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INSIDE THIS ISSUE:
International developmentsEuropean Court of Human RightsThoma v Luxembourg (29 March 2001): A radio broadcast journalist read a newspaper quotation that was defamatory of 63 Forestry Commission officials. The Luxembourg Appeal Court (LAC) held that he was in breach of Articles 1382 and 1383 of the Civil Code and ordered that he should pay each official a nominal sum of 1 Franc. Held by ECtHR, the requirement imposed by the LAC that a journalist should formally distance himself from remarks that he was quoting was not reconcilable with the role of the press in providing information on current events, opinion and ideas and was a breach of Article 10 (Everyone has the right to freedom of expression…). Citation of many leading cases on freedom of expression. United Kingdom
Douglas & Ors v Hello! Ltd (21 December 2000): This case involved Hello! Magazine's attempt to publish unauthorised photos of the wedding of Michael Douglas and Catherine Zeta Jones. Exclusive rights had been granted to OK! Magazine. The Court of Appeal overturned the injunction granted by Hunt J. to restrain publication. The Court held English law recognised that an individual had a right of personal privacy grounded in the equitable doctrine of breach of confidence. It further held that when considering whether to grant any relief which might affect the exercise of the right to freedom of expression it would have to take into account relevant rights under the Convention for the Protection of Human Rights and Fundamental Freedoms, as scheduled to the Human Rights Act 1998 such as Art 10-freedom of expression and Art 8- everyone has the right to respect for his private and family life, his home and his correspondence. Discussion of 'horizontal effect' of Articles 8 and 10 by Sedley LJ at para 133. (Horizontal effect refers to where one private individual or entity can seek redress from another). The Court decided on balance the injunction should be lifted and noted the claimants had the right to sue Hello! for damages. R v SS for HD ex parte Adan & Anor (19 December 2000): (House of Lords): Asylum. 1951 Geneva Convention on Refugees as amended by the 1967 Protocol Interpretation of article 1A(2) of the Refugee Convention should be autonomous and not be capable of differing interpretation by other signatories. Accordingly, in the absence of a ruling from the International Court of Justice or uniform state procedures, the Secretary of State should apply what the English courts hold to be the autonomous meaning of the Refugee Convention, and should not send asylum seekers back to third countries which adopt interpretations of the Refugee Convention that would result in the seeker being sent back to a country to which England would not directly send the asylum seeker. Although this was not a ECHR case, comparison was made with the ECtHR's autonomous interpretation of key concepts in the ECHR, which overrode the national interpretations. Asylum & Immigration Act 1996 s.2(2)(c) considered. R v SS for HD ex parte Mahmood (8 December 2000) (English Court of Appeal): Deportation decision by Secretary of State in respect of illegal immigrant, who had married a British citizen after asylum had been refused and he had been served with notice of removal directions. Appeal concerned decision to refuse application for leave to stay on the basis of his marriage. 2 children since born. ECtHR jurisprudence summarised as laying down following principles. The State has a right under international law to control entry of non-nationals, subject to treaties. Article 8 does not impose on the State any general obligation to respect the choice of residence of a married couple. If no insurmountable obstacles to the family living together in country of origin, exclusion of one family member is not necessarily violation of Art 8. There will likely be a violation if the family is long established and it is not reasonable to expect the other family members to follow the expellee. Knowledge at time of marriage of precarious residence rights militate against a finding of an Article 8 violation. The balance between family rights and the State's interest in controlling immigration depends on the facts and circumstances in the State.
