Steward J
36.
legitimate commercial reason, even when the cost of employment has been a factor in the decision-making process. As Finkelstein J observed in Greater Dandenong City Council v Australian Municipal, Administrative, Clerical and Services Union[1]:
"[T]o decide whether an employee has been unlawfully dismissed, it is necessary to ascertain the true motive for, or purpose of, the dismissal. If there is some legitimate reason for the dismissal, such as the desire to avoid bankruptcy or the need to maintain a profitable operation, the dismissal will be lawful. It matters not that the cause of the impending bankruptcy or the unprofitable trading is the high rate of wages payable under an award or certified agreement. That is to say, although the benefits produced by an award or certified agreement have caused the problem which the employer seeks to address, that does not necessarily make those benefits the 'reason' or motive for his act."
The foregoing followed from the distinction between an operative reason and a participating cause, described earlier. Finkelstein J usefully explained that distinction in the following way[2]:
"[T]here has been an unbroken line of State and federal authority in favour of the proposition that, for the purpose of deciding whether there has been an unlawful dismissal for the reason that an employee is entitled to the benefit of an award or certified agreement, it is necessary to draw a distinction between the 'reason' or motive behind the dismissal and what produced that motive."
The foregoing is also consistent with the "balance" struck by the FWA between the interests of employers and the interests of employees "of which Alfred Deakin spoke as being necessary for an effective conciliation and arbitration system"[3]. That same balance can be seen in the first listed "object" of the FWA, which (as presently framed) provides[4]:
"The object of this Act is to provide a balanced framework for cooperative and productive workplace relations that promotes national economic prosperity and social inclusion for all Australians by:
