Wintle v RUC Cementation Mining Contractors Pty Ltd (No.2) [2012] FMCA 459 (8 June 2012) Last Updated: 13 June 2012 FEDERAL MAGISTRATES COURT OF AUSTRALIA WINTLE v RUC CEMENTATION MINING CONTRACTORS PTY LTD (No.2) [2012] FMCA 459 INDUSTRIAL LAW – Alleged dismissal in contravention of general protection. PRACTICE AND PROCEDURE – Summary dismissal – default – no reasonable prospect of success – failure to comply with orders – effect of affidavits where no pleadings. WORDS AND PHRASES – “undue influence” – “undue pressure” – “deduction” – “in relation to”. Building and Construction Industry Improvement Act 2005 (Cth) Evidence Act 1995 (Cth), ss.56(2) , 131 (1) Fair Work Act 2009 (Cth), ss.50 , 55 (1), 117 , 323 (1), 341 (1)(b) and (2)(k), 344 , 345 , 351 (1), 369 , 371 (1)(a) and (2), 772 , Part 3 - 1 Fair Work Bill 2008 (Cth), Explanatory Memorandum Federal Court of Australia Act 1976 (Cth), s.31A(2)(b) Federal Magistrates Act 1999 (Cth), ss.17A , 18 Federal Magistrates Court Rules 2001 (Cth), rr.4.05(2) and (3), 13.03A(1)(a), 13.03B(1)(c), 13.10 Australian Communications Network Pty Ltd & Anor v Australian Competition & Consumer Commission (2005) 224 ALR 344 ; [2005] FCAFC 221 Barnes v Northern Territory Legal Aid Commission [2012] FMCA 274 Construction, Forestry, Mining and Energy Union v Mammoet Australia Pty Ltd (2011) 254 FLR 59 ; [2011] FMCA 802 Dandaven v Harbeth Holdings Pty Ltd [2008] FCA 955 Dey v Victorian Railways Commissioners [1949] HCA 1 ; (1949) 78 CLR 62 General Steel Industries Inc v Commissioner for Railways (NSW) & Ors [1964] HCA 69 ; (1964) 112 CLR 125 George v Fletcher (Trustee) [2010] FCAFC 53 Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd (2008) 167 FCR 372 ; [2008] FCAFC 60 John Holland Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union & Ors (2009) 174 FCR 526 ; [2009] FCA 235 Kurniadi & Ors v Loh & Ors [2003] FMCA 24 Matheson v Findex Australia Pty Ltd (2011) 252 FLR 197 ; [2011] FMCA 135 O’Grady v The Northern Queensland Company Ltd [1990] HCA 16 ; (1990) 169 CLR 356 Oorloff & Anor v Lee & Ors [2004] FMCA 893 Portuguese Cultural & Welfare Centre Inc v AMCA (2011) EOC 93-600 ; [2011] FMCA 144 Rana v University of South Australia (2004) 136 FCR 344 ; [2004] FCA 559 Re Wakim; Ex parte McNally & Anor (1999) 198 CLR 511 ; [1999] HCA 27 Reading v Partnership of Western Diagnostic Pathology [2008] FCA 1381 Stuart v Construction, Forestry, Mining and Energy Union (2009) 190 IR 82 ; [2009] FCA 1119 Stuart v Construction, Forestry, Mining and Energy Union & Anor (2010) 185 FCR 308 ; [2010] FCAFC 65 University of New South Wales v Huang [2012] FCA 308 Wintle v RUC Cementation Mining Contractors Pty Ltd [2012] FMCA 140 The Macquarie Dictionary (2 nd Edn) (Macquarie University: The Macquarie Library Pty Ltd, 1991) Applicant: ALAN GEOFFREY WINTLE Respondent: RUC CEMENTATION MINING CONTRACTORS PTY LTD File Number: PEG 198 of 2011 Judgment of: Lucev FM Hearing dates: 1 and 30 May 2012 Date of Last Submission: 30 May 2012 Delivered at: Perth Delivered on: 8 June 2012 REPRESENTATION For the Applicant: In person Counsel for the Respondent: Mr P Jarman (1 May 2012) and Mr S Heathcote (30 May 2012) Solicitors for the Respondent: Jarman McKenna ORDERS (1) That the respondent’s application in a case filed 16 February 2012 be dismissed. (2) That the matter be adjourned to a directions hearing at 4.00pm on 29 June 2012. FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PERTH PEG 198 of 2011 ALAN GEOFFREY WINTLE Applicant And RUC CEMENTATION MINING CONTRACTORS PTY LTD Respondent REASONS FOR JUDGMENT Application in a case On 16 February 2012 the respondent, RUC Cementation Mining Contractors Pty Ltd, [1] filed an application in a case seeking dismissal of the application made by the applicant, Mr Wintle. Mr Wintle’s application alleges that he was dismissed by RUC in contravention of a general protection and unlawfully, under Part 3 - 1 and s. 772 of the Fair Work Act 2009 (Cth) [2] respectively. Litigation history On 14 March 2012 this Court delivered Reasons for Judgment in relation to the respondent’s application in a case. [3] In RUC Cementation the Court observed that: 10. When the matter came before the Court for directions on 4 November 2011, the Court had concerns about the content and form of the application and Initial Claim Form, the evidence in support of the claim, and the lack of clarity in relation to what was being asserted by way of fact and law in relation to the claim. [4] The Court made orders on 4 November 2011, the effect and purpose of which was described in RUC Cementation as follows: 12. Because of the paucity and vagueness of the factual material set out in the Initial Claim Form, the 4 November 2011 Orders provided an opportunity for Mr Wintle to file an amended claim form, any affidavits in support of the claim, and an outline of contentions of fact and law. The purpose of so doing was to have the alleged contraventions properly set out so that they could be understood by RUC, and by the Court, and be properly responded to by RUC for the purposes of the hearing, now listed for 8 and 9 August 2012 in Kalgoorlie. [5] On 22 November 2011 Mr Wintle filed an “Amended Form 2 – Claim under the Fair Work Act 2009 alleging dismissal in contravention of a general protection”. [6] In RUC Cementation the Court made the following observations concerning the Amended Claim Form, and the level of compliance with the Court’s orders of 4 November 2011: 18. Unlike the Initial Claim Form there is no attachment to the Amended Claim Form, setting out in numbered paragraphs, or otherwise, the facts relied upon or the provisions of the FW Act relevant to the claim. 19. The Amended Claim Form contains no additional facts relating to the alleged contraventions under ss.772, 344 and 345 of the FW Act. Indeed it contains no facts at all, and it has done nothing to provide further clarity in relation to the claim. Likewise, Mr Wintle’s Affidavit contains no factual material relating to the alleged contraventions, and it is so devoid of detail that, effectively, no affidavit in support of the claim has been filed. No outline of contentions of fact and law was filed. 20. In the circumstances, the Court agrees with the submissions of RUC that the 4 November 2011 Orders have not been complied with, at least insofar as order 1(c) required the filing of an outline of contentions of fact and law. And although the 4 November 2011 Orders provided for the filing of “any affidavit in support of the application and claim”, which, technically is not an absolute order requiring the filing of a further affidavit, and therefore the failure to file an affidavit is not a default, it was certainly the expectation of the Court, given what had occurred, that Mr Wintle would file a further affidavit or affidavits. 