Barclay v The Board of Bendigo Regional Institute of Technical and Further Education

ices Union [2001] FCA 349 (2001) 112 FCR 232 not followed Harrison v P&T Tube Mills Pty Ltd [2009] FCA 220 (2009) 181 IR 162 not followed Harrison v P&T Tube Mills Pty Ltd [2009] FCAFC 102 (2009) 188 IR 270 considered I W v City of Perth [1997] HCA 30 (1997) 191 CLR 1 applied Jones v Queensland Tertiary Admissions Centre Ltd [2009] FCA 1382 approved K & J Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 157 CLR 309 cited in dissent Kimpton v Minister for Education of Victoria (1996) 65 IR 317 approved Lewis Construction Co Pty Ltd v Martin (1986) 17 IR 122 followed National Union of Workers v Qenos Pty Ltd [2001] FCA 178 (2001) 108 FCR 90 considered Pearce v W D Peacock & Co Ltd [1917] HCA 28 (1917) 23 CLR 199 considered Police Federation of Australia v Nixon [2008] FCA 467 (2008) 168 FCR 340 not followed Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 cited in dissent Purvis v State of New South Wales (Department of Education and Training) [2003] HCA 62 (2003) 217 CLR 92 considered Toben v Jones [2003] FCAFC 137 (2003) 129 FCR 515 considered United Firefighters' Union of Australia v Metropolitan Fire and Emergency Services Board [2003] FCA 480 (2003) 198 ALR 466 approved

Counsel for the appellants: Mr C Gunst QC and Mr M Irving

Counsel for the respondent: Mr C O'Grady and Mr A McNab

IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY FAIR WORK DIVISION VID 267 of 2010

AND: THE BOARD OF BENDIGO REGIONAL INSTITUTE OF TECHNICAL AND FURTHER EDUCATION

JUDGES: GRAY, LANDER & BROMBERG JJ DATE OF ORDER: 9 FEBRUARY 2011 WHERE MADE: MELBOURNE

1. The appeal be allowed.
2. The order made on 25 March 2010, dismissing the application in proceeding number VID 77 of 2010, be set aside.
3. The matter be remitted to the primary judge for the making of further orders in accordance with the reasons for judgment of the Full Court.
4. There be no order as to the costs of the appeal. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using Federal Law Search on the Court's website.

IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY FAIR WORK DIVISION VID 267 of 2010

AND: THE BOARD OF BENDIGO REGIONAL INSTITUTE OF TECHNICAL AND FURTHER EDUCATION

JUDGES: GRAY, LANDER & BROMBERG JJ DATE: 9 february 2011 PLACE: MELBOURNE

The nature and history of the proceeding 1 This appeal raises questions about the extent of the protection afforded to an officer of a union by s 346 of the Fair Work Act 2009 (Cth) ("the Fair Work Act"). The employer in this case suspended the officer from his employment, required him to refrain from entering its premises, denied him the ability to use its internet communication system and began disciplinary proceedings against him. It did so after the union officer sent an email to union members employed by that employer. The employer took the view that the officer should have communicated to management matters that were the subject of the email. It also objected to the manner in which the email was expressed, which cast the employer's institution and its employees in a bad light. The fundamental question is whether the requisite causal connection existed between the employer's decision to take those actions and the fact that the target of them was an officer of the union who was engaged in industrial activity, so as to bring the officer within the protection of s 346. 2 The appeal is from a judgment of a single judge of the Court, published as Barclay v The Board of Bendigo Regional Institute of Technical and Further Education [2010] FCA 284. The proceeding at first instance was commenced on 10 February 2010. The applicants, who are the appellants in this appeal, were the officer concerned and the Australian Education Union, an organisation registered pursuant to legislative provisions now found in the Fair Work (Registered Organisations) Act 2009 (Cth). The respondent to the primary proceeding, and to this appeal, is the statutory authority that is responsible for the operation of the Bendigo Regional Institute of Technical and Further Education. For convenience, the first appellant is referred to as Mr Barclay, the second appellant as the AEU and the respondent as BRIT. 3 At first instance, an application for interlocutory relief was resolved by the parties agreeing to remove Mr Barclay's suspension from employment and his ban on entering the BRIT premises, and to restore his internet entitlements, pending the hearing and determination of the proceeding. The trial of the proceeding was expedited and judgment was delivered on 25 March 2010. The learned primary judge dismissed the application. This Court was informed by counsel that, by agreement between the parties, pending the hearing and determination of the appeal, Mr Barclay has been conducting the duties of his employment at BRIT and has had access to BRIT's internet communications system. 4 Perhaps because of the expedition with which the proceeding at first instance was brought on for trial, there were no pleadings or statements of contentions defining the issues. The best indication of the claims made is found in the nature of the declarations sought by Mr Barclay and the AEU in their application at first instance. They sought four declarations that BRIT had contravened specified provisions of s 346 of the Fair Work Act, by taking adverse action "for the reason, or for reasons that included the reason": first that Mr Barclay was an officer of the AEU; second that Mr Barclay encouraged or participated in a lawful activity organised or promoted by the AEU or represented or advanced the views, claims or interest of the AEU; third that Mr Barclay exercised one or more workplace rights, being a role or responsibility under cl 10 of the Victorian TAFE Teaching Staff Multi-Business Agreement 2009 or a role or responsibility under cl 9 of that agreement; and fourth that Mr Barclay exercised a workplace right by participating in a process or proceeding under a workplace instrument, being a dispute settlement procedure under cl 10 of that agreement or a consultation under cl 9 of that agreement. There was a fifth declaration sought that is of no concern for the purposes of the appeal. 5 In the orders sought in the application, "adverse action" was defined to mean one or more of: suspending Mr Barclay from employment; directing Mr Barclay not to attend any of the BRIT campuses and suspending his electronic access account; requiring Mr Barclay to show cause why he should not be the subject of disciplinary action for serious misconduct; and threatening to take disciplinary action against Mr Barclay. The orders sought included the imposition of a penalty under s 546(1) of the Fair Work Act in respect of each of the alleged contraventions; an order pursuant to s 546(3) of the Fair Work Act that BRIT pay the penalty to the AEU or to Mr Barclay; an order pursuant to s 545(2)(b) of the Fair Work Act requiring BRIT to pay compensation for loss that Mr Barclay and the AEU had suffered as a result of the contraventions; an order pursuant to s 547 of the Fair Work Act for the payment of interest; and a permanent injunction to give effect to the Court's orders and findings. With the exception of the fifth declaration, the same orders are sought on appeal.

The legislation 6 The provisions of the Fair Work Act relevant to this appeal are found in Pt 3-1. Section 336 provides: The objects of this Part are as follows: (a) to protect workplace rights; (b) to protect freedom of association by ensuring that persons are: (i) free to become, or not become, members of industrial associations; and (ii) free to be represented, or not represented, by industrial associations; and (iii) free to participate, or not participate, in lawful industrial activities; (c) to provide protection from workplace discrimination; (d) to provide effective relief for persons who have been discriminated against, victimised or otherwise adversely affected as a result of contraventions of this Part. 7 Division 3 of Pt 3-1 relates to workplace rights and their protection. It contains the following relevant provisions: 340 (1) A person must not take adverse action against another person: (a) because the other person: (i) has a workplace right; or (ii) has, or has not, exercised a workplace right... 341 (1) A person has a workplace right if the person: (a) is entitled to the benefit of, or has a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body; or (b) is able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument... (2) Each of the following is a process or proceedings under a workplace law or workplace instrument: ... (j) dispute settlement for which provision is made by, or under, a workplace law or workplace instrument 8 The dictionary in s 12 of the Fair Work Act contains definitions of "workplace instrument" and "workplace law". The Fair Work Act itself is a workplace law, and an instrument made under, or recognised by, a workplace law, and concerning the relationships between employers and employees, is a workplace instrument. 9 Section 342(1) contains a table setting out circumstances in which a person takes adverse action against another person. Item 1 of that table provides that an employer takes adverse action against an employee if the employer: (a) dismisses the employee; or (b) injures the employee in his or her employment; or (c) alters the position of the employee to the employee's prejudice; or (d) discriminates between the employee and other employees of the employer. Section 342(2)(a) provides that adverse action includes threatening to take action covered by the table in s 342(1). 10 Division 4 of Pt 3-1 contains provisions dealing with the protection of freedom of association and involvement in industrial activities. So far as relevant to this case, s 346 provides: A person must not take adverse action against another person because the other person: (a) is or is not, or was or was not, an officer or member of an industrial association; or (b) engages, or has at any time engaged or proposed to engage, in industrial activity within the meaning of paragraph 347(a) or (b) 11 The definition of "adverse action" in the dictionary in s 12 of the Fair Work Act refers to s 342, thereby making it clear that the definition in s 342 is applicable to the term "adverse action" when it is used in s 346. The meaning of "industrial activity" is explained in s 347. That section provides as follows: A person engages in industrial activity if the person: (a) becomes or does not become, or remains or ceases to be, an officer or member of an industrial association; or (b) does, or does not: (i) become involved in establishing an industrial association; or (ii) organise or promote a lawful activity for, or on behalf of, an industrial association; or (iii) encourage, or participate in, a lawful activity organised or promoted by an industrial association; or (iv) comply with a lawful request made by, or requirement of, an industrial association; or (v) represent or advance the views, claims or interests of an industrial association; or (vi) pay a fee (however described) to an industrial association, or to someone in lieu of an industrial association; or (vii) seek to be represented by an industrial association; or (c) organises or promotes an unlawful activity for, or on behalf of, an industrial association; or (d) encourages, or participates in, an unlawful activity organised or promoted by an industrial association; or (e) complies with an unlawful request made by, or requirement of, an industrial association; or (f) takes part in industrial action; or (g) makes a payment: (i) that, because of Division 9 of Part 3-3 (which deals with payments relating to periods of industrial action), an employer must not pay; or (ii) to which an employee is not entitled because of that Division. Two more definitions in the dictionary in s 12 of the Fair Work Act are relevant to s 347(a): officer, of an industrial association, means: (a) an official of the association; or (b) a delegate or other representative of the association. official, of an industrial association, means a person who holds an office in, or is an employee of, the association. There is also a lengthy definition of "office", to which it is unnecessary to go for present purposes. 12 Sections 360 and 361 of the Fair Work Act are found in Div 7 of Pt 3-1. So far as relevant to this proceeding, they provide as follows: 360 For the purposes of this Part, a person takes action for a particular reason if the reasons for the action include that reason. 361(1) If: (a) in an application in relation to a contravention of this Part, it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and (b) taking that action for that reason or with that intent would constitute a contravention of this Part; it is presumed, in proceedings arising from the application, that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise.

