FEDERAL COURT OF AUSTRALIA

Construction, Forestry, Maritime, Mining and Energy Union v Quirk [2023] FCAFC 163

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be allowed in part.

2.    The cross-appeal be dismissed.

3.    By 18 October 2023, the parties file and serve an agreed recalculation of damages and interest that should be ordered for each appellant in the respective proceeding below consistent with the concessions noted in the reasons of Katzmann J at [243] or, in the event of disagreement, the parties’ asserted calculations and submissions limited to 1 page in support of their respective contentions.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

RARES ACJ:

INTRODUCTION

1    I have had the considerable benefit of reading the separate reasons of Katzmann J and Colvin J and agree with them that the appeal must be allowed in part and cross-appeal must be dismissed so as to make the agreed variation of the damages that Katzmann J identifies at [243].

2    In approaching the unfocused plethora of issues that the parties raised both before the primary judge, whose cogent and clear reasons are, in my opinion, substantially correct, and the Full Court, the parties often ignored their obligation to advance the overarching purpose of the Court’s civil practice and procedure provisions, namely, to conduct the proceeding below and the appeal to facilitate the just resolution of this dispute in accordance with law as quickly, inexpensively and efficiently as possible embodied in ss 37M and 37N of the Federal Court of Australia Act 1976 (Cth) (Federal Court Act). I agree with Colvin J’s observations at [441]–‍[442] about the duties of counsel in the presentation of a party’s case at trial and on appeal.

3    In these reasons, I have adopted the abbreviations and issues that Katzmann J has used in her reasons.

THE ESSENTIAL FACTUAL CONTEXT

4    In essence, the primary judge found the following:

(a)    in removing each of Mr Quirk and Mr Miller from his elected office as an organiser, and thus terminating his employment, the Federal Union acted in breach of rule 11(a) because it denied him natural justice and, accordingly, each officer was wrongfully dismissed;

(b)    the substantial and operative reason for the decision of the Divisional Executive that found each of Mr Quirk and Mr Miller guilty of gross misbehaviour within the meaning of rule 11(a) and the establishment of the charges against each man under it was because the Divisional Executive perceived that each of Mr Quirk and Mr Miller had been disloyal by publicly denigrating the Union and had spoken about the Union to the media without permission;

(c)    that substantial and operative reason could not support a finding of gross misbehaviour under rule 11(a) because ss 141(1)(c)(iii) and 142(1)(c) of the Fair Work (Registered Organisations) Act 2009 (Cth) (FWRO Act) could not authorise a rule, or construction of a rule, that prohibited a person in the position of each of Mr Quirk and Mr Miller from expressing dissent from the way in which a registered organisation (such as the Union) was being managed and, by doing so, thereby engage in gross misbehaviour within the meaning of rule 11(a). That was because, if rule 11(a) so operated, it would impose conditions, obligations or restrictions that were oppressive, unreasonable or unjust, contrary to s 142(1)(c);

(d)    had the Union not acted unlawfully, both Mr Quirk and Mr Miller would have remained employed by the Federal Union up to the end of his elected term on 1 January 2017 in accordance with rule 38(b) but that, thereafter, neither man would have been re-elected as an organiser or (re)employed by the Federal or State Union under an ordinary contract of employment; and

(e)    on the evidence, each of Mr Quirk and Mr Miller was entitled to damages for wrongful dismissal of $189,428.59.

PRINCIPLES GOVERNING APPELLATE REVIEW

5    An appeal by way of rehearing under provisions such as the Federal Court Act, ordinarily, must proceed in accordance with the following principles:

(a)    the substantial issues between the parties are settled at the trial and the powers of the appellate court to amend the pleadings in the court below must be exercised with this principle in mind: Coulton v Holcombe (1986) 162 CLR 1 at 7 per Gibbs CJ, Wilson, Brennan and Dawson JJ;

(b)    the appeal is against one or more orders made by the court below and the appellant must show that that court erred in making the relevant order or orders: AZC20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 26; (2023) 97 ALJR 674 at [34] per Kiefel CJ, Gordon and Steward JJ, with whom Edelman J agreed at [61], citing, among others, Lee v Lee (2019) 266 CLR 129 at 148–149 [55] per Bell, Gageler, Nettle and Edelman JJ and Victorian Stevedoring and General Contracting Co Pty Ltd v Dignan (1931) 46 CLR 73 at 109 per Dixon J; see too Attorney-General v Sillem (1864) 10 HLC 704 at 724; 11 ER 1200 at 1209 per Lord Westbury LC; and

(c)    a trial judge’s factual findings that are likely to have been affected by impressions about the credibility and reliability of witnesses whom he or she has seen and heard will only be set aside if “glaringly improbable” or “contrary to compelling inferences”: Lee 266 CLR at 148–149 [55] citing Fox v Percy (2003) 214 CLR 118 at 128 [29] per Gleeson CJ, Gummow and Kirby JJ and Robinson Helicopter Co Inc v McDermott (2016) 90 ALJR 679 at 687 [43]; 331 ALR 550 at 558–559 per French CJ, Bell, Keane, Nettle and Gordon JJ.

CONSIDERATION

The rules case

Issues 3 and 4

6    As each of Katzmann J and Colvin J have found, the primary judge was correct in holding that the Union did not comply with rule 11(a)(ii)(c) because it did not afford either Mr Quirk or Mr Miller with the opportunity to be present at a hearing of the charges against him and of being heard in his own defence, including an opportunity to cross-examine as well as to give and call evidence.

Issue 5

7    The Union’s reliance on the availability under the rules of an appeal from the Divisional Executive’s decision to remove Mr Quirk and Mr Miller from their offices, as a cure for any denial of procedural fairness in the Executive arriving at that decision, was misconceived.

8    First, the mere existence of an unexercised right to appeal under the rules cannot cure a decision that is otherwise invalid. Of course, the existence of the right to an internal appeal under the rules may provide a matter that a court can take into account in considering whether to grant relief against an otherwise invalid decision. However, the rules did not confer any different status on a purported decision of the Divisional Executive that was invalid, for failure to comply with them or the principles of natural justice or procedural fairness, depending on whether or not the person adversely affected chose to exercise natural justice or a right of appeal. As Mason J said in Twist v Randwick Municipal Council (1976) 136 CLR 106 at 116:

the earlier cases should not be regarded as deciding that the presence of an appeal to another administrative body is an absolute answer to a departure from natural justice or the standard of fairness. The existence of such an appeal does not demonstrate in itself that the inferior tribunal is at liberty to deny a hearing. But if the right of appeal is exercised and the appellate authority acts fairly and does not depart from natural justice the appeal may then be said to have “cured” a defect in natural justice or fairness which occurred at first instance.

(emphasis added) 

9    Secondly, the relevant principle is that where an appeal lies from the initial invalid decision and the person affected exercises the right to appeal, that, ordinarily, is taken to be an act that affirms the validity of the decision and seeks to have it overturned through the appellate process: Twist 136 CLR at 115–116; Ridge v Baldwin [1964] AC 40 at 79 per Lord Reid; Calvin v Carr [1980] AC 574 at 595B–C; [1979] 1 NSWLR 1 at 13B–C per Lord Wilberforce, giving the opinion of the Judicial Committee (Viscount Dilhorne, Lords Hailsham of St Marylebone, Keith of Kinkel, Scarman and himself).

10    In Australian Workers’ Union v Bowen [No 2] (1948) 77 CLR 601 at 631–632, Dixon J, with whom Starke J and, on this issue, Rich J agreed (at 619), said of the consequences of appealing or not under such a rule:

from these decisions six of them appealed to the convention. By so appealing they treated the expulsion, not as regular, but as having an operation under the rules and as proceedings to be reviewed, and, if the convention thought fit, corrected by the convention. The convention had complete authority over the whole question of expulsion, and it was for it to decide whether the findings and the dismissals from membership should be set aside, varied or confirmed. The convention confirmed them.

(emphasis added)

11    Because the convention of the union, as the appellate body, did not deal with one of the members adversely affected, Mr Renwick, Dixon J held (at 632) that his expulsion by the council (ie. the initial internal union decision-‍maker) was invalid and was not cured by the unexercised right to appeal.

12    As Lord Wilberforce held in Calvin [1980] AC at 592–593; [1979] 1 NSWLR at 11, trade union cases fall into a category of case in which the right to appeal to another organ of the union should not foreclose the ability of a member or officer who has been denied a fair trial from going directly to a court for relief. Their Lordships said that, in trade union cases, “movement solidarity and dislike of the rebel, or renegade, may make it difficult for appeals to be conducted in an atmosphere of detached impartiality and so make a fair trial at the first – probably branch – level an essential condition of justice”. They approved the following statement of principle by Megarry J in Leary v National Union of Vehicle Builders [1971] Ch 34 at 49, at least in its application to a trade union case:

If the rules and the law combine to give the member the right to a fair trial and the right of appeal, why should he be told that he ought to be satisfied with an unjust trial and a fair appeal? … As a general rule … I hold that a failure of natural justice in the trial body cannot be cured by a sufficiency of natural justice in an appellate body.

13    The Privy Council concluded ([1980] AC at 596; [1979] 1 NSWLR at 14), after examining and applying Bowen 77 CLR 601, that there is no automatic rule that the availability of an internal appeal will cure a denial of natural justice by the initial decision-making body in a trade union case or in another domestic or statutory tribunal. Here, as the primary judge observed (at [329]):

In my view, it is clear that the Divisional Executive did not remove Mr Quirk and Mr Miller because of their politics. It removed them because of the disloyalty perceived in Mr Quirk and Mr Miller’s highly public denigration of the Federal Union and their decision to speak without permission to the media. My overall and strong impression of the evidence of the members of the Divisional Executive is that the Federal Union is almost tribal in nature and that within its ranks loyalty is the cardinal value above almost everything else. Mr Quirk and Mr Miller’s sin was to transgress that cardinal value in the national media during the moment of the Federal Union’s greatest peril. I do not think that their politics entered into the equation.

(emphasis added)

14    That finding reinforces the appositeness of Lord Wilberforce’s reasoning that the existence of a right of appeal is not a cure all for a breach of natural justice in a trade union case (Calvin [1980] AC at 592–593; [1979] 1 NSWLR at 11), although, if exercised, as in Bowen 77 CLR 601, it may do so. That did not occur here. Mr Quirk and Mr Miller, no doubt mindful of the tribal nature of the Federal Union, exercised their rights under ss 163–164B of the FWRO Act to seek an impartial hearing in the Court rather than take the chance of getting one on an internal appeal.

15    For these reasons, Mr Quirk and Mr Miller were entitled to bring their proceedings below without having to pursue an appeal under the Union’s rules.

Issues 6 and 9

16    Rule 49(a) expressly provided that a member of the Union who had been elected to any full-‍time position (such as an organiser) “shall be employed full time in the service of the Divisional Branch” and be paid a weekly wage as determined by that branch but not less than a specified benchmark. The fact that, up to the commencement of their elected four-year term of office on 2 January 2013, each of Mr Quirk and Mr Miller was a full-time employed delegate did not mean that they remained employed on the earlier contract of employment after they assumed their elected offices.

17    In Concut Pty Ltd v Worrell (2000) 176 ALR 693 at 698–699 [18]–[19], Gleeson CJ, Gaudron and Gummow JJ analysed how to ascertain the intention of parties to an employment relationship when new terms, such as a promotion, change of position or increase in wages or salary, are introduced. As with other issues of contractual formation, their Honours held that whether such a change amounts to a variation of the existing contract of employment or its replacement is ascertained objectively in all of the circumstances. In substance, the question is whether, appreciating its commercial (or employment) purpose, a reasonable person in the position of the parties, aware of its genesis, background, context and the market or relationship in which the parties are operating, would have understood that the parties intended to make a contract that either varied, in one or more particular respects, the existing agreement or supplemented it entirely with a new agreement that would govern their relationship for the future: Concut 176 ALR at 698–699 [19]; Federal Commissioner of Taxation v Sara Lee Household & Body Care (Australia) Pty Ltd (2000) 201 CLR 520 at 533 [22] per Gleeson CJ, Gaudron, McHugh and Hayne JJ; Royal Botanic Gardens and Domain Trust v South Sydney City Council (2002) 240 CLR 45 at 52–53 [10] per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ; Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165 at 178–180 [38]–[41] per Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ; Cohen v iSoft Group Pty Ltd (2013) 298 ALR 516 at 526–527 [35]–[38] per Rares, Cowdroy and Kerr JJ.

18    Here, by standing for election, each of Mr Quirk and Mr Miller manifested, objectively, that, if elected, he wanted to change his relationship to the Union as his employer. That is because rules 38(b) and 49(a) created the minimum terms of employment of an elected office in the Union. Rule 38(b) provided (consistently with the requirement in s 145(1) of the FWRO Act) that the term of elected office, including for an organiser, was for a continuous period of four years commencing on 2 January in the year following the election and rule 49(a) provided the minimum remuneration for such an elected officeholder.

19    The source of the Union’s obligation to employ each of Mr Quirk and Mr Miller changed on 2 January 2013 from the earlier voluntary assumption of contractual relations to the new stipulation by the members voting them into the office of an organiser for a four-year term subject to any further election result. Objectively, the rules were intended to set out how a person elected to a full-time office would be employed, his or her term of office, minimum remuneration, duties and how removal from office could occur. Those rules had contractual force as between members and supplanted any earlier contract of employment. Both men went from their previous contract of employment, with an indeterminate duration, to an elected office with a fixed four-year term that did not provide (contrary to the unsupported assertion in Mr Quirk’s and Mr Miller’s argument) for their previous employment to revive or continue at the expiration of the four-year term under rule 38(b) as if nothing had happened.

20    I agree with Colvin J, in his resolution of issues 6 and 9, that the Union failed to prove that, if, instead of proceeding as it did on 17 April 2015, and immediately applying its decisions to remove each of Mr Quirk and Mr Miller from office, it had afforded each of them natural justice, nonetheless, it would have terminated their employment lawfully before 1 January 2017 when it expired at the conclusion of their four-year term of office in accordance with rule 38(b) and s 145(1) of the FWRO Act.

Issues 1 and 2

21    As a result of the last conclusion, it is not necessary to decide whether the allegations in the charges against each of Mr Quirk and Mr Miller could have constituted gross misbehaviour under rule 11(a) or whether, properly characterised, as the primary judge found, they constituted, impermissibly by force of s 142(1)(c) of the FWRO Act, charges of dissent.

22    If I had to decide that issue, like Katzmann J, I would have upheld his Honour’s conclusion and reasoning that the Union could not impose a lawful requirement, in its new code of conduct or otherwise, that prohibited an elected officer from communicating his or her views to the media or anyone else.

23    Each of the charges against Mr Quirk and Mr Miller, that Katzmann J has set out in [59] and [60] of her reasons, alleged that each official had made statements to the media, without its authorisation, that were false and damaging to the Union. Notably, none of the allegations in the charges stated that either official knew that, when he published to the media, what he said was false. While the charges purported to set out matters rebutting the accuracy of each impugned statement, they did not particularise that either Mr Quirk or Mr Miller knew, first, of any of those matters when he spoke to the media or, secondly, that if he did know of any of those asserted facts, that it also had the consequence that what he said was not true.

24    The Union submitted that an official who made a knowingly false statement to the media that was damaging to it could be found to have engaged in gross misbehaviour under rule 11(a). But, even if that were so (and it is not necessary to decide), the charges alleged only that the statements that Mr Quirk and Mr Miller had made were wrong. The charges did not go so far as to make the more serious allegation that each official knew that what he said to the media was false.

25    Unlike rule 11(a) in this case, in Bowen 77 CLR 601, the union’s relevant rules empowered its executive council to expel a member who, in its opinion, was guilty of misconduct. Latham CJ observed (at 606) that, because the rule left the formation of the opinion to the executive council, the only question for the court was whether it had formed that opinion in good faith. But, the Chief Justice held that, if the rule had not been so conditioned, it was arguable that the issue could be examined independently by the court (at 606, 609). Rich J (at 618) agreed and Williams J applied the same process of reasoning (at 634). Starke J (at 619) agreed with Dixon J, who also emphasised the importance that the relevant rule required the executive council to form its opinion in good faith as to whether the conduct charged amounted to misconduct (at 629).

26    Another point of distinction is that, in Bowen 77 CLR 601, the High Court was not required to deal with the application of a statutory constraint on the rule-making power of the union such as that now found in s 142(1)(c) of the FWRO Act. Unlike in Bowen 77 CLR 601, the rule-‍making power in s 141(1)(c)(iii) of the FWRO Act and rule 11(a) itself do not require the Divisional Executive to form an opinion (as distinct from finding as a fact) that what was charged constituted gross misbehaviour. Rather, the statutory power, and rule 11(a), require that, in order to be authorised to remove an elected officer, the Divisional Executive has to find an objective basis, and do so honestly (or in good faith), that what Mr Quirk and Mr Miller was charged with actually occurred as alleged and that it constituted gross misbehaviour.

27    It is necessary that conduct the subject of a charge (or allegation) is capable of being characterised as gross misbehaviour within the meaning of s 141(1)(c)(iii), or a rule (such as rule 11(a)) made pursuant to that power, before a registered organisation can remove a person elected to an office. That is because Ch 5 of the FWRO Act, in which ss 141 and 142 are found in Pt 2, also includes, in Pt 3, ss 163–164B. Part 3 of Ch 5 confers jurisdiction on this Court, on the application of a member, first, to declare that the whole or part of a rule contravenes s 142 in a particular respect (s 163(2)), secondly, to make an order giving directions for the performance or observance of any of the organisation’s rules by any person (s 164(1)) and, thirdly, to make an order directing a person to do specified things, so far as reasonably practicable, that would place the organisation in the position it would have been had the breach of the rule not occurred (even if the applicant is not a member at the time of the order) (s 164A(4)).

28    The concept of ‘gross misbehaviour’ and ‘gross neglect of duty’ that s 141(1)(c)(iii) of the FWRO Act enables a registered organisation to utilise in a rule, such as rule 11(a) of the Union’s rules, as a ground for removal of an elected official from office cannot authorise a rule, or charge proffered under a rule, that, first, prohibits the official speaking or communicating with others, including the media, without authorisation or, secondly, if he or she does speak or communicate with the media or others, he or she must be accurate and not say anything false to the person’s knowledge about, or damaging to, the Union. Such a rule or charge would be oppressive, unreasonable or unjust and so beyond the power conferred under ss 141(1)(c)(iii) and 142(1)(c) in accordance with the decisions in Wiseman v Professional Radio and Electronics Institute of Australasia (1978) 20 ALR 545 at 555–556 per Evatt and Northrop JJ and McPaul v Williams (1990) 34 IR 288 at 294 per Gray J (which Katzmann J has quoted in her reasons at [171] and [173]). It would also be antithetic to the Parliament’s intention in enacting the FWRO Act, as expressed in s 5. In particular, the Parliament stated its intention in s 5(3)(a)–(d) that the FWRO Act would set standards that Katzmann J has set out at [177] of her reasons which, among other matters, as s 5(3)(d) states, provide for the democratic functioning and control of registered organisations.

29    The primary judge correctly characterised the conduct of Mr Quirk and Mr Miller complained of in the charges as dissent over the way in which the Federal Union was being conducted. His Honour found that, to the extent that each of the charges, the new code of conduct and rule 11(a) purported to proscribe democratic dissent over the way in which the Federal Union was being run, it was oppressive, unreasonable or unjust because, having regard to the intentions of the Parliament stated in s 5 of the FWRO Act and the objects of both that Act and the Fair Work Act 2009 (Cth) (Fair Work Act), it would impose on members of the Union conditions, obligations or restrictions in contravention of the general requirements of rules mandated by s 142(1)(c) of the FWRO Act.

30    In forming and expressing views or opinions, and communicating information, members of our society do not necessarily do so with the precision or accuracy of a mathematical proof or a philosopher or logician. Moreover, when a member of a body perceives that its affairs are being conducted inappropriately, he or she may need to speak out, without adhering to rules of debate set by those whose actions he or she is calling into question. Such a person, also, may not have full information, may leap to a conclusion that, on cooler reflection, others may not express, may misinterpret what occurred, may be more or less correct but include some erroneous matter in the whole of what is said or may even be biased against whom or what he or she is criticising. And, it is not uncommon in political debate focused on questioning the exercise of power by those in or seeking control of a body, such as a registered organisation like a union, as in other areas of political discourse, to employ polemical propositions. Those subject to polemical attacks are often prone to finding the language offensive, sometimes disloyal to the cause concerned, and the context inaccurate, if not downright untrue. Not infrequently, each side gives as good as it gets.

31    An analogous situation can arise in the law of defamation, particularly in the consideration of a defence of qualified privilege. That can provide a defence to the publication of false matter about the plaintiff, including, for example, for a defendant who makes or repeats a statement that is false.

32    In Horrocks v Lowe [1975] AC 135 at 150B–E, Lord Diplock explained (with the agreement of Lords Wilberforce, Hodson and Kilbrandon) the rationale for the common law defence of qualified privilege to an action in defamation, albeit that this was in another context, but which is nonetheless relevantly apposite here. In Roberts v Bass (2002) 212 CLR 1, each of Gleeson CJ (at 14 [15] and see too at 17–18 [28] and 18 [31]–[32]) and Gaudron, McHugh and Gummow JJ (with whom Kirby J (at 66–67 [185]) agreed on the issue of malice in respect of the implied constitutional freedom of communication on government and political matter at common law) cited with approval the following passage from Lord Diplock’s speech (and see too at 35 [86], 38 [96] and 41 [103]):

If [a person] publishes untrue defamatory matter recklessly, without considering or caring whether it be true or not, he is in this, as in other branches of the law, treated as if he knew it to be false. But indifference to the truth of what he publishes is not to be equated with carelessness, impulsiveness or irrationality in arriving at a positive belief that it is true. The freedom of speech protected by the law of qualified privilege may be availed of by all sorts and conditions of men. In affording to them immunity from suit if they have acted in good faith in compliance with a legal or moral duty or in protection of a legitimate interest the law must take them as it finds them. In ordinary life it is rare indeed for people to form their beliefs by a process of logical deduction from facts ascertained by a rigorous search for all available evidence and a judicious assessment of its probative value. In greater or in less degree according to their temperaments, their training, their intelligence, they are swayed by prejudice, rely on intuition instead of reasoning, leap to conclusions on inadequate evidence and fail to recognise the cogency of material which might

cast doubt on the validity of the conclusions they reach. But despite the imperfection of the mental process by which the belief is arrived at it may still be “honest,” that is, a positive belief that the conclusions they have reached are true. The law demands no more.

(emphasis added)

33    As Gaudron, McHugh and Gummow JJ recognised in Roberts 212 CLR at 43 [108] and 46 [115], a person’s carelessness or a failure to check material to find an independent basis for one’s belief or impulsiveness, jumping to a conclusion from inadequate material or illogical reasoning is not a proper basis to infer that the person knew that what he or she said was untrue or that he or she was recklessly indifferent as to whether it was true or not.

