FEDERAL COURT OF AUSTRALIA

Fair Work Ombudsman v Australian Workers’ Union [2017] FCA 528

ORDERS

THE COURT ORDERS THAT:

1.    The respondents’ Amended Interlocutory Application dated 17 May 2016 is dismissed.

2.    The applicant have liberty to apply for an order for costs within 7 days hereof.

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

REASONS FOR JUDGMENT

BROMBERG J:

1    The applicant (“FWO”) is a regulator with authority to sue in relation to alleged contraventions of various provisions of the Fair Work Act 2009 (Cth) (“FW Act”). The respondents are the Australian Workers’ Union (“AWU”) and that organisation’s Victorian Branch Secretary (“Davis”). The conduct of Davis and another person (“Wood”), said to have been taken against two members of the AWU (“Dunton” and “Haworth”), is alleged by the FWO to constitute conduct of the AWU in contravention of ss 340 and 346 and also ss 343 and 348 of the FW Act. Davis is sued as an accessory to the conduct of the AWU. The FWO asserts that pursuant to s 550 of the FW Act, Davis was involved in the contraventions alleged against the AWU.

2    Broadly stated, the FWO alleges that “unjustifiable disciplinary action” ([40] of the Amended Statement of Claim (“ASOC”)) was taken by the AWU against Dunton and Haworth, because as employees of Orica Australia Pty Ltd (“Orica”) they did not participate in protected industrial action organised by the AWU and taken by other employees of Orica on 3 March 2015.

3    By not participating in the protected industrial action, the FWO asserts that Dunton and Haworth exercised a workplace right within the meaning of s 341 of the FW Act (“workplace right”) and also engaged in industrial activity within the meaning of s 347(b) of the FW Act (“s 347(b) industrial activity”) and did not engage in industrial activity within the meaning of s 347(f) of the FW Act (“s 347(f) industrial activity”).

4    The FWO alleges that the “unjustifiable disciplinary action” was adverse action within the meaning of s 342 of the FW Act, taken by the AWU against Dunton and Haworth for reasons including that Dunton and Haworth had exercised the workplace right. That, in each case, is alleged to constitute a contravention of s 340 of the FW Act because pursuant to that provision “[a] person must not take adverse action against another person … because the other person … has … exercised a workplace right …”.

5    Additionally and in breach of s 346 of the FW Act, the FWO asserts that the “unjustifiable disciplinary action” was adverse action taken against Dunton and Haworth by the AWU for reasons including that each engaged in the s 347(b) industrial activity or did not engage in the s 347(f) industrial activity. Section 346 relevantly provides that “[a] person must not take adverse action against another person because the other person … engages in industrial activity within the meaning of paragraph 347 … (b) … or … does not engage in industrial activity within the meaning of paragraphs 347(c) to (g)”. It is uncontroversial that the causal link mandated by the word “because” in ss 340 and 346 is satisfied if the workplace right or industrial activity is an operative reason for the adverse action: it need not be the only reason (s 360).

6    Further, the FWO asserts that by imposing the “unjustifiable disciplinary action”, the AWU contravened s 343 of the FW Act by taking or threatening to take action with intent to coerce Dunton and Haworth’s future exercise or non-exercise of the workplace right and contravened s 348 of the FW Act by taking that action with intent to coerce Dunton and Haworth to engage in industrial activity in the future.

7    Sections 343 and 348 of the FW Act provide:

Section 343

Coercion

(1)    A person must not organise or take, or threaten to organise or take, any action against another person with intent to coerce the other person, or a third person, to:

(a)    exercise or not exercise, or propose to exercise or not exercise, a workplace right; or

(b)    exercise, or propose to exercise, a workplace right in a particular way.

Note:    This subsection is a civil remedy provision (see Part 4-1).

(2)    Subsection (1) does not apply to protected industrial action.

…

Section 348

Coercion

A person must not organise or take, or threaten to organise or take, any action against another person with intent to coerce the other person, or a third person, to engage in industrial activity.

Note: This section is a civil remedy provision (see Part 4-1).

8    The AWU and Davis (unless the context otherwise provides, “AWU”) seek the summary dismissal of the proceeding. In summary, they contend that:

(a)    the facts pleaded in the ASOC are, as a matter of law, incapable of constituting either "adverse action" or the "threatening" of adverse action within the meaning in s 342 of the FW Act;

(b)    the facts pleaded in the ASOC are incapable of constituting action with intent to coerce Dunton and Haworth to engage in protected industrial action or to engage in industrial activity within the meaning in s 343 or s 348 of the FW Act, in circumstances where the ASOC does not allege any protected industrial action or relevant industrial activity being on foot or in prospect; and

(c)    in circumstances where the alleged liability of the AWU is derivative from the alleged conduct of Davis as a primary perpetrator, the applicant has no reasonable prospect of establishing that Davis was involved in the alleged contraventions of the FW Act by the AWU pursuant to s 550 of the FW Act because such a cause of action is not available at law.

9    Given the AWU’s reliance on the meaning of adverse action, it is necessary to refer to s 342 where that phrase is defined. Section 342(1) sets out a table which describes the circumstances in which a person takes adverse action against another person. Item 7(d) within that table is here relevant. It provides that in relation to a member of an industrial association, the industrial association takes adverse action if the association:

imposes a penalty, forfeiture or disability of any kind on the member (other than in relation to money legally owed to the association by the member).

Section 342(2) provides that adverse action includes “threatening to take action covered by the table” in s 342(1).

10    As will become apparent ss 363(1) and 793(1) are also relevant. It is convenient to set out the terms of those provisions here:

363(1) 

For the purposes of this Part, each of the following is taken to be action of an industrial association:

(a)    action taken by the committee of management of the industrial association;

(b)    action taken by an officer or agent of the industrial association acting in that capacity;

(c)    action taken by a member, or group of members, of the industrial association if the action is authorised by:

(i)    the rules of the industrial association; or

(ii)    the committee of management of the industrial association; or

(iii)      an officer or agent of the industrial association acting in that capacity;

(d)    action taken by a member of the industrial association who performs the function of dealing with an employer on behalf of the member and other members of the industrial association, acting in that capacity;

(e)    if the industrial association is an unincorporated industrial association that does not have a committee of management—action taken by a member, or group of members, of the industrial association.

…

Conduct of a body corporate

793(1)

Any conduct engaged in on behalf of a body corporate:

(a)    by an officer, employee or agent (an official ) of the body within the scope of his or her actual or apparent authority; or

(b)    by any other person at the direction or with the consent or agreement (whether express or implied) of an official of the body, if the giving of the direction, consent or agreement is within the scope of the actual or apparent authority of the official;

is taken, for the purposes of this Act and the procedural rules, to have been engaged in also by the body.

