FEDERAL COURT OF AUSTRALIA

Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (No 3) [2012] FCA 1218

Citation:

Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (No 3) [2012] FCA 1218

Parties:

CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION v BHP COAL PTY LTD

File number:

QUD 248 of 2012

Judge:

JESSUP J

Date of judgment:

7 November 2012

Corrigenda:

4 December 2012

8 November 2012

Catchwords:

INDUSTRIAL LAW applicant representing employees of the respondent in enterprise bargaining negotiations with the respondent – dismissal of employee for holding and waving allegedly offensive sign during protest where employee purported to be an official of the applicant – whether employee was dismissed because he was participating in protected industrial action – whether employee dismissed because he was officer or member of an industrial association – matters relevant to identification of officer of an industrial association – matters relevant to identification of industrial association – whether mine lodge a branch for the purposes of the Fair Work Act 2009 (Cth) – whether employee dismissed because he was participating or encouraging in lawful activity organised or promoted by an industrial association – meaning of lawful within context of s 347(b)(iii) of Fair Work Act 2009 (Cth) – whether holding and waving of sign unlawful under s 6 of Summary Offences Act 2005 (Qld) – whether employee dismissed because he was representing or advancing the views, claims or interests of an industrial association – matters relevant to identification of views, claims or interests of an industrial association – whether reinstatement should be ordered

Legislation:

Acts Interpretation Act 1901 (Cth) s 15AC

Coal Mining Safety and Health Act 1999 (Qld)

Conciliation and Arbitration Act 1904 (Cth) s 5

Conciliation and Arbitration Act 1973 (Cth)

Fair Work Act 2009 (Cth)

Fair Work (Registered Organisations) Act 2009 (Cth) ss 141, 154A, 154B, 230, 233

Fair Work (Registered Organisations) Regulations 2009 (Cth) reg 147

Summary Offences Act 2005 (Qld) s 6

Vagrants, Gaming and Other Offences Act 1931 (Qld) s 7

Cases cited:

Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Fohmsbee (1998) 83 FCR 161

Barclay v Board of Bendigo Regional Institute of Technical and Further Education (2011) 191 FCR 212

Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 290 ALR 647

Bowling v General Motors Holden Ltd (1980) 33 ALR 297

Coal Miners Industrial Union of Workers of WA, Collie v True (1959) 33 ALJR 224

Coleman v Power (2004) 220 CLR 1

CFMEU v Coal and Allied Operations Pty Ltd (1999) 140 IR 131

CFMEU v Pilbara Iron Co (Services) Pty Ltd (No 3) [2012] FCA 697

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

Independent Education Union v Geelong Grammar School [2000] FCA 557

Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (1998) 195 CLR 1

Williams v Hursey (1959) 103 CLR 30

Date of hearing:

10-12 July, 30-31 August 2012

Place:

Brisbane

Division:

Fair Work DIVISION

Category:

Catchwords

Number of paragraphs:

128

Counsel for the Applicant:

Ms C Howell

Solicitor for the Applicant:

Hall Payne Lawyers

Counsel for the Respondent:

Mr I Neil SC with Mr A Duffy

Solicitor for the Respondent:

Ashurst Australia

FEDERAL COURT OF AUSTRALIA

Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (No 3) [2012] FCA 1218

CORRIGENDUM

1.    In the reasons for judgment published 7 November 2012, in paragraph [36], second sentence, before the words “the provisions”, insert “of”.

2.    In the reasons for judgment published 7 November 2012, in paragraph [45], in the penultimate sentence, for “entry of which” substitute “entry in which”.

3.    In the reasons for judgment published 7 November 2012, in paragraph [58], in the first sentence following definition of “office”, after “the definition” insert “last”.

4.    In the reasons for judgment published 7 November 2012, in paragraph [58], in the third and sixth sentences, for “question of whether” substitute “question whether”.

5.    In the reasons for judgment published 7 November 2012, in paragraph [64], in the last sentence, for “only some” substitute “some only”.

6.    In the reasons for judgment published 7 November 2012, in paragraph [69], in the second sentence, for “question of whether” substitute “question whether”.

7.    In the reasons for judgment published 7 November 2012, in paragraph [72], in the penultimate sentence, before “some of the provisions”, insert “to”.

I certify that the preceding seven (7) numbered paragraphs is a true copy of the Corrigendum to the Reasons for Judgment herein of the Honourable Justice Jessup.

Associate:

Dated: 4 December 2012

.

FEDERAL COURT OF AUSTRALIA

Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (No 3) [2012] FCA 1218

CORRIGENDUM

1.    In the reasons for judgment published 7 November 2012, in paragraph [93], line 4, in place of “120” substitute “121”.

2.    In the reasons for judgment published 7 November 2012, in paragraph [107], line 4, in place of “seated” substitute “seat”.

3.    In the reasons for judgment published 7 November 2012, in paragraph [118], line 5, in place of “124” substitute “123”.

I certify that the preceding three (3) numbered paragraphs are a true copy of the Corrigendum to the Reasons for Judgment herein of the Honourable Justice Jessup.

Associate:

Dated: 8 November 2012

.

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

Fair Work DIVISION

QUD 248 of 2012

BETWEEN:

CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION

Applicant

AND:

BHP COAL PTY LTD

Respondent

JUDGE:

JESSUP J

DATE OF ORDER:

7 November 2012

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:

1.    The respondent reinstate Henk Doevendans to the position in which he was employed before the termination of that employment on 21 May 2012.

2.    The parties have leave to file further written submissions as to penalties, and as to any remedial or consequential orders which ought to be made in the light of the court’s reasons published this day, according to the following timetable:

(a)    the applicant, within 14 days;

(b)    the respondent, within a further 14 days;

(c)    the applicant in reply if necessary, within a further 7 days.

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

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

Fair Work Division

QUD 248 of 2012

BETWEEN:

CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION

Applicant

AND:

BHP COAL PTY LTD

Respondent

JUDGE:

JESSUP J

DATE:

7 November 2012

PLACE:

MELBOURNE

REASONS FOR JUDGMENT

1    Until the events which became controversial in the present proceeding, Henk Doevendans was employed by the respondent, BHP Coal Pty Ltd, as a machinery operator at the Saraji mine, which is owned by BHP Billiton Mitsubishi Alliance (“BMA”). On 21 May 2012, Mr Doevendans was dismissed from that employment. In this proceeding, the applicant, the Construction, Forestry, Mining and Energy Union, alleges that Mr Doevendans was dismissed in contravention of certain provisions of ss 340 and 346 of the Fair Work Act 2009 (Cth) (“the FW Act”), to which I shall turn below. At the centre of this allegation lies the proposition that the termination of Mr Doevendans’ employment was done because he was a member and an officer of, because he was participating in a lawful activity organised by, and because he was representing or advancing the views, claims and interests of, an industrial association. The applicant also claims that Mr Doevendans’ employment was terminated because he was taking industrial action that was protected under the FW Act.

The facts in outline

2    The applicant is registered as an organisation pursuant to the Fair Work (Registered Organisations) Act 2009 (Cth) (“the RO Act”). At some point which is not precisely identified, but is said to have been subsequent to approximately 1990, the applicant was formed by an amalgamation between several previously existing trade unions, one of which was the United Mine Workers’ Federation of Australia, itself the product of a previous amalgamation between the Australasian Coal and Shale Employees’ Federation and the Federated Mining Mechanics Association of Australasia. The rules of the applicant provided for the applicant to have “Divisions” established on the basis of industry or occupation. There was such a division which is relevant to the facts of the present case, namely, the Mining and Energy Division (“the Division”). The rules also provided for divisions to have “Branches along a geographic, occupational or area basis, such branches to be called ‘Divisional Branches’.” The existence of divisional branches depended upon the rules of the division concerned. In the present case, the Division did have branches established along geographic lines, the relevant one of which was the Queensland District Branch (“the Branch”). The rules of the Division provided that a branch had autonomy “in matters affecting members of the Branch only”; and they allowed branches to make rules for their internal administration, provided that they were not inconsistent with the rules of the applicant.

3    The Branch did have such rules. The “membership” rule provided that membership of the Branch meant (ie amounted to) membership of the Division and of the applicant. The Branch rules required the District Branch Executive to “take whatever steps are necessary to establish lodges of the District Branch at all workplaces in Queensland”, and one such lodge had been established at the Saraji mine (“the Lodge”). The committee of management of the branch was the District Branch Convention, “composed of one delegate from each Lodge”, together with the executive officers, central councillors and the members of the Board of Management of the Branch. Between meetings of the convention, the Branch was to be controlled and directed by the Board of Management, which was “composed of the President, Executive Vice-President, Secretary, District Central Councillors and representatives of Lodges”. The Lodge was one of nine Lodges in the Branch which were entitled, collectively, to send one representative to the Board of Management.

4    Rule 12(iii) of the rules of the Branch provided as follows:

(a)    Each Lodge shall be managed by a Committee consisting of a Chairman, Secretary, Treasurer and four members of the lodge.

(b)    The Committee shall be elected either annually or for a period not greater than (4) four years according to the ballot rule of the Division.

(c)    The President shall preside at all meetings and have both a deliberative and a casting vote.

(d)    The majority of members of the Committee, including either the lodge President or lodge secretary shall form a quorum.

(e)    All Lodge meetings shall be conducted according to the Standing Orders of the District Branch.

(f)    Each lodge shall have power to make by-laws for its own guidance and control of its members. Such by-laws shall not be in contravention of the rules of the Division or the District Branch and shall not become operative until submitted to and approved by the District Executive.

It may be noted that there was, under these rules, no position of Vice-President of a lodge committee. There was no evidence as to whether the Lodge had made by-laws establishing such a position as contemplated by r 12(iii)(f).

5    The Branch rules provided for the “powers and duties” of each of the Lodge President (not Chairman as provided in r 12(iii)(a)), Lodge Secretary and Lodge Treasurer/Secretary-Treasurer”. The rules also made the Lodge secretary the official to whom a candidate for membership was to provide his or her application; and from receipt of the form by the secretary the candidate was deemed to be a member of the Branch: r 5(i)(b) and (c). The sub-rule dealing with the powers and duties of lodge committees was very brief. It provided that the committee “shall do whatever may be necessary to ensure that the health, lives and interests of their fellow workers are to the utmost protected”. It provided for the committee to have the power “to strike a special levy to pay for Lodge expenses legitimately incurred in the conduct of Lodge business”. It provided also for the committee to have the power, with the concurrence of the lodge, “to fine any member whose conduct has been or is inconsistent with the Rules of [the applicant] or decisions of the lodge reached by majority vote” (subject to appeal to the Branch Board of Management).

6    Rule 12(viii) dealt with the “finances” of a lodge in the following terms:

(a)    Subscriptions, fines, fees, dues and levies shall be collected fortnightly by all Lodges unless provision is otherwise specifically made by agreement between the District Branch Executive and the Lodge Committee.

(b)    Lodges shall use the individual receipt method of acknowledging and recording the payment of money by members and all Lodges with a membership of twenty five or over shall adopt the cheque account method of payment of monies.

(c)    All accounts and property of the Lodge shall be held in the names of the Chairman, Secretary and Treasurer of the Lodge on behalf of the Lodge.

(d)    The Lodge Secretary shall submit an annual return to the District Secretary showing the income and expenditure of his Lodge and also send a contributions book and a receipt book for inspection by the District Branch Auditors. The return shall cover the District Branch financial year.

(e)    Each Lodge shall elect two auditors each year. The auditors shall examine the accounts of the Lodge half yearly. The auditors shall be [sic] sign the annual statement of Lodge receipts and expenditure which are prepared for the District Branch Secretary.

The subscriptions etc referred to in (a) and (b) above were not moneys payable to the lodge as such. They were, rather, payments of the kind for which provision was made in r 5(ii)(c) of the rules of the Branch:

Subscriptions, fines, fees and levies owing by a member of the Division may be paid to the Secretary of a member’s Lodge, or a person authorised by the Secretary of the member’s Lodge but to no other person or member.

7    Of potential relevance also are the following provisions of the rules of the Branch, which appear in r 12(ix), headed “Strikes”:

(a)    No lodge of this District Branch shall begin a strike before the Lodge's grievance has been considered by the District Branch Board of Management.

(b)    In every case, before a strike is begun the Board of Management shall offer to the employer or employees the option of settling the dispute by conciliatory means. If no settlement is reached by conciliation, the Board of Management shall have free power to take whatever steps are necessary having regard to the rules of the Federation and the District Branch and the Commonwealth and State industrial laws.

(c)    No lodge of the District Branch shall begin a strike unless a majority of lodge members attending the voting at a meeting called to consider the question shall vote in favour of the strike.

(d)    No general strike of the District Branch shall take place unless an aggregate District majority of members of lodges attending and voting at meetings called to consider the question shall vote in favour of the strike.

(e)    The conduct of negotiations in any dispute shall be under the direction of the District Branch Executive and the District Branch Board of Management.

(f)    In the case of a strike conducted in accordance with these rules, or a lockout by the employers, the District Executive in consultation with the Board of Management shall have power to levy members of lodges for support of the members on strike or locked out. Such levies shall not be collected unless endorsed by an aggregate District majority of members of the District Branch attending and voting at meetings called to consider the question.

8    Mr Doevendans had been employed at the Saraji mine for about 24 years, for the whole of which period he had been a member of the applicant, or of corresponding previous trade unions. De facto, and subject to certain submissions by the respondent to which I shall turn, he was the Vice-President, Production, of the Lodge, in which capacity he was a member of the committee of the Lodge, on which body he had served (either in that or in other capacities) for about 10 years. In that capacity, Mr Doevendans’ duties included overseeing all industrial disputes and resolving all mine-wide industrial issues (in each case, in conjunction with other members of the committee), recruiting new members and handling applications for membership, participating in monthly meetings of Lodge members and participating in meetings of the executive. He was regularly involved in meetings with the manager of the mine, and with senior representatives of the respondent. He was also a site safety and health representative at the mine, this being a role established pursuant to the Coal Mining Safety and Health Act 1999 (Qld). In that role, Mr Doevendans was required to investigate complaints in relation to health and safety issues, and to conduct inspections of areas of the mine where issues were raised. He had been such a representative for about three years.

