FEDERAL COURT OF AUSTRALIA

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing & Allied Services Union of Australia v ACI Operations Pty Ltd

[2005] FCA 1662

INDUSTRIAL LAW – Part XA Freedom of Association – alleged termination of employment for a prohibited reason – whether applicant’s alleged status as a union delegate an operative reason in his dismissal – whether applicant is a delegate – whether respondent discharged onus of proving the prohibited reason not an operative factor in the termination – whether s 298L(1)(n) operates to alter effect of s 298L(1)(a) – whether termination occurred for reason that applicant had done an act for the purpose of furthering the industrial interests of the union, being a lawful act and one within the limits of the authority expressly conferred under the rules of the union – whether reinstatement appropriate

Workplace Relations Act 1996 (Cth) ss 298K, 298L(1)(a), 298L(1)(n), 298P(3) 298T, 298U and 298V

Building Construction Industry Improvement Act 2005 (Cth) s 45

Conciliation and Arbitration Act 1904 (Cth) ss 5(1), 5(4) and 5(5)

Industrial Relations Act 1988 (Cth) s 334(7)(b)

General Motors Holden v Bowling (1976) 12 ALR 605, referred to

Maritime Union of Australia v Geraldton Port Authority (1999) 93 FCR 34, referred to

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

Plumton v Cathay Hotel Pty Ltd (1987) 21 IR 410, discussed

Bowling v General Motors-Holden Pty Ltd (1980) 50 FLR 79, applied

Elliott v Kodak (2001) 108 IR 23, followed

Ponzio v Multiplex [2005] FCA 1410, referred to

Jarrad v Silver Top Taxi Service (1980) 29 ALR 533, applied

Davids Distribution Pty Ltd v National Union of Workers (1999) 91 FCR 463, referred to

Australian Workers’ Union v Johnson Matthey (Aust) Ltd [2000] FCA 728, referred to

Construction, Forestry, Mining & Energy Union v Coal & Allied Operations Pty Ltd (No 2) (1999) 94 IR 231, referred to

COMMUNICATIONS, ELECTRICAL, ELECTRONIC, ENERGY, INFORMATION, POSTAL, PLUMBING AND ALLIED SERVICES UNION OF AUSTRALIA v ACI OPERATIONS PTY LTD (ACN 004 230 326)

VID 1271 OF 2005

MARSHALL J

18 NOVEMBER 2005

MELBOURNE

THE COURT ORDERS THAT:

1.                  On Monday 21 November 2005, pursuant to s 298U(b) of the Workplace Relations Act 1996 (Cth), the respondent reinstate Mr Colin Williams in the employment position which he held prior to his unlawful termination on 12 October 2005.

2.                  The question of the appropriate compensation to be paid to Mr Williams and the question of the appropriate penalty to be imposed on the respondent be reserved.

3.                  The respondent file and serve its submissions on the questions of the appropriate compensation and penalty within 14 days of the date of this order.

4.                  The applicant file and serve any submissions in reply within a further 7 days.

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

REASONS FOR JUDGMENT

1                     Mr Colin Williams had his employment terminated on 12 October 2005. Until then he had worked for ACI Operations Pty Ltd for his entire working life. Shortly before his termination, Mr Williams had raised a dispute with management and had organised and chaired a stop work meeting in the context of that dispute. ACI contends that Mr Williams’ alleged status as a delegate of the applicant Union played no part in its dismissal of him. The critical question for determination is whether, on the balance of probabilities, ACI has proved this contention to be correct. Ancillary questions arise, including whether Mr Williams can be regarded as a delegate for the purpose of the current proceeding.

The legislative context

2                     It is unlawful for an employer to dismiss an employee for a reason which includes the reason that the employee is a delegate of an industrial association. That is the combined effect of ss 298K and 298L(1)(a) of the Workplace Relations Act 1996 (Cth). Section 298V is a reverse onus of proof provision. Its effect is to require the employer to prove that the prohibited reason, such as delegate status, was not a reason for the termination, in the sense of not being an operative factor in the reasons for the dismissal; see General Motors Holden v Bowling (1976) 12 ALR 605 at 616, per Mason J and Maritime Union of Australia v Geraldton Port Authority (1999) 93 FCR 34 at 69, per Nicholson J.

The delegate

3                     Mr Williams commenced employment with ACI in 1986, after completing high school. He served an electrical apprenticeship at ACI’s Spotswood plant, in the western suburbs of Melbourne. Following the completion of his apprenticeship as a maintenance electrician, ACI employed Mr Williams until his termination on 12 October 2005. Apart from a three month secondment to the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia from March to June 2005, Mr Williams has known no other employer than ACI.

