1                     The applicant is an organisation registered under the Workplace Relations Act 1996 (Cth) (the Act), whose members are employees in the meat industry. In this application, the applicant alleges that Belandra Pty Ltd (Belandra), the first respondent, which carried on the business of processing meat, refused to employ certain employees and/or altered the position of those employees to their prejudice, for the reason that the employees were members of the applicant, and/or for the reason that the employees were entitled to the benefit of an industrial agreement, contrary to ss 298K(1)(c) and (d), and ss 298L(1)(a) and (h) of the Act.

2                     Pursuant to s 298U of the Act, the applicant seeks the imposition of penalties against Belandra for breaches of the Act, and also seeks restraining orders and orders for compensation. It was agreed by the parties that the Court would initially determine whether Belandra had acted in breach of the Act as alleged, and, if that was found to be the case, the Court would then hear and determine issues relating to appropriate relief. As the case was ultimately argued at trial, the applicant did not allege any breach of the Act by the other respondents. They were joined as parties to the proceeding so that, if the Court found Belandra had breached the Act as alleged, the applicant could seek orders against them where necessary to make effective any orders made against Belandra. The first, fourth and fifth respondents were represented separately to the second and sixth respondents, and the third respondent. However, as they all adopted each others’ arguments, the arguments raised by any of the respondents are attributed in these reasons to all respondents.

3                     These reasons for judgment determine only whether Belandra acted in breach of s 298K(1)(c) and (d) of the Act as alleged. This question raises a number of issues of law concerning the proper interpretation of s 298K and s 298L, and several contentious issues of fact. The general factual setting is largely uncontentious and the following description represents my findings of fact in relation to those circumstances. The contentious legal and factual issues will be dealt with in due course.

4                     In 1996, Belandra commenced a beef slaughtering facility with associated operations at an abattoir at 30 Industry Park Drive, Brooklyn in the State of Victoria (the Brooklyn site). The Brooklyn site was owned by a related company, Industry Park Pty Ltd (Industry Park). As at 20 June 2001, Belandra employed about 160 people in that operation. The major customer of the beef slaughtering operation was Coles Supermarkets Australia Pty Ltd (Coles Supermarkets). The arrangement was that Coles Supermarkets supplied the stock and Belandra provided slaughtering services. Mr Sean Carroll, the sixth respondent, was employed by Belandra as the works manager at the Brooklyn site. It was accepted by the parties that all but two of the production employees of Belandra who were eligible to be members of the applicant, were in fact members of the applicant. The terms and conditions of employment of the production employees were governed by the Belandra Pty Ltd and the Australasian Meat Industry Employees’ Union Victorian Meat Processing Agreement 2000 (the 2000 Agreement), which was certified by the Australian Industrial Relations Commission on 20 July 2000.

5                     Four other operations were conducted at the Brooklyn site. Three of these were conducted by companies controlled either by Mr Joseph Catalfamo or Mr Gilbert Cabral and his family. The fourth, a boning operation, was operated by Collinsons, an unrelated company. Belandra Trading Pty Ltd (Belandra Trading) conducted a small stock slaughtering operation and employed about 200 people for that purpose. EM Processors Pty Ltd (EM Processors) conducted a beef boning operation and employed about 110 employees for that purpose. The major work of this operation was the boning of the beef slaughtered by Belandra for Coles Supermarkets. Finally, EM Packers Pty Ltd (EM Packers) employed about 70 people in connection with lamb cutting, and 60 people in connection with beef boning, in another boning room at the Brooklyn site.

6                     The affairs of Belandra are controlled by Mr Catalfamo, a director and majority shareholder of the company. Belandra Trading and Industry Park are wholly, or almost wholly, beneficially owned by Belandra, and thus, Mr Catalfamo also controls those companies. Mr Cabral is the managing director of Belandra, and also of Belandra Trading, EM Packers and EM Processors. The other two directors of Belandra are Mr Frank Oravec, also the general manager of Belandra, and Mr Lode. Mr Cabral was born in 1960 and has had about twenty years experience in the meat industry. Mr Catalfamo was born in 1948. His experience and relationship with the Cabral family was described in evidence by him as follows:

‘I had extensive experience, having been involved in the industry since the early 60s, where I started off as a butcher, apprentice. I had grown a network of people. I was – my credibility was second to none in the industry. When I was excluded from the export industry [for ten years, as a result of findings made by the Woodward Royal Commission] I went on to start rebuilding my retail chain of butcher shops which [I] had, right throughout the 70s. I could not participate in the export industry, hence I passed on some of –Mr Cabral’s father, Mr Gilbert Cabral’s father, had been working for me as an accountant since 1980. We had built a very strong relationship. His son Gilbert came to work for me to run Richmond Ice in 1985 or thereabouts or 86. He did a fantastic job. He wanted to progress, he was a young man, so I channelled him, basically directed him into the export stream and basically gave him advice, gave him contacts, guaranteed – some guarantees for him by way of – negotiated leases for him because of my experience to a point where I knew that one day I would be cleared and I could participate again in that business. That’s basically the whole story.’

7                     Mr Catalfamo was, by reason of age, experience, and family relationship, a kind of mentor for Mr Cabral. It was clear from the oral evidence which he gave at the trial, that he was the dominant voice in relation to the affairs of Belandra. It was not in contention that Mr Catalfamo effectively made the decisions relevant to this case, albeit after consultation with Mr Cabral, and also with the other directors of Belandra.

8                     On 20 June 2001, a fire destroyed the Brooklyn site except for the boning room operated by EM Processors. The employees of EM Processors resumed work within a few days of the fire. The employees of Belandra, and of Belandra Trading and EM Packers, were dismissed because there was no work for them to do.

9                     However, Belandra intended, at that time, to restart the slaughtering operation, and to reemploy the work force. Mr Catalfamo told this to officials of the applicant at a meeting held at the Brooklyn site on 22 June 2001, two days after the fire. This was confirmed by Mr Oravec, in the course of a hearing in the Australian Industrial Relations Commission on 12 July 2001, in a dispute related to the boning operation of EM Processors:

‘Now, there is no question that all these people of EMP, Export Meat Packers, will be re-employed as soon as the company starts that activity. That has been promised and that will be done. The same as the people who will be re-employed from Bilandra [sic] Proprietary Limited, Bilandra [sic] Trading Proprietary Limited. It is just a question, where do we re-employ them because we have no facility; they are gone in the fire.’

10                  Belandra’s intention to reemploy its production work-force is reflected in its decision to withhold severance payments at the date of dismissal. Such a course was permitted under s 2.8 of the 2000 Agreement. The relevant paragraphs of the 2000 Agreement provided:

‘2.8.1 This clause shall apply where the employer decides to close down permanently all or part of an operation or calls for voluntary redundancies.

…

2.8.3 In the event that employees are to be terminated as prescribed in clause 2.8.1 the following payments shall be made:

(a)               two weeks payment in lieu of notice

(b)               two weeks pay for each year of completed service

(c)               pro rata payment for each completed month of an uncompleted year

provided that such payment shall not exceed twenty six (26) weeks of ordinary pay, and such payments shall be at ordinary rates of pay as defined in clause 6.3 (Long Service Leave).

2.8.4 In the event that employees are terminated on the basis they will be re-employed and are subsequently not re-employed within eight (8) months, this clause shall apply with an additional payment of 10% of the amount payable under clause 2.8.3.’ [emphasis added]

11                  Then, the event which is at the centre of this case occurred. Around mid-September 2001, Mr Catalfamo, in consultation with Mr Cabral and Mr Oravec, decided that Belandra would not resume operations and would not reemploy the production employees who had worked for Belandra immediately prior to the fire (the Belandra employees). In his affidavit sworn on 4 September 2002, Mr Catalfamo stated that his reasons for that decision involved a change in business direction and strategy. He stated that he came to realise that he and the other directors of Belandra no longer had the production expertise to oversee a meat production operation and would do better to focus on other areas such as marketing or research. Further, escalating costs meant that Belandra faced insolvency if it did not change its way of operation. The applicant’s opposing contention is that an operative reason for Mr Catalfamo’s decision was that the Belandra employees were members of the applicant and/or the employees were entitled to the benefit of the 2000 Agreement. Mr Catalfamo’s reasons for deciding not to reemploy the Belandra employees will be examined in some detail later in these reasons.

12                  It followed from Belandra’s decision to not reemploy the Belandra employees that Belandra was required to pay those employees their outstanding severance entitlements, together with an additional payment of 10 per cent of that amount, in order to comply with the requirements of cl 2.8.4 of the 2000 Agreement. This was done in March 2002.

13                  At about the time the final severance payments were made, several other significant events occurred.

14                  First, Mr Catalfamo and Mr Cabral, through various corporate vehicles, acquired another abattoir site located at Kyle Road, Altona (the Altona site). The Altona site was an asset of Tasman Group Services Pty Ltd (TGS) (then known as SBA Foods Pty Ltd), the fourth respondent. Tasman Group Holdings Pty Ltd (TGH) (then known as Tasman Group Services Pty Ltd), the fifth respondent, acquired all of the shares in TGS on 1 March 2002. Mr  Catalfamo and Mr Cabral each hold 50 per cent of the shares in TGH. They had been negotiating for the acquisition of the assets and business of SBA since November 2000. The acquisition was delayed when the bank, as a result of the uncertainty caused by the fire, refused to provide finance for the transaction. Following the fire at the Brooklyn site, Belandra contracted with other abattoirs to slaughter cattle in order to continue to meet the Coles Supermarket contract. Although Altona had not operated as an abattoir since 1999, Mr Catalfamo and Mr Cabral decided that TGS would reopen the Altona site in order to provide slaughtering facilities for the Belandra stock.

15                  Second, Mr Catalfamo and Mr Cabral decided that TGS would not manage the slaughtering operation at the Altona site. Rather, it would engage a management company for that purpose. In late March 2002, Mr Cabral spoke to Mr Carroll about undertaking the management of the proposed slaughtering operation at the Altona site. It will be recalled that Mr Carroll had been the works manager for Belandra prior to the fire. A few days after the fire, on 24 June 2001, his employment had been transferred to Industry Park, and, in that capacity, he had overseen the beef slaughtering carried out for Belandra by external contractors. Within six weeks, Mr Carroll and Mr Cabral reached an oral agreement that Mr Carroll would acquire and operate a management company to run the slaughtering operation for Belandra at Altona. On 17 May 2002, Mr Carroll acquired all the shares in Larberg Pty Ltd (Larberg), the second respondent, for this purpose. Under the agreement, Larberg would supply management, supervisory and production staff, and would pay all necessary registration and licence fees. TGS was to provide the premises, including the slaughtering facilities, and meet the running costs of the operation, such as electricity and water. TGS was to pay Larberg a fee per beast processed.

16                  Following the making of the oral agreement, Larberg proceeded to arrange for the staffing of the operation. It engaged fourteen permanent employees, including a production manager, a quality assurance manager, slaughter floor supervisors, and load out supervisors. All fourteen had previously been employed by Belandra or Belandra Trading at the Brooklyn site. Larberg obtained quotes from two labour hire companies for the provision of production workers. On 12 June 2002, Webb Labour Hire Pty Ltd (trading as ESP Tecforce) (ESP Tecforce), the third respondent, provided a quote to Larberg specifying separate hourly rates, inclusive of statutory charges, for the supply of slaughtermen and labourers. Larberg accepted the quote. It was arranged that each afternoon Larberg would notify ESP Tecforce of its labour requirements for the following day. On 1 July 2002, slaughtering operations began at Altona under these arrangements, and in the following months, ESP Tecforce supplied about 100 workers for the operation. Most of the workers supplied by ESP Tecforce had previously worked for Belandra at Brooklyn. Although not all the workers supplied were engaged under Australian Workplace Agreements (AWA’s), ESP Tecforce regarded AWA’s as the most appropriate industrial instrument for the operation. The rates quoted by ESP Tecforce to Larberg could not be maintained if ESP Tecforce had to engage the production workers on the terms of the 2000 Agreement.

17                  Thus, from June 2001 to July 2002 some things changed and some things remained the same. At all times, Belandra retained the contract to supply beef to Coles Supermarkets. At all times, the people who managed and supervised the beef slaughtering operation were essentially the same people. At all times, the people who worked on the slaughter floor were essentially the same people. Therefore, the supplier remained the same, the product remained the same, the people who managed the production remained the same, the people who produced the product remained the same, and the customer remained the same. The provider of the slaughter facilities remained one or other company controlled by Mr Catalfamo, or by Mr Catalfamo and Mr Cabral. What changed over that period was that the people who worked on the slaughter floor were employed by another employer. As a result they were no longer employed under the 2000 Agreement and, as a further result, the applicant no longer had the role of collectively representing those employees. The applicant alleges that, whilst Belandra retained the same essential operation, it arranged its affairs to rid the workplace of the influence of the applicant, and of the need to comply with the 2000 Agreement. In so doing, the applicant alleges, Belandra engaged in conduct in breach of s 298K(1)(c) and (d) for reasons proscribed in s 298L(1)(a) and (h).

18                  It is convenient now to set out the statutory provisions which bear upon the questions raised in this case. The emphasised provisions are those upon which the applicant relies to ground the liability of Belandra.

‘298K(1) [Prohibited reasons for certain conduct by an employer] An employer must not, for a prohibited reason, or for reasons that include a prohibited reason, do or threaten to do any of the following:

(a)               dismiss an employee;

(b)               injure an employee in his or her employment;

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

(d)               refuse to employ another person;

(e)               discriminate against another person in the terms or conditions on which the employer offers to employ the other person.

298L(1) [Interpretation] 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 or has at any time proposed to become an officer, delegate or member of an industrial association; or

(b)               is not, or does not propose to become, a member of an industrial association; or

(c)               in the case of a refusal to engage another person as an independent contractor:

(i)                 has one or more employees who are not, or do not propose to become, members of an industrial association; or

(ii)               has not paid, or does not propose to pay, a fee (however described) to an industrial association; or

(d)               has refused or failed to join in industrial action; or

(e)               in the case of an employee – has refused or failed to agree or consent to, or vote in favour of, the making of an agreement to which an industrial association of which the employee is a member would be a party; or

(f)                has made, proposes to make or has at any time proposed to make an application to an industrial body for an order under an industrial law for the holding of a secret ballot; or

(g)               has participated in, proposed to participate in or has at any time proposed to participate in a secret ballot ordered by an industrial body under an industrial law; or

(h)              is entitled to the benefit of an industrial instrument or an order of an industrial body; or

(i)                 has made or proposes to make any 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

(k)               has given or proposes to give evidence in a proceeding under an industrial law; or

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

(m)             in the case of an employee or an independent contractor – has absented himself or herself from work without leave if:

(i)                 the absence was for the purpose of carrying out duties or exercising rights as an officer of an industrial association; and

(ii)               the employee or independent contractor applied for leave before absenting himself or herself and leave was unreasonably refused or withheld; 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.’

[emphasis added]

The onus of proof is dealt with in s 298V as follows:

‘298V If:

(a)               in an application under this Division relating to a person’s or an industrial association’s conduct, it is alleged that the conduct was, or is being, carried out for a particular reason or with a particular intent; and

(b)               for the person or industrial association to carry out the conduct for that reason or with that intent would constitute a contravention of this Part;

it is presumed, in proceedings under this Division arising from the application, that the conduct was, or is being, carried out for that reason or with that intent, unless the person or industrial association proves otherwise.’

19                  Only the conduct of an employer attracts the prohibition in s 298K(1) of the Act. The conduct about which the applicant complains occurred in September 2001 when, so it is alleged, Belandra refused to employ the Belandra employees, and/or altered their position to their prejudice. The first question, then, is whether Belandra was an employer at that time.

23                  The applicant argued that Belandra remained an actual employer until after February 2002 because Belandra continued to employ a number of employees who were receiving WorkCover payments at the time of the fire. Their employment was not terminated immediately after the fire.

24                  This argument involves both a factual and a legal issue. In relation to the factual issue, Mr Cabral stated, in his affidavit sworn on 4 September 2002, that the WorkCover employees were not terminated in June 2001 when the rest of the Belandra employees were terminated. In cross-examination he sought to resile from that position. He said that the WorkCover employees were terminated, but Belandra kept paying weekly payments after meeting with WorkCover officers. He said that although the employees were terminated, Belandra still “managed their files”. He agreed that the WorkCover recipients were not paid their severance entitlements until their WorkCover payments ended. In some cases that was after February 2002. Under cl 2.8.3 of the 2000 Agreement severance payments are payable on termination. I infer that Belandra intended to comply with the terms of the 2000 Agreement. On the basis of this evidence, I find that, on the balance of probabilities, Belandra continued to be the employer of a number of persons in receipt of WorkCover payments from the time of the fire until after February 2002.

