• Any

INDUSTRIAL LAW- decision by employer to conduct "spill and fill"selection and retrenchment process - whether made for prohibited reason -whethermade wholly or in part because of protected action - whether decisionconstitutes threat of dismissal - whether constitutes injuryto employees incourse of employment - whether prejudicially alters employees' positions -whether decision taken by reason of employees'membership of industrial union -whether employees dissatisfied with conditions - whether decision taken tocoerce employees to acceptagreement.

Workplace Relations Act 1996 (Cth) ss 170MU(1), 170NC, 298K(1)(a),(b), (c), 298L(1)(a), 298L(1)(l)

Davids Distribution Pty Ltd v NUW[1999] FCA 1108;(1999) 91 FCR 463 at 500 considered

Construction, Forestry, Mining and Energy Union v BHP Steel (AIS) PtyLtd[2000] FCA 1008 at par 48 referred to

Australian Workers' Union v John Holland Pty Ltd[2001] FCA 93 at par 47referred to

General Motors Holden Pty Ltd v Bowling(1976) 12 ALR 605 at 616, 619referred to

IW v City of Perth[1997] HCA 30;(1997) 191 CLR 1 referred to

Employment Advocate v National Union of Workers[2000] FCA 710;(2000) 173 ALR 479 at487 referred to

CPSU v Telstra Corporation Ltd[2000] FCA 844;(2000) 99 IR 238 at 244, 245-246followed

Maritime Union of Australia v Geraldton Port Authority[1999] FCA 899;(1999) 93 FCR 34at 69 referred to

Patrick Stevedore Operations No 2 Pty Ltd v Maritime Union of Australia[1998] HCA 30;(1998) 195 CLR 1 at 18 referred to

Australian Municipal, Administrative, Clerical and Services Union v GreaterDandenong Council[2000] FCA 1231;(2000) 101 IR 143 at 157 referred to

Gibbs v Palmerston Town Council (V28 and V29 of 1987, unreported, 21December 1987) considered

Australian Workers' Union v BHP Iron-Ore Pty Ltd[2001] FCA 3 at pars53-54, 172-173, 218 followed, par 66 considered

Jones v Dunkel[1959] HCA 8;(1959) 101 CLR 298 referred to

Finance Sector Union v Commonwealth Bank of Australia[2000] FCA 1372referred to

BHP Iron Ore Pty Ltd v Australian Workers' Union[2000] FCA 430;(2000) 171 ALR 680 at689, 698-703 followed

Finance Section Union v Commonwealth Bank of Australia[2000] FCA 1468followed

NATIONAL UNION OF WORKERS v QENOS PTY LTD (ABN 62 054 196 771)

V937/00

WEINBERG J

6 MARCH 2001

MELBOURNE

THE COURT ORDERS THAT:

The application be dismissed.

Note:Settlement and entry of orders is dealt with in Order 36 of the FederalCourt Rules.

1The applicant, the National Union of Workers ("the NUW"), seeks relief forbreaches of various provisions of theWorkplace Relations Act 1996 (Cth)("theAct"). In substance, the NUW claims that the decision by the respondent("Qenos") to conduct a "spill and fill" selection and retrenchmentprocess foremployees at Qenos' Olefins plant at Altona, was made for a "prohibited reason"within the meaning of that term in theAct.

2The NUW filed the application on 5 December 2000. It originally soughtdeclarations that Qenos had contravened ss 170MU(1), 298K(1),170NC and298M of theAct, injunctions restraining Qenos from contravening thoseprovisions, and orders under s 298U in respect of those alleged breaches.In its application the NUW also sought an interlocutory injunction restrainingQenos from requiring the Olefins employees to participatein the proposedselection process.

3At the conclusion of the trial of this proceeding the NUW informed me that itno longer wished to press any claim in relationto s 298M. Nothingfurther need be said about that claim.

4On 14 December 2000 I heard argument in respect of the interlocutoryinjunction application. I was satisfied on the evidencethat it wasappropriate to grant an interlocutory injunction. That injunction was in thefollowing terms:

"THE COURT ORDERS:

1.That until the hearing and determination of that part of theApplication which relates to the claim for interlocutory relief in paragraph1(a) of Part B of the Application, or further order, the respondent (eitheritself, or its servants, or agents, or howsoever otherwise),be restrained fromtaking any step or doing anything which:

(a)requires the direct participation of Olefins employees in the "spilland fill" process; or

(b)fills any position in any proposed new structure."

(c)

5At the time I granted the interlocutory injunction I indicated to theparties that I would deliver my reasons for doing so at alater date. However,having regard to the fact that this application was able to be heardexpeditiously to finality, it is unnecessaryto say anything further about theearlier proceeding.

Factual background

6Qenos was formed in July 1999 as a joint venture between an Exxon Corporationsubsidiary and a Mobil Corporation subsidiary (nowknown as the ExxonMobilCorporation) and Orica Australia Limited. The joint venture involved themerger of ExxonMobil's manufacturingoperations in Altona, Victoria (KemcorAustralia Pty Ltd) and Orica Limited's manufacturing operations at Port Botany,New SouthWales. The name "Qenos" was adopted in October 1999.

7Qenos operates four manufacturing plants at Altona: Olefins, Plastics,Elastomers, and Resins. Elastomers manufactures rubberproducts and Resinsmanufactures polyethylene and polypropolene. The four plants make up aninter-related manufacturing processin that the operation of one impacts uponeach of the others. The plants consist of the following sub-plants or operations:

8Qenos employs a total of approximately 900 people at its four manufacturingplants. The industrial interests of operators arerepresented by the NUW orthe Australian Workers' Union ("the AWU"). Qenos also employs approximately 113maintenance employees inthe maintenance group. These employees are eitherrepresented by the Automotive Food Metals Engineering Printing and KindredIndustriesUnion ("the AMWU") or the Communications Electrical ElectronicEnergy Information Postal Plumbing and Allied Services Union of Australia("theCEPU").

9The employment of operators and maintenance employees at the Altona site isregulated by the Kemcor Australia Pty Ltd Altona Award1996 ("the Award") andthe Kemcor Australia Bridging Agreement 1999 ("the Bridging Agreement"). On 1June 1999 the Bridging Agreementreplaced the Kemcor Australia Pty LtdEnterprise Agreement 1996-1999 ("EA II"). Since 1992 Qenos has adopted anapproach of negotiatingwith all four unions to address conditions at the QenosAltona site, through a single bargaining unit ("SBU") made up of the AMU,theAMWU, the CEPU and the NUW.

10The Award underpins the Bridging Agreement. It was created by consentbetween the four unions comprising the SBU to providea common set ofconditions across Qenos' Altona site. The employment of approximately 470employees is subject to the Bridging Agreement. There are approximately 400employees whose employment is not subject to the Bridging Agreement. Thenominal expiry date of theBridging Agreement was 29 February 2000.

11At the Olefins plant, Qenos employs approximately 95 operators. All of theseoperators are members of the NUW.

12In September 1999 Qenos and the various unions commenced negotiations inorder to reach a new enterprise agreement, to be knownas Qenos AltonaEnterprise Agreement 2000 ("EA III"). In order to assist and to provideoperations support to the negotiation process,Qenos formed the AltonaEnterprise Agreement Consultative Team ("the AEACT") in November 1999. TheAEACT consists of Mr Steven Varney,Human Resources Manager, Mr Del Blake,General Manager, Operations, Mr Ken Gilbert, Industrial Relations Manager, MrJohn Aitken,Compensation and Benefits Manager, Mr Christopher Harvey,Elastomers Operations Manager, and several other Operations Managers. Theunions were represented by the Union Lead Team ("the ULT"), which was comprisedof union shop stewards from each of the fourunions.

13By May 2000 no agreement over the terms of a new enterprise agreement hadbeen reached between Qenos management and the ULT. The negotiations appear tohave stalled. As a result, in about early May 2000 each of the unions servedon the company a Notificationof Bargaining Period pursuant to s 170MI oftheAct. It appears that there was dissatisfaction in respect of severalaspects of Qenos' proposal. The unions other than the NUW werenot prepared topress their views by way of industrial action. In contrast, the viewsexpressed by the NUW Olefins shop stewards(and by many of the Olefinsoperators) was that they were strongly opposed to a number of changes to workarrangements sought byQenos, and were insistent on a number of aspects of theclaims made by the NUW on their behalf.

14Although negotiations continued between Qenos and the ULT between May andAugust 2000, these negotiations failed to resolve thekey issues of concern tothe NUW members. On 1 September 2000 Qenos served on the NUW and the otherunions a Notice of a BargainingPeriod under theAct. Following the service ofthat notice further negotiations occurred between Qenos and the ULT. Duringthe course of these negotiationsQenos informed the union representatives thatthe position communicated to the ULT was its "final offer".

15This "final offer" was considered by a mass meeting of members of all theunions on 27 September 2000. A motion was passed atthis meeting by atwo-thirds majority seeking amendments to Qenos' proposal for a certifiedagreement.

16On 29 September 2000, Qenos served on the NUW and the other unions a Noticeof Intended Lockout under theAct. The Notice stated that Qenos proposed tolock out employees at the Altona plants during the period 9 October 2000 to 9December2000.

17At about 7.30am on 4 October 2000 the SBU held a mass meeting across allfour Altona plants to vote on a draft EA III. Duringthis meeting amotion was moved that Qenos' "final offer" for a new certified agreement beaccepted "in principle". That motionwas carried by a vote (by show of hands)of 200 members in favour and 167 against, with approximately tenabstentions.

18Immediately following the mass meeting on 4 October 2000, a meeting of about80 Olefins operators was held at the Olefins plant. During this meeting amotion was passed rejecting Qenos' proposed terms for a new certified agreementand seeking separate negotiationswith Qenos for a certified agreement inrespect of the Olefins plant operators.

19The outcome of this meeting was communicated to the Qenos management whoindicated that it was not prepared to agree to separatenegotiations in respectof the NUW at the Olefins plant.

20On 10 October 2000 the NUW served on Qenos a Notice of Protected Action.This notice stated that members of the NUW employedat the Olefins plant wouldtake protected action in the form of an indefinite strike commencing onSaturday 14 October 2000. Onor about that same day, the NUW received fromQenos a Notice of Intended Lockout. The notice stated that the companyintended tolock out all operators employed at the Olefins plant who weremembers or eligible members of the NUW and that such action would commenceon14 October 2000 and continue until 14 December 2000.