4                     In 1995, the Union’s members at the Spotswood plant elected Mr Williams as a deputy shop steward. Rule 23.1.3 of the Rules of the Electrical Division of the Union provides for the election of Union shop stewards. The Union notified ACI of this appointment. Mr Graham Newman is the other shop steward at the plant who represents the Union’s members, having been elected in 1991 or 1992. Although originally elected as a deputy shop steward, over time, Mr Williams has attained equal standing with Mr Newman as a shop steward and has been recognised as a shop steward by ACI management.

5                     Until his dismissal, Mr Williams represented the Union in discussions with ACI management which recognised him and treated as an accredited representative of the Union in accordance with cl 17B of the ACI Glass Packaging Melbourne – Maintenance Employees Certified Agreement 2003. In particular, ACI management relied upon Mr Williams in his capacity as a Union shop steward to comply with the requirement to consult the Union prior to the use of contractors via the “CL2 system”. The CL2 system, as detailed in cl 21 of a document called the “Heads of Agreement between ACI Glass Packaging Spotswood and CEPU Electrical”, relates to a process of advice and consultation prior to the use of a contractor at the Spotswood site. ACI management advises its electrical maintenance employees of the use of a contractor by providing what is known as a CL2 form to a shop steward. On its face, the CL2 form requires a number of signatures, including those of ACI management and a shop steward. On the occasions which related to electrical contractors, Mr Williams signed the form as the shop steward representing the Union.

6                     That Mr Williams was at times described as a “deputy shop steward”, in accordance with the terms of his original election, does not mean he is not a delegate of the Union. A deputy shop steward is a type of shop steward. The adjective “deputy” signifies no more than that there is another shop steward representing the Union who has more senior status than the deputy. Junior counsel, for example, is still a member of counsel, despite the adjective “junior”. There is nothing in the certified agreement or the Rules of the Union which only allows one shop steward to represent the interests of the Union’s members at a particular plant. Mr Williams was “deputed to act for or represent another or others”, all of whom were fellow members of the Union; see Cuevas v Freeman Motors Ltd (1975) 25 FLR 67 at 73 and Plumton v Cathay Hotel Pty Ltd (1987) 21 IR 410 at 416. It is sufficient that he is a representative of the members of the Union as Plumton shows. The written submissions of counsel for ACI mistake this aspect of Plumton. The only reason Mr Plumton did not qualify as a “delegate” in that judgment was that he purported to represent not just the union members but the workforce as a whole, both unionist and non-unionist. As a matter of fact Mr Williams was a delegate of the members of the Union at Spotswood. ACI management knew this and treated him as such. The contrary contention is fanciful.

7                     The Union has established that Mr Williams, at the time of his termination, was a delegate of the Union for the purposes of s 298K(1)(a).

Contractors

8                     Not all electrical work at the plant is performed by ACI’s maintenance electricians. As discussed above, when ACI engages contractors it will generate a CL2 form. Since 1999, a practice has developed at the plant whereby contractors coming on to the site to perform electrical work must, as a matter of general practice, satisfy the following criteria:

·                    the existence of a certified enterprise bargaining agreement with the Union;

·                    the provision of a 35 ordinary hours’ working week to employees; and

·                    the provision of payment to employees at not less than the ACI rate of pay.

9                     Where ACI seeks to engage specialist contractors, their use is determined on a case by case basis in accordance with the CL2 system of consultation with the Union. Where ACI requires a contractor to attend the site in an emergency the above practice is departed from.

10                  Since 1996, only one or two disputes a year have arisen at the plant concerning ACI’s use of electrical contractors, despite ACI generating up to two CL2 forms per week. In most cases, discussions between shop stewards and ACI management representatives have resolved any outstanding issues, without disruption to work. On occasions unauthorized stop work meetings have occurred over ACI’s use of contractors. However, since 1996 there has been a significant reduction in the number of stop work meetings at the plant in the electrical maintenance department. In the main, the meetings have been of short duration and the subject of prior notification to management.

MDA – August 2005

11                  In August 2005, an electrical contractor called MDA Power Technologies Pty Ltd came on to the site to perform some emergency work. There is no evidence about whether MDA employs any person. There was a suggestion in the evidence that the principal of the company may be its only operative. On this occasion, ACI did not provide a CL2 form to Mr Williams prior to MDA coming on site because of the emergency situation. After MDA left the site, Mr Williams received advice from the Union that MDA did not have an enterprise bargaining agreement. In the event that MDA could be described as a genuine specialist contractor performing emergency work, the existence of an agreement may not have been relevant. As such, at the time because of the emergency situation, Mr Williams did not consider whether MDA fitted that description.

The team co-ordinator

12                  In October 2005 until his dismissal, Mr Williams performed the role of team co-ordinator. From time to time, seven of the twenty-two maintenance electricians at the plant fulfilled this role. Among other tasks, pursuant to the direction of the electrical supervisor, Mr John Pillen, the team co-ordinator allocates particular jobs to particular electricians. The team co-ordinator also prioritises tasks requested by supervisors responsible for other areas of the plant.

