Construction, Forestry, Mining & Energy Union v BHP Steel

The statutory provisions 24 Section 298K is contained in Part XA of the Workplace Relations Act. That Part (s298A to s298Z) is entitled "Freedom of Association". Section 298A states that, as well as the objects set out in s3 of the Act, Part XA has objects: "(a) to ensure that employers, employees and independent contractors are free to join industrial associations of their choice or not to join industrial associations; and (b) to ensure that employers, employees and independent contractors are not discriminated against or victimised because they are, or are not, members or officers of industrial associations." 25 Section 298B defines the term "industrial instrument", for the purposes of Part XA, as including an award. It is common ground, in the present case, that the coal mining award is an "industrial instrument". 26 Section 298C provides that Division 2 of Part XA "applies only to the extent provided in this Division". However, the Division includes s298G(1), which refers to "conduct by a constitutional corporation". That term is defined in s4(1) of the Act in such a way as to include BHP Steel. 27 Division 3 of Part XA deals with conduct by employers. It opens with s298K(1) which reads: "An employer must not, for a prohibited reason, or for reasons that include a prohibited reason, do or threaten to do any of the following: (a) dismiss an employee; (b) injure an employee in his or her employment; (c) alter the position of an employee to the employee's prejudice; (d) refuse to employ another person; (e) discriminate against another person in the terms or conditions on which the employer offers to employ the other person." [Emphasis added] 28 Section 298K(2) is irrelevant; it concerns independent contractors. 29 Section 298L(1) provides: "298L(1) Conduct referred to in subsection 298K(1) or (2) is for a prohibited reason if it is carried out because the employee, independent contractor or other person concerned: (a) is, has been, proposes to become or has at any time proposed to become an officer, delegate or member of an industrial association; or (b) is not, or does not propose to become, a member of an industrial association; or (c) in the case of a refusal to engage another person as an independent contractor: (i) has one or more employees who are not, or do not propose to become, members of an industrial association; or (ii) has not paid, or does not propose to pay, a fee (however described) to an industrial association; or (d) has refused or failed to join in industrial action; or" (e) in the case of an employee - has refused or failed to agree or consent to, or vote in favour of, the making of an agreement to which an industrial association of which the employee is a member would be a party; or (f) has made, proposes to make or has at any time proposed to make an application to an industrial body for an order under an industrial law for the holding of a secret ballot; or (g) has participated in, proposes to participate in or has at any time proposed to participate in a secret ballot ordered by an industrial body under an industrial law; or (h) is entitled to the benefit of an industrial instrument or an order of an industrial body; or (i) has made or proposes to make any inquiry or complaint to a person or body having the capacity under an industrial law to seek: (i) compliance with that law; or (iii) the observance of a person's right under an industrial instrument; or (j) has participated in, proposes to participate in or has at any time proposed to participate in a proceeding under an industrial law; or (k) has given or proposes to give evidence in a proceeding under an industrial law; or (l) in the case of an employee, or an independent contractor, who is a member of an industrial association that is seeking better industrial conditions - is dissatisfied with his or her conditions; or (m) in the case of an employee or an independent contractor - has absented himself or herself from work without leave if: (i) the absence was for the purpose of carrying out duties or exercising rights as an officer of an industrial association; and (ii) the employee or independent contractor applied for leave before absenting himself or herself and leave was unreasonably refused or withheld; or (n) as an officer or member of an industrial association, has done, or proposes to do, an act or thing for the purpose of furthering or protecting the industrial interests of the industrial association, being an act or thing that is: (i) lawful; and (ii) within the limits of an authority expressly conferred on the employee, independent contractor or other person by the industrial association under its rules." [Emphasis added] 30 Division 6 of Part XA deals with enforcement of the Part. It contains s298U, which sets out the orders this Court may make in respect of conduct in contravention of the Part. They include: "(a) an order imposing on a person or industrial association whose conduct contravened or is contravening the provision in question a penalty of not more than: (i) in the case of a body corporate - $10,000; or (ii) in any other case - $2,000; (b) an order requiring the person or industrial association to reinstate an employee, or to re-engage an independent contractor; (c) an order requiring the person or industrial association to pay to an employee or independent contractor, or to a prospective employee or independent contractor, compensation of such amount as the Court thinks appropriate; (d) … (e) injunctions (including interim injunctions), and any other orders, that the Court thinks necessary to stop the conduct or remedy its effects; (f) any other consequential orders." 31 Section 298V provides a rebuttable presumption, in favour of the asserter, in relation to an assertion that an alleged contravener carried out particular conduct with a particular intent.

