Twentieth Superpace Nominees v TWU

Industrial Relations Act 1996, ss188, 210, 213 LEGISLATION CITED: Occupational Health and Safety Act 2000, ss8(1) and (2) Workplace Relations Act 1996 (Cth), ss298K, 298L, 298V

Briginshaw v Briginshaw (1938) 60 CLR 336 Knowles v Anglican Church Property Trust (No 2) (1995) 95 IR 380 Australian Air Express v Langford (2005) 147 IR 240 Moss v Fantil Pty Ltd (1994) 58 IR 118 CASES CITED: Davis v Amalgamated Television Services (1998) 81 IR 364 Greater Dandenong City Council v ASU (2001) 111 IR 121 Maritime Union of Australia v CSL Australia Pty Ltd (2002) 113 IR 326 Australian Workers' Union and Another v John Holland Pty Ltd [2001] FCA 93 AMIEU v Belandra (2003) 126 IR 165 Purvis v New South Wales Department of Education and Training and Another (2003) 217 CLR 92

APPELLANT Mr H J Dixon, SC Solicitor: Ms H Mackenzie Blake Dawson Waldron LEGAL REPRESENTATIVES: RESPONDENT Mr Adam Hatcher Transport Workers' Union of New South Wales (Mr Charlie Heuston)

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES FULL BENCH CORAM: WRIGHT J, President WALTON J, Vice-President RITCHIE C Thursday 24 August 2006

Twentieth Superpace Nominees Pty Ltd (t/a Specialised Container Transport) and Transport Workers' Union of New South Wales (on behalf of Steve Purdy).

Application by Twentieth Superpace Nominees Pty Ltd (t/a Specialised Container Transport) for leave to appeal and appeal a decision and orders of Commissioner Murphy given on 29 November 2005 in Matter No. IRC 1966 of 2005.

1 This matter concerns an application by Twentieth Superpace Nominees Pty Ltd (t/a Specialised Container Transport) ("SCT") for leave to appeal pursuant to s188 of the Industrial Relations Act 1996 ("the Act") and, if granted, an appeal against the decision and orders of Murphy C of 29 November 2005: Transport Workers' Union of New South Wales (on behalf of Steve Purdy) and Twentieth Super Pace Nominees Pty Ltd t/as (Specialised Container Transport) [2005] NSWIRComm 1178. In those proceedings, the Transport Workers' Union of New South Wales ("TWU"), on behalf of Mr Steve Purdy, made an application for orders under s213 of the Act for relief from victimisation of the type covered by s210 of the Act in the context of his application for employment with SCT. Murphy C concluded that Mr Purdy had been victimised and made orders for Mr Purdy's employment with SCT and payment for lost remuneration.

2 The factual background to this matter is set out in considerable detail in Murphy C's decision and, as the following factual findings are not in dispute, they can be relevantly summarised from the Commissioner's decision as follows:

(1) For nearly 10 years from around 1995, Mr Purdy was employed by Mills Transport as a truck driver to haul sugar cane from the Condong Co-operative Mill ("Condong"). Mr Purdy was elected as a union co-delegate in or around 2000 and was made a shift supervisor in 2000.

(2) During 2004, Mr Purdy raised concerns with Mills Transport regarding the overfilling of sugar bins, including by way of letter to Mr Kelvin Mills (his then employer) on 26 August 2004, summarised by Murphy C as follows:

... and in that letter to his former employer, he said amongst other things, "that high loads attracted more attention and more susceptible to the wind disturbance at highway speeds. Burnt or green cane has extraneous matter that is blown from the bins." He complained about the fact that some harvesting crews failed to use levelling bars provided. He went on to suggest that the Co-operative management was unwilling or unable to correct this attitude shown by some crews. Because there was zero input by drivers into the matter, he believed they should have zero liability and it was his view that fines or interception problems should be handed directly to the harvesting crews that had loaded the bins in question and to be made accountable for their part in the transport chain. His memorandum finished up talking about broken windscreens and abuse from the general public, who he said would determine where the offending cane billet fell from the load and advised Mr Mills "I am seeking exemption from liability on this matter".

(3) In September 2004, Mills Transport announced to its staff that it had lost the contract to cart sugar cane from Condong and the staff were invited to apply for positions with the three mills in the area, including Condong.

(4) In or around August 2004, the drivers signed a petition, including Mr Purdy as the first signatory, and delivered it to the TWU. Subsequently, the TWU sent the petition to Mills and Condong.

(5) The issue of the overloading of sugar cane bins was raised in correspondence between Condong and the TWU during September, October and November 2004 without resolution. A number of teleconferences were held during this period and in relation to the teleconference held on 28 October 2004, Murphy C summarised Mr Purdy's evidence as follows: [16] ... the applicant was unable to recall precisely what he said at the 28th October teleconference, but claimed that, whilst he could not recall exactly what was said during the conference "I expect that I spoke on behalf of the drivers, saying I was very concerned about the risk the bins exposed to the public and that I did not believe it was fair that the drivers are the ones who are held responsible when it was caused by the harvesting crew and the Co-operative." He recalled about that conference that the Co-operative had expressed the view that the loading of cane bins was not much of an issue, and that it was a low risk exercise.