21On 14 October 2000 the NUW members employed at the Olefins plant left theplant and commenced an indefinite strike. Some daysafter the completion ofthis hearing, while judgment in this matter was reserved, I was informed thatthose employees had agreedto return to work, and that they had agreed withQenos to certify the EA III. That decision to return to work did not,however,resolve the issues in dispute in the present proceeding.

22On 14 November 2000 Qenos announced, by way of media release, its intentionto close its high-pressure operation in the Plasticsplant (the LDPE plant) andone of its operations in its Elastomers Plant (the SBR plant). The mediarelease stated in part:

"The move will result in the loss of about 120 Altona jobs inthe coming months. The company will consult with employees and theirrepresentatives about a fair and equitable selection process by which the mostcompetent employees are retained."

23It appears that the closure of the two operations had been underconsideration by the company for some time, probably since July1999. However,the timing of the decision to close the operations is said by the applicant tobe of central importance to its case,and I will therefore return to thatmatter later in these reasons for judgment.

24The evidence of Mr Berton, Operations Manager at the Olefins plant, was thatthe SBR operation has, for some time, been runningat a loss and that Qenos nolonger intends to produce the particular rubber product which was manufacturedby that operation. Itis intended to close that sub-plant some time in early2001. The LDPE plant is shut down at present because Olefins is not producingfeed stock, and it will not be recommissioned.

25In addition, the SCAL1 Olefins Unit is to be converted from an oil-basedfeed unit to an ethane-based unit. As a result of thischange, the BRsub-plant at Elastomers and the polypropelene sub-plant at Resins will not haveany raw material in order to manufacturetheir respective products. These twosub-plants are likely to be closed in or about 2003.

26Some time after 14 November 2000 Qenos employees received a letter from thecompany in relation to the closures. This letterstated in part:

"The plant closures will result in the loss of approximately 120jobs at Altona. Consistent with Qenos' values, we will consult withemployeesabout a selection process that is objective and transparent and treats allemployees fairly. It will be based on competencyand not the employee's plantlocation."

27On 16 November 2000 a meeting was held during which Qenos representativesexplained to NUW officials that a "spill and fill" processwould be adopted toselect those operators to be retrenched. It was explained that the "pool" ofemployees from which retrenchmentswould be made would include all operators atthe Olefins, Plastics and Elastomers (SBR) plants. Each of the employees atthese plantswould have to re-apply for their positions.

28It was also explained during this meeting that the employees at the Resinsand Elastomers (BR) plants would not be included inthe pool. The managementrepresentatives said that this was because, in the case of the Elastomers (BR)plant, it was scheduledto close in any event in about 18 months. Qenos wantedto avoid having to train the successful applicants for a position in thatplantgiven that it would continue to operate for such a short period. In respect ofthe Resins plant, it was to be excluded fromthe process because it was to besubject to its own internal restructure which was to occur within the nextthree years.

29In early May 2000, Mr Robert Jamieson, Resins Change Team Leader at Qenos,had engaged the services of a well-known firm of humanresources consultants,Morgan & Banks (Assessment and Development Team), to assist Qenos with arestructure of the Resins plant. The restructure resulted in the retrenchmentof approximately ten employees from a total pool of 87 employees. At theinstructionof Mr Jamieson, Mr Matthew Bristow, a Morgan & Banks employee,designed criteria for the selection of employees. These criteriawere used inthe interview and assessment of employees. Based on the results of thoseinterviews and assessments, final retrenchmentdecisions were made.

30On 31 October 2000 Mr Jamieson and Mr Bristow gave a presentation to anAEACT meeting on the outcome of the Resins redundancyprocess. They explainedto the meeting the selection criteria that were used and how that process hadunfolded. Mr Jamieson gaveevidence that later that day he was told of theimpending closure of the LDPE and SBR operations. He was asked to lead aprojectteam to develop and implement a selection process to ensure that Qenoscould retain the best employees across those plants ratherthan just allowingpeople to put up their hands for voluntary redundancy.

31Shortly after, Mr Jamieson, Mr Bristow and the project team developed aprocess to implement the spill and fill. In essence,the process involvesidentifying the most appropriate "human competencies", having regard to theQenos culture and values. Thosecompetencies are then tested by Morgan &Banks. In addition to "human competencies" the selection process is to takeinto considerationthe employee's "motivational fit" and "learning capacity".

32In order to choose the selection criteria to be used for the spill and fill,the project team, in consultation with Morgan &Banks, developed a "humancompetency library". This was a list of 16 criteria from which a lesser numberwould ultimately form partof the selection criteria. The next step involvedemployees being invited to give their input to determine the appropriatefactorsto assess the motivational fit profile. To this end, on 9 November2000 Mr Jamieson sent an e-mail to each of the operational managers,askingthem to select employees to participate in this part of the process. Thee-mail stated in part:

"Rob and Trevor need...to survey a sample population at both theOlefins and Plastics LP plant to determine what competency's [sic]we will testfor and there [sic] priority to the business. Motivational fit survey willalso be included in this exercise.

In preparation, what I am after is a list of 10 - 12 names of employees fromeach business who are forward thinking, understand thebig picture and areprepared to put in a little work in [sic] to make a difference. We will askthem to complete this survey. Thedata generated will then be used as aselection tool in the expected organisational change program."

33The competencies chosen, which are by and large very similar to thosechosen for the Resins restructure, are:

*Continuous improvement

*Influencing and working with others/communication

*Initiative

*Managing change

*Managing work (adaptability)

*Problem solving/decision making

*Results driven

*Self-management

34Based on these criteria, employees are to be assessed through a structuredbehavioural interview. Exercises and questions havebeen designed, inter alia,to test employees' aptitude and learning capacity, as well as their interest inongoing employment withQenos. Supervisors and employees are then to beinterviewed. Once this process is complete, the plan is to rank all employeesaccordingto the results of these assessments.

35During the course of the trial it became apparent that the process formaking final decisions with regard to the selection ofemployees had not yetbeen determined by Qenos. What was clear, however, was that Mr Varney and MrBlake would have the final sayas to which employees were to stay and whichwere to be made redundant.

36Mr Jamieson gave evidence that when he conducted the redundancy process atResins, the interviews and assessments by Morgan &Banks were purelyvoluntary. He said that of the 87 employees in the pool for Resins, a numberhad chosen not to be involved inthe interview process. Several of those whodid not participate had, nonetheless, retained their jobs. He also said thatwith regardto the proposed spill and fill, participation in the interview andassessment process would be voluntary. He claimed, though notaltogetherconvincingly, that employees who did not participate would not therebyjeopardise their possible employment prospectsin the future.

Legislative provisions

37Section 298K is to be found inPt XA of theAct which deals with freedom ofassociation. The objects of that part are set out in s 298A. Theseprovisions are designed, inter alia,to protect employees who wish to bemembers of particular unions: seeDavids Distribution Pty Ltd v NationalUnion of Workers[1999] FCA 1108;(1999) 91 FCR 463 at 500;Construction, Forestry,Mining and Energy Union v BHP Steel (AIS) Pty Ltd[2000] FCA 1008 at par48; andAustralian Workers' Union v John Holland Pty Ltd[2001] FCA 93at par 47.

38Section 298K relevantly provides:

"(1) An employer must not, for a prohibited reason, or forreasons that include a prohibited reason, do or threaten to do any of thefollowing:

(a) dismiss an employee;

...

(c) alter the position of an employee to the employee's prejudice;

...."

39Section 298L relevantly provides:

"(1)Conduct referred to in subsection 298K(1) or (2) is for a"prohibited reason" if it is carried out because the employee, independentcontractor or other person concerned:

(a)is, has been, proposes to become or has at any time proposed tobecome an officer, delegate or member of an industrial association;or

...

(l) in the case of an employee, or an independent contractor, who is amember of an industrial association that is seeking better industrialconditions - is dissatisfied with his or her conditions; or

...

(2)If:

(a)a threat is made to engage in conduct referred to in subsection298K(1) or (2); and

(b)one of the prohibited reasons in subsection (1) of this sectionrefers to a person doing or proposing to do a particular act, or notdoing orproposing not to do a particular act; and

(c)the threat is made with the intent of dissuading or preventing theperson from doing the act, or coercing the person to do the act,as the caserequires;

the threat is taken to have been made for that prohibited reason."

40Section 298V is applicable to proceedings alleging a contravention ofs 298K. It provides:

"If:

(a) in an application under this Division relating to a person's or anindustrial association's conduct, it is alleged that the conductwas, or isbeing, carried out for a particular reason or with a particular intent; and

(b)for the person or industrial association to carry out the conductfor that reason or with that intent would constitute a contraventionof thisPart;

it is presumed, in proceedings under this Division arising from theapplication, that the conduct was, or is being, carried outfor that reason orwith that intent, unless the person or industrial association provesotherwise."

41Section 170MU is similar, in many respects, in its structure and text to298K. It prohibits an employer from dismissing or otherwiseinjuring anemployee for engaging in prohibited action. It provides:

"(1) An employer must not:

(a)dismiss an employee, injure an employee in his or her employment oralter the position of an employee to the employee's prejudice;or

(b)threaten to dismiss an employee, injure an employee in his or heremployment or alter the position of an employee to the employee'sprejudice;

wholly or partly because the employee is proposing to engage, is engaging, orhas engaged, in protected action.

(2)Subsection (1) of this section does not apply to any of thefollowing actions taken by the employer:

(a)standing-down the employee;

(b)refusing to pay the employee where, under the common law, theemployer is permitted to do so because the employee has not performedwork asdirected;

(c)action of the employer that is itself protected action.

(3)In proceedings under section 170NF for an alleged contravention ofsubsection (1) of this section, it is to be presumed, unless theemployerproves otherwise, that the alleged conduct of the employer was carried outwholly or partly because the employee was proposingto engage, was engaging, orhad engaged, in protected action."

42Section 170NC operates in an entirely different manner. It prohibits thecoercion of persons in relation to certified agreements. The sectionprovides:

"(1) A person must not:

(a)take or threaten to take any industrial action or other action;or

(b) refrain or threaten to refrain from taking any action;

with intent to coerce another person to agree, or not to agree, to:

(c)making, varying or terminating, or extending the nominal expiry dateof, an agreement under Division 2 or 3; or

(d)approving any of the things mentioned in paragraph (c).

Note: The Court has certain remedial powers in relation to a contravention ofthis section: see Division 10.

(2)Subsection (1) does not apply to action, or industrial action, thatis protected action (within the meaning of Division 8).

(3)An employer must not coerce, or attempt to coerce, an employee ofthe employer:

(a)not to make a request as mentioned in subsection 170LK(4) inrelation to an agreement that the employer proposes to make; or

(b)to withdraw such a request."

