The reasoning of the primary judge
33 It is necessary to keep Barclay in mind when considering whether or not the primary judge in the present case erred as the appellant maintains.
34 The primary judge's findings can only be understood in the context of the circumstances of the case. His Honour set out the background to the events that led to Mr Doevendans' dismissal in the following three paragraphs: see Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (No 3) [2012] FCA 1218 ('Primary Judgment') at [9]-[11].
In 2011 and 2012, [BHP Coal] and its employees were engaged in negotiations for the making of a new enterprise agreement to apply to [BHP Coal's] operations at seven coal mines in Queensland. In about mid-2011, the employees commenced to take protected industrial action in support of their position in these negotiations. … At the Saraji mine, the protected action was in the form of stoppages of work and overtime bans. Between 1 July 2011 and 6 May 2012, there were 15 whole-shift stoppages and one half-shift stoppage in which Mr Doevendans participated. He also participated in the imposition of overtime bans on a number of occasions from July 2011 to the date of the termination of his employment. Additionally, and of particular relevance to the present proceeding, there was a seven-day stoppage of work from 15 to 22 February 2012. However, Mr Doevendans himself was not rostered for work at that time.
From August 2011, during the longer stoppages at the Saraji mine the committee of the Lodge organised for members employed at the mine, and supporting members of the community, to participate in protests near the entrance to the mine. The protesters usually stood on one or both sides of the entrance road to the mine, along which BMA had set up water barriers about three metres back from the road. The protesters stood behind these barriers, and, by the display of signs and other means, conveyed to those who passed along the road various indications of their position in the negotiations. …
The present case is concerned with such a protest which occurred during the stoppage of work over the period 15-22 February 2012. The equipment and paraphernalia required by the protesters was taken to the protest site in a trailer purchased some time previously by the Lodge. That included tents, barbeques and signs. There were two sizes of signs: 10.9 m x 1.2 m, and 1.2 m x 1.6 m. The wording on the various signs included "Families together families forever"; "This is a community not a camp"; "BMA Charter Values Profits before people"; "BHP throwing women and children overboard for FIFO rosters = profit"; "No 7 On 7 Off"; and "BHP destroying communities and families for FIFO roster = profit". The signs also included one as follows:
No principles
SCABS
No guts
The writing on this sign ("the scabs sign") was in black on a white background, save that the word "SCABS" was in red. At the protest in February, there were four signs with this wording on them. According to the evidence of Mr Doevendans, the signs were usually held up by those participating in the protest whenever a car passed along the entrance road. The protesters made sure that the signs were being used, such that, if one of them put a sign down, someone else would pick it up.
35 In March 2012, Mr Greg Hamilton, the Manager - Human Resources, at the mine investigated an allegation that Mr Doevendans had displayed and waved the scabs sign whilst participating in the protest between 15 and 22 February 2012: Primary Judgment at [13]. As a result of the investigation, Mr Hamilton considered that "he had sufficient information to place before Mr Doevendans allegations that he had, at various times on 16, 17 and 19 February 2012, held up and waved the scabs sign at vehicles passing along the entrance road to the mine"; and he informed Mr Brick of this in late March 2012: Primary Judgment at [14]. A letter was sent to Mr Doevendans, signed by Mr Brick, setting out various allegations against him and concluding that "[i]t is alleged that the conduct described above breaches the BMA Workplace Conduct Policy, BMA's Charter Values and expected workplace behaviours": Primary Judgment at [15].
36 Mr Doevendans, his union representative, Mr Brick and Mr Hamilton met on 12 April 2012 and twice on 4 May 2012: Primary Judgment at [16], [19] and [24]. The primary judge stated that Mr Doevendans' unchallenged evidence was that, when they first met on 4 May 2012, he said that "he had attended the protest in late February 2012, and that it was likely that he had held up the scabs sign"; and that his employer "was not permitted to take disciplinary action against him for his conduct at the protest": Primary Judgment at [19].
37 Mr Brick took time to consider the matter, including Mr Doevendans' responses to the allegations against him. According to the primary judge (at [22]):
Mr Brick was satisfied that Mr Doevendans' conduct was connected with work, intentional, deliberate, repeated, "deviant" (in the sense that Mr Doevendans admitted that he knew that the word "scab" was inappropriate in the workplace, but nevertheless deliberately and repeatedly held and waved the scabs sign), offensive, humiliating, harassing and intimidating, unacceptable as an employee of the respondent, flagrantly in violation of the charter and conduct policy of [BHP Coal] and contrary to, and not tolerated in, the culture that he (Brick) had developed at the Saraji mine. Mr Brick asked himself whether an individual that had displayed "such deliberate, intentional, repeated and blatant disregard for the charter and conduct policy could be rehabilitated into the culture" that he was developing at the mine. Mr Brick "feared that Henk Doevendans' employment would not be able to be salvaged".
