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Federal Court of Australia |
Last Updated: 27 March 2002
Canturi v Sita Coaches Pty Ltd (ACN 004 444 900) [2002] FCA 349
INDUSTRIAL LAW - Australian Workplace Agreement ("AWA") - Duress - Requirement that application for a penalty be made by a party to the AWA - Whether includes a party to a proposed AWA - Whether an AWA has to be concluded before duress can be applied in connection with it - Whether applicant has to be a party to an actual or proposed AWA at date of application - Whether actual or proposed AWA must stipulate a date on which it is to start to operate in order for there to be parties to the AWA - What constitutes duress - Whether duress has in fact to overbear the will of the person to whom it is applied - Freedom of association - Injuring an employee in his employment or altering his employment to his detriment because he is entitled to the benefit of an industrial instrument - Whether industrial instrument must bind employer in respect of the employee concerned - Only one of two possible employers bound as named respondent to relevant industrial instrument - Whether other related employer estopped from denying that it was bound by the industrial instrument - Whether joint venture or other relationship between two employers makes one the successor or transmittee of part of the business of the other - Same conduct constituting application of duress in connection with an AWA and injuring employee in employment because he was entitled to the benefit of an industrial instrument - Whether proceedings bad for duplicity - Whether same conduct attracts liability for two different penalties - Penalty - Assessment where same conduct constitutes a contravention of two different statutory provisions - Matters to be taken into account - Whether order should be made for payment of penalty to individual applicant - Whether penalty for contravention of Pt XA should include amount in lieu of compensation under s 298U(c).
Workplace Relations Act 1996 (Cth), ss 170VB, 170VV, 170WG, 298K, 298L, 298U, 298X, 356
Maritime Union of Australia v Burnie Port Corporation Pty Ltd (2000) 101 IR 435
Schanka v Employment National (Administration) Pty Ltd [2000] FCA 202; (2000) 170 ALR 42
Maritime Union of Australia v Geraldton Port Authority [1999] FCA 899; (1999) 165 ALR 67
Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336
Textile Footwear and Clothing Union of Australia v Bellechic Pty Ltd [1998] FCA 1465
Mobil Oil Australia Ltd v Wellcome International Pty Ltd (1998) 81 FCR 475
Australian Rail Tram & Bus Industry Union -v- Torrens Transit Services Pty Ltd [2000] FCA 1683
Concrete Constructions Pty Ltd v Plumbers and Gasfitters Employees' Union (No 2) (1987) 15 FCR 66
Linehan v Australian Public Service Association (Fourth Division Officers) (1982) 66 FLR 90
Bowling v General-Motors Holden Pty Ltd (1975) 8 ALR 197
Ex parte Polley; Re McLennan (1947) 47 SR(NSW) 391
Garrett v Messenger (1867) LR 2 CP 583
In re R Hampton & Sons [1966] 1 QB 135
Tesco Supermarkets Ltd v Nattross [1971] UKHL 1; [1972] AC 153
Schanka v Employment National (Administration) Pty Limited [2001] FCA 1623; (2001) 110 IR 97
Construction Forestry Mining and Energy Union v Coal & Allied Operations (No 2) (1999) 94 IR 231
Kenefick v Australian Submarine Corporation Pty Ltd (No 2) (1996) 40 AILR 3-352
Wheeler v Philip Morris Ltd (1989) 32 IR 323
MICHAEL CANTURI v SITA COACHES PTY LTD (ACN 004 444 900)
and GIUSEPPE SITA
VG 742 of 1999
and
FRANCESCO NAPOLI v SITA COACHES PTY LTD (ACN 004 444 900), GIUSEPPE SITA and SITA BUS LINES PTY LTD (ACN 004 492 719)
VG 743 of 1999
RYAN J
MELBOURNE
27 MARCH 2002
IN THE FEDERAL COURT OF AUSTRALIA |
|
VICTORIA DISTRICT REGISTRY |
BETWEEN: |
MICHAEL CANTURI Applicant |
AND: |
SITA COACHES PTY LTD (ACN 004 444 900) First Respondent GIUSEPPE SITA Second Respondent |
JUDGE: |
RYAN J |
DATE OF ORDER: |
27 MARCH 2002 |
WHERE MADE: |
MELBOURNE |
1. There be imposed on the first-named respondent a penalty of $7,000.
2. The said penalty be paid within 21 days of this order to the solicitors for the applicant.
3. The application be otherwise dismissed.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA |
|
VICTORIA DISTRICT REGISTRY |
VG 743 of 1999 |
BETWEEN: |
FRANCESCO NAPOLI Applicant |
AND: |
SITA COACHES PTY LTD (ACN 004 444 900) First Respondent GIUSEPPE SITA Second Respondent and SITA BUS LINES PTY LTD (ACN 004 492 719) Third Respondent |
JUDGE: |
RYAN J |
DATE: |
27 MARCH 2002 |
PLACE: |
MELBOURNE |
THE COURT ORDERS THAT:
1. There be imposed on the first-named respondent and the third-named respondent a penalty of $7,000.
2. The said penalty be paid within 21 days of this day to the solicitors for the applicant.
3. The application be otherwise dismissed.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
1 The corporate respondents, Sita Coaches Pty Ltd ("Coaches") and Sita Bus Lines Pty Ltd ("Bus Lines") are effectively controlled by the second respondent, Giuseppe (also known as George) Sita ("Mr Sita"). Hereafter in these reasons, when it is unnecessary or impossible to distinguish between them, Coaches and Bus Lines are collectively referred to as "Sita". Between them, Coaches and Bus Lines have conducted coach or bus services consisting partly of a tourist operation devoted to carrying visitors to scenic attractions and places of interest like Phillip Island and Sovereign Hill at Ballarat. Another part of the business has consisted of the provision of public bus services over designated routes under contract to the Public Transport Corporation. A third aspect of the business has been the conduct of school bus services and the letting of buses on charter. Mr Sita claimed that Bus Lines and Coaches were separate, although he "owned" both of them. In-bound tourist work and charter work was carried out by Coaches.
2 In 1998, there had been negotiations between Bus Lines and the Transport Workers Union of Australia with a view to concluding a certified agreement under the Workplace Relations Act 1996 ("the Act"). Such an agreement was certified by the Industrial Relations Commission of Australia ("the Commission") on 12 August 1998 and stipulated weekly wage rates for the following classification:
Regular Service drivers
School Bus drivers
Charter and Tour drivers
Greasers
Cleaners / Bowser attendants
School Bus Supervisors.
3 The applicant in proceedings VG 743 of 1999, Mr Napoli, commenced work in the business in 1982. He believes that his original employer was Bus Lines and that his employment was later transferred to Coaches. However, it seems that a group tax certificate for the year ended 30 June 1993 shows Bus Lines as his employer and a later certificate for the year ended 30 June 1998 shows Bus Lines as an employer of Mr Napoli and as having paid him gross wages of $18, 284.00. A similar certificate issued by Coaches shows it also to have employed Mr Napoli during the same period and to have paid him gross wages of $13, 583.00.
4 Mr Napoli has testified that for most of the last eleven years of his employment he was engaged mainly on tourist work and was occasionally required to do morning school runs. On other occasions he drove buses on charter. Less frequently he drove buses on designated public routes, usually to relieve a regular driver who was on leave or absent for some other reason. He regarded the tourist work as more congenial because it usually attracted significant amounts of overtime and tips or gratuities were often received from tourists.
5 In or about September or October 1997 Mr Sita raised with Mr Napoli the prospect of entering into an individual employment contract. Mr Napoli was originally attracted to the idea because he thought it would prescribe more precisely the basis of his remuneration. He claimed that, at the same time, Mr Sita said that "if people don't sign the contracts he would not give them any overtime."
6 In late November or early December 1997 Mr Sita revived with Mr Napoli the question of an individual employment contract and requested him to sign a form of Australian Workplace Agreement ("AWA") which he then produced. Mr Napoli requested a few days to consider the terms of the proposed AWA which, he says, were accorded reluctantly by Mr Sita who, on Mr Napoli's version, said, "I really don't want to give it to you because if I give it to you I have to give it to everybody else." At all events, Mr Sita provided to Mr Napoli a copy of the draft AWA which had been prepared by Freehills, solicitors, on 19 November 1997. Mr Napoli made a photocopy of that document. On the following morning, Mr Sita asked Mr Napoli about his reaction to the AWA and Mr Napoli claims that he expressed dissatisfaction with the stipulation of a minimum of forty hours and a maximum of seventy-two hours a week and the requirement for drivers to be available to work on six days a week. He also complained that an hourly rate of $13.75 was inadequate for the amount of hours that could be demanded.