CFMEU's submissions 32 CFMEU relies on s298K(1)(d) and s298L(1)(h) of the Act. Mr R Beech-Jones, counsel for CFMEU, submitted the effect of the conduct of BHP Steel, on and after 9 December 1999, was that it refused to employ Mr Gaskill except on the basis that he surrendered benefits to which he was entitled under the coal mining award. Mr Beech-Jones conceded it would have been open to BHP Steel, with Mr Gaskill's agreement and before his retrenchment took effect, to transfer Mr Gaskill's employment from the colliery to the steelworks, without making any sick leave or redundancy payment to him. If that had been done, he said, there would have been no termination of employment giving rise to the entitlements provided by the coal mining award. However, Mr Beech-Jones pointed out, this is not what happened; Mr Gaskill was in fact terminated as from 19 November. Accordingly, counsel submitted, when BHP Steel made its offer of employment to him on 9 December, it was making an offer to a person who was not then its employee; and it was refusing to employ him unless he gave up benefits of an industrial instrument to which he was entitled. 33 Mr Beech-Jones noted that BHP Steel did not dispute that the redundancy and sick leave payments stemmed from benefits contained in the coal mining award. He also relied on the presumption provided by s298V. 34 Mr Beech-Jones put submissions regarding relief. He pressed for an order requiring BHP Steel to employ Mr Gaskill at the steelworks; although he conceded that, having regard to Mr Gaskill's evidence as to his earnings since December 1999, it would not be appropriate to require BHP Steel to pay him compensation for lost wages. Mr Beech-Jones also sought the imposition of a penalty under s298U(a) of the Act.

BHP Steel's submissions 35 Mr R Goot, counsel for BHP Steel, submitted that CFMEU's argument ignored the context in which the issue arose. He said that the possibility of Mr Gaskill being employed at the steelworks was always dependent upon the employer being able to arrange a VR swap. BHP Steel was not advertising positions at the steelworks or seeking to increase its workforce at that establishment; the company was simply offering an opportunity for some steelworks employees, who wished to leave, to take voluntary redundancy, and thereby provide vacancies for some colliery employees who wished to continue with BHP Steel but would otherwise be forced into involuntary redundancy. Mr Goot emphasised that Mr Gaskill had always known this was the position; indeed, he made his application for a position at the steelworks with the knowledge, and on the basis, that a position would only be available if a VR swap could be arranged and, in that event, he would not also be entitled to the redundancy and sick leave benefits provided by the coal mining award. 36 Mr Goot submitted his client had not refused to employ Mr Gaskill, within the meaning of s298K(1)(d) of the Act; until there was a VR swap, there was no relevant vacancy. In support of that submission, Mr Goot referred to Fraser v Fletcher Construction Australia Ltd (1996) 70 IR 117. 37 Fraser arose under s334 of the Industrial Relations Act 1988, the predecessor of s298K and s298L of the Workplace Relations Act. Section 334(2) provided an employer "shall not refuse to employ a person, or discriminate against a person in the terms or conditions on which the employer offers to employ the person" because of any one of ten specified circumstances. The specified circumstances were much the same as those listed in s298L(1) of the present Act. They included being a delegate or member of a registered organisation, having given evidence in a proceeding under the Act or having taken lawful and authorised action to further or protect the interests of a registered organisation of which the person was a member. Two persons, Arnold and Gallagher, were employed by Fletcher Construction in connection with the laying of a gas pipeline. They were elected as CFMEU delegates. In that capacity, they took action (including by giving evidence in proceedings before the Australian Industrial Relations Commission) to obtain an adequate completion bonus for the workforce at conclusion of the project. They continued to be employed by Fletcher Construction until towards the end of the project (Arnold until 18 December 1995, Gallagher until 2 February 1996) but neither man was offered employment in connection with a new project being undertaken by the company. The workforce for the new project was assembled by February 1996. Neither man requested employment on the new project until 19 April 1996. This request was refused on 30 April 1996. Thereafter two informations were laid. Each alleged a refusal, on 30 April 1996, to employ one of the men for a proscribed reason. 38 Moore J, sitting in the Industrial Relations Court of Australia, held Fletcher Construction had no case to answer. He saw s334(2) as a provision concerned about discrimination. Therefore, it was necessary for a prosecutor to show that a vacancy existed or might arise. At 119, his Honour said: "It is necessary to consider the expression 'refuse to employ' in context. Its immediate context is one in which two aspects of an employer's conduct are identified in the prefatory words in s334(2). The expression 'refuse to employ' identifies the first. The remainder of the prefatory words identify the second. They concern conduct where an offer is made to employ a person on discriminatory terms. It is relatively clear, in my opinion, that the second aspect concerns conduct where an employer intends to employ someone, the person is offered employment and the employer does so on discriminatory terms. It concerns actual and not theoretical employment. That is, employment by an employer to perform work for the employer albeit on discriminatory terms of conditions. Thus the companion words to the expression 'refuse to employ' concern actual employment and they constitute a fairly compelling pointer of the subject matter Parliament intended to address in s334(2). They indicate that the expression 'refuse to employ' deals with the same subject matter, that is, actual employment where there is a refusal to employ a person in circumstances where, apart from the refusal, employment might or would arise. I refer to situations where employment might arise to allow for circumstances where a vacant position exists and a refusal to employ arises before the employer has ascertained whether the person applying for the job or position, who is victimised for a prescribed [sic: proscribed] reason, is qualified or equipped to do the job." 39 Mr Goot contended the approach taken by Moore J in Fraser was equally applicable to ss298K and s298L of the current Act. He said those provisions are concerned about discrimination in employment, as is made clear by their statutory context. 40 Mr Goot also submitted it is not accurate to say Mr Gaskill was a person "entitled to the benefit" of the coal mining award at and after 9 December 1999; by that time, he had been paid everything to which he was entitled under the award. 41 Mr Goot also put submissions regarding relief. Having regard to the fact that Mr Gaskill has earned income since December 1999 roughly comparable to what he would have earned in that time at the steelworks, Mr Goot submitted, it would be appropriate for the Court to exercise the discretion conferred on it by s298U in favour of refusing to make a reinstatement order or injunction. In relation to penalty, Mr Goot submitted any contravention of s298K arose solely out of the fact that BHP Steel endeavoured to ameliorate the plight of employees who would otherwise be involuntarily retrenched; there was no intention of acting in an unfair or discriminatory way.

