CATCHWORDS Industrial law - whether dismissal by reason of circumstance that delegate of organization - appeal from exercise of discretion - whether duty on Court to direct reinstatement or whether discretionary power - cross appeal against conviction ~- credibility of witnesses - onus of proof Conciliation and Arbitration Act, 1904, s.5(1)(4) and (5) ss.118A and 191 Acts Interpretation Act, 1901, ss.26, 41, 43 and 44 Federal Court of Australia Act, 1976, s.19 Crimes Act, 1914, ss.13, 21, 21B(a) and (da) BOWLING v. GENERAL MOTORS HOLDEN'S LIMITED S.A. 14 of 1980 Coram: J.B. SWEENEY, EVATT AND NORTHROP JJ. IN THE FEDERAL COURT OF AUSTRALIA ) ) SOUTH AUSTRALIA DISTRICT REGISTRY ) No. 14 of 1980 ) ) INDUSTRIAL DIVISION IN THE MATTER of the Conciliation and Arbitration Act, 1904 ON APPEAL from a single Judge of the Federal Court of Australia BETWEEN: LESLIE ROONES BOWLING Appellant AND: GENERAL MOTORS HOLDEN'S LIMITED Respondent ORDER JUDGES J.B. Sweeney, Evatt and Northrop JJ. DATE OF ORDER: 19 November 1980 WHERE MADE: Melbourne THE COURT ORDERS THAT: 1. The cross-appeal be dismissed. 2. The appeal be allowed. 3. That the order made in this matter be varied deleting paragraph 2 thereof and inserting: ")he appellant be re-instated in his old position or ina similar position within 7 days after publication of these reasons." 4. Liberty be reserved to either party to apply within seven days with respect to the period stated in paragraph 3 hereof. IN THE FEDERAL COURT OF AUSTRALIA~ SOUTH AUSTRALIA DISTRICT REGISTRY No. 14 of 1980 INDUSTRIAL DIVISION IN THE MATTER of the Conciliation and Arbitration Act, 1904 ON APPEAL from a single Judge of the Federal Court of Australia BETWEEN: LFSLIE ROONES BOWLING Appellant AND: GENERAL MOTORS HOLDEN'S LIMITED Respondent CORAM: J.B. Sweeney, Evatt, Northrop JJ. 19 November 1980 REASONS FOR JUDGMENT The Court has before it an appeal and cross appeal. They arise out of proceedings before the Federal Court constituted by a single Judge on the hearing of a summons issued on an information alleging breaches of s.5(1) of the Conciliation and Arbitration Act, 1904 ("the Act"). As amended the breaches 2. alleged were that Leslie Roones Bowling ("the appellant") had been dismissed by reason of the circumstance that he was a delegate of an organization, namely the Vehicle Builders Employees' Federation and further that being such a delegate, the appellant was dismissed by reason of the circumstance that he did an act or thing within the limits of authority conferred on him by the organization. His Honour found for General Motors Holden's Itd. ("G.M.H.") on the second circumstance. A third charge had been made but this was deleted by amendment during the hearing. G.M.H. had employed the appellant at its works at Elizabeth in the State of South Australia. The dismissal alleged took place on 10 August 1978. The hearing before His Honour commenced in October 1979 and continued into 1980. On 27 February 1980 His Honour informed the parties that he proposed to convict G.M.H. since it had failed to satisfy the Court that its action in dismissing the appellant was not actuated by reason of the circumstance that the appellant was a delegate of the organization. The appellant had made clear at the beginning of proceedings that 1f a conviction were made it was proposed to ask that orders be made for reimbursement of wages lost and for reinstatement in employment. By agreement of the parties these issues were left until the Court had decided whether it would convict. 3. After the conviction, His Honour heard submissions and any further evidence, which either party desired to call, on these two issues and the issue of the quantum of the penalty. On the conclusion of these hearings the proceedings were adjourned and judgment given and reasons published on 13 March 1980. The Order of the Court was: 1. In respect of the conviction of the defendant under s.5(1)(a) of the Conciliation and Arbitration Act 1904, announced on 27 February 1980, the defendant 1s ordered to pay a penalty of $300. 2. The application for an order directing that the informant be reinstated in his old position or 1n a similar position 1s dismissed. 3. The parties have liberty to apply as to the application for the reimbursement of any wages lost by the informant. 4. The time fixed for appeal against the conviction 1s extended to the date 21 days after delivery of these reasons for judgment. On 2 April 1980, the appellant appealed against the refusal to order reinstatement. This was within an extension of time given by the learned trial judge. On 23 April 1980 G.M.H. cross appealed against the order convicting it. On the hearing, at the request of counsel, the Court first heard the cross appeal against the conviction and then heard the appeal against the refusal to order reinstatement. There was no specific issue before the Court dealing with reimbursement of wages ordered. Its fate however Cepends on there being a conviction and if the conviction were set aside there would be no basis for the order. The issues between the parties arose directly out of events on 9 August 1978. On the evidence there were a number of shop stewards representing separate groups of employees at the Elizabeth works of G.M.H. 'The appellant was employed in a section of the works known as the vehicle assembly plant. There were several hundred employees in this plant in different divisions. There were some six shop stewards in this plant and the appellant, who was a shop steward represented approximately 100 employees, members of the Vehicle Builders Employees' Federation ("the Federation"). For some time prior to August 1978 industrial relations had been somewhat difficult. Negotiations had been taking place ever a new award and during the course of these some stoppages occurred including approximately six short ones in the division where the appellant was employed. Stand-downs, 1.e. temporary closures of certain sections of the work and suspension of employees for part of a day, were described as being a very emotional issue. On 4 August 1978, due to a breakdown of machinery a number of employees, including the appellant had been stood down towards the end of the shift and had each lost about one hour's pay. The award, which was in evidence, contains very elaborate ' ' 5. provisions in what 1s called a grievance procedure. In brief it provides for grievances to be taken up by an employee with a shop steward. A shop steward is to be allowed reasonable time during working hours to interview representatives Of G.M.H. Senior shop stewards are provided for and provision is made for the shop steward to refer matters he has not been able to adjust to the senior shop steward. The award provides that 1f an employee raises a matter with his shop steward