FEDERAL COURT OF AUSTRALIA

Transport Workers Union of Australia v Premier Motor Service Pty Ltd [2015] FCA 650

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The question of costs of the appeal is reserved.

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

REASONS FOR JUDGMENT

1.    ISSUES

1    The appellant, the Transport Workers Union of Australia (TWU), alleges that the respondent employer, Premier Motor Service Pty Ltd (Premier), contravened s 346(b) of the Fair Work Act 2009 (Cth) (the FW Act) by taking adverse action against its employee, Mr David Cole, and other members of the TWU because they engaged or proposed to engage in industrial action.

2    The central issue on appeal is whether the Federal Circuit Court correctly held that the conduct in question did not constitute “adverse action” for the purposes of s 346(b). While some seven grounds of appeal are pleaded, it is apparent from TWU’s submissions that these reduce to two alleged errors in the decision below:

(a)    first, in holding that the removal of a roster sheet system by which coach drivers were advised of vacancies in the roster and could express their interest in filling vacancies was not an adverse action; and

(b)    secondly, in having regard to Premier’s reasons for “reallocating” charter work allocated to Mr Cole, holding that the “reallocation” was not adverse action and thereby circumventing the presumption in s 361 of the FW Act that the “reallocation” was undertaken for the impermissible purpose alleged.

3    As to the first issue, the TWU submits that, if the primary judge had found that the removal of the roster sheet system was an adverse action, the contravention of the FW Act would have been established. This is because the primary judge found at [66]-[67] of his reasons that Premier had failed to lead any evidence as to why the system was removed in August 2012, as opposed to some other time, and therefore failed to rebut the statutory presumption. The finding that Premier did not lead any such evidence is, however, challenged by Premier (ground 4, notice of contention).

4    As to the second issue, Premier challenges the finding at [62] below that the Court could not be satisfied that the reason for “not confirming” Mr Cole to undertake the charter work was dissociated from, and did not include that, Mr Cole had participated in an industrial activity (ground 3, notice of contention). Premier also contends that the primary judge erred in refusing to allow it to lead further evidence in response to oral evidence given by Mr Cole not foreshadowed in his affidavit evidence (ground 1, notice of contention).

5    At the hearing of the appeal, Premier abandoned ground 2 of its notice of contention alleging that the primary judge had erred in granting leave to the TWU to amend its application.

6    For the reasons given below, the primary judge did not err in finding that the removal of the roster sheet system was not an adverse action. It is unnecessary therefore to consider whether his Honour erred in his conclusions in obiter as to the reasons why the roster sheet system was removed. Secondly, while I consider that the primary judge erred in failing to hold that the removal of Mr Cole from the charter work was an adverse action, his Honour, with respect, applied the wrong test in finding in the alternative that the reasons for that action contravened s 346(b). Rather, on the basis of the primary judge’s finding as to the operational decision to subcontract the work (in which I can find no error), his Honour ought to have found that Premier had discharged its onus of establishing that the action was undertaken for reasons other than Mr Cole’s industrial activity.

2.    THE LEGISLATIVE SCHEME

2.1    Provisions protecting workplace rights

7    Part 3-1 of Chapter 3 of the FW Act provides general workplace protections by prohibiting the taking of adverse action, relevantly, by an employer against an employee for a proscribed purpose. The provisions are intended to protect workplace rights, freedom of association including participation in lawful industrial activities, and freedom from discrimination in the workplace, and to provide effective relief for persons adversely affected by a contravention of those rights (s 336, FW Act).

8    The protection relied upon here is that afforded by s 346 of the Act. This provision, which is a civil remedy provision, provides that:

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

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

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

(c)    does not engage, or has at any time not engaged or proposed to not engage, in industrial activity within the meaning of paragraphs 347(c) to (g).

(Emphasis added.)

9    Section 347 provides that a person “engages in industrial activity” if the person, relevantly:

(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; or

…

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

…

10    It is plain from s 346 that it involves two primary elements:

(a)    the taking of adverse action against another person; and

(b)    the taking of that action for a proscribed reason, as is apparent from the use of the word “because”.

11    The term “adverse action” is defined in the table in s 342(1) of the FW Act relevantly at item 1. That item provides that adverse action is taken by an employer 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.

12    The adverse action alleged here was said to fall within paragraph (b) and/or (c) of item 1. It is apparent from the authorities discussed later, that the alteration to the employee’s position to her or his prejudice for the purposes of paragraph (c) need not be an alteration to her or his legal rights but may include, for example, expectations: see at [35] below.

13    Section 360 in turn provides that “[f]or the purposes of this Part, a person takes action for a particular reason if the reasons for the action include that reason” (emphasis added). As such, it suffices if the proscribed reason is only one of a number of operative reasons for the action, as I explain further below.

3.    FINDINGS BY THE PRIMARY JUDGE

3.1    The parties

14    The TWU is an organisation of employees registered under the Fair Work (Registered Organisations) Act 2009 (Cth) and is an “industrial association” for the purposes of that Act. As the primary judge found at [3], the TWU had standing to institute proceedings for a contravention of s 346 of the FW Act affecting an employee who is entitled be represented by it by reason of item 11 of the table in s 539(2) of that Act.

15    Premier operates bus and coach services across the eastern seaboard, including bus operations in or around Wollongong under the business name Premier Illawarra. Mr John King is the Managing Director of Premier. Mr Mark Powell is the General Manager of Premier’s bus service operations in or around Wollongong. In that role, Mr Powell was responsible for the operation of regular route services and dedicated school bus services. As I later explain, he arranged with Mr Cole to undertake the charter work on 6 or 7 August 2012 which was the subject of complaint. Mr Powell also made the decision to subcontract that work to other providers, advised Mr Cole that he would not be undertaking that work on 9 August 2012 and “reallocated” Mr Cole to his usual weekly shift.

16    Mr Cole has been employed by Premier and a member of the TWU for approximately 25 years. He has been the delegate of the TWU at Premier’s yard at Unanderra for approximately the last 10 years.

3.2    The roster sheet system

17    The bulk of Premier’s operations, i.e. 95%, comprise regular and school bus run services. These operations are conducted pursuant to a contract with the New South Wales Government. In addition, from time to time, Premier offers private charter work to drivers which provides additional income for Premier and a change from regular runs for drivers. The primary judge found that charter work may require drivers to work additional hours and give them additional earnings.

18    Work is allocated among drivers for regular bus services by a roster system. The primary judge found at [6] that, under that system:

A driver is allocated to a particular roster number which comprises a set series of bus routes required to be undertaken by the driver. The evidence indicates that drivers generally remain rostered on their designated routes for long periods of time.

19    Further, and importantly, his Honour found at [7] that:

A system had developed whereby, when a roster becomes free (for example, as a result of the driver leaving the company), other drivers had the opportunity to put their name forward to take over the roster. Drivers were aware of vacant rosters by checking a “roster sheet”. The “roster sheet” was placed on a wall in the yard and set out all the vacant rosters and contained a field for drivers to express an interest by signing their name against the vacant roster.

