mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Greater Dandenong City Council v Australian Municipal, Administrative, Clerical and Services Union [2001] FCA 349 ; (2001) 112 FCR 232 
Outcome: discussed
Tracey J usefully summarised the authorities as to the former s 298K in Australian and International Pilots Association v Qantas Airways Ltd [2006] FCA 1441 , (2006) 160 IR 1 at [13] [22]. "Injury" is concerned with an adverse effect upon an existing legal right, or "compensable" injury. Prejudicial alteration of position goes beyond that concept. There are many examples in the cases. It is sufficient to refer to Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (No 3) [1998] HCA 30 ; (1998) 195 CLR 1 per Brennan CJ, McHugh, Gummow, Kirby and Hayne JJ at [37] and [38]; Community and Public Sector Union v Telstra Corp Ltd [2001] FCA 267 ; 107 FCR 93 at [17] [22]; Greater Dandenong City Council v Australian Municipal, Administrative, Clerical and Services Union [2001] FCA 349 ; (2001) 112 FCR 232 ; and Commonwealth Bank of Australia v Finance Sector Union of Australia [2007] FCAFC 18 ; 157 FCR 329. 33 So far as s 793(1)(i) is concerned, the affected employees were, or are, entitled to the benefit of the Certified Agreement in common with all production employees. There is no discrimination between employees in that respect. There is no suggestion that persons with the benefit of the Certified Agreement were being discriminated against as compared with people who did not have the benefit of that Agreement. The fact that the employer was, or may have been, advantaged by not dismissing particular employees because of the way in which cl 21.5 worked, is not pertinent to this statutory obligation. The content and effect of an agreement may not always be irrelevant for example, if the way a particular clause operates is related to some relevant form of discrimination. The decision of the Full Court in Greater Dandenong City Council [2001] FCA 349 ; 112 FCR 232 may provide an example of that, although it is a difficult decision as Branson J said in CSL Australia Pty Ltd [2002] FCA 513 , 113 IR 326 at [54] , it is not easy to derive a ratio decidendi. The decision in Commonwealth Bank of Australia v Finance Sector Union of Australia [2007] FCAFC 18 ; 157 FCR 329 may be another. In each case, the employer had work to be done by those employed pursuant to an industrial instrument. The proposed change meant that the work would be done by those who were willing to take alternative employment pursuant to different industrial instruments or perhaps no industrial instrument. That is not the case here.
Case: Hunt v Railway Commissioners (NSW); Ex parte Brown-Smith [1928] AR (NSW) 151 
Outcome: cited
Another instance may be provided by what was said by Street J in Hunt v Railway Commissioners (NSW); Ex parte Brown-Smith [1928] AR (NSW) 151 at 154 (albeit dealing with a differently framed section): "and the dismissal must, I think, be a dismissal by an employer really as a matter of victimisation, or the capricious use of his power to dismiss in order, to retaliate upon the employee for his having dared to assert a claim to rights under the award." In dealing with that section, Evatt J in Grayndler v Cunich [1939] HCA 32 ; (1939) 62 CLR 573 said at 595: "we are not investigating a case where a business or department is being closed down, but a case where an employer has determined (1) that the enterprise as a whole shall be conducted entirely upon conditions of private bargaining which are less favourable to employees than award conditions, and also (2) that every employee who qualifies himself to obtain the better award conditions shall immediately be dismissed. This is one of the obvious cases which sec. 9 was designed to cover." This case is not analogous to those examples.
Case: Klanjscek v Silver (1961) 4 FLR 182 
Outcome: cited
Early in the history of these provisions it was established that they could not be used to restrict genuine business decisions by an employer, notwithstanding that the objective of the provisions then was the protection of unions and collective action ( Connington v Municipality of Kogarah [1913] AR (NSW) 40 at 44; Grayndler v Broun [1928] AR (NSW) 46 at 49; Klanjscek v Silver (1961) 4 FLR 182 at 187; Moss v Fantil Pty Ltd t/as Central Coast Security Services (1994) 58 IR 118 at 127). The underlying principle is that a decision that may affect an employee or a class of employee does not discriminate against or victimise that employee or those employees if it is taken for a sound business reason. This principle has been applied in various situations in more recent times in considering a prohibited reason within the meaning of s 793 and similar provisions. Examples include Qenos Pty Ltd [2001] FCA 178 ; 108 FCR 90 at [119] [126]; Australian Collieries' Staff Association v BHP Coal Pty Ltd [2000] FCA 318 ; (2000) 99 FCR 137 , particularly at [66] [67]; CSL Australia Pty Ltd [2002] FCA 513 , 113 IR 326, particularly at [55] [60]; BHP Iron Ore Pty Ltd v Australian Workers' Union [2000] FCA 430 ; 102 FCR 97 at [48] ; and Geraldton Port Authority [1999] FCA 899 ; 93 FCR 34 , particularly at [294] [302].
