“It is sometimes thought, in the traditional union movement at least, that to label someone a scab is the worst insult that can be given. At a minimum, it is a call to shame and ostracise that person. It signifies that they have been guilty of unforgiveable, and unredeemable, treachery which will blight their reputation forever.” So begins the recent judgment of Tracey and Buchanan JJ in Maritime Union of Australia v Fair Work Ombudsman  FCAFC 102.
A strike organised by the MUA had failed in its objective of shutting down the Port of Fremantle because several former members of the MUA continued to work. They were named as ‘scabs’ and ‘lowlifes’ in a poster that included Jack London’s ‘Ode to a Scab’ – a polemic that opens with ‘After God made the rattlesnake, the toad and the vampire, he had some awful substance left over, with which he made a SCAB’, and continues in the same vein.
The ‘Ode’ was written in 1915, and since then has acquired a rich legal history. In Letter Carriers v Austin 418 US 264 (1974), the United States Supreme Court accepted that it defined the meaning of ‘scab’, described it as ‘rhetorical hyperbole, a lusty and imaginative expression of the contempt felt by union members towards those who refuse to join’, and held that ‘such exaggerated rhetoric was commonplace in labor disputes and protected by federal law’. In CFMEU v BHP Coal Pty Ltd (No 3) (2012) 228 IR 195 the CFMEU tendered the ‘Ode’ to prove the place that ‘scab’ had acquired in trade union vernacular, and at  Jessup J relied on it to find that ‘the description of a worker as a scab, and as bereft of both principles and guts, because he or she chose the course of continuing to work during protected industrial action … was offensive, and that the language involved in such a description was offensive and abusive.’ On appeal, in BHP Coal Pty Ltd v CFMEU (2013) 219 FCR 245, Dowsett J described it at  as ‘common abuse’.
Apart from the intersection of literature and the law, Maritime Union of Australia v Fair Work Ombudsman is also interesting for its approach to s.346(c) of the Fair Work Act 2009. In the primary proceedings the publication of the poster was held to have prejudiced the workers named in it ‘in their employment’. The Full Federal Court upheld that finding.
At  and  Tracey and Buchanan JJ expressly rejected as too narrow the argument that the concept of ‘in the person’s employment’ should be confined to ‘the relationship with an employer and to objectively apparent longer term, or ongoing, diminution in incidents or benefits of employment.’ Critical to their Honour’s reasoning was the primary judge’s finding that the publication of the poster had been intended to ‘cause fear, emotional harm and distress to [the named workers] in their employment’, and that it had achieved that object. The result was that, because of the publication of the poster, ‘each named employee attended work with an underlying apprehension and fear that a co-worker … would visit violence upon him, whilst at work, or upon him and/or his family after work, or upon his property.’ Tracey and Buchanan JJ held at  that ‘it seems to be clear that the primary judge was comfortably satisfied that publication of the posters had achieved their intended effect – to act to the prejudice of the five employees – and that those intended effects were bound up with their employment. It would be artificial to say that the prejudice was not in the employment.’ (my emphasis) In doing so, their Honours invoked the wider conception of the value of employment discussed in Quinn v Overland (2010) 199 IR 40 at  and Blackadder v Ramsey Butchering Services Pty Ltd (2005) 221 CLR 539 at .
The other member of the Full Court, Bromberg J, agreed, but with a slightly different perspective. His Honour held at  that fear and distress that is both experienced in the employment, and arises from it, can constitute a prejudicial alteration to ‘the non-pecuniary advantage of a safe work environment.’
In a significant judgment given last week, in Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd  FCA 1009, the Federal Court dismissed a union’s criticisms of a process of consultation, and in doing so made three points of general importance about employers’ obligations to consult about workplace changes.
An enterprise agreement required the employer to consult with employees and their representatives about proposed redundancies.
‘Consultation’ was defined to involve ‘a genuine opportunity to influence and inform the decision making process over a significant and important issue.’
The first point of interest was the Court’s conclusion that ‘[t]here is no fixed format for consultation.’ ‘In many, if not most, cases, a meeting may well be an essential feature of consultation. But in the absence of some particular prescription in an industrial instrument, that will be because good industrial relations practice and, as ought not to be any different, ordinary experience of life as to the benefits of the spontaneity and flexibility of communication which a face-to-face meeting offers, make it so… In some cases, perhaps, an exchange of emails might suffice… What is essential is that it is apparent from all of the circumstances that the requisite opportunity genuinely has been extended.’
Second, the Court held that there is no general requirement that the employer’s decision maker participate directly in the consultation. ‘For a corporation, the decision-making “process” may be the resolution of a board of directors. The members of that board could, collectively, if they wished, represent the company in the consultation at a meeting held for that purpose. Equally, the corporation could be represented at a meeting held for that purpose by one or more of its officers or employees.’ Perhaps if a corporation was represented by a junior officer who was ignorant of the issues, ‘at the very least an interrogative note might have been raised about whether it had set out to afford a genuine opportunity to consult or any opportunity at all.’ But in this case, the employer was represented at meetings and in correspondence by a senior employee who, the Court found, was well-informed, and ‘well-disposed and receptive to being influenced and informed and, to the extent matters lay beyond his remit, to ensuring that any other corporate decision-makers within BHP Coal or BMA were, via him, informed and influenced by what was raised.’ The Court particularly approved a particular aspect of that employee’s evidence, giving what might be taken as a textbook definition of what consultation really requires of an employer: ‘We were after ideas, thoughts and proposals.’