A further letter, signed by Mr Brick, was handed to Mr Doevendans at the later meeting on 4 May 2012. Mr Doevendans handed Mr Brick a letter to him from the relevant Lodge of the CFMEU over the hand of Mr KB Ingrey, Vice-President: Primary Judgment at [24]. Mr Ingrey sent Mr Brick a further letter on 11 May 2012. In this letter, Mr Ingrey noted that Mr Doevendans denied "that he was engaged in any conduct which constitute[d] misconduct making him liable for disciplinary action".
38 At this point, it is most useful to set out the primary judge's own account and findings. His Honour wrote (at [28]):
In the days which followed, Mr Brick gave consideration to Mr Ingrey's letter of 11 May 2012, and to Mr Doevendans' situation generally. On 17 May 2012, Mr Hamilton advised him that he could not postpone a decision on the matter any longer. Mr Brick agreed that that was the case. Under the agreement which then existed, there were four steps, of increasing severity, that might be taken in relation to an employee for conduct which required disciplinary action. The third step was a final warning, and the fourth step was "disciplinary action, which is commensurate with the severity and/or frequency" of the conduct in question. Mr Hamilton expressed the view to Mr Brick that it was appropriate to terminate Mr Doevendans' employment. Mr Brick, however, was also giving serious consideration to action under the third step of the disciplinary process, that is to say, to the issuing of a final warning. Referring to the respondent's "just culture decision tree" as the "JCDT", in his affidavit read in the present case, Mr Brick said:
As I went through the JCDT, the only considerations that were in my mind as reasons why I might land on Step 4 were as follows:
(a) Henk Doevendans had held and waved a sign with the word 'scab';
(b) This was not an isolated incident, as he had held and waved the Scab Sign on four occasions over three days;
(c) He had a choice of signs in the protest area, but deliberately and repeatedly held and waved the Scab Sign;
(d) He admitted to the allegations about his conduct;
(e) He acknowledged that he knew his conduct was inappropriate and contrary to the Charter and Conduct Policy;
(f) I understood that he did not accept that he had done anything wrong; and
(g) I doubted whether he was capable of being rehabilitated to the just culture I was developing and had developed at the Saraji Mine.
These considerations left me with the powerful impression that that termination was the only appropriate outcome. I asked myself 'do I want an individual at Saraji Mine who has demonstrated a lack of contrition, low potential to change or modify his behaviour and who is unwilling to learn any lesson from this incident?'. My answer was 'no'. This confirmed to me that Step 4 termination rather than a Step 3 was the appropriate disciplinary outcome.
....
My decision depended on my assessment that all of the following factors were present:
(a) Connection with work;
(b) Use of the word 'scab';
(c) Intentional behaviour. This was not an isolated case where he had accidentally picked up the Scab Sign on one occasion;
(d) Deliberate behaviour, as he chose to hold and wave the Scab Sign in circumstances where a range of signs were available;
(e) Repeated behaviour, as he had held and waved the Scab Sign on four occasions over each of 16, 17 and 19 February 2012;
(f) Deviant behaviour, as he admitted that he knew the word 'scab' was inappropriate in the workplace but nevertheless deliberately and repeatedly held and waved the Scab Sign;
(g) Offensive, humiliating, harassing and intimidating behaviour;
(h) Behaviour that was unacceptable in the workplace and not tolerated by [BHP Coal];
(i) Flagrant violation of the Charter and Conduct Policy;
(j) Completely contrary to the culture I had developed and was continuing to develop at the Saraji Mine;
(k) No contrition or acknowledgement that his behaviour was inappropriate;
(l) His behaviour was unlikely to change and he was unlikely to be able to be rehabilitated to the culture I had developed and was continuing to develop at the Saraji Mine;
(m) His defensive and arrogant demeanour during my meetings with him on 12 April 2012 and 4 May 2012; and
(n) The fact that I had personally heard him admit to the allegations about his conduct. This made a powerful impression on my final decision.
If any one or more of these factors had not been present, I may have come to a different decision. For example, if it had been an isolated occasion of having held the Scab Sign on a single occasion, even if the employee had not of shown any contrition, I may not have landed on a Step 4. However, this was not the case here, as Henk Doevendans had not only failed to demonstrate any contrition, but also, his conduct was repeated and deliberate. This was not a case of mistake or accident.
(Emphasis added.)
