'~w i 100, AGE ia , IN THE FEDERAL COURT OF AUSTRALIA ) ) WESTERN AUSTRALIA DISTRICT REGISTRY ) W.A. No. 6 of 1984 ) INDUSTRIAL DIVISION ) «BETWEEN: ~ ; TIMOTHY JAMES McMANUS Applicant and A. RAVI (BUILDER) PTY. LTD. Respondent CORAM: Northrop J. PLACE: Perth DATE: 4 April 1984 EX TEMPORE REASONS FOR JUDGMENT This application has as its genesis what is described by Toohey J. as the "saga of the Building Workers Industrial Union of Australia ('the B.W.I.U.') an organization under the Conciliation and Arbitration Act 1904"; see reasons for judgment in Leslie v. B.W.I.U., Matter W.A. No. 3 of 1984, 12 March 1984, unreported. The background facts to the present application are set out in -2- those reasons for judgment and need nat be repeated, but they must be remembered for the purposes of the reasons about ta be given. The applicant is a member of the B.W.I.U. He recognizes and adheres to the Western Australian Carpenters and Joiners, Bricklayers and Stoneworkers Industrial Union of Workers, State Branch of the Building Workers Industrial Union of Australia ("the Branch"). He does not recognize and does not adhere to the Western Australian Carpenters and Joiners, Bricklayers and Stoneworkers Industrial Union of Workers, a union registered under the Industrial Arbitration Acts. of the State of Western Australia ("the State Union"). The dispute between the Branch and the State Union constitutes the matter in litigation before Toohey J. That matter is due to come on for hearing in May 1984. In the meantime, disputation between members of the B.W.I-U. as to which is the lawful branch of the B.W.I.U. in Western Australia continues resulting in industrial difficulties arising on construction sites. This application arises from one of those industrial difficulties arising on the construction site, the St. James Library site, where the respondent employs a number of members of the B.W.I.U., including the applicant. The conditions of employment of those persons is regulated by the National Building Trades Construction Award 1975, an award of the Conciliation and Arbitration Commission under the Conciliation and Arbitration -3- Act 1904. The B.W.I.U. and the respondent are each parties to that award and thus they are bound by its terms. All the relevant employees employed by the respondent at the St. James Library site are members of the B.W.I.U., but a majority of them recognize and adhere to the State Branch, while the applicant recognizes and adheres to the Branch. On Thursday, 29 March 1984, the building superviser employed by the respondent at the site told the applicant that on Monday, 2 April there would be a show of cards and that anyone who did not have a union ticket that belonged to the: 108 Beaufort Street union would not be allowed to work on the site. The reference to the Beaufort Street union is a reference to the State Union. The purpose of the show of cards was to prove that each employee was a financial member of the B.W.I.U. Those members who had paid their dues to the State Union were able to prove their membership of the B.W.I.U. by production of the appropriate card issued by the State Union. Those members who had paid their dues to the Branch could produce a card issued by the Branch but not one that was issued by the State Union. On Monday, 2 April 1984, the applicant produced a card issued by the Branch but since he did not recognize or adhere to the State Union and had not paid his dues to the State Union he was unable to produce a card issued by the State Union. As a result, the applicant was told by the -4- representative of the respondent that he would not be employed. Thereafter he has not been employed by the respondent. He has not received any wages. On 3 April 1984, the application was issued out of the Federal Court and pursuant to an order of the Court the directions hearing was fixed for 10.15 a.m. this morning, 4 April 1984. By the application, and I should indicate that leave is given to amend the application to the form contained in a minute of proposed amendment handed to the Court this morning, the applicant is seeking the following orders: "lL. That the abovenamed Respondent has endeavoured to dismiss the abovenamed Applicant from his employment and 2. Has otherwise injured him in his ' employment or altered his position to his prejudice in contravention of Section 5(1) of the Conciliation and Arbitration Act 1904. ~~ 3. That the abovenamed Respondent intends to continue to injure the Applicant in his employment or to alter his position to his prejudice in contravention of Section 5(1) of the Conciliation and Arbitration Act 1904. AND THE APPLICANT CLAIMS by way of interlocutory and final relief:- Ll. An order that the Respondent be restrained from dismissing the abovenamed Applicant from his employment or otherwise injuring ham in his employnent or altering his position to his prejudice in contravention of Section 5(1) of the Conciliation and Arbitration Act 1904. . The claim for interlocutory relief was heard this morning and further submissions were made on behalf of the applicant this w afternoon. > . 