JUET NS. CATCHWORDS Industrial law - employer and employee - dismissal - whether by reason of membership or proposed membership of registered organization - identity of employer - nature of employment of "casual"" employees - whether employer must know of proposal to become member - whether deemed date of commencement of membership binds employer - whether onus on employer discharged. Conciliation and Arbitration Act 1904 s.5. AUSTRALIAN MEAT INDUSTRY EMPLOYEES' UNION v. SUNLAND ENTERPRISES PTY. LTD. trading as SUNLAND WHOLESALE MEATS, HEATHER DAWN ALDOUS trading as SUNLAND WHOLESALE MEATS AND DONALD CHARLES ALDOUS trading as SUNLAND WHOLESALE MEATS Nos. 130, 131, 132, 133, I34, 137, I38, 139, I40, I41, 142, 143, 144, 145, 148, 149, 152 and 153 of 1987 GRAY J. BRISBANE 28TH APRIL 1988 — tty, 200/ BS... IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY No. I 30 of 1987 ewer INDUSTRIAL DIVISION AUSTRALIAN MEAT INDUSTRY EMPLOYEES' UNION Prosecutor SUNLAND ENTERPRISES PTY. LTD. trading as SUNLAND WHOLESALE MEATS. Defendant MINUTES OF ORDER THE COURT ORDERS THAT the information is dismissed. (NOTE: Settlement and entry of orders 1s dealt with by 0.36 of the Federal Court Rules.) IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY No. I 31 of 1987 INDUSTRIAL DIVISION AUSTRALIAN MEAT INDUSTRY EMPLOYEES' UNION Prosecutor SUNLAND ENTERPRISES PTY. LTD. trading as SUNLAND WHOLESALE MEATS. Defendant MINUTES OF ORDER THE COURT ORDERS THAT the information is dismissed. (NOTE: Settlement and entry of orders is dealt with by 0.36 of the Federal Court Rules.) IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY No. I 32 of 1987 wwe ww INDUSTRIAL DIVISION AUSTRALIAN MEAT INDUSTRY EMPLOYEES' UNION Prosecutor SUNLAND ENTERPRISES PTY. LTD. trading as SUNLAND WHOLESALE MEATS . Defendant MINUTES _ OF ORDER THE COURT ORDERS THAT the information is dismissed. (NOTE: Settlement and entry of orders is dealt with by 0.36 of the Federal Court Rules.) IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY No. I 33 of 1987 INDUSTRIAL DIVISION AUSTRALIAN MEAT INDUSTRY EMPLOYEES '_ UNION Prosecutor SUNLAND ENTERPRISES PTY. LTD. trading as SUNLAND WHOLESALE MEATS . Defendant MINUTES OF ORDER THE COURT ORDERS that the further hearing of the information 1s adjourned to a date to be fixed. (NOTE: Settlement and entry of orders 1s dealt with by 0.36 of the Federal Court Rules.) a IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY No. I 34 of 1987 INDUSTRIAL DIVISION AUSTRALIAN MEAT INDUSTRY EMPLOYEES * UNION Prosecutor HEATHER DAWN ALDOUS trading as SUNLAND WHOLESALE MEATS Def endant MINUTES OF ORDER THE COURT ORDERS THAT the information 18 dismissed. (NOTE: Settlement and entry of orders is dealt with by 0.36 of the Federal Court Rules.) IN THE FEDERAL COURT OF AUSTRALIA ! ) NEW SOUTH WALES DISTRICT REGISTRY ) No. I 37 of 1987 ) INDUSTRIAL DIVISION ) AUSTRALIAN MEAT INDUSTRY EMPLOYEES' UNION Prosecutor DONALD CHARLES ALDOUS trading as SUNLAND WHOLESALE MEATS Def endant MINUTES OF ORDER THE COURT ORDERS THAT the information is dismissed. 'NOTE: Settlement and entry of orders is dealt with by 0.36 of the Federal Court Rules.) IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY No. I 38 of 1987 ~~ rere INDUSTRIAL DIVISION AUSTRALIAN MEAT INDUSTRY EMPLOYEES' UNION Prosecutor DONALD CHARLES ALDOUS trading as SUNLAND WHOLESALE MEATS Defendant MINUTES OF ORDER THE COURT ORDERS THAT the information is dismissed. (NOTE: Settlement and entry of orders is dealt with by 0.36 of the Federal Court Rules.) Bit IN THE FEDERAL COURT UF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY No. I 39 of 1987 INDUSTRIAL DIVISION AUSTRALIAN MEAT INDUSTRY EMPLOYEES' UNION Prosecutor HEATHER DAWN ALDOUS trading as SUNLAND WHOLESALE MEATS Def endant MINUTES OF ORDER THE COURT ORDERS THAT the information is dismissed. (NOTE: Settlement and entry of orders 1s dealt with by 0.36 of the Federal Court Rules.) IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY No. I 40 of 1987 INDUSTRIAL DIVISION AUSTRALIAN MEAT INDUSTRY EMPLOYEES " UNION Prosecutor HEATHER DAWN ALDOUS trading as SUNLAND WHOLESALE MEATS Defendant MINUTES OF ORDER THE COURT ORDERS THAT the information is dismissed. (NOTE: Settlement and entry of orders 1s dealt with by 0.36 of the Federal Court Rules.) IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY No. I 41 of 1987 _ wee ee INDUSTRIAL DIVISION AUSTRALIAN MEAT INDUSTRY EMPLOYEES' UNION Prosecutor DONALD CHARLES ALDOUS trading as SUNLAND WHOLESALE MEATS Def endant MINUTES OF ORDER THE COURT ORDERS THAT the information is dismissed. (NOTE: Settlement and entry of orders is dealt with by 0.36 of the Federal Court Rules.) IN_THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY No. I 42 of 1987 eee INDUSTRIAL DIVISION AUSTRALIAN MEAT INDUSTRY EMPLOYEES' UNION Prosecutor DONALD CHARLES ALDOUS tradina as SUNLAND WHOLESALE MEATS Defendant MINUTES OF ORDER THE COURT ORDERS THAT the information 1s dismissed. (NOTE: Settlement and entry of orders 1s dealt with by 0.36 of the Federal Court Rules.) IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY No. I 43 of 1987 ~~ y-~rvrnr INDUSTRIAL DIVISION AUSTRALIAN MEAT INDUSTRY EMPLOYEES' UNION Prosecutor HEATHER DAWN ALDOUS trading as SUNLAND WHOLESALE MEATS Defendant MINUTES OF ORDER THE COURT ORDERS THAT the information 1s dismissed. (NOTE: Settlement and entry of orders is dealt with by 0.36 of the Federal Court Rules.) IN_THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY No. I 44 of 1987 INDUSTRIAL DIVISION AUSTRALIAN MEAT INDUSTRY EMPLOYEES' UNION Prosecutor SUNLAND ENTERPRISES PTY. LTD. trading as SUNLAND WHOLESALE MEATS. Defendant MINUTES OF ORDER THE COURT ORDERS that the further hearing of the information is adjourned to a date to be fixed. (NOTE: Settlement and entry of orders 1s dealt with by 0.36 of the Federal Court Rules.) IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY No. I 45 of 1987 INDUSTRIAL DIVISION AUSTRALIAN MEAT INDUSTRY EMPLOYEES '_UNION Prosecutor DONALD CHARLES ALDOUS trading as SUNLAND WHOLESALE MEATS Def endant MINUTES OF ORDER THE COURT ORDERS THAT the information is dismissed. (NOTE: Settlement and entry of orders 1s dealt with by 0.36 of the Federal Court Rules.) IN THE FEDERAL COURT OF AUSTRALIA NEW sOUTH WALES DISTRICT REGISTRY No. I 48 of 1987 INDUSTRIAL DIVISION AUSTRALIAN MEAT INDUSTRY EMPLOYEES' UNION Prosecutor HEATHER DAWN ALDOUS trading as SUNLAND WHOLESALE MEATS Defendant MINUTES OF ORDER THE COURT ORDERS THAT the information is dismissed. (NOTE: Settlement and entry of orders 1s dealt with by 0.2 an of the Federal Court Rules.) IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY No. I 