39 The upshot was that Mr Brick decided that Mr Doevendans' employment should be terminated and he gave effect to that decision by letter to Mr Doevendans dated 21 May 2012: Primary Judgment at [29]. The primary judge specifically noted (at [30]) that:
Mr Brick said that, in his decision to dismiss Mr Doevendans, the fact that he was a health and safety representative, and the Vice-President of the Lodge, "entered and operated in my mind only to the extent that I was conscious that because of his standing in these positions, any decision I made to take any disciplinary action against him would be controversial". In other respects, he said that Mr Doevendans' occupation of those positions, and the fact that he was engaged in industrial action or activity, did not play any part in his decision-making process.
As the surrounding context of the primary judge's remarks make clear, Mr Brick's statement that Mr Doevendan's engagement in industrial activity did not play a part in his decision, related to the stop-work, overtime bans and protest activity then taking place in support of the union's position in the negotiations for a new enterprise agreement.
40 The primary judge noted and accepted that "[o]ne of the circumstances which influenced Mr Brick's decision to terminate Mr Doevendans' employment was that referred to in item (m) in the list of factors upon which his decision depended …, namely, that he (Doevendans) displayed a "defensive and arrogant demeanour" in the meetings on 12 April and 4 May 2012." Primary Judgment at [31].
41 It is clear that the primary judge accepted Mr Brick's evidence as to why he decided to terminate the employment of Mr Doevendans. His Honour expressly stated that he accepted that evidence. In particular at [36], the primary judge said:
I accept the evidence of Mr Brick as to why he decided to terminate the employment of Mr Doevendans - see paras 28-31 above. His reasons, broadly, were that Mr Doevendans had held up, and waved at passing motorists, the scabs sign, which he, Brick, regarded as having the unacceptable attributes to which I have referred in para 22 above, that this was in contravention of the respondent's policy, the provisions of which Mr Doevendans was aware, and that Mr Doevendans had demonstrated arrogance when confronted with the objections to his conduct. Having engaged in conduct which Mr Brick regarded not only as contrary to the policy, but as antagonistic to the culture which he was seeking to develop at the mine, Mr Brick ultimately came to the view that he had to dismiss Mr Doevendans. The dismissal was not a spur-of-the-moment reaction, as some dismissals are. It followed an investigation by Mr Hamilton, and a systematic consideration of the facts, organised by reference to the respondent's procedure in such matters. Further, each stage of the procedure was substantially documented by correspondence. In all of this, there is nothing which provides a basis for doubting that Mr Brick's reasons for acting were just as he said they were.
42 The primary judge clearly and specifically dismissed various of the CFMEU's allegations as to Mr Brick's unlawful motivations. At [37]-[41], the primary judge stated:
Neither is there anything in the background to the events of 15-22 February 2012 that would justify the inference that the respondent wanted to be rid of Mr Doevendans on account of his membership of the applicant, his position on the Lodge committee, or his history of union activity. There was no evidence that Mr Doevendans had been an especially troublesome union representative, for example. I accept that he was well-known to BMA management because of his position on the Lodge committee, but there was nothing in the evidence to suggest that the respondent did not accept Mr Doevendans' role as a conventional one, representing, along with others on the committee, the applicant's members at the mine. The mine was a heavily, and traditionally, unionised workplace, and there was no suggestion that the respondent was not content with the representative role which Mr Doevendans, and others in like positions, performed in that regard.
The applicant's case that Mr Brick's real reasons for dismissing Mr Doevendans were not as he stated was a highly inferential one. The truth of the matter was, however, that the primary facts did not favour the inference which I was invited to draw over Mr Brick's denials. So far as I can gather from the cross-examination of Mr Brick and Mr Hamilton, the applicant would have it that Mr Brick dismissed Mr Doevendans because he wanted to make an example of him as an official of the Lodge in an environment in which the respondent was in earnest disputation with its workforce over the terms of the new enterprise agreement. Mr Brick denied that suggestion, as did Mr Hamilton. Their denials were unhesitating and convincing; and they were consistent with the evidence generally. I accept those denials.
The applicant also submitted that I should be reluctant to accept Mr Brick's evidence for two particular reasons. The first was that the respondent appeared to have no difficulty with the visible presence of the scabs sign at the protest, so long as no-one was holding it, such as when it was propped against the barriers behind which the protesters were standing. I would not accept that premise: on an earlier occasion when the scabs sign had been in use, the respondent had made it clear to the Lodge or the Branch that the message conveyed by the words on the sign was not such as should be conveyed in the circumstances obtaining. The applicant's officials concerned had made it clear that they considered that their members had the right, outside the mine lease, to convey such messages as they chose. So the matter was not resolved: the respondent objected to the scabs sign, and the Lodge knew that, while the Lodge asserted the right to use the scabs sign, and the respondent knew that. What the respondent should have done about the appearance of the scabs sign at the protest, absent a situation in which someone was actually holding it, was not the subject of attention in the applicant's submissions. The fact that the respondent did nothing about it does not, in my view, reflect adversely upon Mr Brick's credibility insofar as he stated his reasons for acting against a particular employee who was known to have held, and waved, the sign.
