Construction, Forestry, Maritime, Mining and Energy Union v Quirk

[2023] FCAFC 163

FEDERAL COURT OF AUSTRALIA

Construction, Forestry, Maritime, Mining and Energy Union v Quirk [2023] FCAFC 163

Appeal from:

Quirk v Construction, Forestry, Maritime, Mining and Energy Union [2021] FCA 1587

File number:

NSD 121 of 2022

Judgment of:

RARES ACJ, KATZMANN AND COLVIN JJ

Date of judgment:

11 October 2023

Catchwords:

INDUSTRIAL LAW – registered organisations – where trade union officials elected to office and employed under rules registered under the Fair Work (Registered Organisations) Act 2009 (Cth) – where officials charged with “gross misbehaviour” as an official under rule made pursuant to rule-making power in s 141(1)(c)(iii) of Act after criticising union in media including making allegations of serious misconduct and mismanagement – where charges determined in officials’ absence after refusal of adjournment for ill health – where charges found proved and officials removed from office for gross misbehaviour purportedly under rule – whether removal invalid because officials not afforded opportunity of being present at hearing within rule – where right to appeal not exercised, whether failure to afford opportunity to be heard cured by availability of an appeal under rules – whether conduct subject of charges could not amount to “gross misbehaviour” because s 142(1)(c) operated to invalidate oppressive, unreasonable or unjust rule or use of rule to authorise charge – where, following removal from office, union terminated employment of elected officials – whether officials wrongfully dismissed from employment

DAMAGES – employment contracts – whether union officials employed by union subsequently elected to four-year terms of office under rules requiring their employment by union remained on same contracts of employment after election or entered into new contracts – where employed officials invalidly removed from office and employment terminated before expiry of four-year term – whether employed officials entitled to damages equivalent to earnings for remainder of elected terms – whether damages should be reduced on account of unwillingness to perform work and pay union membership fees, failure to work for a significant period, overseas travel, receipt of social security payments and wages earned from other employment

INDUSTRIAL LAW – adverse action – where union officials criticised union in media – whether adverse action taken against union officials because they engaged in “industrial activity” within the meaning of s 347(b)(iv) of the Fair Work Act 2009 (Cth) by failing to comply with requirement or request not to speak to media without prior approval – whether s 347(b)(iv) applies to requests made to, or requirements imposed on, employees of an industrial association by that association – whether s 347(b)(iv) limited to requests or requirements relating to an employee’s freedom of association

INDUSTRIAL LAW – adverse action – whether adverse action taken against union officials because of their political opinions in contravention of s 351(1) of the Fair Work Act 2009 (Cth) – whether the exception contained in s 351(2)(a) requires that conduct be “not unlawful” by reason of positive authorisation in anti-discrimination law or merely requires that conduct not be proscribed – principles relevant in determining place in which adverse action occurs – whether adverse action took place in New South Wales or Victoria

INDUSTRIAL LAW – adverse action – whether union officials exercised a “workplace right” under s 341(1)(c)(ii) of the Fair Work Act 2009 (Cth) in making complaints about governance of union to media– whether ability to make a complaint in relation to employee’s employment required to be underpinned by law or be a right at law – whether criticisms of union to media are complaints made in relation to employee’s employment

INDUSTRIAL LAW – enterprise agreements – where enterprise agreement contained procedure to be followed when disciplinary action taken – where only one of two joint employers bound by enterprise agreement – where disciplinary action taken by other employer – whether necessary to determine whether enterprise agreement breached by employer bound by the enterprise agreement – whether contracts of employment contained an implied term incorporating by reference disciplinary procedure contained in enterprise agreement – whether disciplinary procedure engaged if employment terminated by employer not bound by enterprise agreement

PRACTICE AND PROCEDURE – where cross-appellants pleaded ground of cross-appeal not pleaded at trial – whether point raised in closing submissions at trial - where no explanation for failure to plead point at trial and little merit to the argument but no apparent prejudice to cross-respondents – whether expedient in interests of justice to grant leave to raise issue on cross-appeal

Legislation:

Conciliation and Arbitration Act 1904 (Cth) s 133(1)(f)

Fair Work (Registered Organisations) Act 2009 (Cth) ss 5, 27, 140, 141(1)(c)(iii), 142(1)(c), 145(1), 163-164B, 329

Fair Work Act 2009 (Cth) ss 340(1), 341(1)(c)(ii), (2), 342(1), 346, 347, 351, 361, 363, 570

Federal Court of Australia Act 1976 (Cth) ss 37M, 37N

Cases cited:

ACTEW Corporation Ltd v Pangallo [2002] FCAFC 325; (2002) 127 FCR 1

Alam v National Australia Bank Limited [2021] FCAFC 178; (2021) 288 FCR 301

Ashby v White (1703) 2 Ld Raym 938; 92 ER 126

Ashmore v Corporation of Lloyd's [1992] 2 All ER 486

Attorney-General v Sillem (1864) 10 HLC 704; 11 ER 1200

Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (The Bay Street Case) [2018] FCA 83; (2018) 260 FCR 564

Australian Workers’ Union v Bowen [No 2] [1948] HCA 35; (1948) 77 CLR 601

Automatic Fire Sprinklers Pty Ltd v Watson [1946] HCA 25; (1946) 72 CLR 435

AZC20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 26; (2023) 97 ALJR 674

Bagnall v National Tobacco Corporation of Australia Ltd (1934) 34 SR (NSW) 421

Banque Commerciale SA, En Liquidation v Akhil Holdings Ltd [1990] HCA 11; (1990) 169 CLR 279

Berry v CCL Secure Pty Ltd [2020] HCA 27; (2020) 271 CLR 151

Boensch v Pascoe [2019] HCA 49; (2019) 268 CLR 593

BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 52 ALJR 20; 45 LGRA 62; 180 CLR 266

Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833; (2001) 117 FCR 424

Byrne v Australian Airlines Ltd [1995] HCA 24; (1995) 185 CLR 410

Cameron v Hogan [1934] HCA 24; (1934) 51 CLR 358

Calvin v Carr [1980] AC 574; [1979] 1 NSWLR 1

Christie v Agricultural Societies Council of NSW Ltd [2015] NSWSC 1118

Cigarette & Gift Warehouse Pty Ltd v Whelan [2019] FCAFC 16; (2019) 268 FCR 46

Clark v Macourt [2013] HCA 56; (2013) 253 CLR 1

Cleworth v Barrow (1978) 20 ALR 359

Cohen v iSoft Group Pty Ltd [2013] FCAFC 49;(2013) 298 ALR 516

Commissioner of Taxation v Auctus Resources Pty Ltd [2021] FCAFC 39; (2021) 284 FCR 294

Commissioner of Taxation (Cth) v Sara Lee Household & Body Care (Australia) Pty Ltd [2000] HCA 35; (2000) 201 CLR 520

Commonwealth of Australia v Amann Aviation Pty Ltd [1991] HCA 54; (1991) 174 CLR 64

Concut Pty Ltd v Worrell [2000] HCA 64; (2000) 176 ALR 693

Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (The Bay Street Appeal) [2020] FCAFC 192; (2020) 282 FCR 1

Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2015] FCAFC 25; (2015) 230 FCR 298

Cook v Crawford [1981] FCA 16; (1981) 52 FLR 1

Coulton v Holcombe [1986] HCA 33; (1986) 162 CLR 1

Cummins South Pacific Pty Ltd v Keenan [2020] FCAFC 204; (2020) 281 FCR 421

Dickason v Edwards [1910] HCA 7; (1910) 10 CLR 243

Edgar & Walker v Meade [1916] HCA 70; (1916) 23 CLR 29

Fair Work Ombudsman v Foot & Thai Massage Pty Ltd (in liq) (No 4) [2021] FCA 1242

Federal Commissioner of Taxation v Sara Lee Household & Body Care (Australia) Pty Ltd [2000] HCA 35; (2000) 201 CLR 520

Forrest & Forrest Pty Ltd v Wilson [2017] HCA 30; (2017) 262 CLR 510

Fox v Percy [2003] HCA 22; (2003) 214 CLR 118

Giannarelli v Wraith [1988] HCA 52; (1988) 165 CLR 543

Gisda Cyf v Barratt [2010] UKSC 41; [2010] 4 All ER 851

H v Minister for Immigration & Multicultural Affairs [2000] FCA 1348; 63 ALD 43

Haines v Bendall [1991] HCA 15; (1991) 172 CLR 60

Hatfield v Health Insurance Commission (1987) 15 FCR 487

Hawkins v Clayton [1988] HCA 15; (1988) 164 CLR 539

Hawkins v Willis (1981) 38 ALR 319; 58 FLR 364

Holcombe v Coulton (1988) 17 NSWLR 71

Horrocks v Lowe [1975] AC 135

Horsell International Pty Ltd v Divetwo Pty Ltd [2013] NSWCA 368

John Alexander’s Clubs Pty Ltd v White City Tennis Club Ltd [2010] HCA 19; (2010) 241 CLR 1

Joyce v Christoffersen (1990) 26 FCR 261

Koc v Diamond (No 2) [2022] FCA 640

Kuru v State of New South Wales [2008] HCA 26; (2008) 236 CLR 1

Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520

Leary v National Union of Vehicle Builders [1971] Ch 34

Leggett v Hawkesbury Race Club Ltd (No 3) [2021] FCA 1658; 317 IR 1

Lee v Lee [2019] HCA 28; (2019) 266 CLR 129

Makin v Gallagher [1974] 2 NSWLR 559

McCloy v New South Wales [2015] HCA 34; (2015) 257 CLR 193

McClelland v Burning Palms Surf Lifesaving Club [2002] NSWSC 470

McPaul v Williams (1990) 34 IR 288

Mickovski v Financial Ombudsman Service Ltd [2012] VSCA 185; (2012) 36 VR 456

Minister for Immigration and Border Protection v WZARH [2015] HCA 40; (2015) 256 CLR 326

Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332

Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597

Minister for Immigration and Multicultural Affairs v Singh [2000] FCA 845; (2000) 98 FCR 469

Minister For Local Government v South Sydney City Council [2002] NSWCA 288; (2002) 55 NSWLR 381

Munce v Vinidex Tubemakers Pty Ltd [1974] 2 NSWLR 235

Mylan v Health Services Union NSW [2013] FCA 190

MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 273 CLR 506

Nathanson v Minister for Home Affairs [2022] HCA 26; (2022) 96 ALJR 737; 403 ALR 398

O’Connor v Setka [2020] FCAFC 195

Owners of the Ship 'Shin Kobe Maru' v Empire Shipping Company Inc [1994] HCA 54; (1994) 181 CLR 404

PIA Mortgage Services Pty Ltd v King [2020] FCAFC 15; (2020) 274 FCR 225

Plaintiff M61/2010E v Commonwealth of Australia [2010] HCA 41; (2010) 243 CLR 319

Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355

Qantas Airways Ltd v Transport Workers Union of Australia [2023] HCA 27

Quinn v Jack Chia (Australia) Ltd [1992] 1 VR 567

R v Darling Island Stevedoring & Lighterage Co Ltd; Ex parte Halliday [1938] HCA 44; (1938) 60 CLR 601

R v Khazaal [2012] HCA 26; (2012) 246 CLR 601

Re Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] HCA 22; (2001) 206 CLR 57

Ridge v Baldwin [1964] AC 40

Roberts v Bass [2002] HCA 57; (2002) 212 CLR 1

Robinson v Harman (1848) 1 Exch 850 at 855; 154 ER 363 at 365; [1843-60] All ER Rep 383

Robinson Helicopter Co Inc v McDermott (2016) 90 ALJR 679; 331 ALR 550

Rothenberger Australia Pty Ltd v Poulsen (2003) 58 NSWLR 288

Royal Botanic Gardens and Domain Trust v South Sydney City Council [2002] HCA 5; (2002) 240 CLR 45

Rumble v The Partnerhsip trading as HWL Ebsworth Lawyers [2019] FCA 1409; 289 IR 72

Sayed v Construction, Forestry, Mining and Energy Union [2015] FCA 27; 327 ALR 460; 149 ALD 88

SBP Employment Solutions Pty Ltd v Smith [2021] FCA 601

Secretary, Department of Family and Community Services v Hayward (a pseudonym) [2018] NSWCA 209; (2018) 98 NSWLR 599

Setka v Carroll [2019] VSC 571; (2019) 58 VR 657

Shea v TRUenergy Services Pty Ltd (No 6) [2014] FCA 271; (2014) 314 ALR 346

Soliman v University of Technology, Sydney (No 2) [2009] FCAFC 173; (2009) 191 IR 277