The approach to construing the legislative provisions 13 The objects of Pt 3-1 reveal that Parliament sought to protect the rights conferred by the Part and to provide for persons on whom those rights are conferred effective relief from being discriminated against, victimised or otherwise adversely affected by reason of the holding or exercising of those rights. The rights the Part deals with are: The workplace rights conferred by Div 3; The rights of association and participation in the industrial activities conferred by Div 4; and Anti-discrimination rights and other protections conferred by Divs 5 and 6. 14 The objects of Pt 3-1 refer specifically to the aim of protecting freedom of association. When regard is had to the way in which the content of freedom of association is identified by those objects, it is clear that Parliament intended that a broad approach be taken to the concept of freedom of association. The freedom is not simply a freedom to join an association without adverse consequences, but is a freedom to be represented by the association and to participate in its activities. As the principal object of the Fair Work Act itself emphasises, the recognition of the right to freedom of association and the right to be represented is designed to enable fairness and representation at work: see s 3(e) and the Explanatory Memorandum to the Bill which introduced the Fair Work Act at para 1333. 15 The Fair Work Act's principal object also emphasises Parliament's intent to take into account Australia's international labour obligations: s 3(a). In that regard, it is necessary to acknowledge that the right to freedom of association is recognised in international law. Australia has ratified each of the following international instruments which recognise and seek to protect the right of freedom of association: the International Covenant on Economic, Social and Cultural Rights, Opened for signature 19 December 1966, 993 UNTS 3. (entered into force 10 March 1976) ("the ICESCR") (see especially art 8); the International Covenant on Civil and Political Rights, Opened for signature 19 December 1966, 999 UNTS 171. (entered into force 13 November 1980) ("the ICCPR") (see especially art 22); and the International Labour Organisation Convention (No 87) concerning Freedom of Association and Protection of the Rights to Organise, Opened for signature 9 July 1948, 68 UNTS 17. (entered into force 28 February 1973). 16 Article 20 of the Universal Declaration of Human Rights G/A Res. 217A (III) UN. Doc. A/810 (10 December 1948) ("the UDHR") also provides for the right to freedom of association. The UDHR, the ICESCR and the ICCPR together constitute the International Bill of Human Rights adopted by the General Assembly of the United Nations. 17 Especially where important human rights are concerned, protective and remedial legislation should not be construed narrowly "lest courts become the undoers and destroyers of the benefits and remedies provided by such legislation…It is legitimate in giving effect to such legislation, to keep in mind its broad purposes and, to the full extent that the text permits, to ensure that the Act achieves its objectives and is not held to have misfired": I W v City of Perth [1997] HCA 30 (1997) 191 CLR 1 at 58 per Kirby J. 18 The objects and purposes of Part 3-1 are important interpretive aids in resolving issues of construction, including those which arise in this appeal by reference to s 346 of the Fair Work Act. That provision was relied upon by the appellants to found the claim of victimisation of Mr Barclay by reason of the exercise by him of his activities as an officer of the AEU. Protection from that kind of victimisation has long been a central feature of the Fair Work Act and its predecessors. Its source may be traced back to s 9(1) of the Conciliation and Arbitration Act 1904 (Cth) and to a time which predates the international recognition of the right to freedom of association by international law. 19 As North J explained in Australasian Meat Industry Employees' Union v Belandra Pty Ltd [2003] FCA 910 (2003) 126 IR 165 at [116]-[133], and as the High Court recognised in General Motors Holden Pty Ltd v Bowling (1976) 12 ALR 605, the purpose of the protection of union officials from victimisation by reason of their union status or activities was based in the central role given to unions by Australia's industrial relations system and was "designed, among other things, to preserve organizations, so that the method selected by Parliament for settling disputes shall not be thwarted": per Isaacs J in Pearce v W D Peacock & Co Ltd [1917] HCA 28 (1917) 23 CLR 199 at 205, quoted by Mason J in Bowling at 616; see also Barwick CJ in Bowling at 609. 20 This facilitative object was touched on by Smithers and Evatt JJ in Bowling v General Motors-Holden Pty Ltd (1975) 8 ALR 197 at 210, where their Honours said: It is basic…that active representatives of employees may well incur the displeasure of management with consequent risks and worries to those representatives. As the informant in this case said "you are brought into the firing line". Clearly the purposes of the Act will be frustrated unless employees are able to act as union representatives on the shop floor and elsewhere and negotiate with the representatives of employers without fear that on that account they will suffer in their employment. 21 Wilcox and Cooper JJ described the protective object of the predecessor of s 346 as 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 association": Davids Distribution Pty Ltd v National Union of Workers [1999] FCA 1108 (1999) 91 FCR 463 at [106]. 22 The objects expressed in s 336(b) of the Fair Work Act, together with the legislative history, make it clear that the provisions are intended to be both facilitative and protective. Employees are to be free to assume membership and office in industrial associations and to be represented by industrial associations, and to engage in lawful industrial activities, without the risk that their employers will disadvantage them as a consequence. Section 346(a) is founded on the assumption that representation by industrial associations will involve employees exercising functions as officers of those associations. Employees are not to be discouraged from accepting the conferral of such functions, or from performing the functions, by the circumstance that a consequence of their acceptance or performance will be that their employers take action to disadvantage them. 23 Part 3-1 of the Fair Work Act includes provisions which are largely based upon provisions formerly found in Pt 16 - "Freedom of Association" of the Workplace Relations Act 1996 (Cth) ("the Workplace Relations Act"). Under Pt 16, prohibited conduct by employers was dealt with separately from prohibited conduct of employees and separately again from prohibited conduct of industrial associations. By contrast, s 346 prohibits conduct of "a person". The Explanatory Memorandum explains that the consolidated protections in Pt 3-1 are intended to rationalise, but not diminish, existing protection. In that respect, the draftsperson has consolidated into one generic provision many of the kinds of conduct formerly prohibited by disparate provisions. In the Workplace Relations Act, different linguistic formulae were utilised when the conduct was dealt with under different person-specific provisions. In relation to the conduct of employers, the prohibition was cast in terms that an employer must not, for a prohibited reason, engage in certain conduct. The prohibited reasons specified were referrable to the attributes or activities of employees. In relation to conduct of an employee or industrial association, the formula used was that such a person must not engage in such conduct against another person "because" of that other person's attributes or activities (as specified). 24 In consolidating the provisions and adopting a generic approach for s 346, the draftsperson had to choose between the two competing prior approaches. The more modern style of using the conjunction "because" instead of "for the reason that" was adopted. The choice was stylistic, not substantive. The primary judge was correct to conclude that the word "because" in ss 340(1)(a) and 346 was intended to have the same meaning as "by reason of the circumstance that". The Macquarie Dictionary gives as the primary meaning for the word "because", when used as a conjunction, "for the reason that" and, when used as an adverb, "by reason". The expressions "because" and "by reason of", in the context of the relevant provisions of the Fair Work Act, are interchangeable. If that were not so, as the primary judge pointed out, the assistance provided to applicants by ss 360 and 361 would not be available. 25 To the extent that the AEU and Mr Barclay contended before the primary judge, and on the appeal, that the introduction of the word "because" had the effect of making irrelevant the state of mind of the person taking the adverse action, that contention must be rejected. 26 As Gummow, Hayne and Heydon JJ said in Purvis v State of New South Wales (Department of Education and Training) [2003] HCA 62 (2003) 217 CLR 92 at [236] of the use of "because" in a similar way to its use in s 346: 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". 27 The central question under s 346 is why was the aggrieved person treated as he or she was? If the aggrieved person was subjected to adverse action, was it "because" the aggrieved person did or did not have the attributes, or had or had not engaged or proposed to engage in the industrial activities, specified by s 346 in conjunction with s 347? 28 The determination of those questions involves characterisation of the reason or reasons of the person who took the adverse action. The state of mind or subjective intention of that person will be centrally relevant, but it is not decisive. What is required is a determination of what Mason J in Bowling (at 617) called the "real reason" for the conduct. The real reason for a person's conduct is not necessarily the reason that the person asserts, even where the person genuinely believes he or she was motivated by that reason. The search is for what actuated the conduct of the person, not for what the person thinks he or she was actuated by. In that regard, the real reason may be conscious or unconscious, and where unconscious or not appreciated or understood, adverse action will not be excused simply because its perpetrator held a benevolent intent. It is not open to the decision-maker to choose to ignore the objective connection between the decision he or she is making and the attribute or activity in question. 29 So much is evident from the use of the word "because". It is also consonant with the objective and protective purposes of s 346. Further, it is consistent with the approach to construction taken in relation to provisions in anti-discrimination legislation where, in a similar context, the word "because" is utilised: see in particular Purvis at [142]-[166] per McHugh and Kirby JJ and at [234]-[236] per Gummow, Hayne and Heydon JJ; and Toben v Jones [2003] FCAFC 137 (2003) 129 FCR 515 at [31] per Carr J, [61]-[63] per Kiefel J and [151] per Allsop J. 30 Section 360 continues the long-standing position that, where adverse action is taken against a protected person, culpability will be established if the reasons for that conduct include a reason for conduct that is within the ambit of s 346. The reason must be an operative or immediate reason and need not be the sole or dominant reason (see the Explanatory Memorandum at para 1458). But the drawing of distinctions between proximate or immediate reasons for conduct (Greater Dandenong City Council v Australian Municipal, Administrative, Clerical and Services Union [2001] FCA 349 (2001) 112 FCR 232 at [216]), or between the cause of conduct and the reason for conduct (Greater Dandenong at [164]), is not helpful. Those distinctions fail to give sufficient attention to whether or not the reason was operative, and they also draw distinctions between a reason and a factor in a reason. As Gray J (with whom Woodward and Jenkinson JJ agreed) said in Lewis Construction Co Pty Ltd v Martin (1986) 17 IR 122 at 125: The Act and the authorities do not distinguish between a "reason" and a "factor"; indeed, in Bowling, these terms are used interchangeably. 31 Further, that no distinction is to be drawn between the cause of conduct and the reason for conduct is supported by our earlier conclusion at [24] as to the meaning of "because" and the interchangeable use by the relevant provisions (ss 340, 346 and 360, 361) of cause and reason. 32 The onus cast by s 361 on the person taking the adverse action means that, to succeed, that person has to establish that he or she was not actuated by the attributes or industrial activity which s 346 seeks to protect. As Mason J said in Bowling at 617, that objective will not be achieved unless the evidence establishes that the real reason for the adverse action lies outside the ambit of the provision - in this case s 346. The real reason or reasons for the taking of the adverse action must be shown to be "dissociated from the circumstances" that the aggrieved person has or had the s 346 attribute or has or had engaged in or proposes to engage in the s 346 industrial activity. 33 It is important, however, to appreciate that not all of the circumstances specified by s 346 (in conjunction with s 347) are circumstances specified for the purpose of identifying whether the causal link of an operative reason exists. Objective facts, dependent on the determination of questions of mixed fact and law, have now been included in s 346 to a much greater extent than they were in the section's predecessors. Section 347 is replete with examples. For instance "lawful activity" in (b)(ii) and (iii) and "lawful request" in (b)(iv). Whether a person is or is not a member or officer of an industrial association is also a fact to be ascertained objectively by reference to a legal standard, usually the rules of the association. 34 It is for an applicant to prove the existence of objective facts of the kind we have identified: see Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2010] FCA 590 at [44] and the cases there cited. The specification in ss 346 and 347 of facts of this kind is designed to delineate the area of protection from adverse action afforded by s 346. For instance, an employee is not protected by s 346 (in conjunction with s 347(b)(ii)) where the activity promoted for or on behalf of an industrial association is not a lawful activity. However, it is not necessary that the subjective belief held by the person accused of the adverse action about such a fact should correlate with the legal conclusion as to the existence or non-existence of that fact. Thus a contravention of s 346 (in conjunction with s 347(b)(ii)) may occur where the activity promoted by the employee was lawful, but where the employer taking the adverse action held a subjective belief that it was not. In such a case, a failure by the employer to establish that the real reason for the taking of the adverse action was dissociated from the circumstance that the employee was promoting a lawful activity for or on behalf of an industrial association will result in a finding of contravention, irrespective of the employer's subjective belief that the activity was unlawful. The "connection" between the adverse action and the industrial activity will be sufficiently made out in those circumstances: see the Explanatory Memorandum at para 1400. 35 The central question in Purvis was whether a disabled child whose disability caused him to behave violently at school had been discriminated against, in contravention of s 5(1) of the Disability Discrimination Act 1992 (Cth), by being excluded from the school. The High Court held that the relevant comparison, for the purposes of determining whether such a contravention had occurred, was between the child concerned and another child without the disability, but who had behaved in a similarly violent way. See Gleeson CJ at [12], Gummow, Hayne and Heydon JJ at [221]-[225] and Callinan J at [273]. With the exception of para (d) of item 1 of the table in s 342, which extends the concept of adverse action by an employer against an employee to discrimination between that employee and other employees of the employer, the provisions of Divs 3 and 4 of Pt 3-1 of the Fair Work Act do not require that any comparison be undertaken between the treatment of the employee in question and any other employee or employees, actual or notional, who acted in the same way as the employee in question. The provisions focus on the protection of the person who has a particular attribute, or engages in particular activity, without regard to how others might be treated if they did not have the benefit of the protection afforded by the provisions. It is not to the point to say that any other employee who acted in the same way would have been subject to the same discipline. 36 In applying the provisions of ss 341 and 346 of the Fair Work Act, except when the adverse action alleged is confined to discrimination when compared with other employees of the employer, a comparative test of the kind dealt with by the High Court in Purvis is not appropriate. 37 Lastly, there was some contest before the primary judge as to the scope of "officer" in s 346(a). Different views have been expressed as to the scope of the words "member" and "officer" in the predecessor provision to s 346(a) of the Fair Work Act. The prohibited reason of a person being a "member" of an industrial association has been construed as confined to the status of membership: Australian Workers Union v BHP Iron-Ore Pty Ltd [2001] FCA 3 (2000) 106 FCR 482 at [66]; Harrison v P&T Tube Mills Pty Ltd [2009] FCA 220 (2009) 181 IR 162 at [298]. On the other hand, "member" has been construed to encompass activities of the member carried out as an incident of that person's membership of the union: Belandra at [216]. Perhaps a third view, largely consistent with the last, is that at least the normal incidents of union membership, including what might be described as ordinary union activity, are to be properly taken into account in determining whether the contravening conduct has taken place for a prohibited reason: National Union of Workers v Qenos Pty Ltd [2001] FCA 178 (2001) 108 FCR 90 at [124]. 38 In relation to the word "officer", the view expressed in Harrison by Dowsett J is that the scope of the predecessor provision to s 346(a) was essentially confined to the status of the person as an officer. An appeal against his Honour's judgment was upheld, but the Full Court found it unnecessary to consider the correctness of that view: Harrison v P&T Tube Mills Pty Ltd [2009] FCAFC 102 (2009) 188 IR 270 at [34]. A contrary view was taken by Gray J in Australasian Meat Industry Employees' Union v G & K O'Connor Pty Ltd [2000] FCA 627 (2000) 100 IR 383 at [37]: It is clear that the prohibited reason that a person is a delegate of an industrial association, specified in s 298L(1)(a), is not confined to the mere status of the person concerned as a delegate. A dismissal of a delegate may be for that prohibited reason if the employer was motivated by dislike of the manner in which the delegate has performed duties as delegate, or of activities carried out by that delegate which have added significance because they are carried out by a delegate. The issue is discussed at length by Merkel J in Australian Municipal, Administrative, Clerical & Services Union v Ansett Australia Ltd [2000] FCA 441 at pars 63-78, where his Honour followed the decision of the High Court of Australia in General Motors Holden Pty Ltd v Bowling (1976) 51 ALJR 235. Conduct of an employer may also be for the prohibited reason that the employee concerned was a delegate if, for instance, a reason for the dismissal of a delegate was that the employer did not want that particular person to be a delegate. The employer might be prepared to live with delegates generally, or with another delegate, but might be concerned that a particular person has been chosen to represent the interests of its employees. 39 The debate as to the width of the subsection dealing with the protection of the right to be a member or officer was largely a debate as to the extent to which the maxim expressio unius est exclusio alterius (an express reference to one matter indicates that the other matters are excluded) applied. North J in Belandra at [134]-[150] dealt with that issue. For the reasons his Honour gave, we agree with his conclusion that the maxim was inapplicable. By reason also of the history and international law considerations referred to by North J, we agree with his Honour's conclusion that the protection provided by the predecessor to s 346(a) by reference to the word "member" includes protection in relation to activities carried out as an incident of membership. The same conclusion applied to the concept of "officer" as utilised in the predecessor provision. 40 We do not consider the references to "officer" or "member" in s 346(a) to be narrower in their scope than was previously the case. The reasons for the inapplicability of the expressio unius est exclusio alterius maxim are even stronger in relation to s 346 than they were previously in relation to the predecessors to that provision. The degree of overlap between s 346(a) and s 346(b) and within s 346(b) is manifest and much greater than was the limited overlap apparent in the predecessor provisions. In those circumstances, more so than previously, the application of the maxim is likely to bring about a result that the legislature was unlikely to have intended: Ainsworth v Criminal Justice Commission [1992] HCA 10 (1992) 175 CLR 564 at 575. The Explanatory Memorandum at para 1400 stated in relation to Div 4 of the Fair Work Act (which includes ss 346 and 347) that the "protections in the Division revolve around the right to engage or not engage in certain industrial activities - namely, being a member or officer of an industrial association or engaging in activities of industrial associations." Additionally, the terms of s 347(a) make it clear that the holding of membership or office is regarded by the Act as not merely a matter of status, but as an engagement in industrial activity.