20    A system had earlier existed whereby vacant rosters were allocated according to a seniority list, i.e., a list of drivers in order of seniority according to length of service. That list had been removed from display several years ago. Nonetheless his Honour found at [8] that Premier “continued to, in a less systematic way, allocate rosters on the basis of seniority.”

3.3    Negotiations for a new enterprise agreement

21    Employees of Premier employed as bus drivers or conductors were covered by an enterprise agreement known as the Premier Motor Service Pty Ltd and the Transport Workers’ Union of Australia Fair Work Agreement 2010 (the 2010 Agreement). The 2010 Agreement passed its “nominal expiry date” on 30 June 2012 but continued in operation pursuant to s 54 of the FW Act. As the Agreement had nominally expired, it was open to employees when the events here took place to take “protected industrial action” in relation to any negotiation of the new enterprise agreement, including relevantly “employee claim action” for a proposed enterprise agreement as defined in s 409(1) of the FW Act. Action of that nature includes “industrial action that: (a) is organised or engaged in for the purpose of supporting or advancing claims in relation to the agreement that are only about, or are reasonably believed to only be about, permitted matters”.

22    In mid-2012, bargaining was taking place between the TWU (representing bus drivers) and Bus NSW (representing bus operators) for the purpose of making new industrial agreements which might include a replacement for the 2010 Agreement (reasons below at [21]).

3.4    Findings below on the alleged contraventions of the FW Act

23    Mr Cole circulated a document at the request of the TWU to collect the names and contact details of TWU members. The primary judge accepted at [23] that the apparent purpose of the form was to identify union members at a workplace to facilitate the possible future conduct of a protected action ballot by the Australian Electoral Commission. Mr Cole also intended to promote the TWU’s campaign to members at the Unanderra depot. The primary judge found at [23] that Mr Cole’s circulation of the form “was a preliminary step which might ultimately lead to protected industrial action and hence related to taking protected industrial action. I accept that, on a broad view, this action constituted engaging in an industrial activity”, at least insofar as it constitutes conduct of the kind described in s 347(b)(ii), (iii), (iv) and (v) of the FW Act.

24    His Honour also accepted at [24] that the TWU was entitled to identify its members in the expectation that bargaining at the enterprise level would be required at some future time, and that protected industrial action in support of that bargaining might become necessary depending on what occurred with respect to negotiations at the industry level.

25    None of these findings are challenged on appeal. Nonetheless, the primary judge held that no contravention of the FW Act had been established.

26    First, his Honour held at [40] that, despite there being a preliminary arrangement for Mr Cole to perform the charter work, there was no adverse action taken by reason of Premier’s decision not to undertake the charter work but to subcontract it to other providers. Those providers were Nowra Coaches Pty Ltd (Nowra) who provided the coaches and one driver and Kiama Coaches Pty Ltd (Kiama) who provided the other driver.

27    Secondly, the removal of the roster sheet from the wall in the yard was not an adverse action because it did not destroy the drivers’ capacity to be informed of vacant permanent rosters and to have the opportunity to express an interest in taking over rosters which they considered to be more amenable or attractive (at [44]).

28    While it was, therefore, strictly unnecessary for the primary judge to consider whether the reverse onus as to the reasons for the alleged adverse action had been discharged by Premier, his Honour nonetheless considered the issue in case he was wrong on his primary conclusions (at [46]).

29    As to the reasons for the subcontracting decision, the primary judge preferred Mr Cole’s evidence on the content of a conversation between Mr Powell and Mr Cole on 9 August 2012 (at [60]). His Honour also found that the evidence put forward by Premier to establish an alternative reason for the conduct, while persuasive “in terms of the real reason”, was not persuasive “in terms of the reason communicated to Mr Cole” in the disputed conversation (at [61]). His Honour concluded at [62] that, while there was an operational reason for the subcontracting decision, “the Court could not be satisfied that the reason for not confirming Mr Cole to undertake the charter work was dissociated from and did not include that Mr Cole had participated in an industrial activity” (emphasis added).

30    As to the reasons for removal of the roster sheet, the primary judge concluded that the statutory presumption that the reasons included industrial activities as alleged was not rebutted by Premier because no evidence had been led as to why the action was taken in August 2012 (at [66]-[67]).

4.    “ADVERSE ACTION”

4.1    Principles

31    The principles by which it is determined whether conduct is adverse action as defined in s 342(1) may be summarised relevantly as follows.

32    First, the onus lies upon the applicant to establish that conduct constitutes an adverse action. There is no statutory reversal of the onus of proof for this element of the cause of action, in contrast to the position with respect to the reasons for any such action.

33    Secondly, it is important to distinguish between an injury to the employee in her or his employment, on the one hand, and an alteration to the employee’s position to her or his prejudice, on the other hand, within the definition of “adverse action”. As the High Court held in Patrick Stevedores Operations No 2 Proprietary Limited v Maritime Union of Australia (No 3) (1998) 195 CLR 1 (Patrick Stevedores) at 18 [4] with respect to subs 298K(1)(a), (b) and (c) of the Workplace Relations Act 1996 (Cth):

…par (b) covers injury of any compensable kind; par (c) is a broad additional category which covers not only legal injury but any adverse affectation of, or deterioration in, the advantages enjoyed by the employee before the conduct in question.

Subsections 298K(1)(a), (b) and (c) were relevantly in the same terms as their successor provisions in item 1 of the table in s 342(1) of the FW Act.

34    Thus it has been said that “injury” “refers to deprivation of one of the more immediate practical incidents of his employment, such as loss of pay or reduction in rank”: Smithers J in Childs v Metropolitan Transport Trust (1981) IAS Current Review 946 at 948 (quoted with approval in, e.g., Australian and International Pilots Association v Qantas Airways Ltd [2006] FCA 1441; (2006) 160 IR 1 (Qantas) at [14] (Tracey J) and Blair v Australian Motor Industries Ltd (1982) 61 FLR 283 at 290–292 (Evatt J)). Similarly, Finkelstein J in Community and Public Sector Union v Telstra Corporation Ltd [2000] FCA 844; (2000) 99 IR 238 at 244 [20] explained that:

Injury is concerned with actual adverse effect, usually by the loss or alteration of a legal right, in the position of an employee, in his capacity as an employee.

(His Honour’s decision was overturned on appeal, but not on this issue.)

35    By contrast, as Tracey J held in Qantas at [15], the concept of prejudicial alteration is “apt to comprehend prejudice extending beyond legal injury”, giving as examples “reneging by an employer on an assurance…, corporate restructuring which reduces the solvency of the employer… and discriminatory allocation of less congenial shifts or rosters” (citations omitted). It has also been held to extend to expectations of re-employment raised by an employer: Australian Meat Industry Employees’ Union v Belandra Pty Ltd [2003] FCA 910; (2003) 126 IR 165 (Belandra) (discussed below at [48]).