The use of MDA on 12 October 2005

13                  On the morning of 12 October 2005, ACI required MDA to attend the site. ACI had requested Nilsen Electric (Vic) Pty Ltd to perform the work in question. Nilsen subcontracted the work to MDA. The work essentially involved the replacing of temporary batteries which had been installed in August 2005 and the adjustment of the regulator on the battery charger.

14                  At about 10.00 am on 12 October 2005, Mr Pillen gave Mr Williams a CL2 form concerning MDA. He told Mr Williams that he would require two maintenance electricians to perform the isolation work. Mr Williams did not accept MDA as a genuine specialist contractor, in respect of the work required of it that day. He considered that ACI’s maintenance electricians had the requisite competencies to perform the work. He made an inquiry with the Union concerning whether MDA had an enterprise bargaining agreement. That position had not changed since August. Mr McKay, at the Union office, also told Mr Williams that MDA’s involvement at the site resulted in a breach by Nilsen of the agreement binding it which contained a prohibition on pyramid sub-contracting.

15                  The first conversation between Mr Pillen and Mr Williams that morning resulted in Mr Williams contacting the Union office for information about MDA as outlined above. In the second conversation, shortly after the first, Mr Williams told Mr Pillen that ACI electricians could do the work which MDA had been asked to do, under the supervision of MDA. Mr Pillen rejected that approach.

16                  By about 11.10 am on 12 October 2005 MDA had come on to the site. Mr Williams and Mr Pillen then had a third conversation. Mr Pillen asked Mr Williams who he had available to assist MDA. Mr Williams told Mr Pillen that he considered a dispute existed between the Union’s members and ACI about the use of MDA. He asked Mr Pillen to abide by past custom and practice. By this he meant that MDA should not start work until he and Mr Pillen (or other relevant management representative) resolved the issue or until it was resolved at a higher level in accordance with a settlement of disputes procedure. Mr Pillen refused to accept the existence of a dispute. He walked away from Mr Williams and directed two electricians to assist MDA. He made no complaint to Mr Williams that Mr Williams had not put the contents of his dispute in writing or that Mr Williams was in breach of any dispute settlement procedure.

17                  One of those directed by Mr Pillen, Mr Gusman, asked Mr Williams what was happening with MDA. He told Mr Williams that he didn’t know what to do. Mr Williams consulted Mr Newman. They decided to call a stop work meeting. They wished to avoid uncertainty and confusion among electricians regarding MDA, in the context of Mr Pillen refusing to acknowledge the existence of a dispute.

The stop work meeting

18                  The electricians assembled in the lunchroom at about 11.15 am on 12 October 2005. Mr Williams addressed the meeting. There is a dispute in the evidence whether, shortly after the meeting began, Mr Pillen knocked on the door of the lunchroom and demanded that everyone return to work. Mr Pillen denies doing so. It is unnecessary to resolve that issue.

19                  There is no dispute that a few minutes into the meeting, Mr Pillen knocked on the door of the lunchroom and said that he had Mario Minniti on the telephone. Mr Minniti is the electrical co-ordinator at ACI and the person to whom Mr Pillen reports. Mr Minniti’s function is a recently created one. He commenced to perform it on 3 October 2005.

20                  Mr Pillen said that Mr Minniti wanted to talk to Mr Williams. After some initial reluctance to disturb the meeting, Mr Williams relented and stepped outside the lunchroom to take the call. Mr Pillen handed Mr Williams a telephone. Mr Williams said “hello”. Mr Minniti then spoke.

21                  According to the evidence of Mr Williams, Mr Minniti yelled at him in a loud manner and said:

“Get out of the canteen and get back to work.”

22                  Mr Williams said that he did not appreciate the way Mr Minniti spoke to him. Instead of engaging in a debate with Mr Minniti, Mr Williams put the telephone down and returned to the meeting to discuss what Mr Minniti had just said.

23                  Although not denying that he used the words attributed to him by Mr Williams, Mr Minniti denied speaking to Mr Williams in a raised voice. He said that he spoke in a voice which made it clear to Mr Williams what needed to be done. I do not accept Mr Minniti’s denial about speaking in a raised voice. It is significant that during his cross-examination on this topic, Mr Minniti, not infrequently, sought to engage senior counsel in debate. Further, despite a calm cross-examination, Mr Minniti, at times, answered senior counsel in an aggressive tone.

24                  I consider that Mr Williams’ decision not to engage in further discussion with Mr Minniti to be understandable, given the overbearing and provocative way Mr Minniti spoke to him. I accept Mr Williams’ unchallenged evidence that no-one had spoken to him in such a manner in nearly twenty years of employment at the Spotswood plant.

