—™~ " AD IN THE FEDERAL COURT OF AUSTRALIA - INDUSTRIAL DIVISION V_No. 14 of 1977 PETER CAMPBELL JONES v. THIESS BROS. PTY. LIMITED CATCHWORDS Conciliation and Arbitration Act s. 5(1)(a) and (f) - employee dismissed by reason of the fact that he was a union member and delegate. Meaning of "delegate" - multiple reasons for dismissal - "substantial and operative" factor in dismissal. Reinstatement - to be treated separately - employee's conduct considered but potential industrial unrest not to preclude reinstatement. Bowling v. G.M.H. (1975) 8 A.L.R. 197. G.M.H. v. Bowling (1976) 12 A.L.R. 605. fou st. ALL i nS cee VNo. if of 1577 On AUSTAALLA Se eee Ne Tn the matter «7 - INDUSTRIAL DIVESTON DHS CONCITTATLOM AMID Alas ACT TOG Between - Ben CAUP3ULL JONES Irfoumeant And - THIESS PROS Pry, LiMiTED Datenrdenit WE RENCE: YErTY, J. DATE: fist Toby i607 PLACE: MELEOUHNS ORDER OF Tut COURT: This Court orders - (a) that the dofendeut ss convict ea under s. 5 (1) (a) end (f) ef the Conciliation and Arbitraticn Act 1964 ; (b) that the defendant ts ordered to p2y a penalty of $400; (c) that the znformant Peter Coanshe?. Jones be reinstate 2d by rhe aewendene Thiess Rros Pty v4, in hos old position or in a similar DOFLVLON; (ad) that the parties have liberty to apply es to the reasbursesiert of any wages lost by the informant; (e) that tinere be no order es to costs, and (f) that the parties huve Vibo apply in respect of tho in appluicatian shai th ordered co pay his had © IN THE FEDPRAT, COUT ) OF AUSTRALIA ) V. No. 44 of 19977 INDUSTRIAL DIVISION Betweciu: PETER CAMNPPRELL JONFS Inforrant And: THIESS BROS. PITY. LiMiTED Defendant 1st July, 1977 } -™ a woMs GQ On 26th April 1977 Peter Campbell Jones (the :i:forment) laid an information against Thiess Bros. Pty. Limited (tis defendant) that on 1st April 1977 1t had dismisscd him contrary to the provisions of s. 5(1)(f) of the Conciliation and Arbitration Act 1904 (as amwended) (the Act). Mr. Brian Lawrence of counsel appeared for the informant, and Mr. Neil Brown of counsel appeared for the defendant which pleaded not guilty to the charge. During the hearing counsel for the informant sought leave to amend the information, counsel for the defendant consented and leave to amend was granted. In its final amended form the information alleged that the defendant - "as an employer of the informauc on the 1st Aprii, 1977 at Dartmouth contrary to the provisiens of Section 5 (1)(a) and (f) of the Concaliatzon and Arbitration Act 1904 (as amewted) did dismiss che informant the said Peter Cuvipbell Jones by reacton of the circumstance that the said informant being, e member of and a delegate of tne Australian 'You kers Union on organisation of evmsloyees registered pursuant to the Conciliation and Arbilretion Act 190- (as amended) did an act or "hang which wes lawful for the purpose ct fuitherzug os procectins the inductcial intwrests of the caid orpanteetion ard its wember+ being an act or thing done withia the limits of authority ex_-rcessly corferred oa hin by the said organisation in accordance with the ruies of the said organisat.on and Further o1 in the alternative by reason of the circumstance that the said informant was a member of and a del.gate of the said organisation." As to the form of the information, I agree with the observation of Woodward, J. in Bowling v. General Motors-Holdens Pty. Ltd. (1975) 8 A.L.R. 197 at p. 218 (with which observaLlion Smivhers and Evatt, JJ. agreed at p. 198) that - "It is proper to allege a dismissal 'by reason of the circumstence that' end then to refer to two or more of the matters listed. JLhesc could be set out either cumulatively or alternatively as the evidence required. and as long as any one of them was estabiished, the offence would be made out." After the hearing had commenced, a second information alleging that the dismissal was contrary to Lhe provisions of s. 5(1)(a) of the Act was laid by the informant on lsl June 1977 and the summons thereon was made returnable the same day. Service of the information and summons was not effccted before the appointed time for the hearing and after the amendinent of the original information, the informant was granted leave to withdraw the second information. Section 5 of the Act, so far es is material, provides as follows: "5,(1) An employer shall not dismiss an employee, or injure him in his employment, or alter his position to his prejudice, by reason of the circumstances that the employee ~- (a) is or has been, or proposes, or has at any time proposed, to become, an officer, delegate or member of an organization, ur of an association that has applied to be registered as an organization; or uw (f) beiug an officer, delegate ov nember of an organization, has done, or proposes to @o, an act or thing which is Jovwful for the purpose of furthering or pretecting the industrial interests cf the organization or its members, being on act or thing done within the limits ot authority expressly conferred on him by the organization in accordance with the rules of the organization. 3. A reference in this section to an ao@ganizaticn shall read as including 3 reference to a branch of an organization." The defendant, Triess Broc, Pty. Limited, is constructing on the Mitta Mitta River, approximately seventy miies cast of Albury, a dam known as the Dartmouth Dam, When completed it will be the largest earth and rock fill dam in Australia. At the time of the hearing the diversion tunnel had been completed and the dam construction was in progress employing about four hundred members of the Australian Workers' Union (the Union or the A.W.U.). that:- (1) (2) (3) (4) (5) It was established either by evidence or by adnissicn The informant was at all material times employed by the defendant. The Defendant dismissed the informant at Dartmouth on 1st April 1977. At all material times the informant was a member of the Union which was an organization of employces within the meaning of the Act. At all material times the 'aformant was the clected A.W.U. Representative at DParlmouth within the meaning of Rule 97 of the Union's rules. As such Representative the informant had author ity expressly conterred on him by the Union in accordance . with the rules of the Unicn to "act for the persons on the job" at Dartmouth and "pover to call meetings of members" of the Union. (6) On 31st March 1977 the informant called a meeting of A.W.U. members at Dartmouth to be held in the afternoon of 31st March 1977, for the purpose of furthering or poroteclting the inaustrial interests of the members. In my opinion tne informant cs 4.W.U. Represeitativ> was a "delegate" of the Union within the meaning of s. 5 of the Act. I agree with the view expressed by Smithers and Evatt, JJ. in Bowlingts Case (197) 8 A.L.R. 197 at p. 199 tinst: "It 1s clear tnat the words "officer" and "dolegate" in s. 5 do not necessarily have the same muszning as such words may have where they appear in the rules of organizations." I consider that the informant's action in calling the meeting held in the afternoon on 31st March 1977 was an act cone within the limits of the authority expressly conferred on him - see para. (5) above. Section 5(4) of the Act provides as follows: "In any proceeding for an offence against