7 a and yeh "Le ">-Under the provisions of sections 109 and 118A of the Conciliation and Arbitration Act and s.19 of the Federal Court of Australia Act 1976, the Federal Court is empowered t re, - to enjoin an organization or person from committing or continuing _a contravention of the Conciliation and . Arbitration Act. "3 /-On- the facts set out above, the applicant contends one é . ' that - 'the.' 'Respondent has committed and is continuing a re TI os '. a - : contravention' of the Act, namely the provisions of s.5. That fade hy oo ote ft we amar wy a vege - ols? section is -long, "ang for present purposes paragraph 5(1A) -- Rote stwe ss _only needs: be referred tom That paragraph is as follows: J°"5.(1A) An employer shall not threaten to 'dismiss an employee, or to injure him in his 'employment, or to alter his position to his nis + prejudice. — (a) by reasom of the circumstance that the employee is, -or proposes to become, an ; " officer, delegate or member of an organization, or cf an association that ~~—_has applied to be registered as an "organization, or that the employee proposes to appear as a witness or to give evidence in a proceeding under this Act; OY «+. Penalty: $400." Since the present proceedings are not for an offence against s.5, sub-section (4) of that section has no application. The applicant contends, quite correctly, that the civil onus' of proof applies and expresses his claim in either one of two ways: first, that the respondent, as employer, has injured him, as employee, in his employment by reason of the circumstance that he is a member of an organization, namely the B.W.I.U.; secondly, that the respondent, as employer, has altered his, as employee, position to his prejudice by reason of the circumstance that he is a member of an organization, namely the B.W.I.U. In order to determine the application it is necessary to determine, as a first step, whether there is a serious: question to be tried; see Mr. Justice Gibbs, the Chief Justice of the High Court of Australia, in Australian Coarse Grain Pool Proprietary Limited ve Barley Marketing Board of Queensland (1982) 46 A.L.R. 398. Section 5, Conciliation and Aribtration Act, has been considered in a number of authorities, but for present purposes reference is made to one of those authorities only, namely Heidt v. Chrysler Australia Limited (1976) 26 F.L.R. 257. In that "ease, Chrysler Australia Limited had dismissed Heidt, one of its employees, and Heidt claimed that Chrysler Australia Limited had dismissed him by reason of the circumstances that he was, (a) a member of an organization as defined in the -7- Conciliation and Arbitration Act 1904; or (b) entitled to the benefit of an industrial award as defined in the Conciliation and Arbitration Act; or (c) a member of an organization as defined im the Conciliation and Arbitration Act. which was then seeking better industrial conditions and that he, Heidt, was dissatisfied with his condition, all contrary to s-5 Conciliation and Arbitration Act. In giving reasons for judgment I said at pp.266-7: "The principles of law to be applied to the facts of this case are clear. Section 5 is designed to protect organizations, in this case an organization of employees, and to ensure that they are able effectively to carry out their functions within the scope of the provisions of the Act. The provisions of the Act permitting the registration of associations as organizations have been held to be valid as being incidental to the power conferred by s-5l(xxxv) of the Constitution. See Jumbunna Coal Mine, No Liability ve Victorian Coal Miners' Association ((1908) 6 C.D.R. 309). Section 5 imposes a penalty on an employer if the employer dismisses or otherwise adversely affects an employee by reason of the employee's connection with an organization. Further, where an employer is convicted of an offence against s.5, the court is empowered to make ancillary orders and give other directions for the benefit of the employee. The action of the employer qua the employee is prohibited only 1f it is by reason of any one or more of the circumstances enumerated in pars. (a) to (£) inclusive of s.5(1) of the Act. The circumstances in this sense are the facts by reason of which the employer takes action against the employee. An employer may have many reasons for taking the action. In order to establish an offence under s.5, it is not necessary for the informant to establish that the reason alleged was the only or sole —~g8- reason actuating the employer; the reason alleged need not be the predominant reason: '... ait is enough if it is an operative reason, that is to say, a substantial reason im the totality of reasons «...'