FEDERAL COURT OF AUSTRALIA

Construction, Forestry, Mining and Energy Union v Corinthian Industries (Australia) Pty Ltd [2014] FCA 239

THE COURT ORDERS THAT:

1.     The application be dismissed.

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

REASONS FOR JUDGMENT

1    Corinthian Industries (Australia) Pty Ltd (“Corinthian”) and Baltic Doors Pty Ltd (“Baltic”) gave certain of its employees a $300 gift voucher as a reward for working during a period of industrial action between September and October 2011. The Construction, Forestry, Mining and Energy Union (“the Union”) contends that Corinthian and Baltic have thereby taken adverse action against the employees who did not receive the gift voucher by reason of them having exercised a workplace right, namely taking industrial action. The Union, at the conclusion of the evidence, did not press its alternative basis for the claim of adverse action, namely that the adverse action had been because the employees who did not receive the gift voucher were members of the Union.

2    Corinthian and Baltic are both in the business of the manufacture, distribution and sale of doors, door frames and architraves for the building and construction industry. Baltic is a wholly owned subsidiary of Corinthian which is a wholly owned subsidiary of Corinthian Holdings Pty Ltd which, in its turn, is a wholly owned subsidiary of Jeldwen Australia Pty Ltd (“Jeld-Wen”). Corinthian conducts its business from premises at St Marys (in New South Wales), Dandenong and Scoresby (in Victoria), Regency Park (in South Australia) and Canning Vale (in Western Australia). Baltic conducts its business at the St Mary’s site in New South Wales. Each of Corinthian, Baltic, the Union and the relevant employees were covered at the various sites by an Enterprise Agreement operating under the Fair Work Act 2009. The agreement came to an end on 20 August 2011 and between 6 September 2011 and around 26 September 2011, and on 24 October 2011, a number of the employees of Corinthian and Baltic engaged in strikes which were protected industrial action. Some employees at each site took part in the strikes but some employees worked through the strike. A new industrial agreement was reached in November 2011 with effect from the first full pay period after 1 December 2011. None of the employees of Corinthian or Baltic received wage increases between the period between 28 August 2011 and 1 December 2011, although a mechanism was ultimately agreed to by which employees received a signing-on fee of $200.

3    Between late 2011 and the first quarter of 2012 Corinthian and Baltic decided to reward the workers who had worked through the industrial action by giving them Woolworths gift vouchers to the value of $300. Neither Corinthian nor Baltic gave a gift card to those employees who had not worked during the industrial action. The Union contends that the conduct of Corinthian and Baltic is impermissible adverse action taken by them because the striking employees had exercised a workplace right. Corinthian and Baltic reject that contention. There was no dispute between the parties that the striking employees had a right to take protected industrial action within the meaning of the Fair Work Act 2009 or that they had exercised that right.

4    The Union’s claim against Corinthian and Baltic is that the failure to give a gift card to the employees who had gone on strike was adverse action against them. At the conclusion of the evidence the Union did not press the claim in respect of the workers in Regency Park in South Australia or those in Canning Vale in Western Australia where none of the workers who had not taken industrial action had received a gift card. At the conclusion of the evidence the Union also elected not to press the claim that the decision not to give a gift card to the workers who had gone on strike had been because of their membership of the Union. The evidence had clearly been that the decision to give gift cards was wholly unrelated to membership of the Union: all concerned in making and implementing the decision to give the gift cards did not know which of the employees belonged to the Union and at least some employees who did not go on strike and therefore received gift cards were members of the Union.

5    The workers of Corinthian and Baltic who went on strike were taking industrial action within the meaning of s 19(1)(c). That is a workplace right within the meaning of s 341(1) by virtue of s 341(2)(c). The respondents did not contest that those who went on strike had engaged in protected action within the meaning of the Fair Work Act 2009.

6    Section 340(1) provides that a person must not take adverse action against another person because the other person, amongst other matters, has a workplace right or has exercised a workplace right. The section is found in Part 3-1 of the Fair Work Act 2009, the objects of which are described broadly in s 336:

(1) The objects of this Part are as follows:

    (a) to protect workplace rights;

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

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

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

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

(c) to provide protection from workplace discrimination;

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

(2) The protections referred to in subsection (1) are provided to a person (whether an employee, an employer or otherwise).

