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Howell, Anthony --- "General protection provisions: the reverse onus of proof" [2016] PrecedentAULA 48; (2016) 135 Precedent 38


GENERAL PROTECTION PROVISIONS: THE REVERSE ONUS OF PROOF

By Anthony Howell

This article briefly discusses the operation of a feature of the general protection provisions in Part 3-1 of the Fair Work Act 2009 (Cth) (FW Act), often referred to as the reverse onus of proof, in light of a relatively recent judgment of the Full Court of the Federal Court in Construction, Forestry, Mining and Energy Union v Anglo Coal (Dawson Services Pty Ltd) [2015] FCAFC 157 (Anglo Coal). Special leave to appeal to the High Court was refused on 23 June 2016.

BACKGROUND

Since their inception,[1] federal workplace laws have included a scheme of protection against victimisation for employees that are members or officials of an industrial organisation (such as a union), and that have what are now generally referred to as workplace rights.[2] Historically known as freedom of association provisions, their most recent evolution (found in Part 3-1 of the FW Act, entitled ‘general protections’[3]) has significantly expanded the areas of protection.

For those unfamiliar with them, there are (broadly described) general protections against adverse action in relation to workplace rights and the exercise of those rights (Division 3); freedom of association and involvement in lawful industrial activities (Division 4); protection against discrimination and dismissal for temporary absence due to illness or injury[4] (Division 5);[5] and protections relating to ‘sham’ employment arrangements (Division 6). They variously apply to employees, prospective employees and, in some circumstances, independent contractors.[6] Division 7 sets out rules associated with establishing contraventions of the general protections, and Division 8 outlines some of the procedural matters associated with enforcing the Part 3-1 protections.

The protections in Part 3-1 are one species of civil remedy provision[7] under the FW Act, contravention of which may be brought in one of a number of specified courts (including the Federal Court, the Federal Circuit Court, or an ‘eligible state or territory court’).[8] Broadly described, if the court finds a contravention, it has a broad discretionary power to make orders for compensation, injunctions (including an interim injunction), and pecuniary penalty orders.[9]

The Full Federal Court judgment in Anglo Coal looked at the operation of one of the key parts of the General Protections scheme that plaintiff lawyers appear to find particularly beguiling (the reverse onus of proof in s361), through the prism of proceedings alleging contraventions of the workplace rights protections.

Again for those unfamiliar, an employee is protected against adverse action[10] being taken against them by their employer because they have[11] a workplace right,[12] because they have (or have not) exercised a workplace right,[13] or to prevent the exercise of a workplace right by the employee.[14] The concept of a workplace right for this purpose is defined in s341 of the FW Act and includes the fact that a person is ‘able to initiate, or participate in, a process or proceedings under a workplace law or a workplace instrument’; that they are able to make a complaint or inquiry in relation to their employment; and importantly for present purposes, that a person ‘is entitled to the benefit of ... a workplace law, workplace instrument or order made by an industrial body’: s341(1)(a).

Where there are multiple reasons for taking adverse action, it is sufficient if only one of those reasons contravenes the protections under the Act: ‘a person takes action for a particular reason if the reasons for the action include that reason’.[15] Nonetheless, the use of the word ‘because’ has been read to mean that the reason must be a substantial and operative reason for taking the adverse action.[16]

It is in that framework that we find s361, entitled Reason for action to be presumed unless proved otherwise’. It relevantly provides:

(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 that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise.

The rationale for this presumption is fairly self-evident: it is to cast upon the employer the onus of proving that which lies peculiarly within her or his own knowledge.[17] As the Explanatory Memorandum to the Fair Work Bill 2008 explained at [1461], ‘[t]his 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’.

Effectively, it operates in this way: an employee must prove that they have been the victim of adverse action, and must prove that they had a workplace right (or had exercised a workplace right, etc). The employee alleges that the adverse action was taken for the reason, or for reasons that include, that the employee had or had exercised the workplace right. In contravention proceedings, the allegation that adverse action was taken for a prohibited reason (or for reasons that included a prohibited reason) gives rise to a rebuttable presumption that the conduct was engaged in for that reason. In practical terms, the rebuttable presumption will stand unless the employer proves to the contrary (as may happen, for example, if the employer fails to call evidence from the decision-maker).[18]

Section 361 does not relieve the applicant in the proceedings from proving on the balance of probabilities each of the ingredients of the contravention, but it enables the allegation to stand as sufficient proof of the fact unless the employer proves otherwise.[19]

It sounds simple, but a difficulty arises because it has been held that the simple fact that the workplace right or its exercise is concurrent with or is in some way factually connected to an employer’s reason for the taking of adverse action does not necessarily mean that the workplace right or its exercise (or some other characteristic protected under Part 3-1) formed part of the substantial and operative reasons for the taking of adverse action.

