Industrial law access to employees - CATCHWORDS ~ award breach - authorised person whether authorised person was to conduct legitimate union business Conciliation & Arbitration Act 1904 ~ 5. 119 Clothing Trades Award 1982 ~- clause 29(b) refused seeking THE CLOTHING AND ALLIED TRADES UNION OF SOUTH AUSTRALIA v TAYLOR CLOTHING MANUFACTURING COMPANY PTY. LIMITED CORAM DATE PLACE KEELY J. 12 JUNE, ADELAIDE IN_THE FEDERAL COURT OF AUSTRALIA ) ) SOUTH AUSTRALIA DISTRICT REGISTRY ) S.A. No. 9 of 1985 ) INDUSTRIAL DIVISTON ) BETWEEN: THE CLOTHING AND ALLTED TRADES UNION OF SOUTH AUSTRALIA (Applicant) AND: TAYLOR CLOTHING MANUFACTURING COMPANY PTY LIMITED (Respondent ) 12 JUNE 1985 KEELY J. REVISED ORAL JUDGMENT This is an application under s.119 of the Conciliation and Arbitration Act 1904 (the Act) for the imposition of a penalty upon the respondent for an alleged breach of clause 29(b) of the Clothing Trades Award 1982 (the award). It alleged that on 24 April 1985 the respondent farled to comply with clause 29(b) :- "in refusing permission to John Stanton a person duly authorised in writing to reasonable ingress into the factory and access to the employees during the midday meal to conduct legitimate union business." The wording of the alleged breach is somewhat odd. It was criticised by the respondent, but I accept Mr Hayes' submissions, on behalf of the applicant, as to the proper construction of clause 29(b). On the evidence and the agreed facts I find that at all material times: 1. The respondent was a company incorporated in the State of South Australia. 2. The applicant, the Clothing and Allied Trades Union of Australia (the union), was an organisation of employees, registered under the Act, and was affected by the alleged breach. 3. The award was binding on the respondent which conducted a business of manufacturing fashion garments at a factory (the factory) at 436 Dunorlan Road, Edwardstown, South Australia. Members of the union were employed at the factory, their employment being governed by the terms of the award. 4. Clause 29(b) of the award provided as follows : "(b) An employer shall permit any person authorised by the Registrar or Deputy Registrar in writing to enter from time to time the one or several factories or workshops of that employer during the midday meal to conduct legitimate Union business; and once during each month at a time most convenient to an employer during working hours, for the purpose of collecting members' contributions. Such authorised person shall inform the person-in-charge (a person shall be in charge) of his or her arrival before entering the workshop or factory. Such official shall have reasonable ve ' ingress into the factory and access to the employees. If any official so authorised makes himself or herself objectionable during any = such visit to the employer (or his or her representative) or to any employee, his or her authorisation may be terminated by the Registrar or Deputy Industrial Registrar on an application by the employer." 5. Mr John Stanton, a union organiser employed by the union at its South Australian branch, was an authorised person within the meaning of clause 29(b) of the award. His authority to enter the factory was in the following terms :- Clothing Trades Award, 1982 Permit To Enter Pursuant to Clause 29 of the above award I hereby authorise John Stanton of 42 Fraser Street, Happy Valley, S.A. 5159, an official of the Clothing and Allied Trades Union of Australia to enter the factory or workshop or receiving depot of any employer bound by the said award during working hours to do such things as are specified in Clause 29 of the award providing compliance with the said clause is observed. M.J. Boland Deputy Industrial Registrar" I turn now to the evidence. It aincluded an affidavit and oral evidence by Mr Stanton, who was also cross-examined. Mr Stanton's evidence was that he visited the respondent's factory shortly after noon on Wednesday 24 April 1985 and spoke to Mr Dunsby, the factory manager, about a report that: "... the Respondent had instituted a fixing of times and quotas in respect to the production which were to be recorded by the individual employees with gummed sheets for recording at the end of each day showing the percentage of work done by each employee and that such was not their requirement in accordance with the Award as they were not employed on a piece-work system at that time." He said that he informed Mr Dunsby that, as 1t was lunch time for the respondent's employees, he intended to enter the junch room to discuss that matter with the union's members and to inform them of their entitlements and of the union's attitude on the matter. Mr Dunsby told him that he was not permitted entry to the lunch room and barred his entry to that room from a corridor. The evidence in the case includes detailed statements in the affidavits of Mr Taylor, the Managing Director of the respondent, and of Mr Dunsby as to the conversations on 24 April 1985 and each of those deponents has been cross-examined. In addition, Mr Dunsby gave evidence that he and Mr Stanton had had a conversation about six or seven months before 24 April 1985 in which the respondent's work system was discussed. There was a conflict of evidence as to that and as to a number of other matters. Mr Dewhirst, in his final address