The burden of proof that Corinthian and Baltic did not take adverse action falls upon them. Section 361 has the effect in the context of these proceedings of presuming that they took adverse action unless they prove otherwise. For that purpose s 360 provides that “a person takes action for a particular reason if the reasons for the action include that reason”: see also Board of Bendigo Regional Institute of Technology and Further Education v Barclay (2012) 290 ALR 647, 652.

7    The meaning of adverse action for the purpose of s 340 is to be found in s 342(1) which contains a table setting out the circumstances in which a person takes adverse action against another person. Item 1 in that table provides that an employer takes adverse action against an employee if the employer:

(a)    dismisses the employee; or

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

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

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

The Union contends that the failure to give gift cards to the striking employees came within items 1(b) and (d) as being, respectively, an injury to the striking workers and discrimination between them and those who had not gone on strike. The primary question in this proceeding is, therefore, whether the action taken (namely the failure to give gift cards) was taken “because” the striking employees had exercised their workplace right, namely, their right to strike.

8    Section 340 proscribes the taking of adverse action where it can fairly be said to have been taken “because” the person against whom it is taken is, relevantly, exercising a workplace right. Whether adverse action can be said to have been taken “because” a person was exercising a workplace right is a question of fact that cannot be found to exist merely because there is both adverse action and the exercise of a workplace right. What is needed is a sufficient connection between the two which permits the conclusion that the former had occurred “because” of the latter. The conclusion contemplated by the section requires an inquiry into whether the exercise of the workplace right was the reason that the action (otherwise coming within the statutory definition of “adverse action”) was taken. That is a question of fact and may be answered in part by the subjective reasons of the actual decision-makers. In Barclay French CJ and Crennan J said in a joint judgment:

[44]     There is no warrant to be derived from the text of the relevant provisions of the Fair Work Act for treating the statutory expression “because” in s 346, or the statutory presumption in s 361, as requiring only an objective inquiry into a defendant employer’s reason, including any unconscious reason, for taking adverse action. The imposition of the statutory presumption in s 361, and the correlative onus on employers, naturally and ordinarily mean that direct evidence of a decision-maker as to state of mind, intent or purpose will bear upon the question of why adverse action was taken, although the central question remains “why was the adverse action taken?”.

[45]     This question is one of fact, which must be answered in the light of all the facts established in the proceeding. Generally, it will be extremely difficult to displace the statutory presumption in s 361 if no direct testimony is given by the decision-maker acting on behalf of the employer. Direct evidence of the reason why a decision-maker took adverse action, which may include positive evidence that the action was not taken for a prohibited reason, may be unreliable because of other contradictory evidence given by the decision-maker or because other objective facts are proven which contradict the decision-maker’s evidence. However, direct testimony from the decision-maker which is accepted as reliable is capable of discharging the burden upon an employer even though an employee may be an officer or member of an industrial association and engage in industrial activity.

Gummow and Hayne JJ said in another joint judgment:

[126] The relevant frame of reference in this case is a statutory provision in which neither the words “objective” nor “subjective” appear. There is an inherent risk of misguidance when seeking to imply tests or requirements in the application of a statutory provision absent some persuasive basis to do so. Nothing was put in argument, nor are there any decisions of this Court, to provide such a basis. Indeed, no direct challenge was made to what had been said by Mason J in Bowling.

[127] In determining an application under s 346 the Federal Court was to assess whether the engagement of an employee in an industrial activity was a “substantial and operative factor” as to constitute a “reason”, potentially amongst many reasons, for adverse action to be taken against that employee. In assessing the evidence led to discharge the onus upon the employer under s 361(1), the reliability and weight of such evidence was to be balanced against evidence adduced by the employee and the overall facts and circumstances of each case; but it was the reasons of the decision-maker at the time the adverse action was taken which was the focus of the inquiry.

Heydon J said:

[146] To search for the “reason” for a voluntary action is to search for the reasoning actually employed by the person who acted. Nothing in the Act expressly suggests that the courts are to search for “unconscious” elements in the impugned reasoning of persons in [the decision maker]’s position. No requirement for such search can be implied. This is so if only because it would create an impossible burden on employers accused of contravening s 346 of the Act to search the minds of the employees whose conduct is said to have caused the contravention. How could an employer ever prove that there was no unconscious reason of a prohibited kind? An employer’s inquiries of the relevant employees would provoke, at best, nothing but hilarity. The employees might retort that while they could say what reasons they were conscious of, they could say nothing about those they were not conscious of.