43Unlike s 298K and s 170MU, s 170NC carries no reversal ofthe onus of proof.

The applicant's contentions in relation to ss 298K and170MU

44The applicant claims that the respondent has contravened both ss 298Kand 170MU of theAct. The claims brought under these provisions raise fordetermination issues that are closely related.

45Has the respondent, by its decision to introduce a spill and fill to meetredundancies brought out by plant closures:

(a)threatened to dismiss the NWU members at Olefins or

(b)injured those employees in their employment or

(c)altered their position to their prejudice

(d)for a "prohibited reason" orfor reasons which include a"prohibited reason" (s 298K) or

(e)wholly or partly because those employees have engaged in protectedaction (s 170MU)?

46It may be useful to focus firstly upon the manner in which the applicantpresents its claim under s 298K. As noted earlier,that section iscontained withinPt XA of theAct. It was introduced in its present formin 1996, replacings 334 of theIndustrial Relations Act 1988(Cth). That section in turn replaced s 5 of theConciliation andArbitration Act 1904 (Cth), the original predecessors of which wereintroduced as far back as 1914 and were themselves based upon New South Walesprovisions.

47The conduct proscribed by s 298K was originally treated by thelegislature as giving rise to criminal liability. However, since1996,contraventions of s 298K have given rise to civil penalties and otherremedial orders only. It has been suggested that thelegislative history ofthese provisions, which broadly speaking are designed to protect members oftrade unions from discriminationby their employers, extends back to a timewhen those organisations were more fragile institutions than they are today,and whenthey stood in need of a large measure of protection from employers:General Motors Holden Pty Ltd v Bowling(1976) 12 ALR 605 at 616 perMason J.

48The objects of Pt XA are remedial in nature. One such object is toprotect the rights of individuals who are members or officersof industrialassociations from discrimination and victimisation. Similar provisions inother legislation have been treated as remedialand construed beneficially:IW v City of Perth[1997] HCA 30;(1997) 191 CLR 1. Where a remedial law also has apenal aspect, such that the two principles of construction conflict, it hasbeen held that the principleof strict construction should yield to theprinciple of beneficial construction: seeEmployment Advocate v NationalUnion of Workers[2000] FCA 710;(2000) 173 ALR 479 at 487 per Einfeld J, and the casescited therein.

49The applicant submitted that in determining whether there has been acontravention of 298K the Court must identify and makefindings aboutthree discrete matters:

*the nature of the contravening conduct alleged must be identified - this isessentially the responsibility of the applicant informulating thecomplaint;

*it must determine whether any dismissal, injury or alteration of position ofan employee to the employee's prejudice, or any threatthereof, has beenproved; and

*it must determine whether, if such conduct is proved, it was carried out fora prohibited reason, or for reasons that includea prohibited reason.

50By virtue of the operation of s 298V, it is presumed in proceedingsbrought under s 298K, that the conduct was, or is being,carried out for aprohibited reason unless the respondent proves otherwise.

51The applicant identified the contravening conduct in the present case asbeing the decision to include the Olefins employeesin the pool from whichredundant employees would be selected. That decision was said to amount to:

*a threat of dismissal within the meaning of s 298K(1)(a);

*injury to those employees in their employment within the meaning ofs 298K(1)(b); and

*an alteration of their position to their prejudice within the meaning ofs 298K(1)(c).

52In relation to the contention that the contravening conduct in this caseamounted to a threat of dismissal, the applicant referredtoCPSU v TelstraCorporation Ltd[2000] FCA 844;(2000) 99 IR 238 at 244 where Finkelstein J observed:

"In the context of this legislation, there will not be a threatof proscribed conduct unless the employer communicates to his employeethatproscribed action will be taken. One meaning of the word "threaten" is tomenace or warn beforehand of an intention to inflictharm. That is the meaningthat should be given to the word in s 298K."

53The applicant relied upon this formulation and submitted that thecommunication by the respondent of its decision to conduct aspill and fillwas, relevantly a warning of an intention to inflict harm. The applicantsought to distinguish the present case fromMaritime Union of Australia vGeraldton Port Authority[1999] FCA 899;(1999) 93 FCR 34. There RD Nicholson J observed(at 78) that a threat of redeployment of any employees declining voluntaryredundancy could not initself amount to a threat to injure or alter theposition of an employee to the prejudice of that employee. As his Honournoted,it was not until the facts of the redeployment fell out that it would beknown whether the employees were injured or prejudiced.

54The applicant submitted that the contravening conduct in this case wouldboth injure the Olefins employees in their employment,and alter their positionto their prejudice. The applicant referred toPatrick Stevedore OperationsNo 2 Pty Ltd v Maritime Union of Australia[1998] HCA 30;(1998) 195 CLR 1 at 18 wheres 298K(1)(b) was said to cover "injury of any compensable kind" ands 298K(1)(c) was described as:

"...a broad additional category which covers not only legalinjury but any adverse affection of, or deterioration in, the advantagesenjoyed by the employee before the conduct in question."

55The applicant submitted that injury to the Olefins employees in theiremployment and the prejudicial alternation of position sufferedby them as aresult of being included in the spill and fill was that their employment wasthereby rendered less secure.

56The applicant next submitted that the decision by the respondent to conducta spill and fill in the present case had been takenfor a "prohibited reason",or "for reasons that included a prohibited reason". The applicant referred toMaritime Union of Australia v Geraldton Port Authority (supra) at 69where RD Nicholson J said:

"In my view the words "or for reasons that include a prohibitedreason" in s 298K(1) effect a change to the law and permit a reasonto bean operative reason provided it is one of the reasons for the conduct. Itwould not therefore have to be the "substantial"reason. It would have, ofcourse, to be "operative" - that is it would have to be a reason. Section 298Lis to be understood subjectto that requirement."

57Recently inAustralian Workers' Union v John Holland Pty Ltd(supra) Goldberg J referred to this passage with approval. His Honourconcluded that an employee had been dismissed by his employer to avertanindustrial stoppage by other employees who were members of a different union,and not because he was a member or proposed delegateof the AWU. It followedthat the employee's membership of the union was not an operative reason fortermination of employment.

58InAustralian Municipal, Administrative, Clerical and Services Union vGreater Dandenong Council[2000] FCA 1231;(2000) 101 IR 143 Madgwick J at 157 adopted aslightly different formulation from that of RD Nicholson J when he spoke of theneed for there to be"an actual, operative and significant reason". Nothingseems to turn upon the distinction.

59The applicant relied specifically upon each of ss 298L(1)(a) and298L(1)(l) as the prohibited reasons for the contravening conductwhich it wasalleged had been carried out.

60In so far as the applicant relied upon s 298L(1)(a) it was submittedthat the decision to have a spill and fill had been taken,in part at least,because the Olefins employees were members of an industrial association, namelythe NUW. The applicant submittedthat the expression "member of an industrialassociation" in the context of par (a) meant more than merely being a member ofsuchan association, at least in the sense of the formal requirements ofmembership. The applicant submitted that inDavids Distribution Pty Ltd vNUW[1999] FCA 1108;(1999) 91 FCR 463 at 500, Wilcox and Cooper JJ had adopted a broad viewof that expression, treating it as embodying the incidents ordinarilyassociatedwith such membership, including the taking of collective action inpursuit of industrial interests. This interpretation was saidby the applicantto accord generally with the approach taken to the legislative precursor ofpar (a) some years earlier by Gray JinGibbs v Palmerston TownCouncil (V28 and V29 of 1987, unreported, 21 December 1987). There hisHonour had referred to "the active" nature of the membership of theassociationas being the reason for the dismissal.

61The applicant noted that inAustralian Workers Union v BHP Iron-Ore PtyLtd[2001] FCA 3 Kenny J had purported to distinguishDavids, andappeared to have taken a narrower view of the concept of membership in thecontext of s 298L(1)(a). Her Honour said at par66:

"Paragraph 298L(1)(a) refers to membership of and holdingoffice in a union. I do not think it is intended to cover any broader notionthan that. Subsection s 298L(1) (which describes what is a prohibitedreason for s 298K(1) purposes) consists of fourteen detailedparagraphsand a number of subparagraphs designed to protect an employee's freedom to joina union and to participate in union activitiesin a number of disparatesituations. InDavids Distribution, their Honours were referring to theprotection conferred by s 298L(1), considered as a whole. Theirobservations do not providea basis for saying that par (a) ofs 298L(1) is concerned with anything other than being, or proposing tobecome, a member (or anofficer or delegate) of an industrial association. Theconcept of membership is recognised and dealt with in Part IX, Div 9 oftheWR Act. There is nothing in the terms of par (a) or elsewhere in theWR Act to justify the applicants' submission that par (a) isconcernedwith a person's activities as a member, officer or delegate of an industrialassociation. At least some of those activitiesare protected elsewhere ins 298L(1)...."

62The applicant submitted that to the extent that Kenny J had departed fromthe views of the Full Court inDavids Distribution Pty Ltd, herreasoning was "plainly incorrect", and should not be followed.

63The applicant submitted with regard to s 298L(1)(l) that it was plainthat the Olefins employees were members of an industrialassociation that wasseeking "better industrial conditions", and that they were relevantly"dissatisfied with" their conditions. That being so, it was submitted, it wasto be presumed, in accordance with s 298V, unless the respondent provedotherwise, thatthe contravening conduct was or is being carried out for thatparticular reason.

64The applicant's claim under s 170MU is closely related to its claimunder s 298K. However, s 170MU is not contained within PtXA ofthe Act. It is designed to protect employees from threats of dismissal, injuryin their employment, or the alteration of theirposition to their prejudice,where that conduct is carried out wholly or in part because they are engaged inprotected action. Theapplicant alleged that the respondent's decision toconduct a spill and fill and to include within it the Olefins employees wastaken,in part at least, in response to their having taken protected action.Once again, as with its claim under s 298K, the applicant reliedupon astatutory reversal of the onus of proof which applies by virtue ofs 170MU(3).

65The applicant noted that it was the respondent's case that the decision toconduct a spill and fill in which the Olefins employeeswere included had beentaken by two persons only, Mr Varney and Mr Blake. The applicant submitted,however, that the evidence pointedto a high-level policy body within thecompany, namely the Business Management Team ("the BMT"), being the actualdecision-maker. The BMT included among its members Mr Bob Fairley the ManagingDirector. It also included Mr Varney and Mr Blake. The applicantsubmittedthat the evidence demonstrated that the approval of the BMT was required inorder to implement the spill and fill. Itfollowed, it was submitted, thatevery member of the BMT was party to that decision.