this section, if all the facts and circumstances constituting the offence, other than the reason for the defendanv's action, are proved it shall lie upon the defendant to prove that he was not actuated by the reascn alleged in the charge." In my cpinion the matters cet vul in the numbered paragraphs above constitute proof of "all the facts and ir c1reumstances constituting the offence, other than the reason for the defendant's action" (see Roberts v. Generel Motorr-Holsen's Employeest Canteen Society Inc., (1975-76) 25 F.L.R. 415.) Accordingly s. 5(4) required the defendant to prove to the satisfaction of the Court that in dismissing the informant it was not actuated by either the reason that the said informant was a member of or a delegate of the Union (which I skal cali the s. 5(1)(a) reason) or the reason that the informant as @ member or delegate of the Union did an act or thing for the purpose of furthering or protecting the industrial interests of the Union or its members, being an act or thing done within the limits of authority expressly conferred on the informant by the Union in accordance with its rules (which I shall] call the s. 5(1)(f£) reason). The defendant was therefore required to prove, ona balance of probabilities, that neither of the two reasojis was a "substantial and operative factor" influencing 1t in dismissing the informant. (See General Motors-Holdens Pty. Ltd. v. Bowling (1976) 12 A.L.R. 605 at p. 616, per Mason, J.) Mr. Brown for the defendant called a number of witnesses including John Gilbert Hamilton (General Manager, Southern Region of Thiess Bros. Pty. Limited), Kenneth Frederick Crane (Project Manager at Dartmouth Dam), Lawrence Albury Taggart (Industrial Officer) and Terence William Cleal (Senior Industrial Relations Advisor of the Victorian Employers! Federation). The informant was Gismissed on the morning of 18t April 1977. He had been the A.W.U. Representative at the Dartmouth dam site since 9th June 1975 and hac before that date played a role as a representative of the A.W.U. members. There was considerable industrial trouble at the site from time lo time over the years before 1977 but it appears thar the industrial situation was quiet early 1n 1977. The informant said (p. 64) thet his relations with the management in early February 1977 were "probably better than at any other stage of the gob". Mr, Eikomo said that he had very good relations with the informant as Union Representative until in february 1977 an overtime ban was imposed (p. 563). During a period cf approximately 2 years before the February 1977 overtime ban, the informant had razsed with officers of the defendant company on a number of occasions a matter which was described as the Back-Pay and Meal Money issue. Mr. Crane agreed in his evidence that the issue had been raised six or eigh .imes over that period including a discussion in January 197, On 8th February 1977 a meeting of the A.W.U. members at Dartmouth dealt with three matters one of which was the issue of Back-Pay and Meal Money. As to this aspect the meeting carried the following resolution: "Until such time as the Back-Pay and M/M enomalies have been fixed up to the Union satisfaction, and the Company agrees to pay all time in arrears back dated from July, 1974. all A.W.U. members wi11 only work 6 days a week, Mon. to Sat., 9 hours per day limit, re no excess overtime." The three matters dealt with at tne mictting were the subject of vroccedings vefore Mr. Commissioner Brown in the Conciliation and Arbitration Commission in Mllbourr? on Friday, 11th February 1977. As to the Back- Tay and Meal Money issue the Commissioner expressed a vicw favouruble iv the Union's contention and said that, in his view, actron should be taken to ensure thit any moneys ow21g would be paid, The informant veturned to Dartaouth late on Fro zy, With February 1977, and early on the following morning went to see the A.W.U. members in the buses which were to take them cur to their particular places of work. The informent reported very briefly to the members as to the result of the procecdings befcre Mr, Commissioner Brown end asked them to Jift the overtime ban immediately without waiting for the hoJding cf a meeting. The ban was in fact lifted as from that day and a mecting of the A.W.U. members held on 16th February 1977 was ~cld by the informant that the company was going to pay the back pay in connection with the meal money issuc. In the proceedings before this Court the defendant company denied that it had ever agreed to make such payments and accordingly denied that the company's announcement that the moneys would not be paid (made on 31st March 1977 to the Union Representatives after the morning meeting of the A.W.U. members) was a breach of an agrecuent as claimed in the resolution carried by the afternnoom meeting of A.W.U. members on the same day. It is not necessary fcr the purpose of these proceeding: to decide whether there was in fact any express agreement by the company to pay the amounts in question. In my view the conmpany'= conduct over the period of seven weeks from 11th Februcry 1077 to 31st March 1977 was such that the informant and the A.W.U. members were led to believe and did in fact belictve tina: the defendant company would make the payments in conYormity with the view expressed by Mr. Commissioner Brown. The company's conduct on this issue ~ both its actions and its failures to act - may be seen in its perspective in the following list of events: (1) The overtime ban of Sth February 1977 was expressly declared by the meeting of A.W.U. members, to be in support of the Buck-Pay and Meal Money Claim. (2) Mr. Taggart on behalf of the defendant company attended the proceedings before Mr. Commissioner Brown cn 11th February 1977 knowing that that issue would be raised (p. 962). (3) Mr. Crane, Mr. Eikomo, Mr. Barber and doubtless other officers of the company were quite confident that the overtime ban would only last a few days, i.e. until about the time of the proceedings before Mr. Commissioner Brown. (4) Mr. Cleal on behalf of the company told Mr. Commiss.oner Brown that no point of challenge wouvld be taken as to tne Commissioner's power to deal with two matters ancluding that issue (p. 34 of Exhibit "M"). (6) (7) (8) (9) (10) Mr. Commissioner Brown expiessed his v.ew ii favour of the union and said that anything owing snouja he paid (p. 964). The informant believed from Lith February 1977 until 31st March 19/7 that the defendant had ageced to pay the amounts of back pay owing and was examining the company's records to determine the amounts of back Ne pay owing to A.W.U. members in accordance with t view expressed by Mr. Commissioner Brown, The defendant company's officers began work shortly after llth February 1977 "extracting informatior from our records trying to determine whethcr or aot oerythiny, was entitled to be paid and it was auite a long and laborious process" (Mr. Taggart. p. 965). Over the period from Lith February 1977 to 31st March 1977 the informant quite regularly raised with Mr. Taggart the issue of back pay and often asked a question the substance of which was - "When is it going to be paid?" (p. 965). On Mr. Taggart's evidence the informant was never told that the company was