The second reason was that, according to written records of observations made by solicitors engaged by the respondent, the respondent did know that, in the period 15-22 February 2012, the scabs sign had been held up by other people on the protest, yet no disciplinary action had been taken against them. It was submitted on behalf of the applicant that this showed that Mr Doevendans had been selected for dismissal, the reason for which must have been something other than the mere fact that he held up the sign. However, as Mr Hamilton pointed out in his evidence, it had not been possible for the respondent to identify the other people who had held up the sign. They were identified in the solicitors' reports by reference to their clothing (eg "a man in a straw hat"), and this was found to be insufficient to place names beside the people concerned. In this respect, it is not irrelevant that the protest was not confined to employees of the respondent. The evidence was that, over the whole of the relevant period, the only protester established to have held up the scabs sign and positively identified was Mr Doevendans. He was not, therefore, selected from a range of known people who had been observed to hold up the sign.
For the above reasons, I reject the applicant's case that Mr Brick dismissed Mr Doevendans for reasons other than those given by him in his evidence. There was no inferential case, based on the objective facts as a whole, that was to any extent inconsistent with that evidence.
43 The primary judge also accepted Mr Hamilton's evidence as to his reasons for advising Mr Brick that it was appropriate to terminate the employment of Mr Doevendans. At [42] of the Primary Judgment, his Honour also said:
The applicant's inferential case against Mr Hamilton was really the same as its case against Mr Brick, and I would reach the same conclusion in respect of it. There is nothing in the evidence that would provide a basis for doubting that Mr Hamilton's reasons were as he said they were.
44 Having made these factual findings, his Honour turned to the question whether they "provide[d] a basis for the [CFMEU's] case that Mr Doevendans' dismissal was done in contravention of ss 340 or 346 of the [Fair Work Act]". The case sought to be made by reference to s 340 was shortly rejected (at [45]-[49]) and is of no present concern.
45 The primary judge also rejected the case sought to be made by reference to s 346(a) of the Fair Work Act in terms consistent with Barclay and Bowling, both discussed above. In particular, at ([54]), his Honour said:
In the present case, Mr Doevendans' display of the scabs sign had a connection with his membership of the applicant in the sense that, absent that membership, Mr Doevendans may not have displayed the sign. Indeed, he may not have been on the protest at all. Displaying the sign was not a necessary incident of his membership, but there is a sense in which he chose to make it such an incident. That, however, is not the realm of s 346(a). I find nothing in the facts of the present case to justify, or even to provide any support for, the inference that, because Mr Doevendans displayed the scabs sign, his membership of the applicant was a reason for his dismissal. In the mind of Mr Brick (and, to the extent relevant, of Mr Hamilton), Mr Doevendans' use of the scabs sign, as such, was objectionable. That circumstance did not feed back into some train of thought by him which was based on Mr Doevendans' membership of the applicant. The fact of that membership was no part of Mr Brick's reasons for dismissing Mr Doevendans.
See also [79]. His Honour went on to find (at [59]-[76]) that Mr Doevendans was neither an officer of the CFMEU, nor of the Branch; and further the Lodge (of which he might be said to be an officer holder) was not an industrial association.
46 The primary judge did not, however, reject the case sought to be made by reference to s 346(b) of the Fair Work Act: see Primary Judgment at [114]-[115]; [123]-[124]. Instead his Honour held (at [115]) that:
Mr Doevendans' holding and waving of the scabs sign was conduct by way of participation in a lawful activity organised by an industrial association. Since a reason for his dismissal was that he did so hold and wave the sign, it follows that his dismissal was done in contravention of s 346(b) of the FW Act.
Further, his Honour held (at [124]) that:
[I]n displaying the scabs sign at the protest, Mr Doevendans was representing and advancing the views and interests of an industrial association. Since he was dismissed for that conduct, it follows that the dismissal was done in contravention of s 346(b) of the FW Act.
The critical question is whether these findings involved a course of reasoning precluded by the High Court in Barclay and Bowling.
47 As his Honour noted, the first limb of the CFMEU's case under s 346(b) was that Mr Doevendans was dismissed because he participated in a lawful activity organised or promoted by an industrial association (s 347(b)(iii)). As his Honour noted, it was common ground that the CFMEU was an industrial association and that Mr Doevendans was a member of it: Primary Judgment at [50]. Rejecting a submission made by BHP Coal to the effect that the "activity" for this purpose was the display of the scabs sign, the primary judge held that "the general protest was … an activity in the statutory sense": Primary Judgment at [85]. His Honour continued (at [85]):
If there is a reasonably available characterisation of the events which falls within the statute, the respondent's reason for dismissing Mr Doevendans must be considered by reference to that characterisation. On the facts of the present case, I would hold that the protest was the relevant activity, and that Mr Doevendans' display of the scabs sign was conduct on his part by way of participation in that activity.