Case: Maritime Union of Australia v Geraldton Port Authority [1999] FCA 899 ; (1999) 93 FCR 34 
Outcome: discussed
The decision in Maritime Union of Australia v Geraldton Port Authority [1999] FCA 899 ; (1999) 93 FCR 34 is a good illustration of where the dividing line might be drawn. Cases on the non-contravening side of the line include Burnie Port Corp Pty Ltd v Maritime Union of Australia [2000] FCA 1768 ; (2000) 104 FCR 440 and Australian Workers' Union v BHP Iron-Ore Pty Ltd [2001] FCA 3 ; 106 FCR 482. A case with some similarities to the present is National Union of Workers v Qenos Pty Ltd [2001] FCA 178 ; (2001) 108 FCR 90. It dealt with a situation where there was a surplus of employees for genuine business reasons. A "spill and fill" selection and retrenchment process was held not to be capable of giving rise to an injury to any particular employee in his or her employment and could not be said to have altered the position of any individual employee to his or her prejudice. (See also Australian and International Pilots Association v Qantas Airways Ltd [2006] FCA 1441 , (2006) 160 IR 1 at [29] and [31].) 35 Early in the history of these provisions it was established that they could not be used to restrict genuine business decisions by an employer, notwithstanding that the objective of the provisions then was the protection of unions and collective action ( Connington v Municipality of Kogarah [1913] AR (NSW) 40 at 44; Grayndler v Broun [1928] AR (NSW) 46 at 49; Klanjscek v Silver (1961) 4 FLR 182 at 187; Moss v Fantil Pty Ltd t/as Central Coast Security Services (1994) 58 IR 118 at 127). The underlying principle is that a decision that may affect an employee or a class of employee does not discriminate against or victimise that employee or those employees if it is taken for a sound business reason. This principle has been applied in various situations in more recent times in considering a prohibited reason within the meaning of s 793 and similar provisions. Examples include Qenos Pty Ltd [2001] FCA 178 ; 108 FCR 90 at [119] [126]; Australian Collieries' Staff Association v BHP Coal Pty Ltd [2000] FCA 318 ; (2000) 99 FCR 137 , particularly at [66] [67]; CSL Australia Pty Ltd [2002] FCA 513 , 113 IR 326, particularly at [55] [60]; BHP Iron Ore Pty Ltd v Australian Workers' Union [2000] FCA 430 ; 102 FCR 97 at [48] ; and Geraldton Port Authority [1999] FCA 899 ; 93 FCR 34 , particularly at [294] [302].
Case: Martech International Pty Ltd v Energy World Corp Ltd [2007] FCAFC 35
Outcome: cited
There may be circumstances where the conduct of the employer towards an employee is such that the employee, upon leaving, can assert that he or she has been constructively dismissed, triggering whatever rights the employee may have upon dismissal ( Westen v Union des Assurances de Paris (1996) 88 IR 259 at 261; Brackenridge v Toyota Motor Corporation Australia Ltd (1996) 142 ALR 99 at 106; in the case of position redundancy see Commonwealth Bank of Australia v Finance Sector Union of Australia [2002] FCAFC 193 ; (2002) 125 FCR 9 at [27] ; cf Martech International Pty Ltd v Energy World Corp Ltd [2007] FCAFC 35 at [19] ). In the present case, that may have included a claim pursuant to cl 21.5. That case could have been pursued by or on behalf of these employees. That course was adopted in Finance Sector Union of Australia v Commonwealth Bank of Australia [2001] FCA 1613 , (2001) 111 IR 241 (although set aside in the result on appeal Commonwealth Bank of Australia v Finance Sector Union of Australia [2002] FCAFC 193 ; 125 FCR 9). Rather, the choice was made here to seek to use the freedom of association provisions to, in effect, act as a means of specific enforcement of cl 21.5.
