Transport Workers' Union of Australia v De Vito [2000] FCA 139

FEDERAL COURT OF AUSTRALIA

Transport Workers' Union of Australia v De Vito [2000] FCA 139

TRANSPORT WORKERS' UNION OF AUSTRALIA v C J DE VITO

VG 13 of 1998

RYAN J MELBOURNE 21 FEBRUARY 2000

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY VG 13 OF 1998

BETWEEN: TRANSPORT WORKERS' UNION OF AUSTRALIA

Applicant

AND: C J DE VITO

Respondent

JUDGE: RYAN J

DATE OF ORDER: 21 FEBRUARY 2000

WHERE MADE: MELBOURNE

MINUTES OF ORDER

THE COURT ORDERS: 1. That the application be dismissed. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY VG 13 OF 1998

BETWEEN: TRANSPORT WORKERS' UNION OF AUSTRALIA

Applicant

AND: C J DE VITO

Respondent

JUDGE: RYAN J

DATE: 21 FEBRUARY 2000

PLACE: MELBOURNE

REASONS FOR JUDGMENT 1 This is an application under s 298T of the Workplace Relations Act 1996 ("the Act") for imposition of a penalty on the respondent, Mr De Vito, pursuant to s 298U(a) of the Act. That paragraph provides that: "In respect of conduct in contravention of this Part, the Court may, if the Court considers it appropriate in all the circumstances of the case, make one or more of the following orders: (a) an order imposing on a person or industrial association whose conduct contravened or is contravening the provision in question a penalty of not more than: (i) in the case of a body corporate - $10,000; or (ii)in any other case - $2,000;" 2 The contravention of Part XA of the Act which is alleged against Mr De Vito is that he dismissed or injured in his employment a former employee, Mr George, for a reason prohibited by s 298K(1) which provides: "An employer must not, for a prohibited reason, or for reasons that include a prohibited reason, do or threaten to do any of the following: (a) dismiss an employee; (b) injure an employee in his or her employment; (c) alter the position of an employee to the employee's prejudice; (d) refuse to employ another person; (e) discriminate against another person in the terms or conditions on which the employer offers to employ the other person." 3 A list of "prohibited reasons" for the purposes of s 298K is to be found in s 298L(1) of the Act which, so far as is relevant, is in these terms: "Conduct referred to in subsection 298K(1) or (2) is for a prohibited reason if it is carried out because the employee, independent contractor or other person concerned: (a) is, has been, proposes to become or has at any time proposed to become an officer, delegate or member of an industrial association; or ... (h) is entitled to the benefit of an industrial instrument or an order of an industrial body; or ... (l) in the case of an employee, or an independent contractor, who is a member of an industrial association that is seeking better industrial conditions – is dissatisfied with his or her conditions; or ... (n) as an officer or member of an industrial association, has done, or proposes to do, an act or thing for the purpose of furthering or protecting the industrial interests of the industrial association, being an act or thing that is: (i) lawful; and (ii) within the limits of an authority expressly conferred on the employee, independent contractor or other person by the industrial association under its rules." 4 The respondent has, since about 1989, carried on business as a cartage contractor under the name "C J De Vito". Initially, that business was conducted from premises at Hardy's Road, Waikerie, in South Australia. There is evidence, which has not been rebutted, in the form of a certified copy of the Transport Workers' Award 1983 ("the 1983 Award") as varied to 10 March 1998, that among the respondents to the 1983 Award is "G De Vito, Hardy's Road, Waikerie, 5330." 5 In about November 1995, the respondent entered into a contract with Carlton United Brewery Ltd ("CUB") to distribute CUB's products in Mildura and the surrounding areas. To facilitate the performance of that contract, Mr De Vito took a lease of premises incorporating bond store facilities on the Stuart Highway at Buronga in New South Wales. Mr De Vito also engaged, as manager of the beer distribution business, a Mr Driscoll who had formerly been employed by Carbone's Transport which had previously held the CUB distribution contract for the Mildura district. 6 The respondent also conducted part of his general carrying business from the premises at Buronga. Those aspects of the business were managed, not by Mr Driscoll, but by another employee of the respondent, Mr Carlo Calvi. In about November 1996, the headquarters of both the beer distribution and general carrying activities were transferred from Buronga to premises at Walnut Avenue, Mildura. At all relevant times, the respondent's workforce has been in the vicinity of 100 employees of whom about 60 are drivers. The respondent operates approximately 50 trucks which are made available to drivers and are regarded as their "personal" vehicles. 7 In about May 1997, CUB changed the terms on which payments were to be made to Mr De Vito for beer distributed by him. Those changes made it necessary for him to endeavour to recoup part of the transport costs from publicans and other consignees of CUB products. That, in turn, caused many of those customers to look to other forms of transport for deliveries to them. As a result, the beer distribution part of Mr De Vito's business declined by about half. 8 On 3 July 1997, Mr George and another employee of the respondent, Mr Fisher, became members of the applicant, the Transport Workers Union of Australia ("the TWU"). Mr George has deposed that he considered that the standard remuneration of 22 cents per kilometre plus a "travelling allowance" of $20 per trip which was then being paid by the respondent to his long distance drivers was less favourable than that prescribed by the Transport Workers (Long Distance Drivers) Award 1993 ("the 1993 Award") to which one of the respondents is "Devito C. Hardy's Road, Waikerie, 5330". There were also concerns about the allegedly insecure stowage of empty beer kegs on the respondent's semi-trailers. As a result of these matters, Mr George had invited Mr Fraser, a TWU organiser, to come to Mildura. Mr Fraser met Mr George and two other drivers employed at the Walnut Avenue depot on 3 July 1997 and convened a further meeting of the respondent's drivers to be held on 9 August 1997. At the meeting on 9 August 1997, Mr George outlined the provisions of the 1983 and 1993 awards and compared them with the terms and conditions of employment under which drivers employed by the respondent were then working. That comparison led Mr George and, presumably, others of the respondent's drivers to be dissatisfied with their existing conditions. 