MacDonald v Ministry of Defence (EAT): Discrimination on grounds of sexual orientation is discrimination on grounds of "sex" for the purposes of the Sex Discrimination Act. (Note that Equal Opportunities Review Number 94 November/December 2000 at pages 41-42 contains a useful analysis of the case and the impact of recent ECrtHR cases dealing with Article 14 of the ECHR (relating to non-discrimination and "other status"). EU framework directive for equal treatment in employment and occupation: Age discrimination in employment, and discrimination on the grounds of sexual orientation are to be barred by Council Directive 2000/78/EC establishing a general framework for equal treatment in employment and occupation. The new Directive is the most important European discrimination legislation since the 1976 Equal Treatment Directive. It also covers discrimination on grounds of religion or belief and disability discrimination. EU Member States must implement the provisions on sexual orientation and religious discrimination by 2 December 2003. Member States have until 2 December 2006 to legislate on age and disability discrimination. In practical terms, this will mean that for the first time in the UK, discrimination in the workplace on the grounds of age and sexual orientation will be made unlawful. It will also be unlawful for the first time in Great Britain to discriminate on grounds of religion or belief in employment. Equal pay law reform proposals: The British Government has issued a consultation document containing proposals aimed at speeding up equal pay hearings. The consultation paper, issued in December, also contains proposals to: replace the two year limit on back pay in equal pay cases with a six year limit; put a six month time limit on sex discrimination claims brought by former employees; and put in place changes to the Sex Discrimination Act required by the EU Burden of Proof Directive. The deadline for responses was 19 February 2001. CanadaVlug v Canadian Broadcasting Corp (15 November 2000): The Canadian Human Rights Tribunal ruled that the Canadian Broadcasting Corporation ("CBC") discriminated against Mr Vlug, who is deaf, by failing to provide captioning of all of its programming. The Tribunal found that the standard at issue here was a CBC policy to use an incremental approach to captioning with the result that some, but not all of its English language network and Newsworld television broadcasts are captioned. The Tribunal concluded that:
United Nations
Thompson v Saint Vincent and the Grenadines (5 December 2000): The author was charged and convicted of murder and sentenced to death. A majority of the Committee was of the view that the facts before it disclosed a violation of article 6(1) of the ICCPR (Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.) and article 10(1) in relation to his conditions of detention (All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person.). Note two dissenting opinions (signed by five Committee members) relating to the correct interpretation of article 6 and mandatory death sentences. Toala & Ors v New Zealand (22 November 2000): The authors claimed that the Citizenship (Western Samoa) Act 1982 has created a situation of mass denationalisation of about 100,000 Samoans, in violation of articles 12(4) (No one shall be arbitrarily deprived of the right to enter his own country) and 26 (All persons are equal before the and are entitled without any discrimination to the equal protection of the law…) of the ICCPR, and denies them their lawful New Zealand citizenship. The Committee declared part of the communication inadmissible. The Committee found no violation of article 12(4) or article 26. However interesting discussion of issues of citizenship and nationality. Note dissenting opinion finding violations of article 17 (Unlawful interference with privacy, family etc) and article 23 (family is the natural and fundamental group unit of society…). Mahuika & Ors v New Zealand ((16 November 2000): The authors belong to the Maori people of New Zealand. They claim that the Treaty of Waitangi (Fisheries Claims) Settlement Act confiscates their fishing resources, denies them their right to freely determine their political status and interferes with their right to freely pursue their economic, social and cultural development. The authors claim that the right to self-determination under article 1 of the ICCPR is only effective when people have access to and control over their resources. They also claim that the Government's actions are threatening their way of life and the culture of their tribes in violation of Article 27 of the ICCPR (…minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practice their own religion, or to use their own language). The Committee found that on the facts before it there were no breaches of any of the articles of the ICCPR. Note good discussion of jurisprudence in relation to Article 27. Federal Discrimination DecisionsFEDERAL COURTSex DiscriminationLeanne Elliott -v- Prem Nanda & Commonwealth: Ms Elliott applied to the Court for enforcement of HREOC's decision upholding her sexual harassment complaint. HREOC had awarded her $15,000 compensation. Ms Elliott, who was Dr Nanda's receptionist between late 1995 and early 1996, alleged that she resigned as a result of his sexual harassment-including unwelcome physical contact, sexual allusions and propositions. On 11 April 2001 Moore J handed down his judgment. He concluded Dr Nanda had sexually harassed Ms Elliott and that the Commonwealth (the CES), by referring potential