FEDERAL COURT OF AUSTRALIA

The Australian Workers Union v Johnson Matthey (Aust) Ltd [2000] FCA 360

INDUSTRIAL LAW – industrial action by employees – whether protected action – dismissal and threatened dismissal of employees – whether dismissal and threatened dismissal by respondent employer constitutes contravention of s170MU and/or s298K of Workplace Relations Act 1996 (Cth) – whether respondent employer offered employees inducements to resign from registered organisation in contravention of s298M of Workplace Relations Act 1996 (Cth) - whether conduct alleged by the applicant made out

Workplace Relations Act 1996 (Cth) ss 170MM, 170MO, 170MU, 298K, 298L, 298M, 298V

Davids Distribution Pty Ltd v National Union of Workers (1999) 91 FCR 463 distinguished

Burswood Resort (Management) Ltd v Australian Liquor Hospitality and Miscellaneous Workers Union [1999] FCA 1443 distinguished

Ryde-Eastwood Leagues Club Limited v Taylor (1994) 56 IR 385 referred to

Walplan Pty Ltd v Wallace (1985) 8 FCR 27 followed

Patrick Stevedores Operations No 2 Pty Ltd & Ors v Maritime Union of Australia & Ors (1988) 195 CLR 1 applied

Jones v Thiess Bros (1977) 30 FLR 422 followed

THE AUSTRALIAN WORKERS UNION v JOHNSON MATTHEY (AUST) LTD

(ACN 004 146 838)

V 425 OF 1999

MARSHALL J

MELBOURNE

31 MARCH 2000

THE COURT ORDERS THAT:

1.      It is declared that the respondent contravened s170MU(1)(a) of the Workplace Relations Act 1996 (Cth) (“the Act”) by:

(a)  dismissing Mr Mrmacoski,

(b)  injuring Mr Mrmacoski in his employment, and

(c)  altering the position of Mr Mrmacoski to his prejudice;

wholly or partly because Mr Mrmacoski proposed to engage in protected action.

2.      It is declared that the respondent contravened s170MU(1)(a) of the Act by:

(a)  dismissing Mr Naumovski,

(b)  injuring Mr Naumovski in his employment, and

(c)  altering the position of Mr Naumovski to his prejudice;

wholly or partly because Mr Naumovski proposed to engage in protected action.

3.      It is declared that the respondent contravened s298K(1) of the Act by:

(a)  dismissing Mr Mrmacoski,

(b)  injuring Mr Mrmacoski in his employment, and

(c)  altering the position of Mr Mrmacoski to his prejudice;

for reasons which included a reason that Mr Mrmacoski was a member of the applicant.

4.      It is declared that the respondent contravened s298K(1) of the Act by:

(a)  dismissing Mr Naumovski,

(b)  injuring Mr Naumovski in his employment, and

(c)  altering the position of Mr Naumovski to his prejudice;

for reasons which included a reason that Mr Naumovski was a member of the applicant.

5.      It is declared that the respondent contravened s298K(1) of the Act by threatening to dismiss Mr Scicluna for reasons which included the reason that he was a member of the applicant.

6.      The application otherwise be dismissed save for any question relating to compensation or penalty.

7.   The application be adjourned to not before 11.30 am on 27 April 2000 to deal with any submissions regarding compensation and penalty issues.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     On 29 July 1999, the applicant, The Australian Workers Union (“the Union”) made application pursuant to s170NF(5) and s298T of the Workplace Relations Act 1996 (Cth) (“the Act”) in respect of certain conduct which it alleged had been engaged in by the respondent, Johnson Matthey (Aust) Ltd (“the Company”). The sections of the Act alleged to have been contravened by the Company are ss170MU, 298K and 298M of the Act.

Factual Background

2                     The Union is an organisation of employees registered under the Act. The Company employs persons eligible to be members of the Union at premises in Settlement Road, Thomastown, an industrial area in the northern suburbs of Melbourne.

3                     During February 1999 some employees of the Company met with an organiser employed by the Union, Mr Mastrandonakis, to discuss the prospect of the Union representing employees of the Company and raising with the Company issues of concern to employees.

4                     The idea of contacting the Union had its genesis in a discussion involving Mr Scicluna and two other people who were then employed by the Company. The first two meetings took place in a park directly across the road from the Company’s premises. The first of those meetings occurred on or about 17 February 1999. About 30 employees of the Company attended. They discussed a range of matters with Mr Mastrandonakis including  occupational health and safety and wages issues. Mr Mastrandonakis provided attendees at the meeting with application for membership forms to facilitate their joining of the Union.

5                     At the second meeting, Mr Scicluna was elected as shop steward. After the meeting he informed Mr Guy of his election. Mr Guy is the manager of the Company’s products division. Mr Guy responded by saying to Mr Scicluna words to the following effect:

“You know that the union will not come in here.”

6                     At or about the same time, that is February 1999, Mr Scicluna posted a notice on the Company’s noticeboard advising of a meeting of members of the Union. After he did so he was approached by Mr Guy and asked who put the notice up. When Mr Scicluna replied that he had put the notice up, Mr Guy said words to the following effect:

“Don’t fucking do it again.”

7                     On 18 March 1999, pursuant to s170MI(2) of the Act, the Union gave the Company notice of its intention to try to make an agreement with the Company under Div 2 or 3 of Pt VIB of the Act and to have such agreement certified under Div 4 of Pt VIB of the Act. A catalogue of claims constituting matters that the Union proposed should be dealt with by the agreement were set out in the notice in accordance with s170MJ(c) of the Act.