7 According to Mr Napoli, that response provoked an angry reaction from Mr Sita who stormed out of the room saying "I'm going to fix you up". A few days later, Mr Sita requested the return of the AWA which Mr Napoli gave to him but retained the photocopy which he had made. On 2 December 1997 a request was made to Freehills, solicitors, for a variation of the first version of the AWA to provide for an hourly rate of $13.77 and a changed formulation of the employer's right to stand down employees "for any strike, or any other unforeseen problem that may arise, eg. fuel strike, any stoppage of work for which the company cannot reasonably be held responsible." Those changes were incorporated in a fresh version of the AWA prepared by Freehills on 2 December 1997. Yet another version of the AWA was prepared, also by Freehills, on 5 December 1997 and was signed by Mr Sita as "Director". Mr Sita said that he attended a third meeting of drivers held after Christmas 1997 at which certain changes to the proposed AWA were suggested and accepted. Neither Canturi nor Napoli was present at that meeting. After that meeting, the revised AWA was, Mr Sita believed, distributed to all drivers by Robert Bruce, one of the drivers' spokesmen. In the result, copies of that document were executed by some sixteen employees and forwarded to Freehills, who acknowledged their receipt under cover of a letter dated 6 January 1998.
8 On his evidence, Mr Napoli, within a short time of his expressing dissatisfaction with the proposed AWA, was directed by the paymaster, Ms Lamburyani, to relieve another driver on the public bus route from Footscray to Melbourne. According to Mr Napoli, Ms Lamburyani indicated that the relief work would be for a short time. However, after doing that work for two weeks, it became apparent to Mr Napoli that he had been rostered on it permanently.
9 Mr Sita asserted that Mr Napoli's transfer to route service work was originally intended to be temporary but had been extended when the driver whom he replaced, Mr Stampo, failed to return to work. Mr Sita further asserted that Mr Napoli suffered no diminution in income as a result of his transfer to route service work. Mr Napoli was selected for that temporary transfer, Mr Sita said, because he had substantial previous experience on route service work. Mr Stampo's first sick leave certificate was for two weeks. At the beginning of January 1998, Mr Stampo furnished another certificate supporting a further month's absence. Mr Sita then decided to transfer Mr Napoli indefinitely to Mr Stampo's route service work. Some other drivers who had been engaged on in-bound tourist work were also diverted to route service work during January 1998. Mr Sita also claimed that he was unaware at what point Mr Napoli had conclusively refused to sign an AWA.
10 In about March 1998, Ms Torchia, a receptionist employed by Coaches, claimed to have found a discrepancy of about $48 in the returns of takings from a public bus route made by Mr Napoli. She left a note to that effect in his locker. It was the practice of the Sita business to require drivers to make up from their own money discrepancies of that kind. Mr Napoli disputed the claim that there had been a discrepancy for which he was responsible, but Ms Torchia re-calculated her reconciliation and claimed that it still disclosed the same discrepancy. She left a second note to that effect for Mr Napoli which, she claims, he later threw at her when refusing to make good the shortfall which he could not explain. She then reported the matter to Mr Sita who took away Mr Napoli's till and locker and gave instructions that Mr Napoli should no longer be rostered on routes which involved the receipt of cash. Thereafter, Mr Napoli was transferred to a school run. On one occasion, he asserted, Ms Lamburyani offered him work on a temporary public transport route which had been created because some tram tracks were under repair. However, after Mr Napoli suggested that the offer might require Mr Sita's approval, it was withdrawn. On that day, according to Mr Napoli, Mr Sita angrily said to him that he would rather lose the job than give him (Napoli) overtime. Ms Lamburyani acknowledged that she had asked Mr Napoli to do the emergency work in question. It was further her impression that, after a discussion with Mr Sita, Mr Napoli did not do the work. Mr Sita rejected Mr Napoli's assertion that he (Napoli) had been denied extra work while tram tracks were under repair.
11 On 1 June 1998, when Mr Napoli was playing squash with Mr Canturi, the applicant in proceeding VG 742 of 1999, and Mr Giovanni (John) Bono, the operations manager for the Sita business, Mr Canturi complained about his being confined to work on school runs. Mr Bono, according to Mr Napoli, replied that he, Mr Paton, Sita's job cards manager, and Paul Marchant, the assistant operations manager, had been instructed by Mr Sita that neither Canturi nor Napoli were to be given any overtime because they had not signed the AWAs.
12 On 26 June 1998 Mr Napoli complained to Mr Sita about the restriction on his ability to earn overtime. Then, according to Mr Napoli, Mr Sita replied:
"Why you come and talk to me like this instead of coming and apologise for what you did? It's not my fault, it's your fault. I told you and Michael Canturi that if you don't sign the contract I not give you any overtime. I can't afford to pay you over time of $24 an hour when 1 can give it to the people who signed the contract for $14 an hour."
13 Mr Napoli deposed that he replied "I can't go on living on $400 a week. I resign." That resignation was accepted and Mr Napoli signed a letter prepared on Mr Sita's instructions and addressed to Coaches which recited:
"I hereby wish to formally advise you of my decision to tender my resignation from Sita Coaches Pty Ltd effective 26 June 1998."
14 Mr Sita acknowledged, in relation to Mr Napoli's resignation, that the latter had complained of his inability to earn overtime. Mr Sita accepted that he had referred to a difference between $24 an hour and $14 an hour but claimed that the latter was an inadvertent statement. He also explained that he had made that statement because it was more palatable than reminding Mr Napoli that he had been taken off route service work because he could no longer be trusted with money.
15 About two weeks after his resignation, Mr Napoli obtained other work as a labourer for a transport company. At the end of July 1998, he formed a company, Napoli Removalists Pty Ltd and commenced, through it, to carry on business as a cartage contractor.
16 The evidence adduced on behalf of Mr Canturi, the applicant in proceeding VG 742 of 1999, was broadly similar to that of Mr Napoli. Mr Canturi commenced employment in the Sita business as an apprentice mechanic. Thereafter, he worked in the business in various capacities until 1986 when he became a casual coach driver. He commenced work as a full time driver in March 1994 and concentrated on driving tourist coaches although he often started the morning with a school bus run. He claims that he frequently worked long hours and was often required seven days a week.
17 When Mr Sita first broached the matter of individual employment contracts with Mr Canturi, the latter's reaction was initially favourable. However, according to Mr Canturi, when he asked "What happens if I don't sign?", Mr Sita replied, "If you don't sign then no work." Mr Canturi's affidavit then continues:
"I enquired as to whether I would be paid a flat rate to which Mr Sita replied "Yep." I said something like "At least 1 will be able to work out what I am getting paid." I found the calculations set out in my payslips confusing and often didn't seem to correspond with my hours worked. As 1 said that, Mr Sita made the sign of the cross across his chest and slammed his fist onto the table. There was no further discussion and I walked out of the room."
18 On or about 19 November 1997, according to Mr Canturi, Mr Sita gave him a copy of the draft AWA, a copy of which had also been given to Mr Napoli and said "Here, have a look at this, give it back to me tomorrow signed." In his next discussion with Mr Sita, according to Mr Canturi, he expressed dissatisfaction with the stand-down time and the hours of work stipulated by the AWA, whereupon Mr Sita snatched the documents out of his hands and said "No contract for you. I'll fix you. I'm going put you on thirty-eight hours."
19 There was no further contact between Mr Canturi and Mr Sita before a few days later when, Mr Canturi says, he spoke to Mr Giovanni Bono, Sita's operations manager. The conversation, as deposed to by Mr Canturi, was in these terms:
"Mr Bono said to me "Why did you question the contract? I now have to put you on school runs." I told Mr Bono that I didn't tell Mr Sita that I wasn't going to sign the contract and that I had just questioned it. Mr Bono said "You know what George is like. He will just push them through any way that he can. Just go and tell him you are going to sign." I asked Mr Bono whether he had read the contract. He said It is no worse than what you are getting now." I said "What I am getting now is not correct anyway."
20 According to Mr Sita, Mr Canturi, after an opportunity to peruse the 19 November draft of the AWA, responded that he wanted $22 an hour. Mr Sita further asserted that it had been conveyed to him through other drivers, Mr Bruce, Mr Pearce and Mr Johnson, that Mr Canturi, like Mr Napoli, was not prepared to sign the AWA in its final form of 5 December. That information was received before Christmas 1997 although, according to Mr Sita, he had no conversation directly with Mr Canturi about the latter's signing an AWA. Mr Sita denied that Mr Canturi had been "singled out" from other drivers after his refusal to sign an AWA. He claimed that any restrictions in the hours or kind of work provided to Mr Canturi resulted from the latter's expression of a wish not to work at night or at weekends as he had found alternative work as a "security officer/bouncer". But for that indication, as I understood Mr Sita's evidence, Mr Canturi, as his nephew, would have continued to enjoy his preferential right to have the first choice of the "cream" of the charter work. Mr Sita under cross-examination was unable to recall when he was told of Mr Canturi's expression of a desire to work elsewhere at nights and weekends. However, when re-examined, he said that it came to his knowledge early in January 1998. Mr Sita further claimed that he was unaware that the nature of Mr Canturi's work had changed after the beginning of December 1997.
21 Mr Giovanni Bono claimed in oral evidence that he had been told by Mr Canturi in the presence of Dominic Sita and John Paton in October or November 1997 in the canteen at the bus depot that he, Canturi, had another job and was unavailable to undertake work which required early starts or driving after 5.00 pm. However, no mention of that request was made in Mr Bono's affidavit in response to Canturi's assertion that he had been taken off in-bound charter work on Mr Sita's instruction after he had failed to sign the AWA. Significantly, Mr Giovanni Bono deposed in his affidavit in each application:
"6. ... ... ... I was never told by any director of Sita that after the implementation of Australian Workplace Agreements I should only give overtime to workers who had signed an agreement. However, I knew as a matter of practice that to allocate a driver who was under the award would involve costs to Sita of time and a half or double time for overtime work. For drivers who had signed the Workplace Agreement, the cost to Sita was $15.00 per hour. As my responsibility to Sita was to reduce costs, I would as a matter of course allocate overtime work to contract drivers in preference to award drivers, but I did not exclude award drivers from overtime work, as evidenced by the fact that Napoli did a considerable amount of overtime."
