- ra CATCHWORDS INDUSTRIAL LAW - whether employees dismissed because of membership of an organization - dismissals seen as only means of countering conduct of organization - whether membership of organization a 'substantial and operative factor' in decision to dismiss - relevance of initial refusal of offers of re-employment in exercise of discretion regarding reinstatement of dismissed employees. Conciliation and Arbitration Act 1904 s.5 General Motors Holden Pty Ltd v Bowling (1976) 51 ALJR 235 Heidt v Chrysler Australia Ltd (1976) 26 FLR 257 Lewis Construction Company Pty 'Ltd v Norman Martin No. V21 of 1986 Leighton Contractors Pty Ltd v David Kerrin No. V28 of 1986 Prentice Builders Ltd v Steven Keith Bradford No. V35 of 1986 Hooker Cockram Limited v Robert Hugh Myles No. V36 of 1986 Steven Keith Bradford v Prentice Builders Ltd No. V41 of 1986 Robert Hugh Myles v Hooker Cockram Limited No. V42 of 1986 Woodward, Jenkinson and Gray JJ Melbourne 24 December 1986 IN THE FEDERAL COURT OF AUSTRALIA Nos. V21 of 1986 ) VICTORIA DISTRICT REGISTRY ) V28 of 1986 INDUSTRIAL DIVISION ) V35 of 1986 V36 of 1986 V4l of 1986 V42 of 1986 ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA BETWEEN: LEWIS CONSTRUCTION COMPANY PTY LTD Appellant AND: NORMAN MARTIN Respondent BETWEEN: LEIGHTON CONTRACTORS PTY LTD Appellant AND: DAVID KERRIN Respondent BETWEEN: PRENTICE BUILDERS LTD Appellant AND: STEVEN KEITH BRADFORD Respondent BETWEEN: HOOKER COCKRAM LIMITED Appellant AND: ROBERT HUGH MYLES Respondent ow , i BETWEEN: STEVEN KEITH BRADFORD Appellant AND: PRENTICE BUILDERS LTD Respondent 2 BETWEEN: ROBERT HUGH MYLES Appellant AND: HOOKER COCKRAM LIMITED Respondent MINUTES OF ORDER JUDGES: Woodward, Jenkinson and Gray JJ. PLACE: Melbourne DATE: 24 December 1986 THE COURT ORDERS THAT: In each case, the appeal be dismissed. (Note: Settlement and entry of orders is dealt with in 0.36 the Federal Court Rules.) of IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY INDUSTRIAL DIVISTON Nos. V21 of 1986 V28 of 1986 V35 of 1986 V36 of 1986 V41 of 1986 V42 of 1986 ON APPEAL FROM THE FEDERAL COURT OF AUSTRALTA BETWEEN AND: LEWIS CONSTRUCTION COMPANY PTY LTD Appellant NORMAN MARTIN BETWEEN : BETWEEN: Respondent LETGHTON CONTRACTORS PTY LTD Appellant DAVID KERRIN Respondent PRENTICE BUILDERS LTD Appellant STEVEN KEITH BRADFORD Respondent HOOKER COCKRAM LIMITED Appellant ROBERT HUGH MYLES Respondent BETWEEN: STEVEN KEITH BRADFORD Appellant AND: PRENTICE BUILDERS LTD Respondent BETWEEN: ROBERT HUGH MYLES Appellant AND: HOOKER COCKRAM LIMITED Respondent JUDGES: Woodward, Jenkinson and Gray JJ. PLACE: Melbourne DATE: 24 December 1986 REASONS FOR JUDGMENT WOODWARD J In these matters I have had the advantage of reading the draft reasons for judgment of Gray J. I agree with him that each appeal should be dismissed, for the reasons which he has stated. I certify that this and the preceding page is a true and accurate copy of the Reasons for Judgment herein of The Hon Mr Justice Woodward pn. Associate Dated: 24 December 1986 IN THE FEDERAL COURT OF AUSTRALIA ) Nos. V21 of 1986 VICTORIA DISTRICT REGISTRY ) V28 of 1986 INDUSTRIAL DIVISTON ) V35 of 1986 V36 of 1996 V4l of 1986 V42 of 1986 = ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA BETWEEN: LEWIS CONSTRUCTION COMPANY PTY. LTD. Appellant E NORMAN MARTIN Respondent BETWEEN LEIGHTON CONTRACTORS PTY. LTD. Appellant E DAVID KERRIN Respondent BETWEEN: PRENTICE BUILDERS LTD. Appellant E STEVEN KEITH BRADFORD Respondent BETWEEN: HOOKER COCKRAM LIMITED Appellant AND: ROBERT HUGH MYLES Respondent BETWEEN: STEVEN KEITH BRADFORD Appellant AND: PRENTICE BUILDERS LTD. Respondent - BETWEEN: ROBERT HUGH MYLES Appellant AND: HOOKER COCKRAM LIMITED Respondent CORAM: Woodward, Jenkinson and Gray Jd. PLACE: Melbourne DATE: 24 December, 1986 REASONS FOR JUDGMENT JENKINSON J. I agree that each appeal should be dismissed, for the reasons stated by Gray J. I certify that this and the preceding page 1s a true copy of the Reasons for Judgment herein of the Honourable Mr. Justice JENKINSON. B. N00 pr Associate Dated: 24 December, 1986 IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY z is) i] < tJ ran INDUSTRIAL DIVISION ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA BETWEEN: LEWIS CONSTRUCTION COMPANY FIY. LTD. Appellant AND NORMAN MARTIN Respondent BETWEEN: LEIGHTON CONTRACTORS PIY. LTD. Appellant AND DAVID KERRIN Respondent BETWEEN: PRENTICE BUILDERS LTD. Appellant AND STEVEN KEITH BRADFORD Respondent BETWEEN: HOOKER COCKRAM LIMITED Appellant . AND ROBERT HUGH MYLES Respondent BETWEEN: STEVEN KEITH BRADFORD Appellant AND PRENTICE BUILDERS LTD. Respondent BETWEEN: ROBERT HUGH MYLES Appellant AND HOOKER _ COCKRAM LIMITED Respondent CORAM: WOODWARD, JENKINSON, & GRAY JJ. DATE: 24TH DECEMBER 1986 REASONS FOR JUDGMENT GRAY J.: On 10th, 11th and 12th November 1986, the Court heard Six appeals from four judgments of Keely J. In each case, Keely Jd. had convicted the defendant before him of an offence against 5s. 5(1)(a) of the Conciliation and Arbitration Act 1904 ("the ~3- Act"), and had made certain consequential orders. Each of the four defendants appealed against conviction and against consequential orders. In two of the cases, the prosecutors appealed against the refusal to make further consequential orders. Section 5(1)(a) of the Act provides, 50 far as 15 relevant: "5(1) An employer shall not dismiss an employee...by reason of the circumstance that the employee- (a) is...Cal member of an organization..." The word "organization" is defined in s. 4(1) of the Act as meaning any organization registered pursuant to the Act. The provisions of sub-ss. (4) and (5) of s. 5 of the Act are also relevant; they are as follows: "5(4) 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. 5(5) Where an employer has been convicted of an offence against this section the court by which the employer 1S convicted may order that the employee be reimbursed any wages lost by him and may also direct that the employee be reinstated in his old position or in a similar position." At the hearing of the appeals, Mr. McDonaid Q.C. and Mr. L. Kaufman appeared as counsel for Lewis Constructions Pty. Ltd. ("Lewis"), Prentice Builders Pty. Ltd. ("Prentice") and ~4- Hooker Cockram Pty. Ltd. ("Hooker Cockram"), Mr. Vickery of counsel appeared for Leighton Contractors Pty. Ltd. ("Leighton"), and Miss Hickey of counsel appeared for Messrs. Martin, Kerrin, Bradford and Myles. ~ It 1S convenient to deal with the appeals affecting the four employers separately, as the facts of the cases differed slightly. Lewis Constructions Pty. Ltd. v. Martin The charge against Lewis was that on 24th February 1986 it dismissed Mr. Martin by reason of the circumstance that he was a member of the Australian Building Construction Employees and Builders Labourers Federation ("the B.L.F."). On 30th June 1986, Lewis was convicted of this offence. Subsequently, the learned trial judge ordered pursuant to s. 5(5} of the Act that Lewis pay to Mr. Martin the wages lost by him for the period from 14th February 1986 until 18th April 1986, less an amount equivalent to two weeks waqes., The learned trial judge was satisfied beyond reasonable doubt of the following facts: "(C1L) 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 - 5 - prosecutor the defendant believed that the prosecutor was a member of the BLF." None of these findings was the subject of challenge on appeal. Instead, the argument on behalf of Lewis was that his Honour should have found that Lewis had discharged the onus upon it of proving that, 1n dismissing Mr. Martin, it was not actuated by the fact that he was a member of the B.L.F. Counsel for Lewis accepted, and this Court is bound to hold, that an offence was committed if Mr. Martin's membership of the B.L.F. was a "substantial and operative factor" ain the decision to dismiss him. See General Motors-Holden''s Pty. Ltd. v. Bowling (1376) 51 A.L.J.R. 235, at pages 241 and 242 per Mason J., with whom Stephen and Jacobs JJ. concurred. The argument on behalf of Lewis was that the learned trial judge had found that the relevant officers of Lewis believed that dismissal of all members of the B.L.F. employed by Lewis was the only course open to it as a means of countering a campaign or campaigns then being conducted by the B.L.F. Because of this finding, the fact that Mr. Martin was a member of the B.L.F. dad not amount to a reason why he was dismissed; membership of the B.L.F. was no more than the criterion for selection of those who were being dismissed. The evidence disclosed that the B.L.F. had a history of conducting campaigns by means of its members imposing bans on the performance of certain tasks on certain building sites. These bans caused considerable disruption to building on those sites where they were in force. The object of the bans was to force -6- the employers on those sites to accede to the demands made by the B.L.F. in respect of the terms and conditions of employment of 1ts members. Once some employers conceded, it was thought to he more difficult for other employers to hold out against similar demands, with the actuality