Soliman v University of Technology, Sydney [2008] FCA 1512; (2008) 176 IR 183

Tabcorp Holdings Ltd v Bowen Investments Pty Ltd [2009] HCA 8; (2009) 236 CLR 272

Tasman Capital Pty Ltd v Sinclair (2008) 75 NSWLR 1

Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52; (2004) 219 CLR 165

Twist v Randwick Municipal Council [1976] HCA 58; (1976) 136 CLR 106

University of Wollongong v Metwally (No 2) [1985] HCA 28; (1985) 60 ALR 68; 59 ALJR 481

Victorian Stevedoring and General Contracting Co Pty Ltd v Dignan [1931] HCA 34; (1931) 46 CLR 73

Voth v Manildra Flour Mills Pty Ltd [1990] HCA 55; (1990) 171 CLR 538

VUAX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 158; (2004) 238 FCR 588

Walker v Citigroup Global Markets Australia Pty Limited (formerly known as Salomon Smith Barney Australia Securities Pty Limited) [2006] FCAFC 101

Walsh v Greater Metropolitan Cemeteries Trust (No 2) [2014] FCA 456; (2014) 243 IR 468

Water Board v Moustakas [1988] HCA 12; (1988) 180 CLR 491

Wenham v Ella [1972] HCA 43; (1972) 127 CLR 454

Whelan v Cigarette & Gift Warehouse Pty Ltd [2017] FCA 1534; (2017) 275 IR 285

Wiseman v Professional Radio and Electronics Institute of Australasia [1978] FCA 31; (1978) 20 ALR 545

Zheng v Cai [2009] HCA 52; (2009) 239 CLR 446

Khan-Freund O, Labour and the Law (Stevens, 1972)

Neil I and Chin D, The Modern Contract of Employment (2nd ed, LawBook Co, 2017)

Sappideen C, O’Grady P and Munton J, Macken’s Law of Employment (9th ed, LawBook Co, 2022)

Tracey RRS, “Section 141 of the Conciliation and Arbitration Act and Natural Justice” (1976) 18(1) The Journal of Industrial Relations 58

Division:

Fair Work Division

Registry:

New South Wales

National Practice Area:

Employment and Industrial Relations

Number of paragraphs:

551

Date of last submissions:

3 October 2023

Date of hearing:

18-19 August 2022

Counsel for the Appellant/Cross-Respondents:

Mr M Gibian SC with Mr R Carter (18 August 2022)
Mr M Gibian SC with Mr P Boncardo (19 August 2022)

Solicitor for the Appellant/Cross-Respondents:

Taylor & Scott Lawyers

Counsel for the Respondents/Cross-Appellants:

Mr M Seck with Mr M Whitbread

Solicitor for the Respondents/Cross-Appellants:

McArdle Legal

ORDERS

NSD 121 of 2022

BETWEEN:

CONSTRUCTION, FORESTRY, MARITIME, MINING AND ENERGY UNION

Appellant

AND:

ANDREW QUIRK

First Respondent

BRIAN MILLER

Second Respondent

AND BETWEEN:

ANDREW QUIRK

First Cross-Appellant

BRIAN MILLER

Second Cross-Appellant

AND:

CONSTRUCTION, FORESTRY, MARITIME, MINING AND ENERGY UNION

First Cross-Respondent

CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION (NEW SOUTH WALES BRANCH)
Second Cross-Respondent

ORDER MADE BY:	RARES ACJ, KATZMANN AND COLVIN JJ
DATE OF ORDER:	11 OCTOBER 2023

THE COURT ORDERS THAT:

1.The appeal be allowed in part.

2.The cross-appeal be dismissed.

3.By 18 October 2023, the parties file and serve an agreed recalculation of damages and interest that should be ordered for each appellant in the respective proceeding below consistent with the concessions noted in the reasons of Katzmann J at [243] or, in the event of disagreement, the parties’ asserted calculations and submissions limited to 1 page in support of their respective contentions.

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

REASONS FOR JUDGMENT

RARES ACJ:

INTRODUCTION

1. I have had the considerable benefit of reading the separate reasons of Katzmann J and Colvin J and agree with them that the appeal must be allowed in part and cross-appeal must be dismissed so as to make the agreed variation of the damages that Katzmann J identifies at [243].

2. In approaching the unfocused plethora of issues that the parties raised both before the primary judge, whose cogent and clear reasons are, in my opinion, substantially correct, and the Full Court, the parties often ignored their obligation to advance the overarching purpose of the Court’s civil practice and procedure provisions, namely, to conduct the proceeding below and the appeal to facilitate the just resolution of this dispute in accordance with law as quickly, inexpensively and efficiently as possible embodied in ss 37M and 37N of the Federal Court of Australia Act 1976 (Cth) (Federal Court Act).  I agree with Colvin J’s observations at [441]–‍[442] about the duties of counsel in the presentation of a party’s case at trial and on appeal. 

3. In these reasons, I have adopted the abbreviations and issues that Katzmann J has used in her reasons.

   THE ESSENTIAL FACTUAL CONTEXT

4. In essence, the primary judge found the following:

   (a)in removing each of Mr Quirk and Mr Miller from his elected office as an organiser, and thus terminating his employment, the Federal Union acted in breach of rule 11(a) because it denied him natural justice and, accordingly, each officer was wrongfully dismissed;

   (b)the substantial and operative reason for the decision of the Divisional Executive that found each of Mr Quirk and Mr Miller guilty of gross misbehaviour within the meaning of rule 11(a) and the establishment of the charges against each man under it was because the Divisional Executive perceived that each of Mr Quirk and Mr Miller had been disloyal by publicly denigrating the Union and had spoken about the Union to the media without permission;

   (c)that substantial and operative reason could not support a finding of gross misbehaviour under rule 11(a) because ss 141(1)(c)(iii) and 142(1)(c) of the Fair Work (Registered Organisations) Act 2009 (Cth) (FWRO Act) could not authorise a rule, or construction of a rule, that prohibited a person in the position of each of Mr Quirk and Mr Miller from expressing dissent from the way in which a registered organisation (such as the Union) was being managed and, by doing so, thereby engage in gross misbehaviour within the meaning of rule 11(a). That was because, if rule 11(a) so operated, it would impose conditions, obligations or restrictions that were oppressive, unreasonable or unjust, contrary to s 142(1)(c);

   (d)had the Union not acted unlawfully, both Mr Quirk and Mr Miller would have remained employed by the Federal Union up to the end of his elected term on 1 January 2017 in accordance with rule 38(b) but that, thereafter, neither man would have been re-elected as an organiser or (re)employed by the Federal or State Union under an ordinary contract of employment; and

   (e)on the evidence, each of Mr Quirk and Mr Miller was entitled to damages for wrongful dismissal of $189,428.59.

   PRINCIPLES GOVERNING APPELLATE REVIEW

5. An appeal by way of rehearing under provisions such as the Federal Court Act, ordinarily, must proceed in accordance with the following principles:

   (a)the substantial issues between the parties are settled at the trial and the powers of the appellate court to amend the pleadings in the court below must be exercised with this principle in mind: Coulton v Holcombe (1986) 162 CLR 1 at 7 per Gibbs CJ, Wilson, Brennan and Dawson JJ;

   (b)the appeal is against one or more orders made by the court below and the appellant must show that that court erred in making the relevant order or orders: AZC20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 26; (2023) 97 ALJR 674 at [34] per Kiefel CJ, Gordon and Steward JJ, with whom Edelman J agreed at [61], citing, among others, Lee v Lee (2019) 266 CLR 129 at 148–149 [55] per Bell, Gageler, Nettle and Edelman JJ and Victorian Stevedoring and General Contracting Co Pty Ltd v Dignan (1931) 46 CLR 73 at 109 per Dixon J; see too Attorney-General v Sillem (1864) 10 HLC 704 at 724; 11 ER 1200 at 1209 per Lord Westbury LC; and

   (c)a trial judge’s factual findings that are likely to have been affected by impressions about the credibility and reliability of witnesses whom he or she has seen and heard will only be set aside if “glaringly improbable” or “contrary to compelling inferences”: Lee 266 CLR at 148–149 [55] citing Fox v Percy (2003) 214 CLR 118 at 128 [29] per Gleeson CJ, Gummow and Kirby JJ and Robinson Helicopter Co Inc v McDermott (2016) 90 ALJR 679 at 687 [43]; 331 ALR 550 at 558–559 per French CJ, Bell, Keane, Nettle and Gordon JJ.

   CONSIDERATION

   The rules case

   Issues 3 and 4

1. As each of Katzmann J and Colvin J have found, the primary judge was correct in holding that the Union did not comply with rule 11(a)(ii)(c) because it did not afford either Mr Quirk or Mr Miller with the opportunity to be present at a hearing of the charges against him and of being heard in his own defence, including an opportunity to cross-examine as well as to give and call evidence.

   Issue 5

2. The Union’s reliance on the availability under the rules of an appeal from the Divisional Executive’s decision to remove Mr Quirk and Mr Miller from their offices, as a cure for any denial of procedural fairness in the Executive arriving at that decision, was misconceived.

3. First, the mere existence of an unexercised right to appeal under the rules cannot cure a decision that is otherwise invalid.  Of course, the existence of the right to an internal appeal under the rules may provide a matter that a court can take into account in considering whether to grant relief against an otherwise invalid decision.  However, the rules did not confer any different status on a purported decision of the Divisional Executive that was invalid, for failure to comply with them or the principles of natural justice or procedural fairness, depending on whether or not the person adversely affected chose to exercise natural justice or a right of appeal.  As Mason J said in Twist v Randwick Municipal Council (1976) 136 CLR 106 at 116:

   the earlier cases should not be regarded as deciding that the presence of an appeal to another administrative body is an absolute answer to a departure from natural justice or the standard of fairness. The existence of such an appeal does not demonstrate in itself that the inferior tribunal is at liberty to deny a hearing. But if the right of appeal is exercised and the appellate authority acts fairly and does not depart from natural justice the appeal may then be said to have “cured” a defect in natural justice or fairness which occurred at first instance.

   (emphasis added) 

4. Secondly, the relevant principle is that where an appeal lies from the initial invalid decision and the person affected exercises the right to appeal, that, ordinarily, is taken to be an act that affirms the validity of the decision and seeks to have it overturned through the appellate process: Twist 136 CLR at 115–116; Ridge v Baldwin [1964] AC 40 at 79 per Lord Reid; Calvin v Carr [1980] AC 574 at 595B–C; [1979] 1 NSWLR 1 at 13B–C per Lord Wilberforce, giving the opinion of the Judicial Committee (Viscount Dilhorne, Lords Hailsham of St Marylebone, Keith of Kinkel, Scarman and himself).

5. In Australian Workers’ Union v Bowen [No 2] (1948) 77 CLR 601 at 631–632, Dixon J, with whom Starke J and, on this issue, Rich J agreed (at 619), said of the consequences of appealing or not under such a rule:

   from these decisions six of them appealed to the convention. By so appealing they treated the expulsion, not as regular, but as having an operation under the rules and as proceedings to be reviewed, and, if the convention thought fit, corrected by the convention. The convention had complete authority over the whole question of expulsion, and it was for it to decide whether the findings and the dismissals from membership should be set aside, varied or confirmed. The convention confirmed them.

   (emphasis added)

6. Because the convention of the union, as the appellate body, did not deal with one of the members adversely affected, Mr Renwick, Dixon J held (at 632) that his expulsion by the council (ie. the initial internal union decision-‍maker) was invalid and was not cured by the unexercised right to appeal.

7. As Lord Wilberforce held in Calvin [1980] AC at 592–593; [1979] 1 NSWLR at 11, trade union cases fall into a category of case in which the right to appeal to another organ of the union should not foreclose the ability of a member or officer who has been denied a fair trial from going directly to a court for relief. Their Lordships said that, in trade union cases, “movement solidarity and dislike of the rebel, or renegade, may make it difficult for appeals to be conducted in an atmosphere of detached impartiality and so make a fair trial at the first – probably branch – level an essential condition of justice”. They approved the following statement of principle by Megarry J in Leary v National Union of Vehicle Builders [1971] Ch 34 at 49, at least in its application to a trade union case:

   If the rules and the law combine to give the member the right to a fair trial and the right of appeal, why should he be told that he ought to be satisfied with an unjust trial and a fair appeal? … As a general rule … I hold that a failure of natural justice in the trial body cannot be cured by a sufficiency of natural justice in an appellate body.