8                     Unsuccessful negotiations were conducted between Company and Union representatives concerning the Union’s claims in May and June 1999.

9                     On 23 June 1999 a meeting of employees occurred at the Company’s premises. Some 40 to 45 employees of the Company attended the meeting. Mr Mastrandonakis addressed the meeting. He referred to the fact that negotiations had stalled. Mr Scicluna also addressed the meeting. He recommended that industrial action should be taken to show the Company “that we were serious in relation to those negotiations”. Mr Mastrandonakis and Mr Scicluna suggested that a vote be taken on whether a strike should take place. The persons attending the meeting voted unanimously in favour of strike action.

10                  In or about mid-June 1999, Mr Scicluna went to the Bi-metal department of the Company to arrange for certain paperwork to be signed by a leading hand. When in the Bi-metal area, Mr Scicluna reminded two employees, who he thought were members of the Union, that a Union meeting was to be held that day. Subsequently, Mr Guy interrogated Mr Scicluna about going to the Bi-metal area to talk “about union issues”. Although Mr Scicluna was in the habit of going outside his normal work area for paperwork reasons, if necessary, Mr Guy admonished Mr Scicluna with words to the following effect:

“You are not allowed to leave your work area without permission.”

11                  On 25 June 1999 the Union served on the Company a Notice of Intended Industrial Action as required by s170MO of the Act. The notice was in the following form:

“Notice is hereby given that officers and employees of The Australian Workers Union, Victorian Branch employed by you intend to organise and engage in industrial action in accordance with the provisions applying to “protected action” set out in s.170ML of the Workplace Relations Act 1996.

The particulars of this notice are as follows:

(a)               industrial action of the kind described in paragraphs (a) and/or (d) of the definition of “industrial action” in section 4 of the Act and in particular the failure or refusal by your employees to attend and/or perform work; and

(b)               industrial action of the kind described in paragraphs (b) and/or (c) of the definition of “industrial action” in section 4 of the act and in particular a ban, limitation or restriction on the performance of work or an acceptance of, or offering for work.

For the purposes of facilitating the ban, limitation and restriction on performance of work described in paragraph (b) above, a picket outside your premises will be maintained to encourage persons performing work not to do so and, where appropriate, suppliers will be encouraged not to facilitate the performance of work by the deliver of goods to the company.

The industrial action will commence on Thursday 1^st July, 1999 at 6am.”

12                  Strike action was taken by employees of the Company on 1 and 2 July 1999.

13                  Further negotiations between the Union and the Company occurred from 5 July 1999 in the Australian Industrial Relations Commission (“the Commission”). Further meetings occurred on 7 and 13 July. On 13 July 1999, Ms Krause, the Human Resources Manager of the Company, stated that the Company was not willing to negotiate in respect of any of the Union’s claims.

14                  On 13 July 1999 the Union sent the Company a second notice of intention to engage in industrial action. The notice was in the same form as the earlier notice save that the final paragraph stated that:

“The industrial action will commence on Monday 19 July, 1999 at 6.00 am.”

15                  On 14 July 1999 a meeting attended by in excess of 30 and up to 50 employees of the Company voted unanimously to take industrial action, on and from 19 July 1999. The Union organised a picket of the Company’s premises for the duration of the strike which concluded on 9 August 1999.

16                  At about 1.30 pm on Thursday 15 July 1999, Mr Mrmacoski was working as a casual billet saw operator. He was approached by his supervisor, a Mr Howard, and was told that he was being “laid off”. He finished what he was doing at work, including “cleaning up” and stayed at work doing so until about 3.30 pm. He did not work on Friday 16 July 1999 and was not paid for that day. On 19 July 1999, Mr Howard telephoned Mr Mrmacoski to inform him that work was available. Mr Mrmacoski told Mr Howard that he would not cross the picket line.

17                  In addition to completing his work, Mr Mrmacoski asked Mr Howard about a separation certificate. Mr Howard replied to the effect that he could not give Mr Mrmacoski a separation certificate. Mr Mrmacoski did not press Mr Howard any further for a separation certificate.

18                  Mr Naumovski was, at all material times, a casual process operator employed by the Company. At about 3.00 pm on 16 July 1999 he attended for work on the afternoon shift. At about 3.30 pm his supervisor, Mr McTaggart, advised him that:

“I have to lay you off because of the industrial action that you know is going on.”

19                  Mr McTaggart also told Mr Naumovski that:

“I have no problem with your work. It’s not my decision. It’s higher up. You have to go now.”

20                  Mr Naumovski attended at the picket line on 19 July 1999. On 20 July 1999 he telephoned Mr McTaggart and requested a separation certificate to enable him to receive unemployment benefits. On 21 July 1999 Mr McTaggart gave Mr Naumovski a separation certificate. The “Employment Separation Certificate” is a standard form document. It provides six possible reasons for termination and also provides boxes where “yes” or “no” may be ticked. Three of the listed reasons enable the particular reason to be set out in a box containing eight lines for comment. Those three listed reasons are as follows:

·        Unsatisfactory work performance.

·        Misconduct.

·        Employee ceasing work voluntarily.

The reason provided in the eight lined box was “EMPLOYEE ON STRIKE”.

21                  Mr Hutcheon is a leading hand in the Company’s silver nitrate plant. He attended the meeting on 14 July 1999 and voted in favour of taking strike action on 19 July 1999.