or possibility of the imposition of bans on other sites. The relevant campaigns of the B.L.F. were in support of payment to 1ts members of a 3.8% increase in wages, which had resulted from a national wage case, but which the Australian Conerliation and Arbitration Commission had refused to award to the B.L.F. because of its refusal to give to the Commission undertakings which were required of those organizations whose members received the increase, and in support of a reduction of ordinary working hours to 35 or 36 per week, or to a nine day fortnight. These campaigns had been conducted for some months prior to 14th February 1986. In late 1985, some bans had been imposed by B.L.F. members at various building sites. As a result of a meeting of representatives of a number of building employers, under the auspices of the Master Builders' Association of Victoria ("the M.B.A.V."), an ultimatum had been delivered to the B.L.F., to the effect that 1ts members would be dismissed from their employment by builders unless the bans were lifted. On that occasion, the bans were lifted. They were re-imposed on certain building sites early in 1986. As a consequence, on 12th February 1986, a further meeting took place at the offices of the M.B.A.V. The meeting was attended by representatives of a number of building employers, including Lewis. It was resolved that a further ultimatum, similar to that previously delivered, should be given to the B.L.F. As a consequence, on 12th February 1986, a telegram was sent to the B.L.F. warning that if bans which were -7- then currently in force were not lifted by 12 noon on 13th February 1986, all B.L.F. members employed on building sites in Victoria would be dismissed from their employment. The bans were not lifted by the required time. In consequence, a number of employees, who were members of the B.L.F., were dismissed from their employment by building employers in Victoria. One of these was Mr. Martin. There was no relevant ban in force on the site at which Mr. Martin was employed. The learned trial judge did make a finding that Lewis "in fact believed that dismissal of all members of the BLF was the only course open to it as a means of countering the SLF campaign." This finding was not the subject of any challenge on appeal. Counsel for Lewis invited the Court to hold that this was the "real" reason for the dismissal, and that it could not therefore be said that Mr. Martin's membership of the B.L.F. was a reason. There are two major flaws in this argument. In the first place, there is no inconsistency between the presence of a perceived need to dismiss B.L.F. members in order to counteract a B.L.F. campaign as a reason for dismissal, and the existence of other reasons for that dismissal. The search for the "real" reason for a dismissal 1s not one sanctioned by the authorities. The reference in General Motors-Holden's Pty. Ltd. v. Bowling (1976) 51 A.L.J.R. 235, at page 241 to "the real reason for the dismissal" is to be read in the context of a case in which the court at first instance had rejected the express evidence of an employer as to the reasons for dismissing a shop steward, and the employer then sought to - 38 - advance on appeal another reason as being the sole operative factor in the decision. It 15 not to be thought that, in each case, there will only be one "real" reason for a dec2zsion to dismiss an employee. As Mason J. said in Bowling, at page 242: "It was suggested that even if the appellant's Management had regard to the respondent's position as a shop steward in dismissing him, that was not enough to bring the case within s5.5(1)(a). The short answer to this suggestion is that s.5(1) does not proscribe the circumstances which it lists as the scle or predominant reasons for dismissal. It is sufficient if the circumstance 1s a substantial and operative factor. And at does not cease to be such a factor because it 15s coupled with other circumstances or because regard is had to it in association with other circumstances not mentioned in the section." In the present case, the learned trial judge clearly recognized that there could be more than one reason for a dismissal when he Said: "Mr. Kaufman's submission...