which suit their particular circumstances. The Act provides such choice …. [Explanatory Memorandum, May 1996, p 1]
Amongst what the Memorandum called the key reforms were "providing for effective choice and flexibility in reaching both collective and individual agreements …" and "ensuring freedom of association and the choice to join or not to join industrial associations …".
38 In his second reading speech, the Minister for Industrial Relations also emphasised that the manner of industrial arrangements was a matter for employers and employees. The speech read, in part:
Employers and employees in the federal jurisdiction will be able to choose whether they want informal over-award arrangements, or whether they want to formalise their agreements. For those who want formalised individual agreements, we have provided Australian workplace agreements, AWAs. If they prefer formalised collective agreements, they will be able to choose certified agreements, CAs, made with unions or made directly between employers and employees. For those who want agreements under a state jurisdiction, we are providing access to such agreements, bearing in mind that it is a matter of consent for the parties if they choose to go that way. The bill does not discriminate in favour of one form of agreement over another - collective or individual, union or non-union. These are matters for decision by employers and employees, according to their own circumstances and their own perception of how their interests are best served. (Hansard, 23 May 1996, House of Representatives, p 1300).
39 The WROLA Act amended the statement of objects in s 3, presumably to signal the change of direction. Section 3 relevantly reads:
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:
(a) …
(b) ensuring that the primary responsibility for determining matters affecting the relationship between employers and employees rests with the employer and employees at the workplace or enterprise level; and
(c) enabling employers and employees to choose for the most appropriate form of agreement for their particular circumstances, whether or not that form is provided for by this Act; and
(d) providing the means:
(i) for wages and conditions of employment to be determined as far as possible by the agreement of employers and employees at the workplace or enterprise level, upon a foundation of minimum standards; and
(ii) to ensure the maintenance of an effective award safety net of fair and enforceable minimum wages and conditions of employment; and
(e) providing a framework of rights and responsibilities for employers and employees, and their organisations, which supports fair and effective agreement-making and ensures that they abide by awards and agreements applying to them; and
(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
(g) ensuring that employee and employer organisations registered under this Act are representative of and accountable to their members, and are able to operate effectively; and
(h) enabling the Commission to prevent and settle industrial disputes as far as possible by conciliation and, where appropriate and within specified limits, by arbitration
….
40 According to par 3(c), a principal object of the WR Act is to enable the parties to determine freely the form of an industrial agreement. In conformity with this, the Act prohibits "any action with intent to coerce another person to agree or not to agree" to make or terminate a certified agreement: s 170NC. Compare ss 170WG, 170MU, 170WE and 170WF. As par 3(c) indicates, the WR Act does not reflect a preference for any particular kind of agreement (e.g., a collective certified agreement) over any other (e.g., an individual agreement made directly with an employee). Relevantly, it does not prefer an agreement provided for under Commonwealth law over an agreement made pursuant to State legislation. Indeed, the WR Act contains specific provisions that recognise the operation of State legislation and State industrial systems: see e.g., s 111AAA(1). Although the WR Act indicates a preference for bargaining to occur at the workplace level, in contrast to former provisions of the IR Act, it contains no provision requiring an employer to enter into negotiations with a union for an agreement. The WR Act provides, of course, for situations in which employers and employees fail to agree. For example, it provides a limited immunity from suit for protected industrial action taken by employers, employees and unions in pursuit of claims, including claims for a particular type of agreement: see Part VIB, Div 8 and Part VID, Div 8. It is, however, only in relatively limited circumstances that the AIRC may terminate bargaining and industrial action and proceed to arbitrate a dispute: ss 170MW and 170MX.
41 An outcome of this legislative history is that numerous provisions in Part XA have direct counterparts in the IR Act as it stood immediately prior to the enactment of the WR Act. For example, the antecedents of s 298K and s 298L are to be found in s 334 of the IR Act as it formerly was.