employees to Dr Nanda in the knowledge of previous complaints of sexual harassment against him, was also liable. He awarded her $15,100 compensation. He found Dr Nanda further liable to pay $5000 aggravated damages for his conduct after the complaint was made including failing to appear at the HREOC hearing. The orders concerning the payment of the compensation and costs are to be determined. Racial DiscriminationHagan v Trustees of the Toowoomba Sports Ground Trust: Mr Hagan had alleged that the refusal of the Trust to remove the name "The ES 'Nigger' Brown Stand" from a stand at the Athletic Oval was in breach of s.9(1) (distinction etc on the basis of race) and 18C (racial vilification) of the RDA. Drummond J had dismissed Mr Hagan's application finding that the stand was named in honour of a distinguished local footballer of Anglo-Saxon descent who died in 1972 and that the use of 'Nigger' in the name was not intended to have a racial connotation (certainly not for many decades prior to the complaint, if at all). He noted that a public meeting which included a cross section of the Aboriginal community had unanimously supported retention of the stand's name. On 23/2/01 the full court dismissed Mr Hagan's appeal against the decision of Drummond J. Costs were awarded against the applicant as the appeal was "without merit". Paramasivam -v- Wheeler & Others: On 16 February 2001 the full court dismissed Ms Paramasivam's appeal against the decision of Moore J. Ms Paramasivam, formerly an accountant at NSW Uni had complained about the handling by the respondents of correspondence from her and she alleged their refusals to investigate allegations made by her about the use of funds at NSW Uni was because of race. The respondents included the PM, government ministers and the NSW police commissioner. The full court found Moore J was right to summarily dismiss the application. Costs were awarded against Ms Paramasivam. FEDERAL MAGISTRATES COURTSex DiscriminationSarah Johanson v Richard Blackledge and Lucimar Blackledge t/a Michael Blackledge Meats [2001] FMC 6 (1 March 2001): The Court held that the sale by the respondents' butcher's shop of a bone shaped to resemble a large penis amounted to sexual harassment in the provision of goods in breach of SDA ss28A and 28G. This is the first case of sexual harassment based on the actual goods provided rather than on an overt sexual advance during the provision of the goods. The respondents were held to be vicariously liable for the acts of their employees. Racial DiscriminationMark Gibbs v Ian Wanganeen [2001] FMC 14 (6/3/01): In this case the Court held there was no breach of s18C of the RDA (racial vilification) when an Aboriginal prison inmate called a prison officer a "fucking white cunt" and "white trash", as the conversation had not taken place "otherwise than in private". Disability DiscriminationStephanie Travers v State of New South Wales [2001] FMC 18 (21 March 2001): Stephanie was a 12 year old student with spina bifida and resultant bowel and bladder incontinence attending Parramatta West Public School. She was not permitted to use the disabled toilet as it was reserved for another child with a disability but was required to use a mainstream toilet that was further from her classroom. The Court held the school had indirectly discriminated against her in breach of ss6 and 22 of the DDA by requiring her to use the mainstream toilet when there was no good reason for excluding her from the disabled toilet. State and Territory Anti-Discrimination LawLEGISLATIVE CHANGESACT - spent convictionsThe ACT has amended its Discrimination Act 1991 (ACT) to include spent convictions as a ground of discrimination. This amendment commenced operation on 20 September 2000. Qld - racial hatredQld has amended its Anti-Discrimination Act to make unlawful any public statement that incites hatred towards, serious contempt for, or severe ridicule of, a person or group on the basis of race or religion. Transgressors face six months jail or a $5 250 fine, while a corporation faces a maximum $26 250. CASESDisability DiscriminationWalker v Advance Supermarkets, Holzberger & John Jay's Investments Pty Ltd (20 December 2000): The ACT Discrimination Tribunal has ordered a supermarket owner to pay an employee $20,395.50 compensation after it paid him a reduced wage because of his mental impairment. The man was paid just $2.50 an hour for most shifts, considerably less than other adult and even junior colleagues. Mastaglia v Ramsay Health Care Australia Pty Ltd (2001) EOC 93-122 (1 December 2000): The WA EOT found that the respondent had unlawfully discriminated against the complainant on the basis of her impaired vision by rejecting her application to take a study course. She was awarded $1,500 compensation. Menzies v Waycott & Astrovac [Austr], VCAT A34 of 2000, 1/3/01: VCAT has found an employer guilty of discriminating against a worker on the basis of her transsexualism. Senior Member Lyons said 'I consider it is reasonable in all the circumstances to draw the inference that when the employer decided to terminate Ms Menzies' employment, Ms Menzies was treated less favourably because of her transsexualism than the employer would have treated a person who was not transsexual in the same or similar circumstances.' The discrimination was on the basis of impairment. He said 'transsexualism amounts to a failure by a part of the body to function properly and that the failure has a mental component.' He said that he did not believe transsexualism was covered by the attribute of sex. He said