had acted in breach of the Hail Creek Agreement 201132 by (a) their failure to pay Mr Haylett's wages, (b) discriminating against him due to his physical disability in breach of s351 of the Act and importantly, (c) by taking 'adverse action' against him because of his exercise of four distinct 'workplace rights' (one of which included his right to pursue workers' compensation). The CFMEU prosecuted the adverse action claim first, stating that if they succeeded with that claim, they would not pursue the other claims. Hail Creek Coal conceded that standing down Mr Haylett in November 2013 and ceasing to pay him from March 2014 constituted 'adverse action'. However, a key issue was whether Hail Creek Coal could prove that the adverse action was not taken because of the workplace right. Mr Priestly was the Hail Creek Coal mine manager and decision maker responsible for the status of Mr Haylett's employment, so he was called to give evidence and defend Hail Creek Coal's position that Mr Haylett's employment had been terminated for safety concerns only. As the Federal Court in the Hail Creek case noted, the role of the decision maker is "critical in the determination of this proceeding"33 and hence Justice Reeves watched Mr Priestly closely when he gave evidence. His Honour had several difficulties with Mr Priestly's evidence, and found that Mr Priestly was generally unsatisfactory as a witness: he was evasive, maintained irrational positions in the face of cogent material to the contrary, was unconvincing in his attempts to explain references to return to work in documentation, and had little knowledge of the relevant legislation. In considering whether Mr Priestly had demonstrated that the adverse action was not for the prohibited reason His Honour stated that, He did not know Mr Haylett, and he did not know what work Mr Haylett was performing at the Hail Creek Coal mine. In particular, he said he did not know that, for the past three years, Mr Haylett had been working safely as a drill rig operator at the mine without any reported difficulties despite the fact his prior injury meant that his progress was generally monitored by Hail Creek Coal's injury management team ‌ Mr Priestly did not ask anyone about Mr Haylett's work activities before making his decision to stand him down, purportedly for safety reasons.34 DEFENDING GENERAL PROTECTIONS CLAIMS So, what lessons can practitioners take from the Hail Creek case? Whilst the reverse onus was not the sole hurdle Hail
Creek Coal had to overcome in defending the claim made by the CFMEU, there are some critical steps to consider when defending general protections claims and discharging the reverse onus of proof. A suggested practical approach may include some or all of the following: 1. Consider if it is a 'workplace right' that is being asserted in accordance with the Act (noting its wide reach). 2. Consider if the 'adverse action' alleged by the employee is protected by the Act. 3. Consider other possible jurisdictional objections such as time limits (21 days for general protections claims).35 4. Identify all witnesses close to, or involved in, the alleged 'adverse action'. Test their evidence. 5. Isolate the decision maker or, if there is more than one, all the decision makers. If the latter, extrapolate their different roles and the actions they took (or perhaps did not take) and all the reasons for this. Test all their evidence both orally and against the relevant documentary material. 6. Remember that the Court is interested in getting into the mind of the decision maker or makers to understand their subjective point of view. Extricating this from the decision maker is crucial in preparing the employer's evidence. 7. Examine the causal connection between the 'adverse action' and the 'workplace right'. In other words, probe the witnesses carefully on this point, keeping in mind the BRIT v Barclay decision discussed above. 8. Clearly, the decision maker must be called to give evidence. As the High Court observed in BRIT v Barclay "‌ it will be extremely difficult to displace the statutory presumption in s361 if no direct testimony is given by the decision-maker acting on behalf of the employer."36 9. What if more than one decision maker is involved? One should examine the evidence of all the decision makers and then call all relevant decision makers to give evidence. In the case of National Tertiary Education Union (NTEU) v Royal Melbourne Institute of Technology37, the NTEU were successful on behalf of their member because four people were actively involved in the decision making process, but evidence was only called from one of those involved. However, there may be circumstances where, if a decision maker merely confers with others, failing to call those with whom the decision maker has conferred is not necessarily fatal: see Construction, Forestry, Mining and
Energy Union v Anglo Coal (Dawson Services) Pty Ltd.38 CONCLUSIONS There is no doubt that the reverse onus of proof in a general protections claim imposes a challenging legal environment for the employer. In these types of claims, the judicial spotlight will focus acutely on the decision maker and the reasons for their actions. Their 'story' will be critical to the outcome for the employer. Their narrative must be both persuasive and compelling to be the "knock-down argument"39 necessary to ensure a successful outcome. NOTES 1.
David is Director and Rosemary and Celeste are Solicitors at Heldsinger Legal, a specialist workplace relations law firm.
2.
Lewis Carroll, Alice's Adventures in Wonderland and Through the Looking Glass: Bloomsbury Publishing, London, 2001, p.297.
3.
Dodgson was a polymath with interests in writing, literature, mathematics, semantics and photography. He was also a logician and Anglican Deacon.
4.
Construction, Forestry, Mining and Energy Union v Hail Creek Coal Pty Ltd [2016] FCA 1032.
5.
ibid.
6.
In this article, we use the phrase 'reverse onus of proof' which commonly refers to the express presumption in s361 of the Act that an employer took 'adverse action' against an employee by reason of their exercise of a 'workplace right'.
7.
Note that this article deals only with claims by employees against employers.
8.
Fair Work Act 2009 (Cth) s341(1).
9.
Fair Work Act 2009 (Cth) s342.
10.
Fair Work Act 2009 (Cth) s360.
11.
Fair Work Act 2009 (Cth) s361.
12.
Explanatory Memorandum to the Fair Work Bill 2008 at para 1360.
13.
ibid., at paras 1363-1369.
14.
Fair Work Commission Annual Report 2014-15, p.61.
15.
Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32 at para 62 per French CJ and Crennan J, at para 104 per Gummow and Hayne JJ, and at para 140 per Heydon J.
16.
ibid., at paras 7-22.
17.
Barclay v The Board of Bendigo Regional Institute of Technical and Further Education [2010] FCA 284 at para 23.
18.
ibid., at paras 23-24.
19.
ibid., at para 34.
20.
ibid.
21.
ibid.
22.
Barclay v Board of Bendigo Regional Institute of Technical and Further Education [2011] FCAFC 14 (Lander, Gray and Bromberg JJ, Lander J dissenting).
23.
ibid., at para 28.
24.
ibid., at para 25.
25.
ibid., at para 28.
26.
ibid.
27.
Refer Note 15, at para 42.
28.
ibid., at para 43.
29.
ibid., at para 127.
30.
Construction, Forestry, Mining and Energy Union v Hail Creek Coal Pty Ltd [2016] FCA 199.
31.
Ibid., at para 3.
32.
Hail Creek Agreement 2011, clauses 7.1 and 7.6.
33.
Refer Note 29, at para 25.
34.
ibid., at para 38.
35.
Fair Work Act 2009 (Cth) ss366 and 377.
36.
Refer Note 15, at para 45.
37.
[2013] FCA 451.
38.
[2015] FCAFC 157.
39.
Lewis Carroll, Alice's Adventures in Wonderland and Through the Looking Glass: Bloomsbury Publishing, London, 2001, p.297.
43