Third, the Court made some important observations about the content of an obligation to consult. ‘[T]he obligation to consult does not carry with it any obligation either to seek or to reach agreement on the subject for consultation. Consultation is not an exercise in collaborative decision-making.’ And, consultation ‘entails furnishing such information about the occasion for consultation as is reasonably necessary for the making of suggestions in respect of the subject for consultation and being receptive to any resultant suggestions. It does not mean that one cannot approach consultation with a particular outcome in mind, only that one’s mind not be unduly fixed.’
No case is more often cited, and more often misunderstood, than Jones v Dunkel.
It stands for two propositions.
The first – and I think the most important – governs drawing inferences generally. An inference is a conclusion that a fact exists based, not on direct evidence, but on the existence of some other fact or facts, made by the ordinary exercise of reason in the light of human experience: G v H (1994) 181 CLR 387, at 390. The critical point made in Jones v Dunkel is that an inference can only arise ‘as an affirmative conclusion from the circumstances proved in evidence, that is, ‘[o]ne does not pass from the realm of conjecture into the realm of inference until some fact is found which positively suggests, that is to say provides a reason, special to the particular case under consideration, for thinking it likely that in that actual case a specific event happened or a specific state of affairs existed’: Jones v Dunkel at, respectively, 304 and 305; see also at 31-320, Carr v Baker (1936) 36 SR(NSW) 301 at 306-307, and Bell v Thompson (1934) 34 SR(NSW) 431 at 436-437.
The second proposition in Jones v Dunkel that is the unexplained failure of a party to give evidence, or to call someone who might properly be thought would be able to throw light on a fact in issue, confirms any inferences that may properly be drawn against that party, rendering more probable the inferences against them that are open on the evidence: Jones v Dunkel at 312 and Finance Facilities Pty Ltd v Federal Commissioner of Taxation (1971) 127 CLR 106 at 119. The ways in which this principle operates are explained in United Group Resources Pty Ltd v Calabro (No 5) (2011) 198 FCR 514 at  and . An unexplained failure to give evidence ‘is not treated as evidence of fear that it would expose an unfavourable fact, nor an assertion of the non-existence of the fact not proved’: HML v R (2008) 235 CLR 334 at .
The law is beginning to engage with the new gig economy.
Today there are reports of a possible sham contracting test case in Victoria to establish whether riders working with food delivery companies such as Foodora and Deliveroo are independent contractors carrying on their own businesses, as those platforms assert, or whether they are in truth employees.
In the United Kingdom, the Employment Tribunal is to consider the status of Uber drivers. GMB, a union representing private hire drivers, claims that the drivers are wrongly treated as independent contractors, saying: ‘Uber currently denies that its drivers are entitled to the most basic of workers’ rights. Uber’s defence is that it is just a technology company, not a taxi company, and that Uber drivers do not work for Uber but instead work for themselves as self-employed business men and women. We will argue that Uber exerts significant control over its drivers in order to provide an on-demand taxi service to the public…We are seeing a creeping erosion of employment rights as companies misclassify their workers as self-employed so as to avoid paying them holiday pay and the national minimum wage.’
In the United States, in March 2015, a District Court in California in O’Connor v Uber Technologies, Inc dismissed Uber’s application for summary judgment of drivers’ claims that they were entitled to be paid and treated as employees.
The interlocutory judgment recorded Uber’s argument that ‘it is not a “transportation company,” but instead is a pure “technology company” that merely generates “leads” for its transportation providers through its software. Using this semantic framing, Uber argues that [the drivers] are simply its customers who buy dispatches that may or may not result in actual rides. In fact, Uber notes that its terms of service with riders specifically state that Uber is under no obligation to actually provide riders with rides at all. Thus, Uber passes itself off as merely a technological intermediary between potential riders and potential drivers.’ The District Court emphatically rejected that argument, on the ground that ‘Uber does not simply sell software; it sells rides…If…the focus is on the substance of what [Uber] actually does…it is clear that Uber is most certainly a transportation company, albeit a technologically sophisticated one.’
The Court went on to find that Uber’s revenue depended ‘on the generation of rides by its drivers’, and that it exercised substantial control over the amount of revenue it earned by unilaterally setting fares, the qualification and selection of its drivers, and their performance, including by terminating the accounts of drivers who it deemed not to be performing to its standards. Uber’s many ‘suggestions’ as to how drivers should perform their work were found to arguably be instances of control.
The litigation later became a class action involving every driver who had worked with Uber since 2009. However, there will be no final judgment, as the litigation settled in April 2016.
We still await definitive determinations of whether and when workers in the gig economy are really employees. Technology is finding new ways of connecting platforms selling a service with consumers who want to buy that service. Many of those services have to be delivered by people. For whom are those people working: themselves, or the platform? O’Connor is an early indication that courts may not always be bemused by the technology, but might instead focus on the substance of what the platforms actually do.