Case: Patrick Stevedores Operations No. 2 Pty Ltd v Maritime Union of Australia (No. 3) [1998] HCA 30 ; (1998) 195 CLR 1 
Outcome: referred to
Counsel for the respective parties drew attention to authorities of this Court concerning the relevant operation of the Act. First as to s 298K(1) ( supra ), attention was drawn by counsel for Mr Lever to the reasons for joint judgment of five members of the High Court in Patrick Stevedores Operations No. 2 Pty Ltd v Maritime Union of Australia (No. 3) [1998] HCA 30 ; (1998) 195 CLR 1 (Brennan CJ, McHugh, Gummow, Kirby and Hayne JJ), where at [4], the following appears in relation to the operation of aspects of that subsection already extracted above in these reasons: '... Paragraph (a) covers termination of employment; par (b) covers injury of any compensable kind; par (c) is a broad additional category which covers not only legal injury but any adverse affection of, or deterioration in, the advantages enjoyed by the employee before the conduct in question. Proof of the reason for engaging in the prescribed conduct is the subject of s 298V....' It was submitted on behalf of Mr Lever that it was within that legal framework that his case had been brought, and further that '[i]n the light of the [foregoing judicial] observations as to the onus applicable in proceedings under Part XA of the Act, it is envisaged that significant submissions will be required in reply to meet the evidentiary case presented by [ANSTO] in seeking to discharge its onus in the matter'. 30 As I have foreshadowed, the issues presently arising for judgment are confined to liability, the further case of Mr Lever as to compensation and penalty having been stood over pending the outcome of the case on liability. Mr Lever emphasised that his complaint related to the absence of his reclassification to a higher employment grade within the ranks of ANSTO, and not merely to incremental increases in salary within a grade, and that it was within that legal framework of what his counsel described, citing Patrick Stevedores as quoted above, as the 'broad additional category that covers not only legal injury but any adverse affection of, or deterioration in, the advantages enjoyed by the employee before the conduct in question' that his present proceeding was said to have been brought. Emphasis was further laid by Mr Lever upon the statutory expressions of ' injure ' and ' prejudice ' appearing in pars (b) and (c) of s 298K(1), and to enunciation of principles appearing in the authorities to which I have already referred, and in relation to which the Courts were said to have given 'a broad and wide ranging operation', and in particular by the High Court in Patrick Stevedores . 31 It was next submitted by Mr Lever that the veracity of his testimony was 'unshaken', his recollection of events was not materially challenged by contemporaneous documentation, and moreover that the testimonies of his various witnesses were 'unchallenged by cross-examination going to the substance of their factual assertions'. On the other hand the testimony of Dr Smith, the Executive Director of ANSTO, was said by Mr Lever to have been '... ultimately unhelpful [as to what was] undertaken by [ANSTO] during his tenure', and 'cavalier', and 'of no or minimal assistance to the Court'. The affidavit testimony of the industrial relations advisor to ANSTO, Mr Davies, was described by Mr Lever as largely 'formulaic', and that to the extent of 'any inconsistency' with Mr Lever's testimony, the latter should be 'with little hesitation ... preferred'. 32 Of more significance to the resolution of the issues arising was said by Mr Lever to be the evidence of Dr Doherty, described by counsel for Mr Lever as 'the de facto supervisor and director responsible for [Mr Lever's] active employment with [ANSTO]'. It was submitted by Mr Lever that the following five emails reflected adversely upon ANSTO's case concerning Dr Doherty's motivation: (i) the first email sent on 12 November 2002, in reference to Mr Lever's work as a union delegate on the enterprise bargaining negotiations team, which contained the assertion that '... [t]he history of [Enterprise Bargaining] processes almost everywhere is that they usually contain a confrontational element, which does not endear the union reps to management, so taking part has the potential to be career limiting, without any conscious design on the part of management to make it so'; (ii) the second email sent on 12 December 2002, by way of 'begging' Mr Lever 'for [his] own sake' not to pursue his industrial entitlement to a peer review; (iii) the third email sent on 5 May 2003, to the effect that Mr Lever needed to get his classification dispute with ANSTO 'out of the way quickly for [his] sake'; (iv) the fourth email sent on 17 July 2003, stating that 'Ron, I heard that you had decided not to proceed to the final IRC process. Is this true? I hope so. I would not like to see you destroy your career prospects here, unless you're planning to leave anyway. You still have goodwill amongst your ANSTO clients'; (v) the fifth email sent on 18 July 2003 wherein Dr Doherty asserted that 'I am sorry to hear it [that Mr Lever was still trying to resolve his classification dispute] because I think it's inevitable that it will affect your career here, but maybe you are not intending to stay in any case. I'll let it rest'. 