Australian Red Cross Society v Queensland Nurses' Union of Employees [2019] FCAFC 215

FEDERAL COURT OF AUSTRALIA

Australian Red Cross Society v Queensland Nurses' Union of Employees [2019] FCAFC 215 Appeal from: Queensland Nurses' Union of Employees v Australian Red Cross Society & Ors [2018] FCCA 3471 Queensland Nurses Union of Employees v Australian Red Cross Society & Ors [2019] FCCA 706

File number: QUD 934 of 2018

Judges: GREENWOOD, BESANKO AND RANGIAH JJ

Date of judgment: 3 December 2019

Catchwords: INDUSTRIAL LAW — appeal from orders made by a judge of the Federal Circuit Court of Australia — where an employee of the first appellant engaged in protected industrial action — where the primary judge found that the first appellant took adverse action in contravention of s 340(1)(a) of the Fair Work Act 2009 (Cth) and that the second and third appellants were involved in those contraventions — where primary judge made orders with respect to compensation and pecuniary penalties INDUSTRIAL LAW — where primary judge found that each appellant had knowledge that the employee had engaged in protected industrial action — whether knowledge is a pre-condition to the engagement of the presumption in s 361 of the Act — consideration of the elements to be established in order to engage s 361 of the Act — whether the primary judge considered all of the evidence relevant to knowledge — whether this Court can assess and weigh the relevant evidence — whether it is appropriate in the circumstances to order a retrial

Legislation: Conciliation and Arbitration Act 1904 (Cth) s 5 Fair Work Act 2009 (Cth) ss 340, 360, 361, 550, 793

Cases cited: Australian Building and Construction Commissioner v Hall [2018] FCAFC 83; (2018) 261 FCR 347 Australian Building and Construction Commissioner v Hall [2017] FCA 274; (2017) 269 IR 28 Board of Bendigo Regional Institute of Technical and Further Education v Barclay (No 1) [2012] HCA 32; (2012) 248 CLR 500 Celand v Skycity Adelaide Pty Ltd [2017] FCAFC 222; (2017) 256 FCR 306 Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2017] FCAFC 50 Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2015] FCAFC 25; (2015) 230 FCR 298 Construction, Forestry, Mining and Energy Union v Clermont Coal Pty Ltd [2015] FCA 1014; (2015) 253 IR 166 Elliott v Kodak Australasia Pty Ltd [2001] FCA 1804; (2001) 129 IR 251 Expectation Pty Ltd v PRD Realty Pty Ltd [2004] FCAFC 189; (2004) 140 FCR 17 General Motors-Holden's Pty Ltd v Bowling (1976) 51 ALJR 235 Port Kembla Coal Terminal Ltd v Construction, Forestry, Mining and Energy Union [2016] FCAFC 99; (2016) 248 FCR 18 Tattsbet Ltd v Morrow [2015] FCAFC 62; (2015) 233 FCR 46

Date of hearing: 16 May 2019

Registry: Queensland

Division: Fair Work Division

National Practice Area: Employment & Industrial Relations

Category: Catchwords

Number of paragraphs: 99

Counsel for the Appellants: Mr Y Shariff with Ms V Bulut

Solicitor for the Appellants: Lander & Rogers

Counsel for the Respondent: Mr R Reed

Solicitor for the Respondent: Mr K Crank, Queensland Nurses' Union of Employees

ORDERS QUD 934 of 2018

BETWEEN: AUSTRALIAN RED CROSS SOCIETY First Appellant

RHIANNON FEALY Second Appellant

LISA MCILROY Third Appellant

AND: QUEENSLAND NURSES' UNION OF EMPLOYEES Respondent

JUDGES: GREENWOOD, BESANKO AND RANGIAH JJ DATE OF ORDER: 3 December 2019

THE COURT ORDERS THAT:

1. The appellants file and serve within seven days draft minutes of order reflecting the conclusions in these reasons and if they seek limits on the remitter to another judge, written submissions limited to four pages in support of such limitations. 2. The respondent file and serve within 14 days such written submissions limited to four pages as it may wish to make directed to the appellants' draft minutes of order and limits on the terms of the remitter. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT:

Introduction 1 This is an appeal by the Australian Red Cross Society (Red Cross), Ms Rhiannon Fealy and Ms Lisa McIlroy against orders made by a judge of the Federal Circuit Court on 17 December 2018 and on 29 January 2019. We will refer to these parties as the Red Cross parties when referring to them as a group. The respondent to the appeal is the Queensland Nurses' Union of Employees (the Union). 2 The Union brought proceedings under the Fair Work Act 2009 (Cth) (the FW Act) against the Red Cross parties alleging contraventions of s 340(1)(a) of the FW Act and claiming compensation and pecuniary penalties as a result of those contraventions. The person who was the subject of the adverse action was alleged to be Ms Sandi Emblem and she was an employee of Red Cross. Red Cross was alleged to be the primary contravener and Ms Fealy and Ms McIlroy were alleged to be persons involved in the contraventions within s 550 of the FW Act. The Union's claims proceeded to trial in the Federal Circuit Court on 21, 22 and 23 April 2015. The reasons for judgment of the primary judge were not delivered until 28 November 2018 which was more than three-and-a-half years after the trial. 3 The primary judge indicated in his reasons for judgment that the contraventions alleged were made out and he indicated that he would hear the parties on the form of the orders to be made and on the questions of interest, penalty, costs or other relief arising from his reasons (Queensland Nurses' Union of Employees v Australian Red Cross Society & Ors [2018] FCCA 3471). 4 On 17 December 2018, the primary judge made the following declarations: 1. The first respondent contravened s.340(1)(a) of the Fair Work Act 2009 (Cth) by issuing Sandi Emblem with a written first and final disciplinary warning on 11 April, 2014. 2. The first respondent contravened s.340(1)(a) of the Fair Work Act 2009 (Cth) by issuing Sandi Emblem with a letter on 28 May, 2014 to attend a meeting. 3. The first respondent contravened s.340(1)(a) of the Fair Work Act 2009 (Cth) by suspending Sandi Emblem from her employment on 30 May, 2014. 4. The first respondent contravened s.340(1)(a) of the Fair Work Act 2009 (Cth) by dismissing Sandi Emblem from her employment with the first respondent on 2 June, 2014. 5. The second respondent was involved in each of the contraventions of the Fair Work Act 2009 (Cth) declared in paragraphs 1 to 4, within the meaning of s.550 of the Fair Work Act 2009 (Cth), and is taken to have contravened s.340(1)(a) of the Fair Work Act 2009 (Cth) in each case. 6. The third respondent was involved in each of the contraventions of the Fair Work Act 2009 (Cth) declared in paragraphs 1 to 4, within the meaning of s.550 of the Fair Work Act 2009 (Cth), and is taken to have contravened s.340(1)(a) of the Fair Work Act 2009 (Cth) in each case. 5 In addition, the primary judge made orders designed to facilitate the hearing which was to take place with respect to penalty. 6 On 29 January 2019, the primary judge made orders as follows: (1) Pursuant to s 545(1) of the FW Act, Red Cross pay to Ms Emblem by way of compensation, the sum of $28,285.34 inclusive of interest; (2) Pursuant to s 546(1) of the FW Act, Red Cross pay a pecuniary penalty of $28,000; and (3) The pecuniary penalty be paid to the Union. The primary judge delivered reasons for those orders (Queensland Nurses Union of Employees v Australian Red Cross Society & Ors [2019] FCCA 706). 7 The Red Cross parties appeal against the orders made on 17 December 2018 and the orders made on 29 January 2019. Their appeal relates to alleged errors by the primary judge with respect to his findings that Red Cross had contravened s 340(1)(a) of the FW Act and Ms Fealy and Ms McIlroy had been involved in contraventions of that paragraph. If that be correct, then that conclusion affects both sets of orders. 8 The Union has filed a Notice of contention in which it alleges that the decision of the Federal Circuit Court should be affirmed on grounds other than those relied on by the Court.