48 The primary judge next considered and accepted the CFMEU's submission that the protection of s 346 would cover Mr Doevendans in participating in the protest, even if the form of his participation (displaying the scabs sign) was unlawful: see Primary Judgment at [86]-[90]. This was notwithstanding that predecessor provisions to s 347(b)(ii) and (iii), such as s 793(1)(o) of the Workplace Relations Act 1996 (Cth), required that the 'act or thing' for which the employee was dismissed was lawful: Primary Judgment at [87]. His Honour held that "the protest at the entrance to the Saraji mine" was lawful and that the display of the scabs sign was not unlawful (as contrary to s 6(2)(a)(ii) of the Summary Offences Act 2005 (Qld) or for the purposes of s 346(b) of the Fair Work Act): Primary Judgment at [90], [96], [103]-[104], [106]-[108]. His Honour also held that the organization and promotion of the protest was the doing of an industrial association - the CFMEU: see Primary Judgment at [114]. Having reached this point, his Honour concluded that Mr Doevendans' dismissal was in breach of s 346(b) of the Fair Work Act (as set out at [115] and reproduced at [31] above).
49 The second limb of the CFMEU's case under s 346(b) was that Mr Doevendans was dismissed because he represented or advanced the views, claims or interests of an industrial association (within s 347(b)(v)). In order to succeed on this limb, his Honour observed (at [117]):
For the applicant to succeed, the conduct so identified must be that for which he was dismissed: that is to say, there must be an identity between the reason for his dismissal and the specific industrial activity in which he engaged. Here, Mr Doevendans was dismissed for holding and waving the scabs sign. He was not dismissed for taking part in the protest in other respects. That his participation in the protest may have constituted the representation or advancement, by him, of the views, claims or interests of an industrial association is, therefore, not presently to the point. The only question is whether the holding and waving of the scabs sign had that character.
50 His Honour concluded that, in displaying the scabs sign at the protest, Mr Doedevans was representing and advancing the interests of the Branch, and therefore of an industrial association, in relation to its negotiations with the respondent over the proposed new enterprise agreement: Primary Judgment at [122]-[124]. The primary judge concluded (at 123]):
[T]he Branch had the conduct of the negotiations, and had a direct and obvious interest in their prosecution to a successful conclusion. It could scarcely be gainsaid that it was in the interests of the Branch that such industrial action as was taken in support of its position in the negotiations should be as effective as possible. By doing his part in prevailing upon workers at the Saraji mine not to continue working, thereby compromising, to some extent at least, the effectiveness of the industrial action, Mr Doevendans was representing and advancing the interests of the Branch in its negotiations with the respondent.
51 Accordingly, his Honour found that, because Mr Doevendans was dismissed for displaying the scabs sign at the protest, Mr Doevendans' dismissal contravened s 346(b) of the Fair Work Act.
52 As French CJ and Crennan J said in Barclay at [5], the task of the court in such a case as this is "to determine, on the balance of probabilities, why the employer took adverse action against the employee, and to ask whether it was for a prohibited reason or reasons which included a prohibited reason". As the reasons of the primary judge indicate, this task is far from straightforward.
53 In this case, in conformity with Barclay and Bowling, the primary judge had regard to the evidence of the decision-maker, Mr Brick, and, as stated earlier, accepted the evidence that Mr Brick gave about the reasons for his decision to dismiss Mr Doevendans. These reasons are set out at [24] above.
54 In the circumstances of this case, s 346(b), read with s 347(b)(iii), applied to prohibit BHP Coal from dismissing Mr Doevendans 'because' he participated in a lawful activity organised or promoted by the CFMEU. In the circumstances of the case, the primary judge held, correctly in my view, that the 'activity' to which s 347(b)(iii) referred was "the general protest" (i.e., the "protest which occurred during the stoppage of work over the period 15-22 February 2012": Primary Judgment at [85], reproduced at [32] above). It was apparently undisputed that Mr Doevendans had participated in the general protest, because although he had not been rostered on for work at the relevant time, his unchallenged evidence was to the effect that he admitted (at the meeting on 4 May 2012) having attended the protest. Further, as the primary judge held the protest was a "lawful activity" (within the meaning of s 347(b)(iii)) in the circumstances as they existed at the time.