and it is not satisfactorily settled, the shop steward may refer the matter to the senior shop steward. It then provides that the shop steward may seek and will be granted reasonable time from his supervisor to fully acquaint the senior shop steward with the details of the matter. It appears that the stand down on 4 August was resented by a number of employees. The appellant after being stood down, proceeded to move through the area where his members worked and make a list of jobs on which he claimed they could have been usefully employed. He then asked his supervisor if he could see a personnel officer to discuss the claim but he was advised that it was too late, it being then 4.10 p.m. On Monday 7 August, the next working day, he again attempted, without success, to see an aundustrial officer concerning the claim and on 8 August, he interviewed a Mr. Green, an industrial officer, and claimed one hour's pay in respect of stand-down for himself and others who had been stood down on 4 August. He was informed the Company would not even consider it. On 9 August 1978, which was a Wednesday, the appellant was in the position that he had endeavoured without avail to discuss his members grievances with G.M.H. representatives. On 9 August, the appellant commenced work and about 8.45 a.m. during a period of relief when he was not under obligation to perform any duties, he went to see the senior shop steward over the matter in dispute. After seeing him he returned to his work place and was later seen by Mr. Mansfield, the general foreman at G.M.H. Elizabeth. He asked the appellant why he had been away from duty, the appellant replied that he had gone to see the senior shop steward over the stand down on the 4th. Mansfield told him that what had occurred on the 4th did not constitute a grievance because he and others had been stood down "within the award". This was advice Mansfield had received from the industrial department of G.M.H. A meeting was then held of the 6 shop stewards in the vehicle assembly plant and they decided to hold ai stop-work meeting of the employees in the vehicle assembly plant during working hours commencing at 1.00 p.m. The appellant was present at the meeting with 5 other shop stewards but there was no evidence who proposed and who, if anyone, opposed the calling of the meeting. The evidence was that the question of going to the office block was not discussed. 7. The meeting was called and was held at about 1.00 p.m., during working hours. Some 350 persons were present. At the meeting a resolution was moved and seconded that those present should go to the industrial staff offices in the administration block and present their grievances to that staff. The grievances ancluded the two matters concerning the appellant and the members he represented, the stand-dowrl on 4 August 1978 and the refusal to regard the claim as a grievance and allow the appellant access to the senior shop steward and two other issues raised by another section of members and the question whether an overtime ban should be imposed until satisfaction had been reached. At the meeting the appellant spoke. His Honour found that the appellant did not move or second the motion that the employees should go to the administration block but that at the meeting he expressed the view that the proposal was a good idea but warned his fellow employees of the possible consequences of such a mass action and said he had no doubt G.M.H. would come down rather heavily on them. Some 350 odd members were present at the meeting and a number, most generally estimated at about 150, proceeded to the administration block. His Honour accepted the evidence that about a dozen or so employees entered the office block before the appellant and . 8. that he then waited for the 4 other shop stewards who arrived after he did. One shop steward did not go to the office block. His Honour's findings concerning the meeting accepted that there was no violence but that concern and anxiety were felt by the clerical staff. There were some 40 clerical staff who normally worked in the area which the employees entered and where they remained. Some continued working but the work generally was disturbed and in some cases unable to be performed. There were some conversations, apparently brief, between 3 officers of the industrial section and 3 shop stewards (the appellant, Mr. Sweeney and Mr. Noone). His Honour was unable to make a finding which, if any, of the 3 was the main spokesman. After these brief conversations the appellant moved to the centre of the room and asked the assembled employees to leave. He did this very briefly. There had been a number of requests from G.M.H. officers that this be done. At the conclusion of the appellant's speech there was some hooting and cheering but the production employees then proceeded to leave the area. There was of course more than the usual volume of noise. It was varyingly described by witnesses but seemed to consist in the main of the noise of talk among the 150 odd employees. Obviously it too was a disturbing factor. 9. The entry to the office block and the events therein formed the immediate reason for consideration being given to the action G.M.H. should take. Mr. Crisp, the plant manager, production, reached the decision to dismiss the appellant. He did so after discussions with a number of other employees in executive positions, some of whom were present at the office block and some of whom were not. He acted on the recommendation of Mr. Lea, personnel relations manager from G.M.H. at Elizabeth. His Honour accepted the view that the events of 9 August constituted substantial and operative factors which may have entitled the respondent to dismiss the informant. He then proceeded to deal with the evidence called by G.M.H. designed to show that the appellant's position as a shop delegate was not a reason which actuated it in the dismissal. The evidence was that the decision to dismiss' the informant was that of Mr. Crisp, the manager of the body and vehicle assembly plant, employed by G.M.H. Mr. Crisp was not present in the administration block when the entry took place. He came down later and was given accounts of what had happened by a number of officers of G.M.H. who were in attendance. He received a recommendation from Mr. Lea, that the appellant should be dismissed. He received information describing the events from a number of other officers as well as Mr. Tea. He @ecided that the appellant, Sweeney and Noone should be suspended on full pay for the balance of that working day and that subject to obtaining ' ' 10. legal advice the appellant and Sweeney should be dismissed on the next day. Legal advice was obtained and they were dismissed the following morning. - The grounds of appeal relied on in the cross appeal are as follows: l. The finding of the learned Trial Judge that the Respondent failed to satisfy him on the balance of probabilities that its action in dismissing the Appellant was not actuated by reason of the circumstance that the Appellant was a member of an organization as set out in paragraph 1 of the information was against the evidence and the weight of the evidence. 