A persuasive dissenting judgment in the Full Federal Court has made further High Court consideration of the adverse action principles likely. This has the potential to result in a narrowing of the effect of some of the employer-friendly aspects of the High Court decision in Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd  HCA 41 (BHP).
Alan McDermott, a maintenance fitter at Endeavour Coal’s West Cliff Colliery, was absent from work for 29.5 days between December 2007 and September 2010 on various forms of personal/carer’s leave. Almost all of these absences were in accordance with his entitlement to personal/carer’s leave under the applicable enterprise agreement. Despite this, in September 2010 he was moved from the ‘weekend day shift’ roster to the ordinary Monday to Friday roster (September adverse action).
In November 2010, Mr McDermott was returned to the weekend roster after signing an agreement regulating his use of personal/carer’s leave going forward, including a requirement that he provide a medical certificate on each future occasion.
In March 2011, Mr McDermott was again absent from work, and failed to provide a medical certificate. In April 2011, he was issued with a final written warning with respect to absenteeism, and again moved to the Monday-Friday roster (collectively, April adverse action).
The CFMEU then brought proceedings on his behalf under the general protection provisions in Part 3-1 of the Fair Work Act 2009 (Cth) (FW Act), arguing that Mr McDermott had been subjected to adverse action on the basis of his exercise of a workplace right (section 340(1)(a)(ii)).
DECISION AT FIRST INSTANCE
Judge Cameron in the Federal Circuit Court ruled that Endeavour had not contravened the general protections provisions.
His Honour accepted the evidence of the (then) Engineering Manager that he had moved Mr McDermott from the weekend shift in September 2010 because Mr McDermott’s absences meant that his attendance was unpredictable, rather than because he had exercised a right to take personal/carer’s leave.
With respect to the April adverse action, His Honour held that Mr McDermott’s uncertified absence in March 2011 was not the exercise of a workplace right because Mr McDermott had failed to comply with the applicable enterprise agreement and section 107(3) the FW Act by not providing a medical certificate as required by Endeavour.
His Honour also accepted a successor Engineering Manager’s evidence that he had removed Mr McDermott from the weekend shift in April 2011 and issued him with a final written warning because he had been absent from work and failed to provide a certificate as required, and because this absence coincided with a rejected request for annual leave. He further accepted the Engineering Manager’s evidence that Mr McDermott’s previous absences on personal/carer’s leave were not a reason for the April adverse action.
The CFMEU appealed this decision to the Full Court of the Federal Court of Australia.
DECISION OF THE FULL FEDERAL COURT
Each of the three members of the Full Court handed down a separate opinion. A majority comprised of Justices Jessup and Perram dismissed the appeal. Justice Bromberg strongly dissented, and his opinion gives rise to a distinct possibility that the courts will be found to have gone too far when considering adverse action that has a temporal connection with industrial activity or the exercise of a workplace right.
Opinion of Justice Jessup
Justice Jessup found that the circumstances in this case could not be distinguished from the High Court majority reasoning in BHP and the earlier decision of Board of Bendigo Regional Institute of TAFE v Barclay  HCA 32 (Barclay).
In reaching this conclusion, his Honour summarised the joint opinion of Chief Justice French and Justice Kiefel in the BHP decision, and the separate reasoning of Gageler J in the same case, in terms of two propositions:
[the reasons] “reveal a distinction between the act done which is said to have amounted to participation in an industrial activity, on the one hand, and the thinking of the decision-maker with respect to that act, on the other hand;” and
“what was necessary was that the actual reason of the decision-maker, in his or her own mind, be the employee’s participation in industrial activity” (or other prohibited reason).
Here, the primary judge had been satisfied that the fact that Mr McDermott’s absences constituted personal/carer’s leave played no operative part in the Engineering Manager’s decision to move him from the weekend shift in September 2010. The September adverse action was taken because his absences on personal/carer’s leave made his attendance at work unpredictable to an unacceptable degree, rather than because he had taken personal/carer’s leave per se.
With respect to the April adverse action, Justice Jessup considered that it was open to the primary judge to find that Mr McDermott’s prior absences on personal/carer’s leave were not a reason for the warning or shift change, notwithstanding evidence that the prior absences were drawn to the Engineering Manager’s attention.
His Honour also determined that the reverse onus of proof did not require Endeavour “entirely to dissociate the adverse action taken by [the Engineering Manager] from those earlier absences”.
