The distinction between the exercise of a workplace right and the consequences of an employee exercising a workplace right that was at the heart of a decision of the Federal Court by a Full Bench in Construction Forestry Mining and Energy Union v Endeavour Coal Pty Ltd ([2015) FCAFC 76 delivered 3 June 2015.
The CFMEU took action for adverse action allegedly caused by a member exercising a workplace right by taking lawful sick and personal leave. The union’s complaint was that the employee was the victim of adverse action when his employer removed him from weekend shifts to weekday shifts. The majority of the Full Court agreed with the trial judge that the evidence showed that the motivation of the company was to manage the “lack of predictability” caused by the absences rather than the “character of the employee’s absences as personal leave”.
The CFMEU attempted unsuccessfully to distinguish the implications of Barclay’s Case (2012) HCA 32 and the BHP Coal Case (2014) HCA 42 by arguing that unlike those cases the situation in this case “involved a situation where the permissible reason was constituted by the same facts as the forbidden reason”. The majority of the Full Bench thus held that the test which applies in these cases is what actually motivated the employer’s conduct rather than what the employee did and thus rejected the union’s attempt to argue that irrespective of what motivated the employer in this case, the action was unlawful because the employee suffered adverse action for taking lawful leave.
One cannot but have considerable sympathy for this argument for in this case of course the employee suffered adverse action for doing precisely what he was entitled to do, namely exercise a workplace right to take lawful leave.
The potential injustice of the approach required by the High Court in Barclay and BHP Coal was not lost on the dissenting member of the Full Bench, Justice Bromberg who said “the intended protection of workers from adverse action would be largely illusory if the substance, content or effect of that right produced when the right is put into practice provides an innocent reason for the taking of adverse action”.
If subjective motivation rather than the content or effect of particular conduct could never provide the basis for a prohibited reason, Justice Bromberg said, it would be difficult to determine “what feature of the exercise of a workplace right would provide a basis”.
Justice Bromberg said that in drafting the Fair Work Act, the Parliament must have intended protection to “extend beyond prohibiting the conduct of the fringe ideologue not concerned with a workplace right being held by another but only with the mere fact of its exercise”.
In my view he has hit the nail on the head; the Fair Work Act is like a mad woman’s breakfast. It is full of ridiculous concepts and effect. The right vested in employers to require general protections cases to be taken to the Federal Court, where I am advised the minimum legal cost for an applicant is around $85,000 is absurd. The high income threshold as a bar against being protected against unfair dismissal is another. Thanks a lot Ms Gillard and Mr Rudd.