34    For these reasons and those given by both the primary judge and Katzmann J, the charges against each of Mr Quirk and Mr Miller could not be proffered under rule 11(a) because they alleged no more than dissent and, even if proved, could not constitute gross misbehaviour within the rule-making power conferred in ss 141(1)(c)(iii) and 142(1)(c) of the FWRO Act.

Issue 2A

35    In obiter dicta, the primary judge went onto consider whether it was open to the Divisional Executive to find that any of the particulars of each charge against Mr Quirk and Mr Miller was established, applying the alternative standards of review that his Honour drew from Bowen 77 CLR 601 and Minister for Immigration and Citizenship v Li (2013) 249 CLR 332.

36    It is not necessary to deal with that issue because his Honour was correct to find that the charges impermissibly alleged dissent and, in my opinion, for the reasons above, the charges did not allege that either official had said anything that he knew was false or about which he was recklessly indifferent as to its truth or falsity.

Issues 7, 8 and 10

37    I agree with Colvin J’s reasons (at [475]–[481]) that these issues have no merit. I agree with Katzmann J at [243] that the damages that the primary judge awarded need to be reduced by relatively small amounts on the basis of the concessions that each of Mr Quirk and Mr Miller made during the appeal.

The adverse action case

Issues 13–18 and 22

38    I agree with Katzmann J’s reasons in respect of issues 13–17 and 22. I agree with Colvin J’s reasons in respect of issue 18.

Issues 11, 19 and 20

39    Each of Katzmann J and Colvin J has discussed the less than uniform approach which Full Courts and single judges in this Court adopted in the construction of s 341(1)(c)(ii) of the Fair Work Act prior to the decision in Qantas Airways Ltd v Transport Workers Union of Australia [2023] HCA 27, which was delivered after we reserved judgment in the appeal. We invited the parties to make submissions on the possible impact of this decision.

40    Mr Quirk, Mr Miller and the Union agreed that the ratio in Qantas [2023] HCA 27 was not strictly relevant because it concerned the construction of s 340(1)(b) of the Fair Work Act. However, the Union argued that in Qantas [2023] HCA 27 at [26], Kiefel CJ, Gageler, Gleeson and Jagot JJ construed the expression “is able to” in s 341(1)(b) and (c) in a general way without considering, or needing to consider, whether there had to be a source for the ability to make a complaint or inquiry or what its nature could be. The Union contended that, in any event, the primary judge was correct to find that, first, Mr Quirk’s and Mr Miller’s statements to the media were not “complaints” within the meaning of s 341(1)(c)(ii) and, secondly, the Divisional Executive had not acted to remove them from office because they had made complaints to the media.

41    As Katzmann J has explained at [321], neither Mr Quirk nor Mr Miller pleaded at trial any relevant workplace right or entitlement. Her Honour quoted the primary judge’s distillation of the three bases on which they put their argument that the Union had taken adverse action because of their exercise of a workplace right. The primary judge rejected each of those bases because he held, following the reasoning of Rangiah and Charlesworth JJ in PIA Mortgage Services Pty Ltd v King (2020) 274 FCR 225 at 229–230 [11]–[13], that Mr Quirk and Mr Miller had to “identify an entitlement or right conferred upon them by something to take the steps that they did” (emphasis in original).

42    Despite counsel for Mr Quirk and Mr Miller also being counsel in the Full Court in Alam v National Australia Bank Ltd (2021) 288 FCR 301, and that decision being published after the primary judge had reserved his decision, neither side drew Alam 288 FCR 301 to his Honour’s attention. That failure was unsatisfactory given the different approach to the construction of s 341(1)(c)(ii) that the later Full Court decided in Alam 288 FCR 301. Although in Qantas [2023] HCA 27, the reasons of Kiefel CJ, Gageler, Gleeson and Jagot JJ (at [36], [41]), as well as those of Steward J (at [116]), referred to Alam 288 FCR 301, PIA 274 FCR 225 and other decisions in this Court concerning the construction of s 341(1)(c)(ii), their Honours did not, or need to, resolve the differences between them.

43    Rather, Kiefel CJ, Gageler, Gleeson and Jagot JJ held that the role of s 341 in the Fair Work Act is not to define but to identify, as a matter of substance, that a person has a workplace right in the circumstances that the provision specifies: Qantas [2023] HCA 27 at [32], [47] (and see too at [79]‍–[81] per Gordon and Edelman JJ). The plurality held (at [36]) that the words “is able to” in s 341(1)(b) and (c) are not words of limitation but rather operate when “circumstances have come into existence in which the person has a present capacity to exercise a relevant power or freedom” that each of s 341(1)(b) (when read with s 341(2)) and s 341(1)(c) specifically identify. Thus, a workplace right to make a complaint or inquiry under s 341(1)(c) can, and ordinarily will, come into existence only when circumstances have arisen in the course of the employment relationship that then gives the person the present capacity to exercise the power or freedom to make the relevant complaint or inquiry: Qantas [2023] HCA 27 at [36]–‍[37], [47].

44    Steward J construed (at [116]) s 341(1)(c) to mean that the ability to make a complaint had to be underpinned by some present, actually held, entitlement or right as held in Shea v TRUenergy Services Pty Ltd [No 6] (2014) 314 ALR 346 at 440 [625] per Dodds-Streeton J, as applied in Cigarette & Gift Warehouse Pty Ltd v Whelan (2019) 268 FCR 46 at 55–56 [28] per Greenwood, Logan and Derrington JJ. However, contrary to the reasoning of the other justices, Steward J went on to hold that s 341 is a definitional section: Qantas [2023] HCA 27 at [121].

45    Here, the primary judge identified Mr Quirk’s and Mr Miller’s case under s 341(1)(c)(ii) of the Fair Work Act as being that they claimed to have exercised a workplace right to complain (or whistleblow) to the media “in relation to [their] employment”. They identified to his Honour, and repeated on appeal, three asserted bases for a workplace right to make such a complaint, namely, what they said were, first, breaches of the Federal Union’s conflicts of interests policy, its personal gifts and benefits policy, its bullying procedures and cl 34 of its enterprise agreements, secondly, allegations of breaches of the criminal law relating to corruption and, thirdly, exercises of their right to represent and communicate with the Union’s members pursuant to their election to office. They asserted that the workplace right to make a complaint or inquiry in relation to their employment did not need to be exercised by directing the complaint or inquiry to anyone who could do something about it.

46    Ordinarily, the principle which Holt LCJ famously applied (in Ashby v White (1703) 2 Ld Raym 938 at 953; 92 ER 126 at 136) encapsulates the need for a connection between a legal entitlement (such as a workplace right) and the consequence of its assertion or pursuit. The Lord Chief Justice said:

If the plaintiff has a right, he must of necessity have a means to vindicate and maintain it, and a remedy if he is injured in the exercise or enjoyment of it; and indeed it is a vain thing to imagine a right without a remedy; for want of right and want of remedy are reciprocal.

(footnotes omitted)

47    The right to freedom of speech or expression is not a freestanding workplace right. That right is one enjoyed and exercisable by every member of our society subject to only such constraints as are imposed by law consistently with the implied constitutional freedom of communication on government and political matter (which is a restriction on legislative power). Mr Quirk and Mr Miller did not plead or otherwise explain at the trial or on appeal how they alleged that this well-known human right somehow became, morphed into or acquired a new character as a workplace right within the meaning of s 341(1)(c)(ii) of the Fair Work Act that each man could enforce against his employer, the Union. Their argument as put, that they had a workplace right to make a complaint in relation to their employment to the media, lacked any coherent explanation.

48    However, Mr Quirk and Mr Miller did not plead or argue that the Union took adverse action against them under s 340(1)(a) and item 7(b) in the table to s 342(1) of the Fair Work Act by finding that they were guilty of gross misbehaviour under rule 11(a) and, on that basis, terminating their employment because they had exercised their workplace right as elected officers to make a complaint that was sourced in, or in accordance with, the rules and the FWRO Act by expressing dissent against the way in which the Union was being run. The source of such a workplace right arguably may have been found in the FWRO Act’s intention to stipulate provisions for the democratic functioning and control of a registered organisation, such as the Union, and its proscription in s 142(1)(c) of antithetical conditions, obligations or restrictions on its members, having regard to the Parliament’s intention to achieve that end in enacting the Act and its and the Fair Work Act’s objects. The findings that the charges of gross misbehaviour were proved and the removal from elected, full-time office as employed organisers, with its concomitant terminations of employment, entailed that the Union had taken that adverse action against Mr Quirk and Mr Miller, both as members and elected employees (by reason of their membership), because they spoke out as they chose against the way in which the Union was being run.

49    Given that this was a case run on pleadings and in which Mr Quirk and Mr Miller sought pecuniary penalties against the Union for its alleged contraventions of s 340(1)(a) and items 1(a)–(d) and 7(b) and (d) in the table to s 342(1) of the Fair Work Act, it would not now be appropriate, on appeal, to allow them to reformulate their case: Coulton 162 CLR at 7.

50    For these reasons, I agree with Katzman J and Colvin J that Mr Quirk and Mr Miller failed to establish any error in the primary judge’s rejection of their adverse action claim.

CONCLUSION

51    Accordingly, both the appeal and cross-appeal substantively fail. No application for costs was made and neither side identified a matter enlivening the powers of the Court to award costs in s 570 of the Fair Work Act or s 329 of the FWRO Act. There should be no orders as to costs.

Associate:

Dated:    11 October 2023

REASONS FOR JUDGMENT

KATZMANN J:

INTRODUCTION

52    This proceeding arises out of two judgments in three separate proceedings heard together in 2020 in difficult circumstances caused by the COVID-19 pandemic. In the first, the primary judge held that the appellant, the Construction, Forestry, Maritime, Mining and Energy Union, generally referred to by the initialism CFMMEU, was liable to pay damages for breach of contract to the respondents, two former union organisers named Andrew Quirk and Brian Miller: Quirk v Construction, Forestry, Maritime, Mining and Energy Union [2021] FCA 1587 (principal judgment or PJ). His Honour later ordered the CFMMEU to pay each of them $189,428.59 plus interest. In the second, his Honour declined to make an award of costs: Quirk v Construction, Forestry, Maritime, Mining and Energy Union [2022] FCA 53 (costs judgment). To some extent, all the parties were dissatisfied with the judgments and the consequential orders. The CFMMEU appealed, Mr Quirk and Mr Miller cross-appealed, and both sides raised points of contention.

BACKGROUND

53    Mr Quirk and Mr Miller are former employees and elected officials of the Construction and General Division (C&G Division) of the CFMMEU. Mr Quirk began working for the Federal Union in 2003. Mr Miller was employed in 1988 by the Building Workers and Industrial Union (BWIU), later the Construction, Forestry, Mining and Energy Union (CFMEU) and, later still, the CFMMEU.

54    Mr Quirk was first elected as a Divisional Branch Organiser of the CFMMEU in 2008. He was re-elected on 11 October 2012. Mr Miller was first elected to the same position in 2000 and re-elected in 2012. Both were elected for four year terms, the most recent of which commenced on 2 January 2013. Accordingly, in the ordinary course of events, they would have remained in office until midnight on 1 January 2017. On 17 April 2015, however, after making unauthorised comments to the media which were highly critical of the management of the CFMMEU Mr Quirk and Mr Miller were removed from office and their employment came to an abrupt end. Charges of gross misbehaviour, contrary to rule 11 of the rules governing the C&G Division (Divisional Rules or Rules), were brought against them and at a meeting that day the Divisional Executive found them to be guilty as charged. The determinations were made in their absence, after their request for an adjournment of the hearing of the charges was denied. Ten days later, on 27 April 2015, they were informed that, as a consequence of their removal from office, their employment was at an end.

55    Mr Miller and Mr Quirk each filed proceedings in the Federal Circuit Court of Australia (now the Federal Circuit and Family Court of Australia (Division 2)) against the CFMEU NSW Branch, a State-registered industrial organisation, seeking remedies for adverse action allegedly taken in contravention of various provisions of the Fair Work Act 2009 (FW Act). Later, Mr Quirk and Mr Miller filed proceedings in this Court against the CFMMEU and the members of the Divisional Executive seeking various forms of relief, including, amongst other things, orders for their reinstatement (later withdrawn) and declarations that rule 11 was (in effect) beyond power and unconstitutional in that it was “contrary to the implied freedom of political communication” (NSD 1344 of 2017) (the rules proceeding). The Federal Circuit Court proceedings were transferred to this Court (becoming NSD 1027 of 2018 and NSD 1028 of 2018) (the adverse actions proceedings). On 31 January 2019 the primary judge granted leave to Mr Quirk and Mr Miller to amend the name of the respondents in the adverse action proceedings to the CFMMEU and to add the CFMEU NSW Branch as a second respondent to each of those proceedings. Statements of claim were later filed, which also expanded the claims made in the adverse action proceedings to include claims for breach of contract and breaches of the CFMEU Enterprise Agreement between the State Union’s C&G Division and the officers of that Division.

56    From now on, I shall refer to the CFMMEU as the Federal Union and the CFMEU NSW Branch as the State Union unless it is unnecessary to distinguish between the two, in which case I shall use the term Union or Unions for convenience.

57    At trial, after some preliminary skirmishing, the parties agreed that at all relevant times Mr Quirk and Mr Miller were jointly employed by both the Federal Union and the State Union (PJ [7]-[10]). When judgment was published on 17 December 2021, the primary judge ordered the parties to confer and submit agreed short minutes of order giving effect to his reasons. The orders were made on 27 January 2022 but only against the Federal Union.

58    The evidence disclosed that, after remarks Mr Quirk made to a journalist were published in the Sydney Morning Herald (SMH) on 16 October 2014 and Mr Quirk and Mr Miller appeared on the Australian Broadcasting Corporation (ABC)’s 7.30 program the same day, they were each summoned to appear before the Federal Union’s Divisional Executive on 18 November 2014 to answer the charges.

59    The charge against Mr Quirk was in the following terms:

On 16 October 2014 Andrew Quirk who is a Divisional Branch Officer in the NSW Branch acted in a manner that amounts to gross misbehaviour.

Particulars:

a)    On 16 October 2014 Mr Quirk appeared on the ABC 7.30 program without authorisation of the union and purported to speak as a union officer about matters relating to the union. During that appearance he made comments which were false and/or adverse to the union.

b)    During his appearance on the ABC 7.30 program on 16 October 2014 Mr Quirk falsely stated that the union had been silent about reports of corruption, association with murderers, association with gangsters, association with terrorists, money being paid to union officials, union officials being forced out of their jobs and their careers. The union has not been silent on such reports. The union has inquired into those reports, deliberated upon them at a number of levels and made public statements about them.

Mr Quirk’s public statement that the union had been silent about those reports was false and it was damaging to the union.

c)    During his appearance on the ABC 7.30 program on 16 October 2014 Mr Quirk falsely stated that the union had done nothing about arrears associated with the George Alex companies. The union did not do nothing about those arrears. The NSW Branch recovered over $1.6 million in arrears from companies associated with Mr Alex in the period May 2012 to August 2014.

Mr Quirk’s public statement that the union had done nothing to recover worker’s [sic] entitlements was false and it was damaging to the union.

d)    During his appearance on the ABC 7.30 program on 16 October 2014 Mr Quirk made adverse comment about the National Secretary by falsely stating that the terms of reference of the National Office Inquiry into allegations made by Mr Quirk about the NSW Branch in October 2013 failed to include an allegation that the National Office had contributed to the matters the subject of investigation. The terms of reference of the investigation did include Mr Quirk’s allegation about the involvement of the National Office.

Mr Quirk’s public statement that the National Secretary failed to investigate his allegation about the National office was false and it was damaging to the National Secretary and the union.

e)    During his appearance on the ABC 7.30 program on 16 October 2014 Mr Quirk made false claims about other Officers and employees of the union stating that he went to work every day and dealt with experienced thugs who were sizing him up to assault him.

Mr Quirk’s public statement that the union officers and employees he worked with were experienced thugs who wanted to assault him was false and damaging to those officers and employees and the union.

60    The charge against Mr Miller read as follows:

On or around 16 October 2014 Brian Miller who is a Divisional Branch Officer in the NSW Branch acted in a manner that amounts to gross misbehaviour.

Particulars:

a)    On or around 16 October 2014 Mr Miller spoke to a journalist at the Sydney Morning Herald and program [sic] without authorisation of the union and purported to speak as a union officer about matters relating to the union. Mr Miller is quoted in that article as saying:

i)    Figures in the union were protecting other people just to save their jobs instead of telling the truth.

ii)    That the union has a problem and it needs to fix it or the union is going to be decimated.

The statement that there are figures in the union not telling the truth to protect others is unsubstantiated, it is damaging to the union and it had not been raised within the union by Mr Miller before it was raised publicly.

The statement that the union has a problem, which it needs to fix or be decimated is not substantiated, it is damaging to the union and it had not been raised within the union by Mr Miller before it was raised publicly.

b)    On 16 October 2014 Mr Miller appeared on the ABC 7.30 program without authorisation of the union and purported to speak as a union officer about matters relating to the union. During that appearance he made comments which were false and/or adverse to the union. During that appearance Mr Miller:

i)    Falsely alleged that the union was trying to get rid of Mr Quirk for supporting Mr Fitzpatrick.

ii)    Falsely alleged that Mr Quirk was being mistreated by the union.

iii)    Alleged that he had been mistreated by the union.

Mr Miller’s allegations had not been raised by him within the union before he appeared on national television. The allegations were damaging to the union.

61    Mr Quirk and Mr Miller attended the meeting but, after submitting that they were not then in a position to answer the charges, they left. The Divisional Executive adjourned consideration of the matter to 5 December 2014. A few days earlier, solicitors for Mr Quirk and Mr Miller wrote separately to the Federal Union indicating that they were unfit to attend the meeting, and attached medical evidence. In his reply the national secretary of the C&G Division, David Noonan, disputed the unfitness of each of them. Nonetheless, he agreed to adjourn the hearing until the next meeting of the Divisional Executive, scheduled to begin on 17 March 2015 (which he later extended to 17 April 2015). Both Mr Quirk and Mr Miller sought another adjournment around 15 April 2015 on the basis that they were unfit to attend the meeting. On 17 April 2015 the Divisional Executive met in their absence, determined not to grant their request for an adjournment because of perceived inconsistencies in their medical evidence, and found that each of them was guilty of gross misbehaviour and should be removed from office forthwith.

62    On 20 April 2015 the Federal Union wrote separately to Mr Quirk and Mr Miller informing them of the Divisional Executive’s actions and their appeal rights, enclosing a copy of rule 11, and asking them to return all Federal Union property in their possession as soon as possible. The letters did not purport to terminate their contracts of employment. But a week later, on 27 April 2015, they received a second letter informing them that a consequence of their removal from office was that their employment with the State Union ceased on the same date.

63    The primary judge did not declare rule 11 to be invalid. Rather, his Honour held that on its proper construction rule 11 did not authorise their removal from office and that the Federal Union did not comply with the obligation in rule 11 to give them an opportunity to defend themselves. He also held that their removal could not be justified on the ground that they had breached the Federal Union’s code of conduct.

64    His Honour held that the purported removal of Mr Quirk and Mr Miller by the Divisional Executive “brought about a chain of events leading to the end of the employment relationship” and constituted “adverse action” within the meaning of s 342(1) of the FW Act. Specifically, his Honour found that the Federal Union took adverse action within items 1 cll (a)–(c) and item 7 cl (b) of the table to the subsection, namely, by dismissing them, injuring them in their employment, by altering their positions to their prejudice, and by taking action that has the effect of prejudicing them in their employment. But his Honour dismissed their claims that the action was taken against them for one or more prohibited reasons, namely, that it was taken because they had exercised a workplace right, contrary to s 340(1); because they had engaged in industrial activity, contrary to s 346; and/or because of their political opinions, contrary to s 351. Nevertheless, his Honour held that they had been wrongfully dismissed by the Federal Union and were entitled to damages for breach of contract.

65    Damages were assessed on the counterfactual that, but for the wrongful dismissal, Mr Quirk and Mr Miller would have remained officers and employees until their four year terms expired at the end of 1 January 2017 at which point their employment would have ended. His Honour rejected the submission by the Unions that any award of damages should be reduced because they had received workers’ compensation payments and because of payments they received from the Australian Construction Industry Redundancy Trust.

66    When the principal judgment was published the primary judge ordered the parties to confer and agree upon the orders which would give effect to his reasons.

67    Then on 27 January 2022 the primary judge made the following orders:

1.    The Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) pay Mr Quirk an amount of $189,428.59.

2.    The CFMMEU pay Mr Quirk interest as agreed or, in the absence of agreement, as ordered by the Court on the application of a party.

3.    The CFMMEU pay Mr Miller an amount of $189,428.59.

4.    The CFMMEU pay Mr Miller interest as agreed or, in the absence of agreement, as ordered by the Court on the application of a party.

5.    The payments be made to Mr Quirk and Mr Miller within 28 days

6.    Orders 1 to 5 are stayed pending, with respect to any order, an appeal by a party that seeks to have the order varied or set aside, the stay being conditional on any such appeal being filed within 28 days after the date of this order and on orders 7 and 8 below.

7.    Order 6 is made conditional upon the amount of $189,428.59 being paid within 14 days after the date of this order, to the Trust Account of Taylor and Scott, Lawyers, to be held in trust for Mr Quirk, but released:

a.     to Mr Quirk if an appeal is not lodged within 28 days after the date of this order;

b.     to Mr Quirk in the event of the upholding of the obligation to pay that amount to him by the Court after the disposition of the appeal;

c.     to Mr Quirk in consequent part should the Court, on appeal, reduce the amount the CFMMEU is obliged to pay him;

d.     to the CFMMEU in consequent whole or part upon the upholding of any appeal by the CFMMEU whereby the obligation to pay that amount is reversed or reduced.

8.     Order 6 is made conditional upon the amount of $189,428.59 being paid within 14 days after the date of this order, to the Trust Account of Taylor and Scott, Lawyers, to be held in trust for Mr Miller, but released:

a.     to Mr Miller if an appeal is not lodged within 28 days after the date of this order;

b.     to Mr Miller in the event of the upholding of the obligation to pay that amount to him by the Court after the disposition of the appeal;

c.     to Mr Miller in consequent part should the Court, on appeal, reduce the amount the CFMMEU is obliged to pay him;

d.     to the CFMMEU in consequent whole or part upon the upholding of any appeal by the CFMMEU whereby the obligation to pay that amount is reversed or reduced.

