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Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [ 2014] HCATrans 189  (3 September 2014)

Last Updated: 4 September 2014

 [2014] HCATrans 189 

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B23 of 2014

B e t w e e n -

CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION

Appellant

and

BHP COAL PTY LTD

Respondent

FRENCH CJ
HAYNE J
CRENNAN J
KIEFEL J
GAGELER J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON WEDNESDAY, 3 SEPTEMBER 2014, AT 2.02 PM

Copyright in the High Court of Australia

MR H. BORENSTEIN, QC: I appear with MS C.M. HOWELL for the appellant. (instructed by Hall Payne Lawyers)

MR B.W. WALKER, SC: May it please the Court, I appear with my learned friends, MR I.M. NEIL, SC and MR R.P.P. DALTON, for the respondent. (instructed by Ashurst Australia)

FRENCH CJ: Yes, Mr Borenstein.

MR BORENSTEIN: If the Court pleases, we have handed up our propositions document. The Court will see from that that the essential question in this appeal is whether the Full Court upheld the appeal on a basis that was inconsistent with the guidance given by this Court in the Barclay Case.

The circumstances giving rise to the litigation involve the dismissal of a Mr Doevendans after he attended a lawful union protest in May 2012. At that protest, from time to time, he held and waved a sign which the union had provided as part of organising the protest, and that sign had the words “No Principles, Scabs, No Guts”. Following his dismissal, the appellant brought proceedings for his benefit, as it is entitled to do under the Fair Work Act, in respect of his dismissal, and the allegation was made under section 346 of the Fair Work Act. The relevant sections of the legislation are appended to our initial submissions, and 346 of the Fair Work Act prohibits a person from taking:

adverse action against another person because the other person –

relevantly in subparagraph (b):

engages, or has at any time engaged or proposed to engage, in industrial activity within the meaning of paragraph 347(a) or (b) –

The notion of “adverse action” is not in controversy in this proceeding. It is defined in section 342 of the Fair Work Act, and it includes the act of termination of employment. There is no controversy about the fact that adverse action has occurred. The controversy is around the reasons for the taking of that adverse action. As your Honours see, paragraph (b) of the section brings up the concept of engaging in industrial activity, and that is defined in section 347 of the Act. Relevantly, it provides that:

A person engages in industrial activity if the person:

. . .

(b) does, or does not:

. . .

(iii) encourage, or participate in, a lawful activity organised or promoted by an industrial association –

and I interpolate that the term “industrial association” is defined to include a trade union. The alternative limb of the complaint was under paragraph (v), does or does not –

(v) represent or advance the views, claims or interests of an industrial association –

Now, section 360 of the legislation, which is also in the copies which we have attached, provides that you can have more than one reason for the taking of action. It provides that:

For the purposes of this Part –

which includes section 346 –

a person takes action for a particular reason if the reasons for the action include that reason.

The reason must still be a substantial and operative reason, but it does not have to be the only reason. Then finally, section 361 creates a presumption against the perpetrator of the act, that the act was done for the alleged prohibited reason, unless that person can persuade the court that it was not. They are the relevant provisions of the Act.

The point that we would seek to make about, in particular, the relevant definitions of “industrial activity” is that in relation to paragraph (iii), it is lawful industrial activity organised by the union. The person who engages in it does not have to have any role in creating the activity or having anything to do with promulgating the activity. It is sufficient if the person participates, and that was the position of Mr Doevendans in this case. He was a participant in a lawful industrial activity organised by the union, and that industrial activity included not just standing by the roadside in an act of protest, but also the holding and the waving of signs from time to time, and the protest also included at other times the signs simply being left standing upright so that they were visible. Similarly, the views, under paragraph (v), the views and interests that are to be advanced are also the views and interests of the union.

At trial, the relevant decision-maker was identified as a Mr Brick, an employee of the respondent. He gave evidence about his reasons for dismissing Mr Doevendans, and those reasons are set out at paragraphs 28 to 30 of the trial judge’s judgment, which is at page 114 of the court book. Your Honours will see at paragraph 28 that the trial judge sets out the extract from – it is on page 130 of the appeal book – sets out the relevant parts of Mr Brick’s affidavit, and at paragraph 28 he explains the process by which he dealt with the disciplining of Mr Brick. It will be seen that the holding and the waving of the particular sign played a significant part in the decision-making process. Then at the bottom of that page - - -

FRENCH CJ: Except it was the terminology of the sign that was the actuating reason for his decision.

MR BORENSTEIN: Yes. It is what gave offence, in Mr Brick’s eyes, yes.

FRENCH CJ: Would it matter to your argument if some additional offensive epithet had been added?

MR BORENSTEIN: Some additional offence?

FRENCH CJ: Offensive epithet had been added to the sign; some intensifier of the word “scab”, for example.

MR BORENSTEIN: No, your Honour. I had not thought of any intensifier, I must say, but - - -

FRENCH CJ: Well, I will not - - -

HAYNE J: That is a very limited imagination, Mr Borenstein.

MR BORENSTEIN: I have been a lawyer for too long, your Honour. We are content to deal with it as it stands, if the Court pleases, but the point that we will ultimately make is that this is a case where Mr Doevendans was engaged in an activity which is defined as “industrial activity”. It is an activity which is explicitly protected by the Act, by section 347. It says participation in a lawful union activity is protected, and the demonstration which the union held was one for which they had a police permit. The evidence was that the police had attended and had satisfied themselves that it was lawful, and that included reviewing the text of the signs, and Mr Doevendans came along and participated.

We say that that is a point of significant distinction from the facts that arose in Barclay, because in substance, the facts that arose in Barclay were that Mr Barclay had sent an email complaining about what had happened in certain aspects of the administration of his employer. He happened to be the union official, and it was sought to complain that he had been disciplined wrongly because what he was doing, he was doing as a union official. The point of distinction we seek to make, and which we will make again shortly, is that the protection that was sought to be claimed for the email in the Barclay Case derived from the attribute or the status of Mr Barclay as a union official. That is why the decision-maker, Dr Harvey, was able to say “I would have acted on this email, even if the person was not a union official”, and she would have been able to act on that without question.

Here, the very activity for which Mr Doevendans was dismissed is explicitly protected. There is no explicit protection for emails under the Fair Work Act. There is no explicit protection for union delegates sending emails. There is here an explicit protection for attendance at a lawful activity arranged by a union.

HAYNE J: Well, it may be necessary to unpack what you mean by “activity”, because I think that the burden of your submission may ultimately turn on the fact that the activity was protest against non-participation in the industrial action that the union, what, had taken or was - - -

MR BORENSTEIN: Was taking.

HAYNE J: Was taking.

MR BORENSTEIN: Yes. We are happy to accept that as a description of the union activity, and it was lawful. There was no law, obviously, that prevents a union from taking protest action. As I said, they had a police permit to do it. They stood well away from the roadway, as the police required, and they waved their placards.

CRENNAN J: Well, the argument against you, so far as I understand it – and I am happy to admit I may not – seems to be that notwithstanding engagement in industrial activity, the unqualified acceptance by the trial judge of Mr Brick’s evidence precluded characterising the “scab” signs as falling within either (iii) or (v).

MR BORENSTEIN: Yes. I was going to come to that, and I will come to that immediately. The judge, as your Honours noted, made a finding based on the evidence which he set out noting the significant part that was played in the finding by the attention to the waving of the placard or the sign. He also noted at paragraph 30 that Mr Doevendans had given evidence that:

the fact that [Mr Doevendans] was engaged in industrial action or activity, did not play any part in his decision-making process.

He accepted that evidence, and that can be seen at paragraph 36 of the judgment. He goes on to say:

I accept the evidence of Mr Brick as to why he decided to terminate the employment of Mr Doevendans –

and refers back to paragraphs 28 to 31. Then he says –

His reasons, broadly, were that Mr Doevendans had held up, and waved at passing motorists, the scabs sign, which he, Brick, regarded as having the unacceptable attributes to which I have referred in para 22 above –

FRENCH CJ: Your debate is not about the correctness of that. It is about characterisation of the facts in relation to the relevant paragraphs (iii) and (v) 347, is it not?

