FEDERAL COURT OF AUSTRALIA

Shannon v Transfield Worley [2001] FCA 527

PRACTICE AND PROCEDURE – INDUSTRIAL LAW – EQUAL OPPORTUNITY –motion to amend statement of claim – respondents opposed motion – one issue raised by applicant was whether his employment was terminated for a statutorily prohibited reason – applicant sought to plead that first respondent (employer) terminated applicant’s employment on instructions from second respondent (its principal) on basis that second respondent’s reasons were to be taken to be the reasons for that termination – applicant conceded that first respondent itself did not actually hold any prohibited reasons for terminating his employment – sought to contend that it was sufficient that second respondent issued instructions for reasons which, if second respondent were his employer, would be prohibited reasons – applicant eschewed any reliance, in relation to first respondent’s purpose, on statutory presumption of purpose – whether applicant’s proposition of law reasonably arguable – second issue was whether reasonably arguable that “political conviction” in Equal Opportunity legislation extends to beliefs in relation to certain rights and obligations of employees and employers.

Workplace Relations Act 1996 (Cth), ss 298K, 298L(1)

Maritime Union of Australia v Geraldton Port Authority (1999) 93 FCR 34referred to

AWU v John Holland Pty Ltd [2001] FCA 93referred to

Wood v Lord Mayor, Councillors and Citizens of the City of Melbourne (1979) 41 FLR 1 referred to

General Motors Holden Pty Ltd v Bowling (1976) 12 ALR 605 referred to

General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 applied

Webster v Lampard (1993) 177 CLR 598 applied

Hospitals Contribution Fund of Australia v Hunt (1982) 44 ALR 365 referred to

Middleton v Western Australia (1992) 8 WAR 256 referred to

Dey v Victorian Railways Commissioners (1949) 78 CLR 62 applied

Burton v Shire of Bairnsdale (1908) 7 CLR 76 referred to

Ralph M Lee (W.A.) Pty Ltd v Fort (1991) 4 WAR 176 referred to

Theophanous v The Herald & Weekly Times Ltd (1994) 182 CLR 104 referred to

Stephens v West Australian Newspapers Ltd (1994) 182 CLR 211 referred to

ALBERT MARSHALL SHANNON v TRANSFIELD WORLEY and

WOODSIDE ENERGY LIMITED

W 144 of 2000

CARR J

4 MAY 2001

PERTH

THE COURT ORDERS THAT:

1.         The applicant have leave to amend his statement of claim in the manner referred to in the reasons published today.

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

REASONS FOR JUDGMENT

INTRODUCTION

1                     The Court has before it three notices of motion relating to the applicant’s statement of claim.  The first is a notice of motion by the second respondent seeking orders that the statement of claim against it be struck out on the basis that it discloses no reasonable cause of action, alternatively has a tendency to prejudice embarrass or delay the proceeding and alternatively is otherwise an abuse of the process of this Court.  In the alternative, the second respondent seeks an order that those paragraphs of the statement of claim which refer to it and the prayer for relief against it be struck out for the same reasons as just mentioned.

2                     The second notice of motion was filed by the first respondent two days before the return date of the second respondent’s motion (the hearing of which had earlier been adjourned by consent on the basis, as I then understood it, that the applicant proposed to amend his statement of claim in a manner which would accommodate the second respondent’s concerns).  In its motion the first respondent seeks orders relevantly identical, so far as it is concerned, to those sought in the second respondent’s motion.  The third motion, filed on the same day as the first respondent’s motion, is the applicant’s motion to amend his statement of claim in terms of a minute filed with that notice of motion.  A perusal of that minute shows that it contains amendments which are in response to some, or probably most, of the concerns expressed by the respondents in correspondence between them and the applicant and in submissions filed by the second respondent shortly before the first return date of the second respondent’s motion.  Both respondents oppose the applicant’s motion to amend his statement of claim, on the basis (in summary) that the Court should not grant leave to amend a pleading into a form which would be objectionable.  In those circumstances I decided to hear the applicant’s motion first because I considered that that course would be a less wasteful use of the Court’s resources and might well reduce the parties’ costs.  These reasons relate to that motion.

background

3                     In his amended application the applicant seeks against the first respondent damages for breach of an employment contract, damages for conspiracy, compensation pursuant to s 298U(c) of the Workplace Relations Act 1996 (Cth) (“the Act”) for its alleged breach of s 298K of that Act, interest upon any such compensation or damages and exemplary damages.  The applicant seeks against the second respondent damages for inducing breach of an employment contract, damages for conspiracy and exemplary damages.