42 Section 298M was introduced as subs (3A) of s 334 of the IR Act by par 33(c) of the 1993 Reform Act. The Reform Act, in pars 33(a) and (b), also made other amendments to s 334 which related particularly to the introduction of enterprise flexibility agreements. In relation to the amendments made by s 33 of the 1993 Reform Act, the Explanatory Memorandum stated:
This clause amends section 334 of the Act to prohibit action against employees that is inconsistent with the notion that they should be free to choose whether or not to participate in the certified agreement or an enterprise flexibility agreement.
The introduction of s 298M may, as the applicants and the respondent submitted, have reflected a legislative concern to ensure that the capacity of registered organisations to participate in enterprise flexibility agreements and their negotiation would not be improperly subverted by employers who sought to undermine their membership in the workplace.
43 Referring to passages in Heidt v Chrysler Australia Ltd (1976) 26 FLR 257 at 266 and Bowling v General Motors-Holden's Pty Ltd (1980) 50 FLR 79 at 94 concerning the policy and purpose of s 5 of the C & A Act, the applicants submitted that Part XA encompasses the policy and purposes of its predecessor provisions, namely, to protect the existence and functioning of organisations previously protected by s 5 of the C&A Act and, subsequently, s 334 of the IR Act. The amendments introduced by the WROLA Act did not, so the applicants submitted, diminish the scope of that protection.
44 The respondent submitted that, on the contrary, the WROLA Act amendments had effected a fundamental change. In relation to s 298M, the respondent submitted:
[A]lthough one may examine the circumstances and purpose behind the enactment of s 298M as s 334(3A) by the Reform Act, the setting and purpose of the section was so changed by the WROLA Act amendments as to render such an examination useful but not conclusive. The section is no longer concerned with the integrity of the agreement-making process. It is not concerned to encourage the place or promote the role of unions. It is, rather, focussed upon the individual employee, and upon the integrity of his or her choices in the matter of union membership. Part XA of the Act appears to be based upon a philosophy that 'free' means free from inducement by threats, promises or otherwise.
More generally, the respondent submitted:
The enactment of Part XA - in name and purpose encapsulating a fundamental human right (freedom of association) not previously recognised by the legislation - must be accorded the significance it clearly warrants. It brought with it substantive and procedural enhancements to the previously limited range of protections available to employees who had been dismissed on account of union membership, for instance.
45 Referring to the Explanatory Memorandum to the WROLA Act, the Minister contended that the fundamental purpose of Part XA was to protect an employee's "right to join or not to join a union". The Explanatory Memorandum relevantly stated:
This [Part] proposes amendments which will give effect to the principles of:
· freedom of choice;
· freedom of association (the choice to be in a union, the choice of which union and the choice not to be in a union); and
· equal treatment before the law.
[Explanatory Memorandum, May 1996, paragraph 16.1]
Part XA was not, so the Minister submitted, intended to guarantee that "as a member of a union, an employee is entitled to have his or her terms and conditions of employment regulated by an agreement to which his or her union is a party". In particular, the Minister submitted that:
[T]he freedom of association provisions in Part XA of the WR Act do not confer rights on union members to engage in collective bargaining as to their terms and conditions of employment ….
46 The seemingly irreconcilable conflict between the applicants on the one hand and the respondent and the Minister on the other diminishes significantly when the terms of Part XA are examined. First, Part XA must be read in its statutory context: see David's Distribution Pty Ltd v National Union of Workers (1999) 165 ALR 550 ("David's Distribution ") at 583 per Wilcox and Cooper JJ.
47 Secondly, the objects of the WR Act, set out in s 3, fall for consideration. They are numerous and the pursuit of one may, in some circumstances, be detrimental to the attainment of another. Compare par 3(g) (the effective operation of registered organisations) with par 3(f) (freedom of association). Bearing in mind that all objects in s 3 are "principal" objects, the legislature presumably intended that, so far as possible, the Act should be construed so as best to accommodate all of the relevant objects set out in that section. The emphasis of the WR Act is apparently different from that of the IR Act. Paragraph 2(e) of the previous legislation which referred to encouraging "the organisation of representative bodies of … employees" no longer appears. Paragraph 3(f) has been added, although there are also par 3(g), par 3(d)(ii) (referring to an effective award safety net) and par 3(h) (referring to AIRC's conciliation and arbitration functions).
