Australian Meat Industry Employees' Union v Belandra Pty Ltd

Federal Court of Australia|2003-07-01

Introduction 102 There was disagreement between the parties as to the scope of s 298L(1)(a). 103 The respondents contended that the reference to union membership was a reference limited to the fact of belonging to a union. On this approach, a case does not come within s 298L(1)(a) if a reason for the employer's conduct is, for instance, that the employee has engaged in activities as a union member. The respondents relied upon a passage from the judgment of Kenny J in Australian Workers' Union & Ors v BHP Iron-Ore Pty Ltd (2000) 106 FCR 482; [2001] FCA 3 (AWU v BHP Iron-Ore), at par 66 as follows: 'In written submissions, the applicant referred to remarks of Wilcox and Cooper JJ in Davids Distribution at 500-501; 583, and stated that their: "… argument that membership of an industrial association was one of the Respondent's prohibited reasons is based on a concept and understanding of membership as being broader than simply the possession of a membership ticket." I do not accept this submission. Section 298L(1)(a) refers to membership of and holding office in a union. I do not think it is intended to cover any broader notion than that. Section 298L(1) (which describes what is a prohibited reason for s 298K(1) purposes) consists of 14 detailed paragraphs and a number of subparagraphs designed to protect an employee's freedom to join a union and to participate in union activities in a number of disparate situations. In Davids Distribution, their Honours were referring to the protection conferred by s 298L(1), considered as a whole. Their observations do not provide a basis for saying that par (a) of s 298L(1) is concerned with anything other than being, or proposing to become, a member (or an officer or delegate) of an industrial association. The concept of membership is recognised and dealt with in Pt IX, Div 9 of the WR Act. There is nothing in the terms of par (a) or elsewhere in the WR Act to justify the applicants' submission that par (a) is concerned with a person's activities as a member, officer or delegate of an industrial association. At least some of those activities are protected elsewhere in s 298L(1): see, for example, pars (f), (g), (i), (m) and (n).' [emphasis added] 104 The applicant submitted in response that the concept of membership is broader than the mere holding of a union ticket. It relied upon a passage from a judgment of Gray J made at the interlocutory stage of the same proceedings, (Australian Workers' Union and Others v BHP Iron Ore Pty Ltd) (2000) 96 IR 422; [2000] FCA 39, at pars 35 and 46, as follows: '35. …The concept of membership, for the purposes of this provision, is more than a mere formality. It includes the notion of the ability to have terms and conditions of employment regulated on a collective basis: see the judgment of Wilcox and Cooper JJ in Davids Distribution Pty Ltd v National Union of Workers (1999) 91 FCR 463 at 500; 91 IR 198 at 233 …. … 46. In Davids Distribution Pty Ltd v National Union of Workers (at 500; 233), Wilcox and Cooper JJ said: "Section 298K forbids an employer from dismissing an employee for a prohibited reason or for reasons that include a prohibited reason. The prohibited reasons are contained in s 298L. Each of the reasons relates to the exercise of the right of an employee or independent contractor to join, or refuse to join, an 'industrial association' (as defined) and, where the employee becomes a member of an industrial association, to take collective action by or through the industrial association in pursuit of their industrial interests. Section 298L(1)(l) is concerned to ensure that an employee who is dissatisfied with his or her industrial conditions is not discouraged from participation in concerted action engaged in by the industrial association of which the employee is a member and which is seeking better industrial conditions. The objective of s 298K is to ensure the threat of dismissal or discriminatory treatment cannot be used by an employer to destroy or frustrate an employee's right to join an industrial association and to take an active role in that association to promote the industrial interests of both the employee and the association. In the context of the Act, Pt XA does not stand alone. It is aimed at ensuring that employees may band together, if they wish, for collective bargaining of the type provided for in the Act to achieve the broader objectives of the Act as contained in s 3. In this regard the Act operates in the same way and to the same ends as similar legislation in the United States of America. … That which is protected by such legislation is more than the right to be a member. It is the right to participate in protected union activities, including the taking of collective industrial action against an employer to seek to obtain better industrial conditions. …"' See also Stephen Phillip Gibbs v The Palmerston Town Council (unreported, Gray J, 21 December 1987, at p 99) (Palmerston). 105 In AWU v BHP Iron-Ore, the terms of employment of the employees in the employer's Pilbara iron-ore mining and transport operations had been governed by collective agreements or awards negotiated by a number of unions. Most of the employees were members of one or other of the unions. Under Western Australian industrial legislation such collective agreements would be displaced by individual employment agreements. The employer offered individual employment agreements to the whole work-force. The agreements provided for higher wages and other incentives to those who signed. The unions brought proceedings alleging breaches of s 298K. They argued that the employer had injured employees and altered their position to their prejudice in breach of s 298K(1)(b) and (c) by making the offers of individual employment agreements. A reason for the conduct was alleged to fall within s 298L(1)(a). Her Honour described the applicant's case, at par 63, thus: 'The applicants' case under s 298L(1)(a) must be that BHPIO diminished the collective bargaining power of a non-accepting employee, and made him or her ineligible for the accrued leave option, for reasons that included that the employee was a member of an industrial association.' 106 Kenny J held that the offer of individual employment agreements did not constitute injury or prejudicial alteration within the meaning of s 298K(1)(b) and (c) because the diminution in collective bargaining power resulted from the acceptance by some employees and the rejection by other employees of offers made indiscriminately to all employees. Thus, it was not necessary for her Honour to consider whether the conduct was for a prohibited reason. Her Honour's reflections on that matter are obiter dicta. Nevertheless, those reflections are a useful starting point for a consideration of the issues in the present case. 107 In the passage which is extracted in par 102 of these reasons, Kenny J held that s 298L(1)(a) is not concerned with the activities of a person as a member of a union. Two reasons were given. One was that there was nothing in the section or elsewhere in the Act to suggest the contrary. The other was that some activities of union members were expressly protected in some of the following subsections of 298L(1). 108 The question which her Honour considered was whether conduct was carried out by the employer because an employee was "a member of an industrial association", when that conduct was carried out because the person had engaged in activities as a union member. There is another question arising from the construction of s 298L(1)(a). That question is whether conduct was carried out because a person was a "member of an industrial association", when the conduct was carried out because a union engaged in activities as an incident of the person being a member of the union. 109 This latter issue seems to have been the basis of the case put by the unions in AWU v BHP Iron-Ore. In par 65, immediately before the passage relied upon by the respondents in the present case, her Honour said: 'The applicants' real case, so far as BHPIO is concerned, is that the company offered WPAs [Workplace Agreements] on terms to all its employees as part of a stratagem to reduce union membership (at that time held by most of its workforce) in order to diminish the unions' bargaining power.' [emphasis added] 110 Her answer was: 'This case is properly considered under s 298M.' 111 There is no discussion as to why such a case would not fall within s 298L(1)(a). Nonetheless, there may have been an implicit determination to that effect. Alternatively, the question may not have been considered. In either event, there is little assistance to be derived from the case on this aspect. 112 However, in the present case, it is necessary to determine the scope of s 298L(1)(a) as it applies to union members and the activities of unions on their behalf. There are four possible limits to the operation of s 298L(1)(a), namely that the conduct is engaged in because, a) the employee belongs to a union; b) the employee is involved in activities as a union member; c) the union is involved in activities on behalf of the individual employee; d) the union is involved in activities as an incident of an employee being a member. In the present case, the question is whether s 298L(1)(a) extends to the reason referred to in (d). An appropriate starting point for this inquiry is an examination of the statutory background and context of the provision.

Statutory Background and Context 113 The statutory background and context indicates that the protection against discrimination or victimisation on the basis of union membership is of the broadest kind considered above. It extends to protection against discrimination or victimisation directed to a person because of actions taken by a union as an incident of that person being a member of the union. 114 Section 9(1) of the original Commonwealth Conciliation and Arbitration Act 1904 (the original Act), provided: '9.(1) No employer shall dismiss any employee from his employment by reason merely of the fact that the employee is an officer or member of an organization or is entitled to the benefit of an industrial agreement or award.' 115 The terms of the original section bear a close resemblance to the terms of s 298L(1)(a). An understanding of the scope of the original provision therefore sheds some light on the scope of the current provision. 116 At Federation, the main concern in labour relations was to control labour strikes in order to prevent a recurrence of the widespread strikes which had occurred in the 1890s. Section 51(xxxv) of the Australian Constitution (the Constitution) did not give the Federal Parliament a general power to regulate employment relations. Rather, it gave a limited power to legislate with respect to "conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one State." Thus, the original legislation related only to interstate industrial disputes. It prohibited strikes (and lockouts), but provided for a peaceful means of settling such disputes by conciliation and/or arbitration. The Commonwealth Court of Conciliation and Arbitration (the Arbitration Court) was established, and was given power to make awards in settlement of interstate industrial disputes. 117 The legislation was directed to the resolution of widespread disputation, not to the resolution of individual disputes between a single employee and a single employer. The system that was created depended on the collective participation of employers and employees. In order to provide for such participation, the original Act allowed for the registration and incorporation of employer and employee organisations. There were substantial advantages flowing from registration under the original Act. Registered organisations were given the right to institute proceedings in the Arbitration Court, and had a right of audience before the Arbitration Court. The Arbitration Court was empowered to award preference to union members. No new organisation could be registered if there was an existing registered organisation to which persons could conveniently belong. In The Jumbunna Coal Mine, No Liability and Another v The Victorian Coal Miners' Association (1908) 6 CLR 309, the High Court upheld the provisions of the original Act which provided for the registration and incorporation of organisations, and for the rights and obligations of those organisations. The High Court determined that such provisions were incidental to the exercise of power under s 51(xxxv) of the Constitution. O'Connor J explained the rationale for the creation of registered organisations, at 350-1, as follows: 'An industrial dispute is something more than a dispute between an employer and his individual workmen. It is a dispute between a combination of workmen and their employer or employers. The questions involved generally affect the whole trade, and a settlement is seldom adequate unless it binds the whole trade. It is not practicable to bring all employés in a trade before the Court, nor all the masters. Some method of representation of the disputants is therefore essential for the purpose of dealing with the dispute in its initial stages, of bringing the parties before the Court, and of enforcing observance of the award. Part V. creates a system by which associations of employers and associations of employés may, on complying with certain conditions, be registered as organizations. By registration they become corporations with powers specifically limited to the purposes of the Act. They represent their members collectively, and thus constitute the parties with whom the Court deals for purposes of conciliation, arbitration, and the enforcement of awards.' 118 The legislation also imposed various forms of control on unions in order to secure proper participation in the system of industrial regulation. The Arbitration Court had power to deregister a union if the rules of the organisation were tyrannical or oppressive, or imposed unreasonable conditions on members, or if the accounts of the union were not audited in accordance with the rules, or if the organisation wilfully neglected to obey an order of the Court. Unions were required to discipline members who engaged in unlawful industrial action, or breached orders. 119 The place of unions in the compulsory arbitration system is summarised by A Frazer 'Trade unions under compulsory arbitration and enterprise bargaining: a historical perspective' in P Ronfeldt and R McCallum (eds), Enterprise Bargaining, Trade Unions and the Law, Federation Press, Sydney, 1995 at 54, as follows: 'From its inception compulsory arbitration has been assumed to require the participation, promotion and regulation of unions as a key element of the system. This involvement rested on two notions: that employees could only be effectively represented (and regulated) by collective entities; and that certain of these entities should be given special status on registering under the system. Once registered unions became constituted as new right-and-duty-bearing legal entities and gained protections and preferences for both themselves and their members. As HB Higgins recognised, the whole system of compulsory arbitration was based on unions; indeed, 'without unions, it is hard to conceive how arbitration could be worked.' By this he meant that it was necessary for the demands and interests of a mass of employees to be represented collectively by legally constituted and responsible organisations. With legalised unions, employers could be assured that demands of employees were presented by a representative body and that only important issues would be pursued. Employees would have their voice heard without fear of reprisal, since "the individual employee is generally powerless". The interest of the Arbitration Court and the public it represented was also furthered since unions in practice tended towards moderation. By constituting unions as separate legal entities - autonomous, democratically governed and subject to decisions of the Arbitration Court - the arbitration system could operate under the assumption that the interests of workers were being represented, while unions would also ensure their members' compliance with court orders and awards. Hence the basis of compulsory arbitration was inherently collectivist, depending on unions as primary parties whose active participation was essential to the operation of the system.' 120 In due course, the question arose as to the basis upon which unions participated in the system. Did they act as agents for members, or were they party principals acting on their own account? If they acted as agents for members they could not raise a dispute with an employer who did not employ union members. That approach was rejected in Burwood Cinema Ltd v Australian Theatrical and Amusement Employees' Association (1924-1925) 35 CLR 528 (Burwood Cinemas). Powers J explained the position at 544-545: 'The Act was passed to allow collective bargaining and settlement of disputes, and not individual bargaining and settlement of disputes between employers and employees. As my brother Higgins put it in the case of Australian Workers' Union v. Pastoralists' Federal Council, "the Act recognizes unions, and makes unionism a part of its scheme. One of the 'chief objects' of the Act is 'to facilitate and encourage the organization of representative bodies of employees'; and Part V. of the Act is specially devoted to the constitution of organizations for the purposes of the Act.' 121 Starke J said at 551: 'An organization registered under the Arbitration Act is not a mere agent of its members: it stands in their place, and acts on their account and is a representative of the class associated together in the organization. It is, as my brother Higgins said, "a party principal," and "not a mere agent or figurehead."' 122 In Metal Trades Employers Association v Amalgamated Engineering Union (1935) 54 CLR 387, the High Court held that the Arbitration Court had power to make an award which bound employers to accord terms and conditions of employment to union members and non-union members alike. Latham CJ and McTiernan J followed Burwood Cinemas in explaining the basis upon which unions participated in the system. Latham CJ said at 403-404: 'Industrial disputes are essentially group contests - there is always an industrial group on at least one side. A claim of an individual employee against his employer is not in itself an industrial dispute. If it professes to be based upon an existing right (as, for example, a contract of employment, or an award (see Mallinson v. Scottish Australian Investment Co. Ltd.) such a claim may give rise to litigation in the civil Courts - but it is not an industrial dispute. If a claim is made by an individual employee for some improvement in his pay or conditions of employment, the refusal of the claim by his employer may result in a personal dispute, but this in itself would not be an industrial dispute. One necessary element of an industrial dispute, as distinguished from other disputes, is the circumstance that a demand is made by or upon a group of employers or employees. Thus an industrial organization is engaged in such a dispute when it makes what may be called an industrial demand on behalf of its members, present and future. In a forensic sense the organization is the party to the dispute, though it asks for nothing for itself as an organization. In another sense, the existing members of the organization are the parties to the dispute. The object of the dispute is to obtain rights for them or to cause them to become subject to obligations. The future members of the organization, though not in existence as such, are also regarded as represented in the dispute by the organization (Burwood Cinema Ltd. v. Australia Theatrical and Amusement Employees' Association).' 123 Whilst the Constitution did not give the Federal Parliament a general power to regulate wages and conditions of employment, the reach of the compulsory arbitration system expanded so that it became the instrument of general regulation of wages and conditions of employment. This expansion is partly explained as a result of the acceptance by the courts of the concept of paper disputes and of the doctrine of ambit. Annual national wage cases set the benchmarks for wages and conditions, which then flowed on to many other awards. Further, test cases established economy wide standards of employment, such as entitlements to termination and redundancy payments. In 1956, following The Queen v Kirby; Ex Parte Boilermakers' Society of Australia (1955-1956) 94 CLR 254, Parliament conferred the arbitral and conciliation function on the Commonwealth Conciliation and Arbitration Commission, and the judicial function continued to be exercised by the Arbitration Court. 124 Throughout the period under consideration the unions played a central role in the compulsory arbitration system. In the first major review of the system, which was completed in 1985 by the Committee of Review of Australian Industrial Relations, (the Hancock Committee), the role of unions was acknowledged thus: 'Trade unions and associations of employers have played and continue to play an indispensable part in the conciliation and arbitration systems. The structured system of dispute resolution developed under Commonwealth law embodies the concept of recognition by registration. This provides an orderly system of representation and enables the tribunals to make orders which bind parties 'known' to them and to the law. The registration system gives trade unions and employer associations special recognition under the Commonwealth Act and gives them corporate status.' [Report on Australian Industrial Law and Systems, Vol 2, 1985, Australian Government Publishing Service, Canberra, at par 9.6] 125 Then, as late as 1993, the Australian Industrial Relations Commission presided over by the President, Justice O'Connor, said in Re Aluminium Industry Award 1983 (1994) 56 IR 403 at 442: 'The establishment of conditions of employment at an enterprise level through a system of individual contracts between a company and each of its employees is one at variance with our system of industrial relations, a system which, since its inception, has been based upon collective processes as the means of providing terms and conditions of employment at the workplace. The present IR Act is based on a system of collective regulation in which registered organisations of employers and employees acting as parties principal are an integral part of the collective processes which operate under the Act. The company's action in deliberately seeking to eliminate the role of the unions at the workplace through the establishment of individual staff contracts, is inconsistent with the central role that registered organisations are given under the IR Act, in the prevention and settlement of industrial disputes. The Commission has a statutory obligation to encourage registered organisations.' 126 Of course, over the years since it was introduced the statute has been amended many times. The degree of regulation of the affairs of the unions has been extended and some of the rights given to unions have been changed. However, the fundamental concept that unions have a central role as parties principal in establishing and enforcing the terms and conditions of employment has not changed. 127 In the last ten years, two new concepts have been successively introduced into the labour relations system. The first was enterprise bargaining, and the second was individual employment contracts. Both represented a shift away from the system of centralised compulsory arbitration which operated in the previous 90 odd years. For the purposes of the present discussion, the significant factor is the extent to which each of these new concepts has impacted upon the role which unions have performed in the system since 1904. 128 Enterprise bargaining mechanisms were introduced in the Industrial Relations Reform Act 1993 (Cth) (the 1993 Act). A major change was the introduction of enterprise flexibility agreements, which could be made between employers and employees without the necessary involvement of a union, and which would prevail over awards. Richard Naughton in an article, 'Sailing into uncharted seas: The role of unions under the Workplace Relations Act 1996 (Cth)' Australian Journal of Labour Law, vol 10,1997, pp 112-132, explained the impact of the 1993 Act on the role of unions as follows: 'The Keating Government's Industrial Relations Reform Act 1993 ('Reform Act') radically reshaped the IR Act. The legislation sought to introduce a greater degree of flexibility into the Australian industrial system, by making enterprise bargaining the primary focus of the system. In spite of the changes it introduced, the Reform Act retained many features of the traditional, collective system. Unions were guaranteed a role in certified agreements (the dominant bargaining instrument) and kept all their well-entrenched "privileges". Mitchell has described the changes made by the Reform Act as an attempt to incorporate unions within the process of "deregulation". Throughout the 1980s the Federal Government 'steered a course, in co-operation with the union movement, for the bargained de-centralisation of industrial relations'. In this analysis the previous Government consciously eschewed the 'non-union' model of deregulation favoured by New Zealand, Britain, and some Australian state systems.' 129 The Liberal/National Party Coalition, elected to power on 2 March 1996, aimed at shifting the emphasis of the labour relations system from award regulation of employment conditions to agreements between employers and individual employees at the workplace level (AWA's). The original policy aim involved the introduction of a simple and attractive mechanism for the making of workplace agreements, which would prevail over awards, and would not involve any necessary input by unions or the Australian Industrial Relations Commission. The final form of the Workplace Relations Act 1996 (the 1996 Act) was a result of political compromise, necessary because the Coalition did not command a majority in the Senate. In the event, the 1996 Act did not reflect the entire original policy aim. In particular, the making of an AWA under the 1996 Act was a far from simple matter. In RC McCallum 'Australian Workplace Agreements - an analysis', Australian Journal of Labour Law, vol 10, 1997, pp 50-61, Professor McCallum offered the following opinion, at p 61: 'Instead of being the centrepiece of the WR Act, I venture to think that AWAs are likely to be relegated to the sleepy back-water of Australian industrial relations law.' 130 Professor McCallum's view seems to be supported by recent figures which show the use of AWAs after seven years since their introduction. The most recent figures produced by the Office of the Employment Advocate show that over 90% of employees subject to the Federal statute are employed under collective agreements with 81.93% under Federal Awards. Only 8.95% are employed under AWAs (Office of the Employment Advocate 2003, Sydney,viewed 28 August 2003, ). In a recent major assessment of the acceptance of AWA's, R Mitchell and J Fetter, 'Human resource management and individualisation in Australian labour law', The Journal of Industrial Relations, Vol. 45, No. 3, September 2003, pp. 294-327, the authors express the view that: 'Despite the increasing trend in the rate of approvals, AWAs statistically constitute only a very minor aspect of Australian industrial regulation, covering a tiny proportion of the workforce (1.9%).' 131 Other provisions of the 1996 Act were directed to changing the functions of unions. A full description is contained in Naughton, op cit. One major change was the modification of the "conveniently belong" test. Previously, existing unions were protected from encroachment by new unions seeking to cover the same members, where those members could conveniently belong to the existing union. Under the new s 189(1)(j), a union could be registered if members could more conveniently belong to the new union and the new union could more effectively represent those members. This again was a political compromise position reached after the government sought the deletion of the conveniently belong requirement altogether. Also, for the first time, the legislation provided for enterprise based unions (s 188(1)(c)). This allowed for the formation of a union in a single workplace. Using a different Constitutional basis, there was no longer a need for the organisation to be able to engage in an interstate industrial dispute. Further, the previous policy of encouraging the amalgamation of many smaller unions into larger ones was countered by new Div 7A Pt 9 of the 1996 Act. The new provisions allowed for disamalgamation of parts of unions that had come together under previous provisions, which had been introduced to facilitate amalgamation. The union right of entry provisions (s 285A-G) provided greater rights than the original Bill proposed, but less than previously existed. The 1996 Act added to the existing prohibition of victimisation of a person because that person was a member of a union, a prohibition of victimisation of a person because that person was not a member of a union. Union preference provisions were rendered void. 132 At the same time as the new legislation provided for AWAs, and restricted the functions of unions, the legislation sought to reduce the role of awards by significantly narrowing the range of matters which they could cover (ss 89A(2) and (3)). For a full discussion of the treatment of awards under the 1996 Act see M Pittard, 'Collective employment relationships: reforms to arbitrated awards and certified agreements', Australian Journal of Labour Law, vol 10, 1997 pp 62-88. Nevertheless, as discussed above, awards still regulate a large proportion of employment relationships. 133 In summary, when one surveys the last century of labour relations in Australia, one sees a clear continuity in the central role of unions in a compulsory arbitration system for the first 90 odd years. In 1996 radical changes were proposed, but were considerably watered down through political compromise. The result is that the award system continues albeit in an altered form. Unions continue to play a central, but modified, role. It would be wrong to view the current form of the legislation as having discarded the previous system in favour of a totally individual contract based system. In truth, the current statute has produced an hybrid system, in which the individual contracts system has been added onto the pre-existing compulsory arbitration model. Both exist side by side. And, in practice, the figures demonstrate that the award system remains far more widespread than the system of individual contracts.