4                     I think that the factual background of the matter can be summarised by reference to the more salient of the facts which the applicant has pleaded in the statement of claim and which he proposes to plead if given leave to amend.  This will also serve to focus on the statement of claim.  It is not a long document, comprising some 22 paragraphs.  As I have said, I shall not refer to all of the facts pleaded or sought to be pleaded, but only the salient ones.

5                     In paragraph 1 the applicant pleads that he was employed by a company called Woodside Offshore Petroleum Pty Ltd (“Woodside”) from 16 December 1983 to 1994 as a maintenance electrician/instrument fitter and that he was employed by the first respondent from 22 June 1999 to 13 August 1999 as a maintenance and modification employee.  In the same paragraph he pleads that from about February 1983 to the present he has been a member of the Communications, Electrical and Plumbing Union (“CEPU”) and its predecessor, the Electrical Trade Union (“ETU”) both of which are (or were, in the case of the ETU) industrial associations within the meaning of the Act.  Finally, in paragraph 1, the applicant pleads that for a period of approximately 8 of the years during which he was employed by Woodside, he was an active union shop steward for the ETU on Woodside’s North Rankin A gas platform on Western Australia’s north-west shelf.  In paragraph 2 the applicant pleads that the first respondent was at all material times an unincorporated joint venture of two companies named in that paragraph.  In paragraphs 3 and 4 of the statement of claim the applicant pleads the incorporation of those two companies and of the second respondent and the fact that each of them is a constitutional corporation within the meaning of the Act.  In paragraph 4(c) the applicant pleads that the second respondent is a wholly owned subsidiary of Woodside.  The application against the first respondent would seem to be brought in reliance upon Order 42 rule 2 of the Federal Court Rules, although there is no allegation that the joint venture is a partnership.  However, that matter is not the subject of any objection currently before the Court.

6                     In paragraph 5 of the statement of claim the applicant pleads that the first respondent (that is the joint venture) was engaged by the second respondent to provide both onshore and offshore plant maintenance, repair, servicing and other associated works on sites, installations and facilities operated by the second respondent.  This is said to have included the completion by the second respondent’s workers of the commissioning work and thereafter EX survey work on the offshore floating production storage offtake (“OFPS”) vessel, the “Cossack Pioneer” operated by the second respondent.

7                     In paragraph 6 of the statement of claim the applicant pleads that on or about 11 July 1999 he and the first respondent entered into a contract of employment (“the Employment Contract”).  By a combination of paragraphs 6 and 7 the applicant pleads that it was an express oral term of the Employment Contract that he would be employed by the first respondent as a dual instrument/electrical technician on the “Cossack Pioneer” for a fixed term being the period for completion of EX survey work on that vessel. 

8                     In paragraphs 8 and 9 of the statement of claim the applicant pleads in the alternative implied terms in the Employment Contract, namely, that the first respondent would not terminate his employment without reasonable notice and that it would not exercise its contractual rights under the Employment Contract (including any right to terminate such contract) and would otherwise deal with the applicant in relation to his employment in a bona fide manner which was fair and reasonable to the applicant.

9                     In paragraph 10 the applicant pleads that on or about 13 August 1999 the second respondent, by its servant Mr Steve Lewis instructed the first respondent by its servant Mr Kerry Rankin that the applicant was not to be employed at any facility owned or operated by the second respondent, relevantly, the “Cossack Pioneer” or otherwise for Woodside or any subsidiary or related entity.  That is pleaded in the present paragraph 10(a).  In the present paragraph 10(b) the applicant pleads that the first respondent by its servant Mr Rankin agreed to terminate the applicant’s employment forthwith.  Here one comes to the first of the proposed amendments.  The applicant seeks to make substantial amendments to paragraph 10 which, in summary, allege that the second respondent became aware at about that time (i.e. 13 August 1999) of the fact that the first respondent had employed the applicant in the capacity and for the period described above and had become aware (or ought to have become aware) of the implied terms, referred to above, of the Employment Contract.  There are other amendments, generally responsive to the second respondent’s abovementioned concerns, which I need not detail.  Neither respondent takes particular objection to the amendments proposed to paragraph 10.

10                  In paragraph 11 of the statement of claim the applicant pleads that in accordance with the discussion between the representatives of the two respondents as pleaded in paragraph 10 (the applicant proposes to amend this by further particularising the sub-paragraphs of that paragraph), the first respondent, on or about 23 August 1999, orally told the applicant that he had been removed from the roster of workers to return to the “Cossack Pioneer”, that the Employment Contract was terminated forthwith and that the applicant’s services were no longer required. 

