were content with their payment and their refusal to do so is consistent with the evidence of Messrs Richardson and Auchter. 51 Mr Grieve deposed that Mr Sanson was anxious that the documents be signed and pursued him in that regard, ultimately reprimanding Mr Grieve for not obtaining the signed documents. 52 Mr Grieve deposed that Mr Zeitsch had indicated to him during the course of a telephone discussion that he intended to "use the workers' willingness to sign as a way of working out what he called the troublemakers". Mr Grieve deposed that he was given the understnading that if a worker did not sign his job was in jeopardy and accordingly Mr Grieve gave advice to Mr Auchter as deposed by him, intending to convey "as a friend" that his job may be on the line if he did not sign. 53 Mr Grieve deposed that the respondent's approach to its industrial relations obligations worried him from the outset of his employment and that he had conveyed his view to Mr Zeitsch on more than one occasion. 54 There is a further attendant matter of serious concern in relation to the evidence of Mr Grieve. Exhibit 1 is a copy of Mr Grieve's witness statement dated 23 June 2003. The copy does not carry the Registry filing stamp of 24 June 2003. The document carries a facsimile transmission date of 11 September 2003. The evidence of Mr Grieve is that this copy of the statement came to him from his superior in the Brisbane office of Sherrin Hire having been sent there by facsimile ("fax") from the Tomago office of the respondent at 14:44 on 11 September 2003. Ms Sullivan submitted that the transmission of Mr Grieve's statement to his current employer was a scurrilous and improper attempt to intimidate Mr Grieve as a witness in these proceedings. 55 Mr Zeitsch denied any knowledge of the transmission but could not deny that it had been sent from his Tomago office. Mr Zeitsch's evidence is that there is open access to fax machines at the Tomago office and that the transmission could have been undertaken by any number of persons, known or unknown. The evidence of Mr Zeitsch is that the National office and NSW State office are located at Tomago on separate floors of the same building. Each office has separate facilities and each has its own fax machine. The extent of interchange of staff between offices and access to particular fax machines is difficult to determine from the evidence. The evidence suggests that the fax to Sherrin Hire was sent from the National office fax. 56 In dealing with exhibit 1 Mr Warren noted that it does not carry a Registry stamp of the filing date as found in exhibit 2, and is in a different typeface to exhibit 2, giving rise to a question as to whether exhibit 1 had ever come into the respondent's possession on the basis that directions in these proceedings required the CFMEU to file and serve, the usual practice being that stamped copies are served subsequent to filing. 57 Mr Warren submitted that exhibit 1 could just as easily have been mischievously sent by someone attempting to assist the CFMEU case by creating an opportunity to raise the spectre of interference with a witness. Mr Warren submitted that in the absence of proof of a far higher standard than is available in these proceedings, no positive finding could be made and no conclusion whatsoever contrary or detrimental to the respondent with respect to this issue. 58 There is insufficient evidence and inadequate investigation to allow a conclusion in these proceedings. I regard the matter as most serious and accordingly refer the circumstances and relevant transcript to the Director of Public Prosecution for investigation and such action as appropriately determined. 59 The evidence of Mr Zeitsch is found in his statement, exhibit 6. Mr Zeitsch deposed that he commenced the business known as Ace Scaffolding in 1990 and that he is responsible for all aspects of the operation. At the time of deposition of his statement, 22 July 2003, the respondent employed in excess of 100 persons throughout New South Wales, Victoria, and South Australia with several operational sites. 60 Mr Zeitsch deposed that the Mt Thorley branch was established in 2000 on successfully securing a large contract at the Redbank Power Station construction site. In exhibit 6 Mr Zeitsch provided a chronology of what he refers to as the life cycle of the Mt Thorley branch ending in February 2003. 61 The Mt Thorley branch commenced with some 6 to 10 scaffolders who worked on the Redbank project throughout 2000. In early 2001 work commenced on other sites in the Hunter Valley, mainly coal mines which were part of the Coal & Allied Group, and subsequently the Mt Thorley construction project. 62 There was continual growth throughout 2001. Mr Zeitsch's evidence is that in November 2001 the respondent's management were called to a meeting with Coal & Allied to discuss poor safety performance across their sites and by January 2002 lost its single supplier status to Coal & Allied and was given a last warning over safety performance of employees, which Mr Zeitsch exampled as "sleeping on the job". 