9    In 2011 and 2012, the respondent and its employees were engaged in negotiations for the making of a new enterprise agreement to apply to the respondent’s operations at seven coal mines in Queensland. In about mid-2011, the employees commenced to take protected industrial action in support of their position in these negotiations. This occurred at each of the seven mines referred to. At the Saraji mine, the protected action was in the form of stoppages of work and overtime bans. Between 1 July 2011 and 6 May 2012, there were 15 whole-shift stoppages and one half-shift stoppage in which Mr Doevendans participated. He also participated in the imposition of overtime bans on a number of occasions from July 2011 to the date of the termination of his employment. Additionally, and of particular relevance to the present proceeding, there was a seven-day stoppage of work from 15 to 22 February 2012. However, Mr Doevendans himself was not rostered for work at that time.

10    From August 2011, during the longer stoppages at the Saraji mine the committee of the Lodge organised for members employed at the mine, and supporting members of the community, to participate in protests near the entrance to the mine. The protesters usually stood on one or both sides of the entrance road to the mine, along which BMA had set up water barriers about three metres back from the road. The protesters stood behind these barriers, and, by the display of signs and other means, conveyed to those who passed along the road various indications of their position in the negotiations. I shall provide more details of what the protesters were doing presently.

11    The present case is concerned with such a protest which occurred during the stoppage of work over the period 15-22 February 2012. The equipment and paraphernalia required by the protesters was taken to the protest site in a trailer purchased some time previously by the Lodge. That included tents, barbeques and signs. There were two sizes of signs: 10.9 m x 1.2 m, and 1.2 m x 1.6 m. The wording on the various signs included “Families together families forever”; “This is a community not a camp”; “BMA Charter Values Profits before people”; “BHP throwing women and children overboard for FIFO rosters = profit”; “No 7 On 7 Off”; and “BHP destroying communities and families for FIFO roster = profit”. The signs also included one as follows:

No principles

SCABS

No guts

The writing on this sign (“the scabs sign”) was in black on a white background, save that the word “SCABS” was in red. At the protest in February, there were four signs with this wording on them. According to the evidence of Mr Doevendans, the signs were usually held up by those participating in the protest whenever a car passed along the entrance road. The protesters made sure that the signs were being used, such that, if one of them put a sign down, someone else would pick it up.

12    Geoff Brick was the general manager of the Saraji mine, having held that position since 1 November 2011. During the course of the protest in February 2012, some female members of the human resources department at the mine informed him that they had felt intimidated when the scabs sign was waved at them as they drove past the protest along the entrance road to the mine. At one of the daily management team meetings held in that week, Mr Brick recalls that Greg Hamilton, the respondent’s Manager – Human Resources at the mine, reported that Mr Doevendans had been identified as having held and waved the scabs sign as part of the protest.

13    For his part, Mr Hamilton does not recall the mention of the scabs sign at a management team meeting in the period 15-22 February 2012. To his recollection, it was only in early March 2012 that he was informed by Sonia Lewis, Senior Manager – HR Operations, of the respondent, that it had come to her attention that Kirsty Taylor, Senior Human Resources Adviser at the mine, may have witnessed Mr Doevendans holding and waving the scabs sign during the February protest. She suggested that Mr Hamilton should consider investigating the allegations about Mr Doevendans’ conduct. According to Mr Brick, at the management meeting in February to which I have referred, he asked Mr Hamilton to investigate the allegations against Mr Doevendans. In his evidence, Mr Hamilton said that he could not now recall whether the idea of an investigation originated with himself, with Ms Lewis or with Mr Brick. From wherever the suggestion (or direction) of an investigation came, however, in March 2012 Mr Hamilton did investigate the allegation that Mr Doevendans had displayed and waved the scabs sign whilst participating in the protest.

14    As part of his investigation, Mr Hamilton obtained reports from solicitors engaged by the respondent to observe the conduct of the protest. Having considered those reports, Mr Hamilton formed the view that he had sufficient information to place before Mr Doevendans allegations that he had, at various times on 16, 17 and 19 February 2012, held up and waved the scabs sign at vehicles passing along the entrance road to the mine. In late March 2012, Mr Hamilton so informed Mr Brick. Mr Hamilton said that the allegations were serious, and that Mr Brick should be involved in a proposed meeting with Mr Doevendans. Mr Brick asked Mr Hamilton to draft a letter to Mr Doevendans which set out the allegations in writing. That letter was drafted, and signed by Mr Brick on 12 April 2012.

15    To the extent presently relevant, Mr Brick’s letter was as follows:

During the protest action at Saraji Mine in late February 2012, it is alleged you engaged in the following conduct:

1.    On Thursday 16 February 2012, between 4:25am and 6:55am, you were observed waving a sign that read “No principles Scabs No guts” at cars that were entering and leaving Saraji Mine. The sign was white with black writing, with the word “Scabs” written in capital letters in red.

2.    On Friday 17 February 2012, between 4:30am and 7:05am, you were observed waving a sign that read “No principles Scabs No guts” at cars that were entering and leaving Saraji Mine. The sign was white was with black writing, with the word “Scabs” written in capital letters in red.

3.    On Sunday 19 February 2012, at approximately 4:42pm, you were observed waving a sign that read “No principles Scabs No guts” at a white utility vehicle as it drove past.

4.    On Sunday 19 February 2012, at approximately 6.03pm, you were observed waving a sign that read “No principles Scabs No guts” sign.

5.    In all cases the sign was being waved in the direction of cars entering and leaving Saraji Mine, so that any person driving into and out of the mine would have seen and have to pass by the “No principles Scabs No guts” sign.

It is alleged that the conduct described above breaches the BMA Workplace Conduct Policy, BMA’s Charter Values and expected workplace behaviours.

The letter also set a time for a later meeting at which Mr Doevendans would respond to the allegations in the letter, namely, 6:00 pm on 19 April 2012.

16    On 12 April 2012 at about 10:30 am, Mr Doevendans met with Mr Brick. Present also were Mr Hamilton, and Mr Doevendans union representative, Mitch Hughes. Mr Brick opened the meeting by saying, “This will be short and sweet”. He then produced the letter to which I have referred. Mr Doevendans said, “Another one of these letters”. Mr Brick said, “We’ll give you a week to read it and think about it. We’ll meet with you on Thursday. You don’t have to say anything now.” Mr Doevendans said, “As far as I’m concerned they are all allegations anyway. We’re in EBA negotiations, we’re on protected action. What’s it got to do with you? What would you find offensive?” Mr Brick replied, “What’s written in the letter.” Mr Brick then read out the allegations in the letter. Mr Doevendans said, “There would only be one reason for that.” Mr Brick replied, “This was not part of the picket line procedure that the Union agreed to.” There followed some discussion as to the content of any such procedure as had been agreed, at the end of which, according to Mr Doevendans, Mr Brick said, “You go and consider what’s in the letter.”

17    Mr Hamilton took contemporaneous notes at the meeting which reflect in general terms Mr Doevendans’ recollection of the meeting (on which the foregoing is based), save for one addition. Consistently with Mr Doevendans’ recollection of the meeting, Mr Hamilton’s notes record that Mr Brick notified Mr Doevendans that Mr Brick was issuing him with a letter concerning his conduct during the protest at the Saraji mine and that Mr Brick wanted Mr Doevendans to go away and consider the contents of the letter in preparation for a further meeting. But Mr Hamilton’s notes also record that Mr Brick advised Mr Doevendans that he was not being singled out, and that BMA was taking similar action across other sites for similar behaviour. In response, Mr Doevendans stated that he had a right to participate in industrial action and to express his views and opinions.

18    As it happened, the meeting which had been scheduled for 19 April 2012 was not held on that day, since, on 13 April 2012, Mr Doevendans was advised by his doctor that he was unfit to work due to stress. It was not until 27 April 2012 that he returned to work.

19    Due to the unavailability of Mr Brick and Mr Hamilton, the next meeting with Mr Doevendans was held not on 27 April 2012, but on 4 May 2012. Again, Mr Doevendans was accompanied by Mr Hughes. According to Mr Doevendans’ unchallenged evidence, he then accepted that he had attended the protest in late February 2012, and that it was likely that he had held up the scabs sign. He said that the respondent was not permitted to take disciplinary action against him for his conduct at the protest. According to notes taken by Mr Hamilton of what was said at this meeting (upon which he too was not challenged), responding to the allegations set out in the letter of 12 April 2012, Mr Doevendans said that he did not believe being involved in a public event outside the mine lease gave the respondent the ability to enforce its policies and procedures. He said that it was “a victimisation case”. He said that the respondent had no ability to force its workplace policies on him outside of work. He accepted that he had held and waved the scabs sign as indicated in the letter, but that this was just one of various signs that he had held and waved during the protest. Responding to Mr Brick’s inquiry whether he thought that waving the scabs sign was offensive, Mr Doevendans said that the police came through and had a look at the sign, and they did not find it offensive. He said that, as a Lodge official, he had been told that the use of the word “scab” at work was not acceptable, but that that did not extend beyond the lease of the mine.

20    Mr Brick’s recollection of the course of the meeting of 4 May 2012 was substantially consistent with Mr Hamilton’s notes, but he also recalled that Mr Doevendans had not replied to a comment which he (Brick) made, to the effect, “Henk, I think you know in your heart that this type of behaviour is inappropriate”. According to Mr Brick, on a number of occasions during the meeting, Mr Doevendans said that he could do what he liked on the picket line, and that the rules of the respondent did not apply to him when he was on the picket line.

21    At the end of the meeting, Mr Brick said that he was going to adjourn the meeting in order to consider Mr Doevendans’ responses. He indicated that he would meet with Mr Doevendans again later that day.

22    After the meeting, Mr Brick considered the allegations made against Mr Doevendans, in the light of his responses to them. Mr Brick was satisfied that Mr Doevendans’ conduct was connected with work, intentional, deliberate, repeated, “deviant” (in the sense that Mr Doevendans admitted that he knew that the word “scab” was inappropriate in the workplace, but nevertheless deliberately and repeatedly held and waved the scabs sign), offensive, humiliating, harassing and intimidating, unacceptable as an employee of the respondent, flagrantly in violation of the charter and conduct policy of the respondent and contrary to, and not tolerated in, the culture that he (Brick) had developed at the Saraji mine. Mr Brick asked himself whether an individual that had displayed “such deliberate, intentional, repeated and blatant disregard for the charter and conduct policy could be rehabilitated into the culture” that he was developing at the mine. Mr Brick “feared that Henk Doevendans’ employment would not be able to be salvaged”.

23    After a discussion with Mr Hamilton, Mr Brick asked Mr Hamilton to draft a further letter for his signature requiring Mr Doevendans to show cause why his employment should not be terminated. That letter was prepared, and signed by Mr Brick. In the letter, Mr Brick referred to his investigation of the allegations against Mr Doevendans, and summarised Mr Doevendans’ response in the following terms:

    You admit that you were in attendance at the protest action at the Saraji Mine at various times in late February.

    You admit that during your attendances at the protest action at the Saraji Mine in late February 2012, you held or waved various signs, including a sign that read “No principles Scabs no guts”.

    You admit that use of the word ‘scab’ at work is not acceptable. You indicated that you have communicated this to CFMEU members in the past.

    You state that as the Police ‘came through’ the protest area and did not address the use of the sign that read “No principles Scabs No guts”, this means that the Police did not find the use of the sign to be offensive.

    You state that in your view, the company has no jurisdiction to enforce BMA workplace policies or procedures in relation to your conduct during the protest action at Saraji Mine, as the protest action occurred outside the boundaries of the mining lease.

In the letter, Mr Brick referred to the five allegations originally set out in his letter to Mr Doevendans of 12 April 2012, and found that each allegation had been substantiated. With respect to Mr Doevendans’ assertion that the respondent had no jurisdiction to address his conduct at the protest outside the mine lease, Mr Brick said that the workplace was not confined to the physical boundaries of the lease. He referred to a passage in the respondent’s workplace conduct policy which provided justification for that conclusion, in relation to “behaviour after work hours”. He stated that Mr Doevendans’ conduct was directly connected with his employment, and that it was immaterial that it did not occur within the physical boundaries of the lease. Mr Brick’s letter continued:

BMA, as an equal opportunity employer, is committed to providing a workplace free from discrimination, harassment, victimisation, vilification or any other form of inappropriate workplace conduct. For the following reasons, I am satisfied that the substantiated allegations about your conduct are in breach of the BMA Workplace Conduct Policy; inconsistent with the BMA Charter Values and unacceptable in the workplace:

(a)    It constitutes harassment and/or intimidation of employees who either:

(i)    choose not to be associated with a union; and/or

(ii)    attend work during periods of industrial action;

(b)    your conduct creates a potential risk to the health and safety of coal mine workers who choose to exercise their rights to attend work during periods of protected industrial action; and

(c)    your conduct fails to meet BMA’s expectation that each employee will treat others in the workplace with courtesy, dignity and respect.

In the letter, Mr Brick said that his findings were serious, and that BMA was considering taking disciplinary action against Mr Doevendans “which might include the termination of your employment”. However, before taking any action, Mr Brick gave Mr Doevendans an opportunity to consider the findings of the investigation, and his employment history with BMA, and to provide a response. Mr Doevendans was given until 4:00 pm on 11 May 2012 to provide that response, pending which time he was directed not to attend work.

24    A further meeting was held later on 4 May 2012, at which the letter referred to in the previous paragraph was handed to Mr Doevendans. Mr Doevendans’ response was to hand Mr Brick a letter to him from the Lodge, over the hand of KB Ingrey, Vice-President. The letter was dated 19 April 2012. Included in the letter was the following:

At the outset, we advise you that Mr Doevendans denies that he was engaged in any conduct which constitutes misconduct making him liable for disciplinary action. Our member agrees that he was present at the peaceful demonstration at the entrance of the Suraji [sic] mine on 16, 17, 18 and 19 February 2012. Our member agrees that it is likely that at various times on each of these days he would have been holding protest signs as part of the peaceful demonstration.

The CFMEU is greatly concerned that the workplace conduct investigation being conducted by BHP in respect of Mr Doevendans does not relate to any legitimate concerns that our member has breached BMA’s conduct policy or BHP Billiton’s Code of Practice. Rather, it is the CFMEU’s view that BHP is taking action against Mr Doevendans because:-

1.    he is a member of the CFMEU;

2.    he is the Vice-President of the Suraji [sic] Lodge of the CFMEU; and

3.    he has participated in industrial activity in connection with the present enterprise bargaining negotiations with BMA.

In addition to the above, our member has been participating in a lawful and properly authorised protest by members of the CFMEU and the community. The CFMEU has obtained all necessary permits to authorise the peaceful assembly outside the Saraji mine site. It would be unlawful for BHP to seek to terminate our member’s employment for participating in such lawful activity.