49 of 1987 INDUSTRIAL DIVISION AUSTRALIAN MEAT INDUSTRY EMPLOYEES' UNION Prosecutor DONALD CHARLES ALDOUS trading as SUNLAND WHOLESALE MEATS Def endant MINUTES OF ORDER THE COURT ORDERS THAT the information is dismissed. (NOTE: Settlement and entry of orders is dealt with by 0.36 of the Federal Court Rules.) IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY No. I 52 of 1987 INDUSTRIAL DIVISION AUSTRALIAN MEAT INDUSTRY EMPLOYEES 'UNION Prosecutor SUNLAND ENTERPRISES PTY. LTD. trading as SUNLAND WHOLESALE MEATS. Defendant MINUTES OF ORDER THE COURT ORDERS THAT the information is dismissed. (NOTE: Settlement and entry of orders is dealt with by 0.36 of the Federal Court Rules.) IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY = oO =) n fad ie) rh be WO fe) ~ INDUSTRIAL DIVISION AUSTRALIAN MEAT. INDUSTRY EMPLOYEES' UNION Prosecutor HEATHER DAWN ALDOUS trading as SUNLAND WHOLESALE MEATS Defendant MINUTES OF ORDER THE COURT ORDERS THAT the information is dismissed. (NOTE: Settlement and entry of orders 1s dealt with by 0.36 of the Federal Court Rules.) IN THE FEDERAL COURT OF AUSTRALIA ) ) Nos. 130, 131, 132, NEW SOUTH WALES DISTRICT REGISTRY ) 133, 134, 137, 138, ) ) I39, 140, 141, 142, T43, 144, 145, 148, T49; I52° and I53 of INDUSTRIAL DIVISION AUSTRALIAN MEAT INDUSTRY EMPLOYEES "_UNION Prosecutor SUNLAND ENTERPRISES PTY. LTD. trading as SUNLAND WHOLESALE MEATS, HEATHER DAWN ALDOUS trading as SUNLAND WHOLESALE MEATS and DONALD CHARLES ALDOUS trading as SUNLAND WHOLESALE MEATS Defendants REASONS _ FOR JUDGMENT JUDGE: Gray J. PLACE: Brisbane DATE: 28th April 1988. These eighteen informations were heard together on 7th, Sth, 9th, 10th and llth December 1987, and on 15th, 16th and 17th February 1988. Each information alleges the commission of an offence against s.5(1)(a) of the Conciliation and Arbitration Act 1904 ("the Act"). The relevant parts of that provision are as follows: "5(1) An employer shall not dismiss an employee...by reason of the circumstance' that the employee - (a) is or has been, or proposes, or has at any time proposed, to become...Cal member of an organization...". The prosecutor in each case is the Australasian Meat Industry Employees' Union ("the Union"), which is an organization of employees registered pursuant to the Act, and therefore an "organization" for the purposes of s.5(1)(a). Miss Simpson of counsel appeared for the prosecutor. There are three defendants, each of which is charged with six offences. One defendant is a company, Sunland Enterprises Pty. Ltd., which was formerly known as Aldous Investments Pty. Limited. The other two defendants are natural persons, Heather Dawn Aldous and Donald Charles Aldous. Each information alleges that the defendant concerned was or is "trading as Sunland Wholesale Meats". Mr. Murdoch of counsel appeared for the defendants. The charges are concerned with six persons, who are alleged to have been employees of, and to have been dismissed from their employment by, each of thé defendants. It is alleged that five of the persons, namely Peter Russell Svenson, Michael John Svenson, Michael Hughes, Christopher Bernard Collins and Selwyn Andrew Cannon, were dismissed by reason of the circumstance that each of them was a member of an organization. The remaining person, David John Clarke, is alleged to have been dismissed by reason of the circumstance that he proposed to become a member of an organization. There are three informations in respect of each of these persons, one directed against each of the defendants. The charges arose out of the following circumstances. At premises in Landsborough in Queensland, there was carried on the business of an abattoir, under' the name Sunland Wholesale Meats. The defendant Donald Aldous was managing director of the defendant company. There was also a manager of the abattoir, named Peter Sheen. Employed in the abattoir were a number of persons. The defendant company was a member of the Meat & Allied Trades Federation of Australia. By virtue of cl.3(a)(ii) of the Federal Meat Industry Award 1981 ("the Award"), members of that federation were bound by Part 1 of the Award in respect of all of their employees in classifications contained in the Award, whether those employees were members of the Unton or not. Clause 10 of the Award contained a table of weekly waye rates, in which there appeared classifications of employees in abattoirs. Clause 7 of the Award provided that, in engaging or dismissing labour, preference of employment should be given to financial members of the Union, and that in the event of no financial members of the Union being available for a position, employment may be given to an unfinancial member or non member of the Union, but that such person should within fourteen days of being employed become a financial member of the Union. Notwithstanding these provisions, prior to 23rd September 1986, there were no members of the Union employed at the abattoir. On 18th May 1984, a man named George Hughes commenced work at the abattoir as a permanent slaughterman. In December 1985, Mr. Aldous promoted George Hughes to the position of foreman. Towards the end of August 1986, George Hughes went on sick leave; he was absent from work for some three weeks. During this period, the former leading hand, Steven Wilks, was appointed by Mr. Sheen to the position of foreman. On Friday 12th September 1986, George Hughes telephoned Mr. Sheen to tell him that he would be well enough to return to work. This resulted in Mr. Sheen visiting George Hughes at his home, to tell him not to rush back to work. On Saturday 13th September 1986, Mr. Sheen again visited George Hughes at his home. The result of the conversation was that George Hughes was to attend for work on the following Monday, but was not to resume his position as foreman. He was asked by Mr. Sheen to give Mr. Wilks any assistance that he required, and to work fairly quietly. There was conflicting evidence from George Hughes and Mr. Sheen as to the balance of the conversation. Mr. Sheen said that he made it clear that George Hughes was being demoted from the position of foreman on a permanent basis, because Mr. Wilks was doing a better job. George Hughes said that his understanding was that Mr. Wilks would remain as foreman for another week, with George Hughes assisting him, and that nothing was said about permanent demotion. I prefer the version of Lhis conversation given by George Hughes. It is clear on any view that he did not have an understanding, at the end of that conversation, that he had been demoted permanently from the position of foreman. George Hughes returned to work on Monday 15th September. On Friday 