66The applicant advanced this submission principally because a number ofmembers of the BMT were not called to give evidence inthis proceeding. Theapplicant contended that it must follow from the respondent's failure to callthese individuals that the onusof proof which rested upon the respondent tonegate the alleged motivation for the decision to conduct the spill and fillhad notbeen discharged. The applicant referred in particular in that regardtoIW v City of Perth (supra) at 32 per Toohey J, at 51 per Gummow J andat 65 per Kirby J.

67The applicant submitted, in the alternative, that if contrary to its primarysubmission the decision-makers were, in truth, MrVarney and Mr Blake, theevidence still pointed clearly to either or both of those individuals beingactuated by at least one ofthe prohibited reasons contained ins 298L(1)(a) and s 298L(1)(l). A further alternative submission wasthat Mr Varney and Mr Blakewere motivated, at least in part, by the fact thatthe Olefins employees were engaged in protected action.

68The applicant submitted that Mr Varney and Mr Blake had both lied when theyclaimed that the decision to conduct a spill andfill was not taken for anyprohibited reason, or because the Olefins employees had elected to takeprohibited action. In makingthat submission the applicant recognised that itscase was largely circumstantial in nature.

69In support of its claims, the applicant relied upon the followingmatters:

*The decision to conduct the spill and fill was taken hurriedly, and within avery short time of the decision by the Olefins employeesto take protectedaction.

*The spill and fill did not extend to employees at other plants who were notregarded as "troublemakers".

*The proposal for a spill and fill, and the criteria upon which the newselection process rested, made it clear that what was intendedwas a generalclean-out of employees whose attitudes and goals were not those of therespondent. Almost by definition, militantunionism could hardly be congruentwith the criteria for selection under this particular spill and fill. It wasunrealistic to expectemployees who had taken industrial action, and beenlocked out by their employer, to satisfy all of the chosen assessment criteria,still less for such employees to share the values of the company which laybehind the selection of these criteria.

*The decision to proceed with the spill and fill, and to utilise the Morgan& Banks assessment criteria while the strike andlockout were continuing,was intended to put the Olefins employees at a disadvantage, and was likely todo so.

*An examination of a number of internal company documents which had beenproduced on discovery by the respondent demonstrated thatneither Mr Varney norMr Blake had told the truth when they explained their reasons for havingdecided to conduct the spill and fill.

70Having regard to the importance that the applicant placed upon the internalcompany documents referred to above, and the extensivecross-examination of MrVarney and Mr Blake arising out of those documents, it is necessary to dealwith them specifically.

The internal company documents

71I shall not refer to each of the internal company documents relied upon bythe applicant in detail as it is not necessary todo so. However, I shall setout passages from those documents which were assumed to be of particularsignificance in the proceedingbefore me. In chronological order they are asfollows:

*A draft version of EA III produced on 18 February 2000 setting out indetail a process for addressing the impact of restructuringupon employees whomight, at some future stage, be made redundant. The significance of thisdocument from the applicant's pointof view was that what was contemplated, atthat stage, was that all redundancies would be voluntary. The applicantinvited me toconclude that the respondent's subsequent change of position wasbrought about by the industrial action taken by the Olefins employees.

*A memorandum dated 1 March 2000 sent by Mr Rohan Hodges to a number of othermanagers, including Messrs Varney and Blake, in whichMr Hodges said:

"Positive negotiation of the EA to an agreed outcome appears tohave come to an end at least for a period with significant pointsof differencebetween the company position and the union negotiation team. The majority ofthe areas of disagreement appear to bedriven principally from the rejection byOlefins operators led by David Mizon of almost all areas of proposedchange."

The applicant submitted that this document was significant because it showedthat the Olefins employees were regarded as being troublemakers.

*A memorandum dated 28 April 2000 by Mr Fairley on behalf of the BMT to theBoard members of Qenos. He referred to the negotiationsfor EA III whichhad been underway since October 1999, noting that the SBU had rejected allmatters agreed by the ULT. Mr Fairleyobserved:

"The rejection was led by one or two members of the NUW from theOlefins site, who unfortunately carried the day with the entiregroup."

This document too was said to throw light upon the views of managementtowards the Olefins employees.

*A memorandum dated 11 May 2000 sent by Mr Fairley to, among others, Mr Varneyand Mr Blake, in which Mr Fairley noted that negotiationson EA IIIappeared to have broken down, and commented:

"The two problematic issues are Non-Rostered work for Operatorand Task Sharing. Both are requited enablers for us to be able toaccomplishthe changes needed to meet MCP targets. The disagreement with the companyposition is not widespread; NUW Olefins operatorsare the most vocal opponentsto changing non-rostered work rules, while the Metals union is most vocalagainst task sharing."

Once again, this document was said to identify the Olefins employees asbeing responsible for the failure to reach agreement on EAIII.

72There then followed a series of memoranda sent between 1 June 2000 and 13June 2000 in which company managers expressed frustrationand annoyance at theinability of the company to finalise negotiations with the unions regardingEA III. These included:

*A memorandum dated 1 June 2000 sent by Mr Rob Berton in which he spoke of theneed for "culture change" within the company. MrBerton spoke also of a needto

"...ditch the EA and prepare to write one up only with a "new"workforce that has clearly committed to a business focus culture."

Mr Berton went on to raise the possibility of shutting down the HP (or otherplants) and spoke generally in favour of "taking thisproactive culture changeshutdown option".

*A memorandum dated 2 June 2000 sent by Mr Hodges in reply to Mr Berton'srecommendation in which Mr Hodges referred to "workplacerenewal" as being thecompany's "weakest area". Mr Hodges noted a reluctance on the part ofshareholders to retrench and re-hiresignificant numbers. He commented:

"If we shutdown Scal-1, HPPE, Elastomers and Resins PP then Ican guarantee a workforce renewal in the remaining small workforce ifyoumanage the change program properly."

The applicant submitted that one of those to whom this memorandum was sentwas Mr Blake.

*A memorandum dated 11 June 2000 sent by Mr Blake in response to Mr Hodges'memorandum in which Mr Blake agreed that there wasa need to change "the heartsand minds" of the workforce.

73There followed a series of memoranda in October 2000. These included:

*A memorandum dated 10 October 2000 entitled "Dispute resolution" sent bye-mail by Mr Les Harman at 10.30pm that evening, to MrBerton and Mr Blake.That date was, of course, the date on which the Olefins employees gave formalnotification to the respondentof their intention to take protected action.The applicant relied heavily upon this memorandum. I propose to set it out infull. It reads as follows:

"Rob, Del

My thoughts on this are

We have arrived at a point where up until about a month ago I had hoped andto some point believed that we shouldn't need to getto, to move our businessforward. The NWU attitude displayed in the last month tells me that my faithin the good sense of mostof the operators was somewhat misplaced. At thispoint in time (today) I believe we have now passed a point on no going backwhatwas on the table for the Olefins operators.

We must now make a significant change to the manner in which our shiftsbehave towards our business needs.To achieve this there are a significantnumber (20-30) of our technicians who must never be allowed to set foot in ourplant againstpost this Saturday.It is imperitive(sic)that we develop a legal strategy to achieve this within the next fewdays. Olefins leadership team will develop a plan to run the plantwith less people while we skill up the required number of extrapersonnel.

It is also vital that we do not allow the NUW to attract the sympathy ofother Unions or staff work groups. I sense at this stagethat the rest ofthese groups see the NUW as a common enemy and we must maintain this attitudeeven to the extent of keeping thememployed in relatively menial work.

Once the return is eventually settled we then need to work on immediatelybuilding a strong relationship with the workforce thatreturns using our PROFHTvalues. I want to work for a business where these values are felt right acrossthe board.

I will iterate that having reached this point we must not accept a returnthat allows the NUW to think they have had any sort ofvictory and just asimportantly that other unions would see that the NUW achieved anything withthis action. This position mustbe maintained regardless of how long ittakes.

Les"(emphasis added)

*Mr Blake responded to Mr Harman's memorandum at 10.38pm, within minutes ofreceiving it. He sent copies of the following memorandumto, among others, MrBerton, Mr Harvey and Mr Varney. Mr Blake said:

"Les - I agree with your sentiments. I have spent most oftoday trying to establish exactly how to achieve this aim. On theone hand we need to make the necessary changes in Olefins before a return towork; on the other hand we mustn't dis-enfranchiseall the other folk on theAltona site in the process. The path isn't easy to find and will be difficultto follow. Rest assuredwe will be continuing to explore ways forward until wehave the right one. Thanks for your support. Best regards. "(emphasisadded)

The applicant submitted that this memorandum revealed Mr Blake's true stateof mind and the real reason why he supported a spill andfill which includedthe Olefins employees. Mr Blake's aim was to rid the company of a significantnumber of those employees, andthe spill and fill was the method by which thataim was to be achieved.

*On the following afternoon, 11 October 2000 at 2 pm, Mr Varney sent a copy ofMr Harman's memorandum to a number of members ofAEACT. It is apparent from MrVarney's e-mail that Mr Blake had referred to that memorandum at the meeting ofAEACT held earlierthat day.

*A memorandum entitled "Strategy Update" dated 23 October 2000 was sent by MrVarney to, among others, Mr Blake in which he referredto there being "2 AltonaEA options". It is not necessary to set out fully what was contained in MrVarney's memorandum. However,it should be noted that it was said to have beenwritten before any firm decision had been taken to close either of the twoplantsat Altona, or to deal with the problem of redundancies created by thatdecision by a spill and fill. Under the heading "Strategy2" Mr Varney'smemorandum included the following passage.

"Starting point

*EAIII voted up

but

*Dispute with Olefins

Introduce fundamental business change ie 2 plant closures (HP and SBR).Note: need solid business case justification.

Hence, site-wide spill. Note: site-wide to be defined by business case.

Fill all positions on the basis of competency.

Avoid 3 problems:

1."site-wide spills deals with victimisation

2.fundamental business change deals with not bargaining in goodfaith

3.better costs/benefits

Costs: 3 X $10M plus 40 redundancies at Olefins

Benfits: 8 jobs gone plus cracker performance $20M per year plus EAIII allstops out plus 2 plant closures

plus lots of deployment

Fill on the basis of competency

..." (emphasis added)

The applicant submitted that Mr Varney's reference to the need for a solidbusiness case justification demonstrated that he was awareof the need to makeit appear that the relevant decisions were being taken for sound commercialreasons, when in truth they werebeing taken for prohibited reasons.