48 The additional objects of Part XA, set out in s 298A, serve to emphasise that the Part is directed to ensuring that employees enjoy the freedom to join or not to join a union as they see fit and, if they join, that they can join the union of their choice. That is made explicit by par (a) of s 298A. Par (b) expresses a consequential object, namely, that an employee is protected from discrimination or victimisation in consequence of that choice. In protecting an employee's right to choose, Part XA protects the right to belong to a union and to participate in its affairs: see, for instance, s 298K and pars 298L(1)(a), (e) and (f). Employees are also protected against action by an employer to induce them to relinquish their union membership (s 298M) as well as against a range of prohibited conduct by industrial associations: see, e.g., ss 298Q and 298R.
49 A further indicium of the purpose of Part XA is that it does not confine its attention to organisations registered under the WR Act but protects an employee's choice to belong to a State or Territory registered or recognised body as well.
50 A consequence of the protection afforded by Part XA is that in a workplace in which employees choose to join unions (and to accede to collective bargaining on their behalf), the unions (and the collective bargaining process) also receive protection. This was recognised by Wilcox and Cooper JJ in David's Distribution where their Honours said at 583:
In the context of the Act, Part 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. [Emphasis added]
That is, in the context of that case, their Honours observed that employees had the right to choose whether to join together to participate in collective action. See also Construction, Forestry, Mining and Energy Union v BHP Steel (AIS) Pty Ltd [2000] FCA 1008 at [48] and Burnie Port Corporation Pty Ltd v Maritime Union of Australia [2000] FCA 1768 at [26]. Other provisions of the Act facilitate the collective bargaining process: see, e.g., Part VIB, Div 8.
(b) Construction of s 298K
51 The applicants contended, and the respondent denied, that there has been conduct by the respondent which amounts to injury and prejudice within the meaning of pars (b) and (c) of s 298K(1) of the WR Act. The applicant's case was that:
To the extent that the spread of WPAs progressively diminishes the influence and effect of collective action by the group members …, at the very least, their position must be held to have been altered to their prejudice, and it may also be characterised as an injury in their employment.
The applicants further contended that:
[T]ogether with its offer of WPAs BHPIO gave employees who entered into WPAs the option of receiving a lump sum payment for accrued sick leave. Employees who did not sign WPAs were not given the option of having their sick leave paid out in this manner.
52 The concepts of injury and prejudice in s 298K(1)(b) and (c) are not narrow. The High Court said in Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (1998) 195 CLR 1 ("Patrick") at 18 that:
[Paragraph] (b) covers injury of any compensable kind; par (c) is a broad additional category which 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 relevant injury or prejudice is that done, or threatened to be done, by an employer to an employee. In this connection, the Full Court said at an earlier stage of this proceeding (on an appeal from the grant of interlocutory relief) that:
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.
See BHP Iron Ore Pty Ltd v Australian Workers' Union (2000) 171 ALR 680 at 689.
53 Section 298K(1) is, upon this view, concerned with the conduct of an employer that is directed to an individual employee. This does not mean that in dismissing one employee who is a union member for a prohibited reason, an employer commits a civil wrong, and that wrong is not committed if, for the same reason, the employer dismisses all employees who are union members. The Full Court was directing its attention to the nature of the injury contemplated by the provision. That is, the conduct in question must injure an employee individually in the sense that it would have injured him or her, regardless of whether it was actually done to an individual employee or a group of employees. The relevant inquiry is whether an employer has, by the employer's conduct, injured the position of an employee individually: cf CPSU, Community and Public Sector Union v Telstra Corporation Limited [2000] FCA 844 at [24] per Finkelstein J. The Full Court must have intended to exclude conduct that injured individuals only when directed to a class of employees.