21. Given that the purpose of making the 4 November 2011 Orders was to have factual and legal contentions before the Court to enable RUC to join issue with Mr Wintle, the failure to comply is of concern. The real question is whether, ultimately, it is sufficiently serious, at this stage, to warrant dismissal of the application under r.13.03B(1)(a) of the Federal Magistrates Court Rules 2001 (Cth), for default in failing to comply with orders of the Court. That question requires the Court to objectively assess all of the circumstances, and to determine if Mr Wintle ought to be given a further opportunity to put his claim into proper order. In the circumstances, and a) given that: i) this is the first occasion on which Mr Wintle has not complied with orders of the Court; ii) Mr Wintle is self-represented; b) having some regard for the submission made at hearing that Mr Wintle did not understand what was required of him by the 4 November 2011 Orders; and c) bearing in mind this Court’s “exceptional caution” when determining whether to dismiss claims containing allegations of unlawful discrimination (albeit allegations in this case under the guise of the adverse action provisions of the FW Act), there is a basis for affording Mr Wintle a further opportunity to put his claim in proper order. The Court considers it appropriate that Mr Wintle be afforded that opportunity, and therefore there will be orders requiring Mr Wintle to file and serve an amended application, a further amended Form 2, and affidavits to be relied upon at hearing. [7] The form of order 2 of the Court’s orders of 14 March 2012 was emphatic and directory. The order was in the following form: (2) That the applicant file and serve: (a) an amended application; (b) a further amended Form 2 – Claim under the Fair Work Act 2009 alleging dismissal in contravention of a general protection; and (c) affidavits to be relied upon at hearing, by 10 April 2012. Although not specifically adverted to in the Reasons for Judgment, the Court refrained from making further orders with respect to the filing of outlines of contentions of fact and law because it was apparent that Mr Wintle’s level of written expression was such that any order to do so would not yield an outline which was sufficiently sensible or useful to facilitate the Court’s task in determining the application. In RUC Cementation the Court went on to discuss whether the application as framed in the Amended Claim Form had reasonable prospects of success. The Court said: 27. ... Given the conclusion that has been reached above concerning the filing and service of an amended application, a further amended Form 2, and affidavits to be relied upon at hearing, it is unnecessary to further consider the question of reasonable prospects of success, at this stage. If, however, the amended application and Further Amended Claim Form, when read with the affidavit evidence filed by Mr Wintle, do not overcome the issues highlighted by this Court on 4 November 2011, and at the hearing of this application in a case, it will be open for RUC to make application for summary dismissal of the claim, or to strike out parts of the claim. 28. The Court shares the concern expressed by Counsel for RUC at hearing that the submissions made by Mr Wintle at hearing did not reveal an appreciation of the necessity to further amend the claim to put it into proper order. For that reason, taken together with the opportunity to be afforded to Mr Wintle to amend the application, further amend the claim, and to file affidavits to be relied upon at hearing, the Court will adjourn the application in a case until: a) an amended application; b) a further amended claim form; and c) affidavits to be relied upon at hearing, have been filed by Mr Wintle. Leave will be granted to RUC to file an amended application in a case within 14 days of the filing of the above documents. [8] With respect to the claim of unlawful termination under s.772 of the FW Act the Court in RUC Cementation made a declaration that it was without jurisdiction to hear and determine that claim. [9] The Court did, however, note that if Mr Wintle was to bring an adverse action claim under s.351(1) of the FW Act he would be required to further amend the application and the Amended Claim Form, but no extension of time would be required as there was already a general protections court application within jurisdiction made within the required 14 days of the issuance of a certificate under s.369 of the FW Act . [10] Compliance with the orders of 14 March 2012 Mr Wintle has not filed an amended application, or a further Amended Claim Form in accordance with the orders of 14 March 2012. Although not filed within the times specified when the orders were made in Court on 14 March 2012, a further affidavit was filed on 30 April 2012, having been sworn on 26 April 2012. [11] The Court also notes that there are two further affidavits sworn and filed on 8 March 2012 [12] which were disregarded for the purposes of the judgment in RUC Cementation , for reasons there set out. [13] Although disregarded for the purposes of the Judgment in RUC Cementation , it is appropriate to examine, and, if necessary, have regard to, the 8 March 2012 Affidavits, and to the subsequent 30 April 2012 Affidavit, in considering whether, on all the available materials, Mr Wintle’s application has a reasonable prospect of success. [14] Mr Wintle’s written English expression is not of a high standard, and ascertaining the precise factual content and meaning of his Affidavits is occasionally somewhat difficult. The 8 March 2012 Affidavits The First 8 March 2012 Affidavit consists largely of irrelevant and inadmissible material, including: copied parts of earlier orders of the Court; references to, and copies of documents related to, without prejudice settlement discussions and offers; and submissions on procedural issues unrelated to the substantive merits of the application. [15] The First 8 March 212 Affidavit does, however, make a number of points, including: that The original Application from the Applicants contention fact of law still applies. The Applicant has supplied the facts relied on and has made no amendments. The Court has taken this to mean that the applicant still relies upon any facts set out in his original application, including the Initial Claim Form. In the Initial Claim Form Mr Wintle alleged contraventions as follows: 344 UNDUE INFLUENCE OR PRESSURE (1) An employer must not exert undue influence or undue pressure On an employee in relation to a decision by the employee (e) Agree or not agree, to a deduction from amounts payable to the Employee in relation to the performance of work Due pressure and influence was applied in a Intimating way by placeing me in a room with Gavin hazel And graham Fleming then telling me that a complaint had been Made, and then placing a document in front of me telling me I need You to sign it When no investigation had been made to confirm the compliant Or who made the compliant Defrauding me of payment in lieu of notice’s Causing me a detriment and pecuniary gain an amount of money That I was entitled to As per agreement 345 MISREPRESENTATION (1) A person must not knowingly or recklessly make a false or misleading Representation about (a) The work place rights of another person Gavin represented the views, claims, have and industrial association That he did not verierfie I went to the so-called company who made the compliant Verbally asked if they made a compliant I was told that they had not Made any compliant I went back under instructions from the police Force with a written account of what really happened to verifier it The manger read it and in front of a witness verified what happened He asked why I was speaking to him about it that I should take It up with Gavin hazel [16] The Initial Claim Form also claimed what was described as “wage income” for the period from 31 May 2011 to 18 July 2011 at what was described as the “agreement rate”. that: 11. The Respondent did not provide any written prove at dismissal of the compliant or follow the Work Place agreement over the work place performance in the probationary period as per Workplace Agreement which both partys have signed at time of