na ' ~ t 2 100 CATCHWORDS 1 I t te | Industrial law - information for offence - dismissal of ' be? employee member of registered organization - part of é, industry wide dismissal of all members to counter industrial campaign by union - whether dismissal by reason of the circumstance" that employee was union yo member - reimbursement of wages lost - whether amount to | be reduced by donations received. Conciliation and Arbitration Act ss. 5(1), 5(4), 5(5) a mre rer oat errr e roaG > : Stewart v F.T.A. (1947) 60 CAR 470 ! Timber Merchants and Sawmillers Assn. v B.W.I.U. (1948) 61 CAR 128 Metal Trades Emplovers Assn. v F.E.D.F.A. (1949) 64 CAR pe pHs ' 288 ements rast we ook Melbourne and Metrovolitan Tramways Board v Aust. Tramway and Motor Omnibus Emplovees Assn. (1950) 66 CAR re eK? TF Application by A.B.C.E. and B.L.F. (1976) 178 CAR 1038 Sandilands v Aust. Newsprint Mills Ltd. "7 oo ace Paeicivat Exonrayr woe To Sa x Sutherland v Hills Industries Ltd. (1982) 2 IR 2987 NORMAN MARTIN v LEWIS CONSTRUCTION COMPANY PTY. LTD. No. V6 of 1986 KEELY J. MELBOURNE 30 JUNE, 1986 DETR ee ame ge <é topper ogra, ream aan Caml ae By os see rere IN THE FEDERAL COURT OF AUSTRALIA ) ) VICTORIA DISTRICT REGISTRY } ) ) INDUSTRIAL DIVISION No. V6 of 1986 BETWEEN: NORMAN MARTIN Prosecutor AND: LEWIS CONSTRUCTION COMPANY PIY. LTD. Defendant COURT: KEELY J. DATE: 30 JUNE, 1986 PLACE: MELBOURNE MINUTES OF ORDER THE COURT ORDERS THAT 1. Lewis Construction Company Pty. Ltd. 15 convicted of dismissing Norman Martin on 14 February 1986 by reason of the circumstance that he was a member of the Australian Building Construction Employees and Builders Labourers Federation. 2. Lewis Construction Company Pty. Ltd. shall pay a penalty of $150.00. Sate ta 3. Liberty is reserved to Norman Martin to apply for an order that he be reimbursed wages lost by him. (Settlement and entry of 36 of the Rules of Court) Orders is dealt with in Order > mn toe sr nee Wen TT pre yer ee: te ae! [ae . IN THE FEDERAL COURT OF AUSTRALIA VICTORIAN DISTRICT REGISTRY wevrvew INDUSTRIAL DIVISION No. V6 of 1986 BETWEEN: NORMAN MARTIN Prosecutor AND: LEWIS CONSTRUCTION COMPANY PITY. LTD. Defendant 30 JUNE, 1986 KEELY J. REASONS FOR JUDGMENT Norman Martin (the prosecutor) on 24 February 1986 laid an information under s. 5 of the Conciliation and Arbitration Act 1904 (the Act) against Lewis Construction Company Pty. Ltd. (the defendant) that on 14 Fabruary 1986 it dismissed him by reason of the circumstance that he was a member of the Australian Building Construction Employees and Builders Labourers Federation (the BLF). The evidence has satisfied me beyond reasonable doubt that grater aaceooese. orn suo women rs me es wen? wo . eee tl (1) the BLF was on 14 February 1986 an organization of employees registered under the Act. (2) the defendant was incorporated at all material times. (3) the prosecutor was employed by the defendant at the building site for the South Eastern Medical Complex (the SEMC site) from May 1985 until February 1986. (4) on 14 February 1986 the prosecutor was given notice of termination of his employment by the defendant. (5) the prosecutor was a member of the BLF at all material times. (6) throughout the course of its employment of the prosecutor the defendant believed that the prosecutor was 4 member of the BLF. At or about the same time on 14 February 1986 all other members of the BLF employed by the defendant were dismissed, being given the notice required by the Building Construction Employees and Builders Labourers (Consolidated) Award 1982 (the award). It was common ground that all builders labourers at the SEMC site, whether employed by the defendant or by contractors, were members of the BLF and that the defendant and the contractors on that site - and the employers on sites in the iandustry generally - all required that all builders labourers employed by them be members of the BLF. The prosecutor was an elected shop steward at the SEMC site. oO te tt eat wey . Yr, is , ' } e fe fe) Section 5(4) of the Act provides that:- "In any proceedings for an offence against this section, if all the relevant facts and circumstances, other than the reason or untent set out in the charge as being the reason or intent of an action alleged in the charge, are proved, it lies upon the person charged to prove that that action was not actuated by that reason or taken with that auntent." The onus placed upon the person charged is an onus to do 50 upon the balance of probabilities. The parties were invited to formulate the findings of fact which, in their submissions, should be made by the court on the evidence which had been called before it over a period of eleven sitting days. The defendant sought findings that included the following: "In February 1986 the BLF through its members was engaging in an unlawful campaign of andustrial action in support of its claim for the 3.8% National Wage Case flow-on. The campaign involved the imposition by BLF members cf bans and limitations on work upon some 15 building and construction sites in metropolitan Melbourne and Geelong. Lewis Construction Company Fty. Ltd. acted in concert with a large number of other building and construction companies in an attempt to defend itself against that campaign. There was a reasonably held apprehension on the part of the Defendant that if action against the 3.8% campaign was not taken bans and limitations upon work would be imposed at sites, including the site upon which the prosecutor was working, whieh atl that time were unaffected by bans. The tarmination of the Prosecutor's contract of employment was brought ahout because Che Defendant considered that this was the only way in which 1t could defend itself against the campaign". Tt is not necessary to refer in these reasons to all of the witnesses who were called by the defendant. The decision to dismiss the prosecutor was made by Jon Anthony Goodsall, the Managing director of the defendant. He gave evidence of a campaign by the BLF Tor a "3.8% flow-on" and for a 35 hour week (sometimes called a 36 hour week and sometimes called a 939 day fortnight). He said that that campaign was manifested by bans and limitations upon work