sex in the EO Act (Vic) had the straightforward meaning of the state of being male or female. Transsexualism fell outside that definition because it was the condition of one who firmly believes that he (or she) belongs to the opposite sex to his (or her) biological gender, he said. I v O'Rourke and Corinda State High School & Minister for Education for Qld QADT 1 31/01/01: The QADT found that the school had discriminated against a student in a wheelchair by not taking her on an excursion because of her impairment. The school had not proved that special services or facilities were required for the excursion that involved passage on a boat to take the students to a resort. Sex DiscriminationGliddon v Woodley (2001) EOC 93-114 (18 April 2000): A 17 year old young woman's complaint of sexual harassment in her first full-time job after leaving school was upheld by the WA EOT and she was awarded $16,466 compensation. She was employed in the respondent's home office as an assistant accountant/office manager having previously been placed there on work experience. Miller v Minister for Education (2001) EOC 93-115 (18 April 2000): The WA EOT found that the WA Education Department's promotion policy indirectly discriminated against the complainant as it emphasised mobility and transfer and women were less able to comply with it than men. She was awarded $4,000 compensation. Askey-Doran v Fremantle Women's Health Centre (2001) EOC 93-116 (21 July 2000): The respondent appointed the complainant, a male midwife, for its Alternative Birthing Services Program. When this appointment met with internal opposition to male midwives the respondent disclaimed that the complainant had been appointed. The WA EOT found that this amounted to unlawful discrimination and he was awarded $19,000. Amery & Ors v The State of New South Wales [2001] NSWADT 37: The applicants, 13 female teachers, alleged they had been indirectly discriminated against by the respondent State Department of Education for the State of New South Wales. The applicants were part of the pool of casual supply teachers who worked eight-week plus stints at the same school at any one time and who performed the same work as the permanents. The tribunal rejected the Dept's claim that the 13 women had chosen to become casuals and so be paid less when they resigned permanent employment to raise families. The tribunal found such an interpretation of the Anti-Discrimination Act (NSW) would be contrary to its object, as it would allow 'discriminatory conduct where the aggrieved person had no effective choice but to submit to the discriminatory regime or requirement.' Judicial member Peter King and members Kellie Edwards and Owen McDonald awarded the applicants a total of $242, 354.89. Migration lawLEGISLATIONMigration Legislation Amendment Bill (No. 1) 2001This Bill was passed by the House of Representatives on 7 Feb 01 and is now before the Senate. SummaryThe primary focus of the Bill is to address class actions brought in visa related matters. The government believes: (i) class actions are being abused in the migration jurisdiction; and (ii) class actions are inappropriate for migration matters. The provisions in this Bill generally bar class actions in visa-related matters before the Federal Court and the High Court. Abuse of class actions in the migration jurisdiction.The government believes class actions are being used to encourage large numbers of people to litigate, with the aim of obtaining a visa. It advises that advertisements are being placed in ethnic community newspapers using the eligibility for a bridging visa as a selling point for joining the class action. The government states that, "The changes in this Bill are necessary to combat the recent increase in the use of class actions in this way for people with no lawful authority to remain in Australia to prolong their stay and frustrate removal action. Other than through litigation, most of those people would have no other way of obtaining authority to remain in Australia and would otherwise have to be removed". The government says, "a pattern has also developed of people moving from one class action to another in order to further prolong their stay in Australia. For example, an analysis of half of the 700 members in the Macabenta class action showed that 40% had been a member of at least two class actions. Further, many people are joining class actions because they are out of time to make an individual application to the Federal Court . . . An analysis of a recent Federal Court class action indicates that 75% had joined the class action more than 6 months after the date of the decision that was being challenged; and 48% had joined more than 12 months after the date of the decision that was being challenged". Strict 35 day time limit for original applications to the High CourtAnother significant aspect of the Bill is the introduction of a strict 35 day time limit for original applications to the High Court in migration matters. The government is concerned that parties who miss the strict 28 day time limit for filing a migration review application in the Federal Court are nevertheless gaining access to the courts by instigating "original" applications in the High Court where such a time limit does not apply. Under the Constitution parties have the right to initiate action (such as a writ of certiorari, mandamus or prohibition) in the High Court under its original jurisdiction. The Bill provides that original applications to the High Court in migration matters shall be subject to a strict 35 day time limit. A concern about such a blanket rule is that it deprives a judge of the discretion to accept a case out of time no matter how meritorious the out of time application and substantive application might appear to be. Migration Legislation Amendment (Immigration Detainees) Bill 2001IntroductionOn 5 April 2001 the government introduced this Bill. The Minister, Mr Ruddock, stated that this Bill "is an integral part of a range of strategies which the government is introducing to ensure that immigration detention centres are safe environments for all persons within them, be they detainees, visitors or staff". SummaryThe Bill amends the Migration Act 1958 to:
CASESHamid v Minister for Immigration and Multicultural Affairs ([2001] FCA 26; 6 February 2001): In this case, the Refugee Review Tribunal ("RRT") had found that the applicant (who had applied for refugee status) had previously been detained and beaten on one occasion for his political opinion. However, it rejected the applicant's application for refugee status. Mansfield J concluded the RRT failed to express why it concluded the fear claimed by the applicant was not "well-founded" in light of its other finding. Re Minister for Immigration and Multicultural Affairs and Others; Ex Parte AB HCA 21 August 2000, 177 ALR 225: These proceedings involved an application before Kirby J for writs of prohibition, mandamus, injunction and certiorari in relation to a decision of the Refugee Review Tribunal. The application was dismissed. Discussion by Kirby J of the role of the Refugee Review Tribunal and the test to be applied in relation to a "reasonable apprehension of bias" application. Kirby J found that the momentary loss of temper on the part of a tribunal member did not give rise to a reasonable apprehension of bias. General LawNATIVE TITLEBodney v Westralia Airports Corporation Pty Ltd [2000] FCA 1609 (13 November 2000); Lehane J considered whether land acquired by a municipal body for an airport and subsequently acquired by the Commonwealth was subject to native title. He further considered whether the Crown owed a general duty to indigenous people in relation to dealings with land. Yorta Yorta Aboriginal Community v Victoria ([2001] FCA 45; 8 February 2001); The Full Federal Court considered the principles to be applied in determining whether the impact of European settlement in an area subject to a claim under the Native Title Act 1993 (Cth) was such that the forebears of the claimants had lost their traditional connection with the land and whether native title could revive. The majority, Branson and Katz JJ (Black CJ dissenting), considered that the trial judge's finding that there was a period of time between 1788 and the date of the appellants' claim during which the relevant community lost its character as a traditional Aboriginal community was a finding that it was open to the judge to make and that a case had not been made out for disturbing that finding. In their view the trial judge's finding provided a complete answer to the appellants' claim and for that reason they dismissed the appeal. SEX DISCRIMINATION ACTMcBain v State of Victoria [2000] FCA 1009 (28 July 2000), 177 ALR 320: The Federal Court considered whether section 8(2) of the Fertility Treatment Act 1995 (Vic), which restricts the application of "treatment procedures" (ie. artificial insemination and fertilisation procedures) to women who are married or in defacto relationships with a man, was inconsistent with s.22 of the SDA. Justice Sundberg held that section 8(2) was inconsistent and therefore inoperative by reason of section109 of the Constitution. OTHERRe Bryant; ex parte Guarino ([2001] HCA 5; 14 February 2001); In this case, Hayne J concluded that the Federal Magistrates' Court validly exercised the judicial power of the Commonwealth. Stoelwinder v Southern Health Care Network [2000] FCA 444 (7 April 2000), (2001) 177 ALR 501; In this case, an employee alleged that their employer had made a misrepresentation in breach of s52 of the Trade Practices Act whilst negotiating the terms of a new employment contract. An issue was raised as to whether the misrepresentation involved activities "in trade or commerce". In rejecting a strike out application, Finkelstein J indicated that he regarded negotiations for a contract of employment or a variation of such a contract as being matters "in trade or commerce". This is of relevance to our practice by reason of the decision of Heerey J in Court v Hamlyn Harris [2000] FCA 1870, where his honour found that certain activities were excluded from the ambit of the DDA on the basis that they were not activities within trade or commerce. Finkelstein J's judgement, along with other first instance judgments of the Federal Court, indicate that Heerey J adopted an unnecessarily narrow view of the term "trade or commerce". Australian and International Privacy LawAustraliaThe Privacy Amendment (Private Sector) Act 2000 (Cth) received Royal Assent on the 20 December 2000 and will come into force on 21 December 2001. The new act regulates the way the private sector organisations collect, use, keep secure and disclose personal information. The Act covers most private sector organisations, with significant exceptions such as small business (businesses with an annual turnover of less than $3 million), political parties, state and territory authorities and employee records relating to a current or former employment relationship. Small business can opt in to the scheme. The legislation is based on the National Privacy Principles. However, organisations