The Background to the Appeal and the Notice of Contention 9 Ms Emblem is an enrolled nurse and she has been a member of the Union since 2007. Ms Emblem commenced employment with Red Cross on or about 11 March 2013 and she remained in that employment until she was dismissed on 2 June 2014. She worked as an enrolled nurse at the Edward Street Donor Centre in Edward Street, Brisbane. 10 Ms Fealy is the Donor Centre Manager of the Edward Street Donor Centre. In October 2013, she commenced working as the acting manager at the Edward Street Donor Centre. In November 2013, she was appointed permanently to the position of manager. Ms Fealy's predecessor was a Ms McNab. As described by the primary judge, Ms Fealy's role was to have the overall responsibility for managing the donor centre, including maintenance, collections, finances, the overall quality of the donor centre and human resources matters. At the relevant time, there were approximately 40 employees employed at the Edward Street Donor Centre. At the relevant time, Ms Fealy reported to Ms McIlroy. 11 Ms McIlroy is an area manager employed by Red Cross. She commenced in her role as an area manager on 18 April 2006, having previously been a donor centre manager. Ms McIlroy is responsible for Red Cross' donor centres in Edward Street, Springwood, Bundaberg, Marlborough and Hervey Bay. Ms McIlroy reports to Ms Melanie Thompson. 12 Ms Thompson is an employee of Red Cross. Since March 2012, she has worked in the role of Donor Services Manager, Queensland. Three area managers, one of whom was Ms McIlroy, reported to Ms Thompson. The area managers were responsible for the overall management of the donor centres within their designated area. In her evidence before the primary judge, Ms Thompson said that she generally had contact with the area managers, including Ms McIlroy, several times a week to discuss issues regarding the performance of Red Cross' business. 13 Mr Stephen Bosse is the Human Resources Manager, Queensland, and National Manufacturing of Red Cross. As noted by the primary judge, in his role as Human Resources Manager, Queensland, Mr Bosse is responsible for executing national human resources programs and strategies and addressing day-to-day human resources matters within Queensland. 14 Two other persons are relevant to the events which are the subject of the Union's claims. Ms Janet Bailey was the secretary of the Red Cross branch of the Union in the Edward Street Donor Centre during Ms Emblem's employment. Ms Suellen Condon was a Union member who worked at the Edward Street Donor Centre. The primary judge recorded that Ms Condon spoke a lot to Union members in the Edward Street Donor Centre about industrial issues, especially during the period between October and November 2013 when many staff at the Edward Street Donor Centre, including Ms Emblem, were engaged in protected industrial action. The primary judge found that Ms Emblem spoke to Ms Bailey and Ms Condon frequently in the Edward Street Donor Centre about Union issues. 15 In October 2013, the Union was engaged in, or was about to engage in, an enterprise bargaining campaign to secure a new enterprise bargain with Red Cross for the Union's members. On 9 September 2013, the Fair Work Commission granted an order for a protected action ballot of the Union's members. On 30 September 2013, the Union's members voted in favour of taking a variety of forms of protected industrial action in support of the negotiations. As the primary judge noted, the protected action took a number of forms, including a ban on the performance of some work, the distribution of pamphlets to Red Cross' donors, a refusal to wear uniform and wearing buttons or badges demonstrating support for the Union's positions in the negotiations. 16 The primary judge found, and there is no dispute, that between 18 October and early November 2013, Ms Emblem participated in protected industrial action in support of the Union's enterprise bargaining campaign. The primary judge described that participation as follows (at [16]): … In particular, she wore clothes at work which were not part of the first respondent's uniform during about six shifts. She wore bright red hi-top "Converse" branded shoes, she wore and displayed QNU badges in support of the enterprise bargaining campaign, and she distributed QNU campaign related information to blood donors in the Edward Street Centre, especially the applicant's enterprise bargaining petition for the purpose of engaging them in the enterprise bargaining campaign. Ms Emblem refused to perform non-nursing duties by refusing to "fill stock" and refusing to clean chairs. 17 Ms Emblem did not participate in the stop work action. 18 In March 2014, an employee who was leaving to move interstate met with Ms Fealy and advised her of concerns that she had about Ms Emblem. In essence, the employee told Ms Fealy that Ms Emblem had sworn in front of donors and had spoken inappropriately to them. The employee was asked by Ms Fealy to put her allegations in writing. We will refer to this as the "inappropriate language incident". 19 Ms Fealy spoke to Ms McIlroy about the allegations and she later received from the employee the written document which she had asked the employee to provide. 20 There was a conversation between Ms Fealy and Ms Emblem on 18 March 2014 when Ms Fealy advised Ms Emblem that allegations had been made against her of using inappropriate language on the donor floor. There was some discussion between Ms Fealy and Ms Emblem at that time. Ms Fealy gave Ms Emblem an unsigned letter dated 18 March 2014. The primary judge described the gravamen of the letter as follows (at [27]): A few matters have been brought to our attention in relation to your performance which include but are not limited to the following: 1. Alleged serious breach of The Blood Service Code of Conduct that may constitute serious misconduct by not treating donors, customers and staff with respect, not meeting the Blood Service standard of personal behaviour and not respecting stakeholders when you were heard to use in appropriate language on the donor floor. 21 Ms Emblem was required to attend a formal meeting on Monday, 31 March 2014 with Ms Fealy and Ms McIlroy. She attended the meeting with a support person, a Ms Doran. The primary judge made a number of findings about what occurred at this meeting. We do not need to set those out at this point. The primary judge described the evidence as given by Ms Fealy, Ms McIlroy, Ms Thompson and Mr Bosse as to the events after this meeting. We do not need to address those matters at this point. 22 On 11 April 2014, there was a meeting between Ms Fealy, Ms McIlroy, Ms Emblem and Ms Doran wherein Ms Emblem was advised by Ms Fealy of the findings made by her and Ms McIlroy. On the basis of a finding that Ms Emblem may have said to a donor that "I've got shitty veins" in reference to her own veins, Ms Emblem was placed on a first and final warning because of the reasons the primary judge identified (at [57]). 23 On or about 26 May 2014, Ms Emblem conducted a donor interview with a woman who Ms Emblem thought was about 18 years old. The purposes of the interview was to assess the suitability for a blood donation to be taken from her. The primary judge described the interview and its immediate aftermath as follows (at [64]–[65]): 64 During the interview, Ms Emblem took a sample of blood from the donor's finger which indicated that she may be unsuitable to donate blood. Ms Emblem discussed that with the donor, during which the donor became teary. She told Ms Emblem she has recently moved to Brisbane from a rural area to pursue tertiary study and had left her family behind. She was lonely and missing her family. The donor had not been eating well. They talked a little and Ms Emblem suggested that the donor talk with a counsellor at the donor's University. Ms Emblem then said to the donor, "If you ever feel you've got no one to talk to, you can ring me. I care." Ms Emblem gave the donor her mobile telephone number. The donor stopped crying and thanked Ms Emblem. 65 After the donor had composed herself Ms Emblem escorted the donor to the donor floor and handed her over to another nurse for her to have a venous haemoglobin sample taken before giving a blood donation. She told the nurse taking charge of the young donor that she had been upset. In cross-examination both Ms Fealy and Ms McIlroy agreed that Ms Emblem had done everything expected of her for the purposes of that handover. 24 This is referred to as the "young donor incident" and, for convenience, we will use that description. 25 It seems that later in that shift, Ms Emblem told her session leader, Ms Kim Tobias, that she had a young donor from the country who was upset about moving down to Brisbane and away from home. On the following day, Ms Emblem had a further conversation with Ms Tobias about the donor and during that conversation Ms Emblem mentioned to Ms Tobias that she had given the donor her mobile telephone number. 26 On 28 May 2014, Ms Fealy approached Ms Emblem on the donor floor and asked her to accompany her to her office. In her office, Ms Fealy handed Ms Emblem a letter signed by Ms Fealy and dated (incorrectly) 28 March 2014. Relevantly, the letter contained the following allegation: There had been a breach of the code of conduct that might – may constitute misconduct, whereby during a donor interview on 21 May 2014, you provided your personal mobile number to a donor in order to counsel the donor. 27 On 29 May 2014, there was another formal meeting involving Ms Emblem, a support person, Ms Fealy and Ms McIlroy. Following this meeting, Ms McIlroy recommended the dismissal of Ms Emblem. 28 On 30 May 2014, there was a meeting between Ms McIlroy, Ms Thompson and Mr Bosse. Both Ms Thompson and Mr Bosse gave evidence about that meeting. On the same day, Ms Fealy gave Ms Emblem a letter which said that she was being "stood down immediately". 29 On 2 June 2014, Ms Emblem, Ms Doran, Ms Fealy and Ms McIlroy met. There was a break in the meeting during which time Ms Fealy and Ms McIlroy spoke to Ms Anderson and Ms Thompson. The primary judge said (at [101]): …They confirmed to Ms Thompson and Ms Anderson that nothing had been said by Ms Emblem to change their view that Ms Emblem's employment should be terminated. Ms Anderson confirmed that the termination could go ahead. 30 Ms Emblem's employment by Red Cross was then terminated.