(6) A meeting, termed a consultative committee meeting of drivers, was held on 3 November 2004 at which representatives from Condong were present, including Mr Graham Dines, Cane Supply Manager, and Mr John Tait, Cane Supply Superintendent. Mr Purdy gave evidence that during that meeting management of Condong said that 300 millimetres above the rim was an acceptable height of a load. On 4 November, Mr Purdy contacted the Roads & Traffic Authority (the "RTA") seeking information on the loading of bins and, on 5 November 2004, Mr Purdy wrote to the RTA and included, amongst other things:

surely this is not an acceptable practice, as one cane billet could cause a serious accident when it falls from the load during transport on public roads.

(7) Murphy C summarised Mr Purdy's further evidence in the following terms:

[20] ... Mr Purdy gave crucial evidence of a meeting on the 8th December with Peter Kinsella, one of the managers of the respondent, who met with drivers of the Condong Sugar Mill to introduce himself. At the conclusion of the meeting, Mr Purdy approached Mr Kinsella, as the union delegate and representative of the drivers, and in an endeavour to explain their concerns about the safety of the bins, assured him that it was a matter nothing to do with SCT (up to that point) and that the drivers had attempted to fix the problem before SCT came into the picture. According to Mr Purdy, Mr Kinsella seemed to know who he was and outlined his concerns about the cane bins saying to Mr Kinsella "we are trying to rectify all these problems before SCT comes in", to which Mr Kinsella replied: "I hear you contacted the RTA" Purdy: "Yes I did". Kinsella: "I do not approve of that. I would not employ anyone who didn't go through the right channels in management". [21] Mr Purdy's evidence was that he agreed at the time with Mr Kinsella, but because of the attitude displayed by Mr Kinsella, he was not able to explain that whilst he had gone outside management (i.e. Mills Transport), he had the full approval of his former employers in approaching the RTA on behalf of the drivers. [22] Mr Purdy recalled that Mr Kinsella said at some stage during that conversation, words to the effect: "You do not have any support with regards to the safety issues".

The conversation trailed off with the comment from Mr Kinsella: "It is just a simple logistical exercise, of moving bins from point 'A" to point "B". [23] Having found Mr Kinsella unreceptive, Mr Purdy decided at this point not to continue to discuss the issue and as he left, he observed that the cane supervisor, John Tait, as well as another manager of the Co-operative, were standing next to the other door which led into the room in which Mr Kinsella and he had been speaking. He was surprised to see them and he gave evidence that they looked startled when he turned around and saw them. He had not heard them speaking while he was talking to Mr Kinsella.

(8) The new contractor, SCT, using the employment recruitment agency, North Coast Workforce, conducted interviews in around early February 2005 and interviewed Mr Purdy on 9 February 2005.

(9) In late March 2005, Mr Purdy was advised that he was unsuccessful in gaining employment with SCT.

(10) The respondent, SCT, used selection criteria during its interview process which involved 10 different criteria with a total score of 100. Six of those 10 criteria were assessed by the formal interview and the remaining four comprised a primary reference check with the customer involved, references from former employers, driving record and a medical report. Importantly, while each of these criteria was assigned a score of 10, if an applicant failed in one of the two reference checks, their application failed in total irrespective of their results on the other reference check or indeed the other criteria.

(11) Mr Purdy was interviewed by Mr Briggs and Mr Dangler and obtained a score of 41 out of 60 for the six criteria assessed in the interview, 10 out of 10 for each of his driving record and medical record and nine out of 10 for his reference check from his former employer, Mills Transport. Mr Tait and Mr Dines of Condong provided the primary reference check for Mr Purdy and gave him a score of four out of ten. Accordingly, Mr Purdy failed the interview process despite scoring 74 out of 100. In the sub-categories in the primary reference check, Mr Tait and Mr Dines passed Mr Purdy on driving/tipping efficiency, adherence to occupational health and safety and work performance but gave him two out of 10 for communication and one out of 10 for co-operation. 3 The appellant has not challenged these factual matters, however, the appellant has challenged certain of the Commissioner's findings which we will discuss below. THE MATTER BELOW

4 The TWU, on behalf of Mr Purdy, made an application for orders under s213 of the Act for relief from victimisation of the type covered by s210 of the Act, which relevantly provides:

SECTION 210 FREEDOM FROM VICTIMISATION 210(1) An employer or industrial organisation must not victimise an employee or prospective employee because the person: (a) is or was a member or an official of an industrial organisation of employees or otherwise an elected representative of employees, or (b) does not belong to an industrial organisation of employees, or holds a certificate of conscientious objection to becoming a member of such an industrial organisation, or (c) refuses to engage in industrial action, or (d) exercises functions conferred under this Act, or (e) claims a benefit to which the person is entitled under the industrial relations legislation or an industrial instrument, or (f) informs any person of an alleged breach by an employer of the industrial relations legislation or of an industrial instrument, or (g) participates, or proposes to participate, in proceedings relating to an industrial matter, or (h) engages in, or proposes to engage in, any public or political activity (unless it interferes with the performance of the employee's duties), or (i) informs any person of an alleged breach of the Protection of the Environment Operations Act 1997 by an employer, or (ia) informs any person or body of, or gives evidence in relation to, a notifiable occurrence within the meaning of the Rail Safety Act 2002 , or (ib) reports a matter relating to the safety or reliability of railway, bus or ferry operations to the Chief Investigator of the Independent Transport Safety and Reliability Regulator or an officer of the Ministry of Transport, or (j) makes a complaint about a workplace matter that the person considers is not safe or a risk to health, or exercises functions (as a member of a committee or otherwise) with respect to workplace consultation conferred under Division 2 of Part 2 of the Occupational Health and Safety Act 2000 , or (k) assists the Independent Pricing and Regulatory Tribunal or Scheme Administrator in the exercise of its functions under the Electricity Supply Act 1995 . (2) In any proceedings under section 213 to enforce the provisions of this section, it is presumed that an employee or prospective employee who suffers any detriment as a result of action by the employer or industrial organisation was victimised because of a matter referred to in subsection (1) that is alleged by the applicant to be the cause of the detrimental action. That presumption is rebutted if the employer or industrial organisation satisfies the Commission that the alleged matter was not a substantial and operative cause of the detrimental action. 5 The TWU sought orders for the employment of Mr Purdy with SCT and payment for lost remuneration. 6 Murphy C made a number of findings in addition to those referred to above.The key findings are summarised below:

(1) Mr Purdy's concern with the loading of the sugar bins was not confined to liability for fines imposed by the RTA but related to broader occupational health and safety issues including the chance of injury to the public, noting that the:

[at paragraph 34] … more encompassing concern was rather obviously born out by the evidence that at one stage the mill advised that it was prepared to pay the fines and yet the evidence shows sustained and continued pursuit of the issue by Mr Purdy, on the wider OH&S front. He interpreted that offer as setting a precedent and causing a more sloppy approach by drivers to overloading, apparently in the absence of the prospect of paying the fine themselves.

(2) the employment process was contrived to rob Mr Purdy of a proper opportunity to be selected;

(3) it was significant that SCT, through Mr Dangler and Mr Kinsella, was not able to provide a satisfactory explanation for the adoption of the strict rule in respect of the primary reference check, as opposed to the driving record or medical record.

(4) it was not possible to accept that the primary reference check with Condong should have been on its own, without proper enquiry, sufficient to derail an application such as Mr Purdy's, where other important criteria placed him in an extremely strong position, compared to the vast majority of other drivers, without some explanation for that extraordinary low score.

(5) the incongruously low score obtained from Mr Tait at Condong as the primary reference check gave rise to a strong inference of ulterior motive, again where there was no other evidence to explain why the primary reference obtained from Mr Tait stated that Mr Purdy was unco-operative and failed to communicate.

(6) SCT and North Coast Workforce, through its interview criteria, effectively delegated its power to veto applications for employment to Condong.

(7) Mr Purdy's failure to obtain employment was a direct result of Mr Tait's negative assessment of him, which also contained a negative contribution from Mr Tait's co-manager Mr Graham Dines, who was from a different Mill and did not directly know Mr Purdy.

(8) There was a reasonable inference to be drawn that Mr Tait's veto of Mr Purdy reflected a pattern of opposition of his raising the occupational health and safety issue of the falling cane billets caused by excessive loading. Neither Mr Tait nor Mr Dines was called to give evidence. 7 In conclusion, Murphy C found that the TWU's claim on behalf of Mr Purdy for victimisation had been established, particularly having regard to the reversal of onus in s210(2), and concluded in the following terms:

The Commission's assessment of the evidence of all witnesses, left no doubt of an entrenched concern by the respondent for the role played by Mr Purdy on the safety issue of overloaded cane billets, and that causal connection was satisfactorily established to the Commission. Mr Purdy was actively sidelined and therefore victimised in terms of Section 210 subsections (a) and (j) inter alia, by a deliberately flawed process of selection of the drivers employed by the previous contractor, as well as from outside that source. 8 Murphy C made orders for the employment of Mr Purdy by SCT to perform work pursuant to its contract in connection with Condong whilstever SCT retained such contract and for Mr Purdy to be paid remuneration lost as a result of not being employed by SCT since the beginning of the 2005 sugar harvesting season at the rate of $1,300 gross per week, less any amounts earned by Mr Purdy in alternative work.

9 The appellant has challenged the Commissioner's findings that Mr Purdy made a complaint in relation to a workplace safety matter and that the alleged complaint resulted in Mr Purdy being refused employment with SCT. THE APPEAL

10 SCT appealed Murphy C's decision on extensive grounds, which may be summarised as follows:

(a) The decision was against the evidence and the weight of the evidence, including that Mr Purdy did not "make a complaint" within the meaning of s210(1)(j) of the Act; that Mr Purdy did not make a complaint about a workplace safety matter, that the alleged complaint had not resulted in SCT refusing to offer Mr Purdy employment with SCT and that the decision did not take into account that the recruitment processes were applied equally and evenly to all applicants for employment with SCT.

(b) Murphy C failed to properly apply the requirements of s210, in particular, he failed to properly specify the grounds on which a finding of victimisation was made. The interpretation of s210 applied by Murphy C was contrary to the scheme and intent of the Act.

(c) The Commissioner erred in not applying the correct standard of proof (being the standard laid down in Briginshaw v Briginshaw (1983) 60 CLR 336) to the question of whether the requirements of s210(1) had been made out by Mr Purdy.

(d) Murphy C erred in not finding whether the activities in s210(1) were a substantial and operative cause of Mr Purdy being refused employment with SCT.

(e) The Commissioner erred in failing to provide the parties with an opportunity to agree to, or make submissions regarding, the orders made by him.

(f) Murphy C failed to draw an appropriate distinction between a failure by SCT to offer employment and a failure to employ and, as a result, fell into error in relation to the orders made.