Discussion 42 It is not apparent to me why the drafter used the word "another" in paras (d) and (e) of s298K(1). As will have been noted, this word was not used in the predecessor provision, s334 of the Industrial Relations Act 1988. The Explanatory Memorandum for the enacting Bill, Workplace Relations and Other Legislation Amendment Bill 1996, casts no light on the subject. Presumably the intention was to distinguish the person referred to in para (d) or (e) from an existing employee, referred to in paras (a), (b) and (c). But this distinction is inherent in the content of the paragraphs. It is not possible to refuse to employ, or to offer to employ, an existing employee. However, in the present case, nothing seems to turn on this drafting curiosity. Both counsel argued on the basis that "another person" simply means "a person"; and therefore is apt to include Mr Gaskill. I adopt that view. 43 I do not accept Mr Goot's argument that the effect of para (h) of s298L(1) was spent by 9 December, because by that time Mr Gaskill had received the monies to which he was entitled, on retrenchment, under the coal mining award. I agree with Mr Beech-Jones' submission in reply: the entitlement is not merely to receive the benefit, but to retain it. It seems to me an employer who threatened that, unless a person surrendered an already received benefit, the employer would do an action listed in s298K(1) of the Act would contravene that subsection. The critical question is whether that is a fair description of what BHP Steel did in the present case. In my opinion it is not. 44 I accept Mr Goot's submission that is necessary, in characterising BHP Steel's conduct, to look at the whole sequence of events. There is no suggestion that BHP Steel wished to add to its steelworks workforce; the possibility of employment of displaced colliery workers arose only in the context of VR swaps. As Mr Goot said, BHP Steel was endeavouring to ameliorate the consequences, for its employees, of its decision to reduce the colliery workforce. BHP Steel officers were aware that some steelworks employees were interested in taking voluntary redundancy, if that option were available to them. However, their positions were not redundant; BHP Steel wished to maintain those positions. If those employees could move, by way of exchange with employees at the colliery, into positions that were to become redundant, BHP Steel could offer them a redundancy package and conscientiously certify this as such for tax purposes. BHP Steel would have to pay redundancy benefits to the departing steelworks employees, but it would be spared making such payments to the colliery employees who moved into their positions at the steelworks. Those who wished to leave would go out with redundancy benefits; those who wished to continue in the employment of BHP Steel would do so, at the steelworks and with unbroken continuity of employment; BHP Steel would make redundancy payments commensurate in number with the reduction in its total workforce. 45 As Mr Beech-Jones acknowledged, if the timing had been different, all this could have been achieved without any suggestion of contravention of s298K of the Act. If BHP Steel had moved earlier, in inviting and determining applications for transfer, or been less precipitate in relation to the effective retrenchment date, it might have arranged the transfers before the colliery terminations took effect. In that case, there would have been no question about refusing to employ a person; the person who moved to the steelworks would have been an existing employee. 46 Does it matter that, in fact, the termination took effect before the letter of offer was issued? I think not. 47 I agree with Moore J, in Fraser, that the old s334 was concerned with discrimination and victimisation in offering employment. In saying that, I should explain that I understand his Honour to mean discrimination and victimisation that offends the principles of freedom of association. 48 It is fundamental to the notion of freedom of association that employees should be free to join, or refuse to join, industrial organisations; and not be subject to discriminatory action or victimisation on account of their choice. Likewise, it is fundamental that employees should be free, if they choose to do so, fully to participate in the affairs of registered organisations and in lawful actions designed to protect and further the interests of such organisations and their members. Once again, they must not be penalised for taking that course. Similarly, employees should be allowed, without penalty, to take advantage of entitlements provided by, or under, the Act, including award benefits. To victimise, or discriminate against, an employee who insists on obtaining and receiving award benefits, is to offend notions of freedom of association; such an action undermines the right of collective action. 