63 Circumstances continued to deteriorate until May 2002, when the respondent was excluded from all work on the Hunter Valley No 1 coal mine due to another safety breach. In June 2002 Coal & Allied called for new scaffolding tenders and throughout the balance of that year work for Coal & Allied continued to reduce. 64 Mr Zeitsch deposed that by September 2002 the Mt Thorley branch had experienced a forty percent reduction in revenue. Mr Zeitsch confirmed that in November/December 2002 a dispute had arisen at the site concerning payment in accordance with the Award. Mr Zeitsch deposed that on 13 December 2002 he received correspondence from Mr Cochrane of the CFMEU invoking s127 of the Act which conveys liability for employee entitlements to the principle contractor and affords a discretion to the principle contractor to withhold payment due to the sub-contractor pending proof of compliance. Mr Zeitsch deposed that following this event work at the site began to rapidly decline. 65 Mr Zeitsch deposed that in February 2003 he undertook a review of the respondent's entire operation and a decision was made to cease the provision of all scaffolding labour at the site from the Mt Thorley branch and consequently Messrs Richardson and Auchter and a Mr Purvis were made redundant on 25 February 2003. Mr Zeitsch deposed that four scaffolders were retrenched from the Newcastle and Gosford branches on the same date, putting that selection for those redundancies was on the basis of seniority, which was not applicable at Mt Thorley as all employees were retrenched from that operation. Mr Zeitsch deposed that so far as he was aware, of the seven employees made redundant on 25 February 2003, four were union members and three were not. 66 Mr Zeitsch's evidence is that at this time nine employees of the respondent had unresolved claims for outstanding wages, including four of the employees retrenched. Mr Zeitsch deposed that one of the four retrenched employees with an unresolved wages claim was later offered and accepted re-employment as a consequence of a subsequent increase in available work. 67 Mr Zeitsch deposed that union membership and/or the existence of a wage claim was not a factor in the decision to close the Mt Thorley branch nor in the redundancies at the Newcastle and Gosford branches. 68 In respect to the assertion that sub-contractors were engaged to undertake the work of retrenched employees, Mr Zeitsch deposed that the respondent had brought a Sydney crew to erect and dismantle scaffolding for a few days at a job in Newcastle being constructed by a Sydney housing company. Mr Zeitsch deposed that the respondent had been using these sub-contractors for over 12 months in Sydney working for the same housing company. He further deposed that sub-contractors in the Hunter Valley undertook another small scaffolding job a few weeks after the redundancies to which he had been committed some time earlier and that following completion of this job all scaffolding was "dry hired", i.e. without labour, from the Mt Thorley depot, staffing of which continued to be a manager, sales representative, mechanic, trades assistant, and office administration person. 69 Mr Zeitsch deposed that he was informed subsequent to the first proceedings before Commissioner Redman on 1 April 2003 that Messrs Richardson, Auchter and Winiorczyk did not seek reinstatement. Mr Winiorczyk was attached to the respondent's Newcastle Branch at the time his employment was terminated. The case on behalf of Mr Winiorczyk is not pressed in these proceedings. 70 Mr Zeitsch deposed that as a result of an increase in work, three of the four employees made redundant from Newcastle and Gosford were subsequently offered and accepted positions with the respondent, two remaining in employment at the time of proceedings. Mr Zeitsch deposed that the respondent had advertised vacant scaffolder positions in Sydney, the Central Coast and Lower Hunter, the advertisement appearing in the Newcastle Herald on 5, 9 and 19 April. Mr Zeitsch deposed that he was informed that the applicants did not apply for these positions and was further informed that Messrs Richardson and Auchter may have applied or become employees of another company. 71 Mr Zeitsch concluded his statement with a denial that the respondent has ever engaged in an activity which victimised Messrs Richardson, Auchter and Winiorczyk as alleged; and a denial that the respondent has ever paid any employee less than their full legal entitlement. SUBMISSIONS 72 Ms Sullivan submitted that the evidence of Messrs Grieve, Richardson, Auchter and Harris was collectively cogent and compelling evidence of victimisation, both in relation to complaints of failure by the respondent to apply the appropriate award, and in relation to their activities as union members. 