The Scope of s 298L(1)(a) 134 It is in the light of this background and context that we must approach the meaning of s 298L(1)(a). The prohibited reason contained in s 298L(1)(a), so far as it relates to union members, has existed since 1904 when the original statute was enacted. At that time, unions had the central functions in the labour relations system, as has just been described in these reasons. Unions were, for instance, responsible for bringing interstate disputes before the court and for enforcing compliance with awards. These functions necessarily involved unions in activities such as collective negotiations with employers, and with investigating award breaches, perhaps by exercising a right of entry into the employer's premises. The exercise of these functions and powers was capable of generating employer resistance and antagonism. They were more likely to be the reason for an employer to dismiss an employee than the mere fact of an employee's membership of a union. Section 9 of the 1904 Act was the only protection which union members had against dismissal. This context demonstrates that Parliament intended to protect union members against dismissal caused by the union fulfilling the functions towards members reposed in the unions by the Act. Consequently, I am unable to agree with Kenny J in AWU v BHP (Iron Ore) that there is nothing in the terms of s 298L(1)(a), or elsewhere in the Act, to justify the view that s 298L(1)(a) is concerned with more than a person's membership of a union. Doubts about her Honour's conclusion have also been expressed by Weinberg J in National Union of Workers v Qenos Pty Ltd (2001) 108 FCR 90; [2001] FCA 178 (Qenos), at pars 124 and 125. See also Marshall J in Elliott v Kodak Australia Pty Ltd [2001] FCA 807 (Elliott) at pars 34 and 35. 135 It will be recalled that Kenny J gave, as a further reason for her conclusion that s 298L(1)(a) does not extend to conduct directed to an employee because of that person's activities as a union member, the fact that sub-sections (f), (g), (i), (m) and (n) partly protect the activities of a union member. Although her Honour did not expressly refer to the maxim expressio unius est exclusio alterius (an express reference to one matter indicates that other matters are excluded), her reasoning reflects the application of that maxim. That is to say, her Honour reasoned that the express protections provided in ss 298L(1)(f), (g), (i), (m) and (n) indicated that those protections were excluded from s 298L(1)(a). There are difficulties with this approach. 136 The maxim is applied by courts with caution: Houssein v Under Secretary of Industrial Relations and Technology (N.S.W.) (1982) 148 CLR 88, at par 10; Ainsworth v Criminal Justice Commission (1991-1992) 175 FCR 564 at 575-576; (1992) 106 ALR 11 at 16-17; Wentworth v New South Wales Bar Association (1992) 176 CLR 239 at 250; (1992) 106 ALR 624 at 624-628; DC Pearce & RS Geddes, Statutory Interpretation in Australia, 5th edn, Butterworths, Sydney, 2001, at par 4.26. This is because there may be other explanations for the specific references, than simply an intention to exclude them from the general reference. The approach is not to be applied if it would bring about a result that the legislature was unlikely to have intended: Ainsworth at 575. 137 Further, the history of the Act in general, and s 298L(1) and its predecessors in particular, suggests that the activities dealt with in ss 298L(1)(f), (g), (i) and (n) were already encompassed within s 298L(1)(a). As previously explained, the history of s 298L(1)(a) shows that it was intended to apply to conduct taken against an employee because the employee engaged in activities as a union member, and to conduct taken against an employee because of the activities of a union taken as an incident of the person's membership. Section 298L(1)(f) and (g) concern the institution by, and participation in, secret ballots by union members. That activity is defined by reference to the status of a person as a union member. Hence, the activity would fall within s 298L(1)(a). Section 298L(1)(i) also includes action taken by a union member in that capacity. Where a member engages the industrial law, that person's conduct will in some circumstances be properly characterised as an activity of the person taken as a member of the union. That action would also fall within s 298L(1)(a). Finally, s 298L(1)(n) is directed to the activity of a union member who has taken action to further the interests of the union. Such activity falls squarely within s 298L(1)(a) because it is an activity undertaken by a member in the capacity of a member of the union. 138 An examination of the circumstances in which each of the above subsections was introduced provides an explanation for the introduction of subsections which have a degree of overlap and duplication with s 298L(1)(a). 139 Where an amendment to industrial legislation has created a new right, such right is often accompanied by a protection for its enjoyment. The creation of the right, together with provision for its protection, constitutes a complete package to be presented to Parliament. However, often such protection would have been provided under an existing general protection in any case. The new provisions therefore overlap with, and highlight specific applications of, existing provisions in the Act. The following examples demonstrate this process. 140 Section 170CK(2)(b) provides that an employer must not terminate an employee's employment for the reason of trade union membership and s 170CR(1)(a) provides for the imposition of a penalty for such conduct. These provisions are duplicated in part in s 298K(1)(a), s 298L(1)(a), and s 298U(a), (b) and (c). When the predecessor to s 170CK(2)(b) was first introduced by the 1993 Act (as s 170DF(1)(b)) it was part of a new Division 3 relating to termination of employment. The object of the Division was to give effect to certain international instruments including the International Labour Organisation Convention (No.158) concerning Termination of Employment at the Initiative of the Employer (22 June 1982, Geneva, [1994] ATS 4) (Termination of Employment Convention) (s 170CA(1)). In accordance with that convention, a series of sections (ss 170DA - G) prohibited termination without proper notice, termination without giving an employee an opportunity to defend himself or herself against allegations of inadequate performance or conduct, or termination without a valid reason. The prohibition on termination for reason of union membership was, no doubt, included in Division 3 because it was one of the invalid grounds for termination stipulated in Article 5 of the Termination of Employment Convention. It was part of that package, and was so treated, even though that particular prohibition was already included in the predecessor to s 298L(1)(a), namely, s 334(1)(a). 141 Similarly, s 170MU prohibits an employer from dismissing an employee because the employee has engaged in protected action, which is industrial action in support of a proposed agreement (s 170ML(2)). Section 170NF provides for the imposition of a penalty for breach of s 170MU. These provisions are duplicated in part in s 298K(1)(a), s 298L(1)(n) and s 298U. The separate inclusion of s 170MU derives from the provision's history. It originated in s 334A of the 1993 Act. The 1993 Act introduced a package relating to enterprise bargaining, which included a limited right to strike. The idea was that employers and employees would bargain at the workplace in order to reach an agreement for that workplace. In aid of the process, the amendments made it legal for the parties to take industrial action. Employees were provided with protection from dismissal and other consequences for engaging in the permitted industrial action, as part of this package of changes. 142 The same packaging process, and resultant duplication, can be seen in operation in relation to ss 298L(1)(f), (g), (i) and (n). As the present discussion has been limited to the activities of union members, it is not necessary to address subs (m), to which Kenny J referred, as it relates to the activities of officers, rather than members, of unions. 143 Sections 298L(1)(f) and (g) prohibit certain conduct by an employer engaged in because a union member has sought an order for a secret ballot of members to be held at a workplace in relation to the taking of industrial action, or has participated in such a ballot. The provisions were first introduced in 1988 as s 334(1)(c) and (d) of the Industrial Relations Act 1988. They were introduced at the same time as ss 135 and 136 of that Act, which provided that union members could apply to the Australian Industrial Relations Commission for orders that such a secret ballot be conducted. Once again, we see the pattern of the amending statute providing for both the right and its protection. Applying for a secret ballot, or participating in such a ballot, will usually arise in the context of an industrial issue in which a union is likely to be involved. In that sense the circumstances are connected with a person's membership of the union so that, if an employer dismissed an employee because the employee applied for, or participated in, such a secret ballot, the dismissal would be properly described as for the reason that the person was a member of the union. 144 Section 298L(1)(i) concerns conduct taken against an employee for seeking the enforcement of an industrial law. A similar provision, but limited to conduct constituted by the dismissal of an employee, was first introduced in the 1993 Act as s 170DF(1)(e) as follows: '170DF (1) An employer must not terminate an employee's employment for any one or more of the following reasons, or for reasons including any one or more of the following reasons: … (e) the filing of a complaint, or the participation in proceedings, against an employer involving alleged violation of laws or regulations or recourse to competent administrative authorities;' 145 The section was included in Division 3 which relates to termination of employment. As noted above, one object of Division 3 was to give effect to the Termination of Employment Convention (see schedule 10 of the Act). Section 170DF(1)(e) adopted the wording of article 5(c) of the Termination of Employment Convention and was part of a group of sections designed to reflect the rights recognised by that Convention. To the extent that s 170DF(1)(e) encompasses resort by union members to industrial laws, or by unions on behalf of members, it duplicates part of the subject matter at s 298L(1)(a). 146 In the 1996 amendments, the terms of s 170DF(1)(e) were re-enacted in the 1996 Act as s 170CK(2)(e), and s 298L(1)(i) was introduced. The reason for the introduction of s 298L(l)(i) is not explained by the parliamentary materials. It duplicates the essence of much of s 170CK(2)(e) in relation to the dismissal of an employee. The new provision, however, extends the protection from termination to also include the other conduct referred to in s 298K(1)(b) - (e). Given the similarity of the subject matter of s 298L(1)(i) and s 170CK(2)(e), it is reasonable to conclude that s 298L(1)(i) also originated from the same source, namely, the Termination of Employment Convention. In this respect, s 298L(1)(i) differed from the other subsections of s 298L(1). The distinct source of s 298L(1)(i) explains why s 298L(1)(i) was introduced into s 298L, even though it duplicated part of s 298L(1)(a). A further reason was that although s 298L(1)(a) encompasses the protection referred to in s 298L(1)(i), it is limited in operation to union members whereas the protection referred to in s 298L(1)(i) applies to all employees. It was a convenient drafting approach to express s 298L(1)(i) in terms which included union members, but went beyond that group. 147 Section 298L(1)(n), relevantly, concerns conduct directed against a union member because that member has engaged in action that is lawful and authorised and which is undertaken to further the industrial interests of the union. The predecessor of this section was first introduced in 1973 as s 5(1)(f) of the Conciliation and Arbitration Act 1973 (Cth). The context in which the provision was introduced is evident from the second reading speech of Mr Clyde Cameron, the Minister for Labour. He said: 'The Bill amends section 5 of the Act to provide protection to officials, or members of unions against discriminatory action within the employer's establishment where the official or member has merely upheld the industrial interests of the employees, so long as the action he takes is within the limits of the authority given to him by the organisation. The Bill also provides protection for trade unions and their officials against actions for conspiracy or inducement of breach of contract founded on the events of an industrial dispute. I want to emphasise, however, that this protection will not extend to acts which cause death or physical injury to a person, physical damage to property or involves defamation, or to threats of such acts. The provisions protecting union officials from tortuous actions stem basically from the Government's belief that the right to strike is a fundamental right which every employee must have. Actions for tort founded on industrial disputes represent a direct negation of the right to strike. A strike by its very nature carries with it the threat that the employer will suffer some material loss. If an employer is to be permitted to recover at law any loss that he suffers from his employees then the right to strike becomes meaningless. Workers go on strike whatever the law may have to say about it. That is the clear experience throughout the whole history of the arbitration system in Australia and our experience is similar to what happens in other countries such as the United States, England and the other European nations.' (Australia, House of Representatives, Debates, vol HR83, 1973, p 1428.) 148 The speech continued by outlining the history of common law proceedings taken against unions in the United Kingdom, and the then current statutory immunity from such liability in the United Kingdom. The Minister further said, at 1429: 'The immunity from actions for tort that was granted to British unions by the House of Commons in 1906, is now extended by this Bill to officials and members of the Australian trade unions.' 149 Thus, again, the amendment of s 5(1) was made as part of a more general policy, namely, to protect union members from liability for taking industrial action. It was useful for the Minister, in presenting the entire package, to make reference to a special protection against dismissal and other adverse consequences against employees as a consequence of those employees engaging in industrial action, although s 298L(1)(a) would have provided protection in certain cases. 150 It follows from the history of s 298L(1) that Parliament intended s 298L(1)(a) to cover conduct taken against employees because they had taken action as members of a union, and because a union had taken action as an incident of that employee's membership of a union. It did not intend to limit s 298L(1)(a) by reference to ss 298L(1)(f), (g) (i) and (n). Rather, those subsections duplicated, in part, the provision of s 298L(1)(a) for specific historical reasons concerning the introduction of each of those subsections.

International Law and the Law of other Jurisdictions

Introduction 151 The trend away from collective bargaining and towards individual employment contracts in labour relations has been a phenomenon in many countries. Advocates for individual employment contracts argue that such contracts promote a more efficient workplace. It is thus suggested that there is an economic justification for the change. One aspect of the move towards individual employment contracts is the reduction or removal of third party intervention in workplace relations. Proponents of such change argue that a workplace will operate more efficiently and flexibly if employers relate directly with employees, free of the involvement of unions or the supervision of industrial tribunals. Because the move to individual employment contracts involves the elimination or reduction of the role of unions in the negotiation of terms and conditions of employment, arguments have arisen that employers have made the move in order to rid the workplace of union involvement, rather than for the economic advantage said to flow from the introduction of individual employment contracts. These arguments have led to litigation in domestic tribunals and courts in many countries. In most of these countries, the law has provided protection to employees against discrimination or victimisation because of union membership. The litigation has therefore been concerned with whether the change from collective bargaining to individual employment contracts has infringed the rights of employees to protection against victimisation or discrimination. In Australia, examples of such litigation include Telstra, Burnie and AWU v BHP. 152 Because the issue of the interrelationship between anti-discrimination laws and the trend towards individual contracts in labour relations has been so prominent in labour jurisprudence in recent times, it is important that Australian courts have regard to the views expressed in other countries. 153 The litigation in the United Kingdom is particularly instructive for present purposes. The cases there demonstrate a wide divergence of judicial opinion concerning the scope of protection against discrimination and victimisation because of union membership. It is useful to set out these views in order to inform the arguments in the present case. The issues considered are sufficiently similar to the issues arising under s 298L(1)(a) to make this a worthwhile exercise. But, in the end, the primary value of reference to the United Kingdom litigation is to be found in its final chapter. This occurred in July 2002 when the European Court of Human Rights (European Court) determined that the United Kingdom law, as determined by the House of Lords, did not conform with article 11 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (4 November 1950, Rome, 213 UNTS 221) (European Convention). The Court held that the protection accorded by article 11 extended beyond conduct directed against an employee because the employee held a union ticket. It extended to a prohibition of conduct directed against an employee because of the activities of a union as an incident of the employee's membership of the union. The decision of the European Court bears upon the current issue as a result of Australia's international law obligations and the impact of those obligations on domestic law. This matter will be addressed immediately. Then, the United Kingdom litigation and the decision of the European Court will be examined. Finally, reference will be made to some Canadian jurisprudence relating to the issue.

Australia's obligations under international law. 154 The role of international law in the interpretation of Australian statutes was dealt with in Minister for Immigration and Ethnic Affairs v Teoh (1994-1995) 183 CLR 273 (Teoh) by Mason CJ and Deane J at 287, as follows: 'It is accepted that a statute is to be interpreted and applied, as far as its language permits, so that it is in conformity and not in conflict with the established rules of international law (Polites v The Commonwealth (1945) 70 CLR 60 at 68-69, 77, 80-81). The form in which this principle has been expressed might be thought to lend support to the view that the proposition enunciated in the preceding paragraph should be stated so as to require the courts to favour a construction, as far as the language of the legislation permits, that is in conformity and not in conflict with Australia's international obligations. That indeed is how we would regard the proposition as stated in the preceding paragraph. In this context, there are strong reasons for rejecting a narrow conception of ambiguity. If the language of the legislation is susceptible of a construction which is consistent with the terms of the international instrument and the obligations which it imposes on Australia, then the construction should prevail. So expressed, the principle is no more than a canon of construction and does not import the terms of the treaty or convention into our municipal law as a source of individual rights and obligations (R v Secretary of State for Home Department; Ex parte Brind [1991] 1 AC 696 at 748).' [emphasis added] 155 On 28 February 1973, Australia ratified ILO Convention (No 87) concerning Freedom of Association and Protection of the Right to Organise (9 July 1948, San Francisco, [1974] ATS 3) (Freedom of Association Convention) and also the ILO Convention (No 98) concerning the Application of the Principles of the Right to Organise and to Bargain Collectively (1 July 1949, Geneva, [1974] ATS 5) (Right to Organise Convention). Article 2 of the Freedom of Association Convention deals with freedom of association as follows: 'Workers and employers, without distinction whatsoever, shall have the right to establish and, subject only to the rules of the organisation concerned, to join organisations of their own choosing without previous authorisation.' 156 Article 11 of the Freedom of Association Convention deals with the right to organise as follows: 'Each Member of the International Labour Organisation for which this Convention is in force undertakes to take all necessary and appropriate measures to ensure that workers and employers may exercise freely the right to organise.' 157 Article 1 of the Right to Organise Convention relevantly provides: '1. Workers shall enjoy adequate protection against acts of anti-union discrimination in respect of their employment. 2. Such protection shall apply more particularly in respect of acts calculated to -- … (b) cause the dismissal of or otherwise prejudice a worker by reason of union membership …' 158 Article 22(1) of the International Covenant on Civil and Political Rights (19 December 1966, New York, [1980] ATS 23) provides: 'Everyone shall have the right to freedom of association with others, including the right to form and join trade unions for the protection of his interests.' 159 This instrument came into force for Australia on 13 November 1980. See also: Article 8 of the International Covenant on Economic, Social and Cultural Rights (19 December 1966, New York, [1976] ATS 5) which came into force in Australia on 10 March 1976. 160 In the case of the Act under consideration, the impact of Australia's international obligations is made explicit by the principal object, which is set out in s 3 as follows: 'The principal object of this Act is to provide a framework for cooperative workplace relations which promotes the economic prosperity and welfare of the people of Australia by: … (f) ensuring freedom of association, including the rights of employees and employers to join an organisation or association of their choice, or not to join an organisation or association; and … (k) assisting in giving effect to Australia's international obligations in relation to labour standards.' [emphasis added]

