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Federal Court of Australia |
Last Updated: 6 March 2001
National Union of Workers v Qenos Pty Ltd [2001] FCA 178
INDUSTRIAL LAW - decision by employer to conduct "spill and fill" selection and retrenchment process - whether made for prohibited reason - whether made wholly or in part because of protected action - whether decision constitutes threat of dismissal - whether constitutes injury to employees in course of employment - whether prejudicially alters employees' positions - whether decision taken by reason of employees' membership of industrial union - whether employees dissatisfied with conditions - whether decision taken to coerce employees to accept agreement.
Workplace Relations Act 1996 (Cth) ss 170MU(1), 170NC, 298K(1)(a), (b), (c), 298L(1)(a), 298L(1)(l)
Davids Distribution Pty Ltd v NUW [1999] FCA 1108; (1999) 91 FCR 463 at 500 considered
Construction, Forestry, Mining and Energy Union v BHP Steel (AIS) Pty Ltd [2000] FCA 1008 at par 48 referred to
Australian Workers' Union v John Holland Pty Ltd [2001] FCA 93 at par 47 referred to
General Motors Holden Pty Ltd v Bowling (1976) 12 ALR 605 at 616, 619 referred to
IW v City of Perth [1997] HCA 30; (1997) 191 CLR 1 referred to
Employment Advocate v National Union of Workers [2000] FCA 710; (2000) 173 ALR 479 at 487 referred to
CPSU v Telstra Corporation Ltd (2000) 99 IR 238 at 244, 245-246 followed
Maritime Union of Australia v Geraldton Port Authority [1999] FCA 899; (1999) 93 FCR 34 at 69 referred to
Patrick Stevedore Operations No 2 Pty Ltd v Maritime Union of Australia [1998] HCA 30; (1998) 195 CLR 1 at 18 referred to
Australian Municipal, Administrative, Clerical and Services Union v Greater Dandenong Council (2000) 101 IR 143 at 157 referred to
Gibbs v Palmerston Town Council (V28 and V29 of 1987, unreported, 21 December 1987) considered
Australian Workers' Union v BHP Iron-Ore Pty Ltd [2001] FCA 3 at pars 53-54, 172-173, 218 followed, par 66 considered
Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 referred to
Finance Sector Union v Commonwealth Bank of Australia [2000] FCA 1372 referred to
BHP Iron Ore Pty Ltd v Australian Workers' Union [2000] FCA 430; (2000) 171 ALR 680 at 689, 698-703 followed
Finance Section Union v Commonwealth Bank of Australia [2000] FCA 1468 followed
NATIONAL UNION OF WORKERS v QENOS PTY LTD (ABN 62 054 196 771)
V937/00
WEINBERG J
6 MARCH 2001
MELBOURNE
IN THE FEDERAL COURT OF AUSTRALIA |
|
VICTORIA DISTRICT REGISTRY |
BETWEEN: |
NATIONAL UNION OF WORKERS APPLICANT |
AND: |
QENOS PTY LTD (ABN 62 054 196 771) RESPONDENT |
JUDGE: |
WEINBERG |
DATE OF ORDER: |
6 MARCH 2001 |
WHERE MADE: |
MELBOURNE |
The application be dismissed.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA |
|
VICTORIA DISTRICT REGISTRY |
BETWEEN: |
NATIONAL UNION OF WORKERS APPLICANT |
AND: |
QENOS PTY LTD (ABN 62 054 196 771) RESPONDENT |
JUDGE: |
WEINBERG |
DATE: |
6 MARCH 2001 |
PLACE: |
MELBOURNE |
1 The applicant, the National Union of Workers ("the NUW"), seeks relief for breaches of various provisions of the Workplace Relations Act 1996 (Cth) ("the Act"). In substance, the NUW claims that the decision by the respondent ("Qenos") to conduct a "spill and fill" selection and retrenchment process for employees at Qenos' Olefins plant at Altona, was made for a "prohibited reason" within the meaning of that term in the Act.
2 The NUW filed the application on 5 December 2000. It originally sought declarations that Qenos had contravened ss 170MU(1), 298K(1), 170NC and 298M of the Act, injunctions restraining Qenos from contravening those provisions, and orders under s 298U in respect of those alleged breaches. In its application the NUW also sought an interlocutory injunction restraining Qenos from requiring the Olefins employees to participate in the proposed selection process.
3 At the conclusion of the trial of this proceeding the NUW informed me that it no longer wished to press any claim in relation to s 298M. Nothing further need be said about that claim.
4 On 14 December 2000 I heard argument in respect of the interlocutory injunction application. I was satisfied on the evidence that it was appropriate to grant an interlocutory injunction. That injunction was in the following terms:
"THE COURT ORDERS:
1. That until the hearing and determination of that part of the Application which relates to the claim for interlocutory relief in paragraph 1(a) of Part B of the Application, or further order, the respondent (either itself, or its servants, or agents, or howsoever otherwise), be restrained from taking any step or doing anything which:
(a) requires the direct participation of Olefins employees in the "spill and fill" process; or
(b) fills any position in any proposed new structure."
(c)
5 At the time I granted the interlocutory injunction I indicated to the parties that I would deliver my reasons for doing so at a later date. However, having regard to the fact that this application was able to be heard expeditiously to finality, it is unnecessary to say anything further about the earlier proceeding.
Factual background
6 Qenos was formed in July 1999 as a joint venture between an Exxon Corporation subsidiary and a Mobil Corporation subsidiary (now known as the ExxonMobil Corporation) and Orica Australia Limited. The joint venture involved the merger of ExxonMobil's manufacturing operations in Altona, Victoria (Kemcor Australia Pty Ltd) and Orica Limited's manufacturing operations at Port Botany, New South Wales. The name "Qenos" was adopted in October 1999.
7 Qenos operates four manufacturing plants at Altona: Olefins, Plastics, Elastomers, and Resins. Elastomers manufactures rubber products and Resins manufactures polyethylene and polypropolene. The four plants make up an inter-related manufacturing process in that the operation of one impacts upon each of the others. The plants consist of the following sub-plants or operations:
Olefins -- |
Four operating areas: SCAL1, SCAL2, Light Ends, Boilers |
Resins -- |
Two sub-plants: Poly and Granulation |
Elastomers -- |
Two sub-plants: SBR and BR |
Plastics -- |
Two sub-plants: High Pressure (LDPE) and Low Pressure |
8 Qenos employs a total of approximately 900 people at its four manufacturing plants. The industrial interests of operators are represented by the NUW or the Australian Workers' Union ("the AWU"). Qenos also employs approximately 113 maintenance employees in the maintenance group. These employees are either represented by the Automotive Food Metals Engineering Printing and Kindred Industries Union ("the AMWU") or the Communications Electrical Electronic Energy Information Postal Plumbing and Allied Services Union of Australia ("the CEPU").
9 The employment of operators and maintenance employees at the Altona site is regulated by the Kemcor Australia Pty Ltd Altona Award 1996 ("the Award") and the Kemcor Australia Bridging Agreement 1999 ("the Bridging Agreement"). On 1 June 1999 the Bridging Agreement replaced the Kemcor Australia Pty Ltd Enterprise Agreement 1996-1999 ("EA II"). Since 1992 Qenos has adopted an approach of negotiating with all four unions to address conditions at the Qenos Altona site, through a single bargaining unit ("SBU") made up of the AMU, the AMWU, the CEPU and the NUW.
10 The Award underpins the Bridging Agreement. It was created by consent between the four unions comprising the SBU to provide a common set of conditions across Qenos' Altona site. The employment of approximately 470 employees is subject to the Bridging Agreement. There are approximately 400 employees whose employment is not subject to the Bridging Agreement. The nominal expiry date of the Bridging Agreement was 29 February 2000.
11 At the Olefins plant, Qenos employs approximately 95 operators. All of these operators are members of the NUW.
12 In September 1999 Qenos and the various unions commenced negotiations in order to reach a new enterprise agreement, to be known as Qenos Altona Enterprise Agreement 2000 ("EA III"). In order to assist and to provide operations support to the negotiation process, Qenos formed the Altona Enterprise Agreement Consultative Team ("the AEACT") in November 1999. The AEACT consists of Mr Steven Varney, Human Resources Manager, Mr Del Blake, General Manager, Operations, Mr Ken Gilbert, Industrial Relations Manager, Mr John Aitken, Compensation and Benefits Manager, Mr Christopher Harvey, Elastomers Operations Manager, and several other Operations Managers. The unions were represented by the Union Lead Team ("the ULT"), which was comprised of union shop stewards from each of the four unions.
13 By May 2000 no agreement over the terms of a new enterprise agreement had been reached between Qenos management and the ULT. The negotiations appear to have stalled. As a result, in about early May 2000 each of the unions served on the company a Notification of Bargaining Period pursuant to s 170MI of the Act. It appears that there was dissatisfaction in respect of several aspects of Qenos' proposal. The unions other than the NUW were not prepared to press their views by way of industrial action. In contrast, the views expressed by the NUW Olefins shop stewards (and by many of the Olefins operators) was that they were strongly opposed to a number of changes to work arrangements sought by Qenos, and were insistent on a number of aspects of the claims made by the NUW on their behalf.
14 Although negotiations continued between Qenos and the ULT between May and August 2000, these negotiations failed to resolve the key issues of concern to the NUW members. On 1 September 2000 Qenos served on the NUW and the other unions a Notice of a Bargaining Period under the Act. Following the service of that notice further negotiations occurred between Qenos and the ULT. During the course of these negotiations Qenos informed the union representatives that the position communicated to the ULT was its "final offer".
15 This "final offer" was considered by a mass meeting of members of all the unions on 27 September 2000. A motion was passed at this meeting by a two-thirds majority seeking amendments to Qenos' proposal for a certified agreement.
16 On 29 September 2000, Qenos served on the NUW and the other unions a Notice of Intended Lockout under the Act. The Notice stated that Qenos proposed to lock out employees at the Altona plants during the period 9 October 2000 to 9 December 2000.
17 At about 7.30am on 4 October 2000 the SBU held a mass meeting across all four Altona plants to vote on a draft EA III. During this meeting a motion was moved that Qenos' "final offer" for a new certified agreement be accepted "in principle". That motion was carried by a vote (by show of hands) of 200 members in favour and 167 against, with approximately ten abstentions.