55 The question that the primary judge should have asked at this point was whether BHP Coal had discharged the onus of proof that, on the balance of probabilities, Mr Doevendans' participation in the general protest was not a substantial and operative reason (whether alone or with other reasons) for his dismissal. If his Honour had asked this question at this point, he would have been obliged to consider all the relevant evidence, especially that of Mr Brick as to why he decided to terminate Mr Doevendans' employment (which the primary judge had accepted without qualification). This evidence showed clearly Mr Brick's reasons for dismissing Mr Doevendans did not include Mr Doevendans' participation in the general protest. The evidence as to the substantial and operative reasons for Mr Brick's decision to dismiss Mr Doevendans can be summarised as: (1) choosing to hold and wave the scabs sign on a number of occasions over a number of days; (2) violation of BHP Coal's Charter and Conduct Policy and the culture that Mr Brick was seeking to develop at the mine; and (3) Mr Doevendans' lack of contrition and defensive and arrogant attitude.
56 Mr Brick's evidence (accepted without qualification by the primary judge) ruled out the possibility that Mr Doevendans was dismissed 'because' he participated in the 'general protest' organised by the CFMEU. Rather, Mr Brick's evidence was that Mr Doevendans was dismissed because of what he did in the course of participating in the protest. This was not equivalent to dismissing him 'because' he participated in the protest. Indeed, it can be inferred from Mr Brick's evidence that he accepted that the protest was lawful and that an employee's participation in it per se could not justify dismissal or any other form of adverse action.
57 In my view the primary judge's error was to treat Mr Doevendans' display of the scabs sign as synonymous with his participation in a lawful activity organized by the CFMEU. That is, whilst Mr Brick's evidence was that Mr Doevendans was dismissed for holding and waving the scabs sign because of its unacceptable attributes, he was not dismissed for participating in the protest. As we have seen, Barclay (and Bowling) rejected the proposition that, to exculpate itself, an employer must establish that the reasons for adverse action were entirely dissociated from the employee's union activities. An activity is not insulated from adverse action by an employer because it "happens to be" done in the course of otherwise lawful industrial activity. The approach taken by his Honour was, so it seems to me, redolent of this kind of error. That is, his Honour has treated the employee's dismissal because of waving the scabs sign in the course of the employee's union activities as tantamount to dismissal because he participated in those activities. His Honour's justification for so doing led to error: Primary Judgment at [85], set out at [33] above.
58 The present case can be compared with Pearce (referred earlier), in which it was alleged that the employer had dismissed the employee because he was a member of a union. The employee, who was the only one of the employer's employees to be a union member, refused to sign a paper stating his satisfaction with his working conditions and wages. Had he signed as requested, the Arbitration Court would have had no jurisdiction to include the employer in the relevant award. The employee was dismissed after he declined to sign the paper. In Pearce, however, it may be recalled that a director of the employer company gave evidence that the employee was not dismissed "because of being in a union" (which was unlawful under a predecessor to s 346(a) of the Fair Work Act) but because he was dissatisfied with his wages and conditions. The Police Magistrate dismissed the information against the employer company on the basis of the director's evidence, the Police Magistrate stating that he had "no reason to doubt his testimony". In the High Court the majority held that the acceptance of the director's evidence was sufficient to exculpate the employer. Similarly, in the present case, the primary judge did not discern any contrary inference that might be available on the facts to qualify his acceptance of Mr Brick's evidence. Rather, he gave it unqualified acceptance. As in Pearce, there was in this case no basis to attribute to Mr Brick an operative reason that did not form part of his own statement of his reasons for the dismissal.
59 Accordingly, I agree with Flick and Dowsett JJ that his Honour erred in holding that Mr Doevendans' dismissal was in contravention of s 346(b) of the Fair Work Act because he was dismissed for participating in a lawful activity organised by an industrial association. Mr Doevendans was not dismissed for this reason.
60 I am, however, unable to agree that the primary judge's consideration of the second limb of the CFMEU's case under s 346(b) disclosed error. In the circumstances of the case, s 346(b), read with s 347(b)(v), applied to preclude BHP Coal from dismissing Mr Doevendans 'because' (in the Bowling sense) he represented or advanced the views, claims or interests of the CFMEU. The question for the primary judge was whether BHP Coal had discharged the onus of proof that, on the balance of probabilities, a substantial and operative reason for Mr Doevendans' dismissal was not that he had represented or advanced the views, claims or interests of an industrial association - here the CFMEU.
61 In substance the primary judge held that BHP Coal had not discharged this onus of proof; and his Honour did so by reference to all the evidence, particularly that of Mr Brick and Mr Andrew Vickers, the General Secretary of the relevant Division of the CFMEU, who had considerable experience in the mining industry in Queensland: Primary Judgment at [93]. When this evidence was considered, it was, plainly enough, open to his Honour to conclude that this onus of proof had not been discharged.