It is the subjective reason/s of the decision-maker that are critical (or more accurately, what the Court finds those reasons to have been).

HIGH COURT CASES

The two leading High Court authorities illustrate the point. Each arose in proceedings in which the applicant alleged that their employer had taken adverse action against them because they had engaged in an industrial activity.[20]

Bendigo Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500; [2012] HCA 32 arose from an employee, who was also an elected official of the Australian Education Union (the AEU), having sent an internal email in his capacity as a union official to a large number of employees indicating that some union members had reported being witness to or had been asked to participate in misconduct in the context of a forthcoming audit of the institute’s activities. The email advised them of what they ought do, including that they should contact the union if they were pressured to engage in misconduct. It does not appear to have been doubted that the sending of the email, under the hand of the employee in his position as a union official, was an industrial activity as defined. Four days later, the employer suspended the employee (on pay) and he was asked to show cause why he ought not be the subject of disciplinary action for serious misconduct. Proceedings were commenced in the Federal Court shortly thereafter, alleging that the suspension (and various other aspects of what was done by the employer at that time) was an adverse action imposed because or for reasons that included that the applicant was an officer of the AEU and had engaged in industrial activity, contrary to the protection in s346 of the FW Act (the substantive protection in Division 4 of Part 3-1).

The evidence of the decision-maker, accepted by the court at first instance, was that the adverse action which was the subject of complaint was taken because of a concern that the union official, an employee, had breached the code of conduct by failing to act as required when he became aware of misconduct, and that the employer would have treated any other employee who was not a union delegate in the same way if they had done the same thing.

The High Court reaffirmed (to use the joint reasons of French CJ and Crennan J as the focus) that the section ‘involves consideration of the decision-maker’s “particular reason” for taking adverse action’ (at [42]); that ‘direct evidence of a decision-maker as to state of mind, intent or purpose will bear upon the question of why adverse action was taken, although the central question remains ”why was the adverse action taken?”(at [44]); and emphasised that this question is one of fact, which must be answered in the light of all the facts established in the proceedings’ (at [45]). French CJ and Crennan J also rejected the contention that in order to displace the reverse onus, the employer has to show that the reasons for the adverse action were entirely dissociated from a protected industrial activity (at [6], [61]–[62]).

Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2014] HCA 1 (BHP) was more complicated, but in substance the High Court reaffirmed the ‘reason’ for the taking of adverse action as the central element to establish the contravention (via the rebuttable presumption or otherwise), was the particular reason of the decision-maker. To paraphrase an observation made in the joint judgment of French CJ and Kiefel J (at [16]), these provisions require ‘a determination of fact as to the reasons which motivated the person who took the adverse action’.[21]

Without evidence of the decision-maker, it will be extremely difficult to discharge the rebuttable presumption. Even if such evidence is led, the court is not obliged to accept it (‘It may be unreliable for a number of reasons. For example, other objective evidence may contradict it’[22]). An illustration of the failure to discharge the respondent’s onus, despite evidence from the decision-maker, can be found in Construction, Forestry, Mining and Energy Union v Hail Creek Coal Pty Ltd [2016] FCA 199. But if a decision-maker gives credible evidence of the reason for the taking of the adverse action, it is accepted, and it demonstrates that the substantial and operative reasons for the taking of the adverse action was/were not prohibited, the action will fail.

In each of these cases, a logical distinction could be drawn (as the trial judge did in each case, accepting evidence from the relevant decision-maker as to their reason for imposing adverse action) between the fact that the relevant employee was a union official or a union member and was engaging in lawful industrial activity organised by or under the auspices of the relevant union, and what the employee did in that connection. To use a simple illustration, the general protections do not operate as a cloak to protect a union delegate from sanction by an employer trying to establish appropriate standards of workplace behaviour, if the delegate abuses a colleague or their boss in the context of a union meeting at a workplace. Given that the focus of the protections is on the subjective reasons (or motivation) of the decision-maker, one can logically understand how a distinction can be drawn between the fact that a person has exercised a workplace right and the manner of its exercise.