11                  In paragraph 12 the applicant pleads that the termination of the Employment Contract referred to in paragraph 11 was in breach of the terms of the Employment Contract in that it breached the express oral term pleaded in paragraph 7 and further and alternatively breached each of the implied terms referred to respectively in paragraphs 8 and 9.

12                  In paragraph 13 the applicant pleads that the second respondent’s actions were taken by the second respondent in knowledge of the fact that the applicant was employed by the first respondent and were intended to and did encourage, persuade, procure, induce and cause the first respondent to breach the Employment Contract in the manner pleaded in paragraphs 11 and 12.  By a proposed amendment to paragraph 13 the applicant wishes to allege (again) knowledge or constructive knowledge on the first respondent’s part of the express and implied terms, referred to above, of the Employment Contract.

13                  Next, in paragraph 14, the applicant pleads that the first respondent terminated the Employment Contract for the reasons (or reasons which included one or more of such reasons) that –

“(a)     the Applicant was a person who believed in the assertion of workers’ rights to collectively bargain and to utilise legitimate industrial action to ensure employers observed their legal obligations towards their workers in terms of conditions of employment and occupational health and safety issues;

 (b)       the Applicant is and had been a delegate and/or member of the CEPU and ETU;

 (c)       the Applicant had participated in proceedings before the Industrial Relations Commission on behalf of the CEPU and ETU and its members against Woodside;

 (d)       the Applicant had participated in actions for the purpose of furthering or protecting the industrial interests of the ETU;

 (e)       the Applicant had participated in negotiations regarding enterprise bargaining agreements and award reviews on behalf of such unions with Woodside.”

14                  The applicant seeks leave to add some particulars, headed “Particulars of Attribution of Reasons” to paragraph 14.  Those proposed particulars are as follows:

“i)       The above reasons were the reasons, or were amongst the reasons for the Second Respondent providing the instruction to the First Respondent pleaded in paragraph 10(d) herein;

ii)         The First Respondent’s termination of the Applicant’s Employment Contract was caused by such instruction from the Second Respondent;

iii)        In such circumstances the First Respondent’s termination was for such reasons.”

15                  These proposed particulars lie at the heart of the respondents’ objections to the applicant’s proposed amendments to the statement of claim.  I shall henceforth refer to them as “the Particulars of Attribution of Reasons”.

16                  In paragraph 15 the applicant pleads that in terms of the first respondent’s reasons for its conduct in relation to dismissing him, he relies upon s 298V of the Act.

17                  In paragraph 16 the applicant pleads that the first respondent’s reasons for dismissing him were prohibited reasons within the terms of s 298L(1)(a), 298L(1)(i), 298L(1)(j) and/or 298L(1)(n) of the Act.  By proposed amendments the applicant relates each of those sub-paragraphs to the reasons pleaded in paragraph 14(b)-(e) of the statement of claim.

18                  In paragraph 17 the applicant pleads further and alternatively that the first respondent’s conduct in terminating the applicant’s employment was unlawful:

(a)        as it constituted a breach of the terms of the Employment Contract;

(b)        by reason of its conduct being for prohibited reasons as pleaded in paragraph 16 [in that] it contravened s 298K^* of the Act; and

[^*the applicant proposes to amend this to read s 298K(1)(a)]

(c)        by reason of the conduct being for the reason or reasons including those pleaded in paragraph 14(a), it constituted a breach of s 54 of the Equal Opportunity Act (WA).

19                  In paragraph 18 the applicant pleads that, further and in the alternative, in the circumstances pleaded in the statement of claim the second respondent wrongly conspired with, instructed, induced, encouraged, combined and/or agreed with the first respondent to injure the applicant by unlawful means (“the Conspiracy”) by doing the things alleged in paragraph 10(a).  By extensive proposed amendments to paragraph 18, the applicant seeks to delete the words which I have italicised immediately above and more fully particularise the alleged conspiracy.  I return below to those proposed amendments. 

20                  In paragraph 19 the applicant pleads that the Conspiracy was entered into for the predominant purpose of injuring the applicant.  By way of particulars to paragraph 19 the applicant says that the purpose of the conspiracy was to ensure that he would not be employed on any facility owned or operated by Woodside or its subsidiaries or related entities on the basis of his previous union activity whilst in the employment of Woodside between 1984 and 1994.  The applicant seeks leave to amend paragraph 19 in a manner which can be seen to respond to concerns earlier expressed by the second respondent.  It is not necessary to give details of those proposed amendments. 

21                  The applicant proposes to insert a paragraph 20A to plead that the conspiracy pleaded in paragraph 19 was carried out by the first respondent acting in the manner pleaded in paragraph 11 (i.e. terminating the applicant’s employment).