18 Immediately following the mass meeting on 4 October 2000, a meeting of about 80 Olefins operators was held at the Olefins plant. During this meeting a motion was passed rejecting Qenos' proposed terms for a new certified agreement and seeking separate negotiations with Qenos for a certified agreement in respect of the Olefins plant operators.
19 The outcome of this meeting was communicated to the Qenos management who indicated that it was not prepared to agree to separate negotiations in respect of the NUW at the Olefins plant.
20 On 10 October 2000 the NUW served on Qenos a Notice of Protected Action. This notice stated that members of the NUW employed at the Olefins plant would take protected action in the form of an indefinite strike commencing on Saturday 14 October 2000. On or about that same day, the NUW received from Qenos a Notice of Intended Lockout. The notice stated that the company intended to lock out all operators employed at the Olefins plant who were members or eligible members of the NUW and that such action would commence on 14 October 2000 and continue until 14 December 2000.
21 On 14 October 2000 the NUW members employed at the Olefins plant left the plant and commenced an indefinite strike. Some days after the completion of this hearing, while judgment in this matter was reserved, I was informed that those employees had agreed to return to work, and that they had agreed with Qenos to certify the EA III. That decision to return to work did not, however, resolve the issues in dispute in the present proceeding.
22 On 14 November 2000 Qenos announced, by way of media release, its intention to close its high-pressure operation in the Plastics plant (the LDPE plant) and one of its operations in its Elastomers Plant (the SBR plant). The media release stated in part:
"The move will result in the loss of about 120 Altona jobs in the coming months. The company will consult with employees and their representatives about a fair and equitable selection process by which the most competent employees are retained."
23 It appears that the closure of the two operations had been under consideration by the company for some time, probably since July 1999. However, the timing of the decision to close the operations is said by the applicant to be of central importance to its case, and I will therefore return to that matter later in these reasons for judgment.
24 The evidence of Mr Berton, Operations Manager at the Olefins plant, was that the SBR operation has, for some time, been running at a loss and that Qenos no longer intends to produce the particular rubber product which was manufactured by that operation. It is intended to close that sub-plant some time in early 2001. The LDPE plant is shut down at present because Olefins is not producing feed stock, and it will not be recommissioned.
25 In addition, the SCAL1 Olefins Unit is to be converted from an oil-based feed unit to an ethane-based unit. As a result of this change, the BR sub-plant at Elastomers and the polypropelene sub-plant at Resins will not have any raw material in order to manufacture their respective products. These two sub-plants are likely to be closed in or about 2003.
26 Some time after 14 November 2000 Qenos employees received a letter from the company in relation to the closures. This letter stated in part:
"The plant closures will result in the loss of approximately 120 jobs at Altona. Consistent with Qenos' values, we will consult with employees about a selection process that is objective and transparent and treats all employees fairly. It will be based on competency and not the employee's plant location."
27 On 16 November 2000 a meeting was held during which Qenos representatives explained to NUW officials that a "spill and fill" process would be adopted to select those operators to be retrenched. It was explained that the "pool" of employees from which retrenchments would be made would include all operators at the Olefins, Plastics and Elastomers (SBR) plants. Each of the employees at these plants would have to re-apply for their positions.
28 It was also explained during this meeting that the employees at the Resins and Elastomers (BR) plants would not be included in the pool. The management representatives said that this was because, in the case of the Elastomers (BR) plant, it was scheduled to close in any event in about 18 months. Qenos wanted to avoid having to train the successful applicants for a position in that plant given that it would continue to operate for such a short period. In respect of the Resins plant, it was to be excluded from the process because it was to be subject to its own internal restructure which was to occur within the next three years.
29 In early May 2000, Mr Robert Jamieson, Resins Change Team Leader at Qenos, had engaged the services of a well-known firm of human resources consultants, Morgan & Banks (Assessment and Development Team), to assist Qenos with a restructure of the Resins plant. The restructure resulted in the retrenchment of approximately ten employees from a total pool of 87 employees. At the instruction of Mr Jamieson, Mr Matthew Bristow, a Morgan & Banks employee, designed criteria for the selection of employees. These criteria were used in the interview and assessment of employees. Based on the results of those interviews and assessments, final retrenchment decisions were made.
30 On 31 October 2000 Mr Jamieson and Mr Bristow gave a presentation to an AEACT meeting on the outcome of the Resins redundancy process. They explained to the meeting the selection criteria that were used and how that process had unfolded. Mr Jamieson gave evidence that later that day he was told of the impending closure of the LDPE and SBR operations. He was asked to lead a project team to develop and implement a selection process to ensure that Qenos could retain the best employees across those plants rather than just allowing people to put up their hands for voluntary redundancy.
31 Shortly after, Mr Jamieson, Mr Bristow and the project team developed a process to implement the spill and fill. In essence, the process involves identifying the most appropriate "human competencies", having regard to the Qenos culture and values. Those competencies are then tested by Morgan & Banks. In addition to "human competencies" the selection process is to take into consideration the employee's "motivational fit" and "learning capacity".
32 In order to choose the selection criteria to be used for the spill and fill, the project team, in consultation with Morgan & Banks, developed a "human competency library". This was a list of 16 criteria from which a lesser number would ultimately form part of the selection criteria. The next step involved employees being invited to give their input to determine the appropriate factors to assess the motivational fit profile. To this end, on 9 November 2000 Mr Jamieson sent an e-mail to each of the operational managers, asking them to select employees to participate in this part of the process. The e-mail stated in part:
"Rob and Trevor need...to survey a sample population at both the Olefins and Plastics LP plant to determine what competency's [sic] we will test for and there [sic] priority to the business. Motivational fit survey will also be included in this exercise.In preparation, what I am after is a list of 10 - 12 names of employees from each business who are forward thinking, understand the big picture and are prepared to put in a little work in [sic] to make a difference. We will ask them to complete this survey. The data generated will then be used as a selection tool in the expected organisational change program."
33 The competencies chosen, which are by and large very similar to those chosen for the Resins restructure, are:
* Continuous improvement
* Influencing and working with others/communication
* Initiative
* Managing change
* Managing work (adaptability)
* Problem solving/decision making
* Results driven
* Self-management
34 Based on these criteria, employees are to be assessed through a structured behavioural interview. Exercises and questions have been designed, inter alia, to test employees' aptitude and learning capacity, as well as their interest in ongoing employment with Qenos. Supervisors and employees are then to be interviewed. Once this process is complete, the plan is to rank all employees according to the results of these assessments.
35 During the course of the trial it became apparent that the process for making final decisions with regard to the selection of employees had not yet been determined by Qenos. What was clear, however, was that Mr Varney and Mr Blake would have the final say as to which employees were to stay and which were to be made redundant.
36 Mr Jamieson gave evidence that when he conducted the redundancy process at Resins, the interviews and assessments by Morgan & Banks were purely voluntary. He said that of the 87 employees in the pool for Resins, a number had chosen not to be involved in the interview process. Several of those who did not participate had, nonetheless, retained their jobs. He also said that with regard to the proposed spill and fill, participation in the interview and assessment process would be voluntary. He claimed, though not altogether convincingly, that employees who did not participate would not thereby jeopardise their possible employment prospects in the future.
Legislative provisions
37 Section 298K is to be found in Pt XA of the Act which deals with freedom of association. The objects of that part are set out in s 298A. These provisions are designed, inter alia, to protect employees who wish to be members of particular unions: see Davids Distribution Pty Ltd v National Union of Workers [1999] FCA 1108; (1999) 91 FCR 463 at 500; Construction, Forestry, Mining and Energy Union v BHP Steel (AIS) Pty Ltd [2000] FCA 1008 at par 48; and Australian Workers' Union v John Holland Pty Ltd [2001] FCA 93 at par 47.
38 Section 298K relevantly provides:
"(1) An employer must not, for a prohibited reason, or for reasons that include a prohibited reason, do or threaten to do any of the following:(a) dismiss an employee;
...
(c) alter the position of an employee to the employee's prejudice;
...."
39 Section 298L relevantly provides:
"(1) Conduct referred to in subsection 298K(1) or (2) is for a "prohibited reason" if it is carried out because the employee, independent contractor or other person concerned:(a) is, has been, proposes to become or has at any time proposed to become an officer, delegate or member of an industrial association; or
...
(l) in the case of an employee, or an independent contractor, who is a member of an industrial association that is seeking better industrial conditions - is dissatisfied with his or her conditions; or
...
(2) If:
(a) a threat is made to engage in conduct referred to in subsection 298K(1) or (2); and
(b) one of the prohibited reasons in subsection (1) of this section refers to a person doing or proposing to do a particular act, or not doing or proposing not to do a particular act; and
(c) the threat is made with the intent of dissuading or preventing the person from doing the act, or coercing the person to do the act, as the case requires;
the threat is taken to have been made for that prohibited reason."
40 Section 298V is applicable to proceedings alleging a contravention of s 298K. It provides:
"If:(a) in an application under this Division relating to a person's or an industrial association's conduct, it is alleged that the conduct was, or is being, carried out for a particular reason or with a particular intent; and
(b) for the person or industrial association to carry out the conduct for that reason or with that intent would constitute a contravention of this Part;
it is presumed, in proceedings under this Division arising from the application, that the conduct was, or is being, carried out for that reason or with that intent, unless the person or industrial association proves otherwise."
41 Section 170MU is similar, in many respects, in its structure and text to 298K. It prohibits an employer from dismissing or otherwise injuring an employee for engaging in prohibited action. It provides:
"(1) An employer must not:(a) dismiss an employee, injure an employee in his or her employment or alter the position of an employee to the employee's prejudice; or
(b) threaten to dismiss an employee, injure an employee in his or her employment or alter the position of an employee to the employee's prejudice;
wholly or partly because the employee is proposing to engage, is engaging, or has engaged, in protected action.
(2) Subsection (1) of this section does not apply to any of the following actions taken by the employer:
(a) standing-down the employee;
(b) refusing to pay the employee where, under the common law, the employer is permitted to do so because the employee has not performed work as directed;
(c) action of the employer that is itself protected action.
(3) In proceedings under section 170NF for an alleged contravention of subsection (1) of this section, it is to be presumed, unless the employer proves otherwise, that the alleged conduct of the employer was carried out wholly or partly because the employee was proposing to engage, was engaging, or had engaged, in protected action."