HONEST BUT MISTAKEN BELIEF

But what of a circumstance where one cannot logically draw that distinction? More particularly, what if the subjective motivations of the employer are based on an honest but mistaken belief as to the true circumstances of an employee?

Two recent decisions of the Full Federal Court[23] highlight the care that needs to be taken when pleading and running adverse action cases and the problems that may befall an applicant in such litigation.

In the more recent decision in Anglo Coal, the court examined the operation of the reverse onus where adverse action was taken as a consequence of an honest but ultimately mistaken belief by an employer as to an employee’s conduct.

CFMEU v Anglo Coal

The Construction, Forestry, Mining and Energy Union (the CFMEU) brought proceedings in the Federal Court alleging that the summary termination of one of its members (Mr Byrne) by Anglo Coal contravened the general protection of employees against adverse action by their employer for exercising a workplace right in the form of sick leave under an enterprise agreement. It also alleged a breach of contract (characterised by Jessup J in the Full Court as a conventional wrongful dismissal case[24]). Each aspect of the case failed at trial. A majority of the Full Court lead by Jessup J (with whom Rangiah J agreed) dismissed the appeal against the dismissal of the general protections claim, but upheld the appeal against the wrongful dismissal claim (albeit no damages were claimed). Buchanan J gave a dissenting opinion in relation to the general protections claim, but agreed with Jessup J in upholding the appeal in relation to the contract claim.

Mr Byrne was dismissed after he had failed to attend two rostered shifts over the Anzac Day long weekend in 2014. He had obtained a medical certificate from his treating GP (which he provided to his employer as required) that on its face confirmed he was ill and would be absent for a period that included those two shifts due to his illness. However, a few days before this absence, Mr Byrne had requested and been denied annual leave for those shifts. Having been denied annual leave, he spoke to the mine superintendent who had told him his annual leave had been denied because of operational needs. An argument ensued, in the course of which, Mr Byrne (in the version accepted by the trial judge) had said ‘Fine, I’m going to be sick anyway’; that he would get a medical certificate; and that his employer would ‘find it very hard to challengethat. He was warned at that time that if that were to occur, he and the mine superintendent would ‘have to have a completely separate discussion based on the discipline policy’. Mr Byrne was absent and, as noted above, obtained a medical certificate.

Mr Byrne was, according to the letter of termination, dismissed immediately for serious misconduct. At trial, the reasons given by the decision-maker for the dismissal were (in substance) that the decision-maker had thought that Mr Byrne had been dishonest in his claim to have been ill on the days he was absent; that he had engaged in serious misconduct by claiming to be absent due to illness when in fact he was not; that when called to explain himself he had not shown any remorse for his behaviour, and as such had irreparably damaged the employment relationship. The decision-maker did not attach any significance to the fact that Mr Byrne had obtained a medical certificate (he apparently considered it easy to get a medical certificate when not in fact ill, because a doctor substantially relies upon a patient self-reporting symptoms). The trial judge also accepted evidence from the decision-maker that but for the conversation about being sick and obtaining a medical certificate prior to taking sick leave, there would not have been an issue with the fact Mr Byrne had taken sick leave.

The trial judge, having heard evidence from Mr Byrne and his treating GP, found that Mr Byrne was in fact ill on the days he was absent (it seems Mr Byrne had an underlying respiratory medical condition that flared up in certain circumstances known to him and his GP and followed something of a predictable pattern when it did – which was how Mr Byrne knew he would be sick on those days in advance). That finding was not challenged on appeal.[25]

And so the questions presented were whether Mr Byrne had been absent from work on the relevant shifts because of illness and, if so, whether he was dismissed from his employment because of or for reasons that included that fact. The employer had dismissed him on the genuine belief, albeit on the findings of the trial judge the wrongful belief, that Mr Byrne had been dishonest in claiming to be ill when he in fact was not ill and absent when not entitled to be. The trial judge had found as a matter of fact that Mr Byrne was in fact ill, which meant that he had been entitled to be absent on sick leave on those days (sick leave being a benefit under a fair work instrument that applied to him).

There were two grounds of appeal. The first can be disregarded for present purposes. The second ground (broadly described) was that the trial judge should not have accepted the evidence of the decision-maker, or that it discharged the employer’s onus of proof. Additionally, albeit not a ground of appeal, it appears an argument proceeded before the Full Court to the effect that, objectively, the acceptance of the decision-maker’s evidence meant the rebuttable presumption ought not to have been found to be discharged because, objectively assessed, one of the reasons of the decision-maker was the fact that Mr Byrne had not been entitled to be absent on the relevant shifts.

Jessup J, who gave the leading judgment for the majority, concluded that the trial judge was not wrong to have accepted the decision-maker’s evidence as to the reasons he dismissed Mr Byrne, or that the rebuttable presumption in s361 was thereby discharged. As to the former, having emphasised that the enquiry was into the subjective reasons of the decision-maker (referring to Barclay), his Honour observed (at [36]):The simple fact was that [the decision-maker] said that he believed neither Mr Byrne nor [the treating GP who provided the medical certificate], and her Honour accepted that he was telling the truth in this regard. Once that bar was crossed, the conclusion that Mr Byrne’s absence on account of illness was not a reason why he was dismissed by [the decision-maker] followed almost as a matter of course. It was not “glaringly improbable” or “contrary to compelling inferences”: if anything, the contrary’. His Honour referred (at [37]) to the additional argument that the trial judge ‘ought to have found that Mr Byrne was dismissed because of his absence from work on account of illness because, objectively, he was absent for that reason and that absence was a factor in [the decision-maker’s] reasons for his decision to dismiss’, but accepted an apparent concession by counsel for the appellant that such an argument was not open in light of the reasoning in Barlcay and BHP.

Rangiah J, who agreed with Jessup J, identified (at [127]) the trial judge as having ‘distinguished between ... dismissal because [the decision-maker] believed that Mr Byrne was acting dishonestly by taking sick leave when he was not sick ... and dismissal because Mr Byrne had taken sick leave’. His Honour referred to some of the purple passages from BHP Coal and Barclay and observed (at [132]): ‘In the present case, Mr Byrne’s dismissal was certainly connected with his taking sick leave. There was a causal nexus. If Mr Byrne had not taken sick leave, then he would not have been dismissed. However, that does not necessarily mean that Mr Byrne was dismissed because he took sick leave. The word “‘because’” in s340(1) and s352 requires an enquiry as to the operative and immediate reason or reasons for his dismissal’. His Honour observed (at [134]) that ‘the question of what the employer’s reasons for dismissing Mr Byrne were must be considered on the basis of what the employer knew or believed at the time of the dismissal’. Here, on the findings of the trial judge, the employer held an honest but mistaken belief that Mr Byrne was being dishonest in claiming to be ill when he was not. In those circumstances, the trial judge had not erred in accepting the rebuttable presumption had been discharged. Rangiah J did go on to express some concern that the outcome was unjust (at [136]): ‘After all, Mr Byrne was genuinely sick and was entitled to take sick leave; and his dismissal came about through Mr Power’s mistaken, although honest, belief that Mr Byrne was not sick.’ He disposed of that concern on the basis that a ‘tactical decision’ had been made to engage Part 3-1 of the Fair Work Act rather than the unfair dismissal provisions (his Honour noting if similar factual findings had been made ‘it seems inevitable that his dismissal would have been regarded as harsh, unfair or unjust, and that he would have been reinstated’).

Buchanan J, on the other hand, found that there had been a contravention and would have upheld the appeal, observing (at [50]): ‘My conclusion that Mr Byrne was dismissed because he exercised a workplace right and because he was temporarily absent from work because of illness is based upon the factual findings of the primary judge, but I differ from her Honour about the legal significance of those factual findings.’

His Honour outlined the facts, including elaborating on the summary from the trial judge’s reasons by reference to the decision-maker’s affidavit evidence, and observed (at [69]) that ‘On the findings made by the primary judge, Mr Byrne was entitled to sick leave on [the relevant shifts] and was entitled to be temporarily absent from work on those days.’ The employer’s view to the contrary was wrong. His Honour observed (at [72]):

In my view, it is not incorrect to say that Mr Byrne was dismissed because he exercised a workplace right (ie took sick leave to which he was entitled) and because he was temporarily absent from work on account of illness. It may also be true to say that Mr Power’s immediate, or conscious, motivation did not extend so far – ie, his subjective reasons did not. However, in an appropriate context, objective circumstances may also provide reasons (I do not, in the present case, suggest subconscious ones) which give context and meaning to what is done and which cannot realistically be separated, divorced or disconnected from the action under examination.’

His Honour set out s360 (which provides a person takes action for a particular reason if the reasons for the action include that reason’), and continued (at [74]):

‘In my respectful view, it is clear from Mr Power’s evidence which I extracted earlier that there were two fundamental and equally important reasons for his decision: Mr Byrne’s conduct on 24 and 25 April 2014 in absenting himself from work; and Mr Power’s attribution of dishonesty to that conduct. Absent either feature there would have been no dismissal. In particular, Mr Byrne was not dismissed because he said he would be absent; he was dismissed because he was, in fact, absent. He was dismissed because he exercised a workplace right which he did, in fact, have.’

His Honour referred to passages from Barclay and observed (at [86]–[89]):

‘In my view, Mr Byrne’s absences and the reason for the absences (ie, sick leave) were indispensable factors in the overall circumstances, even if the entitlement to be absent was not recognised or accepted by [the decision maker]. Mr Byrne was only dismissed because he was absent. He was dismissed because he exercised a workplace right; not independently of it. ... In my respectful view, it was an important part of [the decision-maker’s] disclosed reasoning that Mr Byrne had absented himself, even though he misunderstood the factual and legal significance of that circumstance, according to the findings of the primary Judge. In my view, a misunderstanding of that kind does not break the causal connection otherwise present, nor serve to illustrate that the workplace right (which was in fact exercised) was an irrelevant consideration.’

Having referred to some of the reasoning in BHP, his Honour distinguished that decision on the basis that (at [93], [94] and [97]):

‘In the present case, the absences were an integral factor explaining the decision. It may be accepted that [the decision maker] attributed a character and significance to the absences which did not recognise that they gave effect to a workplace right, but in my respectful view the search for the true or actual reasons of a decision-maker does not mean that the decision can be immunised by misunderstanding or incorrect characterisation of the underlying facts, if those facts are part of the explanation for the decision itself. In the present case, [the decision-maker’s] decision actively denied the exercise by Mr Byrne of his workplace right by visiting upon him a consequence which would have unarguably breached the FW Act if done directly ... In my view, the decision cannot be protected upon such a basis where, upon the findings made by the primary Judge, mistake and misconception served as immunity against otherwise illegal conduct...In the present case, to repeat what has already been said, the absences were integral to Mr Power’s reasoning. At the very least, they were a part of the reason for dismissal. Mr Byrne expressly claimed the benefit of the workplace right. The absences were in fact (and by law) protected. In my respectful view, those matters should not in the analysis be so completely merged with Mr Power’s misunderstanding about the legal rights involved so as to become indistinguishable from his (separate) conclusion that Mr Byrne was acting dishonestly or deceitfully.’

Of course, it was the fact the dismissal was summary (not on notice) and based on a mistaken belief that an employee had engaged in serious misconduct that resulted in the dismissal being found to be in breach of contract and wrongful (see [41]–[43]). Unfortunately for Mr Byrne, he had abandoned his claim for damages for wrongful dismissal (damages in any event being limited to a matter of weeks).

And so it was that the hapless Mr Byrne, despite having endured a trial and successful appeal in which it was unanimously found he had been wrongfully dismissed, apparently obtained no personal benefit other than the vindication of knowing that he had lawfully taken sick leave on the Anzac Day long weekend in 2014; that he had not acted dishonestly; and that to have dismissed him was in breach of his contract of employment. To add insult to injury, it was drawn to his attention (at least on the observations of Rangiah J) that had a different course been taken, he may well have been able to secure his job back.

CONCLUSIONS

What then should a plaintiff lawyer draw from all this? Other than an appreciation that we perhaps have some way to go before we achieve the object of a ‘balanced framework for co-operative and productive workplace relations’ that is, among other things, ‘fair to working Australians’ (s3), the decision in Anglo Coal (and the earlier authorities canvassed in the judgment) should serve as a reminder that the general protections provisions, while having evolved and broadened in their scope since their initial formulation more than 100 years ago, are still directed to addressing a very specific and narrow type of wrong.

While no doubt still an important feature of the scheme of the FW Act, a plaintiff lawyer may find the general protection provisions useful more as an adjunct to a claim based on some other ground (such as a breach of contract), as of themselves they can be extremely difficult to establish despite the beguiling prospect of a reverse onus of proof in a (usually) no-cost jurisdiction. After all, there is no defence of honest and reasonable mistake to a breach of contract (as the Court in Anglo Coal helpfully reiterated).

If a client is genuinely interested in reinstatement, a more practical, cost-effective and on one view expeditious approach may well be to pursue relief for an employee aggrieved by their termination in proceedings before the Fair Work Commission alleging unfair dismissal. A dismissal in contravention of the general protections would be unlawful and certainly not provide a ‘valid’ reason for dismissal (see s387). Even if a contention in that respect is not established, as Rangiah J poignantly highlighted in Anglo Coal, the dismissal may still nonetheless be harsh, unjust and unreasonable, resulting in a remedy (reinstatement being, at least in theory, the first of the options available).

Anthony Howell is a barrister at HB Higgins Chambers, Sydney. PHONE (02) 9223 3633 EMAIL Howell@hbhiggins.com.au


[1] The first form of these provisions was introduced in the Commonwealth Conciliation and Arbitration Act 1904 (Cth), renamed the Conciliation and Arbitration Act 1904 (Cth) by the Conciliation and Arbitration Act 1950 (Cth), s3. One of the early decisions of the High Court in this connection was Pearce v W D Peacock & Co Ltd [1917] HCA 28; (1917) 23 CLR 199.

[2] Initially confined to an employee ‘entitled to the benefit of an industrial agreement or award’: see s9(1) of the Commonwealth Conciliation and Arbitration Act 1904.

[3] Similar provisions exist in state legislation: see, for example, Part 1 of Chapter 5 of the Industrial Relations Act 1996 (NSW); Chapter 4 of the Industrial Relations Act 1999 (Qld); Part 1 of Chapter 4 of the Fair Work Act 1994 (SA).

[4] See s352 of the Fair Work Act and cl 3.01 of the Fair Work Regulations 2009.

[5] Division 5 protects other matters of a different character, recognised by the generic title ‘Other Protections’.

[6] Noting, by way of illustration, the protection against adverse action in connection with having and/or exercising and/or proposing to exercise (or not exercise) a workplace right (s340) operates to protect ‘a person’ who has a workplace right: see also the definition of ‘adverse action’ in s342.

[7] See s539(1) and Column 1 of Table embedded in s539.

[8] Defined in s12.

[9] There are differences between the powers given to eligible state or territory courts and each of the federal courts.

[10] Defined in s342 Item 1 as dismissing the employee (1)(a), injuring the employee in his or her employment (1)(b), altering the position of the employee to the employee’s prejudice (1)(c), or discriminating between the employee and other employees of the employer (1)(d). In Patrick Stevedores v MUA [1998] HCA 30 195 CLR at 18, the majority described the predecessor to s342(1)(b) as covering ‘injury of any compensable kind’, and the predecessor to s342(1)(c) as ‘a broad additional category which covers not only legal injury but any adverse affection of, or deterioration in, the advantages enjoyed by the employee before the conduct in question’. See under the Fair Work Act, among others, [2012] FCAFC 63 at [30]- [32]. A useful summary of principle can also be found in the judgment of Perry J in Transport Workers Union of Australia v Premier Motor Service Pty Ltd [2015] FCA 650 at [31]- [37].

[11] Section 340(1)(a)(i).

[12] Defined in s341.

[13] Section 340(1)(a)(ii).

[14] Section 341(1)(b). There is also a prohibition against a person taking adverse action against another person (the second person) because a third person has exercised, or proposed to exercise, a workplace right for the benefit of the second person (or for the benefit of a class to which the second person belongs): s341(2).

[15] Section 360.

[16] Bendigo Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500; [2012] HCA 32 at [53]- [59], [65], [103]-[104].

[17] General Motors-Holden Pty Ltd v Bowling (1977) 51 ALJR 235 (Bowling) at 241 (Mason J) (approved in Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32; (2012) 248 CLR 500 (Barclay) at 520 [50] (French CJ and Crennan J), 527 [77] and 535-6 [105]-[106] (Gummow and Hayne JJ)).

[18] See, for example, Barclay at [45], referring to Bowling at 241 per Mason J.

[19] Short v Ambulance Victoria [2015] FCAFC 55 at [56]; Davids Distribution Pty Ltd v National Union of Workers [1999] FCA 1108 at [109].

[20] Within the meaning of s346 of the Fair Work Act.

[21] Similarly, see Short v Ambulance Victoria [2015] FCAFC 55 at [56].

[22] At [8] per French CJ and Kiefel J; [56] per Crennan J.

[23] Anglo Coal and Construction Forestry Mining and Energy Union v Endeavour Coal Pty Ltd [2015] FCAFC 76. Special leave to appeal to the High Court was refused from the Endeavour Coal judgment on 11 December 2015: [2015] HCA Trans 331.

[24] At [3].

[25] As noted by Jessup J at [9].


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