25                  After putting down the telephone, Mr Williams returned to the meeting. He gave evidence that he intended to tell the meeting what Mr Minniti had said and then adjourn the meeting until 12 noon, which was lunchtime. I have no reason to doubt that evidence.

26                  Mr Williams told the meeting what Mr Minniti said. A discussion ensued about what Mr Minniti meant by “the canteen”. The lunchroom is not the canteen. The canteen is elsewhere at the site. The confusion arose because Mr Pillen told Mr Minniti the meeting was in the canteen. After the meeting left that topic, Mr Williams was about to move the adjournment of the meeting. By then there had been a discussion about the desirability of that course to ensure that management did not stand anyone down. Before Mr Williams could formally move the adjournment motion, Mr Pillen interrupted the meeting again.

27                  By the time Mr Williams opened the door to Mr Pillen, about five to twelve minutes had elapsed since Mr Minniti’s demand. In the context of the confusion about the canteen and the need to have the many electricians there assembled understand the significance of the adjournment, it is not surprising that a time period of up to twelve minutes had elapsed without the meeting being adjourned.

28                  Mr Pillen told Mr Williams that his employment was terminated on the instruction of Mr Minniti for “not following company instructions”. Mr Williams asked Mr Pillen what instructions he had failed to follow. Mr Pillen did not respond. Mr Williams then went back into the lunchroom and informed the Union’s members about what had just occurred. Mr Pillen also went into the lunchroom and told Mr Newman that the meeting was over. Mr Pillen directed the electrical maintenance employees to return to work. They refused. Mr Pillen told them that ACI would take action against them under s 127 of the Act. The purpose of a s 127 application is to stop industrial action.

Different treatment

29                  Not one of the striking employees had his employment terminated. ACI did not take disciplinary action against them. However, it dismissed Mr Williams, on Mr Minniti’s evidence, for failing to follow three or four (he was not sure which) instructions from management when Mr Williams occupied the role of team co-ordinator.

Mr Williams’ intentions

30                  Mr Williams gave evidence, which I accept, that without interruption the meeting would have continued for approximately thirty minutes. He said that the likely result would have been that the required assistance would have been given to MDA, under protest. Mr Williams said that he had no issue with genuine specialist contractors coming on site but said that the Union’s position is that a specialist contractor is a contractor whose workforce has licences or competencies which are not held by the in-house electricians. The effect of Mr Williams’ evidence was that he considered there was room for genuine debate about whether MDA fitted this description.

31                  Mr Pillen did not consider there was any room for debate about whether MDA was a specialist contractor and refused to acknowledge the existence of a dispute. This is despite the fact that in his evidence, Mr Pillen acknowledged that when Mr Williams put the matter in dispute he did so in his capacity as shop steward.

The decision makers

32                  Mr Michael Gilholme is the Regional Employee Relations Manager for ACI. On 12 October 2005 in the late morning, Mr Gilholme was in the company of Mr Minniti at the Brisbane domestic airport, both having recently alighted from a flight. At that time, he overheard a telephone conversation between Mr Minniti and Mr Williams during which he heard Mr Minniti direct Mr Williams to return to work.

33                  Mr Minniti told Mr Gilholme that Mr Williams had not followed properly authorised instructions and that the latest occasion was the third or fourth such failure that morning. Mr Minniti recommended Mr Williams’ dismissal to Mr Gilholme.

34                  Mr Gilholme had the ultimate authority to dismiss Mr Williams. He exercised that authority summarily and did so notwithstanding the provisions of the disciplinary code which applies at Spotswood. That code is an attachment to the 2003 certified agreement which binds ACI, the Union and another union.

35                  Clause 5 of the code provides:

“The Company views proven acts of serious and wilful conduct as very serious, and as such, employees in question are liable to instant dismissal with no payment in lieu of notice.

In any case which may lead to instant dismissal, the Personnel Department and relevant Union/Official delegate must be notified as soon as the circumstances surrounding any likely dismissal are known. This will allow for an investigation to be conducted which will permit witnesses to be consulted. The offending employee should be suspended from duty with pay whilst the investigation is undertaken. In this way, a properly considered decision can then be made and conveyed to the employee.”

36                  Each of Mr Gilholme and Mr Minniti said the disciplinary code did not apply to Mr Williams because there was nothing to investigate, given that he had failed to follow instructions. This is despite the fact that Mr Gilholme had no idea what Mr Williams intended to do after being spoken to by Mr Minniti. Mr Gilholme was in Brisbane. He relied on Mr Pillen’s apparent observations as re-told to Mr Minniti about what occurred in a meeting. These second hand observations were based on matters in which Mr Pillen had little direct involvement, apart from being a source of interruption to the meeting. Mr Gilholme knew nothing of the underlying dispute about MDA. He also had no idea about what action Mr Williams intended to take to give effect to Mr Minniti’s demand. His decision cannot be described as “properly considered”.

