Transport Workers' Union of Australia v Coles Supermarkets Australia Pty Ltd

The Transport Workers' Union of Australia (TWU) brought proceedings against Coles Supermarkets Australia Pty Ltd (Coles) in the Federal Court of Australia. The dispute concerned allegations that Coles had engaged in adverse action against a TWU delegate, Mr. Michael Kaine, by terminating his employment. The TWU contended that this adverse action was taken because Mr. Kaine had exercised his rights as a union delegate and had engaged in protected industrial activity.

The central legal issue before the Court was whether Coles had taken adverse action against Mr. Kaine, within the meaning of section 340(1) of the *Fair Work Act 2009* (Cth), for a prohibited reason under section 340(1)(a) or (b). Specifically, the Court had to determine if Coles' decision to terminate Mr. Kaine's employment was substantially motivated by his union activities or his intention to engage in protected industrial action.

Judge Driver found that the TWU had not discharged its onus of proving that Coles' decision to terminate Mr. Kaine's employment was substantially motivated by a prohibited reason. The Court accepted Coles' evidence that the decision was based on Mr. Kaine's alleged serious misconduct, including breaches of company policy and a failure to follow lawful and reasonable directions. The Court applied the principles of statutory interpretation relevant to adverse action provisions, emphasising the need for the prohibited reason to be a substantial and operative cause of the employer's conduct.

The application by the Transport Workers' Union of Australia was dismissed.