Case: Moss v Fantil Pty Ltd t/as Central Coast Security Services (1994) 58 IR 118 
Outcome: cited
Early in the history of these provisions it was established that they could not be used to restrict genuine business decisions by an employer, notwithstanding that the objective of the provisions then was the protection of unions and collective action ( Connington v Municipality of Kogarah [1913] AR (NSW) 40 at 44; Grayndler v Broun [1928] AR (NSW) 46 at 49; Klanjscek v Silver (1961) 4 FLR 182 at 187; Moss v Fantil Pty Ltd t/as Central Coast Security Services (1994) 58 IR 118 at 127). The underlying principle is that a decision that may affect an employee or a class of employee does not discriminate against or victimise that employee or those employees if it is taken for a sound business reason. This principle has been applied in various situations in more recent times in considering a prohibited reason within the meaning of s 793 and similar provisions. Examples include Qenos Pty Ltd [2001] FCA 178 ; 108 FCR 90 at [119] [126]; Australian Collieries' Staff Association v BHP Coal Pty Ltd [2000] FCA 318 ; (2000) 99 FCR 137 , particularly at [66] [67]; CSL Australia Pty Ltd [2002] FCA 513 , 113 IR 326, particularly at [55] [60]; BHP Iron Ore Pty Ltd v Australian Workers' Union [2000] FCA 430 ; 102 FCR 97 at [48] ; and Geraldton Port Authority [1999] FCA 899 ; 93 FCR 34 , particularly at [294] [302].
Case: National Union of Workers v Qenos Pty Ltd [2001] FCA 178 ; (2001) 108 FCR 90 
Outcome: followed
The decision in Maritime Union of Australia v Geraldton Port Authority [1999] FCA 899 ; (1999) 93 FCR 34 is a good illustration of where the dividing line might be drawn. Cases on the non-contravening side of the line include Burnie Port Corp Pty Ltd v Maritime Union of Australia [2000] FCA 1768 ; (2000) 104 FCR 440 and Australian Workers' Union v BHP Iron-Ore Pty Ltd [2001] FCA 3 ; 106 FCR 482. A case with some similarities to the present is National Union of Workers v Qenos Pty Ltd [2001] FCA 178 ; (2001) 108 FCR 90. It dealt with a situation where there was a surplus of employees for genuine business reasons. A "spill and fill" selection and retrenchment process was held not to be capable of giving rise to an injury to any particular employee in his or her employment and could not be said to have altered the position of any individual employee to his or her prejudice. (See also Australian and International Pilots Association v Qantas Airways Ltd [2006] FCA 1441 , (2006) 160 IR 1 at [29] and [31].) 35 Early in the history of these provisions it was established that they could not be used to restrict genuine business decisions by an employer, notwithstanding that the objective of the provisions then was the protection of unions and collective action ( Connington v Municipality of Kogarah [1913] AR (NSW) 40 at 44; Grayndler v Broun [1928] AR (NSW) 46 at 49; Klanjscek v Silver (1961) 4 FLR 182 at 187; Moss v Fantil Pty Ltd t/as Central Coast Security Services (1994) 58 IR 118 at 127). The underlying principle is that a decision that may affect an employee or a class of employee does not discriminate against or victimise that employee or those employees if it is taken for a sound business reason. This principle has been applied in various situations in more recent times in considering a prohibited reason within the meaning of s 793 and similar provisions. Examples include Qenos Pty Ltd [2001] FCA 178 ; 108 FCR 90 at [119] [126]; Australian Collieries' Staff Association v BHP Coal Pty Ltd [2000] FCA 318 ; (2000) 99 FCR 137 , particularly at [66] [67]; CSL Australia Pty Ltd [2002] FCA 513 , 113 IR 326, particularly at [55] [60]; BHP Iron Ore Pty Ltd v Australian Workers' Union [2000] FCA 430 ; 102 FCR 97 at [48] ; and Geraldton Port Authority [1999] FCA 899 ; 93 FCR 34 , particularly at [294] [302].