still considering "whether" to make the payments in question. During the period of approximately seven weeks Mr. Taggart never told the informant that a decision had not been made by the company as to whether Lo pay (p.349) the "long and laborious process" of investiguting the company's records "to determine whether ot not anything was entitled to be paid" (p. 965) oceunied one cr two (11) (12) (4 ) employees full time and otiers pare tine. The company did not seek a legal opinion until Jate March 1977 (Mr, Cleat) or until 21st March 1°77 1f one accepts the date given by Mr. Crane when he gave further evidence on this matier after Mr. Cleal's evidence. The company in fact paid some or the A.W.W. members the amount of money under che meal money clause cf the avard in respect of each of two or three teeks before Mr. Crane directed that the payments be s*'opped. On 3ist March 21977 before the wornzng meeting of che A.W.U. members began,Mr., Taggary~ told the informar.t, his co-representatives Messrs. Knight and Lanjwaid, and the Union Organizer Mr. Kaylor--thompson, that the back pay would be paid to 95% of the mempers on the folloving Thucsday. However, whilst the morning meeting vas i progress, Mr. Crane directed Mr, 'laggart that the payments in question were not lo be made. No satretactery reason was forthcoming as to why that direction was given at that point of time. The compeny had nov received any legal advice at that stage. Mr. Crane in his eviderice claimed that tnis did not represent a change of attitude on the company's part. He said that he had held the view since about 16th February 1977 that the payments should not be made and that if made they would be queried by the company's auditors. I do not accept Mr. Crane*s evidence on this aspect. In my view there was a change of attitude on the defendant's part on or shorvly before 31st March which was not communicated to the Union Representatives until after the morning meeting of the members. to (14) 4. The resolution carried by the A.W.U. members ou 373% March 1977 at the afternoon meeting expressly accused the company of "having gone back on the agreencut reached through the Cheirmanship of Commissioner Brown oe. re the payment of back pay of clause 21, sub-claure (d)({a2) of the award." Further, the lest paragreph of the resolution referred to "the irresponsible attitude of the company in not informing us of their refusal to honour the abeve agreonene before the union meeting bold this morning", On the followi: g day Mr. Crene issued a circular (Exhibit U) addiessed "To all A.W.U. Employees" and relating to the overtime ban imposed by the resolution of 31st March 1977. This circular did not deny in any way the allegation jn the resolution that the company had "gone back on the agreement", In addition to the foregoing numbered paragraphs (1) dealing with the events up to ist April 1977, 1t is convenient to include at this stage two further matters regarding the allegation in the resolution that the compary had "gone back on the agreement", (a) No evidence was led from any witness before the Court to suggest that, when the resolution (containing the passages in paragraph (14) above) was read to Mr. Taggart in the presence of Mr. Eakomo and Mr. Barber, anyone denied on behali of the defendant to the ie. informant or the unio. co-repieseutarii,es thas Mic company had "sone back on the agreemenl". Nor was there evidence that any company representative on that occasion suggested that the informaut bid misled the meeting of the A.W.U. members in the afternoon of 31st March by claiming that the company had "gone back on the agreement." (b) Although evidence was led that Mr. Crane discussed the resolution wilh Mi. Hamittor on Bist March, av ~ was not suggested that Mr, Crane had said to Mr. Hamilton that the inJormant had misled the meoting by saying that the company nad "gone beck on th agreement". The events of 31st March 1977 iaust now be examined in greater detail. After the morning meeting of the A.W.U, members the informant was told by Mr. Taggart in the prescnee of Mr. Kaylor-Thompson (amongst others) that the company had decided not to pay the back pay until the company had obtained "a further Court ruling". T accept tne evidence of Mr. Kaylor-Thompson that when asked the reason why the money was not going to be paid Mr. Taggart said "it was out of his control", Following upon this discussion the informant calied a further meeting of the A.W.U. members for the afternoon of that day. At that meeting the following resolution wus carricd:- "DARTMOUTH DAME PROJECT &.W.U. MEETING HELD 31/3/77 At 4,45 EM In view of the Company having ecne back on the agrecucrne reached through the chairmansl.ip of Commissionc? Brown in Melbourne on 15.2.77 re thc payment and back pay ot Clause 21 sub-clause (L11) of the AWW.U. G. & MM. Award, we, the members of the Union inform tne Goapun,' thal we will not work auy excessive overtime above the agreed 9 hours per day six deys (Mondas-Satumdsy ) a week. And that this excess overtime Lau will remar. in force until the above agreement is adhered to. mid the members actually receive al] payments and bacit pay due to them - re 9% hours or more overtime. The only exception of the above ban will bu First Aa Personnel, Monday to Saturday 24 hour per day coveré,,c. Water carts to work as required - for cafety. Shot firers to start one hour later, and finish one hour later, to enable shot to be fired in savely. One M/C, loader, dozer or grader, to stay back after might shift to clear a single lane path, after tne shot, for safety reasons. AL! oLhber starting times te ve &e per before the ban. If in an emergency an alteration to the abuve may be agreed upon after the site representative and shife representatives have met and considered such an emergency, without calling a further meeting of Lhe members, Furthermore, because of the irresponsible attituc. of the Company in not informing us of their refusal te honor the above agreement before the Union meeting held this morning we will press the Arbitration Commission for payment for the time lost during this present meeting - or payment for the time lost which we feel was forced upon us." The evidence left some doubt as to whether the last thirteen words formed part of the resolution - a matter which need not be determined. It was common ground that al] of the resolution except the last paragraph was in the handwriting of the informant. After that meeting the informant reported to Mr. Taggart, in the presence of Messrs. Eikomo and Barber, the terms of the resolution, allowed him to take photostat conies of it and then answered certain requests by Mr. Taggart for exemptions from the overtime ban. The terms of those requests and the answers then recorded by Mr. Taggart were tcndered it evidence (Ex. 3) and were in the following terms: 4, "COMPANY REQUESTS RF CVERITINE BAN The following requesis for exemptions were eskod for. Answers are underlined. 4. Drill and blast operations. (a) Covered in resolution. 2. Rolling in clay. (a) Refusal. 3. Concrete pours. (a) Refusal. 4. Grouting. (a) Agreement to be vorked out. 5. Transport, (a) Manheul drivers only. 6. Cookhouse personnel. (a) No limitations. 