United Kingdom Litigation. 161 Section 23 of the Employment Protection Consolidation Act 1978 (UK) (the UK Act) provided: '(1) Every employee shall have the right not to have action (short of dismissal) taken against him as an individual by his employer for the purpose of - (a) preventing or deterring him from being or seeking to become a member of an independent trade union, or penalising him for doing so; or (b) preventing or deterring him from taking part in the activities of an independent trade union at any appropriate time, or penalising him for doing so; or (c) compelling him to be or become a member of any trade union or of a particular trade union or of one of a number of particular trade unions.' 162 Section 58 of the UK Act provided: '(1) The dismissal of an employee by an employer shall be regarded for the purposes of this Part as having been unfair if the reason for it (or, if more than one, the principal reason) was that the employee - (a) was, or proposed to become, a member of an independent trade union, or (b) had taken part, or proposed to take part, in the activities of an independent trade union at an appropriate time, or (c) was not a member of any trade union, or of a particular trade union, or of one of a number of particular trade unions, or had refused or proposed to refuse to become or remain a member.' [emphasis added] 163 Section 58(1)(a) of the UK Act has parallels with s 298L(1)(a) of the Act. Section 23 of the UK Act is similar to s 298M of the Act. The UK litigation has involved cases brought under both s 23 and s 58 of the UK Act. The UK courts have treated the membership issues arising under s 23(1)(a) and s 58(1)(a) of the UK Act in the same way. 164 In Discount Tobacco & Confectionery Ltd v Armitage [1990] IRLR 15 (Armitage), Mrs Armitage was dismissed after she had approached her union concerning the terms of her employment, and the union wrote a letter to her employer on her behalf. Mrs Armitage successfully brought a claim under s 58(1)(a) of the UK Act in the Industrial Tribunal. On appeal to the Industrial Appeals Tribunal, the employers argued that there was a distinction between membership of the union, and an employee using the services of a union in negotiating the terms of employment. Knox J rejected the distinction, at 16, as follows: 'We find ourselves unconvinced of that distinction. In our judgment, the activities of a trade union officer in negotiating and elucidating terms of employment is, to use a prayer book expression, the outward and visible manifestation of trade union membership. It is an incident of union membership which is, if not the primary one, at any rate, a very important one and we see no genuine distinction between membership of a union on the one hand, and making use of the essential services of a union, on the other. Were it not so, the scope of section 58. (1)(a) would be reduced almost to vanishing point, since it would only be just the fact that a person was a member of a union, without regard to the consequences of that membership, that would be the subject matter of that statutory provision and, it seems to us, that to construe that paragraph so narrowly would really be to emasculate the provision altogether.' [emphasis added] 165 In 1994, the Court of Appeal heard two appeals together, namely, Associated British Ports v Palmer and Others and Associated Newspapers Ltd v Wilson [1994] ICR 97 (Palmer and Wilson). Both appeals arose under s 23(1)(a) of the UK Act. Palmer concerned workers employed in the port of Southampton. Prior to the events in question, the union and the employer had an agreement under which the employer recognised the union for the purposes of collective bargaining. That agreement was incorporated into the individual employment agreements with each employee. In 1991, the employer offered new employment contracts to manual grade employees. Under the new agreements, the employees gave up the "right" to union representation which they had under the previous contracts. No employee was compelled to accept the offer. For those who retained the previous contracts, the union continued to undertake collective bargaining with the employer. However, those who signed the new contracts were granted a significant pay rise. This pay rise was not offered to those who did not sign the new contracts. Those who signed the new contracts could, however, continue to be members of the union. Dillon LJ (with whom Butler-Sloss and Farquharson LJJ agreed) said at 101: 'But there is also a question to be considered of what is involved in the concept, in section 23 and section 58, of being a member of an independent union. That comes about because it is clear that the bottom line of the current thinking of employers in this field …is that "membership" means no more than that a person has his name recorded in the union's register of members and holds a union membership card, with the consequence that it is suggested … that it is a legitimate standpoint for an employer to say to an employee: "We have no objection to your being a member of a union, so long as you keep your membership card in your pocket unused and do not seek to make any use of your membership which could have any impact on us or our business."' [emphasis added] 166 His Lordship then referred to Armitage, set out in the passage extracted at par 166 of these reasons, and concluded that the decision in Armitage was "unquestionably correct". His Lordship then addressed an argument based on a suggested distinction between the reason for the action, and the means adopted to achieve the objective or the intermediate or collateral results, which might be caused in achieving it. He said at 102-3: 'To my mind that distinction sought to be drawn is in many respects unreal, and that is illustrated by the difference in approach in relation to the alleged purpose between the employers in the present case and the employers in Associated Newspapers Ltd v Wilson, post, p. 105G. It was said in evidence for the employers in the present case that their purpose in offering the personal contracts and the conditional pay rise was "to put into the hands of management the opportunity to discriminate in terms of pay in favour of those who are outstandingly dedicated." As a means towards that end, or an intermediate result, they sought to ensure they did not have to negotiate over pay and conditions with a union representative. They looked on the union as a hurdle and their purpose in conferring benefits on those who accepted personal contracts was said to be not to deter or penalise those who did not accept such contracts but to benefit the employers to the extent that they could conduct their business more efficiently if they did not have the need to indulge in what they saw to be the time-consuming task of negotiating with union officials. By contrast, in Associated Newspaper Ltd v Wilson it was said for the employers that their purpose in offering a pay rise to those employees who entered into personal contracts of employment by a certain date was to end collective bargaining with unions over pay and conditions of work. No doubt they had a reason for wanting to end collective bargaining, but they did not put forward that reason as being their "purpose" in relation to section 23.' 167 Dillon LJ addressed the employer's fall back position, at 104-5, as follows: 'Mr Elias [counsel for the employer] was reluctant to accept that being a member of an independent union meant no more, in sections 23 and 58, than being registered as a member in the books or the union and having a member's card. No doubt he realised that it could be regarded as unreal to suppose that those sections were only intended to protect the union card divorced from all incidents of membership or rights of the member. He therefore accepted that as a fallback position only, but he urged on us that as recognition of a union by an employer was voluntary, and there were union members employed by employers who did not recognise any union, the incidents of membership and rights of a member of a trade union which sections 23 and 58 were intended to protect could at most be the rights of the member as between himself and the union. He submitted that where an employee was a member of a union there were three separate bilateral relationships, that is to say, (1) between the employee and the union, (2) between the employee and the employer and (3) between the employer and the union. He said that the rights of the employee as a member of the union and the incidents of his membership were concerned exclusively with the first. Put shortly, he said that the concept of membership of a trade union involves only an employee's relationship with the trade union. It does not extend to the trade union's relationship with the employer and it is protected only as part of the individual's right to freedom of association. That, in my judgment, is too narrow an analysis, at any rate where, as here, at the relevant time the employer recognised the union for the purposes of collective bargaining on behalf of the employee. Beyond that, however, even if the employer has never recognised any union and is not bound to negotiate with the union or to negotiate with the employee through the union, the employer may invite trouble if the employer chooses to take action to dismiss or penalise the employee for getting the union to endeavour to negotiate with the employer, or to take some other step with the employer in relation to the employee's employment. In such a case the employer will run the risk, in the light of the Armitage case [1990] I.R.L.R. 15, that an industrial tribunal will hold that the action in question was taken by the employer because the employee was a member of a union.' [emphasis added] 168 The appeal in Palmer was allowed. 169 The appeal in Wilson related to the employment of journalists by The Daily Mail. Prior to 1989, the employer had negotiated the terms and conditions of employment collectively with the union. In 1989, it decided no longer to recognise the union and to deal with its employees directly on an individual basis. It therefore offered individual employment contracts to its employees. The new contracts provided for a 4.5% wage increase. The increase was not offered to those who refused to sign individual contracts. The de-recognition of the union was not directed to individual employees, and hence, could not amount to a breach of s 23(1)(a) of the UK Act. The offer of a pay increase was directed to individuals. The Court of Appeal held that it was open to the industrial tribunal to find on the evidence (as on the proper construction of its reasons, the industrial tribunal had found) that the employer had offered the 4.5% wage increase as part of an overall action, which included the de-recognition, to eliminate the power of the union, and thereby render membership pointless. The industrial tribunal had, therefore, rightly found that the employer had acted in breach of s 23(1)(a). 170 Palmer and Wilson were then appealed to the House of Lords (Associated Newspapers Ltd v Wilson and Associated British Parts v Palmer and Others [1995] 2 AC 454) and the appeals were allowed. The employers argued a new point of statutory construction on the appeals. They contended that the denial of the pay rise to the employees was an omission to act and, hence, did not amount to the taking of action within the meaning of s 23(1)(a). This argument was accepted by Lord Bridge, with whom Lords Keith and Lord Browne-Wilkinson agreed. The statutory construction point was their primary basis for allowing the appeals. Lord Lloyd and Lord Slynn disagreed with the majority view on that construction point. 171 On the question of the employer's purpose, Lord Lloyd and Lord Slynn allowed the appeals on the primary basis that the necessary purpose of the employers had not been established. Lord Bridge and Lord Keith regarded this as a secondary basis for allowing the appeals. Lord Browne-Wilkinson doubted whether the appeals should be allowed on this basis. 172 Lord Lloyd dealt with the question in some detail. His view was directly adopted by Lord Bridge, and indirectly adopted by Lord Keith (who expressly agreed with Lord Bridge). 173 In relation to Wilson, Lord Lloyd analysed the reasons of the Industrial Tribunal and held that it made no relevant finding as to the purpose of the pay rise, as distinct from the purpose of de-recognition of the union. He then determined that there was no evidence of the necessary purpose in relation to withholding the pay rise from employees who did not sign the new contracts. His Lordship said at 484: 'The only evidence as to the employers' purpose in withholding the 4.5 per cent came from the group managing director, Mr Hardy. He said that he wanted as many members as possible to sign up so that everybody should know where they were. Over and over again he was asked in cross-examination whether it was not also a disguised attack on membership of the union. Over and over again he replied that it was not. He was not concerned with membership of the union; he was concerned only to get rid of collective bargaining.' 174 He later said at 484-5: '… the Court of Appeal was much influenced by the observations of Knox J in Discount Tobacco & Confectionery Ltd v Armitage [1995] I.C.R. 431, a decision which the court regarded as unquestionably correct. It may well have been correct on its facts. Having rejected the evidence given by Mrs Armitage's employers, the tribunal was entitled to infer that the real reason for her dismissal was that she was a member of the union and made use of the union's services to press her complaint. But, like Lord Bridge of Harwich, I cannot regard the case as authority for the broad proposition that membership of the union and making use of the union's services are in some way to be equated. In my view, section 23(1)(a) was intended to protect trade union membership as such, that is to say, the right to associate as members of an independent trade union, just as section 23(1)(b) was intended to protect those taking part in trade union activities at an appropriate time. I can see no justification for reading in the words 'or making use of the essential services of the union' in section 23(1)(a) and still less justification for regarding trade union membership and the use of trade union services as being the same thing. They do not mean the same thing in section 23(1)(c). So why should they mean the same thing in section 23(1)(a)? I do not accept Knox J.'s view, at p. 16, that this would reduce section 23(1)(a) to vanishing point. Unions may flourish even though they are not recognised for collective bargaining. In so far as the industrial tribunal relied on the broad statement in the Armitage case in reaching their "robust" conclusion in paragraph 62 (see per Dillon L.J., at p. 110), they erred in law. For the above reasons, which are substantially the same as those given by the majority of the Employment Appeal Tribunal [1992] I.C.R. 681, I would allow this appeal. It was for the employers under section 25(1) of the Act to show the purpose for which they took action against the applicant. This they did. There was no evidence on which the tribunal could find that the purpose was to deter the applicant from remaining a member of the union. Accordingly, the applicant has failed to show that he has a remedy under section 23(1)(a).' 175 In relation to Palmer, the employer argued that the purpose of offering a pay rise to those who signed new contracts was to achieve flexibility whereby individual merit could be rewarded. The fact that the pay rise might persuade employees to abandon union representation was only a means to that end. Lord Lloyd said at 486-7: 'In the context of this case the distinction between means and ends is narrow and somewhat artificial. In my view, the industrial tribunal were entitled to hold that the true purpose of paying the extra to those who signed the new contracts was to persuade as many employees as possible to abandon union representation in wage negotiations. But where does that lead? Union representation is not something to which, as individuals, they were entitled. They have the right not to have action taken against them for the purpose of deterring them from remaining members of the union. But the industrial tribunal made no finding in paragraph 10, or elsewhere, that that was the employers' purpose. Nor would such a conclusion have been justified on the evidence. The power and the influence of the union might well be diminished if enough members opted for individual contracts. Membership of the union might thus become less attractive. Ms. Dean speaks of the union "wither[ing] on the vine:" see p. 110. But it is Parliament, not the employers, that has, in this respect, made membership of the union less attractive by repealing sections 11 to 16 of the Act of 1975. The language of section 23(1)(a) must clearly bear the same meaning now as it did when it was first enacted as section 53 of the Act of 1975. It did not change its meaning when sections 11 to 16 of the Act were repealed. The applicants cannot, by giving section 23(1)(a) a meaning much wider than its terms justify, seek to restore rights which the unions thereby lost. In the course of giving the judgment of the Employment Appeal Tribunal Wood J. said, at p. 113: "Prior to the repeal of sections 11 to 16 of the Employment Protection Act 1975 by section 19(b) of the Employment Act 1980, a trade union had rights against an employer and therefore in order to ensure that an employer negotiate with a trade union there was no need for an employee to have rights additional to that of membership. It seems to us therefore that the legislature could not have intended that the words of section 23(1)(a), which derive from section 53 of the Act of 1975, should include those additional rights by implication in the phrase 'being a member'. There is no phraseology which refers to the exercising of rights of membership and in any event such rights would exist between members and not with reference to a third party - the employer." I agree with the reasoning. In so far as it conflicts with the broad proposition stated by Knox J in the Armitage case, I prefer the reasons of the Employment Appeal Tribunal in the instant case. There is no evidence on which the tribunal could have found that the employers' purpose was to prevent or deter the applicants from remaining members of the union.' 176 The way in which Lord Lloyd approached the scope of the protection afforded to union membership was thus governed by the statutory history. When s 23(1)(a) was introduced there was already statutory recognition of the function of the union in collective bargaining. Consequently, it was not likely that the same function was also protected by s 23(1)(a). 177 Lord Bridge also referred to the statutory history, at 476, as follows: 'Sections 11 to 16 of the Act of 1975 embodied a complex statutory code, the details of which do not now matter, which enabled a trade union to obtain 'recognition' by an employer for the purpose of collective bargaining with him on behalf of its members. But these provisions were repealed by the Employment Act 1980 and since then an employer has been at liberty to decide for himself whether or not to enter into or to continue in force an agreement with a trade union providing for collective bargaining.' 178 He then described his analysis of the circumstances of each appeal at 476 as follows: 'Whatever the purpose of A.N. [Associated Newspapers] may have been, having given notice to terminate their house agreement with the N.U.J. [National Union of Journalists], in offering an inducement to employees to sign individual contracts before the notice expired, the only witness called by the employers before the industrial tribunal gave evidence that the management had no intention of deterring their employees from continuing as members of the N.U.J.; the industrial tribunal's decision does not indicate that they rejected this evidence and in fact the majority of the employees have continued to be members of the N.U.J. ever since. In Associated British Ports v Palmer it was plain that the employers were seeking by means of an attractive offer to induce their employees voluntarily to quit the union's collective bargaining umbrella and to deal in future directly with the employers over their terms and conditions of employment, but I can see nothing in the evidence recited in the industrial tribunal's decision to suggest that the employers were seeking to induce the employees to give up their union membership.' 179 This analysis then raised the correctness of the reliance by the Industrial Tribunal on the proposition it regarded as established in Armitage, namely, that there is no genuine distinction between membership of a union and making use of the essential services offered by a union, such as representation. His Lordship said at 478: 'I do not question the correctness of the Employment Appeal Tribunal's decision in the Armitage case. Once the industrial tribunal had rejected the employers' evidence as to their reason for Mrs. Armitage's dismissal, it was an obvious inference that she had been dismissed because the employers resented the fact that she had invited the union to intervene on her behalf. In this narrow context the reasoning of Knox J. may have been a legitimate means of refuting a particular argument advanced by counsel for the employers. But if the passage cited is held to establish as a general proposition of law that, in the context of section 23(1)(a) and section 58(1)(a) of the Act of 1978 membership of a union is to be equated with using the 'essential' services of that union, at best it puts an unnecessary and imprecise gloss on the statutory language, at worst it is liable to distort the meaning of these provisions which protect union membership as such. A union which has a collective bargaining agreement with employers is in a position to offer its members the service of negotiating their terms and conditions of employment. A union which has no such agreement with employers is unable to offer its members that service, but is able to offer them other important and valuable services. Thus, it cannot be said that the service of collective bargaining is an essential union service or that membership of a union unable to offer that service is valueless or insignificant. Accordingly, it seems to me that the reasoning of Knox J. in the Armitage case could not properly be applied to the circumstances of the two cases with which we are concerned. Even if the construction put on section 23(1)(a) by the majority in National Coal Board v Ridgway [1987] I.C.R. 641 were correct, I do not think that in either of these cases the withholding by the employers from employees who did not sign individual contracts of the benefits conferred on those who did was by itself capable of supporting a finding that the employers' purpose was to deter those in the latter group from being members of a union or to penalise them for being such members.' 180 His Lordship did not purport to consider the issue "in any detail". He was concerned that if union membership was read to mean more than holding a union card, a gloss would be placed on the language of the section. This gloss was "unnecessary and imprecise". However, to conclude that the construction is unnecessary is to make an assumption about the activities of the union for which members should have statutory protection. It seems to involve a value judgment unsupported by reference to the provisions of the statute. It is a value judgment which is, at least, contestable. 181 In South Africa, for instance, the Constitution provides, at s 23(5): 'Every trade union, employers' organisation and employer has the right to engage in collective bargaining.' 182 This section provides constitutional protection of a right of a union in South Africa to engage in collective bargaining. By so providing such protection, the South African legal system recognises that collective bargaining is a central function of unions. 183 On the question of imprecision, it should be noted that in Armitage Knox J described the relevant services provided by the union variously, and at one point as a "very important" incident of union membership. The approach adopted by Knox J was a fairly fluid and flexible approach, which was likely to be workable in a practical sense. By selecting for consideration only the concept of "essential services" Lord Bridge did not rule on the more workable descriptions used by Knox J. 184 Lord Slynn dealt first with Wilson. The reasons of the industrial tribunal showed that the purpose of de-recognising the union was to deter journalists from being union members. But as this was not directed to journalists as individuals, it could not amount to a breach of s 23(1)(a). The only conduct which could attract the section was withholding the 4.5 per cent pay increase. His Lordship said at 481: 'In my opinion withholding an increase of salary from those who remain members of the union could amount to action forbidden by this subsection if the relevant purpose is established. In the present case at the end of the day I am not satisfied that it was so established. The aim of the derecognition was to ensure that contracts could be negotiated individually; that was achieved independently of and prior to the acceptance of the terms of the new contract and prior to the date when the appellants failed to pay the 4.5 per cent increase to those who did not sign. Collective bargaining came to an end whether all or none of the journalists signed new contracts. The employers' case was that they required new contracts so as to make it clear what was the position after collective bargaining came to an end. Such a justification or "purpose" may, as Mr Hendy submitted, have to be looked at critically if the consequence is likely to be a reduction in union membership but in this case I do not think that one should disregard the provision of the contract that journalists could belong to a union or the fact that many continued to do so. I do not consider that there was here evidence that the employers' purpose in paying a salary differential was to prevent or deter union membership even if derecognition in itself might make the union less attractive to members or to potential members.' 185 As to the appeal in Palmer, Lord Slynn said at 482-3: 'In this case, too, employees retained the right to membership of a trade union and the majority of those who accepted personal contracts remained members of the union. Those who accepted the personal contract, however, lost the right to representation by a trade union in their dealings with the employers. The distinction between this case and Associated Newspapers Ltd v Wilson is that here there was no total derecognition of the union for collective bargaining purposes but employees were given a choice as to whether they retained or gave up their representation. Like Dillon L.J., in the Court of Appeal [1994] I.C.R. 97 I do not consider that action "preventing or deterring" someone from being a member of a trade union or penalising him for doing so is limited to action taken in respect of his status as a member - the fact that he has or wants to have a union membership card. It may include action to prevent or deter him from, or action penalising him for, exercising his rights as a member of a trade union. The exercise of such rights is not necessarily included in the phrase 'taking part in the activities' of a trade union, words more apt to cover such activities as attending union meetings or acting as an official of the union. In the present case, however, the right to be represented in collective bargaining by the union was a right granted contractually by the employers which could be terminated on notice. Ceasing to recognise the union was not an action taken to prevent or deter the employees from exercising their rights as members of the trade union. The fact that in Associated British Ports v. Palmer, unlike Associated Newspapers Ltd. v. Wilson, the workers had the option whether to go on being represented by the union or to accept a personal contract did not mean that those who accepted a personal contract were being prevented or deterred from exercising their union rights or penalised for doing so. In any event it does not seem to me that, having accepted that the reason that the employers needed flexibility and more efficient conduct of their business was an honest reason, the tribunal was entitled on the evidence to say that flexibility was their "objective" rather than their "purpose". Their purpose and their objective were to achieve flexibility; and the means to achieve it were by offering a higher salary for those who were prepared to give up union representation.' [emphasis added] 186 His Lordship took a wider view of the operation of the concept of union membership than did Lord Bridge, Lord Keith and Lord Lloyd. In the end, however, he resolved the appeals on a factual basis. Even on his view of the meaning of union membership, in these cases the purpose established on the evidence was not the purpose of preventing or deterring the employees from being members of the union. 187 Lord Browne-Wilkinson said at 479: 'I prefer to express no view on the membership issue also discussed by my noble and learned friend [Lord Bridge]. As at present advised I would not share his view on the issue but it is unnecessary to express any concluded view since the decision of this case does not turn on that point.' 188 The judgment of Lord Lloyd in Wilson was referred to by the Full Court in BHP v AWU in the course of an appeal from the interlocutory orders made by Gray J. The Full Court considered whether there was a serious issue to be tried that the employer had induced employees to stop being members of the union in breach of s 298M of the Act. The Court referred to Lord Lloyd's distinction between a concern with membership of the union on the one hand, and a concern to get rid of collective bargaining on the other. The Full Court also referred to his view that the difference between means and ends is narrow and artificial. The passages referred to by the Full Court are contained within the extracts set out in pars 173 and 174 of these reasons. 189 The Full Court also referred for assistance to the following passages from the United States case of American Ship Building v Labour Board 380 US 300 (1965). The United States legislation required consideration of the motivation of the employer in its conduct towards union members, but the Court regarded the concept of union membership as involving more than the employee holding a union ticket. At pars 73 - 75 the Full Court said: '[73] In American Ship Building v Labor Board, Stewart J, delivering the opinion of the Court, said (at 311): "Section 8(a)(3) prohibits discrimination in regard to tenure or other conditions of employment to discourage union membership. Under the words of the statute there must be both discrimination and a resulting discouragement of union membership. It has long been established that a finding of violation under this section will normally turn on the employer's motivation … Thus when the employer discharges a union leader who has broken shop rules, the problem posed is to determine whether the employer has acted purely in disinterested defense of shop discipline or has sought to damage employee organization. It is likely that the discharge will naturally tend to discourage union membership in both cases, because of the loss of union leadership and the employees' suspicion of the employer's true intention. But we have consistently construed the section to leave unscathed a wide range of employer actions taken to serve legitimate business interests in some significant fashion, even though the act committed may tend to discourage union membership … Such a construction of s 8(a)(3) is essential if due protection is to be accorded the employer's right to manage his enterprise." [74] Stewart J went on the say (at 311 - 312): "This is not to deny that there are some practices which are inherently so prejudicial to union interests and so devoid of significant economic justification that no specific evidence of intent to discourage union membership or other antiunion animus is required. In some cases, it may be that the employer's conduct carries with it an inference of unlawful intention so compelling that it is justifiable to disbelieve the employer's protestations of innocent purpose." [75] Stewart J added (at 313), the following: "There was not the slightest evidence and there was no finding that the employer was actuated by a desire to discourage membership in the union as distinguished from a desire to affect the outcome of the particular negotiations in which it was involved. We recognize that the 'union membership' which is not to be discouraged refers to more than the payment of dues and that measures taken to discourage participation in protected union activities may be found to come within the proscription. Radio Officers' Union v. Labor Board, (1954) 347 US 17, at 39-40. However, there is nothing in the Act which gives employees the right to insist on their contract demands, free from the sort of economic disadvantage which frequently attends bargaining disputes. Therefore, we conclude that where the intention proven is merely to bring about a settlement of a labor dispute on favourable terms, no violation of s 8(a)(3) is shown."' [emphasis added] 190 The Full Court concluded: '[76] The stance taken to comparable legislation in England and the United States can illuminate our approach to the meaning of s 298M. By this approach, the essential question, one of fact, is the appropriate characterisation of the conduct of BHPIO, viewed, however, in its full context. We agree with Lord Lloyd that, in this connection, the distinction between means and ends may be too narrow and artificial. Although it is accepted by the respondent that no explicit relevant threat or promise was made, it is plain that the operation of s 298M is not so limited; that is, the inducing conduct may take another form - that is, "otherwise", as the words in parenthesis state.' 191 The Full Court did not make a choice between what appear to be conflicting approaches to the concept of union membership. Rather, the Full Court saw the question in that case as one of fact, namely, the characterisation of the conduct of the employer. The focus of attention, and the matter to which this conclusion was directed was whether it was arguable that the conduct in question amounted to inducement under s 298M. Thus, the judgment does not advance the question of the meaning of the concept of union membership for the purposes of the present case. In any event, the appeal was determined before the European Court delivered its judgment in the Wilson and Palmer matters.

