Barbaro v Australian Manufacturing Workers Union [1996] IRCA 286

DECISION NO: 286/96 C A T C H W O R D S

INDUSTRIAL LAW - # INDUSTRIAL RELATIONS ACT 1988, ss.170DE, 170DC, 170EE BARBARO -V- AUSTRALIAN MANUFACTURING WORKERS UNION No. SI96/1017 JUDICIAL REGISTRAR: L FARRELL PLACE: ADELAIDE DATE: #

IN THE INDUSTRIAL RELATIONS COURT ) OF AUSTRALIA ) SOUTH AUSTRALIA DISTRICT REGISTRY ) No. SI96/1017 B E T W E E N: FRANK BARBARO Applicant AND AUSTRALIAN MANUFACTURING WORKERS UNION Respondent MINUTES OF ORDER BEFORE: JUDICIAL REGISTRAR L FARRELL PLACE: ADELAIDE DATE: # THE COURT ORDERS THAT: 1. # NOTE: Settlement and entry of Orders is dealt with by Order 36 of the Industrial Relations Court Rules

IN THE INDUSTRIAL RELATIONS COURT ) OF AUSTRALIA ) SOUTH AUSTRALIA DISTRICT REGISTRY ) No. SI96/1017 B E T W E E N: FRANK BARBARO Applicant AND AUSTRALIAN MANUFACTURING WORKERS UNION Respondent BEFORE: JUDICIAL REGISTRAR L FARRELL PLACE: ADELAIDE DATE: # REASONS FOR JUDGMENT This is an application pursuant to Section 170EA of the Industrial Relations Act. The Applicant claims that his employment was terminated unlawfully by the Respondent. The Respondent is a federal union. Following amalgamations over the past few years it has 5 divisions. Each division has a federal structure, but within each state the day to day management of the union is handled by the state secretary under the direction of the state council. Each state is regarded as a separate business unit. In South Australia the work of the union is largely carried out by elected union officials and organisers. At the time of the Applicant's dismissal there were, in addition to support staff, 3 full time officers of the union employed to carry out duties of a specific nature as well as the Applicant who carried out duties of a journalistic nature. The Applicant's employment commenced in early 1992. He was employed by the VBEF two days per week. The most substantial part of his job involved all aspects of publishing the newspaper for the VBEF known as One Voice. The amalgamation between the VBEF and the Australian Metal Workers Union took place in February 1993. Following the amalgamation, the vehicle division, which the VBEF is now known as, continued to operate from premises in Morney Street, Adelaide. The various divisions were not located in one building until December 1993. Sometime in mid 1993 the Applicant's duties were increased to 3 days per week. By December 1994 the Respondent was experiencing financial difficulties. At a national council meeting on 14 December 1994 the union determined that no vacancies were to be filled until an overall structural review was completed. At a special national conference of the union in April 1995 the union made certain determinations regarding it's future publication. The effect of that determination was to end publication of "One Voice" in South Australia. At a state council meeting on 7 June 1995 the Applicant's position was considered in light of the national council decision on publications. By memorandum dated 16 June 1995, Mr Tumbers, the South Australian secretary of the union, requested the Applicant to provide a list of his current duties and advised him that "state council now needs to consider the future nature of your employment". In July and August 1995 various state council and administration committee meetings considered the Applicant's position. At about the same time the publication of "One Voice" ceased. In late September 1995 Mr Tumbers, Mr Noack, the vehicle division state secretary and Mr Campbell, the Federal Secretary met. Mr Tumbers gave evidence that Mr Campbell made it clear that the financial resources to be made available to South Australia would not cover the Applicant in his current position. The Applicant gave evidence that the details of that meeting were not conveyed to him by Mr Noack or Mr Tumbers. Mr Tumbers went on leave soon after this meeting. At the meeting of State council on 22 November 1995, during which some heated discussion appears to have taken place, the following decision was made: That in the circumstance of the union being unable to continue the existing duties of F Barbaro or determine satisfactory alternatives, the current contract of employment of F Barbaro be terminated from conclusion of business 22 December 1995. By letter dated 23 November 1995 Mr Tumbers notified Mr Gazzola, secretary of the ASU, the union to which he believed the Applicant belonged, of the state council determination of 22 November 1995, and of his intentions to discuss the matter with the Applicant. On 29 November 1995 the Applicant met with Messrs. Tumbers, Noack and Mowbray. On 30 November 1995 Mr Tumbers wrote to the Applicant. The letter refers to Mr Tumbers' consideration of duties the Applicant may perform, acknowledges the current role of the Applicant and receipt of the Applicant's