Case: Maritime Union of Australia v CSL Australia Pty Ltd [2002] FCA 513 , (2002) 113 IR 326
Outcome: cited
In short, whatever the employees suffered by way of psychological distress was not caused by any act of Tristar. Rather, the choice they made to continue in employment was the operative reason for the prejudice ( Maritime Union of Australia v CSL Australia Pty Ltd [2002] FCA 513 , (2002) 113 IR 326 at [53] and [54]). In my opinion, none of these employees was injured, nor was the position of any of them prejudicially altered by any act of the employer as required by s 792. 32 Even if the necessary injury or alteration of position had been established, a sole or dominant prohibited reason has not been established (s 792(4)). The selection of employees for retrenchment had no scintilla of connection with freedom of association. All employees covered by the Certified Agreement had the benefit of that agreement without discrimination between them. There is no suggestion that selection for retrenchment was made for any reason associated with union membership or non-membership, or union activity or non-activity, or because these employees were covered by the Certified Agreement and other potential persons affected were covered by some other agreement. There is simply no basis for suggestion of discrimination or victimisation in any relevant respect. The employees the subject of this proceeding are only a proportion of the workforce as it stood in 2006. 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. 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]. 36 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).