9.    The applications in NSD1344/2017, NSD1027/2018 and NSD1028/2018 be otherwise dismissed.

68    It is apparent that no orders were made against the State Union.

69    The parties agreed that there should be no order as to costs in the adverse action claims. The primary judge rejected an application by Mr Quirk and Mr Miller for their costs in relation to the wrongful dismissal claim, holding that costs were precluded by s 329 of the Fair Work (Registered Organisations) Act 2009 (Cth) (FWRO Act).

THE REASONS OF THE PRIMARY JUDGE

The Rules case

70    There were three aspects to this case. The first was the claim that Mr Quirk and Mr Miller were denied procedural fairness when the Divisional Executive heard and determined the charges in their absence. The second was the claim that their conduct did not and could not amount to “gross misbehaviour” within the meaning of rule 11. The third was that rule 11 was invalid.

71    The primary judge dealt first with the claim of procedural unfairness or, more accurately, the claim that the Federal Union breached rule 11(a)(ii)(c) which required that Mr Quirk and Mr Miller be “afforded an opportunity of being present at the hearing and of being heard …”.

72    His Honour was not persuaded that there were inconsistencies in the medical evidence (at [63] and [78] in relation to Mr Quirk and Mr Miller respectively). While he accepted that the Divisional Executive was not obliged to adjourn the matter indefinitely, his Honour considered that the proper course would have been to require Mr Quirk and Mr Miller to attend an independent medical expert, a course “well-known” in disciplinary proceedings, but which the Divisional Executive did not consider (at [85]). For these reasons his Honour concluded that Mr Quirk and Mr Miller were denied a reasonable opportunity to be present at the hearing as required by rule 11(a)(ii) and that, consequently, the Divisional Executive breached rule 11 by proceeding to deal with the charges (at [86]).

73    The next question was whether the conduct of Mr Quirk and Mr Miller constituted “gross misbehaviour” within the meaning of rule 11.

74    In holding that it was not, the primary judge reasoned that the rules of the C&G Division could not lawfully prohibit a member from expressing dissent about the manner in which the Federal Union was being managed; that if rule 11 authorised their removal for engaging in that conduct, it would be invalid to that extent; and therefore “gross misbehaviour” should be construed so as not to include conduct which consists of dissent over the way in which a union is being run (at [119]).

75    His Honour held that the Federal Union’s code of conduct, which, amongst other things, required officers to refrain from “casting damaging aspersions … or making comments about fellow officers either to other officers and staff or to persons outside of the Union” and stipulated that all criticism and disagreements were to be “processed by internal democratic debate”, could not be relied on to achieve the same outcome and was invalid to the extent that it applied to the impugned conduct (at [126]).

76    Mr Quirk and Mr Miller raised a multitude of other arguments which his Honour did not need to deal with but which are revived in the appeal and in their notice of contention.

The adverse action case

77    It appears that this part of the case was confined to the issues arising out of the participation of Mr Quirk and Mr Miller in 7.30 and the “complaints” made to 7.30 (see trial transcript at T1188–9).

78    Mr Quirk and Mr Miller contended that the adverse action taken against them consisted of the laying of the charges, their removal from office as elected organisers, and the termination of their employment. They alleged that the action was taken for one or all of three prohibited reasons. The first was that they had engaged in “industrial activity” within the meaning of s 347(b) of the FW Act, in contravention of s 346. The second was that their statements to the media were expressions of their political opinions when speaking to the media (s 351). The third was that they had both exercised a “workplace right”, in particular their rights as employees to make complaints in relation to their employment (s 340 read with s 341).

79    At the trial there was a dispute as to whether the employment relationship had been terminated. The primary judge resolved this dispute in favour of Mr Quirk and Mr Miller. His Honour held that, because the removal decisions were invalid, Rita Mallia’s letter of 27 April 2015 (informing them that their employment came to an end on 17 April 2015 as a consequence of their removal from office) was a repudiation of their contracts of employment, and that Mr Quirk and Mr Miller had accepted the repudiation (at [345]).

80    There was also a dispute about whether the laying of the charges and the sending of the letter advising them of their removal from office constituted adverse action. The primary judge held that they did not (at [237]–[239]).

81    There were two limbs to the industrial activity claim. One was that adverse action had been taken against them because they did not comply with a lawful request or requirement of the Federal Union (that they not speak to the media or any other third party without first obtaining its authorisation) (s 347(b)(iv)). Notably, they did not plead that adverse action had been taken against them because they did not comply with an unlawful request or requirement (to that effect) (s 347(e)). The other was that the adverse action was taken because they did not “represent or advance” the Federal Union’s views or interests (s 347(b)(v)). Evidently, in its final iteration the claim was that their conduct in speaking to 7.30 and the SMH was contrary to the Federal Union’s interests (at [269]).

82    The primary judge held that neither limb was made out.

83    With respect to the first limb, his Honour found that the evidence did not establish that the Federal Union had requested its members not to speak to the media without authorisation (at [260]). He accepted that the evidence established the existence of “a widely held understanding” by “those involved in the management of the Federal Union that members should not speak to the media without authorisation” (at [261]). Nevertheless, his Honour concluded that it was unlikely the understanding existed in October 2014 when Mr Quirk and Mr Miller appeared on 7.30 because, by that time “whatever had been an understanding had … fructified into the form of cl 12” of the Federal Union’s Code of Conduct, effective 28 June 2013, which was annexed to Mr Miller’s affidavit and replaced an earlier code of conduct, annexed to Mr Quirk’s affidavit, which did not contain a provision to this effect. The primary judge referred to the 2013 publication as the New Code of Conduct and noted that it was in place at the time Mr Quirk and Mr Miller spoke to the media (at [261]). Clause 12 of the New Code of Conduct provided that:

No literature other than union and other agreed literature is to be distributed by Officers of the Union unless authorised by the Secretary. Any comments or contact with the media shall be approved by an Executive Officer.

84    His Honour inferred that cl 12 formalised what had previously been an informal understanding (at [261]) and the “widely held understanding” was no longer a requirement within the meaning of s 347(b)(iv) by the time Mr Quirk and Mr Miller appeared on 7.30 and spoke to the SMH (at [261]). At all events, his Honour held that cl 12 did impose a requirement within the meaning of s 347(b)(iv) that Mr Quirk and Mr Miller not to speak with the media without first obtaining permission (at [264]).

85    But his Honour held that the requirement was unlawful, so that s 347(b)(iv) did not apply (at [265]).

86    With respect to the second limb, his Honour noted (at [270]) that s 347 is concerned with protecting freedom of association but does not extend to taking positive steps inimical to the interests of an industrial association unless taking those steps can be seen as part of an exercise of freedom of association or connected with it, citing Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (The Bay Street Appeal) (2020) 282 FCR 1 at [32] (Allsop CJ). He went on to hold that the impugned conduct was outside the scope of s 347 because “an exercise in dissent about the manner in which an industrial association is being managed [does not fall] within the protection of a provision which is concerned with freedom of association” (at [273]–[274]).

87    On the assumption that the Divisional Executive removed Mr Quirk and Mr Miller because of their political opinions, his Honour held (at [286]–[287]) that this claim was not made out because the action was taken in Sydney, the Anti-Discrimination Act 1977 (NSW) does not render unlawful discrimination on the ground of political opinion, and therefore the prohibition against taking adverse action for this reason does not apply (see s 351(2)(a)).

88    The “workplace right” which Mr Quirk and Mr Miller alleged they had exercised was the right referred to in s 341(1)(c)(ii), namely the ability to make “a complaint or inquiry … in relation to [their] employment”. The complaints were said to consist of their remarks to the media.

89    His Honour rejected the claim that the adverse action was taken because Mr Quirk and Mr Miller had exercised a workplace right because he did not consider that s 341(1)(c)(ii) was broad enough to capture “[w]histleblowing to the media” (at [291]–[296]).

90    In view of the conclusions his Honour reached on the application of the provisions upon which Mr Quirk and Mr Miller had relied, it was unnecessary for him to determine whether the adverse action was taken for any of the reasons they claimed. In anticipation of an appeal, however, his Honour proceeded to consider that question on the assumption that his conclusions were wrong. His Honour was satisfied one of the substantial and operative reasons the Divisional Executive purported to remove Mr Quirk and Mr Miller from the offices they held was because they had spoken to the media without authorisation (at [309]–[313]). He was also satisfied that another of those reasons was that the two men had acted in a way that was adverse to the interests of the Union (at [314]–[318]). But his Honour said there was no support in the evidence for the proposition that one of the reasons for the action was that the men had made a complaint to, or an inquiry of, the media ([at [319]). Further, while his Honour was satisfied that the statements they made to the media were “manifestations of political opinion” and was prepared to assume that this constituted political opinion for the purposes of s 351(1), he was not prepared to infer that the Divisional Executive purported to remove the men from office because of their political opinions (at [320]–[321]). His Honour did not consider that it was open to reject the affidavit evidence given by the members of the Divisional Executive that they were not motivated by the politics of Mr Quirk and Mr Miller (at [325]). While he was prepared to accept that some members of the Divisional Executive were influenced by the contents of their statements and that their statements were political in nature, his Honour did not accept that this signified that they had been removed because of their political opinions. He went on to say (at [326]):

What Mr Quirk and Mr Miller said was capable of bearing multiple characterisations. Whilst I accept that their statements to the media constituted an expression of political opinion, the same speech acts also constituted the denigration of the Federal Union. Proof of the former does not entail that they were removed for that reason and it certainly does not entail that they were not removed because of the latter: Construction, Forestry, Mining and Energy Union v Endeavour Coal Pty Ltd [2015] FCAFC 76; 231 FCR 150 at [35], [52]-[56].

91    Later, at [329] his Honour concluded:

In my view, it is clear that the Divisional Executive did not remove Mr Quirk and Mr Miller because of their politics. It removed them because of the disloyalty perceived in Mr Quirk and Mr Miller’s highly public denigration of the Federal Union and their decision to speak without permission to the media. My overall and strong impression of the evidence of the members of the Divisional Executive is that the Federal Union is almost tribal in nature and that within its ranks loyalty is the cardinal value above almost everything else. Mr Quirk and Mr Miller’s sin was to transgress that cardinal value in the national media during the moment of the Federal Union’s greatest peril. I do not think that their politics entered into the equation. For the same reasons, I reject Mr Seck’s alternate submission based on the concept of imputed political opinion.

(Emphasis added.)

The breach of contract case

92    The primary judge concluded that, while Mr Quirk and Mr Miller had already been employed jointly by the Unions, upon their election as organisers, a “new contract” of employment came into existence under which the Federal and State Unions employed them as elected organisers in the service of the Divisional Branch (at [21]). His Honour found that it was an implied term of their contracts that their employment was “coterminous with the holding of the office to which they had been elected” (at [21]) and that their employment contracts ended when they ceased to hold office (at [23]).

93    Having found that their removal from office was not authorised by rule 11, the primary judge held that the decision of the Divisional Executive was invalid. His Honour held that the availability of a right of appeal did not cure either the denial of procedural fairness or the erroneous finding (at [342]–[344]). As indicated above, he also accepted Mr Quirk and Mr Miller’s argument that the Federal Union repudiated the contracts in its letter of 27 April 2015 and that Mr Quirk and Mr Miller accepted the repudiation. Consequently, his Honour held that they were wrongfully dismissed and entitled to sue the Federal Union for breach of contract (at [332]-[345]). While their contracts of employment with both Unions came to an end when they accepted the repudiation, his Honour held that the State Union was not liable because it was the Federal Union alone which breached their contracts (at [346]).

Relief

94    His Honour declined to make a declaration or grant relief under any of the following provisions of the FWRO Act as Mr Quirk and Mr Miller had requested: s 164, which gives the Court the power to direct a person to perform or observe rules of an organisation (on a final or interim basis); s 164A, which gives the Court the power to make an order directing a person or persons who breach a rule of an organisation (and do so unreasonably) to rectify the breach; or s 164B, which gives the Court the power to declare that a rule or rules contravene s 142 of the FWRO Act (at [349]). Rather, he confined relief to damages.

95    His Honour was unpersuaded by the argument that the employment of Mr Quirk and Mr Miller would have been lawfully terminated before the expiration of their four-year term on 1 January 2017 (at [354]). At that point, however, he was certain that “[g]iven what had happened”, which I take to be a reference to their denigration of the Federal Union in the media, his Honour found that there was “no prospect” that they would be elected as organisers again and “even less chance” that they would be otherwise employed (at [355]).

96    His Honour rejected the submission by Mr Quirk and Mr Miller that they were entitled to payment in lieu of notice, holding that they were employed only for the duration of the period in which they held office and the Union could not terminate their employment while they remained in office (at [357]). His Honour also rejected submissions by the Unions that any award of damages should be discounted because they ceased being members of the Federal Union on 1 October 2015 (at [358]), because they received payments from the Australian Construction Industry Redundancy Trust ([359]), because Mr Quirk had a nervous breakdown in mid-2016 ([360]), or because both he and Mr Miller had recovered workers’ compensation (at [361]).

97    His Honour observed that no claim had been made for the recovery of other sums that might have been due on termination, such as accrued annual leave (at [362]).

98    Accordingly, the measure of the damages in each case was based solely on the gross salary of each of the men from 27 April 2015, when their employment was terminated, until 1 January 2017 inclusive, when their four year terms as elected officials would have expired in the ordinary course.

THE APPEAL

99    The Federal Union appeals from all five substantive orders and the findings that underpinned them. Ground 1 challenged the findings of the primary judge about the construction of “gross misbehaviour” in rule 11(a)(i), the characterisation of Mr Quirk and Mr Miller’s conduct as “dissent”, and therefore the invalidity of the decision of the Divisional Executive. Grounds 2 and 3 challenged his Honour’s findings that Mr Quirk and Mr Miller were not afforded an opportunity to be present at the hearing and being heard as required by rule 11(a)(ii)(c) and having regard to the right of appeal conferred by rule 11(c). Ground 4 challenged the consequential findings on liability and does not need to be separately considered. Ground 5 challenged the findings on damages, initially on nine separate bases but grounds (d), (e), (f) and (i) were abandoned.

100    The notice of appeal was amended twice. The State Union is not a party to the appeal. For some inexplicable reason it was named as a cross-respondent in the final iteration, the Further Amended Notice of Appeal.

THE NOTICE OF CONTENTION

101    In truth, there was no notice of contention. Mr Quirk and Mr Miller filed a “notice of cross-appeal and contention” in which no points of contention were articulated. Rather, a list of additional allegations of error were pleaded. Some of these allegations (3, 7 and 8) were withdrawn. The remaining allegations were rephrased during the hearing (in a “Further Amended Notice of Cross-Appeal and Contention”) as follows:

(1)    The primary judge should have found that Mr Quirk and Mr Miller were officers within the meaning of s 141(1)(c)(iii) of the FWRO Act.

(2)    The primary judge should have found that the conduct of Mr Quirk and Mr Miller could not be characterised as gross misbehaviour because that conclusion would “discriminate against members on the basis of political opinion”.

(3)    The primary judge should have found that rule 11 was invalid because it impermissibly interfered with the implied constitutional freedom of communication in political matters.

(4)    The primary judge should have found that Mr Quirk and Mr Miller’s conduct could not be characterised as gross misbehaviour because s 141(1)(c)(iii) has to be read to be consistent with the implied constitutional freedom of communication in political matters.

(5)    The primary judge should have found that the correct standard of review of the decision of the Divisional Executive is that set out in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332.

THE CROSS-APPEAL

102    Seven grounds were initially pleaded. The seventh challenged the primary judge’s decision not to award costs. That part of the costs appeal was quite properly abandoned. His Honour was plainly correct in that respect.

103    The Further Amended Notice of Cross-Appeal and Contention challenged his Honour’s findings that, upon being elected to their positions in 2012 for four-year terms, Mr Quirk and Mr Miller entered into a new contract of employment with a fixed term of four years expiring on 1 January 2017 and that the Union had not taken adverse action against them for any of the reasons they had alleged. It also complained about his Honour’s failure to consider whether the State Union had breached the Enterprise Agreement by failing to follow the termination procedure set out therein.

104    By ground 1, Mr Quirk and Mr Miller pleaded that the primary judge erred in finding that they entered into a new contract when they were elected to office containing an implied term that their employment was coterminous with the period in which they held those offices so that they were only entitled to damages for the balance of the elected fixed term. Mr Quirk and Mr Miller alleged that they were entitled to either wages in lieu of “reasonable notice” or “damages equivalent to their wages until retirement (age 70) less any income [derived] through [their] personal exertion”. In substance, his Honour’s findings were said to be erroneous on the basis that he had misconstrued rule 49(a) of the Divisional Rules and overlooked the evidence of a “custom or practice” in which elected officers continued in their employment with the Union after ceasing to hold office unless their employment was terminated.

105    By ground 2, Mr Quirk and Mr Miller pleaded that:

a.    The primary judge failed to apply ss 360 and 361 of the FW Act requiring the [Federal Union] to rebut the presumption that its decision was made for one of the alleged proscribed reasons but adopted the approach of determining whether there was evidence supporting whether members of the Divisional Executive acted for a proscribed reason.

b.    The primary judge erred at PJ [305] in not finding that s 363(3)(b) of the FW Act required only one member of the Divisional Executive of the Construction and General Division of the [Federal Union] (the Divisional Executive)’s reasons to include a proscribed reason.

c.    In relation to the question of whether adverse action was taken because of [their] ‘political opinion’, the primary judge erred at PJ [329] in finding that the 'real reason' for the Divisional Executive's actions in removing the [them] from office was 'disloyalty' when the [Federal Union] did not rely upon such a reason in pleadings or evidence.

d.    In relation to the question of whether adverse action was taken because of [their] ‘political opinion’, the primary judge erred at PJ [329] in finding that each member of the ‘Divisional Executive’ acted for the sole reason that the [they] had shown ‘disloyalty’ and not analysing each member of the Divisional Executive’s state of mind and reasons separately by reference to their individual evidence including cross-examination.

e.    The primary judge erred in failing to find that the presumption in s 361 of the FW Act was not rebutted in circumstances where the ‘real reason’ was different to the stated or pleaded reasons of members of the Divisional Executive.

f.    [Deleted.]

g.    In relation to the question of whether adverse action was taken because of [their] ‘complaint or inquiry’, the primary judge erred at PJ [319] in not finding that members of the Divisional Executive had acted for reasons which included because [they] had made a ‘complaint or inquiry’.

h.    In relation to the question of whether adverse action was taken because of [their] ‘complaint or inquiry’, the primary judge erred at PJ [319] in not analysing each member of the Divisional Executive’s state of mind and reasons separately by reference to their own individual evidence including cross-examination.

106    Ground 3 challenged the findings that the Federal Union had not taken adverse action against Mr Quirk and Mr Miller because they had engaged, or had not engaged, in “industrial activity” in contravention of s 346(b) and (c) of the FW Act. The specific errors alleged to have been made were:

(1)    finding (at [265]) that cl 12 of the New Code of Conduct, which required employees to seek authorisation before communicating with the media, was not a “lawful requirement” within s 347(b)(iv) or;

(2)    alternatively, not finding that cl 12 of the New Code of Conduct was an “unlawful requirement” within s 347(e);

(3)    finding (at [266]) that s 347(b)(iv) was not applicable to registered organisations in their capacity as employers with respect to their employees;

(4)    finding (at [271]–[272]) that their expressions of opinions contrary to those of the Federal Union did not involve the exercise of the right to freedom of association; and

(5)    not determining whether the Federal Union took adverse action against them because they had not complied with a lawful or unlawful requirement not to appear in the media without authorisation; and/or whether they did or did not advance the views, claims or interests of the Federal Union.

107    Ground 4 challenged the findings that the Federal Union had not contravened s 351(1) of the FW Act by taking adverse action against Mr Quirk and Mr Miller because of their political opinions. The alleged errors were:

(1)    finding (at [285]) that the laying of charges and the communication of the decision to remove Mr Quirk and Mr Miller from office (as opposed to the decision itself) was not adverse action within the meaning of s 342(1);

(2)    not finding that the Federal Union had engaged in a single “course of conduct” amounting to adverse action, which included both the laying of charges and the communication of the decision, so that the adverse action occurred in both Victoria and New South Wales;

(3)    finding at [286] that the effect of s 351(2)(a) is that s 351(1) does not operate according to its terms in States or Territories that have anti-discrimination laws that do not prohibit discrimination on the ground of “political opinion” or cognate grounds; and

(4)    in finding (at [325]–[329]) that the Federal Union did not act “because of” the political opinions of Mr Quirk and Mr Miller despite finding that their conduct in expressing their views in the media was a manifestation of their political opinions.

108    Ground 5 challenged the finding that the Federal Union had not contravened s 340(1) by taking adverse action against Mr Quirk and Mr Miller because each of them had made a complaint in relation to their employment. The alleged errors were:

(5)    finding (at [291]) that the words “able to make” in s 341(1)(c)(ii) require that there be a right at law to make a complaint rather than that the subject-matter of the complaint be underpinned by a right at law; and

(6)    finding at [319] that the Federal Union’s decision to remove them from office was made because they appeared in the media, not because they made a complaint to the media.

109    In ground 6 Mr Quirk and Mr Miller pleaded that the primary judge erred at [345]–[348] (where his Honour absolved the State Union of liability for breach of contract) by failing to find that both the State Union and the Federal Union had repudiated their contracts of employment and therefore not going on to determine whether the State Union had breached the Enterprise Agreement by not following the termination procedure set out in the Enterprise Agreement.

110    Ground 7, in which Mr Quirk and Mr Miller pleaded that the primary judge erred in finding that s 329 of the FWRO Act applied to the determination of costs for a successful breach of contract claim when that claim was brought together with an adverse action claim under the FW Act, was not pressed.

111    Mr Quirk and Mr Miller sought orders allowing the cross-appeal, setting aside the orders dismissing those parts of the application in which they were unsuccessful, and remitting the matters to the primary judge to conduct any rehearing on liability, compensation, costs and penalties.

THE NOTICE OF CONTENTION TO THE CROSS-APPEAL

112    The Federal Union filed a notice of contention to the cross-appeal in which it contended that, if its appeal were unsuccessful, the judgment of the primary judge should be affirmed on the following grounds:

1.    If (which is denied) the primary judge erred in finding that the terms of rule 49(a) of the Rules of the Construction and General Division of the [Federal Union] compelled the result that [Quirk and Miller’s] previous employment contract was terminated and that the employment contracts of [Quirk and Miller] were coterminous with holding office, [Quirk and Miller] would nonetheless be entitled to damages at most for the balance of their elected term because the [Federal Union] would have terminated their employment at an earlier time; and in any event damages would be further reduced for the reasons set out in Ground 5 of the [Federal Union’s] Appeal.

2.    If (which is denied) the primary judge erred in finding that s 329 of the [FWRO Act] applied to the determination of costs with respect to the breach of contract claims, no order for costs of those claims was sought under or could have been made by operation of s 570 of the [FW Act].

113    Ground 2 of the notice of contention to the cross-appeal fell away given that ground 7 of the cross-appeal was not pressed.

