35.
give an example: in reaching the conclusions I have reached on this appeal I have taken the CFMEU's submissions into account and they have formed an important element in my decision-making processes. However, as will be apparent, the fact that I have had regard to them does not entail that they may therefore be described as constituting a part of my subjective reasons for decision. Of course, if by reason one means 'cause' then one gets a different result. On that view of things, [the employee's] prior record was causally connected to the decision to transfer him to a different shift. That approach to the identification of the reason in question is prevented, however, by CFMEU v BHP. The inquiry thrown up by s 340 is not one concerned with causation but, rather, the subjective reasons for action of the decision-maker."
For similar reasons it is not enough that there may be a "connection" between the taking of adverse action, and, for example, protected industrial activity. As French CJ and Kiefel J said in BHP Coal[1]:
"Section 346 does not direct a court to inquire whether the adverse action can be characterised as connected with the industrial activities which are protected by the Act. It requires a determination of fact as to the reasons which motivated the person who took the adverse action."
The foregoing observation applies equally to s 340 of the FWA.
Identifying the actual or operative reason for taking adverse action will also require one to identify the decision-maker or decision-makers. That is again a question of fact. In this matter, it was accepted that the decision-maker was Mr Andrew David, Chief Executive Officer of Qantas Domestic and International. Where a company takes adverse action, the decision-makers will usually be those who represent its directing mind, and, ordinarily, that will be the company's board of directors[2] or, where applicable, the board's authorised delegate or delegates and agent or agents. In every case, if the presumption mandated by s 361 is to be displaced, what is required is a determination of the actual or authentic reason or reasons for taking adverse action by the real decision-maker or decision-makers.
The distinction between the actual or operative reason for taking adverse action and factors contributing to the causes for adverse action explains the principle that s 340 does not inhibit an employer from taking adverse action for a
- ↑ (2014) 253 CLR 243 at 252 [19].
- ↑ Federal Commissioner of Taxation v Whitfords Beach Pty Ltd (1982) 150 CLR 355 at 370 per Gibbs CJ. See also, by way of example, Australian Workers' Union v John Holland Pty Ltd (2001) 103 IR 205 and Maritime Union of Australia v CSL Australia Pty Ltd (2002) 113 IR 326.
