Salama v Sydney Trains

• Jurisdiction: Australia Federal only
• Judgment Date: 24 March 2021
• Neutral Citation: [2021] FCA 251
• Court: Federal Court
• Date: 24 March 2021

FEDERAL COURT OF AUSTRALIA

Salama v Sydney Trains [2021] FCA 251

File number:	NSD 1977 of 2017
Judgment of:	BURLEY J
Date of judgment:	24 March 2021
Catchwords:	INDUSTRIAL LAW – adverse action – whether employee exercised workplace rights under s 341(1) of the Fair Work Act 2009 (Cth) (“FW Act”) – where employee member and officer of industrial association under s 346 of the FW Act – whether adverse action taken because employee exercised workplace rights and/or was member and officer of industrial association – where decision-makers gave evidence regarding reasons adverse action was taken – whether employer discharged presumption imposed by s 361 of the FW Act – application dismissed ; INDUSTRIAL LAW – alleged contravention of enterprise agreement contrary to s 50 of the FW Act – interpretation of enterprise agreements – whether employer denied employee rights under enterprise agreement – application dismissed
Legislation:	Fair Work Act 2009 (Cth) ss 6, 12, 50 – 54, 340, 341, 342, 346, 347, 361, 789FC and 789FD Federal Court Rules 2011 (Cth) r 7.23
Cases cited:	Amcor Limited v Construction, Forestry, Mining and Energy Union [2005] HCA 10; 222 CLR 241 Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32; 248 CLR 500 City of Wanneroo v Australian Municipal, Administrative, Clerical And Services Union [2006] FCA 813; 153 IR 426 Construction Forestry Mining and Energy Union v BHP Coal Pty Ltd [2014] HCA 41; 253 CLR 243 Construction Forestry Mining and Energy union v De Martin & Gasparini Pty Ltd (No 2) [2017] FCA 1046 Construction, Forestry, Maritime, Mining and Energy Union v Hay Point Services Pty Ltd [2019] FCA 2145 Construction, Forestry, Mining & Energy Union v Pilbara Iron Company (Services) Pty Ltd (No 3) [2012] FCA 697 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; 238 FCR 273 Construction, Forestry, Mining and Energy Union v Clermont Coal Pty Limited [2015] FCA 1014; 253 IR 166 Cummins South Pacific Pty Ltd v Keenan [2020] FCAFC 204 Elliott v Kodak Australasia Pty Ltd [2001] FCA 1804; 129 IR 251 Energy Australia Yallourn Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2018] FCAFC 146; 264 FCR 342 George v Rockett [1990] HCA 26; 170 CLR 104 Kucks v CSR Limited [1996] IRCA 141 Mr Joseph Salama v Sydney Trains; Mr Laurence New; Ms Amba Francisco; Mr Charlie Keech; Ms Kirsty Sweeting [2018] FWC 1845 National Tertiary Education Industry Union v University of Sydney [2020] FCA 1709 National Tertiary Education Union v Royal Melbourne Institute of Technology [2013] FCA 451; 234 IR 139 Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (No 3) [1998] HCA 30; 195 CLR 1 Pfizer Ireland Pharmaceuticals v Samsung Bioepis AU Pty Ltd [2017] FCAFC 193; 257 FCR 62 PIA Mortgage Services Pty Ltd v King [2020] FCAFC 15 Red Cross v Queensland Nurses’ Union of Employees [2019] FCAFC 215; 273 FCR 332 Shea v EnergyAustralia Services Pty Ltd [2014] FCAFC 167; 242 IR 159 Shea v TRUenergy Services Pty Ltd (No 6) [2014] FCA 271; 242 IR 1 Tattsbet Ltd v Morrow [2015] FCAFC 62; 233 FCR 46 Wood (on behalf of the Industrial Relations Bureau) v Lord Mayor, Councillors and Citizens of the City of Melbourne (1979) 41 FLR 1
Division:	Fair Work Division
Registry:	New South Wales
National Practice Area:	Employment and Industrial Relations
Number of paragraphs:	387
Date of last submissions:	15 April 2020
Date of hearing:	2 – 6 March 2020
Counsel for the Applicant:	Mr R Moore
Solicitor for the Applicant:	Maxwell Berghouse & Ives Solicitors
Counsel for the Respondents:	Ms E Raper SC
Solicitor for the Respondents:	Bartier Perry Pty Limited

ORDERS

		NSD 1977 of 2017
BETWEEN:	JOSEPH SALAMA Applicant
AND:	SYDNEY TRAINS First Respondent ; CHRIS WALSH Second Respondent

order made by:	BURLEY J
DATE OF ORDER:	24 MARCH 2021

THE COURT ORDERS THAT:

1. The application be dismissed.

2. The parties have liberty to apply within 7 days in the event that any consequential or other orders are sought.

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

REASONS FOR JUDGMENT

1 INTRODUCTION	[1]
1.1 The issues and summary of conclusions	[7]
1.1.1 The adverse action claims	[7]
1.1.2 The Enterprise Agreement claims	[13]
1.1.3 Other issues	[15]
2 THE WITNESSES	[16]
2.1 The witnesses called by Mr Salama	[17]
2.2 The witnesses called by Sydney Trains	[40]
3 THE RELEVANT LAW	[76]
3.1 Legislative framework	[76]
3.2 Ascertaining whether adverse action was taken for a proscribed purpose	[86]
3.3 Ascertaining whether a person is exercising workplace rights	[98]
4 FINDINGS OF FACT AND CHRONOLOGY OF EVENTS	[106]
4.1 Mid-2016	[107]
4.2 Mr Salama’s attempts to procure a vote of no confidence in Mr Keech	[116]
4.3 The November meeting with Mr Robertson	[124]
4.4 The November 2016 mediation	[133]
4.5 January 2017	[134]
4.6 February 2017	[140]
4.7 April 2017	[148]
4.8 The uniform reimbursement dispute	[152]
4.9 The union rights dispute and the request issue	[165]
4.10 The stop bullying proceedings	[184]
4.11 Attempts to provide counselling to Mr Salama and the PCIP dispute	[191]
4.12 The field start issue	[217]
4.13 The “managers are fair game” email	[220]
4.14 The notification issue	[223]
4.15 Steps leading to the show cause letter	[226]
4.16 The show cause letter, its response and the letter of termination	[230]
5 THE WORKPLACE RIGHTS AND INDUSTRIAL ACTIVITY	[243]
5.1 Introduction	[243]
5.2 Workplace rights from role or responsibility as a union delegate (s 341(1)(a))	[252]
5.2.1 The Robertson 3 November 2016 meeting	[252]
5.3 Workplace rights to initiate or participate in a process or proceedings under a workplace law or workplace instrument (s 341(1)(b))	[264]
5.3.1 The DSP processes	[264]
5.3.1.1 The field start issue 25 June 2017	[274]
5.3.1.2 The request issue/union rights dispute	[276]
5.3.1.3 The PCIP dispute	[279]

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