2023 WAIRC 00708
CONTRACTUAL BENEFIT CLAIM
WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2023 WAIRC 00708

CORAM
: SENIOR COMMISSIONER R COSENTINO

HEARD
:
MONDAY, 26 JUNE 2023, TUESDAY, 27 JUNE 2023, WEDNESDAY, 28 JUNE 2023, THURSDAY, 29 JUNE 2023

DELIVERED : FRIDAY, 18 AUGUST 2023

FILE NO. : B 111 OF 2022

BETWEEN
:
CHRISTOPHER FRAWLEY
Applicant

AND

CONSTRUCTION, FORESTRY, MARITIME, MINING AND ENERGY UNION AND ANOTHER
Respondents

CatchWords : Industrial Law (WA)  s 29(1)(d) - Denied contractual benefit  Whether union organiser’s elected position was employment for a fixed term  Whether dismissal at initiative of employer  Resignation  Mutal determination  Identity of employer  Assessment of damages  Mitigation  Claim dismissed
Legislation : Industrial Relations Act 1979 (WA)
Fair Work (Registered Organisations) Regulations 2009 (Cth)
Result : Claim dismissed
REPRESENTATION:

APPLICANT : MR J THEODORSEN AS AGENT AND MR A DRAKEBROCKMAN AS AGENT
RESPONDENTS : MR T DIXON OF COUNSEL AND MR D RAFFERTY OF COUNSEL

Case(s) referred to in reasons:
Achal v Electrolux Pty Ltd (1993) 50 IR 236
Allison v Bega Valley Council [1995] NSWIRComm 175; (1995) 63 IR 68
Barclay v City of Glasgow District Council [1983] IRLR 313
Fair Work Ombudsman v Austrend International Pty Ltd [2018] FCA 171; (2018) 273 IR 439
Grout v Gunnedah Shire Council (1994) 125 ALR 355; (1994) 1 IRCR 143
Hughes v Gwynedd Area Health Authority [1978] ICR 161
Jennings v The Trustee for Alsop Gordon & Best Unit Trust t/a AGB Training [2019] FWC 638
Kestell v Davey [No 3] [2023] WASC 289
Koutalis v Pollett [2015] FCA 1165; (2015) 235 FCR 370
KwikFit (GB) Ltd v Lineham [1992] ICR 183
Matthews v Cool or Cosy Pty Ltd & Anor [2004] WASCA 114; (2004) 84 WAIG 2152
Minato v Palmer Corporation Ltd (1995) 63 IR 357
Mylan v Health Services Union NSW [2013] FCA 190
Perth Finishing College Pty Ltd v Susan Watts (1989) 69 WAIG 2307
Quirk v Construction Forestry Maritime Mining and Energy Union [2021] FCA 1587; 398 ALR 39
Rizhao Steel Holding Group Co Ltd v Koolan Ire Ore Pty Ltd [No 2] [2010] WASC 385
Rohan v S&DH Enterprises Pty Ltd [2023] WAIRC 00076; (2023) 103 WAIG 174
The St Cecilia's College School Board v Grigson [2006] WAIRC 05293; (2006) 86 WAIG 3146
Western Excavating (EEC) Ltd v Sharp [1978] 1 All ER 713; [1978] ICR 221

Table of Contents

Background 4
The Commission’s Denied Contractual Benefits Jurisdiction 5
Was Mr Frawley employed for a fixed term of four years? 5
Was Mr Frawley’s employment terminated at the Union’s initiative? 9
Tuesday, 26 July 2022 10
Mr Frawley does not work after 26 July 2022 15
The Kinky Lizard Café  29 July 2022 16
The Redundancy Letter 19
Is the redundancy letter proof of a termination at the Union’s initiative even if Mr Frawley agreed to it? 21
Can termination by mutual agreement be termination at the Union’s initiative? 22
Was the CFMEUW Mr Frawley’s employer as well as the CFMMEU? 22
Can the Union make an organiser’s elected position redundant during the term of office? 23
Has Mr Frawley failed to mitigate his loss? 24
How should the ReddiFund payment be treated in assessing damages? 25
Conclusion and Orders 26


