James Lewis Aitken v Construction Mining Energy Timberyards Sawmills Union [1995] IRCA 68

C A T C H W O R D S INDUSTRIAL LAW - Termination of employment - complaint of unlawful termination - union amalgamation - change of employer without notice to employee - redundancy - redundancy payments during the course of employment - cross-action for return of motor vehicle - Industrial Relations Act 1988, S107DC, S 170DB, S170DE, S170EA Maclean v David Jones (Australia) (No. 640 of 1994) D'Angelis v David Jones (Australia) (No. 641 of 1994) JAMES LEWIS AITKEN v CONSTRUCTION MINING ENERGY TIMBERYARDS SAWMILLS UNION No. WI 328 of 1994 Before: Judicial Registrar Tomlinson Place: Perth Hearing Date: 23 February 1995 Judgement Date: 9 March 1995

INDUSTRIAL RELATIONS COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY NO. WI 328 of 1994

Between: JAMES LEWIS AITKEN Applicant And: CONSTRUCTION MINING ENERGY TIMBERYARDS SAWMILLS UNION Respondent Before: Judicial Registrar TOMLINSON Place: Perth Hearing Date: 23 February 1995 Judgement Date: 9 March 1995 MINUTES OF ORDER THE COURT DECLARES 1. That the termination of the Applicant's employment by the Respondent contravened Division 3 of Part VI A of the Industrial Relations Act 1988. THE COURT ORDERS THAT: 1. The Respondent is to pay to the Applicant the sum of Seven Thousand Dollars ($7,000.00). 2. Stay of 21 days. NOTE: Settlement and entry of Orders is dealt with by Order 36 of the Industrial Relations Rules. INDUSTRIAL RELATIONS COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY NO. WI 328 of 1994