*A memorandum entitled "Workforce Renewal" dated 27 October 2000 sent by MrBlake to, among others, Mr Varney. This memorandumspoke of the closure ofseveral of the plants at Altona and relevantly commented:

"...

5: As we shutdown whole plants we need to take the opportunity to upgradeour workforce on the long term core plants, by allowingthe best people to bechosen between the shutdown plants and the core plants. This would be done byselection against criteria.

6: There are skill synergies between HP and LP ....

7: Hence, when for example HP is shut we would look to spill and fillbetween LP and Olefins.

8: When PP is shut we would look to spill and fill between PE and Olefins.

9: When BR and/or SBR are shut we would look to spill and fill withOlefins.

10: This allows us to continuously upgrade our workforce in the long termcore plants. In the long term we must have the best workforcepossible in eachof these plants. Workforce competency is an essential part of potentialcompetitive advantage."

*At an AEACT meeting on 1 November 2000 the minutes record thefollowing:

"7 Strategy Update

There are two future announcements that will impact upon the resolution ofthe NUW dispute and EA3:

(1)The Boarding (sic) meeting agreed in principle that SBR and HP willclose within six months.

(2)The BMT has made the decision that as a result of the plantclosures there will be a "spill & fill" process and that Olefins willbepart of the pool. This process has been chosen to ensure the future needsof the business are met, objective criteria can be used and it ensuresthat thebest people are kept." (emphasis added)

The applicant submitted that this memorandum provided support for its claimthat the relevant decision-maker was the BMT, and notMr Varney or Mr Blake.

*A memorandum dated 8 November 2000 sent by Mr Blake to, among others, MrBerton and Mr Harvey, setting out several possible rationalesfor not havingincluded the Resins' contractors in the proposed spill and fill. The applicantclaimed that this memorandum supportedits contention that the decision toconduct a spill and fill had been taken for prohibited reasons.

74The applicant submitted that in the face of these internal companydocuments, the evidence given by Mr Varney and Mr Blake thatthey had not beeninfluenced in any way by any consideration other than the desire to retain asemployees those who were the "bestfor the job" rang hollow, and should berejected.

75The applicant also relied upon what it submitted was the unexplained failureof the respondent to call a number of other keyplayers who, on the basis ofthese internal company documents, had obviously played a role in the decisionto conduct a spill andfill. The applicant submitted that I should infer fromthe respondent's failure to call then that their evidence would not haveassisted the respondent's case:Jones v Dunkel[1959] HCA 8;(1959) 101 CLR 298.

76Finally, the applicant commented upon what it submitted was the fact thatthere were surprisingly few contemporaneous recordsdiscovered regarding theactivities of the BMT at the time in question. The implication was that therespondent had either not discoveredrelevant documents, or that the BMT hadnot committed to paper discussions which might be embarrassing.

The applicant's claim under s 170NC

77The applicant's claim under s 170NC is that the respondent's decisionto conduct a spill and fill which included the Olefinsemployees amounted toaction taken to coerce those employees into accepting EA III. Theapplicant submitted that it was plain thatthe respondent wanted the NUW to bepart of a single site-wide certified agreement. It should be inferred that thedecision to conductthe spill and fill was taken as a coercive measure by whichthat objective could be achieved.

78The applicant recognised that the first issue to be determined was whetherthe decision to conduct a spill and fill was capableof amounting to "coercion"within the meaning of that term in s 170NC. The applicant referred to thejudgement of Finkelstein JinFinance Sector Union v Commonwealth Bank ofAustralia[2000] FCA 1372 in support of this contention. The applicantsubmitted that the relevant decision amounted to a threat of dismissal, andthereforeconstituted coercion. Alternatively, it was submitted it constitutedcoercion because it rendered the Olefins employees' employmentless secure.

79As I understood the applicant's argument, it was also contended that therespondent had sought to coerce the Olefins employeesinto acceptingEA III by having instituted proceedings in the Supreme Court of Victoriain response to certain picketing activities. It appears that the respondenthad obtained an injunction against those activities which was subsequentlylifted because of a failureon the respondent's part to have made fulldisclosure of all relevant matters.

80The applicant submitted that if it established any of the contraventions ofthe Act upon which it relied the appropriate formof relief would be aninjunction that would prevent the respondent from including the Olefinsemployees in the spill and fill. Theapplicant also submitted that penaltiesshould be imposed for those contraventions.

The respondent's contentions as to law

81In its contentions as to law, the respondent addressed firstly theconstruction of s 298K. It submitted that this section wasdirected to anexamination of the circumstances of individual employees, and had noapplication to a claim made by an industrialassociation purporting to act onbehalf of a broad and general class of employees.

82The respondent relied in support of this submission upon the reasoning of aFull Court comprising Black CJ, Beaumont and RyanJJ inBHP Iron Ore Pty Ltdv Australian Workers' Union[2000] FCA 430;(2000) 171 ALR 680. Their Honours said at 689:

"It has to be borne in mind, in construing s 298K, that itproscribes conduct by "an employer" directed to "an employee" or"other person" (emphasis added).That use of the singular suggeststhat the alleged injury or alteration of position has to be examined in thelight of the circumstancesof each individual employee. (It is not thepoint that in the interpretation of statutes, the singular ordinarily includesthe plural; here we are concernedwith the indications of legislative intentionto be discerned from the actual language used.) It is also significant thatthe conductstruck at by each paragraph of s 298K is expressed by anactive verb: "dismiss", "injure", "alter the position", "refuse to employ",and "discriminate". That implies that the proscription is essentially againstan intentional act of the employer directedto an individual employee orprospective employee."(emphasis added)

83The respondent referred also to pp 698-703 of that judgment.

84The respondent relied also upon the judgment of Finkelstein J inCPSU vTelstra Corporation Ltd[2000] FCA 844;(2000) 99 IR 238 at 245-246 where his Honour saidof, in relation to the passage set out above:

"This passage indicates that it is necessary to assess theposition of each individual employee in order to decide whether that employeehas been injured or has had his position prejudicially altered. Theimplication is that the subject for investigation is the actualeffect of theconduct about which complaint has been made. It is not sufficient for there tobe only an intention to act againstan employee for it to be concluded that anemployee has been injured or has had his position altered. Before that canoccur theintention must be acted upon in some way.

This is not to say, however, that the Court is powerless to intervene in thecase of an imminent risk of injury as distinguished frominjury which hasalready been inflicted. The power of the Court to grant quia timet relief toprevent a contravention of s 298Kis not in doubt ... No application hasbeen made for such relief, perhaps because of the difficulty of framing anappropriate order...

Be that as it may, although there has been a "threat" to contravenes 298K(1) in the sense understood by equity lawyers, there hasbeen noactual contravention of that section ...."

85Finally the respondent relied upon the judgment of Kenny J inAustralian Workers' Union v BHP Iron Ore Pty Ltd (supra)at pars 53-54where her Honour observed:

"Section 298K(1) is, upon this view, concerned with theconduct of an employer that is directed to an individual employee. This doesnot mean that in dismissing one employee who is a union member for a prohibitedreason, an employer commits a civil wrong, and thatwrong is not committed if,for the same reason, the employer dismisses all employees who are unionmembers. The Full Court was directingits attention to the nature of theinjury contemplated by the provision. That is, the conduct in question mustinjure an employeeindividually in the sense that it would have injured him orher, regardless of whether it was actually done to an individual employeeor agroup of employees. The relevant inquiry is whether an employer has, by theemployer's conduct, injured the position of anemployee individually: ... TheFull Court[in BHP Iron Ore Pty Ltd v Australian Workers Union[2000] FCA 430;[2000] 171 ALR 680]must have intended to exclude conduct that injuredindividuals only when directed to a class of employees."

86The respondent next submitted that unless the operation of s 298K(1)is first attracted, there is no reason to embark upon an examinationof theissues raised by s 298L, much less whether s 298V comes intooperation. The respondent submitted that the mere possibilitythat someOlefins employees might not be selected for retention at the conclusion of thespill and fill did not give rise to anycontravention of s 298Kbecause:

*announcing that a decision will be made at some date in the future as towhich employees from among a particular pool will bemade redundant, and whichemployees will be kept on, according to specified criteria, is incapable, ofitself, of amounting to a"threat" to dismiss any individual employee;

*a decision of that type is not capable, of itself, of constituting an injuryto any particular employee in his or her employment;and

*nor is a decision of that type capable, of itself, of prejudicially alteringthe position of any employee.

87The respondent submitted that having regard to the size of the potentialpool, the number of positions to be made redundant,and the number of Olefinsemployees, it was clearly not possible that all these employees could losetheir employment as a resultof the spill and fill. The respondent submittedthat until that process had been completed it was not possible to ascertainwho,among the Olefins employees, would not be retained.

88The respondent acknowledged that the decision to conduct a spill and fillmight well have led the Olefins employees to believethat their jobs were lesssecure than they had previously been. The respondent submitted that this didnot mean that those employeeshad been threatened with dismissal, injured intheir employment, or had their positions altered to their prejudice. Thecreationof a sense of job insecurity, without more, was said to be incapableof amounting to any of the forms of contravening conduct containedwithins 298K. Presumably this was on the basis that such a belief on the partof the employees was too intangible, and far removedfrom, the actual harmwhich was proscribed by that section. The respondent acknowledged that it waspossible that contravening conductmight be demonstrated in relation to anyindividual employee made redundant after the spill and fill had been completed.That woulddepend upon the reasons for that particular employee beingterminated. The relevant decision-maker, whose reasons would be scrutinised,would be the person who decided not to retain that particular employee, and notthe person who decided that there should be a spilland fill to deal with theproblem of redundancies. The respondent submitted, however, that the presentapplication had been institutedprematurely, and until the position hadcrystallised, it could not be said that there had been any contravention of theAct.

89The respondent submitted that upon the true construction ofs 298L(1)(a), it could not be said that the decision to conduct aspilland fill was taken for a prohibited reason. That provision established that itwas a prohibited reason to take contraveningconduct because an individualemployee was an officer, delegate or member of an industrial association. Itwas those specific characteristics,rather than other features typicallyassociated with trade unionism generally, which had to actuate, in whole or inpart, the conductimpugned.

90The respondent relied in support of this submission upon the observations ofKenny J inAustralian Workers' Union v BHP Iron Ore Pty Ltd (supra)discussed above. The meaning of the term "member" in that context was to berestricted to membership of an industrial associationas such, and did notextend to a person's activities as a member of such a body. The respondentsubmitted that there was nothingto suggest that the decision to implement aspill and fill had been taken by reason of the union membership of the Olefinsemployees,still less by reason of any individual Olefins employee's unionmembership. It was submitted that those Olefins employees retained,and anythat might be made involuntarily redundant, would all share the commoncharacteristic of membership of the NUW. It was submittedthat it followedthat their membership as such could not relevantly be described as an"operative" reason for the decision to conducta spill and fill.

