FEDERAL COURT OF AUSTRALIA Finance Sector Union of Australia v Australia & New Zealand Banking Group Limited [2002] FCA 631 INDUSTRIAL LAW – Alleged injury of employee in her employment or alteration of her position to her prejudice – Formal counselling and warning of employee – Whether this constitutes such an injury or alteration – Disciplinary action taken after stoppage of work in which employee participated – Whether stoppage was "protected action" – Whether employer has established that such participation was not a reason for the disciplinary action – Whether disciplinary action infringed the statutory freedom of association provisions – Media interviews given by employee in her capacity as National President of registered organisation – Whether earlier informal counselling about media interviews was an injury or alteration – Whether employer has established that employee's office was not a reason for the disciplinary action. Workplace Relations Act 1996: ss 170ML, 170MM, 170MU, 298K, 298L, 298V. General Motors Holden Pty Ltd v Bowling (1976) 12 ALR 605 considered and applied FINANCE SECTOR UNION OF AUSTRALIA v AUSTRALIA AND NEW ZEALAND BANKING GROUP LIMITED N1512 OF 2001 WILCOX J 17 MAY 2002 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N1512 OF 2001 BETWEEN: FINANCE SECTOR UNION OF AUSTRALIA APPLICANT AND: AUSTRALIA & NEW ZEALAND BANKING GROUP LIMITED RESPONDENT JUDGE: WILCOX J DATE OF ORDER: 17 MAY 2001 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. It be declared that: (a) the informal counselling given to Ms Joy Buckland by Mr Ian Johnston, on behalf of the respondent, Australia & New Zealand Banking Group, in March 2000, in relation to a Sun-Herald article naming Ms Buckland, did not constitute a contravention by the respondent of s 289K of the Workplace Relations Act 1996; (b) the formal counselling given to Ms Buckland by Mr Graeme James Inglis, on behalf of the respondent, on 25 September 2001 and the letter of warning given to Ms Buckland by Mr Inglis, on behalf of the respondent, on 5 October 2001 each constituted infringements by the respondent of both s 170MU(1) and s 298K(1) of the said Act; and (c) the conduct of the respondent did not contravene s 298M of the said Act. 2. The matter of imposition of penalties is reserved. 3. The parties file and serve written submissions in relation to penalties in accordance with the following timetable: (a) applicant's submissions not later than Tuesday, 28 May 2002; (b) respondent's submissions not later than Friday, 7 June 2002; (c) any submissions in reply by Monday, 17 June 2002. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N1512 OF 2001 BETWEEN: FINANCE SECTOR UNION OF AUSTRALIA APPLICANT AND: AUSTRALIA & NEW ZEALAND BANKING GROUP LIMITED RESPONDENT JUDGE: WILCOX J DATE: 17 MAY 2002 PLACE: SYDNEY REASONS FOR JUDGMENT WILCOX J: 1 This is an application by Finance Sector Union of Australia ("FSU"), an employee organisation registered under the Workplace Relations Act 1996 ("the Act"), for the imposition of penalties upon an employer, Australia & New Zealand Banking Group Limited ("ANZ" or "the Bank"). 2 The application arises out of two separate Parts of the Act (Part VIB and Part XA). It is convenient immediately to mention the scheme of those Parts and the provisions upon which the applicant relies. The relevant legislation (i) Part VIB 3 Part VIB is headed "Certified Agreements". Section 170L states the object of the Part: "to facilitate the making, and certifying by the Commission, of certain agreements, particularly at the level of a single business or part of a single business". The "Commission" is the Australian Industrial Relations Commission, established under s 8 of the Act. An agreement, when certified, binds the employer and all persons whose employment is at any time subject to the agreement: see s 170M(1). It prevails over any award or order of the Commission, to the extent of any inconsistency: see s 170LY(1). 4 Division 8 of Part VIB lays down detailed rules concerning negotiations for certified agreements. The Division adopts the concept of a "bargaining period". This may be initiated by the employer, an employee organisation or one or more individual employees: see s 170MI(1). Written notice is required: see s 170MI(2). The notice must include certain particulars: see s 170MJ. The bargaining period begins at the expiration of seven days after the notice is given: see s 170MK. Thereafter "protected action" may be taken: see s 170ML(1). This is, by force of s 170MT, rendered substantially immune from legal action. 5 During a bargaining period, employee organisations, their members, officers and employees, and also negotiating employees of the employer to whom the notice is given, are entitled, "for the purpose of … supporting or advancing claims made in respect of the proposed agreement" or responding to a lockout by the employer, "to organise or engage in industrial action directly against the employer". Any such action is "protected action": see s 170ML(2). Section 4 of the Act contains a definition of "industrial action". I will refer to that definition in considering one of the arguments put by the Bank. 6 Section 170MM(1) and (2) exclude certain activities from being "protected action". Particular industrial action is not "protected action" if it is engaged in, or organised, "in concert with one or more persons or organisations that are not protected persons" or if it is organised, or intended to be engaged in, "other than solely by one or more protected persons". The term "protected person" is defined by s 170MM(3) to mean: "(a) an organisation of employees that is a negotiating party; or (b) a member of such an organisation who is employed by the employer; or (c) an officer or employee of such an organisation acting in that capacity; or (d) an employee who is a negotiating party." 7 The significance of s 170MM, for present purposes, is that the Bank argues that a particular stoppage of work and a particular stop-work meeting were not "protected action" because the stoppage was joined in, and the meeting attended, by FSU members employed by Westpac Banking Corporation ("Westpac") and National Australia Bank ("NAB"), as well as by ANZ employees. 8 Section 170MN proscribes industrial action during the operation of a certified agreement and s 170MO imposes notice requirements in relation to protected action. These provisions are not presently relevant. Nor is it necessary to refer to ss 170MP to 170MS. However, s 170MU is important. It is relied on in this case. That section relevantly provides: "170MU(1) An employer must not: (a) dismiss an employee, injure an employee in his or her employment or alter the position of an employee to the employee's prejudice; or (b) threaten to dismiss an employee, injure an employee in his or her employment or alter the position of an employee to the employee's prejudice; wholly or partly because the employee is proposing to engage, is engaging, or has engaged, in protected action. (2) … (3) In proceedings under section 170NF for an alleged contravention of subsection (1) of this section, it is to be presumed, unless the employer proves otherwise, that the alleged conduct of the employer was carried out wholly or partly because the employee was proposing to engage, was engaging, or had engaged, in protected action." 9 The claim made by FSU in the present case is that the Bank injured an employee, Joy Buckland, in her employment with the Bank, or altered her position to her prejudice, and the Bank has not established that this conduct was not wholly or partly attributable to the fact that Ms Buckland had engaged in protected action. (ii) Part XA 10 Part XA of the Act is headed "Freedom of Association". Section 298A states the objects of the Part: "(a) to ensure that employers, employees and independent contractors are free to join industrial associations of their choice or not to join industrial associations; and (b) to ensure that employers, employees and independent contractors are not discriminated against or victimised because they are, or are not, members or officers of industrial associations." 11 Section 298B defines certain terms, for the purposes of Part XA. I will refer to some of them later. 12 Division 2 of Part XA identifies the conduct to which the Part applies. It includes "conduct by a constitutional corporation": see s 298G. It is common ground that the Bank is such an entity. 13 Division 3 relates to conduct by employers. The scheme of the Division is that s 298K proscribes certain conduct by an employer, if "for a prohibited reason"; and s 298L specifies prohibited reasons. If an employer engages in proscribed conduct for a prohibited reason, remedies are available under Division 6. They include imposition of a penalty: see s 298U(a). 14 Section 298V shifts the burden of proof in relation to some proceedings under Division 6. It provides: "298V If: (a) in an application under this Division relating to a person's or an industrial association's conduct, it is alleged that the conduct was, or is being, carried out for a particular reason or with a particular intent; and (b) for the person or industrial association to carry out the conduct for that reason or with that intent would constitute a contravention of this Part; it is presumed, in proceedings under this Division arising from the application, that the conduct was, or is being, carried out for that reason or with that intent, unless the person or industrial association proves otherwise." 15 Section 298K(1) provides: "(1) an employer must not, for a prohibited reason, or for reasons that include a prohibited reason, do or threaten to do any of the following: (a) dismiss an employee; (b) injure an employee in his or her employment; (c) alter the position of an employee to the employee's prejudice; (d) refuse to employ another person; (e) discriminate against another person in the terms or conditions on which the employer offers to employ the other person." 16 It is contended, in the present case, that the Bank injured Ms Buckland in her employment, or altered her position to her prejudice, and the Bank has failed to negative three reasons prohibited under s 298L(1): (i) Ms Buckland was "an officer, delegate or member of an industrial association": see para (a); (ii) Ms Buckland, being "a member of an industrial association that is seeking better industrial conditions", was dissatisfied with her conditions: see para (l); (iii) Ms Buckland, being "an officer or member of an industrial association", did an act (speaking to the media) "for the purpose of furthering or protecting the industrial interests of the industrial association, being an act that is … lawful" and within the authority conferred on her by the industrial association under its rules: see para (n). The relevant "industrial association" was FSU. 17 The applicant also relies on s 298M. This section relevantly provides: "An employer … must not (whether by threats or promises or otherwise) induce an employee … to stop being an officer or member of an industrial association." The facts (i) Background 18 Ms Buckland has been employed by the Bank since 1975, subject to a short break in 1986-87. Since June 1993 she has served as branch manager at Padstow, a Sydney suburb. She manages seven other staff who work varying numbers of hours, each week, at the branch. 19 Ms Buckland currently holds two senior honorary positions in FSU. Since 1993 she has been President of the New South Wales/Australian Capital Territory Branch of the organisation. In 1997 she also became National President and still serves in that position. 20 In 1995 Ms Buckland was seconded by ANZ to work with FSU, for a period exceeding six months, in managing "consultative forums across business units", the purpose being to improve staff morale and the relationship between the Bank and its employees. 21 As might be expected, it has been necessary for Ms Buckland, from time to time, to seek leave from the Bank to absent herself from work in order to attend to FSU duties. The evidence shows this has sometimes caused tension. Surprisingly, there appears not to have been any pre-agreed protocol, so ad hoc decisions have had to be made each time leave was sought. However, it appears that, at least until mid-2001, there was mutual respect between Ms Buckland and her relevant superiors. So the issue of leave was resolved each time without substantial difficulty. 22 On one occasion, in September 1999, Ms Buckland was interviewed by her Acting Regional Manager, Carmelina Disibio, about an article that had been published in the Sydney Morning Herald, under the by-line of Brad Norington, concerning a union protest rally outside the Prime Minister's Sydney office. Ms Buckland spoke at the rally. She was identified in the article as "a branch manager for the ANZ Bank for eight years" and was quoted as saying: "I find work is becoming more intensified. We are expected to do more work in less time and my fear is that these new laws would lessen our power in the workplace. We would have less security because Mr Reith's laws would encourage more individual contracts that would negate agreements that we negotiated in good faith." 23 It appears from the record of interview with Ms Disibio that Ms Buckland said at that time that she had asked the journalist not to mention the ANZ Bank. Ms Buckland repeated that claim in her evidence before me. She said she spoke by telephone to Mr Norington. She went on: "I didn't mention ANZ Bank to him. They knew that I worked for the ANZ Bank but I did not say it. I said I did not want them to mention where I worked." (ii) The Sun Herald article 24 A more substantial incident occurred a few months later. On 19 March 2000 the Sun-Herald published an article headed "The toughest job in town". It bore the by-line of Andrew West and was illustrated by a photograph of Ms Buckland, looking stressed. The article read: "BANKERS' hours? Hah! That's a laugh these days. Not for Joy Buckland the leisurely 10am start of her pinstripes predecessors. This 43-year-old Sydney bank manager is in her office by 8.30am and is still there at 6.30pm. But she is not asking for sympathy because it seems much of the workforce shares her plight. According to a survey, 88 per cent of Australians say stress in the workplace is higher than it was 10 years ago. According to Recruiters Australia Limited, only 60pc of Sydney employees believe their bosses are committed to relieving workplace stress. In Ms Buckland's case, it is a dual problem because financial services is rated the most stressful industry in which to work, compounded by ever increasing hostility toward banks. 'Not a day would go by when I don't have to go out to the counter and try to deal with some aggro by a customer,' said Ms Buckland. 'The point is, I often agree with them. Banking services are suffering.' Indeed, in the past 10 years, Westpac, ANZ, NAB and the Commonwealth banks have shed about 25,000 jobs, at the same time as chief executives' salaries, with stock options, have increased above $3 million. Ms Buckland, also national president of the Finance Sector Union, representing about 80,000 employees, said bank tellers and call centre staff bore the brunt of public fury. 