A Brief Summary of the Primary Judge's Reasons 31 The focus of the matters raised in the Notice of appeal and the Notice of contention is quite narrow and it is not necessary to outline all of the primary judge's reasons. 32 The key Union witness was Ms Emblem. The primary judge did not make any adverse findings about her evidence. He found that she had engaged in protected industrial action between 18 October 2013 and early November 2013 and we have set out above his description of that conduct (at [16]). 33 The key witnesses for the respondents were Ms Fealy, Ms McIlroy, Ms Thompson and Mr Bosse. On a number of matters his Honour did not accept the evidence of each of these witnesses, particularly Ms McIlroy and, to a lesser extent, Ms Fealy. 34 As we will discuss in more detail later, the primary judge appears to have accepted that one matter which needed to be established before the presumption in s 361(1) of the FW Act was engaged was that Red Cross knew that Ms Emblem had engaged in protected industrial action. His Honour found that it did and that Ms Fealy and Ms McIlroy also had knowledge of this circumstance. His Honour found that s 361(1) was engaged and turned to consider whether the presumption had been rebutted. His Honour considered carefully the inappropriate language incident and the young donor incident, whether the allegations made in relation to those incidents were investigated and established, and their seriousness. His Honour found that the respondents had not discharged the onus "cast" upon them by s 361(1) of the FW Act. His Honour found that Ms Fealy and Ms McIlroy were persons involved in the contraventions by Red Cross within s 550 of the FW Act.