Reasons for Decision

1 Mr Christopher Frawley was, but is no longer, an organiser for the Union In these reasons I will refer to the two respondents, being the federally registered Construction, Forestry, Maritime, Mining and Energy Union and the State registered The Construction, Forestry, Mining and Energy Union of Workers jointly and interchangeably as the Union. Whether the reference is to these organisations jointly or to one or the other of them will depend on context. Where it is important to distinguish which organisation is referred to, CFMMEU is used to refer to the federally registered union and CFMEUW is used to refer to the State registered union.
. He now claims that the way his employment with the Union came to an end amounts to a denial of a contractual benefit, namely, employment for a fouryear fixed term. He wants the Union to compensate him for his loss of wages, resulting from this alleged breach.
2 The Union says that Mr Frawley was not contractually entitled to employment for a fixed term. The Union also says that even if he was, Mr Frawley is no longer employed because he quit on 26 July 2022 and then reached an agreement with the Union about how the termination would take effect. Therefore, there was no repudiatory conduct or breach of contract by the Union.
3 For Mr Frawley’s denied contractual benefit claim to succeed, he needs to establish two vital things:
(a) that it was a term of the employment contract that the employment was for a fixed term correlating to the fouryear union election cycle and that the Union could not unilaterally terminate the employment during that term (except in limited circumstances, under the Union’s Rules CFMMEU Construction and General Division and Construction and General Divisional Branches Rules.
).
(b) that the employment was terminated at the Union’s initiative in breach of the term referred to (a). This primarily involves resolving conflicting accounts of what happened between 26 July 2022 and 2 August 2022.
4 This matter involves several other contested issues which require resolution only if Mr Frawley establishes both the above two vital elements:
(a) Who is Mr Frawley’s employer with liability to make good any denied benefit?
(b) What damages result from any denied benefit? This includes consideration of these issues:
(i) Do the Union’s Rules permit it to make an elected position redundant with effect during its term?
(ii) Did Mr Frawley fail to mitigate his loss?
(iii) Should the ReddiFund redundancy be deducted from the loss calculation?
Background
5 Mr Frawley commenced employment with the Union in July 2018. He had been a member of the Union for many years before that. His father was a life member.
6 The employment arrangements were relatively informal. There was no written contract of employment.
7 Mr Frawley was highly regarded by his work colleagues at the Union, and by the members at the worksites that he attended as an organiser. He was described as a nice bloke who was wellliked. He was seen as a future union leader.
8 The value the Union’s leadership placed in Mr Frawley was recognised when the Western Australian Branch Secretary, Mr Mick Buchan, approached Mr Frawley to run for an elected organiser position on Mr Buchan’s ticket in the Union’s 2020 elections.
9 Mr Frawley was elected unopposed to one of five positions of the CFMMEU Western Australia Divisional Branch organiser commencing from 1 January 2021.
10 Visiting work sites at various locations around the Perth metropolitan area was a core part of Mr Frawley’s job as an organiser. He needed to attend sites to service and recruit members, and conduct health and safety inspections. Therefore, it was important for him and all organisers to have a valid driver’s licence.
11 Mr Frawley lost his driver’s licence for ‘DUI’ while he was on leave from work in September 2021. His licence was suspended for nine months. Mr Frawley continued to work as an organiser, but changes were made to accommodate the fact he could not drive himself to sites.
12 Mr Frawley regained his licence on 13 June 2022, and regained use of a Union vehicle on 27 June 2022.
13 Things blew up a few weeks later, on Tuesday, 26 July 2022. On that day, Mr Frawley exchanged words in text messages and in person with four other Union colleagues. Who said what, and what the words meant, is contested.
14 It is not contested that Mr Frawley did not return to work after that day.
15 There was a meeting between Mr Frawley and Mr Buchan at the Kinky Lizard Café a few days later, on Friday, 29 July 2022. Mr Frawley’s and Mr Buchan’s versions of what was said, or not said, differ significantly.
16 Mr Frawley’s last day as a Union employee was 29 July 2022.
The Commission’s Denied Contractual Benefits Jurisdiction
17 Mr Frawley makes his claim under s 29(1)(d) of the Industrial Relations Act 1979 (WA) as a claim that he has been denied a contractual benefit.
18 There is no dispute that Mr Frawley’s claim is an industrial matter within s 29(1)(a) of the Act. It is a claim for a remedy for a denied contractual benefit within the terms of the employment of contract and sourced in the employment contract: Rohan v S&DH Enterprises Pty Ltd [2023] WAIRC 00076; (2023) 103 WAIG 174 at [70].
19 Employment that is terminated by the employer before the end of a fixed term in repudiation of the contract, which is not accepted by the employee, will constitute a denied contractual benefit for the purpose of s 29(1)(d): Perth Finishing College Pty Ltd v Susan Watts (1989) 69 WAIG 2307 at 2315. The denied contractual benefit is the entitlement to the full term of the employment.
20 The Commission is empowered to order payment of a monetary amount to compensate for the denied benefit: Watts and Matthews v Cool or Cosy Pty Ltd & Anor [2004] WASCA 114; (2004) 84 WAIG 2152 at [18] and [24].
21 Accordingly, Mr Frawley’s claim is within the Commission’s jurisdiction, and the remedy he seeks is one the Commission may order if his claim is established.
Was Mr Frawley employed for a fixed term of four years?
22 Mr Frawley’s case is based on his employment contract containing an implied fixed term of four years, being the term of the elected organiser position.
23 Mr Frawley’s submissions relied on what was said Quirk v Construction Forestry Maritime Mining and Energy Union [2021] FCA 1587; 398 ALR 39 at [21] and Mylan v Health Services Union NSW [2013] FCA 190 at [26] in support of the conclusion that where a person is elected to a paid position in a union, there will be a term in the resultant employment contract that the employment is for a term that is coextensive with the term of the elected position.
24 In Mylan, Buchanan J said at [26]:
…I have no doubt that any employment which Mr Mylan may have held with the union was coextensive with holding office in the union and depended upon that circumstance…
25 There is no dispute between the parties that:
(a) Mr Frawley’s elected term was four years, pursuant to rule 38(b) of the CFMMEU’s Rules; and
(b) where a person is elected to a position that is one referred to in rule 49 of the CFMMEU’s Rules, there will be a term in the resultant employment contract that the employment is for a term that is coextensive with the term of the elected office.
26 However, the Union says that the position of ‘organiser’ is not a position referred to in rule 49.
27 The conclusion in Quirk that the elected organisers’ employment was coterminous with the elected office was based on the implicit finding that those organisers were elected to positions referred to in rule 49. Whether rule 49 applied or not does not appear to have been a live issue in the case. Rather, it appears from his Honour Perram J’s reasons at [17] and [19] that the parties agreed that rule 49(a) applied to the elected organisers.
28 Similarly, in Mylan, which his Honour Perram J cited and relied upon, the respondent union accepted, for the purpose of a summary dismissal application, that Mr Mylan held employment with the Union coextensively with holding office in it: [7].
29 The Union says that if the correct position is that rule 49 does not apply to elected organisers in the Western Australian Divisional Branch, then the basis for the implication of the term in the employment contract falls away.
30 Rule 49 provides:
49 – FULL TIME PAID OFFICERS
(a) A member who has been elected to any positions in a fulltime capacity shall be employed full time in the service of the Divisional Branch and be paid such weekly wage as shall be determined at a properly constituted meeting of the Divisional Branch Council; provided however, that the rate fixed shall not be less than the leading hand rate in the highest major Award for carpenters in the building industry.
(b) Fulltime paid officers shall be under the control of the Divisional Branch Management Committee between Divisional Branch Council meetings and shall carry out all instructions of the Divisional Branch Council or Divisional Branch Management Committee in accordance with the Rules.
(c) Should a fulltime paid officer desire to resign they shall give one (1) month's notice in writing of his intention so to do to the Divisional Branch Management Committee.
(d) A fulltime paid officer shall not work for any other person, body or corporation for profit or reward, or at all, during their term of office without the sanction of the Divisional Branch Council first being obtained.
(e) Should any fulltime officer through illness or any other physical disability be unable to carry out the duties as prescribed by the Rules, the officer shall furnish a medical certificate to the Divisional Branch Management Committee within seven days of becoming unable to carry out the duties setting out the nature of the disability, and the duration of such incapacity so far as the same can be estimated, and before resuming duties the officer shall furnish to the Divisional Branch Management Committee a medical certificate setting out that he/she has recovered and is capable to carry out the duties in accordance with the Rules.
31 The issue in dispute is whether the position Mr Frawley was elected to was ‘any position in a fulltime capacity’ as those words are used in clause 49(a).
32 The Union submitted that, for this rule to have the effect of requiring the Union to employ the elected person, it must be the elected position which meets the criteria of being ‘any position in a fulltime capacity’. The fact that a person is employed, and paid a weekly wage is a consequence of meeting the criteria, not the qualification.
33 I have no difficulty accepting the proposition that the requirement to employ comes after the election, and that the fact a person is employed is not conclusive of whether the elected position is a position referred to in rule 49.
34 The question remains, is the elected organiser position ‘any position’ as referred to in rule 49(a)?
35 Some support for the Union’s construction that it is not, might be found in the text of the Rules. In particular, certain of the positions listed in the rules are expressly mandated as ‘fulltime, paid’ positions: see rules 37(v), 43(b)(ii), 46(a) and 48C(5).
36 On the other hand, other positions are expressly described as ‘honorary’: rules 37(ii), 37(v) and 37(vi).
37 The organiser positions are described as neither fulltime, nor honourary in either rule 37(iv) which establishes the position, or rule 48, which sets out organisers’ duties.
38 However, rule 38 does clearly indicate that organiser positions are fulltime positions. Rule 38 concerns the conduct of Divisional Branch Elections. Rule 38(ii) prohibits members from nominating for more than one ‘fulltime office’ in any election. Rules 38(iii) and (iv) provide:
(iii) Where a member nominates for more than one fulltime position the Returning Officer shall seek from the member an election as to which position the member wishes to contest.
(iv) Where no election is made by the member the Returning Officer shall treat as valid only the nomination for the more senior position.
Seniority shall be determined in the following order:
Secretary, Assistant Secretary, President, Organiser.
39 Organiser positions are, therefore, clearly intended to be fulltime positions.
40 Further, the nature of organisers’ duties indicates that the position is intended to be associated with employment. Rule 48 says:
48 – (1) DUTIES OF ORGANISERS
(a) They shall be under the control and supervision of the Divisional Branch Management Committee and shall carry out their duties within the provisions of the Rules.
(b) They shall visit shops and jobs where members of the Divisional Branch and other workers eligible to join are employed and endeavour to enrol new members. They shall cooperate with all Shop and Job Stewards and District Secretaries, and carry out organisational work in any part of the State or Territory as directed by the Divisional Branch Management Committee.
(c) Nothing in this rule affects the right of an organiser elected, in accordance with the rules of the Divisional Branch, as a member of either the Divisional Branch Management Committee or the Divisional Branch Council.
…
41 It is practically essential for an organiser to be employed for Rule 48(1) to be fulfilled. The references to ‘control and supervision’ in particular are notions that go hand and hand with employment.
42 Organisers have no voting rights, and are not involved in the management, policy making, rule making or governance of the Union. Employment of organisers is the only practical consequence of their election.
43 The Union also submitted that organiser positions were not covered by rule 49 because:
(a) It could not have been intended that the Union is not able to remove staff, in particular organisers, but rather to be bound to continue to employ them subject only to the ability to remove them under rule 51, which involved a drawn out, complex process.
I am not persuaded by this argument.
There are mechanisms for the Union to suspend and remove elected organisers under rule 51 for a substantial breach of the rules, gross misbehaviour, gross neglect of duty or ineligibility for office.
If members elect a person to an elected organiser position, they do so in the expectation that the individual will discharge the duties set out in rule 48. To allow the Branch Secretary to remove an organiser’s ability to fulfill these duties at any time undermines the democratic running of the Union as contemplated by the rules.
(b) There was no evidence that the organisers were paid a weekly wage determined by a meeting of the Divisional Branch Council, as referred to in rule 49(1).
I do not consider that this assists in understanding which positions are ‘positions in a fulltime capacity’ in rule 49. Rather, if a person qualifies as being elected to such a position, it is then a requirement that they be paid in accordance with rule 49(a). Whether there is evidence of such payment being made does not assist in determining to whom such payment must be made.
44 For these reasons, I do not agree with the Union’s construction of rule 49. Rule 49 does apply to the elected position of organiser.
45 It therefore follows that it was an implied term of Mr Frawley’s employment contract that it was coterminous with the holding of his elected position as described in Quirk at [21]. In effect, his employment was for a term of 4 years, subject to the office being vacated as a result of death, resignation, retirement, dismissal or any other reason.
Was Mr Frawley’s employment terminated at the Union’s initiative?
46 The following facts about Mr Frawley’s employment were agreed, and are relevant background.
…
6. Mr Frawley first became a member of the Construction, Forestry, Maritime, Mining And Energy Union in 2003, and became a Union delegate in around 2010.
7. Mr Frawley started work at the Union office around early July 2018. In about June 2018, Mr Buchan agreed to employ Mr Frawley as a fulltime trainee Organiser.
8. Mr Buchan directed that the terms of Mr Frawley’s engagement included:
a. Mr Frawley would be required to carry out the duties of an Organiser on building construction projects in and around the central business district of Perth and the surrounding metropolitan area;
b. Mr Frawley would be a trainee for 12 months, during which time he would be paid 75 per cent of the salary of a fulltime Organiser;
c. If Mr Frawley successfully completes the trainee period, the First Respondent would thereafter pay Mr Frawley as a fulltime Organiser on a salary equivalent to that which would be earned by a CW3 trades person under the Building and Construction General Onsite Award working a 56hour week.
9. There was no written contract of employment or letter of offer of employment.
…
23. Mr Frawley agreed with Mr Buchan that he would nominate for a position as elected organiser, and he filled out nomination forms in late 2020 and gave them to Mr Buchan.
24. In about December 2020, Mr Buchan told Mr Frawley and other members on his ticket they had all been elected unopposed, and shortly after, Mr Frawley got a notice from the Australian Electoral Commission confirming this.
25. On about 22 December 2020, Mr Frawley was elected to the office of Divisional Branch Organiser unopposed for a term of four years commencing on 2 January 2021. From that time, Mr Frawley also held a corresponding office as Organiser of the Second Respondent.
…
47 While it is agreed that Mr Frawley completed election nomination forms in late 2020, the Union’s information provided under reg 138 of the Fair Work (Registered Organisations) Regulations 2009 (Cth) to the Registered Organisations Commissioner indicated that the nomination period was from 31 August 2020 to 18 September 2020.
48 Beyond the agreed facts, there was a vast difference between Mr Frawley’s version and the versions of the Union’s witnesses in relation to critical discussions and events. In general, I do not find Mr Frawley to be a credible witness. Where his evidence conflicts with another witness, I prefer the other witness’s evidence.
49 Mr Frawley was cagey when giving his evidence. He tended to spin things to suit his case and to dodge questions when he thought the truth might damage his case. For instance, he avoided naming a social motorcycle club he had been involved in and its bikie associates, doing so only after multiple questions were put to him. He was reticent when questioned about a job advertisement found on his mobile phone and whether he had sent it, or whether it was sent to him.
50 He also changed his evidence to correct it after giving false answers about who authored a particular email, how many jobs he had applied for, and whether words he used in a text message were commonly understood to refer to quitting.
51 Ultimately, though, it was Mr Frawley’s own text messages which sunk him. Recently, in Kestell v Davey [No 3] [2023] WASC 289 at [29], her Honour Smith J noted that the most reliable indication of a person’s knowledge of transactions or events is not their recollection of what was said; it is what they did and how they conducted themselves at the relevant time:
Contemporaneous, or near contemporaneous, documents provide more valuable and revealing information than what may be flawed attempts at recollection of those facts by witnesses, in particular, those with an interest in the outcome of the litigation…
52 Mr Frawley’s contemporaneous and near contemporaneous text messages are particularly revealing, as will be seen.
Tuesday, 26 July 2022
53 Mr Brad Upton was an Assistant Branch Secretary in the Union. He held an organisers meeting at the Union office at 6.00 am on 26 July 2022. During that meeting, he directed that Mr Frawley attend the East Perth Train Station to conduct a safety investigation under s 49I of the Act together with another organiser, Mr Steven Parker.
54 Without Mr Frawley knowing, Mr Upton also took Mr Parker aside and told him to ‘keep an eye’ on Mr Frawley during the safety investigation. Mr Upton explained that he did so because another organiser had recently told him her concerns about Mr Frawley taking a slack approach to a prior safety investigation she had done with him.
55 Whether or not Mr Upton expressly asked Mr Parker to, it was his intention that Mr Parker would report back to Mr Upton about Mr Frawley’s safety investigation abilities. Mr Parker also understood this to be Mr Upton’s meaning. Ultimately, Mr Upton wanted to know whether the other organiser’s reported concerns had any substance before deciding whether some form of intervention or management action might be required.
56 Meanwhile, either during or just after the organisers’ meeting, Mr Frawley sent the following text messages to Mr Troy Smart. Mr Smart was another Assistant Branch Secretary, and was Mr Frawley’s friend.