54 Before s 298K(1) can apply, it must be possible to say of an employee that he or she is, individually speaking, in a worse situation after the employer's acts than before them; that the deterioration has been caused by those acts; and that the acts were intentional in the sense that the employer intended the deterioration to occur.
55 In the Full Court, the applicants failed to establish that their claim under s 298K raised a serious question to be tried. On that occasion, the Court said at 689:
[I]t was contended that BHPIO injured certain employees when it made a general offer of improved terms and conditions, subject to entry by each offeree into an individual workplace agreement. Deciding whether or not to accept such an offer involved, so it was argued, the making of an 'invidious choice' by each employee. To impose such an invidious choice was to 'injure' the employee in his or her employment as contemplated by s 298K.
A second point at which BHPIO is said to have injured those employees who did not accept its offer occurred, on the unions' argument, when BHPIO commenced to extend, to those who did accept the offer, the improved remuneration and conditions for which it provided. By refusing to extend the same remuneration and conditions to employees performing similar work who have not accepted the offer, BHPIO is said to have again 'injured' those employees or altered their position to their prejudice.
The Full Court held, at 690, that in offering WPAs to its employees, BHPIO:
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. A change in absolute terms occurred only upon acceptance of the offer and the consequent coming into existence of a new contract of employment.
It said, also at 690:
It is true that, after some offers had been accepted by individual employees, a change can be discerned in the remuneration and conditions of employment of those employees, viewed in relation to the remuneration and conditions of employment of those employees who have not accepted the offer. However, the position of each of the latter employees has not been changed to his or her detriment by an intentional act of the employer. The relative charge which we have just identified is brought about by the acceptance by some employees, and the rejection by others, of an offer made indiscriminately to all employees.
The applicants sought to circumvent this reasoning in two ways.
56 First, as already noted, the applicants endeavoured to reformulate the injury and prejudice suffered by them as the diminution of "the influence and effect of collective action" by the employees who did not accept BHPIO's WPA offers. This reformulation does not, in my view, relevantly diminish the applicability of the Full Court's reasoning. The injury, as reformulated, does not flow directly from BHPIO's acts in offering WPAs; and no conspiracy to injure is alleged, as in Patrick. On the applicants' case, if injury has been done, it has been done because, BHPIO having made the offers, (1) a sufficiently large proportion of the workforce has accepted, or proposes to accept, them; or (2) a sufficiently large proportion of the workforce has accepted, or proposes to accept, the offers and has resigned, or threatens to resign, from the unions to which they formerly belonged. It is unclear whether the applicants assert (1) or (2).
57 The alleged injury occurred as the cumulative result of BHPIO's making WPA offers to each and every employee previously covered by EBA 3, many of whom accepted them. Had the company made only a few WPA offers, or had only a few employees accepted, then the remainder of the workforce could scarcely have suffered injury of the kind alleged.
58 The applicants also contended that BHPIO's entry into WPAs with some employees to the prejudice of other employees (i.e., those who did not accept the offer) "is directly analogous with the scheme entered into by the employer in Patricks with other persons". The High Court did not, so the applicants submitted, construe s 298K as either requiring an intentional act directed to an individual employee or as excluding from its ambit a prejudicial act constituted by an employer's agreement with "a stranger to the employment contract".
