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Barclay v The Board of Bendigo RegionalInstitute of Technical and Further Education [2011] FCAFC 14

THE COURT ORDERS THAT:

1. Theappeal be allowed.
2. Theorder made on 25 March 2010, dismissing the application in proceeding number VID77 of 2010, be set aside.
3. Thematter be remitted to the primary judge for the making of further orders inaccordance with the reasons for judgment of the FullCourt.
4. Therebe no order as to the costs of the appeal.
   
   

Note:Settlement and entry of orders is dealt with in Order 36 oftheFederal Court Rules.

The text of entered orders can be located usingFederal Law Search on the Court’s website.

REASONS FOR JUDGMENT

GRAY AND BROMBERG JJ:

The nature and history of the proceeding

1. Thisappeal raises questions about the extent of the protection afforded to anofficer of a union by s 346 of theFair Work Act 2009 (Cth) (“theFair Work Act”). The employer in this case suspended the officer from hisemployment, required him to refrainfrom entering its premises, denied him theability to use its internet communication system and began disciplinaryproceedings againsthim. It did so after the union officer sent an email tounion members employed by that employer. The employer took the view thattheofficer should have communicated to management matters that were the subject ofthe email. It also objected to the manner inwhich the email was expressed,which cast the employer’s institution and its employees in a bad light. The fundamental questionis whether the requisite causal connection existedbetween the employer’s decision to take those actions and the fact thatthe target of them was an officer of the union who was engaged in industrialactivity, so as to bring the officer within the protectionof s 346.
2. Theappeal is from a judgment of a single judge of the Court, published asBarclay v The Board of Bendigo Regional Institute of Technical and FurtherEducation[2010] FCA 284. The proceeding at first instance was commenced on10 February 2010. The applicants, who are the appellants in this appeal, werethe officer concerned and the Australian Education Union, an organisationregistered pursuant to legislative provisions now foundin theFair Work(Registered Organisations) Act 2009 (Cth). The respondent to the primaryproceeding, and to this appeal, is the statutory authority that is responsiblefor the operationof the Bendigo Regional Institute of Technical and FurtherEducation. For convenience, the first appellant is referred to as MrBarclay,the second appellant as the AEU and the respondent as BRIT.
3. Atfirst instance, an application for interlocutory relief was resolved by theparties agreeing to remove Mr Barclay’s suspensionfrom employment and hisban on entering the BRIT premises, and to restore his internet entitlements,pending the hearing and determinationof the proceeding. The trial of theproceeding was expedited and judgment was delivered on 25 March 2010. Thelearned primary judgedismissed the application. This Court was informed bycounsel that, by agreement between the parties, pending the hearing anddeterminationof the appeal, Mr Barclay has been conducting the duties of hisemployment at BRIT and has had access to BRIT’s internet communicationssystem.
4. Perhapsbecause of the expedition with which the proceeding at first instance wasbrought on for trial, there were no pleadings orstatements of contentionsdefining the issues. The best indication of the claims made is found in thenature of the declarationssought by Mr Barclay and the AEU in their applicationat first instance. They sought four declarations that BRIT had contravenedspecified provisions of s 346 of the Fair Work Act, by taking adverse action“for the reason, or for reasons that includedthe reason”: firstthat Mr Barclay was an officer of the AEU; second that Mr Barclay encouraged orparticipated in a lawfulactivity organised or promoted by the AEU orrepresented or advanced the views, claims or interest of the AEU; third that MrBarclayexercised one or more workplace rights, being a role or responsibilityunder cl 10 of the Victorian TAFE Teaching Staff Multi-BusinessAgreement 2009or a role or responsibility under cl 9 of that agreement; and fourth that MrBarclay exercised a workplace right byparticipating in a process or proceedingunder a workplace instrument, being a dispute settlement procedure under cl 10of that agreementor a consultation under cl 9 of that agreement. There was afifth declaration sought that is of no concern for the purposes of theappeal.
5. Inthe orders sought in the application, “adverse action” was definedto mean one or more of: suspending Mr Barclayfrom employment; directing MrBarclay not to attend any of the BRIT campuses and suspending his electronicaccess account; requiringMr Barclay to show cause why he should not be thesubject of disciplinary action for serious misconduct; and threatening to takedisciplinary action against Mr Barclay. The orders sought included theimposition of a penalty under s 546(1) of the Fair Work Actin respect of eachof the alleged contraventions; an order pursuant to s 546(3) of the Fair WorkAct that BRIT pay the penalty tothe AEU or to Mr Barclay; an order pursuant tos 545(2)(b) of the Fair Work Act requiring BRIT to pay compensation for lossthatMr Barclay and the AEU had suffered as a result of the contraventions; anorder pursuant to s 547 of the Fair Work Act for the paymentof interest; and apermanent injunction to give effect to the Court’s orders and findings. With the exception of the fifthdeclaration, the same orders are sought onappeal.

The legislation

6. Theprovisions of the Fair Work Act relevant to this appeal are found in Pt 3-1. Section 336 provides:

The objects of this Part are as follows:

(a)to protect workplace rights;

(b)to protect freedom of association by ensuring that personsare:

(i)free to become, or not become, members of industrial associations;and

(ii)free to be represented, or not represented, by industrial associations;and

(iii)free to participate, or not participate, in lawful industrialactivities;

(c)to provide protection from workplacediscrimination;

(d)to provide effective relief for persons who have been discriminated against,victimised or otherwise adversely affected as aresult of contraventions of thisPart.

7. Division3 of Pt 3-1 relates to workplace rights and their protection. It contains thefollowing relevant provisions:

340(1)A person must not take adverse action against anotherperson:

(a)because the other person:

(i)has a workplace right;or

(ii)has, or has not, exercised a workplaceright...

341(1)A person has aworkplace right if theperson:

(a)is entitled to the benefit of, or has a role or responsibility under, aworkplace law, workplace instrument or order made by an industrial body;or

(b)is able to initiate, or participate in, a process or proceedings under aworkplace law or workplaceinstrument...

(2)Each of the following is aprocess or proceedings under a workplacelaw or workplace instrument:

...



(j)dispute settlement for which provision is made by, or under, a workplacelaw or workplace instrument

8. Thedictionary in s 12 of the Fair Work Act contains definitions of“workplace instrument” and “workplacelaw”. The Fair Work Act itself is a workplace law, and aninstrument made under, or recognised by, a workplace law, and concerningtherelationships between employers and employees, is a workplace instrument.
9. Section342(1) contains a table setting out circumstances in which a person takesadverse action against another person. Item 1of that table provides that anemployer takes adverse action against an employee if theemployer:

(a)dismisses the employee; or

(b)injures the employee in his or her employment;or

(c)alters the position of the employee to the employee’s prejudice;or

(d)discriminates between the employee and other employees of theemployer.

Section 342(2)(a) provides that adverse action includes threatening to takeaction covered by the table in s 342(1).

10. Division4 of Pt 3-1 contains provisions dealing with the protection of freedom ofassociation and involvement in industrial activities. So far as relevant tothis case, s 346 provides:

A person must not take adverse action against another person because the otherperson:

(a)is or is not, or was or was not, an officer or member of an industrialassociation; or

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

11. Thedefinition of “adverse action” in the dictionary in s12 of the Fair Work Act refers to s 342, thereby making it clear that thedefinition in s 342 is applicableto the term “adverse action” whenit is used in s 346. The meaning of “industrial activity” isexplainedin s 347. That section provides as follows:
    
    

A personengages in industrial activity if the person:

(a)becomes or does not become, or remains or ceases to be, an officer or memberof an industrial association; or

(b)does, or does not:

(i)become involved in establishing an industrial association; or

(ii)organise or promote a lawful activity for, or on behalf of, an industrialassociation; or

(iii)encourage, or participate in, a lawful activity organised or promoted byan industrial association; or

(iv)comply with a lawful request made by, or requirement of, an industrialassociation; or

(v)represent or advance the views, claims or interests of an industrialassociation; or

(vi)pay a fee (however described) to an industrial association, or to someonein lieu of an industrial association; or

(vii)seek to be represented by an industrial association; or

(c)organises or promotes an unlawful activity for, or on behalf of, anindustrial association; or

(d)encourages, or participates in, an unlawful activity organised or promotedby an industrial association; or

(e)complies with an unlawful request made by, or requirement of, an industrialassociation; or

(f)takes part in industrial action; or

(g)makes a payment:

(i)that, because of Division 9 of Part 3-3 (which deals with payments relatingto periods of industrial action), an employer mustnot pay; or

(ii)to which an employee is not entitled because of that Division.

Two more definitions in the dictionary in s 12 of the Fair Work Act arerelevant to s 347(a):

officer, of an industrial association,means:

(a)an official of the association; or

(b)a delegate or other representative of theassociation.

official, of an industrial association, means a person who holdsan office in, or is an employee of, theassociation.

There is also a lengthy definition of “office”, towhich it is unnecessary to go for present purposes.

12. Sections360 and 361 of the Fair Work Act are found in Div 7 of Pt 3-1. So far asrelevant to this proceeding, they provide as follows:
    360. Forthe purposes of this Part, a person takes action for a particular reason if thereasons for the action include that reason.
         
         

361(1)If:

(a)in an application in relation to a contravention of this Part, it is allegedthat a person took, or is taking, action for a particularreason or with aparticular intent; and

(b)taking that action for that reason or with that intent would constitute acontravention of this Part;

it is presumed, in proceedings arising from the application, that the actionwas, or is being, taken for that reason or with thatintent, unless the personproves otherwise.

The approach to construing the legislative provisions

13. Theobjects of Pt 3-1 reveal that Parliament sought to protect the rights conferredby the Part and to provide for persons on whomthose rights are conferredeffective relief from being discriminated against, victimised or otherwiseadversely affected by reasonof the holding or exercising of those rights. Therights the Part deals with are:
    • The workplacerights conferred by Div 3;
    • The rights ofassociation and participation in the industrial activities conferred by Div 4;and
    • Anti-discriminationrights and other protections conferred by Divs 5 and 6.
14. Theobjects of Pt 3-1 refer specifically to the aim of protecting freedom ofassociation. When regard is had to the way in whichthe content of freedom ofassociation is identified by those objects, it is clear that Parliament intendedthat a broad approachbe taken to the concept of freedom of association. Thefreedom is not simply a freedom to join an association without adverseconsequences,but is a freedom to be represented by the association and toparticipate in its activities. As the principal object of the FairWork Actitself emphasises, the recognition of the right to freedom of association andthe right to be represented is designed toenable fairness and representation atwork: see s 3(e) and the Explanatory Memorandum to the Bill which introduced theFair WorkAct at para 1333.
15. TheFair Work Act’s principal object also emphasises Parliament’s intentto take into account Australia’s internationallabour obligations: s 3(a).In that regard, it is necessary to acknowledge that the right to freedom ofassociation is recognisedin international law. Australia has ratified each ofthe following international instruments which recognise and seek to protecttheright of freedom of association:
    • theInternational Covenant on Economic, Social and Cultural Rights, Openedfor signature 19 December1966, 993 UNTS 3. (entered into force 10 March 1976)(“the ICESCR”) (see especially art 8);
    • theInternational Covenant on Civil and Political Rights, Opened forsignature 19 December1966, 999 UNTS 171. (entered into force 13 November 1980)(“the ICCPR”) (see especially art 22); and
    • theInternational Labour Organisation Convention (No 87) concerning Freedom ofAssociation and Protection of the Rights to Organise, Opened for signature 9July1948, 68 UNTS 17. (entered into force 28 February 1973).
16. Article20 of theUniversal Declaration of Human Rights G/A Res. 217A (III) UN.Doc. A/810 (10 December 1948) (“the UDHR”) also provides for theright to freedom of association. The UDHR, the ICESCR and the ICCPR togetherconstitute the International Bill of Human Rights adopted by the GeneralAssembly ofthe United Nations.
17. Especiallywhere important human rights are concerned, protective and remedial legislationshould not be construed narrowly “lestcourts become the undoers anddestroyers of the benefits and remedies provided by such legislation...It islegitimate in giving effectto such legislation, to keep in mind its broadpurposes and, to the full extent that the text permits, to ensure that the Actachievesits objectives and is not held to have misfired”: I W v Cityof Perth[1997] HCA 30(1997) 191 CLR 1 at 58 per Kirby J.
18. Theobjects and purposes of Part 3-1 are important interpretive aids in resolvingissues of construction, including those which arisein this appeal by referenceto s 346 of the Fair Work Act. That provision was relied upon by the appellantsto found the claim ofvictimisation of Mr Barclay by reason of the exercise byhim of his activities as an officer of the AEU. Protection from that kindofvictimisation has long been a central feature of the Fair Work Act and itspredecessors. Its source may be traced back to s 9(1)of theConciliationand Arbitration Act1904 (Cth) and to a time which predates theinternational recognition of the right to freedom of association byinternational law.
19. AsNorth J explained inAustralasian Meat Industry Employees’ Union vBelandra Pty Ltd[2003] FCA 910(2003) 126 IR 165 at[116]-[133], andas the High Court recognised inGeneral Motors Holden Pty Ltd v Bowling(1976) 12 ALR 605, the purpose of the protection of union officials fromvictimisation by reason of their union status or activities was based in thecentral role given to unions by Australia’s industrial relations systemand was “designed, among other things, to preserveorganizations, so thatthe method selected by Parliament for settling disputes shall not bethwarted”: per Isaacs J inPearce v W D Peacock & Co Ltd[1917]HCA 28(1917) 23 CLR 199 at 205, quoted by Mason J inBowlingat616; see also Barwick CJ inBowling at 609.
20. Thisfacilitative object was touched on by Smithers and Evatt JJ inBowling vGeneral Motors-Holden Pty Ltd(1975) 8 ALR 197 at 210, where their Honourssaid:

It is basic...that active representatives of employees may well incur thedispleasure of management with consequent risks and worriesto thoserepresentatives. As the informant in this case said “you are brought intothe firing line”. Clearly the purposesof the Act will be frustratedunless employees are able to act as union representatives on the shop floor andelsewhere and negotiatewith the representatives of employers without fear thaton that account they will suffer in theiremployment.

