(2) Adverse action includes:
(a) threatening to take action covered by the table in subsection (1); and
(b) organising such action.
…
(Emphasis added)
66 The parties agreed that two central issues fall to be determined with respect to s 340. They are as follows:
(a) whether any action was taken at all; and
(b) to the extent that any action was taken, whether that action had the effect of prejudicing Universal Cranes in respect of any contract for services they had.
It should be recorded that there was no dispute that at all relevant times Universal Cranes had a workplace right as defined in s 341(1).
67 The first central issue above is a question of fact. The paragraphs of the ASOC which describe the conduct of the respondent concerned relating to each of the four incidents are set out above (see the first Legacy Way incident at [20]; the second Legacy Way incident at [25]; the second Port Connect incident at [34]; and the third Port Connect incident at [42]).
68 On this aspect, it is worth noting that in Tattsbet Ltd v Morrow (2015) 233 FCR 46; [2015] FCAFC 62, Jessup J (with whom Allsop CJ and White J agreed) said (at [119]) that there is a history of many first-instance judgments of this Court where: "… it has been treated as uncontroversial that the party making an allegation that adverse action was taken 'because' of a particular circumstance needs to establish the existence of the circumstance as an objective fact …". See also Fair Work Ombudsman v Australian Workers' Union (2017) 271 IR 139; [2017] FCA 528 (Fair Work Ombudsman) at [72] per Bromberg J and the authorities there cited.
69 As to the second central issue above, to constitute prejudice for the purposes of s 342(1) item 7(c), the Commissioner must establish that there was a "prejudicial alteration" to Universal Cranes' position. It is sufficient if that prejudicial alteration "is real and substantial rather than merely possible or hypothetical". It will occur "even though the [person concerned] suffers no loss or infringement of a legal right" (see Qantas Airways Ltd v Australian Licensed Aircraft Engineers Association (2012) 202 FCR 244; [2012] FCAFC 63 (Qantas) at [30] and [32]).
70 The prejudice relied upon by the Commissioner is described in the ASOC for each incident: for the first Legacy Way incident see [20] above at (26); for the second Legacy Way incident see [26] above at (41) and (42); for the second Port Connect incident see [35] above at (92) and (93); and for the third Port Connect incident see [43] above at (151) and (152). In summary, it was to stop Universal Cranes from performing crane services for that project for which it had been hired to perform. For the third Port Connect incident, it was, insofar as Mr Ravbar is concerned, to stop Universal Cranes from performing work that it had been engaged to perform for that project. With respect to Mr Sutherland, it was to prevent Universal Cranes from performing the crane services for which it had been hired to perform at that project on that day and from being hired to perform crane work during the day thereafter.
71 Next, s 343 relevantly provides:
(1) A person must not organise or take, or threaten to organise or take, any action against another person with intent to coerce the other person, or a third person, to:
(a) exercise or not exercise, or propose to exercise or not exercise, a workplace right; or
(b) exercise, or propose to exercise, a workplace right in a particular way.
Note: This subsection is a civil remedy provision (see Part 4-1).
…
72 It is well-established that the expression "intent to coerce" in s 343 carries within it a requirement to establish two discrete elements. Those elements were authoritatively identified in Esso Australia Pty Ltd v Australian Workers' Union (2016) 245 FCR 39; [2016] FCAFC 72 (Esso FC) as follows (at [174] (Buchanan J; Siopis J agreeing):
Coercion has been held to require the satisfaction of two elements: negation of choice; and, the use of unlawful, or illegitimate or unconscionable means (see the discussion in Finance Sector Union of Australia v Commonwealth Bank of Australia (2000) 106 FCR 16; Seven Network (Operations) Ltd v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (2001) 109 FCR 378 (Seven Network); Fair Work Ombudsman v National Jet Systems Pty Ltd (2012) 218 IR 436 and Victoria v Construction, Forestry, Mining and Energy Union (2013) 218 FCR 172).