25                  In relation to the legal issue, Mr Borenstein SC, who appeared with Mr Armstrong for the applicant, sought to rely on the status of Belandra as an employer of the WorkCover employees as the basis of the allegation of a contravention of s 298K(1) by Belandra in relation to the non-WorkCover employees. The continued employment of the WorkCover employees, it was contended, qualified Belandra as an actual employer for the purposes of s 298K(1).

26                  In response, the respondents submitted that “the operation of s 298K(1) must relate to the position of employer as employer vis-a-vis the people who are said to be the employees affected by the decision … the position of the WorkCover employees does not make Belandra an actual employer in respect of those former employees as at September 2001”

27                  The submission of the respondents might be correct if the case was brought under s 298K(1)(a) and it was alleged that an employer had dismissed an employee for a prohibited reason, or under s 298K(1)(b) and it was alleged that an employer had injured an employee in his or her employment. But, insofar as the case is brought under s 298K(1)(d), the argument cannot be sustained. This subsection is concerned with the refusal by an employer to employ another person. The other person cannot be an existing employee, and there is no requirement that the other person was previously an employee of the employer. Thus, where s 298K(1)(d) is relied upon, the applicant must establish that the respondent is an employer, but the contravening conduct is not necessarily conduct directed to an existing employee. It is conduct directed to persons who are refused employment. Consequently, the fact that Belandra continued to employ the WorkCover employees made it an actual employer for the purposes for s 298K(1)(d), even though the contravention alleged was not conduct directed against those employees.

28                  Section 4(1) of the Act, relevantly, provides that;

“In this Act, unless the contrary intention appears:

‘employer’ includes:

(a)               a person who is usually an employer;”

29                  The applicant argued that, even if Belandra was not an actual employer when the alleged contravening conduct occurred, then Belandra was usually an employer at that time within the meaning of s 4(1). The respondents answered with two contentions – first, that the extended definition did not apply to s 298K, and second, and alternatively, that Belandra was not, on the facts, usually an employer at the time of the alleged contravening conduct.

30                  As to the first contention, Mr Parry SC, who appeared with Mr Mueller, for the first, fourth and fifth respondents, relied on the speech of the Attorney-General, made on the second reading of the Commonwealth Conciliation and Arbitration Bill in 1910 which introduced the extended definition of employee, as follows:

‘Clause 2 amends the definition of “employé” to include “any person whose usual occupation is that of employé in any industry.” That is to meet the case of unemployed persons in an industry, since it is conceivable that there may be a dispute in an industry where in fact there are no contractual relations existing at the time.’ [Australia, House of Representatives, Debates, vol 55, 1910, p 744]

31                  Mr Parry also relied on an exchange in Senate discussions in Committee, following the second reading of the Conciliation and Arbitration Bill 1952 (Cth), which introduced the extended definition of “employer” as follows:

‘Senator SHEEHAN (Victoria) [1.2 a.m.]:-Will the Minister inform me of the reason for the alteration of the interpretation of the word “employer”. The definition of employer in the principal act is –

“Employer” means any employer in any industry and includes a club.

The words proposed to be added to that definition after the word “includes” are –

Any person who is usually an employer in an industry and also includes

Will the Minister explain the significance of the addition of those words?

Senator O’SULLIVAN (Queensland- Minister for Trade and Customs) [1.3 a.m.]. – It is proposed to add those words to the definition of employer to bring it into line with the definition of employee. The Registrar of the Commonwealth Court of Conciliation and Arbitration has held that an association that makes application for registration as an association of employers under section 70A may consist only of persons who are actually employing labour at the time of the application. The amendment was suggested by employers.

Senator SHEEHAN – The addition of the proposed words will mean that a person who is not in business at the time of the application may be deemed to be an employer?

Senator O’SULLIVAN. – That is so.’

[Australia, Senate, Debates, vol 217, 1952, p 1511]

32                  From these sources, Mr Parry argued that Parliament intended the extended definition of employer to apply only to those provisions of the Act which deal with industrial disputes and the regulation of organisations. So viewed, Parliament has expressed a ‘contrary intention’ for the purposes of s 4(1) of the Act.

33                  On the basis that the Committee proceedings may be taken into account (see s 15AB Acts Interpretation Act 1901 (Cth) but note the cautionary comments of Dawson J in Mills v Meeking and Anor (1990) 169 CLR 214, at 236-7), this legislative history does not demonstrate that the definition of employer was to be limited in the way suggested.

34                  Whilst the Attorney-General explained to Parliament in 1910 that the extended definition of employee would impact on the provisions concerning industrial disputes, he did not suggest that the application of the extended definition was limited to those provisions. The definition was placed in the general interpretation section of the Act. Indeed, in 1952 the Minister accepted that the extended definition of employee applied to the provisions of the Act dealing with organisations. He said that the reason for extending the definition of employer was to ensure that it applied to those provisions and, thus, to ‘bring it into line with the definition of employee’. So, even though the Attorney-General in 1910 made no reference to the fact, the Minister in 1952 had the view that the extended definition of employee applied to other provisions of the Act such as those which regulated organisations.

35                  The more recent legislative history suggests that the extended definition of employee contained in s 4(1) was intended to apply to s 298K(1). Part XA of the Act, which contains s 298K(1), was inserted in 1996. In s 298B certain definitions are provided for the purposes of Part XA. Some terms defined in s 298B are also terms defined in s 4(1), however, they are given a different meaning where that is required for the purposes of Part XA. For instance, the terms ‘industrial action’ and ‘industrial dispute’ are defined differently in s 298B, from s 4(1). The fact that the word ‘employer’ has not been given a special meaning under s 298B is an indication that the general definition is meant to apply to Part XA. Another indication is that s 298A, which sets out the objects of Part XA, specifically incorporates the general objects of the Act set out in s 3. Section 3 refers to employers and employees. These references apply generally for the purposes of the entire Act. The extended definition certainly applies to these references. Where Parliament meant words in Part XA to have a different meaning from the meaning of the words elsewhere in the Act, Parliament expressly provided for different meanings. In the absence of express reference to a different meaning for the purpose of Part XA it should be concluded that Parliament meant the words to have the same meaning as elsewhere in the Act.

36                  Finally, in principle, there is good reason for the extended definition to apply. Section 298K(1) is found in Part XA which is concerned with ‘freedom of association’. The objects of the Part are set out in s 298A and include:

‘As well as the objects set out in section 3, this Part has these objects:

(a)               to ensure that employers, employees and independent contractors are free to join industrial associations of their choice or not to join industrial associations; and

(b)               to ensure that employers, employees and independent contractors are not discriminated against or victimised because they are, or are not, members or officers of industrial associations.’

37                  The provisions, thus, seek to ensure that certain basic freedoms are available to all participants in the workplace. The objects of the part are advanced if the scope of the part is interpreted as reaching beyond persons who are presently employers to persons who are usually employers.

38                  The operation of the extended definition in the context of s 298K(1), or its predecessor provisions, has been considered in several cases. Linehan v Northwest Exports Pty Ltd (1981) 57 FLR 49 (Linehan) involved employment in the meat industry. In order to allow for seasonal shutdowns and also for the variable supply of stock during the season, employment in the meat industry exhibited some special characteristics. A category of employment called regular daily hire developed. Such employment lasted for a day at a time. At the end of each day of employment, the employment relationship terminated but the engagement as a regular daily hire worker continued until terminated by notice. Whilst the engagement lasted, employees were obliged to attend each day unless notified that they were not required to attend. A typical example of a clause in an award providing for regular daily hire can be seen in Linehan at 58. In Linehan, the employer, some time after it had terminated the employment of a regular daily hire employee, terminated the engagement of the employee for a prohibited reason. The question arose whether the employer had altered the position of the employee to the prejudice of the employee contrary to the equivalent of s 298K(1)(c) (which, at that time, made contravention a criminal offence). As the employment had been terminated before the engagement was terminated, and hence the former employee was no longer an existing employee, contravention of the section could only be established upon application of the extended definition of employee. Ellicott J held in Linehan that there had been a contravention in those circumstances, but there was no discussion about the extended definition. The case demonstrates one instance in which conduct contrary to the freedom of association objects of the Act would have been without remedy if the extended definition had not been available.

39                  Then, in obiter dicta in Re: Australian Meat Industry Employees’ Union And: R J Gilbertson (Queensland) Pty Ltd (unreported, Gray J, 8 December 1988) Gray J addressed the issue, at par 25, as follows:

‘With respect to the third group of charges, there was argument about the meaning of the phrase “alter his position to his prejudice” in s.5(1) of the Act. Counsel for the defendant referred to judgments in which examples were given of acts which might constitute alteration of an employee's position to his or her prejudice. … Each refers to an act done to a person within the confines of a subsisting employment relationship, and by the other party to that relationship. Despite these examples, I am not persuaded that the phrase “alter his position to his prejudice” is limited to such situations. Having regard to the extended definitions of “employee” and “employer” in s.4(1) of the Act, and to the apparently deliberate choice of a phrase which does not contain a reference to “employment” (as does the phrase “injure him in his employment”), I am of the view that it would be possible for a person usually an employer in an industry to commit an offence by altering the position of a person usually an employee in the same industry to the prejudice of the latter person, by reason of one or more of the proscribed circumstances found in s.5(1) of the Act. I note that, in Linehan v. Northwest Exports Pty. Ltd. (1981) 57 FLR 49, at pp 61-62, Ellicott J. found that depriving a person of the status of regular daily employee, under an award provision similar to that found in s.4 of the Award, involved an alteration of that person’s position to his prejudice. As I have already pointed out, Ellicott J. found that the person concerned had not been dismissed, because his employment had terminated at the end of the working day concerned. Deprivation of the status of regular daily employee may be an example of altering the position of a person with whom there is no longer any employment relationship subsisting. Another example might be in circumstances where an employer first dismisses an employee, e.g. by reason of membership of an organization, and afterwards places that person’s name on a blacklist, thereby rendering it more difficult for him or her to gain employment elsewhere in the same industry. If the person’s usual occupation is that of an employee in the industry concerned, it is easy to see that his or her position has been altered to his or her prejudice. This does not mean that any employer in that industry, refusing to engage that person, would commit an offence, even if the refusal resulted from a proscribed circumstance. A refusal to employ would not in itself alter the position of the person whose usual occupation was that of an employee in a particular industry. Such a person would remain in the position of being unemployed. The employer causing the name to be blacklisted, however, would commit an offence; the act of that employer would change the position of the other person, by making it more difficult for him or her to gain employment.’ [emphasis added]

48                  The respondents then argued that, even if Belandra was an employer under the Act, Belandra did not refuse to employ the Belandra employees within the meaning of s 298K(1)(d). They submitted that there can be no such refusal unless a vacancy exists in the workforce which can be filled by the engagement of the person in question. For this proposition, the respondents relied on three cases, namely, Fraser v Fletcher Construction Australia Ltd (1996) 70 IR 117 (Fletcher); Maritime Union of Australia v Burnie Port Corporation Pty Ltd (2000) 101 IR 435 (Burnie); and Construction, Forestry, Mining and Energy Union v BHP Steel (AIS) Pty Ltd [2000] FCA 1008 (CFMEU v BHP Steel). They contended that there was no vacancy available to be filled in September 2001 because Belandra had decided not to employ anyone thereafter. Belandra had not refused to employ the former workforce. There were just no vacancies for Belandra to fill.

49                  There are at least two available constructions of the expression “refuse to employ” as used in s 298K(1)(d) in relation to vacancies. On one approach, it can be said that there is no refusal to do something if that result cannot be achieved. A person cannot refuse to do that which cannot be done. If there is no vacancy, then there can be no refusal to employ. The respondents argued for this approach (the former construction). Alternatively, it can be said that even if an outcome is not available, the decision not to provide it is nonetheless a refusal to provide the outcome. That is, whether the outcome can be achieved should be considered separately from whether there was a decision not to achieve the outcome. Thus, there can still be a refusal to employ even if there is found to be no available vacancy (the latter construction).

50                  The statutory context in which s 298K(1)(d) appears suggests that the latter construction was intended. Division 3 of Part XA of the Act prohibits certain conduct undertaken for specified reasons. The conduct and the reasons are dealt with separately. The conduct is defined in s 298K and the prohibited reasons are specified in s 298L. The dichotomy is carried through into s 298V, which provides that where conduct is alleged to have been undertaken for a prohibited reason, the respondent bears the onus of showing that the conduct was not undertaken for that reason. In advancing the objects of freedom of association, Parliament has taken a view about the proper balance between the parties in relation to the discharge of the obligation of proof. Conduct is treated differently from the reasons for it. A reverse onus on the issue of the reason for conduct makes good sense because the reason for conduct is a matter peculiarly within the knowledge of the respondent.

51                  The same approach underlies the latter construction of the expression “refusal to employ”. The applicant is required to prove the conduct, namely, that the applicant was refused employment by the respondent. The onus then shifts to the respondent to disprove the prohibited reason alleged. At this point, the absence of a vacancy may provide an innocent explanation for the conduct. Depending on the circumstances giving rise to the absence of a vacancy, the lack of an available position may show that the reason for the refusal was not a prohibited reason.

52                  Further, the difficulty with the former construction is that it allows an employer to circumvent the operation of s 298K(1)(d) by its own action. If an employer only refuses to employ where a vacancy exists, then, in order to avoid engaging a particular person for a prohibited reason, the employer can simply contrive to have no vacancy. Consider the situation where an employer has two vacancies. He has three applicants, A, B, and C. A and B are not union members and C is a union member. The employer engages A and B and rejects C. The reason for rejecting C is that he is a union member. Were it not for this fact, the employer would have preferred C to A and B. If C challenged this decision under s 298K(1)(d) it would be open to the employer to argue, if the former construction of the subsection applied, that there was no refusal to employ C because there was no longer a vacancy. However, it was the contravening act itself which caused there to be no vacancy. One would imagine that such a situation was precisely what the subsection was intended to guard against. The former construction thus allows an employer to escape liability by arranging for there to be no vacancies available to an applicant whom the employer wishes to reject for a prohibited reason.

53                  In Burnie, Ryan J dealt with a case similar to the example just discussed. The Burnie Port Corporation had two vacancies for port operatives/cold store operators. The Burnie Port Corporation decided that the employment of the person appointed to fill each of the vacancies would be governed by an AWA. Six applicants applied for the jobs. One applicant, Mr Rolls, said at the interview that he was not happy for his employment to be governed by an AWA. He was not selected. Ryan J found that the reason that Burnie Port Corporation did not select Mr Rolls was that he was entitled to the benefit of an industrial instrument (s 298L(1)(h)), namely, an Enterprise Bargaining Agreement which would have otherwise applied to his employment. Ryan J considered whether there was a refusal to employ Mr Rolls within the meaning of s 298K(1)(d). He said at par 41:

‘The Union contends that Mr Rolls, because of his expressed objection to entering into an AWA, was in a class of persons who would never be employed by the applicant, and that this constituted a refusal to employ under s 298K(1)(d). However, as I put to Counsel during the hearing, that submission is more accurately directed towards the reason for any refusal to employ that may have occurred.’ [emphasis added]

54                  His Honour then rejected the Burnie Port Corporation’s argument which sought to characterise its decision as a decision to prefer two other candidates over Mr Rolls, rather than a decision to refuse to employ. His Honour continued at par 44:

‘In the present case there were two vacancies for which Mr Rolls had applied and was under active consideration. The refusal to employ him occurred when the Corporation decided to employ two other applicants in preference to Mr Rolls. To hold otherwise would make it impossible to predicate of Mr Rolls, or any other person passed over for selection, a “refusal to employ”, or an “agreement to employ”. Whether the refusal occurred because there was a class of persons whom the Corporation would never employ (because they refused to enter into an AWA) or because two other candidates were preferred on merit, is relevant to the reasons for that refusal.’ [emphasis added]

55                  Ryan J thus held that an employer refuses to employ where it has a position under active consideration at the time of rejecting the applicant. He found this to be the fact in Burnie. His reasoning, expressed in the emphasised passage set out in par 53 above, is also a basis for regarding the question of the existence of a vacancy as part of the consideration of the reason for the refusal to employ. His Honour also adverted to this approach in the emphasised passage set out in par 54 above. There, his Honour considered whether Mr Rolls was in a class of persons who would never be employed by the Burnie Port Corporation. Put another way, the question was whether Mr Rolls was a person for whom there would never be a vacancy. This matter, his Honour said, was more accurately directed towards the reason for the refusal. Although an appeal from his Honour’s decision was allowed (Burnie Port Corporation Pty Ltd v Maritime Union of Australia 104 FCR 440; [2000] FCA 1768) the Full Court said, as to the question presently under consideration, at par 14:

‘The Corporation relied on three main grounds. The first was that it had not refused to employ Mr Rolls. Rather, so it said, Mr Rolls declined to accept the terms and conditions of employment offered to him. The primary judge found that the Corporation had refused to employ Mr Rolls when it decided to employ the two other applicants in preference to him. That finding was open on the evidence. We are not persuaded that his Honour erred in any respect in arriving at it.’