62 As already indicated, Mr Brick's evidence as to why he dismissed Mr Doevendans showed that there were a number of substantial and operative reasons for Mr Brick's decision, including that Mr Doevendans held up and waved the scabs sign on a number of occasions over a number of days. Section 360 of the Fair Work Act expressly acknowledges that there can be multiple reasons for action of this kind, only one of which need be proscribed to render the decision unlawful. In holding up the sign at the protest site, Mr Doevendans was without doubt expressing a view about those of his fellow-workers who continued to work during the stoppage of work over the period 15-22 February 2012. That view was one of the strongest disapproval.
63 I agree with the primary judge too that the scabs sign can also be taken as representing an interest, in that the sign expressed disapproval of workers who undermined the efficacy of collective industrial action by declining to engage in it (in this instance, by continuing to work during the work stoppage); and, by vehemently expressing disapproval, the scabs sign also sought to discourage workers from not joining in collective action.
64 Having regard to all the evidence, it was self-evidently open to the primary judge to hold that the views and interest being represented by Mr Doevendans in holding up the sign were those of an industrial association, namely, the CFMEU. The sign read 'No principles' - being the principles of the union, which Mr Doevendans advanced when he held up and waved the sign at passing motorists and their passengers. In this regard, his Honour referred to the evidence of Mr Vickers, who gave evidence that "[f]or as long as [he] could remember, the applicant, and its predecessors, had encouraged members to criticise those who went to work whilst others were on strike, the most common term used being 'scab'": Primary Judgment at [121]. Indeed, at this point, it is helpful to set out his Honour's description of Mr Vickers' evidence and the use made of it. His Honour said (at [120]-[121]):
The applicant called Mr Vickers to give evidence as to the views of the applicant itself, and of the Branch. This evidence was objected to on the ground that Mr Vickers was in no position to state what other peoples' views were. In the absence of any rule or resolution of the applicant, much of Mr Vickers' evidence amounted to his recollections, over many years, of the views which others held, and of the conclusions which he drew about the views of others from the general tenor of conversations and interactions in meetings of various collective bodies within the applicant which he attended. These objections were, for the most part, based on the hearsay rule and, to that extent, I would uphold them. However, much of Mr Vickers' evidence related to what had in fact happened when he was present, or in relation to events in which he was involved, and to his observations of the way the applicant conducted itself in various respects. I would admit that evidence. What I say in the following paragraph is confined to it.
Mr Vickers said that the most common word used within the applicant to describe members who worked whilst other members were on strike was "scab". For as long as Mr Vickers could remember, the applicant, and its predecessors, had encouraged members to criticise those who went to work whilst others were on strike, the most common term used being "scab". The applicant had produced material, including posters, stickers, clothing and signs, conveying the view that those who worked during a strike were scabs. The applicant encouraged its members to display those stickers and posters, and to wear that clothing, as often as possible. Such material was usually produced at a central location, and then posted to various regional offices and lodge offices for distribution to members. The material was also distributed directly to members at meetings and by post to their homes. Mr Vickers frequently encouraged members to display this material and to provide copies to other members at their mines; and he witnessed other officials of the applicant acting likewise. An example of the posters produced by the applicant was the Jack London poem to which I have referred … . The applicant also paid for, and authorized the production of, stickers to be placed at various locations, such as on the hard hats of workers, on workers' cars, and around various mine sites. Such stickers included the phrases "I would never scab Australia needs good unions"; "It takes guts to stay collective"; "No principles scabs no guts"; and "Warning scabs undermine working conditions".
65 Mr Vickers' evidence threw light on other evidence that the scabs sign was amongst the signs and paraphernalia conveyed by the Lodge to the protest site and made available to protesters there to display whenever a car passed along the entrance road: Primary Judgment at [11]. The point of displaying the sign was to convey the message put on it by the union to passing motorists and their passengers. From this evidence and that of Mr Vickers, the primary judge was entitled to infer that the scabs sign represented the view of the CFMEU, or at least the Branch, that "workers who continue to work during a strike that has been endorsed by a collective of their fellows were scabs, and should be castigated as such"; and that, in this context, in displaying the scabs sign, Mr Doevendans was representing and advancing the view of the CFMEU or Branch and therefore of an industrial association: Primary Judgment at [122]-[123]. At the same time, on the evidence before his Honour, it was also open to him to hold that, by displaying the scabs sign, Mr Doevendans was prevailing on workers at the mine, by way of a negative strategy, not to continue to work and thereby compromise the efficacy of the on-going industrial action; and, in this sense too, Mr Doevendans was advancing the interests of the Branch in its negotiations with BHP Coal: see [123]. That Mr Doevendans was dismissed for representing these interests in the context of a work stoppage and protest is irrelevant to the operation of s 346 and s 347(b)(v), because Mr Doevendans would enjoy the same statutory protection if he had driven to work with one of the stickers to which Mr Vickers referred stuck to his back window, whether or not negotiations for a new enterprise agreement were on foot.
