CONSTRUCTION ISSUES
16 Similar provisions to those which have just been set out appeared in earlier legislation. There are, however, differences in the language employed by the draftsman, some of which, Mr Barclay contends, are significant. He also submits that, because of the differences to which he points, earlier decisions of the Court and its predecessor, the Australian Industrial Court, may not be helpful in construing parts of these provisions.
17 Mr Barclay has raised some novel construction points which will require attention before the parties' submissions on the evidence are considered.
18 Protective provisions first appeared in the Conciliation and Arbitration Act 1904 (Cth) ("the C&A Act") and were later incorporated in the Industrial Relations Act 1988 (Cth) ("the IR Act") and the Workplace Relations Act 1996 (Cth) (WR Act"). The provisions in the earlier legislation which afforded equivalent protection to that offered by ss 340 and 346 of the Act rendered conduct offensive if it was engaged in for a proscribed reason or reasons.
19 It has never been the case that an employer was prevented, by federal industrial legislation, from taking prejudicial action against an employee who happened to be a union member or a union official: see for example Cuevas v Freeman Motors Pty Ltd (1975) 25 FLR 67 at 78-9. An employer could not, however, act to the detriment of an employee "by reason of" or "because" of the employee's union membership or associated activities. Over the past century the legislature has expanded progressively the number of prejudicial acts which are denied to an employer and the number of proscribed reasons which might actuate the taking of such prejudicial action. The central issue in this case is concerned with the provisions of the Act which determine whether a causal nexus exists between an employee's union membership and activities and any prejudicial action about which complaint is made.
20 The legislative history is more fully outlined in the judgment of Marshall J in Elliott v Kodak Australasia Pty Ltd (2001) 108 IR 23 at 27-30. The following summary is sufficient for present purposes. Section 9(1) of the original C&A Act made it a criminal offence for an employer to dismiss an employee "by reason merely of the fact that the employee [was] an officer or member of an organisation or [was] entitled to the benefit of an industrial agreement or award." Section 9(3) provided that, if an employer was prosecuted for a contravention of the section, "it shall lie upon the employer to show that any employee, proved to have been dismissed while an officer or member of an organisation … was dismissed for some reason other than those mentioned in this section." Section 9 was varied on a number of occasions to expand the range of prejudicial action which an employer was forbidden to take against an employee "by reason of the circumstance that" the employee was a union member or engaged in lawful industrial action. In 1947 s 9 was renumbered as s 5 and the range of protected actions was further expanded. The phrase "by reason of the circumstances that" was retained. In 1988 s 5 of the C&A Act was substantially reproduced as s 334 of the IR Act. For the first time "because" was substituted for "by reason of" in the substantive provision. The related reverse onus provision, however, continued to focus on the defendant's reason or reasons for acting. The section prohibited the taking of action against an employee "because" the employee was a union member or had engaged in certain activities. It continued to be an offence provision. Section 334(6) relieved the prosecutor of the need to prove the defendant's reason for the action charged and made it a defence to the charge that "the defendant proves that the action was not motivated (whether in whole or part) by the reason…specified in the charge."
21 After 1996 the WR Act continued to protect employees but did so through a civil penalty regime. Section 334 of the IR Act was replaced by ss 298K and 298L. Section 298K provided that an employer could not "for a prohibited reason, or for reasons that include a prohibited reason, do or threaten to" take prejudicial action against an employee. Section 298L provided that prejudicial conduct of the kind covered by s 298K was to be taken to be "for a prohibited reason if it [was] carried out because the employee … concerned" was a union member or official, entitled to the benefit of an industrial instrument or had engaged in certain industrial activities (emphasis added). Section 298V contained a reverse onus provision in similar terms to the one appearing in s 361(1) of the present Act.
22 In 2006 ss 298K and 298L were renumbered as ss 792 and 793. Section 298V was renumbered as s 809 and amended such that it was in almost identical terms to the present s 361.
23 Mr Barclay contended that the inclusion of the word "because" in both ss 340 and 346 in preference to the phrase "by reason of" which had appeared in some of the earlier legislation had effected a significant change. He submitted that, in determining whether or not prejudicial action had been taken "because" of the status or activities of the victim, the actor's subjective reason for taking the prejudicial action was wholly irrelevant and was not to be taken into account. The test was said to be purely objective. In the alternative, he contended that BRIT had not established, on the balance of probabilities, that it had not acted for one or more of the reasons alleged by him.