37                  Mr Williams’ termination involved ACI in a clear breach of the provisions of the disciplinary code. ACI’s disregard of the code and its assumption that there could not be another side to the story suggests strongly that it was keen to be rid of Mr Williams, even if it meant acting contrary to law. The uncontradicted evidence is that no other worker has been treated like that before by ACI, by being denied access to the disciplinary code, in circumstances alleged by management to warrant summary termination.

38                  Mr Gilholme denied that Mr Williams’ status as a delegate was part of the reason for his termination. Mr Gilholme gave evidence that he dismissed Mr Williams because of his team co-ordinator status. I do not accept that evidence in either respect. Mr Gilholme did not know what, if anything, Mr Williams had refused to do in his capacity as a team co-ordinator, pursuant to any direction by Mr Pillen, after Mr Pillen had himself allocated electricians to assist MDA.

39                  Mr Gilholme asserted, on the advice of Mr Minniti, that Mr Williams refused to obey instructions on three or four occasions. He could not say with any certainty what the three or four instructions were. He asserted that there were two instructions to Mr Williams from Mr Pillen to allocate electricians to work with MDA. In fact, Mr Pillen told Mr Williams that he would require two electricians. Mr Williams then did some checking on MDA with the Union before putting the issue in dispute. Mr Gilholme and Mr Minniti, in this regard, count one refusal as two. In any event, Mr Minniti conceded that the failure to allocate electricians to assist MDA was deserving of a warning only.

40                  Mr Gilholme said the “three or four” times depended on one’s view about Mr Williams not coming out of “the canteen” when requested by Mr Pillen on “numerous occasions”. On Mr Pillen’s evidence, he only told the electricians to keep working before the meeting started. He denies entering the lunchroom to tell the electricians to stop the meeting and go back to work, immediately after the meeting started. However, it is uncontroversial that Mr Pillen did enter the lunchroom when he sought to have Mr Williams speak on a telephone to Mr Minniti.

41                  The real event which actuated Mr Minniti and caused him to recommend the termination was the advice from Mr Pillen that Mr Williams had put the telephone down while Mr Minniti was speaking to Mr Williams. Mr Gilholme said that that was the critical instruction. Mr Minniti gave similar evidence.

42                  Mr Williams’ putting the telephone down was the critical factor in Mr Gilholme’s decision to authorise the termination. That is so, despite the fact that Mr Williams was in the process of conducting a meeting, in his capacity as a delegate. As adverted to above, Mr Gilholme assumed that Mr Minniti’s instruction would not be carried out. It is entirely understandable that Mr Williams would put the telephone down when he was spoken to by Mr Minniti in the manner referred to at [24] above.

43                  I do not accept Mr Gilholme’s evidence that he did not dismiss the other electricians because they were not team leaders. The other electricians had engaged in strike action, a fundamental breach of their employment contracts. It is harder to imagine a stronger refusal to accept instructions than one to refuse to stop striking. Mr Gilholme’s reliance on the team co-ordinator status of Mr Williams, like that of Mr Minniti, is lacking in credibility. Mr Minniti could not point to any instruction, as a team co-ordinator, which Mr Williams had refused after Mr Pillen had himself allocated electricians to assist MDA.

44                  I do not accept Mr Minniti’s evidence that he did not dismiss the other electricians because ACI had applied to the Australian Industrial Relations Commission under s 127 of the Act. Mr Minniti had returned to Melbourne by late on 13 October 2005. The s 127 application was not then before the Commission.

45                  In his evidence, Mr Minniti conceded that the meeting in the lunchroom was a Union meeting. He said that he did not know who conducted it but thought it may have been one of the shop stewards. Mr Minniti did not know what work there was to be allocated by the team co-ordinator at the time of the meeting. The critical issue, as he saw it, was Mr Williams’ refusal to talk to him on the telephone. In his evidence, Mr Pillen did not identify any specific instruction by him to Mr Williams as team co-ordinator, other than the one to assist MDA.

46                  Mr Minniti denied that the recommendation he made to Mr Gilholme for Mr Williams’ termination was because of Mr Williams’ delegate status. That denial is not accepted. It is contrary to the evidence. The recommendation was a reaction to reports by Mr Pillen to Mr Minniti of conduct taken by Mr Williams in his capacity as a delegate. Even if other reasons actuated Mr Minniti, the prohibited reason is incapable of being divorced from them in all the circumstances.