59 There is not, I think, any contrariety between the interlocutory judgment of the Full Court and the judgment of the High Court in Patrick. The points considered by the Full Court were not at issue in the High Court. In Patrick, the case proceeded on the facts as pleaded, it being assumed for the purposes of the appeal that Patrick'semployees were necessarily affected as individuals by the company's conduct. The case made against Patrick was that it participated in a scheme leading to the appointment of administrators, thereby creating a situation which immediately threatened the employment of each and every one of its employees, considered as individuals. The critical distinction between Patrick and this case is that the position of each of Patrick'semployees was necessarily directly affected by what Patrick did. Contrast this case. The allegation here is not that BHPIO injured its employees as a direct result of what it did but, rather, indirectly. That is, injury occurred because a sufficiently large proportion of the workforce accepted the WPA offers and resigned from the unions, thereby weakening the unions' bargaining position, especially with respect to EBA 4.
60 The applicants' case under s 298K is not improved by their argument that a further injury was done employees who did not accept the WPA offers because they were unable to exercise the accrued leave pay-out option. In considering a different but conceptually similar argument, the Full Court observed, at 693, that:
[A] continuing award employee who receives a promotion or some other beneficial change in his or her employment may not achieve the same increase in remuneration as a similar employee on an individual workplace agreement. However … that will be a consequence of an election between different contractual regimes for the regulation of the employment of the two groups of employees. It will not have been brought about by the active, intentional, conduct of the employer which is struck at by s 298K.
Much the same may be said of the accrued leave option. It was open to all employees to decide whether or not to accept the company's WPA offer. In so doing, employees would doubtless have considered the merits and demerits of one or other course. The difference regarding the option entitlement is a consequence of the choice made by an employee as to whether he or she would accept or reject the WPA offer made, on terms, to him or her.
61 There are other difficulties with the applicants' s 298K(1) claim. Conduct within s 298K(1) is not impermissible unless done "for a prohibited reason, or for reasons that include a prohibited reason", as defined in s 298L(1). The applicants' case was that BHPIO injured the non-accepting employees because they were members of industrial associations (s 298L(1)(a)), or because they were entitled to the benefit of an industrial instrument (s 298L(1)(h)). (In final submissions, the applicants abandoned their earlier reliance on s 298L(1)(l)).
62 Let it be assumed (contrary to the view expressed above) that the alleged injury (or prejudice) fell within s 298K(1)(b) (or (c)). It would then be presumed in this proceeding that the conduct was, or is being, carried out by BHPIO for the reasons alleged by the applicants, unless BHPIO could prove to the contrary (s 298V). Notwithstanding that s 298V would confer a significant forensic benefit on the applicants, I do not consider that their submissions on s 298L(1)(a) and (h) withstand analysis.
63 The conduct to which s 298L(1) applies is the conduct referred to in s 298K(1), that is, relevantly, the doing of the injury or prejudice referred to in pars (b) and (c). 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. These are difficult propositions to maintain on the undisputed facts.
64 It is undisputed that BHPIO offered WPAs to all of its Award employees. Did BHPIO disadvantage the non-accepting employees because of their union membership? The applicants contended that it did. They said that BHPIO diminished the bargaining power of the unions to which the non-accepting employees belonged for the reason that the non-accepting employees were union members. If BHPIO did diminish the unions' bargaining power, it could not have done so on the undisputed facts because an injured employee was a union member. Given that at the time of the alleged injury virtually all the employees to whom a WPA was offered were union members, if this injury was done because of union membership, then all employees should have been the victims of it. The applicants' case was not, however, that the injury under s 298K(1) was done to all the employees. If the applicants' contention was correct, conduct that affected all employees equally resulted in injury to some but not to others, notwithstanding that the reason for the injury was a characteristic that they all shared. This is an improbable result and highlights the fact that the injury complained of in fact flowed from the independent acts of the employees who accepted the WPA offers.
65 So too it was open to all the Award employees, most of whom were union members, to take up the accrued leave option, providing they accepted the terms on which the option was made available. They were to decide for themselves whether they wanted to enter WPAs on the terms being offered by BHPIO. The availability of the option was unrelated to union membership. The applicants' real case, so far as BHPIO is concerned, is that the company offered WPAs 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. This case is properly considered under s 298M.