9 At the same meeting, a further six or so drivers were recruited into the TWU and Mr George was elected as the TWU delegate for the respondent's long distance drivers. Mr Calvi, the manager of the Walnut Avenue premises, resented what he regarded as the "secrecy" of that meeting. He expressed that resentment to Mr George on 14 August 1997, indicating that some drivers had placed him (George) on a pedestal and that others were accusing him of creating problems in the workforce. Mr Calvi's attitude apparently was that he had always been completely open with the employees under his supervision and that, if they had any issues to raise concerning the conditions of their employment, they should do so openly in his presence. At about this time, Mr Calvi indicated that he was not unhappy that some drivers had joined the Union but expressed the view that they should not try to hide their membership. 10 Later the same day, or on the next day, Mr Calvi again spoke to Mr George and reiterated his concern that disharmony was being created among the Mildura drivers. According to Mr George, Mr Calvi, at about this time, said words to the effect that "I'll hurt everyone in the hip pocket if they want to play games". Mr Calvi has denied saying anything of the sort to Mr George or anybody else. 11 On or about 19 August 1997, two organisers of the applicant ("the TWU") attended at the Walnut Avenue premises and asked to inspect records with a view to satisfying themselves that Mr De Vito was complying with his award obligations to employees. One of those organisers was Mr Fraser. At that time Mr Fraser obtained from the respondent an acknowledgment or commitment dated 20 August 1997 in the following terms: "The Company agrees to pay all employees the current Award rate of pay consistent with the classification of vehicle driven including overtime and the correct rates of pay. Employees engaged in Long Distance operations will be paid as per award for kilometre rate, minimum provisions for unloading and loading of vehicles and overnight allowance all Award Public Holidays, Sick pay and Rostered Days Off." 12 That document was signed by Mr Noonan, the Secretary of the Victorian Branch of the TWU, and Mr De Vito. 13 About a fortnight before the visit by the TWU organisers, the truck habitually driven by Mr George, had been exhibiting mechanical defects which he brought to the attention of Mr Calvi. Mr George had been engaged on 13 April 1997 to work as a permanent long distance driver in the general carrying part of Mr De Vito's business under the supervision of Mr Calvi. A decision was made on 21 August 1997 that Mr George's truck would have to be taken to Waikerie for major repairs. No substitute or alternative vehicle was made available for Mr George. On 21 August 1997, after the decision had been taken to carry out extensive repairs to Mr George's truck, Mr George telephoned the Mildura depot to find out what work had been allocated to him for that day. He was told by Mr Cornell, a foreman, that there was no work for him on that day. Later, on the same day, Mr Calvi telephoned Mr George and told him that his truck would be going to Waikerie for repairs. Mr George thereupon arranged to remove his personal belongings from the truck, which he did late on the same afternoon. At that time, he was given no indication of how long his truck would be off the road or whether he would be provided with alternative work in the meantime. In the result, the only work which he was offered while his truck was under repair was relief driving of other vehicles and some work in the respondent's yard. One offer of relief driving made on 25 August 1997 was for a trip to Melbourne carrying twenty-two pallets to "market". The second offer was of a trip to be made on 29 August with twenty pallets, again to Melbourne, to "market" and "Farm Fresh". It appears that Mr George did not accept either of those offers of relieving work. 14 Mr George did not seek out or offer to perform any alternative work for the respondent but visited the Mildura premises on one or two occasions to ask when the repairs to his truck would be completed. 15 Mr Calvi gave evidence that a safety issue had been raised by another driver, a Mr Bill Thompson, concerning a load of beer kegs which had shifted in transit. It was decided to overcome that problem by placing sheets of ply between the each layer or tier of kegs in a load. Mr Calvi denied that any concern about that issue had been expressed by Mr George or the TWU. He also claimed that he was aware that about five of the respondent's drivers became members of the TWU in August 1997 and that there were still TWU members among the respondent's workforce which caused him "no problem at all". 16 On 22 August 1997, Mr George again enquired of Mr Calvi how long his vehicle would be off the road and was referred to Mr De Vito. Mr George thereupon telephoned Mr De Vito who told him that he had no idea how long the repairs to his vehicle would take. According to Mr George, he then pointed out to Mr De Vito that the 1993 Award, which Mr De Vito had recently agreed to observe, contained a provision for guaranteed minimum earnings whereupon Mr De Vito replied, in effect, "you'd better get that from Mal Fraser". Mr De Vito also said that he was thinking of moving all the long distance trucks from Mildura to Waikerie. That prompted Mr George to ask whether that would mean that drivers would have to travel from Mildura to Waikerie to start trips to which Mr De Vito replied "If that's what they want to do". Mr George then asked whether he was being terminated, to which Mr De Vito responded that he was not terminating anybody. Mr George then said that he would keep in touch with the Mildura depot to learn of progress on his truck. 17 On the following Monday, 25 August, Mr George attended at the Mildura depot where he was told by Mr Calvi that there was no further information about his truck but that he should stay in touch. Also on 25 August 1997, Mr Fraser of the TWU sent to the respondent a facsimile letter in these terms: "As per signed agreement dated 20th August 1997, casuals employed by your Company shall be paid as per the current Award rates of pay which are as follows; Category Normal Time Time & Half Double Time Grade 3 $13.14 $18.07 $24.09 Grade 4 $13.51 $18.58 $24.77 Grade 6 $13.99 $19.24 $25.65