91The respondent also submitted, that it was clear there are other NUW membersat the Altona plants. Those employees would, onany view, be retained. Thatfact alone denied the proposition that union membership as such, or membershipof the NUW in particular,had been a factor in the decision to conduct a spilland fill.

92In relation to s 298L(1)(l) the respondent submitted that theapplicant's case rested upon little more than a bare allegation. It wassubmitted that the evidence did not go beyond demonstrating that at some stageearly in October 2000 the NUW declared itssupport for the independent stancetaken by the Olefins employees. The NUW position which crystallised on 4October 2000, and whichgenerated the subsequent protected action, was said tobe one of resistance to change, not one seeking "better industrial conditions"or expressing "dissatisfaction" with existing conditions.

93Finally, the respondent submitted, s 298L(1)(l) must be interpretedfrom the point of view of individual employees, and not theOlefins employeesas a class. The evidence demonstrated that those employees were not unanimousin their decision to take protectedaction. Moreover, the evidence failed todemonstrate that any individual employee was relevantly dissatisfied with hisconditionsof employment.

94Turning to s 170MU the respondent submitted that this provision shouldbe construed in the same manner as s 298K. Accordingly,attention must bedirected to the circumstances of individual employees. The respondentsubmitted that no occasion had yet arisenfor any such examination.

95Finally, the respondent turned to s 170NC. As noted earlier, unlikes 298K and s 170MU, s 170NC carries no reverse onus.

96The respondent submitted that s 170NC should be construed strictly, inaccordance with the approach taken by Gyles J inFinance Sector Union vCommonwealth Bank of Australia[2000] FCA 1468 and not in the broader sensesupported in some of the other authorities dealing with this section. InFinance Sector Union v Commonwealth Bank of AustraliaGyles J observedthat the proper construction and application of the section was not settled.He said at pars 18-34:

"18.The critical question is the meaning of the word "coerce"in s 170NC. There is an inconclusive discussion of that question bytheSupreme Court of Victoria Court of Appeal inNational Workforce Pty Ltd vAustralian Manufacturing Workers' Union (No 2)(1997) 76 IR 200 at 221. Theonly other general statement in the cases which have dealt with the section towhich I have been referred is that byFinkelstein J in his interlocutoryjudgment inFinance Sector Union v Commonwealth Bank of Australia[2000] FCA 1372, where his Honour said (at par 44):

"What constitutes coercion? Presumably it is no more than one form ofinducement, but a particularly nasty form. A person willcoerce another to actin a particular way if the first person brings about that act by force. It isfor that reason that a threatwill amount to coercion. Coercion will cause aperson to act in a way that is, in a sense, non-voluntary (I do not meaninvoluntaryin the legal sense)."

That was said in a context in which his Honour was considering s 298M as wellas s 178NC.

...

19.The Macquarie Dictionary defines "coerce" in the following way:

"1. To restrain or constrain by force, law, or authority; force or compel, asto do something. 2. To compel by forcible action."

The New Shorter Oxford English Dictionary defines "coerce" as:

"1. Forcibly constrain or impel (into obedience, compliance, etc); force orcompel to do. (b) Enforce. 2. Enforce obedience; use coercivemeasures."

"Coercion" is defined in the New Shorter Oxford English Dictionary as:

"1. Constraint, restraint, compulsion; the controlling of a voluntary agent oraction by force. 2. The faculty or power of coercingor punishing; the powerto compel assent. 3. Government by force; the employment of force to suppresspolitical disaffection anddisorder. 4. Physical pressure; compression. Nowrare."

20.The legal dictionaries refer to line of authority which was summarised inNational Workforce v AMWU (No 2) (supra) at 221 asholding that the word"coerce" required wrongful, illegitimate or illegal action or, at any rate,the negation of choice (Allenv Flood[1898] AC 1 at 98, 128-9; Hodges v Webb[1920] 2 Ch 70 at 86-7; White v Riley[1921] 1 Ch 1; and Goddard v Osborne(1978) 35 FLR 122). I confess to having some difficulty in understanding thediscussion of a legal as opposed to an ordinary meaning of "coercion" inNational Workforce v AMWU (No 2) at 221. All of the dictionary meaningsinvolve the negation of choice or compulsion. In my opinion,there is asignificant difference in ordinary meaning between concepts such as influence,persuasion, inducement and the like, onthe one hand, and coercion, on theother.

...

25. I am satisfied that the ordinary meaning of "coerce", the line of casesbeginning with Allen v Flood (supra) to which I havereferred (particularly inan industrial setting) and the authorities in relation to s 170WG, particularlythat of the Full Courtin Schanka, all point in the same direction, and are tobe applied. This conclusion is directly contrary to proposition (3) putby MrHodgkinson, and requires further consideration of his propositions (1) and(5).

26.The genesis of proposition (3) (see par 16) is to be found in theinterlocutory judgment of Merkel J in Australian Workers Unionv YallournEnergy Pty Ltd (1999) 95 IR 207 ([2000] FCA 65). In that case (as here) theparties were engaged in bargaining duringa bargaining period initiatedpursuant to s 170MI of the Act. Industrial action caused the Yallourn Energysite to cease functioning,leading to financial losses by Yallourn Energy ofmany millions of dollars (and serious power shortages in Victoria). The unionsclaimed that the industrial action was protected action for the purposes of theimmunity granted under s 170MT(2). Merkel J heldthat on a prima facie basison the evidence before him it was likely that the action was protected.

27.Yallourn Energy gave notice to the Industrial Relations Commission ("IRC")under s 166A of the Act of its intention to bringan action in tort against theunions and their officers, members and employees arising out of the industrialaction. In the event,a certificate was only sought in relation to the conductof the unions and not of its members. The IRC granted the certificate,withthe consequence that Yallourn Energy was entitled to commence proceedings intort in relation to the industrial action. Proceedingswere brought by theunions to restrain the bringing of any such proceedings as to do so would be abreach, inter alia, of s 170NC(1)of the Act. Reliance is placed on behalf ofthe Bank upon the following passage from the judgment (at 73) in relation tothe findingthat there was a serious issue to be tried under s 170NC:

"There is a degree of unreality about the submission of counsel for YallournEnergy that the threatened proceeding is extraneousto and is unconnected withthe employer's bargaining position in relation to the new enterprise agreement.Earlier in these reasonsI outlined the steps taken by the various parties inthe course of the present dispute. In my view each step and counter step bythe parties in the current dispute appears to be intended to advance theirrespective bargaining positions in relation to the newenterprise agreement.Whilst there will be additional reasons for particular conduct to be engaged induring the escalation of thedispute, each step appears to be integrallyrelated to each party's position in the bargaining process. Thus, whilst areason forthe proposed proceeding might be to recover loss, I would infer fromthe limited evidence before me that, on a prima facie basis,the proposedproceeding is another step to assist the position of Yallourn Energy in thebargaining process." (emphasis added)

28.This concept appears to be directly reflected in the interlocutory judgmentof Marshall J in Construction, Forestry, Mining& Energy Union v MultiplexConstructions (supra):

"27.A reason for the Supreme Court action, or further proposed Supreme Courtaction, may well be to recover financial loss butif it is also taken withintent to advance a position in a bargaining process or detract from theposition of a party in the bargainingprocess s 170NC(1) of the Act will becontravened."

29.For the sake of completeness, I should say that I derive little assistanceon the question of construction from the interlocutorydecisions in CFMEU vMaster Builders Association of Victoria (No 1)[2000] FCA 168, CFMEU v MirvacConstructions Pty Ltd(2000) 96 IR 458 ([2000] FCA 341) and Auspine Ltd v CFMEU[2000] FCA 501.

30.It is clear that if the passages of Merkel J and Marshall J relied upon bythe Bank are intended to state the test for breachof s 170NC, then they arefar wider than, and inconsistent with, my construction of the section. MrKimber SC, for the Union, submitsthat they do not represent the consideredview of either judge as the proper construction of intent to coerce in s 170NC,but aremerely observations in the course of urgent interlocutory proceedingsduring a far reaching industrial campaign. He submits thatthey are to beunderstood in a context where it was held that there was a prima facie casethat most of the industrial action hadbeen protected action.

31.I agree with Mr Kimber's submissions. Neither of their Honours expressthemselves in a manner which suggests that he was resolvingan issue as to theconstruction of the section, and neither refer to pertinent authority. This isnot surprising in view of thenature of the proceedings. The fact that theresult in these, as well as other, interlocutory decisions might have beendifferentif what I regard as the proper test had been applied is not to thepoint.

32.I should also refer again to the decision of Finkelstein J in FinanceSector Union v Commonwealth Bank of Australia (supra),a case between theseparties arising out of the very negotiations which are the context for thiscase. I have already set out par44 (see par 18). His Honour later said (atpar 51):

"The question for the bank then was how it could force the union to accept itsJuly offer, remembering that it was of the view thata higher offer was notcommercially justified. The bank needed to find a lever to compel the union toact. The union was reasonablyaggressive in its negotiations, with the supportof its members."

33.These passages are consistent with my view as to the necessity forcompulsion if coercion is to be intended within the section. His Honour doesnot, however, refer to the necessity for the means of coercion to be unlawful,illegitimate or unconscionable. The Bank submits that his Honour must havetaken the view that it was unnecessary to so find, because it is difficult tosee howit could be concluded on any basis that offering Australian workplaceagreements to workers could be so described without denudingthat requirementof all content. Far from being unlawful, illegitimate or unconscionable, theAct encourages the offer of Australianworkplace agreements by employers toemployees (cf Ryan J in Maritime Union of Australia v Burnie Port Corporation(supra) para 61-72). Indeed, it is submitted on behalf of the Bank that if thedecision of Finkelstein J was correct, it follows that it should succeedon itscross-claims.

34.I do not agree. It would be rare (if ever) that a decision as to whetherto grant an interlocutory injunction would be of laterprecedent value on asubstantive issue of law, particularly an issue of law not directly addressedin the decision. I am not concernedwith the correctness or otherwise of thedecision. I appreciate that the result is that the Bank may have the worst ofall worldsin relation to the current negotiations, but I cannot let thatgovern my construction of the statute. The interlocutory orders restrainingthe Bank will only be in operation until further order of the Court, andpresumably there will be an urgent final hearing to alleviatethe unfairness tothe Bank which will ensue if it ultimately succeeds. In any event, as I havesaid, his Honour did apply an intentto compel test which is consistent with myview of the section."