24 The primary contention must be rejected. It is inconsistent with the legislative history, relevant principles of statutory construction and authority.
25 Under s 5 of the C&A Act the court was required to determine whether the "real reason" for the prejudicial action against an employee was or included a proscribed reason: see General Motors Holden Pty Ltd v Bowling (1976) 12 ALR 605. To this end the court had regard to the evidence called on behalf of the employer as to what motivated or actuated its decision to take prejudicial action against the employee. If the employer was a corporation that evidence would normally be given by the person or persons who made or authorised the decision. It was necessary for the court to assess the credibility of their evidence having regard to all of the surrounding circumstances. If they were believed the onus was satisfied. If they were not and the other statutory requirements were met, the employee succeeded. If the actual decision makers were not called a finding that an employer had not satisfied the onus would more easily be made: see General Motors Holden at 612.
26 It might also be observed that, in giving reasons for their decisions, courts dealing with cases brought under s 5 of the C&A Act, often used the phrase "by reason of" and the word "because" interchangeably: see, for example, Bowling at 217-8; Cuevas at 78-9.
27 The question raised by Mr Barclay's primary construction point is whether the substitution, in successive Acts, of the causal expression "because", has had the effect of rendering irrelevant the reasons given by an employer for taking action against an employee.
28 In all of the cases to which I was referred which had been decided under the equivalent provisions of the IR Act and the WR Act and others which I have examined, the court proceeded on the basis that evidence of the employer's subjective reasons for taking the impugned action was relevant in deciding whether the employer had taken the action because of the existence of one or more of the circumstances in which such action was impermissible. See, for example, Bowling v General Motors Holden Pty Ltd (1975) 8 ALR 197 at 205-6 (s 5); Maritime Union of Australia v Geraldton Port Authority (1999) 93 FCR 34 at 69, 83-5 (ss 298K-298L); Australian Municipal, Administrative, Clerical and Services Union v Ansett Australia Ltd (2000) 175 ALR 173 at 187-192 (ss 298K-298L); Elliott v Kodak Australasia Pty Ltd (2001) 108 IR 23 at 30-1(ss 298K-298L); Finance Sector Union of Australia v Australia and New Zealand Banking Group Ltd (2002) 120 FCR 107 at 143-4 (ss 298K-298L); The United Firefighters Union of Australia v Metropolitan Fire and Emergency Services Board (2003) 123 IR 86 at 113-5 (ss 298K-298L); Seymour v Saint-Gobain Abrasives Pty Ltd (2006) 161 IR 9 ("Seymour") at 13-14 (ss 792-793); Dowling v Fairfax Media Publications Pty Ltd (2009) 182 IR 28 at [40] (ss 792-793). It is to be noted that the approach remained the same after the criminal offences were replaced by a civil penalty regime. Counsel for Mr Barclay did not cite any authority which supported the contrary proposition which they urged on the court.
29 Sections 340(1)(a) and 346(a) must be construed having regard to the legislative context in which they appear. The relevant provisions of Part 3-1 of the Act are to be found in Divisions 1, 3, 4, 5 and 7. In addition to ss 340(1)(a) and 346(a), these Divisions contain other proscriptions which are intended to further the objects of the Part. They include those which are to be found in ss 340(2), 351(1), 352 and 354(1). In each of these cases it is provided that a person must not take particular action "because" certain prescribed circumstances exist. Nowhere in these divisions is the "by reason of" formula employed. This is significant because ss 360 and 361(1) contemplate that, in order to establish contraventions of the protective provisions of the Part, it is necessary to establish that relevant action has been taken "for a particular reason". Unless "because" bears the same meaning as "for a particular reason", the assistance provided to applicants by ss 360 and 361 would not be available.
30 Another group of protective provisions in these Parts, such as ss 343, 348 and 355, prohibit various forms of conduct if taken "with intent to coerce". If such an intention is alleged, s 361 establishes a rebuttable presumption that the respondent acted with the requisite intention to coerce.
31 The Explanatory Memorandum for the Fair Work Bill records that the protective provisions of Part 3-1 "are intended to rationalise, but not diminish, existing protections.": see para 1336. In dealing with the clauses that became ss 360 and 361 of the Act the Explanatory Memorandum said that:
1457. Clause 360 deals with the extent to which a person's action must be motivated by a particular reason to establish a contravention of Part 3-1
...