MR BORENSTEIN: We have two complaints. The first complaint picks up the point that Justice Crennan raised a moment ago which was that, on what was said by your Honours in the Barclay Case, the identification of the reasons for taking adverse action is an exercise in fact-finding, and in the same way as the trial judge in Barclay made a fact-finding about the reason for which Mr Barclay was warned, or sanctioned, Justice Jessop here made a fact-finding about the reason why Mr Brick acted towards Mr Doevendans.

Now, the Full Court, certainly Justices Dowsett and Flick, said that once the evidence of Mr Brick was accepted, the evidence that I have just read to your Honours about the engagement in industrial activity not playing any part, that it was no longer open for the trial judge to find against the employer and our complaint about that is that when we look back at the two joint judgments in Barclay, in both of them it is expressly stated that a judge must look at all of the circumstances.

In Barclay’s case, the court was at pains to point out it was not an exercise of simply looking at the objective facts, but the court made the statement that it was necessary to look at all the circumstances, including the explanations given by the relevant decision-makers and come to a conclusion and indeed, in both of the joint judgments reference is made to what was said in Pearce’s case. In paragraph [54] of Barclay which is at tab 2 of the book of cases - - -

HAYNE J: Sorry, what paragraph?

MR BORENSTEIN: Paragraph [54], your Honour. I am sorry. In the middle of the paragraph, this is in the judgment of the Acting Chief Justice Barton with whom Justices Gavin, Duffy and Justice Rich agreed, and your Honour will see about six lines down:

A question arose as to whether the director's evidence was sufficient to satisfy the onus cast upon the employer. In deciding that the director's evidence was sufficient, the majority in Pearce recognised that mere declarations of an innocent reason or intent in taking adverse action may not satisfy the onus on an employer if contrary inferences are available on the facts.

You Honour Justice Hayne in the joint judgment with Justice Gummow, set out the actual passage at paragraph [79], from the Acting Chief Justice’s judgment. Now, we go back to paragraph [45] where your Honour the Chief Justice and Justice Crennan state that:

This question is one of fact, which must be answered in the light of all the facts established in the proceeding. Generally, it will be extremely difficult to displace the statutory presumption in s 361 if no direct testimony is given by the decision-maker acting on behalf of the employer. Direct evidence of the reason why a decision-maker took adverse action, which may include positive evidence that the action was not taken for a prohibited reason, may be unreliable because of other contradictory evidence given by the decision-maker or because other objective facts are proven which contradict the decision-maker's evidence. However, direct testimony from the decision-maker which is accepted as reliable is capable of discharging the burden upon an employer even though an employee may be an officer or member of an industrial association and engage in industrial activity.

KIEFEL J: What is the other circumstance that you point to as relevant to the reason for the action taken by the employer?

MR BORENSTEIN: The other circumstances that we point to are that this activity occurred as part of an organised industrial activity by the union of a kind envisaged under section 347, that the scab sign was part of the organisation by the union of that activity and that Mr Barclay was simply participating in that activity as he was entitled to do.

KIEFEL J: There are two aspects to that: so far as they are relevant to the employer’s reason, they have been met by the witness. What you really seem to be saying is that they are not relevant to the reason and it would appear to be your case that an employer is not entitled to take action against an employee, in relation to the conduct of an employee which occurs during the course of a lawful industrial action. That is the top and bottom of it, is it not?

MR BORENSTEIN: We say that the trial judge in relation to this question about having regard to all the circumstances was entitled to have regard to all of the reasons which were given, including the positive reasons which Mr Brick gave which were overwhelmingly to do with the waving of the sign.

To have regard to the place of that activity, in the industrial activity that had been organised by the union, and then to weigh that up with the assertion by Mr Brick that participation in industrial activity had nothing to do with it and he was faced then with a situation where the very conduct, the very action that had prompted the decision-maker in the first place to take steps against Mr Doevendans and then follow through, formed part of the protected industrial activity under section 347.

KIEFEL J: As a matter of fair procedure, I assume all of these things would have been put to Mr Brick in cross examination. That all of these matters did in fact impact upon the reason for the action taken and I assume he denied them.

MR BORENSTEIN: Well, our point really is that he certainly denied that industrial activity had anything to do with his decision. We must accept that. The judge found that.

KIEFEL J: The primary judge was entitled to draw an inference contrary to Mr Brick’s evidence and he did not.

MR BORENSTEIN: Well, he made a finding that was contrary to Mr Brick’s evidence. He made a finding on reviewing all of the material before him that Mr Bricks had terminated Mr Doevendans’ employment because of the sign. He made a finding that the sign was a part of the industrial activity and not something separate which seemed to be the view of Mr Brick and he accordingly found that there had been contravention on that basis.

Now, your Honour’s question leads me away from the submission I was making which was really prompted by Justice Crennan to the question which the Chief Justice asked about the recharacterisation of activity or conduct and that is the second part of what we want to advance and we put it on this basis, that where there is an explicit protection for specified conduct; say for example, the specific protection in the Fair Work Act against taking any detrimental steps against someone for participating in protected industrial action.

Now, that is explicitly protected under the Act. It would be unavailable to an employer to say, look you have elected to take protected industrial action and can I interpolate that the taking of protected industrial action is a discretionary choice for each employee. Your Honour may be aware that there is a process where you have to apply for a ballot that approves protected action and there is a vote taken of employees, but even after that vote, when notice is given that protected action is going to be taken of a particular kind and on a particular date, it is still a choice for each individual employee to take that protected industrial action. So, they are not forced to take it even if they voted for it.

So, if we have the scenario of protected industrial action occurring, say in the middle of a production run that causes a great deal of damage to an employer, the employer cannot say, I am going to sanction you or discipline you or sack you, because you disrupted my production run by taking the action because the action itself is protected and you cannot recharacterise it in terms of saying, well, I find it offensive that you have done that or it shows disloyalty and it is not consistent with our culture. You cannot do that because the Act explicitly protects that and we say that section 347 in relation to these two paragraphs does a similar thing.

In section 347(iii) it expressly protects someone from disadvantage by participating in a particular kind of activity and it is not an activity that that person creates or designs. It is an activity that the union can design and create and there is an explicit protection for the person who participates in that. Now, in Barclay I think the Chief Justice’s judgment with Justice Crennan referred to the historical balance that was sought to be struck in the legislation between the rights of employers and the rights of unions and union members, as part of setting up the initial industrial regime for Australia under the original legislation in 1904.

Now, part of that even back in 1904, was protecting the place of unions and union members. The protections were not as extensive as they are now, but at the same time in those days there was a different industrial regime. There was a centralised wage fixing regime and it was tailored to that. But when you look at 347(iii), it is a clear reflection of that sort of protection in the sense that it protects the union and its members from being able to interact and take steps.

KIEFEL J: But the protection surely does not extend to every action and thing said during the course of protected action.

MR BORENSTEIN: They have to be lawful.

KIEFEL J: That is all?

MR BORENSTEIN: Well, that is what the Act says.

KIEFEL J: Offensive conduct does not matter?

MR BORENSTEIN: Well, if it is lawful, that is all that the Act requires. My point really is this, your Honour. Whether it is offensive or it is not offensive, the activity and the signs and everything that went with it, is not the creation of Mr Doevendans. It is the creation of the union. That is why it fits into (iii). It is a lawful activity organised or promoted by the union. All that Mr Doevendans does is participate in it. If it is not a lawful activity, if it does not fall within that description in the section, then Mr Doevendans cannot be protected. But while it is - - -

FRENCH CJ: So does this mean that the finding that Mr Brick dismissed Mr Doevendans because of the offensive content of the sign, as a core reason, mandated in the circumstances, the conclusion that he was terminated because of his involvement in industrial activity?

MR BORENSTEIN: Because the sign was part of this activity.

FRENCH CJ: So it does not matter what the sign had said - - -

MR BORENSTEIN: As long it is lawful.

FRENCH CJ: As long it be characterised as part of the activity - - -

MR BORENSTEIN: - - - and lawful.

FRENCH CJ: Yes.

KIEFEL J: We are talking about industrial activity here. We are not talking about any kind of conduct that happens to occur in the course of it. I mean, he is holding a sign. That may be part of the activity, but what is said on the sign surely must stand apart from what is industrial activity if it has nothing - - -

CRENNAN J: Well, it might help to look at what Justice Kenny said about the sign but that gets to (v), rather than (iii).