The facts 41 The facts of the case were largely uncontroversial at the trial. The controversy concerns the conclusions to be drawn from those facts. 42 The AEU has a sub-branch, consisting of its members employed by BRIT. Mr Barclay is employed as a senior teacher by BRIT and is president of the sub-branch. On 29 January 2010, Mr Barclay sent an email to all members of the AEU employed by BRIT, in the following terms: From: Greg Barclay [mailto:gbarclay@britafe.vic.edu.au] Sent: Friday, 29 January 2010 10:00 AM Subject: AEU - A note of caution Hi all, The flurry of activity across the Institute to prepare for the upcoming reaccreditation audit is getting to the pointy end with the material having been sent off for the auditors to look through prior to the visit in February. It has been reported by several members that they have witnessed or been asked to be part of producing false and fraudulent documents for the audit. It is stating the obvious but, DO NOT AGREE TO BE PART OF ANY ATTEMPT TO CREATE FALSE/FRADULENT [sic] DOCUMENTATION OR PARTICIPATE IN THESE TYPES OF ACTIVITIES. If you have felt pressured to participate in this kind of activity please (as have several members to date) contact the AEU and seek their support and advice. Greg Barclay President BRIT AEU Sub-Branch 43 At the time, BRIT was preparing for an audit by the Victorian Registration and Qualifications Authority. The auditors were due to attend at BRIT on 16-17 February 2010. The documents to which the email referred were intended to be provided to the auditors. An unfavourable outcome of the audit with respect to certain courses and qualifications has the potential to affect the entitlement of BRIT to offer those courses and to confer those qualifications, and consequently to receive funding for that purpose. 44 On 29 January 2010, copies of the email were seen by senior managers of BRIT. One of them, Jamie Eckett, forwarded a copy of the email to BRIT's Chief Executive Officer, Dr Louise Harvey, late on 1 February 2010. In addition, Mr Eckett forwarded copies of emailed comments of other managers, to the effect that the email had the potential to cause serious damage to the reputation of BRIT. Mr Eckett also told Dr Harvey that he had discussed the email with Mr Barclay earlier on 1 February 2010, and that Mr Barclay had declined to provide him with the names of the members referred to in the email as having witnessed or been asked to be part of producing false and fraudulent documents. The refusal was on the basis that those people were members of the union and did not wish the fact of their membership to become known to management of BRIT. 45 On the following day, 2 February 2010, Dr Harvey invited Mr Barclay to meet with her. Mr Barclay was accompanied by an AEU representative. At the meeting, Dr Harvey handed Mr Barclay a letter in the following terms: Dear Greg Re: Possible Serious Misconduct I refer to an email sent by you to many Bendigo TAFE staff on Friday, 29th January 2010 in which you alleged that serious inappropriate behaviour has occurred in that several staff members have been "asked to be part of producing false and fraudulent documents for the audit" for Bendigo TAFE's re-accreditation. Your allegation raises the possibility that improper conduct has occurred which will require a full and thorough independent investigation. I am in the process of arranging for this to occur. You will be required to be interviewed by the investigator appointed. I will supply more information to you about that in the near future. However, the purpose of this letter is to ask that you show cause why you should not be subject to disciplinary action for serious misconduct in your role as Team Leader - Teaching Excellence. It appears to me that such disciplinary action may be warranted because of: the manner in which you have raised the allegation, via a broadly distributed email; your actions in not reporting the instances of alleged improper conduct directly to your manager or me to enable us to take appropriate action; and your refusal or failure to provide particulars of the allegations when asked to do so by your manager. In my preliminary view, this conduct is inconsistent with the behaviour expected of a public sector employee, a BRIT employee and a Team Leader in the Teaching, Learning & Quality Unit of this organisation. Additionally, I am of the view that because your accusation is vague and general, it doesn't demonstrate proper respect for your fellow employees and places the individuals concerned in the re-accreditation process under the shadow of suspicion with no right of reply or defence. I believe you have breached Clause 3.6, 3.9 and 6.1 of the Code of Conduct for Victorian Public Sector Employees. Clause 3.6 refers to public sector employees reporting to an appropriate authority any unethical behaviour. You did not report to your supervisor your knowledge of possible unethical behaviour and as yet have not provided proof of your allegation to your manager when asked to do so. Clause 3.9 refers to public sector employees behaving in a manner that does not bring themselves or the public sector into disrepute. The manner in which you have disseminated your allegations (whether or not they are well-founded) clearly threatens the reputation and probity of Bendigo TAFE. Finally, Clause 6.1 refers to public sector employees being fair, objective and courteous in their dealings with other public sector employees. By making generalised allegations, that could apply to anyone in the Institute involved in the re-accreditation process, you have cast a slur on your colleagues against which they cannot defend themselves. In line with Clause 3 of the BRIT Staff Discipline procedure, it is my decision to suspend you from duty on full pay until Friday, 19th February 2010. This period of time will provide you with the opportunity to formally respond to the charge of serious misconduct as outlined above. You should provide your response to the charges by no later than 12 noon on 17 February 2010. Until 19 February you are not to attend any of the Bendigo TAFE campuses and your electronic access account will be suspended. Yours sincerely Dr Louise Harvey Chief Executive Officer 46 The suspension of Mr Barclay on full pay, the denial of his internet access through the BRIT computer system, and the ban on him attending the BRIT premises lasted until 12 February 2010. On that occasion, the parties agreed that Mr Barclay should return to work on a normal basis. He remains subject to the disciplinary proceedings to which the letter refers, which have been held up, pending the outcome of this appeal. 47 At the time, the AEU and BRIT were parties to and bound by the Victorian TAFE Teaching Staff Multi-Business Agreement 2009 ("the TAFE Agreement"). Clauses 9 and 10 of the TAFE Agreement provided, so far as relevant to this proceeding: 9. CONSULTATION IN INSTITUTE DECISION-MAKING 9.1 The parties recognize that there will be significant consultation during the period of the Agreement on matters involving implementation of this Agreement, operational and cultural change and matters affecting Employees generally or in a particular case. To this end, the parties are committed to a cooperative approach to such matters involving joint participation and consultation. 9.2 An Institute Consultative Committee (ICC) will be established within one (1) month of the commencement of this Agreement for the purpose of implementing and monitoring this Agreement. The ICC will also be the forum through which the Institute, its employees and the Union consult generally on matters affecting Employees. The Committee shall meet during ordinary hours. Time Allocations of an agreed amount additional to those provided elsewhere in this Agreement will be made from scheduled duties for employee representatives on this ICC. 9.3 The ICC will comprise two Institute representatives, and two elected employee representatives who may be from the Union. It is recognized that from time to time additional representation on behalf of the Institute or the employees may be involved. 9.4 The ICC will meet regularly, and as required, to discuss issues outlined in sub-clause 9.1 and on any other matter on which consultation may be required. The ICC will provide a report and /or recommendation, as appropriate, to the Director on the matter/s under discussion. The Institute will provide the time and resources necessary for the ICC to perform its role. 9.5 Where the Institute proposes changes that are likely to have a significant effect on Employees covered by this Agreement, the Institute will consult with those Employees, their elected representatives and the Union through the ICC prior to the proposed changes being implemented. 10. DISPUTE RESOLUTION PROCEDURE 10.1 A dispute or grievance arises where an Employee on the one hand or the Employer on the other are aggrieved by a decision or action, or a failure to make a decision or act in relation to matters that arise out of, or are reasonably incidental to, matters covered by this Agreement. 10.2 The Employee has the right to seek advice from and be represented by the industrial organisation entitled to represent his or her interests at all stages of this procedure. The remaining subclauses of cl 10 set out the procedure by which disputes or grievances are to be dealt with. It is unnecessary for present purposes to set out any of those procedures in detail. 48 The primary judge described it as common ground that, in his capacity as sub-branch President of the AEU, Mr Barclay had the right (and probably the duty) to discuss workplace issues of concern to members with those members and to advise them about how the issues should be resolved. His Honour also found that Mr Barclay was bound to respect confidences.

The contraventions alleged 49 Mr Barclay and the AEU alleged that BRIT had taken adverse action against Mr Barclay in four ways: by suspending him from duty; by suspending his access to the internet; by requiring him not to attend the premises of BRIT; and by requiring him to show cause why disciplinary action should not be taken against him. They alleged that this adverse action was taken for six reasons: Mr Barclay was an officer of the AEU (a contravention of s 346(a) of the Fair Work Act); he engaged in industrial activity by representing or advancing the views, claims or interests of the AEU (a contravention of s 346(b) in conjunction with s 347(b)(v)); he engaged in industrial activity by encouraging or participating in a lawful activity organised or promoted by the AEU (a contravention of s 346(b) in conjunction with s 347(b)(iii)); he exercised a workplace right, in the form of a role or responsibility conferred by cl 10, or cl 9, of the TAFE Agreement (a contravention of s 340(1)(a)(ii) in conjunction with s 341(1)(a)); and he exercised a workplace right, being the ability to participate in a process or proceeding under a workplace instrument, being the dispute settlement procedure under cl 10 of the TAFE Agreement (a contravention of s 340(1)(a)(ii), in conjunction with s 341(1)(b) and s 341(2)(j)).

The reasoning of the primary judge 50 The primary judge did not make an express finding that Mr Barclay sent his email of 29 January 2010 in his capacity as an officer of the AEU. At [1] of his Honour's reasons for judgment, when he was summarising the nature of the proceeding, his Honour said that "In his union capacity" Mr Barclay sent the email to members of the AEU employed by BRIT. In conjunction with his Honour's findings about the uncontroversial evidence as to the nature of Mr Barclay's role as sub-branch President (see [48] above), this suggests that his Honour regarded the email, and the sending of it to members of the AEU, as falling within that role. 51 His Honour also did not make any express finding as to whether Mr Barclay was engaged in industrial activity, either in sending the email, or in failing or refusing to reveal to the management of BRIT the allegations that had been made to him or the identities of the persons who had made them. There is no finding as to whether, in sending the email, Mr Barclay was organising or promoting a lawful activity for, or on behalf of, an industrial association; encouraging or participating in a lawful activity organised or promoted by an industrial association; or representing or advancing the views, claims or interests of an industrial association, within the meaning of s 347(b)(ii), (iii) and (v) respectively of the Fair Work Act. 52 In the course of summarising the case put on behalf of Mr Barclay and the AEU, at [43], the primary judge discussed the issue whether the words "witnessed or been asked to be part of producing false and fraudulent documents for the audit" in Mr Barclay's email of 29 January 2010 were an accurate reflection of the information he had received from members. His Honour referred to cross-examination of Mr Barclay, in which it emerged that some members had told him they had become aware that incorrect information had been included in documents being prepared for audit purposes, but none had told him that anyone had deliberately inserted details known to be incorrect, in an attempt to mislead the auditors. His Honour said that Mr Barclay's formulation did not appear to be an accurate characterisation of the information he had received, but described the issue of its accuracy as not one that fell to be determined in the proceeding. His Honour did observe that Mr Barclay had made "a most serious allegation that members had reported to him that mis-conduct [sic], which could very well amount to a criminal offence, had occurred." 53 At [44]-[45], still under the heading that indicated that he was summarising the case put on behalf of Mr Barclay and the AEU, his Honour made a finding that Dr Harvey was entitled (if not bound) to investigate the allegations made in the email, and was not precluded from doing so by claims of confidentiality in a footer to the email. 54 His Honour then embarked on an account of the case put by BRIT. At [47]-[48], his Honour engaged in a discussion as to whether requiring Mr Barclay to show cause why disciplinary action should not be taken against him constituted adverse action. His Honour made no concluded finding on that question. At [49]-[54], his Honour summarised the evidence of Dr Harvey. He quoted a passage from Dr Harvey's affidavit in which she set out her concerns. These were that allegations of fraudulent conduct were made without any complaint or report of conduct of that kind being raised with Dr Harvey or any other member of senior management; the language of the email was bound to cause distress to members of staff, bring the reputation of BRIT into question and undermine staff confidence in the audit process; and Mr Barclay was himself employed in the unit responsible for overseeing the preparation of the audit process. His Honour said that Dr Harvey had said that she called on Mr Barclay to show cause to provide him with an opportunity to respond to the allegations and not with the intention to discipline or punish him. His Honour said that Dr Harvey had determined to institute an investigation into Mr Barclay's actions because he had failed to bring serious allegations to the attention of senior managers and had "proceeded to cast aspersions and innuendo upon his colleagues by way of a widely circulated e-mail." She thought that this conduct provided prima facie evidence of a breach of the code of conduct and of his obligations as an employee. She said she had decided to suspend Mr Barclay because she was of the view that the allegations against him were serious and she was concerned that if he were not suspended he might cause further damage to the reputation of BRIT and its staff. The primary judge referred to Dr Harvey's express denials that she had taken any adverse action because of Mr Barclay's membership of the AEU, because of any role that he held within the AEU, or because he had engaged in industrial activity. She also said that it had not occurred to her that Mr Barclay's conduct gave rise to any issues under cl 10 of the TAFE Agreement which, in any event, did not confer on Mr Barclay the right he asserted. 55 His Honour then proceeded immediately to comment on Dr Harvey's performance as a witness and to conclude that he accepted her evidence. After making some critical comments at [54], his Honour said: When, however, she was called on to explain her reasons for taking adverse action against Mr Barclay she provided convincing and credible explanations of why it was that she took the steps that she did. Dr Harvey said that she had been extremely concerned by the statement that false and fraudulent documentation had been prepared for the purposes of the audit. She wished to establish whether or not this had occurred and immediately instituted an inquiry to establish whether there was any foundation for the allegation. She adhered to her explanation (see above at [49]-[50]) for calling on Mr Barclay to show cause why he should not be disciplined for circulating the e-mail. She said that she had determined to exclude him from BRIT campuses and suspend his e-mail access because she did not want Mr Barclay on the premises while the auditors were there and because she did not want any other "loose allegations" made inappropriately during the audit to the detriment of BRIT. She maintained her denials of having acted against Mr Barclay for any reason associated with his union membership, office or activities. She had not turned her mind to the possible relevance of Clause 10 of the Agreement. I accept her evidence. I am satisfied that she did not act for any proscribed reason. Rather, she acted for the reasons which she gave. At [55], his Honour said that the decision to require Mr Barclay to show cause was made bona fide and the "outcome of the disciplinary proceeding will be for the enquiry officer to determine". 56 At [56]-[58], his Honour dealt with the issue whether, in any event, Mr Barclay had suffered any loss or damage that would have entitled him to compensation. His Honour held that Mr Barclay had not.

Adverse action 57 BRIT conceded at first instance that it had taken adverse action against Mr Barclay in three respects, namely by suspending him from duty, suspending his access to the internet and requiring him not to attend the premises of BRIT. The fourth form of adverse action alleged was requiring Mr Barclay to show cause why disciplinary action should not be taken against him. This was not conceded and the primary judge did not determine whether it was adverse action. His Honour did refer to a conflict of authority on the question whether being liable to investigation or disciplinary proceedings can constitute a sufficient alteration of the position of an employee to that employee's prejudice to amount to adverse action. The relevant authorities are: Kimpton v Minister for Education of Victoria (1996) 65 IR 317; United Firefighters' Union of Australia v Metropolitan Fire and Emergency Services Board [2003] FCA 480 (2003) 198 ALR 466 at [89]; Police Federation of Australia v Nixon [2008] FCA 467 (2008) 168 FCR 340 at [46]-[48]; and Jones v Queensland Tertiary Admissions Centre Ltd [2009] FCA 1382 at [23]-[27]. It would also be necessary to consider whether, even if requiring an employee to respond to disciplinary proceedings does not amount to adverse action, it might constitute threatening to take adverse action which, by virtue of s 342(2)(a) of the Fair Work Act, is itself adverse action. 58 In the course of the hearing of the appeal, counsel for Mr Barclay and AEU conceded that they had not expressed in their grounds of appeal, or in their written outline of submissions, a ground or argument to the effect that the primary judge erred in failing to reach a conclusion about the fourth form of adverse action alleged. They attempted to put oral argument to this effect. The Court invited them to consider, during the luncheon adjournment, how such a ground of appeal might be formulated. No application to amend the notice of appeal was made until the conclusion of the submissions in reply on behalf of the Mr Barclay and AEU, when their counsel handed up a proposed amended notice of appeal. Counsel for BRIT opposed the application for leave to amend, on the ground of its lateness. The Court refused to grant leave. We therefore refrain from determining whether, by calling upon Mr Barclay to show cause why he should not be penalised, BRIT took adverse action against him. For these reasons, we proceed on the basis that three elements of adverse action against Mr Barclay, in which BRIT was alleged to have engaged, were established.

