Case: Community and Public Sector Union v Telstra Corporation Ltd (2000) 99 IR 238
Outcome: referred to
I should interpolate to point out that in relation to the subsequent single judge decision in BHP Iron Ore following upon the Full Court's remitter of the proceedings to the trial judge, Kenny J of this Court decided in Australian Workers Union v BHP Iron Ore Pty Ltd [2001] FCA 3 ; (2001) 106 FCR 482, that '[ b ] efore s 298K(1) can apply , it must be possible to say of an employee that he or she is, individually speaking, in a worse situation after the employer's acts than before them; that the deterioration had been caused by those acts; and that the acts were intentional in the sense that the employer intended the deterioration to occur ' (see [54]). Upon that footing, the case foreshadowed by ANSTO was that Mr Lever '... has not established, or even alleged, that he ceased to be entitled to the benefits of an industrial instrument by reason of conduct of [ANSTO]', since '... there can have been no conduct of [ANSTO] that was for the reason prohibited by s 298L(1)(h)'. 23 Further as to the operation of s 298K(1), attention was drawn by ANSTO to Community and Public Sector Union v Telstra Corporation Ltd (2000) 99 IR 238, where at [19] Finkelstein J observed as follows: 'In the context of this legislation, there will not be a threat of proscribed conduct unless the employer communicates to his employee that proscribed action will be taken. One meaning of the word "threaten" is to menace or warn beforehand of an intention to inflict harm. That is the meaning that should be given to the word in s 298K.' That observation was adopted in National Union of Workers v Qenos Pty Ltd [2001] FCA 178 ; (2001) 108 FCR 90 at [119] (Weinberg J) and in Australian and International Pilots Association v Qantas Airways Ltd 160 IR 1 at [20] (Tracey J). 164 Mr Lever pleaded by his points of claim that Dr Doherty sent him two emails on 17 July 2003, '... the content of which was drafted with the intent of dissuading or preventing [Mr Lever] from pursuing any industrial proceeding in pursuance of a resolution of his classification dispute', that averment referring thereby to the foregoing emails I have set out above. Those emails were further pleaded by Mr Lever to constitute a threat by Dr Doherty for the purpose of dissuading or preventing him from pursuing any such industrial proceedings, and constituted therefore conduct in breach of pars (b), (c) and (e) of s 298K(1). It is difficult for Mr Lever to sustain reliance upon at least par (e), since that paragraph describes conduct of an employer by whom employment is offered, and not to an existing employee. As to operation relevantly of s 298L(2) by reason of any such alleged threat within s 298K(1), it is further difficult for Mr Lever relevantly to sustain the same, because neither email of Dr Doherty could reasonably be construed as constituting a threat to engage in conduct proscribed by s 298K(1). I was referred in that context once more to the meaning of threat described in dictum in Community and Public Sector Union , upon the footing that Dr Doherty's foregoing emails involved merely expressions of opinion and prediction, which I think to be correct, and which were ignored by Mr Lever in the events which subsequently happened. Accordingly I think that ANSTO's position so adopted was correct. For completeness I would add that Dr Doherty explained that his reasons for sending his foregoing emails was for the 'long term welfare' of Mr Lever. I do not think that Mr Lever's invocation made by par 52 of his points of claim, for the operation affirmatively in his favour of any one or more of pars (a), (h), (i), (j) and (n) of s 298L(1), has any sound or persuasive basis. 165 I should add for completeness in the present context that Mr Lever submitted that Dr Doherty's two emails of 28 September 2006, which I have already cited and partially extracted, '... could only have been sent as a veiled threat by Dr Doherty, in his capacity as an agent, employee and/or officer of [ANSTO] [in relation] to both his classification dispute with [ANSTO] and his active role as a union delegate and site president for the CPSU'. Mr Lever further submitted that 'Dr Doherty's denials in cross-examination were not persuasive', and described Dr Doherty's foregoing emails to Mr Lever as not 'personal missives' as Dr Doherty had testified, but rather were 'accurate reflections of the views and attitude of [ANSTO's] organisation more generally', and could '... only be seen as injurious to [Mr Lever's] position and ... clearly made for prohibited reasons'. Each of the foregoing descriptions or characterisations is not how I would seek to describe the content of the subject emails in the context in which the same were brought into existence, nor according to the text thereof in which the same were framed. Nor am I of the view that the present segment of Mr Lever's case is relevantly assisted or to be resolved in Mr Lever's favour on account of any operation of the so-called 'reverse onus' stipulated by s 298V, as Mr Lever also contended. I would characterise those contentious emails as pitched no higher than bona fide counsel and advice volunteered in nothing less than language of friendly as well as conciliatory farewell, and also of goodwill, expressed in the context of what was closure of the relationship personally between Dr Doherty and Mr Lever. 166 In reply, Mr Lever submitted that '[t]he threat was a generalised one ... to the effect that [Mr Lever's] continued actions would, in the words of Dr Doherty, "destroy your career prospects"', that being sufficient, so submitted by Mr Lever, 'to amount to prohibited conduct' pursuant to pars (b) and (c) of s 298K(1), especially in the light of s 298L(2). I would not so characterise Dr Doherty's foregoing emailed statements, given the entire context in which the same were made and framed, as having been such as to have invoked the statutory notion of threat. I would characterise those statements to have involved no more than attempted persuasions. 189 ANSTO added for completeness that the initiation of the investigation could not constitute a threat to and did not injure Mr Lever in his employment, nor did it alter Mr Lever's employment position to his prejudice, and hence contended that such initiation did not fall within pars (b) or (c) of s 298K(1). ANSTO pointed out that had the investigation 'implicated [Mr Lever] in misconduct and disciplinary action ensued against him, that would constitute an injury or alteration' within those respective paragraphs, but those stages of the investigation had not been reached. Moreover the initiation of the investigation was described by ANSTO as neither forbidden conduct nor a threat of forbidden conduct, since '[a]ny injury to [Mr Lever] in his employment or alteration of his position to his prejudice would have been a step subsequent to the investigation itself'. I was referred in that regard once more to Geraldton Port Authority, this time at [261], where R D Nicholson J observed as follows: 'I do not consider the conduct by the [Authority] in advising the second applicants and the MUA employees that they had been moved to irregular shift work ... could be characterised as action which "threatened" injury or prejudicial alteration. Rather, the injury and prejudicial alteration are the consequences of that action and accordingly I find no action was taken to threaten the relevant employees in that respect pursuant to s 298K(1).' The initiation of the investigation was further described by ANSTO as not constituting a communication to Mr Lever to the effect ' that proscribed action will be taken ', reference to dictum in Telstra being repeated. ANSTO emphasised in that regard that any '[s]uch action would depend on the outcome of the investigation'.