7. First aid. (a) No limitations, excepting no Sunday work," The terms of both the resolution and the answers to the requests for exemption were read over the telephone to Mr, Crane by Mr. Taggart. Mr. Crane discussed tne matter with Mr. Eikomo and then spoke by telephone to Mr. Hamilton. Mr. Hamilton gave evidence that he could have overruled Mr. Crane's decision to dismiss the informant but that, had ne done so, Mr. Crane could have taken the matter higher. However, Mr. Hamilton did not attempt to overrule Mr, Crane as he took the view that ie must back the decision of Mr. Crane as "management on the site". In my view Mr. Hamiltou's role in the dismissal was essentially one of "eciding to "back tre cute management", He was necessarily dependent on ltr, Crane for information as to what were the grounds for the dismissal. I agree with the submisgcion made by Mr. Brown in his finel address on behalf of the defendant, that, on thc evidence. the effective decision to dismiss the informant was made by Mr. Crane. Mr. Crane was the main witness for the defendant and was cross-exarined by Mr. Lawrence at considerable length. His evidence was most unsatisfactory and I rogard significrnt parts of 1t as being quite unreliable. It consletely varied to satisfy me that the informant had not been diemissed To1 either the s. 5(1)(a) reason or the gs. 5(1)(f) reason. Before dealing with Mr. Crane's evidence as to the reasons for the dismissel, I shall briefly refer to some of tine unsatisfactory aspects cf his evidence which, when combined with his demeanour, led me to regard him as an unreliable witneéss whose evidence 1 am not prepared to accept where it conflicts with the evidence of other witnesses either for the defendant or for the informant. (a) On a number of occasions Mr. Crane showed a distinct unwillingness to give direct answers to questions, for example, as to whether the defendant company wanted certain employees to start and finish work later than the hours worked by the main body of the union's members employed by the defendant. (See transcript pp. 665, 872-874:). (b) On a significant number of occacsons the witness revealed, both by his demecnour and by his evidence, that be was prepared to mould his evidence in order (c) (a) (e) Ta, to fiat in with particular facts aud circumstances Lut to him. Mr. Crene's evidence (p. 704-5) was not conviussi in his attempted explanation of the incorrecc statenen! made in a circular (Exhibit "U") to all A.W.U. employccs by Mr. Crane on 1st April 1977. His evidence wac gives on a number of aspects as 1f he had forgotten that ne wie a witness and thought that he had to "argue" the care for the defendant. On at least a docen occasiors he voliuntesred information which was not responsive te the question asked - w7th the obvious intention of putting tne informant in an wifecvsus- able light. This tendency was apparent quite early in his evidence and continued to manifest itself from time te time during his evidence. The witness asserted that on 31st March 1977 he belicivcad that the informant had falsely, with incention to deceive the defendant, misrepresented to the defendant's officers the substance of the resolution carried by the afternoon meeting on 31st March 1977 (pp. 902, 905, 908, $17). In my view this was an extremely serious charge to make and one which, if true, would have been a reason for aismicsa which would not have offended against s.5. However, I reject his evidence on this aspect partly because of the view I formed of him as a witness and partly for the matters which follow in (e) and (f) below. No other witness supported Mr. Crane on this aspect. The assertion in (d) led the witness to say that he did not consider asking Mr. Basil Knight whether the resolution (presented to the defendant by the informant) was false "because he would have joirnec in the falsehood" (p. G21). He eisewhere asserted (pp. 908, v22) rhat Mr. Knight was a party to the alleged falsvhaed althotigh in other parts of his evidence the witne:s appeared to be quite favourably disposed towards Mi. Kaight whom he described as a "responsible fcliow" (p. 225) and whose (responsible) conduct as an A.W.U. Representative the witness on a aumber of occasions sought to contrast with the conduct of the irformant,. (€) The witness further attempted to sucport bos aljesatien in (au) by giving evidaue: (i) that he had told Mr. Tagsart thar & did not believe the resolution was cver passed by the meeting (p. 902) - a statement contradicted by Mr. Taggart (p. 993). Mr. Cran: claimed that he had also told Mr. Eikomo (p. 902) but Mr. Eikomo's evidence gave no support at all to that claim. (ij) that the words on the termination slip given to the informant - "exceeding the ambit of his responsibility" - were intended to convey that the informant had falsely represented the washes of the men (p. 917). The evidence in (i) is rejected both by reason of the witness' demcanour and because of Mr. Taggait's eviderce on this aspect which is accepted. The evidence in (ii) 18 rejected both on the witness' demeanour and on its inherent improbebility. I, my view the words on the termination slip were quite inappropriate to convey that the informant had been guilty of such 4 serious charge as to deliberately deceive the employer as to the wishes of the members expressed in a resolution. No other witness called on behalf of the defendant supportcd "i. Crane on this aspect. On the contrary Mr. Hamilton gave evidence that Mc. Crane sent him a copy of the resolution (supplied ':o the defendant by the informant) but never suggestcd io Mr. Hamilton then or later that it was not a resolution of the vr a. In contrast to tr. Crane, Mr. Hanilton at the time of giving evidence still accepted it as being a resolution of the men (p. 957). I now turn from those illustrations of the wunsatisfa Lory nature of Mr. Crane's evidence in gencral, to his evidence as to the reasons for the dismissal. Mr. Crane advanced a number of reasons for Lhe dismissal which included the following:- (1) The fact that the informant called the afternoon meeting on 3lst March. (p. 690) (2) The terms of the resolution carried by the meeting on the afternoon of 31st March. (pp. 661, 690 & 869) (3) Lack of considcration of the company's position in negotiations with Mr. Tagsart on the evening of 3ist Merch 1977 - which, Mr. Cranc said, was faicly typical of the informant's other negotiations vith the compeny. (p. 687 and see v.884). (4) The fact that the Union Representatives (including the informant} allowed the men Lo return to work before the discussion with the company's representali ¢ on exemptions. (pp. 870-1) The influences that the infurmant "was having on the union, in my opinion, were such that he was finposirg his own will on the union rather thin ceficeting the union's will to the company." (p. $34) Mr. Crane also gave evidence that in his discussion with Mr. Hamilton on 31st March 1977 as to the proposed Mae ae dismissal of the informant. Mr. Hamilton said would be in the best interests of the project if we carried on as you suggested and dismissed" the informant. (p. 622). In this connection Mr. Hamilton gave evidence that he had formed the view that the informant "had considerable influence on the accions that were taken by the A.W.U. on