56                  The source of the respondents’ submission in the present case that the former construction should apply was the decision of Moore J in Fletcher. In that case, two charges were brought under s 334(2) of the Industrial Relations Act 1988 (Cth), the predecessor to s 298L, which made it an offence to refuse to employ a person for specified reasons, including the reason that the person had been a union delegate or member, or had given evidence in a proceeding under the Act. The provision was in similar terms to s 298K(1)(d) read with s 298L(1). However, a difference is that, whilst the present provisions provide for a civil sanction, the previous provisions provided for a criminal sanction. Two employees of Fletcher Constructions Australia Limited (Fletcher Constructions), Gallagher and Arnold, were employed on a gas pipeline project. They were elected delegates of the Construction, Forestry, Mining, and Energy Union (CFMEU). They took action and gave evidence in the Australian Industrial Relations Commission in support of a claim for a completion bonus on the gas pipeline project. The employment of Gallagher and Arnold came to an end when the project on which they were employed was completed late in 1995. In 1996, Fletcher Constructions was to commence a new gas pipeline project, and it completed hiring for that project by February 1996. Some, but not all, of the employees from the previous project were employed on the new project. Gallagher and Arnold applied for jobs on the new project in April 1996 but were not employed. The information alleged that, on 30 April 1996, Fletcher Constructions refused to employ Gallagher and Arnold for proscribed reasons. His Honour said, at  118:

‘It is conceded by the prosecutors that there is no evidence of positions being available in late April 1996 in the workforce involved in the new project.’

57                  In these circumstances, the defendant put, and his Honour upheld, a submission that the defendant had no case to answer.

58                  His Honour said at 119 that the expression “refuse to employ” deals with:

‘actual employment where there is a refusal to employ a person in circumstances where, apart from the refusal, employment might or would arise. I refer to situations where employment might arise to allow for circumstances where a vacant position exists and a refusal to employ arises before the employer has ascertained whether the person applying for the job or position, who is victimised for a prescribed reason, is qualified or equipped to do the job.’ [emphasis added]

59                  His Honour concluded at 121:

‘On one view, the opposite of “refuse to employ” is “agree to employ”. “To employ” may mean, in context, to enter a contract of employment. It is entirely consistent with the ordinary meaning of “refuse”, and for that matter “agree”, to treat “refuse to employ” as describing a situation where the employer does not do what otherwise would be done, namely, agree to employ by entering a contract of employment.

Having regard to the context in which the expression “refuse to employ” appears in s 334(2), I have concluded it relates to a refusal by an employer to employ a person for a proscribed reason when employment would or might otherwise occur. That is, it concerns the refusal of an employer to employ a person by refusing to enter a contract of employment. That arises, in my opinion, only if a position or vacancy exists to which the employment would have related at the time of refusal. Accordingly, in the absence of evidence that a position or vacancy existed in late April 1996, the prosector has failed to establish, even on a prima facie basis, a refusal to employ. In my opinion the defendant does not have a case to answer.’ [emphasis added]

60                  It must be recalled that his Honour was dealing with a case in which it was conceded that there were no vacant positions available to be filled at the time of the alleged offence. In those circumstances, his Honour held that there was no refusal to employ because employment could not have occurred, even in the absence of the conduct complained about. The primary construction adopted by his Honour was that a refusal to employ only occurs when employment would or might otherwise occur. His Honour applied that construction to the facts of the case before him. Those facts were that there was no vacancy. It followed, on those facts, that employment would not otherwise have occurred. But the decision does not mean that where an employer deliberately refuses to create vacancies as part of the conduct alleged, the fact of the absence of vacancies can be used to argue that there is no refusal to employ. This was not a situation directly addressed by his Honour. His Honour’s approach asks the question whether the lack of vacancy would, or might have, existed were it not for the proscribed conduct. In the case before him, the answer was no because the workforce had been assembled months before the alleged refusal. The decision, therefore, does not assist the respondents in the circumstances of this case.

61                  His Honour’s reasoning, however, does not support the approach to the construction of the expression “refuse to employ” that I prefer. On that latter construction, the fact that Gallagher and Arnold were not given employment, even though there was none otherwise available, would have amounted to a refusal to employ. The no case submission would have failed. The prohibited intent would have been presumed. But, on the facts, the defendant probably could have shown that the reason for the refusal was that no jobs were available. His Honour did not consider this alternative approach. He explained that he had limited time overnight to consider the question, and would have preferred more time. Further, he adverted to the fact that the provision under consideration created a criminal offence. Those factors may have had a bearing on the approach adopted. His Honour, however, did consider the operation of the reverse onus provision in this context. He said at 118-9:

‘Section 334(6) renders it unnecessary for a prosecutor to prove, relevantly, the reason why a defendant refused to employ. However the reference to “reason” in the opening words of s 334(6), must be read in context. In the concluding words of s 334(6) there is a further reference to “reason” as part of the composite expression, “reason specified in the charge”. That is plainly a reference to the matters referred to in the various paragraphs in subs (1), (2), (3), (4) and (5) of s 334 which, in the main, relate to the protected status or characteristic of the person who is said to have been victimised in a proscribed way.

In my opinion, the word “reason” when first appearing in s 334(6), is a reference to the matters in those paragraphs. Thus s 334(6) relieves a prosecutor of the obligation of proving the existence of a reason contained in the relevant paragraph relied upon by the prosecutor in the charge, but otherwise does not affect the obligation to prove other aspects of the offence.’

62                  Moore J apparently regarded the existence or otherwise of a vacancy as a fact to be proved by the applicant before the onus shifted to the respondent.

63                  Again, in my view, once the applicant has shown that the respondent refused to employ the applicant, irrespective of whether a vacancy exists or not, the applicant has discharged the onus of proof which rests on the applicant.

64                  In CFMEU v BHP Steel, the CFMEU alleged that BHP Steel (AIS) Pty Ltd (BHP) had, contrary to s 298K(1)(d), refused to employ Mr Gaskill because he was entitled to the benefit of an industrial instrument. Mr Gaskill worked at the Tower Colliery as an electrical fitter/mechanic. His employment was governed by an award which provided for the payment of accumulated sick leave on retrenchment and for redundancy pay. Some retrenchments at the Colliery were anticipated. BHP introduced a ‘VR Swap’ scheme (the scheme). BHP also operated the Port Kembla steelworks. There were employees who wished to leave the steelworks, but BHP wished to retain their positions. BHP allowed a number of steelworks employees to swap positions with an equivalent number of colliery employees. The steelworks employees would then be entitled to redundancy payments and the colliery employees would avoid retrenchment. It was a term of the scheme that any colliery worker transferring to the steelworks would have to repay any accumulated sick leave or redundancy payment received from the colliery. Mr Gaskill was a junior electrician and anticipated he would be retrenched. So he applied for a job in the steelworks under the scheme. Shortly after he made that application he was retrenched and paid his accumulated sick leave and redundancy payment. Mr Gaskill was then offered a position at the steelworks under the scheme. He, however, insisted on retaining the accumulated sick leave and redundancy payments. As a result, BHP withdrew the offer of employment at the steelworks under the scheme. It was alleged that BHP had refused to employ Mr Gaskill because he was entitled to the benefits of the award. Wilcox J said at par 50 and 51:

‘50 A refusal to employ somebody involves discrimination or victimisation only if there was, at the relevant time, a vacancy or prospective vacancy. For that reason, I agree with, and apply to the current legislation, Moore J’s observation that the reference to refusing to employ a person concerns “actual employment where there is a refusal to employ a person in circumstances where, apart from the refusal, employment might or would arise”.

51 There is no doubt that BHP Steel refused to employ Mr Gaskill at the steelworks except on the basis that he repaid benefits he had received under the coal mining award. If he had been an applicant for a vacancy at the steelworks, I would have agreed such a refusal offended s 298K. However, there never was a vacancy available to Mr Gaskill; there was only an opportunity to exchange positions with a similarly qualified employee, at the steelworks, who wished to take voluntary redundancy. Unless and until an exchange was arranged, no position was available to Mr Gaskill. If arrangements had been made before his retrenchment notice took effect, there would have been no problem. But they were not made before that date. Implementation of the proposal therefore depended on Mr Gaskill agreeing, in effect, to revert to the pre-termination position by refunding his entitlements.’ [emphasis added]

65                  In this passage Wilcox J reasoned as follows. He said that a refusal to employ somebody involves victimisation only if there is a vacancy or prospective vacancy. In this case, he continued, “there is no doubt that BHP Steel refused to employ Mr Gaskill …”. But there was no victimisation because there was no vacancy at the time. His Honour accepted that there was a refusal to employ. His reference to victimisation was a reference to the reason for the refusal. He held that the reason for the refusal was the absence of a vacancy, and not the proscribed reason. Thus, the reasoning of Wilcox J does not support the respondents’ contention that there is a broad principle that a refusal to employ cannot occur if there is no vacancy to fill. Rather, it supports the approach I prefer, that the lack of a vacancy is a matter to be raised by the respondent in rebuttal of the presumption raised by s 298V.

66                  In the result, the cases relied upon by the respondents do not support the proposition for which they contended, namely, that there can be no refusal to employ a person if there is no vacancy at the time of the refusal.

67                  The decided cases, applied to the present circumstances, lead to the conclusion that Belandra did refuse to employ the Belandra employees. Although Fletcher did not deal with an analogous factual situation, it stands for the view that there is a refusal to employ where, apart from the refusal, employment would have arisen. That was the position in the present case. Immediately prior to the decision not to reemploy the Belandra employees, Belandra intended to reemploy the Belandra employees. In Burnie and CFMEU v BHP Steel the latter construction of s 298K(1)(d) was adopted. If applied in the present case that construction would also result in the conclusion that there was a refusal to employ. In this case there was a refusal to employ the Belandra employees when Belandra said, in September 2001, that it would not offer reemployment to the Belandra employees. The question whether there were any vacancies to be filled by the Belandra employees, then, is a matter which the respondent can raise in relation to the existence of a proscribed reason for the refusal, with a view to rebutting the presumption that the refusal was for a proscribed reason. However, if it is shown that Belandra contrived to have no vacancies through its decision not to employ, this argument might not succeed.

89                  The respondents then argued that the causal link required by s 298K(1) between the conduct, namely the refusal to employ or the prejudicial alteration, on the one hand, and the reason, namely the entitlement to the benefit of the agreement, on the other hand, was lacking. The written submissions of the first, fourth and fifth respondents stated, at par 106:

‘… the circumstance that it is the application of an industrial instrument in a workplace that is the cause of the situation that an employer wants to address does not make the application of the industrial instrument to the employees concerned the reason for the action taken by the employer to address that situation.’

90                  A distinction between the cause of the situation and the reason for the action was explained by Merkel J and Finkelstein J in Greater Dandenong City Council v Australian Municipal, Administrative, Clerical and Services Union (2001) 112 FCR 232; [2001] FCA 349 (Greater Dandenong). The council employed people to provide home and community care services. Legislation was introduced which required a proportion of council expenditure to be the subject of competitive tendering. The council decided to put out to competitive tender the home and community care services. Two bids were received. One was an in-house bid, and the other was from an organisation called Silver Circle. The Silver Circle bid was for $6.6 million and the in-house bid was for $7.7 million. The difference in price was largely accounted for by the fact that the award covering Silver Circle employees provided less pay for the same work than the award covering council employees. The council was aware that if the Silver Circle offer was accepted, the council employees would be made redundant, and they would be engaged, at least initially, by Silver Circle. They would do the same work as before, but would be paid less to do it. The council accepted the Silver Circle tender. The trial judge, and Wilcox J on appeal, held that by accepting the Silver Circle tender, the council altered the position of the employees to their prejudice because they were entitled to the benefit of the award covering council employees. This conduct amounted to a breach of s 298K(1)(c) and s 298L(1)(h). Merkel J did not accept that the employees had established that the higher award entitlements was “an operative reason” for the council’s conduct. He said, at par 164:

‘… the cases demonstrate that s 298K is not concerned with the cause of the prejudicial conduct. Rather, it is concerned with the employer’s reason or reasons for engaging in that conduct. Thus, there can be a significant difference between the employer’s subjective reason for engaging in prejudicial conduct and the objective circumstances that led to the employer engaging in the conduct.’

91                  He continued, at par 167:

‘In my view the proper inferences to be drawn from the primary facts found by the primary judge are that an operative reason for the council’s resolution to accept Silver Circle’s tender was its lower price and that a circumstance that led to it accepting the lower price was the higher Award and Agreement entitlements of the HACC [council] employees. While the higher entitlements may be causally linked to the council’s acceptance of the Silver Circle tender, the evidence does not support the primary judge’s conclusion that they were an operative reason for the council’s acceptance of the tender. No councillor or council document stated that the entitlements were a reason for the council’s acceptance. The inference drawn by the primary judge to the contrary was based on an approach that, erroneously, failed to distinguish between the operative reason for the council acting and the circumstances that led to the price of the in-house bid being higher than the price of the Silver Circle bid. The fact that the councillors were aware of, or considered, those circumstances does not make them a reason for their decision. This is not a case of a council not being prepared to pay Award or Agreement entitlements or seeking to discriminate against its employees by reason of those entitlements. Rather, it is a case of a council, that is required by law to engage in a competitive tendering process, accepting the most competitive tender which met the objective criteria it specified.’ [emphasis added]

92                  Merkel J, however, dismissed the appeal because the council had failed to discharge the onus of showing that the acceptance of the Silver Circle tender was not because of the employees’ entitlement to the benefit of an industrial instrument.

93                  Finkelstein J would have allowed the appeal, and also made a distinction between the cause of conduct and the reason for conduct. He said at par 199:

‘According to these cases, to decide whether an employee has been unlawfully dismissed, it is necessary to ascertain the true motive for, or purpose of, the dismissal. If there is some legitimate reason for the dismissal, such as the desire to avoid bankruptcy or the need to maintain a profitable operation, the dismissal will be lawful. It matters not that the cause of the impending bankruptcy or the unprofitable trading is the high rate of wages payable under an award or certified agreement. That is to say, although the benefits produced by an award or certified agreement have caused the problem which the employer seeks to address, that does not necessarily make those benefits the “reason” or motive for his act.’ [emphasis added]

94                  He also said, at par 204:

‘Thus, there has been an unbroken line of State and federal authority in favour of the proposition that, for the purpose of deciding whether there has been an unlawful dismissal for the reason that an employee is entitled to the benefit of an award or certified agreement, it is necessary to draw a distinction between the “reason” or motive behind the dismissal and what produced that motive.’ [emphasis added]

95                  And finally, at par 216, his Honour said:

‘It seems to me that the trial judge failed to distinguish between the immediate reason for the relevant act, be it the dismissals or the acceptance of the Silver Circle award, and the proximate reason for that act. I can make the point by reference to two sentences in the reasons. The trial judge said: ‘The major and decisive factor in the Silver Circle bid’s acceptance was its price. The major and decisive factor in the difference in price was that, as everyone conceives it, Silver Circle would remunerate the workers doing HACC work under the Silver Circle award and not the council’s industrial instruments.’ The finding that price was a “major and decisive factor” is plainly correct. To describe the other “major and decisive factor” (that the price difference was the result of different award rates) as a motive for the decision is where the error is to be found. This “major and decisive factor” is not what motivated the decision but merely explains the difference in price.’

[emphasis added]

96                  In Maritime Union of Australia v CSL Australia Pty Ltd (2002) 113 IR 326; [2002] FCA 513, Branson J said, at par 54:

‘It is difficult, if not impossible, to identify the ratio decidendi of Greater Dandenong. However, two members of the Full Court (Merkel and Finkelstein JJ) concluded that the learned primary judge had erroneously failed to distinguish between the operative (or immediate) reason of the Council’s conduct and the cause (or proximate reason) for the Council’s conduct. While, as it seems to me, this distinction may in many cases be easier to articulate than to draw, especially in respect of a statutory provision that recognises the possibility of a number of reasons having a causal connection with conduct, I consider that I should be guided by the approach taken by Merkel and Finkelstein JJ who constituted a majority of the Full Court in Greater Dandenong on this issue. I am fortified in my decision to adopt this approach by the fact that the approach appears to me to be consistent with that adopted by R D Nicholson J in MUA v Geraldton.’

