CATCHWOPDS Industrial law - aunformation far offenc - dasmissal of T employee member of registered organization - part of industry wide dismissal of all members to counter industrial campaign by union - whether dismissal "by reason of the circumstance" that employee was union member - discretionary power to order reinstatement - whether qood reason not to order reinstatement - Likelthood of industrial action if reinstated - likelihood of peinstatement leading to dismissal of amployees with longer service - effect of prosecutor' ul refusing offer of yve-employment - reimbursement of wages last. Conciliation and Arbitration Act 1204 ss. S(1), 3(4), 515) Trade Practices Act 19574 5. 45E Bowling v GMH (1980) 33 ALR 297 Roberts v Murlar Pty. Ltd. unreported Evatt J. 5/5/86 28 JUL 1986 | PEE P2IAaP waicistay "a IN THE FEDERAL COURT OF AUSTRALIA VICTORIAN DISTRICT REGISTRY INDUSTRIAL DIVISION we wwe ee Pr) ct << [any ch Fn ay Ww iva} a BETWEEN STEVEN BRADFOFD Prosecutar PRENTICE BULLDERS PITY. L Defendant KEELY J. 24 JULY, 1986 MELBOURNE MINUTES OF ORDER THE COURT ORDERS THAT Prentice Builders Pty. Ltd. 185 convicted of dismissing Steven Bradford on 14 February 1386 by reason of the circumstance that he was a member of the Australian Building Construction Employees and Builders Labourers Faderation. Prentice Builders Pty. Ltd. shall pay a penalty of $150.00. td 3. The defendant, Frentice Lo Steven Bradford ths sum (Sattlement and Entry of Orders the Federal Court Rules} L3 dealt with in Order 36 of eae ee ne Se nee IN THE FEDERAL COURT OF AUSTRALIA VICTORIAN DISTRICT REGISTRY No. VB of 1986 INDUSTRIAL DIVISION BETWEEN STEVEN BRADFORD Prosecutor AND: PRENTICE BUILDERS PTY. LTD. Defendant 24 JULY, 1936. KEELY J. REASONS FOR JUDGMENT Steven Bradford (the prosecutor) on 24 February 1986 laid an information under s. 5 of the Conciliation and Arbitration Act 1904 (the Act) against Prentice Builders Pty. Ltd. {the defendant) alleging that on 14 February 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 defendant pleaded not guilty. Miss Hickey, of counsel, appeared for the prosecutor and Mr. Les Kaufman, of counsel, for the defendant; they had also appeared for the prosecutor and the defendant respectively in matter V6 of 1986, in which this court ere oat . ey St ae oe eee <aiarmeeiad aoa oe ope wpa tener ae delivered judgment on 30 June 1986, convicting Lewis Construction Company Pty. Ltd. of dismissing an employee, Mr. Martin, by reason of the circumstance that he was a member of the BLF. Counsel informed the court that they had had discussions as to the manner in which the hearing of the present matter could be expedited by the use of evidence tendered before the court in matter V6 of 1986; agreement had been reached between them that there be put in evidence in the present matter, by consent, evidence which fell into two categories. First, a large number of documentary exhibits, which had heen received in evidence in matter V6 of 19386 were tendered, mainly by the defendant; both counsel agreed that those documents were to be "part of the evidence in the case as fully as if they were separately tendered and properly proved by a witness". Second, the defendant tendered the transcript of the whole of the evidence given by Mr. Glasson and by Mr. Wallace in matter V6 of 1986; that transcript was agreed by both counsel to be an accurate record of that evidence and of all objections to, and rulings upon, the admissibility of parts of that evidence. The evidence has satisfied me beyond reasonable doubt that (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 weer os a 3. Geelong Grammar building site (the site) from June 1985 until February 13586. (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 the time when he gave evidence and had been since 1931. (6) throughout the course of its employment of the prosecutor the defendant believed that the prosecutor was a member of the BLF. (7) the defendant was at all material times a member of the Master Builders' Association of Victoria (MBAV), an organization of employers registered under ths Act. At or about the same time on14 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 at all material times the defendant - and the employers on sites in the building industry in Victoria generally - required each employee to be a member of an appropriate union and that, by reason of that policy of the employers, which was cryptically called "no ticket no start", all builders labourers at the site employed by the defendant were members of the BLF. The prosecutor was an elected shop steward at the site. 