22 For whatever reason, the work allocated to Mr Canturi which attracted overtime was significantly reduced and, in December 1997, he was confined to school bus runs and school-related and local charter work, except for one occasion on 2 January 1998 after a particular tour group operator had specifically requested his services as the driver for a group. Mr Canturi complied with that request which had been relayed through Mr Bono but on 3 January, when he was due to carry the same group on the next day, he was telephoned by Mr Bono who said that Mr Sita had found out and had "hit the roof". According to Mr Canturi, Mr Bono went on to say "George got really angry and told me to tell you, you can't do the job so don't come in tomorrow." Thereafter, Mr Canturi was confined to bus runs to and from the airport and to school bus runs and school-related charter work. He had no weekend work and received only minimal other overtime.
23 Mr Canturi corroborated Mr Napoli's version of the squash court conversation of 1 June 1998. He also deposed that he was off work from 2 June 1998 to 12 June 1998 because of an ankle injury, for which he submitted a workers' compensation claim.
24 On 12 June 1998, Mr Canturi was telephoned at home by Mr Andreacchio, Sita's accountant, who said "There is no work for you so Mr Sita has decided to pay you out." Mr Canturi disputed the assertion that there was no work, pointing to the number of part-time drivers then working for Sita. After Mr Andreacchio made no response, Mr Canturi asked him to put his intimation in writing. There was thereupon delivered to Mr Canturi's home on the following day a letter dated 12 June 1998 which recited:
"Dear MichaelRE: TERMINATION OF YOUR EMPLOYMENT
1 am writing to inform you that your services as a Coach Driver at Sita Coaches Pty. Ltd have been terminated as of 12 June 1998. The reason for your dismissal is that we doubt your claim that you injured yourself whilst performing your work duties.
We have evidence to substantiate that on the evening of 1 June 1998 you played squash without any signs of incapacity or complaint of injury. On the morning of the 2 June 1998 you rang the office informing them of your inability to attend work due to an alleged work related injury allegedly sustained on the 1 June 1998. You finished work at approximately 4.30 pm on the 1 June 1998 without reporting any injury to any staff member, you then went on to play squash that same evening. Accordingly, the last time you drove a coach or bus could only have been prior to playing squash on the evening of 1 June 1998 and therefore unable to sustain a work related injury.
This alleged injury' resulted in two medical certificates for one week each. Furthermore you were seen driving your vehicle, whilst claiming incapacity to drive a fully automatic bus.
We consider this to be a most serious breach and a dereliction of your terms of employment. Accordingly, enclosed is your termination pay and your medical bill of $30.85 which is returned to you due to the nature of the claim.
We regret having to take these measures but we feel that you have left us with little alternative."
25 The applicants also adduced evidence from Mr Mesiti, a former district operations officer with the Public Transport Corporation, who had been employed by Bus Lines from October 1991 to February 1998 as Route Service Supervisor and Training Supervisor. In the course of that employment, he had been required to investigate complaints made against Sita drivers. The only complaints he recalls having been made against Mr Canturi were one that he had used a mobile telephone while driving, and another that he had been guilty of speeding. He also deposed:
"I was the person who was responsible for the rostering of weekend work which was obtained by Sita from the Public Transport Corporation. In or about December 1997, Mr John Paton of Sita advised me that Frank Napoli and Michael Canturi were not to be put on any weekend rosters and were not to be provided any extra overtime. He told me that they would not be given any inbound work. Mr Paton stated that the reason for this was that they had not signed workplace agreements and that they were not to be provided extra overtime until the agreements were signed. The conversation took place in the office in which John Paton and I had our desks. As a result of this conversation I did not roster Mr Napoli or Mr Canturi for extra work when it became available. At this time there was work available on weekends."
26 An affidavit by Giovanni Bono, the Sita Operations Manager, was filed on behalf of the respondents. He deposed that he was aware that there had been discussions between Mr Sita and various drivers or their representatives about successive drafts of the AWA "before the final version was agreed to by nearly all the drivers". Mr Bono also deposed that he was under no instruction from Mr Sita stipulating that Napoli and Canturi should not work any overtime.
Procedural history
27 Each application was filed on 22 December 1999 and was accompanied by a statement of claim. Initially, each application was brought against only Coaches and Mr Sita personally. The sole substantive relief sought was an order pursuant to s 170VV of the Act imposing penalties on the respondents for breaches of s 170WG(1) of the Act.
28 Pursuant to leave granted on 29 August 2000, each applicant amended his application to include a claim for an order pursuant to s 298U of the Act imposing penalties on Coaches for breaches of s 298K of the Act and for the payment of compensation by Coaches to the applicant. Corresponding amendments were made to each statement of claim which identified the industrial instrument to the benefit of which each applicant was alleged to be entitled in terms of s 298L(1)(h) as the Transport Workers' (Passenger Vehicles) Award 1984 ("the Award"). At the same time an additional amendment was made to the application in VG 743 of 1999 by Mr Napoli to add Bus Lines as a third respondent to that application. By that amended application, it was sought that penalties be imposed on each of the respondents for breaches of s 170WG and on each of Coaches and Bus Lines for breaches of s 298K. It was also sought that each of Coaches and Bus Lines pay compensation to the applicant, Napoli, in respect of the latter breaches. Corresponding amendments were made to Mr Napoli's statement of claim.
29 It is convenient to consider, first and together, each applicant's claim in respect of the alleged contravention of s 170WG(1) of the Act.
The allegation of duress in connection with an AWA
(i) Legislative framework
30 Section 170WG(1) of the Act provides;
"A person must not apply duress to an employer or employee in connection with an AWA or ancillary document."
31 Section 170VV(1) empowers an eligible court to make an order imposing a penalty on a person who contravenes a penalty provision which is defined by s 170VV(4) to include s 170WG(1). Section 170VV(2) prescribes that the penalty cannot be more than $10,000 for a body corporate or $2,000 in other cases.
(ii) Do the applicants have standing to bring an application for imposition of a penalty for contravention of s 170WG(1)?
32 It was contended on behalf of the respondents that s 170VV(3) of the Act requires that an application for imposition of a penalty must be made by a party to the AWA in question. That sub-section provides;
"An application for an order under subsection (1) that relates to an AWA or ancillary document may be made by a party to the AWA or ancillary document."
33 However, s 170VB of the Act provides;
"(1) So far as the context permits, a reference in this Part to an AWA or ancillary document includes a reference to a proposed AWA or ancillary document.(2) In relation to a proposed AWA or ancillary document, a reference to the employer or employee is a reference to the person who will be the employer or employee when the AWA or ancillary document starts to operate."
34 "Party" is defined in s 170VA to mean "in relation to an AWA or ancillary document ........ the employer or employee." In my view, that definition, in conjunction with the extension effected by s 170VB of the concept of an AWA to include a "proposed AWA" has the effect that a person who is proposed to be an employer or employee in relation to a proposed AWA is a party for the purposes of s 170VV(3). This is consistent with my observations in Maritime Union of Australia v Burnie Port Corporation Pty Ltd (2000) 101 IR 435, where, referring to the judgment of a Full Court of this Court in Schanka v Employment National (Administration) Pty Ltd [2000] FCA 202; (2000) 170 ALR 42 ("Schanka"), I said, at 27;
"That case dealt, in part, with a claim in respect of an applicant who had been a party to negotiations for an AWA which had not resulted in his entering into a completed agreement. However, the application of the principle recognised in Schanka means that it is not necessary that a contract (or AWA) be concluded for the question of duress on which s 170WG is predicated to arise. Nor will the standing of applicants raising that question depend upon their being parties to the AWA in question."
35 It was also argued on behalf of the respondents that, even if Canturi and Napoli had been comprehended as "parties" to a proposed AWA by force of the extended definition in s 170VB(1), in order to have standing to prosecute these applications, they had to answer the description of "parties" at the date of instituting the applications, ie 22 December 1999. Because no relevant AWA, or proposed AWA, was then in existence, or under negotiation, so the argument went, neither applicant was a "party" at that date. I reject that contention. In my view, the time at which an applicant must be a "party" to an actual or proposed AWA is the time of the alleged application of duress which is said to contravene s 170WG(1).
36 The alternative construction for which the respondents contended would have the consequence that, if the negotiations for a proposed AWA had irretrievably broken down, or otherwise conclusively come to an end, before proceedings were instituted, no penalty would be recoverable under s 170VV irrespective of how gross the duress might have been. That construction, I consider, ought to be avoided, if possible, consistently with the approach taken by the Full Court in Schanka where it was observed, at 50 [34];
"The construction for which ENA contends would allow even the most reprehensible conduct engaged in by a party in relation to a proposed AWA to go unexamined by a court if no concluded agreement were to come into existence. We would only impute to Parliament such an intention to limit the scrutiny of conduct of persons in an industrial relationship if the language of the legislation intractably compelled that result. For reasons which we have endeavoured to explain, Part VID of the WR Act, on its proper construction, supports a wider availability of the remedy afforded by s 170VV."