Analysis

The Scope of the Appeal and Notice of contention 35 The Union's case was that Red Cross took adverse action against Ms Emblem because she had exercised a workplace right to engage in protected industrial action in October and November 2013. As we have said, the primary judge's finding relates to the period from 18 October 2013 to early November 2013. There was also an allegation in the Union's claim that Red Cross took adverse action against Ms Emblem because she had a workplace right to the remuneration for an Enrolled Nurse (Grade 2) under the relevant enterprise agreement being the Australian Red Cross Blood Service Queensland Nursing Enterprise Agreement 2014, cl 32 and Appendices 1 and 3, and under its predecessor, the Australian Red Cross Blood Service Queensland Nurses Collective Agreement 2010. That allegation was not pursued by the Union. The relevant reason alleged in this case was that Ms Emblem had exercised a workplace right to engage in protected industrial action in October and November 2013. 36 The Union's case before the primary judge was that there were six decisions to take adverse action. However, it is clear that the primary judge found that there were four acts of adverse action which each amounted to a contravention of s 340(1)(a) of the FW Act. Those are the acts which are identified in paragraphs 1–4 inclusive of the declarations and may conveniently be referred to as: the decision to issue Ms Emblem with a written first and final disciplinary warning on 11 April 2014; the decision to issue Ms Emblem with a letter on 28 May 2014 to attend a meeting; a decision to suspend Ms Emblem from her employment on 30 May 2014; and a decision to dismiss Ms Emblem from her employment on 2 June 2014. 37 The primary judge found that the decision to issue Ms Emblem with a written first and final disciplinary warning on 11 April 2014 (first decision) was made by Ms McIlroy (at [136]). His Honour found that the decision to dismiss Ms Emblem on 2 June 2014 (fourth decision) was made by Ms Thompson and Mr Bosse (at [143]). The findings of the primary judge in relation to the identity of the decision-makers in relation to the second and third decisions are less clear. Red Cross submits that the primary judge found that the decision to issue Ms Emblem with a letter on 28 May 2014 to attend a meeting was made by Ms Thompson (at [69]). Red Cross submits that the primary judge found that the decision to suspend Ms Emblem was made by Mr Bosse (at [88]). The Union did not make a submission to the contrary and its focus was on the first and fourth decisions. We consider that, in those circumstances, this Court should proceed on the basis that Red Cross' characterisation of the decision-makers in relation to the second and third decisions is correct. 38 The Red Cross parties submitted that in determining whether action was taken for a proscribed purpose, it is necessary to identify the decision-maker and then examine the state of mind of that person. If that person did not know that the person who was allegedly the subject of the adverse action had engaged in protected industrial action, then the proscribed purpose for the purposes of s 340(1)(a) could not be established. At a general level, the Union accepted this proposition on the appeal. It did not argue that the knowledge of one employee could be aggregated with the acts of another employee who made the decision. In other words, it was not argued that there could be a form of "mosaicking", as it was referred to in the course of submissions. 39 It is convenient at this point to refer to the Grounds of Appeal. 40 Grounds 1, 2 and 3 are in the following terms: 1. The primary judge erred in: (a) finding (at [115]-[116] of the Judgment) that s 361 of the Fair Work Act 2009 (the Act) was enlivened on the case as pleaded and run against the First Appellant that its relevant decision makers knew that Ms Sandi Emblem (the Employee) had participated in industrial action. The evidence relied upon by the primary judge to reach that conclusion does not ground a finding of fact or law that the relevant decision makers knew that the Employee had engaged in industrial action as pleaded and run against the First Appellant; (b) failing to find that s 361 of the Act was not enlivened. 2. The primary judge erred in: (a) finding the First Appellant had failed to discharge the evidential onus pursuant to s 361 of the Act; (b) failing to find that the evidence adduced by the First Appellant was sufficient to discharge the evidential onus pursuant to s 361 of the Act. 3. The Judgment, the Liability Orders and the Penalty Orders are unsafe, and should be set aside accordingly, by reason of the delay between the hearing of the proceeding, on 21, 22 and 23 April 2015, and the delivery of the Judgment on 28 November 2018, particularly given the primary judge's findings of fact that were adverse to the Appellants, including apparent adverse credibility findings against the witnesses called by the Appellants, in circumstances where such findings and conclusions needed to be made promptly. 41 Ground 4 is a challenge to the finding of involvement in the contraventions by Ms Fealy within s 550 of the FW Act. Although Ms Fealy was found to have knowledge that Ms Emblem had engaged in protected industrial action, she was not a decision-maker in relation to any of the four decisions. The Union did not mount an argument that the declaration against Ms Fealy could not stand. 42 Ground 5 is a challenge to the finding that Ms McIlroy was involved in the contraventions within s 550 of the FW Act. It will succeed if the earlier grounds are successful. There is an additional argument that the primary judge erred in applying the presumption in s 361(1) to the issue of Ms McIlroy's accessorial liability under s 550 of the FW Act. 43 To return then to identify the narrow scope of the appeal and notice of contention. 44 The Red Cross parties submit, correctly in our view, that the primary judge did not find that Ms Thompson or Mr Bosse knew that Ms Emblem had engaged in protected industrial action. Both witnesses swore that they did not know that (Ms Thompson's affidavit at [12]; Mr Bosse's affidavit at [10]). The Red Cross parties assert that the Union did not challenge this evidence given by Ms Thompson and Mr Bosse. In any event, in its outline of submissions on the appeal, the Union accepted that there was insufficient evidence to establish that "Mr Bosse or Ms Thompson had direct knowledge of Ms Emblem taking the protected industrial action". 45 The Red Cross parties submit that, in those circumstances, its appeal with respect to the second, third and fourth decisions must succeed, subject to a consideration of the Union's Notice of contention with respect to the fourth decision, namely, the decision to dismiss Ms Emblem from her employment on 2 June 2014. With respect to the first decision, namely, the decision to issue Ms Emblem with a written first and final disciplinary warning, the Red Cross parties submit that the primary judge erred in concluding that Ms McIlroy knew that Ms Emblem had engaged in protected industrial action. Furthermore, the Red Cross parties submit that the presumption in s 361(1) of the FW Act was not engaged. 46 The Union submits that the primary judge was correct to find on the evidence that Ms McIlroy knew that Ms Emblem had engaged in protected industrial action. In the alternative, the presumption in s 361(1) of the FW Act was engaged and not rebutted and, in the further alternative, there was other evidence in the case, that is, evidence other than that relied on by the primary judge, to establish that Ms McIlroy knew that Ms Emblem had engaged in protected industrial action. With respect to the fourth decision, that is, the decision to dismiss Ms Emblem on 2 June 2014, the Union submits that Ms McIlroy knew that Ms Emblem had engaged in protected industrial action for the reasons it had previously identified and was a decision-maker in relation to the decision, or was so involved in the decision, that her proscribed purpose taints the decision. 47 The three grounds in the Notice of contention are as follows: 1. The Third Respondent, Lisa Mcllroy was a decision maker in respect of the decision to dismiss Sandi Emblem on 30 May or 2 June 2014 (the dismissal decision). 2. The First Respondent has failed to discharge the onus of disproving that, in her role as a decision maker in the dismissal decision, Lisa Mcllroy acted for the reason, or for reasons that included the reason, that Sandi Emblem had exercised a workplace right by taking part in protected industrial action in October and November 2013 (prohibited reason). 3. Alternatively, to the extent that Lisa Mcllroy was not a decision maker in the dismissal decision: (a) Ms Mcllroy conducted the investigation which led to, and she recommended, the dismissal decision; (b) the dismissal decision by the First Respondent was infected by the prohibited reason of Ms Mcllroy; (c) the dismissal decision by the First Respondent was therefore taken for the prohibited reason, or for reasons that included the prohibited reason. (Original formatting retained.) 48 In response, the Red Cross parties submit that Ms McIlroy did not have knowledge that Ms Emblem had engaged in protected industrial action for the reasons they had previously identified and she was not a decision-maker in relation to the fourth decision to dismiss Ms Emblem on 2 June 2014.