'I have to try to explain to them about market-driven demands and how the main goal is profit and a return to the shareholders, which has very little to do with the community's benefit,' she said. The study also found that 78pc of people believed modern workplace culture promoted excessive work hours. Ms Buckland said that despite 25 years in banking, seven in management, and a masters degree, she was now studying for a diploma in financial planning – in case she was retrenched. 'I have seen some of the most skilled people – the most loyal to the institution – retrenched,' she said. 'It's all just number-crunching, so no wonder there's stress.' 25 In an affidavit read in this case, Ms Buckland deposed that she spoke to Mr West at the request of Geoffrey Derrick, Secretary of the New South Wales/Australian Capital Territory Branch of FSU. She explained: "The issues of stress at work is [sic] of substantial concern to the FSU and its members. The FSU takes the view that it is an important Health and Safety issue and it takes every opportunity to raise public awareness of the issue." 26 The article was seen by Ian Johnston, District Manager, Consumer Financial Services, of the Bank. At that time, Mr Johnston was responsible for branches in the Southern Sydney district, which included Padstow branch. As such, he was Ms Buckland's line manager. 27 On the day following publication of the article, Mr Johnston mentioned it to two senior executives of the Bank. As a result, he had a telephone conversation with Ms Buckland in which he informed her the article was inappropriate. Ms Buckland pointed out that ANZ was not named in the article and she was quoted as National President of FSU. Mr Johnston responded: "The article says that you are a bank manager. You are a high profile figure in the Padstow business community because of your association with the Padstow Small Business Committee in recent years and also to your customers. You would have been instantly recognised as the ANZ Padstow branch manager by the photograph." 28 Ms Buckland conceded some customers and business people in Padstow may have recognised her. Mr Johnston repeated his concern. He requested Ms Buckland "not to be involved in any more articles where you could be identified as an ANZ bank manager". 29 Mr Johnston gave evidence that he did not take notes of this conversation. He treated the matter as "a person to person conversation". He said that, if the incident had been repeated, "I would have been disappointed" and "I would make it formal". Mr Johnston said his reaction to any subsequent incident would depend upon what occurred, but there would be formal procedures on a second occasion "because I had already spoken to her and put my point of view to her so that she would realise what she was doing in her capacity as a branch manager". 30 Mr Johnston made it clear that his problem with the article was that Ms Buckland "was the identifiable branch manager at Padstow, making comments about her employer". He said in his affidavit: "I was concerned that the newspaper article could have an adverse effect on the business of Padstow branch. I was also concerned that the comments attributed to Ms Buckland in the article described her daily encounters with customers and the retrenchment of skilled and loyal employees in circumstances where I believed she could be readily identified by customers of the Padstow branch. It was my understanding that this is contrary to the Bank's policy of restricting comments made by employees to the media." 31 In cross-examination, Mr Johnston said: "You would agree with me that in any article where Ms Buckland was named, she would be identifiable to people in Padstow as the ANZ branch manager? --- Yes. So the situation was that in order to avoid that recognition, she simply would not be able to be named in any media article? --- It would be inappropriate for her to be named specifically when she's talking about her own branch. That was what you intended to convey to her in the conversation you had with her? --- Correct." 32 Mr Johnston later explained that, even though Ms Buckland was speaking as FSU President, "she was also the branch manager of Padstow and the comments she made I didn't think would help the business at all". (ii) The appointment of Mr Inglis 33 Graeme Inglis, an employee of ANZ since 1984, became District Manager, Consumer Financial Services, in October 1999. On 1 August 2001 he acquired responsibility for the Padstow branch, relieving Mr Johnston. Mr Inglis' immediate superior was Ken Parry, Head of Consumer Financial Services for New South Wales and the Australian Capital Territory. 34 The relationship between Mr Inglis and Ms Buckland got off to a poor start. Mr Inglis visited the Padstow branch on 31 July, the day before the restructure took effect, and had a conversation with Ms Buckland. Mr Inglis and Ms Buckland gave different accounts of what was said. In her affidavit, Ms Buckland said: "I first met Mr Inglis on 31 July 2001, when he visited the Branch. At my first meeting with Mr Inglis, I advised him of my positions within the FSU. I outlined to Mr Inglis my general responsibilities as President of the Union. Mr Inglis then said words to the following effect: 'I will never see eye to eye with you about the Union.'" 35 Mr Inglis gave this evidence in his affidavit: "Toward the end of our conversation, we had an exchange to the following effect: Ms Buckland: 'By the way, do you know I am President of the FSU?' Me: 'Yes. That won't be a problem as long as it doesn't interfere with your work here at Padstow branch.' Ms Buckland: 'It's not the Bank that has a problem with my position in the Union, it is Ken Parry.' Me: 'If you have a problem with Ken Parry, then you will more than likely have a problem with me. You and I probably won't see eye to eye about the way the Union operates.'" 36 Neither witness was cross-examined about this conversation. So it is not possible for me to determine exactly what was said. That does not matter. What does matter is that neither participant endeavoured to reach an understanding with the other about the consequences of Ms Buckland's dual responsibilities. Had such an understanding been reached at this meeting, it may have avoided subsequent conflicts. (iii) The industrial dispute 37 At the time Mr Inglis took over responsibility for the Padstow branch, there was a dispute between FSU and ANZ regarding a new certified agreement. On 1 May 2001 Anthony Beck, National Secretary of FSU, had given ANZ a notice of initiation of bargaining period, under s 170MI(2) of the Act. The notice had stated that FSU intended to try to make a new certified agreement and listed twelve matters intended to be covered by the agreement. The listed matters included salaries and remuneration issues together with matters such as "staffing, workloads and performance targets, hours of work issues and job security." 38 Apparently there had been negotiations about a new certified agreement. But ANZ had withdrawn from them and unilaterally granted a 4% wage increase to some staff. 39 A document entitled "Line Managers' Industrial Action Briefing Kit", which Mr Inglis had received in June or July 2001, indicated the Bank knew that FSU did not accept its position. This document envisioned the possibility of industrial action. It told managers to "remain close to your staff" and continue to promote ANZ's "key messages": "• ANZ is no longer participating in enterprise bargaining negotiations with the union. • ANZ has announced it will pay the 4% increase in July, existing conditions will remain secure and issues of importance to staff will continue to be addressed. • With enterprise bargaining discussions concluded and a 4% pay increase guaranteed there is nothing to be gained by staff taking industrial action." 40 The Bank's fear of industrial action was realised. FSU embarked upon a series of stop-work meetings. They were organised on a regional basis and involved FSU members employed by Westpac and NAB, as well as ANZ. It appears certified agreements between FSU and each of the four major banks had expired about the same time. FSU had reached agreement with the Commonwealth Bank, but had not been able to do so with the other three banks. 41 On 21 August 2002 Paul Schroder, Assistant National Secretary of FSU, notified ANZ, pursuant to s 170MO of the Act, that FSU intended to organise and engage in protected industrial action, pursuant to s 170ML of the Act. The particulars set out in the notice included the following: "(a) The FSU, its officers, employees and members intend on 27th August, 2001 to organise industrial action specified in paragraphs (d) and (g) below. (b) Intended industrial action will take place at all of your workplaces in the Local Government Areas of the City of Bankstown, City of Hurstville, Municipality of Kogarah, City of Rockdale, Shire of Sutherland and the City of Canterbury. (c) The day on which the intended industrial action will be taken is the 27th August, 2001. (d) The nature of the intended industrial action to be engaged in by members in the workplaces in the Local Government Areas specified in (b) above is to stop work and to attend stop work meetings." 42 Padstow is within the City of Bankstown. (iv) The stoppage of work 43 On 22 August 2001 Mr Parry requested Mr Inglis to ascertain which staff would attend a stop-work meeting on 27 August. Mr Inglis understood the purpose of this request was to enable him (Mr Inglis) to ensure all branches in his district would be adequately staffed during the stoppage. Mr Inglis said in his affidavit: "I believe I am entitled to ask the question although staff have the right not to answer." 44 At some stage, the date is not revealed by the evidence, FSU nominated Hurstville Civic Centre as a venue for a stop-work meeting on Monday, 27 August. 45 On the afternoon of 22 August, Mr Inglis visited the Padstow branch. He spoke to Ms Buckland. Once again, there is some dispute as to the precise terms of the conversation but the differences do not matter. It is common ground that Mr Inglis asked Ms Buckland which of her staff would be attending the stop-work meeting and she replied she did not know. It is also agreed Ms Buckland pointed out to Mr Inglis that individuals were not bound to tell the Bank what they intended to do and Mr Inglis acknowledged this, but told Ms Buckland that, as branch manager, it was her job to find out who was going. 46 According to Mr Inglis, he then separately interviewed each of the other three staff members on duty. According to him, he spoke to Ms Buckland once again, informing her he had gained "the impression that information I've been passing on to you has not been fed down to your staff". He said Ms Buckland denied that. 47 During the course of his oral evidence, Mr Inglis was asked to identify the information he thought Ms Buckland had not passed on to her staff. He mentioned four matters: the 4% wage rise, the staff relief model, PAC (performance above contract i.e. overtime) and training. All of these initiatives, he said, were already in place on 22 August. He was asked whether there was "a document that was sent out from higher up down to branches as a briefing document for branch managers or to put on the staff noticeboard or anything like that". He answered "no". Mr Inglis also said his real concern was that Ms Buckland was not "actually promoting what the Bank's putting forward as being a positive thing for the employees". I understood by this that Mr Inglis was concerned that Ms Buckland was not seeking to persuade her staff that, contrary to FSU's declared position, the Bank's position was industrially acceptable. 48 It was Mr Inglis' practice to conduct a weekly telephone conference with his branch managers. He held such a conference on the morning of 23 August. The proposed stoppage was discussed. Although other people participated, only Ms Buckland and Mr Inglis provide evidence of what was said. Once again, their accounts differ. However, it is common ground that Mr Inglis asked each manager to indicate what his or her staff intended to do about the stoppage and that, when he reached Padstow, Ms Buckland told him that, after his visit to the branch the preceding day, the staff "have definitely made up their minds" or "are very clear" about what they would do on Monday. Mr Inglis asked whether they were going to come to work. Ms Buckland responded: "No, they are most upset". It is also common ground that Mr Inglis told Ms Buckland that it was her job to "keep the branch open" or "assist me in keeping the branch open" and that she replied: "It is not my management style to force people." Ms Buckland says she added: "I want them to be committed and loyal to the branch. Customers can tell when branch morale isn't good." 49 Mr Inglis arranged for two relief staff to attend at Padstow on the following Monday, the day of the stop-work meeting. They were Jennie Gannon, a District Manager from Canberra, and Sharyn Best of Kogarah branch. He also engaged two temporary staff. These people attended at Padstow on 27 August and operated the branch until the return of the regular staff from the stop-work meeting. 50 The Padstow staff attended the stop-work meeting at Hurstville Civic Centre. It commenced at 9am and finished about 11.45am. Ms Buckland addressed the meeting and stayed to talk with some members at its end. She returned to the branch with another employee, Monique Hannan, about 1pm. The other staff members arrived about 20 minutes later. 51 During the course of his evidence, Mr Inglis voiced two complaints about Ms Buckland's conduct in respect of the stoppage, apart from her failure to persuade her staff not to participate in it. One complaint was that Ms Gannon had not been created as supervisor on the branch computer system. This meant she could not immediately log onto the system and create other staff on the system. The problem was rectified after about 30 minutes. Mr Inglis thought Ms Buckland ought not to have allowed this to occur, but he declined to describe her omission as "sabotage". The other complaint concerns an acrimonious exchange between Ms Gannon and Ms Buckland after the latter's return to work. Apparently Ms Buckland wished the temporary staff to do a cash count before they left. Ms Gannon wished them to leave immediately, so as to avoid the Bank having to pay them for a lunch break. 52 Ms Gannon and Ms Best made affidavits that tend to support Mr Inglis' complaints against Ms Buckland in respect of these matters. However, the salient points of their evidence were denied by Ms Buckland. Counsel on both sides – rightly in my opinion – thought the complaints peripheral to the case. Neither Ms Gannon nor Ms Best was called for cross-examination and Ms Buckland was not cross-examined about these matters. The other people who would, presumably, have been able to speak about them were not called to give evidence. Under these circumstances, I make no finding about the validity of either of Mr Inglis' complaints. (v) The counselling meeting 53 It is common ground that, late in the afternoon of 27 August, Mr Inglis informed Ms Buckland that he proposed to contact the Bank's Human Resources Department. On 30 August Mr Inglis advised Ms Buckland that she was required to attend a formal meeting involving himself and a Human Resources representative, to be held on 25 September 2001. 