(g) The orders were vague and uncertain and no reasons were given for the discretionary decision, which amounted to a denial of natural justice. ISSUES ON APPEAL

11 We consider that these three questions are essentially those raised by this appeal:

1 What is the proper meaning of s210(1)(j) of the Act? 2 How is causation established? 3 Whether the orders were appropriately made in the circumstances and whether the form of those orders was permissible? 12 Mr Purdy's original claim alleged victimisation under both ss210(1)(a) and (j). Given our conclusions regarding the respondent's claim under s210(1)(j) which we will shortly outline, it is unnecessary for us to deal with the appellant's submission regarding s210(1)(a).

13 SCT contended that the appeal raised important issues about the proper construction of s210 of the Act, the exercise of powers under Ch 5, Pt 1 of the Act and the nature of orders available under s213 of the Act; that those questions had not previously been the subject of detailed reasoned attention of the Full Bench; and that it was in the public interest for those questions to be the subject of detailed reasoned attention of the Full Bench. 14 The TWU submitted that there was no basis for granting leave to appeal. Mr A Hatcher, counsel for the TWU, contended that at least six of the eight questions raised by the appellant were not squarely raised in the proceedings at first instance and on the basis of Knowles v Anglican Church Property Trust (No 2) (1995) 95 IR 380, leave should not be granted to allow what is a substantially different case to be argued on appeal. Mr Hatcher further contended that the remaining questions were without substance. 15 With regard to the terms of the orders, Mr Hatcher contended that the appellant's complaint that it did not have an opportunity to be heard as to the form of the orders made by the Commissioner was without substance. Specifically, Mr Hatcher contended that no issue about the form of the orders was raised in the appellant's closing submissions, which followed the TWU providing the Commission and the appellant with a written submission which identified the form of the orders sought and an oral submission which referred to the form of the orders. Mr Hatcher further contended that the appellant was not entitled to assume that there would be a separate hearing as to the form of the orders, nor did it seek to obtain any such hearing and, as such, there was no denial of natural justice. 16 Given the proceedings at first instance, we refuse leave to appeal as to the terms of the orders and the manner in which they were made. It is clear from the proceedings at first instance that the TWU submitted draft orders and that it was incumbent on SCT, if it wished to do so, to raise its objections or make its comments during the proceedings at first instance. Further, we do not believe it was necessary for Murphy C to provide reasons for the nature and form of the orders in circumstances where no objection was made as to the form of those orders. It is well settled that leave to appeal will not be granted to deal with arguments that were not squarely raised at first instance: Knowles v Anglican Church Property Trust (No 2) (1995) 95 IR 380 at 381-82. The appellant's submissions regarding the orders fall into this category. 17 We do, however, grant leave to appeal in so far as the appeal relates to the proper construction of s210 of the Act. The section is an important protective provision in the Industrial Relations Act and it is in the public interest to clarify its interpretation and operation. CONSIDERATION

What is the proper meaning of s210(1)(j) of the Act? 18 Mr H Dixon SC, who appeared for the appellant, made a number of contentions regarding the proper meaning of s210(1)(j). Specifically, he submitted that it was necessary for the respondent to prove that Mr Purdy made a complaint about the matters set out in s 210(1)(j) and that the expression "makes a complaint" in s 210(1)(j) is specific and requires more than making a claim or being dissatisfied with a matter. Further, he submitted that the requirement that the person "make" a complaint is to be contrasted with language such as complained, has made a complaint or proposes to complain. Mr Dixon SC also submitted that it is necessary to show that the person made a complaint at the time of the alleged refusal to offer employment. In essence, Mr Dixon SC submitted that the phrase "makes a complaint" requires a formal accusation made at the time at which the alleged victimisation is said to have occurred.

19 Having submitted that the phrase is to be interpreted in this matter, Mr Dixon SC then contended that Mr Purdy's conduct as seen in his conversation with Mr Kinsella on 8 November 2004, the meetings he attended, the signing of a petition regarding the overloading of sugar cane bins and his discussions with the RTA did not amount to making a complaint. On appeal, the appellant has not pressed its contention that Mr Purdy's conduct did not relate to occupational health and safety matters but rather the imposition of fines as it has not challenged the Commission's finding that Mr Purdy, in his employment with Mills Transport, was actively involved in occupational health and safety matters. 20 Mr Hatcher, counsel for the respondent, contended that there was ample evidence that Mr Purdy made a complaint about the risk to safety arising from overloaded sugar bins. Mr Hatcher further contended that the appellant's attempts to characterise Mr Purdy's conduct as amounting to no more than having a concern or dissatisfaction was not a distinction of any substance, referring to the definition in the Macquarie Dictionary (4th edn), which provides:

"Complaint" means "an expression of grief, regret, pain, censure, resentment, or discontent; lament; fault-finding". 21 Mr Hatcher further contended that whether the conduct of Mr Purdy was such as to amount to a complaint falling within the scope of that provision was a matter of fact and degree and that it was necessary for the appellant to demonstrate error before an appellant court would intervene: Australian Air Express v Langford (2005) 147 IR 240 at [15], and the appellant had not demonstrated any error. He further contended that the appellant's submission that the complaint must be made at the time of the victimisation is to be rejected as its effect would be to rob the provision of any practical utility. He also referred the Commission to previous Commission decisions which did not take the restrictive approach contended for: Moss v Fantil Pty Ltd (1994) 58 IR 118; Davis v Amalgamated Television Services (1998) 81 IR 364. In reply, Mr Dixon SC submitted that these authorities supported the appellant's contentions. 22 There are essentially two issues arising from the submissions of the parties to resolve regarding the proper meaning of s210(1)(j) of the Act:

(1) what conduct is required to satisfy the phrase "makes a complaint"; and

(2) what matters would fall within the scope of the matters listed in s210(1)(j). 23 As to the first matter, for the reasons we will outline, we consider that the phrase "makes a complaint" should be construed broadly and does not require a formal accusation. A complaint can be inferred from conduct, or a course of conduct, involving raising concerns, objections or disagreements and should be seen to encompass the myriad of ways in which an employee would ordinarily raise issues or make complaints in a workplace. 24 Mr Hatcher referred us to the Macquarie Dictionary definition of complaint, which provides that "complaint" means "an expression of grief, regret, pain, censure, resentment, or discontent; lament; fault-finding". Mr Dixon SC referred us to the definition of complaint in the Australian Concise Oxford Dictionary (7th edn, 1987), which provides: complaint n. utterance of grievance; expression of grief; formal accusation; subject or ground of complaint; bodily ailment. 25 In interpreting the phrase "makes a complaint", it is also necessary to consider the phrase in the context of the words used in the sub-section. The requirement is "makes a complaint about a workplace matter that a person considers is not safe or a risk to health". In this regard, we refer to the observations of the Full Bench in Davis v Amalgamated TV Services (1998) 81 IR 364, in which it was said (in obiter): The result is that the legislation is now not penal but purely remedial in nature and, in our view, should not be interpreted on a strict or technical basis so as to defeat receipt of the intended benefits; rather, a more purposive and beneficial construction of the legislation should be adopted. 26 We consider that the phrase "about a workplace matter" gives meaning to "complaint". Specifically, the context within which "complaint" is included in the section connotes something which is informal in nature akin to the statement of grievances or expression of dispute in a workplace context and thereby having the following attributes:

(a) the complaint may be in the nature of a grievance or dispute rather than a formal complaint; and (b) the complaint may be made in any one or more of the ways in which employees would ordinarily make complaints in the workplace, and (c) there is no requirement as to form, such that the complaint could be made orally or in writing. 27 Section 210(1) is a protective provision and to adopt an overly technical approach to the meaning of "complaint" as contended by the appellant would, in our view, serve to defeat the intended benefit of the section, that is, to allow people to make complaints about safety without fear of victimisation or retribution. In any event, the approach we take is to adopt a common sense approach to the ordinary meaning of the word. 28 Finally, in interpreting the phrase "makes a complaint" it is necessary to have regard to the purpose of s210 of the Act, which is expressed to be "Freedom from Victimisation". While neither party has referred us to the Second Reading Speech (23 November 1995), it is relevant to have regard to the comments made regarding the introduction of s210 and the amendments to the previous protection against victimisation provisions, which relevantly were:

The criminal flavour of the victimisation provisions contained in the 1991 Act has proved to be unworkable. I am advised there has been no successful prosecution of a claim for victimisation under the present legislation, and applications for remedies have been rare. Accordingly, the new provisions are designed to provide a system of appropriate safeguards, which is intended to be read broadly to give effect to the legislative intention of protection against victimisation, rather than being narrowly construed on the basis of technicalities.

The new provisions alter the standard of proof required to establish victimisation to the civil standard and empower the Commission to award a broad range of remedies designed to restore the employee to a position equivalent to that he or she would be in if the victimisation had not occurred. 29 In conclusion, having regard to the ordinary meaning of the word "complaint", the context in which the phrase "makes a complaint" is used in s210(1) and the protective nature of the section, we are satisfied that the phrase "makes a complaint" should be construed broadly and that it is not necessary to point a specific formal accusation as constituting the making of the complaint. Expressing dissatisfaction about a workplace matter may well amount to the making of a complaint. This may arise from an instance or the statement of a grievance or, when viewed in context, a course of conduct involving the expression of dissatisfaction or the raising of concerns or objections. 30 Further, we do not accept the appellant's submission that the complaint must be made at the time of the alleged refusal to offer employment as there is nothing in the section to justify such a limitation being imposed. In this regard, we agree with Mr Hatcher's submission that to interpret the provision in this manner would tend to rob the section of much of its efficiency. To interpret the section in this manner would be inconsistent with a purposive and beneficial interpretation of the provision and would fail to recognise that complaints about workplace matters may evolve over time and manifest themselves as a series of concerns or complaints which may escalate over time if the issue is not resolved. The circumstances of the present matter illustrate this clearly. 31 Turning to Mr Purdy's conduct in 2004, we are satisfied that Mr Purdy's conduct commencing from his letter of 26 August 2004 to his then employer, Mills Transport, constitutes making a complaint. This initial complaint was followed by a petition signed by Mr Purdy (as the first signatory) and a number of statements by Mr Purdy in meetings and teleconferences, including at which representatives of Condong and SCT were present. We regard the petition and each of these statements as an utterance of a grievance or an expression of fault-finding, each amounting to the making of a complaint. Certainly, the overall circumstance involve the making of a complaint. In this regard, we observe that Mr Purdy's letter to the RTA on 5 November 2004 can also be viewed as an utterance of a grievance or an expression of fault-finding. Each statement involves Mr Purdy stating an issue in the form of a grievance or discontent and pressing for its resolution and, by itself, or, as a course of conduct, constitutes a complaint for the purposes of s210(1)(j). Further, we are satisfied that each of these actions constituted "making a complaint" for the purposes of s210(1)(j) of the Act and observe that the petition could be regarded as a formal complaint contrary to the appellant's submissions as it is plainly a complaint in a formal sense with Mr Purdy as a primary actor. The fact that the TWU delayed serving the document does not, given that it was eventually served, rob it of its efficacy in establishing the existence of a complaint as it illustrates the nature and existence of the grievance expressed by Mr Purdy at the relevant time.