The European Court of Human Rights. 192 The Wilson and Palmer appeals had a sequel in the European Court, Case of Wilson & the National Union of Journalists, Palmer, Wyeth & the National Union of Rail, Maritime & Transport Workers; Doolan & others v. the United Kingdom (unreported, Eur Ct HR, application nos 30668/96, 30671/96 and 30678/96, Strasbourg, 2 July 2002). In this forum, the case concerned the interpretation of article 11 of the European Convention which provided:. 'Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade union for the protection of his interests.' 193 It will be recalled that this article mirrors the terms of article 22 of the International Covenant on Civil and Political Rights to which Australia is a party. 194 The European Court described the applicants' arguments, at par 40, as follows: 'The applicants submitted that the right to union membership "for the protection of his interests" under Article 11 necessarily involved the rights of every employee (1) to be represented by his or her union in negotiations with the employer, and (2) not to be discriminated against for choosing to avail him- or herself of the right to be represented. In this connection, the applicants referred to the findings and recommendations of the Committee of Experts under the European Social Charter and of the ILO's Committee on Freedom of Association (see paragraphs 32-33 and 37 above), that the right of union representation is inherent in the right of union membership (as provided for in Article 5 of the Charter and in the ILO Convention).' [emphasis added] The European Court then referred to the judgment of the House of Lords, at par 40, as follows: 'However, the House of Lords' judgment made it plain that domestic law protected only the right of union membership per se, and not any of the incidents of membership, such as collective representation in contract negotiations. Unless it could be shown that an employer acted with the intention to prevent, deter or penalise membership (per se) of a union, there was nothing to prevent the employer discriminating against an employee who chose to take advantage of one of the incidents of membership, such as collective representation.' 195 The European Court decided, at par 46 - 48, as follows: '46. … [I]t is of the essence of the right to join a trade union for the protection of their interests that employees should be free to instruct or permit the union to make representations to their employer or to take action in support of their interests on their behalf. If workers are prevented from so doing, their freedom to belong to a trade union, for the protection of their interests, becomes illusory. It is the role of the State to ensure that trade union members are not prevented or restrained from using their union to represent them in attempts to regulate their relations with their employers. 47. In the present case, it was open to the employers to seek to pre-empt any protest on the part of the union or their member against the imposition of limits on voluntary collective bargaining, by offering those employees who acquiesced in the termination of collective bargaining substantial pay rises, which were not provided to those who refused to sign contracts accepting the end of union representation. The corollary of this was that United Kingdom law permitted employers to treat less favourably employees who were not prepared to renounce a freedom that was an essential feature of union membership. Such conduct constituted a disincentive or restraint on the use by employees of union membership to protect their interests. However, as the House of Lords' judgment made clear, domestic law did not prohibit the employer from offering an inducement to employees who relinquished the right to union representation, even if the aim and outcome of the exercise was to bring an end to collective bargaining and thus substantially to reduce the authority of the union, as long as the employer did not act with the purpose of preventing or deterring the individual employee simply from being a member of a trade union. 48. Under United Kingdom law at the relevant time it was, therefore, possible for an employer effectively to undermine or frustrate a trade union's ability to strive for the protection of its members' interests. The Court notes that this aspect of domestic law has been the subject of criticism by Social Charter's Committee of Independent Experts and the ILO's Committee on Freedom of Association (see paragraphs 32-33 and 37 above). It considers that, by permitting employers to use financial incentives to induce employees to surrender important union rights, the respondent State failed in its positive obligation to secure the enjoyment of the rights under Article 11 of the Convention. This failure amounted to a violation of Article 11, as regards both the applicant unions and the individual applicants.' [emphasis added] 196 It follows from this decision that the right to join a trade union provided for by the European Convention embraces a right to have a union represent and take action in support of the interests of the particular member. In an article analysing the effect of the decision, Professor Ewing said: 'The third important feature of the case is the holding that although Article 11 does not encompass collective bargaining, nevertheless it is of the essence of the right to join trade unions for the protection of their interests that employees "should be free to instruct or permit the union to make representations to their employ or to take action in support of their interests on their behalf". But not only that: it is said to be "the role of the State to ensure that trade union members are not prevented or restrained from using their union to represent them in attempts to regulate their relations with their employer". Note the two dimensions: not just the right to have the union make representations (the weaker dimension), but a right to be represented by the union in regulating relations with the employers (the strong dimension). The corollary of this positive right of two dimensions is that workers should not be penalised where they exercise their right to be represented by a trade union.' Ewing KD, 'The implications of Wilson and Palmer', Industrial Law Journal, vol 32, No. 1, March 2003, pp 6-7. 197 In Australian law, the right to join a union without attracting adverse consequences is conferred by s 298L(1)(a). This section should be construed conformably with Australia's international obligations under the Freedom of Association Convention, the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights. Those obligations extend to protecting union members from discrimination based on the actions taken by a union as an incident of the membership of the person of the union.

Canada 198 The Supreme Court of Canada has also given helpful consideration to the interrelationship between the freedom of association and the right to join a union. The Canadian Charter of Rights and Freedoms s 2(d) (the Charter) guarantees freedom of association as a 'Fundamental Freedom'. In Alberta, legislation was passed which prohibited strikes and imposed compulsory arbitration to resolve impasses in collective bargaining in relation to the employment of public servants, fire fighters, hospital employees and police officers. The Supreme Court of Canada in Reference Re Public Service Employee Relations Act (Alta.) [1987] 1 SCR 313 had to determine whether the legislation violated the Charter guarantee of freedom of association. Dickson CJ with whom Wilson J agreed, held that the legislation did violate the guarantee of freedom of association. The majority (Beetz, McIntyre, Le Dain and La Forest JJ) held that it did not. The Chief Justice explained one issue, at 335-336, thus: 'Second, what approach is taken to the nature of freedom of association? More specifically, has the relevant tribunal adopted what I shall refer to as a "constitutive" definition of freedom of association whereby freedom of association entails simply the freedom to combine together but does not extend to the freedom to engage in the activities for which the association was formed? Alternatively, has a wider definition been adopted to the effect that freedom of association embodies both the freedom to join together and the freedom to pursue collective activities? In this appeal, the respondent adopts the former view while the appellants adopt the latter.' 199 His Honour then explained the division of opinion on the question in Canadian case law at 338-339 as follows: 'Canadian jurisprudence on the nature and scope of freedom of association is divided. On the one hand, the British Columbia Court of Appeal and the Federal Court of Appeal have endorsed a constitutive definition of freedom of association, concluding that collective bargaining and strike activity are not protected by freedom of association. … On the other hand, the Ontario Divisional Court, and the Saskatchewan Court of Appeal have adopted broader definitions, holding that freedom of association includes the freedom to pursue common purposes and to engage in collective activities, and is not merely the freedom to form and join associations.' 200 His Honour, at 339-340, referred to a passage in the judgment of Mahoney J (with whom Hugessen J concurred) in Public Service Alliance of Canada v The Queen [1984] 2 FC 889, 895 as representative of the narrow view. That passage reads as follows: 'The right of freedom of association guaranteed by the Charter is the right to enter into consensual arrangements. It protects neither the objects of the association nor the means of attaining those objects. ... I do not think it desirable to attempt to catalogue the rights and immunities inherent in a trade union's guaranteed freedom of association. Clearly, collective bargaining is, or should be, the primary means by which organized labour expects to attain its principal object: the economic betterment of its membership. However fundamental, it remains a means and, as such, the right to bargain collectively is not guaranteed by paragraph 2(d) of the Charter, which guarantees freedom of association.' 201 As representative of the wider view, his Honour, at 341, cited a passage from the judgment of Galligan J in Re Service Employees' International Union, Local 204 and Broadway Manor Nursing Home (1983) 44 OR (2d) 392, 409. The passage reads as follows: 'But I think that freedom of association if it is to be a meaningful freedom must include freedom to engage in conduct which is reasonably consonant with the lawful objects of an association. And I think a lawful object is any object which is not prohibited by law... . The purpose of an association of workers in a union is clear -- it is to advance their common interests. If they are not free to take such lawful steps that they see as reasonable to advance those interests, including bargaining and striking, then as a practical matter their association is a barren and useless thing. I cannot imagine that the Charter was ever intended to guarantee the freedom of association without also guaranteeing the freedom to do that for which the association is intended. I have no hesitation in concluding that in guaranteeing workers' freedom of association the Charter also guarantees at the very least their freedom to organize, to choose their own union, to bargain and to strike.' 202 His Honour then reviewed the US authorities and summarised the position, under US law, at 347-348 as follows: 'In summary, my understanding of the United States authorities on freedom of association and its application in the context of labour relations is this: Freedom of association is implicitly guaranteed by the First Amendment and protects the concerted pursuit of ends which are explicitly protected by the First Amendment, namely speech, assembly and petition; in the trade union context, the First Amendment's freedom of association protects the right to organize and select representatives for collective bargaining; it also protects the activities of trade unions in respect of securing legal representation for their members; nevertheless, freedom to strike in the public sector is not protected by the implied freedom of association in the First Amendment.' 203 Next, his Honour turned to international law, at 348, as follows: 'International law provides a fertile source of insight into the nature and scope of the freedom of association of workers. Since the close of the Second World War, the protection of the fundamental rights and freedoms of groups and individuals has become a matter of international concern. A body of treaties (or conventions) and customary norms now constitutes an international law of human rights under which the nations of the world have undertaken to adhere to the standards and principles necessary for ensuring freedom, dignity and social justice for their citizens. The Charter conforms to the spirit of this contemporary international human rights movement, and it incorporates many of the policies and prescriptions of the various international documents pertaining to human rights. The various sources of international human rights law--declarations, covenants, conventions, judicial and quasi-judicial decisions of international tribunals, customary norms--must, in my opinion, be relevant and persuasive sources for interpretation of the Charter's provisions.' 204 The Chief Justice referred to the Universal Declaration of Human Rights G/A-Res. 217A (III) UN. Doc. A/810, (10 December 1948), the International Covenant on Economic, Social, and Cultural Rights, the International Covenant on Civil and Political Rights, and the Freedom of Association Convention. His Honour also referred to interpretations by International Labour Organisation bodies, including the Committee on Freedom of Association, the Committee of Experts, and Commissions of Inquiry. He summarised the situation, at 358-359, as follows: 'The most salient feature of the human rights documents discussed above in the context of this case is the close relationship in each of them between the concept of freedom of association and the organization and activities of labour unions. As a party to these human rights documents, Canada is cognizant of the importance of freedom of association to trade unionism, and has undertaken as a binding international obligation to protect to some extent the associational freedoms of workers within Canada. Both of the U.N. human rights Covenants contain explicit protection of the formation and activities of trade unions subject to reasonable limits. Moreover, there is a clear consensus amongst the I.L.O. adjudicative bodies that Convention No. 87 goes beyond merely protecting the formation of labour unions and provides protection of their essential activities -- that is of collective bargaining and the freedom to strike.' 205 With this variety of views in mind, the Chief Justice proceeded to deal with the meaning of the guarantee of freedom of association in the Charter. He first rejected the constitutive approach, at 362-363, as follows: 'A wide variety of alternative interpretations of freedom of association has been advanced in the jurisprudence summarized above and in argument before this Court. At one extreme is a purely constitutive definition whereby freedom of association entails only a freedom to belong to or form an association. On this view, the constitutional guarantee does not extend beyond protecting the individual's status as a member of an association. It would not protect his or her associational actions. In the trade union context, then, a constitutive definition would find a prima facie violation of s. 2(d) of the Charter in legislation such as s. 2(1) of the Police Officers Act which prohibits membership in any organization affiliated with a trade union. But it could find no violation of s. 2(d) in respect of legislation which prohibited a concerted refusal to work. Indeed, a wide variety of trade union activities, ranging from the organization of social activities for its members, to the establishment of union pension plans, to the discussion of collective bargaining strategy, could be prohibited by the state without infringing s. 2(d). The essentially formal nature of a constitutive approach to freedom of association is equally apparent when one considers other types of associational activity in our society. While the constitutive approach might find a possible violation of s. 2(d) in a legislative enactment which prohibited marriage for certain classes of people, it would hold inoffensive an enactment which precluded the same people from engaging in the activities integral to a marriage, such as cohabiting and raising children together. If freedom of association only protects the joining together of persons for common purposes, but not the pursuit of the very activities for which the association was formed, then the freedom is indeed legalistic, ungenerous, indeed vapid.' 206 His Honour then sought to define the interests which the guarantee protected. He said, at 363: 'In my view, while it is unquestionable that s. 2(d), at a minimum, guarantees the liberty of persons to be in association or belong to an organization, it must extend beyond a concern for associational status to give effective protection to the interests to which the constitutional guarantee is directed. In this respect, it is important to consider the purposive approach to constitutional interpretation mandated by this Court' 207 He continued later, at 368: 'The role of association has always been vital as a means of protecting the essential needs and interests of working people. Throughout history, workers have associated to overcome their vulnerability as individuals to the strength of their employers. The capacity to bargain collectively has long been recognized as one of the integral and primary functions of associations of working people. While trade unions also fulfil other important social, political and charitable functions, collective bargaining remains vital to the capacity of individual employees to participate in ensuring fair wages, health and safety protections, and equitable and humane working conditions.' 208 His Honour then concluded, at 371: 'Under our existing system of industrial relations, effective constitutional protection of the associational interests of employees in the collective bargaining process requires concomitant protection of their freedom to withdraw collectively their services, subject to s. 1 of the Charter.' 209 The Chief Justice, consequently, held that the prohibition on taking strike action infringed the guarantee of freedom of association. 210 McIntyre J came to the opposite conclusion, but also considered whether the guarantee of freedom of association extended to the activities of a union. He identified six possible definitions of the scope of freedom of association. They were as follows, at 399-402: '… To begin with, it has been said that freedom of association is limited to a right to associate with others in common pursuits or for certain purposes. Neither the objects nor the actions of the group are protected by freedom of association. … … A second approach provides that freedom of association guarantees the collective exercise of constitutional rights or, in other words, the freedom to engage collectively in those activities which are constitutionally protected for each individual. … It will be seen that this approach guarantees not only the right to associate but as well the right to pursue those objects of association which by their nature have constitutional protection. A third approach postulates that freedom of association stands for the principle that an individual is entitled to do in concert with others that which he may lawfully do alone, and conversely, that individuals and organizations have no right to do in concert what is unlawful when done individually. … A fourth approach would constitutionally protect collective activities which may be said to be fundamental to our culture and traditions and which by common assent are deserving of protection. … A fifth approach rests on the proposition that freedom of association, under s. 2(d) of the Charter, extends constitutional protection to all activities which are essential to the lawful goals of an association. … The sixth and final approach so far isolated in the cases, and by far the most sweeping, would extend the protection of s. 2(d) of the Charter to all acts done in association, subject only to limitation under s. l of the Charter.' 211 McIntyre J, at 404, rejected the fifth and sixth approaches because, to accept them: 'would be to accord an independent constitutional status to the aims, purposes, and activities of the association, and thereby confer greater constitutional rights upon members of the association than upon non-members.' 212 He accepted the third approach, at 408‑409, as follows: ' … This approach, in my view, is an acceptable interpretation of freedom of association under the Charter. It is clear that, unlike the fifth and sixth approaches, this definition of freedom of association does not provide greater constitutional rights for groups than for individuals; it simply ensures that they are treated alike. If the state chooses to prohibit everyone from engaging in an activity and that activity is not protected under the Constitution, freedom of association will not afford any protection to groups engaging in the activity. Freedom of association as an independent right comes into play under this formulation when the state has permitted an individual to engage in an activity and yet forbidden the group from doing so. Moreover, unlike the fourth approach, the inquiry is firmly focussed on the fundamental purpose of freedom of association, namely, to permit the collective pursuit of common goals. … Finally, this approach fully realizes the value or purpose of association. Activities which the state permits an individual to pursue may be pursued in a group. Associations engaged in scientific, educational, recreational, and charitable pursuits would receive protection even though these activities or pursuits may not be independently protected by the Charter, provided these activities are not forbidden at law to individuals. The objective of guaranteeing the freedom of individuals to unite in organizations of their choice for the pursuit of objects of their choice would be achieved.' 213 He concluded, at 409: 'It follows from this discussion that I interpret freedom of association in s. 2(d) of the Charter to mean that Charter protection will attach to the exercise in association of such rights as have Charter protection when exercised by the individual. Furthermore, freedom of association means the freedom to associate for the purposes of activities which are lawful when performed alone. But, since the fact of association will not by itself confer additional rights on individuals, the association does not acquire a constitutionally guaranteed freedom to do what is unlawful for the individual.' 214 It followed from this reasoning that the right to strike was not protected by the guarantee of freedom of association, because the right was not independently protected under the Charter, and his Honour held that it was not lawful under Canadian law for workers to refuse to work. The majority agreed with McIntyre J as to the result of the case. In a short judgment they did not touch on the issue of relevance to the present case. 215 The significance of the discussion by Dickson CJ with Wilson J and McIntyre J is that they all accept that freedom of association extends beyond freedom to join a union. The Chief Justice and Wilson J held that collective bargaining is an essential element of freedom of association and the right to strike is a concomitant of the function of collective bargaining. McIntyre J did not go so far in relation to a right to strike, but accepted that lawful actions of members when undertaken in association were protected by the guarantee of freedom of association in the Charter.