60 Mr Lever contended in any event that '[m]uch of the factual background in support of these alleged breaches is uncontested', being breaches which 'relate essentially to Mr Lever's request for paid overtime, which request was denied by [ANSTO]', and further that '[t]he request and denial are not disputed by [ANSTO]'. Mr Lever further contended that '[t]his request and denial clearly amounts to injury to [Mr Lever] in his employment relations with [ANSTO] as defined by the High Court in Patrick Stevedores [195 CLR 1]', though the submission was not amplified with specificity or exemplification by reference to the dicta cited earlier in these reasons from Patrick Stevedores concerning 'adverse affection of, or deterioration in, the advantages enjoyed by the employee ...' . The Court was referred thereafter to the evidence of Dr Hammerton, a principal research scientist in ANSTO's Institute for Environmental Research, to the effect that throughout the years 2002, 2003 and 2004, Mr Lever 'was regularly engaged in his union activities'; the Court was referred in particular to pars 5, 6 and 7 of her affidavit evidence. 61 I was next referred to the affidavit evidence of Mr Bloom, (who was employed by ANSTO as a Facilitative Technologist Band 6, and who was also a member of ANSTO's Peak Council as a representative of the Australian Manufacturing Workers' Union). He was said to have provided affidavit evidence on behalf of Mr Lever to the effect that Mr Lever 'had a major influence from 2002 to 2004 in various forums as a CPSU delegate in addressing ANSTO's staff/management issues' (I was referred in particular to paragraph 4 of Mr Bloom's said affidavit of 9 November 2006). Mr Bloom testified to the effect that Mr Lever was a key union negotiator in the pay scale dispute previously brought before the Australian Industrial Relations Commission, and that Mr Bloom had participated, along with Mr Lever, in a large number of classification disputes at reference panels as union advocates. Mr Bloom further testified as to a conversation with Dr Smith, the then Executive Director of ANSTO, at which Mr Lever was present, and said to have occurred in about June or July 2004, being a conversation relating to '... a number of outstanding unresolved industrial issues, including the amount of time required to negotiate the forthcoming Enterprise Agreement and other union dealings with management'. Mr Bloom's unchallenged testimony was that Dr Smith then said as follows: 'I would allow reasonable time for time spent on union activities. I would not put a percentage of time spent.' 'I understand the nature of the work and at any one time the amount of work required to be done is relative to the nature and number of industrial disputes.' 62 It was submitted by Mr Lever accordingly that such evidence as to ANSTO's acceptance of Mr Lever's role as an active union delegate, and later as site president for the CPSU, was 'consistent with any reasonable reading of [Mr Lever's] duties for [ANSTO]', albeit in an earlier period during 'the latter half of 2002 and the first half of 2003 as being devoted in part to his union activities and in part to his substantive role'. It was further submitted that so much was also consistent with the evidence of Mr Cullen (as appearing at transcript page 551) as follows: 'His Honour: Was this doing union work in hours during employment hours or externally to employment hours? --- Well, I suppose that was part of the question. It's [ sic ] circumstances which suggested to me it was during hours. Mr Shoebridge: And it was acknowledged within ANSTO that union delegates were allowed to do union work in work hours. That's right? --- That's correct. I would take the opportunity to add that on the same page of the transcript the following appears: His Honour: Was there any particular view taken or practice adopted by ANSTO as to employees doing union work during working hours other than perhaps on urgent matters or matters of an exceptional nature? --- My understanding was that it was recognised that they could do union work during official hours up to approximately 10 per cent of the time.' It was further submitted by Mr Lever in that context that '... it was as much in [ANSTO's] interest as that of the employees' unions, to effectively and efficiently resolve industrial disputes involving both individual employees and the enterprise bargaining agreements'; so much would be doubtless accepted by ANSTO, and I do not understand any submission having been advanced by ANSTO to the contrary, though the relevance of the observation to the issues might be debateable, for what that might ultimately matter. 