22                  On 16 July 1999 Mr Chadjilazrou, the Company’s General Manager – Technical/Chemical/Refining Production, approached Mr Hutcheon at about 10.30 am and asked Mr Hutcheon to see him in his office at 11.00 am. Mr Chadjilazrou offered Mr Hutcheon a pay increase over and above what Mr Hutcheon understood to have been offered to the Union. In addition, a severance pay arrangement was offered. Mr Chadjilazrou said to Mr Hutcheon words to the following effect:

“I saw that you voted in favour of the strike. I would like to see you report for work. Management can provide a car for you to cross the picket line. I need a decision from you today.”

Mr Hutcheon advised Mr Chadjilazrou that he would make a decision “on Monday”. Mr Hutcheon telephoned Mr Chadjilazrou on 18 July 1999 and told him he would accept his offer and return to work on 20 July 1999. Mr Hutcheon subsequently changed his mind. Mr Hutcheon telephoned Mr McTaggart on 19 July 1999 and asked him to pass on a message to Mr Chadjilazrou “that, due to the Company’s treatment of John [Naumovski], I will not return to work on 20 July 1999”.

The Causes of Action

23                  Three causes of action are raised in the Union’s application. The first cause of action is a claimed contravention of s170MU of the Act. Section 170MU of the Act provides as follows:

“(1)     An employer must not:

(a)                dismiss an employee, injure an employee in his or her employment or alter the position of an employee to the employee’s prejudice; or

(b)                threaten to dismiss an employee, injure an employee in his or her employment or alter the position of an employee to the employee’s prejudice;

            wholly or partly because the employee is proposing to engage, is engaging, or has engaged, in protected action.

(2)               Subsection (1) of this section does not apply to any of the following actions taken by the employer:

(a)               standing-down the employee;

(b)               refusing to pay the employee where, under the common law, the employer is permitted to do so because the employee has not performed work as directed;

(c)                action of the employer that is itself protected action.

(3)               In proceedings under section 170NF for an alleged contravention of subsection (1) of this section, it is to be presumed, unless the employer proves otherwise, that the alleged conduct of the employer was carried out wholly or partly because the employee was proposing to engage, was engaging, or had engaged, in protected action.”

24                  The second cause of action is a claimed contravention of s298K of the Act. Section 298K(1) of the Act provides as follows:

“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.”

25                  The third cause of action is a claimed contravention of s298M of the Act. Section 298M of the Act provides as follows:

“An employer, or a person who has engaged an independent contractor, must not (whether by threats or promises or otherwise) induce an employee, or the independent contractor, (as the case requires) to stop being an officer or member of an industrial association.”

The s170MU(1)(a) claim

26                  The Union contended that the Company terminated the employment of Mr Naumovski and Mr Mrmacoski wholly or partly because those employees proposed to engage in protected action. The Company contended that the alleged contravention of s170MU of the Act could not be made out because the industrial action which was taken on and from 19 July 1999 was not protected action.

(i)                 The adequacy of the notice

27                  Mr S Wood, of counsel, appeared for the Company. He submitted that the Union’s notice of intended industrial action dated 13 July 1999 failed adequately to disclose the nature of the intended industrial action. Section 170MO(5) of the Act requires that the notice “must state the nature of the intended action and the day when it will begin”. The terms of the notice appear earlier in these reasons for judgment at par [11].

28                  The notice refers generally to industrial action as defined in s4 of the Act but also refers “in particular” to:

·        “the failure or refusal by your employees to attend and/or perform work”; and

·        “a ban, limitation or restriction on the performance of work or an acceptance of, or offering for work”.

29                  The industrial action taken was a strike which commenced on 19 July 1999 at 6.00 am. The notice advised that the action would commence on that day and that time. The notice, despite containing unnecessary verbiage referrable to the definition of industrial action in s4 of the Act, did state the nature of the intended industrial action, that is:

·        A failure or refusal by employees to attend work or perform work.

·        A ban on the performance of work, the acceptance of work or the offering of work.

30                  Any rational reader of the notice would be under no misapprehension that notice was being given of a complete withdrawal of labour by the relevant employees from 6.00 am on 19 July 1999. No doubt it would have been tidier and preferable for the notice simply to refer to “an indefinite strike of all employees who are AWU members”. However, properly understood, that is what it, in effect, conveyed. Senior officers of the Company certainly understood that to be so. A notice in relevantly identical terms was sent to the Company prior to the strike which occurred on 1 and 2 July 1999. Mr McTaggart knew that a strike was to commence on 19 July 1999 when he “laid off” Mr Naumovski on 16 July 1999. Doubtless his instructions came from senior management to lay off casual employees in anticipation of the strike. This is, in effect, what he told Mr Naumovski when he said that, “It’s not my decision. It’s higher up”. Mr Chadjilazrou knew that a strike was to commence on 19 July 1999. Why else would he have said to Mr Serifovski, a leading hand in the Company’s refining department, that:

“What would it take to stop you going on strike?”

Further, why else would he have told Mr Hutcheon that he observed him voting for a strike? Mr Serifovski’s supervisor, Mr Lazarev, knew that a strike was to commence on 19 July 1999. Why else would he have said to Mr Serifovski that if Mr Serifovski and other members of the Union went on strike they “would probably never come back?”