21. Wilcoxand Cooper JJ described the protective object of the predecessor of s 346 as to“ensure the threat of dismissal or discriminatorytreatment cannot be usedby an employer to destroy or frustrate an employee’s right to join anindustrial association and totake an active role in that association to promotethe industrial interests of both the employee and association”:DavidsDistribution Pty Ltd v National Union of Workers[1999] FCA 1108(1999) 91 FCR 463 at[106].
22. Theobjects expressed in s 336(b) of the Fair Work Act, together with thelegislative history, make it clear that the provisionsare intended to be bothfacilitative and protective. Employees are to be free to assume membership andoffice in industrial associationsand to be represented by industrialassociations, and to engage in lawful industrial activities, without the riskthat their employerswill disadvantage them as a consequence. Section 346(a) isfounded on the assumption that representation by industrial associationswillinvolve employees exercising functions as officers of those associations. Employees are not to be discouraged from acceptingthe conferral of suchfunctions, or from performing the functions, by the circumstance that aconsequence of their acceptance orperformance will be that their employers takeaction to disadvantage them.
23. Part3-1 of the Fair Work Act includes provisions which are largely based uponprovisions formerly found in Pt 16 – “Freedomof Association”of theWorkplace Relations Act 1996 (Cth) (“theWorkplace RelationsAct”). UnderPt 16, prohibited conduct by employers was dealt withseparately from prohibited conduct of employees and separately again fromprohibitedconduct of industrial associations. By contrast,s 346 prohibitsconduct of “a person”. The Explanatory Memorandum explains that theconsolidated protections inPt 3-1 are intended to rationalise, but notdiminish, existing protection. In that respect, the draftsperson hasconsolidated into onegeneric provision many of the kinds of conduct formerlyprohibited by disparate provisions. In theWorkplace Relations Act, differentlinguistic formulae were utilised when the conduct was dealt with underdifferent person-specific provisions. In relationto the conduct of employers,the prohibition was cast in terms that an employer must not, for a prohibitedreason, engage in certainconduct. The prohibited reasons specified werereferrable to the attributes or activities of employees. In relation to conductof an employee or industrial association, the formula used was that such aperson must not engage in such conduct against anotherperson“because” of that other person’s attributes or activities (asspecified).
24. Inconsolidating the provisions and adopting a generic approach fors 346, thedraftsperson had to choose between the two competing prior approaches. The moremodern style of using the conjunction “because”instead of“for the reason that” was adopted. The choice was stylistic, notsubstantive. The primary judge was correctto conclude that the word“because” inss 340(1)(a) and346 was intended to have the samemeaning as “by reason of the circumstance that”. The MacquarieDictionary gives as theprimary meaning for the word “because”, whenused as a conjunction, “for the reason that” and, when usedas anadverb, “by reason”. The expressions “because” and“by reason of”, in the context of therelevant provisions of theFair Work Act, are interchangeable. If that were not so, as the primary judgepointed out, the assistanceprovided to applicants by ss 360 and 361 would notbe available.
25. Tothe extent that the AEU and Mr Barclay contended before the primary judge, andon the appeal, that the introduction of the word“because” had theeffect of making irrelevant the state of mind of the person taking the adverseaction, that contentionmust be rejected.
26. AsGummow, Hayne and Heydon JJ said inPurvis v State of New South Wales(Department of Education and Training)[2003] HCA 62(2003) 217 CLR 92 at[236] of the use of “because” in a similar way to its use in s346:

For present purposes, it is enough to say that we doubt that distinctionsbetween motive, purpose or effect will greatly assist theresolution of anyproblem about whether treatment occurred or was proposed "because of"disability. Rather, the central questionwill always be - why was the aggrievedperson treated as he or she was? If the aggrieved person was treated lessfavourably was it"because of", "by reason of", that person's disability?Motive, purpose, effect may all bear on that question. But it would be amistaketo treat those words as substitutes for the statutory expression "because of".

27. Thecentral question under s 346 is why was the aggrieved person treated as he orshe was? If the aggrieved person was subjectedto adverse action, was it“because” the aggrieved person did or did not have the attributes,or had or had not engagedor proposed to engage in the industrial activities,specified by s 346 in conjunction with s 347?
28. Thedetermination of those questions involves characterisation of the reason orreasons of the person who took the adverse action. The state of mind orsubjective intention of that person will be centrally relevant, but it is notdecisive. What is required isa determination of what Mason J inBowling(at 617) called the “real reason” for the conduct. The realreason for a person’s conduct is not necessarily thereason that theperson asserts, even where the person genuinely believes he or she was motivatedby that reason. The search is forwhat actuated the conduct of the person, notfor what the person thinks he or she was actuated by. In that regard, the realreasonmay be conscious or unconscious, and where unconscious or not appreciatedor understood, adverse action will not be excused simplybecause its perpetratorheld a benevolent intent. It is not open to the decision-maker to choose toignore the objective connectionbetween the decision he or she is making and theattribute or activity in question.
29. Somuch is evident from the use of the word “because”. It is alsoconsonant with the objective and protective purposesof s 346. Further, it isconsistent with the approach to construction taken in relation to provisions inanti-discrimination legislationwhere, in a similar context, the word“because” is utilised: see in particularPurvis at[142]-[166] per McHugh and Kirby JJ and at [234]-[236] per Gummow, Hayne andHeydon JJ; andToben v Jones[2003] FCAFC 137(2003) 129 FCR 515 at[31]per Carr J, [61]-[63] per Kiefel J and [151] per Allsop J.
30. Section360 continues the long-standing position that, where adverse action is takenagainst a protected person, culpability willbe established if the reasons forthat conduct include a reason for conduct that is within the ambit of s 346. The reason must bean operative or immediate reason and need not be the sole ordominant reason (see the Explanatory Memorandum at para 1458). Butthe drawingof distinctions between proximate or immediate reasons for conduct (GreaterDandenong City Council v Australian Municipal, Administrative, Clerical andServices Union[2001] FCA 349(2001) 112 FCR 232 at[216]), or between thecause of conduct and the reason for conduct (Greater Dandenong at [164]),is not helpful. Those distinctions fail to give sufficient attention to whetheror not the reason was operative, and theyalso draw distinctions between areason and a factor in a reason. As Gray J (with whom Woodward and Jenkinson JJagreed) said inLewis Construction Co Pty Ltd v Martin(1986) 17 IR 122at 125:

The Act and the authorities do not distinguish between a “reason”and a “factor”; indeed, inBowling, these terms are usedinterchangeably.

31. Further,that no distinction is to be drawn between the cause of conduct and the reasonfor conduct is supported by our earlier conclusionat [24] as to the meaning of“because” and the interchangeable use by the relevant provisions (ss340, 346 and 360, 361)of cause and reason.
32. Theonus cast by s 361 on the person taking the adverse action means that, tosucceed, that person has to establish that he or shewas not actuated by theattributes or industrial activity which s 346 seeks to protect. As Mason J saidinBowlingat 617, that objective will not be achieved unless theevidence establishes that the real reason for the adverse action lies outsidethe ambit of the provision – in this case s 346. The real reason orreasons for the taking of the adverse action must be shownto be“dissociated from the circumstances” that the aggrieved person hasor had the s 346 attribute or has or had engagedin or proposes to engage in thes 346 industrial activity.
33. Itis important, however, to appreciate that not all of the circumstances specifiedby s 346 (in conjunction with s 347) are circumstancesspecified for the purposeof identifying whether the causal link of an operative reason exists. Objectivefacts, dependent on thedetermination of questions of mixed fact and law, havenow been included in s 346 to a much greater extent than they were in thesection’s predecessors. Section 347 is replete with examples. Forinstance “lawful activity” in (b)(ii) and (iii)and “lawfulrequest” in (b)(iv). Whether a person is or is not a member or officer ofan industrial association is alsoa fact to be ascertained objectively byreference to a legal standard, usually the rules of the association.
34. Itis for an applicant to prove the existence of objective facts of the kind wehave identified:seeConstruction, Forestry, Mining and Energy Unionv BHP Coal Pty Ltd[2010] FCA 590 at[44] and the cases there cited. Thespecification in ss 346 and 347 of facts of this kind is designed to delineatethe area of protectionfrom adverse action afforded by s 346. For instance, anemployee is not protected by s 346 (in conjunction with s 347(b)(ii)) wheretheactivity promoted for or on behalf of an industrial association is not a lawfulactivity. However, it is not necessary thatthe subjective belief held by theperson accused of the adverse action about such a fact should correlate with thelegal conclusionas to the existence or non-existence of that fact. Thus acontravention of s 346 (in conjunction with s 347(b)(ii)) may occur wheretheactivity promoted by the employee was lawful, but where the employer taking theadverse action held a subjective belief thatit was not. In such a case, afailure by the employer to establish that the real reason for the taking of theadverse action wasdissociated from the circumstance that the employee waspromoting a lawful activity for or on behalf of an industrial associationwillresult in a finding of contravention, irrespective of the employer’ssubjective belief that the activity was unlawful. The “connection”between the adverse action and the industrial activity will be sufficiently madeout in those circumstances: see the Explanatory Memorandum at para 1400.
35. Thecentral question inPurviswas whether a disabled child whose disabilitycaused him to behave violently at school had been discriminated against, incontraventionofs 5(1) of theDisability Discrimination Act 1992 (Cth),by being excluded from the school. The High Court held that the relevantcomparison, for the purposes of determining whethersuch a contravention hadoccurred, was between the child concerned and another child without thedisability, but who had behavedin a similarly violent way. See Gleeson CJ at[12], Gummow, Hayne and Heydon JJ at [221]-[225] and Callinan J at [273]. Withtheexception of para (d) of item 1 of the table in s 342, which extends theconcept of adverse action by an employer against an employeeto discriminationbetween that employee and other employees of the employer, the provisions ofDivs 3 and 4 of Pt 3-1 of the FairWork Act do not require that any comparisonbe undertaken between the treatment of the employee in question and any otheremployeeor employees, actual or notional, who acted in the same way as theemployee in question. The provisions focus on the protectionof the person whohas a particular attribute, or engages in particular activity, without regard tohow others might be treated ifthey did not have the benefit of the protectionafforded by the provisions. It is not to the point to say that any otheremployeewho acted in the same way would have been subject to the samediscipline.
36. In applying the provisions of ss 341 and 346 of the Fair Work Act, except whenthe adverse action alleged is confined to discriminationwhen compared withother employees of the employer, a comparative test of the kind dealt with bythe High Court inPurvis is not appropriate.
37. Lastly,there was some contest before the primary judge as to the scope of“officer” in s 346(a). Different views havebeen expressed as tothe scope of the words “member” and “officer” in thepredecessor provision to s 346(a)of the Fair Work Act. The prohibited reasonof a person being a “member” of an industrial association has beenconstruedas confined to the status of membership:Australian Workers Union vBHP Iron-Ore Pty Ltd[2001] FCA 3(2000) 106 FCR 482 at[66];Harrison v P&T Tube Mills Pty Ltd[2009] FCA 220(2009) 181 IR 162 at[298]. On the other hand, “member” has been construed to encompassactivities of the member carried out as an incident ofthat person’smembership of the union:Belandraat [216]. Perhaps a third view,largely consistent with the last, is that at least the normal incidents of unionmembership, includingwhat might be described as ordinary union activity, are tobe properly taken into account in determining whether the contraveningconducthas taken place for a prohibited reason:National Union of Workers v QenosPty Ltd[2001] FCA 178(2001) 108 FCR 90 at[124].
38. Inrelation to the word “officer”, the view expressed inHarrison by Dowsett J is that the scope of the predecessor provision to s346(a) was essentially confined to the status of the person as anofficer. Anappeal against his Honour’s judgment was upheld, but the Full Court foundit unnecessary to consider the correctnessof that view: Harrison v P&TTube Mills Pty Ltd[2009] FCAFC 102(2009) 188 IR 270 at[34]. A contraryview was taken by Gray J inAustralasian Meat Industry Employees’ Unionv G & K O’Connor Pty Ltd[2000] FCA 627(2000) 100 IR 383 at[37]:

It is clear that the prohibited reason that a person is a delegate of anindustrial association, specified in s 298L(1)(a), is notconfined to the merestatus of the person concerned as a delegate. A dismissal of a delegate may befor that prohibited reason ifthe employer was motivated by dislike of themanner in which the delegate has performed duties as delegate, or of activitiescarriedout by that delegate which have added significance because they arecarried out by a delegate. The issue is discussed at lengthby Merkel J inAustralian Municipal, Administrative, Clerical & Services Union v AnsettAustralia Ltd[2000] FCA 441 at pars 63-78, where his Honour followed thedecision of the High Court of Australia inGeneral Motors Holden Pty Ltd vBowling(1976) 51 ALJR 235. Conduct of an employer may also be for theprohibited reason that the employee concerned was a delegate if, for instance, areasonfor the dismissal of a delegate was that the employer did not want thatparticular person to be a delegate. The employer might beprepared to live withdelegates generally, or with another delegate, but might be concerned that aparticular person has been chosento represent the interests of itsemployees.

39. Thedebate as to the width of the subsection dealing with the protection of theright to be a member or officer was largely a debateas to the extent to whichthe maximexpressio unius est exclusio alterius (an express reference toone matter indicates that the other matters are excluded) applied. North J inBelandraat [134]-[150] dealt with that issue. For the reasons hisHonour gave, we agree with his conclusion that the maxim was inapplicable. Byreason also of the history and international law considerations referred to byNorth J, we agree with his Honour’s conclusionthat the protectionprovided by the predecessor to
    
    s 346(a) by reference to the word“member” includes protection in relation to activities carried outas an incident ofmembership. The same conclusion applied to the concept of“officer” as utilised in the predecessor provision.
40. Wedo not consider the references to “officer” or “member”in s 346(a) to be narrower in their scope thanwas previously the case. Thereasons for the inapplicability of theexpressio unius est exclusioalterius maxim are even stronger in relation to s 346 than they werepreviously in relation to the predecessors to that provision. The degreeofoverlap between s 346(a) and s 346(b) and within s 346(b) is manifest and muchgreater than was the limited overlap apparent inthe predecessor provisions. Inthose circumstances, more so than previously, the application of the maxim islikely to bring abouta result that the legislature was unlikely to haveintended:Ainsworth v Criminal Justice Commission[1992] HCA 10(1992)175 CLR 564 at 575. The Explanatory Memorandum at para 1400 stated in relationto Div 4 of the Fair Work Act (which includes ss 346 and 347)that the“protections in the Division revolve around the right to engage or notengage in certain industrial activities –namely, being a member orofficer of an industrial association or engaging in activities of industrialassociations.” Additionally,the terms of s 347(a) make it clear that theholding of membership or office is regarded by the Act as not merely a matter ofstatus,but as an engagement in industrial activity.

The facts

41. Thefacts of the case were largely uncontroversial at the trial. The controversyconcerns the conclusions to be drawn from thosefacts.
42. TheAEU has a sub-branch, consisting of its members employed by BRIT. Mr Barclay isemployed as a senior teacher by BRIT and ispresident of the sub-branch. On 29January 2010, Mr Barclay sent an email to all members of the AEU employed byBRIT, in the followingterms:

From: Greg Barclay [mailto:gbarclay@britafe.vic.edu.au]

Sent: Friday, 29 January 2010 10:00 AM

Subject: AEU – A note of caution

Hi all,

The flurry of activity across the Institute to prepare for the upcomingreaccreditation audit is getting to the pointy end with thematerial having beensent off for the auditors to look through prior to the visit inFebruary.

It has been reported by several members that they have witnessed or been askedto be part of producing false and fraudulent documentsfor theaudit.

It is stating the obvious but,DO NOT AGREE TO BE PART OF ANY ATTEMPT TOCREATE FALSE/FRADULENT [sic]DOCUMENTATION OR PARTICIPATE IN THESETYPES OF ACTIVITIES.  If you have felt pressured to participate in thiskind of activity please (as have several members to date) contact the AEUandseek their support and advice.

Greg Barclay

President

BRIT AEU Sub-Branch

43. Atthe time, BRIT was preparing for an audit by the Victorian Registration andQualifications Authority. The auditors were due toattend at BRIT on 16-17February 2010. The documents to which the email referred were intended to beprovided to the auditors. An unfavourable outcome of the audit with respect tocertain courses and qualifications has the potential to affect the entitlementof BRIT to offer those courses and to confer those qualifications, andconsequently to receive funding for that purpose.
44. On29 January 2010, copies of the email were seen by senior managers of BRIT. Oneof them, Jamie Eckett, forwarded a copy of theemail to BRIT’s ChiefExecutive Officer, Dr Louise Harvey, late on 1 February 2010. In addition, MrEckett forwarded copiesof emailed comments of other managers, to the effectthat the email had the potential to cause serious damage to the reputation ofBRIT. Mr Eckett also told Dr Harvey that he had discussed the email with MrBarclay earlier on 1 February 2010, and that Mr Barclayhad declined to providehim with the names of the members referred to in the email as having witnessedor been asked to be part ofproducing false and fraudulent documents. Therefusal was on the basis that those people were members of the union and did notwishthe fact of their membership to become known to management of BRIT.
45. Onthe following day, 2 February 2010, Dr Harvey invited Mr Barclay to meet withher. Mr Barclay was accompanied by an AEU representative. At the meeting, DrHarvey handed Mr Barclay a letter in the followingterms:

Dear Greg

Re: Possible Serious Misconduct

I refer to an email sent by you to many Bendigo TAFE staff on Friday,29th January 2010 in which you alleged that seriousinappropriate behaviour has occurred in that several staff members have been“askedto be part of producing false and fraudulent documents for theaudit” for Bendigo TAFE’sre-accreditation.