on building sites and that it was his decision to dismiss all members of the BLF on all sites of the defendant in the Melbourne metropolitan area and in Geelong. At the time of the decision to dismiss the prosecutor, there were no bans by the BLF on work at the SEMC site but there were BLF bans at various other sites of the defendant, including projects at 222 Exhibition Street, and the Corio Shopping Centre. As to the terms of his instruction to officers of the defendant to dismiss all the members of the BLF employed by the defendant, he said that he "agreed with at the stance that was being taken and we would put it into effect in accordance with the decision Con 12 February 1986] of the Genéral Contractors' meeting" (the General Contractors' meeting). That was a4 Meeting of members (including the defendant) of the Master Builders' Association of Victoria (the MBAV), which was an organization of employers registered under the Act. Mr. Goodsall said that the decision of the General Contractors' meeting was "that unless all bans and iimitations were lifted across all those sites with bans and limitations on by Thursday evening, 13 February, all men would be terminated at the close of business on Friday, 14 February". He explained that by "all men" he meant . "all members of the Builders Labourers Federation". The terms of the resolution carried at that meeting on 12 February 1986, so far as material, were as follows:- "That the BLF be advised that all bans and limitations must be lifted and all claims for the 3.8% and other claims in breach of the National Wage Guidelines and/or the Memorandum of Understanding, be withdrawn by 12 noon, Thursday 13th February, 1986. In the event of a refusal by the BLF to comply, then all builders labourers working on MBA members sites will be terminated by giving 8 hours notice to finish at ceasing time on Friday 14th February, 1986. wee nae No new employment or reinstatement of builders labourers until further advice from MBAV. Where builders labourers and/or tradesmen are employed by sub-contractors, the prime contractor will ensure that the sub-contractors implement the foregoing." On 12 February 1986 the MBAV sent to the BLF a telegram which was in the following terms:- "re: Bans and Limitations in Support of the 3.3% Last year, building employers warned your federation that they were no longer prepared to tolerate your union's industrial tactics. Your union''s current industrial campaign over the 3.8%, which attempts to divide the industry will not be allowed to succeed. Building emplovers are strong in their resolve to support any building contractors singled out by your union. You are hereby advised that unless you withdraw all bans and limitations and ail 3.8% claims and other claims in breach of the national wage guidelines and/or the Memorandum of understanding by 12 noon Thursday, 13th February, 1986, building employers will have no alternative but to take direct action by terminating builders labourers as from Friday, 14th February, 1986. Jd. A. Glasson, Industrial Relations Manager, M.B.A.V." As to his decision on behalf of the defendant on 12 February 1986, Mr. Goodsali said that the "decision was that unless all bans and limitations existing on our sites were lifted by the evening of TYhursday, 1323 awse ws ot weet op ee ee "ae -pos oe bas suahaad ier teins callin een ines anentememeaet af pete February, all members of the BLF would be terminated at close of business on Friday, 1+ February." Mr. Goodsall later said that he was not sure as to the time for lifting the bans (the ultimatum of 12 February 1986); on the evidence it is clear that it was at noon. Mr. Goodsall said that the considerations in his Mind at the time of giving the ultimatum on behalf of the defendant on 12 February 1986 were:- "Again, we could see the claim for the shorter working week and the 3.8 per cent being pursued in the manner - the same Manner in which previous national issues had been pursued: a question of divide and conquer where possible. We believed ' individually and as an industry that we could no longer put up with the Cquerillal type actions and the campaigns by the Members, oc the federation itself and, as such, we were determined that we should resist their claims under all circumstances. As a side issue - as another issue, not side - there was the question that all contractors nad agreed to abide by both the federal and the state government codes of conduct, and to accede to the demands of the federation in the broadest term would have been against the codes of conduct and also against the rulings by the Conciliation and Arbitration Commision." Mr. Goodsall gave evidence that after the ultimatum of 12 February 1986 he was informed by one of the defendant's officers "that the bans and limitations had not come off all sites". He said that he decided "to continue with the terminations", saying of the ultimatum of 12 February 1986 tnat the "express purpose wee - ron was to have the claims for the 3.8 per cent and the shorter working week lifted." It is clear on the evidence (including the MBAV telegram on 12 February 1986 to the BLF) that those "claims" were claims by the BLF on behalf of its members generally and not claims made by or restricted to the members of the BLF emploaved by the defendant at the SEMC site. As to his reasons for che dismissal on 14 February 1986 of all members of the BLF employed by the defendant, Mr. Goodsall said: "There were two reasons for doing it: firstly, we felt it absolutely essential ' that the industry should take this action in a concerted manner and in a unanimous manner and that decision was brought about by previous actions of the Builders Labourers Federation over previous years in their campaigns to force their will upon the industry." Asked as to che defendant's sites where no BLF bans existed on 12 February 1986 he said: "Based on the previous tactics employed by the federation I felt that there was a very great risk of bans and limitations being placed on those sites that at that time did not have bans and limitations on them." As to the dismissal of Mr. Martin, he said that there "was no decision by me to personally sack Mr Martin as a person." He assented to a question asking roe whether the position was "in deciding to sack all of your builders labourers, 1f the bans were not lifted by a certain time, that that decision necessarily happened to include Mr Martin, and therefore you were deciding to sack Mr Martin, 15 that right, along with all the others?" On this aspect the following answers in cross-examination were given by John William Downes, who at the time of the dismissal was employed by the defendant as its employee relations manager - a position he had held for seven vears. + ."That is not what I am asking you. Did you have any complaint, or did you, while you were employed by Lewis, have anv complaint about the way Mr Martin performed his work?---No. Did you ever say to him that you were less than satisfied with the way he performed his work?--~-No. Did you, while you were employed by the defendant, have any complaint about Mr Martin's alleged absences from work?---I think that at times I might have chided him about it. aoe Come 14 February, you Chad] no active complaint at that time in respect of that matter?---No, I did not. Mr. Downes, during the time Mr Martin was employed by Lewis do you say he engaged in any form of misconduct as an employvee?--~--I suppose technically you would have to say yes he did because he left the site without reference to anybody and came and went as he Pleased, but then I quess we had some responsibility there, too. 7 aaaeeeatane ae ee ' N a i aeons 10. Come 14 February, you had no active complaint about that matter at that time?---No. And certainly you had not raised that with Mr Martin?---No. That was not the reason he was sacked, nor were his alleged absences from work the reason he was sacked?---No. Nor was the way in which he performed his work the reason he was sacked?---No. The reason he was sacked had nothing at all to do with his work performance or conduct at work?---No. aaa In respect of Mr Martin, because we are only talking about him at the moment, what was that reason?---I did not even think about Norm Martin. His Honour: Did you say you did not even ' think about nim?---No. The sacking was in no way personal to Mr Martin; is that right?---No, it was not personal to anyone. Miss Hickey: It had to do with vour perception of the federation's activities; is that right?---It had to do with the resolution that was taken by the Master Builders Association. And you attended the relevant meetings?---Yes. Mr. Glasson, who has been the director of industrial relations of the MBAV for several months and previously was its industrial relations manager for approximately three years, gave evidence as to meetings of the Strategy Committee of the MBAV. He normally attended those meetings, at which generally one or two aenrakete teal atiied wore oe oe "+ wee he other officers of the MBAV were present together with the representatives of about 12 member companies, although the number of such companies varied; those representatives were "generally speaking at chief axecutive or managing director level". He said that he gave detailed reports and advice to the meetings of the Strategy Committee. Of the three options put by him to that committee on 12 February 1986 the one he recommended was that action should be taken "similar to that which occurred in WNovember-December 1985"; his recommendation was adopted by the Strateagy Committee and was also adopted by the General Contractors' meeting withcut amendments of any substance. The reference in his recommendation to "November-December 1985" was to an ultimatum which had been given to the BLF by the MBAV. On 5 December 1985 a telegram had been sent by Mr. Glasson to the Federal Management Committee of the BLF in the following terms:- "Despite advice from your union this morning that all bans and limitations over the 35 hour week and 3.3% campaigns would be lifted teday across Australia, it 15 now clear that this is not the case. On a number of projects contractors have been told that their sites are blacked. This situation will not be tolerated by buiiding employers. Unless these remaining bans and limitations are removed forthwith, buirliding industry employers will have no option but to take ogre gm Nye ~F So meres pee oe 12. industry wide direct action to support those contractors singled out." On the following day, a further telegram was sent by Mr. Glasson to that Committee which read:- "As a result of a meeting of MBAV members this morning, you are hereby advised that unless all bans and limitations imposed in Support of the various BLF campaigns are lifted on all sites by 12.00 noon, Monday, 9 December 1985, all builders labourers employed on commercial and industrial building sites will have their services terminated on Tuesday morning, 10 December 1985. Additionally, subcontractors who employ builders labourers will not be permitted to carry out work on commercial and industrial building sites." Referring to his recommendation on 12 February 1986 that action be taken "Similar" to that in November~December 1985, Mr. Glasson said: " we had been through the exercise in late 1985 of our member companies standing together. From my point of view that had been successful, it was felt that a similar course should be pursued on this occasion." Other evidence made it clear that "the bans and limitations were withdrawn" after the ultimatum of 6 December 1985. During the cross-examination of Mr. Glasson the Following evidence was given:- pe eae at 4 dee Robey pee wee en ene tent "And you were concerned with your perception of the Builders Labourers Federation and your perception of the industrial campaign it engaged in; 12s that right?---No. Those perceptions were the perceptions of the Master Builders Association. They were also your perceptions, Mr. Glasson?--~-Yes. The industrial campaigns with which you were concerned were the $9 campaign?--~Yes. The MCG lights?---Yes. The Sydney Police Centre?~---Yes. Superannuation?---Yes The shorter working week?---Yes. The 3.87---Yes. And those views of yours in relation to those industrial campaigns of the BLF and your perception of the BLE as an organization and the way it operated found its counterpart in the views expressed at the meeting of the strategy committee on 12 February; is that right?---Yes. And, indeed, it also found its counterpart in the views expressed at the meeting of general contractors on 12 February?---Yes." Mr. Glasson did not accept the suggestion put to him in cross-examination by Miss Hickey, of counsel, on behalf of the prosecutor, that "the ultimate view" on 12 February 1986 of the Strategy Committee and of the General Contractors' meeting "could be said to emanate from Chisd] views in relation to" the "industrial campaigns of the BLF ... and its mode of operation"; he said that "there has been a demand from the majority of 14. member companies of the associration for several years, for the association to take a strong stand against the BLF." During cross-examination he assented to the suggestion that he had "consistently expressed ... views concerning the industrial campaign of the BLF, ... its mode of operation, ... its lawlessness, Cand] the nature of its management via the federal management committee - Mr. Gallagher". He agreed that "those sorts of views are the ones that are held commonly across the industry «.. 50 far as the MBAV is concerned" but disagreed with the suggestion that he was responsible for those views being held widely across the MBAV membership, saying: "We have been required by our membership for some considerable time to take whatever steps were available to bring about the removal of the BLF from the various industrial relations fsystems]". In her final address, Miss Hickev, on behalf of the prosecutor, submitted that an employer who believed that an organization of employees was behaving in a lawless manner was not thereby entitled to ignore s. 5 of the Act, saying: "Certainly there is no warrant, in my submission, for an emplover choosing to ignore section 5 by reference to his view of the behaviour of the organisation with which he is concerned. Quite clearly, in my oe Par eas me geer= epee es lea * 15. submission, if there is a view that an organisation's activities can be considered as constituting lawlessness, then the appropriates course of action is to make an application under section 143 and that' the MBAV failed to do at a time when the attitude clearlv was that that was appropriate and no explanation has been offered as to why it failed to make such an application." Me. Glasson was asked by Mr. Kaufman whether "in November and December of 1985 and more particularly in February of 1986", the MBAV had considered applying for the deregistration of the BLF because of its industrial campaign. He said: "IT do recall consideration being given late in 1985 at the time of the rather extensive ecampaign of the BLF in November....- by myself - as to whether there was any realistic option available apart from the proceedings Cwhichl were being conducted before a full bench of the Conciliation and Arbitration Commission to bring about the cancellation of the registration of the BLF. What crossed my mind was the section, I think it is section 143 of the Conciliation and Arbitration Act, in my own mind, and I did subsequently discuss it with several other staff officers. I formed the view that there was no point in doing other than attempting to persuade the Commonwealth Government, who was the applicant in the deregistration case before a full bench of the commission, to take whatever steps were available to expedite the conduct of the case and bring about its closure at the earliest possible time. Now, that was the view I took then in February of 1986. The only consideration I gave to the question of the deregistration of the BLF was not on that occasion section 143 or any other section of the Conciliation and Arbitration Act but what avenues were available to again attempt to convey to the federal government the seriousness in our mind, the seriousness oo of the situation we were confronted with in Victoria and to convince the government that it should take steps to pass new legislation to effect the immediate cancellation of the registration of the BLF." Under cross-examination Mr. Glasson agreed that the MBAV in November 1985 was providing the Commonwealth with information as to "alleged industrial misconduct on the part of the federation and its members". He agreed that that information was supplied ina very detailed fashion before, during and possibly subsequent to November 1985 and that "that sort of information if it were substantiated or authenticated could nave provided the basis for an application by Ethe MBAV] under section 143"; as to whether there was any reason why that information would not have provided a foundation for an application by the MBAV for the deregistration of the BLF, he said "we took, cor I took the view, supported by other senior staff of the MBA that there was no point in initiating proceedings under section 143 when proceedings had already been commenced by the Commonwealth Government under the Building Industry Act 1985 which sought to cancel the registration of the BLF". He said that the hearing under the Building Industry Act 1985 began before the Arbitration Commission in October 1985 and the declaration was not made by it until early April 1986. is ~s awe 4° eete pe ee mon aa, wee eget - ae meny at 17. Mr. Glasson described those proceedings as "taking too long but not as long as the previous case which had involved an application by the Commonwealth Government to deregister the BLF". His evidence mada it clear that the previous case to which he referred was an Federal Court of Australia, seeking He application to the the cancellation of the registration of the BLF. said that that application was made by the Minister, on behalf of the Commonwealth of Australia, jointly with several States, including Victoria and Western Australia, the MBAV, the MBA of NSW and the Australian Federation of Construction Contractors; that the case "took many weeks of sitting days of the court because it sat in ... Victoria, ... New South Wales, ...Cand] Western Australia" and also, he believed, in other that those proceedings were aunitiated in late States; 1982 and that the MBAV withdrew from the proceedings in "about July 1984". any Asked 1n cross-examination whether there was reason why, in November 1985, the MBAV could not have made an application to deregister the BLF, Mr. Glasson said: "Because we took the view we would be involved in a case that would probably see us before the court for somewhere in the region of a year to two years." rao lr Nee ae ens abe TATRA we eee TAS 1 nga ge 18. Mr. Glasson explained that, apart from consideration by himself and other officers of the MBAV to the possibility of an application for deregistration, no consideration to the possibility of taking that course was given by any MBAV meetings, either in November-December 1585 or in February 1986, save for a resolution of MBAV contractors on 25 November 1985 that "Cilndustry calls upon the Federal Government to take immediate steps to deregister the BLF". It may be added that on the Friday before the day on which that evidence was given, Mr. Kaufman's attention had been drawn to four deregistration cases in which, after hearings which occupied only a few days in each case, the Commonwealth Court of Conciliation and Arbitration had ordered the cancellation of the registration of registered organizations of employees. In each case the court had so decided because of the industrial conduct of the organization, or of a branch or of a section of its members. Because of the way in which the defendant has put its defence namelv, that the defendant considered that the dismissals were "the only way in which it could defend itself against the campaign" of the BLF and the submissions by the prosecutor, referred to earlier, that the appropriate course of action would have been an og eee ae Ea aeee peas 2} af vs sa Ae ere Te oe 19. application by the MBAV to dereqister the BLF, it is desirable to refer to those cases and the principles enunciated in them. In Stewart v Federated Ironworkers Association of Australia & Ors. (1947) 60 CAR 470 the Full Court (Drake-Brockman CJ, Kelly, Foster and Sugerman JJ) said (at 474-5): "Tt is not necessary to refer here with any particularity to all the advantages, legal and practical, that an Association derives from registration under the provisions of the Commonweaith Conciliation and Arbitration Act. wae In return, however, for these advantages, it has corresponding obligations. And pre-eminent amongst these * is the obligation to act in consonance with the purpose and policy of the legislation under which the organization chose to be registered and from which it derives its authority. -.. the Union has on this occasion deliberately chosen a course which is inconsistent with, and indeed opposed to, an acceptance of the arbitral function... It 1s in rebellion against the system of arbitration. 2a. Yet it was in order that it might participate in that system that it sought and was accorded registration. There can, therefore, be only one result. The registration of the Union, the purpose and effect of which it has itself repudiated, must be cancelled." In the following year the Full Court ordered the cancellation of the registration of Building Workers Industrial Union of Australia (1948) 61 CAR 128 - a case in which the MBAV intervened. In that case Kelly J (at 135) said: re gost oewre mymare Mrs Pay Sorell "anirmeetineieeieinaien Foster 20. "I desire to say that there is ample authority in this Court for holding an organization responsible for the acts of one of its branches. Indeed the case referred to by Mr. Hancock (the Australian Railways Union case 42 CAR 564) itself provides an instance of an organization being held answerable for the acts of a branch." Jd (at 137) said: "This Union, as the evidence most clearly proves, has deliberately decided to adopt "direct action" to gain what, in the opinion of all these Authorities, it is not entitled to in justice and fairness, and has emphatically repudiated the Court and its arbitral procedure; it has withdrawn men from their employment; it has imposed "black" bans on shops; it has issued threats to employers and employees; it has publicly announced its determination to achieve its 'ends by the force of its own economic power, and though the "fight" as it is called is at present being actively carried on only in Victoria and mainly by the Victorian branch of the Union, it is clear, and has been openly admitted, that it is being sa conducted with the cognizance and approval of the Federal body - the Victorian State Secretary 15 also the Vice-President or the Federal Executive. It ais of course not possible to de-register a branch, but in this case the whole Union plainly takes responsibility for the Victorian action." and Kirby 7d (at 138) said: "... a Union cannot rebel openly against the system of arbitration set up under the Act and at the same time participate in the system." pom Le meaner ee a eon aya ee ee ' 1. oe a ae ro yr ee se gers In 1949 the Full Court cancelled the registration of Federated Engine Drivers and Firemens Association of Australasia (1549) 64 CAR 288. That was a decision of Kelly and Dunphy Jd, Foster J dissenting because he considered that the organization had not repudiated arbitration, saying (at 294): "In my view the application for de-registration is premature. I should encourage the organization in its effort to handle this episode and to bring this group into line with the Union's recognized arbitration policy." Again, 1n 1950 the Full Court cancelled the registration of Australian Tramway and Motor Omnibus Emplovees Association 66 CAR 345. In a unanimous judgment Kelly Cd, Foster and Dunphy Jd (at 347) said: "In effect, it Cthe Federal Council] is unwilling to correct, or to attempt to correct, the rejection of the arbitration of the matters in dispute which the Branch has received ... and so, the Court must conclude, has rejected arbitration in settlement of the dispute ae the organization has repudiated the system of arbitration set up by the legislature despite its obligation undertaken by virtue of its registration (upon its own application) to accept the decisions of constituted authority." The principles enunciated in those decisions are quite consistent with the reasons for judgment of the Industrial Court