8. The Privy Council concluded ([1980] AC at 596; [1979] 1 NSWLR at 14), after examining and applying Bowen 77 CLR 601, that there is no automatic rule that the availability of an internal appeal will cure a denial of natural justice by the initial decision-making body in a trade union case or in another domestic or statutory tribunal. Here, as the primary judge observed (at [329]):

   In my view, it is clear that the Divisional Executive did not remove Mr Quirk and Mr Miller because of their politics. It removed them because of the disloyalty perceived in Mr Quirk and Mr Miller’s highly public denigration of the Federal Union and their decision to speak without permission to the media. My overall and strong impression of the evidence of the members of the Divisional Executive is that the Federal Union is almost tribal in nature and that within its ranks loyalty is the cardinal value above almost everything else. Mr Quirk and Mr Miller’s sin was to transgress that cardinal value in the national media during the moment of the Federal Union’s greatest peril. I do not think that their politics entered into the equation.

   (emphasis added)

9. That finding reinforces the appositeness of Lord Wilberforce’s reasoning that the existence of a right of appeal is not a cure all for a breach of natural justice in a trade union case (Calvin [1980] AC at 592–593; [1979] 1 NSWLR at 11), although, if exercised, as in Bowen 77 CLR 601, it may do so. That did not occur here. Mr Quirk and Mr Miller, no doubt mindful of the tribal nature of the Federal Union, exercised their rights under ss 163–164B of the FWRO Act to seek an impartial hearing in the Court rather than take the chance of getting one on an internal appeal.

10. For these reasons, Mr Quirk and Mr Miller were entitled to bring their proceedings below without having to pursue an appeal under the Union’s rules.

    Issues 6 and 9

11. Rule 49(a) expressly provided that a member of the Union who had been elected to any full-‍time position (such as an organiser) “shall be employed full time in the service of the Divisional Branch” and be paid a weekly wage as determined by that branch but not less than a specified benchmark.  The fact that, up to the commencement of their elected four-year term of office on 2 January 2013, each of Mr Quirk and Mr Miller was a full-time employed delegate did not mean that they remained employed on the earlier contract of employment after they assumed their elected offices.

12. In Concut Pty Ltd v Worrell (2000) 176 ALR 693 at 698–699 [18]–[19], Gleeson CJ, Gaudron and Gummow JJ analysed how to ascertain the intention of parties to an employment relationship when new terms, such as a promotion, change of position or increase in wages or salary, are introduced. As with other issues of contractual formation, their Honours held that whether such a change amounts to a variation of the existing contract of employment or its replacement is ascertained objectively in all of the circumstances. In substance, the question is whether, appreciating its commercial (or employment) purpose, a reasonable person in the position of the parties, aware of its genesis, background, context and the market or relationship in which the parties are operating, would have understood that the parties intended to make a contract that either varied, in one or more particular respects, the existing agreement or supplemented it entirely with a new agreement that would govern their relationship for the future: Concut 176 ALR at 698–699 [19]; Federal Commissioner of Taxation v Sara Lee Household & Body Care (Australia) Pty Ltd (2000) 201 CLR 520 at 533 [22] per Gleeson CJ, Gaudron, McHugh and Hayne JJ; Royal Botanic Gardens and Domain Trust v South Sydney City Council (2002) 240 CLR 45 at 52–53 [10] per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ; Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165 at 178–180 [38]–[41] per Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ; Cohen v iSoft Group Pty Ltd (2013) 298 ALR 516 at 526–527 [35]–[38] per Rares, Cowdroy and Kerr JJ.

13. Here, by standing for election, each of Mr Quirk and Mr Miller manifested, objectively, that, if elected, he wanted to change his relationship to the Union as his employer. That is because rules 38(b) and 49(a) created the minimum terms of employment of an elected office in the Union. Rule 38(b) provided (consistently with the requirement in s 145(1) of the FWRO Act) that the term of elected office, including for an organiser, was for a continuous period of four years commencing on 2 January in the year following the election and rule 49(a) provided the minimum remuneration for such an elected officeholder.

14. The source of the Union’s obligation to employ each of Mr Quirk and Mr Miller changed on 2 January 2013 from the earlier voluntary assumption of contractual relations to the new stipulation by the members voting them into the office of an organiser for a four-year term subject to any further election result.  Objectively, the rules were intended to set out how a person elected to a full-time office would be employed, his or her term of office, minimum remuneration, duties and how removal from office could occur.  Those rules had contractual force as between members and supplanted any earlier contract of employment.  Both men went from their previous contract of employment, with an indeterminate duration, to an elected office with a fixed four-year term that did not provide (contrary to the unsupported assertion in Mr Quirk’s and Mr Miller’s argument) for their previous employment to revive or continue at the expiration of the four-year term under rule 38(b) as if nothing had happened.

15. I agree with Colvin J, in his resolution of issues 6 and 9, that the Union failed to prove that, if, instead of proceeding as it did on 17 April 2015, and immediately applying its decisions to remove each of Mr Quirk and Mr Miller from office, it had afforded each of them natural justice, nonetheless, it would have terminated their employment lawfully before 1 January 2017 when it expired at the conclusion of their four-year term of office in accordance with rule 38(b) and s 145(1) of the FWRO Act.

    Issues 1 and 2

16. As a result of the last conclusion, it is not necessary to decide whether the allegations in the charges against each of Mr Quirk and Mr Miller could have constituted gross misbehaviour under rule 11(a) or whether, properly characterised, as the primary judge found, they constituted, impermissibly by force of s 142(1)(c) of the FWRO Act, charges of dissent.

17. If I had to decide that issue, like Katzmann J, I would have upheld his Honour’s conclusion and reasoning that the Union could not impose a lawful requirement, in its new code of conduct or otherwise, that prohibited an elected officer from communicating his or her views to the media or anyone else.

18. Each of the charges against Mr Quirk and Mr Miller, that Katzmann J has set out in [59] and [60] of her reasons, alleged that each official had made statements to the media, without its authorisation, that were false and damaging to the Union.  Notably, none of the allegations in the charges stated that either official knew that, when he published to the media, what he said was false.  While the charges purported to set out matters rebutting the accuracy of each impugned statement, they did not particularise that either Mr Quirk or Mr Miller knew, first, of any of those matters when he spoke to the media or, secondly, that if he did know of any of those asserted facts, that it also had the consequence that what he said was not true.

19. The Union submitted that an official who made a knowingly false statement to the media that was damaging to it could be found to have engaged in gross misbehaviour under rule 11(a). But, even if that were so (and it is not necessary to decide), the charges alleged only that the statements that Mr Quirk and Mr Miller had made were wrong. The charges did not go so far as to make the more serious allegation that each official knew that what he said to the media was false.

20. Unlike rule 11(a) in this case, in Bowen 77 CLR 601, the union’s relevant rules empowered its executive council to expel a member who, in its opinion, was guilty of misconduct.  Latham CJ observed (at 606) that, because the rule left the formation of the opinion to the executive council, the only question for the court was whether it had formed that opinion in good faith.  But, the Chief Justice held that, if the rule had not been so conditioned, it was arguable that the issue could be examined independently by the court (at 606, 609).  Rich J (at 618) agreed and Williams J applied the same process of reasoning (at 634).  Starke J (at 619) agreed with Dixon J, who also emphasised the importance that the relevant rule required the executive council to form its opinion in good faith as to whether the conduct charged amounted to misconduct (at 629).

21. Another point of distinction is that, in Bowen 77 CLR 601, the High Court was not required to deal with the application of a statutory constraint on the rule-making power of the union such as that now found in s 142(1)(c) of the FWRO Act.  Unlike in Bowen 77 CLR 601, the rule-‍making power in s 141(1)(c)(iii) of the FWRO Act and rule 11(a) itself do not require the Divisional Executive to form an opinion (as distinct from finding as a fact) that what was charged constituted gross misbehaviour. Rather, the statutory power, and rule 11(a), require that, in order to be authorised to remove an elected officer, the Divisional Executive has to find an objective basis, and do so honestly (or in good faith), that what Mr Quirk and Mr Miller was charged with actually occurred as alleged and that it constituted gross misbehaviour.

22. It is necessary that conduct the subject of a charge (or allegation) is capable of being characterised as gross misbehaviour within the meaning of s 141(1)(c)(iii), or a rule (such as rule 11(a)) made pursuant to that power, before a registered organisation can remove a person elected to an office. That is because Ch 5 of the FWRO Act, in which ss 141 and 142 are found in Pt 2, also includes, in Pt 3, ss 163–164B. Part 3 of Ch 5 confers jurisdiction on this Court, on the application of a member, first, to declare that the whole or part of a rule contravenes s 142 in a particular respect (s 163(2)), secondly, to make an order giving directions for the performance or observance of any of the organisation’s rules by any person (s 164(1)) and, thirdly, to make an order directing a person to do specified things, so far as reasonably practicable, that would place the organisation in the position it would have been had the breach of the rule not occurred (even if the applicant is not a member at the time of the order) (s 164A(4)).

23. The concept of ‘gross misbehaviour’ and ‘gross neglect of duty’ that s 141(1)(c)(iii) of the FWRO Act enables a registered organisation to utilise in a rule, such as rule 11(a) of the Union’s rules, as a ground for removal of an elected official from office cannot authorise a rule, or charge proffered under a rule, that, first, prohibits the official speaking or communicating with others, including the media, without authorisation or, secondly, if he or she does speak or communicate with the media or others, he or she must be accurate and not say anything false to the person’s knowledge about, or damaging to, the Union. Such a rule or charge would be oppressive, unreasonable or unjust and so beyond the power conferred under ss 141(1)(c)(iii) and 142(1)(c) in accordance with the decisions in Wiseman v Professional Radio and Electronics Institute of Australasia (1978) 20 ALR 545 at 555–556 per Evatt and Northrop JJ and McPaul v Williams (1990) 34 IR 288 at 294 per Gray J (which Katzmann J has quoted in her reasons at [171] and [173]). It would also be antithetic to the Parliament’s intention in enacting the FWRO Act, as expressed in s 5. In particular, the Parliament stated its intention in s 5(3)(a)–(d) that the FWRO Act would set standards that Katzmann J has set out at [177] of her reasons which, among other matters, as s 5(3)(d) states, provide for the democratic functioning and control of registered organisations.

24. The primary judge correctly characterised the conduct of Mr Quirk and Mr Miller complained of in the charges as dissent over the way in which the Federal Union was being conducted. His Honour found that, to the extent that each of the charges, the new code of conduct and rule 11(a) purported to proscribe democratic dissent over the way in which the Federal Union was being run, it was oppressive, unreasonable or unjust because, having regard to the intentions of the Parliament stated in s 5 of the FWRO Act and the objects of both that Act and the Fair Work Act 2009 (Cth) (Fair Work Act), it would impose on members of the Union conditions, obligations or restrictions in contravention of the general requirements of rules mandated by s 142(1)(c) of the FWRO Act.

25. In forming and expressing views or opinions, and communicating information, members of our society do not necessarily do so with the precision or accuracy of a mathematical proof or a philosopher or logician.  Moreover, when a member of a body perceives that its affairs are being conducted inappropriately, he or she may need to speak out, without adhering to rules of debate set by those whose actions he or she is calling into question.  Such a person, also, may not have full information, may leap to a conclusion that, on cooler reflection, others may not express, may misinterpret what occurred, may be more or less correct but include some erroneous matter in the whole of what is said or may even be biased against whom or what he or she is criticising.  And, it is not uncommon in political debate focused on questioning the exercise of power by those in or seeking control of a body, such as a registered organisation like a union, as in other areas of political discourse, to employ polemical propositions.  Those subject to polemical attacks are often prone to finding the language offensive, sometimes disloyal to the cause concerned, and the context inaccurate, if not downright untrue.  Not infrequently, each side gives as good as it gets. 

26. An analogous situation can arise in the law of defamation, particularly in the consideration of a defence of qualified privilege.  That can provide a defence to the publication of false matter about the plaintiff, including, for example, for a defendant who makes or repeats a statement that is false.

