This address on Trend Indicators in FWA Legislation, presented here in four separate posts, was given by Jeffrey Phillips SC of Denman Chambers at the Fair Work Summit, May 2010.
Beyond Fair Work Australia, the Federal Court is also considering new provisions of the Act and in this regard see the case of Jones ats Queensland Tertiary Admissions Centre Limited (No.2)  FCA 399 (delivered 29 April 2010) in relation to an adverse action claim.
Justice Collier of the Federal Court of Australia, sitting at Brisbane, had earlier issued interlocutory orders restraining QTAC from taking any action against the Applicant, Ms Jones until the hearing of the substantive Application filed in these proceedings. See Jones at Queensland Tertiary Admissions Centre Limited (2009) FCA 1382, and also the comment published on this website on the 3 December 2009.
After having heard the substantive application, Justice Collier dismissed Ms Jones’ application. Ms Jones, who was the Chief Executive Officer of QTAC, had been the subject of serious bullying allegations by individual employees of QTAC and the Australian Services Union (“ASU”) . Ms Jones had claimed that the ASU had orchestrated a campaign against her, relevant to her conduct in the 2009 enterprise bargaining negotiations as spokesperson for QTAC. Further, that in taking adverse action against her, it was alleged that QTAC had yielded and continues to yield to this campaign by the ASU, in contravention of the Fair Work Act 2009. Ms Jones had sought many orders in her application, amongst which was that her employer not act upon any investigation report received concerning her alleged behaviour. Rejecting all these claims, Justice Collier said,
 Further, I consider that QTAC’s actions were in no way related to any workplace rights of Ms Jones. I consider that Ms Jones’ role as bargaining representative, and her participation in enterprise agreement negotiations, were completely irrelevant to QTAC’s reasons for the actions it took.
 It follows from this consideration that Ms Jones has not substantiated her claims against QTAC pursuant to s 340 of the Act.
In dealing whether there was any claim, Justice Collier made the following observations,
 It was common ground between the parties that Ms Jones bears the onus of proving she has a workplace right under the Act. However, once an employee has established that he or she has a workplace right, and has been the subject of adverse action by the employer, the onus of proof shifts to the employer in respect to the reason for the adverse action by the employer. At this point the onus is on the employer to demonstrate that the adverse action taken against the employee was not for a reason prohibited by the Act.
 That the employee is required to first prove the existence of objective facts which are said to provide a basis for the alleged adverse action before the onus shifts to the employer in respect of the prohibited reason was explained by Branson J in Construction, Forestry, Mining and Energy Union against Coal & Allied Operations Pty Limited (1999) 140 IR 131 at  – . …….. It is not sufficient for Ms Jones to simply allege that she has a workplace right and that she has been the subject of adverse action – rather on the assumption that Ms Jones is able to prove these allegations, the burden is then cast on QTAC to prove that adverse action was not taken against Ms Jones because of her workplace rights for the purposes of s 340 and s 361 of the Act.
In order to determine for what reason adverse action may have been taken against an employee , it is relevant to consider the subjective reason or reasons for the taking of the impugned action by the employer, and if the employer is a corporation, of its directors . Despite what was found in General Motors Holden Pty Limited v Bowling (1976) 12 ALR 605, even if all the directors who made the decision are not called, there can be sufficient evidence accepted of the motivation of the board of directors in acting as it did . Her Honour found that the only reasons motivating the key directors of QTAC in taking adverse action against Ms Jones, was a concern for the organisation, that Ms Jones had been mistreating staff members, a belief that it was essential that action be taken by QTAC to investigate such allegations, and a wish to ensure that any investigation be conducted with proper procedure, including Ms Jones being given a reasonable opportunity to present her side of the story . Her Honour also dismissed allegations that there had been a breach of contract and a failure to provide natural justice to Ms Jones.
Adverse action claims such as this under the Fair Work Act, will very much depend upon the finding of facts made by the trial judge and are a more problematic alternative remedy compared to bringing unfair dismissal proceedings before Fair Work Australia. If one’s advisers believe that an adverse action claim under the Fair Work Act is arguable in the Federal Court using the Court’s accrued jurisdiction one might also consider pleading the economic torts of conspiracy, interference with contractual relations or intimidation ( see Latham v Singleton (  2 NSWLR) 843 per Nagle CJ at CL )
If one turns to one other aspect of Fair Work Australia’s provisions, it is all not going the way of the workers in unfair dismissal cases. Recent decisions to that effect include Nick Kolodjashnij ats Lion Nathan t/as J Boag & Sons Brewing Pty Limited  FWABFB 3258 (3 May 2010) in which a Fair Work Australia Full Bench rejected an employee’s argument that his sacking was for breaching brewer, Lion Nathan’s “responsible drinking” policy was disproportionate.
In a similar drinking case, Fair Work Australia’s Deputy President McCarthy upheld the dismissal of an employee who failed a breath test just three (3) days before the wind up of a major offshore project that would have triggered the entitlement to a large redundancy payout: Doug Smith ats BHP Billiton Petroleum Pty Limited  FWA 3349 (28 April 2010). The Deputy President upheld the company’s policy on the basis that not to do so would have compromised the safety policies which countered any suggestion that the dismissal in the circumstances was harsh and unconscionable.
Another case which suggests that it is all not going the workers’ or the unions’ way in Fair Work Australia, is Ulan Coalmines Limited ats Henry John Howarth & Ors  FWAFB 3488. In this case Ulan Coalmines successfully challenged the single FWA member’s ruling that ten (10) workers dismissed last year during a restructure were not genuinely made redundant. The challenge to the dismissals was that they were not genuine redundancies as defined by s 389 of the Fair Work Act. The Full Bench overturned Commissioner Raffaelli’s decision on the basis that he failed to draw “an appropriate distinction in his reasoning between the jobs of mineworkers who were retrenched and the functions performed by those mine workers.” Further, he was mistaken in failing to take into proper account the nature of the restructure of the mine and the fact that it led to an overall reduction in the number of non-trade jobs.
Although it has recognisable antecedents, FWA is still in its infancy. New provisions are being considered by single members and ultimately given authoritative interpretation by its Full Bench. I have referred to a couple of these cases.
However, Fair Work Australia does have a very good website, which it updates regularly. One can read it for free without necessarily having to be a subscriber to some of the legal and IR commentaries. I am not criticising such services. They are very good, such as the Fair Work portal on Thomson Reuters’ web site and also the email commentary called “Workplace Express”. By keeping up to date with these developments and being conscious of the very technical nature of many of the applications which come before Fair Work Australia, you will be in a better position to be able to navigate successfully such requirements which surround participation in this new tribunal.