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 reasons for deciding to dismiss the prosecutor." In failing to lead any evidence to support the proposition that Mr. Martin's membership of the 8.L.F. was not a substantial and operative factor in the decision to dismiss him from his employment, Lewis failed to exclude that reason as such a substantial and operative factor, and therefore failed to discharge the onus of proof imposed upon it by s. 5(4) of the Act. The attempt to characterise Mr. Martin's membership of the - 9 - B.L.F. as a factor in a reason, rather than a reason in itself, Must also fail. The Act and the authorities do not distinguish between a "reason" anda "factor"; indeed, ain Bowling, these terms are used interchangeably. The attempt to decide whether a Particular circumstance was a factor ina reason, or a reason itself, tends to distract from the essential question, which is whether that circumstance was a substantial and operative factor or reason in the decision. The second flaw in the argument put on behalf of Lewis lies in the nature of the "real" reason advanced itself. An essential step in the reasoning which led to the decision to dismiss B.L.F. members was the fact of their membership. The only way in which Lewis could retaliate effectively against the B.L.F.'s campaigns, as it saw the position, was by dismissing all of the members of the B.L.F. whom it employed. No employees who were not members of the B.L.F. were dismissed. Mr. Martin was not dismissed because of any conduct of his, but purely hecause he was a member of an organization against which Lewis had decided to retaliate. This case is, in substance, no different from the very sort of case for which s. 5(1)(a) was designed, namely the case in which an employer, in order to protect itself from claims or demands made by a registered organization, dismisses the members of that organization in its employ. Such conduct is prohibited by the Act, without regard to the reasons for which the employer dislikes the particular organization, or even the nature of that organization's conduct which has produced the dislike. The very reason advanced by Lewis as the reason for the dismissal, therefore, carries with it the conclusion that - 10 - Lewis was properly convicted. Lewis also appealed against the decision of the learned trial Judge pursuant tos. 5(5) of the Act, to order that Mr. Martin be reimbursed wages lost by him between 14th February 1986 and 18th April 1986, less an amount which, it was agreed, had been paid to him representing the two weeks between 14th and 28th February 1986. There was evidence that Lewis made an offer to the other B.L.F. members who had been employed by 1t on the South Eastern Medical Complex site, and had been dismissed on 14th February 1986, to return to work on that site on 28th February 1986. That offer was not made to Mr. Martin. There was evidence that he had not been singled out, but had simply been overlooked when the offer was made. There was also evidence that he was aware of the offer to other members of the B.L.F., and participated in a meeting at or near the site on Z8th February, and in conveying to the management of Lewis at the site the decision of the B.L.F. members not to resume employment. It was put by counsel for Lewis that Mr. Martin was sufficiently aware of the offer to have known that he could have returned to work on 28th February 1986. The fact is, however, that the offer was not made to him; it was therefore incapable of acceptance by him. The factual basis for Lew1s's argument on the appeal therefore did not exist. In any event, 1t should be pointed out that the decision of the learned trial judge on this aspect of the case was the exercise of a discretion. Even if 1t would have been open to Mr. Martin to return to work on 28th February 1986, 1t was not shown that the exercise of the discretion to order that he be reimbursed for lost wages up until the time when he did - ll - return to work for Lewis miscarried. For these reasons, the appeal by Lewis must fail. Leighton Contractors Pty. Ltd. v. Kerrin On 24th July 1986, the learned trial judge convicted Leighton of an offence in that, on 18th February 1986, 1t dismissed Mr. Kerrin from his employment with Leighton, by reason of the circumstance that Mr. Kerrin was a member of the 8.L.F. In addition, the learned trial judge ordered that Mr. Kerrin be reinstated in his old position or ina similar position within seven days from 24th July 1986. The thrust of Leighton's appeal was against the conviction, and against the order for reinstatement. The learned trial judge was satisfied beyond reasonable doubt of the following facts: "(1) the BLF was on 18 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 as a builder's labourer at the Flinders Street Carpark site (the site) from early October 1985 until February 1986 but was unable to perform his work and was receiving payments