73 Ms Sullivan submitted that Mr Grieve should be regarded as a witness of extremely high credit, privy to management considerations in the relevant period and at the time of giving evidence, a completely neutral party, having moved on to alternative employment. Ms Sullivan submitted that Mr Grieve's evidence revealed a determination by the respondent not to comply with industrial obligations, in particular ACIRT, and contrived to deceive the principle contractor into believing that payments were made, and attempts to obtain false declarations from Messrs Richardson and Auchter that they were content with the application of the award to their employment at the site. 74 Ms Sullivan submitted that Mr Grieve's evidence in respect to his direct conversation with Mr Zeitsch that the declarations be signed or consequences ensue is particularly damning. 75 Ms Sullivan submitted that there was no evidence brought to refute the testimony of Mr Grieve despite the availability of Messrs Sanson and Fletcher during the course of proceedings. Ms Sullivan submitted that the evidence compelled the Jones v Dunkel (1959) 101 CLR 298 conclusion that their evidence would not assist the respondent in rebutting the presumption of guilt found in s210(2) of the Act. 76 Ms Sullivan submitted that the evidence of Mr Zeitsch did not address the material issues other than a flat denial of the victimisation allegation. Ms Sullivan submitted that Mr Zeitsch's evidence portrays an attitude of abdication of responsibility and blame upon others for the decline in business. In particular, Ms Sullivan draws attention to Mr Zeitsch's evidence that available work from Coal & Allied diminished because of the attitude and performance of employees, notwithstanding management's responsibility and directions of employees; and cumulatively because the CFMEU complained about his industrial practices to the principle contractor. 77 Ms Sullivan submitted that Mr Zeitsch should not be regarded as a witness of credit, relying heavily upon exhibit 1, the facsimile statement of Mr Grieves, sent to the head office of Sherrin Hire in Brisbane. Ms Sullivan notes at p79 of transcript that Mr Zeitsch deposed that he kept personal and private documents such as witness statements within his office filing cabinets, then within a page of cross examination when, in Ms Sullivan's submission "the field suddenly started to narrow", Mr Zeitsch deposed that he would not lock things away, he would actually leave them on his desk, which widened access to person or persons unknown. Ms Sullivan submitted that there was a complete contradiction therein, which she put was typical of the evidence of Mr Zeitsch, which she described as "dissembling". 78 Ms Sullivan submitted that, when first asked about the evidence concerning exhibit 1 Mr Zeitsch deposed that there were some 30 people employed in the relevant office, and subsequently that the relevant facsimile number applied to a machine on the first floor of the office. Mr Zeitsch first contended that the first floor was occupied by administrative staff, payroll officer, assistants and such like; and later that only himself, Messrs Sanson and Fletcher were the only managerial staff who worked from the first floor, altering the impression that there were some 30 possible persons who could have transmitted exhibit 1; and subsequently that one half to two thirds of that group worked downstairs and did not have access to the facsimile machine on the first floor. 79 Ms Sullivan referred me to a decision of the Full Bench of the Australian Industrial Relations Commission in Smith and Others v Moore Paragon Australia Ltd of 21 March 2002 (PR915674) as an appropriate collection of authority to support the inferences she submitted were properly drawn from the evidence in this matter. 80 Ms Sullivan relied upon exhibit 1 and the circumstances surrounding it to support an inference that a company which would attempt to retaliate against a potential witness in the manner contended would also engage in victimisation of its employees. 81 Ms Sullivan submitted that the evidence of Mr Zeitsch that payment was not made in accordance with the Award is grounds for a positive finding in these proceedings that a negative attitude towards paying in accordance with the law; preferring payment on their own terms is indicative of an inclination to disregard lawful obligations and engage in victimisation. 82 Ms Sullivan submitted that the undisputed evidence of the respondent's attitude and behaviour to CFMEU officials, Messrs Cochrane and Harris, which she put was unreasonable in the circumstances, was evidence of the attitude the respondent took towards the union, delegates and employees. 83 Ms Sullivan noted that the issue of underpayment of wages remains unresolved. 84 Ms Sullivan submitted that appropriate compensation pursuant to s213(2)(c) of the Act is five weeks wages on the basis that subsequent to the termination of their employment, Messrs Richardson and Auchter entered a business together as independent contractors providing scaffolding services, replacing the wages lost as a result of termination with income from that venture five weeks later. 