31                  In support of his submission that the notice did not state the nature of the intended industrial action, Mr Wood referred to the dicta of Wilcox and Cooper JJ in Davids Distribution Pty Ltd v National Union of Workers (1999) 91 FCR 463 at 494 to 495 [pars 84 to 90].

32                  At par [87] in Davids, Wilcox and Cooper JJ said:

“We think s170MO(5) was designed to ensure that the industrial disputants who are to become affected by protected action, in relation to which their usual legal rights are significantly diminished, are at least able to take appropriate defensive action.”

33                  At [par 89] their Honours held that a notice which referred only to “bans and rolling stoppages” did not sufficiently reveal “the nature of the intended action”. The particularization of a cessation of work, although accompanied by excessive verbiage, did sufficiently reveal, in the circumstances of the instant case, the nature of the intended action. Consequently, the Company was able to take “defensive action”, whether appropriate or otherwise, such as the “laying-off” of casual employees.

34                  Mr Wood also relied on the judgment of Carr J in Burswood Resort (Management) Ltd v Australian Liquor Hospitality and Miscellaneous Workers Union [1999] FCA 1443. In Burswood, the notice of intended industrial action relevantly provided that:

“The intended action will be in the form of stoppages of work, bans and limitations.”

Carr J held that there was a serious question to be tried whether the notice sufficiently described the nature of the intended action. I note that the notice in that case did not specify any particular industrial action. In this matter, such particularisation is provided albeit preceded by general non-specific language referrable to the definition of “industrial action” provided in the Act.

35                  For the reasons expressed above, in my view Davids and Burswood are distinguishable in the current circumstances. Consequently, I reject the Company’s contention that the notice did not state the nature of the intended action in accordance with s170MO(5) of the Act.

36                  Mr Wood further submitted that the notice failed to give any indication of the length of the intended action. However, as counsel for the Union, Mr P Rozen, submitted, s170MO(5) of the Act contains no such requirement. The notice only need state “the day when it [the intended action] will begin”.

37                  Additionally, Mr Wood contended that the notice referred to “officers and employees of The Australian Workers Union, Victorian Branch employed by you”. He submitted that the industrial action taken was taken by employees who were not members of the Union. Properly construed, it is a nonsense to refer to “officers and employees” of the Union employed by the Company. The Company employs no such persons. The notice, it appears, was really intended to refer to “members of the Union employed by you”. It appears that that is how it was understood by relevant Company officers, given the evidence of Company supervisors and managers already mentioned in these reasons. In any event, the fact that persons who are not members of a Union ultimately engage in industrial action taken by union members, if that be the case, does not mean that the notice does not comply with the requirements of s170MO(5) of the Act. Contrary to Mr Wood’s submissions, I see nothing in Davids to support the Company’s contention. Accordingly I reject it. In any event, the notice does, as Mr Rozen pointed out, refer to “the failure or refusal by your employees to attend and/or perform work” (emphasis supplied).

38                  Consequently, in my opinion, the notice of intended industrial action dated 13 July 1999 complied with the provisions of s170MO(5) of the Act. The Company’s attack on the “protected” nature of the industrial action taken on and from 19 July 1999, in so far as it relies on any perceived deficiency in the form of the notice, has failed.

(ii)               The s170MM issue

39                  Mr Wood submitted that the strike which occurred from 19 July 1999 was not protected action because it was engaged in in concert with and/or organised other than solely by one or more protected persons. Accordingly, he contended that the exception to “protected action” provided by s170MM of the Act applied.

40                  For the purposes of the industrial action which commenced on 19 July 1999, the following persons, save for the exceptions provided in s170MM(1) and (2) of the Act, were protected persons as defined by s170MM(3):

·        The Union.

·        Each member of the Union employed by the Company.

·        Mr Shorten, who signed the notice of intended industrial action.

·        Mr Mastrandonakis, who was the relevant Union organizer.

41                  The primary matter to be determined is whether the strike which commenced on 19 July 1999 was engaged in in concert with persons who were not members of the Union, that is, employees of the Company who had not become members of the Union by 19 July 1999.

42                  Although the Union had organised the strike on 13 July 1999 as is evident from that date appearing on the notice of intended industrial action, a vote to take strike action was not taken by some employees of the company until the next day, 14 July 1999.

43                  The evidence concerning who engaged in strike action on and from 19 July until 9 August is unclear. Mr Wood submitted that Mr Naumovski was not, at the relevant time, a member of the Union. He further submitted that the onus of proof in respect to that issue lay with the Union, the elements of s170MU(1) being required to be made out, other than the employer’s intent, before s170MU(3) of the Act applies.

44                  Mr Wood referred to the lack of evidence that Mr Naumovski made any membership contributions prior to 19 July 1999. In fact, Mr Naumovski gave evidence that he had not paid any Union dues as at 1 October 1999. Mr Naumovski gave evidence that he filled out an application form to join the Union in February 1999 and gave it to a Mr Kiernan, who at the time, together with Mr Scicluna, was a shop steward. The records of the Victorian branch of the Union show that Mr Naumovski purportedly joined the Union on 1 April 1999, although an application for membership form was signed by him and dated 10 March 1999. Those records also show that he would not be charged Union dues until 1 October 1999 and that as at 1 October 1999 he was three quarters in arrears.

45                  Rule 8 of the Union’s rules provides for various methods by which an applicant for membership may seek membership in the Union. They are as follows:

·        By signing an application form.

·        By signing a payroll deduction authority.