employment. The respondent has a copy of the Evidence to defend this claim (The Registered Workplace Agreement) and the Employee file at the company office as per Workplace Agreement 4.2. and 14. The Applicant is entitled to compensation as a result of the termination as the Registard Work Place Agreement procedure was not applied in the Dismissal that was signed by both partys at employment. Attached to the First 8 March 2012 Affidavit is Annexure B which is variously asserted in the First 8 March 2012 Affidavit to be part of a registered workplace agreement, or enterprise agreement, and which provides as follows: 4.2 DISMISSAL An employer may dismiss an employee if there is a valid reason connected with the employee’s capacity or conduct or based on the employer’s operational requirements. In circumstances where an employee is not performing up to standard the following procedure should be followed if it is likely that no improvement in the performance would result in the employee’s dismissal:- 1. A written statement as to what performance is deficient and how long the employee has to rectify the deficiency should be prepared. 2. The employee should be given a copy of the written notice and sign the file copy of the notice. 3. If dismissal becomes necessary, a written statement should be placed in the employee’s personnel file by a competent member of RUC management stating the ongoing substandard performance. Apart from summary dismissals, dismissal is the final step in the disciplinary procedure and should only be taken if all efforts to change behaviour or performance have failed. Dismissal is the termination of a contract of employment. Dismissal must therefore be made in accordance with the terms of the contract of employment. Dismissal may be instant, ie. summary, or in accordance with a notice specified in the contract. IN THE MAJORITY OF CASES DISMISSAL WILL BE WITH NOTICE. 4.2.1 Summary Dismissal RUC has the right to instantly dismiss an employee when that employee engages in conduct that is so serious that it strikes at the heart of the employment contract, and destroys the working relationship. In such cases there is no requirement for notice to be given to the employee, or payment in lieu of notice. However, it is imperative that a thorough investigation be conducted. [17] the First 8 March 2012 Affidavit has annexed Mr Wintle’s letter of termination, [18] the substantive content of which is as follows: In Reference to No: 4.2.1 of the RUC Cementation Human Resources Management Plan a complaint has been lodged against you by a company supplier regarding actions that you completed at their business recently which goes against RUC protocol. In relation to this incident your employment with RUC has been terminated effective immediately. [19] 15. The Second 8 March 2012 Affidavit suffers from similar defects with respect to irrelevant and inadmissible material as the First 8 March 2012 Affidavit. However, it also asserts that Mr Wintle’s contentions of fact and law are outlined in the Initial Claim Form, and annexes a copy of the alleged contraventions taken from the Initial Claim Form, as set out above. [20] The claim which then follows is in the following terms as the struck-out s.772 claim, namely: (351) 772 employments not to be terminated on certain grounds (1) An employer must not terminate an employee’s employment of one or More of the following reasons or for reasons including one or more Of the following reasons (f) Race, colour, sex, sexual preference, age, physical or mental disability, Marital status, family or career’s responsibilities, pregnancy, religion Political opinion, national extraction or social origin I am a western Australian qualified tradesperson My qualified technical knowledge and training was causing A problem for several of their foreign employee’s And apprentices, resulting in threats intimidation and false Accusation on a daily basis It was causing graham Fleming and Gavin hazell a problem The English worker was continually getting upset and when major Repairs had to be done to a procedure Or when they were going to be reprimanded by some one of Authority over there conduct. [21] which is in the same terms as the struck-out s.772 claim but amended by the inclusion of “(351)”. [22] The Court has taken this to be Mr Wintle’s attempt to amend his claim to make a race-based adverse action claim relying on s.351(1) of the FW Act . 30 April 2012 Affidavit The 30 April 2012 Affidavit is afflicted by the same relevance and admissibility problems as the First and Second 8 March 2012 Affidavits. Mr Wintle does however attach what he describes as accounts of the events which ultimately led to the termination of his employment, which accounts are in the following terms: 31/6/2011 STATEMENT OF EVENTS AT THE NISSIAN WORKSHOP i lleft the workshop and drove to the nissian dealer s back drive way I entered the first workshop and spoke to a south afrian how as drilling holes in a roo bar on a hoist he told me to go to the top workshop and speak to them i walked up to the workshop and to the counter there was two people leaning on it and one sitting behind it i asked if there would have the torque specifarcation for the clyinda head on a gu y 61 model nissian patrol the person said that it was a torque type and walked around the counter to a computer and brought up the procedure and read it out i said that was the same as the manual i walked over to a engine the same that was on a stand and asked if they removed the front cover to remove the clyinda head i asked what why Iv 51 one was in the work shop that question was not answered but the young mechinca said it did not need to be i said that the fuel pump would not line up i also said that the vechical were having brake fade problems he gave no reason for it i told the manger that the new model was cutting out at 2400 to 2600 rpm he did not give a reason for it as i walked out towards the door way i asked the bloke if he new the torque setting for drum brakes i walked over to a vechical on the hoist pointed to the brake drum and explianed that i had appreticnce over ajusting brake,s and wanted to set the torque with a spring gauge he replied that theren would be setting for it if someone wanted to look it up I thank the person and walked off the vechical. [23] and OFFICE DISSMISSAL I,ve had a compliant Alan (Gavin) Yeah that’s all wrights (Alan) Westland autos, have said that you basically just walked in to the workshop and demand information without going through the front count I am led to believe that there was also saying that if she can’t help you out That dealing with ruc purching vehicle from us will be under jeopardy (Gavin) i categoryly denie that full stop (alan) well I don’t thing they would say it if it was,nt said (gavin) aur goldfields service department in way he went straight through the workshop and all the mechanics looked at all the vehicles that were in the service bay there. Luckily Ron was there to help him He rang then and there wanting information Ron explained that he was at his desk And helped him then asked Alan give him ten minutes a call back Alan basically told Ron if he mucked around the dealing purchasing of vehicle Would be under jeopardy (Gavin) I would like to categoryly denie that full stop (Alan) alright you have every right to do that Basically i want you to read this um I am letting you go (Gavin) Ok no worries Thanks for the help (Alan) Yeah I just need to you to sign it I sign and you get a copy as well (Gavin) Are