85 Ms Sullivan also referred me to Davis v Amalgamated Television Services Pty Limited [1998] 81 IR 364, a decision of a Full Bench of this Commission, which she put states the relevant principles. 86 Mr Warren submitted that at least one of the wages claims referred to by Ms Sullivan had been resolved and discussions continuing in regard to the others. Mr Warren submitted that in any event these are issues separate to these proceedings. Mr Warren submitted that the claim for five weeks pay had not been properly documented nor was there any supporting evidence to determine the period. 87 Mr Warren submitted that the presumption found in s210(2) of the Act is rebutted on the evidence. Mr Warren referred me to a Decision of Glynn J in Tapia v Lagoon Seafood Restaurant [1999] 89 IR 436 in which her Honour examines that aspect of s210(2) which afford a rebuttal where the respondent "satisfies the Commission that the alleged matter was not a substantial and operative cause of the detrimental action". Mr Warren noted that in Tapia her Honour refers to Davis wherein a Full Bench of the Commission affords appropriate analysis to the definition of victimisation. Mr Warren put that the finding in Davis is that s210 details eight particular activities or behaviours that an employee may engage in or decline, which, if sanctioned, amount to victimisation and that the victimisation may result in a dismissal which is unfair and may found an application pursuant to s84 of the Act. Mr Warren notes that these proceedings were first commenced pursuant to s84 and subsequently prosecuted pursuant to s210. 88 Mr Warren submitted that the onus of proof and the issues to be considered in these proceedings are quite different to those found in an application pursuant to s84. Mr Warren put that the CFMEU must prove that the termination of employment arose directly from an activity detailed in s210 in order that a finding of victimisation can be made. 89 Mr Warren submitted that a further hurdle for the CFMEU is that the presumption is rebutted if the employer satisfies the Commission that the specified conduct of the employee was not a substantial and operative cause of the termination of employment. Mr Warren relied upon the Macquarie Dictionary definitions of "substantial" and "operative" to give appropriate emphasis to the tests to be applied when considering the statutory rebuttal found in s210(2) of the Act. Mr Warren submitted that the proposition is rebutted if the employer can show to the civil standard of proof (Briginshaw v Briginshaw (1938) 60 CLR 336 that the essential influence in the termination of employment was not the conduct, in this case of being a union member (s 210(1)(a)); claiming a benefit pursuant to industrial instrument (s210(1)(e)); or informing a person of an alleged breach by the employer (s210(1)(f)). 90 Mr Warren relied on the evidence of Mr Zeitsch going to the rise and fall of business activity as the substantive and operative cause of the termination of employment. Mr Warren submitted that the evidence of Mr Zeitsch in respect to the invocation of s127 of the Act by the CFMEU and conduct of employees on the Coal & Allied sites as contributors to the reduction in business; which Mr Warren put is not to be taken, as advanced by Ms Sullivan, as an attack upon the CFMEU and employees but a simple statement of events, the consequent reduction in business hardly surprising. 91 Mr Warren submitted that the evidence does not support the allegations made by Ms Sullivan that the respondent sought to stand over employees to sign incorrect documents, putting that the statements sought were those that the principle contractor required them to obtain and were sought in accordance with that direction in an appropriate and proper manner. 92 Mr Warren submitted that the evidence of Mr Zeitsch was given in an open and candid manner and that the attack of credit advanced by Ms Sullivan is not sustained. 93 Mr Warren submitted that re-employment of persons made redundant at the same time as Messrs Richardson and Auchter mitigates against a conclusion of victimisation and in favour of a finding that termination of employment arose substantially from the ebb and flow of business activity. 94 Mr Warren submitted that Jones and Dunkel conclusions are not available from the absence of evidence by Messrs Sanson and Fletcher as none is warranted or necessary to meet the case brought by the CFMEU. 95 Mr Warren put that analysis of the evidence of Messrs Richardson, Auchter and Grieve reveals that there is no material in regard to the conduct of Messrs Sanson and Fletcher that was not adequately dealt with by Mr Zeitsch. 96 Mr Warren put that the relevant response is found in the evidence of Mr Zeitsch, which he put meets the test of rebuttal required by s210(2) of the Act without the need for anything further from Messrs Sanson and Fletcher. 