Page:Qantas v Transport Workers Union of Australia.pdf/39

Steward J

give an example: in reaching the conclusions I have reached on this appeal I have taken the CFMEU's submissions into account and they have formed an important element in my decision-making processes. However, as will be apparent, the fact that I have had regard to them does not entail that they may therefore be described as constituting a part of my subjective reasons for decision. Of course, if by reason one means 'cause' then one gets a different result. On that view of things, [the employee's] prior record was causally connected to the decision to transfer him to a different shift. That approach to the identification of the reason in question is prevented, however, by CFMEU v BHP. The inquiry thrown up by s 340 is not one concerned with causation but, rather, the subjective reasons for action of the decision-maker."

For similar reasons it is not enough that there may be a "connection" between the taking of adverse action, and, for example, protected industrial activity. As French CJ and Kiefel J said in BHP Coal :

"Section 346 does not direct a court to inquire whether the adverse action can be characterised as connected with the industrial activities which are protected by the Act. It requires a determination of fact as to the reasons which motivated the person who took the adverse action."

The foregoing observation applies equally to s 340 of the FWA.

Identifying the actual or operative reason for taking adverse action will also require one to identify the decision-maker or decision-makers. That is again a question of fact. In this matter, it was accepted that the decision-maker was Mr Andrew David, Chief Executive Officer of Qantas Domestic and International. Where a company takes adverse action, the decision-makers will usually be those who represent its directing mind, and, ordinarily, that will be the company's board of directors or, where applicable, the board's authorised delegate or delegates and agent or agents. In every case, if the presumption mandated by s 361 is to be displaced, what is required is a determination of the actual or authentic reason or reasons for taking adverse action by the real decision-maker or decision-makers.

The distinction between the actual or operative reason for taking adverse action and factors contributing to the causes for adverse action explains the principle that s 340 does not inhibit an employer from taking adverse action for a