Crossing v Anglicare NSW South, NSW West & ACT

• Jurisdiction: Australia Federal only
• Judgment Date: 14 September 2021
• Neutral Citation: [2021] FCA 1112
• Court: Federal Court
• Date: 14 September 2021

Federal Court of Australia

Crossing v Anglicare NSW South, NSW West & ACT [2021] FCA 1112

File number:	NSD 452 of 2019
Judgment of:	ABRAHAM J
Date of judgment:	14 September 2021
Catchwords:	INDUSTRIAL LAW – adverse action – where applicant failed to establish any alleged adverse actions – where even if established, the adverse actions were not taken for any unlawful reason – where applicant employed as a Financial Counsellor on basis that he would be “imminently qualified” for the position – where applicant failed to hold required qualifications for the position – application dismissed ; INDUSTRIAL LAW – whether applicant exercised workplace rights under s 341(1) of the Fair Work Act 2009 (Cth) (FW Act) – whether adverse action taken against applicant because he made a complaint in relation to his employment – whether applicant made a “complaint” within meaning of s 341(1)(c) of the FW Act – Shea v TRUenergy Services Pty Ltd (No 6) [2014] FCA 271; (2014) 314 ALR 346 considered – no complaint found – whether adverse action taken against applicant because he held certain rights to consultation under the applicable enterprise agreement – whether applicant entitled to rely on those rights – applicant not entitled to rely on those rights – whether adverse action taken against applicant contrary to s 346 of the FW Act because he had a right not to be, or not be, a member of an industrial association –whether the Financial Counsellor’s Association of New South Wales (FCAN) is an “industrial association” within meaning of s 12 of the FW Act – FCAN not an industrial association – whether adverse action taken against applicant because he has a mental disability, contrary to s 351 of FW Act – no adverse action established – application dismissed
Legislation:	Corporations Act 2001 (Cth) s 911A(1) Disability Discrimination Act 1992 (Cth) Fair Work Act 2009 (Cth) ss 6(2), 12, 12(a), 12(b), 12(c), 50, 340, 340(1), 341(1), 341(1)(a), 341(1)(b), 341(1)(c), 341(1)(c)(ii), 342, 342(1), 342(1)1(b), 342(1)1(c), 342(1)1(d), 342(2), 346, 346(1)(a), 347, 347(a), 351, 351(3), 360, 361 Independent Contractors Act 2006 (Cth) Registered Organisations Act 2009 (Cth) Australian Securities and Investment Commission Corporations Act 2001 – Paragraph 991A(2)(l) – Exemption (ASIC Class Order [03/1063]) ASIC Corporations (Financial Counselling Agencies) Instrument 2017/792 s 5(2)
Cases cited:	Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (The Bay Street Case) [2018] FCA 83; (2018) 260 FCR 564 Barclay v The Board of Bendigo Regional Institute of Technical and Further Education [2010] FCA 284; (2010) 193 IR 25 Barclay v The Board of Bendigo Regional Institute of Technical and Further Education [2011] FCAFC 14; (2011) 191 FCR 212 Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32; (2012) 248 CLR 500 Construction Forestry Mining and Energy Union v De Martin & Gasparini Pty Ltd (No 2) [2017] FCA 1046 Construction, Forestry, Mining and Energy Union v Anglo Coal (Dawson Services) Pty Ltd (No 2) [2015] FCA 265 Construction, Forestry, Mining and Energy Union v Anglo Coal (Dawson Services) Pty Ltd [2015] FCAFC 157; (2015) 238 FCR 273 Construction, Forestry, Mining & Energy Union v Pilbara Iron Company (Services) Pty Ltd (No 3) [2012] FCA 697; (2014) AILR 101-659 Construction, Forestry, Mining and Energy Union v Rio Tinto Coal Australia Pty Ltd [2014] FCA 462; (2014) 232 FCR 560 Cummins South Pacific Pty Ltd v Keenan [2020] FCAFC 204; (2020) 302 IR 400 Hill v Compass Ten Pty Ltd [2012] FCA 761; (2012) 205 FCR 94 Jones v Queensland Tertiary Admissions Centre Ltd (No 2) [2010] FCA 399; (2010) 186 FCR 22 Maxutova v Nunn Media Pty Ltd [2017] FCCA 2336 Morton v Commonwealth Scientific and Industrial Research Organisation (No 2) [2019] FCA 1754 National Tertiary Education Union v University of Sydney [2020] FCA 1709; (2020) 302 IR 272 Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (No 3) [1998] HCA 30; (1998) 195 CLR 1 PIA Mortgage Services Ltd v King [2020] FCAFC 15; (2020) 274 FCR 225 RailPro Services Pty Ltd v Flavel [2015] FCA 504; (2015) 242 FCR 424 Sayed v Construction, Forestry, Mining and Energy Union [2015] FCA 27; (2017) 327 ALR 460 Salama v Sydney Trains [2021] FCA 251 Shea v EnergyAustralia Services Pty Ltd [2014] FCAFC 167; (2014) 242 IR 159 Shea v TRUenergy Services Pty Ltd (No 6) [2014] FCA 271; (2014) 314 ALR 346 Western Union Business Solutions (Australia) Pty Ltd v Robinson [2019] FCAFC 181; (2019) 272 FCR 547 Whelan v Cigarette & Gift Warehouse Pty Ltd [2017] FCA 153; (2017) 275 IR 285 Wong v National Australia Bank [2021] FCA 671
Division:	General Division
Registry:	New South Wales
National Practice Area:	Employment and Industrial Relations
Number of paragraphs:	366
Date of last submission/s:	11 March 2021
Date(s) of hearing:	28—30 September 2020, 1 October 2020, 23—24 November 2020, 30 November 2020 and 2 December 2020
Counsel for the Applicant:	The applicant appeared in person.
Solicitor for the Respondents:	Mr P. M. Zielinski of Minter Ellison

ORDERS

		NSD 452 of 2019
BETWEEN:	RICHARD DONALD CROSSING Applicant
AND:	ANGLICARE NSW SOUTH, NSW WEST & ACT First Respondent ; BRAD ADDISON Second Respondent

order made by:	ABRAHAM J
DATE OF ORDER:	14 September 2021

THE COURT ORDERS THAT:

1. The application is dismissed.

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

REASONS FOR JUDGMENT

ABRAHAM J:

1. Mr Crossing (the applicant) was employed by Anglicare (the first respondent) as a Financial Counsellor from 7 January 2013 until 15 May 2013. At that time his employment was terminated on the basis of his “unsuitability for continuing employment” as he did not hold the qualifications necessary to be a Financial Counsellor with Anglicare.

2. The applicant’s claim is that Anglicare and Mr Brad Addison (the second respondent), then a General Manager at Anglicare, contravened Pt 3-1 of the Fair Work Act 2009 (Cth) (FW Act), in that they took adverse action against him in breach of his workplace rights. The applicant does not contend or make any allegation that his termination was a form of adverse action taken in breach of the FW Act. Rather, in summary, the allegation is first, that the respondents took adverse action against the applicant in breach of s 340 of the FW Act for having or exercising workplace rights (including the right not to take up membership with the Financial Counselling Association of New South Wales (FCAN) and the right to make a complaint or enquiry about his employment); second, the respondents took adverse action against the applicant due to his mental disability in breach of s 351 of the FW Act and the Disability...