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.