may develop and enforce their own Privacy Codes and even appoint their own adjudicator to deal with privacy complaints, subject to approval by the Privacy Commissioner. The Privacy Commissioner has also released Draft Code Development Guidelines to assist organisations in developing their own Privacy Codes under the Privacy Amendment (Private Sector) Act 2000. The Draft Guidelines are open to consultation until 15 June 2001. United StatesIn Re DoubleClick, United States District Court, Southern District of New York, Buchwald J, (28 March 2001). The US District Court has found that an advertising company's collection of data from Internet users using "cookies" and other technologies does not violate federal laws regulating privacy and access to computers. DoubleClick collects various types of data from Internet users, including personal data entered on web sites, records of the information requested by users of the site and monitoring of movement throughout a web site. In addition, the user's computer is tagged by a "cookie", a piece of software code, that allows DoubleClick to identify the user when he or she accesses an affiliated site. This information is compiled to build profiles of users and target them with specific advertising. Judge Buchwald found that these practices did not violate federal laws, and that there was no legislative intention behind federal laws to prohibit the Internet data collection practices of companies such as DoubleClick. This is the first time a US federal court has considered the applicability of federal privacy laws to Internet advertising. Other cases against DoubleClick are pending in California and Texas, alleging breaches of state privacy laws. Ferguson v. City of Charleston [2001] 186 F.3d 469 (21 March 2001) This case involved a Public Hospital in Charleston whose staff offered to cooperate with city police in prosecuting mothers who tested positive for drug use. Hospital staff identified and urine tested pregnant patients suspected of drug use and provided the results to police. Patients who tested positive were arrested and prosecuted for drug offences and/or child neglect, depending on the stage of the defendant's pregnancy. The petitioners were obstetrical patients arrested after testing positive for cocaine. They argued, inter alia, that warrantless and non-consensual drug tests conducted for criminal investigatory purposes were unconstitutional searches. In what is seen as an important case on the right to medical privacy and the rights of pregnant women, the Supreme Court found for the petitioners. The Court held that state hospital's performance of a diagnostic test to obtain evidence of a patient's criminal conduct for law enforcement purposes is an unreasonable search if the patient has not consented to the procedure. The Court found that the interest in using the threat of criminal sanctions to deter pregnant women from using cocaine cannot justify a departure from the general rule that an official non-consensual search is unconstitutional if not authorised by a valid warrant. Canada The Personal Information Protection and Electronic Documents Act 2001 sets out ground rules for private sector organisations to collect, use or disclose personal information collected by them in the course of their commercial activities. From the beginning of this year, the Act applies to all information collected by federally regulated organisations or sold across provincial and territorial boundaries. Personal health information will not be covered until January 1, 2002 and information collected or used within a province or territory will not be covered until January 1, 2004. The federal government can exempt organisations or provinces with substantially similar privacy laws, and the Federal Privacy Commissioner can hear receive and investigate complaints relating to non-compliance. Industrial LawCASESStellar Call Centres Pty Ltd v Community & Public Sector Union [2001] FCA 106 Ryan, Lee, Branson JJ The effect of this decision is that outsourcing, which involves engaging a new employer to provide services that are merely ancillary to the first employer's business, will not lead to the awards or certified agreements that applied to the first employer binding the new employer. Australian Workers' Union v John Holland Pty Ltd [2001] FCA 93 Goldberg J Held (dismissing the application): (1) The words 'or for reasons that include a prohibited reason' in the Workplace Relations Act 1996 (Cth) s 298K, mean that it is not necessary for a reason to be a substantial and operative reason for an employer's action. In order to establish a contravention of s 298K(1), it is only necessary to find that the prohibited reason was one of the reasons for the action of the employer. (2) The applicant's union membership was a significant factor in the sequence of events which led to the termination of the applicant's employment, but that factor, of itself, did not mean it was a reason for that termination. The termination of the applicant's employment was precipitated by pressure applied by a union unconnected with the applicant. In particular, it was the desire to end stoppages on the respondent's work sites which was the major reason for the termination of the applicant's employment. The other reason related to the failure to comply with procedures regarding the recruitment of labour and the relevant enterprise bargaining agreements. In those circumstances, there was no contravention of the Workplace Relations Act 1996 (Cth) s 298K. |
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