In this letter, Mr Ingrey put Mr Brick on notice that, should the respondent continue with its investigation in relation to Mr Doevendans, or take any adverse action against him, the Lodge would commence proceedings in the Federal Court of Australia without further notice. Mr Brick responded to Mr Ingrey’s letter, but it is not necessary to refer further to that response.

25    On 11 May 2012, Mr Ingrey sent a letter of response to Mr Brick’s “show cause” letter of 4 May 2012. Mr Ingrey enclosed a photograph of the protest taken on 15 February 2012, which showed protesters standing behind the water barriers, together with a number of the signs to which I have referred in para 11 above (not including the scabs sign). He said that the scabs sign was one of numerous signs used at the protest, and that it had been printed by the applicant, and brought to the protest site by the applicant’s employees. Mr Ingrey said that Mr Doevendans was the only member of the protest to have had allegations of misconduct raised against him, despite the fact that many employees of the respondent attended at the protest and, at one time or another, held the scabs sign. The letter continued:

Mr Doevendans [sic] activities during the protest are also clearly incidents of his CFMEU membership, his status as a CFMEU Official, and his participation in lawful industrial activity. The CFMEU is of the view that BHP’s disciplinary investigation against Mr Doevendans, and its threat to terminate his employment, are not related to any legitimate concerns that BHP has in respect of Mr Doevendans conduct at the protests on the dates mentioned in the allegations but rather is action motivated by the fact that Mr Doevendans:

1.    is a member of the CFMEU;

2.    is Vice-President of the Saraji Lodge of the CFMEU;

3.    he has been a prominent and active participate [sic] in lawful industrial activity undertaken by the CFMEU in connection with the present Enterprise Bargaining negotiations with BHP.

Mr Ingrey said that Mr Doevendans denied that he was engaged in conduct that was “directed at any particular individuals”. He admitted, however, that he “was likely to have been holding the sign, along with other signs, during the course of his attendance at the protest”.

26    Mr Ingrey’s letter then dealt with the respondent’s workplace conduct policy, contending that Mr Doevendans’ conduct at the protest, even if it was as alleged by the respondent, should not be regarded as a contravention of that policy. Mr Ingrey referred to “restart” meetings which had, apparently, been held upon the resumption of work after previous periods of industrial action, and at one of which representatives of the respondent’s management had said, “Whatever happened on the picket line stays on the picket line. We know you are on protected action”. Mr Ingrey pointed out that the scabs sign had been present at all previous protests during the enterprise bargaining campaign, and that no concern had been raised by the respondent in relation to the sign. The letter continued:

It is therefore confusing to the CFMEU, given BHP’s previous apparent lack of concern with employees attending the protest holding the sign, why BHP has now decided to single out the Vice President of the Saraji Lodge for disciplinary action in respect of the sign. BHP’s conduct in taken [sic] disciplinary action against Mr Doevendans is inconsistent with:

1.    statements made by BHP Pre-strip Superintendents at restart meeting; and

2.    BHP’s previous inaction regarding the signs which has [sic] been present at all protests at the Saraji Mine.

This stark inconsistency has strengthened the CFMEU’s view that BHP is taking action against Mr Doevendans because of his CFMEU membership, position and lawful industrial activity.

27    Mr Ingrey then referred to Mr Doevendans’ role, as Vice-President of the Lodge, in representing the applicant’s members and the applicant itself in respect of disputes under the existing enterprise agreement, and to his personal dispute with respect to annual and sick leave accruals. The letter referred to Mr Doevendans’ position as a site health and safety representative, and continued:

The CFMEU is also concerned that Mr Doevendans [sic] exercise of workplace rights, in his capacity as a Vice President, his personal capacity as an employee under the enterprise agreement and as a site health and safety rep, are reasons for the current disciplinary investigations and threat to terminate Mr Doevendans [sic] employment.

In our view, BHP has no basis whatsoever upon which it can take disciplinary action against Mr Doevendans. The matter is clearly out of hours conduct and it is activity which is clearly of an industrial nature.

Having addressed various mitigatory circumstances which were personal to Mr Doevendans, Mr Ingrey’s letter concluded as follows:

We remain of the view that BHP’s disciplinary investigation into Mr Doevendans is entirely unrelated to any legitimate concern about him holding the sign during the protests. If this had been the case then BHP would have been taking disciplinary action in relation to such activity long ago during this industrial campaign and many of BHP's employees at the Saraji mine who have engaged in the protected industrial action would be on similar disciplinary charges as Mr Doevendans. The CFMEU believes that the real reason for BHP’s disciplinary investigation and its threat to terminate Mr Doevendans is that:

1.    he is a prominent member of the CFMEU who holds the position of Vice President of the Saraji Lodge; and [sic]

2.    he has been prominent on behalf of the CFMEU in organising CFMEU members during the EB campaign.

3.    he has exercised a number of workplace rights.

Further, the CFMEU believes that the reason for BHP’s selective attack on Mr Doevendans is to place undue influence or pressure upon CFMEU members and officials to agree to the current BHP Enterprise Bargaining Agreement which has been put out to ballot. We also believe that it is an attempt to coerce Mr Doevendans not to continue his active role as Lodge Vice President in the Enterprise Bargaining process and also to coerce other employees to not participate in lawful industrial activity organised by the CFMEU in respect of the current Enterprise Bargaining negotiations.

28    In the days which followed, Mr Brick gave consideration to Mr Ingrey’s letter of 11 May 2012, and to Mr Doevendans’ situation generally. On 17 May 2012, Mr Hamilton advised him that he could not postpone a decision on the matter any longer. Mr Brick agreed that that was the case. Under the agreement which then existed, there were four steps, of increasing severity, that might be taken in relation to an employee for conduct which required disciplinary action. The third step was a final warning, and the fourth step was “disciplinary action, which is commensurate with the severity and/or frequency of the conduct in question. Mr Hamilton expressed the view to Mr Brick that it was appropriate to terminate Mr Doevendans’ employment. Mr Brick, however, was also giving serious consideration to action under the third step of the disciplinary process, that is to say, to the issuing of a final warning. Referring to the respondent’s “just culture decision tree” as the “JCDT”, in his affidavit read in the present case, Mr Brick said:

As I went through the JCDT, the only considerations that were in my mind as reasons why I might land on Step 4 were as follows:

(a)    Henk Doevendans had held and waved a sign with the word ‘scab’;

(b)    This was not an isolated incident, as he had held and waved the Scab Sign on four occasions over three days;

(c)    He had a choice of signs in the protest area, but deliberately and repeatedly held and waved the Scab Sign;

(d)    He admitted to the allegations about his conduct;

(e)    He acknowledged that he knew his conduct was inappropriate and contrary to the Charter and Conduct Policy;

(f)    I understood that he did not accept that he had done anything wrong; and

(g)    I doubted whether he was capable of being rehabilitated to the just culture I was developing and had developed at the Saraji Mine.

These considerations left me with the powerful impression that that termination was the only appropriate outcome. I asked myself ‘do I want an individual at Saraji Mine who has demonstrated a lack of contrition, low potential to change or modify his behaviour and who is unwilling to learn any lesson from this incident?’. My answer was ‘no. This confirmed to me that Step 4 termination rather than a Step 3 was the appropriate disciplinary outcome.

....

My decision depended on my assessment that all of the following factors were present:

(a)    Connection with work;

(b)    Use of the word ‘scab’;

(c)    Intentional behaviour. This was not an isolated case where he had accidentally picked up the Scab Sign on one occasion;

(d)    Deliberate behaviour, as he chose to hold and wave the Scab Sign in circumstances where a range of signs were available;

(e)    Repeated behaviour, as he had held and waved the Scab Sign on four occasions over each of 16, 17 and 19 February 2012;

(f)    Deviant behaviour, as he admitted that he knew the word ‘scab’ was inappropriate in the workplace but nevertheless deliberately and repeatedly held and waved the Scab Sign;

(g)    Offensive, humiliating, harassing and intimidating behaviour;

(h)    Behaviour that was unacceptable in the workplace and not tolerated by the Respondent;

(i)    Flagrant violation of the Charter and Conduct Policy;

(j)    Completely contrary to the culture I had developed and was continuing to develop at the Saraji Mine;

(k)    No contrition or acknowledgement that his behaviour was inappropriate;

(l)    His behaviour was unlikely to change and he was unlikely to be able to be rehabilitated to the culture I had developed and was continuing to develop at the Saraji Mine;

(m)    His defensive and arrogant demeanour during my meetings with him on 12 April 2012 and 4 May 2012; and

(n)    The fact that I had personally heard him admit to the allegations about his conduct. This made a powerful impression on my final decision.

If any one or more of these factors had not been present, I may have come to a different decision. For example, if it had been an isolated occasion of having held the Scab Sign on a single occasion, even if the employee had not of shown any contrition, I may not have landed on a Step 4. However, this was not the case here, as Henk Doevendans had not only failed to demonstrate any contrition, but also, his conduct was repeated and deliberate. This was not a case of mistake or accident.

29    In the result, Mr Brick decided that Mr Doevendans’ employment should be terminated. He gave effect to that decision by letter to Mr Doevendans dated 21 May 2012. He referred, in some detail, to the matters which had been raised in Mr Ingrey’s letter of 11 May 2012. Having done so, Mr Brick said:

During our meeting on 4 May 2012, you admitted that you know use of the word ‘scab’ is unacceptable in the workplace. Despite knowing that use of such a word in the workplace is inappropriate and unacceptable, you admit that you nevertheless held and waved the Scabs Sign. Your repeated deliberate use of the Scab Sign at the relevant times on each of 16, 17 and 19 February 2012 in circumstances where you admit that you knew use of the word ‘scab’ is inappropriate and unacceptable is a flagrant breach of the BMA Workplace Conduct Policy and BMA Charter Values. Accordingly, having applied the Just Culture Decision Tree, I am satisfied that your behaviour constitutes an Intentional Deviant Violation.

In the circumstances, given the serious nature of the substantiated allegations of your misconduct and that your conduct is in breach of the BMA Workplace Conduct Policy, inconsistent with the BMA Charter Values and unacceptable in the workplace, I have decided to terminate your employment with effect from today.

30    Mr Brick said that, in his decision to dismiss Mr Doevendans, the fact that he was a health and safety representative, and the Vice-President of the Lodge, “entered and operated in my mind only to the extent that I was conscious that because of his standing in these positions, any decision I made to take any disciplinary action against him would be controversial”. In other respects, he said that Mr Doevendans’ occupation of those positions, and the fact that he was engaged in industrial action or activity, did not play any part in his decision-making process.

31    One of the circumstances which influenced Mr Brick’s decision to terminate Mr Doevendans’ employment was that referred to in item (m) in the list of factors upon which his decision depended (as set out in para 28 above), namely, that he (Doevendans) displayed a “defensive and arrogant demeanour” in the meetings on 12 April and 4 May 2012. Elsewhere in that affidavit, Mr Brick referred to that demeanour in those terms, adding that, at the meeting on 12 April and the first of the two meetings on 4 May, Mr Doevendans wore sunglasses, notwithstanding that the meetings were held indoors. In his oral evidence in court, Mr Brick made it clear that Mr Doevendans’ manner was a factor which operated upon his decision to terminate his employment. He said that Mr Doevendans’ manner showed “the rejection of my authority to discipline him over his behaviour on the picket line, and his level of arrogance that essentially, he could behave the way he liked”. Mr Brick answered affirmatively a question from the court whether Mr Doevendans’ manner involved an implicit assertion that, once he was outside the lease of the mine, and operating under the umbrella of the applicant, that was something very different from operating under the umbrella of the respondent. Mr Brick said:

It made a significant impression on me, in that I am trying to develop a culture where people feel empowered and engaged to come and do their work, and feel like they’re part of a team and part of a plan and understand where they fit in that plan, and this level of behaviour was completely contrary to where I am and intend on taking the work force at Saraji.

32    As noted above, Mr Hamilton advised Mr Brick that it was appropriate to terminate Mr Doevendans’ employment. In his affidavit read in this case, Mr Hamilton said:

In conducting the investigation, providing advice and guidance to Geoff Brick and recommending to him that Henk Doevendans’ employment should be terminated, the only considerations that were in my mind were as follows:

(a)    Henk Doevendans had held and waved a sign with the word ‘scab’;

(b)    He had held and waved the Scab Sign repeatedly on four occasions over three days;

(c)    He had deliberately and repeatedly held and waved the Scab Sign;

(d)    He admitted to the allegations about his conduct;

(e)    He acknowledged that he knew his conduct was inappropriate and contrary to the Charter and Conduct Policy; and

(f)    He had told his members that use of the word ‘scab’ is unacceptable.

Mr Hamilton added that the fact that Mr Doevendans was Vice-President of the Lodge entered his mind only to the extent that he was conscious that Mr Brick was concerned about his disciplinary decision being challenged and that he wanted to make sure that his decision would not be overturned.

The applicant’s case

33    At trial, the applicant’s case proceeded according to the proposition that the termination of Mr Doevendans’ employment amounted to “adverse action” for the purposes of ss 340 and 346 of the FW Act. That was accepted by the respondent, and I would so hold (see item 1 in the table in s 342(1)). The applicant then submitted that that action was unlawful under ss 340 and 346 of the FW Act. With respect to s 340, it was said that the action was taken because Mr Mr Doevendans had exercised a “workplace right”, namely, taking protected industrial action. With respect to s 346, it was said that the action was taken because Mr Doevendans was an officer or a member of an industrial association, and/or because he had participated in a lawful activity organised by, or was representing or advancing the views, claims or interests of, an industrial association.

34    Under s 361 of the FW Act, the applicant has the benefit of a presumption that the adverse action taken against Mr Doevendans was taken for the reasons alleged by the applicant, unless the respondent proves otherwise. The respondent has accepted the burden of proving that its reasons for dismissing Mr Doevendans were not those alleged by the applicant. As will appear, there is little doubt about the reasons why the respondent did dismiss Mr Doevendans, to the extent of identifying the conduct on his part that moved the respondent to dismiss him. I shall commence by dealing with that purely factual issue in the section of my reasons which follows. I shall then turn to the much more difficult issues, which are concerned with whether Mr Doevendans’ circumstances, and the conduct for which he was dismissed, fall within the proscriptions in the statute. At that level, s 361 does not, it seems to me, have any part to play.