2. That in view of the learned Trial Judge's finding that the conduct of the Appellant in the administration offices on 9th August 1978 was a substantial reason for the decision to dismiss the Appellant the learned Trial Judge should have found on the balance of probabilities that the circumstance that the Apnellant was a delegate of the Federation was not a substantial and operative factor in the decision to dismiss the Appellant. 3. The learned Trial Judge should have accepted the evidence of the witnesses Crisp and Lea. 4. The learned Trial Judge erred in failing to take into account evidence other than the evidence of the witnesses Lea and Crisp on which he should have found that the dismissal of the Appellant was actuated by reasons other than the fact that the Appellant was a delegate of an organization. 5. The learned Trial Judge placed too hagh an onus of proof on the Respondent to prove that in dismissing the Appellant it was not actuated by reason of the ll. circumstance that the Appellant was a member of an organization. His Honour's judgment dealt in some detail with the dismissal, the subsequent stop-work meeting and the events after the employees entered the administration building. He also dealt with the case advanced by the defendant that the appellant was dismissed because he had played a leadership role in the actions inside the offices, which G.M.H. regarded as unlawful and a contravention of the award. The case was that those events were frightening and that G.M.H. had a duty to ensure the safety of its office employees and was obliged to demonstrate plainly that any repetition of such conduct in the future would not be tolerated. Keely J. then said: "In my opinion on the anformant's own evidence as to what he did in the administration offices on 9 August 1978, the defendant was entitled to dismiss the informant - irrespective of whether he was the main spokesman." He then turned his mind to the specific question in these proceedings and after referring to General Motors Holdens Limited v. Bowling, 12 A.L.R. 605, he made reference to the judgment of Mason J. at 619 and set out a passage from the judgment of Gibbs J. at 612. 12. He examined again the evidence concerning the dismissal and accepted that it was Mr. Crisp's decision and that before making it he obtained facts from a variety of persons including those officers of G.M.H. present at the meeting. There 1s then set out a question asked by His Honour of Mr. Crisp with his answer. The manner in which this question came to be asked jis that Mr. Crisp gave long evidence concerning the events on 9 August. On the information he obtained, it was his decision to dismiss and he gave his reasons for that decision. He was asked what his decision was and the reasons for 1t and then was asked somewhat leading questions whether the decision was by reason of a circumstance proscribed by s.5, he answered "no", to each question. No objection had been taken to these questions but 1t was obviously not a very satisfactory way to have the evidence given. There was a cross examination of Mr. Crisp in which an attack was made in respect of a number of matters. At the end of the cross examination His Honour asked Mr. Crisp "it might seem a strange question after all your evidence for nearly a day but 1f you were asked why you sacked Mr. Bowling how would you answer?". Mr. Crisp then gave a long answer as follows: "An act occurred in the office block that I personally found unacceptable, and still do, an act where 150 people chose to occupy an office area that they normally would not and perhaps by intimidation or other means achieve a certain end when I believe there is a perfectly acceptable and available procedure for doing that without going to those 13. extremes. That happened. I believed and agreed with Mr. Lea, Holland and Murray that as a management group we should not let that happen again. I still believe that. That we needed to identify the people that we believed to be the leaders of that occupation and discipline them. We analysed that, I analysed 1t with the information that was provided to me, and it was recommended to me that reprimand of Les Bowling and Mr. Sweeney would not be a suitable discipline because reprimands of these people in the past had been disregarded and of no avail and we needed to be absolutely crystal clear, everyone to be absolutely crystal clear that this was not accepted. The only alternative open, was I believe - it was recommended to me that the Suitable and only alternative open was the dismissal of Les Bowling and Colin Sweeney and the reprimand of Brian Noone. That 1s how it came about, that is why I dismissed Les Bowling." His Honour then said that he accepted the evidence that the conduct of the appellant in the administration offices was a substantial reason for Crisp's decision to dismiss the appellant. He then turned to the question of the credibility of Mr. Crisp and Mr. Lea as disclosed in examination in chief and in cross examination. His Honour sets out in his judgment a number of questions and answers and said of them that some of Crisp's answers were evasive, some were contradicted by Crisp''s own evidence and some of his answers were contradicted by evidence of other witnesses, officers of G.M.H. and some were highly improbable. He then said these matters were such that when coupled with Crisp's demeanour under cross examination he was unable to accept a number of his answers including one that his 14. decision to dismiss the appellant was not by reason of the circumstance that the appellant was a delegate of the Federation. Looking at the examples given in the judgment of unsatisfactory answers, an important consideration 1s that very many of them related to matters where it would be likely that Mr. Crisp felt that an answer different to that which he gave would not assist the claim by G.M.H. His Honour dealt with the evidence of Mr. Lea and again having regard to his demeanour and certain answers he rejected certain evidence. It must be remembered that at the time this evidence was given there were two alleged breaches being dealt with by the Court. The first alleged dismissal because the appellant was a delegate of an organization. The second alleged dismissal because, being a delegate, he did an act or thing for the purpose of protecting the industrial interests of the organization or its members. In each of these