19th September, after he had collected his pay, George Hughes complained to Mr. Sheen that he had not been paid enough. During his time as foreman, he had received an additional $40.00 per week for occupying the foreman's position. This amount was missing from his pay packet on 19th September. It was then that Mr. Sheen told George Hughes that he would no longer be foreman, and a conversation took place between those two about what George Hughes would do. He made complaints about Mr. Wilks as foreman, saying that he worked the men too hard. He said that he would continue to work as a slaughterman, and would join the Union and look after the interests of the men. Later that evening, Mr. Sheen telephoned George Hughes and told him that he was dismissed. George Hughes asked for a reason, and Mr. Sheen terminated the telephone call. George Hughes rang Mr. Sheen back and asked him for an explanation, which Mr. Sheen refused to give. George Hughes said that he would not accept dismissal over the telephone and would attend for work on the following Monday. On Saturday 20th September, George Hughes rang Mr. Aldous to ask him the reason for his dismissal, but Mr. Aldous refused to speak with him. He again rang Mr. Sheen to ask why he had been dismissed, and to say that he would attend for work on the following Monday. On the morning of Monday 22nd September, George Hughes attended at the abattoir. Mr. Sheen told him to collect his gear and get off the plant. Mr. Sheen offered him a cheque including a week's pay in lieu of notice, which George Hughes refused to accept. He left the abattoir and parked his car down the road. Mr. Sheen followed him and told him that he was) still on company property and was' to leave. George Hughes then parked further down the road. Several employees stopped to speak to him, and he told them of his dismissal. He also had a conversation with Mr. Aldous, who told him that the decision to dismiss him was Mr. Sheen's. On Tuesday 23rd September, George Hughes attended at the office at the abattoir and delivered a claim form for workers' compensation. That evening, a meeting was held at the Landsborough Hotel. It was attended by David Wood, an organizer of the Union, George Hughes, and some of the employees at the abattoir, including the Svenson brothers and Messrs. Collins, Cannon and Michael Hughes. During the meeting, eleven persons, including those employees, paid to Mr. Wood moneys by way of union subscriptions, and received membership tickets from him. Some were adult subscriptions and tickets and others were junior subscriptions and tickets. Mr. Sheen was aware that this meeting was to take Place before it did. On the Tuesday evening, he also received a report on what had occurred at the meeting from Stuart Wendt, another employee at the abattoir. Early the following morning, Wednesday September 24th, Mr. Aldous and Mr. Sheen were at the abattoir. A number of employees, including those who had been present at the meeting at the Landsborough Hotel on the _ previous evening, and including Mr. Clarke, were there. Differing accounts were given of what took place, but it is unnecessary to make detailed findings. The important events included a discussion between the employees and Mr. Aldous about the dismissal of George Hughes and other grievances. Either Mr. Wood or Mr. Collins, who had been elected to speak for the employees, asked Mr. Sheen whether George Hughes would be reinstated. Mr. Sheen said that George Hughes would not be reinstated. Mr. Wood and the employees held a meeting outside the gate, at which the employees resolved not to return to work until George Hughes was reinstated. Mr. Wood and Mr. Collins returned to tell Mr. Sheen of this resolution. At one point, Mr. Aldous announced that work was available to anyone who wanted it. Those at the meeting indicated their intention not to work until George Hughes was reinstated, so Mr. Aldous told them, "Get your gear and go." They dispersed. The abattoir continued to operate, with the work being performed by employees who were not on strike, and by management. On Thursday 25th September, a couple of employees returned to work. At about 9.15 a.m., Mr. Sheen telephoned Mr. Cannon and Mr. Collins, and told them that a failure to attend for work by 10.00 a.m. that day would be construed as misconduct. At 11.15 a.m. that morning he sent each of Mr. Collins, Mr. Clarke and Mr. Cannon a telegram in the following terms: "WE REFER TO OUR DISCUSSION THIS MORNING CONSERNING Csic.3J YOUR EMPLOYMENT WITH THIS COMPANY. AS YOU HAVE REFUSED A LAWFUL DIRECTION OF YOUR EMPLOYER TO ATTEND WORK WITHOUT HAVING A REASONABLE EXCUSE YOUR SERVICES ARE HEREBY TERMINATED ALL MONIES WILL BE FORWARDED AS SOON AS POSSIBLE P J SHEEN GENERAL MANAGER" Thereafter, each of Messrs. Collins, Clarke and Cannon, together with the Svenson brothers, received their final pay cheques. In each of these proceedings, the prosecutor carries the onus of proving the existence of an employment relationship, the fact of a dismissal, and the fact of membership or proposed membership (as the case may be) of the Union. Each of these elements must be established beyond reasonable doubt. If that onus is discharged, by virtue of s.5(4) of the Act, the relevant defendant carries the onus of proving, on the balance of probabilities, that it, he or she was not actuated by the membership or proposed membership of a particular employee in dismissing him. It is convenient to deal with the issues that arose in these proceedings under separate headings. THE IDENTITY OF THE EMPLOYER There is in evidence a certified extract from the register of business names, kept pursuant to the Business Names Act 1962-1979 (Qld.). That extract shows that three persons were registered as carrying on business under' the business name Sunland Wholesale Meats, namely Heather Dawn Aldous, Donald Charles Aldous and Aldous Investments Pty. Ltd. It was no doubt on the basis of a search of the business names register that each of the three defendants was prosecuted. 