Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd

• Jurisdiction: Australia Federal only
• Judge: French CJ,Kiefel J.,Hayne J.,Crennan J.,Gageler J.
• Judgment Date: 16 October 2014
• Neutral Citation: [2014] HCA 41
• Court: High Court
• Docket Number: B23/2014
• Date: 16 October 2014

[2014] HCA 41

HIGH COURT OF AUSTRALIA

French CJ, Hayne, Crennan, Kiefel and Gageler JJ

B23/2014

Construction, Forestry, Mining and Energy Union

Appellant

and

BHP Coal Pty Ltd

Respondent

Representation

H Borenstein QC with C M Howell for the appellant (instructed by Hall Payne Lawyers)

B W Walker SC with I M Neil SC and R P P Dalton for the respondent (instructed by Ashurst Australia)

Fair Work Act 2009 (Cth), ss 346(b), 347(b)(iii), 347(b)(v), 360, 361.

Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd

Industrial law (Cth) — General protections — Adverse action — Section 346(b) of Fair Work Act 2009 (Cth) prohibits employer from taking adverse action against employee because employee engages in industrial activity or has engaged in industrial activity — Where appellant was industrial association — Where member of appellant engaged in industrial activity — Where officer of respondent employer took adverse action against member — Where officer gave evidence at trial that adverse action not taken for prohibited reasons — Whether adverse action taken for prohibited reason.

Words and phrases — ‘because’, ‘engages in industrial activity’, ‘prohibited reason’.

ORDER

Appeal dismissed.

1 French CJ and Kiefel J. This appeal concerns the termination of the employment of an employee of the respondent (‘BHP Coal’) at the Saraji Mine, and whether that termination was an action taken for a reason which is prohibited by the Fair Work Act 2009 (Cth) (‘the Act’).

2 The employee in question, Mr Doevendans, was a member of the appellant (‘the CFMEU’), an industrial association. Some months prior to the termination of his employment he had participated in a protest organised by the CFMEU, which was a lawful activity within the meaning of s 347(b)(iii) of the Act. In the course of that protest he held and waved a sign at passing motorists, which had been supplied by the CFMEU, and which read ‘No principles SCABS No guts’.

3 The general manager of the Saraji Mine, Mr Brick, gave evidence before the Federal Court of Australia as to why Mr Doevendans' employment had been terminated. The primary judge in the Federal Court, Jessup J, detailed this evidence in his reasons. His Honour then made findings, under the heading ‘The Reasons for Mr Doevendans' Dismissal’. His Honour accepted the reasons given by Mr Brick for his action 1. Those reasons may be summarised as follows: the word ‘scab’, which appeared on the sign Mr Doevendans held up and waved, was inappropriate, offensive, humiliating, harassing, intimidating, and flagrantly in violation of BHP Coal's workplace conduct policy (that policy required courtesy and respect to be accorded to fellow employees); Mr Doevendans was well aware of the policy; Mr Doevendans demonstrated arrogance when confronted with the objections to his conduct; and Mr Brick regarded the conduct as not only contrary to the policy, but antagonistic to the culture that Mr Brick was endeavouring to develop at the mine. His Honour added 2 that the decision to terminate Mr Doevendans' employment was ‘not a spur-of-the-moment reaction’, but one arrived at by Mr Brick over time and after a systematic consideration of the facts.

4 His Honour did not find that the mere fact that Mr Doevendans had held and waved the sign was one of Mr Brick's reasons for terminating the employment. Mr Brick's reasons had to do with the nature of Mr Doevendans' conduct. His Honour accepted Mr Brick's evidence that the fact that

Mr Doevendans occupied certain positions within the CFMEU, and had engaged in industrial activity, did not play any part in Mr Brick's decision 3.

5 Section 346(b) appears in Pt 3-1 of Ch 3 of the Act. It prohibits a person taking ‘adverse action’ against another person ‘because’ the other person has engaged in industrial activity within the meaning of s 347(a) or (b). ‘Adverse action’ includes dismissal (s 342(1), Item (1)(a)). Section 347(b) relevantly provides that a person ‘engages in industrial activity’ if the person: (iii) participates in a lawful activity organised by an industrial association; or (v) represents or advances the views or interests of an industrial association.

6 Section 34directs attention to the reason why a person — here Mr Brick — took the adverse action. If there were multiple reasons, s 360 provides that ‘a person takes action for a particular reason if the reasons for the action include that reason.’ Section 361 provides that if it is alleged that a person took action for a particular reason, being a prohibited reason, it is presumed that the action was taken for that reason unless the person proves otherwise. Section 361 therefore places the onus on BHP Coal to prove that a reason for the adverse action was not one of the two prohibited reasons in s 347(b)(iii) and (v). Central to the operation of s 361 is a balance between employers and employees determined by the legislature 4.

7 The focus of the enquiry as to whether s 346(b) has been contravened is upon the reasons for Mr Brick taking the adverse action 5. This is evident from the word ‘because’ in s 346, and from the terms of s 361. The enquiry involves a search for the reasoning actually employed by Mr Brick 6. The determination to be made by the court is one of fact, taking account of all the facts and circumstances of the case and available inferences 7.

8 In Board of Bendigo Regional Institute of Technical and Further Education v Barclay [No 1]8, French CJ and Crennan J observed that it would ordinarily be difficult for an employer who has taken adverse action to discharge the onus of proof in s 361 without calling direct evidence from the decision-maker as to his or her reasons. The court is not obliged to accept such evidence. It may be unreliable for a number of reasons. For example, other objective evidence may contradict it.

9 However, s 346 does not involve an objective test. In Bendigo, Gummow and Hayne JJ explained 9 that it is misleading to use the terms ‘objective’ or ‘subjective’ to describe the enquiry in s 346. To speak of objectively ascertained reasons risks the substitution by the court of its own view, rather than making a finding of fact as to the true reason of the decision-maker.

10 None of the reasons given by Mr Brick, and accepted by the primary judge as true in fact, was a reason prohibited by s 346(b). Mr Brick did not dismiss Mr Doevendans because he participated in the lawful activity of a protest organised by the CFMEU (s 347(b)(iii)), nor did he dismiss Mr Doevendans because, in carrying and waving the sign, Mr Doevendans was representing or advancing the views or interests of the CFMEU (s 347(b)(v)), as the CFMEU alleged. Mr Brick's reasons related to the content of Mr Doevendans' communications with his fellow employees, the way in which he made those communications and what that conveyed about him as an employee. Mr Brick's reasons included his concern that Mr Doevendans could not or would not comply with the standards of behaviour which Mr Brick was attempting to instil in employees at the mine.

11 The CFMEU submitted before the primary judge that it was to be inferred that Mr Brick was in fact motivated by these prohibited reasons rather than the reasons he gave. His Honour rejected 10 the submission.

12 Despite the findings referred to above, the primary judge concluded that s 346(b) had been contravened in two respects. His Honour held that Mr Doevendans' conduct in holding and waving the sign was, for the purposes of

s 347(b)(iii), conduct by way of participation in a lawful activity organised by an industrial association. His Honour said 11:

‘Since a reason for his dismissal was that he did so hold and wave the sign, it follows that his dismissal was done in contravention of s 346(b)’.

His Honour also determined that holding and waving the sign could be characterised as representing or advancing the views and interests of an industrial association, for the purposes of s 347(b)(v) 12. His Honour again concluded 13:

‘Since he was dismissed for that conduct, it follows that the dismissal was done in contravention of s 346(b)’.

13 In the Full Court, Dowsett and Flick JJ considered that these conclusions were not based on the factual enquiry as to the reasons for the adverse action required by s 346(b), and which Bendigo confirmed as the correct enquiry 14. Dowsett J also expressed the view 15 that the primary judge's finding that the employee's engagement in industrial activity played no part in Mr Brick's decision-making process disposed of the matter.

14 Kenny J agreed that the primary judge was in error in considering that Mr Doevendans was dismissed because he participated in a lawful activity organised by the CFMEU 16. Her Honour pointed out 17 that this Court in Bendigo

rejected the proposition that an employer must establish that the reasons for the adverse action were entirely dissociated from the employee's union activities, in order to discharge the onus of proof. Her Honour added that an employee's activity is not insulated from adverse action by an employer because it happens to be done in the course of an otherwise lawful industrial activity.

15 Kenny J did not, however, consider that the primary judge was in error in concluding that Mr Doevendans was dismissed for representing or advancing the views or interests of the CFMEU, which was the second alleged ground for the contravention of s 346(b) 18. The difficulty with this conclusion is that the primary judge's reasoning with respect to each of the two alleged grounds for contravention proceeded from the same premise. That is, it is a necessary inference from his Honour's reasons that, if the adverse action (the termination of employment) was connected to an industrial activity, it must be taken to be a reason for the adverse action. That reasoning is...