MR BORENSTEIN: It does.

CRENNAN J: But Justice Kenny, in paragraph 63 of her judgment, 239, she analysed the sign as representing an interest - - -

MR BORENSTEIN: Yes.

CRENNAN J: - - - because it was expressing disapproval of workers who did not wish to join the collective industrial action, so there did not have to be a debate about whether it was offensive or offensive plus lawful or not offensive because lawful or anything of that order and she went from that to 64, logically, that that fell within (v) - - -

MR BORENSTEIN: Yes.

CRENNAN J: - - - without particularly being concerned with whether the sign fell outside lawful activity because it was too offensive or anything of that order, if you catch my drift.

MR BORENSTEIN: Your Honour, can I direct attention to paragraph 8 of the judgment, this is in the judgment of Justice Dowsett where he refers to the sign and the offensive nature of the sign and this is at paragraph 8 and he says:

I have some difficulty in accepting that the so-called “scab sign” can accurately be described as the representation or advancement of the views, claims or interests of an industrial association. It seems to me rather more like common sense –

HAYNE J: Common abuse. Common abuse, not common sense.

MR BORENSTEIN: I am sorry.

HAYNE J: There is a difference.

MR BORENSTEIN: Yes, certainly:

However I do not understand the appellant to challenge his Honour’s conclusions in that regard.

So, it appears the point was not raised before the Full Court and they proceeded on the findings of the trial judge in relation to that.

HAYNE J: That is why I say I think you have to unpack what you mean by “activity”. If “activity” is protest, relevantly, you would, as I understand it, say that the only limit to protest by the union and its members is whether it is lawful activity.

MR BORENSTEIN: Yes.

HAYNE J: In particular, there is no limit constituted by whether the protest is delivered in a fashion which insults or stings those to whom the protest is directed.

MR BORENSTEIN: Yes.

HAYNE J: But all that proceeds from unpacking what you say is the lawful activity in which the union was engaged - - -

MR BORENSTEIN: Yes.

HAYNE J: - - - and in which this member of the union was participating.

MR BORENSTEIN: Yes, that is right. That is right.

GAGELER J: I may have misunderstood, but I thought that your basic point was to say, here the reason for dismissal was the holding of the scab sign and the holding of the scab sign was, in fact, in the course of participating in a lawful activity organised by the union and that is enough.

MR BORENSTEIN: We do say that. Perhaps I misapprehended, but I did not understand Justice Hayne to be describing the activity in any different way. We do say that the holding of the sign – offensive, or stinging or insulting as it is – is still part of that activity, the industrial activity that is covered by the section.

GAGELER J: The argument against you – what was accepted by the Full Court was to say well, no, the reason for the dismissal has to be the reason of participating in an activity organised by the union. That is, the motivating factor for the dismissal needs to be an answer to that description. It is not enough that the activity answer that description.

MR BORENSTEIN: What we say is that you have to weigh up the disavowal by Mr Brick against all the circumstances and the legal characterisation of those circumstances.

HAYNE J: But the disavowal is disavowal of a legal characterisation. Is there any doubt that this man was dismissed because he held a sign? The premise for the debate was that the sign was offensive and that Mr Brick said, I dismissed him because he held an offensive sign.

MR BORENSTEIN: Yes.

HAYNE J: We can pars and analyse it any way you like but does it get it more complex than that?

MR BORENSTEIN: No, your Honour, but your Honour says that the reference to industrial activity is the legal characterisation and we would say that is not open to say that the decision-maker’s legal characterisation binds the judge in deciding and the judge here decided that the legal characterisation was otherwise. However much the decision-maker may seek otherwise to describe the activity as being in breach of a policy, or whatever else, it does not change that fact. Either the facts constitute industrial activity under section 347 or they do not. We say that the judge found here, clearly, that they did and was right to find the way he did. We say that it was wrong for the Full Court to say that once the evidence of Mr Brick was there, that it was not open to do the other.

FRENCH CJ: But he so found because he found that it was a consequence of the fact that the employee was holding the scab sign in the course of lawful industrial activity?

MR BORENSTEIN: Yes.

FRENCH CJ: That was almost a legal conclusion rather than an additional fact-finding. It was the way the section operates. He said his dismissal because he is holding the scab sign. The scab sign is being held in the course of lawful industrial activity – nothing unlawful about the scab sign – therefore, he is dismissed because of his participation in lawful industrial activity.

MR BORENSTEIN: Yes.

CRENNAN J: And he does not say, I do not believe Mr Brick, or does not challenge any aspect of Mr Brick’s account of his mental process.

MR BORENSTEIN: No, he does not. But where the mental process goes to a legal concept, he is not necessarily bound to accept Mr Brick’s legal characterisation.

CRENNAN J: That is your point, really, is it not?

MR BORENSTEIN: Yes, and if the facts point otherwise - - -

HAYNE J: I suspect then – to put it as tendentiously as I may so that Mr Walker will answer it – your proposition comes down to that 347(b)(iii) is not to be read as protecting participation politely in a lawful activity organised or promoted by the union. Is that it?

MR BORENSTEIN: Yes. I need to – before I finish – I need to draw attention to the dissent of Justice Kenny. Justice Kenny joined with the other members of the Court in relation to paragraph (iii) but took the

additional step of saying that the holding of the display of the sign fell within the operation of paragraph (v) and that it was clear on Mr Brick’s evidence that he took action against Mr Doevendans because he held the sign and, therefore, there is a contravention of paragraph (v). We submit that her Honour was right in relation to that part of the complaint and that the decision of the trial judge – who also found that there had been contravention of that paragraph – should be upheld on that basis.

KIEFEL J: Is there a finding of fact that the sign represents the views of the CFMEU?

MR BORENSTEIN: The trial judge made that finding and it was not raised in the appeal.

CRENNAN J: That is Mr Vickers’ evidence, is it not?

MR BORENSTEIN: I am sorry?

CRENNAN J: Mr Vickers’ evidence?

MR BORENSTEIN: Yes.

HAYNE J: The union produced the signs that - - -

MR BORENSTEIN: They did. The union produced all of the paraphernalia and made all the arrangements. If the Court pleases, they are the submissions that we make?

FRENCH CJ: Thank you, Mr Borenstein. Yes, Mr Walker.

MR WALKER: If it please the Court. Your Honours see that the course I have proposed, contained in our written outline, starts with an appeal to authority. Of course, characterisation of facts – even against a legal test – do not convey precedential force from one case to another but judicial method does, with respect, and there is a contest that was settled in Barclay that does not carry over into this case. That is, this false dichotomy subjective/objective. This is a case where at first instance and in the Full Court – indeed in all three sets of reasons in the Full Court – there was a proper attempt made to consider all the evidence whether you labelled it objective/subjective or otherwise.

If I may, shortly, deal with the first proposition in our outline? May I remind you of that which is obvious about Barclay compared to this case – similarities that matter in drawing lessons from the judicial method demonstrated authoritatively in Barclay. The first is that the email in question was and could only be characterised as conduct carried out in the course of holding office as an official, conveying a view, et cetera, et cetera. In other words, what might be called reasons with which the statute is concerned lest they be the motivation for adverse action. That was clear in Barclay. It is equally clear here. It could not be clearer than of holding up a scab sign at the picket.

Of course it is – to use one of the adverbs found in the authorities – inextricably related, but the notion that that is the end of the matter is, in our submission, utterly at odds with Barclay. If it had been enough to say he did this as an official, then to say that the adverse action was visited because he did this, then that would have been the end of the case and it was not the end of the case.

HAYNE J: Why? Barclay was a case where it was said that he was dealt with – he was subjected to adverse action because he was an officer, was it not?

MR WALKER: Yes.

HAYNE J: Section 346(a).

MR WALKER: It was also – as was recorded in paragraph 64 of the Full Court’s or the Federal Court’s decision in Barclay, it was also characterised as being caught by 347(b)(iii) and (v).

HAYNE J: Did that survive into this Court?

MR WALKER: No.

HAYNE J: That characterisation of the conduct?