…

Summary dismissal: relevant principles

11    The AWU and Davis rely on s 31A of the Federal Court of Australia Act 1976 (Cth) as well as r 26.01(1) of the Federal Court Rules 2011 (Cth). Section 31A provides relevantly as follows:

…

(2)    The Court may give judgment for one party against another in relation to the whole or any part of a proceeding if:

(a)    the first party is defending the proceeding or that part of the proceeding; and

(b)    the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.

(3)    For the purposes of this section, a defence or a proceeding or part of a proceeding need not be:

(a)    hopeless; or

(b)    bound to fail;

for it to have no reasonable prospect of success.

…

12    It is not necessary to set out r 26.01(1). The terms of that rule are relevantly identical to s 31A save that the terms of s 31A(3) are not there included.

13    The legal principles relating to summary judgment are uncontroversial. The central question raised by the summary judgment application is whether or not the FWO has a reasonable prospect of successfully prosecuting the proceeding or a part of it.

14    In Spencer v Commonwealth (2010) 241 CLR 118, after reviewing the history of s 31A and the authorities dealing with analogous provisions in other jurisdictions, French CJ and Gummow J said this (at [25], emphasis added):

Section 31A(2) requires a practical judgment by the Federal Court as to whether the applicant has more than a "fanciful" prospect of success. That may be a judgment of law or of fact, or of mixed law and fact. Where there are factual issues capable of being disputed and in dispute, summary dismissal should not be awarded to the respondent simply because the Court has formed the view that the applicant is unlikely to succeed on the factual issue. Where the success of a proceeding depends upon propositions of law apparently precluded by existing authority, that may not always be the end of the matter. Existing authority may be overruled, qualified or further explained. Summary processes must not be used to stultify the development of the law. But where the success of proceedings is critically dependent upon a proposition of law which would contradict a binding decision of this Court, the court hearing the application under s 31A could justifiably conclude that the proceedings had no reasonable prospect of success.

15    The emphasised passage was adopted by a Full Court of this Court in Polar Aviation Pty Ltd v Civil Aviation Safety Authority (2012) 203 FCR 325 at [47] (Perram, Dodds-Streeton and Griffiths JJ). The guidance there given is to be understood with the cautionary observation that the power to dismiss an action summarily is not exercised lightly: Spencer at [60] (Hayne, Crennan, Kiefel and Bell JJ) and Danthanarayana v Commonwealth of Australia [2016] FCAFC 114 at [4] (Jagot, Bromberg and Murphy JJ).

16    In circumstances where, as here, the summary dismissal application concerns questions of statutory construction, the disposal of the application may require the Court to determine the proper construction of the provisions at issue and to decide whether the facts pleaded are capable of falling within the meaning of those provisions: Helal v McConnell Dowell Constructions Oust) Pty Ltd (2010) 193 FCR 213 at [13] (Ryan J). The Court retains a discretion not to decide difficult questions of law but to allow them to proceed to be determined at trial: Kowalski v MMAL Staff Superannuation Fund Pty Ltd (2009) 178 FCR 401 at [28], [31] (Spender, Graham and Gilmour JJ).

Adverse action claims (ss 340 and 346)

17    If the FWO has no reasonable prospect of establishing that the action of the AWU is capable of being adverse action, it is not in contest that so much of the proceeding as asserts a contravention of either s 340 or s 346 must be summarily dismissed.

18    It is necessary then to turn to the action pleaded by the ASOC in order to consider whether there is a reasonable prospect that that action will fall within the meaning of adverse action. It is accepted that for the purposes of a summary judgment application, the facts as pleaded must be taken at their highest. That is, on the presumption that the facts, as pleaded, will be fully established at trial: Ashby v Slipper (2014) 219 FCR 322 at [179] (Mansfield and Gilmour JJ). As earlier indicated, the action relied upon by the FWO is described in the ASOC as “unjustifiable disciplinary action”. That, in turn, is defined as a course of conduct taken by the AWU in the period 6 March 2015 to 2 September 2015 constituted by the following specified actions (at [23A] to [39A] of the ASOC):

(i)    A charge laid on or about 6 March 2016 by Wood under r 19(2) of the Rules of the AWU (“Rules”) against each of Dunton and Haworth (together “charges”) without prior notification to them and without Wood seeking an explanation from either of them as to why they each worked on 3 March 2015. It is alleged that the charges were laid in the absence of any proper basis for alleging that either Dunton or Haworth had committed any act or omission capable of amounting to misconduct for the purposes of 19(2) of the Rules, and for the purpose of punishing each of Dunton and Haworth for working their usual shifts and not participating in protected industrial action on 3 March 2015;

(ii)    A letter of 16 March 2015 written by Davis to each of Dunton and Haworth:

(a)    Informing each of them that Wood, on behalf of the AWU had charged them with “gross misbehaviour” and “failing to comply with any resolution or direction lawfully passed or given under any rule of the union after having notice thereof”;

(b)    Summoning Dunton and Haworth to attend a meeting of the AWU’s Victorian Branch Executive (“Committee of Management”) on 13 April 2015;

(c)    Representing that the charges were a “very serious matter” and that if the charges were found to be sustained, the Committee of Management had a number of options available to it including a fine, suspension of membership and/or expulsion from the AWU;

(d)    It is alleged that the letter was issued in the absence of any proper grounds for alleging that either Dunton or Haworth engaged in gross misbehaviour within the meaning of rule 19(2)(h); in circumstances where there was no relevant or applicable resolution or direction lawfully passed or given under any rule for the purpose of rule 19(2)(b); and for the purpose of punishing each of Dunton and Haworth for working their usual shifts and not participating in protected industrial action on 3 March 2015.

(iii)    A letter and ballot to members of the Committee of Management, caused to be sent by Davis on or about 9 April 2015, seeking authorisation to investigate and hear the charges.

(iv)    A letter, sent or caused to be sent by Davis on or about 10 April 2015, declaring the ballot forwarded to members of the Committee of Management with 17 yes votes and nil no votes.

(v)    Text messages to Dunton and Haworth, sent by Davis on 14 April 2015, informing them that the 13 April 2015 meeting to which they had been summoned had been cancelled and that they would be contacted.

(vi)    A meeting on or about 29 April 2015, between Davis and Dunton and Haworth and another employee who had failed to participate in the protected industrial action and representations to Dunton and Haworth that:

(a)    the AWU had the power to take the action foreshadowed in the 16 March 2015 letters;

(b)    that each of the them remained subject to a fine or expulsion;

(c)    that they each remained the subject of charges of gross misbehaviour; and

(d)    the investigation would continue and Davis would make a determination.

(vii)        That as at 1 September 2015, Dunton and Haworth remained subject to the charges, the threat of a fine, suspension of membership or expulsion from the AWU and a continuing investigation by the AWU. As at that date, Dunton and Haworth had not been provided with information about the particulars or evidence relied upon in support of the charges, any information about the progress of the investigation and resolution of the charges after the 29 April 2015 meeting, any information about the proposed duration of the investigation, or any information as to when the investigation would be finalised and the charges finally determined.