site", (p. 954) "A combination of events in our dealings and negotiations over my associaticn with him in the union position which culminated in Lhis particular resolution (of 3lst March) ... which I felt was inspired by Mr. Jones was directed at disrupting the job and leading towards trcubie". (p. $&3) 2S (7) "There wecse many reasons ind the substantias naluwie of those reasons was in M~. Jones' attitude to his fashion of administering what he called the wmion activity on the job ... atritude towards siuporvision; his attitude towards the company; his atLlitude towards union business; his attitude towods his own position ... as union rep." (p. 884) (8) The Lerms of the exemptions granted to the defendant company at its request. (pp. 874 & 883-4) (9) The fact that (in Mr. Crane's view) the informant did not report, as union representulive, "such an important resolution" to the company as soon as possible. (10) The fact that he called "imion mectings apparently for no reason at the drop of a hat". (p. 691) The evidence established that each of the above items (1)-(7) inclusive was a substantial and operative factor in the dismissal. The evidence has failed to satisfy me that, on the balance of probabilities, item 8 was not also a substantial and operative factor in the decision. Mr. Crane's evidence established that items 9 and i0 were factors in the decision, but I am not persuaded that they were substantial factors. ae 20a. On all of the evidence in the case the dofcndant has failed to satisfy me that it was not actuated by the reasons alleged in the charge as amended. On the conlrazy. in my opinion, the evidence has established that both the s. 5(1)(a) reason and the s. 5(1)(f) reason were substantial and operative factors in the dismissal. In my opinion the defendant company before 31 n ca March 1977 was looking for an opportunity to dismiss the informant who, in Mr. Crane's view, had shown a lack of consideration of the company's position in his negotiations with the company over a period of time (p. 687). I accept the evidence given by the informant and by Mr. Knight that Mr. Eikomo said to the informant, shortly after the imposition of the overtime ban on 8th February 1977, that he was going to get the informant "off the site". Mr. Eikomo, whom I regarded as a truthful witness, said that he could not recall having made that statement but that he could have said to the informant that he was going to ect him off the site (p. 571). 21. In considering thic aspect I have referred in particular to the views held by Mr. Crane as Project Maneror and Mr. Hikomo as General Superintendent because, as I hare ne oF ~ already said, Mr. Hamilton's role in the dismissul wee o "backing site management", However, in a passage whach I heve oO A already aquoted, Mr, Hamilton said to Mr. Crane on 21st March — 1977 "It would be in the best interests of the progect if we carried on as you suggested and dismissed Mr. Jones", (p. 622) In my view the resolution from the afternoon meeting of 31st March 1977 merely gave the defendant company what it, in my view wrongly, treated as a gooa reason for dismissing the informant. The evidence for the defendant failed to satisfy me that the defendant had,by reason of the resolution of the meeting and the answers to its requests for exemption, a valid reason for dismissing the informant. Mr. Eikomc was asked why he blamed Mr. Jones for the words in the resolution instead of the meeting which decided on the resolution. His answer was that "Jones was the spokesman and I could hardly pick any of the others. He was the spokesman, Peter Jones, so he was the one. He was the decision maker; he was the spokesman. He was the one that told us which decision they had made..... - he was the one that toid me ...... and so I blamed him for it." (p. 557/558) A lJiitle later, when asked why he had not dismissed Mr. Knight (who replaced the informant as A.W.U. Representative), Mr. Exkomo said "Because we bad made one example already - Peter Jones w2s sacked on that niynt for the same reason and I could hardly go through all the urion reps." (p. 569). A similar answer was given by Mr. Tegpart when in cross-examination Mr. Lawrence asked hin: "Why was Mr. Jones sacked and not Mr. Knight or Mr. Langma.d?" .... "I suppose 1t could be saia that when a football team wins a premacrsnip, the only one to shake hands with tne President is the Captain". (p. 999) Mr. Brown argued for the defendant company thal the resolution of 31st March 1977, in so far as it referred +0 starting and finishing times for certain classes of employees, constituted a "direction" to the defendant and an inlerverence with management which was a reason why the informent was dismisrcd. Alternatively he argued that the resclution was honestly and reasonably believed by the company to be such a direction and interference. Having regard to what I have said elsewhere in these reasons for judgement, I make the following short comments as to this submission:- (1) In my opinion the reference io starting and finishing times could not be fairly interpreted as being a direction. On the contrary 1t represented a qualification upon the wide terms of the overtime ban set out earlier in the resolution. It was a qualification which the informant and the A.W.U. members reasonably assumed thai the defendant would desire having regard to the request sought by i1. (and granted) in respect of the Februery 1977 overtime ban. 24. I agree with Mr. Brow that Um facts I have sev out show that the defendant 18 not anti-union. It has not been suggested at any time during the hesring that the conpany indulges in anti-union activity as such. Indeed it may well be that the company could have dicmissed the ianformens (after a suitable warning) because he was not spending the agreed propertion of his time on the company's work - Ltiout offending against s. 5 unless some other reason entered inco the digmissal av a subetancrel end operutive Jactor. However, in the light of the evidence presented in thir cceo as to the dismissal of the informant. and the reasons therefor, the fact that the defendant company does not indulge in aati- union activity in general does not result in the defendant being not guilty of the offence with which it is charged. Mr. Brovm also attacked the credit of the informant both in cross-examination and in his fin2l address. I accent in part the criticisms made by him. It 1s true that the informant made an untrue statement in his application fer employment by the defendant company. 