66 In written submissions, the applicants referred to remarks of Wilcox and Cooper JJ in Davids Distribution, at 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. Paragraph 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. Subsection s 298L(1) (which describes what is a prohibited reason for s 298K(1) purposes) consists of fourteen 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 Part 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).
67 Paragraph 298L(1)(h) presents similar difficulties for the applicants. An employee to whom s 298L(1) refers is the employee against whom the conduct referred to in s 298K(1) is, or is threatened to be, taken. If the applicants' case was that a non-accepting employee has been injured because he or she was entitled to the benefit of the Award, EBA 3 or some other existing industrial instrument, then that case must fail on the undisputed facts. It is undisputed that the non-accepting employees retain the benefits of existing industrial instruments and nothing BHPIO has done, or threatens to do, impinges on those benefits. BHPIO cannot have done the injury because the non-accepting employees remain entitled to benefits under existing instruments.
68 As already noted, the injury on which the applicants rely is the diminution in union bargaining power said to flow from the WPAs. Injury of this kind is relevant to the creation of new rights under a new industrial instrument, particularly, EBA 4. In reality, the applicants' case under par 298L(1)(h) is that BHPIO has done the injury complained of in order to prevent or impede the unions' negotiation of EBA 4 on terms advantageous to the persons they represent. The Full Court has recently held in Burnie Port Corporation Pty Ltd v Maritime Union of Australia [2000] FCA 1768 at [23] that par 298L(1)(h) relates to a benefit to which an employee is entitled at the time of the impugned conduct. It does not relate to prospective entitlements.
69 In my view, the applicants' claims under s 298K(1) are misconceived. In the event that I am wrong, however, I set out below the evidence concerning BHPIO's conduct and its reasons for it. If it were necessary to do so, I would find that BHPIO has rebutted the presumption to which s 298V gives rise.
(c) Construction of s 298M
70 The applicants' case in summary was described in their written submissions as follows:
· The Respondent wanted to rid itself of the influence and role of unions in its workplace.
· The Respondent offered inducements to employees which involved those employees eschewing their rights to union representation in collective bargaining by entering into workplace agreements.
· The Respondent knew that in other workplaces when individual agreements were instituted employees overwhelmingly did not retain membership of their union.
· The agreements offered by the Respondent were for a fixed period at the expiration of which employees could bargain for a new agreement.
· The Respondent's purpose would be frustrated if, at the expiration of their agreements, the employees banded together again and sought to bargain collectively.
· A purpose - or a necessary consequence of the employer's conduct - was that those employees would leave the unions in which they held membership.
· This is what happened.
71 Section 298M relevantly prohibits an employer from inducing an employee to stop being a member of an industrial association. In this case, the Full Court has already said, at 696, that:
Construed in its context … it appears to us that s 298M will be contravened by conduct that leads or moves, by persuasion or influence, an employee to stop being a member of a union. It further appears to us that it is essentially a question of fact, to be determined by looking at all the circumstances of the case. To this extent, we do not find it helpful to analyse the issue, as the primary judge did, in terms of an absolute prohibition where intention is irrelevant. On the contrary, in resolving the question of fact which we have just identified, the existence of a particular intention may be a significant consideration.
As Finkelstein J observed in Finance Sector Union v Commonwealth Bank of Australia [2000] FCA 1372 ("Finance Sector Union") at [38], this is a difficult passage.
72 The terms of s 298M provide that the section extends to situations in which an employer makes a threat or promise, the carrying out of which is, presumably, conditional upon an employee ceasing his or her union membership. Plainly enough, the provision extends beyond threats or promises as such since it uses the words "or otherwise". BHPIO submitted that the words "or otherwise" were to be construed by reference to the words "threats or promises", with the result that the words in parenthesis in s 298M - "whether by threats or promises or otherwise" - set up a genus of relevantly inducing conduct. This conduct was the treatment or proposed treatment upon fulfilment of a condition or conditions. BHPIO contended that conduct would only fall within s 298M in -
a situation in which one person seeks to influence another to act in a certain way by treating, or promising or threatening to treat, that other person differently according to whether he or she acted in that way. There must, in other words, be a condition attached to the treatment or proposed treatment.