·        By signing a Financial Institution Direct Debit Authority which has been approved by the National Executive.

·        By payment of a contribution.

46                  Under Rule 8(2), anyone who has applied to join the Union in any of the abovementioned ways, “shall, except as otherwise provided for in these Rules, be admitted to membership of the Union”.

47                  Accordingly, when Mr Naumovski signed his application form, and that form was received by the Union, he became a member of the Union. The fact that he had made no contributions as at July 1999 simply meant that he was an unfinancial member of the Union but a member of the Union nonetheless. I reject Mr Wood’s submission that the strike which occurred on and from 19 July 1999 was not protected industrial action because of Mr Naumovski’s participation in the industrial action.

48                  According to Mr Wood’s submissions, even if Mr Naumovski was a member of the Union, a breach of s170MU(1) of the Act cannot be established because the strike that occurred on 19 July 1999 was joined in by persons who were not members of the Union. I do not accept those submissions for the following reasons.

49                  Where it is alleged that a breach of s170MU(1) of the Act has occurred by reference to an employee’s proposal to engage in protected action, it does not matter that the proposed protected action when later engaged in did not, in fact, become protected action because a non-protected person happened to join in in the action. As at 14 July 1999 and until 5.59 am on 19 July 1999, Mr Naumovski and Mr Mrmacoski were proposing to engage in what otherwise, save for any issue arising under s170MM(1)(b) and s170MM(2) of the Act, was until actually taken, unambiguously going to be protected action. It is therefore unnecessary, for current purposes, to determine whether any non-Union workers joined in the action on 19 July 1999. The overt acts alleged to constitute breaches of s170MU(1) of the Act against Mr Mrmacoski and Mr Naumovski occurred prior to 19 July 1999. They occurred on 15 July and 16 July respectively.

50                  It is important to bear in mind that the Union did not allege that Mr Naumovski and Mr Mrmacoski were terminated because they had engaged in protected action but because they proposed to engage in protected action.

51                  Mr Wood further contended that a breach of s170MU(1) of the Act could not be established having regard to s170MM(2). He contended that the industrial action which commenced on 19 July 1999 was organised in concert with non-protected persons. It was submitted that “the employees who attended the meetings to vote in favour of taking the industrial action, organised the industrial action within the meaning of s170MM(1)(b)”. The argument ran that because the meeting on 14 July 1999 which preceded the strike on 19 July 1999 discussed the strike and voted in favour of it and also because non-Union employees attended and voted, the industrial action was not protected. I reject those submissions. The industrial action which commenced on 19 July 1999 was organised by Mr Shorten. On 13 July 1999, one day prior to the 14 July meeting on the Company’s premises, Mr Shorten gave written notice to the Company in the Union’s notice of intended industrial action that, in effect, a strike would commence on 19 July 1999.

52                  The meeting on 14 July 1999, in reality, endorsed the Union’s intention which had already been determined by its branch secretary, Mr Shorten. It is therefore unnecessary to consider who was or was not present at the meeting of 14 July 1999 to determine whether the industrial action which commenced on 19 July 1999 was protected action. Section 170MM(2)(b) of the Act also does not assist the Company because Mr Shorten’s notice is the best evidence of by whom it was intended by the Union that industrial action be engaged in. Properly construed, as previously examined in these reasons, that notice evinced an intention by members of the Union employed by the Company to take the relevant industrial action.

(iii)             Was Mr Naumovski dismissed?

53                  In July 1999, Mr Naumovski was employed on a casual basis. Mr Naumovski was stood down on 16 July 1999. He was paid for his entire shift on that day. He was telephoned on the next working day, the day the strike commenced, and was informed that work was available. Although it would appear from the separation certificate which was provided on 21 July 1999 that Mr Naumovski had been dismissed, the Company disavowed any such dismissal through its paymaster on 23 July 1999. The Company proffered no evidence to explain the separation certificate’s curious wording.

54                  This aspect of the proceeding is not without difficulty. The following, however, appears to be clear:

·        Mr Naumovski was “laid off” on 16 July 1999.

·        Mr Naumovski was offered work on 19 July 1999 and declined to accept that offer.

·        On 20 July 1999 Mr Naumovski asked Mr McTaggart for a separation certificate.

·        Mr McTaggart said he would make enquiries and respond to Mr Naumovski’s request.

·        On 21 July 1999 the certificate was provided. The reason for the termination therein stated could only be sensibly construed as misconduct for being on strike or ceasing work voluntarily by declining the offer of casual employment on 19 July 1999.

55                  The best analysis of the situation appears to me to be as follows:

·        Mr Naumovski was terminated on 16 July 1999 when he was “laid off”. By being “laid off” he was in effect being told not to expect further employment as a casual employee of the Company. The Company changed its mind on 19 July 1999 and offered further work. However, this offer must be seen as given in a somewhat “tongue in cheek” fashion with the strike due to commence on that day.

·        The separation certificate did not reflect the reality and was a device organised through Mr McTaggart, albeit well-intentioned, to attempt to secure unemployment benefits for Mr Naumovski. Mr Naumovski was not terminated at any time after 16 July 1999.

(iv)             Was Mr Mrmacoski dismissed?

56                  Mr Mrmacoski was “laid off” on 15 July 1999. He was not offered work on 16 July 1999. He was offered work on 19 July 1999 but declined it. As a regular casual employee he had an expectation of continuing regular work Monday to Friday. See Ryde-Eastwood Leagues Club Limited v Taylor (1994) 56 IR 385 at 389-399. Accordingly, he was dismissed by the Company on 15 July 1999. He was re-engaged at the conclusion of the strike.

(v)               Authority to dismiss

57                  Mr Wood submitted, in effect, that Mr Howard did not have the authority to dismiss Mr Mrmacoski and that Mr McTaggart did not have the authority to dismiss Mr Naumovski. The Company was best placed to clarify those issues yet stood silent and did not proffer any evidence containing a denial of authority in the two supervisors to take the action they did. There is evidence before the Court of widespread laying off of casual employees on 15 and/or 16 July 1999. It would be extraordinary if the upper tiers of management did not condone such action. It would be even more extraordinary if that were the case and they stood moot. The Company’s submissions on the alleged lack of authority in Mr McTaggart and Mr Howard are devoid of any merit. This is especially so when one considers the evidence that Mr McTaggart told Mr Naumovski that, “It’s not my decision. It’s higher up”.

58                  In accordance with s349(2) of the Act the actions of the supervisors were taken within the scope of their apparent authority. They laid off the casual employees. The casual employees accepted the fact that they were laid off. Management acted on the basis that they were in fact laid off. Some, like Mr Mrmacoski, lost pay as a consequence. The Company has not acted to repay him on the basis that his being laid off was without authority. The Company has acquiesced, in any event, in conduct taken by its supervisors with respect to Mr Naumovski and Mr Mrmacoski and others in like positions on 15 and/or 16 July 1999.

59                  Mr Wood relied on evidence from Mr Naumovski that no supervisor at the Company had authority to dismiss an employee. That evidence was given in cross-examination after a series of questions seemingly designed to create an impression in Mr Naumovski’s mind that only the upper echelons of management could decide to take significant action with respect to employees. However, this line of questioning while a little too subtle (with due respect for Mr Naumovski) cannot force the Court to turn a blind eye to reality. It would defy reality to suggest that a supervisor, in the factual circumstances of this case, would go on a frolic of his own and dismiss an employee without authority. The lack of any surprised reaction or protest when Mr Naumovski and Mr Mrmacoski were “laid off” suggests that they full well knew that the supervisor in each case was acting with the full knowledge and approval of senior management. The acts of the supervisors were “acts done by a corporation’s servant(s) in the course of their employment”. See Walplan Pty Ltd v Wallace (1985) 8 FCR 27 at 37 per Lockhart J.

(vi)             Injury or alteration

60                  The actions of the Company in laying off Mr Naumovski and Mr Mrmacoski, as I have found, constituted dismissals for the purposes of s170MU(1) of the Act. If I am in error about that, it is beyond doubt that Mr Mrmacoski was injured in his employment or had his position altered to his prejudice by being “laid-off”. He was denied a day’s pay and also placed in an insecure position in the three days following his being “laid-off” without continuing employment. Mr Naumovski did not lose pay but was similarly placed in a position of insecurity in respect of his future employment by the Company. This, no doubt, would have caused him anxiety over the weekend of 17 and 18 July 1999. I consider that he was also injured in his employment or had his position altered to his prejudice. In each case of Mr Naumovski and Mr Mrmacoski there was an “adverse affectation of, or deterioration in, the advantages enjoyed by the employee before the conduct in question”. See Patrick Stevedores Operations No 2 Pty Ltd & Ors v Maritime Union of Australia & Ors (1998) 195 CLR 1 at 18 [par 4], per Brennan CJ, McHugh, Gummow, Kirby and Hayne JJ.

61                  Before the conduct in question, the two employees concerned had the advantage of secure and regular casual employment of which they had been deprived by being “laid off”.

(vii)           s170MU issues

62                  I find that on the balance of probabilities each of Mr Naumovski and Mr Mrmacoski was dismissed, injured in his employment and had his position altered to his prejudice. I find also that at the time of the overt acts referred to above, each of the two employees mentioned was proposing to engage in protected action.

63                  In the absence of any evidence by the Company seeking to establish that those overt acts were not taken wholly or partly because those employees were proposing to engage in protected action, s170MU(3) of the Act requires me to presume that the conduct of the Company referred to above was carried out wholly or partly because Mr Naumovski and Mr Mrmacoski were proposing to engage in protected action.

64                  Therefore, a breach of s170MU(1)(a) has been established in respect of Mr Naumovski and Mr Mrmacoski.

The s170MU(1)(b) claim

65                  Mr Rozen submitted that the Company contravened s170MU(1)(b) of the Act in two respects. First, it was submitted that the Company threatened to dismiss Mr Scicluna because Mr Scicluna was proposing to engage in protected action. Second, it was submitted that the Company threatened to dismiss Mr Serifovski because he was proposing to engage in protected action. It was also alleged that each of Mr Scicluna and Mr Serifovski was threatened with injury in his employment or an alteration of his position to his prejudice because he was proposing to engage in protected action.

(i)                 Mr Scicluna

66                  The evidence said to constitute the breach of s170MU(1)(b) of the Act in respect of Mr Scicluna was as follows:

·        Mr Scicluna was a shop steward.

·        Mr Scicluna posted notices prepared by the Union on the Company’s noticeboard advising of a meeting of Union members.

·        Mr Guy told Mr Scicluna not to post such notices.

·        Mr Guy told Mr Scicluna after a Union meeting in June 1999 that if the Union members went on strike they would not have jobs when they returned to work.