54 Ms Buckland attended that meeting, in company with Mr Derrick of FSU. Mr Inglis attended with Linda Stanley, a Human Resources adviser. A minute was taken, apparently by Ms Stanley. In her evidence, Ms Buckland did not accept it was entirely accurate. She said some statements are recorded out of context. 55 Five matters were discussed at the meeting. It is common ground that the first three matters are only marginally relevant to the present proceeding. They were a comment allegedly made by Ms Buckland to Mr Inglis on 25 July 2001: "You were setting me up to fail"; the meeting of 22 August 2001 at which Mr Inglis complained about Ms Buckland allegedly not passing on to her staff information about the bank's position on flexible relief, PAC and training; and the response of Ms Buckland to Mr Inglis' inquiry at the telephone conference of 23 August 2001 concerning the intentions of Padstow staff in relation to the stoppage proposed for 27 August. 56 The fourth matter was a complaint by Mr Inglis that Ms Buckland "had failed to take appropriate steps in ensuring that Padstow branch would open for business on 27/8/01, and that her actions after returning to work were not acceptable." The minute contains this statement by Mr Inglis. "GI stated to JB as a union member, you obviously have the right to take protected industrial action and we do not argue with that. However, as a branch manager you have an obligation to ensure the branch remains open if this is the decision of the ANZ Bank. Where this right to take industrial action and your obligation to keep the branch open intersect, you must ensure that these actions do not conflict. You failed to avoid this conflict in dealing with the issue on 27/08/01, and it is expected that you will not fail again. 57 The minute records this response: "JB stated that that [sic] we did not seem to appreciate that fact that she had a right to protest. LS acknowledged JBs rights as an FSU member to take industrial action, however emphasised that she also has an obligation as a manager to ensure the branch opened requested by management." 58 The minute goes on to deal with events after the return-to-work. 59 The fifth matter concerned an article that had appeared in the Sydney Morning Herald headed: "Job insecurity tops list of women's woes". It was published on 10 September 2001, under the by-line of Adele Horin. The article featured a small photograph of Ms Buckland captioned: "Joy Buckland: women under pressure to cut their hours of work or do unpaid overtime." 60 The article dealt generally with women's workplace insecurity. It reported the result of a survey conducted by the Australian Council of Trade Unions ("ACTU") and quoted comments by Sharon Burrow, the ACTU President. Ms Horin wrote: "One traditionally female-dominated industry where women workers are feeling the pinch of job insecurity is banking." She went on to quote two statements by Ms Buckland, who was identified as "a bank manager at Padstow". They were: "There's psychological warfare going on in banks, pressure to do more with less, and our staff, mostly women, are feeling a loss of control"; and "Just last week a manager threatened to replace female staff with temps." The article said Ms Buckland "did not want her bank to be named". Ms Buckland said in evidence this was indeed the case. She had been asked by the FSU Branch Assistant Secretary, Mel Gatfield, to speak to Ms Horin in order to give the perspective of women in the banking industry about job security. She said she thought it was "an important issue for FSU members", so she agreed to the interview. She explained: "I did so because of my position as FSU member and Officer. I did not mention the name of the Bank at which I worked in the course of the interview." 61 At the meeting of 25 September 2001, particular complaint was made to Ms Buckland about her reported statement: "last week a manager threatened to replace female staff with temps". Ms Buckland asked the reason for the complaint. The minute goes on: "LS then stated that it was against bank policy for staff other than those approved by head office to make statements to the media, and once again reminded her that she had been warned regarding this issue about 12 months ago. JB stated that she did not mention ANZ at all, and that is what she understood the warning to be about. GI advised JB that she is readily identifiable as the ANZ manager at Padstow to customers and staff who read the paper and as such her unauthorised comment is in breach of ANZ discretions policy. In future she is not to talk to any media publication in her capacity as or where identified as branch manager. Any further non-compliance with this directive may result in her dismissal." 62 The minute records that Mr Inglis summarised his expectations of Ms Buckland as follows: "1. Conducting herself in a professional manner during discussions, in meetings and other public forum; 2. That the branch is operated in the most effective and efficient manner possible, including following directions from GI or senior management; 3. Staff receive all relevant communication passed down from GI and the bank which allows them to make fully informed decisions; and 4. Any future media contact is to go through the correct channels according to ANZ policy." (vi) The visit of 5 October 63 On 5 October 2001 Mr Inglis handed Ms Buckland a letter referring to the meeting of 25 September which, he said, "outlines the concerns raised and confirms our expectations of you in your role as branch manager". The letter canvassed the five matters raised at the meeting. In relation to the last two, it said: "• That on the day of industrial action on 27 August 2001, you failed to take appropriate steps to ensure that Padstow Branch remained open. While it is acknowledged that as a union member you have the right to take protected industrial action, as a Branch Manager you have an obligation to ensure that the branch remains open if this is the decision of ANZ. Where your right to take industrial action and your obligation to keep the branch open intersect, you are expected to ensure that your actions are not conflicted. You failed to avoid this conflict in your dealing with issues on 27 August 2001 and it is expected that this does not occur in the future. • That you have been previously advised that speaking directly to the media without appropriate authorisation is against Bank policy (in relation to an article that appeared in the Sun Herald on 19 March 2000). Despite this warning, you have been directly quoted in an article appearing in the Sydney Morning Herald on 10 September 2001. While ANZ is not specifically mentioned, you are readily identifiable as the ANZ manager at Padstow to customers and staff who read the paper and as such your unauthorised comments to the media is in breach of Bank policy. You are hereby advised that any future breach of this policy may result in the termination of your services." 64 The letter concluded: "As you are aware, the Bank is working to engender a "Breakout" culture where all staff embrace our values and are accountable, passionate about our goals and aspirations as an organisation and who will lead and inspire our people. It is our expectation that as a Branch Manager you embrace and support these values in the performance of your responsibilities. While it is my intention to provide you with the necessary support to fulfil your role and responsibilities, failure to show improvement in the areas above may result in disciplinary action." 65 Following the delivery of this letter, and another letter relating to leave, Mr Inglis conducted a branch audit. He found nothing amiss. Notwithstanding this, the visit ended with an acrimonious conversation in which, on his own account, Mr Inglis accused Ms Buckland of lying to him and told her "You're not the manager I want going forward. If you don't believe in the direction ANZ's heading in, why don't you go and work for the Union if that's where your beliefs lie?" Mr Inglis went on to tell Ms Buckland: "If you want a retrenchment, I'll fix it up for you." Ms Buckland did not accept the offer. The proceeding 66 FSU instituted this proceeding on 9 November 2001 when it filed an Application and several supporting affidavits. The matter came before me for directions on 13 December 2001. Draft short minutes for directions were handed up, but the hearing was dominated by a complaint by Mr S Penning, solicitor for the applicant, concerning the terms of that part of the letter of 5 October that related to Ms Buckland speaking to the media. Mr Penning said the constraint imposed in that letter would seriously impede Ms Buckland's ability to fulfil her responsibilities as an elected FSU officer. 67 Mr J Tuck, counsel for the Bank, said his client did not intend to prevent Ms Buckland speaking as an FSU officer. He conceded this was not made clear in the letter. Mr Tuck said a clarifying letter would be issued. In order to permit this to occur, I stood the matter over to the following day. 68 On the following day, 14 December, I was shown a letter dated that day and signed by Christopher Baker, a Melbourne-based executive of the Bank who then had the title "Head of Workplace Strategies". The letter was addressed to Ms Buckland. It read: "In the course of the directions hearing in the Federal Court yesterday clarification was sought as to your ability to speak to the media. The purpose of this letter is to provide that clarification. It is ANZ policy that all contact with the media by employees regarding the Bank will be through those individuals specifically authorised to speak to the media. As you have been previously advised you do not have such authorisation. In line with this policy you cannot purport in any dealings you may have with the media to represent ANZ or to be identified as an ANZ employee speaking or purporting to speak on behalf of the Bank. For example in your union role you may not when dealing with the media identify yourself as a branch manager of the ANZ. We recognise that in your capacity as National President of the Finance Sector Union of Australia you may well comment on matters relating to the finance industry and the concerns of your union and its members. However, given your position as a branch manager of ANZ you have access to information that is confidential and it would be amount to a breach of our policy for you to comment on any issue if you were to disclose such information. You must also be mindful of your duties of fidelity, confidentiality and good faith owed to the Bank in your capacity as an employee. If you have any doubts regarding your capacity to speak to the media about a matter I invite you to contact Ken Parry, Head of Metro Banking NSW prior to making any public comment. With this clarification it is our expectation that you will comply with these obligations." 69 Following the delivery of this letter, I made directions for preparation for a hearing which I appointed to commence on 25 March 2002. At the hearing Ms Claire Howell appeared for FSU. Mr H J Dixon SC appeared with Mr Tuck for the Bank. Evidence was taken over three days, 25 to 27 March. 70 At the conclusion of the evidence, counsel suggested it would be preferable for them to prepare written submissions with transcript references. However, Mr Dixon also wished the opportunity to put oral submissions. I acceded to these suggestions. I directed written submissions and fixed 22 April for oral elaboration. On that day, at the conclusion of oral submissions, I reserved my judgment. 71 The submissions of counsel fall into two categories. Each party put general submissions; partly on the law and partly about the work situation of Ms Buckland and other officers of the Bank, especially Mr Inglis. These submissions raise questions about the availability of s 170MU and s 298K in relation to some of the conduct relied on by the FSU. After these more general submissions, each party dealt with the question whether the relevant purpose is negatived in respect of each item of conduct relied on by FSU. General submissions (i) The applicant 72 Ms Howell commenced her written submissions by summarising the facts. She then made some observations about the statutory scheme. She noted that the objects of the Act, as stated in s 3, included: "(e) providing a framework of rights and responsibilities for employers and employees, and their organisations, which supports fair and effective agreement making … (f) ensuring freedom of association, including the rights of employees and employers to join an organisation or association of their choice … (k) assisting in giving effect to Australia's international obligations in relation to labour standards; …" 73 Ms Howell also referred to comments in three cases about the purpose and role of Part XA of the Act: Davids Distribution Pty Ltd v National Union of Workers ("Davids") (1999) 91 FCR 463 at para 107; Australian Municipal, Administrative, Clerical and Services Union v Ansett Australia Limited ("ASU") [2000] FCA 441; 175 ALR 173 at para 63 and Greater Dandenong City Council v Australian Municipal, Clerical and Services Union [2001] FCA 349; 184 ALR 641 at para 71. 74 Ms Howell accepted that, for the purposes of both s 298K and s 170MU, "the applicant must show that the conduct of the respondent injured Ms Buckland in her employment or altered Ms Buckland's position to her prejudice". She noted that, in Patrick Stevedores Operations No 2 Proprietary Limited v Maritime Union of Australia ("Patrick Stevedores") [1998] HCA 30; 195 CLR 1 at para 4, Brennan CJ, McHugh, Gummow, Kirby and Hayne JJ, described para (c) of s 298K(1) of the Act ("alter the position of an employee to the employee's prejudice") as "a broad additional category which covers not only legal injury but any adverse affectation of, or deterioration in, the advantages enjoyed by the employee before the conduct in question". Ms Howell pointed out that, in Construction, Forestry, Mining and Engineering Union v Coal & Allied Operations Pty Ltd ("CFMEU") [1999] FCA 1531, Branson J held the issue of a written warning of a serious or major breach might constitute conduct falling within para (c) of s 298K(1). 75 Ms Howell referred to the reverse onus provisions, ss 170MU(3) and 298V. She suggested the authorities established the following propositions: "a. A reason is an impermissible reason if it is one of the operative reasons for the conduct; b. To be an operative reason there must be a causal connection between the conduct and the proscribed reason relied upon by the applicant; c. Whether the respondent was actuated by a prohibited reason is a question of fact which will often involve questions of fact and the characterisation of the employer's reasons." 