Between: JAMES LEWIS AITKEN Applicant And: CONSTRUCTION MINING ENERGY TIMBERYARDS SAWMILLS UNION Respondent Before: Judicial Registrar TOMLINSON Place: Perth Hearing Date: 23 February 1995 Judgement Date: 9 March 1995 REASONS FOR DECISION By application dated 22 August 1994 the applicant sought an order that the termination of his employment by the respondent contravened Division 3 of Part VIA of the Industrial Relations Act 1988 ("the Act"). Further the applicant sought reinstatement, compensation and such other orders as would put him in the same position as if the employment had not been terminated. By an affidavit also dated 22 August 1994 the applicant deposed: "I believe that my dismissal from the C.F.M.E.U. or the C.M.E.T.U. was harsh and unfair on the grounds that I have done nothing out of order to warrant being let go. The Union has a policy of first on last off which they did not adhere to. There were two people employed after I was employed who should have been put off before me, on these grounds I'm seeking to be reinstated, and union policy should prevail". By Notice of Appearance dated 29 September 1994, the respondent was noted as being Construction, Mining, Energy, Timberyards Sawmills and Woodworkers Union of Australia (WA Branch) (C.M.E.T.U.) (Now C.F.M.E.U.). The Court was advised Mr Schapper appeared conditionally on behalf of the first respondent and that at the time the employment of the applicant ceased he was employed by the Construction, Forestry, Mining and Energy Union, a Federal Union. Mrs Buckley on behalf of the applicant advised the Court that the day before the hearing of the Application (22 February 1994), the respondent gave notice of a cross-claim seeking return of a Holden motor vehicle. Mr Schapper advised the Court that if it was found that a breach of the Act had occurred and that breach was by the first respondent, then the return of the Holden motor vehicle would be pressed. By affidavit dated 11 November 1994 the applicant stated he was 52 years of age and that he commenced employment with the respondent in 1989 as a Union Organiser and that at that time he was made aware of the Union Policy regarding the retrenchment of workers in that a "first on last off" policy applied. The applicant deposed that this was the policy he had always used when dealing with employers. At no time was the applicant made aware that a different policy would apply to him. The applicant stated that at no stage was he given any warning that his employment was in jeopardy or that his work performance was not satisfactory. As a result of his termination the applicant received 4 weeks pay in lieu of notice. At the time of termination the applicant stated that Mr Neil Flynn advised him that the respondent would arrange a job for him at a building site in the capacity of a carpenter and the applicant stated that no effort had been made in that regard. The applicant in his affidavit sought leave to extend the time of filing his application. By affidavit dated 31 January 1995, Mr Neil Flynn as Secretary of the Construction, Mining, Energy, Timberyards, Sawmills and Woodworkers Union of Australia - Western Australian Branch ("the State Union") advised the Court that the Construction, Forestry, Mining, Energy Union ("the Federal Union") is divided into Divisions and that one of those Divisions is the ATAIU Division which incorporated all those members of the Federal Union who were employed in the timber industry. Further, the affidavit stated that in 1993 an agreement was reached between the State Union and a branch of the Federal Union whereby the State Union was to subordinate itself to the decision making processes of the ATAIU Division of the Federal Union. From July 1993 onwards the WA Branch of the ATAIU Division of the Federal Union and its officers was effectively the union for timber workers in the metropolitan area of Perth in lieu of the State Union. The affidavit of Mr Flynn further stated inter alia, that prior to the events of July 1993, the State Union employed Messrs Todd, Cooke and the applicant to organise the timber industry and to run the Forest and Forest Products Division of the State Union. Mr Flynn went on to depose that as the events of amalgamation occurred Messrs Todd, Cooke and the applicant acted for all purposes as officers and employees of the ATAIU Division of the Federal Union but continued to be paid by the State Union. Subsequently the WA Branch of the ATAIU Division went into decline and losses were incurred. On 23 July 1994 at a meeting held at the offices of the State Union attended by representatives of the bodies involved, the decision was made that the applicant would be terminated. Further, according to Mr Flynn, it was agreed by all those present at the meeting that Mr Todd would resign and be replaced by someone else. Mr Rick Todd was present at that meeting. In response to the affidavit of the applicant Mr Flynn deposed the policy of "last on first off" was not applicable to the employees of the State Union and that "performance" was irrelevant to the termination. Further, the applicant was offered personal use of a State Union motor vehicle for an unspecified period and Mr Flynn deposed the applicant retained this vehicle. Mr Flynn was of the view that the State Union had since 1 July 1993 acted as agent for the Federal Union and that the State Union was entitled to be indemnified in respect of any liability the Court may find. Mr Flynn deposed that the applicant, like all Union Organisers, accrued redundancy or severance pay at the rate of $20.00 per week and from 4 April 1994 at the rate of $40.00 per week. Whilst that money is referred to as "redundancy pay" the Court heard evidence that Union Organisers were entitled to be paid their accrued entitlement at any time during the employment. In his further affidavit of 22 February 1995 the applicant stated that he commenced employment with the State Union in 1989 and that he was employed first in the Construction Division of the Respondent which was then known as the CMEU. After a period of some 3 years the applicant was asked to be responsible for a variety of workers who did not easily fall into any existing divisions of the CMEU but who fell into the General Division. The applicant deposed that the General Division was part of the Construction Division and that during the time that the applicant worked in the General Division to his knowledge his wages were always costed to the Construction Division. The applicant apparently was never advised that his wages would be costed to the Forestry Division. The applicant denied that he was personally offered use of a vehicle by the respondent and stated that when the ATAIU Forestry Division moved out of the respondent's premises it retained the vehicle that he had been previously using. THE EVIDENCE Under cross-examination the applicant advised the Court that in his affidavit he had alleged the respondent had failed to obtain another position for him on a building site as the respondent had not contacted him at home with any job situations after the employment had ceased. I am of the view that although the offer to search for alternate employment was made at the point of termination the fact that the respondent failed to actively contact the applicant does not amount to a failure to fulfil an undertaking on the part of the respondent. As events unfolded, the applicant found alternate employment for himself elsewhere and so I am of the view that that allegation lacks substance. The applicant advised the Court that Mr Flynn gave him the sack and that he was called into Mr flynn's office and told: "We are going to have to let you go". At that point the job on the building site was discussed. The applicant was handed a letter dated 2 August 1994 which stated as follows: "CONSTRUCTION, MINING, ENERGY, TIMBERYARDS, SAWMILLS AND WOODWORKERS' UNION OF AUSTRALIA (WA Branch) CMETUnion 2/08/94 Jim You are aware that for some time now the Forestry Division has been subject to a decrease in membership and therefore income. The division has gone from a membership of 1400 in 1992 to a figure of some 800 to-day. The Division has been subsidised by the resources of the Construction Division for a number of years now and that position can no longer be sustained due to the downturn in the construction industry which has seen the Construction Division make a painful readjustment to it's altered circumstances which included, amongst other things, letting people go. Whilst the Forestry Division maintains it's current level of membership it is essentially a one person division with the necessary administrative support. The A.T.A.I.U. have decided that they will determine who that person will be and I understand that person to be Paul Martinello. Regretfully I've got to inform you that under these circumstances I am obliged to terminate your employment. You are able to receive four weeks notice (sic) in lieu of notice. I would like to thank you for the work you have done, under difficult circumstances, for the Union and only wish that it could have been otherwise. Regards, NEIL FLYNN State Secretary".