An officer 59 There was no dispute that Mr Barclay was an officer of the AEU. He was undoubtedly a delegate or representative. As the primary judge said, there was no contest about Mr Barclay's role as an officer. That role, as the primary judge found, included advising members on workplace issues, ascertaining the concerns of members and communicating with members about issues of interest or concern to them. As the primary judge said, it was common ground that as sub-branch President of the AEU, Mr Barclay had the right (and probably the duty) to discuss workplace issues of concern to members and to advise them about how issues should be resolved. The primary judge found that in his role Mr Barclay was also bound to respect confidences. This evidence amply justified the primary judge's finding that Mr Barclay sent the email "In his union capacity". 60 When Mr Barclay sent the email of 29 January 2010 to all members of the AEU employed by BRIT, he was doing so as an officer. The email itself carried the description "President BRIT AEU Sub-Branch" underneath Mr Barclay's name as the signature to the email. The email contained two footers, one of which referred specifically to the AEU Victorian Branch. 61 To the extent to which counsel for BRIT attempted to negative this proposition on appeal, they faced two difficulties. The first was that BRIT had filed no notice of contention to signify that they would seek to uphold the judgment on a ground other than that on which the primary judge relied. The second was that the evidence made it abundantly clear that, in sending the email, Mr Barclay was exercising one of his functions as an officer of the AEU.

Industrial activity 62 The primary judge did not make a specific finding as to whether, in sending the email of 29 January 2010, Mr Barclay was engaged in industrial activity and, if so, what was the nature of that industrial activity. Such a finding was a crucial step in determining whether there was a causal connection between the adverse action taken against Mr Barclay and any such industrial activity. 63 In sending the email of 29 January 2010, Mr Barclay was representing or advancing the views of the AEU, within the meaning of s 347(b)(v) of the Fair Work Act. Mr Barclay was offering advice on behalf of the AEU to its members employed by BRIT that they should not agree to be part of any attempt to create false or fraudulent documents as part of the audit process. The fact that the advice was expressed in strong language did not mean that it ceased to be a representation of the view of the AEU. Similarly the fact that the language may have travelled beyond the terms in which complaints had been made to Mr Barclay did not have the result that the advice ceased to be a representation of the views of the AEU. It was not for the management of BRIT, nor is it for the Court, to make too close an examination of the terms in which a union delegate communicates with the members of his or her union. 64 In the email, Mr Barclay was also engaging in industrial activity of a kind referred to in s 347(b)(iii) or (v). By encouraging members of the AEU to contact the AEU and seek support and advice, if they were pressured to participate in producing false and fraudulent documents for the audit, Mr Barclay was encouraging or participating in a lawful activity organised or promoted by the AEU and representing or advancing the views or interests of the AEU. When Mr Barclay retained the confidences of those members who had approached him in his union capacity, and as a result did not report the concerns raised directly to management, and later refused to provide to management the names of the members who had approached him, Mr Barclay was doing so in his capacity as an officer. He was in this respect also engaged in industrial activity of the kind referred to in s 347(b)(iii) or (v). 65 The primary judge should have made specific findings that Mr Barclay had been engaged in industrial activity of these kinds, when he sent the email of 29 January 2010 and retained the confidences of members and failed to provide management with the names of the members who had approached him.

A workplace right 66 At [42] of his reasons for judgment, the primary judge doubted that cl 10 of the TAFE Agreement had any relevant application. His Honour did so on the basis that no attempt had been made by any employee to invoke the grievance procedure the subject of that clause. 67 The claim for the exercise of a workplace right, asserted by Mr Barclay and the AEU, was based on the provision of cl 10.2 of the TAFE Agreement, that an employee had the right to seek advice from and be represented by the AEU at all stages of the dispute resolution procedure. By cl 10.1, a dispute or grievance is said to arise where an employee is aggrieved by a decision or action, arising out of, or reasonably incidental to, matters covered by the TAFE Agreement. It would follow that, if an employee were aggrieved by some decision or action then a dispute or grievance would be taken to have arisen, provided that the decision or action arose out of or was reasonably incidental to matters covered by the TAFE Agreement. Such an employee would then have the right to seek advice from, and be represented by, the AEU in relation to that dispute or grievance. The question was not so much whether an employee had invoked the dispute resolution procedure (as the primary judge thought), as whether a dispute or grievance existed. 68 The difficulty in the present case was that there was no evidence that any member was seeking the advice of Mr Barclay, or requesting that he represent them, in relation to the issue of incorrect statements in documents being prepared for the audit. Several members communicated to Mr Barclay assertions that there were such incorrect statements. There is no indication that they were intending to seek his advice, or his representation, in relation to those assertions. Perhaps even more importantly, there was no attempt made to connect the subject matter of those assertions with the matters covered by the TAFE Agreement. Analysis of the matters covered by the TAFE Agreement would have been necessary if that connection were to be made. 69 Mr Barclay himself was seeking neither advice nor representation. Clause 10.2 of the TAFE Agreement did not confer on Mr Barclay any express right to advise or represent any member of the AEU. Any such right would have to be derived from cl 10.2 as a right correlative to that of a member to be represented or to receive advice. It would be necessary to determine whether there was some implied provision that it was the holder of Mr Barclay's position who was to provide the advice or representation. No argument was directed to these issues. They cannot be determined in the present case. 70 No attempt was made to argue that Mr Barclay had, or was exercising, any role or responsibility relevant to this case, conferred on him by cl 9 of the TAFE Agreement. The subject matter of that clause is the process of consultation in the BRIT workplace about the matters to which cl 9.1 refers. It is very difficult to see how cl 9 could be thought to have had any relevance, when the claims for declarations in the application at first instance were drafted. 71 For these reasons, it cannot be said that the primary judge was wrong in failing to make a finding that, prior to or at the time of sending the email of 29 January 2010, Mr Barclay had, or was exercising, a workplace right. There can be no finding based on this ground, that BRIT contravened s 340(1)(a)(ii) of the Fair Work Act.

The causal connection 72 Bowling was a case where a mix of conduct by an employee who was also a shop steward was under consideration. Whether in that case the employer had been actuated to dismiss Mr Bowling by reason of his activities as an officer of the union or by reason of his activities as an employee was complicated by the fact that it was not easy to characterise the activities in question as simply those of the employee as an employee or those of the officer. That Mr Bowling was regarded by his employer as a trouble-maker may well have been a combination of both Mr Bowling's activities as a shop steward and also as a difficult employee. The employer in that case did not discharge its onus because it failed to establish that, when it dismissed Mr Bowling, its action was dissociated or divorced from Mr Bowling's activities as a union officer. 73 This case is clear and involves none of the difficulties which arose in Bowling by reason of the confluence of employee activities with the activities and status of an officer of the union. All of the relevant conduct in issue in this case involved Mr Barclay in his union capacity. None of it involved him in his capacity as an employee of BRIT. Mr Barclay's interaction with other members of the AEU, in receiving information, maintaining the confidence of the information received, and communicating with AEU members through his email, was all done for and on behalf of the AEU. If an employer has a basis for complaint, or a legal claim arising out of such conduct, the complaint or claim is to be addressed to the union, because the source of the complaint or claim is the conduct of the union. If employers were able to punish those of its employees who are union members or officers for the conduct of their union, the protection to those persons afforded by s 364 would be entirely illusory and the purpose of the provision defeated. 74 If adverse action is taken by an employer in response to conduct of a union, it is impossible for that employer to dissociate or divorce from that conduct its reason for the taking of the adverse action simply by characterising the activity of the union as the activity of its employee. The primary judge failed to approach the matter on the basis that BRIT needed to establish that the real reason for the adverse action taken against Mr Barclay lay outside the ambit of s 346. His Honour did not hold that, in order to succeed, BRIT had to establish by evidence that the real reason or reasons for the conduct taken against Mr Barclay were dissociated from the circumstances that Mr Barclay was an officer of the AEU and had engaged in industrial activity. As we have stated, at [28] above, the search required by s 346 is a search for what actuated the conduct of the person who took adverse action, not for what that person thinks he or she was actuated by. 75 It is clear from the primary judge's reasons for judgment at [49]-[54] that his Honour found there were two significant reasons given by Dr Harvey for taking adverse action against Mr Barclay. One was that he had sent the email of 29 January 2010 to members of the AEU employed by BRIT, without having brought to the attention of senior management the allegations that were made to him by members, or in the email. The second was that the terms of the email were such as to cause distress to members of the staff of BRIT, to bring the reputation of BRIT into question and to undermine the confidence of staff in the audit process. This second reason gave rise to Dr Harvey's fear that Mr Barclay would make further allegations of a similar kind. This was the justification for her decision to require him to refrain from entering the premises of BRIT, and to deprive him of access to the internet through BRIT's computer system. 76 It is clear that, in Dr Harvey's own terms, both of these reasons were founded upon the sending of the email of 29 January 2010. The first reason was not merely that Mr Barclay was in possession of information that Dr Harvey thought he was bound to disclose to senior management, it was that he had disclosed that information to others without disclosing it to senior management. The second reason concerned the manner in which the disclosure of that information was expressed. As we have said, it was not for Dr Harvey to approve or disapprove the way in which Mr Barclay expressed his communications with members of the AEU employed by BRIT. 77 An examination of the terms of the letter Dr Harvey gave to Mr Barclay on 2 February 2010 confirms that the sending of the email, and the manner in which it was expressed, were very much part of the reasons for Dr Harvey's action. The letter opens with a reference to the email. Within its terms, it is critical of the manner of expression of the email. Indeed, the manner of expression is the very foundation of two of the three allegations that Mr Barclay was in breach of provisions of the Code of Conduct for Victorian Public Sector Employees. 78 The sending of the email, and the manner in which it was expressed, were part of the exercise by Mr Barclay of his functions as an officer of the AEU. They were also at the heart of his engagement in industrial activity, as was Mr Barclay's insistence upon retaining the confidences of the members who approached him. Accordingly, Dr Harvey's evidence, as well as the terms of the letter, made it clear that, on behalf of BRIT, Dr Harvey took adverse action against Mr Barclay in three respects, for reasons that included the fact that he was an officer of the AEU and the fact that he had engaged in industrial activity. Mr Barclay may not have performed the industrial activity in which he was engaged as well as it could have been performed. He may well have overstated the nature of the complaints that had been made to him. Even assuming that to be so, Mr Barclay's failure was the failure of a union officer. It was not the failure of an employee and could not have been dealt with as such. The fact that Dr Harvey may have chosen to characterise the conduct of an officer as the conduct of an employee and therefore did not regard herself as taking action because Mr Barclay was an officer, or because of any of his industrial activities, does not alter the fact that her real reasons included these factors. 79 For these reasons, the primary judge should have found that BRIT contravened s 346(a) and (b) of the Fair Work Act. It is necessary to allow the appeal.

The appropriate orders 80 Counsel for Mr Barclay and the AEU invited the Court, if it should allow the appeal, to set aside the order of the primary judge dismissing the application, and to proceed to make consequential orders. The consequential orders they sought were of various kinds. They included declarations that are expressed in the notice of appeal in terms far too imprecise to justify being made, if indeed declarations were to be regarded as appropriate. The orders also include the imposition of penalties for each of the contraventions of the Fair Work Act established. The determination of appropriate penalties would require the hearing of submissions of a detailed nature, before the Court could determine what penalties were appropriate. Finally, the orders sought included the grant of an injunction, giving effect to the Court's findings. Counsel for Mr Barclay and the AEU made it clear that they sought an injunction restraining BRIT from proceeding to deal with the disciplinary proceedings the subject of Dr Harvey's letter, handed to Mr Barclay on 2 February 2010. Such an injunction is wholly unnecessary. The Court has concluded that BRIT took adverse action against Mr Barclay, in contravention of s 346(a) and (b) of the Fair Work Act, in three ways. It has not determined whether there was also a fourth form of adverse action, involving making him subject to disciplinary proceedings. It is not to be assumed that BRIT would ignore that finding, and would proceed to place itself in further jeopardy by continuing the disciplinary proceedings, and imposing some penalty on Mr Barclay as a result of them. To the contrary, it is to be assumed that BRIT will abandon those proceedings forthwith. 81 In order that a further hearing can be conducted, to determine the appropriate penalty or penalties to be imposed on BRIT for the contraventions we have found to have occurred, the case should be remitted to the primary judge. It would be an excessive use of the resources of the Court to reconvene the Full Court for the purpose of hearing those submissions. Such a reconvening would involve the parties in further expense no less than that likely to be incurred by them on a further hearing before a single judge. 82 The appropriate orders are that the appeal be allowed, that the order of the primary judge, made on 25 March 2010, dismissing the application in proceeding number VID 77 of 2010, be set aside, and that the matter be remitted to the primary judge for the making of further orders in accordance with these reasons for judgment. 83 There should be no order for costs. The case falls within s 570(1) of the Fair Work Act, as a proceeding in which no party may be ordered to pay costs incurred by another party. It does not fall within any of the exceptions to that provision, found in s 570(2). I certify that the preceding eighty-three (83) numbered paragraphs are a true copy of the reasons for judgment herein of the Honourable Justice Gray and Justice Bromberg.

Associate: Dated: 8 February 2011 IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY FAIR WORK DIVISION VID 267 of 2010

AND: THE BOARD OF BENDIGO REGIONAL INSTITUTE OF TECHNICAL AND FURTHER EDUCATION

JUDGES: GRAY, LANDER AND BROMBERG JJ DATE: 9 FEBRUARY 2011 PLACE: MELBOURNE

LANDER J: 84 This is an appeal from an order of a judge of this Court dismissing the appellants' application for relief under s 346 of the Fair Work Act 2009 (Cth) (the Act). 85 I have had the advantage of reading the draft judgment of Gray and Bromberg JJ. Unfortunately I cannot agree with their Honours' reasons and orders. These are my reasons for concluding that this appeal should be dismissed.