42 Section 170NC operates in an entirely different manner. It prohibits the coercion of persons in relation to certified agreements. The section provides:
"(1) A person must not:(a) take or threaten to take any industrial action or other action; or
(b) refrain or threaten to refrain from taking any action;
with intent to coerce another person to agree, or not to agree, to:
(c) making, varying or terminating, or extending the nominal expiry date of, an agreement under Division 2 or 3; or
(d) approving any of the things mentioned in paragraph (c).
Note: The Court has certain remedial powers in relation to a contravention of this section: see Division 10.
(2) Subsection (1) does not apply to action, or industrial action, that is protected action (within the meaning of Division 8).
(3) An employer must not coerce, or attempt to coerce, an employee of the employer:
(a) not to make a request as mentioned in subsection 170LK(4) in relation to an agreement that the employer proposes to make; or
(b) to withdraw such a request."
43 Unlike s 298K and s 170MU, s 170NC carries no reversal of the onus of proof.
The applicant's contentions in relation to ss 298K and 170MU
44 The applicant claims that the respondent has contravened both ss 298K and 170MU of the Act. The claims brought under these provisions raise for determination issues that are closely related.
45 Has the respondent, by its decision to introduce a spill and fill to meet redundancies brought out by plant closures:
(a) threatened to dismiss the NWU members at Olefins or
(b) injured those employees in their employment or
(c) altered their position to their prejudice
(d) for a "prohibited reason" or for reasons which include a "prohibited reason" (s 298K) or
(e) wholly or partly because those employees have engaged in protected action (s 170MU)?
46 It may be useful to focus firstly upon the manner in which the applicant presents its claim under s 298K. As noted earlier, that section is contained within Pt XA of the Act. It was introduced in its present form in 1996, replacing s 334 of the Industrial Relations Act 1988 (Cth). That section in turn replaced s 5 of the Conciliation and Arbitration Act 1904 (Cth), the original predecessors of which were introduced as far back as 1914 and were themselves based upon New South Wales provisions.
47 The conduct proscribed by s 298K was originally treated by the legislature as giving rise to criminal liability. However, since 1996, contraventions of s 298K have given rise to civil penalties and other remedial orders only. It has been suggested that the legislative history of these provisions, which broadly speaking are designed to protect members of trade unions from discrimination by their employers, extends back to a time when those organisations were more fragile institutions than they are today, and when they stood in need of a large measure of protection from employers: General Motors Holden Pty Ltd v Bowling (1976) 12 ALR 605 at 616 per Mason J.
48 The objects of Pt XA are remedial in nature. One such object is to protect the rights of individuals who are members or officers of industrial associations from discrimination and victimisation. Similar provisions in other legislation have been treated as remedial and construed beneficially: IW v City of Perth [1997] HCA 30; (1997) 191 CLR 1. Where a remedial law also has a penal aspect, such that the two principles of construction conflict, it has been held that the principle of strict construction should yield to the principle of beneficial construction: see Employment Advocate v National Union of Workers [2000] FCA 710; (2000) 173 ALR 479 at 487 per Einfeld J, and the cases cited therein.
49 The applicant submitted that in determining whether there has been a contravention of 298K the Court must identify and make findings about three discrete matters:
* the nature of the contravening conduct alleged must be identified - this is essentially the responsibility of the applicant in formulating the complaint;
* it must determine whether any dismissal, injury or alteration of position of an employee to the employee's prejudice, or any threat thereof, has been proved; and
* it must determine whether, if such conduct is proved, it was carried out for a prohibited reason, or for reasons that include a prohibited reason.
50 By virtue of the operation of s 298V, it is presumed in proceedings brought under s 298K, that the conduct was, or is being, carried out for a prohibited reason unless the respondent proves otherwise.
51 The applicant identified the contravening conduct in the present case as being the decision to include the Olefins employees in the pool from which redundant employees would be selected. That decision was said to amount to:
* a threat of dismissal within the meaning of s 298K(1)(a);
* injury to those employees in their employment within the meaning of s 298K(1)(b); and
* an alteration of their position to their prejudice within the meaning of s 298K(1)(c).
52 In relation to the contention that the contravening conduct in this case amounted to a threat of dismissal, the applicant referred to CPSU v Telstra Corporation Ltd (2000) 99 IR 238 at 244 where Finkelstein J observed:
"In the context of this legislation, there will not be a threat of proscribed conduct unless the employer communicates to his employee that proscribed action will be taken. One meaning of the word "threaten" is to menace or warn beforehand of an intention to inflict harm. That is the meaning that should be given to the word in s 298K."
53 The applicant relied upon this formulation and submitted that the communication by the respondent of its decision to conduct a spill and fill was, relevantly a warning of an intention to inflict harm. The applicant sought to distinguish the present case from Maritime Union of Australia v Geraldton Port Authority [1999] FCA 899; (1999) 93 FCR 34. There RD Nicholson J observed (at 78) that a threat of redeployment of any employees declining voluntary redundancy could not in itself amount to a threat to injure or alter the position of an employee to the prejudice of that employee. As his Honour noted, it was not until the facts of the redeployment fell out that it would be known whether the employees were injured or prejudiced.
54 The applicant submitted that the contravening conduct in this case would both injure the Olefins employees in their employment, and alter their position to their prejudice. The applicant referred to Patrick Stevedore Operations No 2 Pty Ltd v Maritime Union of Australia [1998] HCA 30; (1998) 195 CLR 1 at 18 where s 298K(1)(b) was said to cover "injury of any compensable kind" and s 298K(1)(c) was described as:
"...a broad additional category which covers not only legal injury but any adverse affection of, or deterioration in, the advantages enjoyed by the employee before the conduct in question."
55 The applicant submitted that injury to the Olefins employees in their employment and the prejudicial alternation of position suffered by them as a result of being included in the spill and fill was that their employment was thereby rendered less secure.
56 The applicant next submitted that the decision by the respondent to conduct a spill and fill in the present case had been taken for a "prohibited reason", or "for reasons that included a prohibited reason". The applicant referred to Maritime Union of Australia v Geraldton Port Authority (supra) at 69 where RD Nicholson J said:
"In my view the words "or for reasons that include a prohibited reason" in s 298K(1) effect a change to the law and permit a reason to be an operative reason provided it is one of the reasons for the conduct. It would not therefore have to be the "substantial" reason. It would have, of course, to be "operative" - that is it would have to be a reason. Section 298L is to be understood subject to that requirement."
57 Recently in Australian Workers' Union v John Holland Pty Ltd (supra) Goldberg J referred to this passage with approval. His Honour concluded that an employee had been dismissed by his employer to avert an industrial stoppage by other employees who were members of a different union, and not because he was a member or proposed delegate of the AWU. It followed that the employee's membership of the union was not an operative reason for termination of employment.
58 In Australian Municipal, Administrative, Clerical and Services Union v Greater Dandenong Council (2000) 101 IR 143 Madgwick J at 157 adopted a slightly different formulation from that of RD Nicholson J when he spoke of the need for there to be "an actual, operative and significant reason". Nothing seems to turn upon the distinction.
59 The applicant relied specifically upon each of ss 298L(1)(a) and 298L(1)(l) as the prohibited reasons for the contravening conduct which it was alleged had been carried out.
60 In so far as the applicant relied upon s 298L(1)(a) it was submitted that the decision to have a spill and fill had been taken, in part at least, because the Olefins employees were members of an industrial association, namely the NUW. The applicant submitted that the expression "member of an industrial association" in the context of par (a) meant more than merely being a member of such an association, at least in the sense of the formal requirements of membership. The applicant submitted that in Davids Distribution Pty Ltd v NUW [1999] FCA 1108; (1999) 91 FCR 463 at 500, Wilcox and Cooper JJ had adopted a broad view of that expression, treating it as embodying the incidents ordinarily associated with such membership, including the taking of collective action in pursuit of industrial interests. This interpretation was said by the applicant to accord generally with the approach taken to the legislative precursor of par (a) some years earlier by Gray J in Gibbs v Palmerston Town Council (V28 and V29 of 1987, unreported, 21 December 1987). There his Honour had referred to "the active" nature of the membership of the association as being the reason for the dismissal.
61 The applicant noted that in Australian Workers Union v BHP Iron-Ore Pty Ltd [2001] FCA 3 Kenny J had purported to distinguish Davids, and appeared to have taken a narrower view of the concept of membership in the context of s 298L(1)(a). Her Honour said at par 66:
"Paragraph 298L(1)(a) refers to membership of and holding office in a union. I do not think it is intended to cover any broader notion than that. Subsection s 298L(1) (which describes what is a prohibited reason for s 298K(1) purposes) consists of fourteen detailed paragraphs and a number of subparagraphs designed to protect an employee's freedom to join a union and to participate in union activities in a number of disparate situations. In Davids Distribution, their Honours were referring to the protection conferred by s 298L(1), considered as a whole. Their observations do not provide a basis for saying that par (a) of s 298L(1) is concerned with anything other than being, or proposing to become, a member (or an officer or delegate) of an industrial association. The concept of membership is recognised and dealt with in Part IX, Div 9 of the WR Act. There is nothing in the terms of par (a) or elsewhere in the WR Act to justify the applicants' submission that par (a) is concerned with a person's activities as a member, officer or delegate of an industrial association. At least some of those activities are protected elsewhere in s 298L(1)...."
62 The applicant submitted that to the extent that Kenny J had departed from the views of the Full Court in Davids Distribution Pty Ltd, her reasoning was "plainly incorrect", and should not be followed.
63 The applicant submitted with regard to s 298L(1)(l) that it was plain that the Olefins employees were members of an industrial association that was seeking "better industrial conditions", and that they were relevantly "dissatisfied with" their conditions. That being so, it was submitted, it was to be presumed, in accordance with s 298V, unless the respondent proved otherwise, that the contravening conduct was or is being carried out for that particular reason.
64 The applicant's claim under s 170MU is closely related to its claim under s 298K. However, s 170MU is not contained within Pt XA of the Act. It is designed to protect employees from threats of dismissal, injury in their employment, or the alteration of their position to their prejudice, where that conduct is carried out wholly or in part because they are engaged in protected action. The applicant alleged that the respondent's decision to conduct a spill and fill and to include within it the Olefins employees was taken, in part at least, in response to their having taken protected action. Once again, as with its claim under s 298K, the applicant relied upon a statutory reversal of the onus of proof which applies by virtue of s 170MU(3).