allegations the case being made was that G.M.H. had resented the attitude of the appellant which was said at times to be "aggressive or militant", and to have been resented by officers of the respondent and Mr. Crisp. The matters outlined by His Honour were not peripheral matters but were directly related to these issues. Matters such as demeanour, evasiveness, frankness in answering questions, or the lack of it, are peculiarly matters for the judge at the primary hearing and it is clearly impossible 15. for a court on appeal to substitute its finding on these matters or to disregard those made by the trial judge. With those considerations in mind we turn to the grounds argued on the cross appeal. In the circumstances we regard grounds 1 and 3 as quite untenable. Part of the relevant material before His Honour was of course the demeanour and frankness or evasion of the witnesses and findings based on these factors cannot be said to be against the evidence and the weight of the evidence, nor can we find that the evidence of Mr. Crisp and Mr. Lea should have been accepted. Nor in our view 1s ground 2 tenable. The circumstance that the employee was a delegate does not have to be the sole factor leading to the dismissal of the informant. Nor does the fact that there was one other substantial factor, namely the conduct of the appellant in the administration office, show that the circumstance that the fact that the appellant was a delegate was not a substantial and Operative factor. That 1S a complete nonsequitur. So far as ground 4 is concerned, the judgment shows that His Honour did take into account all the evidence inciuding the witnesses other than Lea and Crisp even though those witnesses did not dismiss or even recommend dismissal, we are unable to see any error shown by this ground. Ground 5 is that too high an onus of proof was placed on G.M.H. but the judgment shows clearly that proof was looked for 16. to satisfy the civil onus and this in our view is clearly the requirement of the section and was so held in Bowling v. G.M.H., 12 A.L.R. 605. In our view the learned trial Judge, in dealing with these issues, did not make any significant mistake or misapprehension as to any fact or facts, nor did he make any error of principle or misdirect himself in any way as to the law. He found proof of all the facts and circumstances constituting the offence other than the reason for G.M.H.'s action and his finding in this aspect was not attacked. Section 5(4) then cast upon G.M.H. the task of proving that it was not actuated by the reason alleged in the charge. The respondent acted by Mr. Crisp and 1t was indeed G.M.H.'s case that Mr. Crisp decided on and made the decision to dismiss. I f his evidence that this was so had been accepted, the respondent was entitled to a dismissal of the summons, His Honour referred to the decision of the High Court in Bowling v. General Motors Holdens Limited, 12 A.L.R. 605 and particularly the judgments of Gibbs J. and Mason Jd. Mr. Crisp had been attacked under cross examination, both in detail and in allegations that he was biased against the appellant. There was of course no presumption that because the appellant was a shop steward his dismissal was actuated by that circumstance. This was nonetheless a matter for His Honour to consider in the light 17. of the evidence and a prime question was whether he accepted Mr. Crisp's evidence. In determining such a question, the credibility of a witness, particularly perhaps when dealing with circumstances which actuated him in a decision, 1s of prime importance. His Honour based his view that he should not accept the evidence of Mr. Crisp on his demeanour and his answers both in cross examination and in chief. The matters to which he makes reference in his judgment are clearly relevant on the question of credibility and clearly formed the basis on which His Honour refused to accept the evidence. The pranciples enunciated in Warren v. Coombs (23 A.L.R. 405), do not assist G.M.H. in the facts of this case. We are quite satisfied that this Court not having even seen Mr. Crisp cannot substitute its finding for that made by the trial Judge. In our view the cross appeal must be dismissed. The cross appeal having been dismissed, it becomes necessary to consider the appeal against the order: "The application for an order directing that the informant be reinstated in his old position or in a similar position is dismissed." - Section 5(5) of the Act provides: "5(5) Where an employer has been convicted of an offence against this section the court by which the employer 1s convicted may order that the employee be reimbursed any wages lost by him and may also direct that the employee be reinstated in his old position or ina similar position." The appeal 1S against the exercise of a discretion by the trial judge. The principles to be applied on an appeal from the exercise of a discretion are clear, Brambles Holdings Ltd. v. Trade Practices Commission (1980) 28 A.L.R. 191, Gronow v. Gronow (1980) 29 A.L.R. 129. We shall return to this aspect of the appeal later. The primary contention by counsel for the appellant was that the word "may" 1n sub-section (5) should be read as "shall" and accordingly where an employer had been convicted of an offence against s.5 and the employee so desired, the court had no discretion but was under a duty to direct that the employee be reinstated in his old position or in a Similar position. Alternatively, counsel contended that upon an employer being so convicted, the court should give such direction unless the employer satisfied the court that there was good reason why that direction should not be given. These contentions raised for consideration the correct construction of sub-section (5). In considering the sub-section the learned trial judge held that the discretion was unfettered and 1t was necessary for the court to balance the matters in favour of and against the giving of the direction. He treated the matter as an application made by the employee and was to be treated in the same way as any other application to the court. Although it was not stated in the reasons for judgment, the form of the order made suggests that he treated the appellant as carrying the onus of proof. He applied the principles he had stated in Jones v. Thiess Bros. Pty. Ltd. (1977) 30 F.L.R. 422 at p.442, namely: "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 terms 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 (1t) thinks it undesirable so to do', direct that the employee be reinstated in his old position or in a similar position ' 20. (compare the wording of s.142 of the Act - although in an entirely different context) ." Some general comments are made. Section 5(1) creates a criminal offence punishable upon conviction by a penalty not exceeding $400, s.41 Acts Interpretation Act 1901 as amended. 