The undisputed facts 86 The first appellant, Mr Barclay, was the President of the Australian Education Union Sub-Branch at the Bendigo Regional Institute of TAFE (BRIT) who on 29 January 2010 without any reference to anyone senior to himself in BRIT published the following email to the members of the AEU employed by BRIT: From: Greg Barclay [mailto:gbarclay@britafe.vic.edu.au] Sent: Friday, 29 January 2010 10:00 AM Subject: AEU - A note of caution Hi all, The flurry of activity across the Institute to prepare for the upcoming reaccreditation audit is getting to the pointy end with the material having been sent off for the auditors to look through prior to the visit in February. It has been reported by several members that they have witnessed or been asked to be part of producing false and fraudulent documents for the audit. It is stating the obvious but, DO NOT AGREE TO BE PART OF ANY ATTEMPT TO CREATE FALSE/FRADULENT [sic] DOCUMENTATION OR PARTICIPATE IN THESE TYPES OF ACTIVITIES. If you have felt pressured to participate in this kind of activity please (as have several members to date) contact the AEU and seek their support and advice. Greg Barclay President BRIT AEU Sub-Branch 87 At the relevant time an audit was to be performed by the Victorian Registration and Qualifications Authority (the VRQA) on 16-17 February 2010 for the purpose of establishing whether BRIT had complied with the various requirements on which its continuing accreditation and funding depended. The evidence of Dr Louise Harvey, who was the Chief Executive Officer at the relevant time, was that: 2. … A satisfactory Audit result is crucial for Bendigo TAFE because failure to comply with VRQA's requirements could ultimately lead to Bendigo TAFE losing its accreditation and hence its right to deliver education and training. Accordingly, the Audit is taken very seriously by Bendigo TAFE. 3. It is the role of the Manager, Teaching Learning and Quality to oversee Bendigo TAFE's preparations for the Audit, with the assistance of his team, which includes Mr Barclay in his capacity as Team Leader - Teaching Excellence. 88 That evidence was not disputed. Mr Barclay was part of the team to oversee BRIT's preparation for the VRQA audit which if unsatisfactory could mean that BRIT could lose its accreditation and cease to be able to function as a provider of education and training. 89 The documents to which the email referred were the documents which were to be presented to the auditors for the purpose of their audit. 90 Dr Harvey was not a direct recipient of the email. However, on 29 January 2010 a number of persons who received the email forwarded copies to senior officers of BRIT and on 1 February 2010 Dr Harvey was provided with a copy of the email by one of her managers, Mr Jamie Eckett. Mr Eckett also provided Dr Harvey with the email comments made by two managers who had seen the original email to the effect that the email had the potential to cause serious damage to BRIT in the upcoming audit. 91 Mr Eckett told Dr Harvey that he had discussed the email with Mr Barclay that day and had been told by Mr Barclay that he would not provide Mr Eckett with the names of his informants because they were union members who did not wish to disclose the fact of their membership. Mr Eckett also told Dr Harvey that Mr Barclay declined to provide details of the allegations. 92 Dr Harvey considered the email and the other material with which she had been provided, and formed the view that Mr Barclay had contravened certain clauses of the Code of Conduct for Victorian Public Sector employees (the Code of Conduct), which might necessitate the institution of disciplinary proceedings. On the next day she met with Mr Barclay and an AEU representative and handed Mr Barclay a letter in the following terms: Dear Greg Re: Possible Serious Misconduct I refer to an email sent by you to many Bendigo TAFE staff on Friday, 29th January 2010 in which you alleged that serious inappropriate behaviour has occurred in that several staff members have been "asked to be part of producing false and fraudulent documents for the audit" for Bendigo TAFE's re-accreditation. Your allegation raises the possibility that improper conduct has occurred which will require a full and thorough independent investigation. I am in the process of arranging for this to occur. You will be required to be interviewed by the investigator appointed. I will supply more information to you about that in the near future. However, the purpose of this letter is to ask that you show cause why you should not be subject to disciplinary action for serious misconduct in your role as Team Leader - Teaching Excellence. It appears to me that such disciplinary action may be warranted because of: the manner in which you have raised the allegation, via a broadly distributed email; your actions in not reporting the instances of alleged improper conduct directly to your manager or me to enable us to take appropriate action; and your refusal or failure to provide particulars of the allegations when asked to do so by your manager. In my preliminary view, this conduct is inconsistent with the behaviour expected of a public sector employee, a BRIT employee and a Team Leader in the Teaching, Learning & Quality Unit of this organisation. Additionally, I am of the view that because your accusation is vague and general, it doesn't demonstrate proper respect for your fellow employees and places the individuals concerned in the re-accreditation process under the shadow of suspicion with no right of reply or defence. I believe you have breached Clause 3.6, 3.9 and 6.1 of the Code of Conduct for Victorian Public Sector Employees. Clause 3.6 refers to public sector employees reporting to an appropriate authority any unethical behaviour. You did not report to your supervisor your knowledge of possible unethical behaviour and as yet have not provided proof of your allegation to your manager when asked to do so. Clause 3.9 refers to public sector employees behaving in a manner that does not bring themselves or the public sector into disrepute. The manner in which you have disseminated your allegations (whether or not they are well-founded) clearly threatens the reputation and probity of Bendigo TAFE. Finally, Clause 6.1 refers to public sector employees being fair, objective and courteous in their dealings with other public sector employees. By making generalised allegations, that could apply to anyone in the Institute involved in the re-accreditation process, you have cast a slur on your colleagues against which they cannot defend themselves. In line with Clause 3 of the BRIT Staff Discipline procedure, it is my decision to suspend you from duty on full pay until Friday, 19th February 2010. This period of time will provide you with the opportunity to formally respond to the charge of serious misconduct as outlined above. You should provide your response to the charges by no later than 12 noon on 17 February 2010. Until 19 February you are not to attend any of the Bendigo TAFE campuses and your electronic access account will be suspended. Yours sincerely Dr Louise Harvey Chief Executive Officer 93 On 9 February 2010 Dr Harvey wrote to Mr Barclay advising him that she had appointed Ms Marlene Johnson to conduct an investigation into Mr Barclay's allegations. She told him that she required him to be available to be interviewed by Ms Johnson on Friday, 12 February 2010. 94 On 12 February 2010, in the course of an interlocutory hearing in this Court, BRIT agreed to lift Mr Barclay's suspension. The disciplinary process which was initiated by Dr Harvey's letter has not yet taken place but has been held in abeyance pending the disposal of the proceedings and the appeal. Indeed, on the appeal, Mr Barclay seeks an injunction restraining BRIT from conducting such an investigation.

Adverse action 95 In the proceeding before the primary judge Mr Barclay asserted that the action taken by BRIT in suspending him albeit on full pay and precluding him from BRIT's campuses constituted adverse action within the meaning of s 342 of the Act. He also asserted that the requirement that he show cause why he should not be subject to disciplinary action for serious misconduct and the appointment of Ms Johnson to conduct an investigation also amounted to adverse action within the meaning of that section. 96 Section 342 of the Act contains a table which sets out the circumstances in which a person takes adverse action against another person. Relevantly, for the purpose of this appeal, Item 1 provides: Item Column 1 Column 2 Adverse action is taken by … if … 1 an employer against an employee the employer: (a) dismisses the employee; or (b) injures the employee in his or her employment; or (c) alters the position of the employee to the employee's prejudice; or (d) discriminates between the employee and other employees of the employer.

97 Adverse action includes threatening to take action covered by the table in s 342(1) or organising such action: s 342(2). 98 At the hearing before the primary judge the respondent conceded that the suspension and the preclusion from the BRIT campuses did amount to adverse action within the meaning of Item 1, but argued that the requirement to show cause and the appointment of Ms Johnson to investigate Mr Barclay's allegations did not. 99 The question whether that conduct would amount to adverse action would be answered by reference to paragraph (c) in Column 2 of Item 1 and that is, whether the requirement to show cause and the appointment of the investigator altered Mr Barclay's position to his prejudice. 100 The Act precludes an employer taking adverse action in the circumstances identified in Part 3-1 of Chapter 3 of the Act. It will therefore be necessary to examine the relevant provision of that Part.

The claim before the primary judge 101 It is necessary because of the provisions of Division 7 of Part 3-1 of the Act, especially ss 360 and 361 to which I will later refer, to identify precisely the claims made by the appellants and to identify precisely the reason or reasons why the appellants claimed the respondent took adverse action against Mr Barclay. 102 In the originating application which was filed on 10 February 2010, the appellants complained that: 1. the respondent had contravened s 346(a) of the Act by taking adverse action for the reason that the first appellant was an officer of the second appellant; 2. the respondent had contravened s 346(b) of the Act by taking adverse action for the reason that the first appellant: (a) encouraged or participated in a lawful activity organised or promoted by the second applicant; or (b) represented or advanced the views, claims or interests of the second applicant; 3. the respondent had contravened s 340(1)(a)(ii) of the Act by taking action for the reason that the first appellant exercised workplace rights being: (a) a role or responsibility under clause 10 of the Victorian TAFE Teaching Staff Multi Business Agreement (2009) (TSMBA); (b) a role or responsibility under clause 9 of the TSMBA; 4. the respondent had contravened s 340(1)(a)(ii) of the Act by taking an adverse action for the reason that the first appellant exercised a workplace right (a) by participating in a process or proceeding under a workplace instrument being a dispute settlement procedure under clause 10 or a consultation under clause 9 of the TSMBA. 103 In summary therefore the appellants claim that the respondent took adverse action against Mr Barclay because: (a) the first appellant was an officer of the second appellant - a contravention of s 346(a) of the Act; (b) the first appellant encouraged or participated in a lawful activity organised by the second appellant - a contravention of s 346(b) of the Act; (c) the first appellant represented or advanced the views of the second appellant - a contravention of s 346(b) of the Act; (d) the first appellant exercised workplace rights being a role or responsibility under clause 10 of the Victorian TAFE Teaching Staff Multi Business Agreement (TSMBA) - a contravention of s 340(1)(a)(ii) of the Act; (e) the first appellant exercised a workplace right by participating in a process or proceeding under a workplace instrument being a dispute settlement procedure under clause 10 or a consultation under clause 9 of the TSMBA - a contravention of s 340(1)(a)(ii) of the Act. 104 In each of those claims the appellants claimed that the respondent took the action for the reason indicated or for reasons that include the reason. In respect of each claim the appellants contended that the adverse section included: (a) requiring the first appellant to show cause why the first appellant should not be the subject of disciplinary action for serious misconduct; and (b) threatening to take disciplinary action against the first appellant. 105 The appellants sought declarations in the terms of those claims together with a further declaration that the: First appellant is not obliged to disclose to the respondent the names of members of the second appellant who: (1) have sought the first appellant's advice pursuant to clause 10.2 of the TSMBA; (2) are represented by the first appellant pursuant to clause 10.2 of the TSMBA. 106 In addition, the appellants sought orders: (a) for the imposition of a penalty for each contravention pursuant to s 546(1) of the Act; (b) that pursuant to s 546(1) of the Act the penalty be paid to the second appellant or alternatively the first appellant; (c) that the respondent pay compensation pursuant to s 545(2)(b) of the Act for the loss suffered by the appellants as a result of the contraventions; (d) for interest; (e) for a permanent injunction "to give effect to the Court's orders and findings". 107 The appellants also sought interlocutory relief for interlocutory injunctions relating to the first appellant's suspension and preclusion from BRIT's campuses and the requirement for the first appellant to show cause and the threat of disciplinary action. That relief does not need to be addressed because this Court is only concerned with an appeal against orders relating to the appellants' claim for permanent relief.

The legislation 108 Chapter 3 of the Act addresses the rights and responsibilities of employees, employers and organisations. The objects of the Part are set out in s 336 of the Act: 336 The objects of this Part are as follows: (a) to protect workplace rights; (b) to protect freedom of association by ensuring that persons are: (i) free to become, or not become, members of industrial associations; and (ii) free to be represented, or not represented, by industrial associations; and (iii) free to participate, or not participate, in lawful industrial activities; (c) to provide protection from workplace discrimination; (d) to provide effective relief for persons who have been discriminated against, victimised or otherwise adversely affected as a result of contraventions of this Part. 109 Division 3 of the Act deals with workplace rights. Section 340(1) relevantly provides: (1) A person must not take adverse action against another person: (a) because the other person: (i) has a workplace right; or (ii) has, or has not, exercised a workplace right; or (iii) proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right; … 110 In this case the appellants' 3rd and 4th complaints were that the adverse action was taken in contravention of s 340(1)(a)(ii) in that the first appellant had exercised a workplace right. Section 341 addresses the meaning of a workplace right. 111 Section 341(1) relevantly provides: (1) A person has a workplace right if the person: (a) is entitled to the benefit of, or has a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body; or (b) is able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument; … 112 Section 341(2) addresses the phrase used in s 341(1)(b) "a process or proceedings under a workplace law or workplace instrument". It provides relevantly for the 3rd and 4th claims: (2) Each of the following is a process or proceeding under a workplace law or workplace instrument: … (j) dispute settlement for which provision is made by, or under, a workplace law or workplace instrument; (k) any other process or proceedings under a workplace law or workplace instrument. 113 Division 4 deals with industrial activities. Section 346 provides: A person must not take adverse action against another person because the other person: (a) is or is not, or was or was not, an officer or member of an industrial association; or (b) engages, or has at any time engaged or proposed to engage, in industrial activity within the meaning of paragraph 347(a) or (b); or (c) does not engage, or has at any time not engaged or proposed to not engage, in industrial activity within the meaning of paragraphs 347(c) to (g). 114 The appellants rely upon s 346(a) for their first complaint and s 346(b) for the second complaint. The expression "engages in industrial activity" in s 346(b) is defined in s 347 which, relevantly having regard to the appellants' 2nd claim, provides: A person engages in industrial activity if the person: … (b) does, or does not: … (iii) encourage, or participate in, a lawful activity organised or promoted by an industrial association; or … (v) represent or advance the views, claims or interests of an industrial association; 115 Division 5 gives other protections to employees but they are not directly relevant for the purpose of this appeal. Division 7 deals with ancillary rules which apply to Divisions 3, 4 and 5. Sections 360, 361 and 362 are all relevant. Section 360 provides: 360 Multiple reasons for action For the purposes of this Part, a person takes action for a particular reason if the reasons for the action include that reason. 116 If a person takes action for more than one reason, an applicant need only show that one of the reasons for which the person took the action was an impugned reason. 117 It can be seen from the way the appellants framed their claims that the appellants rely upon s 360. 118 Section 361 provides: 361 Reason for action to be presumed unless proved otherwise (1) If: (a) in an application in relation to a contravention of this Part, it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and (b) taking that action for that reason or with that intent would constitute a contravention of this Part; it is presumed, in proceedings arising from the application, that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise. (2) Subsection (1) does not apply in relation to orders for an interim injunction. 119 Section 361 is important. It raises a rebuttable presumption when it is alleged that a person took or is taking action for a particular reason or with a particular intent. If such an allegation is made in an application, it is presumed that the action was or is being taken for the reason or intent alleged unless the person against whom the allegation is made proves otherwise. Section 361 casts the onus upon who it is alleged took or is taking an action for a particular reason or with a particular intent to prove that the person did not in fact do so. 120 Section 361 only operates to raise the presumption in relation to the particular reasons in an application. That is why I said in [17] that it is necessary to identify precisely the claims made by the appellants in their application and why in [19] I identified those claims. Regard must be had to the reason alleged in the application which initiated the proceeding. 121 Section 362 provides: 362 Advising, encouraging, inciting or coercing action (1) If: (a) for a particular reason (the first persons' reason), a person advises, encourages or incites, or takes any action with intent to coerce, a second person to take action; and (b) the action, if taken by the second person for the first person's reason, would contravene a provision of this Part; the first person is taken to have contravened the provision. (2) Subsection (1) does not limit section 550. 122 Section 362 is relevant because of the arguments advanced by the appellants as to the proper construction of s 346. 123 Both s 340 and s 346 are civil remedy provisions to which s 546 applies. Section 546 empowers the Court to impose pecuniary penalties if the Court is satisfied that a person has contravened a civil remedy provision: s 546(1). That section also provides for the maximum pecuniary penalty which may be imposed and payment of that penalty. Section 545 empowers the Court to award compensation for a loss that a person has suffered because of a contravention of a civil remedy provision: s 545(2). Section 547 provides for an award of interest in relation to an amount that a person is ordered to pay under the Act. For reasons which follow, this Court in my opinion does not need to address those sections.