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 intent 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 intent." The onus placed upon the defendant 15 an onus to da 30 upon the balance of probabilities. John Raymond Yates, the managing director of the defendant, gave evidence that it was his decision, on 13 February 1986, to diamiss, on the following day, all members of the BLF on all sites of the defendant in the Melbourne metropolitan area and in Geelong. He said that the reason for that decision was "to attempt to overcome the problem we had with bans". In early February 1986, shortly before the decision to dismiss the prosecutor, there were no bans by the BLF on work at the site, but Mr. Yates believed that there were BLF bans at the Gordon Institute of Technology in relaticn to a BLF claim on the defendant for the payment of a wage increase of 3.8 per cent. Mr. Yates attended meetings at the MBAV in February 1986, including "strategy meetings" and a meeting on 12 February 1986 addressed by Mr. dohn Glasson. Mr. Yates, on behalf of the defendant, "voted to go along with the resolution" of the MBAV on 12 February 1986. 3 oes sp - eos "et er ds ee 2 ui Mr. Yates said "... as I said before it was because of the BLF campaign that we were forced to sack our labourers". The MBAV resolution, for which Mr. Yates voted, adopted a recommendation which was put to the meeting by Mr. Glasson, who had been the industrial relations manager of the MBAV for approximately three years and had been its director of industrial relations for several months before giving evidence. During his evidence (given in matter V6 of 1986 and put in evidence in this case as stated earlier) Mr. Glasson said that the ultimatum decided upon by the MBAV on 12 February 1986 was "the only practical course open to the member companies". He was cross-examined by Miss Hickey as to the possibility of the MBAV taking deregistration proceedings against the BLF. He advanced no reason as to why hearings of applications seeking deregistration of the BLF, conducted in 1974, 1982-1984 and 1385 respectively, should have taken such a long time. Those hearings seem to have taken far longer than was necessary, apparently because of the way in which the applicants chose to conduct their cases - not because of any weakness in the remedies provided by the legislation (see reasons for judgment in matter V6 of 1986, Martin v Lewis Construction Company Pty. Ltd.). r- we ae oan Se a i } i ) 6. However, I accept that neither Mr. Yates nor Mr. Glasson, on 12 February 1986 could have reasonably expected to obtain an urgent hearing of any application that might have been made to the Federal Court for deregistration of the BLF, having regard to the fact that the hearing then proceeding before the Arbitration Commission had already been on foot since October 1985. I accept that Mr. Glasson believed that the course followed by the MBAV and its members was "the only practical course open" to it and them in the circumstances and that Mr. Yates had a similar belief (cf. evidence quoted earlier that "we were forced to sack our labourers"). In saying that IT am, of course, dealing with their beliefs and am not saying that no other course of action was, in fact, open. In any event, the absence of any other "practical course" does not remove the prohibition contained in s. 5 of the Act. Mr. Glasson's ewidence included the following passage 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 membership of the BLF?---No. The connecting factor was that they were employed as builders labourers. And members of the BLF?---That was alsa - yes, that was a factor." The evidence of Mr. Yakes, referred to earlier, that the decision to dismiss all BLF members, including the prosecutor, was an "attempt to overcome the problem we had with bans", doubtless gave the reason underlying the defendant's decision to dismiss the prosecutor. However, 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 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 must be considered in the light of the answers given by Mr. Yates in the following passages in cross-examination: "Mr. Yates, as I understood you in evidence, the reason you made that decision had to do with a 3.8 per cent campaign by the federation; is that right?---Yes. And the bans imposed in support of that Campaign; is that right?-~--Yes. I understood you correctly?---Yes. You would agree with me, would you not, Mr. Yates, that at the time you made your decision the only thing connecting the labourers on the Geelong Grammar site with those bans was their membership of the federation?--—-Yes. That must mean, must not it, Mr. Yates, that those labourers were terminated because of their membership of the federation. ; co The answer is no, it was because of the campaign by the BLF. Miss Hickey: Mr. Yates, you have already agreed with me that the only thing connecting the labourers oan that site with the bans was their membership of the federation?---Yas. That must mean, must not it, Mr. Yates, that the only reason those labourers were sacked was because of their membership of the federation?---No. You must agree, must not you, Mr. Yates, that it certainly was one of the reasons? Mr. Kaufman: With respect, your Honour, I wish to object to this line of questioning." The objection was that "the form of the question ... amounts to a harrassment of the witness" and that it "imposes an unfair form of intimidation on the witness". The objection was rejected. The cross-examination continued:- "You must therefore agree, must mot you, Mr. Yates, that the reason those labourers were sacked on the 14th was because of their Membership of the federation?