Breach of s 298K

47                  Even if Mr Williams’ conduct can be viewed objectively as involving a failure to follow lawful instructions, at all relevant times during such failure, he acted in a representative capacity. First, he put the Union’s position to Mr Pillen about MDA. Second, he exercised what he saw as his representative role in advising the Union’s members about the matter he had sought to put in dispute with Mr Pillen. I do not accept that the fact that Mr Williams was a delegate was not a reason which actuated Mr Minniti to recommend the dismissal of Mr Williams. Similarly, I do not accept that this fact did not actuate Mr Gilholme to effect the termination. More significantly, ACI has not proved, on a balance of probabilities, that it was not so actuated; see s 298V of the Act. Mr Williams’ status as a delegate was an operative factor in his termination. At the very least, I am satisfied that ACI has not discharged its onus of proof in that regard.

48                  I consider a breach of s 298K occurred for the prohibited reason contained in s 298L(1)(a). It is not necessary to consider whether Mr Williams’ was also dismissed because of his status as an officer or member of the Union. The relevant breach having been established, it is also strictly unnecessary to consider whether ACI was also actuated by the prohibited reason contained in s 298L(1)(n). Section 298L(1)(n) does not operate to cut down the effect of s 298L(1)(a); see Elliott v Kodak (2001) 108 IR 23 at [27] to [49].

49                  In Bowling at 619-620, Mason J referred to a submission by GMH that the activities of a shop steward, for the purposes of the then relevant anti-victimisation provisions, fell under s 5(1)(f) of the Conciliation and Arbitration Act 1904 (Cth), a predecessor of ss 298K and 298L(1)(n) when read together. Mason J said at 620 that:

“So much may be conceded, but this does not avail the appellant in the present case because we are concerned not with activities undertaken by the respondent in his capacity as a shop steward but with activities otherwise undertaken and the example that he set to others in which his position as a shop steward was of particular significance.”

50                  This observation of Mason J is of no assistance to ACI. It does not support the proposition that one reads down s 298L(1)(a) by reference to s 298L(1)(n). It was merely an observation about the particular facts in Bowling and how Mr Bowling relied on his shop steward status in advancing the prosecution in that proceeding. The historical analysis undertaken in Kodak and Spender J’s observations in Plumton support the view that s 298L(1)(a) is not denuded of meaning in so far as delegates are concerned because of the existence of s 298L(1)(n). See also the Full Court in Bowling v General Motors-Holden Pty Ltd (1980) 50 FLR 79 at 94, referred to at [72] below.

51                  I consider the breach of s 298K to be blatant and serious. It also involved conduct in breach of the disciplinary code which binds ACI at Spotswood.

52                  There was a clear connection between Mr Williams’ shop steward status, his Union activity and his termination. No aspect of the conduct of Mr Williams which actuated ACI is divorced from his role as a delegate. ACI desired to be rid of Mr Williams, who it saw as an active shop steward and who had given it some grief on industrial issues. I am satisfied that Mr Williams’ termination arose, at least in part, because he was an active shop steward. He had been assiduous in representing the interests of the Union’s members at the plant over the last ten years and in so doing had incurred the displeasure of management on occasions. The Union members’ perceived attitude, in particular to the introduction of predictive maintenance at the plant, is an issue which led ACI to be displeased with the electricians and Mr Williams in particular as their representative.

53                  I am critical of ACI for its approach to Mr Williams. I consider Mr Minniti to be chiefly to blame for that approach, given the way he spoke to Mr Williams, his disregard of the disciplinary code and his inability to perceive that there may be another side to the story. Mr Gilholme also shares the blame for not rejecting as premature Mr Minniti’s recommendation. However, Mr Williams did not act entirely appropriately either. Ideally, he should have waited until lunchtime to hold the meeting. I appreciate that MDA would have performed its work by lunchtime but Mr Williams should have agreed under protest to MDA doing the work. A meeting then could have been arranged between a Union official and management to resolve the issue for the future.

54                  Notwithstanding that Mr Williams may have handled the dispute in a better way, his termination still arose as a reaction to his conduct which occurred in the course of his representative role. All the more remarkable is that dismissal occurred despite the fact that Mr Williams had worked for ACI all his working life, and is a competent tradesman with the capacity to make a worthwhile contribution to ACI’s electrical maintenance department. Even more disturbing is the fact that the dismissal occurred in arrogant defiance of the disciplinary code.

55                  Counsel for ACI, in their written submissions in reply, contend that Mr Williams cannot have been terminated because he was a shop steward, given that Mr Newman was not terminated, yet he also was a shop steward. This submission is rejected. Mr Williams’ profile as a delegate, especially concerning issues about contractors, was higher than that of Mr Newman. Mr Williams acted as the leading representative of the Union’s members at the plant on 12 October 2005. He chaired the critical stop work meeting. He had been singled out previously by Mr Gilholme as the person whom ACI was most disappointed in, having regard to the attitude of electricians to workplace change. Mr Gilholme expressed such disappointment to assembled electricians in a meeting which occurred after Mr Williams’ return from secondment to the Union.