36    Thirdly, it is necessary to compare the position of the employee(s) before the impugned conduct and their position after that conduct in order to determine whether their position had been altered to their detriment, as the primary judge held at [26]: see also Commonwealth Bank of Australia v Finance Sector Union of Australia [2007] FCAFC 18; (2007) 157 FCR 329 at 350 [127] (Branson J); Construction, Forestry, Mining and Energy Union v Pilbara Iron Company (Services) Pty Ltd (No 3) [2012] FCA 697 at [49] (Katzmann J); BHP Iron Ore Pty Ltd v Australian Workers’ Union (2000) 102 FCR 97; [2000] FCA 430 (BHP v AWU) at 112 (the Court).

37    Finally, action which has an indirect or consequential impact on the position of employees may constitute prejudicial alteration where that impact is real and substantial. For example, in Patrick Stevedores, the majority of the High Court found that the corporate reorganisation within the group companies left the security of the employer companies’ business “extremely tenuous”, with a consequential alteration to the security of the employees’ employment to their prejudice (at 20 [7]): see also e.g. Community and Public Sector Union v Telstra Corporation Ltd [2001] FCA 267; (2001) 107 FCR 93 (CPSU v Telstra) (discussed at [50] below).

4.2    Did the decision to subcontract the charter work with its consequential impact on Mr Cole constitute an “adverse action”?

38    The primary judge found at [32] that there was no dispute on the evidence that:

a)    Mr Cole, and probably other drivers at the depot, found charter work to be attractive and more pleasant than usual route work and that it provided the chance to earn additional income ;

b)    Mr Cole was at the very least offered the chance to undertake charter work between 10–15 August 2012 by Mr Powell of Premier; and

c)    Mr Powell informed Mr Cole on or about 9 August 2012 that he would not be undertaking the charter work.

39    The primary judge also accepted that, in accordance with usual practice, Mr Cole was asked on 6 or 7 August 2012 whether he would be available to undertake the charter work between 10-15 August 2012 (at [35]). There was, however, a dispute on the evidence as to the terms of the conversation between Mr Powell and Mr Cole in which Mr Cole was offered the charter work. The primary judge found in this regard that:

35. …Mr Cole’s recollection of the conversation was that Mr Powell said words to the effect of:

I’ve got a three day charter down to the snow, you’ll be travelling with Jason [Carruthers] its on 13, 14 and 15 August 2012, are you happy to take that?

36. Mr Powell’s recollection was that he asked whether Mr Cole was either “interested” or “available”. In cross-examination, neither was clear of the precise words used. It is fair to say, however, that both believed that Mr Cole would be undertaking the charter work at the conclusion of the conversation.

(Emphasis added.)

40    His Honour concluded at [37] that “[w]hatever precise words were used, an arrangement was made whereby Mr Cole was expected to be available for and himself expected to perform the charter work.” As such, any apparent conflict in the evidence as to the conversation on 6 or 7 August 2012 was resolved by the primary judge accepting ‘common ground’.

41    That finding was plainly supported by Mr Powell’s evidence. As the primary judge held, Mr Powell accepted that, if he had not later told Mr Cole that he would not be undertaking the charter work, Mr Cole would have attended work on 10 August 2012 expecting to perform it (at [37]). Mr Powell also accepted that Mr Cole had “expectations of going”, and that it was for this reason that he had advised Mr Cole at approximately 5.00pm on 9 August 2012 that he would not be undertaking the charter work (at [38]). Furthermore, Mr Powell described his decision to remove Mr Cole from the charter work as a decision to “reallocate” Mr Cole “to his usual weekly shift” (at [38]). His Honour therefore considered at [38] that, if the charter work had been allocated to another driver within Premier in preference to Mr Cole, the decision may have constituted an injury in his employment or prejudicial alteration to his position.

42    His Honour’s reasons for holding that there was no adverse action turned on the finding that “the charter work in issue ceased to exist as work at Premier because of an operational decision to subcontract that work to another provider” (at [39]). His Honour accepted in this regard that the operational reason was a shortage of available drivers and the need to ensure that Premier could cover its regular runs, Mr Powell giving evidence that as a result he decided to retain Mr Cole’s services for scheduled routes. However, the primary judge did not consider that it was credible that it was a decision to withdraw the work specifically from Mr Cole (at [39]).

43    Finally, the primary judge rejected the TWU’s submissions on the basis that:

40. The TWU made much of an alteration which was made to the rosters to reflect the preliminary arrangement that had been made for Mr Cole to perform the charter work. Mr Cole’s name was struck out on the office roster sheet for 10 August 2012. As Mr Powell explained in cross-examination, that indicates that Mr Cole was not expected to be performing his usual route shift. The documentation supports the evidence of Mr Cole and Mr Powell that (in the time between the two conversations) they both understood that Mr Cole would be undertaking charter work unless he was instructed otherwise. The fact is that Mr Cole was instructed otherwise. No “Charter Form Driver’s Instructions” was placed in Mr Cole’s pigeon hole. That would have been a necessary confirmation of the allocation of the work. It is unsurprising it was not done. A decision was made that Premier would not undertake the work. Mr Cole was no doubt disappointed. He suspected foul play because he had been criticised for circulating the document in the form of Exhibit A2. However, his injury was merely his disappointment and the disruption to his personal life. The work was not taken from the employee. It was declined by the employer as a business decision.

4.3    Did the primary judge err in finding that removal of Mr Cole from the charter work was not an adverse action?

44    It is not in issue that discrimination between employees in the allocation of less congenial shifts or rosters, or the affording of fewer opportunities for overtime, can constitute an alteration in an employee’s position: see Independent Education Union of Australia v Canonical Administrators (1998) 87 FCR 49 at 68 (Ryan J).

45    However, Premier submits that the primary judge rightly held that removal of Mr Cole from the charter work was not an adverse action because it was no more than “the cancellation of a preliminary arrangement involving possible future action, with no alteration of position or role, or variation of the award or contract of employment”. This, submits Premier, is the importance of the finding below at [40] that the arrangement was for Mr Cole to undertake the work “unless he was instructed otherwise.” Thus, Premier argue that Mr Cole was never properly rostered the charter work, no “Charter Form Driver’s Instructions” was placed in his pigeonhole to confirm the work, and a legitimate direction was made for him to continue his usual work because the company had a scheduling problem and, as a consequence, did not perform the charter work. Accordingly, Premier submit that there was no adverse action because there was no change in Mr Cole’s rostering, no change in his position and no change in his role. Reliance was also placed by Premier on Mr Cole’s concession that he was given charter work in the following months when it was available.