73 This conclusion and the line of authorities upon which it was based do not appear to have been affected by the recent High Court judgment on appeal from that judgment (see Esso Australia Pty Ltd v Australian Workers' Union (2017) 350 ALR 404; [2017] HCA 54 (Esso HC) at [61]-[63] (Kiefel CJ, Keane, Nettle and Edelman JJ)).
74 Accordingly, the Commissioner accepted that, in order to establish a contravention of s 343, he must establish that:
(a) the action alleged was taken against Universal Cranes;
(b) the action was taken for the alleged purpose;
(c) in taking the action the respondents had an intention to coerce Universal Cranes, that is, to negate its choice; and
(d) the action to be taken, or actually taken, was unlawful, illegitimate or unconscionable.
75 With respect to the third element above, the intent to negate choice must involve "a high degree of compulsion, at least in a practical sense, and not some lesser form of pressure by which a person is left with a realistic choice as to whether or not to comply" (see National Tertiary Education Industry Union v Commonwealth of Australia (2002) 117 FCR 114; [2002] FCA 441 (NTEIU) at [103] per Weinberg J, quoted with approval by Buchanan and Griffiths JJ in Victoria v Construction, Forestry, Mining and Energy Union (2013) 218 FCR 172; [2013] FCAFC 160 at [75]).
76 With respect to the last two elements above, a proscribed intent to coerce is sufficient if the conduct or action concerned is, objectively assessed to be, unlawful, illegitimate or unconscionable. While it does not arise in this matter, it is therefore unnecessary for the conduct or action to actually be undertaken (Esso FC at [176], [180], [194] and [200]-[201]) and Esso HC at [61]).
77 In this matter, the intent and conduct pleaded concerning each of the four incidents was essentially the same: for the first Legacy Way incident see [22] above at (30); for the second Legacy Way incident see [27]-[29] above at (46), (48) and (50); for the second Port Connect incident see [36] and [37] above at (97) and (99); and for the third Port Connect incident see [44] and [45] above at (156) and (158). With each incident the intent pleaded is follows:
(a) [The individual respondent concerned] intended to apply pressure to Universal Cranes by interfering with its capacity to perform work and earn income so as to force it to seek to make an enterprise agreement on the terms of the CFMEU pattern agreement;
78 And with each incident the conduct pleaded is as follows:
(b) the exertion of the pressure was unlawful, illegitimate and/or unconscionable in that it was:
(i) in contravention of s.340 of the FW Act;
(ii) action which was adverse to Universal Cranes that neither [the individual respondent concerned] nor the CFMEU had any entitlement to undertake.
79 In closing submissions, the Commissioner's counsel made it clear that the conduct described in (i) and (ii) above were advanced as alternatives.
80 The question whether a breach of s 340 could be relied upon to establish unlawfulness for the purposes of s 343 as pleaded in (b)(i) above became a point of contention at the trial. The Commissioner relied upon the decision in Qantas to claim that a contravention of s 340 had "previously been accepted to satisfy the unlawfulness element" of coercion. In Qantas the issue arose in the following context. First, the Court began by outlining how the issue had arisen before the primary judge as follows (at [80]):
The appellants argued on this appeal that there was substantial unfairness arising from the course of the correspondence which occurred after the hearing. The federal magistrate identified that coercion would only be established if the alleged action was illegal, illegitimate or unconscionable. He raised for consideration whether the action taken against Mr Murray amounted to discrimination and whether that action was unlawful, illegitimate or unconscionable. In his reasons for judgment the federal magistrate rejected discrimination as the element of unlawfulness because it had not been part of the respondent's case at trial. The federal magistrate, however, determined that the threat of adverse action made by Mr Cawthorne in contravention of s 340 of the Act did satisfy the requirement of unlawfulness for the purposes of the s 343 claim. The appellants contended that it was unfair for the federal magistrate to raise discrimination in correspondence as a possible basis for satisfying the second element of the s 343 contravention, but not to raise the s 340 contravention as a possible basis for satisfying that element, when the latter was ultimately accepted.