The Relevant Legislative Provisions 49 Section 340(1) of the FW Act relevantly provides: (1) A person must not take adverse action against another person: (a) because the other person: (i) has a workplace right; or (ii) has, or has not, exercised a workplace right; or … (2) … Note: This subsection is a civil remedy provision (see Part 4–1). 50 There was no dispute that the four decisions constituted adverse action against Ms Emblem. There was no dispute that between 18 October 2013 and early November 2013, Ms Emblem engaged in protected industrial action. The issue was whether Red Cross had taken the adverse action against Ms Emblem because she had engaged in protected industrial action. 51 Section 360 provides that for the purposes of Part 3-1, a person takes action for a particular reason if the reasons for the action include that reason. 52 Section 361 is in the following terms: (1) If: (a) in an application in relation to a contravention of this Part, it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and (b) taking that action for that reason or with that intent would constitute a contravention of this Part; it is presumed that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise. (2) Subsection (1) does not apply in relation to orders for an interim injunction. 53 Section 550, which is relevant to the Union's case against Ms Fealy and Ms McIlroy, is in the following terms: (1) A person who is involved in a contravention of a civil remedy provision is taken to have contravened that provision. Note: If a person (the involved person) is taken under this subsection to have contravened a civil remedy provision, the involved person's contravention may be a serious contravention (see subsection 557A(5A)). Serious contraventions attract higher maximum penalties (see subsection 539(2)). (2) A person is involved in a contravention of a civil remedy provision if, and only if, the person: (a) has aided, abetted, counselled or procured the contravention; or (b) has induced the contravention, whether by threats or promises or otherwise; or (c) has been in any way, by act or omission, directly or indirectly, knowingly concerned in or party to the contravention; or (d) has conspired with others to effect the contravention. 54 Section 793 deals with the circumstances in which conduct or a state of mind may be attributed to a body corporate. We do not need to set out the terms of that section because, as we have said, disputed issues of attribution do not arise and the Union does not suggest that knowledge and conduct can be aggregated in the way we have identified.