don’t sign anything cob (Alan) I, all sign right here (Gavin) You just let me go mate (Alan) At the end of the day I will pay you till the end of the day (Gavin) Alan year see use in court (Alan). [24] 1 May 2012 hearing At the hearing on 1 May 2012 the Court raised with Counsel for RUC whether, if the summary dismissal was not justified: Mr Wintle might have a claim against RUC in the Court’s associated jurisdiction [25] in relation to a breach of contract for failure to provide notice, or make a payment in lieu of notice, whether notice was: for an express period under the contract of employment; or reasonable notice if there was no express period of notice; and alternatively, whether: there might be a similar claim to that in sub-paragraph (a) if the Enterprise Agreement entered into by Mr Wintle contained a term as to notice; and in any event, having regard to s.55(1) of the FW Act , which provides that National Employment Standards must not be excluded, whether there might be a contravention a National Employment Standard in s.117(2) and (3)(a) of the FW Act which provides for a minimum period of one week’s notice, or payment in lieu thereof, for a person, such as Mr Wintle, with less than one years service. After the above matters were raised by the Court, the 1 May 2012 hearing of the application in the case was adjourned, and both parties attended further mediation, which, regrettably, has thus far been unsuccessful, but which presently stands adjourned by a Registrar of this Court to a date to be fixed. 30 May 2012 hearing At the 30 May 2012 hearing RUC relied on its earlier submissions, but focused on arguments in relation to s.344(e) and s.345(1) of the FW Act . In relation to the claim of undue influence or undue pressure under s.344(e) of the FW Act RUC said that there was no or no sufficient evidence that: there was undue influence or undue pressure; Mr Wintle was required “to agree, or not agree, to” anything; and even if there was such evidence, there was no “deduction from amounts payable to ... [Mr Wintle] in relation to the performance of work”, and that payment in lieu of notice was, in fact, compensation for not working, rather than an amount payable for the “performance of work”. Mr Wintle asserted that there was evidence of undue pressure based on his being in a room alone with two representatives for RUC, in circumstances where he was being told that he was required to sign the Termination Letter, and he relied in particular upon the use of the words “I just need you to sign it” as evidence of undue pressure. [26] Concerning the allegation of misrepresentation in relation to a workplace right under s.345(1) of the FW Act , RUC submitted that no workplace right had been misrepresented, either knowingly or recklessly, to Mr Wintle. Mr Wintle said there was misrepresentation in relation to a workplace right by RUC because there was no verification of the facts upon which his summary dismissal was based, as evidenced by the use of the phrase “I am led to believe”. [27] There was therefore, Mr Wintle said, no substance to the complaint made about him, and it was made knowing that to be the case, and without the required investigation, and was therefore knowingly or recklessly false or misleading. Consideration – summary dismissal Bases for application in case RUC puts the application in a case for summary dismissal of the application on two bases: the failure to disclose a case with reasonable prospects of success; and Mr Wintle’s failure to comply with earlier orders of this Court. Does not disclose a case with reasonable prospects of success Legal principles Section 17A of the FM Act provides as follows: (2) The Federal Magistrates Court may give judgment for one party against another in relation to the whole or any part of a proceeding if: (a) ... (b) the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding. (3) For the purposes of this section, a defence or a proceeding or part of a proceeding need not be: (a) hopeless; or (b) bound to fail; for it to have no reasonable prospect of success. It is also relevant to note that r.13.10 of the Federal Magistrates Court Rules 2001 (Cth) [28] provides as follows: The Court may order that a proceeding be stayed, or dismissed generally or in relation to any claim for relief in the proceeding, if the Court is satisfied that: (a) the party prosecuting the proceeding or claim for relief has no reasonable prospect of successfully prosecuting the proceeding or claim; ... The Federal Court possesses a like power under s.31A(2)(b) of the Federal Court of Australia Act 1976 (Cth) . In relation to that power it has been observed that: a court must be satisfied that the applicant has no reasonable prospect of success, and whilst a court need not be satisfied that the proceeding is hopeless or bound to fail, it must be very cautious not to do a party an injustice by summarily dismissing proceedings; the legislature’s intention in introducing the provisions concerning summary dismissal was: to lower the bar for obtaining summary judgment (including summary dismissal) below the level that had been fixed by authorities like Dey v Victorian Railways Commissioners [29] and General Steel Industries Inc v Commissioner for Railways (NSW) & Ors [30] which required that the allegations be quite clearly so untenable that they could not possibly succeed; not to require the Court to engage in lengthy and elaborate hearings on an interlocutory basis for the purposes of determining whether or not a proceeding has no reasonable prospects of success. It may be necessary for the opposing party to provide no more than an outline of evidence, sufficient to show that there is a genuine dispute, to prevent the summary application becoming a hearing; and not to remove the bar completely; the mere presence of a trifling, implausible, tenuous or tangentially relevant factual controversy is not a bar to the exercise of the summary dismissal power; what is required is a prediction of the outcome of a trial on the merits but not an actual adjudication of those merits; if evidence can give colour and content to allegations, and questions of fact and degree are important, the Court should be more reluctant to dismiss a proceeding on the face of a pleading; if there is a real issue of fact or law to be decided, and the rights of the parties depend upon it, it is obviously appropriate that the matter goes to hearing. It cannot be said that where there is a real factual dispute and that factual dispute must be resolved to determine whether the claim succeeds that there is ‘no reasonable prospect of success’; it ought not be used to shut out proceedings where, on a proposition of law, there may be room for doubt. On questions of law, an inquiry as to their merit should not be for the purpose of resolving them and also not simply to determine whether the argument is hopeless, but in order to decide if it is sufficiently strong to warrant a hearing; evidence of an ambivalent character will usually be sufficient to amount to reasonable prospects; and in determining if there are real issues of fact in issue so as to preclude summary judgment the courts must draw all reasonable inferences in favour of the non-moving party. [31] In Oorloff this Court observed that in summary dismissal applications the Court was not limited to the arguments put before it, but may look at all of the material to assess independently whether an arguable case based on the material could be made out. [32] The Court also refers