(Emphasis added)
81 Then, after considering the pleadings and the manner in which the hearing had been conducted, the Court observed (at [90]):
As explained in [85] of these reasons the parties conducted the case before the federal magistrate on the basis that the element of unlawfulness or unconscionability was not a live issue in the case. Consequently, there was no unfairness to the appellants in the course taken by the federal magistrate. The factual foundation for the coercion finding overlapped the factual foundation for the finding of a contravention of s 340(1). Both depended on the respondent establishing that Mr Cawthorne threatened Mr Murray that his overseas postings would be denied unless he withdrew his claim. Hence, in explaining his reliance on the contravention of s 340(1) as satisfying the elements of unlawfulness, the federal magistrate said at [55]:
Although this was not specifically pleaded by the applicant, either in relation to 1(a) or 2(a) of the Amended Application filed on 6 August 2010, I am satisfied that the relevant acts were clearly identified in the proceedings and thoroughly litigated.
(Emphasis added)
82 The CFMEU relied upon the following obiter observations of Bromberg J in Fair Work Ombudsman (at [73]):
However, I was not referred to any cases in which that approach has been applied to ss 343 or 348. Unlike s 340(1)(a) which is concerned with "action" which may be characterised as reprisal for past conduct, ss 343 and 348 are concerned with "action" that seeks to influence future conduct. As Jessup J went on to say at [120] of Tattsbet, the jurisprudence to which his Honour referred at [119] was relevant to the application of the s 361 presumption to a s 340(1)(a) case and that different considerations may apply in a case reliant upon s 340(1)(b). Section 340(1)(b) is a new provision introduced by the FW Act, addressed at future conduct, and may have more in common with ss 343 and 348 coercion than with s 340(1)(a) adverse action.
(Emphasis added)
83 What constitutes illegitimate conduct for the purposes of (ii) above has been considered in a number of first instance decisions. First, in Williams v Construction, Forestry, Mining and Energy Union (2009) 179 IR 441; [2009] FCA 223 (Williams), Jessup J used a "base-line of normality" to assess whether the respondents' actions were legitimate as follows (at [109]):
Was it illegitimate for Mr Mates to seek to achieve his purpose of having Kane employ a labourer on the site by organising the workers to have themselves relocated elsewhere, thereby bringing about a stoppage of work on the site itself? He was careful to do so in a way that did not involve any obvious breach of the workers' contracts of employment. Whether the withdrawal of labour by subcontractors (Northwest Concrete and BV Rigging) was a breach of their contracts with Kane was unclear: as matters were left in the evidence, I could not hold that it was in either case. However, the subcontractors had sent their employees to work on the site in accordance with normal commercial arrangements made by Kane and for the purpose of carrying out tasks which, at least to a significant extent, were on the critical path. It does not, in my view, require knowledge of the terms of the contracts between the subcontractors and Kane to conclude, as I do, that Kane was entitled - in a business if not a legal sense - to expect that, in the normal course, those employees would remain on site and carry out those tasks. It would, I consider, be rather odd for a court to hold that it was perfectly alright for a stranger to the relationship between the subcontractors and Kane to prevail upon the employees of the former to make a request to their employers that they be taken off site. I express these views not to suggest that they reflect anything like the actual situation on the site on 31 July 2006, but rather to establish a base-line of normality, as it were, by reference to which it should then be regarded as lying upon the respondents to establish that the situation on the site was such as to give legitimacy to Mr Mates' actions.