97 Mr Warren put that the evidence of Mr Zeitsch clearly demonstrates that there had been a significant reduction in work available from the Mt Thorley branch, threatening the commercial viability of that operation; and that consequential retrenchment is not an unusual event and does not amount to victimisation as found in the Act. 98 Mr Warren submitted that the CFMEU had failed to make out a case to the required standard of proof that there was victimisation, submitting further that even in the event that some victimisation could be established, the evidence is unable to sustain a finding that victimisation was the substantial and operative cause of the termination of employment. CONSIDERATION 99 The decision of the Full Bench in Davis, relied upon by both Ms Sullivan and Mr Warren, provides appropriate guidance to understanding of the term "victimisation" as found in s210 of the Act and is restated below: We observe in passing that the ambit of the 1940 Act was narrower than that of the 1991 Act. In our opinion, the failure to define "victimise" or "victimisation" in the 1996 Act does not have the result of narrowing the definition in the 1991 Act. Indeed, the omission probably has the effect of extending the former meaning so as to comprehend any act of victimisation within the meaning of that word as ordinarily understood". … … The word "victimise" is defined, inter alia, as "to make a victim of; to cause to suffer discomfort, inconvenience, etc"; and where used in s 210 should therefore be interpreted as "cause an employee to suffer some injury, hardship or loss or otherwise treat the employee harshly, unfairly or to his disadvantage in or in relation to his/her employment". … … Furthermore, s 213(2)(e) comprehends the remedy of an order requiring the employer not to carry out a "threat" to victimise an employee and for that to have any application and effect "victimise" must be taken to comprise conduct involving threats to victimise by the employer. However, it is unnecessary in this case to decide the full ambit of the word "victimise". Mr Davis alleges in his application that he was subject to a number of forms of victimisation, the particulars of which have been set out earlier. The final act of victimisation alleged is dismissal. In our opinion the actions and/or omissions attributed to the respondent which are contained in par 6 of the particulars of claim, or any one of them with the possible exception of (h), are, particularly in the context of immediately preceding threats, quite capable, in law, of constituting victimisation within the meaning of the word "victimise" as we have earlier construed it; and those threats themselves, as we subsequently discuss, are themselves capable of constituting victimisation within the meaning of s 210. Indeed, even if its meaning was confined, as was argued by Mr Rothman, to that contained in the 1991 Act, the various acts and omissions in question are capable of constituting victimisation as defined in s 481(2)(a), (b) and (c) thereof. 100 The judgment of Glynn J in Tapia, relied upon by Mr Warren, sets out appropriate consideration of the link between the proscribed activities found in s210 and the onus upon the applicant that victimisation arose substantially from involvement in those proscribed activities. 101 The present circumstances approached from the perspective of Davis and Tapia require findings of fact. Firstly, whether Messrs Richardson and Auchter undertook or participated in the proscribed activities; secondly, whether they suffered victimisation as described in Davis; and thirdly, whether the respondent has been able to rebut by demonstrating that any hardship or detriment did not arise from the involvement in proscribed activities. 102 The approach to this evidence and the inference available from it is that enunciated in Jones v Dunkel (1959) 101 CLR 298 referred to at p 375 of Davis, in particular the judgment of Menzies J where he said: "As has been said, 'Inferences from actual facts that are proved are just as much part of the evidence as those facts themselves. In a civil cause "you need only circumstances raising a more probable inference in favour of what is alleged …. where direct proof is not available it is enough if the circumstances appearing in evidence give rise to a reasonable and definite inference; they must do more than give rise to conflicting inferences of equal degree of probability so that the choice between them is mere matter of conjecture: see per Lord Robson, Richard Evans & Co Ltd v Astley [1911] AC 674 at 687 …. All that is necessary is that according to the course of common experience the more probably inference from the circumstances that sufficiently appear by evidence or admission, left unexplained, should be that the injury arose from the defendant's negligence. By more probable is meant no more than that upon a balance of probabilities such an inference might reasonable be considered to have some greater degree of likelihood". These passages are extracted from the unanimous judgment of this Court (Dixon J, as he then was, Williams, Webb, Fullagar and Kitto JJ) in Bradshaw v McEwans Pty Ltd (unreported, 27 April 1951).': see Holloway v McFeeters (1956) 94 CLR 470 at 480, 481)." 