The Knowledge of Ms McIlroy that Ms Emblem had Engaged in Protected Industrial Action 55 The primary judge considered whether Red Cross, Ms Fealy and Ms McIlroy knew that Ms Emblem had engaged in protected industrial action. His Honour found that each of them knew that fact. Insofar as his Honour found that Red Cross knew that fact because Ms Fealy's immediate predecessor, Ms McNab, knew that fact (see reasons at [119]), that conclusion was not one that the Union sought to support on the appeal. In its outline of submissions, the Union said: 7. The Respondent accepts that Ms McNab's knowledge of itself could not assist in establishing a contravention of s.340 because Ms McNab did not take any relevant adverse action… 56 As far as Ms Fealy was concerned, the primary judge weighed the "specific recollection" of Ms Emblem against the "equivocal evidence" of Ms Fealy and preferred the former to the effect that Ms Emblem saw Ms Fealy on the donor floor regularly during the time that the protected industrial action was underway and that she spoke with her. The Red Cross parties challenged that conclusion, although it was not relevant to the primary contraventions by Red Cross because Ms Fealy was not a decision-maker. In any event, we see no error in the primary judge's reasoning in the following passages (at [117]–[118]): 117 Ms Emblem gave evidence that she saw Ms Fealy on the donor floor regularly during the time that the protected action was underway and that she spoke with her. She was wearing bright red "Converse" hi-top boots. They were starkly different to the usual footwear worn by staff on the donor floor. I accept her evidence about that. Rather than giving evidence that she did not know Ms Emblem was participating in the industrial action, Ms Fealy said that she might have seen her and that she was probably participating in the action because 90% of the staff were participating. I prefer Ms Emblem's specific recollection to the equivocal evidence of Ms Fealy. 118 I accept counsel for the applicant's submission that it was likely apparent to Ms Fealy that Ms Emblem was participating in the industrial action. She was a new manager keen to know what was going on and keen to understand what people were doing on the floor. I accept that given Ms Fealy's newly arrived presence at the Edward Street Donor Centre, as a manager she would have known who was prominent in the then extant industrial action. 57 The primary judge considered issues of the knowledge of the Red Cross parties in the context of considering the circumstances in which s 361(1) of the FW Act was engaged. His Honour said the following (at [115]): Counsel for the respondents accepted that: a) if I conclude that Ms Emblem was an employee; b) she was engaged in industrial action at the relevant times pleaded; and c) the first respondent knew about her participation in that industrial action s.361 of the Fair Work Act would be engaged. 58 Paragraph c) in the above passage is the critical paragraph. The primary judge seems to be saying that a pre-condition to the engagement of s 361 of the FW Act is knowledge on the part of Red Cross of Ms Emblem's engagement in protected industrial action. Having regard to the findings of fact and the way in which the appeal was argued, that means knowledge on the part of Ms McIlroy. The Red Cross parties sought to uphold that as the correct approach. 59 The Union, however, submitted that it was not a pre-condition to the engagement of s 361 that it establish that Ms McIlroy knew about Ms Emblem's participation in protected industrial action. We will return to this issue. 60 We come then to the critical issue of Ms McIlroy's knowledge that Ms Emblem had engaged in protected industrial action. 61 As far as Ms McIlroy's knowledge of Ms Emblem engaging in protected industrial action is concerned, the primary judge said (at [121]–[122]): 121 Further, the evidence demonstrates that Ms Emblem was an associate of a group of union members. The evidence showed that Ms Emblem, Ms Bailey, and Ms Condon associated and spoke together during the protected industrial action. Ms Bailey and Ms Condon were identified by Ms McIlroy in cross-examination as negative and resistant to change. She knew they were union representatives. Moreover, Ms McIlroy and Ms Bailey had encountered each other in the enterprise agreement negotiations that were taking place in the latter part of 2013. During those negotiations Ms Bailee [sic] was critical of the management of the Edward Street Donor Centre. 122 I find that the first respondent, Ms Fealy and Ms McIlroy each knew that Ms Emblem was undertaking the protected industrial action in the latter part of 2013. 62 The Red Cross parties made a strong attack on these reasons. The Union sought to support them. Both parties referred to other evidence relevant to Ms McIlroy's knowledge which was not considered by the primary judge. 63 We deal first with the issue of whether knowledge by a respondent that a person has engaged in industrial action is a pre-condition to the engagement of the presumption in s 361(1). 64 The authorities establish that in order to engage s 361, the following must be established. 65 First, there must be an allegation in the application which satisfies the requirements of s 361(1)(a). That requirement is not an issue in this case so we do no more than refer to the decision of this Court in Australian Building and Construction Commissioner v Hall [2018] FCAFC 83; (2018) 261 FCR 347 (Hall) at [13]–[14]. 66 Secondly, the applicant must establish as an objective fact the circumstance said to be the reason for the taking of the adverse action. That requirement is not an issue in this case so we do no more than refer to Tattsbet Ltd v Morrow [2015] FCAFC 62; (2015) 233 FCR 46 (Tattsbet) at [119] per Jessup J (with whom Allsop CJ and White J agreed); Celand v Skycity Adelaide Pty Ltd [2017] FCAFC 222; (2017) 256 FCR 306 (Celand) at [154] per Bromberg J (with whom Charlesworth J agreed on this point); Hall at [16]. 67 Thirdly, and perhaps there is more scope here for debate as to precisely how the following consideration operates, it is said that an applicant must establish that the evidence is consistent with the hypothesis that the respondent was actuated by a proscribed purpose. 68 In General Motors-Holden's Pty Ltd v Bowling (1976) 51 ALJR 235 (Bowling), the High Court considered s 5(4) of the Conciliation and Arbitration Act 1904 (Cth) which was in the following terms: In any proceeding for an offence against this section, if all the facts and circumstances constituting the offence, other than the reason for the defendant's action, are proved it shall lie upon the defendant to prove that he was not actuated by the reason alleged in the charge. 69 Justice Mason (as his Honour then was; with whom Stephen and Jacobs JJ agreed) said the following about the operation of the subsection: Section 5(4) imposed the onus on the appellant of establishing affirmatively that it was not actuated by the reason alleged in the charge. The consequence was that the respondent, in order to succeed, was not bound to adduce evidence that the appellant was actuated by that reason, a matter peculiarly within the knowledge of the appellant. The respondent was entitled to succeed if the evidence was consistent with the hypothesis that the appellant was so actuated and that hypothesis was not displaced by the appellant. To hold that, despite the subsection, there is some requirement that the prosecutor brings evidence of this fact is to make an implication which, in my view, is unwarranted and which is at variance with the plain purpose of the provision in throwing on to the defendant the onus of proving that which lies peculiarly within his own knowledge. 70 In Board of Bendigo Regional Institute of Technical and Further Education v Barclay (No 1) [2012] HCA 32; (2012) 248 CLR 500, Gummow and Hayne JJ at [104]–[105] said that the approach of Mason J in Bowling applied to the provisions of the FW Act (in that case s 346) and that, with respect to onus of proof, the FW Act adopts the same position as that under the 1904 Act. 71 In Australian Building and Construction Commissioner v Hall [2017] FCA 274; (2017) 269 IR 28, Flick J (at [253]) referred to Mason J's observations in the passage set out above in support of the proposition which his Honour accepted that, in order to invoke the reverse onus of proof, an applicant need only establish that the evidence is consistent with the hypothesis that a respondent was actuated by a proscribed reason. 72 In Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2015] FCAFC 25; (2015) 230 FCR 298, the Full Court made the following observation (at [192]): It is possible that the alleged reason may be negated by a respondent on the applicant's own evidence. Where the connection between the reason alleged and the impugned conduct is so remote as to be fanciful, the onus may well be discharged in the absence of any evidence from the decision-maker. But as French CJ and Crennan J observed at [45] of Barclay, "[g]enerally, it will be extremely difficult to displace the statutory presumption in s 361 if no direct testimony is given by the decision-maker". 73 Finally, in terms of our review of the authorities, in Celand, Bromberg J (with whom Charlesworth J agreed on this point) after reviewing the above authorities said that neither of the "qualifications", that is the second and third matters set out above, mean that the applicant must establish a prima facie connection between the alleged adverse action and a prohibited reason and that there is an obvious difference between establishing a prima facie connection and demonstrating that the connection between the reason alleged and the impugned conduct is not so remote as to be fanciful. 74 It may well be appropriate to describe the requirement that the evidence is consistent with the hypothesis that the respondent was actuated by a proscribed purpose a pre-condition or as operating before the presumption is engaged. After all, the presumption operates and continues to operate unless the person who took the action proves otherwise. However, we do not think a conclusion to that effect resolves the issue in this case which is whether it was necessary for the Union to prove, before the presumption was engaged, that Ms Emblem engaged in protected industrial action. 75 In our opinion, the Union was not required to prove that Ms McIlroy knew that Ms Emblem had engaged in protected industrial action before the presumption in s 361(1) was engaged. First, the time delay between the protected industrial action and the inappropriate language incident of four to five months was not (contrary to the submission of the Red Cross parties) of such a nature as to make a connection between the reason alleged and the impugned conduct so remote as to be fanciful. Secondly, if the evidence was as it was, but excluding any evidence one way or the other of Ms McIlroy's knowledge of Ms Emblem's engagement in protected industrial action, still we do not think it could be said that the evidence was inconsistent with a hypothesis that Ms McIlroy had acted for a proscribed purpose. Thirdly, and most importantly, one of the evident purposes of a section like s 361(1) as described by Mason J in Bowling is to place the onus of proving a mental state on the person best able to prove it, being the person whose mental state is in issue. It would be odd if the applicant bore the onus of proving part of the decision-maker's mental state (i.e., knowledge that the relevant person had, say, engaged in protected industrial action). For these reasons, we do not consider that the Union was required to prove that Ms McIlroy knew Ms Emblem had engaged in protected industrial action before the presumption in s 361(1) was engaged. 76 Ms McIlroy gave evidence and it was necessary for her evidence to be assessed. If the primary judge had found that Ms McIlroy did not know that Ms Emblem had engaged in protected industrial action, then it is difficult to see how she could be found to have a proscribed purpose. It is in the evidence and the way in which it was dealt with by the primary judge that the difficulties lie. 77 There are three points which should now be made. 78 First, although the Union does not have to uphold the primary judge's reasoning in paragraph 121 (set out above at [61]) in view of the operation of the presumption, that reasoning does not withstand analysis without evidence (at least) that Ms McIlroy knew that Ms Emblem associated with Ms Bailey and Ms Condon. 79 Secondly, Ms McIlroy gave evidence that she did not specifically recall whether Ms Emblem had engaged in protected industrial action. In response to evidence from Ms Emblem that she saw Ms McIlroy and Ms McIlroy saw her a few times "during the period when I took protected industrial action", Ms McIlroy consulted her diary and Ms Emblem's timesheets. Ms McIlroy identified only two occasions where she was present at the Edward Street Donor Centre which might be relevant. The first occasion was on 5 November 2013 when she was present at the centre for approximately two hours to conduct interviews with enrolled nurses. The second occasion was on 11 November 2013 when she attended the centre at 8 am for a one hour interview with an enrolled nurse. On this date, Ms Emblem did not start work until 10 am. Ms McIlroy is unsure whether she was still present at the centre when Ms Emblem commenced her shift. She said that her general practice after conducting interviews at a donor centre was to leave the donor centre and return to the Brisbane Processing Centre or wherever her next meeting was. The primary judge does not address this evidence in his Honour's reasons for judgment. 80 Thirdly, and on the other side, the Union referred to evidence not relied on by the primary judge which the Union submits supported a finding that Ms McIlroy was aware that Ms Emblem took protected industrial action. The Union refers to evidence of Ms McIlroy in her affidavit to the effect that the overwhelming majority of employees at the Area 1 Donor Centres participated in some form of protected industrial action and oral evidence from Ms McIlroy to similar effect. She said that she did not know who the staff were who participated in protected industrial action, but, "[t]here was an overwhelming majority of our staff that took industrial action". The Union also submitted that it was logical to infer that the corporate knowledge gained by Ms McNab would have been passed on to Ms Fealy who, in turn, would pass it on to her immediate superior, Ms McIlroy, with whom she worked closely. The Union submitted that putting these matters together, it was sufficient to establish that, with or without the operation of s 361(1) of the FW Act, the fact that Ms Emblem had engaged in protected industrial action was established by the evidence. 81 The difficulty is that the primary judge has not expressly dealt with the evidence that might favour a conclusion that Ms McIlroy did not know that Ms Emblem had engaged in protected industrial action. The primary judge was required to consider all the evidence advanced by a party relevant to an issue. 82 A trial judge is not required to refer in his or her reasons to every piece of evidence relevant to an issue. The significance of the evidence and whether it is covered by a more general finding will bear on the assessment of whether it should be concluded that the evidence has been overlooked. We consider that substantial delay between the trial and the delivery of reasons is also relevant to this assessment. It supports, in our respectful opinion, the conclusion that the evidence has not been assessed and weighed in the balance. In Expectation Pty Ltd v PRD Realty Pty Ltd [2004] FCAFC 189; (2004) 140 FCR 17, the Full Court identified principles which are relevant to the issues in this case. The Court said (at [71] and [80]): 71 In the normal course, statements made by a trial judge of a general assertive character can be accepted as encompassing a detailed consideration of the evidence. However, where there is significant delay, such statements should be treated with some reserve. After a significant delay, a more comprehensive statement of the relevant evidence than would normally be required should be provided by the trial judge in order to make manifest, to the parties and the public, that the delay has not affected the decision. 80 The delay in the present case went beyond the minimum period of "operative delay". In those circumstances, in his reasons for judgment his Honour was required to carry out a detailed consideration ie, a more comprehensive statement of the relevant evidence (to use the words of the Court of Criminal Appeal in Maxwell) than would normally be required. The purpose of doing so would have been to demonstrate to all concerned that the delay had not affected his decision. This is not a case in which, sitting as an appellate court, it can be assumed that the mere failure to refer to evidence did not mean that it had been overlooked. 83 We do not think that it can be concluded that the primary judge has considered all of the evidence relevant to Ms McIlroy's knowledge. Nor do we think that this Court can undertake the task of weighing and assessing the evidence which would include not only Ms McIlroy's evidence, but also the additional evidence relied on by the Union. Self-evidently, much may depend on the assessment of Ms McIlroy as a witness. 84 We have considered whether the primary judge's adverse conclusions with respect to a number of aspects of Ms McIlroy's evidence should lead to the conclusion that it was inevitable that he would have rejected her evidence. There are two problems in taking that approach. One is the obvious one that a Court may accept the evidence of a witness on some matters, but not on others. Secondly, the delay between the trial and the delivery of judgment means that, in relation to the findings his Honour did make, there is a real risk the primary judge has compromised his ability to use the advantage his Honour had of observing Ms McIlroy (and others) as a witness (Tattsbet at [134] per Jessup J; Allsop CJ and White J agreeing). 85 Regrettably, having regard to the circumstances, the appropriate order in this case is a retrial before another judge. We would invite the parties to make short written submissions on the appropriate terms of the remitter. 86 We should add that we consider the same result would follow even if we are wrong about the operation of the presumption in s 361(1) because in that event, evidence relied on by the Union as relevant to the issue has not been considered or considered properly by the primary judge.