46    The difficulty with Premier’s submission, in my view, is that the primary judge found that an arrangement was made for Mr Cole to undertake the work such that both Mr Cole and Premier were acting on the expectation that he would do so. That arrangement did not amount to a legally enforceable right and its non-fulfilment did not, in my view, constitute an “injury”. It may be this which lies behind the primary judge’s finding at [40] that Mr Cole’s “injury was merely his disappointment and the disruption to his personal life” (emphasis added) – albeit that that characterisation of the situation seems to be treated by his Honour as following from the fact that the work was not taken away from him but declined by the employer as a business decision. However, the question of whether there has been an “injury” in employment does not answer the question of whether removal of the charter work was an alteration in Mr Cole’s position to his prejudice.

47    In my view, the removal of the charter work did alter Mr Cole’s position to his prejudice and therefore constituted an adverse action within item 1(c) of the table in s 342(1) of the FW Act.

48    First, the primary judge found that an arrangement existed whereby Mr Cole was expected to be available for, and himself expected to perform, the charter work (at [37]). It is not necessary, as earlier explained, in the case of item 1(c), for a legal right to be impacted upon to the employee’s prejudice. It can suffice if action is taken which impacts on an employee’s expectations to her or his prejudice. For example, in Belandra the union argued that the employer, Belandra, had altered the position of its employees to their prejudice when it decided not to re-employ them despite its initial intentions to do so after a fire destroyed its premises. The argument was that the employees had an expectation just before that decision was made that they would be re-employed. When that expectation was not fulfilled by Belandra, their position was altered to their prejudice. The prejudice was said to lie in the elimination of the job security which they previously held. North J accepted that argument holding that, even if the employees had no legal right to re-employment, “the fact that their expectation of re-employment, raised by the employer, was disappointed amounted to an alteration of their positions to their prejudice” (at 187 [71]).

49    It is true, as Premier emphasise, that the arrangement with Mr Cole was subject to the caveat “unless he was instructed otherwise”: reasons below at [40]. However, any arrangement to undertake future work between an employer and employee which is not the subject of an unqualified obligation to perform would be implicitly subject to further or varied instructions by the employer. The proposition, therefore, that an advantage or arrangement necessarily falls outside item 1(c) because it is subject to change by the employer cannot be reconciled with the authority holding that item 1(c) of the definition of adverse action is a broad additional category extending beyond legal injury (see the cases discussed at [35] above). Accordingly, I do not consider that this feature of the arrangement with Mr Cole took it outside the concept of an arrangement which may, if adversely affected, fall within item 1(c).

50    Secondly, it does not necessarily follow from the finding that the removal of the charter work from Mr Cole was a consequence of Mr Powell’s decision to subcontract the work that the alteration to Mr Cole’s position falls outside item 1(c). While the question is ultimately one of degree, indirect or consequential alterations of position are caught by the definition in item 1(c) where the prejudicial alteration is real and substantial, rather than merely possible or hypothetical (see above at [37]). For example, in CPSU v Telstra, an instruction that employees on individual contracts be given more favourable treatment in the context of a “downsizing” process had not yet been acted upon. Nonetheless the Full Court held that the employment of employees on awards or certified agreements had become less secure in a real and substantial way because the instruction had been given. As a result, the Court held that their position had been altered to their prejudice: at 100 [19].

51    Against this, Premier seeks to draw an analogy between this case and the circumstances in the Qantas decision. In that case Tracey J held that the announcement of a business plan foreshadowing future action within approximately 12 months to transfer aircrafts to a subsidiary, Jetstar, was not an adverse action because it did not involve any present adverse affection of, or deterioration in, employee advantages. Specifically, at [26], his Honour held that the first difficulty confronting the Pilots Association was that, in February 2006, Qantas:

…did no more than announce an intention to provide four airbuses to Jetstar at times prior to March 2007 so that Jetstar could commence international operations and that those aircraft would not be crewed by the respondent’s employees, who in February 2006, flew them on domestic routes. No contemporaneous action to implement the announced decision was taken.

(Emphasis added.)

52    By contrast, Tracey J emphasised that in those authorities where an adverse action was found to have been taken, including CPSU v Telstra (where an instruction had been given) and Patrick Stevedores, the employer had not only announced the proposed action but had done something to implement the decision. As his Honour explained at [26]:

The various paragraphs in s 298K(1) [the predecessor to s 342(1), FW Act] which identify proscribed conduct speak in the active voice (‘dismiss’, ‘injure’, ‘alter the position’, etc). The employer must do something to prejudice an employee not merely foreshadow some future action which might or might not prove to be prejudicial.

53    Tracey J continued at [27] that:

Another reason why mere announcements of intended action are not comprehended by s 298K(1) is that there always exists the possibility that, for commercial, industrial or other reasons, a statement of intended action may never be acted on or might only be implemented in some modified form. Unless and until the decision is implemented no injury or alteration to prejudice to the position of employees will have occurred: cf BHP [v AWU at 108]. The change may prove beneficial. Any detriment giving rise to injury will only become identifiable when it is possible to make a comparison between the position of ascertainable employees in February 2006 and the position they will be in following the implementation of the decision: cf BHP [v AWU at 112]; Finance Sector Union of australia v Commonwealth Bank [(2005) 147 FCR 158] at 175; 56; Maritime Union of Australia v Geraldton Port Authority [(1999) 93 FCR 34] at 78; 287.

54    Thus, his Honour held at [30] that, in the same way that the conduct will prejudice employees in indirect or consequential ways only where the prejudicial alteration is real and substantial, “[a] fortiori, where an employer does no more than announce an intention to act in a particular way at sometime in the future and the consequences of that action are necessarily dependent on future decisions, it is hard, if not impossible to characterise the employer’s conduct as having ‘a real and substantial’ affect [sic] on any particular employees or group of employees.”

55    In my view, the decision in Qantas is distinguishable. In this case, Premier did not merely announce a future intention. Both Mr Powell and Mr Cole had the expectation that the work would be undertaken and acted on that expectation. The primary judge accepted that Mr Cole’s name was struck out on the office roster sheet for 10 August 2012, indicating that Mr Cole was not expected to be performing his usual route shift (at [40]). Mr Cole also recorded the job in his diary and made personal arrangements to be away from home for two nights (reasons below at [37]). That expectation was destroyed when the decision was taken to subcontract the charter work.

56    Thirdly, in my view, the failure to fulfil the expectation that Mr Cole would undertake the charter work altered his position to his prejudice given that Mr Cole (in common with other drivers) found that work more attractive and pleasant than usual route work and charter work provided the chance to earn additional income.

57    The decision to subcontract the charter work, with its consequential impact on Mr Cole’s position was, therefore, in my view an adverse action.