103 In addressing the first question, the evidence clearly establishes that Messrs Richardson and Auchter were consciously and deliberately denied their entitlements to the Award and were threatened with detriment by Mr Sanson for having joined the CFMEU; by Mr Grieve on behalf of the respondent for declining to give a false declaration of content; and were victimised in their employment by Mr Zeitsch who effected the termination thereof. 104 The evidence of Mr Richardson going to the conduct and actions of Mr Sanson that the respondent was "looking at walking away from this job anyway because all this is such a hassle" and allegations that Mr Richardson was responsible for "this union trouble" is not refuted. The failure to call Mr Sanson to rebut or explain leads to a conclusion that the evidence is accepted. This evidence provides a foundation for the inference that the ultimate termination of employment of Messrs Richardson and Auchter was their union membership and requests for payment in accordance with the Award. 105 The evidence of Mr Zeitsch that the Mt Thorley branch continued to operate with a Manager and sales and administration staff on "dry hire", i.e. equipment only, not labour leads to the conclusion that the decision taken in respect to the Mt Thorley branch was to cease supply of labour for the branch and continue all other services. The continuation of "dry hire" is inconsistent with the evidence of downturn in business and supports the conclusion that the object of the exercise was to remove Messrs Richardson and Auchter from employment; the motivation being their union membership and activity in seeking award payment and recovery of underpayment. There is no evidence in respect to Mr Purvis. It is not known whether he is re-employed. The available inference is that the employment of Mr Purvis was a casualty of the strategy to remove Messrs Richardson and Auchter. 106 The evidence brought on behalf of the respondent does not meet the requirements of rebuttal. The inferences properly drawn are those advanced by Mr Harris in his evidence that the decision by the respondent to scale back the Mt Thorley operation to marketing, sales and administration, in which it hired equipment only, was a device to obscure the termination of employment of Messrs Richardson and Auchter, determined upon as a consequence of their union activities and representation of them by CFMEU officials. 107 I come easily to a comfortable satisfaction on the civil standard of proof that Messrs Richardson and Auchter were subject to victimisation by the respondent and are entitled to relief proscribed by the Act. That relief is limited to wages lost. 108 An entirely unsatisfactory element of the prosecution of this matter is that there was no evidentiary material anywhere to support the submission by Ms Sullivan that the extent of wages lost is five weeks pay. Nor is there any material which would reveal the weekly rate of pay to be applied of that period. I note there was a belated attempt by Ms Sullivan to bring such evidence which was opposed by Mr Warren on the grounds that should it be admitted at that time he was in no position to take adequate instructions. That evidence so proposed was not allowed. 109 Having regard to the positive findings made, it is necessary in the interests of justice to give proper consideration to available remedy. 110 The CFMEU is directed to file and serve appropriate material in support of their contention within 14 days of the date of this decision. The respondent shall have a further 14 days to file any material in reply. The matter is listed for hearing as to quantum remedy at 2.00 pm on 26 March 2004. oo0oo INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: HARRISON DP Wednesday, 29 September 2004 Matter No IRC 1912 of 2003 cONSTRUCTION FORESTRY MINING AND ENERGY UNION, Construction and general division, NEW SOUTH WALES BRANCH (ON BEHALF OF richardson and auchter) AND ace scaffolding pty ltd Application for relief from victimisation pursuant to section 213 of the Industrial Relations Act 1996 SUPPLEMENTARY DECISION 1. A Decision in this matter was published on 16 February 2004 finding in favour of the Applicants and against the respondent. The question of quantum of compensation was reserved for further argument and directions were issued to bring that issue to hearing on 26 March 2004. 2. The parties sought adjournment of those proceedings and in the event resolved the matter between them, resulting in the filing of a Notice of Discontinuance on 28 September 2004. 3. Matter No IRC 1912 of 2003 is so concluded. oo0oo DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.