The primary judge's reasons 124 The primary judge first addressed a question of the construction of s 346 of the Act which was raised by the appellants. 125 It was contended by the appellants before the primary judge that the inclusion of the word "because" in s 340(1)(a) and in the preamble to s 346 meant that the actor's subjective reasons for taking the adverse action were not relevant and should not be taken into account. It was contended by the appellants that the Court should approach a consideration of those two sections by applying an objective test. A subjective test was to be eschewed. 126 The primary judge rejected the appellants' construction of those sections which he said was inconsistent with the legislative history, relevant principles of statutory construction and authority. He concluded that the test in both of those sections was subjective and required the Court to determine why the employer took the adverse action against the employee by reference to the evidence from the decision maker which would explain why the adverse action was taken. 127 The primary judge addressed the appellants' argument that the first appellant had distributed the email only to Union members in the first appellant's capacity as the Sub-Branch President of the AEU as a result of allegations made to the first appellant by four members of the AEU who were employed at BRIT. The primary judge considered the first appellant's claim that those four members did not wish to have him pass the allegations on to management and did not wish to have their identities disclosed and the first appellant's assertion that he had not intended that the email be seen by senior managers. It was part of the appellants' case that the footers to the email required persons who were not intended to receive the email to destroy that email. 128 The primary judge considered the first appellant's evidence that he had responsibilities as the Sub-Branch President of the AEU to represent the views of the AEU's members and he relied upon clauses 10.1 and 10.2 of the TSMBA (see [96] below). 129 His Honour noted that there was no dispute that the first appellant was entitled to and was probably bound to receive complaints of matters of concern from members and to advise those members in respect of those complaints, and if necessary take action upon those complaints. Again it was not disputed that he was entitled to receive those complaints and deal with them in confidence. 130 The primary judge analysed the evidence of what the first appellant had been told by the four members and found that the claim that members had "witnessed or been asked to be part of producing false or fraudulent documents for the audit" was not an accurate characterisation of the information with which he had been provided. 131 The primary judge found that the email came to the attention of Dr Harvey because of concerns by managers who thought she ought to be advised of the contents of the email. He found that Dr Harvey "was entitled (if not bound) to investigate the allegations". He rejected the appellants' case that she was precluded from doing so because of the footers which were attached to the email. He did not find it necessary to determine whether Dr Harvey should have destroyed the email in accordance with the footer, because in fact she did not and her failure to do so was irrelevant in determining the issues before the Court. 132 The primary judge noted the concession made by the respondent in relation to the adverse action relating to suspension and preclusion to which I have referred (at [15]), and considered the question whether the commencement of disciplinary proceedings amounted to the taking of adverse action. He noted the competing authorities on the point and concluded that whether the issuing of a show cause notice or the laying of disciplinary charges constituted adverse action depends upon the particular circumstances of any given case. He did not reach a conclusion as to whether the particular circumstances before him meant that the issue of the show cause notice or the laying of disciplinary charges constituted adverse action. 133 The primary judge addressed Dr Harvey's evidence which was to the effect that she had taken the action which she did not for any impermissible reason and he addressed the reasons which she gave. He said (at [51]-[52]): She had determined to institute an investigation into Mr Barclay's actions because it appeared to her that he had failed to bring serious allegations to the attention of senior managers and had "proceeded to cast aspersions and innuendo upon his colleagues by way of a widely circulated e-mail." She considered that this conduct provided "prima facie evidence of a breach of the code of conduct and his obligations as a [BRIT] employee." Dr Harvey said that she had decided to suspend Mr Barclay "because I was of the view that the allegations against him were serious and I was concerned if Mr Barclay was not suspended he might cause further damage to the reputation of the [BRIT] and of the staff in the [BRIT]. 134 After addressing her denials that she had taken any adverse action for any impermissible reason he said (at [54]-[55]): Dr Harvey was a somewhat tentative and nervous witness, especially at the commencement of her cross-examination. At times she was unnecessarily guarded and defensive. At one point, for example, she was disposed to deny that the exhortation to members, in Mr Barclay's e-mail, not to agree to be part of any attempt to create false or fraudulent documentation, was consistent with BRIT's prevention of fraud policy. When, however, she was called on to explain her reasons for taking adverse action against Mr Barclay she provided convincing and credible explanations of why it was that she took the steps that she did. Dr Harvey said that she had been extremely concerned by the statement that false and fraudulent documentation had been prepared for the purposes of the audit. She wished to establish whether or not this had occurred and immediately instituted an inquiry to establish whether there was any foundation for the allegation. She adhered to her explanation (see above at [49]-[50]) for calling on Mr Barclay to show cause why he should not be disciplined for circulating the e-mail. She said that she had determined to exclude him from BRIT campuses and suspend his e-mail access because she did not want Mr Barclay on the premises while the auditors were there and because she did not want any other "loose allegations" made inappropriately during the audit to the detriment of BRIT. She maintained her denials of having acted against Mr Barclay for any reason associated with his union membership, office or activities. She had not turned her mind to the possible relevance of Clause 10 of the Agreement. I accept her evidence. I am satisfied that she did not act for any proscribed reason. Rather, she acted for the reasons which she gave. In making this finding I am not to be understood as endorsing or criticising any or all of the action which she took. Nor is it appropriate that I express any views on the issues in dispute in the disciplinary proceeding which Dr Harvey has instituted. The decision to require Mr Barclay to show cause was made bona fide. The outcome of the disciplinary proceeding will be for the enquiry officer to determine having considered the evidence and the submissions of the parties. 135 Without saying so, his Honour treated the findings in those paragraphs as despositive of the proceedings for declarations and orders. However before he concluded his reasons, he addressed the question of compensation under s 545 of the Act. He found that the first appellant had failed to establish that he had suffered any loss as a result of the adverse action which had been taken against him, because he had suffered no loss of salary whilst suspended on full pay. Although the first appellant had deposed to some feelings of embarrassment and certain ill-health during February, the first appellant also acknowledged that he was subject to other stresses at the relevant time and his Honour observed that no medical evidence was called to link any illness suffered by him to the adverse action which had been taken against him. For those reasons he concluded that the first appellant would not be entitled to compensation even if he were wrong to conclude as he did that there had been no contraventions. 136 His Honour did not address the second appellant's claim for compensation which was contained in the application, presumably because such a claim was either not maintained or was clearly untenable. The primary judge dismissed the proceeding.

The grounds of appeal 137 Both appellants have appealed on the one notice of appeal relying upon five separate grounds of appeal. During the hearing of the appeal whilst Mr Gunst QC was making his submissions on behalf of the appellants, Mr Gunst indicated that he would be applying for leave to amend the notice of appeal to include a further ground to the effect that the primary judge had erred in failing to find that requiring the first appellant to show cause why he should not be submitted to disciplinary action constituted adverse action within the meaning of the Act. As I have mentioned, the primary judge did not finally rule on that issue because he was of the opinion that the proceeding should be dismissed because no contraventions were proved. 138 In fact, no amended notice of appeal was produced to the Court until the end of Mr Gunst's reply. The respondent opposed the application for leave to amend the notice of appeal to propound that ground and the Court was unanimously of the opinion that the application for leave should be refused. For my part, I thought the application was made far too late, because if the application were allowed the respondent would have been required to address the ground at some later time. The application was also made without any explanation as to why the ground had not been included in the notice of appeal as filed and without any explanation as to why an application had not been made at an earlier time to include the ground in circumstances where it was clear from his Honour's reasons that his Honour had not, for reasons which his Honour gave, reached a final conclusion on that matter. 139 The five separate grounds upon which the appellants rely may be summarised: 1. On the basis of His Honour's own findings the primary Judge erred in not finding that Respondent contravened ss 340 and 346 of the Act. [Particulars omitted] 2. The primary Judge erred in finding that Dr Harvey had denied that she had taken adverse action because Mr Barclay had engaged in industrial activities. 3. In concluding that the Respondent did not act for a proscribed reason the primary Judge's conclusion was clearly wrong and glaringly improbable. [Particulars omitted] 4. In concluding that the Respondent did not act for a proscribed reason, the primary Judge "failed to appreciate the weight, or bearing of established circumstances" in that the first appellant (a) was acting as an officer of the AEU; (b) was engaging in industrial activities; or (c) was exercising a workplace right by: (i) keeping the members complaints confidential; (ii) not revealing the names of the union members; (iii) sending the email of 29 Jan 2010. 5. The primary Judge wrongly construed "because" in sections 340 and 346 of the Act. 140 The orders sought by the appellants in the notice of appeal mirror the claims, declarations and orders sought in the application, save that there is no order sought in the notice of appeal that the Court grant a declaration that the first appellant is not obliged to disclose to the respondent the names of the members of the second appellant who sought the advice of the first appellant and who were represented by the first appellant pursuant to clause 10.2 of the TSMBA. Because the notice of appeal otherwise seeks the same orders as the application, it is not necessary to set out the relief claimed. 141 During the hearing it was pointed out to the appellants' counsel that although the appellants sought an order in the notice of appeal that the respondent pay the appellants compensation, there was no ground of appeal against his Honour's finding that the first appellant had not suffered any loss. The orders sought seeking compensation and interest for both appellants were abandoned during the appeal.

The case before the primary judge 142 Before I address the submissions which were made on appeal it is necessary to say something about the way in which the appellants ran this case before the primary judge. During the hearing of the appeal in response to questions from the Court the parties provided the Court with their written outline of submissions to the primary judge. At trial the appellants contended that the adverse action taken by the respondent was as claimed in the application and the orders sought in the notice of appeal: paragraph 51 of the of the appellants' written submissions at trial (APWSAT). For their claims the appellants principally relied upon s 346(a) of the Act. The appellants contended that the question of causation in s 346(a) was objective: paragraph 36 of the APWSAT. The appellants relied upon s 360 of the Act and upon the rebuttable presumption in s 361. 143 The appellants contended that for the claim under s 346(a) "a reason for the respondent's adverse actions were the first applicant's activities as an officer": paragraph 45 of the APWSAT. 144 The appellants contended that the protection granted by that paragraph "is not limited to prohibiting adverse action due to the status of an employee as a member or officer": paragraph 56 of the APWSAT. 145 They contended at paragraph 57 of the APWSAT: Adverse action will contravene subsection 346(1)(a) if it is taken because: (a) The applicant has carried out ordinary activities as an officer or representative; or (b) The applicant has taken an action as an incident of holding or exercising his or her powers or duties as an officer; or (c) "The employer was motivated by a dislike of the manner in which the delegate has performed duties as a delegate". (Footnotes omitted.) 146 In support of that claim the appellants contended before the primary judge that the reasons proffered by Dr Harvey for the adverse action "are unambiguously related to the performance of the functions of a representative by Mr Barclay": paragraph 60 of the APWSAT. 147 They addressed each of the reasons given in Mr Barclay's letter of 2 February 2010. In respect of each of those reasons the appellants contended that Dr Harvey's evidence should not be accepted and that she should not be believed. 148 The principal case put by the appellants before the primary judge was that contained in paragraph 1 of the application, which was that the adverse action taken by the respondent, which included requiring the first appellant to show cause why he should not be the subject of disciplinary action for serious misconduct and threatening to take disciplinary action against the first appellant, was taken because of the first appellant's activities as an officer of the second appellant. The appellants' case was that the test of the reasons why the respondent took that course was objective and not subjective. 149 In their written submissions the appellants identified "The Alternative Causes of Action". 150 In paragraph 103 of the APWSAT the appellants contended that the respondent had contravened s 341(a)(ii) (sic) in that the respondent had taken adverse action against the first appellant because he had exercised a workplace right. The reference to s 341(a)(ii) is not correct. I think the appellants were intending to rely upon s 340(1)(a)(ii). 151 The appellants contended that the workplace rights which were being exercised were those in s 341(1)(a) and (b) relying upon the definition of process or proceeding in s 341(2)(j) and (k). 152 In paragraph 105 of the APSWAT the appellants asserted that the respondent took the adverse action because the first appellant exercised a role or responsibility under a workplace instrument which is defined in s 12 of the Act to mean an instrument that is made under or is recognised by a workplace law that concerns the relations between employers and employees. The appellants relied upon the Victorian TAFE TSMBA and, in particular, paragraph 8.2 of that agreement which they said created a role or responsibility for the first appellant. They also relied upon clause 10 of the TSMBA (referred to at [45] above and [96] below). 153 They contended in paragraph 111 and paragraph 112: 111. The role and responsibilities of a representative under clauses 8 and 10 including the following: (a) Ascertaining whether or not employees are concerned with or aggrieved by actions of the employer; (b) Consulting with employees about actual or possible concerns, disputes and grievances; (c) Giving advice to employees; (d) Consulting about and discussing any concern, dispute or grievance with other members to ascertain the shared extent of the concern; (e) Encouraging members with disputes and concerns to consult with, and obtain advice and support from, AEU representatives; (f) Keeping confidential any information conveyed in confidence in accordance with a request made by a member; and (g) Informing members of the fact that concerns, disputes and grievances had been communicated to a workplace representative. 112. The members were clearly "aggrieved" by actions or decisions of the employer. They were concerned, anxious or worried. They were concerned that there might be reprisals if they took the matter further. They had approached Mr Barclay in his capacity as union representative. They were each asked is (sic) they wished to file a formal grievance, a clear indication that the provisions of clause 10 of the MBA were activated. They each received advice from Mr Barclay, first orally and secondly in the email of 29 January. (Footnotes omitted.) 154 The appellants contended that each of the reasons relied upon by Dr Harvey for taking the action which she did was because the first appellant was exercising a role or responsibility under the TSMBA; in particular sending out an email which was in the exercise of that role or responsibility. 155 Next the appellants contended that the respondent had taken adverse action because the first appellant had exercised a right by participating in a process under a workplace agreement relying upon s 340(1)(a)(ii), and in particular s 341(1)(b) and subparagraphs (j) and (k) of s 341(2). 156 For this contravention the appellants claimed that the first appellant was participating in a process under clause 10 of the TSMBA and they claimed that each of the proffered reasons were because the first appellant was exercising a right by taking a step to better advise and represent members under the agreement. 157 Lastly, the appellants relied upon s 346(b) to make the claim that the respondent had taken adverse action against the first appellant because he had engaged in industrial activity within the meaning of s 347(b)(v) in that he was representing or advancing the views, claims or interests of an industrial association.