57 Mr Frawley will go on to say that shortly after he sent this message, he discovered that he was ‘under investigation’ and that this discovery caused him to snap. However, the above exchange shows that Mr Frawley was unhappy before whatever discovery followed it.
58 Mr Frawley had arranged right of entries on other jobs that day. Mr Upton’s direction meant he had to cancel those, and shuffle things around. Mr Upton had also declined Mr Frawley’s request to take his own car to East Perth, which would have enabled him to make phone calls en route. It is understandable that he was put out by Mr Upton’s direction.
59 But his text messages did not simply indicate he was put out. His words ‘absolutely fucked’ and ‘completely fucked’ show he had no residual goodwill towards the Union.
60 Mr Parker and Mr Frawley travelled together to East Perth in Mr Parker’s car. The East Perth Train Station site was no more than a 5minute drive from the Union office.
61 After entering the site, the organisers spoke to a safety advisor and walked around. Mr Frawley said he also spoke with a director of West Coast Rio, and some workers.
62 Mr Frawley and Mr Parker have vastly different views about the safety of the site, as they observed it while walking around.
63 Mr Frawley described the site as ‘impeccable’. He said it was so clean you could eat off the floor.
64 Mr Parker listed several issues which he observed and considered to be unsafe, requiring action.
65 It is unnecessary for me to make any findings about whose assessment was right.
66 According to Mr Frawley, before leaving the site, he said to Mr Parker, ‘Mate, do you see much more?’ to which Mr Parker just looked at him and shrugged. He said again, ‘Mate, what else can you see?’ Mr Parker again shrugged, so Mr Frawley imitated his shrugging out of frustration, saying, ‘Well what the fuck does that mean?’
67 At that point, according to Mr Frawley, Mr Parker said ‘this is your investigation...I’m here to investigate you’.
68 Mr Frawley asked, ‘What the fuck do you mean?’ Mr Parker said, ‘Brad told me to investigate you’, to which Mr Frawley responded, ‘Is that so’ and ‘Get the fuck out of here, let’s go…back and sort it out’.
69 Mr Parker then told the safety advisor on site that the investigation was being put on hold before they signed out.
70 Mr Parker, on the other hand, said that after walking around, he and Mr Frawley stood in an area where they had a good overview of the site. Mr Frawley asked Mr Parker ‘What’s next?’ He said he responded, ‘Well, we need to go fix some of the issues’ and pointed to a scissor lift which was visible from where they were standing. Welding screens had been placed on the scissor lift, creating a risk of the lift tipping over in the wind. Mr Parker then told Mr Frawley that he would observe Mr Frawley make the scissor lift safe. He denied he said ‘investigate’ or ‘your investigation’ but agreed that he effectively told Mr Frawley that Mr Upton had asked him to report back to him about Mr Frawley’s performance.
71 According to Mr Paker, Mr Frawley responded to this information by saying:
…Like fuck you will…You can observe me fucking quitting.
72 Mr Frawley then said they should leave the site and return to the Union office.
73 Initially, Mr Frawley said that they were on site for about an hour. According to Mr Parker, they arrived at 7.10 am and left at 7.31 am, meaning that the total duration of the visit was just 21 minutes.
74 Nothing turns on the total duration of the site visit, but the departure time given by Mr Parker does accord with the time Mr Frawley sent the following text messages to Mr Smart, which he accepts he did after they had signed out at the site, before and during the trip back to the Union office. These messages were exchanged between 7.29 am and 7.33 am:

75 Mr Parker drove them back to the Union office. Their evidence was consistent in that they agreed that they drove in silence for the short trip.
76 Although Mr Parker agreed that Mr Frawley appeared to be angry and upset when he was on site, he had the impression that he had calmed down by the time they arrived at the Union office, because Mr Frawley walked in front of him, and held the door open for Mr Parker as Mr Parker walked in. He saw no signs of agitation when they were at the office.
77 It is not suggested that Mr Frawley resigned when he spoke to Mr Parker. But the Union does say that if Mr Parker’s evidence is accepted, what Mr Frawley said to Mr Parker is consistent with him having resolved to resign, and therefore also consistent with Mr Upton’s evidence that Mr Frawley did later resign to Mr Upton or Mr Buchan or both of them.
78 I find that Mr Frawley said to Mr Parker that he could observe Mr Frawley quitting. The messages to Mr Smart are consistent with Mr Parker’s account, that is, that Mr Frawley told him that he had quit or was quitting. The messages refer to quitting and were sent within just minutes of when the discussion between Mr Frawley and Mr Parker must have occurred.
79 Mr Frawley had no plausible explanation for why he would have told Mr Smart he had quit, if that was not what he had done, or what he intended to do. He could not plausibly explain why he would lie to Mr Smart, who was his friend and confidante.
80 Mr Frawley’s evidence was that when he got back to the office, he went to see Mr Upton, who was then in another official’s office. He told Mr Upton he needed to have a word with him. The two then went to Mr Upton’s office, where Mr Frawley said:
…What the hell is this? Steve told me I’m under investigation…
81 He was somewhat vague about what Mr Upton’s response to him was. There was some suggestion that Mr Upton told him to calm down, and denied that he had told Mr Parker to investigate him. Mr Frawley also said that Mr Upton told him to take two days off, until Mr Buchan returned from a conference in Sydney.
82 Mr Frawley firmly denied that he said anything to Mr Upton about quitting. In crossexamination, he conceded that he could not recall what Mr Upton said to him.
83 Mr Upton’s account of the discussion was that Mr Frawley walked straight into the meeting and told him that he quit. Mr Frawley told Mr Upton that he was angry about being watched, or did not understand why he was being watched. He then said:
…I quit…I’m not going to put up with this shit.
84 According to Mr Upton, he then referred to the fact that Mr Buchan was away and would not be back for a couple of days. Mr Frawley was already aware of this. Mr Frawley then said he would take the car and drop the keys off when Mr Buchan returned. That was the end of the conversation. Mr Frawley then left.
85 Mr Frawley said he tried to ring Mr Buchan immediately after the meeting with Mr Upton. Mr Buchan did not answer his phone. Mr Buchan was on a flight to Sydney at the time.
86 At 7.53 am, Mr Frawley sent a text message to Mr Buchan:

87 The Commission was told that in union parlance, talk of returning the car and phone was associated with not wanting to do the job. In fact, in his written submissions filed before the hearing, Mr Frawley denies he intended the text message was intended as a notice of resignation, but admitted that he:
‘…knew those words were used in the Union office as a euphemism for terminating employment’
88 In his evidence, he sought to walk back from this admission, but ultimately, he agreed that the words were ‘in a round about way’ another way of saying a person had quit.
89 Mr Buchan’s evidence was that these words are a term used to say if organisers are not happy, they can leave the Union or quit.
90 Critically, Mr Frawley offered no alternative meaning that his words ‘the car and phone will be ready’ should be given. It was not suggested that the car and phone were both concurrently due for a service. Nor that the car and phone were both going to be loaned to someone else for their use. Nor that Mr Frawley no longer needed a car and phone to do his job as an organiser.
91 Mr Frawley’s counsel submitted that the words were ambiguous, because they could mean that he had been sacked. But the context does not permit that possible meaning either.
92 Mr Frawley says this message was sent to Mr Buchan as a ‘cry for help’. His subjective intention or understanding is irrelevant to the question of whether he did resign: Koutalis v Pollett [2015] FCA 1165; (2015) 235 FCR 370 per Rares J at [43][44], citing Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52; (2004) 219 CLR 165 at [40]. However, his evidence about his intention fortifies the conclusion that his text meant he was resigning.
93 Mr Frawley was, subjectively, hoping that Mr Buchan would react to the text. He wanted to get Mr Buchan’s attention. Mr Frawley did not say what reaction he expected. But a reaction could only be elicited from a resignation. If the text could mean something less, it was unlikely that it would get Mr Buchan’s attention, in the way Mr Frawley intended.
94 Mr Buchan landed in Sydney at about 10.21 am Australian Western Standard Time. After he disembarked, he received several text messages, including one from Mr Frawley and another from Mr Upton asking him to call.
95 Mr Buchan and Mr Upton both gave evidence that shortly after landing, Mr Buchan did call Mr Upton and they had a brief discussion. Mr Upton told Mr Buchan that Mr Frawley had come to see him, and had quit. While their evidence was consistent about the fact of the call, and Mr Frawley quitting, their evidence did not align about what the outcome of the call was. According to Mr Upton, Mr Buchan said he would take care of it on his return. According to Mr Buchan, he told Mr Upton that Mr Upton would have to take care of it, because he had to get to the executive meeting. It is unlikely anything turns on it, but I prefer Mr Upton’s version because it is consistent with what Mr Buchan subsequently did.
96 It emerged in Mr Frawley’s crossexamination that in the afternoon of 26 July 2022, after Mr Frawley had left work, a link to a job advertisement for ‘experienced Formwork Carpenters’ at Westforce Construction was exchanged between him and Mr Smart. Mr Frawley is a qualified carpenter with formwork experience.
97 This message came to light after the Union’s counsel called for Mr Frawley to produce the phone messages between him and Mr Smart of 26 July 2022. They were not included in the messages that Mr Frawley disclosed prior to the hearing.
98 Mr Frawley insisted in crossexamination that he could not recall whether he sent the job advertisement to Mr Smart or whether Mr Smart sent it to him. It matters not. Because Mr Frawley’s explanation, and the only plausible explanation, for such an exchange was that Mr Frawley was looking for other work options: in his words, ‘to see what else is out there because…work had got so toxic and fucked’. Clearly Mr Frawley was thinking about moving on.
99 As to the discussion between Mr Upton and Mr Frawley, I prefer and accept Mr Upton’s evidence. In addition to my general observations about Mr Frawley’s credibility, I note that Mr Upton’s evidence is consistent with:
(a) Mr Parker’s evidence that Mr Frawley told him he was quitting, and his demand to go back to the office for that purpose.
(b) His text message sent after the discussion with Mr Frawley asking Mr Buchan to call him.
(c) Him telling Mr Buchan that Mr Frawley had quit, as corroborated by Mr Buchan.
(d) Mr Frawley’s text message to Mr Buchan saying he would return the car and phone.
(e) Mr Frawley’s actions that day in looking at formwork carpenter job ads.
100 Mr Frawley’s version is implausible.
101 First, there is no reason for Mr Upton to have told Mr Frawley to take two days off. For instance, there is no evidence that Mr Frawley said he was not fit for work, or asked for time off. When Mr Frawley was given a chance to explain why Mr Upton would make that suggestion, he said, ‘…he’s realised he had to cover the tracks’. That makes no sense.
102 Second, if Mr Upton had told him to take two days off and wait for Mr Buchan’s return, there was no reason for Mr Frawley to then call or text Mr Buchan immediately after the meeting.
103 Third, it is inconsistent with what he was telling Mr Smart in text messages. In crossexamination Mr Frawley was given the chance to explain why he would have told Mr Smart he was quitting or had quit, but then not do so. He said that he had calmed down, because he had spoken to Mr Smart who ‘…talked me off the  he  he talking me into calming  pulling my head in’.
104 But he gave no account of such a conversation with Mr Smart in his evidenceinchief, and there could not have been any opportunity for such a conversation to have occurred anyway. He was with Mr Parker in the car on the way back to the Union office, and went to find Mr Upton as soon as he arrived back at the Union office.
105 I find Mr Frawley made up this explanation.
106 I also take into account Mr Frawley’s concession that he cannot recall what Mr Upton said during their discussion.
107 Accordingly, I find that on 26 July 2022, Mr Frawley told Mr Upton that he quit and would return the car when Mr Buchan returned from Sydney in two days’ time. I also accept Mr Upton’s evidence that he did not tell Mr Frawley to take two days off.
Mr Frawley does not work after 26 July 2022
108 Mr Frawley went home after his discussion with Mr Upton on 26 July 2022. As I have found that Mr Upton did not tell him to take two days off, this conduct is consistent with him resigning.
109 On 26 July 2022, Mr Frawley was paid for the period 22 July 2022 to 28 July 2022. The Union processed pays on a weekly basis, part in arrears and part in advance. Mr Frawley was paid as if he was going to work his ordinary hours for the entire period.
110 He did not attend work on Wednesday, 27 July 2022.
111 Mr Frawley sent an email to Mr Buchan, Mr Upton and the Union’s office manager on Thursday, 28 July 2022 saying:
After the incident that happened Tuesday morning I am still not right mentally to come in today.
112 Mr Frawley relies on this email as being consistent with his version that he had not resigned on 26 July 2022 and that Mr Upton had told him to take two days off.
113 I do not consider that this email outweighs all of the evidence against Mr Frawley. In particular, it is not contemporaneous with the events of 26 July 2022. Rather, it was sent two days later. It could equally be accounted for as:
(a) Mr Frawley considering he was within a notice period, as he had not yet met with Mr Buchan or returned the car and phone to him;
(b) Mr Frawley wanting to give a reason to avoid meeting with Mr Buchan in the office on that day;
(c) Mr Frawley seeking to stall his resignation from taking effect; and/or
(d) Mr Frawley having second thoughts about his resignation, and seeking to portray it as never happening.
114 On an unknown date, the Union’s office manager recorded on the Union’s payroll records that Mr Frawley had taken personal leave from 26 to 29 July 2022.
115 At 8.12 am on Thursday, 28 July 2022, Mr Buchan and Mr Frawley exchanged text messages proposing a meeting. Later that day, around 10.00 am, Mr Buchan and Mr Frawley had a telephone conversation during which Mr Buchan invited Mr Frawley to come into the Union office to meet with him. Mr Frawley told Mr Buchan that he did not want to come into the office to meet, so they arranged to meet at a café called the Kinky Lizard, the following morning.
The Kinky Lizard Café  29 July 2022
116 The two men met at about 6.30 am at the Kinky Lizard Café. There was some small talk about football, and the executive meetings Mr Buchan had attended. Mr Frawley then told Mr Buchan what had happened the previous Tuesday: that he believed he was being investigated by Mr Parker and Mr Upton while on the East Perth Train Station site, and that he confronted Mr Upton about this afterwards.
117 Mr Frawley was again vague as to what exactly he told Mr Buchan about his meeting with Mr Upton. He said that he:
…told him exactly what had happened with the investigation, exactly what had happened all the way through to Brad telling me to have two days off  everything  everything that was just previously stated
118 According to Mr Frawley, Mr Buchan then scoffed it off and said, ‘leave it with me, I’ll sort it out with the leadership’ and nothing else.
119 Mr Buchan’s account of the discussion at the Kinky Lizard Café was not much more illuminating or comprehensive. His evidence initially was that that after the small talk, he asked Mr Frawley what had happened, and Mr Frawley told him that he felt he was being set up, by being asked to go to the job with Mr Parker. According to Mr Buchan, he told Mr Frawley that he has ‘pulled the pin’, referring to the text Mr Frawley had sent him about returning the car and phone. He told Mr Frawley, ‘you can’t come back from that’ or ‘it’s hard to come back from’. He said he used the analogy of a football team, saying that you’ve got to be a team player. He said he told Mr Frawley he would go back to the executive to ‘work out how we can manage it’.
120 By ‘manage it’, Mr Buchan meant that he would talk to the leadership to work out how to manage his resignation to have less impact on Mr Frawley.
121 Mr Buchan indicated that Mr Frawley agreed with him, saying something to the effect of ‘yeah, you know, it is what it is. I’ve done it now’.
122 Mr Buchan said he’d be in touch, and they then shook hands and left.
123 On further questioning about the words Mr Frawley used, Mr Buchan elaborated on what he himself had said to Mr Frawley:
I said to Chris, “You’ve pulled the pin and you sent me a text to say your keys and your phone would be ready, um, it’s  you know, everyone’s talking about it. You’ve quit, be very hard to come back from that”…
124 In crossexamination it was put to Mr Buchan:
THEODORSON, MR: No one mentioned resignation or redundancy at all at that meeting?
BUCHAN, MR: Yes, they did. Chris did.
125 Whether Mr Buchan was suggesting Mr Frawley mentioned resignation or redundancy, or both was not clarified. Nor was there any elaboration as to what Mr Frawley allegedly said when mentioning resignation or redundancy. On Mr Buchan’s account, the only mention was Mr Frawley’s concession ‘yeah, [I] know’.
126 Neither Mr Frawley nor Mr Buchan suggested that there was any attempt by Mr Frawley to withdraw his resignation or deny the effect of it.
127 After the meeting, at 12.05 pm, Mr Frawley sent Mr Buchan this text message:

128 The election fund refers to deductions made from pay to be put towards future union election campaigning and reelection. Mr Frawley’s payslips show that $20 was deducted from his pay each pay cycle for the election fund.
129 The irresistible inference is that at the time Mr Frawley sent this message he was expecting to receive a termination payment himself. His message was intended to ensure that any such payment was maximised.
130 The message is totally inconsistent with Mr Frawley’s suggestion that he left the Kinky Lizard Café meeting expecting things to go back to normal.
131 It is consistent with Mr Buchan’s version of the meeting which was to the effect that he and Mr Frawley had agreed that the employment would end and Mr Buchan would speak to the leadership to see what could be done to make it beneficial to Mr Frawley.
132 At about 1.30 pm, Mr Buchan called Mr Frawley. Mr Frawley had taken the day off to attend a funeral. When he received the call, the funeral was about to start.
133 The call was brief. Mr Buchan told Mr Frawley, ‘we’ve agreed on the redundancy’. Mr Frawley responded, ‘fucking whatever’ and hung up.
134 Mr Frawley initially insisted that he only messaged Mr Buchan about being paid out as referred to in [127] above, after Mr Buchan’s phone call. However, after his phone was called for, and produced, he accepted that his payout was the subject of messages exchanged with Mr Buchan before 1.30 pm and before the phone call from Mr Buchan. Mr Frawley was led in reexamination to say that he might have been mistaken about the time of the funeral. But that evidence goes nowhere. He did not resile from his evidence that Mr Buchan’s call was just before the funeral started, and he did not establish that the funeral started before he sent the text message.
135 Mr Frawley submits that his words ‘fucking whatever’ are inconsistent with someone who has just reached an agreement. Mr Frawley was at a funeral. It was not the place to engage in a fulsome discussion. The words neither affirm nor cavil with the suggestion of redundancy. They are just consistent with Mr Frawley wanting to get off the phone and get on with mourning his friend whose funeral he was attending.
136 Mr Buchan’s uncontested evidence was that after the Kinky Lizard Café meeting, and before he called Mr Frawley on 29 July 2022, he had called the leadership team together and met with them at the Union office. The Union president Mr Robert Benkesser, and the assistant secretaries, Mr Upton and Mr Smart attended the meeting. Mr Buchan told them he had met with Mr Frawley; he had accepted Mr Frawley’s resignation and he sought the meeting’s approval to structure the termination as a redundancy in order to assist Mr Frawley. His uncontested evidence was that there was unanimous agreement with this proposal. No one said anything to contradict anything Mr Buchan had said.
137 Mr Upton corroborated Mr Buchan’s evidence about this meeting.
138 This is significant for two reasons.
139 First, it is conduct by Mr Buchan, shortly after the meeting with Mr Frawley, that is consistent with his version of what was discussed and agreed upon in the Kinky Lizard Café meeting.
140 Second, Mr Smart was present at the meeting. The fact that Mr Smart did not object to Mr Buchan’s proposal or his account of Mr Frawley resigning is inconsistent with Mr Frawley’s suggestions that Mr Smart had talked him out of resigning, or had some knowledge that Mr Frawley in fact, wanted to continue to work at the Union.
141 Accordingly, I find that during the Kinky Lizard Café meeting, Mr Frawley accepted that he had initiated the termination of his employment (and necessarily also the vacation of his elected office) by telling several people he had quit on 26 July 2022. He agreed to allow Mr Buchan to do what he could to ensure the employment ended in a way that was most financially beneficial to him in these circumstances. That is, he agreed to end the employment by substituting a mutual termination on terms that were financially favourable compared with him simply having resigned.
142 As a result, Mr Frawley’s submissions, in the alternative, that the Union could not act on Mr Frawley’s resignation without it creating a dismissal by the Union, take him nowhere. In this regard, Mr Frawley submitted that:
(a) any resignation could not be legally effective because Mr Frawley did specify any notice period; Mr Frawley relied in this regard on principles derived from Hughes v Gwynedd Area Health Authority [1978] ICR 161 at 164 and Grout v Gunnedah Shire Council (1994) 125 ALR 355; (1994) 1 IRCR 143 at 365 to the effect that inadequate notice may not terminate a contract of employment, but may constitute a repudiation which can be accepted;
(b) the Rules require an elected official to resign with 4 weeks’ written notice. In the absence of written notice, a reasonable employer would seek to clarify the resignation; and
(c) there were special circumstances, namely Mr Frawley’s emotional state, which meant the employer was not entitled to accept the resignation, without clarifying it or confirming it. Accordingly, acceptance of the resignation in these circumstances amounted to dismissal by the Union. Mr Frawley relied in this regard on principles in Barclay v City of Glasgow District Council [1983] IRLR 313 at [12] and [14]; KwikFit (GB) Ltd v Lineham [1992] ICR 183; Minato v Palmer Corporation Ltd (1995) 63 IR 357 at 362363 and Achal v Electrolux Pty Ltd (1993) 50 IR 236.
143 Mr Frawley did not resign in writing. Nor did he give notice.
144 I accept he was angry and upset when he resigned to Mr Upton. I do not need to consider whether or not he was justified in being angry and upset, either by reference to what happened on 26 July 2022 or by reference to a variety of issues he raised about how he was treated in the lead up to 26 July 2022.
145 These alternative arguments do not assist Mr Frawley, because the Union did not act on his resignation.
146 His resignation was superseded by a mutual agreement.
147 The Union waited until after Mr Buchan to hold discussions with Mr Frawley. The Union, through Mr Buchan, made enquiries of Mr Frawley about the circumstances of the resignation, when Mr Buchan met with Mr Frawley on 29 July 2022.
148 Those enquiries resulted in an agreement, the effect of which was that the employment would end.
149 This puts the case in the category of a ‘mutual determination’ as that phrase was used in Watts. Mutual determination was described by the New South Wales Industrial Relations Commission in Allison v Bega Valley Council [1995] NSWIRComm 175; (1995) 63 IR 68 at [73]. The New South Wales Commission was determining whether there had been a dismissal at the initiative of the employer. The New South Wales Commission said:
In order to undertake the necessary analysis it is necessary to look carefully at all the relevant facts. It is necessary to determine whether the actual determination was effectively initiated by the employer or by the employee particularly where the dynamics within a factual situation may change. For example, an employer may demand a resignation with a threat of dismissal, negotiations may then ensue and the employee may ultimately be genuinely pleased with the outcome of those negotiations to the extent that any resultant resignation may be said to be given freely and without any undue influence being brought to bear by the employer.
The Redundancy Letter
150 On 1 August 2022, at 6.36 am, Mr Buchan sent Mr Frawley a text message with an estimate of his final pay. Mr Buchan then sent Mr Frawley a list of items to be returned, and times that Mr Buchan would be in the office.
151 Mr Frawley responded, ‘will see you then mate’. He then went to the Union office to return his right of entry permits and other union property.
152 Mr Buchan gave Mr Frawley a letter dated 2 August 2022. It said it was ‘…to confirm the outcome of our meeting on 29 July 2022…’ and stated that ‘After consultation…’ his employment ended with effect on 29 July 2022 by reason of redundancy.
153 On the same day, Mr Frawley was paid his final pay which included pay for a 4week notice period.
154 There is no suggestion that Mr Frawley challenged the redundancy letter in any way, until over two months later, when, on 6 October 2022, Mr Frawley sent an email to Mr Buchan. The email made the following assertions:
(a) That it was ‘[a]n implied term of [my contract] that the employment was concurrent with the holding of the office to which I was elected’.
(b) That the only ways the employment could be ended, under the rules and therefore the contract, were:
(i) Losing an election
(ii) All of the offices of the Union being vacated upon the appointment of an administrator to manage its affairs
(iii) Being removed from office under Rule 11; and
(iv) Resignation.
(c) The letter of 2 August 2022 advising that the employment ended by reason of redundancy was inconsistent with the Rules. In this regard, it says:
Instead the CFMEU advised me by email on 02 August 2022 that “the purpose of this letter is to confirm the outcome of our meeting of 29 July 2022 and what this means for you. After consultation, your employment ended with effect on 29 July 2022 by reason of redundancy. This decision is not a reflection on your performance”. (original emphasis)
155 There are 2 remarkable things about this correspondence.
156 First, the delay between the date of termination and the date it was sent, particularly given Mr Frawley’s background in unionism and, his experience in dealing with members and, as he said, ‘fixing disputes’ and ‘fixing issues’ like subcontractors not being paid.
157 Second, the email says nothing about the circumstances leading to the issue of the 2 August 2022 letter. In particular, it does not refer to Mr Frawley’s meeting with Mr Buchan of 29 July 2022 (other than repeating what the letter itself said).
158 It is telling that the email does not allege, for instance, that the 2 August letter did not confirm the outcome of the 29 July 2022 meeting, or that the outcome of the meeting was something different to what the redundancy letter represented. Had Mr Frawley truly been surprised by Mr Buchan’s call telling him that a redundancy had been authorised, had he actually believed that the 29 July 2022 meeting was resolved on the basis that Mr Buchan was going to take care of things in a way that he could continue working, then surely, he would have said so in this email if not before.
159 These fortify my earlier conclusion that Mr Frawley’s version of the 29 July 2022 meeting should not be accepted, and my conclusion that, in truth, Mr Frawley agreed to end his employment on terms that were financially favourable to him, compared to him simply resigning.
160 His agreement was not forced. It was given in a friendly, informal meeting which he had requested, at a location away from the office as he had requested. It was not given in the heat of the moment. It was not tainted by threats or pressure. It was free and autonomous.
161 In short, termination was the result of a mutual agreement to substitute Mr Frawley’s resignation from his employment with an agreed termination which would be called and treated as a redundancy.
162 Throughout the process, no one expressly or directly addressed what would happen in relation to the elected office Mr Frawley held. His reference to quitting must be understood to be both resignation from employment and resignation from office, because his employment was coterminous with the holding of the office. Although not said by anyone, the effect of the agreement that was reached, was that the Union waived any requirement for Mr Frawley to vacate the elected position by written notice of resignation. This created a casual vacancy as contemplated by rule 38(cc).
Is the redundancy letter proof of a termination at the Union’s initiative even if Mr Frawley agreed to it?
163 Mr Frawley said the Commission should not go behind the redundancy letter, but should accept the redundancy letter as evidence that the Union unilaterally terminated the employment for the reason of redundancy. He said that even if it is found he agreed to accept a redundancy, that agreement could not change the termination as being at the initiative of the employer. He relied upon a decision of DP Colman of the Fair Work Commission in Jennings v The Trustee for Alsop Gordon & Best Unit Trust t/a AGB Training [2019] FWC 638.
164 Jennings is distinguishable. In that case, the employer initiated a meeting with Ms Jennings and discussed with her an organisational restructure. The employer offered her an alternative position, on lower pay, telling her that if she did not accept that offer, her position was being made redundant and her employment would terminate. Several meetings followed this initial meeting, culminating in Ms Jennings refusing the offer of an alternative role, which the employer treated as her accepting a redundancy and then proceeded to terminate the employment accordingly. The Commission rejected the employer’s argument that Ms Jennings had agreed to a redundancy and was not, in these circumstances dismissed.
165 The Deputy President said at [29]:
…It was the actions of the employer in deciding that it no longer needed Ms Jennings’ role that brought the employment relationship to an end….Offering Ms Jennings a choice between redundancy and an alternative role of this kind brought the employment relationship to an end. It was, to use the formation of the Court in Mohazab, the principal contributing factor which led to the termination of the employment relationship.
166 The same cannot be said in this case. It was not the Union’s decision to make Mr Frawley’s position redundant that was the principal contributing factor leading to termination. Rather it was Mr Frawley’s resignation, followed by an agreement to substitute the resignation with a mutual termination, and call it a redundancy.
Can termination by mutual agreement be termination at the Union’s initiative?
167 Early in these proceedings, Mr Frawley put forward an alternative case, that if he was found to have resigned, he did so because the Union’s conduct left him with no choice. He relied on the ‘constructive dismissal’ or forced resignation line of cases following Western Excavating (EEC) Ltd v Sharp [1978] 1 All ER 713; [1978] ICR 221.
168 In closing, Mr Frawley’s agent conceded that the Union’s conduct in the lead up to 26 July 2022 was not repudiatory, which I understood to mean Mr Frawley was no longer pressing the alternative case. Mr Frawley relied on the prior conduct only to explain his emotional state and why his resignation ought not to have been immediately acted upon.