97                  The passage from Geraldton, to which Branson J referred, so far as presently relevant stated:

‘I agree with the submission for the GPA [Geraldton Port Authority] that the words “for” in s 298K(1) and “because” in s 298L(1) require a causal connection between the act of the employer which injures the employee in his employment or alters his position to his prejudice and the status of the employee as a union member, in the case of s 298L(1)(a), or as a person entitled to the benefit of the Award or Agreement, in the case of s 298L(1)(h). The inquiry is directed to the reasons of the employer.

I also agree [sic] the fact that there is some connection between the employer’s act and the employee’s union membership or entitlement to the benefits of an award does not mean that the employer did the act because the employee was a union member or entitled to the benefit of the award. Whether an employer was actuated by a prohibited reason or reasons which included a prohibited reason is a question of fact. It will often involve questions of judgment and the characterisation of the employer’s reasons: cf Wood v City of Melbourne (1979) 26 ALR 430. For example, if an employer made a decision to make his operation more efficient or to facilitate the provision of services to the service users at a lower cost (and for no other reason) that action is not open to the inference of having been taken for reasons which include that the employees are members of a union or have the benefit of an award.’

98                  The respondents, rightly, accepted that the existence of the necessary causal connection will involve questions of judgment and characterisation. By referring to a distinction between a reason for an action and a cause of the situation which an employer seeks to address, Merkel and Finkelstein JJ in Greater Dandenong did not establish any principle to be applied to the construction of the section. They merely engaged in a process of characterisation of the particular facts before them. In the end, the question remains whether the conduct was carried out “because” of the specified conduct. It must be remembered that s 298L(1) is an interpretation section. The section defines what constitutes a prohibited reason for the purposes of s 298K(1). Thus, the process of characterisation must focus on the “because”. No verbal formula, whether by reference to a distinction between reason and cause, or between an immediate cause and a proximate cause, can take the place of the statutory requirement that the conduct be carried out “because” of the specified reason.

99                  This approach is supported by Lewis Construction Co Pty Ltd v Martin & Ors (1986)70 ALR 135; [1986] 17 IR 122, which was relied upon by the applicant. Mr Martin was dismissed by his employer, Lewis Construction Co Pty Ltd (Lewis). The trial judge found that he had been dismissed because he was a member of the Builders Labourers’ Federation. Gray J (with whom Woodward and Jenkinson JJ agreed) said at 137:

‘The argument on behalf of Lewis was that the learned trial judge had found that the relevant officers of Lewis believed that dismissal of all members of the BLF employed by Lewis was the only course open to it as a means of countering a campaign or campaigns then being conducted by the BLF. Because of this finding, the fact that Mr Martin was a member of the BLF did not amount to a reason why he was dismissed; membership of the BLF was no more than the criterion for selection of those who were being dismissed.’

100               And, at 139, he said:

‘In failing to lead any evidence to support the proposition that Mr Martin’s membership of the BLF was not a substantial and operative factor in the decision to dismiss him from his employment, Lewis failed to exclude that reason as such a substantial and operative factor, and therefore failed to discharge the onus of proof imposed upon it by s 5(4) of the Act. The attempt to characterise Mr Martin’s membership of the BLF as a factor in a reason, rather than a reason in itself, must also fail. The Act and the authorities do not distinguish between a “reason” and a “factor”; indeed, in Bowling, these terms are used interchangeably. The attempt to decide whether a particular circumstance was a factor in a reason, or a reason itself, tends to distract from the essential question, which is whether that circumstance was a substantial and operative factor or reason in the decision.’

[emphasis added]

101               This legal analysis of the issues of causation will be applied to the finding of fact concerning the reasons for Belandra’s action, which are made later in these reasons.

102               There was disagreement between the parties as to the scope of s 298L(1)(a).

103               The respondents contended that the reference to union membership was a reference limited to the fact of belonging to a union. On this approach, a case does not come within s 298L(1)(a) if a reason for the employer’s conduct is, for instance, that the employee has engaged in activities as a union member. The respondents relied upon a passage from the judgment of Kenny J in Australian Workers’ Union & Ors v BHP Iron-Ore Pty Ltd (2000) 106 FCR 482; [2001] FCA 3 (AWU v BHP Iron-Ore), at par 66 as follows:

‘In written submissions, the applicant referred to remarks of Wilcox and Cooper JJ in Davids Distribution at 500-501; 583, and stated that their:

“… argument that membership of an industrial association was one of the Respondent’s prohibited reasons is based on a concept and understanding of membership as being broader than simply the possession of a membership ticket.”

I do not accept this submission. Section 298L(1)(a) refers to membership of and holding office in a union. I do not think it is intended to cover any broader notion than that. Section 298L(1) (which describes what is a prohibited reason for s 298K(1) purposes) consists of 14 detailed paragraphs and a number of subparagraphs designed to protect an employee’s freedom to join a union and to participate in union activities in a number of disparate situations. In Davids Distribution, their Honours were referring to the protection conferred by s 298L(1), considered as a whole. Their observations do not provide a basis for saying that par (a) of s 298L(1) is concerned with anything other than being, or proposing to become, a member (or an officer or delegate) of an industrial association. The concept of membership is recognised and dealt with in Pt IX, Div 9 of the WR Act. There is nothing in the terms of par (a) or elsewhere in the WR Act to justify the applicants’ submission that par (a) is concerned with a person’s activities as a member, officer or delegate of an industrial association. At least some of those activities are protected elsewhere in s 298L(1): see, for example, pars (f), (g), (i), (m) and (n).’ [emphasis added]

104               The applicant submitted in response that the concept of membership is broader than the mere holding of a union ticket. It relied upon a passage from a judgment of Gray J made at the interlocutory stage of the same proceedings, (Australian Workers’ Union and Others v BHP Iron Ore Pty Ltd) (2000) 96 IR 422; [2000] FCA 39, at pars 35 and 46, as follows:

‘35. …The concept of membership, for the purposes of this provision, is more than a mere formality. It includes the notion of the ability to have terms and conditions of employment regulated on a collective basis: see the judgment of Wilcox and Cooper JJ in Davids Distribution Pty Ltd v National Union of Workers (1999) 91 FCR 463 at 500; 91 IR 198 at 233 ….

…

46. In Davids Distribution Pty Ltd v National Union of Workers (at 500; 233), Wilcox and Cooper JJ said:

“Section 298K forbids an employer from dismissing an employee for a prohibited reason or for reasons that include a prohibited reason. The prohibited reasons are contained in s 298L. Each of the reasons relates to the exercise of the right of an employee or independent contractor to join, or refuse to join, an ‘industrial association’ (as defined) and, where the employee becomes a member of an industrial association, to take collective action by or through the industrial association in pursuit of their industrial interests. Section 298L(1)(l) is concerned to ensure that an employee who is dissatisfied with his or her industrial conditions is not discouraged from participation in concerted action engaged in by the industrial association of which the employee is a member and which is seeking better industrial conditions. The objective of s 298K is to ensure the threat of dismissal or discriminatory treatment cannot be used by an employer to destroy or frustrate an employee’s right to join an industrial association and to take an active role in that association to promote the industrial interests of both the employee and the association.

In the context of the Act, Pt XA does not stand alone. It is aimed at ensuring that employees may band together, if they wish, for collective bargaining of the type provided for in the Act to achieve the broader objectives of the Act as contained in s 3. In this regard the Act operates in the same way and to the same ends as similar legislation in the United States of America. … That which is protected by such legislation is more than the right to be a member. It is the right to participate in protected union activities, including the taking of collective industrial action against an employer to seek to obtain better industrial conditions. …”’

See also Stephen Phillip Gibbs v The Palmerston Town Council (unreported, Gray J, 21 December 1987, at p 99) (Palmerston).

105               In AWU v BHP Iron-Ore, the terms of employment of the employees in the employer’s Pilbara iron-ore mining and transport operations had been governed by collective agreements or awards negotiated by a number of unions. Most of the employees were members of one or other of the unions. Under Western Australian industrial legislation such collective agreements would be displaced by individual employment agreements. The employer offered individual employment agreements to the whole work-force. The agreements provided for higher wages and other incentives to those who signed. The unions brought proceedings alleging breaches of s 298K. They argued that the employer had injured employees and altered their position to their prejudice in breach of s 298K(1)(b) and (c) by making the offers of individual employment agreements. A reason for the conduct was alleged to fall within s 298L(1)(a). Her Honour described the applicant’s case, at par 63, thus:

‘The applicants’ case under s 298L(1)(a) must be that BHPIO diminished the collective bargaining power of a non-accepting employee, and made him or her ineligible for the accrued leave option, for reasons that included that the employee was a member of an industrial association.’

106               Kenny J held that the offer of individual employment agreements did not constitute injury or prejudicial alteration within the meaning of s 298K(1)(b) and (c) because the diminution in collective bargaining power resulted from the acceptance by some employees and the rejection by other employees of offers made indiscriminately to all employees. Thus, it was not necessary for her Honour to consider whether the conduct was for a prohibited reason. Her Honour’s reflections on that matter are obiter dicta. Nevertheless, those reflections are a useful starting point for a consideration of the issues in the present case.

107               In the passage which is extracted in par 102 of these reasons, Kenny J held that s 298L(1)(a) is not concerned with the activities of a person as a member of a union. Two reasons were given. One was that there was nothing in the section or elsewhere in the Act to suggest the contrary. The other was that some activities of union members were expressly protected in some of the following subsections of 298L(1).

108               The question which her Honour considered was whether conduct was carried out by the employer because an employee was “a member of an industrial association”, when that conduct was carried out because the person had engaged in activities as a union member. There is another question arising from the construction of s 298L(1)(a). That question is whether conduct was carried out because a person was a “member of an industrial association”, when the conduct was carried out because a union engaged in activities as an incident of the person being a member of the union.

109               This latter issue seems to have been the basis of the case put by the unions in AWU v BHP Iron-Ore. In par 65, immediately before the passage relied upon by the respondents in the present case, her Honour said:

‘The applicants’ real case, so far as BHPIO is concerned, is that the company offered WPAs [Workplace Agreements] on terms to all its employees as part of a stratagem to reduce union membership (at that time held by most of its workforce) in order to diminish the unions’ bargaining power.’ [emphasis added]

110               Her answer was:

‘This case is properly considered under s 298M.’

111               There is no discussion as to why such a case would not fall within s 298L(1)(a). Nonetheless, there may have been an implicit determination to that effect. Alternatively, the question may not have been considered. In either event, there is little assistance to be derived from the case on this aspect.

112               However, in the present case, it is necessary to determine the scope of s 298L(1)(a) as it applies to union members and the activities of unions on their behalf. There are four possible limits to the operation of s 298L(1)(a), namely that the conduct is engaged in because, a) the employee belongs to a union; b) the employee is involved in activities as a union member; c) the union is involved in activities on behalf of the individual employee; d) the union is involved in activities as an incident of an employee being a member. In the present case, the question is whether s 298L(1)(a) extends to the reason referred to in (d). An appropriate starting point for this inquiry is an examination of the statutory background and context of the provision.

113               The statutory background and context indicates that the protection against discrimination or victimisation on the basis of union membership is of the broadest kind considered above. It extends to protection against discrimination or victimisation directed to a person because of actions taken by a union as an incident of that person being a member of the union.

114               Section 9(1) of the original Commonwealth Conciliation and Arbitration Act 1904 (the original Act), provided:

‘9.(1) No employer shall dismiss any employee from his employment by reason merely of the fact that the employee is an officer or member of an organization or is entitled to the benefit of an industrial agreement or award.’

115               The terms of the original section bear a close resemblance to the terms of s 298L(1)(a). An understanding of the scope of the original provision therefore sheds some light on the scope of the current provision.

116               At Federation, the main concern in labour relations was to control labour strikes in order to prevent a recurrence of the widespread strikes which had occurred in the 1890s. Section 51(xxxv) of the Australian Constitution (the Constitution) did not give the Federal Parliament a general power to regulate employment relations. Rather, it gave a limited power to legislate with respect to “conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one State.” Thus, the original legislation related only to interstate industrial disputes. It prohibited strikes (and lockouts), but provided for a peaceful means of settling such disputes by conciliation and/or arbitration. The Commonwealth Court of Conciliation and Arbitration (the Arbitration Court) was established, and was given power to make awards in settlement of interstate industrial disputes.

117               The legislation was directed to the resolution of widespread disputation, not to the resolution of individual disputes between a single employee and a single employer. The system that was created depended on the collective participation of employers and employees. In order to provide for such participation, the original Act allowed for the registration and incorporation of employer and employee organisations. There were substantial advantages flowing from registration under the original Act. Registered organisations were given the right to institute proceedings in the Arbitration Court, and had a right of audience before the Arbitration Court. The Arbitration Court was empowered to award preference to union members. No new organisation could be registered if there was an existing registered organisation to which persons could conveniently belong. In The Jumbunna Coal Mine, No Liability and Another v The Victorian Coal Miners’ Association (1908) 6 CLR 309, the High Court upheld the provisions of the original Act which provided for the registration and incorporation of organisations, and for the rights and obligations of those organisations. The High Court determined that such provisions were incidental to the exercise of power under s 51(xxxv) of the Constitution. O’Connor J explained the rationale for the creation of registered organisations, at 350-1, as follows:

‘An industrial dispute is something more than a dispute between an employer and his individual workmen. It is a dispute between a combination of workmen and their employer or employers. The questions involved generally affect the whole trade, and a settlement is seldom adequate unless it binds the whole trade. It is not practicable to bring all employés in a trade before the Court, nor all the masters. Some method of representation of the disputants is therefore essential for the purpose of dealing with the dispute in its initial stages, of bringing the parties before the Court, and of enforcing observance of the award.

Part V. creates a system by which associations of employers and associations of employés may, on complying with certain conditions, be registered as organizations. By registration they become corporations with powers specifically limited to the purposes of the Act. They represent their members collectively, and thus constitute the parties with whom the Court deals for purposes of conciliation, arbitration, and the enforcement of awards.’

118               The legislation also imposed various forms of control on unions in order to secure proper participation in the system of industrial regulation. The Arbitration Court had power to deregister a union if the rules of the organisation were tyrannical or oppressive, or imposed unreasonable conditions on members, or if the accounts of the union were not audited in accordance with the rules, or if the organisation wilfully neglected to obey an order of the Court. Unions were required to discipline members who engaged in unlawful industrial action, or breached orders.

119               The place of unions in the compulsory arbitration system is summarised by A Frazer ‘Trade unions under compulsory arbitration and enterprise bargaining: a historical perspective’ in P Ronfeldt and R McCallum (eds), Enterprise Bargaining, Trade Unions and the Law, Federation Press, Sydney, 1995 at 54, as follows:

‘From its inception compulsory arbitration has been assumed to require the participation, promotion and regulation of unions as a key element of the system. This involvement rested on two notions: that employees could only be effectively represented (and regulated) by collective entities; and that certain of these entities should be given special status on registering under the system. Once registered unions became constituted as new right-and-duty-bearing legal entities and gained protections and preferences for both themselves and their members. As HB Higgins recognised, the whole system of compulsory arbitration was based on unions; indeed, ‘without unions, it is hard to conceive how arbitration could be worked.’ By this he meant that it was necessary for the demands and interests of a mass of employees to be represented collectively by legally constituted and responsible organisations. With legalised unions, employers could be assured that demands of employees were presented by a representative body and that only important issues would be pursued. Employees would have their voice heard without fear of reprisal, since “the individual employee is generally powerless”. The interest of the Arbitration Court and the public it represented was also furthered since unions in practice tended towards moderation. By constituting unions as separate legal entities – autonomous, democratically governed and subject to decisions of the Arbitration Court – the arbitration system could operate under the assumption that the interests of workers were being represented, while unions would also ensure their members’ compliance with court orders and awards. Hence the basis of compulsory arbitration was inherently collectivist, depending on unions as primary parties whose active participation was essential to the operation of the system.’