10. By s.24 of the Business Names Act 1962-1979 (Qld.), a copy of or extract from the register is prima facie evidence of the truth of its contents. The prosecutor is entitled to avail itself of this provision, in seeking to prove that each of the defendants was a proprietor of the business of the abattoir, and was therefore an employer of each of the relevant employees. The effect of the provision is not conclusive, however. It is well established by authority that evidence may be given of the true facts as to the conduct of a business under a registered business name, and that findings may be made otherwise than in accordance with the prima facie rule. See Press v. Mathers (19271 V.L.R. 326, Re Johnson; Ex parte Greendale Engineering & Cables Pty. Ltd. (1967) 11 F.L.R. 335, at pp. 341-344, Aikman v. Brown (1973) 1 A.C.T.R. 121, Re ABC Plastik Pty. Ltd. (1975) 1A.C.L.R. 446, at pp. 449-450 and Mutual Acceptance Ltd. Vv. May (1979) 4 A.C.L.R. 250. The effect of the statutory presumption is to cast upon a party seeking to overcome it an evidential burden, i.e. the burden of producing evidence that the person or persons registered as carrying on business under the registered name did not in fact carry on that business. In the present proceedings, the defendants carry that evidential burden. The legal burden of establishing beyond reasonable doubt that each defendant was an employer remains on the prosecutor. If, after weighing the evidence led on behalf of the defendants against the ll. prima facie effect of the statute, the Court is left with a reasonable doubt as to whether any of the defendants was an employer, that defendant is entitled to an acquittal. The defendants did lead a considerable quantity of evidence designed to show that the business under the name Sunland Wholesale Meats was carried on only by the defendant company, which is now known as Sunland Enterprises Pty. Ltd. All group certificates under the Income Tax Assessment Act 1936 in respect of the relevant employees were in the name of the company only. The company held the relevant licence in respect of the abattoir under the Meat Industry Act 1965-1984 (Qld.). The pay-roll tax return in respect of September 1986 named the company as employer, as did the group tax remittance under the Income Tax Assessment Act 1936 for the same period. Workers' compensation insurance was effected in the company's name. The bank account through which funds used in the business passed was also in the company name. On 30th July 1986, the * company made an application to the Landsborough Shire Council for a permit to carry out certain improvements on the land occupied by ther abattoir. In addition, both Mr. & Mrs. Aldous gave evidence to the effect that they were not engaged in the business as proprietors. Each was a director of the company, which carried on both the business of the abattoir under the name Sunland Wholesale Meats, and the business of a retailer of meat through two butchers' shops under the name Aldous Meats. 12. In response to this evidence, Miss Simpson relied upon certain aspects of the documents which tended to indicate that a distinction was drawn between the company and the business carried on under the name Sunland Wholesale Meats. The name Sunland Wholesale Meats appeared on cheques which were in evidence, and ona cheque requisition. The application for development approval of the abattoir premises was made in the name of the company, but the occupier of the premises was shown as Sunland Wholesale Meats. Miss Simpson also relied on evidence from Mrs. Aldous that the abattoir business was a "family business", evidence from Mr. Sheen that the sale of meat to Aldous Meats was by way of genuine transaction, with payment being made, and evidence of Mr. Aldous with respect to the employees, that, "I consider they all work for me...". All of these items were said to support the validity of the business name registration, by showing that there were in fact different proprietors of the abattoir and the retail businesses. These items of evidence, however, are consistent with the desire to draw a distinction between two separate businesses carried om by the one company, and by a normal lack of understanding of the effect of incorporation with limited liability. They do not point unequivocally to Mr. and Mrs. Aldous as being proprietors of the business conducted under the name Sunland Wholesale Meats; still less 13. do they point to those two persons as heing employers. The state of the evidence is such as to leave a real doubt as to whether Mr. and Mrs. Aldous were employers. Since the onus on this issue is on the prosecutor, to establish the fact beyond reasonable doubt, all of the informations against Mr. and Mrs. Aldous must be dismissed. "CASUAL" EMPLOYEES Clause 6 of the Award provides, in part, as follows: "Ca) Except as hereinafter provided, employment shall be by the week. Any employee not specifically engaged as a casual employee shall be deemed to be employed by the week. Except as may hereinafter be provided an employee, to become entitled to payment on a weekly basis, shall perform such work as'- the employer shall from time to time require on the days and during the hours usually worked by the class of employee affected. (b) Fmployment other than casual] shall be terminatud only by a week's notice on either side...". Clause ll(a) of the Award conluins Lhe following provisions: ""(a) (1) A casual employee other' than a casual clerk or cashier may be employed for not less than four hours on any day, Monday to Friday, inclusive, and shall be paid one-fortieth of the weekly wage prescribed for the work performed, 14. plus 20% for each hour' employed. For time worked in excess of eight hours in any one day or shift in a five day week or 7-1/4 hours in any one day ina five and a half day week ordinary overtime rates shall be paid, provided that a casual employee other than a casual clerk or cashier or cleaner may be engaged ina retail butcher's shop on a Saturday for a minimum of four hours at ordinary overtime rates. A casual employee shall be notified at the time of each engagement whether he is working in a five or five and a half day week system. (11) Where a casual employee is required to perform more than one class of work on any one day, he shall be paid for the whole of the time worked on that date at the highest wage prescribed in this award for any of the work he performs. Peter and Michael Svenson were described in evidence on behalf of the defendants as "casual employees" or "casuals". Mr. Murdoch contended that, as casual employees, they entered into separate contracts with the defendant company on each day upon which they attended for work. In each case, the employee's last contract came to an end on the Tuesday when he ceased work. Attendance on the Wednesday was not for the purpose of working, so that no new contract came into existence. There was, therefore, no dismissal of a casual employee. Miss Simpson drew attention to the fact that the Award does not provide specifically for the terms of a contract of employment for casual employees. There is 15. nothing in the Award inconsistent with the proposition that a casual employee may work under a continuing contract of employment, even though the working