63 It was said by Mr Lever to be 'in the light of this history' (as I have sought to record in these reasons in detail) 'that [Mr Lever]approached Mr Cullen [formerly, I would record, the General Manager, Corporate Services, ANSTO] with a request as to [payment of] overtime; I was referred in that regard to Mr Lever's evidence at paragraph 55 of his affidavit of 17 November 2006, where he deposed to his conversation with Mr Cullen in about April 2003, and his request thereby made for approval to be paid for overtime by reason of what counsel for Mr Lever described as Mr Lever's 'difficulty in finishing the directory structure and code required of him in his work for ANSTO'. Mr Lever's account of Mr Cullen's response included the following: [Mr Cullen]: I am not sure if I can approve overtime while you are doing union work; why don't you drop it? [The Applicant]: What the union work? That won't solve any problems, someone still has to do it. I do not like the idea of leaving these matters unresolved. I think I should at least follow it through to completion of the matters I have at hand. I have spent over 6 months on [this] and you agreed that I was the one to control changes to the document. We are close to agreement [for] the first time since 1998 and you want me to drop it now? [Mr Cullen]: No, that's OK, I will have a talk to Ian [Crakanthorp] and get him to let you know.' I was further referred in the foregoing context to Mr Lever's affidavit of 1 June 2006, where in paragraph 61, he recorded the following conversation between himself and Mr Crakanthorp: 'Mr Crakanthorp: Mr Cullen's asked me to inform you that he cannot approve you working paid overtime. [The Applicant]: I'm very disappointed. Does it have anything to do with my union activities? Mr Crakanthorp: Yes, I think so.' 64 Mr Lever pointed thereafter to Mr Crakanthorp's testimony (given under cross-examination at the hearing on 8 December 2006 and appearing on transcript page 596) concerning his conversation with Mr Cullen which occurred in about early to mid 2003, on the subject of Mr Lever working overtime, and where Mr Crakanthorp was said to have admitted that at the time he had thought that Mr Lever was devoting 'approximately 80% of his working day to union related work', though where Mr Crakanthorp went on to say that such assessment of 80% was arrived at by '[j]ust pluck[ing] a number out of the sky really'. Nevertheless Mr Crakanthorp adhered to that estimate of 80% under cross-examination. Moreover Mr Crakanthorp agreed that he was 'sitting fairly close to [Mr Lever]', and '... having day to day conversations with him'. Mr Crakanthorp acknowledged in that context that Mr Lever 'was the only one who could run his programming' in relation to 'directory structures' in order to be able to 'respond to requests to adapt and change [such structures]' (transcript p 601). Mr Crakanthorp was said to have admitted that the IT directory project, for which Mr Lever was primarily responsible, had fallen behind schedule. It was submitted by Mr Lever that it was in those circumstances, albeit 'over a period of about 12 months' (as acknowledged by Mr Crakanthorp during cross-examination) that Mr Lever had requested payment of overtime to work after hours and complete his work. 175 In relation to those circumstances, counsel for Mr Lever contended that '[i]t is hardly torturing ... the English language to suggest that this amounts to injury for the purposes of the Act' (emphasis added). However no authority was cited in support of that proposition and I have encountered difficulty in rationalising how that purported statutory description of conduct on ANSTO's part is accommodated by authority, notwithstanding the width of the statutory notion of ' injury ' as exemplified for instance by the High Court in Patrick Stevedores , and more recently by Tracey J in Qantas ( ante ). 176 Those alleged breaches on ANSTO's part were said to be constituted by '... breaching [Mr Lever's] right to privacy in relation to the use of emails in the ANSTO workplace', being conduct of ANSTO described by Mr Lever as obtaining unlawful access to his emails. However Mr Lever did not identify any basis that would conceivably establish his asserted right to the privacy of the emails sent to him at ANSTO's workplace. This controversy apparently arose in October 2004 in the course of an investigation by Messrs Cullen and Davies into an alleged security breach by Mr Lever and another ANSTO employee, Person X (so-called). At the request of Messrs Cullen and Davies, Mr Crakanthorp copied onto a compact disc the email folder on a computer owned by ANSTO and allocated to Mr Lever for his use at work. Mr Crakanthorp provided the compact disc material to Mr Davies, who was said to have 'scrolled through the list of emails in the folder and read some emails between [Mr Lever] and [Person X]'. 177 A principal contention of ANSTO was that such conduct on the part of its senior officers would not have contravened the Workplace Surveillance Act 2005 (NSW), even if that Act had been in force in 2004 and even if a State law applied to the activities of a Commonwealth authority. Nor did such conduct contravene the Privacy Act 1988 (Cth), nor any other law in force in 2004, as to which Mr Lever provided no satisfactory rejoinder, so ANSTO further submitted. Moreover no contravention of pars (b) or (c) of s 298K(1) was said by ANSTO to have been articulated by Mr Lever, satisfactorily or at all.