Was Ms McIlroy a Decision-Maker in relation to the Fourth Decision, that is, the Decision to Dismiss Ms Emblem on 2 June 2014? 87 There are two issues in relation to the decision to dismiss Ms Emblem on 2 June 2014. 88 The first issue is that of Ms McIlroy's knowledge that Ms Emblem had engaged in protected industrial action. This is the same issue as is raised in connection with the first issue and is discussed above. The same result obtains. Because that issue cannot be determined by this Court, the overall issue of whether there was a contravention in relation to the fourth decision cannot be determined by this Court unless this Court decides the second issue in favour of the Red Cross parties. 89 The second issue is whether Ms McIlroy was a decision-maker in relation to the decision to dismiss Ms Emblem. As we have previously said, the primary judge found that the decision-makers were Ms Thompson and Mr Bosse. The Union submitted that this conclusion was wrong and that Ms McIlroy was either a decision-maker or she made an indispensable contribution to the decision such that if she had a proscribed purpose, it taints the decision. Clearly, a "decision-maker" can range from one person to a committee or group, and from a person or body starting from scratch to a person or body rubber-stamping the recommendation of others. 90 The decision of this Court in Elliott v Kodak Australasia Pty Ltd [2001] FCA 1804; (2001) 129 IR 251 (Kodak) that the absence of a proscribed purpose in the mind of a decision-maker who adopts as his or her starting point the results of an assessment and ranking of an employee by reference to certain criteria performed by others does not foreclose the issue of purpose and a proscribed purpose may still be found where such was the purpose of a person who makes an indispensable contribution to the rankings. Kodak was followed by Reeves J in Construction, Forestry, Mining and Energy Union v Clermont Coal Pty Ltd [2015] FCA 1014; (2015) 253 IR 166 who (at [121]–[122]) spoke in terms of a person whose reasons had a material effect on the ultimate decision or outcome. 91 We accept that a person who is involved in the process leading to the decision may be a decision-maker for the purpose of a proscribed purpose, but we do not need to formulate a precise test for the purpose of this case and consider it prudent to refrain from doing so. 92 There was a good deal of evidence in this case that Ms McIlroy was centrally involved in the decision to dismiss Ms Emblem. Ms McIlroy was Mr Fealy's superior and it was the two of them who interviewed Ms Emblem on 29 May 2014. Ms McIlroy advised Ms Thompson of Ms Emblem's responses at the meeting and she recommended the dismissal of Ms Emblem. Ms McIlroy attended a meeting with Ms Thompson and Mr Bosse on 30 May 2014 and she, with Ms Fealy, attended the meeting with Ms Emblem on 2 June 2014 when the latter was told that her employment would be terminated. Ms McIlroy admitted in cross-examination that she was the person who had investigated the matter, that Ms Thompson and Mr Bosse had had "no hands-on role in dealing with the disciplinary issue" and that she was part of the decision-making process. 93 The difficulty in this Court deciding that Ms McIlroy was a decision-maker in the relevant sense is that we do not have the primary judge's assessment of the evidence of Ms Thompson that Ms McIlroy was not part of the decision-making process and Mr Bosse's evidence that he was the decision-maker. We cannot see how this Court can assess that evidence as it has not seen or heard the witnesses. 94 This is a matter which, although not as compelling as the problems with the knowledge issue, means that the matter must be the subject of a retrial.