There is, I think, no justification for reading the provision as narrowly as this. The words in parenthesis are intended, so it seems to me, to show that s 298M is not limited to the situation where an employer induces by threats or promises or the like. It forbids any employer from inducing an employee to the forbidden end by any means. This accords with the view taken of the provision by the Full Court.
73 BHPIO submitted, in the alternative, that the concept of "persuasion" referred to by the Full Court -
can extend only to the conscious, ostensible words and acts of the putative inducer directly related to the end to be achieved, and to a situation where that end is in fact intended by that inducer.
I do not agree that the concept of persuasion can be limited only to the use of "ostensible words". This too would be inconsistent with the approach adopted by the Full Court: see 171 ALR at 700. But is it necessary to show that an employer intended an employee to stop being a member of an industrial association when a contravention, or threatened contravention, of s 298M is alleged? The Full Court touched on this in 171 ALR at 696, in the passage set out earlier. It is not clear, however, when the passage is read in the context of the whole judgment, whether an employer against whom a breach of s 298M is alleged must intend his or her employee to stop being a union member.
74 On one view, s 298M is not concerned with the employer's state of mind. It is concerned with the conduct of an employee and with the reason for it. That is, the focus of the provision, as noted by Finkelstein J in Finance Sector Union at [39], is on " the mind of the allegedly induced person (why did he act) and not on the mind of the defendant (what did he intend to achieve?" Contrast s 298M, which makes no express reference to intent, with ss 298K(1) and 170NC(1), which explicitly incorporate notions of reason or intent.
75 Finkelstein J concluded, in Finance Sector Union, that intention was an essential ingredient. His Honour said at [38]:
The difficulty arises from the final sentence [of the above passage from the Full Court's judgment] where it is said on the factual issue raised 'intention may be a significant consideration'. [Finkelstein J's emphasis]. On one view of the matter, either intention is or is not a relevant consideration. If it is to provide assistance in only some cases, what is the character of that class of case?
His Honour considered that elsewhere in the Full Court's judgment the Court indicated that intention was an essential component of a contravention of s 298M: see Finance Sector Union [40] - [41].
76 As the Full Court said, whether there is conduct in contravention of s 298M is essentially a question of fact. Where an employer's express threats or promises constitute the inducement, the employer's intention may be so patent that, in a practical sense, no question concerning intention arises. But where more subtle persuasion or influence are relied upon, the issue of intention may prove to be critical. That is, I think, the qualitative difference in circumstances to which the Full Court was referring when it said, "the existence of a particular intention may be a significant consideration" (emphasis added). Cf Human Rights & Equal Opportunity Commission v Mount Isa Mines Ltd (1993) 118 ALR 80 where, at 86 and 102, Black CJ and Lockhart J adopted a like approach in considering claims under the Sex Discrimination Act 1984 (Cth).
77 As the respondent said:
[N]o sophisticated investigation into purpose or intention will be necessary in the case of promises, threats or persuasion: here the overt conduct of the employer will supply the necessary evidence of purpose. If an employer in fact promises a pay increase for any employee who leaves his or her union, it will avail the employer nothing to say that a resignation from the union was not really intended.
Conversely, where the connection between the employer's act and the employee's resignation from a union becomes more attenuated, evidence about the employer's state of mind will increase in importance. In the absence of an express promise or threat, there must be something to connect the employer's words or deeds with the outcome referred to in s 298M. The employer's state of mind (i.e. intention or purpose or motive) and the understanding of the employee may be the connection. A relevant state of mind may be inferred from all the circumstances of the case, including any communications between the parties. The employer's state of mind is an important part of the applicants' case in this proceeding.