Conclusion - The Meaning of Membership 216 Thus, where s 298L(1)(a) speaks of conduct carried out because a person is a member of a union, it encompasses conduct carried out because of the activities of the union as an incident of that person's membership of the union. 217 This meaning is supported by the history and context of the section. It is supported by the Australian decisions in Palmerston, Gilbertson, Qenos and Elliott. It is consistent with the European Court's recent interpretation of Article 11 of the European Convention which mirrors Australia's international obligations under the Freedom of Association Convention and the International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights. And it conforms with the concept of freedom of association in the South African Constitution and with a significant body of judicial opinion in the United Kingdom, and Canada in relation to comparable laws.

Reason for the conduct - THE FACTS 218 It was found earlier that Belandra had refused to reemploy the Belandra employees and/or altered the position of those employees to their prejudice. Based on the discussion as to the scope of the proscribed reason under s 298L(1)(a) above, it is now necessary to determine whether Belandra acted for a proscribed reason. Belandra's conduct is presumed to have been carried out for the proscribed reason alleged unless Belandra proves otherwise: s 298V. Further, the alleged reason need only be one reason of a number of reasons actuating the conduct. It is not necessary that the prohibited reason be the sole or dominant reason for the conduct: s 298K(1), Burnie at par 15, and Geraldton at par 224. 219 In affidavits sworn on behalf of Belandra, Mr Catalfamo, Mr Cabral, and Mr Oravec expressly denied that Belandra acted for the reason that the employees were members of the applicant, or that the employees were entitled to the benefit of the 2000 Agreement. Mr Catalfamo described the reasons in his affidavit sworn on 4 September 2002, as follows: '3. Immediately after the fire, I and my fellow directors of Belandra (and the other businesses at Brooklyn) were traumatised by the fire and its effect upon our business and employees. However, as things settled down, I started to review the performance of Belandra (along with the other businesses) and its future business direction. I realised that initially, I and my fellow directors had been close to the meat production process and had been intimate with its operations. However, over a period of time, we had become occupied with other aspects of the business (such as marketing and product development), which meant that we no longer had the production expertise we once held. In August / September 2001, I came to the view that we no longer had sufficient expertise to effectively oversee a meat production operation, and that we should appoint either another person or company to do this. 4. Several things happened after the fire, which influenced my views. Firstly, shortly after the fire the Commonwealth Bank of Australia ("CBA"), the bankers for Belandra (and Belandra Trading and EM Processors), informed us that the accounts of those companies were being placed into asset management. At the time these accounts had several bank facilities and although we were allowed to operate within these facilities and use the reserves built up in the accounts, the CBA took the following actions: (a) The payment by the insurance company of $5 million to tide us over while the claims were being processed was frozen by the CBA for a number of weeks; (b) An approved loan facility of $15 million to purchase SBA was withdrawn immediately; (c) Sims Lockwoods were appointed by the CBA (at our cost) to prepare an independent report on the financial viability of the businesses; (d) The personal assets of the directors which formed the basis of guarantees and cross-guarantees for the businesses were also placed into asset management. For example, any major transactions from my personal account had to be approved by the CBA. 5. Further, in July 2001, Belandra received a workers' compensation bill of $1,549,046 for the 2000-2001 financial year. Belandra could not pay the premium as it fell due and as a result we had to negotiate an extension of time to pay the premium, which resulted in penalties and interest. After this, I and my fellow directors became convinced that unless drastic action was taken by Belandra, it would go broke and cease operations. Ultimately, I and my fellow directors decided that Belandra would not resume operations as a meat processor. Similar decisions were made by the directors of Belandra Trading and EM Processors in the period August / September 2001. 6. In early September 2001, I had a meeting with Doug Shears who is the managing director of an agricultural company called ICM Pty Ltd. At that meeting I explained to him the concerns I had about Belandra and the other Brooklyn businesses. These concerns included: (a) the businesses had been crippled after the fire and changes were necessary if the businesses were to operate again; (b) the huge increase in WorkCover premiums; (c) EM Processors had taken over the P & R boning room, which had been poorly managed, and we were trying to make it productive. 7. In my meeting with Mr Shears I explained that I was looking for a different strategy for the businesses. Mr Shears helped me to understand that with my and Mr Cabral's expertise in the industry, we should look at reducing our involvement in different areas of the business and making more people responsible for these areas as their own businesses. Mr Shears called it a "virtual business". 8. After this meeting I had further discussions with Mr Cabral regarding the businesses. We developed a strategy that the only way to successfully manage the businesses was to develop what I call the 'Westfield Model'. Westfield builds shopping centres and provides the infrastructure of the building and services such as security, power, lighting etc. It then leases the space to tenants who are responsible for running the individual businesses. This allows Westfield to focus on building more shopping centres. In the same way, if Belandra and the other businesses moved away from the meat processing operations, it could focus on growing other areas of the business it was good at, such as designing and commissioning new meat processing plants, marketing livestock procurement and product research and development.' This evidence constituted Mr Catalfamo's evidence in chief on the subject. Mr Cabral's and Mr Oravec's evidence did not add significantly to the evidence of Mr Catalfamo on this issue. 220 It is not incumbent on Belandra to establish that there were other reasons for its conduct. Rather, it has to demonstrate that the proscribed reasons were not an actuating reason for its conduct. However, the existence of a cogent alternative explanation for the conduct might be an indicator that the proscribed reasons did not so actuate the conduct. In any event, Belandra undertook, in this case, to demonstrate alternative reasons for its conduct. The alternative reasons raised by Mr Catalfamo, in his affidavit of 4 September 2002 extracted above, were the desire to introduce the Westfield model, and the financial viability of Belandra. 221 I am not satisfied, however, that either of the proffered reasons actuated Belandra's decision to refuse to reemploy the workforce. The case put by Belandra, in essence, rested mainly on assertion where it was reasonable to expect that some supporting evidence would have been produced. For instance, to establish the asserted danger of Belandra's insolvency if the workforce was reemployed, calls for expert analysis of past accounting records and projections as to future trading outcomes based on assumptions of either maintaining or dispensing with the workforce. Instead of taking that course, Belandra relied on the increased costs of workers compensation premiums as the primary basis for establishing the danger of insolvency. Mr Cabral referred to the issue, in his affidavit sworn on 4 September 2002, as follows: '56. In making this decision for Belandra a number of financial factors were taken into account by the directors. These included the following: (a) Increased workers' compensation premiums. Belandra's premium at the Brooklyn site for beef slaughtering for the financial year 2000-2001 was $1,549,046, which represented a 493 per cent increase over the previous year when the premium was only $313,997. Now produced and shown to me and marked 'PGC-7' and 'PGC-8' are copies of the premium advice forms for the years 1999/00 and 2000/01. This level of workers' compensation premiums was severely undermining the financial viability of Belandra. Similar increases applied to the other companies. (b) The business of slaughtering and boning had become financially unviable because of the total costs involved. The increased workers' compensation premium for Belandra meant it was at risk of being insolvent. It could not have continued to operate as it had before the fire for much longer.' 222 The premium advices exhibited to the affidavit clearly showed that the increased premium was referable in part to a very large increase in the payroll on which the premium was calculated. So, in 1999‑2000 the premium was calculated on a payroll of $3,939,049, and in 2000-2001 the premium was calculated on a payroll of $9,445,412. The matter was taken up with Mr Catalfamo in reexamination. He said that there was an additional workers compensation surcharge of $1.5 million levied on Belandra in July 2001. He said that the information came to him from "our finance people". The course of questioning was then objected to by counsel for the applicant as it was a new issue arising in reexamination. However, as the issue had been raised by the Court, counsel for Belandra was invited by the Court to clarify the situation. Mr Catalfamo repeated the evidence that he had been told of a further surcharge by his finance director. No further evidence of the surcharge was tendered. Thus, even on the central piece of evidence relied upon to establish the financial unviability of Belandra, the best evidence was not called, and the nature, consequences, and circumstances of the surcharge were left in doubt. Even if the evidence of the surcharge had been clear, it alone would not have established that Belandra was in financial danger. 223 For similar reasons, I am not persuaded that the directors of Belandra formulated a different business approach which led them to refuse to reemploy the workforce. Mr Catalfamo's reference to the "Westfield model" was in the most general terms. In substance, the reference to the model did not provide a reason for not reemploying the workforce, it simply amounted to an alternative way of stating that Belandra would not do so. To the limited extent that the witnesses referred to the reasons for adopting the model, those reasons were not persuasive. For instance, it was said that the directors of Belandra had too little time to devote to the day to day operations of meat production and no longer had the necessary expertise to do so. Yet Mr Catalfamo and Mr Cabral sat at the apex of an organisational hierarchy. The evidence showed that even at the Brooklyn site the day to day operations of meat production were conducted by a team of managers and supervisors. Although Mr Cabral seemed to have a daily contact with the production process, Mr Catalfamo seems to have been involved only if major questions arose. In any event, if a major change in direction in the business was to be undertaken one would expect a coherent formulation of the plan and a detailed investigation into the feasibility of the change. After all, the business involved was obviously substantial. Although the financial details of the operation were not disclosed, the evidence does show that in 2000‑2001 the payroll of Belandra was over $9 million. Mr Catalfamo's analogy with the Westfield shopping centre business was so vague and inexact as to lack any real significance. In cross‑examination he was pressed with the obvious difference between the Belandra business and the Westfield business, namely, that the Belandra business was directed to the supply of goods, whilst Westfield owned and managed shopping centres through which goods were supplied by others. In the end he conceded: 'I mean if you take the whole model of Westfield in its entirety, sure it's different. But I've used Westfield in terms of discussing what my thoughts were for the future with union officials.' 224 This lack of formulation of the business model suggests that it was a superficial musing of Mr Catalfamo, which served as a convenient fog to soften the central reality that Belandra would not reemploy its workforce. To avoid calling a spade a spade, Mr Catalfamo called the decision not to reemploy the Belandra employees, the implementation of the Westfield model. It was probably for the same reason that, despite a promise made at a meeting on 17 September 2001, to Mr Bird, the secretary of the Victorian Branch of the applicant, Mr Catalfamo did not commit the Westfield model to paper. 225 The next question is whether Belandra has negatived the proscribed reasons. Mr Catalfamo addressed this issue directly in a number of answers during cross-examination. These answers are of central importance in determining this issue. However, they must be seen against the background of the industrial situation at Brooklyn. In his affidavit sworn on 14 August 2002, Mr Paul Davey, the Assistant Secretary of the Victorian Branch of the applicant, stated: 'Since 1996 the Brooklyn abattoir has been one of the most unsettled in my experience. … Each of the beef, mutton and EMP operations had featured a high level of ongoing industrial problems, requiring frequent use of the grievance and dispute-resolution procedures in the 1997 and 2000 Agreements.' 226 The grievance procedure referred to is contained in cl 8 of the 2000 Agreement which provides: '8 CONSULTATIVE ARRANGEMENTS 8.1 UNION SHOP COMMITTEE The employer recognises the Union Shop Committee as the appropriate forum in which all matters relating to the day to day operations will be raised initially with the union. 8.2 UNION/MANAGEMENT CONSULTATIVE COMMITTEE 8.2.1 There shall be joint workforce/management Consultative Committee established at the plant. 8.2.2 This Committee shall consist of the union shop committee and such representatives of the union as the union shall determine and such management representatives, but including senior management levels, as the employer shall determine. 8.2.3 This Committee shall meet on a regular basis to consider any issue relating to the operation of this Agreement or any other matter which may be raised by the union or the employer. 8.2.4 The kill floor delegates shall be allowed sufficient time off work to attend to necessary union business. 8.3 SETTLEMENT OF DISPUTES 8.3.1 Work shall continue throughout all negotiations. 8.3.2 In the event of a dispute the union delegate concerned shall confer with the senior supervisor of the Department. Failing a settlement, the delegate shall notify the works delegate and the supervisor shall notify the works management after which the works delegate with the delegate concerned shall negotiate with the works management. 8.3.3 Failing a settlement the Union Delegate shall convene a meeting of the union shop committee which shall discuss the matter in dispute in an endeavour to solve the issue, then a delegation from that meeting shall negotiate further with senior company management. 8.3.4 In the event that a department stops work for a meeting, the resolution of that meeting is taken to the Senior Management by a delegation of two members and the remaining union members of that meeting are to resume without delay. 8.3.5 Failing a settlement of the dispute the delegate shall notify the union and the works management may notify its employer organisations between the works management, the union shop committee or its representatives and representatives of the union and the appropriate employer Organisation with the view of settling the particular dispute. 8.3.6 If agreement still cannot be reached, the matter shall be taken to the Commission for settlement. 8.3.7 Both parties reserve the right to notify the Commission should the above provisions not be carried out. 8.3.8 The employer and the union agree that in the event of any dispute concerning the termination of any employee under clause 2.1.4 (Warnings/Dismissals) the matter will be taken to the Commission for determination. The employer and the union agree they will accept the jurisdiction and decision of the Commission as constituted and the union will not support any other legal action in any other jurisdiction.' 227 Clause 2.3 stipulated an even wider function of the consultative committee as follows: '2.3 CHANGES TO SYSTEMS AND METHODS OF WORK 2.3.1 General decisions regarding methods of work, production processes, waste minimisation, introduction of machinery or new technology etc., shall be made following consultation and agreement with the Consultative Committee established under Clause 8.2. 2.3.2 If the employer contemplates an entirely new method of processing within the establishment such as installation of machines or new technology it will inform employees of their intention to do so as soon as practicable.' 228 In his affidavit Mr Davey described the types of disputes which occurred. Most disputes were settled at the delegate level. However, there were a significant number which called for Mr Davey's attendance at Brooklyn, and reference to the grievance procedure. Mr Davey gave evidence that he spoke to supervisors or managers at Belandra about matters in dispute on average every second day and met with senior management on average once a month. In par 44 of the same affidavit, Mr Davey said: 'These [a list of 22 industrial issues referred to in the previous paragraph of his affidavit] were recurring issues, particularly on the beef and mutton chains. They frequently required meetings between management and the delegates, sometimes with the Union. They sometimes resulted in stopworks or other industrial action.' 229 The response of Mr Cabral in his affidavit sworn on 4 September 2002 stated: 'I do not agree with Mr Davey's description of various matters in paragraph 44 of his second affidavit as recurring issues. There were meetings on a regular basis between management and delegates. These meetings are required under the 1997 Agreement and the 2000 Agreement, which had provisions for meetings of a union/management consultative committee (see clause 8 of the 2000 Agreement). These consultative committee meetings were held regularly. It was the proper forum for such issues to be raised. I attended such meetings when I was able to.' 230 Mr Davey also made clear in his evidence that he found Belandra more difficult to work with than other meatworks with which he had been involved. He said, for instance, in reexamination: 'So what I'd like you to do is to make a comparison please between the approach you've just indicated was adopted by the persons you've referred to in management here and your other settings. Is there some difference that you can identify in approach? --- Yes. What is it? --- That there were more of those sorts of problems at Belandra than at the other places, similar places I go to.' 231 The area of contention over industrial disputation at the Brooklyn site was a matter more of degree than substance. Mr Davey was in a particularly good position to compare the level of disputation at Brooklyn with other works. He had been involved in the meat industry since 1972, firstly working as a labourer, then as a slaughterman. In 1981, he commenced employment with the applicant, and has held organising roles ever since. Then in 1997, he became assistant secretary of the Victorian Branch of the applicant. One of his functions was to organise at Brooklyn. He gave evidence in a careful and considered way. I accept his evidence that the level of disputation at Brooklyn was high and required frequent use of the grievance procedure. 232 It is now necessary to return to the passages from the cross-examination of Mr Catalfamo. Although the passages are quite lengthy, it is useful to set them out in full. 'One of the reasons why you wanted to set up this model is because you did not want any longer to have the hassles which you told us about a little while ago with all the industrial issues?---One is the industrial issues, yes. One of them?---One of them. Those industrial issues came from being tied down to the procedures under the enterprise agreements that you had?---I don't agree with that. You don't?---No. We worked with the union very well. We established - we asked them to come to us in 95 as we were setting up the new beef kill for - we worked with them very well. I've got no problem with union or any union. At the end of the day if people want to join a union - I've been a worker all my life, I believe in unions, but where - we've got no problem with the enterprise agreement. Then what are you talking about when you refer to the industrial issues that you were ‑ ‑ ‑?---The industrial issue at plant level in employing five or six hundred people - and with the extensions that were current at the time of pre‑fire, there were going to be a thousand people on site and as I said before the fire made us stop and think of the problems that we had and where we were going. The extensions had already been started pre-fire, you know. There would have been a thousand people there. It would have - we asked Mr Davey and Mr Bird to come to our office in 95 as we started setting this new kill floor, and we worked out an enterprise agreement with it. We had no problem with that. But having had six years of it and it's in the growth of the business, having seen the problems of that growth, we decided we didn't want to be employers of people any more. Let the - we had problems in terms of payment, delivery of payment to the workers. That happened three or four times and each time they went home or thereabouts - not every time but certainly a few times they went out, because the computer broke down or something happened - they went out. Now, do I want to have that hassle? We offered people money. The next morning if they didn't have their payment, we offered - if they had a cost, we would meet the cost. No, they've gone home, they've just gone home. Now, I don't want to employ people like that. We've always paid our people. We offered them extra money if they missed some payment because it didn't hit the bank at the right time; no, they just went home. Here I am, working 14, 16, 18 hours a day, seven days a week and people just - but going back to the union, we have no problem with the union. If the union thinks we've got a problem with them, they're wrong. But certainly, we want to run our own business. We don't have a problem if the union is there in the peripherals. If people want to join the union, that's their business. But certainly, we have tested the model at Yarrawonga, we like it, it's in its infancy, it needs fine‑tuning, but it works. It makes people responsible for their jobs. It makes people responsible for their jobs because they're dependent on being called in from day to day. Isn't that right?---That can change, Mr Borenstein. But that's the position at the moment, isn't it?---That's the position at the moment but that's not to say ‑ ‑ ‑ And that's not the position that applied under the enterprise agreement, is it? ---No.' [emphasis added] 233 Later, the following exchange occurred: 'Can I suggest to you that the model that you attempted to use in the P and R room where you tried to bring in the labour-hire people in the afternoon shift showed you that in order to get away from the enterprise agreement and in order to get away from the union you had to have a company between you and the workers and that's what you did at Altona?---That is not so, sir. Can I suggest to you that the only reason why you have signed an agreement with the union in Tasmania is because, for the time being, the union in the Tasmanian plant has a very high level of numbers and for you to refuse to sign would have caused you a considerable amount of industrial difficulty?---Sir, I have never run away in my life from a good fight if I believe in it. The position was different in the P and R room because the numbers of people that were left as direct employees were far smaller than the number of people that you brought in as labour hire?---That's what you say. I disagree with all this line of questioning that you're putting to me. To prove the point, when the P and R room ceased operations and the work was put across to Altona in November of last year - the work from the P and R room was taken across to Altona - the only workers who used to work in P and R who were taken across to Altona were the labour-hire people and not your direct employees?---It wasn't just us, sir. It was anybody that decided to take voluntary redundancy in the P and R room and asked for a job at Altona were given a job. They were given a job if they went to Altona and gave up the conditions of the enterprise agreement?---Well, sir, there's 350 people working at Altona. I'm sure that they don't crack a whip at them every morning and say, "You've got to work." They do come to work on their own legs. They earn big money and they look like a pretty happy workforce to me, not that I go there often. Mr Catalfamo, in order to go to Altona, the people who used to be direct employees at the P and R room would have to give up the enterprise agreement. That's correct, isn't it?---These people were offered ‑ ‑ ‑ Can you just answer my question? Is that correct or not?---That is not correct, sir. So they could take the agreement across, could they?---In the sense that these people had many thousands of dollars in redundancies payed [sic] to them. They took voluntary redundancy and the next day they applied for a job and got a job at Altona. It is their choice. That is clearly their choice. I'm sorry, did you say that they ‑ ‑ ‑ HIS HONOUR: Mr Catalfamo, I think the question is whether you were offering them, as part of their choice, the opportunity to work at Altona under the EBA?---No, that was not it, sir. I think that's what the question is getting at. MR BORENSTEIN: I put it to you that the reason that wasn't done was because the whole strategy in the P and R room was to get rid of the enterprise agreement. That's the position, isn't it?---The correct assessment of the whole situation is that we want to work - we want to run our own business. In three or four or five years' time we're going to develop a model which will be consistent with running a meat business in Victoria today successfully. That's what we're talking about here. I was going to come to that. You told us before lunch that you wanted to run your own business?---Yes, we do. You told us about the difficulties you had, for example, by people going on strike because their pay wasn't on time or it was incorrect or things like that? ---On the smallest of pretexts. Yes, and all of those issues come up because you have union delegates on the site who call the people together and make those sort of decisions. That's how it happens, isn't it?---Not always. No, but overwhelmingly that's how it happens. You don't see that in jobs where there are no union delegates, do you?---I ‑ ‑ ‑ Have you answered?---No, I can't answer it. I cannot answer it. The union delegates on that job, you saw as being a source of difficulty which prevented you from running the business the way you wanted to?---I will say it again, Mr Borenstein, we have got no problem - we have got no issue with people belonging to the union, being unionised. We've got no issue with it, none whatsoever. Look, Mr Catalfamo ‑ ‑ ‑?---We just want - we have - yes, I will say this: we have a philosophical difference with the union in Victoria. We have had many discussions. We had a situation where we negotiated one EBA for seven months and came to an agreement. Mr Davey and Mr Bird sat up in that room week after week and we negotiated an agreement, and part of that agreement was that we would put a piece of equipment which we had ordered and would be installed three or four months later. When it came time - this is just one little snippet. When it came time for us to put the piece of equipment, basically we still had to pay totally for the man that that piece of equipment took the position of. They're the sort of problems which get under your skin?---Yes. Absolutely?---Yes. Because they're the sort of decisions that interfere with you being able to run the plant like you think it should be run?---We want to run a business of buying meat and selling meat and developing markets. We don't want to be up to our armpits in industrial relations every day of our lives. We don't. As I said earlier on, Mr Borenstein, I want people to be a bit more responsible for their jobs. The issues of the sort that you were talking about, being paid for tally when the machine gets installed ‑ ‑ ‑?---But that's just one example, one little example. I know, I understand that. Issues of that sort, they all come up because, number one, you have an active union and union delegates on your site? ---We don't have a problem with a responsible active union. We don't have a problem with that. But you don't regard the way in which the union operated on your site as being responsible. Isn't that what you're saying?---In our negotiations with the union over the years, and as I said earlier on before lunch, we welcomed the union to our site in 1995. It was the place - there was no employment there. The place had been shut. We went and spent a lot of money, reinstated the abattoir. We invited Mr Davey and Mr Bird to come in and sit down and work out a labour contract, an EBA. We didn't have a problem with that. Over the years we have worked very closely with them, very close, and we have a - my problem is one where I want to run my business different in the future. But, you see, you have told us that, for example, in Tasmania you have introduced your model by employing labour-hire people down there and progressively you're going to employ more and more labour-hire people? ---Correct. But those abattoirs are all operated by TGS. TGS is the owner?---Yes. You haven't done that at Altona?---Give us time, Mr Borenstein. I mean, we have only been in there for five minutes. I'm sorry. In Altona you could have done immediately exactly what you say you were doing in Tasmania by having TGS have the agreement, make the agreement with the labour hire company to supply workers. You could have done exactly at Altona what you have been doing in Tasmania. You started at the same time in both places but in Altona you did it differently. You did it with Mr Carroll?---Mm'hm. I'm putting to you that the reason you did it differently was because you wanted to get rid of the influence of the union here in Melbourne and you wanted to get rid of this particular enterprise agreement and that's the reason why you have treated Altona differently than any other place. MR PARRY: I think that can be broken up a little bit, to be fair to the witness. It rolls in; the influence of the union and the EBA and a few other things. I think it should be just broken up and put in parts to the witness, your Honour. MR BORENSTEIN: In Altona you have set up your model differently than in Tasmania because you don't directly engage the labour hire people in Altona, correct?---Could you repeat that, sir? At Altona TGS does not engage the labour hire employees directly, does it? ---No. In Tasmania it does, doesn't it?---It does, yes. The system you have got in Altona is different because you have put Mr Carroll's company between you, between TGS and the workers? ---That's so, yes. What I'm putting to you is ‑ ‑ ‑ HIS HONOUR: Between TGS and the labour hire. MR BORENSTEIN: And the labour hire company?---As Mr (indistinct) What I'm putting to you is that there is a good reason why you have done that in Melbourne and the good reason is, firstly, that you wanted to get rid of any suggestion that the enterprise agreement could go across to Altona? ---Mr Borenstein, your speculation leaves me a little bit dismayed. That's not the reason at all. Your speculative comments are just ‑ ‑ ‑ The second reason why you've done it is because you want to avoid any possibility - or you want to minimise any possibility of the union getting any influence on the Altona site. That's the second reason. Do you agree with that?---That's not so. Can you give me one sensible reason why at Altona you have set up the operation differently than you are running it in the two locations in Tasmania? ---Why? Because we are diametrically opposites at the moment with the union. We are at opposite ends of the spectrum. Having worked closely with them we just can't seem to be able, ideologically - and I'm no ideologue, your Honour. You know, I just - having been involved in this industry now for 40 years and having put forward many suggestions and many ideas across the table, I would get - prevent the industry in the state. I would get - the industry could grow - you might as well talk to the wall. You know, I just - we have gone - we have walked the walk, met them, invited them, spoke with them, over many years. We cannot get the smallest change. That is the truth of it. You might as well talk to the wall. Here we are investing millions of dollars in an industry that's defunct in this state. This state, your Honour, used to have 17,000 members. The union had 17,000 members in this state back in the 70s. The industry has left the state, has taken flight. Within a small radius of where we are, within a five kilometre radius, there was 10 abattoirs, large ones. They're all gone, we are the only ones left standing at the moment. We want to grow the business. We want to grow our export business and our domestic business. We want to employ people. We don't want - we want to give them conditions. But every time we've - we don't want - basically they got us to the point now where we don't want to employ people directly any more because of the resistance to change and there's a - going to work every day and running a meat plant is not an easy task. The biggest single problem is the industrial relation issue, because business can be got - there's plenty of business over the water and there's plenty of business domestically, if you do the job right. All we asked for was a bit of cooperation with the union and a bit of - just listening to some changes. "Let's implement some changes." Even the smallest of change was answered by, "But you used to do it like that 30 years ago, 40 years ago and some very smart people thought about that." But 30, 40 years ago they used to pick up carcasses off the concrete and lift them up and put them on the rail. Now there's a lot of machinery that does all that hard work. We're talking about a lot of things. The ability of the union to behave in the way in which you've just described is facilitated by the procedures under the enterprise agreement, isn't it? They can take you on grievance procedures to the commission, they can force you to go and consult about things and all of that sort of thing. It's part of the weapon they use to ‑ ‑ ‑?---At the meat plant, when all else fails, pull out an OH and S issue.' [emphasis added] 234 The first thing which must be highlighted is that these passages are central to the determination of whether Belandra has negatived the existence of the proscribed reasons. The applicant relied on other evidence that was said to show anti-union conduct by Belandra. For instance, at a meeting after the fire with union officials, Mr Cabral, in the presence of Mr Catalfamo, engaged in an outburst directed against Scott Davis. He called Mr Davis a trouble maker and said that he would not be reemployed. This incident, and several similar ones, have alternative explanations. I do not find them either alone or together useful in forming a view as to Belandra's motivation in September 2001. 235 The main evidence which throws light on the reasons for Belandra's conduct is the evidence of Mr Catalfamo himself, and an important part of that evidence is contained in the passages set out above. 236 When these passages are read in transcript they present a problem of interpretation because they contain statements which seem contradictory. At one point Mr Catalfamo said that he had no problem with the union, but at another point he said that he found the union difficult to work with and that Belandra was at "diametrically opposites" with the union. Of course, the evidence must be viewed in its totality rather than by reference to individual statements alone. Further, the evidence must be viewed in the context of the whole of the evidence in the case. 237 In addition, in this case, it is useful to have regard to the impression made by Mr Catalfamo in the witness box. His demeanour, the way he answered questions, what he chose to emphasise, and what he chose to avoid, all create a picture which assists in resolving the apparent contradictions in his evidence. It is now well accepted that judges must be careful in using this type of approach to assess evidence. Witnesses may give the wrong impression because of the strangeness to them of the courtroom environment. Further, there is a high degree of subjectivity in making judgments based on the impression made by a witness in the witness box. However, in a situation like the present, where the mental processes of the witness are in issue, and there is little objective evidence available apart from the evidence of the witness himself, there is room for the use of such an approach. Given the danger of injustice in placing too high a reliance on the impression created by a witness in the witness box, it is necessary to approach the matter with caution. With that caution in mind I turn to my assessment of Mr Catalfamo's evidence. 238 The overwhelming impression that Mr Catalfamo gave was that he was a person accustomed to exercising control, and of having his views accepted without opposition. 239 He acted with generosity to those who were loyal and supportive. One example is that he acted as a mentor to Mr Cabral and sponsored his career. He provided guarantees of several hundreds of thousands of dollars to companies operated by Mr Cabral in order to assist his advancement in the meat business. In return, it was clear from my observation of Mr Cabral in the witness box that he accepted that Mr Catalfamo had a dominant role in the operation of the business. A similar relationship between Mr Catalfamo and Mr Oravec was evidenced from my observations of Mr Oravec in the witness box. Mr Catalfamo described his approach to business as follows: 'Mr Borenstein, in business one does a lot of things over the years. I have lent money and I have helped fellow meat people here in the meat industry at times when they've needed it. I have been helped when I've needed help. I have got certain bonds with certain people. The Cabrals have worked for me. The father had worked for me since 1980. Now, I trust him implicitly. He has been very good; he's been trustworthy, diligent. Now, his children, Gilbert who came to work for me in 85 or 86 worked very hard for me at Richmond cold store which was a turn-of-the-century cold store. I mean, it was a hovel of a place to run. He ran it very well. He showed promise. He asked me where he should go next; not different than his brother Bernie asking me, "Joe, I've got $50,000 in the bank. Where do I invest it?" I said to him, "Buy something in Richmond. You can't go wrong." It's advice one gives. He's still got that property that he bought for 70,000 and today it's worth 300,000. Now, what's wrong with that?' 240 Mr Catalfamo expressed his views about the history of the meat industry, and the future of the meat industry forcefully. His evidence showed that he had firm ideas about these matters. It was also obvious that Mr Catalfamo was not particularly open to accommodating contrary views. He reacted to the questioning of his views with a degree of impatience and dismissiveness. In the same way, after his long experience in the meat industry, and having strong views about how the business operation should be changed, it was clear from his evidence that Mr Catalfamo was no longer prepared to tolerate any obstruction to the operation of the business. When the extracted passages are read in the light of the impressions made by Mr Catalfamo in the witness box and with the evidence as a whole, I find that Mr Catalfamo was content to engage with the applicant only if it cooperated with him, and if it accepted his vision of change without question. Otherwise, he was not prepared to have anything to do with the applicant. His reference to his wish to 'run the business' meant that he wanted to be able to run the business free of the constraint of the 2000 Agreement, and free of the need to deal with the applicant. His overall position was best revealed when he said: 'But certainly, we want to run our own business. We don't have a problem if the union is there in the peripherals.' The high level of industrial disputation at the Brooklyn site referred to earlier reflected the growing determination of Belandra to resist the demands of the applicant. 241 The respondents argued that even if Mr Catalfamo was not prepared to continue to deal with Mr Bird or Mr Davey, the Secretary and Assistant Secretary of the Victorian Branch of the applicant respectively, and this attitude led to his decision not to employ the Belandra employees, such motivation did not amount to acting because the Belandra employees were members of the applicant. Rather, the motivation was personally directed against two individuals. I do not accept this contention. Mr Bird and Mr Davey engaged with Mr Catalfamo in their capacities as officials of the applicant. There is no suggestion that Mr Catalfamo's attitude was personally directed. On the contrary, he had dealt with them as union officials in the past. Mr Catalfamo's rejection of their intervention on behalf of the Belandra employees was directed against their role as officials of a trade union. Any other official who presented an impediment to Mr Catalfamo's wish to operate unhindered would have encountered the same response. 242 In relation to the requirement for the necessary causal link between the conduct and the reasons for the conduct, as discussed in pars 87 - 98 of these reasons. I find that the existence of the 2000 Agreement was not just the cause of the situation giving rise to the refusal to reemploy, but was a reason for it.