49 The rationale underlying the old s334 is, perhaps, even more evident in the present legislation. Section 298K is contained in a Part of the Act headed "Freedom of Association". Section 298A states two objects of the Part, each of which is directly concerned with freedom of association and protection against discrimination or victimisation on account of involvement in industrial associations. Most of the prohibited reasons listed in s298L(1) are directly concerned with industrial activities or connections. 50 A refusal to employ somebody involves discrimination or victimisation only if there was, at the relevant time, a vacancy or prospective vacancy. For that reason, I agree with, and apply to the current legislation, Moore J's observation that the reference to refusing to employ a person concerns "actual employment where there is a refusal to employ a person in circumstances where, apart from the refusal, employment might or would arise." 51 There is no doubt that BHP Steel refused to employ Mr Gaskill at the steelworks except on the basis that he repaid benefits he had received under the coal mining award. If he had been an applicant for a vacancy at the steelworks, I would have agreed such a refusal offended s298K. However, there never was a vacancy available to Mr Gaskill; there was only an opportunity to exchange positions with a similarly qualified employee, at the steelworks, who wished to take voluntary redundancy. Unless and until an exchange was arranged, no position was available to Mr Gaskill. If arrangements had been made before his retrenchment notice took effect, there would have been no problem. But they were not made before that date. Implementation of the proposal therefore depended on Mr Gaskill agreeing, in effect, to revert to the pre-termination position by refunding his entitlements. He declined to do that. He was entitled to take that attitude, but its effect was to prevent the relevant vacancy arising. Mr Gaskill had the opportunity to choose between the position and the entitlements. He chose the latter. There was no discrimination or victimisation in this case. 52 I should add that, if I had reached the contrary conclusion, and determined that BHP Steel's conduct did contravene s298K(1) of the Act, I would have exercised the Court's discretion in favour of refusing relief. I would not have done that for the reason advanced by Mr Goot. Although Mr Gaskill has succeeded in earning about as much money since December 1999 as he would have earned at the steelworks, he still wishes to be employed at the steelworks. Apparently he thinks the steelworks offers him greater long term security of employment. If he was wrongly denied a steelworks position in December 1999, the fact that he has managed in the meantime to maintain his income would not be a good reason for withholding relief to which he was otherwise entitled. 53 My reason for denying relief would be more fundamental. This is not a case of an exploitative employer endeavouring to deprive an employee of the employee's just entitlements, or pressuring an employee into a decision that may not be in the employee's best interests. BHP Steel was happy to give Mr Gaskill everything to which he was entitled under the coal mining award. The problem arose only because officers of BHP Steel wished to go one step further, and to assist displaced colliery workers obtain employment elsewhere. They are to be congratulated for that attitude. Further, on Mr Gaskill's own account, the officers carried out the exercise in a careful and sensitive manner. They offered full information and an opportunity to affected employees to take advice and time for consideration. Mr Gewohn, in particular, is to be commended for his reaction to Mr Gaskill's concern on 9 December. He put no pressure on Mr Gaskill, but told him to take the letter away and get advice, if he wished, and come back when he had made his decision. He could not have been more considerate. Mr Gaskill in fact took the letter away, obtained advice and made his decision. 54 Under these circumstances, it would be wrong to allow Mr Gaskill to take advantage of the circumstance that the retrenchment took effect before determination of his transfer application; to give him both "the money and the box".

Disposition 55 The application must be dismissed. I certify that the preceding fifty-five (55) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wilcox.

Associate: Dated: 27 July 2000 Counsel for the Applicant: R Beech-Jones

Solicitor for the Respondent: Blake Dawson & Waldron