MR WALKER: Yes, it was argued but I do not think you will find that it is - - -

CRENNAN J: It was referred to en passant, I think.

MR WALKER: Yes.

HAYNE J: I thought it was because he was an officer. He had signed the email - - -

MR WALKER: Yes.

HAYNE J: - - - as the relevant officeholder in the union.

MR WALKER: Quite so. That is why I have put it as the way I did.

HAYNE J: Yes.

MR WALKER: Barclay did not go off on the basis of saying – he wrote this only because he was an officer. He wrote it as an officer, if you want to be legalese – qua officer.

HAYNE J: Yes, and it did not, did it, directly consider 347(b)(iii) or (v)?? Or am I wrong? Am I mistaken, yet again?

MR WALKER: Paragraph (iii) – I think the answer to your Honour’s last question but one, that is, without the last two words was yes, for once.

CRENNAN J: Very artful, Mr Walker.

MR WALKER: Sorry.

HAYNE J: But I take the sting of it.

MR WALKER: Paragraph (iii) there is an expression and perhaps this answers the en passant description of Justice Crennan and he had engaged in particular kinds of industrial activity following a reference to being an officer, among other things. So, my point is – whether it is one or all of the rubrics that were invoked in Barclay and the ones that are alive in this case still were invoked in Barclay – whichever one or more it was, it is clear that the finding of fact as amply made in that case on the record as in this case and again, actually, without challenge concerning the character in which the email was written – it happens to be, relevantly, that he was an officer - was not enough to dispose of the case. In this case, if one turns to the facts, one finds - - -

GAGELER J: Mr Walker, just perhaps before you do, in Barclay in Justice Heydon’s judgment, paragraph [140], there is a statement in the last sentence. Does that statement reflect accurately the view of other members of the Court?

MR WALKER: Yes.

CRENNAN J: You would have to add, but not only that.

MR WALKER: Well, it is not expressed as being exhaustive. It is a statement that is examining the statutory expression “particular reason” that you find 361(1)(a) standing in for the “because” inquiry of 346. His Honour there says:

Examining whether a particular reason was –

and then there is a paraphrase of the case law “operative” or his Honour says “immediate reason”, it “calls for an inquiry into”. Well, on any view of it, it does. Now, does that exhaust the materials and processes necessary or appropriate in answering that inquiry? Probably not, and the balance of the other reasons in this Court in Barclay make it clear that of course – and I think it is very clear his Honour Justice Heydon is saying this as well – of course that examination of mental processes, and in particular, retrospective verbalising by a witness of what had been the mental process in the past will call for examination in context. Now, there is nothing peculiar about that. That is an extremely familiar state of affairs when a court has before it as one of the factual issues the mental state of a person.

CRENNAN J: What does it matter, Mr Walker, if Mr Brick found that the scab signs were offensive and breached the code of conduct and so on if the union has prepared the signs and they represent or advance the views or interests of the union? In other words, cannot those two dimensions to a set of facts coexist? I mean, they are not mutually contradictory, are they?

MR WALKER: Yes. Another example might be this: a union has a view that no foreign worker or female worker or a worker with a degree from a university would be welcome in this company town. None of those is a fantastic example, they are drawn from history. A union may have that view. A company may have a view that diversity and change in its workforce is an appropriate step for it to take in changing circumstances.

CRENNAN J: Well, a union will generally have a view that the greater the degree of collective action the more likely it is to achieve whatever results it is seeking to achieve.

MR WALKER: Yes, and that in fact is very well brought out by the way Justice Jessup deals with this matter in paragraphs 90 and following, to which I come back briefly. My point is this: let it be assumed that the union had such a view, but let me assume that a person, does not matter whether they are member or not at the moment, but a person in the course of a picket or indeed in the course of conversation at the workplace, offensively tells someone, go home and do the housework, if she is a woman, go home to China, if they are foreign, or, go back to university, if they are a graduate, in a way which is totally destructive of the co-operation that the employer is entitled to seek on a worksite.

Let me assume, as one I am sure will find in practically every ordered worksite nowadays, that would be contrary – such speech by the delinquent worker would be contrary to a code of conduct, and let me assume, to make it like this case, that the worker knew that and was recalcitrant or obdurate and was going to continue to make such statement. Add one other counterfactual for this case, that it was not known because there had not been publication of the fact, it was not known by the person who visits adverse action, be it reprimand or dismissal or suspension or whatever, or redeployment, it was not known that that was a union view.

Now, one would ordinarily say, a person who did not know that that was a union view could not possibly be a person who has visited adverse action on the worker because he had expressed a union view, but factually, as a matter of narrative, it would have been a view of the union. That fact is unaffected by the employer knowing it or not, it is not the tree falling in the deserted forest. It happened, it was a union view, had not yet been announced as such. No one, we think, would seriously argue that the mere fact that he was sacked or reprimanded for saying, go home, go to China, go back to university – or reprimanded for that – fell within 346 because it was true at the time of the conduct and the adverse action that that was a union view. Now that, in our submission, falls out from the simple text of 346 and - - -

HAYNE J: Well, it may fall out of 346(v), how does it deal at all with 346(b)(iii)? That is, you may say that 347(b)(v) represent the views – requires some civility of discourse. If 347(b)(iii) encompasses lawful activity of protest, protest must be polite?

MR WALKER: No, no. That would be an absurd proposition.

HAYNE J: Well, in the end - - -

MR WALKER: Indeed, it may be offensive.

HAYNE J: Sorry?

MR WALKER: It may be offensive. I do not mean criminal, I just mean offensive in the ordinary use of that word.

HAYNE J: Well, what is it that distinguishes this case from that which you have just described?

MR WALKER: Now, what I have just described is for this purpose: that for the inquiry, about which I have been asked, for the inquiry in question of course you are looking at the thought processes of a decision-maker, and of course if the decision-maker say, I did not know that was a union view, and was believed, that would discharge the onus in relation to the complaint that adverse action had been visited for an illegitimate reason.

In our submission, the next step can be taken. If the decision-maker says, I did not know and I would not have cared, it might be supererogatory in terms of the efficacy of the answer, but it would also be entirely, as the trial judge in this case proceeded and indeed the trial judge in Barclay proceeded, that is, it can be a sensible conclusion that somebody, had they known a fact, would not have cared about it. Another way of putting that in ordinary parlance is; would this have made a difference to you had you known you, answer: no.

Then of course we come to what might be regarded as this case, where there is not a question of not knowing this was a union view, there might be, as there was, lively contest about whether within the meaning of the statute this was to be attributed as a union view, but let us face it, for the reasons my learned friend has just put, that is not a contest we are interested in pursuing here. It may be assumed that the union’s endorsement of that form of rhetoric designed to dissuade people from exercising their statutory protected freedom of choice not to pick it. It may be assumed that it was understood in the company that that was a union view, and perhaps for the reasons Justice Kenny has developed below, that might be regarded as advancing a union interest.

KIEFEL J: I might be mistaken about this, but it appeared to me on reviewing Justice Kenny and the primary judge’s judgments on this point that the inquiry was simply whether or not the sign reflected the union’s view and the inquiry did not go further as to whether or not it influenced the decision-maker.

MR WALKER: You are right, and that is what I am embarked on at the moment. Now, we therefore have this case, I do know and I do not care, or, I do know and it did not make any difference. I do know and it did not matter. Now, it could not possibly be that the word “because” in the context of these provisions designed to preserve some kind of balance, as it has been called, and certainly designed to enhance the reality of the choice either to join or not to join relevantly in certain forms of industrial conflict, it would be absurd to suggest that this text and that context produced the proposition that, I do not know, will be a good answer, I do not know and I would not have cared, would be a good answer, but, I did know and I do not care, believed, would not be a good answer.

That would be ridiculous. It would serve no purpose whatever. Indeed, it would produce some perverse results. It would tend to grant what has been called a form of immunity by reason of what might be called atavistic views, that is, the very kind the voicing of which would be offensive and destructive of morale and engage in a form of systemic bullying of minorities and the like. It would give a form of immunity if that were adopted by more than one person and that plurality of people happened to produce the attribution of the view to the union, and there is no sign in the purpose – an evident intent to respect the choice of people to cross picket lines.