The appellants' submissions on appeal 158 On appeal the appellants contended, as they had at trial, that s 346(a) is not limited to adverse action because of an officer's status as an officer. The appellants contended that s 346(a) should not be read down by reference to s 346(b), because s 346(a) is a remedial provision and should be beneficially construed. It was submitted that the protection afforded by s 346(a) extends to any adverse action taken because of an officer's activities as an officer, because the officer "(a) has carried out ordinary activities as an officer, or (b) has taken on action as an incident of holding or exercising his or her powers of duties as an officer". 159 It was submitted that the alternative construction that s 346(a) only protects an officer by right of an officer's status would reduce s 346(a) to a mere shell and the paragraph would be devoid of all meaningful benefit. 160 The appellants contended that s 346(a) mirrors s 351(1) which addresses discrimination and an employer taking adverse action against a person who is an employee because of the person's race, colour, sex, sexual preference, age, physical or mental disability, marital status, family or carer's responsibilities, pregnancy, religion, political opinion, national extraction or social origin. It was submitted that both sections are not limited to protecting employers against adverse action because of the relevant status, but both sections should be construed to extend to characteristics that appertain generally to persons possessing the relevant status or manifestations of that status. 161 Alternatively, the appellants contended that the respondent had taken adverse action because the first appellant had engaged in industrial activity within the meaning of s 346(b) and, in particular, because of the provisions of s 347(b)(v) in that the first appellant was representing or advancing the views or claims or interests of the second appellant. 162 Grounds 2 and 3 of the notice of appeal were not pressed. 163 Ground 4 concerned the finding by the primary judge that Dr Harvey "acted for the reasons which she gave" but "did not act for a proscribed reason". It was contended by the appellants that: The Full Court should allow the appeal if, in coming to that conclusion, the learned trial judge proceeded on a wrong principle, or failed to appreciate the weight or bearing of established circumstance or the conclusion is clearly wrong on grounds which do not depend merely on credibility. 164 The appellants identified circumstances which they said were inextricably intertwined with the first appellant's position as an officer and would not have been carried out by him if he were not an officer, and the doing of those acts was the cause of the adverse action. They contended that the learned primary judge failed to appreciate "the weight or bearing" of those established circumstances and acted on a wrong principle. 165 Lastly, in ground 5, the appellants addressed the construction of s 346. They submitted in their written submissions: 129. … As the High Court has observed in Re Alcan Australia Ltd; Ex parte Federation of Industrial Manufacturing and Engineering Employees: "… trade unions exist to further the industrial interests of their members and to represent them in negotiations with employers and in proceedings in the various industrial tribunals established for the regulation of the industrial relationships of employers and employees." (Footnotes omitted.) 166 It was put by the appellants that in determining why an employer has taken adverse action the Court must not only consider the credibility of any denial of any impermissible motive by the employer, but must consider all of the relevant evidence that bears upon that issue. 167 It was contended that the primary judge had fallen into error by only having regard to the subjective intention of Dr Harvey and failed to have regard to the evidence led on behalf of the appellants concerning the first appellant's role and the fact that each of the first appellant's acts were done in his capacity as an officer. 168 In a separate document which was handed up during the hearing of the appeal the appellants addressed the question of adverse action contending that the commencement of the disciplinary process for serious misconduct by charging the first appellant with serious misconduct amounts to altering the position of the employee to the employee's prejudice and therefore comes within Item 1(c) of s 342(1). For that submission the appellants relied upon Patrick Stevedores Operations (No 2) Pty Ltd v Maritime Union of Australia (No 3) (1998) 195 CLR 1 at 18; Community and Public Sector Union v Telstra Corp Limited (2001) 107 FCR 93 at 100; and in particular the dicta of Goldberg J in United Firefighters Union of Australia v Metropolitan Fire and Emergency Services Board (2003) 123 IR 86 at 89 where his Honour said: The laying of the charges imposes a burden on the person's charge to respond to allegations related to their conduct as employees of the Board. I do not consider that one can separate out the effect and consequence of the charges from the fact that they occurred because of the employee's employment by the Board. I do not accept that a person charged is not affected in his or her employment until the charge has been proven. The expressions found in s 298K(1)(b) and (c) encompasses a wide range of conduct both direct and indirect. The laying of the charges exposes an employee of the Board to a potential disadvantage in his or her appointment if the charge is ultimately proven. 169 Lastly in a further document handed up at the hearing of the appeal, the appellants listed the evidence of the first appellant directed to what the first appellant was told by the four members of the second appellant. 170 It is not clear to me at least, the purpose of the provision of each of those documents. As already noted, there is no ground of appeal complaining of the trial judge's failure to reach a conclusion as to whether the respondent's request that the first appellant show cause constituted adverse action and in fact the appellants were refused leave to raise such a ground at the end of the appeal. 171 Moreover, there is no ground of appeal dealing with the evidence relating to the complaints made by the four members of the second appellant to the first appellant. The respondent has referred in its written submissions to the cross-examination of the first appellant and if the document was proffered for answering that submission it may be of some assistance. However, if the document is proffered for the purpose of raising an issue not raised in the notice of appeal then the document is of no assistance.

The respondent's submissions on appeal 172 The respondent contended that the appellants' appeal was no more than an attempt to overturn the findings of fact made by the trial judge in circumstances where there was no proper basis for interfering with those findings. 173 The respondent contended that this Court did not need to determine whether s 346(a) of the Act is limited to adverse action because of an officer's status as an officer. The respondent contended that the primary judge did not dismiss the application because he found that s 346(a) was limited to adverse action because of an officer's status as an officer, but dismissed the application because he accepted Dr Harvey's denial that she initiated the investigation and imposed the suspension for any reason associated with his Union membership, office or activities. The respondent contended that in any event the grounds of appeal do not allege that the trial judge was in error in respect of his determination as to the scope of s 346(a) of the Act. 174 The respondent also contended that the appellants could not rely upon s 346(b) for the same reason. 175 The respondent contended that whether the respondent was actuated by a proscribed reason or reasons which included a proscribed reason was a question of fact. It contended that the primary judge accepted the evidence of Dr Harvey that she did not act for a proscribed reason. That finding, it was contended, ought not be disturbed unless the appellants could demonstrate positively that the finding was plainly wrong. 176 The respondent contended the primary judge's finding was based on an assessment of Dr Harvey's credibility and as such must stand unless it can be shown that the trial judge "has failed to use or has palpably misused his advantage" or has "acted on evidence which is inconsistent with facts incontrovertibly established by the evidence" or which was "glaringly improbable": Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479. The respondent contended that there is nothing in the appellants' submissions which would allow such a finding to be made by this Court. 177 The respondent contended that the appellants' claim that the primary judge refused to have regard to relevant circumstances when assessing Dr Harvey's subjective reasons for taking adverse action was a mischaracterisation of the primary judge's reasoning. The respondent contended that the primary judge did have regard to a number of matters other than the subjective evidence of Dr Harvey and, having weighed up that evidence and her evidence, concluded that the action was not taken for a proscribed reason.

Clauses 9 and 10 of the TSMBA 178 The appellants alleged that the respondent had contravened s 346(1)(a)(ii) for the reasons mentioned in paragraphs 3 and 4 of the application. Those reasons depend upon the first appellant exercising a workplace right, being a role or responsibility under clause 10 of the TSMBA or a role or responsibility under clause 9 of the TSMBA or by participating in a process or proceeding under a workplace instrument, being a dispute settlement procedure under clause 10 or a consultation under clause 9 of the TSMBA. They are the only reasons relied upon for the 3rd and 4th claims. They are the only reasons therefore that s 361 operates upon. 179 I set out the relevant parts of the two clauses: 9. CONSULTATION IN INSTITUTE DECISION-MAKING 9.1. The parties recognise that there will be significant consultation during the period of the Agreement on matters involving implementation of this Agreement, operational and cultural change and matters affecting Employees generally or in a particular case. To this end, the parties are committed to a cooperative approach to such matters involving joint participation and consultation. 9.2. An Institute Consultative Committee (ICC) will be established within one (1) month of the commencement of this Agreement for the purpose of implementing and monitoring this Agreement. The ICC will also be the forum through which the Institute, its employees and the Union consult generally on matters affecting Employees. The Committee shall meet during ordinary hours. Time Allocations of an agreed amount additional to those provided elsewhere in this Agreement will be made from scheduled duties for employee representatives on this ICC. ... 10. DISPUTE RESOLUTION PROCEDURE 10.1. A dispute or grievance arises where an Employee on the one hand or the Employer on the other are aggrieved by a decision or action, or a failure to make a decision or act in relation to matters that arise out of, or are reasonably incidental to, matters covered by this Agreement. 10.2. The Employee has the right to seek advice from and be represented by the industrial organisation entitled to represent his or her interests at all stages of this procedure. 180 The questions in relation to the 3rd and 4th complaints is whether the first appellant was subjected to adverse action for the reason that he was exercising a role or responsibility under clause 9 or 10 of the TSMBA, or was participating in a process or proceeding under a workplace instrument being a dispute settlement procedure under clause 10 or a consultation under clause 9 of the TSMBA.

The construction of the legislation 181 The starting point in considering this appeal must be to understand the legislation upon which the proceeding before the primary judge was based but before doing so I should, because of the complaints made by the appellants, mention other matters. 182 As I have said, Chapter 3 of the Act addresses rights and responsibilities of employees, employers and organisations. 183 There is no novelty in the sections under consideration, the precursors of which first appeared in the Commonwealth Conciliation and Arbitration Act 1904 (the 1904 Act). The legislative history leading up to the immediate precursors of these sections was set out by Marshall J in Elliott v Kodak Australasia Pty Ltd (2001) 108 IR 23 at 27-30 and has been summarised by the trial judge in his reasons at [20]-[22]. 184 Chapter 3 is designed to give general protections to protect workplace rights, to protect freedom of association, to provide protection from workplace discrimination and to provide effective relief from persons who have been discriminated against, victimised or otherwise adversely affected as a result of the contravention of Part 3.1. 185 Relevantly, Division 3 of Chapter 3 provides for workplace rights and s 341 addresses the meaning of workplace rights. Section 340(1) protects a person in relation to the identified workplace rights in s 341 by making it unlawful for a person to take adverse action against that person because that person has a workplace right or has not exercised a workplace right or proposes not to exercise the workplace right or to prevent the exercise of a workplace right by that person. Section 342 identifies what amounts to adverse action and s 342(2) extends that adverse action to threatening to take action or organising such action. Division 3 is concerned solely with workplace rights and the protection given to any person in employment against any adverse action taken against them for any of the reasons in s 340(1)(a). 186 Division 4 of Chapter 3 deals with industrial activities. Section 346 makes it unlawful for a person to take adverse action against another person for any of the reasons in s 346 but, in particular in this case, because the person is or was an officer or member of an industrial association or is engaging in or has engaged in industrial activity as described in s 347(a) or (b). Section 347 identifies the industrial activity to which s 346(b) and (c) refers. Section 347 has no application to s 346(a). 187 Division 5 gives other protections to employees and makes it unlawful for an employer to take adverse action against employees because of an employee's race, colour, sex, sexual preference, age, physical or mental disability, marital status, family or carer's responsibilities, pregnancy, religion, political opinion, national extraction or social origin. 188 Division 7 provides for ancillary rules and includes ss 360, 361 and 362 to which reference has already been made. 189 Essentially, Chapter 3 constructs three separate bodies of rights for employees in the workplace. First, workplace rights in Division 3; secondly, industrial activities in Division 4; and thirdly, other protections including discrimination in Division 5. In respect of those three bodies of rights, the Act makes it unlawful for an employer to take adverse action against another person in Divisions 3 and 4 for exercising the rights given by those Divisions or in Division 5 for reasons of discrimination. 190 It would be best to address the last ground of the three grounds remaining because that requires a consideration of the proper construction of s 340 and s 346 of the Act. 191 The contention which was put on appeal, and also at trial, was that in the construction of s 340 and s 346, no element of subjective contention is specified in the sections or required to be shown: see paragraph 29 of the submissions of the appellants. The appellants concentrated their argument on s 346. 192 The appellants contended that the ultimate question was why did the appellant take the adverse action and that would be answered by reference to the relevant circumstances and would not be determined by reference to the subjective reasons held by the decision maker. In particular, it was argued that the primary judge focussed exclusively on the reasons given and subjectively held by the decision maker "and the credibility of that reason distracts from the real issue". 193 In my opinion, the appellants' contention in relation to the construction of s 340 and s 346 should be rejected. 194 Both sections are in the same form. They both proscribe conduct "because" the other person, as in the case of s 340, has a workplace right or is, as in the case of s 346, an officer or member of an industrial association or a person engaged or who proposes to engage in an industrial activity. The conduct which is proscribed in both sections is the taking of adverse action because of any of the matters in s 340(1)(a) and s 346. The two sections must be read in the context of the Act as a whole: K & J Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 157 CLR 309 per Mason J at 314; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 381. 195 If an employee alleges that the employee's employer took the action for a particular reason the employer has the onus of proving otherwise: s 362. Sections 340 and 346 therefore have to be considered in the light that the simple allegation that the employer took the particular action for an impugned reason will be enough to prove the employee's case unless the employer proves otherwise. The employer will not discharge that onus by proving that the employer took the adverse action for a number of reasons which include the proscribed reason or reasons because s 360 would then be engaged. The employer must therefore prove that the employer took the adverse action for a reason or reasons that did not include the impugned reason. The onus is to be discharged on the balance of probabilities: General Motors Holden Pty Ltd v Bowling (1976) 12 ALR 605 at 612-5. 196 In considering the context in which ss 340 and 346 are to be considered, reference must also be made to s 362. Section 362 provides that if a person advises, encourages or incites or takes any action with intent to coerce another person to contravene a provision of Part 3.1, the first person will be taken to have contravened the provision. 197 The purpose of the two provisions is to protect persons from taking adverse action against another person for any of the reasons in the two sections. In any case, where it is alleged that a person took adverse action for any of the particular reasons identified in s 340(1)(a) or s 346, the inquiry must be as to why the person who is said to have contravened the section took the action. That must mean that the Court has to inquire into the subjective intention of the alleged contravenor. A person's reasons for taking adverse action cannot be ascertained by employing an objective test. Those reasons can only be identified by reference to the person's own intentions. 198 The alleged contravenor will, if it is alleged that he or she took action for an impugned reason, need to give evidence to escape a finding of contravention that the adverse action was taken for a reason other than that alleged. If the alleged contravenor is believed by the Court as to why the adverse action was taken, the proceeding will fail. If, of course, the alleged contravenor is not believed and the Court finds that the adverse action was taken for the particular reason alleged, the Court will find a contravention. The Court however will not consider the alleged contravenor's evidence in a vacuum before deciding whether the evidence should be accepted. Like in any case the evidence will be considered with all the other evidence in the case. But if in the end the evidence is accepted, then the alleged contravenor will have discharged the onus thrust upon him or her by s 361. 199 In the end, the question for the Court is what was the reason for the person to take the adverse action. The subjective intention of the alleged contravenor if accepted by the Court to be the actual intention will be determinative. That construction is consistent with the reasoning of the High Court in Purvis v State of New South Wales (Department of Education and Training) (2003) 217 CLR 92. The appellants' argument that the use of the word "because" rather than the expression "for the reason that" as had been used in previous legislation means that the Parliament opted for an objective test rather than a subjective test must be rejected for two reasons. First, because the difference in the words themselves do not have such a result. The use of the word "because" does not bring about the result that the test is objective. An objective test would be simply inconsistent with the Ancillary Rules in Division 7 of the Act and, in particular ss 360, 361 and 362 of the Act. Secondly, the drafter has used the word "because" as a modern form of drafting. 200 The reason for the taking of the adverse action must be one of the matters in both sections before the conduct contravenes either section. The person's reasons for taking the adverse action will engage the sections if those reasons are the proscribed reasons in those sections. 201 The construction of the sections which I favour does not make the sections unworkable. Ordinarily it would be very difficult for a person who is the victim of adverse action to establish the precise reasons why the adverse action was taken against that person. However, as already noted, s 361 reverses the onus of proof and if a person alleges that a person has taken action for a particular reason, and that reason would constitute a contravention, it is presumed that the action was taken for that reason unless the person who took the action proves otherwise. Thus, in this case, it fell upon the respondent and, in particular, Dr Harvey, to satisfy the onus thrust upon the respondent by s 361 to establish the reason or reasons why she took the adverse action which she did. 202 The construction at which I have arrived does not mean that the person who has taken adverse action can simply claim it was taken for a reason apart from a reason in s 340 or s 346 and that that is the end of the matter. The Court will have to be satisfied to the requisite standard that the person claimed he or she took the adverse action for a reason which would not amount to a contravention of the section. In assessing whether or not the persons' evidence ought to be accepted, the Court will no doubt have regard to all of the facts and circumstances surrounding the taking of the adverse action to determine whether or not the reason which is claimed to be the reason for taking the adverse action is truly stated.