32 For the protection under section 210(1)(j) to be enlivened, it is necessary for the applicant to also show that the complaint was about, inter alia, a workplace matter that the person considers is not safe or a risk to health. In its written submissions, the appellant accepted that the Commission found that Mr Purdy was in his employment with Mills Transport actively involved in occupational health and safety matters, as opposed to having a concern about the mere imposition of fines, although the appellant contended that the actions related to this did not amount to making a complaint. 33 The section requires first, that the complaint relates to a "workplace matter" and secondly, one that the person "considers is not safe or [is] a risk to health". As already mentioned, the section should be read broadly to give effect to the legislative intention of the protection against victimisation provisions as seen in the Second Reading Speech. As such, "workplace matter" should be read to include any matter arising in connection with a workplace. In the case of Mr Purdy, the overloading of sugar bins was clearly a "workplace matter" as the filling and delivery of those bins was the responsibility of Mr Purdy as an employee. 34 As to the second requirement, the references to "safe" and a "risk to health" should also be construed broadly. In this regard, we consider that these terms should be read in the context of the Occupational Health and Safety Act 2000 and specifically of s8 of that Act deals with the safety of employees (s8(1)) and non-employees (s8(2)). While Mr Purdy's complaints did not allege that the overloading of the sugar bins posed a safety risk to employees, he was concerned about the consequences for other road users. We are satisfied that this constitutes a complaint "about a workplace matter that the person considers is not safe or a risk to health", in this case the safety of other road users. 35 Finally, we observe that from a policy viewpoint, every reasonable avenue should be available to an employee to raise occupational health and safety concerns without fear of victimisation or retribution and, accordingly, it is appropriate that s210(1)(j) should be construed broadly. 36 Given our conclusion regarding the proper interpretation of "makes a complaint" and the evidence regarding Mr Purdy's involvement in health and safety matters, we are satisfied that Mr Purdy made a complaint about a workplace matter regarding safety, in this case the risk to other road users in sugar cane falling from overloaded bins while in transit. This was evident from a number of Mr Purdy's actions, including his letter to his then employer on 26 August 2004 in which he referred to broken windscreens, the signing of the petition and the events at and subsequent to the meeting held on 3 November 2004, including his communications to the RTA in which he stated that "one cane billet could cause a serious accident". 37 Accordingly, Murphy C was correct in concluding that a complaint relating to the safety risk to the public was sufficient to constitute a "workplace matter that the person considers is not safe". How is causation established?

38 In order for a remedy to be available under s213 for a breach of s210, causation must also be relevantly established. 39 In our view, it is clear that this element has been satisfied. We agree with the respondent's submission that Murphy C made a positive finding that the reason for Mr Purdy being refused employment was because he had made complaints about the safety of overloading sugar bins. That finding was expressed in the following terms: The Commission's assessment of the evidence of all witnesses, left no doubt of an entrenched concern by the respondent for the role played by Mr Purdy on the safety issue of overloaded cane billets, and that causal connection was satisfactorily established to the Commission. Mr Purdy was actively sidelined and therefore victimised in terms of Section 210 subsections (a) and (j) inter alia, by a deliberately flawed process of selection of the drivers employed by the previous contractor, as well as from outside that source. 40 The Commissionerreached this conclusion after considering the direct evidence of the communications between the parties, including during the meeting held on 8 December 2004, and the unusual selection criteria applied to the interview process, and being satisfied that there was the requisite connection between SCT's conduct in refusing to employ Mr Purdy and Mr Purdy's safety complaints about the overloading of sugar bins. Regardless of the correct legal situation (which we shall discuss below), the distinction drawn by the appellant between the "immediate reason" (namely, that the appellant did not approve of any employee, and would not approve of an SCT employee, who did not go through the right channels in management to raise any concerns) and the "proximate reason" is not borne out by the Commissioner's extensive findings of fact. Nor is the matter of the reversal of the onus relevant, given that the Commissioner made positive findings (with which we concur) based on direct evidence that Mr Purdy was not employed because of his workplace safety complaints. In this sense the Commissioner's finding of causation was not based upon the presumption afforded by s210(2). Finally, the Commissioner's findings as to the failure by the appellant to call Mr Tait and Mr Dines represents no proper basis for appellate intervention. This is because, irrespective of the reverse onus found in s210(2), the appellant bore the ordinary evidentiary onus of meeting the affirmative case advanced by the respondent which it failed to do in not calling those witnesses. Its failure to discharge this onus required the Commissioner to accept what he found to be the credible evidence of the respondent. Certainly, he was entitled to accept that evidence.

41 These conclusions are sufficient to resolve the appeal. However, given the significance of the matters raised by the appellant which go to the proper interpretation of ss210(1) and (2), we will nonetheless deal with the parties' additional contentions as to the issue of the reversal of the onus and the proper legal test for causation under s210 of the Act. 42 The appellant contended the authorities supported two broad propositions: first, that a person relying on s210 must show that the alleged reason was the cause of the relevant conduct. It was also contended that the presumption in s210(2) operates when there is not sufficient evidence before the Commission which permits the Commission to determine what are the true facts. Secondly, it was contended that a distinction is to be made between the immediate reason for the conduct and proximate reason for that act.