120               In due course, the question arose as to the basis upon which unions participated in the system. Did they act as agents for members, or were they party principals acting on their own account? If they acted as agents for members they could not raise a dispute with an employer who did not employ union members. That approach was rejected in Burwood Cinema Ltd v Australian Theatrical and Amusement Employees’ Association (1924-1925) 35 CLR 528 (Burwood Cinemas). Powers J explained the position at 544-545:

‘The Act was passed to allow collective bargaining and settlement of disputes, and not individual bargaining and settlement of disputes between employers and employees. As my brother Higgins put it in the case of Australian Workers’ Union v. Pastoralists’ Federal Council, “the Act recognizes unions, and makes unionism a part of its scheme. One of the ‘chief objects’ of the Act is ‘to facilitate and encourage the organization of representative bodies of employees’; and Part V. of the Act is specially devoted to the constitution of organizations for the purposes of the Act.’

121               Starke J said at 551:

‘An organization registered under the Arbitration Act is not a mere agent of its members: it stands in their place, and acts on their account and is a representative of the class associated together in the organization. It is, as my brother Higgins said, “a party principal,” and “not a mere agent or figurehead.”’

122               In Metal Trades Employers Association v Amalgamated Engineering Union (1935) 54 CLR 387, the High Court held that the Arbitration Court had power to make an award which bound employers to accord terms and conditions of employment to union members and non-union members alike. Latham CJ and McTiernan J followed Burwood Cinemas in explaining the basis upon which unions participated in the system. Latham CJ said at 403-404:

‘Industrial disputes are essentially group contests – there is always an industrial group on at least one side.

A claim of an individual employee against his employer is not in itself an industrial dispute. If it professes to be based upon an existing right (as, for example, a contract of employment, or an award (see Mallinson v. Scottish Australian Investment Co. Ltd.) such a claim may give rise to litigation in the civil Courts – but it is not an industrial dispute. If a claim is made by an individual employee for some improvement in his pay or conditions of employment, the refusal of the claim by his employer may result in a personal dispute, but this in itself would not be an industrial dispute. One necessary element of an industrial dispute, as distinguished from other disputes, is the circumstance that a demand is made by or upon a group of employers or employees. Thus an industrial organization is engaged in such a dispute when it makes what may be called an industrial demand on behalf of its members, present and future. In a forensic sense the organization is the party to the dispute, though it asks for nothing for itself as an organization. In another sense, the existing members of the organization are the parties to the dispute. The object of the dispute is to obtain rights for them or to cause them to become subject to obligations. The future members of the organization, though not in existence as such, are also regarded as represented in the dispute by the organization (Burwood Cinema Ltd. v. Australia Theatrical and Amusement Employees’ Association).’

123               Whilst the Constitution did not give the Federal Parliament a general power to regulate wages and conditions of employment, the reach of the compulsory arbitration system expanded so that it became the instrument of general regulation of wages and conditions of employment. This expansion is partly explained as a result of the acceptance by the courts of the concept of paper disputes and of the doctrine of ambit. Annual national wage cases set the benchmarks for wages and conditions, which then flowed on to many other awards. Further, test cases established economy wide standards of employment, such as entitlements to termination and redundancy payments. In 1956, following The Queen v Kirby; Ex Parte Boilermakers’ Society of Australia (1955-1956) 94 CLR 254, Parliament conferred the arbitral and conciliation function on the Commonwealth Conciliation and Arbitration Commission, and the judicial function continued to be exercised by the Arbitration Court.

124               Throughout the period under consideration the unions played a central role in the compulsory arbitration system. In the first major review of the system, which was completed in 1985 by the Committee of Review of Australian Industrial Relations, (the Hancock Committee), the role of unions was acknowledged thus:

‘Trade unions and associations of employers have played and continue to play an indispensable part in the conciliation and arbitration systems. The structured system of dispute resolution developed under Commonwealth law embodies the concept of recognition by registration. This provides an orderly system of representation and enables the tribunals to make orders which bind parties ‘known’ to them and to the law. The registration system gives trade unions and employer associations special recognition under the Commonwealth Act and gives them corporate status.’

[Report on Australian Industrial Law and Systems, Vol 2, 1985, Australian Government Publishing Service, Canberra, at par 9.6]

125               Then, as late as 1993, the Australian Industrial Relations Commission presided over by the President, Justice O’Connor, said in Re Aluminium Industry Award 1983 (1994) 56 IR 403 at 442:

‘The establishment of conditions of employment at an enterprise level through a system of individual contracts between a company and each of its employees is one at variance with our system of industrial relations, a system which, since its inception, has been based upon collective processes as the means of providing terms and conditions of employment at the workplace. The present IR Act is based on a system of collective regulation in which registered organisations of employers and employees acting as parties principal are an integral part of the collective processes which operate under the Act.

The company’s action in deliberately seeking to eliminate the role of the unions at the workplace through the establishment of individual staff contracts, is inconsistent with the central role that registered organisations are given under the IR Act, in the prevention and settlement of industrial disputes. The Commission has a statutory obligation to encourage registered organisations.’

126               Of course, over the years since it was introduced the statute has been amended many times. The degree of regulation of the affairs of the unions has been extended and some of the rights given to unions have been changed. However, the fundamental concept that unions have a central role as parties principal in establishing and enforcing the terms and conditions of employment has not changed.

127               In the last ten years, two new concepts have been successively introduced into the labour relations system. The first was enterprise bargaining, and the second was individual employment contracts. Both represented a shift away from the system of centralised compulsory arbitration which operated in the previous 90 odd years. For the purposes of the present discussion, the significant factor is the extent to which each of these new concepts has impacted upon the role which unions have performed in the system since 1904.

128               Enterprise bargaining mechanisms were introduced in the Industrial Relations Reform Act 1993 (Cth) (the 1993 Act). A major change was the introduction of enterprise flexibility agreements, which could be made between employers and employees without the necessary involvement of a union, and which would prevail over awards. Richard Naughton in an article, ‘Sailing into uncharted seas: The role of unions under the Workplace Relations Act 1996 (Cth)’ Australian Journal of Labour Law, vol 10,1997, pp 112-132, explained the impact of the 1993 Act on the role of unions as follows:

‘The Keating Government’s Industrial Relations Reform Act 1993 (‘Reform Act’) radically reshaped the IR Act. The legislation sought to introduce a greater degree of flexibility into the Australian industrial system, by making enterprise bargaining the primary focus of the system. In spite of the changes it introduced, the Reform Act retained many features of the traditional, collective system. Unions were guaranteed a role in certified agreements (the dominant bargaining instrument) and kept all their well-entrenched “privileges”. Mitchell has described the changes made by the Reform Act as an attempt to incorporate unions within the process of “deregulation”. Throughout the 1980s the Federal Government ‘steered a course, in co-operation with the union movement, for the bargained de-centralisation of industrial relations’. In this analysis the previous Government consciously eschewed the ‘non-union’ model of deregulation favoured by New Zealand, Britain, and some Australian state systems.’

129               The Liberal/National Party Coalition, elected to power on 2 March 1996, aimed at shifting the emphasis of the labour relations system from award regulation of employment conditions to agreements between employers and individual employees at the workplace level (AWA’s). The original policy aim involved the introduction of a simple and attractive mechanism for the making of workplace agreements, which would prevail over awards, and would not involve any necessary input by unions or the Australian Industrial Relations Commission. The final form of the Workplace Relations Act 1996 (the 1996 Act) was a result of political compromise, necessary because the Coalition did not command a majority in the Senate. In the event, the 1996 Act did not reflect the entire original policy aim. In particular, the making of an AWA under the 1996 Act was a far from simple matter. In RC McCallum ‘Australian Workplace Agreements – an analysis’, Australian Journal of Labour Law, vol 10, 1997, pp 50-61, Professor McCallum offered the following opinion, at p 61:

‘Instead of being the centrepiece of the WR Act, I venture to think that AWAs are likely to be relegated to the sleepy back-water of Australian industrial relations law.’

130               Professor McCallum’s view seems to be supported by recent figures which show the use of AWAs after seven years since their introduction. The most recent figures produced by the Office of the Employment Advocate show that over 90% of employees subject to the Federal statute are employed under collective agreements with 81.93% under Federal Awards. Only 8.95% are employed under AWAs (Office of the Employment Advocate 2003, Sydney,viewed 28 August 2003, ). In a recent major assessment of the acceptance of AWA’s, R Mitchell and J Fetter, ‘Human resource management and individualisation in Australian labour law’, The Journal of Industrial Relations, Vol. 45, No. 3, September 2003, pp. 294-327, the authors express the view that:

‘Despite the increasing trend in the rate of approvals, AWAs statistically constitute only a very minor aspect of Australian industrial regulation, covering a tiny proportion of the workforce (1.9%).’

131               Other provisions of the 1996 Act were directed to changing the functions of unions. A full description is contained in Naughton, op cit. One major change was the modification of the “conveniently belong” test. Previously, existing unions were protected from encroachment by new unions seeking to cover the same members, where those members could conveniently belong to the existing union. Under the new s 189(1)(j), a union could be registered if members could more conveniently belong to the new union and the new union could more effectively represent those members. This again was a political compromise position reached after the government sought the deletion of the conveniently belong requirement altogether. Also, for the first time, the legislation provided for enterprise based unions (s 188(1)(c)). This allowed for the formation of a union in a single workplace. Using a different Constitutional basis, there was no longer a need for the organisation to be able to engage in an interstate industrial dispute. Further, the previous policy of encouraging the amalgamation of many smaller unions into larger ones was countered by new Div 7A Pt 9 of the 1996 Act. The new provisions allowed for disamalgamation of parts of unions that had come together under previous provisions, which had been introduced to facilitate amalgamation. The union right of entry provisions (s 285A-G) provided greater rights than the original Bill proposed, but less than previously existed. The 1996 Act added to the existing prohibition of victimisation of a person because that person was a member of a union, a prohibition of victimisation of a person because that person was not a member of a union. Union preference provisions were rendered void.

132               At the same time as the new legislation provided for AWAs, and restricted the functions of unions, the legislation sought to reduce the role of awards by significantly narrowing the range of matters which they could cover (ss 89A(2) and (3)). For a full discussion of the treatment of awards under the 1996 Act see M Pittard, ‘Collective employment relationships: reforms to arbitrated awards and certified agreements’, Australian Journal of Labour Law, vol 10, 1997 pp 62-88. Nevertheless, as discussed above, awards still regulate a large proportion of employment relationships.

133               In summary, when one surveys the last century of labour relations in Australia, one sees a clear continuity in the central role of unions in a compulsory arbitration system for the first 90 odd years. In 1996 radical changes were proposed, but were considerably watered down through political compromise. The result is that the award system continues albeit in an altered form. Unions continue to play a central, but modified, role. It would be wrong to view the current form of the legislation as having discarded the previous system in favour of a totally individual contract based system. In truth, the current statute has produced an hybrid system, in which the individual contracts system has been added onto the pre-existing compulsory arbitration model. Both exist side by side. And, in practice, the figures demonstrate that the award system remains far more widespread than the system of individual contracts.

134               It is in the light of this background and context that we must approach the meaning of s 298L(1)(a). The prohibited reason contained in s 298L(1)(a), so far as it relates to union members, has existed since 1904 when the original statute was enacted. At that time, unions had the central functions in the labour relations system, as has just been described in these reasons. Unions were, for instance, responsible for bringing interstate disputes before the court and for enforcing compliance with awards. These functions necessarily involved unions in activities such as collective negotiations with employers, and with investigating award breaches, perhaps by exercising a right of entry into the employer’s premises. The exercise of these functions and powers was capable of generating employer resistance and antagonism. They were more likely to be the reason for an employer to dismiss an employee than the mere fact of an employee’s membership of a union. Section 9 of the 1904 Act was the only protection which union members had against dismissal. This context demonstrates that Parliament intended to protect union members against dismissal caused by the union fulfilling the functions towards members reposed in the unions by the Act. Consequently, I am unable to agree with Kenny J in AWU v BHP (Iron Ore) that there is nothing in the terms of s 298L(1)(a), or elsewhere in the Act, to justify the view that s 298L(1)(a) is concerned with more than a person’s membership of a union. Doubts about her Honour’s conclusion have also been expressed by Weinberg J in National Union of Workers v Qenos Pty Ltd (2001) 108 FCR 90; [2001] FCA 178 (Qenos), at pars 124 and 125. See also Marshall J in Elliott v Kodak Australia Pty Ltd [2001] FCA 807 (Elliott) at pars 34 and 35.

135               It will be recalled that Kenny J gave, as a further reason for her conclusion that s 298L(1)(a) does not extend to conduct directed to an employee because of that person’s activities as a union member, the fact that sub-sections (f), (g), (i), (m) and (n) partly protect the activities of a union member. Although her Honour did not expressly refer to the maxim expressio unius est exclusio alterius (an express reference to one matter indicates that other matters are excluded), her reasoning reflects the application of that maxim. That is to say, her Honour reasoned that the express protections provided in ss 298L(1)(f), (g), (i), (m) and (n) indicated that those protections were excluded from s 298L(1)(a). There are difficulties with this approach.

136               The maxim is applied by courts with caution: Houssein v Under Secretary of Industrial Relations and Technology (N.S.W.) (1982) 148 CLR 88, at par 10; Ainsworth v Criminal Justice Commission (1991-1992) 175 FCR 564 at 575-576; (1992) 106 ALR 11 at 16-17; Wentworth v New South Wales Bar Association (1992) 176 CLR 239 at 250; (1992) 106 ALR 624 at 624-628; DC Pearce & RS Geddes, Statutory Interpretation in Australia, 5^th edn, Butterworths, Sydney, 2001, at par 4.26. This is because there may be other explanations for the specific references, than simply an intention to exclude them from the general reference. The approach is not to be applied if it would bring about a result that the legislature was unlikely to have intended: Ainsworth at 575.

137               Further, the history of the Act in general, and s 298L(1) and its predecessors in particular, suggests that the activities dealt with in ss 298L(1)(f), (g), (i) and (n) were already encompassed within s 298L(1)(a). As previously explained, the history of s 298L(1)(a) shows that it was intended to apply to conduct taken against an employee because the employee engaged in activities as a union member, and to conduct taken against an employee because of the activities of a union taken as an incident of the person’s membership. Section 298L(1)(f) and (g) concern the institution by, and participation in, secret ballots by union members. That activity is defined by reference to the status of a person as a union member. Hence, the activity would fall within s 298L(1)(a). Section 298L(1)(i) also includes action taken by a union member in that capacity. Where a member engages the industrial law, that person’s conduct will in some circumstances be properly characterised as an activity of the person taken as a member of the union. That action would also fall within s 298L(1)(a). Finally, s 298L(1)(n) is directed to the activity of a union member who has taken action to further the interests of the union. Such activity falls squarely within s 298L(1)(a) because it is an activity undertaken by a member in the capacity of a member of the union.

138               An examination of the circumstances in which each of the above subsections was introduced provides an explanation for the introduction of subsections which have a degree of overlap and duplication with s 298L(1)(a).

139               Where an amendment to industrial legislation has created a new right, such right is often accompanied by a protection for its enjoyment. The creation of the right, together with provision for its protection, constitutes a complete package to be presented to Parliament. However, often such protection would have been provided under an existing general protection in any case. The new provisions therefore overlap with, and highlight specific applications of, existing provisions in the Act. The following examples demonstrate this process.

140               Section 170CK(2)(b) provides that an employer must not terminate an employee’s employment for the reason of trade union membership and s 170CR(1)(a) provides for the imposition of a penalty for such conduct. These provisions are duplicated in part in s 298K(1)(a), s 298L(1)(a), and s 298U(a), (b) and (c). When the predecessor to s 170CK(2)(b) was first introduced by the 1993 Act (as s 170DF(1)(b)) it was part of a new Division 3 relating to termination of employment. The object of the Division was to give effect to certain international instruments including the International Labour Organisation Convention (No.158) concerning Termination of Employment at the Initiative of the Employer (22 June 1982, Geneva, [1994] ATS 4) (Termination of Employment Convention) (s 170CA(1)). In accordance with that convention, a series of sections (ss 170DA – G) prohibited termination without proper notice, termination without giving an employee an opportunity to defend himself or herself against allegations of inadequate performance or conduct, or termination without a valid reason. The prohibition on termination for reason of union membership was, no doubt, included in Division 3 because it was one of the invalid grounds for termination stipulated in Article 5 of the Termination of Employment Convention. It was part of that package, and was so treated, even though that particular prohibition was already included in the predecessor to s 298L(1)(a), namely, s 334(1)(a).