to the Federal Court’s judgment in University of New South Wales v Huang [33] delivered after the making of the Court’s orders of 14 March 2012, where the Federal Court observed as follows: 36 In Rana v University of South Australia (2004) 136 FCR 344 ; [2004] FCA 559 (Rana) , Lander J dealt with an appeal against a decision of a Federal Magistrate to strike out claims brought by the appellant under the Disability Discrimination Act 1992 (Cth) and the Racial Discrimination Act 1975 (Cth). In that decision, his Honour pointed out that the Federal Magistrates Court had been established to deliver justice to parties before it without undue formality or protraction and at a lower cost (see at [25]). Consistent with this philosophy, his Honour noted that the FMCA Rules require a person filing an application to file an affidavit stating the facts relied upon for the orders sought and do not provide for pleadings: see at [28]-[35]. These features of the Federal Magistrates Court led his Honour to observe (at [37]) that: "The Federal Magistrates Court has abandoned pleadings in favour of affidavits. In doing so, it has recognised that the Court has been created to offer relatively inexpensive and expeditious justice. It is a court which should proceed without undue formality and should ensure that the proceedings are not protracted: s 42. It has abandoned the formal procedures of superior courts. That course is consistent with the Act and the FMCA Rules." 37 After noting that affidavits perform quite a different function to pleadings (see at [38]), his Honour concluded that part of his reasons for judgment with the following observations that are apposite in this case (at [41]): "Often a cause of action will not be so easily recognised where an affidavit accompanies an application. The material facts which go to constitute the cause of action will not be identified. Instead, the evidence to prove those material facts will have to form the structural platform upon which the proceedings are conducted. Because the FMC Rules do not require the applicant to file all of his/her evidence with the application, in many cases, the applicant's cause of action may not be completely made out by the applicant's affidavit filed pursuant to r 4.05. It may be that the cause of action cannot be precisely identified until all the evidence is in." 38 Lander J then referred to the circumstances of the appeal before him, after which his Honour returned to the consequences that flowed from the lack of formality and pleadings in the Federal Magistrates Court as follows (at [73]): "The need for caution must be even more obvious in the Federal Magistrates Court when considering an application to summarily dismiss a claim for failing to disclose a reasonable cause of action. That is for the reasons already mentioned. There are no pleadings. There is, therefore, no concise document from which one can easily discern the existence or otherwise of a cause of action. The applicant is not obliged to file all affidavit evidence with the application, but only an affidavit which need not be the applicant's. It could not have been intended that an application under r 13.10 would give rise to an obligation upon the applicant to produce all of the applicant's evidence in order to determine whether the applicant could disclose a reasonable cause of action. If that were the obligation, the hearing of the application would almost become the trial." 39 And further (at [75]): "In my view, because the FMC Rules do not require pleadings; the parties are not obliged to tender all their evidence when the application and response is filed; there are few, if any, interlocutory processes available; and the Federal Magistrates Court is a low cost court, the Federal Magistrates Court should be very cautious about summarily dismissing an applicant's proceeding. That course should only be adopted when it is clear, beyond any doubt, that the applicant has not, and cannot, articulate in writing a reasonable cause of action. As I have already said, the philosophy of the Federal Magistrates Court is to provide inexpensive justice and a streamlined dispute resolution process. Litigants will often be self-represented and the documents they rely on as founding their claim will no doubt often be imprecisely articulated. In those circumstances, there is even more reason for the Federal Magistrates Court to be cautious before summarily dismissing an applicant's claim." [34] Although made in connection with an abuse of process claim the above observations of the Federal Court in Huang are apposite to the circumstances, and the law applicable, in these proceedings. And, although the FMC Rules have subsequently been amended to provide that a party may commence and continue proceedings by way of pleadings, [35] these are not proceedings commenced or continued on pleadings. In proceedings in this Court in which there are no pleadings, the function of affidavits has been to give factual context to the application, and the allegations made, so as to enable the other party or parties to understand what is put against them. [36] Claims The claims that Mr Wintle might have arising from his application, and more particularly the 8 March 2012 Affidavits and the 30 April 2012 Affidavit, and which have been raised in the hearing of RUC’s application in a case for summary dismissal, are set out below. Alleged undue influence or undue pressure RUC argued that Mr Wintle could not succeed on the claim under s.344(e) of the FW Act . Section 344 of the FW Act reads as follows: An employer must not exert undue influence or undue pressure on an employee in relation to a decision by the employee to: ... (e) agree, or not agree, to a deduction from amounts payable to the employee in relation to the performance of work. In the FW Act neither “undue influence” nor “undue pressure” is defined. In a different but related context, the phrase “undue pressure”, similarly undefined in the Building and Construction Industry Improvement Act 2005 (Cth), [37] was said to bear its ordinary meaning in the context of the purpose of the legislation. [38] The Federal Court observed: According to the Macquarie Dictionary, the word “undue” means “unwarranted; excessive, too great” or “not proper, fitting or right; unjustified”. The Macquarie Dictionary also defines the word “pressure” in its relevant sense as “harassment; oppression”. [39] The Macquarie Dictionary defines “influence”, at its most benign to simply mean “to move or impel to, or to do, something” [40] It could be argued that the definition covers a situation, for example, of a person unjustifiably moved to sign a letter. The Court notes that in the Fair Work Bill 2008 (Cth), Explanatory Memorandum [41] it was noted that: Under (sic) influence or pressure is a lower threshold than coercion. This is deliberate as it recognises that there should be higher obligations on an employer when they are entering into arrangements with employees that effectively modify or alter their conditions under the safety net. [42] In John Holland Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union & Ors [43] the Federal Court observed that: ... the expression ‘undue pressure’ could not ... be limited to circumstances of the kind comprehended by the equitable doctrine of undue influence ... the expression was intended to have a connotation that was relevant in the conduct of industrial relations in the building and construction industry over a much broader front than would be implied by the equitable doctrine. [44] The Court went on in John Holland to deal in more detail with the meaning of “undue pressure”, again in the context of the BCII Act , as follows: 58. Looking then at the normal meaning of the words used in the expression, there is no particular difficulty with the word "pressure". It is the word "undue" which is problematic. The dictionaries tell us that "undue" may carry a quantitative connotation - in the sense of going beyond what is warranted, or excessive - or a qualitative connotation - in the sense of being discordant with some rule or norm, unjust or, in a softer sense, inappropriate or unsuitable. ... I think it likely that the legislature intended that a qualitative standard of some kind was connoted by the expression. 