76 Counsel for the Bank did not challenge this summary. As it seems correct to me, also, I need not refer to the authorities cited by Ms Howell. 77 Ms Howell claimed that two items of conduct, undertaken on behalf of the Bank, amounted to an alteration of Ms Buckland's position to her prejudice, within the meaning of s 298K(1)(c). 78 The first item was the March 2000 counselling by Mr Johnston in relation to the Sun Herald article of 19 March 2000: see paras 24 – 32 above. Although Mr Johnston said in evidence that he treated the matter "as a person to person conversation", he agreed this would affect what might happen on any second occasion "because I had already spoken to her and put my point of view to her"; in other words, she had been warned. Ms Howell argued: "It was a preliminary step in the disciplinary process and once it had occurred it had the effect that Ms Buckland was a step closer to formal disciplinary action … and ultimately dismissal." 79 The second item of conduct mentioned by Ms Howell was the formal counselling interview, by Mr Inglis and Ms Stanley, on 25 September 2001. She said this "was a formal stage in the respondent's disciplinary process" and "not materially different to that discussed by Branson J in CFMEU". 80 Ms Howell does not suggest that the March 2000 warning transgressed s 170MU of the Act. In relation to that conduct, she relies only on s 298K. However, she relies on both sections of the Act in connection with the September 2001 counselling and warning. Ms Howell submitted this conduct: "occurred for reasons which included the following prohibited reasons: a. Ms Buckland took protected industrial action (s170MU); b. Ms Buckland was a member and/or officer of the FSU (s 298L(1)(a)); c. the FSU was seeking better industrial conditions and Ms Buckland was a member of the FSU who was dissatisfied with her conditions (s298L(1)(l))." 81 Ms Howell also argued that the counselling and warning of 25 September 2001 breached s 298M "in that it constituted an inducement to Ms Buckland to cease being a member or officer of the FSU". 82 Ms Howell suggested that, in considering whether the Bank has discharged its onus of proof in respect of particular incidents, it is necessary to bear in mind Mr Inglis' own evidence about his state of mind and expectations of Ms Buckland. She said this is particularly important in relation to the September 2001 counselling and the subsequent warning letter; these steps were taken on the initiative of Mr Inglis. 83 In connection with this topic, Ms Howell quoted extensively from the transcript of Mr Inglis' evidence. I do not propose to reproduce all the extracts. Two will suffice to explain his position. 84 Under cross-examination, at page 151 of the transcript, Mr Inglis gave this evidence: "Wasn't your real complaint, Mr Inglis, that Ms Buckland wasn't actively promoting the Bank's policies with respect to its employees? --- No, that's not the … there are a lot of things she wasn't doing. Yes, that was one of them though, wasn't it? --- Actively pushing the Bank's views? Yes?---I don't think its ever been addressed? That was one of your concerns about the issues of PAC, overtime and training, that Ms Buckland wasn't out there advocating with her staff that this was a good thing? --- Yes, sorry, passing on information, yes. Well, its more than passing on information, Mr Inglis, isn't it. It's actually promoting what the Bank's putting forward as being a positive thing for employees?---Yes, yes. And that was something she wasn't doing? --- I don't believe so. And that was something that concerned you? --- Yes." 85 On the following page of transcript, this evidence appears: "Mr Inglis, your position in 2001 was that your branch managers should actively promote the Bank's position on issues which were of significance to the Bank? --- Yes And should not promote a contrary view to the Bank's position on those significant issues? --- Yes. And that would be irrespective of what the FSU's position might happen to be? --- Yes. And that was one of the matters that you intended to convey to Ms Buckland in the counselling and the letter which followed? --- Yes. Because, in your view, she hadn't been achieving that? --- Yes" (Ms Howell's emphasis) 86 Mr Inglis made it clear, on several occasions, that he took the position that, whenever there is any conflict between Ms Buckland's role as a branch manager and her FSU role, she has to resolve that conflict by giving priority to the interests of the Bank. 87 Ms Howell commented: "It is clear … that Mr Inglis had an underlying and strong dissatisfaction with the fact that Ms Buckland was performing an active role as union representative articulating a view or views that were contrary to the views and policies of the respondent and further that she was failing as a manager because she was not resolving any conflict between her role as manager and her role as FSU representative in favour of her role as manager. This view was clearly reflected in the terms of the September counselling and the warning letter." 88 Ms Howell pointed to evidence from Mr Inglis that he took a written script into the counselling session on 25 September. This, she said, shows the Bank: "proceeded on the basis that Ms Buckland was guilty of the allegations and that the purpose of the meeting was to record this fact and to point to future disciplinary action should the conduct be repeated. There was no inquiry into Ms Buckland's conduct, only a disciplinary counselling." 89 According to Ms Howell, this lack of inquiry "supports an inference that Ms Buckland's activities and her taking of industrial action were real and substantial reasons for the counselling and the warning letter". Ms Howell noted the decision to counsel Ms Buckland was made by Mr Inglis only after the industrial action of 27 August; a circumstance, she says, "which supports the proposition that the first three matters were not of substantial concern to the respondent or at least not such as to warrant disciplinary counselling". 90 Ms Howell also said: "It is also relevant in considering the operative reasons for the counselling that there were no matters which were the subject of the counselling which did not relate in some way to Ms Buckland's activities as Union representative. Even with respect to the issues of PAC, use of temporary relief etc Mr Inglis was well aware that these issues related to the staffing issue which formed part of the dispute between the respondent and the FSU". (Ms Howell's emphasis) (ii) The respondent 91 Counsel for the Bank referred to authorities concerning the duties and obligations of employees. They cited para 25 of the judgment of Gleeson CJ, Gaudron and Gummow JJ in Concut Pty Ltd v Worrell [2000] HCA 64; 103 IR 160 in which their Honours quoted comments in Pearce v Foster (1886) 17 QBD 536 at 539 and Blyth Chemicals Ltd v Bushnell (1933) 49 CLR 66 at 72-73 and 81. Both those cases affirmed that conduct by an employee that is inconsistent with due and faithful performance of the employee's duty to the employer constitutes grounds for dismissal. Concut was a dismissal case. 92 Counsel for the Bank said it was inherent in the employee's duty "that the bank and Ms Buckland stand in a fiduciary relationship one to another". They cited Hospital Products Limited v United States Surgical Corporation (1984) 156 CLR 41 and said: "An employer is entitled to the trust and confidence of its employee and that the employee will act in its interest in the exercise of his or her duties as an employee." 93 Counsel for the Bank went on to contend that the "fact that an employee holds an office in an industrial organisation does not alter his or her obligations to the employer". They cited authority for that contention, but I need not refer to them; the contention is not controversial. 94 Counsel conceded that "Ms Buckland may be required to, or regard it as desirable in the performance of her duties as a union official to promote the interests of the FSU and/or its members". However, they submitted, "subject to specific exceptions recognised and protected in the Workplace Relations Act … the performance of her union duties does not entitle Ms Buckland to ignore or neglect her duties as a manager of the bank." Counsel argued that, while the Act recognises and protects certain industrial action, it "does not recognise or permit employees to act contrary to their duties and obligations owed to their employer at common law outside the prescribed limits provided for in the Act". (iii) Conclusions on general submissions 95 The general submissions I have summarised are mostly non-controversial. The only aspect of them I do not accept is the use the Bank seeks to make of the circumstance that Ms Buckland was in a fiduciary relationship with the Bank. 96 In Hospital Products at 67, Gibbs J described the effect of a fiduciary relationship in this way: "A person who occupies a fiduciary position may not use that position to gain a profit or advantage for himself, nor may he obtain a benefit by entering into a transaction in conflict with his fiduciary duty, without the informed consent of the person to whom he owes the duty." It will be noted that Gibbs J referred to the absence of informed consent of the person to whom the fiduciary owes a duty. This is the essence of the matter. A fiduciary may not advance his or her personal interests, or the interests of some other person or organisation, at the expense, and behind the back, of the person to whom the duty is owed. The doctrine of fiduciary relationship has no application to negotiations between an employee and employer regarding contractual or industrial matters. Each is aware the other is intent on maximising his or her benefits. Nor does it have any application to action taken by an employee, with the knowledge of the employer, to support the efforts of an industrial organisation to maximise employee benefits. 97 I accept, as did Ms Howell in argument, that Ms Buckland had an obligation to carry out conscientiously her duties as manager of the Padstow branch of the Bank. Those duties included management of the staff of the branch, including passing on to them information relevant to their employment. This included information about the position taken by the Bank in relation to claims made by FSU on behalf of the branch staff, amongst others. The reason, of course, was to enable the branch staff to determine whether they found the Bank's position to be satisfactory or whether they wished to support the FSU's rejection of that position. 98 However, I cannot accept Mr Inglis' position that Ms Buckland was under an obligation actively to promote the Bank's position on the contentious issues: see paras 84 and 85 above. She was entitled to her own view about those issues and to maintain her integrity in relation to them. To require her actively to promote a position which she regarded as inadequate, and in her capacity as an FSU negotiator had already rejected, would be to require her to engage in hypocritical deception of her staff. 99 The question whether Ms Buckland, as branch manager, was under an obligation to endeavour to ascertain in advance which members of her staff (if any) intended to engage in the stop-work action is a different question. I do not think it would have been unreasonable for Mr Inglis to ask Ms Buckland to do this, provided he accepted that the branch staff were entitled not to indicate their intentions. However, the evidence does not suggest that he asked Ms Buckland to do this before his visit to the branch on 22 August. The s 170MU claim (i) The applicant's submissions 100 It will be recalled that s 170MU(1) provides that an employer must not dismiss, or threaten to dismiss, an employee, or injure an employee in his or her employment, or alter the position of an employee to the employee's prejudice, wholly or partly because the employee is proposing to engage, is engaging, or has engaged in industrial action. 101 Ms Howell submitted that, in this case, the Bank has not demonstrated that its conduct, in counselling and warning Ms Buckland, "was not undertaken in part because she took protected industrial action". In referring to "protected industrial action", Ms Howell had in mind Ms Buckland's failure to attend for work on the morning of 27 August and/or her attendance at the stop-work meeting at Hurstville. 102 Ms Howell acknowledged that no reference to either of these matters was made at the counselling meeting of 25 September or in the letter of 5 October. The reference was to her "failure to keep the Branch open" and, Ms Howell said, "her failure to accord the Bank's interests priority over her own right to take industrial action". However, Ms Howell contended, these "are extremely broad complaints and clearly are referable in substance to the taking of industrial action". She said: "There is no other persuasive explanation as to what specific matters these general complaints refer to". Ms Howell noted that neither the counselling meeting minute nor the warning letter identified, or confined the complaint to, any particular matter, such as failure to ask employees whether they were intending to participate in the stoppage of work. Moreover, Mr Inglis decided to counsel Ms Buckland only after the industrial action on 27 August, whereas her failure to ask her staff was known by 22 August. 103 Ms Howell submitted it is apparent Mr Inglis had in mind conduct other than Ms Buckland's failure to find out, by 22 August, the intentions of her staff. She drew attention to para 43 of Mr Inglis' affidavit. In that paragraph Mr Inglis said that, during the course of the conversation of 22 August, he said to Ms Buckland words to the following effect: "It looks like your staff will be going off on Monday. Your job as branch manager is to ensure that this branch opens and at this point in time you're not doing that. You're not managing the branch very well if you're not communicating to your staff." 104 Ms Howell submitted: "This remark clearly does not refer to the failure of Ms Buckland to ask staff whether they were intending to take industrial action. It expressly refers to the fact that the Branch employees were apparently intending to take industrial actionand immediately following this observation asserts that Ms Buckland's job is to keep the Branch open and that she was not doing that. The remark is clearly directed to Ms Buckland's failure to dissuade employees from taking industrial action." (Ms Howell's emphasis) 105 Moreover, Ms Howell pointed out, the September counselling minute and the warning letter both confine the fourth complaint to events on what was called "the day of industrial action on 27 August 2001". Neither refers to any omission on or before 22 August 2001. The counselling minute has Mr Inglis telling Ms Buckland that, where her right to take industrial action and her obligation to keep open the branch intersect, "You must ensure that those actions do not conflict". Mr Inglis is recorded as saying "You failed to avoid this conflict in dealing with the issue on 27/08/01, and it is expected that you will not fail again". Ms Howell observed that it cannot be thought Mr Inglis was referring to events after the return to work on 27 August: "By this stage the industrial action was over and there was no 'failure to keep the Branch open'." 