The question posed by s 340 is not answered by looking for the primary or dominant reason of the decision-maker because it is sufficient that one of the reasons for the decision was that an employee was taking protected action. But the question does require a consideration of whether the employee taking protected action was a reason for the decision and for it to be a reason it must be a “substantial and operative factor”: see also BHP Coal Pty Ltd v Construction, Forestry, Mining and Energy Union [2013] FCAFC 132 [4], [10]-[12] (Dowsett J), [57] (Kenny J), [95] (Flick J); Greater Dandenong City Council v Australian Municipal, Administrative, Clerical and Services Union (2001) 112 FCR 232 [167] (Merkel J), [216] (Finkelstein J); Maritime Union of Australia v CSL Australia Pty Ltd (2002) 113 IR 326, [54]-[55].

9    The overwhelming evidence in this case was that the exercise by the striking workers of their workplace right was not a reason for Corinthian and Baltic not giving a gift voucher to the striking workers (assuming the decision not to give them the gift voucher otherwise came within the meaning of adverse action). Seven people gave evidence on behalf of the respondents: Mr Alan Bruce, then Senior Vice President of Jeld-Wen who had the oversight of the Corinthian and Baltic operations; Mr Mark Grundy, the Human Resources Manager of Jeld-Wen with responsibilities for Corinthian and Baltic; Mr David Morris, Director of Business Services of Jeld-Wen with responsibilities for Corinthian and Baltic; Mr Jason Webster, the then General Manager with responsibility for the operations of Corinthian at Dandenong; Mr Marcus Johnston, the then General Manager with responsibility for Corinthian’s operations at Scoresby; Mr Jim Allan, the General Manager with responsibility for Corinthian’s and Baltic’s operations at St Mary’s; Mr James Edwards, the General Manager with responsibility for the operations at the Canning Vale site in Western Australia; and Mr Roger Preston, the General Manager with responsibilities for Corinthian’s site at Regency Park in South Australia. The clear evidence was that the reason for giving the gift vouchers to the employees who had not gone on strike was to reward those employees as a sign of gratitude by the company for having assisted the company to continue its business and to meet its commercial obligations during a difficult time.

10    The evidence about the conditions of the industrial action, and its impact on the respondents, was different as between the sites in Victoria and New South Wales on the one hand and South Australia and Western Australia on the other. The operations of Corinthian and Baltic in Victoria and New South Wales were made difficult by the strikes and picket lines. Those attending work, whether or not union members, would first have to cross the picket line before being able to attend for work. The workers crossing the picket lines were often faced with abuse and intimidation. Those electing to work were also frequently called upon to work longer hours than they would ordinarily have worked, and at times were called upon to do the jobs of others who were on strike. The relations between the Union and management, however, remained cordial and respectful, but the industrial action put pressure on the employees who elected to work and also on the respondents to continue production to meet orders and other commercial obligations. The respondents continued to pay the non-striking workers their wages but also wanted to express their gratitude for the employees’ work which the respondents considered had been above and beyond the workers’ ordinary duties.

11    The industrial action began around 6 September and concluded by late September, with the exception of one day of industrial action in late October. A proposed new agreement was put to a vote of the members of the Union in mid-October but was rejected. It was, however, accepted in around mid-November after the respondents made an offer of a $200 sign-on bonus outside of the Enterprise Agreement to be paid to all employees covered by the proposed new Enterprise Agreement. In late 2011 management of Corinthian and Baltic then discussed giving something in addition to the employees who had previously attended work during the period of the industrial action. On 19 December 2011 Mr Grundy sent an email to Mr Bruce (with copies to Mr Webster and Mr Allan) with the subject matter “recognising those who worked during the strike” recalling a discussion which had occurred some weeks previously. The email said in part:

We made it pretty clear that anyone who took strike action would not be getting back-pay. Implicit in that statement was those who worked would not lose back-pay. We then decided “no one” would get back-pay based on potential discrimination claims.

I believe we are obliged to give the people who worked something in recognition for the fact that they did not support strike action. There will be a variety of reasons and circumstances that led to an individual’s decision to work that situation but the bottom line is they went against the strike action.

Mr Grundy suggested a shopping voucher to the value of $200 which he estimated at the time would be given to some 100 people in the five sites throughout Australia. Nothing came of the suggestion at that time but it was taken up again in the new year.