The grounds of appeal 203 The primary judge's reasons must be understood having regard to the contentions which were put by the appellants' counsel at trial. 204 His Honour identified the submission which was put at trial in [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. 205 His Honour identified the first contention as the primary contention which he said had to be rejected because it was contrary to the legislative history, relevant principles of statutory construction and authority. By that his Honour was rejecting the contention that the actor's subjective reason for taking the prejudicial action was wholly irrelevant and was not to be taken into account. 206 His Honour considered the legislative history. He considered the context in which s 340 and s 346 were found. He referred to explanatory memoranda. He considered the decision of the High Court in Purvis v The State of New South Wales (2003) 217 CLR 92 where the High Court dealt with the construction of s 5(1) of the Disability Discrimination Act 1992 (Cth). 207 He then identified the test to be considered at [34]-[35]: 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. 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. 208 In my opinion, his Honour's approach was correct. The question is why was the adverse action taken? That question will be answered by reference to the subjective intention of the decision maker. Ordinarily the decision maker will have to give evidence as to the reason or reasons why the adverse action was taken. If the decision maker's evidence having regard to "established facts" is accepted, then the decision maker will have discharged the onus imposed upon the decision maker by s 361 of the Act. 209 The appellant contended that his Honour's reasons concentrated upon the subjective intention of Dr Harvey to the exclusion of any other evidence and that the primary judge did not weigh up the evidence led on behalf of the appellant concerning his role and the fact that each of the acts done by the appellant were acts done in his capacity as an officer in determining the reliability of Dr Harvey and the credibility of her evidence. In my opinion, that contention cannot be accepted. At some stage his Honour had to consider and analyse the evidence of Dr Harvey. That is what he did in that part of his reasons which are sought to be impugned. It cannot be said that he ignored the evidence which was led which was relevant to a consideration of Dr Harvey's reliability and the credibility of her evidence. 210 In my opinion, ground 5 must be dismissed. 211 There is one other matter of construction relating to s 346, and in particular paragraph (a), which needs to be addressed having regard to the appellant's contention. 212 The appellants contended that s 346(a) is not limited to adverse action because of an officer's status as an officer and should not be read down by reference to "the industrial activities" referred to in s 346(b). The appellants contended that s 346(a) extends to adverse action because the officer has carried out ordinary activities as an officer or has taken an action as an incident of holding or exercising his or her powers or duties as an officer. 213 In my opinion, that contention is contrary to the proper construction of s 346(a). 214 There is in my opinion no warrant for reading s 346(a) in the way contended for by the appellants. Section 346(b) addresses the circumstances which the appellants contend s 346(a) addresses. The decision maker who takes adverse action against another person simply because that person is an officer or member of an industrial association without that person doing anything further contravenes s 346(a). It is not necessary that the decision maker takes that action because the officer or member of an industrial association has done or not done something. The contravention of s 346(a) merely requires a decision maker to take action because the person against whom the action is taken is an officer or a member of an industrial association. 215 If the decision maker takes action against an officer or member of an association because that person engages in or proposes to engage in industrial activity, then that will be a contravention of s 346(b). But for s 346(a), the impugned reason is simply because the person against whom the adverse action is taken is an officer or member of an industrial association. 216 The surrounding circumstances will be relevant in assessing whether the employer took the action because the employee was an officer or member of an industrial association. Those circumstances will be relevant to determine whether an employer's evidence that action was not taken for that reason should be accepted but in the end result the question which has to be addressed is whether the action was taken because the employee was an officer or a member of an organisation and not because the employee did or did not do something as an officer or a member of an organisation: General Motors Holden Pty Ltd v Bowling (1977) 12 ALR 605 per Mason J at 621-623. 217 I agree with the reasons of Dowsett J in Harrison v P T Tube Mills Proprietary Limited (2009) 181 IR 162 who said at 232 when describing a precursor to this section: To the extent that this implies that s 793(1)(a) addresses conduct as well as union membership or standing as an officer or delegate, it is inconsistent with the observations made by Mason J in Bowling. Unfortunately, it seems that neither his Honour nor Marshall J was referred to that decision or to the decision of Merkel J in Ansett. I proceed upon the basis that ss 792(1)(a) and 793(1)(a) proscribe dismissal because of union membership or status as an officer or delegate, but not because of conduct. However conduct is relevant to the question in the way explained by Mason J in Bowling. 218 An employer will only contravene s 346(a) of the Act if an employer takes adverse action against a person who is an officer or member of an industrial organisation because the person is a member or officer of an industrial organisation. 219 The appellants' contention that s 346(a) should be read in the way contended for the appellants because of the provisions of s 351 must be rejected. Section 351 proscribes conduct by an employer against a person who is an employee for any of the reasons given in s 351(1). Section 351(1) does not support a contention that s 346(a) should be read in the manner contended for by the appellants. 220 Grounds 1 and 4 largely raise factual issues. 221 The appellants did not either in argument or in the notice of appeal challenge the findings of fact made by the primary judge. The appellants' argument was said to rest on those findings. 222 The primary judge found that Dr Harvey did not take adverse action because the first appellant was a member or officer of an industrial organisation, nor did she take adverse action because the first appellant was engaged in industrial activity. 223 The appellants contend that because the trial judge found that one of the reasons for the adverse action was that Mr Barclay "failed to bring serious allegations to the attention of senior managers" meant that the trial judge had to find that the first appellant was engaged in an industrial activity, namely representing or advancing the interests of the AEU and its members by respecting members' requests for confidentiality and protecting them from exposure to prejudicial retaliatory action by the employer. In those circumstances, because of those uncontested facts and findings, it was put the respondent contravened s 346(a) and s 346(b) by taking adverse action against Mr Barclay because he was an officer and because he engaged in industrial activity. 224 The first submission can be disposed of quickly. On the construction of s 346(a) of the Act which I favour, the respondent and Dr Harvey would have contravened the section if Dr Harvey had taken the adverse action simply because the first appellant was a member or officer of the AEU. Her evidence and the primary judge's finding, both of which are not challenged on appeal, is that she did not take that adverse action for that reason. That disposes of the appellants' argument that the respondent contravened s 346(a). 225 The appellants' argument that there was a contravention of s 346(b) also should be rejected. The respondent and Dr Harvey would have contravened s 346(b) if Dr Harvey had taken the adverse action against the first appellant because the first appellant was engaging in industrial activity within the meaning of s 347(a) or (b) of the Act. 226 She took the adverse action because, as the primary judge has found, his conduct provided "prima facie evidence of a breach of the Code of Conduct and his obligations as a (BRIT) employee". She also took the adverse action because as she said in evidence and the the primary judge has accepted, "I was of the view that the allegation against him was serious and I was concerned if Mr Barclay was not suspended he might cause further damage to the reputation of the (BRIT) and of the staff in the BRIT". Neither of those reasons for taking adverse action amounts to a contravention of s 346(b). First, she did not take the adverse action because the first appellant was engaging in the industrial activity referred to in s 347(a) by becoming or remaining or ceasing to be an officer or member of an industrial association. Nor in my opinion was the first appellant engaged in industrial activity in any of the senses referred to in s 347(b). Dr Harvey did not, as the appellants contend, take the adverse action because the first appellant was engaged in representing or advancing the views, claims or interests of an industrial association. Whilst he might have been doing that at the time that she took the adverse action, that was not the reason why she took the adverse action. She took the adverse action as the primary judge has found for the reasons to which I have referred. Those reasons are not challenged on appeal and were accepted by the primary judge. Absent any challenge to those reasons or a challenge to the primary judge's findings, the appellants cannot make out a contravention by the respondent or Dr Harvey of s 346(b). 227 It is not enough as the appellants have contended that a union official can make out a contravention by simply establishing that adverse action was taken whilst the union official was engaged in industrial activity. That is not enough to establish the contravention. The contravention is only established if in fact that is the reason for the taking of the adverse action. 228 In my opinion, the first ground is not made out. 229 As to the fourth ground, the appellants accept that the primary judge's finding that Dr Harvey acted for the reasons which he gave was a finding of fact. However, the appellants contend that his Honour's holding that Dr Harvey "did not act for a proscribed reason" is a conclusion of law. 230 The appellants contend that the Court "should allow the appeal if, in coming to that conclusion, the learned trial judge proceeded on a wrong principle, or failed to appreciate the weight or bearing of established circumstances or that the conclusion is clearly wrong on grounds which do not merely depend on credibility". 231 The appellants contend that the established circumstances were that Mr Barclay had received complaints from members in his capacity as an officer of the AEU and he was asked not to reveal to management the names of the members who made the complaint and, in his union capacity, forward an email to members of the AEU employed by BRIT. Accepting that they are the established circumstances, that does not lead to the conclusion that his Honour was wrong to conclude that Dr Harvey and the BRIT had not contravened the Act. 232 The appellants cannot avoid the consequences of the findings made by the primary judge. Those findings are that Dr Harvey was not motivated by any of the proscribed reasons to take the adverse action she did. It may be, as I said in relation to ground 1, that at the time the first appellant was engaged in some sort of industrial activity, although that is an assumption which was not proved, but that does not mean that taking adverse action against him amounts to taking it for the reason that the first appellant was engaged in that industrial activity. 233 In my opinion, this ground should also be dismissed. 234 The appellants contended that the finding by the primary judge that one of the reasons taken by Dr Harvey for the adverse action was because the first appellant had failed to bring serious allegations to the attention of senior management amounted to a contravention of s 346(a). In my opinion, that is not correct. Dr Harvey did take the adverse action which the respondent admitted for a reason which included the reason that the first appellant had failed to bring serious allegations to the attention of senior managers. That reason is not a contravention of s 346(a). As I have attempted to explain, s 346(a) is engaged if a person takes adverse action against another person simply because that other person is an officer or member of an association. The reason which Dr Harvey gave is not such a reason and does not include such a reason: s 360. 235 The facts found by the primary judge do not lead to the conclusion contended for by the appellants that there had been a contravention of s 346(a). Nor does the primary judge's finding of that reason submitted by Barclay mean that there has been a contravention of s 346(b). 236 The appellant's 3rd and 4th claims relied upon contraventions of s 340(1)(a)(ii) of the Act for exercising the workplace rights identified in those two claims. Again, in my opinion, the primary judge's findings in relation to Dr Harvey's reasons for taking the action that she did are decisive but there are further reasons for concluding that Dr Harvey did not take the action for the impugned reason other than her own evidence. 237 A person will contravene s 340(1)(a)(ii) if the person takes adverse action against another person because that person is exercising a workplace right. That will include circumstances where the person against whom the action is taken has a role or responsibility under a workplace law or instrument or the person is able to initiate or participate in a process or proceeding under the workplace law or instrument. 238 Clause 9 enjoins the parties to involve themselves in joint participation and consultation. There is no suggestion that clause was engaged by anything done or not done by the first appellant. There is no real suggestion that Dr Harvey took the action she did because of anything connected with clause 9. Insofar as clause 9 was the basis for the appellants' 3rd and 4th claims, the claims had to fail. 239 Clause 10 refers to an employee having the right to seek advice from an industrial organisation in circumstances where a dispute or grievance arises and the employee is aggrieved by a decision or action or failure to make a decision or action or act in relation to matters that arise out of matters covered by the agreement. Pursuant to that agreement, an employee is entitled to approach the first appellant to discuss any workplace grievance to obtain the first appellant's advice in relation to how the matter or the issue should be resolved. There was no evidence however that anyone sought the first appellant's advice in relation to any issue, including the issue which the first appellant raised in his publication in relation to documents which were to be subject to the audit. 240 Although the first appellant's evidence was that he had been approached by members who advised him that there were such documents in existence, there was no evidence that those members approached him in a way that would have engaged clause 10 of the agreement. 241 But even more particularly, there is no evidence that Dr Harvey knew that anyone had approached the first appellant in circumstances where clause 10 would have been engaged. In those circumstances, there was simply no evidence to contradict Dr Harvey's own evidence that she did not act for any of the reasons alleged in claims 3 or 4.

Conclusion 242 I agree with the reasoning of the primary judge and the conclusions which he reached. 243 The appeal should be dismissed. I certify that the preceding one hundred and sixty (160) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lander.