106 Ms Howell submitted: "The reasons set out in the letter are inextricably linked to the taking of industrial action and in a context where (as Mr Inglis rightly conceded) any industrial action was contrary to the bank's interests and Ms Buckland was expressly criticised for not putting the Bank's interests first. It cannot be said that the taking of industrial action did not form a part of the respondent's reasons for counselling Ms Buckland …" 107 Ms Howell pointed out Mr Inglis acknowledged that employees were not obliged to divulge their intentions with respect to industrial action and he was aware FSU had told this to its members. She said: "it would be an absurd situation if the Bank could subvert this right by compelling employees to divulge the intentions of their co-workers (but not themselves). The situation is no different because Ms Buckland was a Branch manager with responsibility for supervising seven other part time staff. … The very purpose of industrial action is to allow parties in a bargaining situation to impose pressure on the other party. Pressure could not be effectively imposed if the respondent's requirement was permissible. The respondent required her to actively undermine industrial action by her fellow union members by assisting the respondent to circumvent the industrial action. … By requiring Ms Buckland to take all possible steps to negate her industrial action the respondent was requiring that Ms Buckland negate the effect of her own and her fellow members' action. By punishing her for not doing so, it was in substance punishing her for taking protected industrial action. The respondent altered Ms Buckland's position to her prejudice in breach of s 170MU because she had engaged in protected industrial action by counselling her for her failure to keep the Branch open and her failure to resolve conflicts between her right to take industrial action and the interests of the bank in favour of the bank." 108 Ms Howell put submissions in relation to the Bank's reliance on s 170MM. They will be easier to understand if I set them out after I recount the Bank's argument. (ii) The respondent's submissions 109 Counsel for the Bank argued the activity on which Ms Buckland (and others) engaged on 27 August 2001 was not protected action within the meaning of s 170ML of the Act. They submitted it is an essential ingredient of employees' "protected action" that it is "industrial action directly against the employer": see s 170ML(2). They referred to the definition of "industrial action" in s 4 of the Act. This definition makes no reference to a stop-work meeting. The definition includes performance of work in a manner different from that in which it is customarily performed (para (a) of the definition), certain types of bans, limitations or restrictions on the performance of work (paras (b) and (c)) and "a failure or refusal by persons to attend for work or a failure or refusal to perform any work at all by persons who attend for work", if certain conditions are fulfilled (para (d)). 110 Counsel further submitted that, even if the activity of 27 August 2001 may properly be regarded as "industrial action", it was excluded by s 170MM from the concept of "protected action". As mentioned in para 6 above, that section excludes industrial action that is engaged in, or organised, "in concert with one or more persons or organisations that are not protected persons". Counsel said that, in June 2001, FSU "began to promote an industrial campaign against each of ANZ, Westpac and NAB, in relation to each of whom it had by then initiated bargaining periods." They referred to a notice sent out to FSU members employed by ANZ in southern Sydney concerning the stop-work meeting planned for 27 August. That notice commenced: "On Monday ANZ staff throughout this region are taking industrial action, along with members from Westpac and NAB." Counsel also referred to a file of media releases referring to FSU industrial action against the three banks. 111 Against this background, counsel for the Bank submitted: "Industrial action is not protected action where it is engaged in concert with one or more persons that are not protected persons – s.170MM of the Act. An employee is a protected person where he or she is a member of the union and employed by the employer – s.170MM(3)(b). In respect to the ANZ, the employees of Westpac and NAB cannot be protected persons. It is submitted that the evidence reveals that on 27 August 2001 Ms Buckland took industrial action against the bank in that she stopped work to attend a stop work meeting. … That action was engaged in in concert with employees of Westpac Banking Corporation and National Australia Bank Limited. The conduct engaged in by Ms Buckland and others from the ANZ and the other banks was: (a) knowing conduct; (b) conduct the result of communications of like kind to the parties; (c) contemporaneous; and (d) engaged in with a community of purpose. See Tillmanns Butcheries Pty Ltd v AMIEU (1979) 42 FLR 331 at 337 per Bowen CJ; J-Corp Pty Ltd v ABLFU (1992) 111 ALR 502 at p 535 per French J. The clear inference from the evidence of Mr Derrick … and from materials of the FSU … is that the action is more effective where it is taken collectively against the Banks because that increases the public pressure. See also the evidence of Ms Best, a union delegate employed at another branch, at paras 10 and 11 of her affidavit where she said that she believed that if she decided to take industrial action on 27 August 2001 she would be joining forces with employees from other banks in a coordinated campaign. Where industrial action is planned to occur in the same way (including time, nature and place) in respect to a number of employers by members of a union employed by those employers, as occurred here, for the purpose of placing pressure on all the employers collectively, it is not protected by reason of s.170MM(2) and (3). To conclude that because an employee can only withdraw their labour from their own employee and therefore could never act in concert with employees of a different employer (as contended for by the applicant) would render nugatory the provisions in s.170MM of the Act. A Court is required to give some meaning to a provision in a statute. This approach is a fundamental rule of interpretation." 112 Counsel for the Bank argued that, in any event, the counselling and warning directed to Ms Buckland had nothing to do with the fact that she had taken industrial action on 27 August. They said the fourth complaint raised with Ms Buckland at the counselling session concerned the facts "that she had failed to take appropriate steps (on 24 August 2001) in ensuring that Padstow branch would open for business on 27 August 2001 and that her actions after returning to work were not acceptable. … this conduct was not in any way protected industrial action." 113 Counsel's reference to 24 August is a reference to Ms Buckland's alleged failure to ensure Ms Gannon was created on the Branch computer system. 114 Counsel argued that, in raising these matters: "Mr Inglis was not motivated by an improper reason. The bank's concern clearly was for smooth operations pre and post industrial action. The bank's concerns were consistent with its entitlement to get the branch operating again as soon as possible. … There is no valid basis for concluding that these concerns were raised with Ms Buckland for the reason that she was a union member or officer." 115 Counsel concluded on this issue: "The evidence strongly suggests the conclusion that the taking of protected industrial action by Ms Buckland was not the operative reason for the counselling on this issue (the fourth issue) – thus even if the conduct was protected action, the respondent has satisfied the onus under s.170MU(3) in this regard." (iii) The applicant's submissions on s 170MM 116 FSU's submission regarding s 170MM emphasises the words, in s 170ML(2), "against the employer". Ms Howell said: "Section 170ML entitles unions and their members to take action directly against the employer during a bargaining period. Only action against the employer is protected action. Industrial action to be in concert must be in concert in its operation and effect against the employer. The relevant employer for the purpose of s 170ML was the ANZ. The only persons taking industrial action (in the form of a failure to attend work) against ANZ on 27 August 2001 were ANZ employees. ANZ employees were not taking industrial action against NAB and Westpac, and employees in those banks were not taking industrial action against ANZ. A general campaign involving common elements or common meetings or mutual support does not render particular protected industrial action in concert. It does not assist the respondent that the notifications of intention to take industrial action … included reference in the description of the action to stop work meetings. The industrial action as defined in the Act was to stop work. What the employees did beyond that is of no relevance. … The fact that the three campaigns against the three banks had common elements is of no relevance. The industrial action with respect to each bank was for the purpose of obtaining a new agreement with that bank. The members in the three banks did not have a common objective in taking industrial action. A different proposal for agreement was put forward by the FSU with respect to each bank on the basis of consultation with members in the respective banks …. It was at all times possible that agreement would be reached with one bank (in terms that had no applicability to the other banks) as had earlier happened with the Commonwealth Bank. It is fundamental to the concept of acting 'in concert' that the relevant actions have a common end." (Ms Howell's emphasis) 117 In support of the final proposition, Ms Howell cited Gray J in Australasian Meat Industry Employees Union v Meat and Allied Trades Federation of Australia ("AMIEU") (1991) 32 FCR 318 at 338. (iv) Conclusions concerning the s 170MU claim (a) The application of s 170MM 118 The first question for determination is whether s 170MM prevents the activities undertaken on 27 August from being regarded as "protected action" within the meaning of s 170ML of the Act. 119 It seems clear that the meeting at Hurstville Civic Centre was not "protected action". The reason is that given by counsel for the Bank: "protected action" is a particular category of "industrial action", as defined in s 4 of the Act. The exhaustive definition of "industrial action" in s 4 makes no reference to meetings, or any other form of assembly for consultative purposes. 120 In his notice of 21 August 2001 (para 41 above) Mr Schroder included "stop work meetings" in his description of the "nature of the intended industrial action". But that circumstance cannot extend the ambit of a statutory provision. 121 Although attendance at stop-work meetings may have been the purpose of the stoppage of work by FSU members on 27 August, it would be wrong to treat that attendance as a comprehensive statement of the industrial activities of that day. The stoppage itself was a significant event. From the Bank's point of view, the fact that employees stopped work pursuant to the notice may have been more important than that some or all of them attended a stop-work meeting during the stoppage. The stoppage cannot be regarded as subsumed in the meeting (or meetings). It was an item of industrial action in itself, one that falls within para (d) of the definition of "industrial action" in s 4 of the Act. 122 The scheme of s 170ML(2) of the Act is to confer on particular people and organisations a personal entitlement "to organise or engage in industrial activity directly against the employer". Action taken pursuant to that entitlement is "protected action". The entitlement is lost, under s 170MM, if the person or organisation who would otherwise be protected has organised or engaged in the action in concert with a person or organisation that is not a protected person. It follows that the same industrial activity may be "protected action" in relation to one person or organisation, but not in relation to another. For example, a group of employees in a section of their employer's factory may impose a ban on the carrying out of particular work. Assuming the other requirements of para (b) of the definition of "industrial action" are satisfied, and an appropriate notice is given, this will be "protected action" in relation to those employees; they will have the benefit of s 170ML(2). However, if somebody else seeks to ensure the success of the ban by arranging a complementary ban by employees of a supplier to the employer, the first ban may not be "protected action" in relation to that person. If the supporting action is arranged at the request of the original group, the members of that group will lose future protection; thenceforth, their ban will be "engaged in in concert" with persons (the employees of the supplier) who are not "protected persons". However, if the supporting action is arranged without any request by the members of the original group, their protection will continue. They will not be engaging in the ban "in concert" with the employees of the supplier. 123 In determining the possible application of s 170MM, it is necessary carefully to analyse the evidence concerning the activities of the particular person or persons whose entitlement is in question. 124 The Bank's contention is that the industrial action taken by Ms Buckland (the stoppage of work) lost its status as protected action because of s 170MM. However, looking first at subs(2), there is no evidence that Ms Buckland organised the stoppage. The evidence only shows her acting as a liaison person for ANZ employees in connection with the meeting. Accordingly, s 170MM(2) has no application. 125 Section 170MM(1) applies to a person who engages in industrial action if the condition stated in either para (a) or para (b) is satisfied. Ms Buckland certainly engaged in the stoppage of work, so it is necessary to consider each of those paragraphs. I will deal first with para (b). 126 The stoppage of work at ANZ sites, and also at sites controlled by Westpac and NAB, was "organised" by FSU. It seems the organisation was primarily undertaken by FSU paid officials, but some elected officers and ordinary members may have played a part. However, there is no suggestion in the evidence that such people acted otherwise than on behalf of FSU; they did not act on their own account or for some other body of people. 