'The offence 15 punishable on summary conviction, s.43, and the penalty may be recovered in any court of summary jurisdiction, s.44. The phrase "court of summary jurisdiction" is defined in s.26. The Federal Court of Australia 18 not a court of summary Jurisdiction within the defined meaning of that phrase. Section 191 Conciliation and Arbitration Act provides: "191(1) A person who has committed an offence against this Act or _ the regulations may be charged accordingly before the Court and the Court may impose the penalty provided by this Act or the regulations in respect of that offence. (2) Proceedings before the Court under this section may be instituted by summons issued upon information, without indictment." Section 191(1) is to be read as meaning that: ++. a charge preferred against a person for an offence against the Act may be heard by the Court of Conciliation and Arbitration which upon being satisfied of the charge may impose the penalty provided for the offence. It does not mean tO make the actual guilt of the defendant a condition of the court's power to hear the charge as might be the ' 21. result of a literal adherence to its actual language." R. v. Kelly: Ex parte Berman (1953) 89 C.L.R. 698 per Dixon C.J. at p.620. The court referred to in s.191(1) 1s the Australian Industrial Court constituted under the Conciliation and Arbitration Act, see s.4 of the Act. Section 118A of the Act provides that on and after 1 February 1977 the jurisdiction and powers expressed by that Act to be vested in or exercisable by the Australian Industrial Court are vested in and exercisable by the Federal Court and are exercisable in accordance with the Federal Court of Australia Act 1976 as amended, and that a reference in the Conciliation and Arbitration Act to "the Court" other than in certain specified sections not relevant for present purposes, shall: ~.- in relation to, and to matters arising out of, that jurisdiction or those powers as so vested or exercisable, be read as references to the Federal Court of Australia in its Industrial Division." Applying those provisions, the jurisdiction and powers and matters arising thereout conferred by s.191 Conciliation and Arbitration Act are vested in and are exercisable by the Federal Court and come within the original jurisdiction of the Federal Court, s.19 Federal Court of Australia Act. 22. Under s.13 Crimes Act 1914 as amended, unless a contrary intention appears in the Act creating the offence, any person may institute proceedings for the summary conviction of a person in respect of any offence against the law of the Commonwealth punishable upon a summary conviction. There 18 no contrary intention appearing in the Conciliation and Arbitration Act with' respect to s.5 and it follows therefore that any person may institute proceedings for the summary conviction of a person in respect of an offence under s.5 of that Act. The proceedings can be instituted in either the Federal Court or in a court of summary Jurisdiction, but must be commenced within one year after the commission of the offence, s.21 Crimes Act. It 1S anteresting to compare s.21B(a) and (da) Crimes Act with those parts of s.5(5) Conciliation and Arbitration Act empowering the court to order that the employee be reimbursed any wages lost by him. There 1s no cross appeal against the order made by the trial judge directing partial reimbursement of wages lost by the appellant and so the appeal does not raise directly the meaning of the word "may" when used in relation to an order that an employee be reimbursed wages lost by him, but in all probability the word "may" in that context should be construed as having the same meaning as the word "may" when used later in the same sub-section in the phrase "may also direct". The powers conferred by s.5(5) do not arise until an employer has been convicted of an offence against the section. Once that condition has been fulfilled, the court, whether a court of summary jurisdiction or the Federal Court, 1s empowered to make the further order for reimbursement of wages lost and also give a direction that the employee be reinstated. A direction that the employee be reinstated does not depend upon any specific cause of action. The power to give the direction does not depend upon ae separate application made by or on behalf of the employee ain accordance with the normal practice and procedure of the Federal Court or a court of summary jurisdiction. The jurisdiction and power of the Federal Court to give such a direction depends upon proceedings having been instituted by summons upon information in the Federal Court and a conviction being recorded. As the amount of the penalty to be recovered upon conviction 1s in the discretion of the court recording the conviction, likewise the power to direct that the employee be reinstated is in the discretion of the court recording the conviction, but 1t 1S a power with peculiar attributes. We reject the contention that ain s.5(5) Conciliation and Arbitration Act the word "ray" should be construed as meaning "shall", so that the sub-section imposes a duty upon the court to give a direction to reinstate the employee whenever a conviction 1s recorded. The principles ' 24. to be applied in determining an issue of this kind are stated in Finance Facilities Pty. Ltd. v. Commissioner of Taxation (1971-72) 127 C.L.R. 106. That case involved a consideration of a section of the Income Tax Assessment Act 1936 as amended, conferring a power upon the Commissioner of Taxation to allow a shareholder certain rebates. The power was stated in the form "may allow" and was dependent upon the existence of one or more specified conditions being established. The Commissioner's contention was that the word "may" should read as "shall". Windeyer J. at pp.134-5 said: "The question, which comes back to the words 'may allow', is not to be solved by concentrating on the word 'may' apart from ats context. Still less is the question answered by saying that 'may' here means ''shall'. While Parliament uses the English language the word '''may' in a statute means may. Used of a person having an official position, it 1S a word of permission, an authority to do something which otherwise he could not lawfully do. If the scope of the permission be not circumscribed by context or circumstances i1t enables the doing, or abstaining from doing, at discretion, of the thing so authorized. But the discretion must be exercised bona fide, having regard to the policy and purpose of the statute conferring the authority and the duties of the officer to whom 1t was given : 1t may not be exercised for the promotion of some end foreign to that policy and purpose or those duties. However, that general proposition 1s irrelevant in this case. Mere the scope of the permission or power given is circumscribed. Conditions precedent for its exercise are specified as alternatives. The question then 15s, must the permitted power be exercised 1f one of those conditions be fulfilled? ' 25. This does not depend on the abstract meaning of the word 'may' but on whether the particular context of words and clreumstances make it not only an empowering word but indicate circumstances in which the power 1s to be exercised - so that in those events the 'may' becomes a 'must'. Illustrative cases go back to 1663 : R. v. Barlow ((1663) 90 E.R. 773, 91 E.R. 516). Today it 1s enough to cite Julius v. Bishop of Oxford (1880) 5 App. Cas. 214); and add an this Court Ward v. Walliams ((1955) 92 C.L.R. 496, at pp-505-6). But I select one other reference out of a multitude : Macdougall v. Paterson (1851) 11 C.B. 755 [138 E.R. 672]). There Jervis C.J. said 4un the course of the argument (at p.766 (at p.677)) "The word 'may' is merely used to confer the authority : and the authority must be exercised, if the circumstances are such as to call for its exercise'. And, giving judgment, he said (at p.773 (at p.679)): 'We are of opinion that the word 'may' 1s not used to give a discretion, but to confer a power upon the court and judges; and that the exercise of such power depends, not upon the discretion of the court or judge, but upon the proof of the particular case out of which such power arises.' I consider that to be directly applicable to the present case. If the Commissioner, having considered the matter, 1s satisfied of facts out of which the power to allow a rebate arises, he cannot nevertheless refuse to allow it. That 1s obvious in the case of condition (c) : and it seems to me to be so also in the case of the alternatives (a) and (b)." Reference 1s made also to Ward v. Walliams cited in the quotation just given. In that case the High Court had to consider the nature of the power conferred by s.66 Public 26. Health Act 1902-12 (N.S.W.) which provided that where a person on whom a notice to abate a nuisance had been served by a local authority, makes default in complying with any of the requisitions thereof, the local authority shall make complaint to a justice, who shall issue a summons requiring the person to appear before a magistrate or Justices. The sald magistrate or justices may, 1£ satisfied that the alleged nuisance exists, by order require the said person to comply with ail or any of the requisitions of the notice, or otherwise to abate the nuisance. The relevant words of the section were that the magistrate: "may, 1£ satisfred etc., by order require the said person to comply with all or any of the requisitions of the notice or otherwise to abate the nuisance." The Pull Court of the Supreme Court of New South Wales had held that those words were to be interpreted as imposing upon the magistrate a duty, when satisfied of the occurrence of a statutory nuisance, to exercise his authority by making an order of one or other of the kinds described, and as arming him with a discretion only to select the kind of order appropriate to the case. The High Court allowed an appeal from the Supreme Court. In a jount judgment Dixon C.J., Webb, Fullagar, Kitto and Taylor JJ. considered the nature of the power conferred by the section and discussed the principles to be applied in determining whether that power was mandatory or not. At pp.506-7 they sald: 27. "In construing a statute conferring a power by permissive or facultative expressions, i1t 1S important not to mistake indications or evidences, found an the context or subject matter, of an antention that a right to call for the exercise of the discretion should exist, for aindications or evidences of an antention that the officer in whom the power 1s reposed- should be under a duty, upon request and upon fulfilment of the necessary conditions, to do the thing authorized." The court then considered a number of matters which were relevant to determine the question. It 1s helpful to read the whole of the passage at pp.506-9 but extracts only will be set out. At p.508 the court said: "When the foregoing considerations have been weighed together and balanced one with another there does not seem to remain any sufficient ground for an affirmative conclusion that the permissive words of s.66(2) do not bear the meaning which the rule of construction demands in the absence of satisfactory evidence of a contrary intention." Later at pp.508-9 the court said: "It follows from what has been said that under s.66(2) the magistrate possesses a discretion. It is, however, a discretion which must be exercised judically and upon grounds which do not go beyond the scope and object of Pt. Vll of the Public Health Act 1902-1952. Plainly the purpose of the provisions contained in Pt. Vll ais, by a summary remedy, to secure the abatement or removal of the various causes Of public inconvenience or offence which $s .64 enumerates as 28. nuisances, and the prevention of the recurrence of those likely to arise again. Prima facie, therefore, proof of the existence of such a nuisance should lead a magistrate to make an order-when a complaint comes before him. But he may consider that to make an order of a kind which lies within his power would be unreasonable because, for example, the so-called nuisance 1s unsubstantial, though technically within one of the paragraphs of s.64, or the operation of the order would-be harsh and oppressive or otherwise unjust or unreasonable, having regard to its effect upon the owner or occupier or other defendant and comparing that with the end to be attained, or that the removal of the cause of inconvenience or offence by other and more suitable means could be ensured or relied upon and that it is the course justice or fairness demands. Any of these considerations (and doubtless the numeration is not exhaustive) would afford the magistrate sufficient ground for an exercise of his discretion to refuse or defer the making of an order under s.66(2)." We apply the principles stated by the High Court. The power conferred by s.5(5) Conciliation and Arbitration Act 1s conferred upon a court. In some respects it 1s similar to the power conferred on the Yederal Court by s.191(1) of the Act under which the court "may impose the penalty". Under this power the court, upon conviction of a person, has a discretion as to the amount of the penalty to be imposed. The existence of the discretion 1s supported by s-4l1 Acts Interpretation Act. Other circumstances which support the discretionary power as opposed to a duty are allustrated by a reference to the practical results flowing from a direction to reinstate an employee. It 1s simple to 29. 