GUMMOW AND HAYNE JJ. The first respondent, Mr Barclay, is a senior teacher at the Bendigo Regional Institute of Technology and Further Education ("BRIT"), the Board of which is the appellant. Mr Barclay is also President of the BRIT Sub‑Branch of the second respondent, the Australian Education Union ("the AEU"). The AEU is an organisation registered pursuant to legislative provisions now found in Ch 2 of the Fair Work (Registered Organisations) Act 2009 (Cth).
On 2 February 2010, BRIT suspended Mr Barclay on full pay from his employment, suspended his internet access, excluded him from the BRIT premises and commenced disciplinary proceedings against him. (It later was agreed that Mr Barclay return to work on a normal basis, but he remains subject to pending disciplinary proceedings.) The action on 2 February 2010 followed an e‑mail sent by Mr Barclay four days previously. The e‑mail was headed "A note of caution" and warned employees of BRIT who were members of the AEU that they should "not agree to be part of any attempt to create false[/fraudulent] documentation" in preparation for an audit of BRIT to be conducted by the Victorian Registration and Qualifications Authority.
In proceedings in the Federal Court, Mr Barclay and the AEU sought declaratory relief that the action by BRIT contravened s 346 of the Fair Work Act 2009 (Cth) ("the Act"). This provided that a person should not take adverse action against another "because" that other person: (a) was or was not an officer or member of an industrial association, or (b) engaged or proposed to engage in "industrial activity". They also sought orders for compensation under s 545(2)(b) of the Act and orders pursuant to s 546 for the imposition and recovery of penalties. Tracey J dismissed the application.
However, the Full Court (Gray and Bromberg JJ, Lander J dissenting) allowed an appeal by Mr Barclay and the AEU. The matter was remitted to the primary judge to determine the appropriate penalties to be imposed on BRIT for its contraventions of the Act.
For the reasons which follow, in addition to those in the other joint reasons, with which we are in general agreement, the appeal by BRIT to this Court should be allowed and consequential orders made.
The provisions in s 346 of the Act, contraventions of which were alleged against BRIT, have a lengthy provenance in industrial law in Australia. An appreciation of the issues which arise in the present appeal is assisted by some reference to that legislative history, including several decisions upon the earlier legislation which informed the submissions on the appeal.
Legislative history
Section 346 of the Act derived from s 9 of the Commonwealth Conciliation and Arbitration Act 1904 (Cth) ("the 1904 Act"). As first enacted, s 9 of the 1904 Act provided:
"(1) No employer shall dismiss any employee from his employment by reason merely of the fact that the employee is an officer or member of an organization or is entitled to the benefit of an industrial agreement or award.
Penalty: Twenty pounds.
(2) No proceeding for any contravention of this section shall be instituted without the leave of the President or the Registrar.
(3) In any proceeding for any contravention of this section, it shall lie upon the employer to show that any employee, proved to have been dismissed whilst an officer or member of an organization or entitled as aforesaid, was dismissed for some reason other than those mentioned in this section."
Section 9 in this form was omitted by the Commonwealth Conciliation and Arbitration Act 1909 (Cth) and a substituted s 9 provided:
"(1) No employer shall dismiss any employee from his employment or injure him in his employment by reason merely of the fact that the employee is an officer or member of an organization, or of an association that has applied to be registered as an organization or is entitled to the benefit of an industrial agreement or award.
Penalty: Twenty pounds
(2) No proceeding for any contravention of this section shall be instituted without the leave of the President or the Registrar.
(3) In any proceeding for any contravention of this section, it shall lie upon the employer to show that any employee, proved to have been dismissed or injured in his employment whilst an officer or member of an organization or such an association or whilst entitled as aforesaid, was dismissed or injured in his employment for some reason other than that mentioned in this section." (emphasis added)
Whilst s 9 of the 1904 Act was the first federal provision of its kind, it was drawn from New South Wales legislation.
In his second reading speech in the House of Representatives on the Bill for what became the 1904 Act, Alfred Deakin described the Industrial Arbitration Act 1901 (NSW) ("the New South Wales Act") as: "the most advanced and complete piece of legislation of this kind which has yet found its way upon a statute‑book". He went on to indicate that the Bill had been drafted with the provisions of the New South Wales Act in mind.
