Adverse action and the general protection provisions

1. Adverse action and the general protection provisions Mark Irving Member of the Victorian Bar

2. Richard Feynman

4. On science First you guess. Don't laugh, this is the most important step. Then you compute the consequences. Compare the consequences to experience. If it disagrees with experience, the guess is wrong. In that simple statement is the key to science. It doesn't matter how beautiful your guess is or how smart you are or what your name is. If it disagrees with experience, it's wrong. That's all there is to it.

5. Adverse action • the employer: • (a) dismisses the employee; or • (b) injures the employee in his or her employment; or • (c) alters the position of the employee to the employee’s prejudice; or • (d) discriminates between the employee and other employees of the employer.

6. Membership and industrial activities 346 ( a ) - A person must not take adverse action against another person because the other person is or is not, or was or was not, an officer or member of an industrial association… Officer = an officer, delegate or other representative of the association.

7. 346 (b) Adverse action against an employer because the employee…. engages, or has at any time engaged or proposed to engage, in industrial activity A person engages in industrial activity if the person: (b) does, or does not: • (ii) organise or promote a lawful activity for, or on behalf of, an industrial association; or • (iii) encourage, or participate in, a lawful activity organised or promoted by an industrial association; or • (iv) comply with a lawful request made by, or requirement of, an industrial association; or • (v) represent or advance the views, claims or interests of an industrial association; or

8. 360 Multiple reasons for action 360 Multiple reasons for action • For the purposes of this Part, a person takes action for a particular reason if the reasons for the action include that reason.

9. 361 Reason for action to be presumed unless proved otherwise. “If: ( a ) in an application in relation to a contravention of this Part, it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and (b) taking that action for that reason or with that intent would constitute a contravention of this Part; it is presumed, in proceedings arising from the application, that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise. “the plain purpose of the provision [is to throw] on to the defendant the onus of proving that which lies peculiarly within his own knowledge.” [50]

10. Protective purpose of the provisions One purpose of the general protection provisions in Part 3-1 of the FWA is to protect representatives from victimisation as the result of the representatives’ activities on behalf of a union. An aim is to “remove fear of [adverse action] by an employer against an employee taking union office and performing the functions of that office” and to “ensure the threat of dismissal or discriminatory treatment cannot be used by an employer to destroy or frustrate an employee’s right to join an industrial association and to take an active role in that association to promote industrial interests of both the employee and the association.” Bowling v General Motors-Holden Pty Ltd (1975) 8 ALR 197 at 210 Davids Distribution Pty Ltd v National Union of Workers (1999) 165 ALR 550 at 583 per Wilcox and Cooper JJ

11. The facilitative purpose There is a second, facilitative purpose of the provisions. Historically unions have played a central role under the conciliation and arbitration system. This central role is retained under the current Act. Representatives at the enterprise level now play an active role in the industrial relations system.Part 3-1 facilitates the role of unions and their representatives in the workplace. The ability of representatives to play an active role at the enterprise level is central to the effective functioning of the scheme established by the Act.A purpose of Part 3-1 is to ensure representatives are free to participate in industrial activities and to exercise workplace rights.Representatives need to be able to make demands, negotiate claims, resolve grievances and represent members in negotiations. Section 346 plays a central role in facilitating those functions. Australasian Meat Industry Employees’ Union v Belandra Pty Ltd [2003] FCA 910; (2003) 126 IR 165 at [113]-[133], especially at [126] and [133], Pearce v WD Peacock & Co Ltd (1917) 23 CLR 199 at 205, referred to approvingly in General Motors Holden Pty Ltd v Bowling (1976) 51 ALJR 235 at 241; 12 ALR 605 at 616, Bowling v General Motors-Holden Pty Ltd (1975) 8 ALR 197 at 210, Davids Distribution Pty Ltd v National Union of Workers (1999) 165 ALR 550 at 583

12. Barclay – the facts President of the AEU Sub-Branch at BRIT In the course of preparing for an audit, concerns were expressed by members of the AEU to Greg Barclay as their union representative. Four members told Barclay that: • They did not want him to disclose their names or detailed information about their complaints to the employer. • They did not want him to file a formal grievance or speak on their behalf to a line manager. • They were concerned about the possibility or reprisals if their names were revealed to management.

13. The e-mail sent to the 153 union members Subject: AEU – A note of caution “It has been reported by several members that they have witnessed or been asked to be part of producing false and fraudulent documents for the audit. It is stating the obvious but, DO NOT AGREE TO BE PART OF ANY ATTEMPT TO CREATE FALSE/FRADULENT DOCUMENTATION OR PARTICIPATE IN THESE TYPES OF ACTIVITIES. If you have felt pressuredto participate in this kind of activity please (as have several members to date) contactthe AEU and seek their support and advice.” Signed Greg Barclay, President, BRIT AEU Sub-Branch

14. The decision by the employer The employer found there was a prima facie case Mr Barclay had breached a policy. “It appears to me that such disciplinary action may be warranted because of: • the manner in which you have raised the allegation, via a broadly distributed email; • your actions in not reporting the instances of alleged improper conduct directly to your manager or me to enable us to take appropriate action; and • your refusal or failure to provide particulars of the allegations when asked to do so by your manager.”

15. The decision by the employer II Mr Barclay was suspended on full pay, denied internet access through the BRIT computer system and prohibited from entering the BRIT premises. The reason the decision maker gave for the action was that ‘Mr Barclay’s conduct in sending the Email on the basis that he is an employee of [BRIT] who is required to adhere to policy and procedures that govern his employment, not because of his membership of or role in the AEU …I made the decision to suspend Mr Barclay because I was of the view that the allegations against him were serious and I was concerned that if Mr Barclay was not suspended he might cause further damage to the reputation of [BRIT] and of the staff [of BRIT].’