27. In Horrocks v Lowe [1975] AC 135 at 150B–E, Lord Diplock explained (with the agreement of Lords Wilberforce, Hodson and Kilbrandon) the rationale for the common law defence of qualified privilege to an action in defamation, albeit that this was in another context, but which is nonetheless relevantly apposite here. In Roberts v Bass (2002) 212 CLR 1, each of Gleeson CJ (at 14 [15] and see too at 17–18 [28] and 18 [31]–[32]) and Gaudron, McHugh and Gummow JJ (with whom Kirby J (at 66–67 [185]) agreed on the issue of malice in respect of the implied constitutional freedom of communication on government and political matter at common law) cited with approval the following passage from Lord Diplock’s speech (and see too at 35 [86], 38 [96] and 41 [103]):

    If [a person] publishes untrue defamatory matter recklessly, without considering or caring whether it be true or not, he is in this, as in other branches of the law, treated as if he knew it to be false. But indifference to the truth of what he publishes is not to be equated with carelessness, impulsiveness or irrationality in arriving at a positive belief that it is true. The freedom of speech protected by the law of qualified privilege may be availed of by all sorts and conditions of men. In affording to them immunity from suit if they have acted in good faith in compliance with a legal or moral duty or in protection of a legitimate interest the law must take them as it finds them. In ordinary life it is rare indeed for people to form their beliefs by a process of logical deduction from facts ascertained by a rigorous search for all available evidence and a judicious assessment of its probative value. In greater or in less degree according to their temperaments, their training, their intelligence, they are swayed by prejudice, rely on intuition instead of reasoning, leap to conclusions on inadequate evidence and fail to recognise the cogency of material which might
    
    

    cast doubt on the validity of the conclusions they reach. But despite the imperfection of the mental process by which the belief is arrived at it may still be “honest,” that is, a positive belief that the conclusions they have reached are true. The law demands no more.

    (emphasis added)

1. As Gaudron, McHugh and Gummow JJ recognised in Roberts 212 CLR at 43 [108] and 46 [115], a person’s carelessness or a failure to check material to find an independent basis for one’s belief or impulsiveness, jumping to a conclusion from inadequate material or illogical reasoning is not a proper basis to infer that the person knew that what he or she said was untrue or that he or she was recklessly indifferent as to whether it was true or not.

2. For these reasons and those given by both the primary judge and Katzmann J, the charges against each of Mr Quirk and Mr Miller could not be proffered under rule 11(a) because they alleged no more than dissent and, even if proved, could not constitute gross misbehaviour within the rule-making power conferred in ss 141(1)(c)(iii) and 142(1)(c) of the FWRO Act. 

   Issue 2A

3. In obiter dicta, the primary judge went onto consider whether it was open to the Divisional Executive to find that any of the particulars of each charge against Mr Quirk and Mr Miller was established, applying the alternative standards of review that his Honour drew from Bowen 77 CLR 601 and Minister for Immigration and Citizenship v Li (2013) 249 CLR 332.

4. It is not necessary to deal with that issue because his Honour was correct to find that the charges impermissibly alleged dissent and, in my opinion, for the reasons above, the charges did not allege that either official had said anything that he knew was false or about which he was recklessly indifferent as to its truth or falsity.

   Issues 7, 8 and 10

5. I agree with Colvin J’s reasons (at [475]–[481]) that these issues have no merit.  I agree with Katzmann J at [243] that the damages that the primary judge awarded need to be reduced by relatively small amounts on the basis of the concessions that each of Mr Quirk and Mr Miller made during the appeal.

   The adverse action case

   Issues 13–18 and 22

6. I agree with Katzmann J’s reasons in respect of issues 13–17 and 22.  I agree with Colvin J’s reasons in respect of issue 18.

   Issues 11, 19 and 20

7. Each of Katzmann J and Colvin J has discussed the less than uniform approach which Full Courts and single judges in this Court adopted in the construction of s 341(1)(c)(ii) of the Fair Work Act prior to the decision in Qantas Airways Ltd v Transport Workers Union of Australia [2023] HCA 27, which was delivered after we reserved judgment in the appeal. We invited the parties to make submissions on the possible impact of this decision.

8. Mr Quirk, Mr Miller and the Union agreed that the ratio in Qantas [2023] HCA 27 was not strictly relevant because it concerned the construction of s 340(1)(b) of the Fair Work Act.  However, the Union argued that in Qantas [2023] HCA 27 at [26], Kiefel CJ, Gageler, Gleeson and Jagot JJ construed the expression “is able to” in s 341(1)(b) and (c) in a general way without considering, or needing to consider, whether there had to be a source for the ability to make a complaint or inquiry or what its nature could be. The Union contended that, in any event, the primary judge was correct to find that, first, Mr Quirk’s and Mr Miller’s statements to the media were not “complaints” within the meaning of s 341(1)(c)(ii) and, secondly, the Divisional Executive had not acted to remove them from office because they had made complaints to the media.

9. As Katzmann J has explained at [321], neither Mr Quirk nor Mr Miller pleaded at trial any relevant workplace right or entitlement.  Her Honour quoted the primary judge’s distillation of the three bases on which they put their argument that the Union had taken adverse action because of their exercise of a workplace right.  The primary judge rejected each of those bases because he held, following the reasoning of Rangiah and Charlesworth JJ in PIA Mortgage Services Pty Ltd v King (2020) 274 FCR 225 at 229–230 [11]–[13], that Mr Quirk and Mr Miller had to “identify an entitlement or right conferred upon them by something to take the steps that they did” (emphasis in original). 

10. Despite counsel for Mr Quirk and Mr Miller also being counsel in the Full Court in Alam v National Australia Bank Ltd (2021) 288 FCR 301, and that decision being published after the primary judge had reserved his decision, neither side drew Alam 288 FCR 301 to his Honour’s attention. That failure was unsatisfactory given the different approach to the construction of s 341(1)(c)(ii) that the later Full Court decided in Alam 288 FCR 301. Although in Qantas [2023] HCA 27, the reasons of Kiefel CJ, Gageler, Gleeson and Jagot JJ (at [36], [41]), as well as those of Steward J (at [116]), referred to Alam 288 FCR 301, PIA 274 FCR 225 and other decisions in this Court concerning the construction of s 341(1)(c)(ii), their Honours did not, or need to, resolve the differences between them.

11. Rather, Kiefel CJ, Gageler, Gleeson and Jagot JJ held that the role of s 341 in the Fair Work Act is not to define but to identify, as a matter of substance, that a person has a workplace right in the circumstances that the provision specifies: Qantas [2023] HCA 27 at [32], [47] (and see too at [79]‍–[81] per Gordon and Edelman JJ). The plurality held (at [36]) that the words “is able to” in s 341(1)(b) and (c) are not words of limitation but rather operate when “circumstances have come into existence in which the person has a present capacity to exercise a relevant power or freedom” that each of s 341(1)(b) (when read with s 341(2)) and s 341(1)(c) specifically identify. Thus, a workplace right to make a complaint or inquiry under s 341(1)(c) can, and ordinarily will, come into existence only when circumstances have arisen in the course of the employment relationship that then gives the person the present capacity to exercise the power or freedom to make the relevant complaint or inquiry: Qantas [2023] HCA 27 at [36]–‍[37], [47].

12. Steward J construed (at [116]) s 341(1)(c) to mean that the ability to make a complaint had to be underpinned by some present, actually held, entitlement or right as held in Shea v TRUenergy Services Pty Ltd [No 6] (2014) 314 ALR 346 at 440 [625] per Dodds-Streeton J, as applied in Cigarette & Gift Warehouse Pty Ltd v Whelan (2019) 268 FCR 46 at 55–56 [28] per Greenwood, Logan and Derrington JJ. However, contrary to the reasoning of the other justices, Steward J went on to hold that s 341 is a definitional section: Qantas [2023] HCA 27 at [121].

13. Here, the primary judge identified Mr Quirk’s and Mr Miller’s case under s 341(1)(c)(ii) of the Fair Work Act as being that they claimed to have exercised a workplace right to complain (or whistleblow) to the media “in relation to [their] employment”.  They identified to his Honour, and repeated on appeal, three asserted bases for a workplace right to make such a complaint, namely, what they said were, first, breaches of the Federal Union’s conflicts of interests policy, its personal gifts and benefits policy, its bullying procedures and cl 34 of its enterprise agreements, secondly, allegations of breaches of the criminal law relating to corruption and, thirdly, exercises of their right to represent and communicate with the Union’s members pursuant to their election to office.  They asserted that the workplace right to make a complaint or inquiry in relation to their employment did not need to be exercised by directing the complaint or inquiry to anyone who could do something about it.

14. Ordinarily, the principle which Holt LCJ famously applied (in Ashby v White (1703) 2 Ld Raym 938 at 953; 92 ER 126 at 136) encapsulates the need for a connection between a legal entitlement (such as a workplace right) and the consequence of its assertion or pursuit. The Lord Chief Justice said:

    If the plaintiff has a right, he must of necessity have a means to vindicate and maintain it, and a remedy if he is injured in the exercise or enjoyment of it; and indeed it is a vain thing to imagine a right without a remedy; for want of right and want of remedy are reciprocal.

    (footnotes omitted)

15. The right to freedom of speech or expression is not a freestanding workplace right. That right is one enjoyed and exercisable by every member of our society subject to only such constraints as are imposed by law consistently with the implied constitutional freedom of communication on government and political matter (which is a restriction on legislative power). Mr Quirk and Mr Miller did not plead or otherwise explain at the trial or on appeal how they alleged that this well-known human right somehow became, morphed into or acquired a new character as a workplace right within the meaning of s 341(1)(c)(ii) of the Fair Work Act that each man could enforce against his employer, the Union.  Their argument as put, that they had a workplace right to make a complaint in relation to their employment to the media, lacked any coherent explanation.

16. However, Mr Quirk and Mr Miller did not plead or argue that the Union took adverse action against them under s 340(1)(a) and item 7(b) in the table to s 342(1) of the Fair Work Act by finding that they were guilty of gross misbehaviour under rule 11(a) and, on that basis, terminating their employment because they had exercised their workplace right as elected officers to make a complaint that was sourced in, or in accordance with, the rules and the FWRO Act by expressing dissent against the way in which the Union was being run.  The source of such a workplace right arguably may have been found in the FWRO Act’s intention to stipulate provisions for the democratic functioning and control of a registered organisation, such as the Union, and its proscription in s 142(1)(c) of antithetical conditions, obligations or restrictions on its members, having regard to the Parliament’s intention to achieve that end in enacting the Act and its and the Fair Work Act’s objects.  The findings that the charges of gross misbehaviour were proved and the removal from elected, full-time office as employed organisers, with its concomitant terminations of employment, entailed that the Union had taken that adverse action against Mr Quirk and Mr Miller, both as members and elected employees (by reason of their membership), because they spoke out as they chose against the way in which the Union was being run.

17. Given that this was a case run on pleadings and in which Mr Quirk and Mr Miller sought pecuniary penalties against the Union for its alleged contraventions of s 340(1)(a) and items 1(a)–(d) and 7(b) and (d) in the table to s 342(1) of the Fair Work Act, it would not now be appropriate, on appeal, to allow them to reformulate their case: Coulton 162 CLR at 7.

18. For these reasons, I agree with Katzman J and Colvin J that Mr Quirk and Mr Miller failed to establish any error in the primary judge’s rejection of their adverse action claim.

    CONCLUSION

19. Accordingly, both the appeal and cross-appeal substantively fail. No application for costs was made and neither side identified a matter enlivening the powers of the Court to award costs in s 570 of the Fair Work Act or s 329 of the FWRO Act.  There should be no orders as to costs.

I certify that the preceding fifty-one (51) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Acting Chief Justice Rares.

Associate:

Dated:       11 October 2023

REASONS FOR JUDGMENT

KATZMANN J:

INTRODUCTION

1. This proceeding arises out of two judgments in three separate proceedings heard together in 2020 in difficult circumstances caused by the COVID-19 pandemic.  In the first, the primary judge held that the appellant, the Construction, Forestry, Maritime, Mining and Energy Union, generally referred to by the initialism CFMMEU, was liable to pay damages for breach of contract to the respondents, two former union organisers named Andrew Quirk and Brian Miller:  Quirk v Construction, Forestry, Maritime, Mining and Energy Union [2021] FCA 1587 (principal judgment or PJ).  His Honour later ordered the CFMMEU to pay each of them $189,428.59 plus interest.  In the second, his Honour declined to make an award of costs:  Quirk v Construction, Forestry, Maritime, Mining and Energy Union [2022] FCA 53 (costs judgment).  To some extent, all the parties were dissatisfied with the judgments and the consequential orders.  The CFMMEU appealed, Mr Quirk and Mr Miller cross-appealed, and both sides raised points of contention.