This is apparent from the terms of s 35 of the New South Wales Act:
"If an employer dismisses from his employment any employee by reason merely of the fact that the employee is a member of an industrial union, or is entitled to the benefit of an award, order, or agreement, such employer shall be liable to a penalty not exceeding twenty pounds for each employee so dismissed.
In every case it shall lie on the employer to satisfy the court that such employee was so dismissed by reason of some facts other than those above mentioned in this section: Provided that no proceedings shall be begun under this section except by leave of the court."
In his second reading speech in the Legislative Council on the Bill, for what became the New South Wales Act, the Attorney‑General, The Hon Bernhard Wise KC, made extended reference to industrial strife in the United States, adding:
"We know that there is a black list in the United States, and one of the most potent instruments of the capitalists in the United States is that black list. A man who makes himself conspicuous as an advocate of the rights of the workmen is debarred from employment; though he may disguise himself, and change his name as he will, he is debarred from employment from one end of the Union to the other."
Of the clause which became s 35 of the New South Wales Act, the Attorney‑General said:
"The clause would not operate harshly upon an employer who honestly dismisses a man for a genuine reason; but if the clause is to exist at all in the bill, it is absolutely useless, unless the burden of showing that the man was dismissed for some other reason than that of belonging to the union is cast upon the only man who knows the real reason, that is, the employer."
The protections provided for by the Act in contemporary times serve purposes not dissimilar to its antecedents. In argument on this appeal reference was made to Pearce v W D Peacock & Co Ltd. Pearce involved an unsuccessful appeal direct to this Court from the dismissal of the prosecution, in a Tasmanian Court of Petty Sessions, of an employer for an offence under s 9 of the 1904 Act. The information had been laid by Mr Pearce, the general secretary of the union of which Mr Batchelor was a member. It alleged that the respondent employer had dismissed Mr Batchelor by reason of the circumstance that he was a member of the union which was an organisation registered under the 1904 Act. Mr Batchelor had been the only employee who was a member of the union. The employer had been served with a log of claims in Arbitration Court proceedings. Mr Batchelor refused to sign a paper proffered by the employer in which he would indicate his satisfaction with his working conditions and remuneration. If he had signed as requested, the result would have been to deprive the Arbitration Court of jurisdiction to include the employer in the award. Mr Batchelor was dismissed after he refused to sign the paper. The employer argued that the dismissal had occurred because Mr Batchelor had expressed dissatisfaction with his job, and not for any reason connected to his union involvement.
By majority (Barton ACJ, Gavan Duffy and Rich JJ, Isaacs and Higgins JJ dissenting), this Court held that there was evidence to support the view that the employer had not been actuated by the reason alleged in the information, and that it had been open to the Court of Petty Sessions to dismiss the union's information.
With respect to the operation of s 9, Barton ACJ said:
"No doubt, it is an inquiry in a large measure as to motive; and no doubt also, the motive is to be inferred from facts, and mere declarations as to the mental state that prompted the employer's action are entitled to little or no regard."
Isaacs J was in dissent on the issue of whether, on appeal, the High Court had the power or duty to form its own reasons and conclusions on the evidence before the Magistrate. His Honour also went further regarding the interpretation of s 9 and concluded:
"[A]s I read that section, it is designed, among other things, to preserve organizations, so that the method selected by Parliament for settling disputes shall not be thwarted. The provision casting the onus on the defendant employer means that the fact that the dismissed employee was a member of an organization must not enter in any way into the reason of the defendant, if he desires exculpation. Otherwise he might add any other reason whatever to the membership of a union, and break down the whole structure of the Act, so far as he is concerned, as the defendant has, in fact, done in this case." (emphasis added)
When read with s 10 of the 1904 Act, the protection applied both to employees and employers. Isaacs J continued:
"It is very material to remember that the Statute must be construed as a whole. It applies equally both to employers and employees. An employee's dissatisfaction is no more and no less independent of the industrial dispute in which it is expressed, where it is relied on to justify an employer in dismissing an employee, than where it is relied on to justify an employee for striking because of his dissatisfaction with existing conditions. Neither position is, in my opinion, justifiable in law, and both are to be condemned. When we consider the Act as speaking with equal force to both parties to a dispute, then a Court must, in arriving at its view of the meaning of the law, take into account the consideration that whatever is a legal justification in the one case is equally a legal justification in the other. To hold what is relied on here as a legal justification to be so in either case, and consequently in both cases, to my mind would mean reducing the law in all cases to a dead letter, and defeating the objects of the Act to the injury of the general community, which ought to be protected against both employers and employees taking the law into their own hands in disregard of the general welfare."