---No, as I said before, it was because of the BLF campaign that we were forced to sack our labourers. T understand that, Mr. Yates, and you have agreed with me that the only thing connecting the labourers on that site with that campaign was their membership of the federation?---Yes. So you say the campaign was a reason for sacking the labourers?---The campaign was the reason. And the thing that linked the labourers with that campaign was their membership; that was the only thing?---I guess you are right. wD And that must mean, must mot it, that their membership was one of the reasons they were sacked?---It would be one of the reasons, yes. Had they not been members of the federation they would not have been sacked?---That is right. There would have been no point?-~-Right." The only employees dismissed on that day by the defendant were members of the BLF and the following evidence was given by Mr. Yates, in answer to a question by the court:- "But in each case, in deciding who was to be sacked, you had to look at the question, is he a member of the BLF or not?---Yes." In his final address, Mr. Kaufman relied upon the submissions he had put for the defendant in Martin v Lewis Construction Company Pty. Ltd. (matter V6 of 1986). However on all the evidence I find that one of the substantial and operative reasons for the decision to dismiss the prosecutor was the fact that he was at that time a member of the BLF. The defendant has failed to satisfy the court, 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 Steven Bradford was a member cf" the BLF; the defendant is convicted of the offence charged in the information laid by the prosecutor on 24 February 1986. ay Roe oe - oat The defendant's counsel did not make any submission as to penalty. In considering that matter I have taken into account the overall picture disclosed hy the evidence, including Mr. Yates' evidence that the defendant was "forced to sack our labourers". I have also taken into account the fact that there is no evidence that the defendant has any prior convictions - either under the Act or under other legislation or 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. Ik may be added that 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. In all the circumstances disclosed by the evidence, and in the light of the maximum penalty of $400 prescribed by Parliament, 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 ina similar position." sere sores tp tie il. The prosecutor sought both an order that he be reinstated in his old positicn and an order for wages lost. As to the claim For reinstatement, Mr. Kaufman, in addition to putting separate submissions in this case, adopted certain general submissions put by him for the defendant in Kearrin v Leighton Contractors Pty. Ltd. (matter V7 of 1986), in which matter reasons for judgment were delivered today. Those submissions fail, for the reasons there given, with a qualification as to the third submission on that matter i.e. the likelihood of industrial action. In the present case there is, of course, a greater likelihood of the defendant facing industrial action on the site following upon a refusal by the prosecutor to join the Building Workers' Industrial Union of Australia (BWIU) - he having said in evidence that he was not prepared to join the BWIU. Even so, it should not be assumed that the prosecutor, after receiving advice and reconsidering his position, would refuse to join that union at the time of an offer of re-employment. As stated in the reasons for judgment in Kerrin's case, there is a more fundamental reason why that submission must fail. In my opinion it would not be a proper exercise of the court's discretion, in circumstances where it would otherwise order the reinstatement of the prosecutor, for it to vefrain from making such an order because of the likelihood of any such industrial action. Ll' oy EE pm en ne ee nee ee ap tec Sa Turning to Mr. Kaufman's other submissions, he submitted that: ~.. an order for reinstatement by your Honour would place my client in an invidious position, it is submitted. He will not know what to do whichever way he turns. He might face unpleasant consequences. He might find himself at the end of industrial relations action on the one hand or he might find himself on the end of a writ on the other hand. That is something your Honour ought to take into account when considering reinstatement." For reasons analogous to those given in dealing with the possibility of industrial action, it would not be proper for the court, in my opinion, to refrain from making such an order because of the possibility of the defendant acting in such a way that proceedings are taken against it under s. 45E of the Trade Practices Act 1974, (See Roberts v Murlar Pty. Ltd. and ors. - unreported decision of Evatt J. delivered 5 May 1986). The defendant also submitted that reinstatement should be refused because of