1 consider that the informant did not treat that issue sufficiently seriously in the attempted explanation which he geve whilst being cross- examined by Mr. Brown. It is also true - and even more regrettuble -— that the informant was quite careless when he attended for the purpose of swearing to the truth of the contents of his affidavit and the accuracy of the documents exhibited thereto. (2) 1 do not accept thal the company or 1ts vrojcct. manaeer Mr. Crane in fact had an honeet belie? tier any part of the resolution -— or of the ansvers to the requests for exemption - constituted a diruction. (3) The resolution was the resolution of tne meeting - although largely drafted by the informant. (4) As I have indicated cerizer. there were other reasons for the dismissal of the informant. Mr. Brown also sought to use in the defcndant's favour the fact that the defendant company could not be said to have been in any way guilty of anti-union conduct in the way in which some emplovers have sought to avoid having unions operating at their premises or have sought to deter employers from joining unions. Mr. Brown pointed out that, on the contrary, the defendant company had provided office accommodation for the A lW.U. Representative and had for a considerable time been paying the A.W.U. Representative his full weekly wage although he was expressly permitted by the company to spend a proportion of what would normally be his "working time" in estivitics on behalf of the Union. That proportion began at approximately one quarter of his time and then was increased by agrecment to approximately one half of his time and had in practice imreased still further over the months preceding the dismissal of the informant on 1st Arril 1977 - although such lattor increase had not been expresnly agreed to by the company. Again I consider that the informant vhilst peing cross- examined by Mr. Brown did not appeur to apprecrate the seriousness of the matter. In the result a document vas exhibited to the anformant's affidavit and verified ?y lis oath, which was not in fact the document in question. Ag I have said, that conduct is regrettable and Mr. Jones can prop2ri: be criticised for it. However, I ms unable to accept thc sericus allegation put expressly to the informant by Mr. Brown on behalf of the defenjant company (p. 2//:) in the follovwiac passage: "IT want to put this to you again so that there 13 no doubt at all about what che allegation 15 end it 1s a serious allegation I think you would agrees. I am putting to you in arranging tor this cxhibit, this document to be an exhibit to your affid-vit you were seeking to give the impression to anyone who read your affidavit and exhibit that you rere noc directing cr ordering shot-firers aud drillers to start an hour later and finish an hour later but that you were merely permitting them to do cn? --- That ves not the case at all, it was ---" I accept the informant'ts s.orn denial that he hed no such intention. For the reasons which I have given the defendant company must be convicted - a decision whicn I announced on 23rd June 1977 at the completion of the hearing relating to the charge. Having regard to my finding that the defendant before 31st March 1977 was looking for an opportunity to dismis=: the informant and that the defendant merely treated the resolution from the afternoon meeting of 31st March 1977 as a good reason for dismissing the informaut, I consider that it is apprupriate to order that the defendant pay Lhe inaximun penalty of $400. Duriny, the hearing Mr. Lawrence on bchalf of the informant statcd that it the defendant were to be cuivicted, the informant would seek an ordec that he be reimburscd wazes lost by him and also an crder that he be reinstated in his old position or in a similar position. Section 5(5) of the Act provides as follows: "Where an employer has been convicted of an offence against this section the court by which the employer is convicted may order that the cmployee be reimbursed any wages lost by him and may also direct that the employee be reinstated in his old position or ina similar position." Mr. Lawrence asked that the two applications for reimbursement of wages lost and for reinstatement should be heard together and as part of the hearing of the charge that the defendant had committed a breach of s. 5(1) of the Act. That application for a joint hearing was based partly upon the wish of the informant to have the matters disposcd of as quickly as possible. He also referred to the iength of time that the proceedings had already taken at that stage and the probability that the total time spent. on the matters overall would be lengthened if there were a separate hearing in respect of the applications under s. 5(5). Mr. Brown for the defendant company objected that those two applications should not be heard unless and until the Court reached a decision that the defendant had couwmitted an offence under s. 5(1). He objected to the Court hcering either evidence or argument in respect of either of Lhose two applications under s. 5(5) during the hearing of the procecdinys under s. 5(1). After hearing argument on the matter L considered the matter overnight and on 10th June £677 gave the { llowing ruling (p. 659): "Yesterday Mr. Lawrence applied for an order for reinstatement of the informant and an order in respect of loss of wages in the event of a conviction being recorded. He asked that those two matters should be dealt with during the present hearing. Mr. Brown for the defendant company opposed the application and submitted that those two matters should not be the subject of any acpuvert unless and until a conviction had been recorded, Neither counsel vefcrred me to any case" which specifically dealt with the point of Mr. Brown's objection, nor have my own researches overnight revealed any such case. There have been cascs where the matLler of reinstalement and/or Joss of wapes bas been dealt with by the court in one judgment dealine with the question of conviction. However, the reports in those cases do not indicate whether that course was consented to or objected to by the defendant. So in that respect those cases do not throw any light on the problem before ime. There are also cases in which the matter of reinstatement and/or loss of wages was not dealt with in the judgment dealing with the matter of conviction, but instead liberlLy to applv in resprct of those matters was reserved to the informant. And asain he reports of those cascs do not indicate whether that course was followed as a result of an objection by the defendant; so again they throv no light on the question of the argument put here by Mr. Brown. 28, In my view, despite the arguments tor convenience that have been mounted by Mr. Lawrenec, the two issucs of reinstatement and loss o" wages should not be dealt with either as to evidcane or as to argument where the defcndant objects cc thar course. Accordingly, in this case I wiJl rot leer evidence or argument on either issue vaiess ana util a conviction is recorded. I expect to be abie at the completion of the hearing to give my decision on the question as to whether the defcudani is to be convicted. If necessary 1 will reserve my veasens for decision, but in the event of a conviction being recorded I will require both parties to inmcdiately proceed with any relevant evidence which they sesh te call on the issues of reinstatement and loss of weges, t together with any argument which cithese party des bal o c to put on those issues. After the Court's decision to convict the defcndant was announced on 23rd June 1977, the application for reimbursement of wages lost by the informant was mentioned. Counsel for the two parties put forward different figures as being Lne uppropriate amount to be ordered urdcr the subsection. In view of the time which the proceedings had already taken up to that stage and us the application for reinstatement was obviously a mattar which. in the interests of both parties, should be determincd as speedily as possible, 1 suggested that the parties should make further endeavours to reach agrcement as to the appropriate amount to be ordered in respect of wages lost by the informant. Accordingly, liberty to apply is granted to the partics in respect of that application. The application for reinstatement was then heard. Further evidence was called by both parties followed by addresses by both counsel. 