(Emphasis added)
84 Jessup J returned to the issue in Esso Australia Pty Ltd v Australian Workers' Union (2015) 253 IR 304; [2015] FCA 758 (Esso). First, his Honour concluded that the pressure the respondent applied to the applicant was sufficient "… to cause it to act otherwise than in the exercise of its own free choice. It was to cause it to agree to terms in a prospective enterprise agreement to which it would not, as a matter of choice, have agreed in the absence of that pressure" (at [174]). Having done so, his Honour concluded that pressure was illegitimate as follows (at [175]):
In my view, that application of pressure was illegitimate. In every respect, the bans and stoppages notified on 3 February 2015 involved refusals by the employees concerned to perform some aspects of their required, customary, duties pursuant to their contracts of employment. The obligation to serve lies at the heart of any employment relationship. The conclusion that it is illegitimate for an employee to refuse to serve as a means of extracting beneficial terms from his or her employer is one that will rarely be difficult to draw. On the facts of the present case, when, to use Mr Davis's concession, the employer was in a vulnerable position, this conclusion is readily to be drawn, and I do so.
(Emphasis added)
85 Finally, I considered this issue in Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2017) 267 IR 130; [2017] FCA 157 (Carrara). The issue in that case was whether a series of actions, each of which involved the exercise of a legal right, could constitute illegitimate conduct. At [128]-[152], I considered various authorities on what constituted illegitimate conduct, including Williams and the text, Unjust Enrichment (2nd ed, Hart Publishing, 2016) by Edelman J and Bant E, and concluded (at [152]):
So, having regard to all these matters, I consider the disproportionality principle identified in Verve Energy and discussed in Unjust Enrichment provides an answer to the question I have posed above. That is, disproportionality between a lawful threat of action, or the lawful action itself, and the legitimate interest in the demand the threat, or action, supports is the appropriate legal standard to be applied to determine whether the threat of action, or actual action, is illegitimate.
(Emphasis added)
86 Next, s 354 relevantly provides:
(1) A person must not discriminate against an employer because:
(a) employees of the employer are covered, or not covered, by:
(i) provisions of the National Employment Standards; or
(ii) a particular type of workplace instrument (including a particular kind of workplace instrument within a type of workplace instrument); or
(iii) an enterprise agreement that does, or does not, cover an employee organisation, or a particular employee organisation; or
(b) it is proposed that employees of the employer be covered, or not be covered, by:
(i) a particular type of workplace instrument (including a particular kind of workplace instrument within a type of workplace instrument); or
(ii) an enterprise agreement that does, or does not, cover an employee organisation, or a particular employee organisation.
Note: This subsection is a civil remedy provision (see Part 4-1).
…
87 In order to establish a contravention of s 354, the parties agreed that the Commissioner must prove the following elements:
(a) that the employees of Universal Cranes were covered by the relevant type of industrial instrument described in s 354(1)(a)(iii); and
(b) that the respondents discriminated against Universal Cranes.
88 What constitutes discriminating against a person for the purposes of the second element above was considered by a Full Court in Australian Building and Construction Commissioner v McConnell Dowell Constructors (Aust) Pty Ltd (2012) 203 FCR 345; [2012] FCAFC 93 (McConnell Dowell), albeit with respect to a different, but analogous, provision of the Building and Construction Industry Improvement Act 2005 (Cth) (s 45). First, on that question, Buchanan J reviewed the relevant authorities (at [10]-[25]) and concluded (at [27]):
In the light of these various indications in judgments of the High Court over a long period of time about what is involved in the notion of conduct which "discriminates against" an entity or person, and in the absence of any legislative statement in the Act about what will constitute such conduct for the purposes of the Act, in my view the conclusion should be drawn that some adversity must be identified in order to establish that the prohibition in s 45 of the Act has been infringed. That is clearly the view which was taken by the trial judge. In my respectful opinion that approach was the correct one.
(Emphasis added)
89 Next, Flick J conducted a similar exercise and expressed his conclusions in a series of passages as follows (at [69]-[73]):
69 … it is considered that the natural and ordinary meaning of the phrase "discriminate against" is that an "adverse distinction" is made between persons …
…
71 … Notwithstanding the width of language otherwise embraced by s 45(1)(a), it is concluded that the phrase "discriminate against" only identifies that conduct which is taken "against" an employer and which operates adversely to his interest …
…
73 … the phrase "discriminate against" is a phrase which has been used in a variety of contexts as requiring an element akin to "adverse" action … of a persons being treated "unequally and disadvantageously" … ["]imposes some special burden or disability on them" … as simply treating "equally things that are unequal" … Each of the conclusions reached is obviously dictated by the legislative context in which the terms in question were employed.