THE ISSUES

114    The parties were required to file an agreed consolidated list of issues for determination stated as questions approximately two weeks before hearing. Following a brief extension of time, the parties filed the first version of the agreed list of issues on 8 August 2022.

115    After the hearing, on 30 August 2022, the parties filed an amended version of the agreed list of issues. The amended list reflected the fact that, on the first day of hearing, leave was granted to Mr Quirk and Mr Miller and the Union to file amended notices of appeal and cross-appeal respectively and, on the second day of hearing, leave was granted to Mr Quirk and Mr Miller to file a further amended notice of appeal.

116    The amendments to the agreed list of issues were the addition of new issues 2(iii) and 2A, the striking out of issues 8, 12 and 21 (which were not pressed), and the amendment of issues 14, 15 and 22. As the parties did not re-number the amended agreed list to reflect that issues 8, 12 and 21 were not pressed, I have adopted the numbering used in the amended agreed list in these reasons.

117    Pursuant to an order of the Court made after the hearing, the parties filed an agreed decision tree which identified each issue for determination (including the ground of appeal and/or cross-appeal to which each issue related) and the consequences of the answer to each question on the need for the Court to resolve the other issues and the disposition of the relevant ground of appeal and/or cross-appeal.

118    The parties agreed that the following questions arose for determination.

(1)    Did the charges brought against Mr Quirk and Mr Miller, and heard by the Divisional Executive, under rule 11 of the Divisional Rules concern allegations that they had engaged in gross misbehaviour by:

in the case of Quirk:

(a)    making public statements in the media without prior authorisation in his capacity as an officer of the Federal Union;

(b)    making false and damaging statements about the Federal Union;

(c)    making false and damaging statements about the Federal Union’s then National Secretary; and/or

(d)    making false and damaging statements about officers and employees of the Federal Union?

in the case of Miller:

(e)    speaking to journalists without authorisation about unsubstantiated matters damaging to the Federal Union that had not first been raised internally by him; and/or

(f)    making false and damaging statements about the Federal Union that had not first been raised internally by him?

If so, were the matters with which Mr Quirk and Mr Miller were charged correctly characterised as involving the expression of dissent or limited to their expressions of dissent about the manner in which the Federal Union was being managed?

(2)    What is the correct construction of the phrase ‘gross misbehaviour’ under rule 11 of the Divisional Rules? In particular:

(a)    Would rule 11 be invalid if it authorised the removal of a Divisional Branch Officer for “gross misbehaviour” on the basis of any conduct on the part of the officer which is capable of being characterised as dissent about the manner in which the organisation is being managed?

(b)    More particularly, could rule 11 validly authorise the removal of a Divisional Branch Officer for “gross misbehaviour” on the basis of the conduct with which each of Mr Quirk and Mr Miller was charged, including making unauthorised public statements in the media about the Federal Union that were false and adverse to the Federal Union?

(c)    In determining the correct construction of rule 11 and the meaning of “gross misbehaviour”, to what extent (if at all) is the following relevant:

(i)    whether (and, if so, to what extent) such construction would otherwise not meet the requirements of s 142(1)(d) of the FWRO Act by discriminating against members on the basis of their political opinion;

(ii)    whether (and, if so, to what extent) such a construction would otherwise be contrary to law and not meet the requirements of s 142(1)(a) of the FWRO Act because, if so construed, it would impermissibly interfere with the implied freedom of communication on political matters under the Commonwealth Constitution and the common law; and

(iii)    whether (and, if so, to what extent) the conduct with which Mr Quirk and Mr Miller were charged is not capable of being so characterised because s 141(1)(c)(iii) of the FWRO Act must be construed so as not to be inconsistent with the implied freedom of communication in political matters under the Commonwealth Constitution?

(2A)    What is the standard of review applicable in relation to decisions of domestic tribunals like the Divisional Executive? In particular, is the standard that described by Dixon J in Australian Workers Union v Bowen [No 2] (1948) 77 CLR 601 (AWU v Bowen or Bowen) or the standard in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332? If the standard is the latter (and the primary judge erred) does the fact that the Divisional Executive convicted Mr Quirk and Mr Miller of “gross misbehaviour” on the basis of only some of the particulars of the charges being correctly made out invalidate the decision to dismiss them?

(3)    Were Mr Quirk and Mr Miller afforded “an opportunity of being present” at the hearing of the Divisional Executive held on 17 April 2015 within the meaning of rule 11(a)(iii) of the Divisional Rules?

(4)    If Mr Quirk and Mr Miller were not afforded “an opportunity of being present” at the hearing on 17 April 2015, did the Divisional Executive fail to comply with rule 11 by proceeding to deal with the substance of the charges so as to render the decisions of the Divisional Executive invalid?

(5)    On the assumption that Mr Quirk and Mr Miller were not afforded “an opportunity of being present” at the hearing on 17 April 2015 within the meaning of rule 11(a)(iii):

(a)    does the fact that Mr Quirk and Mr Miller had a right of appeal under rule 11(c) to the Divisional Conference and a further right of appeal to the National Executive or the National Conference affect any failure to comply with rule 11(a)(iii) and, if so, does it affect the validity of their removal; and

(b)    is it relevant in determining whether Mr Quirk and Mr Miller were lawfully removed that any failure to comply with rule 11(a)(iii) was “material” in the sense described in MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506? If so, was any breach of rule 11(a)(iii) by the Divisional Executive material?

(6)    If ground 1 is upheld but one or more of grounds 2–4 are dismissed, what period would Mr Quirk and Mr Miller have remained in employment in light of the finding of the primary judge that, had a lawful way of removing the respondents existed, it would have been utilised by the appellant?

(7)    What, if any, wages would Mr Quirk and Mr Miller have earned had they not been removed from office on 17 April 2015 and subsequently dismissed? In particular, what if any impact do the following matters have on the assessment of damages:

(i)    the fact that Mr Quirk and Mr Miller were in receipt of workers’ compensation at the time of and following their removals and had provided WorkCover certificates indicating they were not fit or able to perform work in the period;

(ii)    the disillusionment with the Federal Union Mr Quirk and Mr Miller had expressed, their unwillingness to perform work for it under its current leadership, and their failure to pay membership fees despite remaining members;

(iii)    the fact that Mr Quirk and Mr Miller had not worked for a significant period; and

(iv)    the fact that Mr Miller was absent overseas in Scotland in 2015?

(8)    [Deleted.]

(9)    Was the employment of Mr Quirk and Mr Miller coterminous with their terms of office under the Divisional Rules by reason of an implied term in their contracts of employment or otherwise? If their respective contracts of employment were not coterminous with their terms of office, were their contracts for fixed terms or did they provide for ongoing employment until terminated by either party?

(10)    In light of the answers to questions 6–9 above, to what, if any, damages are Mr Quirk and Mr Miller entitled to arising from any repudiation of their contracts of employment?

(11)    If grounds 4 or 5 of the cross-appeal are upheld, did the primary judge err in his consideration of whether the Federal Union had discharged its onus under s 361 of the FW Act of rebutting the presumption that the adverse action was taken for reasons alleged by Mr Quirk and Mr Miller in their statements of claim?

(12)    [Deleted.]

(13)    Should Mr Quirk and Mr Miller be permitted, on appeal, to advance an argument that the Federal Union contravened s 346(c) of the FW Act (in respect of an “unlawful requirement”) when such a case was not pleaded at first instance?

(14)    If Mr Quirk and Mr Miller are permitted to advance an argument that the Federal Union contravened s 346(c) of the FW Act, was the provision of the Code of Conduct directing employees not to speak to the media without obtaining authorisation or any other requirement not to speak to the media an “unlawful requirement” for the purposes of s 347(e) of the FW Act? Did Mr Quirk and Mr Miller’s non-compliance with the unlawful requirement relate to freedom of association such that they engaged in industrial activity?

(15)    Did Mr Quirk and Mr Miller otherwise engage in “industrial activity” by not representing or advancing the interests of the Federal Union for the purposes of s 347(b)(v) of the FW Act? Did the views, claims and interests that Mr Quirk and Mr Miller represented and advanced, which differed from those of the Federal Union, relate to freedom of association such that they involved Mr Quirk and Mr Miller engaging in industrial activity within the meaning of Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (The Bay Street Appeal) (2020) 282 FCR 1?

(16)    What is the correct construction of s 351(2)(a) of the FW Act?

(17)    For the purposes of s 351(2)(a) where was the place in which the adverse action was taken? In particular, did the actions comprising the alleged adverse action include the place where they were charged with gross misbehaviour under rule 11 of the Divisional Rules and the place where they were informed of the Divisional Executive’s decision to remove them from office and, if so, where did those actions occur?

(18)    If questions 16 or 17 are determined in favour of Mr Quirk and Mr Miller, did the primary judge err in finding that a substantial and operative reason that they were removed from office was not their political opinions?

(19)    Did the primary judge err in finding that each of Mr Quirk and Mr Miller did not exercise a “workplace right” for the purposes of s 341(1)(c)(ii) of the FW Act by making the statements they made to media organisations because that conduct did not constitute the exercise of a “workplace right” of being able to make a complaint or inquiry in relation to their employment?

(20)    Did the primary judge err in not finding that the Divisional Executive decided to remove Mr Quirk and Mr Miller from office because they had made a “complaint” to the media?

(21)    [Deleted.]

(22)    [D]id the State Union breach Appendix B to the Enterprise Agreement?

119    Issues 8, 12 and 21 were abandoned during argument.

120    The agreed issues relate to the grounds of appeal, cross-appeal, contention, and cross-appeal contention as follows:

    issue (1) to appeal ground 1;

    issue (2) to appeal ground 1 and appeal contentions 1, 2, 4 and 5;

    issue (2A) to appeal ground 1 and appeal contention 6;

    issues (3) and (4) to appeal grounds 2 and 4;

    issue (5) to appeal grounds 3 and 4;

    issues (6) and (9) to appeal ground 5, cross-appeal ground 1 and cross-appeal contention 1;

    issues (7) and (10) to appeal ground 5 and cross-appeal ground 1;

    issue (11) to cross-appeal ground 2;

    issues (13)–(15) to cross-appeal ground 3;

    issues (16)–(18) to cross-appeal ground 4;

    issues (19) and (20) to cross-appeal ground 5; and

    issue (22) to cross-appeal ground 6.

CONSIDERATION

The Rules case

121    It is convenient to deal with this issue first. It will be recalled that it involves three questions:

(1)    whether the Federal Union afforded Mr Quirk and Mr Miller an opportunity of being present at the hearing before the Divisional Executive on 17 April 2015 within the meaning of rule 11(a)(ii)(c) and, if it did not, whether the breach of the rule was cured because they could have appealed;

(2)    whether Mr Quirk and Mr Miller’s conduct was capable of amounting to “gross misbehaviour” within the meaning of rule 11; and

(3)    whether rule 11 was invalid.

Were Mr Quirk and Mr Miller afforded an opportunity of being present at the hearing on 17 April 2015 within the meaning of rule 11(a)(ii)(c) of the Divisional Rules (issues 3 and 4, appeal grounds 2 and 4)?

122    The primary judge found that they were not. The real question, then, is: having regard to the burden of proof which rests with the Federal Union, was this finding erroneous? For the reasons that follow, the answer to that question is no.

123    Rule 11 relevantly provides:

11 - REMOVAL OF OFFICERS

(a)(i)    Any Divisional or Divisional Branch Officer may be removed from office by majority decision of the Divisional Executive of the Division in which the Officer holds office, provided that such officer shall not be dismissed from office unless the officer has been found guilty, in accordance with the Rules of the Union, of misappropriation of funds of the Union or a substantial breach of the Rules of the Union or gross misbehaviour or gross neglect of duty or has ceased according to the Rules of the Union to be eligible to hold office.

(ii)    An officer may be charged by any member of the Division with the offences referred to [at] 11(a)(i) above, whether the offence occurred before or after this sub-rule came into effect, and where the Divisional Executive is to consider whether or not any Divisional or Divisional Branch Officer is to be removed from office under sub-paragraph i) herein, the procedure to be adopted shall be as follows:

a)    The officer is to be summoned to attend the meeting at least 7 days prior to the meeting,

b)    Notice of the charge or allegation is to be given sufficient to enable a reply,

c)    The officer is to be afforded an opportunity of being present at the hearing and of being heard in his/her own defence, including an opportunity to cross-examine and to give and call evidence.

…

(c)    Any officer so removed from office shall have the right of appeal to the Divisional Conference and therefrom to the National Executive or National Conference.

In the event of the appeal being upheld the Divisional Conference, National Executive or National Conference may order reinstatement to apply on such conditions as it considers the circumstances warrant.

(Emphasis added.)

124    The Federal Union argued that both men were afforded the opportunity contemplated by the rule. In the alternative, the Federal Union contended that their removal from office was not invalid because they had a right of appeal which they elected not to exercise.

125    As amended, appeal ground 2 reads as follows:

The primary judge erred at [63], [78] - [80], [82] – [86], [93], [331] and [335] in:

a.    Finding that each [of Mr Quirk and Miller] was not afforded an opportunity to be present at the 17 April 2015 hearing of the Divisional Executive and of being heard in his defence such that the Divisional Executive did not comply with rule 11(a)(ii)(c) of the Divisional Rules;

b.    Finding, consequently, that the Divisional Executive breached or failed to comply with rule 11 by proceeding to deal with the substance of the matter, rendering the decisions of the Divisional Executive invalid;

c.    Finding that [Quirk and Miller] did not have a reasonable opportunity to be present and be heard in their defences in circumstances where [they]:

(i)    had been afforded a previous adjournment of a hearing scheduled for 18 November 2014 on the basis that they were not, at that time, in a position to answer the charges;

(ii)    had retained solicitors to act for them since at least 18 November 2014;

(iii)    had received the charges and documents relating to the charges in early November 2014;

(iv)    had had the ability, for a period of some 5 months, to provide the Divisional Executive with evidence, submissions or other information in response to the charges;

(v)    should have reasonably apprehended that the Divisional Executive may not grant the adjournment sought on 14 April 2015 and should have sought to have their lawyers attend the meeting on their behalves, or should otherwise have provided evidence, submissions or other information to the Divisional Executive in response to the charges.

d.    Relying, at [57] on the affidavit of Psychologist Alison Smith whose affidavit was not read at trial by [Quirk and Miller].

126    No submissions were made about ground 2d, so I assume the point was not pressed.

127    The question of whether Mr Quirk and Mr Miller were provided with the opportunity contemplated by the rule first raises a question concerning the construction of the rule. Union rules are to be construed objectively, in accordance with the ordinary rules governing the interpretation of documents but with a view to their practical application, taking account of the context in which they were made and the common understanding of their makers: O’Connor v Setka [2020] FCAFC 195 at [76]–[78] (Mortimer, Rangiah and White JJ) and the cases referred to there.

128    The Federal Union did not argue that the primary judge erred in finding that there was no contradiction between the WorkCover certificates and the medical opinions provided to the Divisional Executive by Mr Quirk and Mr Miller or in his Honour’s conclusion that the only material before the Divisional Executive on the subject of their fitness to attend the hearing was the evidence they proffered that they were unfit to do so. The error the primary judge is alleged to have made is that he incorrectly applied the common law natural justice hearing rule when, according to the Federal Union, the procedure laid down in rule 11(a)(ii) is a code which excludes the common law natural justice hearing rule. The Federal Union submitted that Mr Quirk and Mr Miller were afforded multiple chances to attend a meeting of the Divisional Executive at which the charges were scheduled to be heard but elected not to, observing that, not only did they not attend the meeting on 17 April 2015 but neither did their lawyers. It submitted that they should have anticipated that their applications for adjournment might be refused and claimed that they had not indicated to the Divisional Executive that they wished to advance matters at the hearing in opposition to the charges. In the circumstances, they argued that the officers voluntarily assumed the risk that the meeting would go ahead in their absence.

129    There are numerous difficulties with the Federal Union’s submissions.

130    First, the submissions are based on the premise that “opportunity” means “chance” or “prospect”. It does not. “Opportunity” is defined in the Macquarie Dictionary as “an appropriate or favourable time or occasion: an opportunity to make good; an opportunity for gaining a place; an opportunity of testing a discovery”. The Oxford English Dictionary does include a reference to “chance” but only in the specialised context of “a chance for employment or promotion; a job vacancy”. Otherwise, apart from several obsolete meanings, the OED defines “opportunity” as a reference “to favourable circumstances, position etc.” The word derives from the Old French opportunite and directly from the Latin opportunitatem (nominative opportunitas) meaning “fitness, convenience, suitableness, favourable time” (Online Etymological Dictionary, accessed 23 August 2022).

131    Second, the common law natural justice hearing rule, often referred to as procedural fairness, requires that a person who may be adversely affected by a decision be informed of the case against them and given a reasonable opportunity to answer it. Consequently, a failure to accede to a reasonable request for an adjournment can amount to a denial of procedural fairness. See Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 at [40] (Gaudron and Gummow JJ). The Federal Union contended that, in contrast, all rule 11(a)(ii)(c) required was that Mr Quirk and Mr Miller be given an opportunity (that is to say a chance) to attend the meeting. It argued that “the inference that no such opportunity had been provided if the personal circumstances of the officer meant that he or she was not able to take it up involved an impermissible gloss on [the rule] and a failure to read it in [the] context of rule 11(a)(ii)(a)–(c)”.

132    There is no good reason to construe rule 11 in such a way as to exclude aspects of the common law rule. The better view is that the procedure laid down in rule 11(a)(ii) is an application of, not a limitation upon, that rule. The context does not call for a narrow construction. After all, the rule is concerned with the removal of an elected official without recourse to the electorate. In Dickason v Edwards (1910) 10 CLR 243 at 255 O’Connor J observed that:

[I]n interpreting rules which give jurisdiction to any tribunal there is always to be read into them the underlying condition that the proceedings shall be carried on in accordance with the fundamental principles of common justice. It is upon a party who wishes to shut out the implication of that basic condition to show that the rules expressly or by necessary implication negative the implication of its existence.

133    The omission of the adjective “reasonable” before “opportunity” is immaterial. The fact that the rule goes so far as to stipulate that the accused officer is not only entitled to be present, but may also cross-examine witnesses, makes it clear that this is its intent. A person who is not well enough to be present, let alone cross-examine witnesses or give evidence, has no such opportunity. Put another way, the opportunity is illusory. If the Federal Union were right, then mere notice of the charge and the meeting time and place would be sufficient to discharge the obligation under the Divisional Rules. A person who had been given notice of the meeting but was comatose on the day the meeting was scheduled to take place could not complain that they had not had an opportunity to be present at the meeting. The proposition only needs to be stated to be rejected.

134    Third, it is not to the point that the charges were originally scheduled to be heard at earlier meetings. The evidence before the primary judge was that Mr Quirk and Mr Miller were unfit to attend those meetings, too. Moreover, at the time of the meetings on 18 November 2014 and 5 December 2014 they lacked adequate particulars of the charges. That is apparent from their lengthy (and entirely reasonable) requests for further and better particulars sent on 1 and 2 December 2014 to which the Federal Union refused to respond on the basis that there was no requirement in the Divisional Rules for such a thing (PJ at [57]–[68]). The meeting scheduled for 17 March 2015, to which Mr Quirk and Mr Miller were also summoned to attend, was apparently postponed at the initiative of the Federal Union.

135    In any case the obligation in rule 11(a)(ii)(c) requires that an opportunity to be present is given at the meeting at which the charges are to be heard. By denying the requests of Mr Quirk and Mr Miller for an adjournment of the hearing, the Divisional Executive denied them that opportunity. Contrary to the Federal Union’s contention, neither of them “elected” not to attend. The only election that was made was the Federal Union’s election not to accept their medical evidence.

136    Nor is it to the point that their lawyers did not attend the meeting on 17 April 2015. The opportunity afforded by the rule is an opportunity to attend in person. It is an opportunity to confront their accusers.

137    That is not to say that the officers had a right to have the hearing postponed indefinitely. In circumstances such as this, however, it was incumbent upon the Divisional Executive to fashion a just process by which they could be heard which would adequately protect their interests in light of their medical conditions.

138    In any event, the Federal Union submitted that no “practical injustice” arose from the inability of Mr Quirk and Mr Miller to attend the meeting. The basis for this extraordinary submission is that they had not indicated to the Divisional Executive that they wished to advance matters at the hearing in opposition to the charges and “failed to avail themselves of the opportunity” to provide any evidence or submissions as to why they should not be found guilty or, if found guilty, not removed from office.

139    This submission must also be rejected.

140    It is apparent from the evidence that the Divisional Executive was well aware that Mr Quirk and Mr Miller intended to contest the charges and of the reasons they were unable to attend the hearing. They were not obliged to telegraph their defences, particularly when the Federal Union was unwilling to answer their request for particulars. Indeed, they were not obliged to say anything. The obligation was on the Federal Union to prove its case at a hearing where they had a proper opportunity to challenge its basis. There was no rule requiring them to provide evidence or submissions. Anyway, in a case such as this it is the denial of the reasonable opportunity to be heard which constitutes the denial of procedural fairness. As Gageler and Gordon JJ explained in Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326 at [60]:

Where … the procedure adopted by an administrator can be shown itself to have failed to afford a fair opportunity to be heard, a denial of procedural fairness is established by nothing more than that failure, and the granting of curial relief is justified unless it can be shown that the failure did not deprive the person of the possibility of a successful outcome. The practical injustice in such a case lies in the denial of an opportunity which in fairness ought to have been given.

141    It follows that ground 2 must be dismissed.

Does the availability of a right of appeal cure the invalidity (issue 5, appeal grounds 3 and 4)?

142    Ground 3, as amended, is in the following terms:

In the alternative to Ground 2, the primary judge erred in finding at [340] to [342] that the decision of the Divisional Executive to remove [Quirk and Miller] from office was invalid by reason of [their] not being afforded an opportunity of being present at the hearing and being heard in his own defence for the purposes of rule 11(a)(ii)(c) of the Divisional Rules in circumstances in which:

a.    each of [Quirk and Miller] were able to, but did not, appeal the decision of the Divisional Executive to the Divisional Conference in accordance with Rule 11(c); and/or

b.    neither of [Quirk and Miller] established that any denial of procedural fairness was material.

143    The primary judge held that, while there was a right of appeal, since Mr Quirk and Mr Miller did not exercise that right the breaches of rule 11 by the Divisional Executive were not cured. His Honour said (at [342]) that the matter was “foreclosed” by AWU v Bowen. The Federal Union submitted that Bowen is distinguishable and “does not govern the outcome in the present case”.