   BACKGROUND

2. Mr Quirk and Mr Miller are former employees and elected officials of the Construction and General Division (C&G Division) of the CFMMEU.  Mr Quirk began working for the Federal Union in 2003.  Mr Miller was employed in 1988 by the Building Workers and Industrial Union (BWIU), later the Construction, Forestry, Mining and Energy Union (CFMEU) and, later still, the CFMMEU.

3. Mr Quirk was first elected as a Divisional Branch Organiser of the CFMMEU in 2008. He was re-elected on 11 October 2012. Mr Miller was first elected to the same position in 2000 and re‑elected in 2012. Both were elected for four year terms, the most recent of which commenced on 2 January 2013. Accordingly, in the ordinary course of events, they would have remained in office until midnight on 1 January 2017. On 17 April 2015, however, after making unauthorised comments to the media which were highly critical of the management of the CFMMEU Mr Quirk and Mr Miller were removed from office and their employment came to an abrupt end. Charges of gross misbehaviour, contrary to rule 11 of the rules governing the C&G Division (Divisional Rules or Rules), were brought against them and at a meeting that day the Divisional Executive found them to be guilty as charged.  The determinations were made in their absence, after their request for an adjournment of the hearing of the charges was denied.  Ten days later, on 27 April 2015, they were informed that, as a consequence of their removal from office, their employment was at an end.

4. Mr Miller and Mr Quirk each filed proceedings in the Federal Circuit Court of Australia (now the Federal Circuit and Family Court of Australia (Division 2)) against the CFMEU NSW Branch, a State‑registered industrial organisation, seeking remedies for adverse action allegedly taken in contravention of various provisions of the Fair Work Act 2009 (FW Act). Later, Mr Quirk and Mr Miller filed proceedings in this Court against the CFMMEU and the members of the Divisional Executive seeking various forms of relief, including, amongst other things, orders for their reinstatement (later withdrawn) and declarations that rule 11 was (in effect) beyond power and unconstitutional in that it was “contrary to the implied freedom of political communication” (NSD 1344 of 2017) (the rules proceeding).  The Federal Circuit Court proceedings were transferred to this Court (becoming NSD 1027 of 2018 and NSD 1028 of 2018) (the adverse actions proceedings).  On 31 January 2019 the primary judge granted leave to Mr Quirk and Mr Miller to amend the name of the respondents in the adverse action proceedings to the CFMMEU and to add the CFMEU NSW Branch as a second respondent to each of those proceedings.  Statements of claim were later filed, which also expanded the claims made in the adverse action proceedings to include claims for breach of contract and breaches of the CFMEU Enterprise Agreement between the State Union’s C&G Division and the officers of that Division.

5. From now on, I shall refer to the CFMMEU as the Federal Union and the CFMEU NSW Branch as the State Union unless it is unnecessary to distinguish between the two, in which case I shall use the term Union or Unions for convenience.

6. At trial, after some preliminary skirmishing, the parties agreed that at all relevant times Mr Quirk and Mr Miller were jointly employed by both the Federal Union and the State Union (PJ [7]‑[10]).  When judgment was published on 17 December 2021, the primary judge ordered the parties to confer and submit agreed short minutes of order giving effect to his reasons.  The orders were made on 27 January 2022 but only against the Federal Union.

7. The evidence disclosed that, after remarks Mr Quirk made to a journalist were published in the Sydney Morning Herald (SMH) on 16 October 2014 and Mr Quirk and Mr Miller appeared on the Australian Broadcasting Corporation (ABC)’s 7.30 program the same day, they were each summoned to appear before the Federal Union’s Divisional Executive on 18 November 2014 to answer the charges.

8. The charge against Mr Quirk was in the following terms:

   On 16 October 2014 Andrew Quirk who is a Divisional Branch Officer in the NSW Branch acted in a manner that amounts to gross misbehaviour.

   Particulars:

   a)On 16 October 2014 Mr Quirk appeared on the ABC 7.30 program without authorisation of the union and purported to speak as a union officer about matters relating to the union. During that appearance he made comments which were false and/or adverse to the union.

   b)During his appearance on the ABC 7.30 program on 16 October 2014 Mr Quirk falsely stated that the union had been silent about reports of corruption, association with murderers, association with gangsters, association with terrorists, money being paid to union officials, union officials being forced out of their jobs and their careers. The union has not been silent on such reports. The union has inquired into those reports, deliberated upon them at a number of levels and made public statements about them.

   Mr Quirk’s public statement that the union had been silent about those reports was false and it was damaging to the union.

   c)During his appearance on the ABC 7.30 program on 16 October 2014 Mr Quirk falsely stated that the union had done nothing about arrears associated with the George Alex companies. The union did not do nothing about those arrears. The NSW Branch recovered over $1.6 million in arrears from companies associated with Mr Alex in the period May 2012 to August 2014.

   Mr Quirk’s public statement that the union had done nothing to recover worker’s [sic] entitlements was false and it was damaging to the union.

   d)During his appearance on the ABC 7.30 program on 16 October 2014 Mr Quirk made adverse comment about the National Secretary by falsely stating that the terms of reference of the National Office Inquiry into allegations made by Mr Quirk about the NSW Branch in October 2013 failed to include an allegation that the National Office had contributed to the matters the subject of investigation. The terms of reference of the investigation did include Mr Quirk’s allegation about the involvement of the National Office.

   Mr Quirk’s public statement that the National Secretary failed to investigate his allegation about the National office was false and it was damaging to the National Secretary and the union.

   e)During his appearance on the ABC 7.30 program on 16 October 2014 Mr Quirk made false claims about other Officers and employees of the union stating that he went to work every day and dealt with experienced thugs who were sizing him up to assault him.

   Mr Quirk’s public statement that the union officers and employees he worked with were experienced thugs who wanted to assault him was false and damaging to those officers and employees and the union.

9. The charge against Mr Miller read as follows:

   On or around 16 October 2014 Brian Miller who is a Divisional Branch Officer in the NSW Branch acted in a manner that amounts to gross misbehaviour.

   Particulars:

   a)On or around 16 October 2014 Mr Miller spoke to a journalist at the Sydney Morning Herald and program [sic] without authorisation of the union and purported to speak as a union officer about matters relating to the union. Mr Miller is quoted in that article as saying:

   i)Figures in the union were protecting other people just to save their jobs instead of telling the truth.

   ii)That the union has a problem and it needs to fix it or the union is going to be decimated.

   The statement that there are figures in the union not telling the truth to protect others is unsubstantiated, it is damaging to the union and it had not been raised within the union by Mr Miller before it was raised publicly.

   The statement that the union has a problem, which it needs to fix or be decimated is not substantiated, it is damaging to the union and it had not been raised within the union by Mr Miller before it was raised publicly.

   b)On 16 October 2014 Mr Miller appeared on the ABC 7.30 program without authorisation of the union and purported to speak as a union officer about matters relating to the union. During that appearance he made comments which were false and/or adverse to the union. During that appearance Mr Miller:

   i)Falsely alleged that the union was trying to get rid of Mr Quirk for supporting Mr Fitzpatrick.

   ii)Falsely alleged that Mr Quirk was being mistreated by the union.

   iii)Alleged that he had been mistreated by the union.

   Mr Miller’s allegations had not been raised by him within the union before he appeared on national television. The allegations were damaging to the union.

1. Mr Quirk and Mr Miller attended the meeting but, after submitting that they were not then in a position to answer the charges, they left.  The Divisional Executive adjourned consideration of the matter to 5 December 2014.  A few days earlier, solicitors for Mr Quirk and Mr Miller wrote separately to the Federal Union indicating that they were unfit to attend the meeting, and attached medical evidence.  In his reply the national secretary of the C&G Division, David Noonan, disputed the unfitness of each of them.  Nonetheless, he agreed to adjourn the hearing until the next meeting of the Divisional Executive, scheduled to begin on 17 March 2015 (which he later extended to 17 April 2015).  Both Mr Quirk and Mr Miller sought another adjournment around 15 April 2015 on the basis that they were unfit to attend the meeting.  On 17 April 2015 the Divisional Executive met in their absence, determined not to grant their request for an adjournment because of perceived inconsistencies in their medical evidence, and found that each of them was guilty of gross misbehaviour and should be removed from office forthwith. 

2. On 20 April 2015 the Federal Union wrote separately to Mr Quirk and Mr Miller informing them of the Divisional Executive’s actions and their appeal rights, enclosing a copy of rule 11, and asking them to return all Federal Union property in their possession as soon as possible. The letters did not purport to terminate their contracts of employment. But a week later, on 27 April 2015, they received a second letter informing them that a consequence of their removal from office was that their employment with the State Union ceased on the same date.

3. The primary judge did not declare rule 11 to be invalid. Rather, his Honour held that on its proper construction rule 11 did not authorise their removal from office and that the Federal Union did not comply with the obligation in rule 11 to give them an opportunity to defend themselves. He also held that their removal could not be justified on the ground that they had breached the Federal Union’s code of conduct.

4. His Honour held that the purported removal of Mr Quirk and Mr Miller by the Divisional Executive “brought about a chain of events leading to the end of the employment relationship” and constituted “adverse action” within the meaning of s 342(1) of the FW Act. Specifically, his Honour found that the Federal Union took adverse action within items 1 cll (a)–(c) and item 7 cl (b) of the table to the subsection, namely, by dismissing them, injuring them in their employment, by altering their positions to their prejudice, and by taking action that has the effect of prejudicing them in their employment. But his Honour dismissed their claims that the action was taken against them for one or more prohibited reasons, namely, that it was taken because they had exercised a workplace right, contrary to s 340(1); because they had engaged in industrial activity, contrary to s 346; and/or because of their political opinions, contrary to s 351. Nevertheless, his Honour held that they had been wrongfully dismissed by the Federal Union and were entitled to damages for breach of contract.

5. Damages were assessed on the counterfactual that, but for the wrongful dismissal, Mr Quirk and Mr Miller would have remained officers and employees until their four year terms expired at the end of 1 January 2017 at which point their employment would have ended.  His Honour rejected the submission by the Unions that any award of damages should be reduced because they had received workers’ compensation payments and because of payments they received from the Australian Construction Industry Redundancy Trust.

6. When the principal judgment was published the primary judge ordered the parties to confer and agree upon the orders which would give effect to his reasons.

7. Then on 27 January 2022 the primary judge made the following orders:

   1.The Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) pay Mr Quirk an amount of $189,428.59.

   2.The CFMMEU pay Mr Quirk interest as agreed or, in the absence of agreement, as ordered by the Court on the application of a party.

   3.        The CFMMEU pay Mr Miller an amount of $189,428.59.

   4.The CFMMEU pay Mr Miller interest as agreed or, in the absence of agreement, as ordered by the Court on the application of a party.

   5.        The payments be made to Mr Quirk and Mr Miller within 28 days

   6.Orders 1 to 5 are stayed pending, with respect to any order, an appeal by a party that seeks to have the order varied or set aside, the stay being conditional on any such appeal being filed within 28 days after the date of this order and on orders 7 and 8 below.

   7.Order 6 is made conditional upon the amount of $189,428.59 being paid within 14 days after the date of this order, to the Trust Account of Taylor and Scott, Lawyers, to be held in trust for Mr Quirk, but released:

   a. to Mr Quirk if an appeal is not lodged within 28 days after the date of this order;

   b. to Mr Quirk in the event of the upholding of the obligation to pay that amount to him by the Court after the disposition of the appeal;

   c. to Mr Quirk in consequent part should the Court, on appeal, reduce the amount the CFMMEU is obliged to pay him;

   d. to the CFMMEU in consequent whole or part upon the upholding of any appeal by the CFMMEU whereby the obligation to pay that amount is reversed or reduced.

   8. Order 6 is made conditional upon the amount of $189,428.59 being paid within 14 days after the date of this order, to the Trust Account of Taylor and Scott, Lawyers, to be held in trust for Mr Miller, but released:

   a. to Mr Miller if an appeal is not lodged within 28 days after the date of this order;

   b. to Mr Miller in the event of the upholding of the obligation to pay that amount to him by the Court after the disposition of the appeal;

   c. to Mr Miller in consequent part should the Court, on appeal, reduce the amount the CFMMEU is obliged to pay him;

   d. to the CFMMEU in consequent whole or part upon the upholding of any appeal by the CFMMEU whereby the obligation to pay that amount is reversed or reduced.

   9.The applications in NSD1344/2017, NSD1027/2018 and NSD1028/2018 be otherwise dismissed.