97The respondent submitted that, applying his Honour's approach to theevidence in the present case, there was no contraventionof s 170NCbecause:

*there was no evidence that anything done by the respondent in connection withthe negotiations for EA III was, whether so faras the NUW was concernedor otherwise, "unlawful, illegitimate or unconscionable"; and

*there was no evidence that the respondent was resolved to insist that the NUWbecame a party to the certified agreement, muchless that it intended to compelsuch a result regardless of the wishes of the NUW.

The respondent's contentions as to fact

98The respondent emphasised the history of the Qenos operations at Altona, andthe fact that since December 1992, the four unionsthat were party to the awardand certified agreement applying at the site had formed a "single bargainingunit". That pattern ofindustrial regulation had been broken when, for thefirst time, the Olefins employees and the NUW asserted a claim for a separateagreement, after those employees had been outvoted by their fellow workers at amass meeting. Shortly thereafter they took protectedaction to further theirclaim.

99The protected action caused the Olefins plant to close. Within a short timethe other plants at Altona had closed as well. The Olefins employeesunderstood that this would occur and intended to bring about this result.

100The respondent submitted that it had done no more than resist the pressureplaced upon it by the industrial action taken bythe Olefins employees, andthat it had acted legitimately in doing so. The decision to close the twoplants had been taken for soundcommercial reasons, and not in response to thatindustrial action. The desire to persevere with a single site agreement hadbeentaken because separate agreements would, as Mr Varney put it, amount to a"potential dog's breakfast". The respondent's attemptsto proceed tocertification of EA III could not, in context, amount to the use of"illegitimate, unlawful or unconscionable" meansor pressure. Nor could therespondent's desire to adhere to its objective of maintaining the site-widepattern of industrial negotiationbe described as evidence of intent to coercethe applicant, or the Olefins employees. Accordingly, the respondentsubmitted, theclaim under s 170NC should be dismissed.

101In relation to the claims under ss 298K and 170MU, the respondentsubmitted that Mr Varney's account of the commercial environmentin which thedecision to close the two plants had been taken should be accepted. It wasclear that this decision, though finallytaken only in late October 2000, hadbeen under consideration for a substantial period of time. The applicant hadnot suggestedthat the decision to close the plants had been taken because ofthe industrial action of the Olefins employees. The respondent submittedthatthere was no basis for any such conclusion. At its highest for the applicantthe evidence suggested that the decision to closethe plants may have beenbrought forward by a short period by reason of the industrial strife atAltona.

102The respondent noted that the decision to close these two plants had beentaken in the context of a proposal to convert theSCAL-1 plant to ethane feed,rather than oil-based feed. That conversion of the SCAL-1 plant would have ledto the closure of theBR plant at Elastomers and the Poly plant at Resins byaround 2003.

103The respondent submitted that it was clear that the decision to conduct aspill and fill was taken by Mr Varney and Mr Blake,and not by anyone else.Neither the possibility, advanced purely hypothetically, that Mr Fairley hadthe power to intervene and/orto veto their decision, nor the possibility thatserious resistance from the BMT might have prompted further consideration ofthisdecision, provided any foundation for the applicant's suggestion that MrVarney and Mr Blake were not the relevant decision-makers.

104In support of this submission the respondent referred to certainobservations of Kenny J inAustralian Workers' Union v BHP Iron Ore Pty Ltd(supra) at pars 172-173. There her Honour held that the mere fact that acommittee had power to veto a particular proposal did not meanthat thecommittee made the operative decision.

105The respondent submitted that Mr Varney and Mr Blake had each given acredible explanation as to why a spill and fill whichincluded the Olefinsemployees was regarded as the most appropriate course to follow.

106Both Mr Varney and Mr Blake said that once the Board had determined toclose the two plants, and it became clear that therewould be further plantclosures in the future, they had to turn their minds to the problem of how todeal with redundancies. Bothsaid that they had considered the possibility ofvoluntary redundancies, but rejected that option because they believed that thecompany would lose the services of some of its best employees by following thatroute. Both said that their aim was to retain thebest of the current crop ofemployees, and that they considered that a spill and fill, conducted byindependent human resources experts,such as Morgan & Banks, was thepreferred method for identifying those employees.

107Mr Blake said that the precise details of the spill and fill had not yetbeen finalised. He said that originally it had beencontemplated that thosewho received the lowest scores upon the basis of the assessment criteria wouldbe made redundant. However,the current thinking was that perhaps only thethirty or so at the bottom of the rankings would be dismissed. Above thatnumbera range of factors would be taken into account. Mr Blake said thatwithin that group, the willingness to take voluntary redundancymight be takeninto account. He also said that assuming that two candidates were otherwiseapproximately equal when assessed againstthe selection criteria, preferencewould be given to an employee with experience in operating a particular plant,rather than anemployee who might have to receive extensive training in orderto do so.

108The respondent submitted that the conclusions arrived at by Mr Varney andMr Blake regarding the undesirability of voluntaryredundancies were supportedby the independent views of the experts at Morgan & Banks. The respondentsubmitted that there wasno reason to doubt Mr Varney's honesty or integritywhen he said that so far as he was concerned the selection process to befollowedhad to be open and objective.

109The respondent drew attention to nature of the selection process to befollowed. Mr Jamieson and Mr Bristow described thatprocess in detail. Itwill be recalled that Mr Jamieson had been the project team leader for thespill and fill that had been conductedin Resins in May 2000. Mr Bristow hadbeen involved in that process. He had considerable experience with theproblems associatedwith large-scale redundancies, and he had been involved inorganising spill and fill processes on previous occasions for other clients.

110The respondent submitted that it was clear that the assessment of personalcapacities had been common in the recruitment ofOlefins employees since the1970s. For external applicants seeking work in the Olefins plant it had beenroutine to carry out referencechecks. Internal applicants had been assessedin the light of information provided by their supervisors. These features wereincorporatedin the proposed spill and fill.

111The respondent submitted that there was nothing to suggest that thedecision taken by Mr Varney and Mr Blake to handle the problemof redundanciesby conducting a spill and fill had anything to do with union membershipgenerally, or membership of the NUW in particular. There was nothing tosuggest that the NUW would cease to represent those employees who remained atOlefins. There was no evidencethat either the traditional pattern ofrepresentation, or the traditional method of negotiating enterprise agreements,would change.

112The respondent submitted that once the Qenos Board had approved the closureof the two plants it was both logical and inevitablethat the resultingredundancies would be handled in a way that would give effect to therespondent's long-term corporate objectiveof "workforce renewal". Thatobjective would be pursued whether or not industrial action took place.

113The respondent also submitted that it was a striking feature of theinternal company documents upon which the respondent's witnesseswereextensively cross-examined that they did not at any point suggest a connectionbetween the decision to conduct a fill and spill,and either of the prohibitedreasons identified by the applicant:Australian Workers' Union v BHP IronOre Pty Ltd (supra) at par 218 per Kenny J.

114The respondent submitted that it was abundantly clear that not all of theOlefins employees would be made redundant. Mr Varneysaid that he fullyexpected that many of them would keep their jobs, on their merits, after theselection process had been completed.Mr Blake said that there was still a lotof fine-tuning to be done before the selection process was finalised and thathe had noidea how many of the Olefins employees would ultimately be maderedundant.

115Finally, the respondent submitted there was nothing in the Act whichdiscouraged, much less prohibited, the closure of plants,the resultingcreation of redundancies, or the filling of vacant positions by a spill andfill process. Moreover, there was nothingto suggest that using thesophisticated ranking techniques developed by Morgan & Banks to identifythe best of the company'semployees was in any way sinister, or directedagainst the applicant or the Olefins employees.

116The respondent submitted that the applicant's case was built entirely uponsurmise and conjecture. The allegations were unsupported,and dependedentirely for whatever viability they might have upon answers elicited incross-examination of the respondent's witnesses,coupled with statutoryreversal of the onus of proof. This was an unsatisfactory basis upon which tofind that the respondent hadcontravened any of the provisions of the Act.

Findings

117In my view the respondent's contentions of law and fact should, in themain, be accepted.

118I consider that the applicant's claim that the respondent has contraveneds 298K is largely misconceived. InBHP Iron Ore Pty Ltd v AustralianWorkers' Union (supra)the Full Court determined that the reach ofs 298K is limited in that it proscribes conduct which is directed to anindividual employeeor prospective employee, and not conduct directed to abroad class of employees. That decision is binding upon me. The decisionbyMr Varney and Mr Blake to conduct a spill and fill which included the Olefinsemployees was not, in my view, conduct directedto an individual employee inthe sense described by the Full Court.

119There are other legal difficulties associated with this claim. I am notpersuaded that the contravening conduct alleged iscapable of beingcharacterised as a "threat" of dismissal. All that had occurred when theapplicant instituted this proceeding wasthat the respondent had communicatedto its employees that there would be a spill and fill, and that the Olefinsemployees wouldbe included. To adopt the language of Finkelstein J inCPSUv Telstra Corporation Ltd (supra)such conduct is hardly a warning "of anintention to inflict harm". The mere indication that a selection process willbe followed,without more, seems to me to fall well short of a threat, stillless a threat which is directed to an individual employee.

120In the same way, I am not persuaded that conduct of this nature is capableof giving rise to an injury to any particular employeein his or heremployment, or that it can be said prejudicially to have altered the positionof any individual employee.

121The situation confronting members of the Maritime Union of Australia ("theMUA") inPatrick Stevedore Operations No 2 Pty Ltd v Maritime Union ofAustralia (supra) was quite different. There the conduct impugned was adecision by the employers to dismiss all members of the MUA in their employ,and to ensure that no funds were available to meet the legal obligations owedto those employees. That led to injunctive relief beinggranted unders 298K. However it is a far cry from the course which Mr Varney and MrBlake proposed to follow in the present case.

122It is one thing for an employer to decide to dismiss all its employeesforthwith because of their membership of a particularunion. That conductfalls squarely within s 298K. It is conduct which is directed toindividual employees in the sense spoken ofby the Full Court inBHP IronOre Pty Ltd v Australian Workers Union(supra), albeit allindividual employees. It is another thing altogether for an employer to decidethat an as yet uncertain number of employeeswho rank lowest after being testedfor certain skills will be made involuntarily redundant. A decision of thatcharacter seems tome not to be sufficiently proximate to any of the forms ofcontravening conduct contained within s 298K (or s 170MU). It is notrelevantly directed at individual employees.