By 1976, the 1904 Act had undergone substantial amendment. Relevantly, through a process of renumbering, s 9 had become s 5 of the Conciliation and Arbitration Act 1904‑1976 (Cth) ("the 1976 Act"). Section 5(1) was in the following terms:
"An employer shall not dismiss an employee, or injure him in his employment, or alter his position to his prejudice, by reason of the circumstance that the employee -
(a) is or has been, or proposes, or has at any time proposed, to become an officer, delegate or member of an organization, or of an association that has applied to be registered as an organization; or
...
(f) being an officer, delegate or member of an organization, has done, or proposes to do, an act or thing which is lawful for the purposes of furthering or protecting the industrial interests of the organization or its members, being an act or thing done within the limits of authority expressly conferred on him by the organization in accordance with the rules of the organization.
Penalty: Four hundred dollars."
Under the 1976 Act, the onus remained with the defendant employer to prove it was "not actuated" by the reason alleged in the charge.
Section 5 of the 1976 Act was considered by this Court in General Motors Holden Pty Ltd v Bowling. By majority (Gibbs, Stephen, Mason and Jacobs JJ, Barwick CJ dissenting), the Court dismissed an appeal from the Industrial Court of Australia. The Industrial Court had convicted the appellant company of contravening s 5(1) in dismissing Mr Bowling.
Mason J, with whom Stephen and Jacobs JJ agreed, began his analysis of s 5 by remarking that the section had "a legislative history which extends back to the turn of the century when the trade union was a more fragile institution than it is today and when it stood in need of a large measure of protection from employers". His Honour went on to say that:
"The protection of trade unions and their representatives from discrimination and victimization by employers does not require an interpretation as extreme as that favoured by Isaacs J [in Pearce]. It would unduly and unfairly inhibit the dismissal of a union representative in circumstances where other employees would be dismissed and thereby confer on the union representative an advantage not enjoyed by other workers, to penalize a dismissal merely because the prohibited factor entered into the employer's reasons for dismissal though it was not a substantial and operative factor in those reasons."
Mason J preferred the construction that:
"[Section] 5(1) does not proscribe the circumstances which it lists as the sole or predominant reasons for dismissal. It is sufficient if the circumstance is a substantial and operative factor. And it does not cease to be such a factor because it is coupled with other circumstances or because regard is had to it in association with other circumstances not mentioned in the section." (emphasis added)
With respect to the onus borne by the employer, Mason J stated:
"Section 5(4) imposed the onus on the [employer] of establishing affirmatively that it was not actuated by the reason alleged in the charge. The consequence was that the [employee], in order to succeed, was not bound to adduce evidence that the [employer] was actuated by that reason, a matter peculiarly within the knowledge of the [employer]. The [employee] was entitled to succeed if the evidence was consistent with the hypothesis that the [employer] was so actuated and that hypothesis was not displaced by the [employer]. To hold that, despite the subsection, there is some requirement that the prosecutor brings evidence of this fact is to make an implication which, in my view, is unwarranted and which is at variance with the plain purpose of the provision in throwing on to the [employer] the onus of proving that which lies peculiarly within his own knowledge."
Turning to the facts of the case, Mason J held:
"Once it is said that the appellant dismissed [the respondent] because he was deliberately disrupting production and was setting a bad example it is not easy to say without more that this had nothing to do with his being a shop steward. Although the activities in question did not fall within his responsibilities as a shop steward his office gave him a status in the work force and a capacity to lead or influence other employees, a circumstance of which the appellant could not have been unaware. It would be mere surmise or speculation, unsupported by evidence, to suppose that the appellant's management, if concerned as to the bad example he was setting, divorced that consideration from the circumstance that he was a shop steward."