8. It is apparent that no orders were made against the State Union.

9. The parties agreed that there should be no order as to costs in the adverse action claims. The primary judge rejected an application by Mr Quirk and Mr Miller for their costs in relation to the wrongful dismissal claim, holding that costs were precluded by s 329 of the Fair Work (Registered Organisations) Act 2009 (Cth) (FWRO Act).

   THE REASONS OF THE PRIMARY JUDGE

   The Rules case

10. There were three aspects to this case. The first was the claim that Mr Quirk and Mr Miller were denied procedural fairness when the Divisional Executive heard and determined the charges in their absence. The second was the claim that their conduct did not and could not amount to “gross misbehaviour” within the meaning of rule 11. The third was that rule 11 was invalid.

11. The primary judge dealt first with the claim of procedural unfairness or, more accurately, the claim that the Federal Union breached rule 11(a)(ii)(c) which required that Mr Quirk and Mr Miller be “afforded an opportunity of being present at the hearing and of being heard …”.

12. His Honour was not persuaded that there were inconsistencies in the medical evidence (at [63] and [78] in relation to Mr Quirk and Mr Miller respectively). While he accepted that the Divisional Executive was not obliged to adjourn the matter indefinitely, his Honour considered that the proper course would have been to require Mr Quirk and Mr Miller to attend an independent medical expert, a course “well-known” in disciplinary proceedings, but which the Divisional Executive did not consider (at [85]). For these reasons his Honour concluded that Mr Quirk and Mr Miller were denied a reasonable opportunity to be present at the hearing as required by rule 11(a)(ii) and that, consequently, the Divisional Executive breached rule 11 by proceeding to deal with the charges (at [86]).

13. The next question was whether the conduct of Mr Quirk and Mr Miller constituted “gross misbehaviour” within the meaning of rule 11.

14. In holding that it was not, the primary judge reasoned that the rules of the C&G Division could not lawfully prohibit a member from expressing dissent about the manner in which the Federal Union was being managed; that if rule 11 authorised their removal for engaging in that conduct, it would be invalid to that extent; and therefore “gross misbehaviour” should be construed so as not to include conduct which consists of dissent over the way in which a union is being run (at [119]).

15. His Honour held that the Federal Union’s code of conduct, which, amongst other things, required officers to refrain from “casting damaging aspersions … or making comments about fellow officers either to other officers and staff or to persons outside of the Union” and stipulated that all criticism and disagreements were to be “processed by internal democratic debate”, could not be relied on to achieve the same outcome and was invalid to the extent that it applied to the impugned conduct (at [126]).

16. Mr Quirk and Mr Miller raised a multitude of other arguments which his Honour did not need to deal with but which are revived in the appeal and in their notice of contention.

    The adverse action case

17. It appears that this part of the case was confined to the issues arising out of the participation of Mr Quirk and Mr Miller in 7.30 and the “complaints” made to 7.30 (see trial transcript at T1188–9).

18. Mr Quirk and Mr Miller contended that the adverse action taken against them consisted of the laying of the charges, their removal from office as elected organisers, and the termination of their employment. They alleged that the action was taken for one or all of three prohibited reasons. The first was that they had engaged in “industrial activity” within the meaning of s 347(b) of the FW Act, in contravention of s 346. The second was that their statements to the media were expressions of their political opinions when speaking to the media (s 351). The third was that they had both exercised a “workplace right”, in particular their rights as employees to make complaints in relation to their employment (s 340 read with s 341).

19. At the trial there was a dispute as to whether the employment relationship had been terminated.  The primary judge resolved this dispute in favour of Mr Quirk and Mr Miller.  His Honour held that, because the removal decisions were invalid, Rita Mallia’s letter of 27 April 2015 (informing them that their employment came to an end on 17 April 2015 as a consequence of their removal from office) was a repudiation of their contracts of employment, and that Mr Quirk and Mr Miller had accepted the repudiation (at [345]).

20. There was also a dispute about whether the laying of the charges and the sending of the letter advising them of their removal from office constituted adverse action.  The primary judge held that they did not (at [237]–[239]).

21. There were two limbs to the industrial activity claim.  One was that adverse action had been taken against them because they did not comply with a lawful request or requirement of the Federal Union (that they not speak to the media or any other third party without first obtaining its authorisation) (s 347(b)(iv)).  Notably, they did not plead that adverse action had been taken against them because they did not comply with an unlawful request or requirement (to that effect) (s 347(e)).  The other was that the adverse action was taken because they did not “represent or advance” the Federal Union’s views or interests (s 347(b)(v)).  Evidently, in its final iteration the claim was that their conduct in speaking to 7.30 and the SMH was contrary to the Federal Union’s interests (at [269]).

22. The primary judge held that neither limb was made out.

23. With respect to the first limb, his Honour found that the evidence did not establish that the Federal Union had requested its members not to speak to the media without authorisation (at [260]).  He accepted that the evidence established the existence of “a widely held understanding” by “those involved in the management of the Federal Union that members should not speak to the media without authorisation” (at [261]).  Nevertheless, his Honour concluded that it was unlikely the understanding existed in October 2014 when Mr Quirk and Mr Miller appeared on 7.30 because, by that time “whatever had been an understanding had … fructified into the form of cl 12” of the Federal Union’s Code of Conduct, effective 28 June 2013, which was annexed to Mr Miller’s affidavit and replaced an earlier code of conduct, annexed to Mr Quirk’s affidavit, which did not contain a provision to this effect.  The primary judge referred to the 2013 publication as the New Code of Conduct and noted that it was in place at the time Mr Quirk and Mr Miller spoke to the media (at [261]).  Clause 12 of the New Code of Conduct provided that:

    No literature other than union and other agreed literature is to be distributed by Officers of the Union unless authorised by the Secretary. Any comments or contact with the media shall be approved by an Executive Officer.

24. His Honour inferred that cl 12 formalised what had previously been an informal understanding (at [261]) and the “widely held understanding” was no longer a requirement within the meaning of s 347(b)(iv) by the time Mr Quirk and Mr Miller appeared on 7.30 and spoke to the SMH (at [261]). At all events, his Honour held that cl 12 did impose a requirement within the meaning of s 347(b)(iv) that Mr Quirk and Mr Miller not to speak with the media without first obtaining permission (at [264]).

25. But his Honour held that the requirement was unlawful, so that s 347(b)(iv) did not apply (at [265]).

26. With respect to the second limb, his Honour noted (at [270]) that s 347 is concerned with protecting freedom of association but does not extend to taking positive steps inimical to the interests of an industrial association unless taking those steps can be seen as part of an exercise of freedom of association or connected with it, citing Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (The Bay Street Appeal) (2020) 282 FCR 1 at [32] (Allsop CJ). He went on to hold that the impugned conduct was outside the scope of s 347 because “an exercise in dissent about the manner in which an industrial association is being managed [does not fall] within the protection of a provision which is concerned with freedom of association” (at [273]–[274]).

27. On the assumption that the Divisional Executive removed Mr Quirk and Mr Miller because of their political opinions, his Honour held (at [286]–[287]) that this claim was not made out because the action was taken in Sydney, the Anti-Discrimination Act 1977 (NSW) does not render unlawful discrimination on the ground of political opinion, and therefore the prohibition against taking adverse action for this reason does not apply (see s 351(2)(a)).

28. The “workplace right” which Mr Quirk and Mr Miller alleged they had exercised was the right referred to in s 341(1)(c)(ii), namely the ability to make “a complaint or inquiry … in relation to [their] employment”. The complaints were said to consist of their remarks to the media.

29. His Honour rejected the claim that the adverse action was taken because Mr Quirk and Mr Miller had exercised a workplace right because he did not consider that s 341(1)(c)(ii) was broad enough to capture “[w]histleblowing to the media” (at [291]–[296]).

30. In view of the conclusions his Honour reached on the application of the provisions upon which Mr Quirk and Mr Miller had relied, it was unnecessary for him to determine whether the adverse action was taken for any of the reasons they claimed. In anticipation of an appeal, however, his Honour proceeded to consider that question on the assumption that his conclusions were wrong. His Honour was satisfied one of the substantial and operative reasons the Divisional Executive purported to remove Mr Quirk and Mr Miller from the offices they held was because they had spoken to the media without authorisation (at [309]–[313]). He was also satisfied that another of those reasons was that the two men had acted in a way that was adverse to the interests of the Union (at [314]–[318]). But his Honour said there was no support in the evidence for the proposition that one of the reasons for the action was that the men had made a complaint to, or an inquiry of, the media ([at [319]). Further, while his Honour was satisfied that the statements they made to the media were “manifestations of political opinion” and was prepared to assume that this constituted political opinion for the purposes of s 351(1), he was not prepared to infer that the Divisional Executive purported to remove the men from office because of their political opinions (at [320]–[321]). His Honour did not consider that it was open to reject the affidavit evidence given by the members of the Divisional Executive that they were not motivated by the politics of Mr Quirk and Mr Miller (at [325]). While he was prepared to accept that some members of the Divisional Executive were influenced by the contents of their statements and that their statements were political in nature, his Honour did not accept that this signified that they had been removed because of their political opinions. He went on to say (at [326]):

    What Mr Quirk and Mr Miller said was capable of bearing multiple characterisations. Whilst I accept that their statements to the media constituted an expression of political opinion, the same speech acts also constituted the denigration of the Federal Union. Proof of the former does not entail that they were removed for that reason and it certainly does not entail that they were not removed because of the latter: Construction, Forestry, Mining and Energy Union v Endeavour Coal Pty Ltd [2015] FCAFC 76; 231 FCR 150 at [35], [52]-[56].

31. Later, at [329] his Honour concluded:

    In my view, it is clear that the Divisional Executive did not remove Mr Quirk and Mr Miller because of their politics. It removed them because of the disloyalty perceived in Mr Quirk and Mr Miller’s highly public denigration of the Federal Union and their decision to speak without permission to the media. My overall and strong impression of the evidence of the members of the Divisional Executive is that the Federal Union is almost tribal in nature and that within its ranks loyalty is the cardinal value above almost everything else. Mr Quirk and Mr Miller’s sin was to transgress that cardinal value in the national media during the moment of the Federal Union’s greatest peril. I do not think that their politics entered into the equation. For the same reasons, I reject Mr Seck’s alternate submission based on the concept of imputed political opinion.

    (Emphasis added.)

    The breach of contract case

32. The primary judge concluded that, while Mr Quirk and Mr Miller had already been employed jointly by the Unions, upon their election as organisers, a “new contract” of employment came into existence under which the Federal and State Unions employed them as elected organisers in the service of the Divisional Branch (at [21]).  His Honour found that it was an implied term of their contracts that their employment was “coterminous with the holding of the office to which they had been elected” (at [21]) and that their employment contracts ended when they ceased to hold office (at [23]).

33. Having found that their removal from office was not authorised by rule 11, the primary judge held that the decision of the Divisional Executive was invalid. His Honour held that the availability of a right of appeal did not cure either the denial of procedural fairness or the erroneous finding (at [342]–[344]). As indicated above, he also accepted Mr Quirk and Mr Miller’s argument that the Federal Union repudiated the contracts in its letter of 27 April 2015 and that Mr Quirk and Mr Miller accepted the repudiation. Consequently, his Honour held that they were wrongfully dismissed and entitled to sue the Federal Union for breach of contract (at [332]‑[345]). While their contracts of employment with both Unions came to an end when they accepted the repudiation, his Honour held that the State Union was not liable because it was the Federal Union alone which breached their contracts (at [346]).

    Relief

1. Finally, when it comes to instances like the present, the ordinary meaning of the words used in the composite term that is being defined (in the present case 'workplace right') are not to be used in determining the meaning because of the circularity involved in such an approach:  Owners of the Ship 'Shin Kobe Maru' v Empire Shipping Company Inc (1994) 181 CLR 404 at 419; but see Commissioner of Taxation v Auctus Resources Pty Ltd [2021] FCAFC 39; (2021) 284 FCR 294 at [68] (Thawley J, McKerracher and Davies JJ agreeing).

2. Therefore, it is perhaps understandable that the interpretation of s 341(1)(c)(ii) has given rise to the range of views to which Katzmann J has referred.

3. At its heart, the issue is whether the reference to an employee being able to make a complaint or inquiry in relation to his or her employment refers to (a) an ability to make a complaint or raise an inquiry that arises from some form of entitlement or right to complain or inquire that is conferred upon an employee as distinct from the inherent ability that any employee has to make a complaint or inquiry; or (b) an ability to exercise the inherent capacity of any person to make a complaint or inquiry where that ability is relevantly connected to the employee's terms or circumstances of employment.