127 FSU fell within para (a) of the definition of "protected person" in s 170MM(3) of the Act. Its officers and employees fell within para (c). A member of FSU who encouraged or persuaded his or her fellow-employees to join in the stoppage fell within para (b). There is no evidence that any ordinary member organised the participation in the stoppage of any person who was employed by an employer other than that of the member herself or himself. Consequently, it seems clear that para (b) of s 170MM(1) does not apply to this case. 128 I turn to para (a). The question under that paragraph is whether the stoppage of work (as distinct from the meeting) was action "engaged in in concert with one or more persons or organisations that are not protected persons." The word "organisation" may be set to one side. There is no suggestion of involvement in the stoppage of any organisation registered under the Act – see the definition of "organisation" in s 4 – other than FSU. 129 Although the notices are not in evidence, the affidavit and oral evidence supports an inference that, sometime around 21 August, Mr Schroder gave s 170MO notices to both Westpac and NAB and these notices were in similar, if not identical, terms to the notice he gave ANZ on that day. At least some of the FSU members employed by Westpac and NAB also stopped work on 27 August 2001. Does that mean that, in stopping work this day, the FSU members who were employed by ANZ engaged in action "in concert" with persons who were not protected persons, because they were not employed by the same employer (ANZ)? 130 As counsel for the Bank noted, Bowen CJ gave consideration to the phrase "in concert" in Tillmanns Butcheries at 337. His Honour said: "Acting in concert involves knowing conduct, the result of communication between the parties and not simply simultaneous actions occurring spontaneously." 131 There is no evidence in the present case of communication in relation to the stoppage between members employed by different banks. The only evidence of inter-member contact – and it is extremely limited – relates to contact between fellow ANZ employees. 132 However, although it cannot be said the stoppage by employees of the three different banks was a result of communication between those members, it also cannot be said those stoppages were "simultaneous actions occurring spontaneously". They occurred, and occurred simultaneously, because FSU so organised matters. Does this bring the case within s 170MM(1)(a)? 133 Gray J touched on this question in AMIEU. At 329 his Honour said: "The difficulties in the concept of 'in concert' are acute when the acts of one person are confined to advising, requesting, encouraging or inciting the other, who responds by performing the desired act. In the present case, the learned trial judge found that AMIEU by its officers advocated that stoppages of work should occur on the days on which they occurred, and that members who voted in favour of those stoppages at the preceding meetings were aware of that advocacy. In my view, such a situation will not ordinarily give rise to the conclusion that the trade union and its officers on the one hand and the employees who are its members on the other have acted in concert if the employees cease work. If such a conclusion could be reached, it would follow that anyone who advocated that employees should strike would be held to have acted in concert with those employees if they did strike, being persuaded to do so by the advocacy." 134 Reference should also be made to Davids. Although our observations were obiter, having regard to earlier conclusions, Cooper J and I (at 496) briefly discussed the concept of acting in concert. Our views on this matter were shared by Burchett J, who dissented as to the fate of the appeal because of a difference of opinion on another point. Cooper J and I said: "First, we agree with North J that there is a difference between taking action 'in concert' and action in conjunction. Action 'in concert' is action undertaken as a result of communication between the parties to the action. It is not enough that there be spontaneous actions by two or more persons, even if those actions occur at the same time; although, of course, such actions may 'naturally lead to the inference that these separate acts were the outcome of preconcert, or some mutual contemporaneous engagement': The King and the Attorney-General of the Commonwealth v The Associated Northern Collieries (1911) 14 CLR 387 at 400, per Isaacs J. Nor is action "in concert" simply because the action of one person or organisation is supported by others." 135 If the view expressed by Gray J in AMIEU is correct, the individual FSU members who stopped work on 27 August did not act "in concert" even with FSU; there is no evidence that FSU went beyond advising, requesting and encouraging members to join in the stoppage. However, for present purposes, it would not matter if Gray J's view was wrong. Protection is not lost because of action "in concert" between "protected persons"; and, in relation to the ANZ stoppage, FSU and FSU members employed by ANZ were all "protected persons". It is appropriate to treat the relevant industrial activity as the ANZ stoppage for the reasons given by Ms Howell (see para 116 above). By its very nature, a stoppage of work can only be industrial action against the stopper's particular employer. 136 As it seems to me, the Bank's s 170MM argument critically depends upon it being shown that the stoppage in which Ms Buckland engaged – that is, the stoppage at Padstow, either specifically or as one of numerous ANZ sites - stemmed from communication between persons (not being persons acting only as agents of FSU) who were employed by different employers. There is no such evidence. Accordingly, I reject the submission that the stoppage of work on 27 August 2001 was not "protected action" within the meaning of s 170ML. (b) The nature of the respondent's conduct: s 170MU(1)(a) and (b) 137 There is no doubt that the September/October 2001 actions of the Bank, in counselling, and formally warning, Ms Buckland, were actions falling within paras (a) and (b) of s 170MU(1) of the Act. They were actions similar to that considered by Branson J in CFMEU. The effect of the counselling and warning letter was to make Ms Buckland's job less secure. According to the counselling meeting minute, Mr Inglis concluded the meeting by saying that, whilst it was his goal to ensure that Ms Buckland is provided with all necessary support, "if there was no improvement in the areas which we had covered today, appropriate disciplinary action may be taken". A similar statement was made in the letter of 5 October 2001. 138 Mr Inglis said in evidence that the counselling meeting was a "process which is recognised under the Bank's disciplinary procedures"; it was "a stage in the disciplinary process". Although Mr Inglis apparently did not use the word "dismissal" on 25 September, and certainly did not do so in the letter, terms such as "disciplinary action" and "disciplinary process" are apt to include dismissal. Indeed this seems the most likely manner in which a bank might discipline an unsatisfactory branch manager. Accordingly, I think the statement made by Mr Inglis orally at the counselling meeting, and repeated in the letter, must be taken to include a threat to dismiss Mr Buckland. 139 I accept the relevant "disciplinary action" might be demotion rather than dismissal. However, demotion from the position of branch manager would itself be a significant detriment. To take a step that had the effect of "using up" Ms Buckland's chance to be first warned about any future unsatisfactory conduct, rather than be immediately dismissed or demoted, was to alter her position to her prejudice. The point was made by Branson J in CFMEU at para 95: "Conduct engaged in by an employee who has received such a warning could lead to the termination of his or her employment although the same conduct engaged in by an employee who had not received a warning would not lead to the termination of that employee's employment. In a sense, written warnings under the respondent's disciplinary procedures may be regarded as analogous to the receipt of driving demerit points. It seems to me that few holders of driving licences would doubt that the advantage enjoyed by them in holding driving licences is adversely affected by the accumulation of demerit points close to, but less than, the number required to trigger cancellation of their licences." (c) The reason for the respondent's conduct: s 170MU(1) 140 The remaining question, in relation to s 170MU, is whether the Bank has shown, pursuant to subs (3) of that section, that its relevant conduct (the counselling meeting and warning letter) was not carried out, wholly or partly, because Ms Buckland was engaging, or had engaged, in the stoppage of work on 27 August. 141 In his evidence, Mr Inglis asserted that Ms Buckland's participation in the stoppage played no part in his decisions to conduct a counselling meeting and to issue a warning letter. Senior counsel for the Bank, Mr Dixon, rightly observed that no complaint was made about Ms Buckland's participation in the stoppage, either during the counselling meeting or in the letter. Mr Dixon also pointed out that the first three incidents discussed at the meeting, and in the letter, pre-dated the stoppage. 142 The question is whether I should accept Mr Inglis' assertion. I need to ask myself whether it is probable that, if Ms Buckland had not participated in the stoppage on 27 August, Mr Inglis would, nonetheless, have decided to require her to attend a counselling meeting and/or to give her a written warning of future disciplinary action. 143 I have given this question earnest consideration. In doing so, I have taken into account the whole of the evidence concerning the attitudes, and relationship, of Mr Inglis and Ms Buckland, including the impression of their personalities that I gained from observing them in the witness box. I have concluded that I cannot answer the question affirmatively. 144 The fundamental reason for my conclusion is my assessment of Mr Inglis. He has been a bank officer for some 18 years and currently has responsibility for some 150 subordinate employees. The evidence does not reveal the number of his subordinates in mid-2001; it was probably less, but still a significant number. For a person in such a position, Mr Inglis' knowledge of industrial matters struck me as sparse and his attitude to them simplistic and naďve. Mr Inglis was unaware of the terms of the 1998 certified agreement, under which the Bank's employees were working in 2001. He said in evidence he could not remember ever reading it. Although he regularly received and filed bulletins put out by the FSU, he read them only "if I had time". He said he was generally aware of "the line that the union was pushing"; but he knew little about the negotiations that had occurred earlier in 2001. 145 More significantly, Mr Inglis harbours attitudes that seem almost unbelievably unrealistic and unfair. He made it clear that he believed Ms Buckland was under a duty to support, and promote, the Bank's position in relation to its dispute with FSU, regardless of her personal views and her position as the elected leader of FSU. He said he thought it was the duty of a manager to pass on to subordinate staff information about the Bank's position in the industrial dispute. I agree with that. But Mr Inglis added that the information should be passed on "without any bias". There was a question what he meant by that. Mr Inglis was taken to the case of a manager who had participated in the negotiations on behalf of FSU, as had Ms Buckland. The evidence went on: "So she could say: well, here is the handout from head office and I'm putting it on the noticeboard. I think the Bank is wrong. I think what they said factually is wrong and I think that what they're proposing is less than we've got from the Commonwealth Bank. Is she allowed to say that? --– I don't know if she's allowed to or not. I don't know if she's allowed to say that or not. No, but in your judgment, you're her superior officer, would you criticise her for saying that? --– I probably would, yes." 146 Although I regard Mr Inglis' position as unreasonable and industrially naďve, it was deeply – even passionately – held. It would be unrealistic for me to assume it played no part in his decisions as to conduct. On several occasions before 27 August, Mr Inglis told Ms Buckland it was her duty to "keep the branch open". He was not talking about the computer system, the problem in relation to which became apparent only on the morning of 27 August. Nor was he talking about getting in relief staff; that was something for him to arrange, not Ms Buckland. He was urging her to ensure that the regular staff attended for work on 27 August. That was why it was Ms Buckland's duty to promote the Bank's position as being positive for employees. He did not specifically mention Ms Buckland's attendance for work, but if he thought it was her duty to ensure (or at least urge) the attendance of her staff, he must have thought she had a duty to work herself, whatever her legal right not to do so. And he must have thought it a betrayal for her, not only to fail to urge the staff to work, but to give a lead in the opposite direction by stopping work herself. 147 The agenda for the meeting of 25 September tends to support this analysis. The first complaint was trivial. It concerned a remark allegedly made on 25 July, some five weeks before Mr Inglis' decision to hold the counselling meeting, "You were setting me up to fail". It is not credible that any experienced supervisor would regard that remark as worthy of a formal counselling session with a Human Resources adviser and a subsequent warning letter. The fifth complaint, the interview with Ms Horin, can likewise be immediately set aside; it occurred after Mr Inglis had appointed a formal counselling meeting. This leaves the second, third and fourth incident, all of which were related to the industrial dispute. 148 On its face, the second complaint had nothing to do with Ms Buckland's attitude to the stoppage of work on 27 August; it was about her alleged failure to pass on to her staff information about the Bank's position. However, as Mr Inglis made clear in his evidence, this really meant her failure to promote the Bank's position. A successful promotion would have tended to dissuade staff from joining the stoppage. It is noteworthy that the second complaint arose out of Mr Inglis' visit to Padstow for the specific purpose of ascertaining the likely attitude of its staff to the forthcoming stoppage. 149 The third complaint is a seemingly minor matter. On Mr Inglis' own evidence, Ms Buckland's transgression was simply that, at a telephone conference of branch managers, she told Mr Inglis that, after his visit to the branch on the previous day, the staff "have definitely made up their minds" or "are very clear" about what they would do on Monday; and, when Mr Inglis asked whether they intended to come to work, Ms Buckland replied "No, they are most upset." Perhaps Ms Buckland put the position more bluntly than she need have done. But this was an exchange between experienced bank officers about a step in an industrial dispute. It would not normally warrant formal counselling. 