Conclusion - Reasons For The Conduct 243 In the result, Belandra has not displaced the presumption that it refused to reemploy the Belandra employees for reasons which included that the applicant represented them collectively as an incident of their membership of the applicant. It will be recalled that this falls within the reason referred to in s 298L(1)(a), following the construction which I have adopted in pars 102 to 217. Further, Belandra has not displaced the presumption that it refused to reemploy the Belandra employees because they were entitled to the 2000 Agreement.

remedy 244 It follows from these reasons that Belandra has contravened the Act by engaging in conduct referred to in ss 298K(1)(c) and (d) for the reasons set out in s 298L(1)(a) and (h). Consequently, the Court will now make declarations to that effect. The application will be re-listed for directions at 10.15 am on 26 September 2003, in order to fix a timetable for the hearing on penalty and the other relief sought. I certify that the preceding two hundred and forty-four (244) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North j.

Associate: Dated: 29 August 2003 Counsel for the Applicant: Mr R Redlich QC Mr L Armstrong

Solicitor for the Applicant: Gill Kane & Brophy

Counsel for the 1st, 4th, & 5th Respondents: Mr F Parry Mr J D'Abaco

Solicitor for the 1st, 4th, & 5th Respondents: Arnold Bloch Leibler

Counsel for the 2nd and 6th Respondents: MrA McNab

Solicitor for the 2nd and 6th Respondents: Deacons

Counsel for the 3rd Respondent: Mr R Manuel

Solicitor for the 3rd Respondent: EMA Legal

Date of Hearing: 30 September 2002 - 4 October 2002

Counsel for the Applicant: Mr H Borenstein SC Mr L Armstrong

Solicitor for the Applicant: Gill Kane & Brophy

Counsel for the 1st, 4th, & 5th Respondents: Mr F Parry SC Mr B Mueller

Solicitor for the 1st, 4th, & 5th Respondents: Blake Dawson Waldron

Counsel for the 2nd and 6th Respondents: MrA McNab

Solicitor for the 2nd and 6th Respondents: Deacons

Counsel for the 3rd Respondent: Mr Healy

Solicitor for the 3rd Respondent: EMA Legal

Date of Hearing: 11 - 20 March 2003

Date of Judgment: 29 August 2003

Workplace Relations Act 1996(Cth)ss 298K, ss 4(1), ss

Conciliation and Arbitration Act 1904(Cth)ss 4, 9

Conciliation and Arbitration Act 1973(Cth)s 5

Industrial Relations Act 1988(Cth)s 334

Industrial Relations Reform Act 1993(Cth)ss 170DA

Australian Meat Industry Employees' Union v Belandra Pty Ltd [2003] FCA 910 INDUSTRIAL LAW - industrial relations - freedom of association - employer, closed down operation in July 2001 following fire with intention to reemploy workers when operation rebuilt - later decided not to reemploy - recommenced operations but contracted management company to manage - management company engaged labour-hire company to supply workers - labour-hire company offered workers employment under Australian Workplace Agreements - whether conduct of employer amounted to breach of Workplace Relations Act 1996 (Cth) ss 298K - 298L. INDUSTRIAL LAW - meaning of "employer" - whether first respondent was an actual employer - whether there was an absolute termination of employment in July 2001 - whether employees on WorkCover were not terminated - whether continued employment of WorkCover employees meant that first respondent was an actual employer - whether first respondent was usually an employer - whether general definition of employer in Workplace Relations Act 1996 (Cth) s4(1) applies to Part XA - proximity of employment. INDUSTRIAL LAW - conduct of employer - refusal to employ - whether first respondent refused to employ the workers - whether the applicant must demonstrate that there was a vacancy for there to be a refusal to employ - where employer contrives to have no vacancies by the contravening conduct itself. INDUSTRIAL LAW - conduct of employer - alteration to prejudice - whether the first respondent altered the position of the employees to their prejudice in breach of s298K(1)(c) when it decided not to reemploy - whether the employees had an expectation - whether expectation included reemployment on basis of seniority - whether prejudicial alteration to position must occur to employee's legal rights - whether prejudicial alteration to position can only occur if an employment relationship exists at the time of the alteration - whether conduct of employer must be directed at an individual employee. INDUSTRIAL LAW - prohibited reason for conduct - entitlement to the benefit of an agreement - whether the employees were entitled to the benefit of an agreement when decision not to reemploy them and/or prejudicial alteration to their position made - whether entitlement may be held by prospective of or previous employee - whether refusal to employ was because of entitlement. INDUSTRIAL LAW - prohibited reason for conduct - membership of an industrial association - whether first respondent refused to employ and/or altered employees' position to their prejudice because they were members of an industrial association - meaning of "membership" - whether s298L(1)(a) protects employees from victimisation merely for being a union member or also for the activities of the union as an incident of the employee being a member - whether statutory context suggests that scope of s298L(1)(a) is restricted to protection for holding a membership card - whether other subsections of s298L(1) exclude broader interpretation of s298L(1)(a) - expressio unius est exclusio alterius- obligations under international law - law of other jurisdictions. WORDS AND PHRASES - "actual employer", "usually an employer", "refuse to employ", "alteration of position to prejudice", "entitled", "member of an industrial association".