1llustrate circumstances where such a direction would be rendered futile, such as where the employee had died prior to the conviction, or the employee did not- desire to be reinstated, or where the employer had ceased to conduct the business prior to conviction (and doubtless this enumeration 1S not exhaustive). All these circumstances support the conclusion that the sub-se¢tion confers a discretion and does not impose a duty to give a direction for the reinstatement of an employee upon the conviction of an employer of an offence against s.5 of the Act. We are of the opinion that the sub-section confers a power in the nature of a discretion upon the court which has convicted the employer of an offence against s.5 of the Conciliation and Arbitration Act, but as we said earlier, it 1s a power with peculiar attributes. As in all cases, the discretion must be exercised bona fide having regard to the policy and purpose of the Act conferring the power, in this case s.5 Conciliation and Arbitration Act. That policy and purpose 1s clear, see Heidt v. Chrysler Australia Ltd. (1976) 26 F.L.R. 257 per Northrop J. at pp.266-269 especially at p.266, Hyde v. Chrysler (Australia) Ltd. (1977) 30 F.L.R. 300 per Northrop J. at pp.328-330, and General Motars-Holden's Pty. Ltd. v. Bowling (1976) 51 A.L.J.R. 235 per Barwick C.J. at p.237, and Mason J. at pp.240-1. As Mason J. said at p.240: 30. "The two sub-sections (s.5(1) and s.5(4)) are, broadly speaking, designed to protect an officer, delegate or member of an organization against discrimination by his employer." The policy and purpose of sub-sections 5(1) and 5(4) as to protect organizations of employees and their representatives from discrimination and victimization by employers. Sub-section 5(5) gives effect to an essential feature of that policy and purpose of s.5. It is essential that an employer convicted of an offence against the section should not benefit from that offence by ridding itself of an employee by reason of any one or more of the circumstances specified. Accordingly, once the condition precedent has occurred, the court should give a direction to reinstate the employee unless there are good reasons why the employee should not be reinstated, for example if the employee does not desire to be reinstated. In most cases reasons which were relied upon to justify the dismissal of the employce are not really relevant to the exercise of the discretion conferred by s.5(5), since the conviction of the employer overrides those reasons. What are good reasons will vary from case to case. We have already indicated some but it is impossible to give any exhaustive list. In our Opinion the learned trial judge failed to apply the correct legal principles. True it is that the section does not lay down specifically any criteria by which . 31. the court should be guided in exercising its discretion, but the policy and purpose of s.5 are clear and indicate clearly the method by which the court should exercise that discretion. Accordingly, it 1S appropriate that the Full Court should exercise its discretion and apply the facts of this case 1n accordance with the appropriate principles. We accept the findings of fact made by the learned trial judge. In giving his reasons for refusing to give a direction to reinstate, His Honour listed the matters each party submitted should be taken into account by the court in exercising the discretion conferred by the sub-section. The submissions were made at a time after the court had announced that G.M.H. would be convicted, but before the court had published its findings of fact and reasons for conviction. G.M.H. did not call further evidence after the announcement that 1t would be convicted. At the time submissions were made the parties did not know what facts had been found by the Court. Apart from two matters, His Honour did not state what weight he gave to the matters relied upon by the parties, but stated that he had given consideration to all those matters, except the two specified. In addition he said that he had considered the application for reinstatement and in so doing had given great weight to one aspect which had not been expressly relied upon by G.M.H. . 32. We adopt a different method in exercising the discretion. G.M.H. has been convicted of an offence against s.5 of the Act. The appellant desires to be reinstated in his old position or in a similar position. Prima facie, therefore, the direction should be given. G.M.H. has relied upon a number of reasons why the direction should not be given. The major reason was one arising from the reasons for judgment published by His Honour but was not one of the matters earlier relied upon by G.M.H. His Honour said: "In my opinion on the anformant's own evidence as to what he did in the administration offices on 9 August 1978, the defendant was entitled to dismiss the informant irrespective of whether he was the main spokesman." This finding, either by itself or in combination with the other matters rel1red upon by G.M.H., does not constitute sufficient reason to justify a refusal to give the direction. Notwithstanding that finding the court convicted G.M.H. of an offence against s.5. We reject the contention made on behalf of G.M.H. that less weight should be given to a conviction where the employer failed to discharge the onus imposed by s.5(4). The fact of conviction not the method by which the conviction was proved 1s the condition precedent. In the present case, for the purposes of reinstatement, the conviction must be taken as a finding that G.M.II. @ismissed the appellant by reason of the circumstance that the appellant was a delegate of an organization. G.M.H. ius a 33. large corporation employing a large number of employees. There was no submission made that the appellant could not in fact be reinstated. The reasons relied upon by G.M.H. were that the actions of the appellant had been unlawful, were in breach of the award, and that he had played a part in planning and co-ordinating guerilla activities designed to disrupt production. All those reasons in reality go to the question of whether G.M.H. had committed an offence against s.5. They were not sufficient to avoid a conviction being recorded and upon conviction they do not constitute good reason why reinstatement should not be directed. Otherwise, G.M.H. would gain from its actions and the delegate would suffer from the result of discrimination and victimisation. So far as the reliance upon the time which had elapsed as a ground for the refusal of an order for reinstatement, 1t was argued for G.M.H. that an order should not be made for reimbursement of wages and for reinstatement because delay had occurred between the dismissal on 10 August 1978 and the laying of the information on 9 August 1979. His Honour examined this and found that on 1 September 1978 