Case: BHP Iron Ore Pty Ltd v Australian Workers' Union [2000] FCA 430 ; (2000) 102 FCR 97
Outcome: referred to
Counsel for ANSTO drew attention to a number of authorities also relating to the relevant operation of the legislation. Specifically in relation to s 298K, in the context of BHP Iron Ore Pty Ltd v Australian Workers' Union [2000] FCA 430 ; (2000) 102 FCR 97 the Full Federal Court (Black CJ, Beaumont and Ryan JJ) at [35] said as follows: 'It has to be borne in mind, in construing s 298K, that it proscribes conduct by " an employer " directed to " an employee " or " other person " (emphasis added). That use of the singular suggests that the alleged injury or alteration of position has to be examined in the light of the circumstances of each individual employee. (It is not the point that in the interpretation of statutes, the singular ordinarily includes the plural; here we are concerned with the indications of legislative intention to be discerned from the actual language used.) It is also significant that the conduct struck at by each paragraph of s 298K is expressed by an active verb: "dismiss", "injure", "alter the position", "refuse to employ", and "discriminate". That implies that the proscription is essentially against an intentional act of the employer directed to an individual employee or prospective employee.' 22 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)'. 128 Addressing what Mr Lever's case categorised as the first series of breaches pleaded by Mr Lever's points of claim (which of course I have earlier outlined), ANSTO emphasised that Dr Doherty's 'promotion' decision reflected the feature that Mr Lever '... [did] not challenge Dr Doherty's discretion as [Mr Lever's] supervisor to determine whether, and to what extent, to promote [Mr Lever], or the procedure adopted by Dr Doherty in his exercise of that discretion', but rather '... relate[d] to the possibility of a review of Dr Doherty's determination'. ANSTO contended that for Mr Lever to assert the existence of any assurance as to his future promotion to SPO1 'was an overly optimistic and untenable interpretation of the words attributed to Dr Doherty', ANSTO describing the words attributed by Mr Lever to Dr Doherty as 'innocuous' and such as not to have 'preclude[d] [Mr Lever] from pursuing any available avenue for a review of his December 2000 promotion' to SPO2, yet which Mr Lever did not seek to do. Attention was drawn then by ANSTO specifically to what Mr Lever alleged to have constituted breach of s 298K(1)(b) and (c) on account of Dr Doherty's failure merely '... to inform [Mr Lever] of his rights to a review of Dr Doherty's decision', and to the irrelevance of Mr Lever's ignorance of the availability of review, if such ignorance had been in fact a reality. Attention was further drawn by ANSTO to the presence of the words ' do or threaten to do ' contained in each of the two subsections of s 298K, being words described by ANSTO as inapt to include any mere failure to do something, comprising as that statutory expression did the connotation of a proscription ' ... essentially against an intentional act of the employer directed to an individual employee or prospective employee ' (see again in that regard dicta earlier cited from BHP Iron Ore v AWU ). 129 On that footing, ANSTO's case was that Mr Lever '... has not established that any conduct of [ANSTO] caused him to miss an opportunity to seek a review of Dr Doherty's decision to promote him', and further that Mr Lever did not express any intention '... to seek a review at the time of the relevant discussions with Dr Doherty', nor did he establish 'that the conduct of [ANSTO] was the reason for his failure to seek such a review'. ANSTO emphasised that Mr Lever did not allege for instance that Dr Doherty 'took any direct action to prevent a review in the knowledge that [Mr Lever] was seeking one', nor was there evidence of any action to such effect. It could not be said therefore, so the ANSTO submission continued, that for instance 'Dr Doherty intended his conduct to frustrate a course of action proposed by [Mr Lever] of which Dr Doherty was ignorant'. There is clear force in that ANSTO response to the first series of breaches alleged by Mr Lever. 130 It was pointed out moreover by ANSTO that if a failure to seek a review did involve an injury to Mr Lever ' in his... employment ' or an alteration of his ' position ' to his ' prejudice ' within the meaning of pars (b) or (c) of s 298K(1), then any such failure was attributable in any event to '... the actions or inaction of [Mr Lever] subsequent to the conduct of Dr Doherty'. Since Mr Lever knew of the availability of review, so ANSTO maintained, '... it was his own decision to forbear from pursuing one'; and further that since Mr Lever had not proved the so-called 'forbidden conduct' the subject of present consideration, it was unnecessary for ANSTO to prove the reason for it. Moreover it was ANSTO's case that there was an absence of evidence as to Dr Doherty harbouring any prohibited reason, he being the person whose conduct was sought to be impugned and the only person whose reasons could be ultimately relevant.