35    It is also important to note, in the circumstances of the present case, that, if Mr Doevendans’ dismissal was done for a combination of reasons, the applicant will succeed if one of them fell within the proscriptions in the statute: FW Act, s 360.

The reasons for Mr Doevendans’ dismissal

36    I accept the evidence of Mr Brick as to why he decided to terminate the employment of Mr Doevendans – see paras 28-31 above. His reasons, broadly, were that Mr Doevendans had held up, and waved at passing motorists, the scabs sign, which he, Brick, regarded as having the unacceptable attributes to which I have referred in para 22 above, that this was in contravention of the respondent’s policy, the provisions of which Mr Doevendans was aware, and that Mr Doevendans had demonstrated arrogance when confronted with the objections to his conduct. Having engaged in conduct which Mr Brick regarded not only as contrary to the policy, but as antagonistic to the culture which he was seeking to develop at the mine, Mr Brick ultimately came to the view that he had to dismiss Mr Doevendans. The dismissal was not a spur-of-the-moment reaction, as some dismissals are. It followed an investigation by Mr Hamilton, and a systematic consideration of the facts, organised by reference to the respondent’s procedure in such matters. Further, each stage of the procedure was substantially documented by correspondence. In all of this, there is nothing which provides a basis for doubting that Mr Brick’s reasons for acting were just as he said they were.

37    Neither is there anything in the background to the events of 15-22 February 2012 that would justify the inference that the respondent wanted to be rid of Mr Doevendans on account of his membership of the applicant, his position on the Lodge committee, or his history of union activity. There was no evidence that Mr Doevendans had been an especially troublesome union representative, for example. I accept that he was well-known to BMA management because of his position on the Lodge committee, but there was nothing in the evidence to suggest that the respondent did not accept Mr Doevendans’ role as a conventional one, representing, along with others on the committee, the applicant’s members at the mine. The mine was a heavily, and traditionally, unionised workplace, and there was no suggestion that the respondent was not content with the representative role which Mr Doevendans, and others in like positions, performed in that regard.

38    The applicant’s case that Mr Brick’s real reasons for dismissing Mr Doevendans were not as he stated was a highly inferential one. The truth of the matter was, however, that the primary facts did not favour the inference which I was invited to draw over Mr Brick’s denials. So far as I can gather from the cross-examination of Mr Brick and Mr Hamilton, the applicant would have it that Mr Brick dismissed Mr Doevendans because he wanted to make an example of him as an official of the Lodge in an environment in which the respondent was in earnest disputation with its workforce over the terms of the new enterprise agreement. Mr Brick denied that suggestion, as did Mr Hamilton. Their denials were unhesitating and convincing; and they were consistent with the evidence generally. I accept those denials.

39    The applicant also submitted that I should be reluctant to accept Mr Brick’s evidence for two particular reasons. The first was that the respondent appeared to have no difficulty with the visible presence of the scabs sign at the protest, so long as no-one was holding it, such as when it was propped against the barriers behind which the protesters were standing. I would not accept that premise: on an earlier occasion when the scabs sign had been in use, the respondent had made it clear to the Lodge or the Branch that the message conveyed by the words on the sign was not such as should be conveyed in the circumstances obtaining. The applicant’s officials concerned had made it clear that they considered that their members had the right, outside the mine lease, to convey such messages as they chose. So the matter was not resolved: the respondent objected to the scabs sign, and the Lodge knew that, while the Lodge asserted the right to use the scabs sign, and the respondent knew that. What the respondent should have done about the appearance of the scabs sign at the protest, absent a situation in which someone was actually holding it, was not the subject of attention in the applicant’s submissions. The fact that the respondent did nothing about it does not, in my view, reflect adversely upon Mr Brick’s credibility insofar as he stated his reasons for acting against a particular employee who was known to have held, and waved, the sign.

40    The second reason was that, according to written records of observations made by solicitors engaged by the respondent, the respondent did know that, in the period 15-22 February 2012, the scabs sign had been held up by other people on the protest, yet no disciplinary action had been taken against them. It was submitted on behalf of the applicant that this showed that Mr Doevendans had been selected for dismissal, the reason for which must have been something other than the mere fact that he held up the sign. However, as Mr Hamilton pointed out in his evidence, it had not been possible for the respondent to identify the other people who had held up the sign. They were identified in the solicitors’ reports by reference to their clothing (eg “a man in a straw hat”), and this was found to be insufficient to place names beside the people concerned. In this respect, it is not irrelevant that the protest was not confined to employees of the respondent. The evidence was that, over the whole of the relevant period, the only protester established to have held up the scabs sign and positively identified was Mr Doevendans. He was not, therefore, selected from a range of known people who had been observed to hold up the sign.

41    For the above reasons, I reject the applicant’s case that Mr Brick dismissed Mr Doevendans for reasons other than those given by him in his evidence. There was no inferential case, based on the objective facts as a whole, that was to any extent inconsistent with that evidence.

42    I also accept Mr Hamilton’s evidence as to his reasons for advising Mr Brick that it was appropriate to terminate the employment of Mr Doevendans. The applicant’s inferential case against Mr Hamilton was really the same as its case against Mr Brick, and I would reach the same conclusion in respect of it. There is nothing in the evidence that would provide a basis for doubting that Mr Hamilton’s reasons were as he said they were.

43    The applicant made a further submission with which it is necessary to deal at this stage. It was said that Ms Lewis, by her communications with Mr Hamilton, effectively made herself part of the decision-making process. Since she had not been called, the respondent had not done enough to discharge the burden of proof which arose under s 361 of the FW Act. I would not, however, accept the factual premise upon which this submission was based. Ms Lewis’s only role was to draw Mr Doevendans’ apparent conduct to the attention of Mr Hamilton, to suggest that an investigation be undertaken, and to inquire occasionally later as to the progress of that investigation. On the respondent’s evidence, Ms Lewis involved herself to no extent in the deliberative process undertaken by Mr Brick with the assistance of Mr Hamilton. She did not recommend dismissal, or any particular form of disciplinary outcome, and she was not required to approve of Mr Brick’s decision. I am satisfied that Ms Lewis had no input into, and no influence upon, the making of that decision.

44    So much for the bare facts. It remains to consider whether those facts are of such character as to provide a basis for the applicant’s case that Mr Doevendans’ dismissal was done in contravention of ss 340 or 346 of the FW Act.

Exercise of a workplace right

45    Relevantly, s 340 of the FW Act provides as follows:

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

(a)      because the other person:

(i)      has a workplace right; or

(ii)      has, … exercised a workplace right ….

A “workplace right” is defined in s 341(1) in terms which include the following:

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

In s 341(2), there is a list of things which constitute processes or proceedings under a workplace law or workplace instrument, the only relevant entry of which is para (c): “protected industrial action”. This rather sophisticated form of drafting produces the result in the present case (most favourably for the applicant) that Mr Doevendans had a workplace right if he were able to participate in protected industrial action; and that he exercised such a right if he did in fact participate in protected industrial action.

46    Although I was not addressed on the matter in terms, it seems to be uncontroversial that the definition of “protected industrial action” which is relevant in the present case is that set out in s 409 of the FW Act. At base, the action must be “industrial action” as defined in s 19 of that Act, namely and relevantly:

(a)    the performance of work by an employee in a manner different from that in which it is customarily performed, or the adoption of a practice in relation to work by an employee, the result of which is a restriction or limitation on, or a delay in, the performance of the work;

(b)    a ban, limitation or restriction on the performance of work by an employee or on the acceptance of or offering for work by an employee;

(c)    a failure or refusal by employees to attend for work or a failure or refusal to perform any work at all by employees who attend for work….

47    It was common ground that, in the week of 15-22 February 2012, employees of the respondent covered by the existing enterprise agreement (or most of them at least) were taking protected industrial action in the form of a strike, that is to say, a refusal to attend for work in the terms of para (c) of the definition in s 19. That was the only protected industrial action on which the applicant relied. It did not submit that the protest was industrial action. However, because he was not rostered to work in the week of 15-22 February 2012, Mr Doevendans did not fail or refuse to attend for work. He did not, therefore, participate in the protected industrial action. For the same reason, he was not “able” to participate in it. He could not, and did not, participate in protected industrial action in that week.

48    I understood so much to be accepted by the applicant. It submitted, however, that participation in the protest was an “incident” of the protected industrial action, and it did so to lay the foundation for a later submission that to have dismissed Mr Doevendans for doing something which was such an incident was to have dismissed him for participating in the industrial action as such. This submission must be rejected. It was never explained how participation in the protest by someone not rostered to work could be an incident of (presumably someone else’s) failure or refusal to attend for work. I cannot understand how such a result could be arrived at. I would reject the submission that Mr Doevendans was able to participate, or did participate, in protected industrial action at any time that was of relevance to the allegations in the case.

49    The applicant’s case under s 340 of the FW Act must, therefore, be rejected.

Member of an industrial association

50    Relevantly, s 346 of the FW Act provides as follows:

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

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

In one aspect of the applicant’s case, there was an issue as to what constitutes an “industrial association” within the meaning of this provision. However, that issue does not arise under the allegation that Mr Doevendans was dismissed because he was a member of an industrial association. It was common ground that the applicant was such an association, and that Mr Doevendans was a member of it.

51    It will be clear from my findings above that I am satisfied that Mr Doevendans was not dismissed because he was a member of the applicant. That is to say, his membership of the applicant formed no part of the reasons of Mr Brick, or of Mr Hamilton advising Mr Brick, when he was dismissed. However, it was submitted on behalf of the applicant that, if the display of the scabs sign was a reason for the dismissal (which it clearly was), and if, as was submitted, that conduct was an incident of Mr Doevendans’ membership of the applicant, the proper conclusion was that he was dismissed because of his membership, notwithstanding that neither Mr Brick nor Mr Hamilton had that circumstance in mind. This submission was based on what was said by Gray and Bromberg JJ in Barclay v Board of Bendigo Regional Institute of Technical and Further Education (2011) 191 FCR 212 at 224 [39]. The judgment of the Full Court in Barclay has, however, since been reversed – Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 290 ALR 647 – in which circumstances I do not consider that I am entitled to treat the conclusion of their Honours in the Full Court as binding on me. I say that notwithstanding that the High Court did not deal directly with the “incident of membership” point.

52    What does appear from the reasons of the High Court in Barclay, however, is that s 346(a) of the FW Act is to be read and applied according to its terms, and that the reverse onus provisions of s 361 should not be understood as casting upon the respondent the obligation of proving that its reasons were completely dissociated from the circumstance that the dismissed employee was a member of an association. In my respectful view, some of the decisions of this court since General Motors Holden Pty Ltd v Bowling (1976) 12 ALR 605, and which must now, in the light of the High Court’s recent judgment in Barclay, be regarded as doubtful, did not sufficiently observe an important distinction, as a result of which Bowling was pushed further than was justified by the terms of Mason J’s reasons in it. The distinction is between the content of the statutory prohibition, on the one hand, and the availability of an inference of a malign reason, arising on the facts of a particular case, on the other hand. The reason prohibited by the statute is the employee’s position as a member, officer, etc, of an industrial association. That does not extend to conduct engaged in as an incident of membership. On the other hand, if the court is, in a particular case, examining whether the employee was in fact dismissed because he or she was a member of an industrial association, a finding that the employer consciously took into account as a reason for the dismissal things which the employee had done with reference to his or her membership may be an element, with other relevant facts, that support an inferential case against the employer with respect to the question which is relevant under the statute, namely, whether membership of the industrial association was a reason for the dismissal.

53    In my respectful view, this understanding of the scope of s 346(a) underlay the judgment of Mason J in Bowling when his Honour’s reasons are properly understood (and subject, of course, to such qualifications as are necessary in the light of the recent High Court judgment in Barclay). In Bowling, having accepted that the shop steward was dismissed because he was a troublemaker who deliberately disrupted production, Mason J said (12 ALR at 617-618):

It is to my mind a very considerable leap forward to say that this finding in itself is a comprehensive expression of the reasons for dismissal and that they were dissociated from the circumstance that the respondent was a shop steward. No doubt this is an advance which could be made if officers of the appellant had said in evidence: We dismissed him because he was a troublemaker, because he was deliberately disrupting production and setting a bad example and we did so without regard at all to his position as a shop steward, and that evidence had been accepted. Yet this evidence was not given and, even if it had been given, there may have been a question as to its reliability. Once it is said that the appellant dismissed him because he was deliberately disrupting production and was setting a bad example it is not easy to say without more that this had nothing to do with his being a shop steward. Although the activities in question did not fall within his responsibilities as a shop steward his office gave him a status in the work force and a capacity to lead or influence other employees, a circumstance of which the appellant could not have been unaware. It would be mere surmise or speculation, unsupported by evidence, to suppose that the appellant's management, if concerned as to the bad example he was setting, divorced that consideration from the circumstance that he was a shop steward.

As I say, there are some expressions in this passage that must now be understood in the light of Barclay, but my point is that Mason J was not engrafting on to the statute an extended prohibition that a shop steward could not be dismissed because of conduct that was associated with his or her position as such: rather, his Honour was saying that, on the facts then before the court, the nature of the conduct to which the management objected had the capacity to throw light upon its reasons for the dismissal in a way which supported the inferential case being advanced by the shop steward.

54    In the present case, Mr Doevendans’ display of the scabs sign had a connection with his membership of the applicant in the sense that, absent that membership, Mr Doevendans may not have displayed the sign. Indeed, he may not have been on the protest at all. Displaying the sign was not a necessary incident of his membership, but there is a sense in which he chose to make it such an incident. That, however, is not the realm of s 346(a). I find nothing in the facts of the present case to justify, or even to provide any support for, the inference that, because Mr Doevendans displayed the scabs sign, his membership of the applicant was a reason for his dismissal. In the mind of Mr Brick (and, to the extent relevant, of Mr Hamilton), Mr Doevendans’ use of the scabs sign, as such, was objectionable. That circumstance did not feed back into some train of thought by him which was based on Mr Doevendans’ membership of the applicant. The fact of that membership was no part of Mr Brick’s reasons for dismissing Mr Doevendans.

Officer of an industrial association

55    I have set out the terms of s 346(a) of the FW Act which are relevant to this aspect of the applicant’s case (see para 50 above). Unlike the position with respect to membership of the applicant, it is controversial whether Mr Doevendans was an officer of an industrial association.