58    However, the reason why Premier decided to subcontract the charter work fell to be considered in the context of the reverse onus imposed on Premier by s 361(1) of the FW Act. It had no part in his Honour’s consideration of whether the action was adverse. To introduce the reasons for the action at this point undermines Parliament’s intention in enacting the statutory presumption in s 361 of the FW Act. It would require Mr Cole to prove the reasons for his employer’s decision for ending the arrangement for him to undertake the charter work, despite such matters being uniquely in Premier’s knowledge. Yet, as I recently explained in RailPro Services Pty Ltd v Flavel [2015] FCA 504 (RailPro) at [23]-[24], the rationale for the statutory presumption is to cast upon the employer/respondent the onus of proving on the balance of probabilities that which lies peculiarly within her or his own knowledge: General Motors Holden Pty Ltd v Bowling (1977) 51 ALJR 235 (Bowling) at 241 (Mason J) (approved in Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32; (2012) 248 CLR 500 (Barclay) at 520 [50] (French CJ and Crennan J), 527 [77] and 535-536 [105]-[106] (Gummow and Hayne JJ)). As the Explanatory Memorandum (HR) to the Fair Work Bill 2008 explained at 234 [1461]:

This has been a long-standing feature of the freedom of association and unlawful termination protections and recognises that, in the absence of such a clause, it would often be extremely difficult, if not impossible, for a complainant to establish that a person acted for an unlawful reason.

59    It follows with respect that the primary judge erred in conflating the question of whether there was an adverse action with the question of Premier’s reasons for the decision to remove the work from Mr Cole, as the TWU contends, and ought to have held that the decision to subcontract the work with the result that the expectation that Mr Cole would undertake that work was destroyed, constituted an adverse action under the FW Act.

4.4    Did the primary judge err in finding that the removal of the roster system was not an adverse action?

60    On the question of whether the removal of the roster sheet system constituted an adverse action, the primary judge found that:

43.    The undisputed evidence was that vacant permanent rosters were allocated on the basis of seniority for many years. Mr Powell, for example, accepted in his evidence that the seniority system applied strictly from at least 1983 until at least 2011. Mr King understood that the seniority system applied until August 2012. The system operated by use of a roster sheet which permitted drivers to express interest in vacant rosters which were more attractive. It is also undisputed that, even if a strict seniority system was not in place, the vacant roster sheet system continued until it was removed in early August 2012. I also accept that seniority remained a significant factor in allocating rosters up to August 2012. At its highest, Premier suggested that seniority was given “lesser emphasis” after 2011.

(Emphasis added.)

61    His Honour concluded that no adverse action was proved:

44.    Although the TWU claimed otherwise, the removal of the roster sheet did not destroy the capacity of drivers to be informed of the existence of a vacant roster and to have the opportunity to express an interest in taking over the roster the driver considered to be more amenable or attractive (in type of work, hours or duration). Neither did the removal of the roster sheet system prevent seniority being given any weight in the allocation of rosters. Drivers would become aware of a vacant roster when a driver’s employment ceased. Drivers were not prevented from expressing an interest in a vacant roster. In both respects, the removal of the roster sheet system simply required drivers to be more proactive in seeking to take over a vacant roster. In my view, this was not adverse action for the purposes of s.342 of the Fair Work Act.

62    The TWU submitted that the primary judge ought to have found that the removal of the roster sheet system constituted adverse action in two respects:

(a)    the removal of the roster sheet “prevented” drivers from being informed of the existence of a vacant permanent roster and to have a structured opportunity to express an interest in taking over the roster the driver considered to be more amenable or attractive (in type of work, hours or duration); and

(b)    while seniority remained the “dominant factor” in allocating rosters up to August 2012, the removal of the roster sheet system “prevented” seniority being given weight in allocation of rosters because drivers were not even permitted to express an interest in a vacant permanent roster.

63    As to the first alleged impact, the TWU rely upon evidence of Mr Cole and Mr Johnson, and submit that that evidence refuted the proposition that drivers would generally become aware of vacant shifts in the absence of the ‘roster sheet’ system. Specifically, the TWU relies upon Mr Cole’s evidence which is conclusory in nature that “[t]he impact of removing the rosters from the wall is that the drivers do not have the opportunity to express an interest in a run that has become available for reallocation”. Otherwise the evidence of Mr Cole and of Mr Johnson on which TWU relied on this issue on appeal was concerned with the question of seniority.

64    However this was not the only evidence relevant to this issue. In particular, as Premier submit, Mr Powell gave evidence that:

Since February 2011, weekend overtime shifts, which were vacant, required a driver to come into the office and request to be allocated to that vacant shift by myself. The reason for this protocol came about because some drivers who would sign for a vacant weekend shift and then within a short period of time hand the voluntary weekend overtime shift back. The process needed some control to ensure that shifts were completed.

65    He continued, saying that:

…the process introduced by me to ask the volunteering drivers to come into the office has been a very successful way to control the process of overtime and has allowed greater flexibility for both drivers and the Company.

66    Furthermore, as Premier contend, it cannot be ignored that the whole workforce was in the one location which, it can reasonably be inferred, facilitated the capacity for drivers through their discussions in the yard to learn about vacant rosters and shifts. In these circumstances, I do not consider that his Honour erred in rejecting the proposition that removal of the roster sheet system had “prevented” drivers from being informed about, and expressing an interest in taking over, vacant rosters and that that action was therefore adverse.

67    As to the question of seniority, I note first that the submissions for TWU misstate the finding of the primary judge. His Honour found only that seniority “remained a significant factor in allocating rosters up to August 2012” (emphasis added), and not that it was “the dominant factor”. Furthermore, in rejecting TWU’s submission that Premier did not advance any reason why the vacant roster sheet was removed in August 2012, the primary judge apparently accepted the evidence of Mr King “that he was opposed to the use of seniority as the sole or dominant criterion for the allocation of vacant rosters and was concerned that the vacant roster sheet system was a hangover from the past” (at [45]).

68    The finding by the trial judge that removal of the roster sheet from the wall did not prevent seniority being taken into account in the allocation of rosters received ample support in the evidence. It is true that Mr Cole and Mr Johnson gave evidence that, since removal of the roster sheet from the wall, vacant runs were being allocated out of order of seniority. However, in line with the finding by the primary judge, Mr Powell gave evidence denying that taking down of the roster sheet impacted on seniority, explaining that:

Seniority has always been a consideration in allocating shifts but it has never been the panacea for determining which employee is allocated to relevant rosters.

69    This accords with the primary judge’s finding that the seniority remained significant, and his apparent acceptance at [43] and [45] of Mr King’s evidence as to the reasons why seniority was given a lesser emphasis after 2011 when allocating work to drivers as “a hangover from the past”. In this regard, Mr Powell gave evidence that Premier had previously lost employees because of the greater need for flexibility in rostering, giving examples of an employee who wished to care for elderly parents and requested a move to more regular day shifts as opposed to evening shifts, and another employee who requested a move to days from later evening finishes so as to see more of his young children. As this also indicates, the change in emphasis was one that prevented possible discrimination against women and others such as drivers with young families. As such, it is difficult to characterise the move away from a system of strict seniority (even if it ever truly existed) as creating a disadvantage or prejudicing employee’s position in any relevant way.