Involvement within s 550 of the FW Act 95 As we have said, the Union did not seek to defend the declaration against Ms Fealy for involvement in the contraventions by Red Cross. 96 The equivalent declaration against Ms McIlroy must be set aside for the reasons set out above. There is a separate and independent reason for setting aside the declaration against Ms Fealy. The primary judge's reasons on this topic were as follows: (at [155]): Moreover, both the second and third respondents were involved in those contraventions within the meaning of that term as used in s.550(1) of the Fair Work Act. They knew that they were taking action against Ms Emblem that would alter her position to her prejudice. That is especially so given the inadequate investigation of the allegations and the promotion of the "outcomes" of those investigations within the first respondent's human resource decision making structure. They knew of the flawed "investigations" of the matters alleged against Ms Emblem and they were indifferent to ensuring that there were proper investigations carried out. 97 The presumption in s 361(1) does not apply in the case of Ms McIlroy's liability as an accessory. It was necessary for the Union to prove that she had knowledge of the essential elements of the contravention (Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2017] FCAFC 50 at [59]; Port Kembla Coal Terminal Ltd v Construction, Forestry, Mining and Energy Union [2016] FCAFC 99; (2016) 248 FCR 18 at [448] per Rangiah J). The primary judge has not adopted that approach which is a matter particularly evident in the case of those decisions where Ms McIlroy was not the decision-maker.

Conclusion 98 The appeal must be allowed and the relevant orders of the primary judge set aside. There must be a retrial of the Union's claims before another judge. Whether it is possible and appropriate to limit the terms of the remitter can be the subject of short written submissions from the parties. 99 The orders of the Court are as follows: (1) The appellants file and serve within seven days draft minutes of order reflecting the conclusions in these reasons and if they seek limits on the remitter to another judge, written submissions limited to four pages in support of such limitations. (2) The respondent file and serve within 14 days such written submissions limited to four pages as it may wish to make directed to the appellants' draft minutes of order and limits on the terms of the remitter. I certify that the preceding ninety-nine (99) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Greenwood, Besanko and Rangiah.

Associate: Dated: 3 December 2019