56    The term “industrial association” is defined in the FW Act as follows:

industrial association means:

(a)      an association of employees or independent contractors, or both, or an association of employers, that is registered or recognised as such an association (however described) under a workplace law; or

(b)      an association of employees, or independent contractors, or both (whether formed formally or informally), a purpose of which is the protection and promotion of their interests in matters concerning their employment, or their interests as independent contractors (as the case may be); or

(c)      an association of employers a principal purpose of which is the protection and promotion of their interests in matters concerning employment and/or independent contractors;

[including]:

(d)      a branch of such an association; and

(e)      an organisation; and

(f)     a branch of an organisation.

57    The term “officer” is defined as –

(a)     an official of the association; or

(b)     a delegate or other representative of the association.

An “official” is someone who holds an “office” in, or is an employee of, the association. Mr Doevendans was not an employee of the applicant. The word “office” is defined as follows:

(a)      an office of president, vice president, secretary or assistant secretary of the association; or

(b)      the office of a voting member of a collective body of the association, being a collective body that has power in relation to any of the following functions:

(i)      the management of the affairs of the association;

(ii)      the determination of policy for the association;

(iii)      the making, alteration or rescission of rules of the association;

(iv)      the enforcement of rules of the association, or the performance of functions in relation to the enforcement of such rules; or

(c)      an office the holder of which is, under the rules of the association, entitled to participate directly in any of the functions referred to in subparagraphs (b)(i) and (iv), other than an office the holder of which participates only in accordance with directions given by a collective body or another person for the purpose of implementing:

(i)      existing policy of the association; or

(ii)      decisions concerning the association; or

(d)      an office the holder of which is, under the rules of the association, entitled to participate directly in any of the functions referred to in subparagraphs (b)(ii) and (iii); or

(e)      the office of a person holding (whether as trustee or otherwise) property:

(i)      of the association; or

(ii)      in which the association has a beneficial interest.

58    Taking the applicant itself as the putative industrial association, it is clear that Mr Doevendans did not hold an office in the applicant within the meaning of the definition set out above. The applicant did not submit otherwise. That leaves the question of whether Mr Doevendans was a “delegate or other representative” of the applicant within the meaning of para (b) of the definition of “officer”. In the light of the provisions of the rules to which I have referred at paras 2-7 above, I could not find that Mr Doevendans was a delegate or representative of the applicant at the general, or ongoing, level. By that I mean that he was not a delegate or representative by reason of powers, functions, authorities or roles given to him by the rules. But that leaves the question of whether he was a delegate or representative ad hoc, as the result of powers or functions invested in him or entrusted to him by some person or body who or which had the authority to do so. There was no evidence of any such circumstance in terms, but, if the facts were consistent with the applicant knowing that Mr Doevendans was exercising such powers or functions, and acquiescing in the situation, it might yet be held that he was a delegate or representative. Here it is important to note the facts which provided the context for the controversy in the present case. On any view, there was a serious campaign to have the respondent agree to a new enterprise agreement. That provided not only the more general context for the protest in which the respondent found some of Mr Doevendans’ actions unacceptable, but also the background landscape which extended into 2011 – well before Mr Brick had become manager of the mine. If the applicant was to be the relevant party to any such new agreement if and when made, it might be possible to say that Mr Doevendans was, relevantly, its delegate or representative.

59    That appears, however, not to be the case under the FW Act. It was common ground that the new enterprise agreement towards which the respondent and its employees were negotiating would, if the negotiations produced a successful outcome, be made under s 172(2)(a) of the FW Act. That is to say, it would be made between the respondent and its employees. My attention was not drawn to any provision of the FW Act which would, in any circumstances arguably relevant to the present case, have the potential to yield an agreement between the respondent and the applicant. Assuming, which also appears to be common ground, that the applicant was a bargaining representative in the negotiations, it might, after any agreement had been made, give a notice that would have the effect that the agreement, if approved, “covered” it: see FW Act, ss 183 and 201(2). However, by no conceivable operation of the relevant provisions of the FW Act might it be said that, in participating in the protest in support of the employees’ claim in the negotiations, Mr Doevendans was acting as the delegate or the representative of the applicant. If anything, in its negotiations with the respondent, the applicant was the representative of him and the other employees.

60    I find, therefore, that Mr Doevendans was not an officer of the applicant for the purposes of s 346(a) of the FW Act.

61    To the extent that the Branch, as a branch, falls within the definition of “industrial association” in the FW Act, I would make the same finding, for the same reasons, in relation to it.

62    The applicant next submitted that Mr Doevendans was an officer of the Lodge, and that that made him an officer of an industrial association. This was put two ways: first, that the Lodge was an industrial association in its own right, and secondly, that the Lodge was a branch of the applicant within the meaning of para (f) of the definition of “industrial association” in the FW Act.

63    In the light of the provisions of the rules to which I have referred, the submission that the Lodge was an industrial association in its own right (ie under para (b) of the definition) must be rejected. The Lodge was, at the highest, an internally-organised section of the membership of the applicant, within the Branch. It did not constitute an association in its own right: Williams v Hursey (1959) 103 CLR 30 at 54-55.

64    Less clear is the answer to the question whether the Lodge was a branch of the applicant, and therefore an industrial association under para (f) of the definition. The word “branch” had been used in the Conciliation and Arbitration Act 1904 (Cth) (“the 1904 Act”) since its introduction, but was never defined by that Act. Nonetheless, particularly with respect to the provisions of the 1904 Act which provided for the registration of organisations and the regulation of their affairs, the concept of the branch was ubiquitous. The same was true of the corresponding provisions of the Industrial Relations Act 1988 (Cth) (“the IR Act”) which have, modified as required from time to time, maintained their presence in the RO Act (which is the re-named IR Act). A survey of the treatment of the branch of an organisation by the RO Act would fill a small volume. It will be sufficient to refer to only some of the relevant provisions.

65    Under s 141(1)(b) of the RO Act, the rules of an organisation must provide for –

(i)    the powers and duties of the committees of the organisation and its branches, and the powers and duties of holders of offices in the organisation and its branches; and

(ii)    the manner of summoning meetings of members of the organisation and its branches, and meetings of the committees of the organisation and its branches; and

(iii)    the removal of holders of offices in the organisation and its branches; and

(iv)    the control of committees of the organisation and its branches respectively by the members of the organisation and branches; and

….

(xii)    the keeping of a register of the members, arranged, where there are branches of the organisation, according to branches ….

Subdivision BA of Div 4 of Pt 2 of Ch 5 of the RO Act is headed “Branches of Organisations”, and s 154A provides that –

The rules of an organisation may provide for the autonomy of a branch in matters affecting members of the branch only and matters concerning the participation of the branch in a State workplace relations system.

As noted above, the rules of the Division did so provide. Section 154B deals with the subject of branch funds.

66    Part 2 of Ch 8 of the RO Act is concerned with the records to be kept and lodged by organisations. Under s 230(1), an organisation must keep records which include –

(a)    a register of its members, showing the name and postal address of each member and showing whether the member became a member under an agreement entered into under rules made under subsection 151(1);

(b)    a list of the offices in the organisation and each branch of the organisation;

….

(d)    such other records as are prescribed.

Under reg 147 of the Fair Work (Registered Organisations) Regulations 2009 (“the RO Regulations”), records prescribed under s 230(1)(d) include “a record of the name of each branch of the organisation”. By s 233(1)(b) of the RO Act, each year an organisation must lodge with Fair Work Australia (“FWA”) a copy of the records required to be kept under paras (b), (c) and (d) of s 230(1). By s 349:

A list of the officers of an organisation or a branch of an organisation lodged with FWA on behalf of the organisation, or a copy of any such list certified by the General Manager, is evidence that the persons named in the list were, on the day when the list was lodged, officers of the organisation or branch.

67    In the light of these provisions, it is clear why neither the RO Act nor the FW Act contains a definition of “branch”. Rather than adopt an inflexible and prescriptive approach such as would be implicit in the enactment of a definition, the legislature opted to make it a matter for organisations themselves to identify their branches, if any. The present is not the occasion to confront issues where an organisation might seek, in effect, to bypass the detailed provisions of the legislation with respect to branches by establishing internal components that were not so described, because there is no suggestion that the applicant has done so. Neither is it the occasion to consider whether a division of the applicant might be a branch for the purposes of the RO Act, because the only question which arises is whether the Lodge was a branch. But I do take the view that, at least in the context of the present dispute, where an organisation has structured itself by reference to branches, so described, and, I would infer, has lodged the returns required by the RO Act consistently with that structure, the components which the rules of such an organisation describe as branches, and only such components, should be treated as branches of the organisation for the purposes of the definition of “industrial association” in the FW Act.

68    Assuming, as I must, that the applicant complied with its obligation under reg 147 of the RO Regulations, the applicant must have a record of the name of each of its branches. If its case that the Lodge was a branch is to be taken seriously, one would have expected such a record, showing the Lodge by name, to have been put forward in evidence. That was not done. By contrast, the rules of the Division, which were tendered by the applicant, named eight branches, including the Branch. The Lodge was not named. Although those rules provided for the General Council of the Division to form branches from time to time, there was neither evidence nor suggestion that the Lodge had ever been formed as a branch. The contention that the Lodge might be considered to be a branch was advanced wholly as a matter of submission. It lacked any foundation in the treatment of branches of organisations in the governing legislation or in the facts of the case. Uninstructed by authority, I would have no hesitation in rejecting it.

69    However, it was submitted on behalf of the applicant that the question is covered by the authority of CFMEU v Coal and Allied Operations Pty Ltd (1999) 140 IR 131. That case concerned the applicant itself, and, amongst other things, the question of whether disciplinary action taken by an employer against certain employees was in breach of s 298K of the Workplace Relations Act 1996 (Cth) (“the WR Act”) (which was the re-named IR Act). The “prohibited reason” upon which reliance was placed was that the employees in question had absented themselves from work without leave, that absence being “for the purpose of carrying out duties or exercising rights as officer[s] of an industrial association”: s 289L(1)(m)(i) of the WR Act. An “industrial association” was defined to include a branch of such an association, and it was common ground that the applicant itself was such an association. In that context, the question arose whether two lodges established in a branch (not the Branch) of the applicant were branches of the applicant. Following Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Fohmsbee (1998) 83 FCR 161, Branson J held that they were.

70    In Fohmsbee, the (presently relevant) question was whether the Printing Division of an organisation formed by an earlier amalgamation of unions including one which represented workers in the printing trades was a “branch” of the amalgamated body for the purposes of the court’s jurisdiction to hold an inquiry into an election in that division. The Full Court held that it was. Northrop J said (at 175-176):

In the present case the words “branch of an organisation” contained in the definition of “office” in the Act is used in the sense of a collective noun which although singular in form is used with a plural implication. The word “branch” is not used as identifying an entity or body. It is used to describe a group of members of an organisation which under the rules of the organisation or other lawful authority are formed together for the better management of the affairs and objects of the organisation within the bounds of the authority conferred upon that group. There is much of interest in the development of this concept in the judgment of Smithers J in Allen v Townsend (1977) 31 FLR 431 at 437-441. The position is encapsulated in a passage (at 440-441):

It is relevant to observe that in the way the members of the branch who are also members of the federation are joined together they are at once in a legal relationship with all the members of the organisation but also in a legal relationship with each other and that latter relationship is different and separate from the relationship that they have with the members of the organisation generally. In their relationship to each other as members of the branch they constitute a group empowered by the rules to govern and discipline themselves by the provisions of their own set of branch rules and to take steps to promote the objects of the federation. It is to be observed also that in any discussion of this subject, reference to conduct, as being conduct ‘of the branch’ or ‘its’ conduct is commonplace. This nomenclature reflects the reality that within the organization and as an agency thereof the group of members in the branch has a capacity as such to conduct business affairs of the federation. The capacity of the branch to operate as an instrument of the federation ,both in administering its affairs and in engaging in conduct of various but well-known kinds, including activity in business affairs to promote the interests of its members and the federation, is not to be doubted. There is a large measure of control in federal council of branch policy and action. But the existence of the branch and its power and duty, subject to the rules, to conduct affairs designed to promote the objects of the federation are essential features of the federation as established by the rules.

With the necessary adaptation of Organisation and New South Wales Region – Printing Division, this passage has application to the facts of this case.

Madgwick J agreed with Northrop J, and added (at 187):

[I]t seems to me that whether a body within an organisation is a “branch” may very well depend on matters of degree. Ephemeral and ad hoc, or insufficiently clearly delimited, collections of union members may not warrant the appellation. Neither may mere divisions of the membership unaccompanied by some substantial power of independent action or some substantial degree of internal self-government. It may be regrettable that such an important legislative concept depends upon matters such as these upon which … opinions may readily differ. Nevertheless, in my view, it is inescapable that the concept does so depend.

Wilcox J said (at 180):

A branch of an industrial organisation is simply a section of the total membership of the organisation, locally organised, under the organisation's rules, for the sake of convenience: see Williams v Hursey (1959) 103 CLR 30 at 55, per Fullagar J. There is no magic in the title "branch". I see no reason why a locally organised section of the membership, even that part of the membership that follows callings falling within the ambit of a particular Division of the organisation, resident within a geographic area called a "Region", cannot properly be described as a "branch" of the organisation for the purposes of the definition of "office". That definition should not be narrowly construed. As this case demonstrates, the definition is critical to the Court's ability to inquire into allegedly irregular elections. It is also critical to the application of Division 4 of Part IX of the Workplace Relations Act, dealing with the conduct of elections. So far as is possible, determination of the important question whether a particular entity constitutes a "breach" [sic] of an organisation ought not be allowed to depend upon matters of degree upon which opinions may readily differ, such as the entity's degree of independent governance and management of its financial affairs.

71    Extracting the presently binding proposition, if any, from the three judgments in Fohmsbee is not, with respect, a simple matter. Northrop J’s conclusions were, broadly, twofold: first, that a branch of an organisation was not, of itself, an entity or body; and secondly, that the Printing Division with which the court was concerned was such as might be described in the terms used by Smithers J in Allen v Townsend. As to the latter, it seems to me that Smithers J’s observations were based entirely upon a reading of the rules of the organisation in the case before him, and that Northrop J’s application of those observations can have been no more than an assessment of the situation which arose under the relevant rules in Fohmsbee. There are many aspects of Smithers J’s judgment (to the extent that it was adopted by Northrop J) that could not have been intended as generalisations about branches abstracted from the rules of the organisation concerned. It could not, in my view, be contended that Northrop J intended that either his or Smithers J’s reasons should stand as a series of indicia of what constitutes a branch, or of criteria absent which a branch ought not to be recognised. As I read Northrop J’s reasons, the only binding conclusion to be derived therefrom is that the Printing Division of the organisation concerned was, because of the terms of the rules of that organisation, a branch.