the appellant and a number of other employees had caused to be issued, in the Industrial Court of South Australia, an application for an order for reinstatement under the Industrial Conciliation and Arbitration Act of that State. The applications were one day cut of time. Applications were made for an extension of time which were successful but were challenged unsuccessfully in the Supreme Court of South Australia by G.M.H. and this in turn was followed by an unsuccessful appeal to the Haigh Court of Australia. Judgment was delivered by the High Court of Australia on 28 September 1979, when the appeal was dismissed. It appeared that the application to the Industrial Court of South Australla was not proceeded with, while the other proceedings were pending. Finally on 9? August 1979, the last day for initiating proceedings in the Federal Court of Australia these proceedings were instituted. A matter to which His Honour said he had given great weight was drawn from three facts which he found. These were: "(1) The informant was in the front row of a large group of employees who in 1976 'invaded Mr. Rosenboom's office' - to adopt the words used by the ainformant as given in Mr. Mansfield's evidence. (2) On 19 July 1978 the informant threatened similar action in respect of the offices of the personnel officers if they did not change their attitude. (3) On 9 August 1978 the anformant told the stop work meeting that the proposal that the V.A.P. employees at the meeting should go to the administration block was a 'good idea'. It as true that he warned his fellow employees of the 'possible conseauences of such a mass action' and said that 'he had no doubt the , 35. company would come down rather heavily on us'. However, I do not regard those statements by the informant as being in any way designed to dissuade the employees from going to the administration block. On the contrary, his support of it as a 'good idea' is consistent with the threat made on 19 July 1978. Also, the informant was on his own evidence one of the spokesmen for the V.A.P. employees in the administration although I have not been persuaded that the informant was the main spokesman." The placing of these three facts in this form makes it appear that His Honour was viewing the appellant as the one who led other employees into the offices of Mr. Rosenboom, a foreman in 1976, and that he also regarded the appellant as continuing that type of action on 9 August 1978 in pursuance of a threat made on 19 July 1978. However, there seem to us other relevant matters disclosed ain the evidence which must be considered. Mr. Mansfield's evidence was that he did not sce any of the events at Mr. Rosenboom's office. The evidence concerning this aspect was given by Mr. Klaffer and Mr. Noone. Mr. Klaffer's evidence was that on the night shift on 11 August 1976 a stand-down had occurred due to a bank up of cars at what was described as the end of the line. Mr. Rosenboom was the shift assembly foreman in the Vehicle Assembly Plant. Mr. Klaffer said that he was tal*ing to some supervisors in Mr. Rosenboom's office when a group came in. 36. He guessed it was about 40 persons. He said at the head was the appellant. Mr. Rosenboom asked them if they had any complaints or quer1res to raise on the issue to see their representative shop stewards whom he was prepared to meet. He said they would not accept that. Ultimately the appellant stepped forward and said that 1f we were not prepared to meet them he would have to make his own assessment of the issues. The men were asked to leave and did so. Mr. WNoone's evidence was that at the time in question there had been stand-downs once or twice a night for a whole week. A meeting was held in the car park of those stood down and the meeting resolved to go in and sit in Mr. Rosenboom's office until the line was started again. Mr. Noone was at the time a shop steward and there were a number of other shop stewards present. His evidence was that during the course of the meeting the appellant did not appear to take over the leadership of the group. He also said that he remembered the appellant coming in after the others were already there because he had trouble getting through the people. During the judgment when His Honour rejected evidence of a particular witness on a point, he said so, but he made no reference to Noone's evidence in this connection. We should add that the appellant said he had no recollection of the incident. It was not the subject of any reprimand or a 37. disciplinary action affecting the appellant or any other person who had been present. The incident of 19 July 1978 seen in context took place at a time when relations were strained and the appellant was complaining of the treatment being received by shop stewards, particularly their inability to have discussions concerning grievances. The appellant was not reprimanded nor was other disciplinary action taken. Taking those two instances and the happenings on 9 August, we do not think it possible to observe a pattern in them. The first was a trooping into the office of the foreman at the work place and looking at the evidence of Klaffer and Noone, the appellant cannot be said to have shown himself to be a leader. The incident of 9 August was markedly different from the previous incident at Rosenboom's office, and in any event 1t 1s necessary to look at ait in the laght of the circumstances then existing. The appellant had been endeavouring since the Friday before to discuss what he regarded as a grievance, namely the stand-down of employees when they could have been usefully employed, but he was frustrated in this by the insistence by G.M.H. that since the industrial department believed G.M.N. had acted in accordance with the award there was no grievance. - 38. It comes then as some surprise to find that G.M.H., while not critical in any way of these actions or beliefs of its andustrial officers, claims that the appellant's action was a breach of the grievance procedure clause. When the whole of the evidence is looked at and one adds to it the fact that no action at all was taken in respect of the 1976 incident and none at all in respect of the 9 August 1978 incident, except against three shop stewards, we find it not possible to regard these actions as justifying a refusal of reinstatement. An order for reinstatement 1s intended as protection for an organization, its members, officers and delegates. A further purpose 1s to ensure that members are not deterred from accepting a position as a delegate or an office by the fear of dismissal. We would allow the appeal and direct that the appellant be reinstated in his old position or in a similar position within seven days after the publication of these reasons. 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