22                  In paragraph 20 the applicant pleads loss and damage and gives particulars.  In paragraph 21 the applicant pleads certain facts relating to his claim for exemplary damages.  In his prayer for relief from the respondents the applicant claims the relief sought in his originating application which I have described above.  I now turn to the second respondent’s objections to the proposed amended statement of claim.  The first respondent was content simply to adopt those objections.  Accordingly I shall refer to them as the respondents’ objections.

the respondents’ objections and my reasoning

inconsistency

23                  The respondents contended that paragraph 14 of the statement of claim gave rise to an “internal inconsistency”.  This was on the basis that in paragraph 10 the applicant pleads that the reason for the termination of his employment was the instruction given by Mr Lewis to Mr Rankin to the effect pleaded in that paragraph.  The respondents complained that in paragraph 14 the applicant pleads that there were several reasons for the termination of his employment as listed in sub-paragraphs (a) to (e) which I have set out in paragraph 13 of my reasons above.  The respondents contended that this gives rise to two problems.  First, if the first respondent did dismiss the applicant in compliance with an instruction from the second respondent, there was no causal connection between the first respondent’s conduct and the alleged prohibited reasons.  Secondly, so the respondents contended, the second respondent’s alleged reasons for its conduct cannot be attributed to the first respondent.  This second point forms the subject of the two main issues debated between the parties in the motion.  I deal with that issue in a separate section of these reasons below, under the heading which starts “Attribution of the Second Respondent’s Reasons to the First Respondent”.

24                  In relation to the first point, in my view, it is sufficiently clear from reading paragraphs 10, 11 and 14, that in paragraph 10 the applicant pleads a causal link between the instruction given by Mr Lewis to Mr Rankin and Mr Rankin’s agreement to comply with that instruction.  The termination of employment, which took place some ten days later, is pleaded in paragraph 11.  It is true that there are other reasons pleaded in paragraph 14.  But I see no relevant inconsistency.  The applicant is pleading that the actions of the second respondent caused the first respondent to terminate his employment and also that the first respondent did so for reasons which included one or more of the five reasons particularised in paragraph 14.  In summary, the applicant has pleaded that the second respondent has caused the first respondent to act unlawfully in terminating his employment.

25                  I reject that portion of the respondents’ inconsistency objection as is based on the submission that there was no causal connection pleaded between the first respondent’s conduct and the alleged prohibited reasons.  To that point, I consider that the statement of claim as pleaded is not objectionable in the manner suggested.

confusion said to arise out the use of the word “instructed”

26                  The second respondent submitted that there was a further inconsistency between paragraphs 10 and 14.  This was because in proposed particular (ii) of paragraph 14 the applicant proposes to state that the first respondent’s action in terminating the applicant’s employment was caused by the second respondent’s “instruction”.  There is also a reference to that instruction in paragraph 10(d).  The second respondent pointed to the plea in paragraph 10(f) that the first respondent “agreed” to terminate the applicant’s employment.  The second respondent submitted that the pleas would be embarrassing because it would be uncertain whether the applicant was pleading that the second respondent instructed the first respondent, in the sense that it gave the latter a command or direction which it was in some way or for some reason compelled to follow, or alternatively that the second respondent made a request of or a proposal to which the first respondent agreed.

27                  I reject this submission.  The applicant’s case is sufficiently clear.  It pleads that it was instructed by the second respondent to terminate the applicant’s employment and that it agreed to act in accordance with such instruction.  Under the modern system of pleading, it is quite clear that the applicant, on this pleading, would be entitled to lead evidence as to the terms of the instruction and the terms of the acceptance of the instruction.  In fact, at the hearing of the motion, the respondents did not really press this objection.  I now turn to the first of the two main sets of objections, being that which is based on the Particulars of Attribution of Reasons. 

attribution of the second respondent’s reasons to the first respondent – the respective submissions and my reasoning

28                  I should mention that the parties were content to have this motion decided by the application of a test analogous to that explained in General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 i.e., in relation to this point that if the applicant’s proposition for attribution of the second respondent’s reasons to the first respondent (and any other legal proposition contended for by the applicant in his pleading) was not reasonably arguable in law then he should not be allowed to amend his statement of claim to plead the particular cause of action in that manner.  In my opinion, that is the correct approach.  There are no disputed issues of fact – in particular, it is common ground that the first respondent did not terminate the applicant’s employment for any reason actually held by it which was a prohibited reason, cf Webster v Lampard (1993) 177 CLR 598 at 602-603.