Your allegation raises the possibility that improper conduct has occurred whichwill require a full and thorough independent investigation. I am in the processof arranging for this to occur. You will be required to be interviewed by theinvestigator appointed. I willsupply more information to you about that in thenear future.

However, the purpose of this letter is to ask that you show cause why you shouldnot be subject to disciplinary action for seriousmisconduct in your role asTeam Leader – Teaching Excellence. It appears to me that suchdisciplinary action may be warrantedbecause of:

• the manner inwhich you have raised the allegation, via a broadly distributed email;
• your actions innot reporting the instances of alleged improper conduct directly to your manageror me to enable us to take appropriateaction; and
• your refusal orfailure to provide particulars of the allegations when asked to do so by yourmanager.
  
  

In my preliminary view, this conduct is inconsistent with the behaviour expectedof a public sector employee, a BRIT employee anda Team Leader in the Teaching,Learning & Quality Unit of this organisation. Additionally, I am of theview that because youraccusation is vague and general, it doesn’tdemonstrate proper respect for your fellow employees and places the individualsconcerned in the re-accreditation process under the shadow of suspicion with noright of reply or defence.

I believe you have breached Clause 3.6, 3.9 and 6.1 of the Code of Conduct forVictorian Public Sector Employees. Clause 3.6 refersto public sector employeesreporting to an appropriate authority any unethical behaviour. You did notreport to your supervisoryour knowledge of possible unethical behaviour and asyet have not provided proof of your allegation to your manager when asked todoso. Clause 3.9 refers to public sector employees behaving in a manner that doesnot bring themselves or the public sector intodisrepute. The manner in whichyou have disseminated your allegations (whether or not they are well-founded)clearly threatens thereputation and probity of Bendigo TAFE. Finally, Clause6.1 refers to public sector employees being fair, objective and courteousintheir dealings with other public sector employees. By making generalisedallegations, that could apply to anyone in the Instituteinvolved in there-accreditation process, you have cast a slur on your colleagues against whichthey cannot defend themselves.

In line with Clause 3 of the BRIT Staff Discipline procedure, it is my decisionto suspend you from duty on full pay until Friday,19thFebruary 2010. This period of time will provide you with the opportunity toformally respond to the charge of serious misconductas outlined above. Youshould provide your response to the charges by no later than 12 noon on 17February 2010. Until 19 Februaryyou are not to attend any of the Bendigo TAFEcampuses and your electronic access account will besuspended.

Yours sincerely

Dr Louise Harvey

Chief Executive Officer

46. Thesuspension of Mr Barclay on full pay, the denial of his internet access throughthe BRIT computer system, and the ban on himattending the BRIT premises lasteduntil 12 February 2010. On that occasion, the parties agreed that Mr Barclayshould return towork on a normal basis. He remains subject to the disciplinaryproceedings to which the letter refers, which have been held up,pending theoutcome of this appeal.
47. Atthe time, the AEU and BRIT were parties to and bound by the Victorian TAFETeaching Staff Multi-Business Agreement 2009 (“theTAFE Agreement”).Clauses 9 and 10 of the TAFE Agreement provided, so far as relevant to thisproceeding:

9.CONSULTATION IN INSTITUTEDECISION-MAKING

9.1The parties recognize that there will be significant consultation during theperiod of the Agreement on matters involving implementationof this Agreement,operational and cultural change and matters affecting Employees generally or ina particular case. To thisend, the parties are committed to a cooperativeapproach to such matters involving joint participation andconsultation.

9.2 An Institute Consultative Committee (ICC) will be established within one(1) month of the commencement of this Agreement forthe purpose ofimplementing and monitoring this Agreement. The ICC will also be the forumthrough which the Institute, its employeesand the Union consult generally onmatters affecting Employees. The Committee shall meet during ordinary hours. Time Allocationsof an agreed amount additional to those provided elsewhere inthis Agreement will be made from scheduled duties for employee representativeson this ICC.

9.3The ICC will comprise two Institute representatives, and two electedemployee representatives who may be from the Union. Itis recognized thatfrom time to time additional representation on behalf of the Institute or theemployees may be involved.

9.4The ICC will meet regularly, and as required, to discuss issues outlined insub-clause 9.1 and on any other matter on whichconsultation may be required. The ICC will provide a report and /or recommendation, as appropriate, to theDirector on the matter/sunder discussion. The Institute will provide the timeand resources necessary for the ICC to perform itsrole.

9.5Where the Institute proposes changes that are likely to have a significanteffect on Employees covered by this Agreement, theInstitute will consult withthose Employees, their elected representatives and the Union through the ICCprior to the proposedchanges being implemented.

10.DISPUTE RESOLUTION PROCEDURE

10.1A dispute or grievance arises where an Employee on the one hand or theEmployer on the other are aggrieved by a decision oraction, or a failure tomake a decision or act in relation to matters that arise out of, or arereasonably incidental to, matterscovered by thisAgreement.

10.2The Employee has the right to seek advice from and be represented by theindustrial organisation entitled to represent hisor her interests at allstages of this procedure.

The remaining subclauses of cl 10 set out the procedure by which disputes orgrievances are to be dealt with. It is unnecessary forpresent purposes to setout any of those procedures in detail.

48. Theprimary judge described it as common ground that, in his capacity as sub-branchPresident of the AEU, Mr Barclay had the right(and probably the duty) todiscuss workplace issues of concern to members with those members and to advisethem about how the issuesshould be resolved. His Honour also found that MrBarclay was bound to respect confidences.

The contraventions alleged

49. MrBarclay and the AEU alleged that BRIT had taken adverse action against MrBarclay in four ways: by suspending him from duty;by suspending his access tothe internet; by requiring him not to attend the premises of BRIT; and byrequiring him to show causewhy disciplinary action should not be taken againsthim. They alleged that this adverse action was taken for six reasons: MrBarclaywas an officer of the AEU (a contravention of s 346(a) of the Fair WorkAct); he engaged in industrial activity by representing oradvancing the views,claims or interests of the AEU (a contravention of s 346(b) in conjunction withs 347(b)(v)); he engaged inindustrial activity by encouraging or participatingin a lawful activity organised or promoted by the AEU (a contravention of s346(b)in conjunction with s 347(b)(iii)); he exercised a workplace right, inthe form of a role or responsibility conferred by cl 10, orcl 9, of the TAFEAgreement (a contravention of s 340(1)(a)(ii) in conjunction with s 341(1)(a));and he exercised a workplace right,being the ability to participate in aprocess or proceeding under a workplace instrument, being the dispute settlementprocedureunder cl 10 of the TAFE Agreement (a contravention of s 340(1)(a)(ii),in conjunction with s 341(1)(b) and s 341(2)(j)).

The reasoning of the primary judge

50. Theprimary judge did not make an express finding that Mr Barclay sent his email of29 January 2010 in his capacity as an officerof the AEU. At [1] of hisHonour’s reasons for judgment, when he was summarising the nature of theproceeding, his Honoursaid that “In his union capacity” Mr Barclaysent the email to members of the AEU employed by BRIT. In conjunction withhisHonour’s findings about the uncontroversial evidence as to the nature ofMr Barclay’s role as sub-branch President(see [48] above), this suggeststhat his Honour regarded the email, and the sending of it to members of the AEU,as falling withinthat role.
51. HisHonour also did not make any express finding as to whether Mr Barclay wasengaged in industrial activity, either in sending theemail, or in failing orrefusing to reveal to the management of BRIT the allegations that had been madeto him or the identitiesof the persons who had made them. There is no findingas to whether, in sending the email, Mr Barclay was organising or promotingalawful activity for, or on behalf of, an industrial association; encouraging orparticipating in a lawful activity organised orpromoted by an industrialassociation; or representing or advancing the views, claims or interests of anindustrial association,within the meaning of s 347(b)(ii), (iii) and (v)respectively of the Fair Work Act.
52. Inthe course of summarising the case put on behalf of Mr Barclay and the AEU, at[43], the primary judge discussed the issue whetherthe words “witnessedor been asked to be part of producing false and fraudulent documents for theaudit” in Mr Barclay’semail of 29 January 2010 were an accuratereflection of the information he had received from members. His Honour referredto cross-examinationof Mr Barclay, in which it emerged that some members hadtold him they had become aware that incorrect information had been includedindocuments being prepared for audit purposes, but none had told him that anyonehad deliberately inserted details known to be incorrect,in an attempt tomislead the auditors. His Honour said that Mr Barclay’s formulation didnot appear to be an accurate characterisationof the information he hadreceived, but described the issue of its accuracy as not one that fell to bedetermined in the proceeding. His Honour did observe that Mr Barclay had made“a most serious allegation that members had reported to him thatmis-conduct[sic], which could very well amount to a criminal offence,had occurred.”
53. At[44]-[45], still under the heading that indicated that he was summarising thecase put on behalf of Mr Barclay and the AEU, hisHonour made a finding that DrHarvey was entitled (if not bound) to investigate the allegations made in theemail, and was not precludedfrom doing so by claims of confidentiality in afooter to the email.
54. HisHonour then embarked on an account of the case put by BRIT. At [47]-[48], hisHonour engaged in a discussion as to whether requiringMr Barclay to show causewhy disciplinary action should not be taken against him constituted adverseaction. His Honour made noconcluded finding on that question. At [49]-[54],his Honour summarised the evidence of Dr Harvey. He quoted a passage from DrHarvey’s affidavit in which she set out her concerns. These were thatallegations of fraudulent conduct were made withoutany complaint or report ofconduct of that kind being raised with Dr Harvey or any other member of seniormanagement; the languageof the email was bound to cause distress to members ofstaff, bring the reputation of BRIT into question and undermine staff confidencein the audit process; and Mr Barclay was himself employed in the unitresponsible for overseeing the preparation of the audit process. His Honoursaid that Dr Harvey had said that she called on Mr Barclay to show cause toprovide him with an opportunity to respondto the allegations and not with theintention to discipline or punish him. His Honour said that Dr Harvey haddetermined to institutean investigation into Mr Barclay’s actions becausehe had failed to bring serious allegations to the attention of senior managersand had “proceeded to cast aspersions and innuendo upon his colleagues byway of a widely circulated e-mail.” She thoughtthat this conductprovided prima facie evidence of a breach of the code of conduct and of hisobligations as an employee. She saidshe had decided to suspend Mr Barclaybecause she was of the view that the allegations against him were serious andshe was concernedthat if he were not suspended he might cause further damage tothe reputation of BRIT and its staff. The primary judge referredto DrHarvey’s express denials that she had taken any adverse action because ofMr Barclay’s membership of the AEU, becauseof any role that he heldwithin the AEU, or because he had engaged in industrial activity. She also saidthat it had not occurredto her that Mr Barclay’s conduct gave rise to anyissues under cl 10 of the TAFE Agreement which, in any event, did not conferonMr Barclay the right he asserted.
55. HisHonour then proceeded immediately to comment on Dr Harvey’s performance asa witness and to conclude that he accepted herevidence. After making somecritical comments at [54], his Honour said:

When, however, she was called on to explain her reasons for taking adverseaction against Mr Barclay she provided convincingand credible explanationsof why it was that she took the steps that she did. Dr Harvey said that she hadbeen extremely concernedby the statement that false and fraudulentdocumentation had been prepared for the purposes of the audit. She wished toestablishwhether or not this had occurred and immediately instituted an inquiryto establish whether there was any foundation for the allegation. She adheredto her explanation (see above at [49]-[50]) for calling on Mr Barclay to showcause why he should not be disciplinedfor circulating the e-mail. She saidthat she had determined to exclude him from BRIT campuses and suspend his e-mailaccess becauseshe did not want Mr Barclay on the premises while the auditorswere there and because she did not want any other “looseallegations”made inappropriately during the audit to the detriment ofBRIT. She maintained her denials of having acted against Mr Barclay foranyreason associated with his union membership, office or activities. She had notturned her mind to the possible relevance ofClause 10 of the Agreement. Iaccept her evidence. I am satisfied that she did not act for any proscribedreason. Rather, sheacted for the reasons which she gave.

At [55], his Honour said that the decision to require Mr Barclay to showcause was made bona fide and the “outcome of the disciplinaryproceedingwill be for the enquiry officer to determine”.

56. At[56]-[58], his Honour dealt with the issue whether, in any event, Mr Barclay hadsuffered any loss or damage that would have entitledhim to compensation. HisHonour held that Mr Barclay had not.

Adverse action

57. BRITconceded at first instance that it had taken adverse action against Mr Barclayin three respects, namely by suspending him fromduty, suspending his access tothe internet and requiring him not to attend the premises of BRIT. The fourthform of adverse actionalleged was requiring Mr Barclay to show cause whydisciplinary action should not be taken against him. This was not conceded andthe primary judge did not determine whether it was adverse action. His Honourdid refer to a conflict of authority on the questionwhether being liable toinvestigation or disciplinary proceedings can constitute a sufficient alterationof the position of an employeeto that employee’s prejudice to amount toadverse action. The relevant authorities are:Kimpton v Minister forEducation of Victoria(1996) 65 IR 317;United Firefighters’ Unionof Australia v Metropolitan Fire and Emergency Services Board[2003] FCA 480(2003) 198 ALR 466 at[89];Police Federation of Australia v Nixon[2008]FCA 467(2008) 168 FCR 340 at[46]-[48]; andJones v Queensland TertiaryAdmissions Centre Ltd[2009] FCA 1382 at[23]-[27]. It would also benecessary to consider whether, even if requiring an employee to respond todisciplinary proceedings does not amountto adverse action, it might constitutethreatening to take adverse action which, by virtue of s 342(2)(a) of the FairWork Act, isitself adverse action.
58. Inthe course of the hearing of the appeal, counsel for Mr Barclay and AEU concededthat they had not expressed in their groundsof appeal, or in their writtenoutline of submissions, a ground or argument to the effect that the primaryjudge erred in failingto reach a conclusion about the fourth form of adverseaction alleged. They attempted to put oral argument to this effect. TheCourtinvited them to consider, during the luncheon adjournment, how such a ground ofappeal might be formulated. No applicationto amend the notice of appeal wasmade until the conclusion of the submissions in reply on behalf of the MrBarclay and AEU, whentheir counsel handed up a proposed amended notice ofappeal. Counsel for BRIT opposed the application for leave to amend, on theground of its lateness. The Court refused to grant leave. We therefore refrainfrom determining whether, by calling upon Mr Barclayto show cause why he shouldnot be penalised, BRIT took adverse action against him. For these reasons, weproceed on the basis thatthree elements of adverse action against Mr Barclay,in which BRIT was alleged to have engaged, wereestablished.

An officer

59. Therewas no dispute that Mr Barclay was an officer of the AEU. He was undoubtedly adelegate or representative. As the primaryjudge said, there was no contestabout Mr Barclay’s role as an officer. That role, as the primary judgefound, included advisingmembers on workplace issues, ascertaining the concernsof members and communicating with members about issues of interest or concerntothem. As the primary judge said, it was common ground that as sub-branchPresident of the AEU, Mr Barclay had the right (andprobably the duty) todiscuss workplace issues of concern to members and to advise them about howissues should be resolved. Theprimary judge found that in his role Mr Barclaywas also bound to respect confidences. This evidence amply justified theprimaryjudge’s finding that Mr Barclay sent the email “In his unioncapacity”.
60. WhenMr Barclay sent the email of 29 January 2010 to all members of the AEU employedby BRIT, he was doing so as an officer. Theemail itself carried thedescription “President BRIT AEU Sub-Branch” underneath MrBarclay’s name as the signatureto the email. The email contained twofooters, one of which referred specifically to the AEU Victorian Branch.
61. Tothe extent to which counsel for BRIT attempted to negative this proposition onappeal, they faced two difficulties. The firstwas that BRIT had filed nonotice of contention to signify that they would seek to uphold the judgment on aground other than thaton which the primary judge relied. The second was thatthe evidence made it abundantly clear that, in sending the email, Mr Barclaywasexercising one of his functions as an officer of theAEU.

Industrial activity

62. Theprimary judge did not make a specific finding as to whether, in sending theemail of 29 January 2010, Mr Barclay was engagedin industrial activity and, ifso, what was the nature of that industrial activity. Such a finding was acrucial step in determiningwhether there was a causal connection between theadverse action taken against Mr Barclay and any such industrial activity.
63. Insending the email of 29 January 2010, Mr Barclay was representing or advancingthe views of the AEU, within the meaning of s 347(b)(v)of the Fair Work Act. Mr Barclay was offering advice on behalf of the AEU to its members employed byBRIT that they should not agreeto be part of any attempt to create false orfraudulent documents as part of the audit process. The fact that the advice wasexpressedin strong language did not mean that it ceased to be a representationof the view of the AEU. Similarly the fact that the languagemay have travelledbeyond the terms in which complaints had been made to Mr Barclay did not havethe result that the advice ceasedto be a representation of the views of theAEU. It was not for the management of BRIT, nor is it for the Court, to maketoo closean examination of the terms in which a union delegate communicateswith the members of his or her union.
64. Inthe email, Mr Barclay was also engaging in industrial activity of a kindreferred to in s 347(b)(iii) or (v). By encouragingmembers of the AEU tocontact the AEU and seek support and advice, if they were pressured toparticipate in producing false and fraudulentdocuments for the audit, MrBarclay was encouraging or participating in a lawful activity organised orpromoted by the AEU and representingor advancing the views or interests of theAEU. When Mr Barclay retained the confidences of those members who hadapproached himin his union capacity, and as a result did not report theconcerns raised directly to management, and later refused to provide tomanagement the names of the members who had approached him, Mr Barclay was doingso in his capacity as an officer. He was in thisrespect also engaged inindustrial activity of the kind referred to in
    
    s 347(b)(iii) or (v).
65. Theprimary judge should have made specific findings that Mr Barclay had beenengaged in industrial activity of these kinds, whenhe sent the email of 29January 2010 and retained the confidences of members and failed to providemanagement with the names of themembers who had approachedhim.

A workplace right

66. At[42] of his reasons for judgment, the primary judge doubted that cl 10 of theTAFE Agreement had any relevant application. HisHonour did so on the basisthat no attempt had been made by any employee to invoke the grievance procedurethe subject of that clause.
67. Theclaim for the exercise of a workplace right, asserted by Mr Barclay and the AEU,was based on the provision of cl 10.2 of theTAFE Agreement, that an employeehad the right to seek advice from and be represented by the AEU at all stages ofthe dispute resolutionprocedure. By cl 10.1, a dispute or grievance is said toarise where an employee is aggrieved by a decision or action, arising outof, orreasonably incidental to, matters covered by the TAFE Agreement. It wouldfollow that, if an employee were aggrieved by somedecision or action then adispute or grievance would be taken to have arisen, provided that the decisionor action arose out of orwas reasonably incidental to matters covered by theTAFE Agreement. Such an employee would then have the right to seek advice from,and be represented by, the AEU in relation to that dispute or grievance. Thequestion was not so much whether an employee had invokedthe dispute resolutionprocedure (as the primary judge thought), as whether a dispute or grievanceexisted.
68. Thedifficulty in the present case was that there was no evidence that any memberwas seeking the advice of Mr Barclay, or requestingthat he represent them, inrelation to the issue of incorrect statements in documents being prepared forthe audit. Several memberscommunicated to Mr Barclay assertions that therewere such incorrect statements. There is no indication that they were intendingto seek his advice, or his representation, in relation to those assertions. Perhaps even more importantly, there was no attemptmade to connect the subjectmatter of those assertions with the matters covered by the TAFE Agreement. Analysis of the matters coveredby the TAFE Agreement would have been necessaryif that connection were to be made.
69. MrBarclay himself was seeking neither advice nor representation. Clause 10.2 ofthe TAFE Agreement did not confer on Mr Barclayany express right to advise orrepresent any member of the AEU. Any such right would have to be derived fromcl 10.2 as a rightcorrelative to that of a member to be represented or toreceive advice. It would be necessary to determine whether there was someimplied provision that it was the holder of Mr Barclay’s position who wasto provide the advice or representation. No argumentwas directed to theseissues. They cannot be determined in the present case.
70. Noattempt was made to argue that Mr Barclay had, or was exercising, any role orresponsibility relevant to this case, conferredon him by cl 9 of the TAFEAgreement. The subject matter of that clause is the process of consultation inthe BRIT workplace aboutthe matters to which cl 9.1 refers. It is verydifficult to see how cl 9 could be thought to have had any relevance, when theclaimsfor declarations in the application at first instance were drafted.
71. Forthese reasons, it cannot be said that the primary judge was wrong in failing tomake a finding that, prior to or at the timeof sending the email of 29 January2010, Mr Barclay had, or was exercising, a workplace right. There can be nofinding based onthis ground, that BRIT contravened s 340(1)(a)(ii) of the FairWork Act.

The causal connection

72. Bowlingwas a case where a mix of conduct by an employee who was also a shop stewardwas under consideration. Whether in that case the employerhad been actuated todismiss Mr Bowling by reason of his activities as an officer of the union or byreason of his activities asan employee was complicated by the fact that it wasnot easy to characterise the activities in question as simply those of theemployeeas an employee or those of the officer. That Mr Bowling was regardedby his employer as a trouble-maker may well have been a combinationof both MrBowling’s activities as a shop steward and also as a difficult employee. The employer in that case did not dischargeits onus because it failed toestablish that, when it dismissed Mr Bowling, its action was dissociated ordivorced from Mr Bowling’sactivities as a union officer.
73. Thiscase is clear and involves none of the difficulties which arose inBowling by reason of the confluence of employee activities with theactivities and status of an officer of the union. All of the relevantconductin issue in this case involved Mr Barclay in his union capacity. None of itinvolved him in his capacity as an employeeof BRIT. Mr Barclay’sinteraction with other members of the AEU, in receiving information, maintainingthe confidence of theinformation received, and communicating with AEU membersthrough his email, was all done for and on behalf of the AEU. If an employerhas a basis for complaint, or a legal claim arising out of such conduct, thecomplaint or claim is to be addressed to the union,because the source of thecomplaint or claim is the conduct of the union. If employers were able topunish those of its employeeswho are union members or officers for the conductof their union, the protection to those persons afforded by s 364 would beentirelyillusory and the purpose of the provision defeated.
74. Ifadverse action is taken by an employer in response to conduct of a union, it isimpossible for that employer to dissociate ordivorce from that conduct itsreason for the taking of the adverse action simply by characterising theactivity of the union as theactivity of its employee. The primary judge failedto approach the matter on the basis that BRIT needed to establish that the realreason for the adverse action taken against Mr Barclay lay outside the ambit ofs 346. His Honour did not hold that, in order tosucceed, BRIT had to establishby evidence that the real reason or reasons for the conduct taken against MrBarclay were dissociatedfrom the circumstances that Mr Barclay was an officerof the AEU and had engaged in industrial activity. As we have stated, at [28]above, the search required by s 346 is a search for what actuated the conduct ofthe person who took adverse action, not for whatthat person thinks he or shewas actuated by.
75. Itis clear from the primary judge’s reasons for judgment at [49]-[54] thathis Honour found there were two significant reasonsgiven by Dr Harvey fortaking adverse action against Mr Barclay. One was that he had sent the email of29 January 2010 to membersof the AEU employed by BRIT, without having broughtto the attention of senior management the allegations that were made to him bymembers, or in the email. The second was that the terms of the email were suchas to cause distress to members of the staff of BRIT,to bring the reputation ofBRIT into question and to undermine the confidence of staff in the auditprocess. This second reasongave rise to Dr Harvey’s fear that Mr Barclaywould make further allegations of a similar kind. This was the justificationfor her decision to require him to refrain from entering the premises of BRIT,and to deprive him of access to the internet throughBRIT’s computersystem.
76. Itis clear that, in Dr Harvey’s own terms, both of these reasons werefounded upon the sending of the email of 29 January2010. The first reason wasnot merely that Mr Barclay was in possession of information that Dr Harveythought he was bound to discloseto senior management, it was that he haddisclosed that information to others without disclosing it to senior management.The secondreason concerned the manner in which the disclosure of thatinformation was expressed. As we have said, it was not for Dr Harveyto approveor disapprove the way in which Mr Barclay expressed his communications withmembers of the AEU employed by BRIT.
77. Anexamination of the terms of the letter Dr Harvey gave to Mr Barclay on 2February 2010 confirms that the sending of the email,and the manner in which itwas expressed, were very much part of the reasons for Dr Harvey’s action. The letter opens witha reference to the email. Within its terms, it iscritical of the manner of expression of the email. Indeed, the manner ofexpressionis the very foundation of two of the three allegations that MrBarclay was in breach of provisions of the Code of Conduct for VictorianPublicSector Employees.
78. Thesending of the email, and the manner in which it was expressed, were part of theexercise by Mr Barclay of his functions as anofficer of the AEU. They werealso at the heart of his engagement in industrial activity, as was MrBarclay’s insistence uponretaining the confidences of the members whoapproached him. Accordingly, Dr Harvey’s evidence, as well as the termsof theletter, made it clear that, on behalf of BRIT, Dr Harvey took adverseaction against Mr Barclay in three respects, for reasons thatincluded the factthat he was an officer of the AEU and the fact that he had engaged in industrialactivity. Mr Barclay may nothave performed the industrial activity in which hewas engaged as well as it could have been performed. He may well haveoverstatedthe nature of the complaints that had been made to him. Evenassuming that to be so, Mr Barclay’s failure was the failureof a unionofficer. It was not the failure of an employee and could not have been dealtwith as such. The fact that Dr Harvey mayhave chosen to characterise theconduct of an officer as the conduct of an employee and therefore did not regardherself as takingaction because Mr Barclay was an officer, or because of any ofhis industrial activities, does not alter the fact that her real reasonsincluded these factors.
79. Forthese reasons, the primary judge should have found that BRIT contravened
    
    s346(a) and (b) of the Fair Work Act. It is necessary to allow theappeal.

The appropriate orders

80. Counselfor Mr Barclay and the AEU invited the Court, if it should allow the appeal, toset aside the order of the primary judgedismissing the application, and toproceed to make consequential orders. The consequential orders they sought wereof various kinds. They included declarations that are expressed in the noticeof appeal in terms far too imprecise to justify being made, if indeeddeclarations were to be regarded as appropriate. The orders also include theimposition of penalties for each of the contraventionsof the Fair Work Actestablished. The determination of appropriate penalties would require thehearing of submissions of a detailednature, before the Court could determinewhat penalties were appropriate. Finally, the orders sought included the grantof an injunction,giving effect to the Court’s findings. Counsel for MrBarclay and the AEU made it clear that they sought an injunction restrainingBRIT from proceeding to deal with the disciplinary proceedings the subject of DrHarvey’s letter, handed to Mr Barclay on 2February 2010. Such aninjunction is wholly unnecessary. The Court has concluded that BRIT tookadverse action against Mr Barclay,in contravention of s 346(a) and (b) of theFair Work Act, in three ways. It has not determined whether there was also afourthform of adverse action, involving making him subject to disciplinaryproceedings. It is not to be assumed that BRIT would ignorethat finding, andwould proceed to place itself in further jeopardy by continuing the disciplinaryproceedings, and imposing somepenalty on Mr Barclay as a result of them. Tothe contrary, it is to be assumed that BRIT will abandon those proceedingsforthwith.
81. Inorder that a further hearing can be conducted, to determine the appropriatepenalty or penalties to be imposed on BRIT for thecontraventions we have foundto have occurred, the case should be remitted to the primary judge. It would bean excessive use ofthe resources of the Court to reconvene the Full Court forthe purpose of hearing those submissions. Such a reconvening would involvetheparties in further expense no less than that likely to be incurred by them on afurther hearing before a single judge.
82. Theappropriate orders are that the appeal be allowed, that the order of the primaryjudge, made on 25 March 2010, dismissing theapplication in proceeding numberVID 77 of 2010, be set aside, and that the matter be remitted to the primaryjudge for the makingof further orders in accordance with these reasons forjudgment.
83. Thereshould be no order for costs. The case falls within s 570(1) of the Fair WorkAct, as a proceeding in which no party may beordered to pay costs incurred byanother party. It does not fall within any of the exceptions to that provision,found in s 570(2).
    
    

Associate:

Dated:8 February 2011

REASONS FOR JUDGMENT

LANDER J:

84. Thisis an appeal from an order of a judge of this Court dismissing theappellants’ application for relief under s 346of theFair WorkAct 2009(Cth) (the Act).
85. Ihave had the advantage of reading the draft judgment of Gray and Bromberg JJ. Unfortunately I cannot agree with their Honours’reasons and orders. These are my reasons for concluding that this appeal should bedismissed.

The undisputed facts

86. Thefirst appellant, Mr Barclay, was the President of the Australian Education UnionSub-Branch at the Bendigo Regional Instituteof TAFE (BRIT) who on 29 January2010 without any reference to anyone senior to himself in BRIT published thefollowing email tothe members of the AEU employed byBRIT:

From: Greg Barclay [mailto:gbarclay@britafe.vic.edu.au]

Sent: Friday, 29 January 2010 10:00 AM

Subject: AEU – A note of caution

Hi all,

The flurry of activity across the Institute to prepare for the upcomingreaccreditation audit is getting to the pointy end with thematerial having beensent off for the auditors to look through prior to the visit inFebruary.

It has been reported by several members that they have witnessed or been askedto be part of producing false and fraudulent documentsfor theaudit.

It is stating the obvious but,DO NOT AGREE TO BE PART OF ANY ATTEMPT TOCREATE FALSE/FRADULENT [sic] DOCUMENTATION OR PARTICIPATE IN THESE TYPESOF ACTIVITIES. If you have felt pressured to participate in this kind ofactivity please (as have several members to date) contact the AEU andseek theirsupport and advice.

Greg Barclay

President

BRIT AEU Sub-Branch

87. Atthe relevant time an audit was to be performed by the Victorian Registration andQualifications Authority (the VRQA) on 16-17February 2010 for the purpose ofestablishing whether BRIT had complied with the various requirements on whichits continuing accreditationand funding depended. The evidence ofDr Louise Harvey, who was the Chief Executive Officer at the relevant time,was that:
    2. ...A satisfactory Audit result is crucial for Bendigo TAFE because failure tocomply with VRQA’s requirements could ultimatelylead to Bendigo TAFElosing its accreditation and hence its right to deliver education and training. Accordingly, the Audit is takenvery seriously by Bendigo TAFE.
       
       
    3. Itis the role of the Manager, Teaching Learning and Quality to oversee BendigoTAFE’s preparations for the Audit, with theassistance of his team, whichincludes Mr Barclay in his capacity as Team Leader – TeachingExcellence.
       