European Convention for the Protection of Human Rights and Fundamental Freedoms, 4 November 1950, Rome, 213 UNTS 221 International Covenant on Civil and Political Rights, 19 December 1966, New York, [1980] ATS 23 International Covenant on Economic, Social and Cultural Rights, 19 December 1966, New York, [1976] ATS 5 International Labour Organisation Convention (No. 87) concerning Freedom of Association and Protection of the Right to Organise, 9 July 1948, San Francisco, [1974] ATS 3 International Labour Organisation Convention (No. 98) concerning the Application of the Principles of the Right to Organise and to Bargain Collectively, 1 July 1949, Geneva, [1974] ATS 5 International Labour Organisation Convention (No. 158) concerning Termination of Employment at the Initiative of the Employer, 22 June 1982, Geneva, [1994] ATS 4 Universal Declaration of Human Rights G/A Res. 217A (III) UN. Doc. A/810, (10 December 1948),

American Ship Building v Labour Board 380 US 300 (1965) cited Ainsworth v Criminal Justice Commission (1991-1992) 175 CLR 564; (1992) 106 ALRV11 cited Associated British Ports v Palmer and Others and Associated Newspapers Ltd v Wilson [1994] I.C.R. 97 cited Associated Newspapers Ltd v Wilson and Associated British Ports v Palmer and Others [1995] 2 AC 454 considered Australasian Meat Industry Employees' Union v R J Gilbertson (Queensland) Pty Ltd (unreported, Gray J, 8 December 1988) considered Australian Workers' Union & Ors v BHP Iron-Ore Pty Ltd (2000) 96 IR 422; [2000] FCA 39 cited Australian Workers' Union & Ors v BHP Iron-Ore Pty Ltd (2000) 106 FCR 482; [2001] FCA 3 not followed BHP Iron Ore Pty Ltd v Australian Workers' Union & Ors (2000) 102 FCR 97; [2000] FCA 430 considered Burnie Port Corporation Pty Ltd v Maritime Union o f Australia 104 FCR 440; [2000] FCA 1768 followed Burwood Cinema Ltd v Australian Theatrical and Amusement Employees' Association (1924-1925) 35 CLR 528 cited Case of Wilson & the National Union of Journalists, Palmer, Wyeth & the National Union of Rail, Maritime & Transport Workers; Doolan & others v. the United Kingdom (unreported, Eur Ct HR, application nos 30668/96, 30671/96 and 30678/96, Strasbourg, 2 July 2002) considered Community & Public Sector Union v Telstra Corporation Ltd (2001) 104 IR 195; [2001] FCA 267 considered Construction, Forestry, Mining & Energy Union v BHP Steel (AIS) Pty Ltd [2000] FCA 1008 followed Discount Tobacco & Confectionary Ltd v Armitage [1990] IRLR 15 cited Elliott v Kodak Australia Pty Ltd [2001] FCA 807 cited Fraser v Fletcher Construction Australia Ltd (1996) 70 IR 117 not followed Greater Dandenong City Council v Australian Municipal, Administrative, Clerical and Services Union (2001) 112 FCR 232; [2001] FCA 349 considered Houssein v Under Secretary of Industrial Relations and Technology (N.S.W.) (1982) 148 CLR 88 cited Lewis Construction Co Pty Ltd v Martin & Ors (1986) 70 ALR 135; [1986] 17 IR 122 considered Linehan v Northwest Exports Pty Ltd (1981) 57 FLR 49 considered Maritime Union of Australia & Ors v Geraldton Port Authority & Ors (1999) 93 FCR 34; [1999] FCA 899 distinguished Maritime Union of Australia v Burnie Port Corporation Pty Ltd (2000) 101 IR 435 followed Maritime Union of Australia v CSL Australia Pty Ltd (2002) 113 IR 326; [2002] FCA 513 considered Metal Trades Employers Association v Amalgamated Engineering Union (1935) 54 CLR 387 cited Mills v Meeking & Anor (1990) 169 CLR 214 cited Minister for Immigration and Ethnic Affairs v Teoh (1994-1995) 183 CLR 273 cited National Union of Workers v Qenos Pty Ltd (2001) 108 FCR 90; [2001] FCA 178 cited Public Service Alliance of Canada v The Queen [1984] 2 FC 889 cited Re Aluminium Industry Award 1983 (1994) 56 IR 403 cited Reference Re Public Service Employee Relations Act (Alta.) [1987] 1 SCR 313 considered Re Service Employees' International Union, Local 201 and Broadway Manor Nursing Home (1983) 44 OR (2d) 392,409 cited Re Stephen Phillip Gibbs And The Palmerston Town Council (unreported, Gray J, 21 December 1987) cited The Jumbunna Coal Mine, No Liability and Another v The Victorian Coal Miners' Association (1908) 6 CLR 309 cited The Queen v Findlay & Anor; Ex parte The Commonwealth Steamship Owners' Association and others (1953) 90 CLR 621 cited The Queen v Kirby; Ex parte Boilermakers' Society of Australia (1955-1956) 94 CLR 254 cited Wentworth v New South Wales Bar Association (1992) 176 CLR 239; (1992) 106 ALR 624

did belandra refuse to employ the belandra employees? 48 The respondents then argued that, even if Belandra was an employer under the Act, Belandra did not refuse to employ the Belandra employees within the meaning of s 298K(1)(d). They submitted that there can be no such refusal unless a vacancy exists in the workforce which can be filled by the engagement of the person in question. For this proposition, the respondents relied on three cases, namely, Fraser v Fletcher Construction Australia Ltd (1996) 70 IR 117 (Fletcher); Maritime Union of Australia v Burnie Port Corporation Pty Ltd (2000) 101 IR 435 (Burnie); and Construction, Forestry, Mining and Energy Union v BHP Steel (AIS) Pty Ltd [2000] FCA 1008 (CFMEU v BHP Steel). They contended that there was no vacancy available to be filled in September 2001 because Belandra had decided not to employ anyone thereafter. Belandra had not refused to employ the former workforce. There were just no vacancies for Belandra to fill. 49 There are at least two available constructions of the expression "refuse to employ" as used in s 298K(1)(d) in relation to vacancies. On one approach, it can be said that there is no refusal to do something if that result cannot be achieved. A person cannot refuse to do that which cannot be done. If there is no vacancy, then there can be no refusal to employ. The respondents argued for this approach (the former construction). Alternatively, it can be said that even if an outcome is not available, the decision not to provide it is nonetheless a refusal to provide the outcome. That is, whether the outcome can be achieved should be considered separately from whether there was a decision not to achieve the outcome. Thus, there can still be a refusal to employ even if there is found to be no available vacancy (the latter construction). 50 The statutory context in which s 298K(1)(d) appears suggests that the latter construction was intended. Division 3 of Part XA of the Act prohibits certain conduct undertaken for specified reasons. The conduct and the reasons are dealt with separately. The conduct is defined in s 298K and the prohibited reasons are specified in s 298L. The dichotomy is carried through into s 298V, which provides that where conduct is alleged to have been undertaken for a prohibited reason, the respondent bears the onus of showing that the conduct was not undertaken for that reason. In advancing the objects of freedom of association, Parliament has taken a view about the proper balance between the parties in relation to the discharge of the obligation of proof. Conduct is treated differently from the reasons for it. A reverse onus on the issue of the reason for conduct makes good sense because the reason for conduct is a matter peculiarly within the knowledge of the respondent. 51 The same approach underlies the latter construction of the expression "refusal to employ". The applicant is required to prove the conduct, namely, that the applicant was refused employment by the respondent. The onus then shifts to the respondent to disprove the prohibited reason alleged. At this point, the absence of a vacancy may provide an innocent explanation for the conduct. Depending on the circumstances giving rise to the absence of a vacancy, the lack of an available position may show that the reason for the refusal was not a prohibited reason. 52 Further, the difficulty with the former construction is that it allows an employer to circumvent the operation of s 298K(1)(d) by its own action. If an employer only refuses to employ where a vacancy exists, then, in order to avoid engaging a particular person for a prohibited reason, the employer can simply contrive to have no vacancy. Consider the situation where an employer has two vacancies. He has three applicants, A, B, and C. A and B are not union members and C is a union member. The employer engages A and B and rejects C. The reason for rejecting C is that he is a union member. Were it not for this fact, the employer would have preferred C to A and B. If C challenged this decision under s 298K(1)(d) it would be open to the employer to argue, if the former construction of the subsection applied, that there was no refusal to employ C because there was no longer a vacancy. However, it was the contravening act itself which caused there to be no vacancy. One would imagine that such a situation was precisely what the subsection was intended to guard against. The former construction thus allows an employer to escape liability by arranging for there to be no vacancies available to an applicant whom the employer wishes to reject for a prohibited reason. 53 In Burnie, Ryan J dealt with a case similar to the example just discussed. The Burnie Port Corporation had two vacancies for port operatives/cold store operators. The Burnie Port Corporation decided that the employment of the person appointed to fill each of the vacancies would be governed by an AWA. Six applicants applied for the jobs. One applicant, Mr Rolls, said at the interview that he was not happy for his employment to be governed by an AWA. He was not selected. Ryan J found that the reason that Burnie Port Corporation did not select Mr Rolls was that he was entitled to the benefit of an industrial instrument (s 298L(1)(h)), namely, an Enterprise Bargaining Agreement which would have otherwise applied to his employment. Ryan J considered whether there was a refusal to employ Mr Rolls within the meaning of s 298K(1)(d). He said at par 41: 'The Union contends that Mr Rolls, because of his expressed objection to entering into an AWA, was in a class of persons who would never be employed by the applicant, and that this constituted a refusal to employ under s 298K(1)(d). However, as I put to Counsel during the hearing, that submission is more accurately directed towards the reason for any refusal to employ that may have occurred.' [emphasis added] 54 His Honour then rejected the Burnie Port Corporation's argument which sought to characterise its decision as a decision to prefer two other candidates over Mr Rolls, rather than a decision to refuse to employ. His Honour continued at par 44: 'In the present case there were two vacancies for which Mr Rolls had applied and was under active consideration. The refusal to employ him occurred when the Corporation decided to employ two other applicants in preference to Mr Rolls. To hold otherwise would make it impossible to predicate of Mr Rolls, or any other person passed over for selection, a "refusal to employ", or an "agreement to employ". Whether the refusal occurred because there was a class of persons whom the Corporation would never employ (because they refused to enter into an AWA) or because two other candidates were preferred on merit, is relevant to the reasons for that refusal.' [emphasis added] 55 Ryan J thus held that an employer refuses to employ where it has a position under active consideration at the time of rejecting the applicant. He found this to be the fact in Burnie. His reasoning, expressed in the emphasised passage set out in par 53 above, is also a basis for regarding the question of the existence of a vacancy as part of the consideration of the reason for the refusal to employ. His Honour also adverted to this approach in the emphasised passage set out in par 54 above. There, his Honour considered whether Mr Rolls was in a class of persons who would never be employed by the Burnie Port Corporation. Put another way, the question was whether Mr Rolls was a person for whom there would never be a vacancy. This matter, his Honour said, was more accurately directed towards the reason for the refusal. Although an appeal from his Honour's decision was allowed (Burnie Port Corporation Pty Ltd v Maritime Union of Australia 104 FCR 440; [2000] FCA 1768) the Full Court said, as to the question presently under consideration, at par 14: 'The Corporation relied on three main grounds. The first was that it had not refused to employ Mr Rolls. Rather, so it said, Mr Rolls declined to accept the terms and conditions of employment offered to him. The primary judge found that the Corporation had refused to employ Mr Rolls when it decided to employ the two other applicants in preference to him. That finding was open on the evidence. We are not persuaded that his Honour erred in any respect in arriving at it.' 56 The source of the respondents' submission in the present case that the former construction should apply was the decision of Moore J in Fletcher. In that case, two charges were brought under s 334(2) of the Industrial Relations Act 1988 (Cth), the predecessor to s 298L, which made it an offence to refuse to employ a person for specified reasons, including the reason that the person had been a union delegate or member, or had given evidence in a proceeding under the Act. The provision was in similar terms to s 298K(1)(d) read with s 298L(1). However, a difference is that, whilst the present provisions provide for a civil sanction, the previous provisions provided for a criminal sanction. Two employees of Fletcher Constructions Australia Limited (Fletcher Constructions), Gallagher and Arnold, were employed on a gas pipeline project. They were elected delegates of the Construction, Forestry, Mining, and Energy Union (CFMEU). They took action and gave evidence in the Australian Industrial Relations Commission in support of a claim for a completion bonus on the gas pipeline project. The employment of Gallagher and Arnold came to an end when the project on which they were employed was completed late in 1995. In 1996, Fletcher Constructions was to commence a new gas pipeline project, and it completed hiring for that project by February 1996. Some, but not all, of the employees from the previous project were employed on the new project. Gallagher and Arnold applied for jobs on the new project in April 1996 but were not employed. The information alleged that, on 30 April 1996, Fletcher Constructions refused to employ Gallagher and Arnold for proscribed reasons. His Honour said, at 118: 'It is conceded by the prosecutors that there is no evidence of positions being available in late April 1996 in the workforce involved in the new project.' 57 In these circumstances, the defendant put, and his Honour upheld, a submission that the defendant had no case to answer. 58 His Honour said at 119 that the expression "refuse to employ" deals with: 'actual employment where there is a refusal to employ a person in circumstances where, apart from the refusal, employment might or would arise. I refer to situations where employment might arise to allow for circumstances where a vacant position exists and a refusal to employ arises before the employer has ascertained whether the person applying for the job or position, who is victimised for a prescribed reason, is qualified or equipped to do the job.' [emphasis added] 59 His Honour concluded at 121: 'On one view, the opposite of "refuse to employ" is "agree to employ". "To employ" may mean, in context, to enter a contract of employment. It is entirely consistent with the ordinary meaning of "refuse", and for that matter "agree", to treat "refuse to employ" as describing a situation where the employer does not do what otherwise would be done, namely, agree to employ by entering a contract of employment. Having regard to the context in which the expression "refuse to employ" appears in s 334(2), I have concluded it relates to a refusal by an employer to employ a person for a proscribed reason when employment would or might otherwise occur. That is, it concerns the refusal of an employer to employ a person by refusing to enter a contract of employment. That arises, in my opinion, only if a position or vacancy exists to which the employment would have related at the time of refusal. Accordingly, in the absence of evidence that a position or vacancy existed in late April 1996, the prosector has failed to establish, even on a prima facie basis, a refusal to employ. In my opinion the defendant does not have a case to answer.' [emphasis added] 60 It must be recalled that his Honour was dealing with a case in which it was conceded that there were no vacant positions available to be filled at the time of the alleged offence. In those circumstances, his Honour held that there was no refusal to employ because employment could not have occurred, even in the absence of the conduct complained about. The primary construction adopted by his Honour was that a refusal to employ only occurs when employment would or might otherwise occur. His Honour applied that construction to the facts of the case before him. Those facts were that there was no vacancy. It followed, on those facts, that employment would not otherwise have occurred. But the decision does not mean that where an employer deliberately refuses to create vacancies as part of the conduct alleged, the fact of the absence of vacancies can be used to argue that there is no refusal to employ. This was not a situation directly addressed by his Honour. His Honour's approach asks the question whether the lack of vacancy would, or might have, existed were it not for the proscribed conduct. In the case before him, the answer was no because the workforce had been assembled months before the alleged refusal. The decision, therefore, does not assist the respondents in the circumstances of this case. 61 His Honour's reasoning, however, does not support the approach to the construction of the expression "refuse to employ" that I prefer. On that latter construction, the fact that Gallagher and Arnold were not given employment, even though there was none otherwise available, would have amounted to a refusal to employ. The no case submission would have failed. The prohibited intent would have been presumed. But, on the facts, the defendant probably could have shown that the reason for the refusal was that no jobs were available. His Honour did not consider this alternative approach. He explained that he had limited time overnight to consider the question, and would have preferred more time. Further, he adverted to the fact that the provision under consideration created a criminal offence. Those factors may have had a bearing on the approach adopted. His Honour, however, did consider the operation of the reverse onus provision in this context. He said at 118-9: 'Section 334(6) renders it unnecessary for a prosecutor to prove, relevantly, the reason why a defendant refused to employ. However the reference to "reason" in the opening words of s 334(6), must be read in context. In the concluding words of s 334(6) there is a further reference to "reason" as part of the composite expression, "reason specified in the charge". That is plainly a reference to the matters referred to in the various paragraphs in subs (1), (2), (3), (4) and (5) of s 334 which, in the main, relate to the protected status or characteristic of the person who is said to have been victimised in a proscribed way. In my opinion, the word "reason" when first appearing in s 334(6), is a reference to the matters in those paragraphs. Thus s 334(6) relieves a prosecutor of the obligation of proving the existence of a reason contained in the relevant paragraph relied upon by the prosecutor in the charge, but otherwise does not affect the obligation to prove other aspects of the offence.' 62 Moore J apparently regarded the existence or otherwise of a vacancy as a fact to be proved by the applicant before the onus shifted to the respondent. 63 Again, in my view, once the applicant has shown that the respondent refused to employ the applicant, irrespective of whether a vacancy exists or not, the applicant has discharged the onus of proof which rests on the applicant. 64 In CFMEU v BHP Steel, the CFMEU alleged that BHP Steel (AIS) Pty Ltd (BHP) had, contrary to s 298K(1)(d), refused to employ Mr Gaskill because he was entitled to the benefit of an industrial instrument. Mr Gaskill worked at the Tower Colliery as an electrical fitter/mechanic. His employment was governed by an award which provided for the payment of accumulated sick leave on retrenchment and for redundancy pay. Some retrenchments at the Colliery were anticipated. BHP introduced a 'VR Swap' scheme (the scheme). BHP also operated the Port Kembla steelworks. There were employees who wished to leave the steelworks, but BHP wished to retain their positions. BHP allowed a number of steelworks employees to swap positions with an equivalent number of colliery employees. The steelworks employees would then be entitled to redundancy payments and the colliery employees would avoid retrenchment. It was a term of the scheme that any colliery worker transferring to the steelworks would have to repay any accumulated sick leave or redundancy payment received from the colliery. Mr Gaskill was a junior electrician and anticipated he would be retrenched. So he applied for a job in the steelworks under the scheme. Shortly after he made that application he was retrenched and paid his accumulated sick leave and redundancy payment. Mr Gaskill was then offered a position at the steelworks under the scheme. He, however, insisted on retaining the accumulated sick leave and redundancy payments. As a result, BHP withdrew the offer of employment at the steelworks under the scheme. It was alleged that BHP had refused to employ Mr Gaskill because he was entitled to the benefits of the award. Wilcox J said at par 50 and 51: '50 A refusal to employ somebody involves discrimination or victimisation only if there was, at the relevant time, a vacancy or prospective vacancy. For that reason, I agree with, and apply to the current legislation, Moore J's observation that the reference to refusing to employ a person concerns "actual employment where there is a refusal to employ a person in circumstances where, apart from the refusal, employment might or would arise". 51 There is no doubt that BHP Steel refused to employ Mr Gaskill at the steelworks except on the basis that he repaid benefits he had received under the coal mining award. If he had been an applicant for a vacancy at the steelworks, I would have agreed such a refusal offended s 298K. However, there never was a vacancy available to Mr Gaskill; there was only an opportunity to exchange positions with a similarly qualified employee, at the steelworks, who wished to take voluntary redundancy. Unless and until an exchange was arranged, no position was available to Mr Gaskill. If arrangements had been made before his retrenchment notice took effect, there would have been no problem. But they were not made before that date. Implementation of the proposal therefore depended on Mr Gaskill agreeing, in effect, to revert to the pre-termination position by refunding his entitlements.' [emphasis added] 65 In this passage Wilcox J reasoned as follows. He said that a refusal to employ somebody involves victimisation only if there is a vacancy or prospective vacancy. In this case, he continued, "there is no doubt that BHP Steel refused to employ Mr Gaskill …". But there was no victimisation because there was no vacancy at the time. His Honour accepted that there was a refusal to employ. His reference to victimisation was a reference to the reason for the refusal. He held that the reason for the refusal was the absence of a vacancy, and not the proscribed reason. Thus, the reasoning of Wilcox J does not support the respondents' contention that there is a broad principle that a refusal to employ cannot occur if there is no vacancy to fill. Rather, it supports the approach I prefer, that the lack of a vacancy is a matter to be raised by the respondent in rebuttal of the presumption raised by s 298V. 66 In the result, the cases relied upon by the respondents do not support the proposition for which they contended, namely, that there can be no refusal to employ a person if there is no vacancy at the time of the refusal. 67 The decided cases, applied to the present circumstances, lead to the conclusion that Belandra did refuse to employ the Belandra employees. Although Fletcher did not deal with an analogous factual situation, it stands for the view that there is a refusal to employ where, apart from the refusal, employment would have arisen. That was the position in the present case. Immediately prior to the decision not to reemploy the Belandra employees, Belandra intended to reemploy the Belandra employees. In Burnie and CFMEU v BHP Steel the latter construction of s 298K(1)(d) was adopted. If applied in the present case that construction would also result in the conclusion that there was a refusal to employ. In this case there was a refusal to employ the Belandra employees when Belandra said, in September 2001, that it would not offer reemployment to the Belandra employees. The question whether there were any vacancies to be filled by the Belandra employees, then, is a matter which the respondent can raise in relation to the existence of a proscribed reason for the refusal, with a view to rebutting the presumption that the refusal was for a proscribed reason. However, if it is shown that Belandra contrived to have no vacancies through its decision not to employ, this argument might not succeed.