Case: Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (No 3) [1998] HCA 30 ; (1998) 195 CLR 1
Outcome: referred to
Tracey J usefully summarised the authorities as to the former s 298K in Australian and International Pilots Association v Qantas Airways Ltd [2006] FCA 1441 , (2006) 160 IR 1 at [13] [22]. "Injury" is concerned with an adverse effect upon an existing legal right, or "compensable" injury. Prejudicial alteration of position goes beyond that concept. There are many examples in the cases. It is sufficient to refer to Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (No 3) [1998] HCA 30 ; (1998) 195 CLR 1 per Brennan CJ, McHugh, Gummow, Kirby and Hayne JJ at [37] and [38]; Community and Public Sector Union v Telstra Corp Ltd [2001] FCA 267 ; 107 FCR 93 at [17] [22]; Greater Dandenong City Council v Australian Municipal, Administrative, Clerical and Services Union [2001] FCA 349 ; (2001) 112 FCR 232 ; and Commonwealth Bank of Australia v Finance Sector Union of Australia [2007] FCAFC 18 ; 157 FCR 329.
Case: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 29 ; (1998) 194 CLR 355
Outcome: cited
There is no causal link between any injury or alteration of position which might be found to have been incurred and the alleged prohibited reason in this case. On one view, s 809 has no work to do in those circumstances (cf CSL Australia Pty Ltd [2002] FCA 513 , 113 IR 326 at [56] [60]). In any event, the evidence that was led for Tristar is inconsistent with the existence of any particular reason or intent connected with s 793(1)(i) notwithstanding that I accept that the length of service of the employees was a factor taken into account in not dismissing them because of the size of the severance payment which would have to be made. As I have endeavoured to show, that does not establish that any conduct of Tristar was for a prohibited reason. The manner in which the particular clause in the Certified Agreement worked out in practice does not fall within s 793(1)(i) as construed in the context of the rest of s 793(1), the rest of Pt 16 and the objects and structure of the Act as a whole ( Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 29 ; (1998) 194 CLR 355).
Case: Squires v Flight Stewards Assn of Australia (1982) 2 IR 155
Outcome: cited
There is a respectable argument that an employee cannot be indefinitely denied work to do if work of an appropriate kind is available ( Blackadder v Ramsey Butchering Services Pty Ltd [2005] HCA 22 ; (2005) 221 CLR 539 , particularly per Callinan and Heydon JJ at [80]; Squires v Flight Stewards Assn of Australia (1982) 2 IR 155 at 164; Downe v Sydney West Area Health Service (No 2) [2008] NSWSC 159 at [410] [431]). No such appropriate work was available here.
Case: Westen v Union des Assurances de Paris (1996) 88 IR 259
Outcome: cited
There may be circumstances where the conduct of the employer towards an employee is such that the employee, upon leaving, can assert that he or she has been constructively dismissed, triggering whatever rights the employee may have upon dismissal ( Westen v Union des Assurances de Paris (1996) 88 IR 259 at 261; Brackenridge v Toyota Motor Corporation Australia Ltd (1996) 142 ALR 99 at 106; in the case of position redundancy see Commonwealth Bank of Australia v Finance Sector Union of Australia [2002] FCAFC 193 ; (2002) 125 FCR 9 at [27] ; cf Martech International Pty Ltd v Energy World Corp Ltd [2007] FCAFC 35 at [19] ). In the present case, that may have included a claim pursuant to cl 21.5. That case could have been pursued by or on behalf of these employees. That course was adopted in Finance Sector Union of Australia v Commonwealth Bank of Australia [2001] FCA 1613 , (2001) 111 IR 241 (although set aside in the result on appeal Commonwealth Bank of Australia v Finance Sector Union of Australia [2002] FCAFC 193 ; 125 FCR 9). Rather, the choice was made here to seek to use the freedom of association provisions to, in effect, act as a means of specific enforcement of cl 21.5.
Case: Minister for Local Government v South Sydney City Council [2002] NSWCA 288 ; 55 NSWLR 381
Outcome: cited
In the ordinary case, an opportunity should be given to a person affected by a decision to deal with adverse information that is credible, relevant and significant to the decision to be made. While procedural fairness does not normally require the decision maker to disclose his or her thinking processes or proposed conclusions, it may be that an adverse conclusion of a type that could not reasonably be expected by a person affected by a decision ought to be brought to that person's attention, as a matter of fairness ( Minister for Local Government v South Sydney City Council [2002] NSWCA 288 ; 55 NSWLR 381 at [260] and [261]).