43 Turning to the matter of the onus, we consider that the terms of s210(2) are clear: once an employee or prospective employee has demonstrated detriment as a result of an action by an employer or industrial organisation and the alleged cause of that detriment falls within the classes of victimisation in s210(1), then it is presumed that employee or prospective employee was victimised. The employee will be required to prove the elements of the alleged reason for victimisation being the elements of one or more of the paragraphs in s210(1) (for example, an applicant under s210(1) (j) will need to prove the existence of a complaint about a workplace matter concerning safety for the purposes of that sub-section). In the face of the presumption in s210(2), the onus is then on the employer or industrial organisation to show that the "alleged matter" was not "a substantial and operative cause of the detrimental action".

44 We note that the appellant relied upon the dissenting judgment of Finkelstein J in Greater Dandenong CC v ASU (2001) 111 IR 121, in which his Honour concluded:

But there is a limit to the operation of s298V. It will cease to have application in a case where there is sufficient evidence to enable the trial judge to make a positive finding whether conduct has been carried out for the alleged reason or with the alleged intent. Put another way, the presumption imposed by s298V must be drawn when there is not sufficient evidence before the court to permit the judge to determine what are the true facts, that is, true in the sense of being more probable than not. When the judge has that evidence, he cannot resort to s298V as an alternative to finding facts. 45 We do not accept the appellant's contention that this reflects a proper basis for the interpretation of s210. Finkelstein J's approach has not been followed in any of the other authorities. Indeed, Branson J in Maritime Union of Australia v CSL Australia Pty Ltd (2002) 113 IR 326 clarified and read down the scope of Finkelstein J's interpretation, when her Honour stated: 60 It follows, in my view, that the fact that there is in a case of this kind sufficient evidence before the Court to enable a positive finding to be made that a reason, or even the principal reason, for the carrying out of the conduct was not a prohibited reason will not exhaust the operation of s 298V. However, where there is sufficient evidence to enable a positive finding to be made that none of the operative reasons for the carrying out of the conduct was a prohibited reason, this will, in my view, exhaust the operation of the section. I do not understand Finkelstein J in Greater Dandenong (see [53] above) to have intended to convey anything to the contrary.

61 In this case I have concluded, having regard to the whole of the evidence before me, that, within the meaning of s 298K(1) of the WRA, the fact that the members of the crew of the CSL Yarra are entitled to the protection of the industrial instruments was neither the reason, nor included in the reasons, for the Company's conduct. The onus placed upon the Company by s 298V of the WRA is thus discharged. 46 The terms of s210(2) are clear and there is nothing in the section to suggest that it only operates in situations where there is not sufficient evidence before the Commission: see as to the proper approach for construing the plain words of legislation Heydon J in Fish v Solution 6 Holdings Limited (2006) 80 ALJR 959. 47 Further, we consider that North J in AMIEU v Belandra (2003) 126 IR 165 (at 181) correctly stated the purpose of the reverse onus provisions as follows: In advancing the objects of freedom of association, Parliament has taken a view about the proper balance between the parties in relation to the discharge of the obligation of proof. Conduct is treated differently from the reasons for it. A reverse onus on the issue of the reason for conduct makes good sense because the reason for the conduct is a matter peculiarly within the knowledge of the respondent.

48 Finally, we come to the submissions of Mr Dixon SC that a particular test should be imposed in determining causation; that test requires a distinction to be drawn between the immediate reason for the conduct and the proximate reason citing authorities to support this test.