. See Barwick C.J. in Mikasa (N.S.W.) Pty. Ltd. v. Festival Stores ((1972) 127 C.L.R. 617, at p-635), where the Chief Justice was considering the expression 'for the reason that' contained in s.66B(2)(d) of the Trade Practices Act 1965. See also Stephen J. ((1972) 127 C.L.R. at pp. 656-659). The Industrial Court (per Smithers and Evatt Jd.) in Bowling v. General Motors-Holdens Pty. Ltd. ((1975) 8 A.L.R., at p.200) has expressed the effect of s.5 an this way: 'Reading s.5(4) as part of s.5 taken as a whole, we are of opinion that a particular action taken by arm. employer may be said to have been actuated by a particular reason or circumstance if that reason or circumstance was a substantial and operative factor influencing him to take that action. Further, an employer may be 'said to have been actuated by a particular reason if it was a substantial and operative factor influencing him to take that action, although that reason was but one of a number of reasons which so influenced him'. See also Cuevas v. Freeman Motors Ltd. ((1975) 25 F.L.R. 67)." In. giving those reasons and referring to the particular facts of that. case, I said at pages 270-1: ""Counsel for the informant did not argue that the defendant had failed to prove that, in dismissing the informanc, it had not been actuated by reason of either of the circumstances that the informant was a member of an organization or was entitled to the benefit of an award. To so argue would have been futile. It was a condition of his employment by the defendant that the informant become and remain a member of the organization. The award was binding on the defendant with respect to all employees coming within the scope of the award, whether members of the organization or not. I find that the defendant, in dismissing the informant, was — oo -9- not actuated by reason of the circumstance that the informant was a member of an Organization, nor by reason of the circumstance that the informant was entitled to the benefit of an award." I propose to apply those principles to the facts of this: case. In my opinion, the applicant has failed to show that there is a serious question to be tried. To put the matter more bluntly, the applicant has failed to show an arguable case that the respondent has committed or is continuing a contravention of s-5 Conciliation and Arbitration Act. -For present purposes, the facts can be treated as not being in dispute. It is a condition of employment by the respondent. at its St. James Library construction site that its relevant employees are financial members of the B.W.I.U. It is bound by the award_to which it and the B.W.I.U. are parties. The injury or prejudice to the applicant is not by reason of the circumstance that he is a member of the B.W.I.U. but by reason of the circumstance that he is not able to satisfy the respondent that he is a financial member of the B.W.1I.U. That is the very antithesis of the offence created by s.5 Conciliation and Arbitration Act. It is for those reasons that I hold that the applicant has not been able to show a serious question to be tried. -10- Accordingly, it is not necessary to consider the question of the balance of convenience. Before concluding these reasons, I should express my concern about one other matter. Serious questions exist between different factions of members of the B.W.J.U. within Western Australia. Those questions are the subject .of litagation in the Federal Court. The hearing of that litigation is to commence next month. in the interests of fairness and justice, no member of the B.W.I.U. should be adversely affected in his employment pending the hearina and determination of those guestions. Tt shovld not be heyond reason to expect that some suitable arrangements could be adopted under which all members of the B.W.1I.U., irrespective of whether they recognise or adhere to the Branch or the State Union, should be able to continue in their employment. The parties should remember that one of the chief objects of organizations is to protect the industrial interests of their members. This object should be observed. The application for interlocutory relief is refused. -pecbaree eT ep EEE NET 1 NEG I certify that this and the mM ¢ i | preceding pages are 4 true copy of the d I Reasons for Judgment herein of ihe Honowable Mr. Justice NCRTHRO: Sanh aOR —) { i Associate ~ (LOA WO { i) 4 Dated Bolt 184 4 bal