Case: Australian Workers' Union v BHP Iron-Ore Pty Ltd [2001] FCA 3 ; (2001) 106 FCR 482
Outcome: followed
A "before and after" test is usually applied to see whether there has been any injury to, or prejudicial alteration of, the position of the employee by reason of any act of the employer (eg per Evatt J in Blair v Australian Motor Industries Ltd (1982) 61 FLR 283 at 289, 3 IR 176; per Branson J in Commonwealth Bank of Australia v Finance Sector Union of Australia [2007] FCAFC 18 ; (2007) 157 FCR 329 at [127] ). Applying what had been said by the Full Court in an earlier interlocutory appeal ( BHP Iron Ore Pty Ltd v Australian Workers' Union [2000] FCA 430 ; (2000) 102 FCR 97 at [35] ), it was succinctly put by Kenny J in Australian Workers' Union v BHP Iron-Ore Pty Ltd [2001] FCA 3 ; (2001) 106 FCR 482 at [54] as follows: "Before 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 has been caused by those acts; and that the acts were intentional in the sense that the employer intended the deterioration to occur." The clarification of that approach by the Full Court in Community and Public Sector Union v Telstra Corp Ltd [2001] FCA 267 ; (2001) 107 FCR 93 at [21] does not detract from it for present purposes. The same questions must be asked. Here, there should be a negative answer to each limb. 25 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. 26 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].) 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.