144    Bowen was concerned with resolutions of the Executive Council of the AWU to remove seven members of the union from their offices and expel them from the union. At least six of them appealed from the decisions to the Annual Convention of the union and their appeals were dismissed. In the High Court Latham CJ said it was unclear whether the seventh (Renwick) had lodged an appeal or whether the annual convention failed to deal with his appeal (at 618). Dixon J said he had appealed but his appeal was never dealt with (at 632). Rich J said the same thing (at 619). Starke J was apparently of the same view (also at 619). The remaining member of the court, Williams J, was silent about this matter. At first instance the resolutions were declared invalid, among other reasons because they were not made in accordance with the principles of natural justice. A majority of the High Court held that, while there had been a denial of natural justice in the original decision-making process, it was, in effect, cured by the appeal and the expulsions of the members whose appeals were dismissed were valid. In the case of Renwick, however, a majority held that the decision of the Executive was and remained invalid (Rich J at 619; Starke J also at 619; and Dixon J at 632).

145    It is clear from the reasons of these justices, particularly those of Dixon J, with whom Rich and Starke JJ agreed in separate reasons, that it was the confirmation of the decisions of the Executive Council following unsuccessful appeals that cured the denial of natural justice, not the availability of a right to appeal. As Dixon J put it at 632, “under the rules of decision of the [C]onvention gave a fresh authority to the dismissals and they no longer depended upon the resolutions of the Executive Council”. It was for that reason that the six whose appeals were dismissed were “no longer in a position to complain that the decision of the Executive Council was not given in accordance with the principles of natural justice”. Since Renwick’s appeal was never dealt with, however, Dixon J said “he [was] entitled to complain of the decision of the Council expelling him”; “he was entitled to treat the expulsion as invalid”.

146    The Federal Union submitted that Bowen does not deal with, or govern, the question of whether the failure of Mr Quirk and Mr Miller to appeal meant that there was “no denial of practical injustice” and therefore no denial of procedural fairness. The difficulty with that submission is that three of the five justices in Bowen held that there was a denial of procedural fairness (natural justice) in Renwick’s case when either he did not appeal or his appeal was not dealt with.

147    The concept of “practical injustice” is drawn from some remarks of Gleeson CJ in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 at [34]. In that case the applicant argued that he was denied procedural fairness by the Minister which vitiated the Minister’s decision to cancel his visa on character grounds. In response to the Minister’s invitation to make submissions on why the visa should not be cancelled, the applicant said that it would not be in the best interests of his two children, and annexed a letter from his children’s carer. An officer from the Minister’s department then wrote to the applicant saying that the department wished to contact the carer to assess the impact of the proposed cancellation on the children and asked for contact details, which the applicant provided. But no contact was made with the carer and the applicant was not forewarned that the department had had a change of heart. The applicant submitted that he was denied procedural fairness because he had a legitimate expectation, which was not met, that the department would do as it had indicated before any decision was made to cancel his visa. In relation to that submission Gleeson CJ remarked at [34]:

[I]t is clear that the content of the requirements of fairness may be affected by what is said or done during the process of decision-making, and by developments in the course of that process, including representations made as to the procedure to be followed. So, for example, if a decision-maker informs a person affected that he or she will hear further argument upon a certain point, and then delivers a decision without doing so, it may be easy to demonstrate that unfairness is involved. But what must be demonstrated is unfairness, not merely departure from a representation. Not every departure from a stated intention necessarily involves unfairness, even if it defeats an expectation. In some contexts, the existence of a legitimate expectation may enliven an obligation to extend procedural fairness. In a context such as the present, where there is already an obligation to extend procedural fairness, the creation of an expectation may bear upon the practical content of that obligation. But it does not supplant the obligation. The ultimate question remains whether there has been unfairness; not whether an expectation has been disappointed.

148    The fundamental problem for the applicant in that case, according to Gleeson CJ (at [36]), was that no attempt had been made to show that the applicant held any subjective expectation as a result of which he did or did not do anything or that he had lost an opportunity to put any information or argument to the decision-maker or suffered any other detriment. It was for these reasons that “[n]o practical injustice” and no procedural unfairness had been established (at [38]). See also Hayne J at [122].

149    Lam has nothing to do with the question of whether the existence of a right to appeal validates an otherwise invalid decision.

150    The decision of the majority in Bowen is relevantly indistinguishable. Certainly the primary judge did not err in applying it.

151    The leading case on the capacity of an appeal to cure an otherwise invalid decision is the Privy Council’s judgment in Calvin v Carr [1980] AC 574. It is no authority for the proposition that the mere existence of a right of appeal is sufficient. The Privy Council said there was “no clear and absolute rule” because the situations in which the issue arises are so diverse and the applicable rules so “various” (at 592). Nevertheless, their Lordships identified some typical situations in which “some general principle” was discernible.

152    First, where the rules provide for a rehearing by the original body or a fuller or enlarged form of it, “the first hearing is superseded by the second, or, putting it in contractual terms, the parties are taken to have agreed to accept the decision of the hearing body, whether original or adjourned”. Thus, in Bhardwaj at [39] Gaudron and Gummow JJ considered that Calvin v Carr stood for the proposition that, “as a general rule, an administrative tribunal may cure a breach of the rules of natural justice by subsequently providing a proper hearing to the person thereby affected” (emphasis added).

153    Second, the Privy Council in Calvin v Carr went on to observe at 592, however, that “[a]t the other extreme”, there are cases where, after examining the entire hearing structure in the context of the particular activity to which it relates, the courts have concluded that “a complainant has the right to nothing less than a fair hearing both at the original and at the appeal stage”. The examples of the activities it gave included trade union membership and employment. The Privy Council cited the following passage from the judgment of Megarry J in Leary v National Union of Vehicle Builders [1971] Ch 34 at 49:

If the rules and the law combine to give the member the right to a fair trial and the right of appeal, why should he be told that he ought to be satisfied with an unjust trial and a fair appeal? … As a general rule . . . I hold that a failure of natural justice in the trial body cannot be cured by a sufficiency of natural justice in an appellate body.

154    While the Privy Council in Calvin v Carr considered this opinion to be too broadly stated, it went on to say at 593:

It affirms a principle which may be found correct in a category of cases: these may very well include trade union cases, where movement solidarity and dislike of the rebel, or renegade, may make it difficult for appeals to be conducted in an atmosphere of detached impartiality and so make a fair trial at the first–probably branch–level an essential condition of justice.

155    Then there were the “intermediate cases” in which, based on the rules of the organisation in question and “the contractual context”, “those who have joined in an organisation, or contract, should be taken to have agreed to accept what in the end is a fair decision, notwithstanding some initial defect” (emphasis added). In these kinds of cases, it is for the court to decide whether, having regard to the contract and the course of proceedings, there has been “a fair result, reached by fair methods”, such that the parties should be taken to have accepted them when they joined the organisation. Their Lordships emphasised (at 594) that, even where there is an appeal which provides for a hearing de novo, the reviewing court is required to examine the hearing process in the domestic tribunal, both at first instance and on appeal “as a whole”, to determine whether the complainant has had “a fair deal of the kind that he bargained for”. Their Lordships cited Bowen, amongst other cases, as authority in support of the intermediate position.

156    What is absolutely clear from Calvin v Carr is that it is never the right to appeal which cures procedural unfairness at first instance but in some cases “the exercise of such a right… may be taken into account by the courts in considering the grant of discretionary remedies” (at 595).

157    In the present case, since neither Mr Quirk nor Mr Miller exercised their right to appeal, it is unnecessary to consider whether the Divisional Rules provided an appeal which was sufficient to cure the breach of rule 11 by the Divisional Executive. The primary judge considered that “[r]ule 8(xi)(d) provides adequate procedural protections to make that right meaningful” (at [340]). In my opinion it is at least questionable whether the kind of appeal contemplated by rule 8(xi)(d) would be sufficient. Rule 8(xi)(d) states that:

The Divisional Conference shall have power:

…

(d)     To hear and decide any appeal from a Divisional Branch on an issue concerned solely with a matter affecting this Division, from a Divisional Branch or Sub- Branch or member. Any appeal from a member must be forwarded through the Divisional Branch Committee.

Reasonable notice of the time and place of the hearing shall be given to all parties involved, who shall be given an opportunity of being heard. Provided that in the case of an appeal from a Branch of the Union, the Branch shall have the right to appeal any decision of the Divisional Conference or Divisional Executive to the National Executive.

158    It is not clear whether this rule gives the Divisional Conference the discretion to dispense with a hearing, as Mr Quirk and Mr Miller submitted, or whether it gives the affected officer the right to choose to appear and/or provide written submissions. Even so, the appeal is certainly not an appeal in the nature of a hearing de novo. For a start, in contrast to the procedure provided in rule 11, rule 8(xi)(d) does not seem to allow the affected officer the opportunity to cross-examine witnesses. Besides, it is difficult to see how such a large body is equipped to provide justice to an accused person: see Tracey RRS, “Section 141 of the Conciliation and Arbitration Act and Natural Justice” (1976) 18(1) The Journal of Industrial Relations 58 at 65.

159    The Federal Union also submitted that anyone who contends that they were denied procedural fairness bears the onus of establishing that the denial was “material” in that there was a realistic possibility that a different decision could have been made had the conditions of procedural fairness been complied with, citing MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506. The Federal Union argued that the onus Mr Quirk and Mr Miller bore was to establish that, had they attended the hearing, they would have made submissions or raised factual matters that could have convinced the Divisional Executive to not find the charges established and they led “no such satisfactory evidence”. Consequently, any failure to comply with rule 11(a)(ii)(c) was not material and the decision of the Divisional Executive was not invalid.

160    No such argument seems to have been advanced below. In any event, it is misconceived.

161    First, while it may be accepted that not all breaches of the Divisional Rules will lead to invalidity, it is by no means clear that the principle upon which the Federal Union relied applies to a denial of procedural fairness by a domestic tribunal, let alone a breach of rule 11(a)(ii)(c). The principle developed in the High Court’s migration jurisprudence is concerned with the “consequence of a breach of an implied condition of procedural fairness governing the exercise of a statutory power”: WZARH at [57] (Gageler and Gordon JJ); see also MZAPC at [32] (Kiefel CJ, Gageler, Keane and Gleeson JJ). Trade union rules are neither laws nor legislative instruments but contracts between members: Koc v Diamond (No 2) [2022] FCA 640 at [28] (Bromberg J).

162    Even if the same principle is applicable to the Divisional Rules, it does not require that the affected person lead evidence to show that the outcome could have been different. The bar is not so high. “[R]easonable conjecture within the parameters set by the historical facts” will suffice: MZAPC at [38] (Kiefel CJ, Gageler, Keane and Gleeson JJ). As Gageler J observed in Nathanson v Minister for Home Affairs [2022] HCA 26; 96 ALJR 737; 403 ALR 398 at [33], this standard is “undemanding” and “[t]here will generally be a realistic possibility that a decision-making process could have resulted in a different outcome if a party was denied an opportunity to present evidence or make submissions on an issue that required consideration”.

163    In the present case, the alleged rule breaches were serious and substantial. It stands to reason that the result could have been different if Mr Quirk and Mr Miller were able to hear the evidence against them, exercise their rights to cross-examine, lead evidence in response and make submissions. The evidence adduced by them before the primary judge supports this conclusion. The only circumstance in which one could reasonably conclude otherwise is if the Divisional Executive were “invincibly biassed” against them (AWU v Bowen at 631 per Dixon J). The Divisional Executive’s decision to proceed with the matter in the circumstances was beyond its power.

164    It follows that the primary judge did not err in his conclusion that the decisions of the Divisional Executive were invalid and appeal grounds 3 and 4a must be dismissed.

Did the charges brought against Mr Quirk and Mr Miller, and heard by the Divisional Executive, under rule 11 of the Divisional Rules concern allegations that they had engaged in gross misbehaviour as alleged and, if so, were the matters with which they were charged correctly characterised (issues 1 and 2; appeal ground 1; and contentions 1, 2 and 4)?

165    Having regard to my conclusions on the first two issues, it is strictly unnecessary to resolve this question. Nevertheless, I propose to do so anyway in case the Federal Union chooses to convene a hearing at which Mr Quirk and Mr Miller have the opportunity to participate.

166    It is plain from the words used in the charges (set out at [59] and [60] above) that each of them concerned allegations that Mr Quirk and Mr Miller had engaged in gross misbehaviour in each of the respects raised by issue 1. No challenge was made to the primary judge’s conclusion (at [161]) that, in the context of an allegation of gross misbehaviour”, allegations that claims or statements were “false” should be taken to be allegations that the claims or statements were “knowingly false”. The question is whether, on a proper construction of rule 11(1), the matters charged were capable of amounting to “gross misbehaviour”.

167    As the primary judge observed (at PJ [94]), rule 11 is authorised in the case of officers by s 141(1)(c)(iii) of the FWRO Act. Section 141(1)(c)(iii) of the FWRO Act states that the rules of an organisation “may provide for the removal from office of a person elected to an office in the organisation only where the person has been found guilty, under the rules of the organisation, of … gross misbehaviour or gross neglect of duty”. There was a dispute below about whether Mr Quirk and Mr Miller were officers within the meaning of s 141(1)(c)(iii) of the FWRO Act, a dispute the primary judge resolved in the negative. Nevertheless, it was common ground that the term “gross misbehaviour” in rule 11 “must import the same standard” as the same term in s 141(1)(c)(iii) (PJ [100]). That must be so. Section 141(1)(c) is substantially identical to s 133(1)(f) of the Conciliation and Arbitration Act 1904 (Cth) (C&A Act). A rule which is contrary to a provision of that Act is invalid: In Hawkins v Willis (1981) 38 ALR 319; 58 FLR 364 at 374 (Smithers and Evatt JJ).

168    “Gross misbehaviour” is not defined in the FWRO Act or the Divisional Rules. It was common ground that, in the industrial context, the term denotes behaviour constituting “a marked departure from the standards by which responsible and competent union officials habitually govern themselves” (Cook v Crawford [1981] FCA 16; 52 FLR 1 at 65 per Evatt J). In that case, Evatt J said that “[t]he best judges of the requirements of such standards and the degree of departure therefrom were the members of the [union] executive”. See also Joyce v Christoffersen (1990) 26 FCR 261 at 268 (Gray J). On a hearing before a court, the court considers whether reasonable people acting honestly could have come to the same conclusion as the domestic tribunal (Bowen at 615; Cleworth v Barrow (1978) 20 ALR 359 at 369 per JB Sweeney, Evatt and Keely JJ) unless, on a proper construction of the union rules, the existence of gross misbehaviour is a jurisdictional fact (Joyce at 267–8).

169    The Federal Union submitted that it was not open to the primary judge to hold that adverse and false public comments about an organisation by elected officials and employees of the organisation could not constitute a marked departure from the standards by which responsible and competent union officials habitually govern themselves. The Federal Union said that it was open to the Divisional Executive to find that the conduct in question was conduct which constituted a marked departure from the standards by which responsible and competent union officials habitually govern themselves.

170    In McPaul v Williams (1990) 34 IR 288, decided four months after Joyce, Gray J considered a resolution which prohibited a member of the State branch of the Transport Workers Union from assisting in the distribution of any journal or publication unless it was a publication that had first been approved in writing by the branch committee of management. The premise for the resolution was that, under the union’s rules, sub-branch officers were subject to the control and direction of the branch committee of management.

171    Gray J held (at 294) that:

[A] rule which expressly allows a decision-making body of a registered organisation to exercise a power of censorship over communications between members of the organisation will contravene the [C&A] Act. Such a power of censorship is incompatible with the object of encouraging the democratic control of organisations and the full participation by their members in the affairs of organisations, which is now found in s 3(g) of the [C&A] Act. If an express rule enabling particular action would be in contravention of the [C&A] Act, a general rule, relied on as the source of power to carry out the same action, will be construed so as not to enable that action. See generally Porter v Dugmore (1984) 7 IR 120; 3 FCR 396. The rules of the union must therefore be construed as not enabling the committee of management to resolve in terms of par (e) of the resolution of 15 March 1990. That paragraph cannot be read down or severed in such a way as to make it valid in part. Even if it concerned only unauthorised publications with the union, it would not be valid. It cannot therefore be relied upon to support any order against the respondent in the present case.

172    His Honour relied on Wiseman v Professional Radio & Electronics Institute of Australasia (1978) 35 FLR 24; 20 ALR 545 at 555–6 per Evatt and Northrop JJ, with whom Keely J agreed at 568. Wiseman was concerned with a rule (r 15) in these terms:

INJURIOUS REPORTS NOT TO BE CIRCULATED

No official or member of the Institute shall circulate or cause to be circulated any report which may be considered by the Governing Council to be detrimental to the well-being of the Institute or calculated to injure any member thereof.

173    Evatt and Northrop JJ said:

In our opinion, r 15 imposes upon members of the Institute, conditions, obligations or restrictions which, having regard to the objects of the [C&A] Act, are oppressive and unreasonable. Members of the Institute are to be encouraged to participate fully in the affairs of the Institute and its democratic control. A member may be opposed to a policy adopted by the Governing Council. He may try to persuade other members that the Governing Council has adopted a policy detrimental to the well-being of the Institute… In either of these circumstances, if the member circulates a report stating his policy and containing criticisms of the policy being enforced by the Governing Council, the Governing Council may consider the report detrimental to the well-being of the Institute and, having formed this opinion, cite the member to appear before it and then sit in judgment of the member so cited … No objective standards are laid down to describe conduct which may be detrimental to the well-being of the Institute and thus there are no standards by which a member is able to decide whether his proposed activity is contrary to the provisions of r 15. The standards, if any, are purely subjective to the members of the Governing Council. Further, the Governing Council is both prosecutor and judge. The proscribed conduct is so vague and uncertain that it is impossible for a member to know in advance whether he is committing an offence or not. In this manner the rule is oppressive in the sense of its ordinary meaning of unjustly burdensome or harsh. Further the rule is unreasonable in the sense that it goes beyond what is fair or equitable.

174    The primary judge was taken to a number of other authorities to like effect. It is not necessary to refer to them all.

175    It follows that rule 11 must be construed so as to prevent the exercise of a power of censorship over communications between members of the Federal Union regardless of the manner in which it occurs or the form it takes. Consequently, “gross misbehaviour” does not include communications between or to Federal Union members at least to the extent that the behaviour in question does not contravene the law. While the communications the subject of the charges levelled against Mr Quirk and Mr Miller were made through the media, it is reasonable to infer that their target audience was (or at least included) the membership of the Federal Union.

176    The FWRO Act does not admit of a different approach.

177    The objects of the FWRO Act are set out in s 5, which provides as follows:

Parliament’s intention in enacting this Act

(1)    It is Parliament’s intention in enacting this Act to enhance relations within workplaces between federal system employers and federal system employees and to reduce the adverse effects of industrial disputation.

(2)     Parliament considers that those relations will be enhanced and those adverse effects will be reduced, if associations of employers and employees are required to meet the standards set out in this Act in order to gain the rights and privileges accorded to associations under this Act and the Fair Work Act.

(3)    The standards set out in this Act:

(a)    ensure that employer and employee organisations registered under this Act are representative of and accountable to their members, and are able to operate effectively; and

(b)    encourage members to participate in the affairs of organisations to which they belong; and

(c)    encourage the efficient management of organisations and high standards of accountability of organisations to their members; and

(d)    provide for the democratic functioning and control of organisations; and

(e)     facilitate the registration of a diverse range of employer and employee organisations…

(Emphasis added.)

178    Section 142(1)(a) relevantly provides that the rules of an organisation must not be contrary to the FWRO Act or the FW Act. Section 142(1)(c) prohibits the imposition by an organisation’s rules of conditions, obligations or restrictions on applicants for membership or members that are “oppressive, unreasonable or unjust”, having regard to Parliament’s intention and the objects of the FWRO Act and the FW Act.

179    The Federal Union did not argue that Wiseman was wrongly decided. Rather, it submitted that it was distinguishable because it was concerned with members, not officers. It argued that, as employees and elected officials, Mr Quirk and Mr Miller were in a fiduciary relationship with the Federal Union and were required to exercise powers and discretions in the interests of the Federal Union (see John Alexander’s Clubs Pty Ltd v White City Tennis Club Ltd (2010) 241 CLR 1 at [87] (French CJ, Gummow, Hayne, Heydon and Kiefel JJ)).

180    I am not persuaded that the distinction matters. Mr Quirk and Mr Miller were not just officers; they were also union members. Moreover, the fact that Mr Quirk and Mr Miller were in a fiduciary relationship with the Federal Union does not mean that the rule is properly invoked to inhibit communication with members of the Federal Union, whether direct or indirect, about matters affecting the management of the Federal Union. Such a construction would be inconsistent with the objects of the FWRO Act. It would discourage, not encourage, the efficient management of the organisation and high standards of accountability. And it would inhibit the democratic functioning and control of organisations. The democratic functioning and control of organisations is not limited to the election process. Democracy does not give way to autocracy after an election. As elected representatives, union members who are officers from a minority faction are entitled, if not obliged, to speak out against the ruling faction. So, too, is any individual officer.

181    It follows that I am not satisfied that the primary judge erred in holding that the conduct with which Mr Quirk and Mr Miller were charged could not be “gross misbehaviour” within the meaning of rule 11 and it was not open to the Divisional Executive to convict them of the charges. Ground 1 of the appeal must therefore be dismissed. It is unnecessary in the circumstances to resolve any of the issues raised by issues 1, 2, 4 and 5 of the notice of contention (as amended).

What is the standard of review applicable to decisions of domestic tribunals like the Divisional Executive (issue 2A, ground 1, contention 6)?

182    In these circumstances it is also unnecessary to determine this question. In any event, I struggle to understand how the result would have been any different if his Honour had applied the test Mr Quirk and Mr Miller said he should have.

Damages for breach of contract

For how long would Mr Quirk and Mr Miller have remained in employment anyway (issues 6 and 9, appeal ground 5, cross-appeal ground 1 and contention 1 to the cross-appeal)?

183    The primary judge held at [355] that Mr Quirk and Mr Miller would have remained in employment until their terms of office expired on 1 January 2017 and not a moment longer. Both sides argued that this was an erroneous finding.

184    The primary judge reasoned at [21]–[23]:

[U]pon their election as organisers a new contract of employment came into existence under which the Federal Union and State Union employed them as elected organisers in the service of the Divisional Branch. An implied term of that contract was that the employment was coterminous with the holding of the office to which they had been elected: Mylan v Health Services Union NSW [2013] FCA 190 (‘Mylan’) at [26] per Buchanan J (‘I have no doubt that any employment which Mr Mylan may have held with the union was co-extensive with holding office in the union and depended on that circumstance.’). It is apparent from Mylan that Buchanan J accepted that this conclusion rested upon the existence of an implied term. I respectfully agree with his Honour that such a term would be implied into the contract of employment. If such a term were not implied an elected officer would remain employed as such even if he or she failed to be elected at the next election.

The effect of Rule 49(a) was that whilst Mr Quirk and Mr Miller remained in office their employment could not be terminated without breaching that rule. In practical terms, Rule 49(a) made the acquisition of a position as an elected organiser more attractive than the position of an ordinarily contracted one. It provided a limited form of tenure subject only to the whimsy of election and Rule 11.

On the other hand, the effect of the implied term was that if an elected organiser ceased to hold office the employment contract would be at an end. In practical terms, there would appear to be four ways an elected officer might cease to be such. These are: (a) losing an election; (b) all of the offices of a union being vacated upon the appointment of an administrator to manage its affairs (as occurred in Mylan with the Health Services Union); (c) being removed from office under Rule 11; and, (d) resignation.

185    His Honour concluded (at [344]–[345]) that the decision of the Divisional Executive to remove Mr Quirk and Mr Miller from office under rule 11 was invalid but that the letter from Ms Mallia of 27 April 2015, which asserted that the employment relationship had ended once the decision had been made, was a repudiation of their contracts of employment which they accepted by acquiescing in that incorrect assertion.

186    By ground 5(a) of the appeal the Federal Union pleaded that the primary judge erred in finding that each of Mr Quirk and Mr Miller was entitled to damages for breach of contract totalling $189,428.59 in that the primary judge erred in finding (at [355]) that they would have remained in the employ of the Federal Union until their four year terms expired at the end of 1 January 2017.

187    The Federal Union argued that, if it succeeded on ground 1 but failed on grounds 2-4, then it was legally open to the Divisional Executive to move to remove Mr Quirk and Mr Miller from office for speaking to the media as long as it complied with the procedure prescribed by rule 11(a)(iii). Since the evidence disclosed that the Divisional Executive met every three months, it submitted that the Court should find that the Divisional Executive would have moved to remove them at its next meeting and damages should be limited to the amount they would have earned in that three-month period.

188    By ground 1 of their cross-appeal, Mr Quirk and Mr Miller pleaded that the primary judge erred in finding that, upon their election to office, their existing employment contracts were terminated and they entered into “fresh” four-year fixed term contracts containing an implied term that their employment was coterminous with their periods in office (the implied term) such that they were only entitled to damages for the balance of the fixed term, rather than damages equivalent to their salaries during a period of reasonable notice. The particulars read as follows:

a.    The primary judge erred in law in finding that the terms of rule 49(a) of the Rules of the Construction and General Division of the Appellant (the Divisional Rules) compelled the result that the Cross-Appellants' previous employment contract was terminated and there was a new contract of employment that was coterminous with holding office. While rule 49(a) provides a member elected to any position must be employed full time, it does not provide or have the effect that any existing employment contract is terminated and that it must be replaced by a new employment contract that will come to an end once a member ceases to hold an elected position.

b.    The primary judge erred in law in finding that there was an implied term at law that the employment contract was coterminous with holding office contrary to evidence of a different custom or practice where elected officers continued employment with the Cross-Respondent after ceasing to hold office unless terminated.

c.    The primary judge erred in law by finding that the Cross-Appellants were only entitled to damages for loss of employment until 1 January 2017.

d.     The primary judge erred in law by finding at PJ [357] that the Cross-Appellants were not entitled to reasonable notice by virtue of the nature of the employment contract being prescribed by rule 49(a) of the Divisional Rules.

…

189    It is convenient to deal first with the issue raised by ground 1 of the cross-appeal.

190    The relevant principles were set out in the joint judgment of Gleeson CJ, Gaudron, McHugh and Hayne JJ in Commissioner of Taxation (Cth) v Sara Lee Household & Body Care (Australia) Pty Ltd (2000) 201 CLR 520 at [22]:

When the parties to an existing contract enter into a further contract by which they vary the original contract, then, by hypothesis, they have made two contracts. For one reason or another, it may be material to determine whether the effect of the second contract is to bring an end to the first contract and replace it with the second, or whether the effect is to leave the first contract standing, subject to the alteration. For example, something may turn upon the place, or the time, or the form, of the contract, and it may therefore be necessary to decide whether the original contract subsists.

191    The contracts were new contracts or at least variations of the old contracts, as the written submissions on the cross-appeal appeared to accept (at [3]), although Mr Seck, who appeared for Mr Quirk and Mr Miller with Mr Whitbread, doggedly maintained otherwise during oral argument. Indeed, he went so far as to argue that there was no offer and acceptance.

192    I am not persuaded that the primary judge erred in concluding that Mr Quirk and Mr Miller entered into a new contract of employment with the Federal Union (and also the State Union) when they became elected officials and that the contract was for a fixed term of four years. Moreover, I am persuaded that his Honour was correct. The offers were made by Mr Quirk and Mr Miller standing for election. Upon election, the Federal Union accepted the offers and, it seems, the State Union provided them with employment, too. Mr Seck argued that the employment relationship of four years “operates” under the Divisional Rules, not under the contract. But the Rules identify the terms of the contract and they differ from the terms of the contracts under which each of the men was formerly employed. In any event, as the Federal Union submitted, there was a profound change to the duties and responsibilities of Mr Quirk and Mr Miller upon their election and the basis and nature of their legal relationship with the Federal Union was fundamentally changed by it. In such circumstances, a court will more readily hold that a new contract came into existence and replaced the old one: Quinn v Jack Chia (Australia) Ltd [1992] 1 VR 567 at 576–7 (Ashley J). In that case, the court held that a far-reaching change in the plaintiff’s situation which was “not within the original contemplation of the parties and not comprehended by [their original contract]” gave rise to a fresh contract of service, not merely a variation of the original one: Quinn at 577–8.

193    That a new contract was formed upon their election to office is evident from the Divisional Rules.

194    As the primary judge observed at [15]:

Rule 38(b) provided that each elected position, including that of an organiser, was for a continuous period of 4 years commencing on 2 January in the year following the election. In this case, because the election was held on or prior to 11 October 2012, it follows that Mr Quirk and Mr Miller commenced the relevant term of office on 2 January 2013 and would, in the ordinary course of events, have remained in office until the end of 1 January 2017.

195    Rule 49 reads as follows:

FULL TIME PAID OFFICERS

(a)    A member who has been elected to any positions in a full-time capacity shall be employed full time in the service of the Divisional Branch and be paid such weekly wage as shall be determined at a properly constituted meeting of the Divisional Branch Council; provided however, that the rate fixed shall not be less than the leading hand rate in the highest major Award for carpenters in the building industry.

(b)    Full-time paid officers shall be under the control of the Divisional Branch Management Committee between Divisional Branch Council meetings and shall carry out all instructions of the Divisional Branch Council or Divisional Branch Management Committee in accordance with the Rules.

(c)    Should a full-time paid officer desire to resign they shall give one (1) month’s notice in writing of his intention so to do to the Divisional Branch Management Committee.

(d)    A full-time paid officer shall not work for any other person, body or corporation for profit or reward, or at all, during their term of office without the sanction of the Divisional Branch Council first being obtained.

(e)    Should any full-time officer through illness or any other physical disability be unable to carry out the duties as prescribed by the Rules, the officer shall furnish a medical certificate to the Divisional Branch Management Committee within seven days of becoming unable to carry out the duties setting out the nature of the disability, and the duration of such incapacity so far as the same can be estimated, and before resuming duties the officer shall furnish to the Divisional Branch Management Committee a medical certificate setting out that he/she has recovered and is capable to carry out the duties in accordance with the Rules.

196    The primary judge observed at [20] that a possible view of rule 49(a) is that it gave rise to an employment relationship “by itself” but neither party suggested as much and the rule does not specify any of the usual matters which one would expect to find in a contract of employment, such as a reference to their leave entitlements.

197    Reading rule 38(b) with rule 49(a), each of Mr Quirk and Mr Miller was employed on a fixed term contract for four years. Before their election their employment with the Union could be terminated on reasonable notice, but not thereafter.

198    During argument on the hearing of the appeal and cross-appeal, Mr Seck accepted that, if the primary judge was right to hold that there was a new contract, it contained the implied term: see Mylan v Health Services Union NSW [2013] FCA 190 at [26] (Buchanan J), to which his Honour referred at [21] of his reasons. It was implied to ensure the business efficacy of the contract given that rule 49(a) required the Federal Union (or, as the primary judge said at [21], the State and Federal Unions) to employ them for the duration of their elected terms. In these circumstances, damages are equivalent to the salary or wages over the residue of the fixed term, subject to the risk of ill-health and the possibility of lawful termination (Macken at 461; Rothenberger Australia Pty Ltd v Poulsen (2003) 58 NSWLR 288 at [29] per Barrett J).

199    The remaining question raised in the cross-appeal is that the primary judge erred in finding that their employment contracts were coterminous with the duration of their offices because the finding was contrary to the evidence of a different custom or practice in the Division that elected officers continued employment after ceasing to hold office unless otherwise terminated by the Union. The short answer to this question is that any such custom or practice was irrelevant as their employment was terminated.

What damages are Mr Quirk and Mr Miller entitled to? Should the damages be reduced because of their unwillingness to perform work and pay membership fees, failure to work for a significant period, and in the case of Mr Miller his travel to Scotland in 2015 (issues 7 and 10, appeal ground 5)?

200    These questions are raised by particulars (b) and (c) of appeal ground 5 by which the Federal Union pleaded that the primary judge erred in his assessment of damages by failing to find or consider that:

b.    [B]etween 27 April 2015 and 1 January 2017, [Quirk] was not ready, willing and able to work as an Organiser with the [Federal Union] because he was not fit for work and was receiving workers compensation payments, he was not willing to work at the union with the current leadership and he had ceased paying union membership dues as at about 8 May 2015;

c.     [B]etween 27 April 2015 and until at least 31 May 2016, [Miller] was not ready, willing and able to work as an Organiser with the Appellant because he was not fit for work and was receiving workers compensation payments, he travelled overseas for a substantial period and he had ceased paying union membership dues as at about 8 May 2015[.]

201    The primary judge awarded Mr Quirk and Mr Miller the full value of their salaries for the residue of their terms of office. He declined to award them other contractual entitlements, such as accrued holiday pay because the claim did not include them.

202    The principle which governs the award of damages at common law for breach of contract is that a party who has suffered a loss by reason of the breach is to be placed, as far as money can do, in the same situation as if the contract had been performed: Robinson v Harman (1848) 1 Exch 850 at 855; 154 ER 363 at 365; [1843-60] All ER Rep 383 at 385 (Parke B); Haines v Bendall (1991) 172 CLR 60 at 63 (Mason CJ, Dawson, Toohey and Gaudron JJ); Tabcorp Holdings Ltd v Bowen Investments Pty Ltd (2009) 236 CLR 272 at [13] (French CJ, Gummow, Heydon, Crennan and Kiefel JJ). In a case of wrongful dismissal, the measure of damage is the amount of the wage or salary the employee has been prevented from earning less anything the employee earned or might have earned if “by due diligence” they could have obtained similar suitable employment elsewhere during the relevant period: Bagnall v National Tobacco Corporation of Australia Ltd (1934) 34 SR (NSW) 421 at 429 (Jordan CJ, Stephen and Markell AJ agreeing at 430).

203    The Federal Union argued that no damages were payable because Mr Quirk and Mr Miller did not prove that they suffered any loss of income as a result of its repudiation of their contracts of employment. It submitted that, at the time their employment was terminated, they had not been performing work for some time and had provided WorkCover certificates demonstrating that they were not fit to do so. It also submitted that their evidence was that they were unwilling to work for the Federal Union under its current leadership and their disillusionment was “manifest” from the time they stopped paying membership dues on 8 May 2015. In addition, it referred to Mr Miller’s overseas absences during 2015 after he had been removed from office. It argued that an employer is only obliged to pay employees for work performed or for making themselves available for work (referring to Leggett v Hawkesbury Race Club Ltd (No 3) [2021] FCA 1658; 317 IR 1 at [157] per Rares J and Automatic Fire Sprinklers Pty Ltd v Watson (1946) 72 CLR 435 at 463–4 per Dixon J) and, since neither Mr Quirk nor Mr Miller was ready, willing or able to perform his duties as an organiser, no damages were payable.

204    Mr Quirk deposed that he had been on leave since 11 October 2013, first taking sick leave, then “gardening leave” (being suspended from work on full pay) until 1 January 2014, sick leave again until he made a successful claim for workers’ compensation, and never returned to work. He was on workers’ compensation for about 12 months before his employment was terminated in April 2015. He deposed that since 20 April 2015 he had “suffered a significant deterioration in [his] mental wellbeing”. His marriage broke down in about March 2016 and around the middle of 2016 he suffered “a further breakdown”. In cross-examination, however, Mr Quirk testified that in April 2016 he “could do everything, provided [he] was given a safe workplace”. He also testified that he was unable to work for the Federal Union from mid-2016 until the beginning of 2019. He did not say he was unable to work anywhere else. No evidence was apparently adduced that he worked anywhere else but the Federal Union did not plead that he failed to mitigate his loss.

205    At the trial Mr Docking, who was appearing at the time for the Unions, submitted that there was no evidence to indicate when Mr Quirk would have been fit enough to defend the charges or to return to work, referring to his “breakdown” in 2016.

206    At [360] the primary judge said of this submission:

Another matter I propose to do nothing with is the Respondents’ submission that Mr Quirk had a nervous breakdown in mid-2016. It was said that he would have been unable to work from that time. However, I do not feel that the evidence is sufficient to embark on that kind of analysis. What was the cause of the nervous breakdown? Was it related to Mr Quirk’s loss of employment? Would it have been covered by workers compensation? I do not think that a case of this kind can be mounted from the thin evidentiary foundation on which it rests.

207    The evidence did not disclose what, if any, effect the breakdown of Mr Quirk’s marriage or the “further breakdown” may have had on his capacity to work. The cross-examination on this question was this:

And I don’t want to intrude upon this, other than you mention it in your own affidavit, you say, in mid-2016, you had a breakdown and received extensive treatment with a slow recovery?---Yes.

I’m only reflecting what’s in your affidavit. So, as best you can recall, from that date and during your slow recovery, you were unable to work as an organiser with the union?---Well, I had been sacked, so that was self-evident.

So you accept you could not work as an organiser with the union?---Not at that stage, no.

And - - -?---I mean, I – yes, go on.

As best you can recall, how long did that slow recovery take place in terms of weeks or months?---I’m just trying to recall. It would have – what, it’s [2020]. It would have taken two years, two and a half years. Beginning of last year, really.

And during all of that period, you were unable, for those reasons you’ve described, work as an organiser for the union whilst you were undertaking that slow recovery?---Yes.

208    The effect of Mr Quirk’s evidence is that, if his contract had not been repudiated, he could have continued to work for the Federal Union provided it adhered to its duty as his employer to provide and maintain a safe place of work. No submission was made that his evidence was false or otherwise unreliable and therefore should not have been accepted.

209    Mr Miller deposed that he took sick leave from 18 September 2014 “due to the stress and sleep deprivation [his] excessive workload was causing [him]”. The following day, according to his affidavit, he met with the Australian Federal Police to discuss “problems” with the Union. It will be recalled that it was not until October 2014 that his comments about the Union were published in the media and November 2014 when he was summonsed to appear before the Divisional Executive.

210    On 16 April 2015 Mr Miller faxed to the Federal Union a letter from a psychologist, whom he had consulted three days earlier. The psychologist reported that Mr Miller was suffering from an adjustment disorder with depressed and anxious mood due to a work incident in September 2014 and, “[d]ue to the ongoing psychological distress” was “unfit to attend a summons or further work meetings” for two months. As the primary judge noted at [75]–[77], a WorkCover certificate from a Dr Nguyen indicated that Mr Miller “had ‘capacity for some type of employment’ from 24 March 2015 to 24 April 2015 and this was for normal hours on normal days”, albeit that mediation should take place before he resumed work and that he should avoid contact with certain people and undertake “suitable duties” in a safe working environment consistent with the Union’s legal obligations and the relevant work health safety legislation. When Dr Nguyen saw him again on 13 April 2015, four days before the Divisional Executive meeting at which the fatal resolution was passed, Dr Nguyen wrote that Mr Miller suffered from “severe anxiety, depression, insomnia and poor concentration” and was “unfit to attend a summons from 13/4-13/6/2015”.

211    Mr Miller travelled to Scotland on a number of occasions in 2015, after his employment was terminated. He explained the circumstances in his affidavit:

Between 20 April 2015 and 31 May 2016, I was unemployed. My mother was diagnosed with Alzheimer's disease in 2015 and I returned to Scotland several times because I am her only son and had to attend to her medical treatment. During this time, I made about [a] dozen applications to various construction companies to be a Safety Officer but was unsuccessful. I applied for positions through “LinkedIn” and “Seek.com” and was informed by each of the prospective employers by email that I was not successful in obtaining an interview.

212    In cross-examination he was asked how long he was in Scotland on each occasion. This was the exchange:

I had to go back to Scotland, and I stayed – I was over there for a while, because mother had - - -

Yes?--- - - - Alzheimer’s.

That’s in your affidavit about your mother?---Yes.

And I’m not trying to intrude on personal - - -?---Yes.

- - - issues unduly, but can you explain that – given you raised it – for how long, on each occasion, were you back in Scotland?---The first time would be maybe – I think it might have been, say, four months or five months or something like that, I think. And then I had to come back, because the – I think Chris McArdle told me there was – we had to go to court over this issue, and then I had to leave and come back here when ..... yes, as far as I remember.

So you were back in Australia just for a short period? How many weeks? Or days?---No. I was back – I was back for a reasonable period of time, I think, then. I had to go back again because she died and then I had to go back for the burial, but I did stay for a period of time where I think maybe I got employed then with the bus companies, but then I had to go back again. So I was back and forward.

Yes. You indicate, “I returned to Scotland several times,” you’ve dealt with how many months for the first occasion. The next occasion, how long were you back in Scotland for?---That wasn’t as long. Gee. My – it would be – it would definitely be under a month.

And was there another occasion? You use the expression “several”?---Yes. I thought there was, but I’m just trying to think. No. I think it was twice. Yes.

It might have been more and you’ve forgotten?---No. I think – I’m pretty sure it was twice. Yes.

213    On 31 May 2016 he commenced working casually as a coach/bus driver. He testified that he was not well enough in 2016 to nominate for a further term as an elected organiser.

214    The Federal Union also submitted that Mr Quirk and Mr Miller were not willing to perform work for it under its current leadership. It contended that their disillusionment with the Federal Union was “manifest from their cessation of payment of membership dues”.

215    The primary judge rejected a submission to the same effect (at [358]). He did so because he considered it clear that the cessation of their membership was “part of the sequelae flowing from the termination of their employment and ought not to be considered as part of the counterfactual”. No persuasive case was made to suggest that this conclusion was not open to his Honour. Even so, they stopped paying membership fees roughly three weeks after their employment was terminated. The conclusion that they did so for that reason is irresistible.

216    The Federal Union pointed to the following exchanges in the cross-examination of Mr Quirk (at T220/16–46 and T221/21–32):

Assuming that was provided, which work could you do? I’m – otherwise - - -?---Assuming that that had been provided and I was happy with it, okay. Let’s go through this. You – you couldn’t honestly be a member of the CFMEU and perform any of these duties. That’s my honest answer, your Honour.

Are you saying – I appreciate you were on workers comp by 10 July 2014. You never returned to work, did you?---No.

So you don’t know what work - - -?---Okay. Well - - -

- - - people were performing

HIS HONOUR: Let me give an example. Let’s say Mr Docking had a car accident and he was off work for a couple of months, and then he got a medical certificate that said he was fit to come to court three days a week, but, unfortunately, one of the people he had to appear in front of was me and his particular view was that I was such a stroppy judge to appear in front of he couldn’t possibly appear in front of me, and he has got this medical certificate which says he can work three days a week. What’s really being asked, I think, is Mr Docking’s case, what are the kind of duties the medical certificate was talking about that he could do and not what particular difficulties he might have with me. I don’t know if I’ve explained that clearly enough?---I think it makes perfect sense - - -

Okay. Well - - -?--- - - - what you’ve said, your Honour. But what I’m saying is that, to paraphrase that thing, if – if you like, Mr Docking couldn’t work with any judge in the Federal Court because Mr Docking was of the opinion that the court was corrupt and wasn’t carrying out its functions.

Okay. So you do get the point. Okay. I shall pass that on, Mr Docking.

…

THE WITNESS: If I felt that I had a safe working environment that was non-corrupt, I could have done all of this. I had none of that, so it was impossible to go back three days and do it. To give you an example of something that is pretty simple:

…become familiar with and understand the workings of the union’s administrative procedures in order to provide quality information and service to members.

I was fully familiar with the union’s administrative functions, and I was well aware that they weren’t being obeyed and people were being victimised contrary to those policies, which was why I wanted a safe working environment.

217    I do not accept the submission about Mr Quirk and Mr Miller not being willing to work under the Federal Union’s current leadership.

218    First, the submission goes further than what is pleaded in the notice of appeal. The point is contained only in ground 5(b), which relates solely to Quirk.

219    Second, the passages in the transcript upon which the Federal Union relied do not establish that Mr Quirk was not willing to work under its current leadership. It is equally possible that, but for his removal from office and his consequent termination, Mr Quirk would have remained in his position as an organiser and worked to topple the leadership at the next election.

220    The point about Mr Miller’s absences in Scotland in 2015 was all but abandoned in oral argument. At most it can be said that it was faintly put. Mr Gibian SC, for the Union, merely submitted (at T194/39–46):

And there’s also an issue about him being overseas as well, for various periods. Now, I’m not sure how highly I can put that, because there might be a question about whether he would have done that or not done that if he had still been an officer. So I’m not sure I can put that. I mean, his mother was unwell, as I understand it, and he may have visited, but maybe he wouldn’t have gone for as long if he had still been engaged by the union; I don’t know. But that’s the evidence so far as he’s concerned.

221    In any event, had Mr Miller still been employed at that time, there is no reason to suppose that he would not have been able to take paid leave on those occasions, whether compassionate, annual or long service leave. He had worked for the Union for nearly 30 years so it is likely that he would have had at least some available accrued leave.

222    Mr Quirk and Mr Miller made no submissions about the significance (or otherwise) to the assessment of damages of their pre-existing unfitness for work.

223    The general rule in contract law is that damages are assessed as at the date of the breach although there are many exceptions and evidence as to income actually lost is obviously admissible: Wenham v Ella (1972) 127 CLR 454 at 473–4 (Gibbs J).

224    In the present case it is clear from the evidence that both men received workers’ compensation and/or sick leave for a long period that predated the repudiation of their contracts of employment and continued until at least April 2016. I take it to be common ground that the workers’ compensation payments are not refundable. Nor are sick leave payments. The primary judge took neither of these matters into account. It is trite that a party may not recover twice for the same loss: see, for example, Clark v Macourt (2013) 253 CLR 1 at [26] (Crennan and Bell JJ) and at [60] (Gageler J). A party is not entitled to be put in a superior position by an award of damages: Commonwealth v Amann Aviation Pty Ltd (1992) 174 CLR 64 at 82 (Mason CJ and Dawson J). Nor did his Honour consider whether Mr Quirk and Mr Miller were in fact incapable of working.