78 The applicants submitted that, if intention were essential to establish an inducement within the meaning of s 298M, then s 298V applied, with the consequence that the requisite intention was presumed unless BHPIO proved otherwise. It was not said that s 298V applied if (as I hold) the employer's state of mind is at most an important evidentiary component of a s 298M case. If I am wrong, however, and intention is an essential substantive ingredient, I would still hold that s 298V has no application in a s 298M case.
79 Section 298K(1) makes the element of purpose a distinct constituent of the relevant delict. Conduct of the kind referred to in s 298K(1) is lawful unless carried out for a reason referred to in s 298L(1). There are a number of other provisions in Part XA which turn enlivening conduct into a delict only when a statutorily expressed purpose or intent is established: see, e.g., ss 298P, 298Q, 298R and 298S. Section 298V applies, in terms, to provisions such as these. An allegation that one or other of these provisions has been breached necessarily involves an allegation that "the conduct was … carried out for a particular reason or with a particular intent" (par 298V(a)). Moreover, it is only when the enlivening conduct is carried out "for that reason or that intent" that there is a contravention (par 298V(b)).
80 Section 298M is different from s 298K(1) (and such provisions as ss 298P, 298Q, 298R and 298S) in the way it operates. Even if there is not a relevant inducement without intention on the employer's part, the act of inducing the outcome referred to in the section is the delict defined by the statute. Section 298V cannot apply to s 298M because the correct allegation of a s 298M breach is not that there has been lawful conduct that was rendered unlawful because it was done for a particular reason or a particular intent. Instead, the allegation must be that the act of inducing the relevant outcome is itself the contravening act. The effect of the reference in s 298V to "a particular reason" or "a particular intent" is that s 298V is attracted only where a provision in Part XA identifies a specific reason or specific intention as a separate element of the delict defined within the Part. It is the existence of that reason or intent which turns lawful conduct into a civil wrong defined by the WR Act.
81 Of course, if intention were an essential element of s 298M, then the difference that I describe between s 298M and provisions like ss 298K(1), 298P, 298Q, 298R and 298S may seem merely formal. Section 298M could be rephrased to assume a form resembling these other provisions. It seems to me, however, that the Parliament has deliberately framed s 298V to fit the specific form of 298K(1) and like provisions and the fact s 298M could be rephrased is immaterial on this particular question of construction.
82 The outcomes referred to in s 298M are "to stop being an officer or member of an industrial association". They are specific and limited outcomes. The concept of membership is dealt with elsewhere in the Act with some precision: see Part IX, Div 9, especially s 269. There is simply no basis upon which it might be said that s 298M extends to outcomes beyond the cessation of membership or the holding of an office. What s 298M forbids is an employer (or a person who has engaged independent contractors) from inducing an employee (or an independent contractor) to decide to give up his or her union membership or office. The provision does not extend beyond this reach.
83 Finally, I note the observations of the Full Court, at 697, that:
Taken literally, s 298M appears to contain only a single prohibition, that is, that an employer must not, by a threat or a promise or otherwise, induce an employee to stop being a member of an industrial association. That is, if considered grammatically only, s 298M does not speak of an attempt, or of a threat, to induce. But English industrial legislation speaking of inducement has been purposively interpreted so as to pick up a threat to induce. Section 3 of the Trade Disputes Act 1906 (UK) dealt with '[a]n act … that … induces some other person to break a contract of employment … '. It was held in Morgan v Fry [1968] 2 KB 710 at 728-9 that the verb 'induces' used in that context included a threat to induce. It is appropriate to place a similar interpretation upon s 298M, since, in our view, this would give effect to the evident purpose of s 298M. This approach is reinforced by the explicit reference to 'threats' in the section.
It is (as the respondent conceded) unnecessary to delve into the question whether s 298M covers an attempt, or threat, to induce. This is because, if I found that there has been what in other contexts would be described as an attempt to induce, then that would be sufficient to ground the applicants' claim for injunctive relief under s 298U.