HAYNE J.
The issue
In May 2012, the respondent ("BHP Coal") dismissed one of its employees: Mr Henk Doevendans. Mr Doevendans had been employed at the Saraji mine, as a machinery operator, for about 24 years. He was a member of the appellant union ("the CFMEU").
The General Manager of the Saraji mine, Mr Geoff Brick, decided that Mr Doevendans should be dismissed because, during protests the CFMEU held in connection with a seven-day work stoppage, Mr Doevendans had several times held up, and waved at those entering the mine property, a sign which used the word "scab". Mr Brick decided that Mr Doevendans' conduct was intentional, deliberate and repeated, and breached a workplace conduct policy and a charter of values. In Mr Brick's view, the use of the word "scab" was "unacceptable in the workplace".
Under the Fair Work Act 2009 (Cth) ("the Act"), dismissal is a form of "adverse action". The Act prohibits persons taking adverse action against another person because that person has engaged in "industrial activity" within the meaning of s 347(a) or (b). Two forms of "industrial activity" specified in s 347(b) are to "participate in ... a lawful activity organised or promoted by an industrial association" (sub‑par (iii)) and to "represent or advance the views, claims or interests of an industrial association" (sub‑par (v)). The CFMEU is an industrial association.
The Act provides that, for the purposes of the relevant provisions, "a person takes action for a particular reason if the reasons for the action include that reason". BHP Coal bore the onus of proving that it did not act for a prohibited reason.
Did BHP Coal establish that it dismissed Mr Doevendans for reasons that did not include a prohibited reason? Did BHP Coal show that it acted only for reasons other than because Mr Doevendans had participated in "a lawful activity organised or promoted by" the CFMEU, or because he had represented or advanced "the views, claims or interests" of the CFMEU?
Proceedings in the Federal Court and this Court
At trial in the Federal Court of Australia, Jessup J held that BHP Coal did dismiss Mr Doevendans because he had participated in a lawful activity organised by an industrial association (the CFMEU), and because he had represented and advanced the views and interests of that association. BHP Coal was ordered to pay a pecuniary penalty and to reinstate Mr Doevendans.
BHP Coal appealed to the Full Court of the Federal Court. By majority (Dowsett and Flick JJ, Kenny J dissenting) the appeal was allowed and the orders made by Jessup J were set aside. Dowsett and Flick JJ concluded that BHP Coal had not dismissed Mr Doevendans because he had engaged in industrial activity within the meaning of either s 347(b)(iii) or s 347(b)(v). In dissent, Kenny J concluded that BHP Coal had not proved that Mr Doevendans' representing or advancing the views of the CFMEU written on the sign was not a reason for his dismissal. His dismissal was therefore because of his engaging in industrial activity of the kind described in s 347(b)(v).
By special leave the CFMEU appeals to this Court. The appeal should be allowed, the orders of the Full Court of the Federal Court set aside and the appeal to that Court dismissed.
The facts
During 2011 and 2012, BHP Coal and its employees were negotiating about a new enterprise agreement to apply to BHP Coal's operations at various mines, including the Saraji mine. For the purpose of supporting or advancing their claims, employees of BHP Coal took protected industrial action in the form of work stoppages and overtime bans. There was a seven-day work stoppage between 15 and 22 February 2012.
During this stoppage, members of the CFMEU who were employed at the Saraji mine, including Mr Doevendans, participated in protests beside the road leading into the mine property. Standing behind barriers BHP Coal had erected at the side of the road, the protesters held up signs which the CFMEU had provided and waved the signs at those who were driving into the mine. The signs were directly or indirectly critical of BHP Coal and of those who were driving into the mine. On four occasions over three days, Mr Doevendans held up a sign that read: "No principles Scabs No guts" ("the scabs sign").