was there an alteration to the position of an employee of belandra to the prejudice of that employee. 68 The applicant argued that, contrary to s 298K(1)(c) of the Act, Belandra altered the position of the Belandra employees to their prejudice when it decided, in September 2001, not to reemploy the Belandra employees. The argument was that the employees had an expectation just prior to the making of the decision that they would be reemployed. When the expectation was not fulfilled by Belandra, their position was altered to their prejudice. The prejudice lay in the elimination of the job security which they previously had. The expectation was said to arise from the statements made after the fire by directors of Belandra to the effect that Belandra intended to reemploy the workforce. Belandra acted consistently with this approach by deferring payment of severance entitlements. 69 A necessary part of the expectation created by Belandra when it indicated its intention to reemploy the workforce after the fire was that the Belandra employees would have been taken back on the basis of seniority. That follows from cl 2.1.6 of the 2000 Agreement which provided: 'The employer recognises they system of seniority. Seniority will be administered by the Consultative Committee, recognising that employees being employed on the basis of seniority have the skills required for the jobs available.' 70 It is now established that a prejudicial alteration to the position of an employee may occur without any change in the employees' legal rights. In Community & Public Sector Union v Telstra Corporation Ltd (2001) 104 IR 195; [2001] FCA 267 (Telstra), the Full Court was concerned with whether an email, sent by the managing director of the Employee Relations Group to managers and team leaders in that Group, altered the position of employees to their prejudice. It was found that the email instructed the managers when selecting employees for redundancy, to give more favourable treatment to employees who agreed to sign individual contracts rather than to employees who wanted their terms and conditions of employment to be governed by an award or collective agreement. The Full Court said at par 17-19: '17. The question is whether, by sending the e-mail to its recipients, Telstra had altered the position of any of its employees to the employee's prejudice within the meaning of s 298K(1)(c). In Patrick Stevedores (at 18) the majority of the High Court held that the section covers "not only legal injury but any adverse affection of, or deterioration in, the advantages enjoyed by the employee before the conduct in question". The majority also observed (at 20) that the reorganisation of companies within the Patrick Group resulted in the security of the employer companies' businesses being "extremely tenuous" with the "security of the employees" employment [being] consequentially altered to their prejudice'. The reorganisation did not directly affect or alter any legal rights or obligations of the employees but it left their future employment less secure. Although this issue was not in dispute, the majority appears to have had no difficulty in accepting reduced security of future employment as falling within s 298K(1)(c) because it brought about an adverse affection of, or a deterioration in, the advantages enjoyed by the employees before the reorganisation. 18. Where the alteration of position is alleged to be indirect or consequential, as in Patrick Stevedores and in the present case, a difficult question may arise as to whether a prejudicial alteration of position has in fact occurred. Answering that question may involve questions of degree. It is sufficient for present purposes to say that if the prejudicial alteration is real and substantial, rather than merely possible or hypothetical, it will answer the description in s 298K(1)(c). 19. Before the sending of the e-mail Telstra's employees employed under awards and certified agreements enjoyed the benefit of being subject to redundancy only in accordance with a process which rated their eligibility for redundancy on the basis of merit, which was to be determined by application of the five principal criteria stipulated for the resource rebalancing process. There was an adverse affection of, or deterioration in, that benefit after the sending of the e-mail as a result of the additional detrimental criterion applicable to employees employed under awards or certified agreements. The detrimental criterion was real and substantial for the employees whom it affected.' 71 It follows that, even if the Belandra employees had no legal right to reemployment, the fact that their expectation of reemployment, raised by the employer, was disappointed amounted to an alteration of their positions to their prejudice. 72 The next issue raised is whether a prejudicial alteration of position under s 298K (1)(c) can only occur if an employment relation exists at the time of the alteration. Both the language of the Act and authority suggests that this is not the case. The language of s 298K(1)(c) contrasts with the language of s 298K(1)(b) in that the injury referred to in (b) is in the "employment", whereas the alteration referred to in (c) is to the "position" of an employee. Further, "employee" is to be read in the extended sense provided for in s 4(1), namely, "… a person whose usual occupation is that of employee". It will be recalled that in Linehan a meat worker was employed under an award which provided for regular daily hire. That meant that the employment came to an end at the end of each day, but the engagement continued until terminated by notice. While the engagement subsisted, the employee was obliged to offer himself for work unless he was notified that he was not required. Ellicott J found that the employer had altered the applicant's position to his prejudice by failing to recognise his expectation of reemployment in accordance with his engagement as a regular daily employee. His Honour said at 61-2: '… I am satisfied beyond reasonable doubt that he was engaged with the status of a regular or permanent employee who, although his employment terminated at the end of ordinary working hours on each day, was entitled to certain benefits including the expectation of work each day if, pursuant to his obligation to do so, he turned up and it was available. He was also entitled to annual leave and sick leave payments. When his employment ended on 21st December, 1979, and the company refused to treat him thereafter as having regular or permanent status he lost this status and the expectations and benefits that went with it. By doing so, the defendant altered Mr. Foley's position to his prejudice.' [emphasis added] 73 Gray J addressed the issue in Gilbertson in the passage extracted at par 39 of these reasons. He held that there may be a prejudicial alteration to the position of a person with whom there is no longer any employment relationship subsisting. 74 In September 2001, before Belandra decided not to reemploy them, the Belandra employees were persons whose usual occupation was that of employee. They had been employees of Belandra until 20 June 2001, and immediately afterwards they were waiting to be reemployed by Belandra when the works reopened. Therefore, although the Belandra employees were not in an employment relationship with Belandra at the time of the decision not to reemploy them, they were employees within the extended definition of employee in the Act. They were therefore in a position which, if altered to their prejudice, could found a claim to a breach of s 298K(1)(c). 75 The respondents then contended that even if the position of the Belandra employees was susceptible to prejudicial alteration, no such alteration had occurred because Belandra had no obligation to reemploy them. Nothing in the 2000 Agreement, it was contended, gave the employees any right to a job after their employment was terminated. There was therefore no prejudice to their position. They were not employed by Belandra before the decision, and they remained not employed by Belandra after the decision. 76 Whilst it may be accepted that the employees had no legal right to reemployment, the respondents' contentions do not meet the case put by the applicant. That case is based on the denial by Belandra of the expectation of reemployment raised by Belandra. Linehan and Gilbertson show that the failure of an employer to fulfil an expectation which falls short of a legal obligation may constitute alteration to the position of an employee to the prejudice of that person. 77 The respondents also argued that Belandra had not acted against any individual employee, and that s 298K was directed only to conduct that was taken against an individual employee. They relied on a passage in the judgment in BHP Iron Ore Pty Ltd v Australian Workers' Union & Ors (2000) 102 FCR 97: [2000] FCA 430 (BHP v AWU) at 35 as follows: 'It has to be borne in mind, in construing s 298K, that it proscribes conduct by "an employer" directed to "an employee" or "other person" (emphasis added). That use of the singular suggests that the alleged injury or alteration of position has to be examined in the light of the circumstances of each individual employee. (it is not the point that in the interpretation of statutes, the singular ordinarily includes the plural; here we are concerned with the indications of legislative intention to be discerned from the actual language used.) It is also significant that the conduct struck at by each paragraph of s 298K is expressed by an active verb: 'dismiss', 'injure', 'alter the position', 'refuse to employ', and 'discriminate'. That implies that the proscription is essentially against an intentional act of the employer directed to an individual employee or prospective employee.' 78 BHP v AWU concerned offers of individual agreements made to all employees. The prejudicial alteration which was alleged was the reduction in collective bargaining power of the union. As the Full Court pointed out, any reduction in union power was the result of some employees accepting and some rejecting the offers. The offer "of itself, did not change, in either absolute or relative terms, the remuneration or any of the conditions of employment of the employee to whom the offer was made" (at par 38). The above passage must be understood in this context. Indeed, in Telstra, the Full Court explained the passage, at par 21, as follows: 'Telstra also relied on the observation by a Full Court of this Court in BHP Iron Ore Pty Ltd v Australian Workers' Union (2000) 171 ALR 680 at [35] that the proscription in s 298K(1) "is essentially against an intentional act of the employer directed to an individual employee or prospective employee". Telstra contended that the e-mail was not an intentional act directed at any individual employee. However, the observation of the Full Court also holds true where the act is intentionally directed at a number of unidentified employees. The e-mail in its terms discriminated against each employee of Telstra who was employed under an award or a certified agreement. Accordingly, liability arises where the conduct is directed at a number of ascertainable employees as well as against a particular employee.' [emphasis added] 79 This latter passage applies to the present case. By refusing to reemploy its previous workforce, Belandra acted against the ascertainable group of employees who were formerly employed by Belandra under the 2000 Agreement. Each employee was no less individually targeted because all of the Belandra employees were prejudiced by the change in their individual positions. 80 Finally, the respondents' written submissions included the following argument: 'Which of the former employees had their positions altered to their prejudice? It was not known by anyone how many could possibly be re-employed. Not until the facts of any possible new operation emerged in 2002 could it be known whether prejudice occurred ….' 81 The respondents relied on a passage in Maritime Union of Australia & Ors v Geraldton Port Authority & Ors (1999) 93 FCR 34; [1999] FCA 899 (Geraldton) to support this argument. In that case, the Geraldton Port Authority decided to reduce the size of its workforce. A voluntary redundancy program was implemented. For those who declined voluntary redundancy, the Authority threatened to use the redeployment provisions of the Public Sector Management Act 1994 (WA). In response to the argument that the threat to use the redeployment provisions was an alteration to the position of the employees to their prejudice, RD Nicholson J said, at par 265: 'In my opinion it follows that the prospect of redeployment cannot in itself necessarily constitute a threat to injure or a threat to alter the position of an employee to the prejudice of that employee. Until the facts of the redeployment fall out it is not known whether they will be injurious or prejudicial. It remains open, as the PSM Regulations expressly acknowledge, that redeployment could take place either without injury or prejudice or with enhancement. The second applicants cannot therefore now establish a threat to injure in employment or a threat to alter their position in this respect. Evidence which established that the isolated location of Geraldton meant that redeployment in that area would be difficult is not evidence which establishes the necessary injury or prejudicial alteration. In the circumstance of this matter s 298K(1)(b) cannot operate in respect of a threat to redeploy and would only operate where there was evidence arising from a particular proposed redeployment. Even then, the fact that provision for redeployment formed part of the conditions of employment would require close consideration.' 82 The circumstances in Geraldton are distinguishable from the circumstances in the present case. In Geraldton, the alteration to the position of the employees, namely, their redeployment, had not occurred. It was in prospect. His Honour was not able to determine whether the redeployment would be prejudicial until it had occurred and the terms of it were finalised. In the present case, the alteration to the position of the employees which is asserted is the change in the security of their employment. That alteration took place when Belandra decided not to reemploy the workforce. Hence, the reference to Geraldton does not assist the respondents. 83 In the result, the decision of Belandra to refuse to reemploy the Belandra employees constituted an alteration to the position of each of them to their prejudice within the meaning of s 298K(1)(c). 84 The applicant has discharged the onus in demonstrating that Belandra was an employer and that it both refused to employ the Belandra employees, and altered their positions to their prejudice. Belandra's arguments that its conduct was not for a prohibited reasons must now be considered.

the causal link 89 The respondents then argued that the causal link required by s 298K(1) between the conduct, namely the refusal to employ or the prejudicial alteration, on the one hand, and the reason, namely the entitlement to the benefit of the agreement, on the other hand, was lacking. The written submissions of the first, fourth and fifth respondents stated, at par 106: '… the circumstance that it is the application of an industrial instrument in a workplace that is the cause of the situation that an employer wants to address does not make the application of the industrial instrument to the employees concerned the reason for the action taken by the employer to address that situation.' 90 A distinction between the cause of the situation and the reason for the action was explained by Merkel J and Finkelstein J in Greater Dandenong City Council v Australian Municipal, Administrative, Clerical and Services Union (2001) 112 FCR 232; [2001] FCA 349 (Greater Dandenong). The council employed people to provide home and community care services. Legislation was introduced which required a proportion of council expenditure to be the subject of competitive tendering. The council decided to put out to competitive tender the home and community care services. Two bids were received. One was an in-house bid, and the other was from an organisation called Silver Circle. The Silver Circle bid was for $6.6 million and the in-house bid was for $7.7 million. The difference in price was largely accounted for by the fact that the award covering Silver Circle employees provided less pay for the same work than the award covering council employees. The council was aware that if the Silver Circle offer was accepted, the council employees would be made redundant, and they would be engaged, at least initially, by Silver Circle. They would do the same work as before, but would be paid less to do it. The council accepted the Silver Circle tender. The trial judge, and Wilcox J on appeal, held that by accepting the Silver Circle tender, the council altered the position of the employees to their prejudice because they were entitled to the benefit of the award covering council employees. This conduct amounted to a breach of s 298K(1)(c) and s 298L(1)(h). Merkel J did not accept that the employees had established that the higher award entitlements was "an operative reason" for the council's conduct. He said, at par 164: '… the cases demonstrate that s 298K is not concerned with the cause of the prejudicial conduct. Rather, it is concerned with the employer's reason or reasons for engaging in that conduct. Thus, there can be a significant difference between the employer's subjective reason for engaging in prejudicial conduct and the objective circumstances that led to the employer engaging in the conduct.' 91 He continued, at par 167: 'In my view the proper inferences to be drawn from the primary facts found by the primary judge are that an operative reason for the council's resolution to accept Silver Circle's tender was its lower price and that a circumstance that led to it accepting the lower price was the higher Award and Agreement entitlements of the HACC [council] employees. While the higher entitlements may be causally linked to the council's acceptance of the Silver Circle tender, the evidence does not support the primary judge's conclusion that they were an operative reason for the council's acceptance of the tender. No councillor or council document stated that the entitlements were a reason for the council's acceptance. The inference drawn by the primary judge to the contrary was based on an approach that, erroneously, failed to distinguish between the operative reason for the council acting and the circumstances that led to the price of the in-house bid being higher than the price of the Silver Circle bid. The fact that the councillors were aware of, or considered, those circumstances does not make them a reason for their decision. This is not a case of a council not being prepared to pay Award or Agreement entitlements or seeking to discriminate against its employees by reason of those entitlements. Rather, it is a case of a council, that is required by law to engage in a competitive tendering process, accepting the most competitive tender which met the objective criteria it specified.' [emphasis added] 92 Merkel J, however, dismissed the appeal because the council had failed to discharge the onus of showing that the acceptance of the Silver Circle tender was not because of the employees' entitlement to the benefit of an industrial instrument. 93 Finkelstein J would have allowed the appeal, and also made a distinction between the cause of conduct and the reason for conduct. He said at par 199: 'According to these cases, to decide whether an employee has been unlawfully dismissed, it is necessary to ascertain the true motive for, or purpose of, the dismissal. If there is some legitimate reason for the dismissal, such as the desire to avoid bankruptcy or the need to maintain a profitable operation, the dismissal will be lawful. It matters not that the cause of the impending bankruptcy or the unprofitable trading is the high rate of wages payable under an award or certified agreement. That is to say, although the benefits produced by an award or certified agreement have caused the problem which the employer seeks to address, that does not necessarily make those benefits the "reason" or motive for his act.' [emphasis added] 94 He also said, at par 204: 'Thus, there has been an unbroken line of State and federal authority in favour of the proposition that, for the purpose of deciding whether there has been an unlawful dismissal for the reason that an employee is entitled to the benefit of an award or certified agreement, it is necessary to draw a distinction between the "reason" or motive behind the dismissal and what produced that motive.' [emphasis added] 95 And finally, at par 216, his Honour said: 'It seems to me that the trial judge failed to distinguish between the immediate reason for the relevant act, be it the dismissals or the acceptance of the Silver Circle award, and the proximate reason for that act. I can make the point by reference to two sentences in the reasons. The trial judge said: 'The major and decisive factor in the Silver Circle bid's acceptance was its price. The major and decisive factor in the difference in price was that, as everyone conceives it, Silver Circle would remunerate the workers doing HACC work under the Silver Circle award and not the council's industrial instruments.' The finding that price was a "major and decisive factor" is plainly correct. To describe the other "major and decisive factor" (that the price difference was the result of different award rates) as a motive for the decision is where the error is to be found. This "major and decisive factor" is not what motivated the decision but merely explains the difference in price.' [emphasis added] 96 In Maritime Union of Australia v CSL Australia Pty Ltd (2002) 113 IR 326; [2002] FCA 513, Branson J said, at par 54: 'It is difficult, if not impossible, to identify the ratio decidendi of Greater Dandenong. However, two members of the Full Court (Merkel and Finkelstein JJ) concluded that the learned primary judge had erroneously failed to distinguish between the operative (or immediate) reason of the Council's conduct and the cause (or proximate reason) for the Council's conduct. While, as it seems to me, this distinction may in many cases be easier to articulate than to draw, especially in respect of a statutory provision that recognises the possibility of a number of reasons having a causal connection with conduct, I consider that I should be guided by the approach taken by Merkel and Finkelstein JJ who constituted a majority of the Full Court in Greater Dandenong on this issue. I am fortified in my decision to adopt this approach by the fact that the approach appears to me to be consistent with that adopted by R D Nicholson J in MUA v Geraldton.' 97 The passage from Geraldton, to which Branson J referred, so far as presently relevant stated: 'I agree with the submission for the GPA [Geraldton Port Authority] that the words "for" in s 298K(1) and "because" in s 298L(1) require a causal connection between the act of the employer which injures the employee in his employment or alters his position to his prejudice and the status of the employee as a union member, in the case of s 298L(1)(a), or as a person entitled to the benefit of the Award or Agreement, in the case of s 298L(1)(h). The inquiry is directed to the reasons of the employer. I also agree [sic] the fact that there is some connection between the employer's act and the employee's union membership or entitlement to the benefits of an award does not mean that the employer did the act because the employee was a union member or entitled to the benefit of the award. Whether an employer was actuated by a prohibited reason or reasons which included a prohibited reason is a question of fact. It will often involve questions of judgment and the characterisation of the employer's reasons: cf Wood v City of Melbourne (1979) 26 ALR 430. For example, if an employer made a decision to make his operation more efficient or to facilitate the provision of services to the service users at a lower cost (and for no other reason) that action is not open to the inference of having been taken for reasons which include that the employees are members of a union or have the benefit of an award.' 98 The respondents, rightly, accepted that the existence of the necessary causal connection will involve questions of judgment and characterisation. By referring to a distinction between a reason for an action and a cause of the situation which an employer seeks to address, Merkel and Finkelstein JJ in Greater Dandenong did not establish any principle to be applied to the construction of the section. They merely engaged in a process of characterisation of the particular facts before them. In the end, the question remains whether the conduct was carried out "because" of the specified conduct. It must be remembered that s 298L(1) is an interpretation section. The section defines what constitutes a prohibited reason for the purposes of s 298K(1). Thus, the process of characterisation must focus on the "because". No verbal formula, whether by reference to a distinction between reason and cause, or between an immediate cause and a proximate cause, can take the place of the statutory requirement that the conduct be carried out "because" of the specified reason. 99 This approach is supported by Lewis Construction Co Pty Ltd v Martin & Ors (1986)70 ALR 135; [1986] 17 IR 122, which was relied upon by the applicant. Mr Martin was dismissed by his employer, Lewis Construction Co Pty Ltd (Lewis). The trial judge found that he had been dismissed because he was a member of the Builders Labourers' Federation. Gray J (with whom Woodward and Jenkinson JJ agreed) said at 137: 'The argument on behalf of Lewis was that the learned trial judge had found that the relevant officers of Lewis believed that dismissal of all members of the BLF employed by Lewis was the only course open to it as a means of countering a campaign or campaigns then being conducted by the BLF. Because of this finding, the fact that Mr Martin was a member of the BLF did not amount to a reason why he was dismissed; membership of the BLF was no more than the criterion for selection of those who were being dismissed.' 100 And, at 139, he said: 'In failing to lead any evidence to support the proposition that Mr Martin's membership of the BLF was not a substantial and operative factor in the decision to dismiss him from his employment, Lewis failed to exclude that reason as such a substantial and operative factor, and therefore failed to discharge the onus of proof imposed upon it by s 5(4) of the Act. The attempt to characterise Mr Martin's membership of the BLF as a factor in a reason, rather than a reason in itself, must also fail. The Act and the authorities do not distinguish between a "reason" and a "factor"; indeed, in Bowling, these terms are used interchangeably. The attempt to decide whether a particular circumstance was a factor in a reason, or a reason itself, tends to distract from the essential question, which is whether that circumstance was a substantial and operative factor or reason in the decision.' [emphasis added] 101 This legal analysis of the issues of causation will be applied to the finding of fact concerning the reasons for Belandra's action, which are made later in these reasons.

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