on behalf of the yespondent, criticised the evidence of Mr Stanton and strongly criticised his evidence that, until a short time before 24 April 1985, he was unaware of that aspect of the respondent's work system as to which Mr Stanton was seeking to speak to the members on 24 April 1985, and to which the union objected. Mr Dewhirst described that evidence as "a fanciful suggestion on the part of Mr Stanton" and contended that Mr Stanton, who called at the factory every few months, must have been aware of the system. There is some force in that comment. On the other hand, if what Mr Dunsby said in his affidavit in paragraph 5 as to the conversation on 24 April 1985 is correct, then it 1s surprising that in that conversation there was no reference by Mr Dunsby to the discussion which he said - during cross~examination but not in his affidavit - had occurred six or seven months earlier; had that occurred one would have expected some reference to it in the conversation on 24 April 1985. Mr Dunsby's account (in paragraph 5 of his affiavit) of the conversation on 24 April 1985 did not suggest that any such earlier conversation had occurred and is scarcely consistent with such a conversation having taken place. On Mr Dunsby's affidavit he not only failed to refer, in the conversation on 24 April 1985, to the conversation which he says occurred six or seven months earlier, but said to Mr Stanton "We should talk about the system first". The word "first" meant before Mr Stanton's proposed discussion on that day with the employees and rather suggests that the respondent's system had not been the subject of previous discussion between Mr Dunsby and Mr Stanton. The evidence of Mr Stanton was contradicted by that of Messrs Taylor and Dunsby ona number of matters. There were also discrepancies between the evidence of Mr Taylor and that of Mr Dunsby and, where that occurs, I accept the evidence of Mr Taylor rather than that of Mr Dunsby. However, neither the cross-examination of the three witnesses nor the demeanour of any of them was such as to enable me to decide whether to accept Mr Taylor's evidence or Mr Stanton's evidence as being an accurate account of precisely what was said between the three witnesses on 24 April 1985; nor to decide whether there had been an earlier discussion between Mr Dunsby and Mr Stanton about six or seven months before 24 April, 1985. In those circumstances I have considered whether the evidence of Mr Taylor itself shows that the respondent breached the award, and have reached the conclusion that it does. Passages of some significance in his cross-examination by Mr Hayes are as follows : Question. "So if I can just recap the factual situation from what you observed. As a member of management you had no intention of permitting Mr Stanton to speak to his members on that occasion on that topic, namely, the - perhaps I can loosely refer to it as the quota work system? -- (Answer ) That is correct. (Q.) That you observed Mr Dunsby physically block his passage to the lunch room along the corridor but not in any heavy handed way? -- (A.) That is right. (Q.) That neither you nor Mr Dunsby had any doubt about Mr Stanton's written authority pursuant to the terms of the order to have access to his members? (A.) -- Correct. (Q.) That the time when Mr Stanton sought access waS a reasonable time from the point of view of the Management, namely, the lunch break? -- (A.) Correct," (Transcript p.57) A littie later Mr Taylor was asked : (Q.) "the quota system that was in dispute on that occasion related to a method of work being worked by members of the union? ~~ (A.) Yes. (Q.) And it was an issue which again, rightly or wrongly, concerned the union, and that had been made clear to you as the management? --- (A.) It was an issue for the union. Whether it is misunderstood by them or not - ~ - it i5 an issue for the union, but that issue was to be discussed, not to destroy an internal working system of a company. It had to be discussed first before they went to the members and told them they need not use it .... And they insisted on doing just that ....Therefore, they were barred entry." (Transcript p.60) Another passage in Mr Taylor's evidence was as follows (Q.) "So there is no doubt, is there, that - Mr Dunsby refused to allow Mr Stanton to go and see his members? -- (A.) No doubt at all (Q.) Right, and that was supported by yourself? -- (A.) Myself, yes. (Q). Right. There is no doubt that you had no intention of allowing Mr Stanton at that point to go and see his members? -- (A.) Not until further discussions had taken place as to the illegal(ity) or legality of the situation. (Q.) Yes? -- (A.) It was too damaging to the business." (Transcript p.52) It will be seen from the evidence that the respondent's view at the time was that "it was too damaging to the business" to allow Mr Stanton to go and speak to the union's members "and tell them not to abide by" the respondent's system. Mr Dunsby said (Transcript 78-80) that he "did not consider it legitimate union business to go and tell" the members to not abide by a company policy which was not 1llegal or unlawful and felt that the award did not give Mr Stanton the right to do that. Mr Dewhirst endeavoured to support the respondent's action by contending that Mr Stanton, in seeking to tell the Members on 24 April 1985 not to abide by the respondent's system, was not seeking to "conduct legitimate union business" within the meaning of clause 29(b) of the award. In considering whether Mr Stanton was seeking to "conduct legitimate union business, it is appropriate to refer to the following admissions by Mr Taylor as to what the respondent knew at the time. During his cross-examination he was asked : (Q.) "Did he also indicate aoe that the union recognised that the company does have to keep a check on what work is done'? --- (A.) Yes, words to that effect. (Q.) Right. Did he also indicate that the union was not seeking to take away the right of the company to tell its employees that an employee was not doing a fair day's work or was working below standard?