141               Similarly, s 170MU prohibits an employer from dismissing an employee because the employee has engaged in protected action, which is industrial action in support of a proposed agreement (s 170ML(2)). Section 170NF provides for the imposition of a penalty for breach of s 170MU. These provisions are duplicated in part in s 298K(1)(a), s 298L(1)(n) and s 298U. The separate inclusion of s 170MU derives from the provision’s history. It originated in s 334A of the 1993 Act. The 1993 Act introduced a package relating to enterprise bargaining, which included a limited right to strike. The idea was that employers and employees would bargain at the workplace in order to reach an agreement for that workplace. In aid of the process, the amendments made it legal for the parties to take industrial action. Employees were provided with protection from dismissal and other consequences for engaging in the permitted industrial action, as part of this package of changes.

142               The same packaging process, and resultant duplication, can be seen in operation in relation to ss 298L(1)(f), (g), (i) and (n). As the present discussion has been limited to the activities of union members, it is not necessary to address subs (m), to which Kenny J referred, as it relates to the activities of officers, rather than members, of unions.

143               Sections 298L(1)(f) and (g) prohibit certain conduct by an employer engaged in because a union member has sought an order for a secret ballot of members to be held at a workplace in relation to the taking of industrial action, or has participated in such a ballot. The provisions were first introduced in 1988 as s 334(1)(c) and (d) of the Industrial Relations Act 1988. They were introduced at the same time as ss 135 and 136 of that Act, which provided that union members could apply to the Australian Industrial Relations Commission for orders that such a secret ballot be conducted. Once again, we see the pattern of the amending statute providing for both the right and its protection. Applying for a secret ballot, or participating in such a ballot, will usually arise in the context of an industrial issue in which a union is likely to be involved. In that sense the circumstances are connected with a person’s membership of the union so that, if an employer dismissed an employee because the employee applied for, or participated in, such a secret ballot, the dismissal would be properly described as for the reason that the person was a member of the union.

144               Section 298L(1)(i) concerns conduct taken against an employee for seeking the enforcement of an industrial law. A similar provision, but limited to conduct constituted by the dismissal of an employee, was first introduced in the 1993 Act as s 170DF(1)(e) as follows:

‘170DF (1) An employer must not terminate an employee’s employment for any one or more of the following reasons, or for reasons including any one or more of the following reasons:

…

(e) the filing of a complaint, or the participation in proceedings, against an employer involving alleged violation of laws or regulations or recourse to competent administrative authorities;’

145               The section was included in Division 3 which relates to termination of employment. As noted above, one object of Division 3 was to give effect to the Termination of Employment Convention (see schedule 10 of the Act). Section 170DF(1)(e) adopted the wording of article 5(c) of the Termination of Employment Convention and was part of a group of sections designed to reflect the rights recognised by that Convention. To the extent that s 170DF(1)(e) encompasses resort by union members to industrial laws, or by unions on behalf of members, it duplicates part of the subject matter at s 298L(1)(a).

146               In the 1996 amendments, the terms of s 170DF(1)(e) were re-enacted in the 1996 Act as s 170CK(2)(e), and s 298L(1)(i) was introduced. The reason for the introduction of s 298L(l)(i) is not explained by the parliamentary materials. It duplicates the essence of much of s 170CK(2)(e) in relation to the dismissal of an employee. The new provision, however, extends the protection from termination to also include the other conduct referred to in s 298K(1)(b) - (e). Given the similarity of the subject matter of s 298L(1)(i) and s 170CK(2)(e), it is reasonable to conclude that s 298L(1)(i) also originated from the same source, namely, the Termination of Employment Convention. In this respect, s 298L(1)(i) differed from the other subsections of s 298L(1). The distinct source of s 298L(1)(i) explains why s 298L(1)(i) was introduced into s 298L, even though it duplicated part of s 298L(1)(a). A further reason was that although s 298L(1)(a) encompasses the protection referred to in s 298L(1)(i), it is limited in operation to union members whereas the protection referred to in s 298L(1)(i) applies to all employees. It was a convenient drafting approach to express s 298L(1)(i) in terms which included union members, but went beyond that group.

147               Section 298L(1)(n), relevantly, concerns conduct directed against a union member because that member has engaged in action that is lawful and authorised and which is undertaken to further the industrial interests of the union. The predecessor of this section was first introduced in 1973 as s 5(1)(f) of the Conciliation and Arbitration Act 1973 (Cth). The context in which the provision was introduced is evident from the second reading speech of Mr Clyde Cameron, the Minister for Labour. He said:

‘The Bill amends section 5 of the Act to provide protection to officials, or members of unions against discriminatory action within the employer’s establishment where the official or member has merely upheld the industrial interests of the employees, so long as the action he takes is within the limits of the authority given to him by the organisation. The Bill also provides protection for trade unions and their officials against actions for conspiracy or inducement of breach of contract founded on the events of an industrial dispute. I want to emphasise, however, that this protection will not extend to acts which cause death or physical injury to a person, physical damage to property or involves defamation, or to threats of such acts.

The provisions protecting union officials from tortuous actions stem basically from the Government’s belief that the right to strike is a fundamental right which every employee must have. Actions for tort founded on industrial disputes represent a direct negation of the right to strike. A strike by its very nature carries with it the threat that the employer will suffer some material loss. If an employer is to be permitted to recover at law any loss that he suffers from his employees then the right to strike becomes meaningless. Workers go on strike whatever the law may have to say about it. That is the clear experience throughout the whole history of the arbitration system in Australia and our experience is similar to what happens in other countries such as the United States, England and the other European nations.’

(Australia, House of Representatives, Debates, vol HR83, 1973, p 1428.)

148               The speech continued by outlining the history of common law proceedings taken against unions in the United Kingdom, and the then current statutory immunity from such liability in the United Kingdom. The Minister further said, at 1429:

‘The immunity from actions for tort that was granted to British unions by the House of Commons in 1906, is now extended by this Bill to officials and members of the Australian trade unions.’

149               Thus, again, the amendment of s 5(1) was made as part of a more general policy, namely, to protect union members from liability for taking industrial action. It was useful for the Minister, in presenting the entire package, to make reference to a special protection against dismissal and other adverse consequences against employees as a consequence of those employees engaging in industrial action, although s 298L(1)(a) would have provided protection in certain cases.

150               It follows from the history of s 298L(1) that Parliament intended s 298L(1)(a) to cover conduct taken against employees because they had taken action as members of a union, and because a union had taken action as an incident of that employee’s membership of a union. It did not intend to limit s 298L(1)(a) by reference to ss 298L(1)(f), (g) (i) and (n). Rather, those subsections duplicated, in part, the provision of s 298L(1)(a) for specific historical reasons concerning the introduction of each of those subsections.

151               The trend away from collective bargaining and towards individual employment contracts in labour relations has been a phenomenon in many countries. Advocates for individual employment contracts argue that such contracts promote a more efficient workplace. It is thus suggested that there is an economic justification for the change. One aspect of the move towards individual employment contracts is the reduction or removal of third party intervention in workplace relations. Proponents of such change argue that a workplace will operate more efficiently and flexibly if employers relate directly with employees, free of the involvement of unions or the supervision of industrial tribunals. Because the move to individual employment contracts involves the elimination or reduction of the role of unions in the negotiation of terms and conditions of employment, arguments have arisen that employers have made the move in order to rid the workplace of union involvement, rather than for the economic advantage said to flow from the introduction of individual employment contracts. These arguments have led to litigation in domestic tribunals and courts in many countries. In most of these countries, the law has provided protection to employees against discrimination or victimisation because of union membership. The litigation has therefore been concerned with whether the change from collective bargaining to individual employment contracts has infringed the rights of employees to protection against victimisation or discrimination. In Australia, examples of such litigation include Telstra, Burnie and AWU v BHP.

152               Because the issue of the interrelationship between anti-discrimination laws and the trend towards individual contracts in labour relations has been so prominent in labour jurisprudence in recent times, it is important that Australian courts have regard to the views expressed in other countries.

153               The litigation in the United Kingdom is particularly instructive for present purposes. The cases there demonstrate a wide divergence of judicial opinion concerning the scope of protection against discrimination and victimisation because of union membership. It is useful to set out these views in order to inform the arguments in the present case. The issues considered are sufficiently similar to the issues arising under s 298L(1)(a) to make this a worthwhile exercise. But, in the end, the primary value of reference to the United Kingdom litigation is to be found in its final chapter. This occurred in July 2002 when the European Court of Human Rights (European Court) determined that the United Kingdom law, as determined by the House of Lords, did not conform with article 11 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (4 November 1950, Rome, 213 UNTS 221) (European Convention). The Court held that the protection accorded by article 11 extended beyond conduct directed against an employee because the employee held a union ticket. It extended to a prohibition of conduct directed against an employee because of the activities of a union as an incident of the employee’s membership of the union. The decision of the European Court bears upon the current issue as a result of Australia’s international law obligations and the impact of those obligations on domestic law. This matter will be addressed immediately. Then, the United Kingdom litigation and the decision of the European Court will be examined. Finally, reference will be made to some Canadian jurisprudence relating to the issue.

154               The role of international law in the interpretation of Australian statutes was dealt with in Minister for Immigration and Ethnic Affairs v Teoh (1994-1995) 183 CLR 273 (Teoh) by Mason CJ and Deane J at 287, as follows:

‘It is accepted that a statute is to be interpreted and applied, as far as its language permits, so that it is in conformity and not in conflict with the established rules of international law (Polites v The Commonwealth (1945) 70 CLR 60 at 68-69, 77, 80-81). The form in which this principle has been expressed might be thought to lend support to the view that the proposition enunciated in the preceding paragraph should be stated so as to require the courts to favour a construction, as far as the language of the legislation permits, that is in conformity and not in conflict with Australia’s international obligations. That indeed is how we would regard the proposition as stated in the preceding paragraph. In this context, there are strong reasons for rejecting a narrow conception of ambiguity. If the language of the legislation is susceptible of a construction which is consistent with the terms of the international instrument and the obligations which it imposes on Australia, then the construction should prevail. So expressed, the principle is no more than a canon of construction and does not import the terms of the treaty or convention into our municipal law as a source of individual rights and obligations (R v Secretary of State for Home Department; Ex parte Brind [1991] 1 AC 696 at 748).’ [emphasis added]

155               On 28 February 1973, Australia ratified ILO Convention (No 87) concerning Freedom of Association and Protection of the Right to Organise (9 July 1948, San Francisco, [1974] ATS 3) (Freedom of Association Convention) and also the ILO Convention (No 98) concerning the Application of the Principles of the Right to Organise and to Bargain Collectively (1 July 1949, Geneva, [1974] ATS 5) (Right to Organise Convention). Article 2 of the Freedom of Association Convention deals with freedom of association as follows:

‘Workers and employers, without distinction whatsoever, shall have the right to establish and, subject only to the rules of the organisation concerned, to join organisations of their own choosing without previous authorisation.’

156               Article 11 of the Freedom of Association Convention deals with the right to organise as follows:

‘Each Member of the International Labour Organisation for which this Convention is in force undertakes to take all necessary and appropriate measures to ensure that workers and employers may exercise freely the right to organise.’

157               Article 1 of the Right to Organise Convention relevantly provides:

‘1. Workers shall enjoy adequate protection against acts of anti-union discrimination in respect of their employment.

2. Such protection shall apply more particularly in respect of acts calculated to --

…

(b) cause the dismissal of or otherwise prejudice a worker by reason of union membership …’

158               Article 22(1) of the International Covenant on Civil and Political Rights (19 December 1966, New York, [1980] ATS 23) provides:

‘Everyone shall have the right to freedom of association with others, including the right to form and join trade unions for the protection of his interests.’

159               This instrument came into force for Australia on 13 November 1980. See also: Article 8 of the International Covenant on Economic, Social and Cultural Rights (19 December 1966, New York, [1976] ATS 5) which came into force in Australia on 10 March 1976.

160               In the case of the Act under consideration, the impact of Australia’s international obligations is made explicit by the principal object, which is set out in s 3 as follows:

‘The principal object of this Act is to provide a framework for cooperative workplace relations which promotes the economic prosperity and welfare of the people of Australia by:

…

(f) ensuring freedom of association, including the rights of employees and employers to join an organisation or association of their choice, or not to join an organisation or association; and

…

(k) assisting in giving effect to Australia’s international obligations in relation to labour standards.’ [emphasis added]

161               Section 23 of the Employment Protection Consolidation Act 1978 (UK) (the UK Act) provided:

‘(1) Every employee shall have the right not to have action (short of dismissal) taken against him as an individual by his employer for the purpose of – (a) preventing or deterring him from being or seeking to become a member of an independent trade union, or penalising him for doing so; or (b) preventing or deterring him from taking part in the activities of an independent trade union at any appropriate time, or penalising him for doing so; or (c) compelling him to be or become a member of any trade union or of a particular trade union or of one of a number of particular trade unions.’

162               Section 58 of the UK Act provided:

‘(1) The dismissal of an employee by an employer shall be regarded for the purposes of this Part as having been unfair if the reason for it (or, if more than one, the principal reason) was that the employee – (a) was, or proposed to become, a member of an independent trade union, or (b) had taken part, or proposed to take part, in the activities of an independent trade union at an appropriate time, or (c) was not a member of any trade union, or of a particular trade union, or of one of a number of particular trade unions, or had refused or proposed to refuse to become or remain a member.’ [emphasis added]

163               Section 58(1)(a) of the UK Act has parallels with s 298L(1)(a) of the Act. Section 23 of the UK Act is similar to s 298M of the Act. The UK litigation has involved cases brought under both s 23 and s 58 of the UK Act. The UK courts have treated the membership issues arising under s 23(1)(a) and s 58(1)(a) of the UK Act in the same way.

164               In Discount Tobacco & Confectionery Ltd v Armitage [1990] IRLR 15 (Armitage), Mrs Armitage was dismissed after she had approached her union concerning the terms of her employment, and the union wrote a letter to her employer on her behalf. Mrs Armitage successfully brought a claim under s 58(1)(a) of the UK Act in the Industrial Tribunal. On appeal to the Industrial Appeals Tribunal, the employers argued that there was a distinction between membership of the union, and an employee using the services of a union in negotiating the terms of employment. Knox J rejected the distinction, at 16, as follows:

‘We find ourselves unconvinced of that distinction. In our judgment, the activities of a trade union officer in negotiating and elucidating terms of employment is, to use a prayer book expression, the outward and visible manifestation of trade union membership. It is an incident of union membership which is, if not the primary one, at any rate, a very important one and we see no genuine distinction between membership of a union on the one hand, and making use of the essential services of a union, on the other.

Were it not so, the scope of section 58. (1)(a) would be reduced almost to vanishing point, since it would only be just the fact that a person was a member of a union, without regard to the consequences of that membership, that would be the subject matter of that statutory provision and, it seems to us, that to construe that paragraph so narrowly would really be to emasculate the provision altogether.’ [emphasis added]

165               In 1994, the Court of Appeal heard two appeals together, namely, Associated British Ports v Palmer and Others and Associated Newspapers Ltd v Wilson [1994] ICR 97 (Palmer and Wilson). Both appeals arose under s 23(1)(a) of the UK Act. Palmer concerned workers employed in the port of Southampton. Prior to the events in question, the union and the employer had an agreement under which the employer recognised the union for the purposes of collective bargaining. That agreement was incorporated into the individual employment agreements with each employee. In 1991, the employer offered new employment contracts to manual grade employees. Under the new agreements, the employees gave up the “right” to union representation which they had under the previous contracts. No employee was compelled to accept the offer. For those who retained the previous contracts, the union continued to undertake collective bargaining with the employer. However, those who signed the new contracts were granted a significant pay rise. This pay rise was not offered to those who did not sign the new contracts. Those who signed the new contracts could, however, continue to be members of the union. Dillon LJ (with whom Butler-Sloss and Farquharson LJJ agreed) said at 101:

‘But there is also a question to be considered of what is involved in the concept, in section 23 and section 58, of being a member of an independent union. That comes about because it is clear that the bottom line of the current thinking of employers in this field …is that “membership” means no more than that a person has his name recorded in the union’s register of members and holds a union membership card, with the consequence that it is suggested … that it is a legitimate standpoint for an employer to say to an employee: “We have no objection to your being a member of a union, so long as you keep your membership card in your pocket unused and do not seek to make any use of your membership which could have any impact on us or our business.”’ [emphasis added]

166               His Lordship then referred to Armitage, set out in the passage extracted at par 166 of these reasons, and concluded that the decision in Armitage was “unquestionably correct”. His Lordship then addressed an argument based on a suggested distinction between the reason for the action, and the means adopted to achieve the objective or the intermediate or collateral results, which might be caused in achieving it. He said at 102-3:

‘To my mind that distinction sought to be drawn is in many respects unreal, and that is illustrated by the difference in approach in relation to the alleged purpose between the employers in the present case and the employers in Associated Newspapers Ltd v Wilson, post, p. 105G. It was said in evidence for the employers in the present case that their purpose in offering the personal contracts and the conditional pay rise was “to put into the hands of management the opportunity to discriminate in terms of pay in favour of those who are outstandingly dedicated.” As a means towards that end, or an intermediate result, they sought to ensure they did not have to negotiate over pay and conditions with a union representative. They looked on the union as a hurdle and their purpose in conferring benefits on those who accepted personal contracts was said to be not to deter or penalise those who did not accept such contracts but to benefit the employers to the extent that they could conduct their business more efficiently if they did not have the need to indulge in what they saw to be the time-consuming task of negotiating with union officials. By contrast, in Associated Newspaper Ltd v Wilson it was said for the employers that their purpose in offering a pay rise to those employees who entered into personal contracts of employment by a certain date was to end collective bargaining with unions over pay and conditions of work. No doubt they had a reason for wanting to end collective bargaining, but they did not put forward that reason as being their “purpose” in relation to section 23.’