Section 298L(1)(n)

56                  Although it is not strictly necessary to do so, I now turn to consider whether ACI has proved, on a balance of probabilities that the prohibited reason contained in s 298L(1)(n) of the Act was not a reason for the termination.

57                  The prohibited reason in s 298L(1)(n), so far as is presently relevant, is that a delegate of the Union has done an act, for the purpose of furthering the industrial interests of the Union, being a lawful act and one within the limits of the authority expressly conferred on the delegate under the Union’s rules.

58                  The evidence does not satisfy me that the s 298L(1)(n) reason was not an operative factor in ACI’s reasons for Mr Williams’ dismissal.

59                  Mr Williams’ dismissal occurred for two major reasons. First, he did not allocate labour to assist MDA. He took that approach because he notified a dispute to ACI about the use of MDA. That act was for the purpose of furthering the industrial interests of the Union, so that its members’ work is not given lightly to contractors.

60                  There was nothing unlawful about that act in the sense that it was not contrary to law; see Jarrad v Silver Top Taxi Service (1980) 29 ALR 533 at 535. The fact that it strictly amounts to a refusal to perform work as requested does not make it unlawful. There is no law which forbids or enjoins such behaviour. The Rules of the Union authorised Mr Williams’ approach to the allocation of labour to assist MDA. Under r 23.3.1.4 of the Rules of the Electrical Division of the Union, a shop steward’s duties include acting as a representative of the Union “in accordance with Award or agreement prescriptions”. There was nothing in any award or agreement which prevented Mr Williams taking the approach he did to the use of MDA. It was a natural consequence of the disputes procedure or practice operating at the site concerning contractors.

61                  The second main reason for the termination was the failing to stop the stop work meeting with sufficient alacrity, culminating in Mr Williams’ premature ending of Mr Minniti’s telephone discussions with him. Again, effecting the stop work meeting was:

·                    an act for the purpose of furthering the industrial interests of the Union and its members in the context of contractors;

·                    not in itself unlawful; and

·                    within the limits of authority expressly conferred by the Rules of the Union.

62                  Each of the acts of Mr Williams which led to his dismissal were legitimate representative acts taken by a Union representative in what he considered to be the interests of the Union’s members. The Rules of the Union authorised such actions and no unlawfulness attended them.

63                  Counsel for ACI referred to cl 11 of the certified agreement in support of the proposition that Mr Williams’ action was not authorised. Clause 11 provides a general dispute resolution procedure. That procedure requires an employee grievance to be placed in writing. A practice had developed at ACI Spotswood whereby disputes would be notified orally. This was the evidence of Mr Williams and Mr Newman. Mr Smith, the AMWU shop steward also noted that written notice is only sometimes given. Counsel also referred to that part of cl 11 which provides for the avoidance of stoppages of work while grievances are negotiated. This submission is somewhat ironic given that Mr Pillen refused to acknowledge that Mr Williams had a grievance.

64                  What may here be seen arguably as a mere technical breach of the dispute resolution procedure, in not putting the topic of the dispute in writing, is trivial in comparison to ACI’s wanton disregard of the binding disciplinary disputes procedure (referred to in part at [35] above) in summarily terminating Mr Williams without an investigation. In any event, it is by no means clear that the obligation to place a dispute in writing applies to disputes which are collective in nature as distinct from those which are limited to grievances of individual employees.

65                  In any event, I reject the submission that Mr Williams breached cl 11.6 of the certified agreement by breaching a commitment to avoid a stoppage of work whilst negotiations continued. Mr Pillen declined to enter negotiations. Accordingly, no breach of the requisite commitment can be established

66                  Counsel for ACI submitted that Mr Williams’ conduct itself was in breach of s 298P(3), being actuated by his knowledge that, absent an agreement, MDA was entitled to the benefit of an award applying to it. This submission is without foundation. First, counsel for ACI did not put to Mr Williams in cross-examination that he had any such knowledge or that he was so actuated. Second, the award in question is not before the Court and there is no evidence that MDA is bound by it. Third, there is no evidence that MDA is an employer. Fourth, Mr Williams did not propose that ACI terminate MDA’s services but rather that it supervise the work of the in-house electricians with respect to the batteries.

67                  I also reject the submission that Mr Williams engaged in an unlawful act by discriminating against MDA in breach of s 45 of the Building Construction Industry Improvement Act 2005 (Cth) or by coercing ACI by seeking that it not engage MDA. Mr Williams did not discriminate against MDA. He was content to have it come out and work on the site by supervising the work of the in-house electricians with respect to the replacement of the batteries. Any suggestion that Mr Williams intended to coerce ACI not to engage or limit the responsibilities of ACI has no foundation in the evidence. No requisite intent has been established on the evidence. It was never put to him that he ever had such intent, see Ponzio v Multiplex [2005] FCA 1410, at [59] to [64].

68                  I further reject the contention that Mr Williams induced other electricians to breach their employment contracts. Mr Williams called a stop work meeting. He did not force any co-worker to attend. At all times it remained a matter for them to attend if they so desired. The written submissions of ACI in reply assert that such a view is “naïve”. That description begs the question. There is simply no evidence to support the proposition that Mr Williams induced any electrician to breach his employment contract. In particular, there is no evidence that any electrician was directed by Mr Williams to attend the stop work meeting.

69                  I am satisfied that ACI has not discharged its onus of proving that it did not dismiss Mr Williams for reasons that included the reason contained in s 298L(1)(n) of the Act, in addition to the reason contained in s 298L(1)(a).

Reinstatement

70                  The application before the Court is one under s 298T of the Act for orders under s 298U. Under s 298U(b), if the Court has found that s 298K (amongst other sections) has been breached it may, if it considers it appropriate in all the circumstances of the case, make an order requiring the reinstatement of an effected employee.

71                  Mr Williams’ dismissal occurred in circumstances which the Court has found to involve a blatant and serious breach of s 298K. It is appropriate to make an order for reinstatement. Otherwise ACI is able to gain from its unlawful act by depriving the Union’s members at the plant of the benefit and service of an active shop steward. Failing to order reinstatement would also send a message to others who may seek to represent the Union’s members at the plant to be meek in their actions or face the same fate as Mr Williams. As the Full Court said in Bowling at 98;

“An order for reinstatement is intended as protection for an organisation, its members, officers and delegates. A further purpose is to ensure that members are not deterred from accepting a position as a delegate or an office by the fear of dismissal.”

See also Davids Distribution Pty Ltd v National Union of Workers (1999) 91 FCR 463 at [106].

72                  Earlier at 94, the Full Court in Bowling said:

“The policy and purpose of sub-ss.(1) and (4) of s.5 [compare current ss 298K, 298L and s 298V] is to protect organizations of employees and their representatives from discrimination and victimization by employers. Subsection (5) [compare current s 298U] gives effect to an essential feature of that policy and purpose of s.5. [compare current ss 298K and 298L]. It is essential that an employer convicted of an offence against the section should not benefit from the offence [now contravention] by ridding itself of an employee by reason of any one or more of the circumstances specified.” (emphasis added and updates provided to compare with current law).

73                  Later, at 94, the Full Court said that the Court should make an order for reinstatement “unless there are good reasons why the employee should not be reinstated, for example if the employee does not desire to be reinstated”.

74                  The Full Court also said, at 94, that in most cases the reasons relied upon to justify the dismissal will not be relevant to the reinstatement discretion because these are overridden by the finding that the Act has been contravened.

75                  There is no good reason not to reinstate Mr Williams. He has been treated harshly by ACI management, particularly by Mr Minniti and Mr Gilholme. He should have his job back as soon as possible and be relieved from the anxiety and insecurity which has afflicted him since the unfortunate events of 12 October 2005. On his return it is hoped that ACI will treat him with the respect and dignity and in return he will ensure that he will, though still being an active shop steward, be reasonable and similarly respectful in his dealings with management. It is noteworthy that ACI undertook not to fill Mr Williams’ position pending the outcome of this proceeding.

Compensation/penalty

76                  Under s 5(5) of the Conciliation and Arbitration Act 1904 (Cth) the Court had a discretion to order that an employee be reimbursed any wages lost by him or her. Section 334(7)(b) of the Industrial Relations Act 1988 (Cth) made the same provision. However, s 298U of the current Act, gives the Court power to order the payment of compensation to the affected employee of such amount as the Court thinks appropriate; see s 298U(c).

77                  I am not aware of any reported cases where the concept of “compensation” as such for breach of s 298K has been considered by the Court. In Australian Workers’ Union v Johnson Matthey (Aust) Ltd [2000] FCA 728 at [2], the Court noted the agreement of the parties that an employee should be compensated for his loss of one day’s wages. In that case the employer had breached both ss 170MU and 298K of the Act.

78                  A payment of compensation under s 298U(c) is not limited to reimbursement for lost wages. In this case, I consider that Mr Williams is entitled at least to be compensated for any wages lost by him as a consequence of his unlawful dismissal. That is the extent of the compensation sought by the Union. The written submissions of ACI did not address this issue. I will give ACI 14 days to address the Court in writing on the question of compensation and the appropriate penalty to be imposed. The Union will have a further 7 days to respond in writing on those issues.

79                  The appropriate penalty, if any, will need to be assessed bearing in mind the principles referred to in Construction, Forestry, Mining & Energy Union v Coal & Allied Operations Pty Ltd (No 2) (1999) 94 IR 231 at [8], per Branson J.

Associate:

Dated: 18 November 2005