59 What is clear, as a matter of construction, is that the application of undue pressure was regarded by the legislature as something different from coercion. ... 60 A very cursory survey of the recent use of the expression "undue pressure" in the industrial relations context reveals that it has been used to describe the kind of situation that might be regarded as a constructive dismissal (see Allison v Bega Valley Council (1995) 63 IR 68 , 73) and the situation which may arise when an employee does not make a free decision to agree to a change of shift, for example (see Victorian Hospitals Industrial Association v Australian Nursing Federation [2002] AIRC 1124 [14]). Cases of this kind throw little light on the meaning of the expression used in s 44 of the BCII Act. They do, however, demonstrate that, in context, the expression "undue pressure" has at least the potential to cover forms of pressure which are somewhat more benign than those considered necessary to make good an allegation of coercion in the statutory sense. [45] Thus, taking undue pressure as the example, it may be that it covers improper, inappropriate, unsuitable or unjustified harassment. Whether or not what was said to Mr Wintle in relation to the signing of the Termination Letter amounted to undue pressure is a question which might take its colour or content from the precise circumstances as they ultimately emerge in the evidence. However, at this stage of proceedings, there is, albeit barely, sufficient in what is alleged by Mr Wintle to have been said or done at the time of termination to make an arguable case that there was undue pressure applied to Mr Wintle to sign the Termination Letter. Although it may not appear to be a strong case, the question of whether there was actual undue pressure to agree to sign the Termination Letter is a matter best left to a hearing. Likewise, with respect to whether or not there was undue influence arising from the same conduct. The fact that the Termination Letter does not specifically seek the agreement of Mr Wintle to its contents, or to payment on the basis of summary dismissal rather than working out a period of notice or payment in lieu of a period of notice, does not mean that it might not have been understood, in the context of the discussions which occurred at the time, to be indicative of an agreement that summary dismissal was justified, or that, for example, non-payment of monies in lieu of a period of notice was justified. The more difficult question is whether or not the conduct which allegedly applied undue pressure or undue influence to Mr Wintle to agree to sign the Termination Letter was an agreement “to a deduction from amounts payable to the employee in relation to the performance of work.” A “deduction” may be simply defined as “[t]hat which is deducted”, [46] and to “deduct” is “to take away, as from a sum or amount.” [47] Non-payment of monies otherwise payable for the period of performance of work during a notice period, or monies payable as payment in lieu of notice, which are not paid as a consequence of a summary dismissal, might arguably be said to be a deduction where the summary dismissal was not justified, and an employee ought to have been allowed to work out a notice period or be paid in lieu of notice. In those circumstances those monies would be “amounts payable”. In this case, it is not apparent as to whether, in the absence of a right to summarily dismiss, RUC had a right to opt to pay Mr Wintle in lieu of notice. The Enterprise Agreement, as presently before the Court, is ambiguous in that regard. [48] The evidence presently before the Court posits that as one of two alternatives, namely, for a notice to be given or for payment to be made in lieu of notice. Taken at its highest the evidence allows for there to be a period of notice to be worked out by Mr Wintle. There is no specific evidence of an express requirement for payment in lieu of notice to be made to Mr Wintle. Thus, it is arguable that Mr Wintle was, in the absence of a justified summary dismissal, entitled to work out a period of notice, and therefore entitled to be paid during that period of notice. That payment would have been “in relation to the performance of work” for the purposes of s.344(e) of the FW Act . Even if there is specific provision entitling RUC to terminate with payment in lieu of notice, that may still be a payment “in relation to the performance of work” when regard is had to the possible width of the phrase “in relation to”. [49] In the circumstances, it appears to the Court that there may be an arguable basis for alleging a contravention of s.344(e) of the FW Act by RUC in relation to Mr Wintle. It does not necessarily appear to be a strong case, but it is nevertheless a case in relation to which the facts as they emerge in the evidence will give colour and content to the allegation, and in respect of which there appear to be arguable issues of law concerning the proper construction of s.344(e) of the FW Act . It cannot, therefore, be said that the claim under s.344(e) of the FW Act has no reasonable prospect of success. Alleged false or misleading representation Section 345 of the FW Act provides as follows: (1) A person must not knowingly or recklessly make a false or misleading representation about: (a) the workplace rights of another person; or (b) the exercise, or the effect of the exercise, of a workplace right by another person. (2) Subsection (1) does not apply if the person to whom the representation is made would not be expected to rely on it. Mr Wintle’s argument is a little difficult to follow, but it appears to be suggested that there may have been a knowing misrepresentation by Mr Hazel in relation to the complaint from the supplier which gave rise to the summary dismissal of Mr Wintle, arising, at least in part, from the failure to conduct a “thorough investigation”. If that misrepresentation was the basis for, or part of the basis for, the summary dismissal, it was, on the evidence “imperative” that the dismissal be the subject of a “thorough investigation”. That “thorough investigation” is arguably, “a process ... under a workplace instrument”, [50] being “any other process ... under a ... workplace instrument” [51] and therefore a “workplace right” as defined. [52] The “workplace instrument” concerned is the Enterprise Agreement, which, taking the evidence at its highest, exists. The right to a “thorough investigation” being express under the Enterprise Agreement, the summary dismissal itself may be a representation that a “thorough investigation” was conducted by RUC and, therefore, a misrepresentation if there was not a “thorough investigation”. There is a factual dispute in this case as to whether there was or was not a “thorough investigation”. It is therefore arguable that there has been a contravention of s.345 of the FW Act as alleged by Mr Wintle. It cannot therefore be said that the claim under s.345 of the FW Act has no reasonable prospect of success. Adverse action because of discrimination Section 351(1) of the FW Act provides as follows: (1) An employer must not take adverse action against a person who is an employee, or prospective employee, of the employer because of the person's race, colour, sex, sexual preference, age, physical or mental disability, marital status, family or carer's responsibilities, pregnancy, religion, political opinion, national extraction or social origin. Once again, Mr Wintle’s argument is a little difficult to follow, but it appears to be suggested that he: is an Australian; qualified as a tradesperson in Western Australia; and has higher technical standards than those of foreign employees of RUC, all of which caused problems in the workplace, and that as a consequence of those problems, his employment was terminated. There is not a lot of content to Mr Wintle’s s.351(1) claim, and the factual material in support of it is sparse, but such material as there is lends itself to an argument along the above lines. The assertion of adverse action because of race is disputed by RUC, but that forms the basis for a factual dispute, which in the Court’s view ought to be determined at hearing. Furthermore, Counsel for RUC did not deal specifically, or even generally, with the s.351(1) claim at hearing. In the circumstances, the Court considers that it has not been established that the s.351(1) claim under the FW Act has no reasonable prospects of success, and the matter ought to go to hearing to be determined. Failure to observe notice period or pay in lieu of notice On the material presently before the Court it appears that Mr Wintle may be able to allege that there is: non-compliance by RUC with the Enterprise Agreement insofar as the procedure with respect to his summary dismissal was concerned, and in particular, that there was no “thorough investigation” into the complaint alleged to have been made to RUC by a supplier which led to his summary dismissal; [53] because of the failure to conduct a thorough investigation, that it is arguable that there may not have been compliance with the termination payment provisions of the Enterprise Agreement, because Mr Wintle should not, or could not have been, summarily dismissed, and he should have been dismissed on notice, giving rise to an entitlement to work out the notice period, or be paid in lieu thereof; [54] based on sub-paragraphs (a) and (b) above, there may be a contravention of a term of an Enterprise Agreement contrary to s.50 of the FW Act , by reason of a possible failure to give notice, or pay in lieu of notice, on dismissal; the Court notes that, despite having requested a copy of the Enterprise Agreement to be provided to it at the hearing on 1 May 2012, neither party has yet provided a copy. The Court is therefore left with evidence from Mr Wintle of what is alleged to be a relevant extract from the Enterprise Agreement with respect to the manner and mode of dismissal, but not the relevant provisions with respect to notice on termination, including the quantum of notice, or the manner and timing of the payment of such notice, or whether payment in lieu of notice can be made; if summary dismissal of Mr Wintle was not warranted in any event, there may also be a simple breach of contract by reason of a failure to provide notice, or make payment in lieu of notice, for an express period of notice, or if there is not an express period of notice, then a reasonable period of notice; and a breach of the National Employment Standards with respect to the minimum period of notice, or payment in lieu thereof, which was required to be given to a person in their first year of employment, namely one week’s notice; [55] Save for a claim for what was described as “wage income” for a period of approximately seven weeks following termination, from 31 May 2011 to 18 July 2011, at what was described as the “agreement rate”, [56] none of the above circumstances or actions are adverted to by Mr Wintle in the materials filed by him. They are, however, matters which arise on the materials filed. They were matters to which, by and large, this Court adverted in the hearing on 1 May 2012 and again on 30 May 2012. The fact that the claims set out above were arguable was not seriously disputed by RUC’s Counsel on either occasion. It was suggested by Counsel for RUC at both the 1 and 30 May 2012 that Mr Wintle was, at the time of his termination, still within a probationary period. Whilst the existence of a probationary period did not appear to be disputed by Mr Wintle, there was no agreement between Mr Wintle and RUC, and no evidence before the Court, concerning the length of time or terms of any probationary period. The Court was also not addressed in any serious way as to the effect of any probationary period on the issues in dispute. Such matters are therefore best left to hearing. The potential breach of contract, which would be in the Court’s associated jurisdiction, [57] would remain a claim which could be determined by this Court even if any or all of the claims under the FW Act were found not to be arguable, and were dismissed because they did not have reasonable prospects of success, or were otherwise dismissed. [58] The Court is, therefore, of the view that there arises on the face of the materials filed in this matter an arguable case with respect to an alleged failure to provide a notice period, or make a payment in lieu of notice, to Mr Wintle by RUC. Failure to comply with orders An applicant is in default if an applicant fails to comply with an order of the Court in a proceeding, [59] and if an applicant is in default, the Court may order that: (a) the proceeding be stayed or dismissed as to the whole or any part of the relief claimed by the applicant; or (b) a step in the proceeding be taken within the time limited in the order; or (c) if the applicant does not take a step in the time mentioned in paragraph (b) -- the proceeding be stayed or dismissed, as to the whole or any part of the relief claimed by the applicant. [60] In these proceedings, it is argued by RUC that Mr Wintle is in default by reason of his failure to formally comply with the Court’s orders of 14 March 2012. Mr Wintle did not file an amended application or a further Amended Claim Form as required by the Court’s orders of 14 March 2012. He had however, by the time those orders were made, filed the two 8 March 2012 Affidavits, and subsequently filed the 30 April 2012 Affidavit. The failure to file an outline of submissions in accordance with the Court’s orders of 14 March 2012 is formally a failure to comply with the Court’s orders. Ordinarily, it “remains a fundamental requirement of procedural fairness that any respondent should be provided with a claim which clearly and concisely sets out allegations against the respondent with sufficient particularity to permit a defence”. [61] In this case, however, there are exceptional circumstances. They are: Mr Wintle’s level of written English expression, which is, as the Court has observed above, not of a high standard, and which has resulted in the Court concluding that, notwithstanding the orders of 14 March 2012, it would be futile to insist upon a further Amended Claim Form and amended application being filed as they would add nothing to the existing