70    Finally, the TWU contended on appeal that the disadvantage lay in the removal of a system which permitted all drivers to know not only that there was a permanent roster available, but also who had put their names up in a transparent way which would allow them to assess the fairness or otherwise of the way in which Premier allocated drivers to vacant rosters. However, as Premier submitted, this was not the case pleaded or run by the TWU at trial. In the circumstances, therefore, TWU cannot be permitted as a matter of fairness to raise the new factual contention on appeal: Coulton v Holcombe (1986) 162 CLR 1 at 7-8 (Gibbs CJ, Wilson, Brennan and Dawson JJ).

71    Given these matters, I can see no basis for the complaint that his Honour erred in finding that the removal of the vacant permanent roster sheets was not an adverse action. It follows that it is unnecessary to consider the correctness of his Honour’s findings in obiter on the alternative assumption that removal of the roster sheets constituted an adverse action.

5.    REASONS FOR THE ADVERSE ACTIONS IN SUBCONTRACTING THE CHARTER WORK

5.1    The principles by which it is determined whether an employer took adverse action “because of” a proscribed reason and the statutory presumption

72    As earlier mentioned, proof of a proscribed reason for taking an adverse action is assisted by the presumption contained in s 361(1) in Part 3-1 of the FW Act which provided at the relevant time that:

If:

(a)    in an application in relation to a contravention of this Part, it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and

(b)    taking that action for that reason or with that intent would constitute a contravention of this Part;

it is presumed, in proceedings arising from the application, that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise.

73    As such, it fell upon Premier to rebut the presumption that it took that action because Mr Cole and other TWU member/employees had a workplace right. Nor, as the TWU submit, would it suffice for Premier to establish that the adverse action was taken for another operative reason unless the proscribed reason was not also disproved. As mentioned, it is sufficient by virtue of s 360 of the FW Act if one of the reasons for taking the adverse action was (with the assistance of the presumption in s 361) a proscribed reason under that Act. As Mason J explained in Bowling at 241, the consequence of the statutory reverse onus is that, in order to succeed, the employee is not bound to adduce evidence that the employer was actuated by the reason alleged, but is entitled to succeed if the evidence was consistent with the hypothesis that the employer was so actuated and that hypothesis is not displaced by the employer.

74    I recently summarised the relevant principles by which it is determined whether an employer took adverse action against an employee for a proscribed reason under ss 340(1) and 351(1) in RailPro as follows.

81.    First, it follows from the use of the word “because” in (relevantly) ss 340(1) and 351(1) that the central question is “why was the adverse action taken?”: Barclay at 517 [44] (French CJ and Crennan J (with whose reasons Gummow and Hayne JJ were in general agreement at 525 [71])) and 534 [101] (Gummow and Hayne JJ); Construction , Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2014] HCA 41; (2014) 88 ALJR 980 (CFMEU v BHP) at 982 [7] (French CJ and Kiefel J) and 993 [85] (Gageler J); see also by analogy Purvis v New South Wales [2003] HCA 62; (2003) 217 CLR 92 (Purvis) at 163 [236] (Gummow, Hayne and Heydon JJ).

82.    Secondly, this is a question of fact which requires a consideration of the decision-maker’s “particular reason” for taking the adverse action by reason of s 361(1) of the FW Act (Barclay at [41]-[42] and [44]-[45] (French CJ and Crennan J)). The question therefore focuses upon the actual reason or reasons which motivated the decision-maker and not upon subconscious reasons or motivations.

83.    As such, direct evidence of the decision-maker as to her or his reasons is relevant and, in general, necessary, to discharge the statutory presumption in s 361 of the FW Act although whether the presumption is in fact discharged will turn upon an assessment of all of the facts and circumstances and available inferences: CFMEU v BHP at 982-983 [7]-[8] (French CJ and Kiefel J). That is not to say that the task is to identify objectively ascertained reasons. That description would be misleading and risk the Court substituting its own view, rather than making a finding as to the true reason of the decision-maker: CFMEU v BHP at 983 [9] (French CJ and Kiefel J); Barclay at 540-541 [121] and 541 [126] (Gummow and Hayne JJ). Rather, as French CJ and Crennan J in Barclay explained at [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. (footnotes omitted)

84.    Similarly, Gummow and Hayne JJ explained in [Barclay] at 542 [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.

85.    Thirdly, the proscribed reason need not be the sole reason by virtue of s 360 of the FW Act. Nor need it be the dominant reason: [Barclay] at 535 [103]-[104] (Gummow and Hayne JJ). Conversely, it is not sufficient that the proscribed reason merely entered into the employer’s mind: Bowling at 239 (Gibbs J (concurring with Mason J)) and 241 (Mason J (with whose reasons Stephen and Jacobs JJ also agreed)), applied by analogy in Barclay at 523 [62] (French CJ and Crennan J) and 535 [104] (Gummow and Hayne JJ).

86.    Rather, the reason must be “a substantial and operative factor” in the employer’s reasons for the adverse action: ibid. …

(Emphasis in the original.)

75    Finally, and of particular relevance for the present case, the High Court in Barclay and CFMEU v BHP rejected the proposition that the employer must prove that the reasons for the adverse action were entirely dissociated from the employee’s union activities in order to discharge the onus of proof under s 361 of the FW Act: see further at [85]-[86] below.

5.2    Did the primary judge err in finding that Premier had not discharged the onus of establishing that the adverse action in subcontracting the charter work was not undertaken for a proscribed reason?

76    After referring to the authorities, the primary judge at [54] posed the question of determining whether the action was undertaken for a proscribed reason as:

…whether, if adverse action had been proved on the evidence as a whole, Premier has demonstrated that the reasons for Mr Cole being removed from the charter work between 12 and 15 August 2012 and the removal of the roster sheets were dissociated from and did not include that Mr Cole had engaged in an industrial activity by distributing the form to check contact details of members and encouraging members to support possible protected industrial action and that the members of the TWU were contemplating taking protected industrial action.

(Emphasis added.)

77    The primary judge then identified a number of aspects of the evidence requiring particular consideration, including the following.

(a)    The objective evidence indicates that Mr Powell and Mr King were made aware that Mr Cole had circulated the TWU form to check contact details of members and was encouraging drivers to support protected industrial action shortly before the charter work was removed (at [55]).

(b)    Mr Powell did not deny Mr Cole’s evidence that Mr Cole told him on 7 August 2012 that he was circulating a petition in relation to protected industrial action, and the primary judge found Mr King was aware of Mr Cole’s action on or before 9 August 2012 (at [56]).

(c)    Mr King and Mr Powell also had reason to have serious concerns about the impact of drivers taking protected industrial action on the ability of the business to meet its contractual obligations, and on its reputation and revenue, and therefore had reason to take action to discourage the taking or encouragement of industrial action (at [57]).

(d)    For reasons set out at [59] in the court below, the primary judge preferred Mr Cole’s evidence over that of Mr Powell as to the content of the conversation between them on 9 August 2012 and therefore accepted at [60] that Mr Powell told Mr Cole that:

Kingy is not happy about the petition and that you are causing trouble. You won't be doing the charters because Kingy's not happy and I'm giving it to a bloke from Nowra and a bloke from Kiama because I have blokes in those yards to do work and they will do it from now on if you're going to continue to cause trouble.