19    The ASOC pleads that the conduct of Wood and that of Davis referred to above was, in each case, conduct of the AWU. It is also asserted that by the letter of 16 March 2015 Davis subjected each of Dunton and Haworth “to the threat of a fine, suspension of membership or expulsion from the [AWU]”.

20    It is necessary to appreciate that all of that conduct is pleaded as a single course of conduct and the subject of a single contravention of each of ss 340 and 346.

21    The ASOC also records that on or about 2 September 2015 a representative of the AWU wrote to the FWO advising that Davis had determined that the charges and summonses against Dunton and Haworth were ineffective and would not be further processed or pursued.

22    The other factual matter necessary for me take into account is rule 19 of the Rules pursuant to which the charges were purportedly made. There was no issue that the Court should have regard to that rule in determining this application.

23    It is not necessary to set out the terms of rule 19 which are quite extensive. It is sufficient for relevant purposes to note the following. Rule 19 is headed “Misconduct”. Rule 19 provides to a branch executive of the AWU the power to hear and determine charges under that rule. Rule 19(2) provides that “[a]ny member may charge any other member” with, relevantly, “failing to comply with any resolution or direction lawfully passed or given under any Rule” and “gross misbehaviour”. Rule 19(3) provides that any charge may be made orally or in writing and must be made to the National Secretary or a Branch Secretary. Such an officer, “subject to being satisfied as to the reasonableness of such charge”, may, or, in the case of the Branch Secretary so directed by the Branch Executive, must summons the member charged. The summons must be in writing and state the time and place of the hearing and give the name of the person laying the charge and the substance of the charge. The person charged must, “upon request”, be supplied with such further particulars as may be necessary to indicate the precise matters of the charge. Rule 19(4)–(6) deal with the hearing of a charge. Rule 19(7) deals with penalty and provides that “the relevant Tribunal” (National Conference, National Executive or Branch Executive) may, if satisfied that a charge is proven and subject to various qualifications, expel or suspend the member charged.

24    The allegation that the action relied upon by the FWO is adverse action is made at [42] of the ASOC in relation to Dunton. The pleading is relevantly in the same terms at [43] in relation to Haworth. The pleading at [42] states:

[42]    By reason of the unjustifiable disciplinary action, the [AWU] took adverse action within the meaning of section 342 of the FW Act against Dunton in that it:

(a)    imposed a disability upon Dunton; and/or

(b)    threatened to impose a penalty of a fine, suspension of membership or expulsion from the [AWU] upon Dunton; and/or

(c)     threatened to impose a disability upon Dunton.

25    I will address paragraph (a) of the pleading first. Its reference to the imposition of a “disability” seeks to bring the action relied upon by the FWO (“action”) within the terms of Item 7(d) of s 342(1) and in particular the words “imposes a … disability of any kind”.

Is there a reasonable prospect that a “disability of any kind” was imposed?

26    Much was said by the parties as to the meaning of the word “impose” in the context of the various specified disadvantages (“penalty, forfeiture or disability”) to which that verb is directed. The AWU contended that each of those disadvantages, when read with the verb “imposes”, envisages the imposition of some form of sanction by some authoritative process.

27    Reliance was placed on Linehan v The Australian Public Service Association (1983) 67 FLR 412 (Fox, Lockhart and Fitzgerald JJ), where a predecessor to Item 7(d), s 188(1)(e) of the Conciliation and Arbitration Act 1904 (Cth) (“s 188(1)(e)”), was considered. That provision relevantly provided:

(1)    An organisation

…

(e)    shall not impose or threaten to impose, a penalty, forfeiture or disability of any kind upon a member of the organisation by reason of the circumstance that the member has refused or failed to join in industrial action.

28    Linehan concerned the prosecution of a registered organisation where, following the charging of two members for failing to comply with a decision or directive to stop work, a Committee of Management of the organisation found each member guilty and fined one $10 and the other $20. Neither member paid the fine and no action was taken to recover the amount of any fine. It was in that context that a submission was made for the union that the word “impose” in s 188(1)(e) necessarily involved the recovery of a penalty and not just the decision to fine. That submission was rejected. Fitzgerald J (at 413) came to the view that imposition of a penalty occurred at the point of notification. At 424, Lockhart J observed that recovering a penalty or attempting to recover it does not necessarily fall within the notion of imposing a penalty, but found it unnecessary to decide whether a penalty is imposed at the time of notification of the resolution. On that question, Fox J relevantly said this (at 413):

The particular relevance of the question is whether, when s. 188(1)(e) uses the word “impose”, this implies the need for notification. It seems to me that the imposition of a penalty does not normally require either the sending or receipt of notification; but refers to the adjudicative act, and this creates the liability to pay the penalty. The context of s. 188(1) reinforces this conclusion in the present case.

29    The reference by Fox J to an “adjudicative act” was relied upon by the AWU for its contention that “imposes” as used in Item 7(d) “means to subject, by an act or decision of an authorised entity, to a sanction of some kind”.

30    I do not consider that the submission is assisted by Linehan. The reference made by Fox J to an “adjudicative act” was made in the particular factual context of that case and the issue there raised as to whether a penalty can be said to be imposed as at the time of decision or, alternatively, as at the time of notification. That the imposition of a penalty necessarily requires a prior decision says nothing to support the proposition that the decision needs to have been made by an “authorised entity”. In fact, Linehan stands for the proposition that an invalid decision to fix a penalty may nevertheless contravene s 188(1)(e) (at 414, 422 and 438). By implication, Linehan supports the proposition that whether a penalty is “imposed” is not dependent upon the validity of the decision to do so.

31    To my mind, and in relation to the issue here raised, not very much turns on the word “imposes”. In the context in which it is used in Item 7(d), it is at least arguable that it simply means to subject the member of the association to one or other of the disadvantages specified in the paragraph. It is the meaning and scope of those disadvantages and in particular “a disability of any kind” that is far more germane to the issue of construction here raised.

32    The AWU contended that the term “disability” must be construed in its statutory context and with its meaning coloured by the phrase “penalty, forfeiture or disability of any kind” and also the verb “imposes” which precedes it. It contended that each of the three words were intended to refer to a form of sanction and that each must be construed to have a distinct meaning, so that no word is superfluous, void or insignificant. Accordingly, the AWU’s submission construed “penalty” to mean pecuniary penalty and the word “forfeiture” to mean the loss of a right. The word “disability”, the AWU contended, should be construed to mean “inability or incapacity to do something”. The AWU also contended that the impositions dealt with by Item 7(d) were confined to those imposed on a member of the association in that person’s capacity as a member.