in the Master Builders' Association of N.S.W. vo B.L.F. (1974) 23 FLR 356; that hearing neers te epee ween oe ae ane ae F k b apparently occupied twenty sitting days but there is nothing in the report of the case to show that the very detailed evidence called by the applicant at such length Was necessary. Mr. Glasson was asked, in the light of the very short hearings in the four earlier cases, "is there something special about the building industry which Means you cannot run a case that way?". In his answer he did not suggest that there was any reason special to the building industry, but ventured the "conjecture" that in those cases there "may have been no defence... they may have acquiesced find their very deregistration". The reports of those decisions do not support that conjecture. Mr. Glasson said that he could onlv rely on his knowledge of deregistration cases and that those cases were fairly lengthy i.e. the three BLF cases in the Industrial Court (1974), the Federal Court (1982-84) and the Arbitration Commission (1985-86). It may be noted that Mr. Glasson said that the length of the case in 1982-84 "certainly surprised my organisation. We did not expect to be involved in a case that would take 50 long". The "surprise" of his organization that the case took "50 long" would undoubtedly be shared by any experienced advocate in the field of industrial law. . ee oma 5 However, as was pointed out to Mr. Glasson, the length of that case doubtless stemmed from the extraordinarily long case mounted by the joint applicants. In the light of the very short hearings which led to orders for deregistration in the four cases cited, it is very difficult - if mot impossible - to see any reason why the case was conducted at such length. Mr. Glasson has not suggested any reason why the joint applicants chose to present their cases to the Court at such length, knowing that time necessarily had to be allowed for the BLF to test and counter the allegations made against it. It is even more difficult to understand why the case-was presented by the joint applicants at such enormous length, when regard is had to the basis upon which the Industrial Registrar had granted to the BLF "yvegistration for the second time" in 1976. His decision (178 CAR 1038 at 1054) referred to affidavit evidence relating to a special Federal Council meeting of the BLF on i1 June 1976, at which the eleven persons present (from six States) unanimously carried a resolution (set out in 178 CAR at 1055) which included the following:- "It is understood that the privileges which attach to the status of a registered organization carry with them corresponding duties and responsibilities to further the achievement of the objects of the Act and in Particular to utilize the means provided by se ona 24. the Act for prevention and settlement of industrial disputes and fully to observe the letter and spirit of awards and agreements made by or under the auspices of the Commission. Such dutires also require the officers of an organization to work to minimise direct industrial action. The Federal Council 15 acutely aware that failure to discharge such duties and responsibilities or otherwise to give effect to this undertaking could lead to the Federation again being deregistered and so render abortive the time effort and costs which have been expended on the present application." As the Industrial Registrar said in his decision (at 1055-1056): "Whether or not this applicant should be invested with corporate status for a second time, after its registration has been cancelled, is a matter of great public 'interest. The community is entitled to be assured that the &8.L.F. accepts the duties and liabilities which accompany the rights and privileges which flow from registration. Reference has already been made to the resolution which was passed unanimously on 1 June 1976 by the highest governing body of the B.L.F. It acknowledges the objects of the Conciliation and Arbitration Act and recognizes that rights and privileges conferred by the Act have corresponding duties and liabilities. In the light of the B.L.F.'s past history, is that resolution sufficient to merit the grant of registration for a second time? To answer "yes" to that question is an act of faith. But in my opinion, it is difficult to imagine a more complete undertaking. In addition, there are statements made on oath by the Federal President. The resolution and statements have played a vital part in helping me to decide this application; I accept them as being made in good faith at the applicant's top management level." Seen se ae As the last passage shows, two matters played a "vital part" in the Registrar's decision to grant the application, (1) the unanimous resolution of the special Federal Council meeting of the BLF, part of which is set out above and (2) the sworn evidence of the Federal President, which included a statement "that the 8.L.F. now has a general policy that all Branches should abide by decisions of the Commission" (quoted by the Registrar at p. 1054). In addition, the Industrial Registrar expressly adverted to the availability of the remedy of a second cancellation of the registration of the BLF if it did not adhere to its "complete undertaking" or to its new "general policy" of abiding by Arbitration Commission decisions, referred to in the sworn statements of its Federal President. He said (at 1056): "If future experience shows that my faith in the B.L.F. has not been well founded, there remains the ultimate sanction of section 143." In the light of that clear warning by the Registrar to the BLF and his explicit statements as to the basis upon which he had decided to grant registration "for a second time, after its registration has been cancelled", it may seem incredible that Mr. mm Glasson or the MBAV should believe that an application for deregistration of the BLF would have required a long hearing - i.e. if their "perceptions" of the BLF industrial campaign were correct. Notwithstanding what I have said as to the absence of any need for a long hearing, I accept that on 12 and 13 February 1985 the defendant in fact believed that dismissal of all members of the BLF was the only course open to 1t as ameans of countering the BLF campaign. Although each had some difficulty of recollection from time to time on various matters, If accept the evidence of Mr. Goodsall and Mr. Glasson on that' aspect. Iam referring to the evidence of Mr. Goodsall that: "... we felt it absolutely essential that the industry should take this action in a concerted manner and in a unanimous manner and that decision was brought about by previous actions of the Builders Labourers Federation over previous years in their campaigns to force their will upon the industry. ...To try and force the members of the Buiiders Labourers Federation to withdraw their claim for the 3.8 per cent and the 35 hour week." Similarly, the evidence of Mr. Glasson as to his perceptions of the BLF campaign and his belief that the action decided upon at the General Contractors' meeting, adopting a recommendation made by him, was "the only practical course open to the member companies attending sees et Mein were meas xe epee spe wae wapee 27. that meeting to take", a "view supported by the meeting". Mr. Kaufman on behalf of the defendant submitted that, on the evidence as to "the real reason for dismissal", the defendant had not committed an offence against s. 5 of the Act in dismissing the prosecutor. In support of that submission he sought to place great reliance upon the reasons for judgment of Smithers J in Sandilands v Australian Newsprint Millis Ltd. (1982) 3 IR 386. However, in my opinion, that judgment does not assist the defendant. It will be noted that in that case Smithers J {at 392) expressly accepted the evidence, given both by Mr. Gibson, the Managing director of the defendant and by Mr. Thompson, the Albury manager of the defendant's mill, that: "\... Mr Sandilands' membership of the PPWFA was not a factor which influenced them to dismiss him. ...Nothing in the demeanour of these witnesses gave cause to doubt their bona fides." Mr. Kaufman conceded that there was no such evidence in the present case from any of the defendant's witnesses, and added: "The evidence is to the contrary. In cross-examination, defence witnesses were asked, was the connection between the campaign and the dismissal union membership, membership of the federation. I do not shy sees Pot te ee Po ne pn ey arty orm 28. away from that, your Honour. That was a necessary connection because it was the only way in which the campaign could be countered but that did not make his membership of the federation fal reason for the termination. It does not detract from the fact, with respect, the reason for the termination was to combat the campaign." In conceding that the "evidence is to the contrary" doubtless Mr. Kaufman had in mind the evidence given in cross-examination by Mr. Downes, which is set out earlier, and the following evidence by Mr. Gilasson in cross-examination: "Mr. Glasson, you would agree, would you not, that in respect of the labourers who were not engaging in bans and who were terminated on the 14th, the only factor * connecting them with the bans was their Ilembership of the BLF?---No. The connecting factor was that they were employed as builders labourers. And members of the BLF?---That was also - yes, that was a factor." My. Kaufman's submission, quoted above, seemed to proceed on the basis that there was only one reason for the dismissal, namely "to combat the campaign". However, accepting that to be the reason underlying the defendant's decision to dismiss the prosecutor and all other members of the BLF employed by it, there is no evidence from any of the witnesses called by the defendant that the fact that the prosecutor was a member of the BLF at the time of his dismissal was not a substantial and operative factor in the defendant's ', C ' fy r + i *, t i t on TAS Ie 9 reasons for deciding to dismiss the prosecutor. None of the defendant's witnesses either said that or implied it. The absence of any such evidence is not surprising, having regard to Mr. Goodsall's evidence, quoted earlier, that the "express purpose" of the ultimatum of 12 February 1986 "was to have the claims for the 3.8 per cent and the shorter working week lifted" i.e. claims by the BLF on behalf of its members generally. In my opinion, on all the evidence it is clear that one of the substantial and operative reasons in the decision to dismiss the prosecutor was the fact that he was at that time a member of the BLF. it follows that the defendant has failed to satisfy me, on the balance of probabilities, that in dismissing the prosecutor on 14 February 1986 it was not actuated by the reason alleged in the charge, namely "by reason of the circumstance that the said Norman Martin was a member of" the BLF. Accordingly the defendant is convicted of the offence charged in the information laid by the prosecutor on 24 February 1986. The maximum penalty for the offence is $400. The only submission by the defendant's counsel as to penalty, either in his final address or in his reply to the prosecutor's final address (which had included a submission that the maximum penalty should be imposed), " a warren ne ene ree 30. was one that the evidence as to the defendant's attitude towards safety on site "cannot be taken to be an indication that the employers blithely ignored the law". I do not accept the prosecutor's submissions that the following matters are relevant to penalty:- (a) the length of the hearing in so far as it stemmed from the manner in which the defence was conducted; (b) the fact that there was no suggestion of any remorse on the part of the defendant; (c) the evidence as to the defendant's attitude towards safety; {d) the attitude towards standing down employees exhibited by Mr. Glasson - who is not, of course, an officer of the defendant. Nor do I take anto account, in a way adverse to the defendant, the fact that the decision to dismiss the prosecutor was a carefully considered one; of course, on the evidence, the defendant cannot contend by way of mitigation - and does not suggest - that it was made hastily and without full consideration. sey a ee 6 op Scan serena a ee ey 31. I have taken into account as matters in favour of the defendant the following: (1) there is no evidence of prior convictions of the defendant - either under the Act or under other legislation. (2) there is no evidence that the defendant has ever been found by a court to have committed a breach of the award or of any other award made either under the Act or under any other statute. (3) - the belief of Mr. Goodsall, as managing director of the defendant, (referred to earlier) that it was absolutely essential that the defendant, acting in a concerted and unanimous manner with the industry generally, should decide to dismiss all the members of the BLF employed by the defendant including the prosecutor. There is no evidence that the defendant - as distinct from the MBAV - ever sought any legal advice as to whether the proposed dismissal would be an offence against s. 5 of the Act. However, there is evidence that the proposed action was "considered" by the MBAV "in-house legal staff" and, further, that Mr. Glasson: Tat pe ' both? ' PTO ET ST Perit ee ne ee .. a ee Pom 32. "did in fact look at section 5, along with other sections of the Conciliation and Arbitration Act, as well as sections of the Teade Practices Act, and I concluded that the steps that were to be recommended, particularly against the background of the BLF campaigns, that the recommendations would not place our members, our member companies in breach of the law." He said that "that matter of legality or otherwise Cwas] discussed at the meeting of the 12th". In all the circumstances disclosed by the evidence, and in the light of the maximum penalty prescribed by Parliament (which amended the section - but no& the penalty - in 1981), in my opinion an appropriate penalty is $150. Section 5(5) of the Act provides:- "Where an employer has been convicted of an offence against this section the court by which the employer is 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 in a similar position." The prosecutor has sought an order in the following terms: "Reimbursement of wages lost by him from the time of dismissal on the 14th February 1986 until the date of re-employment on the 5th May 1986 as follows:- y wep oe t pO pn ye i pee ? oot tee ya me Cee on wre s ll week's (sic) wages less 2 days paid on the 14th February on termination; 2 week's (sic) pay paid on resumption of work; and 2 day's (sic) pay referable to two roster days off." Although the defendant opposed the claim, it agreed that, as a matter of arithmetic, the amount of "wages lost" was $2,796.20 if the court accepted the basis set out above. The defendant's counsel only addressed very briefly as to the question of "wages lost". He submitted that there should be deducted from the amount of "wages lost" (in the sense of wages not paid by the defendant) the amount of certain donations received by the prosecutor. He cited no authority in support of that proposition and in my view it is untenable. In Sutherland v Hills Industries Limited (1982) 2 IR 287 it was held that the amount of an employee's "wages Lost" should not be reduced by the amount of any social service payments received by the employee in respect of periods of unemployment (unless the employer was under a legal duty to repay the amount to the Department - a question which was not argued and was not decided in that case). ne Vane wee BO ne pe eee tee sont, ne to cree wes 34. He submitted that an order for the amount of wages lost should be limited to the period 14-28 February 1986, because of an offer of re-employment to commence on 28 February 1986, made to the other members of the BLF who had been dismissed on 14 February 1986. However, no such offer was made by the defendant to the prosecutor and I reject the submission, based upon certain words appearing in the prosecutor's diary, which is an exhibit in these proceedings, that the prosecutor knew that he could have accepted the defendant's offer of re-employment - even though it had only been made to the other BLF members. The defendant's witnesses said that the failure to make such an offer was due to a "clerical error" but admitted that the prosecutor was excluded from a meeting, calied by the defendant, of members of the BLF who had been dismissed on 14 February 1986, which meeting was for the purpose of discussing their re-employment by the defendant in March 1986. Further, that a later offer of re-employment, made by the defendant to the other BLF members, was deliberately not made to the prosecutor on the same day. On the evidence, Mr. Martin was made an offer on 17 April 1986 which required him to decide by 18 April 1986 whether he would accept re-employment and he, in fact, did not accept. Although the time given to him to decide was short, the prosecutor knew at that time that cc XX Peon ee, Pn ee 35. the registration of the BLF had been cancelled and knew that the other members of the BLF dismissed by the defendant had accepted re-employment. Miss Hickey's submissions on this aspect raised the question of whether certain regulations were available to the prosecutor at that time; those regulations were not put in evidence but apparently related to the allocation, to other registered organizations of employees, of work previously performed by members of the BLF. Notwithstanding that submission, in my opinion it would not be a proper exercise of the court's discretion to order that the prosecutor be reimbursed, as "wages lost by him" within the meaning of s. 58(5) of the Act, an amount relating to the period after 18 April 1986. Accordingly, in my opinion an order should be made that the prosecutor be re-imbursed the wages lost by him for the period from his dismissal on 14 February 1986 until 18 April 1986, but deducting the amounts which his application concedes should be deducted. The parties' agreement as to figures did not relate to that period but it would seem unlikely that there will be any dispute as to the appropriate amount. However liberty will be reserved to the prosecutor to apply in respect of that matter. I ce.ti'y that this and the Enirty four precediiz poges are a true copy of the Reasons for Judgment verein of the Honourable Mr. Justice Keely, Dated: 30 Tune 14% Associate (hwy wv¥ z eer eee ve we rg eg perp time