There is no suggestion that the statute was designed to operate in such an odd way. And, of course, Barclay makes it clear. He was known to have union status. That did not matter because upon the careful examination of the testimony, including the retrospective description of her own state of mind, including the contingent or hypothetical statements of what would not have made a difference, and upon it being tested, and looking at what was not challenged, there was in this Court upheld the propriety, indeed, the inevitability, of the successful making out of the defence.

CRENNAN J: I might have missed this, but what do you say is the combination of circumstances in Mr Brick’s case on this, I did not know and it did not matter, or, I did know and it did not matter and all that, how do you put his position?

MR WALKER: In this case you may assume that - - -

CRENNAN J: He did know.

MR WALKER: - - - Mr Brick knew and it did not matter. Now, can I at this point - - -

FRENCH CJ: Just before you do, the essence of the primary judge’s reasoning, if I understand it correctly, appears at paragraphs 114 and 123 at pages 165 and 168 of the - - -

MR WALKER: Your Honours, the short answer is, yes – just after I was going to take you to a particular paragraph I was going to say, the error is found in the same terms in those paragraphs.

FRENCH CJ: Can I just put the compendious proposition? Stating compendiously it is that Mr Brick terminated the employee because of his use of a scab sign. The proposition is then the scab sign was displayed in the course of (iii) and (v) activity, and therefore the termination was because of (iii) and (v) activity.

MR WALKER: Now, I am perhaps conceding too much when I say there may be a beguiling appearance of logic about that. In fact, that is not logical at all and, in our submission, if one returns to the method demonstrated in Barclay, that form of reasoning that we identify as the error really, to adopt Justice Kiefel’s expression, the top and bottom of the contest at the Bar table here, if one adopted that then Barclay would amount to saying, he was sacked because he said things, he said things as an official therefore he was sacked because he was an official, and that simply cannot run with the decision and the reasoning of it.

KIEFEL J: Just looking at paragraph 114 of the primary judge’s reasons, as a matter of language, the fact that the employee held and waved the sign is a fact upon which the reasoning depends but it is not a reason. That is the difficulty with that reference, is it not?

MR WALKER: Yes. Can I come back to the way in which the facts were found – the real facts were found by the trial judge? At appeal book 123, we have the first letter, the first as it were raising of the complaint by Mr Brick with the appellant. It is worth observing, if one looks at the quoted extract in paragraph 15 on that page, that according to the appellant’s argument the first four words of that letter gave the game away because that was true, any adverse action would be unlawful, and it says, “During the protest action”. We do not contest, as I say, that this waiving of the sign was not merely temporarily aligned with the protest action, it was part of it.

But the notion that that was the end of the inquiry, which is what one finds in 114, is what we do challenge as being utterly at odds with the approach taken in Barclay. It was a very important circumstance to be considered in both the heads in vote against us. Maybe not the most, but certainly a very, very obvious circumstance to be considered, and it was considered and carefully weighed by his Honour. Could I then point out, on page 125 in paragraph 19 something that needs to be observed, namely that there were a number of different signs. We see that at about line 14 or so on page 125.

You see that the source of what I would call his obduracy at later interview appears to have been that there could be no carryover from just outside the workplace in relation to workplace discipline. Then if I can take you, please, to page 130 and 131 in paragraph 28, one finds that which is returned to in the reasons as the accepted statement of reasons. There you will find in relation to the different signs item (c) at line 34, he had a choice of signs, and you see that picked up again in the second item (d) on the same page about line 58, “where a range of signs were available”.

Now, this is a standard way of trying to find out whether someone did something because of a particular ground, and the range of signs obviously meant that the decision-maker was focusing on the content of this sign, the scab sign, and not on other signs which your Honours may take it were also designed to advance a view of a union and were also designed to advance an interest of the union.

HAYNE J: And also designed to protest.

MR WALKER: And also designed to protest.

HAYNE J: Protest against those who were entering the mine across the picket line.

MR WALKER: I think some of the signs were protesting against the employer, not just against picketers. The scab one was the one particularly - - -

HAYNE J: I take it they went a little further than just saying, “Please don’t do that”.

MR WALKER: I think it is fair for your Honours to assume that there was what is sometimes euphemistically a robustness of position contrary to that of the employer and employees not in agreement with the picketers. Now, your Honours, that, in our submission, when one looks at all of the careful reasons which apparently were produced by a contemporaneously documented process that derives from something which is called the Just Culture Decision Tree – you will see that on page 131 in paragraph 29 at about line 48 – which produces as an outcome something called Intentional Deviant Violation which was that which was the label attached by the company to the appellant’s conduct, all shows a stepping through which is much more than just saying he waved a scab sign. Yes, that is at the heart of the matter, but it stands as an inaccurate and misleading bare summary unless it is understood that everything in 28 is there.

Now, his Honour had no difficulty in expressing a conclusion that the Full Court correctly read, and this Court should read, as being based upon an assessment of the witness in light of a consideration of all of the circumstances and the degree of challenge and non-challenge and how he survived challenge as a witness – see page 133, paragraph 34, about line 42 and following. That precedes the section in his reasons which is at the heart of our defence of the Full Court’s use of this section, which starts on page 134 in paragraph 36 under the subheading “The Reasons For Mr Doevendans’ Dismissal”. Now, that starts with a reference back to paragraph 28 and following, and you see, for example, at the end of paragraph 36, line 35:

In all of this, there is nothing which provides a basis for doubting that Mr Brick’s reasons for acting were just as he said they were.

Then in paragraph 38 there is a record of a contrary case unsuccessfully mounted in relation to that evidence, and his Honour very carefully deals with it, including by reference to the way in which Mr Brick gave evidence – see page 135 in paragraph 38, line 15 or thereabouts. Mr Brick’s credibility was expressly considered by his Honour – see paragraph 39.

FRENCH CJ: We are not in that territory, are we?

MR WALKER: No.

FRENCH CJ: It is the territory of the legal link made - - -

MR WALKER: Quite.

FRENCH CJ: - - - in the paragraphs to which we have referred.

MR WALKER: I have made these comments, putting this argument, because my learned friend says that there was an inaccurate weighing up of the disavowals – which means the successful – the evidence accepted by the trial judge of Mr Brick. The appellant is in the odd position of saying that a challenge that failed at first instance to Mr Brick’s evidence, though they won on a legal conclusion, a legal characterisation, which was either not renewed or certainly not successfully put in the Full Court of the Federal Court, should now be renewed here. In our submission, it is too late and there is no possible substance in it.

CRENNAN J: Well, there is the alternative argument, of course, depending on Justice Kenny’s dissent. I mean, I appreciate that you have dealt with paragraph 114 of the - - -

MR WALKER: May I come to that - - -

CRENNAN J: Yes.

MR WALKER: - - - perhaps separately. Your Honours at the foot of 135, top of 136, in paragraph 40, there is another of these careful and proper forms of reasoning in terms of assignment of a reason. That is, there were other people there equally conveying by signs views of the union. They were not the subject of such action because he was the only one who could be positively identified as having deployed the scab sign. So, in our submission, the ingredients are all there for the findings made by the trial judge as to what he called the reasons, explaining why the error emerged in 114. Now, in paragraph 41 there is an answer to the way in which there is this belated and substanceless attempt to depart from what the trial judge found about the reasons in this section of his judgment. It is there recorded that:

There was no inferential case, based on the objective facts as a whole, that was to any extent inconsistent with that evidence.

CRENNAN J: Well, then you have to read that with 44, I think, to understand what his Honour is saying.

MR WALKER: Quite. His Honour has then concluded by 44 what he calls the “bare facts”, what the subheading calls the reasons for the dismissal. Then, if I can jump to page 165, paragraph 114, one sees it is all contained in the steps set out in those two sentences:

holding and waving of the scabs sign was conduct by way of participation . . . Since a reason . . . was that he did so hold and wave the sign –

and that is unquestionably true –

it follows that his dismissal was done in contravention –

Now, that of course totally puts to one side what is clear from the so-called bare facts, that is, the real factual findings to which the statute had to be applied, in which one sees there is no role at all for the fact that characterising people in this conspicuously offensive way as scabs was a union view, was a reason for the dismissal. To put it another way, whether it had been a union view known or cared about did not matter to Mr Brick, and it is for those reasons, in our submission, that there is legal error shown at 114, correctly detected and corrected by the majority – in fact, by all three judges on this point in the Full Court.