Gibbs J accepted the "substantial and operative factor" criterion adopted by Mason J, and added:
"The onus of proving that the fact that the employee held the position was not a substantial and operative factor in the dismissal is to be discharged according to the balance of probabilities and is not to be made heavier by any presumption that if an employee who is dismissed for disruptive activities happens to be a shop steward the latter circumstance must have had something to do with his dismissal. If in the present case evidence had been given by the directors responsible that the employee was dismissed because he was guilty of misconduct or because his work was unsatisfactory, and that in dismissing him they were not influenced by the fact that he was a shop steward or indeed that he was dismissed in spite of that fact, and that evidence had been accepted, the onus would have been discharged." (emphasis added)
The construction of the legislation accepted in Bowling was subsequently applied by Morling J in Lewis v Qantas Airways Ltd. This case concerned the dismissal of an employee, Mr Lewis, around the time of an industrial dispute which resulted in a twelve‑day strike. Mr Lewis was a delegate of the Transport Workers' Union of Australia. Another employee, Mr Macfarlane, was dismissed at the same time. The central question for determination was whether the fact that Mr Lewis was a union delegate constituted a "substantial and operative factor" which actuated his dismissal. The case presented by Qantas was that the dismissal of Mr Lewis (and Mr Macfarlane) had been prompted by timekeeping mispractice with respect to the bundy card system utilised by Qantas to record time spent by employees at work.
In holding that Qantas had not contravened s 5 of the 1976 Act in dismissing Mr Lewis, Morling J assessed the reliability and weight of the evidence adduced by both parties. His Honour made findings that Mr McLean, the dismissing officer, "bore no ill‑will to the prosecutor", and that:
"It is significant that McLean did not single out the prosecutor for treatment different from that meted out to Macfarlane, who was not a union delegate and who had not taken any special part in the quarantine dispute. ... I am satisfied that neither Macfarlane nor the prosecutor was unfairly treated. If facts favourable to the prosecutor did not emerge at the interview, that failure was due entirely to his own refusal to say anything in his own defence."
Morling J concluded that the evidence was sufficient to draw a reasonable inference that Mr Lewis had directly or indirectly requested Mr Macfarlane to "clock" his bundy card. His Honour agreed with the statement by Northrop J in Hyde v Chrysler (Australia) Ltd, that being a member, delegate or officer of a union organisation:
"'does not confer on that employee an immunity from dismissal by reason of the circumstance that he is a delegate of an organization'. ... The timekeeping offence for which the prosecutor was dismissed had no relation to his position as a union delegate or to the part which he had played in the industrial disputation with the company. His position as delegate gave him no immunity from dismissal for the offence."
The Fair Work Act 2009
In 1988, s 5 of the 1976 Act was embodied in s 334 of the Industrial Relations Act 1988 (Cth) ("the IR Act"). This provision was then encapsulated first in ss 298K and 298L of the Workplace Relations Act 1996 (Cth) ("the WR Act") and then in ss 792 and 793 of the WR Act, as amended in 2006. The WR Act was repealed in 2009 and replaced by the Act.
The critical provision, s 346, is contained in Ch 3, Pt 3‑1, Div 4 of the Act under the chapeau "Industrial activities". Part 3‑1 (ss 334‑378) is headed "General Protections".
The objectives of Pt 3‑1 include protecting the freedom to elect to become a member of, be represented by and participate in the lawful industrial activities of industrial associations (s 336(b)). Division 3 of Pt 3‑1 (ss 340‑346) concerns the protection of "Workplace rights", Div 5 (ss 351‑355) provides for "Other protections" and Div 7 (ss 360‑364) provides "Ancillary rules". As will be seen, the interpretation of any of the provisions contained within Pt 3‑1 requires an appreciation of the Part as a whole.
Section 346 is in the following terms:
"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).
Note: this section is a civil remedy provision (see Part 4‑1)." (emphasis added)
The Note refers to Pt 4‑1 of Ch 4, which includes orders for compensation (s 545(2)(b)), and pecuniary penalty orders (s 546).
A person "engages in industrial activity" under s 347 if the person:
"(b) does, or does not:
...
(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
...
(v) represent or advance the views, claims or interests of an industrial association".