72    That much at least must be taken as the ratio decidendi of Fohmsbee, since Madgwick J agreed with Northrop J. But does the ratio go further? In important respects, the reasons of Madgwick J were, as I read them, directly inconsistent with those of Wilcox J. In the view of Madgwick J, whether an internal component of an organisation was a branch might very well depend on “matters of degree”. Wilcox J, by contrast, said that the question “ought not to be allowed to depend on matters of degree” such as the very aspects (independence of governance and management) to which Madgwick J referred as potential indicia. Wilcox J opined that the definition of “office” should not be “narrowly construed”. But that view does not, in my respectful opinion, add greatly to an understanding of what is required for a component to be a “branch” for the purposes of the definition of “industrial association” in the FW Act. I would also proffer the view, with respect, that Wilcox J’s observation that there was no “magic” in the title “branch” did, and would if repeated today, do little justice to the long-established, detailed, regulatory regime with which registered organisations must comply, some of the provisions of which I have already referred. I would not speak of magic, but I would, uninstructed by binding authority, take the view that the term “branch” was and is one of art under the legislation.

73    That brings me back to the judgment of Branson J in Coal and Allied. Her Honour provided some insight into how the rules of the branch of the applicant which was relevant on the facts before her dealt with the subject of lodges. Her Honour said that “the Branch Rules provide for the Northern District Branch Executive ‘to establish Lodges of the District Branch at all collieries in the Northern District’” (140 IR at 155 [84]), and –

The Branch Rules vest the management of each Lodge in a Committee “consisting of a President, Secretary/Treasurer and at least three other members (r11(ii)(a))”. The duties of Lodge Committees are to –

“see that the health and lives of their fellow workmen are protected to the utmost and ... deal with all matters as [sic] affecting the interest of the Lodge.” (r11(vi)).

(140 IR at 155 [88]). From this her Honour concluded that (140 IR at 155 [85]) –

the Mining and Energy Rules and the Branch Rules do give Lodges of the Northern District Branch sufficient power of independent action, and sufficient degree of internal self-government to impart to them the character of branches as that term was elucidated by the Full Court in Fohmsbee’s Case.

It is, with respect, not apparent to me that the Full Court in Fohmsbee elucidated the character of branches of organisations by reference to the extent of their powers of “independent action” or of their “degree of internal self-government”. Rather, I would read Fohmsbee as allowing for a very plastic concept of a branch, and as having laid down no criteria at all.

74    However those reservations may be, I could not find that there was no relevant distinction between the rules which were before Branson J and the rules of the Branch in the present case, insofar as each deal with the subject of lodges. As mentioned above, her Honour said very little as to the content of the rules before her, and the applicant has not – as it might have – placed those rules into evidence before me. Particularly with respect to strikes (an activity, perhaps, close to the centre of a trade union’s conventional sphere of concern) the rules of the Branch gave the Lodge very little scope for “independent action”. On the other hand, the rules did seem to contemplate that the members of the Lodge might, by majority, make decisions which were then binding on all of them. The power to strike a special levy for Lodge expenses, and to fine a member who had not complied with a majority decision, also bespeak a certain degree of “internal self-government”. Ultimately, however, the judgment in Coal and Allied was made on the facts of that case and, importantly, the rules of the branch concerned. As I have said, I have not had the advantage of comparing those rules with the rules now before the court.

75    For the reasons I have given, I do not believe that I am bound by Fohmsbee or by Coal and Allied to hold that the Lodge was a branch of the applicant. Neither, with respect, am I persuaded by the judgments in those cases that I should do so. Returning to the point at which I otherwise left the question in para 68 above, I would hold that the Lodge was not a branch of the applicant. Rather, I would regard the Lodge more as a local grouping of members of the applicant through which those members might participate more effectively in the affairs of the Branch, and to give collective expression to the immediate interests, concerns and views of members of the applicant who worked in the area concerned. These things were done, however, within the Branch and subject to the rules, and to the governing organs of the Branch, rather than by way of constituting the Lodge as a branch in its own right.

76    For the above reasons, I would hold that the Lodge was not an industrial association, either because it was such an association in its own right or because it was a branch of the applicant. It follows that Mr Doevendans was not an officer of an industrial association, even if his position otherwise fitted the definition of “office” apropos the Lodge.

77    For the sake of completeness, I shall also consider a submission made on behalf of the respondent that, even if the Lodge were properly to be regarded as an industrial association, Mr Doevendans did not occupy an office in it. The position to which Mr Doevendans had been elected was Vice-President, Production. Under the only relevant rules which were placed before the court, no such position existed. The applicant’s response to that circumstance was as follows:

The position of Vice President is an elected member of the Executive of the Saraji Mine Lodge. It matters not that the Vice President is not expressly mentioned in the Divisional Rules. What matters is that the Position of Vice President is an elected member of the Executive of the Lodge. The Lodge is a Branch of the Association. The Lodge has had such an elected position since at least the mid 1990s. Although no records are available from that time, it may safely [be] inferred that the Lodge configured its Executive to include the two Vice President positions as elected offices.

Assuming that what was here referred to as the “executive” of the Lodge was an intended reference to the Lodge committee, I cannot appreciate why “it matters not” that the position of Vice-President was not mentioned in the rules. This was not a case in which Mr Doevendans, having been elected as one of the four general members of the committee, was then, by administrative action, given the working title of Vice-President. It was made quite clear in the evidence that he was elected to the ostensible office of Vice-President in terms. But there was no such office. I could not, therefore, find that he held an office within the terms of para (a) of the definition of “office” in the FW Act. Neither, because of the absence of any reference in the rules to the position to which he was ostensibly elected, was there another paragraph of that definition which would work to the advantage of the applicant on the present occasion.

78    That leaves the question whether Mr Doevendans would have been an officer of the Lodge in the sense of being a “delegate or other representative” thereof. Because of the deficiency in the rules to which I have referred, I do not think that Mr Doevendans might have been regarded as an ongoing delegate or representative in the general sense. But if the Lodge – ie the members of the applicant who made up the Lodge – chose to have him perform duties on their behalf or to be their representative or spokesman, I think it would have been appropriate to regard him as their delegate or representative in relevant matters. It appears from his evidence (to which I have referred in para 8 above) that he did perform such duties from time to time. Had the Lodge been an industrial association, therefore, I would have been prepared to find that Mr Doevendans was a delegate or other representative of it, and was an officer of it for the purposes of s 346(a) of the FW Act.

79    That brings me back to the reasons for Mr Doevendans’ dismissal. In point of fact, Mr Brick understood Mr Doevendans to be a member of the committee, and a Vice-President, of the Lodge. He assumed as much when he was giving consideration to the disciplinary action that should be taken against Mr Doevendans. The point, which I have upheld, that Mr Doevendans was not an officer of an “industrial association” is a purely legal one, and was far from Mr Brick’s radar at the time that he made the decision which has become controversial in this case. So far as Mr Brick and Mr Hamilton were concerned, Mr Doevendans was on the committee of the Lodge, and represented the members of the Lodge, in their dealings with the respondent, in that capacity.

80    Thus it is possible to examine the reasons for Mr Brick’s decision to dismiss Mr Doevendans unembarrassed by the true legal position as to the status of the Lodge. At this level, as with the position apropos membership of the applicant, I am satisfied that Mr Doevendans’ assumed position as an officer of the Lodge was not a reason for his dismissal, in the thinking either of Mr Brick or of Mr Hamilton. I accept Mr Brick’s evidence that he took Mr Doevendans’ position into account only to the extent that it made it the more likely that his decision would be challenged, and that he had to be, therefore, especially sure of his ground. There was nothing in the facts of the case that was inconsistent with that evidence. Here I reiterate what I said at paras 36-41 above. Mr Doevendans was not dismissed to make an example of him, or for any reason associated with his assumed position in the Lodge. He was dismissed for the reasons stated by Mr Brick in his evidence.

81    I would add only the following note about the negotiations for the new enterprise agreement, which provided the immediate context for the protected action and the protest. Although, as I have said, the agreement would be made as between the respondent and its employees, the evidence suggests that the negotiations were being conducted at State level. On the union side, officers of the Branch were involved in the negotiations. There is nothing in the evidence to suggest that the Lodge, or Lodge officials, was or were in the forefront of the negotiations. Mr Doevendans gave no evidence that he had any presently relevant role in those negotiations. Even if, as the applicant suggested in its case in court, the negotiations were protracted and hard-fought, the respondent would have had no basis for perceiving Mr Doevendans to be the point of resistance standing between itself and a successful outcome.

82    For the above reasons, I find that Mr Doevendans was not an officer of an industrial association. The relevant decision-maker assumed that he was, but that assumed status was no part of his reasons for dismissing Mr Doevendans. To the extent that it is based on the “officer” aspect of s 346(a) of the FW Act, then, the applicant’s case must be rejected.

Participation in lawful activity organised by industrial association

83    Here the applicant relies upon s 346(b) of the FW Act, which provides –

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

….

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

The applicant relies on s 347(b)(iii), and, for reasons which will become apparent, it is appropriate at this stage to note also the terms of subpara (ii) of para (b):

A person engages in industrial activity if the person:

….

(b)    does, or does not:

….

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

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

84    The applicant’s case was that Mr Doevendans was dismissed because he participated in a lawful activity organised or promoted by an industrial association. The “activity” was the protest, and Mr Doevendans’ participation included his conduct in displaying the scabs sign to passing motorists. If he was dismissed for so displaying the scabs sign, on the applicant’s case he was dismissed for participating in such an activity. If that was the extent of the matter, the applicant would, on the findings I have made above, be entitled to succeed. However, the respondent has raised a number of issues which will require consideration. They are not free of difficulty.

85    The respondent says first that the “activity” should be treated as the display of the scabs sign rather than the more general project of the protest itself. It says that the display of the sign was not lawful, in respects to which I shall turn presently, and that the activity itself therefore fell outside the terms of s 347(b)(iii). I would not accept that submission. No doubt the display of the sign, considered in isolation, could be seen as an “activity”, but the general protest was also on any view an activity in the statutory sense. If there is a reasonably available characterisation of the events which falls within the statute, the respondent’s reason for dismissing Mr Doevendans must be considered by reference to that characterisation. On the facts of the present case, I would hold that the protest was the relevant activity, and that Mr Doevendans’ display of the scabs sign was conduct on his part by way of participation in that activity.

86    The respondent’s next point was that the conduct of Mr Doevendans itself was unlawful, thereby precluding the applicant from invoking s 347(b)(iii) in relevant respects. The applicant joins issue on the unlawfulness aspect, and I shall return to it. However, it also submits that, even if the form of participation chosen by Mr Doevendans was unlawful, the provision would still apply because it is concerned with the lawfulness of the activity, not the participation. It is not as though the adverb “lawfully” stood at the start of sub-para (iii). Rather, the critical word is used as an adjective apropos the activity. If Mr Doevendans were dismissed for a few, or even many, isolated unlawful acts, he would still have the protection of the statute so long as the activity itself were a lawful one. Purely as a matter of syntax, this is an attractive submission. Is it, however, the way s 347(b)(iii) should be construed?

87    Although s 347(b)(ii) and (iii) were new provisions upon the enactment of the FW Act in 2009, they had an antecedent of sorts in para (f) of s 5(1) of the 1904 Act, introduced by the Conciliation and Arbitration Act 1973 (Cth) (“the 1973 Act”). The government at the time had introduced an amendment to the Bill which led to the 1973 Act, which would have proscribed the dismissal (etc) of an employee because he or she –

… being an officer delegate or member of an organization, has done, or proposes to do, an act or thing, in an industrial establishment or elsewhere, for the purpose of furthering or protecting the industrial interests of the organization or of its members, being an act or thing done within the limits of authority expressly or impliedly conferred on him by the organization.

(Commonwealth, Parliamentary Debates, House of Representatives, 20 September 1973, 1387 (Gordon Scholes, The Chairman)).

That amendment was, however, defeated in the Senate, for reasons which Senator Greenwood stated as follows:

That is a very wide provision. Its width is indicated if we take account of the 2 changes which the Opposition suggests that the Senate should accept. There is nothing in the Bill as put before us which requires the act or thing to be done to be an act or thing which is lawful.

(Commonwealth, Parliamentary Debates, Senate, 16 October 1973, 1224 (Senator Greenwood)).

The Senate introduced, and the House of Representatives later accepted, a provision which introduced a new para (f) into s 5(1) as follows:

… being an officer, delegate or member of an organization, has done, or proposes to do, and act or thing which is lawful for the purpose of furthering or protecting the industrial interests of the organization or its members, being an act or thing done within the limits of authority expressly conferred on him by the organization in accordance with the rules of the organization.

Over the ensuing 36 years or so, drafting amendments were made to this provision, but s 793(1)(o) of the WR Act, upon its repeal in 2009, remained faithful to the provision introduced in 1973 in that it required the “act or thing” for the doing of which the employee was dismissed (etc) to be lawful.

88    Although s 347(b)(ii) and (iii) of the FW Act cover much of the same ground as did s 793(1)(o) of the WR Act and its precursors, they are not coterminous with them. Unlike the earlier provision, they are part of a regime of provisions where the requirement of lawfulness is tied specifically to the activity as a whole: see also paras (c) and (d) of s 347. The section represents a measure in the nature of law reform, not merely by way of drafting or consolidation. The construction of s 347(b)(iii) is not, in my view, governed by s 15AC of the Acts Interpretation Act 1901 (Cth). In particular, there appears to have been a conscious decision by the legislature to depart from the pre-existing formula that required that the conduct for which the employee was dismissed (etc) be lawful in favour of one which required only that the activity of which the conduct constituted a form of participation be lawful.

89    The impression, which one derives from the language of s 347 itself, that the protections available under it are more comprehensive than those for which the earlier section provided is, if anything, confirmed by what the responsible Minister said in her Second Reading Speech for the Bill which became the FW Act:

The bill incorporates the current provisions relating to freedom of association, unlawful termination and other miscellaneous protections into a streamlined and easy-to-follow part titled ‘General protections’. In doing so, the bill provides more comprehensive protections for workers in some situations.