of compensation from about 25 October 1985 until the hearing of this matter. (4) the prosecutor was a member of the BLF at the time when he gave evidence in this matter and had been since February 1985. (5) at all material times the defendant believed that the prosecutor was a member of the BLF. (6) the defendant was at all material times a member of the Master Builders' Association of Victoria (MBAV), an organization of employers registered under the Act. (7) on 18 February 1986 the prosecutor was given notice of termination of his employment by the defendant." - 12 - No challenge was made to any of these findings. With respect to conviction, the argument advanced on behalf of Leighton was similar to that advanced on behalf of Lewis, with one exception. Leighton did not have a representative at a meeting held at the M.B.A.V. premises on 12th February 1986; 1t did not give an ultimatum to the B.L.F. members employed by it, nor did it dismiss its employees who were B.L.F. members on 14th February 1986, as did other building employers. It acted after receiving an inquiry on behalf of the Public Works Department of the State of Victoria, requesting that B.L.F. members be dismissed in order to satisfy the Victorian Government's "code of conduct". Evidence was given on behalf of Leighton of three factors or reasons which influenced the decision to dismiss Mr. Kerrin. The first related to the Victorian Government's code of conduct, which required that building employers who dealt with the State of Victoria should observe certain practices in their dealings with the B.L.F. The second reason was the desire to be seen as standing with the rest of the building industry, rather than against 1t or outside it. The third was the ability of the B.L.F., if it wished to do so, to secure the 3.8% wage increase by giving the necessary undertaking to the Australian Conciliation and Arbitration Commission. Counsel for Leighton was unable to point to any finding of the learned trial judge which could be construed as a finding that Leighton saw the dismissal of its employees who were B.L.F. members as the only way in which it could combat the campaigns of - 13 - the B.L.F. Nevertheless, he argued that his Honour ought to have found that this was the sole reason which actuated Leighton in deciding to dismiss Mr. Kerrin and its other 8.L.F. member employees. Emphasis was placed on the use of the word "actuated" in s. 5(4); counsel called in aid dictionary definitions of the word "actuate", for the purpose of arguing that s. 5 was Concerned with the circumstance which motivated or inspired an employer to act in dismissing an employee. It was suggested that the three reasons given in evidence were factors in the decision, and not reasons for it. It is one thing to accept, as counsel for Leighton argued, that Leighton was aware of the B.L.F. campaigns, and the steps taken in support of them, including the application of bans to certain sites at which Leighton itself was operating (although not to the site on which Mr. Kerrin was employed at any relevant time). It is another to suggest that the learned trial judge should have refashioned the evidence actually given by heighton as to the reasons for the dismissal, by making from 1t another reason of a more fundamental kind, consistent with that advanced by the employers in the other cases the subject of these appeals. It is necessary to go still further to assume that this more fundamental reason was the "real" reason. All these steps need to be taken before considering whether that "real" reason was necessarily inconsistent with a dismissal by reason of the circumstance that Mr. Kerrin was a member of the &8.L.F. One further difficulty was that the person who made the decision to dismiss Mr. Kerrin gave evidence that "if Mr. Kerrin had not been in the B.L.F. he would not have been terminated". Such express - 14 - evidence made it very difficult, 1f not impossible, for Leighton to discharge the onus of proving that it was not actuated by the circumstance that Mr. Kerrin was a member of the B.L.F. Concentration upon the use of the word "actuated" in 5. 