The term "industrial association" is used by the Act to replace the term "organizations" found in the earlier legislation. The term is defined in s 12 of the Act as:
"(a) an association of employees or independent contractors, or both, or an association of employers, that is registered or recognised as such an association (however described) under a workplace law; or
(b) an association of employees, or independent contractors, or both (whether formed formally or informally), a purpose of which is the protection and promotion of their interests in matters concerning their employment, or their interests as independent contractors (as the case may be); or
(c) an association of employers a principal purpose of which is the protection and promotion of their interests in matters concerning employment and/or independent contractors;
and includes:
(d) a branch of such an association; and
(e) an organisation; and
(f) a branch of an organisation."
(emphasis added)
The taking of "adverse action" is defined in s 342(1). Amongst other actions, adverse action is taken by an employer against an employee if the employer:
"(c) alters the position of the employee to the employee's prejudice; or
(d) discriminates between the employee and other employees of the employer."
Finally, the term "officer" of an industrial association is defined in s 12 as:
"(a) an official of the association; or
(b) a delegate or other representative of the association."
Section 12 defines "official" as meaning:
" a person who holds an office in, or is an employee of, the [industrial] association."
The appellant concedes that the AEU is an "industrial association" and that Mr Barclay, as President of the BRIT AEU Sub‑Branch, is an "officer" for the purposes of these proceedings.
The application of s 346 turns on the term "because". This term is not defined. The term is not unique to s 346. It appears in s 340 (regarding workplace rights), s 351 (regarding discrimination), s 352 (regarding temporary absence in relation to illness or injury) and s 354 (regarding coverage by particular instruments, including provisions of the National Employment Standards).
The use in s 346(b) of the term "because" in the expression "because the other person engages ... in industrial activity", invites attention to the reasons why the decision-maker so acted. Section 360 stipulates that, for the purposes of provisions including s 346, whilst there may be multiple reasons for a particular action "a person takes action for a particular reason if the reasons for the action include that reason". These provisions presented an issue of fact for decision by the primary judge.
Reference was made in argument to Purvis v New South Wales. That litigation concerned the application of the Disability Discrimination Act 1992 (Cth) to the suspension and expulsion of a disabled student from a State school. Section 5(1) used the expression "because of the disability". Gummow, Hayne and Heydon JJ emphasised that s 10 of the statute stated that if an act is done for two or more reasons, one of which is the disability of a person, even if it not be the dominant or a substantial reason for doing the act, the act is taken to be done for that reason. This provision may be compared with s 360 of the Act just described.
With respect to what became s 346 of the Act, paragraph 1458 of the Explanatory Memorandum to the Fair Work Bill 2008 stated:
"Clause 360 provides that for the purposes of Part 3‑1, a person takes action for a particular reason if the reasons for the action include that reason. The formulation of this clause embodies the language in existing section 792 which appears in Part 16 of the WR Act (Freedom of Association) and includes the related jurisprudence. This phrase has been interpreted to mean that the reason must be an operative or immediate reason for the action (see Maritime Union of Australia v CSL Australia Pty Limited). The 'sole or dominant' reason test which applied to some protections in the WR Act does not apply in Part 3‑1." (emphasis added)
The phrase "operative or immediate reason" used in CSL is relevantly indistinguishable from the phrase "a substantial and operative factor" used by Mason J in Bowling.
In light of the legislative history of s 346 and the intention of Parliament outlined above, the reasoning of Mason J in Bowling is to be applied to s 346. An employer contravenes s 346 if it can be said that engagement by the employee in an industrial activity comprised "a substantial and operative" reason, or reasons including the reason, for the employer's action and that this action constitutes an "adverse action" within the meaning of s 342.
With respect to the onus of proof, the Act adopts the same position as that under the 1904 Act. Section 361 establishes the onus of proof under the chapeau "Reasons for action to be presumed unless proved otherwise". The provision is in the following terms:
"(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."
Consistent with the statement of Gibbs J in Bowling, the Explanatory Memorandum to the Fair Work Bill 2008 states:
"subclause 361(1) provides that once a complainant has alleged that a person's actual or threatened action is motivated by a reason or intent that would contravene the relevant provision(s) of Part 3‑1, that person [in this case, the employer] has to establish, on the balance of probabilities, that the conduct was not carried out unlawfully. This has been a long‑standing feature of the freedom of association and unlawful termination protections and recognises that, in the absence of such a clause, it would often be extremely difficult, if not impossible, for a complainant to establish that a person acted for an unlawful reason."