66 At one stage, BHP's submission seemed to be that an employer will only contravene s 346 of the Fair Work Act where the employer dismisses an employee 'because' he represented 'union' views, but not where the employer dismisses the employee 'because' he represented views that are in fact the views of the union. On this basis, BHP Coal apparently contended that Mr Doevendans was dismissed because he represented and advanced 'an anti-scabs; pro-strike' view and not because he represented or advanced a union view per se. In written submissions, for example, it was contended that Mr Doevendans' dismissal was not a breach of the protection afforded by s 347(b)(v) because "Mr Brick was [not] actuated by the fact that …the views or interests that [Mr Doevendans] was representing… were those of an industrial association". I cannot discern any basis for this in the Fair Work Act, read in light of Barclay and Bowling. Section 346 of the Fair Work Act, read with s 347(b)(v), prohibits an employer from dismissing an employee because the employee represents or advances "the views, claims or interests of an industrial association" (emphasis added). The proscribed reason is not that the employee represents 'union' views (whatever they may be) but that the employee represents or advances the particular views of an industrial association (in the sense that these views were held by that industrial association at the relevant time). BHP Coal's argument at this stage involves an unwarranted gloss upon the governing statute.
67 It will be recalled that Mr Brick stated in evidence, and the primary judge accepted, that he might have come to a different conclusion if any one or more of the factors to which he referred in reaching his decision had not been present. This evidence precluded an argument that an operative factor was not the waving of the scabs sign but was instead the infringement of BHP Coal's Charter and Conduct Policy and/or that fact that Mr Doevendans' conduct was not in keeping with the culture that Mr Brick was seeking to develop at the mine.
68 In any event, it seems to me some care must be taken in considering alleged breaches of an employer's good conduct policies. Without re-introducing the chain of reasoning rejected in Barclay and Bowling, it seems to me that, in taking adverse action against an employee, an employer can sometimes, but not always, rely on a contravention of a good conduct policy (and like workplace charters and protocols) as a non-prohibited reason to take adverse action. Thus, in Barclay the primary judge accepted the decision-maker's evidence that she dismissed Mr Barclay because she took the view that his conduct constituted serious misconduct under the Employees' Code of Conduct; and the High Court ultimately upheld his Honour's approach. In that case, Mr Barclay could have complied with this Code of Conduct and discharged his responsibilities to union members. A case could arise, however, where an employee was unable to take industrial action of the kind described in s 347 of the Fair Work Act without contravening an employer's good conduct policy. In this circumstance, it might well be said that, although the dismissal was founded on a policy breach, the adverse action taken by the decision-maker would also be done for a prohibited reason. In this kind of situation, it does not seem to me that the employer can avoid the prohibitions in s 346 of the Fair Work Act by relying on its own good conduct policy - in effect as a shield to an action such as the present. In such a situation, Gummow and Hayne JJ's statement that in applying s 346 "contrasting 'objective' and 'subjective' reasons is to adopt as illusory frame of reference" would be realised: Barclay at [121]. For the reasons stated earlier, this difficulty did not, however, arise in this case.
69 Further, it does not seem to me to matter whether the views expressed in the scabs sign were reasonable or not; or whether, in this case, the scabs sign in fact furthered or might reasonably be expected to be further the interests of the Branch in its negotiations with BHP Coal or its interests in protecting its members' rights generally. Section 347(b)(v) simply provides that a person engages in industrial action (for the purpose of s 346(b)) where that person represents or advances the views … or interests of an industrial association. The representation or advocacy of the views or interests of an industrial association are all that is required. To introduce any other qualifying element would be, again, to introduce a gloss on s 346(b) that lacks statutory support.
70 Accordingly, for the reasons, stated, I can discern no error in the primary judge's determination that Mr Doevendans' dismissal was in contravention of s 346(b) of the Fair Work Act because he was dismissed for representing or advancing the views and interests of an industrial association.
71 In the circumstances, I have not found it necessary to determine other issues that were explored in this appeal, including by way of a notice of contention. It is, for example, unnecessary for me to decide whether the action of Mr Doevendans in holding up and waving the scabs sign was unlawful.
72 For the reasons stated, I would therefore dismiss the appeal.
I certify that the preceding fifty-eight (58) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kenny.