5(4) of the Act distracts attention from the fundamental question whether a particular dismissal was "by reason of the circumstance" proscribed by s. 5(1), and from the question whether the proscribed circumstance was a substantial and operative factor in the decision to dismiss. For all of these reasons, the appeal against conviction must fail. The power given to the Court by s. 5(5) of the Act to reinstate an employee the subject of an offence under s. 5(1) is a discretionary power. In normal circumstances, the discretion will be exercised in favour of the employee. See the judgment of the Full Court of the Federal Court of Australia in Bowling v. General Motors-Holden's Pty. Ltd. (1980) 50 F.L.R. 79, at page 94, Leaghton's submission that the exercise of the discretion in the present case had miscarried was supported by two arguments. Reference was made to the judgment of Northrop J. in Heidt v. Chrysler Australia Ltd. (1976) 26 F.L.R. 257, at page 266, to the effect that s. 5 of the Act is designed to protect organizations. The essential role played by organizations in the system of conciliation and arbitration established by the Act was emphasized. By s. 3 of the Builders' Labourers (Cancellation of Registration) Act 1986, which came into force on 14th April 1986, the registration of the B.L.F. as an organization was cancelled. It was said, therefore, that at the time when the learned trial - 15 - judge came to exercise the discretion, the B.L.F. could no longer avail itself of the protection for which 5. 5 was designed. It is not altogether clear that such a narrow purpose as the protection of organizations can be ascribed to s. 5. It is true that, in Heidt v. Chrysler Australia Ltd., Northrop J. saw the protection of organizations as being the purpose of the section. In General Motors-Holden's Pty. Ltd. v. Bowling (1576) 51 A.L.J.R. 235, at page 240, Mason J. said, with reference to sub-ss. (1) and (4) of 5. 5: "The two sub-sections are, broadly speaking, designed to protect an officer, delegate or member of an organization against discrimination by his employer." In Bowling v. General Motors-Holden's Pty. Ltd. (1980) 50 F.L.R. 79, at page 94, the Full Court said: "The policy and purpose of sub-ss.(1) and (4) of s. 5 is to protect organizations of employees and their representatives from discrimination and victimization by employers. Subsection (5) gives effect to an essential feature of that policy and purpose of os. 5. It as essential that an employer convicted of an offence against the section should not benefit from that offence by ridding itelf of an employee by reason of any one or more of the circumstances specified. The purpose of protection of organizations has been seen to be linked with the protection of their members. Indeed, the retention in s. 5(1) of the low maximum penalty (a fine of $400.00), coupled with the existence of the reinstatement power ins. 5(5), tends to suggest that the emphasis lies on the protection of the person dismissed, as much as upon the protection of the organization. If the intention were merely to protect organizations, this could no doubt be accomplished by heavy penalties, without the existence of a power to reinstate. There can be no doubt that the statutory de-registration of the B.L.F. was a matter which could properly be taken' into account by the learned trial judge inthe exercise of his discretion. His Honour clearly took account of the legislation, but regarded it as having little or no weight in the circumstances. It cannot be argued that the fact of de-registration of the B.L.F. precluded his Honour from exercising his discretion in favour of reinstatement. The second basis upon which Leighton sought tao overturn the decision in favour of reinstatement was that the order was, or could be rendered, futile. By virtue of cl. 38.1 of the National Building and Construction Industry Labourers (On Site) Award 1986, which appears to be the award governing the terms and conditions of employment of builders labourers employed by Leighton at the time when the judgment appealed from was delivered, as well as at the present time, the engagement of an employee is terminable by one day's notice, or the payment of one day's pay. In the absence of the protection of 5. 5 (the B.L.F. having been de-registered), it was said that Mr. Kerrin could be dismissed in accordance with the award immediately upon his reinstatement taking effect. Even if this argument is correct, the possibility of almost immediate dismissal would not operate to render an order for reinstatement futile. There may be many entitlements which might attach to Mr. Kerrin, and might be increased by greater - 17 - length of service, or seniority of service. Examples which spring to mind are accrued annual leave and long service leave. No attempt was made to show that such entitlements would not be affected materially by reinstatement, even for a short time. It was mot shown that the learned trial judge was incorrect in concluding that