Case: Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd 127 ALR 699
Outcome: cited
Where the requirements for procedural fairness apply, a person likely to be affected by the decision is entitled to put information and submissions to the decision maker in support of an outcome that supports that person's interests. That entitlement extends to the right to rebut or qualify, by further information and comment, adverse material from other sources that are put before the decision maker. The decision maker is required to identify to the person affected any issue critical to the decision that is not apparent from its nature or the terms of the statute under which it is made. The decision maker must advise of any adverse conclusion that has been arrived at that would not obviously be open on the known material. On the other hand, a decision maker is not obliged to expose his or her mental processes or provisional views for comment by an affected person before making the decision in question ( Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd 127 ALR 699 at pp 714-715).
Case: VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72 ; 225 CLR 88
Outcome: cited
The content to be given to an obligation to accord procedural fairness must accommodate the particular provisions made in the enactment that regulates how the decision maker is to go about the task of decision making. The application of principles of procedural fairness in a particular case must always be moulded to the particular circumstances of that case ( Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72 ; 225 CLR 88 at [10] and [25]).
Case: South Australia v Slipper [2004] FCAFC 164 ; 136 FCR 259
Outcome: cited
When a statute confers a power on a public official, the exercise of which affects a person's rights, interests or expectations, that power must be exercised in accordance with the rules of procedural fairness unless the rules are excluded by express terms or by necessary implication. A legislative intention to exclude the rules will not be assumed or spelt out from indirect references, uncertain inferences or equivocal considerations. In particular, such an intention should not be inferred merely from the presence in the relevant statute of rights that are commensurate with some of the rules of procedural fairness. The rules may be excluded because the power in question is, of its nature, one that is to be exercised in circumstances of urgency or emergency. However, urgency will not of itself exclude the right to procedural fairness, although it may, in particular circumstances, reduce the content of the right to procedural fairness ( South Australia v Slipper [2004] FCAFC 164 ; 136 FCR 259 at [93] ). 55 The requirement for procedural fairness does not require a decision maker to disclose what the decision maker is minded to decide, so that parties affected may have a further opportunity of criticising the mental processes of the decision maker before a final decision is reached. A decision maker is generally not obliged to invite comment on the evaluation of the subject's case. On the other hand, procedural fairness requires that a party affected by a decision be given the opportunity of ascertaining the relevant issues and to be informed of the nature and content of adverse material. Thus, the subject of a decision is entitled to have his or her mind directed to the critical issues or factors on which the decision is likely to turn in order to have an opportunity of dealing with it and is entitled to respond to any adverse conclusion drawn by the decision maker on material supplied by or known to the subject that is not an obvious and natural evaluation of that material.
Case: Salemi v Mackellar No 2 [1977] HCA 26 ; 137 CLR 396
Outcome: cited
An executive or administrative decision of a kind that affects a person as a member of the public or a class of the public may properly be characterised as a " policy " or " political " decision. In such a case, there will be no entitlement to procedural fairness in relation to the making of the decision vested in a member of the public or a member of a class of the public affected by the decision ( Salemi v Mackellar No 2 [1977] HCA 26 ; 137 CLR 396 at 452). A minister is not bound to hear an individual before formulating or applying a general policy or exercising a discretion in a particular case by reference to the interests of the general public, even where the decision affects an individual's interests. A minister may determine general policy or the interests of the general public free of procedural constraints. A minister will be confined only by the limits otherwise expressed or implied by statute ( South Australia v O'Shea [1987] HCA 39 ; 163 CLR 378 at 411).
Case: South Australia v O'Shea [1987] HCA 39 ; 163 CLR 378
Outcome: cited
An executive or administrative decision of a kind that affects a person as a member of the public or a class of the public may properly be characterised as a " policy " or " political " decision. In such a case, there will be no entitlement to procedural fairness in relation to the making of the decision vested in a member of the public or a member of a class of the public affected by the decision ( Salemi v Mackellar No 2 [1977] HCA 26 ; 137 CLR 396 at 452). A minister is not bound to hear an individual before formulating or applying a general policy or exercising a discretion in a particular case by reference to the interests of the general public, even where the decision affects an individual's interests. A minister may determine general policy or the interests of the general public free of procedural constraints. A minister will be confined only by the limits otherwise expressed or implied by statute ( South Australia v O'Shea [1987] HCA 39 ; 163 CLR 378 at 411).