·        Mr Guy asked Mr Scicluna if he had been speaking about Union issues to employees in the Bi-metal Department.

67                  I do not consider the comments made by Mr Guy to constitute a threat to dismiss or injure or alter the position of Mr Scicluna because Mr Scicluna proposed to engage in protected action. In February 1999 no protected action was contemplated by the Union. The notice initiating the bargaining period was not sent until 18 March 1999. I also do not consider Mr Guy’s comments about Mr Scicluna’s discussion about Union matters to employees in the Bi-metal department to bear upon any proposal to take protected action.

68                  A more difficult matter to resolve is whether Mr Guy’s comment to Mr Scicluna following the meeting on 23 June 1999 amounted to a relevant threat to Mr Scicluna because Mr Scicluna was proposing to engage in protected action. However, in my view, it is significant that prior to 25 June 1999 the Company had received no notice of intended industrial action. Consequently, on 23 June 1999 Mr Guy would not have been aware that protected action by the Union’s members was in contemplation. The mere vote to strike does not carry with it the certainty that a notice of intended industrial action will follow. That is a matter for the relevant Union official or officials to determine as Mr Shorten did on 25 June 1999. I therefore reject the submission of Mr Rozen on behalf of the Union that s170MU(1)(b) of the Act was breached by the Company in respect of Mr Scicluna.

(ii)               Mr Serifovski

69                  Mr Rozen submitted that the Company contravened s170MU(1)(b) of the Act by Mr Serifovski’s supervisor, Mr Lazarev, telling Mr Serifovski that if he and other members of the Union went on strike on 19 July 1999 they “might not come back”. The comment by Mr Lazarev was made sometime during the week commencing 12 July 1999. The evidence was no more precise than that. It is possible that the comment pre-dated the notice of intended industrial action which was sent on 13 July 1999. Further, Mr Lazarev’s comment is capable of being construed as his opinion concerning what “might” happen if the strike went ahead. It appears to me to have been a conversational throw away line rather than a threat. In any event, it is uncertain, on the evidence, whether the comment was made at a time when protected industrial action was proposed. I do not consider the Company to have contravened s170MU(1)(b) of the Act in respect of Mr Serifovski.

The s298K Claims

70                  The Union submitted that the dismissal of Mr Mrmacoski and Mr Naumovski on 15 and 16 July 1999 respectively amounted to contraventions of s298K of the Act. It was also submitted that a number of other employees were threatened with dismissal in or about mid June 1999 and mid July 1999.

(i)                 Mr Naumovski and Mr Mrmacoski

71                  It was first submitted that Mr Naumovski and Mr Mrmacoski were dismissed because they were members of the Union. Section 298K of the Act prohibits an employer, inter alia, from dismissing an employee because at least, in part, the employee is a member of the Union. It need not be the only reason for the dismissal.

72                  It is for the Union to prove on the balance of probabilities the following matters:

·        The employee was a member of the Union.

·        The employee was employed by the Company.

·        The employee was dismissed by the Company.

Each of these matters have been established in the course of earlier aspects of these reasons for judgment. It therefore fell to the Company pursuant to s298V of the Act to show that the employees were not dismissed for reasons which included a reason that they were members of the Union. See Jones v Thiess Bros Pty Ltd (1977) 30 FLR 422 at 426. The Company did not attempt to discharge that onus.

73                  Accordingly, I am satisfied that the Company contravened s298K(1) of the Act by dismissing Mr Naumovski and Mr Mrmacoski for reasons that included a reason prohibited by s298L(1)(a) of the Act. Although Mr Rozen also relied on s298L(1)(l) and (n), it is unnecessary for the Court to consider those prohibited reasons as it is sufficient for the Union to rely on one prohibited reason for a relevant contravention to be established. I also consider that the actions of the Company in respect of Mr Naumovski and Mr Mrmacoski amounted to an injury to those employees in their employment and an alteration to the position of those employees to their prejudice. Breaches of s298K(1)(b) and (c) have also therefore been established.

(ii)               Alleged threats to dismiss other employees in June and July 1999

74                  In his written submissions Mr Rozen stated as follows:

“The conduct pleaded that is said to constitute a contravention of s298K is outlined in paras 1-15 and 19-24 of the SOC. All of the relevant evidence in support of the allegations is canvassed above in respect of the claims made under s.170MU(1)(b).

The prohibited reasons are those in ss298L(1)(a), (l) and (n). There is evidence that is sufficient to attract the presumption in s.298V that the conduct was engaged in for one or more prohibited reasons or for reasons that included one or more prohibited reasons. The respondent called no evidence to overturn that presumption.”

75                  Nothing in paragraphs 1 to 15 of the Statement of Claim relates to employees other than Mr Naumovski and Mr Mrmacoski in respect of conduct alleged to contravene s298K of the Act. The alleged threats to other employees can only sensibly be understood as threats to Mr Scicluna and Mr Serifovski which were the same threats relied upon for the purposes of the s170MU(1)(b) claim.

(a)               Mr Scicluna

76                  Apart from one matter to which I will shortly come, I do not consider any of the comments made by Mr Guy to Mr Scicluna which are referred to at par [66] above to amount to any overt act prohibited by s298K of the Act. I am more troubled by Mr Guy’s comment that if Union members went on strike they would not have jobs when they returned. In my view, Mr Guy intended to convey to Mr Scicluna that if he went on strike he would be dismissed. The Company did not call evidence to seek to show that Mr Guy’s threat to Mr Scicluna was made for reasons which did not include a prohibited reason as identified in s298L(1)(a), (l) or (n) of the Act. Whilst I have some doubts whether a breach of s298L(1)(l) or (n) could be established, I have less trouble with respect to s298L(1)(a) of the Act’s application. I find, in the absence of rebutting evidence of the nature referred to in s298V of the Act, that the Company contravened s298K(1) of the Act by threatening to dismiss Mr Scicluna for reasons which included the reason that he was a member of the Union.

77                  Mr Wood submitted that he was entitled, for the purposes of s298V, to rely on the Union’s evidence that Mr Guy was concerned about his own job in making his comment to Mr Scicluna. But even if that was a reason for his threat to Mr Scicluna it does not foreclose a reason prohibited by s298L(1)(a) as also being an additional reason for the threat. No submission was made that the comments made by Mr Guy to Mr Scicluna were devoid of authority.

(b)        Mr Serifovski

78                  I do not consider the comment of Mr Lazarev to Mr Serifovski in July 1999 that he, Mr Serifovski, “might not come back” if he went on strike to be sufficiently definite and certain to constitute a threat to Mr Serifovski. I refer to, without repeating, my analysis of Mr Lazarev’s comment at para [69] above. I consider that no breach of s298K(1) of the Act has been committed by the Company regarding Mr Serifovski.

The s298M claims

79                  The Union contended that Mr Hutcheon, Ms Proud and Mr Serifovski were offered inducements by the Company to resign from the Union in contravention of s298M of the Act.

80                  Mr Hutcheon was told he would receive better conditions by the Company through Mr Chadjilazrou if he decided to cross the picket line. Although Mr Hutcheon’s position in the Union as a member may have been untenable if he crossed the picket line, in my view, the inducement was not designed to have Mr Hutcheon resign as a member of the Union but to have him return to work whether as a member of the Union or not. It may have been different if the inducements offered to Mr Hutcheon had been more widespread as part of a campaign to de-unionise the workforce. I reject the submission of Mr Rozen that in making its offer to Mr Hutcheon, the Company contravened s298M of the Act.

81                  It was also submitted that Ms Proud was offered an inducement to resign from the Union as a consequence of:

·        A comment that she was wasting her money paying union dues.

·        An invitation to attend a management forum.

82                  I consider neither aspect of the Company’s conduct to amount, in the circumstances, to an inducement to Ms Proud by threats or promises or otherwise to resign from the Union. The first comment was a mere expression of opinion. The second invitation was not, of itself, relevant to any proposal that Ms Proud resign from the Union.

83                  Mr Rozen submitted that the Company contravened s298M of the Act in respect of Mr Serifovski by Mr Chadjilazrou’s question to him about why he was in the Union. To question a Union member regarding why that person joined the Union is not of itself evidence of an inducement to the member to resign. Although Mr Chadjilazrou asked Mr Serifovski to come to work and cross the picket line, he did not ask him to resign or otherwise induce Mr Serifovski to resign. On the contrary, Mr Chadjilazrou’s comment that “you have made your point by joining the Union” is consistent with an attitude that the Company was not opposed to Mr Serifovski’s membership of the Union, but was opposed to his going on strike and his participation in the picket.

84                  I am not satisfied that any alleged breach of s298M of the Act has been established.

Relief

85                  I do not consider it appropriate to now make any final orders regarding penalties and compensation. I prefer at this stage to make declaratory orders recording the contraventions of the Act which I have found to occur. This approach permits submissions on remaining matters to be considered in light of these reasons. I will adjourn the further hearing of the proceeding to deal with final orders on 27 April 2000 at not before 11.30 am.

Orders

86                  The Court makes the following orders:

1.      It is declared that the respondent contravened s170MU(1)(a) of the Workplace Relations Act 1996 (Cth) (“the Act”) by:

(a)  dismissing Mr Mrmacoski,

(b)  injuring Mr Mrmacoski in his employment, and

(c)  altering the position of Mr Mrmacoski to his prejudice;

wholly or partly because Mr Mrmacoski proposed to engage in protected action.

2.      It is declared that the respondent contravened s170MU(1)(a) of the Act by:

(a)  dismissing Mr Naumovski,

(b)  injuring Mr Naumovski in his employment, and

(c)  altering the position of Mr Naumovski to his prejudice;

wholly or partly because Mr Naumovski proposed to engage in protected action.

3.      It is declared that the respondent contravened s298K(1) of the Act by:

(a)  dismissing Mr Mrmacoski,

(b)  injuring Mr Mrmacoski in his employment, and

(c)  altering the position of Mr Mrmacoski to his prejudice;

for reasons which included a reason that Mr Mrmacoski was a member of the applicant.

4.      It is declared that the respondent contravened s298K(1) of the Act by:

(a)  dismissing Mr Naumovski,

(b)  injuring Mr Naumovski in his employment, and

(c)  altering the position of Mr Naumovski to his prejudice;

for reasons which included a reason that Mr Naumovski was a member of the applicant.

5.      It is declared that the respondent contravened s298K(1) of the Act by threatening to dismiss Mr Scicluna for reasons which included the reason that he was a member of the applicant.

6.      The application otherwise be dismissed save for any question relating to compensation or penalty.

7.   The application be adjourned to not before 11.30 am on 27 April 2000 to deal with any submissions regarding compensation and penalty issues.

Associate:

Dated:              31 March 2000