Case: BHP Iron-Ore Pty Ltd v Australian Workers' Union &amp; Ors [2000] FCA 430 ; (2000) 102 FCR 97
Outcome: cited
Reliance is also placed on the judgment of the Full Court of the Federal Court in BHP Iron-Ore Pty Ltd v Australian Workers' Union &amp; Ors [2000] FCA 430 ; (2000) 102 FCR 97. In so doing, the respondents press their contention that some element of discriminatory conduct must be demonstrated (as an additional element of the section), not merely conduct coupled with an allegation of a prohibited reason, there must be some evidence consistent with the discriminatory hypothesis and the conduct must be intentional conduct directed to 'an employee' or 'other person'. 346 At pg 108, their Honours Black CJ, Beaumont and Ryan JJ made this observation: '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" . 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.' 348 There can be no doubt that s 298K(1) addresses, consistent with the Full Court's observations in BHP Iron-Ore Pty Ltd v Australian Workers' Union &amp; Ors (supra), bilateral conduct between an employer and an employee or an employer and another person. That simply means however that the circumstances of the conduct (dismissal, injury, alternation of position, refusal to employ or discrimination in terms and conditions of that offer of employment), affecting each individual must be examined to determine whether the conduct was undertaken for a prohibited reason. If the expression of the conduct involves a group of affected individuals, the circumstances of each individual within the group must be examined. The broader the group, the less likely as a matter of logic and probability that individuals within it are the subject of prohibited reasons for the conduct. A group of individuals will generally exhibit a unifying characteristic that defines the boundaries of the group and it may well be that that characteristic provides an explanation of the reason for the conduct affecting the group. Nevertheless, individuals within the group, upon examination, may on a bilateral basis, be the subject of conduct for a reason prohibited by the Act, as alleged. In other words, the dismissal of 50 employees would not provide an answer to a contravention of s 298K(1)(a) if 12 of those 50 were dismissed because they elected to take up membership of a union, act as a delegate, express dissatisfaction with conditions of employment supported by the union, or secured an order of the AIRC to address constructive dismissal in harsh and unjust circumstances. The question is always what was the conduct of the employer qua the employee, in the circumstances ? In many cases, where a broader group or class is the subject of the conduct, the employer will be in a position, and uniquely so, to demonstrate persuasively that the circumstances affecting the group reflect a level of abstraction that removes qua any member, a circumstance constituting a prohibited reason. Although the section requires an analysis of the bilateral circumstances between the employer and the individual, conduct applying to a group does not, by that circumstance alone , extinguish any operation for the section. Justice Kenny put the notion slightly differently but to the same effect when her Honour said in Australian Workers' Union and Others v BHP Iron-Ore Pty Ltd [2001] FCA 3 at [53] upon remitter from the Full Court: 'Section 298K(1) is, upon this view, concerned with the conduct of an employer that is directed to an individual employee. This does not mean that in dismissing one employee who is a union member for a prohibited reason, an employer commits a civil wrong, and that wrong is not committed if, for the same reason, the employer dismisses all employees who are union members. The Full Court was directing its attention to the nature of the injury contemplated by the provision. That is, the conduct in question must injure an employee individually in the sense that it would have injured him or her, regardless of whether it was actually done to an individual employee or a group of employees . The relevant inquiry is whether an employer has, by the employers conduct, injured the position of an employee individually. The Full Court must have intended to exclude conduct that injured individuals only when directed to a class of employees. 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.' (emphasis added)