(Emphasis added)
90 Finally, on the same question, Katzmann J concluded (at [111]):
Discrimination may be positive or negative. Section 45 is concerned with negative or adverse discrimination. Differential treatment is insufficient to establish that there has been adverse discrimination. As positive discrimination connotes conferring a favour, advantage or benefit, negative discrimination carries with it the imposition of a detriment or disadvantage: cf Street v Queensland Bar Association (1989) 168 CLR 461 at 506 per Brennan J. Where there is no detriment or disadvantage, or no favour or benefit has been withheld or withdrawn, there will be no adverse discrimination. In other words, there must be adverse consequences from the differential treatment. In my view, that was all the primary judge was saying. Contrary to the Commissioner's submission, his Honour did not require that damage, including financial loss, be proved. As McConnell Dowell submitted, the reference in his Honour's reasons to the absence of any financial implications for HLS was merely illustrative.
(Emphasis added)
See also Director, Fair Work Building Industry Inspectorate v ADCO Constructions Pty Ltd (No 2) [2016] FCA 1463 per Collier J at [103].
91 Relying upon these authorities, the Commissioner contended that an action which has an "adverse impact or detriment" for a person constitutes discriminating against that person and he provided the following examples:
(a) not being able to perform assembly work at the location most convenient to perform it (McConnell Dowell at [28] to [30]);
(b) incurring expenses (McConnell Dowell at [28] to [30]);
(c) actions that inflict consequences (Cozadinos v Construction, Forestry, Mining and Energy Union [2012] FCA 46 at [93]).
92 The Commissioner also submitted that the "practicality of actual consequences [we]re relevant to the question of whether discrimination ha[d] occurred" and that it was insufficient if "a person [wa]s left with less than they previously had".
93 Section 550 of the FW Act was relied upon by the Commissioner to fix liability for any contraventions committed by Mr Toyer and/or Mr Sutherland on Mr Ravbar and/or Mr Close. That section relevantly provides:
(1) A person who is involved in a contravention of a civil remedy provision is taken to have contravened that provision.
Note: If a person (the involved person) is taken under this subsection to have contravened a civil remedy provision, the involved person's contravention may be a serious contravention (see subsection 557A(5A)). Serious contraventions attract higher maximum penalties (see subsection 539(2)).
(2) A person is involved in a contravention of a civil remedy provision if, and only if, the person:
(a) has aided, abetted, counselled or procured the contravention; or
(b) has induced the contravention, whether by threats or promises or otherwise; or
(c) has been in any way, by act or omission, directly or indirectly, knowingly concerned in or party to the contravention; or
(d) has conspired with others to effect the contravention.
94 Bearing upon the operation of this provision, in Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2017] FCAFC 50, the Full Court observed that "knowing involvement" within the terms of s 550 meant that the respondents (at [59]):
… must have intentionally participated in the contravening conduct, with actual knowledge of the essential facts which constituted the contravention: see Yorke v Lucas (1985) 158 CLR 661 at 667 …
95 The Commissioner also relied on ss 363 and 793 to fix liability on the CFMEU for any contravening conduct of the four individual respondents. Those sections relevantly provide:
363 Actions of industrial associations
(1) For the purposes of this Part, each of the following is taken to be action of an industrial association:
…
(b) action taken by an officer or agent of the industrial association acting in that capacity;
…
…
(3) If, for the purposes of this Part, it is necessary to establish the state of mind of an industrial association in relation to particular action, it is enough to show:
(a) that the action was taken by a person, or a group, referred to in paragraphs (1)(a) to (e); and
(b) that the person, or a person in the group, had that state of mind.