29, The cases put on bchalf of the informant and defendant included the following matters which were claumed to be relevant to the exercise of the Court's discretion:- 1. The informant had worked for the defendant company for over three years before his dismissal. 2. His work for the defendant had been satisfactory. As to this aspect, no evidence was led by the employer that the informant had ever teen reprimanded or warned by the defendant company in respect of either his performance of his duties or of his failure to perform his duties as an employee. In the positive case put for the defendant in opposing the application for reinstatement, the criticism made of the informant was directed to his performance of his duties as A.W.U. Representative - not the performance of his duties as an employee except in two matters. The first exception was that, on one occasion in 1975, the informant was found asleep whilst on duty as a gateman. However no reprimand was administered nor any other disciplinary action taken. In all the circumstances I would regard this matter as being of little or no weight. tae Q Further, this allegation was not put to the informant in cross-examjnation and accordingly he had no opportun.ty to deny it or to offer any explanation in respect of it. The other exception was the evidence of Mr. Crane that the informant progressively increased the numbcr of hours oul of his working day which he devoted te union business ~- which had been fixed by the company originally at two hours per day and later ut roeur houcs per day. Mr. Crane said that from about November 1976 until the datc of the informmt's dismissal, the informant was working virtually full-time on union business. This evidence conflicted with that of Mr. Prendergast, the Assistant General Superintendent under whose control the informant was working at the time. Mr. Prendergast's evidence (p. 1396) was that he estimated "hat, during a period extending to the time of the informant's dismissal, the informant was spending 50 per cent of his nine hour day on the work of cutting grass for the company. However, Mr. Prendergast's estimate may not be accurate in that the informant himself in his evidence statcd that he was spending approximately 90 per cent of his time on union business towards the end of his period of employment. In any event, Mr. Crane agreed that he had never personally reprimanded the informant for spending insufficient time on the company's work - nor had he complained to the informant at any time as to that matter. Further, there was no cvidencre of any such reprimand being given to the informant at any time by any other officer of the defendant. In these circumstances I would regard this aspect also as being of little or no weight. 3. I accept the submission by Mr. Lawreme that s. 5 is "designed to protect a delegate against discrimination hy his employer" - Mason, J. in Rowling's Case (1976) 12 AVL.R. 605 at p. 616. IT agree with and adopt the statement by Smithers and Evatt, JJ. in the Australian Industrial] Court in Bowling v. General Motors-Holdens Pty. Ltd, (1975) S A.L.R. 197 at p. 210: ' "lt is basic in such a situation that active representatives of employees may wel! incur the displeasure of management with consequent risks and worries to those representatives. As the informant in this case said "you are brouzht into the firing line". Clearly the purposis of the Act will be frustrated unless employees are able to act as union representatives on the shop floor and elsewhere and negotiate with the rupresentatives of employers without fear that on that account they will suffer in thcir omployment. The itediare object of Parliament in enacting s. 5 can clearly be seen to be to remove fear of adverse action by an employer against an employce Laking union office, and performing the functions of that office." a. I have already indicate'? my opinion that, prior to the dismissal, the defendant was looking For an opportuniiy to dismiss the informant because of bis attitude to the company which showed a'lack of consideration of the company's position." 5. At the hearing of the application for reinstatenent both parties were of the view that, if the informant were reinstated. he would probably again be the A.W.U. Representative on the site - either because his replacement as Reprcs:ntative (Mc. Knight) had been elected on the basis thal it was to be pending the return of the informant or because the informant would be re-elected to the position in any clection held after his return to the site. 6. The defendant's opposition to the applicaLion for reinstatement was based partly on its fear that, if he were Union Representative, "the job cannot continuc jn a sensible and civilised fashion". That argument was bascd upon the evidence including evidence of witnesses called for that express purpose, for example, Mr. Taggart, the defendant company's Industrial Officer. Mr. Taggart stated that the informant in his negotiations with him was "somewhat dogmatic" (which, however, as the witness volunteered, "is probably consistent with a lot of approaches by unions"); that he (Mr. Taggect) "found it very hard at times to rationalise with Mr. Jones"; and that whilst Mr. Taggart corsidcsed that a "problem should be aired on both sides ... fully caxplanatary on beth sides" he considered that that - "did not seem to be the attitude of Mr. Jones. He had a problem and he wanted it fixed, right or wrong, and was most loathe to listen to an explanation of thal pacticular problem and hopeful answers to it." As to this aspect of the defendant's case, I make two observations. First, assuming, contrary Lo my opinion, that ilkcy are matters proper to be taken into account, the specific allegations made, taken at their face value, do not persuade me that the informant had conducted himself in such a way as to justify a refusal to order his reinstatement. That view is reinforced when the allegations are viewed in the light of the whole of the evidence including the evidence of the conduct of the company. Secondly, I do not consider that the allezaliuns there set out (even if accepted at their face value) are proper material for the Court to take into account in considering the exercise of its judicial discretion as to whether to order the reinstatement of the informant under s. 5. No doubt in industrial disputes, as in disputes in other areas, the representative of one party often forms the opinion that the representative of the other party is not being "sensible" or is not being "rational" or is not giving sufficient considerat.iou to the first party's point of view. However, it is for each partly to choore its representative for the purposes of putting tts point of vicw and in my opinion it would not be proper for tlais Court, in exercising its discretion, to attenmpl to judgc whether the Union Delegate was in the past ce was likely te be in the future "sensible" or "rational" in his negotiations with the employer. 