the Court's order would not be rendered futile. The same could be said of any order to reinstate any employee where a short period of notice is all that is necessary for termination of the employment after reinstatement. The appeal by Leighton must be dismissed. Prentice Builders Pty. Ltd. v. Bradford Bradford v. Prentice Builders Pty. Ltd. On 24th July 1986, Prentice was convicted of dismissing Mr. Bradford on 14th February 1986 by reason of the circumstance that he was a member of the B.L.F. Prentice was also ordered to pay to Mr. Bradford the sum of $477.22, which represented wages lost by him between his dismissal and a time at which he could have been re-employed in accordance with an offer of Prentice. The learned trial judge was satisfied beyond reasonable doubt of the following facts: "(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 Geelong Grammar building site (the site) from June 1985 until February 1986. (4) on 14 February 1986 the prosecutor was given notice of termination of his employment by the defendant. (5S) the prosecutor was a member of the BLF at the time - 18 - when he gave evidence and had been since 1981. (6) throughout the course of its employment of the prosecutor the defendant believed that the prosecutor was a member of the SLF. (7) the defendant was at all material times a member of the Master Builders' Association of Victoria (MBAV), an organization of employers registered under the Act." - Prentice appealed against the conviction, and Mr. Bradford appealed against the refusal of the learned trial judge to order that he be reinstated in the same, or a similar, position. The argument on behalf of Prentice was similar to that put by Lewis in its appeal. A representative of Prantice did attend the meeting at the M.B.A.V. premises on 12th February 1986. Prentice complied with the terms of the resolution passed at that meeting by dismissing all of the B.L.F. members employed by 1t on 14th February 1986, irrespective of whether those employees were applying bans at the time. There were no bans in force at the site at which Mr. Bradford was employed. Counsel for Prentice found it more difficult than in the case of Lewis to contend that there was one real reason for the dismissal of Mr. Bradford, which was inconsistent with his membership of the B.L.F. being a reason for his dismissal. This was because the managing director of Prentice conceded in cross-examination that the membership of the B.L.F. of the persons who were dismissed was "one of the reasons" for their dismissal, and that if they had not been members of the 8.L.F. they would not have been dismissed. Not surprisingly, there was no attempt by Prentice to lead evidence at the trial that Mr. - 19 - Bradford's membership of the 8B.L.F. was not a substantial operative factor in his dismissal. For the reasons given in relation to the appeal by Lewis, and for this additional reason, the appeal by Prentice must be dismissed. < The appeal by Mr. Bradford was against the refusal of the learned trial judge to order that he be reinstated in his old position or in a similar position. That refusal resulted from the exercise of the learned trial judge's discretion pursuant to s. 5(5). His Honour found that Mr. Bradford had been offered re-employment by Prentice, and that if he had accepted the offer he would have been able to recommence work at the site at which he had been employed, on 28th February 1986. The learned trial judge rejected a number of submissions made on behalf of Prentice as to why Mr. Bradford should not he reinstated. The decision not to reinstate was based upon the fact that an offer of re-employment had been made and not accepted by Mr. Bradford. In the course of his judgment, his Honour said: "The Bowling case principle 1s 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...nor should the principle, 1n 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." Counsel for Mr. Bradford contended that his Honour had not followed the principles laid down by the Full Court in - 20 - Bowling v. General Motors-Holden's Pty. Ltd. (1980) 50 F.L.R. 79, at pages 94-95, ain that he had treated an unaccepted offer of re-employment as a bar to the exercise of the power to reinstate, and had therefore allowed his discretion to be fettered. A-<close examination of the passage quoted above suggests, however, that his Honour was not treating such an offer as a bar, but treating it as ousting the prima facie principle that an employee should be reinstated upon conviction of his or her employer. Once the prima facie principle is ousted, it then becomes the duty of the Court to consider in all the circumstances whether reinstatement would be a proper order. The question for the Court on appeal is not whether the Court which hears the appeal considers that the discretion should have been exercised in a different manner; it is whether 1t was open to the learned trial judge to make the order which he made. In the present case, it 1s clear that it was open to the learned trial judge to exercise his discretion in the manner in which he did. The circumstances of the case were not sufficient to compel the Court to make an order for reinstatement. For these reasons, both appeals must fail. Hooker Cockram Limited v. Myles Myles v. Hooker Cockram Limited On 24th July 1986, the learned trial judge convicted Hooker Cockram of an offence in that on 14th February 1986 it dismissed Mr. Myles from his employment by reason of the circumstance that he was a member of the B.L.F. His Honour declined to order that Mr. Myles be reinstated, but ordered that - 21 - he be reimbursed wages lost by him between the date of his dismissal and the date upon which he could have been re-employed in accordance with an offer made to him by Hooker Cockram. Hooker Cockram appealed against the conviction, and Mr. Myles appealed against the refusal to reinstate him. The facts of this case, and the arguments presented on the appeals, are indistinguishable from those in the case of Prentice and Mr. Bradford. The site on which Mr. Myles was employed was the Walter and Eliza Hail Institute site. A representative of Hooker Cockram attended the M.B.A.V. meeting on 12th February 1986, and Hooker Cockram complied with the resolution passed at that meeting in dismissing all of the members of the B.L.F. employed by 1t on 14th February 1986. There were no bans in force at the site at which Mr. Myles was employed. This case was similar to the case involving Prentice and Mr. Bradford, in that a representative of Hooker-Cockram conceded in cross-examination that the membership of the B.L.F. of the persons dismissed was the only thing that connected them with the bans, and that it was "the reason" and "the only reason" that they were dismissed. As in the case involving Prentice and Mr. Bradford, this evidence made it impossible for the appeal by Hooker Cockram to succeed; not only could it not be argued that the learned trial judge had made a finding as to "real" or "sole" reason for dismissal, being a reason inconsistent with the proscribed reason, but there was actual evidence upon which it was proper for the learned trial judge to find that Mr. Myles's membership of the B.L.F. was a substantial and operative factor - 22 - in the reason for his dismissal. On the question of re-instatement, his Honour relied upon the same reasons as those he had given in the case involving Prentice and Mr. Bradford, without restating those reasons. It follows from the decision above in relation to that matter that Mr. Myles's appeal in this matter must fail. Both of these appeals will be dismissed. I cortiry thet this and tle / preceding paces om a trae copy of the Raasons for Juaziewu herein of his honour ur. Justice GRAY Assogiate Dated 2 y Fi ? - Dated 23/1a [Hs Len bp LOabdre, at No. V21 of 1986 Counsel for the Appellant : Mr A.W. McDonald QC and Mr L. Kaufman Solicitors : Messrs Freehill Hollingdale and Page Counsel for the Respondent : Miss M. Hickey Solicitors : Messrs Holding Redlich and Cooper Korbl No. V28 of 1986 Counsel for the Appellant : Mr P. Vickery Solicitors : Messrs Rigby and Fielding Counsel for the Respondent : Miss M. Hickey Solicitors : Messrs Holding Redlich and Cooper Korbl No. V35 of 1986 Counsel for the Appellant : Mr A.W. McDonald QC and Mr L. Kaufman Solicitors : Messrs Freehill Hollingdale and Page Counsel for the Respondent : Miss M. Hickey Solicitors : Messrs Holding Redlich and Cooper Korbl No. V36 of 1986 Counsel for the Appellant : Mr A.W. McDonald Qc and Mr L. Kaufman Solicitors : Messrs Freehill Hollingdale and Page Counsel for the Respondent : Miss M. Hickey Solicitors : Messrs Holding Redlich and Cooper Korbl No. V41 of 1986 Counsel for the Appellant : Miss M. Hickey Solicitors : Messrs Holding Redlich and Cooper Korbl Counsel for the Respondent : Mr A.W. McDonald QC and Mr L. Kaufman Solicitors : Messrs Freehill Hollingdale and Page No. V42 of 1986 Counsel for the Appellant : Miss M. Hickey Solicitors : Messrs Holding Redlich and Cooper Korbl Counsel for the Respondent : Mr A.W. McDonald QC and Mr L. Kaufman Solicitors : Messrs Freehill Hollingdale and Page