       
88. Thatevidence was not disputed. Mr Barclay was part of the team to overseeBRIT’s preparation for the VRQA audit which ifunsatisfactory could meanthat BRIT could lose its accreditation and cease to be able to function as aprovider of education andtraining.
89. Thedocuments to which the email referred were the documents which were to bepresented to the auditors for the purpose of theiraudit.
90. DrHarvey was not a direct recipient of the email. However, on 29 January 2010 anumber of persons who received the email forwardedcopies to senior officers ofBRIT and on 1 February 2010 Dr Harvey was provided with a copy of the emailby one of her managers,Mr Jamie Eckett. Mr Eckett also provided Dr Harveywith the email comments made by two managers who had seen the original emailtothe effect that the email had the potential to cause serious damage to BRIT inthe upcoming audit.
91. MrEckett told Dr Harvey that he had discussed the email with Mr Barclay thatday and had been told by Mr Barclay that he wouldnot provide Mr Eckett with thenames of his informants because they were union members who did not wish todisclose the fact of theirmembership. Mr Eckett also told Dr Harvey that MrBarclay declined to provide details of the allegations.
92. DrHarvey considered the email and the other material with which she had beenprovided, and formed the view that Mr Barclay had contravenedcertain clauses ofthe Code of Conduct for Victorian Public Sector employees (the Code of Conduct),which might necessitate the institutionof disciplinary proceedings. On thenext day she met with Mr Barclay and an AEU representative and handed Mr Barclaya letter inthe following terms:

Dear Greg

Re: Possible Serious Misconduct

I refer to an email sent by you to many Bendigo TAFE staff on Friday,29th January 2010 in which you alleged that seriousinappropriate behaviour has occurred in that several staff members have been“askedto be part of producing false and fraudulent documents for theaudit” for Bendigo TAFE’sre-accreditation.

Your allegation raises the possibility that improper conduct has occurred whichwill require a full and thorough independent investigation. I am in the processof arranging for this to occur. You will be required to be interviewed by theinvestigator appointed. I willsupply more information to you about that in thenear future.

However, the purpose of this letter is to ask that you show cause why you shouldnot be subject to disciplinary action for seriousmisconduct in your role asTeam Leader – Teaching Excellence. It appears to me that suchdisciplinary action may be warrantedbecause of:

• the manner inwhich you have raised the allegation, via a broadly distributed email;
• your actions innot reporting the instances of alleged improper conduct directly to your manageror me to enable us to take appropriateaction; and
• your refusal orfailure to provide particulars of the allegations when asked to do so by yourmanager.
  
  

In my preliminary view, this conduct is inconsistent with the behaviour expectedof a public sector employee, a BRIT employee anda Team Leader in the Teaching,Learning & Quality Unit of this organisation. Additionally, I am of theview that because youraccusation is vague and general, it doesn’tdemonstrate proper respect for your fellow employees and places the individualsconcerned in the re-accreditation process under the shadow of suspicion with noright of reply or defence.

I believe you have breached Clause 3.6, 3.9 and 6.1 of the Code of Conduct forVictorian Public Sector Employees. Clause 3.6 refersto public sector employeesreporting to an appropriate authority any unethical behaviour. You did notreport to your supervisoryour knowledge of possible unethical behaviour and asyet have not provided proof of your allegation to your manager when asked todoso. Clause 3.9 refers to public sector employees behaving in a manner that doesnot bring themselves or the public sector intodisrepute. The manner in whichyou have disseminated your allegations (whether or not they are well-founded)clearly threatens thereputation and probity of Bendigo TAFE. Finally, Clause6.1 refers to public sector employees being fair, objective and courteousintheir dealings with other public sector employees. By making generalisedallegations, that could apply to anyone in the Instituteinvolved in there-accreditation process, you have cast a slur on your colleagues against whichthey cannot defend themselves.

In line with Clause 3 of the BRIT Staff Discipline procedure, it is my decisionto suspend you from duty on full pay until Friday,19thFebruary 2010. This period of time will provide you with the opportunity toformally respond to the charge of serious misconductas outlined above. Youshould provide your response to the charges by no later than 12 noon on 17February 2010. Until 19 Februaryyou are not to attend any of the Bendigo TAFEcampuses and your electronic access account will besuspended.

Yours sincerely

Dr Louise Harvey

Chief Executive Officer

93. On9 February 2010 Dr Harvey wrote to Mr Barclay advising him that she hadappointed Ms Marlene Johnson to conduct an investigationinto Mr Barclay’sallegations. She told him that she required him to be available to beinterviewed by Ms Johnson on Friday,12 February 2010.
94. On12 February 2010, in the course of an interlocutory hearing in this Court, BRITagreed to lift Mr Barclay’s suspension. The disciplinary process whichwas initiated by Dr Harvey’s letter has not yet taken place but hasbeen held in abeyancepending the disposal of the proceedings and the appeal. Indeed, on the appeal, Mr Barclay seeks an injunction restraining BRIT fromconducting such an investigation.

Adverse action

95. Inthe proceeding before the primary judge Mr Barclay asserted that the actiontaken by BRIT in suspending him albeit on full payand precluding him fromBRIT’s campuses constituted adverse action within the meaning ofs 342 of the Act. He also assertedthat the requirement that he show causewhy he should not be subject to disciplinary action for serious misconduct andthe appointmentof Ms Johnson to conduct an investigation also amounted toadverse action within the meaning of that section.
96. Section342 of the Act contains a table which sets out the circumstances in which aperson takes adverse action against another person. Relevantly, for the purposeof this appeal, Item 1provides:

97. Adverseaction includes threatening to take action covered by the table in s 342(1)or organising such action: s 342(2).
98. Atthe hearing before the primary judge the respondent conceded that the suspensionand the preclusion from the BRIT campuses didamount to adverse action withinthe meaning of Item 1, but argued that the requirement to show cause and theappointment of Ms Johnsonto investigate Mr Barclay’s allegations didnot.
99. Thequestion whether that conduct would amount to adverse action would be answeredby reference to paragraph (c) in Column 2 of Item1 and that is, whether therequirement to show cause and the appointment of the investigator altered MrBarclay’s positionto his prejudice.
100. TheAct precludes an employer taking adverse action in the circumstances identifiedin Part 3-1 of Chapter 3 of the Act. It willtherefore be necessary to examinethe relevant provision of that Part.

The claim before the primary judge

101. Itis necessary because of the provisions of Division 7 of Part 3-1 of the Act,especially ss 360 and 361 to which I will laterrefer, to identifyprecisely the claims made by the appellants and to identify precisely the reasonor reasons why the appellantsclaimed the respondent took adverse action againstMr Barclay.
102. Inthe originating application which was filed on 10 February 2010, the appellantscomplained that:
     1. therespondent had contravened s 346(a) of the Act by taking adverse action forthe reason that the first appellant was an officerof the second appellant;
        
        
     2. therespondent had contravened s 346(b) of the Act by taking adverse action forthe reason that the first appellant:
        
        

(a)encouraged or participated in a lawful activity organised or promoted by thesecond applicant; or

(b)represented or advanced the views, claims or interests of the secondapplicant;

3. therespondent had contravened s 340(1)(a)(ii) of the Act by taking action forthe reason that the first appellant exercisedworkplace rights being:
   
   

(a)a role or responsibility under clause 10 of the Victorian TAFE TeachingStaff Multi Business Agreement (2009)(TSMBA);

(b)a role or responsibility under clause 9 of theTSMBA;

4. therespondent had contravened s 340(1)(a)(ii) of the Act by taking an adverseaction for the reason that the first appellantexercised a workplace right
   
   

(a)by participating in a process or proceeding under a workplace instrumentbeing a dispute settlement procedure under clause 10or a consultation underclause 9 of the TSMBA.

103. Insummary therefore the appellants claim that the respondent took adverse actionagainst Mr Barclay because:

(a)the first appellant was an officerof the second appellant – a contravention of s 346(a) of the Act;

(b)the first appellant encouraged or participated in a lawful activityorganised by the second appellant – a contraventionof s 346(b) ofthe Act;

(c)the first appellant represented or advanced the views of the secondappellant – a contravention of s 346(b) of theAct;

(d)the first appellant exercised workplace rights being a role orresponsibility under clause 10 of the Victorian TAFE Teaching StaffMultiBusiness Agreement (TSMBA) – a contravention of s 340(1)(a)(ii) ofthe Act;

(e)the first appellant exercised a workplace right by participating in aprocess or proceeding under a workplace instrument beinga dispute settlementprocedure under clause 10 or a consultation under clause 9 of the TSMBA –a contravention of s 340(1)(a)(ii)of the Act.

104. Ineach of those claims the appellants claimed that the respondent took the actionfor the reason indicated or for reasons that includethe reason. In respect ofeach claim the appellants contended that the adverse sectionincluded:

(a)requiring the first appellant to show cause why the first appellant shouldnot be the subject of disciplinary action for seriousmisconduct;and

(b)threatening to take disciplinary action against the firstappellant.

105. Theappellants sought declarations in the terms of those claims together with afurther declaration that the:

First appellant is not obliged to disclose to the respondent the names ofmembers of the second appellant who:

(1)have sought the first appellant’s advice pursuant to clause 10.2 ofthe TSMBA;

(2)are represented by the first appellant pursuant to clause 10.2 of theTSMBA.

106. Inaddition, the appellants sought orders:

(a)for the imposition of apenalty for each contravention pursuant to s 546(1) of the Act;

(b)that pursuant to s 546(1) of the Act the penalty be paid to thesecond appellant or alternatively the first appellant;

(c)that the respondent pay compensation pursuant to s 545(2)(b) of theAct for the loss suffered by the appellants as a resultof thecontraventions;

(d)for interest;

(e)for a permanent injunction “to give effect to the Court’sorders and findings”.

107. Theappellants also sought interlocutory relief for interlocutory injunctionsrelating to the first appellant’s suspensionand preclusion fromBRIT’s campuses and the requirement for the first appellant to show causeand the threat of disciplinaryaction. That relief does not need to beaddressed because this Court is only concerned with an appeal against ordersrelating tothe appellants’ claim for permanentrelief.

The legislation

108. Chapter3 of the Act addresses the rights and responsibilities of employees, employersand organisations. The objects of the Partare set out in s 336 of theAct:

336The objects of this Part are asfollows:

(a)to protect workplace rights;

(b)to protect freedom of association by ensuring that personsare:

(i)free to become, or not become, members of industrial associations;and

(ii)free to be represented, or not represented, by industrial associations;and

(iii)free to participate, or not participate, in lawful industrialactivities;

(c)to provide protection from workplacediscrimination;

(d)to provide effective relief for persons who have been discriminated against,victimised or otherwise adversely affected as aresult of contraventions of thisPart.

109. Division3 of the Act deals with workplace rights. Section 340(1) relevantlyprovides:

(1)A person must not take adverse action against anotherperson:

(a)because the otherperson:

(i)has a workplace right; or

(ii)has, or has not, exercised a workplace right; or

(iii)proposes or proposes not to, or has at any time proposed or proposed notto, exercise a workplace right;...

110. Inthis case the appellants’ 3rd and4th complaints were that the adverse action was takenin contravention of s 340(1)(a)(ii) in that the first appellant hadexerciseda workplace right. Section 341 addresses the meaning of a workplaceright.
111. Section 341(1)relevantly provides:

(1)A person has aworkplace right if theperson:

(a)is entitled to the benefit of, or has a role or responsibility under, aworkplace law, workplace instrument or order made byan industrial body;or

(b)is able to initiate, or participate in, a process or proceedings under aworkplace law or workplace instrument;...

112. Section341(2) addresses the phrase used in s 341(1)(b) “a process orproceedings under a workplace law or workplace instrument”. It providesrelevantly for the 3rd and 4thclaims:

(2)Each of the following is a process or proceeding under a workplace law orworkplace instrument:

...

(j)dispute settlement for which provision is made by, or under, a workplace lawor workplace instrument;

(k)any other process or proceedings under a workplace law or workplaceinstrument.

113. Division4 deals with industrial activities. Section 346provides:

A person must not take adverse action against another person because the otherperson:

(a)is or is not, or was or was not, an officer or member of an industrialassociation; or

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

(c)does not engage, or has at any time not engaged or proposed to not engage,in industrial activity within the meaning of paragraphs347(c) to(g).

114. Theappellants rely upon s 346(a) for their first complaint and s 346(b)for the second complaint. The expression “engagesin industrialactivity” in s 346(b) is defined in s 347 which, relevantlyhaving regard to the appellants’2nd claim,provides:

A personengages in industrial activity if theperson:

...

(b)does, or doesnot:

...

(iii)encourage, or participate in, a lawful activity organised or promoted byan industrial association; or

...

(v)represent or advance the views, claims or interests of an industrialassociation;

115. Division5 gives other protections to employees but they are not directly relevant forthe purpose of this appeal. Division 7 dealswith ancillary rules which applyto Divisions 3, 4 and 5. Sections 360, 361 and 362 are all relevant. Section360 provides:

360 Multiple reasons for action

For the purposes of this Part, a person takes action for a particular reason ifthe reasons for the action include thatreason.

116. Ifa person takes action for more than one reason, an applicant need only show thatone of the reasons for which the person tookthe action was an impugnedreason.
117. Itcan be seen from the way the appellants framed their claims that the appellantsrely upon s 360.
118. Section361 provides:

361 Reason for action to be presumed unless provedotherwise

(1)If:

(a)in an application in relation to a contravention of this Part, it is allegedthat a person took, or is taking, action for a particularreason or with aparticular intent; and

(b)taking that action for that reason or with that intent would constitute acontravention of this Part;

it is presumed, in proceedings arising from the application, that the actionwas, or is being, taken for that reason or with thatintent, unless the personproves otherwise.

(2)Subsection (1) does not apply in relation to orders for an interiminjunction.

119. Section361 is important. It raises a rebuttable presumption when it is alleged that aperson took or is taking action for a particularreason or with a particularintent. If such an allegation is made in an application, it is presumed thatthe action was or is beingtaken for the reason or intent alleged unless theperson against whom the allegation is made proves otherwise. Section 361 caststhe onus upon who it is alleged took or is taking an action for a particularreason or with a particular intent to prove that theperson did not in fact doso.
120. Section361 only operates to raise the presumption in relation to the particular reasonsin an application. That is why I said in[17] that it is necessary to identifyprecisely the claims made by the appellants in their application and why in [19]I identifiedthose claims. Regard must be had to the reason alleged in theapplication which initiated the proceeding.
121. Section362 provides:

362 Advising, encouraging, inciting or coercingaction

(1)If:

(a)for a particular reason (thefirst persons’ reason), aperson advises, encourages or incites, or takes any action with intent tocoerce, a second person to take action; and

(b)the action, if taken by the second person for the first person’sreason, would contravene a provision of this Part;

the first person is taken to have contravened theprovision.

(2)Subsection (1) does not limit section550.

122. Section362 is relevant because of the arguments advanced by the appellants as to theproper construction of s 346.
123. Boths 340 and s 346 are civil remedy provisions to which s 546applies. Section 546 empowers the Court to imposepecuniary penalties if theCourt is satisfied that a person has contravened a civil remedy provision:s 546(1). That sectionalso provides for the maximum pecuniary penaltywhich may be imposed and payment of that penalty. Section 545 empowers theCourtto award compensation for a loss that a person has suffered because of acontravention of a civil remedy provision: s 545(2). Section 547 providesfor an award of interest in relation to an amount that a person is ordered topay under the Act. For reasonswhich follow, this Court in my opinion does notneed to address those sections.

The primary judge’s reasons

124. Theprimary judge first addressed a question of the construction of s 346 ofthe Act which was raised by the appellants.
125. Itwas contended by the appellants before the primary judge that the inclusion ofthe word “because” in s 340(1)(a)and in the preamble tos 346 meant that the actor’s subjective reasons for taking theadverse action were not relevantand should not be taken into account. It wascontended by the appellants that the Court should approach a consideration ofthosetwo sections by applying an objective test. A subjective test was to beeschewed.
126. Theprimary judge rejected the appellants’ construction of those sectionswhich he said was inconsistent with the legislativehistory, relevant principlesof statutory construction and authority. He concluded that the test in both ofthose sections was subjectiveand required the Court to determine why theemployer took the adverse action against the employee by reference to theevidence fromthe decision maker which would explain why the adverse action wastaken.
127. Theprimary judge addressed the appellants’ argument that the first appellanthad distributed the email only to Union membersin the first appellant’scapacity as the Sub-Branch President of the AEU as a result of allegations madeto the first appellantby four members of the AEU who were employed at BRIT. The primary judge considered the first appellant’s claim that thosefourmembers did not wish to have him pass the allegations on to management and didnot wish to have their identities disclosed andthe first appellant’sassertion that he had not intended that the email be seen by senior managers. It was part of the appellants’case that the footers to the email requiredpersons who were not intended to receive the email to destroy that email.
128. Theprimary judge considered the first appellant’s evidence that he hadresponsibilities as the Sub-Branch President of theAEU to represent the viewsof the AEU’s members and he relied upon clauses 10.1 and 10.2 of the TSMBA(see [96] below).
129. HisHonour noted that there was no dispute that the first appellant was entitled toand was probably bound to receive complaintsof matters of concern from membersand to advise those members in respect of those complaints, and if necessarytake action uponthose complaints. Again it was not disputed that he wasentitled to receive those complaints and deal with them in confidence.
130. Theprimary judge analysed the evidence of what the first appellant had been told bythe four members and found that the claim thatmembers had “witnessed orbeen asked to be part of producing false or fraudulent documents for theaudit” was not anaccurate characterisation of the information with whichhe had been provided.
131. Theprimary judge found that the email came to the attention of Dr Harvey because ofconcerns by managers who thought she ought tobe advised of the contents of theemail. He found that Dr Harvey “was entitled (if not bound) toinvestigate the allegations”. He rejected the appellants’ case thatshe was precluded from doing so because of the footers which were attached tothe email. He did not find it necessary to determine whether Dr Harvey shouldhave destroyed the email in accordance with the footer, becausein fact she didnot and her failure to do so was irrelevant in determining the issues before theCourt.
132. Theprimary judge noted the concession made by the respondent in relation to theadverse action relating to suspension and preclusionto which I have referred(at [15]), and considered the question whether the commencement of disciplinaryproceedings amounted tothe taking of adverse action. He noted the competingauthorities on the point and concluded that whether the issuing of a show causenotice or the laying of disciplinary charges constituted adverse action dependsupon the particular circumstances of any given case. He did not reach aconclusion as to whether the particular circumstances before him meant that theissue of the show cause noticeor the laying of disciplinary charges constitutedadverse action.
133. Theprimary judge addressed Dr Harvey’s evidence which was to the effect thatshe had taken the action which she did not forany impermissible reason and headdressed the reasons which she gave. He said (at[51]-[52]):

She had determined to institute an investigation into Mr Barclay’s actionsbecause it appeared to her that he had failed tobring serious allegations tothe attention of senior managers and had “proceeded to cast aspersions andinnuendo upon his colleaguesby way of a widely circulated e-mail.” Sheconsidered that this conduct provided “prima facie evidence of a breach ofthe code of conduct and his obligations as a [BRIT]employee.”

Dr Harvey said that she had decided to suspend Mr Barclay “because I wasof the view that the allegations against him wereserious and I was concerned ifMr Barclay was not suspended he might cause further damage to thereputation of the [BRIT] andof the staff in the[BRIT].

134. Afteraddressing her denials that she had taken any adverse action for anyimpermissible reason he said (at [54]-[55]):

Dr Harvey was a somewhat tentative and nervous witness, especially at thecommencement of her cross-examination. At times she wasunnecessarily guardedand defensive. At one point, for example, she was disposed to deny that theexhortation to members, in MrBarclay’s e-mail, not to agree to be part ofany attempt to create false or fraudulent documentation, was consistent withBRIT’sprevention of fraud policy. When, however, she was called on toexplain her reasons for taking adverse action against Mr Barclaysheprovided convincing and credible explanations of why it was that she took thesteps that she did. Dr Harvey said that she hadbeen extremely concerned by thestatement that false and fraudulent documentation had been prepared for thepurposes of the audit. She wished to establish whether or not this had occurredand immediately instituted an inquiry to establish whether there was anyfoundation for the allegation. She adhered to her explanation (see above at[49]-[50]) for calling on Mr Barclay to show cause whyhe should not bedisciplined for circulating the e-mail. She said that she had determined toexclude him from BRIT campuses andsuspend his e-mail access because she did notwant Mr Barclay on the premises while the auditors were there and because shedid notwant any other “loose allegations” made inappropriatelyduring the audit to the detriment of BRIT. She maintained herdenials of havingacted against Mr Barclay for any reason associated with his union membership,office or activities. She had notturned her mind to the possible relevance ofClause 10 of the Agreement. I accept her evidence. I am satisfied that she didnotact for any proscribed reason. Rather, she acted for the reasons which shegave.

In making this finding I am not to be understood as endorsing or criticising anyor all of the action which she took. Nor is itappropriate that I express anyviews on the issues in dispute in the disciplinary proceeding which Dr Harveyhas instituted. Thedecision to require Mr Barclay to show cause was made bonafide. The outcome of the disciplinary proceeding will be for the enquiryofficer to determine having considered the evidence and the submissions of theparties.

135. Withoutsaying so, his Honour treated the findings in those paragraphs as despositive ofthe proceedings for declarations and orders. However before he concluded hisreasons, he addressed the question of compensation under s 545 of the Act. He found that thefirst appellant had failed to establish that he had sufferedany loss as a result of the adverse action which had been taken againsthim,because he had suffered no loss of salary whilst suspended on full pay. Although the first appellant had deposed to some feelingsof embarrassment andcertain ill-health during February, the first appellant also acknowledged thathe was subject to other stressesat the relevant time and his Honour observedthat no medical evidence was called to link any illness suffered by him to theadverseaction which had been taken against him. For those reasons he concludedthat the first appellant would not be entitled to compensationeven if he werewrong to conclude as he did that there had been no contraventions.
136. HisHonour did not address the second appellant’s claim for compensation whichwas contained in the application, presumablybecause such a claim was either notmaintained or was clearly untenable. The primary judge dismissed theproceeding.

The grounds of appeal

137. Bothappellants have appealed on the one notice of appeal relying upon five separategrounds of appeal. During the hearing of theappeal whilst Mr Gunst QC wasmaking his submissions on behalf of the appellants, Mr Gunst indicated that hewould be applying forleave to amend the notice of appeal to include a furtherground to the effect that the primary judge had erred in failing to findthatrequiring the first appellant to show cause why he should not be submitted todisciplinary action constituted adverse actionwithin the meaning of the Act. As I have mentioned, the primary judge did not finally rule on that issuebecause he was of the opinionthat the proceeding should be dismissed because nocontraventions were proved.
138. Infact, no amended notice of appeal was produced to the Court until the end ofMr Gunst’s reply. The respondent opposedthe application for leaveto amend the notice of appeal to propound that ground and the Court wasunanimously of the opinion thatthe application for leave should be refused. For my part, I thought the application was made far too late, because if theapplicationwere allowed the respondent would have been required to address theground at some later time. The application was also made withoutanyexplanation as to why the ground had not been included in the notice of appealas filed and without any explanation as to whyan application had not been madeat an earlier time to include the ground in circumstances where it was clearfrom his Honour’sreasons that his Honour had not, for reasons which hisHonour gave, reached a final conclusion on that matter.
139. Thefive separate grounds upon which the appellants rely may be summarised:
     1. Onthe basis of His Honour’s own findings the primary Judge erred in notfinding that Respondent contravened ss 340 and346 of the Act.
        
        

[Particulars omitted]

2. Theprimary Judge erred in finding that Dr Harvey had denied that she had takenadverse action because Mr Barclay had engaged in industrialactivities.
   
   
3. Inconcluding that the Respondent did not act for a proscribed reason the primaryJudge’s conclusion was clearly wrong and glaringlyimprobable.
   
   

[Particulars omitted]

4. Inconcluding that the Respondent did not act for a proscribed reason, the primaryJudge “failed to appreciate the weight, orbearing of establishedcircumstances” in that the first appellant
   
   

(a)was acting as an officer of theAEU;

(b)was engaging in industrial activities;or

(c)was exercising a workplace rightby:

(i)keeping the members complaintsconfidential;

(ii)not revealing the names of the unionmembers;

(iii)sending the email of 29 Jan2010.

5. Theprimary Judge wrongly construed “because” in sections 340 and 346 ofthe Act.
   
   
140. Theorders sought by the appellants in the notice of appeal mirror the claims,declarations and orders sought in the application,save that there is no ordersought in the notice of appeal that the Court grant a declaration that the firstappellant is not obligedto disclose to the respondent the names of the membersof the second appellant who sought the advice of the first appellant and whowere represented by the first appellant pursuant to clause 10.2 of the TSMBA. Because the notice of appeal otherwise seeks the sameorders as the application,it is not necessary to set out the relief claimed.
141. Duringthe hearing it was pointed out to the appellants’ counsel that althoughthe appellants sought an order in the noticeof appeal that the respondent paythe appellants compensation, there was no ground of appeal against hisHonour’s finding thatthe first appellant had not suffered any loss. Theorders sought seeking compensation and interest for both appellants wereabandonedduring the appeal.

The case before the primary judge

142. BeforeI address the submissions which were made on appeal it is necessary to saysomething about the way in which the appellantsran this case before the primaryjudge. During the hearing of the appeal in response to questions from the Courtthe parties providedthe Court with their written outline of submissions to theprimary judge. At trial the appellants contended that the adverse actiontakenby the respondent was as claimed in the application and the orders sought in thenotice of appeal: paragraph 51 of the of theappellants’ writtensubmissions at trial (APWSAT). For their claims the appellants principallyrelied upon s 346(a) ofthe Act. The appellants contended that thequestion of causation in s 346(a) was objective: paragraph 36 of theAPWSAT. Theappellants relied upon s 360 of the Act and upon therebuttable presumption in s 361.
143. Theappellants contended that for the claim under s 346(a) “a reason forthe respondent’s adverse actions were thefirst applicant’sactivities as an officer”: paragraph 45 of the APWSAT.
144. Theappellants contended that the protection granted by that paragraph “is notlimited to prohibiting adverse action due tothe status of an employee as amember or officer”: paragraph 56 of the APWSAT.
145. Theycontended at paragraph 57 of the APWSAT:

Adverse action will contravene subsection 346(1)(a) if it is takenbecause:

(a)The applicant has carried out ordinary activities as an officer orrepresentative; or

(b)The applicant has taken an action as an incident of holding or exercisinghis or her powers or duties as an officer; or

(c)“The employer was motivated by a dislike of the manner in which thedelegate has performed duties as a delegate”. (Footnotesomitted.)

146. Insupport of that claim the appellants contended before the primary judge that thereasons proffered by Dr Harvey for the adverseaction “are unambiguouslyrelated to the performance of the functions of a representative by MrBarclay”: paragraph 60of the APWSAT.
147. Theyaddressed each of the reasons given in Mr Barclay’s letter of 2 February2010. In respect of each of those reasons theappellants contended that DrHarvey’s evidence should not be accepted and that she should not bebelieved.
148. Theprincipal case put by the appellants before the primary judge was that containedin paragraph 1 of the application, which wasthat the adverse action taken bythe respondent, which included requiring the first appellant to show cause whyhe should not bethe subject of disciplinary action for serious misconduct andthreatening to take disciplinary action against the first appellant,was takenbecause of the first appellant’s activities as an officer of the secondappellant. The appellants’ case wasthat the test of the reasons why therespondent took that course was objective and not subjective.
149. Intheir written submissions the appellants identified “The AlternativeCauses of Action”.
150. Inparagraph 103 of the APWSAT the appellants contended that the respondent hadcontravened s 341(a)(ii) (sic) in that the respondenthad taken adverseaction against the first appellant because he had exercised a workplace right. The reference to s 341(a)(ii)is not correct. I think the appellants wereintending to rely upon s 340(1)(a)(ii).
151. Theappellants contended that the workplace rights which were being exercised werethose in s 341(1)(a) and (b) relying uponthe definition of process orproceeding in s 341(2)(j) and (k).
152. Inparagraph 105 of the APSWAT the appellants asserted that the respondent took theadverse action because the first appellant exerciseda role or responsibilityunder a workplace instrument which is defined in s 12 of the Act to mean aninstrument that is madeunder or is recognised by a workplace law that concernsthe relations between employers and employees. The appellants relied upontheVictorian TAFE TSMBA and, in particular, paragraph 8.2 of that agreement whichthey said created a role or responsibility forthe first appellant. They alsorelied upon clause 10 of the TSMBA (referred to at [45] above and [96]below).
153. Theycontended in paragraph 111 and paragraph 112:
     111. Therole and responsibilities of a representative under clauses 8 and 10 includingthe following:
          
          

(a)Ascertaining whether or not employees are concerned with or aggrieved byactions of the employer;

(b)Consulting with employees about actual or possible concerns, disputes andgrievances;

(c)Giving advice to employees;

(d)Consulting about and discussing any concern, dispute or grievance with othermembers to ascertain the shared extent of theconcern;

(e)Encouraging members with disputes and concerns to consult with, and obtainadvice and support from, AEUrepresentatives;

(f)Keeping confidential any information conveyed in confidence in accordancewith a request made by a member; and

(g)Informing members of the fact that concerns, disputes and grievances hadbeen communicated to a workplacerepresentative.

112. Themembers were clearly “aggrieved” by actions or decisions of theemployer. They were concerned, anxious or worried. They were concerned thatthere might be reprisals if they took the matter further. They had approachedMr Barclay in his capacityas union representative. They were each asked is(sic) they wished to file a formal grievance, a clear indication that theprovisionsof clause 10 of the MBA were activated. They each received advicefrom Mr Barclay, first orally and secondly in the email of 29 January.(Footnotes omitted.)
     
     
154. Theappellants contended that each of the reasons relied upon by Dr Harvey fortaking the action which she did was because the firstappellant was exercising arole or responsibility under the TSMBA; in particular sending out an email whichwas in the exercise ofthat role or responsibility.
155. Nextthe appellants contended that the respondent had taken adverse action becausethe first appellant had exercised a right by participatingin a process under aworkplace agreement relying upon s 340(1)(a)(ii), and in particulars 341(1)(b) and subparagraphs(j) and (k) of s 341(2).
156. Forthis contravention the appellants claimed that the first appellant wasparticipating in a process under clause 10 of the TSMBAand they claimed thateach of the proffered reasons were because the first appellant was exercising aright by taking a step to betteradvise and represent members under theagreement.
157. Lastly,the appellants relied upon s 346(b) to make the claim that the respondenthad taken adverse action against the firstappellant because he had engaged inindustrial activity within the meaning of s 347(b)(v) in that he wasrepresenting or advancingthe views, claims or interests of an industrialassociation.

The appellants’ submissions on appeal

158. Onappeal the appellants contended, as they had at trial, that s 346(a) is notlimited to adverse action because of an officer’sstatus as an officer. The appellants contended that s 346(a) should not be read down by referenceto s 346(b), becauses 346(a) is a remedial provision and should bebeneficially construed. It was submitted that the protection afforded bys 346(a)extends to any adverse action taken because of an officer’sactivities as an officer, because the officer “(a) has carriedoutordinary activities as an officer, or (b) has taken on action as an incident ofholding or exercising his or her powers of dutiesas an officer”.
159. Itwas submitted that the alternative construction that s 346(a) only protectsan officer by right of an officer’s statuswould reduce s 346(a) to amere shell and the paragraph would be devoid of all meaningful benefit.
160. Theappellants contended that s 346(a) mirrors s 351(1) which addressesdiscrimination and an employer taking adverse actionagainst a person who is anemployee because of the person’s race, colour, sex, sexual preference,age, physical or mental disability,marital status, family or carer’sresponsibilities, pregnancy, religion, political opinion, national extraction orsocial origin. It was submitted that both sections are not limited toprotecting employers against adverse action because of the relevant status,butboth sections should be construed to extend to characteristics that appertaingenerally to persons possessing the relevant statusor manifestations of thatstatus.
161. Alternatively,the appellants contended that the respondent had taken adverse action becausethe first appellant had engaged in industrialactivity within the meaning ofs 346(b) and, in particular, because of the provisions of s 347(b)(v)in that the firstappellant was representing or advancing the views or claims orinterests of the second appellant.
162. Grounds2 and 3 of the notice of appeal were not pressed.
163. Ground4 concerned the finding by the primary judge that Dr Harvey “acted for thereasons which she gave” but “didnot act for a proscribedreason”. It was contended by the appellantsthat:

The Full Court should allow the appeal if, in coming to that conclusion, thelearned trial judge proceeded on a wrong principle,or failed to appreciate theweight or bearing of established circumstance or the conclusion is clearly wrongon grounds which donot depend merely oncredibility.