150 This leaves the fourth complaint, to which most attention was paid at the trial. The complaint concerned Ms Buckland's "conduct during the day of industrial action" and her failure "to take appropriate steps in ensuring that Padstow branch would open for business" that day. Mr Inglis disclaimed the suggestion that Ms Buckland's omission to ensure Ms Gannon was created on the computer was an act of sabotage; so he seems not to suggest the omission was deliberate. Anyway, it does not seem this omission was the foundation of the complaint about not taking appropriate steps to ensure the branch was open for business; the computer problem was not even mentioned during the counselling meeting. And, as Ms Howell pointed out, any conduct by Ms Buckland after her return to work could not properly be described as a failure to keep the branch open; it was then open and it remained open. It is true the minute includes the item "and that her actions after returning to work were not acceptable". However, according to the minute, the only matter raised by Mr Inglis in respect of the period after the return to work was delay in restarting work. Ms Buckland denied there was unreasonable delay. But it does not matter who is right. Any failure promptly to resume work would be protected action falling within para (d) of the s 170MO notice. The minute provides no support for an assumption that the reference to actions after return to work was to Ms Buckland's acrimonious exchange with Ms Gannon; the minute does not mention that incident. 151 The Bank's position in respect of the fourth complaint is not helped by its wooliness of expression. What exactly did Mr Inglis mean by telling Ms Buckland she "had failed to take appropriate steps in ensuring that Padstow branch would open for business" on 27 August? The only particulars he supplied were the statement (quoted at para 56 above) about Ms Buckland ensuring there is no conflict between her right to take protected industrial action and her obligation "to ensure the branch remains open if this is the decision of the ANZ Bank". However, obviously there was a potential for conflict. If Ms Buckland chose to exercise her right to take protected industrial action, this would tend to influence her staff to take similar action. Her action would run counter to Mr Inglis' instruction "to ensure the branch remains open". And if the branch staff chose to exercise their right to take protected industrial action, what was Mr Inglis saying Ms Buckland should have done about it? It seems to me that, in complaining that Ms Buckland "failed to avoid this conflict in dealing with the issue" on 27 August, Mr Inglis was really telling her she failed to resolve the conflict in the Bank's favour. She could have done that only by persuading her staff not to join the stoppage; a course that inevitably would have required her not to join it herself. If Mr Inglis was referring to something different from this – for example, Ms Buckland's failure to make enquiries from her staff before Mr Inglis' visit on 22 August, or to create Ms Gannon on the computer – it would have been easy and natural for him to say so. 152 In Cuevas v Freeman Motors Ltd (1975) 25 FLR 67, the Australian Industrial Court considered a claim, under s 5(1) of the Conciliation and Arbitration Act 1904, that the defendant had dismissed the informant because he was an officer (a shop steward) of a registered organisation. The detail of the case does not matter. But a comment by Smithers and Evatt JJ has resonance in relation to the fourth complaint made to Ms Buckland at the counselling session of 25 September. Their Honours said (at 78): "… a shop steward as such does not by virtue of being such, acquire any immunity from dismissal on any ground other than the fact that he is a shop steward. And if there is a dismissal effectuated on any such ground, the reasonableness or unreasonableness of the employer's action is irrelevant. However, where it is probable that an employer believes it would be in his interest to be without an employee because his position as a shop steward results in situations disturbing to him in the management of his business, the fact that the grounds of dismissal asserted by the employer in a particular case have puzzling or unreasonable aspects is of considerable importance." 153 The Bank has not discharged the onus of proof cast upon it by s 170MU(3) in relation to Ms Buckland's participation in the stoppage of 27 August. The applicant's allegation of breach of s 170MU is made out. The s 298K claims (i) The first claim (Mr Johnston's counselling) 154 The applicant's first allegation of contravention of s 298K of the Act arises out of Mr Johnston's informal counselling of Ms Buckland in relation to the Sun-Herald article of 19 March 2000. Ms Howell argued this counselling constituted injury to Ms Buckland in her employment, or an alteration of her position to her prejudice, and occurred for reasons which included reasons prohibited by s 298L(1)(a) (that Ms Buckland was an officer of FSU); s 298L(1) (that Ms Buckland was a member of an industrial association that was seeking better industrial conditions), and/or s 298(n) (that Ms Buckland, as an officer of FSU, had done an act for the purpose of furthering its industrial interests that is lawful and within the limits of her authority under the FSU rules). 155 Ms Howell pointed out that Mr Johnston decided to conduct the counselling in the belief that the action of Ms Buckland in speaking to Mr West was "contrary to the Bank's policy of restricting comments made by employees to the media". This policy was revised, or perhaps clarified, on 14 December 2001. From these circumstances, and referring to both Mr Johnston's and Mr Inglis' counselling of Ms Buckland, Ms Howell argued: "There was apparently a total lack of understanding by senior executives (Mr Inglis and Mr Johnson) of the respondent's own policy and a total lack of consideration as to how this policy should apply in the context of union activities. The policy was applied to Ms Buckland in an arbitrary and unfair way. It was applied harshly in circumstances where the stated reason for the policy (protection of confidential or market sensitive information) was not in issue. These matters reinforce the available inference that the existence and terms of the policy were not the substantial reason for the respondent's conduct on this issue." 156 I do not find it necessary to discuss the application of s 298L to the counselling given by Mr Johnston to Ms Buckland. I do not think this action injured Ms Buckland in her employment or altered her position to her prejudice; there was no contravention of s 298K, regardless of the reason for the counselling. 157 At paras 137-139 above, I indicated acceptance of the proposition that counselling may constitute an injury to an employee in his or her employment, or an alteration of the employee's position to his or her prejudice. But that was a reference to a formal counselling terminating with a formal warning. Mr Johnston did not embark on formal counselling or give a formal warning. He simply telephoned Ms Buckland and expressed his concern about the article. He requested her not to be involved in any more articles where she could be identified as an ANZ bank manager. Perhaps that request went too far, but there was no formal procedure. Mr Johnston said in evidence that he treated the matter as "a person to person conversation". I take it he meant it was the type of informal rebuke or request that supervisors often find it necessary to administer to subordinates. The only significance of the conversation, from Mr Johnston's point of view, was that, if there was a repetition of the conduct, he would know Ms Buckland appreciated the effect of her new action. So, on that occasion, he would "make it formal"; that is, take an action that might fall within para (b) or (c) of s 298K(1) of the Act. 158 I reject the applicant's submission that the action of Mr Johnston in March 2001 breached s 298(1) of the Act. (ii) The second claim (Mr Inglis' counselling) 159 The applicant's second s 298K claim arises out of the counselling administered by Mr Inglis on 25 September 2001 and the subsequent warning notice. Reliance is placed on the same three paragraphs in s 298L(1). 160 Ms Howell disclaims reliance on the first three complaints made at the counselling meeting. So I am concerned only with the fourth and fifth complaints. 161 I have dealt with the fourth complaint ("the day of industrial action") in connection with the s 170MU claim. While I am not satisfied that the reasons for the counselling, and subsequent warning, in respect of that complaint excluded the fact that Ms Buckland took part in the stoppage, I accept they did not include the reasons set out in either para (l) or para (n) of s 298L(1). 162 In relation to para (l), I note that the evidence does not indicate to what extent (if any) Ms Buckland's personal conditions of employment were affected by the industrial dispute between FSU and ANZ; anyway, no mention of this was made at any of the meetings between Mr Inglis and Ms Buckland. I have no reason to believe any dissatisfaction about Ms Buckland's personal conditions of employment, that she may have felt, entered into Mr Inglis' thinking. 163 The problem about para (n), from the applicant's point of view, is that the FSU rules do not expressly empower the national president to make public statements or give media interviews. No doubt members would expect the president to attend, and speak at, stop-work meetings called by FSU and other meetings and rallies, and also to undertake interviews from time to time. These activities might sometimes be necessary in order to further or protect members' industrial interests; but the members have neglected to provide the express authority that para (n) requires. 164 This leaves para (a), to which I will return. 165 The fifth complaint aired at the counselling meeting concerned Ms Buckland's interview with Ms Horin of the Sydney Morning Herald. For the same reasons as apply to the fourth complaint, I am satisfied that neither para (l) nor para (n) of s 298L(1) applies to this complaint. 166 At first blush, it might be thought para (a) has no application to the decisions of Mr Inglis to counsel and warn Ms Buckland. Ms Buckland had been national president of FSU for some years, but no formal action had previously been taken against her. However, Mr Inglis decided, on the afternoon of a day of industrial action, to summon Ms Buckland for counselling and he subsequently added a complaint about a media interview she gave between the date of that decision and the date of the counselling meeting. Can Ms Buckland's industrial activities on 27 August and her media interview be regarded as relevant to para (a)? 167 That question requires reference to the decision of the High Court of Australia in General Motors Holden Pty Ltd v Bowling ("GMH v Bowling") (1976) 12 ALR 605. That case, like Cuevas, arose under s 5(1) of the Conciliation and Arbitration Act and concerned the dismissal of a shop steward in the motor industry. Mason J (with whom Stephen and Jacobs JJ expressly agreed) wrote the leading majority judgment. The other majority member was Gibbs J. Barwick CJ dissented. 168 At 617 Mason J accepted the finding of the Australian Industrial Court "that the principal reason for the dismissal was that the appellant considered the respondent to be a troublemaker, to have deliberately disrupted production and thereby to be setting a bad example to others". However, his Honour commented, "this finding does not carry the appellant the whole distance". He said at 617-618: "Once it is said that the appellant dismissed him because he was deliberately disrupting production and was setting a bad example it is not easy to say without more that this had nothing to do with his being a shop steward. Although the activities in question did not fall within his responsibilities as a shop steward his office gave him a status in the work force and a capacity to lead or influence other employees, a circumstance of which the appellant could not have been unaware. It would be mere surmise or speculation, unsupported by evidence, to suppose that the appellant's management, if concerned as to the bad example he was setting, divorced that consideration from the circumstance that he was a shop steward." 169 The basis of Barwick CJ's dissent was that s 5(1) of the Conciliation and Arbitration Act distinguished between holding a position as an officer of an organisation and activities in that office. He referred to s 5(1)(a) of the Conciliation and Arbitration Act, which was in substantially similar terms to s 298L(1)(a) of the present Act, and s 5(1)(f), which was similar to the present s 298L(1)(n). At 609-610 he said: "Section 5(1) generally, but particularly sub-s (1)(a) and (f), is enacted for the protection of the organization. Section 5(1)(a) and (f) are designed to prevent the organization being denied the services of its officers. They are not designed to afford a protection to the employee for his activities which fall outside his authority as an officer of the organization. No doubt on this view the section is of very limited operation: in my opinion, it was so intended, as I think its language indicates." 