HAYNE J: Leaving aside the offensive character attributed to the word “scab”, what other possible meaning could it have other than that there has been a departure from the joinder of an organised movement?

MR WALKER: I am sorry, your Honour, I did not get the last part of that sentence – departure from?

HAYNE J: “Scab” is defined in the OED as “a workman who refuses to join an organised movement on behalf of his trade”.

MR WALKER: That is correct.

HAYNE J: “A person who refuses to join a strike or who takes over the work of a striker, a blackleg, a strike breaker.”

MR WALKER: Yes.

HAYNE J: What other possible meaning could be given to the word “scab” than that, when used on a sign produced by the union, than that the union - shall I put it as neutrally as I may – disapproved of those who did not join the collective action?

MR WALKER: I am not suggesting there should be any other – and his Honour the trial judge and Full Court, for that matter, do not deal with it any differently. There are many ways in which one can paraphrase or summarise it. With great respect, for purposes of argument, the way Justice Hayne has put it is one that we would embrace. It is one of many ways one could put it. That is, if I can put it a little facetiously, the lexical core of whatever you will discover about the word “scab” has to do with a standing apart from, and not in line with, members of a union.

HAYNE J: Collective action.

MR WALKER: Yes. Now, your Honours, of course it is to be understood that these provisions – 346 and 347 - which start off “A person must not”, it involves of course the notion that there is a freedom of choice for somebody to be what others would call a scab.

CRENNAN J: But once one agrees about the meaning of it in the context of collective action, I am sorry I am harping on this, but do you then get really to Justice Kenny’s position in paragraphs 63 and 64, or is there something wrong with that reasoning?

MR WALKER: Yes, there is something wrong with it. Can I first of all observe that at paragraph 57 her Honour expresses the matter in a way that we embrace, that - - -

CRENNAN J: This is on (iii) now, is it not?

MR WALKER: Yes.

CRENNAN J: Then she turns at 60 to (v).

MR WALKER: Quite.

KIEFEL J: In relation to section 347(b)(v), her Honour’s view expressed at paragraph 69 that:

The representation or advocacy of the views or interests of an industrial association are all that is required.

MR WALKER: Are all that is required, yes.

KIEFEL J: Appears to be the same as the primary judge’s at 116.

MR WALKER: Yes.

KIEFEL J: The only question is whether the holding and waving of the scab sign had that character.

MR WALKER: That is correct, yes.

KIEFEL J: There is no inquiry as to whether or not it was a motivating - - -

MR WALKER: That is correct, and your Honour has anticipated how I wanted to end this up. It ends up with that second last sentence of paragraph 69 on page 242 of the appeal book, yes. Can I go back, however, please to paragraphs 56 and 57 on pages 236 and 237, where her Honour correctly and significantly points out that:

Mr Brick’s evidence (accepted without qualification by the primary judge) ruled out the possibility that Mr Doevendans was dismissed ‘because’ he participated in the ‘general protest’ –

Then her Honour characterises it in a way which, with great respect, is accurate and cogent. Then in paragraph 57, again with respect, her Honour cogently demonstrates the error in the first limb of the decision by the trial judge, paragraph 114. I will not read it but we, with respect, adopt and urge that approach.

HAYNE J: Well, does that analysis appearing at page 237 and the first half dozen lines or so depend upon the singular characterisation of the event, dividing the world into two classes; it is, it is not?

MR WALKER: No. None of the judges committed the error of overlooking 360, for example.

HAYNE J: My point is, I hope slightly different, which is is there at 237 the search for singular cause?

MR WALKER: No, no. That was the reason for my - - -

HAYNE J: Singular cause with singular characterisation, that is, that you can – you are either participating in the lawful activity or not participating in the lawful activity that is - - -

MR WALKER: No, there is not. Her Honour holds of course he is participating. We volunteer, of course he is participating. The question is this being done, not merely during participation, it is not like someone eating an apple during participation – the apple eating having nothing to do with the thing. It is, we accept, part and parcel of the activity in question.

HAYNE J: Mainly protest.

MR WALKER: Like the email in Barclay.

HAYNE J: Leave aside Barclay. Leave aside what you say can be derived from Barclay for the moment. Within the terms of the statute itself and nothing more, how do you say that (iii) is not engaged in this case?

MR WALKER: Quite simply because of the word “because” requiring investigation of the reasons that actuated a person and identification as to whether one of them, at least one of them, was on the proscribed list and that on the facts of this case as found by the trial judge there were no such proscribed reasons contained in the very fully described and investigated reasons for the decision.

KIEFEL J: So, in your view, the question is not whether this is a protected activity. The question is what motivated the employer.

MR WALKER: Yes. These are laws against what I will call “proscribed motivations” for actions that otherwise will have to be tested for their merits under other common law and statutory headings, unfair dismissal, for example, simple breach of contract. So, the question whether it suffices to dismiss a man that he waved a scab sign and was obdurate about it, that is for another kind of issue about unfair dismissal. These are provisions which cut in at an earlier stage. They cut in at the stage where you may not, it is unlawful to, among other things, dismiss because of and then follows the list. That word “because” has been held - - -

HAYNE J: That list is factual or legally characterised? That is, are you building in a legal characterisation?

MR WALKER: It is both, that is, there has to be a - - -

HAYNE J: It would be an odd result that you attribute to the employer the capacity to determine the legal characterisation that attaches to conduct.

MR WALKER: In fact, I was about to say, we do not want anything to do with the idea that Mr Brick was expressing legal conclusions or anything like that. Now, it might be assumed in a large corporation that there is an attempt by those who do things which are regulated by law to comply with the law but that is beside the point. It does not matter whether they try or not, what matters is whether they are successful or not. He did not give evidence in terms of legal conclusion and the trial judge did not make findings about reasons in that reasons part of his judgment in terms of legal conclusion and neither does the majority in the Full Court on one of the matters and all three members of the Full Court on the other matter express it in terms of legal conclusion when one is attributing the reasons to Mr Brick.

Having ascertained his reasons, one then asks whether, not bound by his nomenclature at all but by the substance of the matter, one asks whether any one or more of those reasons answers a description on the proscribed list. It is for those reasons, in our submission, that it is highly significant that there is no reference whatever in his reasons to the fact of being a protestor, being in an organised union protest – a union-organised protest, conveying a view which very obviously was a view of the unions, was anything to do with the reason why he was the subject of adverse action.

Other people were doing all of those things and were not affected. Other people were holding up other signs. There were other signs. He goes out of his way to point out, he did not have to use that sign. There were other signs. The clear implication, never challenged, being that if he had not used the scab sign, if he had used some other sign, here is a protestor who would not have been subject to any adverse action.

Now, that then comes down to this question. Is the effect of these provisions that there can be no adverse action of any kind taken by an employer in relation to conduct however much it may breach extant codes or cause breakdowns of morale simply because that is a method which is either a member’s privately chosen form of participating – so the private invective, the home made slogan – or that the union has sponsored, in this case had printed signs of that kind.

In our submission, there is simply no sign whatever that the balance has been so disturbed by these provisions as to provide an immunity for any conduct so long as it has union imprimatur. If the reason for visiting adverse action was that the conduct was that which pleases the union, then that would be a proscribed reason. But if the conduct happens to please the union but whether that be so or not plays no part in the employer taking adverse action on account of the conduct then there is no proscribed reason. That is the significance here of the detailed, positively expressed, fully explained and tested finding of fact about Mr Brick’s reasons.

They do not contain any shred of suggestion that it was the union imprimatur of the sign – that is the fact that they were union views – that played any part at all. As soon as one sees that there are other signs which would equally have been union views – as soon as one sees there are other signs which by implication Mr Brick would not have found objectionable, at least so as to lead to this kind of adverse action, then one sees that it cannot have been the fact of union imprimatur that played a part. His Honour so finds in our favour.