49 The primary authority relied on by the appellant in support of this contention was again the dissenting judgment of Finkelstein J in Greater Dandenong, an appeal involving a question as to whether the Council's outsourcing arrangement amounted to a contravention of s298L, in which Finkelstein J stated: [T]he trial judge may not have drawn a sufficient distinction between the immediate reason (motive or purpose) for the dismissals or the acceptance of the tender, and the proximate reason (cause) which explained why that action was undertaken … 50 Finkelstein J then considered the factual findings and disagreed with the inferences Madgwick J at first instance had drawn from those findings such that Madgwick J erred in finding a prohibited reason. In the same case, Wilcox J reached his decision without reference to the distinction enunciated by Finkelstein J and Merkel J in addressing the question of fact as to the determination of the operative reason or reasons distinguished between the cause of the prejudicial conduct and the employer's reason or reasons for engaging in that conduct. Merkel J noted that there can be a significant difference between the employer's subjective reason for engaging in prejudicial conduct and the objective circumstances that led to the employer engaging in the conduct. 51 Mr Dixon SC also referred us to the decision of Branson J in Maritime Union of Australia. With regard to the Greater Dandenong decision, Branson J noted: 54 It is difficult, if not impossible, to identify the ratio decidendi of Greater Dandenong. However, two members of the Full Court (Merkel and Finkelstein JJ) concluded that the learned primary judge had erroneously failed to distinguish between the operative (or immediate) reason for the Council's conduct and the cause (or proximate reason) for the Council's conduct. While, as it seems to me, this distinction may in many cases be easier to articulate than to draw, especially in respect of a statutory provision that recognises the possibility of a number of reasons having a causal connection with conduct, I consider that I should be guided by the approach taken by Merkel and Finkelstein JJ who constituted a majority of the Full Court in Greater Dandenong on this issue. I am fortified in my decision to adopt this approach by the fact that the approach appears to me to be consistent with that adopted by R D Nicholson J in MUA v Geraldton (see [43] above). 55 Adopting the approach identified above, I am satisfied that the Company has proved on the balance of probabilities that the operative or immediate reason (or perhaps reasons) for the conduct of the Company with which this proceeding is concerned was Mr Jones' desire that each of the CSL Pacific and CSL Yarra should have the flexibility to trade as part of the CSL International fleet not only on the Australian coast but elsewhere in a cost effective way. I do not doubt, indeed Mr Jones did not deny, that in the process of reaching his decision that the CSL Yarra should be sold and reflagged, he gave consideration to the cost differential between an Australian crew and a foreign crew. As mentioned above, that cost differential flows from the content of the industrial instruments. However, it is necessary for me, as R D Nicolson J pointed out in MUA v Geraldton (see [42] above), to characterise the Company's reasons, which in this case are in reality Mr Jones' reasons. This exercise of characterisation involves, as his Honour observed, questions of judgment. In my judgment, part of the reason (or perhaps one of the reasons) for Mr Jones' decision was the desirability, as he saw it, of the CSL Yarra being able to be used in a cost effective way. I am satisfied that he considered that the freedom to crew the CSL Yarra with a crew which did not enjoy the protection of the industrial instruments would contribute significantly to the cost effective utilisation of the vessel. However, it seems to me that the fact that the crew of the CSL Yarra were entitled to the protection of the industrial instruments, while in part a cause of the decision taken by Mr Jones, was not an operative reason for his decision in the sense identified in [54] above. The relevant operative reason, I find, was the need to be able to utilise the vessel in a cost effective way. 52 The appellant also referred us to the decision of Goldberg J in Australian Workers' Union and Another v John Holland Pty Ltd [2001] FCA 93, which also involved a consideration by a Judge of the Federal Court of s298V of the Workplace Relations Act 1996, as supporting the use of a distinction drawn by Finkelstein J. We do not consider the judgment of Goldberg J applies the distinction drawn by Finkelstein J as, on the facts, Goldberg J was able to conclude that the respondent proved that it did not dismiss the employee because of the alleged prohibited reason (in that case because he was a member of the AWU). Accordingly, the circumstances of that case may be distinguished from the present matter as the respondent was able to prove that it did not terminate the employee's employment for a prohibited reason. 53 Mr Dixon SC also referred us to the decision of North J in AMIEU v Belandra (to which reference has been earlier made), which related to a question whether a union member had been victimised by a refusal of employment. In the course of his decision, North J analysed the judgments in Greater Dandenong and the decision of Branson J in MUA v CSL and concluded:

The respondents, rightly, accepted that the existence of the necessary causal connection will involve questions of judgment and characterisation. By referring to a distinction between a reason for an action and a cause of the situation which an employer seeks to address, Merkel and Finkelstein JJ in Greater Dandenong did not establish any principle to be applied to the construction of the section. They merely engaged in a process of characterisation of the particular facts before them. In the end, the question remains whether the conduct was carried out "because" of the specified conduct. 54 We agree. We consider that North J in AMIEU v Belandra correctly states the position under the victimisation provisions in the WRA and by analogy, s210 of the Act, as being a process of characterisation of the particular facts with the question being whether the conduct was carried out "because" of the specified conduct. After examining the authorities to which we were referred, we would add that we do not consider it necessary or helpful to adopt the distinction made by Finkelstein J for the purposes of analysis in victimisation cases as that test, in our view, is contrary to the requirements of s210(2), as we have earlier discussed. Section 210(2) provides that an employer may rebut the presumption as to the alleged "matter" (the cause) by demonstrating that the substantial and operative cause of the detriment suffered by an employee was not an act of victimisation for the purposes of s210(1). 55 Finally, we note that the approach of the majority of the High Court in Purvis v New South Wales Department of Education and Training and Another (2003) 217 CLR 92 as to a "because" test in the context of anti-discrimination legislation, to which the appellant referred us, supports the approach we consider correct. 56 In Purvis, the High Court was required to consider, inter alia, whether a student had received less favourable treatment "because of" his disability. The majority judgment of Gummow, Hayne and Heydon JJ stated: For present purposes, it is enough to say that we doubt that distinctions between motive, purpose or effect will greatly assist the resolution of any problem about whether treatment occurred or was proposed "because of" disability. Rather, the central question will always be - why was the aggrieved person treated as he or she was? If the aggrieved person was treated less favourably was it "because of", "by reason of", that person's disability? Motive, purpose, effect may all bear on that question. But it would be a mistake to treat those words as substitutes for the statutory expression "because of".

57 The appellant contended that this approach is similar to Finkelstein J's approach of distinguishing between the immediate cause or reason and the proximate cause with the focus on the "why" being akin to focussing on the immediate cause rather than the proximate cause. However, we do not consider that the focus on ascertaining the reason why the relevant conduct occurred supports the distinction erected by Finkelstein J.

58 For the reasons outlined, we are satisfied that the appeal should fail and Murphy C's decision and orders should stand.

ORDERS 59 We make the following orders: (1) Leave to appeal is granted in so far as it relates to the operation of s210 of the Act. (2) Leave to appeal is refused in so far as it relates to the terms or form of the orders made by Murphy C. (3) The appeal is dismissed. (4) The stay of the decision at first instance is dissolved.

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