164. Theappellants identified circumstances which they said were inextricablyintertwined with the first appellant’s position asan officer and wouldnot have been carried out by him if he were not an officer, and the doing ofthose acts was the cause of theadverse action. They contended that the learnedprimary judge failed to appreciate “the weight or bearing” of thoseestablished circumstances and acted on a wrong principle.
165. Lastly,in ground 5, the appellants addressed the construction of s 346. Theysubmitted in their written submissions:
     129. ...As the High Court has observed inRe Alcan Australia Ltd; Ex parte Federationof Industrial Manufacturing and Engineering Employees:
          
          

“... trade unions exist to further the industrial interests of theirmembers and to represent them in negotiations with employersand in proceedingsin the various industrial tribunals established for the regulation of theindustrial relationships of employersand employees.” (Footnotesomitted.)

166. Itwas put by the appellants that in determining why an employer has taken adverseaction the Court must not only consider the credibilityof any denial of anyimpermissible motive by the employer, but must consider all of the relevantevidence that bears upon that issue.
167. Itwas contended that the primary judge had fallen into error by only having regardto the subjective intention of Dr Harvey andfailed to have regard to theevidence led on behalf of the appellants concerning the first appellant’srole and the fact thateach of the first appellant’s acts were done in hiscapacity as an officer.
168. Ina separate document which was handed up during the hearing of the appeal theappellants addressed the question of adverse actioncontending that thecommencement of the disciplinary process for serious misconduct by charging thefirst appellant with seriousmisconduct amounts to altering the position of theemployee to the employee’s prejudice and therefore comes within Item 1(c)of s 342(1). For that submission the appellants relied uponPatrickStevedores Operations (No 2) Pty Ltd v Maritime Union of Australia (No 3)(1998) 195 CLR 1 at 18;Community and Public Sector Union v Telstra CorpLimited (2001) 107 FCR 93 at 100; and in particular the dicta ofGoldberg J inUnited Firefighters Union of Australia v Metropolitan Fireand Emergency Services Board(2003) 123 IR 86 at 89 where his Honoursaid:

The laying of the charges imposes a burden on the person’s charge torespond to allegations related to their conduct as employeesof the Board. I donot consider that one can separate out the effect and consequence of the chargesfrom the fact that they occurredbecause of the employee’s employment bythe Board. I do not accept that a person charged is not affected in his or heremploymentuntil the charge has been proven. The expressions found ins 298K(1)(b) and (c) encompasses a wide range of conduct both directandindirect. The laying of the charges exposes an employee of the Board to apotential disadvantage in his or her appointment ifthe charge is ultimatelyproven.

169. Lastlyin a further document handed up at the hearing of the appeal, the appellantslisted the evidence of the first appellant directedto what the first appellantwas told by the four members of the second appellant.
170. Itis not clear to me at least, the purpose of the provision of each of thosedocuments. As already noted, there is no ground ofappeal complaining of thetrial judge’s failure to reach a conclusion as to whether therespondent’s request that thefirst appellant show cause constitutedadverse action and in fact the appellants were refused leave to raise such aground at theend of the appeal.
171. Moreover,there is no ground of appeal dealing with the evidence relating to thecomplaints made by the four members of the secondappellant to the firstappellant. The respondent has referred in its written submissions to thecross-examination of the first appellantand if the document was proffered foranswering that submission it may be of some assistance. However, if thedocument is profferedfor the purpose of raising an issue not raised in thenotice of appeal then the document is of no assistance.

The respondent’s submissions on appeal

172. Therespondent contended that the appellants’ appeal was no more than anattempt to overturn the findings of fact made by thetrial judge incircumstances where there was no proper basis for interfering with thosefindings.
173. Therespondent contended that this Court did not need to determine whethers 346(a) of the Act is limited to adverse actionbecause of anofficer’s status as an officer. The respondent contended that the primaryjudge did not dismiss the applicationbecause he found that s 346(a) waslimited to adverse action because of an officer’s status as an officer,but dismissedthe application because he accepted Dr Harvey’s denial thatshe initiated the investigation and imposed the suspension forany reasonassociated with his Union membership, office or activities. The respondentcontended that in any event the grounds ofappeal do not allege that the trialjudge was in error in respect of his determination as to the scope ofs 346(a) of the Act.
174. Therespondent also contended that the appellants could not rely upon s 346(b)for the same reason.
175. Therespondent contended that whether the respondent was actuated by a proscribedreason or reasons which included a proscribed reasonwas a question of fact. Itcontended that the primary judge accepted the evidence of Dr Harvey that she didnot act for a proscribedreason. That finding, it was contended, ought not bedisturbed unless the appellants could demonstrate positively that the findingwas plainly wrong.
176. Therespondent contended the primary judge’s finding was based on anassessment of Dr Harvey’s credibility and as suchmust stand unless it canbe shown that the trial judge “has failed to use or has palpably misusedhis advantage” or has“acted on evidence which is inconsistent withfacts incontrovertibly established by the evidence” or which was“glaringlyimprobable”:Devries v Australian National RailwaysCommission[1992] HCA 41;(1993) 177 CLR 472 at 479. The respondent contended that thereis nothing in the appellants’ submissions which would allow such a findingtobe made by this Court.
177. Therespondent contended that the appellants’ claim that the primary judgerefused to have regard to relevant circumstanceswhen assessing DrHarvey’s subjective reasons for taking adverse action was amischaracterisation of the primary judge’sreasoning. The respondentcontended that the primary judge did have regard to a number of matters otherthan the subjective evidenceof Dr Harvey and, having weighed up that evidenceand her evidence, concluded that the action was not taken for a proscribedreason.

Clauses 9 and 10 of the TSMBA

178. Theappellants alleged that the respondent had contravened s 346(1)(a)(ii) forthe reasons mentioned in paragraphs 3 and 4 ofthe application. Those reasonsdepend upon the first appellant exercising a workplace right, being a role orresponsibility underclause 10 of the TSMBA or a role or responsibility underclause 9 of the TSMBA or by participating in a process or proceeding underaworkplace instrument, being a dispute settlement procedure under clause 10 or aconsultation under clause 9 of the TSMBA. Theyare the only reasons relied uponfor the 3rd and 4th claims. They are the only reasons therefore that s 361 operates upon.
179. Iset out the relevant parts of the two clauses:

9.CONSULTATION IN INSTITUTEDECISION-MAKING

9.1.The parties recognise that there will be significant consultation duringthe period of the Agreement on matters involving implementationof thisAgreement, operational and cultural change and matters affecting Employeesgenerally or in a particular case. To this end,the parties are committed to acooperative approach to such matters involving joint participation andconsultation.

9.2.An Institute Consultative Committee (ICC) will be established within one(1) month of the commencement of this Agreement forthe purpose of implementingand monitoring this Agreement. The ICC will also be the forum through which theInstitute, its employeesand the Union consult generally on matters affectingEmployees. The Committee shall meet during ordinary hours. Time Allocationsofan agreed amount additional to those provided elsewhere in this Agreement willbe made from scheduled duties for employee representativeson thisICC.

...

10. DISPUTERESOLUTION PROCEDURE
    
    

10.1.A dispute or grievance arises where an Employee on the one hand or theEmployer on the other are aggrieved by a decision oraction, or a failure tomake a decision or act in relation to matters that arise out of, or arereasonably incidental to, matterscovered by thisAgreement.

10.2.The Employee has the right to seek advice from and be represented by theindustrial organisation entitled to represent hisor her interests at all stagesof this procedure.

180. Thequestions in relation to the 3rd and4th complaints is whether the first appellant wassubjected to adverse action for the reason that he was exercising a role orresponsibilityunder clause 9 or 10 of the TSMBA, or was participating in aprocess or proceeding under a workplace instrument being a dispute settlementprocedure under clause 10 or a consultation under clause 9 of theTSMBA.

The construction of the legislation

181. Thestarting point in considering this appeal must be to understand the legislationupon which the proceeding before the primaryjudge was based but before doing soI should, because of the complaints made by the appellants, mention othermatters.
182. AsI have said, Chapter 3 of the Act addresses rights and responsibilities ofemployees, employers and organisations.
183. Thereis no novelty in the sections under consideration, the precursors of which firstappeared in theCommonwealth Conciliation and Arbitration Act 1904 (the1904 Act). The legislative history leading up to the immediate precursors ofthese sections was set out by Marshall J inElliott v Kodak Australasia PtyLtd[2001] FCA 807;(2001) 108 IR 23 at 27-30 and has been summarised by the trial judge inhis reasons at [20]-[22].
184. Chapter3 is designed to give general protections to protect workplace rights, toprotect freedom of association, to provide protectionfrom workplacediscrimination and to provide effective relief from persons who have beendiscriminated against, victimised or otherwiseadversely affected as a result ofthe contravention of Part 3.1.
185. Relevantly,Division 3 of Chapter 3 provides for workplace rights and s 341 addressesthe meaning of workplace rights. Section340(1) protects a person in relationto the identified workplace rights in s 341 by making it unlawful for aperson to takeadverse action against that person because that person has aworkplace right or has not exercised a workplace right or proposes nottoexercise the workplace right or to prevent the exercise of a workplace right bythat person. Section 342 identifies what amountsto adverse action ands 342(2) extends that adverse action to threatening to take action ororganising such action. Division3 is concerned solely with workplace rightsand the protection given to any person in employment against any adverse actiontakenagainst them for any of the reasons in s 340(1)(a).
186. Division4 of Chapter 3 deals with industrial activities. Section 346 makes it unlawfulfor a person to take adverse action againstanother person for any of thereasons in s 346 but, in particular in this case, because the person is orwas an officer or memberof an industrial association or is engaging in or hasengaged in industrial activity as described in s 347(a) or (b). Section347 identifies the industrial activity to which s 346(b) and (c) refers. Section 347 has no application to s 346(a).
187. Division5 gives other protections to employees and makes it unlawful for an employer totake adverse action against employees becauseof an employee’s race,colour, sex, sexual preference, age, physical or mental disability, maritalstatus, family or carer’sresponsibilities, pregnancy, religion, politicalopinion, national extraction or social origin.
188. Division7 provides for ancillary rules and includes ss 360, 361 and 362 to whichreference has already been made.
189. Essentially,Chapter 3 constructs three separate bodies of rights for employees in theworkplace. First, workplace rights in Division3; secondly, industrialactivities in Division 4; and thirdly, other protections includingdiscrimination in Division 5. In respectof those three bodies of rights, theAct makes it unlawful for an employer to take adverse action against anotherperson in Divisions3 and 4 for exercising the rights given by those Divisionsor in Division 5 for reasons of discrimination.
190. Itwould be best to address the last ground of the three grounds remaining becausethat requires a consideration of the proper constructionof s 340 ands 346 of the Act.
191. Thecontention which was put on appeal, and also at trial, was that in theconstruction of s 340 and s 346, no elementof subjective contentionis specified in the sections or required to be shown: see paragraph 29 of thesubmissions of the appellants. The appellants concentrated their argument ons 346.
192. Theappellants contended that the ultimate question was why did the appellant takethe adverse action and that would be answeredby reference to the relevantcircumstances and would not be determined by reference to the subjective reasonsheld by the decisionmaker. In particular, it was argued that the primary judgefocussed exclusively on the reasons given and subjectively held by thedecisionmaker “and the credibility of that reason distracts from the realissue”.
193. Inmy opinion, the appellants’ contention in relation to the construction ofs 340 and s 346 should be rejected.
194. Bothsections are in the same form. They both proscribe conduct“because” the other person, as in the case of s 340,has aworkplace right or is, as in the case of s 346, an officer or member of anindustrial association or a person engagedor who proposes to engage in anindustrial activity. The conduct which is proscribed in both sections is thetaking of adverse actionbecause of any of the matters in s 340(1)(a) ands 346. The two sections must be read in the context of the Act as a whole:K & J Lake City Freighters Pty Ltd v Gordon & Gotch Ltd[1985] HCA 48;(1985)157 CLR 309 per Mason J at 314;Project Blue Sky Inc v AustralianBroadcasting Authority[1998] HCA 28;(1998) 194 CLR 355 at 381.
195. Ifan employee alleges that the employee’s employer took the action for aparticular reason the employer has the onus of provingotherwise: s 362. Sections 340 and 346 therefore have to be considered in the light that thesimple allegation that the employertook the particular action for an impugnedreason will be enough to prove the employee’s case unless the employerproves otherwise. The employer will not discharge that onus by proving that theemployer took the adverse action for a number of reasons which includetheproscribed reason or reasons because s 360 would then be engaged. Theemployer must therefore prove that the employer tookthe adverse action for areason or reasons that did not include the impugned reason. The onus is to bedischarged on the balanceof probabilities:General Motors Holden Pty Ltd vBowling(1976) 12 ALR 605 at 612-5.
196. Inconsidering the context in which ss 340 and 346 are to be considered,reference must also be made to s 362. Section362 provides that if aperson advises, encourages or incites or takes any action with intent to coerceanother person to contravenea provision of Part 3.1, the first person will betaken to have contravened the provision.
197. Thepurpose of the two provisions is to protect persons from taking adverse actionagainst another person for any of the reasonsin the two sections. In any case,where it is alleged that a person took adverse action for any of the particularreasons identifiedin s 340(1)(a) or s 346, the inquiry must be as towhy the person who is said to have contravened the section took theaction. That must mean that the Court has to inquire into the subjective intention ofthe alleged contravenor. A person’sreasons for taking adverse actioncannot be ascertained by employing an objective test. Those reasons can only beidentified byreference to the person’s own intentions.
198. Thealleged contravenor will, if it is alleged that he or she took action for animpugned reason, need to give evidence to escapea finding of contravention thatthe adverse action was taken for a reason other than that alleged. If thealleged contravenor isbelieved by the Court as to why the adverse action wastaken, the proceeding will fail. If, of course, the alleged contravenor isnotbelieved and the Court finds that the adverse action was taken for theparticular reason alleged, the Court will find a contravention. The Courthowever will not consider the alleged contravenor’s evidence in a vacuumbefore deciding whether the evidence shouldbe accepted. Like in any case theevidence will be considered with all the other evidence in the case. But if inthe end the evidenceis accepted, then the alleged contravenor will havedischarged the onus thrust upon him or her by s 361.
199. Inthe end, the question for the Court is what was the reason for the person totake the adverse action. The subjective intentionof the alleged contravenor ifaccepted by the Court to be the actual intention will be determinative. Thatconstruction is consistentwith the reasoning of the High Court inPurvis vState of New South Wales (Department of Education and Training)[2003] HCA 62;(2003) 217CLR 92. The appellants’ argument that the use of the word“because” rather than the expression “for the reasonthat”as had been used in previous legislation means that the Parliamentopted for an objective test rather than a subjective test mustbe rejected fortwo reasons. First, because the difference in the words themselves do not havesuch a result. The use of the word“because” does not bring aboutthe result that the test is objective. An objective test would be simplyinconsistentwith the Ancillary Rules in Division 7 of the Act and, inparticular ss 360, 361 and 362 of the Act. Secondly, the drafterhas usedthe word “because” as a modern form of drafting.
200. Thereason for the taking of the adverse action must be one of the matters in bothsections before the conduct contravenes eithersection. The person’sreasons for taking the adverse action will engage the sections if those reasonsare the proscribed reasonsin those sections.
201. Theconstruction of the sections which I favour does not make the sectionsunworkable. Ordinarily it would be very difficult fora person who is thevictim of adverse action to establish the precise reasons why the adverse actionwas taken against that person. However, as already noted, s 361 reversesthe onus of proof and if a person alleges that a person has taken action for aparticularreason, and that reason would constitute a contravention, it ispresumed that the action was taken for that reason unless the personwho tookthe action proves otherwise. Thus, in this case, it fell upon the respondentand, in particular, Dr Harvey, to satisfythe onus thrust upon the respondent bys 361 to establish the reason or reasons why she took the adverse actionwhich she did.
202. Theconstruction at which I have arrived does not mean that the person who has takenadverse action can simply claim it was takenfor a reason apart from a reason ins 340 or s 346 and that that is the end of the matter. The Court willhave to be satisfiedto the requisite standard that the person claimed he or shetook the adverse action for a reason which would not amount to a contraventionof the section. In assessing whether or not the persons’ evidence oughtto be accepted, the Court will no doubt have regardto all of the facts andcircumstances surrounding the taking of the adverse action to determine whetheror not the reason which isclaimed to be the reason for taking the adverseaction is truly stated.