78    As to the evidence led by Premier, the primary judge found that:

61.    While the evidence put forward by Premier to establish an alternative reason for the conduct is persuasive in terms of the real reason, it is not persuasive in terms of the reason communicated to Mr Cole. The explanation now given by Mr Powell for withdrawing the offer made to Mr Cole is because of concerns about the availability of drivers due to drivers being absent on sick leave or workers compensation. That explanation was challenged by the TWU for reasons including:

a)    Mr Powell asserts that a number of drivers were absent on long term sick leave or worker compensation. Mr Powell refers in his evidence to Steve Spicer, Glen Townsend, Robert Hodgson, Trevor Munn and Paul Gaffney. However, each of those individuals had been absent from work for an extended period of time and were not recorded on the daily rosters. That means that Mr Powell was well aware that each of those drivers would be absent when he offered Mr Cole the roster work on 7 August 2012.

b)    Mr Powell also asserts that a number of drivers called in sick on 10, 13, 14 and 15 August 2012. However, it is clear from the evidence that the drivers called in sick on the day they were otherwise required to work. Thus, Mr Powell did not become aware of drivers calling in sick until 10 August 2012 at the earliest after he had already informed Mr Cole (on the afternoon of 9 August 2012) that he would not be doing the charter work.

c)    The TWU submits that nothing changed in the period between 7 August 2012 (when the charter work was offered to Mr Cole) and 9 August 2012 (when the offer was withdrawn) in relation to the availability of drivers to fulfil the company's regular route services. I do not accept that. It is highly improbable in my view that Premier would turn away valuable work just because of Mr King’s annoyance with Mr Cole. But while I am prepared to accept that there was an operational reason for turning away that work, it suited the purpose of Mr King to send a message to Mr Cole that his conduct had been a factor.

(Emphasis added.)

79    The primary judge concluded at [62] that:

I find that, while there was an operational reason for the subcontracting decision, the message delivered to Mr Cole by Mr Powell on behalf of Mr King was intended to, and did, create the impression in Mr Cole’s mind that his conduct had been a factor. For these reasons, the Court could not be satisfied that the reason for not confirming Mr Cole to undertake the charter work was dissociated from and did not include that Mr Cole had participated in an industrial activity.

(Emphasis added.)

80    The finding at [62], which applies the test formulated by the primary judge at [54], is challenged on Premier’s notice of contention. Premier contend that there is an apparent tension between, on the one hand, that finding and, on the other hand, the strength of the findings by the primary judge at [39] (picked up at [62]) that “[t]he operational reason” was the shortage of drivers and the need to ensure that Premier would cover its regular runs. In particular, Premier rely upon the strength and tenor of his Honour’s findings at [39] in rejecting the TWU’s challenge to the credibility of that evidence because:

The fact is that Premier lost income by subcontracting the charter work. It is highly improbable that Premier would turn away work if it had drivers available to do it. The decision to subcontract the work may have been excessively cautious but it is not credible that it was a decision to withdraw the work specifically from Mr Cole.

(Emphasis added).

81    Thus at [40], his Honour concluded that “[t]he work was not taken from the employee. It was declined by the employer as a business decision” (emphasis added).

82    I understand the reference to “withdraw[ing] the work specifically from Mr Cole” and “taken from the employee" in these passages to refer to an intention (which his Honour found did not exist) to subcontract that work so that Mr Cole could not perform it.

83    Those findings would not seem to leave any room for a finding that the withdrawal of work from Mr Cole because of the industrial action formed any substantial and operative part of Premier’s reasons. In my view, they constitute a positive finding which, if correct, should have led the primary judge to find that the presumption in s 361 had been displaced.

84    In my view, the apparent tension in the primary judge’s reasons arises, with respect, because his Honour applied the wrong test despite correctly stating the test at [33]. At the critical point in his reasoning at [62], his Honour added to the question of whether (including by reason of the statutory presumption) the operative reasons “included” the proscribed reasons, the requirement that the action be “dissociated from” Mr Cole’s participation in an industrial activity. His Honour then treated the message delivered to Mr Cole by Mr Powell after the decision was made as establishing that connection, despite the finding rising no higher than that “it suited the purpose of Mr King to send a message to Mr Cole that his conduct had been a factor”. That is not a finding as to the reasons for the decision to subcontract the charter with the result that it was removed from Mr Cole’s roster; nor is it a finding that the statutory presumption has not been displaced because of inferences that might be drawn from that conversation. It is a finding only of how Mr King, through Mr Powell, used the removal of Mr Cole from the charter work as a means of sending Mr Cole a message about his conduct.

85    The requirement which the primary judge added to the statutory test cannot, with respect to the TWU’s submissions, be overlooked. In my view the approach adopted below runs counter to the decisions of the High Court in Barclay and CFMEU v BHP. It imports into the equation, the requirement rejected in those decisions that the employer must prove that the reasons for the adverse action were entirely dissociated from the employee’s union activities in order to discharge the statutory onus of proof under s 361 of the FW Act. As French CJ and Crennan J, for example, held in Barclay at 523 [62], it is an error:

… to treat an employee's union position and activity as necessarily being a factor which must have something to do with adverse action, or which can never be dissociated from adverse action. It is a misunderstanding of, and contrary to, Bowling to require that the establishment of the reason for adverse action must be entirely dissociated from an employee's union position or activities. … The onus of proving that an employee's union position and activity was not an operative factor in taking adverse action is to be discharged on the balance of probabilities in the light of all the established evidence.

86    This approach was followed in CFMEU v BHP. In that case, the employee, who was a member of the CFMEU, had participated in a lawful protest organised by the CFMEU and had held a sign which read “No principles SCABS No guts”. The general manager of the mine, Mr Brick, gave evidence that the employee had been dismissed for offensive conduct in violation of BHP’s workplace conduct policy of which the employee was aware, that he had demonstrated arrogance when confronted with the objections to his conduct, and that Mr Brick regarded the conduct as antagonistic to the culture which he was endeavouring to develop at the mine. The High Court (in line with the Full Court) held that it was wrong to reason from the existence of a connection between the adverse action and the industrial activity, that the industrial activity must be taken to be a reason for the adverse action. As French CJ and Kiefel J explained at 984 [19], “[s]ection 346 does not direct a court to inquire whether the adverse action can be characterised as connected with the industrial activities which are protected by the Act. It requires a determination of fact as to the reasons which motivated the person who took the adverse action.”

87    The TWU submits, however, that the finding that there was an “operational reason” for the decision to “reallocate” the charter work was in error because it was “based upon the proposition that the respondent would not have elected to have ‘lost income’ by subcontracting the work without an operational reason. That finding cannot stand having regard to the fact that the other companies involved were operated by the respondent.” While, as Premier submit, this was not a ground of appeal, I consider that it is fairly raised in response to Premier’s notice of contention.