Where his Honour fails is, in our submission, simply to put together the fact of union imprimatur with the operative reason which was the waving of the scab sign and all the other circumstances that Mr Brick talks about. Then to say by false logic that that means that Mr Brick visited that adverse action because of the representation of a union view. As I say, that is a form of false reasoning which does leave open – it is not this case but it does leave open the case of the unknown union imprimatur being pulled out as a trump to defeat what would otherwise be a good answer to a complaint under 346. You did not know it but this was a union view and you have sacked because he advanced that view, it was a union view, therefore you sacked because he advanced a union view. That is the reasoning at 114. That, in our submission, is insupportable.

There is nothing in the text that would permit a carve-out for what I will call “unknown reasons” which is intended to be an oxymoron, “unknown reasons”. You do not need a carve-out. The word “because” on the approach of this Court in Barclay plainly requires the full investigation of all the available material and circumstances so as to attribute reason, and unless one were to say that you could not object to the use of “scab” without objecting to it being a union position and that is untenable surely, unless you could say that, then the primary findings by the trial judge were, with respect, unassailable as an answer to the complaint. His Honour erred for the reasons we have put. Justice Kenny erred in relation to the second point.

Now, I have taken your Honours to paragraph 57. Could I point out what her Honour observes in paragraph 62 and 63 on pages 238 and 239? Her Honour introduces it by noting the possibility of multiple reasons, the reference to 360 and then says:

In holding up the sign at the protest site, Mr Doevendans was without doubt expressing a view about those of his fellow-workers who continued to work during the stoppage . . . That view was one of the strongest disapproval.

I agree with the primary judge too that the scabs sign can also be taken as representing an interest, in that the sign expressed disapproval . . . undermined . . . and, by vehemently expressing disapproval, the scabs sign also sought to discourage workers from not joining in collective action.

All of that, with respect, is plainly correct in terms of an available characterisation of what happened. We do not resist it. There is a curious passage at the end of her Honour’s paragraph 65 on page 240 at about – starting at line 45:

That Mr Doevendans was dismissed for representing these interests in the context of a work stoppage and protest is irrelevant to the operation of s 346 and s 347(b)(v), because Mr Doevendans would enjoy the same statutory protection if he had driven to work with one of the stickers to which Mr Vickers referred stuck to his back window, whether or not negotiations for a new enterprise agreement were on foot.

Her Honour appears to be contemplating that so long as your bumper stickers are issued by the union then nothing in them can ever be the subject of disciplinary action at work, however offensive, however racist, however sexist, however old fashioned, in a way destructive of mutual trust and confidence at the workplace it may be. So that union endorsement of a forceful expression of opinion becomes an immuniser of that statement of opinion otherwise falling to be considered under, for example, an applicable code of conduct. There is nothing in the statute that says that.

It is for those reasons, in our submission, that one returns to a purposive understanding as this Court, particularly the joint reasons of Justices Gummow and Hayne point out in Barclay, that there is an historical understanding, maybe the purpose has been pointed or repointed over the years, maybe the mischief is seen somewhat differently over the years. Certainly, the longer one obtains a balance the more one might see the balance could be struck differently et cetera, et cetera, but these are the latest iteration of words which are designed to achieve something in the nature of balance. Nowhere have my friends identified any of the text which would suggest that these are words which immunise a person so long as what they have said otherwise offensive and contrary to the terms of their employment, contrary to otherwise lawful directions. They are immunised so long as the union also has that view.

Now, it is for those reasons, in our submission, that I am afraid one does have to – we have to return to pointing to the way in which the matter was approached in Barclay and submitting, with respect, the way in which the three judges below on the first matter and the two in the majority in the second matter proceeded was, as it turns out, exactly in accordance with the way in which this Court proceeded in Barclay. That is, to search for the reason and not to be satisfied with what I will call the mere simultaneity in a narrative sense of one of the proscribed facts with the adverse action.

When one then goes to complete the way in which Justice Kenny ruled against us below on page 240, 241 in paragraph 66 there is a statement which, with respect, we adopt and urge. I am sorry I will start that again. There is an accurate summation of a submission put below. Her Honour says there is no basis for that – line 15 on page 241 – but, with respect, the basis is found in the word “because” and in the need for the view to be a view of the union. It cannot possibly be, as I say, that embraces someone being held guilty of unlawful conduct under 346 for sacking a person for expressing a view which happens to be truly the view of the union but that was unknown to the person who sacked the employee. The last two sentences of paragraph 66 are sentences with which we respectfully take issue. Her Honour there says:

The proscribed reason is not that the employee represents ‘union’ views (whatever they may be) but that the employee represents or advances the particular views of an industrial association (in the sense that these views were held by that industrial association at the relevant time). BHP Coal’s argument at this stage involves an unwarranted gloss upon the governing statute.

Not so, it simply requires proper meaning to be given to the word “because” as understood and explained in this Court as meaning “substantial or operative factor" and the fact of union endorsement of calling people scabs played no part, as one can see from the finding of fact in what Mr Brick did. That much can be seen from the fact that there is no wholesale attachment to everybody else who was advancing union views, it was the fact that Mr Doevendans adopted in such a way and so recalcitrantly when taxed with it that led to the adverse action. In paragraph 69, therefore, the errors are in particular the approach that says of paragraph (v), it:

simply provides that a person engages in industrial action . . . where that person represents or advances the view . . . The representation or advocacy of the views or interest of an industrial association –

that must mean which simply happened to be, which are factually –

are all that is required.

Now, if that were understood as meaning that is all that is required for (v), that is true. But if, as is clear from the way in which her Honour concludes, that is meant to mean that is all that is required to make out satisfaction of what is called up by the word “because” then that is the same error as was committed by the trial judge.

GAGELER J: Mr Walker, could I just ask a question about the approach to section 346? As you put it, it appears to be an inquiry into the mind of Mr Brick that is involved in this case.

MR WALKER: It is ultimately that, but that does not mean that - - -

GAGELER J: My only question is reconciling it with Barclay. In what sense is that an objective inquiry, if at all?

MR WALKER: We would eschew an epithet subjective or objective. We submit that it is simply what the word “because” requires, and you are talking about a person’s conduct. For the reasons that Justice Heydon I think alone adumbrated, it would be too silly for words to be looking in some deterministic fashion for ultimate causes of a kind which may be lost in ancestry and genetics, but that is irrelevant, and we do not have to think about the hilarity, as his Honour puts it, that would be cited by possible witnesses being proofed as to their unconscious reasons. That picks up what I was saying earlier about the nonsense involved in the idea that someone could be said to have done something because of X if they did not even know of X.

So, my word that I have offered a couple of times today is that these are provisions about proscribed motivation. Being motivation, yes, they are ultimately about a state of mind, but of course the state of mind is to be examined against the relevant legal standards in all the circumstances that the Court finds from case to be case to be relevant in an Evidence Act sense. It is for those reasons that, if I can return to your question, Justice Gageler, earlier to me about the passage in paragraph [140] of Justice Heydon, we submit that expressions to the same effect are to be found in the reasons of the Chief Justice and Justice Crennan, paragraphs [44], to which one adds contextually, paragraphs [5], [101] and [127].

Could I remind you, in the reasons of Justices Gummow and Hayne at [128] the conclusion of Justice Lander, which is there approved, is one which, in our submission, is very plainly one concerning this being an inquiry into what motivated or actuated conduct. That is what is called up the word “because”, and that will necessarily involve examination of a person’s state of mind.

HAYNE J: Having answered the question, why did this person dismiss, do you then measure that against the statute?

MR WALKER: The yardstick or template is run over that description to see whether there is any congruence at any point, only needs one, with the proscribed list, yes.

HAYNE J: But, you start with, why did this person act as they did.

MR WALKER: Yes, as your Honour and Justice Gummow put it, yes. With great respect to the learned trial judge in this case, he did that in an exemplary fashion. There is no sign of any shortcoming in the approach to fact-finding, expression of reasons, at all. Perhaps we could be permitted a slight grumble about his Honour describing such ample findings as, what he calls, “bare facts”, they are elaborated facts, but that is a captious point for us to make. The only error his Honour made was then, name the template or yardstick against that, his Honour erred by attributing a proscribed reason where it could be seen that that union connection, or the participation in the activity, played no part.