days and hours of that employee are variable. There was evidence that it was. the practice at the abattoir to tell the casual employees if they were not required on the following day. If this were not done, the casual employees turned up and worked in the ordinary way, subject to being released early if the quantity of work available did not justify their retention for the full day. Any equipment owned by the defendant company and used by the casual employees was not handed in by them at the end of each day, but was retained by the employees for their use. It followed from these factors, so Miss Simpson submitted, that the casual employees actually worked under continuing contracts of employment, and were still employed on the morning of Wednesday 24th September 1986. They were dismissed, either by Mr. Aldous telling them to get their gear and go on that morning, or impliedly by the receipt of their final pay cheques some days later. It is true that the Award does not lay down in detail the terms upon which casual employees are to be engaged. Clause 6(a) does tend to suggest that a casual employee may be employed otherwise than by the week, and it igs clear from clause 11(b) that a casual employee may be dismissed otherwise than by a week's notice. On the other hand, clause 1l(a)(i), particularly the last sentence, 16. contemplates continuity in the performance of work by a casual employee. It is fair to say that the Award neither requires nor precludes daily engagement of casual employees. The term "casual employee" does not have a recognised iegal meaning. This is apparent from cases such as Doyle v. Sydney Steel Co. Ltd. (1936) 56 C.L.R. 545, and Linehan v. Northwest Exports Pty. Ltd. (1981) 57 F.L.R. 49, especially at pp. 57-61. In these circumstances, the issue of the terms on which the actual casual employees were engaged becomes one of fact. Many of the circumstances relied on by Miss Simpson as indicating continuity of employment are consistent with daily engagement, along with a practical recognition of a continuing need for casual labour. In the result, the evidence as to the terms of engagement of the casual employees remains equivocal, and the Court cannot be satisfied beyond reasonable doubt that an employment contract in respect of each of the Svenson brothers subsisted on the morning of Wednesday 24th September 1986 or thereafter. The prosecutor has therefore failed to prove that either of the Svenson brothers was dismissed from his employment at a time when he was or may have been a member of the Union. It follows that the remaining informations of which the Svenson brothers are the subject must be dismissed. Miss Simpson did submit that, if the Court were minded to find in favour of the defendants on the issue whether the casual employees were dismissed, it should state 17. a case for the opinion of a Full Court on that issue. The submission was based expressly on the absence of any right of appeal by a prosecutor from an acquittal on a charge laid under s.5 of the Act. See Burgess v. John Connell-Mott, nd_And Pty. Ltd. (1979) 39 F.L.R. 444, Wood v. City of Melbourne (1979) 41 F.L.R. 22. The power to state a case is given by s.25(6) of the Federal Court of Australia Act 1976. It can be exercised only in respect of a question of law. As I have said, the issue of the terms on which the casual employees were engaged is one of fact. The Court cannot accede to Miss Simpson's submission. MICHAEL HUGHES Michael Hughes was also described as a casual employee. The circumstances of his dismissal differ from those of the Svenson brothers. There is uncontradicted evidence that Michael Hughes was dismissed on the afternoon of Tuesday 22nd September 1986 at the latest, by the foreman Mr. Wilks, because of alleged difficulties with his "attitude". Michael Hughes was the son of George Hughes, and was no doubt upset at the treatment which his father had received. This caused him to have some altercations with Mr. Wilks on the Monday, and resulted in Mr. Wilks sending him home on the Monday afternoon. Michael Hughes returned on Tuesday afternoon and asked whether he would be working on the Wednesday. Having discussed the question of the 18. continuing employment of Michael Hughes with his superiors in the meantime, Mr. Wilks told him he would not be needed any more. On no view could Michael Hughes have been a member of the Union at that time. The remaining information of which Michael Hughes is the subject must therefore be dismissed. DAVID CLARKE It will be recalled that the remaining information of which Mr. Clarke is the subject alleges that he was dismissed by reason of the circumstance that he proposed to become a member of the Union. On Tuesday 23rd September 1986, when the meeting was held at the Landsborough Hotel, Mr. Clarke was working in a boning room that was operated by the defendant company at Caloundra. He was not able to attend the meeting. After the meeting, he was visited at the boning room by a couple of his fellow employees, who told him that a number of employees at the abattoir had joined the Union. Mr. Clarke then formed the intention to join the Union. He conceded in his evidence that he did not communicate this intention expressly to any other person. He did attend at the abattoir early in the morning on 24th September, and was part of the group of employees which met and resolved not to return to work until George Hughes was reinstated. He was a recipient of a telegram from Mr. Sheen, and his employment was terminated on the Thursday when he failed to return to work. 19. In these circumstances, it is difficult to see how the defendant company could be convicted of the offence with which it is charged in respect of Mr. Clarke. The prosecutor concedes that no officer of the defendant could have known that Mr. Clarke had made a decision to become a member of the Union. It might have been supposed from his attendance on the Wednesday morning with others, who were known to have joined the Union, that he had also joined. Even if the defendant company, in deciding to dismiss Mr. Clarke, assumed that he had joined the Union, it would not be guilty of the offence of dismissing him by reason of the circumstance' that he proposed to join the Union. Express communication of a proposal to join an organization may not always be a necessary element of the offence of dismissing an employee by reason of the circumstance that the employee proposes to become a member of an organization. There may be circumstances in which an employer may come to know of the proposal by reason of the actions of the employee, and without express communication. In the present