There is no issue of onus raised in these proceedings.
At trial
The respondents, then the applicants, submitted that in determining whether or not prejudicial action has been taken "because" of the status or activities of the victim, the subjective reason of the actor for taking the prejudicial action is wholly irrelevant. Rather the test was said to be "purely objective". This disjunction between "subjective" and "objective" reasons was to be productive of error in the Full Court. Alternatively, the respondents submitted at trial that BRIT had not established that, on the balance of probabilities, it had not acted for a proscribed reason.
With respect to the operation of s 346, Tracey J held:
"It has never been the case that an employer was prevented, by federal industrial legislation, from taking prejudicial action against an employee who happened to be a union member or a union official: see for example Cuevas v Freeman Motors Ltd. An employer could not, however, act to the detriment of an employee 'by reason of' or 'because' of the employee's union membership or associated activities. Over the past century the legislature has expanded progressively the number of prejudicial acts which are denied to an employer and the number of proscribed reasons which might actuate the taking of such prejudicial action. The central issue in this case is concerned with the provisions of the Act which determine whether a causal nexus exists between an employee's union membership and activities and any prejudicial action about which complaint is made."
His Honour continued, after considering what was decided in Bowling:
"In all of the cases to which I was referred ... and others which I have examined, the court proceeded on the basis that evidence of the employer's subjective reasons for taking the impugned action was relevant in deciding whether the employer had taken the action because of the existence of one or more of the circumstances in which such action was impermissible."
Dr Harvey, the Chief Executive Officer of BRIT, was the person responsible for the action taken against Mr Barclay. She gave evidence and was cross‑examined at length. His Honour made the following findings regarding her evidence:
"When, however, [Dr Harvey] 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. ... 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. ... I accept her evidence. I am satisfied that she did not act for any proscribed reason."
The application was dismissed.
The Full Court
In dealing with the operation of the word "because" in s 346 on appeal to the Full Court of the Federal Court, the majority (Gray and Bromberg JJ) said:
"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?
...
So much is evident from the use of the word 'because'. It is also consonant with the objective and protective purposes of s 346." (emphasis added)
Their Honours continued:
"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."
Whilst accepting the view of the primary judge that the words "because" and "by reason of" are used interchangeably by the Act, Gray and Bromberg JJ took issue with the assessment of the employer's subjective state of mind in ascertaining the reasons relevant to the adverse action:
"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 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." (emphasis added)
Gray and Bromberg JJ concluded the primary judge erred by failing to require BRIT to establish the "real reason" for the treatment of Mr Barclay, rather than that by which Dr Harvey had thought she had been actuated. Their Honours linked this notion of the "real reason" to what had been said in the passage set out above by reiterating that "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". Further, the e‑mail was sent by Mr Barclay in his capacity as an officer of the AEU and, even if it were to be accepted that the content of the e‑mail may have been overstated, his failure was that of a union officer and not of an employee. The dismissal therefore occurred for a proscribed reason in contravention of s 346.
In his dissenting reasons, Lander J preferred the approach of the primary judge, namely, that when looking to identify the reasons "because" a decision was made, the question is to be answered "by reference to the subjective intention of the decision‑maker". In this regard, whilst Mr Barclay may have been acting on behalf of the AEU when sending the e‑mail, the adverse action taken by BRIT was not for this reason. The action was taken because "[Dr Harvey] was of the view that the allegation against [Mr Barclay] was serious, and [she] 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", as found by the primary judge. These findings of fact had not been challenged before the Full Court.
The appeal to this Court
Before this Court the appellant accepts that it took "adverse action" against the first respondent under s 342 of the Act. On the footing that s 346 applies, the primary issue for determination is whether or not the adverse action was made "because" of a reason proscribed by s 346. No party to the appeal seeks to agitate the findings of fact made by the primary judge.
The Minister for Tertiary Education, Skills, Jobs and Workplace Relations ("the Minister") sought, and was granted, leave to intervene. The Minister largely supported the position taken by Mr Barclay and the AEU.
The appellant submits that there are four questions to be dealt with in this appeal; and it is convenient to proceed in this fashion. The questions may be formulated as follows: