FEDERAL COURT OF AUSTRALIA

Employment Advocate v National Union of Workers [2000] FCA 710

INDUSTRIAL LAW – freedom of association under Part XA of the Workplace Relations Act 1996 employee declines to join union – conduct by officer of union – officer in conversation with an employer sought removal of a casual employee from worksite –  “advise, encourage, or incite” – whether advice etc if taken would have injured the employee in his employment or altered the position of the employee to his prejudice – reasons for conduct in contravention of Part XA – whether conduct of officer based upon prohibited reason – whether advice etc if acted upon would have been for a prohibited reason – standard of proof under Part XA – operation of reverse onus provision – whether conduct of officer attributable to union

WORDS AND PHRASES – “advise, encourage or incite”

Workplace Relations Act 1996 (Cth) ss83BA, 298T, 298P(3)(a), 298K(1), 298L(1)(b), 298U, 298A, 298B, 298V, 298Y

Acts Interpretation Act 1901 (Cth) s 15AA

Conciliation and Arbitration Act 1904 (Cth) ss 8, 138(1), 144A, 5(4)

Commonwealth Electoral Act 1918 s 329A

Industrial Relations Act 1988 (Cth)

Industrial Arbitration Act 1940 (NSW) s 95

Crimes Act 1958 (Vic) s 2A

Black’s Law Dictionary (7^th edition)

Glanville Williams’ A Textbook of Criminal Law (2^nd edition)

Australian Commonwealth Shipping Board v Federated Seamen’s Union of Australia (1925) 35 CLR 462 cited

Briginshaw v Briginshaw (1938) 60 CLR 336 considered

Mikasa (N.S.W) Pty Ltd v Festival Stores (1972) 127 CLR 617 referred to

Waugh v Kippen (1986) 160 CLR 156 cited

G v H (1994) 181 CLR 387 cited

Langer v Commonwealth (1995/1996) 186 CLR 302 distinguished

IW v City of Perth (1997) 191 CLR 1 cited

Newcastle City Council v GIO General Limited (1997) 191 CLR 85 cited

Patrick Stevedores No 2 Pty Ltd v Maritime Union of Australia (1998) 195 CLR 1 followed

GTS Freight Management Pty Ltd v TWU (1990) 25 FCR 296 distinguished

Bowling v General Motors Holden (1975) 8 ALR 197 considered

General Motors Holden v Bowling (1976) 12 ALR 605 considered

Ansett v Australian Air Pilots Federation (1989) 95 ALR 211 approved

Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449 cited

Beach Petroleum NL v Johnson (1993) 115 ALR 411 cited

Independent Education of Union of Australia v Canonical Administrators (1998) 157 ALR 531 considered

Maritime Union of Australia v Geraldton Port Authority [1999] 165 ALR 67 considered

David’s Distribution Pty Ltd v National Union of Workers (1999) 165 ALR 550 considered

Bennett v Milliner (1959) 1 FLR 312 considered

Moore v Doyle (1969) 15 FLR 59 referred to

Cuevas v Freeman Motors Ltd (1975) 25 FLR 67 referred to

Roberts v GMH Employees’ Canteen Society (1975) 25 FLR 415 applied

Heidt v Chrysler Australia Ltd (1975) 26 FLR 257 referred to

Wood v Lord Mayor City of Melbourne (1979) 41 FLR 1 distinguished

Linehan v Northwest Exports Pty Ltd (1981) 57 FLR 49 applied

Blair v Australian Motor Industries Ltd (1982) 61 FLR 283 considered

Mayne Nickless Ltd v TWU [1998] FCA 984 considered

National Union of Workers v Davids Distribution Pty Ltd [1998] FCA 1530 (North J) referred to

Employment Advocate v Transport Workers Union and Others [1998] FCA 1646 (Cooper J) considered

CFMEU v Coal and Allied Operations Pty Ltd [1999] FCA 1531 (Branson J) considered

Australian Workers' Union v BHP Iron Ore Pty Ltd [2000] FCA 39 considered

Australian Colleries Staff Association v BHP Coal Pty Ltd [2000] FCA 318, (Spender J) considered

BHP Iron Ore Pty Ltd v Australian Workers Union [2000] FCA 430 distinguished

AMACSU v Ansett Australia Ltd [2000] FCA 441 (Merkel J) considered

AMIEU v G & K O’Connor Pty Ltd [2000] FCA 627 (Gray J)

Squires v Flight Stewards Association of Australia (1982) 2 IR 155 applied

Hammond v Department of Health (1983) 6 IR 371 distinguished

AMIEU v Gilbertson Queensland Pty Ltd (1988) 26 IR 237 considered

Kelly v CFMEU (No. 3) (1995) 63 IR 119 considered and distinguished

Health Services Union of Australia v Tasmania (1996) 73 IR 140 considered

Kimpton v Minister of Education (Industrial Relations Court of Australia, unreported, North J, 22 February 1996) cited

United Firefighters Union of Australia v Country Fire Authority (Industrial Relations Court of Australia, unreported, North J, 24 December 1996) referred to

CEPU v Woodside Heating & Ors Dec 738/97 (Australian Industrial Relations Commission, unreported, decision 738/97, 27 June 1997) considered

Pelly v The Queen (1994) 13 WAR 372 cited

Bulle v the Queen (1984) Tas R 209 cited

Dimozantos v R (1991) 56 A Crim R 345 approved

Childs v Metropolitan Transport Trust (1981) IAS Current Review 946 considered

Taff Vale Railways v Amalgamated Society of Railway Servants [1901] AC 426 referred to

R v Most (1881) 7 QBD 244 referred to

Giblan v National Amalgamated Labourers’ Union [1903] 2 KB 600 referred to

Race Relations Board v Applin [1973] QB 815 cited

EINFELD J

29 MAY 2000

SYDNEY

TABLE OF CONTENTS

Introduction                                                                                                                                1

The case                                                                                                                                     2

The critical conduct                                                                                                                    2

The legislation                                                                                                                            6

The standard of proof                                                                                                                9

“advise, encourage or incite”                                                                                                  11

Injury in employment and alteration of position to employee’s prejudice                            16

Was Hearne an “officer” of the Union?                                                                                 25

Was there injury or prejudicial alteration of position in this case?                                       27

A prohibited reason                                                                                                                  34

Whether the Union is in breach: was Hearne acting in his capacity as an officer of the Union?  45

Conclusion                                                                                                                                52

THE COURT DECLARES THAT:

1.      the respondents’ conduct of 31 January 1997 constituted a contravention of section 298P(3) of the Workplace Relations Act 1996

THE COURT DIRECTS THAT:

1.        the issue of the penalty to be imposed under section 298U(a) of the Workplace Relations Act 1996 be dealt with by the parties by way of written submissions

2.        these submissions include any submissions as to costs

3.        the submissions of the applicant be filed and served by no later than 4 pm on Monday 5 June 2000

4.        the submissions of the respondents be filed and served by no later than 4 pm on Friday 8 June 2000

5.        if oral submissions are also sought, the parties state their reasons in their submissions, for the consideration of the Court

6.        if oral submissions are permitted, they will be heard at 9:45 am on Thursday 22 June 2000.  Not more than one hour in total will be available for oral submissions.  The parties are to confer on a division of this time

7.        any party wishing to call evidence on the issue of the penalty to be imposed should contact my associate within seven days of the date of this judgment.

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

REASONS FOR JUDGMENT

Introduction

1                     The Employment Advocate (the Advocate), an office established by section 83BA of the Workplace Relations Act 1996 (the Act), has applied under section 298T(2)(d) of the Act for a determination that certain conduct of the second respondent (Hearne), claimed by the Advocate to be legislatively imputable to the first respondent (the Union), constituted conduct in contravention of Part XA of the Act.  The Union is an industrial association for the purposes of Part XA.  Hearne was at the relevant time an elected organiser of the Union’s New South Wales Branch.  In formal terms the Advocate alleged that on 31 January 1997 the Union and Hearne advised, encouraged or incited an employer, Adecco Industrial Pty Ltd (Adecco), to injure Daniel Holloway, an employee in its employment, or to alter Holloway’s position to his prejudice, contrary to sections 298P(3)(a) and 298K(1)(b) and (c) of the Act respectively, for a prohibited reason within the meaning of section 298L(1)(b) of the Act, namely, that he was not and did not appear to intend to become a member of the Union.  Holloway was at the relevant time employed as a casual by Adecco, an employment agency contracted to supply labour to David’s Distribution Pty Ltd (David’s) at Fyshwick in the Australian Capital Territory (ACT).  The Advocate sought an order pursuant to section 298U(a) of the Act imposing a penalty upon each of the respondents in respect of this conduct.  The maximum statutory penalty was $10,000 in the case of the Union and $2,000 in the case of Hearne.  All these sections appear in Part XA.

The case

2                     The Advocate’s case was that on the morning in question, Hearne, acting in the capacity of an officer of the Union, had a telephone conversation with Adecco’s area manager, Lenore Routledge, during which he sought to have Holloway removed from David’s Fyshwick Grocery Distribution Centre (the warehouse) and deployed at another site or workplace because of his refusal or unwillingness to join the Union.  The Advocate argued that any such removal would have injured Holloway in his employment with Adecco and prejudicially altered his employment position.

3                     There had been a long-standing ‘closed shop’ at the warehouse, against which there was no statutory prohibition at the time, so that David’s only employed, or gave preference of employment to, Union members.  The unionised employees of David’s objected to Holloway’s employment at the site because he would not join the Union.  Hence, the respondents argued that any conduct suggesting that Adecco relocate Holloway was aimed not at injuring him in his employment, but at preserving the preference agreement and preventing an on-site industrial dispute that appeared imminent.  Asking the Court to construe the provisions of Part XA strictly because they provide for monetary penalties, the respondents further contended that there was insufficient evidence that Holloway would have suffered any negative impact had Adecco acted upon the alleged incitement.  The respondents also disputed that Hearne was acting in his capacity as an officer of the Union at the time, and that the correct Union was named.

The critical conduct

4                     In ascertaining whether section 298 P(3) was contravened, it is, strictly speaking, only the telephone conversation between Hearne and Routledge on the morning of 31 January 1997 that is relevant.  There is no substantial discrepancy between the version offered by either party as to the content of this conversation.  Rather, it is the effect or meaning of the conversation that is in issue. 

5                     In fact a large part of the affidavit evidence on both sides related to events that took place that morning after the critical conversation, yet as the respondents themselves submitted, a ‘breach’ of the provisions is committed “once and for all” at the time of the alleged act of incitement: Roberts v GMH Employees’ Canteen Society (1975) 25 FLR 415 at 418.  Furthermore, as explained later, it is the act of incitement etc and not any response to it that is the proscribed conduct, provided of course that the incitement, if acted upon, would have had the relevant adverse effect and was motivated by a prohibited reason.

6                     In order to place the critical telephone call in context, regard may be had to the surrounding circumstances, at least to the extent that their portrayal is not in dispute, including the content of telephone conversations between Hearne and Routledge before the critical conversation.  On 29 January 1997, Hearne was informed by Lionel Jacobs, the on-site Union delegate at David’s, that Holloway had commenced working at the warehouse but had not joined the Union.  It appears that Jacobs had previously approached Holloway to ask him to consider joining the union, but Holloway had not been interested.  Jacobs testified that he had made these approaches since other members of the union were “interested” in whether Holloway was a union member and were “asking questions” about the matter.  Holloway testified that Jacobs became angry at his decision not to become a member, and that he felt somewhat threatened to join, although Jacobs denied that he “raised his voice” during any of the conversations.  In any case, Holloway was at this point maintaining that he was not interested in joining the Union, although he may have been considering doing so.

7                     Hearne telephoned Routledge shortly afterwards and they had a conversation to the effect that Hearne had heard from his delegate that one of Adecco’s casual workers at David’s was not a Union member, and was seeking to ascertain Adecco’s “stance” on this matter.  On the same day, presumably after his telephone discussion with Routledge, Hearne visited the warehouse where he spoke to Jacobs and met Holloway.  Hearne and Holloway had, on both accounts, an amicable conversation or discussion that revolved around the benefits of union membership.  Hearne wished to impress these benefits upon Holloway and asked him to consider joining.  Holloway explained to Hearne that he was not interested in obtaining membership, saying something to the effect that “I’ve never been in a union.  I’m just a casual here and the union is not interested in casuals.  They are no use to me”.

8                     Hearne telephoned Routledge the next day (30 January 1997) and said that “all hell is about to break loose at David’s”.  Under cross examination, Hearne did not deny, but said that he could not recall, whether he had then said to Routledge words to the effect, as she testified, that he had just spoken to his delegate who had again approached Holloway to become a member, but that Holloway had refused.  Routledge also said, and Hearne did not deny, although he could not recall, that he had then inquired as to her “stance” on the issue in terms that “dependent on your reply, my members are ready to walk”.  Routledge testified to then going to the warehouse to see Holloway that day and said that he was still insisting that he was not about to become a member.  Holloway made no reference to this meeting, in his version of the sequence of events, although Routledge’s affidavit was not challenged on the point.

9                     The critical conversation took place the next morning (31 January 1997).  Routledge’s version of this conversation appears in her affidavit sworn on 23 October 1997:

At approximately 8:30 am on 31 January 1997, I received another telephone call from Mr Hearne. During that telephone call, we had a conversation to the following effect:

He said:        “Pull your casual out of there. He won’t become a member of the   union. I am not tolerating one person disrupting the whole thing.”

I said:           “I have an obligation to my casual. If I pull him out I can be had up  for wrongful dismissal.”

He said:        “You have no obligation to him. Pull him out and stick him somewhere else. If you don’t do this I’ll spread the word for no-one to use [Adecco]. I’ll tell them to use [another employment agency] because they are more co-operative. I’ll tell David’s that they must use [the other agency] as well. I am going to organise to harass David’s daily and isrupt their whole organisation, until you get that man off site.”

I said:           “Whatever happened to freedom of choice,Peter?”

He said:        “There is a democracy out there. All those people don’t want him. I have called a stop work meeting at 10.00 am this morning.”

I said:           “I’ll see you there.”

I then hung up.

10                  Hearne admitted in cross-examination that he did say words to this effect, although he sought to qualify his answer by saying that “there was an explanation why I would’ve said such things” to Routledge.  Similarly, in his affidavit, Hearne stated:

I may well have had a conversation with her [Routledge] around this time in which we discussed moving Daniel Holloway to some other place of employment……[s]uch a conversation would’ve taken place in the context of trying to prevent an industrial dispute erupting with the local members and the solution of Daniel Holloway working somewhere else meant that he would remain in employment and be paid while the potential for an industrial dispute would be avoided. It was in this context that the discussion occurred although I am unable to say on what date or at what time it occurred.

It was not suggested to Routledge in cross examination that her memory or relation of the conversation was incorrect.  Moreover, in their further submissions dated 19 August 1999, the respondents set aside ten paragraphs under the heading, “[A]n analysis of events of 31 January”.  Nowhere in this analysis is the substantive content of the relevant conversation, as related by Routledge, disputed or challenged.  I accept that a conversation took place to the effect alleged by Routledge.

11                  Hearne said that he did not call any stopwork meeting, and there is no evidence of any such meeting.  Nevertheless, on that morning and pursuant to the telephone conversation, Hearne went to the warehouse where a meeting was held at about 10 am between himself (and Jacobs), and Anthony English and Anthony Nichols from David’s, and Roger Beiser and Routledge from Adecco.  The events of that meeting are not of particular relevance, apart from the fact that Hearne announced to all present that Holloway had now agreed to join the Union. 

12                  At some point prior to the 10 am meeting, therefore, Holloway had decided that he would become a member of the Union after all.  Jacobs testified that Holloway approached him on the matter, while Holloway says that it was Jacobs who came to him with Union forms to sign, and that he felt some pressure from Jacobs to do so.  Holloway could not recall exactly when he had told Jacobs that he would sign the membership forms and so join the Union, and although his evidence was not clear as to whether it was on 30 January 1997 or the next day, it must have been at some stage on the morning of 31 January 1997, since “a couple of hours later [after signing the forms]”, Holloway described how he was called into the meeting that had commenced at about 10 am, by which time Hearne and Jacobs had left the meeting.

13                  The lack of clarity as to when Holloway joined the Union opens up the possibility that he may have done so before the critical conversation.  At that time, Holloway either had not yet signed on as a member, which is probable, or Hearne did not know that he had, which is possible, or he did know, and telephoned Routledge anyway, which is unlikely.  As the resolution of this question would have no effect on the conduct that the Act seeks to penalise, which is conduct directed at the employer, the matter does not need to be decided.  Nor is it strictly necessary for a determination of whether the conduct constituted an incitement of the prohibited kind, to find the precise circumstances, as opposed to the fact, of Holloway’s final agreement to join the Union.  The salient fact is that Hearne said the words relied on.  The respondents said that Hearne became involved because “he saw the situation as one which was about to erupt industrially following the failure of the local delegate, Mr Jacobs, in enrolling Mr Holloway in the NUW”.

The legislation

14                  Part XA of the Act is headed “Freedom of Association”.  Section 298A sets out the specific objects of the Part as being (“as well as the objects set out in section 3”):

(a)      to ensure that employers, employees and independent contractors are free to join industrial associations of their choice or not to join industrial associations; and

(b)      to ensure that employers, employees and independent contractors are not discriminated against or victimised because they are, or are not, members or officers of industrial associations.

15                  Section 298P(3) appears in Division 5 of Part XA, dealing with the conduct of industrial associations:

An industrial association, or an officer or member of an industrial association, must not:

(a)   advise, encourage or incite an employer; or

(b)   organise or take, or threaten to organise or take, industrial action   against an employer with intent to coerce the employer

to take action in relation to a person that would, if taken, contravene section 298K.

16                  The prohibited conduct that is relevant in this case is conduct that would have the result contemplated in subsections (b) and (c) of section 298K(1):

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:

……

(b)   injure an employee in his or her employment;

(c)   alter the position of an employee to the employee's prejudice;

17                  The prohibited reasons referred to are contained in section 298L(1)(b):

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:

(b)   is not, or does not propose to become, a member of an industrial association; or…

18                  By section 4 an “officer” in relation to an organisation or branch of an organisation means a person who holds an office in the organisation or branch.  An “office”, in relation to an organisation or branch thereof, is in turn said by section 4 to be:

(a)     an office of president, vice-president, secretary or assistant secretary of the organisation or branch;

(b)     the office of a voting member of a collective body of the organisation or branch, being a collective body that has power in relation to any of the following functions:

(i)      the management of the affairs of the organisation or branch;

(ii)     the determination of policy for the organisation or branch;

(iii)    the making, alteration or rescission of rules of the organisation or    branch;

(iv)    the enforcement of rules of the organisation or branch, or the performance of functions in relation to the enforcement of such rules;

 (c)    an office the holder of which is, under the rules of the organisation or branch, entitled to participate directly in any of the functions referred to in subparagraphs (b)(i) and (iv), other than an office holder of which participates only in accordance with directions given by a collective body or another person for the purpose of implementing:

(i)      existing policy of the organisation or branch; or

(ii)     decisions concerning the organisation or branch;

(d)     an office the holder of which is, under the rules of the organisation or branch, entitled to participate directly in any of the functions referred to in subparagraphs (b)(ii) and (iii); or

(e)     the office of a person holding (whether as trustee or otherwise) property:

(i)      of the organisation or branch; or

(ii)     in which the organisation or branch has a beneficial interest;

19                  An “organisation” is defined in section 4 as an organisation registered under the Act, while section 298B(1) affirms that “organisation” includes a branch of an organisation and defines the meaning of “officer” more specifically by providing that for the purposes of Part XA:

“officer”, in relation to an industrial association, includes:

(a)     a delegate or other representative of the association; and

(b)     an employee of the association.

20                  Thus “officer” for the purposes of Part XA includes a delegate, representative or employee of an industrial association, unless a contrary intention appears: Employment Advocate v Transport Workers Union and Others [1998] FCA 1646 (Cooper J); CFMEU v Coal and Allied Operations Pty Ltd [1999] FCA 1531 (Branson J)

21                  By section 298B(2) conduct such as the prohibited conduct here alleged may be attributed to or imputed to have been performed by the industrial association when, along with certain other instances, it is done by an officer of an industrial organisation acting in that capacity:

For the purposes of this Part, action done by one of the following bodies or persons is taken to have been done by an industrial association:

(a)     the committee of management of the industrial association;

(b)     an officer or agent of the industrial association acting in that capacity;

(c)           a member or group of members of the industrial association acting under the rules of the association;

(d)          a member of the industrial association, who performs the function of dealing with an employer on behalf of the member and other members of the association, acting in that capacity.

22                  By subsection (3) it is provided that paragraphs (c) and (d) do not apply if a committee of the management of the union, or a person authorised by that committee, or an officer of the industrial association, has taken reasonable steps to prevent the action sought to be attributed to the industrial association.  This provision is not under consideration in this case.

23                  Section 298T is concerned with the procedures for bringing such matters to the Court.  Subsection (1) provides that subject to subsection (4), an application may be made to the Court for orders under section 298U in respect of conduct contravening Part XA.  Subsection (2)(d) provides for the Employment Advocate to make such applications.  The type of order sought in this case is provided for by section 298U(a), by which the Court may make:

(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;

24                  Section 298V is concerned with proof of intent in an application to the Court under section 298T.  It begins by providing that “Proof [is] not required of the reason for, or the intention of, conduct”, since:

If:

(a)               in an application under this Division relating to a person's or an industrial association's conduct, it is alleged that the conduct was, or is being, carried out for a particular reason or with a particular intent; and

(b)       for the person or industrial association to carry out the conduct for that reason or with that intent would constitute a contravention of this Part;

     it is presumed, in proceedings under this Division arising from the application, that the conduct was or is being carried out for that reason or with that intent, unless the person or industrial association proves otherwise.

The standard of proof

25                  With regard to the standard of proof required of an applicant, section 298X indicates that a contravention of section 298K is not an offence.  The High Court in Patrick Stevedores Operations No. 2 Pty Ltd v Maritime Union of Australia (1998) 195 CLR 1 at 18 affirmed as much:

A contravention of s 298K(1) is not an offence but the Federal Court of Australia is given a wide jurisdiction to make orders in respect of contravening conduct.

26                  For this reason, the civil onus of proof is applicable: Maritime Union of Australia v Geraldton Port Authority [1999] 165 ALR 67 at 96.  It was, however, submitted that the relevant standard of proof in these sorts of matters should be based upon the principle derived from the judgment of Dixon J in Briginshaw v Briginshaw (1938) 60 CLR 336 at 362, in a case concerning a petition for divorce on the ground of adultery, that:

…reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters, “reasonable satisfaction” should not be produced by inexact proofs, indefinite testimony, or indirect inferences.

27                  The respondents argued that the approach of the Court in this case must account for the fact that Part XA of the Act, in particular section 298K, is “penal in nature”.  In this respect they relied upon Mayne Nickless Ltd v TWU [1998] FCA 984, a decision of a Full Court of this Court (Chief Justice Black, Justices von Doussa and Carr).  Their Honours said that although a breach of the provisions of section 298K is a “serious matter, the penal provisions are nevertheless not criminal in character”.  It was argued that because proceedings are of a penal nature, and because of the serious nature of the allegations and the consequences of a finding of breach, it is appropriate that the Court adopt the critical Briginshaw approach to the evidence before making the finding. 

28                  The Advocate argued that because one of the elements of the offence involves a reverse onus, Parliament clearly did not intend the full Briginshaw standard to apply to the other elements: see G v H (1994) 181 CLR 387 at 399-401, and that the argument on interpreting penal provisions is a common law rule that in this case must yield to the specific directions of the legislature.  Of course, section 298A clearly sets out the objectives of Part XA, and if it were necessary section 15AA of the Acts Interpretation Act 1901 indicates that “a construction that would promote the purpose or object underlying the Act shall be preferred to a construction that would not promote that purpose or object”. The Advocate further contended that although Part XA contains remedies including penalties, it is primarily protective and remedial in nature and its penal elements must be seen in this light.  It is remedial in the sense that the object of the Part is to protect the rights of individuals along the lines of an anti-discrimination law.  Such laws should where possible be construed beneficially: IW v City of Perth (1997) 191 CLR 1 Brennan CJ and McHugh J at 12, Gummow J at 39 and Kirby J at 58.  The High Court has also held in the employment context that where a remedial law also has a penal aspect, and the two canons of construction appear to conflict, the penal construction must yield to the remedial one: Waugh v Kippen (1986) 160 CLR 156 at 164-5; Newcastle City Council v GIO General Limited (1997) 191 CLR 85 at 109-111.  The High Court has also reaffirmed that Dixon J’s approach remains authoritative: see Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449 at 449-450 per Mason CJ, Brennan, Deane and Gaudron JJ.  See, too, the decision of Justice von Doussa in Beach Petroleum NL v Johnson (1993) 115 ALR 411 at 435. 

29                  In Geraldton Port Authority, Justice RD Nicholson applied the Briginshaw standard to the sections currently under consideration, having found at 96 that the allegations were serious in character and that the whole trial had been conducted with exhaustive exactitude.  His Honour emphasised that we are still speaking of an application of the civil standard of proof on the balance of probabilities.  Further, since this case was heard, the Briginshaw standard has been applied in other decisions, involving these sections of the Act: Australian Colleries’ Staff Association v BHP Coal Pty Ltd [2000] FCA 318 (Spender J); AMACSU v Ansett Australia Ltd [2000] FCA 441 (Merkel J).  I think that in dealing with these types of civil offences some standard of proof above mere satisfaction on the probabilities is appropriate.  The Court is in any event bound by section 140(2) of the Evidence Act 1995 to take into account the nature of the cause of action, the nature of the subject matter of the proceeding and the gravity of the matters alleged in determining whether it is reasonably satisfied that the matter has been proved.

 “advise, encourage or incite”

30                  The conduct contemplated does not have any technical or secondary meaning.  Black’s Law Dictionary (7^th edition) defines the verb “incite” to mean “to provoke or stir up (to commit a criminal act, or the act itself)”.  The idea of giving “advice” has an obvious meaning related to the notion of guidance offered to the person concerned.  Black’s defines the verb “encourage” in a manner that includes incitement: “to instigate; to incite to action; to embolden; to help”.  The terms are used together in other statutory contexts, mostly criminal.  For example, section 2A of the Crimes Act 1958 (Vic) defines “incite” to include “command, request, propose, advise, encourage or authorise”. 

31                  The inclusion of all these terms in the section probably indicates that a relatively synonymous meaning should be given to each: see for example Bulle v the Queen 1984 Tas R 209 at 218 per Cox J, where it was held that the terms “incite” and “instigate” are for practical purposes synonymous.  There seems no reason to limit the meaning of the composite phrase to the lowest common denominator of conduct evident from one of the terms, so that it is probably not fatal to an application that the conduct might be characterised as “encouragement” but not as “incitement”.  Either the terms should be considered together so as to give a composite understanding of the type of conduct that has been proscribed, or it may be that if conduct is capable of characterisation as “incitement” for instance, it would not be necessary to show that it was also capable of characterisation as “advice” or “encouragement”. 

32                  It is instructive to consider the meaning that courts have given to these terms.  While “incitement” might be understood as being something more specific than “encouragement” or “advice”, involving perhaps more direction behind the conduct towards an outcome, this is not necessarily so.  “Incitement” is not a word of such uncommon use that it necessarily requires a special meaning: Pelly v The Queen (1994) 13 WAR 372 at 376.  Glanville Williams’ A Textbook of Criminal Law (2^nd edition page 364) opines that the word “incite” generally speaks for itself, but includes advise, encourage and authorise, as well as persuade by threat.  However, it has been said that an incitement to act need not involve any threat element but can take the form of encouragement or persuasion: Race Relations Board v Applin [1973] QB 815 per Lord Denning MR at 825 with whom Buckley and Stephenson LJJ agreed at 829. 

33                  In Australian Commonwealth Shipping Board v Federated Seamen’s Union of Australia (1925) 35 CLR 462 at 477-478, Isaacs J, accepting the definition given in R v Most (1881) 7 QBD 244 at 258, defined “encourage” to include:

to intimate, to incite to anything, to  give courage to, to inspirit, to embolden, to raise confidence, to make confident

The High Court was giving consideration to, amongst others, section 8 of the Conciliation and Arbitration Act 1904 which provided that an organisation of employees which, for the purpose of enforcing compliance with the demands of employees, ordered, encouraged, advised or incited its members to refuse to accept employment would be deemed guilty of a strike.  It is evident from the reasoning of Isaacs and Starke JJ that conduct constituting “encouragement” was taken as a broad notion, broad enough in that case to include inferences from silence: see the reasons of Starke J at 492.

34                  In Bennett v Milliner (1959) 1 FLR 312, the Commonwealth Industrial Court (Dunphy and Morgan JJ) considered the prosecution under section 138(1) of the Conciliation and Arbitration Act 1904 of Milliner, an officer of an industrial organisation, for advising and inciting a person to refrain from working in accordance with an award.  Milliner had said to the employee: “I am directing you not to work the offset press.”  After being confronted by a third party as to his authority to make such a direction, Milliner said to the employee: “Well son, I am telling you, do not work the offset press, or there will be real trouble.”  Dunphy J held at 317 that the defendant both “advised” and “incited” the employee within the meaning of the section.  Preferring the third party’s evidence as to the actual words used, he said:

Even if I were to accept absolutely Milliner’s statement in evidence in chief that his remark, “Son, don’t go near the offset because there will be trouble if you do” was made in a “brotherly” manner it certainly was advice in the language of the statute or indeed, in any other language.  “Incite” means to urge or spur on or to stir up, but it seems to me that, in certain circumstances at any rate, the difference between advising and inciting could be a matter of emphasis or inflection.

Words used in an advisory manner could become inciting if used in a different tone of voice or in different circumstances.

He then held that the direction to cease working the press and go back to another machine amounted to an incitement.

At 322 it appears that Morgan J likewise considered the “brotherly” conduct to have been “advice” even though the initial words were more in the form of a direction to the employee.  On this basis Morgan J upheld the first charge that had used the term “advise”.  He then said:

The meaning of the word “incite” is not the same as the meaning of the word “advise”, although I think that the meanings of the two words are not mutually exclusive. A person could advise a course of conduct without inciting, but perhaps he could seldom incite without advising. Meanings of the verb incite are “To urge or spur on, to stir up, to instigate”.

On this basis Morgan J held that the directions given to the employee constituted “incitement” since it was really the defendant who “instigated the matter”.  The meaning of the word “incite” is not the same as the word “advise”, but the meanings are not mutually exclusive and the difference between them may be simply a matter of emphasis or inflection.  Incitement does seem somewhat more positive than advice, and includes it (at 317 Dunphy J spoke of “advising or even inciting”), but whether there is any significance in the difference depends on the circumstances.

35                  It is not always necessary to consider the meaning of the terms in this contrasted manner, for if the conduct constitutes, say, “incitement”, it will usually not be necessary to show that it is also “encouragement”.  In Ansett v Australian Air Pilots Federation (1989) 95 ALR 211, Brooking J noted the decision in Milliner while considering section 312 of the Industrial Relations Act 1988, which was relevantly similar to the provision considered in the latter case.  Coming to a conclusion on the facts before him, Brooking J said at 249:

I think it is clear that all members who received the directive were incited to refrain from working in accordance with their award and it is unnecessary to consider whether they were in addition advised or encouraged.

36                  It follows from the terms incitement, advice and encouragement themselves, as well as from the tense used in section 298P(3) which prohibits action “that would if taken, contravene section 298K” [my emphasis], that there is no need for the employer to act upon the incitement, advice or encouragement in order for the section to be contravened.  Any action actually contemplated or taken by the employer is irrelevant for the purposes of section 298P(3) and unnecessary for a breach of the section.  In Ansett at 248-9 Brooking J said:

[W]hereas in considering whether a breach of contract has been induced or procured one is considering a question of causation, this is not so where the question is whether a union member was advised, encouraged or incited.  The authorities – I do not pause to cite them – make it clear that at common law the offence of incitement does not require that the act of the accused should actually influence the person whom he solicits, and I see no reason for taking a different view with regard to a statutory offence. It is also part of the common law that you can be convicted of incitement even though the person incited has already conceived the idea of committing the offence: R v Crichton (1915) SALR 1.

37                  To similar effect is Dimozantos v R (1991) 56 A Crim R 345.  At 349 the Victorian Criminal Court of Appeal confirmed that the offence of incitement is constituted solely by the conduct of the inciter and is complete upon that person’s act.  That means that it is not necessary to show that the employer incited acted upon the incitement.  There is of course a breach if the employer responds to the incitement, follows the advice or acts upon the encouragement.  But if the advice etc is completely ignored, the contravention is still complete if it would have had the proscribed result had it been acted upon.

38                  Another quite separate issue is whether the employer’s stance or response is relevant to a consideration of the alleged reasons for acting.  The respondents sought to argue that there is significance in the distinction between paragraph (a) of section 298P(3), whereby an officer of an industrial association must not advise, encourage or incite an employer, and paragraph (b) whereby an officer may not organise or take or threaten to organise or take industrial action against an employer with the intention of coercing that employer to contravene section 298K.  In this case only paragraph (a) was pleaded.  The respondents suggested that, if anything, the coercive paragraph (b) would have been a more appropriate characterisation of the conversation and the general facts of this case.  They argued that the terms incitement, advice, or encouragement in paragraph (a) suggested some degree of collusion or co-operation between the inciter etc and the employer, which was absent in this case, and that if anything the circumstances should be characterised as a threat of industrial action under paragraph (b).

39                  In Langer v Commonwealth (1995/1996) 186 CLR 302, the High Court was dealing with section 329A of the Commonwealth Electoral Act 1918 which prohibited the printing, publishing, or distribution of any matter with the intention of encouraging voters to fill in ballot papers informally.  Justices Gaudron and Toohey at 330 drew a distinction between conduct intended to inform, which was not prohibited, and conduct intended to encourage non-compliance with the Electoral Act, which was.  Similarly Justice Brennan at 318 held that the provision did not prohibit advocacy but only “intentional encouragement” of the filling in of ballot papers in a way that would result in them being excluded from the count.  Interestingly, Justice Dawson at 323 remarked in dissent that, except where there was “active encouragement”, there was a “thin line” between imparting information to inform with the intention of encouraging its application, and imparting information with the intention merely to inform.  The respondents argued that the majority judgments illustrate the need for proof of an intentional element in the term “encouragement”, and emphasised that the terms “incite”, “advise” or “encourage” imply a need for the conduct to have some degree of conspiracy about it that was lacking in this case.

40                  While it might be one way of characterising the effect of the conversations to say that Hearne was coercing the employer, in my view the submission that the patent lack of co-operation or collusion by Adecco means that the conduct was not incitement, advice, or encouragement, has no basis.  The fact that paragraph (b) of section 298P(3) proscribes coercion of the employer does not mean that paragraph (a) requires some sort of collusion.  No doubt advice etc may be given in circumstances where a threat accompanies the advice, and is part of it.  It is clear that the legislature did not wish to limit possible contraventions to cases where coercion was involved but also to constitute as a breach the mere act of putting the contravening proposition to an employer (whether a willing recipient or a shocked rejectionist).  I do not see any reason to restrict paragraph (a) to instances where the employer is colluding or co-operating with the officer.

41                  From the critical conversation it is to my mind clear that Langer is of no assistance: it cannot on any view be said that Hearne was simply “informing” Routledge.  In my view he was at least inciting, advising or encouraging her to remove Holloway from the employment site.  The conduct may also have had coercive undertones indicative of conduct proscribed by paragraph (b).  Although he denied that he would have said, “I am going to organise to harass David’s daily until you get that man off-site”, Hearne agreed in cross examination that he may indeed have said that if the agency did not co-operate with his advice, he would spread the word for “no-one else to use [it]”.  However, it is unnecessary to do down this “coercive” route, which was not pleaded, since having regard to the authorities, it seems clear enough that the conversation constituted either incitement, advice, or encouragement, or all of these, of Routledge by Hearne to remove Holloway.

Injury in employment and alteration of position to employee’s prejudice

42                  It was argued that if Adecco had taken the course of action proposed by Hearne, and removed Holloway to another worksite, Holloway would have been injured in his employment contrary to paragraph (b) of section 298K(1) and his removal would also have altered his position to his prejudice contrary to paragraph (c).

43                  It is apparent that as a matter of general approach, a somewhat generous interpretation of what constitutes “injury” or “prejudice” has been adopted by the courts, although it is clear too that employment is not a general condition, and the circumstances of the particular employment are critical to any finding.  Prejudicial alteration is plainly wider than the notion of ‘injury’ and includes that notion.  It is a broad additional category.

44                  The High Court considered these two paragraphs of section 298K(1) in Patrick Stevedores.  Brennan CJ, McHugh, Gummow, Kirby and Hayne JJ said of the provisions that:

Paragraph (a) covers termination of employment; par (b) covers injury of any compensable kind; par (c) is a broad additional category which covers not only legal injury but any adverse affection of, or deterioration in, the advantages enjoyed by the employee before the conduct in question.

45                  No exhaustive catalogue of possibly injurious circumstances could or should be attempted. A wide array of circumstances can be contemplated.  In Kimpton v Minister of Education (North J, unreported, 22 February 1996), the Industrial Relations Court of Australia was prepared to entertain the argument that a requirement that an employee participate in an investigatory process may amount to a relevant injury or prejudicial alteration of position.  In Patrick Stevedores itself, the High Court found that steps by the member companies of the appellant group, taken because of the employees’ membership of the Maritime Union of Australia, which had the effect of diminishing the solvency of the employer companies, altered the position of those employees to their prejudice within the meaning of the Act.

46                 A wide meaning to the term “injure in his employment” was approved of by Ellicott J in Squires v Flight Stewards Association of Australia (1982) 2 IR 155.  A union threatened to take industrial action against an employer unless the applicant, Squires, was stood down for one month.  The Court held that it would constitute an injury to an employee in his employment if he was stood down from his employment in this way, even though he would still have been on full pay.  Ellicott J said that this conduct should be seen as injuring the employee in his employment because the employee was singled out by the employer, at the request of the union, and treated differently to other employees for reasons not associated with the manner in which he was performing his work.  The general approach of the Court in that case has been followed in the subsequent authorities, while the remarks of Ellicott J at 164 are apposite to the present case:

…action by an employer in standing down an employee even on full pay for a month is action which injures the employee in his employment. In taking such action he is singled out by the employer and treated differently to other employees and for reasons not associated with the manner in which he is performing his work. An employee may not be entitled, under his contract of service, to demand work at a particular time or place, but when he is stood down, not because work is unavailable but because of a request by his union the taking of that step is, in my opinion, an injury to him in his employment. The words `injure in his employment' are in the context of s. 5 words of wide import. I do not regard them as referring only to financial injury or injury involving the deprivation of rights which the employee has under a contract of service. They are, in my view, applicable to any circumstances where an employee in the course of his employment is treated substantially differently to the manner in which he or she is ordinarily treated and where that treatment can be seen to be injurious or prejudicial. Singling him out to be stood down from his employment for a period in circumstances where his fellow employees won't work with him for that period is in my view clearly an injury to him in his employment.

47                  In Geraldton Port Authority at 100 Justice Nicholson considered the concepts of “injury” and of the “position” that would be subject to any prejudicial alteration.  His Honour appears to have supported the viewpoint that “injury” refers to the deprivation of one of the more immediate practical incidents of employment (see Smithers J in Childs v Metropolitan Transport Trust (1981) IAS Current Review 946 at 948), while the concept of prejudicial alteration is a broader concept which may be considered to have been added to or supplemented the concept of injury so as to cover the situation “where injury was not manifested to the employee”.  His Honour noted the decision of Evatt J in Blair v Australian Motor Industries Ltd (1982) 61 FLR 283 which at 290 adopted the views of Smithers J in Childs:

It is clear in my view that the words [or alter his position to his prejudice] were added to the section to overcome a situation in which an employer did something short of dismissing an employee but which was something which could be said to be harmful to him in his employment.

48                  Justice Nicholson noted the consideration given in Childs to the concept of “position” where a distinction was made between the immediate incidents of day-to-day employment and an employment in all its attributes.  Smithers J preferred to understand the term “position” in the wider sense:

It is possible to read the word “position” in a narrow way merely as referable to the immediate incidents of day-to-day employment. But I do not see any reason why it should be so circumscribed in meaning. It seems to me that the word “position” should be read rather to refer to a man's employment position in all its attributes and that to find what those attributes are in any particular case, you look at the terms of employment, the terms of the agreement in relation to the particular employment. Fear of alteration of any of those terms or of the entitlements thereunder would be as potent a factor inhibiting an employee from operating the Act as fear of dismissal, or loss of pay or something in the nature of an immediate injury. I think therefore that cancellation or repudiation of a term of employment which has been agreed upon, cancellation or repudiation by an employer which the employee is in no position, legal or otherwise, to resist or oppose, although he may get some legal rights in relation to it, by withdrawal of a promise of secure employment in a position for an agreed term is an alteration in the employee's position within the meaning of s. 5, and I think it takes place on the day of cancellation or repudiation of the promise that was made. From then on his position is substantially altered. The term has gone.

49                  In considering the facts of the matter before him, Justice Nicholson held at 104 that an offer of voluntary redundancy could not constitute a threat to injure an employee in his or her employment as it was an offer the employee may accept or reject; once accepted, employment ceases so that there is nothing against which to measure any alleged injury arising from the redundancy.  His Honour interestingly held that:

Consequently, allegations of worse terms and conditions being inevitable on engagement in new employment are not relevant to alleged injury in the former employment. Section 298K(1)(b), even given its wide connotation, does not address employment as a general condition but is referable to the particular employment in which the injury is said to have occurred or been threatened. Cf Australasian Meat Industry Employees' Union v R J Gilbertson (Queensland) Pty Ltd (Gray J, Federal Court of Australia, 8 December 1988) unreported, 15-17.

50                 At 105 his Honour considered whether the reduced opportunity to perform overtime work could constitute a prejudicial alteration to the positions of the applicants within the meaning of section 298K(1).  There was no evidence of actual denial of overtime or present loss of overtime.  As to overtime capable of being earned in the future, his Honour noted the difficulty in quantifying the extent of the reduction with certainty because of, among other things, the month by month variation in the availability of such work at the Geraldton Port and the numbers of persons able to perform or interested in it.  The award in question did not guarantee any particular level of overtime, which meant that “there [was] no definitive benchmark…against which to measure injury or prejudice”.  Nevertheless, referring to other evidence, his Honour was content to make the following finding at 108:

On the authorities previously referred to it is likely that the probable reduction will reduce the earnings of the second applicants and the MUA employees from overtime below the average levels earned during the 21 month period prior to the changes for which figures are available as reflected in the Table.

In my opinion the prospect of reduction in overtime earnings of the second applicants and the MUA employees comes within the understanding in the case law of the concept of prejudicial alteration to their positions. The change in that respect is one which qualifies therefore as conduct pursuant to s 298K(1)(c). 

51                  Justice Nicholson then considered the contention that the threat of redeployment of employees in that case could, notwithstanding the provisions of the statute and regulations in question, be a threat of injury because those provisions did not specify that any replacement job be remunerated at the same rate.  Because of provisions in the regulations defining ‘suitable employment’, his Honour held that the prospect or threat of redeployment:

cannot in itself necessarily constitute a threat to injure or a threat to alter the position of an employee to the prejudice of that employee. Until the facts of the redeployment fall out it is not known whether they will be injurious or prejudicial. It remains open, as the PSM Regulations expressly acknowledge, that redeployment could take place either without injury or prejudice or with enhancement. The second applicants cannot therefore now establish a threat to injure in employment or a threat to alter their position in this respect. Evidence which established that the isolated location of Geraldton meant that redeployment in that area would be difficult is not evidence which establishes the necessary injury or prejudicial alteration. In the circumstances of this matter s 298K(1)(b) cannot operate in respect of a threat to redeploy and would only operate where there was evidence arising from a particular proposed redeployment. Even then, the fact that provision for redeployment formed part of the conditions of employment would require close consideration

52                  More recently, in CFMEU v Coal and Allied Operations Pty Limited cited at [20] Justice Branson at [94] considered the argument that since none of the employees in that case had his employment contract varied, his job changed, or his position altered in any obvious way, none of them was injured in his employment or had his position altered to his prejudice by the issuance of warnings by the employer as part of the employer’s disciplinary procedures.  Her Honour noted that the effect of the passage from Patrick Stevedores quoted at [44] above is that it is not only the alteration of the legal rights of an employee that is relevant to the question of whether an employee has suffered a prejudicial alteration of position.  For this reason she was able to find that the effect of the warnings issued in that case was to make the employees’ continuing employment less secure, and that the respondents had therefore altered the position of those employees to their prejudice within the statutory meaning.

53                  More recently still, Justice Gray had occasion in Australian Workers' Union v BHP Iron Ore Pty Ltd [2000] FCA 39 to consider, for the purposes of an application for an injunction, the meaning and ambit of the two concepts.  The issue was whether, in a situation where there had been no change to the terms and conditions of some employees, but the conditions of others had improved, it could be said that this relative change could amount to injury in employment or prejudicial alteration of the employee's positions. Finding support from various other decisions including Health Services Union of Australia v Tasmania (1996) 73 IR 140, United Firefighters Union of Australia v Country Fire Authority (Industrial Relations Court of Australia, unreported, North J, 24 December 1996) and Geraldton Port Authority, his Honour held at [30] that:

It is strongly arguable that an actual diminutionin the terms and conditions of employment of an employee is unnecessary before it can be said that that employee has been injured in his or her employment, or has had his or her position altered to his or her prejudice. The offer of superior terms and conditions to other employees, coupled with a refusal to offer them to those who wish to have their employment regulated in a collective way, is arguably conduct which falls within par (b) or par (c) of s 298K(1) of the Workplace Relations Act 1996 (Cth), if it is engaged in for a prohibited reason.

54                  On appeal, a Full Court of this Court (Chief Justice Black, Justices Beaumont and Ryan) disagreed with the conclusion reached by Justice Gray, holding that the focus was on the acts of the employer, and that there had not been any differential treatment by the employer of any of the employees by reason of their union membership.  With regard to the element of injury, the Full Court held that even if a relative change could be discerned in the conditions of those who had and those who had not accepted the offer of individual workplace agreements, the change was not due to an intentional act of the employer: BHP Iron Ore Pty Ltd v Australian Workers Union [2000] FCA 430 (BHPIO) at [38].  The Full Court held that there had not been any discriminatory “singling out” by the employer in the Squires sense of any of its existing workforce and was not prepared to consider future possible injury by exclusion from promotion etc of those who had not accepted the offer.  At [48] the Court said:

It is apprehended by the applicants [the union] that employees who elect not to sign individual workplace agreements will, in the future, be excluded from consideration for promotions or changes of shifts to which they as well qualified by experience or training as employees who have accepted the offer.  On the evidence, this has not happened and, until it does, it is not open to find that BHPIO has injured in their employment, or has altered to their prejudice the position of, those employees who remain regulated by the awards.

55                  It is thus apparent from various decisions of the courts that the inquiry is to be focused on the particular circumstances of the particular employment, so that the alleged injury or alteration of position of the employee has to be examined in the light of the circumstances of the individual employee: see for example BHPIO (Full Court) at [35], Geraldton Port Authority at 104.

56                  In Health Services Union of Australia v Tasmania, Justice Marshall considered section 334 of the Industrial Relations Act 1988 which was relevantly indistinguishable from section 298K(1).  His Honour applied the “singling out” test articulated in Squires along with the “expectations and benefits” inquiry demonstrated in Linehan v Northwest Exports Pty Ltd (1981) 57 FLR 49 at 62, to which I shall return.  The Full Court in BHPIO at [41] approved of and undertook the “singling out” inquiry, after reference to this judgment of Justice Marshall. 

57                  The concepts of injury in employment and prejudicial alteration of position as they operate in section 170MU(1) of the Act, where the phrasing of these concepts is almost identical to section 298K(1)(b) and (c), were also considered by Justice Ryan in Independent Education Union of Australia v Canonical Administrators (1998) 157 ALR 531.  At 548 his Honour held that the subsection: 

precludes an employer from discriminating against an employee wholly or partly for the same reason, by, for example, the allocation of less congenial shifts or rosters or affording fewer opportunities for overtime than are extended to other employees.

This explanation was referred to with apparent approval in Geraldton Port Authority at 102 and by the Full Court in BHPIO at [48], where it said that these observations extended only to an alteration in the employee’s position which has been brought about by a discriminatory act of “singling out” by the employer for a prohibited reason.

58                  It has in the past been held, for the purposes of leave to commence a prosecution under section 95 of the Industrial Arbitration Act 1940 (NSW), that when determining whether a prima facie case has been made out that an employer has injured a person in their employment or prejudicially altered the person’s position, an objective view must be taken:  Hammond v Department of Health (1983) 6 IR 371 at 375.  It was observed, for example, that a change resulting in less job satisfaction from the employee’s point of view would not for that reason alone be sufficient to constitute a relevant injury or alteration.  This position is no doubt correct, for the inquiry is an objective one in the circumstances.  On the particular facts of that case, the Industrial Commission of New South Wales in Court Session found at 376 that the alteration had meant that the employee was still employed by the same department in the same field, at no reduction to salary or conditions.  It considered that any “potentially diminished promotional prospects” arising from the change that had occurred to the employee’s circumstances were “too nebulous to weigh in the balance”. 

59                  In oral argument in the present case, the respondents drew attention to the facts of Hammond in some detail, in support of their submission that any potential alterations to Holloway’s position or any injury would have likewise been “too nebulous” to be accommodated within the statutory provision.  By way of contrast it is worth noting that one of the foremost reasons why future possibilities were not considered significant in Hammond was that the employee concerned was unwilling to move from the Goulburn area, and so her future promotional prospects were curtailed anyway.

60                  In AMIEU v Gilbertson Queensland Pty Ltd (1988) 26 IR 237 at 250, Justice Gray held that exclusion from being a regular daily employee could, in theory, amount to injury in employment or alteration of position to prejudice of the employee:

There is no reason, other than some prohibition under a statute or award, why a contract of employment should not provide that an employee only works on days when required by the employer……[i]f such a continuing contract, with a right to engage for actual work from time to time, existed, it might be said that a person who was not engaged at all was injured in his employment by being excluded from being a regular daily employee, or by refusal or failure to re-engage as a regular daily employee. The determination of this issue must await the evidence.

His Honour then concluded that:

It is plainly possible for someone who usually employs someone else to alter the latter’s position to this or her prejudice by refraining from such employment

Of course, whether this is so in any case depends, as Justice Gray observed, upon the particular evidence in the case.  In this sense his Honour’s observations are consistent with those expressed in BHPIO, noted at [55], and elsewhere regarding the need to examine the circumstances of the position in question. 

61                 The Advocate drew particular attention to the facts and decision in Linehan.  The case involved three prosecutions under section 144A of the Conciliation and Arbitration Act 1904 as a consequence of the dismissal of an employee.  The employee, Michael Foley, worked on a day-to-day basis when work was available.  If work was not available, he went home.  It was submitted on his behalf that his status or position could be gauged by a number of factors: he was not specifically employed as a casual, he was employed on a similar basis to others doing the same work in that section of the works, he was paid weekly, he had regular employment, he was issued with company clothing, and if he had not been terminated, he would have been entitled to leave over the Christmas break and to commence again after that if work was available.  He was also entitled to sick leave and annual leave payments.  Ellicott J was satisfied that Foley had achieved such a degree of permanence in his employment that if he turned up on a particular day for work, and work was available, it was likely that he would have been employed.  He was in this sense a ‘permanent’ rather than a ‘casual’ employee.

62                   Two of the informations were rejected at 61-2 because it could not be accepted that Foley had been ‘dismissed’ or threatened with dismissal as he was only employed on a day-to-day basis, and ‘dismissal’ meant terminating an existing employment, not refusing to re-employ someone.  However, the third information was found to be proved on the evidence that Foley had an expectation of being engaged each day if he turned up to the site and work was available.  Ellicott J considered that the loss of the possibility or expectation of future work could constitute alteration of the employee’s position to his prejudice even though he was only employed on a day-to-day basis.  This loss did in fact constitute an alteration of Foley’s position to his prejudice within the meaning of section because he would not be employed again even if work became available.  The ‘termination’ of Foley’s relationship with the employer, it was found, came about because it had been indicated that the union would take industrial action unless Foley agreed to take out union membership, which he refused to do.  Ellicott J found it proven that the employer had altered Foley’s employment to his prejudice, and as it had not been proved on a balance of probabilities that a substantial and operative factor in the removal was not that Foley was not a member of the union, the prosecution succeeded.  Ellicott J concluded at 62:

I am satisfied beyond reasonable doubt that he was engaged with the status of a regular or permanent employee who, although his employment terminated at the end of the ordinary working hours on each day, was entitled to certain benefits including the expectation of work each day if, pursuant to his obligation to do so, he turned up and it was available.  He was also entitled to annual leave and sick leave payments. When his employment ended……and the company refused to treat him as having regular or permanent status he lost this status and the expectations and benefits that went with it. By doing so, the defendant altered Mr Foley’s employment to his prejudice.

The usefulness of that case to the somewhat apposite facts of this case is tempered by the fact that the employer presently in question is not the owner of the business where the work was actually done, but rather the employment agency that placed the employee there.  However, the circumstances of Holloway’s deployment to the David’s site are relevant since it is partly with reference to that site that any injury or alteration would have occurred, albeit in the context of his position within Adecco, being the relevant employer.  And the case law demonstrates that the outcome of this analysis in any particular case is highly dependent upon its particular facts as to whether injury or prejudicial alteration has occurred (or, in the present case, would have occurred).  The respondents did not argue that Holloway, as a ‘casual’, should not have been considered ‘employed’ by Adecco, possibly because any such argument might have had to confront the result reached in Linehan.

Was Hearne an “officer” of the Union?

63                  As Hearne was the person alleged to have committed the contravening conduct, the first question to be decided is whether he was an officer of the Union at the time.  If not, the Advocate’s case must fail at the threshold.  In the 1994 elections for federal offices in the Union, Hearne was elected, in accordance with rule 13 of the Union’s rules, for the normal four year term, to be “Distribution Division-Organiser” and also to be a “Delegate to the National Council”.  The 1996 and 1997 annual returns of information of the New South Wales Branch of the Union list the various offices in the Branch, and the names of the Branch’s “office holders”.  For both years Hearne was described as being the “Organiser (Distribution), Delegate to the National Council”.  His “Occupation” is recorded as “Union Organiser”.  Under rule 37, the New South Wales (NSW) Branch of the (Federal) Union includes the ACT where the warehouse was situated.  It is also apparent from rule 71(13) that branch officers include elected organisers.

64                  If this evidence were not sufficient, it was apparent from the evidence of witnesses for both the Advocate and the respondents that Hearne was at the time an organiser for the Union, and should therefore be considered an “officer” of the Union for the purposes of the Part.  Scott Costello, at the time a supervisor at the warehouse, deposed that he dealt with Hearne as “the local organiser of the NUW”.  Anthony English was in charge of the warehouse.  He testified that as a supervisor, before he was promoted to manager, he did not have a great deal of contact with Hearne, although he was present with the then distribution manager at meetings which Hearne attended as an organiser for the Union.  Mostly, meetings with the Union representatives involved only the Union’s local representative within David’s, and Hearne, he said, “only became involved in the event that David’s management and the local delegate could not resolve the issue”.  After he became centre distribution manager himself, English attended meetings where Hearne was present.  Anthony Nichols, then a warehouse supervisor, but at one time a co-delegate of the Union himself, testified to having known Hearne while Hearne was still employed at David’s as a storeman and afterwards when he became an organiser for the Union.  He too said that Hearne would only come to the warehouse occasionally to deal with specific problems or simply to check on things with the local delegates.  Jacobs, the elected delegate of the Union for the warehouse at the time, explained that Hearne was an organiser for the Union.  He described how his understanding of the new Act was due to discussions he had had with Hearne in the latter’s capacity as the Union organiser, and that he had introduced Hearne to Holloway as “the NUW Organiser”.  Hearne himself testified to being an elected organiser of the New South Wales Branch of the Union, saying his role as organiser was, among other things, to represent members who work at the warehouse.  He was in this capacity “responsible for the ACT, western NSW and the Riverina”.

65                  Hearne was clearly an officer of the Union at the time of the alleged conduct, within the particular meaning of that term under, and for the purposes of, Part XA.  He was an officer by virtue of holding the offices of elected organiser and National Council delegate. Furthermore it is clear, indeed from Hearne’s own testimony and that of his Union superior, Frank Belan, that he would act as a representative for the Union in that area and would become involved in issues that were drawn to his attention or that could not be resolved by the on-site Union delegates.  Indeed, the respondents eventually conceded that as an organiser and National Council delegate, Hearne was an officer of the Union, although they denied that he should be considered to have been acting in this capacity during this time.

However, before any consideration of whether Hearne as an ‘officer’ was, during the particular events under consideration, acting in this capacity so as to make his conduct attributable, under section 298B(2), to the Union, it is necessary to determine whether the advice etc if acted upon would have injured Holloway in his employment or prejudicially altered his position in contravention of section 298K(1).

Was there injury or prejudicial alteration of position in this case?

66                  As explained previously, the nature of the particular employment is thus crucial.  In Linehan what was critical in establishing whether any injury or prejudicial alteration had occurred was the nature of the terms of the employee’s contract of employment.  All the attributes of the employment position must be examined.  It will primarily be by reference to the particulars of Holloway’s employment that it must be determined whether or not any action taken by Adecco pursuant to the incitement etc would or could have injured that employment or altered Holloway’s position in that employment to his prejudice.  I did not have the benefit of Holloway’s contract of employment, as the Advocate did not produce a copy of the signed employment agreement governing the terms of employees’ engagements to or with Adecco.  It is thus necessary to have regard to the evidence of witnesses as to the terms of Holloway’s contract of employment.  Routledge testified to the terms of employment of persons such as those in Holloway’s position, although she said that she was not particularly familiar with any of the particular details of Holloway’s own contract of employment.

67                  Adecco is evidently an employment agency (it is evidently a constitutional corporation for the purpose of section 298G (1)(a)) which registers persons as available for work.  It appears that at the relevant time about 98% of the registrants were ‘casuals’, and only the other 2% were ‘permanent’ employees of Adecco.  At the time in question it appears that there were some 600 people registered with Adecco in the area for which Routledge was responsible, although only about 300 were employed, in the sense of contracted out to clients of Adecco, at any one time.  Those seeking work on a casual basis would register by signing a standard form agreement with Adecco which provided that the company could send the casual to any site where Adecco could find work, although the employee could refuse the offer of work.  The individual’s rate of pay was not fixed by Adecco upon their registration but would vary according to the particular client and the nature of the work being undertaken for the client.

68                  Holloway began working for Adecco in December 1996.  When he registered he was, he said, willing or prepared to “do basically anything”.  Before being sent to the David’s Fyshwick site towards the end of January 1997, he had worked at other sites to which Adecco was contracted to send employees, having been a storeman at the “Revlon site”, a general labourer at the “Total Care site” for a very short period, and having also done some work as a driver for Adecco’s client, TNT.  The arrangement with David’s was that after suitable staff had been registered, they would be required to undertake an induction course or a test that David’s required the casuals to pass, whereafter they were placed in a ‘pool’ of casual employees able to work that site.  There were “ten or twelve” other persons registered with and employed by Adecco who were trained for, and cleared by the induction process to work at, the warehouse.  The system for these “ten or twelve” casuals was that, if wanting work, they would telephone the warehouse directly at 5.10 am on Monday and 6.10 am Tuesday to Friday, in order to find out whether there was suitable work for them on that day.  Roger Beiser was the Account Manager at Adecco responsible for the David’s account.  He gave evidence that there may have been more people seeking work at David’s than there was available work on any particular day.  If suitable work was available, whoever called in first would be given work.  It was only if work was not available at David’s, and they still wished to obtain work, that these employees would then ring Adecco to ascertain whether there was any other suitable work available.

69                  The respondents argued that by virtue of the particular circumstances of his employment, had Adecco removed Holloway from David’s, there would have been no injury to him in his employment or alteration of his position to his prejudice.  They said that there was also no acceptable evidence that by working anywhere other than David’s, Holloway would have suffered any relevant loss or been injured or had his position prejudicially altered.  It was said that I must take into account “the totality of the employment conditions” and that the evidence which “demonstrates that he was willing to work anywhere and had worked as a general hand, a driver, and as a storeman for Adecco”.  The submission was then that “if Holloway was able to earn a similar amount or more by working as a driver or in any other employment which Adecco could arrange for him…. it cannot possibly be said that Hearne’s suggestion….could result in the necessary injury or alteration as required by section 298K”.  The respondents submitted that the terms of his employment show that the nature of Holloway’s employment was itinerant, and that he was not guaranteed any work at all in his contract, nor any work at a particular rate, as both availability and renumeration depended on the client.  Holloway himself did not give any evidence of any loss he might have suffered if he was not able to work at David’s but only at other sites. 

70                  There was only indirect evidence of relative rates of pay for Adecco personnel at all the sites to which they could be sent, and for the types of work that Holloway was interested in and for which he was suited.  Various of the Advocate’s witnesses spoke to the favourable rates of pay available at David’s compared to rates paid at other Adecco-serviced sites.  This evidence was adduced with the object of showing how not being able to work at David’s would inevitably have been comparatively injurious to Holloway, since other available sites paid lower hourly rates to casuals.

71                  The enterprise agreement peculiar to the warehouse was determinative of the pay rates, although it appears that Adecco paid the casual storemen that it sent to David’s “a couple of cents per hour more” than the hourly rate prescribed by the enterprise agreement.  Weekly time sheets for Adecco employees who worked at David’s were delivered to Adecco by David’s, and Adecco then paid the employees on the basis of those time sheets.  In argument the Advocate pointed to a body of oral and affidavit evidence of Adecco employees at supervisor or management level that suggested that being assigned to David’s meant that Holloway was in a position to earn the highest rate of pay of any of the sites that Adecco serviced.  For example, Beiser testified in his affidavit that David’s had the highest rates of pay of Adecco’s clients for storemen and packers in the ACT, so that “for the things that Daniel Holloway could do, he was getting the highest pay rate that he could get when he was working at David’s”.  Routledge related in her affidavit in reply that if Holloway had been removed from David’s, she would have tried to find him other work with another client of Adecco, but that the other work that Holloway “could possibly have been sent to at that time would have had a lower rate of pay than that which he was receiving at David’s”.  Holloway himself testified that the primary reason that he was originally interested in the David’s job was that it had “more hours and better pay, around $13 or $15 per hour, which is more than I was getting for other work I was then doing for [Adecco]”.  Other evidence was to similar effect.

72                  The respondents objected to this evidence on the ground that it amounted only to hearsay.  For example, English (who was then in charge of the warehouse) deposed in his affidavit on the subject of pay rates in a manner similar to Beiser, but could not upon cross examination give any better evidence than saying that he had “got the impression” during his time at David’s that David’s paid the most in that type of work in that area.  In the final analysis, they said, the Court still does not have any direct evidence as to differing pay rates.  The respondents argued that the effect of the short High Court analysis of the relevant section of the Act in Patrick Stevedores is that an “injury” in this context is something for which it is possible to actually compensate the victim, and that it follows that it is necessary to show something that the evidence did not permit. 

73                  However, the section is not only confined to “injury”.  It also extends to prejudicial “alteration of position,” which is a somewhat more general notion.  In my opinion, it is unnecessary to resolve the matter of differing pay rates if, as the Advocate contended, the diminution alone of Holloway’s opportunities to obtain work, by excluding David’s as an option, would have constituted an alteration of his position to his prejudice.  If Adecco had acted upon Hearne’s incitement, advice or encouragement, Holloway would not have been able to work at David’s in the future.  Differences in rates of pay at other sites aside, it was argued that this deprivation alone would have constituted an injury or at least a prejudicial alteration to his position.  It was said that he would have one less opportunity for available work, and would have one less employer he could telephone in the morning, as a result of matters having nothing to do with the manner in which he carried out his work: see the passage from Squires at [47].  It was submitted that in the spirit of Squires, a decision since applied by other Courts considering these sections, the diminution of opportunity to obtain work is enough, in certain circumstances, to constitute prejudicial alteration of position under section 298K(1).  Holloway would have been treated differently to previously and to other employees for a reason not only not connected with the manner in which he performed his duties, but for a presumptively prohibited reason.  It was argued that this injury or alteration would have been more substantial and tangible to that the High Court was willing to accept in Patrick Stevedores, and is analogous to the prejudice found in Linehan.

74                  From the available evidence it is reasonably clear that Holloway would have been restricted, to his disadvantage, in that he would have known that although he was otherwise eligible for work there, it would not have been open to him to telephone the David’s site on any given morning in the hope that work was available.  It was not that he used to phone the agency.  He would telephone the warehouse itself.  If someone seeks to have an employee removed from a worksite such that it would no longer be possible for him to work at the site, it seems to me that he will have been injured or suffered a prejudicial alteration to his position.  The fact that he might attain similar or better work somewhere else, just as he might win the Lottery, or become very much worse off is in my view irrelevant to the statutory scheme.  Once sufficient evidence of his position is led as to make it possible to ascertain what the possible effect on his position at the time would have been, it is not necessary to delve into the other possibilities that might have ensued.

75                  There was a finite list of places Holloway could work for Adecco, and removing him from David’s as a possible place would have had the very real effect that his opportunity of gaining work on any one day was diminished.  This result cannot be sidestepped by pointing out that work at David’s might not have been forthcoming at all, or that he might not have been one of the first callers lucky enough to obtain what work was available.  He would have been denied the opportunity to work there which, as I understand the authorities, is enough to be considered an alteration to his employment to his prejudice.  Holloway’s “position” was that he was trained and on the list for David’s, and although he would have remained in his employment with Adecco, a position that carried no guarantee of work, he would as a result of any exclusion from David’s have had his chances of obtaining work reduced by reason, as the statutory presumption would hold, of his non-membership of the Union.  He would have gone from a position of likely or possible work to a position where he no longer had the opportunity to access that work.  Based on the principles of law arising from the cases, and taking Linehan as an analogy, I am satisfied from the evidence that Holloway had an expectation that, if work was available and he called in for it, in all likelihood that work would be his even if the expectation was not contract-based or guaranteed.  This likelihood was no doubt the reason that Hearne and Jacobs sought to persuade him to join the Union, as otherwise his membership would have been of little moment to them.  At least he had an expectation that he would not be excluded from obtaining work for reasons that did not have anything to do with the manner in which he had performed in his employment.  As it happens, he eventually stayed at David’s until June 1997, working for Adecco as a paid-up member of the Union, until, it appears, he had an accident which prevented him from continuing working.

76                  The evidence is thus sufficient to establish prejudicial alteration in this case.  Holloway would have less opportunity for any work at all than previously and than other employees.  He would have been “less secure” in his position within Adecco.  In contrast to BHPIO, where the Full Court did not feel it appropriate to inquire into possible future injury, since it found that no employees had been “singled out”, Holloway would have been “singled out” for a presumptively prohibited reason.  In further contrast to BHPIO where it was found that any injury would not have been as a result of a direct intentional act of the employer, anything that happened to Holloway would have been the result of the direct intentional removal of him from David’s by Adecco, albeit as a result of his own election not to join the Union, a choice that is specifically protected by the Act. 

77                  It is true that whether any particular redeployment would have been financially injurious (cf Geraldton Port Authority) is not known, because no particular evidence was produced of alternatives or comparative pay rates etc.  It is also true that there was in this case a degree of uncertainty of employment and a variation in the availability of work.  Nor was there any contractual guarantee of work or indeed any written contract shown that could act as a “benchmark” to ascertain Holloway’s position (cf again Geraldton Port Authority).  However, looking at the facts as they are, I think that, consistent with authority, it can fairly be said that an overnight reduction in Holloway’s opportunity for obtaining work would have been a prejudicial alteration to his position as an employee. 

78                  It might further support this conclusion to consider the analogy of a city bicycle courier who, relatively newly arrived in the city, is one day told by the radio controller or dispatcher, acting upon the incitement or advice of, say, a union of couriers to which he did not belong, that he may not again take calls for pick-ups and deliveries from the eastern side of the city.  He may not have had any calls from the eastern side anyway, and it is possible that he might that very day have had a very profitable day on the western side of the city.  However, were it not for the conduct of the dispatcher, he would have been in the “position” that he was in before, with all the normal opportunities for work.  He might have in fact done better, but the opportunity for work was reduced.  Looked at in the context of these sections, it must be said that his position would have been, as far as can be hypothesised, adversely  altered to his prejudice: even if he had to fight with other couriers to get to the pick-up first once the call came out (in the much same way that Holloway would have to call David’s), work would not be available to him if it was there, as a result of a group “singling him out” from couriers generally, and seeking to exclude him from work on the eastern side.  This is precisely the type of situation that these legislative provisions are designed to remedy.  In the present case, my impression was that Holloway might not have done better anywhere in the area, but it is his reduced opportunity that suffices. 

79                  In summing up, senior counsel for the respondents effectively conceded that:

It must be accepted if this [that is, the relocation] had happened Mr Holloway would have gone from having the possibility of working at David’s, [to the situation where] he no longer had that possibility…putting aside any question of pay rates, Mr Holloway would have had his position altered to his prejudice. His opportunities of being provided with work by Adecco were diminished. That was indisputably to his prejudice.

The problem was, so it was asserted, that there was no evidence about what this prejudice would have been in real terms, that is “how much money he would have lost” had he been relocated.  Counsel said that Holloway gave no evidence of any possible “real” loss or prejudice, which was true, and that such evidence was not sought from him, which was not quite true.  Senior counsel for the Advocate did seek to find out whether Holloway would have been worse off in terms of rates of pay at other sites, but most of the evidence thereby adduced was indirect, or was even irrelevant hearsay.  The respondents said that the lack of evidence suggests that the Advocate was purporting to present the matter as a type of ‘strict liability’ offence, because there is “no evidence whatsoever that not being able to go to David’s would have had any effect on him at all.  In fact, there may have been better paid jobs”.

80                  However, as I have endeavoured to explain, it is not only “compensable” injury that is covered, but also prejudicial alteration to the employee’s position.  There is sufficient evidence to find that in Holloway’s circumstances as a casual employee of Adecco, cleared for David’s work and by all appearances keen to take up that work (including the fact that he continued to work at David’s, until injured, five or six months later), the removal of David’s as a possibility, even if it paid the same as other possibilities, would have altered his previous position within Adecco to his prejudice.  This conclusion may be arrived at from the available facts relating to his situation within Adecco, such as they are, without needing to resort to the indirect evidence of comparative pay rates.

A prohibited reason

81                  Section 298V effectively provides that where it is alleged that conduct was carried out for a particular reason, that allegation is able to stand as sufficient proof that the conduct was carried out for the reason alleged unless and until the person who has engaged in that conduct proves otherwise: David’s Distribution Pty Ltd v National Union of Workers (1999) 165 ALR 550 per Wilcox and Cooper JJ at 582; CFMEU v Coal and Allied Operations Pty Ltd per Branson J at [159].

82                  The respondents argued that no reliance could be placed upon section 298V as it had not been properly pleaded by the Advocate in the opening words of its amended statement of claim.  That line set out that it was part of an application under various sections of the Act, amongst which section 298V was not listed.  It was also argued that the amended statement of claim did not allege that the conduct was carried out for a particular reason or with a particular intent.  These preliminary objections can be dealt with in short order. I do not think it is material that the application did not refer to section 298V.  In my opinion there is no requirement to plead section 298V expressly in order to rely on its operation.  The section is an evidential one, operational upon the sections in its Division once facts are alleged which bring an evidentiary provision such as this into operation: Australian Colleries’ Staff Association v BHP Coal Pty Ltd, citing North J in National Union of Workers v David’s Distribution Pty Ltd [1998] FCA 1530; AMIEU v G & K O’Connor Pty Ltd [2000] FCA 627 per Gray J at [27].  To my mind the relevant paragraphs of the amended statement of claim adequately allege that conduct was done for a particular reason, after which the Advocate is entitled to rely on the section 298V presumption.  It should be noted that section 298K(1) does not require the prohibited reason to be the only reason for the conduct so long as the reasons for the conduct include a prohibited reason.  The present statement of claim effectively alleges that the conduct at issue was carried out for a prohibited reason or for reasons that include a prohibited reason.

83                  Section 298V operates to alleviate the evidentiary difficulties that would otherwise be faced by a party seeking to prove the state of mind or motivation of the other party: Kelly v CFMEU (No. 3) (1995) 63 IR 119 at 126, CFMEU v Coal and Allied Operations Pty Ltd per Branson J at [161-162], AMACSU v Ansett Australia Ltd per Merkel J at [60].  In Bowling v General Motors Holden (1975) 8 ALR 197, Smithers and Evatt JJ had to consider section 5(4) of the Conciliation and Arbitration Act 1904 which also imposed an onus (in that case on the employer) of establishing that the conduct in question (dismissal) was not actuated by the reason alleged in the charge.  At 204 their Honours explained that this reversal of onus proceeds on the basis that:

…the real reason for a dismissal may well be locked up in the employer’s breast and impossible, or nearly impossible, of demonstration through forensic processes.

84                  On appeal to the High Court (General Motors Holden v Bowling (1976) 12 ALR 605) Mason J further developed this contention.  Having regard to the manner in which such a provision operates, his Honour said at 617:

Section 5(4) imposed the onus on the appellant of establishing affirmatively that it was not actuated by the reason alleged in the charge.  The consequence was that the respondent, in order to succeed, was not bound to adduce evidence that the appellant was actuated by that reason, a matter peculiarly within the knowledge of the appellant. The respondent was entitled to succeed if the evidence was consistent with the hypothesis that the appellant was so actuated and that hypothesis was not displaced by the appellant.

85                  In considering the manner of the satisfying the onus of proof with regard to the reasons for the allegedly prohibited conduct of the respondent, Justice Nicholson in Geraldton Port Authority considered the submission that it was not required that the respondent establish positively what its reasons for the relevant conduct were.  Saying that proof that the respondent was actuated solely by non-prohibited reasons would conceivably suffice to discharge the onus, his Honour observed at 116:

The onus is on the [respondent] to displace the hypothesis raised on behalf of the applicants. One sure way of discharging that onus is to adduce evidence from which it is established that the [respondent] was actuated solely by non-prohibited reasons. That is, to establish what the reasons were, as they lie peculiarly within the knowledge of the respondent: cf Bowling at 617 per Mason J. In my view that is not to preclude the onus being discharged in some other way. Here however the case for the [respondent] seeks to establish the actual reasons of each of the members and hence of the [respondent].

I agree with the further submission for the [respondent] that the existence of reasons for such conduct which do not fall within s 298L of the WR Act will assist the Court in concluding that proscribed reasons were not included among the reasons for the conduct.

At 123 Justice Nicholson found that the relevant members of the respondent port authority had not rebutted the presumption of the presence of prohibited reasons, and that it therefore followed that the respondent was taken to have acted for the alleged prohibited reasons in making the relevant decisions and in their implementation.  See also Heidt v Chrysler Australia Ltd (1975) 26 FLR 257.

86                  Recently in AMACSU Justice Merkel usefully summarised the conclusions, based on cited authorities, of Justice Nicholson in Geraldton Port Authority relating to the reversal of the onus of proof under section 298V (the references being to the judgment of Justice Nicholson):

·        if the applicant proves the conduct and alleges that it was carried out for a proscribed reason, it is for the respondent to prove, on the balance of probabilities, that it was not motivated for an impermissible reason (at 99)

·        a reason is an impermissible reason if it is one of the operative reasons for the conduct (at 100)

·        to be an operative reason there must be a causal connection between the conduct and the proscribed reason relied upon by the applicant (at 114)

·        whether the respondent was actuated by a prohibited reason or reasons which included a prohibited reason is a question of fact which will often involve questions of judgment and the characterisation of the employer’s reasons (at 114)

87                 Under previous legislative schemes the onus upon respondents was to establish that the reason alleged, such as non-membership of a union, was not a “substantial and operative” reason for acting as they did when they prejudicially altered an employee’s position: see generally Mikasa (N.S.W) Pty Ltd v Festival Stores (1972) 127 CLR 617; Cuevas v Freeman Motors Ltd (1975) 25 FLR 67; Wood v Lord Mayor City of Melbourne (1979) 41 FLR 1; Linehan.  In Bowling,referred to at [84], the majority of the Industrial Court, considering section 5(4) of the Conciliation and Arbitration Act 1904, stated at 200:

Reading s 5(4) as part of section 5 taken as a whole, we are of the opinion that a particular action taken by an employer may be said to have been actuated by a particular reason or circumstance if the reason or circumstance was a substantial and operative factor influencing him to take that action. Further an employer may have said to have been actuated by a particular reason if it was a substantial and operative factor influencing him to take that action, although that reason was but one of a number of reasons that so influenced him.

It is in this sense that to support its plea of not guilty the burden is cast upon the defendant to prove to the satisfaction of the Court, as on a balance of probabilities that in dismissing the informant it was not actuated by the circumstances that the informant was a shop steward.

88                  The appeal to the High Court, referred to at [84], was dismissed.  Mason J (with whom Stephen and Jacobs JJ agreed) approved of a reading of the section that required only that the prohibited reason be a “substantial and operative factor”, and not that the prohibited reason be the sole or even the predominant reason for the dismissal or other prohibited conduct.  He did say, however, that if the possibility that the conduct was for a prohibited reason was no more than “slender”, the reason or circumstance might then be regarded as not being a “substantial and operative factor”.  At 619 Mason J said:

We are left, then, with a reason for the dismissal which does not exclude the possibility that it was associated with the circumstance that the respondent was a shop steward.  If this was no more than a slender possibility the circumstance might be discarded as one which was not a substantial and operative factor in the dismissal.  However, I have already said enough to indicate why the possibility cannot be so regarded – the respondent’s office as a shop steward endowed him with a special capacity to influence others and was therefore not easily dissociated from his ability to set an example to others.

It was suggested that even if the appellant’s management had regard to the respondent’s position as a shop steward in dismissing him, that was not enough to bring the case within s5(1)(a).  The short answer to this suggestion is that s5(1) does not proscribe the circumstances which it lists as the sole or predominant reasons for dismissal.  It is sufficient if the circumstance is a substantial and operative factor.  And it does not cease to be such a factor because it is coupled with other circumstances or because regard is had to it in association with other circumstances not mentioned in the section.

89                  The respondents sought to play down the effect of the “substantial and operative factor” concept.  They argued that given the “expansion and complexity” of the provisions since the original Conciliation and Arbitration Act, “it may now be too loose a use of language to suggest that a breach is made out by demonstrating that the reason was a substantial and operative factor”.  Instead, they argued, the current legislation appears to be “somewhat tighter”.  Section 5(4) of the Conciliation and Arbitration Act 1904 spoke only of the requirement as not being “actuated by the reason alleged”.  With the enactment of the Industrial Relations Act 1988, the predecessor to the present Act, sections 334(6) and 335(3) spoke of being “not motivated (whether in whole or in part) by the reason…specified in the charge” (emphasis added): see Kelly at 129.  In its present form section 298K(1) speaks of the motivation not being “..for a prohibited reason, or for reasons that include a prohibited reason..” (emphasis added).  The respondents’ submission on this point must therefore fail.  If anything, the present form of the section is wider than simply the “substantial and operative reason” test applied in former cases.  In this regard Justice Merkel recently observed in AMACSU at [70] that:

The outcome in GMH v Bowling was primarily concerned with whether the employer discharged its onus of proof for the purposes of s5(1) which, at the time, was held to require that the proscribed reason be a substantial and operative factor influencing the person to make the decision.  Under s298K it need only be an operative reason for the decision

90                  In Kelly Justice Moore noted at 130 that the purpose of the legislative provisions had to be borne in mind when considering the operation of sections such as section 298K and its predecessors where those sections are identifying activities, such as membership of unions, which the Parliament considers that a person should be able to resist having to engage in in the workplace without thereby suffering prejudice.  I agree with his Honour that it is apparent from the Act that the provisions are intended to be protective of the rights of employees in that context, and that accordingly the proof (or more accurately, disproof) of a motive or reason has to be “viewed with that purpose in mind”.

91                  The respondents said that Hearne’s reason for acting was only motivated by a desire to prevent an industrial dispute.  It was also argued that there was no “prohibited reason”, because if Adecco had followed Hearne’s advice, or been moved to act by his encouragement, and removed Holloway from David’s, its reason for doing so would have been to prevent itself from suffering loss from possible industrial action.  This submission depends upon a construction of section 298P(3)(a) that the relevant “prohibited reasons” are those of the employer subject to the advice or incitement or encouragement.  The Advocate proposed that there are two ways of construing section 298P(3).  The first holds the “reasons” of the employer to be irrelevant, because it is the motivations or reasons for acting of the person inciting etc the employer that must not be prohibited.  It was said that this construction follows from the fact that the offence is constituted by the giving of advice etc and there is no need to hypothesise upon what the reasons of the employer might have been had the employer followed the advice.  On this construction, the Advocate said that Hearne’s reason for acting was that Holloway was not a member of the Union, and this is a prohibited reason.  The respondents’ submissions as to the employer’s reasons for acting are on that view irrelevant.

92                  A second possible construction of the section contended for was that it assumes that the employer has acted upon the advice etc for the same reason that motivated the person to give the advice.  It imputes the reasons motivating the person giving that advice to be among the reasons for the employer accepting the advice and acting upon it.  On this reading the section means that it is a common reason for acting that must be a prohibited one, so that if it is shown that the employer acts upon the advice solely or completely for other reasons, there is no ‘prohibited reason’.  It is not necessary to decide this point. It is difficult to say what the employer’s reasons for acting might be.  Moreover, the legislative provision takes account of the fact that the employer’s reasons for acting might be many and will probably be unknown. It is the conduct of the officer that is the focus of section 298P(3)(a) and not that of the employer.  The section does not require the employer to act at all, for it is the incitement to act that constitutes the contravention.  Unless it is shown that no prohibited reason would have been involved at all, it must therefore be irrelevant that the employer might have, had it acted, also had other reasons for acting.  Where an employer, as in this case, does not accept or act upon the advice etc, it is not a requirement of Part XA, equipped as it is with a presumption of prohibited reasons for acting, to speculate upon what the employer’s reasons for accepting the advice may have been.  It is for the alleged inciter to show that none of the operative reasons for the action of any party was or would have been a prohibited reason.

93                  It may be that the offence is not committed where, after incitement for a prohibited reason, the employer acts upon it for reasons that are shown not to include that reason.  In this sense there may be an element of causation involved.  However, it will be for the inciter to show that no prohibited reasons subsisted and operated, or would have operated, on the conduct of the person acting upon the incitement.  On the authorities, it is sufficient to say that if the inciter can show that the employer, if it had acted, would have been motivated solely by non-prohibited reasons, it might be sufficient, depending on the evidence, to escape liability.  The problem is that the whole matter would appear mostly to be a matter of conjecture.  It is also difficult to imagine that conduct pursuant to an act of incitement motivated by a prohibited reason was not also itself based at least partially on this reason.  Such is the nature of advice or incitement, the reason would almost inevitably be “operative” because the act of incitement presumably instigated the employer’s action, even if the employer had another ‘agenda’ or other reasons for acting.  If the reason or one of the reasons why the inciter advises the employer to act is a prohibited one, the section assumes, until it is otherwise proven, that any conduct that would have been taken pursuant to that advice was also partly for that reason.

94                  The respondents said that there was no prohibited intent or motivation in Hearne’s actions since he said in his affidavit that he was not seeking to harm Holloway in any way, but was instead trying to settle a possible dispute that was likely to erupt among Union members at the site because the ‘closed shop’ was not being observed.  It is true that there was no evidence of Hearne himself subjecting Holloway to any undue pressure or intimidating him during the conversation that they had about Union membership, and that there is no real difference in the versions offered by Holloway and Hearne as to the nature and content of their discussion.  A dispute of sorts did, however, appear to be brewing.  Holloway that said some of his fellow workers were asking him to join up and had told him that a meeting was to be called to see what could be done about his non-membership.  The respondents’ submission on this point was:

….Mr Hearne’s position was that as an organiser he was aware of the strong union support at David’s and was concerned at membership reaction to Holloway not joining the Union. As organiser he was aware of State by State agreements with employment agencies and other employers for preference of employment with the employer ensuring membership through payroll deductions. Indeed he had made the closed shop agreement with a certain Mr Linehan when the latter was manager of Adecco in the early 90’s. He saw the situation as one which was about to erupt industrially following the failure of the local delegate, Mr Jacobs, in enrolling Mr Holloway in the NUW…it is clear from the evidence that Hearne was attempting to head off a potentially nasty dispute and was trying to engage Routledge in negotiations with the intention of avoiding or settling that dispute…there was a potentially explosive dispute about union membership at David’s raised by the employees which could not be resolved by the delegate and that [Hearne] had taken steps to have a meeting between [Adecco], David’s and the Union in order to sort out the problem…he was trying to settle the dispute and had no animosity towards Holloway nor was he trying to injure Holloway in his employment or alter his position to his prejudice.

The respondents added that it was clear from the evidence of Belan and Lloyd Freeburn, senior officers of the Union, and from the rules of the NUW, that the role of an organiser was not to create disputes but to settle them, and this was all Hearne had the intention of doing.

95                  In support of the submission on Hearne’s reasons for acting, there was a great deal of reliance placed upon the “widespread arrangement” in the industry that employers would provide a payroll deduction facility for Union membership and that employees would be enrolled in the Union.  Hearne said that he made this arrangement in the early 1990s with a Mr Linehan of Adecco and that during the course of these events he had operated under the impression that the agreement was still good and had never been terminated.  It was effectively common ground that the site in substance operated as a ‘closed shop’ before January 1997, although no other evidence of an “agreement” to this effect was forthcoming.  Perhaps it is more accurate to describe Adecco’s understanding of this situation as an “arrangement”.  The respondents argued that it was in fact possible under the Act at that time to reach such a preference agreement and even have it certified under the Act, citing CEPU v Woodside Heating Pty Ltd & Others, a decision of the Australian Industrial Relations Commission dated 27 June 1997 (decision 738/97, unreported).

96                  Routledge was aware of the preference for Union employees that operated at David’s, and aware of agreements that the Union had with Drakes, another employment agency, where again only union members were supplied, although she said that she was unaware of any ‘closed shop’ agreement as such.  The respondents said Routledge was “offended” by Hearne’s approaches because “she was of the view, mistaken as it turns out, that the Company could not enter into such an agreement with the NUW because of the new [Act].”  They said that “whether or not he was aware of the full ramifications”, Hearne was still “entitled to press Routledge for an agreement on preference of employment and to have it applied to the vacancy at David’s.”  Of course, there would only be a “vacancy” if Holloway was removed.  Routledge accepted that when Hearne called her at 8:30 am on 31 January 1997 he was suggesting to her that sending people on site who were not union members was “causing problems at the work site.”  While she accepted that he could have meant that members “did not like non-members coming in and enjoying the benefits secured by unionists”, it was said that she “did not really grasp that it was not just Hearne who was upset but the members.”  It was therefore said that the reason the conversation may have been perceived as incitement etc was that Routledge “did not understand that there was any just cause for the dispute”, whereas in fact, it is said, a preference agreement existed.  Thus the argument went that Hearne was only a union official trying to avoid a dispute by referring the employer to the existing agreement, with no intention that the employee be in any way prejudiced.  The respondents sought to attribute the fault to Routledge for not being “open minded” about the matter.  They said that her “mistaken” views on the existence of an agreement or the validity of now relying on it “not surprisingly…resulted in her resisting Mr Hearne’s overtures and led to some heated discussion between them.” 

97                  The respondents asked that the Court not pay any attention to evidence relating to Hearne’s alleged conduct at the meeting that day after Holloway had joined the Union.  It is true that the critical conversation is the point at which the sections were either breached or not: Roberts at [5].  It is not surprising that the respondents sought to label this evidence irrelevant, as indeed it was to the commission of the offence.  By all accounts it indicated that Hearne was extremely upset and repeatedly used harsh language.

98                  Woodside Heating was cited as if it stood for the proposition that it was lawful at that time to have certified an agreement with an effective clause providing for preference in employment to union members.  That is not what the decision was.  It only said that the Commission had no discretion at that time to refuse to certify an agreement that contained a preference clause simply because the clause may have been void by virtue of section 298Y of the Act.  That section makes any provision in an industrial agreement void to the extent that it requires or permits any conduct that would contravene Part XA.  The Commission might not have been able to refuse to certify an agreement with a void preference clause, but it was nevertheless unlawful at that time to advise, encourage, or incite an employer to act in a way that would breach section 298K.  In other words, even if it were possible to have certified an agreement with such a clause, it would be unlawful to seek to enforce it by means of conduct that breached Part XA.  That conduct is the focus of the Court’s enquiry, not the fact that the officer was after some higher goal of preventing disputes or simply trying to retain adherence to the ‘closed shop’ agreement.  In any case, if Hearne’s conduct is characterised as pressing Routledge to apply the agreement rather than as advocating the removal of a non-union employee, he was in effect and quite openly on the language encouraging her to discriminate against Holloway because he was not a union member.  That is exactly the situation that Part XA is designed to remedy.

99                  It is, in my view, very artificial to suggest that Hearne’s reasons for acting were to settle a dispute and that these reasons were completely unconnected to the reason why that dispute was arising.  It is simply not realistic to argue that the reason there is a pending dispute is because one employee does not wish to become a union member but that the inciter’s reasons for acting are only to prevent the dispute and have nothing to do with the fact that the employee does not wish to join the union.  The Act prohibits resort to incitement etc in attempting to reach a settlement where the Parliament has deemed the reasons underlying the behaviour to be illegal.  The underlying reason for the potential dispute, an employee’s non-membership, was also the reason or one of the reasons why Hearne called Routledge and advised that Holloway be moved.

100               In Linehan,the employer had not proved that when it altered the employee’s position to his prejudice, it did not do so for the prohibited reason that the employee was not and was not willing to become a member of a union.  The employer had argued that the reason that it ‘terminated’ the employee’s employment was to avert a possible strike, and not because the employee had a conscientious objection to joining the union concerned and would not subscribe to it.  In a manner identical to that adopted by the respondents in this case, the employer claimed that it believed that it was a matter for the employee to decide whether he joined the union and that it was not trying to force him to do so.  The employer said that when it refused to re-engage the employee it was motivated by a desire to avoid an industrial dispute.  Ellicott J noted that despite this explanation of its motives, it was clearly apparent that when the employee indicated that he was sticking to his previous position as a conscientious objector and would not join the union, his position in the defendant was effectively ‘terminated’.  On this basis Ellicott J held:

In the circumstances it is difficult, if not impossible, in my view, to avoid the conclusion that a substantial reason why Mr Foley’s employment was terminated was his refusal to join the union. Had he joined his position would not have been prejudiced.  When he persisted in refusing to join it, it was the fact of his refusal that led immediately to the termination of his employment with the defendant.

The defendant’s object in persuading him to join the union or in terminating his employment when he would not, may well have been to avoid an industrial stoppage.  But the cause of the prejudice he suffered at the defendant’s hands was the fact that he refused to become and therefore was not at that time a member of the union.

101               In Wood, cited at [87], Smithers J decided that the strike-related conduct of the employee was not, in the mind of the city council’s representative, an operative reason for acting.  The case was cited unsuccessfully before Ellicott J in Linehan in support of the contention that the reason for acting was not non-membership of the union concerned, but only an attempt to avert an industrial stoppage.  In much the same way as his Honour rejected the proposition.  I do not consider that the decision on the facts in Wood assists the respondents’ argument

102               Taken as a whole, the reason why Hearne was involved at all in all these events is that Holloway did not wish to join the Union.  Part XA exists to protect the person who makes that choice.  Hearne may not have directly intended any personal injury to Holloway but he advocated the employee’s removal from the Adecco list for David’s, a course of action that, if taken, would have led to Holloway’s position being altered to his prejudice.  Hearne took that course because Holloway was not a union member and this fact was causing concern among his members.  At least one of Hearne’s reasons for acting was therefore that Holloway was not a member.  This reason is prohibited.

103               Accepting that Hearne may have been trying to settle a dispute provides one of his reasons for acting but it is clear that a prohibited reason was also substantially involved.  The overriding aim of the Act is the prevention and settlement of disputes.  But it does not permit union officials to undertake any conduct to achieve that goal and then say that the only reason for their actions was dispute settlement.  The effect of section 298V is that the respondents need to show that not one of the operative reasons for Hearne’s encouragement of Adecco to move Holloway was that Holloway was not a member of the Union.  In my opinion, it is not permissible to disconnect Hearne’s claim that he was trying to avoid a dispute (employing a non-member in a ‘closed shop’) from the cause of the dispute (a non-member on site) and the means he advocated of avoiding the dispute (removing the non-member).

104               I find that Hearne incited, advised or encouraged the Adecco to remove Holloway from David’s at least in part because he would not join the Union.  Had Adecco followed this advice etc, it would have done so for the same reason or for reasons that included the same prohibited reason, even if it may have had other reasons for acting as well.

Whether the Union is in breach: was Hearne acting in his capacity as an officer of the Union?

105               One of the grounds upon which the Union claimed that the Advocate had failed to show that Hearne was acting in his capacity as its officer was the failure to establish in which capacity Hearne was acting.  The Union said that the Advocate wrongly pursued the federally registered Union whereas Hearne was also an officer of the State-registered union.  If he was acting in the capacity of an officer of any union, it was the State-registered union, since the certified agreement under which the employees of David’s worked was entered into by that union.  The respondents devoted some twenty paragraphs in their submissions to the argument that the Advocate had failed to correctly identify the relevant union, saying that it was “an issue of substance”.  The respondents said that the Advocate conceded that one person can operate in a number of capacities at one time, and assumed that the proper respondent was the federally registered union without establishing that that was the case.

106               It is useful in this respect to consider the decision of Justice Moore in Kelly, earlier referred to, where his Honour had to determine for which union the officer was acting when his conduct allegedly breached section 335 of the Industrial Relations Act 1988 by inciting etc a company to take action in relation to a certain employee.  Not unlike Hearne, the officer concerned held two offices in the union, but it was argued that he was at the time acting as an officer of a State-registered union and not the federal union named as the respondent.  His Honour held that the prosecutor had failed to make out his case in an essential element by not demonstrating that the officer was acting as an officer of the federally registered union and by not excluding the possibility that he was acting in another of his organisational capacities.  At 132 his Honour noted that there was material supporting the federal union’s argument, including that the agreement relating to the site was arguably signed by the State and not the federal union, because it was signed as the named union with the words “New South Wales branch” which his Honour took to be suggestive of an agreement at State level.  The relevance of this evidence tending to show that the officer may have been on the site in another capacity was said by his Honour to be that it provided a plausible reason why he was on the site, so that the mere fact that he was on the site was of “little probative value” in establishing that he was there in his capacity as an officer of the federal union.  “On any view”, his Honour said, “he was plainly on the site in the capacity of a union official”.  Having noted that there was no reason why a person could not have been acting in both capacities, his Honour held that the issue was whether it had been shown, in that case beyond reasonable doubt, that the officer was acting in the capacity as an officer of the federal union.  At 135 his Honour held that:

……while there are matters the prosecutor has pointed to which are consistent with McArthur acting in his capacity as an officer of the defendant, none provides unambiguous evidence either directly nor inferentially, that it was in his capacity as [an officer of the defendant] that he attended at the city construction site and acted in the way he did. Moreover his presence on the site is capable of being explained on the basis that he was there in his capacity as an organiser of the [New South Wales State-registered union].