1459. Clause 361 reverses the onus of proof applicable to civil proceedings for a contravention of Part 3-1. It is intended to broadly cover section 809 of the WR Act.
1460. Generally a civil action places the onus on the complainant to establish on the balance of probabilities that the action complained of was carried out for a particular reason or with a particular intent.
1461. However, subclause 361(1) provides that once a complainant has alleged that a person's actual or threatened action is motivated by a reason or intent that would contravene the relevant provision(s) of Part 3-1, that person has to establish, on the balance of probabilities, that the conduct was not carried out unlawfully. This has been a long-standing feature of the freedom of association and unlawful termination protections and recognises that, in the absence of such a clause, it would often be extremely difficult, if not impossible, for a complainant to establish that a person acted for an unlawful reason." (Emphasis added).
32 These passages make it tolerably clear that the legislature intended that the reverse onus would operate when one element which is needed to establish a contravention is that the actor had been motivated by a particular reason ("because") or by a particular intention ("the intent to coerce").
33 In Purvis v The State of New South Wales (2003) 217 CLR 92, the High Court dealt with the construction of s 5(1) of the Disability Discrimination Act 1992 (Cth) which provided that "a person discriminates against another person on the ground of a disability of the aggrieved person if, because of the disability" the actor did certain things. In their joint judgment Gummow, Hayne and Heydon JJ made certain observations about the issue of whether the appellant had been treated less favourably "because of" his disability. Their Honours said (at 163) that:
…The arguments about this aspect of s 5(1) sought to draw distinctions between the motive of the discriminator, the purpose of the conduct and the effect of the conduct, and between objective and subjective criteria of operation. Attention was directed to the drafter's use of the expression "by reason of" in the equivalent provisions of the Sex Discrimination Act…rather than the expression "because of" used in s 5(1) and other provisions of the Act…Reference was made to s 10 of the Act and its provision that if an act is done for two or more reasons and one of those is the disability of a person "whether or not it is the dominant or a substantial reason for doing the act" then for the purposes of the Act "the act is taken to be done for that reason".
…For present purposes, it is enough to say that we doubt that distinctions between motive, purpose or effect will greatly assist the resolution of any problem about whether treatment occurred or was proposed "because of" disability. Rather, the central question will always be - why was the aggrieved person treated as he or she was? If the aggrieved person was treated less favourably was it "because of", "by reason of", that person's disability? Motive, purpose, effect may all bear on that question. But it would be a mistake to treat those words as substitutes for the statutory expression "because of". (Emphasis in original).
34 The task of the court, in a proceeding such as the present is, then, to determine why the employer took the adverse action against the employee. Was it for a prohibited reason or reasons which included that reason? In answering this question evidence from the decision-maker which explains why the adverse action was taken will be relevant. If it supports the view that the reason was innocent and that evidence is accepted the employer will have a good defence. If the evidence is not accepted the employer will have failed to displace the presumption that the adverse action was taken for a proscribed reason.
35 If an employer, who is alleged to have contravened one of the provisions of Part 3-1 in which the word "because" is to be found, adduces evidence which persuades the court that it acted solely for a reason other than one or more of the impermissible reasons identified in a particular protective provision, it will have made good its defence. Because of the reverse onus provision the employer will normally need to call evidence from the decision-maker to explain what actuated him or her to act to the employee's detriment. As Buchanan J said in Seymour (at 14), the employer will usually have to provide "sworn evidence denying any [proscribed] reason…and, in most cases, an explanation of the real reason for [the adverse action] consistent with the absence of [proscribed reasons] is, in a practical sense, also necessary". That evidence can be tested in the light of established facts. The credibility of the decision-maker will be assessed by the court.
36 Mr Barclay's alternative argument accepted that this was the correct approach and submitted that BRIT had failed, on the balance of probabilities, to establish that it had acted for the reasons given by Dr Harvey and not for any impermissible reason.
37 Mr Barclay alleges that BRIT took adverse action against him because he was an officer of the AEU and because he had engaged in the various activities identified above at [10]. In those circumstances I must determine whether BRIT has satisfied me, on the balance of probabilities, that Mr Barclay's status and activities (or any one of them) was not or were not a reason for Dr Harvey's decision.