Australian Red Cross Society v Queensland Nurses' Union of Employees

• Jurisdiction: Australia Federal only
• Judgment Date: 03 December 2019
• Neutral Citation: [2019] FCAFC 215
• Date: 03 December 2019
• Court: Full Federal Court (Australia)

FEDERAL COURT OF AUSTRALIA

Australian Red Cross Society v Queensland Nurses’ Union of Employees

[2019] FCAFC 215

Appeal from:	Queensland Nurses’ Union of Employees v Australian Red Cross Society & Ors [2018] FCCA 3471 Queensland Nurses Union of Employees v Australian Red Cross Society & Ors [2019] FCCA 706
File number:	QUD 934 of 2018
Judges:	GREENWOOD, BESANKO AND RANGIAH JJ
Date of judgment:	3 December 2019
Catchwords:	INDUSTRIAL LAW — appeal from orders made by a judge of the Federal Circuit Court of Australia — where an employee of the first appellant engaged in protected industrial action — where the primary judge found that the first appellant took adverse action in contravention of s 340(1)(a) of the Fair Work Act 2009 (Cth) and that the second and third appellants were involved in those contraventions — where primary judge made orders with respect to compensation and pecuniary penalties ; INDUSTRIAL LAW — where primary judge found that each appellant had knowledge that the employee had engaged in protected industrial action — whether knowledge is a pre-condition to the engagement of the presumption in s 361 of the Act — consideration of the elements to be established in order to engage s 361 of the Act — whether the primary judge considered all of the evidence relevant to knowledge — whether this Court can assess and weigh the relevant evidence — whether it is appropriate in the circumstances to order a retrial
Legislation:	Conciliation and Arbitration Act 1904 (Cth) s 5 Fair Work Act 2009 (Cth) ss 340, 360, 361, 550, 793
Cases cited:	Australian Building and Construction Commissioner v Hall [2018] FCAFC 83; (2018) 261 FCR 347 Australian Building and Construction Commissioner v Hall [2017] FCA 274; (2017) 269 IR 28 Board of Bendigo Regional Institute of Technical and Further Education v Barclay (No 1) [2012] HCA 32; (2012) 248 CLR 500 Celand v Skycity Adelaide Pty Ltd [2017] FCAFC 222; (2017) 256 FCR 306 Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2017] FCAFC 50 Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2015] FCAFC 25; (2015) 230 FCR 298 Construction, Forestry, Mining and Energy Union v Clermont Coal Pty Ltd [2015] FCA 1014; (2015) 253 IR 166 Elliott v Kodak Australasia Pty Ltd [2001] FCA 1804; (2001) 129 IR 251 Expectation Pty Ltd v PRD Realty Pty Ltd [2004] FCAFC 189; (2004) 140 FCR 17 General Motors-Holden’s Pty Ltd v Bowling (1976) 51 ALJR 235 Port Kembla Coal Terminal Ltd v Construction, Forestry, Mining and Energy Union [2016] FCAFC 99; (2016) 248 FCR 18 Tattsbet Ltd v Morrow [2015] FCAFC 62; (2015) 233 FCR 46
Date of hearing:	16 May 2019
Registry:	Queensland
Division:	General Division
National Practice Area:	Employment & Industrial Relations
Category:	Catchwords
Number of paragraphs:	99
Counsel for the Appellants:	Mr Y Shariff with Ms V Bulut
Solicitor for the Appellants:	Lander & Rogers
Counsel for the Respondent:	Mr R Reed
Solicitor for the Respondent:	Mr K Crank, Queensland Nurses’ Union of Employees

ORDERS

		QUD 934 of 2018
BETWEEN:	AUSTRALIAN RED CROSS SOCIETY First Appellant ; RHIANNON FEALY Second Appellant ; LISA MCILROY Third Appellant
AND:	QUEENSLAND NURSES’ UNION OF EMPLOYEES Respondent

JUDGES:	GREENWOOD, BESANKO AND RANGIAH JJ
DATE OF ORDER:	3 December 2019

THE COURT ORDERS THAT:

1. The appellants file and serve within seven days draft minutes of order reflecting the conclusions in these reasons and if they seek limits on the remitter to another judge, written submissions limited to four pages in support of such limitations.

2. The respondent file and serve within 14 days such written submissions limited to four pages as it may wish to make directed to the appellants’ draft minutes of order and limits on the terms of the remitter.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT:

Introduction

1. This is an appeal by the Australian Red Cross Society (Red Cross), Ms Rhiannon Fealy and Ms Lisa McIlroy against orders made by a judge of the Federal Circuit Court on 17 December 2018 and on 29 January 2019. We will refer to these parties as the Red Cross parties when referring to them as a group. The respondent to the appeal is the Queensland Nurses’ Union of Employees (the Union).

2. The Union brought proceedings under the Fair Work Act 2009 (Cth) (the FW Act) against the Red Cross parties alleging contraventions of s 340(1)(a) of the FW Act and claiming compensation and pecuniary penalties as a result of those contraventions. The person who was the subject of the adverse action was alleged to be Ms Sandi Emblem and she was an employee of Red Cross. Red Cross was alleged to be the primary contravener and Ms Fealy and Ms McIlroy were alleged to be persons involved in the contraventions within s 550 of the FW Act. The Union’s claims proceeded to trial in the Federal Circuit Court on 21, 22 and 23 April 2015. The reasons for judgment of the primary judge were not delivered until 28 November 2018 which was more than three-and-a-half years after the trial.

3. The primary judge indicated in his reasons for judgment that the contraventions alleged were made out and he indicated that he would hear the parties on the form of the orders to be made and on the questions of interest, penalty, costs or other relief arising from his reasons (Queensland Nurses’ Union of Employees v Australian Red Cross Society & Ors [2018] FCCA 3471).

4. On 17 December 2018, the primary judge made the following declarations:

1. The first respondent contravened s.340(1)(a) of the Fair Work Act 2009 (Cth) by issuing Sandi Emblem with a written first and final disciplinary warning on 11 April, 2014.

2. The first respondent contravened s.340(1)(a) of the Fair Work Act 2009 (Cth) by issuing Sandi Emblem with a letter on 28 May, 2014 to attend a meeting.

3. The first respondent contravened s.340(1)(a) of the Fair Work Act 2009 (Cth) by suspending Sandi Emblem from her employment on 30 May, 2014.

4. The first respondent contravened s.340(1)(a) of the Fair Work Act 2009 (Cth) by dismissing Sandi Emblem from her employment with the first respondent on 2 June, 2014.

5. The second respondent was involved in each of the contraventions of the Fair Work Act 2009 (Cth) declared in paragraphs 1 to 4, within the meaning of s.550 of the Fair Work Act 2009 (Cth), and is taken to have contravened s.340(1)(a) of the Fair Work Act 2009 (Cth) in each case.

6. The third respondent was involved in each of the contraventions of the Fair Work Act 2009 (Cth) declared in paragraphs 1 to 4, within the meaning of s.550 of the Fair Work Act 2009 (Cth), and is taken to have contravened s.340(1)(a) of the Fair Work Act 2009 (Cth) in each case.

5. In addition, the primary judge made orders designed to facilitate the hearing which was to take place with respect to penalty.

6. On 29 January 2019, the primary judge made orders as follows: (1) Pursuant to s 545(1) of the FW Act, Red Cross pay to Ms...