65 The applicant noted that it was the respondent's case that the decision to conduct a spill and fill in which the Olefins employees were included had been taken by two persons only, Mr Varney and Mr Blake. The applicant submitted, however, that the evidence pointed to a high-level policy body within the company, namely the Business Management Team ("the BMT"), being the actual decision-maker. The BMT included among its members Mr Bob Fairley the Managing Director. It also included Mr Varney and Mr Blake. The applicant submitted that the evidence demonstrated that the approval of the BMT was required in order to implement the spill and fill. It followed, it was submitted, that every member of the BMT was party to that decision.
66 The applicant advanced this submission principally because a number of members of the BMT were not called to give evidence in this proceeding. The applicant contended that it must follow from the respondent's failure to call these individuals that the onus of proof which rested upon the respondent to negate the alleged motivation for the decision to conduct the spill and fill had not been discharged. The applicant referred in particular in that regard to IW v City of Perth (supra) at 32 per Toohey J, at 51 per Gummow J and at 65 per Kirby J.
67 The applicant submitted, in the alternative, that if contrary to its primary submission the decision-makers were, in truth, Mr Varney and Mr Blake, the evidence still pointed clearly to either or both of those individuals being actuated by at least one of the prohibited reasons contained in s 298L(1)(a) and s 298L(1)(l). A further alternative submission was that Mr Varney and Mr Blake were motivated, at least in part, by the fact that the Olefins employees were engaged in protected action.
68 The applicant submitted that Mr Varney and Mr Blake had both lied when they claimed that the decision to conduct a spill and fill was not taken for any prohibited reason, or because the Olefins employees had elected to take prohibited action. In making that submission the applicant recognised that its case was largely circumstantial in nature.
69 In support of its claims, the applicant relied upon the following matters:
* The decision to conduct the spill and fill was taken hurriedly, and within a very short time of the decision by the Olefins employees to take protected action.
* The spill and fill did not extend to employees at other plants who were not regarded as "troublemakers".
* The proposal for a spill and fill, and the criteria upon which the new selection process rested, made it clear that what was intended was a general clean-out of employees whose attitudes and goals were not those of the respondent. Almost by definition, militant unionism could hardly be congruent with the criteria for selection under this particular spill and fill. It was unrealistic to expect employees who had taken industrial action, and been locked out by their employer, to satisfy all of the chosen assessment criteria, still less for such employees to share the values of the company which lay behind the selection of these criteria.
* The decision to proceed with the spill and fill, and to utilise the Morgan & Banks assessment criteria while the strike and lockout were continuing, was intended to put the Olefins employees at a disadvantage, and was likely to do so.
* An examination of a number of internal company documents which had been produced on discovery by the respondent demonstrated that neither Mr Varney nor Mr Blake had told the truth when they explained their reasons for having decided to conduct the spill and fill.
70 Having regard to the importance that the applicant placed upon the internal company documents referred to above, and the extensive cross-examination of Mr Varney and Mr Blake arising out of those documents, it is necessary to deal with them specifically.
The internal company documents
71 I shall not refer to each of the internal company documents relied upon by the applicant in detail as it is not necessary to do so. However, I shall set out passages from those documents which were assumed to be of particular significance in the proceeding before me. In chronological order they are as follows:
* A draft version of EA III produced on 18 February 2000 setting out in detail a process for addressing the impact of restructuring upon employees who might, at some future stage, be made redundant. The significance of this document from the applicant's point of view was that what was contemplated, at that stage, was that all redundancies would be voluntary. The applicant invited me to conclude that the respondent's subsequent change of position was brought about by the industrial action taken by the Olefins employees.
* A memorandum dated 1 March 2000 sent by Mr Rohan Hodges to a number of other managers, including Messrs Varney and Blake, in which Mr Hodges said:
"Positive negotiation of the EA to an agreed outcome appears to have come to an end at least for a period with significant points of difference between the company position and the union negotiation team. The majority of the areas of disagreement appear to be driven principally from the rejection by Olefins operators led by David Mizon of almost all areas of proposed change."
The applicant submitted that this document was significant because it showed that the Olefins employees were regarded as being troublemakers.
* A memorandum dated 28 April 2000 by Mr Fairley on behalf of the BMT to the Board members of Qenos. He referred to the negotiations for EA III which had been underway since October 1999, noting that the SBU had rejected all matters agreed by the ULT. Mr Fairley observed:
"The rejection was led by one or two members of the NUW from the Olefins site, who unfortunately carried the day with the entire group."
This document too was said to throw light upon the views of management towards the Olefins employees.
* A memorandum dated 11 May 2000 sent by Mr Fairley to, among others, Mr Varney and Mr Blake, in which Mr Fairley noted that negotiations on EA III appeared to have broken down, and commented:
"The two problematic issues are Non-Rostered work for Operator and Task Sharing. Both are requited enablers for us to be able to accomplish the changes needed to meet MCP targets. The disagreement with the company position is not widespread; NUW Olefins operators are the most vocal opponents to changing non-rostered work rules, while the Metals union is most vocal against task sharing."
Once again, this document was said to identify the Olefins employees as being responsible for the failure to reach agreement on EA III.
72 There then followed a series of memoranda sent between 1 June 2000 and 13 June 2000 in which company managers expressed frustration and annoyance at the inability of the company to finalise negotiations with the unions regarding EA III. These included:
* A memorandum dated 1 June 2000 sent by Mr Rob Berton in which he spoke of the need for "culture change" within the company. Mr Berton spoke also of a need to
"...ditch the EA and prepare to write one up only with a "new" workforce that has clearly committed to a business focus culture."
Mr Berton went on to raise the possibility of shutting down the HP (or other plants) and spoke generally in favour of "taking this proactive culture change shutdown option".
* A memorandum dated 2 June 2000 sent by Mr Hodges in reply to Mr Berton's recommendation in which Mr Hodges referred to "workplace renewal" as being the company's "weakest area". Mr Hodges noted a reluctance on the part of shareholders to retrench and re-hire significant numbers. He commented:
"If we shutdown Scal-1, HPPE, Elastomers and Resins PP then I can guarantee a workforce renewal in the remaining small workforce if you manage the change program properly."
The applicant submitted that one of those to whom this memorandum was sent was Mr Blake.
* A memorandum dated 11 June 2000 sent by Mr Blake in response to Mr Hodges' memorandum in which Mr Blake agreed that there was a need to change "the hearts and minds" of the workforce.
73 There followed a series of memoranda in October 2000. These included:
* A memorandum dated 10 October 2000 entitled "Dispute resolution" sent by e-mail by Mr Les Harman at 10.30pm that evening, to Mr Berton and Mr Blake. That date was, of course, the date on which the Olefins employees gave formal notification to the respondent of their intention to take protected action. The applicant relied heavily upon this memorandum. I propose to set it out in full. It reads as follows:
"Rob, DelMy thoughts on this are
We have arrived at a point where up until about a month ago I had hoped and to some point believed that we shouldn't need to get to, to move our business forward. The NWU attitude displayed in the last month tells me that my faith in the good sense of most of the operators was somewhat misplaced. At this point in time (today) I believe we have now passed a point on no going back what was on the table for the Olefins operators.
We must now make a significant change to the manner in which our shifts behave towards our business needs. To achieve this there are a significant number (20-30) of our technicians who must never be allowed to set foot in our plant against post this Saturday. It is imperitive (sic) that we develop a legal strategy to achieve this within the next few days. Olefins leadership team will develop a plan to run the plant with less people while we skill up the required number of extra personnel.
It is also vital that we do not allow the NUW to attract the sympathy of other Unions or staff work groups. I sense at this stage that the rest of these groups see the NUW as a common enemy and we must maintain this attitude even to the extent of keeping them employed in relatively menial work.
Once the return is eventually settled we then need to work on immediately building a strong relationship with the workforce that returns using our PROFHT values. I want to work for a business where these values are felt right across the board.
I will iterate that having reached this point we must not accept a return that allows the NUW to think they have had any sort of victory and just as importantly that other unions would see that the NUW achieved anything with this action. This position must be maintained regardless of how long it takes.
Les" (emphasis added)
* Mr Blake responded to Mr Harman's memorandum at 10.38pm, within minutes of receiving it. He sent copies of the following memorandum to, among others, Mr Berton, Mr Harvey and Mr Varney. Mr Blake said:
"Les - I agree with your sentiments. I have spent most of today trying to establish exactly how to achieve this aim. On the one hand we need to make the necessary changes in Olefins before a return to work; on the other hand we mustn't dis-enfranchise all the other folk on the Altona site in the process. The path isn't easy to find and will be difficult to follow. Rest assured we will be continuing to explore ways forward until we have the right one. Thanks for your support. Best regards. " (emphasis added)
The applicant submitted that this memorandum revealed Mr Blake's true state of mind and the real reason why he supported a spill and fill which included the Olefins employees. Mr Blake's aim was to rid the company of a significant number of those employees, and the spill and fill was the method by which that aim was to be achieved.
* On the following afternoon, 11 October 2000 at 2 pm, Mr Varney sent a copy of Mr Harman's memorandum to a number of members of AEACT. It is apparent from Mr Varney's e-mail that Mr Blake had referred to that memorandum at the meeting of AEACT held earlier that day.
* A memorandum entitled "Strategy Update" dated 23 October 2000 was sent by Mr Varney to, among others, Mr Blake in which he referred to there being "2 Altona EA options". It is not necessary to set out fully what was contained in Mr Varney's memorandum. However, it should be noted that it was said to have been written before any firm decision had been taken to close either of the two plants at Altona, or to deal with the problem of redundancies created by that decision by a spill and fill. Under the heading "Strategy 2" Mr Varney's memorandum included the following passage.
"Starting point* EAIII voted up
but
* Dispute with Olefins
Introduce fundamental business change ie 2 plant closures (HP and SBR). Note: need solid business case justification.
Hence, site-wide spill. Note: site-wide to be defined by business case.
Fill all positions on the basis of competency.