state of these proceedings; RUC have already filed a detailed Amended Response, and it is evident from: the Amended Response; and the nature of the submissions made by RUC’s Counsel on 1 and 30 May 2012, that Mr Wintle’s case is understood, not just generally, but quite particularly by RUC; and that the 8 March 2012 Affidavits and 30 April 2012 Affidavits have added just enough factual material to the Court record to enable Mr Wintle’s case to be properly understood by RUC and the Court. For the above reasons, and bearing in mind the exceptional nature of those circumstances, the Court is not satisfied that it ought to dismiss Mr Wintle’s application for failure to comply with an order of the Court in the proceedings. Conclusions and orders The Court has concluded that Mr Wintle has an arguable case, or a case that ought not to be dismissed on the basis of there being no reasonable prospect of success, in relation to: an alleged contravention of s.344(e) of the FW Act ; an alleged contravention of s.345(1) of the FW Act ; an alleged contravention of s.351(1) of the FW Act ; and actions with respect to a possible failure to observe the notice period, or make a payment in lieu thereof, under the: Enterprise Agreement; or the Contract of Employment, whether express or implied. The Court has also concluded that Mr Wintle’s application ought not to be dismissed for failure to comply with Court orders. The Court’s conclusions mean that RUC’s application in a case filed 16 February 2012 must be dismissed. There will be an order accordingly. The Court will adjourn the matter to a further directions hearing on 29 June 2012 at 4.00pm. That directions hearing will be a final directions hearing to deal generally with any outstanding matters, but particularly the following: the evidence to be led at hearing; any further mediation; and any matters arising from the return of subpoenas which have been issued by a Registrar of this Court subsequent to the final hearing of the application in a case on 30 May 2012. I certify that the preceding 69 Error! Style not defined.!Syntax Error, ! Error! Style not defined. Error! Style not defined.!Syntax Error, ! sixty-ninesixty-nine (69) paragraphs are a true copy of the reasons for judgment of Lucev FM Date: 8 June 2012 [1] “RUC”. [2] “ FW Act ”. [3] Wintle v RUC Cementation Mining Contractors Pty Ltd [2012] FMCA 140 (“ RUC Cementation ”). [4] RUC Cementation at para.10 per Lucev FM. [5] RUC Cementation at para.12 per Lucev FM. [6] “Amended Claim Form”. [7] RUC Cementation at paras.18-21 per Lucev FM (footnotes omitted). [8] RUC Cementation at paras.27-28 per Lucev FM (footnotes omitted). [9] RUC Cementation at paras.22-25 per Lucev FM. [10] RUC Cementation at para.25 per Lucev FM; FW Act , ss.369 and 371(1)(a) and (2). [11] “30 April 2012 Affidavit”. [12] “First 8 March 2012 Affidavit” (Document 18 on the Court file) and “Second 8 March 2012 Affidavit” (Document 19 on the Court file) respectively. [13] RUC Cementation at para.29 per Lucev FM. [14] Oorloff & Anor v Lee & Anor [2004] FMCA 893 at para.49 per Walters FM (“ Oorloff ”); cited in Barnes v Northern Territory Legal Aid Commission [2012] FMCA 274 at para.59 per Lucev FM and Portuguese Cultural & Welfare Centre Inc v AMCA [2011] FMCA 144 ; (2011) EOC 93-600 at 74,956 per Lucev FM; [2011] FMCA 144 at para.8 per Lucev FM. [15] Evidence Act 1995 (Cth), s.56(2) (evidence not relevant is not admissible) and s.131(1) (evidence of settlement negotiations not to be adduced). [16] Typed from the original attachment to the Initial Claim Form without amendment. [17] First 8 March 2012 Affidavit, Annexure B (“Enterprise Agreement”). [18] “Termination Letter”. [19] First 8 March 2012 Affidavit, Annexure A, typed from the original without amendment. [20] See para.14 above. [21] Second 8 March 2012 Affidavit, Annexure A, typed from the original without amendment [22] Second 8 March 2012 Affidavit, Annexure A. [23] 30 April 2012 Affidavit, Annexure B, typed from the original without amendment (“Workshop Events Statement”). [24] 30 April 2012 Affidavit, Annexure A, typed from the original without amendment (“Office Dismissal Statement). [25] FM Act , s.18. [26] Office Dismissal Statement. [27] Office Dismissal Statement. [28] “ FMC Rules ”. [29] [1949] HCA 1 ; (1949) 78 CLR 62 at 91-92 per Dixon J. [30] [1964] HCA 69 ; (1964) 112 CLR 125 at 129-130 per Barwick CJ. [31] George v Fletcher (Trustee) [2010] FCAFC 53 at para.75 per Ryan and Logan JJ; and paras.99-105 per Marshall J, and in particular para.102; Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd [2008] FCAFC 60 ; (2008) 167 FCR 372 at 387-388 per Rares J; [2008] FCAFC 60 at para.45 per Rares J; Dandaven v Harbeth Holdings Pty Ltd [2008] FCA 955 at para.6 per Gilmour J (“ Dandaven ”). [32] Oorloff at para.49 per Walters FM. [33] [2012] FCA 308 (“ Huang ”). [34] Huang at paras.36-39 per Reeves J. [35] FMC Rules , r.4.05(2) and (3). [36] Rana v University of South Australia [2004] FCA 559 ; (2004) 136 FCR 344 at 348-350 and 354-355 per Lander J; [2004] FCA 559 at paras.25, 28-35, 38, 41, 73 and 75 per Lander J; Kurniadi and Ors v Loh and Ors [2003] FMCA 24 at para.39 per McInnis FM. [37] “ BCII Act ”. [38] Stuart v Construction, Forestry, Mining and Energy Union [2009] FCA 1119 ; (2009) 190 IR 82 at 87-88 per Gray J; [2009] FCA 1119 at para.18 per Gray J (“ Stuart ”). The judgment in Stuart was appealed, but only as to penalty: Stuart v Construction, Forestry, Mining and Energy Union (2010) 185 FCR 308 ; [2010] FCAFC 65. [39] Stuart para.18 per Gray J. [40] The Macquarie Dictionary (2 nd Edn) (Macquarie University: The Macquarie Library Pty Ltd, 1991) page 903 (“Macquarie Dictionary”). [41] “Explanatory Memorandum”. [42] Explanatory Memorandum, para.1396. [43] (2009) 174 FCR 526 ; [2009] FCA 235 (“ John Holland ”). [44] John Holland FCR at 543 per Jessup J; FCA at para.57 per Jessup J. [45] John Holland FCR at 543; FCA at paras.58-60 per Jessup J. [46] Macquarie Dictionary, page 464. [47] Macquarie Dictionary, page 464. [48] Enterprise Agreement, part 4.2 (final paragraph) and part 4.2.1 (second paragraph), as set out at para.14(b) above. [49] See, for example, O’Grady v The Northern Queensland Company Ltd [1990] HCA 16 ; (1990) 169 CLR 356 at 367 per Dawson J; Australian Communications Network Pty Ltd & Anor v Australian Competition & Consumer Commission [2005] FCAFC 221 ; (2005) 224 ALR 344 at 350-351 per Heerey, Merkel and Siopis JJ; [2005] FCAFC 221 at paras.26 and 29 per Heerey, Merkel and Siopis JJ; Construction, Forestry, Mining and Energy Union v Mammoet Australia Pty Ltd [2011] FMCA 802 ; (2011) 254 FLR 59 at 83-84 per Lucev FM; [2011] FMCA 802 at paras.107-113 per Lucev FM. [50] FW Act , s.341(1)(b). [51] FW Act , s.341(1)(b). [52] FW Act , s.341(2)(k). [53] First 8 March 2012 Affidavit. [54] Refer to 8 March 2012 Affidavit. [55] FW Act , s.117(1), (2) and (3), noting that by reason of s.55(1) of the FW Act this is a National Employment Standard which cannot be excluded. [56] See para.14(a) above. [57] FM Act , s.18. [58] Matheson v Findex Australia Pty Ltd [2011] FMCA 135 ; (2011) 252 FLR 197 at 205 per Lucev FM; [2011] FMCA 135 at para.21 per Lucev FM, citing Re Wakim; Ex parte McNally & Anor [1999] HCA 27 ; (1999) 198 CLR 511 at 585-586 per Gummow and Hayne JJ; [1999] HCA 27 at paras.138 and 140 per Gummow and Hayne JJ. [59] FMC Rules , r.13.03A(1)(a). [60] FMC Rules , r.13.03B(1). [61] Reading v Partnership of Western Diagnostic Pathology [2008] FCA 1381 at para.42 per McKerracher J.