The bill’s general protections ensure that employees remain free to choose to be represented by a union, [sic] provide more comprehensive protections for those participating in collective activities such as representing other employees or bargaining ....

(Commonwealth, Parliamentary Debates, House of Representatives, 25 November 2008, 11193 (Minister Gillard)).

90    In the view I take, s 347(b)(iii) requires only that the activity be lawful. In the present case, the respondent advanced no serious submission that the protest at the entrance to the Saraji mine was not lawful. I would hold that it was lawful, and that the applicant is, therefore, entitled to rely on this provision.

91    I propose to deal also with the respondent’s submission that the display of the scabs sign by Mr Doevendans was not lawful. The respondent had two bases for that submission. The first was s 6 of the Summary Offences Act 2005 (Qld) (“the SO Act”):

(1)    A person must not commit a public nuisance offence.

(2)    A person commits a public nuisance offence if—

(a)    the person behaves in—

(i) a disorderly way; or

(ii) an offensive way; or

(iii) a threatening way; or

(iv) a violent way; and

(b)    the person’s behaviour interferes, or is likely to interfere, with the peaceful passage through, or enjoyment of, a public place by a member of the public.

(3)    Without limiting subsection (2)—

(a)    a person behaves in an offensive way if the person uses offensive, obscene, indecent or abusive language …

The respondent submitted that Mr Doevendans, in holding up the scabs sign, behaved in an offensive way under s 6(2)(a)(ii), and that his offensive behaviour interfered, or was likely to interfere, with the peaceful passage through, or enjoyment of, the road adjacent to the protest by a member of the public under s 6(2)(b). The respondent submitted that it was offensive to describe persons who chose to attend work during a period of industrial action as scabs without principles or guts. It relied upon the primary operation of s 6(2)(a)(ii) and, to the extent necessary, upon the elaboration in s 6(3).

92    There seems very little doubt as to the relevant connotation of the word “scab”. In his affidavit of 25 June 2012, Mr Hamilton said:

My understanding is that the word ‘scab’ is used as a derogatory and highly offensive term. I understand that the word ‘scab’ is used to describe individuals who are either not members of a union or who attend for work during industrial action, with the result that those individuals take benefits that union members have ‘won’. It is a term which in my experience is used to intimidate and incite a negative and hateful reaction against people who choose to attend work during periods of protected industrial action.

I understand that it is a commonly held view of union members that, when unions are taking industrial action, those people who do not join the industrial action are effectively taking the ‘cream’ others have fought hard to win without having ‘paid the price’ for that benefit. In that context, in my understanding, being a ‘scab’ means that the person is a ‘free loader’ and a ‘bludger’.

My understanding is that the word ‘scab’ is used as an expression of contempt and insult. In my experience, it is used as the worst insult that a person can be called in the mining industry.

In my understanding, the word ‘scab’ has historically been used to imply that non-union members and people that cross union picket lines are different, of bad character and of lower status than union members.

This evidence was admitted without objection. Although Mr Hamilton was challenged under cross-examination as to his views about the offensiveness of the word “scab”, he was not challenged on the evidence set out above, to the extent that it stated the connotation, and historical associations, of the word as used in the mining industry.

93    But the applicant did not leave the matter there. It led evidence from Andrew Vickers, the General Secretary of the Division. Mr Vickers’ experience in the mining industry in Queensland is considerable. Much of his evidence was the subject of objection, and I have admitted it only to the extent indicated in para 120 below. I do, however, rely on the evidence of Mr Vickers which I have summarised in that paragraph. To that I would add the following. Mr Vickers said that, during his term as Queensland District (ie Divisional Branch) President of the applicant (which ran until 2006), the national office of the applicant paid for the production of A3-size posters which set out “Jack London’s famous poem” entitled “Ode to a Scab”:

After God had finished the rattlesnake, the toad, and the vampire, He had some awful substance left with which he made a SCAB. A SCAB is a two-legged animal with a corkscrew soul, a waterlogged brain, and a combination backbone made of jelly and glue. Where others have hearts he carries a tumour of rotten principles. When a SCAB comes down the street men turn their backs and Angels weep in Heaven, and the Devil shuts the gates of Hell to keep him out. No man has a right to SCAB as long as there is a pool of water deep enough to drown his body in, or a rope long enough to hang his carcass with. Judas Iscariot was a gentleman compared with a SCAB. For betraying his Master, he had character enough to hang himself. A SCAB hasn't.

94    In the circumstances, I must take it to be common ground that, in the mining industry in Queensland at least (which will do for present purposes), a “scab” is a worker who continues to work in defiance of a collective decision by his or her fellows to go on strike for better pay or conditions. There may be a broader connotation that would have currency in different contexts (such as, possibly, a non-member in a workplace which is heavily unionised, and a person who chooses not to participate in a strike with other objectives), but the connotation I have given above seems to lie at the core of what it means to be a scab, and will be sufficient for present purposes.

95    On the facts of the present case, there continued to be many people who had uncontroversial recourse to the mine during the period of industrial action in February 2012. Only those who would be covered by the proposed new agreement were on strike. Contractors, management and administrative personnel, and at least some maintenance staff, continued to work normally. I could not find that the scabs sign was intended to have reference to them, although its indiscriminate use would most probably have included them as within the class of persons who were subject to whatever meaning was conveyed by its terms. There were, however, in addition some workers from the agreement-covered group who continued to work notwithstanding the decision of their fellows to take strike action. The scabs sign was on any view intended for their eyes and, I would have to infer in the absence of any submission to the contrary from the applicant, would have been read and understood by them as they came to and went from work.

96    If the subject were clear of previous judicial treatment, I would have no hesitation in accepting the respondent’s submission that the description of a worker as a scab, and as bereft of both principles and guts, because he or she chose the course of continuing to work during protected industrial action – a course legitimately open to him or her under the FW Act (indeed, a course for which he or she could not be the subject of adverse action: see ss 346(c) and 347(f)) – was offensive, and that the language involved in such a description was offensive and abusive. Indeed, in the light of its tender of the Jack London poem to which I have referred, I find it hard to appreciate how the applicant could credibly adopt any other position. As it seems to me, the whole point of calling someone a scab was to offend and to belittle them. And the offence was, if anything, magnified by the scabs sign’s elaborations: no principles, no guts. This was conspicuously offensive language.

97    The applicant submitted, however, that the subject was not free of judicial treatment. It relied on the joint judgment of Gummow and Hayne JJ, and the judgment of Kirby J, in Coleman v Power (2004) 220 CLR 1. In that case the High Court considered the Vagrants, Gaming and Other Offences Act 1931 (Qld) (“the VGO Act”), which was the predecessor of the SO Act. Of particular relevance was s 7(1)(d) of the VGO Act, which provided:

Any person who, in any public place or so near to any public place that any person who might be therein, and whether any person is therein or not, could view or hear … (d) uses any threatening, abusive, or insulting words to any person …shall be liable to a penalty of $100 or to imprisonment for 6 months….

The facts out of which the case arose were stated compendiously by Gleeson CJ in his dissenting judgment as follows (220 CLR at 21 [1]):

The appellant was protesting in Townsville. He was distributing pamphlets which contained charges of corruption against several police officers, including the first respondent. The first respondent approached the appellant and asked to see a pamphlet. The appellant pushed the first respondent, and said loudly: “This is Constable Brendan Power, a corrupt police officer”.

The question, to the extent presently relevant, was whether there had been a breach of s 7(1)(d) of the VGO Act.

98    Upholding the appeal, the High Court held, by a majority, that there had not been. A significant factor in that result was the view, accepted by their Honours in the majority, that s 7(1)(d) had to be read in a way that produced consistency with the constitutional freedom of communication on governmental and political matters. In the present case, the applicant submitted that any reading of s 6 of the SO Act which would hold that the use of the words which appeared on the scabs sign was offensive behaviour would involve a trammel upon that freedom. That submission must be rejected. The circumstances in which the scabs sign was used, and the message which it conveyed in that context, were unrelated to government and politics. There is no sense in which the construction or reach of s 6, at least on the facts of the present case, ought to be qualified by reference to the implied constitutional freedom of political communication.

99    That leaves the construction of s 6 as a statutory provision in its own right. In Coleman, the appellant’s words were found to be “insulting”. McHugh J considered that the presence in s 7 of the VGO Act of the requirement that the insulting words be used “to any person” required evidence that the words had “a personal effect on the person or persons who heard them” (220 CLR at 40 [63]). His Honour continued (at 40 [64]):

However, I can see no reason for otherwise limiting the natural and ordinary meaning of “insulting”. The provision imposed its own limitations: the insulting words had to be directed to a person and they had to be used in or near a public place. Accordingly, if the words were used in or near a public place and were calculated to hurt the personal feelings of a person and did affect the feelings of that person, they were “insulting words” for the purpose of s 7(1)(d).

His Honour also rejected (220 CLR at 41 [67]) the introduction of a limitation whereby it was necessary that the use of the words would be likely to occasion a breach of the peace.

100    Gummow and Hayne JJ also placed reliance upon the words “to any person” in s 7(1)(d). Their Honours said (220 CLR at 76-77 [191]):

[T]he requirement that “threatening, abusive, or insulting words” be used to a person demonstrates that s 7(1)(d) is not directed simply to regulating the way in which people speak in public. No crime would be committed by uttering threats to, or abuse or insults about, some person who is not there to hear what is said (unless, of course, the speaker’s behaviour could be held to fall within s 7(1)(c)). That being so, the proscription of the use of insulting words to another, and for that matter the proscription of engaging in insulting behaviour, must find support in more than the creation and enforcement of particular standards of discourse and behaviour in public. Making criminal the use of certain kinds of words to another can be explained only by reference to the effect on, or the reaction of, the person to whom the words are directed. It can be explained only by the provocation offered.

Their Honours held that the words “abusive” and “insulting” should be understood as limited to situations –

… which, in the circumstances in which they are used, are so hurtful as either they are intended to, or they are reasonably likely to provoke unlawful physical retaliation.

(220 CLR at 77 [193]).

101    Kirby J accepted the force of the reasons of Gummow and Hayne JJ to which I have referred (220 CLR at 87 [224]), but took the view that the considerations relied on by their Honours were “not ultimately determinative” (220 CLR at 87 [225]). His Honour invoked three other norms of statutory construction to decide the scope of s 7(1)(d), including that legislation should not be construed in a way that would involve incompatibility with the Constitution, namely, by way of trammel upon the implied freedom of political communication. His Honour held that the provision should be construed “so that it conforms to the Lange test as reformulated in this appeal” (220 CLR at 98 [254]). His Honour continued (220 CLR at 98 [254]):

As so construed, “insulting” words in the context of the Act are those that go beyond words merely causing affront or hurt to personal feelings. They refer to words of an aggravated quality apt to a statute of the present type, to a requirement that the insulting words be expressed “to” the person insulted, and to a legislative setting concerned with public order. They are words intended, or reasonably likely, to provoke unlawful physical retaliation. They are words prone to arouse a physical response, or a risk thereof. They are not words uttered in the course of communication about governmental or political matters, however emotional, upsetting or affronting those words might be when used in such a context.

102    It will be seen that, of the Justices that constituted the majority in Coleman, three took the view that the “insulting” words of which s 7(1)(d) spoke were only such words as, in the context in which they were uttered, were reasonably to be seen as likely to provoke unlawful physical retaliation. McHugh J did not, however, join in that view, in which circumstances it would be wrong to treat the view as an aspect of the ratio decidendi of the case. Nonetheless, the judgments of Gummow and Hayne JJ, and of Kirby J, are of the highest authority and must be accorded every respect. But, for reasons to which I will turn, I do not believe they govern the resolution of the present question.

103    The resolution of that question is governed by a new provision, enacted after the publication of the High Court’s reasons in Coleman. The reference to insulting language in the VGO Act, with which Coleman was wholly concerned, has not been repeated in s 6 of the SO Act. The “to the person” qualifier has been replaced by a more detailed one in the terms of s 6(2)(b). And, most importantly for present purposes, the court is concerned with offensive behaviour rather than with insulting words. To limit the notion of offensive behaviour to situations in which an unlawful physical retaliation might reasonably be apprehended would, in my respectful opinion, be to carve out from the section a substantial area in which it was clearly intended to perform work, and to do so without any apparent justification in the terms of the section itself. In certain situations which are not difficult to contemplate, the very people to whom particular behaviour might be conspicuously offensive would be those of tender sensibilities whose immediate reaction might be to turn away in revulsion rather than to pick a fight. Section 6(2) provides its own limitation upon what might otherwise be a broad proscription, namely, that the offensive behaviour must interfere, or be likely to interfere, with the peaceful passage through, or enjoyment of, a public place by a member of the public. There is, in my view, no warrant for the reintroduction of the qualifier that the behaviour must also be likely to provoke an unlawful physical retaliation from those who observe it.

104    I do, therefore, adhere to the conclusion which I provisionally reached at the end of para 96 above.

105    That brings me to s 6(2)(b) of the SO Act. It was common ground that the relevant “public place” was the public road leading to the entrance to the mine along the edge of which the protest was taking place. If the respondent submitted that the holding and waving of the scabs sign by Mr Doevendans interfered with, or was likely to interfere with, the peaceful passage of any person through (ie along) that road, it was a submission faintly made. The more forceful submission by the respondent was that the holding and waving of the sign interfered with, and was likely to interfere with, the “enjoyment” of that place (ie the road) by a member of the public. The respondent accepted that “enjoyment” in this context was a reference to beneficial use, and did not convey any sense of happiness or pleasure. But it was submitted that enjoyment in this sense could not be had by someone who was exposed to offensive behaviour. The right protected by the section, it was submitted, was the right to have the beneficial use of a public place, free of the irritations brought about by such behaviour.

106    Clearly the legislature took the view that something more than the behaviour as such ought to be required to give rise to the new offence introduced by s 6 of the SO Act. The provisions of the VGO Act discussed by their Honours in Coleman illustrate an approach that might have been taken to limit the range of behaviour that was to be proscribed. The approach taken, however, was not that the behaviour be within the visible or aural perception of a person, nor even that it be offensive to a person. Rather, the focus was, and is, upon the use to which the public place in question is being put, or is likely to be put, by the putative member of the public at the time of the behaviour. To say, as the respondent does, that the right protected by the provision is the right to use the place free of offence both begs the question and inadequately captures the sense of para (b) of s 6(2).

