The complicated world of adverse action

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The Federal Court has upheld an adverse action claim (and fined the company) for refusing to employ a former union official in part because of his history and thus accepted that the company had breached s.346(a) of the Fair Work Act which prohibits the taking of adverse action because the person had engaged in industrial activity in that he had represented or advanced the views, claims and interests of an industrial association (see s. 346(b)(v).
The judge rejected an argument by the prospective employer that it could not be found to have refused to employ the prospective employee since at the material time there were no job vacancies available(see item 2 s.242(1).
“As a result, it was submitted, the vacancy into which Mr Lee might have been employed had not crystallised, and Mr Mackin’s decision could not, therefore, be characterised as a refusal to employ. I accept neither the submission nor the factual premise on which it was based. Mr Sharp’s request that Mr Lee be employed was for the shutdown, and did not relate merely to the initial week. The shutdown was more than a proposal: it was a planned operation, albeit that some co-operation was, apparently, required from the Union if work were to commence on 6 January. The period of Mr Sharp’s representations to Mr Mackin coincided with the timing of such consideration as, it may be inferred, WGPSN was giving to the engagement of labour for the shutdown.
It was also submitted on behalf of WGPSN that, since Mr Lee had not made “a proper application for employment through the iRecruitment portal”, there could have been no refusal to employ him. I would not accept that submission. That he had not made such an application may well have been a reason why WGPSN did not employ him – although I do not find that it was – but it was irrelevant to the question whether Mr Mackin’s decision, in late November 2013, not to employ Mr Lee amounted to a refusal. In my opinion, it did.
For those reasons, I accept the applicants’ case that WGPSN, relevantly a prospective employer, refused to employ Mr Lee, relevantly a prospective employee, thereby taking adverse action against him within the meaning of s.342(1) of the FW Act.”

The court also rejected an argument by the company to the effect that it could not be held to have refused to employer the person because he had formerly engaged in industrial activity since the real reason for the company’s decision was that the hiring of the person as an employee would have offended one of its clients.

“In my view, Mr Mackin’s refusal to employ Mr Lee because of the presumed opposition of Esso to that course was a refusal for the reason that he imputed to Esso. This is not to “transfer” Esso’s reason to WGPSN: indeed, there was no evidence of what Esso in fact thought about the matter at all. Rather, his reasons were his own, not Esso’s. What he did, entirely within his own thinking, was to assume that Esso would be opposed, and why it would be opposed. Wanting to co-ordinate WGPSN’s actions with what he assumed Esso would want, he decided that Mr Lee should not be employed. He did so, I would find, because Mr Lee had been Esso’s adversary in an industrial relations setting; that is, as I have held above (ie removing the metaphor), because Mr Lee had been an organiser for the Union and had acted as such in representing the views, claims and interests of the Union.
For the reasons I have given, I reject WGPSN’s argument that Mr Mackin’s concern about Mr Lee’s former adversarial position makes no contribution to the applicants’ case under s.346 because it was a concern about Esso’s assumed thinking rather than a reflection of WGPSN’s own position. It follows, and I find, that WGPSN took adverse action against Mr Lee for reasons which included the reason that he had been an organiser for the Union and had acted as such in representing the views, claims and interests of the Union. That would be enough to establish WGPSN’s liability under s.346: see FW Act, s.360.”

And finally the Court rejected the prospective employee’s claim for compensation because, although one of the reasons for the refusal to employee him was unlawful, the company would not have employed him even without the unlawful motivation because he would not have been given preference over the pool of applicants on the employment waiting list.

“Absent any unlawful element in his decision not to employ Mr Lee at Longford, for Mr Mackin to have decided the matter otherwise than he did would have been, in my view, highly unlikely. To have taken on Mr Lee, in preference to someone in the casual pool, only to be required to meet the cost of training him to the point of having all the required MRCs is a course, I would find, that WGPSN would have been most unlikely to follow.
For those reasons, Mr Lee’s claim for compensation must be rejected.”

Australian Workers’ Union v CBI Constructors Pty Ltd (2016) FCA 745 delivered 24 June 2016 per Jessup J.