29                  The respondents contended that, as a matter of well-established law, the second respondent’s alleged reasons for instructing the first respondent to terminate the applicant’s employment, being the reasons set out in paragraphs 14(a) to (e), could not be attributed, in the manner described in the proposed Particulars of Attribution of Reasons, to the first respondent.  They relied on two fairly recent decisions of this Court in Maritime Union of Australia v Geraldton Port Authority (1999) 93 FCR 34 and AWU v John Holland Pty Ltd [2001] FCA 93, an earlier case of Wood v Lord Mayor, Councillors and Citizens of the City of Melbourne (1979) 41 FLR 1, and a decision of the High Court of Australia, General Motors Holden Pty Ltd v Bowling (1976) 12 ALR 605.

30                  Mr R L Le Miere QC who, with Mr D F Parker, appeared for the second respondent submitted that when considering a contravention of s 298K it was the actual operative reasons of the employer which fell to be considered.  It was not arguable, as a matter of law, that the second respondent’s reasons could be attributed to the first respondent. 

31                  Mr Le Miere submitted that it was not enough merely that there be a connection between, for example, union membership and the termination (i.e. that the second respondent wanted the applicant to be dismissed because he was a member of the relevant union and so instructed the first respondent), but there had to be a causal connection between the first respondent’s conduct and, in this example, the applicant’s union membership.  The inquiry had to be directed to the reasons of the employer – citing Geraldton Port Authority at [294]-[295].  The relevant reason, so it was submitted, had to be a reason which actuated the mind of the employer.  This could not be so in this case, because the applicant’s case was that the first respondent did not even know of the matters which were said to be the reasons which actuated its conduct in terminating his employment.  The applicant’s solicitors by a letter dated 19 April 2001 to the first respondent’s solicitors had conceded that it was not part of the applicant’s case that any of the pleaded reasons were advised to or known by the first respondent at the material time.  The respondents argued that if an employer did not know the subject matter of the relevant reason it could not be actuated by such a reason.  They relied also, for that proposition, on the decision in John Holland where (at [42]) Goldberg J found that the major operative reason why the executives of the respondent terminated Mr McGee’s (the relevant employee in that case) employment was a reason which did not fall within the statutorily-prohibited reasons and that their reasons did not include such a prohibited reason.  In that case Mr McGee’s membership of the applicant union (and certain other matters personal to him) caused a rival union, which I shall refer to as “the CFMEU”, to put pressure on the respondent to terminate Mr McGee’s employment.  Mr Le Miere submitted that Mr McGee’s membership of the AWU may have been the catalyst for the CFMEU’s antagonism to him, but that antagonism for that reason was not “transferred” to the respondent in that case.  He submitted that the factual circumstances in John Holland were very similar to those in the present matter.  Again, in Wood’s case the defendant had stood Mr Kane (the relevant employee) down following pressure from the union involved in that matter.  The union’s reasons for wanting Mr Kane to be stood down were prohibited reasons but those reasons had not been attributed, without more, to the employer.  The respondents also relied on General Motors Holden Pty Ltd v Bowling for the same proposition – that being a case on s 5(1) of the Conciliation and Arbitration Act 1904 (Cth) which could be considered as a predecessor of s 298K of the Act.

32                  I now turn to the applicant’s submissions in support of the proposition that it is reasonably arguable that an employer’s conduct may be “for a prohibited reason” where the employer does not actually have such reasons, but those reasons are held by another person and are causally connected to the employer’s conduct.  Those submissions can be summarised as follows.  First, it is said that although an intent by the employer will admittedly be the most common way in which a causal connection can exist between the employee’s prior conduct as described in the various sub-paragraphs of s 298L(1) and the dismissal and other prejudicial conduct referred to in s 298K, that is not required by the literal terms of s 298L(1). 

33                  Section 298K(1)(a) relevantly provides that:

“An employer must not, for a prohibited reason, or for reasons that include prohibited reason, do or threaten to do any of the following:

. . .”

34                  Section 298L relevantly provides that conduct referred to in subsection 298K(1) or (2) is for a prohibited reason if it is carried out because the employee, independent contractor or other person concerned:

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

 . . .

 (i)       has made or proposes to make an inquiry or complaint to a person or body having the capacity under an industrial law to seek:

              (i)       compliance with that law; or

              (ii)      the observance of a person’s rights under an industrial instrument; or

 (j)       has participated in, proposes to participate in or has at any time proposed to participate in a proceeding under an industrial law; or

 . . .

 (n)      as an officer or member of an industrial association, has done, or proposes to do, an act or thing for the purpose of furthering or protecting the industrial interests of the industrial association, being an act or thing that is:

              (i)       lawful; and

              (ii)      within the limits of an authority expressly conferred on the employee, independent contractor or other person by the industrial association under its rules.”

35                  The applicant submitted that the use of the word “because” in the opening words of s 298L only required a causal relationship between the action of, relevantly, terminating employment and the current or prior industrial actions of the employee.  There was no express provision that the termination must be motivated by the employer’s knowledge of such prior conduct or some disapproval of it.  The applicant pointed out that s 298K did not specify (and could have, had this been the test proposed) intent on the employer’s part.  It was reasonably arguable that it was enough that a chain of events such as occurred in the present matter was precipitated by activity of the type referred to in s 298L.

36                  Secondly, the applicant sought to distinguish John Holland and Wood on the basis that in both of those cases it was clear that the employer had substantial motivating reasons (other than prohibited reasons) for terminating the employee’s employment.  By contrast in this matter, so the applicant submitted, the first respondent had no motives or reasons of its own leading to the termination of the applicant’s employment, but simply acted in accordance with the request from the second respondent.  The applicant sought to rely upon references by Goldberg J in John Holland to the attitude of the CFMEU being overtaken by the realisation by the employer’s representatives of other matters which caused it to terminate Mr McGee’s employment (see John Holland at [42]) and a further reference at [49] in that case to the interposition of other factors between the CFMEU’s antipathy to Mr McGee and the termination of his employment.  The applicant said that this raised the question of what would be the position if a third party’s attitude had not been “overtaken” or some other factor not been “interposed”.  Similar reasoning was said to occur in Wood where at p 15 Smithers J, when referring to s 5(1) of the Conciliation and Arbitration Act said:

“Those words imply that the employer’s hostile action against the non-striker is taken because the employer disapproves of the failure to join with the fellow employees in the strike or at least reacts to that aspect of the situation in a manner injurious to the non-striker.”  [Emphasis added]

37                  The applicant submitted that it was arguable that the fact that the first respondent simply reacted to the second respondent’s request (based on what would be prohibited reasons had that party been the employer) brought the conduct within s 298K.  The question was still open, so it was put, whether or not a sufficient causal connection can exist between a third party’s antipathy and termination of employment where the employer has no individual “overtaking” “overwhelming” or “interposing” motives for action.  This was said to be in accordance with the object of the Act, namely to protect employees from discrimination or prejudicial action because of their union or other industrial actions.  The evil, so it was submitted, was the same from the employee’s perspective whether the prejudicial impact originated from the employer or a head contractor.  The applicant acknowledged that it would still be necessary to establish causation, in accordance with usual principles. 

38                  The applicant relied upon a line of authorities for the proposition that a court at first instance should be careful not to risk stifling the development of the law by summarily rejecting a claim where there is a reasonable possibility that as the law develops, it will be found that the cause of action will lie.  The authorities included Hospitals Contribution Fund of Australia v Hunt (1982) 44 ALR 365 at 373 and Middleton v Western Australia (1992) 8 WAR 256.

39                  In reply, on the policy issue, Mr Le Miere pointed to the fact that the provisions were penal in nature and that if the applicant’s argument were correct it would be possible, as in this case, for an employer (the first respondent here) to be found to be in contravention of the Act without having any knowledge of the reasons which caused the third party (the second respondent) to press for the termination of the applicant’s employment.

40                  As I see it, what the applicant is seeking, in effect, to plead in the Particulars of Attribution of Reasons in paragraph 14 is that because the second respondent’s instruction caused the first respondent to terminate the applicant’s employment and because, in giving that instruction, the second respondent had reasons which (had the second respondent been the employer of the applicant) would have been prohibited, then it is reasonably arguable as a matter of law that the first respondent’s conduct is to be taken to have been carried out for the same reasons.

41                  When these motions came on for hearing, Mr J R Johnson, counsel for the applicant, made it clear that the applicant had no other basis for attributing to the first respondent the prohibited reasons.  He said:

“… whether it [the applicant’s case] stands or falls – will be that it was the second respondent who had the pleaded reasons for issuing the instruction to the first respondent who was the employer to immediately terminate employment.  We will not be alleging that the first respondent intended or had a motive to terminate employment on those grounds.  It was the second respondent’s reasons for giving the instruction to the first respondent to terminate.

We don’t make any allegations of knowledge of that.  We simply say that in our view it’s arguable that that falls within the prohibition in the (A)ct.

. . .

All that we can prove is that the first respondent acted on the instruction of the second respondent, so its motive was simply that it was told to do something.  It did not harbour any acrimony towards the applicant on the basis of his previous union activity or any of the other things that we have pleaded as reasons for the termination, so our case depends on accepting that the prohibition is not simply a question of the motives of the employer.  If, your Honour, you conclude that the prohibition only applies if it’s the motives of the employer for terminating or taking the other forms of action set out in the section, then that claim should be struck out.”

42                  Mr Johnson then, in answer to a question from me, expressly eschewed any reliance in respect of the first respondent, upon s 298V of the Act (which relevantly elevates an allegation of conduct being carried out for a particular reason to a presumption to that effect) other than via the second respondent’s reasons.  The applicant thus concedes that the first respondent did not dismiss the applicant for any reason on its part that falls within those identified as prohibited reasons in s 298L(1).  The question is whether it is sufficiently clear that in those circumstances, as a matter of law, the claim based on s 298K of the Act must fail? 

43                  Recognising, as I do, that this is not an application for summary judgment, I think that I can still draw some guidance on the approach to be taken to this issue from the observations of Mason CJ, Deane and Dawson JJ in Webster v Lampard at 602 and their Honours’ citation of the well-known passage in Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 91.  Adapting those observations, the question is not whether the respondents will probably succeed on this point in their defence, but whether this part of the application should not be permitted to go to trial in the ordinary way because it is apparent that it must fail.  Is there a real question of law to be determined?

44                  These are stringent tests from the respondents’ viewpoint. 

45                  Nevertheless, in the somewhat unusual circumstances of this matter, I think that the respondents have discharged their heavy onus. 

46                  I should record that I take into account, in acceding to the respondents’ submissions, the fact that the short legal point which the applicant seeks to raise has been the subject of quite extensive written submissions on both sides and oral argument on the two separate occasions (the hearing of the motion had to be adjourned for a few days, part heard) of the hearing of the motion.  I am conscious of the observation of Higgins J in Burton v Shire of Bairnsdale (1908) 7 CLR 76 at 98 that:

“It is surely absurd to argue for days as to a plaintiff’s case being arguable.” 

47                  But that was in the context of a summary termination of an action where there were evidentiary matters to be resolved.  See also Barwick CJ’s observations in General Steel Industries at 130 about the usefulness, on occasion, of extensive argument in matters of this kind.

48                  I refer to the fullness of argument as a relevant factor because, focussed as it was on a short point of law, in my view, it caused the legal position to become clear to the requisite degree.

49                  In my opinion, it is very clear indeed that the literal interpretation of s 298K(1) and s 298L advanced by the applicant must fail.  Section 298K(1) prohibits, in strong mandatory terms, an employer from, relevantly dismissing an employee for a prohibited reason or for a reason that includes a prohibited reason.  The word “for” qualifies the reason why the employer engages in that conduct.  In my view, it is not reasonably arguable that the reasons referred to in s 298K can mean reasons which are not held by the employer.  The applicant’s reliance upon the word “because” in s 298L is misplaced when he says that this word requires that there be only a causal connection.  The word “because” simply means “for the reason that” – see the Newer Shorter Oxford English Dictionary at 201 and the Macquarie Dictionary at 154.  I now turn to the authorities which the applicant sought both to distinguish and rely upon to some extent.

50                  In each of the authorities discussed above (on the question of an employer’s reasons) the Court has sought to identify the actual reasons of the employer.  The observations made by Goldberg J and Smithers J in John Holland and Wood respectively, upon which the applicant relies, were only in the course of passing from an assessment of the third party’s motivations to an analysis of the employer’s reasons in each case.  They do not, in my view, render arguable the proposition which the applicant advances.

51                  If, as the applicant concedes, there is a vacuum devoid of prohibited reasons on the first respondent’s part, it does not follow, as a reasonable argument, that that vacuum must be filled with the reasons held by the second respondent.

Paragraphs 18 and 19 of the proposed statement of claim

52                  The respondents objected to these paragraphs on the basis that paragraph 19 pleads a “conspiracy, combination or agreement” between the first and second respondents, but paragraph 18 pleads that the conspiracy is constituted by the second respondent having “instructed, induced, encouraged” as well as “conspired with, … combined and/or agreed with” the first respondent to injure the applicant.  The respondents’ point was that instructing, inducing or encouraging somebody to unlawful action is not a conspiracy.  This objection has been resolved by the applicant’s agreement to delete the words “instructed, induced, encouraged”.  He will have leave so to amend paragraph 18.

alleged breach of s 54 of the equal opportunity act 1984 (w.a.)