225    Nevertheless, I have come to the conclusion that the primary judge did not err by declining to take into account the inability of both men to work during that period.

226    I have come to that conclusion essentially for two reasons.

227    First, at trial, save for the argument about Mr Quirk’s breakdown, the Unions did not contend that, if their contracts had been breached, Mr Quirk and Mr Miller had suffered no damage (or that their damages should be reduced) because they were unfit for work throughout what remained of their terms of office.

228    Second, the burden of proving that they were unable to work or earn income falls upon the Unions. Save for Mr Miller’s earnings from his casual work as a coach driver, it does not appear that the Unions ever discharged that burden. Certainly no mention of the amounts was made in either the written or oral submissions. Nor was the Court referred to any evidence of them.

229    At the hearing of the appeal the parties assumed that the burden on the Unions was only an evidential one. That was a false assumption. As with the burden of proving a failure to mitigate loss, however, the burden of proving that the loss has been mitigated is a legal one.

230    As Giles JA explained in Tasman Capital Pty Ltd v Sinclair (2008) 75 NSWLR 1 (an authority to which neither side referred the Court) at [72]:

The wrongfully dismissed employee’s loss is measured by the salary and wages and other contractual benefits of which he has been deprived less the salary or wages and other financial benefits which he received or acting reasonably should have received from the exercise of earning capacity freed up by the dismissal. But it is not correct that the employee has the onus of proving his loss so measured.

231    After a careful analysis of the case law and some of the leading texts, his Honour concluded that, as damages are assessed as at the date of the breach, the burden lies with the employer to prove both “avoidable loss” and “avoided loss”. Both McColl JA (at [76]) and Young CJ in Eq (at [77]) agreed. As Young CJ in Eq put it at [94], in that case, where the damages as at the date of dismissal were the wages the plaintiff would have earned for the period during which notice should have been given, that is what the plaintiff had to prove; “[a]ny offset as a result of what happened afterwards is for the defendant”.

232    That the burden of proof is the legal burden is abundantly clear from Munce v Vinidex Tubemakers Pty Ltd [1974] 2 NSWLR 235 at 239. There, Glass JA observed (Moffitt P and Hutley JA agreeing at 236–7):

There is authority of long standing which establishes an exception to the principle that the plaintiff bears the onus of proving all matters relating to damages. The exception relates to any disputed question which is truly a matter of mitigation of damages. In relation to questions properly so classified the defendant ... must not only introduce evidence that the plaintiff has failed to minimize his loss, but also persuade the jury that the balance of testimony favours this conclusion…

233    Quirk deposed that he received workers’ compensation payments for 12 months before his employment was terminated in April 2015 and for a further 12 months. It is reasonable to infer that this was a reference to weekly payments rather than payments of medical and like expenses. But the basis upon which they were paid is unclear. That is to say, it is unclear whether the incapacity for work throughout the period in question was total or partial.

234    Miller deposed that he had intended to stay on in his role at the Federal Union until he turned 70 as he liked it and was good at it.

235    On the face of things Mr Quirk must have had some capacity for work at least for a period after his employment was terminated. He certainly appears to have thought he did, as he deposed that for the first five months after his termination he applied for “around 150 jobs, around 8 applications per week”, mostly for “jobs as a safety officer on construction sites”, work in which he was experienced. Since then, he said he had embarked on a course with a view to retraining as a cabinet maker.

236    Similarly, Mr Miller deposed that, after his employment with the Unions was terminated, he also applied for work as a safety officer and made about a dozen applications to various construction companies but could not secure an interview. It was as a result of these abortive efforts to obtain alternative employment in the construction industry that he decided to seek work as a bus driver.

237    It does not appear that Mr Quirk and Mr Miller were totally unfit for work before the repudiation. The minutes of the meeting of the Divisional Executive on 17 April 2015 record that Mr Quirk had produced a WorkCover certificate indicating that he was available for work three days a week and that Mr Miller had produced one saying he was fit to resume work. To the extent that they received workers’ compensation thereafter, the evidence is entirely opaque about the reasons for those payments. No attempt appears to have been made to prove that the workers’ compensation payments made after the repudiation of their contracts resulted from an injury sustained or a disease contracted beforehand, rather than from the impact of the termination itself. For all we know, the pre-existing injury could have been aggravated or exacerbated by the repudiation and its consequences.

238    Moreover, the Unions abandoned their contention (appeal ground 5(f)) that the primary judge erred by failing to reduce damages on the basis that they had received workers’ compensation during the period from the termination of their employment until the end of their four year terms.

239    The final matter relates to the calculation of the amounts awarded.

240    The primary judge calculated damages based on a gross salary for each of Mr Quirk and Mr Miller of $112,426.09. In their submissions in reply on the cross-appeal, Mr Seck and Mr Whitbread took issue with the figure, submitting it was unreliable because it was based on an estimate by “the Respondents’ counsel” based on a single payslip. They asked the Court to reassess damages based on other evidence, which would have the effect of awarding about $200 less to Mr Miller and about $4,000 more to Quirk. I would not entertain this submission. At the trial Ms Byrnes, who then appeared with Mr Seck, told the Court:

In the schedule of loss, we exchanged with the respondent. We have set the gross salary as $112,426.09 per annum and we understand there’s no dispute with that.

241    The primary judge could scarcely be said to have fallen into appealable error because he accepted the agreed position of the parties. In any event, the submission was made in response to ground 5(d) of the notice of appeal which the Unions abandoned and is therefore irrelevant.

Should damages have been reduced by the amount of social security payments made to Mr Quirk and Mr Miller and the amount of money they earned from alternative employment, and if so, by what amount (issue 8, appeal grounds 5(g) and (h)).

242    The Federal Union alleged that the primary judge erred at [363] of his reasons by failing to reduce the damages in Mr Quirk’s case to reflect his uncontested evidence that he had received $680 per week in social security payments from June 2016 to March 2017 (a total of $29,240, according to their written submissions) and damages in Mr Miller’s case by $1,266.30, being the earnings he derived as a bus/coach driver.

243    As I mentioned earlier, this ground was not pressed. Mr Quirk accepted that this was an error and the primary judge should have reduced damages by the amount he received in social security benefits in that period. Mr Miller accepted that the primary judge ought to have reduced his damages by the earnings he derived from alternative employment. The awards of damages should be adjusted accordingly.

The adverse action case

Section 346: engagement or otherwise in industrial activity?

The pleadings below

244    In his Further Amended Statement of Claim (FASOC), Mr Miller pleaded:

85.    In making the internal complaints, the external complaints, the SMH complaints and the 7.30 Report complaints, Mr Miller acted lawfully for the purposes of s 347(1)(b)(iii) of the FW Act.

86.    At all material times, it has been in the interests, and represented the views, of the CFMMEU and CFMEU NSW that the CFMMEU and CFMEU NSW respectively and their respective officers must publicly promote and uphold their agreed policies including the Code of Conduct, the Conflict of Interests Policy, the Personal Gifts and Benefits Policy and the Bullying Complaints Procedure.

87.    The allegations made in [the] internal complaints, the external complaints, the SMH complaints and the 7.30 Report complaints, if proven, breached the Code of Conduct, the Conflict of Interests Policy, the Personal Gifts and Benefits Policy and the Bullying Complaints Procedure.

88.    In making the internal complaints, the external complaints, the SMH complaints and the 7.30 Report complaints, Mr Miller engaged in “industrial activity” within the meaning of s 347 of the FW Act because he:

a.    promoted a lawful activity for, and on behalf of, the CFMMEU and the CFMEU NSW for the purposes of s 347(b)(iii) of the FW Act; and/or

b.    represented and advanced the views and interests of the CFMMEU and the CFMEU NSW for the purposes of s 347(b)(v) of the FW Act.

89.    Further and in the alternative, to the extent that Mr Quirk and Mr Miller made allegations damaging to the CFMMEU and the CFMEU NSW that had not been raised internally in the SMH complaints and the 7.30 Report complaints contrary to a lawful request or requirement or the views and interests of the CFMMEU and CFMEU NSW, Mr Miller engaged in “industrial activity” within the meaning of s 347 of the FW Act by:

a.    not complying with a lawful request made by, or requirement of, the CFMMEU and CFMEU NSW for the purposes of s 347(b)(iv) of the FW Act; and/or

b.    by not representing or advancing the views or interests of the CFMMEU and CFMEU NSW for the purposes of s 347(b)(v) of the FW Act.

90.    In the premises, the CFMMEU and/or CFMEU NSW took adverse action against Mr Miller because he had engaged in industrial activity in contravention of s 346(b) of the FW Act.

245    An identical claim appears in the FASOC filed by Quirk. Only the paragraph numbering is different.

246    This aspect of the case was characterised by the primary judge as “untrammelled procedural chaos” (at [243]). The “lawful request” was not identified in the pleading. In closing submissions it was said to be “the existence of a protocol or policy or ‘golden rule’ of the Federal Union that members not speak to the media or any third party without authorisation”. Ultimately, it was said to be based on a protocol, a policy, the “golden rule” and cl 12 of the New Code of Conduct, of which Mr Quirk and Mr Miller claimed to be ignorant at the time.

The relevant legislative provisions and the findings at trial

247    Before going any further it is necessary to refer to the relevant provisions of the FW Act.

248    Section 346 falls within Pt 3-1 of the FW Act, which is entitled “General protections”. The objects of Pt 3-1 are set out in s 336(1). They are:

(a)    to protect workplace rights;

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

(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 industrial activities;

(c)    to provide protection from workplace discrimination;

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

(Emphasis added.)

249    Section 336(2) provides that these protections are provided to persons, whether the person is an employee, an employer “or otherwise”.

250    Section 346 provides:

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

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

(b)    engages, or has at any time engaged or proposed to engage, in industrial activity 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 paragraphs 347(c) to (g).

Note:     This section is a civil remedy provision (see Part 4-1).

251    “Adverse action” is defined in the table included in s 342(1). It includes the following action by an employer against an employee:

(a)    [dismissing] the employee;

(b)    [injuring] the employee in his or her employment;

(c)    [altering] the position of the employee to the employee’s prejudice; or

(d)    [discriminating] between the employee and other employees of the employer.

252    Item 7 of s 342(1) provides:

Adverse action is taken by an industrial association, or an officer or member of an industrial association, against a person if the industrial association, or the officer or member of the industrial association:

(a)    organises or takes industrial action against the person; or

(b)    takes action that has the effect, directly or indirectly, of prejudicing the person in the person’s employment or prospective employment; or

(c)    if the person is an independent contractor—takes action that has the effect, directly or indirectly, of prejudicing the independent contractor in relation to a contract for services; or

(d)    if the person is a member of the association—imposes a penalty, forfeiture or disability of any kind on the member (other than in relation to money legally owed to the association by the member).

(Emphasis added.)

253    Mr Quirk and Mr Miller relied on paras (b) and (d). The primary judge was satisfied that para (b) applied on the same basis that he was satisfied that paras (a) to (c) of item 1 were made out (at [233]). But he was not satisfied that para (d) applied (at [235]).

254    At [236]–[237] his Honour said:

I accept that because the Divisional Executive purported to remove Mr Quirk and Mr Miller from office under Rule 11 and thereby brought about a chain of events leading to the end of the employment relationship that the Federal Union took adverse action within the meaning of item 1 cll (a)-(c) and item 7 cl (b) but not item 7 cl (d).

For completeness, I do not accept that the laying of the summonses against Mr Quirk or Mr Miller constituted adverse action in this case. The summonses merely required them to appear to defend themselves against the charges the subject matter of which had nothing to do with their performance of their duties as organisers. Whilst the charges were pending their employment remained intact. That was not any form of injury to their employment.

255    Section 342(3) provides that adverse action does not include action that is authorised by or under the FW Act or any other law of the Commonwealth or a law of a State or Territory prescribed by the regulations.

256    Section 363(1)(a) provides that action taken by the committee of management of an industrial association is taken to be action by the industrial association.

257    The primary judge observed that the term “committee of management” is not defined in the FW Act but it is defined in the Rules of the Federal C&G Division (at [213]). On the basis of that definition, his Honour held that the Divisional Executive is a committee of management and therefore the actions of the Divisional Executive are taken to be the actions of the Federal Union (at [214]). That finding is not challenged.

258    Section 347 exhaustively defines the meaning of “engages in industrial activity”. It provides:

Meaning of engages in industrial activity

A person engages in industrial activity if the person:

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

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

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

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

(vi)    pay a fee (however described) to an industrial association, or to someone in 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, an industrial association; or

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

(e)    complies with an unlawful request made by, or requirement of, an industrial association; 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 relating to periods of industrial action), an employer must not pay; or

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

(Emphasis added.)

The allegations in the cross-appeal

259    It will be recalled that by ground 3 of the cross-appeal Mr Quirk and Mr Miller pleaded that the primary judge erred in finding that the provision in cl 12 of the New Code of Conduct providing that employees had to seek authorisation before appearing in the media was not a “lawful requirement” under s 347(b)(iv) of the FW Act and that, in the alternative, his Honour erred in law by not finding that it was an “unlawful requirement” under s 347(e). During oral argument, however, Mr Seck of counsel, who appeared with Mr Whitbread for Mr Quirk and Mr Miller and also appeared at the trial, ultimately abandoned the cross-appeal from his Honour’s finding that the requirement in cl 12 was not lawful but urged the Court to deal with their alternative allegation that the Federal Union took adverse action against them because they had failed to comply with an unlawful requirement within the meaning of s 347(e). There was no dispute that the alternative argument could only be advanced with leave.

Should Mr Quirk and Mr Miller be permitted to argue that the Federal Union contravened s 346(c) of the FW Act when no such case was pleaded below (issue 13; cross-appeal ground 3)?

Did the primary judge err in holding that the statements made by Mr Quirk and Mr Miller did not involve them engaging in industrial activity (issue 15, cross-appeal ground 3)?

260    In their written submissions on the cross-appeal Mr Quirk and Mr Miller submitted that, if the requirement in the new Code of Conduct was not lawful, then it must follow that it was unlawful and therefore protected action under s 347(e). It is undoubtedly true that, if the requirement was not lawful, it was unlawful. Indeed, his Honour so found. But that was not the case they ran at trial.

261    This is an appeal by way of rehearing. But that does not mean that the issues are at large. As Gibbs CJ, Wilson, Brennan and Dawson JJ observed in Coulton v Holcombe (1986) 162 CLR 1 at 7:

It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial. If it were not so the main arena for the settlement of disputes would move from the court of first instance to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish.

262    Similarly, in University of Wollongong v Metwally (No 2) [1985] HCA 28; 60 ALR 68; 59 ALJR 481 at 483 six justices of the High Court said:

It is elementary that a party is bound by the conduct of his case. Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so.

263    It is well established that leave to argue a ground of appeal not raised before the primary judge should only be granted if it is expedient in the interests of justice to do so: VUAX v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 238 FCR 588 at [46] (Kiefel, Weinberg and Stone JJ). The interests of justice in this sense are not confined to the interests of justice in the instant case. As Branson and Katz JJ observed in H v Minister for Immigration & Multicultural Affairs [2000] FCA 1348; 63 ALD 43 at [8]:

The volume and complexity of the cases presently required to be heard and determined by the intermediate appellate courts of Australia is such that it is increasingly important that such courts are able to devote their time to the genuine review of first instance decisions. It is becoming increasingly difficult, in our view, to establish that it is expedient in the interests of justice that the time of three or more judges should be spent giving original consideration to issues that ought to have been raised before the primary judge. The interests of justice in this sense extend beyond the interests of the parties to the appeal to encompass the interests of other litigants whose appeals require hearing and determination, and the broad public interest in efficient judicial administration.

264    Before any new point is to be allowed, an appellate court should be able to be satisfied that the raising of it could work no injustice on the other party and is otherwise in the interests of justice: Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424 at [38] (Allsop J).

265    Thus, in Water Board v Moustakas (1988) 180 CLR 491 the appellant was not permitted to advance a case that was not made at trial even though all the elements of that case had been pleaded and particularised.

266    In Banque Commerciale SA, En Liquidation v Akhil Holdings Ltd (1990) 169 CLR 279 at 287 Mason CJ and Gaudron J observed that, “[o]rdinarily, the question whether the parties have chosen some issue different from that disclosed in the pleadings as the basis for the determination of their respective rights and liabilities is to be answered by inference from the way in which the trial was conducted”. Their Honours accepted the possibility, however, that, “in a clear case, mere acquiescence by one party in a course adopted by the other will be sufficient to ground such an inference”.

267    But this was not such a case. Here, this particular cause of action was neither pleaded nor raised in either opening or closing submissions, including (so the Court was told) the 120 odd pages of closing submissions that were served but not accepted by the Court. In fact, as the Federal Union submitted, it was not raised as an issue below. Accordingly, the Federal Union contended that ground 3 of the cross-appeal, to which it relates, should be rejected.

268    Mr Seck valiantly submitted that “the point” had been raised at the trial in closing argument. The passage in the transcript upon which he relied to support this submission occurred at the tail end of his argument concerning s 347(b)(iv) (failing to comply with a lawful requirement) after he addressed the primary judge on the question of “request” or “requirement”. The transcript relevantly reads:

If we’re right that it’s not a requirement because it is invalid, we win on the ..... case, anyway … But we would say it must fall within “request” or “requirement”. Can I just add one more point. 347(e), your Honour – and ….. rely upon this – talks about complies with an unlawful request or requirement. Your Honour, this is of 347… So, if it’s an unlawful requirement, it presumably would be invalid.

(Emphasis added, ellipses as per original.)

269    It appears that no attempt was made to correct the transcript to identify the omissions denoted by the ellipses and no affidavit was filed deposing to the full submission.

270    After an exchange with the primary judge about the merits of the proposition advanced in the last sentence, Mr Seck said:

Anyway, that’s a point which I thought we would just identify.

271    No application was made at that juncture to amend the pleading.

272    It appears from the reasons of the primary judge that a different alternative submission was put. That was that, if cl 12 were not a lawful requirement, it should be treated as a lawful request within the meaning of s 347(b)(iv). His Honour rejected that submission on the ground that the terms of cl 12 did not constitute a request but an instruction. See PJ at [267].

273    Nevertheless, Mr Seck submitted that senior counsel for the Federal Union at the trial, Mr Walker SC, “engaged with the whole 347 point”, by which I took him to mean that the Federal Union responded to the alternative argument raised in the cross-appeal. The submission was an audacious one for its foundation was the following passage on p 1089 of the trial transcript (Pt C 1782):

My learned friend has made much of the way in which, by section 347, the universe is very large, so he would have it, of conduct by an employer of the trade union which will be protected. It gets there by pointing your Honour to engages or ..... anytime engaged, first of all in industrial activity within the meaning of (a) and (b). It points to – they’re not engaged in this case but points to the fact if they are, they are very broad, involved, promote are enough to show that in (a). But particular reference is made, and the case turns, as we understand it on (c) – I’m sorry, on (d) – on (e). I want to put (c), (d) and (e) altogether. Your Honour will see that (c), (d) and (e) are designed to protect people engaging in what I will call unlawful activities. So, again, it’s directed at the activities of Unions in a way that would be unlawful.

274    By no stretch of the imagination can this be described as engaging with an allegation that, by speaking to the media, Mr Quirk and Mr Miller had not complied with an unlawful request or requirement of the Federal Union.

275    During argument, Mr Seck accepted that the reference to s 347(e) in Mr Walker’s submission was merely contextual and made “for construction purposes”, that is to say for the purposes of the argument, ultimately accepted by the primary judge, that s 347 and s 347(b)(iv), in particular, do not apply to requests made by employers of their employees or requirements imposed by employers on their employees. When regard is had to the context, it is plain that Mr Walker did not apprehend that Mr Quirk and Mr Miller were running an alternative case that the requirement in the Code of Conduct was unlawful and did not therefore engage with the argument they now wish to run. His argument was a response to the pleaded case only.

276    The question, then, for this Court is whether it would be expedient in the interests of justice for Mr Quirk and Mr Miller to be granted leave to run on appeal the converse of one of its adverse action cases it ran at trial.

277    I am not disposed to grant leave. For the following reasons I am not persuaded that it would be expedient to do so. Accordingly, leave should be refused.

278    First, I would adopt the remarks of McHugh JA in Holcombe v Coulton (1988) 17 NSWLR 71 at 77 (with whom Samuels and Clarke JJA agreed at 72 and 79 respectively):

I cannot accept the notion that the interests of justice require that cases should be heard and re-heard until every conceivable factual pattern or every conceivable legal principle of relevance that finally occurs to the parties have been litigated. The cost and strain of litigation and the limits of curial resources have to be weighed against the demand of the appellant for justice according to the set of rules which represent the “law” which should have governed the case.

279    Second, like any respondent, the Federal Union was entitled to know the case it was called upon to meet at trial before it determined how to respond to it.

280    In Banque Commmerciale at 286–7 Mason CJ and Gaudron J said:

The function of pleadings is to state with sufficient clarity the case that must be met: Gould and Birbeck and Bacon v. Mount Oxide Mines Ltd. (In Liq.) [(1916) 22 CLR 490], per Isaacs and Rich JJ [at p 517]. In this way, pleadings serve to ensure the basic requirement of procedural fairness that a party should have the opportunity of meeting the case against him or her and, incidentally, to define the issues for decision. The rule that, in general, relief is confined to that available on the pleadings secures a party's right to this basic requirement of procedural fairness. Accordingly, the circumstances in which a case may be decided on a basis different from that disclosed by the pleadings are limited to those in which the parties have deliberately chosen some different basis for the determination of their respective rights and liabilities.

281    It is difficult to see what prejudice would be occasioned to the Unions if Mr Quirk and Mr Miller were given leave to run the new case on appeal. Nevertheless, in a case like the present in which the relief sought includes pecuniary penalties there is good reason to hold an applicant to their pleadings at trial and not permit a new case to be run on the appeal even if no prejudice is apparent. That is particularly so in the present case where so many issues were raised both at trial and on appeal, at times on the run. As the Full Court (Logan, Bromberg and Katzmann JJ) explained in Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (2015) 230 FCR 298 at [63]–[64]:

[A] civil suit for the recovery of a pecuniary penalty is a proceeding of a penal nature: Naismith v McGovern (1953) 90 CLR 336 at 341. In this class of case, it is especially important that those accused of a contravention know with some precision the case to be made against them. Procedural fairness demands no less. …

Litigation is not a free for all. The overarching purpose of the civil practice and procedure provisions that apply in this Court is to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible (Federal Court of Australia Act 1976 (Cth) (“FCA Act”), s 37M). It would not be just to decide a case on a different basis than the way it was conducted. Nor would it be just to permit an applicant to change the nature of its case after the evidence has closed and its weaknesses pointed out, at least not without a formal application and the grant of leave, on terms if necessary.