167               Dillon LJ addressed the employer’s fall back position, at 104-5, as follows:

‘Mr Elias [counsel for the employer] was reluctant to accept that being a member of an independent union meant no more, in sections 23 and 58, than being registered as a member in the books or the union and having a member’s card. No doubt he realised that it could be regarded as unreal to suppose that those sections were only intended to protect the union card divorced from all incidents of membership or rights of the member. He therefore accepted that as a fallback position only, but he urged on us that as recognition of a union by an employer was voluntary, and there were union members employed by employers who did not recognise any union, the incidents of membership and rights of a member of a trade union which sections 23 and 58 were intended to protect could at most be the rights of the member as between himself and the union.

He submitted that where an employee was a member of a union there were three separate bilateral relationships, that is to say, (1) between the employee and the union, (2) between the employee and the employer and (3) between the employer and the union. He said that the rights of the employee as a member of the union and the incidents of his membership were concerned exclusively with the first. Put shortly, he said that the concept of membership of a trade union involves only an employee’s relationship with the trade union. It does not extend to the trade union’s relationship with the employer and it is protected only as part of the individual’s right to freedom of association. That, in my judgment, is too narrow an analysis, at any rate where, as here, at the relevant time the employer recognised the union for the purposes of collective bargaining on behalf of the employee.

Beyond that, however, even if the employer has never recognised any union and is not bound to negotiate with the union or to negotiate with the employee through the union, the employer may invite trouble if the employer chooses to take action to dismiss or penalise the employee for getting the union to endeavour to negotiate with the employer, or to take some other step with the employer in relation to the employee’s employment. In such a case the employer will run the risk, in the light of the Armitage case [1990] I.R.L.R. 15, that an industrial tribunal will hold that the action in question was taken by the employer because the employee was a member of a union.’

[emphasis added]

168               The appeal in Palmer was allowed.

169               The appeal in Wilson related to the employment of journalists by The Daily Mail. Prior to 1989, the employer had negotiated the terms and conditions of employment collectively with the union. In 1989, it decided no longer to recognise the union and to deal with its employees directly on an individual basis. It therefore offered individual employment contracts to its employees. The new contracts provided for a 4.5% wage increase. The increase was not offered to those who refused to sign individual contracts. The de-recognition of the union was not directed to individual employees, and hence, could not amount to a breach of s 23(1)(a) of the UK Act. The offer of a pay increase was directed to individuals. The Court of Appeal held that it was open to the industrial tribunal to find on the evidence (as on the proper construction of its reasons, the industrial tribunal had found) that the employer had offered the 4.5% wage increase as part of an overall action, which included the de-recognition, to eliminate the power of the union, and thereby render membership pointless. The industrial tribunal had, therefore, rightly found that the employer had acted in breach of s 23(1)(a).

170               Palmer and Wilson were then appealed to the House of Lords (Associated Newspapers Ltd v Wilson and Associated British Parts v Palmer and Others [1995] 2 AC 454) and the appeals were allowed. The employers argued a new point of statutory construction on the appeals. They contended that the denial of the pay rise to the employees was an omission to act and, hence, did not amount to the taking of action within the meaning of s 23(1)(a). This argument was accepted by Lord Bridge, with whom Lords Keith and Lord Browne-Wilkinson agreed. The statutory construction point was their primary basis for allowing the appeals. Lord Lloyd and Lord Slynn disagreed with the majority view on that construction point.

171               On the question of the employer’s purpose, Lord Lloyd and Lord Slynn allowed the appeals on the primary basis that the necessary purpose of the employers had not been established. Lord Bridge and Lord Keith regarded this as a secondary basis for allowing the appeals. Lord Browne-Wilkinson doubted whether the appeals should be allowed on this basis.

172               Lord Lloyd dealt with the question in some detail. His view was directly adopted by Lord Bridge, and indirectly adopted by Lord Keith (who expressly agreed with Lord Bridge).

173               In relation to Wilson, Lord Lloyd analysed the reasons of the Industrial Tribunal and held that it made no relevant finding as to the purpose of the pay rise, as distinct from the purpose of de-recognition of the union. He then determined that there was no evidence of the necessary purpose in relation to withholding the pay rise from employees who did not sign the new contracts. His Lordship said at 484:

‘The only evidence as to the employers’ purpose in withholding the 4.5 per cent came from the group managing director, Mr Hardy. He said that he wanted as many members as possible to sign up so that everybody should know where they were. Over and over again he was asked in cross-examination whether it was not also a disguised attack on membership of the union. Over and over again he replied that it was not. He was not concerned with membership of the union; he was concerned only to get rid of collective bargaining.’

174               He later said at 484-5:

‘… the Court of Appeal was much influenced by the observations of Knox J in Discount Tobacco & Confectionery Ltd v Armitage [1995] I.C.R. 431, a decision which the court regarded as unquestionably correct. It may well have been correct on its facts. Having rejected the evidence given by Mrs Armitage’s employers, the tribunal was entitled to infer that the real reason for her dismissal was that she was a member of the union and made use of the union’s services to press her complaint. But, like Lord Bridge of Harwich, I cannot regard the case as authority for the broad proposition that membership of the union and making use of the union’s services are in some way to be equated. In my view, section 23(1)(a) was intended to protect trade union membership as such, that is to say, the right to associate as members of an independent trade union, just as section 23(1)(b) was intended to protect those taking part in trade union activities at an appropriate time. I can see no justification for reading in the words ‘or making use of the essential services of the union’ in section 23(1)(a) and still less justification for regarding trade union membership and the use of trade union services as being the same thing. They do not mean the same thing in section 23(1)(c). So why should they mean the same thing in section 23(1)(a)? I do not accept Knox J.’s view, at p. 16, that this would reduce section 23(1)(a) to vanishing point. Unions may flourish even though they are not recognised for collective bargaining. In so far as the industrial tribunal relied on the broad statement in the Armitage case in reaching their “robust” conclusion in paragraph 62 (see per Dillon L.J., at p. 110), they erred in law.

For the above reasons, which are substantially the same as those given by the majority of the Employment Appeal Tribunal [1992] I.C.R. 681, I would allow this appeal. It was for the employers under section 25(1) of the Act to show the purpose for which they took action against the applicant. This they did. There was no evidence on which the tribunal could find that the purpose was to deter the applicant from remaining a member of the union. Accordingly, the applicant has failed to show that he has a remedy under section 23(1)(a).’

175               In relation to Palmer, the employer argued that the purpose of offering a pay rise to those who signed new contracts was to achieve flexibility whereby individual merit could be rewarded. The fact that the pay rise might persuade employees to abandon union representation was only a means to that end. Lord Lloyd said at 486-7:

‘In the context of this case the distinction between means and ends is narrow and somewhat artificial. In my view, the industrial tribunal were entitled to hold that the true purpose of paying the extra to those who signed the new contracts was to persuade as many employees as possible to abandon union representation in wage negotiations.

But where does that lead? Union representation is not something to which, as individuals, they were entitled. They have the right not to have action taken against them for the purpose of deterring them from remaining members of the union. But the industrial tribunal made no finding in paragraph 10, or elsewhere, that that was the employers’ purpose. Nor would such a conclusion have been justified on the evidence. The power and the influence of the union might well be diminished if enough members opted for individual contracts. Membership of the union might thus become less attractive. Ms. Dean speaks of the union “wither[ing] on the vine:” see p. 110. But it is Parliament, not the employers, that has, in this respect, made membership of the union less attractive by repealing sections 11 to 16 of the Act of 1975.

The language of section 23(1)(a) must clearly bear the same meaning now as it did when it was first enacted as section 53 of the Act of 1975. It did not change its meaning when sections 11 to 16 of the Act were repealed. The applicants cannot, by giving section 23(1)(a) a meaning much wider than its terms justify, seek to restore rights which the unions thereby lost. In the course of giving the judgment of the Employment Appeal Tribunal Wood J. said, at p. 113:

“Prior to the repeal of sections 11 to 16 of the Employment Protection Act 1975 by section 19(b) of the Employment Act 1980, a trade union had rights against an employer and therefore in order to ensure that an employer negotiate with a trade union there was no need for an employee to have rights additional to that of membership. It seems to us therefore that the legislature could not have intended that the words of section 23(1)(a), which derive from section 53 of the Act of 1975, should include those additional rights by implication in the phrase ‘being a member’. There is no phraseology which refers to the exercising of rights of membership and in any event such rights would exist between members and not with reference to a third party – the employer.”

I agree with the reasoning. In so far as it conflicts with the broad proposition stated by Knox J in the Armitage case, I prefer the reasons of the Employment Appeal Tribunal in the instant case. There is no evidence on which the tribunal could have found that the employers’ purpose was to prevent or deter the applicants from remaining members of the union.’

176               The way in which Lord Lloyd approached the scope of the protection afforded to union membership was thus governed by the statutory history. When s 23(1)(a) was introduced there was already statutory recognition of the function of the union in collective bargaining. Consequently, it was not likely that the same function was also protected by s 23(1)(a).

177               Lord Bridge also referred to the statutory history, at 476, as follows:

‘Sections 11 to 16 of the Act of 1975 embodied a complex statutory code, the details of which do not now matter, which enabled a trade union to obtain ‘recognition’ by an employer for the purpose of collective bargaining with him on behalf of its members. But these provisions were repealed by the Employment Act 1980 and since then an employer has been at liberty to decide for himself whether or not to enter into or to continue in force an agreement with a trade union providing for collective bargaining.’

178               He then described his analysis of the circumstances of each appeal at 476 as follows:

‘Whatever the purpose of A.N. [Associated Newspapers] may have been, having given notice to terminate their house agreement with the N.U.J. [National Union of Journalists], in offering an inducement to employees to sign individual contracts before the notice expired, the only witness called by the employers before the industrial tribunal gave evidence that the management had no intention of deterring their employees from continuing as members of the N.U.J.; the industrial tribunal’s decision does not indicate that they rejected this evidence and in fact the majority of the employees have continued to be members of the N.U.J. ever since.

In Associated British Ports v Palmer it was plain that the employers were seeking by means of an attractive offer to induce their employees voluntarily to quit the union’s collective bargaining umbrella and to deal in future directly with the employers over their terms and conditions of employment, but I can see nothing in the evidence recited in the industrial tribunal’s decision to suggest that the employers were seeking to induce the employees to give up their union membership.’

179               This analysis then raised the correctness of the reliance by the Industrial Tribunal on the proposition it regarded as established in Armitage, namely, that there is no genuine distinction between membership of a union and making use of the essential services offered by a union, such as representation. His Lordship said at 478:

‘I do not question the correctness of the Employment Appeal Tribunal’s decision in the Armitage case. Once the industrial tribunal had rejected the employers’ evidence as to their reason for Mrs. Armitage’s dismissal, it was an obvious inference that she had been dismissed because the employers resented the fact that she had invited the union to intervene on her behalf. In this narrow context the reasoning of Knox J. may have been a legitimate means of refuting a particular argument advanced by counsel for the employers. But if the passage cited is held to establish as a general proposition of law that, in the context of section 23(1)(a) and section 58(1)(a) of the Act of 1978 membership of a union is to be equated with using the ‘essential’ services of that union, at best it puts an unnecessary and imprecise gloss on the statutory language, at worst it is liable to distort the meaning of these provisions which protect union membership as such.

A union which has a collective bargaining agreement with employers is in a position to offer its members the service of negotiating their terms and conditions of employment. A union which has no such agreement with employers is unable to offer its members that service, but is able to offer them other important and valuable services. Thus, it cannot be said that the service of collective bargaining is an essential union service or that membership of a union unable to offer that service is valueless or insignificant. Accordingly, it seems to me that the reasoning of Knox J. in the Armitage case could not properly be applied to the circumstances of the two cases with which we are concerned. Even if the construction put on section 23(1)(a) by the majority in National Coal Board v Ridgway [1987] I.C.R. 641 were correct, I do not think that in either of these cases the withholding by the employers from employees who did not sign individual contracts of the benefits conferred on those who did was by itself capable of supporting a finding that the employers’ purpose was to deter those in the latter group from being members of a union or to penalise them for being such members.’

180               His Lordship did not purport to consider the issue “in any detail”. He was concerned that if union membership was read to mean more than holding a union card, a gloss would be placed on the language of the section. This gloss was “unnecessary and imprecise”. However, to conclude that the construction is unnecessary is to make an assumption about the activities of the union for which members should have statutory protection. It seems to involve a value judgment unsupported by reference to the provisions of the statute. It is a value judgment which is, at least, contestable.

181               In South Africa, for instance, the Constitution provides, at s 23(5):

‘Every trade union, employers’ organisation and employer has the right to engage in collective bargaining.’

182               This section provides constitutional protection of a right of a union in South Africa to engage in collective bargaining. By so providing such protection, the South African legal system recognises that collective bargaining is a central function of unions.

183               On the question of imprecision, it should be noted that in Armitage Knox J described the relevant services provided by the union variously, and at one point as a “very important” incident of union membership. The approach adopted by Knox J was a fairly fluid and flexible approach, which was likely to be workable in a practical sense. By selecting for consideration only the concept of “essential services” Lord Bridge did not rule on the more workable descriptions used by Knox J.

184               Lord Slynn dealt first with Wilson. The reasons of the industrial tribunal showed that the purpose of de-recognising the union was to deter journalists from being union members. But as this was not directed to journalists as individuals, it could not amount to a breach of s 23(1)(a). The only conduct which could attract the section was withholding the 4.5 per cent pay increase. His Lordship said at 481:

‘In my opinion withholding an increase of salary from those who remain members of the union could amount to action forbidden by this subsection if the relevant purpose is established. In the present case at the end of the day I am not satisfied that it was so established. The aim of the derecognition was to ensure that contracts could be negotiated individually; that was achieved independently of and prior to the acceptance of the terms of the new contract and prior to the date when the appellants failed to pay the 4.5 per cent increase to those who did not sign. Collective bargaining came to an end whether all or none of the journalists signed new contracts. The employers’ case was that they required new contracts so as to make it clear what was the position after collective bargaining came to an end. Such a justification or “purpose” may, as Mr Hendy submitted, have to be looked at critically if the consequence is likely to be a reduction in union membership but in this case I do not think that one should disregard the provision of the contract that journalists could belong to a union or the fact that many continued to do so. I do not consider that there was here evidence that the employers’ purpose in paying a salary differential was to prevent or deter union membership even if derecognition in itself might make the union less attractive to members or to potential members.’

185               As to the appeal in Palmer, Lord Slynn said at 482-3:

‘In this case, too, employees retained the right to membership of a trade union and the majority of those who accepted personal contracts remained members of the union. Those who accepted the personal contract, however, lost the right to representation by a trade union in their dealings with the employers. The distinction between this case and Associated Newspapers Ltd v Wilson is that here there was no total derecognition of the union for collective bargaining purposes but employees were given a choice as to whether they retained or gave up their representation.

Like Dillon L.J., in the Court of Appeal [1994] I.C.R. 97 I do not consider that action “preventing or deterring” someone from being a member of a trade union or penalising him for doing so is limited to action taken in respect of his status as a member – the fact that he has or wants to have a union membership card. It may include action to prevent or deter him from, or action penalising him for, exercising his rights as a member of a trade union. The exercise of such rights is not necessarily included in the phrase ‘taking part in the activities’ of a trade union, words more apt to cover such activities as attending union meetings or acting as an official of the union.