12    On 2 April 2012 Mr Grundy again wrote to Mr Bruce (with copies to Messrs Webster, Johnston, Allan, Edwards and Preston) with the subject matter “back-pay arrangements”. It is clear from the email that they had had discussions between December and April and had refined the proposal in various ways. The suggestion was then that those who had worked during the industrial action be given a $300 voucher from Woolworths able to be used for a wide variety of domestic products. The email suggested the text for a letter to accompany the gift voucher making clear that there was to be no reference to back-pay. A subsequent email indicated that the accompanying letter to the employees at the Dandenong site who received a gift card had simply stated: “Please accept this gift card in appreciation of your efforts in a challenging year”. A sample of the letter sent to the employees at St Mary’s who received the gift signed by Mr Allan said:

Over the past year our business went through some challenging times. None more so than the Industrial action during September 2011 which placed an enormous amount of pressure and emotional strain on those employees who remained at work.

Please accept this Gift Card as a token of our appreciation for your efforts and tolerance during this time.

I look forward to your continued support in the future.

The managers of the five sites were informed that gift cards were available to be distributed to the workers who had continued working during the period of industrial action in September 2011. The distribution of the cards essentially involved the mechanical process of identifying those who had worked during the period of industrial action, but the general managers in Western Australia and South Australia decided not to give any cards to any of the employees because the conditions at their sites during the industrial action did not, in the view of the relevant general managers, make relevant the giving of gift vouchers. The general managers in Dandenong, Scoresby and St Mary’s, however, each identified, through payroll records or otherwise, those workers who had presented for work during the period of industrial action and arranged for a gift card to be sent to them. In the case of St Mary’s, this included two employees who had initially gone on strike but subsequently decided to cross the picket line and return to work.

13    The Union contends, however, that the evidence disclosed that the subjective reasons of the decision-maker included as a substantial and operative factor the reason of not giving the gift voucher to the employees who did not present for work because they had engaged in strike action. It was common ground that the operative decision-maker was Mr Bruce and it was his evidence which the Union pointed to in submissions for its contention. Mr Bruce accepted as correct, when it was put to him in cross-examination, that “one of the reasons the striking employees did not get the gift card was that they didn’t perform work during the industrial action”. The specific text of the cross-examination was:

And one of the reasons the striking employees did not get the gift card was that they didn’t perform at work during the industrial action? -- That is correct.

And one of the reasons that the working employees got the gift card was that they showed their support for the employer during the course of the industrial action by not taking industrial action? -- That is correct.

The Union contended that these passages are sufficient by way of admission to conclude that a reason for failing to give the striking workers the gift card was their exercise of a workplace right. It is, of course, axiomatic that the exercise of the workplace right was a reason that the striking workers had not worked during the time of the strike. That, no doubt, also explains why they may not have been paid their ordinary wages during the period when the non-striking workers attended work and received pay for the work which they performed. It does not follow, however, that the reason the striking workers did not receive the gift card had a causal foundation in the circumstance occasioned by their exercise of their industrial right: taking strike action was a cause of not working but taking strike action may not have been the cause of their ineligibility for the gift card. It is true that “but for” the exercise of their workplace right to strike they would not have been excluded from consideration for receipt of the gift card. It is also true that “but for” the exercise of the workplace right to strike there would not have been created the difficult circumstances at the workplace which led to the non-striking workers to perform above and beyond their ordinary duties. However, an enquiry into causes will not necessarily be answered by application of a “but for” test (see March v Stramare (E. & M.H.) Pty Ltd (1991) 171 CLR 506, especially 516, 523, 524, 532) but generally requires a common sense evaluation of all of the relevant facts and circumstances, as explained in Barclay. The evidence of Mr Bruce in cross-examination was responding to the logic which necessarily followed from a decision to award the workers who had remained at work during the industrial action. The evidence of Mr Bruce of the decision which he made was not a decision not to give a gift card to the striking workers because they had exercised their right to strike. What the respondents did decide was to reward those employees who had assisted the company during difficult circumstances and who had supported the company by doing more than would ordinarily have been required. A consequence of that decision was that the striking workers did not qualify for the gift but it is not an accurate characterisation of what the respondents actually did to see it as a decision not to provide gift cards to the workers who had gone on strike.