case, however, the evidence discloses that no-one other than Mr. Clarke himself knew of his Proposal, and the defendant company cannot be convicted for dismissing Mr. Clarke by reason of a circumstance the existence of which its officers did not know. 20. MEMBERSHIP OF THE UNION Rule 5 of the rules of the Union deals with the methods whereby a person may become a member of the An understanding of these methods involves an examination sub-rules (1) and (3): "(1) Any person eligible to become a member of (2) (3) the Union shall forward or cause to be forwarded to the Secretary of any Branch of the Union (or to the Secretary of any Sub-Branch of the Union or to the Secretary of any District Committee of the Union authorised to accept applications) in the Branch or Sub-Branch or District Committee in which such person resides, an application form signed by the applicant. Upon the receipt by the Secretary aforesaid of the said application form, such person shall, subject to the proviso contained in this rule be and be deemed to be a member of the Union as from the date of the signing of the said application forn. Provided that the Federal Secretary of the Union or any Secretary as aforesaid shall have and is hereby given the power to refer any such application to the Committee of Management of the Branch or Sub-Branch or to the Branch Executive in which such person applies for admission. When any person's application is referred as above, such person shail be notified in writing of the result of such reference by the Branch Secretary, and in the event of such application being accepted, then such person shall be and be deemed to be a member of the Union as from the date of the signing of such application form. A person eligible to become a member of the Union may also become a member notwithstanding that he has not signed and forwarded an application form as prescribed above if he has paid the Union. of 21. current half-year's contribution fixed pursuant to Rule 6 (1) to the Secretary or authorised official of the Branch or Sub-Branch or District Committee in which such person resides or if deductions are made by an employer on account of contributions in respect of such person pursuant to Rule 6 (2A). Such person shall be deemed to apply to become a member of the Union on the date on which the said payment is made. Upon the receipt by the Secretary aforesaid of the said payment such person shall, subject to the proviso contained in this Sub-Rule, be and be deemed to be a member of the Union as from the date on which the half~year's contribution is paid or where deductions are made by an employer pursuant to Rule 6 (2A) as from the date on which the first such deduction is made. Provided that the Federal Secretary of the Union or any Secretary as aforesaid shall have and is hereby given the power to refer any such application to the Committee of Management of the Branch or Sub-Branch or to the Branch Executive in which such person applies for admission. When any person's application is referred as above, such person shall be notified in writing of the result of such reference by the Branch Secretary, and in the event of such application being accepted then such person shall be and be deemed to be a member of the Union as from the date on which the half-year's contribution is paid or where deductions are made by an employer puruant to Rule 6 (2A) as from the date on which the first such deduction is made." The persons who joined the Union at the Landsborough Hotel on 23rd September 1986 did not sign and forward, or cause to be forwarded, application forms. Sub-rule (1) therefore did not apply to then. They paid half-yearly contributions to Mr. Wood, the Union organizer. They were thereby deemed by sub-rule (3) to apply to become 22. members on the date on which they made the payments, namely on Tuesday 23rd September 1986. Mr. Wood was an authorised official of the relevant branch of the Union for this purpose. Mr. Wood issued to each of those persons a_ receipt in the name of the Union, bearing a facsimile signature of the Queensland Branch Secretary, and an actual signature of Mr. Wood. Because of the late hour at which the meeting at Landsborough finished, and the events of the following morning, Mr. Wood did not return to the Union office in Brisbane until later on the Wednesday, at which time he handed in to the office the moneys which were received. Argument took place as to the time at which the persons concerned became members. By virtue of the second deeming provision found in sub-rule 5(3) of the Union's rules, ag between himself and the Union, each person's membership commenced on the Tuesday evening when he paid his contribution to Mr. Wood. There is a question, however, whether a third party, such as the defendant company, could be bound by the deeming provision if in fact the membership did not commence until later receipt by the Branch Secretary of the contribution. 23. The importance of this question was only in relation to the casual employees. If they were dismissed on the morning of Wednesday 24th September, when Mr. Aldous told them to "Get your gear and go", and if by that time their contributions had not been received by the Secretary, it may be that they had not then become members of the Union. As between themselves and the Union, their membership would be deemed to have dated back to payment of the contributions to Mr. Wood, once the contributions were received by the Branch Secretary. Miss Simpson argued that the contributions were received by Mr. Wood as agent for the Branch Secretary, so that the deeming provision was not required to operate in the particular cases. On this view, membership commenced on the evening of Tuesday 23rd September. In the light of my conclusions as to the casual employees, it is unnecessary for me to determine this question. It is common ground between the parties that the permanent employees were dismissed at a later time, by which, on any view they had become members of the Union, without needing to rely on the deeming provision. THE REMAINING PERMANENT. EMPLOYEES The only informations which remain to be dealt with are those with reference to Messrs. Collins and Cannon. On any view, these two employees were permanent employees, and were dismissed at a time when each was a member of the Union. An offence was Lherefore committed in respect of 24, each, unless the defendant company can satisfy the onus cast on it by 3.5(4) of the Act of proving that, in dismissing Messrs. Collins and Cannon, it was not actuated by the reason that each was a member of the Union. This onus can only be discharged by the defendant company