Colin Keith Wood (on behalf of the Industrial Relations Bureau) v Lord Mayor, Councillors and Citizens of the City of Melbourne [1979] FCA 42

Ut fr4

2179 pod. ')

CATCHWORDS

Industrial law - Statutory offence - Statutory presumpticn

of the intention of the defendant - Injury to employee by defendant - Whether by reason of the circumstance that the employee had failed to join in industrial action - Substantial and operative factor influencing the actus reus -— Corporate decision ~ Identification of the decision-maker,

Conciliation and Arbitration Act 1904 s.5(1)(aa),(4).

COLIN KEITH WOOD v. LORD MAYOR, COUNCILLORS AND CITIZENS OF

THE CITY OF MELBOURNE.

CORAM: Smithers J.

Melbourne

9 May 1979

e " IN THE FEDERAL COURT OF AUSTRALIA

' VICTORIA DISTRICT REGISTRY V. Nos. 1,2 and 3 of 1979

INDUSTRIAL DIVISION

JUDGE MAKING ORDER: DATE: WHERE i1ADE:

THE COURT ORDERS THAT:

IN THE MATTER OF THE CONCILIATION AND ARBITRATION ACT 1904

BETWEEN:

COLIN KEITH WOOD Informant

AND:

LORD MAYOR, COUNCILLORS AND CITIZENS OF TH® CITY OF MELBOURNE Defendant

ORD E R SMITHERS J. 9 May 1979 - MELBOURNE

The informations laid in matters V.Nos. 1,2 and 3

of 1979 be dismissed.

IN THE FEDERAL COURT OF AUSTRALIA) 3 V_Nos. 1,2 and 3 of 1979

VICTORIA DISTRICT REGISTRY

INDUSTRIAL DIVISION }

IN THE MATTER OF THE CONCILIATION AND ARBITRATION ACT 1904

BETWEEN:

COLIN KEITH WOOD

Informant

AND:

LORD MAYOR, COUNCILLORS and CITIZENS OF THE CiTY OF MELBOURNE

Defendant

CORAM: Smithers J. 9 May 1979

REASONS FOR JUDGMENT

SMITHERS J.

On 8 March 1978 one Frank Richard Kane,who was then an employee of the defendant in the capacity of a motor mechanic,was stood down by the defendant. On 30 March 1978 he was Gismissed by the defendant. By s.5(1)(aa) of the Concilia- tionand Arbitration Act 1904 (the Act) as amended by the Conciliz tion and Arbitration Amendment Act(No.3)1977 (No.108 of 1977) it is a crime for an employer to dismiss his employee or to injure him in his employment by reason of the circumstance that the employee has refused or failed to join in industrial action. There can be no doubt that to dismiss or stand down an employee is to injure him in his employment. Industrial action is defined in s.4(1) of the Act in terms which clearly include strike action. Thus s.5(1)(aa) makes it a crime for an employer to dismiss or stand an employee down by reason of the circumstance that he has refused ar failed to join in strike action. Relevant parts of s.5 are in the following terms:-