(4) Subsections (1) to (3) have effect despite subsections 793(1) and (2) (which deal with liabilities of bodies corporate).
793 Liability of bodies corporate
Conduct of a body corporate
(1) Any conduct engaged in on behalf of a body corporate:
(a) by an officer, employee or agent (an official) of the body within the scope of his or her actual or apparent authority; or
(b) 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 and the procedural rules, to have been engaged in also by the body.
State of mind of a body corporate
(2) If, for the purposes of this Act 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:
(a) that the conduct was engaged in by a person referred to in paragraph (1)(a) or (b); and
(b) that the person had that state of mind.
Meaning of state of mind
(3) The state of mind of a person includes:
(a) the knowledge, intention, opinion, belief or purpose of the person; and
(b) the person's reasons for the intention, opinion, belief or purpose.
Disapplication of Part 2.5 of the Criminal Code
(4) Part 2.5 of Chapter 2 of the Criminal Code does not apply to an offence against this Act.
Note: Part 2.5 of the Criminal Code deals with corporate criminal responsibility.
(5) In this section, employee has its ordinary meaning.
96 In Director of the Fair Work Building Industry Inspectorate v Robinson (2016) 241 FCR 338; [2016] FCA 525, Charlesworth J made the following observations about the operation of s 793 (at [48]-[50]):
48 Section 793 does not, of itself, fix upon a body corporate liability for contraventions found to have been committed by its officers, employees or agents. Rather, it attributes to the body corporate the conduct and state of mind of its officers, employees and agents in prescribed circumstances. The question of whether the body corporate has contravened the FW Act (and, if so, on how many occasions) must be answered by assessing the facts, namely the conduct and state of mind attributed to the body corporate, against the elements of the contravention said to have been committed by it.
49 Two further things should be said about s 793 of the FW Act. The first is that s 793 does not exhaustively prescribe the legal means by which the state of mind held by, or the conduct engaged in by, a body corporate may be ascertained. Its purpose is to provide for an expanded range of persons whose conduct and state of mind might be ascribed to a body corporate than that which exists at common law, whilst at the same time preserving the common law doctrines: Walplan Pty Ltd v Wallace (1985) 8 FCR 27 at 35-37; Tesco Supermarkets Ltd v Nattrass [1972] AC 153.
50 The second thing to be said about s 793 arises from my earlier observation that it does not directly operate to fix liability for a contravention on a body corporate; it is not to be regarded as a codification of the doctrine of vicarious liability: cf Trade Practices Commission v Tubemakers of Australia Ltd (No 2) (1983) 76 FLR 455 at 474-475; 47 ALR 719 at 739 (Toohey J). The mere fact that two employees of the CFMEU have each contravened the FW Act does not of itself, demand the conclusion that the CFMEU is liable for two contraventions.
(Emphasis added)
97 To prove his case against the respondents, the Commissioner also relied on the rebuttable presumption contained in s 361 of the FW Act. That section relevantly provides:
(1) If:
(a) in an application in relation to a contravention of this Part, it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and
(b) taking that action for that reason or with that intent would constitute a contravention of this Part;
it is presumed that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise.
…
98 The interaction between this provision and sections such as 340 and 343 was examined most recently in ABCC v Hall. There, the Full Court began by summarising how s 361 was activated (at [13] and [15]) as follows:
13 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 …
15 The second pre-condition which must exist for the presumption in s 361(1) to operate is of equal importance in this matter. It is the requirement in s 361(1)(b) that "taking that action for that reason or with that intent would constitute a contravention of this Part". This pre-condition therefore requires more than an allegation with respect to an action, reason or intent. Additionally, it requires that taking the alleged action, for the alleged reason or with the alleged intent (or both), "would constitute a contravention of that Part".