His Honour expressly adopted a strict approach to the ambiguity on the basis that the effect of the section was to impute conduct to an organisation for the purposes of establishing criminal liability.  The union was therefore entitled to the benefit of the doubt that existed over the identity of the proper union notwithstanding the fact that, as his Honour observed, the distinction between State and Federal registered entities is at times artificial in appearance and somewhat of a “web of problems and technicalities”: at 136.  See also Moore v Doyle (1969) 15 FLR 59 at 123.

107               In the present matter, the Storeworkers-David’s Distribution Pty Limited Fyshwick ACT Enterprise Agreement 1996 (the agreement) was admitted in evidence as an annexure [“A”] to the affidavit of Anthony English.  The agreement is attached to a decision of the Australian Industrial Relations Commission dated 27 November 1995.  The only potentially helpful reference to the identity of the union that was party to the agreement appears in the first paragraph of the agreement.  This reads:

THIS ENTERPRISE AGREEMENT made on the 20^th day of October One thousand nine hundred and ninety five between DAVIDS DISTRIBUTION PTY LIMITED and THE NATIONAL UNION OF WORKERS, NEW SOUTH WALES BRANCH, a registered Industrial Union of Employees hereinafter referred to as the “Union”.

It was argued that the first respondent, the federally registered Union, was not a party to that agreement, instead that it was the State-registered union that obtained this agreement, being the “National Union of Workers, NSW Branch”.  Hearne was an elected organiser in the State-registered union as well as the federally registered Union.  Belan was “Branch Secretary of the NSW Branch of the NUW”, that is the federally registered union, and was also State Secretary of the State-registered union under the name “NUW NSW Branch”.  The agreement was signed by Belan, it was submitted, on behalf of the State-registered union, and not by the National Secretary of the federally registered NUW that is the respondent in this case.  No clarity on this matter was sought or obtained from Belan by either side when he appeared as a witness.  Moreover, the possibility that Hearne was acting in his capacity as an officer of the State-registered union was not referred to as such. 

108               The respondents argued that the agreement was clearly a document signed by Belan in his capacity as the secretary of the NSW registered union.  To my mind, however, the matter is not so clear at all.  Above Belan’s signature it is set out that the agreement is “signed for and on behalf of the National Union of Workers NSW Branch”.  It was said that the only place where the “NSW Branch” is registered as a union is in New South Wales, and that the State-registered union is the body generally referred to as the “National Union of Workers NSW Branch”, while the local branch of the federally registered union is referred to as “the NSW Branch of the National Union of Workers”. 

109               The union card that Jacobs was attempting to persuade Holloway to sign is an application for membership of both the federal and State-registered unions.  It is a two-sided card.  One side sets out that it is an application card for membership of the “National Union of Workers” below which is written in slightly smaller print “New South Wales Branch”.  Below this again is a descriptive sentence that says: “A State Industrial organisation of Employees registered pursuant to the Industrial Relations Act 1991 (N.S.W)”.  The reverse side shows that it is an application card for the “National Union of Workers”, below which there is a descriptive sentence that reads, “A Federal Organisation of Employees registered pursuant to the Industrial Relations Act 1988 (Commonwealth)”.  Both sides of the card carry the instruction “Please complete both sides”.  When he joined up, Holloway signed both sides of the card. 

110               The Advocate said that Holloway’s refusal was to join either union, although there is no indication that he perceived of any difference between the two.  I mention this because had Holloway objected to joining one but not the other, that might have pointed to the ‘hat’ that Hearne was wearing when he acted as he did upon this refusal.  Jacobs was hoping to persuade Holloway to sign the application card, which involved joining both the federal and State-registered entities.  Both Hearne and Jacobs wished Holloway to “join the Union”, which could have meant either.  The Advocate’s position was that the evidence, including Hearne’s affidavit, made clear that he would deal with David’s and the employees of David’s in his capacity as an organiser for the federal Union.  If this is so, it does not really matter that he may also have been acting in his capacity as an officer of the State-registered union and for its benefit when he sought to resolve the Holloway membership issue.  In other words, it was said that in so far as Holloway would not join the federally registered Union, Hearne’s actions were on behalf of and attributable to that Union. 

111               It may well be that the enterprise agreement was signed by Belan for and on behalf of the State-registered body.  On the other hand, although the agreement may tend to indicate, as it did in Kelly, the capacity in which the officer attended the site, it would be irrelevant which body was party to the agreement, so long as it could otherwise be established that Hearne was acting in his capacity as an officer of the federal Union when he allegedly breached the terms of the Act.  The criminal standard of proof is not operative here, as it was in Kelly.  It is thus for the Advocate to establish by evidence other than the agreement, on a balance of probabilities, that Hearne was acting in his capacity as an officer of the Union that is the named respondent.  The evidence shows that the apparent reason for Hearne’s attendance on the site, and his conversations with Routledge, did not arise out of or relate to the enterprise agreement as such, but to an issue of union membership and the ‘closed shop’ arrangement which was not part of the agreement.  That membership, when it was signed up for, was for both the federal and State-registered unions.  In addition, this dispute took place in the ACT and there was evidence that it was the function of the New South Wales-registered union to operate there.  In fact, the rules of the State-registered union which were in evidence do not purport to extend to the ACT at all, the only mention being where the transitional provisions for some amendments to the rules under rule 45 list the names of office holders whose positions would remain the same and where part of Hearne’s address in the ACT is given.  As stated at [63] the ACT was covered by the New South Wales Branch of the first respondent, the federally registered Union, under rule 37 of the Union’s rules.  As stated at [64] Hearne’s own evidence was that his involvement in ACT affairs arose from his position as an organiser for the federally registered body.  

112               Hearne’s presence on the site and his conversations might have had a State element, and the Advocate could have presented his case by alleging in the alternative that Hearne was acting for the State-registered body.  However, given that the membership issue was one that involved both bodies, I am persuaded that the Advocate has sufficiently discharged the onus of proof in this regard that the critical conversation arose from Hearne’s role as an official of the first respondent.   Having regard to the fact that different considerations apply than in Kelly, I do not think that the failure of the Advocate to further differentiate between the two Union bodies is significant. 

113               The Union next contended that even if Hearne is personally liable for breach of the relevant sections, and even if the Advocate is found to have sufficiently proved that the relevant conversation with Routledge was undertaken in his capacity as an officer of the first respondent, the Union still cannot be liable since Hearne was not acting under any instruction from the Union or his seniors in the Union structure, nor was he acting within the rules of the Union.  The Union pointed out that the Advocate had made no attempt to deal with the authority of Hearne to take the critical action, and presented no analysis of the Union rules in order to determine whether Hearne was acting within their terms.  Belan testified that at no time during the relevant period did Hearne seek his instructions on the course to be taken in relation to any dispute over membership, nor did Belan, as Branch Secretary, give any directions to Hearne or require that he take any action in relation to any dispute over membership.  Belan referred to the rules of the Union, in particular rule 71(18)(a) which provided that “all Branch organisers shall be under the direct supervision and control of the Branch Secretary”.  Likewise, rule 71(18)(d) provided that “the duties, functions and area and location of work of organisers shall be determined by the Branch Secretary”. 

114               It was said that under these rules Hearne did not have any authority to create a dispute over membership.  For present purposes that assertion may be accepted but the case was elsewhere argued by the respondents not on the basis that Hearne had instigated a dispute but that he was trying to resolve one that was not of his creation.  There is therefore no issue as to whether he had authority to create a dispute, because on the respondents’ own case, the dispute was created by others.

115               The effect of section 298B(2) is that if it is found that a Union officer was acting in an official capacity, the officer’s actions are taken to have been done by the union concerned.  Hearne was an officer of the first respondent. Belan acknowledged that Hearne had the authority to assist workplace delegates in resolving matters that they were unable to resolve.  From the evidence I think that he represented the Union in the Canberra region when matters of concern arose that could not be resolved by the Union delegates located in the workplace.  It is clear on the evidence adduced from both sides that Hearne would deal with matters such as membership at David’s as the Union organiser.

116               In this case Hearne became involved after a non-union employee joined the workplace and refused to join both the Union and its state counterpart (although no differentiation between them was made at the time), and the local delegate was able neither to persuade him to do so nor to prevent the apparent escalation of ‘unfriendly’ feeling among the existing members towards Holloway because of his non-membership.  Hearne became involved in two ways.  He personally tried to persuade Holloway to join the Union, and he contacted the employer in circumstances that eventually led to the conversation that is the subject of inquiry.  It is significant that Hearne commenced involvement with the employer by saying to Routledge that he was from the “NUW”.  Again the ambiguity as to which body this refers to, if they are indeed distinct, is evident.  In fact Routledge said that the first contact that she had with Hearne involved words to the following effect:

He said “Hello, I’m Peter Hearne of the NUW”.

117               The Advocate said that this remark further supports the fact that he was acting as a representative of the Union.  Holloway joined the Union.  Since the Union was the direct beneficiary of Hearne’s involvement in the matter, it is liable for the acts that he as an officer committed.  The Advocate argued that a union will be civilly liable for the acts of its officers that were committed in the course of their service for the benefit of the union: Taff Vale Railway v Amalgamated Society of Railway Servants [1901] AC 426 at 433; Giblan v National Amalgamated Labourers’ Union [1903] 2 KB 600 at 617, 620 and 625.  It said that the effect of section 298B(2)(b) is to make unions liable where the officer’s conduct occurs in circumstances that would render the union liable if the conduct was a civil wrong.

118               The respondents said that this submission is contrary to “more relevant authority”, being the decision of Keely J in GTS Freight Management Pty Ltd v TWU (1990) 25 FCR 296.  This was a case of contempt involving consideration of whether a union could be held liable by virtue of the conduct of an officer of one of its branches.  The employer sought to rely on the rules of the union concerned to impute liability to it.  The Court held that the rules of the union concerned did not provide a basis for the imputation of liability for contempt upon it.  This case does not appear to have any bearing on the present case, as the Advocate did not rely upon the rules of the Union in order to impute liability.  Instead, it relied on the statutory imputation of liability effected by section 298B of the Act, which may not necessarily be limited by what may or may not be contained in the rules of the particular union.

119               It is unlikely that section 298B(2) is limited to imputation for actions shown to have been done with express authority.  In Employment Advocate v TWU & Others cited at [20], Justice Cooper, having considered the term “officer” as used in Part XA, said:

The defining feature of s298B(2)(b) is that the officer or agent is acting in that capacity.  The definition excludes conduct not undertaken in the capacity of officer or agent.  The authority of an officer to act on behalf of and to bind the industrial association depends upon the extent of the authority which attaches to the particular office or agency.  However, within those limits, it is an authority to carry out the duties of the office or to carry into effect the terms of the agency.

The respondents conceded that in using the term “authority”, his Honour was not necessarily saying that there were no instances where the conduct of the officer might be attributed to the union even though the ‘internal’ authority of the officer to act, under the rules of the union, was exceeded.  Without making any observation on whether and in what manner a special vicarious liability exists in these types of cases, I do not think that his Honour’s words could be taken to mean that in any situation where an officer has acted in a manner apparently within his authority the union of which he is an officer could escape liability under the Act simply by saying that he was not acting by the rules of the union when he acted.  Union rules are hardly likely to accommodate conduct that contravenes the law, but that does not mean that unlawful conduct can never be attributed to the union, as the Act clearly seeks to do.

120               Despite Belan’s evidence that he did not authorise Hearne to take any action at all in this matter, it is reasonably clear from the evidence that Hearne would generally deal with matters referred to him by the site delegate as an organiser for the Union.  The fact that he had done so in the past, and that he introduced himself as being an organiser of the Union, is evidence enough of the “extent of his authority”.  It is in this capacity that he visited David’s from time to time.  It is in this capacity that he sought to avert on-site problems by advising Adecco to move Holloway off-site.  This was a membership issue affecting all the members on site, and was therefore a Union issue of the type that Hearne was normally called in to handle once it had escalated beyond the ability of the on-site delegate to control.  No doubt if it had escalated further, Hearne would have notified Belan.  He was acting as an organiser when he advised etc Adecco, and part of the result of his involvement was that the employee concerned became a member of the Union. 

121               No doubt a union official could act so far beyond the rules and the ostensible authority or general capacity of his office, which is not limited to the rules, that it would be impossible to attribute his conduct to the union.  Moreover, the sections provide for penalties for conduct that is really only attributed conduct.  But all parties concerned, from Jacobs to Holloway to Routledge, to the other Adecco and David’s people he met and talked to about the dispute, dealt with Hearne during these events by treating him as an organiser of the Union.  He certainly spoke and acted in that way, and his activities, if not his methods, were, I think, part of his role as an organiser.  I conclude that the Union was responsible, and is thus liable, for the conduct of Hearne accordingly. 

Conclusion

122               Section 298U(a) provides that the Court may, where it considers it appropriate, make an order imposing a penalty upon a person or persons found by their conduct to have contravened Part XA.  While in the opening stages of argument the Advocate asked that, should the Court find against the respondents, it impose the maximum penalty available to it under the section, the parties have not yet really argued the issue of penalty for any contravening conduct found.  In these circumstances it is appropriate to merely pronounce declaratory relief, that the respondents’ conduct of 27 January 1997 constituted a contravention of Part XA, and to require the parties to provide the Court with submissions as to the penalty to be imposed.  I shall give directions accordingly.

Associate:

Dated:              29 May 2000