I know I am repeating myself, but in particular, I think it was once Justice Hayne’s question, that must be so most obviously with the first ground where it is clear that the decision-maker is implying he would not have any objection had some other signification be used, in which case there would equality have been participation in activity. So, it was not participation in activity that was actuating the employer’s conduct.

HAYNE J: Well, if things had been different things would have been different, Mr Walker, that is all that proposition comes to.

MR WALKER: It does. But, your Honour, these are cases where this Court has said that one way to test things is to change the facts, and that is very proper cross-examination in particular in such a case, not least because in many cases there will be available material of what I might call “like” or “unlike” cases from which one may be able to drive a witness to a particular conclusion. Of course if you change factors things may alter. That is one way to test the materiality of something, would it make a difference if this were altered? If it would not make a difference then that is very often the beginning of a case, maybe not the end of it but very often the beginning of the case, that the factor in question was not causative, was not motivating.

HAYNE J: Do you accept, Mr Walker, that the person concerned was dismissed because he held a sign in the course of – or if you like, he repeatedly held a sign in the course of a lawful industrial protest which was a sign he repeatedly and determinately chose which was offensive and which he knew to be offensive?

MR WALKER: Yes.

HAYNE J: The question then becomes whether that dismissal for those reasons, or that reason, depending on how you characterise it, is to be characterised as a dismissal for a reason that, amongst other things, includes his participation in a lawful activity, namely an activity of protest, which was an activity organised by an industrial association.

MR WALKER: Yes, and then you can add the – you can bring the change by referring to it being the representation of a view, yes, your Honour.

HAYNE J: We should also presumably proceed on the footing that there was no doubt that Mr Brick did not think that he was acting for a proscribed reason.

MR WALKER: There is no doubt about that, neither does that advance my position.

HAYNE J: No.

MR WALKER: The opposite would go a long way to hurting my position, but that does not help me.

HAYNE J: What do you say against the point I have tried to make, albeit it captiously, by saying that subparagraph (iii) talks of participating in lawful action, not participating politely in lawful action?

MR WALKER: It is, first of all, and with respect, a very important point for reasons that have been observed in a number of places, including in this Court, because of the constitutional background in relation to the robust exchange of views concerning – I am going to call them just “political matters”, I am not invoking the Constitution here. So, there is what might be called a social expectation which, without intending to facetious, certainly goes nowhere near the idea that this statute should be construed as giving employers some power to impose the manners of a tea party on a picket. That is no part of our case.

Now, it could be, of course, that a badly advised employer might devise a code of conduct which amounted to saying expressions of dissent against management wherever they are made will be regarded as destructive of moral and after one warning may be a ground for dismissal. That would be too silly for words, but assuming someone had such a code and leaving to one side its almost inevitable fate in an unfair dismissal case, it would not, in our submission, be difficult for someone who is participating in a strike or in a picket, which involves the expression of dissent against management, having adverse action visited upon them it would not at all be difficult to say the whole matter of the action in question can be characterised as (a) dissent against the management, and (b) the action against which adverse action must not be taken on account of it.

So that would have been a relabelling – excessively clever relabelling by an employer in a way that would be defeated by an analysis of substance. You would simply say, in substance to dismiss for dissent and to protest that that is not one of the proscribed reasons is simply relabelling that which is in fact participation in a union-organised protest, or the expression of a view of the union which is contrary to that of management. We are very, very far away from that.

CRENNAN J: Except Mr Brick was concerned of breach of the guidelines and with what he described as “the culture” which he was seeking to - - -

MR WALKER: There is no doubt about that. That is one of the reasons why I draw to attention several times codes because it is quite explicit, one might say, in a manner approaching the ponderous, that that was followed, as it were, to the letter, and it was the subject of discussion, including discussions which provided further grounds for the level 4 - stage 4 decision that he took of the more dire kind.

FRENCH CJ: I suppose it is important to keep in mind that we are not considering here the scope of an employer’s power to do things, nor are we considering the scope of an immunity attaching to employees doing things. We are talking about the limits of a prohibition imposed on employers.

MR WALKER: That is right, and in particular, on the way in which one may make out a defence where - - -

CRENNAN J: Now you can discharge the onus.

MR WALKER: I should not call it a defence. It is an onus to overcome the operation of a statutory presumption attributing a “particular reason” to an action. In our submission, it is that which brings up the necessary inquiry into a person’s state of mind. It is that which brings up the established ability to discharge that onus even though the conduct in question of the employee was inextricably related to, among other things, participation in industrial action or the representation of the union view. That is Barclay. It will be a case by case determination. We say that the majority in the Full Court were correctly satisfied that the trial judge’s findings had made that out, and the trial judge’s error was not to conclude that those findings made that out.

That has, in our submission, no element of saying that there is, contrary to the intent of the statute by the decision of the Full Court, an impermissible power given to employers to control the degree of decorum involved in the conduct of a picket. It is neither here nor there. The merit of the dismissal on that ground is for another time and place. If it is thought that being worried by the use of the word “scab” – notwithstanding the uncontested evidence about that, mind you – if it was thought that that was verging on the precious on my client’s part and that it was unreasonable to take it so seriously, that can be the subject of unfair dismissal.

None of that has anything to do with the genuineness both as to sincerity and, if you like, insight of Mr Brick, accepted by the trial judge, that neither union imprimatur nor the fact of participation in a protest was what actuated the conduct. I do stress, we know from his statement of reasons accepted that Mr Brick had in mind modes of participation – that is, without this “scab” sign – that would not have excited any investigation at all, let alone adverse action. Justice Hayne asked me earlier at the very beginning about whether Barclay had included (b)(iii) and (v). There are other references, I am told, you will find in paragraphs 45, 60, 61, 62 and 65. May it please the Court.

FRENCH CJ: Yes, Mr Borenstein.

MR BORENSTEIN: Can I add to that list of paragraphs paragraph 23, in which the Chief Justice and Justice Crennan noted that:

Before the primary judge, the case that s 346 had been contravened was founded on the close relationship between the reasons for Mr Barclay’s dismissal and his role as an AEU officer: Mr Barclay had become aware of AEU members’ concerns –

et cetera. But the point is the one that I made earlier, which is that the email was sought to be protected because it was described as being the actions of a union representative, and in one of his closing remarks, our friend sought to describe Mr Doevendans’ position as being inextricably connected with the proscribed activity. We take issue with that. We say that Mr Doevendans’ conduct was in the actual activity that is protected by section 347(iii). It is specifically that and in that respect it is distinguishable from the circumstances in Barclay on a factual sense.

Can I just briefly say also that our friend made reference to some findings of the primary judge at paragraphs 37 through to 40. We seek to draw attention to the fact that before the primary judge, there were a number of prohibited reasons that were being advanced, one of which was that this action was being taken against Mr Doevendans because he was an official of the union. The paragraphs to which our friend referred, at paragraphs 37 through to 40 and 41, were dealing with that topic and not the topic that is before the Court today.

In relation to the submissions that our friend made about the immunity that should not be given to conduct by employees, our submission in brief is that the Parliament has defined in section 347 what conduct can and cannot be protected, or is not to be the subject or the reason for adverse action. In relation to paragraph (iii), it makes it clear what sort of activity one may participate in with immunity from adverse action, and the same in paragraph (v). Now, whatever meaning you give to the word “because”, the

section has spoken; the legislature has defined what sort of activity should or should not be protected. We do not seek to go beyond that.

Insofar as it was accepted in the Full Court that the use of the word “scab” and the language on the sign was a reflection of the union’s interests or views, if it is that, then paragraph (v) of 347 applies and there is no room to go behind that and say, well, it only applies if we do not find it offensive, contrary to what our friend says. That does open up the field to an employer to control the terms on which union views will be expressed in protest or elsewhere. That is clearly not envisaged by the legislation.

If there are views that are expressed in a way which is otherwise unlawful, there are remedies for that. But insofar as the protections under 346 and 347 are concerned, the Court should, in our respectful submission, focus on the precise words which the legislature has chosen to delineate the areas of activity which should be protected from adverse action. Other than that, if the Court pleases, we rely on our submissions.

FRENCH CJ: Thank you, Mr Borenstein. The Court will reserve its decision. The Court adjourns until 9.30 tomorrow morning.

AT 3.54 PM THE MATTER WAS ADJOURNED