--- (A.) That 1s correct." (Transcript p.55-56) The award does not expressly state what constitutes "legitimate union business" and it is not for this Court to seek to expand upon the meaning of the words used in the sub-clause. The Court's duty is to decide whether, on the facts disclosed by evidence, Mr Stanton at lunch-time on 24 April 1985, at the respondent's factory, was seeking "to conduct legitimate union business". In my opinion he was seeking to do so in relation to a matter which, in Mr Taylor's words (p.60), was "an issue for the union". Mr Stanton was not seeking to do anything that was illegal or unlawful and, in addition, expressly recognised certain rights of the respondent - as is shown by the earlier quotation from Mr Taylor's evidence at pp.55-56 of the transcript. The "business" that he was seeking to conduct was plainly "union business" and, in my opinion, it was "legitimate" union business in the sense that there is nothing to suggest that the proposed conduct would be a contravention of the Act or illegal for some other reason, or that it would be unlawful in any way. IT accept Mr Hayes' submission that the words "legitimate union business" in clause 29(b) of the award are not limited to business related to the award or to matters arising out of the award. Mr Dewhirst referred to an oral judgment of mine in Philopoulos v_Farabram Nominees Pty. Limited (delivered 2 May 1980). On one reading of the relevant passage it may convey that the words "to conduct legitimate union business" do not include avisit to an employer's factory at lunch time by an authorised person who 1s seeking to explain to employees why they should become members of the union. However, part of the judgment suggests that it may have related not to one visit but to frequently repeated visits to the premises and it may be that it was regarded as an abuse of the power. I should say that it was a short judgment delivered orally and it did not set out fully the evidence to which it related. As to the Passage relied upon I simply make three comments. First, the statement, on any view, was an obiter dictum. Second, as I have said, the facts are not fully set out. Third, 1f the passage in the judgment conveys the meaning sét out above then, as presently advised, I am inclined to the view that it is not a correct statement of the law. Mr Dewhirst contended that Mr Stanton's attempt to exercise the right conferred upon him by clause 29(b) was not a bona fide exercise of that right but the evidence does not support that contention and it is rejected. Nor can I accept his contention that Mr Stanton failed to communicate to Mr Dunsby the fact that he was a "person authorised in writing" within the meaning of the clause. Mr. Taylor agreed that the existence of Mr. Stanton's authority was not doubted by him or by Mr. Dunsby (transcript p. 57). Accordingly, on the evidence I find that on 24 April 1985 there was a breach by the respondent of clause 29(b) of the award in denying entry to Mr Stanton "during the mid-day meal to conduct legitimate union business." As to penalty I accept Mr Dewhirst's submission that, if the Court considered that the breach was a technical one and that no penalty was required in all the circumstances, it has a discretion to refrain from imposing any penalty (see Parkinson v. Grazcos Co-operative Ltd. (1958) 1 F.L.R 90). However, in my opinion, the breach was not in any sense only a technical breach and a penalty should be imposed. I have taken into account all that Mr Dewhirst urged in mitigation of penalty. I accept that the maximum penalty for this breach of the award ($1,000) should he reserved for the worst type of breach. Further, it has not been'suggested that the respondent has previously breached this or any other award and the respondent's evidence suggests good relations between it and Mr Stanton during his previous visits. On the other hand I have had regard to the public interest in deterring employers from refusing to comply with the ciause. Clause 29 15 important in ensuring that employers bound by the award comply with its provisions and is intended to assist the union in carrying out its role of enforcing compliance with the award. The circumstances revealed by the evidence in this case show, 1n my opinion, that the respondent's breach of the clause cannot be described as a very serious one but, on the other hand, was certainly not a minor breach. I fix a penalty of $350 and order, pursuant to s.120 of the Act, that the whole of the penalty be paid to the union. ! ten + [a . : t - Keely , VQ Tone, ASS