establishing on the balance of probabilities that the Union membership of each of the employees was not a substantial operative factor in the decision to dismiss him. See General Motors Holden Pty. Ltd. vy. Bowling (1976) 12 A.L.R. 605, especially at pp. 616-617, and Lewis Construction Co. Pty. Ltd. ve. Martin (1986) 70 A.L.R. 135, especially at p. 137. Evidence led on behalf of the defendant disclosed that the decision to dismiss Messrs. Collins and Cannon was taken by Mr. Sheen. He consulted Mr. Aldous, who agreed with the decision, but made it clear that the decision was one for Mr. Sheen to take. It follows that any evidence which goes to discharging the onus on the defendant company must be evidence to the effect that the Union membership of Messrs. Collins and Cannon was not a substantial operative factor in his decision. There is no doubt that Mr. Sheen knew that the two had joined the Union. He had received information from Stuart Wendt about the meeting at the Landsborough Hotel on the Tuesday evening. He had seen Messrs. Collins and Cannon in company with the other persons at the gate on the Wednesday morning, when Mr. Wood had referred to them generally as "members". 25. Mr. Sheen gave express evidence to the effect that he had not relied upon Union membership at all in making the decision to dismiss. His evidence was that he had decided to dismiss the employees solely because they refused to obey lawful directions to return to work. Such evidence should always be scrutinized carefully. It is easy for an employer, after the event, to assert that a dismissal was the result only of factors unrelated to the proscribed circumstance alleged under s.5 of the Act. See Sandilands v. Australian Newsprint Mills Ltd. (1982) 3 I.R. 386, at p. 392. In the present case, Mr. Sheen's prime motivation in giving his evidence seemed to be to present the actions of the defendant company in the best possible light in all respects. On many occasions, this virtue of loyalty was carried to the extent that it became the vice of untruthfulness. Mr. Sheen was cross-examined about many aspects of the Award, with a view to showing that' the defendant company was in breach of the Award in many respects, and therefore had a motive to ensure that the Union did not obtain a foothold amongst its employees. Mr. Sheen was forced to concede breaches by the defendant company of many of its obligations. In each case, he advanced explanations designed to cast the conduct of the defendant company in an innocent light. Invariably, when subjected to further cross-examination, he was compelled to concede that 26. these explanations were false. Further, when cross-examined initially about the role played by Mrs. Aldous, Mr. Sheen was at pains to minimize her role. When it became clear that the cross-examination was going to Mr. Sheen's credit, by alleging that he had participated in a scheme to defraud the Commissioner for Taxation by causing the defendant company to claim as a taxation deduction a salary paid to Mrs. Aldous, he attempted to maximize the contribution that Mrs. Aldous made to the running of the defendant company's business. Mr. Sheen was cross-examined at some length, and with considerable skill, by Miss Simpson. He is not, however, a stupid man, and was not induced by the cross-examination to make involuntary statements. Rather, as I have said, he deliberately committed himself to propositions which he thought would be to the advantage of the defendant company, and continued to do this even when the falsity of earlier propositions had been exposed. In short, he was quite prepared to resort to untruths if he thought it would assist the case of the defendants. He tended to prevaricate about matters which might have reflected badly on himself or the defendant company. Many of his accounts of conversations with George Hughes involved conclusions from what George Hughes had said, which conclusions cast George Hughes in a bad light. When pressed for the actual words George Hughes had used, Mr. Sheen recounted words which were equally consistent with George Hughes's innocence of malice. 27. Mr. Sheen's performance in the witness box would be sufficient to require extreme caution in accepting anything he said in the defendant company's interest, unless that item of evidence were corroborated from some other source. With respect to the proposition that Mr. Sheen excluded Union membership from his mind in deciding to dismiss the employees, there is an additional factor which makes that proposition unacceptable as a matter of probability. The Proposition was wholly inconsistent with the attitude of those in control of the defendant company towards the Union. Both Mr. Aldous and Mr. Sheen conceded in the witness box that they did not want employees of the defendant company to be members of the Union. It was well known to Mr. Sheen that Mr. Aldous, his superior, had this attitude. Mr. Aldous had expressed himself to employees on at least one occasion in terms which made it clear that he disapproved of their contemplation of Union membership. Reference has already been made to the non-observance by the company of its obligation under cl.7 of the Award to give preference to members of the Union, and to require employees who were not members to join the Union. There is no doubt that Mr. Sheen regarded membership of the Union by any employees at' the abattoir as a threat to the manner in which the defendant company wished to conduct the business of the abattoir. In those circumstances, it would be surprising if Mr.Sheen, in deciding whether to dismiss employees who were on strike, 28. were able to put out of his mind the involvement of the Union. Further insight is given into Mr. Shecn's thinking by events concerning junior emplnyee:., which occurred after the strike began. Four junior employees had been present at the meeting at the Landsborough Hotel, and had joined the' Union. They included Warren Langton and Ross' Shannon. Whilst on strike on the Wednesday, Warren Langton saw Stuart Wendt and his brother, Richard, who was also employed at' the abattoir, and received advice to the effect that he should leave the Union if he wanted to keep his job. He went to see Mr. Sheen to ask if he could return to work, and was told that he could. On the Thursday, both Warren Langton and Mr. Shannon returned to work. Some discussion took place between them and Mr. Sheen about leaving the Union. Mr. Sheen telephoned the Meat & Allied Trades Federation of Australia, and was given some advice about a form of resignation from the Union. It is a matter of some interest that this advice was obviously given in ignorance of the