282    Third, Mr Quirk and Mr Miller did not offer any explanation for failing to plead this cause of action in the first place or to seek the leave of the primary judge to amend their pleading if the point occurred to their lawyers. In substance, it was opportunistic. Having lost the case they elected to run at trial, they should not be permitted to run a different case on appeal when it was open to them to raise the point at first instance. They should be held to their election.

283    In any event, I do not consider there is any merit in the point. In my opinion, s 347 does not apply to a request or requirement of an industrial association made to, or imposed on, its own employees. As Bromberg J opined in Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (The Bay Street Case) (2018) 260 FCR 564 at [32], the request or requirement of which s 347(b)(iv) speaks is a request or requirement made by an industrial association of another person to participate in the activities of the industrial association. His Honour was bound to hold otherwise. But the CFMMEU appealed and, in The Bay Street Appeal, his Honour’s opinion was endorsed by Allsop CJ and Flick J (White J dissenting on this point). Consequently, the primary judge held that s 347(b)(iv) could not apply to a request or requirement made by a registered organisation in its capacity as an employer with respect to its employees or, as his Honour put it, “qua employer” to its employees (at [266]).

284    Mr Quirk and Mr Miller contend that this was an error. They submitted:

In the Bay Street Appeal, the majority of this Court found that s 347(b)(iv) must be construed in context and did not extend to all requirements and requests made by an industrial association but that the alleged requirement or activity must be associated with the participation or non-participation in the association’s activities (Allsop CJ at [30]-[32]). The majority’s construction recognised that the protections in s 347 of the FW Act are based on the freedom of choice to associate or not to associate and give equal weight to the positive and negative aspects of the freedom.

The Respondents’ actions were not disassociated from the participation in the industrial association’s activities relevant to freedom of association. Both requirements were directed to regulating the ability of union officials to speak freely which affect freedom of association. There is a special status given to industrial organisations and their elected officers in representing the members under the Fair Work (Registered Organisations) 2009 Act [sic] (Cth) (FWRO Act) and the FW Act. Elected union officers have a duty to faithfully, genuinely and honestly act in the real and perceived interests of their members (and not the union), which means that they are not required to follow directions but act according to their conscience to fulfil that purpose. This may often mean speaking out against perceived corruption or malfeasance within the union. The democratic governance and functioning of a registered organisation require that the rank and file have the ultimate control over the affairs of the institution and its executive, policies and management to achieve that end there must be free and robust communication of views and information by officers and members. The Appellant imposed requirements under the Code of Conduct which had the real and likely effect of stifling elected officials from expressing dissenting views about the governance and integrity of a registered organisation which has the capacity to impact on ensuring that members can receive relevant information as to whether they wish to become or remain a member or not of the registered organisation and persons elected to office. So understood, the regulation of free speech are [sic] relevant to the decision of a person whether to associate or disassociate with an industrial association and is protected under s 347(b). Thus, the primary judge erred at [271]-[272], in finding that the Respondents’ exercise of their right to express dissenting views to the Appellant did not involve the exercise of the right to freedom of association.

285    I cannot accept the argument.

286    The submission mischaracterises the nature of Mr Quirk and Mr Miller’s conduct in speaking to the media without authorisation. Their conduct was not related to freedom of association.

287    The Bay Street Appeal concerned a request made by the CFMMEU to an employer of its members. The majority (Allsop CJ and Flick J) held that s 347(b)(iv) only “protect[s] freedom of association by ensuring people are free to participate (or not) in the lawful activities of or concerning industrial associations” (at [29] per Allsop CJ) and that “[f]reedom of association is protected by persons being prohibited from taking adverse action against someone who will not engage in industrial action, or coercing someone to engage in such, or making false representations about an obligation to engage in such” (at [31] per Allsop CJ). They rejected the broader construction urged by the Australian Building and Construction Commissioner and favoured by White J in dissent at [193].

288    At [25]–[29] Allsop CJ explained:

The activities collected in s 347(a) and (b) all concern persons engaging (or not) in activities of, in, with, on behalf of, or in relation to (that is, which concern) industrial associations. They are activities in which participation (or not) is intended to be protected: that is protection of participation (or not) in activities of, in, with, on behalf of or in relation to industrial associations.

Turning to s 347(b)(iv), and understanding its proper construction as a provision intended to fulfil the object of s 336(1)(b)(iii), and to give the content or subject matter to the protective provisions of ss 346, 348 and 349, one sees freedom of association as intended to be protected by ensuring people are free to participate (or not) in lawful industrial activity of or concerning an industrial association by complying (or not) with a lawful request by or a requirement of the industrial association.

The question in this appeal is the intended subject or scope of the “request” by or the “requirement” of the industrial association, because the compliance or non-compliance with it is the “engaging in industrial activity”.

Is it to any request by or requirement of an industrial association to any person in the world for any reason whatsoever? Such a broad and unqualified scope would appear to travel far beyond the intended subject matter and object or purpose of the Part given by the Act itself in ss 3(e), 6(2), 334 and 336. From s 336 one is told that the protection of freedom of association is to be ensured in part by ensuring the freedom to participate (or not) in certain lawful activities. That participation is in lawful activities of or concerned with industrial associations in s 347(a) and (b). The request or requirement can thus be seen to be about activities of or concerning the association in which there is to be freedom to participate (or not). This is expressed slightly differently to the expression of the matter by the primary judge at [32] and [66] of his Honour’s reasons. The difference is not substantial and may avoid possibly arbitrary distinctions being drawn.

Thus read, there is no call from the expressly stated purposes of the Part for s 347(b)(iv) to travel beyond protecting freedom of association by ensuring people are free to participate (or not) in the lawful activities of or concerning industrial associations.

(Emphasis added.)

289    Flick J put it this way at [74]:

In essence, s 347(b)(iv) should be confined in its interpretation and application to protecting a person’s freedom of association and participation or non-participation in the activities of industrial associations, and should not be extended to conduct in circumstances where a union makes a request of, or a requirement of, an employer. Such a conclusion, it is respectfully concluded, follows in particular from:

•    the structure of Pt 3-1 of the Fair Work Act and, in particular, the separate focus of attention in Div 3 of Pt 3-1 to the protection of “workplace rights” and the separate focus of attention in Div 4 of that Part to the protection of “Industrial activities”;

•    the natural and ordinary meaning of the words employed in s 347(b)(iv) — that meaning deriving its content (in particular) from the Division in which it appears, namely “Industrial activities”;

•    the “objects” of Pt 3-1 as set forth in s 336 and the reference in s 336(1)(b) to “industrial activities” being read consistently with the “industrial activities” as addressed in Div 4; and

•    the need to construe the Fair Work Act in a consistent manner such that (for example) the “protection” afforded to conduct under one provision is not rendered nugatory by rendering the same conduct which may be “protected” under another provision (eg, s 343(2)) or unlawful under another (eg, s 347(b)(iv)).

290    The freedom of association which these provisions of the FW Act are intended to protect is apparent from the terms of s 336(1)(b). It is the freedom to become or not become a member of an industrial association, to be represented or not represented by an industrial association, and to freely participate or not in lawful industrial activities.

291    It follows that s 347(b)(iv) does not apply to requests or requirements of a union unrelated to freedom of association or participation or non-participation in the activities of the union and therefore did not apply to the conduct of Mr Quirk and Mr Miller.

292    The primary judge observed in a passage at [266]:

Acceptance of the contrary view would require one to accept that a registered organisation which lawfully directed its employees not to harass each other sexually would be prevented from taking disciplinary action against one who did so because this would be the taking of adverse action against an employee for engaging in industrial activity. Sexual activity is not usually industrial: cf. Comcare v PVYW [2013] HCA 41; 250 CLR 246.

293    I respectfully agree with his Honour. Put another way, it can scarcely have been Parliament’s intention that an employee should be able to recover compensation and pecuniary penalties from their employer because the employer required them to comply with a lawful (and reasonable) order. That has nothing to do with freedom of association. Contrary to the submissions advanced for Mr Quirk and Mr Miller, nothing said in The Bay Street Appeal suggests otherwise.

294    After all, an employee has a duty, implied by law, to obey lawful and reasonable orders given by their employer: R v Darling Island Stevedoring & Lighterage Co Ltd; Ex parte Halliday (1938) 60 CLR 601 at 621 (Dixon J); Sappideen C, O’Grady P and Munton J, Macken’s Law of Employment (9th ed, LawBook Co, 2022) at [5.410]. Indeed, it has been said that “there can be no employment relationship without a power to command and a duty to obey” and “this element of subordination” is rightly seen as “the hallmark of the contract of employment”: Khan-Freund O, Labour and the Law (Stevens, 1972) p 9, cited in Neil I and Chin D, The Modern Contract of Employment, (2nd ed, LawBook Co, 2017) (Neil and Chin) at p 158 fn 241. Ordinarily, wilful disobedience of a lawful (and reasonable) order can justify summary dismissal.

295    Consequently, issue 14 does not arise.

Section 351 – political opinion

Did the primary judge err by failing to find that s 351(1) of the FW Act was not engaged (issues 16 and 17, cross-appeal grounds 2 and 4)?

296    Mr Quirk and Mr Miller alleged that adverse action was taken against them because of their political opinions, which were described in the Quirk FASOC at [92] and the Miller FASOC at [91] as opinions conveyed to the SMH and 7.30 about the governance of a registered organisation regulated under the FWRO Act with rights and entitlements conferred under the FW Act; the alleged corrupt and criminal conduct of officers of a registered organisation affiliated with the Australian Labor Party; and matters the subject of the Royal Commission into Trade Union Governance and Corruption (commonly known as the Heydon Royal Commission). The adverse action was defined in the Quirk FASOC at [81] and the Miller FASOC at [80] as laying the charges against each of the men, summonsing them to attend meetings to answer the charges, and/or removing them from office in the State Union; at [82] and [81] respectively as the decision not to continue and ending their employment after their removal from office; and at [83] and [82] respectively as their dismissal from employment within the meaning of item 1(a) of s 342(1) of the FW Act.

297    Section 351(1) of the FW Act is in the following terms:

An employer must not take adverse action against a person who is an employee, or prospective employee, of the employer because of the person’s race, colour, sex, sexual orientation, breastfeeding, gender identity, intersex status, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin.

Note: This subsection is a civil remedy provision (see Part 4-1).

298    But there are exceptions. Section 351(2)(a) provides that subsection (1) does not apply where the action is “not unlawful under any anti-discrimination law in force in the place where the action is taken”. “Anti-discrimination law” is defined in s 351(3). It relevantly includes the Anti-Discrimination Act 1977 (NSW) and the Equal Opportunity Act 2010 (Vic). Discrimination on the ground of political opinion is rendered unlawful under the latter (see s 6(k)) but not under the former.

299    In the present case Mr Quirk and Mr Miller noted that, while the meeting of the Divisional Executive on 17 April 2015 in which the decision was taken to remove them from office occurred in NSW, the charges against them were laid by the National Secretary, who was based in Victoria at the time and the letter communicating the decision (written by the then Assistant National Secretary of the Federal Union, Frank O’Grady) was sent from Victoria because the letters were couriered to them by Mr O’Grady’s secretary “whose signature block states she was located in Victoria”. These arguments were apparently raised very late. In their defences the Unions pleaded that pursuant to s 351(2), s 351(1) did not apply because any action was not unlawful under any anti-discrimination law in the place where the action was taken, namely, NSW (see [103(h)] of the defence filed by the Federal Union in both Mr Quirk’s and Mr Miller’s matters at first instance and [107(h)] of the defence filed by the State Union). Yet, although Mr Quirk and Mr Miller filed replies, their pleading did not suggest that they would be arguing that the adverse action was taken in Victoria. It appears that the primary judge invited or permitted written submissions to be filed on this question after judgment was reserved.

300    On the cross-appeal Mr Quirk and Mr Miller submitted that the laying of disciplinary charges against them and the requirement that they participate in a show cause process amounted to “a prejudicial alteration” in their positions “at least where it [was] not made with reasonable cause”. They argued that this was so because the actions had the “potential to imperil their employment security” and that the communication of their removal “had a similar effect”, because, once informed, they were bound to act in accordance with the Divisional Executive’s decision and no longer participate in the affairs of the Federal Union. They contended that that position was consistent with the legal position that termination of employment does not become effective until it is communicated, citing Gisda Cyf v Barratt [2010] UKSC 41; [2010] 4 All ER 851 at [34]–[45]. Consequently, Mr Quirk and Mr Miller argued, the removal process started and finished in Victoria.

301    Mr Quirk and Mr Miller also submitted, as they did below, that the phrase “not unlawful under an anti-discrimination law” in s 351(2)(a) refers to provisions of an anti-discrimination law that apply so as to make it “not unlawful” to discriminate on the ground of the particular protected attribute. In other words, “the anti-discrimination legislation must be the source of the provisions that makes actions ‘not unlawful’ which would otherwise amount to unlawful discrimination under that law”.

302    His Honour’s reasons for finding that the adverse action took place in NSW rather than Victoria are set out at [284]–[285] of the principal judgment:

Section 351 makes the rule of Commonwealth law which applies to the Federal Union’s conduct a function of which State the conduct was engaged in (cf. Constitution, s 117). In this case the adverse action consists of the Divisional Executive’s decision to remove Mr Quirk and Mr Miller from office under Rule 11. The minutes of the meeting clearly show that the Divisional Executive met at 215-217 Clarence Street in Sydney.

In an attempt to transport the adverse action to the more accommodating discrimination regime obtaining in Victoria, Mr Seck submitted that the adverse action included the fact that Mr Noonan had laid the charges in Victoria and that the letter informing Mr Quirk and Mr Miller that they had been removed from office (sent by Mr O’Grady) was sent from Victoria. As I have already explained, I do not accept that either of these acts constituted adverse action. Consequently, the only adverse action which occurred took place in New South Wales.

303    With respect to the laying of the summonses, his Honour had earlier said (at [237]):

For completeness, I do not accept that the laying of the summonses against Mr Quirk or Mr Miller constituted adverse action in this case. The summonses merely required them to appear to defend themselves against the charges the subject matter of which had nothing to do with their performance of their duties as organisers. Whilst the charges were pending their employment remained intact. That was not any form of injury to their employment.

304    With respect to the sending of the letter informing them that they had been removed from office, his Honour said at [239]:

The legal act which resulted in the purported vacation of their offices was the Divisional Executive’s, not Mr O’Grady’s, and his action in informing them of the fact that the Divisional Executive had removed them did not purport to say anything about the employment relationship. As I later explain in Section IV, it was not until Ms Mallia wrote to Mr Quirk and Mr Miller on 27 April 2015 to tell them that the employment relationship had ended that the Federal Union made any intimation to [Quirk and Miller] about the status of their employment relationship. In fact, for reasons developed in more detail later, the acts of the Divisional Executive in removing Mr Quirk and Mr Miller from office were invalid and of no effect. However, whilst that renders Mr O’Grady’s letter incorrect (for they had not been removed from office), it does not transform it into an act of repudiation of the contract of employment about which Mr O’Grady said nothing. It was only Ms Mallia’s letter which indicated that the Federal Union regarded the employment contract as at an end. Whilst it may well be possible to characterise Ms Mallia’s letter as adverse action (since it repudiated the employment relationship) this was not the case [Quirk and Miller] sought to submit.

305    His Honour was correct on both issues.

306    The fact that termination of employment is ineffective until communicated is not to the point. The question here is not when the termination became effective but when the contravening conduct occurred. That was not on 20 April 2015, when the letter was sent, but three days earlier, at the Divisional Executive meeting in Sydney.

307    The foundation for the argument that the summonses were issued in Victoria was tenuous. It was that the address Mr Noonan gave in the affidavit he affirmed on 4 September 2019 (nearly four years after the charges were laid) was a Victorian address. If, contrary to the views expressed above, the laying of the charges is to be taken to be adverse action, the evidence before the primary judge indicated that Mr Noonan was living in Sydney at the time. Letters sent by Mr Noonan to each of Mr Quirk and Mr Miller on 7 November 2014 (two days after the summonses were issued) were written on the letterhead of the C&G Division of the Federal Union which recorded the street and postal addresses of the Division’s National Office in Sydney. I also note that O’Grady’s letters were written on the same letterhead and in all likelihood were dispatched from the Sydney office.

308    While the context in which they were made is different, the remarks of the plurality in Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 at 568, a case which concerned the place of commission of a tort in private international law, seem apposite:

If a statement is directed from one place to another place where it is known or even anticipated that it will be received by the plaintiff, there is no difficulty in saying that the statement was, in substance, made at the place to which it was directed, whether or not it is there acted upon. And the same would seem to be true if the statement is directed to a place from where it ought reasonably to be expected that it will be brought to the attention of the plaintiff, even if it is brought to attention in some third place. But in every case the place to be assigned to a statement initiated in one place and received in another is a matter to be determined by reference to the events and by asking … where, in substance, the act took place.

309    Here, the authors of the letters knew and intended that they would be received by Mr Quirk and Mr Miller in New South Wales, as the letters were addressed to them in New South Wales, and, in substance all the relevant acts took place in New South Wales.

310    The challenge to the primary judge’s construction of s 351(2) must also be rejected, for the reasons I gave in Fair Work Ombudsman v Foot & Thai Massage Pty Ltd (in liq) (No 4) [2021] FCA 1242 at [756]–[764], following Rumble v The Partnerhsip trading as HWL Ebsworth Lawyers [2019] FCA 1409; 289 IR 72 at [143] (Perram J) and Sayed v Construction, Forestry, Mining and Energy Union [2015] FCA 27; 327 ALR 460; 149 ALD 88 at [161]–[163] (Mortimer J). In short, the construction Mr Quirk and Mr Miller urged upon the Court is not correct; it does not conform to the plain meaning of the text or the legislative intention.

311    In Rumble at [143] his Honour rejected a submission that the expression “not unlawful” is limited to actions which are specifically permitted under an anti-discrimination law. His Honour said that the construction urged upon the Court “does not sit with the plain meaning of ‘not unlawful’” nor with Parliament’s intention. His Honour pointed out that originally s 351(2) used the word “authorised”, not “unlawful”, and referred to the reason for the amendment revealed by the Supplementary Explanatory Memorandum to the Fair Work Bill 2008 (Cth):

Paragraph 351(2)(a) of the Bill (together with paragraph 342(3)(a)), currently provide that action is not discriminatory if it is authorised by or under a Commonwealth, State or Territory anti-discrimination law. This exception is intended to ensure that where action is not unlawful under a relevant anti-discrimination law (e.g., because of the application of a relevant statutory exemption) then it is not adverse action under subclause 351(1). The word “authorised” may not capture all action that is not unlawful under anti-discrimination legislation, especially if the legislation does not specifically authorise the conduct but has the effect that the conduct is not unlawful. These amendments ensure the exception operates as intended.

312    As I explained in Foot & Thai Massage at [762]:

[I]t seems to me that the phrase “not unlawful under any anti-discrimination law in force in the place where the action is taken” is not confined to “express defences, carve outs, exemptions and authorisations” in the anti-discrimination laws. It is wider than that. The apparent intention is to ensure that the protection afforded by s 351(1) [scil.] is no greater than that provided by an anti-discrimination law in force in the place where the action was taken. Action is lawful unless there is a law which makes it unlawful. Action may be “not unlawful” for any one of a number of reasons, including because it is not expressed to be unlawful, because the alleged contravener has a defence, or because it is exempt from the provisions of the legislation. This interpretation is supported by the passage in the Supplementary Explanatory Memorandum to which Perram J referred in Rumble. While explanatory memoranda are not infallible, they can generally be taken as reliable indications of the intentions of government-sponsored legislation: Mondelez Australia Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union; Minister for Jobs and Industrial Relations v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2020] HCA 29; 94 ALJR 818; 381 ALR 601; 297 IR 338 at [71]–[72] (Gageler J).

313    I concluded at [764] that s 351 was not intended to expand the scope of federal, State or Territory anti-discrimination laws (which was the effect of the Ombudsman’s submission in that case and Mr Quirk and Mr Miller’s in the instant case) but to work harmoniously with them. That was the view of Mortimer J, too, as the Chief Justice then was. In Sayed at [161] her Honour said:

[T]he terms of s 351(2), read with subs (3), … must be applied. Those provisions expressly pick up the detailed regimes of each of the territory, state and federal anti-discrimination statutes. In other words, the requirements that there be “less favourable treatment”, the complicated requirements for indirect discrimination, and the exceptions for which each statute provides are, through these provisions, incorporated so as to limit the protections given by Div 5 of Pt 3-1 of the Fair Work Act in a way which is intended to mirror the limits under those other legislative schemes. When read as a whole, ss 351 and 342(1) Item 1(d) will operate to render only conduct proscribed under other anti-discrimination regimes as conduct contravening s 351.

(Emphasis added.)

314    It is true, as Perram J observed in Rumble at [146], that the exception s 351(2)(a) appears to have no analogue in s 772(1)(f). That means that employees whose employment is terminated in NSW can bring an action for unlawful termination of their employment for a reason including political opinion but not a general protections application under s 351(1) on the same basis. His Honour described this as “idiosyncratic” and anomalous. In Foot and Thai Massage, however, I observed at [760]:

The “idiosyncrasy” or “anomaly” can be explained by the different history and constitutional foundations of the unlawful termination provisions in Pt 6–4 on the one hand and the general protection provisions in Pt 3–1 on the other. Still, the Ombudsman submitted that to avoid the “idiosyncratic anomaly” identified in Rumble, s 351(2)(a) should be read in the way she urged on the Court, namely to limit its operation to cases of specific exemptions or exceptions. But this would defeat the apparent intention of s 351(2)(a) without removing the anomaly, since s 772(1)(f) applies regardless of whether the conduct in question is covered by an exemption or exception in an anti-discrimination law. In any case, s 723 provides that a person must not make an unlawful termination application in relation to conduct if the person is entitled to make a general protections court application in relation to the conduct.

315    Section 772(1)(f) provides that an employer must not terminate an employee’s employment because of one or more of a number of attributes including their political opinion. Mr Quirk and Mr Miller had rights under the FW Act to complain that they had been unlawfully dismissed on the ground of their political opinions but not the rights they elected to exercise.

316    For these reasons, ground 4 of the cross-appeal fails and it is unnecessary to determine whether the primary judge erred in failing to determine issue 18.

Section 341(1)(c)(ii) – exercise of workplace rights?

Did the primary judge err in finding that the respondents did not exercise a ‘workplace right’ for the purposes of s 341(1)(c)(ii) of the FW Act by making the statements they made to the media (issue 19, cross-appeal grounds 2 and 5a)?

317    Section 340(1)(a)(i) of the FW Act provides that a person must not take adverse action against another person because the other person has a “workplace right”. “Workplace right” is defined in s 341(1), which provides:

Meaning of workplace right

A person has a workplace right if the person:

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