16. Real and unconscious reasons [27] The central question under s 346 is why was the aggrieved person treated as he or she was? The determination of those questions involves characterisation of the reason or reasons of the person who took the adverse action. The state of mind or subjective intention of that person will be centrally relevant, but it is not decisive. What is required is a determination of … the “real reason” for the conduct. The real reason for a person’s conduct is not necessarily the reason that the person asserts, even where the person genuinely believes he or she was motivated by that reason. The search is for what actuated the conduct of the person, not for what the person thinks he or she was actuated by. In that regard, the real reason may be conscious or unconscious, and where unconscious or not appreciated or understood, adverse action will not be excused simply because its perpetrator held a benevolent intent. It is not open to the decision-maker to choose to ignore the objective connection between the decision he or she is making and the attribute or activity in question.

17. The zone of protection [73] and [74] All of the relevant conduct in issue in this case involved Mr Barclay in his union capacity. None of it involved him in his capacity as an employee of BRIT. Mr Barclay’s interaction with other members of the AEU, in receiving information, maintaining the confidence of the information received, and communicating with AEU members through his email, was all done for and on behalf of the AEU…If adverse action is taken by an employer in response to conduct of a union, it is impossible for that employer to dissociate or divorce from that conduct its reason for the taking of the adverse action simply by characterising the activity of the union as the activity of its employee.’

18. The rejection of the argument “it is erroneous to treat the onus imposed on an employer by s 361 as being made heavier (or rendered impossible to discharge) because an employee affected by adverse action happens to be an officer of an industrial association…. a person who happens to be engaged in industrial activity should not have an advantage not enjoyed by other workers. Central to the respondents' argument on this appeal was the contrary and incorrect view that Mr Barclay's status as an officer of an industrial association engaged in lawful industrial activity at the time that Dr Harvey took adverse action against him meant that Mr Barclay's union position and activities were inextricably entwined with the adverse action, and that Mr Barclay was therefore immune, and protected, from the adverse action.” [61]

19. Dissociation The prohibited reason for the adverse action must not be a substantial and operative factor for the adverse action. “It is a related error to treat an employee's union position and activity as necessarily being a factor which must have something to do with adverse action, or which can never be dissociated from adverse action. It is a misunderstanding of, and contrary to, Bowling to require that the establishment of the reason for adverse action must be entirely dissociated from an employee's union position or activities….The onus of proving that an employee's union position and activity was not an operative factor in taking adverse action is to be discharged on the balance of probabilities in the light of all the established evidence.” [62]

20. The decision maker’s reasons I [44] The imposition of the statutory presumption in s 361, and the correlative onus on employers, naturally and ordinarily mean that direct evidence of a decision-maker as to state of mind, intent or purpose will bear upon the question of why adverse action was taken, although the central question remains “why was the adverse action taken?” (and at [120] [140] The word "because" requires an investigation of Dr Harvey's reasons for her conduct….Examining whether a particular reason was an operative or immediate reason for an action calls for an inquiry into the mental processes of the person responsible for that action……[146] To search for the "reason" for a voluntary action is to search for the reasoning actually employed by the person who acted.

21. The decision maker’s reasons 2 “The respondents submit, with support from the Minister, that (a) questions of subjectivity as opposed to objectivity serve only to misdirect the correct interpretation of s 346; rather, the relevant inquiry concerns that which the employer must establish to avoid a finding of contravention….. Submission (a) should be accepted…. to engage upon an inquiry contrasting "objective" and "subjective" reasons is to adopt an illusory frame of reference. Such an inquiry into the "objective" reasons risks the substitution by the court of its view of the matter for the finding it must make upon an issue of fact.” [120] and [121] [127] …it was the reasons of the decision-maker at the time the adverse action was taken which was the focus of the inquiry.

22. Evidence displacing the onus [44] “Direct evidence of the reason why a decision-maker took adverse action, which may include positive evidence that the action was not taken for a prohibited reason, may be unreliable because of other contradictory evidence given by the decision-maker or because other objective facts are proven which contradict the decision-maker’s evidence. However, direct testimony from the decision-maker which is accepted as reliable is capable of discharging the burden upon an employer even though an employee may be an officer or member of an industrial association and engage in industrial activity.” [142] Of course, "mere declarations" by a witness as to his or her "mental state" may not be sufficient to discharge the appellant's burden of proof under s 361. External circumstances could put into question the reliability or credibility of those declarations. But Dr Harvey's evidence did not consist only of "mere declarations".

23. McCain – dissociating the impugned reason ‘If there is an association between the reason for the adverse action and the industrial activity, it will be necessary for an employer to prove that such an association was not an operative factor in the taking of the adverse action. Ordinarily, the manner in which an activity is carried out bears a close relationship to the activity itself.  Indeed, the manner of carrying out an activity may not be distinguishable from the activity itself.  Much depends upon the nature of the activity and the extent to which the manner in which it is carried out is properly to be regarded as falling within the scope of the activity itself.’AMWU v McCain Foods (Aust) Pty Ltd [2012] FCA 1126 at [35] and [36].

24. “Because” Why did the decision maker take the adverse action? Centrality of the evidence of the decision maker: Bowling Where the decision maker’s denial is accepted: Barclay The evidence may be rejected Decisions by corporations and committees

25. The final wash – up There is no contravention of the provisions: when the decision maker gives evidence, that is believed, for taking the adverse action; and the decision maker’s reason is dissociated from the protected status or activities.