14    It may, therefore, not strictly be necessary for me to consider whether the action would otherwise fall within the respective meaning of injury and discrimination in items 1(b) and (d) of the table in s 342(1). However, it may be desirable to say something of the arguments which were advanced in respect of those matters.

15    The Union relied primarily upon the decision in Health Services Union of Australia v State of Tasmania (1996) 73 IR 140 to contend that a failure to give the gift vouchers to the striking employees amounted to injury within the meaning of paragraph (b) of item 1 to the table in s 342(1). That case concerned an employer withholding a general wage increase from those of its employees who were members of a Union. In the context of an interlocutory application Marshall J said at 144-5:

Mr Bleby submitted that s 334 of the IR Act is not concerned with the protection of organisations but with the protection of their members. That submission is erroneous. The protection extends to both the organisation and the member. See Bowling v General Motors-Holden’s Pty Ltd (1980) 50 FLR 79 at 94 where the Full Court of the Federal Court of Australia said of the predecessor section:

“The policy and purpose of subss (1) and (4) of s 5 is to protect organizations of employees and their representatives from discrimination and victimization by employers.”

Gray J in Lewis Construction Co Pty Ltd & Ors v Martin (1986) 17 IR 122 at 128 cited that passage and said:

“The purpose of protection of organisations has been seen to be linked with the protection of their members.”

See also Pearce v W.D. Peacock & Company Limited (1917) 23 CLR 199 at 205 where Isaacs J said of the original anti-victimisation provision in the 1904 Act that:

“Now, as I read that section, it is designed, among other things, to preserve organizations, so that the method selected by Parliament for settling disputes shall not be thwarted.”

That passage in Pearce was cited with approval by the High Court in General Motors-Holden’s Pty Ltd v Bowling (1976) 51 ALJR 235 at 240 and in R v Sweeney; Ex parte Northwest Exports Proprietary Ltd (1981) 147 CLR 259 at 265.

Nothing could be more calculated to damage an organisation and strike at its representative capacity than the actions of an employer designed to single out members of the organisation for special, inferior treatment and to encourage such members to relinquish their membership.

It amounts to victimisation of the organisation and of its members in the workplace. But the question still arises as to whether it, in terms, involves a breach of s 334 of the IR Act. I believe a strong case has been made out by the applicants that it does so in the circumstances of this proceeding.

The action of the respondent in singling out a member of the HSUA for denial of a wage increase is in the circumstances an “injury” to such an employee in “his or her employment” within s 334(1)(a)(i) of the Act. The action of the respondent involved it treating HSUA members “... differently to other employees and for reasons not associated with the manner in which (they are) performing (their) work. ...” See Squires v Flight Stewards Association of Australia (1982) 2 IR 155 at 164. Further, I am satisfied that, as the evidence stands, HSUA members have had their positions altered to their prejudice. They were assured during a period in which bans and limitations had been imposed by them that the 5.5 per cent wage increase would be paid to them regardless of industrial action. The respondent reneged on this assurance and as a result the “expectations and benefits” which were to accrue to HSUA members were lost. See Linehan v Northwest Exports Pty Ltd (1981) 57 FLR 49 at 62.

In considering his Honour’s observations it is important to bear in mind that they were made in the context of an interlocutory application where his Honour was not required to decide the competing issues finally as between the parties but, rather, whether there was a serious issue to be tried. That may in part explain why his Honour’s observations had not since arisen for consideration in other decisions raising similar issues. Counsel for the Union was able to locate only one other case in which his Honour’s observations had been referred to: McIlwain v Ramsey Food Packaging Pty Ltd (2006) 154 IR 111. Counsel for the respondents, in contrast, contended that his Honour’s observations were inconsistent with other authority and that his Honour’s decision had placed erroneous reliance upon what Isaacs J had said in Pearce v WD Peacock & Company Ltd (1917) 23 CLR 199. There is, however, in principle nothing objectionable, or contrary to authority, in the broad proposition that to single out an employee on the basis of union membership for denial of a general wage increase which is otherwise available could amount to an injury within the meaning of paragraph (b) in item 1 to the table in s 342(1).