107    In my view, s 6(2)(b) requires consideration of the particular place to which the presumptively offensive behaviour is relevant and the use or uses to which it is beneficially put. Offensive behaviour of a particular character may, for example, interfere with the enjoyment by a member of the public of a public library or seated in the public gallery at a court, but not at a wholesale fish market. The same behaviour as may cause interference with the enjoyment of a place dedicated to the amusement of young children and their parents, such as a playground, may not cause any interference elsewhere. In the present case, the public place was a road. There was neither evidence nor suggestion that this road was used other than for the passage of vehicles. It is, in my view, to that use that regard should be had when considering the matter of interference under s 6(2)(b). A driver has beneficial use (ie enjoyment) of a road when he or she drives his or her vehicle along it. He or she may well be exposed to offensive images and words while doing so, but that exposure, unless quite exaggerated beyond anything suggested on the facts of the present case, would not interfere, and would not be likely to interfere, with his or her beneficial use of the road.

108    For the above reasons, I would hold that Mr Doevendans’ conduct in displaying the scabs sign at the protest at the mine in February 2012 was not unlawful under s 6 of the SO Act.

109    The second basis upon which the respondent relied for its submission that Mr Doevendans’ display of the scabs sign was unlawful arose under s 346(c) of the FW Act itself. The display of the sign was said to be adverse action within the terms of item 7 in the table in s 342(1) of the FW Act (ie because Mr Doevendans was at least a member of an industrial association) taken against the employees who had chosen not to take part in industrial action within ss 346(c) and 347(f) of the FW Act. It is clear, and I would find, that Mr Doevendans displayed the scabs sign, and inferentially did so particularly in the vision of those employees, because they had declined to take part in industrial action. The real question is whether his doing so amounted to adverse action against them within the meaning of s 342(1).

110    The provision in the table in s 342(1) upon which the respondent relies is so much thereof as defines “adverse action” as “action that has the effect, directly or indirectly, of prejudicing the person in the person’s employment”. The display of the scabs sign was said to be an attack on, or a criticism of, the employees who had chosen to work, and that this amounted to “prejudicing” them in their employment. The respondent relied on Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (1998) 195 CLR 1 at 18, in which it was held that an alteration of an employee’s position to his or her prejudice for the purposes of s 298K(1)(c) of the WR Act “covers not only legal injury but any adverse affection of, or deterioration in, the advantages enjoyed by the employee before the conduct in question”. There the verb in the statutory prohibition was “alters” (see now e.g. item 1 in the table to s 342(1) of the FW Act), while the verbal formula in the presently relevant prohibition is “has the effect … of prejudicing”, which appears to have first appeared as s 797(3)(a) of the WR Act after amendments made in 2005. For present purposes, I am prepared to take it that nothing of importance turns on such grammatical distinctions.

111    The only “effect” of Mr Doevendans’ display of the scabs sign on which the respondent relied was the direct one of being subject to the attack or criticism implied by the display of the sign as such. It was not said that there was any indirect effect. But I could not find that the direct effect relied on was “in the … employment” of the persons to whom it related. It was submitted on behalf of the respondent that the effect was “intimately connected with the employment” in the sense that the attack/criticism related to something done by these employees with reference to their employment. But that is not the discrimen under s 342(1). What is required is that the prejudicial effect occur in the employment; a relationship will not be sufficient. There is no suggestion that any of the employees who continued to work were, even indirectly, prejudiced in their employment. I do, therefore, reject this argument on behalf of the respondent.

112    The respondent’s next point under s 347(b)(iii) was that the protest, considered as the “activity” referred to in the sub-paragraph, was not “organized or promoted by an industrial association”. In point of fact, it was both organized and promoted by the committee of the Lodge: the applicant did not submit that the organization or promotion of the protest had been done by any person, body or authority in the applicant’s organization outside the Lodge. But it submitted that the Lodge was an industrial association in its own right, and that the organization and promotion of the protest was done by an industrial association because it was done by the Lodge. However, since I have held that the Lodge was not an industrial association in its own right, I must reject this submission. The applicant’s alternative submission was that the Lodge was the emanation of the applicant at the local level, and that what the Lodge did, within its proper area of activity under the rules, was ipso facto done by the applicant itself.

113    Under the rules of the Branch, the Lodge committee was required to “do whatever may be necessary to ensure that the health, lives and interests of their fellow workers are to the utmost protected”. In my view, this would stand as a sufficient basis for such action on the part of the committee as was involved in the organization and promotion of the protest. There was no evidence in terms that the committee resolved to act under this head of power, or even, at least consciously, turned its mind to that source of power. But that was not necessary. The Lodge was a local grouping of employed persons, and, if what their committee did was susceptible of being viewed as in their interests, then, in the absence of any evidence to the contrary, the court should not be astute to query whether the committee’s apparently conventional actions in fact fell within its remit under the rules of the applicant. It was suggested neither to Mr Doevendans nor to Mr Vickers that, in organizing and promoting the protest, the committee of the Lodge was acting outside that remit. I would hold that the committee was, in those respects, acting consistently with the rules.

114    Does it follow that the organization and promotion of the protest was the doing of the applicant? In my view, it does. As an artificial legal person, the applicant could act only through human agencies. The rules prescribed which human agencies had the authority to act as the applicant in particular situations. At the national level, the Division had collective bodies and individuals who were authorised, within their relevant spheres, to act and, when they did so, they caused the applicant itself to act. Likewise at the level of the Branch: if it was a matter of Branch concern, there were again bodies and individuals who carried the authority of the applicant, and when they acted within that authority, the applicant itself acted. And so also, within its very local sphere of activity and subject to the rule to which I have referred, the committee of the Lodge was to be regarded as the means by which the applicant acted. Although the factual setting was quite different, I consider that the principle referred to by Dixon CJ in Coal Miners Industrial Union of Workers of WA, Collie v True (1959) 33 ALJR 224 at 228 covers the present question:

The rule giving limited “autonomy” to the lodges … might appear susceptible of an interpretation putting the action of a lodge outside the scope of the union’s organized authority; but the better interpretation, that conforming with its true purpose, is that it enables the lodge to determine certain matters as part of the organization and in that to exercise the authority of the union.

In the view I take, the protest was organized and promoted by the applicant, and therefore by an industrial association within the terms of s 347(b)(iii) of the FW Act.

115    For the above reasons, I take the view that Mr Doevendans’ holding and waving of the scabs sign was conduct by way of participation in a lawful activity organised by an industrial association. Since a reason for his dismissal was that he did so hold and wave the sign, it follows that his dismissal was done in contravention of s 346(b) of the FW Act.

Representing or advancing the views, claims or interests of an industrial association

116    In this part of its case, the applicant also relies on s 346(b) of the FW Act, this time in conjunction with s 347(b)(v):

A person engages in industrial activity if the person:

….

(b) does, or does not:

….

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

117    The first issue to be resolved under s 347(b)(v) is the identification of the specific conduct on the part of Mr Doevendans which would constitute engagement in industrial activity. For the applicant to succeed, the conduct so identified must be that for which he was dismissed: that is to say, there must be an identity between the reason for his dismissal and the specific industrial activity in which he engaged. Here, Mr Doevendans was dismissed for holding and waving the scabs sign. He was not dismissed for taking part in the protest in other respects. That his participation in the protest may have constituted the representation or advancement, by him, of the views, claims or interests of an industrial association is, therefore, not presently to the point. The only question is whether the holding and waving of the scabs sign had that character.

118    The “views, claims or interests” presently of relevance are, therefore, those that were represented or advanced, expressly or implicitly, by the wording on the scabs sign, understood in the full context in which it was used, and allowing oneself a fairly robust approach to the reading of the words such as is required by the industrial relations setting involved. Even so, but subject to what I say in para 124 below, I do not think the words on the sign can be taken to convey anything about the views, claims and interests of those on the protest with respect to the broader enterprise agreement negotiations in support of which the protest generally was being conducted; or about particular issues seemingly in dispute, such as those mentioned on some of the other signs (see para 11 above). The words were confined to the expression of strong disapprobation of the conduct of workers who had chosen to continue to work during the protected industrial action. Of itself, that position could be regarded as a “view”. It could also be regarded as reflective of an “interest”: the conventional interest to which most trade unions would lay claim, namely, maximizing the effectiveness of their industrial action by high levels of participation. It is not so easy to see how the words on the scabs sign would reflect a “claim”, but, for present purposes, views and interests will be sufficient for the applicant.

119    Were those views and interests those of an industrial association? For reasons already given, this question must be answered apropos the applicant and, if necessary, the Branch. The Lodge cannot be considered as the industrial association to which s 347(b)(v) refers in the facts of the present case.

120    The applicant called Mr Vickers to give evidence as to the views of the applicant itself, and of the Branch. This evidence was objected to on the ground that Mr Vickers was in no position to state what other peoples’ views were. In the absence of any rule or resolution of the applicant, much of Mr Vickers’ evidence amounted to his recollections, over many years, of the views which others held, and of the conclusions which he drew about the views of others from the general tenor of conversations and interactions in meetings of various collective bodies within the applicant which he attended. These objections were, for the most part, based on the hearsay rule and, to that extent, I would uphold them. However, much of Mr Vickers’ evidence related to what had in fact happened when he was present, or in relation to events in which he was involved, and to his observations of the way the applicant conducted itself in various respects. I would admit that evidence. What I say in the following paragraph is confined to it.

121    Mr Vickers said that the most common word used within the applicant to describe members who worked whilst other members were on strike was “scab”. For as long as Mr Vickers could remember, the applicant, and its predecessors, had encouraged members to criticise those who went to work whilst others were on strike, the most common term used being “scab”. The applicant had produced material, including posters, stickers, clothing and signs, conveying the view that those who worked during a strike were scabs. The applicant encouraged its members to display those stickers and posters, and to wear that clothing, as often as possible. Such material was usually produced at a central location, and then posted to various regional offices and lodge offices for distribution to members. The material was also distributed directly to members at meetings and by post to their homes. Mr Vickers frequently encouraged members to display this material and to provide copies to other members at their mines; and he witnessed other officials of the applicant acting likewise. An example of the posters produced by the applicant was the Jack London poem to which I have referred in para 93 above. The applicant also paid for, and authorized the production of, stickers to be placed at various locations, such as on the hard hats of workers, on workers’ cars, and around various mine sites. Such stickers included the phrases “I would never scab Australia needs good unions”; “It takes guts to stay collective”; “No principles scabs no guts”; and “Warning scabs undermine working conditions”.

122    Section 346 is a beneficial, and protective, provision, and should not be narrowly or pedantically construed. In speaking of the views of industrial associations – and having regard to the potentially wide-range of manifestations of such an association – it is unlikely that the legislature intended the provision to be confined to opinions formally adopted, either in rules or by way of resolutions. On occasion, a view strongly held by an industrial association may be arrived at ad hoc for the purposes of a particular claim or dispute, and may clearly be inferred from the facts of the case, without any express statement in terms. Alternatively, the view may be visible, again as a matter of inference, from the way the association has conducted itself over many years. If the association either encourages or is complicit in conduct from which the existence of a particular view is to be inferred, that would normally be sufficient under s 347(b)(v). In the present case, and largely on the basis of the evidence of Mr Vickers to which I have referred, I do consider that the applicant has done enough to support the inference, which I draw, that it is its view, or at least the view of the Branch, that workers who continue to work during a strike that has been endorsed by a collective of their fellows were scabs, and should be castigated as such.

123    I also consider that, in displaying the scabs sign at the protest, Mr Doevendans was representing and advancing the interests of the Branch, and therefore of an industrial association, in relation to its negotiations with the respondent over the proposed new enterprise agreement. It is true that that agreement would be with the respondent’s employees, rather than with the applicant, or the Branch, as such. But the Branch had the conduct of the negotiations, and had a direct and obvious interest in their prosecution to a successful conclusion. It could scarcely be gainsaid that it was in the interests of the Branch that such industrial action as was taken in support of its position in the negotiations should be as effective as possible. By doing his part in prevailing upon workers at the Saraji mine not to continue working, thereby compromising, to some extent at least, the effectiveness of the industrial action, Mr Doevendans was representing and advancing the interests of the Branch in its negotiations with the respondent.

124    For these reasons, I take the view that, in displaying the scabs sign at the protest, Mr Doevendans was representing and advancing the views and interests of an industrial association. Since he was dismissed for that conduct, it follows that the dismissal was done in contravention of s 346(b) of the FW Act.

Disposition of the proceeding

125    In the event that it succeeded in the case, the applicant sought an order for Mr Doevendans’ reinstatement pursuant to s 545(2)(c) of the FW Act. It was submitted that such an order would usually be the normal consequence of a successful claim under s 346, in the absence of some particular reason being shown why such an order should not be made. I accept that submission: see Bowling v General Motors Holden Ltd (1980) 33 ALR 297 at 304-305; Independent Education Union v Geelong Grammar School [2000] FCA 557 at [34]; CFMEU v Pilbara Iron Co (Services) Pty Ltd (No 3) [2012] FCA 697 at [190].

126    In its submissions, the respondent did not address the question whether Mr Doevendans should be reinstated if the applicant succeeded in establishing that his dismissal had been in breach of s 346. For my own part, I cannot perceive any reason why such an order should not be made. This was not a case in which the dismissed employee, for example, had a history of problems at work, or would not accept supervision, or had done anything that was injurious or prejudicial to the ongoing relationship between employer and employee. It is true that Mr Doevendans rejected Mr Brick’s authority in relation to his actions at the protest outside the lease, but the very conduct to which Mr Brick objected was conduct which, I have held, was protected by s 346. In short, Mr Doevendans’ insistence that he was entitled to engage in that conduct has been upheld by the court. In other respects, Mr Doevendans has been an employee at the mine of very long standing, in itself some evidence of his value in the perception of the respondent. Nothing was put to the court to displace the conventional assumption that, save for the issues which have led to this proceeding, Mr Doevendans has been a good and faithful employee of the respondent over many years.

127    For the above reasons, I propose to exercise my discretion under s 545(2)(c) to order that Mr Doevendans be reinstated in the employment which he had before he was dismissed.

128    The applicant sought the opportunity (should it win the case) to address the court further on penalties. The respondent ventured no opposition to that course, and I shall adopt it. I shall provide for the parties to file written submissions on that subject, in the context of which I would also be prepared to receive submissions on any remedial or consequential orders which the parties may seek in the light of my reasons published today.

I certify that the preceding one hundred and twenty-eight (128) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jessup.

Associate:

Dated: 7 November 2012