(Emphasis in original)
99 The Court went on to remark that (at [24]):
… Because these three provisions [namely ss 340, 343 and 355] are in Part 3-1 of the FWA, ss 361 and 360 apply to the particular reason or purpose (s 360) for which the action is taken or threatened to be taken under ss 340, 343 and 355 and to the particular intent (s 361) with which the coercive action is taken under ss 343 and 355. Justice Bromberg correctly highlighted this composite effect of the operation of s 361 with respect [to] the existence of both the intent and reason or purpose components of s 343 in Construction, Forestry, Mining and Energy Union v McCorkell Constructions Pty Ltd (No 2) (2013) 232 IR 290 at 343; [2013] FCA 446 at [230]).
100 There is no issue that the two pre-conditions mentioned in ABCC v Hall above have been met in this matter. However, even though s 361 has been duly activated by the Commissioner's pleading, that does not relieve him "… from proving on the balance of probabilities each of the ingredients of the contravention. It enables the allegation to stand as sufficient proof of the fact unless the employer proves otherwise" (see Davids Distribution Pty Ltd v National Union of Workers (1999) 91 FCR 463; [1999] FCA 1108 at [109] (per Wilcox and Cooper JJ)). See also ABCC v Hall at [17].
101 Furthermore, the question whether the respondents have "prove[d] otherwise" falls to be determined at the end of the trial and depends on "the assessment of all of the facts by the trier of fact, including, most importantly in the conventional case, his or her assessment of the evidence given by the decision-maker acting on behalf of the employer" (see Construction, Forestry, Mining and Energy Union v Anglo Coal (Dawson Services) Pty Ltd (2015) 238 FCR 273; [2015] FCAFC 157 at [27]-[28] per Jessup J (with whom Rangiah J agreed)). See also ABCC v Hall at [18]. Consequently, if, in this matter, the Commissioner has failed to establish one of the elements of a contravention of ss 340, 343 or 354, there will be no necessity to consider whether one or more of the respondents has discharged his onus under s 361 to prove otherwise with respect to that particular alleged contravention.
102 The task a respondent has in discharging this onus, and the related effect of s 360 of the FW Act, was also examined by the Full Court in ABCC v Hall. While the following observations were specifically directed to s 340, they apply equally to ss 343 and 354. The Court said:
100 … If an applicant, on the whole of the evidence, establishes, to the Briginshaw standard, that the elements of a particular contravention (other than the reasons for the respondent taking action) exist and if the respondent wishes to avoid an adverse finding in respect of the alleged contravention the respondent will bear the onus to establish, on the balance of probabilities, that he or she had not acted for any proscribed reason: see Board of Bendigo Regional Institute of Technical and Further Education v Barclay (No 1) (2012) 248 CLR 500 at 512-513, 524; [2012] HCA 32 at [31]-[33] and [65] (French CJ and Crennan J); RailPro Services Pty Ltd v Flavel (2015) 242 FCR 424 at 447-450; [2015] FCA 504 at [80]-[93] (Perry J). As has already been noted above (at [14]), s 360 contemplates that there might be multiple reasons for a respondent taking action to the prejudice of the applicant. A reason will not be proscribed unless it is "a substantial and operative factor" in the respondents' reasons for taking the adverse action: see Barclay (No 1) at 523 [62] (French CJ and Crennan J) and 535 [104] (Gummow and Hayne JJ).
101 In this context the question "thrown up by s 340 is not one concerned with causation but, rather, the subjective reasons for action of the decision-maker": Construction, Forestry, Mining and Energy Union v Endeavour Coal Pty Ltd (2015) 231 FCR 150 at 173; [2015] FCAFC 76 at [91] (Perram J). What is involved is not an exercise in characterisation; the Court is required to make a decision about the internal reasoning process of an alleged contravener: Milardovic v Vemco Services Pty Ltd (Administrators Appointed) [2016] FCA 19 at [60] (Mortimer J).
103 Finally, it should be noted that, while ss 340, 343 and 354 all fall within the same part of the FW Act as s 361 (Part 3-1), and therefore that section applies to them, ss 550 and 793 do not.