16    It is not clear whether “injury” in item 1(b) is confined only to injuries of a compensable kind (cf Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (No 3) (1998) 195 CLR 1, [4]), but for present purposes it is sufficient to conclude that not giving the gift vouchers to the striking workers did not injure them in the ordinary meaning of the word “injures”. The workers were receiving the gift cards as a gift in recognition of something which they had done. It was a gift and not a contractual entitlement, and was not received by them for work, or similar work, which all employees either had performed or were performing. The facts are, therefore, relevantly different from those considered in Health Services Union: the present is not a case of similar work being rewarded differently by reference to the exercise of a protected work right. Furthermore, to the extent that the receipt of the gift voucher may have depended upon consideration, it was consideration given by the workers who put in extra effort during the period of industrial action and there was no comparable consideration given by the striking workers in relation to which an entitlement could arise. There is otherwise no need to consider the debates between counsel concerning whether his Honour in Health Services Union had incorrectly relied upon a passage from the decision of Isaacs J in Pearce (see General Motors Holding Pty Ltd v Bowling (1976) 12 ALR 605, 616; Board of Bendigo Regional Institute of Technology and Further Education v Barclay (2012) 290 ALR 647, [62]; BHP Coal Pty Ltd v Construction, Forestry, Mining and Energy Union [2013] FCAFC 132 [4]).

17    Paragraph (d) in item 1 of the table in s 342(1) adds “discrimination between the employee and the other employees of the employer” to the list of adverse action. The concept of “discrimination” is not new to law in general or to industrial law in particular, but the item is a recent addition to the relevant provision and, in that context, has not yet received much consideration. The words “discriminate against” (as distinct from the words “discriminates between” which are found in the relevant item in question) were considered in Australian Building and Construction Commissioner v McConnell Dowell Constructors (Aust) Pty Ltd (2012) 203 FCR 345. In that case the Full Court considered that some adverse consequences from differential treatment must be identified to establish that there had been impermissible discrimination against a person: see [26]-[30] (Buchanan J), [64]-[71] (Flick J), and [110]-[111] (Katzmann J). In Construction, Forestry, Mining & Energy Union v Pilbara Iron Company (Services) Pty Ltd (No 3) [2012] FCA 697 Katzmann J said of item 1(d):

40.    Item 1(d) of the table in s 342(1) does not speak of discriminating against someone (which is the formulation in some anti-discrimination legislation and also in item 2(b) of the table) but discriminating between people. “Discriminates” is not defined so it must have its ordinary meaning which, relevantly, is simply to make a distinction (the first meaning in both the Oxford and the Macquarie Dictionaries). Still, the section is dealing with adverse action. I think it is unlikely — despite the difference in the prepositions used in items 1(d) and 2(a) — that the Parliament had in mind anything other than conduct which discriminated against one employee when compared with other employees. The applicants accepted this in their opening submissions, although they retreated from this position in their closing submissions. I rather think that the different expressions were used for syntactical reasons.

41.    Both parties nevertheless accepted that discriminate in this context means “treat less favourably”. That necessarily imports the concept of discriminating against the employee who has been treated in this way. [Emphasis in original]

Her Honour was not required to make a final decision on this matter but expressed the view at [43] that item 1(d) requires that one employee is treated differently from others in the same or comparable circumstances. In United Firefighters Union of Australia v Country Fire Authority [2014] FWCFB 410 the Full Bench of the Commission took the view that to provide enhanced benefits was not adverse action within the meaning of item 1(d).

18    An inquiry into whether there has been “discrimination between” is different from an enquiry into whether there has been “discrimination against”. The former will usually require a comparator against which discrimination is to be considered. Whether there was “discrimination between” employees is, however, ultimately a question of fact in which the focus of enquiry is not only on whether there is difference in treatment but, importantly, whether that difference may fairly be described as discriminatory. Item 1(d) is directed towards different treatment in comparable circumstances and not different treatment for different circumstances. It may be that “discrimination between” does not require a finding that any difference operated adversely to the interests of a person, but item 1(d) does require that any difference be one in comparable circumstances. The respondents in this case elected to give gift vouchers to those employees who had supported the economic interests of the company during a time of industrial action. The decision to reward them in that way was to identify a criterion to qualify for the gift without discrimination of the kind to which item 1(d) is directed: it was not a criterion treating all in the same position differently.

19    The respondents had initially sought to rely upon s 470 of the Fair Work Act 2009 in defence of the Union’s claim. However, they elected (in my view correctly) after the hearing to withdraw the paragraphs of their defence in which s 470 was raised and relied upon.

20    There will be orders in this proceeding dismissing the application.

Associate:

Dated:     18 March 2014