123Moreover, it is plain that among those who will be made involuntarilyredundant at the conclusion of the spill and fill therewill be employees whoare members of unions other than the NUW. That makes it difficult to concludethat membership of the NUW isitself an operative reason for the decision.

124I am not persuaded that s 298L(1)(a) should be construed as broadly asthe applicant contends. To read into para (a) all ofthe activities whichmembers of a union might conceivably engage in would, as Kenny J observed inAustralian Workers' Union v BHP Iron Ore Pty Ltd (supra), render much ofthe remainder of s 298L(1) otiose. However, I am also not persuaded thatthe word "member" in par (a) should beconfined to what is tantamount tomere possession of a union card, as her Honour was said by the respondent tohave determined. It seems to me that at least the normal incidents of unionmembership, including what might be described as "ordinary union activity",areproperly to be taken into account when determining whether the contraveningconduct has taken place for a prohibited reason.

125I am inclined to agree with the approach taken to s 5 of theConciliation and Arbitration Act 1904 (Cth), the precursor tos 298L(1)(a), by Gray J inGibbs v Palmerston Town Council (supra).His Honour's construction of that section plainly reflected its history, goingback to the original provision in theConciliation and Arbitration Act,s 9. That section was expressed in terms similar to s 298L(1)(a),prohibiting an employer from dismissing any employee "by reasonmerely of thefact that the employee is an officer or member of an organisation or isentitled to the benefit of an industrial agreementor award". The Actcontained no provisions equivalent to ss 298L(1)(b)-(n). That suggeststhat s 9, as originally drafted, wasintended to encompass at least someof the matters subsequently introduced by ss 298L(1)(b)-(n). It may bethat these additionalprohibited reasons were added as a matter of emphasis orclarification rather than because of any perceived restriction or limitationonthe scope of the forerunner to s 298L(1)(a). However, having regard to myconclusions on other aspects of the applicant's claims,it is unnecessary forme to express any final view about this matter.

126In relation to s 298L(1)(l), I am of the view that there is noevidence whatsoever to suggest that the Olefins employees wererelevantly"dissatisfied" with existing conditions. This claim must therefore fail.

127The applicant all but expressly acknowledged that its claim unders 170MU would stand or fall upon the same basis as its claimunders 298K. The reasoning of the Full Court inBHP Iron Ore Pty Ltd vAustralian Workers' Union (supra) seems to me to be equally applicable tos 170MU. That claim must therefore also fail.

128I turn then to the applicant's claim under s 170NC. In my opinionthat claim must be rejected. There is nothing to suggestthat the decision toconduct a spill and fill which included the Olefins employees was taken withintent to coerce the NUW, or thoseemployees, into accepting EA III. Inmy view the analysis of the term "coerce" by Gyles J inFinance SectionUnion v Commonwealth Bank of Australia (supra) is compelling, and correctlystates the reach of the relevant provision. Applying his Honour's approach,there is nothing to suggestthat anything done by the respondent in relationto, or in connection with, EA III was "unlawful, illegitimate orunconscionable".

129It follows for the reasons set out above that the applicant's claims cannotbe accepted. If, however, I were to reach a differentconclusion concerningthe construction of the relevant provisions of the Act, I would still dismissthese claims upon the basis thatthey are unsupported by the evidence beforeme.

130The critical matter to be determined in this case is whether the decisiontaken by Mr Varney and Mr Blake to conduct a spilland fill including theOlefins employees was taken for a "prohibited reason" (s 298K), or whollyor in part because those employeeswere engaged in protected action(s 170MU).

131The applicant contends that I should infer that this decision was taken inorder to enable the respondent to rid itself of anumber of militant employees,all of them members of the NUW, who had long been a thorn in its side. Insupport of that submissionI was invited to infer that the decision of theseemployees to take industrial action, thus halting progress towards resolvingtheimpasse surrounding EA III, had so frustrated and angered managementthat they resolved to eliminate these employees. My attentionwas drawn tosome of the internal company documents, particularly the memoranda prepared byMr Berton and Mr Harman, in support ofthat submission. The applicantsubmitted that, at the very least, the respondent had failed to discharge theonus resting upon itto disprove the allegation that it had been actuated byimpermissible considerations.

132The respondent's submission is that I should accept the evidence of both MrVarney and Mr Blake that the spill and fill waschosen for wholly properreasons, and not in order to get back at the Olefins employees for having takenprotected action, or becausethey were members of the NUW, a union with whichmanagement have had difficulty.

133Both Mr Varney and Mr Blake were extensively cross-examined. They wereeach questioned in a forceful manner about the reasonsthat they had given forhaving decided to conduct the spill and fill. They were also questionedrepeatedly about the comments attributedto them in the internal companydocuments, and also about the comments made by others who were involved inmanagement, includingin particular Mr Berton and Mr Harman.

134In the end, after giving this matter careful consideration, I am unable toconclude that Mr Varney or Mr Blake gave perjuredevidence before me. In myview there was nothing inherently improbable about their explanations forhaving elected to have a spilland fill rather than voluntary redundancies.Their credibility was generally unshaken. Mr Varney in particular impressed meas anhonest witness. I consider that he is sincere in his belief that a spilland fill, conducted in a scrupulously fair manner, willproduce the bestoutcome for the company because it will identify the best employees. I acceptboth his evidence and that of MrBlake.

135It need hardly be said that it is not appropriate for me to express anyviews about the wisdom of the decision to conduct aspill and fill. Mr Bristowacknowledged that there were widely divergent views among the experts in thefield regarding the meritsof spill and fill processes when dealing withredundancies, as against the use of other mechanisms for dealing with thatissue. What is clear, however, as the respondent submitted, is that the Actdoes not proscribe the use of spill and fill processes. Itis only if suchprocesses are carried into effect for impermissible reasons that the Act may becontravened.

136It is understandable that the Olefins employees might view with a degree ofcynicism the protestations of management that thoseemployees are not beingtargeted by the proposed spill and fill. That cynicism is undoubtedlyheightened by the unfortunate conjunctionof events whereby the decision toconduct the spill and fill was taken within weeks of the commencement of theprotected action. However, as RD Nicholson J noted inMaritime Union ofAustralia v Geraldton Port Authority (supra)at 83-84, the fact that thereis some connection between the employer's act and the employee's unionmembership or activities doesnot mean that the employer did the act becausethe employee was a union member or because of the employee's activities.Whether anemployer was motivated by a prohibited reason or reasons whichincluded a prohibited reason is a question of fact, often involvingquestionsof judgment. The fact that a particular act precedes another does notnecessarily mean that it causes that other to occur.

137It may be that some members of management viewed the spill and fill asproviding a perfect opportunity to rid the company ofa group of employees whohad been particularly irksome. It would not be difficult to draw theconclusion that Mr Berton and Mr Harman,at least, considered that to be abeneficial by-product of the spill and fill. However, they were not therelevant decision-makers. There is no evidence that either Mr Varney or MrBlake saw the matter in these terms.

138I do not regard Mr Blake's comment in response to Mr Harman's memorandum of10 October 2000 as amounting to a wholesale adoptionof Mr Harman'ssomewhat intemperate views. In my opinion Mr Blake was doing no more thansignifying his own frustration at whathad transpired that day. Hiswillingness to "agree" with Mr Harman's sentiments should not be construed withan eye finely tunedto detail, as though Mr Blake's memorandum, hastilyproduced, constituted a carefully drawn document with legal significance.

139I have considered carefully the applicant's contention that Mr Varney's"Strategy 2" memorandum of 23 October 2000 constitutesevidence that he wasmotivated by a desire to get rid of the Olefins employees, or at least the mostmilitant of them. In my viewthat memorandum should not be so interpreted. Itis scarcely surprising that management were considering a range of options intermsof dealing with the timing of plant closures, and consequentialredundancies. Mr Varney emphasised that all positions should befilled "on thebasis of competency", and there was no suggestion in the document that the trueintent was to dismiss employees forhaving taken protected action, or for beingmembers of the NUW. The reference to plant closures was accompanied by areference toa need for "a solid business case justification" but, in context,I do not read this as code for subterfuge.

140There is in any event a difference between welcoming an outcome which isreasonably foreseeable as a by-product of a particularcourse of action, andbeing motivated, in whole or in part, by a desire to achieve that outcome. Theformer state of mind is notsufficient to establish that the conduct inquestion was carried out for a prohibited reason. The latter is sufficient forthatpurpose.

141It is scarcely surprising that once the plant closures were announced, MrVarney and Mr Blake would turn to Morgan & Banksfor assistance in dealingwith the problem of redundancies. It was only a few months earlier that thatfirm had successfully handledthe redundancies at Resins.

142I should say that Mr Jamieson impressed me as a witness, and as a man ofconsiderable integrity. He had obviously given a greatdeal of thought to thequestion of how to deal with the new redundancies. His said that he wasdetermined to ensure that the spilland fill was conducted in a fair andobjective manner. I accept his evidence in that regard. I do not considerthat the Olefinsemployees will be significantly prejudiced, in comparison withother employees of the respondent, if they undergo the screening processproposed. If anything, those who are experienced operators within the Olefinsplant should have an advantage in the ultimate selectionof those who will beretained over those who would have to undergo extensive retraining in order tobe able to operate the Olefinsplant and equipment.

143It follows from all that I have said that, to the extent that it may havebeen necessary for it to do so, the respondent hasdischarged any onus whichrests upon it to demonstrate that it was not motivated by impermissibleconsiderations. It also followsfor the reasons set out above that theapplicant has failed to make good its contention that the respondent hascontravened the provisionsof the Act.

144It may be that once the spill and fill has been completed, and theinvoluntary redundancies have been determined, it will emergethat adisproportionately high number of Olefins employees, all members of the NUW,have been dismissed. If that occurs, it willbe open to the applicant tochallenge the decision to dismiss those employees upon the basis thats 298K has been contravened. Ido not suggest that this is likely tooccur, and the evidence before me suggests that it will not.

145The respondent submitted that I should take the unusual course of orderingthe applicant to pay the costs of this proceeding. It was said that theapplication had been wholly misconceived, and that at the very least, it hadbeen brought prematurely.

146In my opinion there is no justification for departing from the general rulethat costs in proceedings of this nature are notawarded. Some of thequestions of construction raised were complex and several of the issuesdetermined were reasonably finely balanced. There is no basis for anysuggestion that the application was brought male fide. The fact that theapplicant succeeded in obtaininginterlocutory relief, though it failed toobtain final relief, suggests that several of the claims made were at leastarguable.

Associate:

Dated:6 March 2001