Opinion of Justice Perram
Justice Perram expressed some sympathy for the CFMEU’s argument that the BHP decision did not apply where “the circumstances from which management’s motivations have been formed inevitably result from the exercise of a workplace right even if the employer’s motives do not explicitly concern workplace rights”. However, he considered that acceptance of that line of reasoning was precluded by the decisions in BHP and Barclay.
His Honour further found that on the basis of the decisions in those cases, the issue to be determined was essentially a factual one, namely: which of the potential characterisations of the behaviour was the actual motive of the decision-maker. In that regard, he found no error in the primary judge’s finding that the reason for the September adverse action was Mr McDermott’s unreliable attendance record, rather than his exercise of his right to take personal/carer’s leave.
With respect to the April adverse action, Justice Perram also found no error in the primary judge’s finding that Mr McDermott’s prior attendance history was not a reason for the warning or further shift change.
Dissenting judgment of Justice Bromberg
Justice Bromberg found that the primary judge’s finding that the September adverse action was not taken because Mr McDermott had exercised his right to take personal/carer’s leave (because the Engineering Manager had been motivated by the fact and effect of the absences, rather than the character of those absences as personal/carer’s leave) was not consistent with Barclay or BHP.
His Honour reasoned that Barclay and the joint opinion of Chief Justice French and Justice Kiefel in BHP stood for the propositions that:
a temporal connection between adverse action and engagement in a protected activity was not sufficient to attract the protection of Part 3-1 of the FW Act (although that connection may necessitate some consideration as to the true motivation of the decision-maker); and
the “requisite connection is between reason and protected activity, and not merely adverse action and protected activity”.
Justice Bromberg further suggested that Justice Gageler in BHP may have gone beyond these principles when he suggested that ‘the requisite connection is not merely between reason and protected activity but between reason and the character of the protected activity’. In the present case, Justice Bromberg distinguished the September adverse action from the conduct which was at issue in BHP and Barclay. In both of those cases it had been found that, despite a temporal connection between adverse action and a protected activity, the protected activity was not a reason for the adverse action.
In the present case the primary judge had accepted that the September adverse action had been motivated by Mr McDermott’s absences on personal/carer’s leave. Justice Bromberg reasoned that this would necessarily have an effect on an employer’s workplace, and that Parliament presumably intended that that effect should not be regarded as an acceptable reason for subjecting an employee to adverse action. His Honour went on to caution that “to treat the exercise of a workplace right as devoid of its substance, content, or effect involves a restricted construction of s 340(1)(a)(ii) which, in my view, is not supported by the text of that provision nor the discernible Parliamentary intent which it content reveals”. Justice Bromberg also found that “motivation by the practical effect of the exercise of a workplace right, in the knowledge that the effect is created by the exercise of a workplace right, is also capable of constituting a prohibited reason”. He concluded that Endeavour had not established that Mr McDermott’s exercise of his right to take personal/carer’s leave was not a reason for the September adverse action.
With respect to the April adverse action, Justice Bromberg found that the decision-maker’s express admission in cross-examination that Mr McDermott’s previous absences had been “part of the reason” for the shift change, and a lack of evidence that the absences were not a substantial and operative reason, made the primary judge’s finding that the prior absences formed no part of the decision to take the adverse action glaringly improbable.
IMPLICATIONS FOR EMPLOYERS
Earlier in July the CFMEU sought special leave from the High Court of Australia to appeal against the decision of the majority in this case. It is not clear when that application will be determined. If leave is granted, there is a real possibility that the High Court would uphold Justice Bromberg’s dissenting opinion in whole or in part.
In the meantime, the differences of opinion between the members of the Full Court of the Federal Court is likely to embolden unions to continue to test the boundaries of the general protection provisions, in particular where there is a temporal connection between adverse action and a protected attribute.
The on-going prospect of court challenges to managerial decision-making in reliance on the general protections provisions serves as a timely reminder for employers of the importance of ensuring that the reasons for any form of adverse action (including dismissal and performance management) are carefully documented and tested for lawfulness, and that decision-makers are clearly identified, particularly where the potentially prohibited reason arises from the same facts as the right that has been exercised by the employee.
 CFMEU v Endeavour Coal Pty Ltd  FCCA 473 (27 June 2013).
 CFMEU v Endeavour Coal Pty Ltd  FCAFC 76 (3 June 2015), .
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