7. It was also put by Mr. Brown on behalf of the defendant: "that a very important principle for the court to pursue is that it should not take a course which must - and I think that would not be an exaggeration - give rise to disputation belt.ween the parties and inevitably bring them back to court under the same section with which the court has been occupied for the last four weeks ... if he goes back both partics are going to be back in this court under a charge under the same section and that is as clear as night follows day." That argument is rejected for two reasons. First, I consider it would not be proper for the Court in the exercise of ils discretion to take into account an allegation that an order for reinstatement would be likely to result in either the informant or the defendant or both engaging in such conduct that a further prosecution under s. 5 would be inevitable. Secondly, even jf it weie material proper to Le considered, T am not persuaded. on a consideration of all of the evidence in the casc, that 1t is probable thet sich a result will ersue if the informant be retnstated. 8. Some reliance was also placed by Mr. Brown on iti facl that the company had cnogaged « new employee to perfiim the duties of gracs cutting previously perforined by the informant. I do not regard this as a sufficieut reasen for refusing to order reinstatement. I have formed that view because the evidence fell far short cf persuading me that the new employee would be likely to suffer any hardship or injustice as a result. of any order for reinstatement. Nor did the evidence establish that the defendant, having engaged a new employee, would suffer hardship or injustice as a result of the combined effect of that fact and an order for the reinstatement of the informant. 9. Again, some reliance was placed on an allegation that the return of the informant to the site as Union Representative would lead to a loss of morale anongst the employees. Assuming (without deciding) the relevance of this matter,which would be difficult, if not impossibic, to assess with any accuracy, - evidence of Mr. Prendergase in support of this argument u vs not establish the alleged 36. loss of morale. 'The evidence was liuniled to a group of employees which was too small to ensure that it represented the views of a majority of those employees whe are menrrrs of the union. Further, it must be considered in the Licht of the evidence that a meeting of A.W.U. members held almost immediately after the dismissa] on Ist April 1977 voted it: continued support for the informant and elected Mr. Knipht as a replacement for Mr. joaus om a temporary Dasis only. Even if it were relevant, it would, in my vicw, be of little weight relative to the other matters involved. The section does not Lay down any criteria by which the Court should be guided in exercising its discretion. On the one hand, the section does not in terns require the existence of special circumstances in order to warrant the exercise of the Court's discretion in favour of the dismissed employee. On the other hand, the section does not say that, upon conviction, the Court "shall, unless in all the circumstances (it) thinks it undesirable so to do", direct that the employee be reinstated in his old position or in a similar position (compare the wording of s. 142 of the Act - although in an entirely different context.) re) ~1 {In my opinion, in al] the circumstances of this case the Court should excrcise its discretion in favour of the informarit and order thal he be reinstated in his old position or in a similar position. In reaching that decision I have had regard to the fullowing matters:- (a) (b) (c) (d) The informant had been employed by the defendaak for three years, His work as an employee was satisfactory in the sense in which I have used that word in (2) abov and had not Jed to any reprimands or warnings as to likely dismissal. For some time prior to the dismissal, the defendent was looking for an opportunity to dismiss the informant because cf his atLitude to the company which showed a"lack of consideration of the sue 1 company's position. " The employer wrongly treated the resolution of 31st March 1977 and the attendant exemptions from the overtime ban as constituting a good reason for dismissal. 38. (e) The informant desiver reinstatancnt and has not obtained employment clsewhere. (£) The informant has not becn guilty of undve delay in bringing the procecdings. (g) It has not been established that, if rcinstated, either the informant'. work as en employee or his attitude to that work is likely to cause any hardship or injustice to the defendant. (h) It has not been established that any innocent third party is likely to suffer any hardship if the informant be 1einstated. Further, it has not been established that any other factors exist which are of such signiticance as to outweigh the factors in favour of reinstatement. My reference to the matters which T have taken into account in exercising my diserction is not intended to & exist in convey that I consider that all of those [actors mu before the Court should exercise ''s discretion in favour cF a dismissed employee. Nor do I] regard any une of those factors as being critical to the exercise of che discretion in the sense that I would have exercised my discretion against the informant and refused to order reinstutcmont bad ony onc vf items (a)-(c) not becn present or had auy one of items (£)-(h) been present, The Court directs the defendant that the informanc be reinstated in his old position or in a similer position. Mr. Lawrence on bchalf of the informant sought aa order for costs against the defendant. le put sm argument that, although no order for costs could be made under s. 197A of the Conciliation and Arbitration Act if the mattcr had been before the Commonwealth Industrial Court, s. 43 of the Federal Court Act 1976 allowed this Court to make an order as to costs. Mr. Brown, in contending that there was no power to grant the application for costs, relied upon s. JLSA (1)(b) of the Act (inserted by s. 3 of Act No. 160 of 1976) which provides that:- "a reference in thas Act to the Court" (other than in certain sections not including s. 197A) "shall, in relation to ... that jurisdiction ... be read as references to the Federal Court of Australia in its Industrial Division". In my opinion the Court has no powe. to ordcr the defendant to pay the costs incurred by the informant. Mr. Lawrence then applied for an order that the defendant pay the expenses of the informant as distinct frow his costs. He referred te the express ase of that word in s. 116 avd contrasted it with the absence of that word in s. 197A. Some discussion 4a, took place in which it appeared that the parties naught be able to reach agreement when the dcfendant is furrished with details of the amount claimed. In those circumsceonec. Mr. Lawrence's application for eapenses was adjourned without deciding the question of the Court's peser in ihe matter - as to which the Court has not yet beard argimnent on both sides. That application is adiourned with liberty to the partics to apply.