Avoid 3 problems:
1. "site-wide spills deals with victimisation
2. fundamental business change deals with not bargaining in good faith
3. better costs/benefits
Costs: 3 X $10M plus 40 redundancies at Olefins
Benfits: 8 jobs gone plus cracker performance $20M per year plus EAIII all stops out plus 2 plant closures
plus lots of deployment
Fill on the basis of competency
..." (emphasis added)
The applicant submitted that Mr Varney's reference to the need for a solid business case justification demonstrated that he was aware of the need to make it appear that the relevant decisions were being taken for sound commercial reasons, when in truth they were being taken for prohibited reasons.
* A memorandum entitled "Workforce Renewal" dated 27 October 2000 sent by Mr Blake to, among others, Mr Varney. This memorandum spoke of the closure of several of the plants at Altona and relevantly commented:
"...5: As we shutdown whole plants we need to take the opportunity to upgrade our workforce on the long term core plants, by allowing the best people to be chosen between the shutdown plants and the core plants. This would be done by selection against criteria.
6: There are skill synergies between HP and LP ....
7: Hence, when for example HP is shut we would look to spill and fill between LP and Olefins.
8: When PP is shut we would look to spill and fill between PE and Olefins.
9: When BR and/or SBR are shut we would look to spill and fill with Olefins.
10: This allows us to continuously upgrade our workforce in the long term core plants. In the long term we must have the best workforce possible in each of these plants. Workforce competency is an essential part of potential competitive advantage."
* At an AEACT meeting on 1 November 2000 the minutes record the following:
"7 Strategy UpdateThere are two future announcements that will impact upon the resolution of the NUW dispute and EA3:
(1) The Boarding (sic) meeting agreed in principle that SBR and HP will close within six months.
(2) The BMT has made the decision that as a result of the plant closures there will be a "spill & fill" process and that Olefins will be part of the pool. This process has been chosen to ensure the future needs of the business are met, objective criteria can be used and it ensures that the best people are kept." (emphasis added)
The applicant submitted that this memorandum provided support for its claim that the relevant decision-maker was the BMT, and not Mr Varney or Mr Blake.
* A memorandum dated 8 November 2000 sent by Mr Blake to, among others, Mr Berton and Mr Harvey, setting out several possible rationales for not having included the Resins' contractors in the proposed spill and fill. The applicant claimed that this memorandum supported its contention that the decision to conduct a spill and fill had been taken for prohibited reasons.
74 The applicant submitted that in the face of these internal company documents, the evidence given by Mr Varney and Mr Blake that they had not been influenced in any way by any consideration other than the desire to retain as employees those who were the "best for the job" rang hollow, and should be rejected.
75 The applicant also relied upon what it submitted was the unexplained failure of the respondent to call a number of other key players who, on the basis of these internal company documents, had obviously played a role in the decision to conduct a spill and fill. The applicant submitted that I should infer from the respondent's failure to call then that their evidence would not have assisted the respondent's case: Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298.
76 Finally, the applicant commented upon what it submitted was the fact that there were surprisingly few contemporaneous records discovered regarding the activities of the BMT at the time in question. The implication was that the respondent had either not discovered relevant documents, or that the BMT had not committed to paper discussions which might be embarrassing.
The applicant's claim under s 170NC
77 The applicant's claim under s 170NC is that the respondent's decision to conduct a spill and fill which included the Olefins employees amounted to action taken to coerce those employees into accepting EA III. The applicant submitted that it was plain that the respondent wanted the NUW to be part of a single site-wide certified agreement. It should be inferred that the decision to conduct the spill and fill was taken as a coercive measure by which that objective could be achieved.
78 The applicant recognised that the first issue to be determined was whether the decision to conduct a spill and fill was capable of amounting to "coercion" within the meaning of that term in s 170NC. The applicant referred to the judgement of Finkelstein J in Finance Sector Union v Commonwealth Bank of Australia [2000] FCA 1372 in support of this contention. The applicant submitted that the relevant decision amounted to a threat of dismissal, and therefore constituted coercion. Alternatively, it was submitted it constituted coercion because it rendered the Olefins employees' employment less secure.
79 As I understood the applicant's argument, it was also contended that the respondent had sought to coerce the Olefins employees into accepting EA III by having instituted proceedings in the Supreme Court of Victoria in response to certain picketing activities. It appears that the respondent had obtained an injunction against those activities which was subsequently lifted because of a failure on the respondent's part to have made full disclosure of all relevant matters.
80 The applicant submitted that if it established any of the contraventions of the Act upon which it relied the appropriate form of relief would be an injunction that would prevent the respondent from including the Olefins employees in the spill and fill. The applicant also submitted that penalties should be imposed for those contraventions.
The respondent's contentions as to law
81 In its contentions as to law, the respondent addressed firstly the construction of s 298K. It submitted that this section was directed to an examination of the circumstances of individual employees, and had no application to a claim made by an industrial association purporting to act on behalf of a broad and general class of employees.
82 The respondent relied in support of this submission upon the reasoning of a Full Court comprising Black CJ, Beaumont and Ryan JJ in BHP Iron Ore Pty Ltd v Australian Workers' Union [2000] FCA 430; (2000) 171 ALR 680. Their Honours said at 689:
"It has to be borne in mind, in construing s 298K, that it proscribes conduct by "an employer" directed to "an employee" or "other person" (emphasis added). That use of the singular suggests that the alleged injury or alteration of position has to be examined in the light of the circumstances of each individual employee. (It is not the point that in the interpretation of statutes, the singular ordinarily includes the plural; here we are concerned with the indications of legislative intention to be discerned from the actual language used.) It is also significant that the conduct struck at by each paragraph of s 298K is expressed by an active verb: "dismiss", "injure", "alter the position", "refuse to employ", and "discriminate". That implies that the proscription is essentially against an intentional act of the employer directed to an individual employee or prospective employee." (emphasis added)
83 The respondent referred also to pp 698-703 of that judgment.
84 The respondent relied also upon the judgment of Finkelstein J in CPSU v Telstra Corporation Ltd (2000) 99 IR 238 at 245-246 where his Honour said of, in relation to the passage set out above:
"This passage indicates that it is necessary to assess the position of each individual employee in order to decide whether that employee has been injured or has had his position prejudicially altered. The implication is that the subject for investigation is the actual effect of the conduct about which complaint has been made. It is not sufficient for there to be only an intention to act against an employee for it to be concluded that an employee has been injured or has had his position altered. Before that can occur the intention must be acted upon in some way.This is not to say, however, that the Court is powerless to intervene in the case of an imminent risk of injury as distinguished from injury which has already been inflicted. The power of the Court to grant quia timet relief to prevent a contravention of s 298K is not in doubt ... No application has been made for such relief, perhaps because of the difficulty of framing an appropriate order ...
Be that as it may, although there has been a "threat" to contravene s 298K(1) in the sense understood by equity lawyers, there has been no actual contravention of that section ...."
85 Finally the respondent relied upon the judgment of Kenny J in Australian Workers' Union v BHP Iron Ore Pty Ltd (supra) at pars 53-54 where her Honour observed:
"Section 298K(1) is, upon this view, concerned with the conduct of an employer that is directed to an individual employee. This does not mean that in dismissing one employee who is a union member for a prohibited reason, an employer commits a civil wrong, and that wrong is not committed if, for the same reason, the employer dismisses all employees who are union members. The Full Court was directing its attention to the nature of the injury contemplated by the provision. That is, the conduct in question must injure an employee individually in the sense that it would have injured him or her, regardless of whether it was actually done to an individual employee or a group of employees. The relevant inquiry is whether an employer has, by the employer's conduct, injured the position of an employee individually: ... The Full Court [in BHP Iron Ore Pty Ltd v Australian Workers Union [2000] FCA 430; [2000] 171 ALR 680] must have intended to exclude conduct that injured individuals only when directed to a class of employees."
86 The respondent next submitted that unless the operation of s 298K(1) is first attracted, there is no reason to embark upon an examination of the issues raised by s 298L, much less whether s 298V comes into operation. The respondent submitted that the mere possibility that some Olefins employees might not be selected for retention at the conclusion of the spill and fill did not give rise to any contravention of s 298K because:
* announcing that a decision will be made at some date in the future as to which employees from among a particular pool will be made redundant, and which employees will be kept on, according to specified criteria, is incapable, of itself, of amounting to a "threat" to dismiss any individual employee;
* a decision of that type is not capable, of itself, of constituting an injury to any particular employee in his or her employment; and
* nor is a decision of that type capable, of itself, of prejudicially altering the position of any employee.
87 The respondent submitted that having regard to the size of the potential pool, the number of positions to be made redundant, and the number of Olefins employees, it was clearly not possible that all these employees could lose their employment as a result of the spill and fill. The respondent submitted that until that process had been completed it was not possible to ascertain who, among the Olefins employees, would not be retained.
88 The respondent acknowledged that the decision to conduct a spill and fill might well have led the Olefins employees to believe that their jobs were less secure than they had previously been. The respondent submitted that this did not mean that those employees had been threatened with dismissal, injured in their employment, or had their positions altered to their prejudice. The creation of a sense of job insecurity, without more, was said to be incapable of amounting to any of the forms of contravening conduct contained within s 298K. Presumably this was on the basis that such a belief on the part of the employees was too intangible, and far removed from, the actual harm which was proscribed by that section. The respondent acknowledged that it was possible that contravening conduct might be demonstrated in relation to any individual employee made redundant after the spill and fill had been completed. That would depend upon the reasons for that particular employee being terminated. The relevant decision-maker, whose reasons would be scrutinised, would be the person who decided not to retain that particular employee, and not the person who decided that there should be a spill and fill to deal with the problem of redundancies. The respondent submitted, however, that the present application had been instituted prematurely, and until the position had crystallised, it could not be said that there had been any contravention of the Act.
89 The respondent submitted that upon the true construction of s 298L(1)(a), it could not be said that the decision to conduct a spill and fill was taken for a prohibited reason. That provision established that it was a prohibited reason to take contravening conduct because an individual employee was an officer, delegate or member of an industrial association. It was those specific characteristics, rather than other features typically associated with trade unionism generally, which had to actuate, in whole or in part, the conduct impugned.