169 Mr Frawley’s concession was properly made. The established principles relating to ‘constructive dismissal’ do not extend to circumstances in which an employee is willing and content to resign on terms that have been negotiated and which are satisfactory to the employee: Fair Work Ombudsman v Austrend International Pty Ltd [2018] FCA 171; (2018) 273 IR 439 at [27][30].
170 It is therefore unnecessary for me to decide whether or not Mr Frawley proved the prior conduct he was relying on for his alternative, constructive dismissal case.
171 In case I am wrong in concluding that Mr Frawley was not dismissed, I will address the remaining issues which the parties argued.
Was the CFMEUW Mr Frawley’s employer as well as the CFMMEU?
172 Both parties agree that the CFMMEU was Mr Frawley’s employer.
173 Mr Frawley says, that the CFMEUW was also Mr Frawley’s employer jointly or concurrently with the CFMMEU. Mr Frawley relied on passages of Quirk in which his Honour Perram J ultimately treated the State and federal registered organisations as being joint employers. His Honour noted at [7] that although the State registered union initially strongly resisted the contention that there was joint employment ‘…by the end of the trial it become apparent that both sides agreed…’ that the employees were jointly employed by the federal union and the State union. His Honour considered that position to be consistent with the evidence: [9].
174 The CFMEUW’s Rules provide that each office in the CFMEUW may be held by the person who holds the corresponding office in the CFMMEU’s Construction and General Division, Western Australian Divisional Branch: rule 16(4A). A s 71 Certificate was issued to the CFMEUW, which gives effect to that rule.
175 The CFMEUW’s Rules require that elected organisers be paid a salary: rule 16(4). In other words, that the organiser be employed.
176 The evidence was that the vast majority, if not all, of Mr Frawley’s duties involved organising on sites where federally registered agreements were in place, and therefore, rights of entry granted to him as an organiser for the CFMMEU were being exercised.
177 Mr Frawley’s payslips were issued in the name of the CFMMEU.
178 However, it was also clear that Mr Frawley additionally exercised his rights as an authorised representative of the CFMEUW, in particular, on the occasions when he attended sites to conduct safety inspections under s 49I of the Act. He did so in that capacity, even if those sites had federal agreements in place, and the members were national system employees.
179 I am therefore inclined to the view that the CFMEUW also employed Mr Frawley.
Can the Union make an organiser’s elected position redundant during the term of office?
180 The Union says that if Mr Frawley has been denied a contractual benefit, his damages should be assessed on the basis that his employment would have terminated on 14 October 2022 in any event, because the organiser position he held was abolished on that date.
181 It was an agreed fact that on 14 October 2022, a Committee of Management and Executive Meeting of the CFMMEU’s Construction and General Division, WA Branch, passed a resolution to reduce the number of elected Divisional Branch organisers from five to three.
182 Immediately afterwards, a Committee of Management and Executive Meeting of the CFMEUW passed an identical resolution.
183 Mr Frawley says these resolutions were not valid to the extent that they purported to abolish elected positions during their term.
184 I agree with Mr Frawley.
185 The CFMMEU’s Rule 37(iv) provides:
Without affecting the term of office of persons holding office as Divisional Branch Officers immediately prior to the date of certification of this subrule, the officers of the Western Australia Divisional Branch shall, on and from 2 January, 2001, or the declaration of the election in 2000, whichever is the later, consist of the Divisional Branch President, the Divisional Branch Senior Vice President, the Divisional Branch Vice President, the Divisional Branch Secretary, two (2) Divisional Branch Assistant Secretaries, three (3) Divisional Branch Trustees, the Divisional Branch Treasurer and Divisional Branch Management Committee members, together with such number of Organisers as the Divisional Branch Management Committee from time to time determines. (emphasis added)
186 Other subclauses listing the offices of other Divisional Branches also provide for the office to include such organisers as relevant councils or management committees ‘from time to time determine’: see rule 37(i) or ‘as may be decided’: see rule 37(v).
187 Rule 37 immediately precedes rule 38, dealing with the conduct of elections. The two rules work together. Rule 37 describes the offices of each Divisional Branch, and rule 38 describes how those offices are to be filled by the conduct of an election.
188 So, when the rules permit the management committee to determine the number of organiser positions ‘from time to time’, this is to decide the structure of the Divisional Branch, and also to set the number of positions to be filled at the next election, and enable the election accordingly.
189 The Union argued that the rule should be read as enabling the Union to manage the number of organisers in response to a variety of situations that could arise in the management of the Union, such as organiser resignations, organisers losing their licence or the need to make positions redundant.
190 I am not persuaded this supports the Union’s construction.
191 First, the Union can employ organisers that are not elected organisers. Mr Frawley was employed as an organiser before he took on an elected position. The Management Committee can fix the number of elected organiser positions, prior to an election, to ensure that it has a mix of elected and unelected organisers in such proportions as will provide it with some degree of staffing flexibility.
192 Second, the CFMMEU rules provide that if a casual vacancy occurs in any office as a result of death, resignation, retirement, dismissal or for any other reason, such vacancy may be filled by appointment by the Divisional Branch Management Committee, provided the unexpired part of the term does not exceed 12 months, or three quarters of the term of office, whichever is greater: rule 38(cc). Only if the unexpired part exceeds both these periods, is an election mandated. For a 4year term, the requirement for an election would only arise if the unexpired part of the term is at least three years.
193 An organiser’s resignation or dismissal, therefore, does not necessitate a change to the number of organiser positions. If the management committee does not want to refill the vacancy, it has the discretion not to, provided the unexpired part of the term is less than three years.
194 On the other hand, if the rule was understood as allowing the management committee to reduce the number of organiser positions during a term of office, this would create undesirable outcomes that are unlikely to have been the intention of the rules.
195 For instance, if the management committee were to reduce the number of organiser positions after an election, there is no mechanism in the rules to determine which organiser or organisers will cease to hold office unless the number of organisers was reduced to nil.
196 Also, the management committee could effectively undermine the democratic process by removing organiser positions if it was dissatisfied with the outcome of the election. The democratic process contemplated by the rules is that members are able to have a say via the elections about who the organisers will be. The clear intent of the rules is for members to be able to influence who the Union employs to do the work of organisers.
197 The reference to the words ‘from time to time’ in rule 37 allows the Management Committee to determine the number of organisers from one election to another. It means the Divisional Branch structure can change from election to election. It does not permit the structure to change within a term of office.
198 Accordingly, the purported resolution did not have the effect of making the organiser position redundant prior to the expiry of the term. It need not be taken into account in assessing damages.
Has Mr Frawley failed to mitigate his loss?
199 The monetary remedy for a denied contractual benefit of the fixed term of an employment contract is common law damages. Common law damages are intended to place the innocent party in the same situation as if the contract had been performed.
200 Damages are therefore assessed by reference to the remuneration and other benefits which would have been paid to, or received by, the employee from the date of dismissal to the end of the fixed term, subject to reductions for any financial benefits actually received and which the employee, acting reasonably, should have received within the remaining contractual period, and other contingencies: The St Cecilia’s College School Board v Grigson [2006] WAIRC 05293; (2006) 86 WAIG 3146 at [100].
201 The Union says that I should find that Mr Frawley failed to mitigate his loss because he could have taken up a higher paying job using his skills as a carpenter, but chose not to do so.
202 From January 2021 until the end of his employment with the Union, Mr Frawley was paid a salary of $2,425.83 gross per week for his fulltime position.
203 Sometime after 2 August 2022, and before October 2022, Mr Frawley started working for a friend at Garden Island in a safety role, but that work lasted for only a day. Mr Frawley was then out of work until October. He took a holiday with his wife during that time.
204 He got a job as a rigger with Rigsafe starting on 24 October 2022 earning $33 per hour plus overtime, travel and other allowances. He obtained this work by directly approaching an acquaintance in his football club who was a director of the business. From then until January 2023, he was earning between $957.20 to $1913 gross per week, depending on his hours and work arrangements.
205 In January 2023, Mr Frawley moved into his current position with Rigsafe as a HSE Operations Advisor on an annual salary of $101,000 or $1,942.30 gross per week. This is $483 a week less than his pay with the Union.
206 The Union has the onus of establishing Mr Frawley has failed to mitigate his loss: Rizhao Steel Holding Group Co Ltd v Koolan Ire Ore Pty Ltd [No 2] [2010] WASC 385 at [76][77]. The standard of reasonableness in the mitigatory principle is not an exacting one: [77].
207 The Union did not demonstrate that work was available to Mr Frawley any sooner, or that work was available at higher rates of pay. There is nothing unusual about there being a gap in time between jobs. Job searching takes time. Recruitment processes take time.
208 Nor is there anything unreasonable about Mr Frawley getting his foot in the door with a business at a lower rate of pay, while looking to progress to a better paying position.
209 I would not make any reduction of damages for failure to mitigate.
How should the ReddiFund payment be treated in assessing damages?
210 Mr Frawley’s payslips show that each pay period an amount was paid in addition to salary for ‘Reddifund Redundancy Contribution’. The amount was not paid to Mr Frawley, rather it was paid to a third party, who the parties referred to as ‘ReddiFund’.
211 It was an agreed fact that Mr Frawley received $21,270 gross for redundancy pay from ReddiFund upon or following the end of his employment.
212 ReddiFund was described by Mr Frawley as a scheme whereby the regular weekly employer contributions accumulate and are held for the employee, and then when the employee is made redundant, they can collect that balance. He said, ‘it can stay in there as long as you want it to’.
213 Mr Buchan confirmed that if Mr Frawley had not claimed the ReddiFund amount when the employment with the Union ended, those amounts would have remained in the ReddiFund account, to Mr Frawley’s balance, and he would have received it eventually when being made redundant from another job.
214 The damages award is designed to place an employee in the position they would have been in if the contract had been performed. The question, then, is had the contract been performed, would Mr Frawley have received the ReddiFund payment in any event? If not, it should be deducted in the assessment of damages.
215 Neither party provided me with evidence of ReddiFund’s scheme terms, demonstrating the conditions that needed to be satisfied for a person to access an account balance. Nor was there any evidence of the incidence of redundancy in the construction industry.
216 I take it that the fund is not available in circumstances where a person is dismissed for misconduct, or resigns.
217 The best I can make from the evidence is that there was a possibility that Mr Frawley would have received the ReddiFund monies at some point in time in the future if his employment ended by redundancy. It seems there was not, however, a guarantee that Mr Frawley would have been made redundant and so receive the funds. Nor is it certain when he would have received the funds.
218 Had the contract been performed, Mr Frawley would have seen through the elected term. There is no suggestion that he would have received the ReddiFund amount at the expiry of the elected term if he did not contest, or lost, a future election. In these circumstances, it is appropriate to deduct the ReddiFund amount in calculating Mr Frawley’s damages. To do otherwise, would put Mr Frawley in a better position than if the contract had been performed.
219 Mr Frawley provided me with a schedule setting out the income he would have received had he continued in employment, and the income he has received since the employment ended. It calculates his damages, if the ReddiFund amount is deducted, as $105,880.57. This figure includes superannuation, annual leave and long service leave accruals. It also includes $11,049 income described as ‘Red[d]iFund’. That is, it assumes that Mr Frawley would have received future ReddiFund contributions as well. The ReddiFund contributions are not amounts paid to or received by Mr Frawley. Accordingly, this amount should also be deducted from his calculations.
220 Accordingly, had Mr Frawley succeeded in showing he had been denied a contractual benefit, I would have assessed his damages in the sum of $94,831.57.
Conclusion and Orders
221 The claim will be dismissed.