4. I will refer to these two possible constructions as alternative (a) and alternative (b).

5. In Whelan v Cigarette & Gift Warehouse Pty Ltd [2017] FCA 1534, Collier J approached the provision on the basis that a complaint or inquiry about an employee entitlement that was 'founded on a source of entitlement, whether instrumental or otherwise' would fall within the scope of s 341(1)(c)(ii) (at [33]). That approach was relevantly founded upon reasoning by Dodds‑Streeton J in Shea v TRUenergy Services Pty Ltd (No 6) [2014] FCA 271. It was endorsed on appeal: Cigarette & Gift Warehouse Pty Ltd v Whelan [2019] FCAFC 16; (2019) 268 FCR 46 at [28] (Greenwood, Logan and Derrington JJ). On the face of it, the Whelan approach may be thought to accord with alternative (a) as described above.

6. Subsequently, Rangiah and Charlesworth JJ reasoned in PIA Mortgage Services Pty Ltd v King [2020] FCAFC 15; (2020) 274 FCR 225 at [13] that the word 'able' refers to an entitlement or right to make a complaint or inquiry. This indicates that, in order to come within the terms of s 341(1)(c)(ii), the ability to complain or inquire must have some legal source. However, their Honours then concluded at [26] as follows:

   An employee is 'able to complain' to his or her employer within s 341(1)(c)(ii) of the [Fair Work] Act concerning the employer's alleged breach of the contract of employment. The source of that ability is the general law governing contracts of employment. Further, an employee is 'able to complain' to the employer or to a relevant authority of their employer's alleged contravention of a statutory provision relating to the employment. That ability derives from at least the statutory provision alleged to have been contravened. The statute need not expressly or directly confer a right to bring proceedings or to complain to an authority. As Dodds-Streeton J held in Shea at [29], the complaint must be made genuinely, in good faith and for a proper purpose.

7. Expressed in the above terms, their Honours appear to expand the Whelan notion of a source for the ability to complain or inquire to include any complaint that there had been a breach of the contract of employment or that there had been a contravention of a statutory provision 'relating to the employment'.  As to these matters there need not be a right conferred to complain as such.  Rather, the existence of the contractual right or the statutory right 'relating to the employment' carried with it an inherent ability for an employee to complain or inquire about such matters.  Although the contractual or statutory right concerning the terms or circumstances of employment was not itself expressed in terms of a right or entitlement to complain or inquire, the existence of the contractual or statutory right carried with it such a right or entitlement, namely to complain or inquire about the existence, performance or breach of the right or entitlement conferred by contract or statute.  This incorporated much of alternative (b) into alternative (a).

8. In Cummins South Pacific Pty Ltd v Keenan [2020] FCAFC 204; (2020) 281 FCR 421, Bromberg J (with Mortimer J agreeing) adopted a broader approach. It is an approach that accords much more with alternative (b). It would embrace any complaint or inquiry about the terms or circumstances of a person's employment. It would not require the complaint or inquiry to be 'in relation to' a legal right or entitlement concerning the terms or circumstances of a person's employment that was conferred by a law (statutory or unwritten) or an instrument with legal effect. In Cummins, Anastassiou J agreed with the reasoning of Rangiah and Charlesworth JJ in PIA Mortgage at [285]-[291]. There have been other decisions that have supported the approach as expressed in PIA Mortgage.

9. In Alam v National Australia Bank Limited [2021] FCAFC 178; (2021) 288 FCR 301 there was argument as to which of the two approaches should be followed. Together with White and O'Callaghan JJ, I was a member of the Court in Alam. In the course of our reasons in that decision, we made the following observation at [75]:

   It is evident that, in applying the approach of Dodds‑Streeton J in Shea v TRUenergy, Collier J proceeded on the basis that a complaint or inquiry to an employer about an entitlement for which the contract of employment makes provision is within the scope of s 341(1)(c)(ii). Her Honour did not proceed on the basis that either s 341(1)(c) or Shea v TRUenergy required that the right or entitlement to make a complaint or inquiry be itself found in the contract of employment: it is sufficient if the complaint or inquiry relates to a subject matter for which the contract of employment makes provision. It is also to be noted that Collier J did not purport to state exhaustively the kinds of complaints or inquiries which would be within, and without, s 341(1)(c).

10. In short, even going back to the reasoning of Collier J in Whelan, it was evident that a complaint or inquiry that had as its subject matter some right or entitlement for which the contract of employment made provision, was a complaint or inquiry that fell within s 341(1)(c)(ii). That is, an employee was able to make a complaint or inquiry in relation to his or her employment for the purposes of that provision if the complaint or inquiry concerned a right or entitlement of the employee (irrespective of whether the employee could point to some conferral of a right or entitlement to complain or inquire).

11. In that context, the conclusion we reached in Alam was that the decision in Whelan should be given effect: at [97]. However, that conclusion was based upon the explanation of Whelan that preceded it and the view that the reasoning in Whelan and PIA Mortgage was to the same practical effect: at [98].

12. It follows that in order to rely upon s 341(1)(c)(ii), Mr Quirk and Mr Miller had to point to some form of ability to complain or inquire which might arise from the conferral by law of a right or entitlement to complain or inquire or the making of a complaint that concerned a legal right or entitlement in relation to the terms or circumstances of their employment about which they could therefore make a complaint or inquiry.  The concerns raised by Mr Quirk and Mr Miller in the statements that gave rise to the charges against them did not concern any right or entitlement they may have as employees.  They were not suggesting that, in their employment, they were being directed to do anything that was contrary to law or some right or entitlement they enjoyed as employees.  They made no complaint or inquiry about the circumstances of their employment at all.  The Fair Work Act is concerned with employment.  It is not concerned with the interests that Mr Quirk and Mr Miller had as members of the Union or indeed as elected representatives to raise issues of concern as to the manner in which the Union was being conducted.

13. Unusually in the present case, it was the tenure of Mr Quirk and Mr Miller as elected officials of the Union that gave rise to their employment.  Action taken to remove them as elected officials did not concern the conditions or circumstances of their employment.  It had consequences for their employment but the action taken against them by the bringing of the charges and the decision to remove them as officials was not taken because they were employees of the Union who were able to make a complaint or inquiry about the terms or circumstances of their employment.  It was taken because of the public statements they made criticising the Union.  Those statements did not concern their employment or any right or obligation concerned with the circumstances of their employment.  Rather, they concerned the broader affairs of the Union.

14. The primary judge rejected the claim by Mr Quirk and Mr Miller that adverse action had been taken against them because they had exercised a workplace right on the basis that they had no relevant entitlement to complain to the media: at [293]-[294]. His Honour relied upon the absence of any legal norms which conferred upon them an ability to make a complaint to the media. Possibly that approach took an unduly narrow approach of the scope of s 341(1)(c)(ii) and the reasoning in PIA Mortgage.  It did so only to the extent that it required the existence of a right to complain or inquire that had been conferred by law. For reasons that have been given, s 341(1)(c)(ii) did not require the existence of a legally conferred right or ability to complain or inquire and nor did the reasoning in PIA Mortgage.  Rather, it referred to the ability to complain or inquire that is conferred by the existence of some form of underlying right or obligation in connection with the terms or circumstances of a person's employment that gives the person a foundation to advance a complaint or inquiry irrespective of whether there is an expressly conferred ability to do so.  The ability to complain or inquire may be expressly conferred or it may arise from the existence of the right or obligation that is conferred in connection with the terms or circumstances of a person's employment.

15. It may be that the primary judge had these possibilities in mind. However, the absence of any consideration as to whether Mr Quirk and Mr Miller had a right or obligation in connection with the terms or circumstances of their employments admits of the possibility that his Honour was applying a more narrow view. It is not necessary to determine whether that was the case because, in the circumstances I have described, adopting the wider view no error has been demonstrated in the ultimate determination by the primary judge that Mr Quirk and Mr Miller had failed to establish that they had an ability to complain in relation to their employment about the matters which were the subject of the charges. Therefore, the primary judge was correct to conclude that the foundation for the claim under s 341(1)(c) of the Fair Work Act had not been established.

16. After the preparation of these reasons, the High Court delivered its decision in Qantas Airways Limited v Transport Workers Union of Australia [2023] HCA 27 in which there was reference to aspects of the above issues. The parties were given an opportunity to file short submissions as to whether the decision has any bearing upon the competing contentions as to alleged error by the primary judge in the present appeal. For Mr Quirk and Mr Miller, it was submitted that the views of the plurality in Qantas supported the contentions that they had advanced and it followed that the primary judge was in error in the manner alleged. In that regard, the joint reasons of Kiefel CJ, Gageler, Gleeson and Jagot JJ made reference to what is meant by the words 'is able to' in s 341(1)(b) and (c). At [36], their Honours said:

    The words 'is able to' in s 341(1)(b) and (c), while not words of limitation, necessarily indicate that circumstances have come into existence in which the person has a present capacity to exercise a relevant power or freedom. These powers and freedoms are specifically identified in s 341(1)(b) (read with s 341(2)) and in s 341(1)(c).

    The decisions in Cummins at [34] and Alam at [85] were referenced.

17. However, in Qantas their Honours were concerned with contentions which focussed upon temporal aspects of the operation of s 341(1)(b), particularly the significance for that aspect of the provision word of the use of the word 'has' in the opening words 'A person has a workplace right if …'. Hence, the focus upon circumstances having come into existence in the passage quoted above. As to the issue in the present appeal, respectfully, it appears to me that the terms in which their Honours' reasons were expressed still require the complaint to have a workplace connection of the kind I have described. That is to say, the reference to a relevant power or freedom does not mean any such power or freedom irrespective of whether it has any connection to the workplace.  It may be observed that their Honours went on to refer to PIA Mortgages with approval (fn 35), albeit as to a statement concerning the evident object of s 340(1).

18. In separate reasons, Steward J at [116] referred to Shea and Whelan with approval as being correct in requiring the ability to make a complaint as expressed in s 341(c) to be 'underpinned by some entitlement or right to do so'. However, this appears to be a minority view.

19. For those reasons, I do not understand any aspect of the reasoning in Qantas to require a different view to that which I have expressed in these reasons as prepared before the decision.

    Issues 11 and 20:  Did the primary judge err by not finding that the Executive had decided to remove Mr Quirk and Mr Miller from office because they had made a complaint to the media?

20. These issues only arise if (contrary to the above reasoning), Issue 19 is determined in favour of Mr Quirk and Mr Miller, namely that in speaking to the media Mr Quirk and Mr Miller had exercised a workplace right (the ability to make a complaint to the media in relation to their employment).  Given the conclusion reached as to Issue 19, in order to address Issues 11 and 20, it is necessary to assume (contrary to the above reasoning) that Mr Quirk and Mr Miller had a workplace right of that character.  The issue then to be considered by the primary judge was whether the charges had been brought and upheld - with the consequence of their removal from employment - because they had exercised that workplace right by making a complaint to the media.

21. Before the primary judge each of the members of the Executive who participated in the decisions to remove Mr Quirk and Mr Miller gave evidence.  As to the reasons for their removal as officers of the Union (and consequent repudiation of the contracts of employment), the primary judge began by stating that, in the absence of other evidence, he would infer that the Executive (that is, the decision making body) found that each of Mr Quirk and Mr Miller was guilty of gross misbehaviour because it accepted the correctness of the charges as particularised:  at [309]-[310].  His Honour found that those charges included allegations that each of Mr Quirk and Mr Miller had spoken to the media without authorisation.

22. His Honour then made the following finding at [311]:

    Turning then to the affidavit and oral testimony of members of the...Executive, it's clear in my view, that the evidence establishes that the … Executive purported to remove [Mr Quirk and Mr Miller] from office because (i.e.  for the substantial and operative reason that) Mr Quirk and Mr Miller had spoken to the media without authorisation.

23. The primary judge then considered the evidence of each of the nine members of the Executive.  He made the following findings:

    (1)All nine witnesses gave evidence that one of the reasons Mr Quirk and Mr Miller were removed from office was because they had spoken to the media without authorisation (at [312]).

    (2)Three of those witness (Messrs Hall, Reardon and Cartledge) expressed doubt about their ability to recall in detail what their motives were at the time (at [312]).

    (3)Even discounting the evidence of those three, there was a significant majority of the Executive who acted on that basis (at [313]).

    (4)In the above circumstances, Mr Quirk and Mr Miller had proven that one of the substantive and operative reasons for their conviction on the charges was because they had spoken to the media without authorisation (at [313]).

24. Expressed in those terms, the finding went beyond a conclusion that the Union had failed to discharge its onus.  It was a finding that Mr Quirk and Mr Miller had proven their claim that they had been removed because they had spoken to the media.

25. Ultimately, the primary judge found that Mr Quirk and Mr Miller did not prove that they were removed because they had made a complaint to the media: at [319]. The relevant passage is set out in reasons of Katzmann J but for convenience I set it out again:

    The minutes of the meeting do not record as any part of the reason for Mr Quirk and Mr Miller's removal from office that they had 'complained' to the media or that they had made an 'inquiry' of the media.  It certainly sustains the conclusion that the Divisional Executive thought that they had spoken with the media in terms with which the Divisional Executive was not well pleased.  But it is impossible to read the minutes as admitting of an interpretation in which the displeasure of the Divisional Executive had as its focus of attention the fact that Mr Quirk and Mr Miller had made a complaint to the media.  Applying a little bit of common sense (a commodity in scarce supply in this litigation), it is obvious that the Divisional Executive's displeasure arose from the fact that Mr Quirk and Mr Miller appeared on national television to criticise the manner in which the Federal Union was being managed.  Consistently with the minutes, the evidence given by the members of the Divisional Executive does not sustain a conclusion that it acted because Mr Quirk and Mr Miller had made a 'complaint' to the media.

    (original emphasis)

26. As to this reasoning, s 361 of the Fair Work Act applied.  It provides that if an allegation that a person took action for a particular reason is made as part of an allegation of contravention then it is presumed that the action was taken for that reason 'unless the person proves otherwise'.

27. The case for Mr Quirk and Mr Miller concerning the onus was put in the following way in their written submissions on the cross-appeal (para 9):

    To discharge the onus placed under s 361, each decision maker must usually give positive evidence on the actual non-prohibited reasons for the adverse action and exclude the negative proposition that the action was not taken for the alleged reason or the alleged intent. As s 360 of the FW Act recognises expressly that action may be taken for more than one reason, even if the reasons advanced as actual reasons for the decision are accepted, the court must also conclude that a respondent has proven that actual non-prescribed reasons were the sole reasons for the adverse action in order to rebut the presumption under s 361 of the FW Act.

    (footnotes omitted)

28. In addition, the following submission was made concerning the way in which Mr Quirk and Mr Miller were said to have relied upon s 363 of the Fair Work Act in putting their case to the primary judge (para 10):

    Section 363(1)(c)(i) states that action taken by a member, or group of members, of the industrial association is taken to be the action of the industrial association if the action is authorised by the rules of the association…by virtue of 363(1) and (3) it is enough to show that one member of the … Executive acted for a reason including an alleged prohibited reason to prove that [the Union] took adverse action for a prohibited reason … it is necessary to examine the state of mind of all voting members.

    (original emphasis)

1. Section 363(3) provides:

   If, for the purposes of this Part, it is necessary to establish the state of mind of an industrial association in relation to particular action, it is enough to show:

   (a)that the action was taken by a person, or a group, referred to in paragraphs (1)(a) to (e); and

   (b)that the person, or a person in the group, had that state of mind.

2. Ultimately, for Mr Quirk and Mr Miller a number of errors were alleged as to the part of the reasoning by the primary judge which was to the effect that the action of removing them as officers was not taken because of a complaint made by them to the media, rather it was taken because they spoke to the media.  The alleged errors were as follows:

   (1)the primary judge sought to determine whether the stated reasons of the Executive could be characterised as the alleged proscribed reasons for removal rather than determining whether the evidence given by each member of the Executive as to the reasons for removal excluded the alleged proscribed reasons;

   (2)the primary judge erred in failing to bring to account a separate and later finding (made at [329]) concerning the reasons for removal of Mr Quirk and Mr Miller and had that finding been brought to account then the primary judge would have concluded that the members of Executive had omitted one of their true reasons for removal from their evidence and evaluated the other evidence on that basis;

   (3)on a proper construction of s 363(3), combined with the presumption arising under s 361, if a member of the Executive had failed to rebut the presumption in respect of their own reasons then the alleged adverse action had been taken for the proscribed reasons alleged by the person alleging the contravention; and

   (4)the primary judge should have found that the subjective reasoning process of Messrs Hall, Reardon and Cartledge had not been proven because they had expressed doubt about their ability to recall and therefore, applying the construction of s 363(3) that was contended for by Mr Quirk and Mr Miller, the Union had not discharged its onus.

3. As to (1), the proposition appears to be that his Honour addressed the stated reasons without adequately considering whether there were unstated reasons that were a substantial and operative reason or the decision by the members of the Executive.  It must be remembered that the task for his Honour was to determine whether the reason alleged was a substantial and operative reason, not to plumb the depths of every possible reason or indeed reach a conclusion as to all of the operative reasons.

4. In the circumstances of this particular case, when it came to the part of the claim that was based upon being removed for making an alleged complaint to the media, the real issue was not as to whether the actions of Mr Quirk and Mr Miller in speaking to the media was a substantial and operative reason for their removal, but rather whether their speaking to the media could be characterised as the making of a complaint to the media.  The primary judge found that it was not so characterised by the members of Executive.  In context, that was a finding based upon the content of the minutes which were accepted to be an accurate record and the finding that a significant majority of the members of the Executive acted on the basis that Mr Quirk and Mr Miller had spoken to the media without authorisation.

5. It was not necessary, in the particular context, for his Honour to express explicitly a finding that the making of a complaint to the media had been established not to be a reason for the decision to remove.  It was implicit in his Honour's approach.  In any event, the case on the cross-appeal did not go on and refer to all of the available evidence to support the making of such a finding.  In substance the claim was of an error in a factual finding and an appellant challenging a factual finding must undertake the task by seeking to demonstrate error having regard to all of the relevant evidence.  The further difficulty is that the case before the primary judge was premised on the notion that removal for any sort of complaint about the Union would be a contravention.  For reasons that have been given, it would be necessary for the complaint that gave rise to the adverse action to be in respect of the terms or circumstances of employment.  That was not the basis upon which the case was presented.  No appeal ground was advanced on the basis that there should have been an alternative finding and understandably so given the way the case was presented to the primary judge.

6. For all those reasons, I do not accept the first alleged error.

7. As to (2), the primary judge made a finding at [329] when dealing with the claim that the removal was discrimination because of the politics of Mr Quirk and Mr Miller that was expressed in the following terms:

   In my view, it is clear that the … Executive did not remove Mr Quirk and Mr Miller because of their politics.  It removed them because of the disloyalty perceived in Mr Quirk and Mr Miller's highly public denigration of the … Union and their decision to speak without permission to the media.  My overall and strong impression of the evidence of the members of the … Executive is that the … Union is almost tribal in nature and that within its ranks loyalty is the cardinal value above almost everything else.  Mr Quirk and Mr Miller's sin was to transgress that cardinal value in the national media during the moment of the … Union's greatest peril.  I do not think that their politics entered into the equation.

8. This was said to be a finding as to the existence of a further reason for the removal of Mr Quirk and Mr Miller, namely their disloyalty and the transgression of a cardinal value in a tribal culture.  However, I do not understand this finding to be anything more than a restatement in different terms of the earlier finding that the reason for removal was because Mr Quirk and Mr Miller had spoken to the media without authorisation.  Therefore, contrary to the submission advanced, it was not a basis for concluding that his Honour had failed to consider whether there might have been other reasons for the removal, relevantly because a complaint had been made to the media.

9. As to (3), s 361 and s 363 do not operate together. Section 361 is dealing with onus. It does not concern the mode of proof of matters relied upon to discharge the onus. It has the effect of requiring a person who is alleged to have contravened the relevant Part of the Fair Work Act by taking action for a stated reason to 'prove otherwise'.  If that onus is not discharged then the alleged reason is presumed to be the reason.  One way of proving otherwise in the case of a group decision is to prove that persons who joined in the group decision for the alleged reason had no influence over the decision made by the group as a whole.  If such proof is given then the reason of a single group member would not determine whether the onus had been discharged.

10. Section 363 is facilitative. It provides a means by which the state of mind of an industrial association may be proven. By its operation, in order to establish the state of mind of an industrial association in the case of action taken by a group 'it is enough to show' that a person in the group had that state of mind. However, the provision does not exclude the leading of other evidence. It is open to lead evidence from other members of the group so as to persuade the Court to conclude that the reason of the group was not represented by the state of mind of the particular individual. It is not a substantive provision that seeks to impose liability for group decisions in every case where one member of the group has acted for a reason that would amount to a contravention. Liability still falls to be determined by reference to the whole of the evidence of the members of the group. What s 363 does is to relieve a party from having to lead evidence concerning the reasons of the whole of the group in every case. It is enough to show, in the absence of other evidence, that at least one member of the group had the relevant reason.

11. The reasons of the primary judge concerning the application of the two provisions were expressed in the following terms at [305]:

    [Mr Quirk and Mr Miller] submit that the effect of s 363(1)(a) and s 363(3)(b) is that if any member of the … Executive had the purpose of removing [Mr Quirk or Mr Miller] from office because they did not comply with cl 12 of the Code of Conduct then the … Executive is taken to have had that state of mind. I accept this but neither this provision nor s 360 remove the need to identify the substantial and operative reason for the relevant action. For example, if one person on the … Executive had the relevant state of mind but no-one else did the two provisions operate so that the … Executive is taken to have taken the action for the reason embodied in the state of mind of the single member holding it. However, this deeming does not relieve the fact finder of the need to identify which of the various reasons of the … Executive constituted the substantial and operative ones. Just because the individual member's reason is taken to be the reason of the … Executive does not entail that it was a substantial and operative reason that motivated the … Executive to remove [Mr Quirk and Mr Miller] from office.

12. On the basis that the first sentence is to be read as allowing for contrary proof in the manner I have explained, no error has been demonstrated in the reasoning of the primary judge.

13. As to (4), it does not follow from a finding that persons who have been called have doubt as to their ability to recall in detail what their motives were at the time, that the onus has not been discharged in respect of reasons held by them (assuming the reasons of each member of Executive needed to be demonstrated).  In the present case there were the contemporaneous documents and the evidence of all other members of the Executive as to their views and what occurred.  Conclusions could be reached based upon that evidence.  Again, there was no effort to undertake the task of demonstrating what the factual finding ought to have been having regard to all of the available evidence.

14. In any event, for reasons that have been given, there was no error in the primary judge reasoning from a view as to the whole of the evidence (in particular the evidence given by a majority of the members of the Executive) as to whether the alleged reason was a substantial and operative reason why the group decided to remove Mr Quirk and Mr Miller.

15. Finally, it was contended that the primary judge erred in approaching the issue of whether the reason of the Executive for deciding to remove Mr Miller and Mr Quirk was because they had exercised a workplace right to complain in relation to their employment on the basis that it depended upon whether the reason concerned the making of a complaint to the media.  It was contended that the alleged adverse action could be established where the reason for the adverse action was the making of a compliant by conveying 'a grievance, a finding of fault or accusation' irrespective of whether it was directed to anyone in particular.

16. For reasons that have been given, in my view, in order for a workplace right to come within s 341(1)(c)(ii) it is not necessary for there to be a demonstrated ability to make a complaint or inquiry to a particular body conferred by legal norms. Rather, the provision is concerned with complaints or inquiries as to the terms or circumstances of a person's employment that are founded upon a right or obligation that arises under an enforceable instrument or law. However, the acceptance of that contention, of itself, is not a sufficient basis upon which to uphold any aspect of the cross-appeal.

    Issues 21 and 22:  Did the primary judge err in not determining whether there had been a breach of the relevant enterprise agreement by not following a termination procedure?

17. Issue 21 was deleted.  As to Issue 22, the primary judge found that the separate union that existed for the purposes of state industrial laws (State Union), whilst a joint employer, had nothing to do with the determinations of the contracts of employment of Mr Quirk and Mr Miller: at [346]. This finding was challenged.

18. For reasons given by Katzmann J the challenge to the finding fails.  In those circumstances, it is not necessary to consider other aspects raised by Issue 22.

    Conclusions and orders

19. The appeal should be allowed to the extent of the concessions made.  The cross-appeal should be dismissed.  I agree with the proposed course of inviting the parties to bring in minutes of orders to give effect to the Court's reasons.  As to costs, there being no application for costs by any party there should be no order as to costs.

I certify that the preceding one hundred and seventy-eight (178) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Colvin.

Associate:

Dated: 11 October 2023