88    However, while Mr Powell arranged for Nowra Coaches Pty Ltd and Kiama Coaches Pty Ltd to complete the charter, these are separate companies as the invoices to Premier from Nowra and Kiama to Premier demonstrate and as Premier submits. Nor, as Premier also contends, was any evidence led to suggest that Nowra or Kiama were not paid, or that the transaction was “some sort of sham”.

89    Moreover, while the primary judge found that the decision to subcontract may have been “excessively cautious”, nonetheless, as his Honour pointed out, Premier’s regular runs for the NSW Government constituted 95% of its business, lending weight to Premier’s evidence that Mr Powell was concerned to ensure that Premier could cover its regular runs in circumstances where he considered that there was a shortage of drivers (at [39]).

90    Finally, it must also be borne in mind that a finding as to a state of mind, such as a finding that action was undertaken for a particular reason, may attract the same restraint on appeal as applies in the category of case as findings which depend upon the view taken of conflicting testimony: Barclay at 544 [141] (Heydon J) (citing with approval Nocton v Lord Ashburton [1914] AC 932); see also Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 (Fox v Percy) at 128 [28]-[29] (Gleeson CJ, Gummow and Kirby JJ) as to the approach to findings choosing between conflicting testimony. This approach is underpinned by a continuing appreciation of the advantage which the primary judge may enjoy. As Gleeson CJ, Gummow and Kirby JJ held in Fox v Percy at 125-126 [23], there are “natural limitations” in the appellate court proceeding wholly or substantially on the court record even though it is obliged to give the judgment which it considers ought to have been given at first instance. As their Honours continued:

These limitations include the disadvantage that the appellate court has when compared with the trial judge in respect of the evaluation of witnesses’ credibility and of the ‘feeling’ of a case which an appellate court, reading the transcript, cannot always fully share. Furthermore, the appellate court does not typically get taken to, or read, all of the evidence taken at trial. Commonly, the trial judge therefore has advantages that derive from the obligation at trial to receive and consider the entirety of the evidence and the opportunity, normally over a longer interval, to reflect upon that evidence and to draw conclusions from it, viewed as a whole.

See also State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) [1999] HCA 3; (1999) 73 ALJR 306 at [90] (Kirby J).

91    Nor can it be assumed that every consideration influencing the primary judge’s assessment of credibility, including her or his impressions of the witness, will find expression in the reasons. In discharging the appellate function, account should also be taken for unexpressed considerations and impressions: Fox v Percy at 132 [41] (Gleeson CJ, Gummow and Kirby JJ). As Lord Hoffmann explained in Biogen Inc v Medeva PLC [1996] UKHL 18; [1997] RPC 1 at 45 [54] (Lord Goff of Chieveley, Lord Browne-Wilkinson, Lord Mustill and Lord Slynn of Hadley agreeing):

The need for appellate caution in reversing the judge's evaluation of the facts is based upon much more solid grounds than professional courtesy. It is because specific findings of fact, even by the most meticulous judge, are inherently an incomplete statement of the impression which was made upon him by the primary evidence. His expressed findings are always surrounded by a penumbra of imprecision as to emphasis, relative weight, minor qualification and nuance (as Renan said, la vérité est dans une nuance), of which time and language do not permit exact expression, but which may play an important part in the judge's overall evaluation.

92    In the present case, and having regard to those advantages, I do not consider that the primary judge erred in concluding that the operative reason for Mr Powell’s decision to subcontract the charter work was the shortage of available drivers and the need to ensure that Premier could cover its regular runs, and not Mr Cole’s industrial action, despite the message conveyed to Mr Cole by Mr Powell. In those circumstances I consider that Premier discharged its onus of proof under s 361(1) of the FW Act.

5.3    The ruling as to the evidence of Mr Hayhurst

93    By its notice of contention, Premier contends that the Court below erred in refusing to allow it to answer the evidence of Mr Cole at the trial. Despite the generality of the ground of contention, it is apparent from Premier’s submissions that the evidence to which the ground of contention refers is the affidavit of Mr Hayhurst sworn on 12 November 2013, being the second day of the trial. Premier sought leave that morning to rely upon this evidence on the basis that it responded to oral evidence of Mr Cole that he had a conversation in Mr Hayhurst’s presence which, it was said, had not been foreshadowed in the affidavits filed before trial in accordance with the court orders.

94    The primary judge refused to admit the evidence, ruling that:

I’m inclined to the view that it would necessarily and unfairly prolong the proceedings to introduce an additional witness at this late stage. I would have thought the matters that Mr Hayhurst deals with would be matters known to Mr Powell who we’re about to hear from….

What I propose to do is to give you the opportunity when we are receiving Mr Powell’s evidence for you to put what Mr Hayhurst says to him and give him the opportunity to correct his affidavit to the extent that there’s any contradiction and to augment it to the extent that there’s a significant silence.

95    Premier contends that, if admitted, Mr Hayhurst’s evidence would have corroborated Mr Powell’s evidence as to the content of the conversation. The point was said to be material because Mr Powell and Mr Cole gave conflicting accounts of the content of the conversation, with the primary judge finding at [59]-[60] that Mr Powell’s evidence could not be preferred to that of Mr Cole’s. This, in turn, was said to form part of the primary judge’s reasons for finding against Premier when addressing in obiter Premier’s reasons for removing the charter work from Mr Cole.

96    No reasons are given by Premier as to why this ruling was in error. Given the late stage at which the additional evidence was sought to be led and the orders made for the filing of affidavit evidence in advance, it is not sufficient to say that the evidence was relevant and admissible. In this regard, evidence as to the conversation between Mr Cole and Mr Powell had been the subject of affidavit evidence well before trial. Furthermore, given his Honour’s ruling granting leave to Premier to lead oral evidence from Mr Powell on the issue, no unfairness is apparent.

97    The short point, however, is that the conversation which his Honour addresses at [59]-[60] of his reasons occurred on 9 August 2012, during the course of which Mr Powell told Mr Cole why he was being removed from undertaking the charter work. The conversation to which Mr Hayhurst deposed in his affidavit occurred earlier on 6 August 2012, being the conversation where Mr Cole was requested to undertake the charter work. Mr Hayhurst’s proposed evidence did not address the meeting on 9 August 2012. Nor did the primary judge take into account his findings with respect to the conversation on 6 or 7 August 2012 in preferring the evidence of Mr Cole as to the content of the conversation on 9 August 2012. In this regard, I note that the primary judge did not reject Mr Powell’s account of the conversation on 6 or 7 August 2012 on credibility grounds but made a finding based on ‘common ground’ in the evidence of Mr Cole and Mr Powell (see at [40] above).

6.    CONCLUSION

98    For the reasons set out above, the appeal is dismissed. As requested by the parties, costs are reserved in order to afford the parties the opportunity to make submissions.

Associate:

Dated:    29 June 2015