37 In a related way it was contended on behalf of the respondents that, because the draft AWA furnished to each of Mr Napoli and Mr Canturi did not stipulate a date from which it was to commence operation, there was no employer or employee in relation to that proposed AWA as contemplated by s 170VB(2). However, consistently with the construction outlined in [36] above, I consider that the expression "starts to operate" in s 170VB(2) refers to the time (which need not be defined in advance) at which the proposed AWA would start to operate if it were entered into. Accordingly, I consider that each of the applicants was an "employee" and therefore a "party" in relation to the AWA into which he was invited to enter.
(iii) The Nature of Duress
38 It was next submitted on behalf of the respondents that, even accepting the applicants' allegations at their highest, they did not disclose the application of duress in relation to an AWA in the sense required by the authorities. I accept that the mere fact that a proposed AWA offers to an employee terms and conditions of employment which are different from those available under the contract or award which would otherwise regulate his or her employment will not constitute duress. Thus, in Schanka, at first instance, (1999) 166 ALR 663, Moore J observed, at 681;
"The conduct of the contravening party must involve illegitimate pressure. I doubt that the mere fact that an employer offers employment on the basis that an AWA in certain terms must be made, is illegitimate pressure. It would do no more than place the potential employee in the position of either declining or accepting the employment on those terms and regulated that way, that is by an AWA. Something more is probably necessary and whether pressure is illegitimate will ultimately depend on the factual context in which the allegation of duress arises. But it must be pressure that is likely to have the effect of denying the exercise of free will if an AWA was made. It also must be intended to have that effect."
39 The reasoning of Moore J in Schanka [(1998) 86 IR 283] was approved by R D Nicholson J in Maritime Union of Australia v Geraldton Port Authority [1999] FCA 899; (1999) 165 ALR 67, where his Honour, at 125, accepted the rationale for s 170WG as being "to ensure that processes that might lead to the making of an AWA occur in a way that ensures that free choice is exercised." His Honour continued, at [367];
"Duress, "like undue influence, focuses upon the effect of pressure, upon the quality of the consent or assent of the pressured party, rather than the quality of the conduct of the party against which relief is sought": Westpac v Cockerill (1998) 152 ALR 267 at 289 per Keifel J. While generally speaking the types of pressure considered to be illegitimate will involve unlawful threats or pressure that amounts to unconscionable conduct, the categories of conduct are "not closed" and "otherwise lawful conduct may in certain circumstances amount to illegitimate pressure": Crescendo Management Pty Ltd v Westpac Banking Corp [(1988) 19 NSWLR 40] at 46.These general law propositions are applicable to section 170WG. It can be duress in relation to an AWA in contravention of section 170WG to refuse to deal with someone if they do not enter into an AWA with an employee or to not employ someone except on an AWA, or to threaten an existing employee with loss of employment if he or she does not enter into an AWA: Schanka. An enquiry into an allegation of duress for the purposes of section 170WG must involve a consideration of the "possible or probable impact of the conduct" of the party applying duress to the other party: Schanka at 12.
40 The Full Court in Schanka similarly emphasised that inherent in the notion of duress is the application of illegitimate pressure. It observed, at 23;
"In our view, the answers given by his Honour to the questions which he identified involved his discerning from s 170WG in the context of Part VID as a whole, an intention that an employer should not, in an endeavour to induce an existing or prospective employee to enter an AWA containing particular terms, apply pressure which, in the circumstances, is illegitimate.That intention is consistent with what appears to be the policy underlying Part VID that AWAs should be negotiated and concluded openly and freely at arm's length without outside interference and without either party being deceived or misled. The legislature's concentration on the quality of the conduct and intention of the person against whom duress is alleged is also borne out by the fact that the proscription in s 170WG(1) is cast in the form "a person must not apply duress". It is significant in the same context that the prohibition is against the application of duress "in connection with an AWA". Had it been intended to confine the penalty contemplated by s 170VV to the application of duress which results in the entry by an employer or employee into an AWA, that could have been made clear by different language in s 170WG(1)." (original emphasis)
41 Maritime Union of Australia v Burnie Port Corporation (supra) was a case where the employer had insisted on entry into an AWA as a condition of engagement of a new employee. I there adverted to the policy which may be thought to underpin the Act and continued, at [66];
"There is discernible in many provisions of the WR Act, including s 170WG, a policy that wages and working conditions are to be determined by a process of bargaining at arm's length using weapons, including protected industrial action, which the legislation impliedly regards as fair, but without resort to proscribed tactics or techniques which are to be characterised as unfair."
42 The discussion of duress in that case then ended with these paragraphs;
"This is not a case in which those alleged to have been subjected to duress were in any relationship with the Corporation, other than that of applicants for the vacant positions. If such a relationship, from pre-existing employment or otherwise, had existed, it would have been relevant to examine the circumstances of the employer's conduct to determine whether there were features which rendered illegitimate or unconscionable a threat or inducement offered to procure entry into an AWA and thereby amounted to duress.The terms of the proposed AWA in relation to those available to the rest of the employer's workforce and the relevant labour market as a whole will also have a bearing on this question of duress. In the present case, the Corporation has sought to compel prospective employees to enter into AWAs which are not markedly disadvantageous in their terms. Having regard to those considerations, what is left of the alleged duress in the present case is that entry into the AWAs was made a condition of appointment to vacancies in circumstances where the prevailing scarcity of employment made it more likely that the condition would be accepted by those interviewed. I have been unable to discern any positive conduct by the Corporation beyond its decision to offer employment under the AWAs, albeit with some knowledge of that circumstance. This, I consider, does not amount to illegitimate pressure of the kind needed to establish duress under s 170WG."
43 In my view, the consensus of the authorities to which I have referred is that duress, in the relevant sense, involves the illegitimate application of pressure to induce a party to enter into an AWA, or to discourage a party from taking that course. What is illegitimate is a question of fact to be decided in the circumstances of each case which may include whether there is an existing relationship of employer and employee or some other relationship of utmost good faith between the parties to the proposed AWA. As is made clear by the last sentence in the passage from the judgment of the Full Court in Schanka quoted at [36] above, it is not only pressure which in fact overbears the will of one party so as to result in an AWA being concluded that can amount to duress. Accordingly, I cannot accept the argument advanced on behalf of the respondents that "neither Napoli nor Canturi submitted to the alleged duress so it cannot be contended that their will was overborne, or that the conduct alleged against the respondents was illegitimate."
(iv) Did the conduct of any of the respondents amount to duress in connection with an AWA?
44 One of the circumstances against which the legitimacy or otherwise of the action taken by one or other of the respondents against the applicants has to be assessed is that they were both full-time employees of relatively longstanding. I accept that the onus of proving duress remains on the applicants and it is one which, having regard to the seriousness of the alleged contravention, has to be proved to the reasonable satisfaction of the Court in accordance with Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336.
45 I am satisfied to the requisite standard that Mr Sita indicated to each of the applicants that if he did not sign one or other version of the AWA he would be "fixed up". By that expression, Mr Sita intended to convey that each applicant would be disadvantaged in relation to the position which he then occupied vis à vis the rest of Sita's driver workforce. I also find that the threat implicit in what Mr Sita had said was carried into effect principally by each of Mr Napoli and Mr Canturi being deprived of the more lucrative and congenial work on the in-bound tourist coaches. Where conflicts have occurred in the evidence between that of Mr Sita and either of the applicants, I have preferred that of the relevant applicant unless it has been contradicted by a contemporaneous documentary record or the evidence of a witness with no continuing connection with the Sita organisation.
46 Mr Sita, although unable to articulate complex thoughts in English with complete precision and lacking a sophisticated appreciation of all the subtleties of documents written in that language, is a forceful, even dominant, personality. He quickly and accurately perceives the objectives which he considers will conduce to the success of the Sita businesses and brooks no opposition to their attainment. A perceptive assessment of Mr Sita's personality was made by Mr Napoli when cross-examined about his failure to talk to Mr Sita about what he (Napoli) perceived to be discrimination against himself. Mr Napoli said: "Because I know when he makes a decision, you can't change his mind, you can't reason." These traits have made an understandably deep impression on the minds of subordinate Sita employees, particularly those entrusted with the administration of various aspects of the business. The testimony of each of those employees who gave evidence was, I consider, affected by a concern that his or her evidence should conform with what were perceived to be Mr Sita's wishes.
47 The single most significant aspect of the treatment accorded to both Mr Napoli and Mr Canturi is the coincidence in time between their refusal to enter into AWAs and their exclusion from the preferred in-bound tourist work. It is clear that Mr Napoli was allocated to fill Mr Stampo's route service position on 15 December 1997. Mr Stampo's absence had commenced on 8 December and, for the first week, the absence was covered by part-time drivers.
48 On behalf of the respondents, it has been contended that the allocation of Mr Napoli to route service work was remote in time from his refusal to enter into an AWA which must have occurred closer to 19 November 1997. It is true that a draft AWA had been prepared by Freehills, solicitors, on that date but it was not in a form adapted for immediate signature by drivers. However, as noted in [7] of these reasons, further versions of the proposed AWAs were prepared by Freehills on 2 and 5 December 1997 and a copy of the last version signed by each driver (other than Mr Napoli, Mr Canturi and a Mr Devlin who had resigned on 12 December 1997) was lodged by Freehills at the office of the Employment Advocate under cover of a letter dated 6 January 1998. The inference which I draw from this history is that it was at some time between 8 and 15 December 1998 that the unwillingness of Mr Napoli and Mr Canturi to enter into AWAs became conclusively apparent to Mr Sita and other persons in relevant managerial positions within the Sita business. This inference is corroborated by the evidence of Mr Devlin adduced on behalf of the respondents. Although he had resigned on 12 December 1997, Mr Devlin deposed;
"I was opposed to the form of the first draft of the agreement which I had seen. I had a number of discussions with Michael Canturi, who indicated that he and Mr Napoli were opposed to the Australian Workplace Agreements and that they would not enter into such an agreement with Sita Coaches, irrespective of any terms of the agreement or changes which occurred in its conditions. Michael Canturi tried to enlist my support to oppose the agreement. I was present when Canturi and Napoli had discussions with other drivers about the implementation of the agreement and their opposition to it. Canturi had informed me that a meeting which was scheduled to be held by drivers at the Rising Sun Hotel had been "torpedoed" by George Sita."
49 I consider it inherently improbable that Mr Napoli was selected to replace Mr Stampo merely because he had experience as a route service driver. The evidence reveals that the first week of Stampo's absence was covered by part-time drivers who, presumably, had less, or no, experience of route service work. In the second place, when Mr Napoli was relieved of route service work after the discrepancy of $48 in his takings had been discovered, he was replaced, not by an in-bound tourist driver, but by a casual employee. I regard as particularly significant in this context the absence of any consultation with Mr Napoli before his transfer to route service duties, which were concededly less attractive and remunerative than the in-bound tourist work. Had the transfer not been actuated by an ulterior purpose, it would have been reasonable for Mr Sita or some other responsible managerial employee to have explored the possibility of Napoli's sharing Stampo's route service work with other drivers so as to preserve for himself at least a part of the "cream" represented by the in-bound tourist work.
50 It may be that Mr Sita did not fix irrevocably on Mr Napoli's transfer to route service work immediately after it was first effected on 15 December 1997. However, that does not preclude even that initial transfer from constituting the application of duress in connection with an AWA. If Mr Sita had allowed Mr Napoli a space for repentance of his refusal to sign an AWA between 15 December 1997 and the beginning of January 1998 when Mr Napoli's transfer to route service work became permanent, Napoli's failure to avail himself of that opportunity would not mean that there had been no application of duress in contravention of s 170WG.
51 Similar reasoning applies to the transfer, at the end of February 1998, of Mr Napoli from route service work to school bus routes and limited charter work. That, it is said, was precipitated by Mr Napoli's failure to make good the discrepancy of $48 in his takings. That failure was associated by Mr Sita with Mr Napoli's having identified himself with Mr Canturi in making trouble. Mr Sita, under cross-examination, said through an interpreter;
Mr Sita / Interpreter: |
"..... So I called him and I say, "Why don't you want to pay?" He said, "Because I don't want to pay." That's why I felt that he was working together with Mr Canturi. |
|
|
|
Mr Lawrence: (Counsel for the applicants) |
"Yes. So you thought it was more trouble-making by Mr Napoli, did you? |
|
|
|
Mr Sita / Interpreter: |
Well, that's always - it's Mr Canturi's fault because he joined this and Mr Napoli joined and he accepted to follow him." |
52 It does not appear that Mr Sita or others within managerial positions within the Sita businesses regarded the discrepancy of $48 as having resulted from a deliberate act of dishonesty by Mr Napoli. Had they done so, it is difficult to escape the conclusion that Mr Napoli would have been dismissed forthwith. The fact that Mr Napoli, after 20 February 1998, was placed on school bus work rather than being returned to in-bound tourist work which involved significantly less handling of cash and virtually no need for regular reconciliation of tickets and money, reinforces the conclusion that the original decision to transfer him to route service work was punitive or exemplary and was prompted by his failure to enter into an AWA. That conclusion becomes even easier to draw when it is remembered that Mr Napoli was not told on 20 February 1998 that his failure to make good the deficiency of $48 would result in his transfer to school bus work which was even less productive of overtime, and therefore less remunerative, than that on route services.
53 Finally, in this context, I consider that the transfer of Mr Napoli to school bus runs after 20 February 1998 reflected a continuing desire by Mr Sita to reduce, as far as practicable, Mr Napoli's ability to earn overtime at the rate prescribed by the Award rather than the lower rate which he would have obtained had he entered into an AWA in the form accepted by other employees shortly before 6 January. That desire was vividly evinced by Mr Sita in the statement attributed to him by Mr Napoli which is reproduced at [12] of these reasons. I am satisfied that Mr Sita made a statement in substantially those terms. It also accords with the practice which Mr Giovanni Bono, in the paragraph from his affidavit which is quoted at [21] above, admitted having adopted.
54 A similar evaluation of the available evidence has led me to conclude that the effective exclusion of Mr Canturi from in-bound tourist work was likewise implemented to signify Mr Sita's disapproval of Canturi's refusal to enter into an AWA and, perhaps, also to underline to other drivers that they would be disadvantaged financially were they to take the same attitude.
55 I have already noted the coincidence in time between the detrimental action taken in respect of both Mr Napoli and Mr Canturi and their having declined by the latter half of December 1997 to enter into AWAs. It was submitted on behalf of the respondents that the change in the nature of the work allocated to Mr Canturi occurred because of his alleged request in December 1997 or January 1998 not to be required to work after 5.00 pm or at weekends. That request was made, it was said, because he had obtained part-time work as a bouncer at Blazer's nightclub in Werribee.
56 Mr Canturi emphatically denied having obtained any part-time work of the kind alleged. Moreover, unchallenged evidence was given by Mr Amiridis, the manager and part-owner of Werribee Plaza Tavern, which conducted Blazer's nightclub, that the club had been closed from 24 December 1997 to 3 September 1998. As well, it was not until after his employment by Sita had been terminated that Mr Canturi obtained a crowd controller's licence under the Private Agents Act 1966 which is a prerequisite for legal employment as a bouncer.
57 The request to be relieved of night and weekend work in order to undertake employment at the nightclub was said to have been made in the presence of Dominic Sita after he (Sita) had returned from Queensland "sometime after January". Under cross-examination, Dominic Sita said that it must have been made after 6 January because that was the date on which he had returned from working in Queensland. However, an examination of Mr Canturi's job sheets reveals a total absence of in-bound tourist work from 8 December 1997, about a month before the earliest date on which the alleged request to be relieved of night and weekend work could have been made to Dominic Sita. The only recorded instances of Mr Canturi ever undertaking in-bound tourist work thereafter were a city tour for ETA occupying 5.25 hours on 29 December 1997 and a further tourist run, also for ETA, of 10.25 hours on 3 January 1998. By contrast, in the period from 13 October 1997 to 5 December 1997, Mr Canturi had been allocated 26 in-bound tourist assignments.
58 The last mentioned instance of in-bound tourist work by Mr Canturi on 3 January 1998 is itself instructive. Mr Canturi alleged in an affidavit sworn on 8 July 2000 that Sita's Operations Manager, John or Giovanni Bono, who was his (Canturi's) uncle and Mr Sita's brother-in-law, had made to him the statement reproduced at [19] above. Mr Bono did not affirmatively deny having said words to that effect to Mr Canturi. Rather he deposed;
"I was aware that Frank Napoli and Michael Canturi had refrained from signing the Workplace Agreement. I was under no instruction from Guiseppe Sita stipulating that Napoli and Canturi should not work any overtime."
59 However, the essential thrust of the complaint by both Napoli and Canturi, as must have been apparent to Mr Bono and Sita's advisers who prepared the affidavit from which I have just quoted, was not that they had been precluded from working any overtime but that they had been denied all opportunity to share in the more lucrative and interesting in-bound tourist work.
60 A similarly non-responsive answer was made by Mr Bono to the complaint, which I find was made by Mr Canturi at the squash court on 1 June 1998. Mr Canturi's account of that conversation is in para 16 of his affidavit of 8 July 2000 in these terms;
"I decided to speak with Mr Bono regarding the type of work that I was being given. Mr Bono was responsible for the preparation of driver rosters. On 1 June 1998 I had a discussion with Mr Bono, in the presence of another employee of Sita, Mr Napoli, after a game of squash. I asked Mr Bono "Why don't you start giving me other work? I am pleading with you to give me even a shopping spree trip. I'm going crazy with all the schoolwork." He said "I can't because the shopping spree bus does not come in until 5.50 p.m. and that would mean you would get overtime. I would get fired if I gave you overtime." I understood his comment to mean that he had been told by Mr Sita not to give me any overtime because I had not signed a contract. During this discussion Mr Bono said that Mr Sita had spoken to John Patton, manager of job cards, Paul Marchents, assistant operations manager and himself and had said that because Mr Napoli and myself had not signed the contracts we are not to be given any overtime."
61 Mr Bono in his affidavit sworn 12 September 2000 and filed in proceedings VG 742 of 1999 in which Mr Canturi was the applicant, did not deal in terms with the allegation just quoted. Instead, Mr Bono deposed in paragraph;
"As to paragraph 19 of the Affidavit of Francesco Napoli sworn on 14 July, 2000, I say that I was present at a squash match and played squash with both Michael Canturi and Frank Napoli, as deposed to in paragraph 19 of the said Affidavit. We were there to play squash, not to talk business. I refute absolutely the suggestion that I stated that I was under instructions from Mr Sita not to allocate overtime to Canturi and Napoli because they had not signed the contracts."
62 I am satisfied that the squash court conversation occurred substantially as Mr Napoli and Mr Canturi recounted it. I am further satisfied that Mr Bono and Mr Paton had been instructed by Mr Sita to avoid giving in-bound tourist work to Napoli and Canturi who, by late December 1997, were the only remaining full-time drivers who had not signed the proffered AWAs. It may be that Mr Bono understood that instruction to have been prompted by a desire to minimise Sita's exposure to pay overtime at the higher rate required by the Award rather than at the rate stipulated in the AWAs. An understanding of that kind is reflected in the paragraph from Mr Bono's affidavit quoted at [21] of these reasons.
63 The conclusion that Mr Sita had issued an instruction of the kind just indicated is reinforced by his reaction to Mr Bono's having allocated Mr Canturi to an in-bound tourist trip (at the request of the tour operator, ETA), on 3 January 1998. Mr Canturi's account of that incident was as follows;
"I did the ETA job on Friday and Saturday. I was due to pick up the same group on Sunday. On Saturday Mr Bono rang to say that Mr Sita had found out and that he had "hit the roof". He said "George got really angry and told me to tell you you can't do the job, so don't come in tomorrow.""
64 Mr Bono did not dispute that account. Mr Sita later claimed that his angry reaction to the allocation of Mr Canturi to the tour in question stemmed from his belief that the request for his (Canturi's) services had been made to enable him to pursue a sexual liaison with a female tour guide. I reject that assertion. In the first place, Mr Sita obviously did not give that explanation to Mr Bono. Secondly, the reason seized upon by Mr Sita in respect of work on 3 January 1998 is clearly incapable of explaining the otherwise complete exclusion of Mr Canturi from in-bound tourist work between 5 December and 28 December. Nor does it explain his total exclusion from that work after Mr Sita's outburst on 3 January 1998. In the same context, it is to be remembered that the respondents claimed that Mr Canturi had been suspected by Sita of marital infidelity since at least September 1997, but there is nothing to suggest that such suspicion impinged adversely on his share of in-bound tourist work before 5 December 1997.
65 Another explanation offered on behalf of the respondents for the changes in the work allocated to Mr Napoli and Mr Canturi was that a downturn had occurred in in-bound charter work. In this respect, Mr Sita deposed in an affidavit sworn 13 November 2000;
"For the accounts for the period ending 30 June, 1997, Sita Coaches received for charter in-bound work $4,497,487.00. In the corresponding period for the 1998 financial year, it only received $2,562,581.00. This downturn meant that there was not as much work for Sita Coach drivers, and when vacancies were required to be filled in Sita Bus Lines, rather than employing additional drivers, I re-allocated drivers from Sita Coaches to Sita Bus Lines. Mr Napoli's services were used in this way. At the time that I allocated Mr Napoli to this work, it was in no way related to the issue of the implementation of workplace agreements. As at 15 December, 1997, it was not apparent which drivers would sign the Australian Workplace Agreement, and it was not until early January, 1998 that the precise number of employees of Sita Coaches Pty Ltd who would sign the agreements became known."
66 These assertions do not explain the differential treatment accorded to Mr Napoli and they are not directed at all to Sita's conduct towards Mr Canturi. It is not made to appear when the effects of the downturn were first felt. Nor has evidence been adduced to show that other drivers were required to share the burden of the adverse consequences of the downturn. There is no suggestion that any consultation occurred with a view to achieving an equitable share of the available work which long-serving employees like Mr Napoli and Mr Canturi could reasonably have expected. It is true, as Mr Sita deposed, that it was not until 6 January 1998 that the precise number of employees of Coaches who were to sign AWAs became known. However, as I have already found, it was known by 5 December 1997 that Mr Napoli and Mr Canturi were each implacably opposed to entering into the AWA, the terms of which had by then been settled. That knowledge, I consider, was the principal explanation for their treatment after the middle of December, which treatment, I have concluded, was the application of duress in connection with an AWA.
67 In the light of the conclusion just indicated, it is strictly unnecessary to make a finding as to whether the termination of Mr Canturi's employment was an independent part of the application of duress to him in connection with an AWA. However, I record in passing my view that, by June 1998, the continuing presence in its workforce of Mr Canturi, a former "favoured son" who had been discriminately relegated to "schools and pools" was an embarrassment to Sita. Accordingly, when the pretext of the suspect workers compensation claim offered itself, it was seized upon by Mr Sita to terminate Canturi's employment.
68 This view is supported by the fact that no investigation was undertaken into the genuineness of Mr Canturi's claimed injury. Mr Sita was apparently content to rely on Mr Bono's assertion that Mr Canturi had played squash on the evening immediately after the injury was allegedly sustained. No enquiries were made of the medical practitioner who provided the certificates in support of the workers' compensation claim. Mr Sita did not, it seems, entertain the possibility that the full effects of Mr Canturi's ankle injury on 1 June 1998 might only have become apparent while, or after, he played squash. Nor is there any evidence to indicate that the views of Sita's workers' compensation insurer were sought before 17 June 1998, five days after Mr Canturi had been summarily dismissed and his workers' compensation claim rejected. Most importantly, Mr Canturi was given no opportunity to rebut the imputation of malingering.
69 It would have been necessary to consider in more detail the circumstances in which Mr Canturi's employment was terminated had I regarded them as bearing on his claim for compensation for the alleged contravention of s 298K of the Act. However, for reasons explained below, I have decided that the relief to be granted to the applicants should be confined to imposition of a penalty under s 298U and an order pursuant to s 350 for payment of the penalty to each applicant. I shall not, therefore, examine any more minutely the circumstances surrounding the termination of Mr Canturi's employment.
The claims under Pt XA of the Act
70 Section 298K(1) of the Act provides;
"An employer must not, for a prohibited reason, or for reasons that include a prohibited reason, do or threaten to do any of the following:(a) dismiss an employee;
(b) injure an employee in his or her employment;
(c) alter the position of an employee to the employee's prejudice;
(d) refuse to employ another person;
(e) discriminate against another person in the terms or conditions on which the employer offers to employ the other person."
71 Prohibited reasons for the purposes of that sub-section are identified by s 298L which, so far as is relevant, provides;
"Conduct referred to in subsection 298K(1) or (2) is for a prohibited reason if it is carried out because the employee, independent contractor or other person concerned:... ... ... ... ...
(h) is entitled to the benefit of an industrial instrument or an order of an industrial body;"
72 By his amended statement of claim, each applicant has alleged that, by reason of the events recounted earlier in these reasons, he was injured in his employment, his position was altered to his detriment and he was dismissed in contravention of s 298K(1). The reasons assigned for that prejudicial treatment are;
"..... because the Applicant's employment was governed by the Award, the Respondents regarded and treated the Applicant as being entitled to the terms and conditions of the Award, and the Applicant would not agree to a change on the basis upon which he would be employed and remunerated."
73 The contravention of s 298K(1) is not pleaded in either statement of claim as an alternative to the alleged breach of s 170WG(1). Section 298U of the Act indicates, as follows, the orders which the Court may make in respect of a contravention of Pt XA;
"In respect of conduct in contravention of this Part, the Court may, if the Court considers it appropriate in all the circumstances of the case, make one or more of the following orders:(a) an order imposing on a person or industrial association whose conduct contravened or is contravening the provision in question a penalty of not more than:
(i) in the case of a body corporate - $10,000; or
(ii) in any other case--$2,000;
(b) an order requiring the person or industrial association to reinstate an employee, or to re-engage an independent contractor;
(c) an order requiring the person or industrial association to pay to an employee or independent contractor, or to a prospective employee or independent contractor, compensation of such amount as the Court thinks appropriate;
(d) an order requiring the person or industrial association not to carry out a threat made by the person or association, or not to make any further threat;
(e) injunctions (including interim injunctions), and any other orders, that the Court thinks necessary to stop the conduct or remedy its effects;
(f) any other consequential orders."
74 Counsel for the respondents has pointed to the fact that s 298K prohibits "an employer from taking, for a prohibited reason, any of the proscribed actions." One of the prohibited reasons is that stipulated in s 298L(1)(h) that the employee concerned is entitled to the benefit of an award. In that context, it was submitted, cogently in my view, that the award must be one which binds the respondent in respect of the employee concerned. Since, so it was submitted, Bus Lines was the only respondent to the Award, Coaches, the sole employer of Mr Canturi, was never bound by the Award in respect of his employment. In a similar way, it was submitted that the transfer of Mr Napoli from Coaches to Bus Lines which, at all times, was, concededly, a respondent to the Award, was effected by Coaches and occurred before Mr Napoli became entitled to the benefit of the Award.
75 These submissions raise interesting and difficult questions, some of which I discussed in Textile Footwear and Clothing Union of Australia v Bellechic Pty Ltd [1998] FCA 1465 (19 November 1998), in the context of an assignment of a business between three companies controlled by the same individual. Those questions include whether Coaches, by its conduct, between 5 December 1997 and 6 January 1998 in suggesting to its employees in the proposed AWA that they had to make a choice between the wages and conditions prescribed by the Award and those available under the AWA on offer, was estopped from denying that it was a respondent to the Award. That estoppel was said to be available on the application of the principles discussed by a Full Court of this Court in Mobil Oil Australia Ltd v Wellcome International Pty Ltd (1998) 81 FCR 475 at 511 et seq. Another approach raises the issue of what is required to perfect the assignment of a contract of employment from one corporate employer to another, related, company. It was also contended in a related way on behalf of the applicants that the operation of s 149(1)(d) of the Act was attracted because the evidence required a finding that Coaches and Bus Lines conducted a single business or a joint venture. Alternatively, it was argued that, insofar as Coaches had been shown to have provided school bus services, it had done so as the successor or transmittee of part of the business of Bus Lines which held the licence to operate the school bus services in question. Support for this contention was said to be derived from Australian Rail Tram & Bus Industry Union -v- Torrens Transit Services Pty Ltd [2000] FCA 1683 (21 November 2000), per Mansfield J.
76 The latter submission on behalf of the applicants has much force, particularly when regard is had to Mr Bono's evidence that, in allocating employees to particular work, whether nominally for Bus Lines or Coaches, he had regard to the entitlement to overtime under the Award compared with that conferred by the AWA; see [62] above. However, it is unnecessary to resolve that issue conclusively because I consider that, insofar as Coaches' conduct otherwise contravened s 298K (and, if it is necessary to decide, s 170WG(1)), it is estopped from denying that, at the time of that conduct, it was bound by, and the relevant applicant was entitled to the benefit of, the Award.
77 The fact that each applicant has relied on conduct capable of contravening both s 170WG(1) and s 298K does not necessarily render either proceeding bad for duplicity as it might have been had it been clearly brought by way of information for a criminal offence. Sub-section 170VV(1) of the Act stipulates;
"An eligible court may make an order imposing a penalty on a person who contravenes a penalty provision."
78 By sub-s 170VV(4) "penalty provision" is defined to include, amongst others, s 170WG(1). By contrast with s 170VV(1), s 170NF(1) provides in relation to "penalty provisions" as defined in s 170ND for the purposes of Div 10 of Pt VIB of the Act;
"A contravention of a penalty provision is not an offence. However, an eligible court may make an order imposing a penalty on a person who contravenes a penalty provision."
79 Like the prefatory sentence of s 170NF(1), s 298X provides;
"A contravention of this Part [Pt XA which includes s 298K] is not an offence."
80 Since a contravention of s 298K(1) is not an offence, even if a contravention of s 170WG(1) is, a pleading which alleges both types of contravention probably does not attract the prohibition against duplicitous averments. Thus, in Concrete Constructions Pty Ltd v Plumbers and Gasfitters Employees' Union (No 2) (1987) 15 FCR 66, Wilcox J observed, at 74;
"It is an established principle of the criminal law that a single charge alleging the commission of a multiplicity of offences is defective. That principle was discussed by Woodward J in Bowling v General Motors Holden Pty Limited (1975) 8 ALR 197 at 217-218. But a proceeding for civil contempt is not a criminal prosecution, notwithstanding some similarities in the standard of proof required and in the punishment which may be awarded. The principle of duplicitous pleading has no place in the law of contempt. As Fox J said in Lazar v Taito (Australia) Pty Ltd (1985) 5 FCR 395 at 398;"The fact is, however, that what is charged is contempt of court in not complying with the relevant injunctions. The charges operate to indicate the injunction (or injunctions) relied upon, and to give brief particulars. The analogy between the charge required by the rules of court and a criminal charge is incomplete, because the person to whom an injunction is directed knows, with some precision, and specificity, what he is commanded not to do.""
81 That is not to say that there is no room in a case like the present for the avoidance of uncertainty where the same acts are capable of amounting to a contravention of two separate and self-contained provisions of the same Act. The problem has been discussed in a different context by Fitzgerald J in Linehan v Australian Public Service Association (Fourth Division Officers) (1982) 66 FLR 90 at 106-114. See also Bowling v General-Motors Holden Pty Ltd (1975) 8 ALR 197 per Woodward J at 217-218.
82 In Ex parte Polley; Re McLennan (1947) 47 SR(NSW) 391, Jordan CJ pointed out, at 392;
"The question whether an enactment creates one offence or several depends upon its subject matter and language considered in the context.In Cotterill v Lempriere [(1890) 24 QBD 634] a number of cases are collected in which it was held that enactments created two offences, and that convictions based on informations charging them in the alternative could not be allowed to stand."
Then followed extensive citations of later authority.
83 In the present case, in the light of s 298X, it cannot be suggested that the Act has created two separate offences, the application of duress in connection with an AWA contrary to s 170WG(1) and injuring an employee or altering his or her position to the employee's prejudice because he or she is entitled to the benefit of an award contrary to s 298K. However, the question remains whether the legislature intended that the same conduct should attract liability to a penalty under two different provisions. In my view, the penal character of both s 170WG(1) and s 298K(1) requires that it should only be concluded that the same conduct will expose the perpetrator to two separate penalties by way of fine if the language of the relevant provisions intractably requires that result; see eg. Garrett v Messenger (1867) LR 2 CP 583 at 585. This is not a case like In re R Hampton & Sons [1966] 1 QB 135, where the second penalty, suspension of a licence, was conditioned on a conviction which itself attracted a fine. Here, the maximum penalties imposed by each of s 170VV(2) and s 298U are identical which strongly implies that, in respect of identical conduct, they are intended to be alternative, not cumulative.
84 It may be that, in certain cases of double penalty like the present, an applicant should be allowed to elect which of the two available provisions should be applied. That suggestion has particular force where, as here, one provision (s 298U) confers, in addition to the power to impose pecuniary penalties, a power to order payment of compensation to, or the reinstatement of, an affected employee. However, in the present case, because, as noted in the preceding paragraph, the maximum penalties prescribed for each type of contravention are the same, no useful purpose would be served by requiring such an election. That is so, because on the construction which I prefer, the imposition of a penalty under s 170VV(2) does not preclude the making of an order under s 298U (other than one imposing a fine) designed to rectify the consequences of a contravention of Pt XA constituted by the same conduct as contravened s 170WG(1). That construction, which has the virtue of avoiding a double penalty, has led me to impose a penalty only under s 298U notwithstanding my conclusion that the same conduct amounted to a contravention of s 170WG(1). However, for reasons explained below, I have declined, in the exercise of the discretion conferred by the prefatory words of s 298U, to make an order for the payment of compensation to either applicant.
Penalty
85 Although Mr Sita was the moving spirit behind the contravention of both s 170WG and s 298K(1) which I have found occurred in respect of each of Mr Napoli and Mr Canturi, it is clear that he did so as the agent of either or both Coaches and Bus Lines. Of each of those companies he has at all times been the "directing mind and will" in the sense used eg. in Tesco Supermarkets Ltd v Nattross [1971] UKHL 1; [1972] AC 153, at 171. On the view I take of the matter, it is unnecessary to distinguish between Coaches and Bus Lines because each contributed, through Mr Sita and those who carried out his directions, to a single contravention of s 170WG(1) and s 298K(1) which affected Mr Napoli. I consider it to be a single contravention despite the fact that it extended over a period of months. In these circumstances, it is reasonable to fix each company with joint liability for the single contravention in respect of Mr Napoli and to attach sole liability to Coaches for the penalty payable in respect of Mr Canturi. That makes it unnecessary to attempt the difficult and highly speculative task of apportioning responsibility between the two corporate respondents for the contravention in respect of Mr Napoli.
86 In his written submissions directed to the question of penalty, Counsel for the respondents focused on that prescribed by s 298U for a contravention of s 298K. That has become convenient in view of my conclusion that a single fine should be imposed, nominally in respect of a contravention of s 298K(1). However, that is not to say that where a single fine is to be imposed for an act or series of acts contravening two different provisions, regard may not be had to each provision to discern how gravely the legislature viewed a contravention of it.
87 It was first submitted on behalf of the respondents in this context that they should be treated as first offenders. There is no evidence of any finding against any of the respondents by this Court or any other tribunal of any past breaches of the Act or of corresponding obligations imposed on employers. I have therefore assessed the penalties on the basis that each corporate respondent is a first offender.
88 It was next submitted by Mr Isles for the respondents that there offences did not involve serious breaches of the Act and should be regarded "as being at the lower end of the scale". I disagree. In the first place, the "scale" indicated by the maximum fine of $10,000 prescribed by s 170VV(2) is applicable to a range of offences in connection with AWAs in addition to the application of duress. Those offences include coercing or attempting to coerce another party to appoint, or not to appoint, a particular bargaining agent [s 170VK(4)]; making a false or misleading statement in a declaration filed with the Employment Advocate [s 170VP]; a breach of an AWA [s 170VT]; engagement in industrial action before the nominal expiry date of an AWA [s 170VU]; and dismissing or injuring an employee in his or her employment or altering the position of an employee to the employee's prejudice wholly or partly because the employee has taken AWA industrial action [s 170WE(1)]. I regard the contravention of s 170WG(1) as being at the higher end, if not the highest point, of the scale of gravity constituted by the range of offences enumerated in s 170VV(4). The application of duress strikes fundamentally at what the Full Court in Schanka in the passage quoted at [40] above, discerned to be the policy underlying Pt VID of the Act that "AWAs should be negotiated openly and freely at arm's length." The requisite openness and freedom is lost if one party to an existing relationship in a position of great economic superiority uses that advantage to apply illegitimate or unconscionable pressure to induce the other party to enter into an AWA. A similar reference to the policy underlying Pt VID of the Act was made by Moore J when he came to consider the question of penalty in Schanka [Schanka v Employment National (Administration) Pty Limited [2001] FCA 1623; (2001) 110 IR 97]. In that part of his judgment which concerned penalty, his Honour said, at [75];
"Several aspects of this case point the need for a penalty which is something more than nominal. First, the application of duress by ENA deprived Schanka, Walden, Brushe and Burns of an opportunity to negotiate about the form of agreement which would govern their employment with ENA, undermining the object contained in s 3(c) of the WR Act. Secondly, the conduct that constituted duress formed part of a deliberate industrial strategy on the part of ENA. Thirdly, ENA was a corporation wholly owned by the Commonwealth and was a statutory authority for the purpose of s 7 of the Public Service Act 1922 (Cth). The community has a legitimate expectation that it comply strictly with the WR Act. A mitigating circumstance is that each of the contraventions arose from a single course of conduct on the part of ENA. In accordance with the principle of totality, the total of the penalties should be just and appropriate in the circumstances."
89 Similar features attend the range of conduct in contravention of Pt XA for which s 298U(a) imposes maximum fines. That conduct extends from dismissal to minor alteration of an employee's position to his or her prejudice [s 298K(1)] for any one of a multitude of reasons enumerated in s 298L(1). It includes inducing an employee to cease being an officer or member of an industrial association [s 298M] and an employee ceasing to work for an employer because, amongst other things, the employer has given evidence in a proceeding under an industrial law [s 298N(e)]. It is extended, as well, by Div 5 of Pt XA to coercive conduct by industrial associations. As with the contravention of s 170WG constituted by the same conduct, I regard conduct in breach of s 298K(1)(b) or (c) because the employee concerned is entitled to the benefit of an award as being at the graver end of the range of possible contraventions of Pt XA.
90 In Construction Forestry Mining and Energy Union v Coal & Allied Operations (No 2) (1999) 94 IR 231, Branson J considered how an employer's conduct should be evaluated for the purpose of imposing a penalty under s 298U of the Act and observed, at 232;
"The Act gives no explicit guidance as to the circumstances in which an order imposing a penalty under s 298U of the Act will be appropriate or as to the circumstances in which a penalty of or near the maximum, or alternatively of a lesser amount, may be called for. The Court is simply directed to consider what is appropriate in all the circumstances of the case.The following matters, which are not intended to comprise an exhaustive list, seem to me to be considerations to which the Court may appropriately have regard in determining whether particular conduct calls for the imposition of a penalty, and assuming that it does, the amount of the penalty:
(a) The circumstances in which the relevant conduct took place (including whether the conduct was undertaken in deliberate defiance or disregard of the Act);
(b) Whether the respondent has previously been found to have engaged in conduct in contravention of Part XA of the Act;
(c) Where more than one contravention of Part XA is involved, whether the various contraventions are properly seen as distinct or whether they arise out of the one course of conduct;
(d) The consequences of the conduct found to be in contravention of Part XA of the Act;
(e) The need, in the circumstances, for the protection of industrial freedom of association; and
(f) The need, in the circumstances, for deterrence."
91 The circumstances of the present case are different from those examined by Moore J in the last Schanka judgment cited at [88] and by Branson J in Coal & Allied Operations (No 2), above. However, in my view, they also, in combination, attract a penalty which is substantially more than nominal. The respondents' contraventions were clearly intentional and can be taken to have had a significant effect on the minds of other employees as well as on the two applicants to whom the duress was directly applied and who were directly injured in their employment. Moreover, the respondents, far from displaying contrition, have persisted throughout the protracted course of the proceedings and against the weight of evidence and the probabilities, in endeavouring to attribute other, innocent, reasons for the discrimination to which each applicant was clearly subjected.
92 Contrary to the submission of Counsel for the respondents, I do not regard the fact that the contraventions "involve conduct towards family members as opposed to strangers" as palliating the respondents' offences. If anything, the closeness of the relationship between Mr Sita and the applicants in conjunction with the length of their service in the Sita business might have been thought to give rise to an expectation on their part of more than usual considerateness. Whether or not that be so, I have regarded the "family connection" as neutral on the assessment of penalty.
93 I also consider that the circumstances of this case, including those to which I have just adverted, make it one in which the penalty should reflect the need for deterrence. It must be brought home to the respondents that this Court will not overlook intentional conduct which sets at nought protections which, even a cursory reading of the Act shows, have been deliberately inserted to balance the interests of employers and employees in relation to AWAs and the benefits obtainable under awards or certified agreements. As well, the Court's disapproval must be signified in terms which bring the same lesson home to other employers who might be minded to take a similar cavalier attitude to the prohibitions in s 170WG and s 298K.
94 A most significant component of any penalty to be imposed in this case must reflect the financial consequences for the applicants of the contraventions. I have already noted at [84] of these reasons that it is open, independently of the imposition of a penalty under s 170VV or s 298U, to make orders for compensation under par (c) of the latter section to be paid to each of the applicants. However, the assessment of compensation of the kind contemplated by that paragraph would be fraught with considerable difficulty and uncertainty. It would require an investigation of how much overtime Mr Napoli and Mr Canturi would have earned had they received an equitable share of the in-bound tourist work from mid-December 1997 until the termination of their respective employments. From the amounts suggested by that investigation, would have to be deducted overtime received from "schools and pools" work or route service work which could not have been earned had each applicant done the share of in-bound tourist work which the investigation imputed to him. As well, a prediction would have to be made of how long each applicant would have remained in the employ of Sita before that employment was terminated for reasons unrelated to the application of duress or his entitlement to the benefit of the Award; see eg. Kenefick v Australian Submarine Corporation Pty Ltd (No 2) (1996) 40 AILR 3-352 per Wilcox CJ. From the earnings which would have been derived during that predicted period would have to be deducted the amount which each applicant actually earned, or could reasonable have earned, from some other remunerative activity. Compensation calculated in that way would have to reflect the total overtime together with the ordinary earnings presumptively lost expressed as a gross amount which would be exigible to income tax; Wheeler v Philip Morris Ltd (1989) 32 IR 323, at 352-353.
95 In the light of all these considerations, I have concluded that a preferable exercise of the Court's discretion is to decline to make any order for compensation pursuant to s 298U(c) but to take into account, in fixing a penalty under s 298U(a), the fact that each applicant has suffered a significant actual financial detriment as a result of the respondents' conduct. Taking that matter into account in conjunction with the need for deterrence and the other considerations outlined earlier in this part of these reasons, I fix the penalty for which Coaches shall be liable in Mr Canturi's application at $7,000. Likewise, the penalty for which Coaches and Bus Lines shall be jointly liable on Mr Napoli's application is also fixed in the sum of $7,000. A measure of compensation for the detriment I have just identified will be afforded to each applicant as I propose to order, pursuant to s 356(b) of the Act, that the whole of the penalty in each case be paid to the applicant. In opposing that course, Counsel for the applicants submitted;
"This is a case in which the applicants have been funded by the Office of the Employment Advocate. Accordingly, to the extent that the penalties are to be paid to compensate the applicants in respect of their costs, the costs have been borne by a Commonwealth agency and the Commonwealth should be remitted them."
However, there is no evidence before the Court to support that assertion. If arrangements have, in fact, been made between the applicants and the Office of the Employment Advocate for the funding of the litigation, it will be for the applicants to discharge their obligations under those arrangements out of the payments by way of penalty which I shall order to be paid to them.
Conclusion
96 For reasons which I have endeavoured to explain, there will be an order in each matter for the payment of a penalty of $7,000. It is intended that, in VG 743 of 1999, the two corporate respondents will be jointly and severally liable for payment of that penalty. In each case it will be ordered, pursuant to s 356(b) of the Act, that the penalty be paid in full to the applicant. I shall allow 21 days from the date of the Court's order for payment of the penalty. Each application will otherwise be dismissed.
I certify that the preceding ninety-six (96) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Ryan. |
Associate:
Dated: 27 March 2002
Counsel for the Applicant: |
Mr B Lawrence |
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Solicitor for the Applicant: |
Mason Sier Turnbull |
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Counsel for the Respondent: |
Mr James Isles |
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Solicitor for the Respondent: |
Issac Brott & Co |
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Dates of Hearing: |
2, 3, 4 and 5 October, 21, 22 23 and 24 November and 19 December 2000 and 21 February 2001. |
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Date of Judgment: |
27 March 2002 |
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