Some employees of BHP Coal complained to management about the scabs sign. The trial judge described in some detail the steps that were then taken. For present purposes, it is enough to observe that, first, Mr Doevendans was given notice of what was alleged against him and was given opportunities (which he took) to respond to the allegations. Then, the General Manager of the mine, Mr Brick, wrote to Mr Doevendans saying, in effect, that what was alleged was not disputed and that he found Mr Doevendans' conduct to be inconsistent with the applicable workplace conduct policy and charter of values and "unacceptable in the workplace". In his letter, Mr Brick described the conduct as constituting "harassment and/or intimidation" of non‑union employees and employees who chose to attend work during the industrial action, as creating a potential risk to the health and safety of workers who chose to attend work during the industrial action, and as failing to meet BHP Coal's "expectation that each employee will treat others in the workplace with courtesy, dignity and respect". Mr Brick recorded, in his letter, that Mr Doevendans admitted "that use of the word 'scab' at work is not acceptable". The letter required Mr Doevendans, in effect, to show cause why his employment should not be terminated. After further correspondence between the CFMEU and BHP Coal, Mr Brick decided to terminate Mr Doevendans' employment.
At trial, there was elaborate examination of, and much debate about, why Mr Brick made that decision. Close consideration was given to whether Mr Brick had acted with some ulterior motive. But the trial judge rejected those arguments and found that Mr Brick dismissed Mr Doevendans for the reasons Mr Brick gave in evidence.
In his evidence, Mr Brick had described those reasons in 14 separate points. But shorn of the characterisations and consequences Mr Brick attributed to Mr Doevendans' conduct, which reflected Mr Brick's view of whether what had been done could be justified, the reasons for dismissal can be accurately summarised as being that Mr Doevendans had repeatedly, and deliberately, held up the scabs sign and waved it at those driving into the mine, even though he knew that the word "scab" was inappropriate in the workplace. No doubt, as the trial judge and Flick J both observed, Mr Brick also thought it important that the sign was contrary to BHP Coal's workplace conduct policy and that Mr Doevendans had demonstrated arrogance when confronted with his conduct. But the former consideration was Mr Brick's characterisation of the conduct and the latter was a consequence following from the parties' competing views about whether what had been done could be justified. Neither consideration adds to or subtracts from the accuracy of the summary which has been given of Mr Brick's reasons. And neither bears upon the relevant inquiry, being whether BHP Coal established that it acted only for reasons other than because Mr Doevendans had taken part in the protests. As the summary indicates, Mr Brick's complaint was with the manner in which Mr Doevendans had taken part in the protests.
Did Mr Brick act for reasons that included a prohibited reason?
Board of Bendigo Regional Institute of Technical and Further Education v Barclay [No 1]
Properly, close consideration was given at all stages of the litigation (including in the appeal to this Court) to what this Court said in Board of Bendigo Regional Institute of Technical and Further Education v Barclay [No 1]. It is important, however, to recognise that the central holding in Bendigo was that direct testimony from an employer's decision‑maker, if accepted as reliable, is capable of discharging the burden on an employer under s 361(1), even where the employee is an officer or member of an industrial association and engages in industrial activity. Bendigo did not decide that accepting the decision‑maker's evidence of why adverse action was taken necessarily concluded the issue in a case where the employee was engaged in industrial activity. As counsel for the Minister, intervening, rightly submitted in Bendigo, "[i]t is an error to reduce the question to a binary choice between believing or rejecting the evidence" of the relevant decision‑maker.
In Bendigo, neither side challenged in this Court the findings of fact made by the trial judge. As French CJ and Crennan J noted, the trial judge found that "Mr Barclay's union position and activities were not operative factors" in his being suspended from duty. In Bendigo, argument proceeded in this Court by reference to the supposed distinction between "objective" and "subjective" reasons and whether, as the Full Court of the Federal Court had held, there could be a "real reason" for the conduct that was "unconscious or not appreciated or understood". Because the trial judge's findings of fact were not challenged, rejection of the reasoning of the Full Court required that the appeal be allowed and the trial judge's orders restored. But that does not entail that this Court's decision in Bendigo foreclosed the analysis made by the trial judge in this matter. The underlying statutory question remains. Why was adverse action taken? Did the employer show that the reasons for acting did not include a prohibited reason?
Dismissal for reasons which included a prohibited reason?
In this case, the lawful activity organised by the CFMEU was a protest. The protest was held close to, but not on, the mine property. Neither the holding of the protest nor the manner in which it was conducted was unlawful. Mr Brick dismissed Mr Doevendans because he repeatedly and deliberately displayed the scabs sign.
