Page:Qantas v Transport Workers Union of Australia.pdf/38

Steward J

in Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd, albeit in the analogous context of s 346 of the FWA, French CJ and Kiefel J said :

"The focus of the inquiry as to whether s 346(b) has been contravened is upon the reasons for [the decision-maker] taking the adverse action. This is evident from the word 'because' in s 346, and from the terms of s 361. The inquiry involves a search for the reasoning actually employed by [the decision-maker]. The determination to be made by the court is one of fact, taking account of all the facts and circumstances of the case and available inferences."

To similar effect, in Board of Bendigo Regional Institute of Technical and Further Education v Barclay [No 1], Heydon J said :

"To search for the 'reason' for a voluntary action is to search for the reasoning actually employed by the person who acted. Nothing in the Act expressly suggests that the courts are to search for 'unconscious' elements in the impugned reasoning of persons …"

Corporate decision-making is often the product of many motivations, causes, influences and processes of reasoning. Depending on their level of seniority or function, officers of a company may well emphasise different aspects or factors as to why something is to be done. For example, those in the area of human resources may well have a focus on employment outcomes. But the task is the identification of the actual, immediate or operative reason or reasons for taking adverse action. That is a question of fact. In a given case, it may well require one to reject as a reason for taking adverse action the musings or thoughts of employees that ultimately play no part in the ultimate decision-making process. It may also require one to differentiate between the actual reasons for taking adverse action, and factors or issues which may have contributed in only some causal way in the lead up to the occurrence of such conduct. Perram J explained this well in Construction, Forestry, Mining and Energy Union v Endeavour Coal Pty Ltd, when his Honour observed that factoring something into one's consideration or taking something into account does not necessarily make it a reason for taking adverse action. Perram J said :

"[T]here is a factual distinction between factoring something into one's consideration of a matter and making a decision about the matter itself. To