33    As I understand it, although not expressed in this way, the submission made by the FWO about the meaning of “disability of any kind” was put at two levels. At the broader level, the FWO contended that any form of prejudice, detriment or disadvantage constituted a “disability of any kind”. That phrase, so the FWO submitted, was like the phrase found in Item 1(c) of s 342(1), “alters the position of the employee to the employee’s prejudice”, which is intended as a “broad additional category of adverse action”: see Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (1998) 195 CLR 1 at [4]. Thus, bullying or harassment or having “charges hanging over their heads” was a “disability of any kind”.

34    I reject that contention. I do not consider it to be even arguably correct.

35    The words “of any kind” are not, as the submission of the FWO sought to suggest, applicable only to the word “disability” so as to create a broad additional category of adverse action. A plain reading of the provision suggests to me that the phrase was intended to apply equally to each of the words that precede it, including “penalty” and “forfeiture”. More importantly, I do not accept the FWO’s contention that those words extend the species of adverse action “beyond just an inability or incapacity to do something”. The phrase “of any kind” is not intended to extend the three kinds of disadvantage specified to include all kinds of disadvantage. What is intended is that any kind of disadvantage of the type specified, namely, any kind of penalty, forfeiture or disability falls within the scope of the provision.

36    That would be so even if it were the case that the phrase “any kind” only operated on the word “disability”. Further, the specification of disadvantage in Item 7(d) is quite particular. As the terms of the various paragraphs in Column 2 of Items 1 to 7 of s 342(1) demonstrate, different and particular descriptions of disadvantage have been chosen for each of the circumstances in which a person takes adverse action. Quite specific categories of disadvantage are variously utilized, and broader conceptions of disadvantage than the imposition of a disability, such as a prejudicial alteration of a person’s position, are there found in relation to other item numbers. In that context, it is not tenable, in my view, to contend that “disability of any kind” was intended to mean any kind of disadvantage.

37    Read in its context, to impose a “disability” on a member of the association, is to subject the member to a restriction or other constraint which disables or incapacitates the member from doing something which the member would otherwise be entitled or able to do. In other words, a disadvantage involving the loss, restriction or curtailment of an ability or capacity. The imposition of a disability does not contemplate the mere infliction of hurt feelings, anxiety, ill will or inconvenience. The word does not encompass all forms of detriment, prejudice, harm or disadvantage. It is limited to disadvantage which is consequential upon the loss, prevention or restriction of an ability or capacity. Whilst I prefer the view that the ability or capacity must arise from the person’s membership of the association, that is not a matter I need here to determine. The AWU contended that it did. The FWO contended that it did not but accepted that, for the purposes of this case, the disability contended for had to be referrable to the membership of Dunton and Hawarth with the AWU.

38    The rejection of the FWO’s broad construction of “disability” does not finalise what needs to be considered. The FWO also made the narrower contention that the expression “disability of any kind” encompassed a restriction framed to prevent a member of the association from sharing in “duties or privileges associated with union membership which would otherwise be open to them” (at [35]). Later, the written submission of the FWO said this (emphasis added):

Further, pursuant to the AWU Rules, Dunton and Haworth were entitled not to be summonsed to answer charges unless the National Secretary or Branch Secretary was satisfied as to the reasonableness of such charge [Rule 19(3)]. It was a right or benefit of their AWU membership that Dunton and Haworth would not be subjected to unreasonable charges. This was also a privilege usually associated with union membership which would otherwise be open to them.

39    That submission was expanded upon orally. It was contended that a benefit of membership of the AWU is that a member is not subjected to unreasonable or unfounded charges. That was said to be supported by an implication to be drawn from rule 19 that a member not be subjected to a charge unless a reasonable foundation for it existed.

40    Those submissions suggest a reliance upon a meaning of “disability” much closer to that which I would accept as at least arguably correct. I accept as arguable that a loss, restriction or curtailment of a right, benefit or capacity conferred by the rules of an association upon a member to enjoy membership of the association free of being vexed by charges brought without reasonable foundation, could constitute the imposition of a “disability” on the member. That conclusion is not inconsistent with the AWU’s contention that “disability” means an “inability or incapacity to do something”. The conclusion is based upon a liberal and beneficial construction, appropriate for construing the protections conferred by Part 3–1 of the FW Act (Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (No 3) [2012] FCA 1218 at [122] (Jessup J); Construction, Forestry, Mining and Energy Union v Endeavour Coal Pty Ltd (2015) 231 FCR 150 at [180]–[181] (Bromberg J)), which is not “unreasonable or unnatural” (IW v City of Perth (1997) 191 CLR 1 at 12 (Brennan CJ and McHugh J)).

41    There is, however, nothing in the ASOC that asserts that the Rules conferred upon Dunton and Haworth a right, benefit or capacity of any kind, let alone a right, benefit or capacity to enjoy membership of the AWU free of being vexed by charges brought without reasonable foundation. Nor can it be said, either at all or with any clarity, that the ASOC pleads that a loss, restriction or curtailment of such a right, benefit or capacity was the nature of the action taken by the AWU. The ASOC has been drawn with the broad meaning of “disability of any kind” in mind for which the FWO primarily contended. The FWO’s alternative and narrower contention is not articulated by the ASOC and is likely to have been first formulated in response to the submissions of the AWU.

42    Nevertheless, the failure of a pleading to disclose a reasonable cause of action will not necessarily result in the summary dismissal of a cause of action. Evidence or other material may disclose that a reasonable prospect of successfully prosecuting a cause of action remains: Spencer at [23] (French CJ and Gummow J). Whilst the ASOC may be deficient by not asserting either the right, benefit or capacity, or its loss, restriction or curtailment, the FWO’s submission, together with the evidence as to the terms of rule 19, have identified a basis which, at least arguably, permits the available facts to constitute a “disability of any kind”. The prospect of the Rules so providing was not the subject of any submissions. That such an implication should be drawn from the Rules is not obvious but neither is it obviously fanciful. If such a right, benefit or capacity exists, the prospect of the FWO establishing that it was lost, restricted or constrained relies upon factual matters that will need to be considered at trial. The conduct alleged may well be so “ephemeral” or “negligible” as to be incapable of constituting a “disability”, as the AWU at one point, in its submission, asserted. But again that is a matter for trial. Whilst the FWO’s ss 340 and 346 claims may well be challenging or ambitious, I am not able to say that each has no more than a fanciful prospect of success. Subject to a consideration of the matters to which I now turn, I would not summarily dismiss those causes arising from ss 340 and 346 of the FW Act.

Is there a reasonable prospect that the conduct of Wood is the AWU’s conduct?

43    The conduct of Wood in laying the charges is asserted as the conduct of the AWU. The ASOC pleads that in charging Dunton and Haworth, Wood was acting in his capacity as an officer or agent of the AWO, on behalf of the AWU and within the scope of his actual or apparent authority as an officer, employee or agent of the AWU. The ASOC appears to rely upon ss 363(1)(b) and 793(1)(a) of the FW Act. Each of those provisions is specified in the particulars to the pleading just outlined.

44    The AWU contended that the FWO has no reasonable prospect of establishing that the conduct of Wood is attributable to the AWU. I agree with the FWO’s contention that in this interlocutory proceeding it is not open to the AWU to contest the truth of the allegation that Wood was not an officer of the AWU.

45    Allowing for the possibility that the FWO may establish that Wood was an officer of the AWU, the AWU then contended that s 363(1)(b) requires that, for the purposes of attribution, the action must be “taken by an officer or agent of the industrial association acting in that capacity” (emphasis in original). In relation to the FWO’s reliance upon s 793(1)(a) of the FW Act, the AWU contended that that provision requires the action be taken “by an officer, employee or agent … of the body within the scope of his or her actual or apparent authority”. The AWU relied upon rule 19 to make the point that a charge of misconduct can only be laid by a member. The AWU then contended:

… that it is no part of the role, function, capacity or authority of an officer to lay a charge as was done in this case. Nor is it any prerequisite for the laying of a charge that the person laying it is an officer, employee or agent. Thus, it cannot be held that the laying of a charge by Wood is caught by either s.363(1)(b) or s.793(1)(a) as alleged.

46    Given the uncontroversial fact that only a member, in that person’s capacity as a member, is able to lay a charge under the Rules, the proposition that Wood did that with the ostensible authority of the AWU (whether as an officer or as an agent) seems to me to be untenable, as the context provides no basis for any suggestion that the conduct had the apparent authority of the AWU. That then leaves the possibility that what Wood did was done with the actual authority of the AWU.

47    I consider that an agent may, with actual authority, do an act which is not legitimate, lawful or permissible for the principal to have done. For instance, where a law prohibits corporations (but not individuals) from making political donations, it is at least arguable that if an employee of a corporation makes a political donation with the corporation’s funds and on its instructions, the employee has made the donation as the agent of the corporation. Thus if actual authority is demonstrated, agency may be established even where the context negates the suggestion of ostensible authority. However, the difficulty for the FWO is that there are no material facts specified to support the mere assertion made in the ASOC that Wood laid the charges with the authority of the AWU. There is nothing pleaded to support any assertion that the charges were laid at the instance of and with the approval of the AWU.

48    Neither ss 363(1)(b) nor 793(1) relieve the FWO from pleading the material facts necessary to establish actual authority if actual authority is the only possible basis for establishing that Wood was the AWU’s agent, as I consider to be the case.

49    If there had been an application before me to strike out that part of the FWO’s pleading that asserted Wood’s conduct to be the conduct of AWU, the observations just made suggest the course I would likely have taken. But there is no such application and, as the conduct of Wood is only one element of each of the ss 340 and 346 claims, it would not be appropriate for judgment to be entered in favour of the AWU in relation to those claims.

Is there a reasonable prospect that a disability was threatened?

50    That brings me to the third element of the “course of conduct” described by the ASOC as the “unjustifiable disciplinary action”. The ASOC pleads that by reason of the unjustifiable disciplinary action, adverse action was taken against both Dunton and Haworth in that the unjustifiable disciplinary action “threatened to impose a penalty of a fine, suspension of membership or expulsion from the [AWU]” and therefore “threatened to impose a disability”. The only material facts pleaded in support of that allegation rely on the letters of 16 March 2015 forwarded by Davis to each of Dunton and Haworth. The ASOC pleads that the letters informed each of Dunton and Haworth that Wood had charged them and that they were summonsed to attend a meeting of the Committee of Management. Relevant to the assertion of a threat, the ASOC then pleads that the letters represented that the charges were a “very serious matter” and “if the charges were found to be sustained, the Committee of Management had a number of options available to it including a fine, suspension of membership and/or expulsion from the [AWU]”. It is that representation, made as part of the “unjustifiable disciplinary action”, that the FWO asserts constituted a threat and adverse action which, pursuant to s 342(2)(a), includes “threatening to take action covered by the table in sub-section (1)”.

51    The letters of 16 March 2015 were not before me. Their tender was resisted by the FWO and, as a result, was not pressed by the AWU. The AWU contended that, taken at its highest, the material facts pleaded demonstrated no more than the giving of notice by Davis, in his capacity as the Branch Secretary, of the charges laid against Dunton and Haworth by Wood and, in so doing, describing the process that is to be followed in respect of those charges under the Rules. The AWU contended that Davis’s conduct could not constitute “threatening to take action” within the meaning of s 342(2)(a) because what was done was not the communication of a warning of an intention to inflict harm, it was, instead, a mere indication of the process to be followed in relation to the charges. Additionally, the AWU contended that a threat must necessarily be made by an entity that can carry it out and that only the Committee of Management, and not Davis, had the power to inflict a fine, suspension or expulsion. For those reasons, the AWU contended that the FWO does not have a reasonable prospect of establishing that, by the conduct of Davis, the AWU engaged in the conduct of “threatening to” fine, suspend or expel Dunton or Haworth.

52    The FWO contended that it relied upon the whole of the “course of conduct” alleged against the AWU and not just the letters forwarded by Davis. The FWO submitted that the letters, “together with the balance of the course of conduct amounting to the alleged unjustifiable disciplinary action, did reflect an intention to impose a penalty or fine, suspension of membership or expulsion from the AWU”. The FWO did not elaborate upon what aspects of the “course of conduct” it relied upon other than, perhaps, the allegation that Dunton and Haworth were charged and summonsed “for the purpose of punishing them”. Additionally, the FWO submitted that there was no authority to support the AWU’s assertion that a threat must necessarily be made by an entity that can carry it out.

53    By reference to prior authority, I addressed the meaning of “threatening to take action” at [217]–[232] of Construction, Forestry, Mining and Energy Union v Victoria [2013] FCA 445. My observations were not considered on the subsequent appeal published as Victoria v Construction, Forestry, Mining and Energy Union (2013) 218 FCR 172. Amongst the authorities that had construed the term “threaten” in predecessor provisions to s 342(2)(a), I had regard to Gietzelt v Craig-Williams Pty Ltd (No 1) (1959) 1 FLR 456 (Spicer CJ, Dunphy and Morgan JJ); Gietzelt v Craig-Williams Pty Ltd (No 2) (1959) 1 FLR 465 (Spicer CJ, Dunphy and Morgan JJ); Community and Public Sector Union v Telstra Corporation Limited (2000) 99 IR 238 (Finkelstein J); Community and Public Sector Union v Telstra Corporation Limited (2000) 101 FCR 45 (Black CJ, Ryan and Merkel JJ). Although not referred to in my reasons, regard should also be had to the judgment of Weinberg J in National Union of Workers v Quenos Pty Ltd (2001) 108 FCR 90 and in particular at [119], where, in a passage relied upon by the AWU, Weinberg J said this:

… To adopt the language of Finkelstein J in CPSU v Telstra Corp Ltd (supra) such conduct is hardly a warning "of an intention to inflict harm". The mere indication that a selection process will be followed, without more, seems to me to fall well short of a threat, still less a threat which is directed to an individual employee.

54    A number of principles may be drawn from the authorities I have just outlined. First, “threatening to take action” must involve the communication of a threat directed at an ascertainable person which is received or is likely to be received by that person. That a particular outcome is threatened by existing or prospective circumstances is not a threat of the requisite kind. Second, to threaten means to communicate an intent to inflict harm or, in other words, a warning of an intention to inflict harm. Third, the essence of a threat is that it is made for the purpose of intimidating a person. Accordingly, “threatening to take action” must involve an expression of an intimidatory purpose. Fourth, it is not necessary that a subjective intent to carry out the threat be established. Fifth, the notion of a threat is not confined to an intent to inflict harm which was unlawful or unjustified. Sixth, the presence of malice or some other injurious motive is not a prerequisite. Lastly, a threat to take action may be conditional (in the sense that X will occur if Y does not).

55    On the pleaded facts, Davis’ letter provides the basis for concluding that the FWO can establish that a communication made by Davis was directed at and received by Dunton and Haworth. However, that a communication makes reference to the prospective prejudicial consequences for a person, should various conditions be satisfied, does not of itself characterise the communication as a threat. If it were otherwise a threat would be made whenever a person is notified of prospective harm. There is a distinction to be drawn between the provision of information and a threat. The difficulty for the FWO in demonstrating that Davis’ letter was a threat is that a communication of intent to inflict harm and an expression of an intimidatory purpose is not apparent on the facts as pleaded or demonstrated to be available.

56    That is so including because a communication of an intent to inflict harm must logically involve an objectively ascertainable basis for thinking that the person making the communication has the capacity (directly or indirectly) to inflict the harm. Absent that characteristic, the communication is stripped of its intimidatory character and will be received and understood as empty and lacking any substance. There is nothing pleaded to support the proposition that, objectively speaking, Dunton and Haworth would have understood that Davis had the capacity to inflict harm upon them by way of a fine, suspension or expulsion from the AWU. To the contrary, what is pleaded is that Davis communicated the options available, not to him, but to the Committee of Management if the charges laid against Dunton and Haworth were found to be sustained.

57    Whether or not s 793(2) of the FW Act is available to assist the FWO in discharging its burden, the facts as pleaded and taken at their highest do not appear to provide a foundation from which it may be said that the FWO has more than a fanciful prospect of success on this element of its case brought pursuant to ss 340 and 346.

58    However, I need not reach a final view. The alleged threats are only one element of each of the claims made under s 340 and 346. For the reasons earlier expressed, I am not satisfied that the FWO has no reasonable prospect of success in relation to Davis’ conduct said to constitute the imposition of a disability of any kind. It would not be appropriate to enter judgment in favour of the AWU on the ss 340 and 346 claims in circumstances where at least one element of each of those claims remains to be determined at trial.

coercion claims (ss 343 and 348)

59    In support of its submission that the FWO has no prospect of success on its claims under ss 343 or 348, the AWU contended that factual matters which the FWO has the burden of establishing are not alleged by the ASOC and that therefore its claims are deficient and must fail. To deal with that argument I need to consider what it is that an applicant bears the onus of establishing in a proceeding brought pursuant to ss 343 or 384.

60    As is evident from what I said at [216] of Construction, Forestry, Mining and Energy Union v McCorkell Constructions Pty Ltd (No 2) [2013] FCA 446 in relation to the operation of s 343(1), the applicant bears the onus of establishing the “action” organised, taken or threatened. The same must equally apply in relation to s 348. There was no issue taken by the AWU with the FWO’s prospect, on the face of the pleading, of establishing that the “action” was organised, taken or threatened.

61    As both sections 343 and 348 are found in Part 3–1, of the FW Act and an element in the contravention of each of those sections is that action was taken for a “particular reason” or a “particular intent”, s 361 applies. Section 361(1) provides that where a particular reason or intent has been alleged “it is presumed that the action was, or is being, taken for that reason or with that intent, unless the person [the respondent] proves otherwise” (“s 361 presumption”).

62    The legislative predecessor to ss 343 and 348 was s 170NC(1) of the Workplace Relations Act 1996 (Cth) (“WR Act”). The WR Act contained a legislative predecessor to s 361(1), however that section had no application to s 170NC(1). As a result, the authorities on s 170NC(1) do not provide any guidance as to the intended operation of a presumption like that contained in s 361(1) to coercion provisions. However, the authorities on s 170NC(1) are nevertheless helpful. They have determined that two elements need to be established to prove “intent to coerce”, a phrase repeated in ss 343 and 348. The often cited observation of Merkel J in Seven Network (Operations) Limited v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (2001) 109 FCR 378 at 388 identifies those two elements as follows:

The above cases establish that there must be two elements to prove “intent to coerce” under s 170NC(1). First, it needs to be shown that it was intended that pressure be exerted which, in a practical sense, will negate choice. Secondly, the exertion of the pressure must involve conduct that is unlawful, illegitimate or unconscionable.

63    As Buchanan and Griffiths JJ observed in Victoria v Construction, Forestry, Mining and Energy Union at [72] those two elements have their origin in the legal meaning of the concepts of coercion and duress at common law. At [70] and in dealing with s 343 of the FW Act, Buchanan and Griffiths JJ described the meaning of the term “intent to coerce”, as used in s 343, as being “settled”.

64    Similarly, Buchanan J (with whom Siopis J agreed) in Esso Australia Pty Ltd v The Australian Workers’ Union (2016) 245 FCR 39 at [174] observed by reference to a survey of the authorities, that “[c]oercion has been held to require the satisfaction of two elements: negation of choice; and the use of unlawful, or illegitimate or unconscionable means”.

65    At [194], Buchanan J said this (emphasis added):

The requirement of intent applies to the purpose of negating choice. The additional element that the means employed be unlawful, etc. involves an objective test. That approach is consistent with the common law origins of the notion of coercion which can be traced back to the tort of economic duress, as explained in the cases to which I have referred earlier. In that common law context, the notion of purpose, or intent, applies to the first element but not the second.

66    Those observations, consistently with the approach I took in McCorkell, demonstrate that in relation to each of ss 343 and 348, the s 361 presumption will have application to the first element of “intent to coerce”, the intention to negate choice. But the s 361 presumption will not have application to the second element, the use of unlawful, illegitimate, or unconscionable means, which, as Buchanan J said in Esso, involves an objective test.

67    However, the s 361 presumption is concerned only with the onus of proof and is not of itself determinative of the question of intent. Even if I were to find in this summary judgment application that the FWO could not take the benefit of the s 361 presumption, it would still be open to the FWO to prove the alleged intent at trial. The ASOC alleges that Davis and Wood intended to coerce Dunton and Haworth to engage in protected industrial action or industrial activity. Taken at their highest, as must be done on a summary judgment application, those facts provide a basis for saying that the FWO has a reasonable prospect of establishing that Davis and Wood had the necessary intention.

68    To summarise so far, without the benefit of the s 361 presumption, in a proceeding brought under ss 343 or 348, an applicant will need to establish the “action” taken by the respondent against “another person” and that the action was unlawful, illegitimate or unconscionable. To prove that the action was taken with an intent to negate the other person’s choice to exercise or not exercise a workplace right (in relation to s 343) or to engage or not engage in industrial activity (in relation to s 348) (“protected choice”), an applicant will have the benefit of the s 361 presumption.

69    That leaves for consideration one final aspect relevant to both ss 343 and 348. That is, whether an applicant must also establish the factual existence of the circumstance said to be the subject of the coercive “action” to succeed at prosecuting a case of coercion under ss 343 or 348, and if that is so, the nature of the circumstance required to be established.

70    That question has been the subject of judicial consideration, at least inferentially, in relation to s 340(1)(a) and its predecessors, as I will shortly outline. Those cases have invariably approached the question through the prism of s 361(1) and its predecessors. That is, in cases in which the circumstance said to be the “reason” for adverse action was not established as an objective fact, it was held that the applicant could not take the benefit of the s 361 presumption. Whether cases of this sort establish the proposition that the circumstance itself is, of necessity, an element of a s 340 cause of action is less clear. It does not follow that an applicant said to be unable to take the benefit of the s 361 presumption is necessarily unable to make out the cause of action. The applicant might, for instance, prove at trial that even though the circumstance did not in fact exist, the respondent mistakenly believed it to exist, and was thereby actuated by a prohibited reason. Victims of various forms of discriminatory conduct are protected not only against action taken because the victim has a particular attribute (for example sex, race, religion or disability) but also where such an attribute has been wrongly imputed to the victim. In relation to persecution “for reasons of” a protected attribute as a criterion for a protection visa under s 36(2)(a) of the Migration Act 1958 (Cth), Burchett J (with whom O’Loughlin and Nicholson JJ agreed) said (at 568) in Ram v Minister for Immigration and Ethnic Affairs (1995) 57 FCR 565:

The words "persecuted for reasons of" look to [the persecutor’s] motives and attitudes, and a victim may be persecuted for reasons of race or social group, to which they think he belongs, even if in truth they are mistaken. Hitler's ghastly views about race, for instance, led to persons being classified as Jewish who had appropriately regarded themselves as German; the perception of the authorities was then the important reality which determined their fate.

Another example can be seen in the definition of “disability” under s 4 of the Disability Discrimination Act 1992 (Cth), said, by paragraph (k), to include a disability that is imputed to a person.

71    Why the position should be different under those provisions of the FW Act where a contravention depends upon particular action being taken for a prohibited reason or with a prohibited intent is not apparent either textually or by reason of an underlying policy or purpose. But the issue was not the direct subject of any submissions before me. I do not express my concluded view on the subject, and so far as s 340(1)(a) is concerned the position seems to be settled.

72    As Jessup J (with whom Allsop CJ and White J agreed) said in Tattsbet Limited v Morrow (2015) 233 FCR 46 at [119], there is a history of many first-instance judgments of this Court where:

… it has been treated as uncontroversial that the party making an allegation that adverse action was taken “because” of a particular circumstance needs to establish the existence of the circumstance as an objective fact…

See also Construction, Forestry, Mining and Energy Union v Coal and Allied Operations Pty Ltd (1999) 140 IR 131 at [161]–[162] (Branson J); Bahonko v Sterjov (2007) 167 IR 43 at [96]–[101] (Jessup J); Police Federation of Australia v Nixon (2008) 168 FCR 340 at [68] (Ryan J); Rojas v Esselte Australia Pty Limited (No 2) (2008) 177 IR 306 at [49]–[50] (Moore J); Jones v Queensland Tertiary Admissions Centre Ltd (No 2) (2010) 186 FCR 22 at [10] (Collier J); Australian Licenced Aircraft Engineers Association v International Aviation Service Assistance Pty Ltd (2011) 193 FCR 526 at [329]–[331] (Barker J); Construction, Forestry, Mining and Energy Union v Pilbara Iron Company (Services) Pty Ltd (No 3) [2012] FCA 697 at [59] (Katzmann J); Stephens v Australian Postal Corporation [2014] FCA 732 at [13] (Flick J).

73    However, I was not referred to any cases in which that approach has been applied to ss 343 or 348. Unlike s 340(1)(a) which is concerned with “action” which may be characterised as reprisal for past conduct, ss 343 and 348 are concerned with “action” that seeks to influence future conduct. As Jessup J went on to say at [120] of Tattsbet, the jurisprudence to which his Honour referred at [119] was relevant to the application of the s 361 presumption to a s 340(1)(a) case and that different considerations may apply in a case reliant upon s 340(1)(b). Section 340(1)(b) is a new provision introduced by the FW Act, addressed at future conduct, and may have more in common with ss 343 and 348 coercion than with s340(1)(a) adverse action.

74    Without expressing a concluded view on whether a similar approach is required in relation to ss 343 and 348, in favour of the AWU, I will presume that it is. However, as I will explain, in the application of that presumption I consider that the nature of the “circumstance” to be proved by an applicant must take into account the subject dealt with by ss 343 and 348.

75    I turn then to the particular challenge made by the AWU to the FWO’s ss 343 and 348 cases. The AWU contended that the FWO has no reasonable prospect of establishing action with intent to coerce. The ASOC asserts that the AWU contravened s 343 by engaging in conduct with intent to coerce Dunton and Haworth to exercise a workplace right to take protected industrial action and contravened s 348 by engaging in the same conduct with intent to coerce Dunton and Haworth to engage in industrial activity. However, the AWU pointed to the lack of any allegation in the ASOC that there was any protected industrial action on foot or in prospect at the time of the AWU’s conduct. In those circumstances, the AWU contended that there was not a reasonable prospect of establishing a contravention of either ss 343 or 348.

76    The basis for the AWU’s contention, as explained in oral submissions, was that the factual foundation required to be established by the FWO was that at the time that the “unjustifiable disciplinary action” was taken, the taking of protected industrial action by employees at Orica was in prospect. As the ASOC makes no allegation that further protected industrial action was intended or that such action was otherwise in prospect, the AWU contended that the FWO’s claims had no reasonable prospect of success.

77    The FWO pointed to the surrounding factual context pleaded in the ASOC, including that the alleged coercive “action” took place during a period of ongoing negotiations for an enterprise agreement, and contended that there were sufficient facts pleaded from which it could be concluded that prospective protected industrial action was a possibility. However, what I perceive to be the FWO’s primary contention, is that it is not for an applicant in a case of this kind, where the action taken by the respondent may be seen to be directed at deterring a future refusal to engage in protected industrial action, to prove that the taking of future protected industrial action is in prospect. That contention was based on the asserted need to give the provisions a “fair, large and liberal” meaning that would achieve the objects of Part 3-1.

78    The AWU’s submission rests on the premise that the “circumstance”, or foundational fact, to be proved by the FWO in order to make out its claims under ss 343 and 348 is the existence of actual or prospective industrial activity. I do not consider the premise to be correct. As alluded to above, ss 343 and 348 are provisions concerned with action taken to negate a choice, or, more particularly, the negation of a protected choice. On this basis, I consider that the focus of the enquiry in relation to ss 343 and 348 must be on the relevant protected choice. In that context it might be said that the “circumstance” to be established by an applicant is that the relevant protected choice was available to be negated. In other words, that the choice to either exercise or not exercise a workplace right (in relation to s 343) or to either engage or not engage in industrial activity (in relation to s 348) existed at the time that the coercive “action” was taken.

79    I accept the FWO’s submission that it is more than merely arguable that, in the context of ongoing negotiations for an enterprise agreement, there remained a real, and not fanciful, possibility of future protected industrial action. However, if the foundational fact to be proved by the FWO is the protected choice, then the existence or prospect of industrial activity will not of itself be determinative. For instance, even if protected industrial action was in prospect, the choice may have been abrogated by Dunton and Haworth if they had come to the view that they would not again choose to participate in protected action. In other words, the intentions or actions of Dunton and Haworth themselves, could have negated the existence of the protected choice when the “action” was taken.

80    The ASOC does not allege explicitly that at the time of the “unjustifiable disciplinary action” the protected choice existed. But the AWU did not rely on the absence of that allegation and it should not be the basis upon which summary dismissal is granted. In any event, given the absence of clear authority on the issue of what foundational facts are to be proved by an applicant, I consider that this issue is best left to trial.

81    For those reasons the AWU fails in its application for the summary dismissal of the ss 343 and 348 claims.

accessorial liability claim made against davis (s 550)

82    There are two aspects to Davis’ challenge to the claim made pursuant to s 550 of the FW Act that he is liable as an accessory (that is, “a person who is involved”), in each of the contraventions of the FW Act alleged against the AWU.

83    The first aspect relates to the conduct of Wood in laying the charges, which the ASOC asserts to be the conduct of the AWU. The ASOC alleges (at [62]) that Davis had actual knowledge of the conduct of the AWU and was an intentional participant in the factual matters which comprised the conduct of the AWU. In each case the conduct referred to includes the laying by Wood of the charges against Dunton and Haworth. Davis contended that the ASOC does not plead any material facts or particulars to suggest that he was in any way involved in Wood’s act of laying the charges. As such, Davis contended that the FWO has no reasonable prospect of showing that he was an accessory to the conduct of the AWU insofar as it is based on the conduct of Wood. Further, Davis relies on the argument already dealt with, that in any event, the FWO has no reasonable prospect of establishing that the conduct of Wood is attributable to the AWU.

84    There is force in the complaint that the pleading does not properly support the alleged involvement by Davis in the laying of the charges by Wood. As I have already said, there is also force in the proposition that, on the pleading, the FWO has no reasonable prospect of attributing the conduct of Wood to the AWU.

85    The second aspect of Davis’ challenge to the claim made under s 550 relates to Davis’ own conduct alleged to be the conduct of the AWU. Summary judgment for Davis could not be given on the s 550 claim unless Davis also succeeds on the second aspect of his challenge. As I will now explain, Davis does not succeed on that aspect.

86    Beyond the conduct of Wood, the only conduct relied upon by the FWO as conduct of the AWU is the conduct of Davis himself. As Davis submitted, relying upon ss 363(1)(b) and 793(1)(a) the ASOC alleges that the AWU is liable for his conduct by reason of his acting as an officer or agent of the AWU within the scope of his actual or apparent authority. In that context, it was contended that the conduct of Davis relied upon by the FWO to establish both the derivative liability of the AWU and the accessorial liability of Davis is one and the same. It was further contended that where Davis’ conduct as primary perpetrator is said to form the basis of the AWU’s derivative liability, there is no cause of action available against Davis for accessorial liability under s 550.

87    Davis relied on an observation made by Dixon J in Mallan v Lee (1949) 80 CLR 198 at 216 as follows:

It would be an inversion of the conceptions on which the degrees of offending are founded to make the person actually committing the forbidden acts an accessory to the offence consisting in the vicarious responsibility for his acts.

88    Those observations received some passing support in the judgments of Mason ACJ, Wilson, Deane and Dawson JJ in Yorke v Lucas (1985) 158 CLR 661 at 671 to which French J drew attention in Wright v Wheeler Grace & Pierucci [1988] FCA 199 at 36–37. On the other hand, some support for the FWO’s position may be gleaned from Enzed Holdings Limited v Wynthea Pty Ltd [1984] FCA 416 at 27–28 (Sheppard, Morling and Wilcox JJ) and Trade Practices Commission v Frendship Aloe Vera Pty Ltd (1988) 82 ALR 557 (Pincus J) at 561–562, where the observations of Dixon J were distinguished.

89    However, to my mind, the most relevant authority to which I was taken is Hamilton v Whitehead (1988) 166 CLR 121 where the Court (Mason CJ, Wilson and Toohey JJ) clarified the High Court’s reference in Yorke v Lucas to the observations of Dixon J in Mallan. At 129–130, their Honours drew a distinction between a contravention committed by a corporate contravener as a consequence of being vicariously liable for the conduct of its servant (a circumstance in which, following Mallan, the servant is not capable of being an accessory) and a contravention committed by a corporate contravener as a consequence of actions undertaken by a person whose conduct is deemed to be the conduct of the corporation (a circumstance where the person is capable of being an accessory). Although not expressed, the apparent logic which supports that dichotomy is that in the first case the servant is the principal contravener whilst in the second case the principal contravener is the corporation.

90    Whether the conduct alleged against Davis falls into the first or second category is a contestable proposition which the submissions of the parties did not address. There is, I consider, force in the proposition that neither s 363(1) nor s 793(1) impose vicarious liability on a body corporate or an industrial association. The terms of those provisions operate to deem the conduct of the officer or agent to be the conduct of the body corporate or the industrial association. If that is correct, Davis’ asserted conduct is distinguishable from Mallan, and therefore Davis is capable of being held to have been an accessory to the AWU’s primary contraventions.

91    I am therefore not persuaded that the FWO has no reasonable prospect of success on this claim.

conclusion

92    For the reasons given, the application for summary judgment must be dismissed.

93    No indication has to date been given by the FWO that it would seek its costs if successful. That may be because of the hurdle imposed on the grant of a costs order by s 570 of the FW Act. However, if the FWO does seek its costs, notice of that application should be given within 7 days, in which case, I shall invite short written submissions before determining whether any costs order should be made.

Associate:    

Dated:    17 May 2017