170 Merkel J discussed these conflicting views in ASU. Maria Gencarelli had been dismissed by Ansett because she used the company's email system to distribute a bulletin published by the applicant, of which she was a member and officer. Ansett argued the dismissal was for misconduct; Gencarelli had misused her access to the company's email system. However, Merkel J held that Gencarelli's use of the email system for the purpose of communicating with ASU members was impliedly authorised by Ansett. He pointed out it did not follow from that finding that her dismissal was for a reason prohibited by s 298L(1) of the Act. 171 After considering other possibilities, Merkel J held the only arguable s 298L(1) reason was that stated in para (a). He referred to Cuevas, GMH v Bowling and other cases before concluding (at paras 72-75): "Subject to one qualification, the authorities establish that a clear line exists between a dismissal for activities that fall within par (n) (previously par (f)) and a dismissal by reason of the holding of a union office which falls within par (a). The qualification is that a dismissal based on the activities of a union delegate or officer must fall within par (n), rather than par (a), if it is to be for a proscribed reason, unless the reasons proffered by the employer and accepted by the Court do not 'exclude the possibility that [the dismissal] was associated with the circumstance that the [employee] was a [delegated officer]': see Mason J at 619 in GMH v Bowling. As noted above and relevantly, for present purposes, his Honour added that if the possibility was no more than 'slender' the circumstance might be disregarded as one which was not a substantial and operative factor in the decision. I do not take his Honour as suggesting that the Court is to determine the matter on the balance of possibilities, rather than of probabilities. Rather, his Honour was stating that in a case in which the dismissal of a union official or delegate occurs in circumstances that are closely associated with the activities of the employee in that capacity, the employer carries the onus of rebutting the very real possibility that the dismissal was associated with the circumstance that the employee was an official or delegate. A failure to do so can result in the Court determining that, under the statutory scheme, the dismissal was for a proscribed reason. In the present case there is no doubt that Gencarelli's dismissal was closely associated with her activities as a delegate; she was dismissed for those very activities. Thus, putting to one side the present requirement that the reason only be an operative factor, it follows from the foregoing discussion that the issue in the present case is whether Ansett has discharged its onus of excluding the possibility … that Gencarelli's dismissal was not associated with the circumstance that she was a delegate. Gencarelli was dismissed because, in her capacity as an ASU delegate, she distributed the ASU bulletin via Ansett's internal e-mail system to ASU members on 3 December. … Ansett employees, including union delegates, are only authorised to use its IT and Communications facilities and resources for 'performing lawful business activities' in accordance with Ansett's IT Policy. If Gencarelli's use had constituted misconduct or was otherwise an unauthorised use, then her dismissal for those reasons may be sufficient to exclude the possibility that she was being dismissed for the reason that she was the ASU delegate. Further, in such circumstances it would not have been part of her duties or functions as a delegate to misuse Ansett's IT system. Any such use might, to that extent, be disassociated from the circumstance that she was an ASU delegate. However, the corollary also applies. If Gencarelli's use was an authorised use and in so using Ansett's e-mail system she was discharging her duties and functions as a delegate, it becomes commensurately more difficult to conclude that Ansett has excluded the possibility that her dismissal was associated with the circumstance that she was an ASU delegate." (Original emphasis) 172 I respectfully agree with Merkel J's analysis of the effect of the majority decision in GMH v Bowling. In Australian Workers' Union v BHP Iron-Ore Pty Ltd ("AWU") [2001] FCA 3, 106 FCR 482, Kenny J made a comment about s 298L(1) that may reflect the view of Barwick CJ in GMH v Bowling. But the issue seems to have been peripheral to the case she had to determine and it is unclear whether it was fully argued. Her Honour made no reference to ASU. In any event, if there is a conflict between ASU and AWU, I am bound to prefer the approach that most accurately reflects the majority (not minority) opinion in the High Court. 173 The analysis made by Merkel J in ASU is pertinent to the present case. It is clear that, both in her industrial activities on 27 August and in giving the interview to Ms Horin, Ms Buckland was wearing her FSU "hat"; the activities for which she was disciplined were associated with her position in FSU. Therefore, adopting the course taken by Merkel J, it is necessary to ask whether the particular activities that gave rise to the disciplinary action may have constituted misconduct of a sufficient degree of seriousness as to exclude the possibility that she was being counselled and warned because of her position in FSU. 174 I have already referred to the difficulty in identifying the substance of the fourth complaint. Put at its highest, it seems to embrace a non-deliberate failure by Ms Buckland to ensure Ms Gannon was created on the branch computer and her causing or suffering a brief delay in resumption of work after the staff returned from the stop-work meeting. Even added together, these items could hardly be regarded as misconduct sufficiently serious to warrant formal counselling and a formal warning about future disciplinary action. 175 If, contrary to my understanding of the situation, the fourth complaint also extended to Ms Buckland's failure to ascertain, before 22 August, the names of those members of her staff who proposed to absent themselves from work on 27 August, there can be little doubt any failure of duty in that regard would have been associated with her position in FSU. As FSU national president, she obviously had an interest in making the stoppage of work as effective as possible. 176 The situation in relation to the newspaper interview is more complex. 177 Counsel referred me to an interesting (although now relatively old) article by Mr G J McCarry of the University of Sydney, The Contract of Employment and Freedom of Speech (1981) 2 Sydney Law Review 333. In that article, Mr McCarry pointed out there is an implied term in a contract of employment that the employee will act in good faith: see Robb v Green [1895] 2 QB 315 at 317 and Blyth Chemicals. However, there is a question as to the import of that obligation in relation to public speech. 178 Mr McCarry thought it is necessary to distinguish between statements of fact and comment. At 334 he observed that the distinction had proved troublesome in defamation law. But, he said: "… the distinction seems necessary because perfectly legitimate reasons for requiring an employee to be silent with regard to facts or information (e.g. the protection of trade secrets or property rights) can have no application to comments or observations which do not involve any use or disclosure of fact." 179 Mr McCarry thought there are occasions when it is permissible for an employee to make statements of fact concerning the employer's business. The primary example is where the employer has engaged in some iniquity. Another example is where there is a relevant statutory protection. Interestingly for the present case, in footnote 32 Mr McCarry suggested that s 5 of the Conciliation and Arbitration Act, as it then stood, probably protects a comment by an employee, "at all events where a breach of an industrial agreement or award is involved". 180 Mr McCarry went on to say there are other situations in which an employee may or may not be free to speak out. He identified five factors relevant to determining that issue, but said "they fall far short of producing a cohesive body of principle". The factors are: "1. The way in which the employee obtained the facts or data on which his comment is based; 2. The employee's position with the employer; 3. Whether or not the employee is bound by a code of professional ethics; 4. The employee's motives; 5. The extent of dissemination of the employee's comment." 181 Mr McCarry argued the current law is too restrictive of employees' freedom of speech. He said (at 333) it should be reconsidered for two reasons: "First, many employers are large corporate bodies – some are so called 'multi-national' corporations – and the policies and practices of these employers can have repercussions throughout a community or, indeed, on a national economy. Such matters … are now generally regarded as issues for legitimate public concern and debate. Are employees to be precluded from joining in or initiating public debate on questions such as these? If so, on what basis and to what extent? A second reason why the employee's position should be looked at is that rising standards of education in the community are apparently changing the expectations and capacities of the work force. The law should be examined to see whether it needs any adjustment to cope with these educationally caused changes." 182 Mr McCarry made recommendations for revised rules, dealing separately with private sector and public employees. In relation to the former, he proposed: "1. That any comment or analysis by an employee be based on an adequate knowledge of relevant facts; 2. That such comment be couched in moderate and temperate language; 3. That any comment be subject to the general law with regard to such matters as defamation, unseemly words, etc; 4. In the event of dispute as to whether the first condition has been met, the onus should lie on the employee." 183 In some situations, of course, extra-contractual constraints apply to employees. The most significant of them is that imposed by rules developed by courts of equity for protection of confidential information. It would clearly have been a breach of those rules if Ms Buckland had publicly revealed information about a customer's business or financial affairs, or market sensitive material such as her branch's trading performance, or personal information about members of her staff. But she did not do anything like that. She merely commented to Ms Horin about women's job insecurity. It is true that, in doing so, she referred to the "psychological warfare going on in banks, pressure to do more with less", but this was more of a comment than statement of fact. The only statements of fact attributed to Ms Buckland in the article, or – as far as the evidence indicates – made by her to Ms Horin, were unspecific allegations of a manager having "threatened to replace female staff with temps", women being "under pressure to cut their hours of work, or do unpaid overtime" and performance monitoring being applied. None of these statements could be, on have been, argued to offend the equitable rules about confidential information. 184 I am not aware of any recent judicial decisions in relation to the matters discussed by Mr McCarry. When the issue arises for decision at an appellate level, the law may develop in the manner suggested by him. It is not necessary to speculate about that. It seems to me that, even applying the law as stated by Mr McCarry, but bearing in mind the five factors he identified, it cannot be said the interview given by Ms Buckland to Ms Horin was a serious transgression of her employment obligations. It may not have been a transgression at all. Ms Buckland's statements were very general and made in the context of a discussion about an important public issue. She did not identify her employer. 185 In any event, whatever view might be taken about the merit of Ms Buckland's decision to talk to Ms Horin, it is clear she did so because of her position in FSU. Ms Buckland deposed that she undertook the interview at the request of an FSU Branch official. That evidence was not challenged. 186 In these circumstances it seems to me the issue is determined by the principle applied by Mason J in GMH v Bowling. The activities covered by the fourth and fifth complaints were intimately associated with Ms Buckland's position in FSU. 187 Although Mr Inglis asserted he was not influenced by Ms Buckland's position in FSU, I am unable to accept his assertion. 188 From his first meeting with Ms Buckland, Mr Inglis allowed her position as national president of FSU to be a point of antagonism between them; "you and I probably won't see eye to eye about the way the Union operates". On a number of subsequent occasions, Mr Inglis displayed his antipathy to FSU – for example, removing FSU circulars from the Padstow branch notice-board – and made demands he would have realised would embarrass Ms Buckland – for example, that she influence her staff not to attend the stop-work meeting. 189 It is important to note that, at no stage, has Mr Inglis impugned Ms Buckland's integrity or general competence as a branch manager. All the issues raised by him have arisen out of her FSU position and activities. Given that these have shaped Mr Inglis' attitude to Ms Buckland, it would be naďve to accept his assurance that they had nothing to do with his decision, on "the day of industrial action", to require her to attend for counselling and his subsequent decision to issue a formal warning. I cannot find, to paraphrase Mason J, that those decisions were divorced from the circumstance that Ms Buckland was a senior FSU officer. 190 The Bank has not established that the counselling of Ms Buckland, in respect of the fourth and fifth complaints raised on 25 September, and the subsequent warning about those matters, was not carried out for reasons that include the fact that Ms Buckland was an officer of FSU. 191 The second s 289K claim is made out. The s 298M claim 192 Section s 298M provides that an employer "must not (whether by threats or promises or otherwise) induce an employee … to stop being an officer or member of an industrial association". 193 The Bank has not induced Ms Buckland to stop being an officer or member of FSU. She continues to be a member and the national president of the organisation. It may be that an injunction quia timet could be granted in order to restrain an employer from continuing with conduct likely to ripen into a contravention of s 298M; for example, the maintenance of threats or pressure calculated to induce the employee to resign as an officer or member: see s 289U(e) of the Act. However, no application has been made for an injunction, and there is no evidence of continuing conduct by the Bank that is calculated to cause her to resign her office or membership. 194 The relief sought in the Application in relation to s 298M is twofold: a declaration that the Bank "breached s 298M of the Act in that it induced Ms Buckland to stop being an officer or member of an industrial association" and the imposition of a penalty. A penalty may only be imposed if a contravention is complete. 195 Ms Howell argued her s 289M claim by reference to conduct by Mr Inglis which, she contended, had the effect of putting pressure on Ms Buckland to choose between her job and her position in the FSU. Mr Inglis may have applied such pressure and, perhaps, this might be described as an attempt to induce Ms Buckland to resign. But s 298M does not cover attempts. 196 The first two definitions of the word "induce" given by the Macquarie Dictionary are: "1. to lead or move by persuasion or influence, as to some action, state of mind etc; 2. to bring about, produce, or cause." There must be a causal connection between the inducer's action and a completed reaction by the inducee. Whatever the tendency or motivation of Mr Inglis' actions, Mr Inglis did not induce Ms Buckland to resign from either her office or as a member of FSU. 197 The s 298M claims fail. Disposition 198 Counsel requested an opportunity to consider my findings on the merits of the applicant's claims before making submissions on any question of penalty. I will provide that opportunity. However, I am anxious to avoid the expense of a further oral hearing. Submissions on penalty should be made in writing. 199 I propose to make declarations dealing with the fate of each of the applicant's four claims. I will reserve the question of penalty and direct the applicant to file and serve submissions on that matter by Tuesday, 28 May 2002. The respondent is to file its submissions by Friday, 7 June 2002 and the applicant is to file and serve any reply by Monday, 17 June 2002. I certify that the preceding one hundred and ninety-nine (199) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wilcox. Associate: Dated: 17 May 2002 Counsel for the Applicant: Ms C Howell Solicitor for the Applicant: Turner Freeman Counsel for the Respondent: Mr H J Dixon SC and Mr J Tuck Solicitor for the Respondent: Freehills Date of Hearing: 25-27 March, 22 April 2002