certain matters relating to Mr. Bradford's conduct as an employee. There are various reasons why that submission must also fail. First, I accept Miss Hickey's submission that, in exercising its discretion as to reinstatement, the court should not approach the question in the manner in which a re 13. potential employer would @.g. considering whether the prosecutor would be likely to be a satisfactory employee. Second, most of the matters relied upon relate to alleged unsatisfactory conduct at a time before the defendant, in November 1985, gave the prosecutor a formal warning (at the direction of its managing director, Mr. Yates) that, if his work performance, including his attendances at work, did not improve, he would be dismissed, but he was not dismissed in the weeks of employment between that time and 14 February 1986. Third, the evidence of alleged unsatisfactory conduct after that formal warning in November 1985 was itself very unsatisfactory. Allied to this matter was a submission that the prosecutor should not be reinstated because he had heen initially "forced on to the company" by the BLF. However, the evidence shows that the company, after considering the Matter at the highest level, decided to employ the prosecutor and to transfer another builder's labourer to another = site. In my opinion it would not be proper to take that matter into account in considering the question of reinstatement. It was also submitted that the application should be refused because an order for reinstatement would result in the defendant having to dismiss an employee who had longer service with the company and whom the defendant regarded as Deing a more satisfactory employee. In my opinion the woes te eet pee 14. principles expressed by the Full Court in Bowling's case are not consonant with the couct taking into account, as a factor relevant to the exercise of its discretion, the fact that the defendant considered an existing employee to be more satisfactory. If that opinion is wrong and that matter could be relevant, then, in the circumstances of this case, I would attach no weight to it. The need to terminate an employee with longer service in my opinion could he a relevant matter; 16 would normally be of little weight although circumstances relating to that employee might make it of greater weight. In the context of this case I give it no weight. Mr. Kaufman said that he was not aware of any authorities expressing the opinion that the court should not order reinstatement if compliance with such an order would result in the dismissal of another employee. It should be added that Mr. Yates' evidence as to the need to dismiss an employee with longer service is accepted, notwithstanding Miss Hickey's criticism of that evidence and her submission that other evidence for the defendant was inconsistent. The defendant's submissions as to reinstatement which have been referred ta so far do not in my opinion afford any reason for refusing to order the reinstatement of the prosecutor. Kk i ——— ee ee 15. A question arises as to whether it would be a_ proper exercise of the court's discretion to order the defendant to reinstate the prosecutor, having regard to the defendant's offer, made on 27 February 1986 to its builders' labourers, including the prosecutor, that they resume employment on 28 February 1986. That offer was made after the prosecutor had instituted these proceedings. The Bowling case principle is that, upon conviction of the employer, prima facie the dismissed employee should be reinstated. That principle cannot apply to an employee who has already resumed his employment with the defendant (as had Mr. Martin in matter V6 of 1986), nor should the principle, in my opinion, apply to one who has been offered re-employment and has rejected that offer, where the terms of employment offered were no less favourable to the employee than those upon which he was employed immediately before his dismissal. Tk was not suggested by Miss Hickey, om behalf of the prosecutor, that the offer made by the defendant to the prosecutor was a spurious one. Miss Hickey submitted that there was "... a doubt that Cthe prosecutor] would have actually been engaged if he had actually gone to the site on the 28th". That submission was based upon evidence given by Mr. Yates in re-examination which was as follows:- "Why was he offered re-employment?---Our foreman offered him employment. It was not I 16. at my direction. Io was mot under the impression that he was offered his job back because I really did not want him back after what had previously been discussed about him ° and it would appear that Mr. Goodwin felt in his own mind that he ought to treat people equally and he made contact with Mr. Bradford personally without my knowledge." That evidence is somewhat curious having regard to his evidence in chief which included the following passages:- "Me. Yates, was an offer made subsequently ta builders labourers to resume work?---Yes, it was. There was an offer made. "His Honour: Mr. Yates, the offer of work, are you able to tell me who made the Gecision to offer work and what were the terms of the offer?