In the present case, however, the right to be represented in collective bargaining by the union was a right granted contractually by the employers which could be terminated on notice. Ceasing to recognise the union was not an action taken to prevent or deter the employees from exercising their rights as members of the trade union. The fact that in Associated British Ports v. Palmer, unlike Associated Newspapers Ltd. v. Wilson, the workers had the option whether to go on being represented by the union or to accept a personal contract did not mean that those who accepted a personal contract were being prevented or deterred from exercising their union rights or penalised for doing so.

In any event it does not seem to me that, having accepted that the reason that the employers needed flexibility and more efficient conduct of their business was an honest reason, the tribunal was entitled on the evidence to say that flexibility was their “objective” rather than their “purpose”. Their purpose and their objective were to achieve flexibility; and the means to achieve it were by offering a higher salary for those who were prepared to give up union representation.’ [emphasis added]

186               His Lordship took a wider view of the operation of the concept of union membership than did Lord Bridge, Lord Keith and Lord Lloyd. In the end, however, he resolved the appeals on a factual basis. Even on his view of the meaning of union membership, in these cases the purpose established on the evidence was not the purpose of preventing or deterring the employees from being members of the union.

187               Lord Browne-Wilkinson said at 479:

‘I prefer to express no view on the membership issue also discussed by my noble and learned friend [Lord Bridge]. As at present advised I would not share his view on the issue but it is unnecessary to express any concluded view since the decision of this case does not turn on that point.’

188               The judgment of Lord Lloyd in Wilson was referred to by the Full Court in BHP v AWU in the course of an appeal from the interlocutory orders made by Gray J. The Full Court considered whether there was a serious issue to be tried that the employer had induced employees to stop being members of the union in breach of s 298M of the Act. The Court referred to Lord Lloyd’s distinction between a concern with membership of the union on the one hand, and a concern to get rid of collective bargaining on the other. The Full Court also referred to his view that the difference between means and ends is narrow and artificial. The passages referred to by the Full Court are contained within the extracts set out in pars 173 and 174 of these reasons.

189               The Full Court also referred for assistance to the following passages from the United States case of American Ship Building v Labour Board 380 US 300 (1965). The United States legislation required consideration of the motivation of the employer in its conduct towards union members, but the Court regarded the concept of union membership as involving more than the employee holding a union ticket. At pars 73 – 75 the Full Court said:

‘[73] In American Ship Building v Labor Board, Stewart J, delivering the opinion of the Court, said (at 311):

“Section 8(a)(3) prohibits discrimination in regard to tenure or other conditions of employment to discourage union membership. Under the words of the statute there must be both discrimination and a resulting discouragement of union membership. It has long been established that a finding of violation under this section will normally turn on the employer’s motivation … Thus when the employer discharges a union leader who has broken shop rules, the problem posed is to determine whether the employer has acted purely in disinterested defense of shop discipline or has sought to damage employee organization. It is likely that the discharge will naturally tend to discourage union membership in both cases, because of the loss of union leadership and the employees' suspicion of the employer's true intention. But we have consistently construed the section to leave unscathed a wide range of employer actions taken to serve legitimate business interests in some significant fashion, even though the act committed may tend to discourage union membership … Such a construction of § 8(a)(3) is essential if due protection is to be accorded the employer's right to manage his enterprise.”

[74] Stewart J went on the say (at 311 – 312):

“This is not to deny that there are some practices which are inherently so prejudicial to union interests and so devoid of significant economic justification that no specific evidence of intent to discourage union membership or other antiunion animus is required. In some cases, it may be that the employer’s conduct carries with it an inference of unlawful intention so compelling that it is justifiable to disbelieve the employer’s protestations of innocent purpose.”

[75] Stewart J added (at 313), the following:

“There was not the slightest evidence and there was no finding that the employer was actuated by a desire to discourage membership in the union as distinguished from a desire to affect the outcome of the particular negotiations in which it was involved. We recognize that the ‘union membership’ which is not to be discouraged refers to more than the payment of dues and that measures taken to discourage participation in protected union activities may be found to come within the proscription. Radio Officers' Union v. Labor Board, (1954) 347 US 17, at 39-40. However, there is nothing in the Act which gives employees the right to insist on their contract demands, free from the sort of economic disadvantage which frequently attends bargaining disputes. Therefore, we conclude that where the intention proven is merely to bring about a settlement of a labor dispute on favourable terms, no violation of § 8(a)(3) is shown.”’

[emphasis added]

190               The Full Court concluded:

‘[76] The stance taken to comparable legislation in England and the United States can illuminate our approach to the meaning of s 298M. By this approach, the essential question, one of fact, is the appropriate characterisation of the conduct of BHPIO, viewed, however, in its full context. We agree with Lord Lloyd that, in this connection, the distinction between means and ends may be too narrow and artificial. Although it is accepted by the respondent that no explicit relevant threat or promise was made, it is plain that the operation of s 298M is not so limited; that is, the inducing conduct may take another form - that is, “otherwise”, as the words in parenthesis state.’

191               The Full Court did not make a choice between what appear to be conflicting approaches to the concept of union membership. Rather, the Full Court saw the question in that case as one of fact, namely, the characterisation of the conduct of the employer. The focus of attention, and the matter to which this conclusion was directed was whether it was arguable that the conduct in question amounted to inducement under s 298M. Thus, the judgment does not advance the question of the meaning of the concept of union membership for the purposes of the present case. In any event, the appeal was determined before the European Court delivered its judgment in the Wilson and Palmer matters.

192               The Wilson and Palmer appeals had a sequel in the European Court, Case of Wilson & the National Union of Journalists, Palmer, Wyeth & the National Union of Rail, Maritime & Transport Workers; Doolan & others v. the United Kingdom (unreported, Eur Ct HR, application nos 30668/96, 30671/96 and 30678/96, Strasbourg, 2 July 2002). In this forum, the case concerned the interpretation of article 11 of the European Convention which provided:.

‘Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade union for the protection of his interests.’

193               It will be recalled that this article mirrors the terms of article 22 of the International Covenant on Civil and Political Rights to which Australia is a party.

194               The European Court described the applicants’ arguments, at par 40, as follows:

‘The applicants submitted that the right to union membership “for the protection of his interests” under Article 11 necessarily involved the rights of every employee (1) to be represented by his or her union in negotiations with the employer, and (2) not to be discriminated against for choosing to avail him- or herself of the right to be represented. In this connection, the applicants referred to the findings and recommendations of the Committee of Experts under the European Social Charter and of the ILO’s Committee on Freedom of Association (see paragraphs 32-33 and 37 above), that the right of union representation is inherent in the right of union membership (as provided for in Article 5 of the Charter and in the ILO Convention).’

[emphasis added]

The European Court then referred to the judgment of the House of Lords, at par 40, as follows:

‘However, the House of Lords’ judgment made it plain that domestic law protected only the right of union membership per se, and not any of the incidents of membership, such as collective representation in contract negotiations. Unless it could be shown that an employer acted with the intention to prevent, deter or penalise membership (per se) of a union, there was nothing to prevent the employer discriminating against an employee who chose to take advantage of one of the incidents of membership, such as collective representation.’

195               The European Court decided, at par 46 – 48, as follows:

‘46. … [I]t is of the essence of the right to join a trade union for the protection of their interests that employees should be free to instruct or permit the union to make representations to their employer or to take action in support of their interests on their behalf. If workers are prevented from so doing, their freedom to belong to a trade union, for the protection of their interests, becomes illusory. It is the role of the State to ensure that trade union members are not prevented or restrained from using their union to represent them in attempts to regulate their relations with their employers.

47. In the present case, it was open to the employers to seek to pre-empt any protest on the part of the union or their member against the imposition of limits on voluntary collective bargaining, by offering those employees who acquiesced in the termination of collective bargaining substantial pay rises, which were not provided to those who refused to sign contracts accepting the end of union representation. The corollary of this was that United Kingdom law permitted employers to treat less favourably employees who were not prepared to renounce a freedom that was an essential feature of union membership. Such conduct constituted a disincentive or restraint on the use by employees of union membership to protect their interests. However, as the House of Lords’ judgment made clear, domestic law did not prohibit the employer from offering an inducement to employees who relinquished the right to union representation, even if the aim and outcome of the exercise was to bring an end to collective bargaining and thus substantially to reduce the authority of the union, as long as the employer did not act with the purpose of preventing or deterring the individual employee simply from being a member of a trade union.

48. Under United Kingdom law at the relevant time it was, therefore, possible for an employer effectively to undermine or frustrate a trade union’s ability to strive for the protection of its members’ interests. The Court notes that this aspect of domestic law has been the subject of criticism by Social Charter’s Committee of Independent Experts and the ILO’s Committee on Freedom of Association (see paragraphs 32-33 and 37 above). It considers that, by permitting employers to use financial incentives to induce employees to surrender important union rights, the respondent State failed in its positive obligation to secure the enjoyment of the rights under Article 11 of the Convention. This failure amounted to a violation of Article 11, as regards both the applicant unions and the individual applicants.’ [emphasis added]

196               It follows from this decision that the right to join a trade union provided for by the European Convention embraces a right to have a union represent and take action in support of the interests of the particular member. In an article analysing the effect of the decision, Professor Ewing said:

‘The third important feature of the case is the holding that although Article 11 does not encompass collective bargaining, nevertheless it is of the essence of the right to join trade unions for the protection of their interests that employees “should be free to instruct or permit the union to make representations to their employ or to take action in support of their interests on their behalf”. But not only that: it is said to be “the role of the State to ensure that trade union members are not prevented or restrained from using their union to represent them in attempts to regulate their relations with their employer”. Note the two dimensions: not just the right to have the union make representations (the weaker dimension), but a right to be represented by the union in regulating relations with the employers (the strong dimension). The corollary of this positive right of two dimensions is that workers should not be penalised where they exercise their right to be represented by a trade union.’

Ewing KD, ‘The implications of Wilson and Palmer’, Industrial Law Journal, vol 32, No. 1, March 2003, pp 6-7.

197               In Australian law, the right to join a union without attracting adverse consequences is conferred by s 298L(1)(a). This section should be construed conformably with Australia’s international obligations under the Freedom of Association Convention, the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights. Those obligations extend to protecting union members from discrimination based on the actions taken by a union as an incident of the membership of the person of the union.

198               The Supreme Court of Canada has also given helpful consideration to the interrelationship between the freedom of association and the right to join a union. The Canadian Charter of Rights and Freedoms s 2(d) (the Charter) guarantees freedom of association as a ‘Fundamental Freedom’. In Alberta, legislation was passed which prohibited strikes and imposed compulsory arbitration to resolve impasses in collective bargaining in relation to the employment of public servants, fire fighters, hospital employees and police officers. The Supreme Court of Canada in Reference Re Public Service Employee Relations Act (Alta.) [1987] 1 SCR 313 had to determine whether the legislation violated the Charter guarantee of freedom of association. Dickson CJ with whom Wilson J agreed, held that the legislation did violate the guarantee of freedom of association. The majority (Beetz, McIntyre, Le Dain and La Forest JJ) held that it did not. The Chief Justice explained one issue, at 335-336, thus:

‘Second, what approach is taken to the nature of freedom of association? More specifically, has the relevant tribunal adopted what I shall refer to as a “constitutive” definition of freedom of association whereby freedom of association entails simply the freedom to combine together but does not extend to the freedom to engage in the activities for which the association was formed? Alternatively, has a wider definition been adopted to the effect that freedom of association embodies both the freedom to join together and the freedom to pursue collective activities? In this appeal, the respondent adopts the former view while the appellants adopt the latter.’

199               His Honour then explained the division of opinion on the question in Canadian case law at 338-339 as follows:

‘Canadian jurisprudence on the nature and scope of freedom of association is divided. On the one hand, the British Columbia Court of Appeal and the Federal Court of Appeal have endorsed a constitutive definition of freedom of association, concluding that collective bargaining and strike activity are not protected by freedom of association. … On the other hand, the Ontario Divisional Court, and the Saskatchewan Court of Appeal have adopted broader definitions, holding that freedom of association includes the freedom to pursue common purposes and to engage in collective activities, and is not merely the freedom to form and join associations.’

200               His Honour, at 339-340, referred to a passage in the judgment of Mahoney J (with whom Hugessen J concurred) in Public Service Alliance of Canada v The Queen [1984] 2 FC 889, 895 as representative of the narrow view. That passage reads as follows:

‘The right of freedom of association guaranteed by the Charter is the right to enter into consensual arrangements. It protects neither the objects of the association nor the means of attaining those objects.

...

I do not think it desirable to attempt to catalogue the rights and immunities inherent in a trade union's guaranteed freedom of association. Clearly, collective bargaining is, or should be, the primary means by which organized labour expects to attain its principal object: the economic betterment of its membership. However fundamental, it remains a means and, as such, the right to bargain collectively is not guaranteed by paragraph 2(d) of the Charter, which guarantees freedom of association.’

201               As representative of the wider view, his Honour, at 341, cited a passage from the judgment of Galligan J in Re Service Employees’ International Union, Local 204 and Broadway Manor Nursing Home (1983) 44 OR (2d) 392, 409. The passage reads as follows:

‘But I think that freedom of association if it is to be a meaningful freedom must include freedom to engage in conduct which is reasonably consonant with the lawful objects of an association. And I think a lawful object is any object which is not prohibited by law... .

The purpose of an association of workers in a union is clear -- it is to advance their common interests. If they are not free to take such lawful steps that they see as reasonable to advance those interests, including bargaining and striking, then as a practical matter their association is a barren and useless thing. I cannot imagine that the Charter was ever intended to guarantee the freedom of association without also guaranteeing the freedom to do that for which the association is intended. I have no hesitation in concluding that in guaranteeing workers' freedom of association the Charter also guarantees at the very least their freedom to organize, to choose their own union, to bargain and to strike.’

202               His Honour then reviewed the US authorities and summarised the position, under US law, at 347-348 as follows:

‘In summary, my understanding of the United States authorities on freedom of association and its application in the context of labour relations is this: Freedom of association is implicitly guaranteed by the First Amendment and protects the concerted pursuit of ends which are explicitly protected by the First Amendment, namely speech, assembly and petition; in the trade union context, the First Amendment’s freedom of association protects the right to organize and select representatives for collective bargaining; it also protects the activities of trade unions in respect of securing legal representation for their members; nevertheless, freedom to strike in the public sector is not protected by the implied freedom of association in the First Amendment.’

203               Next, his Honour turned to international law, at 348, as follows:

‘International law provides a fertile source of insight into the nature and scope of the freedom of association of workers. Since the close of the Second World War, the protection of the fundamental rights and freedoms of groups and individuals has become a matter of international concern. A body of treaties (or conventions) and customary norms now constitutes an international law of human rights under which the nations of the world have undertaken to adhere to the standards and principles necessary for ensuring freedom, dignity and social justice for their citizens. The Charter conforms to the spirit of this contemporary international human rights movement, and it incorporates many of the policies and prescriptions of the various international documents pertaining to human rights. The various sources of international human rights law--declarations, covenants, conventions, judicial and quasi-judicial decisions of international tribunals, customary norms--must, in my opinion, be relevant and persuasive sources for interpretation of the Charter’s provisions.’

204               The Chief Justice referred to the Universal Declaration of Human Rights G/A-Res. 217A (III) UN. Doc. A/810, (10 December 1948), the International Covenant on Economic, Social, and Cultural Rights, the International Covenant on Civil and Political Rights, and the Freedom of Association Convention. His Honour also referred to interpretations by International Labour Organisation bodies, including the Committee on Freedom of Association, the Committee of Experts, and Commissions of Inquiry. He summarised the situation, at 358-359, as follows:

‘The most salient feature of the human rights documents discussed above in the context of this case is the close relationship in each of them between the concept of freedom of association and the organization and activities of labour unions. As a party to these human rights documents, Canada is cognizant of the importance of freedom of association to trade unionism, and has undertaken as a binding international obligation to protect to some extent the associational freedoms of workers within Canada. Both of the U.N. human rights Covenants contain explicit protection of the formation and activities of trade unions subject to reasonable limits. Moreover, there is a clear consensus amongst the I.L.O. adjudicative bodies that Convention No. 87 goes beyond merely protecting the formation of labour unions and provides protection of their essential activities -- that is of collective bargaining and the freedom to strike.’

205               With this variety of views in mind, the Chief Justice proceeded to deal with the meaning of the guarantee of freedom of association in the Charter. He first rejected the constitutive approach, at 362-363, as follows: