Arend v Construction Forestry Maritime Employees Union [2025] FedCFamC2G 1646

1. General protections contained in the FW Act are designed to safeguard employees from being subject to adverse action for exercising a workplace right or because of a protected attribute.
2. If an employee claims that adverse action was taken against them because they exercised a workplace right or because of a protected attribute, the employer must prove to the court on the balance of probabilities that this was not the reason for their decision to undertake the adverse action.[25] This is known as the reverse onus of proof.[26]
3. In Australian Building and Construction Commissioner v Hall,[27] the Full Court stated:[28]

Stated compendiously, s 361(1) places an onus or burden on a person involved in a proceeding relating to a contravention of Part 3-1 of the FWA to "prove otherwise" than that he or she took the contravening action for the particular reason, or with the particular intent, alleged in the applicant's application. The consequence of a failure to discharge this burden is that it is presumed against the person concerned that the contravening action was taken for that particular reason or with that particular intent. Before this presumption operates, however, two pre-conditions must be met. First, under s 361(1)(a) the particular reason or the particular intent for the contravening action must be alleged in the application. It is with respect to that alleged reason or that alleged intent that the person concerned must prove otherwise. The word "particular" in s 361(1)(a) must be given its ordinary and natural meaning. Relevantly, that is: "2. being a definite one, individual, or single, or considered separately: each particular item. 3. distinguished or different from others or from the ordinary; noteworthy; marked; unusual. ... 6. dealing with or giving details, as an account, description, etc., of a person; detailed; minute; circumstantial". See Susan Butler (ed), Macquarie Dictionary (Pan Macmillan, 7th ed, 2017) vol 2, 1096.

It follows that an allegation under s 361(1)(a) must precisely and distinctly identify the alleged reason, or the alleged intent, for the contravening conduct. This need for care and precision in making the allegations in connection with which the presumption may operate is similar to that required with respect to the analogous situation of averments in criminal prosecutions (see Gallagher v Cendak [1988] VicRp 70; [1988] VR 731 at 738-739 (Vincent J) and JD Heydon_, Cross on Evidence_ (LexisNexis Butterworths, 11th ed, 2017) at [7105]). In Part 3-1 of the FWA, it is also heightened by the provisions of s 360. That section, when read with s 361(1)(a), requires a person who is alleged to have taken a contravening action to establish that the particular reason for which it is alleged that person took that action is not included among any of the reasons for which he or she took that action. It is important to note that, in contrast to s 361, s 360 only applies to a "particular reason" and it does not extend to a "particular intent", both of which are covered by s 361. Section 360 therefore only applies to the "particular reason" component of s 361.

...

[W]e consider that an applicant wishing to take advantage of the presumption in s 361, in addition to making the allegation in a form that meets the requirements of s 361(1)(a), must provide sufficient information about the action, and the related reason or intent (or both) for which that action was taken, to show that, in combination, they would constitute a contravention of a provision of Pt 3-1 of the FWA. This means that, in a proceeding such as the present one, which was conducted on pleadings, an applicant is required to plead in his or her statement of claim all the material facts concerning the contraventions alleged against the respondent. As French J said in Kernel Holdings Pty Ltd v Rothmans of Pall Mall (Australia) Pty Ltd [1991] FCA 557; (1991) 217 ALR 171 at 173, "[a] material fact is one which is necessary to formulate a complete cause of action. ... Material facts must be pleaded with the degree of specificity necessary to define the issues and inform the parties in advance of the case they have to meet."

(Emphasis added)

1. In Board of Bendigo Regional Institute of Technical and Further Education v Barclay & Anor,[29] Gummow and Hayne JJ stated:

In light of the legislative history of s 346 and the intention of Parliament outlined above, the reasoning of Mason J in Bowling is to be applied to s 346. An employer contravenes s 346 if it can be said that engagement by the employee in an industrial activity comprised "a substantial and operative" reason, or reasons including the reason, for the employer's action and that this action constitutes an "adverse action" within the meaning of s 342.

(Emphasis added)

Meaning of workplace right

1. A person has a workplace right if the person:
   1. is entitled to the benefit of, or has a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body; or
   2. is able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument; or
   3. is able to make a complaint or inquiry:
      1. to a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrument; or
      2. if the person is an employee--in relation to his or her employment.

1. In Shea v TRUenergy Services Pty Ltd (No 6),[30] (Shea) Dodds-Streeton J stated:

...the requirement that the complaint be one that the employee "is able to make" in relation to his or her employment suggests that there are complaints which the employee is not able to make in relation to his or her employment. The ability to make a complaint does not arise simply because the complainant is an employee of the employer. Rather, it must be underpinned by an entitlement or right. The source of such entitlement would include, even if it is not limited to, an instrument, such as a contract of employment, award or legislation.

1. In Cigarette & Gift Warehouse Pty Ltd v Whelan,[31] the Full Court of the Federal Court endorse the following statement of the trial Judge, Collier J:

Section 341(c)(ii) defines a workplace right in an employee as being the entitlement of the employee to make a complaint or inquiry in relation to his employment. In such cases as Shea v TRUenergy Services Pty Ltd (No 6) [2014] FCA 271; (2014) 242 IR 1 (Shea), Murrihy v Belezy.com.au Pty Ltd [2013] FCA 908; 238 IR 307; and Walsh v Greater Metropolitan Cemeteries Trust (No 2) [2014] FCA 456; 243 IR 468 (Walsh), s 341(c)(ii) was interpreted broadly. In Walsh [41], Bromberg J observed that the requirement in s 341(c)(ii) that a complaint or inquiry by the employee be "in relation to" his employment means that there must be a relationship between the subject matter of the complaint and the complainant's employment. As Dodds-Streeton J further observed in Shea, a complaint that an employee is able to make in relation to his or her employment is not at large, but must be founded on a source of entitlement, whether instrumental or otherwise.

1. In Alam v National Australia Bank Limited,[32] (Alam) the Full Court of the Federal Court considered when an employee "is able to make a complaint or inquiry - in relation to his or her employment" and stated:[33]

It is evident that, in applying the approach of Dodds Streeton J in Shea v TRUenergy, Collier J proceeded on the basis that a complaint or inquiry to an employer about an entitlement for which the contract of employment makes provision is within the scope of s 341(1)(c)(ii). Her Honour did not proceed on the basis that either s 341(1)(c) or Shea v TRUenergy required that the right or entitlement to make a complaint or inquiry be itself found in the contract of employment: it is sufficient if the complaint or inquiry relates to a subject matter for which the contract of employment makes provision. It is also to be noted that Collier J did not purport to state exhaustively the kinds of complaints or inquiries which would be within, and without, s 341(1)(c).

1. In Messenger v Commonwealth of Australia (Represented by the Department of Finance),[34] Snaden J stated:

...Section 341 does not invest employees with new rights. It merely characterises existing rights or entitlements as "workplace rights", the possession or exercise of which is the subject of protections located elsewhere in pt 3-1 of the FW Act.

...successive full courts have now made clear [that] in order that a complaint or inquiry made in relation to employment might qualify as the exercise of a workplace right, an employee must first demonstrate that it was made in the exercise of, or otherwise to protect or vindicate, some right or entitlement conferred upon them, whether instrumentally or otherwise. It is not sufficient that a complaint or inquiry is made simply because the employee feels (with good justification or otherwise) that he or she has something about which to complain or inquire.

1. In Serpanos v Commonwealth of Australia,[35] (Serpanos) Snaden J stated:

Whether a complaint made by an employee qualifies as one made "in relation to his or her employment" depends upon the subject matter about which the complaint is made. In order so to qualify, a complaint must be about a subject, circumstance, issue or thing that arises by reason of the complainant's employment.

1. In Qantas Airways Ltd v Transport Workers' Union of Australia,[36] Kiefel CJ, Gageler, Gleeson and Jagot JJ stated by way of obiter:

The words "is able to" in s 341(1)(b) and (c), while not words of limitation, necessarily indicate that circumstances have come into existence in which the person has a present capacity to exercise a relevant power or freedom. These powers and freedoms are specifically identified in s 341(1)(b) (read with s 341(2)) and in s 341(1)(c).

1. In short, for s 341(1)(c)(ii) of the FW Act to apply:

(a) the applicant must establish an ability to make a complaint or inquiry by demonstrating that the ability is founded on a source of entitlement (instrumental or otherwise);[37]

(b) the complaint or enquiry must be 'in relation to his or her employment' i.e. there must be a relationship between the subject matter of the employee's complaint or enquiry and the employee's employment;[38]

(c) it is not necessary that the right or entitlement to make a complaint or inquiry be found in the contract of employment, it is sufficient that it relates to a subject matter for which the contract of employment makes provision;[39] and

(d) the complaint or inquiry 'must be about a subject, circumstance, issue or thing that arises by reason of the complainant's employment'.[40]

Ms Van Arend repeatedly asked Mr Irving KC and complained about his comments published in the 60 Minutes program to the effect that alleged corruption at the CFMEU was far worse than she first thought (the Irving Complaint and/or Inquiry).

1. The further and better particulars of paragraph 9(b) are provided in the format of extracts from the transcript of a meeting between the Applicant and Mr Irving KC on 15 May 2025 (Meeting), concerning, amongst other matters, comments made by Mr Irving KC to Mr McKenzie in a 60 Minutes Program concerning alleged corruption at the CFMEU.
2. The Respondent's main complaints are:

(a) that material facts identifying the allegation of the exercise of a workplace right (namely the complaint) are not pleaded or particularised; and

(b) the Applicant does not establish that her alleged complaint or enquiry was in relation to her employment.

1. It appears to me that these two questions are interrelated. There needs to be a sufficient degree of specificity with respect to the identification of the complaint in order to determine whether the complaint is one made "in relation to employment". I agree with the Respondent's contention, that both of these questions are not sufficiently identified in the SOC so as to give the Respondent fair notice of the case it is required to meet.
2. The subject matter of the complaint in paragraph 9(b) of the SOC is not sufficiently identified. Paragraph 9(b) begins with the allegation that the Applicant asked Mr Irving KC and complained about his comments published in the 60 Minutes Program. Rather than identifying the complaint that was made, the words following "to the effect that" describe the 60 Minutes Program. The reader is given the gist of the 60 Minutes Program, but not the terms of the complaint or its connection to the Applicant's employment.
3. The Applicant contends that the terms of the complaint and its connection to the Applicant's employment are made clear by the particulars that were given of paragraph 9(b). Those particulars set out extracts from a transcript of the Meeting. During the Meeting, the Applicant made numerous comments, some of which might be characterised as complaints; for example, complaints about making "us" (presumably the CFMEU) "look as bad as possible" and complaints about making public comments without investigating, or without the allegations having been "proven". The comments made are open to multiple characterisations for the purposes of s 341(1)(c)(ii) of the FW Act.
4. In my opinion, precisely identifying (including characterising) the complaint(s) and identifying the connection to the Applicant's employment is fundamental to the Applicant's case under s 340(1)(a) of the FW Act. Those facts "must be pleaded with the degree of specificity necessary to define the issues and inform the parties in advance of the case they have to meet".[41]
5. The question of characterisation of the complaint in the present case is made more difficult by the nature and purpose of the CFMEU and the Applicant's role as an employee, that being an organiser and shop steward. A pleading that does not pay attention to the differences between each of these distinct aspects is liable to be confusing.
6. The necessity to precisely identify the complaint and the connection to the Applicant's employment is enhanced by two matters:

(a) first, where, as here, an applicant wishes to take advantage of the presumption in s 361 of the FW Act, "an applicant is required to plead in his or her statement of claim all the material facts concerning the contraventions alleged against the respondent"[42] which include ones necessary to formulate a complete cause of action; and

(b) second, the fact that the Applicant is seeking civil penalties.

1. Paragraph 9(b) of the SOC must be struck out on the basis that it "is likely to cause prejudice, embarrassment or delay in the proceeding" or "fails to disclose a reasonable cause of action or defence or other case appropriate to the nature of the pleading".
2. Striking out paragraph 9(b) of the SOC renders the pleadings in relation to Claims under Part 3-1 (General Protection) incomplete, and should be struck out on that basis. I shall strike out paragraphs 26 to 35 of the SOC on that basis.

Mr Irving KC engaged in the conduct pleaded in paragraph 8 to 21 above on behalf of the CFMEU within the scope of his actual or apparently authority.

By reason of the matters pleaded in paragraph 24, the conduct engaged in by Mr Irving KC pleaded in paragraphs 8 to 21 above was engaged in by the CFMEU by operation of s 793 of the FW Act.

Liability of bodies corporate

Conduct of a body corporate

1. Any conduct engaged in on behalf of a body corporate:

   1. by an officer, employee or agent (an official) of the body within the scope of his or her actual or apparent authority; or

   2. by any other person at the direction or with the consent or agreement (whether express or implied) of an official of the body, if the giving of the direction, consent or agreement is within the scope of the actual or apparent authority of the official;

is taken, for the purposes of this Act (subject to subsection (3A)) and the procedural rules, to have been engaged in also by the body.

State of mind of a body corporate

1. If, for the purposes of this Act (subject to subsection (3A)) or the procedural rules, it is necessary to establish the state of mind of a body corporate in relation to particular conduct, it is enough to show:

   1. that the conduct was engaged in by a person referred to in paragraph (1)(a) or (b); and

   2. that the person had that state of mind.

Meaning of state of mind

1. The state of mind of a person includes:

   1. the knowledge, intention, opinion, belief or purpose of the person; and

   2. the person's reasons for the intention, opinion, belief or purpose.

Exception - offence relating to failure to pay amounts

3A. Subsection (1) and (2) do not apply for the purposes of:

1. subsection 327A(1) (offence for failing to pay amounts as required); or

2. a related offence provision, to the extent that the related offence provision relates to an offence against subsection 327A(1).

Disapplication of Part 2.5 of the Criminal Code

1. Part 2.5 of Chapter 2 of the Criminal code does not apply to an offence against this Act, other than an offence against a provision referred to in paragraph (3A)(a) or (b) of this section.
2. In this section, employee has its ordinary meaning.

1. I am not convinced that the Applicant's complaint in relation to the pleading of attribution of conduction in respect of Mr Irving KC is necessary to inform the Respondent of the case that it is required to meet at trial. Nevertheless, given that I am going to strike out paragraphs 24 and 25 of the SOC, the Applicant has an opportunity to address the complaints made by the Respondent. I shall leave it to the Applicant to determine whether to address this matter further in any revised pleading.
2. I note in passing that Mr Irving KC would appear to have been appointed pursuant to s 323C of the Fair Work (Registered Organisations) Act 2009 (Cth) with the powers and functions that are set out in s 323K of that Act.

At all material times, by reason of the matters in paragraphs 2 and 3 above, the CFMEU knew that Ms Van Arend was entitled to the workplace rights described at paragraph 9.b above.

By reason of the matters referred to in paragraph 33 above, the CFMEU's contraventions of s 340 set out at paragraphs 29 and 32 above are serious contraventions within the meaning of ss 539 and 577A of the FW Act.

1. Section 539(2) of the FW Act sets out the maximum penalties for breaches of civil remedy provisions and details when a Court can order penalties for serious contraventions. Item 11 of the table, which includes s 340, does not refer to serious contraventions.
2. Section 557A of the FW Act provides:

Serious contravention of civil remedy provisions

1. A contravention of a civil remedy provision by a person is a serious contravention if:
   1. the person knowingly contravened the provision; or
   2. the person was reckless as to whether the contravention would occur.
2. For the purposes of subsection (1), a person is reckless as to whether a contravention would occur if:

   1. the person is aware of a substantial risk that the contravention would occur; and

   2. having regard to the circumstances known to the person, it is unjustifiable to take the risk.

Involvement in a serious contravention

5A. A person (the involved person) who is involved in a contravention of a civil remedy provision by another person (the principal) commits a serious contravention of the provision only if:

1. the principal's contravention was a serious contravention; and

2. the involved person knew that the principal's contravention was a serious contravention.

Application for a serious contravention order and alternative orders

1. If a person is applying for an order in relation to a serious contravention of a civil remedy provision, the person's application under subsection 539(2) must specify the relevant serious contravention.
2. If, in proceedings for an order in relation to a serious contravention of a civil remedy provision, the court:

   1. is not satisfied that the person has committed a serious contravention against that provision; and

   2. is satisfied that the person has contravened that provision;

the court may make a pecuniary penalty order against the person not for the serious contravention but for the contravention of that provision.

1. In short, for certain contraventions of the FW Act, there is a greater penalty where the contravention can be characterised as a 'serious contravention'. The Applicant's claims for contravention of the general protection provisions are not ones for which a finding of 'serious contravention' provide enhanced penalties. The pleading of 'serious contravention' would appear to serve no purpose. Such a finding goes to the characterisation of the contravention for the purpose of penalty only.
2. Accordingly, had I not already determined to strike out paragraphs 33 and 34 (on the basis that they formed part of an incomplete cause of action), I would have struck out those paragraphs on the basis that they are "likely to cause prejudice, embarrassment or delay in the proceeding" or "fails to disclose a reasonable cause of action or defence or other case appropriate to the nature of the pleading".

1. I am not satisfied that the Respondent's complaints in relation to paragraph 35 and the particulars to that paragraph are in respect of matters that would cause embarrassment at trial. Many of those complaints concern questions of fact, that will be addressed by evidence and submissions at trial. Accordingly, had I not already determined to strike out paragraph 35 (on the basis that it formed part of an incomplete cause of action), I would not have struck out that paragraph. To the extent that there is merit in the complaint made in paragraph 29 of the Respondent's submissions, that matter should be addressed in any revised pleading.

The Summary Dismissal Adverse Action, amounted to a termination in breach of contract because Ms Van Arend's the interactions pleaded at 13 and 14 above did not constitute serious misconduct.

1. I consider that the pleadings at paragraphs 36 and 37 are deficient because they fail to plead essential elements of the claim, namely the relevant terms of the Contract of Employment, and by extension, the breach(es) of the term(s) alleged.
2. Paragraph 36 of the SOC must be struck out on the basis that it "is likely to cause prejudice, embarrassment or delay in the proceeding" or "fails to disclose a reasonable cause of action or defence or other case appropriate to the nature of the pleading".
3. Having determined to strike out paragraph 36 of the SOC, it is unnecessary for me to consider the further point that some of the loss and damage sought to be recovered is barred by the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic), because a serious injury certificate is required. Until the question of the terms of contract and breach are addressed, it would be speculative to attempt to address the complaint in relation to the pleading of the claim for non-economic loss.[43] To the extent that there is merit in this ground, it is a matter that can be pleaded by way of defence. It strikes me that the issue is likely to be more efficiently addressed by way of evidence and submissions, rather than in a pleading fight.

1. As set out above, I have decided to strike out critical parts of the two causes of action pleaded by the Applicant in the SOC, namely the Applicant's claims under Part 3-1 (General Protection) and the Applicant's claims for breach of contract. While not all of the constituent paragraphs of the two causes of action are objectionable (for example, most of paragraphs 1 to 25), the "residue would be confusing" and leave incomplete causes of action.[44]
2. I am not satisfied that the Applicant "has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding". Accordingly, I shall strike parts of the SOC out on the basis that the Applicant have a right to replead and to address the deficiencies identified above. The contention that the Applicant's claims ought to be summarily dismissed because she has had "three opportunities to frame those claims", elides the separate nature and roles of the initiating process, statement of claim and particulars.
3. I will hear the parties in respect of costs.

I certify that the preceding seventy-onenine (71) numbered paragraphs areare a true copy of the Reasons for Judgment of Judge Fary.

[2] Orders made by Judge Fary on 12 September 2025, Order 1.

[3] [2024] FCA 1206.

[5] Rule 13.01(1) of the 2025 GFL Rules.

[6] [2021] FCAFC 25; (2021) 283 FCR 348 at [42].

[7] Which previously had application by r 1.06(3) of the 2021 GFL Rules and item 14 of Schedule 1.

[8] Imobilari Pty Ltd v Opes Prime Stockbroking Ltd [2008] FCA 1920; (2008) 252 ALR 41 per Finkelstein J at 43.

[9] [2022] FCAFC 60.

[11] [2022] FCAFC 60.

[13] [2022] FCAFC 60.

[14] See also Murdock v Virgin Australia Airlines Pty Ltd (No 2) [2023] FCA 569 at [21].

[15] See: Dey v Victorian Railways Commissioners (1949) 78 CLR 62, Dixon J at 91; Favell v Queensland Newspapers Pty Ltd (2005) 221 ALR 186 at [6]; Trade Practices Commission v Pioneer Concrete (Qld) Pty Limited (1994) 52 FCR 164 at 175 (Sheppard J, with whom Jenkinson and Drummond JJ agreed); Allstate Life Insurance Co v Australia & NZ Banking Group Ltd [1994] FCA 636; 217 ALR 226; Polar Aviation Pty Ltd v Civil Aviation Safety Authority and Ors [2012] FCAFC 97; 203 FCR 325 at [40]- [43].

[16] KTC v David [2022] FCAFC 60 at [118].

[17] Australian Securities and Investments Commission v Cassimatis [2013] FCA 641; (2013) 220 FCR 256 at [45].

[18] Leach v Burston [2022] FCA 87 (Leach v Burston) at [36].

[19] Quach v Commissioner of Taxation [2019] FCA 1729 at [12].

[21] Noting s 143(3) of the FCFCOA Act.

[22] Spencer v Commonwealth of Australia ([2010] HCA 28; 2010) 241 CLR 118 at [24].

[23] [2010] HCA 28; (2010) 241 CLR 118.

[26] See generally Esso Australia Pty Ltd v Australian Workers' Union [2017] HCA 54; (2017) 263 CLR 551.

[27] [2018] FCAFC 83; (2018) 261 FCR 347.

[29] [2012] HCA 32; (2012) 248 CLR 500 at [104].

[30] (2014) 314 ALR 346 (Shea) at [625].

[31] [2019] FCAFC 16; (2019) 268 FCR 46.

[32] [2021] FCAFC 178; (2021) 393 ALR 629

[34] [2022] FCA 677 [141]-[143].

[35] [2022] FCA 1226 at [172].

[36] [2022] FCAFC 71; (2022) 402 ALR 1 at [36].

[38] Alam v National Australia Bank Limited [2021] FCAFC 178; (2021) 393 ALR 629 (Alam).

[40] Serpanos v Commonwealth of Australia [2022] FCA 1226 at [172].

[41] Kernel Holdings Pty Ltd v Rothmans of Pall Mall (Australia) Pty Ltd [1991] FCA 557; (1991) 217 ALR 171 per French J at 173.

[42] Australian Building and Construction Commissioner v Hall [2018] FCAFC 83; (2018) 261 FCR 347 at [19].

[43] Compare Elisha v Vision Australia Ltd [2024] HCA 50.

[44] Trade Practices Commission v Australian Iron & Steel Pty Ltd [1990] FCA 23; (1990) 22 FCR 305 at 323.