The grounds of appeal

203. Theprimary judge’s reasons must be understood having regard to thecontentions which were put by the appellants’ counselat trial.
204. HisHonour identified the submission which was put at trial in[23]:

Mr Barclay contended that the inclusion of the word “because” inboth ss 340 and 346 in preference to the phrase“by reason of”which had appeared in some of the earlier legislation had effected a significantchange. He submittedthat, in determining whether or not prejudicial action hadbeen taken “because” of the status or activities of the victim,theactor’s subjective reason for taking the prejudicial action was whollyirrelevant and was not to be taken into account. The test was said to be purelyobjective. In the alternative, he contended that BRIT had not established, onthe balance of probabilities,that it had not acted for one or more of thereasons alleged by him.

205. HisHonour identified the first contention as the primary contention which he saidhad to be rejected because it was contrary tothe legislative history, relevantprinciples of statutory construction and authority. By that his Honour wasrejecting the contentionthat the actor’s subjective reason for taking theprejudicial action was wholly irrelevant and was not to be taken intoaccount.
206. HisHonour considered the legislative history. He considered the context in whichs 340 and s 346 were found. He referredto explanatory memoranda. Heconsidered the decision of the High Court inPurvis v The State of New SouthWales[2003] HCA 62;(2003) 217 CLR 92 where the High Court dealt with the construction ofs 5(1) of theDisability Discrimination Act 1992 (Cth).
207. Hethen identified the test to be considered at[34]-[35]:

The task of the court, in a proceeding such as the present is, then, todetermine why the employer took the adverse action againstthe employee. Was itfor a prohibited reason or reasons which included that reason? In answeringthis question evidence from thedecision-maker which explains why the adverseaction was taken will be relevant. If it supports the view that the reason wasinnocentand that evidence is accepted the employer will have a good defence. If the evidence is not accepted the employer will have failedto displace thepresumption that the adverse action was taken for a proscribedreason.

If an employer, who is alleged to have contravened one of the provisions ofPart3-1 in which the word “because” is to be found, adduces evidencewhich persuades the court that it acted solely for a reasonother than one ormore of the impermissible reasons identified in a particular protectiveprovision, it will have made good its defence. Because of the reverse onusprovision the employer will normally need to call evidence from thedecision-maker to explain what actuatedhim or her to act to theemployee’s detriment. As Buchanan J said inSeymour (at 14), theemployer will usually have to provide “sworn evidence denying any[proscribed] reason...and, in most cases, anexplanation of the real reason for[the adverse action] consistent with the absence of [proscribed reasons] is, ina practical sense,also necessary”. That evidence can be tested in thelight of established facts. The credibility of the decision-maker willbeassessed by the court.

208. Inmy opinion, his Honour’s approach was correct. The question is why wasthe adverse action taken? That question will beanswered by reference to thesubjective intention of the decision maker. Ordinarily the decision maker willhave to give evidenceas to the reason or reasons why the adverse action wastaken. If the decision maker’s evidence having regard to“establishedfacts” is accepted, then the decision maker will havedischarged the onus imposed upon the decision maker by s 361 oftheAct.
209. Theappellant contended that his Honour’s reasons concentrated upon thesubjective intention of Dr Harvey to the exclusionof any other evidence andthat the primary judge did not weigh up the evidence led on behalf of theappellant concerning his roleand the fact that each of the acts done by theappellant were acts done in his capacity as an officer in determining thereliabilityof Dr Harvey and the credibility of her evidence. In my opinion,that contention cannot be accepted. At some stage his Honour hadto considerand analyse the evidence of Dr Harvey. That is what he did in that part of hisreasons which are sought to be impugned. It cannot be said that he ignored theevidence which was led which was relevant to a consideration of DrHarvey’s reliabilityand the credibility of her evidence.
210. Inmy opinion, ground 5 must be dismissed.
211. Thereis one other matter of construction relating to s 346, and in particularparagraph (a), which needs to be addressed havingregard to theappellant’s contention.
212. Theappellants contended that s 346(a) is not limited to adverse action becauseof an officer’s status as an officer andshould not be read down byreference to “the industrial activities” referred to ins 346(b). The appellants contendedthat s 346(a) extends to adverseaction because the officer has carried out ordinary activities as an officer orhas taken anaction as an incident of holding or exercising his or her powers orduties as an officer.
213. Inmy opinion, that contention is contrary to the proper construction ofs 346(a).
214. Thereis in my opinion no warrant for reading s 346(a) in the way contended forby the appellants. Section 346(b) addressesthe circumstances which theappellants contend s 346(a) addresses. The decision maker who takesadverse action against anotherperson simply because that person is an officeror member of an industrial association without that person doing anythingfurthercontravenes s 346(a). It is not necessary that the decision makertakes that action because the officer or member of an industrialassociation hasdone or not done something. The contravention of s 346(a) merely requiresa decision maker to take action becausethe person against whom the action istaken is an officer or a member of an industrial association.
215. Ifthe decision maker takes action against an officer or member of an associationbecause that person engages in or proposes to engagein industrial activity,then that will be a contravention of s 346(b). But for s 346(a), theimpugned reason is simplybecause the person against whom the adverse action istaken is an officer or member of an industrial association.
216. Thesurrounding circumstances will be relevant in assessing whether the employertook the action because the employee was an officeror member of an industrialassociation. Those circumstances will be relevant to determine whether anemployer’s evidence thataction was not taken for that reason should beaccepted but in the end result the question which has to be addressed is whethertheaction was taken because the employee was an officer or a member of anorganisation and not because the employee did or did not dosomething as anofficer or a member of an organisation:General Motors Holden Pty Ltd vBowling(1977) 12 ALR 605 per Mason J at 621-623.
217. Iagree with the reasons of Dowsett J inHarrison v P T Tube Mills ProprietaryLimited[2009] FCA 220;(2009) 181 IR 162 who said at 232 when describing a precursor tothis section:

To the extent that this implies that s 793(1)(a) addresses conduct as wellas union membership or standing as an officer ordelegate, it is inconsistentwith the observations made by Mason J inBowling. Unfortunately, itseems that neither his Honour nor Marshall J was referred to that decision or tothe decision of Merkel J inAnsett. I proceed upon the basis thatss 792(1)(a) and 793(1)(a) proscribe dismissal because of union membershipor status as an officeror delegate, but not because of conduct. Howeverconduct is relevant to the question in the way explained by Mason J inBowling.

218. Anemployer will only contravene s 346(a) of the Act if an employer takesadverse action against a person who is an officeror member of an industrialorganisationbecause the person is a member or officer of anindustrial organisation.
219. Theappellants’ contention that s 346(a) should be read in the waycontended for the appellants because of the provisionsof s 351 must berejected. Section 351 proscribes conduct by an employer against a person who isan employee for any of thereasons given in s 351(1). Section 351(1) doesnot support a contention that s 346(a) should be read in the mannercontendedfor by the appellants.
220. Grounds1 and 4 largely raise factual issues.
221. Theappellants did not either in argument or in the notice of appeal challenge thefindings of fact made by the primary judge. Theappellants’ argument wassaid to rest on those findings.
222. Theprimary judge found that Dr Harvey did not take adverse action because the firstappellant was a member or officer of an industrialorganisation, nor did shetake adverse action because the first appellant was engaged in industrialactivity.
223. Theappellants contend that because the trial judge found that one of the reasonsfor the adverse action was that Mr Barclay “failedto bring seriousallegations to the attention of senior managers” meant that the trialjudge had to find that the first appellantwas engaged in an industrialactivity, namely representing or advancing the interests of the AEU and itsmembers by respecting members’requests for confidentiality and protectingthem from exposure to prejudicial retaliatory action by the employer. In thosecircumstances,because of those uncontested facts and findings, it was put therespondent contravened s 346(a) and s 346(b) by takingadverse actionagainst Mr Barclay because he was an officer and because he engaged inindustrial activity.
224. Thefirst submission can be disposed of quickly. On the construction ofs 346(a) of the Act which I favour, the respondentand Dr Harvey would havecontravened the section if Dr Harvey had taken the adverse action simply becausethe first appellant wasa member or officer of the AEU. Her evidence and theprimary judge’s finding, both of which are not challenged on appeal,isthat she did not take that adverse action for that reason. That disposes of theappellants’ argument that the respondentcontravened s 346(a).
225. Theappellants’ argument that there was a contravention of s 346(b) alsoshould be rejected. The respondent and Dr Harveywould have contraveneds 346(b) if Dr Harvey had taken the adverse action against the firstappellant because the first appellantwas engaging in industrial activity withinthe meaning of s 347(a) or (b) of the Act.
226. Shetook the adverse action because, as the primary judge has found, his conductprovided “prima facie evidence of a breachof the Code of Conduct and hisobligations as a (BRIT) employee”. She also took the adverse actionbecause as she said inevidence and the the primary judge has accepted, “Iwas of the view that the allegation against him was serious and I was concernedif Mr Barclay was not suspended he might cause further damage to the reputationof the (BRIT) and of the staff in the BRIT”. Neither of those reasons fortaking adverse action amounts to a contravention of s 346(b). First, shedid not take the adverseaction because the first appellant was engaging in theindustrial activity referred to in s 347(a) by becoming or remainingorceasing to be an officer or member of an industrial association. Nor in myopinion was the first appellant engaged in industrialactivity in any of thesenses referred to in s 347(b). Dr Harvey did not, as the appellantscontend, take the adverse actionbecause the first appellant was engaged inrepresenting or advancing the views, claims or interests of an industrialassociation. Whilst he might have been doing that at the time that she took theadverse action, that was not the reason why she took the adverseaction. Shetook the adverse action as the primary judge has found for the reasons to whichI have referred. Those reasons arenot challenged on appeal and were acceptedby the primary judge. Absent any challenge to those reasons or a challenge tothe primaryjudge’s findings, the appellants cannot make out acontravention by the respondent or Dr Harvey of s 346(b).
227. Itis not enough as the appellants have contended that a union official can makeout a contravention by simply establishing thatadverse action was taken whilstthe union official was engaged in industrial activity. That is not enough toestablish the contravention. The contravention is only established if in factthat is the reason for the taking of the adverse action.
228. Inmy opinion, the first ground is not made out.
229. Asto the fourth ground, the appellants accept that the primary judge’sfinding that Dr Harvey acted for the reasons whichhe gave was a finding offact. However, the appellants contend that his Honour’s holding that DrHarvey “did not actfor a proscribed reason” is a conclusion oflaw.
230. Theappellants contend that the Court “should allow the appeal if, in comingto that conclusion, the learned trial judge proceededon a wrong principle, orfailed to appreciate the weight or bearing of established circumstances or thatthe conclusion is clearlywrong on grounds which do not merely depend oncredibility”.
231. Theappellants contend that the established circumstances were that Mr Barclay hadreceived complaints from members in his capacityas an officer of the AEU and hewas asked not to reveal to management the names of the members who made thecomplaint and, in hisunion capacity, forward an email to members of the AEUemployed by BRIT. Accepting that they are the established circumstances,thatdoes not lead to the conclusion that his Honour was wrong to conclude that DrHarvey and the BRIT had not contravened the Act.
232. Theappellants cannot avoid the consequences of the findings made by the primaryjudge. Those findings are that Dr Harvey was notmotivated by any of theproscribed reasons to take the adverse action she did. It may be, as I said inrelation to ground 1, thatat the time the first appellant was engaged in somesort of industrial activity, although that is an assumption which was notproved,but that does not mean that taking adverse action against him amounts totaking it for the reason that the first appellant was engagedin that industrialactivity.
233. Inmy opinion, this ground should also be dismissed.
234. Theappellants contended that the finding by the primary judge that one of thereasons taken by Dr Harvey for the adverse actionwas because the firstappellant had failed to bring serious allegations to the attention of seniormanagement amounted to a contraventionof s 346(a). In my opinion, that isnot correct. Dr Harvey did take the adverse action which the respondentadmitted for areason which included the reason that the first appellant hadfailed to bring serious allegations to the attention of senior managers. Thatreason is not a contravention of s 346(a). As I have attempted to explain,s 346(a) is engaged if a person takesadverse action against another personsimply because that other person is an officer or member of an association. Thereason whichDr Harvey gave is not such a reason and does not include such areason: s 360.
235. Thefacts found by the primary judge do not lead to the conclusion contended for bythe appellants that there had been a contraventionof s 346(a). Nor doesthe primary judge’s finding of that reason submitted by Barclay mean thatthere has been a contraventionof s 346(b).
236. Theappellant’s 3rd and 4thclaims relied upon contraventions of s 340(1)(a)(ii) of the Act forexercising the workplace rights identified in those twoclaims. Again, in myopinion, the primary judge’s findings in relation to Dr Harvey’sreasons for taking the actionthat she did are decisive but there are furtherreasons for concluding that Dr Harvey did not take the action for the impugnedreasonother than her own evidence.
237. Aperson will contravene s 340(1)(a)(ii) if the person takes adverse actionagainst another person because that person is exercisinga workplace right. That will include circumstances where the person against whom the action istaken has a role or responsibilityunder a workplace law or instrument or theperson is able to initiate or participate in a process or proceeding under theworkplacelaw or instrument.
238. Clause9 enjoins the parties to involve themselves in joint participation andconsultation. There is no suggestion that clause wasengaged by anything doneor not done by the first appellant. There is no real suggestion that Dr Harveytook the action she didbecause of anything connected with clause 9. Insofar asclause 9 was the basis for the appellants’ 3rdand 4th claims, the claims had to fail.
239. Clause10 refers to an employee having the right to seek advice from an industrialorganisation in circumstances where a disputeor grievance arises and theemployee is aggrieved by a decision or action or failure to make a decision oraction or act in relationto matters that arise out of matters covered by theagreement. Pursuant to that agreement, an employee is entitled to approach thefirst appellant to discuss any workplace grievance to obtain the firstappellant’s advice in relation to how the matter orthe issue should beresolved. There was no evidence however that anyone sought the firstappellant’s advice in relation toany issue, including the issue which thefirst appellant raised in his publication in relation to documents which were tobe subjectto the audit.
240. Althoughthe first appellant’s evidence was that he had been approached by memberswho advised him that there were such documentsin existence, there was noevidence that those members approached him in a way that would have engagedclause 10 of the agreement.
241. Buteven more particularly, there is no evidence that Dr Harvey knew that anyone hadapproached the first appellant in circumstanceswhere clause 10 would have beenengaged. In those circumstances, there was simply no evidence to contradict DrHarvey’s ownevidence that she did not act for any of the reasons allegedin claims 3 or 4.

Conclusion

242. Iagree with the reasoning of the primary judge and the conclusions which hereached.
243. Theappeal should be dismissed.
     
     

Associate:

Dated:8 February 2011