resume. A further meeting was held on 1 December 1995. On 7 December 1995 Mr Tumbers wrote to the Applicant advising him that having discussed matters raised by the Applicant (about the Applicant's role in the Respondent's national publications) there was nothing that warranted the matter being taken back to state council. A further meeting was held on 18 December 1995. Present at that meeting was Ms Wortley, a union official of the union that the Applicant was a member, Mr Tumbers and Mr Mowbray. Further matters were raised by the Applicant and his union representative. By letter dated 20 December 1995 Mr Tumbers acknowledged receipt of further materials from Ms Wortley, but noted the material did not go beyond the areas previously canvassed or considered. The letter concluded by stating that the Applicant's "...employment will effectively terminate on 29 December 1995, with duties concluding from the close of business on Friday, 22 December 1995". The state council determination of 22 November 1995 impliedly authorised Mr Tumbers to proceed to terminate the Applicant's employment. Formal notice of termination of his employment was provided to the Applicant by letter from Mr Tumbers on 22 December 1995. There was not at any time any complaint about the Applicant's performance or conduct. The Applicant argued that his employment was terminated unlawfully on 3 grounds: 1. The Respondent did not consult with the Applicant before the determination of 22 November 1995, even though there was a clear obligation to consult with the Applicant following the meeting between Messrs. Tumbers, Campbell and Noack in late September 1995. 2. The matters that were raised after 22 November 1995 by the Applicant during discussions were never considered by State Council. 3. The Respondent failed to make any redundancy payment to the Applicant. 1) Whilst I accept that it would have been preferable for the Respondent to advise the Applicant of its position and hold discussions with him after the meeting between Tumbers, Campbell and Noack in late September 1995, I do not accept that the failure of the Respondent to do so render the termination of the Applicant's employment unlawful. In my view the consultation process following the State council meeting on 22 November 1995 cures the Respondent's failure in that regard. 2) I do not accept the Applicant's argument that the failure of the State council to consider the matters put to the State secretary renders the termination of the Applicant's employment unlawful. In my view a requirement that matters of such a nature should be considered by State council would render the carriage of the business of the union lumberingly slow. I do not accept the suggestion in the evidence of the Applicant that the matters put by him to Mr Tumbers were not considered in a bona fide way by Mr Tumbers. The fact that Mr Tumbers disagreed with what the Applicant had said, that he did not find a way to keep Mr Barbaro employed do not go towards proving that the Applicant was unfairly treated. I preferred the evidence of Mr Tumbers and Mr Mowbray in so far as the events following 22 November 1995. The final argument pub by the Applicant regarding the failure of the Respondent to make any redundancy payment must succeed. The argument was virtually conceded by the Respondent. I therefore find that the termination of the Applicant's employment was unlawful because of the failure to pay him any severance payment upon the termination of his employment. In my view it is not practicable to reinstate the Applicant. The Respondent no longer wishes to have any journalist type function performed in South Australia. I accept that there was no way to fashion a position for the Applicant given that there were only 3 other non clerical staff, who perform specific professional duties. The Applicant was fortunate to obtain a 6 month contract with another union in January 1996. In my view the compensation payable to the Applicant should consist of the standard award severance payment which would consist of 7 weeks pay. In addition I have allowed a component for the failure of the Respondent to give the Applicant notice. In my view a higher than award payment is warranted where the termination of an Applicant's employment occurs shortly before Christmas. Many decision makers who might employ persons such as the Applicant are away in the period following Christmas. Many businesses are closed. It must be a joyless Christmas experienced by someone given notice, as the Applicant was, shortly before Christmas, presumably having incurred the usual expenses that are incurred at that time. I therefore award compensation to the Applicant equivalent to 13 weeks wages. I certify that this and the preceding # pages are a true copy of the reasons for my judgment. DATE OF HEARING : # FOR THE APPLICANT : # FOR THE RESPONDENT : #