---Yes, I made the decision. The terms were that the labourers would return to site with no pay for lost time, that they would conform with the awards, or the award, as far as the labourers were concerned - in particular, to disputes settling procedures, and that there was no 3.8 per cent." There is no suggestion in that evidence-in-chief that the prosecutor had been excluded by the defendant from its offer of re-employment; the evidence in re-examination (quoted earlier) may have been designed to rebut a possible argument, (based upon the fact that he had been offered re-employment by the defendant) that the prosecutor must have been a satisfactory employee - which Mr. Yates elsewhere denied. On the evidence I find that the prosecutor was offered re-employment by the defendant and that if he had accepted Se wed na ad nae eee ee ee oe — > 17. that offer he would have been able to recommence work at the site on 28 February 1996. Miss Hickey suggested that his return to work might well have been short-lived but any such suggestion is necessarily a matter of speculation and not a matter proper to be taken into account. I do not consider that it affects the correct analysis of the situation as it existed on 27-28 February 1986 - given that it has bean accepted, correctly in my view, that the dafendant's offer to the prosecutor was not a "spurious one". Miss Hickey submitted that if an offer is made by an employer "in terms of his own making and if objectively they are calculated to lead tao the rejection of the offer hy the person to whom it is put" then, if that offer led the court to refuse to reinstate the employee who had been dismissed, the result would be to enable the defendant "to rid itself of an employee and Cbenefitd from that offence", contrary to the principles expressed by the Full Court in Bowling's case. It was explained later that the word "calculated" in that submission was mot intended to convey that the offer was designed to be a spurious one; the submission referred ta an offer which, viewed objectively, was likely to lead to the rejection of the offer by the person to whom it was made. ae we 18. In my Opinion the principle suggested by Miss Wickey is not a correct one unless it is limited tc offers of employment on terms less favourable to the employee than those upon which he was employed immediately before his dismissal. The position would, of course, be different if the offer were not made bona fide and was made in such a way or in such circumstances that it could be inferred that the employer was simply seeking to circumvent the plain intention of the Act. In the absence of such an intention, in my opinion it is not to the point that someone, looking at the matter objectively, would reach the conclusion that the offer was likely to be rejected by the person in question; for example, such an objective observer might consider that a shop steward for the BLF was likely to reject the offer of re-employment made to him - particularly if he had attended a meeting which had been addressed by Mr. Wallace, a member of the Federal management committee of the BLF and had heen "told" to reject the offer because the employers were weakening and were likely to make a better offer in the future. Even if, in those circumstances, it was likely that the prosecutor would reject the offer, in my opinion it does not assist the prosecutor in asking the court to order his reinstatement. Tf ait were appropriate, in viewing the matter objectively, to consider whether it was reasonable for the prosecutor to reject the offer then it would be necessary to 19. take into account the fact that the other members of the BLF on the site resumed work for the defendant on 28 February 1986; also to consider the following evidence by Mr. Yates when he was asked as to the response by the defendant's builders labourers to the offer:~ no uniform response. Some to work on the 28th; One or two "Ves, there was of our sites returned some partially returned to work. did not return at all. One or two labourers?---Sites"" For these reasons, although almost all of the submissions advanced by the defendant on the question of reinstatement have failed, in my opinion the court should not order the reinstatement of the prosecutor. The prosecutor also sought an order for wages lost from the date of his dismissal until the date of the court's order. For reasons analogous to those given in dealing with the question of reinstatement, in my opinion the prosecutor is only entitled to an order for wages lost in respect of the period between the dismissal and the time for his re-employment in accordance with the defendant's offer. After that date the loss of wages was due to the prosecutor's refusal of re-employment. The amount of the wages lost was agreed by counsel for the parties as being $477.22. I certify that this and the eighteen preceding pages are a true copy of the Reasons for Judgment herein of the Honourable Mr. Justice Keely Associa Deed: 24 Tuly 1486 {anyone oe aa