terms of 3.145 of the Act, and of rules 38 and 39 of the Union's rules, given that Warren Langton and Mr. Shannon did not intend to cease working in the meat industry. At all events, Mr. Sheen had the form of resignation from the Union typed out, and then gave it to each of the two employees and asked them to write it out in their own handwriting and to sign it. He did this, on his own evidence, on the basis that a resignation written 29. in the hand of the member concerned would be "more natural" than one typed by the defendant company. Warren Langton and Mr. Shannon each wrote out the resignation, and signed it. Subsequently, two other employees, Wayne Langton and Glen Locking wrote and signed similar resignations. All four were posted to the Union by direction of Mr. Sheen. In his evidence, Mr. Sheen claimed that Warren Langton approached him, saying that he had been induced by lies to join the Union, and wished to leave it. Mr. Sheen asserted that his actions were done in response to such a request, and to assist Warren Langton. Similarly, he gave evidence that Mr. Shannon had asked for advice on how to resign from the Union, following upon that given to Warren Langton. Warren Langton, who is still employed by the defendant company and was called as a witness on its behalf, did not support, and indeed denied, making any statements to Mr. Sheen about having been told lies to induce him to join the Union. He refuted the suggestion that he had been told such lies. In cross-examination, he revealed that' the suggestion that he should resign from the Union, and that Mr. Sheen should assist him to do so, came from Mr. Sheen. Mr. Shannon, who has had a long period off work on workers' compensation, was a co-operative witness, who tended to agree with what was put to him by either counsel. When asked to give his own version of what occurred, he did not support the proposition that he had approached Mr. Sheen and asked for help in resigning from the Union. 30. Mr. Sheen eventually conceded that he had not drawn the attention of Warren Langton and Mr. Shannon to cl. 7 of the Award, but had been happy to see them resign from the Union notwithstanding that clause. I am satisfied that Mr. Sheen was keen to ensure that the junior employees did so resign. If he did not make it a condition of their return to work that they should do so, he made it perfectly clear that resigning from the Union was the desirable course so far as the defendant company was concerned. Further, Mr. Sheen sought to cover his tracks to some extent by having the four employees handwrite their own resignations. These actions serve to reveal Mr. Sheen's determination that no employee of the defendant company should be a member of the Union. Given this state of mind, it is difficult to see how Mr. Sheen could have put aside the Union membership of Messrs. Collins and Cannon in deciding to dismiss them. It must be borne in mind that Mr. Sheen was taking steps to get those who returned to work out of the Union on the afternoon of the day on which he dismissed those who did not return to work. There is no question of inconsistency between dismissing employees for failing to obey a lawful direction by returning to work, and dismissing them because they had become members of the Union. Indeed, in the circumstances of this case, the two factors were in their nature closely related. It is well established by the authorities to which 31. I have already referred that the assertion of a_ single legitimate reason for dismissal does not preclude the existence of another reason or other reasons, one or more of which may be proscribed by s.5 of the Act. An attempt was made to argue that the attitude of the defendant company was shown by Mr. Aldous's statement on the Wednesday morning to the effect that there was work available for those who wanted it. Mr. Murdoch argued that this statement indicated that the defendant company, knowing that employees had joined the Union, was prepared for them to return to work if they wished to do so0. The simple answer to this 1s that, even if that were Mr. Aldous's state of mind on the Wednesday morning, the relevant inquiry is as to Mr. Sheen's state of mind on the Thursday. Having regard to all of the above matters, I cannot accept that it is more probable than not that Mr. Sheen did not regard Union membership as a substantial operative factor when he came to decide to dismiss Messrs. Collins and Cannon. Mr. Murdoch also relied on passages in Roberts ve General Motors-Holden's Employees' Canteen Societ Inc. (1975) 25 F.L.R. 415 (being part of the judgment in that case not reported, but recounted in Butterworths Federal Industrial Laws Service at p. 2235) and Sandilands v. Australian Newsprint Mills Ltd. (1982) 3 I.R. 386, at p. 392. Those statements were made with respect to the facts of the Se 32. particular cases; it is unwise to attempt to elevate them to the status of propositions of law. The question is always whether, in a particular case, the employer concerned has discharged the onus cast on it, him or her, by proving on the balance of probabilities that the relevant proscribed circumstance was not a substantial operative factor in the dismissal, or other act charged. In the present case, that onus has not been discharged by the defendant company. The result is that, in each of matters Nos. 133 and I44 of 1987, the defendant company will be found guilty of an offence against 3.5(1)(a) of the Act, in that it did dismiss Messrs.Collins and Cannon by reason of the circumstance that each of them was a member of the Union. So far, the Court has not heard anything which the defendant may wish to put forward in mitigation of penalty, or any evidence or submissions as to whether orders should be made for reinstatement of Messrs. Collins and Cannon, or for the reimbursement of wages lost by them, pursuant to s.5(5) of the Act. Accordingly, the only order which can be made at this stage is an order that the two proceedings be adjourned to a date to be fixed, to enable the prosecutor to comply with 0.49 r.5 of the Federal Court Rules, if it wishes to rely on any evidence on these matters. Appearances: Counsel for the Prosecutor: Solicitors for rhe Prosecutor: Counsel for the Defendant: Solicitors for the Defendant: Agent in Sydney: Hearing Dates: I certify 33. Miss C. Simpson Poteri Woods & Co. Mr. J. Murdoch Maurice Fletcher & Cross Mr. J.H. Colvin Freehill Hollingdale and Page 7, 8, 9, 10, 11 December 1987 15, 16, 17 February 1988 that this and the preceding thirty-two (32) pages are a true Judgment of Gray. Dated: Associate: Dah vr Jhe Reasons' for Justice copy of the the Honourable