53                  Section 54 of the abovementioned Act relevantly provides that it is unlawful for an employer to discriminate against a person on the grounds of the person’s religious or political conviction by dismissing the employee. 

54                  It appears from the proposed paragraph 18(c) of the statement of claim that the applicant supports this cause of action by a plea that the second respondent’s reason for instructing the first respondent to terminate his employment included the reason that [as pleaded in paragraph 14(a)] he was a person who believed in the assertion of workers’ rights to collectively bargain and to utilise legitimate industrial action to ensure employers observe their legal obligations towards their workers in terms of conditions of employment and occupational health and safety issues.

55                  The respondents raised two objections to this plea.  First, they said that the beliefs referred to in paragraph 14(a) do not fall within the expression “political conviction”.  They rely on the decision of Anderson J in Ralph M Lee (W.A.) Pty Ltd v Fort (1991) 4 WAR 176 at 183 where his Honour drew the distinction between, in that case, industrial activity to maintain and improve working conditions, and convictions which had to do with government i.e. the policies of government, the structure, composition, role, obligations, purposes or activities of government.  The respondents also relied on a line of cases discussed in “Australian and New Zealand Equal Opportunity Law and Practice” at 7,904-7,951 and 8,051-8,052.

56                  The applicant submitted that such a narrow formulation of “political conviction” was no longer sustainable.  It was no longer sustainable, so it was put, because the High Court decisions of Theophanous v The Herald & Weekly Times Ltd (1994) 182 CLR 104 and, to a lesser extent, Stephens v West Australian Newspapers Ltd (1994) 182 CLR 211 had extended the concept of “politics”. 

57                  In my view, it is reasonably arguable that the beliefs described in paragraph 14(a) are distinguishable from purely private or ethical beliefs to the extent that they are sufficiently concerned with public rights and obligations as to fall within the description “politics”.  Accordingly, I would not strike out the plea on that basis. 

58                  The second basis upon which the respondents attacked the plea was that, in the circumstances pleaded, the alleged reasons for the second respondent’s conduct could not be attributed to the first respondent.

59                  The arguments which the applicant earlier addressed on this point of attribution or causation, based as they were on a literal construction of s 298L(1) of the Act and its predecessors were (not surprisingly) not put forward by the applicant in relation to s 54 of the Equal Opportunity Act.  In fact the applicant made no separate submissions on the “attribution” point in the context of the Equal Opportunity Act.

60                  However, the applicant has acknowledged that the first respondent did not have any of the reasons referred to in paragraph 14 of the statement of claim.  This would, of course, include the reason described in paragraph 14(a) which is the one referring to the Equal Opportunity Act. 

61                  In those circumstances, I think that it is sufficiently clear that it cannot be said that the first respondent discriminated against the applicant on the ground of his political conviction.  There is a specific provision, (in s 56 of the Equal Opportunity Act), whichdeals with discrimination against contract workers.  I acknowledge that, on the facts of the present case, there may be some argument about whether the applicant fell squarely within the definition of “contract worker” because it might be said that he did not do work “for” another person (i.e. the second respondent) pursuant to a contract between his employer and that other person.  However, I think that s 56 makes it sufficiently clear that the “ground” upon which the employer acts is the actual ground or reason of the employer.  The applicant should not be allowed to plead to the effect that the second respondent’s reasons are to be taken as the first respondent’s grounds for terminating his employment.

Conclusion

62                  For the above reasons, I consider that the applicant should have leave to amend his statement of claim in accordance with the Minute of Proposed Amended Statement of Claim filed on 17 April 2001 only in the manner proposed in the following paragraphs of that document:

(a)        paragraph 10

(b)        paragraph 11

(c)        paragraph 13

(d)        paragraph 18 by deletion of the words “instructed, induced, encouraged,” in line 2 and in the manner otherwise shown in that paragraph, but excluding proposed sub-paragraphs (b) and (c);

(e)        paragraph 19

(f)         paragraph 20A

(g)        paragraph 20(b)(ii)

63                  It seems to me that in relation to the respective strike-out motions of the first respondent and the second respondent, their concerns would probably met by the above proposed orders and by an order deleting paragraph 3 of the prayer for relief against the first respondent and deleting the words “compensation and/or” in paragraph 4 of each of the prayers for relief against the first respondent and the second respondent.  That would probably be dependent upon the applicant agreeing that, consistent with these reasons, those amendments should be made to the respective prayers for relief and that paragraphs 14, 15 and 17(b) and (c) should be struck out.

64                  I will adjourn those motions for hearing at a later date if necessary.  Alternatively, the parties may care to file consent orders in relation to those motions.

A/g Associate:

Dated:              4 May 2001