The Board of Bendigo Regional Institute of Technical and Further Education v Barclay & Anor

[2011] HCATrans 243

[2011] HCATrans 243

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M18 of 2011

B e t w e e n -

THE BOARD OF BENDIGO REGIONAL INSTITUTE OF TECHNICAL AND FURTHER EDUCATION

Applicant

and

GREGORY PAUL BARCLAY

First Respondent

AUSTRALIAN EDUCATION UNION

Second Respondent

Application for special leave to appeal

GUMMOW J
HAYNE J
BELL J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 2 SEPTEMBER 2011, AT 9.31 AM

Copyright in the High Court of Australia

MR J.L. BOURKE, SC:   If the Court pleases, I appear with MR P.M. O’GRADY for the applicant.  (instructed by Lander & Rogers Lawyers)

MR C. GUNST, QC:   If the Court pleases, I appear with my learned friend, MR M.A. IRVING, on behalf of the respondents.  (instructed by Holding Redlich)

GUMMOW J:   Yes, Mr Bourke.

MR BOURKE: If the Court pleases, the central special leave question in this case is this. Is the test whether a person has taken adverse action for a prescribed reason under Part 3-1 of the Fair Work Act 2009 (Cth) an objective or subjective test? The division in approach is this. The majority view in the case was that it is an objective test with an objective characterisation of a person’s reason of which the subjective intent may be centrally relevant, but not decisive. The respondents rely on discrimination cases as to the meaning of “because” in support of that argument. Our position is the test is subjective ‑ ‑ ‑

GUMMOW J:   Where do we see the actual statutory provision?

MR BOURKE:   If the Court pleases, if one goes to tab 7 of our folder ‑ ‑ ‑

GUMMOW J:   Is it set out in the reasons?  It is set out on pages 7 and 8, is it?

MR BOURKE:   Correct, and the critical section is 346 on page 8, line 32:

A person must not take adverse action against another person because –

and the debate is the meaning of “because”, whether that invokes an objective or a subjective test of the other person, and then (a) is in respect of being a union officer, (b) is in respect of union activity, and in relation to this case, the relevant parts of section 347 were invoked, (b)(iii) terms of lawful union activity or advancing the claims of the industrial association.  We say that it has been ‑ ‑ ‑

HAYNE J:   We cannot understand 346 divorced from the operation of 361(1), can we, as reproduced at page 9.

MR BOURKE:   We say that 360 and 361 are critical.  Section 361, which is in effect a reverse onus section, distinguishes the line of authority in relation to the discrimination cases because section 361, in our submission, has been put there because what was required of a complainant was to prove a subjective intent and because of the inherent difficulty of proving the state of mind of a person you accuse to be the wrongdoer, there was a presumption created which, as a practical effect, required the alleged wrongdoer to give evidence and discharge the presumption that they were not motivated by a prescribed reason.

That occurred in this case.  The decision‑maker, Dr Harvey, gave evidence that she was not motivated by any prescribed reason.  She was in fact motivated by an innocent reason.  That evidence was accepted unequivocally by the trial judge.  That finding was not challenged on appeal, it was not disturbed on appeal, but the employer lost the case.  In our submission, the majority approach which had adopted an objective approach, so even where there was an unequivocal finding of no wrongful subjective intent, the employer failed, was the first time in the history of these provisions – because they have had a long history, going back to 1904 with the Conciliation and Arbitration Act, where there has been a reverse onus always in place in relation to these type of “freedom of association” provisions ‑ ‑ ‑

GUMMOW J:   What is the significance of General Motors?

MR BOURKE:   General Motors, the High Court in 1976 had to deal with a similar provision concerning a job delegate.  Similar to this case, there was protection from discrimination against someone because they were a job delegate, and the question for the Court was, was the person dismissed because they had a poor attitude or were they dismissed because they were a job delegate and they might be troublesome, and the High Court said “You did not call the decision‑maker to discharge the onus that you were motivated by their poor work attitude, not motivated by them being a delegate in dismissing ‑ ‑ ‑

HAYNE J:   That mode of analysing what is decided in GMH, all the section seems to regard the relevant search as being a singular search, this notion of “the real reason”, whereas I would have thought the section makes quite plain that reasons may be mixed.

MR BOURKE: In our submission, section 346 is open to interpret “because” as subjective or objective, but we point to the role of section 361, the reverse onus provision, which is ‑ ‑ ‑

HAYNE J:   Section 360 makes plain that reasons may be mixed, I think, does it not?

MR BOURKE:   Section 360 says that you may have a number of reasons, but if you have a prohibited reason, you lose, and we say the prohibited

reason is the subjective intent of the decision‑maker or the actor, and that has been the consistent approach of this authority for these provisions for over 100 years.  We had this Court in Pearce in 1917, Bowling in 1976 and the majority also ignored the approach of the unanimous decision of the Full Federal Court in Harrison in 2009.  We cannot find any industrial case which has dealt with these “freedom of association” provisions where a finding ‑ where there has been a finding of an innocent subjective intent, but the employer has lost.  The majority broke new ground in doing this.

GUMMOW J:   I think we will hear from Mr Gunst at this stage.

MR BOURKE:   If the Court pleases.

MR GUNST: Thank you, your Honours. Your Honours, the essential question in this case is whether a subjective intention to discriminate is a necessary element of the cause of action under section 346 of the Fair Work Act.  There is no authority for that proposition and it is contrary, in our submission, to a substantial body of authority concerned with earlier incarnations of this legislation and similar anti-discrimination legislation.

GUMMOW J:   The question for us is whether there looks to be a special leave point, I suppose.  There is a division of opinion in the Full Court.

MR GUNST:   That is so, your Honour, yes.

BELL J:   On the view favoured by the majority, the applicant says how could it have successfully defended the proceedings in light of the unchallenged findings by the trial judge.

MR GUNST:   It could have successfully defended the proceeding if it had been able to lead evidence that it had taken the adverse action against the employee for some non‑prohibited reason.

HAYNE J:   That is to adopt this approach of saying that the search is for “the real reason”.  Is that right?

MR GUNST:   Yes, that is right, your Honour.

HAYNE J:   Two points are to be made about that.  First, is it an accurate replication of what Mr Justice Mason said in Bowling?  It seems to shear the proposition from its preface in the circumstances of this case, et cetera.

MR GUNST:   I would point out to your Honour that what Justice Mason said that is relied upon by our learned friends was in fact dicta in Bowling.  The relevant decision-makers, the board of directors for the company that had dismissed the employee, did not give evidence and what his Honour went on to say was if they had given evidence, then certain things might have followed.  If we go back to Pearce ‑ ‑ ‑

HAYNE J:   Before you do that, does that mean that you support or not support what the majority in the Full Court said at paragraph 32, page 43?

MR GUNST:   Yes, we do, your Honour.

HAYNE J:   Which is a search for “the real reason”.

MR GUNST:   Yes.  There may be a mix of reasons, as your Honour Justice Hayne rightly said.  Section 360 of this Act presupposes, or clearly indicates, that that is so.  But the employee will win, so long as the prohibited reason was a reason for the adverse action, so long as the reason was a non‑trivial one, that is.

Your Honour, I said that there is a substantial body of authority.  We can go as far back as 1917 to the case our learned friends have drawn to your Honours’ attention, Pearce v W D Peacock, where Acting Chief Justice Barton said quite clearly, in a case under the earlier incarnation of this legislation, the Conciliation and Arbitration Act 1904 (Cth), one pays little or no regard to the professed mental state of the decision-maker, as his Honour says, one looks at it but pays, as his Honour said, little or no regard – that is of the professed mental state.

To suggest that Justice Mason’s dicta in Bowling stands for the proposition that in this legislation the words “because of” require the establishment of a subjective intention is, in our submission, so plainly wrong that special leave is not warranted.

GUMMOW J:   The majority in the Full Court seem to have, as your opponent says, relied upon discrimination decisions to some extent.

MR GUNST:   Yes, that is so, and one of the ones we lay particular emphasis ‑ ‑ ‑

GUMMOW J:   Did you do so?

MR GUNST:   Yes, we do.  One of the particular judgments we laid emphasis on in the Full Court, and we lay emphasis on in our submissions today, is your Honours Justice Gummow and Justice Hayne’s judgment together with Justice Heydon in Purvis v State of New South Wales.  That was a discrimination case, as your Honours will recall, and at paragraph 236 – it is in our book of materials – of your Honour’s joint judgment, your Honours in essence – it is dangerous to paraphrase – treated

the words “by reason of”, “because of”, and similar cognate expressions as interchangeable. 

Now, in the end, one has to come back to the words of this particular statute and the words of this particular section. The section is section 346, and the words are “because of”. This was an Act that was introduced two years ago. It is the Fair Work Act 2009 (Cth). These sections came into force on 1 July 2009.

In the knowledge of all of the other anti‑discrimination legislation, both Commonwealth and State, and in the knowledge of the jurisprudence, not leaving till last your Honours’ judgment in Purvis v State of New South Wales, the suggestion that is made necessarily presupposes that Parliament chose the words “because of” in the knowledge of what those words had been interpreted to mean in other Commonwealth legislation, but intended them to have a narrower meaning, intended them not to have the meaning of an objective search for the real true reason, or to determine whether the mix of reasons included a prohibited reason, objectively speaking, but that Parliament intended when it chose the phrase “because of” in this legislation two years ago to adopt a different and much narrower meaning.  In our submission, that cannot sensibly be contended, and the matter does not warrant special leave.

GUMMOW J:   Thank you.  We do not need to hear you in reply, Mr Bourke.  There will be a grant of special leave in this matter.  We think it is probably a one‑day case.  Does counsel concur in that?

MR GUNST:   We agree, your Honour.

MR BOURKE:   Yes, your Honour.

GUMMOW J:   The other point we want to emphasise is the need to strictly observe the timetable requirements for the presentation of submissions to the Full Court.  I am not directing this personally to you, but there has been some general slippage and it is time to tighten up, so the Registrar will be particularly unfriendly if there are last‑minute requests for extensions of time in presentation of submissions.  All right then, there will be a grant of special leave and that will be a one-day appeal.

MR GUNST:   If the Court pleases.

MR BOURKE:   If the Court pleases.

AT 9.46 AM THE MATTER WAS CONCLUDED