There can be no dispute that, as the trial judge found, the sign which Mr Doevendans held ("No principles Scabs No guts") was offensive and abusive and that "the whole point of calling someone a scab was to offend and to belittle them". In an industrial context, the word cannot be used except to demean those who choose to exercise their right not to join in concerted industrial action. And it may readily be accepted that its use in this case was antithetical to what Mr Brick said was BHP Coal's expectation: "that each employee will treat others in the workplace with courtesy, dignity and respect".
But Mr Doevendans' use of the word (by his displaying the sign) cannot be divorced from the circumstances in which it was used. He used it in the course of participating in a union‑organised protest. The protest was directed at BHP Coal as employer. But it was also directed at those employees who had not joined the work stoppage.
As has been noted earlier, Mr Brick's reasons for dismissing Mr Doevendans hinged around the language in which Mr Doevendans chose to express that latter form of protest. The central point was that he had chosen to express his protest using a word which he knew was offensive. That is, Mr Doevendans had participated in a lawful activity organised by the CFMEU (a protest against his employer and his fellow employees who were not participating in the work stoppage) in a way which he knew would give offence to others.
At trial, BHP Coal sought, unsuccessfully, to establish that displaying the sign was contrary to law (either as offensive behaviour contrary to s 6 of the Summary Offences Act 2005 (Q) or as a form of adverse action contrary to s 346(c) of the Act). The trial judge rejected those submissions. They were not renewed on appeal to this Court. It follows that the conduct which was the focus of Mr Brick's reasons for dismissing Mr Doevendans must be taken to have been lawful conduct.
The conclusion that Mr Brick did not act for a prohibited reason can be reached only by distinguishing between Mr Doevendans' participation in the protest near the entrance to the mine property and the manner in which he expressed his protest. No relevant distinction of that kind can be drawn.
The engaging in industrial activity identified in s 347(b)(iii) is participating in a lawful activity. The Act draws no express distinction between kinds of participation in a lawful activity. It may be accepted that, if the activity must be lawful, the method and manner of participation in the activity must also be lawful. But when, as here, the activity is a protest, no further distinction can be made between those protests which are courteous or polite and those which (lawfully) give offence.
Both the activity and the manner in which Mr Doevendans took part in it were lawful. So long as the protest was conducted lawfully, it was not to the point to ask (as Mr Brick did) whether what was said or done in the protest would offend others or, in particular, would offend some employees. And when Mr Brick concluded that Mr Doevendans should be dismissed because he had deliberately and repeatedly protested in an offensive manner, Mr Brick acted for a prohibited reason. He dismissed Mr Doevendans because he had participated in a lawful activity organised by the CFMEU.
Representing or advancing union views or interests
The CFMEU provided the scabs sign which Mr Doevendans chose to display. The trial judge found that the sign represented the views and interests of the CFMEU. The very terms of the sign ("No principles Scabs No guts") admitted of no other conclusion.
Contrary to BHP Coal's submissions, it is neither necessary nor useful to inquire whether Mr Brick, in the course of his deliberations, paused to consider whether the sign represented the views or interests of the CFMEU. It may be accepted that he did not. But to attach significance to Mr Brick's not connecting the views expressed on the scabs sign with the CFMEU would be to resort again to the contrast between objective and subjective reasons dismissed in Bendigo as "an illusory frame of reference".
There could be no doubt that Mr Brick understood that the word "scab" was used in the manner and circumstances that have already been described. That is, Mr Brick knew not only that the word was used to demean those who had not joined in the work stoppage, but also that the CFMEU had organised the protest at which the sign was repeatedly displayed. And Mr Brick knew that the protest was directed at both BHP Coal and those of its employees who had not joined in the work stoppage.
Again, unless some distinction can be drawn between the act of representing or advancing the views or interests of the CFMEU and the manner in which that was done, Mr Doevendans was dismissed for reasons that included his representing or advancing those views. For the reasons given in connection with the application of s 347(b)(iii), no distinction of that kind can be made.
Conclusion and orders
The appeal to this Court should be allowed. The orders of the Full Court of the Federal Court of Australia made on 13 December 2013 should be set aside and in their place there should be an order that the appeal to that Court is dismissed. The appellant made no application for costs.