90 The respondent relied in support of this submission upon the observations of Kenny J in Australian Workers' Union v BHP Iron Ore Pty Ltd (supra) discussed above. The meaning of the term "member" in that context was to be restricted to membership of an industrial association as such, and did not extend to a person's activities as a member of such a body. The respondent submitted that there was nothing to suggest that the decision to implement a spill and fill had been taken by reason of the union membership of the Olefins employees, still less by reason of any individual Olefins employee's union membership. It was submitted that those Olefins employees retained, and any that might be made involuntarily redundant, would all share the common characteristic of membership of the NUW. It was submitted that it followed that their membership as such could not relevantly be described as an "operative" reason for the decision to conduct a spill and fill.
91 The respondent also submitted, that it was clear there are other NUW members at the Altona plants. Those employees would, on any view, be retained. That fact alone denied the proposition that union membership as such, or membership of the NUW in particular, had been a factor in the decision to conduct a spill and fill.
92 In relation to s 298L(1)(l) the respondent submitted that the applicant's case rested upon little more than a bare allegation. It was submitted that the evidence did not go beyond demonstrating that at some stage early in October 2000 the NUW declared its support for the independent stance taken by the Olefins employees. The NUW position which crystallised on 4 October 2000, and which generated the subsequent protected action, was said to be one of resistance to change, not one seeking "better industrial conditions" or expressing "dissatisfaction" with existing conditions.
93 Finally, the respondent submitted, s 298L(1)(l) must be interpreted from the point of view of individual employees, and not the Olefins employees as a class. The evidence demonstrated that those employees were not unanimous in their decision to take protected action. Moreover, the evidence failed to demonstrate that any individual employee was relevantly dissatisfied with his conditions of employment.
94 Turning to s 170MU the respondent submitted that this provision should be construed in the same manner as s 298K. Accordingly, attention must be directed to the circumstances of individual employees. The respondent submitted that no occasion had yet arisen for any such examination.
95 Finally, the respondent turned to s 170NC. As noted earlier, unlike s 298K and s 170MU, s 170NC carries no reverse onus.
96 The respondent submitted that s 170NC should be construed strictly, in accordance with the approach taken by Gyles J in Finance Sector Union v Commonwealth Bank of Australia [2000] FCA 1468 and not in the broader sense supported in some of the other authorities dealing with this section. In Finance Sector Union v Commonwealth Bank of Australia Gyles J observed that the proper construction and application of the section was not settled. He said at pars 18-34:
"18. The critical question is the meaning of the word "coerce" in s 170NC. There is an inconclusive discussion of that question by the Supreme Court of Victoria Court of Appeal in National Workforce Pty Ltd v Australian Manufacturing Workers' Union (No 2) (1997) 76 IR 200 at 221. The only other general statement in the cases which have dealt with the section to which I have been referred is that by Finkelstein J in his interlocutory judgment in Finance Sector Union v Commonwealth Bank of Australia [2000] FCA 1372, where his Honour said (at par 44):"What constitutes coercion? Presumably it is no more than one form of inducement, but a particularly nasty form. A person will coerce another to act in a particular way if the first person brings about that act by force. It is for that reason that a threat will amount to coercion. Coercion will cause a person to act in a way that is, in a sense, non-voluntary (I do not mean involuntary in the legal sense)."
That was said in a context in which his Honour was considering s 298M as well as s 178NC.
...
19. The Macquarie Dictionary defines "coerce" in the following way:
"1. To restrain or constrain by force, law, or authority; force or compel, as to do something. 2. To compel by forcible action."
The New Shorter Oxford English Dictionary defines "coerce" as:
"1. Forcibly constrain or impel (into obedience, compliance, etc); force or compel to do. (b) Enforce. 2. Enforce obedience; use coercive measures."
"Coercion" is defined in the New Shorter Oxford English Dictionary as:
"1. Constraint, restraint, compulsion; the controlling of a voluntary agent or action by force. 2. The faculty or power of coercing or punishing; the power to compel assent. 3. Government by force; the employment of force to suppress political disaffection and disorder. 4. Physical pressure; compression. Now rare."
20. The legal dictionaries refer to line of authority which was summarised in National Workforce v AMWU (No 2) (supra) at 221 as holding that the word "coerce" required wrongful, illegitimate or illegal action or, at any rate, the negation of choice (Allen v Flood [1898] AC 1 at 98, 128-9; Hodges v Webb [1920] 2 Ch 70 at 86-7; White v Riley [1921] 1 Ch 1; and Goddard v Osborne (1978) 35 FLR 122). I confess to having some difficulty in understanding the discussion of a legal as opposed to an ordinary meaning of "coercion" in National Workforce v AMWU (No 2) at 221. All of the dictionary meanings involve the negation of choice or compulsion. In my opinion, there is a significant difference in ordinary meaning between concepts such as influence, persuasion, inducement and the like, on the one hand, and coercion, on the other.
...
25. I am satisfied that the ordinary meaning of "coerce", the line of cases beginning with Allen v Flood (supra) to which I have referred (particularly in an industrial setting) and the authorities in relation to s 170WG, particularly that of the Full Court in Schanka, all point in the same direction, and are to be applied. This conclusion is directly contrary to proposition (3) put by Mr Hodgkinson, and requires further consideration of his propositions (1) and (5).
26. The genesis of proposition (3) (see par 16) is to be found in the interlocutory judgment of Merkel J in Australian Workers Union v Yallourn Energy Pty Ltd (1999) 95 IR 207 ([2000] FCA 65). In that case (as here) the parties were engaged in bargaining during a bargaining period initiated pursuant to s 170MI of the Act. Industrial action caused the Yallourn Energy site to cease functioning, leading to financial losses by Yallourn Energy of many millions of dollars (and serious power shortages in Victoria). The unions claimed that the industrial action was protected action for the purposes of the immunity granted under s 170MT(2). Merkel J held that on a prima facie basis on the evidence before him it was likely that the action was protected.
27. Yallourn Energy gave notice to the Industrial Relations Commission ("IRC") under s 166A of the Act of its intention to bring an action in tort against the unions and their officers, members and employees arising out of the industrial action. In the event, a certificate was only sought in relation to the conduct of the unions and not of its members. The IRC granted the certificate, with the consequence that Yallourn Energy was entitled to commence proceedings in tort in relation to the industrial action. Proceedings were brought by the unions to restrain the bringing of any such proceedings as to do so would be a breach, inter alia, of s 170NC(1) of the Act. Reliance is placed on behalf of the Bank upon the following passage from the judgment (at 73) in relation to the finding that there was a serious issue to be tried under s 170NC:
"There is a degree of unreality about the submission of counsel for Yallourn Energy that the threatened proceeding is extraneous to and is unconnected with the employer's bargaining position in relation to the new enterprise agreement. Earlier in these reasons I outlined the steps taken by the various parties in the course of the present dispute. In my view each step and counter step by the parties in the current dispute appears to be intended to advance their respective bargaining positions in relation to the new enterprise agreement. Whilst there will be additional reasons for particular conduct to be engaged in during the escalation of the dispute, each step appears to be integrally related to each party's position in the bargaining process. Thus, whilst a reason for the proposed proceeding might be to recover loss, I would infer from the limited evidence before me that, on a prima facie basis, the proposed proceeding is another step to assist the position of Yallourn Energy in the bargaining process." (emphasis added)
28. This concept appears to be directly reflected in the interlocutory judgment of Marshall J in Construction, Forestry, Mining & Energy Union v Multiplex Constructions (supra):
"27. A reason for the Supreme Court action, or further proposed Supreme Court action, may well be to recover financial loss but if it is also taken with intent to advance a position in a bargaining process or detract from the position of a party in the bargaining process s 170NC(1) of the Act will be contravened."
29. For the sake of completeness, I should say that I derive little assistance on the question of construction from the interlocutory decisions in CFMEU v Master Builders Association of Victoria (No 1) [2000] FCA 168, CFMEU v Mirvac Constructions Pty Ltd (2000) 96 IR 458 ([2000] FCA 341) and Auspine Ltd v CFMEU [2000] FCA 501.
30. It is clear that if the passages of Merkel J and Marshall J relied upon by the Bank are intended to state the test for breach of s 170NC, then they are far wider than, and inconsistent with, my construction of the section. Mr Kimber SC, for the Union, submits that they do not represent the considered view of either judge as the proper construction of intent to coerce in s 170NC, but are merely observations in the course of urgent interlocutory proceedings during a far reaching industrial campaign. He submits that they are to be understood in a context where it was held that there was a prima facie case that most of the industrial action had been protected action.
31. I agree with Mr Kimber's submissions. Neither of their Honours express themselves in a manner which suggests that he was resolving an issue as to the construction of the section, and neither refer to pertinent authority. This is not surprising in view of the nature of the proceedings. The fact that the result in these, as well as other, interlocutory decisions might have been different if what I regard as the proper test had been applied is not to the point.
32. I should also refer again to the decision of Finkelstein J in Finance Sector Union v Commonwealth Bank of Australia (supra), a case between these parties arising out of the very negotiations which are the context for this case. I have already set out par 44 (see par 18). His Honour later said (at par 51):
"The question for the bank then was how it could force the union to accept its July offer, remembering that it was of the view that a higher offer was not commercially justified. The bank needed to find a lever to compel the union to act. The union was reasonably aggressive in its negotiations, with the support of its members."
33. These passages are consistent with my view as to the necessity for compulsion if coercion is to be intended within the section. His Honour does not, however, refer to the necessity for the means of coercion to be unlawful, illegitimate or unconscionable. The Bank submits that his Honour must have taken the view that it was unnecessary to so find, because it is difficult to see how it could be concluded on any basis that offering Australian workplace agreements to workers could be so described without denuding that requirement of all content. Far from being unlawful, illegitimate or unconscionable, the Act encourages the offer of Australian workplace agreements by employers to employees (cf Ryan J in Maritime Union of Australia v Burnie Port Corporation (supra) para 61-72). Indeed, it is submitted on behalf of the Bank that if the decision of Finkelstein J was correct, it follows that it should succeed on its cross-claims.
34. I do not agree. It would be rare (if ever) that a decision as to whether to grant an interlocutory injunction would be of later precedent value on a substantive issue of law, particularly an issue of law not directly addressed in the decision. I am not concerned with the correctness or otherwise of the decision. I appreciate that the result is that the Bank may have the worst of all worlds in relation to the current negotiations, but I cannot let that govern my construction of the statute. The interlocutory orders restraining the Bank will only be in operation until further order of the Court, and presumably there will be an urgent final hearing to alleviate the unfairness to the Bank which will ensue if it ultimately succeeds. In any event, as I have said, his Honour did apply an intent to compel test which is consistent with my view of the section."
97 The respondent submitted that, applying his Honour's approach to the evidence in the present case, there was no contravention of s 170NC because:
* there was no evidence that anything done by the respondent in connection with the negotiations for EA III was, whether so far as the NUW was concerned or otherwise, "unlawful, illegitimate or unconscionable"; and
* there was no evidence that the respondent was resolved to insist that the NUW became a party to the certified agreement, much less that it intended to compel such a result regardless of the wishes of the NUW.
The respondent's contentions as to fact
98 The respondent emphasised the history of the Qenos operations at Altona, and the fact that since December 1992, the four unions that were party to the award and certified agreement applying at the site had formed a "single bargaining unit". That pattern of industrial regulation had been broken when, for the first time, the Olefins employees and the NUW asserted a claim for a separate agreement, after those employees had been outvoted by their fellow workers at a mass meeting. Shortly thereafter they took protected action to further their claim.
99 The protected action caused the Olefins plant to close. Within a short time the other plants at Altona had closed as well. The Olefins employees understood that this would occur and intended to bring about this result.
100 The respondent submitted that it had done no more than resist the pressure placed upon it by the industrial action taken by the Olefins employees, and that it had acted legitimately in doing so. The decision to close the two plants had been taken for sound commercial reasons, and not in response to that industrial action. The desire to persevere with a single site agreement had been taken because separate agreements would, as Mr Varney put it, amount to a "potential dog's breakfast". The respondent's attempts to proceed to certification of EA III could not, in context, amount to the use of "illegitimate, unlawful or unconscionable" means or pressure. Nor could the respondent's desire to adhere to its objective of maintaining the site-wide pattern of industrial negotiation be described as evidence of intent to coerce the applicant, or the Olefins employees. Accordingly, the respondent submitted, the claim under s 170NC should be dismissed.
101 In relation to the claims under ss 298K and 170MU, the respondent submitted that Mr Varney's account of the commercial environment in which the decision to close the two plants had been taken should be accepted. It was clear that this decision, though finally taken only in late October 2000, had been under consideration for a substantial period of time. The applicant had not suggested that the decision to close the plants had been taken because of the industrial action of the Olefins employees. The respondent submitted that there was no basis for any such conclusion. At its highest for the applicant the evidence suggested that the decision to close the plants may have been brought forward by a short period by reason of the industrial strife at Altona.
102 The respondent noted that the decision to close these two plants had been taken in the context of a proposal to convert the SCAL-1 plant to ethane feed, rather than oil-based feed. That conversion of the SCAL-1 plant would have led to the closure of the BR plant at Elastomers and the Poly plant at Resins by around 2003.
103 The respondent submitted that it was clear that the decision to conduct a spill and fill was taken by Mr Varney and Mr Blake, and not by anyone else. Neither the possibility, advanced purely hypothetically, that Mr Fairley had the power to intervene and/or to veto their decision, nor the possibility that serious resistance from the BMT might have prompted further consideration of this decision, provided any foundation for the applicant's suggestion that Mr Varney and Mr Blake were not the relevant decision-makers.
104 In support of this submission the respondent referred to certain observations of Kenny J in Australian Workers' Union v BHP Iron Ore Pty Ltd (supra) at pars 172-173. There her Honour held that the mere fact that a committee had power to veto a particular proposal did not mean that the committee made the operative decision.
105 The respondent submitted that Mr Varney and Mr Blake had each given a credible explanation as to why a spill and fill which included the Olefins employees was regarded as the most appropriate course to follow.
106 Both Mr Varney and Mr Blake said that once the Board had determined to close the two plants, and it became clear that there would be further plant closures in the future, they had to turn their minds to the problem of how to deal with redundancies. Both said that they had considered the possibility of voluntary redundancies, but rejected that option because they believed that the company would lose the services of some of its best employees by following that route. Both said that their aim was to retain the best of the current crop of employees, and that they considered that a spill and fill, conducted by independent human resources experts, such as Morgan & Banks, was the preferred method for identifying those employees.
107 Mr Blake said that the precise details of the spill and fill had not yet been finalised. He said that originally it had been contemplated that those who received the lowest scores upon the basis of the assessment criteria would be made redundant. However, the current thinking was that perhaps only the thirty or so at the bottom of the rankings would be dismissed. Above that number a range of factors would be taken into account. Mr Blake said that within that group, the willingness to take voluntary redundancy might be taken into account. He also said that assuming that two candidates were otherwise approximately equal when assessed against the selection criteria, preference would be given to an employee with experience in operating a particular plant, rather than an employee who might have to receive extensive training in order to do so.
108 The respondent submitted that the conclusions arrived at by Mr Varney and Mr Blake regarding the undesirability of voluntary redundancies were supported by the independent views of the experts at Morgan & Banks. The respondent submitted that there was no reason to doubt Mr Varney's honesty or integrity when he said that so far as he was concerned the selection process to be followed had to be open and objective.
109 The respondent drew attention to nature of the selection process to be followed. Mr Jamieson and Mr Bristow described that process in detail. It will be recalled that Mr Jamieson had been the project team leader for the spill and fill that had been conducted in Resins in May 2000. Mr Bristow had been involved in that process. He had considerable experience with the problems associated with large-scale redundancies, and he had been involved in organising spill and fill processes on previous occasions for other clients.
110 The respondent submitted that it was clear that the assessment of personal capacities had been common in the recruitment of Olefins employees since the 1970s. For external applicants seeking work in the Olefins plant it had been routine to carry out reference checks. Internal applicants had been assessed in the light of information provided by their supervisors. These features were incorporated in the proposed spill and fill.
111 The respondent submitted that there was nothing to suggest that the decision taken by Mr Varney and Mr Blake to handle the problem of redundancies by conducting a spill and fill had anything to do with union membership generally, or membership of the NUW in particular. There was nothing to suggest that the NUW would cease to represent those employees who remained at Olefins. There was no evidence that either the traditional pattern of representation, or the traditional method of negotiating enterprise agreements, would change.
112 The respondent submitted that once the Qenos Board had approved the closure of the two plants it was both logical and inevitable that the resulting redundancies would be handled in a way that would give effect to the respondent's long-term corporate objective of "workforce renewal". That objective would be pursued whether or not industrial action took place.
113 The respondent also submitted that it was a striking feature of the internal company documents upon which the respondent's witnesses were extensively cross-examined that they did not at any point suggest a connection between the decision to conduct a fill and spill, and either of the prohibited reasons identified by the applicant: Australian Workers' Union v BHP Iron Ore Pty Ltd (supra) at par 218 per Kenny J.
114 The respondent submitted that it was abundantly clear that not all of the Olefins employees would be made redundant. Mr Varney said that he fully expected that many of them would keep their jobs, on their merits, after the selection process had been completed. Mr Blake said that there was still a lot of fine-tuning to be done before the selection process was finalised and that he had no idea how many of the Olefins employees would ultimately be made redundant.
115 Finally, the respondent submitted there was nothing in the Act which discouraged, much less prohibited, the closure of plants, the resulting creation of redundancies, or the filling of vacant positions by a spill and fill process. Moreover, there was nothing to suggest that using the sophisticated ranking techniques developed by Morgan & Banks to identify the best of the company's employees was in any way sinister, or directed against the applicant or the Olefins employees.
116 The respondent submitted that the applicant's case was built entirely upon surmise and conjecture. The allegations were unsupported, and depended entirely for whatever viability they might have upon answers elicited in cross-examination of the respondent's witnesses, coupled with statutory reversal of the onus of proof. This was an unsatisfactory basis upon which to find that the respondent had contravened any of the provisions of the Act.
Findings
117 In my view the respondent's contentions of law and fact should, in the main, be accepted.
118 I consider that the applicant's claim that the respondent has contravened s 298K is largely misconceived. In BHP Iron Ore Pty Ltd v Australian Workers' Union (supra) the Full Court determined that the reach of s 298K is limited in that it proscribes conduct which is directed to an individual employee or prospective employee, and not conduct directed to a broad class of employees. That decision is binding upon me. The decision by Mr Varney and Mr Blake to conduct a spill and fill which included the Olefins employees was not, in my view, conduct directed to an individual employee in the sense described by the Full Court.
119 There are other legal difficulties associated with this claim. I am not persuaded that the contravening conduct alleged is capable of being characterised as a "threat" of dismissal. All that had occurred when the applicant instituted this proceeding was that the respondent had communicated to its employees that there would be a spill and fill, and that the Olefins employees would be included. To adopt the language of Finkelstein J in CPSU v Telstra Corporation 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.
120 In the same way, I am not persuaded that conduct of this nature is capable of giving rise to an injury to any particular employee in his or her employment, or that it can be said prejudicially to have altered the position of any individual employee.
121 The situation confronting members of the Maritime Union of Australia ("the MUA") in Patrick Stevedore Operations No 2 Pty Ltd v Maritime Union of Australia (supra) was quite different. There the conduct impugned was a decision by the employers to dismiss all members of the MUA in their employ, and to ensure that no funds were available to meet the legal obligations owed to those employees. That led to injunctive relief being granted under s 298K. However it is a far cry from the course which Mr Varney and Mr Blake proposed to follow in the present case.
122 It is one thing for an employer to decide to dismiss all its employees forthwith because of their membership of a particular union. That conduct falls squarely within s 298K. It is conduct which is directed to individual employees in the sense spoken of by the Full Court in BHP Iron Ore Pty Ltd v Australian Workers Union (supra), albeit all individual employees. It is another thing altogether for an employer to decide that an as yet uncertain number of employees who rank lowest after being tested for certain skills will be made involuntarily redundant. A decision of that character seems to me not to be sufficiently proximate to any of the forms of contravening conduct contained within s 298K (or s 170MU). It is not relevantly directed at individual employees.
123 Moreover, it is plain that among those who will be made involuntarily redundant at the conclusion of the spill and fill there will be employees who are members of unions other than the NUW. That makes it difficult to conclude that membership of the NUW is itself an operative reason for the decision.
124 I am not persuaded that s 298L(1)(a) should be construed as broadly as the applicant contends. To read into para (a) all of the activities which members of a union might conceivably engage in would, as Kenny J observed in Australian Workers' Union v BHP Iron Ore Pty Ltd (supra), render much of the remainder of s 298L(1) otiose. However, I am also not persuaded that the word "member" in par (a) should be confined to what is tantamount to mere possession of a union card, as her Honour was said by the respondent to have determined. It seems to me that at least the normal incidents of union membership, including what might be described as "ordinary union activity", are properly to be taken into account when determining whether the contravening conduct has taken place for a prohibited reason.
125 I am inclined to agree with the approach taken to s 5 of the Conciliation and Arbitration Act 1904 (Cth), the precursor to s 298L(1)(a), by Gray J in Gibbs v Palmerston Town Council (supra). His Honour's construction of that section plainly reflected its history, going back to the original provision in the Conciliation and Arbitration Act, s 9. That section was expressed in terms similar to s 298L(1)(a), prohibiting an employer from dismissing any employee "by reason merely of the fact that the employee is an officer or member of an organisation or is entitled to the benefit of an industrial agreement or award". The Act contained no provisions equivalent to ss 298L(1)(b)-(n). That suggests that s 9, as originally drafted, was intended to encompass at least some of the matters subsequently introduced by ss 298L(1)(b)-(n). It may be that these additional prohibited reasons were added as a matter of emphasis or clarification rather than because of any perceived restriction or limitation on the scope of the forerunner to s 298L(1)(a). However, having regard to my conclusions on other aspects of the applicant's claims, it is unnecessary for me to express any final view about this matter.
126 In relation to s 298L(1)(l), I am of the view that there is no evidence whatsoever to suggest that the Olefins employees were relevantly "dissatisfied" with existing conditions. This claim must therefore fail.
127 The applicant all but expressly acknowledged that its claim under s 170MU would stand or fall upon the same basis as its claim under s 298K. The reasoning of the Full Court in BHP Iron Ore Pty Ltd v Australian Workers' Union (supra) seems to me to be equally applicable to s 170MU. That claim must therefore also fail.
128 I turn then to the applicant's claim under s 170NC. In my opinion that claim must be rejected. There is nothing to suggest that the decision to conduct a spill and fill which included the Olefins employees was taken with intent to coerce the NUW, or those employees, into accepting EA III. In my view the analysis of the term "coerce" by Gyles J in Finance Section Union v Commonwealth Bank of Australia (supra) is compelling, and correctly states the reach of the relevant provision. Applying his Honour's approach, there is nothing to suggest that anything done by the respondent in relation to, or in connection with, EA III was "unlawful, illegitimate or unconscionable".
129 It follows for the reasons set out above that the applicant's claims cannot be accepted. If, however, I were to reach a different conclusion concerning the construction of the relevant provisions of the Act, I would still dismiss these claims upon the basis that they are unsupported by the evidence before me.
130 The critical matter to be determined in this case is whether the decision taken by Mr Varney and Mr Blake to conduct a spill and fill including the Olefins employees was taken for a "prohibited reason" (s 298K), or wholly or in part because those employees were engaged in protected action (s 170MU).
131 The applicant contends that I should infer that this decision was taken in order to enable the respondent to rid itself of a number of militant employees, all of them members of the NUW, who had long been a thorn in its side. In support of that submission I was invited to infer that the decision of these employees to take industrial action, thus halting progress towards resolving the impasse surrounding EA III, had so frustrated and angered management that they resolved to eliminate these employees. My attention was drawn to some of the internal company documents, particularly the memoranda prepared by Mr Berton and Mr Harman, in support of that submission. The applicant submitted that, at the very least, the respondent had failed to discharge the onus resting upon it to disprove the allegation that it had been actuated by impermissible considerations.
132 The respondent's submission is that I should accept the evidence of both Mr Varney and Mr Blake that the spill and fill was chosen for wholly proper reasons, and not in order to get back at the Olefins employees for having taken protected action, or because they were members of the NUW, a union with which management have had difficulty.
133 Both Mr Varney and Mr Blake were extensively cross-examined. They were each questioned in a forceful manner about the reasons that they had given for having decided to conduct the spill and fill. They were also questioned repeatedly about the comments attributed to them in the internal company documents, and also about the comments made by others who were involved in management, including in particular Mr Berton and Mr Harman.
134 In the end, after giving this matter careful consideration, I am unable to conclude that Mr Varney or Mr Blake gave perjured evidence before me. In my view there was nothing inherently improbable about their explanations for having elected to have a spill and fill rather than voluntary redundancies. Their credibility was generally unshaken. Mr Varney in particular impressed me as an honest witness. I consider that he is sincere in his belief that a spill and fill, conducted in a scrupulously fair manner, will produce the best outcome for the company because it will identify the best employees. I accept both his evidence and that of Mr Blake.
135 It need hardly be said that it is not appropriate for me to express any views about the wisdom of the decision to conduct a spill and fill. Mr Bristow acknowledged that there were widely divergent views among the experts in the field regarding the merits of spill and fill processes when dealing with redundancies, as against the use of other mechanisms for dealing with that issue. What is clear, however, as the respondent submitted, is that the Act does not proscribe the use of spill and fill processes. It is only if such processes are carried into effect for impermissible reasons that the Act may be contravened.
136 It is understandable that the Olefins employees might view with a degree of cynicism the protestations of management that those employees are not being targeted by the proposed spill and fill. That cynicism is undoubtedly heightened by the unfortunate conjunction of events whereby the decision to conduct the spill and fill was taken within weeks of the commencement of the protected action. However, as RD Nicholson J noted in Maritime Union of Australia v Geraldton Port Authority (supra) at 83-84, the fact that there is some connection between the employer's act and the employee's union membership or activities does not mean that the employer did the act because the employee was a union member or because of the employee's activities. Whether an employer was motivated by a prohibited reason or reasons which included a prohibited reason is a question of fact, often involving questions of judgment. The fact that a particular act precedes another does not necessarily mean that it causes that other to occur.
137 It may be that some members of management viewed the spill and fill as providing a perfect opportunity to rid the company of a group of employees who had been particularly irksome. It would not be difficult to draw the conclusion that Mr Berton and Mr Harman, at least, considered that to be a beneficial by-product of the spill and fill. However, they were not the relevant decision-makers. There is no evidence that either Mr Varney or Mr Blake saw the matter in these terms.
138 I do not regard Mr Blake's comment in response to Mr Harman's memorandum of 10 October 2000 as amounting to a wholesale adoption of Mr Harman's somewhat intemperate views. In my opinion Mr Blake was doing no more than signifying his own frustration at what had transpired that day. His willingness to "agree" with Mr Harman's sentiments should not be construed with an eye finely tuned to detail, as though Mr Blake's memorandum, hastily produced, constituted a carefully drawn document with legal significance.
139 I have considered carefully the applicant's contention that Mr Varney's "Strategy 2" memorandum of 23 October 2000 constitutes evidence that he was motivated by a desire to get rid of the Olefins employees, or at least the most militant of them. In my view that memorandum should not be so interpreted. It is scarcely surprising that management were considering a range of options in terms of dealing with the timing of plant closures, and consequential redundancies. Mr Varney emphasised that all positions should be filled "on the basis of competency", and there was no suggestion in the document that the true intent was to dismiss employees for having taken protected action, or for being members of the NUW. The reference to plant closures was accompanied by a reference to a need for "a solid business case justification" but, in context, I do not read this as code for subterfuge.
140 There is in any event a difference between welcoming an outcome which is reasonably foreseeable as a by-product of a particular course of action, and being motivated, in whole or in part, by a desire to achieve that outcome. The former state of mind is not sufficient to establish that the conduct in question was carried out for a prohibited reason. The latter is sufficient for that purpose.
141 It is scarcely surprising that once the plant closures were announced, Mr Varney and Mr Blake would turn to Morgan & Banks for assistance in dealing with the problem of redundancies. It was only a few months earlier that that firm had successfully handled the redundancies at Resins.
142 I should say that Mr Jamieson impressed me as a witness, and as a man of considerable integrity. He had obviously given a great deal of thought to the question of how to deal with the new redundancies. His said that he was determined to ensure that the spill and fill was conducted in a fair and objective manner. I accept his evidence in that regard. I do not consider that the Olefins employees will be significantly prejudiced, in comparison with other employees of the respondent, if they undergo the screening process proposed. If anything, those who are experienced operators within the Olefins plant should have an advantage in the ultimate selection of those who will be retained over those who would have to undergo extensive retraining in order to be able to operate the Olefins plant and equipment.
143 It follows from all that I have said that, to the extent that it may have been necessary for it to do so, the respondent has discharged any onus which rests upon it to demonstrate that it was not motivated by impermissible considerations. It also follows for the reasons set out above that the applicant has failed to make good its contention that the respondent has contravened the provisions of the Act.
144 It may be that once the spill and fill has been completed, and the involuntary redundancies have been determined, it will emerge that a disproportionately high number of Olefins employees, all members of the NUW, have been dismissed. If that occurs, it will be open to the applicant to challenge the decision to dismiss those employees upon the basis that s 298K has been contravened. I do not suggest that this is likely to occur, and the evidence before me suggests that it will not.
145 The respondent submitted that I should take the unusual course of ordering the applicant to pay the costs of this proceeding. It was said that the application had been wholly misconceived, and that at the very least, it had been brought prematurely.
146 In my opinion there is no justification for departing from the general rule that costs in proceedings of this nature are not awarded. Some of the questions of construction raised were complex and several of the issues determined were reasonably finely balanced. There is no basis for any suggestion that the application was brought male fide. The fact that the applicant succeeded in obtaining interlocutory relief, though it failed to obtain final relief, suggests that several of the claims made were at least arguable.
I certify that the preceding one hundred and forty-six (146) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Weinberg. |
Associate:
Dated: 6 March 2001
Counsel for the Applicant: |
Mr W Friend and Mr RM Niall |
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Solicitor for the Applicant: |
Holding Redlich |
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Counsel for the Respondent: |
Mr B Buchanan QC and Mr S Wood |
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Solicitor for the Respondent: |
Freehills |
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Date of Hearing: |
29, 30 January 2001 and 12, 13, 14 February 2001 |
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Date of Judgment: |
6 March 2001 |
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